Agamben's Homo Sacer: Bare Life and Its New Politics  

Hong Chul-ki (Graduate Student, Seoul National University)

In Michael Hardt and Antonio Negri’s highly controversial book Empire[2], the authors argue that sovereignty is not in decline or vanishing, despite of the fact that sovereignty cannot be securely monopolized by each nation-state, but exists in the transition to the global juridico-political system that they name ‘Empire.’ This line of argument has been stirring the ‘global’ debates[3] regardless of political sides, the left or the right. No matter what stance we take in them, it becomes much clearer that the United States after the second Iraq War is not a globally-universal sovereign or (rather) imperial, but merely a single hegemonic – paradoxically hegemonic when we consider the definition of ‘hegemony’ – nation-state which predominantly depends on military power. Certainly, the US which had been assuming itself as world police, lost its aura of the Humanitarian Intervention on its part as well as its international legality. If things continue this way, are we regressing, from the temporary state of exception, into “the state of normality” where the competition among powerful imperialist nations sustains the international capitalism and consequently brings us to the catastrophe of life? Or if that is not the case, then are we confronting the peculiar situation that David Harvey calls “New Imperialism”?[4]

If it is true that we are standing in New Imperialism which is neither imperial nor imperialist, we cannot help inquiring the meaning of the adjective, ‘new.’ Fast growing attention in a German conservative constitutional lawyer, Carl Schmitt, gives us one of clues to seize the real face of this newness. Schmitt, on the one hand, picks up interest from the public owning to the fact that he is one of the intellectual origins of Leo Strauss whose spiritual proteges are the Neocon in the Bush Administration.[5] However, even without the mediation of Strauss’s political philosophy and the achievement of its advocates, Schmitt’s theory of sovereignty directly contributes to the understanding of the current juridico-political situation for fundamental reasons. In fact, Carl Schmitt created a genre in jurisprudence. It is decisionism[6], whose essential statement is ‘the sovereign is the one who decides upon the state of exception.’ In the Republic of Korea, decisionism has been known as one of government-patronized sciences that enjoyed a certain period of history by taking the charge of legitimizing military despotism and authoritarian dictatorships. Nevertheless, it repeats again with the United States as the center of empire at the present. We can find the figure of Schmitt’s sovereign in the Bush administration, which exercises extra-constitutional measures such as ‘Patriot Act’ under the ‘homeland security law’ or the ‘emergency measure.’ We are also witnessing that this poses a tremendous threat to the democracy even in the United States. Here, we should point out that the state of exception implies situations of potential danger, which cannot be resolved by laws applied to normal situations. Furthermore, decisionism believes that only the sovereign can decide when the state of exception is and what is to be done in the confrontation of the state of exception. While the Schmittian sovereign coped with the domestic emergency of Weimar Republic by taking the emergency measures – or at least, Schmitt wished the sovereign could have done that way – the American sovereign executes emergency measures whose effectiveness goes beyond the national boundary. Of course, sovereign in the United States cannot abandon the formal boundary of nation-state itself. But the legislation of the United States’ for anti-terrorism such as the ‘Patriot Act,’ sanctions the limitless detention of a terror suspect and its application extends to affect the lives of non-US citizens. It thereby questions the different dimensionality of the issue from that of a war – the attack of one sovereign state against the other – that has been a main act-model for imperialistic world order. Thus, since the 9/11, globally-haunting specter of Schmitt reminds us of the actuality that on-going political disputes converge not on the nation state but on sovereignty itself.

In conjunction with vitalizing the prevailing endeavor to reinterpret Schmitt’s juridico-political thoughts in contemporary political situations, Giorgio Agamben is one thinker of our time who attracts us to the problem of sovereignty taken as an essential theme in his political philosophy. In his trilogy[7] under the title of Homo Sacer, Agamben tries to overcome the deadlock of de-politicization which postmodern political philosophy has been stuck in. Following Schmitt, Agamben defines sovereignty as a ‘paradoxical concept.’[8] This definition is theoretically opposite to the conventional explanation of sovereignty. According to a common definition, sovereignty is the supreme authority in a domestic sense and it is also a territorially-exclusive jurisdiction in an international sense. Moreover, this definition is based on the task of unifying the order of domestic politics and of constituting the homogeneity of people. However, even if we do not insist on mentioning the tendency that the border between domestic politics and international politics has been blurred, the inability of dealing with the complex problems which are inherent in the concept of sovereignty itself has been pointed out as the limit of the schoolbook understanding of sovereignty defined above. For instance, in the book Sovereignty published by a scientist in international politics-Stephen Krasner, he argues that there is a gap between the theory of national sovereignty and its actuality, which he describes as ‘organized hypocrisy’.

Although the principle of reciprocal recognition of sovereignty cannot historically disappear or collapse, the principle of territorially exclusive sovereignty that we find in Peace of Westfalen, the so-called ideal type of the inter-state system has been occasionally infringed.[9] According to an American historian - Edmund Morgan, the problem of sovereignty cannot be confined only to international relations. In his book titled Inventing the People, he tracks the history of popular sovereignty from the British Revolution to the American Revolution. Morgan elucidates that the concept of popular sovereignty itself has been a ‘fiction’ even from its historical beginning.[10] His account is that the concept of popular sovereignty indicating the principle of monopoly in sovereignty, in fact, presupposes the division of the nominal sovereign – that is, people themselves – and, the actual sovereign. To sum up, the concept of modern sovereignty implies vagueness and indeterminacy in terms of the horizontal dimension between each nation state and the vertical dimension between both the political elite and the people.

However, the paradox of sovereignty raised by Schmitt and the one raised by Agamben both touch upon the more fundamental part of the concept of sovereignty than the discrepancy between its ideal type and its empirical actuality. Rather, Schmitt and Agamben emphasize that sovereignty has its essential double, meaning the sovereignty can be understood necessarily within its own tense relations with the attack upon itself – or with the void of sovereignty itself. Thomas Hobbes, one of precursors to Schmitt’s political thoughts, precisely proposed the foundation of political power, the one given by the general consent of subjects, not ordained by God. He was already a post-medieval forerunner even before such thinkers as Jean-Jacques Rousseau or Emmanuel Siyes set up the system of popular sovereignty. The general consent of subjects, in so far as it means ‘unanimity’-what we call the zenith of democracy-, grants the absolute authority to the sovereign. It does implicitly mean, however, that sovereignty itself cannot help being overthrown when the agreement falls apart. It should be underscored that this revolutionary result, which is obviously in complete opposition to Hobbes’ theory of sovereignty is inherent in Hobbes’ ideas about sovereignty. Therefore, it is true that Hobbes’ sovereign can order his subjects to go to war and to sacrifice them in war.[11] Nonetheless, at the same time, the sovereign, who has lost the agreement from the entire subjects, does not become a tyrant who still reigns even without any legitimacy, but becomes the public enemy of all his or her citizens.[12] Furthermore, in Social Contract, Jean-Jacques Rousseau develops this logic, and it culminates in the thesis that one who does not belong to the general will is a ‘foreigner.’[13] It says that, if general will leaves the sovereign, she, who is entitled to absolute power, cannot avoid the destiny of becoming the enemy against the political community. As Hobbes can contend the absoluteness of sovereignty by, repetitvely, holding the fear of the potential disorder as the ‘state of nature,’ sovereignty is inseparable from the anxiety about the danger (or the void) of sovereignty itself. Consequently, Schmitt determines sovereignty as a ‘borderline concept,’[14] which is quite different from our conventional understanding of sovereignty simply as supreme power or authority in a formal juridical system. In other words, sovereignty sets up the relation between the established legal system (civilized state) and the void of legal system (state of nature) by standing on their border. For instance, a president guaranteed with emergency powers in contemporary political world, according to Schmitt, is the sovereign dictator who decides, on one hand, belonging to the interior of legal system, when-is-the-emergency – in other words, when the system should be suspended- and who decides, on the other hand, what-should-be-done, which is not specified in and thus applied beyond the statutory law. In this sense, the sovereign also has the right to the exterior of the legal system.[15]

However, although this formula of modern thinker is effective in expressing the paradox of sovereignty itself, it is still problematic in that it cannot expose the origin of the paradox. Hobbes and Rousseau successfully theorized the ideas on modern sovereignty but they cannot excavate the very bottom layer of its paradox since their thoughts are always conditioned by the existence of modern states and inter-national system. ‘Political enemy’ in modern political science is therefore identified with the foreign that is comprised of the publicized citizens in other countries and that is in fact, necessarily claimed. If not, war would no longer be something monopolized by the State.[16] For those modern thinkers, the recognition of danger in the modern nation states and in turn, the legitimization of modern political systems is the most important task to nullify the danger. That is why they failed to disclose the paradox of sovereignty as a pure form. Paying attention to the limitation stated above, Agamben suggests that we refer to a whole history of western politics beyond the modern political culture in order to understand the logics of sovereignty. In Aristotle’s distinction between bios (teleologically qualified life) and zoe (life as fact), he finds the originary aporia of western politics in which the paradox of sovereignty is based. Agamben’s interpretation states that Aristotle defines the true political community only by rigorously distinguishing between two forms of life: bios and zoe. In Aristotle’s thoughts, according to Agamben, bios indicates “the form or way of living proper to an individual or a group” and zoe expresses “the simple fact of living common to all living beings (animals, men, or gods).”[17] This distinction means, on the one hand, the exclusion of “mere life” from polis, as much as possible, in an attempt to overcome it. On the other hand, this paradoxically implies that polis cannot help including “mere life” again within itself because we cannot negate that life in the polis is also living life itself. At this point, Agamben argues that we need to look at Aristotle’s “zoon politikon” from the side of zoe, not from that of bios, to arrive at the core of paradox of sovereignty. The logic of sovereignty or its system cannot be reduced to antagonism between the different polis’ members, which the friend-enemy distinction represents. Rather, the paradox of sovereignty entirely reveals itself only by the existence of the ‘isolated and self-sufficient life,’ which refers to the life of absolute exteriority without belonging to any polis and therefore, cannot be described but as ‘God or beast’ in a well-known phrase in Aristotle’s Politics (1253a25). Aristotle’s fluctuation, in the viewpoint of ‘politically qualified life,’ between the best possibility (God) and the worst (beast) in approaching the uncanniest of form of an excluded life, corresponds to the emotional reaction of sovereignty and legal order to that form of excluded life. That is because this human being cannot be classified as enemy insofar as it doesn't belong to any other polis and thus marks the absolute limit and the outside of the juridical order (and the sovereignty itself). The very absolute limit of legal order is ‘bare life’ or ‘naked life’ which Agamben tires to present to us as the true political condition for human life. It is bare life, not the vacuum where legal effectiveness is perfectly suspended, that sovereignty should face as a borderline concept of legal order in Schmitt’s thoughts.       

Agamben symbolizes the form of life that is extremely excluded from the legal order in the case of homo sacer in the ancient Roman law. It literally means ‘sacred human’ but it is barely helpful in grasping the entity of homo sacer. In fact, homo sacer denotes human life that is doubly banned from both the religious order and the secular order. Since it is banished from religious order, it does not have any status for ius divinum. It thus means that homo sacer cannot be the object of ‘sacrifice.’ In terms of ius humanum, at the same time, because there is no content to designate its status, either, one who kills homo sacer cannot be punished.[18] Unlike Aristotle who may still give pastoral attributes to pure life, we come at the reality, through Agamben’s remarks on homo sacer, that even a little chance of fantasy of pure life is not permitted to us now. Life outside law is never the life filled with peace and liberty, free from law. It is the life on the extreme of law, deprived of every capability and right, whose life and death can be determined by anyone. In this form of life, the content of law is suspended and only the force of law as violence is active. ‘Force of Law,’ a lecture given by Jacques Derrida in 1989 in New York City should be considered as a text - whose focus on the fundamental and necessary relation between law and violence in the interpretation of violence in Walter Benjamin’s essay ‘Critique of Violence’- offers an important motive for understanding the relation of law, violence and life. Derrida’s lecture, relying on Benjamin’s concepts, opens a new realm of recognition that, in relation to law, all violence founds (revolutionary or law-making violence) or preserves (law-preserving law) the law.[19] First and foremost, it should be noted that Derrida (and Benjamin)’s argument stresses the necessity of taking violence as means within the law, not on the very opposition to the definition of law as the exclusion of violence. To understand the necessity implied above, violence serving the law as the ends is named “force of law.” Basically, Agamben appreciates the direction of Derrida’s reading of Benjamin, specifically, in terms of approaching the paradox of sovereignty by pointing out the paradoxical conjuncture of law and violence. But Agamben fundamentally criticizes Derrida in that he, in Agamben’s interpretation, was not successful in dealing with the relation of legal violence and pure life.[20] In other words, in Agamben’s view, Derrida was able to point at the double exteriority of law by attending to violence but considered the relation of law and violence only as a vicious cycle and accordingly, left life as a ghost wandering around that vicious cycle, not as a concrete body.[21] Agamben adopts Michel Foucault’s bio-power and bio-politics in an attempt to overcome the limit in Derrida’s investigation of the relation of law, violence and life. Unlike Derrida and Agamben, Foucault prefers power to law or violence and in particular, introduces the concept of bio-power and bio-politics in order to analyze how power historically relates itself to law in the aspect of sexual pleasure.[22] Even though Foucault does not exclude the law – which is, in fact, the essence of power- from his analysis, he obviously resists understanding power from the standpoint of the model of sovereignty and law. If we took the lenses of the model of sovereignty and law to look at the relations of power and life (pleasure), everything would be reflected as the relation between suppression (prohibition) and allowance. Therefore, we would not catch the complex mode of the relations of power and life – especially, the relentless overlapping and subversion of domination and resistance, temptation and production.[23] To summarize his point, sovereignty as ius vitae ac necis is “the right to take life or let live”[24] and peculiarly functions as the right to exercise plenary power over life by means of death. It was replaced by capitalistic bio-power which dramatically transformed the paradigm of power in 19^th century. That is the ‘power’ that governs human life as species. On the contrary to sovereignty, power is the right that governs and dominates life only by “letting die and making live”[25] or “fostering life or disallowing it to the point of death.”[26] Agamben completely approves Foucault’s position in that the concept of bio-power, in its essential part, regards human life as the most important object of power and assures that life is not only the object of power but also of the subject. But Agamben does not give up the model of sovereign power as sovereignty in juridical sense that Foucault tries to exclude methodologically. That is because Agamben strongly believes that we can insistently push the union of law and power into its extremity; which is the sovereign power that activates the original exclusion and inclusion of bare life. Extending this, more significantly, this divulgement of bare life is the only way to make sovereign power confront the absolute impossibility to sustain its legal prohibition and allowance and its right to “take life or let live.”[27]      

The ideal of modern civilization is well brought out in Hobbes’s theory of natural rights and can be summarized as the self-preservation of human beings and the protection of “life pure and simple.” From this point of view of natural rights, accordingly, the greatest sin is ‘death.’[28] The right to life, which is idealized as the inviolable right by liberalism, precedes the absoluteness of authority of the modern sovereign state, which, in fact, should be minimized in order not to infringe this right and, should function only within the aim of maximizing its actualization. The unique characteristic of modern democracy, which differentiates from classical democracy, is that “modern democracy presents itself from the beginning as the vindication and liberation of zoe. At this moment, furthermore, modern democracy’s specific aporia is revealed to us. That is the fact that “life pure and simple” calls for “freedom and happiness” at the point of subjecting itself to sovereignty.[29] It is true that modern liberal democracy claims sovereignty and nation state in order to liberate the pure life of individual from the danger in the natural state. Yet at the same time, there is the enforcement of sacrifice on individuals from the State. And, regarding this, Schmitt addresses “[to] compel him to fight against his will is, from the viewpoint of the private individual, lack of freedom and repression.” “All liberal pathos turns repression and lack of freedom. (…) What liberalism still admits of state, government, and politics is confined to securing the conditions for liberty and eliminating infringements on freedom.”[30] If that is the case, is it possible in modernity, whose conspicuous expression is liberal democracy, to trust that “life pure and simple” can expect its ‘human rights’ to be secured by the State and the paradox of sovereignty can be dissolved? As already discussed, it should not be underestimated that the right of the modern can be guaranteed only in so far as s/he is a public member of a particular nation state. The modern, when it comes to its ideal type, should be categorized as a friend of the nation state that I belong to or as a friend of other nation states and hence, my enemy. Carl Schmitt underscores this and, according to his view, is the responsibility of the sovereignty to maintain and secure this.[31] The paradox of sovereignty is not still resolved since human rights are valid only as the rights of citizens and, bare life, which might exist as a rare exception to the law, is now totalized in the sway of politics presupposing nation states in a modern sense that is spread over the globe.[32] This situation, that is, the ‘totalizing inclusion’ of ‘extremely excluded life,’ which exercises the double violence to mere life, determines law and politics since the modern times. It is secretly preparing teleology for totalitarianism which is about to show up alongside the danger of modernity.[33] 

Agamben finds the contemporary figures of homo sacer or bare life in the case of victims who were pulled to Nazi’s concentration camps and of the Guantanamo detainees.[34] Perhaps we can add the victims from Samchung gyoyukdae (Samchung revival camp) to this genealogy. Those killed during the Holocaust were not sent to the concentration camps after the Weimar Constitution had been replaced by the new constitution of the Nazis. The Presidential Decree for the Protection of the People and the State (Verordnung zum Shutz von Volk und Staat) of 28 February 1933 and the Act for the Removal of the Threat to the People and the State (Gesetzes zur Behebung der Not von Volk und Staat) of 24 March, that is, so-called “Enabling Act (Ermachtigungsgesetz)”, which characterized the whole system of law during the Nazi period only suspended the effectiveness of Weimar Constitution. And, during this indefinite suspension of the entire law, ruthless violence was executed against human life. In the same way, Guantanamo detainees are legally permitted to be detained for an indefinite period without indictment or trial. Their cases manifestly show the paradox of sovereignty in post-modern times when exceptional violence of law becomes ‘the norm.’ But Agamben’s observation on their lives does not mean to hold the true mirror up to the extreme tragedy of life (the wretched extreme of zoe.) To be sure, it is irrefutable that their lives lie in the extremities of life. However, owing to the very fact that their lives are extreme, they also drive the paradox of sovereignty, to the utmost and finally, the limit of sovereign power or its crisis comes to light in pure form. Ultimately, Agamben makes a remarkable effort to assure us of the irreversibility of historical transformation that both our lives and this life have arrived at the most-extreme-edge where ‘exclusive inclusion’ between law and life can move on. We cannot actualize the normality of modernity, which perfects itself ‘over’ the state of nature. And it is much less possible that we can achieve the mythical recurrence to “beautiful days” of pure life.[35] For the very reason, ‘we, the bare life’ truly have to invent political acts and exercise them. ‘Now’ is the timely moment when we must do political acts in urgency. Agamben’s criticism on Foucault, which points out that Foucault did not apply his analysis of bio-politics to concentration camps and totalitarianism, should not be understood as Agamben’s indication of Foucault’ omissions or defects.[36] Instead, Agamben’s argument on the convergence of liberal democracy and totalitarianism in terms of their teleology should be read as a historico-political apparatus which spurs us to make a political decision rather than as judgment on the fact. 

  [1] This is the revised version of an article which was originally published with the title of “The Global Sovereignty and Democracy of 21st Century: What Lesson Giorgio Agamben's HOMO SACER teaches us?” in Yonsei Graduate School Bulletin (27 August 2006) See <http://www.kyosu.net/news/articleView.html?idxno=10960>

[7] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998); Remnants of Auschwitz: The Witness and the Archive, translated by Daniel Heller-Roazen (New York: Zone Books, 1999); State of Exception, trans. Kevin Attell (Chicago: The University of Chicago Press, 2005).

[8] Agamben, Homo Sacer, pp.15-29.

[9] Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999).

[10] Edmund Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W.W. Norton & Company, 1988).

[11] Thomas Hobbes, Leviathan, XXI.

[12] Thomas Hobbes, De Cive, VII, 3.

[13] Jean-Jacques Rousseau, Du Contrat Social, IV, 2, 6.

[14] Schmitt, Political Theology, p.5.

[15] Ibid. pp. 6-7.

[16] Note that Schmitt distinguishes the authentically political enemy “must be compelled to retreat into his borders only” from the depoliticized and moralized foe “must not be defeated but also utterly destroyed” from this standpoint(Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: University of Chicago Press, 1996), p.36).

[17] Agamben, Homo Sacer, pp.1-2.

[18] Ibid. p.73.

[19] Jacques Derrida, “Force of Law: The “Mystical Foundation of Authority”,” Deconstruction and the Possibility of Justice, eds. Drucilla Cornell et al. (New York: Routledge, 1992), pp.3-67; Walter Benjamin, “Critique of Violence,” Reflections: Essays, Aphorisms, Autobiographical Writings, ed. Peter Demetz (New York: Shocken Books, 1978), pp.277-300.

[20] Agamben criticizes Derrida in that Derrida recklessly identifies Benjamin’s “pure violence,” which is no longer violent violence by suspending itself to be means for the law, with Nazi’s final solution toward the Jewish. (Agamben, Homo Sacer, p.64).

[21] Agamben, State of Exception, p.64.

[22] Michel Foucault, The History of Sexuality: An Introduction, Volume 1, trans. Robert Hurley (New York: Vintage Books, 1978).

[23] Ibid. pp.3-13, 135-159; Michel Foucault, “Society Must Be Defended”, Lectures at the Collège de France 1975-1976, trans. David Macey (New York: Picador, 2003), pp.23-40.

[24] Foucault, The History of Sexuality, p.136; “Society Must Be Defended”, p.240.

[25] Ibid. p.241.

[26] Foucault, The History of Sexuality, p.138.

[27] Agamben, Homo Sacer, p.6.

[28] Leo Strauss, “Notes on the Concept of the Political,” in Heinrich Meier, Carl Schmitt & Leo Strauss: The Hidden Dialogue, p.100.

[29] Agamben, Homo Sacer, pp.9-10.

[30] Schmitt, The Concept of the Political, p.71.

[31] Therefore, refugees “by breaking the continuity between man and citizen, nativity and nationality, (…) put the originary fiction of modern sovereignty in crisis.”Agamben, Homo Sacer, p.131.

[32] Ibid. pp. 119-125.

[33] Ibid. p.10.

[34] Agamben, State of Exception, pp.3-4.

[35] Agamben, Homo Sacer, p. 11.

[36] Ibid. p. 4, 119.