"To explain his position, Agamben redefines the sovereign/subject relation completely. Foucault had already questioned the idea of sovereign and subject as each other’s mirror.4 Agamben puts this relationship as two sides of a paradox. On the one hand, there are the operations of democratic politics which necessarily have to assume the whole subject, the subject of rights based on liberal consensus. On the other hand, we have the ceaseless production of bare lives through biopolitical-sovereign nexus that reduces life to its minimum essentials, a “spectral lump” bereft of all rights, but it, at the same time, has to be located in the interstices of the juridical. Excavating ancient Roman law, Agamben finds the right trope for this state: the figure of homo sacer (“sacer” here means both sacred and cursed: the Latin sacrificium/sacr/sacer). Borrowing from the Roman writer Pompeius Festus, Agamben frames the homo sacer as the quintessence of extreme marginality, one who cannot be sacrificed to the gods (for his death is of no value to the gods) but who can be killed with impunity (because he enjoys no legal protection). For Agamben, the figure is neither merely historical nor a residuum, but a generalized trope for included exclusion of modern life, “an epitomic site of the social markings and symbolization of the workings of the sovereign” (Lemke 2005: 6). In other words, it is a limit concept, the source of sovereign power. Homo sacer is at once sacred and accursed since it is located exterior with respect to the human order that it helps to establish. In the eyes of the homo sacer every one is a potential sovereign; conversely, to the sovereign, everyone is a potential homo sacer. Destruction of such life does not mean homicide; killing here does not involve law and yet it does not indicate lawlessness. As is evident here, it is through the exception of law (legally performed) that sovereignty and life are brought into conjunction; in other words, even though the sovereign defines and ratifies the exception, it is exception that founds sovereign power and allows the law to take hold of life. Law is fully operative in exception. Sovereignty’s power resides in the state of exception produced by the legal order, which in turn draws its life from sovereign decision. The sovereign, much like the homo sacer, is a point of exteriority to the legal order. The difference is, while the sovereign constitutes the law by its decision of exception, the homo sacer brings out the specificity of law by being reduced to the site of the law’s interminable gaze and violence. As the sacred, homo sacer occupies a space in-between the profane and transcendent. Peter Fitzpatrick observes: “These two dimensions can only be combined in homo sacer because of the confident reference beyond, because of a sacrifice which has brought the beyond into the measure and contingency of a profane world.” (Fitzpatrick 2001) This beyond one can argue is as much the sovereign as the law – or better, the sovereign as law. In what follows, I shall focus on two aspects of Agamben’s more explicitly political thought around biopolitics: his conception of sovereignty and the exception, and his understanding of the interrelation of life and law in the notion of “bare life”. First, however, let us ask: did the homo sacer ever exist? Or, at least, in the way Agamben frames him to be? Agamben is evasive: “It appears that we are confronted with a limit concept of the Roman social order” (1998: 48). James Leigh Stratton-Davidson in his authoritative book, Problems of Roman Criminal Law (1912), argues that the homo sacer did actually exist. But the meaning he gives is significantly different. He has the following to say: when a devotee of early Roman religion committed a serious crime, he was called a homo sacer. He was taken out of the jurisdiction of the religious authorities and left to the local magistrate and wasn’t allowed the benefit of the so-called “right” to appeal. Very often the religious authorities disputed the justice meted out to the homo sacer by the magistrate. Stratton-Davidson sees in the homo sacer the point at which the pre-legal passed into the properly constituted legal in imperial Rome. If the decision to take the plaintiff out of the jurisdiction of the religious authorities to the purview of the local magistrate is the moment of the reduction of life to homo sacer, then the figure belongs to a moment of transition from the pre-legal to the legal. Read in this light, homo sacer is indeed, even historically, a “threshold” figure that Agamben considers it to be. Agamben makes a crucial reversal of Aristotle’s distinction between bare life (zoē) and good life (bios). For Aristotle, zoē is that life that man as a living animal shares with other living animals, while bios signifies man’s entry into the world of ratiocination, of the question of justice. Bios is therefore the sphere of language, the sphere that differentiates man from other animals. For millennia, this was the difference on which Western political thought was based. Agamben reverses the distinction to argue that the work of politics is precisely to monopolize the sphere of the living – merely living (zoē) – to reduce man to his bare existence, and more: to ceaselessly threaten with the prospect of annihilation: “Human life is politicized only through an unconditional power of death.” (1998: 56) Therefore Agamben’s focus is not on the life adorned with rights, but the life that fails to achieve humanity itself, “the remains as it were of our becoming moral, just and political. I say “as it were” because political life’s condition of possibility is the nonexclusion of bare life”. And a little later: “There is politics because man is the living being who, in language, separates and opposes himself to his own bare life and, at the same time, maintains himself in relation to that bare life in an inclusive exclusion.” (1998: 8) This erasural bond Agamben will call “threshold”: political life’s relation with the non-relational. Politics must again and again enact its distinction with the bare life and thus again and again bring bare life within its scope as excluded".
"In the vacuous, emaciated body of the Musselman was inscribed the law in its pure form, law that is “all the more pervasive for its total lack of content” and has force precisely in this lack. It is in relation to witnessing that Musselman becomes important for Agamben. This is the particular framework from which to read Agamben’s views on the Musselman. Primo Levi tried to show that the camps were beyond the understanding of good and evil, they were simply incomprehensible. But Agamben argues that simply to deny the Musselman’s humanity would be to accept the verdict of the SS and to create conditions for its recurrence. The Musselman is the site of an experiment in which morality and humanity are called into question, not extermination as such but the continuous production of material to be destroyed. Living becomes a performance of death. Commenting on Levi”s The Drowned and the Saved, Berel Lang observed that the Musselman and its muteness signified not a loss of life, but of death itself.10 Hurled to the precipice of life, life and death are blurred. So death loses its distinction, it becomes banal. As a mere physical presence without any remaining trace of humanity, the Musselman’s body becomes the signifier of the Nazi lexicon, the limit sovereign power cannot exceed: “the invisible ark of biopower”11 as Agamben puts it. Here we confront the primary problem of witnessing, or, to put it more emphatically, we confront the impossibility of testimony.12 It is here that the ethical/legal project of Auschwitz lies for Agamben. For Primo Levi, the problem of the witness and the survivors comes from this very point of impossibility: “I must repeat: we the survivors, are not true witnesses. … We survivors are not only an exiguous (meager) but also an anomalous minority; we are those who by their prevarications or abilities or good luck did not touch the bottom. Those who did so, those who saw the Gorgon, have not returned to tell about it or have returned mute, but they are the “Muslims”, the submerged, the complete witnesses, the ones whose deposition would have a general significance. They are the rule, we are exception.” (Levi 1989: 83-4) For Agamben, however, the Musselman as the testimony of the survivor for and on behalf of the un-dead, offers an example of the embodiment of the ethical moment in the remainder (le reste), the trace and aporia of a relationship with the Other. It needs to be remembered here that Agamben does not exactly pose the problem of testimony as an ethical problem beyond suggesting that it is an aporia. Much of the holocaust literature does this, but it may be wrong to collapse Agamben’s work in this sense with that of Friedlander or Lyotard.13 In the preface to Remnants of Auschwitz, Agamben speaks about the inadequacy of available ethical categories. He says he would be content if in his study of the testimony he has “erected some signposts allowing future cartographers of the new ethical territory to orient themselves.” (Agamben 2002: 13) “The paradox here is the following: if the person whose humanity was destroyed is the only one who testifies about the human, this means that the identity between the human and the non-human is never perfect, that it is not possible to completely destroy the human, that something always remains. The witness is this remainder.” (Agamben 2002: 176) Agamben thus returns to a consideration of the intimate connections between language and death. To reconfigure the legal and ethical status of the only possible witnesses to Auschwitz, law, language and death must all be rethought, and thought together. The possibility of constructing a language of death which is neither a dead language nor a language of the dead: this is the ethical challenge that the mute impossible witness in the figure of the Musselman leaves for us. We conclude with an attempt to link Agamben”s deliberations on the questions of exception as worked out in the figures of homo sacer and Musselman with the wider question of the political. Alexander Garcia Duttmann begins his essay “Never before, always already: notes on Agamben and the category of relation” with this nuanced reflection: “To that which was never before we cannot relate, just as we cannot relate to that which has always already been.” (2001: 3) The moment we relate to that which was never before, Duttmann explains, we have transformed it into something recognizable; similarly, the moment we relate to that which has always already been, we have made it into something new, something that never existed before. In other words, to relate is to accept that not all can be related, not all can be said, that there will be a remainder just as there will be a zone of the possible unexplored. So remainder does not make relation impossible, rather it is the very crux of relation, the silent folds within language itself and not an escape from language per se. For Agamben, this erasural identity of relation faces a void in a biopolitical context. He rules out therefore the notion of the political as the polycentric space of staking claims to denied citizenship, the terrain of the subversive or transversal of agonism. Instead, what interests Agamben is the threshold state of “being outside and yet belonging” – that is, inclusive exclusion. To come out of this inevitable bare life, the ceaseless production of bare bodies in contemporary life, Agamben evokes the eschatological, messianic time when a new form-of-life would achieve a total overturning of the conditions of abandonment. This for him is the necessary condition of redemption from biopolitical capture. The only possible link to our messianic times with the present is perhaps the indestructibility of the human, or as he says, “something always remains”.
Manas Ray (From: Life, Law, and Abandonment in Giorgio Agamben)
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