Agamben, Hobbes and Liberalism: some incoherent thoughts

Wow. You turn around and suddenly two months have gone by. I have been a little bit busy, I got, and then lost, a job (damn you economic crisis!), have a few academic projects up in the air and have read a few books. Also, to be honest, I haven’t been that inspired to blog anything, indeed I am posting this because my cat woke me up this morning, I couldn’t get back to sleep and this thought popped into my head. Anyway, what I was thinking about was Homo Sacer.

Agamben and Hobbes

One of the really interesting bits of Homo Sacer for me was Agamben’s reading of Hobbes, as I’ve mentioned before I think Hobbes is a really interesting and really important figure, so it’s always good to see him get a mention. Anyway, Agamben argues that the state of nature is ‘not so much a war of all against all as, more precisely, a condition in which everyone is bare life and a homo sacer’ (1998: 106). As such, Hobbes argues that the institution of sovereign power arises when people lay down their right to resistance and it is left for the sovereign. Thus, for Agamben sovereign power (in Hobbes) is not founded on contract but on the inclusive exclusion of bare life which is realised through the ban. According to Agamben:

The understanding of the Hobbesian mythologeme in terms of contract instead of ban condemned democracy to impotence every time it had to confront the problem of sovereign power and has also rendered modern democracy constitutionally incapable of truly thinking a politics freed from the form of the state.

(1998: 109)

I think Agamben’s reading of Hobbes has much to recommend to it, however, I don’t think that he can lay claim to an authoritative reading of Hobbes. In fact, I don’t think we can definitively say whether Hobbes focuses on the ban or the contract because I think he is ambivalent on this question. There are several ambiguities in Hobbes which centre around these questions. Thus, on the constitution of a sovereign Hobbes says:

The only way to erect such a common power ... is, to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will.

(1998: 114)

But this can only be done when the great multitude ‘by mutual covenants one with another, have made themselves everyone the author’ (Hobbes 1998: 114). Immediately, there is an ambivalence as to what precisely has constituted the sovereign. Either, we all start with a right to do something in the state of nature and we all agree to lay down this right vis-à-vis the sovereign, whilst the sovereign retains it or we have all authorised the sovereign and he bares our person. Nigel Simmonds has pointed out that here the two traditions of jurisprudence (natural law and positivism) vie with each other. For if the former conception is correct, then the sovereign’s authority (and as such law’s bindingess) is a right of pure coercion, since only he retains the right to use it. Yet in the latter conception we have a duty to obey, since the commands of the sovereign are our commands. Here, one can see the tension between the ‘ban’ and the ‘contract’. Indeed, in a single paragraph Hobbes effaces transferring and renouncing a right:

And lastly the motive, and end for which this renouncing, and transferring of right is introduced, is nothing else but the security of a man’s person, in his life, and in the means of so [88] preserving life, as not to be weary of it. And therefore if a man by words, or other signs, seem to despoil himself of the end, for which those signs were intended; he is not to be understood as if he meant it, or that it was his will; but that he was ignorant of how such words and actions were to be interpreted.

The above tension becomes especially apparent in Hobbes’ discussions of a ‘right’ as against the sovereign and the ‘duty’ to obey. Despite, his partial argument that the sovereign springs from covenant Hobbes has quite a few strategies for avoiding the implications of this argument. His first – and for our purposes least interesting – strategy is to argue that the citizens have covenanted with each other and not with the sovereign, which hadn’t existed at that point, as such the sovereign cannot breach he covenant. His second, more interesting, strategy is to argue:

Besides, if any one, or more of them, pretend a breach of the covenant made by the sovereign at his institution; and others, or one other of his subjects, or himself alone, pretend there was no such breach, there is in this case, no judge to decide the controversy it returns therefore to the sword again; and every man recovereth the right of protecting himself by his own strength, contrary to the design they had in the institution.

(1998: 116)

This relates back to Hobbes’ idea that covenants are only binding when there is a public power to enforce them. But of course, this begs the question, where does the bindingness of the original covenant come in? These strategies, whilst designed to minimise the impact of contractual reasoning, nonetheless remain rooted in the idea that the sovereign springs from covenant. Hobbes also deploys other strategies, which seem more rooted in the ‘ban’:

To resist the sword of the commonwealth, in defence of another man, guilty, or innocent, no man hath liberty; because such liberty, takes away from the sovereign, the means of protecting us; and is therefore destructive of the very essence of government.

(1998: 145)

These strategies are very closely related to the ambit of sovereign power and the ‘right to resistance’. Hobbes’ deals with this in an infamous manner, arguing:

[B]ecause every subject is by this institution author of all the actions, and judgments of the sovereign instituted; it follows that whatsoever he doth, it can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice. For he that doth anything by authority from another doth therein no injury to him by whose authority he acteth: but by this institution of a commonwealth, every particular man is author of all the sovereign doth: and consequently he that complaineth of injury from his sovereign, complaineth of that whereof he himself is author...

(1998: 117)

(Again, the strategy outlined at p.145 is complementary to this). Yet Hobbes also realises he has to qualify this by arguing that a man always has the right to defend his own life and the conditions of his life. I don’t think that these ambiguities in Hobbes can simply be read off as inconsistencies or as varying attempts at justification for his overall project (as I imagine Agamben has to). Instead, I think this tension in Hobbes work – between contract and ban – actually tells us something quite interesting about liberalism. Now, there are lots of liberals who don’t think Hobbes is part of their canon. I don’t want to dwell too much on this although MacPherson, Arendt and Strauss do an excellent job of placing Hobbes within the bourgeois liberal tradition. I think at the very least Hobbes has to be acknowledged as pre-figuring the liberal tradition and his individualistic, rational ‘citizens’ are the bedrock of subsequent liberal justifications for the state.

A Little Locke

Indeed, in the case of Locke, what we see is very similar problems to those with Hobbes, but with only the weakest solution to them. Nowhere is this more evident than in his attempt to reason out how it is we can consent to government if we were not part of the original compact to it:

But since the government has a direct jurisdiction only over the land, and reaches the possessor of it, (before he has actually incorporated himself in the society) only as he dwells upon, and enjoys that; the obligation any one is under, by virtue of such enjoyment, to submit to the government, begins and ends with the enjoyment; so that whenever the owner, who has given nothing but such a tacit consent to the government, will, by donation, sale, or otherwise, quit the said possession, he is at liberty to go and incorporate himself into any other common-wealth; or to agree with others to begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed...

(Locke 1689: § 121)

Here, Locke comes right up against the tension in Hobbes. Indeed, from the perspective of the person who wants no part in the ‘social contract’ the government looks to be made of ‘pure coercion’ and the fact that ‘he is at liberty to go and incorporate himself into any other common-wealth; or to agree with others to begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed’ is unconvincing. Similarly, when the government breaches its social contract ‘they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty’ (Locke 1689: §222). The practical result of this – of course – is no different to that which Hobbes outlines, we revert to a situation of the sword against the sword, a situation in which ‘right’ no longer seems particularly important.

Liberalism

In searching out what Hobbes ‘really’ means and moving decisively in favour of the ‘ban’ I think Agamben misses the fact that this ambivalence is a structuring tension in liberalism. This can be seen in the fact that – right from the get go – the central problematic of liberal political theory is working out how to justify the deployment of coercion in terms of freedom and equality. However, this doesn’t just operate at the level of theory; it is – for example – particularly evident in the discourse on terrorism and security. The way that the argument typically rolls around is something like this – we need to protect our liberties and some people are threatening our liberties – so what we need is security, thus as Marx notes (in a very prescient piece of analysis):

Security is the supreme social concept of civil society; the concept of the police. The whole society exists only in order to guarantee for each its members the preservation of his person, his rights and his property. It is in this sense that Hegel calls civil society “the state of need and of reason...The concept of security is not enough to raise civil society above its egoism. Security is, rather, the assurance of its egoism.

(1978: 43)

However, it soon becomes apparent that the very rights we seek to protect are in fact protecting those who would take them away from us. So here, we have to breach, or abrogate those rights, so as to protect them. This, as Marx says, results in a rather odd position:

This amounts to saying: the right to liberty ceases to be a right as soon as it comes into conflict with political life, whereas in theory political life is no more than the guarantee of the rights of man – the rights of the individual man – and should, therefore, be suspended as soon as it comes into contradiction with its end, these rights of man.

(1978: 44)

But what Marx missed was the way that this concrete manifestation of a general tension is resolved in a particularist manner. Because in practice ‘these rights of man’ are not often wholly suspended (although there are of course exceptions to this), the rhetoric of depriving rights to protect rights is always directed at particular groups. This is true both nationally and internationally. So nationally, what you see is certain groups – communists, Muslims etc. – branded as a threat to ‘our liberties’. As such it becomes justified to deprive these groups of some of these liberties and – in the case of those against whom there is greater ‘evidence’ – many of their liberties. It is also true internationally, with certain states labelled as rogue states etc. on the basis of their persistent rights violations against whom – at least in some quarters – seemingly non-liberal actions become acceptable.

This contradiction leads to the most wonderful rhetorical contortions and faux rage (witness the response of Decents to Amnesty International reports and their attempts to wriggle out of Guantanamo etc.). Liberal states – by virtue of the fact that they are protecting rights – are justified in violating those very rights that claim to protect by the fact that others are violating those same rights rights. But again, this general claim has a particularist resolution, it is no accident that this reasoning is co-extensive with imperialism. Indeed, the recent Georgia-Russia scuffle is revealing in this regard, Russia adopting this rhetoric was roundly condemned but note that much of the condemnations was not that Georgia had not violated rights, rather the claim was that Russia had violated Georgia’s territorial integrity – Russia was not even considered as having the capacity to exercise the right of ‘humanitarian intervention’.

Law

In touching on liberalism I have, of necessity, touched on law. Law is usually absolutely central to liberalism and as such is the immediate repository of its contradictions. Indeed, the initial contradiction – contract or ban – is deployed precisely to justify the coercion that is embodied in the law. Law is also immediately active in the question of rights (as it is what embodies them) and security (as it is what ‘creates’ it). As Pashukanis argued, law is also – in terms of its form, immediately subject to this tension:

Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals “to be disassociated, yet integrated in society”

(1980: 70)

The form of law – recognising abstract, formal equality – is certainly (to some degree) a form of ‘freedom’, but this is always counterposed to the violent coercion that is part and parcel of the law.

Structure

I think these brief considerations of the law point to the material source Hobbes equivocation between the ‘ban’ and the ‘contract’ (and liberalism’s subsequent ambiguity) – namely capitalist property relations. Capitalist property relations combine freedom with subordination, on the one hand everyone in capitalist society is considered a potential property and as such, all are represented as equal to each other. On the other hand, the substantive relations that these individuals enter into – particularly the employment relation – are relations of subordination and domination. Furthermore, although individuals can choose their employer they cannot survive without working. Whilst individuals are formally able to become capitalists in practice this is very difficult and for a capitalist class to exist there must always be a working class. Thus, capitalist property relations are composed of both the ban and the contract in an unstable mix; liberalism, which is the purest ideological expression of capitalism mirrors this structure, as does capitalist society at large.

In neglecting the ambivalence of Hobbes’ work Agamben therefore tends to obscure the very real problems with which Hobbes in grappling.

(Sorry this was so quote heavy, the old synapses have been firing so hopefully some more stuff soon – and definitely my impressions on this Glasgow thing I’m going to in December; also, I was very tired when I wrote this)

References

Agamben, Giorgio (1998) Homo Sacer: Sovereign Power and Bare Life, Stanford University Press

Hobbes, Thomas (1998) [1651] Leviathan, Oxford World Classics

Locke, John (1689) Two Treatises on Civil Government

Marx, Karl (1978) [1843] “On the Jewish Question,” in R. Tucker ed., The Marx-Engels Reader. New York: W.W. Norton & Company

Pashukanis, Evgeny (1980) [1924] “General Theory of Law and Marxism,” in P. Beirne and R. Sharlet eds., Pashukanis: Selected Writings on Marxism and Law, London: Academic Press

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

(Really) Agamben and Pashukanis

Agamben (emphasis mine):

The law has a regulative character and is a "rule" not because it commands and proscribes, but because it must first of all create the sphere of its own reference in real life and make that reference regular. Since the rule both stabilizes and presupposes the conditions of this reference, the originary structure of the rule is always of this kind: "If (a real case in point…), then (juridical consequence…)," in which a fact is included in the juridical order through its exclusion, and transgression seems to precede and determine the lawful case. That the law initially has the form of a lex talionis …means that the juridical order does not originally present itself simply as sanctioning a transgressive fact but instead constitutes itself through the repetition of the same act without any sanction, that is, as an exceptional case. This is not a punishment of this first act, but rather represents its inclusion in the juridical order, violence as a primordial juridical fact…In this sense, the exception is the originary form of law.

The cipher of this capture of life in law is not sanction (which is not at all an exclusive characteristic of the juridical rule) but guilt (not in the technical sense that this concept has in penal law but in the originary sense that indicates a being-in-debt: in culpa esse), which is to say, precisely the condition of being included through an exclusion, of being in relation to something from which one is excluded or which one cannot fully assume. Guilt refers not to transgression, that is, to the determination of the licit and the illicit, but to the pure force of the law, to the law's simple reference to something.[1]

Pashukanis:

Russkaya Pravda‑that most ancient historical monument of the Kievan period of our history‑consists of 43 articles (the so‑called academic register). Only two articles do not relate to violations of criminal or civil law. The remaining articles either determine a sanction, or else contain the procedural rules applicable when a law has been violated. Accordingly, deviation from a norm always constitutes their premise. The same picture is presented by the so‑called barbarian laws of German tribes. For example, in the Salic Law only 65 of 408 articles do not have a punitive nature. The oldest monument of Roman law‑the laws of the Twelve Tables‑begins with rules defining the procedure for initiating litigation: "Si in ius vocat, ni it, antestamino. Igitur im capito". (If a man is called to court and he does not go, this should be attested, and he should be taken there) …

Non‑observance of a norm, or violation of it, the disruption of normal intercourse and ensuing conflict: this is the starting point of the most important content of ancient legislation. Conversely, what is normal is not fixed in the beginning as such‑it merely exists. The requirement that the scope and content of mutual rights and obligations be fixed and exactly established, appears when calm and peaceful existence is violated. From this perspective Bentham is right when he asserts that a statute creates rights as it creates crimes. Historically, the legal relationship assumes its specific character pre‑eminently in the facts of violations of law. The concept of theft was defined earlier than the concept of private property. The relationships attending a loan were fixed when the borrower did not want to repay it: "if one tries to recover a debt and the debtor refuses etc." (Russkaya Pravda, Academic Register, Art. 14). The original significance of the word pactum was not that of contract, but pax, peace, i.e. an amicable conclusion to hostility, "peaceful" (Vertrag) supposes the end of "unpeaceful" (Unvertraglichkeit).[2]

Which links nicely back to the introduction to this blog I wrote over three years ago(!):

[I]n a real sense law only exists with disorder, the normal conduct is only rendered "normal" by the deviation itself. Historically, then, law can only be seen as arising as a material solution to “disorder”, and to act as a corrective. But the continued existence of a law can surely only mean one thing, disorder still exists. Therefore the corollary of the law is not “order” because once one has “order” there is no need for law, law is dialectically generated by the continued presence of disorder. Therefore the fact that law does not extinguish itself also raises many questions as to its efficacy as a method of social regulation.

What does all this tell us? Firstly, one wonders why the sole reference I can find in anything Agamben writes to Pashukanis is in State of Exception, where he simply notes the opposition between Vyshinsky and Pashukanis on the question of the withering away on the law. If anyone else can find a reference I would be gratified to see it. Secondly, what I quite like about Agamben is that he actually deals with ‘law’ as a named relation. A lot of people seem to deal with Schmitt as primarily a political theorist. Having read the Schmitt I’ve read I always find this a bit hard to swallow, whilst Schmitt is obviously speaking to politics broadly conceived, there are vast swathes (one might say these swathes constitute the majority of his work) in which he is thinking juridically. This is particularly evident (to me) in – say – Political Theology; I read a lot of people who take Schmitt speaking very narrowly of states of exception. Yet, it seems to me that alongside this Schmitt’s decisionism extended into legal decision-making as such. This depiction of indeterminacy (which McCormick is very good on) is powerful precisely because it totally problematises a central plank of liberal-capitalist ideology the ‘rule of law’ (and not men). The mature Schmitt is even better on this, but it seems few people have read On the Three Types of Juristic Thought – perhaps because it is a much more juridical work.

I think it’s quite interesting to compare the way in which Pashukanis and Agamben approach this. Agamben’s approach seems to be primarily philosophical/theoretical, with some nods towards historical analysis. Pashukanis approaches the question both logically and historically, grounding his logical analysis in historical presentation (although one can hardly call his brief historical considerations an in-depth analysis). What I also find interesting about Pashukanis’ work (and this describes his work more generally) is the way in which he depicts the unfolding of theoretical argument through a historical process.

I’m also tempted to say that Agamben’s lack of an explicit theorisation of the legal form hinders him somewhat (although again I have in no way read his entire oeuvre and so am probably wrong). So Pashukanis doesn’t just argue that law needs disorder etc.; he outlines a specific historical process through which deviations eventually constitute the norm, which eventually gains its legal character. Whereas, with Agamben it’s just kind of there. This of course raises a whole host of other problems – chief among them that inclusive exceptions might be said to operate amongst a whole host of regulative social relations (something which Agamben is happy to acknowledge). However, I think I’ll leave my mediations for now, and return to this at a later point, as all I really want to do is quote Pashukanis at people, this would not be wise, but I would again recommend people read him. I think I’ll also write something a wee bit more coherent at a later time.

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[1] Homo Sacer, pp.26-27

[2] General Theory of Law and Marxism, p.110

Agamben (but not really)

Of late I have been – rather slowly it has to be said – making my way through Giorgio Agamben’s Homo Sacer[1]. Whilst I’m sure this is hardly interesting news to most people (as likely you won’t care or have already read it), I thought I might as well occasionally blog my thoughts on the book. I found the following argument rather interesting:

One of the most persistent features of Foucault’s work is its decisive abandonment of the traditional approach to the problem of power, which is based on juridico-institutional models (the definition of sovereignty, the theory of the State), in favour of an unprejudiced analysis of the concrete ways in which power penetrates subjects’ very bodies and forms of life ... Foucault seemed to orient this analysis according to two distinct directives for research: on the one hand, the study of political techniques (such as the science of the police) with which the State assumes and integrates the care of natural life of individuals into its very center; and on the other hand, the examination of technologies of the self by which processes of subjectivization bring the individual to bind himself to his own identity and consciousness and, at the same time, to an external power ... Clearly these two lines ... intersect in many points and refer back to a common center ... Yet the point at which these two faces of power converge remains strangely unclear in Foucault’s work ... If Foucault contests the traditional approach to the problem of power, which is exclusively based on juridical models ... or on institutional models ... and if he calls for a “liberation from the theoretical privilege of sovereignty” in order to construct an analytic of power that would not take law as its model and code then where, in the body of power, is the zone of indistinction (or, at least, the point of intersection) at which techniques of totalizing procedures converge? ... [W]hat is the point at which the voluntary servitude of individuals comes into contact with objective power? ... Confronted with phenomena such as the power of the society of the spectacle that is everywhere transforming the political realm today, is it legitimate or even possible to hold subjective technologies and political techniques apart?[2]

As I say, I find this position to be quite interesting, and on some levels it reflects how I have felt when I engaged with Foucault’s work (I should add that this has been a very limited engagement, a situation I hope to remedy sometime). For me, what is particularly interesting is the notion that ‘the traditional approach to the problem of power’ was based ‘exclusively on juridical ... or ... institutional models’ and took ‘law as its mode and code’. Of course, I should firstly note that Agamben may not accurately represent Foucault’s views, I am inclined to think that he gets to the gist of what Foucault (sometimes) says quite well, but am ready to be corrected otherwise.

With this in mind there are a few ways in which this interests me. Firstly, one ought to point out the slippery notion of the idea of the notion of a ‘traditional’ mode of analysis. Designating something as traditional is a rhetoric flourish which tends to mark one out as ‘radical’ and reduces complex theoretical positions to some single ‘idea’. I say this because orthodox/mainstream accounts of power clearly have recognised the importance of informal/non-state power. Sure, there is a tradition (that one might designate ‘libertarian’) whose sole purpose seems to ideologically obfuscate the fact that non-state actors can wield tremendous amounts of power, but I don’t think we can just call these people ‘traditional’ and be done with it.

This is more important when we take into account critical theorists. Whilst obviously not ‘mainstream’ such positions were nonetheless often accused by Foucault of being too fixated on state power (particularly Marxists). This always struck me as incredibly counter-intuitive, seeing as how for traditional Marxists political power was subordinate too or at least produced (dialectically) by economic power. But this isn’t what really interests me, instead we need to examine the vision of ‘law’ that is put forward in this type of analysis. Here law is seen as inextricably linked to the state – as a kind of directive vertically addressed from the state to the citizen – hence its linkage with ‘objective power’. This view – that of law as sovereign command – does have a certain lineage, one can find it in some of the older legal positivists, but by and large it has been rejected by orthodox legal theory. Thus, there is the classical argument by Hart, that this sort of position has real difficulty in explaining whole swathes of civil law – contracts, marriages etc. – whereby the law isn’t a projection of state power so much as a mode by which individuals are able to form relationships. Here the state may craft the outlines of some rules (although this again is by no means certain) and judges will step in, but only in the last instance. The same can be said of human rights. Here what we have rights that individuals have which can be asserted against individuals or against the state. Whilst one might attempt to characterise human rights as the state commanding itself/others to behave in a certain way, this seems to miss the point. Human rights are characterised by their active assertion by the rights-holders or those representing them. Finally, of course, there is the matter of international law (my own personal obsession) here of course there is no body with the monopoly on legitimate violence that characterises the ‘traditional’ vision of the state.

This is the typical argument of a ‘Pashukanite’. Law can’t just be conceived as the ‘norm’ directed from state power, as this fails to encompass many of the relationships we currently consider to be legal. Furthermore, the state addresses its subjects through numerous commands and directives which we might not characterise as law. The next step of course is to argue that ‘law’ cannot be considered from content, function etc., as other things have similar contents, functions etc. – we have to move to seeing law as a social relationship or a social form. Pashukanis sees the legal form as one in which individuals are posited as formally equal, abstract units and regulated as such.

This gives us two immediate considerations to think about. Firstly, as Pashukanis notes, the growth of law can be characterised as ‘the disintegration of organic patriarchal relations and their replacement by legal relations, that is to say relations between formally equal subjects’[3]. If we wanted to put this in good old Foucauldian terms, we might say that for Pashukanis the process of ‘juridicalisation’ goes on concomitantly with – and perhaps even drives – the process of individuation. This, of course, somewhat problematises the law/discipline (etc.) distinction, precisely because Pashukanis sees that individuation (and ultimately the production of selves) is at least partly a legal process. Richard Kinsey, in what I consider to be one the best works in Marxist legal theory, put it this way (emphasis mine):

What is important here however is not so much the invisibility of the legal relation but its possibility. That is, the possibility of the concretisation in legal relations of all social relations of commodity production and exchange, a possibility which is essential and specific to the commodity structure of the capitalist mode of production. It is this potential for the extension of legal relations to include and define all social relations which marks the full and mature development of law in the bourgeois epoch and displays the inherently bourgeois character of law as a lived relations, as a definition of subjectivity.[4]

Linked to this of course is the reach of legal power. Foucault is often said to have contrasted micro-power and macro-power, with law largely confined to the latter category. But I would argue against this. Firstly, in the sense – as above – that the legal form is an important driving force in the constitution of individual subjectivity, but secondly because once you correctly understand law as a form of social regulation then we can see how law is constantly involved in the micro-politics of everyday life. So – and this is the usual law school spiel – there is the obvious contractual stuff – with the obvious example of sale and the crucial example of the alienation of labour-power. But there is also anti-discrimination legislation, health and safety laws, working time regulations etc. There is a plethora of labour law and human rights law that is clearly a part of the texture of micro-politics.

And this bring me nicely onto another point about law. Whilst I have stressed that the law simply cannot be thought of as ‘state power’ it would be rather silly to just remove state power from the equation. Instead law should be understood as a relationship that requires force for its actualisation (although what type of ‘force’ is a point we need to specify) and one through which the bourgeois state typically articulates its demands. This dialectical understanding – law as a relationship of formal equality through which objective violence is articulated in nicely captured by Pashukanis (in one of my favourite quotes of his):

Before us is some sort of strange dual concept; although both aspects are located at different levels, they nevertheless undoubtedly condition each other. Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals "to be disassociated, yet integrated in society". On the one hand, law completely merges with external authority, and on the other it completely opposes every external authority not recognized by it.[5]

Here Pashukanis seems to be agreeing with Agamben – law cannot be understood as operating on the subjective/objective divide of power. Instead law encompasses – dialectically – both of these processes constituting subjectivities autonomous of the state, whilst also bringing in the objective violence of the state. Recognition of this fact also leads to some particularly interesting examples. Thus, the human rights movement and the labour rights movement have both done good things. They have used the law to try and alleviate the suffering of people. Yet – through using the legal form – they have vastly expanded the acceptable range of state power (this could also be linked with Schmitt’s observation that the welfare state has politicised everything and so vastly expanded the range of the political[6]) and legitimated the idea that power is able to intervene in any sphere of social life and must necessarily monitor it for any violations. This is all brilliantly summed up in Rajagopal’s book International Law From Below[7]. This book is perhaps the most theoretically astute of all of the TWAIL works, brilliantly deploying a number of critical theoretical concepts to interrogate the history of the international human rights movement (although it does suffer slightly from the malaise I outlined earlier this month as regards ‘deep’, ‘explanatory’ theory). In respect of the human rights movement Rajagopal notes a certain schizophrenia towards state power:

While these debates [on the possibility of economic and social rights] are important, they suffer from a common schizophrenia and ambivalence: a deep suspicion of sovereignty and state on the one hand (conflating them in that process), and a total reliance on the moral possibilities of the state on the other. That is, while the human-rights discourse celebrates the retreat of the state, the realization of human rights is predicated on the expansion of the state.[8]

Fredric Megret (in a review) puts it rather more starkly in relation to international criminal law:

None of the authors reviewed pays much attention to or seems much perturbed by the paradox that the apex of the human rights movement comes in the form of a tribunal that is not a human rights tribunal properly so-called; nor has there been much notice of the historical irony that the international human rights movement, which started among other things as a challenge of the state’s penal excesses, should end up legitimizing a huge system of criminal repression.[9]

One can only really understand this process through the characterisation of law roughly outlined above – through moving away from the vulgar-positivist concept of law (and I do mean the vulgar view, as opposed to the more sophisticated positivism of today) and towards the conception of law outlined above. I often wonder why it is that Foucault and those he influenced (I think Poulantzas suffers from a similar problem) fail to do this. Sometimes I think it may be down to the fact that they operated in continental legal systems, which are usually portrayed as simple lists of rules emanating from the state.

I think I’ve rambled on long enough (though wonderfully this has made me read a few things for information that I hadn’t touched in a few months and they’re fairly awesome), later on in the week I have a few more Agamben ideas that I want to work through.

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[1] 1998, Stanford University Press

[2] Ibid., p.6

[3] “Preface to the Second Russian Edition” in Law and Marxism: A General Theory, (1978) Inklinks

[4] Richard Kinsey, “Marxism and Law: Preliminary Analyses” (1978) 5 British Journal of Law and Society 202, at p.218

[5] General Theory of Law and Marxism, p.70

[6] Concept of the Political, (1996) Chicago University Press, p.22

[7] 2005, Cambridge University Press

[8]Ibid., p.189

[9] “The Politics of International Criminal Justice”, p.7