Thursday, September 18, 2008

Letting Law off the Hook

[I am aware this post is fairly terrible, but I’ve been trying to write it for ages and so I’m just putting it out as is, so that I can move onto more productive things]

I was chatting with China Miéville a few weeks ago and we got talking – for a little bit – about Agamben. China mentioned that when Homo Sacer first came out he was very excited about it but that as time went by he grew dissatisfied by the way that his conception of the ‘state of exception’ seemed to ‘excuse’ law of its complicity in processes of domination. I mention this not in order to name drop but because I don’t want this post to seem like I’m claiming all the credit for what follows.

Anyway, I found this argument interesting and decided to re-read Fleur Johns’ article on the subject ‘Guantanamo Bay and the Annihilation of the Exception’[1], here I want to engage with some of the points made by Johns and make a more general consideration of Agamben’s argument. The heart of the problem identified by critics such as Johns is that in choosing to focus on and characterise certain situations as ‘states of exception’ in which there is no law Agamben misses the way that law is complicit with relationships of extreme exploitation and domination.

Johns takes the example of Guantánamo, which Agamben has characterised as a modern example of the state of exception made permanent. Johns notes that if we examine the regime at Guantánamo what we actually find is an excess of law:

Far from a space of ‘utter lawlessness’ then, one finds in Guantánamo Bay a space filled to the brim with expertise, procedure, scrutiny and analysis. Amid the work of the Military Commissions, the Administrative Review Board, the Combatant Status Review Tribunal and the other inquiries mentioned above, it is not upholding the rule of law that seems tricky. Rather it is the possibility of encountering the yet-to-be governed exception that seems difficult to contemplate.[2]

This point doesn’t just extend to Guantánamo however. The war on terror is often characterised as one giant exception – in which a number of individuals exist in a lawless zone, where anything can be done to them. But this does seem to miss the way in which strenuous efforts have been made to justify these actions legally (torture is a very good example here) and the role that imperial lawyers have played in justifying the actions of (particularly) the United States. Of course, it might be objected that although there are claims of legality these remain just that – simply claims. I think this is a difficult argument to mount. It relies on being able to distinguish between ‘true’ and ‘false’ assertions of legal argument. Furthermore, one of the key characteristics of a state exception seems to be that it is proclaimed as such.

This is not to say that – on some level – doesn’t represent an ‘exception’ to the ‘normal’ functioning of the rules. However, crucially, what seems to have happened is that the rules are relaxed and a new, more permissive set of rules apply in their place (so the constitution is displaced for some other standard in the US case – although following the recent Supreme Court decision this is doubtful). Of course Agamben’s vision of the exception is one in which legal norms are suspended. I want to return to this theme later, as I think it is symptomatic of Agamben’s failure to read Schmitt (and theory in general) juridically.

Johns argues that Agamben’s work reproduces the typical liberal posture taken in relation to Guantánamo. Firstly, it characterises the regime as a ‘vacuum’ (which is taken as per se negative). Next two strategies are pursued which help affirm the ‘nobility’ of the law – one which says the law already covers this situation and one which argues the law has to be recast in the War on Terror.[3] The point is that this liberal position seeks to ‘excuse’ the law by denying its operation in Guantánamo. We should be wary of pursuing this argument in relations to Agamben, because I don’t think he falls foul of it. Agamben characterises the exception as necessary to law, as that which allows it to exist and the only way in which law is able to encompass bare life. This means that whilst he excludes law’s operation from Guantánamo, he doesn’t leave them unconnected, instead he argues that the existence of Guantánamo (and places like it) are a necessary corollary of the existence of the law. This being said, there still seems to be a certain sense in which Agamben’s arguments can be ‘hijacked’ by law’s advocates.

Agamben and Schmitt

At this point it seems wise to enquire how it is that Agamben manages to mischaracterise Guantánamo. I think one of Agamben’s real problems here is his failure to properly grapple with what Schmitt has to say about exceptions and norms. To my mind, one particularly glaring example of this can be found in the following passage:

The camp is the space that is opened when the state of exception begins to become the rule. In the camp, the state of exception, which was essentially a temporary suspension of the rule of law on the basis of a factual state of danger, is now given a permanent spatial arrangement, which as such nevertheless remains outside the normal order.[4]

In Agamben’s narrative it is only with the coming of the Nazi regime that the exception is made – somehow – permanent, before this the exception was simply a ‘temporary suspension of the rule of law on the basis of a factual state of danger’. In a similar vein he argues:

The sovereign no longer limits himself, as he did in the spirit of the Weimar constitution, to deciding on the exception on the basis of recognizing a given factual situation (danger to public safety): laying bare the inner structure of the ban that characterizes his power, he now de facto produces the situation as a consequence of his decision on the exception.[5]

Seemingly then, Agamben argues that the liberal conception of the state of exception – as a suspension of the law made subject to a factual determination – is actually an accurate description until the advent of the Nazi regime (or rather the conditions that surround it). But Schmitt never saw things this way. For Schmitt the liberal conception of the state of the exception was never correct, so for example:

The decision on the exception is a decision in the true sense of the word. Because a general norm, as represented by ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm.[6]

Thus, Schmitt denies that the state of exception was ever simply ‘triggered’ by a factual situation which is merely ‘recognised’ by an authority. So against Agamben Schmitt sees no break in continuity when the sovereign ‘facto produces the situation as a consequence of his decision on the exception’:

[S]overeignty (and thus the state itself) resides in deciding this controversy, that is, in determining definitively what constitutes public order and security, in determining whether they are disturbed and so on.[7]

So right from the get-go we can see that Agamben diverges from Schmitt (and towards liberalism). Of course, it might be argued that this doesn’t really matter, since Agamben is clear that in the present day, Schmitt’s interpretation is correct. But I think that one ought to bear this in mind in the discussion that follows. This is because there is another – more important – sense in which I would argue that Agamben misunderstands Schmitt. This lies in his failure to fully consider the juridical aspects of Schmitt’s work (this is not a mistake unique to Agamben, as I have previously argued, it has marked the general reception of Schmitt).

It’s quite difficult to think how to phrase this (this whole post has been very difficult to phrase), so I think I’ll begin with a somewhat schematic depiction of Agamben’s position. In Agamben’s work there exists a basic dichotomy between the exception (a zone where there is no law) and ‘the rule of law’. In the latter case, what Agamben seems to envisage is a fairly simple liberal picture, where the law – as a body of publically ascertainable rules – is applied to situations in a predictable and determinate way.

But this dichotomy is something that Schmitt is at pains to deny. In her article, Johns proposes a ‘heterodox reading’ of Schmitt in which the ‘decision’ is not simply a feature of the state that decides on the state of exception, but rather is something that is constantly at play whenever a law is invoked in a particular case. Having not read much secondary literature on Schmitt I don’t know if this is a ‘heterodox’ reading, but if it is one, then I think the orthodoxy is plain wrong. The particular reading of Schmitt – whereby every application of a norm is a ‘decision’ which cannot be circumscribed by the norm seems to me to be the most straightforward reading Political Theology. Here, whilst the decision on the state of exception is an important one, its particular character is derived from the general impossibility of circumscribing decisions by norms. Only through this reading can we explain statements like:

[T]he conception of personality and its connection with formal authority arose from a specific juristic interest, namely, an especially clear awareness of what the essence of legal decision entails. Such a decision in the broadest sense belongs to every legal perception. Every legal thought brings a legal idea, which in its purity can never become reality, into another aggregate condition and adds an element that cannot be derived either from the content of the legal idea or from the content of a general positive legal norm that is to be applied. Every concrete juristic decision contains a moment of indifference from the perspective of content, because the juristic deduction is not traceable in the last detail to its premises and because the circumstance that requires a decision remains an independently determining moment.’[8]

Thus, in Schmitt, what we have is a very early version of the indeterminacy thesis – which denies that ‘legal reasons’ are able to explain legal decisions. As a corollary to this, in the ‘application’ of law to any set of facts it is impossible to justify a number of different of results. This is Guantánamo, it is not a suspension of the law, whilst it is an exceptional application of the law it is still an application of the law, rather than its suspension. It is true that Agamben does take some cognisance of Schmitt’s argument on these matters. Thus, he notes (around page 170 or so) that in State, Movement People, Schmitt invokes the increasing use of indeterminate standards (the reasonable man etc.) as an argument for indeterminacy of law. But this misses the radical nature of Schmitt’s critique, which denies any possibility of liberal nomativism. It is also true that Agamben does seem to argue that the Nazi regime has inaugurated a period in which the state of exception is able to spill out into society itself. But again, this doesn’t seem to engage with Schmitt’s argument that there was never a period in which liberal normativism actually operated. Furthermore, in arguing that indeterminacy is rooted in the ‘spread’ of the state of exception (and thus a zone of ‘indistinction between law and fact) Agamben fails to understand that indeterminacy is rooted in the law itself.

What does this mean?

Of course it could be argued that in actuality what I am doing is simply pedantic nitpicking. But I think it would be a mistake to characterise as such. If, as I have argued, Agamben has mischaracterised Guantánamo Bay and – more to the point – this mischaracterisation extends to his analysis of the state of exception more generally, then definite theoretical and political consequences flow from this (no matter that he acknowledges the general ‘blurring’ of fact and law).

Firstly, as Johns notes, in choosing to focus on the state of the exception, as opposed to law-governed situations Agamben emphasises spectacular violence as opposed to concrete violence:

By assuming the affect of exceptionalism, the normative order of Guantánamo Bay has soaked up critical energies with considerable effectiveness, for it is the exception that rings liberal alarm bells. Accordingly, the focus falls on less than 600 persons being abused in Cuba, rather than upon the millions subjected to endemic sexual, physical and substance abuse in prisons across the democratic world. In a similar way, attention is captured by the violation of rights of asylum-seekers, rather than by the over-representation of immigrants in the most informal and vulnerable sectors of the contemporary economy.[9]

This point can clearly be deepened. In insisting of the ‘exceptional’ character of Guantánamo (and other states of exception) Agamben does not view it as on a continuum with ‘law-governed’ situations but rather sees it as a break. In this way it is difficult for Agamben to see the continuities between Guantánamo and a whole host of other situations. Linked to this is the fact that a nice rhetorical move can easily be made here. In denying that places like Guantánamo are governed by law, we seem to implicitly be saying ‘if this were governed by law things would be all right’ – but is this really the case? In a nutshell, it is quite worrying that focusing on the ‘state of exception can quickly slide into ‘justificatory exceptionalism’. Indeed, in this way Agamben seems to reproduce the basic assumptions of liberal legalism. As I have previously argued, the law has great difficulty in dealing with structural or systemic violence. In choosing to focus on the ‘exceptional’ breach of the law Agamben seems to reproduce this problem.

Linked to this point is the fact that Agamben’s position seems to give the law a certain dignity that (I would argue) it doesn’t deserve. As I have previously noted, lawyers have been very important on the war on terror. One need only think of the torture memos and the general hue and cry over Ashcroft to see this. Bearing this in mind, does it really make sense to simply ignore these invocations of legality? Here, Agamben seems to reproduce the liberal lawyer’s ‘anxiety of influence’. Here, when legal argument is used to justify that which is illiberal or uncongenial to their politics liberals typically argue that it is a ‘bad faith’ deployment of law, or not law at all. As Susan Marks notes:

When we treat a phenomenon like Guantánamo Bay as an instance of lawlessness or, in the widely circulating phrase, a ‘legal black hole’, we make it seem like a legal mystery. Well, Guantánamo Bay is certainly a place in which people have few rights, but it is no legal vacuum or mystery. Its basis in legal stipulations (constitutional law, special regulations, extradition arrangements) is, or should be, plain for all to see. Conversely, when we treat international law as a redemptive force that could save the world if only it were properly respected and enforced, we obscure the possibility that international legal norms may themselves have contributed to creating or sustaining the ills from which we are now to be saved. We also mischaracterize the processes of emancipatory change as redemption or deliverance. And we weaken our capacity to criticize international law, and make it more useful to those by whom liberatory processes are actually carried forward.[10]

I'm quite tempted to say that many of these problems come from Agamben not taking law seriously enough. Throughout the entire book no attempt is made to say what exactly Agamben means by 'the law'. This becomes very problematic, becuase in his vision the state of exception is the absence of law. I get the feeling that (as above) Agamben is falling back on a kind of generic/vulgar positivism, whereby the law is the public edict of the state. But taking this position means he fails to make the connection between law in general and 'the decision'. This in turn seems to leave him unable to see how we might come to a decisionistic conception of law. This failure means he has little choice but to characterise Guantanamo as a state of exception, because it is clearly far away from the vulgar positivist vision.

However, rather unfortunately, 'law-governed' situations themselves are hardly captured by this vision (it is no accident that historically positivism was always articulated within a normative political project - they weren't just 'describing' law but aiming to reform it, hence positivists were always hostile to judicial interpretation and sought to 'eliminate' it both theoretically and practically, but shorn from this political purpose such a vision makes little sense, hence Schmitt's critique), which makes Agamben's claims as to Guantanamo constituting a permanent spatial exception looking pretty, well, wrong. With a theory of the legal form in place, Agamben might not have made this move.

Ok, I just need to end this horrible post.

[1] (2005) 16 European Journal of International Law 613-645

[2] Ibid . at p.619

[3] Ibid., p.622

[4] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, (1998) Stanford University Press p.169

[5] Ibid., p. 170

[6] Carl Schmitt, Political Theology, p.6

[7] Ibid., p.9

[8] Ibid., p.30

[9] Johns, op cit, p.629

[10] Susan Marks, ‘State-Centrism, International Law, and the Anxieties of Influence’, (2006) 19 Leiden Journal of International Law

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