'Giorgio Agamben on Security, Government and the Crisis of Law' 21 (3) Griffith Law Review 2012

GIORGIO AGAMBEN ON SECURITY, GOVERNMENT AND THE CRISIS OF LAW

Daniel McLoughlin*

In State of Exception, Giorgio Agamben argues that contemporary security politics is an extension of a crisis into which the liberal constitutional state entered after World War I, when the state of exception ʻbecame the ruleʼ. Agamben has been criticised for focusing too narrowly on the problem of sovereignty and for failing to explain the causes of the crisis he identifies, yet he also describes this process as one in which the state of exception becomes a ʻtechnique of governmentʼ. Building on fragments disseminated across Agambenʼs work, I argue that his account of the crisis of legality should be understood in the context of Michel Foucaultʼs work on biopolitics and government, the problem of total war, and the rise of the administrative state. By drawing on these reference points, the article develops an account of the context informing the crisis of legality, and offers a new interpretation of what is at stake in the ʻnormalisation of the state of exceptionʼ.

Giorgio Agamben’s analysis of sovereignty and the state of exception in the Homo Sacer project has been profoundly influential as a way of theorising contemporary state violence. The second volume of the project, State of Exception, delivers a caustic account of contemporary constitutional democracy, arguing that the use of emergency powers over the course of the twentieth century has radically undermined the rule of law. According to Agamben, this crisis of legality began in the period of political instability from 1914–45, and since that time has intensified to the point where the ‘state of exception has now reached its maximum worldwide extension’.1 While this history focuses on the internal politics of ostensibly liberal democratic states, the closing pages of the work also make it clear that Agamben believes that contemporary politics is characterised by state violence that also ignores ‘international law externally’.2

Translated into English in 2005, this analysis of the fate of liberal constitutionalism found particularly fertile intellectual ground in the early years of the new millennium, amidst a politics dominated by the fear of terrorism, the rhetoric of a potentially endless ‘war on terror’ and a legal

* Vice-Chancellor's Postdoctoral Research Fellow, Faculty of Law, University of New

South Wales. 1 Agamben (2005), p 87. 2 Agamben (2005), p 87.

MCLOUGHLIN: AGAMBEN ON SECURITY, GOVERNMENT AND THE CRISIS OF LAW 681

response that indefinitely restricted rights and expanded executive power.3 There are, however, two important limits to Agamben’s analysis in State of Exception. First, the history of emergency powers that he develops focuses heavily on the period between World Wars I and II, and his references to the constitutional history of the second half of the century are scant. This lack of attention to the post-war legal situation is perhaps explained by a brief aside in which he notes that, in this period, ‘the declaration of the state of exception has been gradually replaced by an unprecedented generalisation of the paradigm of security as the normal technique of government’.4 This nonetheless raises a new issue for using Agamben’s work to analyse the contemporary political constellation: what does he mean by the ‘paradigm of security’, and how is its use as a ‘technique of government’ related to the law and politics of the exception?

Second, several commentators have argued that the state of exception is an inadequate analytical tool for understanding the complexities of contemporary politics as it focuses on law at the expense of other forms of political power and organisation. For example, in a barely veiled critique of Agamben in Commonwealth, Hardt and Negri criticise the ‘apocalyptic tone’ of contemporary critical theory. One of the decisive problems with this ‘excessive focus’ on the problem of authoritarianism, state violence and the sovereign exception is that ‘economic and legal structures of power tend to be pushed back into the shadows’5 when these provide the horizon of intelligibility for contemporary state practices: ‘the political is not an autonomous domain but one completely immersed in economic and legal structures’.6 In a similar vein, Steven Colatrella argues that Agamben’s emphasis on law and sovereignty leads to a marginalisation of the economic and socio-political, and hence to a ‘total inability to explain why something is happening rather than to show us that it is’.7 A number of commentators have also argued that Agamben’s fetishisation of sovereignty is potentially politically problematic as, without a systematic critique of the way in which the socio-political and economic structures of liberal societies are implicated in the development of security politics, the idea of the exception can play into a politics that mourns and attempts to restore a lost liberal status quo.8

3 Those who adopt elements of Agamben’s approach include Paye (2007), Munster (2004),

Minca (2006), Dyzenhaus (2006), Hardt and Negri (2004), Diken and Laustsen (2005) and Burke (2007).

4 Agamben (2005), p 14. 5 Hardt and Negri (2009), p 4. 6 Hardt and Negri (2009), p 5. 7 Colatrella (2011), p 97. In a similar vein, see Huysmans (2008); Neal (2004), p 373; Neal

(2006), pp 31–46; Burke (2007), p 10. 8 See Neocleous (2008), pp 70–75; Johns (2005), p 629; Colatrella (2011), p 97. While

Agamben’s response to the normalisation of the state of exception is to argue for a revolutionary politics, the most common political and theoretical reaction from critics of the ‘exceptionalism’ of the ‘war on terror’ has been to argue for a defence of liberal values of rights and the rule of law. This position is very common among constitutional scholars

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This article responds to these issues by analysing and extending Agamben’s account of the crisis of legality. I examine the factors driving the normalisation of the state of exception, and clarify how he understands the contemporary political conjuncture. I do so by drawing on the idea of biopolitics, which Agamben draws most explicitly from Michel Foucault, who argues that modernity sees the emergence of new forms of power devoted to ‘the administration of bodies and the calculated management of life’9 that supplant and transform the juridical order. While the analysis of biopolitics plays a crucial role in the Homo Sacer project as a whole, it is conspicuously absent from State of Exception’s account of the crisis of liberal legality.10 Nonetheless, it is clear that it does play an important (if subterranean) role in Agamben’s thinking about the crisis of legality – indeed, the title of the first chapter, ‘The State of Exception as a Paradigm of Government’, alludes to Foucault’s lectures on government, which developed out of his analysis of biopolitics.11

The Normalisation of the State of Exception There are a range of different traditions and account of the rule of law and the fundamental characteristics of a liberal democratic state. Nonetheless, it

addressing the state response to contemporary terrorism. As an example in the Australian context, see Lynch and Williams (2006). In the reception of Agamben’s work, a number of authors have agreed with his diagnosis of a crisis of law while arguing for such a defence of rights and the rule of law: see Dyzenhaus (2006); Sharpe (2005).

9 Foucault (1978), p 140. Technically, Foucault uses the term ‘biopower’ to describe the emergence of forms of power aimed at the administration of life, and argues that this has two poles: the disciplines and the ‘biopolitics of the population.’ See Foucault (1978), p 136; Foucault (2003), pp 245–49. However, in recent literature inspired by Foucault, such as the work of Agamben, the term ‘biopolitics’ has come to designate politics and power that has ‘life’ as its target.

10 Agamben presents the analysis of sovereignty in the first volume of the project, Homo Sacer: Sovereign Power and Bare Life as a ‘correction’ or ‘completion’ of Foucault’s analysis of biopolitics. The work draws upon the idea of biopolitics to explain the normalisation of the state of exception in the specific instances of totalitarianism and the use of concentration camps by democratic and totalitarian states. Foucault is also profoundly influential for Agamben’s recently translated The Kingdom and the Glory. This work builds on Foucault’s lectures on the ‘art of government’, which developed out of his analysis of biopolitics, by developing a theological genealogy of government and economy.

11 The Kingdom and the Glory provides a genealogy of the ideas of government and economy, focusing in particular on their development in and through Trinitarian theology. Throughout the book, Agamben highlights continuities between the theological paradigm of government and the governmental practices of liberalism, and in an appendix he argues that thinkers such as Rousseau and Smith explicitly drew upon this theological heritage in theorising the problem of government in liberal democracy. In this article, however, I am not focusing on Agamben’s account of the pre-history of liberal democratic government, but rather its crisis in the twentieth century. Rather than focus specifically on The Kingdom and The Glory, I draw on a wide range of sources from across his work in order to address this issue.


seems appropriate, given Agamben’s use of Schmitt, to draw upon the German jurist. In Legality and Legitimacy, Schmitt describes the form of state that dominated nineteenth century Europe as a ‘legislative state’ (or Rechtstaat in the German tradition). This was a state form in which norms were the ‘highest expression of community will, and in which ‘not men and persons rule, but rather, where norms are valid’.12 The pre-eminent body within the state was parliament, which did not rule directly but rather established ‘valid norms’, which were then applied by state officials who acted ‘on the basis of law’.13 In Political Theology, however, Schmitt attempts to open a space for discretionary state power through an analysis of the relationship between law, state and the emergency situation. Schmitt argues that ‘there exists no norm that is applicable to chaos’,14 and hence the effective operation of the law requires a certain minimum of order. As such, if an ‘extreme emergency’ threatens the order that law needs to function, the state may take the decision to suspend the application of the law, thereby allowing it to take measures that are necessary to the restoration of order and the reapplication of the law. This decision is ‘sovereign’ because it is legally unrestricted: when looked at normatively, it ‘emerges from nothingness’.15

Drawing on this framework, Agamben argues that the legal order is a double structure comprised of ‘two somewhat antagonistic yet functionally connected elements’:16 the norms of law and the ‘lawless’ or anomic space of the state of exception. He describes the state of exception as a ‘zone of indistinction’ between the inside and outside of the law, as the state of exception is outside the law (it suspends the norms of law) and yet, for Schmitt, it remains a part of the law (as it makes the application of law possible). According to Agamben, however, the twentieth century witnessed a decisive transformation in the role played by the state of exception: citing the eighth of Walter Benjamin’s ‘Theses on the Philosophy of History’, he asserts that the ‘state of emergency has become the rule’.17 This is, he argues, leading to a crisis of the juridico-political tradition as emergency and normality, anomie and law, have entered into a zone of radical and permanent indistinction. This undermines the ability of the sovereign decision on the exception to perform its historical function of producing anomie to restore law and order18 and, as a result, the ‘great State structures’ have entered ‘into a process of dissolution’.19

State of Exception points to the use of the exception by democratic countries, and its corrosive effect on the rule of law, as evidence of this

12 Schmitt (2004), p 4. 13 Schmitt (2004), p 4. 14 Schmitt (1985), p 13. 15 Schmitt (1985), p 31. 16 Agamben (2005), p 86. 17 Agamben (1998), pp 9, 12. 18 Agamben (2005), pp 58–59. 19 Agamben (1998), p 12.


process. The use of the state of exception by democracies can be traced as far back as the declaration of a state of siege during the French Revolution, the English doctrine of martial law and Lincoln’s suspension of habeas corpus during the American Civil War. However, this intensified radically across the liberal democratic world in the period of war and political instability from 1914–45, which saw the development of a range of techniques that transferred power from parliament to the executive (including executive dictatorship, delegation of legislative power and law-making by administrative decree). The most extreme example of this process was the collapse of the Weimar Republic:

save for a pause between 1925 and 1929, the governments of the Republic … made continual use of Article 48, proclaiming a state of exception and issuing emergency decrees on more than two hundred and fifty occasions; among other things, they employed it to imprison thousands of communist militants and to set up special tribunals authorised to pronounce capital sentences.20

The state of exception also provided a crucial tool in the Nazis’ seizure of power when they indefinitely suspended the articles of the Weimar Constitution concerning personal liberties through the ‘Decree for the Protection of the People and the State’ on 28 February 1933. However, the regular use of emergency powers was not confined to the tumultuous politics of the Weimar state, being common across liberal democracies in the period 1914–45.21

Moreover, briefly surveying the constitutional situation in Germany, Italy, France and the United States, Agamben argues that emergency powers have continued to play a central role in the legal life of ostensibly democratic nations since the defeat of fascism and the end of World War II.22 The transfer of power to the executive involved in these measures has led to the ‘provisional abolition of the distinction among legislative, executive, and judicial powers’.23 This means that one can no longer describe states in which these mechanisms have become entrenched as parliamentary systems subject to the rule of law: as such, ‘at the very moment when it would like to give lessons in democracy to different traditions and cultures, the political culture of the West does not realize that it has entirely lost its canon’.24

According to State of Exception, the twentieth century saw a decisive transformation in the juridical structure of ostensibly liberal democratic

20 Agamben (2005), p 15. 21 Agamben (2005a), pp 11–22. See Agamben (2005), pp 12–22; Rossiter (1948); Neocleous

(2008), pp 50–57 22 Agamben (2005), pp 15, 17–18. A more thorough account of the role of states of

emergency in post-war government is found in Neocleous (2008), pp 59–68. 23 Agamben (2005), p 7. 24 Agamben (2005), p 18.


nations as a result of the regular use of emergency powers. While the period from 1914-45 is the decisive historical moment for the emergence of this crisis of liberal democratic constitutionalism, we continue to inhabit the political paradigm that emerged at this time. However, while State of Exception identifies this crisis, it provides little by way of explaining why this process has occurred: emphasising the effects of crisis politics and the use of emergency powers on liberal democratic constitutionalism, the text lacks a structural analysis of the social, political and economic factors that are driving the normalisation of the state of exception.

Agamben has often been reproached for a lack of detail in his treatment of history.25 Agamben, however, asserts that he is ‘not a historian’26 and, citing Foucault’s analysis of Jeremy Bentham’s design for the panopticon in Discipline and Punish as a precedent, asserts that his method is to work with paradigms. These are singular examples (such as the homo sacer or the musselmann), which allow him to illuminate a broader historical structure: in the case of Homo Sacer, the limit of law and state, along with the crisis of law in the twentieth century.27 Agamben’s analytical emphasis on structural analogies between singularities across spans of time and space helps to explain the relative dearth of analysis of social structures – indeed, he explicitly warns that such a method should not ‘be confused with a sociological analysis’.28 Nonetheless, critics such as Negri and Colatrella raise an important point. If we are to mobilise Agamben’s work to help us understand the present political conjuncture, and how we might respond to this situation, it is important to understand the structural context of the transformation that he identifies through his paradigmatic method. Indeed, while Discipline and Punish does deploy the panopticon as a paradigm for illuminating the nature of disciplinary power, and Foucault is wary of analysing history in terms of causation, he nonetheless analyses a complex manifold of historical events and processes that inform and intersect with the development of disciplinary power, including the incapacity of apparatuses of juridical power to deal with the social and political transformations of early modernity, and the development of new forms of knowledge in the human sciences. Agamben also provides some of this kind of historical context in Homo Sacer: Sovereign Power and Bare Life, which cites the development of modern biopolitics and the crisis of the order of European nation-states after World War I to explain the normalisation of the exception in the context of totalitarianism and the concentration camps.29 As such, the narrow focus on the normalisation of the exception at the level of the juridical code in State of Exception calls out for the kind of structural analysis I develop in this article.

25 Mills (2008), pp 86–87 26 Raulff (2004), p 610. 27 Raulff (2004), p 610. 28 Raulff (2004), p 610. 29 Agamben (1998), pp 121–22, 131–32.


There are, then, two possible responses to such critiques – the first exoteric, the second esoteric. The most obvious reason for the normalisation of the state of exception in the period from 1914–45 is that the state of exception is, in Schmitt’s terms, meant to be a response to an ‘extreme emergency’, and this was a period of war and political instability. However, State of Exception also repeatedly uses the Foucauldian language of government in order to capture the political transformation that occurs during this interwar period, which he describes as ‘a laboratory for testing and honing the functional mechanisms and apparatuses of the state of exception as a paradigm of government’.30 While State of Exception does not analyse the relationship between government and the state of exception, it is clear that it plays a crucial role in his account of the rise of executive rule and state violence in the twentieth century. As such, we need to turn to Foucault in order to develop an adequate account of the normalisation of the state of exception and its continued role in contemporary politics. In subsequent sections, we will examine the relationship between war and biopolitics, and the sense in which the state of exception continues to operate as a ‘technique of government’.31

Michel Foucault on Security and Government Foucault developed his analysis of government in two lecture series delivered at the College de France: Security, Territory, Population (1977–78) and The Birth of Biopolitics (1978–79). These open by contrasting the ‘biopolitics of the population’ with law and discipline as mechanisms through which power operates.32 Law was the principal technology of power from the Middle Ages through to the seventeenth or eighteenth centuries. It operated within the framework of territorial sovereignty, and ruled over citizens through a normative system of prohibitions that created a division between the licit and illicit.33 These prohibitions were backed by punishments exercised – often in spectacular fashion – against the body of the transgressor.34 Law also rules by governing the individual conceived as a juridical subject: someone capable of voluntary action, who can thereby be dissuaded from actions through sanction and punishment.

However, the juridical code gradually came to be supplemented and transformed by the operation of discipline, which became the dominant mode through which power operated by the eighteenth century. Discipline operates within the context of specific institutions (such as prisons, army barracks and asylums), and intervenes at the level of the individual body through corrective training in order to produce a normalised individual.

30 Agamben (2005a), p 7. 31 Agamben (2005), pp 2, 6, 14. 32 Foucault (2007), pp 4–23. 33 Foucault (2007), p 5. 34 See, most famously, the execution of Damiens, the regicide at the opening of Discipline

and Punish (Foucault (1977), pp 3–6.


Where the law inherited from the Middle Ages had operated principally through prohibition, disciplinary regulation determines what one must do by providing a series of prescriptions for behaviour.35 As Foucault points out, the development of discipline did not render juridical mechanisms irrelevant, but rather supplemented and transformed the way they worked. Thus, in the field of law upon which Foucault focuses – criminal law – the rise of discipline means that prohibitions against criminal act by a system of social surveillance, and punishment shifts from spectacular violence inflicted against the body to incarceration and individual correction.36

The ‘biopolitics of the population’ began to emerge in the eighteenth century with the development of apparatuses of security.37 Security measures are interventions that seek to regulate phenomena affecting the life of a population, such as disease, pollution or grain scarcity, through policies such as public health, housing and urban planning.38 The object of intervention of these measures is a multiplicity of people conceived of as a single ‘species body’ or ‘population’. The figure of the population emerged in the eighteenth century, and was connected to the development of new forms of knowledge such as statistics, economics and demographics, which allowed for the measurement and analysis of the conditions of life of the population of a territory as a whole. These forms of knowledge made it possible for the population to be conceived of as a singular living organism with a particular set of biological characteristics, including ‘propagation, births and mortality, the level of health, life expectancy and longevity, with all the conditions that can cause these to vary’.39

The logic of security envisages and engages with the world in a fundamentally different way from both law and discipline. Law operates, according to Foucault, principally at the level of the imaginary – that is, it ‘imagines the negative’, formulating ‘all the things that could not and should not be done by imagining them’.40 The sphere of operation of discipline is ‘complementary to reality’: the presupposition of disciplinary power is that ‘Man is bad, and has evil thoughts and inclinations etcetera’,41 a fact that needs to be overcome through corrective training that works with and against that reality. Security, by contrast, requires ‘standing back sufficiently so that one can grasp the point at which things are taking place, whether or not they are desirable. This means trying to grasp them at the level of their nature, or let’s say, grasping them at the level of their effective reality.’42 When the state confronts a problem such as disease or grain scarcity, it may

35 Foucault (2007), p 46. 36 Foucault (2007), p. 4. 37 Foucault (2007), p 6. 38 Foucault (1994), p 216. 39 Foucault (1978), p 139. 40 Foucault (2007), p 47. 41 Foucault (2007), p 47. 42 Foucault (2007), p 47.


not be possible to eliminate the phenomenon, but it can try to regulate it in a way that is optimal for the life of the population. This requires a thorough knowledge of the nature of the things that are to be regulated and the relations between them: the ‘effective reality’ constituted by a whole set of environmental and social givens (rivers, marshes, hills, individuals, houses, etc.). The technical problem faced by security measures is that of circulation and causality: how, given their nature, are different elements likely to interact with and affect one another? The field within which these interventions work is what Foucault describes as the ‘milieu’, which is the ‘space of possible events’43 in which the interaction between these elements unfolds over time. Measures of security seek to intervene within the milieu and guide unfolding processes that are, by their nature, inherently uncertain: ‘in a word, security mechanisms have to be installed around the random element inherent in a population of living beings so as to optimize a state of life’.44

After introducing the theme of security and juxtaposing it with his previous analyses of law and discipline, Foucault’s lectures shift conceptual registers somewhat, introducing the problematic of the ‘art of government’.45 He argues that the idea of government began to emerge as a central problem in the political literature of the West in the sixteenth century, and the essential issue in these works was the introduction of economy into political practice.46 In Ancient Greek, economy (oikonomia) referred to the art of household management, which was devoted to successfully arranging the relations between people and things so as to maximise the wealth and well-being of the household. The introduction of the idea of government into the political sphere means that the state is to exercise ‘supervision and control of its inhabitants, its wealth, and the conduct of all and each, as attentive as that of a father’s over his household and goods’.47 From the beginning, the task of government was conceived as being to create the optimal arrangement of individuals in their relations with their social, environmental and economic context to ensure their prosperity.48 While government emerged as a problem in the sixteenth century, it was in the eighteenth century that its theory and practice accelerated, as a result of the emergence of the figure of the ‘population’, forms of knowledge devoted to analysing the ‘effective reality’

43 Foucault (2007), p 20. 44 Foucault (2003), p 246. 45 Foucault explains the shift in The Birth of Biopolitics. He states that the focus of his

research is the appearance of the population as a figure of knowledge and of political intervention and this figure is the basis on which biopolitics could be formed. Before being able to grasp the formation of ‘biopolitics’, however, he asserts that it is necessary to understand the specific ‘governmental’ regime of liberalism and its emergence from the absolute state. See Foucault (2008), pp 21–22.

46 Foucault (2007), p 95. 47 Foucault (2007), p 97. 48 Foucault (1994), p 209.


of things (in particular the political economy of the Physiocrats)49 and the increasing prominence of apparatuses of security as mechanisms of intervention and regulation.

According to Foucault, the development of government as a function of the state, and the corresponding deployment of apparatuses of security, mean that ‘law recedes; or rather, law is certainly not the major instrument in the perspective of what government should be’.50 One of the decisive drivers of this relative decline of law is a transformation in the ends of government and the means used to attain them. Foucault argues that, for jurists and theologians, the aim of sovereign authority was the ‘attainment of the common good’ and the content of this ‘good’ is obedience to the law: ‘the common good exists when all subjects obey the law without fail, perform their appointed tasks well and respect the established order’.51 Sovereignty thus presupposed the idea of an established order: the end of sovereignty is obedience to this order, and law is the political technology through which sovereign power maintains and produces this order. The end of government, by contrast, does not derive from an idea of lawfulness, but rather from the nature of the things being governed. This gives rise to a series of specific ends that pertain to the particularity of the things themselves (the greatest amount of wealth; sufficient means of subsistence; an increase in population),52 and necessitates a shift in the means used to attain these multiple ends. As government operates through the administration of the relationship between men and things such as ‘wealth, resources, means of subsistence, and, of course, the territory with its borders, qualities, climate, dryness, fertility and so on’,53 it not only presupposes knowledge of the particularity of things, but also forms of intervention that are adequate to that particularity. As such, we see a shift from laws that apply to juridical subjects to security measures that intervene in a milieu.

As Foucault points out, however, the development of security does not consign either law or discipline to irrelevance. To take the example of criminal law again, the development of security supplements the legal code and disciplinary apparatuses of surveillance and normalisation with statistical analyses of criminality, and the development of policies that modify the conditions of life of the population in ways that manage criminality in the most cost-effective manner: ‘the general question basically will be how to keep a type of criminality, theft for instance, within socially and economically acceptable limits and around an average that will be considered as optimal for a given social functioning’.54 For Foucault, then, 49 The Physiocrats were a school of eighteenth-century French economists who argued for

the existence of natural economic laws. Foucault identifies them as the historical origins of liberal governmentality and its ideal of not governing too much.

50 Foucault (2007), p 99 51 Foucault (2007), p 98. 52 Foucault (2007), p 99. 53 Foucault (2007), p 96. 54 Foucault (2007), p 5


the emergence of new apparatuses and institutions of power rearticulates the way in which the older forms operate by placing them within a new configuration:

there is not the legal age, the disciplinary age, and then the age of security … in reality, you have a series of complex edifices in which, of course, the techniques themselves change and are perfected, or anyway become more complicated, but in which what above all changes is the dominant characteristic, or more exactly, the system of correlation between juridico-legal mechanisms, disciplinary mechanisms, and mechanisms of security.55

With the rise of security, then, there is a ‘governmentalisation’56 of the state, and the law becomes subordinated to the logic of government, deployed as a tactic in the administration of things in order to optimise the well-being of a population:

it is not a matter of imposing law on men, but of the disposition of things, that is to say, of employing tactics rather than laws, or as far as possible, employing laws as tactics, arranging things so that this or that end may be achieved through a certain number of means.57

Biopolitics and (Total) War Foucault’s lectures on government indicate that political modernity has seen a transformation of the juridical order as a result of the rise of government and the apparatuses of security through which practices of government are put to effect. If, however, ‘apparatuses of security’ have existed since the eighteenth century, and have been transforming the legal order since that time, why was it only in the first half of the twentieth century that the development of security coincided with a crisis of legality? This is a particularly important question, as Foucault’s analysis of government indicates that apparatuses of security can and have coexisted with a range of juridical practices, including those of the absolute state and classical liberalism. What then, for Agamben, is it that precipitates the normalisation of the state of exception and its emergence as a ‘technique of government’? Although Agamben does not explicitly address this problem, in State of Exception or elsewhere, there is an obvious candidate given that the state of exception is ostensibly a response to an ‘extreme emergency’: the experience of war and radical political instability that consumed the democratic world from 1914 to 1945. In this section, I argue that what is decisive for the transformation of the legal order that Agamben maps is not simply the

55 Foucault (2007), p 8 56 Foucault (2007), p 109. 57 Foucault (2007), p 99.


existence of war or political crisis, but the particularly biopolitical nature of warfare in this period.

Foucault touches upon the relationship between twentieth-century warfare and biopolitics in the final chapter of History of Sexuality: Volume 1, which famously opposes the sovereign right ‘to take life or let live’ to biopower (consisting of the disciplines and biopolitics of the population), which exerts ‘a positive influence on life’ and endeavours ‘to administer, optimize, and multiply it, subjecting it to precise controls and comprehensive regulations’.58 Foucault argues that it is the logic and mechanisms of biopower that have come to dominate the modern state, and that this has diminished the role played by sovereign power and transformed the legal system, which comes to operate ‘more and more as a norm’.59 This, however, presents a paradox: while biopower is dedicated to strengthening and optimising life, the wars of the twentieth century have been the largest and bloodiest in history. Foucault resolves this problem by arguing that these wars were not simply a return of the old sovereign power over death, but a result of the colonisation of this sovereign function by biopower. The catastrophic nature and scale of the wars of the twentieth century, and the emergence of phenomena such as genocide, are explained by the fact that war is no longer a matter of conflict between sovereigns or states, but a life-and-death struggle between populations:

Wars are no longer waged on behalf of a sovereign who must be defended; they are waged on behalf of the existence of everyone; entire populations are mobilised for the purpose of wholesale slaughter in the name of life necessity: massacres have become vital. It is as managers of life and survival, of bodies and the race, that so many regimes have been able to manage so many wars, causing so many men to be killed.60

The blurring of the sovereign and biopolitical functions of the state is clearly an issue that exercises Agamben’s political imagination. This problem is central to Homo Sacer’s analysis of Nazism and the camp system which, he asserts, collapsed the distinction between ‘politics’ and ‘police’.61 These are

58 Foucault (1978), p 137. 59 Foucault (1978) , p 144. 60 Foucault (1978), p 137. In Society Must Be Defended, Foucault suggests that it is

specifically racism that allows for the exercise of the state’s sovereign power to kill within the context of biopower. This is because racism ‘introduces a break into the domain of life that is under power’s control: the break between what must live and what must die’. The caesura that racism inscribes within a population then distinguishes between the life that the state has a positive duty to optimise and the life that it must kill, precisely in order to optimise the life of the first portion of a population. This analysis could certainly be extended to Agamben’s account of Nazi biopolitics, but far less so to his analysis of contemporary security politics.

61 Agamben (1998), p 147. There is a host of literature on Agamben’s adoption of the interrelationship between the sovereign power to kill and the biopolitical power to foster


terms that Agamben draws from Physiocrats, who were the first thinkers to seriously develop a form of governmental reason: the ‘police science’ that characterised the absolute state. While the Physiocrats distinguished between the ‘care and growth of the citizens’ life’62 and the state’s properly ‘political’ task of protecting the population against internal and external enemies, Agamben argues that Nazi biopolitics saw the merger of these two functions. While the fundamental task of the Nazi state was biopolitical (being to secure ‘the racial traits and hereditary health of the body of the people’),63 it pursued this task both through ‘positive’ biopolitical programs designed to foster the life of the German people (including campaigns against tobacco and campaigns for healthy wholegrain diets)64 and by waging war against the ‘racial enemies’ of the German people (through laws against intermarriage and procreation, and measures that suspend their basic rights, including denationalisation, and the camp system). In Nazi biopolitics, then, the exercise of sovereign power became colonised by the logic of biopower, and in the process, biopolitics became thanatopolitical – the power to put to death wielded in the name of fostering life. The juridical apparatus that allowed the Nazi state to wield this power of death was the state of exception, which thereby became permanently integrated into the system of rule.

It is clear, however, that Agamben does not see the indistinction between sovereignty and biopolitics as being limited to totalitarianism, as he repeatedly characterises contemporary warfare in terms of an indistinction between politics and police: in ‘Security and Terror’, for example, he asserts that the reduction of politics to police that is occurring in contemporary security politics is leading to a proliferation of violence in which ‘the difference between state and terrorism threatens to disappear’.65 Similarly, when discussing the NATO bombing of Yugoslavia and the first Gulf War in a 2004 interview, Agamben cited Simone Weil to sound a warning about the indistinction between the sovereign power to wage war and socio-political regulation: ‘it is wrong to consider war to be a fact concerned solely with external politics—it should also be considered a matter of internal politics’.66 These are, however, brief references and, aside from the characterisation of the exception as a ‘technique of government’, State of Exception does not explicitly analyse the crisis of legality in biopolitical terms. In order to develop the argument for the importance of biopolitical warfare to the crisis of legality, then, I turn to Ernst Junger’s essay ‘Total Mobilisation’, which provides a far more detailed account of the impact of World War I on the social,

life: see, for example, Ojakangas (2005a); (2005b); Dillon (2005); Margaroni (2005); Patton (2007); Gratton (2006); Rabinow and Rose (2006).

62 Agamben (1998), p 147. 63 Otmar Verschuer (1936), Rassenhgiene als Wissenschaft und Staatsaufgabe, Frankfurt,

p 5 in Agamben (1998), p 147. 64 Proctor (1999). 65 Agamben (2001), para 4. 66 Agamben (2004), p 124.


political and economic organisation of Western democracies than that provided by either Agamben or Foucault.67

Writing in 1930, Junger argued that World War I was an epochal historical event that laid waste to the liberal civilisation of the nineteenth century.68 According to Junger, up until the late nineteenth century, the state was able to wage wars ‘that the people’s representatives were indifferent towards or even against’,69 as such conflicts required only a partial mobilisation of men and resources. However, the development of mass democracy and industrialisation in Europe had led to the emergence of ‘total warfare’. To successfully fight a total war, the state requires large volumes of troops, along with the uninterrupted operation of industry, in order to keep the front lines supplied. As such, the decisive factor in deciding the fate of a total war is not good leadership of troops, or individual acts of heroism, but the resources of a state and its capacity to effectively mobilise the economy and the population as a whole.

The development of ‘total mobilisation’, then, led to a transformation in the relationship between state and society: on the one hand, the state became far more dependent on the enthusiasm of the populace for war; on the other, the war effort justified a massive expansion in the powers of the state, allowing the executive to manage the mobilisation and organisation of the country’s resources, including the ‘curtailment of individual liberty’, economic planning and the integration between industry and army.70 Furthermore, total mobilisation undermines the differences between civilian life and the front line, and between war and peace: comprehensively integrating civilians and industry into the war machine turns these into a target; the politics and economies of many countries

67 While Foucault provides the most overt influence on Agamben’s account of political

modernity, Agamben is also influenced by two thinkers of the political right who had intellectual associations with Junger: Carl Schmitt and Martin Heidegger. Junger was deeply influenced by Carl Schmitt (Neaman 1999, p 31), and the critique of technology and mass democracy that he argues are at the root of the phenomenon of total warfare has strong echoes of Schmitt’s critique of instrumental rationality (Schmitt 1996b, pp 15–18). His analysis of the interpenetration between state and society also echoes Schmitt’s account of the socialisation of the state with the rise of the quantitative social state: Schmitt (1999). Heidegger’s political thought was in turn influenced by Junger’s ‘Total Mobilisation’, which he interpreted through the problem of nihilism and the will to power that he read out of Nietzsche: Wolin (1993), p 121. Although this paper analyses Agamben’s relationship with Foucault, his analysis of biopolitics is also shaped by the Hegelo-Kojevian problematic of the end of history – for example, see Agamben (2004). This is a metaphysical as well as a political problem, and is influenced by his engagement with Heidegger and the problem of nihilism. There is, then, a sense in which the framework that Agamben employs engages with the theme of total war in a way that Foucault does not – Agamben presents it as a decisive rupture that brings to light the emerging nihilism of European civilisation.

68 Junger (1993), p. 125. There are, however, important historical antecedents for total mobilisation – for example, in the levee en masse of the French Revolutionary War, and the role of mass mobilisation and industrial power in the American Civil War.

69 Junger (1993), p 125. 70 Junger (1993), p 127.


becomes permanently geared towards the waging of war; and sustained total mobilisation gives rise, in many countries, to severe economic crises and political unrest even during ‘peace time’, up to and including open civil war. The need for total mobilisation generated by industrialised warfare thus meant that war was no longer an occasional experience that principally concerned the state, but had become a fundamental structuring principle of the socio-political and economic orders of the belligerent nations.

The analytical framework that Junger deploys (a critique of modern technology and its relationship with progress) is different from the Foucauldian analysis of biopolitics that Agamben draws upon, and the politics that drives Junger’s work (a fascist aesthetics of war) is profoundly at odds with that of both Agamben and Foucault. Nonetheless, Junger helps shed light on Agamben’s account of the normalisation of the state of exception by connecting it to the biopoliticisation of warfare in the twentieth century warfare that Foucault highlights. Total war is not simply a conflict between states, but one between populations, and this transforms the relationship between the sovereign function of waging war and the biopolitical function of social regulation. Total war necessitates the total mobilisation of the economic and social resources of a country for the purposes of war, as it justifies a greater role for the state’s regulation of economy and society.

The particularly biopolitical nature of total war thus plays a crucial role in the deployment of emergency measures as a mechanism of social, economic and political regulation, justifying the ‘exceptional’ legal measures that allow the state to quell political opposition, put down strikes, and organise production. However, such measures continue to be used once formal hostilities between nation-states are at an end as a result of the social, political, and economic crises that emerge in many countries in the wake of World War I (along with, of course, a reluctance on the part of the state to relinquish newly acquired powers).71 As a result, there is a blurring of the ‘normal’ juridical powers of the state and those that are considered exceptional. Along with the continuation of political crisis (up to and including revolution and civil war), the continued use of ‘exceptional’ legal powers permanently transforms the relationship between state and society, and produces an indistinction between war and peace – or, in Agamben’s terms, between the state of emergency and the normal situation.

Forms of Exceptionalism Agamben’s ‘brief history’ of the state of exception draws heavily on Clinton Rossiter’s seminal 1948 work, Constitutional Dictatorship. The central question of Rossiter’s work is ‘Can a democracy fight a successful total war and still be a democracy when the war is over?’72 Rossiter argues that the ‘incontestable facts of history’73 illustrate that ‘the institutions and methods

71 Agamben (2005), pp 12–22; Rossiter (1948), pp 295–96. 72 Rossiter (1948), p 3. 73 Rossiter (1948), p 3.


of dictatorship have been used by the free men of the modern democracies during periods of national emergency’.74 Agamben, however, asserts that this is contradicted by Rossiter’s own conclusions: that ‘the instruments of government depicted here as temporary ‘crisis’ arrangements have in some countries, and may eventually in all countries, become lasting institutions’.75 According to Agamben, the period of total war has resulted in a profound transformation in the juridical and political structures of the belligerent nations. The decisive question, then, is how the state of exception continues to operate in the post-war political situation, and how this relates to practices of government. Agamben, however, tends to speak about the post-war political situation in very general terms (the exception has ‘become the rule’ and is a ‘technique of government’ that has ‘reached its maximum worldwide deployment’).76 In this section, I develop on the previous analysis of total war to specify a number of different political and juridical roles played by the state of exception in contemporary politics.

One of the decisive effects of total war, according to Junger, was the tendency to demolish the difference between war and peace – or, in Agamben’s terms, between the emergency and normal conditions. Similarly, Agamben argues that we are currently faced with the seemingly ‘unstoppable progression’ of a ‘global civil war’.77 Although Agamben does not explain what he means by this in State of Exception, he does flesh the idea out in Means Without Ends in two different directions. The first of these is the emergence of the ‘sovereign police’.78 Modern political philosophy has historically distinguished between the state’s right to use coercive violence against its citizens and the sovereign right to go to war against enemy states. This was accompanied by a distinction between the legal regulation of violence within a state’s territory and the regulation of war between states through international law.79 Within the contemporary political horizon, however, states no longer declare war against one another, and war is disguised as a police operation, in which the ‘outright invasion of a sovereign state’ is ‘presented as an act of internal jurisdiction’.80 This, for Agamben, confirms Carl Schmitt’s assertion that ‘every war in our time has become a civil war’.81

74 Rossiter (1948), p vii. 75 Rossiter (1948), p 313. 76 Agamben (2005), p 87. 77 Agamben (2005), p 2. 78 Agamben (2000), pp 103–8 79 Agamben (2000), p 105 80 Agamben, (2000), p 85. 81 Agamben (2000), p 85. For Schmitt, this is connected to the dissolution of the European

division of global space and the failure of the global order that emerged in the twentieth century to bracket warfare: see Schmitt (2003), p 246. Hardt and Negri make a similar claim that the proliferation of wars across the globe should be seen as a global civil war within a single imperial terrain: Hardt and Negri (2004), pp 3–8.


The second sense in which Agamben deploys the idea of ‘global civil war’ pertains not to the exercise of state violence, but to contemporary forms of social regulation: state power is, he argues, now principally founded on the ‘control of appearance’, and as a result social life has become the site of a ‘global civil war’ whose ‘storm troopers are the media, whose victims are all the peoples of the Earth’.82 In this sense, ‘civil war’ does not refer to a military conflict being waged between two parties vying for control of the state, but to contemporary forms of biopolitical regulation that seek to control the forms of life within the state through the manipulation of ‘public opinion’. While this description of contemporary social regulation as a civil war is rather metaphorical, what is at stake in it is the attempt to mobilise, for radical political ends, the language of threat and war that so dominates contemporary political discourse.

Agamben argues that ‘the voluntary creation of a permanent emergency … has become an essential practice of contemporary states, including the so-called democratic ones’.83 Here, the state of exception operates as a ‘technique of government’ in that the production and manipulation of a sense of emergency is used as a tool of socio-political regulation. The generalisation of actual combat through the development of the ‘sovereign police’ plays a crucial role in the normalisation of the state of emergency as a technique of government. War plays an extraordinarily useful political role, as it helps to rally support for the state and to quell opposition, and can aid in justifying policies and legal measures that would not be acceptable without the sense of an immediate and pressing danger.84 Invoking the language of warfare for political problems that fall far short of actual warfare can also help to produce many of the same political effects as the threat posed by combat, allowing for the ‘total mobilisation of social forces for a united purpose that is typical of warfare’.85 Indeed, since the period of total war, there has indeed been a continued and extensive militarisation of political discourse, from the Cold War through to other so-called ‘wars’ (on poverty, drugs, terror and so on), and the language of existential threat and emergency is such extraordinarily common political currency that it is deployed to frame all kinds of social and economic problems, from football hooliganism to famine, flood and child abuse.86

Agamben’s description of contemporary social regulation as a form of ‘civil war’ is an attempt to reappropriate this kind of political language. The media spectacle of war (and war-like states of emergency) presents the existence of a threat that authorises state action to protect the population. For 82 Agamben (2000), p 94. 83 Agamben (2005), p 2. 84 Naomi Klein’s The Shock Doctrine provides an extensive journalistic account of the

central role that the exploitation, and indeed creation, of crises has played in the imposition of radically unpopular neo-liberal economic policies by states and international bodies such as the IMF and World Bank: see Klein (2009).

85 Hardt and Negri (2004), p 13. 86 Neocleous (2008), p 68.


Agamben, however, the major threat that we face is the political and economic status quo: the contemporary ‘spectacular-democratic’ form of world organisation ‘actually runs the risk of being the worst tyranny that ever materialized in the history of humanity, against which resistance and dissent will be practically more and more difficult – and all the more so in that it that is increasingly clear that such an organisation will have the task of managing the survival of humanity in an uninhabitable world’.87 The decisive conflict of our time is thus not that between states or ideologies, or between state terrorism and the terrorism of non-state actors; rather, it is the conflict between the forces preserving the political and economic status quo (the state, ‘mercantile economy’88 and media) and a global populace whose common interest in an inhabitable world is being profoundly endangered. This rather lopsided ‘civil war’ is being waged by those forces interested in the preservation of the current order through modes of biopolitical regulation that perpetuate prevailing forms of life and close down the possibility of the alternatives emerging.

What, then, are the legal transformations that accompany the development of the state of exception as a ‘technique of government’? Rossiter identifies three key juridico-political transformations that occurred during the period of total war: ‘the concentration of power in the executive, the government invasion of the field of free enterprise, and the increasing encroachment of the state upon the liberties of its citizens’.89 Each of these, Rossiter argues, is ‘clearly repugnant to the western democratic tradition’ and the maintains they have gained much of their impetus ‘from the repeated emergencies of the past thirty years’.90 It is the deprivation of individual liberties that has played the largest role in contemporary debates around security politics, with a particular focus on the suspension of civil and political rights and the use of state violence to respond to ostensible ‘threats to security’ such as political militants and asylum seekers. This is also central to Agamben’s analysis of the exception, evident in his infamous claim that an individual captured in the state of exception is reduced to ‘bare life’ and exposed to arbitrary state violence;91 his assertion that the inmates of Camp X-Ray in Guantanamo Bay are an example of this bare life;92 and his argument that the regular use of the exception corrodes democracy.93 In this sense, the ‘state of exception’ currently operates as a ‘technique of government’ in that it is regularly deployed by contemporary democratic states in order to eliminate what it conceives of as threats to the status quo.

87 Agamben (2000), p 86. 88 Agamben (1993), p 80. 89 Rossiter (1948), p 296. 90 Rossiter (1948), p 296. 91 See Agamben (1998), in particular pp 81–6. 92 Agamben (2005), p 4. 93 Agamben (2001), para 5.


Both the permanent state of emergency and the regular suspension of civil and political liberties closely mirror Schmitt’s analysis of the suspension of the law as a response to an ‘extreme emergency that threatens the existence of the state’.94 However, Agamben emphasises that the normalisation of the exception involves a decisive transformation in the relationship between the exception and the ‘normal’ order. For Schmitt, the state of exception is meant to be an occasional response to a situation of existential crisis. Agamben points out that the sense of emergency and the curtailment of liberties are now both integrated into the continuum of governmental apparatuses deployed for the management of populations. The use of the state of exception is no longer guided by the attempt to eliminate the emergency and restore law and order, but rather the governmental purpose of guiding the development of a problem and ‘securing’ its consequences.95 As a result, Agamben contends, contemporary security politics ‘secretly works towards the production of emergencies’.96

There is, however, a very different sense in which the juridical practices of the state of exception coincide with and have been integrated into practices of government. A number of the measures that State of Exception lists as being indicative of the normalisation of the state of exception (such as delegation of legislative power and law-making by administrative decree) are practices associated not with the politics of emergency or the deprivation of civil and political rights, but the rise of the regulatory or administrative role of the state. The transformation of the state poses a challenge for two other essential components of the rule of law in classical liberalism: the sanctity of property and contractual rights (as classical liberalism is ‘in principle’ against state intervention in society and economy);97 and the idea of the rule of law as the rule of ‘impersonal, that is, general and pre-established, norms that are meant to be lasting and have a definable, determinable content’.98 While both of these classical liberal ideals were never realised, are politically problematic and have been subject to thorough critique,99 it is nonetheless generally recognised by legal thinkers of both left

94 Schmitt (1985), p 12. 95 Agamben (2001), para 2. 96 Agamben (2001), para 2. 97 Neumann (1957), p. 41. 98 Schmitt (2004), pp 3–4. 99 For example, Foucault argues ‘free trade’ could not operate without a host of political and

economic prerequisites, such as sufficient buyers and sellers, a lack of monopolies and enough ‘competent, qualified and politically disarmed workers’. While the laissez-faire philosophy of classical liberalism was undergirded by a philosophical naturalism, in which man’s ‘tendency to truck and barter’ would flourish if simply left alone, in practice, ‘free trade’ could not operate without forms of state intervention to support the operation of the market: ‘we have then the conditions for the creation of a formidable body of legislation and an incredible range of governmental interventions to guarantee production of the freedom needed in order to govern’: Foucault (2008), p 64. Franz Neumann points to the limitations of the idea of the rule of general laws in practice, arguing that as the


and right that the period 1914–45 saw a shift in the juridical practices of liberal democratic states,100 as economic planning, market regulation and the provision of welfare gave the state a more direct and explicit economic and social role.

There are two major points of contact between the state of exception and the development of governmental practices in the administrative state. The first of these is historical, as the origins of these measures lie in the period of total war. Economic planning during both world wars was justified by the threat of the enemy, and many of the market interventions of the interwar years were a response to the profound economic crises of the Great Depression and the political crisis to which this gave rise. Agamben repeatedly emphasises the link between these economic measures and the juridical practices of the state of exception: the Weimar German state responded to the Great Depression through decrees under Article 48, while the New Deal ‘was realized by delegating to the President an unlimited power to regulate and control every aspect of the economic life of the country’.101 In the meantime, administration has become an essential characteristic of the contemporary state and its law-making, and has been severed from the justification of such measures in a response to emergency.

The second point of articulation between the exception and administration, and the one that continues today, is structural. The classical liberal ideal of the rule of law emphasises order, regularity and certainty, as opposed to the arbitrariness of royal rule. The generality of the law ostensibly eliminates discretion by ensuring that like cases are treated alike; combined with the stability of law, this provides certainty in the exercise of state power and guarantees a ‘minimum of personal and political liberty’.102 It is not only the form of law that is rational, but the process that produces them: the rule of law was meant to be the rule of parliamentary norms, which are the result not of executive whim, but the rational deliberation of parliament as the ‘embodiment of universal Reason’ and ‘the general will and the universality of the people-nation’.103

supposedly natural ‘harmony and equilibrium’ of society and economy were in fact political products, administrative measures were always a necessary means of governing when the rule of general rules failed: Neumann (1957), p 41.

100 Indeed, even Marx – who emphasises the decisive role that state violence played in the emergence and consolidation of capitalism in the form of ‘primitive accumulation’ – argues that once capitalism becomes entrenched as an mode of production, the system largely reproduces itself through the ‘silent compulsion’ of economic relations, and that ‘extra-economic force is used only in ‘exceptional’ cases: Marx (1990), p 899. Within the Marxist tradition, the shift to the administrative state is generally linked to the transition from competitive to monopoly capitalism: see Poulantzas (2000), pp 217–31; Neumann (1957), pp 47–59.

101 Agamben (2005), p 22. 102 Neumann (1957), p 42. 103 Poulantzas (2000), p 218.


However, the economic role of the regulatory state transformed the nature of the state’s legal order, resulting in a vast expansion in the amount of legislation, the production of more specific and detailed juridical rules and the constant revision of the legislative code to cope with technological and social change. This correlates with a shift in the centre of power from parliament to the executive and bureaucracy, which became the engine for the formulation of law, and took on the power to create legally binding rules through means such as delegated legislation.104 It also results in a shift in the form of law that characterises liberal democracies: the economic role of the state is not modelled on a stable set of general rules but, as Nicos Poulantzas writes, ‘on specific acts of regulation, corresponding to clearly-defined conjunctions, situations, and interests. The multiplicity of socio-economic problems tackled by the State also requires more and more elaborate concretization of these general norms’.105

The specificity of acts of regulation in the administrative state conjoins the problematic of government with that of the state of exception. In Schmitt’s analysis, the ‘exception’ is singular because it is a situation that threatens the existence of the state, and that cannot be dealt with by the normal rules of law. As such, the state suspends the application of juridical norms and responds to the demands of the particular situation through ‘decrees, provisions and measures that are not formally laws’.106 The administrative attention to the singular is, however, something that has characterised the idea of oikonomia since its Greek origins: as Agamben points out, for Aristotle, household management is ‘a matter of an activity not bound to a system of rules’, which ‘implies decisions and orders that cope with problems that are each time specific’.107 Within the paradigm of government, then, each case is exceptional in that it must be dealt with in a way that responds to the singularity of the situation. This explains the fact that the term oikonomia came, in the canon law of the Byzantine Church in the sixth and seventh centuries, to take on the meaning of an exception to the law, a dispensation that relieved one of the consequences of a strict application of the law: ‘the paradigm of government and the state of exception coincide in the idea of an oikonomia, an administrative praxis that governs the nature of things, adapting at each turn, in its salvific intent, to the nature of the concrete situation against which it has to measure itself’.108

As we have seen through Foucault, liberal modernity sees a massive expansion of government with the development of apparatuses of security, which aim to grasp things at the level of their ‘effective reality’, meaning in the specificity of their nature, their concrete relations with other things and their possibilities of action. The development of and eventual dominance of 104 Poulantzas (2000), p 218. 105 Poulantzas (2000), p 218. See also Neumann (1957), p 52 on the relationship between

monopoly capitalism and legislation that addresses particular situations. 106 Agamben, (2005), p 38. 107 Agamben (2011), pp 17–18. 108 Agamben (2011), p 50.


apparatuses of security as a mode of social regulation in modernity leads to a transformation of the legal system as the law is subordinated to government and comes to be deployed as a tactic in the administration of things. The emergence of the regulatory state, then, is a decisive development in this process, as the law is transformed by its explicit and direct use as a tactic in the administration of things. The legal structures of the regulatory state are ‘exceptional’ not simply because they first emerged in the context of political and economic crisis, but because they have been thoroughly ‘governmentalised’: a form of law based not upon generality, order and identity, but upon the singularity, specificity and differences that exist in particular conjunctures.109

Agamben on Liberalism, Security and the Government of Disorder The issue of why the regulatory transformation of law occurred is hotly contested. Thinkers of the right are often deeply critical of the mass democracy and welfare state that emerged out of World War I for undermining the distinction between state and civil society. Schmitt, for example, argued that this had weakened the Weimar state and made it vulnerable to political crisis, justifying an argument for a fascist state,110 while Friedrich Hayek argued that the social state undermined individual freedom, expanded the scope of state power and ultimately contributed to the development of totalitarianism.111 Marxist theorists, by contrast, tend to argue that the driving factor of this transformation of the relationship between state and society was the transition from competitive to monopoly capitalism. For example, focusing on the rise of particularist regulation in the Weimar period, Franz Neumann argues that general law presupposes economic equality between contracting parties. The development of monopoly capitalism undermines this equality, as the existence of a monopoly confronts the state ‘with an individual situation’ that is ‘pointless to regulate’ through a general law.112

The stakes of these debates are high, as different accounts of the emergence of administration lead to very different political responses. Agamben’s focus on the effects of the period of total war on the juridical structure of the classical liberal state, and the lack of an economic analysis that would contextualise this, brings the explicit text of his work close to that of the liberal and reactionary right. However, Agamben’s most explicit treatment of the relationship between government and the exception in the 109 Hardt and Negri make a similar point about globalised liberalism, when they argue that

the order of globalised liberalism is not reproducing the juridical structures of rule characteristic of the modern democratic nation-state, but is, instead, seeing the emergence of structures of ‘global governance’ that ‘have the flexibility and fluidity to constantly adapt to changing circumstances. They do not need stability and regularity to rule, but instead are designed to manage crises and rule over exceptional circumstances.’ Hardt and Negri (2009), p 372.

110 Schmitt (1932) 111 Hayek (1944) 112 Neumann 1957, p. 52.


contemporary political situation appears in his 2001 lecture, ‘Security and Terror’; while the lecture opens by noting that the centrality of security to the modern state goes back to Hobbes,113 it argues that contemporary practices of exceptionalism are not a regression to an authoritarian past, but rather a new and extreme phase of security politics produced by liberal democratic modernity. Foucault’s work shows that ‘since measures of security can only function within a context of freedom of traffic, trade, and individual initiative … the development of security coincides with the development of liberal ideology’.114 ‘Security and Terror’ thus makes it clear that Agamben believes that the processes undermining liberal constitutionalism are themselves a product of the liberal tradition. As such, we conclude by turning to this lecture in order to examine how Agamben frames the legally ‘illiberal’ nature of contemporary liberalism.

‘Security and Terror’ argues that the governmental logic of security has come to dominate contemporary politics, and this corresponds to a proliferation of state violence and a radical corrosion of the juridico-political functions of the liberal democratic nation-state. There are two specific threats to the order of the liberal democratic nation-state that ‘Security and Terror’ highlights in this regard. As in State of Exception, Agamben asserts a link between government, the exception and the crisis of liberal democracy: measures of security ‘require constant reference to a state of exception’ and as such that ‘in the long run, they are irreconcilable with democracy’.115 However, ‘Security and Terror’ also links the collapse of the classical form of warfare to a rise in state lawlessness and to practices of government. As Agamben argues in Means Without Ends, the end of modern warfare and the rise of the sovereign police mean that belligerent countries can operate outside the laws that once regulated the exercise of violence in war.116 In ‘Security and Terror’, however, Agamben links this phenomenon to the development of security: ‘measures of security lead to an opening and to globalization’,117 and the implied end-point of the development of security as the dominant paradigm of global governance is ‘a new planetary order which is in truth the worst of all disorders’.118

As we have seen, Foucault argues that the development of security gives rise to a relative decline in the role of law in governance, and that law increasingly is deployed as a tactic in the administration of things. He contrasts law and security through a host of different problems related their 113 As Paul Patton argues, Hobbes’ focus on the life and safety of individuals is quite distinct

from Foucault’s account of security as ‘the achievement and maintenance of an overall equilibrium or regularity in a population’: Patton (2007), p 277 (n 9). Nonetheless, ‘Security and Terror’ draws these two different conceptions of security together in a quite productive fashion.

114 Agamben (2001), para 1. 115 Agamben (2001), para 5. 116 Agamben (2000), p 106. 117 Agamben (2001), para 2. 118 Agamben (2001), para 5.


respective ends, means and techniques. Historically, law was the political technology used by sovereign authority to obtain its end: to produce respect for an established order. As a mechanism of power, law operates at the level of the imaginary; it involves a normative code that produces a binary division between licit and illicit, which is then backed by sanctions aimed at the juridical subject (often inflicted, until the development of discipline, as a spectacular punishment upon the body). Agamben’s work is likewise characterised by a historical narrative in which the ascendance of security corresponds to a transformation and decline in the function of law. However, he both simplifies and reframes this relationship in terms of an over-arching opposition: law (along with discipline) is devoted to the production of order, while security ‘wants to regulate disorder’.119

While this analysis lacks the specificity and detail that Foucault provides, by focusing on the relationship between law and order, Agamben is able to bring the problem of the state of exception into conjunction with the idea of government. Drawing mainly upon Schmitt rather than Foucault, Agamben characterises the law in terms of the application of general rules to particular situations,120 arguing that these rules cannot function in conditions of chaos or civil war, and hence that the law presupposes the production of a state of exception when the order of law is threatened by an emergency. While Schmitt is renowned for his hostility to liberalism and the rule of law, he advocates the use of the state of exception for the good of the law: the exception is the juridical apparatus that allows for the restoration of law and order when all else fails. Agamben argues, however, that the normalisation of the state of exception undermines the capacity of sovereignty to restore law and order. As a result, we face a politics of permanent disorder.121 This is not, however, ‘chaos’ in the sense of an originary state of nature or civil war that arises from a lack of government, but rather a form of government or rule made possible by apparatuses of security. While the law presupposes and produces order, and the theory of the legal liberalism emphasises the predictability and order that general rules provide, apparatuses of security are flexible measures that respond to the singularity and specificity of concrete situations, seeking to profitably guide the inherently uncertain processes and flows that are constitutive of a milieu.122 In Agamben’s terms, these security apparatuses allow for the ‘administration of the absence of order’,123 meaning that they allow for the rule over or management of the permanent state of exception.

119 Agamben (2001), para 2. 120 Agamben (1998), pp 17–21; Agamben (2005), pp 39–40. 121 Agamben (2005), p 58. 122 Agamben in Raulff (2004), p 611; see also Agamben (2011), p 124. 123 Agamben in Raulff (2004), p 611; see also Agamben (2011), p 124.


Conclusion Agamben argues that the twentieth century saw a radical crisis of the juridical form of the liberal democratic state. This account of contemporary politics has most often been read in terms of the relationship between the rule of law and the sovereign violence of the state, leading to charges that Agamben fetishises law and sovereignty, and that this renders him incapable of adequately explaining the causes of the legal crisis or describing the nature of contemporary security politics. In this article, I have emphasised the fact that the normalisation of the state of exception equates, for Agamben, to its transformation into a ‘technique of government’, and have drawn from and built upon fragments disseminated across his work to develop an account of the biopolitical context underpinning the crisis of the legislative state, and to analyse the nature of the ‘exceptional’ state.

Drawing on Foucault, I showed that techniques of security are a correlate of the problem of government; that they have become the dominant mode in which power operates; and that their dominance corresponds to a transformation in the nature and operation of law. Nonetheless, Foucault argues that security apparatuses first emerged in the eighteenth century and coexisted with both the absolute state and the legally limited state of classical liberalism, raising the question of why the crisis of legality emerges in the period 1914–45. I have argued that the only causal mechanism that appears in Agamben’s work that can explain this phenomenon is the experience of total war, which blurs biopolitical regulation and the sovereign function of waging war (a concern he shares with Foucault) and transforms the nature of the legal order through the development of the administrative or regulatory state and measures that restricted both political and economic liberties (concerns that he derives from Schmitt).

This analysis suggests possibilities for rethinking what is at stake in two of the most discussed problems in debates around the Homo Sacer project: Agamben’s relationship with Foucault, and the application of his thought to the contemporary political conjuncture. Many of the commentators on Agamben and Foucault emphasise radical theoretical differences between them, to the point that a dialogue between the two on biopolitics has been declared ‘impossible’.124 One of the most common criticisms is that, where Foucault’s emphasis on difference and discontinuity allows him to provide nuanced historical accounts of political events and discursive formations, Agamben tends to ‘essentialise’ the political, leading him to an emphasis on historical continuities that makes him incapable of grasping the particularity and contingency of historical events.125 It is certainly true that State of Exception focuses narrowly on the relationship between the state of 124 Ojakangas (2005), p 5. 125 For versions of this argument, see Deranty (2004), paras 8–10; Rose and Rabinow (2006),

pp 200–3; Oksala (2010), p 41. Michael Dillon puts the difference between the two as that between the ‘ontologisation’ and the ‘historicisation’ of the political: see Dillon (2005), p 42. Agamben is also sometimes accused of casting contemporary events as the necessary or destined outcome of the ‘logic of sovereignty’: see Oksala (2010), pp 36, 40.


exception and the rule of law, that its description of the transformation of the legal system lacks detail, and that Agamben often tends to portray the crisis of legality in very general terms, such as the claim that the state of exception ‘has become the rule’ or ‘reached its maximum worldwide extension’. In this article, however, I have taken seriously Agamben’s claim to be working in dialogue with Foucault and, by reading the two thinkers together, I have developed an account of the specific historical transformation that he places at the heart of his account of twentieth century legal history, and teased out the different dimensions of his vision of post-war security politics.

Much of the literature around the relationship between Agamben and Foucault has been critical of Homo Sacer’s emphasis on sovereignty as a theoretical paradigm for understanding contemporary power relations.126 If Agamben has been, as Negri and others charge, obsessed with a suffocating and totalitarian image of sovereign power, then his recent work on the genealogy of government and economy in The Kingdom and the Glory would mark a decisive break with his previous political concerns, and one of the work’s central conclusions – that ‘the central mystery of politics is not sovereignty but government’127 – would represent a major about-face. What my analysis indicates, however, is that the intersection between the Foucauldian problem of government and the Schmittean problem of the exception has played a key role in his thinking about contemporary politics since his 2001 lecture ‘Security and Terror’, and that it forms the matrix of intelligibility for his account of the normalisation of the state of exception. While the problems of government and sovereign violence against a bare life deprived of rights do not exactly coincide, what allows Agamben to bring these two issues together is the philosophical problem of the relationship between the general and the particular: where law is predicated on and produces order, practices of government treat every case as a singular or exceptional event. This analysis also suggests that we need to rethink what is at stake in Agamben’s account of the crisis of legality: not only a politics of state violence and permanent emergency, but also the more quotidian problem of administration and regulation.

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'Giorgio Agamben on Security, Government and the Crisis of Law' 21 (3) Griffith Law Review 2012

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