1NC
The state of exception is the new normal. Since World War I, executive
violence has been normalized by the globalization of the state of exception
when the law justifies its own suspension, transforming itself into a killing
machine, and ushering in global civil war. The response to exceptional
sovereign violence cannot be a return to the legal normal which authorizes such
surveillance to secure its own existence, but disrupting the workings of the
machine
Agamben 05, Giorgio Agamben, professor of aesthetics at the University of Verona and
author of ten books, titled: State Of Exception, pages 85-87
It is perhaps possible at this point to look back upon the path trav- eled thus far and draw some provisional conclusions from our
investi- gation of the state of exception. The
juridical system of the West appears as a double structure,
formed by two heterogeneous yet coordinated el- ements: one that is normative and juridical in
the strict sense (which we can for convenience inscribe under the rubric potestas) and one that is anomic and
metajuridical (which we can call by the name auctoritas). The normative element needs the anomic element
in order to be ap- plied, but, on the other hand, auctoritas can assert itself only in the validation or suspension of potestas. Because it results from the dialectic between these two somewhat antagonistic yet
functionally connected elements, the ancient dwelling of law is fragile and, in straining to main- tain its
own order, is always already in the process of ruin and decay. The state of exception is the
device that must ultimately articulate and hold together the two aspects of the juridico-political
machine by instituting a threshold of undecidability between anomie and nomos, between life
and law, between auctoritas and potestas. It is founded on the essential fiction according to
which anomie (in the form of auctoritas, living law, or the force of law) is still related to the juridical order and
the power to suspend the norm has an immediate hold on life. As long as the two el- ements
remain correlated yet conceptually, temporally, and subjectively distinct
(as in republican Rome’s
contrast between the Senate and the people, or in medieval Europe’s contrast between spiritual and temporal powers)
their
dialectic—though founded on a fiction—can nevertheless function in some way . But when
they tend to coincide in a single per- son, when the state of exception, in which they are bound
and blurred together, becomes the rule, then the juridico-political system transforms itself into
a killing machine. 6.10 The aim of this investigation—in the urgency of the state of ex- ception
“in which we live”—was to bring to light the fiction that governs this arcanum imperii [secret of
power] par excellence of our time. What the “ark” of power contains at its center is the state of
exception—but this is essentially an empty space, in which a human action with no re- lation to
law stands before a norm with no relation to life. This does not mean that the machine, with its
empty center, is not effective; on the contrary, what we have sought to show is precisely that it
has continued to function almost without interruption from World War One, through fascism
and National Socialism, and up to our own time. Indeed, the state of exception has today
reached its maximum worldwide deployment. The normative aspect of law can thus be obliterated and contradicted with impunity by a governmental violence that— while ignoring
international law externally and producing a permanent state of exception internally—
nevertheless still claims to be applying the law. Of course, the task at hand is not to bring the state of exception
back within its spatially and temporally defined boundaries in order to then reaffirm the primacy of a norm and of rights that are
themselves ulti- mately grounded in it. From the real state of exception in which we live, it
is not possible to return to
the state of law [stato di diritto], for at issue now are the very concepts of “state” and “law.” But if
it is possible to attempt to halt the machine, to show its central fiction, this is because between
violence and law, between life and norm, there is no substantial articulation. Alongside the
movement that seeks to keep them in rela- tion at all costs, there is a countermovement that,
working in an inverse direction in law and in life, always seeks to loosen what has been artificially and violently linked. That is to say, in the field of tension of our culture, two opposite forces act, one that institutes
and makes, and one that deactivates and deposes. The state of exception is both the point of their maximum
tension and—as it coincides with the rule—that which threatens today to render them
indiscernible. To live in the state of ex- ception means to experience both of these possibilities
and yet, by always separating the two forces, ceaselessly to try to interrupt the working of the
machine that is leading the West toward global civil war.
Because of surveillance and security, our current political society is a
paradoxical state of exception, a Security State that destroys not only
democracy and personal identity but politics itself.
Agamben 13 - philosopher known for work on the state of exception and homo sacer
(Giorgio; awarded the Dr. Leopold Lucas Prize, teaches at Accademia di Architettura di
Mendrisio; “For a Theory of Destituent Power;” Chronos; 11/16/2013;
http://www.chronosmag.eu/index.php/g-agamben-for-a-theory-of-destituent-power.html)
A reflection on the destiny of democracy today here in Athens is in some way disturbing,
because it obliges to think the end of democracy in the very place where it was born. As a
matter of fact, the hypothesis I would like to suggest is that the prevailing governamental
paradigm in Europe today is not only non democratic, but that it cannot either be considered as
political. I will try therefore to show that the European society today is no more a political
society: it is something entirely new, for which we lack a proper terminology and we have
therefore to invent a new strategy.
Let me begin with a concept which seems, starting from September 2001, to have replaced any
other political notion: security. As you know, the formula “for security reasons” functions today
in any domain, from everyday life to international conflicts, as a password in order to impose
measures that the people have no reason to accept. I will try to show that the real purpose of
the security measures is not, as it is currently assumed, to prevent dangers, troubles or even
catastrophes. I will be consequently obliged to make a short genealogy of the concept of
“security”.
One possible way to sketch such a genealogy would be to inscribe its origin and history in the
paradigm of the state of exception. In this perspective, we could trace it back to the Roman
principle Salus publica suprema lex, public safety is the highest law, and connect it with Roman
dictatorship, with the canonistic principle necessity does not acknowledge any law, with the
comites de salut publique during French revolution and finally with article 48 of the Weimar
republic, which was the juridical ground for the nazi regime. Such a genealogy is certainly
correct, but I do not think that it could really explain the functioning of the security apparatuses
and measures which are familiar to us. While the state of exception was originally conceived as
a provisional measure, which was meant to cope with an immediate danger in order to restore
the normal situation, the security reasons constitute today a pemanent technology of
government. When in 2003 I published a book in which I tried to show precisely how the state
of exception was becoming in western democracies a normal system of government, I could
not imagine that my diagnosis would prove so accurate. The only clear precedent was the Nazi
regime. When Hitler took the power in february 1933, he immediately proclaimed a decree
suspending the articles of the Weimar constitution concerning personal liberties. The decree
was never revoked, so that the entire Third Reich can be considered as a state of exception
which lasted twelve years.
What is happening today is still different. A formal state of exception is not declared and we see
instead that vague non juridical notions –like the security reasons- are used to instaure a stable
state of creeping and fictitious emergency without any clearly identifiable danger. An example
of such non juridical notions which are used as emergency producing factors is the concept of
crisis. Besides the juridical meaning of judgement in a trial, two semantic traditions converge in
the history of this term which, as it is evident for you, comes from the greek verb crino: a
medical and a theological one. In the medical tradition, crisis means the moment in which the
doctor has to judge, to decide if the patient will die or survive. The day or the days in which this
decision is taken are called crisimoi, the decisive days. In theology, crisis is the Last Judgment
pronounced by Christ in the end of times. As you can see, what is essential in both traditions is
the connection with a certain moment in time. In the present usage of the term, it is precisely
this connection which is abolished. The crisis, the judgement is split from its temporal index and
coincides now with the cronological course of time, so that, not only in economics and politics,
but in every aspect of social life, the crisis coincides with normality and becomes, in this way,
just a tool of government. Consequently, the capability to decide once for all disappears
and the continuous decision-making process decides nothing. To state it in paradoxixal terms,
we could say that, having to face a continuous state of exception, the governement tends to
take the form of a perpetual coup d’état. By the way, this paradox would be an accurate
description of what happens here in Greece as well as in Italy, where to govern means to make a
continuos series of small coups d’état. The present government of Italy is not legitimate.
This is why I think that, in order to understand the peculiar governamentality under which we
live, the paradigm of the state of exception is not entirely adequate. I will therefore follow
Michel Foucault’s suggestion and investigate the origin of the concept of security in the
beginning of modern economy, by François Quesnais and the Physiocrates, whose influence on
modern governamentality could not be overestimated. Starting with Westphalie treaty, the
great absolutist european states begin to introduce in their political discourse the idea that the
sovereign has to take care of his subjects security. But Quesnay is the first to establish security
(sureté) as the central notion in the theory of government –and this in a very peculiar way.
One of the main problems governments had to cope with at the time, was the problem of
famines. Before Quesnay, the usual methodology was trying to prevent famines by the creation
of public granaries and forbidding the exportation of cereals. Both this measures had negatives
effects on the production. Quesnay’s idea was to reverse the process: instead of trying to
prevent famines, he decided to let them happen and to be able to govern them once they
occurred, liberalizing both internal and foreign exchanges. “To govern” retains here its
etymological cybernetical meaning: a good kybernes, a good pilot can’t avoid tempests, but, if a
tempest occures, he must be able to govern his boat, using the force of waves and winds for the
navigation. This is the meaning of the famous motto “laisser faire, laissez passer”: it is not only
the catchword of economic liberalism: it is a paradigm of government, which conceives of
security (sureté, in Quesnay words) non as the prevention of troubles, but rather as the ability
to govern and guide them in the good direction once they take place.
We should not neglect the philosophical implications of this reversal. It means an epoch-making
transformation in the very idea of government, which overturns the traditional hyerachical
relation between causes and effects. Since governing the causes is difficult and expensive, it is
more safe and useful to try to govern the effects. I would suggest that this theorem by Quesnay
is the axiom of modern governamentality. The ancien regime aimed to rule the causes,
modernity pretends to control the effects. And this axiom applies to every domain: from
economy to ecology, from foreign and military politics to the internal measures of police. We
must realize that European governments today gave up any attempt to rule the causes, they
only want to govern the effects. And Quesnay’s theorem makes also understandable a fact
which seems otherwise inexplicable: I mean the paradoxical convergence today of an absolutely
liberal paradigm in economy with an unprecedented and equally absolute paradigm of state and
police control. If government aims to the effects and not to the causes, it will be obliged to
extend and multiply controls. Causes demand to be known, while effects can only be checked
and controlled.
One important sphere in which the axiom is operative is that of biometrical security
apparatuses, which is increasingly pervading every aspect of social life. When biometrical
technologies first appeared in 18th century in France with Alphonse Bertillon and in England
with Francis Galton, the inventor of finger prints, they were obviously not meant to prevent
crimes, but only to recognize recidivist delinquents. Only once a second crime has occurred, you
can use the biometrical data to identify the offender.
Biometrical technologies, which had been invented for recividist criminals, remained for
longtime their exclusive privilege. In 1943, the Congress of the USA still refused the Citizen
identification act, which was meant to introduce for every citizen an Identity Card with finger
prints. But according to a sort of fatality or unwritten law of modernity, the technologies which
have been invented for animals, for criminals, strangers or Jews, will finally be extended to all
human beings. Therefore in the course of 20th century, biometric technologies have been
applied to all citizens and Bertillon identifying photograph and Galton’s fingerprints are
currently used in every country for ID cards.
But the extreme step has been taken only in our days and it is still in the process of full
realization. The development of new digital technologies, with optical scanners which can easily
record not only finger prints but also the retina or the eye iris structure, biometrical apparatuses
tend to move beyond the police stations and immigration offices and spread to everyday life. In
many countries, the access to student’s restaurants or even to schools is controlled by a
biometric apparatus on which the student just puts his hand. The European industries in this
field, which are quickly growing, recommend that citizens get used to this kind of controls from
their early youth. The phenomenon is really disturbing, because the European Commissions for
the development of security (like the ESPR, European security research program) include among
their permanent members the representatives of the big industries in the field, which are just
armaments producers like Thales, Finmeccanica, EADS et BAE System, that have converted to
the security business.
It is easy to imagine the dangers represented by a power that could have at its disposal the
unlimited biometric and genetic information of all its citizens. With such a power at hand, the
extermination of the jews, which was undertaken on the basis of incomparably less efficient
documentation, would have been total and incredibly swift. But I will not dwell on this
important aspect of the security problem. The reflections I would like to share with you concern
rather the transformation of political identity and of political relationships that are involved in
security technologies. This transformation is so extreme, that we can legitimately ask not only if
the society in which we live is still a democratic one, but also if this society can be still
considered as political.
Christian Meier has shown how in fifth century a transformation of the political conceptuality
took place in Athens, which was grounded on what he calls a “politisation” (politisierung) of
citizenship. While till that moment the fact of belonging to the polis was defined by a number of
conditions and social status of different kind –for instance belonging to nobility or to a certain
cultual community, to be peasant or merchant, member of a certain family etc- from now on
citizenship became the main criterion of social identity.
“The result was a specifically greek conception of citizenship, in which the fact that men had to
behave as citizens found an institutional form. The belonging to economical or religious
communities was removed to a secondary rank. The citizens of a democracy considered
themselves as members of the polis, only in so far as they devoted themselves to a political life.
Polis and politeia, city and citizenship constituted and defined one another. Citizenship became
in that way a form of life, by means of which the polis constituted itself in a domain clearly
distinct from the oikos, the house. Politics became therefore a free public space as such
opposed to the private space, which was the reign of necessity”. According to Meier, this
specifically greek process of politisation was transmitted to western politics, where citizenship
remained the decisive element.
The hypothesis I would like to propose to you is that this fundamental political factor has
entered an irrevocable process that we can only define as a process of increasing depolitisation.
What was in the beginning a way of living , an essentially and irreducibly active condition, has
now become a purely passive juridical status, in which action and inaction, the private and the
public are progressively blurred and become indistinguishable. This process of depolitisation of
citizenship is so evident, that I will not dwell on it.
I will rather try to show how the paradigm of security and the security apparatuses have played
a decisive role in this process. The growing extension to citizens of technologies which were
conceived for criminals has inevitably consequences on the political identity of the citizen. For
the first time in the history of humanity, identity is no longer a function of the social personality
and its recognition by others, but rather a function of biological data, which cannot bear any
relation to it, like the arabesques of the fingerprints or the disposition of the genes in the double
helix of DNA. The most neutral and private thing becomes the decisive factor of social identity,
which loose therefore its public character.
If my identity is now determined by biological facts, that in no way depends on my will and over
which I have no control, then the construction of something like a political and ethical identity
becomes problematic. What relationship can I establish with my fingerprints or my genetic
code? The new identity is an identity without the person, as it were, in which the space of
politics and ethics loses its sense and must be thought again from the ground up. While the
greek citizen was defined through the opposition between the private and the public, the oikos ,
which is the place of reproductive life, and the polis, place of political action, the modern citizen
seems rather to move in a zone of indifference beteween the private and the public, or , to
quote Hobbes terms, the physical and the political body.
The materialization in space of this zone of indifference is the video surveillance of the streets
and the squares of our cities. Here again an apparatus that had been conceived for the prisons
has been extended to public places. But it is evident that a video recorded place is no more an
agora and becomes a hybrid of public and private, a zone of indifference between the prison
and the forum. This transformation of the political space is certainly a complex phenomenon,
that involves a multiplicity of causes, and among them the birth of biopower holds a special
place. The primacy of the biological identity over the political identity is certainly linked to the
politicization of bare life in modern states. But one should never forget that the leveling of social
identity on body identity begun with the attempt to identify the recidivist criminals. We should
not be astonished if today the normal relationship between the state and its citizens is defined
by suspicion, police filing and control. The unspoken principle which rules our society can be
stated like that: every citizen is a potential terrorist. But what is a State which is ruled by such a
principle? Can we still define it as democratic State? Can we even consider it as being something
political? In which kind of State do we live today?
You will probably know that Michel Foucault, in his book Surveiller et punir and in his courses at
the Collège de France sketched a typological classification of modern States. He shows how the
State of the Ancien regime, that he calls territorial or sovereign State and whose motto was faire
mourir et laisser vivre, evolves progressively in a population State and in a disciplinary State,
whose motto reverses now in faire vivre et laisser mourir, as it will take care of the citizens life in
order to produce healthy, well ordered and manageable bodies.
The state in which we live now is no more a disciplinary State. Gilles Deleuze suggested to call it
«Etat de contrôle», control State, because what it wants, is not to order and to impose
discipline, but rather to manage and to control. Deleuze’s definition is correct, because
management and control do not necessarily coincide with order and discipline. No one has told
it so clearly as the Italian police officer, who, after the turmoils of Genoa in July 2001, declared
that the government did not want that the police maintains order, but that it manages disorder.
American politologists, who have tried to analyze the constitutional transformation involved in
the Patriot Act and in the other laws which followed September 2001, prefer to speak of a
Security State. But what does security here mean? It is during the French revolution that the
notion of security –sureté, as they used to say- is linked to the definition of police. The laws of
March 16, 1791 and August 11, 1792 introduce thus in the French legislation the notion of
«police de sureté» (security police), which was doomed to have a long history in modernity. If
you read the debates which preceded the votation of these laws, you will see that police and
security define one another, but no one among the speakers (Brissot, Heraut de Séchelle,
Gensonné) is able to define police or security by themselves.
The debates focused on the situation of the police with respect to justice and judicial power.
Gensonné maintains that they are «two separate and distinct powers»; yet, while the function
of the judicial power is clear, it is impossible to define the role of the police. An analysis of the
debate shows that the place and function of the police is undecidable and must remain
undecidable, because, if it were really absorbed in the judicial power, police could no more
exist. This is the discretionary power which still today defines the action of the police officer,
who, in a concrete situation of danger for the public security, acts so to speak as a sovereign.
But, even when he exerts this discretionary power, he does not really take a decision, nor
prepares, as is usually stated, the judge’s decision. Every decision concerns the causes, while the
police acts on effects, which are by definition undecidable.
The name of this undecidable element is no more today, like it was in XVII century, «raison
d’Etat», State reason: it is rather «security reasons». The Security State is a police State: but,
again, in the juridical theory, the police is a kind of black hole. All we can say is that when the so
called «Science of the police» first appears in XVIII century, the «police» is brought back to its
etymology from the Greek «politeia» and opposed as such to «politics». But it is surprising to
see that Police coincides now with the true political function, while the term politics is reserved
to the foreign policy. Thus Von Justi, in his treatise on Policey Wissenschaft, calls Politik the
relationship of a State with other States, while he calls Polizei the relationship of a State with
itself. It is worthwhile to reflect upon this definition: (I quote): «Police is the relationship of a
State with itself».
The hypothesis I would like to suggest here is that, placing itself under the sign of security,
modern State has left the domain of politics to enter a no man’s land, whose geography and
whose borders are still unknown. The Security State, whose name seems to refer to an absence
of cares (securus from sine cura) should, on the contrary, make us worry about the dangers it
involves for democracy, because in it political life has become impossible, while democracy
means precisely the possibility of a political life.
ONLY pure violence in the form of revolution is able to fix the current political
paradox.
Agamben 13 - philosopher known for work on the state of exception and homo sacer
(Giorgio; awarded the Dr. Leopold Lucas Prize, teaches at Accademia di Architettura di
Mendrisio; “For a Theory of Destituent Power;” Chronos; 11/16/2013;
http://www.chronosmag.eu/index.php/g-agamben-for-a-theory-of-destituent-power.html)
But I would like to conclude –or better to simply stop my lecture (in philosophy like in art, no
conclusion is possible, you can only abandon your work) with something which, as far as I can
see now, is perhaps the most urgent political problem. If the State we have in front of us is the
Security State I described, we have to think anew the traditional strategies of political conflicts.
What shall we do, what strategy shall we follow?
The Security paradigm implies that each dissention, each more or less violent attempt to
overhrow its order, become an opportunity to govern them in a profitable direction. This is
evident in the dialectics which binds tightly together terrorism and State in an endless vicious
spiral. Starting with French revolution, the political tradition of modernity has conceived of
radical changes in the form of a revolutionary process that acts as the pouvoir constituant, the
«constituent power» of a new institutional order. I think that we have to abandon this paradigm
and try to think something as a puissance destituante, a «purely destituent power», that cannot
be captured in the spiral of security.
It is a destituent power of this sort that Benjamin has in mind in his essay On the critique of
violence when he tries to define a pure violence which could «break the false dialectics of
lawmaking violence and law-preserving violence», an example of which is Sorel’s proletarian
general strike. «On the breaking of this cycle» he writes in the end of the essay «maintained by
mythic forms of law, on the destitution of law with all the forces on which it depends, finally
therefore on the abolition of State power, a new historical epoch is founded». While a
constituent power destroys law only to recreate it in a new form, destituent power, in so far as
it deposes once for all the law, can open a really new historical epoch.
To think such a purely destituent power is not an easy task. Benjamin wrote once that nothing is
so anarchical as the bourgeois order. In the same sense, Pasolini in his last movie has one of the
four Salò masters saying to their slaves: «true anarchy is the anarchy of power». It is precisely
because power constitutes itself through the inclusion and the capture of anarchy and anomy,
that it is so difficult to have an immediate access to these dimensions, it is so hard to think today
something as a true anarchy or a true anomy. I think that a praxis which would succeed in
exposing clearly the anarchy and the anomy captured in the Security government technologies
could act as a purely destituent power. A really new political dimension becomes possible only
when we grasp and depose the anarchy and the anomy of power. But this is not only a
theoretical task: it means first of all the rediscovery of a form-of-life, the access to a new figure
of that political life whose memory the Security State tries at any price to cancel.
The only way to stop sovereign violence is to move the politics away from the
distinction of bare or naked life.
Edkins and Pin-Fat 05. Jenny Edkins, professor of international politics at Prifysgol
Aberystwyth University (in Wales) and Veronique Pin-Fat, senior lecturer in politics at
Manchester Universit, “Through the Wire: Relations of Power and Relations of Violence,”
Millennium - Journal of International Studies 2005, PG 8)
In Agamben’s analysis of sovereign power, the concentration camp is the ultimate expression
of the sovereign exception and the arena where all life becomes nothing but bare life, life
included by its exclusion: Inasmuch as its inhabitants have been stripped of every political
status and reduced completely to naked life , the camp is also the most absolute biopolitical
space that has ever been realised – a space in which power confronts nothing other than pure
biological life without any mediation. The camp is the paradigm itself of political space at
the point in which politics becomes biopolitics and the homo sacer becomes
indistinguishable from the citizen. 31 In modern biopolitics, Agamben argues, the zone of
indistinction exemplified in the camp is no longer localised and the state of exception
becomes the rule. The birth of the camp signals the point at which ‘the political system of the
modern nation state ... enters into lasting crisis, and the State decides to assume directly the
care of the nation’s biological life’ .32 Bare life becomes the technologised subject of
administration, governance and discipline, and political life disappear s: ‘The camp, which is
now securely lodged within the city’s interior, is the new biopolitical nomos of the
planet’.33This leads him to the question with which we began this section: ‘Is today a life of
power (potenza) available?’.34 For Agamben, such a life is not possible within present forms
of sovereign power and their reliance on the division of pure living itself into forms of life. A
life of power, which for Agamben is ‘a political life’, would mean an exodus from sovereign
power, a non-statist politics, and ‘the emancipation from such a division’.35 It would entail
‘something like a form-of-life, a life for which living itself would be at stake in its own living’.36
He goes on to elaborate what he means by this: ‘ Only if I am not already and solely enacted,
but rather delivered to a possibility and a power [potenza] ... only then a form of life can
become, in its own factness and thingness, form-of-life, in which it is never possible to isolate
something like naked life’. 37 When Agamben asks the question ‘Is today a life of power
available?’ the Italian term he uses for power is potenza, which, as his translator notes, ‘can
often resonate with implications of potentiality as well as with decentralised or mass
conceptions of force and strength’.38 In the phrase ‘sovereign power’ he uses the different
term, potere, which ‘refers to the might or authority of an already structured and centralised
capacity, often an institutionalised apparatus such as the State’.39 It is potere or sovereign
power that ‘ founds itself ... on the separation of a sphere of naked life from the context of
the forms of life ’.40 Form-of-life , a life in which something like naked life cannot be
separated, is a life of power as potenza. Significantly, Foucault’s notion of relations of power
contains within it a sense of potentiality or possibility comparable to potenza. As we have seen,
freedom and resistance are a central part of Foucauldian power relations. A power relation
‘operates on the field of possibilities in which the behaviour of active subjects is able to inscribe
itself. It is a set of actions on possible actions’.41 Power as potenza in Agamben is the realm of
politics, or what we will call later properly political power relations.
The alternative is the refusal to draw lines of the sovreign exception- the
division of those with and without “political life”.
Jenny Edkins, professor of international politics at Prifysgol Aberystwyth University (in Wales)
and Veronique Pin-Fat, senior lecturer in politics at Manchester Universit, “Through the Wire:
Relations of Power and Relations of Violence,” Millennium - Journal of International Studies
2005, PG 14-16)
One potential form of challenge to sovereign power cons is ts of a refusal to draw any lines
between zoe- and bios , inside and outside.59 As we have shown, sovereign power does not
involve a power relation in Foucauldian terms. It is more appropriately considered to have
become a form of governance or technique of administration through relationships of
violence that reduce political subjects to mere bare or naked life . In asking for a refusal to
draw lines as a possibility of challenge, then, we are not asking for the elimination of power
relations and consequently, we are not asking for the erasure of the possibility of a mode of
political being that is empowered and empowering, is free and that speaks: quite the
opposite. Following Agamben, we are suggesting that it is only through a refusal to draw any
lines at all between forms of life (and indeed, nothing less will do) that sovereign power as a
form of violence can be contested and a properly political power relation (a life of power as
potenza) reinstated . We could call this challenging the logic of sovereign power through
refusal . Our argument is that we can evade sovereign power and reinstate a form of power
relation by contesting sovereign power’s assumption of the right to draw lines, that is , by
contesting the sovereign ban. Any other challenge always inevitably remains within this
relationship of violence. To move outside it (and return to a power relation) we need not only
to contest its right to draw lines in particular places, but also to resist the call to draw any lines
of the sort sovereign power demands. The grammar of sovereign power cannot be resisted
by challenging or fighting over where the lines are drawn. Whilst, of course, this is a strategy
that can be deployed, it is not a challenge to sovereign power per se as it still tacitly or even
explicitly accepts that lines must be drawn somewhere (and preferably more inclusively).
Although such strategies contest the violence of sovereign power’s drawing of a particular
line, they risk replicating such violence in demanding the line be drawn differently . This is
because such forms of challenge fail to refuse sovereign power’s line-drawing ‘ethos’, an
ethos which, as Agamben points out, renders us all now homines sacri or bare life. Taking
Agamben’s conclusion on board, we now turn to look at how the assumption of bare life can
produce forms of challenge. Agamben puts it in terms of a transformation:This biopolitical body
that is bare life must itself instead be transformed into the site for the constitution and
installation of a form of life that is wholly exhausted in bare life and a bios that is only its own
zoe-.... If we give the name form-of-life to this being that is only its own bare existence and to
this life that, being its own form, remains inseparable from it we will witness the emergence
of a field of research beyond the terrain defined by the intersection of politics and
philosophy, medico-biological sciences and jurisprudence. 60
American Law Link
The state of exception is already the norm in America – empirics prove the plan
will be suspended
Agamben 05, Giorgio Agamben, professor of aesthetics at the University of Verona and
author of ten books, titled: State Of Exception, pages 19-22
The place—both logical and pragmatic—of a theory of the state of exception in the American constitution is in
the dialectic between the powers of the president and those of Congress. This dialectic has
taken shape historically (and in an exemplary way already beginning with the Civil War) as a conflict over supreme
authority in an emergency situation; or, in Schmittian terms (and this is surely significant in a country considered to be
the cradle of democracy), as a conflict over sovereign decision. The textual basis of the conflict lies first of all in
Article 1 of the constitution, which establishes that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may
require it” but does not specify which authority has the jurisdiction to de- cide on the
suspension (even though prevailing opinion and the context of the passage itself lead one to assume that the clause is directed
at Congress and not the president). The second point of conflict lies in the relation between another
passage of Article 1 (which declares that the power to declare war and to raise and support the
army and navy rests with Congress) and Article 2, which states that “[t]he President shall be
Commander in Chief of the Army and Navy of the United States.” Both of these problems reach
their critical threshold with the Civil War (1861–1865). Acting counter to the text of Article 1, on
April 15, 1861, Lincoln de- creed that an army of seventy-five thousand men was to be raised and convened a
special session of Congress for July 4. In the ten weeks that passed between April 15 and July 4, Lincoln in
fact acted as an absolute dictator (for this reason, in his book Dictatorship, Schmitt can refer to it as a perfect example
of com- missarial dictatorship: see 1921, 136). On April 27, with a technically even more significant decision, he authorized
the General in Chief of the Army to sus- pend the writ of habeas corpus whenever he deemed it
necessary along military lines between Washington and Philadelphia, where there had been disturbances. Furthermore,
the president’s autonomy in deciding on extraordinary measures continued even after Congress was convened (thus, on February
14, 1862, Lincoln
imposed censorship of the mail and authorized the arrest and detention in
military prisons of persons suspected of “disloyal and treasonable practices”). In the speech he
delivered to Congress when it was finally convened on July 4, the president openly justified his actions as the
holder of a supreme power to violate the constitution in a situation of necessity. “Whether strictly legal or not,”
he declared, the measures he had adopted had been taken “under what appeared to be a popular demand and a public necessity” in
the certainty that Congress would ratify them. They were based on the conviction that even fundamental law could be violated if the
very existence of the union and the juridical order were at stake (“Are all the laws but one to go unexecuted, and the Government
itself go to pieces lest that one be violated?” See Rossiter 1948, 229). It is obvious that in a wartime situation the conflict between
the president and Congress is essentially theoretical. The fact is that although Congress was perfectly aware that the constitutional
jurisdictions had been transgressed, it could do nothing but ratify the actions of the president, as it did on August 6, 1861.
Strengthened by this approval, on September 22, 1862, the president pro- claimed the emancipation of the slaves on his authority
alone and, two days later, generalized the state of exception throughout the entire territory of the United States, authorizing the
arrest and trial before courts martial of “all Rebels and Insurgents, their aiders and abettors within the United States, and all persons
discouraging volunteer enlistments, resisting militia drafts, or guilty of any dis- loyal practice, affording aid and comfort to Rebels
against the authority of the United States.” By this point, the president of the United States was the holder of the sovereign decision
on the state of exception. According to American historians, during
World War One President Wood- row Wilson
personally assumed even broader powers than those Abraham Lincoln had claimed. It is, however,
necessary to specify that instead of ignoring Congress, as Lincoln had done, Wilson preferred each time to have the powers in
question delegated to him by Congress. In this regard, his practice of gov- ernment is closer to the one that would prevail in Europe
in the same years, or to the current one, which instead of declaring the state of exception prefers to have exceptional laws issued. In
any case, from
1917 to 1918, Congress approved a series of acts (from the Espionage Act of June 1917 to the
granted the president complete control over the administration of the
Overman Act of May 1918) that
country and not only prohibited disloyal activities (such as collaboration with the enemy and the diffusion of false reports), but
even made it a crime to “will- fully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form
of government of the United States.” Because the sovereign power of the president is essentially grounded in the emergency linked
to a state of war, over the course of the twentieth century the metaphor of war becomes an integral part of the presidential political
vocabu- lary whenever decisions considered to be of vital importance are being imposed. Thus, in 1933, Franklin D. Roosevelt was
able to assume extraordinary powers to cope with the Great Depression by presenting his actions as those of a commander during a military campaign: I assume unhesitatingly the leadership of this great army of our people dedi- cated to a
disciplined attack upon our common problems. . . . I am prepared under my constitutional duty to recommend the measures that a
stricken Nation in the midst of a stricken world may require. . . . But in the event that the Congress shall fail to take [the necessary
measures] and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then
confront me. I shall ask the Congress for the one re- maining instrument to meet the crisis—broad Executive power to wage war
against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe. (Roosevelt 1938,
14–15) It is well not to forget that, from the constitutional standpoint, the New Deal was realized by delegating to the president
(through a series of statutes culmi- nating in the National Recovery Act of June 16, 1933) an unlimited power to regulate and control
every aspect of the economic life of the country—a fact that is in perfect conformity with the already mentioned parallelism
between military and economic emergencies that characterizes the politics of the twen- tieth century. The outbreak of World War
Two extended these powers with the proclama- tion of a “limited” national emergency on September 8, 1939, which became unlimited on May 27, 1941. On September 7, 1942, while requesting that Congress repeal a law concerning economic matters, the
president renewed his claim to sovereign powers during the emergency: “In the event that the Congress should fail to act, and act
adequately, I shall accept the responsibility, and I will act. . . . The American people can . . . be sure that I shall not hesitate to use
every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such
defeat” (Rossiter 1948, 268–69). The
most spectacular violation of civil rights (all the more serious because of its
the internment of sev- enty thousand American
citizens of Japanese descent who resided on the West Coast (along with forty thousand Japanese citizens who
lived and worked there). President Bush’s decision to refer to himself constantly as the “Comman- der
in Chief of the Army” after September 11, 2001, must be considered in the context of this
presidential claim to sovereign powers in emergency situations. If, as we have seen, the assumption of this title
solely racial motivation) occurred on February 19, 1942, with
entails a direct reference to the state of exception, then Bush is attempting to produce a situation in which the emergency becomes
the rule, and the
very distinction between peace and war (and between foreign and civil war)
becomes impossible.
The problem with the US Constitution is that is allows the president to create a
state of exception
Agamben, 2004
Giorgio, excerpt from State of Exception, ebook excerpt translated by Kevin Attell, copyright
2005, University of Chicago Press, http://www.press.uchicago.edu/Misc/Chicago/009254.html
[[[The textual basis of the conflict lies first of all in Article 1 of the constitution, which
establishes that "the Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require it" but does not specify
which authority has the jurisdiction to decide on the suspension (even though prevailing
opinion and the context of the passage itself lead one to assume that the clause is directed at
Congress and not the president). The second point of conflict lies in the relation between
another passage of Article 1 (which declares that the power to declare war and to raise and
support the army and navy rests with Congress) and Article 2, which states that "the President
shall be Commander in Chief of the Army and Navy of the United States."]]]
Lincoln suspended habeas corpus to protect America, which is a case of law
destruction to preserve law
Agamben, 2004
Giorgio, excerpt from State of Exception, ebook excerpt translated by Kevin Attell, copyright
2005, University of Chicago Press, http://www.press.uchicago.edu/Misc/Chicago/009254.html
Both of these problems reach their critical threshold with the Civil War (1861–1865). Acting
counter to the text of Article 1, on April 15, 1861, Lincoln decreed that an army of seventy-five
thousand men was to be raised and convened a special session of Congress for July 4. In the
ten weeks that passed between April 15 and July 4, Lincoln in fact acted as an absolute
dictator (for this reason, in his book Dictatorship, Schmitt can refer to it as a perfect example of
commissarial dictatorship. On April 27, with a technically even more significant decision, he
authorized the General in Chief of the Army to suspend the writ of habeas corpus whenever
he deemed it necessary along the military line between Washington and Philadelphia, where
there had been disturbances. Furthermore, the president's autonomy in deciding on
extraordinary measures continued even after Congress was convened (thus, on February 14,
1862, Lincoln imposed censorship of the mail and authorized the arrest and detention in military
prisons of persons suspected of "disloyal and treasonable practices").
In the speech he delivered to Congress when it was finally convened on July 4, the president
openly justified his actions as the holder of a supreme power to violate the constitution in a
situation of necessity. " Whether strictly legal or not," he declared, the measures he had
adopted had been taken "under what appeared to be a popular demand and a public
necessity" in the certainty that Congress would ratify them. They were based on the
conviction that even fundamental law could be violated if the very existence of the union and
the juridical order were at stake ("Are all the laws but one to go unexecuted, and the
Government itself go to pieces lest that one be violated?"
It is obvious that in a wartime situation the conflict between the president and Congress is
essentially theoretical. The fact is that although Congress was perfectly aware that the
constitutional jurisdictions had been transgressed, it could do nothing but ratify the actions of
the president, as it did on August 6, 1861. Strengthened by this approval, on September 22,
1862, the president proclaimed the emancipation of the slaves on his authority alone and, two
days later, generalized the state of exception throughout the entire territory of the United
States, authorizing the arrest and trial before courts martial of "all Rebels and Insurgents, their
aiders and abettors within the United States, and all persons discouraging volunteer
enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort
to Rebels against the authority of the United States." By this point, the president of the United
States was the holder of the sovereign decision on the state of exception.
Woodrow Wilson essentially destroyed the first amendment to “protect
America”
Agamben, 2004
Giorgio, excerpt from State of Exception, ebook excerpt translated by Kevin Attell, copyright
2005, University of Chicago Press, http://www.press.uchicago.edu/Misc/Chicago/009254.html
[[[According to American historians, during World War One President Woodrow Wilson
personally assumed even broader powers than those Abraham Lincoln had claimed. It is,
however, necessary to specify that instead of ignoring Congress, as Lincoln had done, Wilson
preferred each time to have the powers in question delegated to him by Congress. In this
regard, his practice of government is closer to the one that would prevail in Europe in the same
years, or to the current one, which instead of declaring the state of exception prefers to have
exceptional laws issued. In any case, from 1917 to 1918, Congress approved a series of acts
(from the Espionage Act of June 1917 to the Overman Act of May 1918) that granted the
president complete control over the administration of the country and not only prohibited
disloyal activities (such as collaboration with the enemy and the diffusion of false reports), but
even made it a crime to "willfully utter, print, write, or publish any disloyal, profane,
scurrilous, or abusive language about the form of government of the United States."]]]
Franklin D Roosevelt denied Japanese American the rights to liberty and the
pursuit of happiness to protect “America”
Agamben, 2004
Giorgio, excerpt from State of Exception, ebook excerpt translated by Kevin Attell, copyright
2005, University of Chicago Press, http://www.press.uchicago.edu/Misc/Chicago/009254.html
[[[Because the sovereign power of the president is essentially grounded in the emergency linked
to a state of war, over the course of the twentieth century the metaphor of war becomes an
integral part of the presidential political vocabulary whenever decisions considered to be of vital
importance are being imposed. Thus, in 1933, Franklin D. Roosevelt was able to assume
extraordinary powers to cope with the Great Depression by presenting his actions as those of
a commander during a military campaign:
I assume unhesitatingly the leadership of this great army of our people dedicated to a
disciplined attack upon our common problems.…I am prepared under my constitutional duty to
recommend the measures that a stricken Nation in the midst of a stricken world may
require.…But in the event that the Congress shall fail to take [the necessary measures] and in
the event that the national emergency is still critical, I shall not evade the clear course of duty
that will then confront me. I shall ask the Congress for the one remaining instrument to meet
the crisis—broad Executive power to wage war against the emergency, as great as the power
that would be given to me if we were in fact invaded by a foreign foe.
It is well not to forget that, from the constitutional standpoint, the New Deal was realized by
delegating to the president (through a series of statutes culminating in the National Recovery
Act of June 16, 1933) an unlimited power to regulate and control every aspect of the economic
life of the country—a fact that is in perfect conformity with the already mentioned parallelism
between military and economic emergencies that characterizes the politics of the twentieth
century.
The outbreak of World War Two extended these powers with the proclamation of a "limited"
national emergency on September 8, 1939, which became unlimited on May 27, 1941. On
September 7, 1942, while requesting that Congress repeal a law concerning economic matters,
the president renewed his claim to sovereign powers during the emergency: "In the event that
the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will
act.…The American people can…be sure that I shall not hesitate to use every power vested in me
to accomplish the defeat of our enemies in any part of the world where our own safety
demands such defeat." The most spectacular violation of civil rights (all the more serious
because of its solely racial motivation) occurred on February 19, 1942, with the internment of
seventy thousand American citizens of Japanese descent who resided on the West Coast
(along with forty thousand Japanese citizens who lived and worked there).]]]
Empirics prove: after the event of a terrorist attack, laws are ignored
Agamben, 2004
Giorgio, excerpt from State of Exception, ebook excerpt translated by Kevin Attell, copyright
2005, University of Chicago Press, http://www.press.uchicago.edu/Misc/Chicago/009254.html
President Bush's decision to refer to himself constantly as the "Commander in Chief of the
Army" after September 11, 2001, must be considered in the context of this presidential claim
to sovereign powers in emergency situations. If, as we have seen, the assumption of this title
entails a direct reference to the state of exception, then Bush is attempting to produce a
situation in which the emergency becomes the rule, and the very distinction between peace
and war (and between foreign and civil war) becomes impossible.
FOR SOMEONE WHO HAS BEEN following the career of the Italian philosopher Giorgio Agamben
from the beginning — perhaps even including his cameo appearance in Pier Paolo Pasolini’s The
Gospel According to St. Matthew (1964) — his current notoriety as a political thinker might
seem surprising and even baffling. A good portion of Agamben’s early work focuses on questions
of aesthetics, and much of the rest is devoted to careful and idiosyncratic readings of major
figures in the history of philosophy. Familiarity with his most recent writing would likely increase
that puzzlement. In addition to the ongoing, overtly political Homo Sacer series — which so far
includes Homo Sacer: Sovereign Power and Bare Life (1995; translated 1998), State of
Exception (2003; translated 2005), and Remnants of Auschwitz: The Witness and the
Archive (1998; translated 2002) — he has turned his attention to a commentary on St. Paul’s
“Epistle to the Romans,” an enigmatic and fragmentary study of the relationship between the
human and the animal, and a series of investigations into the history of Christian theology.
None of this sounds particularly timely or trendy. During the Bush years, however, Agamben’s
investigations of sovereign authority, the state of emergency (or exception), and the concept of
“bare life” seemed to speak directly to the most immediate and pressing political concerns of
the day: the emergency powers claimed in the War on Terror, the fate of the “detainees” kept in
the lawless zone of Guantánamo Bay, and the general reassertion of the kind of state
sovereignty that globalization was supposed to be rendering irrelevant. Despite being
coincidentally topical, however, there is still much that is puzzling about the political works
themselves. Homo Sacer, which infamously claims that the paradigm of all modern politics is the
concentration camp, proceeds by way of an investigation of an obscure figure in Roman law —
the homo sacer (“sacred man”) who could be killed with impunity but not sacrificed — and stops
to deal with Pindar, Hölderlin, and many other unexpected figures along the way. (There are
also werewolves.) Remnants of Auschwitz focuses on the “Muselmänner,” the most degraded
and hopeless victims of the Shoah, but spends a surprising amount of space dealing with
questions of structural linguistics. State of Exception, in many ways the most straightforward of
the three Homo Sacer books, provides a history of emergency powers in the Roman and modern
world. But instead of making the seemingly obvious claim that we should stop relying on
emergency powers and stick with normal legal structures, Agamben hints at a radically different
solution that he believes to be implicit in a Kafka story in which Alexander the Great’s horse
Bucephalus becomes a lawyer.
What is going on here? That was certainly my question when I first read Homo Sacer, and in my
stubborn determination to figure out the answer, I wound up reading the majority of Agamben’s
works, and even translating some of them. It’s on the occasion of the publication of two of my
translations — The Highest Poverty: Monastic Rules and Form-of-Life, and Opus Dei: An
Archeology of Duty (Stanford UP, 2013) — that I wrote this essay, which shares some of the
patterns I picked up along the way.
I.
A striking feature of Agamben’s work is its tendency to leap immediately from the tiniest detail
to the broadest possible generalization. In Homo Sacer, for instance, we learn that the entire
history of Western political thought was always heading toward the horrors of totalitarianism,
as we can tell by taking a look at an obscure corner of ancient Roman law. Similarly, while his
late works boast increasingly large-scale ambitions, they are nonetheless written in a
fragmentary form and always make room for digressions and asides (often in the form of notes
inserted right into the middle of the text, introduced by the Hebrew letter "aleph").
These idiosyncratic traits can, I believe, be traced back to Agamben’s two most significant
influences: Walter Benjamin and Martin Heidegger. Agamben served as editor of the Italian
edition of Benjamin’s complete works, which consist primarily of dense essays and cryptic
fragments, the majority of them not published during Benjamin’s lifetime. It’s clear that
Agamben admires the compression and vast interdisciplinary range of Benjamin’s work and
aspires to similar effects in his own writing. The link to Heidegger is perhaps even closer: as a
student in one of Heidegger’s postwar seminars, Agamben picked up the great philosopher’s
ambition to provide an overarching account of the history of the West, and use that history to
shed light on the contemporary world. From both Heidegger and Benjamin, Agamben inherits,
on the one hand, a careful attention to philological detail and questions of translation, and, on
the other, a marked tendency toward conceptual abstraction. (Heidegger, for instance, spent his
entire career investigating the concept of “Being,” while some of Benjamin’s most famous
essays are devoted to the broadest possible topics, such as violence, language, or history.)
It is not only Agamben’s methods that stem from these two thinkers, but often his path of
investigation as well. The entire Homo Sacer series can be read as a follow-up on Benjamin’s
suggestion, in his Critique of Violence (1921), that someone really ought to look into the origin
of the concept of the sacredness of human life. His study of animality in The Open is, by
contrast, centered on one of Heidegger’s writings on that question, and many of the chapters
expand on Heidegger’s own key references. Agamben’s work can be read in part as a series of
footnotes to the two great thinkers who have most inspired him, even if very few of his writings
presuppose detailed knowledge of either.
II.
At this point, one could rightly ask what in Agamben’s work is his own — aside, of course, from
the aleph-notes. Some of his originality can be traced to the way he brings together Heidegger
and Benjamin, along with other major figures such as Michel Foucault, Carl Schmitt, Hannah
Arendt, and Aristotle. Leaving aside questions of intellectual genealogy, however, much of what
is most distinctive about Agamben’s style of thought comes from his love of paradox and
contradiction. For instance, following up Benjamin’s research agenda, he traces the notion of
the sacredness of human life back to the homo sacer — an origin that, far from indicating that
human life has exceptional and unconditional value, actually refers to a form of human life that
has been deprived of all legal protection. And instead of marveling at how much our concept of
the sacredness of human life has changed, he argues that the old meaning still stands: the state
that respects the sacredness of human life is actually a machine that threatens to turn every one
of us into a defenseless homo sacer.
This love of paradox is not simply a rhetorical tic. It deeply shapes Agamben’s political analysis,
which seeks out places where our accustomed categories begin to overlap and break down. For
example, he is fascinated with the figure of the sovereign ruler who can suspend the law,
because of what he calls “the paradox of sovereignty,” namely “the fact that the sovereign is, at
the same time, outside and inside the juridical order.” On the one hand, the sovereign who
declares a state of emergency can freely violate the letter of the law; on the other, his actions
are legitimated by reference to the law and (at least ideally) aim to restore the normal
conditions for the rule of law. Sovereign action in the state of emergency is thus a strange kind
of legal illegality — or is it illegal legality? A related dynamic is at work with the figure of
the homo sacer, who stands as a kind of metaphor for all people excluded from official legal
protection and reduced to a state of “bare life,” such as refugees, “enemy combatants,” and
concentration camp victims. On the one hand, they are excluded from the realm of law, but this
very exclusion is itself a legal act, indeed one of the most forceful and decisive of legal acts. Thus
the person reduced to bare life is “excluded in,” or “included out.”
The greatest contradiction of all, however, is the way that the sovereign and the homo sacer’s
respective relationships to the law — relationships of exclusive inclusion or inclusive exclusion
— overlap. On a purely formal level, the same paradoxical and contradictory relationship to the
law holds equally for the mightiest ruler as for the most desperate victim. Indeed, these two
paradoxes begin to become mirror images of each other: “At the extreme limits of the order,
the sovereign and homo sacer present two symmetrical figures that have the same structure
and are correlative: the sovereign is the one with respect to whom all men are
potentially homines sacri, and homo sacer is the one with respect to whom all men act as
sovereigns.”
Agamben believes that our political system is increasingly breaking down and that extra-legal
but legally validated emergency power is no longer the exception, but the rule. Here we might
think of the ways in which the supposed “emergency” of the War on Terror, which has now
dragged on for well over 10 years and shows no sign of ending, is used to legitimate increasingly
extreme executive powers (including, most recently, President Obama’s claim that he has the
right to assassinate US citizens suspected of terrorism without trial and on US soil). This
breakdown in legal procedure is not a moment of weakness, however, but the moment when
the law displays its power in its rawest and most deadly form. As Agamben puts it in State of
Exception, when “the state of exception […] becomes the rule, then the juridico-political system
transforms itself into a killing machine.”
Border Link
Link-The border is a permanent state of exception.
Salter, professor at the School of Political Studies, University of Ottawa, 2008. (Mark, He was the 2014
Canadian Political Science Association Teaching Excellence Prize winner. In 2007, he was the recipient of
the National Capital Educator's Award and the Excellence in Education Prize at the University of Ottawa.
In autumn 2008, he was Visiting Fellow at the Centre for Research in the Arts, Social Sciences, and
Humanities, Wolfson College, and Visiting Scholar at the Centre of International Studies at the University
of Cambridge. He is editor of "Making Things International 1" and "Making Things International 2,"
"Research Methods in Critical Security Studies" with Can E. Mutlu, "Politics at the Airport," as well as
special issues on "Border Security as Practice," "Critical Security Studies in Canada," and the Forums of
International Political Sociology. Salter is also Associate Editor of "International Political Sociology" and
"Security Dialogue." ”When the exception becomes the rule: borders, sovereignty, and citizenship,
Citizenship Studies”, Citizenship Studies. http://www.campusincamps.ps/wpcontent/uploads/2012/10/Salter-Exception-becomes-the-rule.pdf)
Provocatively argued by Agamben in Homo sacer and The State of Exception, the foundational
power of the sovereign is the ability to decide if the law applies to a situation or if the law is
held in abeyance due to an emergence or crisis. Since the sovereign power to decide is itself
prior to and outside of the law, Agamben is anxious about the expansion of executive powers
since the inauguration of the “war on terror.” The state of exception is a “zone of indistinction,
between inside and outside” where there is no difference between law and force, wherein
individuals are subject to the law but not subjects in the law (1995:181). The use of
emergency powers and the use of “ all means necessary ” in the war on terror demonstrate
that “ the state of exception tends increasingly to appear as the dominant paradigm of
government in contemporary politics” (2005:2). But, in this article, I will not be examining the
role of the USA PATRIOT Act, Guantanamo Bay, Camp X-Ray, Abu Ghraib prison, the “black sites”
in Eastern Europe, extraordinary rendition, domestic surveillance programs, or other clear
indications of the rise of executive power. Instead, I argue that the state of exception is always
already fundamental to sovereign power, and in particular that the sovereign ability to define
and limit the population is a long-standing institution of the state, intimately tied into the
notion of sovereign territoriality and the imaginary of borders implied in this conception of
bounded space. The border is a permanent state of exception. Agamben gestures towards
this: “the question of borders becomes all the more urgent” (2005:1). But, rather than the
metaphorical border between normal and exceptional, I argue that we take the material border
seriously. Wherever the border is located, however it is administered , the border has been and
continues to be an on-going state of exception, based on a prior assumption of the authority
to define a particular security/territory/population (Foucault). The decision to enter into the
sovereign compact cannot take place within that contract – it must be outside normal politics.
Agamben argues that the foundation of the polis in Hobbes’ Leviathan reveals this essential
political arrangement in the failure of the sovereign to renounce all rights, rather than the
renunciation of the right to everything which all others give up (1998:106). And yet, to
naturalize and make seamless the claim of the sovereign to rule, in order to have a clear
contract with a population, that “decision” to define the contractees must be obscured and
hidden from view. If this decision were not seen to be arbitrary and external, prior to the law,
every administrative decision becomes an issue of the founding contract. We see this
conundrum illustrated in a recent debate over Québec sovereignty. A province of Canada with a
distinct, Francophone culture, since long before Federation in 3 1867 or the repatriation of the
Constitution in 1982, Quebecers have insisted on its status as a “nation,” which demands
sovereignty. Prime Minister Trudeau, during the negotiations for the constitution, said “Si le
Canada est divisible, le Québec doit être aussi divisible.” (if Canada is divisible, so too should
Quebec be divisible).1 Some public figures argued in the recent 1995 referendum that each
municipality and community must hold a referendum – and in particular how can the
sovereignty of aboriginal communities with the Federal government be determined (treaty
process, negotiation, referenda?). When the essential contract to create Canada is questioned,
the question of the founding contract of Quebec is revealed, and every founding contract is
questioned. Manning argues that: The reliance on the linear narrative of history in the telling
of the story of “a people” results in the continuing conflation of population and territory for
the promotion of a united “national identity.” Similarly, in Quebec, we witness the
perpetuation of a myth of ethnic homogeneity as a central pillar in the quest for sovereignty
(Manning 2003: 123). I would add that this is not only connected to ideas about community and
homogeneity (and the ability of the sovereign to create, police, and protect that identity), but
also about the ability of the sovereign to inscribe a founding moment which shuts down the past
and renders primary decision out of politics (a politics of forgetting).2 All communities are
essentially undemocratic, arbitrary, and in this sense pre-political. It is the performance of the
sovereign as protector against the collapse of all community that hides the inherent violence
in this primary contract. As Agamben avers, “sovereign is…the guardian who prevents the
undecidable threshold between violence and right, nature and language, from coming to light”
(2000:113). The decision to allow entry into the political community, and to become a citizen
subject of the sovereign, must be a decision without recourse, without appeal, and without
debate. Recourse, appeal, debate – in Ranciere’s terms, “disagreement” – gives lie to the claim
to fixity and stability, upon which the claim to sovereign power is built. The constitution of the
sovereign population cannot be made democratically. In its application to the border, we would
say that the citizen gives up his/her right to freely enter the state while the sovereign does
not renounce his/her right to ban individuals from entry into the state . It is true that the
sovereign does not accept any obligation to accept (even) citizens back into the territory –
especially if the sovereign decides that the citizen constitutes a danger to the sovereign. The
sovereign contract is redrawn each time a citizen requests entry to a state, either his/her own
state or another state: “the foundation is not an event achieved once and for all but is
continually operative in the civil state in the form of the sovereign decision” (2000: 109).
Recall the form of the passport, which the state also accepts no obligation to issue even to
citizens and in particular to citizens which it considers dangerous. 3 The inscription on the
passport is a statement by a representative of the citizen’s sovereign “to request and require in
the name of the [insert sovereign] all those whom it may concern to allow the bearer to pass
freely without let or hindrance and to afford him/her every assistance and protection of which
he/she may stand in need” (Salter 2003: 3-5). Entry into a foreign state is representative of the
interaction of two sovereigns – not the traveler and any sovereign. In essence, entry into
another the jurisdiction of one’s own or another sovereign territory is a reaffirmation that the
sovereign, and not the citizen, is the seat of authority, rights, and politics. This is true even
when the decision at the border is made by a representative of the sovereign. The raw
decision to admit or expel an individual at the 4 border takes place both inside a normal
bureaucracy and outside the normal condition of politics. Butler’s argument that the state of
exception is normalized through the governmentality of bureaucracy is particularly
persuasive for everyday decisions at the border, as well as sites such as Guantanamo Bay
(2004). Part of the design of the modern and neoliberal state in all its apparatus is to hide the
functioning of raw power and internal the panoptic gaze of the state – but the border renders
this power naked. We must ask the sovereign for admittance. Even if we have a previous
contract, or can claim that we are subject to no other contract and thus suppliant ourselves,
there is no right of entry (only a right to ask). The law is always suspended at the border,
because the decision of entrance to the territory and correspondent membership in the
community is irreducible to force. As Schmitt argues, “the essence of the state’s sovereignty [is]
not the monopoly to coerce or rule, but the monopoly to decide” (1985:13). Agamben links the
state of exception with the decision to include or exclude from the law. In the construction of
the inside/outside, state/anarchy universe of political meaning, the decision to admit to the
safe haven of the domestic or expel into the dangerous world is precisely a decision to
include the subject to the law or exclude the subject from the law. Agamben says “the
relation of the exception is the relation of ban. He who has been banned is not, in fact, simply
set outside the law and made indifferent to it but rather abandoned by it, that is, exposed and
threatened on the threshold in which life and law, outside and inside, become indistinguishable”
(1995:28).4 In his writings on the ban, Agamben describes the figure of the exile as “more
original than the Schmittian opposition between friend and enemy, fellow citizen and foreigner.
The ‘estrarity’ of the person held in the sovereign ban is more intimate and primary than the
extraneousness of the foreigner” (1995:110). This is the crux of the utility of Agamben for the
study of the border: the frontier examination which polices, subjectifies, performs both the
sovereign and the citizen to him/herself, is more primary than the political relation of the
citizen/foreigner. More than the exclusion of the other, the primary political relationship is the
anxiety, the uncertainty, the constant uncertainty that pertains at the border because there is
no inside: there is no right of entry. The citizen is undone and the sovereign to ban reinscribed
at every border, in every decision. There are two weaknesses in Agamben’s analysis that the
case of the border resolves. First, Agamben fails to recognize that the border is a place where
this sovereign power to decide is exercised every day – that every decision of the border
guards is a decision to ban or to include in the law. Whether those decisions are guided by
bureaucratic procedures or administrative “thought-work,” they are outside the law (Heyman
2001). The legal recognition of administrative discretion is the bureaucratic fig leaf of this
executive power. This discretionary admit/expel decision is entirely extra-judicial. No law or set
of policies can possibly describe all the individuals or cases that can be admitted or grounds for
expulsion. This is not to dispute the contention that the front-line workers perceive themselves
to be constrained by risk categories and security algorithms (Amoore 2006; Bigo and Guild
2006). Rather, it is to say these policies, procedures, and practices rely on the discretion: the
moment of interpretation of a personal narrative by an agent of the state. This is explained
further in the next section on the performativity of borders. There is no way to adjudicate the
truth-claims of the traveler that can be described: the border guard relies on his/her judgment
and experience (which has been supported by court decisions in U.S., Canada, and Australia).5
While this is called administrative discretion within the bureaucracy and public administration
literature, it is a decision that is not grounded in fact, but solely in 5 the power to decide. The
decision of exile is irreducible – it is the decision that the sovereign owes that individual no
hospitality, no protection, no law, only violence. And, all travelers pass through that moment
of sovereign isolation, when, during the border examination, we perform both our citizenship
and the state’s sovereignty. Second, worse than simply neglecting the border as a productive
example, Agamben imagines away the space of the border in this formulation of the
spacelessness of the limit of the community. The limit is not simply the metaphorical “wolfman,” and this distracts from the material practices of exclusion at the border. The border is a
space of indistinction in which citizens, foreigners, exiles, refugee and asylum seekers are all
held in an extra-political nowhere while the sovereign exercises a decision. I want to argue
strongly that the space of decision is not “no-place” or nowhere. Borders, even when they are
virtual or delocalized, take place within a particular space. Löfgren uses the term “pedagogy of
space” to direct our attention to the ways in which the borderscape is arranged against a
background of monumental buildings or nondescript barracks with endless corridors, warning
signs and surveillance techniques, the manners in which movements across borders are
dramatized into rituals of passage, stages and shops, and finally the actual choreographing of
bodies and their modes of movements (Löfgren, 1999: 25). There is something unique about the
border, which marks it as different from the “borderland.” As Rumford argues, “the networking
of borders and their diffusion throughout society have led to a renewed importance for the land
border, at least in particular instances” (2006: 158). When the power to admit/exclude is
exercised, that place becomes the limit of politics. While I am not denying that dispersed and
preemptive techniques of border policing are important (Wilson and Weber forthcoming,
Walters 2006, Salter 2007), I would argue that the state of exception at the border exists only at
that examination (indeed wherever and whenever that examination takes place). Thus, while we
must take Balibar’s injunction that borders are “polysemic” – that they are experienced
differently by different classes of people, it is my core argument that the moment of alienation,
the moment of examination and terror, is inherent in the border (2002: 81). In some senses the
degree to which the border is polysemic is the degree to which the nature of the border crossing
is recognized as exceptional: refugees and asylum claimants need no explanation of the border
as a state of exception, whereas those “kinetic elite” that pass across borders easily may need
more.6 It is important to analyze the moment of decision at the border, even as the border and
the decision are becoming more diffuse and dispersed. In the next section, I want to engage this
nexus of decision and borders.
Law Link
Law is violence
Auerbach, submitted paper to “After 1968”, 2007
Anthony, presented a paper to the seminar After 1968, led by Katja Diefenbach, “Remarks on
Walter Benjamin’s Critique of Violence Remarks on Walter Benjamin’s Critique of Violence”,
Anthony Auerbach, http://aauerbach.info/research/urban/benjamin_violence.html
[[[Benjamin’s critique thus neither advocates, condones nor rejects violence, but begins with a
fundamental assessment of the paralysis of the dominant trends in the discussion of violence,
pointing out how opposing sides of the debate both lead to contradictions because they share
terms which are accepted as axiomatic, but which are not in fact independent. Benjamin argues
that it is not possible to separate violence from law; that all violence is either law-making or
law-preserving; that all law, however remote it may seem from its origins and from the forces
which maintain it, is latent violence. Therefore it is violence itself which decides what violence
is justifiable for what ends. This circle defines violence self-evidently as a natural means of
achieving natural or legal ends.
The power established by law-making violence threatens the law-breaker with law-preserving
violence. But this threat is subject to fate, because the criminal might not get caught, and his or
her ‘violation’ of the law threatens to become in turn a law-making violence and thus a
challenge to existing power. However, if it is not just a matter of getting away with it at an
individual level and the challenge to existing power is self-conscious and victorious — as in a
political revolution — then the contest can only begin again. Benjamin characterises this as a
mythical cycle bound to endless repetition like the mythical punishments — or perhaps bound
to violent tautology as in Kafka’s penal colony where the punishment consists in the mechanical
inscription of the law on the body of the guilty victim.]]]
These are the cycles of repetition which constitute history as a series of disasters prompted by
fate and which at all costs must be stopped. Here, what is at stake in philosophical history
becomes a personal risk. In ‘Critique of Violence’ Benjamin proposes what he calls ‘pure means’,
that is, means without ends. For it is the logic of ends which powers the mythical machine.
Benjamin acknowledges possible forms of non-violent resolution of potential conflicts between
people, but these are immaterial because the are not legal, and as soon as they would be
codified by legal contract or treaty, would again be subject to force.
Benjamin locates his answer to such insoluble problems in the crossing of the idea of a
‘proletarian general strike’ which he gets from Sorel and the idea of ‘divine violence’. I’ll come to
divine violence in a moment. First, I think it would be a mistake to put too much emphasis on
‘proletarian’ in Benjamin’s use of the term and thus lend it a more direct relation to Marx that it
really has. What is important for Benjamin is not the proletarian as such but the distinction Sorel
makes between what he called a ‘proletarian general strike’ and a ‘political general strike’, the
latter being a form of violence intended to extort concessions for workers from the bosses, but
without fundamentally changing the relationship between them. The hypothetical proletarian
general strike on the other hand makes no demands other than the complete transformation of
social relations and of work itself. It announces only the intention of abolishing the state and its
powers, not of usurping them. Benjamin regards this strike as ‘pure means’ and therefore not
violent, even though the strike action itself (that is, not working) is the same as a violent
extortionate strike. It is not violent because its ends are, at least from the point of view of a
pragmatist, radically senseless, unreasonable and extravagant. Its only intention is nonparticipation in the logic of ends and means and a refusal of mythical imperatives. This intention
is perhaps the seed of its metaphysical failure, certainly enough to provoke violent suppression
by existing powers. Clearly, this strike signals a utopian ambition or messianic hope which
Benjamin might share with Marx.
Benjamin’s messianism consists in the demand that everything must be different, and moreover
that there is work for him personally to do in bringing about this transfiguration. (That is, not
just waiting and hoping.) This is what resonates in Benjamin’s thought with the Jewish messianic
tradition, although that doesn’t necessarily authorise a Talmudic approach to Benjamin’s text.
Indeed, caution is required in dealing with Benjamin’s theology. The divine, in ‘Critique of
Violence’, is everything which stands in absolute opposition to the mythical: ‘Just as in all
spheres God opposes myth, mythical violence is confronted by the divine. [...] If mythical
violence is law-making, divine violence is law-destroying.’ (150). I might add: this also is myth.
Turning now to the situatedness of Benjamin’s meditation, it would be nice to be able to give
you clear and concise overview of the political and social conditions in which Benjamin wrote.
Perhaps at least as instructive as we go on to discuss recent interpretations of ‘Critique of
Violence’ might be to consider, in contrast, our situatedness as readers. Where we are today, in
a peaceful Europe, we have little reason to fear a general mobilisation to war, an outbreak of
proletarian revolution or class conflict. While organised labour threatens no more than
occasional inconvenience, we have much to benefit from the state’s organisation of
unemployment (not to mention the decimation of manufacturing industry, informalisation of
labour etc.), including the expansion and extension of higher education as embodied by the Jan
van Eyck Academie. We are hardly concerned with anti-Semitism, which has gone out of fashion
amongst our class besides being officially repressed along with the consciousness of the
destruction of European Jewry which began not long after Benjamin wrote. We experience
prejudice mainly as privilege and consider our protection from racist violence and criminality in
general as a right.
The war supposedly ‘to end all wars’ which ended in 1918 left Germany in a state of political
confusion and violence which we would sooner associate with present-day Iraq than modern
Europe. But it isn’t the parallel with another state which has recently suffered a military defeat,
mass-demobilisation and the deposition of an autocratic ruler which matters. The question is,
what is the possible relation between the abstract considerations of violence — with their
legendary exemplars — and the reference Benjamin makes to ‘contemporary European
conditions’ (135) — which would have needed no illustration in 1921.
Benjamin was not alone in perceiving a historic chance when the ancien régime quit the scene.
The Emperor abdicated on 9 November 1918, when revolution threatened to succeed mutiny.
Within hours, two republics were declared, bringing the split over support for the war which had
divided German socialists in 1914 into an open, violent contest for the state. In an attempt to
forestall the revolutionary forces which might have been stirred by the intended announcement
of a constitutional monarchy, and to secure the succession of the SPD, Philipp Scheidemann
declared the first German republic from the balcony of the Reichstag. This half-hearted republic
was Scheidemann’s own initiative, but could not be revoked. Karl Liebknecht meanwhile
proclaimed a ‘free socialist republic’ from the balcony of the Royal Palace itself and pledged
revolution. The showdown came in January 1919 with the so-called Spartacist Uprising, which
proceeded, with KPD and USPD backing, from the occupation of buildings by workers to mass
demonstrations and general strike. Without a clear plan, this revolution failed because of
disputes among the leadership concerning the use of violence and ultimately because the
workers were no match for the paramilitary forces unleashed to crush them. The government
deployed Freikorps troops mustered by former army staff to suppress communist uprisings
throughout Germany. The Freikorps have been variously described as private armies recruited
by former generals, anti-republican paramilitary organisations, freelance right-wing militias,
gangsters of the extreme Right, and, the men who could not be ‘debrutalised’ after the war
(according to Hermann Göring). They carried out their (quasi-police) work with enthusiasm and
savagery and without effective political control. Famously responsible for the abduction, torture
and murder of Liebknecht and Rosa Luxemburg following the failed January Revolution — a
failure still celebrated in Berlin today — the Freikorps had a hand in hundreds political murders
perpetrated without fear of the law. In contrast, left-wing militants were pursued and severely
punished by the judicial authorities as well as by right-wing thugs.
The SPD-led government signed Treaty of Versailles and thus got the blame not only for the
onerous and humiliating terms of the treaty, but for Germany’s defeat itself, which
conservatives and militarists (who had started and lost the war) attributed to a ‘stab in the
back’. The government had no power to disband the Freikorps militias as the peace treaty
required and indeed still relied on them to repress left-wing agitation. In 1920 the Freikorps
staged its own coup d’état — the so-called Kapp Putsch — which, when the regular army
refused to intervene, was answered by a general strike such as the SPD had failed to call in 1914.
Walther von Lüttwitz’s Marinebrigade Ehrhardt which was the force behind the coup withdrew
from Berlin (apparently leaving a bloody wake) and was nominally dissolved. Freikorps militias
however continued to be active in suppressing left-wing activities both on behalf of the
government and on their own initiative. Many former Freikorps soldiers graduated to the Nazi
SA, which, though officially formed in 1921, has its roots in the reform of the Freikorps.
To this outline of major trends in political violence between 1918 and 1921 when Benjamin
wrote his ‘Critique’ could be added snapshots of economic insecurity resulting from blockade,
unemployment and the beginnings of hyper-inflation which threatened workers and the middleclasses equally. In the absence or crisis of legitimate authority and in the face of opportunity —
for some — and poverty and hunger for many, non-political violence and criminality flourished.
This was reflected at the extremes in the popularity of lurid cultural expressions or celebrations
of violence — often with sadistic and sexualised overtones — and in cases of true-life Sweeny
Todds.
Arguably, the confusion Benjamin perceived in contemporary conceptions of violence (whose
ramifications threatened him personally) has its roots in Romanticism. Resistance to
Romanticism is the oblique polemical force of ‘Critique of Violence’, for it is Romanticism which
unites the failure of revolutions with the cult of death in a repetitious cycle without even
dialectical hope. The Romantic revolutionary’s dreams are fulfilled in martyrdom while the cult
of death demands sacrifice, not transformation. The failure of revolution is required and
celebrated by the cult of death whose hunger for victims is attested by the empty tombs which
punctuate the urban landscape of Berlin today.
The sovereign has total control of the law, and decides when to become the
sovereign exception
Mills, author, 2008
Catherine, Catherine Mills is the author of many books, including “Futures of Reproduction:
Bioethics and Biopolitics” and “Lured into Dawn”, 2008. Online book, page 61, “Philosophy of
Agamben”. Acumen Publishing, database: ProQuest ebrary.
The starting point for Agamben’s discussion of biopolitics in Homo Sacer is the
apparent paradox of sovereignty, wherein the sovereign is simultaneously inside and outside
the juridical order, a situation encapsulated in the notion of the “sovereign exception”. Taking
up Carl Schmitt’s decisionistic thesis that the “sovereign is he who decides on the exception”, 5
Agamben argues that what is at stake in the state of exception is the very possibility of
juridical rule and the meaning of state authority. According to Schmitt, in deciding on the
state of exception – a process in which the sovereign both includes and excludes itself from
the purview of law – “the sovereign ‘creates and guarantees the situation’ that the law needs
for its own validity” (HS: 17). He argues that since the exception cannot be codified in the
established order, a true decision that does not rest on a pre-existent norm or rule is required in
order to determine whether it is an exception and, thus, whether the rule applies to it.
Sovereignty resides in this decision on what constitutes public order and security, and, hence,
whether the social order has been disturbed. He claims that “the exception is that which cannot
be subsumed; it defies general codification, but it simultaneously reveals a specifically juristic
element – the decision in absolute purity . . . Therein resides the essence of the state’s
sovereignty, which must be juristically defined . . . as the monopoly to decide.” 6 Further,
because the sense of the legal order rests upon the existence of the normal situation, the form
of the sovereign decision is a decision on the norm and the exception. Thus sovereignty is the
“border-line concept” of order and the exception, where the sovereign decides whether the
situation that confronts it is truly an exception or the normal order, such that sovereignty
itself becomes apparent in that decision.
Current law is in a legitimation crisis
Mills, author, 2008
Catherine, Catherine Mills is the author of many books, including “Futures of Reproduction:
Bioethics and Biopolitics” and “Lured into Dawn”, 2008. Online book, pages 97-98, “Philosophy
of Agamben”. Acumen Publishing, database: ProQuest ebrary.
[[[Agamben concludes from this etymological discussion that this indicates the
“insufficiency and opacity” of every ethical doctrine that is conceptually contaminated by the
law (ibid.). But the missing set of premises here is just what is wrong with the law, such that
contamination by it renders an ethical discourse obsolete or at least problematic. Here,
Agamben is presupposing the critique of law that he develops in Homo Sacer and elsewhere. In
this, he argues that law in the modern age has entered into a legitimation crisis , summed up
in the formula of being in force without significance. Thus in Homo Sacer, he writes
All societies and all cultures today (it does not matter whether they are democratic or
totalitarian, conservative or progressive) have entered into a legitimation crisis in which law
(we mean by this term the entire text of tradition in its regulative form, whether the Jewish
Torah or the Islamic Sharia, Christian dogma or the profane nomos) is in force as the pure
“Nothing of Revelation”. (HS: 51)
The justification for founding a non-juridical ethics lies in the claim that all law –
understood as encompassing all normative or regulative discourse – is struck by the nihilistic
crisis of being in force without significance. The sweeping breadth of Agamben’s critique
evident in this statement has, unsurprisingly, drawn its detractors. Not only does he equate all
social and cultural forms, but additionally suggests that all regulative discourse is struck by the
same nihilistic crisis. It is difficult to see how such a claim could be justified (at least beyond its
becoming a formalistic argument that then runs the risk of falling into exactly the same trap as it
diagnoses). ]]]
States of emergency destroy law
McLoughlin, Vice-Chancellor's Post-Doctoral Fellow, 2014
Daniel, Daniel is Vice-Chancellor's Post-Doctoral Fellow in the Faculty of Law at the University of
New South Wales. He holds a PhD in Philosophy from UNSW and a Bachelor of Arts/Law from
Macquarie University, 7/16/2014, online book, “Giorgio Agamben on Security, Government and
the Crisis of Law”, page 680, Routledge Publishing
[[[Giorgio Agamben’s analysis of sovereignty and the state of exception in the Homo Sacer
project has been profoundly influential as a way of theorising contemporary state violence.
The second volume of the project, State of Exception, delivers a caustic account of
contemporary constitutional democracy, arguing that the use of emergency powers over the
course of the twentieth century has radically undermined the rule of law. According to
Agamben, this crisis of legality began in the period of political instability from 1914–45, and
since that time has intensified to the point where the ‘state of exception has now reached its
maximum worldwide extension’.1 While this history focuses on the internal politics of
ostensibly liberal democratic states, the closing pages of the work also make it clear that
Agamben believes that contemporary politics is characterised by state violence that also
ignores ‘international law externally’.2]]]
NSA Link
The NSA’s use of surveillance is killing politics – the law is continuously broken
to save it.
Bauman 14 – chair of sociology at the University of Leeds (Zygmunt; Didier Bigo, Paulo
Esteves, Elspeth Guild, Vivienne Jabri, David Lyon, B.J. Walker; “After Snowden: Rethinking the
Impact of Surveillance;” International Political Sociology 8.2.121—141; Wiley Online Library;
05/29/2014; http://onlinelibrary.wiley.com/doi/10.1111/ips.12048/full)
As the Snowden news is so recent, there is little in-depth analysis of people's views on
government-led mass surveillance, let alone post-Snowden ethnographies of how people now
organize their daily lives in relation to online data. Given this, we have to fall back on broader
and longer-term probes into attitudes. Snowden's work has disclosed evidence of the extent to
which the NSA and related agencies rely on Internet companies and social media platforms such
as Facebook for access to transactional and interactional data. But for most social media users,
surveillance as hierarchical power seems to have little salience unless they live in conflict zones
or in countries with overt political repression. Much more likely, they engage in social
surveillance (Marwick 2012) where, in Foucault's “capillaries of power,” the power differentials
of everyday interactions are more immediately significant than whatever the NSA and its
cognate agencies are doing. This is not to say that awareness won't rise, particularly in relation
to global events such as the-day-we-fight-back coordinated online resistance on February 11,
2014.
The broader context of the Snowden revelations is not merely the decline of political
participation within liberal democratic states but also, as Agamben has suggested, the
breakdown of politics itself. Agamben insists that under the sign of security today's states have
shifted from politics to policing and from governing to managing—using electronically enabled
surveillance systems—thus undermining the very possibility of politics (Agamben 2013). That
this occurs simultaneously alongside the growth of all kinds of surveillance, not just those
associated with communications and transactions, augurs badly for the chances of a revived
politics, especially when, at a mundane level, cultures of surveillance seem so innocuous.
Surveillance Link
Fixations on security and current surveillance practices jointly cause the state of
exception.
Lyon 15 - director of the Surveillance Studies Centre (David; member of the Royal Society of
Canada, received Lifetime Achievement Award from the American Sociological Association
Communication and Information Technology Section, a Killian Research Fellow; “The Snowden
Stakes: Challenges for Understanding Surveillance Today;” Surveillance & Society;
http://library.queensu.ca/ojs/index.php/surveillance-and-society/article/view/snowden_stakes)
As mentioned earlier, security is becoming a key driver of surveillance, not only at the
‘national’ level but also in general types of policing, urban security and in workplaces, transit
systems and schools (Taylor 2013). This is of course, a key issue and one fraught with basic
problems of definition, which also relates to its status as a widely-used political rationale for a
range of controversial measures. The kind of ‘national security’ that prompts increased
surveillance arguably has little in common with the kinds of ‘security’—from things like famine,
fear, even freedom—that many might think would benefit their communities and families.
Moreover, in practice, many current attempts to procure national security seem to jeopardize
the civil liberties and human rights basic to democratic practice (see Zedner 2009). At the same
time, it must be acknowledged that not only ‘security’ but also some much more mundane
motifs are significant in the development of surveillance today. One is ‘efficiency,’ that
encourages the use of cost-cutting policies and technology-intensive solutions and the other is
‘convenience’ that dominates much of the appeal of marketers to consumers. Under such very
ordinary and unremarkable motifs surveillance expands apace, as evidence-producing
technologies (as Josh Lauer calls them) are adopted for reasons that are routine and everyday.
‘Security,’ on the other hand, is still supreme among these ‘drivers.’ For philosopher Giorgio
Agamben, the security motif seen behind contemporary surveillance may be trumping not only
democracy but politics itself (Agamben 2013) and this insight may at least serve as a theorem to
be explored. At the same time, this trend must be seen alongside another, the intertwining—
and in some respects integration—of public and private agencies. The governmental and the
corporate have always worked closely together in modern times but the idea that they inhabit
essentially different spheres, with different mandates, is currently unraveling. As Snowden
revealed, telephone companies such as Verizon and internet companies such as Microsoft work
in tandem with state agencies such as the NSA, in ways that have yet to be fully understood.
Historical examples in Germany show that placing limits on surveillance only
normalizes the state of exception later on in the future.
Frohman 15 - Associate Professor of History and Director of Social Studies Education at the
State University of New York (Larry; B.A. in History/B.S. Economics University of Pennsylvania;
“Datenschutz, the Defense of Law, and the Debate over Precautionary Surveillance: The Reform
of Police Law and the Changing Parameters of State Action in Western Germany;” Germany
Studies Review 38.2; May 2015; Project Muse;
http://muse.jhu.edu.proxy.lib.umich.edu/journals/german_studies_review/v038/38.2.frohman.
html)
NOTE: Rasterfahndung = dragnet
The reform of state police laws was an ongoing process, and there is no clearly demarcated end
to the developments set in motion by the census decision.46 However, there was one event
that might be considered to mark the provisional culmination of the reform and informational
transformation of police law in the 1970s and 1980s. After reunification, all of the new federal
states in the former East Germany, which had been chastened by their experience with the
country’s secret police, passed their [End Page 321] own privacy protection (and freedom of
information laws) and revised their police laws based on West German models. In 1995 a group
of legislators asked Saxony’s constitutional court to rule on the constitutionality of a number of
provisions of the state’s police law. The court expressed no reservations in principle concerning
the constitutionality of Rasterfahndung for precautionary purposes. However, it ruled that in
practice the requirement—which was set out in the state law—that such matching be
necessary for preventing serious crime could only be satisfied if in each instance there were
“factual indications” that serious offenses, for which the law authorized the use of the
practice, were being planned. Mere fears or presumptions on the part of the police, the Court
insisted, did not satisfy the criterion of proportionality.47 In this way, the criterion of “factual
indications,” in conjunction with more or less precise definitions of what constituted a serious
crime, came to define and delimit, at least for a brief period, the extent to which the traditional
liberal principles of concrete dangers and well-grounded individual suspicion could be
attenuated to facilitate precautionary surveillance and the preventive combatting of abstract
risks. How well this criterion balanced between individual privacy rights and the common
interest in greater security through effective crime prevention is a different question.
Despite the controversy that had raged around it in the 1980s, Rasterfahndung fell into relative
desuetude during the 1990s. However, since 2001 it has reemerged as a favorite tool in the
search against presumed sleepers, and these attempts to use computer matching to identify
potential perpetrators within a population from which they are not readily distinguished has
called into question the provisional compromise of the 1990s and raised new questions about
the extent to which the use of Rasterfahndung to combat abstract risks can be reconciled with
the rule of law.48
By the early 1990s, all of these debates had coalesced around the question of whether the
piecemeal codification of precautionary surveillance had led to a paradigm shift that marked the
“end” of classical police law.49 Such criticisms focused on the erosion of procedural
protections of individual privacy rights in the name of more flexible and effective prevention,
the blurring or Entgrenzung of the institutional boundaries that had been established to insure
that police power did not again degenerate into an instrument for totalitarian rule, and the
restructuring of the country’s “security architecture.”50 It is undeniable that the central
principles of liberal police law, which underlay the logic of state limitation, have been eroded by
the new precautionary surveillance practices.51 Critics have argued that this partial
institutionalization of the precautionary principle in the security field entailed the normalization
of the state of exception, the “unprecedented generalization of the paradigm of security as the
normal technique of government,” and ultimately the establishment of a postliberal form of
social governance in which security policy comes to colonize social policy and instrumentalize it
for its own ends.52 The surveillance state debate of the 1970s and 1980s drew its energy and
plausibility from an awareness of the ways in which [End Page 322] these developments were
shifting the parameters of state action and the fear that the expansion of police surveillance
would be used to repress legitimate social protest that could not be integrated through
democratic means.
Methods of surveillance in the squo only make our state of exception more and
more powerful.
McQuillan 15 – Lecturer in Creative and Social Computing at Goldsmiths, University of
London (Dan; PhD in Experimental Particle Physics, Director of E-communications for Amnesty
International, co-founder of Social Innovation Camp; “Algorithmic States of Exception;”
European Journal of Cultural Studies 18(4/5); SAGE Journals; 01/07/15;
http://ecs.sagepub.com.proxy.lib.umich.edu/content/18/4-5/564.full.pdf+html)
[[Threat models and data models Edward Snowden’s revelations (Electronic Frontier
Foundation, 2014) are shocking to many because they suggest that the Internet has been set to
spy on us. Rather than being platforms for the free exchange of knowledge, the leaked
documents show the Internet and the web to be covered in surveillance machines that do not
discriminate between suspects and the general population. Yet, as disturbing as this picture
might be, it is at the same time a diversion. By pointing the finger at the National Security
Agency (NSA) and Government Communications Headquarters (GCHQ), the revelations divert
attention from the mechanisms of online business. Tracking is at the heart of Silicon Valley’s
operations (Mozilla, 2014), and online business-as-usual depends on ferreting out as much
information as possible about users; our actions are recorded, collated and sold as part of the
large-scale circulation of segmented advertising profiles. It is advertising revenues that oil the
wheels of Silicon Valley and the implicit social contract is that service users will accept or ignore
the gathering of their information in return for wellengineered free services such as Gmail and
Facebook. It is important to realise that this is as expansive as the activities of PRISM, Boundless
Informant and other intelligence agency programmes. If we are taken aback by reports that
GCHQ developed code to extract user information from the popular gaming app Angry Birds
(Larson et al., 2014), we should remember that the games companies themselves are already
collecting and sharing this information for marketing purposes. In this article, I will consider the
implications of this activity in terms of a threat and the way this threat is connected to big data.
When security professionals discuss risk with non-governmental organisation (NGO) activists or
journalists who have a reasonable suspicion that they are under surveillance, they will often talk
in terms of defining a threat model. In other words, rather than considering security as a blanket
term, it is important to consider what specific information should be secret, who might want
that information, what they might be able to do to get it and what might happen if they do
(Bradshaw, 2014). The emerging potential for algorithmic states of exception outlined in this
article suggests that the business model and the threat model are becoming synonymous, by
giving rise to interactions that interfere with our assumptions about privacy and liberty. In
addition, the flow of everyday data that are being gathered by these companies has surged into
a permanent tsunami, whose landward incursions have become known as big data. The diverse
minutiae of our digital interactions on the web and in the world (through smartphones, travel
passes, etc.) are aggregated into this new object of study and exploitation. Industry tries to
capture big data through definitions like ‘volume, velocity and variety’ (Gartner, 2011) so it can
be positioned as both El Dorado (McKinsey, 2011) and panacea (Hermanin and Atanasova,
2013), perhaps unconsciously recapitulating alchemical notions of the Philosophers’ Gold. Critics
counter with questions about the ability of big data’s numbers to speak for themselves, their
innate objectivity, their equivalence and whether bigness introduces new problems of its own
(boyd and Crawford, 2011). I will suggest that the problems and the threats are not driven by big
data as such, any more than the drifting iceberg is the cause of the global warming that
unloosed it. Instead, we need to look at the nature of the material–political apparatus that
connects data to decision-making and governance. ]]
The way society disciplines citizens through discourses of health, criminality, madness and
security (Foucault, 1977) is given categorical foundations in the structures of data. Consider, for
example, the category of ‘troubled families’ created by the Department for Communities and
Local Government (2014) to identify families as requiring specific forms of intervention from the
agencies in contact with them. The 40,000 or so families whose ‘lives have been turned around’,
by being assigned a single keyworker tasked with getting them into work and their children back
to school on a payment by results model, would have been identified through some operations
on the data fields that make their existence legible to the government. In turn, various agencies
and processes would have operated on those individuals as both effect and affect, as a created
intensity of experiential state, in ways that would construct the subjectivity of membership of a
socalled troubled family. These actions would, in turn, become new content for data fields and
would form the substrate for future interventions. Thus, the proliferation of data does not
simply hedge the privacy of enlightenment individuals but produces new subjectivities and
forms of action. The data that enable this activity are produced by what Foucault called a
dispositif:
A heterogeneous ensemble consisting of discourses, institutions, architectural forms, regulatory
decisions, laws, administrative measures, scientific statements, philosophical, moral and
philanthropic propositions. Such are the elements of the apparatus. The apparatus itself is the
system of relations that can be established between these elements. (Foucault, 1980, quoted in
Ruppert, 2012)
This article argues that the apparatus is undergoing a significant shift in the system of relations
at several levels: in architectural forms (forms of database structures), administrative measures
(as algorithms), regulation (as algorithmic regulation) and laws (as states of exception). The
moral and philosophical propositions will be considered at the end of the article where I discuss
potential means of resisting these shifts.
At the bottom layer of this stack of changes is the architecture of database systems. For the last
few decades, the Relational Database Management System (RDBMS) has been a core part of any
corporate or state apparatus. The relational database transcribes between informational
content and action in the world. It stores data in flat tables of rows, each row containing the
same set of fields. Each table represents an entity in the world (e.g. a person), and the fields are
the attributes of that entity (which for a person could be name, age, sexual orientation and so
on). Each row in the table is an instance of that entity in the world (so one table consists of
many people), and the relationships between tables model relationships in the world (e.g.
between the table of people and the table of families). Operations on the data are expressed in
Structured Query Language (SQL) which enables specific questions to be asked in a
computationally effective manner (Driscoll, 2012). It is a powerful and efficient way to manage
information at scale and up till now has been well suited to the needs of organisations.
However, it can be a real challenge to restructure a relational database because new kinds of
data have come along or because there is too much data to store on a single server. Under the
pressure of social media and big data, new forms of databases are emerging which drop the
relational model and the use of SQL. Commonly called NoSQL databases, their relative fluidity
feeds into the social consequences I am interested in understanding.
The structure of a relational database is an architecture of assumptions, built on a fixed
ontology of data and anticipating the queries that can be made through its arrangement of
entities and relationships. It encapsulates a more-or-less fixed perspective on the world and
resists the re-inscription of the data necessary to answer a completely new and unanticipated
set of questions. NoSQL dumps the neatly defined tables of relational databases in favour of
keeping everything in ‘schema-less’ data storage (Couchbase, 2014). In NoSQL, all the varied
data you have about an entity at that moment is wrapped up as a single document object – it
does not matter if it duplicates information stored elsewhere, and the kinds of data stored can
be changed as you go along. Not only does it allow data to be spread across many servers, it
allows a more flexible approach to interrogating it. The data are not stored in neatly boundaried
boxes but can easily be examined at different granularities; so, for example, rather than
retrieving the profile photos of a certain set of users, you can use an algorithm to search eye
colour. These dynamic systems can handle unstructured, messy and unpredictable data and
respond in real-time to new ways of acting on patterns in the data. Like a shoal of startled fish,
the application of this heterogeneous data can sharply change direction at any moment.
Throwing away the need to plan a database structure beforehand or to think through the use
and articulation of the data leaves a free field for the projection of the imagination. In the next
section, I describe how this accelerates the established trend of data-mining and prediction and
feeds new ideas about possibilities for governance.
Algorithmic preemption
Data are transformed into propensities through algorithms, in particular through forms of
algorithmic processing known as data-mining and machine learning. Data-mining looks for
patterns in the data, such as associations between variables and clusters, while machine
learning enables computers to get better at recognising these patterns in future data (Hastie,
2003). Hence, there exists the possibility of making predictions based on inferences from the
data. In the pioneering days of data-mining, the interest was in the future purchasing decisions
of supermarket customers. But the potential for empirical predictions is also attractive to social
structures concerned with risk management, whether those risks are related to car insurance or
the likelihood of a terrorist attack. For some, the massive rise in the means of finding
correlations is something to be celebrated, enabling decisions about probable disease outbreaks
or risks of building fires to be based on patterns in the data (Mayer-Schonberger and Cukier,
2013). However, a probabilistic algorithm will certainly result in some false positives, where it
essentially makes wrong guesses. Moreover, the ‘reasoning’ behind the identification of risk by
an algorithm is an enfolded set of statistical patterns and may be obscure to humans, even
when all the data are accessible. As a result ‘data mining might point to individuals and events,
indicating elevated risk, without telling us why they were selected’ (Zarsky, 2002). Ironically, the
predictive turn introduces new risks because of the glossed-over difference between correlation
and causation. I show how this is amplified as decisions based on correlations move into the
social domain below.
The increasing use of prediction is colliding with our assumptions about political and judicial
fairness, through preemptive predictions – forms of prediction which are ‘intentionally used to
diminish a person’s range of future options’ (Kerr and Earle, 2013). A good illustration of
preemptive prediction is the no-fly list of people who are not allowed to board an aircraft in the
United States. The list is compiled and maintained by the US government’s Terrorist Screening
Centre. People are usually unaware that they are on the list until they try to board a plane, and
face legal obfuscation when they try to question the process by which they were placed on the
list (Identity Project, 2013). The only way to tell if you have been taken off the list is to try to get
on a flight again and see what happens. The principle of fair and equal treatment for all under
the law relies on both privacy and due process, but the alleged predictive powers of bigdatamining are on course to clash with the presumption of innocence. In Chicago, an algorithmic
analysis predicted a ‘heat list’ of 420 individuals likely to be involved in a shooting, using risk
factors like previous arrests, drug offences, known associates and their arrest records. They
received personal warning visits from a police commander, leading at least one person to worry
that the attention would mis-identify him to his neighbours as a snitch (Gorner, 2013).
Defending themselves against the charge that they were discriminating against the Black
community, the Chicago police officials referred back to the mathematical nature of the
analysis. Thus, preemptive measures are applied without judicial standards of evidence and
police are sometimes prepared to act on the basis of an algorithm while asserting that they do
not understand the reasoning process it has carried out. While these cases may seem like
outliers, the widespread adoption of algorithmic regulation may embed the same process at the
core of regulatory action.
The concept of algorithmic regulation is being promoted as a mechanism of social governance.
One of the leading proponents is Tim O’Reilly, previously credited as a spokesman for Web 2.0
and its strategy of basing online services on user-generated data. O’Reilly and others use the
term algorithmic regulation to describe this computational approach to government. They argue
that the dynamic and statistical feedback loops used by corporations like Google and Facebook
to police their systems against malware and spam can be used by government agencies to
identify and modify social problems. These processes are already at play in the private sector; if
you agree to a black box recorder in your car that tracks your driving behaviour, you will be
offered a hefty discount on your car insurance (Confused.com, 2014). For policy makers, this
promises a seamless upscaling of Thaler and Sunstein’s (2008) theory of the ‘Nudge’, where
small changes to the so-called choice architecture of everyday life alter people’s behaviour in a
predictable and desirable way. The resources available to governments have been thinned by
crisis-driven cuts and outsourcing, but big data bring a wealth of information. The skills of
commercial data-mining and machine learning are ready to probe us for proclivities of which we
may or may not be aware. Algorithmic regulation seems to offer an apparatus with traction on
obesity, public health and energy use through real-time interventions. But, as we have seen, this
is made possible by a stack of social technologies with the tendency to escape due process
through preemption and justify actions based on correlation rather than causation. How do we
understand the implications of pervasive yet opaque mechanisms where correlation becomes a
basis for correction or coercion? I argue that a useful lens is Giorgio Agamben’s ideas about the
state of exception.
States of exception
In his work on states of exception, Agamben (2005) examines the legal basis of events such as a
declaration of martial law or the introduction of emergency powers, states of affairs where law,
rights and political meaning to life are suspended, of which an emblematic contemporary
example is the detention camp in Guantanamo Bay. Roman law allowed for the suspension of
the law in times of crisis through the idea that necessity has no law (‘necessitas legem non
habet’). In modern times, the state of exception emerged from the emergency measures of
World War I and reached its paramount manifestation in the Third Reich. Agamben interrogates
the juridical significance of a sphere of action that is itself extrajudicial to understand the way it
has been justified in a legal context and the broader implications of that justification.
Historically, the state of exception has been brought within a juridical context by linking it with
constituent power rather than constituted power, in other words, linking it not with the existing
legal framework but with those forces that are the founding power of the constitution. This
ultimately leads Agamben to the conclusion that our norms and rights are themselves rooted in
the state of exception. We are living in a kind of fiction, a really existing state of emergency,
from which we cannot return directly to the state of law ‘for at issue now are the very concepts
of state and law’. However, the application to the question of algorithms comes to the fore
through an intermediate part of Agamben’s thesis, in the way that he identifies the topological
structure of the state of exception as ‘being-outside and yet belonging’ and through his
distinction between the law and the force of the law. I suggest that ‘being-outside and yet
belonging’ is the form of the spaces being created by the algorithmic apparatus. While tied to
clearly constituted organisational and technical systems, the new operations have the potential
to create social consequences that are unaddressed in law. These experiences have been
prototyped in social media. When Facebook’s algorithms decide that an unlucky user has
violated their Terms of Service, that person discovers he or she has no recourse; there is no real
explanation of why they were excluded, and no one to whom he or she can appeal. No matter
that they were excluded simply for crossing some statistical confidence limit; or that their long
virtual labour in liking, friending and updating helped generate real share value for the
company; or that Facebook may have become an important lever in their social life or in a
political campaign (York, 2010). Their prior agency and existence in this pseudopublic space has
been algorithmically suspended. Payday lending companies like Wonga now use the full
spectrum of heterogeneous data, including Facebook, to assemble thousands of dynamic data
points to make loan decisions (Deville, 2013). Everyday life is becoming permeated by points of
contact with algorithmic systems that can influence the friction or direction of our experience. In
the 1950s, redlining was used to describe the way people were charged more for insurance and
healthcare or denied services or jobs based on living in a deprived (often racially identified) part
of town. The potential with big data and data-mining is a new and agile form of ‘personal
redlining’ (Davidow, 2014) that is dynamic and updated in real-time. Ambitious forms of
algorithmic regulation will combine with new forms of discrimination to apply limits and
exclusions. The effect will be to apply continuous partial states of exception through
algorithmically derived actions.
According to Agamben, the signature of a state of exception is ‘force-of’ – actions that have the
force of law even when not of the law. Software is being used to predict which people on parole
or probation are most likely to commit murder or other crimes. The algorithms developed by
university researchers use a dataset of 60,000 crimes and some dozens of variables about the
individuals to help determine how much supervision the parolees should have (Bland, 2010).
While having discriminatory potential, this algorithm is being invoked within a legal context. But
the steep rise in the rate of drone attacks during the Obama administration has been ascribed to
the algorithmic identification of ‘risky subjects’ via the disposition matrix (Cobain, 2013).
According to interviews with US national security officials, the disposition matrix contains the
names of terrorism suspects arrayed against other factors derived from data in ‘a single,
continually evolving database in which biographies, locations, known associates and affiliated
organizations are all catalogued’ (Miller, 2012). Seen through the lens of states of exception, we
cannot assume that the impact of algorithmic force-of will be constrained because we do not
live in a dictatorship. Agamben’s point is that there exists a confusion between dictatorship and
the state of exception. The fascist states of the 1930s were not dictatorships but dual states
with second structures that could exist alongside the constitution via the creation of states of
exception. What we need to be alert for, according to Agamben, is not a confusion of legislative
and executive powers but separation of law and force of law. The contention of this article is
that predictive algorithms increasingly manifest as a force-of which cannot be restrained by
invoking privacy or data protection.
Legal regulation alone will NOT be able to solve the state of exception.
McQuillan 15 – Lecturer in Creative and Social Computing at Goldsmiths, University of
London (Dan; PhD in Experimental Particle Physics, Director of E-communications for Amnesty
International, co-founder of Social Innovation Camp; “Algorithmic States of Exception;”
European Journal of Cultural Studies 18(4/5); SAGE Journals; 01/07/15;
http://ecs.sagepub.com.proxy.lib.umich.edu/content/18/4-5/564.full.pdf+html)
Protections against the abuse of modern bureaucratic and corporate data gathering have been
established under the broad principle of a right to privacy and specific regulations regarding
data protection. Responses to the risks posed by big data or algorithmic discrimination such as
the ‘Civil Rights Principles for the Era of Big Data’ (The Leadership Conference, 2014) or the
‘Seven Principles for Big Data and Resilience Projects’ (Crawford and Meier, 2013) deploy these
conventional ideas about rights. While this might be useful as tactic, I am arguing that it is futile
as a strategy, first, because predictive algorithms obfuscate the act of inference. This makes it a
priori impossible to fulfil the basics of due process, those judgements about likelihood and
balance of proofs are made openly. But second, and more fundamentally, the character of the
state of exception erases the possibility of legal regulation. While a state of exception is not a
dictatorship, it is a space devoid of law where legal determinations are deactivated, especially
that between public and private. If there is no longer a public and private as far as the apparatus
is concerned, resistance is going to require much more than data protection. Below, I take a lead
from Agamben in looking for means of resistance to states of exception in the work of Walter
Benjamin. I follow this by describing manifestations of those ideas in historical social
movements and in contemporary forms of digital resistance.
Democracy Impact
The inevitable utilization of the state of exception leads to the liquidation of
democracy
Agamben 05, Giorgio Agamben, professor of aesthetics at the University of Verona and
author of ten books, titled: State Of Exception, pages 6-8
Tingsten’s analysis centers on an essential technical problem that pro- foundly marks the
evolution of the modern parliamentary regimes: the delegation contained in the “full powers”
laws mentioned above, and the resulting extension of the executive’s powers into the legislative
sphere through the issuance of decrees and measures. “By ‘full powers laws’ we mean those laws by
which an exceptionally broad regulatory power is granted to the executive, particularly the power to
modify or abrogate by decree the laws in force” (Tingsten 1934, 13). Because laws of this na- ture, which should be issued to cope
with exceptional circumstances of necessity or emergency,
conflict with the fundamental hierarchy of law and
regulation in democratic constitutions and delegate to the execu- tive [governo] a legislative power that
should rest exclusively with par- liament, Tingsten seeks to examine the situation that arose in a series of countries
(France, Switzerland, Belgium, the United States, England, Italy, Austria, and Germany) from the systematic expansion of
execu- tive [governamentali] powers during World War One, when a state of siege was declared or
full powers laws issued in many of the warring states (and even in neutral ones, like Switzerland). The book goes
no further than recording a large number of case histories; nevertheless, in the conclusion the author seems to realize that
although a temporary and controlled use of full powers is theoretically compatible with democratic constitutions, “a systematic and regular exercise of the institution necessarily leads to the
‘ liquidation’ of democracy” (333). In fact, the gradual erosion of the legislative powers of parliament—
which today is often limited to ratifying measures that the executive issues through decrees having
the force of law— has since then become a common prac- tice. From this perspective, World War One (and
the years following it) appear as a laboratory for testing and honing the functional mechanisms and apparatuses of the state of
exception as a paradigm of government. One
of the essential characteristics of the state of exception—the
provi- sional abolition of the distinction among legislative, executive, and ju- dicial powers—here shows its tendency to
become a lasting practice of government.: [T]here are no ultimate institutional safeguards
available for insur- ing that emergency powers be used for the purpose of preserving the
Constitution. Only the people’s own determination to see them so used can make sure of that. . . . All in all the quasidictatorial provi- sions of modern constitutional systems, be they martial rule, state of siege, or
constitutional emergency powers, fail to conform to any ex- acting standard of effective
limitations upon a temporary concentra- tion of powers. Consequently, all these systems are
liable to be trans- formed into totalitarian schemes if conditions become favorable to it. (584)
The democratic search for zoe is what is destroying it.
Agamben, philosopher, 1998 (Giorgio. Qualifications here. “Homo Sacer.”
Book. 4/1/98.)
If anything characterizes modern democracy as opposed to classical democracy, then, it is that modern
democracy
presents itself from the beginning as a vindication and liberation of zoē, and that it is constantly
trying to transform its own bare life into a way of life and to find, so to speak, the bios of zoē. Hence, too, modern
democracy’s specific aporia: it wants to put the freedom and happiness of men into play in the very
place – “bare life” – that marked their subjection. Behind the long, strife-ridden process that leads
to the recognition of rights and formal liberties stands once again the body of the sacred man
with his double sovereign, his life that cannot be sacrificed yet may, nevertheless, be killed. To
become conscious of this aporia is not to belittle the conquests and accomplishments of democracy. It is, rather, to try to
understand once and for all why democracy,
at the very moment in which it seemed to have finally
triumphed over its adversaries and reached its greatest height, proved itself incapable of saving zoē,
to whose happiness it had dedicated all its efforts, from unprecedented ruin. Modern democracy’s
decadence and gradual convergence with totalitarian states in post-democratic spectacular societies (which begins to become
evident with Alexis de Tocqueville and finds its final sanction in the analyses of Guy Debord) may well be rooted in this aporia, which
marks the beginning of modern democracy and forces it into complicity with its most implacable enemy. Today
politics
knows no value (and, consequently, no nonvalue) other than life, and until the contradictions that this
fact implies are dissolved, Nazism and fascism – which transformed the decision on bare life into the
supreme political principle – will remain stubbornly with us. According to the testimony of Robert Antelme,
in fact, what the camps taught those who lived there was precisely that “calling into question the quality of man provokes an almost
biological assertion of belonging to the human race” (L’espèce humaine, p. II).
The idea of an inner solidarity between democracy and totalitarianism (which here we must, with every caution, advance) is
obviously not (like Leo Strausss thesis concerning the secret convergence of the final goals of liberalism and communism) a
historiographical claim, which would authorize the liquidation and leveling of the enormous differences that characterize their
history and their rivalry. Yet this idea must nevertheless be strongly maintained on a historico-philosophical level, since it alone will
allow us to orient ourselves in relation to the new realities and unforeseen convergences of the end of the millennium. This idea
alone will make it possible to clear the way for the new politics, which remains largely to be invented.
In contrasting the “beautiful day” (euemeria) of simple life with the “great difficulty” of political bios in the passage cited above,
Aristotle may well have given the most beautiful formulation to the aporia that lies at the foundation of Western politics. The 24
centuries that have since gone by have brought only provisional and ineffective solutions. In carrying out the metaphysical task that
has led it more and more to assume the form of a biopolitics, Western
politics has not succeeded in constructing
the link between zoē and bios, between voice and language, that would have healed the
fracture. Bare life remains included in politics in the form of the exception, that is, as
something that is included solely through an exclusion. How is it possible to “politicize” the “natural
sweetness” of zoē? And first of all, does zoē really need to be politicized, or is politics not already contained in zoē as its most
precious center? The biopolitics of both modern totalitarianism and the society of mass hedonism and consumerism certainly
constitute answers to these questions. Nevertheless, until
a completely new politics – that is, a politics no longer
founded on the exception of bare life – is at hand, every theory and every praxis will remain imprisoned
and immobile, and the “beautiful day” of life will be given citizenship only either through
blood and death or in the perfect senselessness to which the society of the spectacle
condemns it.
Drones Impact
Weaponized drones allow for unique states of exception that reduce targets to
Homo Sacer.
Andersen 15 – Student at the Roskilde University (Anders Høgh, Caroline Elmquist-Clausen,
Mikkel Steen Dahlgaard, Patrick Schack; “Governing the Future: Risk, Armed Drones, and State
of Exception;” RUDAR Archives; 03/5/15; http://rudar.ruc.dk/handle/1800/18849)
SUMMARY The armed drone illustrates a political tool applied in the War on Terror as a State of
Exception in terms of being a ‘space without law’. In demonstrating a political will and decision
to use the technology of armed drones to monitor and kill with contiguity exemplifies the State
of Exception in specific geographies. In homogenizing the enemy of the state into spaces of
exception, the political violence of the armed drone implies going down a rabbit hole – a chaotic
space of confusion outside the ‘normal’ law. The space and life surrounding the terrorist is
politicized as ‘bare life’ that is implicit in the State of Exception. Thereby the rights of identified
terrorists and the space they inhabit is no longer part of the politico-juridical space of the U.S.
Arguably, there are two spaces of exceptions: one that is imagined and where legitimacy is
created and one that is geographical where violence is perpetrated. The armed drone appears
to connect the two spaces in both a political and technological way.
Governmental Killing Machine Impact
Utilizing the state of exception turns the government into a killing machine
Agamben 05, Giorgio Agamben, professor of aesthetics at the University of Verona and
author of ten books, titled: State Of Exception, pages 85-86
It is perhaps possible at this point to look back upon the path trav- eled thus far and draw some provisional conclusions from our
investi- gation of the state of exception. The
juridical system of the West appears as a double structure,
formed by two heterogeneous yet coordinated el- ements: one that is normative and juridical in
the strict sense (which we can for convenience inscribe under the rubric potestas) and one that is anomic and
metajuridical (which we can call by the name auctoritas). The normative element needs the anomic
element in order to be ap- plied, but, on the other hand, auctoritas can assert itself only in the
val- idation or suspension of potestas. Because it results from the dialectic between these two
somewhat antagonistic yet functionally connected elements, the ancient dwelling of law is
fragile and, in straining to main- tain its own order , is always already in the process of ruin and
decay . The state of exception is the device that must ultimately articulate and hold together
the two aspects of the juridico-political machine by instituting a threshold of undecidability
between anomie and nomos, between life and law, between auctoritas and potestas. It is founded on the
essential fiction according to which anomie (in the form of auctoritas, living law, or the force of law) is still
related to the juridical order and the power to suspend the norm has an immediate hold on life.
As long as the two el- ements remain correlated yet conceptually, temporally, and subjectively
distinct (as in republican Rome’s contrast between the Senate and the people, or in medieval Europe’s contrast between spiritual
and temporal powers) their dialectic—though founded on a fiction—can nevertheless function in
some way. But when they tend to coincide in a single per- son, when the state of exception, in
which they are bound and blurred together, becomes the rule, then the juridico-political system
transforms itself into a killing machine.
Genocide Impact
Utilizing the state of exception gives rise to genocidal dictatorships – Nazi
Germany proves
Agamben 05, Giorgio Agamben, professor of aesthetics at the University of Verona and
author of ten books, titled: State Of Exception, pages 14-16
The history of Article 48 of the Weimar Constitution is so tightly woven into the history of Germany
between the wars that it is impossible to understand Hitler’s rise to power without first
analyzing the uses and abuses of this article in the years between 1919 and 1933. Its immediate precedent
was Article 68 of the Bismarckian Constitution, which, in cases where “public security was
threat- ened in the territory of the Reich,” granted the emperor the power to declare a part of
the Reich to be in a state of war (Kriegszustand), whose conditions and limitations followed those set forth in the
Prussian law of June 4, 1851, con- cerning the state of siege. Amid the disorder and rioting that followed the end
of the war, the deputies of the National Assembly that was to vote on the new constitution
(assisted by jurists among whom the name of Hugo Preuss stands out) included an article that granted the
president of the Reich extremely broad emergency [eccezionali] powers. The text of Article 48
reads, “If security and public order are seriously [erheblich] disturbed or threatened in the
German Reich, the president of the Reich may take the measures necessary to reestablish
security and public order, with the help of the armed forces if required. To this end he may
wholly or partially suspend the fundamental rights [Grundrechte] established in Articles 114, 115, 117, 118, 123,
124, and 153.” The article added that a law would specify in detail the conditions and limitations under which this presidential
power was to be exercised. Since
that law was never passed, the pres-ident’s emergency [eccezionali]
powers remained so indeterminate that not only did theorists regularly use the phrase
“ presidential dictatorship ” in reference to Article 48, but in 1925 Schmitt could write that “no
constitution on earth had so easily legalized a coup d’état as did the Weimar Constitution”
(Schmitt 1995, 25). Save for a relative pause between 1925 and 1929, the governments of the Re- public, beginning
with Brüning’s, made continual use of Article 48, proclaiming a state of exception and issuing
emergency decrees on more than two hundred and fifty occasions; among other things, they
employed it to imprison thousands of communist militants and to set up special tribunals
authorized to pronounce capital sentences. On several occasions, particularly in October 1923, the government had recourse to Article 48 to cope with the fall of the mark, thus confirm- ing the modern
tendency to conflate politico-military and economic crises. It is well known that the last years of
the Weimar Republic passed entirely un- der a regime of the state of exception; it is less obvious
to note that Hitler could probably not have taken power had the country not been under a
regime of pres- idential dictatorship for nearly three years and had parliament been functioning. In July 1930, the Brüning government was put in the minority, but Brüning did not resign. Instead, President Hindenburg
granted him recourse to Article 48 and dissolved the Reichstag. From that moment on, Germany in fact ceased to be a
parliamentary republic . Parliament met only seven times for no longer than twelve months in
all, while a fluctuating coalition of Social Democrats and centrists stood by and watched a
government that by then answered only to the president of the Reich. In 1932, Hindenburg—reelected
president over Hitler and Thälmann—forced Brüning to resign and named the centrist von Papen to his post. On June 4, the
Reichstag was dissolved and never reconvened until the advent of Nazism. On July 20, a
state of exception was
proclaimed in the Prussian territory, and von Papen was named Reich Commissioner for
Prussia—ousting Otto Braun’s Social Democratic government. The state of exception in which
Germany found itself during the Hindenburg presidency was justified by Schmitt on a
constitutional level by the idea that the president acted as the “guardian of the constitution”
(Schmitt 1931); but the end of the Weimar Republic clearly demonstrates that, on the contrary, a
“protected democracy” is not a democracy at all, and that the paradigm of constitutional
dictatorship functions instead as a transitional phase that leads inevitably to the
establishment of a totalitarian regime .
Given these precedents, it is understandable that the constitution of the
Fed- eral Republic did not mention the state of exception. Nevertheless, on June 24, 1968, the
“grand coalition” of
Christian Democrats and Social Democrats passed a law for the amendment of the constitution
(Gesetz zur Ergänzung des Grundge- setzes) that reintroduced the state of exception (defined as the “state of internal
necessity,” innere Notstand). However, with an unintended irony, for the first time in the history of the
institution, the proclamation of the state of exception was provided for not simply to safeguard
public order and security , but to de- fend the “liberal-democratic constitution. ” By this point,
protected democracy had become the rule.
A state of exception allows legal genocide of adversaries
Agamben, 2003
Giorgio, 2003, “GIORGIO AGAMBEN - STATE OF EXCEPTION”, The European Graduate School,
http://www.egs.edu/faculty/giorgio-agamben/articles/state-of-exception/
[[[[In his Political Theology, Carl Schmitt established the essential proximity between the state
of exception and sovereignty. But although his famous definition of the sovereign as "the one
who can proclaim a state of exception" has been commented on many times, we still lack a
genuine theory of the state of exception within public law. For legal theorists as well as legal
historians it seems as if the problem would be more of a factual question than an authentic legal
question.
The very definition of the term is complex, since it is situated at the limit of law and of politics.
According to a widespread conception, the state of exception would be situated at an
"ambiguous and uncertain fringe at the intersection of the legal and the political," and would
constitute a "point of disequilibrium between public law and political fact." The task of defining
its limits is nevertheless nothing less than urgent. And, indeed, if the exceptional measures that
characterize the state of exception are the result of periods of political crisis, and if they for this
very reason must be understood through the terrain of politics rather than through the legal or
constitutional terrain, they find themselves in the paradoxical position of legal measures that
cannot be understood from a legal point of view, and the state of exception presents itself as
the legal form of that which can have no legal form.
And, furthermore, if the sovereign exception is the original set-up through which law relates
to life in order to include it in the very same gesture that suspends its own exercise, then a
theory of the state of exception would be the preliminary condition for an understanding of
the bond between the living being and law. To lift the veil that covers this uncertain terrain
between, on the one hand, public law and political fact, and on the other, legal order and life, is
to grasp the significance of this difference, or presumed difference, between the political and
the legal; and between law and life. Among the elements that render a definition of the state of
exception thorny, we find the relationship it has to civil war, insurrection and the right to resist.
And, in fact, since civil war is the opposite of the normal state, it tends to coalesce with the state
of exception, which becomes the immediate response of the State when faced with the gravest
kind of internal conflict. In this way, the 20th century has produced a paradoxical phenomenon
defined as "legal civil war."
Let us look at the case of Nazi Germany. Just after Hitler came to power (or, to be more precise,
just after he was offered power) he proclaimed, on February 28, 1933, the Decree for the
Protection of the People and the State. This decree suspends all the articles in the Weimar
Constitution maintaining individual liberties. Since this decree was never revoked, we can say
that the entire Third Reich from a legal point of view was a twelve year-long state of
exception. And in this sense we can define modern totalitarianism as the institution, by way
of a state of exception, of a legal civil war that permits the elimination not only of political
adversaries, but whole categories of the population that resist being integrated into the
political system . Thus the intentional creation of a permanent state of exception has become
one of the most important measures of contemporary States, democracies included. And
furthermore, it is not necessary that a state of exception be declared in the technical sense of
the term.]]]
Hegemony Impact
States of emergency destroy US credibility and undermines hegemony, this
turns the case
Bigo, professor, 2006
Didier, professor at King’s College London, 2006, “Theorizing surveillance: The panopticon and
beyond”, Willan Publishing, Cullompton, Academia.edu,
https://www.academia.edu/3102812/Security_exception_ban_and_surveillance
Critical security studies and surveillance studies have a lot in common, but they rarely interact
with one another. Surveillance studies is now a specific field of research in sociology that has
been initiated by sociologists such as Gary Marx and David Lyon, which has expanded far beyond
its original focus concerning activities of surveillance and control of minorities by police and
intelligence services.1 Surveillance technologies, as well as attitudes towards constant
monitoring of activities, have shifted and greatly expanded to become routines of everyday life,
rather than exceptional practices. The idea of an Orwellian society in the making, through a
‘liberal’ agenda, has been much discussed. Michel Foucault uses the term ‘panopticon’ to
describe both the development of the Orwellian society and its transformation, as it moves from
a society of discipline to a society of management and monitoring the life of populations
encapsulated in a territorial container controlled by the state. Critical criminology has engaged
in discussion about the accuracy of using Michel Foucault’s ‘dispositif’2 notion of the
panopticon, which some authors view as too government-focused, to Deleuze’s notion of the
‘assemblage’ (Haggerty and Ericson 2000). Kevin Haggerty and Richard Ericson have developed
the approach of the assemblage, and I have discussed the limits of the Foucaldian notion of the
pan-opticon in an earlier piece by proposing the notion of the ‘ban-opticon’ (Bigo 2005).
The notion of ‘ban’ originates from international relations (IR) and critical security studies and is
on a parallel track with surveillance studies. The ban-opticon deconstructs some of the postSeptember 11 analysis as a ‘permanent state of emergency’ or as a ‘generalized state of
exception’,3 which reinstates the question of who decides about the exception in the heart of
the IR debate: who is sovereign, and who can legitimately name the public enemy. The banopticon dispositif is established in relation to a state of unease created by the United States
and its allies. The United States has propagated the idea that there is a global ‘in-security’,
which is attributed to the development of threats of mass destruction, thought to be derived
from terrorist and other criminal organizations and governments that support them. This has
led the US to assert the need for a globalized security that would render national borders
obsolete and pressure other international actors to collaborate. These developments have
created the field of ‘unease management’, which is the formation of global police networks,
policing military functions of combat and criminalizing the notion of war. The governmentality
of unease is characterized by practices of exceptionalism, acts of profiling and containing
foreigners, and a normative imperative of mobility (Bigo 2005).
The ban attempts to show how the role of routines and acceptance of everyday life protects
some over others, or how the protection of these others against themselves as the profound
structure which explains the ‘moment’ of the declaration of exception.4 It also attempts to
reveal the judicial illusion that a specific moment declares the sovereign borders of the political,
which is so favoured in many analyses. This view needs to be amended by a sociological stance
that takes into account long-term social processes and public acceptance of the routines of
surveillance.
It’s been less than a week since former National Security Agency systems administrator Edward
Snowden, through the reporting of The Guardian and The Washington Post, lifted the curtain on
the United States government’s vast surveillance apparatus. Snowden, who shed light on how
the NSA monitors the cell phone activity, credit card data, and Internet browsings of millions of
Americans, is responsible for one of the biggest national security leaks in U.S. political history.
And the American people don’t really seem to care.
More than half (56 percent) of the 1,004 adult respondents to a national survey conducted June
6-9 by the Pew Research Center and The Washington Post said that the NSA program tracking
telephone records is “an acceptable way for the government to investigate terrorism.” Fortyone percent felt the practice was unacceptable.
The American public is somewhat more divided on the NSA’s Internet monitoring programs,
with 45 percent of respondents agreeing that the government should be able to “monitor
everyone’s email and other online activities if officials say this might prevent future terrorist
attacks” and 52 percent disagreeing. Despite the Prism revelations, this isn’t a drastic shift from
how Americans felt back in July 2002, when a Pew survey found that 45 percent of Americans
were OK with the government monitoring Internet activity in order to prevent future attacks (47
percent said it should not). Pew’s researchers conclude from the latest survey that there are “no
indications that last week’s revelations of the government’s collection of phone records and
Internet data have altered fundamental public views about the tradeoff between investigating
possible terrorism and protecting personal privacy.”
Surveillance is deemed fine right after an attack, this means a future attack will
justify more surveillance breaches, bringing America into a State of Exception,
also turns the case
Keller, journalist, 2013
Jared, Jared Keller is a journalist living in Brooklyn, NY. His work has appeared in the Atlantic,
Bloomberg Businessweek, Al Jazeera America, the Los Angeles Review of Books, and the Verge,
6/12/13, “Why Don’t Americans Seem to Care About Government Surveillance?”, Pacific
Standard, http://www.psmag.com/politics-and-law/why-dont-americans-care-aboutgovernment-surveillance-60011
[[[In a poll conducted shortly after the manhunt for the Boston Marathon bombing suspects,
78 percent of respondents agreed with the increased used of surveillance cameras in public
places.
Despite days of headlines about the American surveillance state and government invasions of
privacy (and a huge spike in sales of George Orwell’s 1984 on Amazon), Americans seem to have
accepted the scope and reach of the post-9/11 surveillance state into their lives as necessary.
Pew notes that 62 percent of Americans believe the federal government should investigate
possible terrorist threats, even if that means intruding on personal privacy, while just 34
percent say it is more important for the government not to intrude on personal privacy, even
if that limits its ability to investigate possible terrorist threats.
Why are Americans so comfortable with the surveillance state? It’s likely that this acceptance
goes hand-in-hand with an acceptance of the reality of modern terrorism.
In a New York Times/CBS poll conducted shortly after the manhunt for Boston Marathon
bombing suspects Tamerlan and Dzhokhar Tsarnaev, 78 percent of respondents agreed with
the increased used of surveillance cameras in public places, “judging the infringement on their
privacy as an acceptable trade-off for greater security from terrorist attacks,” as the Times put
it. Of those respondents, 24 percent said a terrorist attack on the United States was “very
likely” in the next few months and 42 percent somewhat likely. (In the previous year, just 10
percent of people had said another attack in the U.S. in the next few months was “very
likely.”)]]]
The threat of terror in our cities, immediately after 9/11, was paralyzing. Now, despite the
horror of the bombings in Boston and the attacks that have been thwarted by counterterrorism
efforts in the years since 9/11 (like Najibullah Zazi’s 2009 plot to detonate explosives on the
New York subway), terrorism seems to have become more accepted as a modern geopolitical
phenomenon, a fixture in the background of our daily lives.
“Concern about another terrorist episode in the United States has increased after the events in
Boston,” wrote Micah Cohen at FiveThirtyEight shortly after the manhunt for the two suspects
concluded. “But there has not been the upsurge in concern over such an attack that there was in
the aftermath of September 11, 2001, in New York City. The post-Boston polls have also shown
that Americans’ personal sense of threat—as opposed to the generalized threat that the country
faces—remains low.”
How, exactly, does one get used to the threat of terror? Have Americans become so habituated
to domestic dangers (as opposed to, say, the faraway theater of conventional war) that we’ve
come to accept the continued presence of the modern surveillance state, even when a someone
like Edward Snowden provides a glimpse as to how it intrudes on our everyday lives?
It’s certainly possible. While terrorism is designed to demoralize and, well, terrorize a target
population, groups with regular exposure to ongoing violence can develop a high tolerance for
disruptions to civil society.
Some of the best research into this matter focuses on the psychological impact of terrorism on
Israelis following the outbreak of the Second Intifada in September 2000. In a 2003 article in The
Journal of the American Medical Association, researchers Avraham Bleich, Marc Gelkopf, and
Zahava Solomon set out to determine the relationship between terrorist attacks and the
prevalence of traumatic stress-related symptoms and the public sense of safety in Israel. They
discovered a “moderate” level of stress immediately following the outbreak of violence around
Jerusalem from 2000 to 2002; survey participants “showed distress and lowered sense of safety,
they did not develop high levels of psychiatric distress, which may be related to a habituation
process and to coping mechanisms,” according to the researchers. This resonates with the
reaction of U.S. citizens immediately following 9/11. A national survey conducted just days after
the attacks found that 44 percent of the adults reported substantial stress symptoms.
But over time, the trauma caused by the Intifada became somewhat normalized throughout the
Israeli population. New York University’s Ariel Y. Shalev found in 2006 that PTSD levels
eventually stabilized in various neighborhoods throughout Jerusalem, regardless of whether
they’d been directly affected by terrorism or not.
A 2010 study in Economica on Israel’s experience with terror by Cornell University’s Asaf
Zussman (and co-authored with Bank of Israel researcher Noam Zussman and Dmitri Romanov
of the Israel Central Bureau of Statistics) examined happiness and psychological health among
Israeli citizens from 2002 to 2004, the years immediately following those examined by Bleich et
al. In their econometric analysis of happiness among Israelis four years after the start of the
Intifada, Zussman and her colleagues found that terrorist attacks had practically no effect on
happiness levels. Zussman is careful to note that this isn’t a blanket habituation phenomenon
for Israel’s entire populace—Arab Israelis experience a more negative reaction to terror attacks
than Jewish Israelis—but that the general tolerance for terrorism in the nation remained high as
the years passed from the initial outbreak of violence. “Overall, the level of happiness remained
stable throughout the Intifada years despite a large variation in the intensity of terrorism across
time and location,” writes Zussman. “The evidence thus casts a doubt on the effectiveness of
terrorism in achieving one of its main objectives—demoralizing enemy population.”
But even if terrorism seems uncontrollable to the average citizen, why aren’t more concerned
with the level of surveillance undertaken by a state they, theoretically, have some legal and
political power in? Not only are programs like Prism classified as top secret and their mention
outlawed by the FISA courts that authorize their usage, but the very architecture of surveillance
is designed to be unseen and unobtrusive. We only get riled up about violations of our
constitutional rights when they’re obvious, and immediate, like the genital scrutiny of the
Transportation Safety Administration. By contrast, terrorism, despite its infrequency, is a still a
highly visible and deeply personal experience for Americans. Conor Friedersdorf draws out this
distinction with regards to September 11:
Most Americans don't just remember where they were on September 11, 2001—they
remember feeling frightened. Along with anger, that's one emotion I felt, despite watching the
attacks from a different continent. That week, you couldn't have paid me to get on a plane to
New York or Washington, D.C. Even today, I'm aware that terrorists target exactly the sorts of
places that I frequent. I fly a lot, sometimes out of LAX. I've ridden the subway systems in
London and Madrid. I visit Washington and New York several times a year. I live in Greater Los
Angeles.
... As individuals, Americans are generally good at denying al Qaeda the pleasure of terrorizing
us into submission. Our cities are bustling; our subways are packed every rush hour; there
doesn't seem to be an empty seat on any flight I'm ever on. But as a collective, irrational
cowardice is getting the better of our polity. Terrorism isn't something we're ceding liberty to
fight because the threat is especially dire compared to other dangers of the modern world. All
sorts of things kill us in far greater numbers. Rather, like airplane crashes and shark attacks, acts
of terror are scarier than most causes of death. The seeming contradictions in how we treat
different threats suggest that we aren't trading civil liberties for security, but a sense of security.
We aren't empowering the national-security state so that we're safer, but so we feel safer.
The “national emergency state” from which programs like Prism have originated has outlived
the national emergency. A strong executive isn’t necessarily alien in the American constitutional
system in the event of an emergency. The Prize Cases established that one of the core
obligations of that branch is to meet any exigency “in the shape it presented itself, without
waiting for Congress to baptize it with a name,” and subsequent Supreme Court cases—I’m
thinking Ex parte Milligan, Schenck v. U.S. (which established the “clear and present danger”
prerequisite for executive action), and Brandenburg v. Ohio, in particular—have continued to
define and circumscribe the juridical spaces where the executive branch of the government can
act unilaterally to deal with a crisis.
PRISM/NSA Impact
PRISM and other NSA programs take away our 4th amendment to stop the war
on terror; this creates a state of exception.
Kaminski, the executive director of the Information Society Project at Yale Law School. 2013.
(Margot, She is a graduate of Harvard University and Yale Law School and a former fellow of the
Information Society Project. While at Yale Law School, she was a Knight Law and Media Scholar
and co-founder of the Media Freedom and Information Access Practicum. Following graduation
from Yale Law School, she clerked for The Honorable Andrew J. Kleinfeld of the Ninth Circuit
Court of Appeals. She has been a Radcliffe Research Fellow at Harvard and a Google Policy
Fellow at the Electronic Frontier Foundation. Her research and advocacy work focuses on media
freedom, online civil liberties, data mining, and surveillance issues. She has written widely on
law and technology issues for law journals and the popular press and has drawn public attention
to the civil liberties issues surrounding the Anti-Counterfeiting Trade Agreement. “PRISM's
Legal Basis: How We Got Here, and What We Can Do to Get Back”. The Atlantic.
http://www.theatlantic.com/national/archive/2013/06/prisms-legal-basis-how-we-gothere-and-what-we-can-do-to-get-back/276667/)
In the past two days, the press has provided unprecedented revelations of how pervasive the
secret surveillance state has become. Leaks reveal that the FBI and NSA have received all
Verizon Business Services telephone call records , including geolocation data; and the NSA uses
a program called PRISM to access user content held by Google, Facebook, Microsoft, and Apple.
How can a country that constitutionally protects privacy permit its government to spy on such a
scale? The Fourth Amendment prevents dragnet surveillance by requiring law enforcement to
go to courts and show probable cause. These dual requirements of court oversight and a
legitimate, targeted investigation ensure that people will not be subject to general searches
by an abusive government. But intelligence-gathering that involves "the activities of foreign
powers" is treated differently, whether it occurs inside or outside of the United States.
Foreign intelligence is the exception that has swallowed the Fourth Amendment whole. As
my colleague Anjali Dalal points out, people probably believe that foreign intelligence law is "
supposed to be going after foreign intelligence ," but its impact on Americans is surprisingly
broad. In 1978, Congress set up a system governing foreign intelligence surveillance. The
surveillance programs leaked in the past two days are the results of the post-9/11 version of this
system. The Verizon call records, which include phone numbers, location data, and timestamps,
were authorized as the collection of "business records" under the PATRIOT Act. And the PRISM
program--which allows the NSA to access content such as emails, search histories, and audio
chats-- is authorized as part of "foreign intelligence" gathering under the 2008 Amendments
to the Foreign Intelligence Surveillance Act (FISA). If the revelations of the past two days have
taught us anything, it is that revision of our foreign intelligence surveillance system is a
constitutional necessity. It is crucial to understand that the foreign intelligence system as it
currently exists fails to require both adequate targeting and adequate oversight. The system
allows intelligence agencies to gather an enormous amount of information "incidental" to any
investigations . And it does so with minimal court and Congressional oversight . If the
revelations of the past two days have taught us anything, it is that revision of our foreign
intelligence surveillance system is a constitutional necessity. If the Fourth Amendment is to
have any meaning, Congress must untangle the current web of broad authorizations and
broad secrecy that allows the government to escape judicial accountability for its acts. First,
there is the question of whom the surveillance targets. PRISM spies on Americans. The Director
of National Intelligence emphasized yesterday that PRISM targets only " non-U.S. persons
located outside the United States ." But the press release also acknowledges that "information
about U.S. persons" may be "incidentally acquired" in such pursuits. Targeting is not the same as
collecting; the program may "target" foreign persons, but "acquire" information on Americans.
The current scope of this "incidental" surveillance will shock most Americans. Before 2008, the
law limited "incidental" surveillance by limiting primary surveillance. The government had to
show probable cause that its surveillance target was the agent of a foreign power, and that the
facility being watched was about to be used by that target. You could be incidentally observed if
you communicated with a targeted foreign agent, but otherwise foreign communications were
likely to be unmonitored. But in 2008, the FISA Amendments Act (FISAAA) changed this. The
government now does not need to show probable cause that the target is a foreign agent. It
need only have a "reasonable belief" that the target is located outside of the United States.
The new version of FISA does not require the government to identify its targets; it does not
require the government to identify the monitored facilities; and the purpose of foreign
intelligence gathering attaches to the whole surveillance program, not the individual
investigation. That is to say: the FISA Amendments Act permits the government to obtain a
single court order through which it can monitor thousands, or even millions, of people. The
scope of "incidental" surveillance thus vastly expanded as Congress lowered the requirements
for spying on the primary target. Such a system will inevitably sweep in untold numbers of
Americans who communicate with foreigners. And because the government need have only a
"reasonable belief" that the target is outside the United States--which it is interpreting
according to the Washington Post as a 51% chance that the target is outside the U.S.--this
system will undoubtedly sweep in purely domestic communications as well. This brings us to the
issue of oversight: who is watching the watchers? The Director of National Intelligence assures
us that PRISM is "subject to oversight by the Foreign Intelligence Surveillance Court, the
Executive Branch, and Congress." It is true that in December 2012 Congress renewed the law
that allows PRISM to exist. But what kind of oversight did Congress actually provide? When
Senators Ron Wyden and Mark Udall asked whether communications by Americans had been
gathered under the law, the Director of National Intelligence responded that it was not possible
to identify the number of people in the United States whose communications were reviewed.
How effective can Congressional oversight be if Congress does not understand the scope and
nature of the programs it has authorized? At the core of the problem is that the Foreign
Intelligence Surveillance Court (FISA Court), which meets in secret and does not publish its
opinions, itself does not provide adequate oversight. When Congress changed the standard for
targeting foreign individuals in 2008 , it abolished the ability of the FISA Court to evaluate
whether the government had any real cause to target an individual or group of individuals.
The Supreme Court itself disputes whether the FISA Court enforces the Fourth Amendment. The
"minimization procedures" touted by the Director of National Intelligence as adequate privacy
safeguards are established by the government, evaluated by the government, and are subject to
review by a secret court--if review occurs at all. And as a general practice, FISA "minimization"
hasnot been true minimization: it occurs after information is already acquired. The existence of
PRISM and the Verizon metadata program, both authorized by the FISA Court, confirms that a
secret court broadly authorized by an uninformed Congress will not adequately protect the
Fourth and First Amendment rights of American citizens on American soil. So what can we
do? The first instinct might be to look to federal courts to protect our constitutional rights. But
in February of this year, the Supreme Court effectively closed that avenue of recourse at least
with respect to PRISM in Clapper v. Amnesty International. The majority of the Court found that
the group of lawyers, journalists, and human rights advocates who challenged the
constitutionality of the law that authorizes PRISM could not show that they had been injured by
it. The Court explained that the alleged surveillance was too speculative; the group could not get
into court unless it showed that surveillance of its members was "certainly impending." One
might think that a new lawsuit could show that surveillance is "certainly impending," because
we now know that the PRISM program exists. But this is not clear. Any plaintiffs would probably
still face the significant hurdle of showing that the government has spied on them in particular,
or their foreign correspondents. And while the existence of a similarly pervasive spying program
led the Ninth Circuit to find that a similar lawsuit could proceed, that case came down before
the recent Supreme Court opinion. The best solution, then, is Congress. Congress must repeal
the FISA Amendments Act, which it regrettably reauthorized in 2012. Otherwise the revelation
that the government can and does spy on Americans through Internet companies will chill
expression, chill free association, and threaten our society's growing reliance on cloud
computing for everything from intimate communications to business transactions. And Congress
should reevaluate the secrecy surrounding our entire foreign intelligence-gathering system,
because if the past two days have shown anything, it is that lack of oversight leads to
extraordinary abuses.
The NSA is not a question of privacy, but a question of power between political
life and bare life.
Rosen, a senior editor at The Atlantic, 2013, (Rebecca, “Why Should We Even Care If the
Government Is Collecting Our Data?” The Atlantic,
http://www.theatlantic.com/technology/archive/2013/06/why-should-we-even-care-if-thegovernment-is-collecting-our-data/276732/)
As people have tried to make sense of the recent revelations about the government's mass
data-collection efforts, one classic text is experiencing a spike in popularity: George Orwell's
1984 has seen a 7,000 percent increase in sales over the last 24 hours.*
But wait! This is the wrong piece of literature for understanding the NSA's programs, argues
legal scholar Daniel J. Solove. In his book, The Digital Person, Solove writes that the troubles
with the collection of massive amounts of personal data in databases are distinct from those of
government surveillance, the latter being the focus of 1984. He summed up his argument in a
later paper (emphasis added): Many commentators had been using the metaphor of George
Orwell's 1984 to describe the problems created by the collection and use of personal data. I
contended that the Orwell metaphor, which focuses on the harms of surveillance (such as
inhibition and social control) might be apt to describe law enforcement's monitoring of citizens.
But much of the data gathered in computer databases is not particularly sensitive, such as one's
race, birth date, gender, address, or marital status. Many people do not care about concealing
the hotels they stay at, the cars they own or rent, or the kind of beverages they drink. People
often do not take many steps to keep such information secret. Frequently, though not always,
people's activities would not be inhibited if others knew this information. I suggested a different
metaphor to capture the problems: Franz Kafka's The Trial, which depicts a bureaucracy with
inscrutable purposes that uses people's information to make important decisions about them,
yet denies the people the ability to participate in how their information is used. The problems
captured by the Kafka metaphor are of a different sort than the problems caused by
surveillance. They often do not result in inhibition or chilling. Instead, they are problems of
information processing--the storage, use, or analysis of data--rather than information collection.
They affect the power relationships between people and the institutions of the modern state.
They not only frustrate the individual by creating a sense of helplessness and powerlessness,
but they also affect social structure by altering the kind of relationships people have with the
institutions that make important decisions about their lives. This reframing that Solove
proposes is important not as a matter of literary criticism but because it more precisely
pinpoints the problems the NSA programs could create. Politically, the traditional explanations -that this is a violation of our privacy -- don't seem convincing to many people. According to a
new Pew poll, 56 percent of Americans approve of the NSA's phone-data collection and 45
percent of email monitoring. Sixty-two percent say it is more important to investigate terror
threats than it is to avoid privacy intrusions. The most convincing reasoning for the majority's
position is, in Solove's view, "formidable." He writes, "The NSA surveillance, data mining, or
other government information gathering programs will result in the disclosure of particular
pieces of information to a few government officials, or perhaps only to government computers.
This very limited disclosure of the particular information involved is not likely to be threatening
to the privacy of law-abiding citizens." In other words, for many Americans, digital data
collection, analyzed by algorithm, does not amount to a serious invasion of their privacy. In
this calculation, the amount of privacy traded away is small, and the potential security gains
great. This is a trade many Americans are willing to make, and not irrationally. So, why then
are the NSA's programs troubling? It's not so much in the collection of the data per se (the
surveillance part) but the holding and processing of that data in perpetuity. As Solove writes
(emphasis added): The NSA program involves a massive database of information that
individuals cannot access. Indeed, the very existence of the program was kept secret for years.
This kind of information processing, which forbids people's knowledge or involvement,
resembles in some ways a kind of due process problem . It is a structural problem involving
the way people are treated by government institutions. Moreover, it creates a power
imbalance between individuals and the government . To what extent should the Executive
Branch and an agency such as the NSA, which is relatively insulated from the political process
and public accountability, have a significant power over citizens? This issue is not about
whether the information gathered is something people want to hide, but rather about the
power and the structure of government. Privacy is hard to define and even harder to defend.
The legal scholar Arthur Miller called it "exasperatingly vague and evanescent." Samuel Warren
and Louis Brandeis famously described it as the "right to be let alone" (something that the NSA's
programs can only very indirectly be characterized as violating, since they operate without
interfering with us pretty much at all). In Solove's formulation, we should ease off the privacy
hand-wringing and turn our attention to something much more fundamental: how we relate
as citizens to our government and how much power we have in that relationship.
Rights Impact
Mass surveillance invokes the state of exception, since basic human rights are
disregarded in favor of security.
Lyon 14 - director of the Surveillance Studies Centre (David; member of the Royal Society of
Canada, received Lifetime Achievement Award from the American Sociological Association
Communication and Information Technology Section, a Killian Research Fellow; “Surveillance,
Snowden, and Big Data: Capacities, consequences, critique;” Big Data & Society: Big Data &
Society On behalf of 2014 1; ResearchGate; January 2014;
http://www.researchgate.net/profile/David_Lyon10/publication/265965268_Big_Data__Society
_Big_Data__Society_On_behalf_of/links/5421d9e60cf238c6ea678102.pdf)
The main question addressed in this article is in two parts: One, in what ways and to what
extent do the Snowden disclosures indicate that Big Data practices are becoming increasingly
important to surveillance? The answer, clearly, is yes, they are. Many of the major Snowden
revelations, especially those in which metadata feature prominently, indicate a reliance upon
Big Data practices. The second question, following on from the first, is how far does this indicate
changes in the politics and practices of surveillance? Are new trends, or the augmentation of
older ones, visible here? Again, the evidence discussed here suggests strongly that Big Data
practices are skewing surveillance even more towards a reliance on technological ‘‘solutions,’’
and that this both privileges organizations, large and small, whether public or private, reinforces
the shift in emphasis towards control rather than discipline and relies increasingly on predictive
analytics to anticipate and preempt.
These questions were explored in respect to the capacities of Big Data, their social-political
consequences and the kinds of critique that may be appropriate for assessing and responding to
these developments. For the first, I argue that ‘‘size’’ is not directly the issue but rather that,
taken together, the loose cluster of attributes of ‘‘Big Data’’ make a difference in ways that are
hard to generalize. Big Data practices echo several key surveillance trends but in several
respects they point to realities that have perhaps been underestimated. One is that, within
surveillance studies there has been a general tendency to analyze multiple forms of surveillance
that are not directly linked with state-based, top-down surveillance of the kind epitomized in
George Orwell’s Nineteen-Eighty-Four. If this was understood by some to mean that more
generalized – or, following Gilles Deleuze, ‘‘rhizomic’’ – surveillance spells less state surveillance
activity, the Snowden revelations are rapidly dispelling that illusion.
However, those revelations, which as I show above, indicate an increasing dependence on Big
Data practices, also lay bare in ways that were known only hazily before just how far security
and intelligence agencies depend on data obtained from the commercial realm. These are
consequences that cry out for careful consideration. In a sense, this means that Orwell’s bleak
vision of what tendencies in post-war liberal democratic polities could lead to authoritarian
surveillance regimes were not mistaken so much as standing in need of complementary
analyses, such as that of his contemporary, Aldous Huxley, in Brave New World. Big Data
practices in consumer surveillance are (now literally!) co-travelers with those of state
surveillance and together produce the kinds of outcomes around which ethical debates should
now revolve. Indeed, not only are they ‘‘co-travelers,’’ they also cooperate extensively, the one
taking methods from the other, with, as discussed above, potentially pernicious results as the
‘‘successful’’ methods in one area are applied in ways deleterious of human rights in another.
Sadly, little time seems to be spent on such matters in typical computing studies departments in
today’s universities, where all too often notions like privacy and civil liberties are regarded as a
nuisance that slows research development (Narayanan and Vallor, 2014).
It is these matters in particular that attract critique, especially in relation to anticipatory and
preemptive approaches common to Big Data mindsets and activities and amplifying what is a
long-term surveillance trend. These fit neatly, of course, with currently intensifying political
styles of neo-liberalism that, with regard to ‘‘national security,’’ are seen in a list towards
actuarialism and a consequentialist concern with managing disorder and crime rather than
seeking its causes and attempting to eradicate them (Agamben, 2013). Let me give two
examples. Critically, certain time-honored legal protections such as a presumption of
innocence or proof beyond reasonable doubt are being eroded within a number of western
societies precisely due to the developing reliance on big-data-led beliefs that suspects can be
isolated by category and algorithm. Even if onetime ‘‘suspects’’ have their names cleared by
judicial process, the fact that Big Data practices exemplified in the collect-it-all slogan include
retaining data indefinitely, it can be hard for persons with a ‘‘record’’ ever to make a fresh start.
Data in the Canadian Police Information Centre, for example, remain there permanently. And
when police include mental health problems in their records these can lead to denial of entry to
Canadians trying to cross the border into the US. Attempted suicide calls, for example, have
been uploaded to international databases with just this outcome (CBC, 2014).
States of Exception are becoming the normal, and people lose all rights and
liberties
Agamben, 2003
Giorgio, 2003, “GIORGIO AGAMBEN - STATE OF EXCEPTION”, The European Graduate School,
http://www.egs.edu/faculty/giorgio-agamben/articles/state-of-exception/
[[[At least since Napoleon’s decree of December 24, 1811, French doctrine has opposed a
"fictitious or political" state of siege in contradistinction to a military state of siege. In this
context, English jurisprudence speaks of a "fancied exception"; Nazi legal theorists spoke
unconditionally of an "intentional state of exception" in order to install the National Socialist
State. During the world wars, the recourse to a state of exception was spread to all the
belligerent States. Today, in the face of the continuous progression of something that could be
defined as a "global civil war," the state of exception tends more and more to present itself as
the dominant paradigm of government in contemporary politics. Once the state of exception
has become the rule, there is a danger that this transformation of a provisional and
exceptional measure into a technique of government will entail the loss of the traditional
distinction between different forms of Constitution.
The basic significance of the state of exception as an original structure through which law
incorporates the living being - and, this, by suspending itself - has emerged with full clarity in
the military order that the President of the United States issued on November 13, 2001. The
issue was to subject non-citizens suspected of terrorist activities to special jurisdiction that
would include "indefinite detention" and military tribunals. The U.S. Patriot Act of October 26,
2001, already authorized the Attorney General to detain every alien suspected of endangering
national security. Nevertheless, within seven days, this alien had to either be expelled or
accused of some crime. What was new in Bush’s order was that it radically eradicated the legal
status of these individuals, and produced entities that could be neither named nor classified
by the Law. Those Talibans captured in Afghanistan are not only excluded from the status as
Prisoners of War defined by the Geneva Conventions, they do not correspond to any
jurisdiction set by American law: neither prisoners nor accused, they are simply detainees,
they are subjected to pure de facto sovereignty/to a detention that is indefinite not only in its
temporal sense, but also in its nature, since it is outside of the law and of all forms of legal
control. With the detainees at Guantamo Bay, naked life returns to its most extreme
indetermination.]]]
The most rigorous attempt to construct a theory of the state of exception can be found in the
work of Carl Schmitt. The essentials of his theory can be found in Dictatorship, as well in Political
Theology, published one year later. Because these two books, published in the early 1920s, set a
paradigm that is not only contemporary, but may in fact find its true completion only today, it is
necessary to give a resume of their fundamental theses.
Doctrine of sovereignty
The objective of both these books is to inscribe the state of exception into a legal context.
Schmitt knows perfectly well that the state of exception, in as far as it enacts a "suspension of
the legal order in its totality," seems to "escape every legal consideration"; but for him the issue
is to ensure a relation, no matter of what type, between the state of exception and the legal
order: "The state of exception is always distinguished from anarchy and chaos and, in the legal
sense, there is still order in it, even though it is not a legal order." This articulation is paradoxical,
since, that which should be inscribed within the legal realm is essentially exterior to it,
corresponding to nothing less than the suspension of the legal order itself. Whatever the nature
of the operator of this inscription of the state of exception into the legal order, Schmitt needs to
show that the suspension of law still derives from the legal domain, and not from simple
anarchy. In this way, the state of exception introduces a zone of anomy into the law, which,
according to Schmitt, renders possible an effective ordering of reality. Now we understand why
the theory of the state of exception, in Political Theology, can be presented as a doctrine of
sovereignty. The sovereign, who can proclaim a state of exception, is thereby ensured of
remaining anchored in the legal order. But precisely because the decision here concerns the
annulation of the norm, and consequently, because the state of exception represents the
control of a space that is neither external nor internal, "the sovereign remains exterior to the
normally valid legal order, and nevertheless belongs to it, since he is responsible for decision
whether the Constitution can be suspended in toto."
Ecstasy-belonging
To be outside and yet belong: such is the topological structure of the state of exception, and
since the being of the sovereign, who decides over the exception, is logically defined by this very
structure, he may also be characterized by the oxymoron of an "ecstasy-belonging."
1. In 1990, Jacques Derrida gave a lecture in New York entitled "Force de loi: le fondement
mystique de l’autorite." ["Force of Law: the Mystical Foundation of Authority"] The lecture, that
in fact consisted of a reading of an essay by Walter Benjamin, "Towards a Critique of Violence,"
provoked a big debate among philosophers and legal theorists. That no one had proposed an
analysis of the seemingly enigmatic formula that gave the lecture its title is not only a sign of the
profound chiasm separating philosophical and legal culture, but of the decadence of the latter.
The syntagm "Force de loi" refers back to a long tradition of Roman and Medieval Law where it
signifies "efficacy, the capacity to oblige," in a general sense. But it was only in the modern era,
in the context of the French Revolution, that this expression began designating the supreme
value of acts expressed by an assembly representative of the people. In article 6 from the
Constitution of 1791, "force de loi" designates the indestructible character of the law, that the
sovereign himself can neither abrogate nor modify.
From a technical point of view, it is important to note that in modern as well as ancient doctrine,
the syntagm "force de loi" refers not to the law itself, but to the decrees which have, as the
expression goes, "force de loi" - decrees that the executive power in certain cases can be
authorized to give, and most notably in the case of a state of exception. The concept of "force
de loi," as a technical legal term defines a separation between the efficacy of law and its formal
essence, by which the decrees and measures that are not formally laws still acquire its force.
Anomic space
This type of confusion between the acts by an executive power and those by a legislative power
is a necessary characteristic of the state of exception. (The most extreme case being the Nazi
regime, where, as Eichmann constantly repeated, "the words of the Fuhrer had the force of
law.") And in contemporary democracies, the creation of laws by governmental decrees that are
subsequently ratified by Parliament has become a routine practice. Today/the Republic is not
parliamentary. It is governmental. But from a technical point of view, what is specific for the
state of exception is not so much the confusion of powers as it is the isolation of the force of law
from the law itself. The state of exception defines a regime of the law within which the norm is
valid but cannot be applied (since it has no force), and where acts that do not have the value of
law acquire the force of law. This means, ultimately, that the force of law fluctuates as an
indeterminate element that can be claimed both by the authority of the State or by a
revolutionary organization. The state of exception is an anomic space in which what is at stake is
a force of law without law. Such a force of law is indeed a mystical element, or rather a fiction
by means of which the law attempts to make anomy a part of itself. But how should we
understand such a mystical element, one by which the law survives its own effacement and acts
as a pure force in the state of exception?
2. The specific quality of the state of exception appears clearly if we examine one measure in
Roman Law that may be considered as its true archetype, the iustitium. When the Roman
Senate was alerted to a situation that seemed to threaten or compromise the Republic, they
pronounced a senatus consultum ultimum, whereby consuls (or their substitutes, and each
citizen) were compelled to take all possible measures to assure the security of the State. The
senatus consultum implied a decree by which one declared the tumultus, i.e., a state of
exception caused by internal disorder or an insurrection whose consequence was the
proclamation of a iustutium.
The term iustitium - construed precisely like solstitium— literally signifies "to arrest, suspend
the ius, the legal order." The Roman grammarians explained the term in the following way:
"When the law marks a point of arrest, just as the sun in its solstice." Consequently, the
iustitium was not so much a suspension within the framework of the administration of justice,
as a suspension of the law itself. If we would like to grasp the nature and structure of the state
of exception, we first must comprehend the paradoxical status of this legal institution that
simply consists in the production of a leg. void, the production of a space entirely deprived by
ius. Consider the iustitium mentioned by Cicero in one of his Philippic Discourses. Anthony’s
army is marching toward Rome, and the consul Cicero addresses the Senate in the following
terms: "I judge it necessary to declare tumultus, to proclaim iustitium and to prepare for
combat." The usual translation of iustitium as "legal vacancy" here seems quite pointless. On the
contrary, faced with a dangerous situation, the issue is to abolish the restrictions imposed by the
laws on action by the magistrate - i.e., essentially the interdiction against putting a citizen to
death without having recourse to popular judgment.
Faced with this anomic space that violently comes to coalesce with that of the City, both ancient
and modern writers seem to oscillate between two contradictory conceptions: either to make
iustitium correspond to the idea of a complete anomy within which all power and all legal
structures are abolished, or to conceive of it as the very plentitude of law where it coincides
with the totality of the real.
Un-executing the law
Whence the question: what is the nature of the acts committed during iustitium? From the
moment they are carried out in a legal void they ought to be considered as pure facts with no
legal connotation: The question is important, because we are here contemplating a sphere of
action that implies above all the license to kill. Thus historians have asked the question of
whether a magistrate who kills a citizen during a iustitium can be put on trial for homicide once
the iustitium is over. Here we are faced with a type of action which appears to exceed the
traditional legal distinction between legislation, execution, and transgression. The magistrate
who acts during the iustitium is like an officer during the state of exception, who neither carries
out the law, nor transgresses it, just as little as he is in the process of creating a new law. To use
a paradoxical expression, we could say that he is in the process of "un-executing" the law. But
what does it meant un-execute the law? How should we conceive of this particular class within
the entire range of human actions? Let us now attempt to develop the results of our
genealogical investigation into the iustitium from the perspective of a general theory of the
state of exception.
- The state of exception is not a dictatorship, but a space devoid of law. In the Roman
Constitution, the dictator was a certain type of magistrate who received his power from a law
voted on by the people The iustitium, on the contrary, just as the modern state of exception
does not imply the creation of a new magistrate, only the creation of zone of anomy in which all
legal determinations find themselves inactivated. In this way, and in spite of the common view,
neither Mussolini nor Hitler can be technically defined as dictators. Hitler, in particular, was
Chancellor of the Reich, legally appointed by the president What characterizes the Nazi regime,
and makes it into such a dangerous model, is that it allowed the Weimar Constitution to exist,
while doubling it with a secondary and legally non-formalized structure the could not exist
alongside the first without the support of a generalize state of exception.
- For one reason or another this space devoid of law seems so essential to the legal order itself
that the latter makes every possible attempt to assure a relation to the former, as if the law in
order to guarantee its functioning would necessarily have to entertain a relation to an anomy.
Future violence
3. It is precisely in this perspective that we have to read the debate on the state of exception
which pitted Walter Benjamin and Carl Schmitt against each other between 1928 and 1940. The
starting point of the discussion is normally located in Benjamin’s reading of Political Theology in
1923, and in the many citations from Schmitt’s theory of sovereignty that appeared in The
Origin of German Tragic Drama. Benjamin’s acknowledging of Schmitt’s influence on his own
thought has always been considered scandalous. Without going into the details of this
demonstration, I think it possible to inverse the charge of scandal, in suggesting that Schmitt’s
theory of sovereignty can be read as the response to Benjamin’s critique of violence. What is the
problem Benjamin poses in his "Critique of Violence"? For him, the question is how to establish
the possibility of a future violence outside of, or beyond the law, a violence which could rupture
the dialectic between the violence that poses and the one that conserves the law. Benjamin calls
this other violence "pure," "divine," or "revolutionary." That which the law cannot stand, that
which it resents as an intolerable menace, is the existence of a violence that would be exterior
to it, and this not only because its finalities would be incompatible with the purpose of the legal
order, but because of the "simple fact of its exteriority."
Now we understand the sense in which Schmitt’s doctrine of sovereignty can be considered as a
response to Benjamin’s critique. The state of exception is precisely that space in which Schmitt
attempts to comprehend and incorporate into the thesis that there is a pure violence existing
outside of the law. For Schmitt, there is no such thing as pure violence, there is no violence
absolutely exterior to the nomos, because revolutionary violence, once the state of exception is
established, it always finds itself included in the law. The state of exception is thus the means
invented by Schmitt to respond to Benjamin’s thesis that there is a pure violence.
The decisive document in the Benjamin/Schmitt dossier is surely the 8th of the theses on the
concept of history: "The tradition of the oppressed teaches us that the ‘state of exception’ in
which we live is not the exception but the rule. We must attain to a conception of history that is
in keeping with this insight. Then we shall clearly realize that it is our task to bring about a real
state of exception, and this will improve our position in the struggle against Fascism."
Exception as a rule
That the state of exception since then has become the norm does not only signify that its
undecidability has reached a point of culmination, but also that it is no longer capable of
fulfilling the task assigned to it by Schmitt. According to him, the functioning of the legal order
rests in the last instance on an arrangement, the state of exception, whose aim it is to make the
norm applicable by a temporary suspension of its exercise. But if the exception becomes the
rule, this arrangement can no longer function and Schmitt’s theory of the state of exception
breaks down. In this perspective, the distinction proposed by Benjamin between - an effective
state of exception and a fictitious state of exception is essential, although little noticed. It can be
found already in Schmitt, who borrowed it from French legal doctrine; but this latter, in line with
his critique of the liberal idea of a state governed by law, deems any state of exception which
professes to be governed by law to be fictitious. Battle of the giants
Benjamin reformulates the opposition in order to turn it against Schmitt: once the possibility of
a state of exception, in which the exception and the norm are temporally and spatially distinct,
has fallen away, what becomes effective is the state of exception in which we are living, and
where we can no longer distinguish the rule. In this case, all fiction of a bond between it and law
disappears: there is only a zone of anomy dominated by pure violence with no legal cover. Now
we are in a position to better understand the debate between Schmitt and Benjamin. The
dispute occurs in that anomic zone which for Schmitt must maintain its connection to law at all
costs, whereas for Benjamin it has to be twisted free and liberated from this relation. What is at
issue here is the relation between violence and law, i.e., the status of violence as a cipher for
political action. The logomachia over anomy seems to be equally decisive for Western politics as
the "battle of the giants around being" that has defined Western metaphysics. To pure being as
the ultimate stake of metaphysics, corresponds pure violence as the ultimate stake of the
political; to the onto-theological strategy that wants pure being within the net of logos,
corresponds the strategy of exception that has to secure the relation between violence and law.
It is as if law and logos would need an anomic or "a-logic" zone of suspension in order to found
their relation to life.
4. The structural proximity between law and anomy, between pure violence and the state of
exception also has, as is often the case, an inverted figure. Historians, ethnologists, and folklore
specialists are well acquainted with anomic festivals, like the Roman Saturnalias, the charivari,
and the Medieval carnival, that suspend and invert the legal and social relations defining normal
order. Masters pass over into the service of servants, men dress up and behave like animals, bad
habits and crimes that would normally be illegal are suddenly authorized. Karl Meuli was the
first to emphasize the connection between these anomic festivals and the situations of
suspended law that characterize certain archaic penal institutions. Here, as well as in the
iustitium, it is possible to kill a man without going to trial, to destroy his house, and take his
belongings. Far from reproducing a mythological past, the disorder of the carnival and the
tumultuous destruction of the charivari re-actualize a real historical situation of anomy. The
ambiguous connection between law and anomy is thus brought to light: the state of exception is
transformed into an unrestrained festival where one displays pure violence in order to enjoy it
in full freedom.
5. The Western political system thus seems to be a double apparatus, founded in a dialectic
between two heterogeneous and, as it were, antithetical elements; nomos and anomy, legal
right and pure violence, the law and the forms of life whose articulation is to be guaranteed by
the state of exception. As long as these elements remain separated, their dialectic works, but
when they tend toward a reciprocal indetermination and to a fusion into a unique power with
two sides, when the state of exception becomes the rule, the political system transforms into an
apparatus of death. We ask: why does nomos have a constitutive need for anomy? Why does
the politics of the West have to measure up to this interior void? What, then, is the substance of
the political, if it is essentially assigned to this legal vacuum? As long as we are not able to
respond to these questions, we can no more respond to this other question whose echo
traverses all of Western political history: what does it mean to act politically?
This text is an extract from a lecture given at the Centre Roland-Barthes (Universite Paris VII,
Denis-Diderot) and an edited translation of 'Lo stato di eccezione come paradigma di governo':
the first chapter of Agamben's 'Stato di eccezione. Homo Sacer II' (Bollati Boringhieri, May 2003,
Torino).
State of Exception
The government’s surveillance take away its citizens liberties, the
reauthorization of these programs create a permanent state of exception. WE
ARE ALL HOMO SACER.
Cardin, the editor of BORN TO FEAR: INTERVIEWS WITH THOMAS LIGOTTI and the academic
encyclopedias MUMMIES AROUND THE WORLD and GHOSTS, SPIRITS, AND PSYCHICS: THE
PARANORMAL FROM ALCHEMY TO ZOMBIES. 2013. (Matt, Teeming Brain founder and editor
Matt Cardin is the author of DARK AWAKENINGS, DIVINATIONS OF THE DEEP, A COURSE IN
DEMONIC CREATIVITY: A WRITER'S GUIDE TO THE INNER GENIUS, and the forthcoming TO ROUSE
LEVIATHAN. “America’s post 9/11 surveillance state: Orwell mets Kafka in the Long
Emergency”, The Teeming Brain, http://www.teemingbrain.com/2013/06/13/americas-post911-surveillance-state-orwell-mets-kafka-in-the-long-emergency/)
Here in the midst of the still-building storm and scandal over the revelations about PRISM —
referring (in case you’ve recently been living under a rock or sunk in a coma) to “the system the
NSA uses to gain access to the private communications of users of nine popular Internet
services” — journalist and social media specialist Jared Keller offers these sobering and, to my
mind, utterly necessary reflections on the equally troubling revelation that many Americans are
deeply complacent about the whole thing: Despite days of headlines about the American
surveillance state and government invasions of privacy (and a huge spike in sales of George
Orwell’s 1984 on Amazon), Americans seem to have accepted the scope and reach of the post9/11 surveillance state into their lives as necessary. . . . Why are Americans so comfortable
with the surveillance state? It’s likely that this acceptance goes hand-in-hand with an
acceptance of the reality of modern terrorism. . . . The threat of terror in our cities, immediately
after 9/11, was paralyzing. Now, despite the horror of the bombings in Boston and the attacks
that have been thwarted by counterterrorism efforts in the years since 9/11 (like Najibullah
Zazi’s 2009 plot to detonate explosives on the New York subway), terrorism seems to have
become more accepted as a modern geopolitical phenomenon, a fixture in the background of
our daily lives. . . . . [I]f terrorism and the resulting surveillance state have become accepted
features of American public life (which, according to the latest polls, they have), then the
apparatus the government deploys to adjudicate and prosecute our war on terror should
become normalized in our existing legal regime. The Patriot Act and National Emergencies
Acts that provide the legal basis for the modern surveillance state were supposed to be
temporary “emergencies,” but with their continued re-authorization by Presidents Bush and
Obama, they have become the norm. — Jared Keller, “Why Don’t Americans Seems to Care
about Government Surveillance?” Pacific Standard, June 12, 2013 Keller goes on to point out the
really deep impact of these things on our collective circumstance here in the U.S.A.: We are
lurching from emergency to emergency, living in a permanent state of exception . Margot
Kaminski, executive director of the Information Society Project at Yale Law School, puts it nicely
in The Atlantic: “ Foreign intelligence is the exception that has swallowed the Fourth
Amendment whole.” This, I think, is the most significant impact of Snowden’s leak: not
necessarily to expose wrongdoing in the legal sense (since the sweeping dragnet of Prism and
the NSA’s monitoring of Verizon’s phone records are technically legal) but to take the abstract
legal concepts outlined under our emergency constitution and translate them into a political
reality in the minds of the American populace. “I really want the focus to be on these
documents and the debate which I hope this will trigger among citizens around the globe about
what kind of world we want to live in,” Snowden told The Guardian. “My sole motive is to
inform the public as to that which is done in their name and that which is done against them.”
The Pew/Washington Post poll may indicate that people are comfortable with swapping
liberty for security, but that doesn’t mean they’re comfortable with an unaccountable, totally
opaque, Kafka-esque security apparatus that falls in the legal gray area of our ongoing state
of exception. By way of context, I ask you to recall what our old Teeming Brain friend James
Howard Kunstler said, and said very loudly, in his best-selling book The Long Emergency:
Surviving the Converging Catastrophes of the Twenty-First Century, which was published way
back in the prehistoric mists of 2005. Writing in the immediate aftermath of 9/11, and
witnessing the craziness all around him, Kunstler prophesied thus: It has been very hard for
Americans — lost in dark raptures of nonstop infotainment, recreational shopping and
compulsive motoring — to make sense of the gathering forces that will fundamentally alter the
terms of everyday life in our technological society. Even after the terrorist attacks of 9/11,
America is still sleepwalking into the future. I call this coming time the Long Emergency. . . . [W]e
are entering a historical period of potentially great instability, turbulence and hardship. Or
actually that particular passage comes from a 2005 article by Kunstler in Rolling Stone, likewise
titled “The Long Emergency.” Kunstler’s main focus in that article and his book was not
terrorism or surveillance but the seismic shaking of industrial civilization’s foundations by the
dawning of the age of scarcity for cheap and easy fossil fuels (a development that isn’t belied
but confirmed by all of the recent talk about the “new oil bonanza,” which is the result of
massive investments in the kind of galactically complex and far out alternative oil extraction
maneuvers that were formerly inconceivable because they were unnecessary). But his “Long
Emergency” characterization still clearly encompassed terrorism and the growth of a massive
surveillance state in America and elsewhere to complement the massive geopolitical conflicts
and at-home unpleasantness stemming from oil-fueled imperial ambitions. Again, Kunstler said
those things eight years ago. And he was hardly alone. In other words, it’s as our
transformation here in America into an Orwellian and Kafka-esque surveillance state where
the all-consuming desire to snoop and fully crucify the notion of privacy is driven by the reality
of our “lurching from emergency to emergency, living in a permanent state of exception” —
it’s as if this transformation is unfolding according to a well-foreseen plan. Just like, say, the
financial and economic collapse of 2008, which was foreseen by Kunstler and others but
pshawed by the talking heads who were supposed to represent authoritative and trustworthy
mainstream wisdom. These authorities, we were told, offered a bulwark of sanity and
sensibleness against the kooks who said the entire economy of not just America but Europe and
elsewhere was all a big, crazy, scary, evanescent hallucination that was primed to pop like a
soap bubble. But pop it did . And living in the Long Emergency we are. All bets are still off, just
as they were several years ago when the meaning of common sense shifted to something we’re
still trying to figure out. Only now we’re doing it while being tracked, recorded, and analyzed
every step of the way.
Bios/Zoe Alternative
The alternative is to end all sovereign attempts to call politics to one order and
the refusal to draw lines.
Jenny Edkins, professor of international politics at Prifysgol Aberystwyth University (in Wales)
and Veronique Pin-Fat, senior lecturer in politics at Manchester Universit, “Through the Wire:
Relations of Power and Relations of Violence,” Millennium - Journal of International Studies
2005, PG 12)
To summarise the argument so far: Agamben argues that the drawing of lines between zoeand bios constitutes ‘the fundamental activity of sovereign power [that] is the production of
bare life as originary political element’.47 The problem with this, as he
demonstrates, is that ‘bare life remains included in politics in the form
of the exception, that is, as something that is included solely through an
exclusion’.48 It is this that leads us to the camps and to his
disheartening declaration that ‘today … we are all virtually homines
sacri’.49 Perhaps it is this conclusion that prompts William Connolly to
say that Agamben proffers a ‘logic of sovereignty’ which brings us to ‘an
historical impasse’ where no way out is disclosed.50 Against Connolly’s
reading, we suggest that Agamben’s contribution provides an insight
into ways in which sovereign power can be challenged and indeed its
‘logic’ or grammar refused. As we have pointed out, the possibility of
resistance is in general not one which relies on an ‘escape’ or
‘emancipation’ from power relations. Indeed, we have argued that such
an escape leads us into the camps, which are marked by such an absence
of power relations. What we will call a challenge to or contestation of sovereign power,
on the contrary, entails a displacement of sovereign power and a return to properly political
power relations: a life of power. A challenge to sovereign power’s creation of zones of
indistinction (the concentration camp being the paradigmatic example) cannot consist of a call
for a reinstatement of classical politics, a reinstatement of the distinction between zoe- and
bios. Firstly, this is not a possibility because the very distinction itself,
and the lines that it draws, is ‘the fundamental activity of sovereign
power’.51 Secondly, the classical distinction requires that bare life can
only be included through an exclusion in the form of an exception. There
cannot be a return to a politics that maintains the distinction between zoe- and bios, or, in
Agamben’s words: There is no return from the camps to classical politics. In
the camps, city and house became indistinguishable, and the possibility
of differentiating between our biological body and our political body –
between what is incommunicable and mute and what is communicable
and sayable – was taken from us forever.52 Either way, whether through an
emancipatory ideal or through a reinstatement of classical politics, we would all remain
homines sacri or bare life. However, challenge may be possible not through emancipation or
nostalgic return, but, as we will argue, through either of two other strategies: first, through a
refusal to draw lines and second, through the assumption of bare life. We have argued
that Agamben’s work demonstrates that sovereign power is no longer a
form of power relation in Foucauldian terms but a relationship of
violence (as his discussion of the camp shows). Since this is the case,
however paradoxical it may seem, challenges to sovereign power take
place when there is a demand for a return to properly political power
relations, and take the form of such a demand. Agamben’s injunction is that we
must find ‘a completely new politics – that is, a politics no longer founded on the exceptio of
bare life’ .53 If the zone of indistinction has extended beyond the camp to
embrace much of the rest of the world, then what we have is an
extension of bare life, and its lack of relationalities of power: in other
words, an impossibility of politics. The absence of a power relation is
not desirable because there is then no possibility of resistance. We have
nothing but a form of servitude or slavery. So, rephrasing it in
Foucauldian terms, Agamben’s argument is that we have moved from a relation of
power to a relationship of violence. Let us remind ourselves how Foucault describes such a
relationship and its contrast with a power relation: A relationship of violence acts upon a body
or upon things; it forces, it bends, it breaks, it destroys, or it closes off all possibilities. Its
opposite pole can only be passivity, and if it comes up against any
resistance it has no other option but to try to break it down. A power
relationship, on the other hand, can only be articulated on the basis of
two elements that are indispensable if it is really to be a power
relationship: that the ‘other’ (the one over whom power is exercised) is
recognised and maintained to the very end as a subject who acts; and
that, faced with a relationship of power, a whole field of responses,
reactions, results, and possible inventions may open up.54 In this
context it then makes sense when Agamben argues that the question we
should be addressing is not Is there any escape from power relations?
but, on the contrary, We do not see sovereignty as ‘an ontological
condition of the possibility of order as such’, as Sergei Prozorov
argues.55 In our view it is not inconceivable that there might be forms
of social and political organisation which would not entail a life under
the sway of sovereign power and would still represent a form of order,
though a very different one. They may well seem ‘wholly unintelligible’,
‘entirely meaningless,’ ‘outright inconceivable’ or even ‘quaintly
paradoxical’ when viewed from the framework of sovereign power.56
We are indeed issuing a call ‘to dispense with the very principle of
order’57 when it concerns an order founded on the sovereign ban. We
do not deny that the sovereign exception is constitutive of such an
order;58 we do deny that sovereign power constitutes the only possible
form of political life, and indeed that it constitutes a political life at all.
Since sovereign power relies on two things – first, the drawing of lines between forms of life,
and, second, the production thereby of a generalised bare life – there are two ways the
demand for a return to politics can be articulated: the refusal of sovereign distinctions and the
assumption of bare life. We elaborate what we mean by this in the remainder
of this article.
We need a new political structure absent the state of exception; an ethical refusal of line
drawing is the only way to prevent us all from becoming homo sacer.
Jenny Edkins, professor of international politics at Prifysgol Aberystwyth University (in Wales)
and Veronique Pin-Fat, senior lecturer in politics at Manchester Universit, “Through the Wire:
Relations of Power and Relations of Violence,” Millennium - Journal of International Studies
2005, PG 12)
To summarise the argument so far: Agamben argues that the drawing of lines between zoe- and
bios constitutes ‘the fundamental activity of sovereign power [that] is the production of bare life
as originary political element’.47 The problem with this, as he demonstrates, is that
‘bare life remains included in politics in the form of the exception, that is, as
something that is included solely through an exclusion’.48 It is this that leads
us to the camps and to his disheartening declaration that ‘ today … we are all
virtually homines sacri’ .49 Perhaps it is this conclusion that prompts William
Connolly to say that Agamben proffers a ‘logic of sovereignty’ which brings us
to ‘an historical impasse’ where no way out is disclosed.50 Against Connolly’s
reading, we suggest that Agamben’s contribution provides an insight into
ways in which sovereign power can be challenged and indeed its ‘logic’ or
grammar refused. As we have pointed out, the possibility of resistance is in
general not one which relies on an ‘escape’ or ‘emancipation’ from power
relations. Indeed, we have argued that such an escape leads us into the camps,
which are marked by such an absence of power relations. What we will call a
challenge to or contestation of sovereign power, on the contrary, entails a displacement of
sovereign power and a return to properly political power relations: a life of power. A challenge
to sovereign power’s creation of zones of indistinction (the concentration camp being the
paradigmatic example) cannot consist of a call for a reinstatement of classical politics, a
reinstatement of the distinction between zoe- and bios. Firstly, this is not a possibility because
the very distinction itself, and the lines that it draws, is ‘the fundamental activity of sovereign
power’.51 Secondly, the classical distinction requires that bare life can only be
included through an exclusion in the form of an exception. There cannot be a
return to a politics that maintains the distinction between zoe- and bios, or, in Agamben’s
words: There is no return from the camps to classical politics. In the camps, city
and house became indistinguishable, and the possibility of differentiating
between our biological body and our political body – between what is
incommunicable and mute and what is communicable and sayable – was
taken from us forever.52 Either way, whether through an emancipatory ideal or through a
reinstatement of classical politics, we would all remain homines sacri or bare life. However,
challenge may be possible not through emancipation or nostalgic return, but, as we will argue,
through either of two other strategies: first, through a refusal to draw lines and second, through
the assumption of bare life. We have argued that Agamben’s work demonstrates
that sovereign power is no longer a form of power relation in Foucauldian
terms but a relationship of violence (as his discussion of the camp shows).
Since this is the case, however paradoxical it may seem, challenges to sovereign power take
place when there is a demand for a return to properly political power relations, and take the
form of such a demand. Agamben’s injunction is that we must find ‘a completely new politics –
that is, a politics no longer founded on the exceptio of bare life’.53 If the zone of indistinction
has extended beyond the camp to embrace much of the rest of the world, then what we have is
an extension of bare life, and its lack of relationalities of power: in other words, an impossibility
of politics. The absence of a power relation is not desirable because there is then no possibility
of resistance. We have nothing but a form of servitude or slavery. So,
rephrasing it in Foucauldian terms, Agamben’s argument is that we have
moved from a relation of power to a relationship of violence. Let us remind
ourselves how Foucault describes such a relationship and its contrast with a
power relation: A relationship of violence acts upon a body or upon things; it
forces, it bends, it breaks, it destroys, or it closes off all possibilities. Its
opposite pole can only be passivity, and if it comes up against any resistance
it has no other option but to try to break it down. A power relationship, on the
other hand, can only be articulated on the basis of two elements that are
indispensable if it is really to be a power relationship: that the ‘other’ (the one
over whom power is exercised) is recognised and maintained to the very end
as a subject who acts; and that, faced with a relationship of power, a whole
field of responses, reactions, results, and possible inventions may open up.54
In this context it then makes sense when Agamben argues that the question
we should be addressing is not Is there any escape from power relations? but,
on the contrary, Is today a life of power available? Such a life of power would be a life of
potentialities and possibilities, a life in the field of power relations, resistance, and freedom:
in other words, a political life. It is important to make it clear that what we are talking about is
not a challenge to a particular sovereign order, but to sovereignty, or sovereign power, in
general, as a form of order that entails specific forms of life. We do not see sovereignty as
‘an ontological condition of the possibility of order as such’, as Sergei
Prozorov argues.55 In our view it is not inconceivable that there might be forms of social
and political organisation which would not entail a life under the sway of sovereign power and
would still represent a form of order, though a very different one. They may well seem
‘wholly unintelligible’, ‘entirely meaningless,’ ‘outright inconceivable’ or even
‘quaintly paradoxical’ when viewed from the framework of sovereign
power.56 We are indeed issuing a call ‘to dispense with the very principle of
order’57 when it concerns an order founded on the sovereign ban. We do not
deny that the sovereign exception is constitutive of such an order;58 we do
deny that sovereign power constitutes the only possible form of political life,
and indeed that it constitutes a political life at all. Since sovereign power relies on
two things – first, the drawing of lines between forms of life, and, second, the production
thereby of a generalised bare life – there are two ways the demand for a return to politics can
be articulated: the refusal of sovereign distinctions and the assumption of bare life. We
elaborate what we mean by this in the remainder of this article.
Law/Life Alternative
The Alt is to loosen the artificial linkage between the concepts of “state” and
“law” – failure to do so will result in global civil war
Agamben 05, Giorgio Agamben, professor of aesthetics at the University of Verona and
author of ten books, titled: State Of Exception, pages 86-87
The aim of this investigation—in the urgency of the state of ex- ception “in which we live”—was to bring to light the fiction that
governs this arcanum imperii [secret of power] par excellence of our time. What the “ark” of power contains at its center is the
state of exception—but this is essentially an empty space, in which a human action with no relation to law stands before a norm with no relation to life. This does not mean that the machine,
with its empty center, is not effective; on the contrary, what we have sought to show is precisely
that it has continued to function almost without interruption from World War One, through
fascism and National Socialism, and up to our own time. Indeed, the state of exception has today
reached its maximum worldwide deployment. The normative aspect of law can thus be obliterated and contradicted with impunity by a governmental violence that— while ignoring
international law externally and producing a permanent state of exception internally—
nevertheless still claims to be applying the law. Of course, the task at hand is not to bring the state of exception
back within its spatially and temporally defined boundaries in order to then reaffirm the primacy of a norm and of rights that are
themselves ulti- mately grounded in it. From the real state of exception in which we live, it
is not possible to return to
the state of law [stato di diritto], for at issue now are the very concepts of “state” and “law.” But if
it is possible to attempt to halt the machine, to show its central fiction, this is because between
violence and law, between life and norm, there is no substantial articulation. Alongside the
movement that seeks to keep them in rela- tion at all costs, there is a countermovement that,
working in an inverse direction in law and in life, always seeks to loosen what has been artificially and violently linked. That is to say, in the field of tension of our culture, two opposite forces act, one that institutes
and makes, and one that deactivates and deposes. The state of exception is both the point of their maximum
tension and—as it coincides with the rule—that which threatens today to render them
indiscernible. To live in the state of ex- ception means to experience both of these possibilities
and yet, by always separating the two forces, ceaselessly to try to interrupt the working of the
machine that is leading the West toward global civil war.
The Alt is to show the non-relation of life and law – it’s key to stopping the
biopolitical machine from producing bare life
Agamben 05, Giorgio Agamben, professor of aesthetics at the University of Verona and
author of ten books, titled: State Of Exception, pages 87-88
If it is true that the articulation between life and law, between anomie and nomos, that is produced by
the state of exception is effective though fictional, one can still not conclude from this that
somewhere either beyond or before juridical apparatuses there is an immediate ac- cess to
something whose fracture and impossible unification are repre- sented by these apparatuses.
There are not first life as a natural biolog- ical given and anomie as the state of nature, and then their implication in law through the
state of exception. On the contrary,
the very possi- bility of distinguishing life and law, anomie and nomos,
coincides with their articulation in the biopolitical machine. Bare life is a product of the machine
and not something that preexists it, just as law has no court in nature or in the divine mind. Life
and law, anomie and nomos, auctoritas and potestas, result from the fracture of something to which we
have no other access than through the fiction of their articulation and the patient work that, by
unmasking this fiction, separates what it had claimed to unite. But disenchantment does not restore the
enchanted thing to its original state: According to the principle that purity never lies at the origin, disenchantment gives it only the
possibility of reaching a new condition.
To show law in its nonrelation to life and life in its nonrelation to
law means to open a space between them for human action, which once claimed for itself the
name of “politics.” Politics has suffered a lasting eclipse because it has been contaminated by
law, seeing itself, at best, as constituent power (that is, violence that makes law), when it is not
reduced to merely the power to negotiate with the law. The only truly political action,
however , is that which severs the nexus between vio- lence and law. And only beginning from
the space thus opened will it be possible to pose the question of a possible use of law after the
deac- tivation of the device that, in the state of exception, tied it to life. We will then have
before us a “pure” law, in the sense in which Benjamin speaks of a “pure” language and a “pure” violence. To a word
that does not bind, that neither commands nor prohibits anything, but says only itself, would
correspond an action as pure means, which shows only it- self, without any relation to an end.
And, between the two, not a lost original state, but only the use and human praxis that the
powers of law and myth had sought to capture in the state of exception.
Responsibility Alternative
The Alternative is to unassume non responsibility? I’m not entirely sure if this
could make a useful card, or if it makes sense at all
Mills, author, 2008
Catherine, Catherine Mills is the author of many books, including “Futures of Reproduction:
Bioethics and Biopolitics” and “Lured into Dawn”, 2008. Online book, pages 98-99, “Philosophy
of Agamben”. Acumen Publishing, database: ProQuest ebrary.
[[[But if we grant this argument for the moment, we can at least see why Agamben
concludes that ethical discourse should be freed from juridical contamination. That is, if all
normative or regulative discourse is struck by a legitimation crisis, then to the extent that
ethics relies on or is derived from that discourse, it suffers from the same problem. This
means that there is an onus on Agamben to provide an alternative set of ethical concepts that
supplant the reliance on guilt and responsibility. In this regard, he turns to the idea of an
“unassumable non-responsibility”. However, if responsibility is “irremediably contaminated by
law”, the simple reversal of assuming responsibility into its opposite is unimaginative on
Agamben’s part. This is especially so given that he provides no indication why this negation itself
does not already incorporate the juridicism he wishes to avoid. In other words, there is a
question about whether the simple turn from responsibility to non-responsibility is sufficient to
eradicate all traces of juridicism from the thinking of ethics.
Further, while he suggests the necessity of a “confrontation with a responsibility that is
infinitely greater than any we could ever assume” (RA: 21), such that all one can do is be faithful
to it by asserting its unassumability, there is little further clarification of what such a “nonresponsibility” might entail at either a conceptual or practical level. Certainly, the idea of a
responsibility that is greater than that which can be assumed by the subject has precedent in
the work of Emmanuel Lévinas. He argues throughout his works such as Otherwise than Being
that responsibility precedes and exceeds the ethical subject and thereby holds the subject
hostage to the Other. But Agamben rejects Lévinas’s theorization of responsibility on the basis
that it “transformed the gesture of the sponsor [that is, an originally juridical concept] into the
ethical gesture par excellence” (RA: 22). That is, rather than escaping the juridical form,
Lévinas’s ethics presupposes it. Consequently, if it is to be genuinely non-juridical, Agamben
cannot derive his understanding of an unassumable non-responsibility from Lévinas. I shall
return to a closer examination of the idea of an unassumable nonresponsibility and Agamben’s
rejection of Lévinas’s ethics in the following section on subjectivity and responsibility.]]]
Sovereignty Alternative
The alt is to destroy the sovereign authority
Kotsko, professor, June 4th, 2013
Adam, Adam Kotsko is Assistant Professor of Humanities at Shimer College in Chicago and the
translator of Giorgio Agamben, June 4th, 2013“How to Read Agamben”, Los Angeles Review of
Books, http://lareviewofbooks.org/essay/how-to-read-agamben
Many critics of the War on Terror, including Judith Butler, have used Agamben’s terminology to
mount a kind of moral critique of American foreign policy. One might say, for instance, that the
US government is wrong to create a kind of exceptional law-free zone in Guantánamo Bay,
because that results in turning the detainees into bare life — which is bad. And certainly it is; yet
Agamben’s political work is a little too complex to fit easily into this kind of moralizing discourse.
For Agamben, the answer to the problem posed by sovereign power cannot be to return to
the “normal” conditions of the rule of law, because Western political systems have always
contained in their very structure the seeds that would grow into our universalized exception.
It can’t be a matter of refraining from reducing people to “bare life,” because that is just what
Western legal structures do. The extreme, destructive conjunction of sovereign authority and
bare life is not a catastrophe that we could have somehow avoided: for Agamben, it
represents the deepest and truest structure of the law.
Now may be the time to return to that Kafka story about Alexander the Great’s horse
Bucephalus, entitled “The New Attorney.” (The text is available here. I recommend you take a
moment to read it — it’s very short, and quite interesting.) In this brief fragment, we learn that
Bucephalus has changed careers: he is no longer a warhorse, but a lawyer. What strikes
Agamben about this story is that the steed of the greatest sovereign conqueror in the ancient
world has taken up the study of the law. For Agamben, this provides an image of what it might
look like not to go back to a previous, less destructive form of law, but to get free of law
altogether:
One day humanity will play with law just as children play with disused objects, not in order to
restore them to their canonical use but to free them from it for good…. This liberation is the task
of study, or of play. And this studious play is the passage that allows us to arrive at that justice
that one of Benjamin’s posthumous fragments defines as a state of the world in which the world
appears as a good that absolutely cannot be appropriated or made juridical.
The law will not be simply done away with, but it is used in a fundamentally different way. In
place of enforcement, we have study, and in place of solemn reverence, play. Agamben believes
that the new attorney is going the state of emergency one better: his activity not only suspends
the letter of the law, but, more importantly, suspends its force, its dominating power.
Agamben’s critical work always aims toward these kinds of strange, evocative
recommendations. Again and again, we find that the goal of tracking down the paradoxes and
contradictions in the law is not to “fix” it or provide cautionary tales of what to avoid, but to
push the paradox even further. Agamben often uses the theological term “messianic” to
describe his argumentative strategy, because messianic movements throughout history — and
here Agamben would include certain forms of Christianity — have often had an antagonistic
relationship to the law (primarily, but not solely, the Jewish law, or Torah). Accordingly, he
frequently draws on messianic texts from the Jewish, Christian, and Islamic traditions for
inspiration in his attempt to find a way out of the destructive paradoxes of Western legal
thought.
In his most recent book to appear in English, The Highest Poverty: Monastic Rules and Form-ofLife (2011; 2013), Agamben conducts a detailed study of Christian monasticism, which he
believes to be essentially a messianic movement. Not only was the movement founded and
renewed by people who were unsatisfied with mainstream institutions claiming to represent a
historical claimant to the title of messiah (namely Jesus), but they also display a particularly
paradoxical relationship to the law. On the one hand, the monastic life is regulated down to the
smallest detail, creating the impression that it represents the strictest possible form of law (an
impression that is reinforced by the existence of detailed lists of punishments for infractions).
On the other hand, monastic thinkers have always insisted that their rules are something other
than laws. Where secular law aims to provide boundaries to life through the imposition of
prohibitions and punishments, monastic rules aim to positively shape the life of the monks.
What is at stake in monasticism is thus not the enforcement of norms, but the very form of the
monk’s life. Agamben believes that this blurring of the boundary between rule and life, to the
point where they become indistinguishable, is a concrete historical attempt to achieve
something like the state of “study or play” that he recommends in State of Exception. He finds
the Franciscan movement to be particularly radical in this regard, and much of The Highest
Poverty takes up the task of analyzing how the Franciscans were ultimately brought into the
mainstream of Christianity, so that we can avoid the same pitfalls in our contemporary efforts to
find some way to escape the destructive killing machine we call the law.
IV.
Based on what I’ve said so far, Agamben’s work may appear to be very systematic — and he
reinforces that impression by elaborately dividing the project that began with Homo Sacer into
various volumes and sub-volumes. What is most appealing about Agamben’s work to me,
though, is not its systematicity but its open-ended and exploratory nature. For instance, in State
of Exception, he notes how frequently modern governments have declared a state of emergency
due to economic conditions, and that ultimately led him into his vast exploration of the concept
of “economy” in The Kingdom and the Glory: For a Theological Genealogy of Economy and
Government (2007; 2011). That book, surprisingly, wound up encompassing the history of the
Christian doctrine of the Trinity (and included a particularly satisfying chapter that presents the
angels as God’s bureaucrats). In The Highest Poverty, Agamben notes that the monks seem to
be continually tempted to turn their entire life into a continual act of worship — which led him
to conduct a study of liturgy and its influence on contemporary concepts of ethical duty. (That
book is forthcoming later this year, under the title Opus Dei: An Archeology of Duty.)
For this reason, I think that the best way into Agamben’s work may not be his better-known
political writings, but the short and fragmentary book The Open: Man and Animal (2002; 2004).
It contains several unforgettable passages — perhaps most notable is the story of an
unfortunate tick that was deprived of all sensory input by researchers and persisted in this state
for nearly two decades. This leads Agamben to ask a series of probing questions that have
implications far beyond the fate of a tick:
But what becomes of the tick and its world in this state of suspension that lasts eighteen years?
How is it possible for a living being that consists entirely in its relationship with the environment
to survive in absolute deprivation of that environment? And what sense does it make to speak
of “waiting” without time and without world?
I expect that The Open will challenge almost everyone’s preconceptions about animals in some
way. It’s not clear how all the pieces of Agamben’s argument fit together, but this only increases
the book’s effectiveness for me: it’s not a definitive answer to the question of how humans and
animals relate, but a book to think with.
Reading The Open — or other Agamben books in a similar vein, such as The Coming
Community (1990; 1993) or Nudities (2009; 2010) — before coming to the more imposing
political works may be useful, as they help to clarify the way Agamben thinks before one is faced
with the issue of what he thinks. For all their sweeping ambition and programmatic claims, the
political works fundamentally represent the same fragmentary and improvisational style of
intellectual exploration as the more miscellaneous entries in Agamben’s canon; in all his
writings, he exemplifies the “study or play” with the Western cultural and political tradition that
he advocates. Whatever else Agamben’s works manage to achieve, they may ultimately be most
successful when they serve to invite us to join him in the serious pursuit of study as play.
2NC Alternative Solves
The refusal to draw lines is necessary to having a proper political power relation
and any social change.
Jenny Edkins, professor of international politics at Prifysgol Aberystwyth University (in Wales)
and Veronique Pin-Fat, senior lecturer in politics at Manchester Universit, “Through the Wire:
Relations of Power and Relations of Violence,” Millennium - Journal of International Studies
2005, PG 23)
Conclusion We have traced how sovereign power, that form of rule that today pervades the
globe, produces bare life as the form of life under its sway. We have argued here that, despite
appearances, sovereign power is most productively considered not as a form of power relation
but rather as a relationship of violence. In that it seeks to refuse those whose lives it controls
any politically valid response, it operates as a form of technologised administration. A power
relation is one that is invariably accompanied by resistance: the subjects it produces are party to
the relation, and their resistance is a necessary component of what is happening. Sovereign
power on the other hand, with its production of bare life, not political subjects, attempts to
rule out the possibility of resistance. A properly political power relation is not practicable in
those circumstances. What this tells us is that to contest sovereign power we need something
different. In challenging sovereign power we are not facing a power relation but a relationship
of violence, one that denies a political voice to the form of life it has produced. Resistance such
as would be possible from within a power relation, and indeed as an inherent part of it, cannot
take place. Other forms of opposition must be found, forms that seek to reinstate a properly
political relationship. Two strategies of contestation were suggested: a refusal to draw lines
and an assumption of bare life. First, the refusal. The drawing of lines between forms of life is
the way in which sovereign power produces bare life. That drawing of lines must be refused,
wherever the lines are drawn. Negotiating the precise location of the lines remains within the
violence of sovereign power. A refusal to draw any line between forms of life, on the other
hand, takes away the ground upon which sovereign power is constituted. Second, the
assumption. When life is produced as bare life it is not helpful for that life to demand its
reinstatement as politically qualified life. To do so would be to validate the very drawing of
lines upon which sovereign power depends and which produces life as bare life in the first
place. An alternative strategy is the taking on or what we have called the assumption of bare
life. Through this strategy the subject at one and the same time both acknowledges its status
as nothing but life and demands recognition as such. It refuses the distinction between bare life
and politically qualified life. As is apparent, the two strategies are at heart the same. Both
seek to overturn the denial of politics that has taken place under biopolitics and to reinstate
properly political power relations , with their accompanying freedoms and potentialities. We
have discussed an example of what such contestation of sovereign power might look like.
Practices that challenge or refuse sovereign power are apparent in many locations: whether in
hunger strikes or street demonstrations, creative ways of provoking sovereign power and
embroiling it into a political or power relation have been and are being found, through the
wire.
The use of violent dissent will be successful in solving the state of exception –
empirics prove.
McQuillan 15 – Lecturer in Creative and Social Computing at Goldsmiths, University of
London (Dan; PhD in Experimental Particle Physics, Director of E-communications for Amnesty
International, co-founder of Social Innovation Camp; “Algorithmic States of Exception;”
European Journal of Cultural Studies 18(4/5); SAGE Journals; 01/07/15;
http://ecs.sagepub.com.proxy.lib.umich.edu/content/18/4-5/564.full.pdf+html)
Means of resistance
When considering what is to be done about the state of exception, Agamben draws on the ideas
of Walter Benjamin, specifically the possibility of pure violence or pure means. Benjamin’s
(1995) line of thought is laid out in his essay ‘On the Critique of Violence’, which sets out to
escape the forms of violence (e.g. state vs revolutionary) that are offered as alternatives but in
fact co-define each other. He asserts that ‘all violence as a means is either law-making or lawpreserving’. By this he means that violence either plays a part in constituting a new situation or
is carried out by institutions trying to preserve the status quo. Taken together, these forms of
violence are mythic in the sense that they form an inescapable cycle. Moreover, they can never
be easily separated because the practice of law-preserving always involves extension into
constituting new sanctions. Benjamin’s escape is a ‘pure means’ that breaks the cycle of mythic
violence. So in Benjamin’s mostly abstract reasoning, we have a model for contesting states of
exception, according to Agamben (2005), because it does not ultimately rest on the authority of
a legal framework which has ‘at its centre the state of exception – [which] is essentially an
empty space’ (p. 86). Against a space that is devoid of law, we have a resistance that escapes the
cycle of law-making and law-preserving. In the remainder of this article, I take this approach to
suggesting lines of resistance to algorithmic states of exception. I do this through two historical
examples that, I suggest, crystallise Benjamin’s and Agamben’s ideas as concrete social
possibilities. I link each historical example to signs of similar modalities in contemporary
struggles, and ask whether they constitute viable starting points for resistance.
The first historical example is antinomianism, which manifested itself in the 13th and 14th
centuries through the movement known as the Brethren of the Free Spirit. For the Brethren of
the Free Spirit, God was immanent in everything and could therefore be directly experienced
(Cohn, 1970). Those who were able to share this experience of oneness considered that they
had moved beyond religious morality and earthly authority. As one said defiantly to his
inquisitor, ‘Those who are in this degree of perfection and in the freedom of spirit are no longer
obliged to obey men, or any precept, or the rules of the Church: they are truly free’ (Vaneigem,
1998). The message was one of a radical freedom through a direct immersion in the very ground
of being. Although heavily repressed, antinomianism frustrated the Inquisition by frequently
resurfacing and led directly to later currents of social change such as the Levellers and Ranters
of the English Civil War (Hill, 1991). We can still experience some of their intoxicating
irreverence through surviving texts such as Abiezer Coppe’s (1973 [1649]) ‘A Fiery Flying Roll’,
whose fiery rhetoric is designed to punch through rational understanding. Antinomianism as a
philosophy and social practice fits Benjamin’s description of action from the outside that neither
creates nor preserves law. I suggest that we can hear an echo of antinominianism in the
contemporary social movement known as Anonymous.
Anonymous is a social movement with roots in the taboo-breaking irreverence of the online
image board 4chan. It was constituted through Operation Chanology, a set of actions against the
Church of Scientology. While Anonymous is difficult to pin down using any of the traditional
categories of ethics, sociology or history (Coleman, 2011), it draws its strength from a deep
immersion in the technical ground of the Internet and finds affinity through the subcultural
memes that move freely across the web. It rejects external morality or constraints and features
calls for absolute freedoms, especially freedom of speech. The splinter group Lulzsec was a
breakaway from Anonymous that specialised in hacking into private security firms and state
surveillance agencies. It combined its online dumping of hacked data with ranting statements
filled with a sense of revelation about the state of the world and the new apparatus. It was
Anonymous at its most antinomian, marked by a mocking contempt for worldly powers in the
form of corporations and governments. Lulzsec’s (2011) final communiqué ‘50Days of Lulz’ is a
hacker version of Coppe’s ranter rhetoric. While experiencing its own version of the Inquisition
in the form of Federal Bureau of Investigation (FBI) sting operations, Anonymous has multiplied
and spread offline, with the signature Guy Fawkes masks visible at protests across the globe.
Most importantly, for the purposes of this article, the antinomian activism of Anonymous and
Lulzsec has been disruptive of the data-fuelled apparatus of prediction and control. Lulzsec
targeted agencies and companies who are avowedly spying on us by hacking into their
databases and, in a kind of ritual inversion of the operations of those companies, releasing their
data to the public. Anonymous sought more broadly to disrupt the apparatus of control, for
example, through Distributed Denial of Service attacks that overloaded the websites of
organisations they saw as complicit. I suggest, therefore, that the countercultures of the
Internet are already generating forms of resistance that disrupt algorithmic enclosure without
themselves engaging in the cycle of law-making and law-preserving.
Agamben makes it clear that only people’s own determination can be relied on to challenge the
state of exception. The task is not to confine the state of exception by appealing to rights and
norms that are ultimately founded on it. ‘To show law in its nonrelation to life and life in its
nonrelation to law means to open a space between them for human action’ (p. 88), Agamben
(2005) writes. The second historical example shows such human action in a form we could call
pure norms, that is, values that enact themselves with an internal consistency that does not
appeal to an already captured system. The events in question are the 18th century food riots, as
analysed by E.P. Thompson (1993) in his book Customs in Common. Dispelling the food riots as
an instinctive response to hunger, he discovers that the central action is not looting but ‘setting
the price’. People collectively appropriated the grain from farms and granaries to be sold at an
affordable price. As the Sheriff of Gloucestershire wrote in 1766,
They returned in general the produce (i.e. the money) to the proprietors or in their absence left
the money for them; and behaved with great regularity and decency where they were not
opposed, with outrage and violence where they was: but pilfered very little.
Here, we have a picture of ordinary people intervening to correct what they see as excess,
without relying on a legal framework. Thompson referred to it as ‘a moral economy’. I suggest
that a similar re-assertion of normative relations without an appeal to law is present in the
practice of Cryptoparties.
The idea of Cryptoparty was conceived in August 2012, following a Twitter conversation
between Australian privacy advocate Asher Wolf and computer security experts in the wake of
the Australian Cybercrime Legislation Amendment Bill (Blum-Dumontet, 2012), and the do-ityourself (DIY) movement quickly spread with Cryptoparties popping up in cities across Australia,
United States, United Kingdom and Germany. They are peer-learning events where people share
their knowledge and skills to ensure that private online chats stay private and that email and
web browsing are as secure and anonymous as possible. Rather than trying to explain the
complex mathematical concepts behind cryptography, cryptoparties encourage people to look
at the landscape of tracking and surveillance and to develop a sense of how they can raise the
barrier to big data collection from their online activities. The shared ethos is a deep unease with
the current direction of travel revealed by pervasive corporate tracking and blanket state
surveillance. As Smari McCarthy has argued, the aim of easier-to-use encryption is to raise the
cost for the NSA and the other intelligence agencies, by forcing them to use scarce human
resources to apply specific targeted techniques, or to use a lot of costly processing power to
break the encryption: They can scoop up the data of 2.5 billion internet users, making the cost
per person per day a mere 13 cents. My five-year plan is to increase that cost to $10,000 per
person per day. (McCarthy, 2014) Thus, Cryptoparties can also be seen as an example of
autonomous price-setting, motivated by community norms acting in the space between law and
life.
2NC Bear Witness
The 1AC only perpetuates sovereign violence. We have an ethical obligation to
bear witness to those who are oppressed by sovereign violence, by doing so
“through the wire”.
Jenny Edkins, professor of international politics at Prifysgol Aberystwyth University (in Wales)
and Veronique Pin-Fat, senior lecturer in politics at Manchester Universit, “Through the Wire:
Relations of Power and Relations of Violence,” Millennium - Journal of International Studies
2005, PG 16)
The protest we began with, that of Abbas Amini in the UK, is not unique. Two months later,
Shahin Protofeh, a fellow Iranian, did the same in protest at being deported by the British
Home Office on refusal of his application for asylum.63 In Wales Atiquilla Kousha gave up his
similar form of protest after ‘assurances that his case will be dealt with fairly’.64 And, in
Scotland, three Kurdish refugees staged a hunger strike and sewed their lips in response to the
UK government’s decision to deport them to Iran.65 There have been cases outside the UK too:
in February 2004 Mehdy Kavousi, an asylum seeker from Iraq who had sewn his eyes and lips
shut, took part in a demonstration against mass deportations outside the Dutch parliament.66
Perhaps the most high-profile case of refugees protesting by going on hunger strike and sewing
their lips occurred during January 2002 at the Woomera detention camp in Australia.67Reports
vary but between 60 and 100 refugees sewed their lips and more than 200 others staged a
hunger strike in protest against the ‘slow processing of protection visasand the mandatory
imprisonment of illegal immigrants’.68Woomera was one of the three largest detention camps
under the jurisdiction of the Australian government run by a private operator, Australasian
Correctional Management.69 Since late 1989 Australia has, controversially, been operating a
policy of mandatory and nonreviewable detention of people arriving without documentation
since late 1989. The policy has enjoyed the bi-partisan support of successive Labor and Liberal
governments. On the one hand, detention is regarded as necessary for maintaining
immigration control and, on the other, it is endorsed as a deterrent for those seeking to arrive
in Australia in a similar manner.70 Whilst it is not the aim of this article to critically discuss the
immigration policies of any particular government in detail, the cases of refugee protest in
Australia, especially, are salient in exploring whether today a life of power is available. 71
Certain, albeit limited, parallels can be drawn between detention camps and the
concentration camps , if only in the sense that both can be identified as examples o f modes
of being where there are no power relations and resistance is impossible: sites that mark a
state of exception. For Agamben, the camp is a paradigmatic example of a zone of
indistinction which consists in the materialisation of the state of exception and the creation
of a space in which bare life and the juridical rule enter into a threshold of indistinction . . . a
space in which normal order is defacto suspended and in which whether or not atrocities are
committed depends not on law but on the civility and ethical sense of the police who
temporarily act as sovereign.72 Refugees fall outside what might be called the normal law:
their liberty may be suspende d for no other reason than their having arrived within a
territory which is not their own; they can be held for what amounts to an indeterminate
amount of time whilst their applications are processed; and, depending on the state within
which they are being held, aspects of the United Nations Refugee Convention may be violated,
including access to a lawyer, review of cases, and the principle of non-refoulement.73 One
might say that ‘the sovereign law is defined by its capacity to transgress itself with respect to
aliens’.74 In short, refugees are produced in a state of exception as not politically qualified
lives but bare life . Perhaps unsurprisingly, the majority of refugee protests involving hunger
strikes and lip-sewing have been staged by people held in immigration detention or reception
centres, such as Woomera and Curtin in Australia and Sangatte in France.75 Four people in
Nauru, an ‘off-shore processing centre’ constructed as part of Australia’s ‘Pacific Solution’, also
protested in the same way. Twenty-three days into their hunger strike, they commented that
‘still no one felt regarding us, and no one consider regarding our problem.... Meanwhile as we
are despair from DIMIA authority ... [w]e are human’.76But, equally importantly, such protests
are not confined to those detained in this way. The protest cases in the UK, for example, are of
refugees waiting in the community for their asylum applications to be processed. Asalient
feature of the UK refugees ’ accounts of their reasons for protesting is that they also refer to
being in a state of exception – the ways in which the law is suspended in their cases. Kousha,
Protofeh,Gravindi, Haydary and Haidari, for example, cite the violation of the principle of nonrefoulement: that those who fear persecution ‘will not be returned to the source of their
persecution’.77 In the case of Amini, his reasons were the conditions and procedures of asylum
more generally even though he was ultimately successful in his asylum claim. Zones of
indistinction therefore need not necessarily be marked by razor wire. Rather, what marks
them is the production of life as bare life by sovereign power. The experiences that emerge
from these refugees’ own accounts of bare life include despair, hopelessness, isolation,
rightlessness, invisibility, and voicelessness. The risk of speaking or speaking for is apparent
here, and ‘acts of charity and the tacit demand that refugees be made to ask for fundamental
protections are themselves acts of intolerable violence’.78 Speaking engages sovereign power
inevitably in its own language. It also risks reincorporation. However, it is possible that some
forms of verbal expression escape those constraints: poetry, for example .79 One interesting
example is the poem written by Mehmet Al Assad , an asylum seeker incarcerated in
Australia.80The poem begins with a request, aimed directly at the reader: ‘Will you please
observe through the wire/ I am sewing my feet together/ They have
walked about as far/ as they ever need to go’.
The second stanza again calls on us
to observe, and tells how the refugee is sewing his heart together:
ashes of my days/ it will not hold any more’.
‘It is now so full of the
The final verse reiterates:
‘One
last time/ please observe/ I am sewing my lips together/ That which you
are denying us/ we should never have/ had to ask for’.
Prem Kumar Rajaran
points to the way in which Al Assad’s poembuilds up to a final demand, not of a beseeching
other begging to be let in as an act of charity, but a powerful demand from the other who has a
fundamental claim: that which you are denying us we should never even have had to ask for.
The subject is hostage to the other, is fundamentally entwined with the other.81 It is a
challenge to the boundedness of territory and demonstrates the harsh violence of sovereign
power and the way in which it produces intolerable distinctions.It is interesting how the
poem calls upon us, its readers, to observe ‘through the wire’. 82We may, indeed, be on the
other side of the wire, but the poem does not let us remain there. It asks us to look through
the fence that divides us from the asylum seeker, and to recognise our radical relationality.
We are called upon to reflect on the lines (the wire) of sovereign power, while at the same
time being summoned to move beyond them. Al Assad does not let us forget that we are
implicated in the distinctions that are made. We are denying entry to the asylum seeker: it is
with us, not with sovereign power, that the responsibility for hospitality lies. Both citizen and
refugee are their own bare life. Al Assad calls for this to be acknowledged, and for sovereign
power to be displaced. The protests we have outlined above are examples of challenges that
assume bare life and thus transform bare life into form-of-life . The act of going on hunger
strike, sewing one’s lips and, in some cases eyes and ears, viscerally reveals and draws
attention to the refugees’ own person as the bare life produced by sovereign power : it is a
re-enactment of sovereign power’s production of bare life on the body of the refugee .83 It
illuminates the way in which sovereign power , when it lays claim to the liberal values of fair
process and human rights , relies on violence and exclusion. When Amini said that he sewed
up his mouth to give others a voice – that is, to demand that others speak for him as one who
cannot speak for himself – he took on the very bare life that sovereign power imposes on
him in order to unmask the relationship of violence in which he, and others, had been placed.
The only effective challenge to this relation of violence lies in the complete embrace of bare
life as a form-oflife , or, in Agamben’s words, ‘a form of life that is wholly exhausted inbare life
and a bios that is only its own zoe-’.84 Indeed we might say that the refugees’ sewn muteness,
deafness and blindness shows that our bare life is, indeed, all we have left under sovereign
power and illustrates the way in which ‘the possibility of differentiating between our
biological body and our political body – between what is incommunicable and mute and what
is communicable and sayable – was taken from us forever’.85 This assumption of bare life as
a form-of-life in itself, is in effect, also a refusa l. What is happening is that sovereign power’s
drawing of lines between bare life and politically qualified life is being refused and a politics
of radical relationality – power relations – put in its place. The taking on of one’s bare life
offers the possibility of its transformation into form-of-life and the reintroduction of a properly
political power relation. Sovereign power may or may not choose to engage at that level. It is
more than likely that a relation of violence will be reaffirmed, with such a protest being read not
as a political action but in other ways. In the case of protests in Australia, several routes were
employed. For example, the protest was seen as confirming the ‘outsider’ status of the asylum
seekers. The Immigration Minister, Phillip Ruddock, said Lip sewing is a practice unknown in our
culture but we’ve seen it before amongst detainees and it’s something that offends the
sensitivities of Australians. They believe it will influence decisions. It can’t and it won’t.86This
statement refuses to engage with the protests, writing them as culturally insensitive, alien and
misguided. Ruddock makes it clear that such protests ‘can’t and won’t’ influence policy: the
refugees are not politically qualified. As a refusal to engage with the refugees it continues a
relation of violence. It sidesteps the issue however: as we have seen, the demand of the
asylum seeker is not an attempt to influence policy – to change the rules about the treatment
of asylum seekers – but rather to question the very grounds upon which debates about policy
are premised. A second response was one that countered the challenge by accusing the
refugees of violence themselves. This occurred in two ways. First, they were accused of child
abuse. Prime Minister John Howard remarked:Do you really imagine that if an eight- or tenyear-old child begins to sew his or her lips together that a responsible parent would do other
than stop him or her? I’m not going to randomly brand people as child abusers. I don’t think it’s
responsible of me to do that. But I do know this, that the children in the proper, positive care of
their parents don’t sew their lips together, do they?87 Second, their action was scripted as selfmutilation, or in other words, violence on their own bodies: ‘everything is mobilised in order to
represent the violence that is inflicted and extorted from the bodies of refugees as selfgenerated’.88 The violence of sovereign power is assigned to the asylum seeker in the classic
gesture of denial and transference.It seems, then, that the asylum system attempts to remove
the possibility of a properly political power relation. The refugee, fleeing persecution
elsewhere and claiming a political right to asylum, clearly appears on the face of it as politically
qualified. Once refugees enter the UK, Australia or the Netherlands for example, they are
produced in the zone of indistinction of the camps as bare life, life that is not politically
qualified. Even the successful are no longer a political voice telling of oppression and
mistreatment but only lives to be saved. By their actions, the refugees we discuss demonstrate
that this is the case and in doing so attempt to claim back the possibility of speaking politically.
When they sew their mouths to give others a voice, that is, to demand that others speak for
them, or to insist that what they have been denied is something they should not have had to
ask for, they are assuming the very bare life that sovereign power imposes on them in order
to demonstrate the relationship of violence in which they have been placed. Like the nonviolent demonstrator who puts his body on the line, this strategy is particularly effective in
showing clearly that sovereign power does not willingly enter into a power relation but rather
survives though relationships of violence. To what extent are actions of the type we have
elaborated likely to be effective? Are they anything more than individual acts of protest that can
have little impact on collective politics? In his analysis of the multiple readings to which the
protest of the Australian asylum seekers gives rise, Joseph Pugliese suggests thatwhile the act of
sewing one’s lips together is, in one sense, about exercising a degree of power, autonomy and
control within the most desperately disempowering of spaces, the prison, in another seemingly
contradictory sense, the act of sewing one’s lips transcends the individual subject.... This
singular act of sewing the lips together … is already double: it conjoins the anguished body of
the individual refugee to the larger corpus of the nation in a complex relation of power and
violence.89 The act of sewing exposes the radical relationality of state and refugee. It
demonstrates how each is entangled within the other. Without sovereign power and its
distinctions there would be no refugee; without the refugee (the non-citizen) citizenship itself
would have no meaning. As we have seen, these acts are not carried out invisibly. They are a
demand addressed directly to those who observe ‘through the wire’, not a demand made on the
terms of sovereign power. In taking on their life as bare life, the protestors call for a direct,
unmediated, visceral response, life to life.
2NC Cede the Political
A state of exception leaves us with no relations of power only relations of
violence- concentration camps prove.
Edkins and Pin-Fat 05. Jenny Edkins, professor of international politics at Prifysgol
Aberystwyth University (in Wales) and Veronique Pin-Fat, senior lecturer in politics at
Manchester Universit, “Through the Wire: Relations of Power and Relations of Violence,”
Millennium - Journal of International Studies 2005, PG 8-11)
In Agamben’s analysis of sovereign power, the concentration camp is the ultimate expression
of the sovereign exception and the arena where all life becomes nothing but bare life , life
included by its exclusion: Inasmuch as its inhabitants have been stripped of every political status
and reduced completely to naked life, the camp is also the most absolute biopolitical space that
has ever been realised – a space in which power confronts nothing other than pure biological
life without any mediation. The camp is the paradigm itself of political space at the point in
which politics becomes biopolitics and the homo sacer becomes indistinguishable from the
citizen.31 In modern biopolitics, Agamben argues, the zone of indistinction exemplified in
the camp is no longer localised and the state of exception becomes the rule. The birth of the
camp signals the point at which ‘the political system of the modern nation state ... enters into
lasting crisis, and the State decides to assume directly the care of the nation’s biological
life’ .32 Bare life becomes the technologised subject of administration, governance and
discipline, and political life disappears: ‘The camp, which is now securely lodged within the city’s
interior, is the new biopolitical nomos of the planet’.33 This leads him to the question with
which we began this section: ‘Is today a life of power (potenza) available?’.34 For Agamben,
such a life is not possible within present forms of sovereign power and their reliance on the
division of pure living itself into forms of life. A life of power, which for Agamben is ‘a political
life’, would mean an exodus from sovereign power, a non-statist politics, and ‘the emancipation
from such a division’.35 It would entail ‘something like a form-of-life, a life for which living itself
would be at stake in its own living’.36 He goes on to elaborate what he means by this: ‘Only if I
am not already and solely enacted, but rather delivered to a possibility and a power [potenza] ...
only then a form of life can become, in its own factness and thingness, form-of-life, in which it is
never possible to isolate something like naked life’.37 When Agamben asks the question ‘Is
today a life of power available?’ the Italian term he uses for power is potenza, which, as
histranslator notes, ‘can often resonate with implications of potentiality as well as with
decentralised or mass conceptions of force and strength’.38 In the phrase ‘sovereign power’ he
uses the different term, potere, which ‘refers to the might or authority of an already structured
and centralised capacity, often an institutionalised apparatus such as the State’.39 It is potere or
sovereign power that ‘founds itself ... on the separation of a sphere of naked life from the
context of the forms of life’.40 Form-of-life, a life in which something like naked life cannot be
separated, is a life of power as potenza. Significantly, Foucault’s notion of relations of power
contains within it a sense of potentiality or possibility comparable to potenza. As we have seen,
freedom and resistance are a central part of Foucauldian power relations. A power relation
‘operates on the field of possibilities in which the behaviour of active subjects is able to inscribe
itself. It is a set of actions on possible actions’.41 Power as potenza in Agamben is the realm of
politics, or what we will call later properly political power relations. Bare Life as a Life without
Power Relations In this section, we suggest that when the insights of Foucault and Agamben are
combined there are unexpected implications for the notion of resistance, implications that are
to be found in the depoliticised and technologised administrative depths of the camp. We argue
that both Foucault and Agamben are gesturing towards the conclusion that bare life is a life
where power relations are absent, and, correspondingly, that life constituted within
biopolitics cannot be a political life . This moves us then towards the somewhat surprising
conclusion that far from seeking to escape power relations, we should be attempting to
reinstate them, and with them the possibility (and possibilities or potentialities) of politics.42
Sovereign power , despite its name , is not a properly political power relation, we will argue,
but a relationship of violence. For Foucault, power relations are a very specific form of social
relation: ‘power relations ... are distinct from objective capacities as well as from relations of
communication’.43Power as a relation is distinct from‘technical’ or ‘objective’ capacities. In
addition, a power relation is to be seen as distinct from a relationship of violence.
Arelationship of violence acts ‘immediately and directly on others’, whereas a relationship of
power ‘acts upon their actions’. 44 Slaves in chains, for example, are not in a power relation
but in a relationship of violence: Where the determining factors are exhaustive, there is no
relationship of power: slavery is not a power relationship when a man is in chains, only when he
has some possible mobility, even a chance of escape.... At the very heart of the power
relationship, and constantly provoking it, are the recalcitrance of the will and the intransigence
of freedom.45 For Foucault power relations and freedom occupy the same moment of
possibility. Resistance is inevitable whenever and wherever there are power relations.
Without power relations there is no possibility of resistance and no freedom. Taking this
insight from Foucault and turning the question of power on its head, we can begin to ask what
examples there might be, in practice, of a mode of being where resistance is impossible, and
hence where there is no power relation. It can be argued, following Agamben, that the
concentration camp is such an example. In the camp the majority of prisoners become what
is termed in camp jargon ‘Muselmänner.’ Primo Levi describes these as ‘the drowned’:Their life
is short, but their number is endless; they ... form the backbone of the camp, an anonymous
mass, continually renewed and always identical, of non-men who march and labour in silence,
the divine spark dead within them, already too empty to really suffer. One hesitates to call them
living: one hesitates to call their death death, in the face of which they have no fear, as they are
too tired to understand.46 The drowned are ‘bare life’ – their concerns are limited to where the
next mouthful of food is coming from – and they are also homines sacri, sacred men: they can
be killed at will by the camp guards, without ceremony and without justification having to be
offered or provocation demonstrated. More significantly for the argument here, the drowned
offer no resistance. Indeed they are indifferent to their fate. They are reduced to a state
wherethey are unable even to commit suicide: they do not have the possibility of killing
themselves as, even if there were ways in which they could engineer their own death, they no
longer have the will either to live or die. In Foucault’s terms, then, for the drowned of the
concentration camp there are no relations of power, only relations of violence. The camp
then is an example of where power relations vanish. What we have in the camps is not a power
relation. All we have is the administration of bare life. In the camps, for those inmates who
reached the depths, who faced the Gorgon, there were no relations of power, only relations of
violence. As we have noted, Agamben importantly argues that what took place in the camp as
a zone of indistinction has extended in the contemporary world to encompass regions
outside the camp as well. In the face of a biopolitics that technologises, administers and
depoliticises, and thereby renders the political and power relations irrelevant , we have all
become homines sacri or bare life.
2NC Emergency Now
America is stuck in a constant state of emergency
Keller, journalist, 2013
Jared, Jared Keller is a journalist living in Brooklyn, NY. His work has appeared in the Atlantic,
Bloomberg Businessweek, Al Jazeera America, the Los Angeles Review of Books, and the Verge,
6/12/13, “Why Don’t Americans Seem to Care About Government Surveillance?”, Pacific
Standard, http://www.psmag.com/politics-and-law/why-dont-americans-care-aboutgovernment-surveillance-60011
The late political scientist Clinton Rossiter called this America’s “crisis government.” The best
description that I’ve ever read for the phenomenon comes from Italian philosopher Giorgio
Agamben, who coined the term "the state of exception" to mean “a position at the limit
between politics and law ... an ambiguous, uncertain, borderline fringe, at the intersection of
the legal and the political” where an executive acts extralegally in order to preserve an
existing legal framework, effectively superseding the rule of law in order to save it.
But if terrorism and the resulting surveillance state have become accepted features of American
public life (which, according to the latest polls, they have), then the apparatus the government
deploys to adjudicate and prosecute our war on terror should become normalized in our existing
legal regime. The Patriot Act and National Emergencies Acts that provide the legal basis for the
modern surveillance state were supposed to be temporary "emergencies," but with their
continued re-authorization by Presidents Bush and Obama, they have become the norm.
We are lurching from emergency to emergency, living in a permanent state of exception.
Margot Kaminski, executive director of the Information Society Project at Yale Law School, puts
it nicely in The Atlantic: “Foreign intelligence is the exception that has swallowed the Fourth
Amendment whole.” This, I think, is the most significant impact of Snowden’s leak: not
necessarily to expose wrongdoing in the legal sense (since the sweeping dragnet of Prism and
the NSA’s monitoring of Verizon’s phone records are technically legal) but to take the abstract
legal concepts outlined under our emergency constitution and translate them into a political
reality in the minds of the American populace.
"I really want the focus to be on these documents and the debate which I hope this will trigger
among citizens around the globe about what kind of world we want to live in," Snowden told
The Guardian. "My sole motive is to inform the public as to that which is done in their name and
that which is done against them." The Pew/Washington Post poll may indicate that people are
comfortable with swapping liberty for security, but that doesn’t mean they’re comfortable with
an unaccountable, totally opaque, Kafka-esque security apparatus that falls in the legal gray
area of our ongoing state of exception.
There’s an historical anecdote that often crops up among political theorists and legal scholars
when they discuss the tradeoff between liberty and security during national emergencies.
Following the fall of the monarchy in 509 BCE, the Roman republic moved to establish an
executive branch that was headed by two co-equal magistrates, but the Romans recognized the
necessity of a unitary executive that could act swiftly and decisively in times of extreme crisis, if
only for a brief period of time. The only person to serve in this special constitutional role of
dictus in Roman history was Lucius Quintus Cincinnatus, a Roman statesman and aristocrat who
had previously served as counsel. Cincinnatus was elevated to the role of dictator in order to
repel an invading tribe, and, following a swift military victory, Cincinnatus relinquished his
authority, stepped down from the role of dictator, and returned to his life as a farmer.
Cincinnatus’ brief rule is often cited as a prime example of civic virtue, but for political theorists
like the late Clinton Rossiter, the Roman consul was an historical antecedent for a successful
constitutional dictatorship.
If the Pew data is any indication, the American people are amenable to the idea of a temporary
dictus state in times when imminent danger comes to the United States. But the whole goal of
leaks in general, let alone Snowden’s leak, is to ensure that citizens don’t become as habituated
to the emergency state as they have to terrorism, to rouse Americans from a period of
complacency to, somehow, recognize and rein in the emergency state when the intelligence
community cannot live up the the virtue and discipline of Cincinnatus.
In his Political Theology (1922), Carl Schmitt (1888-1985) established the essential proximity
between the state of emergency and sovereignty. But although his famous definition of the
sovereign as "the one who can proclaim a state of emergency" has been commented on many
times, we still lack a genuine theory of the state of emergency within public law. For legal
theorists as well as legal historians it seems as if the problem would be more of a factual
question than an authentic legal question.
2AC Agamben Wrong
Agamben exaggerates – dystopian ideas are too abstract and unrationally justified
Mihkelsaar, Doctor of Philosophy, 2015 (Janar. degree of Doctor of Philosophy, (PhD) in
Philosophy in June 25, 2015 by the Council of the Institute of, Philosophy and Semiotics, University of
Tartu, “Towards a Rethinking of Laclau and Mouffe's Conception of "Social Antagonisms": Agamben's
Critique of Relation.” Summer 2015.
http://search.proquest.com.proxy.lib.umich.edu/pqrl/docview/1695970830/fulltext/6445A76C915F4D56
PQ/2?accountid=14667)
the first displacement: the total concentration of power. In
reconstructing the juridico-political tradition of the West, Agamben
reduces the social bond to a rigid opposition between the "simple fact of
living" (zoê) and "the form or way of living" (bios), natural life and socio-political life.12 What, in
fact, is at stake in these oppositions is the limit type of relation of life and
law. The sovereign power, which decides on this nexus, includes life
within a juridical system by creating a limit zone in which life and law,
outside and inside, pass through one another and become
indistinguishable. "Bare life" (nuda vita) that dwells in this undecidable zone is
the homo sacer, who "may be killed and yet not sacrificed."13 The powerless bare life
Let us start with
is at the mercy of the all-powerful sovereign. "When a supreme will within the community," as Laclau asserts, "is not confronted by
Agamben's analysis, which assimilates "all
situations of being outside the law to that of homo sacer," is an
abstraction that rests on two unjustified presuppositions: firstly, that bare
life "is a naked individuality, dispossessed of any kind of collective
identity" and, secondly, that "the situation of the outsider is one of
radical indefension, wholly exposed to the violence of those inside the
city."15 Yet, these requirements are hardly, if ever, fulfilled. Agamben
exaggerates the extreme cases and ignores the fact that sovereignty"can
also be profoundly democratic, if it involves an articulating rather than a
determining power-that is, when it 'empowers' the underdog."16
Agamben's extreme idea of sovereignty should be replaced by a
conception of "hegemony" that captures far better the complicated sociopolitical reality and its hidden emancipatory possibilities. Let us proceed with the
anything, politics necessarily disappears."14
second displacement: the full elimination of power. In the essay "Über den Begriff der Geschichte," Walter Benjamin's last major
work, Benjamin states enigmatically in the eighth thesis: "The tradition of the oppressed teaches us that the'state of exception' in
which we live is the rule."17 The exemplary space in which the internal principle of a juridico-political order is completely
materialized as the norm is a concentration camp, where life is "exposed to an unconditional capacity to be killed."18 In the
permanent state of exception, the operative principle of the juridico-political tradition-i.e., the sovereign nexus between life and law
Agamben draws a dystopian picture according to
which Western history, from its beginning in the Greek polis, "represents
embodied by homo sacer-comes into view.
the unavoidable advance towards a totalitarian society."19 And the only
conceivable way out from this inhuman condition is to "put an end to the
civil war that divides the peoples and cities of the earth"-that is, to
eliminate political power altogether.20 Agamben is captivated by "the
myth of a fully reconciled society" that does away with all types of social
divisions.21 The possibility of politics, to sum up, is abolished when power
is either totally concentrated or, inversely, fully eliminated.
Agamben too pessimistic – he misses the point -- sovereignties have risen
and fallen,
Behrman, Expert in Law and works of Giorgio Agamben, 13 (Simon. Law School from
Birkbeck, University of London, LLB and MRes., published work on refugee law, policing and the use of
force, and the work of Giorgio Agamben. In recent years he has presented his work at academic
conferences in the UK, USA, Colombia, Egypt, Australia, India and Turkey. In 2008-2009 he was an intern
at the NGO Rights Watch (UK)., research scholar at the John W. Kluge Center at the Library of Congress,
Washington D.C., studying the US Sanctuary Movement and the Sans-Papiers in France., research
interests include: refugee law; legal history; legal theory, particularly the works of Evgeny Pashukanis,
Michel Foucault and Giorgio Agamben; the inter-relationship between law and politics; the history of
policing, and the law governing the use of force., publishing and work for a mental health charity. He has
spent many years as a political activist, “Giorgio Agamben in Perspective”. International Socialism. 10-713. http://isj.org.uk/giorgio-agamben-in-perspective/)
Agamben’s adoption of “biopolitics” involves a significant break
But
with Foucault
in another direction, one that, in my opinion, is wholly mistaken. In Foucault’s historical framework biopolitics represents a decisive
transformation that comes with the advent of modernity. Therefore, Foucault is able to historicise its development as concomitant
with the homo sacer
Agamben sees the roots of “biopolitics” stretching back much further to
the early Roman Republic or even earlier. The legal historian Anton Schütz
makes the point succinctly: “No way leads back to a space without
law…back to the homo non sacer”.27 In this pessimistic view, the
prevailing forms of dominance are not a historically contingent
phenomenon, but are rather deeply rooted in humanity’s distant past.
Agamben’s genealogy, while seductively erudite and revealing, appears to
relegate such epochal transformations as the collapse of the Roman
Empire, the Reformation and the French Revolution to mere staging posts
on sovereign power’s journey towards ever greater dominance. This has
the further effect of impressing upon the reader the idea that humanity’s
past gives us no precedent for successful resistance, much less the
destruction of sovereign power. To be sure, law and the state are
persistent forms of domination. But the fact that quite distinct models of
sovereignty have arisen and then fallen or been smashed at various times
with the transformation from one social form (feudalism) to another (capitalism). But
is missing in Agamben’s work. Andreas Kalyvas sharply and accurately critiques Agamben’s
historicism as an “almost totalistic, agentless history”.28 Further: [Agamben]
proposes a theory of history that does not seem to bring forth anything
new…an uninterrupted historical and philosophical continuity, embodied in the survival of sovereignty over a period of 25
centuries…sovereign biopolitics, Agamben implies, has uninterruptedly accompanied the ancients and the moderns alike, remaining
unaffected by critical events, such as the birth of the ancient-Greek democratic city…the emergence of commercial capitalism, the
modern discovery of rights, the invention of constitutionalism, the democratic revolutions of the late 18th century, and the entry of
the labouring masses into politics.29 Yet just occasionally Agamben appears to recognise the specificity of capitalist modernity in
Agamben describes “the fundamental
biopolitical structure of modernity” as one in which “the decision on the
value (or non-value) of life as such” is central.30 This appears to be an
acknowledgement of the uniqueness in how power confronts life under
capitalism—that is, with a ruthless calculation of value. As such, it is
possible to glimpse a point at which Marxism could be reconciled with
Agamben’s critique of sovereignty. Nonetheless, this remains, for
Agamben, an unexplored avenue—one closed off by the problems of his
historiography. State of exception: The opening line of Schmitt’s Political Theology—“Sovereign is he who decides on the
framing biopolitics. In the first volume of Homo Sacer,
state of exception,” which I quoted earlier—is a deceptively simple statement that exposes the liberal fiction of the rule of law as the
antinomy of the exception or the emergency situation. An idea deeply ingrained in Western capitalist democracies is that the rule of
law is the bulwark against barbarism, and systemic violence and oppression. Therefore, states of exception are by their nature seen
as unfortunate but temporary departures from this norm, necessary only for the defence of the system that guarantees the rule of
. The
rule of law that grants powers to the sovereign includes within those
powers the right of the sovereign to decide, in certain circumstances, that
the rule of law must be suspended. The declaration of a state of
emergency is an essential element in the exercise of sovereign power
because of this inseparable relationship between law and exception. Schmitt
law in the first place. But this circularity is, in fact, an accurate reflection of the relationship between norm and exception
celebrates this aspect of sovereign power as necessary for ensuring stability in periods of crisis.31 It is not surprising therefore that
Schmitt was to end up as a jurist in the service of the Nazi regime. What is surprising is that at the time he wrote Political Theology,
and throughout the 1920s, he was a staunch defender of the liberal-democratic Weimar Republic. As Agamben shows, Schmitt’s
ideological trajectory had more consistency than is often recognised. For in the legal sense, the Nazi state was not the negation of
Weimar but its continuation in extremis. Article 48 of the Weimar constitution allowed for the complete suspension of “fundamental
rights” in situations where “security and public order” were threatened. Hitler’s government used this article repeatedly throughout
its rule, regularly suspending the rule of law so that the situation was reversed: the state of emergency became the norm, and the
rule of law the exception. Yet the rule of law was suspended by legal means, using powers granted under the constitution. It was
therefore a form of “legal lawlessness”.32 It is instructive to note, as Agamben does, that Article 48 was also used repeatedly by
governments of the Weimar period to deal with the crises brought on by economic collapse and the threat of revolution.33 Thus, in
terms of using bourgeois law as a means of extreme repression, the Nazis merely followed the example of the Weimar Republic. The
fact that the path of Nazi power ended in the unique violence of the Holocaust has obscured the extent to which fascist rule could
be facilitated by the rule of law. But today capitalist democracies routinely use their own versions of the Weimar Constitution’s
Article 48, without a crisis of political legitimacy of the scale of the 1920s and, thankfully, without so far ending up with fascism. Of
course, the present circumstances are volatile and it is difficult to predict what course things will take. What is different today is the
relative stability and consistency that has been maintained over a significant period of time under de facto states of emergency. A
Walter
Benjamin. In the eighth of his Theses on the Philosophy of History he writes: “The tradition of the
oppressed teaches us that the ‘state of emergency’ in which we live is not
the exception but the rule. We must attain to a conception of history that
is in keeping with this insight. Then we shall clearly realise that it is our
theory of the state of exception, albeit one outlined in the vaguest of ways, is also found in the work of
task to bring about a real state of emergency”.34 It is clear what Agamben
takes from this aphorism, and also what he fails, or refuses, to take from
it. Like Schmitt, Benjamin identifies the state of emergency as immanent to law.
But he goes further by saying that the state of exception has itself become the norm. This insight, so fundamental to Agamben’s
work, is bookended by two things that Agamben ignores. For the eighth thesis is not a mere description of a state of affairs, but a
Benjamin
appears to be making a distinction between a pseudo “emergency
situation” and what he refers to as the “real” state of emergency. He is
therefore calling attention to the continuity between capitalist democracy
and dictatorship, and thus recognises the necessity for transcending law
to ensure true liberation. Nowhere does Agamben ever discuss this key
component of Benjamin’s analysis, despite repeatedly referring to this
passage of Benjamin’s throughout Homo Sacer. In “Critique of Violence” Benjamin writes: “[the]
call to action informed by the “tradition of the oppressed” for the “introduction of a real state of emergency”.
legal system tries to erect, in all areas where individual ends could be usefully pursued by violence, legal ends that can only be
realised by legal power”.35 In other words, law forces all human relations to be processed through its own peculiar form. This is
something that Agamben too understands and discusses in various ways in Homo Sacer. Benjamin then makes the distinction
between the right to strike in specific circumstances, and that of the general strike, which by its very nature goes beyond the realm
of the legal right to withdraw labour into a challenge to the authority of the capitalist state itself.36 Or put another way, an action
conferred by law becomes “violent” at the moment when it is exercised “in order to overthrow the legal system that has conferred
it”.37 The aspect of this piece on which most commentators focus is the identification of two types of violence (there is a third,
which I will come onto in a moment)—law-making and law-preserving. That is, violence used to create a legal entity, for example a
revolution, which leads to a new constitution or state; and violence deployed to preserve an existing state such as police violence or
a military coup. As such, “all violence as a means, even in the most favourable case, is implicated in the problematic nature of law
itself.” 38 The relevance of this idea for Homo Sacer is obvious. In the same way that these two forms of violence are immanent to
law, so too are the norm and the state of exception. The idea that law can be counterposed to either violence or the state of
exception is redundant. Instead, as China Miéville writes, “the chaotic and bloody world around us is the rule of law”.39
But in
his engagement with Benjamin, Agamben once again misses the
transformative element. For in Benjamin’s work the oscillation between
law-making and law-preserving violence can be transcended. The problem is that
Benjamin’s formulation throughout much of “Critique of Violence” is frustratingly allusive and contradictory. For one thing it is not
clear whether the type of transformative violence he advocates should be called “divine” or “pure” violence, and whether the
former is a positive thing or not. Benjamin’s use of Old Testament and ancient Greek myths obscures the issue even further.
However, in the conclusion to this piece Benjamin does achieve a lucid exposition that falls absolutely within the classical Marxist
tradition: On the breaking of this cycle maintained by mythic forms of law, on the suspension of law with all the forces on which it
depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded. If the rule of myth
is broken occasionally in the present age, the coming age is not so unimaginably remote that an attack on law is altogether futile.
But if the existence of violence outside the law, as pure immediate violence, is assured, this furnishes proof that revolutionary
violence, the highest manifestation of unalloyed violence by man, is possible, and by what means.40 It is telling that Agamben
quotes only up to the first sentence of this passage but no further and that he shies away at the point at which Benjamin makes his
clearest statement on the content of “pure” or “revolutionary” violence. This leads Agamben, in common with most academic
commentators on this text, to claim that Benjamin’s “pure” violence is impossible to pin down. It is not. It is clearly stated to be
“revolutionary violence” aimed at the destruction of the rule of law. Admittedly, beyond this rather general statement Benjamin
becomes rather obscure. Nevertheless, it is not true that Benjamin “offers no positive criterion for its identification”.41 Indeed,
taken together with the other key text of Benjamin’s on which Agamben relies, the eighth of the Theses on the Philosophy of
History, which calls for the rupturing of the norm/exception axis, it becomes clearer that “pure” violence is indeed that which breaks
At this
point it is worth reflecting on the most significant gap in Agamben’s work:
the absence of engagement with ideas about possible resistance to, or
transcendence of, the various manifestations of sovereign power. In Foucault’s
through the oscillation between the norm and the exception that ground the rule of law. The absence of resistance:
work, for example, struggle at all levels of society is often present and critical to the development of the new forms of power that he
identifies, and moreover he frequently recognises the underlying conflict that drives these changes.
Much of
Benjamin’s work, certainly the texts that Agamben engages with, is
concerned with how the apparent catastrophes of the modern age can be
transcended. Agamben also stands apart from most of the other celebrated critical thinkers of our time in this respect.
Antonio Negri, Judith Butler, Alain Badiou, Slavoj Zizek and Jacques Rancière all refer to concrete examples of resistance as well as
With Agamben, on the other hand, struggle is almost wholly
absent in his work, except occasionally at the level of ideas. He never
acknowledges anyone anywhere in Western history struggling from
below. Instead we are presented with a history of kings and clerics
devising new forms of power, assisted by theologians and philosophers.
being deeply engaged with theories.
(Although, given Agamben’s idealistic approach it sometimes appears the other way around where kings and popes merely assist the
theologians and philosophers in applying their ideas.) Agamben’s work therefore frequently offers a very pessimistic prognosis for
The picture we are presented with is of a sovereign power from
which there is no discernable means of escape. Reading Agamben, one
often feels as if this power resembles the Orwellian “boot stamping on a
human face—forever”. So while Agamben’s description of “bare life”
devastatingly captures the lives of those at the margins of society, what is
missing in his work is an understanding of how those groups have, even in
the depths of the Holocaust, resisted and fought back, and in doing so have resurrected
humanity.
themselves as active political subjects.
No Link—Agamben’s ideas won’t happen in the real world and history won’t
repeat itself exactly the same way as before
Gündoğdu, Assistant Professor at Columbia University, 11, (Ayten, Assistant professor
of Political Science at Bernard College at Columbia University, Potentialities of human
rights: Agamben and the narrative of fated necessity, July 19th, 2011, Contemporary
Political Theory, http://www.palgravejournals.com/cpt/journal/v11/n1/full/cpt201045a.html#Agambens-Counternarrative-andthe-Problem-of-Mythologization)
Agamben's counternarrative becomes one of ‘fated necessity’ as the ‘logic’ he attributes to
sovereignty glosses over the ambivalences, discontinuities and unpredictabilities of its history.
In doing this, the counternarrative cannot help but repeat, albeit unwittingly, the distinctive
gestures that Agamben associates with ‘myth’: What was contingent seems as if it was
necessary and inevitable. In the words of Horkheimer and Adorno, who analyzed how an antimythical posture itself can turn into myth, ‘this barren wisdom merely reproduces the fantastic
doctrine it rejects: the sanction of fate which, through retribution, incessantly reinstates what
always was. Whatever may be different is made the same’ (2002, p. 8). Only within the confines
of Agamben's stringent logic, can any politics organized around sovereignty and human rights
not help but reinscribe the originary violence repeated since the beginning of Western political
history. The imposition of such a logic, which ends up imputing a preordained trajectory to any
politics organized around sovereignty and human rights, however, is at odds with Agamben's
own efforts to understand time and history in terms of inexhaustible potentialities. Indeed,
Agamben's notion of ‘potentiality’ might help us break the binding spell of his own myth.
2AC Anarchy Bad
Anarchy causes war – government and hegemony checks
Kaplan, Chief Geopolitical Analyst and Senior Fellow at the Center for a New
American Security, 13 (Robert D. foreign correspondent and contributing editor at The Atlantic, In
2009, he was appointed to the Pentagon's Defense Policy Board, which advised former U.S. Secretary of
Defense Robert Gates on key issues, From 2006 to 2008, he was the Class of 1960 Distinguished Visiting
Professor in National Security at the U.S. Naval Academy. “Anarchy and Hegemony”. Stratfor Global
Intelligence. 4-17-13. https://www.stratfor.com/weekly/anarchy-and-hegemony)
geopolitics equality
usually does not work very well. For centuries Europe had a rough equality between
major states that is often referred to as the balance-of-power system.
And that led to frequent wars. East Asia, by contrast, from the 14th to the early 19th centuries, had its relations ordered by a tribute
Everyone loves equality: equality of races, of ethnic groups, of sexual orientations, and so on. The problem is, however, that in
system in which China was roughly dominant. The result, according to political scientist David C. Kang of the University of Southern California, was a generally more peaceful
climate in Asia than in Europe. The fact is that
domination of one sort or another, tyrannical or not,
has a better chance of preventing the outbreak of war than a system in
which no one is really in charge; where no one is the top dog, so to
speak. That is why Columbia University's Kenneth Waltz, arguably America's
pre-eminent realist, says that the opposite of "anarchy" is not stability,
but "hierarchy." Hierarchy eviscerates equality; hierarchy implies that
some are frankly "more equal" than others, and it is this formal inequality
— where someone, or some state or group, has more authority and
power than others — that prevents chaos. For it is inequality itself that often
creates the conditions for peace. Government is the most common form
of hierarchy . It is a government that monopolizes the use of violence in a given geographical space, thereby preventing anarchy. To quote
Thomas Hobbes, the 17th century English philosopher, only where it is possible to punish the
wicked can right and wrong have any practical meaning, and that requires
"some coercive power." The best sort of inequality is hegemony. Whereas primacy, as
Kang explains, is about preponderance purely through military or economic power, hegemony "involves legitimation and consensus." That is to say, hegemony
is some form of agreed-upon inequality, where the dominant power is
expected by others to lead. When a hegemon does not lead, it is acting irresponsibly. Of course, hegemony has a
bad reputation in media discourse. But that is only because journalists are confused
about the terminology, even as they sanctimoniously judge previous historical eras by the strict standards of their own. In fact, for most of
human history, periods of relative peace have been the product of hegemony of
one sort or another. And for many periods, the reigning hegemonic or imperial power was the most liberal, according to the standards of the age. Rome, Venice and Britain were
usually more liberal than the forces arranged against them. The empire of the Austrian Hapsburgs in Central and Eastern Europe often protected the rights of minorities and
prevented ethnic wars to a much greater degree than did the modern states that succeeded it. The Ottoman Empire in the Balkans and the Middle East frequently did likewise.
hegemony does not
require tyrannical or absolutist rule. Stability is not the natural order of
There are exceptions, of course, like Hapsburg Spain, with its combination of inquisition and conquest. But the point is that
things. In fact, history shows that stability such as it exists is usually a
function of imperial rule, which, in turn, is a common form of hierarchy . To
wit, there are few things messier in geopolitics than the demise of an empire. The collapse of the Hapsburgs, of the Ottoman Turks, of the Soviet Empire and the British Empire
in Asia and Africa led to chronic wars and upheavals. Some uncomprehending commentators remind us that all empires end badly. Of course they do, but that is only after they
have provided decades and centuries of relative peace. Obviously, not all empires are morally equivalent. For example, the Austrian Hapsburgs were for their time infinitely
more tolerant than the Soviet Communists. Indeed, had the Romanov Dynasty in St. Petersburg not been replaced in 1917 by Lenin's Bolsheviks, Russia would likely have
evolved far more humanely than it did through the course of the 20th century. Therefore, I am saying only in a general sense is order preferable to disorder. (Though captivating
subtleties abound: For example, Napoleon betrayed the ideals of the French Revolution by creating an empire, but he also granted rights to Jews and Protestants and created a
order must come from hierarchal
domination. Indeed, from the end of World War II until very recently, the United States has performed the
role of a hegemon in world politics. America may be democratic at home, but abroad it has been hegemonic. That is, by some
rough measure of international consent, it is America that has the responsibility to lead. America formed NATO in Europe, even as
system of merit over one of just birth and privilege.) In any case, such
its Navy and Air Force exercise preponderant power in the Pacific Basin. And whenever there is a humanitarian catastrophe somewhere in the developing world, it is the United
it would be a different, much
more anarchic world without American hegemony. But that hegemony, in some aspects, seems to be on
States that has been expected to organize the response. Periodically, America has failed. But in general,
the wane. That is what makes this juncture in history unique. NATO is simply not what it used to be. U.S. forces in the Pacific are perceived to be less all-powerful than in the
past, as China tests U.S. hegemony in the region. But most importantly, U.S. President Barack Obama is evolving a doctrine of surgical strikes against specific individuals
combined with non-interference — or minimal interference — in cases of regional disorder. Libya and Syria are cases in point. Gone, at least for the moment, are the days when
U.S. forces were at the ready to put a situation to rights in this country or that. When it comes to the Greater Middle East, Americans seem to want protection on the cheap, and
Obama is giving them that. We will kill a terrorist with a drone, but outside of limited numbers of special operations forces there will be no boots on the ground for Libya, Syria
or any other place. As for Iran, whatever the White House now says, there is a perception that the administration would rather contain a nuclear Iran than launch a military
strike to prevent Iran from going nuclear. That, by itself, is unexceptional. Previous administrations have been quite averse to the use of force. In recent decades, it was only
George W. Bush — and only in the aftermath of 9/11 — who relished the concept of large-scale boots on the ground in a war of choice. Nevertheless, something has shifted. In a
world of strong states — a world characterized by hierarchy, that is — the United States often enforced the rules of the road or competed with another hegemon, the Soviet
Union, to do so. Such enforcement came in the form of robust diplomacy, often backed by a threat to use military power. Richard Nixon, Ronald Reagan and George H.W. Bush
were noted for American leadership and an effective, sometimes ruthless foreign policy. Since the Cold War ended and Bill Clinton became president, American leadership has
often seemed to be either unserious, inexpertly and crudely applied or relatively absent. And this has transpired even as states themselves in the Greater Middle East have
become feebler. In other words, both the hegemon and the many states it influences are weaker. Hierarchy is dissolving on all levels. Equality is now on the march in geopolitics:
The American hegemon is less hegemonic, and within individual countries — Egypt, Syria, Libya, Iraq, Tunisia and so on — internal forces are no longer subservient to the
regime. (And states like Turkey, Saudi Arabia and Pakistan are not in the American camp to the degree that they used to be, further weakening American hegemony.) Moreover,
the European Union as a political organizing principle is also weakening, even as the one-party state in China is under increasing duress. Nevertheless, in the case of the Middle
East, do not conflate chaos with democracy. Democracy itself implies an unequal, hierarchal order, albeit one determined by voters. What we have in the Middle East cannot be
democracy because almost nowhere is there a new and sufficiently formalized hierarchy. No, what we have in many places in the Middle East is the weakening of central
authority with no new hierarchy to adequately replace it.
Unless some force can, against considerable odds,
reinstitute hierarchy — be it an American hegemon acting globally, or an international organization acting regionally or, say, an Egyptian military
acting internally — we will have more fluidity, more equality and therefore more
anarchy to look forward to. This is profoundly disturbing, because
civilization abjures anarchy. In his novel Billy Budd (1924), Herman Melville deeply laments the fact that even beauty
itself must be sacrificed for the maintenance of order. For without order
— without hierarchy — there is nothing.
SQuo world is an anarchic realm with each nation-state as an individual,
pursuing interests freely – war between nation-states empirically prove
anarchy bad
Politics and Metapolitics, 09 (Politics and Metapolitics. Political science and
literature blog, “How Much Anarchy?” 5/30/15.
https://arejaee.wordpress.com/2009/05/30/how-much-anarchy/)
An international system
exists; 2) The system is anarchic; 3) States are sovereign and the primary
units of the system; 4) States seek power; and 5) States act rationally. While each claim complements
Realism and neorealism make five central claims about the international politics: 1)
the others, I believe that realism’s understanding of anarchy is the nucleus of the tradition’s analyses of interstate relations. In this
essay, I explore the validity of the proposition that anarchy determines the nature of state interactions in the system. Ultimately, I
determine that realism’s strict definition of anarchy is a beneficial tool for understanding international relations in a broad historical
Anarchy exists in degrees of intensity
dependent on state behavior and the orientation of the great powers.
Here, I distinguish two types of anarchy: hard and soft. I use the former
label to describe a state of more anarchy and the latter to describe less
anarchy. Of note, my use of the term realism in this study encompasses the neorealist approach. For realists, anarchy
is a product of the multitude of sovereign states within the international
system. States are free to pursue courses of action without any structural
sense but deficient when analyzing the current era.
restraints. Without a hierarchical structure providing rules for state
interaction, states are situated in relationships of self-help and,
consequently, are in direct competition with one another to secure their
national interest defined as power. In the realist conception of
international politics, power is both an ends and a means. The zero-sum
game ignited by anarchy compels states to act rationally, otherwise there
is a chance that a competitor will become more powerful and, therefore,
threaten another’s national interest. Despite the omnipresence of rational-egoism in the system,
cooperation is not absent from the realist model. In fact, anarchy compels states to cooperate – but only temporarily to enhance
their interests. Kenneth Waltz’s defensive realism, which articulates the effects of anarchy on balance of power politics, explicates
In order to protect national interest, Waltz says,
states will ally to negate the ascending power of another. Once the power
equilibrium is restored, the allied states pursue their interests
independently, only to balance again in the future when one state
disrupts the distribution of power.[1] International institutions do not play
a role in softening realism’s anarchy because no international body exists
to extricate states from the self-help principle. Basically, international institutions are a tool for
cooperation’s role in the realist framework.
enhancing national interest against the welfare of other states. Thus, zero-sum competition is an enduring feature of the
international system. From the Treaty of Westphalia’s establishment of the nation-state as the primary unit of international relations
in 1648 to World War II, realism’s anarchy offers a compelling longe duree perspective of the motivations of states and interstate
conflict. During that time, the insubstantial information flows between nation-states exacerbated the question of other states’ policy
intentions. Realism’s strict interpretation of anarchy, however, seems anachronistic considering the technological advances of the
mid- to late-twentieth century that connected nations and facilitated the integration of national economies into the complex global
economy. Contrary to the central assumption of neo-realism, anarchy is not the sole determinant of state behavior in the modern
era. One need only open the newspaper for evidence that states are subject to formal and informal constraints. Liberal theorists like
Robert Keohane and Joseph Nye agree that the international system is anarchic but contend that international economic
institutions, though voluntary, reduce interstate tensions by linking economic welfare – a rational component of the national
interest – to stable and contention-minimizing relationships.[2] In the liberal model, states are concerned with absolute gains
instead of relative gains, thus rationalizing anarchy as an opportunity instead of a burden. Institutions need not be located in brick
and mortar buildings; instead they can be norms widely accepted by the states in the international system. In today’s world, for
example, virtually all states agree that war is only considered ‘just’ if waged for defensive purposes. By and large, the ‘institution’ of
just war restrains states from aggressively pursuing military conquest. The question that then arises is whether the tempered
anarchy of the twentieth century is a temporary or permanent deviation from realism’s rigid interpretation of anarchy. Some liberals
institutions, once formed, acquire a logic and agenda separate from
their constituent states; thus becoming pseudo-sovereign agents in the
international system.[3] If this is the case, then a system defined by soft
insist that
anarchy may be a constant.
Another way to predict the degree of anarchy in the future is to question the
effects of technological progress through history. From steamboats and the telegraph to television and the Internet, human
innovation has created an increasingly interconnected and culturally homogenous world. As the globe becomes smaller, institutions
are utilized to mediate between disputant agents and formulate responses to the ills produced by the virtual elimination of spatial
, anarchy may be intensified by a myriad of factors – ranging
from resource scarcity to violence perpetrated by non-state actors. In
today’s world, it is not outlandish to imagine a state attempting to
protect its national welfare from non-state militant groups by wantonly
violating the sovereignty of weak and/or unwilling nations while
disregarding formal and informal international institutions. In this case, a
system marked by hard anarchy is likely to result. As demonstrated in the paragraph above,
barriers. Conversely
predicting the future severity of anarchy is a tenuous task. One alternative model examines anarchy as the product of vacillating
norms of international society. In “Anarchy is What States Make of It,” constructivist Alexander Wendt advises scholars of
international relations to examine processes of state interaction instead of focusing on the conditions of interaction. The degree of
anarchy in the system is determined, he says, by states’ identities as constructed by the interaction of an ego with alters. In other
The soft
anarchy defining the current period of the international system can be
attributed to the unipolar dominance of the Untied States and the states
socialization vis-à-vis the institution of a single great power. Great powers are
words, at any one time the system can be more or less cooperative based on the socialization process of states.[4]
informal institutions that play a substantial role in creating norms in the international system either through their interaction, as in a
multipolar system, or their unrivaled power, as in a unipolar system. In the former case, the system is likely to be more anarchical.
Yet, if a single superpower dominates the system and promotes the idea of absolute gains, as the United States does, then a
challenger or coalition of challengers is less likely to emerge. In other words, a loose, non-obligatory order built upon common
norms and understandings simultaneously sustains anarchy but also provides structure. The degree of anarchy in a unipolar system,
though, is contingent upon the identity of the great power. An aggressive great power with a zero-sum interpretation of interstate
events will plunge system into a hard anarchy. In sum, as long as sovereign states remain the primary actors in the international
system, anarchy will remain as the structure influencing states’ action. However, the system can at times be more or less anarchic.
The realist and liberal arguments concerning anarchy are both correct when situated within an appropriate context. Constructivist’s
process-centric analysis of international politics reconciles these two school’s understanding of anarchy. It accepts the idea that hard
and soft anarchies are variant conditions of the system dependent on states’ socialization. To understand the international system’s
structure of anarchy, one must look at the dominant institutions mediating state interaction.
2AC Link Turn
Link Turn- Curtailing surveillance through the plan is key to creating a new
philosophy of law
Passavant, Associate Professor of Political Science at Hobart and William Smith Colleges, 07,
(Paul, The Contradictory State of Giorgio Agamben, April, 2007, Sage Publications,
http://www.jstor.org/stable/pdf/20452544.pdf)
There are four implications of this critique for political theory and the state. First, the modem state is poorly understood as
transcendent, unitary, and sovereign. The "state" encompasses a variety of institutions, many of which predate
modernity. The Foucauldian understanding of government, I suggested, is the practice by which articulations between these
institutions are forged-and non-state institutions are joined to this chain-and they are mobilized toward various purposes. The plural
nature of this ensemble is precisely what gives extension to the modem state. Second,
if we treat the state as an
ensemble of institutions, then the concept of a state of emergency is poorly suited to
understanding our political present. Agamben rightly criticizes the USA PATRIOT Act in State of
Exception. This law, like most laws that are passed in an ongoing legal system, amends a variety of
other laws and sits on a foundation created by these other laws, such as the Antiterrorism and Effective
Death Penalty Act of 1996. The Antiterrorism Act created the possibility of attributing guilt by association since it criminalized the
provision of material support for Political Theory organizations that the administration deems "terrorist"-provisions that the USA
PATRIOT Act builds upon. From this perspective, current policies are less "exceptional," unfortunately, and
more a continuing development of a national security state apparatus that has been built through legislation like the National
Security Act of 1947, through discourse, and through the creation of stakeholders (the military-industrial complex). In
other
words, another state formation is struggling to emerge through the ruin of liberal democracy
in the United States, and this emergence (and ruin) is hastened by those who seek to enhance
surveillance and presidential powers, while diminishing the power of courts and legislative oversight as a response to
September 11, 2001.
Third, any social formation is constituted by elements of both contingency and determination.
By emphasizing pure potentiality, Agamben misses this and either cherishes the excessive
quality of pure potentiality to the neglect of the exigent needs of the present, or neglects how
the active political subjects he does defend are embedded within finite commitments that
necessarily persevere through the foreclosure of other possibilities. Some contemporary
political theorists concerned with injustice and the lack of democracy also emphasize
contingency, excess, and potentiality over determination, finitude, and acts. These theorists
correctly seek to disrupt oppressive patterns. Since politics-hence political change-would not be
possible under conditions of absolute determination, emphasizing contingency or excess makes
sense. Yet reflection upon the retraction of certain state services from places like the Bronx
during the late 1970s permits us to see how neither justice nor democracy is served by
excessive economic duress or violence. Not only are these contingencies unjust, but also their
incapacitating effects prevent democratic practices of government where the latter
necessarily presupposes some collective capacity to direct and achieve collective purposes.
State actions that mitigate chaos, economic inequality, and violence, then, potentially
contribute to the improved justice of outcomes and democracy. Political theorists must temper
celebrating contingency with a simultaneous consideration of the complicated relation that
determination has to democratic purposes. Fourth, the state's institutions are among the few
with the capacity to respond to the exigency of human needs identified by political theorists.
These actions will necessarily be finite and less than wholly adequate, but responsibility may lie
on the side of acknowledging these limitations and seeking to redress what is lacking in state
action rather than calling for pure potentiality and an end to the state. We may conclude that
claims to justice or democracy based on the wish to rid ourselves of the state once and for all
are like George W. Bush claiming to be an environmentalist because he has proposed
converting all of our cars so that they will run on hydrogen. "Meanwhile, in the here and now,
there are urgent claims that demand finite acts that by definition will be both divisive and less
than what a situation demands. In the end, the state remains. Let us defend this state of due
process and equal protection against its ruinous other.
2AC No Impact
No Impact- We’re already living in a state of anarchy
Caplan, Professor of Economics at George Mason University 09, (Bryan, Professor of
Economics at George Mason University and blogger for EconLog, My first book, The Myth of the
Rational Voter, was named "the best political book of the year" by the New York Time, currently
working on my next book, The Case Against Education. I've published in the New York Times,
Washington Post, Wall Street Journal, American Economic Review, Economic Journal, Journal of
Law and Economics, and Intelligence, and appeared on 20/20 and C-SPAN, Anarchist Theory FAQ
or Instead of a FAQ, by a Man Too Busy to Write One, June 18, 2009,
http://econfaculty.gmu.edu/bcaplan/anarfaq.htm)
Under anarchy, it is conceivable that e.g. a brutal gang might use its superior might to coerce
everyone else to do as they wish. With nothing more powerful than the gang, there would
(definitionally) be nothing to stop them. But how does this differ from what we have now?
Governments rule because they have the might to maintain their power; in short, because
there is no superior agency to restrain them. Hence, reason some critics of anarchism, the goal of
anarchists is futile because we are already in a state of anarchy.
2AC Reform Good
SQuo reform good– k/t protecting constitutional rights and democracy
Richards, Professor of Law at Washington University, 14 (Neil. M. B.A. Washington
University, J.D. University of Virginia, M.A. in Legal History from University of Virginia, expert in fields of
privacy, First Amendment, and information law, co-director of Washington University-Cambridge
University International Privacy Law Conference and the Washington University Free Speech Conference,
recipient of the Washington University student body’s David M. Becker Professor of the Year Award,
specialized in appellate litigation and privacy law, former law clerk to Chief Justice William H. Rehnquist,
and Judge Paul V. Niemeyer of the United States Court of Appeals for the Fourth Circuit, Hugo Black
Fellow at the University of Alabama Law School and a Temple Bar Fellow. “Digital Laws Evolve.” The Wired
World In 2015. 11-12-2014.
http://poseidon01.ssrn.com/delivery.php?ID=759099099100076031022025079021091025023080034035
0490021060801060670700910221100930050191061070321121
2410912411409511200103001506103707104908110202407003107411007006808501902212006606711
2108125099107010018113003075029108124102064095000089006001115&EXT=pdf&TYPE=2 )
THE LAW HAS ALWAYS BEEN SLOW to keep up with technology, but in 2015 we will
see increasing regulation. Over the past decade, as the web, social, mobile, cloud and
big data phases of the digital revolution have leapt forward, regulators
have been reluctant to intervene. After all, law can be a blunt tool, and it is all too easy for even wellmeaning lawmakers to issue rules that later turn out to be restrictive. But as the scope and scale of the digital
transformation has become apparent, regulators have woken up.
Surveillance reform is on the agenda around the world, and so is privacy
law more generally, such as the revision of the EU Data Protection Directive and serious efforts at reform by the
White House, the Federal Trade Commission, and other parts of the US government. The decision by a Spanish court earlier this year
requiring Google to filter its search results to protect privacy under what is colloquially known as “the right to be forgotten” is part of
Surveillance law will adapt to include the cloud,
and it will no longer be acceptable for governments to use “we collected
the data because it wasn’t prohibited” or “anything shared on the
internet is fair game” as a viable excuse for intrusions into their citizens’
privacy. As big-data predictions start to affect more of our lives, we’ll see new protections come into force against
this trend. But more change is on the horizon.
discrimination by algorithm, whether by security services, insurance companies or employers. As the sensor-enabled “internet of
things” promises to turn every electrical device (and quite a few that aren’t) into a data-collecting networked appliance, and as smart
we’ll need rules for the data that is
collected: who owns it, for what purposes and for how long? As long as
technology was largely confined to cyberspace, it was relatively easy to
keep things separate. But as our digital technologies increasingly enter
physical space, law will find itself entangled in these new and important
questions – whether itwants to be or not. Already, companies are starting to hire “chief privacy
watches and wearable tech such as Google Glass proliferate,
officers” in record numbers, and new law graduates throughout the western world are finding that the high-growth area within law
cyber-utopians
argued that law had no place in our new digital realm. But, as it turned out,
firms is in its privacy-law practices. We have seen this pattern before. At the very dawn of the digital age,
laws were in fact necessary – to provide a basis for digital property and
digital commerce; to provide security from scammers and malicious
hackers; and for the redress of the many crimes and wrongs that would
inevitably occur as major chunks of human life migrated to digital formats.
The best example of this was in the area of copyright, when perfect, cost-free digital copying threatened the long-established
economic model of many of the industries that make culture: music, books and film. For a while, we stared into the abyss of a
revolutionary Napster and YouTube future, and then we pragmatically backed away, bringing copyright law into the digital realm.
if law can regulate
copyright for the entertainment industries, it can – and should – regulate
data for everyone else. And it will. As the digital revolution proceeds,
we’re realizing that we have a right to demand that privacy, security,
expression, equality and other values we fought so hard to get built into
the democratic society of the twentieth century get built into the digital
one of the twenty-first. In 2015, these developments will kick into high
gear, and law will start to catch up with technology.
Many of us believe that copyright law actually went too far, but the clear lesson is that
2AC State of Exception Good
Empirics prove- State of exception is used to fix the problems with the law, not
create new ones
Bull, Professor of the History of Ideas at Oxford, 04, (Malcolm, Malcolm Bull is Professor of Art
and the History of Ideas. He has spent his entire career at Oxford, but has also spent periods
elsewhere as a Getty Scholar and a Clark Fellow, and as a visiting professor at the Courtauld
Institute of Art and at Complutense University of Madrid. In 2015 he will be Visiting Pilkington
Professor at Manchester, Malcolm Bull reviews State of Exception by Giorgio Agamben, trans.
Kevin Attell. Chicago, 104 pp, London Review of Books, http://www.generationonline.org/p/fpagamben2.htm)
This distorts Agamben's argument at both a historical and a theoretical level. Missing from his
account of the state of exception is any real acknowledgment that, in its modern form, a
primary function of the emergency has been to deal with strikes. In the United Kingdom, the first
Emergency Powers Act was passed in 1920 and used the following year against the miners' strike; a state of emergency (which
lasted eight months) was declared to deal with the General Strike, and, most recently, during the Heath government, there were
five states of emergency, all in response to strikes. The
symmetry between the strike and the emergency is
not just historical. In a strike, workers break their contracts with a view to renegotiating them,
then resuming work. Like the state of exception, the strike is simultaneously within the law
and outside it. Yet unlike exceptions to the law, exceptions to work can easily come about by
accident, through the spread of wildcat strikes or absenteeism. A formal state of exception may result.
Livy mentions an occasion when a iustitium was declared because people had given up going to work to participate in the
Bacchanalia. (The 2 January Bank Holiday in Scotland is a more recent example.) Who then decides the exception?
In
Agamben's work, the state of exception produces outlaws, but if there are enough outlaws
there is effectively no law in any case. Instances such as this, in which the government sanctions collective
(in)action, are unusual. The state of exception is more often used to suppress industrial action: an
attempt to turn law into violence in order to oppose the law-making violence of the strike. But Agamben gives little
indication that the state of exception is usually only one side of a social confrontation, or that, rather than
creating a void in the law, the exception is often made in an attempt to close a space opened
up by someone else. According to Schmitt, 'in the exception the power of real life breaks through the crust of mechanism
that has become torpid by repetition.' Yet it is not the state of exception itself that carries the power of real life so much as the
crisis with which it attempts to deal, or the crisis that it provokes. The
state of exception is, in itself, a purely
formal device which allows 'the state to exist even as the law recedes', and provides a bridge
across the abyss between two moments of law. In this respect, the exception differs
significantly from constituent power and the political general strike, both of which have the
capacity to remake established legal and social frameworks. The ability to revise existing norms
is, as Machiavelli first recognised, just as important for the survival of institutions as
dictatorship, for while dictatorship only allows norms to be preserved, reformation enables
them to be renewed. Dictatorship and renovation may both be precipitated by crisis, but
whereas the former is to be deployed as sparingly as possible, the latter is to be encouraged, for
institutions last longer if they retain the capacity to start over. Agamben does not refer to this
tradition of exception, but it has its own sacred history. In the Jewish law, jubilees were years when normal working
activities ceased, and the socially dead were resuscitated - debtors given relief, slaves freed and the poor reunited with their
property. Such practices provided the model for the first attempted general strike, William Benbow's 'Grand National Holiday', so
named because 'a holiday signifies a holy day and ours is to be of holy days the most holy . . . established to establish plenty, to
abolish want, to render all men equal.' Unlike the state of exception, when all men become homines sacri, on the holy day, when
'we shall legislate for all mankind', all men are sovereign, and it is the body politic that becomes the defenceless homo sacer.