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agamben's challenge Arrow vol 3 no 1 contents
About borderlands Volume 3 Number 1, 2004

 


Agamben’s challenge to normative theories of modern rights


Jean-Philippe Deranty
Macquarie University

 

Introduction

1. Agamben’s theory of rights, law and the State, is explicitly devised as a radical critique of, and departure from, normative accounts of modern politics. Each of its main theses is meant to reject one fundamental tenet assumed by those normative accounts.

2. Thus, he argues that political sovereignty is not grounded in the community, or the people. In essence, it is the power to declare the state of exception. This power therefore constitutes the ‘paradigm of government’ (Agamben 2003). This can be verified factually with the historical tendency of liberal democracies to rely more and more on the subjection of the legislative to the executive, through procedures akin to the logic of emergency. It can also be verified conceptually with the work of Carl Schmitt.

3. Conceived as exception rather than as democratic procedure, sovereignty operates under the logic of the ‘ban’ (Agamben 1998; also see Nancy 1993), that is to say, it is at bottom a form of inclusion in the social order through exclusion, or an exclusion that maintains within the order. Since the essence of the political is exception, inclusion through exclusion, and law is the expression of political sovereignty, rather than giving rise to a normative sphere from which to articulate normativity and facticity, the law is itself indistinguishable from pure factuality, and the ultimate form of the law is brute force. Politics understood as sovereign power is thus not the opposition of an order of nomos against physis, but the indistinction between physis and nomos. The normative order of the law hides absolute violence. The State is not the institution safeguarding and enforcing democratically constituted laws, but is the enforcement of legal violence.

4. Correlatively, the subject of power is not the citizen, not a bearer of fundamental rights, however these rights are accounted for (as naturally, politically or historically grounded, or simply as positivistically given). As that which is captured by the law enforcing the exception, the subject of power is in fact bare life or biological life, which Agamben opposes to a fully human, ethical life or "form of life" (Agamben 2000: chap.1). The archaic juridical category of homo sacer, an individual excluded from the community who can be killed by anyone in all impunity, but who cannot be killed in the religious-legal forms of sacrifice, crystallizes this capture of life by the law. Foucault’s biopower hypothesis is thus detached from modern times and becomes the transhistorical essence of Western metaphysics in its political guise.

5. Modernity in its essence is not synonymous with the entrenchment of subjective rights and popular sovereignty. It is not characterised by the circular, reciprocal conditioning of subjective rights and democratic procedures of law-making relying on the sovereignty of the people. Modernity is in fact the time when the biopolitical essence of sovereignty is finally revealed in its full horror, the time when sovereign power even produces bare life as its own substance the better to capture it. The "nomos of modernity" is the camp, a place where right and fact are indistinct, where life is reduced to its biological substrate. Auschwitz, not the Declarations of fundamental rights, nor the democratic revolutions, is the paradigmatic event defining modernity; not the Citizen, nor the Man of fundamental rights, nor the emancipated worker, but homo sacer, and especially the contemporary manifestation of the Muselmann, is the real face of modernity.

6. Agamben’s narrative of rights thus offers a perfect counter-narrative to reconstructions that give themselves the task of accounting conceptually for the normativity of contemporary legal and political orders. Particularly convincing is his insistence that the honour of thinking today continues to lie in a thorough, serious engagement with the absolute challenge that the horrors of the previous century pose to any theory defending the rationality and normativity of politics, i.e. in a pursuit of Hannah Arendt’s research into the historical and metaphysical "origins of totalitarianism".

7. The question, though, is whether Agamben’s counter-theory that results from this critical inspiration is itself valid. This paper aims to assess some of Agamben’s key arguments against normative theories of rights, to show that his own proposal is itself caught up in major conceptual and political difficulties. This leads to the conclusion - which can only be programmatically sketched within the scope of this short paper - that there is still a need to attempt to retrieve the force of Agamben’s critical arguments, but without abandoning the resource that modern rights, in their normative dimensions, can provide for an alternative political theory and practice.

Agamben’s Essentialism

8. Agamben’s conception of the task of thinking is deeply Heideggerian. It can be summarized in this way: the thinker isolates ontological essences in which the common ground of apparently different, or even opposite, empirical and historical phenomena is revealed. The constantly reoccurring conceptual gesture in Agamben’s writings is that of indistinction. Political power is the instigation of an indistinction between the state of exception and the normal legal order, between fact and law, nature and norm, animality and humanity, inside and outside, inclusion and exclusion. It must be noted that, paradoxically, this recurrent movement of indistinction that effaces conceptual and empirical differences runs counter to the Foucauldian distinctions and discontinuities.

9. Consistent with this foundationalist essentialism, Agamben does not restrict indistinction to the conceptual or structural level, but extends it to empirical, historical phenomena. The archaic State is not substantially different from the modern one. There is no essential difference between democracy before Auschwitz, the totalitarian States themselves, and democracy after Auschwitz between liberal democracies and dictatorships (Agamben 1998:10). In Auschwitz, there is no difference between victim and executioner (Agamben 1999a: 21). No distinction between the sacred priest, the criminal banned from the archaic community and the modern citizen; no distinction between the bodies in Auschwitz and the bodies of victims of car accidents in modern Europe (1998: 114); no distinction between the Muselmann in the extermination camp and the immigrant locked up by police in a hotel at Charles de Gaulle Airport (1998: 174), or between the Muselmann and the overcomatose person (1999a: 156); no distinction between the Nazi extermination camps and the camps established in the former Yugoslavia.

10. On a general, philosophical level, the essentialist method that leads to general indistinguishability would be questioned by other traditions of thought. The strongest critique would probably come from the Hegelian tradition, for which the essence is to be found nowhere but in its modes of appearance, identity in differences. The conceptual imperative that ensues is the task of thinking precisely what appears as different, and not look for a transcendent "thing-in-itself" in which all differences are swallowed. If indeed there are historiographical differences between democracy and fascism (1998: 10), then perhaps it should bear more weight in the theory, and not be blurred into indistinction. From a Hegelian perspective, Agamben’s conceptuality looks very much like a Schellingian night where all cows are black. This in itself is obviously not a ground for rejection, as all theory starts from a theoretical decision which is itself ungrounded and the matter of pure freedom, as Fichte demonstrated. Thought, like politics, is all about the decision and its implications.

11. In the case of empirical examples, the erasure of difference between phenomena seems particularly counter-intuitive in the case of dissimilar modes of internment. From a practical point of view, it seems counter-productive to claim that there is no substantial difference between archaic communities and modern communities provided with the language of rights, between the lawlessness of war times and democratic discourse. There must be a way of problematising the ideological mantra of Western freedom, of modernity’s moral superiority, that does not simply equate it with Nazi propaganda (Ogilvie 2001). Habermas and Honneth probably have a point when they highlight the advances made by modernity in the entrenchment of rights. If the ethical task is that of testimony, then our testimony should go also to all the individual lives that were freed from alienation by the establishment of legal barriers against arbitrariness and exclusion. We should heed Honneth’s reminder that struggles for social and political emancipation have often privileged the language of rights over any other discourse (Fraser, Honneth 2003). To reject the language of human rights altogether could be a costly gesture in understanding past political struggles in their relevance for future ones, and a serious strategic, political loss for accompanying present struggles. We want to criticise the ideology of human rights, but not at the cost of renouncing the resources that rights provide. Otherwise, critical theory would be in the odd position of casting aspersions upon the very people it purports to speak for, and of depriving itself of a major weapon in the struggle against oppression.

The Critique of Human Rights

12. In order to argue against fundamental rights as the normative grounding of modern politics, Agamben presents the biopolitical thesis: the actual subject of the law is not the citizen, understood as a person vested with fundamental rights, but the human being as living creature. The actual subject of power is bare life.

13. I want to consider this rejection of the principle of human rights from the angle of the emergence of biopolitics at the time of the declarations of human rights. Agamben accepts the well-established distinction between ancient natural law, natural law under absolutism, and modern natural law (Strauss 1953). His narrative, however, runs counter to the usual one:

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 with the state order, thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves (Agamben 1998: 121).

14. This is a kind of dialectic of Enlightenment: the more individuals liberate themselves legally from the shackles of authority, the more they subject themselves to power biopolitically. This dialectic enables Agamben to postulate a continuous line running from the first formulation of the Habeas Corpus, through the Bill of Rights, to the 1933 Nuremberg eugenic laws: along this line we find the body of the individual directly exposed to the state of exception. In the different Declarations of Human Rights that signal the historical birth of modernity, the subject becomes citizen that is bearer of sovereignty, solely on account of his birth, his natio, or nationality. Behind the citizen, man as bare life is hidden. This bare life exposed to sovereign power is precisely the pure substance that the Nazi regime attempted to produce, which justifies the perception of continuity between modern democracy and the totalitarian State.

15. This reading of the French Revolution and of the Declarations of Human Rights used as preambles to the different constitutions of the République is problematic. First of all, in the American Revolution, which in many senses was the model for the French, it would be difficult to find the figure of homo sacer. The American declaration of independence, influenced by Locke’s theory of natural law, places the origin of the rights of men in divine laws. Political power does not apply to individuals considered from the point of view of their birth, their natio or nationality, but to individuals fully endowed with natural rights, as creatures of God (Kervégan 1995: 660).

16. Agamben is greatly inspired by Hannah Arendt. She is the one that explicitly makes the "internment camp" a central figure of modern times (Arendt 1966: 276). In her, he finds a strong counter-objection to the remark above. In both the "American formula" that relies on the authority of God, and the "French formula" that relies on philosophical justifications of natural law, the fiction of a universal essence of man is denounced by the factual helplessness of all the refugees and stateless people created by the turmoils of the 20th century.

17. Agamben quotes Arendt’s critical conclusion: ‘the conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships – except that they were still human’ (Arendt 1966: 299; Agamben 1998: 126). But he fails to quote the very next line, which makes all the difference: "The world found nothing sacred in the abstract nakedness of the human being" (Arendt 1966: 299).

18. What Arendt means is that only when they are realised in a political "commonwealth" do human rights have any meaning. They are an abstraction otherwise. More important than the right to freedom or the right to justice is "the right to have rights", that is, to be the member of a political community. Arendt therefore asserts the opposite of what Agamben wants to say: she believes that the political solution lies in what he considers to be a fiction, namely the citizen. Her point is that when man and citizen come apart, we realise that man never really existed as a subject of rights. This is the exact opposite of Agamben for whom the citizen is just a travesty.

19. Despite this opposition, Agamben borrows Arendt’s critical interpretation of the French revolution and modernity in general, even though this interpretation itself is not beyond doubt. The French declaration makes it clear that human rights lose all significance if they are not reinscribed within a political community that transforms them into constitutional principles, and the American constitution also defines a clear link between individual freedom and a political order whose goal is freedom’s protection. Yet, Agamben reads the first article of the Declaration of 1789, "all men are born and remain free and equal in rights" as proof that modern sovereign power applies to bare life, here in the form of birth (Agamben 1995: 128). But this seems disingenuous. Birth here refers not to nationality, but simply to the fundamental fact of the equality of all human beings in right. The term effectuates the radical break with ancient and absolutist natural law, a break that is synonymous with legal modernity. In ancient natural law, rights were associated with the social position or the notion of a perfect cosmic order underpinned by God.

20. This emphasis on the rupture that the declarations consummate leads to the question of historical continuity. The Habeas Corpus is not necessarily a precursor of modern declarations as it uses a non-egalitarian definition of freedom, reserved for the elite. It lacks the fundamental notion that is the mark of modernity, the universal equality of all.

21. Agamben does not emphasise equality, but it could be argued that, above all others, even above the notion of right, it is this category that gives modernity its actual normative content. Modern man is therefore not first and foremost the national, but a universal being liberated from the particularisms of traditional society. This amounts only to an empty universalism if no political project realises freedom and equality, but this is precisely a mistake that the American and French revolutions, for all their ambiguities, did not commit. Agamben refuses to consider basic legal equality as the true content of declarations of human rights and instead focuses on the national aspect. In this he is faithful to Schmitt who rejects the republican conception of popular sovereignty.

Schmitt, Benjamin and the Violence of the Law

22. One of the most impressive aspects in Agamben’s oeuvre is the extent to which it has developed to such a high level of conceptual sophistication, and how it delves to such a degree into philological, historical and conceptual detail, whilst remaining ever faithful to the letter and spirit of Walter Benjamin’s writings. This is true of his meditations on language, literature, and the "end of experience". This especially true, however, of Agamben’s political writings. They can be read as the results of a systematic research undertaken with the goal of developing and giving substance to the insights put forward by Benjamin in his long forgotten and now famous 1921 article, "Critique of Violence", as well as the 1940 "Theses on the Philosophy of History". It is important to approach Agamben’s theses on political sovereignty from this perspective because their radical nature risks blocking access to their meaning and critical potential.

23. The second of the three volumes to be dedicated to the figure of homo sacer (Homo Sacer II, 1) studies afresh many of the key theses, concepts and references that were present in the first instalment (Homo Sacer: sovereign power and bare life). The new genealogical and ontological analyses in this second volume make both the negative, critical, and the positive, programmatic, aspects of Agamben’s politics very clear.

24. By focusing on the paradox of constituting power, the extra-juridical nature of the decision that founds the juridical field, the paradox of political sovereignty, which, in its normality and normativity, logically relies on the power to decree the state of exception, Carl Schmitt has isolated the violent, anomic core of all juridical and political systems. In this sense, Schmitt tells the truth about the political, the truth about Western politics. For example, empirically, the world in which we live is a Schmittian world, where the state of exception becomes the rule of even supposedly "democratic" governments.

25. But, to use Heidegger’s turn of phrase, that is only the guiding question, not the founding one. More importantly, in their very accuracy, the Schmittian theses point to all that is wrong in Western politics, and thus, negatively, to another form of politics. With Schmitt, Agamben believes one can cut to the very essence of Western politics, beyond illusory rationalistic and normative frameworks. Only after having reached that point, once the essence of all politics has been identified, can one hope to find the correct alternative. Any solution that would not confront the Schmittian challenge would remain caught up in unending conundrums. The embracing of Schmitt is thus only a negative, propaedeutic step towards a positive political theory.

26. So what is wrong with Schmitt, according to Agamben, and what political field opens up once we have crossed this ultimate threshold? In the central chapter of Homo Sacer II, 1, Agamben reconstructs the different stages of Schmitt’s theory of sovereign exception as a series of responses to Benjamin’s fundamental challenge, the idea expressed in the 1921 "Critique of violence", and reiterated in the 1940 eighth thesis on history, of a "pure" revolutionary "violence" beyond all forms of law, which therefore would not be violent, of a "real state of exception", the revolutionary one, that would replace the absolute violence of the state of exception "in which we live" (Benjamin 1991: 291[292]).

27. For Agamben, Schmitt’s theory of sovereignty is the attempt to conjure up the threat of (Benjaminian) revolution, by tying up the anomy at the core of human action to the juridical order via the theory of exception. This gesture of tying up anomic violence to a normative order is exactly isonomic to the metaphysical gesture that attempts to capture Being in the net of logos. This is why Schmitt, as the one who identified the pure elements of all legal orders, the anomic core of normal legality, but continued to tie the two together, represents the true acme, both conceptually and for what he stood for historically, of Western politics. And this is why Benjamin, who had learnt from Schmitt about the exceptionality forming the core of legal normality and normative legality, but perverted the Schmittian lesson by cutting the link between exception and law, shows the right way out of the political impasse of the West. The effective theory of revolution is the messianic utopianism of Benjamin.

28. All this explains why Agamben chooses to focus on the decisionistic tradition (Hobbes, Heidegger, Schmitt). With it, he wants to isolate the pure essences of all juridical orders and thus highlight the essential violence structuring traditional politics. Since the law essentially appears as a production and capture of bare life, the political order that enunciates and maintains the law is essentially violent, always threatening the bare life it has produced with total annihilation. Auschwitz is the real outcome of all normative orders.

29. The problem with this strategic use of the decisionistic tradition is that it does not do justice to the complex relationship that these authors establish between violence and normativity, that is, in the end the very normative nature of their theories. In brief, they are not saying that all law is violent, in essence or in its core, rather that law is dependent upon a form of violence for its foundation. Violence can found the law, without the law itself being violent. In Hobbes, the social contract, despite the absolute nature of the sovereign it creates, also enables individual rights to flourish on the basis of the inalienable right to life (see Barret-Kriegel 2003: 86).

30. In Schmitt, the decision over the exception is indeed "more interesting than the regular case", but only because it makes the regular case possible. The "normal situation" matters more than the power to create it since it is its end (Schmitt 1985: 13). What Schmitt has in mind is not the indistinction between fact and law, or their intimate cohesion, to wit, their secrete indistinguishability, but the origin of the law, in the name of the law. This explains why the primacy given by Schmitt to the decision is accompanied by the recognition of popular sovereignty, since the decision is only the expression of an organic community. Decisionism for Schmitt is only a way of asserting the political value of the community as homogeneous whole, against liberal parliamentarianism. Also, the evolution of Schmitt’s thought is marked by the retreat of the decisionistic element, in favour of a strong form of institutionalism. This is because, if indeed the juridical order is totally dependent on the sovereign decision, then the latter can revoke it at any moment. Decisionism, as a theory about the origin of the law, leads to its own contradiction unless it is reintegrated in a theory of institutions (Kervégan 1992).

31. In other words, Agamben sees these authors as establishing a circularity of law and violence, when they want to emphasise the extra-juridical origin of the law, for the law’s sake. Equally, Savigny’s polemic against rationalism in legal theory, against Thibaut and his philosophical ally Hegel, does not amount to a recognition of the capture of life by the law, but aims at grounding the legal order in the very life of a people (Agamben 1998: 27). For Agamben, it seems, the origin and the essence of the law are synonymous, whereas the authors he relies on thought rather that the two were fundamentally different.

32. Agamben obviously knows all this. He argues that it is precisely this inability of the decisionists to hold on to their key insight, the anomic core of norms, which gives them the sad distinction of accurately describing an evil order. But this reading does not meet the objection to his problematic use of that tradition.

33. If the authors of the decisionistic (Hobbes-Schmitt) and ethnonationalistic (Savigny-Schmitt) traditions do not want to emphasize the extra-juridical core of the law, but rather polemically establish the non-rationalistic and non-positivistic grounding of an otherwise fully acknowledged normative order, then it seems as though Agamben makes them prove too much. If Hobbes, Savigny and Schmitt are intent, as much as their theoretical opponents, on shoring up the normative order, then they cannot be used as proponents of an anti-normative essence of normativity. Conversely, a more serious engagement with the opposing traditions (mainly, natural law, positivism and rationalism) is required, since it is not the case that the nationalistic-decisionistic one would be situated at a deeper level of analysis than its opponents.

34. This is illustrated in the passage in Homo Sacer II, 1 where Agamben analyses the justification-application dichotomy. The passages on Schmitt’s theory of the state of exception show explicitly the hermeneutic slide in the reading of this key author. Indeed, "the state of exception separates the norm from its application in order to make the latter possible". But Schmitt’s point is not what Agamben makes of it in the next paragraph, namely that, as a consequence, "it (the state of exception) introduces into the law a zone of anomy", in which "the two elements of the law" (the norm and its application) "show their intimate cohesion" (Agamben 2003: 64). Instead, for Schmitt, the distinction between justification and application simply shows the political grounding of the legal moment.

35. But this grounding in the political is just the result of a theoretical decision, and the alternatives should be confronted more explicitly. This lack of a substantial engagement with other legal alternatives becomes obvious a few pages later, when Agamben analyses once more the specific problem of the application of the law. When he writes that "in the case of the juridical norm, the reference to the concrete case supposes a "process" that always implies a plurality of subjects, and that culminates in the last instance in the enunciation of a sentence, that is to say, a statement whose operative reference to reality is guaranteed by institutional powers" (Agamben 2003: 69), he simply formulates a classical distinction that can receive an entirely different treatment with no less plausibility. A recent philosophical solution to the gap between justification and application has been famously given by Habermas (1990 and 1996). Chapters 5 and 6 of Between facts and norms in particular provide an excellent overview of plausible alternatives to Schmitt’s decisionistic theory of adjudication, from Kelsen to Critical Legal Studies.

36. But then Agamben cannot simply use the fact that "the application of a norm is not contained in it" as leading directly to the theory of the state of exception, since from the very same premise another form of political grounding of the legal could be advanced, one, for instance, that focuses on intersubjectivity and the institutionalisation of dissensus. The "violence" that realizes the statement is not necessarily "without logos". For Schmitt, it draws its authority from the political, that is, the logos of the polis as ethnos; for another tradition, it would do so from the logos of intersubjectively constituted and essentially contested institutions.

37. Here, as in many other aspects of his thought, Agamben draws on Benjamin for whom there is "something rotten in law" (Benjamin 1991b: 188 [286]), a fateful violence, "the destruction of which becomes obligatory" (199 [297]). There is undeniably a continuity in Benjamin, from the "Critique of Violence" to the theses on the philosophy of history, that has to do with his fundamental vision of history as a series of catastrophes, a series of orders recurrently establishing themselves as forms of fate that unleash their violence, rephrased in the language of the law, over the oppressed. But the other continuity in Benjamin’s writings is underplayed by Agamben. For Benjamin and his readers of 1921, the divine violence that is "law-destroying", and therefore - as negation of the violent negation of law - no longer violent, is obviously the violence of the proletarian revolution, and there is no need, in 1921, to ask about its "logos", the normative source of its justification. This source is the "total condition that is ‘man’" (Benjamin 1991b: 201 [299]), the "wholly transformed work" (1991b: 294 [292]), in other words, in a Marx-inspired vision of global revolution, however vague or heretic the reception of Marx. Again, in 1940, the theses on history use historical materialism as their obvious background, though Agamben acknowledges this only in passing in Homo Sacer II (108), and appropriates Benjamin without reference to the background securing his revolutionary messianism in Homo Sacer 1. Agamben acknowledges this only in passing in Homo Sacer II, 1 (2003: 108). Homo sacer I strikingly appropriated Benjamin without reference to the background securing his revolutionary messianism. This means, however, that the new law beyond the law that no longer has the form of law is a lot more substantive than simply the "study" of, or "play with", the old law (Agamben 2003: 108-9). It is the immanent law of the liberated community, whose book had already been written in extenso by another great German Jew. In other words, Benjamin indeed demonstrates the violent anomic core of law, but only to point to a new, normative law, the new law of a community that has defeated fate. With this reference to Marx as the immanent normativity of Benjamin’s messianism, the notion of a politics of "pure means" becomes far more intuitively evident.

Ontology of Politics, Politics of Ontology

38. With the "Critique of Violence", Benjamin pursued the goal of a "politics of pure means" which would undercut the violence implicit in all articulation of morality and justice in (justified) means for (just) ends. "The violence of an action can be assessed no more from its effects than from its ends, but only from the law of its means" (Benjamin 1991b: 195 [292]). Since the law of the legal order’s means is the establishment of a violent fate that captures bare life and produces guilt and punishment as forms of that capture (Benjamin 1991a: 175 [308]), the destruction of all forms of legality is "obligatory" before the advent of a just society.

39. Agamben takes up Benjamin’s indication and engages in systematic research into the ontology of means and ends in order to show its absolute violent isonomy with the logic of sovereignty. To do this, Agamben borrows from Schmitt the definition of sovereign power as the decisionary power over the state of exception, which he interprets as the paradoxical power to exclude and thereby include, or alternatively to include by excluding.

40. This formal model, he then shows, following Heidegger, exactly corresponds in structural terms to the classical Aristotelian articulation of potentiality to actuality. Aristotle identifies two senses of potentiality. Potentiality is potentiality to be, and in that first sense, it is directly related to actuality: potentiality as potentiality of actuality. Potentiality is therefore more truly itself in a second sense, as potentiality not to be. In this second sense, however, it also remains related to actuality. Indeed the potential not to be, if reflectively turned onto itself, is again actuality. Not to be the power not to be is both being true to the nature of not being, and also to be in the most actual form of actuality. Impotentiality taken seriously is both pure potentiality and as the impotentiality of the potential not-to-be, pure actuality. In other words, "pure potentiality and pure actuality are indistinguishable" (Agamben 1998: 47).

41. This conceptual indistinction, whereby the potential is also the most actual form of actuality, is perfectly isomorphic with the sovereign structure if sovereignty is also defined as a power to suspend itself (potential not-to be) which is at the same time the source of itself and, as normative power, the source of legal reality (actuality).

42. The conclusion is clear: if we want to move beyond biopolitics, beyond the violent politics of sovereignty, we have to develop an alternative ontology where the potential is not always already recaptured by its own potentiality and thus forced to relate to its opposite, actuality. We have to think potentiality as pure or absolute potentiality, "beyond every figure of relation" (1998: 47).

43. Agamben thus connects Benjamin’s "politics of pure means" with the alternative ontology articulated by Heidegger on the basis of his reading of Aristotle’s metaphysics. In his 1931 lectures on the Metaphysics (Heidegger, 1981: 114), in his Nietzsche lectures (1980: 64-65), and in the Letter on humanism (1977: 220), Heidegger had tied the imperative of a "recovery of the question of Being" to a radical rethinking of the categories of modality in which Being is freed from the productivist paradigm of actualitas. Only through a questioning of the modal logic operating within the onto-theological tradition could a free "ethos" be prepared as a genuine dwelling. Agamben’s thought owes just as much to this fundamental inspiration as he does to Benjamin. How much Heidegger’s ontology of potentiality has exerted a fundamental influence on him is especially clear in the lectures at the Collège international de Philosophie published under the title L’ombre de l’amour (1988: 44-46).

44. The description of the radical politics that emerges from the ontology of pure potentiality can be found in The Coming Community, and it is here that the full consequences of Agamben’s problematic interpretation and reappropriation of Benjamin, Heidegger, Schmitt and Arendt become apparent.

45. In the notes that Benjamin was writing in preparation for his Theses on the philosophy of history, one reads: "The messianic world is the world of overall and integral actuality" (Benjamin 1991e: 1235). The last expression is a self-reference to the 1929 essay on surrealism (1991d: 309, [1929]). Against Benjamin’s explicit equation of the "real state of exception" (the state of liberated humanity), with actuality, Agamben’s coming community is a community of subjects that exist only as negative potentialities (actualities that are the possibility of not-being, actualisations of potentiality), the "whatever singularities". Because he has severed the concept of the community from all normative ties, and has rejected all conceptual and normative distinctions (between state of nature and civil state, law and violence, nomos and physis, normal state and exception, etc.), this community-to-come can only be ever described negatively, as beyond all forms of community, and accessed only in the flight from all present and all immanence. It is difficult to avoid thinking that the assumed messianism of this radical politics is only a form of negative theology. Difficult not to think, also, that politics constructed as the "gigantomachy" (Agamben 2003: chapter 4) of an onto-theology of power does not lead to the evanescence of politics.

Rights, Politics, Contingency

46. How can we heed Agamben’s warning about the necessity to continue to question the normativity of modernity after Auschwitz without dissolving politics into onto-theology? This seems to be one of the most pressing demands for political thought today.

47. If, with Rancière, we define politics not through the institution of sovereignty, but as a continual struggle for the recognition of basic equality, and thereby strongly distinguish politics from the police order viewed as the functional management of communities (Rancière 1999), then it is possible to acknowledge the normative break introduced by the democratic revolutions of the modern age without falling into a one-sided view of modernity as a neat process of rationalisation. What should be stressed about modernity is not primarily the list of substantive inalienable and imprescriptible human rights, but the equal entitlement of all to claim any rights at all. This definition of politics must be accompanied by the parallel acknowledgment that the times that saw the recognition of the fundamental equality of all also produced the total negation of this principle. But this parallel claim does not necessarily render the first invalid. Rather it points to a tension inherent in modern communities, between the political demands of equality and the systemic tendencies that structurally produce stigmatisation and exclusion.

48. One can acknowledge the descriptive appeal of the biopower hypothesis without renouncing the antagonistic definition of politics. As Rancière remarks, Foucault’s late hypothesis is more about power than it is about politics (Rancière 2002). This is quite clear in the 1976 lectures (Society must be defended) where the term that is mostly used is that of "biopower". As Rancière suggests, when the "biopower" hypothesis is transformed into a "biopolitical" thesis, the very possibility of politics becomes problematic. There is a way of articulating modern disciplinary power and the imperative of politics that is not disjunctive. The power that subjects and excludes socially can also empower politically simply because the exclusion is already a form of address which unwittingly provides implicit recognition. Power includes by excluding, but in a way that might be different from a ban. This insight is precisely the one that Foucault was developing in his last writings, in his definition of freedom as "agonism" (Foucault 1983: 208-228): "Power is exercised only over free subjects, and only insofar as they are free" (221). The hierarchical, exclusionary essence of social structures demands as a condition of its possibility an equivalent implicit recognition of all, even in the mode of exclusion. It is on the basis of this recognition that politics can sometimes arise as the vindication of equality and the challenge to exclusion.

49. This proposal rests on a logic that challenges Agamben’s reduction of the overcoming of the classical conceptualisation of potentiality and actuality to the single Heideggerian alternative. Instead of collapsing or dualistically separating potentiality and actuality, one would find in Hegel’s modal logic a way to articulate their negative, or reflexive, unity, in the notion of contingency. Contingency is precisely the potential as existing, a potential that exists yet does not exclude the possibility of its opposite (Hegel 1969: 541-554). Hegel can lead the way towards an ontology of contingency that recognises the place of contingency at the core of necessity, instead of opposing them. The fact that the impossible became real vindicates Hegel’s claim that the impossible should not be opposed to the actual. Instead, the possible and the impossible are only reflected images of each other and, as actual, are both simply the contingent. Auschwitz should not be called absolute necessity (Agamben 1999a: 148), but absolute contingency. The absolute historical necessity of Auschwitz is not "the radical negation" of contingency, which, if true, would indeed necessitate a flight out of history to conjure up its threat. Its absolute necessity in fact harbours an indelible core of contingency, the locus where political intervention could have changed things, where politics can happen. Zygmunt Bauman’s theory of modernity and his theory about the place and relevance of the Holocaust in modernity have given sociological and contemporary relevance to this alternative historical-political logic of contingency (Bauman 1989).

50. In the social and historical fields, politics is only the name of the contingency that strikes at the heart of systemic necessity. An ontology of contingency provides the model with which to think together both the possibility, and the possibility of the repetition of, catastrophe, as the one heritage of modernity, and the contingency of catastrophe as logically entailing the possibility of its opposite. Modernity is ambiguous because it provides the normative resources to combat the apparent necessity of possible systemic catastrophes. Politics is the name of the struggle drawing on those resources.

51. This ontology enables us also to rethink the relationship of modern subjects to rights. Modern subjects are able to consider themselves autonomous subjects because legal recognition signals to them that they are recognised as full members of the community, endowed with the full capacity to judge. This account of rights in modernity is precious because it provides an adequate framework to understand real political struggles, as fights for rights. We can see now how this account needs to be complemented by the notion of contingency that undermines the apparent necessity of the progress of modernity. Modern subjects know that their rights are granted only contingently, that the possibility of the impossible is always actual. This is why rights should not be taken for granted. But this does not imply that they should be rejected as illusion, on the grounds that they were disclosed as contingent in the horrors of the 20th century. Instead, their contingency should be the reason for constant political vigilance.

52. By questioning the rejection of modern rights, one is undoubtedly unfaithful to the letter of Benjamin. Yet, if one accepts that one of the great weaknesses of the Marxist philosophy of revolution was its inability to constructively engage with the question of rights and the State, then it might be the case that the politics that define themselves as the articulation of demands born in the struggles against injustice are better able to bear witness to the "tradition of the oppressed" than their messianic counterparts.

 

Jean-Philippe Deranty was educated in France (Ecole Normale Supérieure, Paris IV-Sorbonne). He teaches French and German Philosophy at Macquarie University, Sydney. His latest publications include a number of articles on contemporary political theory. He is currently writing a book on Axel Honneth and the ethics of recognition. Email: jderanty@scmp.mq.edu.au

Author’s Note

I would like to thank the organizers of the "Unassumable Responsibility" conference, Catherine Mills and Fiona Jenkins, for their thoughtful comments which have helped me better understand the work of Giorgio Agamben.

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