Giorgio Agamben: Power, Law and the Uses of Criticism 0203859715, 041544022X, 9780415440226, 9780203859711

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Giorgio Agamben Power, law and the uses of criticism

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 and history, as well as in the humanities and social sciences more generally, Thanos Zartaloudis proposes 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. Thanos Zartaloudis researches and teaches at the School of Law, Birkbeck College of the University of London.

Nomikoi: Critical Legal Thinkers Series editors: Peter Goodrich Cardozo School of Law, New York David Seymour School of Law, Lancaster University, UK

Nomikoi: Critical Legal Thinkers presents analyses of key critical theorists whose thinking on law has contributed significantly to the development of the new interdisciplinary legal studies. Addressing those who have most influenced legal thought and thought about law, the aim of the series is to bring legal scholarship, the social sciences and the humanities into closer dialogue. Other titles in the series: Judith Butler: Ethics, Law, Politics, Elena Loizidou Evgeny Pashukanis: A Critical Appraisal, Michael Head Niklas Luhmann, Andreas Philippopoulos-Mihalopoulos Forthcoming titles in the series: Carl Schmitt: Law as Politics, Ideology and Strategic Myth, Michael Salter Henri Lefebvre: Spatial Politics, Everyday Life and the Right to the City, Chris Butler Deleuze & Guattari: Emergent Law, Jamie Murray

Giorgio Agamben

Power, law and the uses of criticism

Thanos Zartaloudis

First published 2010 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016 A Glasshouse book Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2010. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. © 2010 Thanos Zartaloudis All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Zartaloudis, Thanos. Giorgio Agamben : power, law and the uses of criticism / Thanos Zartaloudis. p. cm. 1. Agamben, Giorgio, 1942– 2. Law—Philosophy. 3. Criticism (Philosophy) 4. Justice (Philosophy) I. Title. B3611.A44Z37 2010 195—dc 2009045005 ISBN 0-203-85971-5 Master e-book ISBN

ISBN10: 0–415–44022–X (hbk) ISBN10: 0–203–85971–5 (ebk) ISBN13: 978–0–415–44022–6 (hbk) ISBN13: 978–0–203–85971–1 (ebk)

Jurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia [Jurisprudence is the knowledge of things divine and human, the knowledge of what is just and what is unjust] Ulpian φρνησιν ε ναι πιστµην κακων ˆ κα αγαθων ˆ κα ουδετρων [Phronesis is a knowledge of bad things and good things and (those which are) neither] Diogenes Laertius Precisely what is peculiar to language – that it concerns itself purely with itself alone – no one knows. Novalis Are we capable today of no longer being philosophers of the letter (Buchstabenphilosophen), without thereby becoming either philosophers of the voice or mere enthusiasts? Are we capable of reckoning with the poetic presentation of the vocation that, as a non-presupposed principle, emerges only where no voice calls us? Only then would tradition cease to be the remission and betrayal of an unsayable transmission, affirming itself truly as Über-lieferung, self-liberation and self-offering: hen diapheron heauto ¯ i, ‘one transporting itself ’, without vocation and without destiny. Tradition would then have truly for-given what cannot, in any sense, be presupposed. Agamben

Contents

1

Preface

ix

Sacred foundations: mythologemes of law and power

1

Introductory note 1 The alleged sacramental foundation of (common) law 7 On the dogma of The King’s Two Bodies 17 The distinction of absolute and ordinary powers 33 Reorientation 49 2

From transcendental sovereignty to neo-governmentality: the oikonomia of power

51

Introductory note 51 A genealogy of neo-governmentality: the paradigm of oikonomia 56 The Trinitarian doctrine 65 Providential theodicy 73 Government 80 Kingdom and glory 85 3

Secular sovereignty: a gigantomachy over a void Introductory note 95 The sovereign state and the art of government 101 Civil or legislative science 105 Commanding consensus 110 The paradox of legal sovereignty 125 The virtual state of exception 131 A gigantomachy concerning a void 137

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Contents

4

The biopolitical nomos of insignificant lives

145

Introductory note 145 The paradigm of the Homo Sacer 146 The production of bare life as a juridico-political act 153 Rethinking the biopolitics of bare life 163 The conditio post-politica of survival 169 Philosophical archaeology, historiography and criticism 175 5

The sacrament of power and the sacrament of language

185

Introductory note 185 The sacrament of language: the paradigm of oaths 187 The language of mystery, the mystery of language 203 The idea of language 212 Locating the place of negativity in language 221 From essential negativity to the language of profanity: the function of linguistic shifters 230 6

The experience of potentiality

239

Introductory note 239 Difficult being: thinking the thing-itself or on being without presupposition 240 ‘Language’ uncoupled from quotation marks 247 The motive of Agamben’s thought 251 The languages of law and philosophy: humachination 255 The dogma of ends: the absolving absolute 259 The experience of power: potentiality 265 The logic of contingency 271 7

The idea of justice

279

Uncoupling the ideas of law and of justice from the dogma of the foundation 279 Justice: the irreparability of the profane 285 From the messianic aporia of law to the euporia of justice 289 The idea of criticism: pure criticism 301 Bibliography Index

311 327

Preface

Power, life and thought The primary question in this work, apart from the obvious elaboration of the concepts of law, power and criticism or thought through the work of the Italian philosopher Giorgio Agamben, lies in the relationship between philosophy and law (and, to an extent, between religion and law). This question, however, is considered to be not just a theoretical investigation, but also a key element in the work of rethinking the concept and the practices of lawmaking and the understanding of human power in Western culture more generally. The work, thus, employs historical, philosophical and jurisprudential elements in studying the genealogy of these concepts, their formation and their limits. It also suggests that while philosophy and law can irritate each other, and have done so for centuries, they are not to be fused into one. If there is indeed no meta-legal yardstick any longer that can rule over the internal rationality of law-making, there is also no need to enclose legal thinking within law. Legal closure is accepted in this work as a matter of fact, but legal thought’s closure is simply not a good idea, historically and conceptually. It is also accepted that legal thought’s realm is that of possibility, that is, the attempt to study the positing of laws, their success and failure, with regard to the possibilities of law. From a wider philosophical perspective, as is proposed here, genuine thought does not only confront the possibilities of law, but also all other possibilities. This work will, thus, disappoint those who require a work of criticism or theory to recommend a new worldview, to proclaim a revolution even, and so forth. Nothing to recommend; instead: study. As a consequence of this work’s primary principle, then, another follows: the distinction between the juridical realm and the nonjuridical realm are not to be fused. All that thought can do is show the exposure of both realms in terms of their claims and limits. This is most fitting to Agamben’s thought, since a key focus of it is the relation between law and life, and in particular, the problem of the institutional integration of life into law. Life does not of course entail any

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normative essence. Law-makers, power mongers, policy-advisors and theorists in so-called modernity (and earlier) seek to conceal the merely positive nature of law-making and attempt to find their ultimate point of inauthentic support in the name of ‘humanity’, ‘the economy’ and the law itself. While the law can no longer pose any claim as to the truth of humanity, it maintains such a technique through claims as to the rights of humanity and other abstract fictions. It presupposes ‘humanity’ as its very own surplus value, which remains, for this work, a dangerous idea. It is also hypocritical since what is left behind, the living or dead waste of social and legal decisionmaking, is empirically observable and thus can render the claim of ‘in the name of the law’ or ‘universality’ empty of any meaning. For Agamben’s empiricism, legal and political decision-making (and indeed philosophical decision-making) have primarily based their authority upon the manufacturing of certain lives as insignificant, as well as on certain concepts that have been seized to make sense. In this respect, Agamben is not concerned with some universal attributee of law, but rather with the life of legal remainders or legal waste. Today, dehumanization ‘in the name of the law’ is an experience of entire populations. Such dehumanization presupposes a particular apparatus, which Agamben calls bare life, that is ‘mere humanity’, and it is in its name that the managerial benefactors of humankind assume the role of deciding who counts and who does not count as human, as worthy of protection. In the name of ‘bare humanity’ the law attempts desperately to locate a meta-yardstick, that it itself produces. The law has been thought historically through a pseudo-dialectics between a foundational power (i.e. a sovereign law) and a founded power (its immanent governance and execution); or, to use other terminology, a constituent and a constituted power. The key problem with such a way of thinking the law and the social plane is twofold: first, law and social praxis are conceived as separable, but their line of separation is drawn by the law. Second, the potentiality of law and of power are defined ‘negatively’ and are posed in relation to an alleged transcendental righteousness, which apparently forms the only available motor of reality production and by consequence the only determinant of what is possible and what is not. The mythological presupposition of the existence of such a transcendental righteousness or power is grounded through the violence of the so-called foundations or sources of law or power, which rely, in turn, upon the presupposition of distinction between a pre-political, pre-legal or pre-historical human nature (bare life) and a legally qualified, social or political culture (citizenship), removing each time from the archival memory of institutions the fact of such transcendental foundations being ‘a product of man’, an action. For Agamben, this is akin to the manner of sacrifice, the oldest human institution. Within such a sacrificial initiation or transmission, Agamben notes, ‘An action (a sacrum facere) is abandoned to itself and thus becomes the foundation for all legal behavior; the action is that which

Preface

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remaining unspeakable (arreton) and untransmissible in every action and in all human language, destines man to community and to tradition.’1 By concealing the historicity or experience of the production of such foundations a transcendental source of power and legitimacy is hypothesized to which only the messengers and functionaries of its mystery can make legitimate claims. Social life is in this sense grounded counter-factually in an allegedly simple transcendental origination that is to remain inaccessible, immemorial and unthinkable, turning life and thought into what can be called a tragic experience that remains imprisoned in agenealogical paradoxes. Today, Agamben diagnoses the ‘state in which we live’ as characterized, legally and politically, by an extensive state of exception or emergency that threatens to cover the entirety of the globe. This is a dangerous state of affairs since despite the absence of any legitimate meta-yardsticks, governments around the world claim to possess an ultimate yardstick in the name of security, the law, human integrity and the liberal ideals of the free market. The history of this dangerous schema of understanding the law and its practice is a long one, enabling the commitment of atrocities that remain legally and ethically unaccountable and its genealogy is a key preoccupation of the analysis that ensues in this work. To the silence of law-makers, politicians, judges, theorists and policy-makers who attempt to bypass the fact of their making of laws, of their authorial saying, philosophical thinking offers at least some arguments that stand firmly opposed to such a logic. It could not be otherwise, since the condition of philosophy is that it must necessarily speak of something, and also of the fact that it does so (a quality or manner to which the law does not admit). The idea of justice that is considered in this work, philosophically, aims never to cease to remind us of this very fact. Given that the book is published in a series on ‘critical legal thinking’, it seems necessary to state clearly the position of the author with regard to such a manner of thought. It is an assumption of this work that, as far as its legal readership is concerned, some of us, it is to hoped, are by now tired and unconvinced by both the narrow-mindedness and counter-factuality of certain conventional accounts of jurisprudence that close legal theory within law, as well as by the naïve hyperboles of certain unconventional, ‘post modern’, accounts, which effect the inverse. The first approach obsesses over the determinacy of the law and the other over the indeterminacy of the law. Both are myopic and inadequate; and without acknowledging it, both depend on each other. Crucially, both very rarely provide an account for the fact of their construction as theories, nor for their assumptions and their limitations. Furthermore, it needs to be said that as far as homo academicus is concerned, more generally, in the peculiar world of the academy, now that the myth of an academic community has collapsed for good, and now that it is more than obvious that theories are raised mostly for careers to be built without 1 1991: 105.

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scholarly rigour and while ignoring the need for a careful study of legal knowledge-making, thought is experiencing a crisis of funding, as well as of genuine purpose. With regard to law my theoretical engagement, here is an attempt to rethink the law as such (as well as to consider escape routes from it when necessary) given that what I call the four classic paradigms of legal theory have lost their meaning. The four paradigms in brief are: the reference paradigm, the resort to presupposing a meta-reference of law in the names of both external and internal sources, that is, natural law, divine law or a selfsufficient law. The salvation paradigm, the attempt to justify law and order to progress allegedly from the factus brutus of violence and disorder as well as the positing of an ideal of justice as the law’s end – which includes the theoretical salvations that certain critics of the law promote. The universality paradigm, the still prevalent attempt to impose one legal culture and law upon all others globally. Finally, the consensus paradigm, the refusal to admit to a social consensus – a ritual that is now mediated, not by the state or the law, but by the mass media. As Anton Schütz has never ceased to remind me over the years, the obvious point as to law-making remains to be acknowledged in its profanity: the law is an apparatus, a mechanism for allowing certain arguments and decisions to be made. The law is a system wherein decisions are made and as such they can only be preceded and followed by other decisions. A modest legal theory, in this view, is to concentrate on the making of laws and further to examine their history and their possibilities. In addition, this work advances the argument that beyond such legal theorizing, a necessary inquiry remains as to the relationship of law to philosophy (and by implication, historically speaking to religion). In this sense, over the last ten years my primary and most intimate interest in Agamben’s thought, and philosophy more generally, has been twofold. First, my interest lies with Agamben’s inquiry into what can be called the structure(s) of Western metaphysical thinking, which is an inquiry into the manner in which these transmissions or projections are thought: the architectonics of metaphysics. Second, my interest lies with Agamben’s engagement with thought at the moment when thought tries to think itself; the point where it attempts to coincide with the generic potentiality of human being and social praxis itself. Thus, the study contained in this book undertakes an analysis of Giorgio Agamben’s writings from the early seventies onwards with particular emphasis on Agamben’s understanding of power, life, law, language, ontology and thought, and with regard to the trivium (the intersection) at which these meet. Over the last ten years Agamben’s work has become known to a wider audience, particularly due to the famous theses advanced in Homo Sacer – Sovereign Power and Bare Life (1998). Yet readers of his work, in particular within the fields of law, politics and philosophy, have persistently disregarded what is understood here to be both necessary and key: the investigation of the innovative, meticulous, systematic philosophical

Preface

xiii

archaeology of the polymorphous elements of Agamben’s philosophical theses that are located in seemingly disparate areas of interest (such as literature, philosophy, anthropology, linguistics, theology, historiography, ethics, law, politics and epistemology). It is also worth noting that what is at stake in reading Agamben’s writings is an experience of reading and thinking as such, rather than the extraction of prescriptive arguments and conclusions. This is crucial since the heart of Agamben’s philosophy is expression and the experience of language. Alice Lagaay and Juliane Schiffers have described this difficult experience with great clarity when they suggest that Agamben’s thought and the concepts and phenomena that he investigates: [. . . show] the limitations of language – and not just of academic discourse! For a start, the discursive boundary between event and experience, between the particular or the individual and the general does not seem to hold with regard to such phenomena. Agamben’s figures of thought are paradigms in the sense of concrete phenomena that can be transposed into other, different fields in order thereby not only to reveal what otherwise would remain concealed, but to bring into focus the very problem of categorial boundaries themselves. The question thus points to the event itself: to what happens when thought no longer preoccupies itself with weighing up the pros and cons of an argument but instead turns towards itself, that is, becomes self-referential and thus, to a certain extent, without distance to itself.2 For this reason some readers of Agamben see his work as irrelevant to rethinking the ideas, for instance, of law, power, politics and ethics. To state the obvious, relevance is a problematic operation since it presupposes the alleged relevance of something to something else on the basis of a presupposed yardstick that is taken for granted and which forms the so-called condition of possibility of relevance. Yet this is indeed the problem that is at stake in Agamben’s thought, that is, the rethinking of such a presupposed condition of relevance or possibility and more generally the rethinking of the very act of transmission of traditions as a problem, as an embarrassment even, rather than as a presupposed and unthinkable dogma. This is explored in various ways in this study as to the particular manner in which the obsessive search for the essence or origin of language, humanity, power, politics and law has been thought in the Western tradition (and especially so in philosophy, law and theology with emphasis at the points at which their traditional approaches intersect). Yet to the chimera of the obsessive search for origins in the Western tradition the only appropriate response

2 Alloa and Lagaay, 2008; Lagaay and Schiffers, 2009.

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appears to be, for this book, the study of both legal and of social praxis itself, which cannot be pre-empted or pre-ordered by any alleged pre-existing principles of validity and authorization. If there is no metaphysical vantage point from which to observe the form and decision-making of the law and the life of social praxis, then, if one is not to be a mere believer or a mere enthusiast (in what allegedly appears radical and subversive in a campaign against a system or a tradition), a genuine realignment of thought and praxis is at stake – a realignment that does not succumb to the pseudo-dialectics between first principles and action, theory and praxis, truth and thought and which recognizes power (human action) in its intimate link with desire, potentiality and language. Unless we accept counter-factually that the notions of ‘secular humanity’, the ‘free market economy’ and the ‘free world’ are today the transregional authorities whose factual, ethical and legal scrutiny is unnecessary, then the experience of the emptying-out of our everyday lives and our political or social praxis requires to be rethought more attentively. We are told daily that these newly founded principles of the ‘new world order’ in their rightful garments of sovereignty and ultimate human dignity, their renewed claim to a transcendental righteousness, are the only motors capable of giving meaning to reality. When one examines their mechanisms of administration and capture of reality, however, one can point to their counter-factual basis: according to these terms social praxis does not produce meaning. That is, a particular understanding of praxis, possibility and actuality is at stake. This difficult freedom of human being is what is at stake if desires and aspirations are not to be reduced by the pre-emptive organization of potentiality through an alleged transcendental principle of power and its pseudodialectics. In this manner of thought and experience politics, law, human being and desire are not segregated from the complexity and tensions of their actual experience and are not reduced or exhausted in their so-called actuality. To put it simply, if we assume that we ‘always-already’ know what politics, law, human being and our imagination can do, then we might as well abandon all other aspirations. For Agamben, the key is to rethink life and thought in a way that shows the counter-factual presupposition of a transcendental righteousness or of an essential determination and to point instead to the experience of life and forms of thought at the trivium of their coincidence, wherein they cannot be anticipated or normatively determined by any alleged foundation or principial authority. Agamben’s theses in his various works offer an attempt to think ‘the time in which we live’ and many of them have proven prophetic such as, among others, the fact of the legal lawlessness of a state of exception that has become the rule and that threatens to encompass the globe in the name of the so-called war on terror; further, the exposition of the irresponsibility of economic government, the replacement of thought by marketing, policy, proceduralism and spectacularization, the origin of Western politics in

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biopolitics (where the fiction of bare life as such is at stake) and the total demodalization of experience and life more generally. Agamben’s studious insistence that a new experience of life, law, thought and language will only be made possible through a rethinking of the ontological categories of life, thought and time is an insistence to which this work is entirely sympathetic. The task, if it is one, of criticism with regard to the traditions of law and power is to eliminate the fundamental partitioning that is each time presupposed between the potentiality of law or power (human action) and of their actuality by encountering the manner in which the limits of law and power have been founded and exposing them as mythologemes, as apparatuses of law and power that safeguard their self-sufficiency. In this sense criticism does not refer to a critique of law ‘in general’ or to a critique of a particular legal issue, but to the critique of the mythological-limit concept of legal foundations. The study proceeds to examine in Chapter One the genealogy, historical and philosophical, of the so-called foundational assumptions of legal and political power from medieval scholasticism to modernity. In doing so it suggests that a key technique of defining power that remains influential today is located in the early scholastic distinction devised by theologians as much as by canonists, between absolute divine power and ordinary divine power. Chapter Two engages in detail with Agamben’s book titled Il Regno e la Gloria: Per una genealogia teologica dell’economia e del governo (The Kingdom and the Glory: A Theological Genealogy of Economy and Government), which was published in 2007. It forms a key work for this study as a whole. Given the current and continuous proliferation of discussions on the relationship between secularisation and religion, law and politics, law and religion and the economy and politics, the unique archaeology of government undertaken in Agamben’s recent book deconstructs what seem as common assumptions and delimitations between, for instance, law and religion or law and government in such discourses. Agamben’s analysis shows that power, from the start, has been conceived along the lines of a distinction of powers, between an absolute power (or reign) and an administrative, vicarious, power of government. The target of proper critique has to be, then, directed, in this sense, not any longer at the mythological foundations and discourses of sovereign law and power, but, after their exposition, towards the messengers or functionaries who economically (functionally) administer, execute and police the laws and policies authorized by what they presuppose (but conceal) as an empty throne of sovereign or transcendental power and law. The structure of the schema ‘in the name of the law or sovereign power’ is located, for Agamben, in the apparatus of what he calls oikonomia. Chapter Three examines the so-called discourse of political theology and its implications for the understanding of law and power in light of Agamben’s critique of political theology as an apparatus of sovereign power in itself. Chapter Four examines the production of a particular type of subjectivity under the ‘reign’ of so-called sovereign power, which takes its name from a

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historically specific legal ritual in Roman law with regard to the dogma of the ‘sacred man’ (homo sacer). The chapter situates this particular mode of production of humanity, in the name of a so-called bare life or mere life, within the contour of current biopolitical government. Chapter Five begins to resituate Agamben’s analyses within their larger philosophical significance and it looks in particular at the specific understanding of the experience of language that Agamben rethinks. Chapter Six furthers this resituating by examining Agamben’s philosophical understanding of the notions of power (potentiality), contingency and time. Chapter Seven engages with the messianic trope of Agamben’s analysis of the notion of time in order to suggest a particular manner of rethinking the notions of law and justice through my own philosophical inquiry into the ideas of law and justice. It needs to be stated, finally, that this work is not a mere introduction to the work of Giorgio Agamben, though its readers may find that it offers such an introduction in its own way. It is, instead, a particular engagement with Agamben’s thought, that is sympathetic to its rigour and arguments, but that also advances the author’s own arguments and analysis. This study was assisted by a sabbatical leave from the University of London, Birkbeck College, School of Law, in 2007. In the course of researching for this study a number of libraries and their staff offered me considerable assistance, two of which I would like to thank in particular: the Warburg Institute Library in London and the Bodleian library at the University of Oxford. A number of colleagues, students, relatives and friends have assisted my study by offering comments, criticisms, editorial suggestions and support; to them I express sincere thanks. Valerie Kelley read large parts of the manuscript and suggested editorial changes that were of great assistance. Costas Douzinas pointed my attention to Agamben’s work in the first place. The two friendly and imaginative editors of this series, Peter Goodrich and David Seymour, offered genuine encouragement and criticism. Peter Goodrich and Amanda Emerson provided numerous editorial suggestions for which I am indebted. Alex Murray, Elena Loizidou, Jose Bellido, Piyel Haldar, Nathan Moore and Raphaëlle Burns read parts of this book and provided support and insights. Kostas Axelos, Giorgio Agamben and Anton Schütz have offered me pathways to thinking and its limit, and this study forms a modest expression of gratitude to them in particular.

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

2

Giorgio Agamben: Power, law and the uses of criticism

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

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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.

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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

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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 metanormative foundations of law with some moral or hyper-political substance. Agamben’s approach is philosophical in its technicality and registration of interest and as such it is to be studied as a philosophical genealogy of power and of law, rather than as a legal theory in its own right. Another fusion that is to be safeguarded against is, then, that of philosophy and legal theory, a fusion that so-called postmodern legal theories often fail to observe. In Agamben’s recent work entitled The Kingdom and the Glory: A Theological Genealogy of Economy and Government (Il Regno e la Gloria: Per una genealogia teologica dell’economia e del governo), it is suggested that two political paradigms have been inherited by Christianity (through the elaboration of the Trinitarian doctrine). While a detailed engagement with this work will have to await the analysis of the next chapter, it is crucial at this point to suggest what the problem is in Agamben’s view. The two paradigms bequeathed by Christianity are: 1. Political theology (which provides for the theory of sovereignty and the foundations of law); and 2. Divine economy or oikonomia (which provides the model for the governance and economic administration of human beings and things). Agamben’s position for the coexistence of two paradigms is not simply a matter of suggesting that key political concepts are merely theological concepts or that key theological concepts are really theologized political concepts. Both statements instead indicate something more crucial, namely a functional solidarity between juridical, political and theological concepts. But to speak of the ‘secularization’ of theological concepts or the ‘theologization’ of political concepts does not extend very far the understanding of the specific manner of such solidarity (that is, their problematic historical and theoretical relation). It is equally insufficient to suggest, therefore, that key legal concepts are merely theological concepts or politicized theological concepts. It is crucial instead to show the manner of the solidarity between politics and theology in the very plane of law. A particular tradition of analysis that thinks of so-called ‘political theology’ of law with its emphasis on the obsessive search for an essence of law, for a foundation of law (irrespective of whether this foundation is conceived as theological, natural, political or legal), is problematic if each time the emphasis is placed on the foundation as a transcendent righteousness or absolute law, without paying attention to the other side of this foundational structure: the presupposition of an immanent governance, administration or law that the foundation claims to entail as its secondary effect.

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In this work a central argument will point to the need not only to understand the way in which this tradition of thought (in law and more generally) has been transmitted to the contemporary, but also to appreciate the need to exit its logic. In this sense, the term ‘political theology’ is understood as a problematic amalgam that has claimed in general terms to advance the principles, foundations and justifications for a particular understanding of legal and political institutions and of the form and life of their subjects. The paradigmatic schema that political theology serves generally to transmit and safeguard is that of a law that is by definition fractured between a transcendent Law (capitalized in this work to signify henceforth a superior principle or foundation) and an immanent or ordinary law (that acts out the application or execution of the law as its secondary cause.) This schema of a bipolar conception of law, as in the form of a ‘Law of law’ or a ‘Power of power’, becomes each time an attempt to presuppose a mysterious centre of power that ought to remain ungraspable, universal, transcendent and ineffable (this is so in both the historical tradition of absolutist power and of democratic polities, but also in approaches to/against the law from the so-called left in the name of justice, human rights, morality, ideology and so forth). The problem of foundational mythologemes of power and law is then the negative definition of law through a separation between a transcendental and an immanent order or an unparticipated realm and a realm of participation. The traditional approach of political theology as a way of explaining the nature of the foundational mythologemes of law and power focuses on the analysis of the absoluteness, perpetuity and sovereignty of law and power from which all secondary laws, powers and causes have only to proliferate. Instead, it shall be argued in this chapter and in the next that it is the second paradigm (oikonomia) inherited by the Western governmental machine that posits or produces the absolute foundation of power and of law as its presupposition and it is through understanding its structure that the keys to the exit from its logic are provided. Instead of focusing on the sovereign transcendence-suffused image of the foundation of power and law (as political theology, as well as legal theories, suggest), the analysis of the economic paradigm of governance or administration places emphasis on the functional relation between a supposed transcendental righteousness or sovereignty and immanent governance or ‘secondary’ administrative powers. It is Agamben’s achievement to have managed to show in his recent work that the interrogation of this functional relation reveals that at its heart lies not a politico-theological rationale, but a governmental one. The paradox that political theology cannot explain lies in the following question: If sovereign power is absolute (that is, it needs nothing other than its being sovereign), why does it require secondary causes, intermediaries and administrators (the Church, the institutions of the State, lawyers, judges and so forth)? Why does the foundation require (but does not need, if it is to be properly absolute) its managerial glorification through

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secondary causes and powers? The only appropriate answer is that there is no substance, essence or absolute sacred body in the so-called plane of the foundation. In other words, this is tantamount to saying that the sovereign throne has always been conceived as an empty throne and doctrinal and administrative apparatuses attempt to do nothing else than to silence this fact. The so-called secondary causes or powers are only the theologico-political and juridical clothing that is shifted between earthly, secondary, powers through a functional relation that aims to conceal the emptiness of the foundation. To appreciate the presuppositional significance of such an empty foundational power however is not an easy theoretical or indeed historical task. It is only through an analysis of the economic structure of the functional relation that is purported each time, through foundational mythologemes, between a transcendent Law or Power and an immanent law or power (government, execution or administration) that the dogmatic problem of the concealed empty throne can be appreciated as such. No such type of transcendent Law (of law) can be maintained for the understanding of law and thought that is advanced in this work. Even more crucially, Agamben, who forms the main inspiration for the analysis of this work, could not be any more distant from such a spectacular schema of understanding. It is useful, however, in my view, to begin this work with an analysis of certain characteristic elements of this dogmatic theologico-political and juridical tradition (that separates a transcendental righteousness or Law from an ordinary or secondary law), within the history of theological discourse that influenced the common law tradition (but with wider implications for the Western legal tradition as a whole), in order to appreciate the nature and the predominance of the problem, as well as in order to re-emphasize the need to view this mode of understanding as a dogmatic problem and to exit its logic. That the narrative or analytical revisiting of such a dogmatic tradition is itself an ironic manner of continuing its transmission is a risk that this chapter has chosen to undertake and yet traverse through exposing its historical and theoretical form with emphasis on its oikonomic logic.

The alleged sacramental foundation of (common) law It is useful, at this point, to begin with an example of a theoretical investigation of the foundation of common law in direct reference to theological discourse. In Peter Goodrich’s Languages of Law: From Logics of Memory to Nomadic Masks 2 the English common law tradition and polity is interrogated for its basis in elements that were borrowed directly from theology and ecclesiology. A characteristic element under investigation in Goodrich’s

2 1990.

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book, for instance, is the sacramental and foundational significance of the extraordinary supper that is known as the Eucharist. Goodrich writes: The Eucharist, the repetition of the Last Supper at every Mass in every church, is the exemplary sign of Christian faith; it is the sacrament, the appearance of grace, the continuing presence of Christ. It is also the original ritual of authority, the source of power of the Church, in that it is for Catholicism only through the consecration of the bread and wine that they can become substance: that is, the flesh and blood of the Lord. The significance of the Eucharist to the Church needs little reiteration. It was over the Eucharist that the Church went to war with itself in the Reformation and the Counter-Reformation, a dispute triggered by divergences of interpretation of the nature of Christ’s presence in the bread and wine of the sacrament [. . .].3 At the very heart of Christianity lies the rite of the Eucharist or Communion (from the Latin communio, ‘sharing in common’).4 In general, though crucially theological interpretations of the rite vary, the Roman Catholic, Anglican and Orthodox traditions see the Eucharist as the fulfilment of God’s plan for the salvation of humanity from sin (the so-called ‘Divine Economy’ or Transcendental economy) on the basis of a presupposed distinction between a corpus mysticum and a corpus verum, a mystical and a real body. The corpus mysticum and the corpus verum in this manner can be conceived as separable/ related through the operation of the economic (administrative) nature of the liturgical rite of the Eucharist. The term corpus mysticum, the medieval historian Ernst Kantorowicz writes, first came into prominence during Carolingian times and gained discursive importance in the controversy over the conception of the body of Christ in the Eucharistic sacrament. Kantorowicz writes: On one occasion, Ratramnus pointed out that the body in which Christ had suffered, was his ‘proper and true body’ (proprium et verum corpus) whereas the Eucharist was his corpus mysticum. Perhaps Ratramnus relied on the authority of Hrabanus Maurus, who had stated, shortly before, that within the Church the corpus mysticum – meaning the Eucharist – was administered by the priestly office.5 The term corpus mysticum referred, initially, to the body of the consecrated host in the Eucharist, rather than the body of the Church (which was known as corpus Christi). When the Church, in the middle of the twelfth century, in 3 1990: 54. 4 See Matthew 26:26–27; Mark, 14:22–23 and Luke, 22:17–19 and the Pauline account in 1 Corinthians 11:24–25. 5 1957: 195.

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the controversy with Berengar, began to emphasize that the presence of the body of Christ in the Eucharist was neither mystical nor spiritual, but the real presence of both the divine and human natures of Christ, the consecrated host was called corpus verum or naturale or corpus Christi. The title of the mystical body (corpus Christi mysticum) was reserved for the Church (after 1150) as the institutional and ecclesiological body that unites in the sacrament of the altar, while gradually losing its sacramental associations in order to acquire political and juridical meanings, so that, by the early-fourteenth century the corpus mysticum and the corpus morale et politicum become interrelated and interchangeable conceptions.6 The term mysticum, which now designated the Church, signposted the administrative body and juridical, technical and economic apparatus (Corpus Christi Juridicum) of the Church, as a response to the Investiture struggle and in an attempt to de-emphasize the Church as a political body. In this way the Church, as a visible organism, was placed beside the secular bodies politic, which had begun to claim their own sufficiency. In this sense, Kantorowicz writes: The new ecclesiological designation of corpus mysticum fell in with the more general aspirations of that age: to hallow the secular polities as well as their administrative institutions. When in the twelfth century the Church, including the clerical bureaucracy, established itself as the ‘mystical body of Christ’, the secular world sector proclaimed itself as the ‘holy Empire’.7 Kantorowicz is careful not to suggest an easy causation between the two realms, but simply to state their historical development around the same period in time. What becomes of central concern at this time, however, is the fact that it was during this period that the theologians and canonists began to utilize the distinction between what they called ‘The Lord’s two bodies’: ‘one, the individual corpus verum on the altar, the host; and the other, the collective corpus mysticum, the Church’.8 On the one hand, the divine (material) body of Christ and on the other the collective (spiritual) body of the Church, an individual and a collective body. As an individual body Christ is himself per se, while as another (the body of which is the sacrament) it is the head of the Church, the collegium ecclesiasticum or spirituale collegium. On the one hand, then, the body of Christ as a natural prototype and, on the other, its figuration as supra-individual: a natural body and a mystical body. For the Church to institute its community, its public body, it must maintain the functional relation with a real transcendental righteous body through the

6 Ibid: 211–12. 7 Ibid: 197. 8 Ibid: 198.

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economy of a transcendental body and an ordinary body that aims to keep the movement between them continuous. The mystical body of the Church was crucially compared in its conception with the individual physical body of Christ, a natural body that became associated with the corporational function of the Church, rather than its sacramental meaning (which, however, remained implied in the very terms that were used).9 The Church eventually becomes not the mystical body of Christ, but a mystical body in its own right, acquiring a juristic form as a mystical corporation. The juridical sense of the term came to coincide with the mystical and as such to ‘secularize’ the notion of corpus mysticum (while presupposing in it a doctrine of the divine power’s representation). The juristic abstraction of the Church was further intensified when the corpus mysticum of the Church came to be called a persona mystica, leaving its formal sacramental significance behind.10 Kantorowicz writes: ‘It [the corpus Christi] has been exchanged for a juristic abstraction, the “mystical person”, a notion reminiscent of, indeed synonymous with, the “fictitious person”, the persona repraesentata or ficta, which the jurists had introduced into legal thought . . .’.11 A persona ficta that becomes neither corporeal, nor mortal and is identified with God, a persona mystica that becomes less and less mystical, through time, and comes to signify the Church as a political body (and by transference any political body). What is mystical (a mystery) is the economic production of a relation between a transcendent righteousness and an administrative body. The economy of the Eucharist does not administer a mystery, but instead the administration itself is the mystery in question. The Eucharist could be read to reproduce and celebrate, in this way, the dogmatic bipolarity between the alleged extraordinary divine presence in its transcendence and the ordinary earthly presence in its immanence. However, things are more complicated. The theological dogma relating to the Eucharist, whose detail cannot be expounded on here, not only attempted to safeguard the divine origin of its liturgical doctrine of presence, but also to produce a particular formation-technique of subjectivity in order to promote obligation and allegiance. It is with this in mind that we can turn now to the Anglican interpretation to which Goodrich refers, in particular, in his discussion of the Eucharistic interpretations with regard to the development of the foundation of English common law.12 The essential function of (divine) 9 10 11 12

Ibid: 201. Aquinas, 1964: III.q.XLVIII, a.2. 1957: 202 It is perhaps no accident that Goodrich’s seminal work of legal history initiates its study of the common law tradition with a consideration of the notion of presence at the crossroads of religion, politics and law. It can be noted at this point that one of the central characteristics of twentieth-century philosophy, most prominent in the work of Martin Heidegger and Jacques Derrida, was the interrogation of the birth of fundamental concepts of philosophy through the limit-concept of presence. Derrida, exploring the philosophical foundationalism

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language in the Anglican interpretation cannot be underestimated as it serves as a preliminary exposition of the essential relation between language and the sacraments. According to Martin Luther’s interpretation of the Eucharist, a proper mass is not sacrifice but the proclamation of Christ’s testament by means of the Words of Institution.13 Though the bread and wine are tokens of the divine Word, it is the Word itself and the power of the Holy Spirit which produce the real presence of Christ in the sacrament. The Word is a word of power that creates, through its utterance, ‘presence’, but it receives its power from the presence of Christ as such. According to this view it is not the word of the administrator priest that makes the presence possible, but the Word of promise itself (Christ’s word) that performs the miraculous change, as if immediately. The causa causans of the sacramental transformation is the divine essence of the Word. In the Anglican tradition, according to Goodrich, the law, in a wider sense, is derived from God whose power is the causa causans of law as the ‘arbiter of truth, of meaning and of judgment’: The conceptual apparatus of the Church, the theology of presence in the Eucharist, becomes in law the question of the ‘spirit of law’, of the ‘living voice of law’, of the presence of law as it is disinterred or resurrected through tradition as well as through the legal text, through equity, through the ecclesia of the court, through the wisdom of the judges, the sages or holy men (sacerdotes) of the common law.14 Why does the law require its glorification, the glorification of its ‘spirit’, through intermediary sacerdotes? Would not such mediation destroy the absoluteness of its sovereign nature? The sacrifice in the Eucharist ritual is an account of the establishment of community and order and of the authority of law that is made to be present ‘as such’ forming the positive theology of law, whose presupposition is the return or representation of an absence made present (a negative theology). Its riddle, and every tradition of sacrifice contains its own riddle or aporia, lies with the notion of presence (where the word of God acts as a primary sacrum signum, a signature; on which more will need to be said later in Chapter 3) that it implies and uses as its presupposed operari and its administration by the sacerdotes. Goodrich writes: The Eucharistic presence is in a literal sense a simulation. In a spiritual

of the West, writes: ‘It could be shown that all the names related to fundamentals, to principles, or to the centre have always designated an invariable presence – eidos, arche¯ , telos, energeia, ousia (essence, existence, substance, subject) aletheia, trancendentality, consciousness, God, man, and so forth.’; Derrida, 1978: 280. 13 See Luther: 1955–76: vols 35 and 36. 14 1990: 55.

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sense, however, the presence that is represented is more real than real; it is the presence of the Spirit, of grace, of the sacred; it is the presence in the strong sense of prae-sens, that is, of something both before and in advance of an object, an anticipation and an imminence that negates, suspends, both time and space by virtue of the power of the event, of a sacrament that is a reality complete unto itself, that has an independent existence . . . we must recall that the sacramental is altogether sui generis.15 With regard to the narrative of the Eucharist, a liturgical/doxological sacrifice (that separates the divine body in itself from the consecrated body) is thought to produce a communal body in order to render it governable. An act of exceptional negation (the taking outside of the divine body), this tradition holds, founds the social body. This act of sacramental sacrifice acts so as to paradoxically maintain the sacred presence of the divine in the communal order and to reproduce its sacramental objects and subjects. Goodrich writes: Sacrifice is the exemplary religious act: through destruction, through death or through some other symbolization of disappearance, of the chance and irrationality of the imaginary, it draws its participants, its witnesses, away from the material world, the world of utility and of things, towards an invisible realm, one of foundations, of sovereignty, of the divine, a realm of myth.16 The economy of the sacrifice aims to maintain a bond between the divine origin of Christ and the human community and order it founds through him (through the hypostasis of the divine power in his body). It attempts to assure the divine presence in the foundation and administration of institutions through a scission between a dogmatic transcendental presence (through the apparatus of a divine signature) over and before the secular institutional presence of juridico-political bodies in order by transference to safeguard and glorify its omnipresent sovereignty. In law, this becomes the question of the relation between the law beingthere in adjudication, legislation, the constitution and so forth, and the spirit of the law or the Law of law (its causa causans). Whether the name of the ‘Law of law’ refers to justice, legality or the ancient custom of time immemorial, what is at stake is first the attempt to transmit a mythical signature: a bipartite juridical body (torn between a transcendental aspect or respectus and an immanent one); and at the same time to posit a limit between the two aspects (which implies a relation, a knot between the

15 Ibid: 57. 16 Ibid: 58.

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two that exceeds every relation). It is within this limit or, better as it will be argued later in this work, zone of undecidability or indistinction that foundations are raised and subjects are formed (and deformed; desubjectivized). The repetition of the sacramental rite is as such the repetition of an exceptional division that paradoxically safeguards the continuous movement between the divine image of sovereignty and the earthly administration of the institutions. Whether this foundational economic ritual is perceived in an apologetic, justificatory or critical manner is not as important as is the investigation, here, of the production of an economic foundational relation and of the unbinding of this fundamental knot. Law, in this sense, is thought through a supposed relation between a Law and a law, an original transcendent foundation and an immanent institutional order (through the economic relation between a founding power and a founded power or constitutive and constituted power). To state this in a preliminary manner, the obsession with the essence or ground of law is not only the wrong question with regard to law, but it also reproduces a dogmatic understanding of what takes place in law, as well as a scapegoat as to how legal subjects are (de)formed. This dialectical formation captures the legal imagination and imprisons it in the pseudodialectic between an essence and an existence, a law-founding violence and a law-preserving violence, to use Walter Benjamin’s terms.17 In this work, what is at stake is to think of law without precisely such a relation, and to consider the transmission of tradition as a problem, rather than as a theological, political and legal dogma. A mythologeme or fiction of (bipartite) presence is what is at stake in the sacrificial foundation of religion, law and politics. Both ‘presences’ are co-present and bound by a mysterious economic relation that forbids nothing less than its unbinding. In this way law, to rush to a formula, is founded from an ‘outside’ that it has itself co-instituted and defined negatively or transcendentally; and to which it must relate at the very same time that it maintains for its own absolute agenealogical origination. Without such negative definition there would be no need for a representation (that is, a dogma of bipartite presence) and hence for the glorification of a foundation or origin. There would also be no need for the formation of subjects through a scission between a sacred being (or in Agamben’s terms, bare life, as is explored in Chapter 4) and a qualified, ordinary, being. Law (divine, natural, common law from time immemorial and so forth) is literally, in this dogmatic presentation, a false para-doxon, always standing immemorially beside (para) its opinions (doxai ) and legislations, always preexisting (immemoriam) and yet contemporaneous, untimely in memoriam. Two ‘bodies’, evident in political, religious and legal discourses, two pseudopolarities (as they originate through a common form and logic) forming a

17 See Benjamin, 1996a.

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relation of origination or foundation that never ceases to transmit its dogma of a divine or transcendental signature or ‘Law of law’. In this work the question is to consider what it would mean to think of law and of politics (but also of being and thinking) without resort to a foundational mythologeme of this kind. That is, without resort to a negative metaphysical or politicotheological essence or origin. The implication is that the secret kernel of legal foundationalism is that of an economy that produces as it presupposes a separated (para) plane of transcendental righteousness from the doxa of ordinary laws, so that it can seem that all that ordinary laws can do is to doxologize/glorify absent transcendental power from the earthly domain in order to administer its supposed representation in earthly immanence. The ordinary formation of the dogmatic paradoxes of laws will be seen to be, first, acclamations pointing to the incessant glorification of an empty throne and to the administration of its image-suffused sovereign will. Excursus: A mythologeme, which in English law has an exemplary textual dimension is the polarity of an unwritten and invisible law and a visible written one. Such a mythologeme of presence and representation is an endlessly repeated memory of law’s sacred transmission of tradition. The ritual of the Eucharist is an institutionalized repetition that recollects and proclaims a living memory of the invisible and ineffable sacrality of authority (its signature). Repetition itself, the core of every sacrificial mythologeme, serves to protect from the threat of discontinuity and, between the transmitted myth and the right of the interpreter to find its representation, each time ‘as such’ (as a thing in itself ) in the present. The legal significance of such repetition is traditionally predicated upon the essence of law, its original transmission, its truth, its lawfulness as such. The presupposed essence (Law) of law is produced through the transmission and replenishment of its glory in the coercive literality of legal discourse and in the immanent recollection of its truth. In the textuality of the transmission of the ‘ancient constitution’ it is the acclamations, doxology or glorification of the supposed foundational message that produces the fiction of a transcendental righteousness or truth. This chapter’s investigation has begun through reference to the example of the dogma of Eucharistic presence in order to arrive at a wider theme, that of the mythological bipartite nature of power and of law (absolute, ordinary; transcendent, immanent) and their functional-economic-interrelation. Goodrich’s study presents this mythologeme as at the core of the development of a common law jurisdiction in the well-known jurisprudential writings of Sir Thomas More and Sir Edward Coke. The debate between More and Coke centred around the defence of faith and the defence of law, respectively. For More the ‘immemorial tradition’ in question derived from ‘the holy scripture of God’ and for Coke it referred to a law based upon ‘ancient usages warranted by holy scripture’.18 The aim in this brief engagement is to trace the 18 Goodrich, 1990: 64.

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figuration of the problem of the sacrificial mythologeme as an economic problem in the polemical tradition of English legal writing in order to show eventually a wider problem (in the next chapter), that of the ancient and modern mythologemes of ‘theologico-political’ foundations’ origin in the paradigm of Christian economy (oikonomia). The textuality, the emblems, insignia, liturgical and ceremonial elements of the law, that Goodrich emphasizes, acquire further significance for the purposes of this analysis. It is precisely through ‘fundamental writing’ and through ceremonial performances and acclamations of authority that the sacrificial origin of the law (and of religion and politics), its negative origination, derives its force and its rightness. Such sacramental performativity is the secret kernel of the dogmatic tradition of law. That is, by always structuring and pseudo-counter posing ‘before and after’ polarities through a single foundational performative act: God, Church; nature, culture; God, King; Church, King; King, Parliament; People, King-in-Parliament; absolute power, ordinary power; immemorial, memory; silence, language and so forth. And always, it seems, concealing a ‘more original’ power that allegedly founds, hidden in a glorious transcendent or semi-transcendent domain, the absolutely powerful empty or floating signifier, from which the spirit of power and the force of law are held to emanate. Goodrich suggests that the development of a doctrinal defence of law adopted the same methodical defence and apologetics that the Church employed against Protestantism, for the democratization of the Church and the common vernacular translation of the Bible. More writes: ‘for our matter is not scripture, as it is taken for bare writing, such as every scrivener’s boy writes in his master’s shop, but as it signifies such holy writings God causes to be written and binds folk to believe, upon the peril of their soul.’19 The most important thing of all, for More, was to maintain the unity of Christendom. The Lutheran Reformation, with all of the prospects of fragmentation and discord, was to his mind a dreadful thing. The divine, thus, in More’s conviction, precedes the common and the Church precedes the word and acts following its long-standing sacred role as custodian of a hidden reserve of divine truths. The counter-argument was presented frequently and in various forms by Saint German, among others, as in the following extract: ‘as long as the spiritual rulers will pretend, that their authority is so high, and so immediately derived from God, that the people are bound to obey them, without argument or resistance, then so long the light of grace will not appear’.20 There is an implied messianism in this formulation of the light of grace in that it requires the rendering ineffective of a transcendental righteousness, which can only be noted here and which will be examined in more detail in light of the wider analysis of Chapter 6.

19 Ibid: 75; see More, 1973: col.8 at 272. 20 Goodrich, 1990: 83; see also St German, 1533.

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The newly founded Anglicanism required a doctrinal myth that would live on until the present and a nationalized presence that would yet remain immemorial and sublime. This tension or relation between spirituality and the finite form of laws composes, through a mythological bond, the understanding of common law as a tradition that aims to guarantee, above all, the transmission of so-called transcendental truth. The laws, as John Fortescue described them, are ‘solemn, magnificent, exceeding valuable, excellent, sublime, and superior to the civil law in that [they] accord more closely to the scriptures and the writings of the Church fathers’.21 It would be a mistake to think that the Anglican influence (with its compromises with Lutheranism and Calvinism) would soon drive away reliance on the dogma of the divine origin of the law. For Saint German, positive law is based upon eternal law, the law of reason and the law of God.22 Fortescue, as Goodrich reminds us, asserts ‘the filial fear of God as the necessity underlying the study of law’: ‘Human laws are sacred and their science or profession is the art of what is good and equal, while those who administer the law, “who sit and preside in the courts of justice, are therefore, not improperly, called sacerdotes (being one who gives or teaches Holy things)”.’23 This was an attempt at certainty and continuity that employed both its divine foundation and a monolingual determination despite philological and historical evidence to the contrary, for political, theological and juridical ends. The law, Goodrich comments, is first a law of memory and of language or, better, it is monument and tongue bound together by a historical fiction that takes the form of a legal fiction (a mythologeme). But this bond is first produced by the economic glorification of the foundation (its production through an economy between a transcendental monumental presence and its representation in the supposed immanence of language). As such, the law is first a foundational amnesia of its history and genealogy and the proliferation of a mnemonic mythologeme that therapeutically and continually represents its debt before an absent foundation. In the sixteenth and seventeenth centuries the relationship between God and political authority was the enduring issue of political thinking that shaped the foundational dogmatics of English common law. Thus, in the emergence of English jurisprudential dogmatics, Goodrich traces: A conceptual descent from More through Richard Hooker to Coke and Davies in which the Eucharistic apparatus of presence – of authority, of law – moves from theology to jurisprudence, from the Church to the State, from the Sacrifice of Christ to the sacrifice of nature and of desire that founds the social contract. In the place of the last supper and its 21 Goodrich, 1990: 86. 22 German, 1974: 27, 107–13 and 129–33. 23 As quoted in Goodrich, 1990: 86.

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exemplary repetition at Emmaus there is the originary contract, no less of a sacrifice, no less of a constitutional act, one which makes the people present as living members, as membrane of the social body: ‘the parliament of England is that whereupon the very essence of all government within this kingdom doth depend; it is even the body of the whole realm: it consisteth of the king, and of all that within the land are subject to him: for they are all there present, either in person or by such as they voluntarily have derived their very personal right unto.’24 To create the public mystical body of the faithful and of obedient subjects the economic ritual of the Eucharist produces and presupposes the mystery of a negative relation to a transcendental righteousness.

On the dogma of The King’s Two Bodies It seems fitting to suggest that Goodrich’s analysis of the Eucharistic sacrament in relation to the foundation of common law can be, briefly, reread through the investigation of kingship by Kantorowicz in his famous treatise The King’s Two Bodies: A study in Mediaeval Political Theology.25 Kantorowicz’s analysis can be followed up to a certain point in order to show a wider problem with the pseudo-bipolarities in question, as well as with their partial celebration in his theory of political-theology. William Blackstone, in the Commentaries on the Laws of England, in his discussion of the royal prerogative power describes the political body of the King as of a transcendent nature, a royal persona ficta, an abstract physiological fiction who is incapable of doing or thinking wrong (or being negligent), who is invisible, absolutely perfect, the fountain of justice, immortal and perpetual, and who forms the corporational type of a single individual, the King, within (and as superior to) his natural body.26 The King, in this manner, has a bipartite body (natural and political or mystical) and yet both have legal ubiquity. Kantorowicz begins his inquiry in his The King’s Two Bodies with an analysis of the bipartite body of the King as referred to by a number of judgments in cases compiled in Edmund Plowden’s Reports and it is to those that this work turns, at this point, for some preliminary elucidation of the concept in question. One of the most famous cases during the reign of Queen Elizabeth I is the case that became known as Calvin’s case where the crown lawyers agreed that: By the Common Law no Act which the King does as King, shall be defeated by his Nonage. For the King has in him two Bodies, viz., a Body 24 Goodrich, 1990: 64; see Hooker, 1969: 408–9. 25 Princeton, 1957. What follows in this section is a critical summary of Kantorowicz’s key points. 26 Blackstone, 1765–1769: I, c.7, at 237, 246 and 270.

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natural, and a Body politic. His Body natural (if it be considered in itself ) is a Body mortal, subject to all Infirmities that come by Nature or Accident, to the Imbecility of Infancy or old Age, and to the like Defects that happen to the natural Bodies of other People. But his Body politic is a Body that cannot be seen or handled, consisting of Policy and Government, and constituted for the Direction of the People, and the Management of the public weal, and this Body is utterly void of Infancy, and old Age, and other natural Defects and Imbecilities, which the Body natural is subject to, and for this Cause, what the King does in his Body politic, cannot be invalidated or frustrated by any Disability in his natural Body.27 It is significant to note that the body politic of the King that knows of no infancy and is invisible, untouchable, transcendent and immortal has at the same time the purpose of policy, management and government. A crucial question arises then as to why, for the purposes of government and management of this world, is a reference to a transcendental righteousness “out of this world” rendered necessary? If the transcendent body of the King is invisible and has no infancy, it is the image of a do-nothing King (who rests in the fullness of his power that needs nothing). The mixture of this transcendent body with the mysterious function of government and administration, though, betrays an aporia at its very heart in that a fullness of power that does not need anything requires at the same time its enactment of its power through its sacerdotes. Preliminary answers could be the reasons of perpetuity, stability and order, hierarchy and absolutism. It is to be noted though that the juristic fiction of the body politic of the King is linked with an economic theological exegesis and that this becomes characteristic in the medieval reference to the King’s character angelicus, his likeness, that is, with the Holy Spirit and with angels.28 The King is seen as angelic and angels were, above all, ministers (administrators) of God’s power, which by transference, as is examined below, in a number of different forms extends to the King through a functional relation between his transcendent body and his governmental body as a minister of God in the earthly kingdom. The transcendental body of the King appears in the imago Dei as a transcendental righteousness wherein the King acts vicariously out of divine power. The governmental body of the King, intertwined with his transcendental body, acts out the will of God vicariously through the administrative power of angels. The King in his natural capacity, as an individual, is not generally responsible for things that pertain to his body politic and it could be said that his political responsibility is conceived as vicarious to

27 Plowden, 1816: 212a. 28 Kantorowicz, 1957: 8.

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God’s sovereignty. But a do-nothing God or King has, by definition, no responsibility. Thus, the mystical body politic of the King, his officium, his royal estate, his ‘Dignity and Majesty’ lie within the natural body of the King, but are ever presupposed as superior to it. In Calvin’s case this was described in the following manner: although he [the king] has, or takes, the land in his natural Body, yet to this natural Body is conjoined his Body politic, which contains his royal Estate and Dignity; and the Body politic includes the Body natural, but the Body natural is the lesser, and with this the Body politic is consolidated. So that he has a Body natural, adorned and invested with the Estate and Dignity royal; and he has not a Body natural distinct and divided by itself from the Office and Dignity royal, but a Body natural [and] a Body politic together indivisible; and these two Bodies are incorporated in one Person, and make one Body and not divers, that is the Body corporate in the Body natural, et e contra, the Body natural in the Body corporate.29 When the natural body dies, the body politic is transferred to another natural body like the migration of a soul that incarnates and continues the chain of immortality and perfection. The question of whether the King’s subjects gave their oaths of allegiance to the King’s natural body or his body politic became of great importance, for instance, during the 1688 revolution in England; after James II fled, William and Mary ‘inherited’ the throne through the ‘glorious act’ of Parliament. When after 1688 Parliament declared its glorious supremacy, the body politic remained with the King as ‘frozen’ (as impotent) and the exercise of his body politic powers were transferred, to an extent, to the Parliament and the courts as the ministers of the mystical body of the King.30 According to Kantorowicz’s analysis the legal fiction of the King’s two bodies was an undeniable feature of English political thought in the age of Elizabeth I and the early Stuarts, but crucially it was not confined to the developments that took place in the sixteenth and seventeenth centuries. There were antecedents and highly significant ones. As Kantorowicz shows, the discovery of an anonymous publication, known as the Norman Anonymous, from five centuries prior to the reign of Elizabeth I discusses, among other things, the problem of presence in the figure of persona mixta or the mixed person. Kantorowicz writes: We need only think of the ‘mixture’ of monk and knight postulated in the orders of spiritual chivalry to grasp the pattern of ideals by which

29 Ibid: 9; see Oakley, 1998. 30 Ibid: 14–15, 21–3.

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that time might have been moved; and when an abbot of Cluny was said to be angelicus videlicet et humanus, it was more than just a metaphor chosen by chance, because we have to remember that the monk claimed to exemplify, while still in this world and in the flesh, the vita angelica of the celestial beings.31 Even after the papal revolution, as is explained below, the King, for instance, was not ‘purely laical’ after his spiritual powers were deposed and delivered to the Church’s hands. When the Norman Anonymous wrote his tractates around 1100 the King remained a person endowed with spiritual qualities and with a ministerial, angelic vocation. Kantorowicz writes: The kings whom the Anonymous refers to are the christi, the anointed kings of the Old Testament, who have been foreshadowing the advent of the true royal Christus, the Anointed of Eternity. After the advent of Christ in the flesh, and after his ascension and exaltation as King of Glory, the terrestrial kingship underwent, very consistently, a change and received its proper function within the economy of salvation. The Kings of the New Covenant no longer would appear as the ‘foreshadowers’ of Christ, but rather as the ‘shadows’, the imitators of Christ. The Christian ruler became the christomimetes – literally the ‘actor’ or ‘impersonator’ of Christ – who on the terrestrial stage presented the living image of the two natured God, even with regard to the two unconfused natures. The divine prototype and his visible vicar were taken to display great similarity, as they were supposed to reflect each other; and there was, according to the Anonymous, perhaps only a single – though essential – difference between the Anointed in Eternity and his terrestrial antitype, the anointed in Time: Christ was King and Christus by his very nature, whereas his deputy on earth was king and christus by grace only.32 The apotheosis of the terrestrial King, his consecratio, materialized in the obtaining of a dual body by the King, one by nature and one by grace. Yet what is crucial is that in terms of power the difference between the anointed in eternity and the anointed in time dissipated, but only to the extent of its internalization in the glorifying governmental body of the King and its continuing functional relation to a transcendental righteousness through grace. As Kantorowicz writes, ‘the king appears as the perfect christomimetes also with regard to power, since his power is the same as that of Christ’.33 The pseudo-bipolar being of the King entailed a bi-unitary nature in officio, paralleling at every count the dogma over the bipolar being of Christ. It is the

31 Ibid: 43. 32 Ibid: 46–7. 33 1957: 48.

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act of apotheosis, hallowing, anointment and glorifying consecration that makes the terrestrial King the host of a bipolarity (as a being with two natures, like in Christ). The one below the King in rank, the bishop, the Priest-Christ, imitates this bipolarity equally as ‘man’ and as officio. The distinction between homo and officio with regard to both King and bishop was not unknown prior to the Anonymous’ account. Augustine uses a similar distinction to speak of the King as a ‘man’ and the king as a King, serving God.34 Instead, what is new, Kantorowicz suggests, is the use of theological discourse to found the bipolarity of the king-bishop as impersonator of Christ: split-and-united between one natural polarity and one consecrated and liturgical. The Church in the year 1000 was not conceived as a visible, corporate, legal structure forming a counter-polarity to political authority. The Church was, instead, the Christian people, populus christianus, which was subordinate to both secular and religious orders (regnum and sacerdotium). In about 1050 a reform party formed around the Papacy in Rome which organized the clergy in order to oppose the Emperors, kings and lords and to fight for Church freedom (restoring the presupposed ancient freedoms). Until that time the Emperor was the head of the Church and the Pope himself was appointed by the Emperor and swore an oath of fidelity to the Empire. The minister of Christ at the time was the Emperor (Vicar of Christ) while the Pope was called the Vicar of St Peter. For Kantorowicz the question as to who was the immediate mediator of Christ was of no mere symbolic function. In 1075 Pope Gregory VII declared the absolute legal and political supremacy of the Pope over all clergy and secular rulers. A layman, the Emperor (who before 1075 had undisputed religious functions), could no longer be the head of the Church. Further, the Pope asserted his supremacy over secular matters, including the exceptional authority to depose emperors and kings. This struggle had political, economic and theological dimensions, but only an outline of the relevant developments at stake is possible in a piecemeal fashion at this point. The Papacy, by unilaterally changing the Nicene Creed, forced a schism with the Eastern Church and what followed were the first crusade and civil wars all over Europe between supporters of the Pope and supporters of imperial forces. In England this turmoil was only settled through the martyrdom of Thomas Beckett in 1170. From the clash between the swords of the Church and those of the Emperor a number of consequences followed, one of which was the development by the Papacy of a system of law based on canon law (jus canonicum).35 Roman law had been degraded in importance by the eleventh century, yet both the Pope and the Emperor were energized in the late eleventh century by the discovery of the texts of Justinian, and attempted to find support in them 34 See ibid: 57. 35 See generally Legendre, 2006.

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for their own interests. Gratian, a monk, in 1140 analysed the canon law of the early history of the Church and synthesized it as a body of canon law (corpus juris canonici). Gratian’s pronouncement is famous for being a declaration of the supremacy of canon law over ‘secular’ laws. Divine law and natural law must take precedence in cases of conflict with the laws of human rulers and the customs of the people. The canonist legal jurisdiction, according to Kantorowicz, could not be formed unless it formed a contrasting polarity to the secular or human laws of the time and hence acted as a catalyst for the counter-systematization of secular laws. The problem of two present laws, canon and human, required a resolution of the question of how to maintain two separate and concurrent jurisdictions of legal rules. The unified body of canon law was confronted by the plurality of secular jurisdictions, each eventually with its own legal system. The significant turn for the purposes of this work lies in the trivium and the pseudo-progressive movement between liturgy and Christ-centred kingship and legal science and law-centred kingship. The King was to be seen as a typus Christi and through this Christological exemplarism kingship entailed a scission between two aspects of the royal office: on the one hand, an ontological aspect that referred to the king’s being as an image of Christ and, on the other, a functional or administrative one where the actions of the King were exalted as being those of a vicar of Christ. The King was seen as a minister or executive of God. It is crucial to underline the functional relation between an ontological aspect (being, essence) and an administrative aspect (praxis) in Christological kingship. This separation of powers raises important questions as to the understanding of power in this period (and more generally) and it will be further questioned in the next chapter. It is to be noted again that the crucial issue arises not so much with the mere separation of powers as depicted in the Christological exemplarism above, but in the relation between the two aspects or powers that it, nonetheless, presupposes. When, by the time of the investiture struggle, the battle for holding the sword of spiritual power and the theories as to the real presence of Christ in the Eucharistic sacrament concurred, the two natures of Christ were no longer seen as the centre of divine exemplarism in relation to kingship. The Emperor was now styled as deus praesens. After the dissolving of the Christo-centric designation, Kantorowicz writes: A papal Christus in terris was sided by an imperial deus in terris. As a pater subjectorum, ‘father of his people’, the Prince, it is true, was granted the faint resemblance with the invisible Father in Heaven; but the vicar of the visible incarnate God, of the God-man, was the priest, the supreme hierarch.36

36 1957: 92.

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During this period of shifts in late medieval nomenclature, Kantorowicz continues: As opposed to the earlier ‘liturgical’ kingship, the late-mediaeval kingship by ‘divine right’ was modelled after the Father in Heaven, rather than after the Son on the Altar, and focussed in a philosophy of the law, rather than in the – still antique – physiology of the two-natured Mediator.37 The transition was not abrupt. The Prince’s twin-like duplication became manifest in the king’s new relationship to law and justice, which replaced his former status with regard to the Sacrament and the Altar. In 1159 John of Salisbury wrote his Policraticus using numerous legal idioms, without yet overturning the modes of medieval thought. The image of the King was now related to the image of equity and justice (Rex imago aequitatis), which formed the living spirit of the law (lex animata, iustitia animata). In doing so, John of Salisbury was attempting to resolve a central problem with regard to the nature (the source or foundation) of absolute power and its end or limitation. The antinomy of power can be seen in one of its paradigmatic forms: absolute power, power sui generis, has its source in itself and is inexhaustible and illimitable (in one way or another, i.e. if the king’s power is derived from God’s power then at least God’s power can be seen as absolute and sui generis and by transference so could the king’s). But such an absolute power is full in itself and as such it remains impotent (it is always already all that it can be). Yet the attribution by John of Salisbury claims, albeit paradoxically that this very power is limited by law. The King is free from the ties of law (legibus solutus) and yet ‘limited’ by his ‘innate’ sense of justice. Ex officio the king is the minister (vicar) of justice, equity and law and of the public weal or utility: a persona absoluta and at the same time a persona publica. Kantorowicz, in his analysis of John’s construction, outlines the essence of this ‘antinomy’ by reference to a heading of Chapter IV of the Policraticus which reads as follows: ‘That the Prince, although he be not bound by the ties of law, is yet law’s servant as well as that of equity; that he bears a public person and that he sheds blood without guilt.’38 Not bound by the law in terms of its being or essence, yet bound to serve the law in its praxis is the key paradoxical formula which separates a do-nothing nature in the Prince and his vicars’ administrative execution of his power. Absolute power remains absolute even during its self-limitation, since it is mythologically understood as absolutely self-law-giving (autonomous). That a public expectation of justice is raised through this image of an antinomy, which turns out to be a pseudo or virtual antinomy, is perhaps significant

37 Ibid: 93. 38 As quoted in ibid: 95.

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enough as an aspiration, but it would be misguided to draw any triumphant rhetoric in a populist sense out of it (other than to see it as the glorification of the, otherwise, impotent absolute power at the centre of power and law, as it is argued later in this work). Ultimately, and as it is argued in Chapter 4, it is uniquely significant, for the figuration of the Prince and for the understanding of absolute power more generally, that the King may shed blood without committing a crime and thus be without, juridically at least, guilt. This may be an early precursor of the paradigmatic sign by which we still understand (absolute) power today as taking place through an exceptional logic (what takes place in the exception or state of emergency can admit no guilt). A power that can admit no guilt and whose actions, therefore, cannot be seen as actions is an absolute power (an impotent power). How could this distinction, as advanced by John of Salisbury, be understood then? At first glance the distinction between a private and a public persona of the king could be seen as key. In agreement with Kantorowicz, however, it is argued that the key lies in the nature of the public person itself which becomes the vicar of a transcendental righteousness. The public persona of the King internalizes the antinomy of powers. The antinomy in question is produced, and remains, as a virtual one, precisely because it has its source and its limit located at one and the same place: bound by law and yet above the law. The Prince in his official capacity is the law or, better, is himself Justice as the pater legis and as lex animata: the soul or living spirit of the law. Two generations later, we are told, legal thought having ‘prevailed’ over the liturgical spirit of the old (though in no way diminishing its own liturgical aspects) led the way towards a ‘secular spirituality’. King Frederick II of Sicily was recognized as the ‘fountain of Justice’ ( fons iustitiae) – much repeated to characterize French kings in sixteenth century France39 – which was reminiscent of the image of Caesar as Father and Son of Justice (at the same time – Pater et filius Iustitiae).40 The economic (triadic) formulation at this point cannot be ignored, as is suggested in more detail in the next chapter. The quasi-theological tone of Frederick fits the intellectual climate of his Magna Curia ‘where the judges and lawyers were expected to administer Justice like priests’ and where the High Court sessions, staged with punctilio comparable to Church ceremonial, were dubbed: A most holy ministry (mystery) of Justice (Iustitiae Sacratissimum ministerium [mysterium]); where the jurists and courtiers interpreted the ‘Cult of Justice’ in terms of a religio iuris or of an ecclesia imperialis representing both a complement to and an archetype of the ecclesiastical order; . . .41

39 See Church, 1941. 40 See Kantorowicz, 1957: 97–8. 41 Ibid: 101.

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Now, the theology of kingship did not need to directly refer to the idea of Christ-centred kingship, but could efficiently derive its principii through its own princeps, which, however, acquired their absolute authority and mystery through the bipartite persona of the King, whose realm formed on a threshold between Heaven (divine justice) and Justice on earth. The ambiguity of the King’s public persona did not go unnoticed and the lex regia 42 could be interpreted in a twofold manner as pertaining to the purposes of royal absolutism, as well as to ‘popular sovereignty’. Accursius expressed the antinomy of the Princeps legibus solutus est according to which the Emperor was free from the law only in the sense that there existed no legal machinery for bringing him to justice if he broke the law. As such the Emperor could be conceived as free only because of the functional economy that was founded between a transcendental righteousness (an economy of non-law) and an immanent right (an economy of law). This fact was to hold de facto as well as de jure. The problem for Accursius was, as Brian Tierney writes, that: Since the only lex regia he could envisage was a general mandate of authority containing neither specific limitations on imperial power nor specific exemptions from particular laws, he could only investigate its significance by attempting to construct a pure theory of sovereignty. That is to say, his task was to work out all the implications of attributing an unlimited legislative capacity to the Prince for a legal system that was conceived of as a structure of interdependent rules.43 While the imperial power was conceived as externally unlimited and free, it was conceived as internally limited on the basis of the Emperor’s own will to discipline himself and live in accordance with the law.44 The notion of the will is absolutely key in the development of this discourse (one power, an absolute power, is absolutely perfect and does not act, while another power, an ordinary power, acts out the will of that absolute power). The de jure obligation to limit the free exercise of sovereignty, for Accursius, arose from the fact that the law for him was something sacrosanct as promulgated by divine will and hence as immutable.45 Law is conceived as a device and gift from the gods and is what all men should obey. For the medieval Christian, Accursius, the

42 The Lex regia was the means through which the populus Romanus ‘conferred’ on the Emperor the imperium and potestas it had previously had. So in the Digest one reads: ‘Quodcumque igitur imperator per epistulam et subscriptionem statuit vel cognoscens decrevit vel de plano interlocutus est vel edicto praecepit, legem esse constat.’ Dig., I, iv, 1; Dig., I, ii, 2, 1–12; see Watson, 2008. 43 Tierney, 1963: 390. 44 Accursius 1487/1968: Gloss ad Cod 1.14.4. 45 Ibid.

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essence of the argument was that a sacrosanct Law preceded the sovereign laws since sovereignty was grounded in divine Law. Accursius did not associate the principle of legibus solutus with the exercise of sovereignty. The logic of a ‘Law of law’ led Accursius to argue that the Law logically precedes earthly sovereignty (law). The law that precedes sovereignty is the sacrosanct Law of general principles that are assumed to produce sovereignty as such. A consequent practical distinction that is drawn by Accursius is of particular interest: what pleases the Prince has the force of law, but not everything that the Prince states or acts upon is a law or is lawful.46 As we shall see, this construction is strikingly similar to the Anglican solution in postrevolutionary England.47 The solution to the mythological antinomy of the structure of law was found in this instance through reference to a presupposed velle and not an esse: that is, by means of the King’s voluntary and rational subjection to the Law; a distinction that would become central to the later attempts to conceive of the notion of popular sovereignty or the will of the people so problematically central to the understanding of Western democratization. Thus, the King, in Frederick’s formula, was now legibus solutus and ratione alligatus (bound by a semi-divine reason). Akin to this semi-divine reason, occupying an intermediate position between theology and jurisprudence, the ultimate end and challenge to every judgment, justice was, properly speaking, ‘not law at all’, though ‘she was present in every law’ and ‘existed before any law ever was issued’:48 Iustitia was perceived as an Idea, a goddess and as such as an extra-legal premise of legal thought. When the role of interpreting the antinomy in question at the very source of law, administration and government, fell with the secular authority of the Roman law books themselves, despite continuing references to Scripture, as confirmed in the use of sacred literature by glossators and post-glossators, supreme authority was vested, in this form, in the Law (of law) as such. We may recall the significance of the transition in remembering that the Anonymous Norman contrasted the Old Testament King ‘who offered himself as a living host, a holy host, a host that pleases God’ to the Levirate who ‘only reproduced the King’s spiritual sacrifice by symbolic actions when they offered on the altar the non-spiritual visible sacrificium carnale’.49 Now, following the law-centred typology of kingship, Kantorowicz notes: the Prince did not cease to be ‘King and Priest’, but he regained his former priestly character – shattered, or at least reduced, after the investiture

46 47 48 49

[my emphasis]; 1487/1968: Gloss ad Inst.1.2.6. See Tierney, 1963: 378–400. Kantorowicz, 1957: 110. See ibid: 117.

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struggle – through the high pretensions of Roman legal philosophy which compared the jurisprudents with priests.50 The jurisprudence books themselves (i.e. characteristically The Laws of Justinian) represented the sacrificum iustitiae as the rulers’ oblation and offering. The Emperors were, after all, Iustitiae sacerdotes. The laws themselves were seen as holy and as such holy things pertained now either with the Church or with the magistrates who, by dispensing things holy (laws), were acting as priests. The King was not only, now, the oraculum of divine power, but he himself was the living or animate law (lex animata), the incarnation of Justice. Justice (as much as Law) was able to be present sui generis, despite or rather because of its antinomiac existence in the twin bodies of the King. The absolute impotent life of the Law and of Justice was present beside (para) the life of the natural body of the King. The King was the living law of the universal legislating community. Aquinas commenting on Aristotle’s Nicomachean Ethics does not fail to describe the judges as intermediates (medios) and as vel mediatores (mediators).51 The Judge is ‘animate justice’, by transference, but it is the King who is justice as such. The King is above the law because he entails the ‘living form of the law’ (the image of a donothing King). The King was the wilful and free mediator of the meta-legal (natural law; law sui generis, vis directiva) and of positive law (coercive law, vis coactiva). This position was akin to the position of Justice as the power ‘intermediate between God and world’.52 Justice itself, like the bipartite body of the King, was economically split between alia divina and alia humana, celestial and terrestrial justice, perfect and imperfect, invisible and visible, abstract and concrete. In effect, what changed in the so-called ‘Era of the Jurists’ was not the bipolarity in question but the mood and the means of its new interpreters, the jurists, who were now arguing for their scientific and professional purposes, rather than for strictly theological ones. Jurisprudence was after all, in Roman law, ‘the knowledge of things divine and human’; jurists were worshippers of justice (Iustitiam namque colimus) and justice, following Baldus, was a habitus which does not die (non moritur).53 Consequently, justice could fail (could be ‘killed’), but could not be sacrificed: its way of being was sacer only through its being taken out of itself, its being torn between a transcendental plane and an immanent plane. Theological grace may no longer have a secured place in the new pseudo-polarity between the transcendence of natural law and the immanent laws of ‘man’, yet the

50 51 52 53

Ibid: 118–19. Ibid: 137. Ibid: 137. Ibid: 138–9.

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glorification of the transcendental ideas of Law and Justice remained, as it did for all pseudo-universals. In England around 1259 the lawyer Henry De Bracton (a contemporary of Frederick) wrote of the ideas of justice and law in his De Legibus et consuetudinibus Angliae and presented them as ‘useful fictions’. Bracton took over from Accursius the structure of the ‘Law of law’ and incorporated it into his treatise on the laws of England. The question of the antinomy remained the same: was the King above or under the law? For Bracton the answer was that the King was under the law. This was not without complications: the operative distinction in Bracton was between gubernaculum and iurisdictio. In gubernaculum, the sphere of government, the King had absolute power, whereas in iurisdictio, the sphere of Right, the King had no power. The King was bound only to the divine or natural law in its transcendental meta-legal abstraction, as well as in its temporal concrete manifestations. Nonetheless, the King in Bracton remained above and under the law in a form that Kantorowicz characterized as a paradoxical formula: ‘His supra-legal rights, serving “those things which pertain to jurisdiction and peace” and their protection, were granted to the King by the law itself . . .’.54 From the lex regia, Bracton deduced not only ‘the King’s allegiance to the King-making lex regia and his dependence on it’, but also ‘the King’s legal power and legal authority to legislate on behalf of the people and interpret the law as he pleases’.55 Yet, Bracton’s will of the Prince to act as he pleases was qualified, according to Kantorowicz, by needing to please the consilium of his magnates. The heart of the King, where law resided, was now attended to by agile doctors of law who would, henceforth, perform regular heart operations and transplants. Thus, the antinomy of the origin of law in kingship is maintained, albeit modified, in that its author remains the King who as auctor iuris, God-like, when submitting to the law, which is both his and God’s, as God’s minister. He could not be above the law as he has already included himself within it as such. But precisely because of this inclusion he can maintain himself at the same time outside the law. The method is pseudo-dialectical: It relies upon the logic that there cannot be a genuine ‘Prerogative’ on the one hand without submission to the Law on the other, and that a legal status above the law could legitimately exist only if there existed also a legal status under the Law. The Law-abiding King, therefore, becomes ipso facto a ‘Vicar of God’; he becomes a legislator (auctor iuris) above

54 Ibid: 149. 55 Ibid: 151. ‘Placuit’ (in the phrase ‘as he pleases’) in Roman technical legal terminology emphasized mainly the decisive authorization of the law without reference to its content or its motives.

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the Law and according to the Law; and he becomes the responsible expounder of the existing laws and of royal actions which may not be disputed by either officials or private persons. For were the king not Law abiding, he were not a king at all, but a tyrant.56 The King acts vice Dei, in the place of God and in the name of the throne of God. Bracton describes the royal judges as acting quasi vice Jesu Christi; whereas, in contrast, the King is described as acting quasi vice Dei through an economy of vicarious power.57 The King as founder of law through his vicarious relation to God acts as father of the legal system, and the judges act in imago christi. Another formation of the pseudo-bipolar division of powers in question then manifests itself, here, as that between legislation and execution. It is the relation that needs to be equally safeguarded ‘under Law’ as much as the supremacy of one power over the other. For Kantorowicz the formula translates as follows: ‘a legislator above the law and according to the law’.58 Bracton’s formula is: ‘non sub homine, sed sub deo et sub lege’ (no writs run against him [above the law] but God will punish his abuse of power [under the law]).59 For Kantorowicz the bipolarity of the King consists, in Bracton’s formula, not any longer in relation to two kinds of law (natural law–positive law), but in internalizing the twofold relation of the King to the concrete law of England as one body of law. Ewart Lewis criticizes Kantorowicz for rushing to his conclusion in his interpretation of the maxim and instead opts for what he calls a pragmatic reading of the formula. Bracton’s King, for Lewis, is bound by the law in the sense that legal rules determine what he can and cannot do in terms of Right. While his iniuriae cannot be institutionally enforced, he will be punished by God for them. This follows, for Lewis, from the overall function of the raison d’être of kingship, that is, by his nature of being a King to protect the law of the land. ‘Being above’ is grounded in God’s Law and its double of ‘being under’ is grounded in human law.60 But God holds only an impotent power, a non-law, and Lewis misses the point as to the functional relation that is instituted in the bipolar body of the King. The King’s two bodies are formed at the threshold of the indistinction between God’s law (non-law) and human law. While Kantorowicz sees a paradoxical formulation and Lewis sees a pragmatic turn (where the King wilfully submits himself under the law even if his breaches cannot be institutionally enforced), it is possible to argue that between the two views what remains essential is the problematic presupposition of the functional relation between Law (God’s) and law (human) and 56 57 58 59 60

Ibid: 158. Ibid: 160–4. Ibid: 149. See Lewis, 1964: 265. See ibid.

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the safeguarding of the mythological supremacy of one over the other (be it out of rhetorical or dialectical paradox or indeed out of ‘mere pragmatism’). Justice being a perfect (full) potentiality of divine or semi-divine power (Law) needs nothing, yet requires its actualization by a royal person or dignity so that it manifests itself in law and as law. It could be said, then, as to Bracton’s paradoxical formula that the King is above law, but under Law (Justice, divine power, natural law) which as a transcendental righteousness has the form of a non-law. What remains crucial in this reading is the functional relation between a Law and a law or a potentia (an absolute power) and an actus (a power of government).61 In Bracton, with pragmatism in mind, it is in the realm of administration and legal practice that the impersonal power of kingship is manifested and perhaps ultimately grounded. Thus, Kantorowicz turns, in his interpretation, to the public persona of the King to reiterate his explanation of the royal status as ‘above the law’. Quoting Bracton, Kantorowicz notes that: things pertaining to the king’s peace and jurisdiction were ‘things quasi holy’, res quasi sacrae, which could no more be alienated than could res sacrae pertaining to the Church. Those things quasi-holy were ‘things public’ existing for some common utility of the realm, such as the preservation of justice and peace. Bracton held that those things belonged to the Crown as a royal privilege descending from the ius gentium which, in turn, had a semi-divine, or even divine, character similar to the ius naturale.62 The King with regard to ‘things public’ was outside legal time, unaffected, perpetual and sempiternal. The explanation for this character of kingship (the atemporal side) is, in Bracton, common or public utility. It is the common good that demands the glorification of immutability and the common good is represented by the Crown. A res quasi sacrae is identified with the res fisci. The source for this identification is Gratian who in the Decretum writes: ‘Hoc tollit fiscus, quod non accipit Christus’ (what is not received by Christus, is exalted by the fiscus).63 The inalienability of fiscal property is seen to figure in a spiritualized sense, at this point. The so-called ‘dead hand’ of the State, the fisc, represented a sphere of suprapersonal or impersonal continuity that was allegedly independent, though related, to the natural persona of the King. It is significant to note here that these arguments were important to the Church, especially during the time of Pope John XXII, because of disputes relating to ecclesiastical property: since the Church was claiming that it

61 On this see Chapters 2 and 6. 62 See Bracton 1915–1942 and Kantorowitz, 1957: 168. 63 Kantorowicz’s translation in 1957: 175.

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grounded its property upon the fisc of Christ so that it would argue for its inalienability, threatened as it were by the exactor of the fisc – the empire – it deduced the proposition that therefore Christ must have owned property.64 An inalienable thing does not need to act, but remains full within itself and hence from the perspective of earthly matters it appears and is necessarily impotent. In a similar fashion it could be argued that the King with his secular fisc was able to seek and guarantee perpetuity by transference to a secular impersonal and immortal fisc, that is, through the economy of a legally fictitious person (Christ or fisc). The economic structure of the secular state depended for its effectiveness on the presupposition of a transcendent res nullius or res publicae that it itself produced. The meaning of res publicae and jurisdiction over them is the crucial question raised in the thirteenth and fourteenth centuries to the point that the fisc was argued to be beyond the reach of royal jurisdiction due to its ultimate belonging to the community as such, whereby the King was acting, in this sense, only as a minister or vicar of the fisc. The fisc comes to signify that place, an empty place, wherein the ultimate source of power lies in its transcendent character over res publicae, that is, the public sphere at large.65 The ‘secular’ dichotomy between King and Law was facilitated through the apparatus of a public sphere which, by transference of the Church’s own fisc, showed the development of an administrative and public apparatus as the signature of the corpus mysticum of the King (and by transference, in turn, of the transcendental righteousness of which the King was the vicarious administrator). In the later Middle Ages the exchanges between the Church and the State are emphatically determined by legal and constitutional problems concerning the structure and interpretation of the bodies politic. At this time the Church through the pontificalis maiestas of the Pope becomes an absolute monarchy on a mystical basis, while the State becomes increasingly a quasi-church, or mystical corporation. The corporational doctrine of the Roman Church was expressed in 1302 by Pope Boniface VIII as follows: Urged by faith we are bound to believe in one holy Church, Catholic and also Apostolic . . . without which there is neither salvation nor remission of sins . . . which represents one mystical body, the head of which is Christ; and the head of Christ is God.66 The term corpus mysticum, as noted earlier, first came into prominence in Carolingian terms when on one occasion Ratramnus of the monastery of Corbie argued that the suffering body of Christ was his ‘proper and true

64 Ibid: 176 and f.265. 65 Ibid: 184–91. 66 As quoted in ibid: 194.

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body’, whereas the Eucharist was his corpus mysticum: the consecrated host. By 1215 the Eucharist was officially designated as a real body (corpus verum) and the Church in its attempt to reposition itself became a corpus mysticum as a body politic (and a legal organism on a level with the other competing political bodies.)67 The corporational argument during this period leaves aside the older sacramental interpretation centred on the Eucharist, but the schema of two bodies remains, through an almost explicit juristic designation of the Church as a mystical corporation (which still recalled the consecrated sacrifice). Aquinas untied the old sacramental connotation, though, when he referred to the corpus Christi as a ‘mystical person’,68 a political congregation, a representative body of God, ready to be transferred to any body politic of the secular world as its very own figuration. The Holy Roman Empire during the time of the papal revolution was thus called unum corpus reipublicae. Jurists would, further, be able to characterize two presences: the tangible body of the individual person and the corpus fictum of the corporate collective as a juridico-spiritual fiction. Baldus, for instance, will call the people (populus) a mystical body, over and against its twin multitude (multitudo ordinata): an empancipatory body of ‘People’ set over and against the mere multitude of the ordinary people. It was with the populus that the King was to be eventually ‘in relation’, a polity that could later claim for itself the ground of the Law as such, perceiving itself through what Dante called humana civilitas.69 A polity that is itself separated between an absolute body and a mere multitude, that is, separated between a potential power (which is perfect and which as such remains impotent) and an ordinary power (which entails the execution of the polity’s will by its vicarious governors). This economy entails the originary formal character of democratic government by representation or vicariousness (but as such it reveals also its secret solidarity with the absolutist government’s dependence on such an economic model of power). Excursus: In this regard it is difficult to underestimate the role of conciliarists from the early fifteenth century onwards, like Piere D’Ailly and Jean Gerson in Paris or indeed the later John Major and Jacques Almain, for their writings illuminate the transformation that the Corpus Christi mysticum underwent towards a realigned distinction between real natural bodies and a moral or political body.70 The Eucharist, for the conciliarist, becomes designated not as a body mysticum, but as a corpus Christi verum. For the conciliarists the issue was less mystical and more jurisdictional and in particular with regard to the non-sacramental power, the potestas jurisdictionis in foro exteriori. The conciliarists perceived the original source of their arguments 67 68 69 70

See ibid: 196. As quoted in ibid: 202. Ibid: 211–32. See Tierney, 1955; Jacob, 1958–59: 26–53; Villoslada, 1965: 317–30 and Alberigo, 1978: 213–50.

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to lie not only in Holy Scripture, ecclesiastical custom and canon law, but also in natural law and reason (akin to the Stoic understanding of natural law that pertained to the communitas mundi). The role of canonist thinking with regard to the reception of natural law arguments remained ambiguous. Nicholas of Cusa argued for a strong conception of natural law in writing that ‘every ecclesiastical order has rulers [and] by divine and natural law those rulers must be established by consent’.71 What is consent, if not the glorification (acclamation) of the arcanum of power? John of Paris went even further when he claimed that the real distinction of powers lay between the power of order which is transcendental in character and lies thus above nature and the power of jurisdiction (or government), conferred by consent, which is immanent in nature.72 Others, like Panormitanus (Nicolaus de Tudisco Siculus Matantensis), used different arguments not based on references to natural law. Panormitanus, for instance, argued that ‘the Church can be conceived of either as a “mystical body”, insofar as it is the whole Church represented in a general council (in which case it is ruled directly by the Holy Spirit), or as a “political body”, insofar as it is viewed as a series of parts – in which case it is ruled by the Pope’.73 Yet the term ‘political’ in these instances needs to be read with care since it was used in line with the conciliarist arguments as a whole for reasons of reassuring secular bodies that the parallelism between their arguments and the secular constitutionalists would be improper.

The distinction of absolute and ordinary powers The putative interrelation of the doctrine of two bodies with the forms of two presences (in Eucharistic theology) has already been outlined above, but the analytical purpose for doing so has not yet been disclosed. A parallel form of these structural depictions of the problem is argued in this section to be the distinction that lies at the heart of the Western Christian dogmatic understanding of power (one power – Law – as the source of another power – law – and by transference as its paradoxical limit being its illimitability which can be, perhaps, located in one of the central characteristics of the Christian God as ‘absolutely omnipotent’). Omnipotence was understood, or at least questioned, in the Middle Ages in various ways, but it was eventually grounded in a dialectical scholastic distinction between God’s absolute power and his ordinary or ordained power (potentia dei absoluta et ordinata). At the heart of the theology and philosophy of willed power, covenantal power and later of social contractarianism lay the long tension between the Christian notion

71 Nicholas of Cusa, 1932–63: 199–200 and 304. See Oakley, 1981: 786–810 and Watanabe, 1972: 217–36. 72 John of Paris, 1969: 69–212 and 127–34. See Oakley’s invaluable discussion in 1981: 799. 73 Oakley, 1981: 802; Panormitanus, 1857–1935: 3, 1022–125 and 1109–10.

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of an omnipotent and transcendent God and the Greek notion of the divine as an immanent and necessary order of a self-subsistent cosmos. As Francis Oakley has argued throughout his work, this tension mounts around the twelfth and thirteenth centuries and it took the form of a stumbling block: how is it possible to reconcile God’s virtual capacity to do all things with a power exercised in actuality?74 How can the capacity of divine power (hypothetically, in abstracto) be reconciled with divine volition in actuality (taking into account the orders of nature, morality and grace that God has actually willed or ordained to be established in the earthly realm)? To resolve this problem the terms of potentia dei absoluta et ordinata became standard in the thirteenth century. Their use ranges from Aquinas to the Franciscans, the early Dominicans, secular theologians and canonists like Hostiensis. The dispute over this distinction can be traced back at least to St Peter Damiani’s work De Divina Omnipotentia (1067), but the anxiety over the distinction becomes more evident in the twelfth century when the distinction becomes understood as one between absolute capacity (potential power) and volition or willed power; that is, of God’s potential power in abstracto and his actually willed power. The classical understanding of the distinction aimed at invoking the absoluteness of divine power grounded on God’s freedom to act and at the same time on deducing (if paradoxically) a contingent (yet ordained activity) from such absolute power (or freedom). The divine power in its absolute character, in the Old Testament’s sense, is seen as capable, out of self-willingness, to ‘guarantee’ a particular ordering in actuality. Aquinas explains this paradoxical logic of the ordained power in relation to absolute divine power by arguing that God’s power remains absolute even in relation to things that are understood as actual but not preordained since after all ‘nothing can come to be that he has not foreseen or preordained’.75 God’s power in the twelfth and thirteenth centuries is not seen as presentlyintervening-in-the-world (as governing), yet the contingencies that actually appear are explained as still pertaining to the original virtual power of God due to their necessarily belonging to the totality of possibilities freely available to divine power (prior to the establishment of the actual order).76 Such an inclusion of exceptional interventionism perhaps prefigures the structure of the state of exception that will be examined in Chapter 3, and it is argued, here, more generally, that it characterizes the decisionistic-transcendencesuffused image of sovereign power. A note on the terms themselves: it is important to observe the original theological argument as to the use of these terms. Absoluta referred to a

74 See indicatively, Oakley, 2002. 75 1964: Ia, qu.25, art.5. 76 See Oakley, 1998: 446.

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power that subsists simply, considered in the abstract, unrelated to any form of action, and instead related to what is the pure potentiality of divine power. As the exceptional study of William J. Courtenay has shown, the realms of potentia ordinata and potentia absoluta were not initially conceived as two separate realms, theologically speaking, one for a normal course of events and another for exceptional or miraculous events. Instead, ‘the realm of potentia ordinata fell entirely within that of potentia absoluta inasmuch as the ordained power was chosen from among the larger realm of possibilities open to God.’77 As Courtenay suggests, philosophical derivations (and indeed juridico-political ones) were only derivative of an originally theological distinction (though as it shall be argued below, the originary theological distinction was not a theologico-political one, but an economic one). The theological argument maintained that God is not bound to act in some particular way and also that the truths of nature and ordained grace were contingent and not necessary. As miracles were exceptions to the natural order, the natural order could only be contingent as such. In the twelfth century, Courtenay notes, miracles were discoursed not as examples of God’s acting absolutely, but as historic events which proved that some causal relationship with divine omnipotence was not absolutely necessary. The distinction between two powers was, thus, conceived on the basis of the assertion that God can, from the standpoint of his pure, absolute, potentiality, do things that he does not do or cannot do according to the natural and spiritual orders he has actually ordained. For the purposes of the analysis in this work it is essential to note the notion of pure potentiality that is implied here. Its origin could be seen, theologically, in Augustine, who separated divine potential will or capacity from volition, actual will. That is, the separation between potentiality and action, potentia and actus. Courtenay outlines two key aspects of this distinction in Augustine. On the one hand, in the doctrine of ‘potuit, sed voluit’ (he could, but did not wish to) and on the other hand, in the doctrine of ‘poterat per potentiam, sed non poterat per iustitiam’ (he could have through power, but not through justice).78 It can be argued that this distinction, as expressed in Augustine, concerned the distinction of divine power (omnipotentia) as to the indirect delegation of powers to angelic ministers of God and to Christological volition. Courtenay notes, however, that this distinction concerned the key question of divine power directly: ‘is God able to do things he does not wish to do and does not do?’ (which Augustine answered to the affirmative).79 As it will be argued in more detail in Chapter 6, this understanding of potentiality is identical to Aristotle’s formulation of potentiality as also impotentiality. In addition, as

77 1990: 19. 78 Augustine, 1886. 79 1990: 30.

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it will be argued in the next chapter, with Agamben the distinction also directly concerned the economy of divine and earthly powers, not only because of the inference to the delegation of divine power to angelic ministers, or of possible limitations to divine power for reasons of goodness or justice, but also because the rationale in question concerns the providential paradigm of the theological fact that ‘supreme goodness cannot do evil’.80 In the originary theological argument, for God to do evil would be to do nothing, that is, to remain in the realm of pure potentiality or non-being. For men, instead, their potentiality was open to the doing of both good and evil. In the light of this distinction of powers, omnipotent power was the power to do the good (not the power to do anything). In later juridico-political reformations of the distinction, instead, sovereign power was the power to do anything. Yet for the originary theological discourse the covenantal relationship of God with his creation was not a negative one. Power in abstracto referred to an antecedent and undeployed capacity of divine power, as opposed to a power in application, that is, a concomitant capacity. Potentia absoluta, thus, referred to de potentia pure considerata. In this sense, divine law, as presently revealed, belongs to the potentia dei ordinate, the lex aeternalis, rather than to the absolute potentiality of divine power. The structure of the ordained laws was contingent and not absolutely necessary, and God retained an absolute potential power to do and to not do. This argument was to be of particular significance for the Franciscans in their disputes with Pope John XXII. Thus, to summarise, the distinction of the two powers was not originally used to explain the doctrinal problem of miraculous divine interventions in the natural order. Instead the terms used in the twelfth and thirteenth centuries to deal with this question were potentia extraordinaria (with its focus on divine initiative) and potentia obedientalis (with its focus on creaturely initiative).81 As Courtenay points out, no one before the middle of the thirteenth century viewed potentia absoluta as a type of divine action. Miracles, for instance, were consistently placed within the preordained will of God, that is, within potentia ordinata. In the third quarter of the thirteenth century, however, the interpretation of absolute power based on the analogy between divine power and forms of human sovereignty entered the discussion primarily due to the attempts by canon lawyers to locate a formula that would express the relation of papal power to ecclesiastical law.82 The problem for the canon lawyers can be summarized in the following: the Pope was on the one hand committed to uphold the fundamental laws of the Church (status ecclesiae), while on the other hand he possessed plenitude of power (plenitudo

80 Courtenay, 1990: 30. 81 Ibid: 77. 82 Ibid: 92; see also, Post, 1964: 264–9 and Tierney, 1972.

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potestatis) through which he could temporarily suspend or alter particular lesser laws through dispensations or privileges for the common good of the Church at large (ratio ecclesiae).83 This dogmatic understanding undertook a particularly interesting transformation (in yet further differing ways) in the fourteenth century through the work of John Duns Scotus (1308) and his follower William of Ockham (1349). Ockham’s semi-juridical understanding of the theological distinction was influenced by the growing evocation (characteristic of Scotus) of legal and in particular constitutional metaphors to explain it. Hostiensis famously identified the potentia absoluta with the papal plenitudo potestatis, in order, crucially, to explain how the Pope could, in extraordinary circumstances, overcome the limitations of his normal jurisdiction and of the law (despite his self-binding to his ordained power).84 A version of this distinction had by 1271 entered into canon law, and it was by analogy evoked in relation to the imperial absolute powers of the Prince in order to explain how the Prince was bound by the ordained law (out of self-willing or benevolence), while retaining the prerogative of acting against or above the law. The role of Duns Scotus in this transformation of the classical understanding of the theological distinction into a juridical structure is key. Francis Oakley writes: [Duns Scotus] distinguished (by analogy not only with Kings, but with any free agent within whose power the law falls) between the ordained power whereby God acts de jure, in accordance with the rightful law he has himself established, and the absolute power, whereby de facto he can act apart from or against the law. In such a formulation the absolute power exceeds the ordained and the implication is clear that potentia dei absoluta, rather than referring simply to the realm of logical possibility prior to God’s ordination of things, is construed as a presently active and extraordinary power capable of operating apart from the order established de potentia ordinata and prevailing in the ordinary course of things.85 In this distinction between a de jure and a de facto power, the presupposed schema is that of a Law of law as a meta-legal structure or a structure of a Power of power, wherein absolute potentiality is not conceived as a pure potentiality (as a non-action), but as an exceptional action. Absolute Power is operationalized on the basis of this presupposition whereby power entails a potentiality that is illimitable (absolute, perfect, impotent) and an actuality

83 See Courtenay, 1990: 92. 84 See Oakley, 1998: 442. 85 1998: 447.

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that is stable and limited in its ordinary appearance; either way potential power is exhausted or to be exhausted in the ordinary realm. Canon lawyers, doing violence to the theological understanding of the distinction, used it then to describe two alleged dimensions of the relation of the Pope to the Church. This served the purpose of proving that papal conformity to the law was not an external obligation imposed by God, but an internal, self-imposed obligation. This may, indeed, be the origin of the modern problem of sovereign obedience to the law, and yet its origins, as Courtenay suggests, can be located in Roman law under the principle of lex digna (the Prince is bound by law only out of his benevolence).86 The Pope was bound by the law, in this sense, de potentia ordinata. This distortion of the earlier theological interpretation of the distinction established the doctrine, which would have significant juridico-political influence in Western juridical rationality, that the distinction referred to two types of action: a normal and an occasional or exceptional action, one inside the law and one that sidesteps the law. The confusion of terms entails the substitution of potentia extraordinaria with potentia absoluta, wherein absolute potential power is not an ability that could any longer be considered apart from action (as a realm of pure potentiality), but instead, according to the canonists, as a form of exceptional action. While Scotus ‘unwittingly’ aided, for political reasons of his own, the canonists’ interpretation of the distinction, the Franciscans would continue to reaffirm the originary theological interpretation. The canonist interpretation would, in turn, influence theological discourse so that their interpretation would be seen to apply to both God and every free agent. Here lies the seed of the modern problem of the distinction between de facto and de jure powers. De facto power was understood under the sign of absolute power, as acting apart from the law, whereas, de jure power was ordained legal power acting according to the law. Potentia absoluta became then the definition of any form of action, divine, papal or human, that allows one to act outside and against the legal structure of right, stipulating a Right of right, a transcendental source of rightness. It is this interpretation that the medieval and early modern political figures and writers would adopt in order to support both royal absolutism, as well as the ‘constitutional’ principle that the relation between ruler and ruled was based upon a covenant or contract.87 Exceptional action would only be permitted in this scheme of things if it were for the general good of the commonwealth. Francis Oakley’s work has explored the implications of this in relation to the thought of Pierre D’Ailly, who in 1375–76 insisted that absolute divine power is indivisible, but entails two understandings: as absolute it is limited by nothing, except by the principle of non-contradiction; while as ordained ‘it

86 1990: 92. 87 See Courtenay, 194–5.

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can refer to everything that God is able to do by his absolute power provided only that it does not contravene any truth of the ordained law or sacred Scripture’.88 Thus, Oakley suggests that the classical and the operationalized or juridical understanding of the distinction are not that different after all and that this is underlined by the fact that the idea that God was able to intervene in the ordained (by his extraordinary or miraculous interposition) was already operational in the early Middle Ages, as at least one interpretation of the distinction. God’s potentia absoluta in later centuries (sixteenth and seventeenth) became defined more and more narrowly so that the realm of God’s extraordinary action fell within the realm of potentia ordinata.89 Francisco Suárez in his De Legibus ac Deo Legislato refines, but maintains, the contrast between the two powers, as Oakley notes in the following manner: ‘[between] what is possible for God, using his power to grant dispensations from the established law (secundum statutam legem) with what is possible to him “by ordinary law, that is, by the law which he has imposed on himself ”, or again, “in accordance with his ordained power” (potentia ordinata)’.90 Excursus: It is well known that Luther developed his doctrine of the two kingdoms as between a Heavenly realm of grace and faith and an Earthly realm of politics and law. It is worth keeping in mind here, briefly, that Luther abolished the ecclesiological jurisdiction in an attempt to delegalize the Church and advanced a conception of the Church as a purely spiritual community. In his Lectures on Genesis (1539), Luther contrasted God’s potestas ordinata or ordinaria with his potestas extraordinaria. Oakley comments: By the former God condescends to act through secondary causes and ‘through his creatures, whom he does not wish to be idle’. It is in accordance, then, with ‘God’s ordained power that water dampens, fire burns, etc.’ But by the extraordinary interposition of God’s absolute power, ‘in accordance with which he acted at that time’, Daniel’s companions were delivered from the flames of the Babylonian furnace.91 Yet, for Luther, the will of God is now hidden and while it still grounds the law, God has withdrawn from acting through his extraordinary power, and his secret will (voluntas beneplaciti) does not govern the earthly kingdom any longer. Omnipotence becomes narrowed down to the revealed and preached Word, the one revealed by the Son according to God’s mercy. Yet, both Luther and the French reformer John Calvin maintained that even the most

88 89 90 91

Oakley, 1998: 448. See Eck, 1976: 122–6 and 127–8. Oakley, 1998, 454 quoting Suárez, 1612: Lib.II, cap.2, 104, col.1 C-D. Ibid: 456 quoting Luther’s Vorlesungen über I, cap.19, 14–20 in Luther, 1955–1976.

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tyrannical monarch was an earthly power appointed by God and, as such, monarchical absolutism was grounded in the absolute power of God. When Calvin in 1536 argued for resistance to be exercised by the lower magistrates, as an extraordinary right against a cruel monarch, he took a different and stricter line on potentia dei absoluta. In fact, Calvin rejected the older distinction between the two powers (puissance absolue and puissance ordinaire) in order to maintain the unity of divine power with divine justice. In doing so, Calvin argued that whatever God does he does so through his ordinary power even if this power may be displayed in miracles, providence and predestination. The distinction was further transposed in the implicit understanding of power that comes now to be termed an internalized distinction between providentia ordinaria and extraordinaria.92 In his Six Livres de la république (1576) Jean Bodin characterized England as an absolutist monarchy: ‘The entire sovereignty belongs undivided to the Kings of England.’93 It was not uncommon to describe the royal powers in England as characterized by an ordinary and absolute prerogative, in arguing that the latter metaphorized the canonistic interpretation of divine extraordinary power. Sir John Davies reflects this position when he claims that despite the fact that the English King limited his absolute power by bringing it under the ordained laws, the royal prerogatives empowered the King to preserve the common-weal, even if it becomes necessary to ignore statutory limitations.94 The cleric Peter Haylin maintained that Kings hold unlimited power on the basis of divine power: ‘The Kings do hold their Crownes by no other Tenure, than Dei gratia: and that whatever power they have, they have from God.’95 John Selden confirmed this view by stating that ‘All things are held by Jus Divinum either immediately or mediately’, which applied equally, in this view, to both the Church and the King.96 The fusion of the canonistic interpretation with the doctrine of the two bodies takes place, arguably, in Fortescue, for whom two presences become evident in his use of the analogy between the social and the human body: ‘Just as the physical body grows out of the embryo, regulated by one head, so does there issue from the people the Kingdom, which exists as a corpus mysticum governed by one man as head.’97 By the royal head, a ‘composite’ body was claimed as early as in the midfourteenth century whereby the Parliament was invoked as part of that ‘body’ called ‘England’. Fortescue’s famous definition of England, borrowing

92 See the discussion in Oakley, 1998: 457–9; see also Calvin, 1960: III, 23, para.2 and I, 17, para.2. 93 Bodin, 1992: book 1, c.8, 23. 94 See Davies, 1656: 30–1 and 97–8. 95 Heylin, 1637: 33. See Oakley, 1998. 96 This was pronounced during the Presbyterion debate of 1645–6. See Oakley, 1998. 97 As quoted in Kantorowicz, 1957: 224.

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terms used by Aquinas, as a dominium regale et politicum, while not constitutionalist in nature, defines, at last, an era’s invocations and claims, through a fusion of secular and ecclesiastical references. It should also not be disregarded that early ‘constitutionalist’ interpretations of the English polity during this time did not avoid theological references in their claims as to the role of a ‘mystical’ Parliament. In any case, the terms – corpus politicum et corpus mysticum – became fused in the prevailing corporational doctrines of the time which had not yet completely identified with each other. What is perhaps appropriate to say at this point is that what was more interesting during this period was not so much the mere fusion of the two powers but rather the direct formulation of a relation between them. The earlier relation between King and Law had become pronounced, to a different extent, in corporational terms as that between the King and the body politic of the realm. This fusion partly explains Fortescue’s fifteenth-century writings that praise common law as competent to deal with political matters and which yet qualify such praise by the occasions when the King could and should disregard its findings.98 This can be seen further in relation to the development of the rules of equity. More, arguing against Tyndale about the ‘specyall prerogatyve’ of God’s mercy, describes it as exercised by God’s ‘absolute power [which] is neyer bounden under any rule of his ordinary iustyce’.99 Thus More adopted the distinction between God’s ordinary power and his potentia absoluta. This becomes more evident if the position of More with regard to equity, conceived as the exception to ordinary law, is examined within the wider debate that ensued among More, St German and Coke. More argued against Luther’s separation of aequitas from law and viewed equity as integral to law.100 St German follows Fortescue’s distinction between jus regale and jus regale politicum (or jus regale et politicum) and further addresses the question of the Church as a community wherein the clergy do not play an exclusive role. St German’s theory of law (expressed clearly in Doctor and Student) was written before the English Reformation and is grounded on the ‘Law Eternal’, the ‘first law’, that is, the law of God and the law of nature and reason which work as supplements to each other and are ‘higher’ than positive law.101 Statutes are derivative of the law of reason and the King receives his office through the divine. In addition, legislation comes to refer to the King-inParliament and the royal prerogative (legibus solutus) is silenced. Equity, St German writes, ‘is secretly understood in every general Rule of every positive law’.102 When positive laws judge in a particular case against conscience then

98 99 100 101 102

See ibid: 225–231. More, 1963–87: VIII, 1, 569. See Baumer, 1937: 633. See St German, 1974: 4, 5, 25 and 53. Ibid: 45.

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equity formed an exceptional power of the divine law or natural law (Reason) over the general laws. The significance of St German’s position cannot be underestimated if considered in the wider sense of the debate over the power of equity (which Selden had called ‘a roguish thing’, susceptible to abuse and akin to the ‘Chancellor’s foot’). In St German the role of equity is approached as a canon of legal interpretation, tempering the letter of the law, and is inextricably interwoven into his ‘political’ theory. Sir Frederick Pollock described the wider frame of the debate in what follows: The first method works by occasional interference; the occasions may be frequent or not, but each interference is still an isolated act. The second method works, on the contrary, by continuous development. It is by this time almost a commonplace that the more archaic dispensing power, when it falls into a regular course of official administration, loses its arbitrary character and gradually assumes all the features of scientific law, becoming as Blackstone said a century and a half ago, an artificial system. In the technical English terms, extraordinary jurisdiction ends by being ordinary. So gradual is the change that it is not altogether easy for the modern to realize its extent or the discrepance of the original points of view. . . . In England the archaic form of equity predominated in the king’s administration of special remedial justice during the fourteenth and fifteenth centuries; the sixteenth was a period of transition; before the end of the seventeenth the Court of Chancery was not only a regular court of justice but had started on the road of technical and scientific elaboration.103 In this context, St German combines, to an extent, the interpretive understanding of Aristotle’s epieikeia with the Christian doctrine of epieikeia founded upon divine authority and manifested in natural law or natural reason, albeit carefully demonstrating that the common law, rather than the decrees of the Church, should govern conscience. According to St German, conscience is grounded in the natural law manifested through revelation and reason and received by sinderesis, a rational faculty which compels that ‘the order of things should be observed’ as is self-evident.104 While conscience is the art of applying the law of nature and the law of God upon human activity, equity is narrower and supplements only the application of positive law. The Chancellor effectively could only intervene where the law was silent. Law, was, nonetheless, ‘artificial’ reason (artifex, crafted), unwritten, residing in the mind, incremental and deduced by

103 Pollock, 1913: 287–90; see also Dobbins, 1991: 113–49. 104 St German, 1528/1974: 80–3.

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deceptation.105 The key tension of the period was even more evident with regard to the jurisdiction of the Chancery courts where, according to the conventional view, the Chancery held an ordinary power to act as a court of common law, but also an absolute power through which it could modify the rigour of the English legal system. Coke accepted the necessity of such jurisdiction, but he promoted the qualification that the discretion exercised by the Chancery courts was not a discretio specialis (limited only by natural law), but rather a discretio legalis (subject to ordinary common law).106 During the fifteenth century the debate over the legal powers wielded by the courts of Chancery and those wielded by the common law courts reiterated the ‘mysterious’ distinction between potentia absoluta and potentia ordinata. In the Year Book for 1469 the two terms are used in the discussion of the powers of Chancery.107 The canonist origins, preceded by the theological origins of the distinction, found their way on numerous occasions into the otherwise insular common law mentality, one of which was its reiteration by Davies. Davies in his treatise on impositions wrote that Parliament had no jurisdiction in the King’s right to levy impositions since royal impositions had their origin in the law of nature (ius gentium) and the law merchant, which was the exclusive prerogative of the King. The borrowing of the distinction from canonist usage was not a simple affair, especially if located within the context of Davies’s own praises for the ‘immemorial character of English law’ in relation to the establishment of public law title to Ireland by right of conquest.108 The right of conquest was widely established on the basis of civil law doctrine (Grotius, Gentili). Davies refocused the distinction of absolute and ordinary power away from the papal powers and yet remained influenced by the canonist distinction as such: The King himself was pleased to limit and stint his absolute power, and to tye himself to the ordinary rules of the law . . . [but we should not forget that he continues to] . . . exercise a double power viz. an absolute power, or Merum Imperium, when he doth use Prerogatives onely, which is not bound by the positive law; and an ordinary power of Jurisdiction, which doth cooperate with the law.109 Davies drew a striking parallel in relation to the King’s absolute power with the divine absolute power when he wrote that in limiting his absolute power

105 See also 7 Coke, Calvin’s case, 19a, repr. in The English Reports, 178 vols. (London and Edinburgh, 1900–32), 1xxvii, 400 (also in 77 ER 400). See Oakley, 1968: 323–46. 106 See Baker, 1986 and Jones, 1967. 107 YB 9 Edward IV, Trin.9, ed. as Les Reports Des Cases on Ley du Roy Edward Le Quart (London, 1680). See Oakley 1968: 323–46. 108 See Davies, 1612/1988: 71–2; see Oakley, 1998. 109 Davies, 1656: 30–1.

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the King ‘doth imitate the Divine Majesty’, which in the Government of the World ‘doth suffer things for the most part to passe according to the order and course of Nature’.110 Protestant theological literature had already adopted the theological distinction, despite Luther’s characterization of the distinction as ‘sophistic’ and his own assimilation of the doctrine. This is not to deny the extent to which the distinction underwent modification and transformation in the complex exchange between theological and juridical discourses. The absolute power of God was limited only by the principle of non-contradiction over and above all laws (physical, divine and natural). The Pope’s absolute power was held to be above only positive law, while the King’s absolute power was superior to positive law, but subject to natural law or jus gentium and divine law. Oakley writes: In 1628 Sir Benjamin Rudyard, deploring the ravages wrought in the name of ‘Reason of State’, but unwilling to deny that the ‘King ought to have a trust left and deposited in him (for ‘extraordinary cases must happen’) felt it necessary to try to turn the theological tables on the defenders of the absolute power by pointing out that: ‘God himself has constituted a general law of nature to govern the ordinary course of things, he hath made no law for miracles; yet there is in this observation of them, that they are rather ‘praetar naturam’ than ‘contra naturam’ and always ‘propter bonos fines’ for King’s prerogatives are rather besides the law than against it.111 In the great Stuart trials in the early seventeenth century the distinction acquired a number of proponents, chief among which was Chief Baron Fleming’s argument in the famous Bate’s case in 1606. Fleming argued that imposing customs duties was something that the King could do on the basis of his absolute power applied for the general public good as salus populi (a glorifying people).112 This is how Fleming expressed the distinction in a famous passage: To the King is committed the government of the realm and his people; and Bracton saith, that for his discharge of his office, God had given him power, the act of government, and the power to govern. The Kings power is double, ordinary and absolute, and they have several lawes and ends. That of the ordinary is for the profit of particular subjects, for the execution of civil justice, the determining of meum; and this is exercised by 110 Davies, 1882: 542. 111 In a speech in Parliament, April 1628, quoted in Howell, 1816–26: III, 173f. 112 Lane 27, 145 ER 271; the distinction arises often in this period in cases such as the Post-Nati case 1608, Darnel’s case 1627 and the Ship Money case 1637. See Howell, 1816–26: vol.III, 1016. See Oakley, 1968.

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equitie and justice in ordinary courts, and by the civilians is nominated jus privatum and with us, common law: and these laws cannot be changed, without parliament: and although their form and course may be changed, and interrupted, yet they can never be changed in substance. The absolute power of the King is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people and is salus populi; as the people is the body, and the King the head; and this power is guided by the rules, which direct only at the common law, and is most properly named Policy and Government; and as the constitution of this body varies with the time, so varieth this absolute law, according to the wisdome of the King, for the common good.113 The use of the prerogative in this case, Fleming suggested, was legitimate since the matter in question was a ‘natural matter of State’ which ought to be ruled by rules of policy and government and not of law. For Fleming, the common law was a mere vis directiva in its relation to absolute power (which follows its own absolute law in the King’s wisdom for the purposes of the ‘public good’). After all, the King was the ‘fountain of Justice’ who enjoyed ‘free jurisdiction’ or ‘sovereign power’ held immediately from God.114 What is most interesting, at this point, is the increasing argumentation for the King’s absolute power as his exclusive prerogative, construed as a legal power at large. A growing tension in this period (and perhaps up to the modern age) forms around the character of absolute power as both extralegal (extraordinary, non-legal) and the juristic construction of such powers as ‘beside’ (para) the law (not exactly within and not exactly outside the law). One of the most vocal supporters of the juristic construction of extraordinary powers was Heneage Finch who argued in the Parliamentary proceedings of 1610 that reacted to the ruling in Bate’s case, that extraordinary powers were not, as James held, arcana imperii, but rational permissions by law rather than outside law.115 No prerogative could allow a right to tax outside of the basic common law ideas enshrined in Magna Carta and other legal sources. For others, however, the problem of relying on judicial scrutiny (which had already proved unreliable) required its tempering by popular consent and hence a conception of King-in-parliament. Intervention in cases of social ills or cases of social necessity had become more and more evident via references to ‘State necessity’ or ‘the state of the Commonwealth’. Judicial

113 Ibid. II, 389. 114 See Bacon, 1857–1874: III, 371–4. 115 Proceedings in Parliament, 1610; see Foster, 1966: ii, 234–5; see crucially Oakley, 1968: 323–46.

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adjudication in such instances was, however, considered dangerous and contrary to the ‘ancient common law’, as conceived by Coke. It is of great interest that during this period it became more and more pronounced that Chancery, for instance, in particular was enabled by royal prerogative (in its ‘ministerial capacity’ following on the King’s power) to exercise its inherent interventionist power as if the King was present. Plowden’s writings had made the more general point (that was to become a central characteristic of modern judicial interpretation on the basis of ‘intention’ arguments) that: ‘in order to form a right judgment when the letter of a statute is restrained and when enlarged by equity, it is a good way, when you peruse a statute . . . to give yourself such an answer as you imagine (the law-maker) would have done, if he had been present’.116 This notion of as-if presence could be viewed, at least in a theoretical sense, as an attempt to elucidate the problem of the relation between temporal and spiritual presence through an internal juristic sense. Plowden referred to judicial construction and later Coke would apply this to parliamentary proceedings (where Parliament would stand as the ‘highest court’) to remedy mischief and defect that the common law did not provide, pro bono publico. The as-if presence of the legislator could, for Coke, bind the King (even if he were not mentioned) as well as the clergy. Collective, communal well-being ‘required’ for the presence of the King, instrumentally in jurisdictio in which he was not strictly speaking actually present. The advancing of arguments for the omni competence of common law, whereby judicial and parliamentary jurisdictio enabled an as-if presence of the law giver, did not eradicate parallel arguments for the extraordinary competence and actual interposition or presence of the King to act against ‘free public consent’, once more, for the purposes of the pro bono publico. After all, references to the public good were able to generate exceptions by reference to the very same notion that deterred them from doing so. The freedom and well-being of the public was placed at the same time as a ground (the vague notion of the public good as such) that allowed for its subjection to exceptional measures following the ‘sacred’ will of the King.117 The same could be said as to the precise issue that was at stake in Bate’s case: the absolute propriety of ‘Englishmen’ as their very ‘ancient inheritance’. Absolute propriety was not, thus, necessarily concomitant of a commitment to the public good and the public could only glorify the properness of the absolute power, that is, produce it as such. That an absolute propriety or good was held to be the most ancient inheritance of ‘Englishmen’ shows

116 2 Plowden, 467, 75 ER 699 117 The notion of a sacral monarchy was further reinforced by a series of cultural practices known as the Royal Touch. Both Charles II and his brother James II reinvigorated the ceremony of ‘touching’ as miraculous acts; see Shaw, 2006.

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the tying of the absolute character of power to the ground of ordinary law, as a Law of law originating from time immemorial in an anti-genealogical sense. The common lawyers, residing in courts and in Parliament, would be able to argue that the law of the King’s extraordinary competence (as with regard, for instance, to the Martial law in 1628) was one thing, while the rules as to how it is to be exercised was another matter. An extraordinary or ‘miraculous’ event on the basis of reason of State entailed a non-legal power, a non-legal presencing or exercise of power, but such ‘anomalies’ were to be juridicalized through the abstraction of the ‘neutral’ (and yet bipartite function) of pro bono publico, since anything that acts for the good of the public was seen as ipso facto legal. The transition from the regal to the legal in terms of power was complex and tensional, but the employment of the new ‘public’ or ‘statist’ abstractions such as reasons of State or of the public good allowed both sides (King and Parliament) to accommodate their arguments and actions therein. The implications of the sanctity of the public good, and of private property for that matter in particular, enabled both the voiding of royal interposition (at least in theory) and voiding of ordinary laws (through the use of prerogative powers). The law (common law) had generally adopted the extraordinary spheres of both natural law and the royal arcanum within the sphere of law and as such begun to claim the right to lay down the procedures according to which they could both be exercised. Oliver St John’s argument in R v Hampden (The Ship-Money case) in 1637–38, where the King had claimed a right to levy money to respond to a State emergency, asserted that a State emergency required a defence that while discerned rightly by the extraordinary sphere of the royal prerogative, it was so necessary that it must be seen as legal through a juristic analogy.118 This position shared Coke’s belief that the common law had the ‘capacity’ (potentia) to answer any question of law and justice. The transcendent prerogative necessity could be viewed now as immanent within the Courts of Justice, at least so far as the interpretation of its exercise was concerned. Legislation and execution were to become blurred and the transcendent character of the royal prerogative was widely beginning to be considered as an abstraction, and indeed still a useful one for common law. While the events of the crucial summer months of 1642 that led to the issuing of the Ordinance without royal consent to raise an army in order to resist the King, what was previously considered as a political fiction (as royal rhetoric) was to be seen as a legal fiction, through which anything could be held as necessary-and-legal by the very same principle of necessity (separating necessity between absolute necessity and efficient necessity). The ‘common good’ or the community made all law that is against common law illegal as much as it enabled the

118 See Howell, 1816–26: iii, 858; see also Oakley, 1968.

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declaration that all law that is common law is legal by necessity. The community was innate to the common law, so much that it formed the ground of the prerogative and at the same time it also grounded any resistance to it (in the rendering of such royal power as ‘void in law’, if the commonwealth is not to be benefited by it). The Constitutionalist revolutions had ‘liberated’ the English common law and community from the clergy and the monarch, by locating the English mind in the same place that marked its subjection (the absolute space of an original power that arises from time immemorial). Temporal rationality had succeeded in freeing the imagination by maintaining, in the juridical-political spirit, the grip of the system upon the English mind that was marked earlier by its separation from its figuration of the canonist Imago Dei of transcendental ‘absolute’ power. The dispensing power, that is, the power to allow exceptions to the law and permit the illegal had been shown to be a dangerous power. James had utilized the power of dispensation freely to defy the law as well as the Lords and Parliament. The revolution depended on the abolition of the royal non obstante, a power that Henry III had borrowed from the Papacy. The dispensing power was not unlimited and could not be used against the common law or the public weal. But the Crown could pardon murder or permit the worship of God according to rites contrary to the Church. The judges too had, by and large, granted approval thus far to the use of the prerogative. William and Mary declared that unless Parliament consented, they would not exercise the prerogatives of both suspending (a public power) and dispensing (a private power) powers. The debate took centre stage in the disagreement between the Commons and the Lords over abolishing the dispensing power. Eventually the Lords agreed to the abolition, offering two reservations: first, the abolition would not affect preceding grants non obstante made before 1689 and second grants non obstante would be held void unless specifically provided for by statute. As no such statute was passed at the time, the dispensing power was held to be abolished.119 What was not ‘abolished’, however, was the formal, structural, notion of divine right, which was a widespread notion and more than a mere ecclesiastical dogma.120 In the framing of the Bill of Rights in 1689 a clause was inserted which reads as follows: The said lords spiritual and temporal and commons, seriously [consider] how it hath pleased Almighty God, in His marvellous providence and merciful goodness to this nation, to provide and preserve their said majesties’ royal persons most happily to reign over us upon the throne of

119 See Edie, 1977: 434–50. 120 See Oakley, 1997.

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their ancestors. . . . Whereas it has pleas’d Almighty God, in his great mercy to this Kingdom, to vouchsafe us a miraculous deliverance from popery and arbitrary power; . . . our preservation is due, next under God, to the resolution and conduct of his highness the Prince of Orange, whom God hath chosen to be the glorious instrument of such an inestimable happiness to us and our posterity.121 The divine right of Kings was now replaced by the divine right of providence and represented the transcendent (absolute and yet impotent) force that was, however, ever-active in exceptional circumstances as immanent to the Bill of Rights.

Reorientation It has been suggested that in the dogmatic discourse on the Eucharist, which Goodrich utilizes to investigate the foundation of common law, lies the mythologeme of a dual presence, two bodies or two laws. What was traced through the theologies of the Eucharist was a link to the doctrine of two bodies that Kantorowicz elaborated. Through an engagement with Kantorowicz’s genealogy of the ‘two bodies’ doctrine up to the sixteenth and seventeenth centuries, it has been argued that the structures of ‘Presencepresence’, ‘Law-law’, ‘Power-power’ are key to the understanding of the dogmatic range of causes and effects of the doctrinal foundations of power and law. Further, a common presupposition of such bipolarity lies in the dogmatic distinction between an absolute and ordinary power (with reference to God’s omnipotence; and later, crucially, with reference to the canonist interpretation). Overall, what has been suggested is that the problem of the definition of the model of power ‘in general’ in the English common law tradition and polity, but also beyond, is characterized by the functional relation or bond that is instituted and glorified through discourses, ceremonies and discursive or ecclesiastical sermons and liturgies, between two presences, two laws, two bodies or two powers. The relation itself produces a pseudo-partition between a transcendent power (sovereign essence) and an immanent power (government or administration), which form a dogmatic pseudo-bipolarity that legislates nothing other than itself, through the glorification of the representation of the presupposed essential source of power and the forbidding of the unbinding of its immemorial and glorious knot with it. In this sense with regard to law it can be said that its positive political-theology ever-presupposes, problematically, a functional relation to its negative theology.

121 Stephenson and Marcham, 1937: 603.

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‘Political theology’ within the Western Christian tradition presupposes two intertwined planes: on the one hand, sovereignty or Law (transcendental essence) and on the other hand, government or ordinary law (or immanent oikonomia). Foundational and discursive emphasis is always placed, more or less exclusively, on the ‘fundamental’ questions of sovereignty’s essence, the ‘Law of law’ and ‘Power of power’. The key problem, however, with such an approach, which could be termed the conventional (‘political theology’) approach to law as the transmission of the nature or origin of power and law, is that it results in irresolvable agenealogical enigmas (such as the question of the dual status of the King being above and under the law; the People as being torn between a multitude and a representative body in parliament and so forth) that can only ever repeat the foundational dogmatic negativity upon which they are grounded. The next chapter places emphasis on the oikonomic paradigm of government or ordinary law in order to suggest a wider and more crucial problem at stake in such discourses: that is, not only their misplaced emphasis on sovereignty rather than on government, but also their incessant doctrinal reproduction of the presupposed negative theology of sovereign power and law.

Chapter 2

From transcendental sovereignty to neo-governmentality: the oikonomia of power

Introductory note Trying to understand how the neo-governmental function of law, politics, the economy, the media and government can be described today is no easy task. The old-European model of law and of politics as an immobile, sovereign, transcendence-suffused grounding of social and political life has been effectively replaced by a contingency-driven, crisis-managing form of governing as managerialism or administration. It is often said today that economic networks have absorbed the old-European governmental function of law and of politics, but little is understood of the manner and effects of such an absorption. Another characteristic of what can be diagnosed as a part of the contemporary situation is the increasing impossibility of locating anyone who may be responsible for ‘decisions’ that are made ‘in the name of the law’, of ‘public order’ and ‘security’, ‘social integration’ and so forth. The old-European model of sovereign decisionmaking appears more and more challenged if not replaced by an administrative apparatus that does not ‘decide’, but instead ‘manages’ situations, emergencies, ‘events’. It is crucial to understand how this absorption functions, how the dominant managerial or administrative model of neogovernmental power and law operates in order to produce a governing non-power (in, at least, the traditional sense of the term authority: wherein one commits an act for which one remains accountable). As it has been argued in the previous chapter, this formation of a governing nonpower is not a merely recent phenomenon, but has its roots in the scholastic distinction between an absolute and an ordinary power. In this chapter it is argued, with Agamben, that in fact the roots of this governing non-power model can be traced at least as far as the early Christianity of the second century. Indeed, it shall be argued that the issuing of imperatives that earlier were transcendence-suffused (even if their authors and effects were covertly ordinary and immanent), today have collapsed in the wake of a widespread delegitimization of so-called legitimate power, where the old powers are

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replaced by virtual, yet effective, imperatives without author or imperator.1 Managerialism or administration, what Agamben calls oikonomia, has no need for a political center of its power, even if its claims to ultimate principles and transcendent foundations remain, so that contemporary governmentality finds its core form in an ahistoric, agenealogical, performance-related paradigm that is directly opposed to experience and to facts. In the pressing presence of looming catastrophes, terrorist threats arising from ‘everywhere’, economic crises of immense proportions, epidemics, intense urban crime waves, and so forth, neo-governmental power does not require an epistemic or authorial centre in order to issue effective imperatives and measures. The model of currently dominant governing non-power is, then, one of continuously adaptive care for the tackling and the prevention of crises. Crisisgovernmentality renders crises its own condition of possibility or virtual core that reproduces crisis after crisis to the point of becoming, not a management of the exception, but the crisis-suffused norm. Such a ‘power’ has no need to legitimate itself in the style of old-European power (in the principle of sovereignty, for instance) but instead can remain marginal, outlawed even, invisible, anonymous and yet continuously self-producing and effective. Current governing non-power acts in the name of a performance-related caring of the household (oikos) in the presence of precarious circumstances and emergencies. From the old-European model of power-equipped sovereign government to the current post-sovereign model of governing non-power, that is powerless, continuously mobile and adaptive, self-producing (undisturbed by politics) and the most effective governmentality that has ever taken effect in Western societies. Agamben’s historical and philosophical argument entails the showing of a bipolar system formed between an image-suffused, transcendence (that maintains its foundation and theatrical visibility in God, Nature, the Pope, the King, the Demos and so forth) and a virtual, faceless, powerless form of immanent management or oikonomia that is nonetheless effective and inherently adaptive. For the governmentality of sovereign Law of law or Power of power, that can maintain its centre even during the extreme or unusual moments of exceptional measures or rules, the schema of governmentality becomes one of anarchic (without foundation) neo-governmentality, which renders exceptionality so familiar that it becomes normality. The bipolarity of the system in question is not to be disregarded, in Agamben’s analysis, even if the oikonomic polarity has absorbed, today, the polarity of imagesuffused political representation and theatricality. The two poles are characterized instead by an irreconcilable scission, as Agamben suggests, ultimately between being and action. No common centre or conciliation between these two poles appears possible. Instead the only gesture that remains effective

1 See Schütz, 2009.

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against their operation is the mutual exposure of their subtle, but widely effective, coordination. It is particularly significant, then, that Agamben has undertaken recently to elucidate the long genealogy of this bipolar system all the way to the second century. It is perhaps useful to summarize Agamben’s exposition before a more detailed analysis of its key parts is elaborated upon in this chapter. Despite the fashionable separation or banal conjunction theses of law and religion, Agamben’s main thesis is that law and religion are connected. But their manner of connection is anything but simple. This connection can be better elucidated through the particular schema of monotheism in Western Christianity that is characteristically bipolar, between the ‘Old Testament’ creator god (the demiourgos) and the ‘New Statement’ trusteeGod, the Christological God who governs in the name of God, the Father, under the sign of an agent, the Son, who is in charge of care-taking of the oikos. A Western-Christian God who is at once one and three, triune. In this sense the particularly ‘Western’ episode of Christianity is marked by the Christ-God who has undertaken to act, as Schütz writes: not according to the sovereign whim or privilege wielded by a master of the universe, but humbly in the sign of the minus of ministry, the limited means of government and governmental care. God cares for the world, as a supplement to creation, and as the model of human government that has been followed by governmental rationality during the entire WesternChristian cum Western-postchristian episode. Meantime, the minus of ministry has become nameless, secular, and globalized. The model – whose hidden centres today are crisis-management, acting under necessity, taking urgent measures, acquiescing to collateral damage, etc. – has been born as a theological invention or innovation.2 Schütz continues and elucidates the problem of the Christian invention of what is today the late form of neo-governmentality by pointing out that: The way that leads from the created creation to the manageable creation is everything else rather than unquestionable. Genesis tells us that after accomplishing the creation, God, far from now managing it, rests. There is no question of an oikonomos responding to the requirements of its maintenance, servicing, and protection, no mention that the creation is a household with a future of exposure to dangers and risks on a permanent basis, thus in constant need of further attention and protection, government, control, providence. All the creation needs is its creatures to inhabit it. The household view is Christian only, and secondly linked to the

2 Unpublished notes [available from the author].

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increase of the Church’s social responsibilities, when the governmental care for appropriate ways of dealing with the creation’s precarious predicatedness upon an unstable and risk-suffused outside becomes the overriding preoccupation. Yet, all of this represents, once again, only one pole. If governing requires incomparably more power than any existing authority could possess, give, or distribute, if in other words, ‘le roi règne, mais il ne gouverne pas’, then the real issue we are confronted with is clearly that of the other side of government. What becomes of the power of creation once the creation has fallen into the caring and disposing hands of its ‘management’? This is the problem that Agamben undertakes to explore in his Il Regno e la Gloria: Per una genealogia teologica dell’economia e del governo (The Kingdom and the Glory: A Theological Genealogy of Economy and Government).3 Current neo-governmentality appears as the most advanced form of WesternChristian oikonomia and yet in a way that is extremely proximate to the way in which the splendour of such neo-governmental power was attributed earlier to God and to monarchic rulers. Yet, the most decisive argument in Agamben’s analysis is that it is through the mutual exposure of the coordination between the two poles of splendour or glory and oikonomic action or administration that the Western-machine of power can be exposed and assaulted. This schema of bipolarity empowers the latest, and arguably most effective form of a reigning power, which, however, does not govern and according to which imperatives without author or imperator can be highly effective despite the absence of authentic justification or legitimation. Such oikonomic neo-governmentality operates externally to what was known as the image-suffused politics of the long-modernity, without a single bond connecting it to government, despite its adapted and continuous glorification and appearance in the media. As Schütz writes, crucially, the consequences of this deformed power are most expansive: Beyond the paradoxical pas de deux of an oikonomic governance enforcing its decrees in the name of its power’s deficiency, and a glorious sovereignty deprived of means of making any ‘difference that would make a difference’ (information, according to Bateson’s famous definition), the way is free to the conditio post-politica of a subjectivity without subject exposed to a power itself subjected to self-denial.4 Excursus: ‘Political theology’ has over time become a strategic composite term that refers to the relationship between religion and politics or authority

3 2007b. 4 Ibid.

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and order. The term’s range and varieties of use form a vague area of reference that is mostly associated, today, with debates as to secularization and democratic theories of sovereignty. The two terms ‘politics’ and ‘theology’ in this composite form can be used in a number of different ways to suggest seemingly different modalities, a conjunction, separation, interrelation, subordination, justification and dependence. In the next chapter the particular use of the term ‘political theology’ will be examined through a key episode in its employment in modern Germany. In this chapter the term political theology will be approached from a different angle through the crucial realignment, or indeed deposition, of the conventional elevation of the term as argued in Giorgio Agamben’s The Kingdom and the Glory.4 It is conventionally perceived, particularly in the ambit of political and legal theory, that from Christian theology a single political paradigm is inherited that founds in the unity of God, and in its image, the transcendence of sovereign power. While this is the conventional presumption, in Agamben’s understanding the term ‘political theology’ remains a misguided and monocular paradigm that forms only one side of a bipolar structure of power that is, in fact, inherited from Christianity. Thus, one central thesis of The Kingdom and the Glory is that there are two ‘political’ paradigms that are derived from Christian theology: a so-called political theology, which founds the transcendence of sovereign power in the unity of God; and an economic theology that establishes the idea of an oikonomia as an immanent, economic, domestic, non-political administrative order of governance. From the first paradigm derives Western political philosophy and theories of sovereignty; while from the second paradigm, derives modern biopolitics (the politics that places existence, life ‘as such’, at its centre, which is examined in more detail in Chapter 4) and the modern triumph of the managerial economy and of ‘politics’ as managerial-government over all aspects of social life. A secondary and related thesis in The Kingdom and the Glory is that these two paradigms are separate and antinomian to each other and yet remain functionally related; and it is only through an understanding of the centrality of the second paradigm of oikonomia that the bipolar Christian theological inheritance of philosophy and politics (and law) can be properly appreciated. According to Agamben it is this second paradigm, oikonomia, which has been ignored by both historians of ideas, political theorists and the modern theologians, that appears as something of a mystery worthy of interrogation as such. If the theological-political problem has always been that of how to reconcile the Kingdom of God with the Earthly Kingdom, today, when the

5 2007b; This book forms Vol. II, II of the Homo Sacer project series. An attempt at a fuller appreciation of this project’s ambit must wait for the completion of the work. Here, only a preliminary outline and analysis can be attempted.

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Kingdom of God has been allegedly denigrated in importance through the so-called ‘secularized’ model of self-government, the problem of a bipolar inheritance, as providing from the start both a model of self-governance (or oikonomia) and its functional relation to a transcendental righteousness remains unthought. If, further, this double inheritance is oikonomic in its structure from the start, then the paradox of government lies in how it always-already separates two powers (a transcendental kingdom and an administrative kingdom) and yet keeps them functionally oikonomically, rather than politically- related. Such an oikonomia is not paradoxical, but merely doxical (and still liturgically prevalent and effective in the contemporary era), because it posits a ‘God’ or a transcendentally suffused power that appears but cannot be used and which governs the world as if it were selfgoverned. Only if both poles (and their functional relation) that compose the bipolar machine of Western governance are mutually exposed as such can the problem of neo-governmentality be properly elucidated.

A genealogy of neo-governmentality: the paradigm of oikonomia For early Christianity the term oikonomia (not to be confused with the concept of modern economy) did not refer to eschatological salvation or to a directly theological or political meaning. The starting point in Agamben’s analysis of the paradigm of oikonomia is Aristotle’s account of oikonomia as techne oikonomike (economic art), which signifies the administration of the oikos (the household) and which, as such, is a non-political paradigm. Aristotle distinguishes between oikonomia and politics in the same way that a house (oikos) is distinguished from a polis (city).6 In Aristotle’s treatise On Politics the difference is repeated as one of quality between, on the one hand, the politician and the King and, on the other hand, the oikonomos and the despotes who manage the household and the family. As Aristotle distinguishes, the oikos involved three groups of relations: (1) despotic relations between the father and slaves; (2) paternal relations between parents and

6 The book Oeconomicus of Aristotle or pseudo-Aristotle is known only through a medieval Latin translation and shares considerable parallels with Xenophon’s work of the same title. Diogenes Laertius lists in his Aristotelian catalogue a Peri oikonomias, a (v.22). A recent survey of Aristotle’s so-called economic thought, which however notes the difficulty of understanding this term in relation to its modern use, is helpful to an extent: Meikle, 1995. An interesting comparison between Aristotle’s conception of the oikos and the polis and that of Arius Didymus is undertaken by Nagle, 2006. I found a detailed list of indispensable sources on the uses of the term oikonomia in ancient Greek and Roman discourse, as well as in the Church Fathers, is provided in Reumann’s dissertation unique to my knowledge in the Englishspeaking world, The Use of Oikonomia and related terms in Greek Sources to about A.D.100, as a Background for Patristic Applications, 1957, University of Pennsylvania (Unpublished; copy available from the author).

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children; and (3) marital relations between husband and wife.7 What unites these three types of relation under the term oikonomia is a paradigm that can be defined, Agamben suggests, as economic or managerial (in the sense of administrative management) and, as such, as a non-epistemic and nonpolitical paradigm. Aristotle notes that this economic or managerial paradigm is not an episteme, but denotes a certain way of being, which implies decisions and dispositions that confront specific problems each time and that safeguard the functional order (taxis) of the different parts of the oikos.8 Xenophon, Agamben reminds us, defines this oikonomic role as one of episkepsis (from which we derive episkopos and it is this term that was used in Greek to signify a bishop), that is, as one of control: a functional organization, an act of management.9 It is this original sense of the term that the Stoics will philosophize as the character of the idea of a power that internally governs everything (te¯ s to¯ n holo¯ n oikonomias).10 Oikonomos in ancient usage signifies the one who manages the household and oikonomia means household management.11 The suffix – nomia was widely used in ancient Greek times to signify management, apportionment and supervision. It is interesting for the purposes of this analysis that one use of the term oikonomia was related to the Greek family of words dioikein, dioikesis, sharing the same root (oikos), meaning housekeeping in the sense of the administration of the city or its control. In addition, the term was used to signify one of the qualities necessary for the good management of the army as exercised by a general.12 In Xenophon’s account of oikonomia in his Oeconomicus the term is described as an episteme or techne of household management with an emphasis on order (taxis).13 While this characterization of oikonomia as an episteme may seem to contradict Aristotle’s non-epistemic character of the term, it is perhaps only considered so by Xenophon to the extent that the term oikonomia refers (also) to the more general activities of management (as a skill) that could be seen as shared in the fields of the household, the army and the polis. In this sense oikonomia is always praxiological and non-epistemic referring to particular activities. It is interesting to note that by implication Plato conceives of oikonomia (in the sense of household management) in his Laws as a matter upon which the lawgiver should not interfere.14 When Plato later refers to oikonomia in relation to political

7 Politics, 1253b, 1259a–b in Aristotle, 1887/2000. 8 Ibid: 1255b. 9 Xenophon, Oeconomicus, 8 23 and 11–15, as quoted in Agamben, 2007b: 32. See Xenophon, 1923. 10 Chrysipus, fr.937, II, 269 in Dufour, 2004; as quoted in Agamben, 2007b: 33. 11 Hesychii Alexandrini, in Schmidt, 1863: 1112; see also Boeckh, 1892: 110 and 142. 12 As in Xenophon’s Memorabilia, 2.10.4 in Xenophon, 1923. 13 In Oeconomicus, 1.1–2; see Xenophon, 1923. 14 See Lysias, 209d, in Plato 1997b and Laws, 3.6940 and 5.747a and 7.808b in Plato, 1997a.

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matters of statesmanship and kingship he uses the term to refer to an enlarged household. Large-scale managers like kings or politicians are seen to employ the same skills and activities as required for the management of a household. Plato refers to justice and temperance in this vein as a common art between politicians and house managers.15 It is worth remembering that for Aristotle oikonomia is one of the three types of phronesis (the other two being self-reflection or thought and politics) dealing with particular instances each time in relation to the family and the household and it is in this sense that Aristotle speaks of oikonomikon dikaion (household justice).16 Aristotle draws attention to the qualitative differences between the politician and the household manager by arguing that the defining element of the household government is a monarchy (governance by a single ruler), whereas in the polis the decisive element is one of poliarchia, since there men are free and equal.17 Oikonomia is distinguished from mere financial matters in the sense in which economy is understood in late modern times: household management is not concerned with things like the mere acquisition of funds or the art of making money, but rather and only with the use of means in a pragmatic sense towards the end of living well.18 This does not stop Aristotle from using the term oikonomia in different ways including, in his characterization of absolute monarchy, as oikonomike basileia.19 Or, equally, with reference to nature in general acting as an oikonomos, arranging things and managing the world.20 It is with the Stoics that the terms household and polis are at times seen as concentric circles. In Chrysippus a household is a city-state compressed into small dimensions and oikonomia is a sort of epitome of state government, that is, of the public household.21 Yet, again, it is worth noting that the Stoic conception refers to management as a specific virtue of the economic kind, useful as it may be in public administration and not in the sphere of politics. When later the term oikonomia was more frequently used in the sphere of the political, it would refer to details of administration or in the wider sense to divine government as distinct from statesmanship and legislation.22 This understanding can also be illustrated in the metaphorical use of the term oikonomia in rhetoric. Rhetoric was conceived as composed of two

15 16 17 18 19 20 21 22

See Republic, 285e–259c and The Lovers, 138c in Plato, 1997c, 1997e. Nicomachean Ethics, 1.1.3 (1094a 9) and 5.6.9 (1134b 16–17) in Aristotle, 1999. Politics, 1.2.21 (1255b 19–21) in Aristotle, 1999. Politics, 1.3.9 (1256b 38–40) in Aristotle, 1999. Ibid: 3.10.2 (1285b 32–4). De Generatione Animalibus 2.6.42 (744b) in Aristotle, 1992. Attributed to Chrysippus in Philo, De Josepho 38, SVF 3, 80, 13–16, frag.323 in Philo, 1935. See Polybius, 4.67.9 in Polybius, 1922. Here, perhaps, one can note one of the earliest attempts to speak of oikonomia in relation to a philosophy of history closely linked to the uses made of the term in this sense in the first century.

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parts: one of content based on a particular case; and one of form, which the orator contributed himself. In Aristotle’s On Rhetoric a threefold classification is elaborated: (1) euresis or invention of content; (2) lexis or expression and presentation; and (3) taxis or arrangement of the orator’s speech (using oikonomia at times as a substitute for taxis).23 Quintilian makes dispositio or taxis in the sense of oikonomia, following Hermagoras, one of the now standard fivefold classifications of rhetoric, and devotes the entire seventh book of his Institutio oratoria to dispositio.24 The oikonomic (oeconomica) arrangement of material in the rhetorical use of the term refers always to the impossibility of laying down universal rules to apply to all cases and, as such, oikonomia refers to the particular arrangement required in particular cases at hand each time (dispositionem perumque utilitatem mutari). Quintilian at one point even uses the analogy that ‘this gift of arrangement (oeconomica) is to oratory what generalship is to war’.25 It is interesting to note also that in the Stoic use of the term in relation to rhetoric, oikonomia implies, in addition to the standard understanding of order or taxis in narrative arrangement, the deliberate deviation from the accustomed natural order in an oration and, hence, begins to signify an artificial and strategic order through which the oration is strengthened by concealing its weaker arguments with a stronger presentation.26 In Dionysius of Halicarnassus and his successors the term oikonomia comes to be partly distinguished from taxis or ordo in order to signify deviation from the natural order of things for the sake of expediency in oration.27 Weak in terms of legality, but strong in terms of justice (dikaion) is the description of this use by Demosthenes.28 In parallel, through Agamben’s attentive reading of the Pauline Letters, it can be suggested that the use of the term in Paul is performed using administrative (oikonomic) vocabulary. The passage from the first letter to the Corinthians that is central to this inquiry is as follows: ‘For if I preach (ευαγγελζωµαι) the gospel, I have nothing to glory of: for necessity is laid upon me; for woe is unto me, if I preach not the gospel. [17] For if I do this of mine own will, I have a reward: but if not of mine own will, I have a stewardship entrusted to me (ο κονοµαν πεπστευµαι).’29 The oikonomia that is entrusted to Paul by God, is entrusted as a fiduciary task (pistis), a matter of faith, where Paul acts as apostolos (apostle) and as oikonomos

23 3.13–19 in Aristotle, 1991. The threefold distinction is enlarged in Quintilian and Cicero, among others, to include another two terms later on: hypocrisis or actio as in delivery and mneme or memoria as in memory. 24 Institutio Oratoria 7. Pr.2 in Quintilian (Quintilianus), 1920. 25 Ibid: 7.10.13–16. 26 Volkmann, 1987: 29. 27 See Saintsbury, 1900–04: 1, 90. 28 On the Crown, part 1, 17 in Demosthenes, 2001. 29 I Corinthians, 9, 16–17.

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(administrator). The oikonomia in question is not an act of salvation, but an activity that concerns the act of faith and not the mind or the divine will.30 Another passage in Paul needs to be reread in this light: ‘[3] As I besought thee to abide still at Ephesus, when I went into Macedonia, that thou mightest charge some that they teach no other doctrine, [4] Neither give heed to fables and endless genealogies, which minister questions, rather than Godly edifying which is in faith: so do ( ο κονοµαν Θεο τν ν πστει).’31 But it is a third passage that Agamben identifies at this point as most crucial to the Pauline oikonomic understanding: [24] Now I rejoice in my sufferings for your sake, and fill up on my part that which is lacking of the afflictions of Christ in my flesh for his body’s sake, which is the assembly; [25] Of which I was made a servant, according to the stewardship [ο κονοµαν] of God which was given me toward you, to fulfil the word of God, [26] The mystery which has been hidden for ages and generations. But now it has been revealed to his saints.32 Oikonomia, here, signifies an administrative activity (an oikonomia of the mystery).33 In the letter to the Ephesians Paul refers to oikonomia as the oikonomia of the mystery and in his letter to the Colossians he uses the same expression to refer to the oikonomia of God.34 In both uses of the term the sense of it is one of administration. The term oikonomia refers, in Paul, according to Agamben, to the members of the messianic community exclusively through the use of an administrative vocabulary: doulos or slave; hype¯ re¯ te¯ s, diakonos or servant; oikonomos or administrator. Christ, in a similar vain, is referred to as Kyrios (dominus) in the sense in which reference is made to the master of a household. According to Agamben, even when the terms politeyomai and sympolites (that refer to a political institution) are used in Paul, they are used in a non-political sense.35 The terms of the Pauline ekklesia (Church or community) are economic and non-political, and in this sense the Christians are the first men who are integrally economic. This oikonomic terminology is not, Agamben writes, a Pauline invention, but suggests indeed the semantic mutation that was taking place during, but also even before, Paul’s time. Justinian will refer to Christ as the Jewish Messiah with reference to an ‘oikonomia of passions’, while Theophilus of Antiochy will refer to the

30 31 32 33 34 35

Agamben, 2007b: 36. Paul, Letter to Timothy, I, 3–4, as quoted in Agamben, 2007b: 36. Colossians, I, 24–26. Agamben refers also to Ephesians I, 9–10. Ephesians 3,9 and Colossians, I, 25. See Agamben, 2007b: 38.

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Emperor not as a God, but as an ‘hypo theou tetagmenos’ (under God) or ‘para theou oikonomian pepisteyetai (according to divine oikonomia)’.36 Yet the fact that in Paul the ekklesia or community of the Christians is described as an oikos theou (a divine household) and God is referred to as Theos oikodomos (the builder of the household) using oikonomic terms and not those of politics is a crucial fact, the implications of which for the occidental political tradition remain to be interrogated.37 Oikonomia Theou refers specifically to the activity of faith in God as an oikonomia of mystery. It is common opinion, Agamben writes, that the early construction of the term oikonomia in Hippolytus and Tertullian ceases to be an analogical extension of a domestic vocabulary within the religious sphere and begins to be used as a technical term that designates the Trinitarian articulation of the divine life. Yet, even in this sense, such technical use is not clearly a new signification of the term. The technical use of the term arises out of two main influences: on the one hand, the Greek and Latin use of the term as ‘dispensation’ and, on the other, the Pauline use of the term as an ‘economy of mystery’. What takes place in this technical use of the term oikonomia is a strategic reversal (by Hippolytus and Tertullian) of the Pauline phrase ‘economy of mystery’ into ‘mystery of economy’, which, without offering a new definition of the term oikonomia, invests in the term a new strategic sense.38 The early articulation of the Trinitarian doctrine then, before its theological and philosophical elaboration in the fourth and fifth centuries, was performed in oikonomic terms (and not in metaphysical-teleological terms) and signified ad hoc management, rather than a ‘political theology’. The theological debate that ensues centres between two distinct elements in the meaning of oikonomia: on the one hand, the sense of the term that refers to the incarnation of Christ and the revelation of God in time and, on the other hand, the use of the term that concerns the procession of the three persons as internal to divinity. In the second century both refer to a divine activity of creation and government, and form two senses of one term: oikonomia.39 The reversal of the Pauline economy of mystery into a mystery of economy comes to indicate the use of the term oikonomia to describe the relation between Father and Son. In the most significant text of Trinitarian theology in the second century, Hippolytus’ Contra Noetum, God is seen as a monadic dynamis (power, potentia) who entails also a triplicate oikonomia. Hippolytus attempts to conciliate the unity of God, in God, with the Trinity (a distinction

36 Ibid: 41 and 42. 37 Ibid: 39. Agamben devotes a part of The Kingdom and the Glory to the investigation of this crucial fact and restricts his analysis to the formative periods of the second and third centuries (with some references to the Cappadocians and the Byzantine theologians in Chapter Three). 38 Agamben, 2007b: 49–50. 39 Ibid: 50–1.

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that was integrally Stoic in conception). Hippolytus will refer to the logos of the Father as the mystery of oikonomia, where the logos is incarnate in the Son and the Son in the logos of the Father, in a manner akin to Paul’s reference to the term in describing the revelation of the mystery of the divine will and of the divine word. The reversal of the economy of mystery into the mystery of economy attains a new relevance at this point: it is not, now, an economy of mystery, that is, an activity that reveals the divine mystery, but instead the very pragmateia, the very ad hoc praxis as such is mysterious.40 The aim of this reversal is to attain a harmony between the unity of God and the Trinitarian personae. In Hippolytus the Pauline oikonomia of the mystery is reversed in the syntagma oikonomias sacramentum referring to consecration and mystery.41 When Tertullian, in his anti-philosophical interpretation, speaks of a unity that is articulated in various degrees, he is, nonetheless, utilizing a Stoic idea of distinguishing between ousia and praxis, being and action. The Trinitarian doctrine was, in this sense, an attempt to save Christianity from the accusation that it was falling into the polytheistic and pagan routines of earlier times and yet, partly, the very same doctrine was seen as requiring such complex understanding and sophisticated powers that many Christians would feel themselves to be tritheist. Tertullian was aware of this danger and insisted that the Trinitarian doctrine is the only true faith of the gospel: God so willed to renew his covenant with humanity, in order that he might be believed as one in a new way, through the son and the spirit (‘un nove unus crederetur per filium et spiritum’), so that now God might be known directly, in his proper names and persons, who in times past was not plainly understood, although declared through the son and the spirit.42 The Godhead is that of the Father revealed in and by the other personae, united with their originary first principle.43 Tertullian suggests that the oikonomia of salvation distributes unity into trinity so that the three personae are one in status (quality), substantia (substance) and potestas (power), but different in terms of gradus (sequence), forma (aspect) and species (manifestation).44 This, for Tertullian, is precisely the mystery of oikonomia, the internal disposition of the Godhead. The three are neither attributes of the Godhead nor mere substantives of it. His use of the Stoics in order to elucidate his own interpretation is significant in this sense: Zeno spoke of the logos 40 41 42 43 44

Ibid: 53. Ibid: 54. Tertullian, Against Praxeas. 31 in Tertullian, 1851–53. Ibid: 18.5, 19.5, 22.11. Ibid: 2.4.

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as word, reason and God, while the Christian understanding proposes similarly that to the Godhead as the spirit that permeates also belongs the reason which disposes and the power which perfects God’s oikonomia or work.45 Tertullian writes: ‘The Trinity derives from the father by intermingled and connected degrees in no way threatening the monarchy but protecting the quality of the economy.’46 The Trinity itself is a dispensatio, an oikonomia as an internal disposition of the divine substance. It does not threaten unity, but administers it.47 God’s oikonomia is triune: ‘God used the plural because there was already attached to him the son, a second person, his word, and also a third person, the spirit in the word.’48 It is through the Son that God is one (redactum . . . in unionem). God administers and delegates authority; yet each member of the Trinity possesses without limit the family property, the oikonomia. The Trinity in this sense is omnipotent. The inner life of the divine persona comes to signify not a representative person, but a distinct individual existence, as an element of the inner divine life. The Trinity is not conceived, overall, as an articulation of a divine essence, but as its praxis as such. The distinction between Father and Son takes on a further distinction between spirit and flesh in Christological discourse. In the dispute with the Monarchians, who claimed that the word becomes flesh by transfiguration and that this leads to a third substance that is neither flesh nor word and which functions as an amalgam, Tertullian writes: For, convicted on all sides by the distinctness of Father and Son, which we say is ordained without disturbing the permanence of the union as of the sun and the beam and of the spring and the river, they attempt to interpret this distinctness in another way, not less in accordance with their opinion, while they say that the Son is the flesh, that is Man, Jesus, while the Father is the Spirit, that is, God, Christ.49 For Tertullian there is no transfiguration or amalgamatic substance formed here; instead, flesh remains flesh and spirit remains spirit in the same way that God remains God and man remains man: ‘We see a twofold state, not confused but joined in one person, God and man, Jesus.’50 Tertullian remains a Stoic and rejects both dualism and docetism. The Aristotelian identification of a monarchy and an oikonomia that penetrated the Stoa is one of the key reasons as to why the Church Fathers elaborated the Trinitarian paradigm in

45 46 47 48 49 50

See Osborn, 1993: 122. Tertullian, Against Praxeas, 8.7 in Tertullian, 1851–53. Ibid: 3. Ibid: 12.3. Ibid: 27. See also the discussion in Osborn, 1993: 140–1. Ibid.

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oikonomic terms and not in political terms.51 The Trinitarian mystery is conceived as a matter of praxiology, rather than ontology. There is no mysterious plan of salvation; mysterious is, instead, the economy of ad hoc management. Excursus: It is worth looking briefly at the doctrinal ramifications of the Trinitarian doctrine for the orthodox Greeks.52 For Gregory of Nazianzus the three names of Father, Son and Spirit were not names of ousia, which pointed to a transcendent power, but were instead names of a ‘relationship’, of the relationship of God to humanity and of the relationship of the three hypostases to one another.53 When the doctrine of God as one, articulated in the context of natural theology as the centre of the later apologetic case of the Cappadocians against polytheism, became in turn the presupposition of all theological principles, the orthodox dogma of the Trinity as expressed in the council of Nicaea was confronted with criticism for falling in the ambit of what Gregory of Nyssa named the ‘superstition of polytheism’.54 The council of Nicaea affirmed in its declaration that the Son was ‘homoousios with the Father’. This did not differentiate or affirmatively relate the three persons on the basis of a similar ousia, since the divine was seen as free of quality: instead, a diversity of names did not imply a diversity of ousia. The Cappadocian settlement in the East culminated in the formula of three hypostases and one ousia. The West had settled for the term prosopa or personae in order to avoid suggesting three ousiai. To cope with such difficulties that led to paradoxical understandings of the divine economy, the Greeks distinguished theology (as the doctrine of the Godhead as God) from economy (as the doctrine of the historical dispensation of God in its relationship to humanity and the creation.) Gregory of Nyssa applied the distinction to the classification of theological terms: ‘It is possible to make a twofold division of the signification of the divine names, as it were by a scientific rule; for to one class [that is, to theology] belongs the indication of the lofty and ineffable glory of God, whereas the other class indicates the variety of the economy.’55 Gregory of Nyssa also stressed the economy in terms of an economy of time: ‘Within the temporal economy, God is the one who governs all things in a certain order and sequence.’56 Gregory of Nazianzus offered a similar understanding of the distinction between the divine kingdom in its transcendence (‘that true and unapproachable kingdom of God’) and oikonomia as the 51 Agamben, 2007b: 57–8. 52 The Eastern Orthodox understanding of Christology is largely ignored in most studies. Georges Florovsky’s work helps to enlarge the debate on Christology; see Florovksy, 1974. In addition, on the development of theology and political thought in Byzantine times see Baker, 1957 and Ostrogorsky, 1957. For a discussion of the recent literature see Koyzis, 1993: 267–89. 53 Gregory of Nyssa, Contra Eunomium, I.568–71 in Gregory of Nyssa, 1960. 54 Gregory of Naziansus, Or.38.15 in Gregory of Naziansus, 1942. 55 Gregory of Nyssa, Contra Eunomium, 3.1.131–32 in Gregory of Nyssa, 1960. 56 Gregory of Nyssa, Hom.opif. 22 in Gregory of Nyssa, 2000.

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principle of an immanent order in the world. It was order [taxis] in its oikonomia that established laws and crowned arête (virtue) with honour and achieved social harmony.57 Mysterious, now, Agamben explains, is the very economy as such, the very same praxis according to which God orders at the same time the divine life, articulated in a trinity and the world of creatures.58 The mystery of divinity reveals itself to be the mystery of administration, delegation and government. The articulation of the divine life’s Trinity and the salvation of humanity are at the same time divided and inseparable. The oikonomia renders possible a conciliation in which the transcendent God, at the same time one and Trinitarian, in order to remain transcendent, assumes an oikonomic praxiology and founds an immanence of government as praxis where the mystery of sovereignty coincides with the story of humanity. It becomes absolutely crucial for the theologians to determine in a satisfactory way the scission between the articulation of the triunity of God as non-temporal and transcendent and the manifestation of the divine operation of salvation in history through an immanent dispensation. A more attentive analysis, Agamben suggests, shows a unitary semantic sphere where the estrangement of the world and the governance of the world, unified being and plurality of actions, ontology and history, are problematically conciliated in the doctrine of the Trinity through the use of an oikonomic paradigm. What Agamben has begun to show here, then, is that the oikonomia of God (its internal organization) and the history of salvation are not only non-contradictory, but actually can only be understood properly if seen through their functional relation under a divine oikonomia. From the start, and continually, the articulation of the dogma of the Trinity is not presented in an ontologico-metaphysical manner, but as an economic apparatus, an activity of government, at the same time domestic and worldly. The paradox at stake, then, was that of how to conceive of a transcendent God who nonetheless manages creation in the world.

The Trinitarian doctrine The preoccupation of the Church Fathers in conceiving of the doctrine of oikonomia in the Trinitarian logic was that of resolving the aporetic fracture in monotheism presented by the reintroduction of a plurality of divine figures or personae. What is divided here is not the being of God, but the oikonomic praxis or power of God. This fracture, Agamben notes, has a gnostic origin and it originates in the scission between being and acting. This provides for a rich inheritance in Western philosophical, juridical, ethical and political thought as is evident in every attempt that conceives of a reciprocal

57 Gregory of Naziansus, Or.32.8–12 and Or.32.9 and Or.16.19 in Gregory of Naziansus, 1940. 58 See Agamben, 2007b: 65–7.

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determination of being and acting in philosophical, ethical and political principles that provide both the rules according to which one is to act and the principium, the authority according to which this is made possible as its justification or ontological condition of possibility. Every attempt to understand this fracture must begin by a consideration of the problem of the fracture that Aristotle resolves in his Metaphysics in the perfect unity of being and acting. It is this very unity that the paradigm of oikonomia brings into serious question. The mystery is that, in theological terms, God is revealed through Christ not in his essence, but in his praxis of salvation and it is this fracture that founds the aporia of modern ethics.59 In Aristotle’s Metaphysics Book L his theology finds its central statement; if God as an unmoved motor can move the celestial spheres, this is because such is his nature and it is not necessary to assume any special will or particular activity that determines the fate of the world. In the classical world, Agamben writes, ‘fate’ corresponds to a perfect unity between being and praxis. It is this unity that the doctrine of oikonomia places radically into question. According to this doctrine God governs the world and in this manner his being and his praxis are distinguished. Instead, Aristotle defines motion (kine¯ sis) as ‘the fulfilment of what exists potentially, insofar as it exists potentially’.60 A thing is in a state of actuality, meaning that it is what it is, but it also is potentially something else. Its pure potentiality is, as it were, an attribute of a thing as actual. Aristotle writes: It is the fulfilment of what is potential when it is already fully real and operates not as itself but as movable, that is motion. What I mean by ‘as’ is this: Bronze is potentially a statue. But it is not the fulfilment of bronze as bronze, which is motion. For ‘to be bronze’ and ‘to be a certain potentiality’ are not the same.61 A thing as movable is moved by contact with an efficient cause, or a mover. The mover as moved becomes the means by which a form comes to inhere in another moving and then moved thing. It is the actualization of the thing as movable through its contact with a moved efficient cause that is motion. In Physics, Aristotle elaborates that motion is eternal.62 Motion cannot begin without the prior existence of something to impart motion in another thing, so that there will always be something in motion, since something at rest cannot cause motion in another thing. Aristotle concludes that there must be something that imparts motion without itself being moved.63 In Physics 59 60 61 62 63

Agamben, 2007b: 69–70. Physics 3.1; 201a 10–12 in Aristotle, 1998. Ibid: 201a. Ibid: 8.1. Ibid: 8.5.

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Aristotle writes that: ‘There is something that comprehends them all, and that as something apart from each one of them, and it is that which is the cause of the fact that some things are and others are not and of the continuous process of change.’64 The unmoved mover having no magnitude means that the first mover is indivisible, having no parts.65 Aristotle calls first philosophy (he¯ prôte¯ philosophia) or theology (theologike¯ ), the episteme that ‘deals with things that both exist separately and are immovable’ (he¯ de prôte¯ kai peri chôrista kai akine¯ ta).66 Aristotle has in fact earlier stated his aim as proving that: ‘There is a science which investigates being as being and the attributes which belong to this in virtue of its own nature.’67 Hence, Aristotle divides substance (ousia), which is at the core of his enquiry into three types: 1. Sensible (aisthe¯ te¯ ) and perishable (phtharte¯ ); 2. Sensible and eternal (aïdios); 3. Immovable (akine¯ tos). It is the third type that is of particular concern here: ‘But it is impossible that movement should either have come into being or cease to be (for it is eternal), or that time should’ (all’ adunaton kine¯ sin ê genesthai ê phthare¯ nai (aei gar e¯ n), oude chronon).68 Aristotle adds later, ‘for that which has potentiality need not exercise it’ (alla me¯ n ei esti kine¯ tikon e¯ poie¯ tikon, me¯ energoun de ti, ouk estai kine¯ sis: endechetai gar to dunamin echon me¯ energein).69 The first mover is fully actual in the sense of pure potentiality: ‘Therefore the first heaven must be eternal’ (hôst’ aïdios an eie¯ ho prôtos ouranos).70 This leads Aristotle to argue that the unmoved mover moves by being the final cause of the motion of the first heaven, insofar as it is the object of love: ‘The final cause, then, produces motion as being loved, but all other things move by being moved’ (kinei de¯ hôs erômenon, kinoumena de talla kinei).71 What is at stake for Aristotle is the determination of the first principle of his first philosophy as necessary (and therefore good).72 The first arche¯ is named God: ‘And life also belongs to God; for the actuality of thought is life, and God is that actuality; and God’s self-dependent actuality is life most good and eternal’ (kai zôe¯ de ge huparchei: he¯ gar nou energeia zôe¯ , ekeinos de he¯ energeia: energeia de he¯ kath’ haute¯ n ekeinou zôe¯ ariste¯ kai aïdios).73 The essence of the unmoved mover, God, is the thinking on/of thinking: ‘Therefore it must be of itself that the divine thought thinks (since it is the most excellent

64 65 66 67 68 69 70 71 72 73

Ibid: 259a 3–5. See also 8.6. Ibid: 8.10; 267b 18–26. Metaphysics 6.1; 1026a 15 in Aristotle, 1997. Ibid: 4.1; 1003a 17–18. Ibid: 12.1; 1071b 6. Ibid: 12.6; 1071b 11–13. Ibid: 12.7; 1072a 24. Ibid: 1072b 4. Ibid: 1072b 14. Ibid: 12.7; 1072b 25–27.

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of things), and its thinking is a thinking on thinking’ (hauton ara noei, eiper esti to kratiston, kai estin he¯ noe¯ sis noe¯ seôs noe¯ sis.)74 Agamben’s interpretation of Aristotle’s unmoved mover centres on paragraph Ten of Book L. It contains a most dense and complex passage that deals with the difference between transcendence and immanence. Transcendence and immanence are not simply distinct as in between a superior and an inferior thing, but are articulated at the same time in order to form a unitary system, within which the good is separated from the immanent order and yet the two constitute a machine or a temporality that is cosmological and political (or economico-political).75 In paragraph Ten Aristotle proceeds to explain this dichotomy in a different manner, however: We must consider also in which of two ways the nature of the universe contains the good, and the highest good, whether as something separate and by itself, or as the order of the parts. Probably in both ways, as an army does; for its good is found both in its order and in its leader, and more in the latter; for he does not depend on the order but it depends on him. And all things are ordered together somehow, but not all alike – both fishes and fowls and plants; and the world is not such that one thing has nothing to do with another, but they are connected. For all are ordered together to one end, but it is as in a house, where the freemen are least at liberty to act at random, but all things or most things are already ordained for them, while the slaves and the animals do little for the common good, and for the most part live at random; for this is the sort of principle that constitutes the nature of each. I mean, for instance, that all must at least come to be dissolved into their elements, and there are other functions similarly in which all share for the good of the whole.76 While transcendence is defined in the traditional terms of autonomy and separation, it is worth noting, Agamben explains, that immanence is defined according to the term order (taxis). The immanence of the good signifies order (taxis). This is further complicated by the use of a military metaphor, yet Aristotle will ultimately abandon this metaphor and will refer to paradigms that pertain to nature and to the administration of the household. This is a singular move in Aristotle, whereby the conciliation between transcendence and immanence (corresponding to the idea of an order that is reciprocal among all things) is grounded on the imagination of an oikonomic nature.77 The unity of the world is grounded in the order of a household

74 75 76 77

Ibid: 12.9; 1075b 34. 2007b: 95. Metaphysics, Book L, 10, 1075a in Aristotle, 1997. Agamben, 2007b: 96.

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(and not in the order of the city) and it is on this basis that for Aristotle the order in question is necessarily monarchical.78 Aristotle conciliates transcendence and immanence as a bipolar system in unity through the principle of a monarchical order that is eternal and necessary (and therefore good). The nature and manner of order is one of relation between the first substance that is God and the relations that form as present in the world. As such it is a practical relation, hence the use by Aristotle of the term order to signify it, which relates the essence or substance of God to his actions (praxeis). In this manner, in Aristotle, the relation of order remains an aporetic relation and through it Aristotle has transmitted to occidental politics the paradigm of a divine government of the world on the basis of a double system formed in one part by a transcendental principle or arche¯ and in another by an immanent course of actions and of secondary causes.79 The gnostic fracture between being and acting, between the essence of God and his praxis of salvation that the theologians inherit founds also the aporetic relation between theology and oikonomia. In Origen, for instance, one finds a crucial fracture between the ousia (nature) of God and his will (boule¯ ). It is of significance that the Neoplatonists and the gnostics will, thus, write of an autobouletos boule¯ , which will then penetrate Aquinas and Augustine in their Trinitarian formulations, as well as modern philosophers from Schelling to Nietzsche who, according to Heidegger, founded the modern Western history of metaphysics on the basis of will and its primacy.80 In this vein, the whole of the fourth century’s continuous theological debate, which centred on the Church’s struggle against Arianism, can be read in a more lucid way as an episode in the theological struggle to reconcile being and action that Christianity itself had separated. Arius based his theology of the conception of God as a perfect unity (a self-enclosed monad) on the basis of God’s absolute essence or being and, as a consequence, it was held impossible that God could endow his essence to anyone else. Between the Father and the Son there exists, for Arius, an aporetic relation between an eternal Being and a mediator who comes into being for the sake of the creation of the world. The Son has a mutable nature, as a creature, as something that is generated and is endowed with divine glory a priori from the outside. The divine Trinity is, as such, rejected.81 The hypostases of the Trinity are not co-eternal and do not share in the eternal substance, but are eternally different. There are instead three wills or essences, which are distinct from the eternal essence of God. The Trinity cannot be monotheist. The Son is not

78 79 80 81

Aristotle, Metaphysics, Book L, 10, 1076a in Aristotle, 1997. Agamben: 2007b: 97. Ibid: 71–2. On this see Florovsky, 1978.

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without beginning (anarchos), but is generated in time. The world, for Arius, contrary to Aristotle and Origen, cannot be eternal, but must have its origin in another. The centre of the dispute thus lies in the origination of the Son, Christ. For Arius the Son is generated by the Father (pro chronon aionion) as achronos. Yet in Arius this atemporality refers not to a chronological precedence (time does not exist yet) nor to a problem of hierarchy or rank (between God and the Son). The Son, who is the word and the praxis of the Father (the anarchos) is generated before time by the Father and receives his arche¯ in God’s anarchy. It is only God that is anarcho¯ s, aidio¯ s and ateleyte¯ to¯ s (unfounded, eternal and infinite).82 The Son is originated through the anarchy of God, but is not without arche¯ or principle. Against this Arian conception the Church Council of Constance (343) affirmed that the Son is reigning absolutely, anarchically and infinitely simultaneously with the Father. The Nicene thesis (that would later affirm the victory of this thesis) concluded that the origination of the Son does not pertain to the nature or being of God, but to the mystery that founds him in God without arche¯ , fundament or principle. Oikonomia and Christology, at this point, Agamben notes, are not only historically, but originally linked and inseparable: as in the oikonomia of praxis so it is in Christology that the Logos, the word of God, is anarchical.83 Without an appreciation of this link, Agamben maintains, it is impossible to understand properly the atheological tendency in occidental philosophy and theology that founds itself in the caesura between ontology and ethics, as well as the governmental paradigm of Western politics as anarchic-governmental. Oikonomia is not carrying out an antecedent plan but is ad hoc management. That Christ is anarchic means, ultimately, that language and praxis do not have a foundation in being, but in oikonomia. This fact draws further light on the distinction among the Church Fathers between theology and oikonomia and it is against this background that the theology of Eusebius becomes clearer. Eusebius, like the Cappadocians in Byzantine times, used the neo-Platonic term hypostasis to describe the generation of the Son from the Father. The Son existed in the Father, before time, but only in potentiality and only later was he generated by the will of the Father as an actual and independent hypostasis, an intermediate force between the Father and the created world. Eusebius understands in this manner, further, the division in Christ between his humanity and his divinity in a manner that will separate Logos into two logoi, one that concerns divinity and another that relates to the oikonomia of the incarnation and the salvation.84 It is on this basis that the Church Fathers will speak eventually of two Trinities: an

82 Agamben quoting Eunomius in 2007b: 74. 83 Ibid. 84 See the discussion in Agamben, 2007b: 76–80.

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immanent Trinity and an oikonomic Trinity. This articulation between two Trinities, distinct and yet inseparable, forms the aporetic relation that the Trinitarian doctrine produces in Christian theology in the sense of a providential government of the world grounded in the formation of a bipolar machine.85 This may explain the overall apologetic conception of history in Eusebius (where the present was conceived as a demonstratio evangelica) and Constantine’s conversion and patronage of the Church, in Eusebius’ time, seen as evidence of the providential government of the world. According to the paradigm of oikonomia, therefore, the divine praxis of creation is not founded on the being of God but is distinguished and realized in a separate persona, the Son in logos, who is as such unfounded and anarchic and which, as praxis, attempts to conciliate the unity between transcendence and immanence. In other words, it attempts to overcome the gnostic antithesis between a God other to this world and an immanent demiourgos of the world.86 This does not mean, Agamben writes, that if Christian theology implies an oikonomia (and not state politics) that oikonomia is irrelevant to the history of political ideas. On the contrary, this requires a methodical reconsideration of the history of political ideas through a new oikonomic perspective. Occidental political history operates, in this manner, through a bipolar system or machine, rather than merely through a sovereign transcendentalism (which has always been the obsession of political theology and of juridico-political foundations).87 Western politics inherit the gnostic scission between the God of first principle (arche¯ ) as anarchos, as the God of the good, and a demiourgos as another God, who in providential logic is the source of evil in the world. The paradigm of the first King-God is Platonic (Panton Basilea), whereas the second God is one who guides and commands, a hegemon. In Numenio and Marcian this gnostic antinomy prevails and in the Church’s doctrine of oikonomia this antinomy is inserted in Christian doctrine in order to be conciliated. In the latter, the creator of the world is a God without generation (anarchos) whereas the salvation of the world is performed praxiologically by his Son and his logos. The two remain distinct and inseparable at the same time for the conciliation to be effective. The immobile mover of God in his transcendence reigns, in this sense, but does not govern the immanent world. Order becomes the terminus technicus in Aristotle and in the character of oikonomia in the internal scission between a taxis that is separate (kechorismenos) and a taxis that is as such (kath’auto). Will Durant, Agamben notes, was one of the first to see this in Aristotle: Aristotle’s God

85 Eusebius, Demonstratio Evangelica, 1.2.10 in Eusebius, 1920. 86 Agamben, 2007b: 81. 87 Ibid.

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is a do-nothing King – he reigns, but he does not govern.88 Averroës sees in this the extreme consequence of the di-theism of the gnostics (one creator for the good and another for evil) and this forms the inheritance of Aristotelian theology and metaphysics as a fracture between immanence and transcendence.89 As a result, the modern conception of order as a fundamental paradigm of politics, law, as well as metaphysics, is the work of medieval thinking, and the relation between God or first philosophy and the world or praxis shows its true nature as an ontological problem. Order forms an ontological signature and in the most extreme formulation of the Aristotelian aporia who attempted to coordinate two types of order, in Aquinas order is placed as the most fundamental problem of ontology fractured between an ordo ad unum principium (the relation of creatures to God) and ordo ad invicem (the relations of creatures among themselves.) That is, an ordinis ordinatio and an ordinis executio or, later, in Spinoza a natura naturans and a natura naturata.90 Being or substance is to order what condition is to possibility and, in this way, the signature of order (taxis) forms the apparatus through which ontology and praxis enter a constellation that medieval ontology transmits to modern Western philosophy.91 Oikonomia, order and government form the inseparable triad that compose the new ontology which modernity inherits from Christianity. The distinction between an anarchos and impotent God as regimen Dei (Aquinas) or general providence of first causes is distinct and yet inseparable from the special providence of secondary causes as regimen intelligentiae or regimen cause. It is on this basis, as seen in the previous chapter, that the canonists will distinguish potestas as a pure imperium from an effective imperium, where power is exercised on the basis of papal authority as plenitudo potestatis.92 The world is governed through the coordination of two poles: auctoritas and potestas, a power without effective execution and a power of execution, a potentia absoluta and a potentia ordinata (as examined in the previous chapter). In attempting to conciliate (through the theological apparatus of order and of oikonomia) the omnipotence of God with the idea of an orderly government that is not arbitrary and chaotic, the twin poles of a formal power or sovereignty and one of execution are formed and show their origin in an oikonomic and, in this sense, non-political, paradigm. The impotence of pure power (God’s omnipotence) is now to be understood as the condition of

88 Ibid: 99. 89 Ibid. 90 Agamben, 2007b: 108. On Aquinas and the distinction between regal and political power following his principle of order see Blythe, 1986: 547–65 and also Greenleaf, 1964: 747–60. 91 Agamben, 2007b: 100–3. 92 Ibid: 114–15.

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possibility of a world government.93 This fracture between the ancient Greek and Christian theological being and praxis or the medieval distinction between kingdom and government is first transmitted through the paradigm of oikonomia (which, as seen earlier, forms the central apparatus of the Trinitarian doctrine in Christian theology). The do-nothing King was a King that was separated within into a dignitas and an administratio, a spiritual and a temporal power. ‘Dignity’ or potentia absoluta is the reserve of the things that God is unable to do (his impotence). The proper ordering of the world presupposes a divine impotence beside it.

Providential theodicy It has been demonstrated above in a preliminary fashion that, for Agamben, the first germ of the division between kingdom and government lies in the Trinitarian oikonomia, which introduces in divinity a fracture between being and praxis. The notion of order in medieval thought – and significantly in Aquinas – was unable to saturate this scission without reproducing the fracture internally through a division between a transcendent order and an immanent order (ordinatio and executio). Aquinas’ use of the concept of order appears central to the structure of his whole philosophy in that he used the term order as a synonym for divine rational will and purpose, and as a description of the divine oikonomia on the basis of eternal law. Order is conceived as hierarchical, as a chain that connects the angels to ordinary beings (composing a symmetrical diversity). In this manner the structure of the social corresponded directly with the arrangements on the angelic plane, as well as with the plane of the household.94 The way in which Aquinas linked the differing planes was through the concept of divine providence. In Aquinas’ treatise De regimine principum or De regno, which deals with the matter of kingship and its origin, the problem of government as differentiated from that of kingdom, culminates in the notion of providence (a synonym for oikonomia). Aquinas writes: Where there is no governor, the people shall be scattered. This accords with reason; for individual interests and the common good are not the same. Individuals differ as to their private interests, but are united with respect to the common good, and such differences have various causes. It is fitting, therefore, that, beyond that which moves the individual to pursue a good peculiar to himself, there should be something which promotes the common good of the many. It is for this reason that wherever things are organized into a unity, something is found that rules all

93 On omnipotence see Rudavsky, 1985. 94 Summa Theologiae, Ia, cviii.2 in Aquinas, 1964.

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the rest. For by a certain order of Divine providence all bodies in the material universe are ruled by the primary, that is, the celestial body, and within the soul, the irascible and concupiscible appetites are ruled by reason.95 Further, in Salvian’s De gubernatione Dei, which is his best-known work, the decline of Roman power is viewed as a demonstration of God’s government and judgment of human actions, where gubernatio is synonymous with the concept of providence. Like Augustine, Salvian was keen to argue that the difference between the captivity of the Christian Roman Empire and the prosperous domination of pagan Rome was not due to God’s indifference and lack of governance of the world. For Salvian the world is constantly and immediately governed by God in his judgment: How then can God be said to neglect the world for which he so far shows his love that he extends his own being through its whole mass? Plato and all the Platonic school confess that God is the controller of all things. The Stoics testify that he remains always a steersman within that which he guides. What truer or more religious conception could they have had of the loving care of God than his comparison with a helmsman? For they clearly understood that as the helmsman never takes his hand from the tiller, so God never in the slightest degree withdraws his care from the world; and as the pilot catching the breezes, avoiding the rocks, watching the stars, is completely absorbed, body and soul, in his task, so our God never turns his most gracious eyes from the whole extent of the world, nor takes away the guiding power of his providence, nor removes the indulgence of his most kindly love.96 Providence is the name of the oikonomia in which it is presented as the government of the world and it is only in this manner that the governmental machine in question can be understood in its proper economico-theological terms.97 In this argumentation it is important to maintain that while modern concepts of government do not continue in a linear fashion the story of the medieval regimes, the bipolarity of the providential machine (between first and secondary causes, general will and particular will, ordinatio and executio and so forth) shows that modern thought shares with its (so-called less modern) predecessor eras its origin in Trinitarian oikonomia. It is possible to argue, Agamben writes, that the doctrine of providence is

95 See Aquinas, 1948–50: 7. 96 Book I, i. in Salvian, 1930. 97 Agamben, 2007b: 127–8. See further Agamben’s detailed analysis of the arguments of Aquinas in 147–56.

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the privileged theoretical domain where the classical view of the world, according primacy to being over praxis begins to decline and a deus otiosus gives way to a deus actuosus.98 The history of the concept of providence coincides with the long debate that sustained the idea that God participates in the world only through general principles or a universal providence (providentia generalis). The position that claims this to be so, whereby the possibility of a particular providence is denied or excluded, is that of Aristotle and, ultimately, of deism.99 The opposite position to deism affirms the existence of two forms of providence and as such it represents the position of the Stoics, and ultimately forms the dominant current of theism in Christian theology, within which the problem of reconciling the freedom of man with the special providence of God stands as central.100 The true root of the problem of such reconciliation is not so much the freedom of man, but the possibility of a divine government of the world. If kingdom and government in God are not seen as separate, then a divine government of the world does not seem possible: on the one part, one locates an impotent sovereignty and, on the other, a series of infinite and chaotic multiplicities of action on the basis of particular providences. Government is only possible if kingdom and government are correlated in a bipolar machine formed between general and particular or special providences. The first apparition of the providential machine, following Agamben’s analysis, is located in a passage of Chrysippus’ Peri Pronoias or On Providence. The Stoic position is described by Diogenes Laertius as follows: ‘According to the Stoics there are two principles in the universe, the active and the passive. The passive principle is a substance without quality, matter; the active principle is the reason in matter, that is, God. And God which is eternal is the creative craftsman of all things in the extent of matter.’101 In Chrysippus the appearance of two seemingly distinct problems (the problem of evil in the world and the question of divine government) in a strategic conjunction suggests the affinity of this providential machine with the threshold enquiries of modernity as they materialized centuries later – with Bayle and Leibniz – as to theodicy, that is, the problem of justifying God’s ways in the face of the apparent imperfections and evil in the world. To the Stoic view that divine providence governs the world in every detail, the Epicurean view stood as its direct opposite, according to which God is not concerned with the world. This is further evident

98 Ibid: 129. 99 Deism rejects the Christian/Jewish idea of a personal God who constantly meddles in every affair and has everything planned in advance. 100 See Agamben, 2007b: 129. 101 7.134, LS 44B in Diogenes Laertius, 1931. The chief architects of the Stoa were Zeno, fourth century B.C.; Chrysipus, third century B.C.; Epictetus, first century A.D. and Marcus Aurelius, second century A.D. See Rist, 1969; Schofield and Striker, 1986; and Colish, 1985.

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with regard to tyche or contingency: while Epicurus argued for contingency, the Stoa maintained the rule of heimarmene and pronoia (or providence) against Epicurus’ tyche. Contingency for the Stoics is not an arbitrary whim, as this would contradict their confidence in the divine providence in the world. Tyche itself is conceived by the stoics as belonging to divine providence.102 In modernity, Malebranche’s insights on this debate provided that the world that God has created is one out of many possible worlds, and its government is made possible on the basis of a distinction and co-relation between general and particular volitions (volontés générales and volontés particulières). God acts, for Malebranche, only by general volition, which is in accordance with some law and whose operation is occasioned by a prior event and in the most simple of ways. While, in accordance with some particular volitions, God could intervene and correct the deformities and evil that exist in this world, Malebranche warns that God acts through general volition and the uniformity of his will should not be confused through demands for miracles and particular interventions.103 As the resolution of this problem Leibniz argued that this world is the best of all possible worlds precisely because this world combines the uniformity, generality and simplicity of God’s laws with the richness of phenomena (as hypotheses or possibilities) in their irregularity and deformity. Evil and deformity are possible and exist in the world, but are not positively willed by God since they occur by means of ‘the laws of nature that he has established’.104 Viewing the world, as created by the ‘great architect or geometer’ (God), for Leibniz, requires an overcoming of the limited insight that pays too much attention to evil and irregularity: God, by a wonderful art, turns all the errors of these little worlds to the greater adornment of his great world. It is as in those devices of perspective, where certain beautiful designs look like mere confusion until one restores them to the right angle of vision or one views them by means of a certain glass or mirror. It is by placing and using them properly that one makes them serve as adornment for a room. Thus the apparent deformities of our little worlds combine to become beauties in the great world, and have nothing in them which is opposed to the oneness of an infinitely perfect universal principle: on the contrary, they increase our wonder at the wisdom of him who makes evil serve the greater good.105 102 Plutarch’s Peri tyches is an invaluable source on this; See Buriks, 1950: 59–69. Agamben discusses Plutarch’s treatise in some detail in 2007b: 136–9. 103 Malebranche, 1959–66: discourse I, article 13. 104 Leibniz, 1952, II, para.204. 105 Ibid: II, para.147

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The hidden laws of divine providence, while invisible, are the perspective from which the world can be seen as the best of all possible worlds. Divine will in its generality tends to all good as good, ad perfectionem simpliciter simplicem, and this general will is efficacious of itself (per se), God being the master of all things.106 Evil is antecedent and does not derive from God’s immediate general volition and, as such, it forms an inevitable consequence of the possibilities that God permits (but does not necessarily will) in this world. Evil and irregularity, following Chrysippus’ insight into Peri pronoias, is defined by Leibniz as kata parakolouthe¯ sin (antecedent and secondary).107 It is this distinction that Chrysippus transmits to modern philosophy and Christian theology. The position of Alexander of Aphrodisias on divine providence is of particular interest at this point as it marks an attempt to negotiate between the Epicurean and the Stoic positions. Alexander argued that divine providence extends to the sublunary world ‘in the effect of the complex motions of the heavenly bodies, in ensuring the regularity of coming-to-be and passing away and the continued existence of sublunary species though not of individuals’.108 Providence extends only to species and not to individuals and this conciliates the existence of irregularities in the world and the injustices suffered with the general providence as willed by God. The contradiction in question is that while the providential concern with the world cannot be a primary concern of the divine will, it cannot be purely contingent either. The solution that Alexander provides is through the distinction of two providences as a matter of kind or degree: there is a region where providence is exercised and over which it is exercised.109 Two types of government or organization are recognized: one for the heavenly bodies and one for the sublunary world or, in Agamben’s terminology, kingdom and government.110 Alexander proposed an intermediate model between Epicurus and the Stoa, whereby the opposition is neutralized and forms the proper paradigm of providential action. Nature, as Alexander calls it, is a divine technique that does not correspond to the rational reflections of things, but

106 Ibid: I, para.22. 107 Ibid: II, para.209; see the discussion in Agamben, 2007b: 130–1. 108 De Providentia, 33, 1 ff., 87, 5 ff., q.1.25 41. 8 ff., 2.19.63 in Alexander of Aphrodisias, 1999. The treatise De Providentia survives only in two Arabic versions and has only recently been translated into German; see Ruland, 1976. Here I have consulted the German translation in parallel to Thillet’s summary in Thillet, 1960, as well as the existing Greek fragments preserved by Cyril of Alexandria discussed in Grant, 1964: 265–79 and the Italian translation from 1999 to which Agamben refers. For a detailed discussion of the fragments in question see Sharples, 1982: 198–211. 109 De Providentia, 59, 12–61.6 in Alexander of Aphrodisias, 1999. 110 For a discussion, see Sharples, 1982: 202, who discusses parallels between Alexander and the middle-Platonist discussions on providence as well as with Maimonides. Agamben’s discussion is particularly illuminating in 2007b: 131–3.

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to the irrational power of God. In Alexander, Agamben notes, the theory of providence, within its Aristotelian ambit, does not intend to found a divine government of the world but, rather, through the correlation between the general and the particular, to view the contingent mode of the world on the basis of universal providence. The God that reigns but does not govern renders possible precisely this mode of governance. The government is, in this sense, the epiphenomenon of providence (or of reign).111 It is this conciliation that Alexander transmits to Christian theology, which makes possible the conception of a divine governance of the world. The distinction between divine providence (as a general providence) and the immanent economy of the world does not function as a tyrannical imposition of a general will on the particular order (and disorder) of the world, but understands the particular deformities as collateral effects of nature. Alexander, as Sharples writes: rejects the argument to determinism from universal divine foreknowledge; it would be more reasonable, he implies, while retaining the principle that the Gods cannot have foreknowledge of the contingent – on which indeed the determinist argument depends – to argue, that, as not everything is necessary, the Gods do not have foreknowledge of everything. He does however suggest – though only hypothetically, his concern being to refute his opponents rather than to establish a position of his own – that the Gods have foreknowledge of the contingent, in a sense, foreknowledge of the contingent as contingent.112 In Plutarch’s or pseudo-Plutarch’s Peri tyches or On fate the Stoic distinction between an ousia (essence) and an energheia (effectivity) is maintained and according to the plane of effectivity, fate or tyche is assimilated to a law (nomos) of special providence. As in civil law (politikos nomos), which does not revolve around this or that individual, but is formed in accordance with a universal presupposition, fate is identified with the conditionality of effectivity (to ex hypotheseo¯ s).113 Destiny divides, in this sense, the real into two planes: the plane of general antecedents (proe¯ goumena) and the plane of particular effects. The general antecedents exist in destiny, but are not derived according to destiny and destiny, as a result, is the result of the correlation of these two planes.114 For Plutarch, only the universal providence that follows God’s general will merit the name of providence and, in this vein, fate or tyche, corresponds to the plane of particular effects or collaterals (akolouthia).

111 112 113 114

Agamben, 2007b: 134. 1978: 260. Plutarch, Peri tyches, 568d. I follow here Agamben’s analysis in 2007b: 136–9. Agamben, 2007b: 137.

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On the basis of Plutarch’s understanding of fate, as well as Alexander’s, an ontology of collaterals is posed as the condition of possibility of government, that is, as activities that are not direct and in ultimate analysis are neither merely general nor particular, but are rather of a third kind, collateral, and which form the plane of correlation between the general and the particular. To the Aristotelian division between four types of causality (efficient, material, formal and final) fate poses a new problem since it cannot fit within any of the four without producing contradictions. For Alexander, Agamben writes, government (dioikesis, administration) is not the cause of irregularities and deformities according to fate but is primary to it. At the same time without government an ordinary world (kosmos) is not possible and, without the latter, Gods are not possible either.115 What unites the world in its ordinariness and divine providence or government is a single oikonomia. Disorder appears in this manner as a necessary contingency and as a contingent necessity for the effectiveness of a government of the world. In Proclus (one of the central influences on Boethius’s De Consolatio Philosophiae), who forms another of the well-known reference points with regard to the doctrine of providence, this division is affirmed in the mode of two elements or planes. At every point the universe of primary efficient causes is distinguished from their effects, in such a way that Agamben proposes that the type of ontological understanding implied here is one of bipolarity between a transcendent plane and an immanent plane. Providence corresponds to the transcendent plane, while fate and the effects in question belong to the immanent plane. Further, to the two planes correspond, by implication, as two temporalities: the connection of the destined effects in the world explains and realizes the providential effusion of transcendental good. When, with Boethius’ De Consolatio, providential logic is transmitted to Christian theology, the apparatus of the functional relation and distinction between (general) providence and (particular) fate, the apparatus retains its paradox: ‘That which departeth farthest from the first mind is involved more deeply in the meshes of Fate, and everything is so much freer from Fate, by how much it draweth nigh to the hinge of all things.’116 With Boethius, providence and fate, transcendence and immanence, which in Plutarch and Proclus formed the two faces of one system, are now seen with clarity as stemming from a intertwined form of world government that produces a spontaneous theodicy (and a division of powers that seems like a precursor to the modern division of government in three powers). Agamben suggests,

115 2007b: 139. 116 Boethius, 1918: book IV, pr.vi, II. 51–89, 343. In Boethius providence stands above fate, II.37: 157–8. For a discussion of the disputed sources of Boethius’ treatise between Proclus, Neo-Platonism and Plotinus in particular see Patch, 1929: 62–72. For Agamben’s note on the sources and influence, see 2007b: 142.

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thus, that the powers that govern the world are the result of an interaction between a transcendental principle (simple and eternal) and an immanent oikonomia (‘inhaerens rebus’) articulated in time (‘explicata temporibus’) and in space (‘locis [. . .] distributa’).117 The two principles are heterogeneous and yet interdependent. Providence and fate are conceived as two powers that are hierarchically coordinated, within which a sovereign decision determines the general principles of the order of the world and allows for the administration and execution of them by a subordinate power that yet remains autonomous (gestio).118 This serves to explain how the administration of government can appear at times as a miraculous and impenetrable act. This is made possible, in Agamben’s analysis, only through conceiving of two separate, but interdependent aspects of a unitary divine action: a duplex modus of the activity of the government of the world which at times is presented as transcendent, at times as immanent, at times as out of divine will, at times out of providence, at times as fate, at times as temporal and at times as spatial. The governmental machine functions as an incessant theodicy, where the reign of providence legitimates and founds the government of fate and the latter assists in rendering effective the order of providence.119 Here, the law of fate or government coincides with the order of providence through a functional relation or dispositio: an oikonomia.120

Government It is possible at this point to summarize the defining elements of an ontology of the acts of government.121 Providential government is theology’s and phil-

117 118 119 120

Agamben, 2007b: 144. Ibid. Ibid: 145–6. Providential thinking has subterranean connections with modern economic thought as is evident in, for instance, Hayek, 1976 where so-called spontaneous economic orders that can ‘peacefully’ and without coercion coordinate the market systems of exchange, pay frequent tribute to Adam Smith, according to whom, divine providence is what underlies the function of the economy and the innate moral understanding of men: ‘by acting according the dictates of our moral faculties, we necessarily pursue the most effectual means for promoting the happiness of mankind, and may therefore be said, in some sense, to cooperate with the Deity, and to advance, as far as in our power, the plan of Providence.’; in Smith, 1976: 275. At the same time Smith distinguishes ‘our’ participation in the providential plan from the actual administration of the universe as the exclusive matter of God’s power, and in this by implication he distinguishes between a universal, transcendent order and an immanent order with clear theological roots; see, ibid: 378. To the modern economic problematization Agamben devotes a significant part of his appendix; see 2007b: 303–14. 121 The following are a summary of Agamben, 2007b: 157–60.

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osophy’s attempt to answer the scission evident in classical ontology between being and praxis, a transcendent and an immanent good, theologia and oikonomia. Thus, providence presents itself as a machine that rearticulates at the same time the two planes of the fracture evident in gubernatio dei (the divine governance of the world.) In this sense, Agamben explains, providential government represents the attempt to conciliate the gnostic division between a God foreign to this world and a God who governs this world; a division which Christian theology attempted, in turn, to eradicate in the economic articulation of the Father and the Son. In the Christian oikonomia, the God of creation confronts a nature that is corrupt and foreign (estranged), which the God of salvation, wherein lies the governance of the world, is to redeem and save towards a reign or kingdom that is not of this world. The consequence of this formulation is that the Trinitarian overcoming of the gnostic division between the two divinities, leads to the estranged (disenchanted) existence of the world from the very beginning of the formulation of the Christian tradition (rather than in ‘modernity’). The Christian government of the world has the paradoxical figure of an immanent government of a world, a world that is to remain estranged. The gnostic structure that the theological oikonomia has transmitted to modern governmentality entails its own extreme point in the paradigm of government in the West today, which the great occidental powers search to realize (at both the local and the global scales). Providential government is, precisely, not tyrannical government by an impenetrable God, but rather democratic government (on the basis of a negative definition of what is often called constituent power or a People).122 This may serve to explain, Agamben notes, the paradoxical situation that is still experienced, at least, in Western polities, where the emptying of the constitutional and juridical forms (which nonetheless are being imposed by the West on the rest of the world often through military interventions) has rendered them impracticable and empty of any real pragmatic content. The paradox formed most vividly today could be expressed as a government of a world that is becoming, if it has not become already, absolutely estranged. It could be said that such estrangement has attained its most absolute form, today, in that it has explicitly formed the current principle and foundation of government (whether under the name of ‘secularism’ or that of the Western project of ‘globalization’). Such estrangement stretches back, however, to a far longer historical tradition than is usually admitted. The providential machine, in its essence a unitary apparatus, articulates its power upon two distinct planes: transcendence/immanence, general providence/particular or special providence (or fate), primary/secondary causes, eternity/temporality, and intellectual consciousness/praxis. The two planes

122 On this use of the notion of the ’people’, see Chapter 3.

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remain correlated in the alleged mode in which the first founds, legitimates and makes possible the second (as its condition of possibility); and in turn, the second realizes concretely the causes and effects of the general (sovereign) decisions of the divine will. The government of the world is this mythologeme of functional correlation. As a result, the key paradigm of governmental praxis, in its pure form (as a functional relation or apparatus) lies in its collateral effects. Through its collateral effects, government is not directed at a particular end, but derives, as a concomitant effect, from a law and a general economy. At this point, the act of government represents a zone of undecidability between the general and the particular, between the calculated and the non-willed. This is our oikonomia today. The paradigm of the act of government is in its pure form the collateral effect, which in not being directed to a particular end and in being derived as a concomitant effect from a general oikonomia, forms in-between the general and the particular. In this providential machine, transcendence is never given by itself nor separated from the world (as in Gnosticism), but remains in relation to immanence; even if transcendence is portrayed as ‘dead’, as lacking, as ineffable, as an absolute negativity (in Hegel). But this immanence is a false immanence, since true immanence is immanent only to itself, whereas the immanence here is one that is a mere reflexion of the transcendental order. The division between powers or transcendence and immanence is consubstantial with the governmental or providential machine so that one appears as the execution of the other’s ordinatio. As such, immanent order is not that different from transcendence, since it is always understood through the imagination or reflection of a transcendental order, even if it is now a transcendence that orders silently in its withdrawal (in Heidegger’s early work, the withdrawal of Being constitutes an investigation of this very problem and in his later work it forms the very heart of the intensity of his thought).123 This affirms, however, through the logic of oikonomia, the key problem with the central mythological propositions as to legal and political foundations that was described in the previous chapter, as to a Law of law or a Power of power or an ordinatio and an executio (potentia absoluta and potentia ordinata). Indeed, as Agamben suggests, providence and fate, with the series of notions and concepts in which they are articulated (i.e. ordinatio and executio; kingdom and governance; immediate and mediated governance; primi agentes and agentes inferiores; primary act and collateral effects) are not mere theologico-philosophical concepts, but fundamental categories of law. Despite the defining correlation between the two planes, the ontology of government lies in a hierarchical and vicarious ontology, in the sense that in

123 See Chapter 5.

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the economic paradigm of power, every power entails a vicarious character. Such vicariousness, where the one refers always to another, leads not to a promised salvation but instead to the stabilization and legitimation of an economy of power (as an eternal governance which as is already felt can only be a hellish paradigm). It forbids the untying of a bond that is instituted to conceal the ultimate emptiness of the throne of power (as is evident in the theology of divine grace where God’s grace must act in us in such a way as to leave us free). Such vicariousness (along with the correlation of primary and secondary causes, transcendental and immanent orders or powers) enables government to appear not as a despotic or a tyrannical power that directly imposes itself and violates the liberty of the created world, but rather as a democratic government that first of all presupposes the very freedom of all as its very condition of possibility. Modern power in this manner, but also power more generally, conceals its an-archic centre. The modern Statecentred providential paradigm may not seem to coincide perfectly with the paradigm of oikonomia and yet it is the State that assumes the clothing of providence and which freely legislates universal laws while conceiving of its subjects as ‘free’. When in the meantime the State’s ministers execute the State (of the free), its providential dictates, it presumes itself as immanent to the very life of the individuals that it regulates. Freedom, providentially delivered, appears as an apparatus of the still bipolar governmental machine and it forms the now globalized paradigm of the government of the world. When in modernity the administration of power and the separation of powers doctrine became dominant, what was confirmed was nothing other than the fact that the doctrines of oikonomia and providential government (in general and not despite their differences) form categories, not just of theology and philosophy but also of law and of politics. The paradigm of the ‘Law of law’ is a providential paradigm and through Agamben’s analysis it can be said that it has always been an oikonomic one, today, when what both governs and is governed is freedom. The paradox of freedom in the West means that to govern is to allow the production of the concomitant particular effects of a general economy that would remain entirely ineffective if left on its own, but without which governance would be impossible. Governance does not depend on transcendental righteousness (on a sovereign being) but rather transcendental being consists of nothing else than its effects. Now that State providence is dissipating, if it has not done so fully already, it is the law that assumes the clothing of the providential machine according to which Law laws and laws administer or execute the Law. As such the oikonomicogovernmental vocation of contemporary democracies as States of Law ‘is not an incident along the way, but is an integral part of the theological inheritance of which they are trustees’.124

124 Agamben, 2007b: 160.

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As is briefly examined in Chapter 3, the modern state tradition, in fact, embraces aspects of the oikonomic machine of the government of the world and it presents itself sometimes as a State-providence and at other times as a State-destiny. Through the distinction between legislative power or sovereign power and executive or governmental power, the modern State assumes in itself and for itself the structure of the governmental machine. In the same sense in which theological-politics finds its central paradigm in absolutism, and the economic-providential paradigm finds its current paradigm in democracy (through the State that liberates the individual at the same time as it founds its freedom and entrusts it to the ministers or administrators of fate). As a consequence, collateral effects (known to us today mostly through the militarized effects of intervention and through the collateral effects of economic depression) are not mere effects of every act of government, but are actually constitutive of the government’s effectiveness. In modern government, general and particular will or power, positive and negative, tends to coincide so that to govern signifies to divide, and to produce collateral effects that form the condition of its effectiveness and execution. At the same time that the so-called art of government is dependent upon the production of collateral effects, the vicarious ontology (that it presupposes) requires that its praxis must always-already refer to its ungraspable bond or knot with a transcendent being (its higher kingdom, its so-called ‘Law’ of law or the so-called ‘Political’ of politics) that is now hollowed out and empty, more than ever before. Vicarious power is an incessant movement between powers that can do nothing without each other and whose origin is empty, void. A government of ‘men and things’ is made possible only through this ontological schema (that ultimately forms not just a theological and philosophical problem, but also one of politics and law); and the vocation of oikonomico-governmentality of contemporary democracies is not a mere incident, but an integral part of the inheritance that Christianity bequeathed to modernity. That today, more and more, the core of the foundational rhetoric and praxis of this government of the world lies with law (in its plane of extreme emergency), empty abstract principles (such as democracy, freedom, equality, prosperity and so forth) and an administrative apparatus of managing crises, which replace State-providence and State-destiny with a neo-governmentality, does not alleviate the problem but forms anew the glorification of law and politics that is still to be deciphered for what it is: that which it has, in fact, been from the start – an oikonomic governmental machine. This makes possible the liberation and the government (at the same time) of the world (a world that never before was as estranged, as free and as governed by an empty throne and which following Agamben’s genealogy in The Kingdom and the Glory has been so since at least the second century) on the basis of an impotent God, an absolute power or Law of law, which must at all costs conceal its emptiness in its supposed ungraspable, ineffable and

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negative definition of being and praxis. There is no substance or essence at the origin of power, but only governance (oikonomia). The price of the Trinitarian attempt to reconcile the division between being and praxis through divine providence or oikonomia is the rearticulation of two distinct planes (transcendent/immanent, general providence/special providence, intellectual knowledge/praxis and so forth) and this through a bipolar machine. The oikonomia in question forms as a zone of undecidability between a general law and an administrative apparatus. Oikonomia is the modal or functional relation between a glorified transcendental power (that appears but cannot be used) and an immanent praxis (that is invisible and yet effective).

Kingdom and glory The key question for Agamben, however, is yet to be disclosed: from where does the distinction between kingdom and government receive its pure intelligibility and maximum opacity? The answer is from glory. In 1935, during the same year when Erik Peterson argued against Carl Schmitt’s political theology (on which see the next chapter) that there cannot possibly be a Christian political theology, he wrote a treatise on the role of the angels in ecclesiology.125 The decisive function of angels (as members of the celestial hierarchy) in the Christian Church lies in the worship which they offer in heaven and in which the worship of the Church on earth has only an imitative part (the angels do, however, participate in the worship of the Church on earth). With the ascension of Christ, the Christians left the earthly city of Jerusalem and, accompanied by innumerable angels, came to the heavenly Jerusalem, where the glory of God and the Sanctus of the seraphim is now located. The liturgy of the earthly Church is integrated, thus, into the order of the heavenly where the unceasing hymn of God’s glory is sung. The angels in the heavenly city function as ministers of God’s glory and their worship of the glory of God is imitated by the hymn of the monks in the earthly Church. In the earthly Church, for Peterson, the angels participate in worship and always share in the administration of the sacraments (as well as in Church synods) in order to lend the earthly Church a public character (the worship of the cosmos as a whole) in the political sense of the term (Peterson uses the term politico-religious). The Church, in turn, becomes a minister of God’s glory. The angels are liturgical spirits who participated in the politicalreligious character of the Church of the Heavenly city (and could even be said to be responsible for this character as such). This ‘political’ character, however, is not related to the profane state, but is derived originally from the religious sphere. The only possible politics, for Peterson, in Christianity,

125 1935.

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relate to the Heavenly city. The Church’s politico-religious character is such that the Church can transcend all nations and all other languages in the world through its transcendental eschatology, whose vocation is to sing the glory and light of God for the whole universe. The angels are the guarantors of the originary relation between the Church and the Heavenly, properly political sphere. But, Agamben asks, in contrast, how are we to understand this public or ‘political’ character of the Church in the Heavenly city? The angels who were divided between contemplative and active angels form, through an angelological hierarchy, an administrative, oikonomic, bureaucracy in the Heavenly city and in this sense could be seen to be directly related to the paradigm of the divine oikonomia as a non-political paradigm. The public character of the Church consists solely in its sharing angelic worship, and it is only made possible through the sharing of the singing of the glory of God. In this sense, for Peterson, the liturgy culminates in the ‘trisagio’ where God is glorified through the triple acclamation of Sanctus, Sanctus, Sanctus (which the angels also continuously worship).126 If, now, the political or public character of the Church (Ekklesia) of the Heavenly city is based on the participation of the angels and in the imitation of their hymnology and acclamations that glorify God, then not only the Church, but the people (Volk) of the Heavenly city share in the vocation of imitating the worship of the angels and the overall angelic function of glorification. In this sense the ‘political’ vocation of men is an angelic vocation and the angelic vocation is, in turn, a vocation of singing the glory of God, the song of light.127 The angelic vocation is dual: on the one hand the angels are ministers (administrators) of God and on the other hand they are assistants of God in his contemplative power. In this manner, the angelic function is fractured between its ministerial function and its mysterious function, reminiscent of Kafka’s assistants and functionaries.128 The glorious, contemplative and mysterious function of the angels is also reflected in the number of angels that are seen, in their mysterious vocation, to exceed the number of angels in their administrative function. Yet the administrative or active angels are always given more attention. It is worth noting, Agamben points out, that perhaps the first reference to an infinite mass of beings by the term of multitude refers not to men, but to the citizens of the celestial city.129 The angels, thus, perform a strategic role in the functional transformation of the mystery into a ministry and of the ministry into a mystery. The prototype of the sacred hierarchy is no other than the oikonomic Trinity and, in this sense,

126 127 128 129

Ibid: 215; see Agamben, 2007b: 164. Ibid: 230; see Agamben, 2007b: 164–5. Agamben, 2007b: 168. Ibid: 169.

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the activity of government in the divine oikonomia corresponds to a thearchy. Divine government can be seen as entailing a dual function: one that can be defined as thearchy (divine government; a concept much more forceful than the modern theocracy) and another that can be termed diakosme¯ sis (oikonomia, or ordinary disposition).130 The Trinity is, thus, always integrally related to the divine thearchia from which derives the hierarchical government of the world. This hierarchy forms a sacred action that extends to the whole world (divine and human) and, as such, to the nations and the people of the earth. The distinction between kingdom and glory receives its intelligibility in this sense because it is through the opposition of ministers and assistants that the difference of kingdom and government becomes effective. Furthermore, in this manner, it also receives its opacity since what can politics be if not of government, but of liturgy; not of action, but of hymn; not of power, but of glory?131 The mystagogical apparatus and the hymnological vocabulary mutate the Neoplatonic elements and find in this sense the function of an apparatus, which can only be an oikonomic governmentality. Ineffable and unnameable is the invisible principle of power, the thearchia, the triadic manifestation and the hierarchical government of the world. The term thearchia, then, is the principle of order and of government. Hymnology sings the undecidability of the governmental hierarchy, in the sense that hierarchy as such is a hymnology. This helps explain the use of divine names such as Saint of saints, King of kings, Reign of the now and of eternity, Kyrios Kyriou, God of gods, in a manner that perhaps prefigures the use of terms like ‘Power of power’ or ‘Law of law’ to which the previous chapter referred.132 What underlies such divine and terrestrial names of undecidability and anonymity is ultimately the transformation of the Pauline economy of mystery into a mystery of economy. It is particularly illuminating to consider the theological question of what the angels do after the last judgment. In Aquinas, for instance, the oikonomia is not eternal but temporal and it is to be completed on the day of the last judgment. The angels can survive the last judgment only through hymnology (doxology), their active, oikonomic role, being complete. The angels through their katargesis (Paul) continue their function only through their glorification of God. Glory is, thus, the figure that characterizes the divine inoperativity after the last judgment. Glory, after the last judgment, abolishes the eschatology prevalent before and prolongs to infinity the story of the government of the world, while at the same time it incessantly refines the final character of the proper paradigm of oikonomia as that of glorification.133 130 131 132 133

Ibid: 171. Ibid: 187. Ibid: 172. Ibid: 181.

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Angelology coincides immediately with a theory of power, so that the angel is the figure, par excellence, of the government of the world.134 This results from the fact that the angelic names identify with those of terrestrial powers: archai, exousiai, kyriote¯ tes, principatus, potestates, dominationes.135 This is evident in Paul in whose letters it is not possible to distinguish, Agamben notes, the names of angels from those of world authority. Archai and exousiai are common names for indicating the generic mode of human power.136 The angels on every occasion of divine power represent the obscure (daimonic) aspect of God that cannot simply be cancelled. It is in this very sense that the Pauline messianism must be read (in direct contrast to Peterson’s antimessianism): the Messiah deactivates and renders inoperative (katargesis, which is not simply to destroy) all the law that the angels, in this world, reconcile with God and, in this manner, all the things, such as thrones, dominations, principates and powers. The end of law, in this sense, is not to destroy the law, but to render it inoperative (ineffective).137 As a result glory comprises all the liturgies, hymns, ceremonies and symbols of divine thearchy (which include their terrestrial equivalents in royal and imperial symbols, insignia, ceremonies, oaths, salutations, acclamations, triumphal processions, coronations and so forth, which borrow and participate in the angelology and glorification that turn actions into sacred actions and sacred actions into acts of government);138 more originary, therefore, than the counterposing of theology and politics is the glory where both coincide. The secret meeting point of theology and politics is glory.139 The most difficult question to answer then, for Agamben, is not that of ‘political theology’, but to ask: what is the relation that intimately links power and glory? Why are ceremonial aspects necessary to power? If power is essentially force and effective action, why must it enclose ritual acclamations and songs of light, coronations, imperial ceremonies and an immutable protocol? The preliminary mythological answer to this question appears to be that glorification and protocols inspire obligation, justification and reverence. This may be true to an extent but it is not the most profound and original connection between power and glory. The connection at stake entails both the political and the religious spheres. Economic dispensation and government are intimately linked to an acclamatory apparatus or protocol, a lex ceremoniarum. The question is ultimately not ‘what is glory?’ but rather ‘what modes

134 Agamben undertakes a detailed archaeology of glory in Chapter 8 of The Kingdom and the Glory, the richness of which cannot be summarized here. 135 Ibid: 183. 136 Ibid. 137 Ibid: 184–5. 138 See Alföldi, 1980 and Kantorowicz, 2004. 139 Agamben, 2007b: 215.

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of glorification (doxazein) are there?’ The first and not so helpful question has often been answered through the aestheticization of theology and politics.140 Instead, Agamben suggests, the Trinity can be seen as such (and as a whole) as a doxology. When modern theologians distinguish between a Trinity of oikonomia (of revelation) and a Trinity of immanence (of substance) they must be read as referring to one Trinity and not to two: glory is the logos in which the two are reconciled. In this way the governmental machine always consists of the articulation of this polarity, in which it can be said, now, that the theo-doxological machine results in the correlation between the immanent Trinity and the transcendental Trinity, where the two aspects glorify each other and result in the other, reciprocally. The government glorifies the kingdom and the kingdom glorifies the government. The oikonomia of the Trinity is, in this sense, an oikonomia of glory. If in the last judgment the anarchic oikonomia is finished and deactivated, a figure of being outlives that of its economy and reveals that the centre of the machine is empty. Glory is not the sublime splendour that emanates from the void, as philosophers banally all too often claim, but reveals and veils, at the same time, the presupposition of a central vacuity at the heart of the bipolar machine of Western power. The conventional claim to the ‘sublime’ nature of glory and its circular motivation (where glorification is devoted to glory because it derives from it) institutes a mystery at the very place where the freedom of ‘men’ emanates. The being and the liberty of ‘men’ depend, in this view, on the act of glorification (which is an act of rendering sacramental thanks, an eucharistia). Creatures, in this manner, are themselves seen, first, as essentially a glorification of glory and glory forms the divine attribute in them, their sublime bare essence (and this in order to safeguard and produce eternal obedience).141 In this sense the ‘political’ element becomes clear in that liberty consists in the glorification of the sovereign and the sovereign consists, equally, in the glorification of liberty (through insignia, ceremonies etc., which are and must be glorious).142 This circular argument entails a paradox: the paradox of glory is enunciated in the manner in which glory is said to be exclusively of God and as such sharing in the eternity of God, without which nothing can be created. In this way, glory is glorification through which all creatures are incessantly devoted to God, and glory therefore derives from the very glory of God as its echo.143 The supreme end of man is seen as glory. The kingdom acts as a seemingly pre-political signature. Glory, more originary than either politics or theology, is the place of their

140 141 142 143

See Balthasar, 1961 and Barth, 1958. Agamben, 2007b: 236–8. Ibid: 238. Ibid: 238–9.

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indistinguishability. The study of the tradition of liturgical praises (doxologies) shows that doxa, glory, splendour, are attributed to God in a way that is very proximate to the way in which it is attributed to the monarchic ruler.144 The more originary paradox at stake is, then, that the specific value of divine glory constitutes the ultimate ‘end of man’, yet rests curiously on the fact that neither God nor ‘men’ have a pre-defined utility. God is an act of Light and hence, through glorifying Him, ‘men’ participate in his most intimate faceless life, the centre of which remains empty and is presumed as pre-political, as bare or pure power. The Homoousios doctrine of the fathers attains, here, its most original paradox: a proximity or intimacy that is declared in this doctrine rests in the glory of God’s being and its glorification through doxology. Doxology and liturgy sing to the inexplicable contained within them. That the liturgies in so doing borrow from the profane ( juridical) sphere of ceremonies and acclamations (as Alföldi and Kantorowicz have shown) in order to produce glory, suggests another reason as to why ‘political’ problems in the profane sphere become more intelligible and clear if seen in relation to the oikonomic paradigm.145 Liturgy and glorification, or doxology, are not mere ornaments of power (as the theologicopolitical approach suggests), but, instead, are what produce power as such. For it is in the juridical manner of theological and imperial acclamations and ceremonies that Agamben has located the root of the threshold of indistinction, named glory (wherein magic, religion and law are rendered indistinguishable). It is through this that, after the last judgment, the paradox of glory becomes most evident in the anonymous emptiness of power that it glorifies: the ultimate end of men after the last judgment coincides with the cessation of all activity and work since in paradise there is no government. This makes the doxa of glory coincide with the para-doxon of sovereignty in the extreme plane of the state of exception in which we live. The glorification of the Trinity includes the glorification of humanity. If glory belongs to the kingdom and not to governance, glorification is mutual. More so, glorification directly produces glory and as such it can be said to be more originary than glory. Glory, however, ultimately points towards the end of the oikonomia. For Agamben’s approach, however, messianic redemption renders the Trinitarian oikonomia or governance inoperative. Glory maintains the distinction between an immanent (God’s self-knowledge) and an economic Trinity by being itself the point of indistinction where the two coincide. Glory interweaves a symmetrical dialectics between two trinities so that the whole of the

144 On the surprising proximity of divine glorification to public opinion, consensus and government by consent, see the next chapter. 145 Agamben, 2007b: 250–3.

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economy must become glory and the whole of glory must become economy. Despite the aspiration towards symmetry, however, glory entails the cipher that points to the time of the end. In this sense, glory shows the vacuity of the divine kingdom that is alwaysalready directed towards being rendered inoperative in messianic redemption. If God is worthy of praise and glorification, this is because his glory is equal to his activity (which is an impotence, an inactivity). The work of God is human glorification and human glorification, points to the central vacuity of the oikonomic machine. God deserves and requires glorification as inherent in his very being, without however needing it. If God is the eternal sovereign, his glory is always-already at its fullest. Yet glorifying God produces God ‘as’ glorious through doxology: glorification is not a mere aesthetic ornament of power, but is absolutely required for the production and maintenance of the governmental machine. The apparatus of glorification which shows ‘God’ forth (and, in different, but equally solemn manner, Kings) is necessary because of the constitutive inoperativity of God’s being, of sovereign being (an oikonomia operates through the adaptive preparation of an empty throne). If humanity is seen as the instrument of glory, it is because the central vacuity of the machine is grounded in the veiling-over of the vacuity or nonessence of human being as such (in the sacramental notion of bare life, as it will be examined in Chapter 4). The constitutive inoperativity of human essence threatens the machine of governance with a fundamental aporia and it is this aporia that the machine wants to capture and veil through incessant glorification. To end the mythologeme of sovereignty does not mean to propose a new theory of sovereignty (and to continue the search for its essence), but rather to study its production through oikonomia and glorification, which expose sovereignty as an empty throne that remains in force without any significance. Yet, the decisive point lies neither on the side of glory and liturgy, nor on the ministerial guiding of a household (oikos) through the pitfalls of its endemic and, now, permanent crisis. It lies, instead, in their mutual exposure and in the redrawing of their constant (if constantly suppressed or marginalized) coordination as the government of ‘men and things’. If law and religion are connected, they are so, in glory.146 Glory in this sense occupies the discourse of the post-judicial inoperativity in the eternal Amen that resolves all work and every word, divine and human. The eternal Sabbath or peace that follows the last judgment coincides with the supreme glory, and if the glory in question, through the ages, has the form of an eternal katapaysis or Sabbath, it is then time to interrogate in a preliminary way, before we return to this in Chapter 6, the proper sense of the intimacy between the Sabbath or inoperativity and glory. What is unthinkable

146 On this see Schütz, 2009.

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and unsayable in this sense is not the ungraspability of God, but the inoperativity that is veiled behind the splendour of glorifying insignia, rituals and ceremonies. This means that the centre of the apparatus of governmentality, wherein kingdom and government incessantly communicate while remaining distinguished, is in reality a void, an empty throne (a pure power that remains in force without significance). Only the counter-messianic ‘theologicopolitical’ postponement of the katapaysis or the katargesis of such an empty centre of power can find its force in the presupposition of the alleged prepolitical and essential centre that the governmental machine must presuppose at every moment and at every cost in the form of its glory.147 The emptiness of the throne is not of regality, but ultimately of glory. The void is the figure of the sovereignty of glory (since sovereignty is nothing else but glory). Glory is conceived as preceding the creation of the world and surviving its end; and the throne is empty not only because glory, as it coincides with the divine essence, does not identify with the latter but also because, and most intimately so, glory is the centre of inoperativity.148 The apparatus of glory finds its perfect cipher in the empty throne and, in Agamben’s exposition, the theological apparatus of glory coincides with the glory found in the profane sphere of law and politics, in that it forms the epistemological paradigm that permeates the supposedly arcane centre of power. Inoperativity forms the glorious nutrient of every power. The fact that this inoperativity also forms the so-called proper messianic human apraxia in the eternal katargesis or Shabbath lends support to the view that in this sense inoperativity forms the centre of the metaphysical operations of anthropogenesis, and veils the absence of an ‘essence’ or ‘nature of man’ through the presupposition of the so-called sphere of pure power or pure being as bare power and a form of subjection that takes the name of bare life: the nutrient of every transcendental ‘Power of power’ or ‘Law of law’.149 An oikonomia of glorification is the presupposition that makes the assumptions of ‘political theology’ possible (that is, it renders the presupposition of glory possible), so that the real problem in any investigation of power is not sovereignty but government, not law but its policing and administration by its ministers. It is the allegedly incessant movement between oikonomia (biopolitics) and political theology (sovereignty) that this bipolar governmental machine aims to keep in motion and which any genuine politics or ethics will have to halt. If what is widely experienced today, at least in the West, is the so-called end of politics, then through exposing, in Agamben’s genealogy, the irreconcilable split and consummate mutual exteriority of non-governing power (glory) and

147 Ibid: 264–6. 148 Ibid: 267–8. 149 On this see Chapter 6.

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governing non-power (oikonomia/government) those that speak of such dissolution will, at least, now know what they are in fact talking about. In the place of politics or the politics of the sovereign imperator what is taking place with increased intensity over the last 30 years is the latest form of a more effective and better networked oikonomos, or caretaker, that issues no imperatives (and falls into no sovereign paradoxes), but instead communicates and disseminates ever-critical information with regard not to the good life (eu zen), but to mere survival in the face of crisis after crisis. The next chapter turns to examine how the schema sovereign poweroikonomia-glory (that unites the ‘theological’, the juridical and the political, and forms their supposed glorious arcanum in a threshold of indistinction) operates in later modernity in the sphere of so-called sovereign selfgovernment (‘civil science’).

Chapter 3

Secular sovereignty: a gigantomachy over a void

Introductory note What the Church fathers referred to as theologia (on God’s nature) and oikonomia (on God’s praxis), finds in politics and law a proximate bipolarity in ‘political theology’ (the transcendent nature of the sovereign) and government or administration (which refers to ‘the government of men and things’ as a matter of immanent praxis). The two paradigms are functionally related and it is through the understanding of their problematic presupposed relation that the general problem of power, at an ontological level, can be shown: the fracture between being and praxis or form and life. It was seen in the first chapter how, within the politico-theological discourse of authoring and celebrating the legacy of the first political paradigm in question, lies a fracture between being (essence) and acting (existence), form and life. It was also suggested that the so-called sacredness or transcendence of the King in his persona ficta (his sovereign body) entailed itself an internal fracture between being and praxis (this was seen, for instance, with regard to the royal trials in England). It was suggested that the persona ficta of the King had no origin other than in an empty throne, the anarchic time-space of sovereignty (the image of a do-nothing King). The impasse through which so-called secular power is exercised today ‘in the name of the People’ can be better understood if seen through the problematization of this fracture between being and praxis. This is the fractured terrain wherein the presupposed imagistic notion of sovereignty has been played out from the early days of the alleged original divine law to absolutism and modern democracy: on the one hand, sovereignty or today secular civil society, a comforting and therapeutic image of eternal peaceful life; and on the other hand, anonymous administration or government. The trivium where the functional relation between the two juridico-political paradigms resides is, as it was suggested in the previous chapter, glory, which from theological doxology to ‘secular’ acclamations and the formation of the modern public sphere (through the apparatuses of public opinion and consensus – evident in nation-building, parliamentarianism, political and theoretical rhetoric,

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bureaucratization, statistics, marketing and so forth), continues the mythologization of a supposed original knot between power and life or violence and life. This work turns in the next chapter to the life that is captured in such glorification of sovereignty. The present chapter investigates the fracture between being and praxis in relation to the reformation of the empty throne in so-called secular sovereignty or civil society. Excursus: A well-known understanding of the amalgam of political theology has its root in the conservative discourses on political theology and secularization that took place in Germany from 1918 onwards. In the nineteenth and twentieth centuries the inheritance of ‘political theology’ was perceived, primarily by conservative thinkers related to the Catholic Church, as canonizing perceptions of an alleged evolving secularism in the midst of perceived cultural and political decay.1 In the German scene, in particular, from the 1920s, there emerged a parallel crisis in Weimar theology and public constitutional law. In theology the absoluteness of Christianity was confronted with the crisis of historical relativism, while in law the now-dominant neo-Kantian school of jurisprudence attacked the concepts of the state and of sovereignty by arguing for the primacy of law over the state.2 The comforting fictions of God and State were seen as superfluous and consequently the earlier appeals to divine right or absolute monarchy were viewed as illegitimate and unnecessary.3 The immediate intervention of the sovereign (monarch) into the instituted legal order is analogically refused and excluded. Yet, crucially, the relationship between politics and theology was further revived in the controversial enunciation of the political-theological paradigm in 1922 by Carl Schmitt (1888–1985), who argued in his classic thesis that: ‘all the decisive terms of the modern state doctrine are secularized theological terms’.4 Schmitt, using Kelsen’s arguments, as well as elements of his teacher’s Max Weber theory on secularization, argued that the Weimar crisis (now that God as a transcendent foundation of state sovereignty for absolute monarchy had been subject to scepticism) could only be resolved through an appeal to meta-juristic sources.5 The fundamental contradictions of the Weimar constitution, according to Schmitt, could be alleviated through a commissarial dictatorship (as a temporary and restricted type of dictatorship).6 The Schmittian thesis on political theology derives as a secondary effect of ‘secularization’. Yet, contra-Schmitt, secularization may be viewed not as an

1 2 3 4 5 6

See Donoso Cortés, 1925/1979. See Kelsen, 1920. See for a detailed discussion Stroup, 1987. 1934: 49. Ibid. As argued in Schmitt, 1928.

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effect of a political paradigm, but as firmly contained in the oikonomic paradigm that Western politics inherits from Christianity. As Agamben explains, in a strictly juridical sense, the term saecularisatio designates the return of a religion in the world amidst the conflict that took place in Europe between the state and the Church as to the expropriation of ‘ecclesiastical goods’.7 Schmitt’s strategy, Agamben writes, is the opposite of Weber’s: whereas in Weber the secularization process is an aspect itself of the process of de-theologizing the modern world, in contrast, for Schmitt theology continues to be present and active in modernity.8 This does not necessarily imply, Agamben observes, an identity of substance between theology and modernity, or a perfect identity of significance between theological and political concepts. Instead, it suggests a particular strategic relation that signifies in political concepts their presupposed remnant origin in theology.9 Schmitt observes the fact that the fiction of a ‘clear’ division of religion and politics was already valid during liberalism in the nineteenth century. Religion appeared to be a matter of the Church, a private domestic matter, and politics was viewed as a matter of the State. This was so until the time ‘the state lost its monopoly on the political level and when other – effectively fighting political dimensions – rendered such a monopoly disputable’.10 Schmitt, in fact, differentiates political theology from theology.11 Schmitt does not speak about the affinity of the Church to certain forms of political unity (monarchy or democracy), but he ‘vindicates a unique political form of the Roman Church as a visible representation of the historical fact of Christ in the history of the world – the Christ that became man’.12 As has already been suggested in the previous chapter, the God that became man is the defining event of a particularly crucial episode in Western Christianity. Political theology, in this sense, is intimately tied to Christology. For Schmitt secularization was a diachronic process, which as a process of ‘neutralization’ had begun with the removal of religion from the public sphere after the Counter-Reformation. In addition, the relationship of politics to religion entailed, for Schmitt, a structural analogy whereby the shift from absolute monarchy to modern mass democracy was synchronic with the move from deist theologies of transcendence to modern theologies of immanence.13 In alignment with Agamben’s thought on this matter, it can be said that ‘secularization’ is not really a concept but a signature (following Enzo

7 8 9 10 11

2007: 14. See ibid: 15. Ibid: 16. Schmitt: 1970: 24. ‘Theologie . . . ist die in Formen konkreter Argumentation sich vollziehende Elongatur der Logos-Offenbarung’; ibid: 21. 12 See ibid: 26–27. 13 See Stroup, 1987: 335.

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Melandri’s conception).14 In a sign or a concept, Agamben writes, reference is made to a specific interpretation or to a determinate sphere in order to exit the semiotic and to construct a new significance or concept.15 A signature, in contrast, dislocates the concepts and the signs to another sphere (here, from the sacred to the profane and vice versa) without any semantic redefinition. The scope of the philosophical archaeology that Agamben performs in The Kingdom and the Glory focuses on, precisely, the genealogy of the term secularization as a signature, which studies the transformations and transmutations of the signature in question in its alleged ‘pure state’ as a parallel history to that of ideas and signs. Secularization, in this sense, in the conceptual system of modernity, stands as a signature that paradoxically re-turns the so-called secular world to theology. What is decisive, each time, Agamben writes, is the way in which this signature intends to return to the operation of a theological signature; so that secularization can be seen, in this way, as a specific instance of Christian faith, which for the first time ‘opens men to the world in their historicity and worldliness’.16 ‘The secularization of the world’ is a signature of the bipolar structuring of a divine oikonomia, and it is only through its function as such that its problematic appropriation in politics and law can be deciphered. Secularization, then, paradoxically keeps drawing modernity to its theological (oikonomic) roots. For Schmitt, traditional Christian theology is replaced by a comprehensive metaphysical system on the basis of the belief that technology and rational procedure will provide the ultimate neutral ground for civility.17 This transition is only achieved, for Schmitt, by liberalism’s presupposition of the religion of technicity (die Religion der Technizität): the mastering of nature as an unlimited reserve of power.18 The liberal rule of law participates in the spiritual struggle among faiths, allegedly left behind in the state of nature, through its nameless religious faith in technicity and integral order that acts as a katechontical power of structural restraint.19 Schmitt (at least in his earlier writings) regards the roots of the modern State as derived from the Church and its authoritative theologico-political claim to re-present the divine order. Hobbes, for Schmitt, remains a Christian liberal, while modern liberalism, in later transformations, has advanced the neutralization of the liberal State on the basis, for Schmitt, of Judaic influence.20 This, however, is not based on a theologico-political paradigm,

14 15 16 17 18 19 20

See Melandri, 2004. 2007: 16. Ibid. 2001: 35–46; and 2002: 89. 2002: 93. See Meier, 1994 and Meuter, 1984. In claiming this, Schmitt distorts, not only Hobbes and Spinoza, but also Mendelssohn. See Mendelssohn, 1783.

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but on an economic paradigm rooted in the Trinitarian dogma of the Church.21 In the second half of the 1960s a debate took place in Germany over the problematization of secularization, which involved, in their differing ways, Blumenberg, Löwith, Murquard and Schmitt. In the 1970 sequel to the first volume of Political Theology, Political Theology II: The Legend of the Demise of All Political Theology, Schmitt revised a number of his earlier views mainly in response to the debate that took place in the mid-1960s. The origin of the debate was, perhaps, Löwith’s theory of progress as secularized eschatology as proposed in his Meaning in History: The Theological Presuppositions of the Philosophy of History.22 Löwith centres his argument on Hegel to argue that the modern idea of progress suppresses and yet carries forward in secularized form the Christian relationship to eschatological teleology. In effect, the philosophy of history of idealism and the idea of progress of the Enlightenment are a secularization of the eschatological pattern.23 Löwith’s work was not seriously criticized until the 1960s and it was Hans Blumenberg, a German philosopher, who undertook the task. Modernity should be construed, in Blumenberg’s understanding, as the second overcoming of gnosticism. While Augustine may have gone a long way to solving the early problem of gnostic dualism metaphysically (by relating eschatological judgment to the Stoic doctrine of cosmic providence and as a result holding humanity responsible for the existence of evil), Blumenberg argues that in Augustine gnosticism remains disguised in the form of a hidden God who continues to exercise his absolute sovereignty. Blumenberg writes: ‘the Modern Age began not indeed as the epoch of the death of God, but as the epoch of the hidden God, the deus absconditus – and a hidden God is pragmatically as good as dead.’24 The transposition of divine providence in the world is performed by secularization theorems, as in Hegel’s famous dicta: ‘World history is the tribunal of the world’ which transferred the Christian last judgment into the secular sphere.25 Schmitt is cautious in Political Theology II to undermine any simple claim to a homology between the two terms of ‘politics’ and ‘theology’ in his composite title of the work, in the sense that he seeks to avoid both the simple

21 In his later writings and in particular in the second edition of the Political Theology in 1934 Schmitt argues for the autonomy of the political from the Church and distances himself from the Catholic reform movement of his time. 22 1952. 23 1949: 2; see, for Löwith’s reading of Hegel, Löwith, 1964. Wilhelm Dilthey was criticized by Martin Heidegger on similar grounds, though in a different manner to Löwith’s, for his argument on the development of Western historical consciousness. See Heidegger’s early lectures from 1921 published in 1995, LX, 159–173. 24 1966: 346. 25 As quoted in Löwith, 1949/1952: II, 308.

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alternatives of arguing either for a mere transcribing of the theological into the political or for a re-theologization of the political through reference to its theological origins. Yet, this ‘common front’ between Schmitt and Löwith in light of Blumenberg’s critique and of Löwith’s pronouncements on eschatological teleology, reveals, according to Agamben’s analysis, a different commonality. The debate between the two thinkers is not really based on secularization, despite evidence to the contrary, but rather on the question of divine oikonomia. In Löwith (the eschatology of salvation of which he speaks and that the philosophy of idealism represses) and in Schmitt (the utilization of the Christian Emperor as the katechon (restrainer) who delays the ultimate eschatological end) are not elements of a political theology as they claim, but rather elements of a non-political paradigm derived from Christian theology: that of a divine oikonomia. For Agamben, this was implicitly understood in Hegel (who spoke of an equivalence between his thesis of a rational government of the world and of the theological doctrine of divine providence and presented the proper philosophy of history as a theodicy);26 and more explicitly and crucially in Schelling who, at the end of his Philosophy of Revelation, summarizes his philosophy in the theological figure of an oikonomia: ‘The ancient theologians distinguished between an akratos theologia and an oikonomia. [. . .] And it is this domestic economy (oikonomia) that we need to indicate.’27 Agamben notes that in Schelling’s thought of the philosophy of revelation as a theory of the divine oikonomia, which introduces in God an ontology and a praxis on the basis of Paul’s original formulation of the doctrine of divine economy, the introduction of an absolute and an-archic freedom is seen as a functional supplement to the theological doctrine of oikonomia.28 Schmitt’s move to exclude concrete eschatology signifies his misunderstanding of an economic paradigm for a paradigm of political theology.29

26 For an exploration of Hegel’s dialectic as an exegesis of Trinitarian Christology and also for its relation to Karl Barth’s theology see Taubes, 1954: 231–243. 27 As quoted in Agamben, 2007b: 17. 28 Paul, Ephesians 3, 9. See Agamben, 2007b: 17–18. 29 This becomes even more evident within the context of the disagreement that ensued between 1935 and 1970, between Schmitt and another of his critics: Erik Peterson; See Peterson, 1950: 145–7 and Peterson, 1928. Common to both Peterson and Schmitt is a theological concession that can be defined as katechontical, which each time delays the coming of the King and the end of the world. In Schmitt, this delaying element is the Christian Emperor, while for Peterson it is the refusal of the Jews to believe in Christ. In both, Agamben notes, there is a history of humanity founded in interim on the delay of the coming of the true King; Agamben, 2007b: 19. In Schmitt’s case the delay coincides with the sovereign power of the Emperor while, in the case of Peterson, the suspension of the Kingdom depends on the conversion of the Jews, which founds the historical existence of the Church. It is only because the end of the world is not imminent that the katechontical power can acquire its legitimacy and its force. Between the two thinkers the real point at stake, in Agamben’s reading, is not the

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The sovereign state and the art of government The neo-governmental structure that would gradually move away from promoting civil well-being would need, in the absence of a transcendencesuffused image of sovereign power, to confront ever-precarious situations (rather than the fulfilment of transcendental principles). To do so it required a new subject and it is this peculiar form of subjectivity that came to be filled by the artifice of the State. The peculiar form of the power of the State would gradually be revealed to be a powerless subject. The English historian of ideas Quentin Skinner in his The Foundations of Modern Political Thought writes: By the beginning of the seventeenth century, the concept of the State – its nature, its powers, its right to command obedience – had come to be regarded as the most important object of analysis in European political thought. Hobbes reflects this development when he declares in the Preface to his Philosophical Rudiments, first published as De Cive in 1642, that the aim of ‘civil science’ is ‘to make a more curious search into the rights of states and duties of subjects’ (pp.x,xiv). While something like a ‘civil science’ or a ‘political science’ may arise for the first time in closer proximity to the modern sense of the phrase, through Hobbes or Budé, it was the renewed interest in Roman law and in Aristotle’s Politics from as early as the twelfth century that grounded all political discourses in relation to the Church and State power struggles.30 During the twelfth and thirteenth centuries the idea of prevalence of divine and natural law over positive human law was still at work, as was also the idea

admissibility of a political theology, but the nature and identity of their respective katechon, which delays and ultimately eliminates ‘concrete eschatology’. What is decisive is the neutralization of the philosophy of history that is oriented towards salvation. Agamben writes: ‘At the point when the divine act of oikonomia would reach its end with the coming of Christ, it produces an event (the conversion of the Jews; the Christian empire) that has the power to suspend the eschaton.’; ibid: 20. The exclusion of concrete eschatology transfers historical time into a suspended time, in which every dialectic is abolished and the parousia of the true King is not produced in history. The prevalent idea that the elaboration of the Trinitarian doctrine was sufficient to demolish the theologico-political concessions of a divine monarchy is not at all evident. Instead, as Agamben suggests in The Kingdom and the Glory, the Church fathers attempted, precisely, to conciliate monarchy with the triune personality of the divine through their elaboration of the doctrine of the Trinity.28 For Schmitt political theology founds a politics in the world where the Christian Emperor acts as katechon, while in Peterson the only true political act in Christianity excludes the earthly kingdom and is only truly political as the presupposition of faith in the Triune God through the only political praxis available to the Church: the liturgy. What brings the two thinkers closer is the undisclosed problem of divine oikonomia, however, and not their differing views on political theology. 30 Skinner, 1978: 350. See also Post, 1964 and Geuss, 2001.

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of a mixed form of State (evident in the Church-State struggle, as well as in the feudalist remains within the State). The principle of legibus solutus, as was seen in Chapter 1, was transferred from Rome to the Empire and later, in the famous conciliar controversy, to the Church itself. Throughout the Middle Ages the principle of legibus solutus was frequently declared to be subject to the consent (a form of doxological acclamation) of the populus (the people perceived as a mass of subjects). In addition, the attempts to think of the State ‘as’ the subject-matter of a political science would not have been possible were it not for the acceptance of the idea that each regnum or civitas was independent from any external power. Skinner explains: The acceptance of this idea was scarcely possible so long as it was agreed that the princeps of Justinian’s Code should be equated with the Holy Roman Emperor, who thus came to be treated as the sole genuine bearer of Imperium in medieval Europe. One of the most important steps towards the formation of the modern concept of the State was thus taken when Bartolus and his pupils insisted that the civitates of the Regnum Italicum were not merely in a position of de facto independence from the Empire, but ought to be legally acknowledged as universitates superiorem non recognoscentes, as ‘independent associations not recognizing any superior’ in the conduct of their political affairs.31 Simultaneously, Skinner enlists another precondition for the prevalence of the idea of the State in political affairs, that is, the notion that each independent regnum should enjoy supreme authority within its territories as a law-making power.32 When the jurisdiction of the Church began to be challenged, the foundations for the State as the sole bearer of imperium had been laid. What is even more crucial in the course of these developments is that the gradual establishment of the idea of the State presupposed the notion that ‘political society is held to exist solely for political purposes’.33 The scope of politics was seen, gradually, as the ‘art of government’, of a care-taking oikonomia. The development of an ‘art of government’ in a systematic fashion was central to the ‘civil science’ that Hobbes declared in 1647, but it was derived from a contemporary in France, Jean Bodin. Bodin reveals himself in his Six Books of the Commonwealth as an unyielding defender of absolutism, ‘demanding the outlawing of all theories of resistance and the acceptance of a strong monarchy as the only means of restoring political unity and peace’.34 It is

31 32 33 34

Skinner, 1978: 351. Ibid: 351–2. Ibid: 352. Ibid: 284.

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interesting to note in passing that Bodin’s definition of the State is formulated on the basis of the family (in the realm of the oikos). Bodin writes: ‘Respublica est familiarum remunque inter ipsas communium, summa potestate ac ratione moderata multitudo’ (The State is an aggregation of families and their common possessions, ruled by a sovereign power and by reason).35 The notion of familial authority is conceived in proximity to the Roman pater familias. The respublica consists of citizens subject to the same sovereign power.36 Hence, no public act of resistance by a subject against a sovereign can ever be justified. Of course Bodin acknowledges some qualifying limitations, but these should only be seen at the fringes of his central premise.37 Bodin counters the resistance theories of the Huguenots and claims that: ‘it is not lawful for a man not only to kill his sovereign prince, but even to rebel against him, without an especial and undoubted commandment from God.’38 The fundamental aim of government, and hence of politics, is to secure order, rather than liberty, and sovereignty in its absolute sense (unrestrained from laws) becomes the primary strategy for the protection and survival of the republic. Bodin defines sovereignty (suprema potestas) as ‘Sovereignty is supreme power over citizens and subjects, unrestrained by laws’ (Supreme potestas in cives ac subditos, legibus solute).39 The person ‘in whom sovereignty rests’ is required to ‘give account to none, but to the immortal God alone’.40 A mixed form of government is held to be impossible and, fundamentally, sovereignty must be self-legislative in character. Skinner writes: The point is elaborated in the chapter entitled The true marks of sovereignty (p.153). [. . .] ‘the first and chief mark of a sovereign prince’ – the one which may be said to contain all others as aspects or implications – must be the power ‘to give laws to all his subjects’ without seeking the consent ‘of any other greater, equal or lesser than himself ’ (p.159).41 Such sovereignty is absolute and self-legislative and the only limitations to this supreme power, that are assumed but nowhere defined, are the leges divinae, naturae et gentium. Bodin will, thus, be able to distinguish between the State and government on the basis that the State is determined by (the number of ) those in whom sovereignty is vested and the form of government

35 Bodin, 1576: Lib.I, cap.i. 36 Ibid: cap.vi. 37 Skinner notes that Bodin, in discussing only legitimate sovereignty, is able to concede ‘that a ruler who is a tyrant ex defectu tituli – in the sense of being a usurper – can always “be lawfully slain” by “all the people or any of them” ’, 1978: 219. 38 Bodin, 1576: 224 as quoted in Skinner, 1978: 286. 39 Bodin, 1576: Lib.I, cap.8: 84. 40 Ibid: 86. 41 As quoted, with commentary, in Skinner, 1978: 289.

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is distinguished by the manner in which administration of the sovereign’s will takes place in terms of its praxis. The principle and logic of absolute sovereignty is always one, undivided and perpetual in its nature (essence, being), while the actual administration of the sovereign’s will and discretion is a matter of art. Government as a government of ‘men and things’ is distinguished gradually from sovereignty, as Michel Foucault suggests in his Security, Territory, Population, and does not acquire its consistency before the eighteenth century. It’s acquired ‘consistency’, however, reasserted a claim to an ‘autonomous origin’. Foucault, quoting La Perrière, writes: ‘Government is the right disposition of things that one arranges so to lead them to a suitable end.’ Government therefore has a purpose, it arranges things [. . .] and it arranges things [for an end]. Here again I think government is very clearly distinguished from sovereignty. Of course, sovereignty is never presented in philosophical and juridical texts as a pure and simple right. Neither jurists, nor, a fortiori, theologians ever said that a legitimate sovereign was simply entitled to exercise his power, without further qualification. The sovereign, to be a good sovereign, must always propose an end, that is to say, as the texts regularly say, the common good and salvation of all. [. . .] In any case what characterises the end of sovereignty, this common or general good, is ultimately nothing other than submission to this law. This means that the end of sovereignty is circular; it refers back to the exercise of sovereignty. [. . .] Government is defined by La Perrière as a right way of arranging [disposer] things in order to lead [conduire] them, not to the form of the ‘common good’, as the texts of the jurists said, but to a ‘suitable end’, an end suitable for each of the things to be governed.42 Government responds and regulates ‘men and things’ towards its own end, which is no other than first of all its own survival and which crucially appears as immanent in the very things it claims to direct and control. This is where the jurists of the seventeenth century, Foucault notes: [I]ntervene with the formulation or bringing up to date of the theory of contract. The theory of contract – of the founding contract and the reciprocal commitment of sovereign and subjects – will be a kind of framework for bringing together the general principles of an art of government. [. . .] So, the art of government was caught between an excessively large, abstract, and rigid framework of sovereignty on the one hand, and, on the other, a model of the family that was too narrow, weak,

42 2007: 98–99.

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and insubstantial. The art of government either tried to join up with the general form of sovereignty, or – or rather, at the same time – it relied, and could not fail to rely, on the kind of complete model provided by the government of the family.43 Foucault proceeds to suggest that the art of government manages to release itself from this ‘blocked situation’, due to a number of historical developments, such as the demographic expansion of the eighteenth century, the expansion of agricultural production, the abundance of money, and the emergence of the problem of population. But these factors, among others, could only but intensify the managerial paradigm in its latest incarnation in the form of the State.

Civil or legislative science The search for the ever-mythological foundations of sovereignty and law culminates in the post-revolutionary period in the framing of a civil or political science as a reaction against the theories of revolutionaries in both France and England. The revolution and resistance theories emphasized the contingent, artificial and wilful character of States and their actions, asserting by implication the right of every generation to intervene and depose political institutions on the basis of their will. In the course of the history of juridico-political foundationalisms the responses to this claim took a number of forms, which cannot be analysed here in any significant detail. Yet, in contrast to conventional accounts of progress in political history and thought, what needs to be kept in mind is the reactionary and multifaceted struggle between competing viewpoints that consciously or unconsciously aimed at oikonomically mastering the empty throne of power. The key question becomes: how can civil society appear to be masterable? One response to the claims of the revolutionaries in terms of political theory, and one of the most philosophically rigid ones, came through Schelling for whom it is not the will of the individual that forms the centre of the political order, but the universal will; a ‘world-process’ that entails in its system the progressive reconciliation of necessity and freedom. A universal will that corresponds to an absolute life (absoluten Lebens) and which received further elaboration in Hegel’s Philosophy of Right in 1821.44 Another reactionary theory emphasized not individual or general will, but faith in a power outside and above all human will and reason. Joseph de Maistre famously wrote: ‘Government is really a religion; it has its dogmas, its

43 Ibid: 102–3. 44 Schelling, 1800/1993 and Hegel, 1942.

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mysteries, its ministers.’45 The divine origin of sovereignty theory was utilized not only to support the divine right of monarchies across Europe, but also the divine right of the people and its use as their defence. This theory was developed in France by Victor Cousin.46 For Cousin, neither will nor pure will offer a true ground for sovereignty. For sovereignty to be true sovereignty it must be absolute and, as such, its ground must be in absolute reason. Absolute reason, infallible and immortal, however, is to be represented in constitutional government. The functional relation between an absolute reason with a mortal representation or partaking in its glory is a schema that unites this theory with earlier theodicies that were referred to in the previous two chapters. Perhaps by far the most crucial invention in the attempt to conciliate the paradox of sovereignty and the demands of the revolutionaries, preceding the developments described by Foucault earlier in the eighteenth century, in relation to the conception of a civil or a political science, is the idea largely invented by Bodin (influenced by Jean de Coras) of ‘legislative sovereignty’.47 The essence of sovereignty does not lie strictu senso in law, but is only embodied in law proper, when it is represented in commands of the sovereign.48 Natural laws are theorems, not laws, and their application or administration is to be sought in the sovereign’s commands. The difference between Bodin and Hobbes, in this sense, is that while Hobbes maintains a sovereign Leviathan who functions through the relation between an essence and his command, Bodin (and before him Coras) displace sovereignty to law without recourse to an essence of law or, at least, while replacing (exhausting) the essence of law with/in its praxis: the law is not its essence but what it does, its efficacy and implementation. It is Coras and Bodin, during the sixteenth century who, in the midst of the religious wars in Toulouse, provide a concept of the State and of law on the grounds of legal praxis (economic implementation, calculation, efficacy). Whereas Hobbes contains power in the essence of the political body (Leviathan), Bodin and Coras conceive of no relationship between individual subject and the mortal God or State. The commands of the sovereign now express not the essence of politics and of jurisdictions of power but rather are themselves the effective grounds of law and politics. Sovereignty becomes associated with the procedures of statecraft and law-making, and the sovereign is no longer a guardian, a saviour or an absolute essence of power, but the master of the rule. It is not Hobbes, then, but Bodin and Coras who prefigure Schmitt’s conception of the sovereign as holding a vast array of

45 46 47 48

1924: 247. 1839–40. See the extensive and unique, though not unproblematic, work of Fell, 1983–2008. Hobbes, 1651/2007.

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decisionistic and unfettered powers. It is Bodin and Coras who acknowledge in their architectonics the role of decision and procedure for their understanding of power ‘as such’.49 In parallel to this conception it can be argued that throughout the sixteenth century and all the way to the nineteenth, the anthropomorphic representation of sovereignty or of the State as an organism or separate personality adhered to the rule that its formal reality is never coincident with reality as such (the ideal or fictional and the real were seen through a functional relation that deduced both from an imitation of reality): a scission between a general and a special power, a natural and an artificial power and so forth. This does not cease in relation to conceptions of a ‘sovereign People’, since the people are often conceived as a moral collective body, whereas the King gains always-already a dialectical advantage (despite his own scission between a real and a fictitious persona) by being more tangible and individually visible. In Roman law, as was noted in Chapter 1, the State never appeared as a distinct personality, but was always the sum of the populus Romanus; until the moment when the fiscus, the treasury of the State, was personified as a legal subject (a form by virtue of a fiction, just as the one according to which the Roman State was conceived and which Savigny later would formalize even further in his distinction between artificial and natural persons).50 It is important that the State begins to be conceived anew in the course of the eighteenth and the nineteenth centuries not as a mere artificial construction, but itself as a natural organism, a real abstraction (Coras, Bodin, Schelling and Hegel). The modern stakes are reversed: it is not the individual or collective will or consciousness that gives reality to the State, but rather the State itself that realizes ‘a moral idea’ (Hegel) and that is, in this way, a causa sui (its own cause). The State or the sovereign can be a real abstraction because State-sovereignty is the form wherein artificiality (norm) and reality (fact) enter into a zone of indistinction. The status of the State no longer refers to an essence that pre-exists it, but rather to the power and the glory of the State ‘itself ’ in its praxis. The juridification of this causa sui is of particular significance. The juristic understanding of the sovereignty of the State is formed in terms that in the nineteenth century began to form the sovereignty of the State more clearly, albeit in a preliminary manner: Sovereignty is objectively considered, the sum of the governmental rights, or regalia belonging to the ruler, as such; subjectively . . . it appears as the condition in which one possesses the right to rule in a

49 I thank Anton Schütz for illuminating discussions on this point. 50 Savigny, 1840/1981.

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definite territory, and consequently as the right of the ruler in the sense in which every possession over which no higher can be conceived, operates as a right. In this latter relation the power of the State is called, preferably, sovereignty, suprema potestas.51 In contrast to Bodin and Coras, what now becomes significant is the establishment of an explicit oikonomic functional relation between the individual and the State. In France the feudal State becomes identical with authority and forms the absolute State, and in Germany the constitutional State separates the State from government. Between Hugo Grotius and Otto von Gierke the State develops into a modern juristic persona that is a living reality, a subjectivity in itself.52 The State as a sovereign person becomes the ‘true’ sovereign in the name of the majesty and power of the State ‘itself ’. When Foucault undertakes, in his lectures entitled Security, Territory, Population, a history of the notion of the ‘reason of State’ (raison d’État) throughout the sixteenth and seventeenth centuries, he begins his analysis with a reference to Palazzo’s treatise entitled Discourse on government and the true raison d’État, where the State is defined as entailing four senses: (1) a State as a domain (dominium); (2) a State as a jurisdiction (a set of laws, rules, customs and institutions); (3) a State as a condition of life (as an individual status or a profession); and (4) a State as a quality (whereby a thing remains as it is).53 Reason is defined, in turn, as entailing two senses: (1) reason as the entire essence of a thing (objectively) and (2) reason as a certain power of the soul that ‘enables it to know the truth of things, that is to say, precisely that bond, that integrity of the different parts that constitutes a thing’.54 It is of particular significance that in the definition by Palazzo of the ‘reason of State’, followed by many later theorists of the notion, there is no reference to anything other than to the State ‘as such’. The State in this self-referential manner attempts to establish for itself an indefinite temporality and essence in functional relation to its immanent reality. By the beginning of the seventeenth century the sovereign must know not just the laws, but most crucially the elements that constitute the State as such and that preserve its strength and perpetual survival. It is as a result of this transformation that from this century onwards, what the government is most concerned with is the logistical and statistical knowledge of things and their reality, not for the sake of knowledge as such, but for the sake of management.55 Closely related to this transformation, the reason of State is

51 52 53 54 55

Zoepfl, 1863: I, 83. See Meriam, 1900: 54–6; see also Stolleis, 2004. See Gierke, 1950. 2007: 256. Ibid: 256. Ibid: 274.

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conceived as now acting on the consciousness of ‘people’ and, hence, the public sphere becomes a key managerial apparatus for the State and for its art of government. Foucault writes: That is to say, raison d’État must act on the consciousness of people, not just to impose some true or false beliefs on them, as when, for example, sovereigns want to create belief in their own legitimacy or in the illegitimacy of their rival, but in such a way that their opinion is modified, of course, and along with their opinion their way of doing things, their way of acting, their behaviour as economic subjects and as political subjects. This work of public opinion will be one of the aspects of the politics of truth in raison d’État.56 It is worth noting at this point that any attempt to consider the role of the notion of the people in the formation of political theory on government and sovereignty needs to begin with a consideration of the scission that is conceived to take place between a people as a political power (an artificial, qualified, body of the people) and a people as a non-political power (a bare or natural body of the people.) Agamben in his essay ‘What is a People?’ writes: Any interpretation of the political meaning of the term people ought to start from the peculiar fact that in modern European languages this term always indicates also the poor, the underprivileged, and the excluded. The same term names the constitutive political subject as well as the class that is excluded – de facto if not de jure – from politics. The Italian term popolo, the French term peuple, and the Spanish term pueblo [. . .] and the late-Latin terms populus and popularis from which they all derive, designate in common parlance and in the political lexicon alike the whole of the citizenry as a unitary body politic [. . .] as well as those who belong to inferior classes [. . .] In the American Constitution one thus reads without any sort of distinction: ‘We the people of the United States . . .’; but when Lincoln in the Gettysburg Address invokes a ‘government of the people, by the people, for the people’, the repetition implicitly sets another people against the first. The extent to which such an ambiguity was essential even during the French Revolution (that is, at the very moment in which people’s sovereignty was claimed as a principle) is witnessed by the decisive role played in it by a sense of compassion for the people intended as the excluded class. [. . .] this is already a double concept for Jean Bodin – albeit in a different sense – in the chapter of Les Six Livres de la République in which he defines Democracy or État

56 Ibid: 275.

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Populaire: while the menu peuple is that which it is wise to exclude from political power, the people en corps is intended as entitled to sovereignty.57 For Agamben, this scission in the notion of the people is not accidental and it reflects ‘an ambiguity inherent in the function of the concept in Western politics’; it forms a dialectical oscillation between two opposite poles: an integral body on the one hand, and a people as a subset on the other hand.58 This bipolar notion of the people is in functional relation with the concept of (State) sovereignty and its self-defining supreme power, State power as such.

Commanding consensus It is customary to assert that the ‘liberal revolutions’ of France and America in the eighteenth century formed a radical break with the previous traditions of political thought in the West when they argued for a system of ‘government by consent’. But the notion of ‘government by consent’ has much older roots than it is conventionally assumed and further, as it has been argued in the previous chapter, its earliest roots lie in the oikonomic doctrine of power and its glory. Brian Tierney argues that not only Aquinas ‘laid down as the first principle of rightly ordered rule in any state or people that all should have some share in it’ but, further, that medieval jurists had provided a massive body of work upon which the later modern theories of government were partly based: A text at Dist.4 of Gratian’s Decretum gave rise to endless debate about popular consent to legislation. The maxim of Roman private law, Quod omnes tangit (‘What touches all [is to be approved by all]’) was applied to the authority of General Councils by canonists from the twelfth century onward and so was transformed into a basic principle of representative government. The phrase, with its new meaning, passed into English usage and was still cited in the struggle of the 1640s.59 On the notion of government by consent, Tierney cites, for instance, Marsilius of Padua (c.1325), Herveus Natalis (c.1315), Duns Scotus (c.1300), Duran of St. Purçain and William of Ockham (c.1340) as offering variations on the common theme of consent as a true source of authority. For Tierney, medieval thinkers did preserve the older notion of a hierarchy in the search for a

57 2000: 29–31. 58 Ibid: 31. 59 1987: 648.

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supreme power but, more radically, they introduced the innovation of government by consent as an egalitarian concept. Theories of government by consent and contractarian theories of sovereignty are not identical, but they share an attempt to define ‘the people’ as the constitutive source of sovereign power. Here, a detailed archaeology of the concepts of consent and of the people cannot be provided in any significant detail, but it can be argued that different theories do provide for an underlying indication of the problem of ‘popular sovereignty’ as an ontological and oikonomic problem. When Francisco Suárez, for instance, from within the ambit of natural law (posed as the source of true law) justifies the life of the people in a State as a natural necessity on the basis of the ratio essendi societatis, the freewilled acts of the free persons, who form and are the State, they assume the position of a constitutive cause or power.60 The people in this conception are bipolar and are distinguished from a mere multitude that is accidentally congregated, in that they form instead a corpus politicum mysticum through a moral-juridical bond on the basis of their free and general will. Suárez identifies the central aim of such a constitution as the Gloria Dei, the union with God as the Summum Bonum. Perhaps we have here one of the clearest indications of the key end of the formation of such a Bonum Commune in the glorification of God as presupposing the separation of the people between a pre-political status and one of political power. Suárez’s theory of consensus is neither a new theory, nor a direct precursor to the social contract theories that emerged in later centuries. What is decisive in Suárez, however, in this reading, is that political authority ‘proper’ was not and could not derive from the mere will of those individuals who united in the body politic. Instead, a functional relation to a transcendental power was necessary since community cannot exist without authority. Authority as such is derived from natural law, which in its essence derives from God. God remains impotent with regard to the concrete formation of the State as a community of consensus. Neither special acts of God nor special acts of individuals can be the holder of political power. The scholastic concept of popular sovereignty forms itself ‘as’ itself and is judged only by reference to the common good; as such the government cannot be perpetual or inviolable. What is presupposed as necessary for the formation of the State is the suppositum of the pre-eminence of the common good, the people as the tota communitas, a total body politic that by definition presupposes further a transition from a pre-political State to a political communitas, which the State itself now guarantees. This can be further elucidated if the distinction that Vitoria drew in On the Power of the Church is kept in mind, where he introduced a differentiation, following Aquinas,

60 1859: III, c.1 and 2; see Rommen, 1948: 437–461.

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between potestas as power (potentia) and potestas as authority (auctoritas).61 Power derives only from God, while authority is seen to be derived from the people, and it is their functional relation that forms the foundations of civil society. Here, a transcendent natural law, ultimately derived from God, is economically related to immanent government through the doxological apparatus of consensus. In the seventeenth and eighteenth centuries social contract theories acquired pre-eminence in forming a doctrine of political legitimacy based on consent or government by consent against theories of theocracy, natural necessity, custom and so forth.62 In contrast to ancient philosophy, and Aristotle in particular, where will did not function on the basis of such a moral and political significance, contractarianism (from Hobbes to Thoreau) could be said to extend voluntarism in the political realm so that it becomes the most common element of theories of political constitution. Whether contractarianism is an extension of medieval ideas or of early theories of rational decisionism remains open to speculation, but the influence of Christian oikonomia in Thomistic, Augustinian or Lutheran veins is of central importance. With Agamben’s analysis, in The Kingdom and the Glory, in mind as to the bipolar machine that Christianity founds between a transcendent and an immanent power, the people’s consent can be seen to occupy the reassumed source of the modern form of glorious providence. This was already in preparation in the Scholastics who treated the will as a moral or elective faculty, which was sharply set off from knowledge and action.63 In the scholastic sense the will does the deciding on the basis of some principle, good or divine law, and more generally on the basis of morality. From the time of Hobbes onwards, the will is, instead, defined in psychological terms as the efficient cause of action (one is free to act, not to will). Patrick Riley writes: It is not ordinarily urged that consent is a function of mere knowledge or intellect (since one knows a great many things, some of which one rejects for reasons); nor is it ordinarily suggested that consent is simply an action in the strict sense (involving mere motion, etc.). Consent is held, even by Hobbes, to be a voluntary act. Now the will is – or once was – commonly taken to be a term which intervenes between knowledge and action, explaining the transition from merely knowing a great many things to attempting to do some particular thing [. . .]. Will, then, is often used in a great variety of senses: as preference, as wish, as

61 Vitoria, 1991: 50–1. 62 See generally Baker, 1947. 63 Riley, 1973: 550.

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command, as ‘rational appetite’, as practical reason, among other possibilities.64 Yet it is the ambiguity of the will as such, in fact, which is placed as a necessary hypothesis for the metaphysical logic of contractarianism. If God is conceived as an-archos, and the logic of Christology ensues from this original an-anarchy, it may be possible to argue that, by extension, it is ‘the people’ who are presupposed here as anarchoi, without origin, other than their freedom from an origin, as undetermined, as without reason: as a general will. In The General Will Before Rousseau, Riley notes that the notion of the general will as a central idea of eighteenth-century political theory had its origins in the previous century’s theological debates over ‘divine justice’: The mystery is solved when one realizes that the term volonté générale was well established in the seventeenth century, though not primarily as a political idea. In fact the notion of ‘general will’ was originally a theological one, referring to the kind of will that God (supposedly) had in deciding who would be granted grace sufficient for salvation and who would be consigned to hell. The question at issue was: if ‘God wills that all men be saved’ – as St. Paul asserts in a letter to his disciple Timothy – does he have a general will that produces universal salvation? And if he does not, why does he will particularly that some men not be saved?65 It has already been observed that this question is one of the central issues that arose with regard to the question of divine providence. What Riley recognizes are the older roots of the debate on providence prior to the seventeenth century and more crucially the link of the general will to the notion of potentia absoluta. Riley traces the notion of general will, prior to Rousseau, in Montesquieu who had already used the terms ‘general will’ and ‘particular will’ in chapter XI of The Spirit of Laws (1748)66 and further in the theological debates over what kind of will God had in passing his universal (general will) and particular judgment on salvation: So from the beginning the notion of divine volonté générale and volonté particulière were parts of a larger question about the justice of God; they were always ‘political’ notions, in the largest possible sense of the word

64 Ibid: 550–1. 65 Riley, 1986: 4–5. 66 1989.

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‘political’ – in the sense that even theology is part of what Leibniz called ‘universal jurisprudence’.67 According to Pascal, Riley writes, ‘[the disciples of St. Augustine] believed that before the Fall of Adam “God had a volonté générale et conditionnelle to save all men (whereas after the Fall he willed, by a volonté absolue arising from pity, that some men still be saved though none merited it)” ’.68 For Riley the fullest exposition of the notion of general will is provided by Nicolas Malebranche in his Traité de la Nature et de la Grace (Treatise on Nature and Grace) (1680). Malebranche argued that: ‘God acts by volontés générales when he acts as a consequence of general laws which he has established.’69 God’s general laws following his general will relate functionally to the oikonomic consequence of collateral effects that follow as consequences, but are not willed by God. In this sense, God’s general will is unlimited and is functionally related to earthly governance (which is ruled by particular wills). Malebranche elaborated on his notion of the general will in his last work entitled Réflexions sur la Prémotion Physique (Reflections on Physical Premotion) (1715), through contrasting his conception of general will to theories that relied on sovereign power: My present design is to prove that God is essentially wise, just and good . . . that his volontés are not at all purely arbitrary – that is to say that they are not wise and just simply because he is all-powerful . . . but because they are regulated by the eternal law . . . a law which can consist only in the necessary immutable relations which are among the attributes and perfections which God encloses in his essence.70 Malebranche distinguishes his notion of God’s general will, referred to in the passage above as eternal law, from conceptions of a sovereign omnipotence. For Riley this is a direct attack on the sovereign conceptions of Hobbes and Locke: ‘If,’ Malebranche says, ‘God were only omnipotent, and if here were like princes who glory more in their power than in their nature,’ then, ‘his sovereign domain, or his independence, would give him a right to everything, or he would not act as [an] all-powerful [being].’ If this were true of God, Malebranche continues, then ‘Hobbes, Locke and several others would have discovered the true foundations of morality: authority and power giving, without reason, the right to do whatever one wills, when 67 68 69 70

Riley, 1978: 486. Ibid: 487. Ibid: 489. As quoted in Riley, 1978: 496.

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one has nothing to fear.’ This legal-positivist view of either human or divine justice Malebranche characterizes as ‘mad’; and those who ‘attribute’ this mode of operation to God ‘apparently prefer force, the law of brutes [. . .] to reason’.71 For Malebranche, and later for Leibniz, contra Descartes, Hobbes and Locke, there are eternal laws of justice and it is only on their basis that power can be turned into right. Yet Malebranche desires to keep the number of divine interventions through miracles to a minimum and suggests that the apparent violations of the eternal laws of God are actually in the service of God’s will through the execution of his will by the government of angels and by Christ who is the divine administrator of God’s will on earth.72 It is only through the separation and, for this reason, oikonomic relation between general and particular will or eternal laws (based on God’s essence) and sovereignty (based on omnipotence) that Montesquieu, despite his criticism of Malebranche, is able to argue for the separation of legislative and judicial power (which became so important in the modern doctrines of separation of powers).73 The general spirit of the nation needs to be guided, for Montesquieu and later for Rousseau, not by partiality (particular wills), but by a general will; the will, as Rousseau put it, of ‘free creatures’.74 For Rousseau it is providence as such that has made and justified man’s freedom: ‘Providence has made man free that he may choose the good and refuse the evil . . . what more could divine power itself have done on our behalf ?’75 From this providential logic follows Rousseau’s famous argument for consensus: since every individual is by providence his own master, subjection without individual consent is rendered impossible. Yet, such individual will and freedom will only be adequate for the formation of a civil society, if through civic education and religion it can be made general. In doing so, Rousseau conceives of the end of ‘political time’ when all will be citizens and all individuals will be free rather than forced to be free.76 A non-particular, non-wilful will for Rousseau, under the name of general will, served to translate God’s providence into the general will of the citizen and the general principle of law (as a Law of law): a Will to will. Individuals share in that general will without making that general will particular through their reasoned deliberation, a deliberation that reasons itself wisely only when based on the general reason of the general will (the common good).77

71 72 73 74 75 76 77

Ibid: 497. Nadler explores this in relation to Gersonides in 2001: 35–57. See Agamben, 2007b: Appendix 1. Ibid: 499. Rousseau, 1988: 243. See Riley, 1978. Ibid: 243. Rousseau, 1997: v.2, 36. Ibid: Vol.I, chapter 7. See Riley, 1978.

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In Rousseau a transcendent general will paradoxically founds the immanent legitimacy and existence of the social contract in the form of institutions: it is the ground upon which a people becomes a people. When during the time of Sieyès, who established inter alia the famous distinction in constitutional law between constituent and constituted powers, the nation itself becomes near-identical (contrary to Sieyès’s intentions) to the general will as an inalienable and universal constitution, general will and sovereignty come closer than ever and result in what today characterizes them as indistinct.78 Yet the key to this indistinction is the admittance of representation. The key transformation in the notion of sovereignty is the distinction between a general will and a particular will, which transmits the economicprovidential apparatus to modern politics.79 A civic or public order becomes the strategic apparatus that finds liberty at the very place of its subjection. The strategy employed by Rousseau, and followed in differing ways by contractarians up to the time of modern thinkers like John Rawls, the essence of popular sovereignty is presupposed in its functional relation to consensus and the glorification of authority and obligation. In England, Locke’s foundation of popular sovereignty, which was pronounced and fought over earlier than in Germany and France, was widely accepted.80 The English understanding of sovereignty, as developed by Bentham and Austin, assumed that consent did not need to mean consensus. Instead, a new technique was conceived that functioned through command, habit of obedience and sanction.81 Governance, as much as liberty, was seen as dependent not on some common theoretical telos, but on the practical circumstances and contingencies that may or may not arise. Through the issuing of a sovereign command, ‘justified’ through habitual obedience and backed up by the threat of a sanction, the sovereign is enabled to occupy a space and a time outside the limits of the law, subject to utilitarian calculations and agreements made with other nations. Both Bentham and Austin rejected the social contract theory, both in the sense of the French, as well as that of Hobbes and Locke. For both Bentham and Austin the law is understood on the basis of possibility and utility, rather than ideality. Law is command, separated technically and substantially by custom, ethics and morality. For Austin, in particular, the State is sovereign command, not just any command or popular claim, but the sovereign’s edict.82 The key to this system of law is habitual obedience. Habit shares nothing with notions such as will or consent. Habitual obedience is not directed at specific rights and duties embodied by the sovereign since the sovereign, according to Austin, has no 78 79 80 81 82

See Baczko, 1988: 106 and Sieyès, 2003. See Agamben, 2007b: Ap. 1. See Tuck, 1974: 43–61. See Rosen, 1983 and Dinwiddy, 1989. See Rumble, 1985.

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rights or duties and is, instead, independent not only from public law but also from the public itself. The sovereign utterance of command becomes the de facto and de jure self-legislating declaration of superiority. As such, on a de facto basis, the sovereign is not the community as a whole, but a ‘part’ of it: the part that is actually and concretely the de jure sovereign. ‘Habitual obedience’ has no power to make law; instead it is presupposed in its silent, statistical, nature so as to found the law-maker. Yet habitual obedience sanctions not just sovereign commands, but also the necessary apparatus (apparatus) of government and policing. Foucault writes that in this framing the State emerges as a ‘police state’: since for those who govern in the police state it is not only a matter of taking into account and taking charge of the activity of groups and orders, that is to say, of different types of individuals with their particular status, but also of taking charge of activity at the most detailed, individual level. All the great seventeenth and eighteenth century treatises of police that collate and try to systematise the different regulations are in agreement on this and say explicitly: The object of the police is almost infinite. That is to say, when it is a question of an independent power facing other powers, government according to raison d’État has limited objectives. But there is no limit to the objectives of government when it is a question of managing a public power that has to regulate the behaviour of subjects.83 Critics of the command theory advanced by Bentham and Austin emerged to suggest that the level of abstraction and force centred conception of law was inadequate. Sir Henry Maine, Albert Venn Dicey and David Ritchie led the way towards a conception of sovereign power that was conceived through a presupposed separation and then reconceived functional relation between a legal sovereign and a political sovereign; a conception which resembles quite closely the later distinction between a constituted and a constitutive power. The legal sovereign (the King-in-Parliament) is functionally related to the political sovereign (the body of electors or public opinion).84 Foucault observes that in the seventeenth and eighteenth centuries, while there appears to be no limit to the internal objectives of government, compensating mechanisms do develop that attempt to establish a boundary to the unlimited frontier of government. Whereas in the Middle Ages juridical practice was:

83 2008: 7. 84 Dicey, 1885, 1959.

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[A] multiplier of royal power. Now when this new governmental rationality develops in the sixteenth century, and especially from the start of the seventeenth century, law provides the basis for anyone who wants to limit in one way or another this indefinite extension of raison d’État that is becoming embodied in a police state. Legal theory and judicial institutions no longer serve as the multiplier, but rather as the subtractor of royal power. Thus, from the sixteenth century and throughout the seventeenth century we see the development of a series of polemics, and battles around, for example, fundamental laws of the realm that jurists argue, against raison d’État, cannot be called into question by governmental practice or raison d’État. These fundamental laws exist, as it were, before the state, since they are constitutive of the state, and so, some jurists say, the King, however absolute his power, must not tamper with them. The law constituted by these fundamental laws thus appeared to be outside raison d’État and a principle of its limitation.85 At this point in time, raison d’État and law are in opposition. The jurists posit raison d’État outside the remit of law so that law appears as an external limitation on raison d’État and government. Two approaches, then, emerge in the eighteenth century placing an internal juridical limit upon the exercise of governmental power: first, a juridicodeductive approach, following Rousseau’s analysis, which begins with the delimitation of original laws and rights on the basis of which any later exchange or limitation upon them can be accepted (as well as determining those rights for which no prescriptibility can take place).86 Second, a utilitarian ideology emerged, as developed by English radicalism, which starts from government practice itself and tries to analyse it in terms of the de facto limits that can be set on this governmentality. Foucault notes: These de facto limits may derive from history, from tradition, or from an historically determined state of affairs, but they can and must also be determined as desirable limits, as it were, as the good limits to be established precisely in terms of the objectives of governmentality [. . .]. In short, this approach consists in the analysis of government: its practice, its de facto limits, and its desirable limits. On this basis, it distinguishes those things it would be either contradictory or absurd for government to tamper with.87 Both approaches claim radicality for their part: the French revolutionary

85 2008: 8. 86 See ibid: 39–41. 87 Ibid: 40.

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approach asserts those original laws and rights that cannot be tampered with in opposition to the practises and uses of power by government. The English utilitarian approach asserts elements, different from those claimed by ideologues or philosophers, that evaluate government practices according to their utility and as such form a constant questioning of government.88 Foucault notes that these two approaches are heterogeneous, but not mutually exclusive. This is evident in the way in which these two approaches affect the actual understanding of law: In the revolutionary, axiomatic approach, the law will be seen as the expression of a will. So there will be a system of will-law. The problem of the will is, of course, at the heart of all the problems of right, which again confirms the fact that this is a fundamentally juridical problematic. The law is therefore conceived as the expression of a collective will indicating the part of right individuals have agreed to cede, and the part they wish to hold on to. In the other problematic, the radical utilitarian approach, the law is conceived as the effect of a transaction that separates the sphere of intervention of public authorities from that of the individual’s independence.89 In other words, the things of law and politics are replaced and limited by something outside law and politics, be it a logic or a practice, and that is what became known as political economy, or an economy of politics (and by extension, eventually and today in particular, the new economic paradigm of law). The economy of interests can know no sovereign, but only ‘an invisible hand’ (to remember Adam Smith’s famous term90), and ‘liberalism’, Foucault writes, ‘acquired its modern shape precisely through the formulation of this essential incompatibility between the non-totalizable multiplicity of economic subjects of interest and the totalizing unity of the juridical sovereign’.91 Stated briefly, the transformation taking place from the seventeenth to the eighteenth century (and to the contemporary age) transformed the sovereign essence of absolute reason and power in the reason of State and, ultimately, an administrative sovereign (rather than a sovereign of right). Yet, as Foucault writes: for the art of governing not to have to split into two branches of an art of governing economically and an art of governing juridically, in short, to preserve the unity and generality of the art of governing over the whole

88 89 90 91

This is the meaning of ‘radicalism’ as defined by Foucault, see ibid: 41. Ibid: 41. 1894. 2008: 282.

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sphere of sovereignty, and to keep the specificity and autonomy of the art of governing with respect to economic science, to answer these [. . .] questions, the art of governing must be given a reference, a domain or field of reference, a new reality on which it will be exercised, and I think this new field of reference is civil society.92 Civil society is the semi-transcendental concept of governmental technology, or rather, it is the functional correlate of a technology of government the rational measure of which must be juridically pegged to an economy understood as a process of production and exchange. Foucault writes: ‘The problem of civil society is the juridical structure (économie juridique) of a governmentality pegged to the economic structure (économie économique)’.93 This hidden ‘original’ bipolarity in the form of an economy of economies (that forms and is presupposed between économie juridique and économie économique) has known many names, such as state, nation, civil society, society and today perhaps humanity or global society. For Agamben, realigning Foucault’s insight, it may no longer be a matter of divine providence, but rather a silent oikonomic exercise of providential sovereignty remains functionally related to the essential question of government and must once more posit its archai, its principles and ends: how to govern in the best possible way? If salvation is replaced by protection and calculation of interests and risks, government becomes economic self-organization and regulation (and deregulation), as well as an adaptive mechanism of policing, and its only supposedly counter-pole that remains is ‘public opinion’ (that it has itself produced and presupposed). While it was the sovereign who was held to be outside the law in Austin and Bentham, in Dicey it is political sovereignty or public opinion that has no legal identity, while remaining ‘supreme’. Despite criticism Bentham was much concerned with the role of public opinion and he developed a theory of public opinion through what he called the ‘tribunal of public opinion’. In Habermas’s famous work The Structural Transformation of the Public Sphere, Bentham features as the first to have analysed the relationship between public opinion and the principle of publicity.94 For Habermas this paves the way for the promotion of rational-critical discourse in the democratic public sphere. For Bentham public opinion tribunal is viewed as a tribunal composed informally by the public, which operates continuously as a fictitious entity and is incorruptible.95 Bentham posed the tribunal of public opinion as a

92 Ibid: 295. 93 Ibid: 296. 94 Habermas, 1992. See also Laursen, 1986: 584–603. See further, Habermas, 1995: 109–31; Lafont, 2007: 236–56. 95 Bentham, 1982: 34–7; see also Cutler, 1999.

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body capable of issuing moral sanction to counterbalance the political legal sanction that was the everlasting threat of sovereign commands. The illimitability of the sovereign, who cannot be threatened with legal sanctions, is ‘mitigated’ only by public opinion that forms the only check on government.96 From another perspective, the tribunal of public opinion was just another mechanism that assisted the operation of the utilitarian machine that aimed at the ‘greatest happiness for the greater number’, and as an informal system it formed the supplement to the command system of sovereignty. In Bentham’s conception it can be argued that the tribunal acts to provide acclamations to the utilitarian cause of government (utility being the government’s attempt at a meta-principle). Following Agamben’s analysis in The Kingdom and the Glory, acclamations are a key element in the formation of public opinion. While protocols, ceremonies, acclamations and liturgies are minimized or simplified today in modern democracies, they still operate in the form of public opinion.97 It seems that while glory is in decline and while the ceremonial and doxological aspects of power are considered to be largely irrelevant (with the allegedly minor interruption of this decline in their resurfacing in Nazism and Fascism), modern democratic regimes continue to include glory under the name of public opinion. The key role of public opinion is grounded in the need to institute a public sphere as the operari and essence of modern democracy. Schmitt, in his Doctrine of the Constitution in 1928, provides an analysis of the significance of acclamations as constitutive of public law and of democratic doctrine. Schmitt proposes that the people as a concept can only exist within the sphere of publicity. People and publicity coexist: ‘no people without publicity and no publicity without a people’.98 It is on this basis that Rousseau’s celebrated view that the people cannot be represented finds its true ground. It is only through public opinion that the survival of acclamations in the democratic setting is made possible. As such public opinion (its formation, manipulation and evasion) is not a sociological or juridical matter, but a matter of acclamation, of glory. Agamben’s point is that while democracy makes seemingly impossible the paradigmatic fascist acclamations of the twentieth century, acclamations have not disappeared, as it may appear at first glance, but have been replaced by the civil science of public opinion. Modern democracy, according to Agamben, following Guy Debord’s diagnosis of the society of the spectacle (Société du spectacle), is formed on the basis of spectacular power. The public sphere, and public opinion are the modern form of acclamation and glorification of power, and in this manner

96 Bentham, 1989: 241. 97 Agamben, 2007b: 277. 98 As quoted in ibid: 2007b: 278.

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Debord’s diagnosis seems more accurate than ever.99 In fact it could be argued that when glory becomes identified with the very nature of the people as a public, public doxa (opinion) proliferates glorification and doxology extends to the whole of the political and social sphere. Public doxa is not a mere ornament of power but the very oikonomic relation between the people and power. Democracy, in this sense, is founded on glory through the concept of government by consent; public opinion and the dominant and integrated role of the media in democracy spectacle can only be understood properly through this constellation as a media-suffused government.100 Famously, in the 1990s, it was argued by the German philosopher Jürgen Habermas, in a debate with the German constitutional scholar Dieter Grimm, that a political community need not be based primarily on ethnocultural identity, but rather on the practices of citizens who exercise their rights to participation and communication.101 Europe does not entail a common demos or language on which to base its public sphere and as such to create a European people and polity (this was Grimm’s view). For Habermas, however, a European public is possible on the basis of what can be called a communicative procedure, a communicative sovereignty which breaks with the outdated model of older forms of popular sovereignty. A communicative people is made possible through public opinion that ultimately relies on the punditry of experts and the media (which in turn ultimately rely on the calculation, prevalence and prediction of interests). But for Habermas the early modern State (founded on the basis of an immediate presence of the people and through the latter’s acclamations) is replaced today by communicative forms that neutralize the State. This brings Habermas dangerously close to Schmitt’s conclusions and if the glorifying role of public opinion in modern democracy is not taken seriously and understood for what it really is (a remnant of glory and acclamation), then democracy will never absolve itself of its earlier nightmares. For Agamben, crucially, Habermas’s and Grimm’s views are only two seemingly opposed sides of the same thing: a mediated glory consisting of the alleged immediate representation of the people rendered possible through acclamations (without substantial content) rendering the sphere

99 Ibid: 280. 100 Of particular interest regarding the formation of ‘public opinion studies’ is the turn to the study of views of ‘ordinary people’ in the 1960s in America, along with the formation of a bureaucratic mentality and the increasing modernization and centralization of an openmarket economy; for a review of the literature on this see Jacobs and Shapiro, 1989: 1–24. On political ritual and the role of the media see Rothenbuhler, 1998; and Turner, 1991. On ritual ceremonies from a modern perspective, see Bak, 1990; also, Cannadine, 1992: 1–19; and further, Theuws and Nelson, 2000. Other recent studies on the mediation of ceremonial rituals and glorification include: Klaniczay, 1990; and Klaniczay, 2002. 101 Habermas, 1996; and Habermas, 1997.

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of social communication banal, empty and impotent. A national people and a communicative people, despite their varied formations, are the two faces of publicity and opinion (doxa), which incessantly unite and separate in contemporary society under the guise of public opinion.102 Consent (and government based on consent) is formulated on the basis of the structure of a state of exception itself. While the sovereign assumes a state of being outside the law, in order to be simultaneously within, public opinion and government by consent could be seen to reform the justification for the sovereign concentration of power through the presumption of an outside inside (an unlimited freedom of ‘We the People’ represented in public opinion) to the constituted realm.103 It is not only the sovereign that is formed as outside inside the legal order, but also the public (the People) as a new sovereign constitutive power. It is in this sense that the place of the ‘free’ constitutive power (of the People) coincides with the place of the people’s subjection. Public opinion, or consensus, as an element of a communicative democratic sovereignty, a ‘glorious democracy’, re-links political and juridical liturgy with its primary doxological function in the modern governmental oikonomia, which now penetrates every ambit of social life. The contemporary situation, once more, finds its alleged criterion through reclothing the bipolarity between a divine and human aspect, an ontological and oikonomic realm, the Father and the Son, the essence of the people and the communicative subjection of the people ‘as’ a constituted power. For Rawls and Habermas, in liberal vein, whether through the notion of humanity in the sense of human rights or a cosmopolitan law, a popular constitutive power is maintained as offering an unmediated membership to a counter-factual community of ‘free world citizens’. For theorists of the left, like Antonio Negri, constituting power is held paradoxically irreducible to any form of constituted order.104 Schmitt’s notion of ‘concrete orders’ (functioning as a real constituting power forming existential decisions about political being) is an attempt to uphold a ‘proper’ constituting power separate from the represented will of the people or the form of consent, as in Rousseau and Sieyès, in order to safeguard the strict separation between the merely constituting subject and the sovereign subject. But it could be said that Negri and Schmitt reach the terrain of a common paradox in their theories. In the liberal order, an order that has reached its extreme form of indifference today, Schmitt diagnoses the indistinguishability of constitutive power and sovereignty, since neither is placed entirely within nor entirely outside the

102 Agamben, 2007b: 282. 103 Agamben traces the first technical-juridical use of the term consensus in the Res gestae Augusti in a crucial passage where Augustus assumes an extraordinary concentration of powers on the basis of an assumed consensus: ‘In consulate sexto et septimo, postquam bella civilian extinxeram, per consensum universorum potitus rerum omnium.’; 2007b: 282. 104 See Negri, 1999.

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juridical rule, in order to uphold a proper sovereign constitutive power.105 Negri has persistently, too, undertaken (from a steadfastly opposed political point of view) to show that constituting power can and should be thought as separate from every form of constituted order: The truth of constituting power is not the one that can (in any way whatsoever) be attributed to the concept of sovereignty. This is not the truth of constituting power not only because constituting power is not (as is obvious) an emanation of constituted power, but also because constituting power is not the institution of constituted power: it is the act of choice, the punctual determination that opens a horizon, the radical enacting of something that did not exist before and whose conditions of existence stipulate that the creative act cannot lose its characteristics in creating. When constituting power sets the constituting process in motion, every determination is free and remains free. Sovereignty, on the other hand, arises as the establishment – and therefore as the end – of constituting power, as the consumption of the freedom brought by constituting power.106 Whereas Schmitt wanted to safeguard the irreducible truth of sovereignty in its concrete and ‘proper’ sense, Negri aims to safeguard the irreducible truth of constituent power. The distinction between constituent (constitutive) and constituted power remains an essential problem for any genuine study of democratic politics. But rather than achieving an exit from the democratic paradox of power (its oikonomia between a constitutive and a constituted power or Kingdom and government), both Schmitt and Negri appear to relocate the paradox to either of the respective polarities of the fundamental structure of the governmental machine that they criticize. Free concrete and proper sovereign orders as much as a radically free constituent power take to the extreme, arriving from opposed directions, the bipolar structure of the modern oikonomia. In this sense, the principle of freedom appears dangerously close to being a new form of sovereignty-suffused power and the sovereign principle appears once more to only be restrained by its illimitable freedom. Whether one follows Negri’s claim for ‘a free-floating praxis’ as constituent power or a claim that constituent power is not free-floating, constituent power: appears to come always already implicated with constitutional form, the instituting already coupled with the instituted. [. . .] Because to be valid it must be imputed to the constitution that establishes the conditions under

105 1998: 42–3. 106 As quoted in Agamben, 1998a: 43; see also Negri, 1999.

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which the popular will can be expressed as sovereign. Law and democracy are reconciled only via the suppression of a paradox that impacts on constitution-making as never, inevitably, fully democratic.107 One ultimately returns to the point of the beginning, of an alleged origin: constituent power forms as and through a paradoxical relation or differentiation (a relation nonetheless) with constituted power, but what they both presuppose is a relation to an empty throne. Negri’s placing of constituent power in the realm of freedom (through his reading of Spinoza) witnesses the empty throne of Western power and if it is to avoid filling this void with yet another principle of sovereignty, the genealogy of a strictly irreconcilable bipolar governmental machine would need to be taken into account. For Agamben, while this presents political theorists with a key question in need of further exploration, it is equally an alarming fact that constituent power, occupying either a wholly separate or an inside-outside threshold in relation to juridical rule, comes very close to being identified with the central characteristics that have all along been attributed to the mythologeme of sovereignty.108 Negri’s valuable contribution to political theory in this regard lies with the rethinking of the freedom of constituent power as no longer a political or legal category, but as a category of ontology: the constitution of potentiality and of the new. But that is a very difficult freedom. The problem is that constituent power remains tightly woven in the dialectical matrix of sovereignty (and law) and the search for a supreme principle or arche¯ . So long as a sovereign arche¯ or a supreme (and free) power are sought, then political theory will remain consumed within the very dialectic that it attempts to elucidate or deconstruct and, in doing so, it will always presuppose its formation through the assumption of a virtual state of exception, an alleged outside of sovereignty or of law, from which alleged a ‘new’ and ‘free’ vantage point to found new order. But a genuine attempt to exit this logic will need to find its way towards a real state of exception that would render ineffective the virtual state of exception (and the governmental functionaries that flow from it).

The paradox of legal sovereignty To the extent that in Western metaphysics it seems advisable to state where and how one begins, meta-remarks or meta-propositions can demonstrate: ‘that the starting point is desires and the argument their legitimation’.109 Yet meta-propositions attempt to ground decisions and desires through the

107 Christodoulidis, 2007: 189–208. 108 Agamben, 1998a: 43. 109 Schürmann, 1992: 387.

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presupposition of an arche¯ to such a maximized extent that they become propositions about all other propositions and posit standards more normative than anything that can be desired. In the sphere of everyday common opinion as produced by the media and manipulated towards particular political desires and in the era of revelation of what today are often called humanity’s ultimates (i.e. human rights, democracy, the free market, the free world), such sorting-out of primary meta-propositions always attempts to conceal the agenealogical knowledge of such primary ‘Laws of law’, and to elevate them to a normative meta-theticism that requires a predisposed consensus rather than inquiry and knowledge. Schürmann writes: Such sorting out goes not without pains. On the one hand, it has to deal with collective and individual hysteria, with leaders of formidable efficacy, with long lasting hatreds and short memory, with vendetta conventions and sham treaties, economic depression [. . .] etc. Assortments of this kind may help explain mini-chains of events (perhaps the electoral victory of 1933). They hardly yield an understanding. On the other hand, trying to sort out conditions of the large-scale pathologies of our century, it is difficult to avoid entering precisely the sphere of standards, values and the like. What may be gathered there is the fallout from principles betrayed: democracy, human rights, freedom . . . Of course values and principles were betrayed. But what intelligibility about conditions does one gain from bemoaning a sell-out?110 The meta-thetic or metaphysical logic of ‘Laws of law’ (or of ‘ultimate standards’) can only legitimate itself through the overcoming of its agenealogical origin by capturing the paradox of its origination as a distinctively legal phenomenon. Hence, when sovereignty is considered, one arrives at the so-called originary saying: ‘I, the sovereign, who am outside the law, declare that there is nothing outside the law.’ The paradox of such a formulation of sovereignty between an inside and the capturing of a presupposed outside is summarized by William Rasch who writes: Stated in the form of a proposition the law of the excluded middle is a proposition about all propositions. It says: ‘All propositions are either true or false.’ The law, then, would seem to include itself within the set it adjudicates. It would seem to require the law undergo its own scrutiny and pass judgment on itself. [. . .] Accordingly, it is not so much that the proposition ‘All propositions are either true or false’ falls outside the set of all propositions; rather remaining inside, the proposition excludes

110 1992: 388.

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itself from its own workings. It simply cannot be subject to the same judgment that it exercises – which is to say that for the law of the excluded middle to operate, it must be the excluded middle, neither true nor false. Thus, self-exemption ‘solves’ the paradox of totalizing propositions by rudely and insolently becoming the paradox.111 The paradox Rasch discusses is the paradox of sovereign self-exemption described in the self-declaration of the sovereignty of the sovereign. Such a paradox appears arbitrary and mysterious and yet it obeys a juridical and political logic that always-already aims to assume a ground of sovereignty within itself that precedes the law but remains of the law, in order to render the law (its force) absolutely potential and to self-legitimate the capture of everything inside its sphere on the basis of an ‘as if ’ outside. It is akin, in this sense, to the theological paradox of transcendence: God can only be God on the basis of his exclusion from the laws that he can be seen to transmit for the government of the earthy kingdom. In the juridical sense that has been examined in Chapter 1 an order of sovereign law must first derive a higher law which becomes the sovereign source of law through a self-exemption that the immanent secular ordering claims to avoid. Otherwise each law will ultimately refer itself to a bad infinity of yet another pre-existing law that would set its universality and absoluteness into crisis. God, as much as higher law, must first distinguish themselves from themselves in order to appear absolute and universal and ultimately in order to guarantee that the world is paradoxically immanently governable. As it was suggested in Chapter 2, oikonomia, the administration and application of laws or government, is functionally related to this presupposition of sovereignty or of theologico-political transcendence. Rasch writes: Ironically, then, for law to be absolute, it must be limited, it must be immanent to the set in which it rules and stand in no hierarchical relation to the outside. The distinction of levels is displaced – or rather – replaced, re-entered into the set itself. The result is not a hierarchy of sets, but a simultaneous symmetry and asymmetry of propositions within the set of all propositions. The law does not derive its power from an external source, but rather achieves its power by distinguishing itself from itself – an act of logical nuclear fusion, as it were. Thus, the proposition that maintains that all propositions are either true or false claims for itself the authority of truth precisely by refusing to subject itself to the mechanism of truth-testing. It is sovereign because it is sovereign.112

111 2007: 93. 112 2007: 94.

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Hence, this logic derives from a self-referential circularity that is grounded on the negative definition of law that in philosophy and theology characterizes what is present (a parousia, a being) through an absence (apousia, Being). A meta-proposition that claims its validity on the basis of a normal case pre-supposed as entailing the transcendental realm of its own validity, its own self-exemption. A mere statement or proposition evades its singularity of being just a statement in order to presuppose negatively an outside where any possible predicate can subsist and where it can found its ultimacy and its ineffable arche¯ . Was it not this that was at stake when God and Christ were declared to be an-archos, without arche¯ or origin? Agamben compares the paradox of sovereignty in Homo Sacer: Sovereign Power and Bare Life to negative theology: only because it has been negatively presupposed as what subsists outside any possible predicate can divinity become the subject of a predication. Analogously, only because its validity is suspended in the state of exception can positive law define the normal case as the realm of its own validity.113 Self-exemption or a state of exception becomes, for Agamben, the condition of possibility of sovereignty and ultimate laws. For the sovereign or the Law to overcome its mere ‘singularity’ (its mere being-so-called, a statement, a particular proposition or case) it must exclude itself as an individual case by suspending its singularity for its inception and declaration as a universal law. Hence, the paradox of sovereignty, or more generally the paradox of meta-propositions, which aim to include in their set all other possible propositions. The exemption or exception is not just an exclusion, then, but also a requirement that, for its existence and validity to be safeguarded, the ordinary jurisdiction of its application must be suspended: the sovereign law must place an alleged transcendent part of itself outside itself which is not merely then excluded. The ‘Law of law’ must include in itself the possibility of all ordinary law, but at the same time push itself outside, in order to declare itself as exterior to ordinary law and to conceal its very own capture within the paradox of an inclusiveexclusion. Things as relating to sovereignty are then more complex than a mere capture of what sovereignty is capable of interiorizing. Sovereignty rules: not just by means of an interdiction and internment but by means of a suspension of the juridical order’s validity. [. . .] the rule gives rise to the exception and maintains itself in relation to it in order to constitute first

113 1998a: 17.

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itself as a rule. [. . .] the particular ‘force’ of law consists in this capacity of law to maintain itself in relation to an exteriority.114 If Schmitt’s argument that the liberal order is just an(other) order and that a sovereign, as an extra-societal force, is always the one who decides on the exception this must be seen for what it really is: a coincidence with the messianic paradox contained in sovereign law and more so today when the indifference between the state of exception and the rule has reached its extreme form. This indistinguishability is the extreme form of sovereignty as such: I, the sovereign, who am outside the law, declare that there is nothing outside the law. For Schmitt the exception, as a rupture to the banal time of the liberal order, comes from the outside in the same manner that the miracle theologically works as a borderline concept.115 The exception states effectively that there is only an exception-rule, since rule and exception have expanded the field of sovereign operations to the very illimitability that once characterized the so-called outside of the rule. Schmitt’s position as a polemic against the liberal order resituates the liberal order as merely one order among others, yet it itself remains caught within the search for a model of supreme order. One of the most acute observations of this paradox as a dogma is offered by Benjamin in his Critique of Violence: the force of law entails a bipolar structure of power or violence whereby the violence that demands obedience to the law is characterized as law-preserving violence and the violence that founds the law is law-positing violence.116 Law-positing violence institutes a mythical space that the law-preserving violence maintains and, as such, the two are functionally related and dependent on each other. Benjamin conflates these two forms of violence as mythic violence and opposes to them what he calls ‘divine violence’: divine violence is the violence that leads law to its messianic katargesis, its inoperativity and, as such, it is a power or violence in alignment with the messianic, rather than the juridical or political powers.117 If mythical power today in the form of the state of exception having become the rule enunciates and glorifies nothing else than its emptiness (being in force without significance), its zero point of content, such a nothingness of content cannot be left to subsist indefinitely, but must instead itself be nullified. If divine violence cannot merely fulfil the law’s end (since the law is already in a state of suspension in the state of exception) or merely substitute another law for it, then the messianic paradox inherent in the formula of sovereign law needs to be thought otherwise (on which see Chapter 6).

114 115 116 117

Ibid: 18. See Weber, 1993. Benjamin, 1996a. On the notion of katargesis see Chapter 6.

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Divine violence does not maintain, as sovereign violence does, the link between violence and law. Sovereign violence in distinguishing the state of exception from the normal case posits a dialectic between outside and inside, nature and law, the sovereign to decide on the two, rendering them indistinguishable and yet the subject matter of a de-cision (scission). Divine or pure violence is a violent strike that then immediately subtracts itself. It is not a means to an end. Divine violence takes place, for Benjamin, through a real state of exception that separates violence from law; it neither posits nor conserves violence, but it does violence to violence by deposing its link to law. This is examined and reconsidered in the next chapter in some detail. For now it is worth noting that divine violence is what is at stake in the struggle with mythic violence as an assault on what triggers legal violence. In the contemporary situation, a glorious democracy relies precisely on the imaginary indeterminacy of a general guilt (a general will) at the very moment when it claims to arise from a determinate consensus. Benjamin, in his study of German baroque Trauerspiel (On the Origin of German Tragic Drama), offers instructive suggestions as to the replacement of the absolute indeterminacy vested in sovereign authority by showing the mythical abyss that is assumed to loom at the edge of fragile order and which is exposed as a presupposition in the transition from a metaphysical space of absolutism to a new form sovereign authority by technicians of power who espoused the abyss of history as opposed to that of tragic myth.118 Koepnick captures the essence of this: what is essential about the Trauerspiel is that it exhibits critical selfcontradictions inherent in the secularized paradigm of power and, in turn, also exposes the flaws of Schmitt’s alternative to the precarious legitimacy of twentieth-century parliamentarianism.119 Benjamin’s theory as to sovereign power treats as key the so-called transcendental time-space of the sovereign decision as a time of continuous hesitation, where, in contrast, no transcendence can be found. It is, perhaps, possible to explain how exceptionalism today forms a continual metamorphosis of the void space outside the law in order to hide its inability to decide, other than to postpone the messianic arrival of the real decision or exception. Plots, concepts, rhetoric and political banality (addressing anonymous masses of humanity, globality, terrorist cells, etc.) fill the outside space with nothing of real substance, no knowledge or legal learning, but only with incessant oblivion of the making of consensus.

118 1985. 119 1996: 287.

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The virtual state of exception The tradition of the oppressed teaches us that the ‘state of exception’ in which we live is not the exception but the rule. We must attain to a conception of history that is in keeping with this insight. Then we shall clearly realize that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against Fascism.120 The state of exception presents itself as the legal form of that which cannot have any legal form and as such, Agamben writes, it forms ‘the paradigm of dominant governance in contemporary politics’.121 Schmitt, with his emphasis on limit-situations (and the exception in particular), reactivates the presumptions of an aesthetico-political omnipotence, a visibility of the so-called original event that decides (divides, relates) the state of exception from the substance of law or the norm. To the empty world that arises in the modern dream of pure immanence and of a non-metaphysical political and social realm, a limit-decisionism on the grounds of the exception collapses politics into an imaginary realm where everything is once again possible. But if the old-European model of sovereignty aimed to capture the imagination, proper Schmittian sovereignty posits the imagination itself as the place of undecidability. This may serve to explain why today, when the state of exception is once again functionally devised in political and juridical practices in the counter-terrorist democracies of the West, it is not decisions that are made, but indecisions that rely on a timelessness of, for instance, ‘infinite justice’, everlasting counter-terrorism and overall an allegedly tragic pathogenesis. The state of exception, in this sense, which for Schmitt served (in the decision of the sovereign) to delay, to restrain, to act as the katechon between the present and the coming of the Antichrist and to produce history, is today transformed as a continuous shock of normality. Exceptionalism is transformed into a one-dimensional normality: The key to the Schmitt’s analysis of the state of exception lies with what Agamben has called ‘the gigantomachy concerning a void’.122 Agamben, in his State of Exception, rereads Schmitt’s Political Theology as a response to Benjamin’s Critique of Violence. Benjamin’s aim in his famous essay is to argue for the possibility and reality of a violence (Gewalt, power) that stands outside the contours of an incessant juridical dialectic between a law-making violence and a law-preserving violence; which Benjamin calls pure or divine violence. Such violence deposes (not the law as such but) what triggers

120 Benjamin, ‘Über den Begriff der Geschichte’ Gesammelte Schriften, I:2:697 in Benjamin, 1992: 257. 121 2005: 10–11. 122 2005: 52.

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legal violence, which for Benjamin is the mythologization of life as sacred for which human beings are supposedly imbued with guilt. Agamben writes: Schmitt instead seeks to lead such a violence back to a juridical context. The state of exception is the place in which he tries to capture Benjamin’s idea of a pure violence and to inscribe anomie within the very body of the nomos. According to Schmitt, there cannot be a pure violence – that is, a violence absolutely outside the law – because in the state of exception it is included in the law through its exclusion. That is to say, the state of exception is the device by means of which Schmitt responds to Benjamin’s affirmation of a wholly anomic human action.123 Such anomic human action is even today ill-conceived by jurists and philosophers when seen as some form of banal naturalism or unthought anarchism. It is remarkable that jurists, as well as philosophers, find it extremely difficult to note unapologetically that what lies before the law is not the sacredness of life or an embedded guilt or wrong but simply the before (which does not refer to a mere has been, but to what never was, as Chapter 6 explicates). In contrast, in the proposed reading of Benjamin’s notion of pure violence the juridical and the non-juridical are not to be fused or reduced to one pole. It is remarkable since what could be seen to concern the genuine study of law, as well as that of the friends of wisdom, is the before as such and the non-relation to it of the posited, the norm, the historical and so forth. It is also extremely banal to read that such a before cannot possibly be anything other than yet another law, or equally some renewed form of an essential ground for being and for law (or ultimately a horizon of undecidability). Instead, in this work, the aim is to suggest that what lies before the law is merely the before (that is without relation to the juridical). Through legal violence the law arrives at the limit of its own potential, not that of potentiality in general, and at this point the law ends, dissolving its inherent problem of rightness. Law must at all costs forbid the unbinding of violence and law, violence and life. Instead, the key purpose of this work remains to expose the potential uses of the law, to deactivate the oldEuropean Law of sovereign power – that can only find its rigor through the sacralization of life (as bare life) and its spectacular projection of transcendental ‘Laws of law’ – and to render ineffective the presupposed knot between violence and a transcendental rightness, the biopolitical bond to law. The messianic gesture of Benjamin’s argument does not propose a life unspoilt by the law as yet a further naïve salvation through another law or an equally naïve total antinomianism, but as redemption from salvation as such. That is no easy task and the notion of a divine or pure violence that is free of

123 Ibid: 54.

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law and that has no need for a justification is historically compromised by its legal formula. A pure violence free of law has always been the imagesuffused legal sign of a transcendental righteousness and deposing this sovereign sign as a mythologeme also requires a realignment of Benjamin’s strategy. It is with this in mind that the analyses of Schmitt, Benjamin and Agamben can be understood regarding the state of exception and sovereign power. Agamben’s unique contribution to this area of study can be summarized by its emphasis on the state of exception as a problematic form of government: a now permanent virtual economy of violence that aims to manage life as such. The state of exception is the limit concept of the Western bipolar machine of government through which the law founds its concealed forbidding of the unbinding of the knot that it imposes between every-thing (res) and the mythical violence of the juridical realm (res publica). The state of exception is constitutive of the juridical order, rather than some mere unusual instance or crisis. The law of the exception, if posed as a limit concept, always separates itself into a virtual duality or bipolarity: an anomic realm, a space and time devoid of law and a nomic realm, a space and time of juridical rule; in other words into a constituent or constitutive and a constituted power whose relation is paradoxically assumed as juridical in itself. The pseudo-dialectical economic functionality between its two posited realms instead shows that the law is grounded on an undecidable void, a kenomatic state and as such on a particular fiction of anomie as the outside of law. The functional relation between the fiction of an anomic state and a nomic state presupposes the state of exception as a virtual kenomatic (void) state that now covers the space of the polis in its entirety. Agamben writes: [this] derives from the notion of plenitudo potestatis, which was elaborated in that true and proper laboratory of modern public legal terminology that was canon law. The presupposition here is that the state of exception entails a return to an original, pleromatic state in which the distinction among the different powers (legislative, executive, etc.) has not yet been produced. As we will see, the state of exception constitutes rather a kenomatic state, an emptiness of law, and the idea of an originary indistinction and fullness of power must be considered a legal mythologeme analogous to the idea of a state of nature (and it is not by chance that it was precisely Schmitt who had recourse to this mythologeme.)124 Today, what is frequently called the ‘liquidation of democracy or society’ through the systematic and regular use of the apparatuses of the state of

124 Ibid: 5–6.

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exception, emergency powers, the erosion of the legislative powers of Parliament and the provisional-turned-regular abolition of the separation of powers can only be understood properly through the presupposition of the kenomatic (void law) threshold within which power allegedly originates and produces the kenosomatic (empty body) body of bare life on which the next chapter elaborates).125 The state of exception raises the question of an alleged sphere of action that is supposed to be extra-juridical, outside the law (yet one that is not entirely unrelated to it). That democratic, totalitarian and resistance theories of power appear analogous, in this sense, is no mere coincidence. In truth, the state of exception does not form a limit between an inside and an outside of law, but rather forms on the limit, on the threshold where the two cannot be distinguished. At the time of the formation of plenitudo potestatis, the medieval use of the exception or necessity referred to a particular case, that is, it aimed to open the law to an external facticity (the real exception), whereas in modernity the exception aims to include, in one way or another, the exception within the law through the binding of facticity and law in a state of indistinction.126 In both cases the state of exception or of necessity forms as a dispensation and, as such, it acts as a form of government, of oikonomia with emphasis on praxis and the particular case at hand. Schmitt’s controversial study of the state of exception, as Agamben suggests, can only be understood properly if read through his earlier work entitled Dictatorship.127 The formula for understanding the state of exception in Schmitt in both books follows the logic of an irreducible difference between the State and the law where the State continues to exist but the law recedes when the state of exception becomes the rule. In other words, for Schmitt, the juridical rule and realm is not exhausted in the law. An oikonomic lacuna forms between the law or norm and its application (its praxis). In extreme situations, for Schmitt, the lacuna can only be filled by the state of exception, ‘that is by creating a zone in which application is suspended, but the law as such remains in force’.128 The aim of Schmitt’s analyses in both books is clear: to inscribe the state of exception in a juridical context (implying an oikonomic order and not necessarily a juridical order as such).129 In Dictatorship, Schmitt differentiates between two types of dictatorship: a commissarial dictatorship and a sovereign dictatorship. In the commissarial dictatorship norms of law and norms of the realization of law are distinguished, whereas in sovereign dictatorship the distinction lies between

125 Agamben provides a summary of the history of the state of exception in 2005: 11–22. 126 Ibid: 24–8. 127 Schmitt, 1994. On the use and misuse of ‘constituent power’ in Schmitt see Cristi, 2000: 1749–75. 128 2005: 31. 129 Ibid: 32.

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constituent and constituted power.130 In commissarial dictatorship the constitution can be suspended in its application without ceasing to remain in force on the basis of a concrete exception. As such, the suspension arises from within the constitution and aims at its suspension. In contrast, in a sovereign dictatorship the aim is to impose a new constitution on the basis of the minimum of a constituent power that cannot be negated, even by an existing constitution.131 Schmitt insisted on this difference. Agamben writes: [neither the Leninist theory and practice of the dictatorship of the proletariat nor the gradual exacerbation of the use of the state of exception in the Weimar Republic was a figure of the old commissarial dictatorship; they were, rather, something new and more extreme, which threatened to put into question the very consistency of the juridico-political order, and whose relation to the law is exactly what Schmitt sought to preserve at all costs.132 Having analysed the state of exception first in the Dictatorship book, Schmitt’s theory develops into a theory of sovereignty only, that is, on the basis of always-already juridicizing the state of exception as described in his Political Theology (through such references to the Roman magistracy and to the distinction of norms of law and norms of realization).133 As Agamben writes: ‘Schmitt’s theory of the state of exception proceeds by establishing in the body of the law a series of caesurae and divisions whose ends do not quite meet, but which, by means of their articulation and opposition, allow the machine of law to function.’134 In Political Theology, the distinction that is decisive is that between norm and decision. In suspending the norm, the state of exception reveals a specifically juridical element: the decision.135 For Schmitt this distinction is the operator of the inscription of the state of exception in the juridical framework and, as such, both norm and decision remain within the juridical plane. It is on this basis that the theory of the state of exception can be presented as a theory of (juridical) sovereignty. The separation of the essence or substance of the norm as law and the praxis or application of the law (which, for Schmitt, at its extreme instance is materialized through the decision on the exception) allows the reciprocal relation between the two elements for the juridical machine to be able to function. Once more two paradigms (a theologico-political principle or essence of law and an oikonomic form of government or application) remain

130 131 132 133 134 135

Ibid: 33. Ibid: 33–4. Ibid: 34. Ibid: 35. Ibid. Ibid: 34.

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functionally related and differentiated at the same time and it is on this silenced knot between the two that the juridical machine can preserve itself and impose its decrees and laws. Agamben writes, and it is necessary to quote him at length: Commissarial dictatorship shows that the moment of application is autonomous with respect to the norm as such, and that the norm ‘can be suspended, without thereby ceasing to remain in force’ (Schmitt, 1921, 137). That is, commissarial dictatorship represents a state of the law in which the law is not applied, but remains in force. Instead, sovereign dictatorship (in which the old constitution no longer exists and the new one is present in the ‘minimal’ form of constituent power) represents a state of the law in which the law is applied, but is not formally in force. [. . .] In the decision on the state of exception, the norm is suspended or even annulled; but what is at issue in this suspension is, once again, the creation of a situation that makes the application of the norm possible (‘a situation in which juridical norms can be valid [gelten] must be brought about’ (Schmitt, 1922: 13/13). That is, the state of exception separates the norm from its application in order to make its application possible. It introduces a zone of anomie into the law in order to make the effective regulation of the real possible.136 The opposition between norm (in its essence) and its realization (its execution or government) reaches its greatest intensity in the state of exception. This simulates, perhaps to an extent, the opposition between the essence of God and that of his oikonomia that reaches its greatest intensity in the state of anomie, as shown in the previous chapter. Both oppositions find their alleged force in the suspension of concrete praxis in its immediate reference to the real and the divine respectively. The decision on the exception is not the constitutive event of a political theology, but of an anonymous, adaptive oikonomia of crisis management. Law: in suspending the concrete custom and usage of individuals, has been able to isolate something like a norm, so the patient work of civilization proceeds in every domain by separating human praxis from its concrete exercise and thereby creating that excess of signification over denotation that Lévi-Strauss was the first to recognize. In this sense, the floating signifier – this guiding concept in the human sciences of the twentieth century – corresponds to the state of exception, in which the norm is in force without being applied.137

136 Ibid: 36. 137 2005: 37.

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In suspending praxis from being in God’s essence in Christological oikonomia the ‘patient work of theology’ proceeds at every moment to isolate something like a divine essence or a Law of law and to found law in its oikonomic relation to a virtual excess.

A gigantomachy concerning a void The archetype of the modern conception of the state of exception is located, according to Agamben, in the ancient Roman concept of the Iustitium, which signifies a standstill or suspension of the law. This is how Agamben describes this archetypical paradigm of the state of exception: Upon learning of a situation that endangered the Republic, the Senate would issue a senatus consultum ultimum [final decree of the Senate] by which it called upon the consuls (or those in Rome who acted in their stead: interrex or proconsuls) and, in some cases, all citizens, to take whatever measures they considered necessary for the salvation of the state (rem publicam defendant, operamque dent ne quid respublica detrimenti capiat [Let them defend the state, and see to it that no harm come to the state]). At the base of the senatus consultum was a decree declaring a tumultus (that is, an emergency situation in Rome resulting from a foreign war, insurrection or civil war), which usually led to the proclamation of a iustitium (iustitium edicere or indicere [to proclaim or declare a iustitium]).138 The iustitium suspends the law and puts all legal prescriptions out of operation and neutralizes the law for the sake of expediency in a situation of necessity. The paradox that was witnessed throughout earlier times is still witnessed today and it is that in order to save the juridical and political realm the law is not executed or transgressed but is rather set aside or suspended. The following points summarize Agamben’s thesis: (1) The state of exception is not a dictatorship (whether constitutional or unconstitutional, commissarial or sovereign), but a space devoid of law, an anomie, where the law is set aside while remaining in force. The state of exception is neither outside nor inside the legal order. It is not even a norm, a higher norm that could be indirectly linked to the juridical order (as in Schmitt): Thus, all theories that seek to annex the state of exception immediately to the law are false; and so too are both the theory of necessity as the originary source of law and the theory that sees the state of exception as

138 Ibid: 41.

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the exercise of a state’s right to its own defence or as the restoration of an originary pleromatic state of the law (‘full powers’). But fallacious too are those theories, like Schmitt’s, that seek to inscribe the state of exception indirectly within a juridical context by grounding it in the division between norms of law and norms of the realization of law, between constituent power and constituted power, between norm and decision.139 For Agamben the state of exception is a space without law that is presupposed by the division between being and action, norm and execution. What is decisive is the creation of a space without law (its fiction or mere hypothesis) in order to found the law as sovereign. The space without law is of such decisive strategic value to the law that it ‘must not be allowed to slip away at any cost’.140 Thus, acts performed during the suspension of the law escape legal definition since they are neither executions, legislations nor transgressions of the law. (2) When Derrida, in his famous discussion of Benjamin’s analysis of violence in ‘The Force of Law: The Mystical Foundations of Authority’ includes in his title the peculiar formula ‘force-of-law’, he notes something crucial (that however remains undeveloped in his piece). To conceive of the state of exception as an anomic space, a space without law, a space of pure force of law, to use Derrida’s title, suggests that in modernity the efficacy of the law and its force (as evident in exceptional decrees) are separated through their hidden functional relation. The syntagma force of law needs to be reread as force-of-law. Agamben writes: The idea of a force-of-law is a response to this undefinability and this nonplace. It is as if the suspension of law freed a force or a mystical element, a sort of legal mana, that both the ruling power and its adversaries seek to appropriate. Force of law that is separate from the law, floating imperium, being-in-force [vigenza] without application, and, more generally, the idea of a sort of ‘degree zero’ of the law – all these are fictions through which the law attempts to encompass its own absence and to appropriate the state of exception, or at least to assure itself a relation with it.141 That the force of law is an image-suffused mythologeme or fiction does not diminish at all its effectiveness because it captures in itself all that is possible (absolute potentiality) and it is this particularly spectacular function of capturing potentiality and the imagination that empties out every realm of social life today.

139 Ibid: 50–1. 140 Ibid: 51. 141 Ibid.

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When Schmitt, in Political Theology, abandons the terms constituent and constituted power and focuses on the decision, he strategically moves against Benjamin’s critique of law-making and law-preserving violence.142 Schmitt attempts to neutralize the figuration of pure violence that Benjamin advanced in a conversation that did not directly take place between the two thinkers, and yet which resembles the ‘conversation’ that takes place continuously ever since between jurists on the right and the left. Schmitt’s sovereign neither makes nor preserves the law, but suspends it. To Benjamin’s undecidability as the foundation of law, Schmitt counter-poses sovereignty as the time-space of decision in the extreme case (exception, ausnahmezustand ).143 Undecidability must be decided. Further, in order to neutralize Benjamin’s pure violence, Schmitt ensures that this time-space is neither within nor outside the juridical. Agamben writes: And just as pure violence, according to Benjamin, cannot be recognized as such by means of a decision [. . .], so too for Schmitt ‘it is impossible to ascertain with complete clarity when a situation of necessity exists, nor can one spell out, with regard to content, what may take place in such a case when it is truly a matter of an extreme situation of necessity and of how it is to be eliminated’ (Schmitt, 1922, 9/6–7); yet, with a strategic inversion, this impossibility is precisely what grounds the necessity of sovereign decision.144 What for Benjamin needs to be assaulted (the virtual state of the exception), for Schmitt needs to be decided upon and preserved in order to ensure the relation to the fiction of anomie as the originary juridical context. It is because of this differentiation that Benjamin’s baroque sovereign is incapable of deciding, while Schmitt’s sovereign must forever undertake to decide and divide the undecidable. Between norm or power generally and its application or exercise, a gap is shown to exist that knows no immediate mending, and no decision can fill it other than a belief, as in Schmitt, in an extra-juridical miracle or a catastrophe, where and when the sovereign can reclaim his relationship to God.145 What for Schmitt serves to maintain the oppressive relation between anomie and law, for Benjamin signals the need for a new way of thinking and acting that ends any kind of relation between anomie and law and any kind of nexus between violence and law. Today, where the state of exception is ‘the state in which we live’, the exception can no longer be distinguished from the rule. The fictio iuris of

142 143 144 145

See also Taubes, 1987. On the relationship between Schmitt and Benjamin see Weber, 1992. See the discussion in Agamben, 2005: 54–6. Ibid: 55. Ibid: 56–7.

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the exception that attempts each time to mask the annexation of anomie (a space without law) to State power and law, cannot be challenged without always-already returning the fiction of the exception to the fiction of a normal relation of anomie to law, completing, thus, the vicious circle of the dialectic of the pseudo-bipolar machine. To the fiction of a space without law as anomie defined in the state of exception, Benjamin responds with the claim to a ‘real’ (as opposed to a fictional ) state of exception, which has been too easily misunderstood. If there is a ‘thing’ of genuine politics and ethics then it is to remember not a thing that allegedly was or a thing that could have been differently, but which cannot be otherwise any longer, but a thing that never was. Agamben has described this as a gigantomachia over a void, an anomic space, an empty space, a juridical vacuum or pure being. In this sense everything becomes more complicated regarding any attempt to understand the bipolarity that is founded by the assumed scission between anomie and nomos. In addition, Benjamin’s counter-strategy needs to be rethought as a strategy that aims to depose this dialectic of position and counter-position (or ultra-position). Instead: pure violence (which is the name Benjamin gives to human action that neither makes nor preserves law) is not an originary figure of human action that at a certain point is captured and inscribed within the juridical order (just as there is not, for speaking man, a pre-linguistic reality that at a certain point falls into language). It is, rather, only the stake in the conflict over the state of exception, what results from it and, in this way only, is supposed prior to the law.146 Pure violence is compromised by its exceptional nature in itself, which ultimately betrays a juridical structure. Purity, however, understood in a messianic form, does not signify yet another absolute form of violence or power. Whereas the juridico-political machine attempts always to subdue every claim for or against it in relation to a discussion of evaluating different ends and using violence as a means to an end, Benjamin’s conception of this particular type of violence is characterized not by some intrinsic property that differentiates it from juridical means, but by its strategic relation to them as a stake in the struggle with them. Such a strategy exposes the pseudonature of the juridical exception. Pure violence does not communicate or act out a means to an end or an unspoilt pure means, but its own mediality as such, its making, deposing the supposed transcendental relation between law and life as a fictio iuris, and severing the nexus between them. Pure violence as a limited strategy cannot propose a new relation between law and life, a ‘less

146 Ibid: 60.

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violent’ one, but can only insist on the impossibility of an essential relation. Pure violence, in this sense, opens the way not to the conception of a new law or a new pre-political reglorified body, but to the deposition of the law of glory and points to the genuine study of law and tradition in a truly human guise, rather than through this or that model of sovereignty-suffused power; but on this, more will be said in Chapter 6. To the law of the one (sovereignty as the decision on the non-juridical) stands opposed the law of the two (the non-relation between the juridical and the non-juridical). Excursus: Reiner Schürmann writes in his study entitled Heidegger – On Being and Acting: From Principles to Anarchy 147: ‘ “Metaphysics” is [. . .] the title for that ensemble of speculative efforts with a view to a model, a canon, a principium for action.’148 The prime reference, which practical philosophy (and political theology for that matter) has traditionally borrowed from first philosophy is the reference to an origin, a principle, an arche¯ . Metaphysically an-archy in this sense does not become operative until the moment when the fiction of an origin, an original and constant presence, folds up and closes upon itself. Schürmann writes, thus: For Western culture, things manifold have been frozen – diversely of course, according to the epochs – around a first truth or a rational principium. Since the attributive schema has moreover been exported into practical philosophy, these rational principles delineate the structure in which is located the princeps, the authority to which all that is feasible in an era is referred.149 Metaphysics designates a disposition, a apparatus, which seeks to safeguard an economic relation between words, things and deeds with a principle or an arche¯ , a foundation, an essence and so forth. If it is true that an apparatus always separates what it captures from a presupposed outside, then each arche¯ is always related to an an-arche¯ (anarchy) through its exclusion. When Agamben, referring to the apparatus of oikonomia, suggests that beneath its doctrinal structures lies the concealment of an-arche¯ of the empty throne, he is not referring to a mere contradiction or a juxtaposition set for future dialectical reconciliation. Anarche¯ does not stand for a programme of action, and hence the misunderstanding that could lead one here to the conventional realm of anarchy, as conceived by the masters of anarchic thinking (Proudhon and Bakunin), could lead also to the presumption that anarche¯ remains, in the sense used and criticized by Agamben, a return to a supposed first principle. Instead, anarche¯ signifies not another attempt to master the

147 1986. 148 Ibid: 4. 149 Ibid: 5.

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world, but the concealment of the fact that the world is unmasterable. This unmasterability of the world is, perhaps, what the Church Fathers attempted to reconcile with governmentality along with the later thinkers of providence. Instead, for Agamben the world is unmasterable, without a master or first principle and hence the world is irreparably dislocated from the attributive schema of metaphysics. Anarche¯ does remain, however, contra Schürmann, a problematic archprinciple (the principle for where principles are lacking; akin to the form of the state of exception) and as such it is what is presupposed by every sovereign principle (a meta-principle), that is, it is an essential doxological part of the oikonomic apparatus and of government. In terms of political thinking, and political theology in particular, no other concept manifests and reveals this paradox better than the fiction of sovereignty (the paradox consists in that sovereignty founds its absolute character and power on the basis of an anarchic ground, an empty throne, an outside, an anomie). One key question, then, is why if sovereignty is the absolute principle of authority and action, must it retain a relation to an alleged outside, an anarchy, or a state of exception? The two paradigms that Christianity has provided can be seen to have directly affected the conception of law, in modernity, where law is seen as entailing two analogous paradigms. On the one hand, there is a notion of law as infallible, which requires ultimacy, as well as a distinct persona ficta to represent it (Laws of nature, divine law, sovereignty, democracy and so forth); a Law that is self-instituted, universal, silent, autarchic, unstoppable as to its enforcement, and observed through exclusive and ‘sacred’ procedures that glorify its autonomy. On the other hand, there is a notion of law as a legal order, an institution with administrative personnel comprising lawyers, judges and legislators, policy-makers and academics. The two polarities of law are functionally related and are based on the idea that the fiction of sovereignty (i.e. that the world or civil society is governable and more so on the basis of a principium derived from an original transcendent ‘Law of law’) can guarantee the order of law so that government, oikonomia, will be ultimately unproblematic: what is possible is what the master, the master-principle or arche¯ allows (as in the classic understanding of sovereignty where the power of the sovereign consists in allowing life and exceptionally imposing death on subjects). However, if the master-principle derives from such a fictional first notion of Law (Law of law), then this soothing idea (which is necessarily placed out of reach of law) is problematic even within its own logic, since even such a master cannot preclude the possibility of something happening which escapes the logic of this masterability (contingency is transformed into collateral effects as suggested in the previous chapter). Hence, the need, in modernity, for a functional relation to be established with another notion of law (an immanent legal order) where such happenings can be encompassed in an ever-enlarged oikonomic horizon (various names are given to this horizon: family, empire, church, state and so forth). The

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alleged political theology or metaphysics of such a master is enabled in this manner to redefine and nullify its horizon of experience to include first what has not yet been experienced (which includes what may never be experienced) as a source of potential power. In this sense, absolute power takes the form of a Law (of law) that emanates from the presupposition or fiction of a counterfactual lawgiver. If this ‘Law of law’ remains a semi-transcendent state (as the potentiality of law) and manifests the ultimate source of the force of law even after all supposed transcendent sources of law are abandoned, it forms within a threshold where potentiality and actuality can no longer be distinguished. This is the form of oikonomic governance. Through an economic relation between an absolute potentiality and an administrative actuality that seemingly exhausts potentiality (while relating itself to a sovereign residue of potentiality), the aporia of exceptional measures is to be managed through dislocating contingency into the realm of continuous collateral effects. The legal capture of the outside (exception, contingency) of the ordinary rule, in this sense, becomes of paramount importance for law and order (oikonomia) in both a normative, regulatory (or governmental) and in an ontological sense. For as long as this schema is prevalent, the institutional or administrative conception of law as a bipolar order remains functionally related to the syntagma ‘Law-of-law’, through an ineffable threshold formed between law and fact, inside and outside. It is customary to assume an element of ‘progress’ in the narrative of legal development in modernity from this ‘old’ syntagma to what can be called legislative sovereignty or modern autonomy. However, when in later modernity this very threshold is shown to be what it really is (a zone of indistinction), the understanding of law becomes not simpler, but more complex. The anxiety over the question ‘is a human society or community governable?’ increases the need for intensified archi-tectonics and dogmatic justifications of law and of power. It is perhaps not too surprising to note how in each epoch, as older foundations dissipate, more and more dogmatic elements are employed to spectacularly justify the governability of the world and the necessity of subjection and administration, only to conceal each time the emptiness of the arche¯ , the vacuity of the throne, the inoperativity of the sovereign and to make a mystery out of the ungovernability of the world. Every time the ungovernability of the world is glimpsed overcoming the threat of this fact is posed as necessary and vital, even if, as witnessed today, the apparatus of the ‘Law of law’ hovers ultimately like an anonymous, silent and yet effective and incessant oikonomic preparation (hetoimasia) of an empty throne.

Chapter 4

The biopolitical nomos of insignificant lives

Introductory note Agamben’s work can be read as a critique of society and as a diagnosis of cultural crisis and its focus, in the project entitled Homo Sacer, is the relation between law and life, that is, the institutional integration of life. It is useful at this point to summarize Agamben’s position regarding this relation, before elaborating on it in more detail. In light of the dogma of secular sovereignty or civil society, in the absence of a point of transcendental support for authority and authenticity, sovereign governmentality requires, from inception, an intimate relation between sovereignty and subjectivity. But such a production of subjectivity in its intimate link to the image-suffused secular sovereignty ‘in the name of the people’ or ‘in the name of the law’ solves the embarrassing difficulty of instituting a counterfactual, a priori, legally or politically qualified subjectivity by displacing or excluding what it considers each time to be waste. But it does not stop there since it requires the zone of bare life be turned into its own everpoliticizable territory. Sovereign is he who decides on who is, each time, (un)political waste. In actual fact, the decision on the exception to the rule is a decision on the distinction between political life and politically nondescript waste or bare life. But the even more crucial point in Agamben’s analysis is that this exclusion provides the nutrient of every sovereign power. It does so in the sense that the realm of the remainder, or of waste, can be used as an apparatus that enables it to function as an ever-colonizable, indefinitely politicizable realm. Bare life or waste is, thus, conceived as both what is placed outside the polis and what is singled out as the reservoir of proper political praxis. Sovereign power can only then be entangled in paradoxes of its own making. Agamben’s preoccupation with the genealogy of Western power views power as a perpetual seizure of power (rather than being first founded and then progressing through time) that presupposes, through a juridico-political act, a realm of bare life that is characterized by an absence of status. This act, however, does not mark a life that is impossible to observe or qualify, but the

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origination of an ever-denied historically existent social category. Contrary to conventional approaches that attempt to register and recognize the excluded waste in order to propose recovery through a politics of recognition or a meaningless universal solidarity (that can only leave the mechanism of the historical production of bare life intact), Agamben makes the historical production of remnants and remainders of juridico-political life as his geneaological and ethical preoccupation. His aim is to show the historical origin of the separation of bare life and to insist on the now permanent stratum of dehumanization that threatens to cover the globe. Only if the mechanism that perpetuates such a dehumanization is deconstructed and stopped will a different conception and praxis of political life be made possible.

The paradigm of the Homo Sacer In Homo Sacer Agamben notes, on the basis of Pindar’s famous fragment of nomos basileus, that the sovereign nomos (law): is the principle that, joining law and violence, threatens them with indistinction. In this sense, Pindar’s fragment on the nomos basileus contains the hidden paradigm guiding every successive definition of sovereignty: the sovereign is the point of indistinction between violence and law, the threshold on which violence passes into law and law passes over into violence.1 In the same way that qualified life (in politics and law) presupposes, at the same time that it produces, the distinction between itself and bare life (which in Hobbes, as a state of nature, is opposed to the commonwealth), nomos is grounded on the presupposition and production of a mythologeme of physis, nature (as separable from nomos or culture). This state of nature, and as such violence, becomes the being-in-potentiality of the law, ‘the law’s self-presupposition as natural law’.2 Violence in the so-called state of nature, as a presupposition of law, is both presupposed and produced by law (nomos), which in this manner captures (at the same time that it is captured by) a mythologeme of exteriority. The paradox lies in the fact that the alleged exteriority of law forms its innermost centre (which becomes most visible when the State or the juridical system is considered as dissolved). What appears at the moment of dissolution is the (juridical and metaphysical) state of exception that renders what is presupposed as external (the state of nature)

1 1998a: 32–3. The famous fragment 169 of Pindar is rendered like this: ‘The nomos, sovereign of all,/ Of mortals and immortals,/ Leads with the strongest hand,/ Justifying the most violent./ I judge this from the works of Hercules.’; as quoted in ibid: 30. 2 Ibid: 36.

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as internal (exception as the nomos of the law) to the legal system, so that physis and nomos form a zone of indistinction. In modernity when the so-called ‘sacredness’ of life is ever more assigned to human life (i.e. through human rights), it destines human life to a presupposed pre-political state of guilt. This is why Agamben takes seriously the exploration of the suggestion by Benjamin as to the peculiar dogma of the sacredness of life: ‘Perhaps, [. . .], the last mistaken attempt of the weakened Western tradition to seek the saint that it has lost in cosmological impenetrability.’3 While for the ancient distinction between zoe¯ and bios the assignment of sacredness to life appears all but impossible, the question that is formed here is ‘when and in what way did a human life first come to be considered sacred in itself ?’4 Agamben’s analysis of the term homo sacer begins with the passage of Pompeius Festus in his treatise On the Significance of Words, which, under the heading sacer mons, preserved the memory of a figure of archaic Roman law in which ‘the character of sacredness is tied for the first time to a human life as such’.5 The passage in question is this: At homo sacer is est, quem populus iudivacit ob maleficium; neque fas est eum immolari, sed qu occidit, parricidi non damnatur; nam lege tribunicia prima cavetur ‘si quis eum, qui eo plebei scito sacer sit, occiderit parricidia ne sit.’ Ex quo quivis homo malus atque improbus sacer appellari solet. (De verborum significatione).6 The paradox in this formula of homo sacer is that the person who is called sacred is nonetheless subject to an authorized killing, which, however, cannot be a sacrifice (the word used here is immolari, but the connection to sacrifice is evident in the sources and practices in question). Agamben confirms the apparent contradiction in question through quoting Macrobius’s definition of sacrum as what is destined to the gods and adds: ‘At this point it does not seem out of place to consider the status of those men whom the law declares to be sacred to certain divinities, for I am not unaware that it appears strange [mirum videri] to some people that while it is forbidden to violate any sacred thing whatsoever, it is permitted to kill the sacred man.’7 The paradox in question is double: not only are those persons named sacred and devoted to

3 4 5 6

Agamben quoting Benjamin in ibid: 66. Ibid: 67. Ibid: 71. Ibid. In translation it is rendered as: ‘The sacred man is the one whom the people have judged on account of a crime. It is not permitted to sacrifice this man, yet he who kills him will not be condemned for homicide; in the first tribunitian law, in fact, it is noted that “if someone kills the one who is sacred according to the plebiscite, it will not be considered homicide.” This is why it is customary for a bad or impure man to be called sacred.’ 7 Ibid: 72.

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the gods, but at the same time they are able to be killed (but not sacrificed) and yet their death would not amount to homicide. The immediate, but misguided, response to the first part of the paradox would be to suggest that: ‘sacratio is a weakened and secularized residue of an archaic phase in which religious law was not yet distinguished from penal law and the death sentence appeared as a sacrifice to the gods’.8 This response, Agamben suggests, cannot explain the ban on sacrifice. This response is further misguided since this ‘transition’ between a pre-law and a law or a pre-religion and a religion is a mythologeme. As such, to speak of ‘residues’ is to presuppose a fictional distinction that fails to account for itself. It is, however, even more misguided since it confuses sacratio in the sense of homo sacer with a supposed preexisting religious category of sacredness. The other response that remains possible and to which Agamben refers is to consider sacratio as bearing the traces of ‘an archetypical figure of the sacred – consecration to the gods of the underworld – which is analogous to the ethnological notion of taboo: august and damned, worthy of veneration and provoking horror’.9 Agamben shows the problem with this type of response by posing the following question: ‘If homo sacer was impure (Fowler: taboo) or the property of the gods (Kerényi), then why could anyone kill him without either contaminating himself or committing sacrilege?’10 Homo sacer remains both outside ius humanum and ius divinum while at the same time it is defined and produced within those two juridical realms. The only thing that can explain this structural depositioning of the homo sacer is if it is understood as formed on the basis of a threshold between the two juridical realms that forms effectively a state of exception to both (neither homicide nor sacrifice). The juridical realm presupposes and is produced by a state of exception, that is, by the fiction of an outside, a non-juridical realm. The phenomenon of bare life needs to be re-examined to uncover not a protoreligious or a pre-juridical structure, but an originary political one (and indeed one that is located prior to the distinction between religious and juridical).11 The problem posed by the interpretation of sacratio on the basis of the theorem as to the ambivalence of the sacred (that relies on the presupposition of a time when religion and law were not distinguished and on the ‘finding’ of a religious remnant, which is psychologized in the form of taboo), survives in the present. Agamben writes that when the category of sacredness loses its significance (in the presupposed transition from the pre-historical or archaic period of human history, when the sacred and impure were characteristic, to 8 Ibid: 72–3; Agamben refers to Mommsen, 1889; Lange, 1887; Bennett, 1930 and StrachanDavidson, 1912. 9 Ibid: 73; Agamben refers to Kerényi, 1940 and Fowler, 1920. 10 Ibid. 11 See ibid: 74.

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the modern period when the moderns express their unease before the religious fact), ‘a theology that had lost all experience of the revealed word celebrated its union with a philosophy that had abandoned all sobriety in the face of feeling’.12 The term ‘sacred’ thus assumes contradictory meanings that are simultaneously accommodated: For the religious phenomenon, this moment coincides with the point at which anthropology – for which the ambivalent terms mana, taboo, and sacer are absolutely central – was born at the end of the century. Lévi-Strauss has shown how the term mana functions as an excessive signifier with no meaning other than that of marking an excess of the signifying function over all signifieds.13 In the sphere of the juridical it could be analogously claimed, perhaps, that terms such as dignity, justice, order and sovereignty – which are conceived as absolutely crucial – assume contradictory meanings in a similar way on the basis of the ambivalence of the term ‘human law’ (who some, for instance, saw as being in direct relation with the ‘more’ archaic natural or religious assertions of law or ‘before’ law; and others as in direct contradiction – and yet in this manner in relation – to the realms of nature, religion and absolute power). What is covered over in such attempts is that human law (in the widest possible sense) can only refer to e¯ thos, a way of being, rather than to a transcendental law, nature, proto-religion or pre-political state. The notion of human law as understood today refers not to some natural state or to a mere way of being, but instead to a juridico-political phenomenon (the inclusion of the human via its exclusion) at the very same time that it is posed as a ‘floating signifier’ a form of universalism (i.e. humanity). Similarly, the most ancient meaning of the term sacer does not refer to religion or law, but to a juridico-political phenomenon (homo sacer). Ambivalence or ambiguity (itself a juridical term, ambigere) cannot therefore be an adequate response to the enigma of the alleged sacredness of life since it is itself in need of explanation. The category of the sacred (and in law, further, the category of the human) cannot be seen as either the secularized residue of the originary religious character of every political power or as the attempt to grant the latter a theological foundation. The structure of sacratio, as analysed by Agamben, entails two elements: (1) the unpunishability of killing (impune occidi), which suspends the application of the criminal law on homicide and thus can be seen to function as an exception to it; (2) the exclusion of sacratio from sacrifice (neque fas est eum immolari), which can be seen to function as an exception to the ius

12 Ibid: 78. 13 Ibid: 80.

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divinum and every form of ritual killing as purification.14 The fact that these two elements form exceptions to ius humanum and ius divinum leads to the necessary questioning of the alleged autonomy of sacratio. The extreme case (homo sacer, state of exception) does not merely supplement or detract from the norm, but actually produces the norm: it is where the originary force of the norm lies. The exclusion of homo sacer from human law does not serve the return of the notion to the realm of divine law, but instead points to an autonomous region, a zone of indistinction between the alleged polarities. A double exception describes the form and experience of homo sacer that is at the same time a double capture. Agamben writes: ‘Just as the law, in the sovereign exception, applies to the exceptional case in no longer applying and in withdrawing from it, so homo sacer belongs to God in the form of unsacrificability and is included in the community in the form of being able to be killed. Life that cannot be sacrificed and yet may be killed is sacred life.’15 The double exclusion and the exposure to violence are particular to the figure of homo sacer. Between the spheres of the profane and sacrum facere lies a sphere of human action that is encompassed by neither of the two. As such homo sacer is the figure of an originary exclusion that constitutes (at the same time that it is constituted by) the political dimension. In this sense, the originary sphere of the political is that of being abandoned to a sphere of human action in which it is permitted to kill without committing homicide and without celebrating a sacrifice. Sacred life is the life that is captured in this sphere. The implied symmetry between homo sacer and the sovereign is considered below. For now it needs to be repeated that homo sacer indicates a life that is merely capable of being killed and which, as a presupposition, founds the ius humanum and the ius divinum at the same time as it is formed to exceed both. In this sense the characteristics of homo sacer can be reformulated as follows: (1) exclusion from the polis; (2) exception to the law (divine and human); and (3) exposure to violence (death). Life exposed to death is the originary political element. Agamben goes on to illustrate and reconsider this element on the basis of the Roman vitae necisque potestas, which designated not sovereign authority, to start with, but the unconditional power of the father over his sons, which is a power that follows as if immediately from the father–son relation. This, Agamben notes, should not be confused with the more general power to kill, but instead should be understood as outside domestic jurisdiction: as an excessive power that ‘attaches itself to every free male citizen from birth and that seems to define the very model of political power in general’.16

14 Ibid: 81. 15 Ibid: 82. 16 Ibid: 88. See Agamben’s analysis in Part II, Chapter Four.

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Interestingly, Agamben extends his analysis to cover the power of magistrates in relation to the ius patrium and the father’s vitae necisque potestas, where the magistrate adopts the figure of the father as much as that of a magistrate and which later leads to the explicit (and mythic) generalization of power in the hagiographic epithet ‘father of the people’.17 Agamben writes: ‘the magistrate’s imperium is nothing but the father’s vitae necisque potestas extended to all citizens. There is no clearer way to say that the first foundation of political life is a life that may be killed, which is politicized through its very capacity to be killed.’18 The ‘guilt’ of bare life, that is of the inclusion of life in the polis through its exclusion, shows how it is supposed to originate and to be expiated at the same time by ‘giving in’ to an unconditional subjection to a power of death. The oikos and the polis are, thus, formulated on the basis of a distinction between the two terms that presupposes (for both sides) a zone of indistinction where such an unconditional power can find its source (in the polis as much as the oikos every power is conditioned by its field of rule), that is, its point of emergence from a supposed degree zero of power whose subject is bare life. It is in this manner that the analysis of Kantorowicz as to the mythologeme of the King’s two bodies, as examined in Chapter 1 of this work, can be revisited in order to shed new light on it. In Homo Sacer, Agamben provides a crucial key to the reconsideration of this mythologeme of the ‘mystical’ or ‘political’ body of the sovereign (as well of the more general mythologeme of political theology as such). Agamben, without disregarding the importance of Kantorowicz’s study, asks whether this work can really be read only as a demystification of political theology. Agamben notes that Kantorowicz was not unaware of the more ancient pagan (Roman) connection of the double funeral ceremony in question with the practice of consecratio, as well as with the earlier French rite.19 Agamben suggests that the putting aside by Kantorowicz of the pagan derivation of the image ceremony threatened his thesis since, if taken into account, it would have to be reconfigured to examine a ‘darker zone’ aside from that of perpetuity. For Agamben an analysis was offered in 1972 by Bickermann, which placed ‘the imaginary imperial funeral in relation to a rite required for the warrior who, after having solemnly dedicated himself to the Manes gods before fighting, does not die in battle (Consecratio, 22)’20 This is a clear example of the intimate relation (indistinction) between the body of the sovereign and the body of homo sacer. The rite in question refers to the devotus (devotee) who ‘consecrates his own life to the

17 18 19 20

Ibid. Ibid: 89. See ibid: 92–4. Ibid: 95–6.

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gods of the underworld in order to save the city from a grave danger’.21 The proximity of the figure of the devotee and that of the homo sacer is not exhausted in the fact that both are consecrated to death and belong to gods (though not through a sacrifice). There is a significant difference between the figure of the sovereign body and that of the devotee, namely the fact that in the case of the sovereign body the rite is followed when confronted with the death of the sovereign, while in the case of the devotee it is the survival of the warrior that requires the ritual in question. What happens in this rite with regard to the devotee is that a signum (a colossus), his double, takes the place of the ‘missing corpse’ (despite the survival), and forms a powerful image of a devotee ancestor that is separated from the realm of the living (as much as from the realm of the dead). Agamben writes: Until this rite is performed, the surviving devotee is a paradoxical being, who, while seeming to lead a normal life, in fact exists on a threshold that belongs neither to the world of the living nor to the world of the dead: he is a living dead man, or a living man who is actually a larva, and the colossus represents the very consecrated life that was, at the moment of the ritual by which he became a devotus, virtually separated from him.22 In a similar sense, the body of the homo sacer in its subjection to a power of death (though not a consecration) becomes a symbiotic ‘colossus of himself ’, a life that can not any longer dwell in the city.23 In the case of the double funeral of the emperor the rite makes it possible to produce a sacred life that is to be divinized in its apotheosis where, in effect, the sovereign can be seen to assume within himself the life held in his power (sacred life). In this manner, the King’s double represents not simply the perpetuity of the mythologeme of sovereign power, but more so the excess of sacred life which is: isolated in the image and then, in the Roman ritual carried to the heavens, or, in the French and English rite, passed on to the designated successor. However, once this is acknowledged, the metaphor of the political body appears no longer as the symbol of the perpetuity of dignitas, but rather as the cipher of the absolute and inhuman character of sovereignty.24 Sovereign power’s absolute character receives its strength on the basis of

21 22 23 24

Ibid: 96. Ibid: 99. Ibid. Ibid: 101.

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the hidden tie to a life that can be killed, but not sacrificed (manifested not just in the figure of homo sacer but also in the sovereign’s double). The King, in this mythological sense, never dies and it could also be said in parallel that homo sacer, in this sense, never dies a ‘proper’ death (neither a mere death, a passing away, nor a homicide nor a sacrifice). The King can be killed physically, though he cannot be killed by a simple act of homicide (instead, juridically, it constitutes a special crime), but his absolute power never dies and cannot even be sacrificed (for instance, juridically speaking, the sovereign can only be tried under special circumstances and procedures and not through a normal trial).25 Homo sacer can be killed, but not sacrificed and he can only be killed as ‘mere bare life’, as ‘lice’. This confirms the complex fact that bare life characterized also the mythological foundation both of homo sacer and of the absolute power of the sovereign. Agamben writes: This is why the thesis stated at the logico-formal level, [. . .], according to which the originary juridico-political relation is the ban, not only is a thesis concerning the formal structure of sovereignty but also has a substantial character, since what the ban holds together is precisely bare life and sovereign power. All representations of the originary political act as a contract or convention marking the passage from nature to the State in a discreet and definite way must be left wholly behind. Here there is, instead, a much more complicated zone of indiscernability between nomos and physis, in which the State tie, having the form of a ban, is always already also non-State and pseudo-nature, and in which nature always already appears as a nomos and the state of exception.26

The production of bare life as a juridico-political act Agamben begins his analysis of the problematic notion of ‘bare life’ in Homo Sacer – Sovereign Power and Bare Life with a note on the old Aristotelian

25 Ibid: 103. Agamben offers a number of other interesting examples of the structure of ban or abandonment through modernity; see generally Part 3 of Agamben, 1998a. On human rights see also Agamben, 2000: 15–27. 26 1998a: 109. The term ban (‘an old Germanic term that designates both exclusion from the community and the command and insignia of the sovereign’) in its modern philosophical use is borrowed here from Jean-Luc Nancy (Agamben criticizes Nancy’s understanding for remaining within the logical structure of the sovereign ban). For Nancy abandonment is always abandonment to a Law (even if ‘law’ in this instance is conceived philosophicojuridically and not strictly-speaking juridically.) The problem is that this schema remains within the logico-formal structure of a ‘Law of law’, the self-presuppositional structure of the mythological foundation of laws. See further Agamben, 1998a: 28 and 58–9 and Nancy, 1993: 36–47.

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distinction between zoe¯ and bios, that is, between ‘the simple fact of living common to all living beings’ and the ‘form or way of living proper to an individual or group’.27 Zoe¯ as simple natural life was at this time set in contrast to the qualified life of the polis. Zoe¯ is understood to be general, simple and natural, while bios is conceived as particular, qualified and artificial. The distinction is problematic since: In the classical world [. . .] simple natural life is excluded from the polis in the strict sense, and remains confined – as merely reproductive life – to the sphere of the oikos, ‘home’ (Politics, 1252a, 26–35). At the beginning of the Politics, Aristotle takes the greatest care to distinguish the oikonomos (the head of an estate) and the despote¯ s (the head of the family), both of whom are concerned with the reproduction and the subsistence of life, from the politician, and he scorns those who think the difference between the two is one of quantity and not of kind. And when Aristotle defined the end of the perfect community in a passage that was to become canonical for the political tradition of the West (1252b, 30), he did so precisely by opposing the simple fact of living (to) to politically qualified life (to eu ze¯ n): ginome¯ n men oun tou se¯ n heneken, ousa de tou eu ze¯ n, ‘born with regard to life, but existing essentially with regard to the good life’.28 Today, as Agamben notes in his Means Without End: Notes on Politics, there is only one term to indicate life ‘the opacity of which increases in proportion to the sacralisation of its referent- [which] designates the naked presupposed common element that it is always possible to isolate in each of the numerous forms of life.’29 It needs to be stressed from the start that Agamben’s analysis is not an attempt to maintain for a distinction between the simple fact of living and the qualified life of an individual (or group) or an attempt to redefine ‘bare life’ anew in order to resort to some nostalgic return to or foundation on a ‘more’ natural or ‘beautiful’ life (and to propose a politics or a law that would emanate from such an alleged original pseudo-transcendental source). Hence, any attempt to suggest that Agamben’s analysis points to some romantic turn towards an archaic, prehistorical, animalistic, neo-humanistic, more beautiful, freer, natural state, origin or essence of life is misplaced from the start. The distinction between zoe¯ and bios, natural life and qualified life, is problematic from as early on as in antiquity. Agamben explains:

27 Agamben, 1998a: 1. 28 Ibid: 2. 29 Agamben, 2000: 3.

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Political power as we know it, [. . .] always founds itself – in the last instance – on the separation of a sphere of naked life from the context of the forms of life [. . .] Thus, life originally appears in law only as the counterpart of a power that threatens death [. . .] The state of exception, which is what the sovereign each and every time decides, takes place precisely when naked life – which normally appears rejoined to the multifarious forms of social life – is explicitly put into question and revoked as the ultimate foundation of political power. The ultimate subject that needs to be at once turned into the exception and included in the city is always naked life.30 The two approaches through which this has been thought in the contemporary are that one can either turn to some old or new form of ‘nature-certainty’, archaic or utopian, to critically supplement globalized technology; or, alternatively, one can appreciate that today it is no longer a nature that is presupposed as self-governing the world, but instead its supposed zero-degree: signposted by the lack of a common being, of ‘any feature, in short, that would transcend the timelessly present network of real-time performances.’31 The latter attitude explains the numbness and rhetorical hypocrisy that accompany the ever-glorious attempts to refer to a global society. Most evidently so, by the way, in that the global or ‘world-government’ of ‘men and things’ has missed from its inception in the post-cold-war era onwards its condition of possibility: the planetary. It is more than ironic, perhaps, that current attempts to consider the planetary condition in the name of pending environmental catastrophe, appears to have missed in its inception the global condition of its possibility (where the West appears to impose its own ill-conceived plan upon the rest of the world). Yet, contrary to the long-held Western assumption that the world is governable, what is shown, instead, in the current phase of the global political spectacle, is that the world’s government or even self-government (through, for example, the apparatus of the free market) has always been founded through what can be described philosophically as a negative metaphysics of a ground that prescribes or commands nothing (nothing other than the mere presupposition of governability). That is, it has been conceived as a ground or foundation that is marked by its absence, while its messengers and administrators (the benefactors of humankind) act or govern as if it were ever-present. This results in a pseudo-paradoxical state of things where the self-governing of the world is predicated on the zero-degree of mere governability, that is, on its having no other foundation than the absence of a foundation, a bare – absolute – ground without content.

30 Ibid: 5–6. 31 Schütz, 2008: 118.

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If understood in this sense, the presupposition of bare life operates in parallel, and stands as the condition of possibility itself, of the presupposition of sovereignty’s and government’s an-arche (the lack of a foundation, even a self-foundation, other than its emptiness or absence.)32 This, perhaps, serves to explain the intrinsic indeterminateness of biopolitics today, as well as the spectacular banality of its promise of a ‘better life’. Current, largely ad hoc, attempts to alleviate the perhaps global recession are above all biopolitical and economic measures upon which are built hopes not of a radically different understanding of the world and of the economy, but of mere survival. In this regard, Anton Schütz has argued that the three notions that form at the crossroads the core of Agamben’s observations in Homo Sacer (Michel Foucault’s biopolitics, Benjamin’s concept of bare life and the figure of homo sacer) have the following in common: ‘apart from the fact that each of them expresses the notion of an inconsistent universal law – is a legal order which, while suffering no exception as to its validity, at every point coexists also with its own lawlessness.’33 The inherent ambivalence in the structural coupling of law with lawlessness, or nomos with anomia, of oikonomia and emergency, is founded on the structure, which Agamben calls ban, borrowing the term from Jean-Luc Nancy, and which characterizes the function of all alleged transcendental foundations (not just of law, but also of politics, globality, the nature of humanity and so forth).34 No excess of theorizing is required to understand this ban-structure empirically: the ‘collateral’ casualties of the current conflict in Palestine claimed as necessary by both the Israeli government and army and by Hamas, respectively, makes any claim as to the humanist idea of the bare and transcending value of any human life simply preposterous. And so do the ‘collateral’ casualties of the economic crisis. The fact that certain forms of life are rendered insignificant, exposed and abandoned renders such ideas meaningless, if not suspicious for their hypocritical use. Schütz points to the strictly legal dimension of this ban-structure in the following key passage: The sacredness of the homo sacer transforms his life by banning it and abandoning it to a necessarily insignificant death. This tension in the semantics of the word ‘abandon’ between its two components ‘to leave somebody to himself ’, ‘to give somebody into the ban’ – two clearly diverging meanings that the word nonetheless authenticates equally and simultaneously – is not discussed. To declare an individual lawless, deprived of legal protection, is equivalent to suspending a certain type of

32 See Agamben, 2007b. 33 Schütz, 2008: 122. 34 Nancy, 1993.

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institutional flourishing, of effective legal rule or command: rather than clamping down on the culprit, the legal order chooses to ‘withdraw’ from him, limiting itself to revoking certain rights it had granted, thereby simultaneously falling back into a status quo ante. This amounts only to a relatively or at least potentially harmless partial cancellation or selfcancellation of the legal order, a downgrading of the level of legal protection, a withdrawal of the legal order, a ‘deregulation’. There is, however, undecidably, another sense of lawlessness as well, which is entirely located within the legal order, and according to which lawlessness in itself is registered as a legal status. Instead of being a mere exclusion or revocation from a title or a right, of a dismissal out of the commonwealth into the legally untouched state of nature, the lawless, or the excluded, here remain perfectly ‘included’ in the legal order, as lawless and no longer enjoying protection. All this constitutes the positive predicament of ‘ban’. While, technically (and logically) speaking, lawlessness is thus a perfectly negative determination, the non-role which embodies lawlessness is positively identifiable, and so is the life that awaits its incumbent.35 Through this technology of governmental economy forms of life are endowed with their own negative representation (bare life), and law is endowed with the ‘dignity of being its own negative representative by the idea of investing it with the role of being its own sign or pseudonym or, finally, the monument of its own disappearance’.36 It is precisely this twin endowment that Agamben opposes. The assault on sacrifice, collateral casualties, Laws of law, pseudotranscendental foundations of the polis and so forth are structural-functional mechanisms whose spectacularization (their resort to a negative image, rather than the factual existence of an author) should not point to the inquest of the supposed proto-religious, pre-juridical, natural or other bearing of the sacralized referent in each instance, but instead to the deconstructive study of the pseudo-bipolarity that is presumed to operate between law/lawlessness, forms of life/bare life and so forth. As will be suggested below, deconstruction here does not point to infinite deferral, but to a particular act of destruction. What is at stake is the ‘final assault’ on the sacrificial mythologeme of Laws of law, or essences, that is, on the pseudo-transcendental foundations of the polis and of the human. Such an assault does not point to yet another inquest into the supposed proto-religious, pre-juridical, natural or other bearing of the sacralized referent in each instance, but instead to the study and elimination of the pseudo-bipolarity that is presumed to operate between law/ lawlessness, forms of life/bare life, the pre-political and politics.

35 Schütz, 2008: 125–6. 36 Ibid: 127.

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The approach which is characterized as anti-juridical, in Foucault and in Agamben, opposes such a hyperbolic and tragic interpretation of life, politics and power by pointing to the comedy (the exposition) of the mythic powers of the law if understood as grounded the pseudo-transcendence of the law presenting itself, each time, as a safeguard against what it originally presupposes as its very vacuous, an-archic, foundation, its anomy. It is through this that an allegedly primordial guilt is implied and reproduced in a selfaccusatory delirium of human beings.37 In this presupposed modality it is human beings who need to cognize that they falsely accuse themselves of guilt over something that they have never committed (their inability to access the ineffable centre of their power, the impossible so-called origin of their being, their bare life) and through which veiling of the self-slanderous manner of the accusation the sovereign messengers of a so-called original foundation of the law or of the polis (from ‘time immemorial’) found the seed of a pseudo-superior power. The original deception that is installed at this presumed foundational point is the understanding of the law through the allegedly necessary submission to its supposed phantasmatic sovereignty or superiority. In contrast, in Agamben’s understanding of the law the manner of understanding at stake as such is not a principle or schema of original submission or foundation, but the study of the law, which presumes no guilt and requires no self-slander or submission. To be able to study the law and to render it, thus, comparable to other laws means by definition that the Western claim to govern the world must be rendered ineffective. To render the fabrications of a sovereign law or polis (and of the superiority of its chameleon messengers) inoperative, that is, neutralized and ineffective, appears to be the only task, or way of being, available and necessary to an authentic thought and praxis. It is to this task, if it is one, that Agamben’s work in all its manifestations points and offers a glimpse of, as an e¯ thos, a way of being. If it appears to Agamben’s readers not to seem like a task, it is perhaps because it is not a task, that is, it contains no programmatic prescriptions since what is at stake is a different attitude towards how one lives and thinks, rather than offering abstract new commandments to replace the ones criticized. Agamben’s point as to bare life is not to attempt merely a philosophical archaeology of how such a historical form (or de-form) of life was made possible from antiquity to the contemporary. It is to confront, in particular, the way in which the original mythologeme of the distinction between bare life and qualified or political life has always-already been rendered as a zone of indistinction, performing a structural function signifying a supposed zero degree of life as much as of law. Through such a confrontation it is no longer even possible negatively (meaning a transition from a mere life to a qualified

37 See generally Agamben, 2008b.

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life) to distinguish two sides, a form and a life, and it is this very distinction that is guarded as the sacred and superior zero-degree of thought and praxis that is to be destroyed. In every form and every act of the institutions in question, as much as in the acts of the subjects-citizens of contemporary Western democracies, it has become unnecessary to maintain a strong distinction between bare life and qualified life, not because the presupposition of bare life is not still presupposed as having ‘always-already’ taken place, but because human life has entered its ultimate phase of spectacularization (ironically ‘we are all human now’). What the distinction of bare and qualified life (as enacted in the figure of the homo sacer) indicates is that, instead, ‘we have never been truly human’. Zoe¯ or bare life, for Agamben, is always-already politicized and juridified, that is, it is included via its exclusion. It remains counterfactual and ineffective to suggest for a life as zoe¯ that pre-exists politics as some natural state of peace (a beautiful day -eue¯ meria) as a counter to the inclusive-exclusion of bare life. Agamben is clear as to his aim in this sense: [until a completely new politics – that is, a politics no longer founded on the exceptio of bare life – is at hand, every theory and every praxis will remain imprisoned and immobile, and the ‘beautiful day’ of life will be given citizenship only either through blood and death or in the perfect senselessness to which the society of the spectacle condemns it.38 The insignificant object, which forms and deforms the subject of power (sovereign power, biopolitical power, democratic power and so forth) is life ‘as such’, that is, bare life, the so-called zero-degree of life. This is why for Agamben the decisive link that needs to be shown is that between (bare) life and violence: not only the historical acts of violence that continue to proliferate worldwide, but also the spectacular violence of the mythologemes of the tradition and discourse of foundations. From the start, as Agamben shows, bare life and qualified life formed on a threshold of indistinction, only in modernity has this threshold encompassed normality to such global extent that the inclusive-exclusion of bare life, as a formal presupposition and concealed empirical site, become the key principle of the contemporary zero-degree of law and government. The empirical function of such an inclusive-exclusion is for insignificant lives to ‘be around’, abandoned and deformed, albeit not to be recognizable forms of life that merit protection. Foucault writes that: ‘For millennia man remained what he was for Aristotle: a living animal with the additional capacity for political existence; modern man is an animal whose politics calls his existence as a

38 2000: 11.

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living being into question.’39 What Agamben reconstructs is not only the exact nature of what ‘man remained for millennia’ (by showing that bare life has been included via an exclusion from the inception of Western politics), but also that what characterizes the modern era is that this process has intensified, as well as has exposed, the secret capture of bare life by sovereignty and biopolitics as their very condition of possibility. When Walter Benjamin names the bearer of the link between violence and law he refers to the term bare or mere life (bloßes Leben).40 Agamben comments: The analysis of this figure – whose decisive function in the economy of the essay has until now remained unthought – establishes an essential link between bare life and juridical violence. Not only does the rule of law over the living exist and cease to exist alongside bare life, but even the dissolution of juridical violence, which is in a certain sense the object of the essay, stems . . . from the guilt of bare natural life, which consigns the living, innocent and unhappy, to the punishment that ‘expiates’ the guilt of bare life – and doubtless also purifies [entsühnt] the guilty, not of guilt, however, but of law.41 The original link between mere or bare life and violence is decisive in Benjamin’s and Agamben’s rethinking of law and politics. The fallen life of Benjamin’s formulation, and the insignificant life of Agamben’s, point to the vacuous origin of the law that lacks an ultimate justification or legitimation, other than its arrogant sustainability through a brutal force, a mythical violence, which forms also the site of a particular form of subjection to it. This is the site that forms like a zone of indistinction between law-making and law-preserving violence at the very place of our alleged very being or nature. It is indeed human life itself that is said to contain a biopolitical scission that forms on the vacuous zone of indistinction between bare life and qualified life. Human life bears the guilt of the law’s, or the origin’s, lack of a ground. When Agamben proposes, then, persistingly, and against the dominant current, that a theory of the state of exception (even if that means that one has to engage, thus, with Carl Schmitt) is the preliminary key to any understanding of the, now, permanent zone of indistinction between bare life and qualified life, it is the understanding of this relation or guilt that is at stake, a relation that binds and at the same time abandons the living being to a law without content. The exceptional, vacuous modality of the so-called original state of the law and the polis requires human beings to plead guilty to something, and 39 Foucault, 2006b: 188. 40 Benjamin, 1996a: 63. 41 Agamben, 1998b: 11.

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because of something in themselves, that is allegedly obscene and equally simple, beautiful and equally empty: their bare state of being, their mere life. If there is to be a place or a life where one always-already pleads guilty before one was acted, then this has to be a life where no act has yet taken place; it must be exceptional to human life, a bare life. To this chimera and to its pseudo-transcendence the law and the polis invest their illusionary source of self-sustainability. The presupposition of a tragic state of nature of/for humanity (the presupposed scission between a bare life and a qualified life) assigns always-already a guilt that is assumed ‘as-if ’, in a self-accusatory modality, within the very being of being human. To be always-already assigned and abandoned to a state of guilt (natural life or bare life), in the particular sense in which this is produced by law (as much as by politics and theology) as a presupposed foundational zero-degree, seeks the formation (which at the same time is a deformation) of a bearer ‘destined to guilt: bare life’.42 This is posed as necessary since otherwise the mythologeme of foundation (of law and of the polis) would not only lose its transcendental elevation and not evade the earthly gravitational pull back to contestation, but also its very presupposed object-subject (the bearer in his alleged original or bare state of being, who is included through an exclusion), so that law and the polis can appear as continuous saviours, as the incessant regulators of the passage from transcendence to existence. The guilt for something that has not been committed is the presupposition of the foundational judgment passed on every past, present and future action, and natural guilt becomes the being-in-potentiality of a transcendental Law of law that defines ‘innocence’, so that the legal principle of someone being ‘innocent until proven guilty’ points not just to a mere hypothesis of juridical rule, but to a zone of indistinction between innocence and guilt, a zone of bare life. As a result, today, such a presupposition of a guilt as a result of an act of self-slander (‘we are all humans now and we determine our destiny on the basis of our pure or mere humanity, rather than through reference to any other type of sovereignty’) means that the pseudocourt of the powerful can justify the erection of ever more invisible barriers and frontiers between ‘the high and the low, the castle and the village, the temple and the house, the divine and the human’.43 Through self-slander (where the accused is perfectly aware of being innocent and equally aware of being guilty of slander) humanity names its own self as the allegedly automatic ground of implication in the law (a law that cannot be understood, contrary to what the dominant tradition maintains, as other than the law of a primordial guilt and of an ever-destined tragic existence). But self-slander, as Agamben explains cunningly, entails also a subtle strategy of deactivation in

42 Ibid: 66. 43 Ibid: 26.

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the struggle against guilt: ‘For if the accusation is false, and if, on the other hand, accuser and accused coincide, then it is the fundamental implication of man in the law itself that is called into question.’44 Sovereign power’s absolute character receives its strength on the basis of the hidden tie to a life that can be killed, but not sacrificed. That next to a sovereign there lies a bare life does not mean that any attempt to think of politics and thought requires a notion of sovereignty. It means instead that the destruction of the mythologeme of bare life signifies also the destruction of the mythologeme of sovereignty as such. That even an exceptionally lucid thinker like Jacques Derrida considered the destruction of sovereignty unrealistic and possibly undesirable suggests only the difficulty of what remains necessary. Viewed through the generalized biopolitical optics of a long modernity, the answer to the question ‘is there a humanity distinct from biological humanity or mere life?’ follows through in the claim of equally biopolitical terms such as dignity, integrity, responsibility, decency, humanity, or whatever other alleged hyper-normativity is available to the canon of politics and judgment. This is not adequate and beyond a mere search for a better term it is also suspicious. It is suspicious to install a sphere of dignity, like an artificial halo, at the place and upon those who exist in this ‘place’ (the lasting nightmare of the realized ou-topos of modernity, the camp)45 and for whom these terms are useless. In the camp (the place where the taking – nemein – of nomos places its subjects) it is bare life that becomes itself the norm, and it cannot any longer be referred, without a severe lack of awareness, to another higher norm (like dignity or humanity.) (Bio)political or dignified life has alwaysalready a master and empty referent – dignity or integrity: the unsacrificiable, the untouchable – that lies ‘outside’ its formal actuality as an ‘eternal light’ and hence the normalized subject, the juridical person is always-already consigned to the scission between bare life and qualified life by its very supposed pseudo-nature. A foundational mythologeme that assigns the origin to some primordial or primary negativity of a zero-degree is assumed to transcend the posited and the present from ‘time immemorial’; but it is also assumed to be repressed in the present in order to form the condition of possibility of the present as such. Conceived in this circular (pseudo-self-founding) manner, law, politics and thought are displaced as far as possible from authentic thinking and praxis and instead become interpreted through the spectacular lenses of ‘present continuity’ and ‘progressive work’, which, whether critical or not, ultimately envelop thought and life in a banal cycle of mystification– demystification–remystification. In this manner foundational mythologemes

44 Ibid: 16. 45 See ibid: Part 3.

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safeguard or rather silence, the possibility of a direct turn towards an archaeological inquiry into the actual author or source of a tradition’s or a rule’s transmission. This is particularly so when at the place of the origin is located not in a human act but in the fiction of ‘a law’, ‘a nature’, ‘a social apparatus’ and so forth. This is a convenient fiction since on the basis of their ‘infinite and immemorial inevitability’ (where the turn towards the source or origin is said to be always-already confronted with a mystery, an ineffability, an immemorial tradition and hence an impossibility) institutions, as much as theorists, construct their own mythologemes (and counter-mythologemes) of legitimacy, value, reasoning and so forth that function, ultimately, as zerodegree safety nets within which everything can be accommodated, appeased and compromised. ‘Infinite inevitability’ portrays the reign of the echo of the origin or foundation as inevitable, while maintaining it as inaccessible, ineffable and immemorial. Such alleged infinite inevitability purports to pre-empt any ability to think and to act differently.

Rethinking the biopolitics of bare life The aim of the first volume of the Homo Sacer series is to show the concealed link between the inclusion of bare life and the sovereign exception. Agamben writes: As long as the form of the State constituted the fundamental horizon of all communal life and the political, religious, juridical and economic doctrines that sustained this form were still strong, this ‘most extreme sphere’ could not truly come to light. The problem of sovereignty was reduced to the question of who within the political order was invested with certain powers, and the very threshold of the political order itself was never called into question. Today, now that the great State structures have entered into a process of dissolution and the emergency has, as Walter Benjamin foresaw, become the rule, the time is ripe to place the problem of the originary structure and limits of the form of the State in a new perspective.46 The point is not to conceive of a new theory of the State, but to uncover its secret kernel and to leave such sovereign mythologemes and doctrines aside (to render them ineffective) as soon as possible: The Foucaultian thesis will then have to be corrected or, at least, completed, in the sense that what characterizes modern politics is not so much the inclusion of zoe¯ in the polis – which is, in itself, absolutely ancient – nor simply the fact that life as such becomes a principal object

46 Ibid: 11–12.

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of the projections and calculations of State power. Instead the decisive fact is that, together with the process by which the exception everywhere becomes the rule, the realm of bare life – which is originally situated at the margins of the political order – gradually begins to coincide with the political realm, and exclusion and inclusion, outside and inside, bios and zoe¯ , right and fact, enter into a zone of irreducible indistinction. At once excluding bare life from and capturing it within the political order, the state of exception actually constituted, in its very separateness, the hidden foundation on which the entire political system rested.47 Agamben then reconsiders Foucault’s analysis of biopolitics through The Kingdom and the Glory by suggesting that instead of first having an ‘era’ of supreme power and then a transformation to nation-State and geopolitical sovereignty or ‘post-sovereignty’, what there has always been since at least the second century is a bipolar system where substance and praxis, sovereignty and government have always worked in tandem. Schütz writes crucially that: [Giorgio Agamben does not subscribe to the confident gesture with which Michel Foucault assigned a date of emergence to Western modernity, a ‘birth’ of what he called ‘biopolitics’. A clean-slate type discontinuity, particularly the idea of modernity as innovation – whether the innovation is a point, or whether it extends over more than a century, makes no decisive difference here – leaves one with the possibility of a calendar, of a sequence of ages succeeding each other in one unique trajectory. [. . .] Foucault sees historico-political factuality as subject to watershed like historical discontinuities, and in consequence, before his turn towards antiquity around 1980, sticks to the idea that every configuration of Western culture as we know it can be fully traced back to its modern origins.48 What is shown in Agamben is that the term biopolitics is characterized by indeterminateness, which forms a peculiar problem with precise regard to the indeterminateness of the life that lies as its object (bare life). It could be said that biopolitics produces or presupposes a homo sacer or bare life, that is, ‘a remnant that happens, not to “be”, but to be “around”.’49 Such a remnant is paradoxically produced through the self-proclaimed state of exception or vantage point through which the law is said to capture human life entirely without remainder. In this sense, the integrity of law is predicated on the

47 Ibid: 9. 48 2008: 116. 49 Ibid: 124.

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exception, a form of devalued life as bare life; but such a totalitarian and tragic interpretation of the function of law presumes that if the law covers life absolutely then one is left without any other role but that of being simply a subject. What Agamben, therefore, realigns are the genealogical coordinates of Foucault’s work on power. For Foucault those investigating the question of power: must refrain from posing the labyrinthine and unanswerable question: ‘Who then has power and what has he in mind? What is the aim of someone who possesses power?’ Instead, it is a case of studying power at the point where its intention, if it has one, is completely invested in its real and effective practices. What is needed is a study of power in its external visage, at the point where it is in direct and immediate relationship with that which we can provisionally call its object, its target, its field of application . . . where it installs itself and produces real effects.50 When Agamben suggests in Homo Sacer that he is following Foucault’s insights and ‘correcting’ or ‘completing’ them, he is similarly not interested in the artificial imagery of power as such, but only to the extent that it acts to displace constantly the questioning of power from its proper field (not substance or sovereignty, but government and oikonomia; not rights and legitimation, but ways of being and thought’s practical calling). Agamben writes: One of the most persistent features of Foucault’s work is its decisive abandonment of the traditional approach to the problem of power, which is based on juridico-institutional models (the definition of sovereignty, the theory of the State), in favour of an unprejudiced analysis of the concrete ways in which power penetrates subjects’ very bodies and forms of life. As shown by a seminar held in 1982 at the University of Vermont, in his final years Foucault seemed to orient this analysis according to two distinct directives for research: on the one hand, the study of the political techniques (such as the science of the police) with which the State assumes and integrates the care of the natural life of individuals into its very centre; on the other hand, the examination of the technologies of the self by which processes of subjectivization bring the individual to bind himself to his own identity and consciousness and, at the same time, to an external power. Clearly these two lines (which carry on two tendencies present in Foucault’s work from the very beginning) intersect in many points and refer back to a common centre. In one of his

50 1980: 97.

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last writings, Foucault argues that the modern Western state has integrated techniques of subjective individualization with procedures of objective totalization to an unprecedented degree, and he speaks of a real political ‘double bind’, constituted by individualization and the simultaneous totalization of structures of modern power (Dits et Écrits, 4: 229–32).51 The fact that Agamben focuses primarily, in the first volume of the Homo Sacer work, on the juridical-political and biopolitical techniques of power does not limit the effects of his research on this notion of individualization or technologies of the self. Foucault calls ‘technologies of the self ’ or selfgovernment: techniques which permit individuals to perform, by their own means, a certain number of operations on their own bodies, on their own souls, on their own thoughts, on their own conduct, and this in such a way that they transform themselves, modify themselves, and reach a certain state of perfection, of happiness, of purity, of supernatural power, and so on.52 It is important to delineate that such technologies of self interact with the technologies of political power (domination) and, even more so they form a zone of indistinction or a field of practices that Foucault calls ‘government’, which is not a unitary centre of power but a zone or field of complementarity, conflict, reconstruction and modification, both as to the techniques (and representations of power as a spectacular force), but also as to technologies of subjectivization of individuation. When Foucault analyses biopower throughout the last three hundred years, he argues that while under absolutism power is a means of subtraction (in its representation as well as in its practices), where supreme power or sovereign power is characterized by its right of appropriation and murder, biopower is a management of life ‘as such’, an oikonomia or a form of government that aims to regulate life. This does not mean to suggest that techniques of power, biopower, disciplinary mechanisms and technologies of the self succeed one another, but rather that a complex representation of power and an equally complex exercise of power (oikonomia or government), with Agamben’s analysis in mind, combine and coordinate not only the totalizing tactics in question but also the individualizing entanglements of their object/subject. Foucault deploys the concept of governmentality as a cursory guideline for this combination and confusion of forms of power/knowledge and techniques of totalizing and individuating domination and violence. The

51 1998a: 5. 52 Foucault, 1997: 181.

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linking of government and mentality in the term ‘governmentality’ is not an accidental semantic coincidence. Government comes to be understood not only as a form of representation, a mythologeme (that for Foucault characterizes modernity, while for Agamben it extends back to at least the second century) where it forms a discursive field of rationalization and substantiation of power, but also as a process of subjectivization (which as praxis is both totalizing and individuating). Foucault is able to show how, while government in the contemporary situation is understood as a merely political concept, its history entails parallel theological, philosophical, moral, medical, managerial and domestic uses of the term.53 Foucault traces the notion of government, not only in relation to the management by the state and the control exercised by it, but also the administration of bodies, life, the pastoral guidance of the household, the family, the soul and so forth. Foucault emphasizes his focus in the following: ‘The relationship proper to power would not therefore be sought on the side of violence or of struggle, nor on that of voluntary linking (all of which can, at best, only be the instruments of power), but rather in the area of the singular mode of action, neither warlike nor juridical, which is government.’54 Foucault uses, in fact, the term of ‘conduct of conduct’55 to describe the aim of governmentality (which can be fruitfully linked to Agamben’s genealogy of biopolitical governance through the notion of oikonomia, which structured the administration of power in terms of ad hoc management in an immanent or autonomous sphere of an Earthly Kingdom). Government, in this sense, regulates the conduct of conduct implying its functional or vicarious relation to a transcendental source of power, which, however, does not act or govern. Government acts or conducts the conduct of autonomous and free subjects. In this sense Agamben’s redirection and supplementation of Foucault’s study of government can be appreciated even further when he traces ever earlier and more decisive uses of the term in the doctrine of the Trinitarian dogma in early and later Christianity, which forms the second pole (oikonomia or administration) of the machine of Western power and politics, aside from the mythologemes of substance, origin, foundation and sovereignty.56 It is the functional relation between a sovereign or spiritual power and a power of government that is each time at stake. Foucault in his lectures on the ‘genealogy of the state’ distinguishes between the Christian pastorate as a spiritual government of souls oriented to salvation in the divine kingdom and State reason as a political government of men securing the good life in

53 54 55 56

Foucault, 1997b. 1982a: 221. Foucault, 1994: 237. See Foucault, 2008.

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this world.57 In Foucault’s notion of government there is an indication that what is at stake is not the mere execution of the sovereign’s command or rule but the creation of an autonomous space (an economy) that both administers and executes ‘sovereign power’ but also, crucially for Foucault, that forms a space for the self-government of the polis and its subjects. To the question, ‘How is it possible that his headless body often behaves as if it indeed had a head?’,58 the answer has already been shown, by Agamben, to be through a conception of oikonomic government. In this sense governmentality is ‘at once internal and external to the state, since it is the tactics of government which make possible the continual definition and redefinition of what is within the competence of the state and what is not, the public versus the private, and so on; thus the state can only be understood in its survival and its limits on the basis of the general tactics of governmentality’.59 From the inception of neoliberalism to the current dissolution of the nation-state, what takes place is not a mere retreat of the State or of sovereignty but the assumption oikonomic practices and techniques of the whole of political life while maintaining a functional relation to a transcendental righteousness which, however, appears now as the very spectacular reality that the oikonomia of capitalist-produced and mediaproduced power manages. Disciplinary mechanisms do not disappear or merely get displaced by biopower (as in the liberal dictum that the aim is not to kill life any longer but to protect it), but rather continue to operate as one among many apparatuses operating across various institutions and techniques of capture and regulation that presuppose and produce the notion of bare life so to place your bare dignity as separate from yourself (as perfectable, confessable, able to be disciplined, abandoned and so forth). In the current use of the apparatus of security, for instance, disciplinary mechanisms work in tandem with general biopolitical regulation in functional relation to spectacular representations of power in the names of ‘the new world order’, ‘a globalized humanity’, ‘the axes of good and evil’, ‘enemy combatants’, ‘terrorists’, ‘the free world’ and so forth. The fact that the older geopolitics of security, for instance, focused on territory and sovereign power, while now the biopolitics of security have received new and more complex formations and practices neither means that territorial conflicts have entirely eclipsed (though no longer fought necessarily in the name of the State) and that the ‘new’ space of ‘one species’ or ‘global population’ or ‘humanity’ are unrelated to disciplinary technologies of domination, nor that there has been progress from the old to the new.

57 Foucault 1991a: 92. 58 Dean, 1994: 156. 59 1991a: 103.

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Instead, with Agamben, it is shown that the so-called older geopolitics over territorial sovereignty and the so-called newer form of biopolitics find their common point of origin in the inclusive-exclusion of bare life that takes place through sovereign (as much as democratic and global) exceptionalism. For when, for instance, as explored in Society Must Be Defended (a cynical title), the species life is taken as the referent object/subject of governmentality (in other words, a form of biopower/biopolitics), biopolitics recuperates the death function of old-sovereign power and massacres become once again vital but this time appear as ‘naturally’ collateral to an economic government of the world (economic deregulation becomes the key apparatus of management in conjunction with expanded strategies of policing and regulation).60 Equally, the rise of a particular form of democratic government in nineteenth-century Europe does not eliminate policing, disciplinary apparatuses of security but, rather, despite aiming to ‘keep the citizens happy’ and to ‘foster life’, it simultaneously acts to continue and increase the strength of the governmental machine (through reason of state, public policy, exceptionalism, emergency powers and so forth) to cover for every contingency.

The conditio post-politica of survival Towards the end of Homo Sacer Agamben elucidates the problem of the politicization of life further by looking at the extreme case of the extermination camp as a philosophical-archaeological example of a wider problem that extends to modernity’s democratic politics (which does not suggest that the struggle against totalitarianism is to be discounted in any way). Agamben refers to the totalitarian submission of life to an incessant political movement through an intertwinement of medicine and sovereignty as a biopolitical problem that is yet to be understood: The paradox of Nazi biopolitics and the necessity by which it was bound to submit life itself to an incessant political mobilization could not be expressed better than by this transformation of natural heredity into a political task. The totalitarianism of our century has it ground in this dynamic identity of life and politics, without which it remains incomprehensible. If Nazism still appears to us as an enigma, and if its affinity with Stalinism (on which Hannah Arendt so much insisted) is still unexplained, this is because we have failed to situate the totalitarian phenomenon in its entirety in the horizon of biopolitics. When life and politics – originally divided, and linked together by means of the no-man’s-land of the state of exception that is inhabited by bare life –

60 Foucault, 2005; see Dillon, 2007: 43.

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begin to become one, all life becomes sacred and all politics becomes the exception.61 It is this link and inhabitation in a zone of indistinction that shows the proximity between democracy and totalitarianism which leads to considerable unease towards both political paradigms if the theses of Homo Sacer are understood. Agamben’s approach is defined by the following question: ‘Instead of deducing the definition of the camp from the events that took place there we ask: “what is a camp, what is its juridico-political structure, that such events could take place there?” ’62 If the camp, thus, is to be approached as neither a mere anomaly nor a mere historical fact among others (both of which would refer the example of the extermination camp, for instance, back to the past) how is the camp to be understood philosophically and politically, today? For Agamben what remains common among the institution of camps throughout modern history is the fact that they are not born out of ordinary law but out of various kinds of state of exception declarations and martial laws.63 When the Nazis proclaimed the ‘decree for the protection of the people and the State’ (Verordnung zum Schutz von Volk und Staat) on 28 February 1933, indefinitely suspending the articles of the Constitution concerning personal liberty, the freedom of expression and of assembly, and the inviolability of the home and of postal and telephone privacy, they not only followed a practice that was common to previous governments but also introduced the novel character of the state of exception (as a ‘willed’ state of exception) as suspending indefinitely the law in question irrespective of a particular factual danger. Agamben writes: The state of exception thus ceases to be referred to as an external and provisional state of factual danger and comes to be confused with juridical rule itself. [. . .] The novelty is that Schutzhaft [protective custody] is now separated from the state of exception on which it had been based and is left in force in the normal situation. The camp is the space that is opened when the state of exception begins to become the rule. In the camp, the state of exception, which was essentially a temporary suspension of the rule of law on the basis of a factual state of danger, is now given a permanent spatial arrangement, which as such nevertheless remains outside the normal order.64

61 62 63 64

Agamben, 1998a: 148. Ibid. Ibid: 1667. Ibid: 168.

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The first thing that is taken (nehmen) within the juridical order is the state of exception as such, as ‘willed’ and, in this manner, rule and exception become indistinguishable. Agamben writes: The sovereign no longer limits himself, as he did in the spirit of the Weimar constitution, to deciding on the exception on the basis of recognizing a given factual situation (danger to public safety): laying bare the inner structure of the ban that characterizes his power, he now de facto produces the situation as a consequence of his decision on the exception. This is why in the camp the quaestio iuris is, if we look carefully, no longer strictly distinguishable from the quaestio facti, and in this sense every question concerning the legality or illegality of what happened there simply makes no sense. The camp is a hybrid of law and fact in which the two terms have become indistinguishable.65 The indistinction of fact and law is what makes ‘everything possible’ in the space of the camp that constitutes the new juridico-political paradigm of a stable, that is, continuous, exception. A Jew, for example, who enters the camp, having been first denationalized and hence stripped of every juridical and political status, is reduced to bare life and experiences effectively the most absolute biopolitical space in modernity: ‘in which power confronts nothing but pure life, without any mediation’.66 This lack of mediation is the secret kernel of the presupposition of the mythologeme of bare life. The precision of the problem then needs to be made clear: Just as the Führer is not a factual situation that is then transformed into a rule, but is rather itself rule insofar as it is living voice, so the biopolitical body (in its twofold appearance as Jewish body and German body, as life unworthy of being lived and as full life) is not an inert biological presupposition to which the rule refers, but at once rule and criterion of its own application, a juridical rule that decides the fact that decides on its application.67 It is in this sense, too, that what is shown with regard to the sovereign decision is ultimately that it is instead based on a fundamental mythologeme of indecision: a threshold between fact and law that it institutes and renders effective. The ‘biological’, ‘mere’, ‘bare’, ‘apolitical’ are, thus, specifically political indecisions (that form the condition of possibility of any decision). The impossibility of decision does not, paradoxically, mean in this manner

65 Ibid: 170. 66 Ibid: 171. 67 Ibid: 172–3.

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that decisions between fact and law, exception and rule do not take place incessantly. Wherever this paramorphosis (transformation) of fact-law, exception-rule takes place, in differing ways, what is materialized is the presence of a camp as a structure (the topography, crimes involved, legal detail, denomination and so forth can differ from case to case).68 The wider implications of this structure are well pointed out by Agamben in what follows: In this light, the birth of the camp in our time appears as an event that decisively signals the political space of modernity itself. It is produced at the point at which the political system of the modern nation-state, which was founded on the functional nexus between a determinate localization (land) and a determinate order (the State) and mediated by automatic rules for the inscription of life (birth or the nation), enters into a lasting crisis, and the State decides to assume directly the case of the nation’s biological life as one of its proper tasks. [. . .] The growing dissociation of birth (bare life) and the nation-state is the new fact of politics in our day, and what we call camp is this disjunction. To an order without localization (the state of exception, in which law is suspended) there now corresponds a localization without order (the camp as a permanent state of exception.)69 In this sense, for Agamben, the camp can be seen as the new biopolitical nomos of the planet.70 Further, secular sovereign law ceases to be recognized

68 Agamben mentions a number of such cases: detention centres for immigrants, refugee camps, the zones d’attentes at international airports, ethnic cleansing camps, hospital wards, the space as a whole of the so-called ‘third world’ and so forth. 69 Agamben, 1998a: 174–5. 70 The Greek word nomos from the verb nemein (apportionment), base *nem (to share, bend, divide, distribute, allot) signified in Homeric times an apportionment without a division of shares, a distribution. In Democritus and Plato, among others, it signified convention, custom or rule as opposed to physis (nature). Convention as nomos signified something akin to the apportionment or sharing, yet it can be suggested that the earlier use of the word nomos pointed to the nomos of the moment and in this sense nomos is not to be perceived as a synonym for law or lex as it originally followed no pre-existing rules other than the occasion before it. In Chapter 6 of this work a different understanding of nomos is proposed following its earlier etymology to suggest its meaning as in the nomos of the now, linked to kairos and coining the term kaironomia to suggest the nomos of the now not by reference to pre-existing valid norms, but by reference to the actual ways of being of human beings, their actual experience. Deleuze and Guattari offer a similar understanding of the term as in ‘arraying oneself in an open space’, an apportionment without shares or borders; see Deleuze and Guattari, 1987: 472. It is of interest that when Schmitt uses the term to write of The Nomos of the Earth (Nomos der Erde) he refers to the sea as a res communis omnium which was out of the jurisdiction of the dominus mundi and therefore legally immeasurable, foreign to any legal title. Thus the first nomos, for Schmitt, of the earth was not a global conception, but rather what the Greeks called oekumene. Schmitt brings the word nomos closer to the German

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according to a physical and a political body (as analysed by Kantorowicz) and instead the two bodies are drastically contracted into one: one body that is held as supremely political (and legal). The body of bare life, in turn, can no longer be seen as two bodies (mere life), separated from a qualified life (political life), but instead as a contraction into one body, a body of bare life or pure life, that is presupposed as supremely non-political and yet which is held as innate to political subjectivity. To the extent that the sovereign body through its constitutive presupposition of bare life cannot be separated from the body of bare life, the distinction of the political and the non-political contracts into a single post-political (biopolitical) field of a sovereign who reigns but does not govern and a subjectivity without subject. In the third volume of the Homo Sacer work entitled The Remnants of Auschwitz: the Witness and the Archive, Agamben extends his analysis further. The contraction of the political and the non-political into the biopolitical field in the camp attempts to isolate survival from life. If the aim of modern biopower, in Foucault’s terms, is a ‘to make live and to let die’ (which repositions, rather than replaces, the sovereign power of the old territorial state that was focused on ‘to make die and to let live’), Agamben proposes in this volume a third formula that no longer aims either ‘to make die’ or ‘to make live’, but ‘to make survive’: ‘The decisive activity of biopower in our time consists in the production not of life or death, but rather a mutable and virtually infinite survival.’71 In the extermination camps the attempt to separate life from survival produces the ‘untestifiable’, that to which no-one has borne witness, which, in the jargon of the camp, had the name of der Muselmann (the Muslim).72 The figure of the Muselmann is not considered by Agamben at the expense of those murdered ‘in the same or other concentration camps’: Nonetheless, Agamben rejects the idea that the division between death and life is a sufficient, rather than only a necessary, condition of an appropriate ethical take on the question of Auschwitz. The praxis of the reference to death and destruction in the advanced society of the

nehmen to signify apportionment, a taking, and he bases his thesis in The Nomos of the Earth around the notion of apportionment and appropriation. See generally Schmitt, 1974. Here Agamben refers to the biopolitical nomos of the earth as a taking, a taking-out, abandonment to a sphere of lawlessness, an anomia to expose once more the pseudo-bipolarity between a particular understanding of nomos that relates functionally to an anomia, a space of lawlessness. In this space and through this taking-out the camp appears as the very topos of this nomos, the topos of the most extreme form of inclusive-exclusion, of bare life, of a life reduced to insignificance through a state of exception wherein the topos of the law is functionally related to the outopos (non-topos) of the exception. 71 1999a: 155. 72 For a critique of Agamben’s Remnants of Auschwitz: The Witness and the Archive see Mesnard and Cahan, 2001.

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spectacle is patently characterized by the fact that destruction and death, or specific instances thereof, have been instrumentalized to render plausible actions and agendas that would otherwise not resist an examination of their ethical or legal acceptability.73 A life reduced to survival is the point where the power (its efficacy) of the atrocity of the camp and its secret coincide. Agamben writes, ‘in the Muselmann, biopower sought to produce its final secret: a survival separated from every possibility of testimony, a kind of absolute biopolitical substance, that in its isolation, allows for the attribution of demographic, ethnic, national, and political identity’.74 In the camp the Muselmann is the figure located at the zone of indistinction between not so much life and death but rather between the human and inhuman. The ethics that the Muselmann then provokes is an ethics of witnessing the post-political biopolitical collapse of the human and the inhuman into a zone of indistinction. If what takes place in the camp is the institution, the prime matter of all institutions, of a limit not so much between life and death but between the human and the inhuman, then such political, neo-sacral or biological ‘ultimate’ senses of ‘humanity’ become empty of meaning and useless. Survival is a zone of the human where dignity and responsibility become useless. In this sense, it becomes less significant to continue to speak of the self and of the other or of the friend and of the enemy and so forth since: The entire population of the camp is, indeed, nothing other than an immense whirlpool obsessively turning around a faceless centre. But like the mystical rose of Dante’s Paradiso, this anonymous ‘vortex is painted in our image’ (pinta della nostra effige); it bears the true likeness of man. According to the law that what man despises is also what he fears resembles him, the Muselmann is universally avoided because everyone in the camp recognizes himself in his disfigured face.75 The Muselmann as such becomes something like the gorgon, the ‘horrid female head covered with serpents whose gaze produced death’, and which one must cut off without seeing (like Perseus did with Athena’s help.) The gorgon is not a face, but an anti-face (anti-prosopon) and, as Frontisi-Ducroux notes, an anti-face that does not as a result have a profile: ‘it is always presented as a flat plate, without a third dimension – that is not as a real face, but as an absolute image, as something that can only be seen and presented as not. The gorgoneion, which represents the impossibility of vision, is what cannot not be seen.’76 73 74 75 76

Schütz, 2008: 128. 1999a: 156. Ibid: 52. Ibid: 53.

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The Muselmann, neither a merely muted subject (who would still be a speaker) nor a muted living being (a vegetative machine, that is still an animal), is rather the name for the existence of human beings in the threshold of in/decision between the human and the inhuman. In the figure of the Muselmann biopower sought to produce its final secret: a survival separated from every possibility of testimony, a kind of absolute biopolitical substance that, in its isolation, allows for the attribution of demographic, ethnic, national and political identity. [. . .] [T]he space empty of people at the centre of the camp that, in separating all life from itself, marks the point in which the citizen passes into the Staatsangehörige of non-Aryan descent, the non-Aryan into the Jew, the Jew into the deportee and, finally, the deported Jew beyond himself into the Muselmann, that is, into a bare, unassignable and unwitnessable life.77 Today, worldwide survival can no longer be philosophically and politically distinguished from the extreme situation experienced in the camps (different spaces of abandonment proliferate around the globe) since the biopolitical field coincides perfectly with the normal situation.

Philosophical archaeology, historiography and criticism Agamben’s approach, which is that of a philosophical archaeology, in this instance of bare life, finds its Copernican force only if the specific manner of this philosophical approach is understood. Agamben notes that the notion of a ‘philosophical archaeology’, as used by Immanuel Kant to refer to his science, is a paradoxical experience since while posing itself as historical, it cannot but interrogate its own origin. Yet since for Kant philosophy is the gradual unfolding of human reason, which is not simply empirical or equally a matter of mere concepts, philosophizing as an act takes place in a paradoxical time that can never be identified with a chronological date. Since philosophizing entails thinking of what has been, but more so with what could or should have been, it cannot claim to locate its objects in an empirically given totality. This is not to posit itself as opposite to empirical reality, but to explain its peculiar and paradoxical empiricism as such. Kant in this sense is far closer to Nietzsche and Foucault than it is commonly presumed. Agamben writes: We could provisionally call ‘archaeology’ the practice which, within any historical investigation, has to do, not with the origin, but with the

77 Ibid: 156–7.

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question of the point from which the phenomenon takes its source, and must therefore confront itself anew with the sources and with the tradition. Also the archaeology cannot take up the challenge of the tradition without deconstructing the paradigms, techniques and practices by means of which it regulates the forms of transmission, conditions the access to the sources, and determines, in ultimate analysis, the status of the knowing subject.78 One issue that has given rise to confused interpretations of Homo Sacer, by both critics and sympathizers, is the particular distantiation of the work’s approach from attempts to reconfigure a proto-legal, natural or pre-religious state of things. Instead, one must include the composition of the subject within one’s ‘plot of history, precisely in order to be able to dispense with it once and for all’.79 Schütz writes with regard to the understanding of the figure of homo sacer: The expression homo sacer is not religious and fails to correspond to religious sacrifice or any other notion of religious terminology. It should be understood as equidistant from or indifferent to realities both religious and secular. As Agamben explains in Profanations, the homo sacer corresponds to a different divide, the divide between the sacred as opposed to the profane. Whereas the first division [between religion and secularism or religion and law] refers to a certain phenomenology of social history, which here takes the aspect of an impoverished version of the Enlightenment mapping where the secular stands for the movement forward and the religious for the legacy of the past, the second division, between sacred and profane, is consistent with strict legal terminology, with the change of status before/without devotion as opposed to after/ under the impact of devotion.80 To the twin endowment of sovereign law with regard to both the before and after of subjection or devotion, is counterposed, here, an uncoupling of law and the before the law, where before the law there is only the indication of the before as such (which cannot refer any longer to an origin that at some point has split itself into a before/after dyad). It is in this sense that a foundational state of exception can be observed, in a wider sense, every time the law or religion for that matter, claims to be of this or that origin or foundational mythologeme, which is included, each time,

78 Agamben, 2008a: at para.4. I follow here Giulia Bryson’s translation of the Italian (forthcoming, Zartaloudis & Murray, 2009); original available from the author. 79 Ibid: para.2. 80 Schütz, 2008: 125.

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within the field, at the same time that it is excluded and posed ‘as’ outside, as transcendent or as merely primary. This is also the reason why it is suggested here that what lies before law (and religion) can only be posed as the before as such. To read the ‘before as such’ or ‘what has never been written’ becomes the central task for thought. This is not a task that can be undertaken lightly. The institutional-faithful will often pose the presupposed origin as crucial to the doctrine espoused as its condition of possibility, its justification and its semblance of para-historical substantiation. The institutional critic-faithful will often counterpose another origin (more primary, more original, ‘radical’ or at least reinterpreted so as to become more inclusive and perfectable in the time to come). Any historical inquiry, and in the sense explored here any philosophical inquiry, must confront this constitutive heterogeneity and the way in which it has been constructed as a particular type of pseudo-tradition. Division, in Agamben’s manner of understanding, is as problematic as the presumption of some proto-unity between later differentiated spheres. Agamben writes: There is an important precaution that should be observed every time one accepts to presuppose that a pre-historic (or in any case more primary) unitary stage has prevailed in the times preceding the moment of a historical split – one of those splits which are familiar to us. Consider for instance the division between the religious sphere and the profane juridical sphere. These distinctive characters appear to us – at least to some extent – as well defined. Yet, in entering an archaic stage, one is often tempted to surmise a precedent stage beyond it, in which the sacred and profane spheres are not yet distinct. In this sense, Gernet, who was working on the most ancient Greek law, has given the name ‘pre-law’ (pré-droit) to an original stage in which law and religion were undistinguishable.81 Agamben summarizes, here, a problem as to the manner of historical inquiry that has been evident, but infrequently explored, in legal history as well as in the anthropology of legal systems, and it is a problem not with history or anthropology, but rather with research as such. To suggest that what precedes a historical division of a before and an after is the sum of the elements that define its fragments is, thus, totally misleading. Agamben continues: It is essential, in situations of the sort, to have the shrewdness not to simply project onto the presupposed ‘primordial indistinction’ the characters, which, later on, are going to define the religious and profane spheres. [. . .] The pre-law (if one were to admit that a hypothesis of the sort makes sense) cannot be only a more archaic law; in the same way,

81 2008a: para.5.

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that which lies before religion as we know it historically is not only a more primitive religion; it would be a good idea here to avoid the terms ‘religion’ and ‘law’, trying instead to imagine an x, for the definition of which we need to take all possible precautions, indeed practicing some sort of archaeological epoché which suspends – at least provisionally – the attribution to it of the predicates which we use habitually whenever we refer to religion and to law. In this sense, as well, prehistory is not homogeneous with history, and the point at which it emerges is not identical to what comes into being through it.82 Such notions as the ‘fringe of ultra-history’, which archaeology tries to grasp are not chronological sites or meta-historical structures. What is at stake Agamben writes is ‘[. . .] an arche¯ : but it is an arche¯ which, as with Nietzsche and Foucault, is not diachronically displaced into the past, but rather ensures the coherence and the synchronic comprehensibility of the system’.83 The key example of this and, for Agamben, perhaps the original derivation of the idea of a historical a priori, is not found in Kant but in Marcel Mauss’s notion of mana, which is not ‘a matter of representing magic in the literal sense’, but of governing magical representations as their ‘condition’ and ‘necessary form’.84 Yet even such claim to a transcendental or unconscious category inscribes itself in ‘a determined historical constellation’ and the paradox forms as of ‘an a priori condition inscribed in history which cannot be constituted other than a posteriori in respect to itself ’85; and this paradoxical condition means that inquiry or archaeology must ‘discover its object’. In this sense one can speak of discovering the paradoxical memory of the present, which is a paradoxical past, neither ‘preceding chronologically the present’ nor ‘simply exterior to it’.86 Agamben continues his crucial argument through making a reference to Benjamin and to the outstanding nineteenth-century German (with British and French roots) protestant theologian and historian Franz Overbeck (famous, inter alia, for his close relationship to Nietzsche): In the same sense, the condition of possibility at stake in the historical a priori that the archaeology tries to reach, is not only contemporaneous to the real and to the present, but is and remains immanent to it. With a singular gesture, the archaeologist, who chases such an a priori, retreats back, so to speak, towards the present. It is, as if, considered from the point of view of archaeology or from the point of view of its emergence, 82 83 84 85 86

Supra n.78; para.5. Ibid: para.6. Ibid: para.7. Ibid. Ibid: para.8.

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each historical phenomenon were split along the division which separates within it a ‘before’ and an ‘after’, a prehistory and a history, a history of sources and a historical tradition – which, as they coincide for an instant in the point of emergence, are contemporaneous indeed. And it is something similar that Benjamin might have had in mind, when in Overbeck’s footsteps, he wrote that in the monadological structure of the historical object are contained both in ‘prehistory’ and ‘post-history’ (Vor- und Nachgeschichte), or when he suggested that the entire past must be immersed into the present in a ‘historical apokatastasis’ (Benjamin, 1982, 573).87 When Benjamin writes of an apokatastasis as the restitution of an origin, he qualifies an eschatological reality as ‘historical’. A similar paradox arises when justice is conceived in terms of an apokatastasis whose relevance for jurisprudential and philosophical enquiry of law remains to be specified. Justice as apokatastasis is neither the justice that ‘gives a reward’ to those that may will it or deserve it nor a ‘perpetual punishment of what is (and could not be otherwise)’, but is instead a turn to potentiality, pure existence (which is not, after all, a right, a property, a quality or a predicate of human beings that can be demanded or possessed, but their being-without-predicates, what Agamben calls their quodlibet, their whatever being).88 Justice, our most ancient inheritance (dike),89 is palingenesis, apokatastasis panto¯ n, wherein a new life (what Agamben calls a form-of-life: a life whose form cannot be separated from life) is finally at home (at the most bitter-sweet and profane home – oikos – not of a theodicy or an oikonomia, but of a cosmodicy and of potential uses, of things just as they are cotemporary to their banality or injustice). What is proposed, assumed or practised at most times in the fields of theory is a vision of repression or equally of progress. Either the infantile original scene, in its tragic definition, cannot be overcome, or a lesser version of attachment and capture by/for the origin is propagated in the spirit of progress or lesser violence. Agamben argues: What we are dealing with is not simply a matter of bringing to consciousness what had been repressed and keeps re-surfacing as a symptom, as a certain vulgate of the analytical model would have it. Neither is it a matter of writing a history of the excluded and the defeated, as the mawkish paradigm of history of the subaltern classes would have it –

87 Ibid. 88 See Agamben, 1991a. 89 See Agamben, 1995: 79–80.

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and which in fact is bound to turn out as perfectly homogeneous to the history of the victorious.90 It is Enzo Melandri who with great precision has instead proposed an alternative and to whom Agamben turns to explain his approach.91 This is how Melandri expresses the purpose of archaeology, not as a progression or repression, but as a regression: For archaeology, what is essential is the concept of regression; in addition, the regressive operation must be the exact reciprocal of a rationalisation. Rationalisation and regression are inverse operations, as well as integral and differential . . . To draw an expression from Nietzsche – one that is extremely famous, yet largely misunderstood (if it is true what we are saying here, it is also true that, unfortunately, it will never be understood entirely) – we can say that archaeology supposes a ‘dionysiac’ regression. As Valéry had noted, nous entrons dans l’avenir à reculons . . . equally, in order to understand the past we have to move backwards into it, à reculons as well.92 Archaeology in this manner criticizes and destroys the past in order to make life possible. The aim of such a dionysiac regression is to understand life in its possibilities, that is, to live human life within the open of the possible (not ‘once again’ by returning to some nostalgic beautiful past state, but for the first time – which in itself can be misunderstood as utopian or apolitical, though it points to anything but those equally reactive stances). The transcendent character of the distinction between pre-history and history, historiography and res gestae, origin and institution or tradition posits the necessity of the tragic and infinite repetition of an infantile or foundational scene. The transcendence of such a distinction dictates the way of representing the time ‘before’ the distinction itself was made, or rather, silencing it. To attempt to reconstruct a ‘more’ original or ‘more’ real ‘before’ would remain within the very logic of this machine of foundational representation, embedded in the ever-renewable parameters of the distinction in question. When Agamben turns, in Homo Sacer, to analyse the mythologeme of bare life, his aim, in my reading, is not to unearth some more original pre-life, a more beautiful and peaceful life that would redeem the anthropological machine that produces the distinction between bare life and qualified or politico-juridical life. Instead, it is with the non-lived, the infancy that is contained in every life, that Agamben is concerned.93 It is towards the inven90 91 92 93

Supra n.78: para.9. See Melandri, 2004/1968. Ibid: 2004 at 67. On infancy see Agamben, 1993: 1–63.

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tion of means through which human life, for the first time, can be assumed and lived (as opposed to a life suspended the torment of the degree zero of bare life). Regression is not to prehistory or the unconscious as such, but to that which has made it unconscious or prehistorical. At that point what opens up is the point of emergence, the self-revelation of the present as that which ‘we had neither been able to live nor think’.94 This is how Agamben expresses the notion of the non-lived or unlived: Every present contains, in this sense, an aspect of the non-lived; it is thus at the limit, that which is not lived in every life (that which, for its traumatic character or for its excessive proximity, remains inexperienced in each experience, or perhaps, in terms of the Heideggerian history of being, that which, in the form of oblivion, is destined to tradition and a history). This means that what gives shape and consistency to the scheme of the psychic personality and of the historical tradition, to guarantee their continuity and consistency, is not only the lived, but also, and most of all, the non-lived.95 The non-lived is not a bare life, but a co-temporary and co-present plane of a form-of-life, wherein the lived and the non-lived cannot be separated. To risk one’s self in the non-lived is to assume life in its possibilities (in its power) without separating human being from what it can do. The mythologeme or the foundational imagery that occupies the supreme place of the understanding of law, religion and politics is not to be perfected or countercriticized or to be seen as an indestructible weight on the shoulders of a transcendent angel of history or destiny and on our lives, but instead the aim is to revoke each mythological crystallization or spectacularization of power (its very hyperbole) and to destroy the imagined absolving of its represented, though repressed, totality. Yet to think of life as in a form-of-life or in its cotemporary presence with the non-lived does not make for an all-powerful life (some new notion of sovereignty). Remembering something entails also its forgetting, to speak of the true paradox of human memory, and life more generally. There are no guarantees. What gives shape and consistency to our lives is not an a priori determined or repressed totality, but the non-lived which by definition is not an essential or natural determination, but is intimately linked to our imagination and desire. Agamben writes: It is not properly a past that is in question in it, but a point of emergence; on the other hand, it can open an access to this only by going back to

94 Supra n.78: para.10. 95 Ibid: para.11.

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the point in which it has been covered and neutralised by tradition [. . .]. The point of emergence, the arche¯ of archaeology, is that which will happen, that which will become accessible and present only when the archaeological inquest will have fulfilled its operation. It has therefore the form of a futural past, that is, of a future perfect.96 This is not in order to encourage the realization of our hopes, or to point to the ‘ “indestructible desire” of a scene from childhood’ or indeed to bring to consciousness ‘contents that previously had been removed into the unconscious’.97 Agamben writes, crucially: ‘It is rather a matter of evoking the phantasy through the meticulous attentions of the genealogical inquiry, a matter of reworking it, of deconstructing it, of detailing it to the point of progressively eroding it and making it lose its original rank.’ And Agamben continues: The archaeological regression is thus elusive: rather than restoring a precedent state, as in Freud, it tends to decompose, move, and finally bypass it in order to revert not to its content, but to the split – to the split, which, while taking its place, is constituted as its origin – and to the moments, modalities, and circumstances of its taking place. [. . .] It wants, [. . .] to let it go, to rid itself of it, in order to gain access, whether before or after it, to that which has never been, to that which never has been willed.98 At this point, however, the non-lived reveals itself as what it really has always been, that is, contemporaneous to the present. In this sense, to examine the point of emergence of homo sacer (the subject of bare life) means to destroy the image of the paradoxical pseudo-phantasy of ‘bare life’ (as much as of the institutionalized forms of political and juridical subjectivity that rely upon its presupposition) and more so to turn towards the study of what Agamben has called a form-of-life (where no such thing as bare life can be separated from a political or juridical subjectivity) that does not belong to the past (as if to discover some less violent or more beautiful day in the life or past-future history of humanity), but to a futural-past, a future perfect. Agamben writes: ‘In archaeology, instead, what we are dealing with – beyond recollection and oblivion or, rather, in their threshold of indifference – is to access the present for the first time.’99 This archaeological gesture can be seen as the paradigm of each authentic human action. Archaeology is philosophically understood in this sense as meaning that the arche¯ towards which archaeology regresses is

96 97 98 99

Ibid: para.14. Ibid: para.12. Ibid. Ibid.

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not a chronological topos, but a force that immanently operates in history and that continuously pulls us towards its explosive radiation. The arche¯ in question remains always a field of bipolar tension ‘between point of emergence and becoming, between arch-past and present’: And as such – that is to say, to the extent to which it is, as anthropogenesis itself, something of which it is necessarily supposed that it has factually happened, and which yet cannot be hypostatised in any chronologically identifiable event – it is solely capable of guaranteeing the intelligibility of historical phenomena, of ‘saving’ them archaeologically within a future perfect, yet grasping not its (in any case unverifiable) origin, but rather its history, at once finite and untotalizable.100 A pseudo-phantasy is produced in the image of a bare life, where a subject finds the free movement of his existence annulled by the quasi-presence of a pseudo-transcendental source of power. This image, through such an archaeology, is, however, rendered ineffective, and for the first time the prime moment of existence, of freedom from such particular pseudo-phantasies, restores the imagination to light, beyond recollection and oblivion, at the point of indifference wherein the present can be accessed for the first time as a future (what will have been) with a past (what has never been) added to it, that is a present grasping properly, for once, not an allegedly ineffable origin, but its history (‘at once finite and untotalizable’).101

100 Ibid: para.16. 101 Ibid.

Chapter 5

The sacrament of power and the sacrament of language

Introductory note It is essential to extend the analysis of the previous chapters, which focused on the Homo Sacer series, with regard to Agamben’s thought in its proper philosophical plane. This is not just so that Agamben’s motive of thought can be appreciated better, but also due to the fact that mythologemes of power, which the previous chapters have discoursed on, are grounded in a particular problematic metaphysical and linguistic structure that would otherwise remain inexplicit. Foundational mythologemes are structured through a series of comparable forms as in the syntagma ‘Power of power’ (or the ‘Law of law’), whose self-referential character reveals such structures to be pseudo-bipolarities (or virtual bipolarities). It was argued, in the first chapter of this book that the historical, political and theoretical celebration of such mythologemes and their continued transmission is highly problematic since it misleads thought from considering the fact that it is the founded power or concepts that project their so-called founding referent (as their metaphysical – transcendental – principle). In other words, it is the act of founding (the search for the origin or essence of authority and power, and the need to render them stable, infallible and ordered), which presupposes not only the particular form of founded power, but also the source of its justification as if from an outside, higher realm that is to be rendered sacred, concealed, absolute and allegedly just and most powerful. Whether it is sovereignty (in despotic understandings of power) or the People (for instance, in democratic understandings of power) that are claimed as the originary foundation of power, it is instead the act of their specific manner of presupposition by what they allegedly found and justify (government-administration-police) that projects their imaginary transcendence, absolution and perfection. When considered more genuinely, what is shown is that such founding acts of presupposition relate negatively to a void (an empty throne, a do-nothing King or an exhausted constituent power), a ground(lessness) that can only produce pseudoparadoxes.

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What is concealed, each time, is the artificial (human) nature of such presuppositions as acts, as made. This problem was evidenced earlier in relation to Western Christian theology and it was argued that theological concepts with regard to the foundation of divine power were always-already oikonomic concepts. It was also shown how, in relation to law through the extreme example, for instance, of Schmitt’s construction of the sovereign decision on the exception, law is placed, always-already, in relation to a state of anomy, that yet must remain internal to the law. In analysing this understanding of law it was suggested that in fact it is not law, but the police (conceived generally) or administration that founds the law and that requires the mythological presupposition of exceptionality for its exercise of power. For this work the assignment of a foundational transcendental power to this void is misplaced since it only serves to show, instead, the inessential kernel of human action and power. Human action has no other foundation than in its own action. The positive ontological question then becomes: what other possibilities for thought can arise in thinking law, power and human subjectivity, when such negativity is no longer presupposed as a lack or a nothingness that needs to be captured, concealed and then related to negatively? The sacramental character of power (and of law) in founding a relation between a founding Power and a founded power (or a Law and a law) rests on a sacrificial mythologeme of origination, which in the formation of its subjects (as much as its father-figures) beside and within them produces a paradoxical figure of what Agamben analyses as homo sacer. This forms as the subjectivity (the bare or pure essence) of subjectivity (qualified life, political and juridical life). The negative metaphysics of power and of law presuppose a founding Power that is absolute, outside and simple, which reproduces not only the myth of a self-referential origin of power and of law, but also a form of life devoid of life (bare life). It can further be suggested that in modernity the attempt at demythologization of the foundations of power (and law) and the supposed civilizing-process or progress of political, cultural, economic and legal practices did not unconceal their negative relation to a void throne, but instead led to its ultimate concealment by the final foundation that rests with the advent of nihilism. That nihilism, by placing nothingness as the foundation of human action and thought, succeeded in fulfilling the void with nothingness, suggests (if thought more genuinely) its ultimate spectacularization in founding a power and a freedom in a place where none can be found. To say that there is nothing as a ground of power, being and action is still to posit a ground (that is, to keep the structure of foundational grounding, but to alter its content). It is important to note, however, that the English word ‘nothingness’ or ‘nothing’ does not only point to the word ‘nothing’ as an indefinite pronoun in the sense of referring to nothing existent (not any thing), which is shared with the equivalent word in Latin nihil, the French neant and the

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German nichts, but rather it points, as an indefinite pronoun, to another thing so that the word nothingness has a supplementary dimension with respect to those of these other languages. ‘Nothingness’, in English, refers not only to nihil but also to thingness: nothingness, then, negates in a particular way – thingness. It is such thingness, the experience of things, that, as it will become evident below, forms the key question of this chapter. Today it is possible to emphasize the prevalence and founding significance of human oikonomia or action as the kernel of power and of law without reference to a God, a primordial state of nature or any other previously prevalent mystical foundations of authority and power. Yet, this has not absolved late modernity from the mythologeme of the mysterious foundational structure or transmission of being, power and of law, that is, the problem of a negative foundation of being, power and law. This becomes evident in the prevalence and powerfulness of the widespread spectacularization of terms like ‘humanity’, ‘democracy’, ‘progress’, ‘security’ and so forth that are used without any other attempt at a definitional precision other than their supposed self-referentiality. In this sense, for instance, ‘humanity’ is employed in resourcing various types of action, presupposing that an act acts ‘in the name’ of humanity; but this can only be a counter-factual assertion (an ‘easy’ attempt at a universal plane and justification). Could it be that the spectacular prevalence of operative nothingness also offers an opportunity, or what the German philosopher Martin Heidegger called a ‘saving power’? Could it be that the secret kernel of power and of foundational mysticism lies in their linguistic existence and in the manner, more specifically, as analysed below, in which the sacrament of power (and of law) relates negatively to the sacrament of language? How is negativity (the presupposition of a negative definition of transcendental or essential being, power and law) to be rethought if it is to be shown for what it is: an attempt to define the relation to the fact that language exists as such? Is it not that this very fact through philosophical and linguistic investigation has always been assigned to ineffability and invisibility, wherein the fact of language’s existence is posed as a mystery in itself ? Is it not that the sacrament of power is before all else the negative capture of the sacrament of language? How can human thought and praxis be conceived as other than through a reference to a negative or essential foundation? To think and to be without a negative relation to some essential foundation (even one made of nothing) – this is the key motive of Agamben’s thought.

The sacrament of language: the paradigm of oaths In the first chapter the institutional rite of the Eucharist was briefly referred to as an example of the imagined sacramental foundation of faith, community and of law, and also as an example of the problematic amalgam of ‘political theology’ with regard to the notion of presence and to the problem

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of foundations in the mythologemes that worked through history as the mystical means for the transmission of law and of the alleged sources and justifications of power. Goodrich claimed that the Eucharist was not only ‘the exemplary sign of Christian faith’, but also the original sacramental ritual of authority. As a sacramental signum of the foundation of authority and power, it was suggested with Agamben that this points to a wider problem as to the institution of power, law and faith through the establishment of problematic pseudo-bipolarities that, instead of setting an opposition between two different things, point to a mechanism of presupposition of two mutually defined polarities, whose relation is characterized by a transition (a negative representation of one before the other). The sacrament of power was shown, from inception, to be a mythologeme of foundations, the concealment/unconcealment of the positing of an arche¯ through ritual, administrative acts – an oikonomia. The particular example of the Eucharist serves to show not just a sacramental ritual, but also, as is suggested below, an example of the sacramentalization of language in the first place. It is time briefly to revisit, once more, the example of the Eucharistic rite to further elucidate the wider problem sacramental power (and law) in relation to the so-called sacrament of language. The time and place of consecration, as explained in Chapter 1, takes place in the instance of pronouncing the words ‘Hoc est corpus meum’ (‘This is my body’). What kind of utterance is this? Louis Marin explained this utterance as resulting from what he called a ‘power speech’ where ‘one thing’ is transformed into ‘another thing’, that is, a word is transformed into a thing (‘my body’).1 This relation between one thing (word) and another thing (material thinghood) is the conventional relation of denotation which characterizes the Western understanding of the human experience of language as a scission between words and things. Subjective presence is shown to be interlinked to the supposed model of divine presence. The presupposed relationship between words and things is shown to be fundamental to the initiation and rite in question and, by implication to the foundation of faith, subjectivity, community and law. What is the function of such a foundational speech act? In recent decades the enigmatic form of speech, named ‘speech act’ has been celebrated as explaining a secret kernel in the performative power of language: ‘doing things with words’ as the English philosopher John L. Austin put it in his famous theory.2 In this manner a speech act is understood as an explanation of how speech ‘always already brings the body – the unconscious – into play’.3 In this work, with Agamben’s analysis of speech acts in mind as

1 1977: 55–6. 2 Austin, 1962. 3 Felman, 1983: ix.

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analysed below, the emphasis on the enigmatic relationship between word and thing (or body) appears instead as a missed opportunity, in such theorizing, for the theoretical investigation of the very presuppositional structure of language as such: that is, as based not merely on the presupposition of a scission between words and things but more importantly on the presupposition of a negative relation to the fact of the taking place of language. Austin, who initiated speech act theory and introduced the term ‘performative speech’, argued that the presupposed stake in language between truth and falsity was misguided. Austin argued that the performative utterance in immediately producing an action cannot be measured according to its truth or falsity but, instead, according to its success or failure to accomplish such an action. Thus, Austin distinguished between a category of utterances as constantives (descriptive utterances corresponding to truth or falsity) and performative statements whose function is not to state a fact but actually to carry out an act (a performance) through the very act of enunciation. Austin’s primary and central example of a performative act is the ritual undertaking of an oath in the institution of marriage: ‘Do you take this woman to be your lawful wedded wife?’ In response to this question, saying ‘I do’ accomplishes, enacts the marriage as such. In other words, this act does not merely describe what one does in taking this oath but accomplishes it. As Felman put it: I produce the event that [these utterances designate]: the very act of promising, swearing, apologising and so forth [. . .]. Thus, in place of the truth/falsity criterion, essential to constantive language, Austin substitutes in the case of performative language the criterion of felicity as opposed to infelicity, that is, the success or failure of the act or operation in question.4 Austin was able to generalize the implications of such an understanding of performative language by questioning the differentiation between constantive and performative utterances, since both can be seen either implicitly or explicitly to presuppose the presence or disappearance of a deictic ‘I’ (I affirm, I declare, I say etc.). In this sense, it could be said that all utterances are performative acts and that, as a result, what is at stake is not so much (or at least not only) to differentiate between broader and more specific types of performativity but to question what may be the very secret kernel that lies at the heart of human language with regard to the negative relationship between words and things. This is not to diminish the significance, for analytic purposes, between constantive and performative utterances (as the French linguist Benveniste

4 Ibid: 7.

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protested against Austin), but instead to show a wider problem in the understanding of human language in a philosophical sense. In the meantime, Benveniste’s careful distinction between what he conceived as the true sense of the term performative and Austin’s generalization of the term needs to be borne in mind. Benveniste, as Agamben reminds, recognized that the speech act can only function under certain circumstances that stem from the close link between the sphere of the performative and the sphere of the law: The law could be defined as the realm in which all language tends to assume a performative value. To do things with words could even be considered as a residue in language of a magical-juridical state of human existence, in which words and deeds, linguistic expression and real efficacy, coincide.5 Felman recollects that Benveniste added four supplemental characteristics to the definition of the performative: first, ‘performative utterances are always acts of authority’: it is crucial to underline here the centrality of such utterances for the foundation of particular institutional forms of power and of action, as well as their self-referential presupposition and enacting of legitimacy and validity. As will be suggested below, performative utterances self-presuppose, at the same time as they produce, their legitimacy and validity, thereby instituting always-already a ‘regime of truth’ or forms of ‘truthtelling’ (to use Foucault’s terms).6 Secondly, and closely linked to this characteristic, Benveniste adds, ‘the performative utterance has the property of being unique’: as is established by an authorial act, at the same time as it establishes or institutes an author(ity) it forms a particular (and powerful) transmission mechanism for mythologemes of authorization (and more specifically for the legitimation and justification of authority). Specific acts and persons can only perform specific performative acts for their legitimacy to be indisputable. As such, a performative act is specifically linked to the institution of religious, legal and political authority or power. The third characteristic that Benveniste adds is the character of such selfreferentiality in the performative utterance. The utterance of the act immediately realizes the act itself, to the point that a zone of undecidability is formed and presupposed so that it becomes impossible to decide whether it is the utterance that accomplishes the act or the act that accomplishes the utterance. Finally, Benveniste notes that the performative utterance names the act performed and its author. In other words, and in a similar sense to the earlier characteristic of immediacy, it forms (and paradoxically is formed by) a zone of undecidability between denotation and performativity. Agamben writes:

5 Agamben, 2005: 132. 6 Felman, 2003; on Foucault’s term see Foucault, 1993: 198–227. See Agamben, 2008c.

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The performative verb is actually constructed with a dictum that, taken on its own, is of a purely constantive nature, without which it would remain empty and inefficient. (“I swear’ and ‘I declare’ only are of value if they are followed or preceded by a dictum that complements them.) It is this constantive quality of the dictum that is suspended and put into question at the very moment that it becomes the object of a performative syntagma.7 Akin to the state of exception that was examined in Chapter 3, linguistic performativity suspends (that is, presupposes the suspension of ) the normal denotative character of language so that the linguistic model of truth is not denotation, but performativity. In the same formal manner in which the normal model of legality, for Schmitt, is not that of legality/illegality, but that of the sovereign utterance, decision or declaration of the state of exception in suspensive or negative relation to law, the performative speech act is rendered able to link language and the world on the basis of a supposed suspension of denotation, which otherwise would not establish links with things, but would revert to the conventional abyss that separates language and the world in the Western tradition of philosophy and philosophy of language in particular. The primary mode of power and of law is then stipulated to be not the foundation (i.e. the establishment of a negative relation between constitutive and constituted power), but of performativity (the older forms of which are sacratio and the oath). This conforms to the paradigm shift in the human and social sciences from historical experience to an ahistorical, performancerelated paradigm, which seems to form the latest, equally problematic, worldview of things. In one of his most recent works entitled The Sacrament of Language (Il Sacramento del Linguaggio), Agamben offers exceptional insights into the function of speech acts and more widely on the sacrament of language that advance this analysis much further. In this work the act of taking an oath is seen as a crucial example of a speech act. Before the implications of Agamben’s analysis of the sacrament of language are examined in more detail, the oath as an example of a speech act requires some further description. It is not sufficient to study the essential function of oaths, for instance, in relation to political constitutionalism, unless the oath is made more intelligible in relation to what it speaks of; that is, in relation to the concept of a human being as ‘the animal that speaks’. First, though, it needs to be asked in a provisional sense: how is an oath to be understood and what does the taking of the oath do? It is not the place here to undertake a detailed historical account of the use and development of oaths through time and among different Western (and non-Western) cultures.

7 2005: 132–3.

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The central importance of oaths in ancient Greece and Rome is only instructive as an instance in the history of oaths. This is how an oath is defined in a recent study of the ancient Greek oath (horkos): An oath is said to comprise three elements: 1

2 3

A declaration, which may be a statement about the present or past (in which case the oath is assertory) or an undertaking for the future (in which case it is promissory). A specification of the ‘powers greater than oneself ’ who are invoked as witnesses. A curse which the swearer(s) call down upon themselves if their assertion is false or if their promise is violated. This curse if often left to be understood, implicit in the words of the oath itself, particularly in the performative verb ‘I swear’ (in Greek omnumi, later omnuo¯ ); but when there is need for special assurance, it may be, and often is, spelt out.8

In ancient Greece oaths in different forms were of fundamental importance in areas such as politics, citizenship, international treaties, private life, legal trials. Famously, Lycurgus of Athens (d.324) held that ‘it is the oath which holds democracy together’9 and in his study Walter Buckert claimed, more generally, that in this sense religion, political and legal organization were tied together through the oath.10 Judith Fletcher has shown how in Oresteia: until the dikastic oath tendered by Athena establishes the institutionalised forms of dike¯ and horkos familiar to the fifth-century audience, horkos functions to bind members of this unhappy family to retribution and violence. And until Orestes swears his oath of alliance in Athens, no character seems competent to swear a proper oath on stage. Yet as dike¯ is refined with its operations distanced from retaliatory familial violence and finally secured within the operations of the polis, horkos develops correspondingly. Congruent with this development is the changing nature of the Erinyes, oath goddesses, who like the oath itself have the potential for both blessings and curses, and who evolve from vindictive friends to beneficent spirits.11 The narrative of progress that is employed in this explanation of the depiction of the role of oaths in Oresteia can be noted in the claim that when

8 9 10 11

Sommerstein and Fletcher, 2007: 2. On Lycurgus see Mikalson, 1987: 27–39. Burkert, 1985: 250ff. Fletcher, 2007: 102.

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Athena dismisses the validity of the oath challenge posed by the Erinyes, a ‘new’ type of horkos institutes the homicide court and the oath becomes an instrument of public discourse.12 Oaths sworn in special or exceptional situations and, in this manner, instituting a form of justice (as in Oresteia) or citizenship, are of particular interest at this point. One such exceptional form of an oath, as Sommerstein notes, is: The oath sworn by all citizens on entering adulthood and acquiring the rights and duties of a citizen. [. . .] It begins with a general undertaking of obedience to those at any time who exercise power reasonably (emphrono¯ s) and to the ordinances (thesmoi) which have been established and which will be reasonably established in the future, and of respect for traditional religion.13 Furthermore, it is interesting to note another use of oaths to construe commitments as consensual obligations in the interest of not contesting what is thereby resolved about the past: ‘the best known examples of this principle are treaties of warring states and parties in civil conflict’.14 An oath in these examples does not only perform the institution of justice or the courts but also renders past conflicts resolvable and closed, achieving closure for the establishment of contractual or civil bonds. This latter characteristic becomes further pronounced, as Sommerstein observes, in the use of oaths to strengthen a law or decree: In various states a law or decree is strengthened by an entrenchment clause, which attempts to make it harder or impossible to alter or annul the law or decree. Sometimes an oath or a curse is used to add a religious sanction to the human sanctions of the entrenchment clause. Our earliest surviving law, from Drerus in Crete, ends by prescribing those who are to swear an oath, presumably to uphold the law.15 In the Roman world, Greek oaths persisted and were adapted to use particularly in relation to Roman oaths of loyalty. Connolly notes, for example, the Paphlagonian oath that was undertaken in 3  by the people of Neapolis (Phazemon), recently incorporated into the Roman Empire, in order to swear loyalty to their new leader Augustus: ‘I swear by Zeus, Earth, the Sun, all the gods and goddesses, and Augustus himself.’16 Connolly’s analysis of this oath is interesting for a number of points raised as to this particular oath that 12 13 14 15 16

See ibid: 110–11. 2007: 12. Carawan, 2007: 78. 2007: 21. Connolly, 2007: 203–4.

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relate to issues raised earlier in this work as to the mythologemes and the rituals related to sovereignty. Connolly writes: [The Paphlagonians] were to be loyal to the Roman leader, not to their former local dynasties. So following the list of deities is Augustus himself. [. . .] It is notable that the Paphlagonians swear not by his genius, on the model of oaths to Hellenistic rulers but by him and it is striking that he is placed last in the list of gods, in a position of prominence, which was surely a deliberate configuration. [. . .] In fact, the phrasing is very clever: the Paphlagonians swear by Augustus, the mortal, who follows a list of gods. The Paphlagonians would be forgiven for thinking that the emperor was divine, for they swore by him, as well as other gods. Later oaths to the emperor Gaius at Aritium and by the Assians also included the ruler in a list of gods, now second only to Zeus or Jupiter. Moreover, the Paphlagonian text is an unusual example of an oath sworn by a ruler himself, not by his genius, or by his health. This small but important feature gave Augustus a wonderful opportunity to ensure maximum loyalty – to have his new subjects swear an oath by him as a quasidivinity and to him [. . .] but also to his offspring in the dynastic tradition.17 Allegiance to the sovereign ruler is performed through an oath that binds the subjects to loyalty not just to the sovereign body, but to the ruler as a person, ensuring allegiance to the present ruler and also to his offspring. In general it can be stated that the oath forms a peculiar and enigmatic apparatus in the threshold wherein both law and religion ground their being and their mythologemes of power-transmission. Such apparatuses allow faith to be based on a performative oath that is turned into a juridical institution, while in the meantime the juridical institution of the oath cannot be separated from its religious character (and this has also been seen in relation to the apparatus of the state of exception in the analogy to miracles). It could be argued, along the lines of ‘political theology’, that religion becomes a pseudo-law and law becomes a pseudo-religion. Paolo Prodi in his study The Sacrament of Power (Il sacramento del potere) in 1992 falls within the range of assumptions raised here by Spurr, with regard to his claim as to the modern state’s monopolization of oaths as representing a sacralization of power and ‘the first step towards the secular oath’.18 Instead, the use of oaths in the early modern period remains complex and not subject to such accounts of progress or secularization. John Spurr writes: ‘After all the existence of pagan oaths was for early modern preachers

17 Ibid: 205. 18 See Prodi, 1992 and the discussion in Spurr, 2000: 40–1.

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and lawyers conclusive proof of a natural law of respect for oaths: “the reverence of an oath is natural to us, and implanted in us”.’19 Spurr provides a characteristic example of this complexity with regard to Sir Edward Coke’s definition of an oath: In a judgment of 1744 Chancellor Hardwicke ticked off Sir Edward Coke for his early seventeenth-century definition of an oath as the act of a Christian. Oaths, said Hardwicke, ‘are as old as creation and their essence is an appeal to the supreme being as thinking him the rewarder of truth and the avenger or falsehood. This can be expanded through reference to the French revolutionaries’ use of oaths, quoting Mona Ozouf ’s opinion that: The sacrality of the oath, for the men of the Revolution, derived from the fact that it made visible the act of contracting, which was conceived as the fundamental feature of sociability . . . [but it was also combined] . . . with those invocations that linked it to a necessary transcendence and those curses intended to show the extent to which the contractual commitments presupposed individual abdication.20 Spurr notes that particularly significant formal oaths were sworn on the consecrated host, continuing the linking of the function of oaths to sacratio: In Ireland in 1488 Sir Richard Edgecumbe ‘devised as sure an oath as he could’ to bind the earl of Kildare to the new Tudor king: the earl attended mass and then ‘holding his right hand over the holy host’ (which was consecrated and divided into three) he ‘made his solemn oath of ligeance unto our sovereign lord King Henry VII’.21 As an apparatus, from a wider theoretical perspective, oaths formed an important, if not crucial, part in the mythological ritual arsenal of stateformation and, in spite of their waning in importance in modernity oaths serve to indicate a wider problem with which Agamben engages in relation to sacramental power and glory. It could be, in fact, argued that media-suffused public opinion-making, as well as modern techniques of citizenship, have replaced the formal taking of oaths of allegiance. Agamben begins his investigation (or philosophical archaeology) of the apparatus of the oath in relation to political constitutionalism with reference

19 2000: 41. 20 Ibid: 42. See also Ozouf, 1988: 280 and Tackett, 1986. 21 Spurr, 2000: 45.

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to what can be termed as the conventional tradition of the understanding of the oath. Hierocles and Lycurgus, in Agamben’s analysis, present the oath as a supplement to the law (nomos); that is, as conserving (diate¯ rousan) all things in a state, rendering them stable in a way so that the oath (horkos) forms a guarantee of the maintenance of the order of law. In this manner, Agamben notes, the oath does not create some thing or institute it into being but maintains unity and conserves that which others (in Hierocles the law and in Lycurgus the citizens or the legislator) have posited in existence (that is, the constitution of the polis).22 The oral rite of the oath in the Greco-Roman world effectively referred the power it guaranteed and rendered stable to a transcendental or supplemental plane that provided the sacramental source of political power in the form of a presupposition. As an apparatus the central power of an oath is not in the mere affirmation that it produces but in the relation that it institutes between the pronounced word and the invoked power in a self-referential manner.23 The oath as an apparatus of power institutes a virtual state, wherein it enunciates nothing but the self-referential efficacy and veracity of the enunciation itself. In this manner the central relation that is presupposed and rendered stable through the oath could be said to be the essential relation, in the conventional (metaphysical) understanding of human language, between words and things. By suspending the normal realm of denotation, the oath as a self-referential speech act guarantees not the semiotic and cognitive functions of language but the assurance of the enunciation’s veracity and its efficacy (its realization). The paradox that characterizes the oath is that it institutes a thing self-referentially and immediately on the ground of a virtual (exceptional) state, which itself makes this possible. Such a virtual state enunciates nothing but its efficacy. In a similar manner to the self-referential definition of law as a command that commands its own legality and obliges submission, the mythologeme of the oath says its veracity and so self-projects its efficacy. What the oath says is. In this paradoxical relation what is at stake is the essential truth of language (of the word), which, as its secret kernel, presupposes the essential link between faith and logos (or reason and discourse). It could be said that this paradoxical formulation arises from an implied recognition of the lack of a human essence and by extension of human language. As a result authority needs to conceal this lack through the apparatus of an oath (a no-thing that says nothing) in order for the truth and efficacy of language (and of the invoked power) to be guaranteed and instituted in the economy of order. For Philo of Alexandria, Agamben reminds, ‘men are infidels’, without credibility and faith (apistoumenoi). By definition ‘men’ lack fidelity and are

22 2008c: 5–6. 23 Ibid: 7.

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characterized by an essential negativity. The resort to the oath, in this mythologeme, is then necessary in order to attain fiduciarity (fides, faith).24 While in modernity according to scientific convention (in itself a mythologeme) the oath (horkos) is designated as a sacred pre-juridical substance or as derived from a magico-religious background prior to its juridical and political institutionalization (presupposing, thus, for the institution of the law and of the polis a homo religiosus), Agamben’s approach is instead confronted with the enigmatic or paradoxical institution of law and the polis through an enunciation (an oath) that states nothing, without reference to a protoreligious or pre-juridical plane. The essential negativity of power and of human being is equalled by another negativity; that of the ritual enunciation of an oath that says nothing. This double negativity, or enigma, can be rendered properly intelligible, Agamben suggests, only if placed on the threshold between the juridical and the religious, and understood as delimiting and founding something more essential: the very presupposed nature of the ‘animal that speaks’. The presupposition of the founding of law and of politics (as much as religion itself ) is not then to be assigned to a pre-juridical or a pre-religious realm but instead to the presupposition, within human language, of the relation between words and things, or language and praxis.25 Indeed, it has previously been observed that the scientific mythologeme of the sacred, just as a primordial state or realm of ultra-history, or a pre-juridical state, are problematic foundations for the understanding of power, law and religion. Everything becomes more complex if understood in the way Agamben proposes, contrary to such mythologemes of foundations, since to distinguish between a more archaic phase and a more modern one (secular, profane and so forth) is perfectly arbitrary.26 In fact the oldest Latin inscription that describes an oath dates from the sixth century  on a vase of Dvenos, which depicts a marital image that inscribes iovesat deinos quoi me mitan in an indisputable juridical manner.27 In the oldest Greek tradition, too, the oath is directly linked to the Homeric understanding of nomos so that ‘megas horkos’ (the greatest or highest oath) is rendered as ‘horkos nomimos’.28 In both the Greek and the Roman periods the oath is neither just juridical nor just a proto-religious phenomenon (and it is crucial to remind ourselves, for instance, that the distinction between ius humanum and ius divinum in the Roman tradition was an internal division generated within the law itself ).29 But this, once more, is not to claim instead for a primordial state wherein law

24 25 26 27 28 29

Ibid. Ibid: 16. Ibid: 25. Ibid: 25–6. Ibid. Ibid: 28.

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and religion were still somehow in unity. A philosophical archaeology of the oath as an apparatus of power is concerned the more essential and problematic relation instituted negatively, first of all, between words and things and in this manner, crucially, between language and divine language. Agamben proposes a repositioning of the analysis of the function of the oath in order to indicate a more ancient usage (which is not to signify a merely historical claim) to the conventional function of the oath (as a supplement, a guarantee or mere promise), which regards the consistency or meta-consistency of human language as such and thus the nature of the enigmatic delimitation of the human being as an ‘animal that speaks’. The enigmatic institution of the oath, at the same time juridical and religious, becomes intelligible only if placed in the sense of questioning of the nature of the ‘animal that speaks’ and in relation to the so-called ‘political animal’.30 For Agamben two texts permit such a repositioning of the analysis in question. The first is from Philo who speaks of the oath in its constitutive relation to the language of God. In this sense the very words of God are seen as horkoi (oaths), divine laws and sacred norms. The oath is the Logos of God and as such we know nothing of God but his logoi (which are oaths).31 If what God says, happens, then the oath is the Logos of God whose language realizes things immediately. In consequence, the oaths are the paradoxical manner in which language is adapted to the divine model, rendering human language credible and human beings pistoi (faithful).32 This may serve to explain how humans take an oath not to God but more precisely to his name. God is made credible in his logoi, in the foundation of his logoi as oaths, but this is only on the basis of a silent negative presupposition (we cannot know of God but only of his logoi). In this sense, both God’s logoi and the human language are attracted irresistibly to the sphere of the oath. In the oath, according to Philo, the language of humans communicates, through this idiomatic form, with the language of God. In effect, ‘if God is the being whose words are oaths, it is impossible to decide if those are credible because of the oath or the oath is so because of God.’33 The second text that Agamben relies upon is the celebrated text of Cicero’s De Officiis where the obligatory nature of the oath’s assertion or promise is not said to derive from the gods, as is repeated in modern studies, but from the faith that institutes the correspondence between word and action (praxis).34 Fides (fiducia, faith) forms in Cicero the foundation of justice and law, which in turn, is formed on the ground of a res-religiosa, that is, by a

30 31 32 33 34

Ibid: 16. Ibid: 28–30. Ibid: 30. Ibid: 31. 1913.

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series of ritual prescriptions.35 Cicero, Agamben writes, speaks of an affirmatio religiosa: ‘a word that guarantees a religio consecrated to the Gods’.36 This understanding of religio in the sense of ritual acts gets entirely misplaced in the modern understanding of religio as in ‘Roman religion’ with reference to the ius divinum. Instead, religio becomes much harder to define and understand and forms an enigmatic name for what takes place in the relation between oaths and faith (fides) and faith and law. The proximity between oaths and faith is well noted by Agamben who explains that in Greek (pistis as synonym of horkos) and in Latin (fides as ius iurandum Iovis), faith and oaths are tied together.37 The object of faith is, Agamben writes, ‘in every sense the same as that of an oath: the conformity between the words and the actions of the parties’.38 This analysis is further expanded in Il sacramento del linguaggio in relation to the proximity of the oath to a number of other institutions along which it formed. For instance, the oath can be seen as strictly connected to sacratio (and devotio) and effectively the oath means, in this manner, to render some thing sacred. In this sense, an oath is also proximate to a sacred curse (in Greek eis kataran) and sacred curses, in turn, can be seen as central to the enigmatic origin of the law in oaths.39 Ziebarth, Agamben notes, pointed to the centrality of curses and oaths in the origin of law and legislation on the basis that the sovereignty of the people (their juridico-political constitution) was guaranteed by an ara, a political curse that delimited the politico-sacred realm on the basis of a curse of law.40 All citizens could be seen as epiorkoi (under oath). Another proximity lies between oaths and blasphemia and euphemia (blasphemy and euphemy). Blasphemy and euphemy form oaths/ curses grounded on the pronouncement of the sacred name of God, akin to the oath’s swearing in the name of God. What takes place in the swearing of an oath can be reconsidered from this perspective as an evocation of being, the pronouncement of a (divine) name which forms the alleged origin of language. The presupposition here is that human language takes place through the marking of a difference with the language of God. Human expression as an experience can know no immediacy, yet according to Philo the oath is the Logos that necessarily and immediately realizes what it says and so is, in this sense, the very Logos of God. Language is presupposed first as the saying of God and the saying of God is an oath. As an oath the divine language is both the language of the divine Father or the Logos of (sovereign) creation (where

35 36 37 38 39 40

Agamben, 2008c: 33. Ibid. Ibid: 35. Ibid: 37. Ibid: 41 and 48. Ibid: 52.

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it is not subject to denotation or semiotic signification, but is simply – haplos – and realizes immediately what it says) and the language of governance acting in unity with the Trinity and most crucially, according to the theologians, through the hypostasis in Christ. It is the oikonomia of a speech act, an oath, that institutes the scission between a sphere of immediacy that is presupposed as a transcendental realm (divine language, the aphaton and the arrheton) and a sphere of mediacy (human language). According to this understanding, an ineffability and a sphere of discourse (human language) are always tied together and they are so, it can be said, through an oath that is needed to produce and guarantee performatively what it cannot do empirically (the negative relation between the two realms). Human law is seen as always mediated through language and reasoned discourse, yet if theorists maintain the relationship to a sphere of divine or transcendental law, human law remains characterized by the presupposition of a negative definition of the ‘Law of law’ (and of the ‘Being of being’): a sphere of immediacy that is immediately concealed in order to make mediation possible. Human law in this manner remains other than of a human act. Human language is similarly conceived as always-already presupposing a silent, though immediate, foundation in a realm that is inaccessible and absolute: the realm of divine or absolute Logos. Human language, as well as law, can be said to be grounded through faith in the foundation. The oath is the apparatus that guarantees and renders stable the order of words (names) and things through presupposing a more ‘primordial’ relation to divine language and being a sphere where words and things were not yet separated or separable. The paradox of the oath is rooted in the presupposition of an ineffable realm that says nothing and yet governs the lower kingdom of words and things. In this sense, Agamben suggests, the Christian theologians speak of a communicatio idiomatum in order to define the communication between the divine nature and the nature of human beings, guaranteeing their unity as a hypostasis in Christ.41 The Eucharist can be understood as a sacramental rite that forms on the basis of a speech act. ‘This is my body’ enacts the unity of word and thing by speaking or referring to the absolute realm of immediacy of the divine Logos. Such is the sacramental power of language at this instance that in effect the enunciation ‘This is my body’ is not metaphoric or a magical transubstantiation but, instead, akin to an oath where the priest as much as the faithful declare (and in this way produce) their faith and community with God. What is mythologically at stake in the foundation of faith (or the Church) and of law is the maintenance of a relation with what founds the so-called ‘inside’ or norm and yet must remain ‘outside’ through a state of suspension or a state of exception.

41 Ibid: 69–70.

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The name of God is an absolute proper name (and every name is presupposed as absolute), a substantia sine qualitate which is indicated by faith (demonstratio ad fidem): a pure experience of the word, a pure and naked existence.42 Agamben writes: ‘Every oath relates to the name par excellence, the name of God, because the oath is this experience of language that takes language to be as a whole a proper name.’43 By presupposing the realm of the absolute evocation of being, the realm of proper names, the realm of divine Logos where word and thing are inseparable, every faith is shown to rest on the certainty of the name of God and every enunciation of a name is in this sense an oath. When human language is conceived on the basis of such a suspension of denotation and signification as its fundamental presupposition, to speak becomes to believe, that is, to believe in the name. Effectively to speak, following Agamben’s analysis, means to take an oath. This is how an oath can be perceived as the perfect example of a speech act and speech acts in turn can be understood as the remainder in human language of a presupposed state or place (co-originary to the founded structure of human language) wherein the nexus between word and thing is not that of a semantic-denotative nature but of a performative nature. Contrary to the modern scientific assumption that this refers human language necessarily to a magical-religious primary state, Agamben shows the existence of an antecedent (if not co-originary) bipolar structure (a functional intertwining of divine language and human language) to the distinction between sense and denotation. It is performativity, as in a speech act, that forms the origin of language, the origin of this bipolar mythologeme and which structures the model of truth, for human language, not along the lines of denotation but along the rite of performativity (and faith). This bipolar structure is a mythologeme that structures in religion the relation between the name of God and the language of the faithful (their community), while in linguistics it structures the relation between proper names and discourse and in philosophy it structures the relation between absolute being and existence. In law this bipolar structure marks the relation between anomia and nomos (or Law/lessness and law). That these structures (and the presupposed originary essence of language which they are based upon) have remained unthought is tightly linked with the wider problem for thought that is posed, with Heidegger concept of ontotheology examined below. For now, it is crucial to note that following Agamben’s analysis, both religion and law cannot be said any longer to pre-exist the act that founds them. What is more, religion and law can be said to be co-originary to the bipolar structure that is instituted first between faith (from which law and

42 See ibid: 72. 43 Ibid: 73.

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religion emanate) and reason or assertion (from which logic and science emanate). The foundation of law and religion is thus grounded in a sacramental character or definition of power, which at the same time is shown to be antecedent or at least co-originary to the sacrament of language. In the sacramental act, as in the oath, Agamben writes, ‘what takes place is the performative experience of a language that has the force to realize what it says’.44 The ‘mystical authority of the law’ is then the violent force of a word: a word without material application and with a self-referential efficiency that is presupposed as the originary and absolute realm of the (divine) law. The sphere of law is that of an efficacious word, of a saying that is always a proclamation, an indicating, so that ius is always-already a ius dicere (a saying that conforms to the law) and vim dicere (a saying of the efficacious word).45 This serves to explain, Agamben argues, that the proper mode of law has always been that of a performative imperative (a command in the form of an oath, that is, in the invocation of the name of law). According to the Eucharistic rite religion paradoxically bases faith on a performative sacramental act (akin to the oath) that is turned into a juridical institution, a juridical knot that cannot be unbound. Law bases its guarantee of order on a performative oath which is really founded on faith. A presupposed negative excess of faith (God), of law (Sovereignty) and of language (proper name, immediacy) as the necessary filling of the void at the heart of human being (the lack of an essence) and of language, place a human being in the position of a mysterious a priori indebtedness and guilt. This means that homo sapiens is confronted not just with a cognitive problem (the difference between words and things), but with an ethico-political problem where homo sapiens is cooriginary with a homo iustus.46 The presupposed distinction between bare life and the qualified or good life finds its enigma in the sacrament of language that is co-originary with the sacrament of power and law. The sacrament of power and of language produce, through a performative ritual (an oath), the scission where humanity opposes its linguistic being to its actions. In this manner the force of humanity’s laws is the epiphenomenon of its oaths.47 The task, if it is one, is to show that pure life (bare life) or pure experience (oath, Law of law) are produced, indicated and enforced by an act of scission that must at all costs remain unthought and unsaid. Such presupposed grounding is to remain concealed and in force without significance. Today, we witness an unprecedented proliferation of words that remain powerful when they appear empty of content and express ‘in vain’ what remains mysterious

44 45 46 47

Ibid: 86. Ibid: 85–6. Ibid: 91. Ibid: 94.

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is the sacrosanct invisibility of their performative evocation by ‘authors’ that cannot be held responsible and that remain imperative commands without imperators in law, politics, and morality.48 Terms such as humanity and human rights, progress, the free world, democracy and so forth are evoked without reference to an author other than through their self-referential imperativity. This is not to diminish the traditions of thought and political struggle that such words also are associated with, but rather to think what remains unthought in each of their evocations as imperatives. As long as the scission between word and action or thought and praxis remains unthought and not situated within the conception of an ontological and wider philosophical problem, actuality and possibility will remain entangled in a pseudo-bipolarity that relies on the concealment of the obvious. But before this problem is encountered more decisively in the next chapter, a realignment of the philosophical experience is needed, especially since philosophy itself is subject to the scission between word and action or thought and praxis and is in this sense proximate to the theological dogma of ineffability.

The language of mystery, the mystery of language It is now necessary to suggest the wider philosophical analysis that informs Agamben’s geneaology of power and law. In an earlier essay titled ‘The Idea of Language’ in Idea of Prose, Agamben begins his analysis with reference to the problematic conception of revelation that informs both theology and philosophy and which is particularly relevant for the analysis of authorial invisibility and ineffability. Agamben writes: The constant trait that characterises every conception of revelation is the heterogeneity with respect to reason. This is not simply to say – even if the Church Fathers often insisted on this point – that the content of revelation must necessarily appear ridiculous to reason. The difference at issue, here, is more radical, and it concerns the plane on which revelation is situated as well as the precise structure of revelation itself. [. . .] What revelation allows us to know must, therefore, be something not only that we could not know without revelation, but also that conditions the very possibility of knowledge in general.49 Revelation is always self-referential, a self-revelation that presupposes nothing (if only itself ). That is God, the invisible revealer, is the revelation itself. Agamben thus draws the concept of revelation closer to the understanding of

48 Schütz, 2009. 49 1999b: 39.

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human language (in its constitutive relationship with divine language) and he does so through a reconsideration of the Trinitarian dogma (and theology) that is seen as the most rigorous attempt to cohere to the paradox of the divine word’s primordial status as revelation. Agamben writes: When St. Paul wanted to explain to the Colossians the sense of the economy of divine revelation, he wrote: ‘Even the mystery which hath been hid from ages and from generations . . . now is made manifest.’ (Col.I:26). The word ‘mystery’ (to mysterion) in this phrase is placed in apposition to the ‘word of God’ (to logon tou theou), which ends the previous verse (‘Whereof I am made a minister, according to the dispensation of god which is given to me for you, to fulfil the word of God’). The mystery that was hidden and that is now made manifest concerns not this or that worldly or otherworldly event but, simply, the word of God.50 Here is an indication that the structure of bipolarity between the divine Kingdom and its oikonomia is deeply rooted in a dogma that institutes a particular understanding of divine language in relation to oikonomia, ministration or governance: that is, the divine word in relation itself to a particular (and presupposed as primordial) oikonomia. The sole content of revelation, Christian theologians repeatedly stated, is Christ itself, that is, the Word of God, which Jewish theologians ‘affirm in stating that God’s revelation is his name’.51 What an oath refers to by implication as an unknowable concealed author (its transcendent referent) forms in revelation the very enigma as to what is paradoxically revealed. A paradoxical revelation since what is revealed is the concealment of God (what is revealed in the word as incomprehensible and yet as determined in Christ, in the word as such). Revelation is always revelation of an unknowable (God himself ). In the Trinitarian dogma as expressed in the prologue to the Gospel of John ‘en arche¯ e¯n ho Logos’ (‘In the beginning was the Word’), Agamben recalls that the Trinitarian movement of God (that has become familiar to us through the Nicene Creed) ‘formed as an expression of belief, which it can be said, forms akin to an oath: “Credo in unum domimum . . .” – “I believe in one Lord . . .”.’52 Akin to an oath because revelation relies on the presupposition of nothing else but the Word itself that is God. Agamben writes: The word that is absolutely in the beginning, that is therefore the absolute presupposition, presupposes nothing if not itself; it has nothing before

50 Ibid: 39–40. 51 Ibid: 39. 52 Ibid: 40.

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itself that can explain or reveal it in turn (there is no word for the word); its Trinitarian structure is nothing other than the movement of its own self-revelation.53 The trinity doctrine is the dogma that guarantees the tradition (and its transmission) of theological truth: that is, the unity of the Father (name), the Son (Logos, word) and the Spirit (their relation). Hence the saying of Nicholas of Cusa that Agamben cites in another essay titled The Tradition of the Immemorial: The rose in potentiality, the rose in actuality, and the rose in potentiality and actuality are not other and different . . . Thus I see the one and threefold rose thanks to the one and threefold principle. But I see this principle shining in everything, as there is no principle that is not one and threefold. [. . .] Hence when I see God not presupposing his principle, when I see God presupposing his principle, and when I see God emerging from both, I do not see three Gods, but the unity of divinity in trinity.54 What is revealed as the paradox of revelation is that revelation reveals what is invisible in revelation, and remains so, in the form of the possibility of knowledge in general, that is, the ontological presupposition of knowledge (that has no ontic content and which says nothing about worldly reality). The word that lies in the beginning presupposes nothing but itself, the word at the arche¯ is the revelation of the fact that language exists, a fact that transcends and conditions all other ontic facts. In theology it reveals that the word of God is, not how he is, but that he is. In philosophy it reveals that language exists without resort to another word or language that could explain what language is: its essence. The fact of language’s existence as such indicates not something that could be said through language as to this or that, but rather concerns the fact that the word, that language, exists; it points to the creation of reason as such, its condition of possibility in general. Is philosophy to substitute, however, one dogma (the existence of the divine word) simply with another (the existence of language)? Agamben is highly perceptive of this danger and in ‘The Idea of Language’ he examines ‘the locus classicus of the problem of the relation of reason and revelation’, that is, Anselm’s ontological argument as to the existence of the divine word. It is necessary at this point to quote Agamben’s argument at length:

53 Ibid: 41. 54 As quoted in ibid: 110.

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For, as was immediately objected to Anselm, it is not true that the simple utterance of the word ‘God’, ‘that of which one cannot think anything greater’ (quod mains cogitari nequit), necessarily implies the existence of God. But there is a being whose nomination implies its existence, that being is language. The fact that I speak and that someone listens implies the existence of nothing other than language. Language is what must necessarily presuppose itself. What the ontological argument proves is therefore that the speech of human beings and existence of rational animals necessarily imply the divine word, in the sense that they presuppose the signifying function and openness to revelation (only in this sense does the ontological argument prove the existence of God – only, that is, if God is the name of the pre-existence of language, or his dwelling in the arche¯ ). But this openness, contrary to what Anselm thought, does not belong to the domain of signifying discourse; it is not a proposition that bears meaning, but rather a pure event of language before or beyond all particular meaning.55 This work returns to this originary logical dimension indicating the pure event of language, taking place without any determinate event of meaning, next to begin to suggest a different possibility of thought and to also analyse this pure event of fact through and against the dogmas that institute the human being as ‘the animal that speaks’, that is in its nexus with a presupposed relation between ineffability and discourse or transcendence and existence. Towards the conclusion of The Sacrament of Language Agamben links his analysis with the problem that preoccupies all of his work: that is, the answer to the question – what does it mean to define a human being as ‘the animal that speaks’? The central question is: how and why is language structured through a bipolarity between divine and human language, transcendence and existence, nature and culture, nothingness and being, animality and humanity? The experience of human language is at the heart of Agamben’s thought and writings (and it should be at least noted that it is what is at stake in the experience of reading his work). In the preface to the early work titled Infancy and History: Essays on the Destruction of Experience (originally published in Italian in 1977/78 and in English in 1993), Agamben writes of the unwritten long-term project of his thought, titled The Human Voice, as remaining stubbornly unwritten, perhaps destined to be so, forming in fragments, instead, in works such as Language and Death: the place of negativity (1982), in numerous essays collected in English in Potentialities (1999) and in more recent works such as Signatura Rerum (2008) and The Sacrament of Language (2008) (elements of this unwritten work appear decisively in crucial moments

55 Ibid: 41–2.

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of other volumes including the Homo Sacer series). In the Preface Agamben offers an excerpt from this unwritten work that frames the question at hand as follows: Is there a human voice, a voice that is the voice of man as the chirp is the voice of the cricket or the bray is the voice of the donkey? And if it exists, is this voice language? What is the relationship between voice and language, between pho¯ ne¯ and Logos? And if such a thing as a human voice does not exist, in what sense can man still be defined as the living being which has language? The question thus formulated marks off a philosophical interrogation. In the tradition of the ancients, the question of the voice was a cardinal philosophical question. De vocis nemo magis quam philosophi tractant, we read in Servius, and for the Stoics, who gave the decisive impulse to Western thinking on language, the voice was the arche¯ of the dialectic. Yet philosophy has hardly ever posed the question of the voice as an issue.56 No attempt can be made here to write the unwritten, let alone interrogate it, as if the fact that it remains unwritten would not matter. It is perhaps fitting to the work of an original and genuine thinker who strives to think the unthought (or at least attempts to show it in every thought) that his central and most important work may remain unwritten. Significant signposts to the unwritten have materialized in the works referred to above that point at least to crucial aspects and perhaps to a certain path of thinking. For the philosophical understanding or questioning of language that is at stake here, Agamben’s encounter with Heidegger’s thought is singularly significant and a summary of certain key aspects of Heidegger’s questioning of language and of human being is particularly useful for the appreciation of Agamben’s analysis. As noted in The Sacrament of Language the problem of the pure plane of language indicated in the rite of the oath is akin to the ontological and, more specifically the so-called ontotheological problem.57 ‘Metaphysics’ in this sense is, Agamben writes, ‘the experience of language in the oath’: where in Logos coexist co-originarily being and nothing, discourse and names. Speech acts are to be seen as residues of this very originary experience of language. Whereas Christianity paradoxically bases faith on a performative oath that is turned into a juridical institution (from the start), it is philosophy that, ironically, for Agamben, becomes the true religion, to the extent that at every event of language it thinks the fact of what is said as such, as well as what is said. Philosophy’s proper task then, if it is one, appears to be to show in the said, not just the saying of the said, but also the fact that

56 1993a: 4. 57 2008c: 76.

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language takes place as such. It is in this sense that Benjamin’s impossible injunction to ‘read what was never written’ can be perhaps understood philosophically.58 What kind of experience constitutes this philosophical turn to language as such remains to be elucidated further below. Prior to the institution of a philia (friendship) in relation to wisdom (sophia), which philosophy instigates, a pure event of emergence, of language’s taking place, is thought on the basis of a negative definition of being whereby being is always-already consigned not only to presence and to the present but also to an ineffable past, an immemorial tradition of transmitting a negative ground that remains concealed and silent. Perhaps no other thinker has considered this consignment as a problem rather than as a dogma but Heidegger. While for Kant the term ontotheology relates to Anselm’s ontological argument which attempted to know the existence of an original being through mere logical concepts, without reference to experience, for Heidegger even Kant misses the secret kernel of the ontotheological structure in question. For Heidegger, to put it briefly, Western thought is guided by the question ‘What are beings?’ which for Heidegger harbours another question: ‘What is the Being of beings?’ Metaphysics is the history of answers to this question that speaks of the totality of beings as such, that is, of Being and this forms a fundamental problem for Heidegger. The fundamental problem of the delimitation and relation between essence and existence forms at this point as to the essence or whatness of beings (What is a being?) and the existence or thatness of beings (How is a being a being?).59 These two form the limit-setting signs of the ontotheological problem which Heidegger describes as follows: If we recollect the history of Western-European thinking once more, then we will encounter the following: the question of Being, as the question of the being of beings, is double in form. On the one hand, it asks: what is a being in general as a being? In the history of philosophy, reflections which fall within the domain of this question acquire the title ontology. The question ‘What is a being?’ (or ‘What is that which is?’) simultaneously asks: which being is the highest (or supreme being) and in what sense is it the highest being? This is the question of God and of the divine. We call the domain of this question theology. This duality in the question of the Being of beings can be united under the title ontotheology.60 The question of metaphysics as theology has been encountered a number of

58 See Heller-Roazen, 1999. 59 Heidegger, 1973: 11. 60 Ibid: 10–11.

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times in the preceding analysis when the self-referentiality and self-sufficiency of foundations or origins was noted with regard to the ‘Power of power’, to the ‘Law of law’, to the unmoved mover of Aristotle, to the notion of God in the Trinitarian dogma, to the foundation of sovereignty and, earlier in this chapter in relation to the function of the oath. A self-caused cause (causa sui) in this sense forms the metaphysical concept of God (and of each fundamental ground). In philosophy this is akin to the reflection on the absolute whether in Hegel as unconditional subjectivity or more generally as the realm where words and things, thought and praxis are or can no longer be separated. Such an enigmatic ground of being is posited in Western metaphysics and theology as the pro¯ te¯ arkhe¯ and it is posited at the origin of language as such (en arche¯ en ho Logos) requiring the presupposition of an ontological, universal and first being and a theological supreme and ultimate being, respectively.61 Ontotheology forms the originary problem that is indicated in this scission, which as was seen earlier the oath presupposes and produces between words and things, that poses a higher transcendental referent (God, divine language) whose name is concealed-unconcealed within linguistic being as its silent shadow or the remnant of absolute being. In the case of theology, the divine Word, God, is a word that enunciates nothing and can have no denotative meaning. For philosophy the problem of the proper name or, as Aristotle put it first philosophy (as philosophia theologike¯ ) is of the same order given that ‘Philosophy considers not merely what is revealed through language, but also the revelation of language itself ’.62 Given the earlier discussion of the function of the oath with regard to the scission between divine language and human language, another crucial dimension needs to be added, if only in summary form. Ontotheology (in its selfcaused founding) is onomastic: it is in the name. ‘Let us be clear then’ as the French poet Henri Michaux once proposed, the secret of our metaphysical situation, or situatedness, in the procession of now this and now that name, is that it is not a nature or an essence that is postulated first and foremost but a name (onoma). In this sense the key to our situation is that it is onomastic.63 The Stoic theory of language, Agamben writes, distinguishes two planes in language: the level of names (or of pure nomination, impositio, quaemadmodum vocabula rebus essent imposita) and the level of discourse, which is derived from it as ‘a river from its source’.64 The origin of names escapes the speaker:

61 62 63 64

See Heidegger, 1960: 128. See also Thompson, 2000: 311. Agamben, 1999b: 43. See Michaux, 1973. 1999: 49 and fn.5.

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This infinite ‘descent’ of names is history. Language thus always anticipates the original place of speaking beings, retreating toward the past and future of an infinite descent, such that thinking can never find an end to it. And this is the incurable ‘shadow’ [Dante] of grammar, the darkness that originally inheres in language and that – in the necessary coincidence of history and grammar – founds the historical condition of human beings. History is the cipher of the shadow that denies human beings direct access to the level of names: history is the place of names. The transparency of language – the ungroundedness of every act of speech – founds both theology and history.65 The decomposition of language between names and discourse is articulated as a theological mythologeme that thinks the original level of language as that of names. Things have no proper name except in God and it is only with this presupposition that, in human language, language becomes a means, a mere sign. Alexander Garcia Düttmann writes, with regard to Benjamin’s and Adorno’s notion of apparition: God’s language is the one which gives names to what has just been created by the word, by the ‘creating word’ (das schaffende Wort), this word which allows itself to be neither spoken nor written, neither classified nor translated, neither chosen nor refused, neither loved nor hated, since it absolutely precedes all other tongues and languages. There is no gap between the word and the name which God gives to created things (der erkennende Name: it recognizes the created thing as such): the two move in the same circle, in the circle of divine sameness, they intertwine, intersect and interchange: ‘In God the name is creative because it is word, and God’s word is cognisant (Gottes Wort ist erkenned ) because it is a name.’ In the name God recognizes himself as creator, as word.66 Faith, as argued earlier, is founded on the basis of this very scission between the divine Word and the human word and as such the ‘Word for word’ is formless: neither sensible nor intelligible. In the Second Excursus to the work titled Language and Death: The Place of Negativity which is analysed below in some detail, Agamben shows this formlessness to be based on a theological grammar so that the ‘God of the theologians is also the God of the grammarians’.67 With regard to the problem of the name of God:

65 Agamben, 1999b: 50–1. 66 2000: 75. 67 1991: 27.

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The grammarians suppose that the noun signifies substantiam-cum qualitate, that is, the essence determined according to a certain quality. What happens – the theologians ask themselves – when a noun must be transferred to designate the divine essence, pure being? And what is the name of God, that is, of he who is his very being (Deus est sum esse)?68 The noun as pure substance, the divine name, is meaningless and ceases to signify or is at least transformed into a pronoun (passing, crucially as is explained below, from signification to indication.). Yet even as a pronoun the divine name does not indicate any thing; it is instead, paradoxically, the indication of no thing (nothing). The particular place in language for the experience of faith is thus reserved as an outopos, a not-here: neither sensible, nor intellectual; thus, forming what can be called the negative theology of language. Agamben, crucially, writes: It is important to observe that faith is defined here as a particular dimension of meaning, a particular ‘grammar’ of the demonstrative pronoun, whose ostensive realisation no longer refers to the senses or the intellect, but to an experience that takes place solely in the instance of discourse as such (fides ex auditu).69 Such an indeterminate and absolute being forms as a pure negativity: ‘a shadowy realm said to be inhabited by God’.70 Christian theological reflection incorporates in this way Hebrew notions of the unpronounceable name of God (nomen tetragrammaton), forming a paradoxical grammar of the ineffability of the divine name: That which is construed as the supreme mystical experience of being and as the perfect name of God (the ‘grammar’ of the verb to be that is at stake in mystical theology) is the experience of the meaning of the gramma itself, of the letter as the negation and exclusion of voice (nomen innominabile, ‘which is written but not read’). As the unnameable name of God, the gramma is the final and negative dimension of meaning, no longer an experience of language, but language itself, that is, its taking place in the removal of the voice. There is, thus, even a ‘grammar’ of the ineffable; or rather the ineffable is simply the dimension of meaning of the gramma, of the letter as the ultimate negative foundation of human discourse.71

68 69 70 71

Ibid. Ibid: 28. Ibid: 29 quoting Aquinas, 1947: d.8.q.I, a.I. Italics in the original; 1991: 30.

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In this conception human language is, by definition, not able to reach the presupposed absolute plane of the divine language, yet the latter’s ineffable shadow remains co-originarily constitutive of the human word. It is to this problematic functional relation between a supposed ineffability or negativity and human language that the following analysis turns in some detail to interrogate how human being is problematically defined through a ‘fundamental’ relation to negativity (that is, through a negative definition of the being of being human).

The idea of language In a short passage of the work titled Idea of Prose (published in Italian in 1983) Agamben writes of the problem in question that attains the status of dogma in theology and philosophy as that of the ‘unsayable’. The unsayable in language appears in its concealment as that which cannot be spoken of and yet can be named. As such the unsayable is formed through a scission that lies in the interior of language and which from Antisthenes to Wittgenstein divides language between the name and Logos ‘like a sheer-cliffed watershed’.72 In mysticism, ancient wisdom ‘keeps watch against the level of the name being made to coincide with that of the proposition’.73 Logic and science, too, can form propositions next to every name though only on the basis of the presupposition of the name as such. Philosophy shares the: distrust of an overhasty equation of the two levels, but does not despair of being able to render justice, in its own way, to what has been named. This is why thought does not remain on the threshold of the name, nor knows, beyond this, other secret names: it pursues, in the name, the idea.74 In thought as much as in faith one always fears ‘the truth’: the enigmatic form or negative relation to what is called truth. Today ‘truth’ continues to be placed in explicit or inexplicit quotation marks so that when one attempts to speak of truth, one immediately places oneself in the ‘prison house of language’. The oath, by showing that the model of truth is that of the performative and not that of propositional denotation, falls into the same prison house (the oikos or oikonomia) of language where inevitably it seems one always attempts to speak of the truth only an instant after implicitly or explicitly giving it the form of ‘so it was’ or ‘I am right or wrong’. Truth is in this sense always spoken through an acknowledged or unacknowledged

72 1995: 105. 73 Ibid. 74 Ibid: 106.

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interruption that stops ‘an instant before the truth’ and which through this interruption or gap represents the enigma of truth, of speaking the truth, as a saying that ‘shatters to pieces in the very moment it unveiled its truth’.75 This is perhaps why Heidegger understood truth (aletheia) and its saying as an experience of simultaneous concealment and unconcealment of being in thought. That this experience is still understood, in Heidegger, as the experience of an ungrounded truth in the advent of nihilism or as the interminable search for the intention of the subject who speaks the enigma of truth appears as the silent problem of every expression or thought: a relationship to the ‘unsayable’ or the ‘unsaid’. The becoming visible of the said, of the word, is in Heidegger interminably linked to silence (sige) and to a withdrawal or concealment. How this silence or withdrawal (lethe, forgetting) is to be thought is perhaps the most difficult question for philosophical thought (that coincides with an ethical question). Given the placing of all expression within ‘inescapable’ quotation marks the spectacularization (and, as such, the experience of an ‘empty’ and a ‘vain’ existence) of language, culture and thought, how is this muteness to be thought in a way other than as an experience of bad infinity, nihilism or despair? It is this fundamental ‘quietism’ (sigeticism) that Agamben aims to depose in relation to the understanding of the human experience of language. Could this silence or enigma be experienced instead as the exposition of the things of language, that is, the experience of their sayability or intelligibility in language, not as a presupposition of yet another unsayable (as in the separation of matter and intellect) but as the things themselves in the midst of their vision (idein), their idea? If every saying is simultaneously torn between an appearance of an object (the thing said) and a ‘it seems to me to be this or that’ implying thus always-already a semblance next to every object or thing said, then the experience of language could be said to be always-already the experience of doxa (glory – which etymologically means appearance or semblance). Once more, it is in this way that human language is often perceived in its presupposed relation to divine glory (that is, as founded on an experience that is impossible for human language) of the ‘Word of God’, whereby divinity is manifested as immediate and perfect (simple, haplos) as distinct from the experience of human language. At this point the life of things said is interminably linked to their impossibility, their death, their simultaneous disappearance since the thing said can never coincide with the thing itself (the experience of perfect being is possible only in divine language). Yet, in the messianic tradition of faith, language was ‘given to us’ as a divine gift to free things from their images or mere appearances and ‘to carry to appearance

75 Ibid: 107 and 109.

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appearance itself, to lead it to glory’.76 A different possibility to a negative theology or mysticism is shown for thought, that is, the experience of the idea of language, a vision of one’s own blindness, a paradoxical experience that breaks not with silence as an experience, but with the presupposed negative definition of being. Agamben writes: But what can the vision of a blindness mean? I want to seize my obscurity, that which remains in me unexpressed and unsaid; but this is precisely, my own openness, my own being nothing other than a countenance and an eternal appearance. If I were truly to see the blind spot in my eye, I would see nothing (this is the darkness in which the mystics say that God dwells). This is why every countenance contracts into an expression, rigidifies into a character, and in this way passes on and collapses in on itself. Character is the grimace of the countenance at the point in which it becomes aware of not having anything to explain and desperately retreats behind itself in search of its own blindness. But the only thing there would be to grasp here is an openness, a pure visibility: only a face. And the countenance is not something that transcends the face – it is the display of the face in its nudity, victory over character: word.77 How to conceive of such seizing of obscurity without resort to an eternal deferral (of the truth of appearance) or without resort to an interminable hypothesis (of a negative definition of being as nothingness); or finally without resort to a bare existence where power can locate its unlimited source of violent justification? Agamben’s answer lies with the exposition to appearance of appearance itself in the taking place of language is the idea of language, its vision (idein). In the exposition of such a threshold as other than an experience of a negative limit where truth receives its infinite postponement and becomes eternal judgment or punishment (for a deed never committed) and where life (human life) is no longer torn between a mere life and a qualified life, another possibility presents itself for thought to cease the negative definition of being and to experience the thingness of every thing as an openness to possibility (that is neither triumphant, egoistic, glorious or nihilistic). How is such an openness to be conceived without resort to an emptiness or the silence of the unnameable? In a piece dedicated to Italo Calvino, Agamben quotes Nagarjuna’s sketch of thought that would become his Stanzas of the Middle Way which form a succinct and crucial description of what is at stake, and it is necessary to quote the relevant passage at length:

76 Agamben, 1995: 128. 77 Ibid: 128.

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Those who profess the truth as a doctrine, as a representative of the truth, treat the void as if it were a thing, they make a representation of the emptiness of representation. But awareness of the emptiness of representation is not, in its turn, a representation: it is simply the end of representation . . . You want to use the void as a shelter against pain, but how could an emptiness shelter you? If the void doesn’t itself remain void, if you attribute being or non-being to it, this and only this is nihilism: to have seized one’s own nothingness as prey, as a shelter against emptiness. But the sage dwells within pain without finding in it any shelter, any reason: he remains in the emptiness of pain. For this reason, O Candrakirti, set down that he for whom emptiness is an opinion, and even the unrepresentable a representation, he for whom the unsayable is a thing without a name – these are ones whom the Victorious will rightly call incurable. He is like the over-eager customer who, when the merchant says, ‘I will give you no merchandise’, replies: ‘Give me at least the merchandise called nothing . . .’ Whoever sees the absolute sees nothing other than the emptiness of the relative. But precisely this is the most difficult test: if, at this point, you don’t understand the nature of emptiness and you continue to make of it a representation, then you fall into the heresy of the grammarians and the nihilists; you’re like a magician bitten by the serpent he didn’t know how to take hold of. If instead you patiently dwell in the emptiness of representation, if you do not make of it any representation, this, O blessed one, is what we call the middle way. Relative emptiness is no longer relative to an absolute. The empty image is no longer the image of nothing. The word draws its fullness from its very vacuity. This peace of representation is the awakening. He who rouses himself knows only that he dreamed, knows only of the emptiness of his representation, only of the sleeper. But the dream he now recalls no longer represents, no longer dreams anything.78 Human beings are the only beings who place themselves constantly before mute things and who presuppose in this sense the distinction between word (where ‘man does violence’) and things (which are ‘inviolable’). This becomes evident in the long-standing distinction/relation in Western metaphysics between a human Voice and animal voice. A brief diversion is, thus, necessary to consider this particular form of metaphysical presupposition. For a long time animality (as opposed to humanity) has formed as either an exterior dustbin where what is not considered properly human is placed or as an unexplored (or neglected) bodily semblance interior to humanity that supplements, corrects or is to replace entirely the cognitive understanding of human being. Numerous attempts to either mute the so-called animality

78 Ibid: 132–3.

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of the human or to give it a voice and place it at the centre of the definition of human being could be recalled. Yet here animality is ever-conceived as forming within a pseudo-bipolarity between the human and the animal, and does not wish to think beyond a mere opposition or identity. Instead, the pseudobipolarity in question between the animal and the human, which grounds the scission of human language between word and thing or sound and the letter, is exposed as a problem: a problem that rests on hypotheses of understanding (‘on the side’ of animality or humanity) that are myopic and dogmatic. It is a hypothesis of this work that the terms animality and humanity are definable through their problematic counterposing or relation (in philosophy, science, religion and so forth) and the task becomes to expose this. In other words, neither animality nor humanity are to be taken as fixed concepts which somehow through either a hypothesis of immediacy (animality as sensual being) or of mediacy (humanity as intellectual being) can be taken for granted. Instead, no hypothesis, no presupposition can be any longer invoked in their name, but only an exposition of the threshold wherein they form and simultaneously deform. The experience of this threshold is the experience of ‘the open’, which in human being is nothing more than a continuous experiment (experimentum) rather than a ‘nature’ or a ‘destiny’. If there is a difference between animals and human beings then it is the fact that for human beings their character is directly defined by their experience of language as a scission between words and things. Agamben writes: This is why every countenance contracts into an expression, rigidifies into a character, and in this way passes on and collapses in on itself. Character is the grimace of the countenance at the point in which it becomes aware of not having anything to express and desperately retreats behind itself in search of its own blindness. But the only thing there would be to grasp here is an openness, a pure visibility: only a face. And the countenance is not something that transcends the face – it is the display of the face in its nudity, victory over character: word.79 It remains a peculiarity of human being that its character is formed (and deformed) through its relation to words. It is not the place here to elaborate on the long history of opinions on animals as expressed in the history of philosophy, morality, religion and science. Agamben takes up the question of the relation between the human and the animal in The Open: Man and Animal. Agamben points out that there is a particular type of messianic or naturalist tendency in the type of thought that posits animality as opposed to

79 Ibid: 128.

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humanity, only to claim animality as the limit to which humanity must return if it is to overcome the tension of human history and enter the period of the so-called ‘end of history’. Agamben in his discussion of the Hegelian trope, for instance, as analysed by Alexandre Kojève, notes that such a turn or return to the animality of humanity presupposes a fringe of ultra-history or pre-history that is animalistic (where word and thing coincide and are not yet or no longer separable). Agamben writes: what is decisive is that in this ultra-historical fringe, man’s remaining human presumes the survival of animals of the species homo sapiens that must function as his support. For in Kojève’s reading of Hegel, man is not a biologically defined species, nor is he a substance given once and for all; he is, rather, a field of dialectical tensions always already cut by internal caesurae that every time separate – at least virtually – ‘anthropomorphous’ animality and the humanity which takes bodily form in it. Man exists historically only in this tension; he can be human only to the degree that he transcends and transforms the anthropomorphous animal which supports him, and only because, through the action of negation, he is capable of mastering and eventually destroying his own animality (it is in this sense that Kojève can write that ‘man is a fatal disease of the animal’).80 The messianic end of history is premised on such a presupposition of animality as a supplement or residue (as it is suggested below, the messianic end is tightly linked to the paradox of sovereignty). The biopolitics of the modern and later modern sovereign power looks within this presumed animal reservoir or living nature (a bare life) for the ceaseless presupposition of an animal vessel of humanity. What is crucial is that life (as much as animality) remains in every attempt indeterminate and resort is had to ceaseless divisions, caesurae and pseudo-bipolar oppositions that serve strategic functions in philosophy, religion, theology, science, politics and law. Agamben reminds what is at stake here (and which has been taken up in some detail in the Homo Sacer volumes): It is possible to oppose man to other living things, and at the same time to organize the complex – and not always edifying – economy of relations between men and animals, only because something like an animal life has been separated within man, only because his distance and proximity to the animal have been measured and recognized first of all in the closest and most intimate place.81

80 Agamben, 2004: 12. 81 Ibid: 15–16.

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In other words, no further attempt to define humanity or life is to be undertaken through the opposition between animality and humanity, since this division (which forms the presupposition of further divisions) is part of the problem to be confronted and not something that can be taken for granted. Philosophy, religion and science (and perhaps, too, law) seem to ceaselessly attempt to define and redefine the conjunction (a separation that is also a unity) between two alleged spheres: humanity and animality. The soothing reign or Kingdom of humanity (along with its humanisms and antihumanisms) exists in relation to its very own presupposed difference from animality, from the non-human (and this in as problematica sense as that in which humanity understood itself in relation to divinity). This production and presupposition of ceaseless divisions forms an oikonomia of sovereign claims and administration which no more visibly than in late modernity forms the constellation of the biopolitical government of ‘men and things’. Oikonomia or government is intimately linked to a metaphysico-political operation in which something like ‘humanity’ can be decided upon and produced. Agamben writes: When the difference vanishes and the two terms [man and animal] collapse upon each other – as seems to be happening today – the difference between being and nothing, licit and illicit, divine and demonic also fades away, and in its place something appears for which we seem to lack even a name.82 It could be suggested that the humanist discovery of the human is the discovery that ‘man lacks himself’;83 that humanity ‘suffers’ an irremediable lack which is to say ‘man is the animal that must recognize itself as human to be human.’84 As a result, the human and the animal form as polarities that cannot be defined except in relation to each other and this means that the question of humanity, like that of animality receive a response through a ceaseless re-division that forms on a zone of indecision or indeterminacy between an inside (humanity) and an outside (animality). Since the famous Aristotelian definition of ‘man as the animal that speaks’ (that has language), ‘language’ formed the main place of the distinction between human and animal. Agamben notes the complexity of this presupposed difference in his discussion of Ernst Haeckel’s work on anthropogenesis in the Nineteenth Century.85 Agamben writes:

82 83 84 85

Ibid: 22. Ibid: 30. Ibid: 26. See ibid: 33–8.

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What distinguishes man from animal is language, but this is not a natural given already inherent in the psychophysical structure of man; it is, rather, a historical production which, as such, can be properly assigned neither to man nor to animal. If this element is taken away, the difference between man and animal vanishes, unless we imagine a nonspeaking man – Homo alalus, precisely – who would function as a bridge that passes from the animal to the human. But all evidence suggests that this is only a shadow cast by language, a presupposition of speaking man, by which we always obtain only an animalization of man (an animal-man, like Haeckel’s ape-man) or a humanization of the animal (a man-ape). The animal-man and the man-animal are the two sides of a single fracture, which cannot be mended from either side.86 The presupposition of a non-speaking man, a homo alalus, an ape-man, functions as the ground for the ceaselessness of the decisions and caesurae that define ‘man and animal’. Agamben, linking this form of presupposition to the structure of the state of exception, notes: Insofar as the production of man through the opposition man/animal, human/inhuman, is at stake here, the machine necessarily functions by means of an exclusion (which is always already a capturing) and an inclusion (which is always already an exclusion). Indeed, precisely because the human is already presupposed every time, the machine actually produces a kind of state of exception, a zone of indeterminacy in which the outside is nothing but the exclusion of an inside and the inside is in turn only the inclusion of an outside.87 In this zone of indeterminacy, what would be obtained, however, is neither an animal life nor a human life ‘but only a life that is separated and excluded from itself – only a bare life’.88 It is on the basis of the fiction of a bare life that the lethal logistics over human life have always found their source of justification. A late modern example of an attempt to think the separation between animality and humanity that is significant (though problematic) for Agamben is Heidegger’s distinction in 1929–1930 between animals as ‘poor in world’ (weltarm) or ‘without world’ (weltlos) and man’s existence which is defined by its being-in-the-world.89 The animal is conceived as characterized by ‘poverty in world’ (Weltarmut) and the human as ‘world-forming’ (weltbildend ) and the two form Heidegger’s polarities conceived in an attempt to counter

86 87 88 89

Ibid: 36. Ibid: 18. Ibid. See generally, Heidegger, 1995.

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the bipolarity formed earlier in the history of Western philosophy between animality and humanity. Heidegger is aware of the problem with the fiction of a mere or bare life and points to the problem: Life is a particular kind of being; but essentially it is accessible only in Dasein. The ontology of life is achieved only by way of a privative interpretation: it determines what must be the case if there can be anything like mere-aliveness [Nur-noch-leben]. Life is not a mere being-present-athand, nor is it Dasein. In turn, Dasein is never to be defined ontologically by regarding it as (ontologically indefinite) life plus something else.90 The problem, nonetheless, with Heidegger’s conception of animality and humanity remains. On the one hand, animality is characterized by captivity and total opacity, which yet entails an alleged openness that is impossible to be attained by humanity. On the other hand, humanity is characterized in Dasein as being suspended between world-formation and nothingness ‘having awakened from its own captivation to its own captivation’.91 Modern captivation would not be possible unless something like a bare life was imagined as isolated and capturable. Agamben writes crucially then: The stakes are now different and much higher, for it is a question of taking on as a task the very factical existence of peoples, that is, in the last analysis, their bare life. Seen in this light, the totalitarianisms of the twentieth century truly constitute the other face of the Hegelo-Kojevian idea of the end of history: man has now reached his historical telos and, for a humanity that has become animal again, there is nothing left but the depoliticization of human societies by means of the unconditioned unfolding of the oikonomia, or the taking on of biological life itself as the supreme political (or rather impolitical) task.92 It is easy to underestimate what is at stake in the seemingly mundane or irrelevant problematization of this particular form of the distinction between animality and humanity, nothingness and world-formation, yet ontology is far from a mere ‘innocuous academic discipline’.93 This distinction or anthropogenesis is continuous and it always concerns itself with the overcoming of animal physis in the direction of human history (in other words, it always concerns itself with metaphysics, what comes after physics). The nothingness, whose form will be investigated below, casts a burden over

90 91 92 93

As quoted in Agamben, 2004: 50. Ibid: 70. Ibid: 76. Ibid: 79.

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human life and is made possible on the basis of the capture and the suspension of a presupposed pure animal life as nothingness. The predominance of biopolitics today could be explained on the basis of this presupposition. It is thus important to investigate further where such a captivating presupposition finds its source and whether the mechanism of anthropogenesis that suspends animal life or bare life can be suspended itself.

Locating the place of negativity in language Agamben’s early and most programmatic work titled Language and Death: The Place of Negativity entails an inquiry that permeates the whole of his subsequent work. In this work, summarizing the discussions that took place between Agamben and Massimo De Carolis, Giuseppe Russo, Antonella Moscati and Noemi Plastino in a seminar (1979–1980), Agamben offers one of the most penetrating and Copernican attempts to think through what is at the heart of the experience of philosophy: the fact that language takes place and its key significance for thought and philosophy. This fact has been enclosed within the vertigo of an informulability and ineffability within Western metaphysics to such an extent that it appears more as a philosophical dogma, rather than as a genuine problem. The link between metaphysics and humanism has played a significant role in this enclosure. Heidegger writes: ‘Every humanism is either grounded in metaphysics or makes itself out to be the ground of a metaphysics. Every determination of the essence of human beings, which presupposes an interpretation of what there is without posing the question of the truth of being, implicitly or explicitly, is metaphysics.’94 One central reason for this common trait among humanisms and their necessary link to metaphysics can be explained through the instance that Heidegger considers to be critical in the midst of metaphysical dominance from antiquity to the present: the definition of man by Aristotle as a ‘zoon logon echon’95 (‘the animal that has speech’) as the universal ‘essence of man’. In Roman humanism the characteristic difference of man as expressed by Aristotle translates essence of man as universal ratio. Zoon is seen as referring to a certain interpretation of animality and of life, whereby metaphysics, according to Heidegger, thinks of man ‘on the basis of animalitas but does not think in the direction of his humanitas’.96 Thus logon echon is translated in Roman humanism as rationale, that is, the ratio of the animal as either a ‘faculty of principles’ or a ‘faculty of categories’. In this tradition of Western metaphysical thought the human being is defined on the ground of a faculty for speech and reason or a faculty of death

94 1978: 225–6. 95 Aristotle, 1984 96 1978: 227.

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(Hegel) and the self-grounding of being is seen to rest on a negative foundation that is to remain ineffable and informulable. Furthermore, this is not only an originary foundation but also the force that allegedly draws man into its concern. In contrast, at the seminar in question Agamben writes that the participants opted to leave themselves ‘open to the possibility that neither death nor language originally belongs to that which draws man into its concern’.97 In Language and Death: The Place of Negativity Agamben examines Heidegger’s and Hegel’s philosophical thought as to the question of the relationship between language and negativity. Here the focus will lie on Heidegger’s questioning of the relationship between language and negativity (death). The root of the question as to the relationship between language and negativity (or death) is explicated in the following passage from Agamben’s ‘Introduction’ to the work in question: In fact, in the tradition of Western philosophy, humans appear as both mortal and speaking. They possess the ‘faculty’ for language (zoon logon echon) and the ‘faculty’ for death (Fähigkeit des Todes, in the words of Hegel). This connection is equally essential within Christianity: humans, living beings, are ‘incessantly consigned to death through Christ’ (aei gar emeis oi zontes eis thanaton paradidometha dia Iesoun; 2 Cor. 4:11), that is, through the Word. Moreover, it is this faith that moves them to language (kai emeis Pisteuomen, dio kai laloumen; 2 Cor. 4:13) and constitutes them as ‘the trustees of the mysteries of God’ (oikonomous misterion theou; 1 Cor. 4:1).98 It is worth noting, then, that as early as 1978 Agamben notes the philosophical root of a problem that would later be explored in various guises through, mainly but not exclusively, the Homo Sacer volumes. There seems to be an essential link between the fides (faith) that informs the human concern in and for language (which was analysed through the originary relation between word and things and the relationship formed between the language of god and human language, instituted through the performativity of the oath) and the oikonomia of mystery that Agamben explored in detail in The Kingdom and the Glory. It was seen earlier how the bipolarity between Kingdom and Glory entails a relation to a void, a void throne or ground, and hence a co-constitutive relation to negativity (a negative definition of being and of power). Here, it is argued that this relation to negativity forms in the Western metaphysical tradition the originary mythologeme of the relation-

97 1991b: xii. 98 Ibid.

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ship between language and death or language and (a particular understanding of ) transcendence. Let us examine certain key aspects of how Heidegger questions this originary relationship between language and negativity in his early work on the philosophical trope of phenomenology. A key analytical point is how Heidegger understands phenomenology etymologically. For Heidegger, phenomenology can be derived from the Greek words for ‘phenomenon’ and ‘Logos’. ‘Phenomena’ designate the middle voice phainesthai of phaino, to place into light, that is, ‘what shows itself in itself ’. Logos, for Heidegger, means ‘to make manifest what is being talked about’ in speech. Logos, Heidegger states, in accord with ancient Greek philosophy, is phone¯ (voice), indeed phone¯ meta phantasias, vocalization in which something is always sighted.99 Legein means here apo-phainesthai (to let what shows itself – the phainomenon – be seen – phainesthai – from – apo – itself in the very way in which it shows itself from itself ). It can be stated from start that for Heidegger ‘man’ is not a rational animal but a being without a ‘natural’ voice (phone¯ ) and the technical name for this being-human is Da-sein (Being-there): ‘Being Da, man is in the place of language without having a voice.’100 That is, without a presupposed animal voice, as in the metaphysics that Heidegger criticizes, where: ‘by conceiving language from the beginning as phone semantike [meaningful voice], metaphysics precludes any access to its true essence’.101 This structure of Dasein will be examined in more detail below, but for now the problem of metaphysics in the form of a presupposition of existence is well indicated by Reiner Schürmann who writes: ‘Subjective transcendentalism, from Kant to Husserl, retrogresses from the objects of experience to our a priori modes of knowing them; Heidegger in turn retrogresses from these a priori modes to their rootedness in the entity that we are.’102 Agamben points to this concisely: ‘For metaphysics the foundation is a ground (Grund ) in the sense that it goes to the ground (zu Grund geht) so that being can take place. And as much as being takes place in the nonplace of the foundation (that is, in nothingness), being is the ungrounded (das Grundlose).’103 Metaphysics indicates, in a formative observation for Agamben’s thought, the tradition of thought that conceives of the self-grounding of being as a negative foundation.104 This kind of understanding has direct

99 100 101 102 103 104

1962: 79. 1991b: 55. Ibid: my addition. 1987: 70. 1991b: see generally The ‘Introduction’. Agamben offers a comparative exploration between Heidegger’s Da-sein and Hegel’s Diese in Agamben, 1991; yet I limit here the exploration of the question as to negativity to Heidegger’s early work.

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implications for the understanding of language as well as of human being. The human as the animal that has speech becomes, here, a centering on assertion, saying something (predicating) about something. On this assertionmodality much more is at stake than a mere formulation of language. It is as if determining the border between a first something and a second something were not just a question among many but rather a fundamental metaphysicopolitical operation in which alone something like ‘man’ can be decided upon and produced. In this sense, the mode of assertion is the originary modality in which the definition of man goes through what Agamben calls the anthropogenetic machine.105 It is fitting at this point to look briefly at the Aristotelian definition of ‘the animal that speaks’ by looking at the metaphysics that arguably founds this definition. Aristotle used kategorein in the sense of to predicate, assert something of something, and kategoria for predicate (the most general predicate or category). What lies in the Aristotelian formulation of the categories is the determination of the prote ousia (the first essence) in conjunction and distinction from the rest of the categories. Agamben has crucially revisited the problem of Aristotelian categories: After listing the ten categories, Aristotle distinguishes, as the first and reigning category [. . .] the first essence [. . .] from the second essences [. . .]. While these later are exemplified by a common noun [. . .], the prote ousia is exemplified by ‘o tis anthropos’ [. . .]. The Greek article originally had the value of a demonstrative pronoun, and this persisted even until Homer’s time. In order to restore this function to the article, Aristotle accompanies it with the pronoun ‘tis’ [. . .]; a short while later, in order to characterize more precisely the significance of the first essence, Aristotle writes that ‘every (first) essence signifies a this that.’106 The problem of human being emerges from the very beginning as inseparable from the problem of the significance of the demonstrative pronoun, and for this reason it is always already connected with the field of (metaphysical) indication: ‘The prote ousia, inasmuch as it signifies a tode ti (that is, from a “this” and “that”), is the point of enactment for the movement from indication to signification, from showing to saying. The dimension of meaning of being is thus a dimension-limit of signification, the point at which it passes into indication.’107 The limit of language is seen to arise from within language. The Aristotelian first essence cannot be seen either as in a subject or as of a subject; it can only be recognized by means of Logos. A Logos, in

105 See 2004: 21–2. 106 See generally Agamben, 1991b: 16. 107 Ibid: 17.

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this sense, that is ‘always-already’ subject to a scission between indication and signification. Thus: The Aristotelian scission of the ousia (which as a first essence, coincides with the pronoun and with the plane of demonstration, and as a second essence with the common noun and with signification) constitutes the original nucleus of a fracture in the plane of language between showing and saying, indication and signification. This fracture traverses the whole history of metaphysics, and without it, the ontological problem itself cannot be formulated. Every ontology . . . presupposes the difference between indicating and signifying, and is defined, precisely, as situated at the very limit between these two acts.108 This difference in philosophy is no other than that between existence and essence or existence and transcendence.109 To appreciate the significance of this we need to be reminded that there is a tripartite distinction drawn by Aristotle in the process of interpretation (hermeneia) between en tei phonei, en tei psychei and pragmata.110 But a fourth interpreter holds this tripartite list together: the gramma (letter), the interpreter of the soul. Agamben writes: An attentive examination shows that in the hermeneutic circle of De interpretatione, the letter, as the interpreter of the voice, does not itself need any other interpreter. It is the final interpreter, beyond which no hermeneia is possible: the limit of all interpretation. This is why ancient grammarians, . . . , said that the letter, which is the sign of the voice, is also stoikheion tes phones, that is, its element.111 This diairesis and synthesis implicated in Aristotle’s Hermeneia can be read in a different light: the light of the gramma (the letter). That is: ‘that which is in the voice interprets and signifies the mental experience that, in turn, corresponds to the pragmata . . .’.112 The predominance of the grammata lies in the fact that the gramma is now the ground that sustains and conditions the entire hermeneutical circling. It is the limit of hermeneia. Agamben points this out carefully: Greek grammatical thought came to locate this particular status of the gramma, in that it is not simply (like the other three elements) a sign, but 108 109 110 111 112

Ibid: 18. For such a reading through Wittgenstein and Heidegger, see Agamben, 1993a: 89–106. 1971: 16a, 3–7. 1999b: 37. Agamben, 1991b: 38.

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also an element of the voice (stoicheion tes phones). Following what was in a certain sense implicit in the Aristotelian formula (ta en te phone, that which is in the voice, and not simply the voice itself ), the ancient grammarians defined the gramma as phone enarthros ameres, pars minima vocis articulatae; that is, as the quantum of the signifying voice. As a sign and at the same time, a constitutive element of the voice, the gramma comes thus to assume the paradoxical status of an index of itself (index sui).113 In this manner the place of the grammata stands as the linguistic cipher of the prote ousia (the absolute presupposition) and in this way ‘it shows itself, but only insofar as it was in the voice, that is insofar as it always already belongs to the past’.114 The gramma is fractured between ineffable origination (prote ousia, the negative) and the Voice-as-sign of signification (through a diairesis and a synthesis.) It is this Aristotelian scission in the heart of language that has formulated the quest for the origin or essence of language. Agamben notes: Language, which for human beings mediates all things and all knowledge, is itself immediate. Nothing immediate can be reached by speaking beings – nothing, that is, except language itself, mediation itself. For human beings, such an immediate mediation constitutes the sole possibility of reaching a principle freed of every presupposition, including selfpresupposition.115 For Heidegger, whose analysis of Dasein is central to Agamben’s purposes, prior to form or the categorical schema (whose original formulation is found in Aristotle), there is facticity. Heidegger, in the work prior to Being and Time entitled: Ontology – The Hermeneutics of Facticity (written in 1923), writes: ‘Facticity’ . . . means: in each case ‘this’ Dasein in its being-there for a while at the particular time . . . insofar as it is, in the character of its being, ‘there’ in the manner of be-ing. . . . Being is itself never the possible object of a having, since what is at issue in it, what it comes to, is itself: being. . . . As that which is in each case our own, ‘Dasein’ does not mean an isolating relativization into individuals who are seen only from the outside and thus the individual (solus ipse). . . .116

113 114 115 116

Ibid: 39. Agamben, 1999b: 37. Ibid: 47. 1999: 5.

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Heidegger thus does not locate ‘man’s essence’ in some specific faculty such as reason, nature, the body or cogito. For in Heidegger’s terms, Dasein’s essence lies in its existence. Yet as Dasein is ‘thrown in this world’, it finds itself in impropriety; proper and improper are terms, in this instance, that do not denote moral significations. Rather, the proper is the inability of Dasein to jump over its own shadow (it is already ‘its transcendence in its existence’). Appearances conceal nothing. Human being such as it is – is irreparably so in its facticity. The extreme youth of thought (infancy) lies in its irreparable consignment to profanity: to things (as opposed to nothingness).117 Dasein is not, for Heidegger, a living being that has language. Dasein is always-already separated by an abyss from its corporeal link that s/he shares with an animal and as such the ‘living being’ is ‘probably the most difficult to conceive’ for Dasein,118 which renders the conception of mere or bare life even more difficult to sustain. For Dasein the entry into language (its ek-sisting, for Heidegger) has no root in a voice, in a Stimme: it is neither the manifestation or representation of the ‘presence’ of an organism nor the expression of a merely living being. The essence of language and of the experience of being-there (Dasein) can have no resort to the metaphysics that refers human language to the articulation of an animal voice/being or a living voice/being. In paragraph 29 of Being and Time Heidegger presents Stimmung (mood) as the ‘fundamental existential mode’ in which Dasein is disclosed to itself. Stimmung is conceived at an ontological level away from any psychologization, knowledge (wissen) or perception (wahrnehmen). Yet, Agamben suggests that Heidegger’s structure of human being in Dasein does not escape the mythologeme of negativity, despite being one of the most detailed expositions of the problem of negativity in Western metaphysics. Since Heidegger influnced most of the major Western philosophers of the twentieth century, Agamben’s argument acquires further significance. Agamben argues that Stimmung etymologically should be linked, above all else, to ‘its originary acoustico-musical dimension: Stimmung appears in German language like a translation of the Latin concentus, of the Greek armonia.’119 Stimmung conveys Dasein before the disclosure of its da (there) as ‘thrown’, that is, it reveals at the same time with disclosure that Dasein is never a master of its being. Dasein from the start is linked to an essential negativity and Dasein can only appear to itself as an inexorable enigma (unerbittliche Rätselhäftigkeit).120

117 118 119 120

See generally Agamben, 1993a. See Agamben, 1991b: 54–55. Ibid: 55–6. As quoted in ibid: 56.

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The fundamental Stimmung, according to paragraph 40 of Being and Time, is ‘anxiety’. Anxiety as a mode or state-of-mind signifies the anxiety of desubjectivization inherent in dasein’s throwness. Dasein is originally conveyed to the world before its da and the same time it reveals the da as a non-place, a nowhere. Dasein is linked from the start to an experience of negativity. When Heidegger posits death as the ‘inappropriate possibility’, the impossible possibility for Dasein, since Dasein cannot actually experience its death but only in the form of an anticipation, its totality can only be designated through yet another negativity: the unsurpassable possibility of death. Dasein is founded through a double negativity (in ‘being-thrown’ and ‘being-toward-death’). Being-thrown (Geworfenheit) reveals itself as being thrown in the direction of death, which is to say in the direction of possibility (Geworfenheit in die Möglichkeit.) This is why the proper understanding of being-thrown implies the fundamental ‘affective disposition’ that is anxiety: Anxiety that necessarily refers to anguish in the face of death, is in truth the principle auto-affection, the Stimmung in which the Self is constituted by the very fact that it is ‘claimed’, ‘called’ as an individual for its ownmost being-able, absolute and unsurpassable. As a principle of individuation, of absolutization, death is charged with a capital revelatory function: it opens Dasein to itself (solus ipse) as that which exists as being-thrown for and in relation to (zu) its end. Being-there is only there in order to exist as thrown into possibility, or inasmuch as it strikes out in that direction, anticipates it or goes ahead of it (vorlaufen), and by so doing delivers it as such, making possibility possible. Death is not an expiration date with which Dasein will surely be faced one day or another, a possibility that hangs over its head and that will ultimately come true: it is not possible except as being itself essentially possibilizing, that is to say, as that instance always to come that allows Dasein to set out, going ahead, defining, or, better, in defining thereby the ontological possibility of its entire being-able-to-be.121 This is what Heidegger means when he suggests that man is more than simple (or mere) man (mehr als der Blosse Mensch), that is, that ‘man’ is something radically different from a Lebenwesen (a living being or a bare life). For Heidegger, while an animal merely ceases, a human being can think death as its ‘ownmost’ impossibility. In order for Dasein to be, it is called by its mortality through the ‘call of conscience’ that says nothing and is marked by a ‘guilt’, and yet in order to be able to see itself, to form itself as a totality, it constructs another death, a ‘death’ (a concept of death). In both ‘originary’

121 Ibid: 86.

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experiences of ‘being-thrown’ and ‘being-toward-death’ the experience of negativity appears co-constitutive of Dasein and Heidegger places the inquiry of negativity at the heart of the problem of the ontological origin in Western metaphysics. In a key passage in Being and Time Heidegger identifies the condition with and against which he is thinking: In spite of this, the ontological meaning of the notness (Nichtheit) of this existential negativity is still obscure. But this holds also for the ontological essence of the ‘not’ in general. Ontology and logic, to be sure, have exacted a great deal from the ‘not’, and have thus made its possibilities visible in a piecemeal fashion; but the ‘not’ itself has not been unveiled ontologically. Ontology came across the ‘not’ and made use of it. But is it so obvious that every ‘not’ signifies something negative in the sense of a lack? Is its positivity exhausted by the fact that it constitutes ‘passing over’ something? Why does every dialectic take refuge in negation, without founding it dialectically and without even being able to establish it as a problem? Has anyone ever posed the problem of the ontological source of negativity (Nichtheit), or prior to that, even sought the mere conditions on the basis of which the problem of the ‘not’ and its not-ness and the possibility of that not-ness can be raised?122 What is the source of this originary negativity that appears to Dasein not only as its origin but also as its constant threat of desubjectivization or outstripping in being-toward-death? For Agamben everything depends on how Dasein is to be understood in relation to this double negativity: what is the precise meaning of the term Dasein? This key Heideggerian term signifies being-the-there (Da). While the conventional translation of the term is ‘being-there’, for Agamben’s analysis, the correct understanding of the term should place emphasis on being-the-there since: At the point where the possibility of being Da, of being at home in one’s own place is actualised, through the expression of death, in the most authentic word, the Da is finally revealed as the source from which a radical and threatening negativity emerges. There is something in the little word Da that nullifies and introduces negation into that entity – the human – which has to be its Da.123 Having briefly followed Agamben’s sympathetic and critical rereading of Heidegger’s structure of human being in Dasein up to this point it becomes

122 Ibid: 331–2. 123 1991b: 5.

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evident that the question that needs to be posed is: what kind of term is this Da that forms the source of the enigma of negativity itself ?

From essential negativity to the language of profanity: the function of linguistic shifters Da-sein (Being-the-there), for Heidegger, is thrown to its there (Da) to realize that it is threatened by a radical negativity (its death). Negativity is found in the Da (as thrown there) and arises from the Da (as death). For Heidegger Da-sein is in this sense the ‘placeholder of nothingness’. What is the Da? Da, like there in English, to in Greek and hic in Latin, is a demonstrative pronoun, a shifter.124 As Agamben notes, in a grammatical text of the Thirteenth-century we read: The pronoun is a part of speech that signifies through its mode of being and is specified through some other thing . . . Whoever hears these pronouns – I, you, he, or something else – understands something permanent, but what is understood is neither distinct nor determinate nor under determinate understanding; however, it can be determined and distinguished and specified through some other thing, by means of demonstration or relation.125 Agamben comments: Demonstration (or, in the case of the relative pronoun, relation) completes and replenishes the meaning of the pronoun, and so it is considered ‘consubstantial’ with the pronoun. Inasmuch as it contains both a particular mode of signification and an indicative act, the pronoun is that part of speech in which the passage from signifying to demonstrating is enacted.126 Such pronouns as there, this, I, you, now and so forth are in modern linguistics classified as shifters127, or as indicators of the utterance.128 In what sense does the pronoun ‘there’ or ‘I’ indicate? In the sense of an utterance. Agamben explains, quoting Roman Jakobson: ‘There is no point in defining these terms and demonstratives in general through, deixis, as is the usual

124 On shifters see Brown, 1996, and Arista and Moreno, 2004: 71; see also Heller-Roazen, 1999; and Clemens, 2008: 43–66. 125 Thurot, 1874: 172; as quoted in Agamben, 1991: 21 126 1991: 22. 127 See generally Jakobson, 1971: vol. 2. 128 See generally Benveniste, 1966/1974: vol.1 and 2.

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practice, if we do not add that deixis is contemporaneous with the instance of discourse that bears the indication of the person.’ And he continues, ‘from this reference the demonstrative derives its unique and particular character, which is the unity of the instance of discourse to which it refers. Thus the essential thing is the relation between the indicator (of a person, a place, a time, a demonstrated object, etc) and the present instance of discourse.’129 Unlike other indicators, pronouns are presented in linguistics as ‘empty signs’, which become ‘full’ as soon as the speaker assumes them in an instance of discourse. Such pronouns are shifters in the sense that as grammatical units they entail no meaning outside of a relation to the uttered message. Agamben explains: The proper meaning of pronouns – as shifters and indicators of the utterance – is inseparable from a reference to the instance of discourse. The articulation – the shifting – that they effect is not from the non-linguistic (tangible indication) to the linguistic, but from langue to parole. Deixis, or indication – with which their peculiar character has been identified, from antiquity on – does not simply demonstrate an unnamed object, but above all the very instance of discourse, its taking place. The place indicated by demonstratio, and from which only every other indication is possible, is a place of language. And Agamben continues: Indication is the category within which language refers to its own taking place. [. . .] The sphere of the utterance thus includes that which, in every speech act, refers exclusively to its taking place, to its instance, independently and prior to what is said and meant in it. Pronouns and the other indicators of the utterance, before they designate real objects, indicate precisely that language takes place. In this way, still prior to the world of meanings, they permit the reference to the very event of language, the only context in which something can only be signified.130 This event in the history of philosophy has been known as ousia or Being. That which is ‘always-already’ indicated in Logos or speech without being named in philosophy: Being. Agamben’s rethinking of Heidegger’s Dasein can be summarized in the following way: Da-sein means to be or witness the taking place of language. Since Dasein is in language and thus is already in its transcendence, its transcendence has a linguistic structure (and this structure is no other than that of shifting through the shifters).

129 As quoted in 1991: 24. 130 Ibid: 24–5.

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In the history of grammatical reflection in the ancient world the pronoun was connected: to the sphere of the first substance (prote ousia) made by Appolonius Disculus, an Alexandrian grammarian from the second century A.D. [. . .] The noun was seen to correspond with the Aristotelian categories of (second) substance and quality (poion) – that is, in terms of Latin grammar, the part of speech that designated substantiam cum qualitate, a substance determined in a certain way. The pronoun was situated even further away from the noun, located, in a certain sense, at the limits of the possibility of language. In fact, it was thought to signify substantiam sine qualitate, pure being in itself, before and beyond any qualitative determination.131 In this sense the field of the pronoun was seen in the context of medieval logic and theology as identical to the field of transcendentia: ens, unum, aliquid, bonum, verum.132 A term that is transcendental was seen as such because it could not be defined by any other category. Transcendentals, then, form what is always-already said in every utterance by the very fact of saying it and a transcendental is a demonstratio that can be determined and distinguished by means of relation to another thing.133 Yet union of the modus significandi of indication (in the pronoun) with the modus significandi of the indicated (in the indicated noun), two modes of signifying a linguistic non-tangible fact, remains obscure and indefinite.134 If Jakobson’s earlier remarks, as quoted above, are coupled with Benveniste’s identification of the essential character of pronouns with an instance of discourse: There is no point in defining these terms and demonstrations in general through deixis, as is the usual practice, if we do not add that deixis is contemporaneous with the instance of discourse that bears the indication of the pronoun; from this reference the demonstrative derives its unique and particular character, which is the unity of the instance of discourse to which it refers.135 The metaphysical function of articulating a passage between signification and indication, between langue (code) and parole (message), from transcendence to immanence, is then attributed to the shifters. Agamben writes: ‘what the

131 132 133 134 135

Ibid: 20. Ibid. See further, ibid: 21. Ibid: 23. See Benveniste, 1971; as quoted in Agamben, 1991b: 23–4.

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logico-grammarians of the Middle Ages only intuited (in the idea of the centrality of the actus loquentis and of the prolatio vocis for the significance of the pronoun) is here clearly formulated.’136 Thus, contrary to the convention of Western metaphysics, the shifting articulation in question is not from the non-linguistic to the linguistic, but from langue to parole; and as such it is not ‘simply an unnamed object’ that is demonstrated but the very taking place of discourse, the place of language.137 ‘That language takes place’ refers to an event prior to what is said or meant, which is intimately linked to it and forms the condition of possibility of discourse. When for two thousand years the conversion from langue into parole was understood as being (ousia), what was really referred to in contrast to Western metaphysics, was the experience of language, which in every speech act ‘grasps the disclosure of that dimension’.138 Agamben clarifies this further: ‘The transcendent of being and of the world – which medieval logic grasped under the rubric of the transcendentia and which Heidegger identifies as the fundamental structure of being-in-the-world – is the transcendence of the event of language with respect to that which, in this event, is said and signified; and the shifters, which indicate the pure instance of discourse, constitute (as Kant understood perfectly, attributing transcendental status to the I) the originary linguistic structure of transcendence.139 In Aristotle’s definition of ‘man as the animal that has the faculty of language’, the animal voice of man is erased (a removal which makes a sub-ject) for the human faculty of speech to take place in speech. What is presupposed in the understanding of human speech is the erosion or shifting of an animal voice. That is, overcoming an animal state (the erosion of an animal voice) is necessary for the ‘man’ of discourse to become a rational animal and claim for itself another Voice. Agamben suggests that the whole of the metaphysical tradition is based on the presupposition of a mere voice (an animal or natural voice) that is displaced by another Voice (reason, discourse) and which becomes the presupposed place of the negativity of the human being in language. In Heidegger’s conception, by ‘always-already’ being thrown (and having a mood) Da-sein cannot master its own birth to ‘presence’: ‘It can never be its Da (the pure instance, the pure event of language) without discovering that

136 137 138 139

1991: 24–5. Ibid: 25. Ibid. Ibid: 26.

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it is always already thrown and consigned to discourse.’140 What Heidegger attempts to show is his difference from Aristotle’s definition of man, in that human language is not the voice of merely living humanity or some animal echo that transforms through time. Language, for Da-sein, is rather in its Da, which is essentially without a voice, a non-place.141 This non-place that does not entail a voice of humanity, is for Heidegger a no-thing: a silence (sige). This is evident in Being and Time in the call of conscience that calls by saying nothing. In being called Da-sein is structured by a double negativity.142 The Voice of discourse takes place, then, in Heidegger, through a double negativization, in the echo voice of the call (of conscience) that says nothing. Discourse forms through a sigetic transcendental echo. Hence, for Agamben, the presupposition of a mere voice remains in Heidegger, albeit as a silent one: a nothingness that nothings. In Agamben’s interpretation the ‘ineffable’ or ‘unspeakable’ in language is guarded by being spoken, guarded in the very heart of the word, as the event of taking place of language: the limit of language always falls within language. Hence, the problem of (metaphysical) negativity is shown to be the very heart of the problem as to indicating the taking place of language, which through the history of thought has been indicated as transcendental; or when it was finally included in the heart of the word (in Hegel) it is indicated in the manner of an ineffability as the still mysterious or sacred shadow of the said. In this sense, this problem is inseparable from the problem of ‘the voice’ (the voice of the presupposed speaker) and its relation to discourse, to what is said. Agamben writes: ‘For Heidegger, as for Hegel, negativity enters into man because man has to be this taking place, he wants to seize the event of language.’143 For both, the utterance as much as the instance of discourse are only identifiable and indicated through the voice that speaks them, that is through the presupposition of the speaker as a voice. The notion of the voice constitutes, thus, the fundamental ontological and linguistic dimension wherein the function of the shifters is situated. This problem was established in late antiquity in Aristotle’s legomena (the possibilities of speaking), which: could in fact be considered in itself as pure voice: not simple, however, as mere sound (vox inarticulata) or within a determined field of meaning (vox as signifying term), but as the bearer of some unknown meaning. [. . .] as a pure intention to signify.144 140 141 142 143 144

Ibid: 56 See ibid: 57. Ibid: 59. Ibid: 31. Ibid: 33.

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Between sound and signification, in Western metaphysics, a no man’s land, a threshold, is presupposed as a pure intention to signify, indicating ‘the pure taking place of an instance of discourse without any determinate accession of meaning’.145 The concept of ‘an animal voice’ (mere sound) in the formulation of the ‘animal that speaks’ is, in this sense, insufficient to indicate the instance of discourse as such. Agamben writes: The voice, the animal pho¯ ne¯ , is indeed presupposed by the shifters, but as that which must necessarily be removed in order for meaningful discourse to take place. The taking place of language between the removal of the voice and the event of meaning is the other Voice whose ontological dimension we also saw emerging in medieval thought and that, in the metaphysical tradition, constitutes the originary articulation (the arthron) of human language. But inasmuch as this Voice (which we now capitalize to distinguish it from the voice as mere sound) enjoys the status of a no-longer (voice) and of a not-yet (meaning), it necessarily constitutes a negative dimension. It is ground, but in the sense that it goes to the ground and disappears in order for being and language to take place.146 The articulation of the human voice in language is, thus, a pure negativity. The split between signification and demonstration as much as the scission between transcendence and existence or presence is only made possible if marked by the presupposition of a pure negativity, a Voice, which discloses the place of language as as a no-longer (voice, animal voice, sound) and as a not-yet (meaningful discourse). In this way, the problematic presupposition of a Voice discloses the taking place of language, but consigns to it the time of its taking place (a particular understanding of time), its incessant present that forms in a series of instances of discourse between a no-longer and a notyet.147 As such the Voice is, for Agamben, chronothetic in disclosing both being and time through a negative pseudo-dialectic. Western ontology rests on the mysterious power of a nothingness, a nullity, a pure nothing, a silence that defines being (and time) on a negative dimension. Every shifter in Western metaphysical reflection, for Agamben, is structured like a Voice and is defined through a double negativity. Language is always conceived as being and at the same time as not being the ‘voice of man’ and ‘man’ is consigned to originate first in the threshold between nothingness and language (discourse). This presupposition of a pure nothing as a silent and ineffable voice is the originary and supreme shifter which permits

145 Ibid: 34. 146 Ibid: 33. 147 For Agamben’s critique of this understanding of time see Chapter 6.

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thought ‘to experience the taking place of language and to ground, with it, the dimension of being in its difference with respect to the entity’.148 The passage between physis and logos or nature and culture, the supreme problem of Western culture, rests on this double negativity (of a no longer and a not yet) of an originary shifter posed as a Voice: the human means of having language rests, in this sense, on a mystical foundation (Voice, negativity). The removal of mere life, pure or bare life in the figure of homo sacer finds here its originary structure of negativity in the negative foundation of human being and time in language that is marked by the presupposed difference in Western culture between nature and culture, essence and existence. The Voice of humanity or human being in so-called qualified life is then marked itself between a no longer (bare life) and a not yet (fully human). In turn it can be said that Western metaphysics rests on such an act of removal (of mere sound or mere life) and it is grounded thus on a sacrificial mythologeme. Today, when the triumph of nihilism (which makes nothingness as its final foundation) coincides with the spectacularization of the lack of foundations (the void) as a foundation: as the ultimate ground of sovereign power and government. If, for instance, law (in its pure form: law as selffounding) is experienced through this spectacularization as founded on the removal of its constituent power for its representation in constituted power, this is only possible if the presupposition of the negative foundation of law in a Law of law that forms its condition of possibility is further silenced as an act, continuing (rather than disrupting, ‘secularizing’, ‘liberating’) a long tradition in Western culture that incessantly prepares and protects an empty throne: a Law in force without significance. That this logic or structure has a sacrificial character is particularly illuminating. Agamben writes: The fact that man, the animal possessing language, is, as such, ungrounded, the fact that he has no foundation except in his own action (in his own violence), is such an ancient truth that it constitutes the basis for the oldest religious practice of humanity: sacrifice.149 And he continues: Every facere is sacrum facere. At the centre of the sacrifice is simply a determinate action that, as such, is separated and marked by exclusion; in this way it becomes sacer and is invested with a series of prohibitions and virtual prescriptions. Forbidden action, marked by sacredness, is not, however, simply excluded; rather it is now only accessible for

148 1991: 84–5. 149 Ibid: 105.

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certain people and according to determinate rules. In this way, it furnishes society and its ungrounded legislation with the fiction of a beginning: that which is excluded from the community is founded, and it is assumed by the society as an immemorial, and yet memorable past. Every beginning is, in truth, an initiation, every condition is an abs-conditum.150 The speech act in the form of an oath founds the scission and relation between word and thing, as much as between divine sovereign language and human oikonomic language, rests on a sacrificial rite of initiation and forms another example of the attempt to found the unfounded (law, obligation, code etc.) through the fiction of a beginning in time immemorial. Through such a sacrificial ritual the abandonment of mere or bare life (homo sacer) is produced through an inclusive-exclusion in the polis, which is grounded metaphysically in the Western mythologeme of the ‘animal that has speech’. Within such a sacrificial initiation: An action (a sacrum facere) is abandoned to itself and thus becomes the foundation for all legal behaviour; the action is that which remaining unspeakable (arrheton) and untransmissible in every action and in all human language, destines man to community and to tradition.151 The mythologeme of removing of a supposed natural (but non-apparent) ground by a human action must at the same time construct its own habitual plane through a sacrum facere (through violence), to conceal this removal as an act, and in this disguise to ground and to regulate not only the content and limits of this habitual plane or polis, but also the means (violence) that can exercise or have power within it. Therefore human violence (the sacrificial mythologemes of foundations) is grounded through the presupposition of a scission or pseudo-bipolarity between nature and culture, removing each time from its archival memory the historical fact of being ‘a product of man’. Sacrificial violence is by no means an original biological fact or inevitable, but instead something that needs to be justified through another act. What sacrificial initiation, oath-taking, the production of homines sacri, the erection of the mythologemes of the ‘Law of law’ or the ‘Power of power’ and so forth presuppose is the negative characterization of the fact that human being is ungrounded (has no essence) which, however, must at all costs be concealed in a negative ground. A negative ground, as opposed to accepting human

150 Ibid. 151 Ibid.

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ungroundedness as a fact and offering a positive definition of human being which remains entirely possible and in need of thought. Such (un)groundedness-in-denial is filled with guilt, with an unspeakable transmission of negativity that grounds and at the same time betrays what is understood in Western culture as tradition – a tradition that in the guise of sacrificial practice denies its own status as law-making.152 The possibility of rendering such foundations inoperative lies in a different positive understanding (and ontology) of the human experience of language.

152 See Agamben, 1999b: 104–15.

Chapter 6

The experience of potentiality

Introductory note While no extended archaeology of legal foundations is purported in this work, it is argued that the structural form of legal foundations (the alleged meta-reference of law) is not just an apparatus of power that conceals the making, of legal foundations, but is more generally the problematic limit concept of old-European jurisprudence and legal theory. If a limit concept always separates two realms or things, the test of its truth lies in whether it shows a real separation between two different things. Every attempt to critique or redefine the structure of the foundation of law resorts, whether consciously or not, to redraw the boundary line between two powers (i.e. constitutive and constituted power), yet obliterates the obvious attempt, each time, to collapse one power into another. The task of proper criticism takes the obvious as its heaviest burden and this task can neither be complicit in such pseudo-opposition and celebrate the foundational lineage of legal mythological constructions, nor reactively critique such foundations and its laws in order to progressively improve, correct or perfect the laws in question, without ever challenging or cognizing the problematic structure that produces such foundations in the first place. The task, if it is one, of criticism (understood as thought) with regard to the tradition of law is to eliminate the structure of the fundamental partitioning that is each time presupposed in the act of encountering the manner in which the limit of law and of power has been founded; and to expose it as a mythologeme, as an apparatus of law and power. In this sense, criticism does not refer here to a critique of law ‘in general’ (which would be meaningless) or to a critique of a particular legal issue (which is not the object of this theoretical work), but to the critique of the limit concept of legal foundations (the ever-recurring negative definition of law and of power). Criticism, as conceived in this work, does not aim at the destruction of law as such, but at the exposition of the negative partitioning that such foundational mythologemes serve to project and to protect. This task is not set as a mere theoretical endeavour, however, but as assaulting two

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intertwined things: on the one hand, the particular understanding of power and of law-making that such mythologemes promote and on the other hand, the particular forms of subjectivity, the making of subjectivity, that they institute. In other words, through exposing the mythological fiction of law’s foundation, the law is not to become unlimited or immune to its failures, but rather historically and thoughtfully conscious. Criticism, in turn, is not to advance a new idea of ‘freedom from law’, some radical politics or ethics or even a new theory of ‘autonomy’ (self-foundation), but is rather to encounter the properly authentic (as opposed to pseudo-dialectical) ontological limit of law which can be, provisionally, called ‘justice’. Before this book turns to criticism and to justice in more detail, however, further elaboration is necessary as to Agamben’s philosophical thought that provides the logic of this work. It has been suggested earlier that the fact that such partitioning, in its various transformations as to law (in the form of a ‘Law of law’), power (‘Power of power’, or absolute and ordinary power), religion (God and oikonomia), politics (constitutive and constituted power) and life (bare and qualified life), finds its exemplary form of pseudo-fracture in the Western understanding of language (name and discourse) and, hence, to examine this understanding of ‘language’ is essential to the proper understanding of the ‘fundamental’ problem of Western thought: how to depose the understanding of power that is enslaved to its ‘fundamental’ pseudo paradoxes and think of the experience of human potentiality or power in a different manner?

Difficult being: thinking the thing-itself or on being without presupposition It is crucial to revisit once more the problem in question in its linguistic emergence and to reach the limit where linguistic reflection leaps, for the purposes of this work, to philosophical reflection. Only philosophical reflection, itself, in turn, will need to encounter its own limit (named in philosophy as the problem of the Absolute), at which point it always seems to leap to theology. The appreciation of the limit of language, its pure taking place – without a nature or a substance to rely upon is tightly linked to the birth of Western metaphysical thought through Plato. Such metaphysical thought, it is suggested here, informs the enigma of all foundational mythologemes in various forms (and ‘disciplines’) henceforth. The problem of the foundation is, in this sense, the problem of presupposition (where language is thought ‘as’ subject to something else and the subject of language is conceived ‘as’ subject in itself ). But as subject to what? Plato elucidates of such subjectivity or subjection (hypostasis, hypokeimenon) as that of the presupposition or quest for the so-called holy grail of philosophy: the thing-itself. Through the paradoxical

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reference to a thing-in-itself, linguistic reflection (and philosophical discourse) has shown in a number of different forms its embarrassment before the fact that its ontological presupposition always stumbles before an absolute thing-itself, which it can either show, but not think (as in the case of linguistics), or which it can think, but not show (as in the case of philosophy). Law’s condition, in this sense, is the most extreme: it will neither show it, nor think it. In this paradoxical experience or postponement of the arrival before the thing-itself, what is implied each time is a participation in an unparticipated (or a presupposition of an unpresupposable) and through it is shown the essential link between linguistic inquiry, philosophical analysis, jurisprudence (in a wider sense) and theological discourse (as evidenced, for instance, in the consideration of the form of the oath in the previous chapter). It has already been indicated that the so-called paradox of foundations is that for a foundation to be a proper foundation, it must absolutely presuppose nothing else but itself. If a foundation were to presuppose something else in order for it to be a foundation, then it would cease to be absolute and it would need to acknowledge the pre-existence of another thing. The problem of a foundation, thus, is that it must refer to nothing but itself; it must form and be bound to itself, to its ‘own’. The problem with foundationalist attempts has been shown, for instance, with regard to the founding moment and ou-topos (non-place or outside) of sovereignty in the state of exception. The state of exception purportes to be, in Schmitt, an absolute foundation of law must relate-and-not-relate to law. This is why Schmitt must resort to the foundation being a paradoxical act, a decision that ‘takes out’ at the same time as it ‘captures within’. As it has been argued, however, this remains a pseudo-paradox. Counter attempts to Schmitt’s follow the same paradoxical formula of a foundation that fails to be absolute because it refers to something else (even if that ‘other’ is of its very own making or fictioning). At the same time it must silence its foundation in something else and separate it to an immemorial topos and chronos, rendering it as something unpresupposable (hence the essential problem with the formulae of the ‘Law of law’ and the ‘Power of power’ when they are reformed by critics). In Schmitt the sovereign’s decision on the state of exception is not just the sovereign’s decision, but also the decision of the exception ‘as such’. This is the condition of the contemporary when at the end of all foundations there still lies posited a negative relation to an unfounded, an unparticipated, even if this ‘thing’ is unthinkable, silent or simply ‘nothing’. ‘No foundation to support authority’, the characteristic expression of contemporary nihilism, is yet the negative presupposition of the nothing as a final frontier, the final veil, the final meta-foundation that posits and cancels, at the same time, any proposed foundation. In this sense, the failure (and celebration) of each and every foundation is measured according to its claim to have named the thing-itself (nature, God, matter, life,

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law etc.) as its own, in order to place is as an invisible no-thing. Yet, no thing other than the thing-itself has proven so slippery. For a foundation to be a foundation it must be founded absolutely on the thing-itself, it must be able (power) to be in communion with the thing-itself, and this, in the history of foundations and claims to absolute origins, has proven to be a very tricky and pseudo-dialectical thing indeed. It is instructive at this point to briefly refer to what Plato thought, when he tried to answer the question: what is the thing of thinking, the thingitself (to pragma kat’auto)? It is well known that commentary on the Platonic theory of the Ideas has established the view that such a theory of Ideas remains within the realm of the esoteric, or even the mystical, as a claim to a transcendence that is to remain forever impossible, unsayable and unparticipated. Agamben shows in his piece titled ‘The Thing Itself ’, the falsity of this dominant view.1 The phrase to pragma auto (the thing itself ) appears in the previously discredited Seventh Letter of Plato whose importance is crucial. The notion of ‘the thing itself ’ has since then attained such a fundamental importance for Western philosophical thought that it survives two thousand years later in Kant, Hegel, Husserl, Heidegger and beyond. The passage of the letter, where the thing-itself is expressed, is the following: Each being has three things which are the necessary means by which knowledge of that being is acquired; the knowledge itself is a fourth thing; and as a fifth one must posit the thing itself, which is knowable and truly is. First of these comes the name [onoma]; second, the definition [logos]; third, the image [eido¯ lon]; fourth, the knowledge.2 The conventional interpretation of the thing-itself as an esoteric unsayability that lies beyond language and transcends language is, in light of this passage, to be reconsidered. The famous fifth thing (the thing itself ) cannot be grasped, according to Plato, if the first four are not grasped first. This means that in Plato the theory of the Ideas is closely linked to language. The search for the Ideas is a search in language. It must be accepted, then, that the thingitself in Plato may transcend language in a certain way and yet it is ‘possible only in language and by virtue of language: precisely the thing of language. [. . .] it is not sayable in the same way as other disciplines, but it is not for that reason simply unsayable’.3 The first four terms (name, the signifier; logos, defining discourse, signified or virtual reference; image; indicating the sensible

1 1999b: 27–38. 2 As quoted in ibid: 29. 3 Ibid: 31.

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object, denotation or actual reference; and knowledge; achieved through them) have defined to this date the Western reflection on language. In this sense, Plato’s theory is a theory of linguistic signification in its relation to language. What of the fifth term? Agamben corrects the conventional interpretation (that presents the Idea or the thing-itself as a kind of useless duplicate of the thing denoted ending up in a circular reference) by clarifying the expression ‘the thing-itself, which is knowable and truly is’ and rendering it as ‘the thing itself, by which [each being] is knowable and truly is’.4 If understood as that by which each being is knowable and is, then the thing itself can not be posed any longer as what is simply presupposed in linguistic signification (and in the epistemological process that depends on it), but rather as that by which the object is known, its very own knowability and truth being at stake. The earlier understanding (and translations) are not simply erroneous, Agamben quickly adds, but perhaps aimed to emphasize that the thing-itself is not to be understood as a presupposed and substantialized ‘other thing’ or as a mere ‘duplicate of a thing before or beyond the thing’. The thing itself is instead the thing itself, not as presupposed by discourse and the name as a hypokeimenon (as subject), ‘but rather in the very medium of its knowability, in the pure light of its self-manifestation and announcement to consciousness’.5 If language is necessarily presuppositional it is because logos’ weakness (astheneia), according to Plato, is not capable of expressing this knowability and sameness. Instead, our language partitions the thing itself into two ‘things’: a being or thing about which one speaks and a quality and a determination that one says of it. Language as well as what is said through it are supposed as subject (hypo-keimenon, what lies beneath the text), as a hypo-thesis (what lies beneath language). Aristotle’s famous distinction between sense and reference through the phrase ‘legein ti kata tinos’ (saying something on or about something) is the paradigmatic form of this very pre-supposition. However, Plato’s concern is, as Agamben explains, how it is possible to speak not by means of a presupposition, but absolutely (that is, without presupposition). Can language say what the name has named? This is the paradox in question. Is not every attempt to say what the name has named a betrayal of the very ‘weakness of language’ that Plato speaks of ? This is only so if the thing-itself is understood as a hypothesis of language, as another thing, and yet this is precisely what Plato refutes. Agamben writes:

4 See ibid: 32. 5 Ibid: 33.

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The thing itself is not a quid that might be sought as an extreme hypothesis beyond all hypotheses, as a final and absolute subject beyond all hypotheses, as a final and absolute subject beyond all subjects, horribly or beautifully unreachable in its obscurity. We can, in truth, conceive of such a non-linguistic thing only in language, through the idea of a language without relation to things. [. . .] The thing itself is not a thing; it is the very sayability, the very openness at issue in language, which, in language, we always presuppose and forget, perhaps because it is at bottom its own oblivion and abandonment.6 It is the effacement of the thing itself that has formed the sole foundation for a tradition to be constituted. It is this misperceived paradox that delineates the nature of foundations as both present and absent, as in two presences and two bodies. Before the thing-itself language and linguistic reflection reach their limit concept. At this limit the presuppositional power of language touches its end and reaches the ‘unpresupposed’ or ‘unpresupposable’ principle of which Plato speaks as arche¯ anypothetos that, as such, constitutes authentic human community and communication (and thus authenticity lies irreparably in the inauthentic). This limit, this end that is touched by language is the place of the Ideas. This is repeated and opposed by Aristotle who replaces the thing-itself with the first substance (prote ousia) ‘which is neither about a subject nor in a subject’.7 The first substance is upresupposable and ineffable and can only be expressed in language if it abandons its status as deixis (that) and becomes universal predication (that about which something is said and what is said, referring to the same thing) and this is possible only through the elimination, the silencing of the thing-itself. The thing-itself is conserved only through its removal, representing the inaugural example of the formula of the state of exception operating in the structuration of language. This is why the letter (gramma), which from the Stoics to Derrida forms the root of linguistic reflection and philosophical deconstruction, attains the privileged status of being an index sui, a self-demonstration of the ‘being or thing that was’ so that thought can, henceforth, put the past to the past, and become writing, ‘without having to reckon with the thing itself and without betraying its own presupposition’.8 The unpresupposable of language in language, which in theology takes the name of the divine Logos, is not a proposition that bears meaning through letters, but rather ‘the pure event of language before or beyond all particular meaning’.9 When in theology the word of God is understood as the absolute 6 7 8 9

Ibid: 35. As quoted in ibid: 37. Ibid: 38. Ibid: 41–2.

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name of God, whose voice withdraws and whose echo remains, but which has no significance, it is to this absolute, unpresupposable foundation that attention is drawn, and it is in the word of Christ, the theological gramma as God’s hypostasis which renders the faithful as much as faith as subject to an oikonomia (the theological grammar of the Trinitarian dogma). The mystery that was attached to the term of oikonomia referred to this very dimension of theological revelation and it is precisely at this point that philosophy can be seen in its close tie with theology (Aristotle, in fact, calls first philosophy the philosophy of the foundation, of the arche¯ , as theologike¯ ). What is at stake is expressed by Agamben in the following passage from ‘The Idea of Language’: But if the foundation is unsayable and irreducible, if it always already anticipates speaking beings, throwing them into history and epochal destiny, then a thought that records and shelters this presupposition seems ethically equivalent to one that fully experiences the violence and bottomlessness of its own destiny.10 Does not contemporary thought silence the paradox in question by insisting on language being always-already trace and infinite self-transcendence (Derrida)? Have not faith and reason, ironically, abolished their boundaries, rendering the incomprehensible as reason’s very own fleeting presupposition? Is it not the philosophical task to eliminate all presuppositions? If contemporary thought has reached its own limit beyond which no new historical destiny and no new figure of the divine can lift itself out of language, then language reveals its absolute anonymity (its lack of an essence or a nature). If ‘God’ was the name of human language’s foundation, then ‘God is dead’ can only point to the lack of a meta-language (a name for language). Agamben writes: Thus, we finally find ourselves alone with our words; for the first time we are truly alone with language, abandoned without any final foundation. This is the Copernican revolution that the thought of our time inherits from nihilism: we are the first human beings who have become completely conscious of language. For the first time, what preceding generations called God, Being, spirit, unconscious appear to us as what they are names for language.11 Human beings are condemned, abandoned, to misunderstand each other in language. But the crucial task of thought is to show the limit of such an

10 Ibid: 44. 11 Ibid: 45.

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experience; to show the limit of understanding as the vision of language itself, as its Idea. Agamben concludes: Language, which for human beings mediates all things and all knowledge, is itself immediate. Nothing immediate can be reached by speaking beings – nothing, that is, except language itself, mediation itself. For human beings, such an immediate mediation constitutes the sole possibility of reaching a principle freed of every presupposition, including self-presupposition.12 What unites human beings among themselves is only the Idea of language, the vision of language, the experience of language’s limits. The task of philosophy and of criticism cannot be merely the presentation of this or that idea or concept, but above all the presentation of the Idea of language. Human beings have no-thing in common (no common substance, nature, being) other than their communicability (their vision in language of the vision of language), their common power. While the powerful of this world can always pretend to acquire their authority or foundational power from the silencing of a ‘foundation’, their weakness will be shown, each time, when the Idea of language is understood as the thing of language through which the thing of consciousness and political and social praxis will be returned to its coincidence with common use. The free use of the common is the hardest thing. Law, institutions and ethics are possible not because they are naturally necessary or because they can claim to have foundations in a metainstitutional or meta-ethical or meta-legal realm, but because there are no such ‘essential’ foundations. As such their necessity is necessarily contingent and contingently necessary. But a law or a power that has no recourse to a transcendental foundation or paradox is a law or a power exposed. The subjects of such a law and power are exposed themselves in the pure potentiality of their communicability (that is, in their difficult freedom). Law in this sense, for instance, is to be thought as an act upon another act; and an act, here, is one which can be rendered accountable and comparable to other possibilities without reference to any meta-legal yardstick. That this may render legal judgment difficult or indeed, at times, impossible, is a condition of legal judgment that lies largely forgotten. That it renders philosophical judgment impossible by definition is a consequence of its logic. An act, that is, which will not be able to refer its authority to some essentialist determination (that supposedly pre-exists it and whose so-called meta-legal or meta-physical domain it would itself regulate and render inaccessible).

12 Ibid: 47.

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‘Language’ uncoupled from quotation marks How to think and show this experience of language in language? The enduring subject of the Western philosophical tradition is the intertwining of thought and language which, in Hegel and in Heidegger finds its most crucial modern formulations. Agamben in his ‘Philosophy and Linguistics’ begins his analysis of this intertwining by reference to Alexandre Kojève’s famous saying that philosophy is the discourse ‘that can speak of everything, on the condition that it also speak of the fact that it does so’.13 A lot of the naïve but common misunderstandings or ridicule of philosophical texts finds, whether knowingly or unknowingly, its proper philosophical explanation in this saying (philosophy’s experience is contained in the reflection, if it is a reflection of the fact that it speaks, which is frequently characterized as the root of its tediousness, self-indulgence, disconnectedness with the ‘real’ world, as apolitical and so forth.) All these accusations may of course be true on occasion, but if they are, this is not because of the reasons that are commonly presumed. The inquiry into the separation of the so-called ‘real’ and the ‘theoretical’, of the material and the spiritual is precisely what is at stake for philosophy. Everything depends on how one conceives the term ‘language’. In a work of the French linguist Jean-Claude Milner entitled Introduction à une science du langage,14 to which Agamben refers in some detail, the term language is investigated with regard to the various uses of the term. To describe the fact of language in its uses, Milner separates schematically four ‘primitive facts’ that function as ‘irreducible limits, which linguistics must confront and beyond which it cannot venture’.15 They are: 1

2

3 4

the Factum loquendi: its content is the existence of language – the fact that there are speaking beings, which forms the axiom of linguistics, rather than its reflected object; the Factum linguae: the fact that speaking beings speak languages, which requires linguistics to distinguish between language and non-language as well as between one language and another; the Factum grammaticae: languages are described in terms of their particular properties in relation to non-language and other languages; the Factum linguarum: languages are diverse while belonging to a homogeneous class.

This schematization succeeds in referring to the four main dimensions of language with great precision. It is through consideration of these factums

13 As quoted in ibid: 63. 14 1989. See also Milner, 1983 and 1978. 15 As quoted in Agamben, 1999b: 66.

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that Agamben posits the difference between linguistics and philosophy. Linguistics takes as its object ‘language’ in the sense of the factum linguae, the factum linguarum and the factum grammaticae. Philosophy, in contrast, takes as its object, if it is an object, the factum loquendi and its task becomes to expose it, rather than merely presuppose it. Philosophy’s aim is to become conscious of the ‘meaning of the fact that human beings speak’ insofar as they speak. For philosophy the factum loquendi refers to the pure existence of language, which can be thought only insofar as it is posed as independent of real properties (qualities and grammatical reflections) and as transcendental proper, at the limit of both philosophy and linguistics. At this limit philosophical thought cannot place any origin, essence, foundation, substance or nature other than pure existence. Each time thought attempts to place a foundation in this plane of pure existence, it is bound to fail and resort to a new absolute foundation or grammar. Philosophy, or first philosophy, ‘can only remain faithful to its originary vocation as the science of pure existence’ if it contemplates beings insofar as they exist, independent of their real properties (this is why philosophy thinks not subjects, but singularities). When philosophy attempts to presuppose a passage between a pre-linguistic state and a linguistic state of beings, or between the propositions ‘language does not exist’ and ‘language exists’, it is bound to lead to a new fictional grammar of foundation. Agamben notes the complexity of the philosophical condition in that ‘philosophy can only assert its proper vocation as a science of pure existence through a particular experience of language’ (through thinking the factum loquendi).16 Philosophy and linguistics have no external observation post: they can name an object (onoma), speak of it (logos), but they can never name what the name has named (assertion). As was suggested earlier, shifters or deictic pronouns signify, in philosophy and in linguistics, a pure existence without particular qualities, but do so in a necessarily indirect way. Properly understood transcendental existence or pure existence is a philosophical discovery made possible not in contrast to, but because of the fact that any meta-language is impossible. Hence, transcendence can only have meaning as shown in language and of language. The key question is how to conceive of such a transcendental experience in language without recourse to a vulgar or mystical ineffability (the forms of presupposition in philosophy and linguistics), but instead as an exposition to the unconcealment that language is. Pure existence or pure being cannot refer to a non-linguistic being (as is often assumed), since language’s naming power ‘knows no limits’ and ‘the non-linguistic, in this sense, is nothing other than a presupposition of language’.17 Pure linguistic existence (being-so-

16 Ibid: 68. 17 Ibid: 71.

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called, the taking place of being-said) presumes, by necessity, that existence is not a real property or a quality of a being. Thus, it can be suggested that the being of the being-said forms the archi-transcendental (that is presupposed by the other transcendentals in the history of philosophy: unum, verum, bonum – one, true, good ), which allows for the possibility of all predication. Language ‘cannot name itself as naming; the only thing for which names are truly lacking is the name’.18 The term ‘language’ refers to the factum loquendi (neither a general predisposition to language, nor a particular quality of a being): ‘That there is language, that human beings speak, is not a real property that could be determined as a universal grammar in which all language would participate.’19 Every time an attempt is made to grasp in thought the factum loquendi in order to make it into a ground, a foundation or a common property (a universal), such thought is always about to become a type of grammar. What escapes the technique of grammar is not Nature, God, Law, an archMorality and so forth, but the factum loquendi to the extent that it remains unthought. If any attempt to think the factum loquendi is in this sense illegitimate, then how can Agamben’s attempt to bear witness to its factum escape this embarrassing difficulty? The first hypothesis here is that language is the condition of all knowledge (of all science), of all learning and all grammar. The second hypothesis is that language, to be thought scientifically, that is, through knowledge, must possess some recognizable properties. The third hypothesis is that it is only because language presupposes the factum loquendi that knowledge can presuppose ‘the existence of something that, in turn, underlies the objects whose properties [it] describes’.20 These hypotheses require one to consider how the science of language itself is marked by the factum loquendi. For Agamben this can no longer be thought in relation to the form of a presupposition, but only as an exposition (that is, not as a relation). If the plane of the factum loquendi is a proper transcendental that can yet be experienced in language, then it cannot be named as this or that, but only shown. The conventional manner of thinking the factum loquendi has been to form it in relation to a past, to a has been, forming, in turn, along the principle of conditioned necessity: something is and if so it could not be otherwise than it is. This form of thinking the factum loquendi always assigns pure existence to a past, which the literalization or grammar of knowledge must relate to only in the manner of an ineffable lack. Instead, to expose the factum loquendi means to think not the conditioned necessity of this or that tradition, but to consider instead the arch-traditum, the thing of thinking,

18 Ibid. 19 Ibid: 73. 20 Ibid: 74.

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which can only be shown as an excess of language in language rather than thought in relation to recognizable properties or even through a negative relation to an ineffability. The unthought or non-being is not to be consigned to a lack, an ineffability, or as the arch-presupposition of a negative definition of being, but instead as its very affirmative and exposed condition of possibility. Transcendence cannot any longer be thought as a reference to the real non-linguistic thing, to an absolute truth (before which knowledge or faith have to kneel), to a hierarchically prior stratum of being, but as an unfinished, continuous, unthematized communicability: the pure potentiality of pure existence. The factum of communicability is not something to which beings, things, presuppositions relate, as in the form of a passage ‘from nature to culture’, ‘from an unparticipated (transcendent) to a participated realm’, but as in the form of immanent and continuous participation in an excess. The excess of communicability or transmissibility is what is at stake in all discourse and while every saying will necessarily conceal this ‘ability’ in whatever it brings to light, it is criticism’s task to point each time to the factum of unconcealment that language is. Such a factum of excess cannot be merely subjective or merely objective and it can never form the basis of a public doctrine, of a universal state patrimony, of a ‘Law of law’, or of an ‘originary’ ethics. The paradoxical conditioning of knowledge entails at its core the partition or scission between how a thing is and what a thing is. Such a partition within knowledge and language destines thought and discourse to the dialectic of oblivion and remembrance, nature and culture, the how and the what. Each time tempting thought to find a secret path that would lead to a safe passage between the two and that would bring them to their absolution in unity before a glorious thing-itself. This is the very same problem that the Church Fathers elaborated upon through the Trinitarian dogma, which was comprised of name (Father), logos (Son) and their spiritual relation (Spirit). In this sense the various attempts to found language’s autonomy or sovereignty (whether through explicit on inexplicit onto-theological paths) can be explained better if understood as the negative presuppositions of their messengers, the oikonomoi, whose interest lies in the grammar and regulation (an oikonomia) of pure being, which is, above all, the capture of being-as-such (its power or potentiality) and its exhaustion in actuality. Such autonomy maintains itself in relation to a dark presupposition (whose concealed origin lies in the lack of an essence of language or of human being). True autonomy can never be (as Hegel has shown) the mere autonomy or identity of self-consciousness, because it must also presuppose the self-movement of truth as such (albeit to reach a caesura of everlasting crisis).21

21 See ibid: 110–11.

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This is the structure of negativity that permeates all Western thought: the presupposition of an unparticipated ‘that destines and historically produces us as parts, im-parting us in its incessant participation [. . .]’.22 Such a destining means always undergoing the remission and betrayal of an unsayable and unassumable transmission (where nothing and no one can be located as its author). Being always bound to the knot of lack, as always-already subject to a tragic partition and negative presupposition, Agamben opposes the search for a way in which to think the absolute, the thing itself, the Good, the One. (In other words transcendence) without presupposing its destining partition, that is, without reliance on the form of a presupposition. Today’s epochal somnambulant nihilism aims to maintain at all costs this presupposition of partition; to maintain even at its best intellectual moments (Blanchot, Nancy) the empty form of the presupposition beyond all foundations – presupposition of nothing, pure destination.23 In the same way in which self-consciousness always-already implies the possibility of ever further division; the maintenance of an unconscious ‘Nothing’ as the pure form of presupposition implies the possibility of a division between further degrees of separation (and ironically degrees of nothingness): ‘Transcendental reflection imagines there to be, beyond the reciprocal acts of subject and object, an activity of the subject that is independent of it, the “I” as substance – yet here there is an impossibility of thinking.’24

The motive of Agamben’s thought Agamben turns next to the institution of this ‘impossibility’ of thinking (through the placing of a limit on possibility) that numerous principles employ in their understanding of Western modalities. In order for possibility (potentiality) to be thought in a different way, Agamben begins by reconsidering the very notion of transcendence that in Western thought has been conditioned on the dialectic between an essence and its subjects and objects or, in Kant’s supreme formulation on a transcendental apperception or the transcendental ‘I’. In Infancy and History – Essays on the Destruction of Experience, Agamben contemplates the notion of pure existence, philosophy’s peculiar object par excellence, against the structure of presupposition in which Western thought has stipulated it, by rephrasing Wittgenstein’s famous expression of wonderment before the pure existence of the world: ‘The correct expression in language for the miracle of the existence of the world, albeit as expressing nothing within language, is the existence of language

22 Ibid: 112. 23 See Blanchot, 1969 and Nancy, 1983. 24 Agamben quoting Sinclair in Agamben, 1999b: 114.

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itself.’25 Agamben elucidates such wonderment in his answer to the question ‘What is then the correct expression for the existence of language?’ as follows: the only possible answer is human life as e¯ thos, ethical way and this as an answer that has yet to be assumed by humans as such. This suggests that the hardest question of Western philosophy entails not just ontological and metaphysical elements, but also an ethical one (in the sense not of a morality, but of an e¯ thos, a way of life). It is with this in mind that the motive of Agamben’s thought, the central key to his thought, can be properly appreciated. Agamben has proposed the rethinking of language and transcendence with regard to the experience of the limit of language in a direction different to that of the negative definition of being in an animal voice. The presupposition of the ineffable or the unsayable belongs exclusively to human language and far from indicating the limit of language, it is simply the expression of language’s invincible power of presupposition. The experience that is undergone only within language (an experimentum linguae) requires the redefinition of the notion of the transcendental through the elimination of the presupposition of the unsayable. The singularity that language must signify as pure existence is not something ineffable, but something superlatively sayable: it is ‘the thing of language’.26 The power of presupposition always attempts to refer to something that exceeds language and that forms its original referent, always-already attempting to build or sever the link between words and things. The relationship between language and experience is instead, here, to be reconfigured through an experience of language, shown in language where linguistic being encounters its limit (the unlived) as a threshold wherein it is experienced. The concept that Agamben employs to show this experience is infancy. Infancy, contrary to pseudo-self-referentiality, forms the name of the only experience of self-referentiality worthy of its name as that of the existence of language as such hence language’s limit is to be found not outside language in the direction of its supposed referent, but within. What kind of experience is infancy? Agamben begins by delineating what infancy is not: 1

2

Infancy does not refer to a simple given or an age, whose chronological site can be isolated. In addition in-fancy is not the experience of an object or of a signifying proposition as to this or that. Infancy is not, contrary to what may seem at first, a reference to a psychosomatic state (‘which a psychology or a paleoanthropology could construct as a human fact independent of language’).27

25 As quoted in Agamben, 1993a: 9. 26 Ibid: 4. 27 Ibid.

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Infancy is also not an originary moment of aphasia, of ineffability or impossibility.

Instead, infancy is the name for the experience of the pure fact that one speaks, the fact that language exists. In this experience ‘speaking’ and the ‘being-spoken’ (its ‘object’) are not real predicates that can be identified in this or that property of a proposition, but are instead transcendentia, archtranscendentals, which transcend all categories while insisting on each one of them. They form signs to the pure exteriority of language within language, a perfectly empty dimension of pure existence that can be experienced and shown only through an experience in/with language. For philosophers, linguists and theologians this is an experience where names are lacking; there is after all no name for the name. In a Copernican revolution in thought this is not to be mistaken for an experience of foundational silence or as a mere deficiency of names. Instead, infancy is an experience of language whose site and formula can be designated, shown, ‘at least up to a point’.28 ‘Language’ which has been perceived in the West by its double articulation of language and speech resulting in a principle of discontinuity and difference (wherein history and knowledge can be produced) is the result of a negative definition of the pure fact of the existence of language (its transcendence). In effect the human being has been understood as homo sapiens insofar as it is also a homo loquendi, homo sapiens loquendi.29 Human knowledge in Western reflection always-already implies a connectedness between language and speech on the basis of a paradoxical lack. ‘Language’ can never be written in discourse (there is no name for the name) and the presupposition of the lacking human voice (its ‘natural voice’), as suggested earlier, can never be written into language (the gramma, the letter, being only the very form of the presupposing of such a natural fleeting state). Instead, between language (its taking place) and discourse there lies an empty space, a genuine limit, where the human being is cast into language without the vehicle of a natural voice or the existence of a primordial grammar. Human language has no essence that pre-exists and orders it, but only the site of a pure exteriority, a void and an aphonia (being without a natural voice), which assigns humanity to a life without any possible presupposition, without anything that ‘we’ can take a share of, that we can possess. The only content of the arch-transcendental in language, its pure exteriority within, is the factum that there is language, the factum loquendi. Agamben notes: ‘ “we” cannot represent this by the dominant model as a language, as a State or as a patrimony of names and rules which each people

28 Ibid: 6. 29 Ibid: 7.

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transmit from generation to generation (to form the backbone of tradition).’30 Infancy is not merely an impossibility of saying, but the impossibility of speaking on the basis of ‘language’ (of language as substantial ground). Infancy is an experience via the margin or threshold between ’language’ and discourse, which defines the very having of a faculty of speech or power (potentia). Agamben writes: The moat between voice and language (like that between language and discourse, potency and act) can open the space of ethics and the polis precisely because there is no arthros, no articulation between pho¯ ne¯ and logos. The voice has never been written into language (and the gramma as Derrida fortuitously demonstrated) is, but the very form of the presupposing of self and of potency. The space between voice and logos is an empty space, a limit in the Kantian sense. Only because man finds himself cast into language without the vehicle of a voice, and only because the experimentum linguae lures him, grammarless, into that void and that aphonia, do an e¯thos and a community of any kind become possible.31 At the heart of the experience of infancy, the experience of language’s existence no system of representation or reference can sustain itself since there is no presupposition to be taken hold of, not even the self-presupposition that posits, through grammar, language as an autonomous system of selfreference. No primordial tradition, no state identity or patrimony of names and rules, no Law of law can be transmitted from the basis of the threshold of infancy. True community can have no foundation other than in the nonlatency in which ‘men have always dwelt, and in which, speaking, they move and breathe. For all the forty millennia of homo sapiens man has not yet ventured to assume this non-latency, to have the experience of his speaking being.’32 The notion of infancy, briefly presented here, shows that the key to the destruction of the foundational pseudo-bipolarities between language and discourse, absolute and ordinary power, Law and law only comes to proper light as a problem, when considered from within the contours of this experience of infancy. Philosophy as much as religion, law and linguistics, have sought to construct a bridge, a passage, through the mechanism of a presupposition that must never come to light, between pre-history and history, nature and culture, mere humanity and civility. In terms that are central to the inquiry of this work this quest for a passage (and in law for a right to passage as the Right of rights, the right to have rights) silences what it knows could devastate its

30 Ibid: 9. 31 Ibid: 8–9. 32 Ibid: 9.

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purported fundamental construction: the lack of a true foundation is conceived as an empty throne. Hence the resort to an inevitable journey between oblivion and knowledge, impossibility and possibility, ineffability and discourse, the ground and its law. Instead, Agamben posits in this plane the nothingness of a void, which cannot be presupposed as a throne, not even as an empty throne. Everything depends on how such no-thingness is perceived and experienced. The source or foundation of power has proven to be a guarded void, a non-source, a non-foundation, an unthinkable transmission from time immemorial, always grounding itself in a region that can only be thought negatively as a lack, a nothingness, and yet forming a superior and absolute substance, an essence or foundation of power, of law, of religion and of language.

The languages of law and philosophy: humachination Law is complicit through a repetition of this structure in attempting to secure a knot between the absolute occurrence of the foundation from timeimmemorial and its actuality, through the apparatus of the Law of law or the Right of right. Jean-Luc Nancy suggests the narrative milieu of such complicity as taking its form in the notion of right and its historical emergence between what he calls Greek language (Logos) and Roman or Latin language (Right). The inaugural legitimation of philosophy in a juridical manner is the event of the Roman substitution of right for philosophy.33 Jean-Luc Nancy writes: A Latin discourse, the juridical discourse, would therefore be intimately woven into the Greek discourse of metaphysics. [. . .]. Having occurred within the logos as well as outside it, having occurred ‘within’ as ‘outside’, Latin jurisdiction would formulate a discourse other than that of the logos. But Nancy continues: As a substitute, for that of the logos, Latin jurisdiction takes its place and affirms its right: no jus without ratio. It has therefore (always?) been claimed by the logos, and, insofar as this latter must pass into its own history, it is also the logos itself that is enunciated.34 The juridical discourse is a discourse on jurisdiction as well as on jus and in this sense it is to be understood as both a determination of linguistic

33 Nancy, 2003: 152. 34 Ibid: 153–4.

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discourse (the potentia of the factum loquendi) and a discourse on power (in the sense of potestas). Nancy writes: Jurisdiction is the event of saying the right. This saying is inherent in right itself – as, reciprocally, right must be inherent in saying, so long as an element of codification is set in the language, and so long as the statements formed in it must be just, that is, judicious: and that is the logical duty, role and right of ‘saying’ . . . the fundamental entanglement of right with speech (and inevitably, through speech, language) is what constitutes the Latin discourse.35 Implicit, too, in the juridical discourse lies a formulae (in itself a juridical method) of the legal subject or persona. Nancy notes: [The subject of] right is thus the thing whose property is established and circumscribed by the power of the voice (or, more accurately, of the loudhailer, a vocal artifice). This power is itself artificial and theatrical: [the subject of] right establishes itself – or enunciates itself – on a nothingness of being and nature.36 It is in this sense that following the presuppositional model that thinks language as subject, the law thinks of itself as subject to itself. In modern terms this forms as the process of representation or return, that is, the representation in constituted power (law) of the pseudo-presence of constituent power (the founding Law, its ‘living spirit’). The sovereign individual in modernity (the individual subject that is free and autonomous; and the law that co-responds to this condition as selffounding) is made possible on the basis of a pseudo-dialectic that transforms the potential (absolute) power of ‘the People’, of ‘Humanity’ or of the ‘sovereign’ individual to the actuality of the power of the sovereign execution and administration (oikonomia). This is the absolute process of representation in action, thus, a process that exhausts potentiality into its passage to a predetermined actuality; it entrusts (in itself, trust, suggests a politicotheological apparatus) potentiality to the presence of the actual (a presence that must always-already be related negatively to a more ‘fundamental Presence’ – a ‘Law of law’, a ‘Right of right’). Nancy writes that in the production of ‘humanity’ ‘we’ have given this entrusted access the signification of a process (proces) or a progress. ‘We’ were emerging from a loss or blurring of signification, from ‘a moment of

35 Ibid: 154. 36 Ibid: 154–5.

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stammering, of lies or delirium’, from chaos or fate, from ‘an animal or divine condition’, from ‘a cruel or happy absence of laws’ and so on. At that moment, the subject and its disarray emerge all at once: ‘Thus the enterprise of meaning always begins by signifying the anterior or transcendent presence of a meaning that has been lost, forgotten or altered, one that is, by definition, to be recovered, restored, or revived.’37 But in its late modern version the mythologeme suffers its very own delirium: there is nothing to be recovered, but nothingness itself (in the form of modern nihilism). Now the fact ‘that the (always provisional) loss or the (always curable) crisis of meaning are representations that are concurrent, indeed consubstantial with the establishment of the order of signification, confronts us with what might be called the fantasy of signification’.38 This is the problem with the negative structure of oikonomia: the pseudo-phantasmatic ‘original’ transcendental projection or reservoir of ever-colonizable planes and in due process ‘recovery’ of humanity – the modality of an immanent humanity-at-work or humanity-in-progress: the oikonomic operation of anthropogenesis. This is how Agamben expresses it: inoperativity is the metaphysical operator of anthropogenesis, which, liberating the living man from his biological and social destiny, assigns him to that indefinable dimension what we are accustomed to call political [. . .]. Zo ¯ e¯ aio ¯ nios, eternal life, is the name of that inoperative centre of the human, of that political ‘substance’ of the West that the machine of economy and glory seeks incessantly to capture within itself.39 When Heidegger terms this operation as a machination (die Machenschaften der Macht, the machinations of power) capturing every conceivable domain of human being he appears to have in mind something similar. Heidegger in Contributions to Philosophy (From Enowning) terms ‘machination’ the challenging of nature and the rendering of nature as a product. Technology as an instrument of science pursues the challenging forth of nature in such a way that science and technology intertwine.40 But for Agamben Heidegger’s approach appears limited by the fact that while he defines Gestell (enframing) as the essence of technology, as a mode of existence (rather than as a mere means to an end), he does not show the political and oikonomico-ontological nature of such enframing.41 It is such an enframing, a pure orderability that is the heart of the oikonomic ordering or dispositio that Agamben has exposed in his work as the kernel of the bipolar governmental machine that founds the 37 38 39 40 41

1997: 29. Ibid. 2007b: 274. 1989. See Agamben, 2007b: 275–6.

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process of what he calls an anthropogenesis. It is this oikonomic fusion between machination and humanity that I name here as humachination. The problem can be best expressed with regard to the implied understanding of ‘language’ that such anthropogenesis or humachination presupposes. Meaning ‘in general’ is meaning understood as signification. Meaning in the sense of signification (which is the most ordinary sense of the word ‘meaning’ in linguistics and in philosophy) is not exactly or not simply ‘meaning’: it is the presentation of meaning. Hence, signification is that through which ‘concepts are no longer empty and intuitions no longer blind’. In other words, signification realizes the one in the other and the two together. Signification, or the fantasy of universal logos, realizes the becoming-human of an animal being (‘as if ’ emerging from its lacking a natural voice). Nancy writes: Signification is thus the very model of a structure or system that is closed upon itself, or better yet, as closure upon itself. This is the signification of humanism: the reality of man presents itself right in the ideality called ‘man’. And this is the humanism of signification: the ideality of man presents itself right in his sensible reality, that of his works and/or signs.42 The locus of this mediation then is none other than the positioning of the subject ‘as’ subject: it is the subject, capable of presenting the concept and the intuition together, that is, the one through the other. It is through and as a subjection (of the subject or agent of this representation) that the will to presentation constantly makes ‘meaning’ return. That is: the meaningful essence of meaning (l’essence sensee du sens), or signification – in knowledge, history, work, the State, the community, law, ethics, and even in art and faith, because this will is the presupposition of meaning: there must be signification, that is, Ideas must not be empty, and experience must not be chaos.43 This obligatory antecedence governs the very structure or operation of signification; meaning or the signified is, by definition and in whatever mode, present and signification consists in recapturing this presence in its closeness or absence (exception), in presenting it by signifying it. Ontologically the signifier ‘reveals itself by being reduplicated in the representation of the loss or obliteration of the meaning whose crisis precedes and provokes the

42 1991: 23. 43 1997: 24.

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demand for its return (. . .)’.44 For instance, ‘for the Man of humanism, his present and his presentation (his meaning) cannot coincide.’45 The ‘humanity’ of humanism maintains itself both as at-a-distance (an ideal presupposition) and as an actual presence (as a right-here, a present-grounded position of the ideal right). The postulated ideal presupposition of humanism (‘as’ humanity) cannot coincide with the real position of the given human rightt/here, with the effect that the given ‘human right’ can never become the ideal, it can never be fulfilled, and hence it is destined to always fail to return to its ideal destination. This is so even if its supposed destiny is that of attempting to do so (that is its promise or fractured principle of hope). Instead of revealing-exposing this failure of the transcendental human-all-too-human (the scission between the ideal and the real), the circle of presuppositionposition (ground-grounded) returns to itself, to its myth, to yet another transcendental sacrifice of the real in what it presupposes as the ideal form and vice versa. It is no accident that ‘human rights’ are then most ‘affirmed’ as inalienable at the moment of their negation or their being-breached. This does not mean, however, that one should side with an infinitely vanishing line, or absence, since this in itself is caught in the logic of signification, the absolute logic of the return (of meaning). Therefore in Nancy’s understanding signification in no way yields the ‘meaning’ of its own production or of its own advent, ‘which cannot itself be a signification, but the act or movement in which the possibility of meaning arises – which has sometimes been called “signifiance” ’.46 Signifiance, to use Nancy’s term, is what makes signification possible and yet what in the structure of signification (or significtion) must remain unthought at all costs.

The dogma of ends: the absolving absolute In theology the ‘absolute’ refers to the problem of the coincidence of essence and existence in God. In philosophy it takes various names as the thought of thought (Aristotle), the One (Neoplatonists), the displacement of the ‘I’ to the third person of consciousness (Hegel), the purposiveness without purpose (Kant) and so forth. In law this is crucially the juridicopolitical problem of the ‘Law of law’ (which despite its numerous disguises remains the question of juridical metaphysics: the problem of the alleged ‘Law of law’; its transcendentalism). If absolute foundations have suffered their interminable crisis, this has not stopped the continuous attempt to find within law a passage to transcendence. Various names have occupied

44 Ibid: 29. On philosophy as the discourse of signification, see Nancy, 1997: Ch. 7 and 11. 45 See ibid: 34. 46 Ibid: 23.

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previously the arche¯ -position of the Law (of law), but in modernity, following a well-known paradigm, the Law ‘as such’ places itself at the position of the original (it is self-founding). Yet this ‘Law of law’ goes through a certain foundational delirium itself since it appears to lie on the limit between the before (constituent power) and the after (constituted power). In this manner of thinking Peter Fitzpatrick suggests that the origin cannot be shown to have happened or not to have happened.47 Yet if legal systems are indeed obsessed with the ‘story’ (fiction) of their origin(s), so are certain theorists today still obsessed with this story-telling of the original Law (the quest for an essence, even if at the place of the essence of the law they place an undecidability). Such theorists are not self-reflective enough as to their complicity in writing such mythologemes. One is often told that the ‘human’ is produced now by law (an exclusively juridicalized humanity) and that as a result of modernity’s hysteria with the vantage point of ‘humanity’ (as the newly secured ‘Law of law’) such ‘humanity’ can yet only be posed as a pure absence, a nothingness (an absolute universal norm.) Fitzpatrick writes, for instance, ‘There can be nothing before this law. Or, putting that as a tangent, what is before the law can only be nothing. Or, putting it at another tangent, law ultimately comes from nowhere and is not beholden to anything before it.’48 If this is a solution to the enigma of legal foundations, then it seems more like an opportunity to admit the embarrassment of legal thought in its attempt, each time, to think and ground itself. The Latin verb solvo, from which the adjective ‘absolute’ is derived, ‘can be analysed as se-luo and indicates the work of loosening, freeing (luo) that leads (or leads back) something to its own *se’.49 In Indo-European languages, the group of the reflexive *se (Greek he, Latin se, Sanskrit sva-) indicates what is proper and exists autonomously (according to what is proper to it, according to its-self.) In his analysis *se has a double semantic value in the sense of ‘what is proper to a group’ (as in the Greek he¯ thos – and e¯ thos – ‘custom, habit, dwelling place’ and in the Latin suesco – ‘to accustom oneself ’, sodalis ‘companion’) and in the sense of ‘what stands by itself, separated, alone’ (semantically related to the Greek idios – proper –, and he-auton – itself –, as well as to the English ‘self ’ and the German sich and selbst). Thus, the absolute is not something ‘simple’, a mere identity or a mere difference, but rather both a ‘relation that unites’ and a ‘relation that separates’. In a linguistic sense *se contains the paradox of the understanding of language itself, a paradox for both philosophers and grammarians. In a philosophical sense this is no other than the form

47 See 2001: 16–21. 48 Ibid: 80–1. 49 1999b: 116.

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of the ontological difference that Heidegger problematized throughout his work.50 Agamben writes as to *se: ‘Grammarians tell us that it is a reflexive form; in other words, it indicates a movement of re-flextion, a departure from the self and a return to the self, like a ray of light reflected in a mirror. But who is reflected here and how is this reflection achieved?’51 Thus insofar as *se indicates a relation with itself, a reflection, it implies a reference to another pronoun or name and it is never employed by itself; that is, what reflects never has the same form as what is reflected. When Heidegger thinks the Being of beings, he is thinking of nothing else but of the relation-difference between the nominative and the genitive. The genitive indicates a belonging, a beingproper; yet for Heidegger this is not a mere genus and hence the need for the elaboration of the ‘ontological difference’ beyond a mere relation between the genitive and the nominative. When Heidegger, in his later thought, abandons the ‘relation’ in question, he attempts to think temporality and/as Being in their proper fracture as an outside-inside of what is temporalized and said in actual discourse. Indeed when Heidegger formulates the supreme concept of his later thought, in Ereignis, this is the problem that he has in mind. The paradox that any such undertaking faces (the immediate predecessor to Heidegger’s attempt to think *se) is Hegel’s Absolute. Agamben writes: if to think something according to its *se (kat’heauto) is to think it absolutely, beyond its ties to other words and independently of its inflection in the occurrence of discourse, *se nevertheless cannot be thought kat’heauto. (This is only an apparent paradox, since modern philosophy is precisely the attempt to show what it means to think *se, to think it absolutely and as subject.)52 Heidegger, in fact, links Ereignis to the problem of the absolute in his etymological analysis, whereby Ereignis relates to the verb eignen ‘to appropriate’ and the adjective eigen ‘proper’ or ‘own’. In 1930–31 Heidegger’s lectures on Hegel’s Phenomenology of Spirit distinguished an absolving element in absolute knowledge and defined the essence of the absolute as ‘infinite absolving’.53 50 The ontological difference, the distinction between being (das Sein) and beings (das Seiende), is fundamental for Heidegger in his early work. 51 1999b: 118. 52 Agamben, 1999b: 117; Agamben writes, ‘Heidegger himself links the problem of Ereignis to that of Selbst, the ‘same’. Semantically (but not etymologically), eigen is to Selbst as idios is to he. The established etymology of Ereignis (to which Heidegger also makes reference) relates it to the ancient Germanic term ouga, “eye”: ereignen < ir-ougen, “to place before one’s eyes”. Eigen instead derives from another stem, *aig, which signifies possession’; in ibid. 53 See Heidegger, 1994: 32–45.

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This reading of the absolute places emphasis on the absolving element, that is, on what happens to the phenomenon and to the Absolute when absolution reveals itself as its raison d’être. For Agamben this is decisive and there are two things to be pointed out as a result: First, at the point at which the revelation of the Absolute is accomplished, the phenomenon shows itself no longer as a phenomenon, but as a fulfilled figure (that is, no longer a figure of, but itself.) Second, at the point at which the Absolute (absconditum), having been absolved and led back to its *se exhausts its figures, it shows itself as without figure. Thus, the absolved phenomenon that is ‘fulfilled’ and the ‘without figure’ of the absolved absolute reciprocally appropriate each other and must be thought together. Heidegger’s proximity and difference to Hegel’s Absolute cannot be examined here, yet it is significant to point out that for Heidegger the major difference between his Ereignis and Hegel’s absolute lies with the conception of finitude. Heidegger writes, ‘Since for Hegel man is the place of the Absolute’s coming-to-itself, that coming-to-itself leads to the overcoming (Aufhebung) of man’s finitude. For (Heidegger), in contrast, it is precisely finitude that comes to view – not only man’s finitude, but the finitude of Ereignis itself.’54 Heidegger wrote in 1936 that Ereignis ‘is not identical to the Absolute, nor is it its antithesis, in the sense in which finitude is opposed to infinity. With Ereignis, on the contrary, Being itself is experienced as such; it is not posited as a being, let alone as an unconditioned and supreme being.’55 Heidegger attempted to grasp the sense of Being as a sense of a destination or movement (kinesis) that no longer withdraws from what it destines, a concealment that no longer conceals itself. Aletheic movement, in Heidegger, is a poietic movement or what Heraclitus called play (paignion). For Heidegger there is no longer a task for ‘man’, but a manner (a manner that Da-sein in itself is) of appropriating-the-expropriation that ‘man’ is (and here overcoming – Aufhebung – can only mean the expropriation of all appropriations, of all vocations). Agamben writes: What can it mean, if not that what appeared in metaphysics as the oblivion of Being (in the sense of an objective genitive: man forgets Being) now shows itself as what it is, that is, as the pure and absolute selfforgetting of Being? We cannot speak of there being something (Being) that subsequently forgets itself and conceals itself (we cannot speak of a name that withdraws, destining itself in events of speech). Rather, what takes place is simply a movement of concealment without anything being hidden or anything hiding, ‘without anything being veiled or

54 As quoted in Agamben, 1999b: 128. 55 Ibid.

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anything veiling – pure self-destining without destiny, simple abandonment of the self to itself ’.56 This means two things at the same time: on the one hand the history of Being is finished, that is Being has exhausted its figures; and on the other hand, this pure destining without destiny and figure appears as the proper impropriety of man. In Heidegger’s sense this is what is meant by abandonment, not the infinite sublation of ‘man’s’ finitude, but rather abandonment as the ‘essence of man’. But is abandonment not at the same time what is proper in the movement of Ereignis and yet also what does not exist (it is not a thing, or a lexical entity), the unnamed ‘without Figure’ in the closing of all negative metaphysical figures? Is this not an ultimate figuration of the undefined type which risks becoming yet another ‘untransmissible transmission’, yet another absolving absolute at the end of all figures of Being? Agamben writes: Tradition, which covered over what was destined in figures, now shows itself for what it is: an untransmissible transmission that transmits nothing but itself. Philosophy, that is, the tradition of thought that posited wonder as its arche¯ , has now gone back beyond its arche¯ to dwell in its e¯ thos, thinking only its *se. In tradition, this – the dwelling of humankind and its most proper ground – remains pure destining without destiny, an unsayable transmission. This means that ‘man’, the speaking being, is ungrounded and grounds himself by sinking into his own abyss; it means that ‘man’, the ungrounded, incessantly repeats his own ungroundedness, abandoning himself to himself. Agamben continues, ‘*Se is abandoned [. . .] to tradition as untransmissible, and only in this negative fashion it is grounded in itself [. . .]. It is the mystery of the origins that humanity transmits as its proper and negative ground.’57 The destined figures of metaphysics as presuppositions, as Heidegger has shown, are now to be seen for what they are: metaphysical idols that presuppose the ultimate nothingness that gives them the force of presupposition in the spectacle of re-presentation. The arch-presupposition is ‘revealed’ to be a ‘nothingness that nothings’ and it is here that modernity’s anthropogenetics finds its energy and its final concealment. Today, in the epoch of the dominant Western capitalist technology, this ‘revelation’ is most striking when more and more things are seen as intolerable and yet everything seems to be tolerated. There is, for Agamben and before him for Heidegger and Hegel, a saving power in this absolute re-turn to one’s self in that it invites two different

56 Ibid: 130–1. 57 Ibid: 133–4.

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interpretations. Spectrality 58 or nihilism, reveal the nothingness of all appearances. But the accent must be placed right: nothingness understood as no thingness. This is an absolute-negativity that can be seen to contain a radical possibility of revealing, contra the intentions of capitalistic spectrality, which, behind appearances, there is only the no-thing (inessentiality) of phenomena to be ‘saved’. That is, only their existence in pure potentiality as revealed in the experience of infancy. On the one hand, the absolute re-turn or abandonment of the self to itself can be seen as an absolute nihilism, if it reveals the arch-presupposition of all (presup)positions as a nothingness that nothings. Heidegger’s Ereignis stands for the absolute turn that reveals the impropriety of all presuppositions in their pure existence. Hence, the end of the history of Being, as well as the closing down of its figures, including that of the nothingness that nothings, informs the arch-presupposition of so-called post-modernity. The question that formulates at this end is put by Agamben as follows: [. . .] is what is at issue here a language that, while remaining human and alive, dwells in itself – a language no longer destined to grammatical and historical transmission, a language that, as the universal and novel language of redeemed humanity, coincides without residue with human activity and praxis? 59 A phenomenon is ‘saved ’ through a return to its pure existence in the Idea (the vision of its pure existence) by no longer being a figure of something else but itself, its own *Se, its e¯ thos. The absolute, the Idea, having exhausted itself in the various attempts to present the unthinkable or the unnameable, appears now without figure. The key is to think the phenomenon and the absolute in their functional relation in order to avoid the pitfalls of both nihilism and mystical darkness.60 What is not a solution to this conundrum is the repetition of the schema of a transmission that transmits nothing. Without destining any longer and without any negative relation to a has-been, without essence or nature, dwelling in the *Se can only mean dwelling ethically (e¯ thos, a way of being) without ever having anything more to say as to an origin or foundation, than, its being in praxis: a human praxis. Every foundational mythologeme is an absconditum, a fiction of a

58 On this notion of spectrality see generally Debord, 1994. It is crucial here to differentiate the notion of the spectacle, from a conventional misreading of spectacularity. Spectacle denotes not the realm of representation but rather in Debord’s precise sense of the term – ‘a social relationship between people that is mediated by images’. 1994: 63. On Debord’s use of the term see Agamben, 1998b. 59 1999b: 126–7. 60 See ibid: 128.

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beginning, an act that is marked with sacredness and immemoriality and which is assigned as the foundation of the unfounded legislation of ‘humanity’. All foundations abandon an activity (a sacrum facere) that grounds every lawful activity in another realm which must remain unsayable, immemorial and untransmittable in every human activity in order for the negative definition of being, of power and of community to be guarded by the messengers of this foundational transmission. Every foundational absconditum destines humanity to its oikonomia, to the administration or government, above all, of an immemorial transmission. Such a mythologeme needs to be rendered ineffective for a new form-of-life to be possible: A fulfilled foundation of humanity in itself necessarily implies the definitive elimination of the sacrificial mythologeme along with the ideas of nature and culture that are grounded in it. [. . .] *Se, the proper of man, is not something unsayable, something sacer that must remain unsaid in all human speech and praxis. Nor is it, according to the pathos of contemporary nihilism, a Nothing whose nullity grounds the arbitrariness and violence of social activity. Rather, *Se -e¯ thos- is the social praxis itself that, in the end, becomes transparent to itself.61

The experience of power: potentiality How do foundational mythologemes maintain absolute power in relation to an ordinary power, the power of a higher kingdom in relation to the earthly kingdom? It has been suggested earlier that the character of the manner in question is that of negativity. It is a particular type of negativity that is characteristic of this manner. Such a negative understanding presupposes that a concealed privation of power lies at the very origin of human power so that human beings are characterized by a lack that destines them to selfordained obedience and guilt.62 At the core of the fundamental scission of power between, for instance, constitutive and constituted power or absolute and ordinary power lies a concept that has a long history in Western philosophy, theology and politics: potentiality. For potentiality to have its own consistency it must by necessity not be able to pass over to actuality (to be also, impotentiality). While the concept of potentiality may seem at first to be irrelevant, or may seem to be no longer of use, the concept of potentiality has never ceased to function ‘in the life and history of humanity, most notably in that part of humanity that has grown and developed in potency [potenza] to the point of imposing its power over

61 Ibid: 137. 62 See Agamben, 2008b: 12–27.

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the whole planet’.63 In the domain of legal concepts and practices and in particular in relation to administrative law the question, for instance, as to what lies within one’s power or the related question of whether someone has exceeded their powers (ultra vires) arise in the domain of potentiality. In addition, all questions as to the use of force by state institutions nationally and internationally arise also in the domain of potentiality. When something has the force of law, it is seen to lie in the potential power of the law. When emergency provisions are made available within constitutional arrangements, they invoke the potentiality not only of a particular emergency, but of the force of law being exercised outside of its domain of legality, authorizing in effect a legal lawlessness or state of exception. More generally, if all foundations attempt to capture and regulate what they presuppose as lying outside their realm, then foundations can be seen, properly speaking, as arising in the domain of potentiality. Thus, on this concept light needs to be shed. In the old separation of absolute power from its ordinary application what remains potential is the absolute potentiality of power to do anything. Medieval scholasticism partitioned power between absolute power and ordinary power (limited by the concept of the will). The modern partition of power between a legal foundation and a founded law or the Schmittian foundational decision on the state of exception separates the absolute potentiality of the law’s force from its actual application. In this sense, the law remains in force without significance in the domain of potentiality. In this sense, too, the two paradigms of power that are derived from Christian Theology (sovereignty and oikonomia) also lie in the domain of potentiality. The political theology of sovereignty retains the potential character of power in the possibility of the law applying through its suspension. While through the model of oikonomia the Trinitarian partition of power rests potentiality in the vicarious character of its exercise. Law and theology can be seen, in one sense, to share the ontotheological or vicarious hypostasisation of potentiality in the governmentality of power, in its praxis. Through this mythologeme potentiality is thought as a privation that cannot be experienced and as an unparticipated, since the aim is to maintain for the presence of an abundance of power, keeping at bay a presupposed chaos of power at all times. This serves to explain the ontological root of the partition between a sovereign Law and an administrative law or government. Sovereign Law presents absolute potentiality as a privation that is forever sealed in the domain of the unparticipated (the sovereign must be an absolute sovereign): the transcendent.

63 Agamben, 1999b: 177.

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Administration or government aims to exhaust potentiality into actuality to achieve finality, status and effectiveness, yet it cannot but admit to the experience of a privation, a lack, arising out of a force (a Law) of law that remains in force without significance. Today when decision-making predominantly occurs through procedural mediums, decision-making appears more and more as the inability to decide (the inability to locate a person or subject of responsibility for decisions that are made and enforced). What is revealed is the domain of potentiality in its presupposed zero degree: the law as the mere force of Law (the law-itself ). In the logic of sovereignty the primacy of actuality is fundamental at the same time that its negative relation to potentiality lies at its very core as a presupposition and that forms its supreme aporia. What appears most frequent is the attempt to reduce potentiality (conceived as constituting power) to constituted power, to exhaust it to actuality. Parallel and equally problematic is the attempt by ‘radical’ theorists who attempt to think of the existence of potentiality as free and autonomous, as different to constituted power, who nonetheless fail to find a political or legal criterion to distinguish potentiality from actuality. It may be that the lack of such a criterion can be explained through the fact that the domain of potentiality is before all else the domain of ontology.64 The sovereign ban structure has absolutely no problem capturing in its negative relation between constitutive and constituted power, absolute and ordinary power, the so-called free praxis or autonomy of potentiality. A new ontological understanding is required for potentiality to be reconceived as other than through the primacy of actuality (and its negative relation to potentiality), that is, as not bound to the sovereign structure of the ban. The philosophical paradigm of this is bequeathed to Western thought by Aristotle. Agamben writes in Homo Sacer – Sovereign Power and Bare Life: For the sovereign ban, which applies to the exception in no longer applying, corresponds to the structure of potentiality, which maintains itself in relation to actuality precisely through its ability not to be. Potentiality (in its double appearance as potentiality to and as potentiality not to) is that through which Being founds itself sovereignly, which is to say, without anything preceding or determining it (superiorem non recognoscens) other than its own ability to not be. And an act is sovereign when it realizes itself by simply taking away its own potentiality not to be, letting itself be, giving itself to itself.65 Rather than conceiving of potentiality as the triumph of illimitable power or

64 See Negri, 1992. 65 Agamben, 1998a: 46.

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the triumph of the will, philosophy conceives of potentiality proper in the mode(s) of pure existence. If potentiality is conceived in law and theology as a celebration of absolute power, in philosophy, as much as in everyday life (like in those moments when without knowing if something is possible one feels the need to say ‘I can do this’), the experience of potentiality is the hardest and bitterest experience possible. In Aristotle there is a distinction between two kinds of potentiality: there is generic potentiality (‘a child has the potential to know’ if it learns, that is, if it undergoes an alteration) which does not interest Aristotle, and there is existing potentiality (a guitarist has the potential to play without suffering an alteration), which is always the potential to do something as well as not to do something (that is, the potential not to pass into actuality).66 This potentiality as existence can be understood also as the very root of negativity, which is experienced by human potentiality through the fact that human potentiality is first of all potential not to act. Human potentiality does not exist only in its actualization; it has the potential both to be and not to be and it is this potentiality as existence that shows the contour and the abyss of human being. What is potential, Aristotle says, is capable (endekhetai) both of being and of not being. Agamben writes: ‘Dekhomai means “I welcome, receive, admit”. The potential welcomes non-Being and this welcoming of non-Being is potentiality, fundamental passivity. It is passive potentiality but not one that undergoes something other than itself; rather, it undergoes and suffers its own non-Being.’67 Potentiality is to be formulated not in the manner of ‘I can do this or I cannot do this’ or further in ‘I refuse to do something’, but rather in the following sense: to be capable of one’s own impotentiality, to be in relation to one’s own privation (eidos, face).68 Considering the effective modes of potentiality’s existence rather than merely its logical possibilities, potentiality to be potential must not always disappear immediately in actuality; it must be also able to be impotential. Potentiality then ‘maintains itself in relation to actuality in the form of its suspension; it is capable of the act in not realizing it, it is sovereignly capable of its own impotentiality’.69 If that is so, Agamben asks, how is it then that an act can be realized? Aristotle’s answer to this question is: A thing is said to be potential if, when the act of which it is said to be potential is realised, there will be nothing impotential; (esti de dynaton

66 67 68 69

Agamben, 1999b: 179–80. Ibid: 182. See ibid: 180–3. Agamben, 1998a: 45.

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touto, hoi ean hyparxei he¯ energeia ou legetai ekhein te¯ n dyname¯ n, ouden estai adynaton).70 Agamben’s gloss on this is crucial in that he notes that ‘there will be nothing impotential’ does not mean ‘there will be nothing impossible’ (i.e. what is not impossible is possible). Instead: [w]hat is potential can pass over into actuality only at the point at which it sets aside its own potential not to be (its adynamia). To set im-potentiality aside is not to destroy it but, on the contrary, to fulfil it, to turn potentiality back upon itself in order to give itself to itself.71 This is proximate the formula of the ban structure in the paradigm of sovereignty that relates potentiality to actuality albeit negatively: taking away its own potentiality to not be sovereignty lets itself be – giving itself to itself. This is the secret kernel of the aporia of self-reference that has always characterized, whether consciously or unconsciously, Western foundations. As a result, constituting power or potentiality appears impossible to distinguish from the principle of sovereignty and its ban structure (to place something outside, to abandon it, to suspend it). The prevalent ‘ideology of potentiality’, to use Gérard Mairet’s phrase, on which the sovereign state (and law) is founded consists in a pseudo-bipolarity between two partitioned elements of power (i.e. absolute and ordinary, reign and government) that must be led back to a unity (an absonditum).72 The ideological presupposition, here, is that potentiality always-already pre-exists its praxis and on this basis obedience and allegiance are precedent to the institutions that render it possible. The secret (arcanum) of every power lies here and yet Agamben reveals it to be a mythologeme that ultimately shows the ontological plane of every political and legal power; and as such the metaphysical aporia par excellence shows its oikonomic nature (an economy of potentiality) and the manner of an action is shown to be foremost that of an ontological passion, a suffering: to have a privation, an eidos, a face, a form. It is at this point that the figure of homo sacer is a figure of the relation of ban or the relation of potentiality. A sphere or form of life (mere life) is separated as precedent to the institutions that require its separation in order to tie the knot between life and the polis. Bare life remains the potentiality that is separated from its actuality in qualified life and which is the manner of existence of every citizen. Evil in this sense is the placing of a form of life in a permanent state of being potential to not be, at a point where their pure potentiality and their pure actuality become coincident. At that very 70 Aristotle, Metaphysics, 1047a: 24–6 as quoted in Agamben, 1999b: 183. 71 Agamben, 1998a: 46. 72 As quoted in ibid: 48.

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moment bare life coincides perfectly with the life of their sovereigns and the much sought-after unity of the two elements of power and of these two forms of life awakens from one nightmare in order only to drift into the next. This aporia is a fundamental problem for philosophy. Agamben writes of this in a programmatic way: Instead one must think the existence of potentiality without any relation to Being in the form of actuality – not even in the extreme form of the ban and the potentiality to not be, and of actuality as the fulfilment and manifestation of potentiality – and think the existence of potentiality even without any relation to being in the form of the gift of the self and of letting be. This, however, implies nothing else than thinking ontology and politics beyond every figure of relation, beyond even the limit relation that is the sovereign ban. Yet it is this very task that many, today, refuse to assume at any cost.73 The solution to this aporia that Aristotle offers is that the ‘highest thought’, if contemplated, would neither think nothing, nor think something; would neither remain unactualized potential nor become merely actualized. The highest thought is thought thinking itself: which is a kind of mean between thinking nothing and thinking something, between potentiality and actuality. Thought that thinks itself neither thinks an object nor thinks nothing. It thinks pure potentiality (to think and not to think); and what thinks its own potentiality is what is most divine and blessed.74 At first instance, however, the highest thought that thinks itself, its own perfect potentiality, does not so much resolve the aporia in question as it elevates it to its most extreme. For how is it possible in actuality to think a pure potentiality? In the domain of law the form of the aporia finds its ultimate figure in the self-referential law that thinks itself, its own potentiality, so that the foundation of law is the self-founding of law that is absolutely without potentiality. This aporia crosses through the borders that traditionally separate law, philosophy and theology. The three monotheistic religions are in accord on the creation of the world from nothing (ex nihilo) for precisely the reason of this aporia. Agamben writes:

73 Ibid: 47. 74 Agamben, 1999b: 250–1.

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The problem that is at issue here is, in truth, that of the existence in God of possibility or potentiality. Since Aristotle stated that all potentiality is also potentiality no (to be or do), the theologians were forced to strip God of all potential to be and to will at the same time that they affirmed his omnipotence. If God had the potential to be, he could also not be, which would contradict his eternity. On the other hand, if God were capable of not wanting what he wants, he would be capable of wanting non-Being and evil, which is equivalent to introducing the principle of nihilism into God. The theologians thus conclude that, while he contains unlimited potentiality in himself, God is nevertheless bound to his will and cannot do or want anything other that what he has willed. God’s will, like his Being, is absolutely without potentiality.75 In this light the controversy among the medieval scholastics and later political theorists regarding the division between potentia absoluta and potentia ordinata can be reconsidered. According to the canonist interpretation of absolute potentiality God or the Sovereign can do anything (even perform miracles or declare states of exception). According to ordinary potentiality or power, however, God or the Sovereign will do only what is in accord with his will. When Schmitt defines sovereignty in the decision of the exception, it is this aporia that he tries to guard against, but in fact he simply repeats it. The only potentiality that can then pass into actuality is willed potentiality and as such absolute power remains absolutely impotential. The oikonomia of ordinary power, rests on the foundation of the primacy of the will over potentiality; while having exhausted potentiality in actuality. So that, today, in the age when, everything appears possible, the aporia of willed-power resurfaces to add that, however, not entirely everything is possible (at least not something that could jeopardize the primacy of the will over potentiality, the motive of the structure of the ban, the allegedly necessary negative relation of potentiality to willed power – which as such always refers its foundation and its limit to a past, to a has been). The difficulty of conceiving potentiality without a negative relation between being absolutely able and actively willed power or a has been is then highly significant.

The logic of contingency To rethink potentiality requires rethinking of Western modalities of possibility, impossibility, necessity and contingency. In the West, today, we are confronted with what Agamben calls the absolute demodalization of the world, where the world appears to be governed through the haunting presence of a command that commands nothing. Potentiality (and in this sense possibility)

75 Ibid: 253.

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is reduced as a modality to a relation to actuality wherein it lies exhausted. We can debate the possibilities of what could have been otherwise with reference to the past, but what seems beyond our reach is the possibility of discussing possibilities as co-present in the contemporary moment. Ultimately a practical problem of government is that someone has to decide which course of action to take and authorize this or that direction of action, but the practicality of decision-making cannot deny that its authorial references to empty figures of the law, of freedom, of humanity, of the civilized world and so forth are really demodalized figures. These figures point to an unparticipated realm, a higher transcendent kingdom that allegedly no one has the keys to and which always seems to refer to the conditionality of ‘It is what it is and it could not have been otherwise’. In other words the authorization of a decision, today, more often than not, is paradoxically derived from a lack of authority, from an undecidability whose author cannot be located. Today the languages of law and of politics appear demodalized in such a way that their allegedly open doors offer no access. The door lies open opposite your breath but the realm to which it leads is always-already an unparticipated, a no man’s land where possibility is ‘always-already’ reduced to actuality. Each decision alerts one to the supposed fact that ‘this is the law’ or ‘this is the way politics does things’, but is it not that we still do not know what the law or politics can do? If we knew of the totality of possibilities of law and politics then there would be nothing left to legislate or decide. But it is on the basis of such a counter-factual mythologeme of actuality in its absolute demodalization that capitalist democracies operate. The cretins thrive in counter-factuality. Potentiality remains the most difficult thing to consider. Our ethical, political and legal traditions insist not on what you can do, but on what you want to do and what you must do. Potentiality is thought through its reduction to either the term of the will (which determines the modality of possibility) or that of necessity (which limits the modality of contingency). There are, however, ways in which one can understand potentiality in a significantly different way to this reductionist model. For Agamben the literary figure of Bartleby in Herman Melville’s famous work provides one. Bartleby is told by the man of the law ‘just step around to the Post Office, won’t you?’ only for Bartleby to reply with his insistent ‘I would prefer not to’.76 What does Bartleby say or, rather, how does he say it? Bartleby does not say that he will not do so or that he must not do so, but that he prefers not to. The illusionary understanding of the modality of potentiality by the law, as much as by morality, is that the will or necessity has power over potentiality and that ‘the passage to actuality

76 Melville, 1853 as quoted in Agamben, 1999b: 254.

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is the result of a decision that puts an end to the ambiguity of potentiality (which is always potentiality to do and not to do) . . .’.77 Agamben comments: Bartleby calls into question precisely this supremacy of the will over potentiality. If God (at least de potentia ordinata) is truly capable only of what he wants, Bartleby is capable only without wanting; he is capable only de potentia absoluta. But his potentiality is not, therefore, unrealized, it does not remain unactualized on account of a lack of will. On the contrary, it exceeds will (his own and that of others) at every point. [. . .] It is not that he does not want to copy or that he does not want to leave the office; he simply would prefer not to. The formula that he so obstinately repeats destroys all possibility of constructing a relation between being able and willing, between potentia absoluta and potentia ordinata. It is the formula of potentiality.78 Bartleby’s insistent response hovers decidedly between affirmation and negation, acceptance and rejection and he thus installs himself within the luminous spiral of the possible, pure potentiality. There is, according to Agamben, only one formula in the history of Western culture that provides a precedent to this form of response and its potential modality. It is a formula recorded, among other sources, in Diogenes Laertius’s Lives of Eminent Philosophers and it is the expression ou mallon (‘no more than’), which was the technical term with which the Skeptics ‘denoted their most characteristic experience: epokhe¯ , suspension’.79 When the Skeptics use this phrase to say: ‘Scylla exists no more than a chimera’, they refer neither to an affirmation nor to a negation. What is more, the expression posits itself self-referentially to its own law of indifference: ‘ “no more than” says that it itself is no more than it is not’.80 The expression manages to articulate a phenomenon and to announce the affect without any opinion, that is, it manages to purely announce the passion of appearance, the pure announcement of appearance without any predicates or qualities: pure appearance. Agamben asks: ‘But if the formula [Bartleby] repeats hovers so obstinately between acceptance and refusal, negation and position, if it predicates nothing, and in the end, even refutes itself, what is the message he has come to tell us, what does his formula announce?’81 The perennial philosophical question in ontology ‘Why is there something rather than nothing?’ coupled with the principle of sufficient reason: ‘there is a reason for which something does rather than does not exist’, has furnished 77 78 79 80 81

Agamben, 1999b: 254. Ibid: 255. Ibid: 256. See ibid. Ibid: 257.

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Western culture with its originary formula of morality, ontology and law. The answer cannot be that there is merely no thing or that there is merely some thing. Instead, between Being and Nothing, Being and Non-Being, in ontological terms, lies a third position, a new ontology of potentiality summarized in the term ‘rather’ (or the ‘no more than’), which transcends both Being and non-Being and which conditions them both. Nihilism, today, insists in holding to nothing and making Nothing into the ultimate ground of Being. Positivism, in a general sense, insists in holding to Being and its necessary positivity. That the nothing as such can be posited and held on to as an empty throne shows the secret solidarity between the two twin facets of Western ontotheological culture. Instead, the formula of the ‘rather’ or the ‘no more than’ expresses the ontology of holding on to the experience, that lies beyond both ‘Being’ and ‘Nothing’, of an im/potent possibility that exceeds them and which is freed of the principle of reason. To experience authentically pure potentiality or perfect potentiality means to experience that a being can both be and not be. In philosophy (first philosophy) this experience refers to contingent being (contingens). If however a being could be said to preserve its potential to not be, then the past itself could in one sense be called into question and ‘no possibility would ever pass into actuality or remain in actuality’.82 Agamben, thus, notes that the aporia of contingency has been traditionally tempered by two principles: 1 2

The principle of ‘the irrevocability of the past’ – what has happened cannot not have been; and The principle of ‘conditioned necessity’ – which limits contingency with regard to actuality in stating that it is impossible that a being is and, at the same time, is not.83

Yet, contingency is precisely, in contrast to the second limit placed on it by the second principle stated above, able to be indifferent to contraries: a contingent is something whose opposite could have happened in the very moment in which it happened. The logic of contingency can be understood better in this sense, while it can be noted that the notion of the potential that it implies is still conditioned on the past (something could have happened ), on a has been. Agamben notes a third possible objection to contingency that refers to the problem of ‘future contingents’: if I say that tomorrow a terrorist attack will or will not take place, my statement, is always-already true despite either outcome. If something happens, then contingency is replaced by necessity and if nothing happens, then contingency is replaced by impossibility.

82 Ibid: 261. 83 See the discussion in ibid: 262–3.

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What is shown through this example is that contingent necessity concerns not the fact that something may or may not happen, but the whole tautological statement: ‘it may or it may not happen’. Potentiality is expressible in the whole of the tautology ‘it-will-occur-or-it-will-not-occur’, yet the space that this tautology opens is not that of mere necessity or impossibility but of the occurrence of a potentiality as such (of something that can both be and not be). If the experience of this tautology lies in the very space of potentiality, then the principle of ‘the irrevocability of the past’ and ‘the retroactive unrealizability of potentiality’ needs to be called into question. A true paradox is at stake here: the true nature of potentiality lies in the new ontological space of ‘past contingents’: the necessary truth of the tautology in question retroactively acts on the past ‘not to make it necessary but, rather, to return it to its potential not to be’.84 To the oldness of the actual Bartleby’s formula of necessary contingency, or contingent necessity, posits the return of the past to its potentiality, to save what was not (rather than to redeem what was).85 Mythological foundations of authority (and of law) keep the world separate from its potential to not be in order to capture not only the present being, but also its past and its future. The pure announcement of appearance in its potentiality to both be and not be is the space of a real state of exception where being is returned to its originary ou-topos of pure potentiality. This is the meaning of Heidegger’s saying that Dasein lies in its possibilities or the meaning of the void, the lack of an essence or substance of human being. But everything, here, opens through a new ontology – not the space of an infinite deferral (wherein the powerful can continue to counterfactually claim that the world is governable), or a mere lack – but the space of an ethical life (a plenitude of ways of being and not being), where the encounter with pure potentiality can turn the aporia of being into an euporia of being and where being is no longer presupposed, but exposed in its potentiality. The difficulty of appreciating this new ontology is considerable because it does not only posit a different logic of potentiality, but also a different attitude or way of being (e¯ thos). The modality of contingency can be considered within the domain of linguistic being in a similar manner. The entire representation of the Western understanding of possibility in all disciplines lies in the institution of a barrier that always and necessarily so, it is claimed, inscribes the expression of contingency (and of potentiality) in the form of a past. At the very moment of actual being, a being cannot be otherwise (conditioned necessity). Yet, is there a topos where a being can be, genuinely and paradoxically perceived, as being otherwise than it is, forming what has been

84 Ibid: 266–7. 85 See the analysis in ibid: 269–71.

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called an integral actuality?86 Agamben writes: ‘In the dark, the eye does not see anything but is, as it were, affected by its own incapacity to see; in the same way, perception here is not the experience of something – a formless being – but rather perception of its own formlessness, the self-affection of potentiality. Between the experience of something and the experience of nothing there lies the experience of one’s own passivity.’87 The most rigorous attempt to rethink the ontology of potentiality prior to Agamben’s is that of Jacques Derrida’s concept of trace and its aporia. With regard to the Derridean concept of the trace, which cannot be analysed in any detail in this work, and which refers to the excess of signification (signification always anticipates and survives the signified), the impossible appears possible in the experience of linguistic being, at least to a certain extent: The name can be named and language can be brought to speech, because self-reference is displaced onto the level of potentiality; what is intended is neither the word as object nor the word insofar as it actually denotes a thing but, rather, a pure potentiality to signify (and not to signify), the writing tablet on which nothing is written. But this is no longer meaning’s self-reference, a sign’s signification of itself; instead, it is the materialization of a potentiality, the materialization of its own possibility. Matter is not a formless quid aliud whose potentiality suffers an impression; rather, it can exist as such because it is the materialization of a potentiality through the passion (typos, ikhnos) of its own impotentiality. The potential to think, experiencing itself and being capable of itself as potential not to think, makes itself into the trace of its own formlessness, a trace that no one has traced – pure matter. In this sense, the trace is the passion of thought and matter; far from being the inert substratum of a form, it is, on the contrary, the result of a process of materialization.88 Potential thought can then think itself in a state of real exception (where sensible matter and intelligible matter can no longer be separated and which yet remain, for human beings, different), a threshold where thought thinks its own potentiality (to both be and not be, to both think and not think). It can be said, with Derrida in mind, that thought ‘as such’ is from the beginning a trace (a typos, type, a hint) of its own formlessness, of its own in-essential being. If thought had an essence then there would be nothing left to think or not to think. Yet, the aporia of humanity points not to a tragic pathogenesis, but to an euporia. This is what lies beside (para) the properly conceived

86 See Düttman, 1995: 3–25. 87 Agamben, 1999b: 217. 88 Ibid: 218.

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human intelligibility: not the infinite deferral of truth, or the infinite deconstruction of actuality or some new form of normative formalism, but the only availability to human beings: a human life, an e¯ thos, which cannot be separated from its form (its typos) and whose form cannot be separated from its life. ‘Language’ means that the meta-physics of the factum loquendi, to the extent that it can be expressed and thought in language, do not extend any further from physics. The plane of transcendence (what escapes all transcendence both of the subject and of the object) extends no further from its plane of immanence (an immanence that is not immanent to something other than itself ). This factum does not and cannot, by definition, capture its outside nor relate to it in a negative manner (to defer the odyssey of truth or of meaning ad infinitum); instead, truth is left to itself and this experience points to only one available euporetic answer with regard to its expression: e¯ thos, ways of being that are immanent (that constantly flow out) while remaining in themselves.89 The plane of a human being’s immanence (and of all that matters to a human being) is a plane of contingent potentiality. Thus, as Gilles Deleuze and Félix Guattari write: ‘Perhaps this is the supreme act of philosophy: not so much to think THE plane of immanence as to show that it is there, unthought in every plane, and to think it in this way as the outside and inside of thought, as the non-external outside and the not-internal inside.’90

89 This is a crucial point of proximity between Agamben, Deleuze and, perhaps, Spinoza, see Agamben, 1999b: 226–8. 90 Deleuze and Guattari, 1994: 59–60.

Chapter 7

The idea of justice

Uncoupling the ideas of law and of justice from the dogma of the foundation In a philosophical sense to eliminate foundational mythologemes and to expose the authentic limit of law is not to posit anew a relation of law and power (of law and justice) or to delineate a more radical freedom of constitutive power (in the name of ‘the people’ as in ‘popular sovereignty’). The problem lies with the structure of the foundational mythologeme of law as such, rather than with the function of law in setting limits and drawing differentiations. ‘Justice’, too, is not to be posited as yet another unparticipated transcendent realm, a negative echo of ‘another’ (postmodern) form of justice ‘to come’.1 Instead, justice is the provisional sign, here, for the appearance itself of what there is, beside the law and within the law: it is pure potentiality properly conceived. Justice has too often been posed as the ‘Law of law’ of justice in itself, even when it is claimed that justice is the non-juridical formula of transcendence (Derrida), constantly compromised by its very legal form.2 While the attempt to define a particular sense of juridical justice (most interestingly attempted recently by Gunther Teubner)3 remains an interesting and useful one, the concern in this work, is to consider justice in a particular philosophical sense. In Teubner’s conception, too, the problem of the negative pseudo-bipolarity of legal foundations remains, despite his systemic approach, in that he claims a justice that transcends the law and traverses the law, a justice that irritates or sabotages the law. Such a justice, in this trope, is betrayed by its theological and legal origin. The law, from the start, has always been conceived, in the Western tradition, as law and justice, as bipolar in a pseudo-dialectical way. The idea of a just irritation of the law has been with us from the inception of

1 See Douzinas and Warrington, 1994–5. 2 Derrida, 1992. 3 2008.

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the legal system. This in itself is not a problem. The problem lies with the way in which this is conceived and practised. It betrays the existence of the non-juridical and constantly attempts to be adaptive to the concealment of this fact, through accommodating each and every argument that appears to transcend the law, and to draw it within the law. Teubner’s definition of justice, though, is in this sense an accurate definition of juridical justice. The non-juridical definition of justice here refers to a non-normative realm that stands separate from the law and against any attempt at a fusion with the law. The starting point, however, in this conception of justice (or philosophical justice) is that without doubt the ideal of a good society that informed earlier attempts at defining justice is a lost paradigm. The elements of this paradigm – universal reciprocity, consensus and rationality – are all shown to be inconsistent and unsustainable. Therefore, philosophically conceived justice denotes nothing of the law in the legal use of the term as a supposed aim of the legal system or as an irritation that affects legal judgment. In this conception justice is authentically powerful (it is the weighing of our power only against our own power) and it is, significantly, modestly profane. Modesty refers to only one thing: not allowing the law, sovereign power and religion to claim for their self-capturing of whatever they perceive ‘as’ outside, that is, not allowing for their own over-determination of whatever else lies before and beside them. The juridification of the so-called ‘outside’ of law tends to become an apparatus for the control of what lies ‘outside’. But contrary to legal mythologemes of foundation and judgment the ‘outside’ to law cannot be controlled or possessed. This is not to suggest that there is no interaction between the poles of the juridical and non-juridical, but rather that the non-juridical is not the outside of the juridical. The non-juridical is immanent to itself and not to the law nor to something that transcends the law. The starting point to achieving adequate complexity in the study and observation of law and legal judgment is grounded in the accepting of this fact. Hence, ‘justice’ refers in this work not to a principle of adjudication or a higher politico-theological end, but instead to the experience of encountering the limit of the law, where one encounters the possibilities of the law (its own juridical potentiality) and all other non-juridical possibilities to law. The key is to conceive the juridical and the non-juridical at the point where they both coincide, while remaining differentiated, with social praxis itself. Contrary to the original mythologeme of the partitioning between what the law is (positivism) and what the law should be (normativity), the philosophical question to be raised each time (in what will be called pure criticism) is that of potentiality. In the form of this question philosophy and jurisprudence find a common theme and can provide significant contributions. To return law through the encounter with its limit to its possibilities means to return law, after the elimination of the partitioning between a higher law and

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a lower law, back not to, its referent ground of rightness, but to its use(s). ‘Common law’ (to refer to the sense of the Anglo-American tradition, though the term is used here more generally), will refer to the return of law to its common uses, to the sphere of the profane, through what Agamben has called the act(s) of profanation. The profanation of law will not eliminate the need for positing laws, nor for norms and judgment but, for once, the law will be understood as not always-already returning to its own presupposed (or even self-presupposed) unity of transcendence and immanence (the law as One), but as exposed to a true bipolarity: the law is continuously confronted with its pure integral potentiality in actuality (internal irritation) and with the nonjuridical (external irritation). Both the juridical and the non-juridical are immanent only to themselves with nothing to offer their unification or fusion (such as ‘society’, ‘politics’ or ‘morality’). This, it should be said from the start, does not render resistance or critique into apathy or insignificance, but it does realign them both towards thought and learning. Everything depends on how the verb can is to be understood. As has been suggested in the previous chapter, this entails a reconsideration of Western modalities and in particular of potentiality; where potentiality refers not to something that could have been different (with reference to the past), but to the paradoxical fact that something is otherwise than it is (potentiality lies in the integral actuality of things). The study of the profanation of laws will end the constant referral to some unparticipated foundational source or higher end and will instead refer the law, immanently and for the first time, to its human or profane uses. Law has never been a truly human profane law as shown by the constant reference to a higher law, in express or disguised ways, whose ultimate form is the state of exception (that of a law that commands nothing and yet remains in force). Human law is the name of the profane means and institutions of social praxis without recourse to foundational mythologemes of an external origin or a higher end. Human law in undergoing this profanation encounters its poverty (without recourse to the splendour and the glory of its foundational myths and politico-theological ends). Such poverty informs not an experience of commemoration of a negatively presupposed lost paradisiacal state, but instead the only available profane experience of humanity, that is, happiness (the unlived, what has never been, the remnant of the forgotten in/of every life). The profanation of law is, in fact, the fulfilment of law, which does not indicate the end or destruction of law, but the state of law after the elimination of the negative partitioning of law, between Law and law. Without recourse to a mere internal revisionism (whether through a new form of legal foundations, a new integrated biopolitical body or a new polity) and without recourse to an external critique of the law (in the name of humanity, moral justice, politics and so forth) the experience proposed here is one where law, for the first time, will coincide with social praxis itself. That is, with an ethical

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life (a life that is its way of being, its e¯ thos – what Agamben calls means without end ). In a truly paradoxical form of existence the life of law and the life of the subject (which in no way disappears) experience the loss of their foundational mythologemes and are returned to use, which is always a common use. That such a return has no recourse to foundationalist partitions and to a psychologization of subjection shows the pressing and complex nature of proper criticism. If law and its subjects are to be freed from the capture (of form) effected through the apparatus of the ‘Law of law’, justice and existence need to be freed, too, from the capture of the imagination of desires and life effected through the apparatus of a ‘Justice of justice’. Instead, justice has nothing to avenge. The use of the law has no end(s) and is just pure means. Pure means are just (just as they are). The profane use of law (that can only refer its decisions and rules to human authors) and justice in this conception (as ‘what there is’; means without ends) will be made to coincide with their proximate, but differentiated, social praxis. The and between the juridical and the non-juridical signifies not a supplemental relation or an infinite deferral of justice (Derrida), but a mutual exposition before their limits. This means that legislative practice will continue to fail, at times, to provide good laws and that juridical justice (judgment) will also be, contingently or intentionally, unsuccessfully observed, and that, for once whatever power, impotence and failure there is will be ours alone. The same modesty needs to be applied to philosophical justice and criticism. Agamben in Stanzas – Word and Phantasm in Western Culture, dedicated to Martin Heidegger, writes in the course of his ‘Introduction’ of the experience of reading and criticizing a work of literature: [. . .] it is common to expect results of a work of criticism, or at least arguable positions and, as they say, working hypotheses. Yet, when the term ‘criticism’ appears in the vocabulary of western philosophy, it signifies rather inquiry at the limits of knowledge about precisely that which can neither be posed nor grasped. If criticism, insofar as it traces the limits of truth, offers a glance of ‘truth’s homeland’ ‘like an island nature has enclosed within immutable boundaries’, it must also remain open to the fascination of the ‘wide and storm-tossed sea’ that draws ‘the sailor incessantly toward adventures he knows not how to refuse yet may never bring to an end’.4 It is to this older inquiry of criticism that this book has all along been leading. In the present chapter this inquiry will arrive at a preliminary conclusion. If one of the hypotheses of this work holds true, that is, that the mythological 4 1993b: xv.

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foundations of power, law, religion and language present political theory, legal theory, theology and linguistics with the task of an inquiry in limit concepts (i.e. kingdom-government-glory, state of exception, messianism and the fact of language’s existence as such), then it may be appropriate to suggest that the task of criticism is precisely to inquire into the making of such limits (and their limit concepts) in order to eliminate the foundational mythologemes in question and to think instead the Ideas (of power, of law, of religion and of language), in their pure potentiality as experiences. As explained below, the reference to the idea of law does not refer to an idealist conception of law or to some merely abstract theoretical engagement with the question of law. On the contrary the idea of law refers to nothing else, but to the traversal of law towards an inquiry into the fact of law’s existence as such, the law in its profanity. But if the ‘law itself ’ no longer refers to a foundation or to a tradition’s ‘untransmittable transmission’, the idea of law can refer to nothing else but itself in a truly paradoxical immanence. To this truly enigmatic paradox (as opposed to foundations positing only false paradoxes) this work turns to in a preliminary analysis below. It can be said, once more, that what lies before the law is simply the before as such and in this sense the idea of law (its idein, an experience of observation or seeing) can no longer refer itself to any supreme signifier or foundation other that its own profane being, its human contingency. It is often observed today that law has no recourse to foundations other than its own (‘Law laws’). Yet, in the various attempts to narrate the founding of law in law-as-such, recourse is had to a silent echo of a foundation that no longer governs: foundations in the name of legal sovereignty, of the People and so forth contain within their formulations the seed for the continuation of a negative definition of law: a division between a Law (that says nothing, an empty ideal form) and a law (that governs or rules). Such attempts have failed to ground law on the alleged identity of itself with its own conditionality. Legal theory has recently produced a proliferation of theories that presuppose ultimately a fiction or a mere hypothesis as their foundational ground: for example, Hans Kelsen’s ‘mere hypothesis’ of the Grundnorm or John Rawls’s hypothesis of a ‘veil of ignorance’ as to the original position.5 Kelsen’s attempt may be the most significant attempt at reaching the entry point to an inquiry into the limit of law in that, as Anton Schütz has reminded, for Kelsen the Grundnorm ‘is not part of the legal order: it is simply “presupposed” by any existing legal order’.6 That is, the Grundnorm can be conceived as the ultimate shifter of the law, its very condition of possibility. Schütz suggests that Kelsen in fact anticipated the conception of the state of exception (that his adversary Carl Schmitt theorized). The notion of this

5 See Kelsen, 1967 and Rawls, 1971. 6 2008: 123.

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‘mere hypothesis’ anticipated that the limit concept of the law which takes the form of a presupposition and which forms the law’s sine qua non (retaining its own conditionality while referring its source or foundation to its outside) is the reaching of an impasse in legal foundations where theories of legal foundations still circulate and are thought without really knowing any longer what is being talked about. That is, legal theories still think through the logic of presupposition or of a relation between a founding and a founded power and especially so when they do so in denial. Theorists who raise new foundations of the law in the name of morality or politics, despite their noble intentions, miss the opportunity for a more insightful inquiry into the problematic form of the presupposition as such. It has been suggested that the form of presupposition at stake in such theories (and theories of power, religion and language) remains within a circle of negativity that can only presuppose the foundation without ever being able to think it. The founded power is always thought as subject, as a hypostasis of an unthinkable foundation, an immemorial tradition, an unparticipated. If, however, another hypothesis of this work holds true according to which the form of the presupposition in relation to the understanding of power, law, religion and language refers thought to the presupposition of an unpresupposable, a false paradox grounded in an ineffable foundation, then the task of criticism proper can only be the inquiry into the elimination of this pseudo-paradoxical form of the unpresupposable. If, according to another hypothesis of this work, the problem of negative presupposition can only be illuminated through an inquiry of its formulation in linguistic terms, then it is in the exposition of the factum of the existence of language as such (which is conventionally understood as negatively presupposed) that all the abovementioned presuppositions or foundations find their common plane upon which they enthrone their problematic hypotheses. This work offers only a preliminary hint in this direction. With regard to the Idea of the law, then, the question forms as follows: what will the law look like after the negative presupposition of a foundation of law (a ‘Law of law’) is eliminated? The fact that today it is law that is in the place of the foundation, rather than Nature, God, Society and so forth and the fact that today lawyers speak of a ‘human’ law (generally speaking, but also in the ever-frequent reference to human rights or humanitarian law) has brought us closer to the preliminary steps needed for the inquiry into the idea of law, into its limit; but these concepts of the human still remain caught within a negative definition of the ‘human’, which as Agamben has shown, appears to have no other foundation than in the sacrificial mythologeme that produces (and presupposes) homines sacri. It remains part of the inheritance of proper criticism, then, with regard to the idea of law to now think of a truly human law without recourse to a sacrificial mythologeme and without recourse to the ever-recurring structure of a ‘Law of law’.

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Justice: the irreparability of the profane Justice can only refer, here, to the immobile flight (‘dialectics at a standstill’7) experienced in the ontology of potentiality where the actual world is led back to its ‘right to not be; all possible worlds are led back to their right to existence’.8 If ‘Justice’ is related to the expression of the language of law (the language of rights), in an awkward inversion of the formula of a ‘Law of law’, then conceiving of a ‘right to have rights’ as ‘justice’, returns all actual rights and all actual laws back to their ‘right’ of existence in the field of potentiality (yet justice needs to be thought instead as a transcendental field that is immanent, not to law, but to itself – the risk of naming this experience justice remains equally awkward to naming this return a right of rights). But such a ‘right’ to have rights, a non-juridical ‘right’ to existence (pure existence in pure potentiality), does not relate to a formless form of life (a bare life) or to the life of the oppressed whose life could have been otherwise than it is, but instead to the form-of-life where life paradoxically is otherwise than it is at every instant of its actuality. Justice is neither the justice that gives a reward to those that may will it or deserve it, nor a ‘perpetual punishment to what is’ (and could not be otherwise), but is instead a turn to potentiality, to pure existence (which is not, after all, a right, a property, a quality or a predicate of human beings that can be demanded or possessed, but their condition of being without essential predicates, their quodlibet, their whatever being). Justice, the ‘most ancient inheritance’ (dike),9 is palingenesis, apokatastasis panto ¯ n (regeneration, restitution of everything), wherein a new life (a form-of-life) is experienced not through the worldview of a theodicy or an oikonomia, but of a cosmodicy and of use, of things just as they are. This is the idea of justice: anamnesis or palingenesis, as is suggested below, which does not return a being to another form of being or to another place, but to its fulfilment as such, its exposition – to its Idea. Transcendence does not refer to a higher pre-existing foundation, but to the very taking place of beings just as they are: their poietic being in pure potentiality (poiesis does not refer here to the genre of poetry, but to the generic nature of potentiality).10 In The Coming Community Agamben analysed the Idea (the thing) of philosophy, the thing itself. The thing itself, the Idea of a thing or being, refers to no substantial or essential determination of its being, other than to its way of being such as it is: its e¯ thos. A reconfigured notion of transcendence

7 8 9 10

The phrase is Benjamin’s. See Benjamin, 1999: 865. Agamben, 1999b: 271. See Agamben, 1995: 79–80. It is regrettable that this book could not present and discuss in any significant detail one of the most important of Agamben’s writings, The End of the Poem – Studies in Poetics, which is key to understanding Agamben’s long encounter with poiesis; see Agamben, 1999c.

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corresponds to the transcendental term of the scholastics (quodlibet ens est unum, verum, bonum seu perfectum – whatever being is one, true, good and perfect) that for Agamben remains most unthought: quodlibet. Quodlibet or whatever being is usually translated in the sense of ‘whatever, it does not matter what, indifferently’. However, quodlibet ens means, in contrast, the precise opposite: ‘a being such that it always matters’. At stake is not an indifference that curses a being in its mere whateverness, but instead a whateverness of being which shows its intimate link to desire: an affirmation of its existence that loves it, just as it is. It is not an indifferent ‘neither yes nor no’, but a yes, just as it is. If philosophy thinks singularities (the pure being or existence of a thing or being), then the pure form of a singularity does not just point to the logical form of whateverness, but also to the ethical affirmation of its way of being. Whatever being is a singularity, that in its pure singularity (in its existence) refers to neither its mere particular properties (qualities) nor to the mere totality of its properties. Whatever being refers neither to the individual being of a being (its individual existence) nor to its universal being (its essence), but to its pure existence, its idea, its being such as it is. The plane of pure existence is necessarily linked to that of desire, that is, to the lovability of a being not on the basis of this or that of its qualities, or on the basis of a meaningless universal love (that is, not on the basis of a presupposition) but through the exposition of its being such as it is, in its pure appearance, its cognisibility, its pure communicability, which opens the region of lovability and desire as the proper domain of transcendence that is immanently woven in life. A whatever being or singularity is not the cognition of a particular quality of a being or of the substance of all of its qualities, but the conception or cognition of a cognizibility, the thinking of thought itself. A thought that thinks itself thinks the factum of potentiality (of both being able to and not able to think) and in this sense it always has the character of a passivity, of a remembrance, a return to the past contingency of a being in its whateverness. It is this movement that Plato called erotic anamnesis, which moves a being not to another being (an essence) or to a new place, but to its Idea; its pure existence, its poietic being. It would be careless at this point to claim that Agamben poses ‘love’, ‘whateverness’, ‘desire’ or ‘poietic being’ in the form of a transcendental or utopian term in their conventional senses and that one could then understand them psychologically, theologically, culturally, poetically or politically. Agamben’s use of these terms in a philosophical way refers to pure existence, pure being in pure potentiality. The domain of transcendence understood philosophically with regard to singular or pure being exposes itself to a sphere of an e¯ thos, a way of being, a life. The intentio intentum of a singular being in its pure existence is not only inseparable from its form and from its life, but its form-of-life commands categorically only a yes: an affirmation of its loveability (where ‘love’ does not refer to a romantic

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political, juridical or theological understanding, but to a philosophical – ontological – understanding). This is the life of the being-normative of the non-normative. ‘Before the law’ lies not a ‘Law of law’, but a non-normative plane (the justice of a pure existence) that has nothing to ‘recommend’ other than the affirmation of the factum that potentiality is integral in actuality. The most crucial analysis of this fundamental philosophical problem as to the question of the relation between existence and essence is provided in the Appendix of The Coming Community, which cannot be properly examined in this work in any significant detail, but whose key elements can at least be posed, in summary form, in the following way.11 The question of the relation between existence and essence has been thought through ontology or first philosophy with regard to a relation between the two where the one presupposes the other. Instead, for Agamben the key to thinking this relation is to think this relation anew, not in the form of a presupposition (or of a presupposition of an unpresupposable), but in the form of an exposition (exposition). Exposition shows the irreparability of beings in their whateverness, just as they are: ‘how the world is, is outside of the world’ but can be shown, at least to a certain extent, through the irreparability of the world, as exposed. The experience of revelation which has been situated earlier in the domain of revelation in language, in the factum loquendi, is the experience of the irreparability of the world. The irreparability of the world shows the exposition of the world in its abandonment in profanity. Revelation does not reveal God or divine being, but the irreparable profanity of the world. ‘God’ is the irreparably profane world. Whatever being or the substantia sine qualitate of philosophy has been thought through the deixis or indication of a presupposed being. Instead, whatever being, being such as it is, is the exposition of the thing-itself, of the Idea of a thing. The Idea of a being or thing does not point to some ineffable substance or universal essence of a thing, but to the linguistic being of the non-linguistic. What is exposed is the manner of a thing, the being of the thing itself, its cognizibility or communicability. Whatever being points not to an identity, but to an ipseity (ipseitas). Ipseity is not another thing (its difference) or simply the same thing (its identity), but instead the transcendent thingness of the thing’s being such as it is, its exposition. In this sense the relation between essence and existence can be properly understood in the expression: essence lies (liegt) in existence; it involves existence (involvit). It is through the revelation of profanity that takes place in the being-in-language of a non-linguistic being that ipseity is exposed, not as what is said (‘existence’) or what is meant (the being of a thing-said, essence), but as the thing-itself, the idea of a thing, its para-transcendence (beside the

11 1991a.

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thing-said), its profane halo, its proper limit (the linguistic being of the non-linguistic), a palingenetic ipseity which forms as a threshold between being and non-being. Such palingenesis is the e¯ thos, the way of being, of an irreparably profane human life. The contemplation of thought that thinks itself in its pure paradoxical form is conceived, as suggested earlier, as the experience of thought (where being and praxis coincide). Agamben’s key point is that in such an experience thought does not think nothingness (non-Being) or beingness (an essence or substance), but thinks its pure potentiality to both think and not think. Such purity does not denote a primordial natural or prehistorical state of being and thought. It denotes a form-of-life in its pure being (in its state of perfect potentiality) that is contemporary to its history and presence. Instead a being is beside its para-being, beside its pure potentiality, its Idea. To show the contemporary presencing of pure potentiality is the hardest experience. How one responds to this experience defines one’s ethics, one’s way of being. In philosophy this is the attempt to think thought itself, to think existence and essence as not in a relation (that takes the form of a negative presupposition), but in the form of an exposition of the being of a phenomenon and its epiphenomenon. In the philosophical investigation of the formula of Law of law in theology, political discourse and legal theory the question instead remains: how to conceive of the pure potentiality of law (its idea) in a different manner to that of a presupposition of a ‘Law of law’, that is, of a relation between an inside and an outside, between a law and a non-law. The pure potentiality of law introduces a third space, like a threshold wherein the poles of the juridical and the non-juridical cannot be fused, and where law is otherwise than it is. This threshold is where pure criticism finds its contour. How to conceive of the pure potentiality of the law (its Idea) is the hardest thing for legal thought. It is the hardest thing if one is to avoid the pitfalls of claiming that the Idea of law rests in some mythologeme of a pre-legal state, a natural state or law, a proto-religious domain, a grundnorm that commands nothing, a proto-morality, a pseudo-anarchism that understands nothing of how tradition is formed and of a utopian thought that remains frozen in constant deferral (potential, but never actualized). Instead, to show the pure potentiality of law necessitates the contemporary presence of its potentiality in the integral actuality of posited law, which does not aim to destruct the law or posit a mere new law or even to provide a new principle of lawlessness, but which instead returns law, each time, to the domain of pure potentiality, to its common use(s). The vocation of the genuine critic of the law is not to apply it or not apply it, but to study it.

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From the messianic aporia of law to the euporia of justice Every legal foundation posits its own picture-book of the end (telos) of law. The notion of the end of law is, thus, usually torn between an ideal form (i.e. justice as the ideal end of the law) and a practical form (a procedural or principled orientation of the application of law through its processes). The ideal and the practical form of the aims of law are then understood in the form of a relation, whereby the one presupposes the other. This is why in every theory of law at some point the theorist feels the need to posit not only the question of the nature of law’s being (or essence) in relation to its actualized posited existence, but also of the law’s end (which is usually expressed through a listing of principles of law available to guide judgment or legislation). In this manner, every judgment in law is posited as a necessary closure of a case at hand, forever postponing the ‘final’ (ideal) judgment that the law appears to promise in the names of justice, equality, fairness and so forth: a case, after all, needs to be decided. Whether conceived as absolute or as relative to procedural matters, the particular form of ideality of such principles remains questionable. Ideal justice, for instance, can only be seen-to-be-served and to think of the ideal form of justice one must always think it negatively through its relation to the actualized law or judgment: that is, counter-factually. Whether or not such principles (in their absolute ideal form or in a more nuanced liberal compromised form) are useful or necessary remains an interesting jurisprudential question (but more often than not they are the disguised forms of institutional or counter-institutional utopianism). This proliferation of aims or ends, whose theological origins can at least be noted, results in the supposition that these ideals are to be ‘worked through’ – progressively – arriving in practice at necessary compromises in the names of pragmatism and of actual judgment that forever defer the arrival of the ideal. In modern terms it can be said that the ideality as much as the actuality of the law is to be thought pragmatically through the necessary silencing or reduction of their promissory culmination and for the purposes of this work, the law appears to entail in its ‘original’ foundational promise a messianic paradox. The law must always-already couple law and justice together. The absolving nature of justice remains as the inside-outside of law as in the form of either that something ‘could have been other than the way it is’ (though, regrettably, once in the legal procedure the moment of such absolving justice already belongs to the past) or as something that ‘could become other than it is’ not on the day of legal judgment, but on ‘the very last day’ (which is a delayed messianic judgment that will never arrive; and which the law, in any case, cannot deliver). In this sense, justice is posed as the exhausted potentiality of the law in the law, reducing the bipolarity of the juridical and the non-juridical into one.

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Pragmatism here misses also the opportunity to admit that the betrayal of ideal justice could lead one to accept that justice as a concept is counterfactual and to admit, thus, that no one can ever be juridically just. Not only law, but also juridical justice requires the inclusive-exclusion of a state of integrity (a bare life), a sacred, unparticipated realm. The theorization of this work aims neither at rendering legal judgment unnecessary, nor at arguing that the positing of legal principles is unnecessary in general. It does, however, at least suggest that the legal and procedural notion of justice does not exhaust the idea of justice in the actuality of case-processing, legislation and legal judgment. Here, definitional care is required: the ideal form of justice and the idea of justice are not posited as synonyms. The ideal form of justice can forever be deferred within a legal system and still be claimed to ‘not be exhausted in the actuality of law’, even if this remains counterfactual. Instead, the idea of justice is not posed, anew, as an ultimate ‘essence’ of the law (as a metalegal principle) or as a mere idealistic guiding principle of its work-in-action. This inquiry poses first the question of the law’s messianic aporia as a question as such (at the root, in fact, of the foundational mythologemes of law’s painful promises); and, second, it poses the question of rethinking the idea of justice philosophically as uncoupled from the law, which does not though indicate a ‘freedom from the law’. As such, justice is not related to foundation of law, its origin, or to the end of law, but to its fulfilment (its return to pure potentiality, which will be explored below in some detail).12 In this sense, the concept or category of justice may not be best described as a legal concept or even as a counterconcept to the law in the performance of legal critique. Legal critique ‘in the name’ of justice remains caught within the very cultural form of law-making in the West; and as such it cannot provide for a supreme vantage point that allegedly transcends the law.

12 Benjamin has expressed this in his own way, which I discovered upon reading Scholem’s journal entry that described his discussions with Benjamin on the latter’s Notes to a Study on the Category of Justice (as well as a transcript of Benjamin’s text). This is an early writing by Benjamin that appears to have been written in 1916, a transcript of which can be found in Scholem, 1995. In this text Benjamin writes of the category of Justice and four sentences of his Notes acquired immense importance for me through time and have found a preliminary expression in this work: 1. ‘[. . .] There is no system of possession, regardless of its type, that leads to justice. This, however, lies in the conditions of a good that cannot be possessed – a good through which all goods become propertyless.’; 2. ‘Justice is the striving to turn the world into the highest good.’; 3. ‘Justice refers to the ethical category of the existing, virtue the ethical category of the demanded.’; and 4. ‘The right to justice, by contrast, is related to the schema of fulfilment.’ Agamben does not, to my knowledge, make explicit reference to Benjamin’s Notes in his work, yet I think that his own views on justice are significantly influenced by these notes (which Agamben has certainly read having been the Italian editor of Benjamin’s Complete Works). See Agamben, 1995: 79–80.

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Absolute justice (a theological remnant within the legal order: the justice that transcends the law) can then be thought as the experience that takes place at the suspension of the law; where justice signifies a crisis and the radical transformation of the entire order of the law akin to the structure of a state of exception. In the state in which we live where the state of exception has become the rule and where the law survives its suspension, to remain in force without significance, the law (in order to command nothing; and maintain its absolute sovereignty) undergoes its imperfect messianic moment. If justice reconceived philosophically is not the mere end of law (its decision-making telos) or its imperfect messianic aporia (its deferral), but the experience of the fulfilment of the law (its perfect messianic experience), then how is justice to be thought without resort to the imperfect messianic relation between law-and-justice that legal foundations and legal theory presuppose as yet another ‘Law of law’? When Benjamin relates the juridical category of the state of exception to his understanding of messianic time, where both law and the messianic event are characterized by a summary judgment (a judgment pronounced in a state of exception), he indicates not only the essential relationship between philosophy and law, but also the essential proximity between religion, law and philosophy. This is why the three great monotheistic religions, first philosophies in philosophy and the foundational theories of law have tried in every possible way to control and reduce the essential messianic and exceptional properties of religion, philosophy and law, ‘without ever fully succeeding’.13 If proper criticism restores the law to its co-originary plane of pure potentiality (where before its pure means lies only just what there is), then it must conceive of a ‘real state of exception’. Thus the most significant task remains to think of the Copernican understanding of time implied in the form of perfect messianism. If the messianic trope in which religion attempts to confront the problem of time and of law is particularly relevant to philosophers and legal and political theorists what is the specific problem of messianism? Agamben writes: The Messiah is [. . .] the figure through which religion confronts the problem of the Law, decisively reckoning with it. The Messiah arrives to confront the law of exile, the law of the fall, not simply through bringing a new Law or through destroying the old Law, but through fulfilling the law. According to Gershom Scholem messianism is animated by two opposed tensions: ‘the first is a restorative tendency aiming at the

13 Agamben, 1999b: 163.

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restitutio in integrum of the origin; the second is a utopian impulse turned instead toward the future and renewal.14 These antagonistic tendencies meet through the antinomian tendency in every messianism in the notion of fulfilment rather than mere replacement or destruction of the old Law. In the Christian conception of the pleroma of the law, for example in Matthew 5:17–18: ‘I come not to destroy [katalysai ], but to fulfil [ple¯ rysai ]’ and in Paul in the Epistle to the Romans 8:4 ‘that the righteousness of the law might be fulfilled in us’, what is at stake is the aporia of messianism in its essential relation to law. The paradox of messianic time is that ‘another world’ and ‘another time’ are present in this world and in this time. The paradox is that the summary judgment exercised through the Messiah does not aim to perpetually suspend the law and enter an interminable state of exception but to fulfil it. How can the Messiah fulfil the present law that remains suspended in a state of exception, that is, not simply a law that commands and forbids but one that is in force without significance (a law that commands nothing)? If the Messiah’s arrival signifies the nullification (but not destruction) of law, that is, its fulfilment, the suspended law threatens every messianism with a paralysis that would render the empty command of the law as its ultimate and perpetual state of existence. If the Messiah is both a redeemer and a legislator, what does he legislate in the fulfilment of the law? If we live in a perpetual state of exception then ‘our’ time is the time of the messianic and life is lived in infinite deferral and delay in which nothing can be brought to fulfilment and politics as much as law is emptied of all spirituality and remains confined in a state of petrified existence. ‘Our’ messianism is, in this sense, an always-already failed messianism that remains in the structure of the ban, of a law that commands nothing and which coincides with nihilism. This is precisely the state of law, as mentioned earlier, as that of two irreconcilable tendencies of the law (its justice and its law) whose tension can never be released and justice must remain forever delayed. If the messianic time is an interim time, between the time of law (the present eon) and its counter law (the future eon), then how is this time to be thought as other to a mere deferral and procrastination of the time under the law? In the declaration of the foundation of law’s sovereignty, what takes place in the state of exception is the concealment of a missing time that must never come to light. That is, the concealment of the operation of the sovereign decision in the state of exception must never come to light because otherwise that moment in time when the decision is made (which is a time suspended outside historical time) would become thinkable and would be threatened with its own fall into mere historical time. The pseudotranscendence of the decision on the exception must be separated and made

14 See ibid: 166–7.

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irreconcilable with historical time and yet through the inclusive-exclusion of a state of exception it is precisely what must be included in historical time by being excluded from it. If the Messiah instead arrives to fulfil the law of the virtual state of exception (the sovereign law), to bring it to its end, he must do so through a real state of exception (no sovereignty) that will restore the law to its ‘originary structure’ of use. It is here that the aporia of imperfect messianism coincides with the aporia of sovereign law, whereby the state of antinomy is one that is inside-outside the law. Yet if in the real state of exception of the messianic this fundamental antinomy does not merely restore law to its zero degree (which would simply mean to maintain it in its current state) or merely deliver a new law, then what is the ‘originary state’ of the law that is to be restored through its fulfilment? Agamben describes the attempt by Cabalists from the Sixteenth century onward to consider the nature of the original Torah (the Law): The Torah in its innermost essence is composed of divine letters, which themselves are configurations of divine light. Only in the course of a process of materialization do these letters combine in various ways. First they form names, that is, names of God, later appellatives and predicates suggesting the divine, and still later they combine in a new way, to form words relating to earthly events and material objects.15 Agamben’s discussion of this passage is significant for it exposes the implicit presupposition in this conception of the original state of the Law as that of an undefined text, consisting only of the totality ‘of possible combinations of the Hebrew alphabet’. Agamben writes: The most interesting and perhaps most surprising implication of this conception is not so much the idea of the absolute mutability and plasticity of the Law [. . .] as the thesis according to which the original form of the Torah is a medley of letters without any order – that is, without meaning.16 It has already been suggested that the presupposition of the origin of human language through a divine language has divine language being the potentiality of human language (that is, containing all possible meanings, but in itself having no meaning in its being divinely absolute where words and things coincide). It was also suggested that the presupposition of a higher law as the origin of human law purported to contain in itself all possibilities. Both presupposed original states entail the same paradox that the messianic

15 Agamben quoting Moses Cordovero in ibid: 164. 16 Ibid: 165.

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structure contains: that of a commandment that commands nothing, that has no meaning. The structure of the ban or of the exception is summarized in Gershom Scholem’s characterization of law in Franz Kafka’s novels: ‘Being in force without significance (Geltung ohne Bedeutung)’.17 As such the structure of the ban and of the exception coincides with the structure of nihilism and both need to confront the problem of their absolutization, their absolution as an idiosyncratic problem. Agamben writes: If we accept the equivalence between messianism and nihilism of which both Benjamin and Scholem were firmly convinced, albeit in different ways, then we will have to distinguish two forms of messianism or nihilism: a first form (which we may call imperfect nihilism) that nullifies the law but maintains the Nothing in a perpetual and infinitely deferred state of validity, and a second form, a perfect nihilism that does not even let validity survive beyond its meaning, but instead, as Benjamin writes of Kafka, ‘succeeds in finding redemption in the overturning of the Nothing.18 Everything becomes more difficult from this perspective and what seemed like a hopeful antinomian radicalism against the law (which is of the law) has proven to continually be caught within the ban structure of a law that can always contain its exception (its outside) within its ban. This is why every critical project as counter to the law, that always contains (explicitly or in denial) its own approach to the problem of messianic time, is firmly contained within the ban of the law. In this sense ‘being’ (in philosophy), ‘the divine’ (in religion), ‘language’ (in linguistics) and ‘law’ (in juridical thought) have been thought from the start only from the perspective of the sovereign or the imperfect messianic ban (a negative infinite deferral). In the Time that Remains: A Comment on the Letter to the Romans (2000), Agamben revisited in extensive detail the Messianic problem through a crucial rereading of Paul’s Epistle to the Romans reinstating this Epistle to the status of the fundamental messianic text for the Western tradition. The key elements of Agamben’s analysis can be schematized along three intertwined questions: 1 2 3

How can messianic time (ho nyn kairos) be thought? How is the messianic calling (kle¯ sis) to be thought? How is the notion of fulfilment (katargesis) of the law to be thought?

For Agamben, the possibility of understanding Pauline messianism coincides

17 As quoted in ibid: 169. 18 Ibid: 171.

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fully with the experience of the internal form of time that Paul defines as ho nyn kairos (the time of the now). It is useful, at this point, to summarize Agamben’s earlier reflection on how time has been conceived philosophically and theologically in the Western tradition(s), in his essay ‘Time and History – Critique of the Instant and the Continuum’ (1978/1993). In this essay Agamben proposes that every culture is ‘first and foremost a particular experience of time and no new culture is possible without an alteration in this experience. The original task of a genuine experience of thought and criticism, therefore, is never merely to “change the world”, but also – and above all – to “change time”.’19 Thus the dominant conception of time in Western culture through a vulgar representation of time as a precise and homogeneous continuum needs to be rethought. Agamben summarizes conceptions of time that have played a key role in the dominant conception of Western time. For the ancient Greeks time is conceived spatially as essentially circular and continuous and as having no direction other than unceasingly returning back on itself. Agamben writes: Aristotle thus defines time as ‘quantity of movement according to the before and the after’, and its continuity is assured by its division into discrete instants [tò ny˜ n, the now], analogous to the geometric point [stigme¯ ]. The instant in itself is nothing more than the continuity of time [synécheia chrónou], a pure limit which both joins and divides past and future.20 Time in this sense is always elusive and as such it is ahistorical (time cannot be mastered), which entails a destructive character that can only be ‘saved’ by the historical account of a witness (the histo¯ r). The antithesis to this conception of time, Agamben notes, is the Christian experience of time, which is that of a straight line and where time has direction and purpose (from the initial fall to the final redemption). Contrary to a time that repeats itself, in Christian time everything always occurs only once and is unique and irreplaceable. Christian time renders time as an internal phenomenon, an interiorization, through which, however, time still remains ‘the continuous succession of precise instants of Greek thought’.21 The mathematization of time returns, too, inevitably to the ancient Greek circular representation, so that ‘eternity, the regime of divinity, with its static circle, tends to negate the human experience of time. The discrete, fleeting instant becomes the point where time intercepts the wheel of eternity.’22

19 20 21 22

Agamben, 1993a: 91. Ibid: 93. Ibid: 95. Ibid: 96.

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Modern time is conceived through ‘the secularisation of rectilinear, irreversible Christian time, albeit sundered from any notion of end and emptied of any other meaning but that of a structured process in terms of before and after’.23 Such a notion of time is mechanical, homogeneous, rectilinear and empty. Human time is only the precise fleeting instant and historical time (and knowledge) has as its guiding categories the notion of progress or development, which has meaning only as a whole, rather than in terms of the fleeting now. Human time (the fleeting now) appears then as ‘dead time’ and history is separated from human experience. Instead, humanity is equated with the history of a continuous, infinite progress. Such a concept of history and time abandons the human to transcendental humanism, through a scission (alienation) between being-in-time (the fleeting instant) and beingin-history (the whole of progress). In Hegel, Agamben notes, time ‘appears simply as the necessity and the destiny of the unfulfilled spirit. The spirit must fall into time.’24 It is such a transcendental concept of time that is integral to the Hegelian dialectic which grasps history not in the instant, but only as a total social process. Here, the linear experience of time in the instant is separated from the ‘soul of the world’ and the real subject of history can only be the State.25 The antithesis to this notion of time is found in Marx who, while lacking a theory of time, conceives of historical time not as an infinite succession of precise instants, but as defined by ‘praxis, concrete activity as essence and origin of man’26 where human beings appropriate their own history, concretely and practically. History is thus not something in which ‘man falls’, but ‘man’s original dimension as a Gattungwesen (species-being), as being capable of generation’.27 To reconceive time in Western thought requires a critique of the dominance of the instant point of time. The instant point splits human experience between metaphysics and physics, being and action. Agamben reminds us that two different conceptions of time whose elements can assist in such a critique are contained in the Western traditions of Gnosticism and Stoicism. In Gnosticism time is represented by a broken line: an incoherent and inhomogeneous time (divine providence does not preserve, but breaks cosmic laws), ‘whose truth is in the moment of abrupt interruption, when man, in a sudden act of consciousness, takes possession of his own condition of being resurrected [. . .]’.28 ‘Resurrection’ is not something deferred and awaited, but has already taken place. In Stoicism, elusive time (the dominant model) is seen as ‘a fundamental sickness, which with its infinite postponement hinders

23 24 25 26 27 28

Ibid. Ibid: 98. Ibid: 99. Ibid. Ibid. Ibid: 101.

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human existence from taking possession of itself as something full and singular’.29 For the Stoics time springs from the praxis of man in whose decision opportunity is grasped and life is fulfilled in the moment. This moment of time where the decision grasps within time, different times, is kairos. In Greek language and philosophy the notion of time as continuous and measurable is chronos. Another Greek word to signify time, Aio¯ n, in contrast, was conceived from the word aio¯ n as vital force (the living being as an enduring, temporal being) which only later became associated with the notion of eternity. In this sense the Pauline phrase of zo¯ e aio¯ nios (the life in the now-time of kairos) can be understood better if translated not as ‘eternal life’ to indicate a future duration or eternity, but as closely linked to the vital force that is animated in the time of the now, the kairos (where every qualified form of life, every bios, is rendered inoperative).30 Fulfilled time is the time of the now (kairos) and in this sense messianic time is an enormous abridgement of time in the time of the now. To render-inoperative or to fulfil are the key verbs of the messianic operation. For Paul messianic time (ho nyn kairos) is a contraction of time, a ‘remaining time’31 and as such it is the only real time. The time that concerns Paul is neither chronological time, nor the apocalyptic eschaton, but a remnant time, ‘the time that remains between these two times, then the division of time is itself divided’.32 The conflation of messianic time with eschatological time (which renders time, once more, unthinkable and ungraspable) is a frequent misunderstanding of Pauline messianic time. Messianism is not eschatology, the time of the end is not the end of time. Messianic time puts into question the very possibility of a clear division between chronos and eschatological aion. Instead, messianic time is the time that is part of chronological time which undergoes an entirely transformative contraction and which introduces a remainder that exceeds the division between chronos and aion. How can such a conception of time be considered in terms of language? In modern terms the representation of this remnant time can be depicted through the concept of operational time (temps opératif ), which was conceived by the French linguist Gustave Guillaume.34 For Guillaume the modern concept of time represented in what he terms as the ‘time-image’ of past-present-future presents time as though it were always-already constructed, ‘but does not show time in the act of being constructed in thought’.35

29 30 31 32 33 34 35

Ibid. Ibid: 73. I Corinthians, 7:29. Agamben, 2005: 62. Ibid: 63. Ibid: 65. Ibid.

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The time of this act is no less real even if short. Guillaume defines operational time as ‘the time the mind takes to realise the time-image’.36 In the process of its formation in the mind the time image is chronogenetic time (time-generating time) which allows us ‘to grasp the time-image in its pure potentiality (time in posse) [. . .]’.37 It is on this basis that Guillaume and Émile Benveniste can show language’s referral to its own taking place, to a pure instance of discourse in action, the factum loquendi. In every representation human beings make of time and in every discourse by which time is represented, there lies ‘another time’ that is not consumed entirely by the representation of time. This can only be understood if considered properly from the point of view of a human being to the extent a being is a thinking and speaking being, who in thinking and in speaking produces an additional time that does not coincide perfectly with the time out of which s/he makes images and representations. What time is this ‘other time’? It is not an ulterior time but an interior time, ‘which only measures my disconnection with regard to it’, a time within time, which precisely because of this allows ‘the possibility of my achieving and taking hold of it’.38 This time is the time it takes to come to an end, that is, the time that we take to bring time to ‘an end’ and to achieve our representation of time. This time is operational time within chronological time transforming chronological time from within. Agamben writes: Whereas our representation of chronological time, as the time in which we are, separates us from ourselves and transforms us into impotent spectators of ourselves – spectators who look at the time that flies without any time left, continually missing themselves – messianic time, an operational time in which we take hold and achieve our representation of time, is the time that we ourselves are, and for this very reason, is the only real time, the only time we have.39 It is because perfect messianic time takes place in operational time that it can recapitulate every factical vocation, every being-so-called, not through a new future vocation or identity, but through a recapitulation of the past through its return to its operational time, at the moment of its pure potentiality. Operational time, to risk conflating two different uses of the word operative, is the time of inoperativity. To appreciate the notion of this recapitulation in relation to the past, the second key concept in the Pauline Epistle, that of kle¯ sis (calling) needs to be introduced. The kle¯ sis in question appears in the Epistle to the Romans: 36 37 38 39

Ibid: 66. Ibid. Ibid: 67. Ibid: 68.

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‘Paulos doulos Christou Iesou, kletos apostolos aphorismenos eis euaggelion theou’ (Paul slave of (the) Messiah Jesus called emissary separated unto (the) announcement of God).40 Kle¯ tos, from the verb kaleo¯ (to call), means ‘vocation, calling’.41 The passage in I Corinthians 7: 17–22 where kle¯ sis is mentioned is of particular importance: ‘Let every man abide in the same calling wherein he was called [en te¯ kle¯ sei he ekle¯ the¯ ]’.42 This calling is not to be understood here as that of an eschatological indifference towards worldly conditions. Kle¯ sis is a technical term in the Pauline vocabulary and it indicates ‘the particular transformation that every juridical status and worldly condition undergoes because of, and only because of, its relation to the messianic event’.43 What takes place through the messianic calling is an internal shifting of each and every singly worldly condition by virtue of being ‘called’.44 This calling entails a particular experience of language (and time) wherein factical and juridical conditions in which and as which we are beings-socalled suffer a contraction within themselves. The messianic calling is ‘a calling of the calling’, a calling (a contraction) of the being-so-called, applying to every condition and revoking every condition. It could be suggested that the messianic calling returns each being-so-called back to its originary structure as pure potentiality in the factum loquendi, the fact of being-socalled called into question as such. The messianic calling or vocation (as the revocation of all vocations) forms not as a right but as a generic potentiality which no one can ever own, yet which everyone can use. The messianic calling does not return every being to its autonomy with its right to existence (and its other rights), but to its generic potentiality, which is anything but autonomous; it is common (without being a common being that could be owned and possessed). At this point the fulfilment of all vocations and all being-so-called coincides with the notion of fulfilment of the law as katargesis a concept crucial to Pauline messianic vocabulary. II Corinthians 7:21 reads: ‘Art thou called being a slave? Care not for it: but if thou mayest be made free, use it rather.’45 Kle¯ sis is something to use, not to possess. Generic potentiality, the manner of the factum of existence, cannot be owned or possessed, but only used. In the history of the evolution of property where one could study in some detail that cannot be afforded here, which is the subject of a forthcoming work, the complex relationship between the messianic backdrop within which the Franciscan claim to a use (usus facti) opposed to dominium and the language of rights could be interrogated in relation to the later

40 41 42 43 44 45

Ibid: 6; translation by Morgan Meis. See ibid: 19–43. As quoted in ibid: 19. Ibid: 22. Ibid. As quoted in ibid: 26.

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development of the modern notion of property (through a complex intertwining of theological discourse and legal and political discourses) as founded on dominium and rights.46 Paul opposes the law of faith (pistis) to the law of works (the law of the commandments, the law of acts carried out in the execution of precepts), that is, in the messianic calling the non-normative figure of the law is set against the normative figure of law.47 In this sense the messianic is not a new sacred law, but the fulfilment of the law (its return to profane use, to a non-normative generic potentiality that is beside the law, but not of the law). Fulfilment is a true paradox of the law (being-para, beside the law) that forms a real exception to the law without being an exception of the law. Fulfilment of the law brings the law to coincide with the kaironomia of social praxis, wherein both law and kairos partake in the nomos of the Earth. Agamben’s discovery, here, is in the use of the word katargesis by Paul. The verb katargeo¯ , a key word in the Pauline vocabulary, is: ‘a compound of argeo¯ , which in turn derives from the adjective argos, meaning “inoperative, not-at-work (aergos), inactive”. The compound, therefore, comes to mean ‘I make inoperative, I deactivate, I suspend the efficacy.’48 Katargeo ¯ does not mean I annihilate or I destroy the law but I deactivate the efficacy of law, and return it to its astheneia (its weakness) in the domain of its potentiality (Aristotle): giving back to the laws (transposed onto works and mandatory precepts) potentiality in the form of inoperativity and ineffectiveness. In being rendered inexecutable the law is not annihilated, but is instead returned to its generic uses. Power and law are, thus, restored, recapitulated, to their inoperativity. Perfect antinomianism is a force internal to the actuality of the law (where the law’s nomos is contemporary to its non-normatively captured kaironomia), though not internal to the law, which inverses the latter’s effectiveness; it does not preserve the law as it is, nor destroy it, nor does it create a new law to replace the old law, but it instead restores law to the sphere of pure means, and renders it free to common use. Perfect antinomianism is contemporaneous to the nomos of the law and it forms in the site beside or before the law. As a real state of exception or suspension of the law, then, the messianic time of kairos, the time of the now, contracts time and restores law to its kaironomia, its pure potentiality, its idea. In this kaironomia the law coincides with the pure potentiality of social praxis. If this can be understood as a law (a para-law, being-beside the law), it is not to be understood as yet another Law of law, but as a genuine condition of possibility of law. Yet the laws that come through such kaironomia will, for once, only be able to refer to their affirmative human genealogy (and not the negative agenealogy of some banned sacred domain). Such an act of

46 See Burr, 2001; Moorman, 1968 and Francis of Assisi, 1999. 47 See Agamben, 2005: 93–96. 48 Ibid: 95.

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affirmation is not liberated from the abyss of non-being, of the forgotten or unlived (a different understanding of negativity, thus, will remain) but will affirm its most ancient inheritance as a problem, rather than as a dogma. Kaironomia remains what is at stake in the struggle with the law.

The idea of criticism: pure criticism The kaironomic character of faith (pistis) is a manifestation of ‘justice without law’ (dikaiosyne¯ cho ¯ ris nomou).49 Agamben writes: ‘Justice without law is not the negation of the law, but the realization and fulfilment, the ple¯ ro ¯ ma, of the law.’50 Messianism appears not as a justice outside the law or as a mere principle of the law, but as a struggle with the law, bringing to crisis the concealed negative link between law and religion. If the originary messianic experience is that of the word (the word of faith), then the perfect messianic performative of faith (performativum fidei) deactivates the penitential and sacramental performance of the law. It is this crisis that the current opposition between secular-fundamental and theocratic-fundamental states misses entirely – ignoring their coincidence in this fundamental sense. To maintain the originary state of the law open beyond any determinate signification (and yet not to retain it as an unparticipated nothingness or as an ineffability) in its state of pure potentiality, is not to infinitely defer anew a new denotation, a new law, but instead to maintain that before or beside the law and contemporary to the law (and to linguistic being) lies a generic potentiality (the Idea of law and the Idea of language), which is not identical to the form and content of a posited law, but which finds its para-form in the operational time it takes to conceive it as such: it is the time it takes to legislate (that is another way of saying that normativity does not arise out of a transcendental domain of meta-normativity, but in social praxis). Law can be ‘deconstructed’ to return it, each time, (against its denial of its genealogy in a human act, rather than in an empty principle or concept), to precisely such a genealogy (rendering the creation of law conceivable, comparable, challengeable). If such a deconstruction is performed in the name of the ‘law’ in the abstract sense or through similar ‘empty’ concepts, then the deconstructive act will ultimately defer its task given that its supposed ‘real’ or ‘ideal’ object is unthinkable as much as ungraspable. Law can be thought instead with regard to its co-originary plane of pure potentiality (where a law can both be and not be) and in which law is not characterized by its autonomy from actual life but by its coincidence with it, its common use in the plane of social praxis. Law in this sense has no negative or transcendental foundation. The ‘originary state’ of the law is one of participation

49 Romans, 3:21; as quoted in ibid: 107. 50 Ibid.

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in a generic potentiality, that cannot be owned or possessed, but only used. If there was a meta-normative foundation of normativity, then we should give up on all our other aspirations, desires and so forth and merely be legal subjects.51 To be in the law means to be animated continuously by two opposed tensions that can never coincide and which are co-temporary: the first attempts to encapsulate the generic potentiality from which a law arises by articulating it in semantic contents and precepts; the second is oriented, on the contrary, towards maintaining a law open beyond any determinate signification and remembering its original belonging to the domain of common use, to social praxis. Today, the law has stiffened and has atrophied, having forgotten its ‘originary structure’, and the vitality of law appears forever suspended. Agamben writes: The juridicizing of all human relations in their entirety, the confusion between what we may believe, hope, and love, and what we are supposed to do and not supposed to do, what we are supposed to know and not know, not only signal the crisis of religion, but also, and above all, the crisis of the law.52 The crucial problem is that both tensions in question appear today stiffened and mutually exclusive: the so-called ‘right’ faction claims for the guarantee of the order of posited laws and the so-called ‘left’ faction claims for the suspension of the law in the openness to new content or even an indeterminate, undecidable content. Both appear as equally dogmatic positions, mutually complicit in the atrophization of the law and of social life (which serves to explain the easy conflation of so-called ‘right’ and ‘left’ perspectives today). ‘The state in which we live’ is not only characterized by the virtual exception that suspends the law and maintains it beyond its validity, but also by the virtual exception exercised by the imperfect antinomian tendencies of the so-called left, that suspend law to an indeterminate openness, as-if uncoupled from the law (rendering the nothingness of their foundation as the foundation of a pseudo-communism or pseudo-anarchism). A recent work by Schütz, a lucid legal thinker, entitled ‘ “Legal Critique”: Elements for a Genealogy’ (2005) draws attention to the fact that contrary to common perception, the antinomian tendency towards a being against the law does not date merely back to the Enlightenment, but is instead coincident with the history of the law as such, at least since the days of early Christianity. The ‘campaigns against the law’ must, thus, confront their much longer lineage and their relation to Christianity in particular. According to Schütz,

51 As Anton Schütz has thankfully never ceased to remind me. 52 2005: 135.

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Christianity is from the start ‘nothing less than a religion. It is a “campaign”, a “movement”, located in a community of dispatchers of a certain message (“Good news”).’53 Christian-post-Christian culture is today the compound of an ever-renewed dogma of a ‘true religion’ (vera religio) that operates as the key yardstick for separating post-neo-Christian Western culture from the non-Western denizens of the global community. Western cultural evolution, inseparable from Christianity, is intimately tied to an antinomian trend (a being against the law), against institutionalized bonds. The ‘exit’ from religion seems controlled from within religion. A number of modern campaigns offering a meta-legal or meta-religious alternative, an uncoupling from the law, Critical Legal Studies being only one of them within the sphere of legal theory and activism, have since long ago forgotten their Christian or Pauline archetype. The political quest for autonomy (as opposed to heteronomy) entails, thus, a paradox since the antilegal or meta-legal core of such a quest, more often than not, becomes a form of law in itself. ‘Autonomy’ from the word autonomos indicates a being that is not being tampered with and whose source of law is only itself. Such autonomia, Schütz suggests, gives rise to nomos as auto-nomos, which requires a certain paradoxical ‘genealogical cleansing’ by being founded on a denial of any other source other than its own self-confidence. If heteronomy is conceived as a source of law outside the law, a bare source, without origins and without genealogy, then this places autonomy and heteronomy in close proximity. It is almost as if autonomy in this sense always-already presupposes a denial of genealogy (an inability to locate the source of a rule in anything other than the individual’s self-confidence to be its own lawgiver.) As such an agenealogical autonomy is the shared core of law-giving and of the denial of the law in the campaigns for an uncoupling from the law (since more often than not such denial-campaigns claim ironically their source of law-giving for the uncoupling from the law in sources that rely primarily on their agenealogical nature and become new proper names – ethics, justice, freedom and so forth). Heteronomy can be conceived, however, according to Schütz, in at least two different ways: First, as an antonym to autonomy, heteronomy characterizes those ‘unsuccessful communities’ in placing their existence under laws of their own making. Second, as an antonym to auto-nomos, heteronomy characterizes those successful in avoiding becoming the individual sovereigns of their lives.54 Autonomy in the Western configuration of the term means, after all, exercising self-discipline, a self-legislating power which is traditionally coupled with its denial (and this as an internal discourse to self-legislation). The West is represented as not only autonomous

53 2005: 72. 54 Ibid: 78.

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(self-law-giving), but also as the source of any other possible ‘movement’ against the imposed law (as the only source of heteronomy). It can only achieve its autonomy if both tensional forces (for the law and against the law) are seen as autonomous from any kind of a particular type of heteronomy (that is, from any source outside the Western configuration). In this manner the Western yardstick becomes the only supposed yardstick for judging progressiveness, democracy, freedom and the nature of legal systems, giving the West a self-claimed exceptional status with regard to the other communities, concealed underneath the banner of autonomy (both for the law and against the law). Those campaigns that argue for a state ‘after-law’, aiming to liberate the multitudes from oppressive regimes of law, offer the paradoxical, but inaugural for Schütz, form of an ‘admittedly denied legality’.55 What is truly paradoxical is that the cause of legal criticism is placed within ‘the heart of its legal structure’ and this has been taking place since at least the time of early Christianity (whose antinomianism, for example in Pauline messianism, defines the problem of the law as torn between a law-giving power and a non-normative power that seeks its uncoupling from the law). This makes for the peculiar experience that any ‘campaign against the law’ is actually situated in the domain of the majority tradition which it purports to overthrow and criticize. This is aided by the mythologeme of progress, which sees itself as having ‘come out’ of a long period of oppressive heteronomy characterized by incomplete freedom and individuality (‘the past’), and having ‘succeeded’ in brimming with autonomy, freedom and individuality in its so-called modernity. For example: the blame which the Enlightenment has heaped on the Church [. . .] and the identification of Christianity with repression and closure, firmly rooted in modern thought, appear as faithfully restaging the foundational Christian onslaught against the law and the slavery it imposes upon its subjects (as slaves of the letter-that-killeth).56 It is Christianity, instead, which at its core placed the stake on the autonomous self and its construction. The two supposedly mutually exclusive paradigms of ‘religion’ and ‘enlightenment’ or ‘modernity’ are instead characterized by an obvious commonality forming a forgotten coalition in ‘one Western planetary campaign for dominance’. Thus, criticism of law is in need of careful reconsideration given that its paradoxical experience so far results from ‘the fact that the historic success of each faith-based, Christian-post-Christian campaign provides the conditions for its freezing in an institutionalized

55 Ibid: 80. 56 Ibid: 85–6.

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shape – the natural target of the next Christian-post-Christian campaign’.57 Criticism of the law consists of an antilegalism-legalism, a being-against-thelaw that ends up, whether consciously or unconsciously, as a being-within-a(new)-law. The West presents itself as the culture that is not only self-law-giving, but that also entails within itself (and more so through its standard denial of family resemblance with Christianity’s anti-legalism-legalism) a trans-legal potential. The trans-legal potential of the West can be seen as identical with the alleged trans-religious potential of Christianity. Thus the ‘choice’ threatening non-Western cultures today is that of joining the ‘free world’ (whose alleged superiority is paranoiac) or become the West’s heteronomous, unmodern and unfree enemies. However, Schütz writes: Once the anti-institutional argument, and, with it, the contributions to politics and law delivered by Enlightenment, become visible as endogenous artefacts of the cultural and institutional fabric of ‘the West’ since the beginning of its historic trajectory, this bi-partition is no longer relevant. What is generally dubbed modernity turns out to have been part of ‘the West’, not as a late achievement, but right from the start. What had been interpretable, until now, only in the idealising terms of the execution of a rationally programmed performance, finally emerges from the cocoon of its narcissistic self-misunderstanding – as evolution, revolution, ‘progress’, growth – and transubstantiates into a contingent inaugural cultural feature, different from – and thus, comparable to – other features across the board of cultures.58 If ‘we have always been modern’ (Schütz) at least since the time of Paul, then the stakes are not in arguing for the ever-narcissistic uncoupling from law as something ultra-modern with its alleged liberatory potential ‘from’ law, but in admitting that ‘the uncoupling from the law’ belongs to the very tradition that is criticized, as well as admitting that self-imposed denials of legalism are a peculiar form of Western legalism as such. This does not render all arguments against forms of oppression futile, but it reintegrates them into the cultural gamut of so-called Western modernity as a particular cultural problem or even embarrassment. Criticism of the law will appear through such recognition as a far more complex problem than has been previously realized and it is at this conundrum that its lucidity and resolve will each time be tested. If criticism of the law admits its non-transreligious and non-translegal nature and history, then the question of the law of the criticism-of-the-law becomes a truly lucid and urgent question. This means not only that the

57 Ibid: 85. 58 2005: 88–9.

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nature, history and function of law remain to be further interrogated, but also that the intertwined history of law and religion or law and faith remains a key question. If the vera religio of law has always-already claimed for itself the foundational coupling of subjectivity with legality and the vera religio of Christianity has based itself on the foundational uncoupling of subjectivity from legality, then the real question is how to reconceive Western law (and Christianity) anew as a religio simpliciter (leaving truth and the universal, for once, to themselves). The key to such an endeavour is the conception of law where mundane life and law are neither merely coupled (through absolutist sovereign claims) nor merely uncoupled (through equally absolutist critical claims). Towards the preliminary inquiry as to this manner of exposition of the juridical conditionality of mundane profane life, Agamben’s work has advanced not towards a destruction of the law or the mere institution of a new law (leaving absolutist structures intact), but towards a new understanding of life (form-of-life) and a new understanding of law (as truly bipolar: while two laws or tensional poles are internal to the law, a normative and nonnormative aspect of the same, the tension of these two aspects with the purely exterior, non-juridical realm of common use resists its fusion with the legal realm). If the form-of-life envisaged by Agamben is, each time, a life that cannot be separated from its form and vice versa, then the new understanding of law as a matter of study will be a law that cannot be separated from its life or social praxis and vice versa. But what is crucial is that in this conception of law, the law will no longer be able to answer its profane ‘embarrassment’ by reference to the partition between a higher castle and a village; a sovereign and a counter-sovereign domain that captures the whole. And the struggle with law that ensues will not be against the idea of law, but against the messengers and the functionaries that claim to represent the idea of law through a narcissistic (and allegedly self-sufficient) partition in and of the law through the incessant fabrication of the high and the low (which purports to be not only regional and boundary-setting, but also transregional and world-setting). The comedy of the fulfilment of the law is a para-legal exercise, but its success or failure depends on conceiving of the law anew against its hyperbolic and tragic interpretation (that raises the monument of law anew at the moment of its ineffectiveness). This not in order to raise a new law, but in order to turn the study of law to the common use of the law. Without reference to a transcendent the task of criticism becomes not to destroy the law but to encounter the limit of the law and to acknowledge that social praxis and the law are not characterized by a subservient relation but by a nearness in the irreparable absence of a proper relation. The common uses of the law (and of criticism) will correspond not to something consecrated anew (removing things from the sphere of human law to some self-servient transcendental realm) or to something natural that would pre-exist consecration, but to acts

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of profanation that return what was rendered sacred or natural to the free use of human beings. This requires the turn of law and of criticism towards the experience of a genuine conception of a limit (which forms no longer as a pseudo-limit between two things of the same – law and critique of the law, but as a threshold where two planes remain proximate, yet different, the juridical and the non-juridical). The Western conception of religion has, in fact, contained within itself a tensional relation between two understandings of the term: one that understands religion as religio (as what binds and unites the human and the sacred); and another, as Agamben stresses, an understanding of the term religio as deriving not from religare, but from relegere. The latter forms as an indication of ‘the stance of scrupulousness and attention that must be adopted in relations with the gods, the uneasy hesitation (the “rereading [rileggere]”) before forms – and formulae – that must be observed in order to respect the separation between the sacred and the profane’.59 This aims to ensure that the sacred and the profane remain distinct domains. To stand in opposition to religion is not to counterpose one’s disbelief or indifference towards religion or the divine (which as we have suggested are two stances that belong equally within the Western canon), but to suffer a distraction (released from the religio of norms). The act of profanation, as Agamben defines it, aims to return something that has been separated from the human sphere back into it, not by destroying the rite or law in question, but by eliminating the mythologeme that seeks to stage the relation between the power of a sacred act and the captured thing’s use in an obligatorily normative manner. The non-normative and the normative operations are not two entirely distinct domains that stand untampered in their integrity, but instead complex operations that in referring to a single object (the thing itself, it was suggested, is not other than the thing) must every time reckon with something like a residue or remnant of non-normativity in every consecrated thing and a remnant of normativity in every profaned object. This difficult reckoning is the study that pure criticism announces. This is why secularization fails to capture the meaning of the profane operation. As Agamben writes: Secularisation is a form of repression. It leaves intact the forces it deals with by simply moving them from one place to another. Thus the political secularisation of theological concepts (the transcendence of God as a paradigm of sovereign power) does nothing but displace the heavenly monarchy onto an earthly monarchy, leaving its power intact. Profanation, however, neutralizes what it profanes. Once profaned, that which was unavailable and separate loses its aura and is returned to use.

59 2007: 74–5.

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Both are political operations: the first guarantees the exercise of power by carrying it back to a sacred model; the second deactivates the apparatuses of power and returns to common use the spaces that power had seized.60 Every thing in capitalist secular spectacularization is exhibited in its separation from itself, removed from its use and subsumed into the sacred sphere of the capitalist religion as a commodity (which splits into use-value and exchange-value) that is transformed into an ‘ungraspable fetish’.61 What capitalism nullifies in this sense is common use, pure means. Acts of profanation have to encounter this nullification in every sphere and at every moment in time, but what is at stake is more complex than simply to restore something like a natural use that existed before being separated into a religious or economic sphere. Both sacralization and profanation as acts are not to be effaced, but are to encounter their limit as a threshold, wherein they are proximate and yet differentiated. The profanation of a juridicalized object (say the regulation of the use of a public space and the banning of certain activities within it) or of a commercialized object that was removed from common use, mimic the forms of the activity from which they have been emancipated, but in emptying them of their juridical and economic sense and of any obligatory relationship to an end, it opens them and makes them available to a new use, exposing them as means without an end. The complexity of such profanatory action lies in that ‘the creation of a new use is possible only by deactivating an old use, rendering it inoperative’;62 and also from the fact that after profanation the world does not appear destructed or totally new, but only slightly different. The act of profanation finds its power and contour in the irreparably profanatory power of language as pure means in which the return of every word’s use to its being-so-called, to the factum loquendi, reveals not only the sphere of pure potentiality (the sphere of pure means), but also the possibility (potenza, power) of a new use (in the kaironomia of the being-as-not-socalled ), a new experience of the word (and of an object). Every time the systems of spectacular religion, economy and law claim that something can be rightfully used only in this or that way, an act of profanation will endeavour to say that something is otherwise than it is, and that a different use of it is always possible aside from its rightful use. Criticism is more often than not complicit even in such spectacularization and reduction of use to this or that use seeking its right to be against rightfulness will undergo its very own

60 Ibid: 77. 61 Ibid: 81. See Benjamin, 1996b: 188–91 and Hamacher’s discussion in Hamacher, 2002. For a reconsideration of the notion of fetishism see Agamben, 1993b. 62 Agamben, 2007: 86.

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profanation for criticism to be returned to its common uses, to its pure means without an obligatory relation to an end, that is, to pure criticism. If the experience of criticism is perceived as more complicated than thought before, then the experience of thought can be more negligent and yet studious, more modest and yet felicitous. The only truly historical and wholly actual ‘homeland’ of humanity is what has never happened, the involuntary moment (and hence unmasterable – non-sovereign – moment) of infancy: the new.

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Index

abandonment (see ban) absolute 33–49, 259–65 Accursius 25–6, 28 actuality 34, 37, 66, 68, 143, 162, 164, 203, 205, 250, 255–6, 265, 267–7, 272–7, 281, 285, 287–90, 300 Adorno, T 210 Alberigo, G 32n69 aletheia 11n12, 213 Alexander of Aphrodisias 77–8 Alföldi, A 88n138, 90 Alloa, E xiiin2 anarchy 70, 113, 136, 141–2 angels, angelology 18, 20, 35–6, 71, 73, 85–8, 115, 181 animal, animality 68, 154, 160, 175, 191, 197–8, 206, 215–24, 227–9, 233–8, 252, 257–8 anomy (anomia) 156–8, 173n70, 186, 201 anthropogenesis 92, 183, 218, 221, 257–8 apokatastasis 179, 285 apparition 75, 210 Aquinas, T 10n9, 27, 32, 34, 45, 69, 72–4, 87, 110, 111, 211 Arendt, H 169 Arista, J M (and Moreno, A I) 230n125 Aristotle 27, 35, 41–2, 56–9, 66–72, 75, 101, 112, 154, 160, 209, 221, 224–7, 233–4, 243–5, 259, 267–71, 295, 300 Arius 56n6, 69, 70 Aufhebung 262 Augustine 21, 35, 69, 74, 99, 114 Augustus 123n103, 193 Auschwitz 173 Austin, J 116, 120 Austin, J L 188–90 authority 4, 8, 11, 14–16, 21, 25–6, 28, 42,

51, 54, 63, 65, 72, 102–4, 108, 110–16, 127, 130, 141–2, 145, 150, 185, 187–8, 190, 197, 202, 241, 246, 272, 275 autonomy 68, 99n21, 120, 142–3, 150, 240, 250, 267, 299, 304–5 Averroës 72 Bacon, F 45n113 Baczko, B 116n78 Bak, J M 122n100 Baker, E 64n52, 112n62 Baker, J H 43n105 Balthasar, H U V 89n140 ban 148–53, 156–7, 159–61, 168, 171, 173n70, 175, 237, 237–8, 244–5, 263–5, 267, 269–70, 272, 287, 292, 294–6, 301, 308 bare life x, xii, xv, xvi, 4, 91–2, 128, 132, 134, 145–83, 186, 202–3, 219–21, 227, 229, 236, 267, 269, 285, 290 Baroque 130, 139 Barth, K 89n140, 100n26 Bartleby 272–4 Baumer, L V 41n99 Benjamin, W 13, 44, 129–33, 138–40, 147, 156, 160, 163, 178–9, 208, 210, 285n7, 290n12, 291, 294, 308 Bennett, H 148n8 Bentham, J 116–17, 120–2 Benveniste, E 189, 230n129, 233, 298 bill of rights 48–9 biopolitics xv, 55, 93, 145–83, 217, 220–1 Blackstone, W 17, 42 Blanchot, M 251 Blumenberg, H 99–100 Blythe, J M 72n90 Bodin, J 40, 102–3, 106–9

328

Index

Boeckh, A 57n11 Boethius 79 Bracton 28–30, 44 Brown, G 230n125 Buriks, A A 76n102 Burkert, W 192n10 Burr, D 300n46 Cabalist 293 Calvin, J 16–19, 39–40, 43n105 Calvino, I 214 Camp 162, 169–75 Cannadine, D 122n100 canon law, Canonists, Canonist xv, 4, 9, 21–2, 33, 34, 36–8, 40, 42, 43, 48, 49, 72, 96, 110, 133, 141, 154, 162, 271, 304, 307 capitalism 131, 168, 263–4, 272, 308 Carawan, E M 193n14 chancery 42–3, 46 Christodoulidis, E 125n107 christology 64n52, 70, 97, 100n26, 113 Chrysippus 57n10, 75, 77 Church, W F 24n38 Cicero 59n23, 198–9 civil science (or legislative science) 105–10, 121 Clemens, J 230n125 Colish, M L 75n101 command 196, 202–3, 271–2, 281–3, 287, 288, 290–2, 300 communicability 246, 286, 287 conciliar, Conciliarist 32–3, 102 conditioned necessity 249, 274–6 Connolly, S 193–4 conscience 42, 229, 234 consent, consensus xii, 2, 33, 46–8, 90n144, 95, 102, 103, 110–25, 126, 130, 131, 193, 280 constituent (power) x, 81, 116, 117, 124–5, 133, 134n127, 135, 136, 138, 139, 185, 237, 256, 260 contingency xvi, 2, 34–6, 51, 76–9, 105, 116, 142, 143, 169, 246, 271–7, 282, 283, 287, 305 Copernican 175, 221, 245, 253, 291 Coras, J de 106–8 corpus mysticum 8–10, 31–2, 40–1, 111, 188 cosmodicy 179, 285 Courtenay, W J 35–6, 38 Cousin, V 106–8

Cristi, R 134n127 critical legal studies 3, 303 critique (and criticism) xv–xvi, 2, 129, 139, 145, 175–87, 239–40, 246, 250, 280–5, 288, 290, 295, 296, 301–9 Cutler, F 120n95 D’Ailly, P 32, 38 Dante 32, 174, 210, dasein 220–30, 275–6 Davies, J 16, 40, 40n94, 43–4 Dean, M 168n58 death 12, 99, 142, 148, 150–3, 155–6, 169, 173–4, 221–30 Debord, G 121, 264n58 De Carolis, M 221 deconstruction 157, 244, 277, 301 Deleuze, G 172n70, 277 democracy 84, 95, 97, 110, 121–5, 126, 130, 133, 142, 170, 187, 192, 203, 304 Demosthenes 59 Derrida, J 10n12, 138, 162, 244–5, 254, 276–7, 279, 282 Descartes 115 Dicey, AV 117, 120 dictatorship 96, 134–7 dike 179, 192, 285 Dillon, M 169n60 Dilthey, W 99n23 Dinwiddy, J 116n81 Diogenes Laertius 56n6, 75, 273 discipline 25, 168, 303–4 discretio legalis 43 discretio specialis 43 Dobbins, S K 42n103 Donoso Cortés, J 96n1 Douzinas, C (& Warrington, R) 279n1 doxology 14, 87–91, 95, 122 Duns Scotus, J 37–8, 110 Duran of St. Purcain 110 Durant, W 71–2 Düttman, A G 210, 276n86 Dworkin, R 2 Eastern Orthodox 8, 64 Eck, J 39n89 economy (modern) x, xiv, xv, 55, 56, 58, 80n120 Edie, C A 48n119 Epicurus 76, 77 equity 11, 23, 41–2, 46

Index Ereignis 261–4 ethics xiii, 1, 2, 27, 66, 70, 93, 116, 140, 174, 240, 246, 250, 254, 258, 288, 304 e¯ thos 149, 158, 252, 254, 260, 263–4, 275–6, 282, 285–8, 293 eucharist 7–17, 32, 49, 187–8, 200 euporia 275–7, 289–309 Europe 106, 122 Eusebius 70–1 experimentum linguae 252, 254 factum loquendi 247–9, 253, 256, 277, 287, 298–9, 308 faith 197–9, 210, 222 fate 66, 78–84, 257 Fell, A L 106n47 Felman, S 189–90 first philosophy 67, 72, 141, 209, 248, 274, 287 Flether, J 192–3 Florovsky, G 64n52, 69n81 force of Law 129, 138, 143, 266–7 form-of-life 179–82, 265, 285–8, 306 Foster, E R 45n115 Foucault, M 104–9, 108–9, 117–20, 156, 158–60, 163–78, 190 Fowler, W W 148 Francis of Assisi 300n46 Franciscans 34, 36, 38, 299 freedom xiv, 21, 34, 46, 75, 83–4, 89, 100, 105, 113, 115, 123–5, 170, 183, 186, 240, 246, 272, 279, 304–5 Freud, S 182 Frontisi-Ducroux, F 174 future contingent 274 genealogy 5, 56–65, 93, 98, 145, 167, 300–4 Germany 55, 96–100, 108 Gerson, J 32 Gersonides 115n71 Gestell 257 Geuss, R 101n30 Gewalt 131 Gierke, O 108 gigantomachy 137–44 glory 20, 54, 59, 64, 70, 85–93, 106, 107, 110, 114, 121–2, 141, 196, 213–14, 222, 257, 281, 283 gnosticism 82, 99, 296

329

Goodrich, P 7–17, 49, 188 gorgon 174 government xv, 4, 7, 18, 28, 30, 32, 49, 51–93, 155, 165–6, 272, 283 governmentality, neo-governmentality 51–93, 101–25, 127–36, 142–3, 145, 155–9, 166–9, 218, 257, 265–9 gramma 211, 225–6, 244–5, 253–4 Grant, M 77n108 Gratian 22, 30 Greenleaf, W H 72n90 Gregory of Nazianzus 64 Gregory of Nyssa 64 Grimm, D 122 Guattari, F 172n70, 277 Guillaume, G 297–8 guilt 23–4, 130, 132, 147, 151, 158, 160–2, 202, 229, 238, 265 Habermas, J 120–3 Hamacher, W 308n61 Hegel, G W F 82, 99, 100, 105, 107, 209, 217, 220–4, 234, 242, 247, 250, 259, 261–3, 296 Heidegger, M 10n12, 69, 82, 99n23, 141, 181, 187, 201, 207–9, 213, 220, 221–35, 242, 247, 257, 261–4, 275, 282 Heller-Roazen, D 208n58, 230n125 Heraclitus 262 Herveus Natalis 110 heteronomy 303–4 Heylin, P 40n95 Hippolytus 61–2 historiography 175–83 history 58n22, 65, 71, 97, 99, 100n29, 131, 175–83 Hobbes, T 98, 101–2, 106, 112, 114, 115, 116, 146 homo alalus 219 homo iustus 202 homo sapiens 202, 217, 253 Hooker, R 16–17 horkos 192–9 Hostiensis, H de S 34 Howell, T B 44n111, 44n112, 47n118 humachination 255, 258 human rights 123, 126, 147, 153n25, 203, 259, 284 Husserl, E 223, 242 hypokeimenon 240, 243 hypostasis 12, 69–71, 200, 240, 245, 284

330

Index

idein 213–15, 283 ideology 6, 118, 269 immanence (plane of ) 277 imperativity 203 indecision 171 infancy 18, 180, 227, 252–4, 309 inoperative, inoperativity 88, 91, 158, 237, 257, 297, 300 Investiture (Contest) 9, 22, 26 iustitium 137 Jacob, E F 32n70 Jacobs, L R (& Shapiro, R Y) 122n100 Jakobson, R 230, 232 John of Paris 33 Jones, W J 43n106 justice xi, 2–3, 12, 16, 17, 23–8, 30, 35–6, 40, 42, 45, 47, 58, 59, 77, 113–15, 131, 149, 179, 193, 198, 212, 240, 279–309 Justinian 22, 27, 60, 102 Kafka, F 86, 294 Kairos, kaironomia 172n70, 294–301 Kant, I 175, 178, 208, 223, 233, 242, 259 Kantorowicz, E 8–10, 17–33, 49, 88n138, 90, 151, 173 katechon 100, 100–1n29, 131 Kelsen, H 96, 283–4 kenomatic 133–4 kenosomatic 134 Kerényi, K 148 Klaniczay, G 122n100 Koepnick, L P 130 Kojève, A 217–18, 247 Koyzis, D T 64 Lafont, C 120n94 Lagaay, A xiii Lange, L 148 Laursen, J C 120n94 Law of law 1, 3, 4, 6, 12, 14, 26, 28, 37, 47, 50, 52, 82–5, 87, 92, 115, 128, 137, 142–3, 153n26, 161, 185, 200, 202, 209, 237–8, 240–1, 250, 254–6, 259–60, 267, 279, 282, 284, 287–8, 291, 300 Legendre, P 21n35 Leibniz, G W 75–7, 114–15 Lévi-Strauss, C 136, 149 Lewis, E 29 linguistics 201, 230, 241, 247–59, 285, 294 Locke, J 114–16

Löwith, K 99, 100 Luther, M 11n13, 39, 39 Lycurgus 192 machination 257 Maine, H 117 Maistre, J de 105 Malebranche 114–15 Marin, L 188 Marsilius of Padua 110 Marx, K 296 Meier, H 98n19 Meikle, S 56n6 Melandri, E 98n14, 180–1 Melville, H 272n76 Mendelssohn, M 98n20 mere life xvi, 159–62, 173 214, 236, 269 Meriam, C E 108n51 Mesnard, P (& Cahan, C) 173n72 messianic 60, 91–2, 129–30, 132, 140, 214, 216–18, 281, 289–309 metaphysics xii, 66–9, 72, 125, 141–4, 155, 186, 207–9, 215–16, 221–5, 227–8, 232, 235–6, 255, 259, 262–3 Meuter, G 98n19 Michaux, H 209 Mikalson, J D 192n9 Milner, J C 247 miracle 129, 139, 251 modernity 197, 218, 256, 260, 264, 283, 304–5 Mommsen, T 148n8 monarchians 63 monarchy 31, 40, 46n117, 58, 63, 96–7, 100n29, 102, 307–8 Montesquieu, C de S 113–15 Moorman, J R H 300n46 More, T 14–16, 41 Moscati, A 221 multitude 32, 50, 86, 111 Muselmann 173–5 Nadler, S 115n71 Nagle, D B 56n6 Nancy, J-L 153n26, 156, 251, 255–9 natural Law xii, 1, 2, 22–30, 33, 42–4, 47, 101, 111–12, 146, 195 negativity 50, 82, 162, 186–7, 197, 207, 211–12, 221–30, 233–8, 251, 264, 265, 268, 284, 300–1 Negri, A 123–4, 267n64 Nicholas of Cusa 33, 205

Index Nietzsche, F 69, 175, 178, 180 nihilism 186, 213–15, 236, 241, 245, 251, 257, 262, 264–5, 271, 274, 292, 294 nomophilia 1 nomos 78, 132, 140, 146–7, 153, 156, 162, 172, 172n70, 196–7, 201, 300–1, 303–4 normativity 162, 280, 301, 307 nothing, nothingness 129, 186–7, 206, 214, 220–1, 224, 226, 230, 234, 235–6, 251, 255–7, 260, 263–4 Oakley, F 33–4, 37, 39–40, 43–5, 48, 83 oath 187–202 officium 19 oikonomia 51–93, 112, 123–4, 127, 134, 135–7, 141–3, 156, 165–8, 179, 187–8, 200, 204, 212, 218, 220–3, 240, 245, 250, 256–7, 265–6, 271, 285 omnipotence 4, 33, 35, 39, 49, 72–3, 73n93, 114–15, 131, 271 ontotheology 201–2, 208–9, 266 open, the 216–17 operational time 297 Oresteia 192 Origen 69–70 Osborn, E 63n45, 63n49 Ostrogorsky, G 64n52 ou mallon 273 Overbeck, F 178 Ozouf, M 195 pagan, paganism 62, 74, 151, 195 palingenesis 179, 285–6, 288 Panormitanus 33 paradox 125 Patch, H R 79n116 Paul, the Apostle 59–61, 87–8, 100, 113, 204, 292–306 performativity 15, 189–91, 201 Peterson, E 85–6, 100n29 phenomenology 176, 233 Philo 58n21, 197–9 Plastino, N 221 Plato 57–8, 74, 172n70, 240–5, 286 play 262 plenitudo potestatis 37, 72, 134 pleroma 292 Plowden, E 18n27, 46 Plutarch 78n113, 79–80 political economy 119 political theology 50, 54–6

331

Pollock, F 42 Polybius 58n22 Pompeius Festus 147 Pope Boniface VIII 31 Pope John XXII 30 positivism 274, 280 Post, G 36n82, 101n30 potentia absoluta (and potentia ordinata) 271–3, 35–45, 72–3, 82, 113 potentiality 239–77 potestas 25n42, 32, 39, 62, 72, 103, 108, 112, 150, 256 pre-law 148, 177–8 principium 65, 72, 141–2 Proclus 79–80 Prodi, P 194–5 profane, profanity, profanation 86, 90, 98, 150, 176–7, 179, 197, 280–309 progress xii, 3, 22, 99, 105, 143, 145, 162, 169, 179, 180, 186–7, 193, 195, 203, 239, 256–7, 289, 296, 304–5 providence 73–81 public opinion 90n144, 95, 109, 117–23, 196 Quintilian 59 quodlibet 179, 285–7 Rasch, W 126–7 Ratramnus 8, 31 Rawls, J A 2, 116, 123, 283 reason of state 44, 47, 108–9, 119, 169 res gestae 123n103, 180 res publica 133 Reumann, J H P 56n6 rhetoric 58–60 Riley, P 112–14 Rist, M 75n101 Roman Law 21, 26–7, 38, 101, 107, 147 Rommen, H 111n60 Rosen, F 116n81 Rothenbuhler, E W 122n100 Rousseau, J-J 113–16, 123 Rudavsky, T 73n93 Ruland, H-J 77n108 Rumble, W E 116n82 Russo, G 221 sacratio 148–50, 191, 195, 199 sacrifice (sacrum facere) xi, 150, 236–7, 265 Saintsbury, G 59n27

332

Index

Salvian of Marseille 74 Savigny, F. K. von 107 Schelling, F W J 69, 100, 105, 107 Schiffers, J xiii Schmidt, M 57n11 Schmitt, C 96–101, 121–4, 129, 131–9, 160, 172n70, 191, 241, 271, 283 Schofield, M (& Striker, G) 75n101 Scholem, G 290n12, 291, 294 Schürmann, R 125n109, 126, 141–2, 223 Schütz, A xii, 53–4, 145, 155–6, 164, 170, 176, 283, 302, 303–7 secularization, secular xiv, xv, 4–10, 12, 21–4, 26, 31–3, 53–6, 81, 95–143, 145, 148–9, 172, 176, 194–5, 197, 236, 296, 301, 307–8 Sharples, R W 77n108, 78 Shaw, J 46n117 shifters 230–7, 248 Sieyes, E J 132, 139 signature 11–12, 14, 31, 72, 90, 97–8 signifiance 259 singularity 128, 252, 286 Skinner, Q 101–3 Smith, A 80, 119 social contract 16, 33, 112, 116 Sommerstein, A H and Fletcher, J 192n8, 193 sovereignty xiv, 4, 6, 12–13, 19, 25–6, 36, 40, 50, 51–93, 95–144, 145, 146, 149, 152–3, 156, 158, 160–9, 181, 185, 194, 199, 202, 209, 218, 241, 266, 267, 269, 271, 279, 290–1, 292–3 spectacle 121–2, 155, 159, 174, 264n58 Spinoza, B 72, 98n20, 125, 277n89 Spurr, J 194–5 St. German, C 15n20, 41n101, 42n104 state of exception xi, xv, 34, 90, 123, 125, 128–42, 147–8, 150, 155, 160, 164, 170, 172, 173n70, 176, 191, 194, 200, 219–20, 241, 244, 266–87, 275, 281, 283, 290–3, 300 Stephenson, C (and Marcham, F G) 49n121 Stimmung 227 Stoics, Stoicism 33, 57–9, 61, 62, 63, 74–8, 99, 209, 210, 244, 297 Stolleis, M 108n51 Strachan-Davidson, J L 148n8 Stroup, J M 96n3, 97n13 Stuart trials 44

study 289, 306–8 Suárez, F 111 substantia sine qualitate 201, 287 survival 169–75 Tackett, T 195n20 Taubes, J 100n26, 139n142 taxis 57–9, 64, 68, 72, terror xv, 52, 130, 131, 168, 275 Tertullian, Q S F 61–3 Teubner, J 279 theocracy 87, 112 theodicy 73, 75, 80, 100, 179, 285 theology xiii, xiv, xvi, 3, 5–7, 11, 16–17, 25–26, 33, 50, 54–5, 61, 64, 66–7, 69–73, 75, 77–9, 81–5, 88–100, 101n29, 114, 128, 131, 135, 136, 137, 139, 141, 142, 143, 149, 151, 161, 186, 188, 194, 202–5, 208–14, 218, 232, 240, 244–5, 259, 265–8, 270, 283 Theuws, F & Nelson, J L 122n100 Thillet, P 77n108 thing-itself 240–6 thingness 187 Thompson, I 209n61 Thurot, C 230n126 Tierney, B 25, 26n47, 32n70, 36n82, 110 time 235, 241, 291–309 Torah, the 293 trace 245, 276–7 trinity (doctrine) 61–91 200, 205 Tuck, R 116n80 Turner, V 122n100 utopia 155, 280, 287, 288, 292 Villoslada, R G 32n70 violence x, xii, 2, 5, 13, 38, 96, 129–33, 138–41, 146, 150, 159–60, 167, 179, 192, 215, 236–8, 245, 265 vitae necisque potestas 150 Vitoria, F 112 vocation 20, 37, 84, 86, 248, 262, 289, 299–300, 305 Volkmann, R 59n26 Watanabe, M 33n71 Watson, A 25n42 Weber, M 96–7 Weber, S 129n115, 139n142 Weimar 96, 135, 171

Index will (and general will) 25–26, 28, 32–7, 39, 46, 59, 62, 66, 69–70, 73, 75–82, 84, 104–7, 111–16, 119, 123, 125, 130, 170, 171, 182, 258, 266, 268, 271–3 William of Ockham 110 Wittgenstein, L 212, 225n109, 251

333

Xenophon 56n6, 57 zero degree 155–6, 159–60, 161–2, 181, 267, 293 Zoepfl, H 108n51 zoon logon echon 222–4