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Posts Tagged ‘Giorgio Agamben’

Žižek and Agamben’s Homo Sacer

In Arts & Letters, Books, Humanities, Law, Literary Theory & Criticism, Philosophy, Politics, Postmodernism, Western Philosophy on March 6, 2013 at 8:45 am

Allen Mendenhall

“The problem with Rumsfeld’s blunt statement [that the American goal was to kill as many Taliban soldiers and al-Qaeda members as possible], as with other similar phenomena like the uncertain status of the Afghan prisoners at Guantanamo Bay, is that they seem to point directly to Agamben’s distinction between the full citizen and Homo sacer who, although he or she is alive as a human being, is not part of the political community.”

                   —Slavoj Žižek, Welcome to the Desert of the Real

Whatever else it is, Giorgio Agamben’s philosophy is anti-authoritarian and anti-totalitarianism.  Slavoj Žižek draws from Agamben to round out Welcome to the Desert of the Real.  Specifically, Žižek draws from Agamben’s theories about homo sacer and “the state of exception,” the latter of which Agamben borrows from the German jurisprudent Carl Schmitt.  In his book Homo Sacer, Agamben adopts Pompeius Festus’ definition of homo sacer as “the one whom the people have judged on account of a crime,” and the one who cannot be sacrificed, but can be killed without legal consequence.[1]

Agamben suggests that homo sacer is bound up with notions of sovereignty.  Sovereignty is determined by what is included and what is excluded from the jurisdiction of a sovereign.  Although a sovereign has the power to suspend the validity of law and, therefore, to stand outside the law, the sovereign may lose that privilege and become the sacred man who no longer has rights granted and secured by the polis, and who may be killed, but not sacrificed.  According to this paradigm, the sovereign is a man—a king or a monarch—who embodies statehood and sovereignty.  The body of this man is itself the site of law so long as the man remains the sovereign; as soon as the man is no longer sovereign, his body ceases to be the site of the law.

Žižek seems less concerned with the idea of sovereignty implicated by the term homo sacer.  He focuses, instead, on the “outsider,” “fugitive,” or “noncitizen” aspect of homo sacer.  He defines today’s homo sacer as “the privileged object of humanitarian biopolitics: the one who is deprived of his or her full humanity being taken care of in a very patronizing way.”  Žižek’s examples of today’s homo sacer include John Walker, the American who fought with the Taliban; the sans papers in France; the inhabitants of the favelas in Brazil; people in the African-American ghettos in the United States; an American war plane flying above Afghanistan; and others.  None of these examples describes groups or persons who once enjoyed the power of a sovereign.  All of these groups or persons have in common an ambiguous status in relation to the law of the polis.

Žižek shares with Agamben the notion that homo sacer is, or can be, the embodiment of the state of exception: the one who is excluded from the polis, who neither makes laws nor enjoys the protection of laws.  By sidestepping Agamben’s proposition that the sovereign body is the constitution of sovereignty—a move that might have to do with Žižek’s criticism of Agamben as wedded to the dialectics of the Enlightenment and to Foucault’s disciplinary power or biopower—Žižek is able to raise profound and troubling questions about the status of every one of us regarding homo sacer.  He asks, for instance, “What if the true problem is not the fragile status of the excluded but, rather, the fact that, on the most elementary level, we are all ‘excluded’ in the sense that our most elementary, ‘zero’ position is that of an object of biopolitics, and that possible political and citizenship rights are given to us as a secondary gesture, in accordance with biopolitical strategic considerations?”  Žižek does not answer this question, but the answer, disturbing as it is, seems implied in the question.

[1] Giorgio Agamben.  Homo Sacer: Sovereign Power and Bare Life.  Stanford University Press, 1995.  Pg. 71.


A Tale of the Rise of Law (Part One of Two)

In Arts & Letters, Britain, Christianity, Fiction, Historicism, History, Humanities, Imagination, Jurisprudence, Justice, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Politics, Rhetoric, Rhetoric & Communication, Western Civilization on March 9, 2012 at 10:09 pm

Allen Mendenhall

This essay originally appeared here at Inquire: Journal of Comparative Literature (Issue 2.1, 2012)

Geoffrey of Monmouth’s The History of the Kings of Britain is a tale of the rise of law that suggests that there can be no Britain without law – indeed, that Britain, like all nation-state constructs, was law or at least a complex network of interrelated processes and procedures that we might call law. During an age with multiple sources of legal authority in Britain, The History treats law as sovereign unto itself in order to create a narrative of order and stability.1 This article examines the way Geoffrey establishes the primacy of law by using the language-based, utilitarian methodologies of John Austin, who treats law as an expression of a command issued by a sovereign and followed by a polis, and whose jurisprudence enables twenty-first-century readers to understand Geoffrey’s narrative as a response to monarchical succession and emerging common law. The first section of this article briefly explains Austin’s jurisprudence and provides historical context for The History. The second section considers The History in terms of uniform and rational justice in the twelfth century, situating Geoffrey’s jurisprudence alongside that of Ranulf de Glanvill and analyzing the complex relationships between sovereignty, law, polis and nation state.

 The Jurisprudence of John Austin

Austin treats law as an expression of will that something be done or not done, coupled with the power to punish those who do not comply: “A command […] is a signification of desire […] distinguished from other significations of desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he not comply with the desire” (Province 6).  Accordingly, law is a command that carries the power of sanction. Austin, who writes in the nineteenth century, is in many ways different from the twelfth-century Geoffrey. Whereas Geoffrey employs fiction to instruct his contemporaries in the official narrative of incipient nationalism, Austin proclaims that many “of the legal and moral rules which obtain in the most civilized communities, rest upon brute custom, and not upon manly reason” (Province 58). Austin adds that these legal and moral rules “have been taken from preceding generations without examination, and are deeply tinctured with barbarity,” and also that these takings are particularly harmful because the rules “arose in early ages” during “the infancy of the human mind” when people ruled based on “the caprices of fancy” (Province 58). Because The History is more mythology than fact, Austin probably would have accused Geoffrey of perpetuating “obstacles to the diffusion of ethical truth” and of “monstrous or crude productions of childish and imbecile intellect” that nonetheless “have been cherished […] through ages of advancing knowledge” (Province 58). Austin, in short, was skeptical of mythology and claims about absolute law, whereas Geoffrey embraced mythology and implied that law was a constant corrective.

Despite this disjuncture, or perhaps because of it, Austin’s theories provide an illuminating framework in which to consider The History. Austin’s proposition that laws are commands backed with the power to sanction stands in contradistinction to Geoffrey’s suggestion that law emerged out of an ancient precedent and achieved its fullest expression under the great King Arthur. The conception of law as merely language reinforced by the possibility of physical threat undercuts the idea that law is based in first principles discovered by the fathers of civilization. Austin’s proposition – that customary laws carry no threat of punishment and therefore are not laws at all unless a sovereign, who can punish, declares them to be laws – also contradicts Geoffrey’s suggestion that law is embedded in custom and represents a point of authority from which kings may or may not deviate. Finally, Austin’s proposition that “every law which obtains in all societies, is made by sovereign legislators” (Lectures 566), even if such law derives its lexicon from divine inspiration or religious texts, weakens Geoffrey’s suggestion that law is relatively fixed in custom and tradition despite the whims and fancies of a given age. To employ Austin’s jurisprudence is not to privilege Austin’s reading over Geoffrey’s or Geoffrey’s reading over Austin’s but to treat Austin as a lens through which to examine how Geoffrey navigates the legal terrain of his day and negotiates conflicts about law and monarchy that unsettled the harmony of the burgeoning state. Geoffrey uses myth both to validate law and British unity and to reassure the anxious polis of law’s ultimate supremacy over temporary ideological disruptions. He establishes models of behavior for both monarchs and the polis. Read the rest of this entry »

News of Note

In Arts & Letters, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism, News and Current Events on January 14, 2011 at 9:40 pm

Allen Mendenhall

Giorgio Agamben is a critical legal-literary theorist whose work Homo Sacer I both admire and recommend.  This new edition addresses Agamben’s scholarship. 

Here is an interesting article for anyone considering law school.

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