Faust Series Opus 9: Contract Man - Homo Sacer Investigations I

1. A Contract Cannot be Suspended

2. Homo Sacer Loopholes

3. Hobbes – Inventor of ‘Bare Life’?

4. Kafka’s Contract

5. A Law Older Than the State

1. The Contract Cannot be Suspended

(the contract has the form of revenge, revenge has no absolute deadline, but a conditional one – as in the Faustian contract - the quintessential Ur-contract)

A street version of homo sacer – a contract man is the person, individual against whom a contract is ordered or taken out. The organization ordering the contract is not the state or any agency of the state – on the contrary the organization is outside or opposed to the state. The rules and prohibitions of this organization are the only ones governing the ordering of a contract. The terms and conditions of the contract prescribe in the same way as (the juridical status or anti-status) of homo sacer, that the object of a contract can be killed by anyone at any time and at any location. Object is almost too personal - the person whose death is ordered by the contract – is not the object. The task of killing is the object of the transaction formalized in the contract. A sales contract is about the purchase and transfer of a commodity and its uses. But the killing contract is about the purchase of a service – that of killing a specific individual. The thus designated contract man – is the content of the contracted service.

The contract man has forfeited all protection, except ironically that of the state, against which the contract is also directed. The contract man – in the judgement of that other court – has transgressed against the community for which the other court, the contract court, is the arbitrator. There is never any appeal against a contract. The contract is not a ‘state of exception’ (is homo sacer actually a reflection of the state of exception when the law exists but is not applied – or is homo sacer precisely the application in strictest sense of the law?) – especially not in regard to the conventional law; nor is it a law, it is a contract - thus it cannot be suspended. (One never speaks of a Faustian law, only a Faustian contract or pact. The devil speaks in the language of the contract.) Or rather, it is the sort of law which can never be suspended – a much more draconian sort of law. As Machiavelli writes – quoted by Agamben – sometimes it is necessary to ‘break’ the order to preserve it – the contract is such a law which can never be broken –the order, the community, the world would perish rather than the law governing it. (see Giorgio Agamben, State of Exception, Chicago, 2005, p. 46 – from Discorsi)

The contract is a form of law (outside the Law), which is immune to its being suspended. Consequently no one has immunity from a contract.

If a definition of the sovereign is he who decides over life and death – then the other court ordering the contract is equally sovereign. But the two sovereignties are not a dual regime – as sometimes Nazi Germany and fascist Italy are described. The coexistence of a juridical state in suspended animation – alongside the exceptional state – whose longevity is indefinite but never anything but temporary – so that the juridical state in abeyance is absolutely necessary for the exception – all this is still one state. The dual regime – is merely a more radical less stable form of what since the Glorious Revolution in England – functions as ‘constitutional monarchy’. Although neither the parliamentary system nor the monarchy would be called a state of exception – the unelected hereditary sovereign is a suspension of the elected representative body and vice versa. Both depend on one another for the survival of ‘governmentality’. Allegedly since the ‘glorious revolution’ the monarch can no longer wield absolute power – or the monarchy is no longer absolute. Parliament must give its permission for instance if laws are to be suspended.

Or rather, the government decides on a state of exception such as at the beginning of the First World War and asks parliament to pass emergency measures. The Defence of the Realm Act (DORA) was introduced on August 4th 1914 – but other emergency measures of a similar nature were enacted during the ‘internal war’ – the large strikes and quasi-uprisings of the 1920’s. In 1911 though during the “Siege of Sydney Street” in London’s East End, Churchill ordered a Scots Guard Artillery Unit to fire upon a house in which anarchists were allegedly hiding out. He also prevented the fire brigade from putting out a fire, which broke out in the house - without the need to resort to exceptional powers. The composite nature of British rule/sovereignty is most obvious in the language of the Emergency Powers Act of 1920. The law is phrased as if it is “His Majesty” who is pronouncing upon these exceptional restrictions and powers.

The law states: “If at any time it appears to His Majesty that any action has been taken or is immediately threatened by any persons or body of persons (…) as to be calculated, (…) to deprive the community, or any substantial portion of the community, of the essentials of life, His Majesty may, by proclamation (hereinafter referred to as a proclamation of emergency), declare that a state of emergency exists.” (quoted in Agamben, State of Exception, ibid., p. 19) If according to Schmitt “Sovereign is he who decides on the exception” – who is here the sovereign?

But does that not simply mean – that absolute power is no longer in the hands of just the monarchy alone (whatever absolute power means) – but shared between parliament and the monarchy. Absolute power though remains. Absolute power though is not just divided between the Crown (subsuming under it The Church of England) and Parliament – there is a third pillar – a trinity of absolute power – the third member of the trinity is the City of London corporation, most similar in its hermetic structure of almost extra-territorial self-rule to the monarch or House of Lords – rather more than less absolute. “There can be no doubt that the City of London operates with a very different form of governance and voting than any other London borough or British local authority. It is anomalous, though only in a way arguably matched by the House of Lords and the Monarchy.” (Tony Travers, “The Governance and Voting System of the City of London” Transcript of a Lecture at Gresham College, 17th January 2013, online p. 5)

The secretive City of London is in itself a ‘state of exception’.

The ‘decision on the exception’ is only the sovereign’s in the second instance. The (state of) exception can appear fluid, protean and authorless. It is neither rigid nor impermeable. The exception is a question of fact as Agamben frequently repeats (or “extrajuridical”) – the sovereign does not create the facts – in theological terms – his decision is a created not a creator. In the decision on the exception – the sovereign does not just suspend the law – he dissolves the boundaries of the state. The state merges with an opposing materiality:

A dialectical mimesis exists between the state and what Badiou calls its ‘roaming void’. Or in Schmitt terms – the state of exception is a dialectical mimicry of the enemy. In this sense Schmitt observes that for the Catholic conservative state theorist Donoso Cortés liberalism was a depoliticized neuter of no significance – but his venom and passion, his retaliatory vigor was directed at the enemy – anarchism, socialism. (see Leo Strauss, Notes on Carl Schmitt, The Concept of the Political, undated, online) Donoso Cortés according to Schmitt despises the liberals who would ‘negotiate’ and ‘discuss’ till the end of time – all to avoid ‘the decision’. They would “dissolve metaphysical truth in a discussion.” The anarchists-socialists were the proper demons for his politics of the “Last Judgement”: “Dictatorship is the opposite of discussion. It belongs to the decisionism of one like Donoso Cortés to assume the extreme case, to anticipate the Last Judgement. The extremist cast of mind explains why he was contemptuous of the liberals while he respected atheist-anarchist socialism as his deadly foe and endowed it with diabolical stature.” (Carl Schmitt, Political Theology, Cambridge, 1985, p. 63)

The reader has the distinct impression Schmitt is speaking of himself just as much as of Donoso Cortés. Both are of a legal turn of mind, which prevents them from grasping the metaphysical difference between decision and action.

Even if one skips the discussion, leaping immediately to the dictatorial decision – how then does decision finally translate into the political ‘action’? Despite their apocalyptic leanings, as jurists they also overestimate the ‘power of the word’ – the natural habitat of ‘the legal’.

Besides, both Donoso Cortés and Schmitt, as Catholic political theologians, would naturally regard the legal-political ‘decision’ on a par with “the word was God”, “the word became flesh”, (John) – which has no need of the nexus or mediation of action – being an action-body in itself.

Later Schmitt would summarize Nazi Law, the principle of Führung as – Das Führer Wort hat Gesetzeskraft. (The Führer’s word has power of law.) – amalgamating decision, word, law and the living Führer body (God ersatz) into one pithy catechism – but still no hint of the movement from decision (voice) to action. Agamben’s definitions of the ‘new’ biopolitics of bare life springing immediately from Nazi concepts of the political - move continually along this Schmittian treadmill – one example of many: “Politics is now literally the decision concerning the unpolitical (that is, concerning bare life).” (Giorgio Agamben, Homo Sacer Sovereign Power and Bare Life, Stanford, 1998, p. 173) Or referring to the Führer as “living law” Agamben describes the “radical novelty” of the Nazi “biopolitical body”, revealing that indeed the Führer is the sole mediation between decision and ‘life’ : “(…) National Socialist theory (…) posits the immediate and intrinsically perfect source of law in the word of the Führer (…) Just as the word of the Führer is not a factual situation that is then transformed into a rule, but is rather itself rule insofar as it is living voice, so the biopolitical body (…) is not an inert biological presupposition (…) but at once rule and criterion of its own application, a juridical rule that decides the fact that decides on its application.” (ibid., pp. 172-173)

Schmitt’s friend-enemy distinction as the quintessence of ‘the political’ seems quite simplistic – almost primitive – when one compares it with Hegel, whom he remotely echoes. In Schmitt’s political world – the friend-enemy distinction is a decision made ‘inside a state as an organized political unit/unity’, but he is unable to show how it is constituted as a relation. Actually, although Schmitt considers the friend-enemy distinction as the one specific to ‘the political’ – implicitly the only relation he regards as definitive is the one between enemy and enemy. The friend-friend relation has no value for his political concept based on ‘polemos’ – unless the friend is a false one, an enemy in drag.

Since for Hegel – the reversal, the upside down world (die verkehrte Welt), the contradiction and subsequently the “brokenness in itself” (in sich selbst Gebrochenes) of consciousness is a primary structure of being, reality and of logic – his concept of ‘the political’ could never rely on a merely historical, contingent, ephemeral distinction of friend and enemy as Schmitt proposes. The reflection of the opposing other in each ‘side’ of the ‘essential relation’ does not allow for a rigid separation of friend and enemy. Or rather – their ‘independence’ is only their condition of being a dependent side of a whole in permanent (historical) transformation. Schmitt’s own identification with the ‘enemy’ – the class enemy Lenin, Marx, Lukacs, etc – his flirtation with a ‘theory of the partisan’ – is not a trick, duplicity or disingenuousness on his part. It is an expression of that essential relation of opposition and ‘becoming like’ (Vergleichung) – Hegel posits as elements of his ‘negative dialectic’. The class enemy is not just Schmitt’s ‘opposite’ – they are his ‘Beyond’ – to which he must aspire - to return to himself. He praises Lenin, Marx and especially Lukacs for being the real transporters of the ‘spirit of Hegel’, which through them has emigrated from Berlin to Moscow. They truly are his beyond: – because in recognizing how masterfully they use Hegel’s dialectical method to shape a new ‘concrete’ concept of the enemy as the class enemy – Schmitt reveals an essential flaw in his own argument – that only a people organized in its state can be the enemy of another people. The true Hegelians – Marx, Lenin and Lukacs – have obviously transcended a concept of the political shackled to the state. They show that ‘the political’ can dispense with the state – that the enemy is elsewhere/everywhere – in the opposing class or classes – and not just in one state or society. Formally distinct states may even obscure the enemy, just as class or classes transcend state borders. (See Carl Schmitt, Der Begriff des Politischen, Berlin, 2009, (1932) p. 58)

Schmitt lacks a concept of negative totality or unity (negative Einheit) where the opposition is never resolved – but where each ‘appearance’ is only a side whose existence is in the Other. If the other is the enemy – this is where existence lies. The break in the world (substance) – the contradictory nature of consciousness is prior to factual political friend-enemy or rather enemy-enemy decisions.

Hegel expresses this is in a most extreme fashion: “Die Seite des wesentlichen Verhältnisses ist eine Totalität, die aber als wesentlich ein Entgegengesetztes, ein Jenseits seiner hat; es ist nur Erscheinung; seine Existenz ist vielmehr nicht die seinige, sondern die seines anderen. Es ist daher ein in sich selbst Gebrochenes (…)” [“The side of the essential relation is a totality, which has as essential (to it) its opposite and beyond; it is only appearance; its existence is not its own, rather that of its other. It (the side) is therefore broken in itself (…)” (G.W.F. Hegel, Wissenschaft der Logik II, Frankfurt, 1976, P.165)]

One could say the ‘other’ of the sovereign state of exception is the resistance to state power, which provokes it or calls it into being. Just as resistance ‘exists’ in the state of exception. The truth of the appearance of each – as Hegel would say – is in their essential relation. Or in the words of Althusser: “Whoever says class struggle of the ruling class says resistance, revolt and class struggle of the ruled class.” (Louis Althusser, Ideology and Ideological State Apparatuses, 1969-70, Louis Althusser Archive, online) Power (Kraft) is a negative unity into which the contradiction of the whole and its parts – the elements of the essential relation – dissolves over and over again. (G.W.F. Hegel, ibid., p.172)

The power of each side is nothing for itself – as the respective negative impetus of the other – each side’s power is only an aspect of the general force with which it is pushed back into itself (“in sich zurückgedrängte Kraft”, see G.W.F. Hegel, Phänomenologie des Geistes, Frankfurt, 1976, p. 112).

The state of exception and the revolt correspond with one another like the ‘theatre and its double’. One of the most striking performances of Genet’s play The Balcony, the 1969 production by Victor Garcia, took place in São Paulo under the newly instated military dictatorship of General Garrastazu Médici in Brazil. The play shows patrons of a brothel engaged in erotic games where they assume the roles of notables and wielders of power (Bishop, Judge, General, Executioner) whilst outside of the brothel an uprising rages in the city. The play’s timeless microcosm of the brothel (its inescapable decor of gilded mirrors, infinite ‘salons’ and primitive CCTV) – against the concrete background of events ‘outside’ of the play – repeats and multiplies the specular structure of power and counter power (subject and counter subject).

Resistance ‘exists’ also in ordinary changes of law – as Huey Newton describes in his autobiography Revolutionary Suicide. When the Black Panthers began to exercise their constitutional right to bear arms on their ‘patrols’ of the police in Oakland and the Bay Area – a Republican state assemblyman named Mulford introduced a bill called the “Panther Bill” – making it illegal to carry loaded weapons. The bill passed the California Legislature by a huge majority. As Newton writes: “We knew how the system operated. If we used the laws in our own interest and against theirs, then the power structure would simply change the laws.” (Huey P. Newton, Revolutionary Suicide, New York, 2009, p. 154) The Black Panther ‘patrols’ – literally a ‘roaming void’ - were one of the first organized public actions of the movement. Point 7 of their 10-point-program was the armed self-defence of the black community. They patrolled their own neighbourhoods not to control the black community – but to observe and intimidate the police who regularly brutalized black people. The logic of the patrol though had its own dynamic – they became the police of the police, potential enforcers, police replacements.

The patrolling of black neighbourhoods was itself a dialectical mimicry of the enemy – the Black Panther movement began with hegemony-esque imitations of sovereign power, of a state-to-come. When they marched around in Oakland, dressed in black leather jackets, black trousers and black berets, while a ‘drill sergeant’ shouted “left, left, left” – it was both a travesty and emulation of a boot camp.

The sheer form of the self-appointed armed patrol – who could appear at random, out of nowhere - suggests that the Black Panther movement already harboured the potential to transform itself into capos or Kapos (Kapos or Lagerpolizei were prisoners appointed by the SS to police concentration camp inmates).

The ordinary blacks were in effect now subjected to the presence of two sets of armed organizations – the weapon bearing Black Panther members and the police.

Huey Newton prided himself on his legal acumen – he considered himself a walking compendium of California state law. When the court ‘lost’ his blood stained law book, the one he had with him on the night of the killing of Officer Frey – it had been his gun stand-in – he considered this a ground for mistrial. His law book was his fetish, a good luck charm against the evil eye. Having the law (book) in one’s hand was in itself power.

His attorneys had submitted it as evidence in his first trial for murder. The prosecution offered to enter a photograph of the law book instead as evidence in the second trial, but this did not appease Newton: “But a photograph is not a book. The prosecution had a witness on the stand who said that I had turned and started firing at two policemen on October 28, yet the piece of evidence that disproved this claim, the only object I was carrying that night, was missing. And now they wanted to replace it with a facsimile. The jury could not see my bloodstains on the pages; they could not read my name on the flyleaf; and they could not see where I had underlined the relevant portions of the criminal code about reasonable cause for arrest, the section I always read to police and citizens during our encounters.” (Revolutionary Suicide, ibid., p. 340) One wonders how Newton could believe so fervently that the physical law book even with all its decorations, its patina would in itself persuade a jury that he as the defendant was not also carrying a gun or firing one – as if he had only one hand. Besides, it was his declared principle to be armed both ‘with the gun and the knowledge of the law’.

The sovereign decides on that which already exists – the exception. It is forced to ‘include’ in itself that which it has ‘excluded’. The decision on the exception is actually the decision on the reversal of the exception (in Schmitt’s logic) – except when the decision on the exception takes the form of some sort of coup d’état aspiring to permanence – but then it has abandoned both the juridical sphere and its suspension. (To confuse matters further - originally, as Foucault notes in his Security, Territory, Population – ‘coup d’état’ in the terminology of 17th and 18th century juridical philosophy meant an internal suspension of the prevailing legality by the state itself – sounding very much like a ‘state of exception’. Foucault calls this the “salvation” of the state.)

2. Homo Sacer Loopholes

“I first studied law to become a better burglar. Figuring I might get busted at any time and wanting to be ready when it happened, I bought some books on criminal law and burglary and felony and looked up as much as possible. I tried to find out what kind of evidence they needed, what things were actually considered violations of the law, what the loopholes were, and what you could do to avoid being charged at all. They had a law for everything.” (Huey P. Newton)

Much is still unknown about homo sacer.

The ‘self-regulating’ insurrectionary or ‘revolutionary’ organization/movement poses a dilemma for the concept of homo sacer.

Actually any sort of organization, which has devised for itself a violent system of penalties and retribution, has already eroded a sovereign ‘right’ over life and death. For instance all mafia and mafiaesque organizations. As Federico Varese remarks of the Camorra: “(…) clans are ultimately armed forces.” (quoted in Simon Parker, Cities, Politics and Power, Routledge, 2010, p. 49)

There is little difference – for the integrity, completeness of the sovereign monopoly of violence – whether an organization belongs to a revolutionary underground or a mafia type underworld.

Such incursions upon sovereign power are merely manifestations of its ultimate porosity – one might say of its finitude. But the concept of homo sacer – especially as developed by Agamben – does not admit to any such porosity or mortality of power – it is not thinkable – but neither is such porosity the ‘unthought’ of homo sacer. How could Agamben ‘think’ such breaches in the absolute ‘coverage’ of sovereign power, the ‘state of exception’ when he has conceived homo sacer as its (more or less) exact homologue?

Still there are ‘openings’ or crevasses in the edifice of Agamben’s argument itself – perhaps even lacunae of thought. Agamben though rather speaks of “the essential contiguity between the state of exception and sovereignty”. (State of Exception, ibid., p. 1) He draws almost exclusively upon Carl Schmitt as his authority for this “essential contiguity”. But isn’t there yet another contiguity or shadowy realm implied by both the state of exception and sovereignty? There is another ‘outside’ of the law besides the state of exception which undermines both faces of sovereignty – its normal and exceptional one – this is the state of nature as defined in the classical philosophies of Hobbes, Rousseau and many others. Agamben calls this realm simply life, ‘bare life’ or ‘the living being’ – both touching and recoiling from it in turn. One can just barely discern this repressed sphere in such definitions as: “(…) the law employs the exception—that is the suspension of law itself—as its original means of referring to and encompassing life, (…)” (ibid.) So that when he concludes “(…) then a theory of the state of exception is the preliminary condition for any definition of the relation that binds and, at the same time, abandons the living being to law.”(ibid.) - Agamben seems to be reproducing an originary moment in western philosophy: the passage from the ‘void’ of the “vast desert of the world” (J.-J. Rousseau, Essai sur l’origine des langues, Bordeaux, 1970, p.103) where humans are abandoned to a pre-social solitary life in the state of nature, “their stupid barbarism” (ibid.) - directly to the state of exception. The living being as a Rousseauian ‘homme isolé’ is trussed to the law as a state of exception without the mediation of ‘l’homme civil’ – the human being as he/she is formed in society (language, passion, events).

Rousseau’s “homme isolé” in his featureless eventless genderless progression through space or the void bears much resemblance to the Epicurian or Lucretian atom, as Althusser notes – although in the pre-social solitary life in the primeval forests Rousseau envisions little chance for the encounter or clinamen. “Les hommes, si l’on veut, s’attaquoient dans la rencontre mais ils se recontroient rarement. Partout régnoit l’état de guerre, et toute la terre étoit en paix.” [“Men, if you like, attack one another when they meet, but they meet rarely. Everywhere reigned a state of war and the whole earth was at peace.” (J.-J. Rousseau, Essai sur l’origine des langues, Bordeaux, 1970, pp. 96-97)] Rousseau is certainly not an emphatic philosopher of the encounter – his primitive human atoms are rather phlegmatic – they meet rarely in that pre-social ‘patriarchal age’ – but if they meet – they do not unite or form aggregates – they attack one another out of fear and weakness. He differs little from Hobbes in his view of the state of nature as a state of war originating in fear.

Although primitive man is ferocious, Rousseau conceives him as being mostly stationary, retreating into his lair rather than expanding his domain. Only the “man in society” restlessly extends himself beyond his customary place – “isolated man” contracts himself like a snail in his shell, he knows neither law nor property – the model for ‘homme isolé’ is Cyclops in his cave, a boulder rolled across the entrance.

Sovereign Law is apriori a state of exception or a suspension of law. It is (for Agamben) the establishment of a Hobbesian type sovereignty in which sovereignty overpowers the lawless state of nature by erecting its own quasi-lawless non-natural state of exception. The state of nature and state of exception are almost mirror images of each other – both are grounded in fear.

The similarity to the classical argument is even more apparent when Agamben must concede – again following Schmitt – that there is also a “close relationship” between the state of exception and “civil war, insurrection, and resistance.” (State of Exception, ibid. p. 2) Just as Hobbes’ war of all against all projects what he experienced as the horrors of the English civil war and regicide - upon a traumatic state of nature. What else is the “global civil war” – Agamben cites both Schmitt and Arendt as his authorities for this concept – than a more contemporary version of Hobbes’ English civil war cum state of nature?

But the disturbing thought which Agamben suppresses – and which is in plain view for Hobbes and his disciple Schmitt – is the ‘scandal’ of the mortality of the ‘mortal god’ (deus mortalis) – the Leviathan. Its monstrous construction is held together by the mutual fear of its subjects. The Leviathan was formed to arrest the war of all against all (alias civil war) – and it can perish by the same cause.

In a passing remark in State of Exception Agamben does allow for a ‘parallelism’ in an extreme situation between state authority and a revolutionary organization – both claiming ‘force of law’ – or a force more or less liberated from ‘law’.

“That is to say, in extreme situations “force of law” floats as an indeterminate element (floating signifier sm) that can be claimed both by the state authority (which acts as a commissarial dictatorship) and by a revolutionary organization (which acts as a sovereign dictatorship).” (State of Exception, ibid., pp. 38-39) He does not specify if these two rival forces of law are confronting one another in a revolutionary situation – or if he is merely affirming the equivalence between a state dictatorship and a dictatorship instituted by a revolutionary organization presumably after the overthrow of state authority.

Commissarial dictatorship and sovereign dictatorship are concepts Schmitt introduces in his book on dictatorship; both are provisional apparatuses. A commissarial dictatorship is one allegedly established to return a state to an existing constitution; a sovereign dictatorship is set up to initiate a government based on a new constitution. Sovereign dictatorship is Schmitt’s term for the revolutionary overthrow of established government – he favours the commissarial dictatorship. Such a dictatorship does not ‘abandon’ the law – it sustains even in suspension a relation to the existing constitution. It would not regard its actions as ‘pure violence’. The sovereign dictatorship is the ‘natural’ enemy of the commissarial dictatorship – and the state of exception it decides upon is the purest threat to whatever sovereign who until then had decided on the exception.

The symbiotic resemblance/correspondence and general mutability between states of exception, states of civil war and revolution erodes the absolutist claim of any sovereign power, its ‘force of law’. In reality each of these historical material constructions is governed by a higher law of ‘plus ça change’. (The exceptional situation in Egypt now after its “second revolution” of June 30th is a case in point. See my essay Infinite Coup – Notes on the Egyptian Revolution, at Faust Series Opus 9, online - on the first Egyptian revolution of January 25th 2011 for some observations regarding the volatile hermaphroditic nature of that first revolution-coup or revolution-counter-revolution.)

To complete the circle – the state of nature is how sovereign power perceives the breakdown of its law and order in times of insurrection, whereas the state of exception is the defensive and punitive sovereign response to this breakdown – a suspension of all law in its turn. The breakdown of law and order from the point of view of sovereignty is above all – when another opposing force claims an equal or exclusive right over life and death.

A symmetry of opposites would seem to arise between the insurrectionary state of nature and the sovereign state of exception – a “negative identity” which might be called after Hegel – “die wesentliche Beziehung der Entgegensetzung” (“the essential relation of opposition/counterposition”, G.W.F. Hegel, Wissenschaft der Logik II, ibid., p. 160).

But whereas the classical political philosophy of Hobbes and Rousseau situates the state of nature prior to the forced association of humans ensuing from the need to reduce fear (Hobbes) or the awakening of the human affect of pity (Rousseau) – Agamben’s “(…) no-man’s land between public law and political fact, and between the juridical order and life (…)” (State of Exception, ibid., p.1)) situates the state of nature (the living being, life, bare life) as a sort of doomed nature reserve within sovereignty/the sovereign matrix itself. But the internalized ‘state of nature’ within the sovereign apparatus is not natural – and Agamben’s no-man’s land is actually safely within the hermetic borders of sovereignty. Although one could also argue – as Esposito does – that also in Hobbes, the state of nature is not a quasi-historical point of origin – but is preserved within the ‘political-civic state’ as a vestigial ‘modern archaic’ (l’arcaicità del moderno). For Esposito the ‘modern archaic’ means “(…) the permanence of the origin at the moment of its leaving.” (Roberto Esposito, Communitas The Origin and Destiny of Community, Stanford, 2010, p. 25)

Most ‘liberal interpretations’ of Hobbes’ idea of the ‘contract’ between the sovereign and the people underestimate his ‘negative anthropology’. Equality in Hobbes’ commonwealth means the equal capacity to kill and be killed – hence fear grounds the sacrifice of liberty underlying the political covenant – making it holy or sacred. “Here lies the double layer that is least visible in the Hobbesian text. Differently from what is generally held, the political-civic state is not born against or after the natural one but through its reversed inclusion in terms of an emptiness rather than a fullness.” (Esposito, ibid.)

Life or the living subject is constituted in or by Agamben’s machine of sovereignty in the same way, that Foucault’s ‘infamous men’ exist only as they are captured, their trace registered in the archives of the police (see Michel Foucault, Lives of Infamous Men in Power, ed. James D. Faubion, New York, 2000, pp. 157-175). ‘Infamous men’ do not have memories – they are memories of a state archival apparatus. As a conscious species, they are a class lower even than ‘replicants’ in Blade Runner echelons.

For Agamben each of us is such an infamous man alias homo sacer, a mere reflex or effect of that ‘paradigm of government’ he calls the ‘state of exception’. Thus his acerbic critique of Foucault’s notion of subjectivity in his essay “The Author as Gesture” would serve equally to uncover the shortcomings of his own perspective. As Derrida notes, - never did Foucault have such a cruel admirer… Agamben questions Foucault’s insistence on the death of the author-subject in his theory (influenced by Blanchot) of what is an author. He mocks Foucault’s aporetic stance – his ambiguity in this central question: “On the one hand, he repeats several times that he has never ceased working on subjectivity, while on the other hand, the subject as a living individual is present in his research only through the objective processes of subjectivation that constitute this subject and the apparatuses that inscribe and capture it in the mechanisms of power.” (Giorgio Agamben, Profanations, New York, 2007, pp. 63-64)

3. Hobbes - Inventor of ‘Bare Life’?

Hobbes is never far beneath the surface in all of Agamben’s definitions or expositions of homo sacer. Behind the crust of sacrality, or homo sacer’s most ambivalent sacredness, is the stark realism of Hobbes mechanical philosophy of nature – the actions and reactions of bodies, forces and motions. Carl Schmitt in Political Theology emphasized Hobbes’ non-theological “nominalism and natural-scientific approach and his reduction of the individual to the atom.” (Political Theology, Cambridge, 1983 p. 47) Hobbes is a model for Schmitt (he addresses Hobbes almost in the French style as his ‘master’) because his system of absolute sovereignty or monarchical dictatorship was devised in the midst of the English civil war; its architecture reflecting the absolute collapse of all legitimacy of government based on customary revelations. Hobbes saw the political reality of his time as a ‘state of exception’ without a state.

After the beheading of the English monarch Charles I and the flight of the court, the abolishing of the monarchy and declaration of the Commonwealth of England, Hobbes must have truly conceived his Leviathan as if ex nihilo – out of the void of sovereign powerlessness. In bizarre deference to the enemy Cromwell and the dramatic overthrow of the monarchical world – Hobbes names his new absolute sovereign state a Commonwealth (civitas).

Schmitt in his turn wrote his Political Theology which opens with the thought so precious for Agamben – “Sovereign is he who decides on the exception.” – after the collapse of the German Kaiserreich in the wake of its defeat in World War I. The melody in Schmitt’s opening stanza is distinctly mimetic of Hobbes’ motto of the Leviathan – auctoritas, non veritas, facit legem (authority not truth makes the law) – which he also quotes directly at the end of chapter 3.

Even when Agamben cites another author – such as Badiou – Hobbes is constantly lurking. For example – in a passage bearing great resemblance to many of Esposito’s delineations of Hobbes’ Leviathan – Agamben approvingly cites Badiou’s definition of the state as an un-binding, not as a social bond. “It has been rightly observed that the state is founded not as the expression of a social tie but as an untying (déliaison) that prohibits (Badiou, L’être, p. 125) (…) Déliaison is not to be understood as the untying of a preexisting tie (which would probably have the form of a pact or a contract). The tie itself originarily has the form of an untying or exception in which what is captured is at the same time excluded, and in which human life is politicized only through an abandonment to an unconditional power of death.” (Giorgio Agamben, Homo Sacer Sovereign Power and Bare Life, ibid, p. 90) On the same page of Being and Event from which Agamben is quoting Badiou adds, “This idea goes back to Hobbes of course (the war of all against all necessitates an absolute transcendental authority) (…)” (Alain Badiou, Being and Event, London, 2007, p. 109)

But it is not just generally the war of all against all, which makes a transcendental authority unavoidable – for Hobbes it is a terrifying equality amongst men in the state of nature - paradoxically forcing them to establish an absolute inequality in their mode of governance. The first precept of Chapter XIII of the Leviathan “Of the Naturall condition of Mankind, as concerning their Felicity, and Misery.” determines that men are by nature equal. “For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others, that are in the same danger with himselfe.” (Thomas Hobbes, Chapter XIII, Leviathan 1909 edition [1651], The Online Library of Liberty)

One of the first aspects of this natural equality noted by Hobbes (the equal capacity to kill and be killed) – leads directly then to Agamben’s distinguishing trait of sovereignty, the politicized ‘correction’ of the state of nature – the “abandonment to an unconditional power of death”.

Hobbes’ equality is not the French Revolution sort of equality (still so touchingly invoked by Badiou, Ranciere, Balibar et al) of fraternité, egalité, liberté. These are qualities of men in society not in solitude.

The equality Hobbes finds in the state of nature is one of dread – because no man is essentially better than any other – all desiring to attain their benefits and ends – they are ruthless competitors and predators upon one another. Natural equality is itself an un-binding – the absence of fraternité or community. Liberty is only the organism’s way of conducting itself in the world, natural freedom of movement. Equality in the state of nature must transform itself into utter inequality in relation to the absolute ruler – the dissolution of all bonds external to the state (undoing any possibilities of disastrous clinamen or encounters) – and the total abandonment of one’s physical and mental liberty or ‘natural rights’ to the ruler including one’s innate power to kill. The ruler/sovereign alone is the only individual who does not forfeit these powers. Hobbes’ equality is a translation of the atomism immanent in early mechanical philosophy to a theory of the state – all atoms are equal to all other atoms – likewise a human atom – but in the political sphere the consequence of such equality is the individual voluntarily subjugating himself per founding contract to the absolute sovereign, the Leviathan. Notions of freedom or freedom of will do not appear in Hobbes except as mortal dangers for the commonwealth. Baroque Modernity flickers in the guise of ‘scientific thinking’, suppressing the more patrician knowledge of the Renaissance. How alien to Hobbesian philosophy is the Renaissance world of the nobleman Montaigne whose alter ego on earth Étienne de La Boétie, was the author of a radical tractate against “voluntary servitude”. La Boétie’s condemnation of self-enslavement was also Montaigne’s credo (influencing Rousseau and a whole tradition of French political thought). Montaigne though could also observe – quoting the authority of Plutarch – that the distance between some humans is as great as that between the human and the animal.

Hobbes’ depiction of men in a state of nature is a far more potent source for Agamben’s ‘bare life’ than the archaic figure from Roman law – homo sacer or even the Aristotelian distinction between bios and zoe (political life and mere life). Men in a state of nature are also continuously exposed to death from one another – when law in the ban abandons homo sacer – he more or less reverts to the state of nature. But ancient law is then finished with him – it stops at the limits of the ban. Or rather the law is itself limited by its own ban. Not so in Hobbes. The law or commonwealth ingests the state of nature within itself – in the figure of the sovereign who is the only one not to relinquish his power over death. The state of nature is no longer exterior to the commonwealth – but forever ‘banished’ within the Leviathan. The famous illustration of the Leviathan shows a giant man (Macroandropos) whose body consists of hundreds of lesser bodies. The sovereign though like homo sacer is also included by being excluded – he is the only one left behind so to speak in the state of nature. Sovereign power/exception and bare life (in the Hobbesian guise of equal atoms) are not just homologous – in the sense of the law which is in force but does not apply – the abandoning to the law or by the law – ; Hobbes deduces the ‘right to punish’ or the unconditional power over life and death belonging to the sovereign alone (after everyone else has renounced his right) from the ‘pre-political’ state of nature. It is through Hobbes’ reasoning that Agamben comes to his surprising conclusion: Sovereign power is the outlaw homo sacer himself. He is the state of nature at the heart of sovereignty – Agamben calls him the wolf man in keeping with Hobbes’ use of the phrase homo homini lupus est for men in a state of nature. Since the sovereign is the only one allowed to remain in a state of nature vis-à-vis the subjects of the commonwealth – he is also the wolf man in the position of sovereign. “Sovereign violence is in truth founded not on a pact but on the exclusive inclusion of bare life (state of nature sm) in the state. And just as sovereign power’s first and immediate referent is, in this sense, the life that may be killed but not sacrificed, and that has its paradigm in homo sacer, so in the person of the sovereign (emphasis mine sm), the werewolf, the wolf-man of man, dwells permanently in the city.” (Homo Sacer, ibid., p. 107) (Agamben might have been thinking of Hitler’s self-given nickname ‘Wolf’ and his various secret headquarters such as “Wolfsschanze” in Poland, “Wolfschlucht I and II” in Belgium and “Werwolf” in the Ukraine.)

One can see how the verve of Agamben’s argument leads him to empower homo sacer – even as he is still exposed to death from anyone, he himself, released by the ban into the state of nature, has the power to afflict death.

Here homo sacer as the sovereign ‘wolf man’ metamorphoses from the lowliest of creatures into an omnipotent bandit – not abandoned to law – but ‘above the law’ (included and excluded).

It is difficult to follow though – why Hobbes who so adamantly sought a state which would serve to protect the individual (in particular the sovereign individual) from the volatility of his fellow subjects – would be content to artificially reinvent the chaotic state of nature in the form of a political state. Why would he want to simply return men “(…) to that ill condition, which man by mere nature is actually placed in (…)”? (Hobbes, Leviathan, Chapter XIII ibid.)

Would that not be the utter failure of his commonwealth? Yet precisely this is the equivalence Agamben proposes to find in Hobbes – but only by regarding the commonwealth itself as a permanent state of exception. The state is no sooner founded than it is already dissolving itself – and the dissolution of the state is thus the state of exception. But it is a particular state of exception – not just the suspension of law – it is the exact replica of the state of nature “within the foundation of the City”. Agamben repeats this formula in numerous ways – even offering a series of circles as a diagram – demonstrating how the state of nature and the state of law are at first two separate circles, but with the outbreak of the state of exception they are both inside of one another – how they can both be inside and outside of one another is a kind of topological miracle – and finally in figure 3 when the exception has become the rule – the two circles “coincide in absolute indistinction”. (Homo Sacer, ibid., p. 38)

If finally the state of nature and law absolutely coincide in the state of exception which has become the general name for the paradigm of government – how can that government designed to combat the dangers of the state of nature form an identity with that state without destroying itself utterly from the inside? Is this Agamben’s aporia or Hobbes’?

Hobbes the natural philosopher desacralizes homo sacer, or in Agamben’s terms, returns him to the profane sphere. The figure who is consecrated to the gods – in this inverse sacrality – but cannot be sacrificed (meaning executed, ritual killing) but can be killed by anyone at any time – still trailing his ‘sacredness’ with him – is for Hobbes simply the physical capacity of any man to kill any other man – in a state of nature. He projected this free reigning physical capacity of equal human atoms upon a negative arcadia minus kinship despotisms – such as the pre-political ‘patria potestas’: the absolute dominion of the father over his household is the ancient precursor and model of the ‘state of exception’. Obviously the form of government does not alter the physical capacities of men nor their conatus – so that this ‘state of nature’ – or human nature or the ‘bare state of nature’ (Hobbes) – is ever present. It is the potentiality of the physical condition of men at all times – thus the logic of the commonwealth – all men must forfeit their liberty and their ‘identity’ per an act of authorization of the sovereign – the sovereign is the only one who preserves ius contra omnes as in the state of nature.

Although both Esposito and Agamben detect the persistence of the archaic as an atemporal state of nature in Hobbes’ constructions of the Leviathan – they part ways in their judgement of the power of the founding contract. Agamben’s quasi axiom “The state of nature, is, in truth, a state of exception, (…)” (Homo Sacer, ibid., p.109) compels him to reject the idea of the contract in total – the city is never really founded or rather it is dissolved and re-founded with each new sovereign decision. The whole ‘fiction’ of the contractual agreement of the subjects to their sovereign as their representative is thus abolished. “All representations of the originary political act as a contract or a convention marking the passage from nature to the State (…) must be wholly left behind.” (ibid.) Instead he posits an inextricable convergence between homo sacer or bare life, the state of nature and the state of exception – somehow glued together by his concept of the ban, itself a form of abandonment or dissolution. Esposito on the contrary – sees in Hobbes’ “theory of authorization” – the initial forfeiting of liberty to the sovereign, their ‘mortal god’ (Hobbes) – so that all his actions are done as if they were the actions of each of his subjects – as the most despotic part of Hobbes’ construction. The contract authorizing the sovereign of the commonwealth as absolute proxy for his subjects becomes the act by which the subjects forfeit all autonomy and their own subjectivity – or capacity to act: “To be identical to the sovereign means to give completely one’s own subjectivity to him. It means to renounce the margin of autonomy with respect to his actions, precisely because they are considered as one’s own. (…) it isn’t the distance or the transcendence but the identity of the sovereign with respect to the subjects that sets in motion the sacrificial dispositif that authorization should have blocked.” (Roberto Esposito, Communitas The Origin and Destiny of Community, Stanford, 2010, p. 31) The contract or rather contracts – as the subjects make covenants with one another for this purpose - bind the subjects far more fatally to the sovereign than any vestige of the state of the nature per state of exception. The sovereign himself is not bound by any contract to his subjects – to instil fear and terror in his subjects (“keep them all in awe”) is the only ‘contract’ the sovereign ever need fulfil. The sovereign possesses a double ‘immunity’ in relation to his subjects – the contractual authorization by his subjects and his original rights from the ‘state of nature’, which he alone has retained. In this sense, in Hobbes’ commonwealth it is the subject, who abandons himself to the sovereign per contract – and not the law, as Agamben tirelessly repeats, which abandons the subject per ban.

Agamben’s own mythologeme of the state of exception cum state of nature belies a sentimental romantic belief in the power of the outlaw or the lawless zone of indiscernability – whereas any ordinary state is armoured with state apparatuses manufacturing laws and decrees to suit its own convenience. How else can the sovereign express his absolute will to his subjects except through a whole ‘library of Babel’ of one sided laws and contracts? Even a despot must establish a relation with his minions. Besides the contract is as ancient as homo sacer – Sumerian contracts written in cuneiform letters on clay tablets are amongst the oldest relics of human civilization.

4. Kafka’s Contract

Despite its ambiguity as a figure of Roman law - homo sacer still is a figure of law. The ambiguity stems from the word sacer itself – suggesting a kind of sacrality while meaning in practice – that such a person is cursed by law (sacer esto) – to be excluded from human society and thus no longer to be protected by human law. The punishment of homo sacer also ‘permits’ although (apparently) it does not command or require that homo sacer be killed. But if he is to be killed – and this can be done by anyone at anytime and at any place or location – his death or killing will not be considered a crime, but neither is it the carrying out of an execution. The enforcement of the decree of homo sacer is not a necessary corollary of the judgement or a prescribed event – homo sacer indeed belongs to that vague and elusive category of law, which Agamben describes as ‘being in force but not signifying (applied)’ (See Homo Sacer, ibid. p. 52) The condition of suspension is also equated with the principle of the floating signifier, a determinate principle of linguistics and all structuralist thought: “(…) the floating signifier – this guiding concept in the human sciences of the twentieth century – corresponds to the state of exception, in which the norm is in force without being applied.” (State of Exception, ibid., p. 37). Although the law could be applied whenever an ‘enforcer’ should feel compelled to carry out homo sacer’s sentence of death. In theory homo sacer can live to a ripe old age, prosper and die a natural death in the bosom of his family. Homo sacer approximates pure potentiality (which includes impotentiality) or the actuality of being and not being – nothing in the judgement of homo sacer commands that it be obeyed or how it should be obeyed – if it is in force it is equally not in force, essentially inoperative. (see Homo Sacer, “Potentiality and Law”, ibid., pp. 39-49)

Homo sacer is ‘free’ to be hunted – not just killed – he is both killable and huntable. To kill one has to first find the quarry. As he is not physically incarcerated – the whole world is his prison or rather the arena where he will be meted out death. He is more like a gladiator – because the law of homo sacer does not prevent him from defending himself – killing his would-be killer.

If for Schmitt the sovereign decision on the exception implies the sovereign’s granting itself extraordinary powers to restore normality – to exit the exception – Agamben’s idea of the state of exception, sovereign ban – is an extraordinary abandonment, an abstention from decision. The sovereign bans itself from deciding on its own ban. Agamben derives his political-ontological thought of sovereign abandonment – the so-called sovereign ban - from Heidegger and Jean-Luc Nancy rather than from Schmitt. The sovereign fills in for Being to whom beings or subjects are abandoned – in a relation of no relation. The practically minded jurist Schmitt wishes to use his juristic means to manage chaotic external disruptions to sovereignty or the state – whilst not abandoning all connection to the norm of law. The sovereign decision on the exception is a conserving defensive act of pure application – outside of the norm. “The state suspends the law in the exception on the basis of the right of self-preservation, as one would say.” (Carl Schmitt, Political Theology, ibid. p. 12)

In the case of homo sacer, the state or sovereign power has absconded from its task of enforcing its own decree. The secret of the law of homo sacer – is that it is not enforceable – the ‘sovereign ban’ is a self-prohibition, the sovereign disallows itself to act upon its own ban – a power of no power.

In principle a person could be both homo sacer and a contract man.

The contract enters the void opened by the sovereign’s indifference to its own ban. Perhaps every homo sacer must naturally attract its contractual supplement.

Here homo sacer is not comparable with the figure of Joseph K or any of the arrested persons in Kafka’s Der Prozess (as Agamben would imply) – the law is slow and amorphous and appears in all sorts of unexpected places – or rather the court is all of this – but it does not just retreat from its right and power to kill – randomly ceding this power to an unknown enforcer x at an unknown time etc. – or perhaps never. Homo sacer is a much more hopeful sort of condemnation than the “arrest” in Kafka’s world of Der Prozess. Nothing prevents homo sacer from fleeing to a place where no one knows him – or he could disguise himself like Ulysses or have plastic surgery done on his face like Humphrey Bogart in Dark Passage. One could also imagine, that homo sacer might eventually be forgotten by a potential killer – and if he were to be killed – not particularly because he is homo sacer.

The court on the other hand would never forget K – because it is in the nature of the court that it never forgets. The court in Kafka’s vision is not a state of exception – it is the entity/celestial body most distant/non-contiguous from the state of exception in the galaxy of sovereign powers. The court is a sovereign power which never needs to suspend the law – its every movement and breath, the way its judges and advocates lie in their beds or turn towards the wall – all of this is the law.

But like Benjamin’s “divine violence/power” (göttliche Gewalt), the court is a kind of premonition of “the coming world” – where rank and order is reversed, “divine powerlessness is higher than divine power”. Wherever the court though enters into the earthly world it can only “breathe destruction” – but this is not a result of the suspension of law, it is a characteristic of the court to do so. That is why says Benjamin “nothing in this world is constant and no form can be grounded in it, let alone sovereign power as its highest principle.” [“Daher ist in dieser Welt nichts Stetiges und keine Gestaltung auf sie (zu) gründen, geschweige denn Herrschaft als deren oberstes Prinzip.” Welt und Zeit, in Walter Benjamin, Gesammelte Schriften Frankfurt, 1991, Bd VI, p. 99]

Kafka’s title alone The Trial (Der Prozess) indicates that the law does signify –however desultorily it has moved from the state of virtuality/potentiality to one of actuality – the moment it begins, even in all its grotesque preliminary antechambers, its airless mansards – it is complete, actual. A trial is by definition an application of law – no matter how much delay and digression it includes.

As K will discover, from the moment he is arrested while still in bed, he has become a veritable creature of the court. The only ‘work’ truly expected of him is the conduct of his trial – in itself futile. He will never be pronounced innocent – he can at best only prolong the trial, postpone the end.

The first appearance of the court employees in K’s bedroom signifies not the law’s ‘abandonment’ of K (Agamben’s phrase for the condition of homo sacer) but rather the law’s ‘re-possession’ of one of its ‘abandoned’ subjects. As the old adage goes – possession is nine tenths of the law.

The world of The Trial is not identical with the world of Kafka’s Before the Law – there perhaps the law is indefinitely distant and apathetic – its own apathy infects the man from the country – who is condemned to persist in a semi-voluntary ‘place arrest’ – not daring to leave the gate of the law and not daring to enter either. He simply wastes away in anticipation of ‘entering the law’. Agamben sees in Kafka’s fable a sort of mystical proof of his system of analogies/homologies between the sovereign ban, the state of exception, the floating signifier, Kant’s notion of the law being in force but not signifying, Aristotle’s potentiality of not being or never crossing the border to actuality etc. Whatever the resemblance of Agamben’s concept of sovereign exception to the structure of Before the Law (“According to the schema of sovereign exception, law applies to him in no longer applying, and holds him in its ban in abandoning him outside itself.” Homo Sacer, ibid., p. 50) – the same is not true of The Trial. In The Trial – the subject/object of law K – is not ‘before the law’ with no entrance – he is irreversibly ‘in the law’ – with no exit. So that the remark of the priest to K in the chapter “In the Dome” of The Trial – : “The court wants nothing from you. It receives you when you come, it lets you go when you go (…)”quoted by Agamben as “summarizing the essence of the court” (Homo Sacer, ibid., p. 50) – congruent with his proposed matrix of the sovereign modi of inclusion/exclusion and abandonment – could rather be understood as a kind of cruel joke or decoy.

The priest speaks to K during their chance meeting in the cathedral. Although in The Trial nothing really happens by chance – K is subjected to an oblique system of total surveillance and universal denunciation (indispensable to any sort of law enforcement) – so that wherever he goes, whatever he does is apparently noted down by countless unseen scorekeepers – until it finally tallies with his death sentence. Rather than being sublimely indifferent to K – the court (not the usual court or law but one operating parallel to conventional justice) follows him around.

In his essay “The Underground Current of the Materialism of the Encounter” Althusser relates the parallelism of Spinoza’s philosophy starting from the divine void – to the parallelism of Epicurus’ rain of atoms. Kafka’s world of the court is also a transcendent void (beyond which is nothing): the judges to whom K is never presented, the unknown whereabouts of the high court exists parallel to those other quotidian worlds through which it passes (mostly on the margins – damp lofts in the slums). The world of the court is both parallel and alien to ordinary law and its application - because it is composed at least in part of atoms of the world to come.

The parallel worlds of law – not just multiple – never meet in the exterritorial topologies in which K’s trial unfolds. The atoms of law rain down next to the atoms of ‘The Trial’ – but rarely or never touching one another. But perhaps this is just the nature of law to be endlessly distant from how it is applied.

On that particular dark rainy morning – shortly before the end (the name of the final chapter) – K was supposed to have met an Italian business friend, at the request of his immediate superior in the bank – to escort him on a tour of the city. The guest appears very early at the bank – announcing that he only wants to see the Dome – arranging to meet K there later that morning. The Italian does not keep the rendezvous with K at the Dome – instead his ‘substitute’ the priest is ‘waiting’ for K – and addresses him sharply about his trial. The priest “belongs to the court” – he identifies himself as the prison chaplain. He mounts a cramped pulpit and calls out Josef K’s name – as he tries to leave the Dome.

It is as if – the text suggests as much – the bank director and the court (that other court) had conspired under the pretext of the Italian business friend’s tour of the city’s monuments – to lure K to an assignation with an official of the court – the prison chaplain.

One would rather sum up the court’s practice – the court takes it time with you, but when your time comes (time’s up), it leaves nothing to chance.

The priest tells K that his trial is in a bad state – that the sentence (Urteil) does not come all at once – but that the trial (Verfahren) slowly changes into (übergehen) the sentence. (Franz Kafka, Der Prozess, Frankfurt, 1960, p. 154).

The chaplain warns K that he is mistaken about the court and consequently about the chaplain himself.

The parable Before the Law perversely reappears in this scene of semi-casual ‘last rites’ – as “the introductory scriptures to the law” illuminating K’s sort of mistakenness about the court - Täuschung – which also means deception. The chaplain quotes the fable in its entirety and then proceeds to dissect it patiently with K – as if K’s position were comparable with that of the man from the country who is at all times ‘free’ to leave – while K obviously is not. The chaplain so demonstrates what it is to be mistaken about the court.

Perhaps Agamben is also mistaken about the court.

Quite contrary to Agamben’s schema of the sovereign ban – the court in Kafka’s The Trial does not remain forever in abeyance – in force but not signifying. The trial or the potentiality of the judgement – eventually slides into the actuality of K’s execution.

5. A Law Older than the State

But for all of its vagueness and laisser-faire appearance – homo sacer is still a concept of ancient Roman penal law. So that describing homo sacer as an element of a ‘state of exception’ would amount to nonsense. If law is suspended – the definition of a ‘state of exception’ according to Agamben who is following Carl Schmitt – even if still ‘in force’ – then all law is suspended – including the law of homo sacer. Homo sacer is a concept of penal law – it is not anomic in the sense of being outside of law, an exceptional decree. Even if homo sacer (the individual condemned to be homo sacer) is himself outside of the law – the subject of a sovereign ban, a limit case of the law – the ‘law’ of homo sacer, the ban itself, is not outside of the law.

Adorno remarks “Law is the Ur-phenomenon of irrational rationality.” (Negative Dialektik, Frankfurt, 1982, p. 304) Nowhere more in evidence than in Agamben’s attempt to cross the bottomless pit he sees yawning between “norm and reality” or law and its ‘application’ with his interpretation of the “state of exception”. “(…) the impossible task of welding norm and reality together, and thereby constituting the normal sphere, is carried out in the form of the exception, that is to say, by presupposing their nexus.” (Giorgio Agamben, State of Exception, Chicago, 2005, p. 40) The state of exception appears then to lose its entire exceptionality – because in Agamben’s scheme any attempt to apply a norm, carry out the imperatives implicit in law and its juridical apparatus is doomed to failure – unless the application of the norm is first suspended. Perhaps Agamben is both too legal and not legal enough in his thinking, for he is perplexed by a truism of law – that a “legal idea” needs someone to apply it, the law does not immediately move into action or act on its own: “That the legal idea cannot translate itself independently is evident from the fact that its says nothing about who should apply it.” (Schmitt, Political Theology, ibid., p. 31)

But Agamben’s aporia lies both in and beyond the law – his concept of the state of exception must hold a space free within the law at all times - for the ‘threshold’ of “pure violence without logos” (Agamben, ibid.) meaning the pure facticity of dictatorship or the ‘state of nature’.

Could homo sacer carry out his sentence upon himself?

If he were to kill himself – his action would presumably not differ in value from any other’s that would end his life for him. His death is not a sacrifice – no matter who is the perpetrator of the deed. He would not be dying by his own hand in the manner of Seneca, Lucian, Valerius Asiaticus, at the command of the emperor. In Roman law the death sentence in the form of an execution is at the same time a sacrifice, a ritual killing – says Agamben. By placing homo sacer beyond the pale of sacrifice – the law also frees itself of the need or obligation to sacrifice homo sacer – or in other words to execute him. One could also regard homo sacer as an oblique form of reprieve, a kind of indefinite stay of execution. Of course this anomaly of sovereign power is not a disguised leniency or ‘sparing the vanquished’. It seems rather, in the interpretation of Agamben, to be a vestige of the precursor of the law of homo sacer – in the absolute right of patria potestas over life and death of his offspring.

The family is thus the first zone of indistinction between life and a law older than the state – where the law of the father is the sole jurisdiction over the bare life of his offspring.

If in Hobbes’ (and Agamben’s) state of nature – every man has the capacity to kill every other man, homo sacer’s judgement – sacer esto – simply abandons him to this unspecific death threat rooted in human life in a state of nature – without law. But an older pre-political law condemns each member of a household, but especially the sons, at any moment to a very specific potential death at the will of the paterfamilias. The judgement or sentence is immanent in the structure of the family itself – the crime or transgression is belonging by birth or slavery to such a household. Kafka’s Das Urteil reflects patria potestas as brutal patriarchal ressentiment - an aging father standing upright on his own bed in his shroud-like nightshirt suddenly pronounces the death sentence upon his unresisting son (after duly listing a catalogue of the son’s imaginary and trivial misdemeanours): “I sentence you to death by drowning” – as if the history of law were compressed in this one sentence. The son rushes out immediately into the traffic and throws himself off a bridge. In Mérimée’s story Mateo Falcone, set in Corsica of the 19th century, a Corsican father mercilessly executes his 10 year old son for a breach of the mountain code of honour: the child betrayed a wounded bandit to the voltigeurs (“the yellow collars”) for a silver watch. The mother tries to plead for her son – she says to the man “He is your son.” His answer is: “Leave me alone. I am his father.”

Flaubert, the ‘idiot son’ of his own family, retold Mérimée’s tale of the treacherous venal child nearly verbatim.

These are literary relics of a real genealogy of the paternal power over life and death. Life exposed to death is an anthropological constant of the family or clan structure. It is a biopolitical fact of the realm of zoe itself, the self-preservation of ‘mere life’ – not of sovereign power or bios. Sovereign power must first wrest this power over life and death away from the paterfamilias, before it can become the ‘originary political element’ (Agamben). Considering that the religion of ancient Rome was centred around the hearth or household

– the rights of the father – paterfamilias - can be seen as the most originary ‘political theology’ of ancient Rome.

As Max Weber notes – with the founding of empire (Reichsgründung), the unrestricted power of the father (schrankenlose Vatergewalt) withered – its rights/powers receding, immediately displaced and absorbed by the new ‘universal’ sovereignty of empire. (see Wirtschaft und Gesellschaft, Tübingen, 1980, p. 224) Hannah Arendt (The Human Condition, Chicago, 1998, pp. 27-28, p. 34) also disputes the emergence of the absolute state solely from the chaotic empty state of nature, the myth of 17th century natural law (Hobbes, Rousseau) – the state of nature is not empty and formless, it is full – of families. She proposes instead as the model for the paradigm of government, of ruling and being ruled, exposure of life to absolute power, the most ‘perfect despotism’ – those rights of patria potestas allowing the father to kill his dependents (children, women, slaves) or sell them into slavery etc. These rights belonged to the private rather than public sphere – but when the Roman emperors became known also as ‘father of the people’, domus or basileus (names of a servant for his master) the old Roman liberties of the citizen had already been sacrificed and effaced.

Agamben criticizes Foucault for his “trivial” observation that “for a long time” sovereign power has characteristically had the privilege of deciding life and death. Where did sovereign power obtain this ‘characteristic privilege’? It did not invent it, nor is it an original/necessary attribute of its political theology – in the sense of Derrida’s “mystical foundation of authority”. The privilege over life and death does not originally belong to sovereign power.

Instead “(…) the first time we encounter the expression “right over life and death” in the history of law is in the formula vitae necisque potestas, which designates not sovereign power but rather the unconditional authority [potestà] of the pater over his sons.” (Homo Sacer, ibid., p. 87)

Homo sacer, the forsaken object of the sovereign ban, for whom the law is in force but does not apply, is certainly not the only protagonist of Agamben’s tale of sovereign power. For Agamben the ancient privilege of the father over the life and death of his son expressed in the law ‘vitae necisque potestas’ is obviously more originary than the privilege of sovereign power over life and death – how then can he still claim that “life exposed to death (…) is the originary political element.”? (ibid., p. 88)

The most perfect despotism (for antiquity) did not originate in the polis – but in that hidden violent domain of the paterfamilias – so hermetic that the law could hardly penetrate. The law regarded life or ‘bare life’ in the household as subjugated to the “empire of another law” (H. Wallon, Histoire de l’esclavage dans l’antiquité II, p. 200 cited in Arendt, ibid., p. 34) The ‘empire of another law’ is what is broken in the tragedy of Antigone – Antigone’s tragedy continues the disaster of Oedipus her father – reflecting the traces of patria potestas and its reverse. As an infant Oedipus was left by his father to die on a mountain, because a prophecy had foretold that he would kill his father and marry his mother when he grew up. But Oedipus survives – to unknowingly do exactly what the prophecy predicted. He kills the man (his father) who had intended to kill him – and afterwards he marries the widow, his mother.

The Greek tradition saw the law of the family as a threatening impediment to the law of the state – for the Greeks there could be only one law; the state must be mono-lex to be at all. But vitae necisque potestas lives on in other potent forms – the sacred mytheme or the core revelation of Christianity is God the Father who sacrifices his only Son – “For God so loved the world, that he gave his only begotten Son (…)” (John 3:16)