Crojas in his contribution to the partisan party at LS quotes Agamben:
the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with one another. The suspension of the norm does not mean its abolition, and the zone of anomie that is establishes is not (or at least claims not to be) unrelated to the juridical order
This is a useful quote for understanding a limitation in Agamben, or, less polemically, this quote must be understood in a very particular fashion if it is not be inadequate.
First, the juridical order. The exception is a demonstration that the juridical order is inside or underwritten by the power of the sovereign, that is, by sheer force.
As Crojas quotes from Zizek,
“At the beginning” of the law, there is a certain “outlaw,” a certain Real of violence which coincides with the act itself of the establishment of the reign of law: the ultimate truth about the reign of law is that of an usurpation
In terms of the exception, the threshold and zone of indistinction regarding the juridical order is between juridical modes of sovereign power and nonjuridical modes. Anomie, then, is not normlessness in relationt to all norms but rather specific legal norms. There still exist norms qua the ethical, technical, and procedural mechanisms by which actions in the exception are conducted. Additionally anomie is certainly not a-nomos, in the sense of external to the nomos of the earth in which the specfic juridical order being suspended and the suspending sovereign power are inscribed.
There is, however, an inside-outside relationship relevant here. At least two, actually. Both are bound up with the confrontation of the sovereign with that which threatens it, that is, with that which produces the departure from or breakdown of the normal (regular, predictable, stable) situation without which law can not operate. This departure or breakdown is the condition wherein the sovereign faces or makes a decision upon the exception. (I’d also like to note that “decision on the exception” is a clumsy phrase. Better would be “decision to except,” which implies as well that there are also decisions not to declare states of exception. Those decisions are also worthy of historical and theoretical research, in terms of the criteria by which they are made, the situations wherein they occur, and their results.)
First, (in exposition not in importance or logical or historical priority), there is conflict
between a specific sovereign power, in its juridical and nonjuridical modes, and another existing sovereign or some entity with aspiration to sovereignty (those who seek a coup or to secede and found a new state). The two opposed camps in a confrontation of this sort are external to each other from one perspective (from their own perspectives) such that there is precisely not an inside-outside blurring. Abstracted from all historical content, the two perspectives are identical to one another, just like those who exchange their respective commodities in the marketplace. From another perspective, however, there is such a zone of indistinction, in that the conflict between actually-existing (aspiring) sovereigns still occurs on and is productive of the field that is the social relation of sovereignty.
Second, there is confrontation with something that threatens the very social relationship of sovereignty. Abstracted from all content, there is an incommensurability of perspectives here between sovereign and non- or anti-sovereign forms of social relations. The sovereign must describe its enemy as a nonviable alternative (that which lacerates the social body, to paraphrase Schmitt), a parasite or sickness. That which provokes the breakdown of or departure from the normal order is held to be nonjuridical, empty of meaningful content - juridical content, national or public content in the sense of content that is (reproductive) of the nation or people. That which provokes the breakdown or departure is held to be empty of a certain type content. The sovereign’s response is also empty of a specific type of content, juridical content (law recedes), but full of another, full of sovereignty, saturated with the power that underwrites law.
In light of this second case, Agamben’s work appears inadequate, needing at least to be supplemented if not to be revised. This can be seen in the category of naked life. Naked life is not for itself naked (in the sense of stripped of all determinations), but is so for sovereignty. The critique of sovereignty, like the critique of capital, does not provide us with means to articulate or understand attempts to form its alternative. Nor does the emphasis on the juridical order help us understand the technical and other factors by which sovereignty manages those who are, in one register, naked life. More concretely: those interned in camps have powers - to escape, to communicate with those outside, to injure guards and to otherwise disrupt the function of the concrete apparatuses involved in the production and management of the position of naked life. The insistence upon the nakedness of naked life also thus renders the critique of sovereignty within which the category is articulated less adequate.
The same can be said of those (us) who sell their labor power and who labor, and the insufficiency of the critique of capital resulting from the insistence upon the proletariat qua figure with no qualities or powers other than the power to labor and the power to sell labor power. I also suspect in both cases, sovereignty and capital, that the spatial metaphor of inside and outside is inadequate.
I’m not sure if I reckon that a juridical order really presupposes a ’sovereign’ power in a unitary way. Whilst I’d agree that all law is force, I also reckon that a lot of ‘legal’ relations are actually about reciprocity [at least historically]. Again one problem I find with a lot of Marxist theorising [and with people like Agamben etc.], is the often implicit identification between ‘law’ and the state. Aside from the fact that this is inadequate to describe orders like international law and fails to pinpoint the historical specifity of the law.
Comment by Rob — June 10, 2006 @ 8:59 pm
hi Rob,
Thanks for your comments.
Fair enough re: the equation of law and state. Some questions, if you please -
When you say a juridical order doesn’t necessarily presuppose a sovereign power in a unitary way, do you mean it presuppose on in a non-unitary way? (And if so, what’s that mean?) Or do you mean that it’s not required to make this presupposition?
If the latter, which I assume is what you’re saying but I want to make sure, can you explain or point me toward a (short-ish, preferably online) resouce that would explain? What would law sans state look like? I’ve never thought about these things this way. One thing this would entail is a production of law(s) that doesn’t also produce sovereignty. I’m suspicious of this, but like I said I’ve not thought of this before and am willing to be swayed.
Lastly, do you think what you’re saying challenges the operation of law/sovereign in relation to the exception, as described by Schmitt/Agamben? Because it seems to me one could concede your point that there’s law sans state/sovereign, but still say that, when law and state/sovereign are articulated togething in the fashion described, the ensemble does act the way Schmitt/Agamben describes. That ensemble seems to operate such that sovereignty is above law and capable of suspending it. You seem to be saying that law is not reducible to this.
That would seem to imply a space for the use of law (or the distance between law and sovereignty or the act of separating law from sovereignty) against the sovereign. Is that right? (I don’t really know what that would look like but it’s an interesting idea.)
take care,
Nate
Comment by Nate — June 10, 2006 @ 9:12 pm
The classic work on this is E.B. Pashukanis’ General Theory of Law and Marxism, more recently there is the work by China Mieville on International Law, Between Equal Rights, both of which are excellent and will easily be within your [clearly very good] understanding. If you like I could send you an extract from something I’m working on that explains my own take on this, although it’s at a fairly rough stage it is pretty short.
If you want to know what law without a state would look like just think about international law. Although one might argue that the UN is a state, this is spurious because:
1. International Law has been around longer than the UN or the League of Nations;
2. The UN has no proper monopoly on legitimate violence
What you get here therefore is a series of subjects with a violent lawmaking capacity who are locked in dispute. This resembles how law historically arose, as a subject of dispute rather than a series of ‘rules’. Furthermore, whilst sovereignty may be producesd it is a diffuse, contingent sovereignty which resides within specifc legal actors, and as such ust be constrasted with the unitary model one sees in the state.
To be fair I am actually quite fond of Agamben and Schmitt’s explanations and mostly think of them as being fairly accurate. But I suppose what is particularly interesting is that if they acknowledge a state can differentiate it’s own action as that which is ‘legal’ and that which exists in a legal vacuum they are crying out for an explanation as to th e specifity of the legal form as against other state action.
I’d also say that law is able to be used against the sovereign insofar as its contestible. As a fan of Schmitt [in whatever way shape of form] you should know that he essentially characterises the law as an empty form through which politics are able to be articulated [decisionism]. As Marxists we know that whenever this sort of thing happens it is foolish to just say that this is only going to be decided by the sovereign power [or capital etc.], as we prioritise class struggle as important. Now the impact of class struggle upon decisions is heavily curtailed by a number of factors, but it is there. I mean an examination of the way in which judicial review is used to curtail state action shows that law can at least sometimes be used against the sovereign [and one could consider Marx’s classic comments on the lenghth of the working day].
Anyway these are some fragmentary thoughts on something that has essentially been consuming me for two years.
Comment by Rob — June 11, 2006 @ 5:31 pm
I’d also point out that although the sovereign may put itself above the law during a state of emergency it doesn’t follow that there is no law left. Even during these states of emergency people get married, make wills, buy property etc. - all of this goes on within the operation of the law. What this seems to tell us is that even if the sovereign [taken as Schmitt means it] is able to puts itself above the law, the law still operates.
In terms of the whole Agamben/Schmitt etc. situation I’ve come to them fairly recently and am of the opinion that they have to be put within a more systematic framework. Like, for instance, the concept of Homo Sacer, which I find useful, but I reckon misses the point as to the way in which legal subjects are not just posited through the negation of the ‘other’ but also through dispute with other legal subjects, where they recognise themselves as such. This in turn leads to the linkage between the legal form and the commodity form , which has formed the bedrock for most Marxist jurisprudence.
I attempt to do that here and here.
Comment by Rob — June 11, 2006 @ 5:48 pm
hi Rob,
Thanks for the kind words and the references. I’ll look into that stuff when I get a chance. Please do send the piece you’re working on. My immediate response is … international (or inter-state or inter-sovereign law) doesn’t have a function like a state or sovereign, qua monopolizing power, in relation to the actors involved. On the other hand, those actors are themselves states or sovereigns in relation to others and (for lack of a better term) materiallly speaking their power in relation to each other as international actors is (at least partially) derived from/predicated on that relation - (at least some of) the power they have is taken from us, as with the bosses.
Or, put more simply, given that international law is the law of relations between states, I’m not convinced it works as a model for law without the state. The historical examples you allude to might, though. I can’t speak to that but it sounds tremendously interesting.
take care,
Nate
Comment by Nate — June 11, 2006 @ 9:10 pm
Nate, isn’t the movement one and the same? (Pardon me if I’m repeating something already said or pointing out something obvious - I’ve only scanned the thread!) That is, the external relation of sovereign to sovereign (i.e., the Peace of Westphalia - which, incidentally, grants sovereigns the right to police their neighbours should the country be ill-ordered, in the sense of ‘police’ - international police were the first police) is the same as the internal relation that grants absolute power to the sovereign concerning domestic matters (especially in relation to the confessionals). The internal aspect of sovereignty cannot be separated from the external; that is, the national instantly conjures the international and vice versa. Sovereignty only makes sense in a universe of sovereigns.
Comment by Craig — June 11, 2006 @ 9:38 pm
hi Craig,
I’m not sure. The point I was trying to make is that law in the absence of a sovereign/state doesn’t make sense to me and the example of international law didn’t convince me as a case thereof. The historical examples Rob mentions might, though, if I read them. I’m pretty solid on that, the rest I’m out to lunch on.
When you say it it makes sense, something like this: the sovereign constitutes a people via an appeal to “our way of life” in the context of another sovereign-and-people who are declared a threat, an enemy. That seems fair, though I’d want to say it’d be possible to have solely internal enemies. On the other hand, if one takes sovereign to mean monopoly on legitimate(d) resort to violence, power to kill, then I’m not sure one sovereign needs another sovereign or sovereigns to exist. Given what Rob said about law and sovereignty, I wonder if it’d be fair to say that what you describe is the case in terms of the sovereign in law, but might not have to be the case for sovereigns as such. I’m not sure. Can you expand a bit?
best,
Nate
Comment by Nate — June 11, 2006 @ 10:05 pm
hey Rob,
I forgot to say before, I like your point about marriages and exceptions. One could add to that military law or rules - at a minimum, presumably, in a state of exception there are still order givers and order takers. Someone who shot their commanding officer would still be subject to punishment during or after the exception. So clearly not all law recedes. This is analogous to what I was trying to say about the non-nakedness of naked life, about the nonemptines sof the exception. I think the point about law receding makes more sense in terms of the position of the person excepted, the one on the receiving end. They don’t have legal recourse, they’re not a … legally active subject, so to speak, able to invoke rights and expect punishments to happen to people who do certain things to them and so on. What do you think?
take care,
Nate
Comment by Nate — June 11, 2006 @ 10:09 pm
Isn’t the existence of internal enemies (merely) civil war? It is clearly an exceptional state, but one in which not one single entity is able to successfully claim monopoly. In this case, there’d be the sovereignty relative to your ‘friends’ and the sovereignty relative to your ‘enemies.’ With respect to themselves, they are clearly sovereign: the North was sovereign relative to the people of the North and, vice versa, with the South.
As for the legitimacy: once again, this is a relative term - Canada is legitimate relative to Canadians and America is legitimate relative to Americans. Canadians cannot make laws for Americans and vice versa.
Comment by Craig — June 11, 2006 @ 10:22 pm
hi Craig,
I don’t think the internal enemy is necessarily a case of civil war such that the political entity (political monopoly) breaks down. I’d say that occurrence (sp?) is a result of and rather advanced condition of the existence of internal enemies. I think there can be an internal enemy who is still subject to the hostile sovereign power, just as soldiers of one sovereign can be held prisoner by another. The goal of the sovereign in that case is precisely to prevent anything like secession. The internal enemy cna also exist in a context of conflict with an external enemy - the internal enemy would be whoever aids the enemy sovereign, whether they’re actually (and knowingly) on the enemy’s payroll/loyal to the enemy, or if they’re for any other reason undermining the power to fight the enemy. I think this is what got used against pacifists and others in the US who opposed WWI, and is the logic of the whole “if X then the terrorists have already won” kind of thing in the US.
Anyone in the sovereign’s territory who acted in ways that undermine the sovereign’s power to be the sovereign (which would include threatening sovereignty as such, a formulation I like very much but am not that clear on in my head) would be an internal or potential internal enemy prior to the rupture of the sovereign’s power to act on those people as people inside the territory.
take care,
Nate
Comment by Nate — June 11, 2006 @ 10:56 pm
The only model beyond civil war I can think of would be the Terror, which is a much more dangerous and subtle model. Lefort writes about this in Political Forms of Modern Society and Democracy and Political Theory. Agamben’s essay on ‘the people’ in Means Without End does something similar.
Comment by Craig — June 12, 2006 @ 2:21 am