Homo sacer: biće zakonski mrtvo mada biološki još uvijek živo; biće Zwischenlanda.
Homo sacer (Latin for "the sacred man") is an obscure figure of Roman law: a person who is banned, may be killed by anybody, but may not be sacrificed in a religious ritual. The person is excluded from all civil rights, while his/her life is deemed "holy" in a negative sense.
Homo Sacer according to Agamben
Italian philosopher Giorgio Agamben used this concept for his book Homo Sacer: Sovereign Power and Bare Life. Agamben describes the homo sacer as an individual who exists in the law as an exile. There is, he thinks, a paradox: It is only because of the law that society can recognize the individual as homo sacer, and so the law that mandates the exclusion is also what gives the individual an identity.
Agamben holds that life exists in two capacities. One is natural biological life (Greek: Zoë) and the other is political life (Greek: bios). This zoe is related by Agamben himself to Hannah Arendt's description of the refugee's "naked life" in The Origins of Totalitarianism (1951). The effect of homo sacer is, he says, a schism of one's biological and political lives. As "bare life", the homo sacer finds himself submitted to the sovereign's state of exception, and, though he has biological life, it has no political significance.
Agamben says that the states of homo sacer, political refugees, those persecuted in the Holocaust, and the "enemy combatants" imprisoned in Guantanamo Bay and other sites are similar. As support for this, he mentions that the Jews were stripped of their citizenship before they were placed in concentration camps.
Thus, Agamben argues, "the so-called sacred and inalienable rights of man prove to be completely unprotected at the very moment it is no longer possible to characterize them as rights of the citizens of a state", following in this Hannah Arendt's reasoning concerning the 1789 Declaration of the Rights of Man and of the Citizen, which tied human rights to civil rights. Although human rights were conceived of as the ground for civil rights, the privation of those civil rights (as, for example, in the case of stateless people or refugees) made them comparable to "savages", many of whom were exterminated, as Arendt showed, during the New Imperialism period. Arendt's thought is that respect of human rights depends on the guarantee of civil rights, and not the other way around, as argued by the liberal natural rights philosophers.
Interview with Giorgio Agamben – Life, A Work of Art Without an Author: The State of Exception, the Administration of Disorder and Private Life
Editors’ note: this interview, conducted by Ulrich Raulff in Rome on 4March 2004, was originally published, in German, by the Süddeutsche Zeitung on 6 April 2004. We are grateful to Ulrich Raulff and Giorgio Agamben for the permission to translate and publish this interview in German Law Journal. This translation was made by German Law Journal Co-Editor, Morag Goodwin, EUI, Florence. All notes have been provided for this publication by the editors.
Raulff: Your latest book The State of Exception has recently been published in German. It is an historical and legal-historical analysis of a concept that we, at first blush, associate with Carl Schmitt. What does this concept mean for your Homo Sacerproject?
Agamben: The State of Exception belongs to a series of genealogical essays that follow on from Homo Sacer and which should form a tetralogy. Regarding the content, it deals with two points. The first is a historical matter: the state of exception or state of emergency has become a paradigm of government today. Originally understood as something extraordinary,an exception, which should have validity only for a limited period of time, but a historical transformation has made it the normal form of governance. I wanted to show the consequence of this change for the state of the democracies in which we live. The second is of a philosophical nature and deals with the strange relationship of law and lawlessness, law and anomy. The state of exception establishes a hidden but fundamental relationship between law and the absence of law. It is a void, a blank and this empty space is constitutive of the legal system.
Raulff: You wrote already in the first volume of Homo Sacer that the paradigm of the state of exception came into being in the concentration camps, or corresponds to the camps. The indignant outcry of last year as you applied this concept to the United States, to American politics, was predictably loud. Do you still consider your critique to be correct?
Agamben: Regarding such an application, the publication of my Auschwitz book brought similar remonstrance. But I am not an historian. I work with paradigms. A paradigm is something like an example, an exemplar, a historically singular phenomenon. As it was with the panopticon for Foucault, so is the Homo Sacer or the Muselmann or the state of exception for me. And then I use this paradigm to construct a large group of phenomena and in order to understand an historical structure, again analogous with Foucault, who developed his “panopticism” from the panopticon. But this kind of analysis should not be confused with a sociological investigation.
Raulff: Nevertheless, people were shocked by your comparison because it seemed to equate American and Nazi policies.
Agamben: But I spoke rather of the prisoners in Guantánamo, and their situation is legally-speaking actually comparable with those in the Nazi camps. The detainees of Guantanamo do not have the status of Prisoners of War, they have absolutely no legal status. They are subject now only to raw power; they have no legal existence. In the Nazi camps, the Jews had to be first fully “denationalised” and stripped of all the citizenship rights remaining after Nuremberg, after which they were also erased as legal subjects.
Raulff: What do you understand the connection to be to America’s security policy? Does Guantánamo belong to the transition you have previously described from governance through law to governance through the administration of the absence of order?
Agamben: This is the problem behind every security policy, ruling through management, through administration. In the1968 course at the Collčge de France, Michel Foucault showed how security becomes in the 18th century a paradigm of government. For Quesnay, Targot and the other physiocratic politicians, security did not mean the prevention of famines and catastrophes, but meant allowing them to happen and then being able to orientate them in a profitable direction. Thus is Foucault able to oppose security, discipline and law as a model of government. Now I think to have to have discovered that both elements – law and the absence of law – and the corresponding forms of governance – governance through law and governance through management – are part of a double-structure or a system. I try to understand how this system operates. You see, there is a French word that Carl Schmitt often quotes and that means: Le Roi reigne mail il ne gouverne pas (the King reigns but he does not govern). That is the termini of the double-structure: to reign and to govern. Benjamin brought the conceptual pairing of schalten and walten (command and administer) to this categorization. In order to understand their historical dissociation one must then first grasp their structural interrelation.
Raulff: Again, is the time of law over? Do we live now in an era of rule by decree (Schaltung), of cybernetic regulation and of the pure administration of mankind?
Agamben: At first glance it really does seem that governance through administration, through management, is in the ascendancy, while rule by law appears to be in decline. We are experiencing the triumph of the management, the administration of the absence of order.
Raulff: But do we not also observe, at the same time, the enlargement of the whole legal system and a tremendous increase in legal regulation? More laws are created on a daily basis and the Germans, for example, regularly feel that they are governed far more by Karlsruhe than Berlin.
Agamben: Also there you see that both elements of the system coexist with one another, and that they both are driven to the extreme, so much so, that they seem at the end to fall apart. Today we see how a maximum of anomy and disorder can perfectly coexist with a maximum of legislation.
Raulff: From the way you have just described it, I see a rift that leads to an ever-starker polarization. Elsewhere, however, you say that the classical realm of the political will become ever narrower – and that sounds somewhat critical and decadently theoretical.
Agamben: Allow me to reply with Benjamin: there is no such thing as decline. Perhaps this is because the age is always already understood as being in decline. When you take a classical distinction of the political-philosophical tradition such as public/private, then I find it much less interesting to insist on the distinction and to bemoan the diminution of one of the terms, than to question the
interweaving. I want to understand how the system operates. And the system is always double; it works always by means of opposition. Not only as private/public, but also the house and the city, the exception and the rule, to reign and to govern, etc. But in order to understand what is really at stake here, we must learn to see these oppositions not as “di-chotomies” but as “di-polarities,” not substantial, but tensional. I mean that we need a logic of the field, as in physics, where it is impossible to draw a line clearly and separate two different substances. The polarity is present and acts at each point of the field. Then you may suddenly have zones of indecidability or indifference. The state of exception is one of those zones.
Raulff: Does the endpoint – and therewith the reality – of the private still have a meaning, in the sense of your systematic examination too? Is there something there that is worth defending?
Agamben: It is firstly obvious that we frequently can no longer differentiate between what is private and what public, and that both sides of the classical opposition appear to be losing their reality. And the detention camp at Guantánamo is the locus par excellence of this impossibility. The state of exception consists, not least, in the neutralization of this distinction. Nonetheless, I think that the concept is still interesting. Think only of the multitude of organizations and activities in the United States that, at present, are devoted to the protection and defense of “privacy” and attempt to define what belongs within this realm and what does not.
Raulff: How does this then involve your work?
Agamben: Homo Sacer is supposed to, as I said at the beginning, comprise four volumes in total. The last and most interesting for me will not be dedicated to an historical discussion. I would like to work on the concepts of forms-of-life and lifestyles. What I call a form-of-life is a life that can never be separated from its form, a life in which it is never possible to separate something such as bare life. And here too the concept of “privacy” comes in to play.
Raulff: At this point you clearly link up again with Foucault, perhaps with Roland Barthes as well, who held one of his later lectures on the topic of Vivre ensemble.
Agamben: Yes, but Foucault went back in history to the Greeks and the Romans when he had this idea. When you work on this topic, you suddenly no longer have a floor under your feet. And here you see clearly that we seem not to have any access to the present and to the immediate, except through what Foucault called an archaeology. But what an archaeology could be, whose object is a form-of-life, that is to say an immediate life experience, this is not easy to say.
Raulff: As I understand it, almost every philosopher has had a vision of the good and the right or of a philosophical life as well. What does yours look like?
Agamben: The idea that one should make his life a work of art is attributed mostly today to Foucault and to his idea of the care of the self. Pierre Hadot, the great historian of ancient philosophy, reproached Foucault that the care of the self of the ancient philosophers did not mean the construction of life as a work of art, but on the contrary a sort of dispossession of the self. What Hadot could not understand is that for Foucault, the two things coincide. You must remember Foucault’s criticism of the notion of author, his radical dismissal of authorship. In this sense, a philosophical life, a good and beautiful life, is something else: when your life becomes a work of art, you are not the cause of it. I mean that at this point you feel your own life and yourself as something “thought,” but the subject, the author, is no longer there. The construction of life coincides with what Foucault referred to as “se deprendre de soi.” And this is also Nietzsche’s idea of a work of art without the artist.
Raulff: For all those who have tried over the last thirty years to forge a non-exclusive form of politics, Nietzsche was the decisive reference. Why is he not that for you?
Agamben: Oh, Nietzsche was important for me also. But I stand rather more with Benjamin, who said, the eternal return is like the punishment of detention, the sentence in school in which one had to copy the same sentence a thousand times….
Raulff: But the work of the Italian Philological School around and after Montinari has precisely shown us that Nietzsche is not a hard, despotic author, as one wanted us to believe for so long, but rather an open, traversed and criss-crossed system of readings and ideas – a work of art without author, like you just now called for.
Agamben: If that is so, then we need to learn to forget the presence of the subject. We must protect the work against the author.
 See, e.g., Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-Roazen trans., Stanford University Press 1998). Homo Sacer is, according to ancient Roman law, a human being that could not be ritually sacrificed but whom one could kill without being guilty of committing murder. Agamben uses the concept as the underpinning for a fresh decoding of the major political difficulty in our century: the rise of the worst sort of totalitarianisms, with Nazism at its apex.
 Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive (reprint, Zone Books 2002).
 See, e.g., Michel Foucault, The Foucault Reader 217 (Pantheon 1984) (“[It was only] in the penitentiary institutions that Bentham’s utopia could be fully expressed in a material form. In the 1830s, the panopticon became the architectural program of most prison projects. It was the most direct way of expressing ‘the intelligence of discipline ...’”). The panopticon consisted of a large courtyard, with a tower in the center, surrounded by a series of buildings divided into levels.
 Id. at 212. ("... And, although the universal juridicism of modern society seems to fix limits on the exercise of power, its universally widespread panopticism enables it to operate, on the underside of the law, a machinery that is both immense and minute, …”).
 On 20 April 2004 the U.S. Supreme Court heard argument in cases seeking the determination of the legal status and judicial access of the Guantánamo detainees. See, e.g., Rasul v. Bush, No. 03-334 (D.C. Cir filed 2 Sept. 2003), cert. granted 124 S.Ct. 534 (2003).
 The Nuremberg Laws, decreed at the 1934 Nazi “Party Conference on Freedom” included a law on citizenship, “which deprived all those ‘not of German blood’ of their rights as citizens.” Ingo Müller, Hitler’s Justice 96-97 (Deborah Lucas Schneider trans., Harvard University Press 1991).
 Karlsruhe is the seat of the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) and the Bundesgerichtshof (BGH – German Federal Court of Justice). For a sense of the judicializing-political meaning of Karlsruhe, see Gerhard Casper, The “Karlsruhe Republic” – Keynote Address at the State Ceremony Celebrating the 50th Anniversary of the Federal Constitutional Court, 2 German Law Journal No. 18 (01 December 2001), at http://www.germanlawjournal.com/article.php?id=111.
 See, e.g., Michel Foucault, Archeology of Knowledge (Pantheon 1982).
 See, e.g., Pierre Hadot, What is Ancient Philosophy (Michael Chase trans., Belknap 2004); Philosophy as a Way of Life: Spiritual Exercises from Socrates to Foucault (Pierre Hadot and Arnold Davidson eds., Michael Chase trans., Blackwell 1995).
HOMO SACER AS THE OBJECT OF THE DISCOURSE OF THE UNIVERSITY
by Slavoj Zizek
L'envers de la psychanalyse, Seminar XVII (1969-1970) on the four discourses, is Lacan's response to the events of 1968 - its premise is best captured as his reversal of the well-known anti-structuralist graffiti from the Paris walls of 1968 "Structures do not walk on the streets!" - if anything, this Seminar endeavors to demonstrate how structures DO walk on the streets, i.e. how structural shifts CAN account for the social outbursts like that of the 1968. Instead of the one symbolic Order with its set of a priori rules which guarantee social cohesion, we get the matrix of the passages from one to another discourse: Lacan's interest is focused on the passage from the discourse of the Master to the discourse of University as the hegemonic discourse in contemporary society. No wonder that the revolt was located at the universities: as such, it merely signaled the shift to the new forms of domination in which the scientific discourse serves legitimizes the relations of domination. Lacan's underlying premise is sceptic-conservative - Lacan's diagnosis is best captured by his famous retort to the student revolutionaries: "As hysterics, you demand a new master. You will get it!" This passage can also be conceived in more general terms, as the passage from the prerevolutionary ancien regime to the postrevolutionary new Master who does not want to admit that he is one, but proposes himself as a mere "servant" of the People — in Nietzsche's terms, it is simply the passage from Master's ethics to slave morality, and this fact, perhaps, enables us a new approach to Nietzsche: when Nietzsche scornfully dismisses "slave morality," he is not attacking lower classes as such, but, rather, the new masters who are no longer ready to assume the title of the Master - "slave" is Nietzsche's term for a fake master. — How, then, more closely, are we to read the university discourse?
The university discourse is enunciated from the position of "neutral" Knowledge; it addresses the remainder of the real (say, in the case of pedagogical knowledge, the "raw, uncultivated child"), turning it into the subject ($). The "truth" of the university discourse, hidden beneath the bar, of course, is power, i.e. the Master-Signifier: the constitutive lie of the university discourse is that it disavows its performative dimension, presenting what effectively amounts to a political decision based on power as a simple insight into the factual state of things. What one should avoid here is the Foucauldian misreading: the produced subject is not simply the subjectivity which arises as the result of the disciplinary application of knowledge-power, but its remainder, that which eludes the grasp of knowledge-power. "Production" (the fourth term in the matrix of discourses) does not stand simply for the result of the discursive operation, but rather for its "indivisible remainder," for the excess which resists being included in the discursive network, i.e. for what the discourse itself produces as the foreign body in its very heart. Perhaps the exemplary case of the Master's position which underlies the university discourse is the way in which medical discourse functions in our everyday lives: at the surface level, we are dealing with pure objective knowledge which desubjectivizes the subject-patient, reducing him to an object of research, of diagnosis and treatment; however, beneath it, one can easily discern a worried hystericized subject, obsessed with anxiety, addressing the doctor as his Master and asking for reassurance from him. At a more common level, suffice it to recall the market expert who advocates strong budgetary measures (cutting welfare expenses, etc.) as a necessity imposed by his neutral expertise devoid of any ideological biases: what he conceals is the series of power-relations (from the active role of state apparatuses to ideological beliefs) which sustain the "neutral" functioning of the market mechanism.
In the University discourse, is not the upper level ($ — a) that of biopolitics (in the sense deployed from Foucault to Agamben)? Of the expert knowledge dealing with its object which is a - not subjects, but individuals reduced to bare life? And does the lower not designate what Eric Santner called the "crisis of investiture," i.e., the impossibility of the subject to relate to S1, to identify with a Master-Signifier, to assume the imposed symbolic mandate?1 The key point is here that the expert rule of "biopolitics" is grounded in and conditioned by the crisis of investiture; this crisis generated the "post-metaphysical" survivalist stance of the Last Men, which ends up in an anemic spectacle of life dragging on as its own shadow. It is within this horizon that one should appreciate today's growing rejection of death penalty: what one should be able to discern is the hidden "biopolitics" which sustains this rejection. Those who assert the "sacredness of life," defending it against the threat of transcendent powers which parasitize on it, end up in a world in which, on behalf of its very official goal — long pleasurable life — all effective pleasures are prohibited or strictly controlled (smoking, drugs, food…). Spielberg's Saving Private Ryan is the latest example of this survivalist attitude towards dying, with its "demystifying" presentation of war as a meaningless slaughter which nothing can really justify - as such, it provides the best possible justification for the Colin Powell's "no-casualties-on-our-side" military doctrine.
On today's market, we find a whole series of products deprived of their malignant property: coffee without caffeine, cream without fat, beer without alcohol... And the list goes on: what about virtual sex as sex without sex, the Colin Powell doctrine of warfare with no casualties (on our side, of course) as warfare without warfare, the contemporary redefinition of politics as the art of expert administration as politics without politics, up to today's tolerant liberal multiculturalism as an experience of Other deprived of its Otherness (the idealized Other who dances fascinating dances and has an ecologically sound holistic approach to reality, while features like wife beating remain out of sight…)? Virtual Reality simply generalizes this procedure of offering a product deprived of its substance: it provides reality itself deprived of its substance, of the resisting hard kernel of the Real - in the same way decaffeinated coffee smells and tastes like the real coffee without being the real one, Virtual Reality is experienced as reality without being one.
Is this not the attitude of the hedonistic Last Man? Everything is permitted, you can enjoy everything, BUT deprived of its substance which makes it dangerous. (This is also Last Man's revolution — "revolution without revolution.") Is this not one of the two versions of Lacan's anti-Dostoyevski motto "If God doesn't exist, everything is prohibited"? (1) God is dead, we live in a permissive universe, you should strive for pleasures and happiness — but, in order to have a life full of happiness and pleasures, you should avoid dangerous excesses, so everything is prohibited if it is not deprived of its substance; (2) If God is dead, superego enjoins you to enjoy, but every determinate enjoyment is already a betrayal of the unconditional one, so it should be prohibited. The nutritive version of this is to enjoy directly the Thing Itself: why bother with coffee? Inject caffeine directly into your blood! Why bother with sensual perceptions and excitations by external reality? Take drugs which directly affect your brain! - And if there is God, then everything is permitted — to those who claim to act directly on behalf of God, as the instruments of His will; clearly, a direct link to God justifies our violation of any "merely human" constraints and considerations (as in Stalinism, where the reference to the big Other of historical Necessity justifies absolute ruthlessness).
Today's hedonism combines pleasure with constraint — it is no longer the old notion of the "right measure" between pleasure and constraint, but a kind of pseudo-Hegelian immediate coincidence of the opposites: action and reaction should coincide, the very thing which causes damage should already be the medicine. The ultimate example of it is arguably a chocolate laxative, available in the US, with the paradoxical injunction "Do you have constipation? Eat more of this chocolate!", i.e., of the very thing which causes constipation. Do we not find here a weird version of Wagner's famous "Only the spear which caused the wound can heal it" from Parsifal? And is not a negative proof of the hegemony of this stance the fact that true unconstrained consumption (in all its main forms: drugs, free sex, smoking…) is emerging as the main danger? The fight against these dangers is one of the main investments of today's "biopolitics." Solutions are here desperately sought which would reproduce the paradox of the chocolate laxative. The main contender is "safe sex" — a term which makes one appreciative of the truth of the old saying "Is having sex with a condom not like taking a shower with a raincoat on?". The ultimate goal would be here, along the lines of decaf coffee, to invent "opium without opium": no wonder marijuana is so popular among liberals who want to legalize it — it already IS a kind of "opium without opium."
The structure of the "chocolate laxative," of a product containing the agent of its own containment, can be discerned throughout today's ideological landscape. There are two topics which determine today's liberal tolerant attitude towards Others: the respect of Otherness, openness towards it, AND the obsessive fear of harassment — in short, the Other is OK insofar as its presence is not intrusive, insofar as the Other is not really Other… A similar structure is clearly present in how we relate to capitalist profiteering: it is OK IF it is counteracted with charitable activities — first you amass billions, then you return (part of) them to the needy… And the same goes for war, for the emergent logic of humanitarian or pacifist militarism: war is OK insofar as it really serves to bring about peace, democracy, or to create conditions for distributing humanitarian help. And does the same not hold more and more even for democracy: it is OK if it is "rethought" to include torture and a permanent emergency state, if it is cleansed of its populist "excesses," and if the people are "mature" enough to live by it…
However, what we were describing what cannot but appear as two opposite ideological spaces: that of the reduction of humans to bare life, to homo sacer as the dispensable object of the expert caretaking knowledge; and that of the respect for the vulnerable Other brought to extreme, of the attitude of narcissistic subjectivity which experiences itself as vulnerable, constantly exposed to a multitude of potential "harassments." Is there a stronger contrast than the one between the respect for the Other's vulnerability and the reduction of the Other to "mere life" regulated by the administrative knowledge?
But what if these two stances nonetheless rely on the same root, what if they are the two aspects of one and the same underlying attitude, what if they coincide in what one is tempted to designate as the contemporary case of the Hegelian "infinite judgement" which asserts the identity of opposites? What the two poles share is precisely the underlying refusal of any higher Causes, the notion that the ultimate goal of our lives is life itself. Nowhere is the complicity of these two levels clearer as in the case of the opposition to death penalty — no wonder, since (violently putting another human being to) death is, quite logically, the ultimate traumatic point of biopolitics, the politics of the administration of life. To put it in Foucauldian terms, is the abolition of death penalty not part of a certain "biopolitics" which considers crime as the result of social, psychological, ideological, etc., circumstances: the notion of the morally/legally responsible subject is an ideological fiction whose function is to cover up the network of power relations, individuals are not responsible for the crimes they commit, so they should not be punished? Is, however, the obverse of this thesis not that those who control the circumstances control the people? No wonder the two strongest industrial complexes are today the military and the medical, that of destroying and that of prolonging life.
Superego is thus not directly S2; it is rather the S1 of the S2 itself, the dimension of an unconditional injunction that is inherent to knowledge itself. Recall the informations about health we are bombarded with all the time: "Smoking is dangerous! To much fat may cause a heart attack! Regular exercise leads to a longer life!" etc.etc. — it is impossible not to hear beneath it the unconditional injunction "You should enjoy a long and healthy life!"… What this means is that the discourse of the University is thoroughly mystifying, concealing its true foundation, obfuscating the unfreedom on which it relies.
1. See Eric Santner, My Own Private Germany, Princeton: Princeton University Press 1996.
HOMO SACER - Suverena moć i goli život
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