In Homo Sacer Agamben defines the ‘logic of sovereignty’ in Schmittian terms as the decision on the exception (Agamben 1998, pp: 15–29). Sovereign power is realized in the state of exception and the state of exception is the topos of sovereign power. It is only by means of suspending itself in the exception that law can get access to life. By suspending its content and revealing itself as pure force, legal norm becomes indistinct from fact and can then graft itself onto life in its sheer facticity, stripping it of all its positive forms. In Homo Sacer and State of Exception Agamben uses the notion of state of exception in two related yet importantly different senses. On the one hand, he follows Schmitt’s understanding of the decision on the exception as a sovereign act par excellence. The Schmittian state of exception is by definition distinct from a normal state and derives its very force from the rupture with the normal state: ‘In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition’ (Schmitt 1985, p. 15).
On the other hand, Agamben repeatedly highlights the tendency that was not explicitly addressed by Schmitt, even as it certainly characterized the period in which he was writing, i.e. the expansion of the state of exception to engulf the normal state itself, so that exception becomes the norm and thereby is no longer distinct from it. Contemporary examples of this indistinction are numerous, ranging from the expansion of administrative regulation that sidelines parliamentary procedures to wars and military operations undertaken in blatant disregard of international law. ‘The normative aspect of law can thus be obliterated and contradicted with impunity by a government violence that—while ignoring international law externally and producing a permanent state of exception internally—nevertheless still claims to be applying the law’ (Agamben 2005, pp. 85–86).
The state of exception is thus at once a violent act of breaking with the norm, which defines sovereign power, and the new norm itself, insofar as such ruptures have become ever more frequent and, as it were, regular. This is why Agamben is able to argue that the states of emergency declared in Italy and elsewhere during the pandemic were at once something radically new and merely yet another illustration of that to which we have already become accustomed. ‘[What] the epidemic is making clear is that the state of exception, which governments have for quite some time accustomed us to, has finally become the norm. More serious epidemics have happened in the past, but nobody ever dared declare for that reason a state of emergency, which keeps us from moving like the present one does’ (Agamben 2021, p. 18. Emphasis added). The conjunction of the old and the new, the familiar and the unprecedented, is a well-known argumentative strategy in Agamben’s work and was criticized by, among others, Jacques Derrida:
Agamben, giving nothing up, like the unconscious, wants to be twice first, the first to see and announce, and the first to remind: he wants both to be the first to announce an unprecedented and new thing, what he calls this ‘decisive event of modernity’ [the birth of biopolitics], and also to be the first to recall that in fact it’s always been like this, from time immemorial. He is the first to tell us two things in one: it’s just happened for the first time, you ain’t seen nothing yet, but nor have you seen, I’m telling you for the first time, that it dates from year zero. (Derrida 2009, p. 330)
The state of exception perpetually keeps becoming the rule, every time as if for the first time, so that it brings to clarity what has been happening ‘for some time’ but only by doing something ‘no one ever’ had thought of doing. Thus, the resort of governments worldwide to the declarations of temporary states of emergency in the first wave of the pandemic in Spring 2020 is something at once unprecedented and unsurprising. There nonetheless remains a question of why these states of emergency needed to be declared at all, if, as Agamben has long argued, exceptional measures have long been in place already. The resort of democratic governments to legislation on the state of exception or emergency early on in the pandemic appears to throw doubt on Agamben’s argument about the creeping expansion of the state of exception, as despite all the paralegal regulations and administrative decrees that have apparently side-lined parliamentary law-making, the states of exception during the pandemic were explicitly authorized by national parliaments without either contradicting or sidelining the principles of democratic governance.
Agamben’s approach ventures to disable this objection from the outset by invoking yet another indistinction, this time between democracy and totalitarianism. Agamben famously opened Homo Sacer 1 with a still controversial claim about the ‘inner solidarity of democracy and totalitarianism’ (Agamben 1998, p. 10), which is grounded precisely in their shared biopolitical orientation.
It is almost as if, starting from a certain point, every decisive political event were double-sided: the spaces, the liberties and the rights won by individuals in their conflicts with central powers always simultaneously prepared a tacit but increasing inscription of individuals’ lives within the state order. (Agamben 1998, pp. 121–122)
However, the experience of twentieth century totalitarianism differs so significantly from the experience of Western democracies that the argument about their indistinction appears barely defensible (cf. Rasch 2007). In terms of the two senses of the state of exception (as a rupture with the norm and as the ‘new normal’), totalitarian regimes differed from Western democracies in no longer requiring to declare the first state of exception because, unlike the latter, they had actually realized the second (see Mesnard 2004). In totalitarian regimes the sovereign power of exception is indeed realized normally—i.e. without any need for the state of exception to be declared in the Schmittian eruption of the power of real life against the torpid legal ‘mechanism’ (cf. Agamben 1998, pp. 170–171). In contrast, in liberal democracies, whatever their faults, the suspension of legal norms requires the declaration of the state of exception, according to precise legal procedures and usually for a limited period of time. Yet, Agamben’s approach cannot register this or, for that matter, any other distinction between the ways in which the state of exception functions in different regimes. This is because, as we recall, the ‘production of the biopolitical body’ (i.e. bare life caught in the state of exception) is the ‘original activity of sovereign power’ (Agamben 1998, p. 6). All historical instances of the state of exception, from the Roman Empire via Nazi Germany to the pandemic-stricken Europe of our time, merely actualize this ‘original activity’.
Thus, Agamben’s favourite trope of indistinction is applied twice: firstly, all instances of the state of exception are indistinct as actualizations of the original activity of sovereign power and, secondly, the state of exception is indistinct from any putative normal state due to its sheer regularity that makes it appear as ‘torpid’ as the crust of the legal mechanism that Schmitt’s decision broke through. By means of these two indistinctions the state of exception loses all empirical intelligibility, as it becomes the condition of our access to politics as such, thereby retreating into the transcendental realm. As a result of this retreat, we are able to recognize what politics is but only at the price of recognizing it as always the same: the indistinction between sovereign and bio-power is realized indistinctly in democratic and totalitarian regimes so that the exception is indistinct from the norm, and so on.
Why does this retreat into the transcendental take place? It appears that Agamben falls victim to Schmitt’s theory (in the same way as Schmitt, according to Leo Strauss (1976, p. 103), fell victim to liberalism) by adopting his logic of argumentation with a minus sign preceding it. The state of exception was in Schmitt the high point of sovereign power, the point where law would merge with life, rupturing the crusty mechanisms of the system. For Agamben, the state of exception is a particularly low point, where life is stripped of its form and caught up in the ban. Yet, this formal negation does nothing to question Schmitt’s argument that politics is ‘all about’ the exception and that the measure of sovereignty is the capacity to decide on the exception that does not pre-exist it (see List 2020). As a result, the decision on exception becomes generalized across the most diverse political regimes as something that precedes and exceeds them, something always already constitutive of the very norm it suspends. As long as there are empirical examples of both democratic and totalitarian regimes relying on such decisions, their ‘inner solidarity’ is apparently always already proven.
A side effect of this inverted Schmittianism is the almost omnipotent efficacy granted to the sovereign decision in Agamben’s approach, which contrasts strongly and unfavourably with the rather more nuanced approach of the author that has otherwise been a major influence on Agamben, i.e. Walter Benjamin. In his Origin of German Tragic Drama Benjamin presented a historical example of baroque sovereignty, in which the sovereign was not at the height of its powers when declaring the state of exception but was rather caught up in the exception that was always already underway, and ‘the most important function of the prince [was] to exclude this’ (2003, p. 55). What is important about this approach is the figuration of the exception in decidedly un-Schmittian terms as a condition that demands the sovereign’s response, rather than a declarative decision—a response that is difficult and, more often than not, bound to fail. ‘The sovereign, who is responsible for making the decision on the state of exception, reveals, at the first opportunity, that it is almost impossible for him to decide’ (Benjamin 2003, p. 71).
We need only recall Benjamin’s series of the figures of tyrant, martyr and intrigant that populate the baroque political space (Benjamin 2003, pp. 70–88). While the tyrant and the martyr exemplify the failed response to the challenge of the exception, which is why the former so often becomes the latter, the intrigant succeeds (and survives) by giving up on the solemn symbolism of sovereignty, operating instead in the terrain, already modified by the exception and seeking nothing more than to manipulate it to its own advantage. When Benjamin later speaks of a ‘real state of exception’ in the eighth of his ‘Theses on the Philosophy of History’ (1968, p. 263), he arguably has in mind precisely this state, which is not a product of sovereign power, as Schmitt’s fictive states of exception all are, but exists independently of it and demands a decision that is difficult and risky.
This reading of the exception seems to us to be rather more appropriate for the coronavirus crisis and other complex emergencies of our time than their interpretation as a conspiracy of state power to realize a state of exception in every aspect of our existence (see List 2020). Epidemics, heat waves, forest fires, floods, hunger, and climate change that causes most of the above exist as emergencies that may or may not become the justification for states of exception, which, more often than not, reflect not the splendour of sovereign decisionism, but the trembling before the decision that might be entirely ineffective, come too late or otherwise end in failure. Given the initial and even ongoing uncertainty and lack of knowledge regarding the origins and effects of the coronavirus, the states of exception introduced by governments worldwide can hardly appear as signs of their omnipotence but rather reflect their impotence in the face of the situation that is genuinely exceptional, not as a result of any sovereign decision but largely irrespective of it.
While Agamben certainly sides with Benjamin in his analysis of the esoteric debate between Benjamin and Schmitt in State of Exception, he ultimately subsumes his insights under the Schmittian concept, so that even chaos and anomie end up reinscribed within the juridical order (Agamben 2005, pp. 56–57; see List 2020). This reinscription obscures arguably the most important insight of Benjamin’s analysis: not only is it possible to conceive of an exception that challenges rather than fortifies sovereign power, but it is also possible to oppose sovereign power by bringing about a state of exception, in which the latter would not be able to decide on anything whatsoever. It is no longer possible to define sovereign power in terms of its production of bare life through the state of exception, if only because the sovereign may easily find itself reduced to bare life in the exception that is not of its making.
Instead, practices of sovereignty unfold in the continuum, whose extreme points are the Schmittian state of exception effectively enacted by the sovereign and the Benjaminian state of exception, in which the sovereign’s inability to decide leads it into ruin. Along this continuum we could locate numerous intermediate possibilities, in which the exception is neither merely a product of sovereign will nor an objectively given situation, but a certain combination of both. By the same token, along this continuum we would be able to locate different kinds of political regimes, in which the state of exception would be realized differently: e.g. a spatio-temporally circumscribed state of emergency instituted by parliamentary vote in response to a specific emergency, as opposed to an indefinite suspension of fundamental civil rights and liberties. Instead of Agamben’s general indistinction we would rather be able to make numerous distinctions between the ways, in which different states, regimes or forms of government have dealt with the challenge of the exception.
In contrast, the only way to sustain the thesis of indistinction is to insulate it from any empirical consideration by recasting it in the inverse-Schmittian manner as the quasi-transcendental condition of possibility of any politics whatsoever, be it sovereign or bio-politics, democratic or totalitarian, ancient or modern, etc. By virtue of such recasting, Agamben’s persistent comparisons of contemporary liberal democracies with fascist and Nazi regimes are protected from any empirical refutation: ‘the production of a biopolitical body is the original activity of sovereign power’, hence any empirically observable distinctions between these states of exception must be, as it were, distinct manifestations of what is originally indistinct (cf. Kalyvas 2005, pp. 111–12).
Our argument might recall the frequent criticism of Agamben’s ‘ontologization’ of sovereignty and biopower, which has been advanced repeatedly since the publication of Homo Sacer 1 (see Passavant 2007; Toscano 2011). It is indeed true that Agamben models his political theory as a correlate of ontology: ‘Today bios lies in zoe exactly as essence, in the Heideggerian definition of Dasein, lies in existence’ (Agamben 1998, p. 188). Yet, the problem we are addressing here is distinct from this kind of ‘ontologization’. What is at issue is not that the question of power is relocated to the level of being, or, rather, the difference between being and beings, but rather that a plurality of historical forms of power is first collapsed into a ‘zone of indistinction’, which is then elevated to the condition of our access to the political as such. It is not a matter of opposing the ontological to the historical, if only because the two can be brought into alignment in either the Heideggerian or the Foucauldian manner, but rather of inferring from the indifferent series of empirical forms the transcendental condition of their sheer accessibility.
While this retreat into the quasi-transcendental might be an unorthodox and audacious move on Agamben’s part, there remains a question about its utility. To diagnose the present or any other state of affairs as a global state of exception, itself indistinct from the normal state and hence not really exceptional, is hardly a valuable insight, even when it might be accepted as a logical implication of the definition of the ‘original activity’ of sovereign power. Yet, if Agamben’s diagnoses are correct only ‘by definition’, what is then the value of this definition itself, if all that it can do is level all empirically observable distinctions and subsume the most diverse phenomena under a very general category that offers little or no orientation in the plurality of emergencies and exceptions that surround us? All that is gained by this transcendental recasting of the logic of sovereignty is the certitude of the oppositional stance, which is spared the need for critical discernment, since all distinctions have now been erased.
In the following section we shall address the counterpart to sovereign power in Agamben’s theory, i.e. the concept of bare life, and argue that with regard to this concept Agamben makes a diametrically opposite move of inferring a series of empirical actualizations from a quasi-transcendental presupposition.