[Felix Hoenikker]

Bare Sovereignty: Homo Sacer and the Insistence of Law
5:2 | © 2001 Peter Fitzpatrick

'There is no end, there is no possibility of being done with the day, with the meaning of things, with hope....'

(Blanchot 1995: 8)

Introduction1
· It has to be a puzzle how Giorgio Agamben's evocation of 'an obscure figure of archaic Roman law' has assumed such a purchase on recent political and philosophical thought (Agamben 1998: 8).[2] This is the enigmatic figure of 'homo sacer (sacred man)', a figure which for Agamben embodies 'bare life' (Agamben 1998: 8). What is 'bare' about the life of homo sacer is that it can be taken by anyone, and that this is to be done without sacrificing that life (Agamben 1998: 71). Bare life is in this way 'before' the law. It can be, and indeed can only be, taken away without the law's authority or mediation. Such an exceedingly bare life is, for Agamben, manifested in the modern period in Foucault's notion of biopower. Bare life is the object of that power. Yet, for Agamben, Foucault has to be 'corrected', or at least completed, in terms that would advance what Foucault supposedly relegated -- a persistent and illimitable sovereign power dealing death (Agamben 1998: 9). Indeed, this sovereignty, apart from being located by Agamben in particular places, is constituted in its power over bare life, in its producing bare life. Leaving aside the resulting conundrum of something being constituted by what it itself produces, we may simply remark that sovereignty does this by being able to resort to a boundless state of exception which displaces the legal order. Hence, this 'life of homo sacer... whose essential function in modern politics we intend to assert' will offer up 'the key by which not only the sacred texts of sovereignty but also the very codes of political power will unveil their mysteries' (Agamben 1998: 8).
· Perhaps, then, the remarkable impact of a resurrected homo sacer has to do with this discovery of a quiddity in both modern sovereign power and its primordium of bare life. Like its exhausted predecessors, this revivified sovereignty can marvelously combine being determinate with an unconstrained efficacy. Unlike those predecessors, it can do this without recourse to a transcendental reference fusing these two contrary dimensions. Rather, this sovereign power can enclose itself yet extend indefinitely, subsist finitely yet encompass what is ever beyond it. It is little wonder, then, that Agamben's account of this sovereign power alternates vertiginously between various stilled scenes and a hovering evanescence. Nor should it occasion much surprise that, as we shall see, his near-resolution of the divide should veer from a near-complete determination of existence to its near-complete mutation. Along with such oscillations, there are evocations of the law -- of a law which, although orientated towards dissipation or 'indistinction', somehow still retains decisive effect and 'form' (Agamben 1998: 49-62, e.g. 174). It is this intriguingly irresolute law which, in my argument, underpins and provides cogency to Agamben's account of homo sacer and sovereign power. Yet this is a treacherous support because the conditions of existence of such a law, of a law that must in modernity subsist without reference beyond it, these now inexorable conditions, deny the encompassing arrogation of a sovereign power. Of course, modern law has itself carried claims to a determinant sovereignty, but these very claims, I hope to show, are themselves incompatible with any abiding resolution. Can such an indefinite sovereignty, then, be only a vacuity (cf. Bataille 1991: vol. III)? I will conclude, in sympathy with Agamben's effort to place sovereignty socially in the modern period, by integrating my account of the law with a socio-logics which would found or necessitate some surpassing sovereign power, even if of a different kind to the one which Agamben offers.
· Before taking up that ambitious agenda, there has to be an uneasy qualification to my engagement with Agamben on sovereignty and with the archaic redoubt of homo sacer. All summary is fraught but here it is especially so. The main work in which Agamben deals with such things, Homo Sacer: Sovereign Power and Bare Life , is written in an episodic mode (Agamben 1998).[3] It is made up of short, somewhat contained sections, the relation between which is not always evident. In describing a broadly similar writing mode of Agamben's, Wall was of the view that 'it is important to read each section or panel as superimposed on the others or as if each simultaneously occupied the same space' (Wall 1999: 121). This attractive response, in the present setting at least, would produce such an enormity of permutations and combinations as to make impossible any compendious account of what Agamben says. My strategy here is to concentrate on entities and connections in Homo Sacer which Agamben himself advances repeatedly or with particular force, even if this means that my coverage will be less than comprehensive.[4]


Finding homo sacer
· To begin with what is for Agamben decisively a beginning, the informing origin both of modern political existence and of his project as it is being pursued in this and other works, the introduction of 'the protagonist of this book' is provocatively unpropitious: it is, to repeat, a 'bare life, that is, the life of homo sacer (sacred man) ... an obscure figure of archaic Roman law' (p. 8). Seeking out this place of origin, then, we find that usually the study of Roman law, especially of 'early' Roman law, involves a scrupulous effort to reconcile textual fragments, and this exercise is sometimes supplemented by reference to what historical context may be retrievable. Agamben, however, plumps instantly for one text on homo sacer and observes in it a seeming contradiction. He then organizes the more expansively engaged modern scholarship on homo sacer in terms of its not being able to explain one or the other side of the contradiction. From all of which he summarily concludes that 'it appears that we are confronted with a limit concept of the Roman social order' (pp. 73-4). This he does without saying anything about that social order or about why it would be thus limited. Agamben's sights are set elsewhere, being resolutely trained along the lines of the seeming contradiction which translates from Festus, the source of his ur-text, in this way: 'The sacred man is the one whom the people have judged on account of a crime. It is not permitted to sacrifice this man, yet he who kills him will not be condemned for homicide ... ' (p. 71). Since it is not permitted to sacrifice this man, the life of homo sacer could be seen as outside of divine law, and since it is not homicide to kill him, that life could be seen also as outside of human law (p. 73). Being thus outside any mediating or endowing law, homo sacer isfor Agamben the originating figure of 'bare life' or 'bare life as such' (p. 4). And, to repeat, it is this 'life of homo sacer ... whose essential function in modern politics we intend to assert' (p. 8).
· Accompanying this story so far is an alternation which recurs throughout Agamben's book. Human life in this primal bareness is 'included in the juridical order ... solely in the form of its exclusion' (p. 8); 'as such' it is 'outside' human and divine law (p. 8). Yet Agamben's founding authority, Festus, is describing a 'law' which would seem quite inclusively to constitute homo sacer when so 'judged' by the people 'on account of a crime' (p. 71). This judgment may even have involved some form of trial (Fowler 1920: 23). Like Festus, other authorities see the attributing of the status as a penalty laid down by law for crimes which are often specified in the texts and often seen there as basic to the social order. Judgment is described as coming from the people, sometimes from their authorities. There is, however, one further complicating source to be dealt with. Having extracted the extra-legal nature of homo sacer from Festus, Agamben later derives it from Macrobius. He takes Macrobius to observe that 'the fact that the killing was permitted implied that the violence done to homo sacer did not constitute sacrilege' (p. 82). This, however, is to ignore the rest of Macrobius's observation (see Strachan-Davidson 1912: 8-9, volume 1). There one finds that 'those men whom the laws order to be "sacred" to certain deities' are considered as 'of the gods', as already sacrificed; hence, in giving effect to the laws, they could 'be stripped of their bodies and sent thither' (cf. Fowler 1920: 16; Bennett 1930: 7-8). This is a giving effect to or an executing of the law, of the law which sacrifices, and is thus not culpable. The seeming contradiction in Festus is in this way resolved within the law. Yet other authorities view the matter of homo sacer as involving pre-legal popular assertion, often of a 'primitive' kind, and this is seen at times as being later transformed into a judicial trial. [5] Agamben approvingly cites one of the more florid modern perceptions that: 'The entire character of homo sacer shows that it was not born on the soil of a constituted juridical order, but goes all the way back to the period of pre-social life. It is a fragment of the primitive life of Indo-European peoples ...' (p. 104). Indeed, Agamben finds that the pre-legal 'Hobbesian state of nature is ... a condition in which everyone is bare life and a homo sacer for everyone else', not an assessment Hobbes would agree with (p. 106; Hobbes 1952: 85-6 - chapter 13). Agamben holds to all this despite the involving legalism of Festus and despite the necessity for his own central contention that bare life be in some way included by 'the juridical order'.
· This law which creates homo sacer can be delineated in a preliminary way by emphasizing the obvious: that homo sacer is sacred. As sacred, homo sacer occupies a meditative domain in-between the profane and the transcendent beyond. Homo sacer is still of the profane. He fugitively occupies an all-too solid world in which he can be killed without sacrifice. Yet homo sacer is also of the transcendent beyond. He has already been sacrificed. These two dimensions can only be combined in homo sacer because of the confident reference beyond, because of a sacrifice which has brought the beyond into the measure and contingency of a profane world. The life of this sacred man is 'bare', then, only because it has been consigned to an empyrean, leaving nothing for it in the profane world but to be killed. Without some such resolving and pervasively effective reference beyond, beyond life in the world, there is no position surpassing that life from which it can be observed or rendered as bare. And without that resolving reference, we are left with what created homo sacer 'in the first place', with law. Law, in this light, is of the sacred. It determinately combines what is here with responsiveness to what is ever beyond, even if that determination is only and ever 'for the time being'.
The origin and the sacred
· To explore this quality of the sacred and to start setting an alternative career for homo sacer, we can stay in the place of origin and summarily suggest that what is evoked in all this resembles nothing so much as the scene of mythic origin in which complete or deific determination combines with the chaos beyond, the chaos of pre-creation, to constitute the law. Each of these two constituent elements in their extremity is outside the law, but with their decisive combining they become the law and are with-in it.[6] The law which results 'in place of' the origin is oriented towards an exteriority which is of the law yet ever beyond it. This law is determinant but never completely so and it responds to what is ever beyond the determinant, yet it never responds completely. Completeness in either orientation would result in either stasis or dissolution.
· The 'original' or mythic combining of determination with what would transgressively go ever beyond the determinant was once thought of in terms of the sacred. Some quality of the sacred in homo sacer seems central for Agamben. As he helpfully pointed out in an earlier work, '... the sacred is necessarily an ambiguous and circular concept. (In Latin, sacer means vile, ignominious, and also august, reserved for the gods; both the law and he who violates it are sacred) ...', a proposition he immediately goes on to relate to the formulation of homo sacer provided by Festus (Agamben 1991: 105). [7] And Festus explicitly obliges by adding after the explanation of the status of homo sacer that 'this is why it is customary for a bad or impure man to be called sacred' (see p. 71). In agreement with an earlier Agamben, then, my argument will pivot on this ambivalence of the sacred and link this ambivalence to the insistence of the sacred in law, the sacred as determinately restricting or separating off yet going ever beyond restriction -- affirming itself yet being always other to itself.
· In Homo Sacer, however, there is a stark but inexplicit reversal of this standard idea of the sacred. The ambivalence is now denied and the transgressive attributed to a modern neurosis: 'what is at work here is the psychologization of religious experience (the "disgust" and "horror" by which the cultured European bourgeoisie betrays its own unease before the religious fact) ...' (p. 78; cf. Freud n.d.: 154-5). Agamben devotes a chapter to the claim that, in espousing this 'ambivalence of the sacred ', impressionable linguists of Latin were led astray by a nineteenth century biblical ethnographer of taboo, Robertson Smith, and the linguists in turn lead astray all other ethnographers of the sacred (pp. 75-80). Doubtless Robertson Smith had a large influence in this matter on some of Agamben's sources (Freud 1960: chapter 4; Fowler 1920: 17). But to lay the whole notion of the ambivalence of the sacred at the door of this innocuous divine is fantastic. It is not only to disregard much perception of the sacred prior to Robertson Smith but also to discount utterly a varied and large ethnographic observation which Agamben hardly begins to engage with. Why, then, this seemingly imperative desire to reverse himself? What appears to be involved here, although Agamben is anything but prolix in pointing it out, is the affirmation of homo sacer as the prima materia of the sacred, as its 'most ancient meaning' having an 'originary' quality and a specificity which cannot be dissolved 'into an assumed originary ambiguity of the sacred' (pp. 74, 80). This meaning and these attributes have something to do with being somehow outside of the law. Homo sacer is already of the gods. No legally ordained sacrifice is needed to create him. Killing him does not involve the law. His life and its loss entail, for Agamben, none of the mediations of the law. Such a life 'is included in the juridical order ... solely in the form of its exclusion' (p. 8). It is in the light of this focal formula, this 'sole' exclusion, that the ambivalence of the sacred is stilled and its 'ancient meaning' made effective in modernity. This monadic sacred, then, 'constitutes the first paradigm of the political realm of the West', of the now-modern West (p. 9). And it is through designating this realm that the Foucault of 'biopower' is 'corrected or, at least, completed' (p. 9). Before coming to this modern manifestation of the sacred, however, homo sacer has both to survive antiquity and extend to the modern period. It is not evident how he manages either feat.
Modernity and the persistence of homo sacer
· Uncertain as its provenance and significance may be in the earlier reaches of Roman law, the figure of homo sacer poses no problem for the later since it has disappeared entirely. Attenuated links have been made with later forms of punishment but these forms are quite different.[8] Agamben's main contribution to this effort is a bold assertion of similarity between the bare life of homo sacer and the position of the son subjected in Roman law to 'the unconditional authority' of the father, to his 'absolute ... power' (p. 87). Such formulations soon become more hesitant. The father now has 'a kind of unlimited authorization to kill' a son who is 'in a state of virtually being able to be killed' (p. 89 -- italics added). These qualifications are more apt because the power was not absolute and unconditional. It was defined, and confined, by law. The 'life' on which it was brought to bear was a legally constituted status, and it was not subordinated to a wholly unlimited power.
· Extravagant as Agamben's uses of Roman law may be, they pale in comparison to his projection of homo sacer into the modern period. In some of Agamben's most alluring analyses, parallels are drawn between homo sacer or 'a kind of' equivalent in antiquity and what are claimed to be manifestations closer to the modern, what Agamben may mean when referring, in an enviably confident comparison, to 'a tenacious correspondence between the modern and archaic which one encounters in the most diverse spheres' (p. 6). These remain simply parallels, except for one that seems to be the pivotal point, the point of actual or revealed connection between the politics of modernity and what Agamben presents as bare life explicitly. He introduces the point in this way:
The first recording of bare life as the new political subject is already implicit in the document that is generally placed at the foundation of modern democracy: the 1679 writ of habeas corpus. Whatever the origin of this formula, used as early as the eighteenth century to assure the physical presence of a person before a court of justice, it is significant that at its center is neither the old subject of feudal relations and liberties nor the future citoyen , but rather a pure and simple corpus (p. 123).
This is close to fanciful. The reference has to be to the English Habeas Corpus Act of 1679. This was in part a consolidation of what had long been the law and a remedying of minor problems, a measure 'altogether made up of details' as Maitland put it (see Sharpe 1989: 19). A case using habeas corpus in its seemingly modern form can be found in 1214, and from the report of the case it is obvious that the writ was already commonplace (Selden Society 1887: 67). Indeed there were several medieval writs of habeas corpus serving a wide range of functions and the legal usage 'corpus' was not confined to them. Even in its more modern and romantic guise as the vehicle of a nascent liberty wrested from an overweening executive, the writ was not 'used as early as the eighteenth century' but as early as the sixteenth. Nor was there anything 'bare' about the body in question. The writ's injunction to have the body before the court, to bring it within the purview of judicial review, referred to a particular person specified within the law, to a singular legal subject and not just to an organic lump.
· So, homo sacer endures in Roman law and enters the modern 'West' at best spectrally, but what is more significant for my purposes are the terms of that putative persistence, their constitution in or through law, along with the consequent denial of a completeness of sovereign power over a bareness of life. It is now apt to connect these terms to Agamben's corrective engagement with Foucault and with the resulting demand for a sovereign power which Foucault supposedly fails to appreciate.
Completing Foucault
· Admittedly it is not one of Foucault's meticulously grounded notions, but his discovery of 'biopower' does provide some plausible basis for 'bare life'. Agamben's imaginative resort to homo sacer is impelled by its supposedly making good a deficiency in Foucault's scheme. The Foucault unreservedly relied on is the one who saw that in modernity life becomes isolated as an object of perception and regulation, a new domain for the operation of power, a domain in which life is put 'in question' and where it can be both protected and eliminated (Foucault 1981: 143). Such explicit putting in question, it could be added, is for Foucault 'a way of living and not a way of killing', even if the living may not be of an exalted kind (see Foucault 1980a: 60; cf. Agamben 1999b: 220-1). Although Agamben would consider this domain to be continuous with antiquity rather than novel, he accepts it substantially even if he finds it to be pointedly incomplete. Specifically, he sees Foucault as having denied the (continuing) significance of sovereign and legal power -- denied especially by Foucault's setting this sovereign and legal power in opposition to a supervening and tentacular biopower. For Agamben the two modalities co-exist and 'it can even be said that the production of a biopolitical body is the original activity of sovereign power' (p. 6). Doubtless there is much in Foucault to support the charge, most pertinently his perceiving the displacement of an exceptional sovereign power focused on death by a normalizing power focused on life, but to leave it at that is to sell his position significantly short (Foucault 1981: 144). For Foucault also the two powers co-exist forming a 'scientifico-legal complex' or 'a single process of "epistemologico-juridical" formation' (Foucault 1979a: 23). Even more to the point, in a piece commonly associated with his formulation of biopower, Foucault puts the impelling emphasis on a 'governmentality' which has its origins in an 'intersection of two processes', one being a post-feudal 'state centralization' and the other being the 'dispersion' of an ecclesiastical and pastoral power (Foucault 1979b: 7). Although this imports the collective and detailed 'managing of a population', a pervasive sovereignty has not 'ceased to play a role' (Foucault 1979b: 18-19). Elsewhere he says 'the powers of modern society are exercised through, on the basis of, and by virtue of, this very heterogeneity between a public right of sovereignty and a polymorphous disciplinary mechanism' (Foucault 1980b: 106). Nonetheless Foucault claimed to locate 'an important turning point' in the seventeenth and eighteenth centuries when the 'managing of a population', the biopower involved in governmentality, takes on a 'pre-eminence over' sovereignty and law (1979b: 13, 19). Indeed, if the dual formation is to endure, and borrowing Foucault's phraseology, the side associated with life --the 'technology of biopower' or the power of 'keeping alive', the extending to or 'the care of individual life' -- has to exceed sovereignty and its 'putting to death' (Foucault 1991: 220 - 1; 1988: 147; see also Gordon 1991: 14-39).
· To acknowledge Foucault more fully, then, is not only to mark unremarked similarities with Agamben's account but also to provide a contrast to it, and this no more so than in the matter of the containment of 'life'; if in Foucault's scheme life necessarily takes on a certain vitalist -- 'a way of living in complete mobility and not of immobilizing -- [9]then Agamben is more wedded to the 'immobility' of his dedicatory quotation from Paul: 'And the commandment, which was ordained to life, I found to be unto death' (pp. ix, 11). [10] The bare life, typified by the figure of homo sacer , in its sacredness 'originally expresses precisely ... life's subjection to a power over death' (p. 83). And, again in contrast to Foucault's subordination of sovereignty, Agamben announces a sovereignty which produces and dominates bare life -- 'the production of a biopolitical body is the original activity of sovereign power' (p. 6). Most compendiously: 'The sovereign sphere is the sphere in which it is permitted to kill without committing homicide and without celebrating a sacrifice, and sacred life -- that is, life that may be killed but not sacrificed -- is the life that has been captured in this sphere' (p. 83). Crucially for my argument, however, Foucault provides one way of seeing that, in the combination of sovereignty and biopower, 'the commandment' is to death and to life, to a negating exclusion and to an encompassing inclusion. Quite apart from Foucault's 'failure' to provide it, there is yet another and more pointed environment for Agamben's sovereign rule over bare life, and that is found in his extensive reliance on Schmitt's concept of the exception.
Being exceptional
· 'Sovereign is he who decides on the exception', decides on effecting a state of exception to the 'normal' legal order (Schmitt 1985: 5). For Schmitt sovereignty is 'a borderline concept' in that it marks the border between the exceptional and the normal (Schmitt 1985: 5). Put a little more expansively, the sovereign is revealed only in or after the decision on the exception, the decision whether or not a state of exception exists and, therefore, the decision whether the normal order exists. That decision will ever relate to an indeterminate arena and cannot be figured in advance: 'it cannot be.... made to conform to a preformed law' (Schmitt 1985: 6). Or, 'the precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited' (Schmitt 1985: 7). What is entailed, in sum, is an 'independently determining moment' (Schmitt 1985: 30).
· Yet for Schmitt the exception is also imbued with law. Law constitutes the decision-maker and the matters decided upon, broad as they may be -- 'the public interest or interest of the state, public safety and order, le salut public, and so on' (Schmitt 1985: 6). Indeed, it is 'the legal system itself [which] can anticipate the exception and can "suspend itself"' (Schmitt 1985: 14). Admittedly, 'how the systematic unity and order can suspend itself in a concrete case is difficult to construe, and yet it remains a juristic problem as long as the exception is distinguishable from a juristic chaos' (Schmitt 1985: 14). In all, although the sovereign 'stands outside the normally valid legal system, he nevertheless belongs to it', and sovereignty remains 'a juristic concept' (Schmitt 1985: 7, 16). The exception thence becomes unexceptional. It comes to resemble the involving lineaments of the law itself as these were extracted from my earlier dissection of homo sacer and the sacred. The exception manifests a similar combining of law's being determinant with its responsiveness to an exteriority beyond determination, even if the exception is a specific variation of that combining nexus, or a different 'jurisdictional competence' as Schmitt would have it (Schmitt 1985: 7). Looked at from the perspective of the norm, the norm as both the normal order and as a particular rule, it is obvious that this norm cannot be invariant. Instantiations of the norm always entail a transgression of what the norm had been, entail its becoming 'other' to what it was. The norm, in short, always subsists along with its own exception. The exceptional, again, is unexceptional. This self-exception is not, or is not just, a matter of the undermining and the explicit change of the norm. For its sustained integrity, for the norm to remain the norm, it can neither dissolve in what was 'other' to it nor endure in a stasis where it would become increasingly unrelated to a world ever changing around it.
· In adapting Schmitt's 'exception', Agamben aptly catches this 'force' of law in its integral relation to an exteriority: 'The exception does not subtract itself from the rule; rather, the rule suspending itself, gives rise to the exception and, maintaining itself in relation to the exception, first constitutes itself as a rule. The particular "force" of law consists in this capacity of law to maintain itself in relation to an exteriority' (p. 18). Yet he finds that the power of the exception is also quite apart from law. 'The sovereign nomos' cannot be positioned only 'inside', but must somehow extend intrinsically to an 'outside' from which there can be 'the creation and definition of the very space in which the juridico-political order can have validity' (p.19). Only in being positioned outside, says Agamben, can there be 'the space in which it is possible to trace borders between inside and outside and in which determinate rules can be assigned to determinate territories' (p.21). Specifically in relation to the exception, then, in tracing 'a threshold (the state of exception)' between the 'outside' and 'the inside', 'the sovereign exception' serves to 'make the validity of the juridical order possible' (p.19). This assertive 'outside' now proceeds to consume, or to enter, the 'inside' for Agamben pits the exception against the norm in the evocation of a 'new' situation supervening 'in our age', a situation in which there is a dramatic change and the exception, as it were, takes over, or comes more and more to take over, 'and ultimately begins to become the rule' in a displacement of the normal order (p.20). 'The state of exception thus ceases to be referred to as an external and provisional state of factual danger and comes to be confused with juridical rule itself' (p.168). In the result, 'the exception everywhere becomes the rule... and exclusion and inclusion, outside and inside,... right and fact, enter into a zone of irreducible indistinction' (p.9). Or, as Agamben says of his paradigm case (which we will come to shortly), there is 'a hybrid of law and fact in which the two terms have become indistinguishable' (p.170). The indistinction and its impelling exception are conceived of as expansionary or by now near-pervasive, since Agamben presents a brief but impassioned apocalyptic in which they have brought us to the brink of 'biopolitical catastrophe' (pp.12, 188). With this indistinction, both the condition or zone and its component parts are nonetheless delineated with some distinctness and clarity. For example, Agamben instances a strangely solitary factuality in the state of exception when he remarks that 'a person who goes for a walk during the curfew is not transgressing the law any more than the soldier who kills him is executing it' (p.57). And, on the other side of the divide, Agamben's paradigm case of the state of exception is said to be the result of 'juridical procedures' (p.171). The state of exception itself is described in terms of structure, permanence, 'a new and stable spatial arrangement', and accorded the ability to occupy 'absolute space' (pp.20, 169-70,175). How then in 'our age' can there be a combination of such determinate identity or attributes with an expansionary indistinction, a combination found in classic conceptions of sovereign power? The answer, for modernity, would seem to lie in the object of that power, in bare life.
Barely living
· Agamben moves markedly beyond Schmitt's 'exceptional' sovereignty and reinstates something of its classic conception. For Schmitt, the sovereign was still a juridical entity. Both its determinate identity and its ability to extend disruptively beyond a determinate order subsisted with-in the juridical. Nonetheless, Schmitt would sharply distinguish this 'normal' order from an abnormal and transient, and exceptional, occupation of that beyond. [11] The analysis I have just offered would also combine these things in and as law. Expanding that analysis somewhat, the determinate, as the place of determination, and the beyond, to which law has ever to respond, cannot 'in' law be separated from each other, either entirely or in some calculated proportion. Each suffuses the other to its full extent. The responsive cannot be purely beyond and thence be merely inaccessible. It must be positioned in possibility or, put another way, oriented towards determinability. Neither, however, can determinant position be irenically set. The assertion of position has always to be made in relation to the infinitely responsive. Position cannot be enduringly stilled in its completion, or in or at any point, or in any severable part. It is, moreover, the absence, the impossibility, of an assured synthetic shielding which creates the very demand for law, which iteratively calls for the legal decision or for determination 'for the time being'. So, when subsisting in this insistent configuration, sovereignty as the law is constituently inadequate. Even, or especially, at its most settled, it could not 'be' otherwise than responsive to what was beyond its determinate content, but neither can it dissipate in a pure response to what is ever beyond. How, then, having based his exceptionalism in Schmitt's territory, can Agamben move beyond it and find a sovereignty that is not only an 'absolute space', structured, stable, a 'materialization', but also extends to the whole of life (pp.8, 20, 46, 90, 170, 174)?
· The answer is bare life. This is 'the life that constitutes the first content of sovereign power', and the 'production' of that life is 'the originary activity of sovereignty' (p.83). Leaving aside again the circularity, or bareness, of something being constituted by what it itself produces, we find that somehow or other the attributes of that homo sacer which originates bare life are transferred to sovereignty. Again: 'The sovereign sphere is the sphere in which it is permitted to kill without committing homicide and without celebrating a sacrifice, and sacred life -- that is, life that may be killed but not sacrificed -- is the life that has been captured in this sphere' (p.83). This 'bare life or sacred life, is the always present and always operative presupposition of sovereignty' (p.106). It 'becomes the earthly foundation of the state's legitimacy and sovereignty' (p.127). Despite that finite location, 'all life becomes sacred' or bare, and 'the bare life of homo sacer' is now an 'irreducible' an encompassing 'condition in which we.... find ourselves' (pp. 100, 148, 153). Yet this sovereign pervasion itself retains a profane palpability as 'a task', as part of a 'process' (pp. 153, 164). It can still be grasped as a 'space' and as 'the figure of an action' as in:
The sovereign and homo sacer are joined in the figure of an action that, excepting itself from both human and divine law, from both nomos and physis, nevertheless delimits what is, in a certain sense, the first properly political space of the West distinct from both the religious and the profane sphere, from both the natural order and the regular juridical order. (p.84)
This distinctness and seeming solidity appear to accommodate 'bare life as such' in terms of its being the specular concentration of modern sovereign power (pp. 4, 188). Yet it is difficult, to say the least, to comprehend bare life as such. Given its pervasion, how do we know where we may stand apart from it and in some way delineate it or experientially relate to it in its bareness -- in its being 'without any mediation', bereft of any manifesting norms and forms (p. 171)? This difficulty is heightened in bare life's being, or also being, 'a zone of instinction and continuous transition between man and beast, nature and culture', or in its being, or also being, a 'threshold or articulation between nature and culture, zoe and bios' -- between zoe, 'the simple fact of living' or 'simple natural life', and bios, a mediated or 'qualified life', referring to 'the form or way of living proper to an individual or a group' (pp. 2, 109, 181). True to its being of this 'threshold... which is neither simple natural nor social life', Agamben's account of bare life veers from one to the other. In the result, bare life is found to be 'indeterminate and impenetrable' (p.182).
· So, the bare life informing sovereignty also and aptly reproduces its classic pretensions. It can be determinate yet indeterminate and these dimensions are fused in a resolved or 'absolute' achievement. These dimensions, are also, as I have indicated, the dimensions of law in modernity, but, in the absence of a resolving reference with-in law, they can subsist only in apposition, in being proximate and applied to each other along with their being parallel and opposed. I have already, earlier in this paper, emplaced these less than surpassing qualities of a legal sovereignty with-in the bare life of homo sacer, and with-in its character of the sacred. To complete this immanent style of analysis, it would be as well to extract the dimensions of law from what Agamben sees as current manifestations of bare life. In a way this has just been done in relation to bare life in its generality and pervasion, in the entirety of its 'transforming' effect (p. 120). Yet Agamben also instantiates bare life in a diversity -- in, for example, the refugee and 'the zones d'attentes of our airports' (pp. 126-35, 175). There is, however, an instance which hugely predominates, which provides 'the most absolute' realization of bare life, which effects a 'total domination', and that instance is the concentration camp, of the German kind. What is more, 'the camp' is the 'organizing structure of the nomos' that utterly typifies 'our age', 'the hidden matrix and nomos of the political space in which we are still living' (pp. 20, 166).
· Although nomos is the scene of law and judgment, Agamben finds that the 'exceptional' situation of the camp is 'produced' de facto, and that the camp constitutes 'a new juridico-political paradigm' in which the legal question is 'no longer strictly distinguishable' from the factual. Indeed, 'every question concerning the legality or illegality of what happened there simply makes no sense' (p. 170). In this 'absolute indistinction of fact and law' (p. 171), the exceptional becomes normal, and what pervades is something other than the legal -- if not entirely the reign of fact, at least a reign in which law cannot be distinguished from fact. Perhaps understandably then, the bare life which Agamben situates in the camp inclines very much towards the factual givenness of zoe, and towards that determined completeness encapsulated by a homo sacer destined only to lose that life (cf. p. 185). The paradigm of this bare life in the camp, Agamben finds, is the Muselmann, a person still mobile but rendered apparently insensate by his treatment in the camp especially, it would seem, by nutritional deprivation. 'The Muselmann in some sense marked the moving threshold in which man passed into non-man', marking and even becoming, so Agamben decrees, 'a point at which human beings, while apparently remaining human beings, ceased to be human' (Agamben 1999a: 47, 55). This loss of 'all traces of affective life and humanity' can, it would seem, also typify the 'well-fed', such as the commander of Auschwitz, if they become reduced to being a mechanical response to directions (Agamben 1999a: 56-7). Again one must wonder, as with the pervasion of bare life, from what omniscient position Agamben can discern such things -- discern these entities as being utterly and ever beyond the human.
· However, if the camp was typified by a completeness of determination, it also manifested an arbitrariness of decision which was ever open or incomplete. Drawing again on Schmitt, Agamben notes how the introduction of 'indeterminate clauses' into the law in the twentieth century, deciding in accord with 'good morals' or 'public security and order' for example, 'rendered obsolete the illusion of a law that would a priori be able to regulate all cases and all situations and that judges would have to limit themselves simply to applying' (p. 172). Here, so it is claimed, 'situations' are given effect to rather than a rule, but it should also be added that they are given effect by law which absorbs them through an illimitable responsiveness. Agamben sees this modality reflected in the camp by the indistinction between fact and law, yet the 'biopolitical body' that is bare life is produced there by the decision, and the act of decision that is the law, and not simply by a given factuality. So, 'fact and law are indistinguishable' indeed; yet, Agamben adds, 'must, nevertheless, be decided on' (p.27, and see p.173). The meaning of 'bare life' now inclines more towards bios, a mediated life the existence of which is ever and necessarily filtered through 'something else'. Existence of this kind is typified by the homo sacer whose life 'as such' has been sacrificed and set at naught. This vacuity corresponds, it could be said, to the modern conception of the 'pure form of law' described by Agamben, law that 'is all the more pervasive for its total lack of content' and that has force in this 'lack' (pp. 51-2).Connecting these two dimensions of the camp, then, bare life combines set determination with what is ever yet mediately beyond determination. It is life with-in the law.
· It is at this point in the analysis, and starting to move now away from its immanent mode, that the predominant theme of law's insistence can be linked to another kept so far in suspended animation, as it were -- the theme of the constituent excess of life over death in Foucault's combining sovereignty and biopower. True, the occidental modality of rule in its very arrogation of the universal is integrally tied to exclusion and thence to an element of bareness in the life excluded. With its necessary instantiation, those who fall outside of its range, being an assertedly universal range, can only be absolutely apart from and other to the universal. This being utterly apart is, to take an example, often rendered in terms of racism, and it was through racial exclusion that 'the camp' was dedicated to its lethal work. Yet occidental rule in its modern generality does not seek telos as death or in a work of death, or solely in exclusion. With its universal sweep, it also extends in a completeness of inclusion. And with this completeness, the inclusion is more than a situation of simple 'abandonment' where 'something is included solely through its exclusion', returning to Agamben's focal formula (p.18). The excluded refugee, a key instance of exclusion for Agamben, is recognized as part of the 'human' community through international laws of some effectiveness. The overall modality, in short, is one of ambivalence -- one of exclusion and inclusion, of killing and of generating life. Ambivalence does not necessarily import uncertainty. The line between life and death, who is to live and who is to die, is often demarcated with clarity and calculation -- in terms of race, for example. The movement of law in modernity turns recurrently on this ambivalence. With this denial of any assured entry, of any abiding purchase 'before' it, modern law peremptorily excludes us and in so doing creates an abandoned existence. We are in this way bare before the law, and 'always/already' sacrificed in relation to it. Yet this ground of exclusion is itself groundless. In its absence of fixed content, in its vacuity of pure form, and in its absorbing 'the outside into which it is always receding' (Foucault 1987: 34), modern law incipiently includes us, and when so doing it creates mediated life -- and the mediated life is the only life we can know and 'be' with. We cannot live in a bare determination. We can live only mediately.
A socio-logic of sovereignty
· Finally, and moving yet further beyond the immanent, I will offer, as a counter to 'an unconditional power of death' in Agamben's sovereign scenarios (p. 90), a socio-logic of sovereignty which would combine the themes of law's insistence and life's excess. Immanence and the 'work of death' have, however, one last hold on my analysis. [12] Agamben offers, as we have seen, two modes of conceiving a modern bare life and its conjured 'correlate of sovereign power' (p. 153). One mode is that of the totality, a mode in which the pall of bare life/sovereignty is about to encompass all in a 'catastrophe' (p. 12). Even now, 'homo sacer is virtually confused with the citizen' and politics has been 'totally transformed into biopolitics', so much so that it is no longer possible to differentiate 'between our biological body and our political body' (pp. 120, 171, 188). Agamben would qualify yet confirm the totality in envisaging its replacement by an alternative plenitude. This comes with the revelation, unencumbered by detail, of a mutation of the existing situation which is somehow also its redemption (pp. 153, 188). The other mode of conceiving of bare life/sovereignty comes with its varied instantiation -- in 'the camp', refugees, zones d'attentes , and others -- added to the rendering one of them, 'the camp', as paradigm. These two modes correspond, productively I will suggest, to the characteristic attempts in modernity to account for society. Such attempts give effect to, as Lefort would have it, 'an illusion which lies at the heart of modern society: namely, that the institution of the social can account for itself', an illusion engendered by the sovereign claim of society, in the absence of any reference beyond it, to have become 'transparent to itself' or 'intelligible in itself' (Lefort 1986: 184, 201, 207).
· As to the mode of the totality, the proffered variety of ostensibly formed social totalities attests at least to their instability. At the risk of being over-schematic, three related manifestations could be identified. With one, there is an enfolding closure which combines society with some encompassing force or entity. Variants involve some capital pervasion -- of leadership, of communion -- inhabiting society and conferring on it what is in common between its members (cf. Nancy 1991: 3, 12). The most 'perfect' example of this is perhaps totalitarianism, but liberal claims to 'the end of history' could also qualify. This kind of encompassing closure is usually rendered in terms of what is natural or organic about society or its members, or in terms of some purposeful agency, some vital and universal force or formula -- the will of the leader, the spirit of a race, of history, of the people. It follows from its supposed totality that with such a society each member is confined in a relation to the social or to its expression, a relation which displaces or incorporates the relations between members. It would also be the case that society as totality absorbs all alterity. There can be neither division within it nor any one apart from it. And it follows, furthermore, that such a society itself can never be anything other than what it is -- a kind of terminal stasis. On this point the second manifestation of the social totality may seem quite different but it only somewhat moderates the first. Here society is still developing or evolving but it remains society as a totality which is developing or evolving. Its inclusive completeness is yet to come. The third is less a moderation and more a reprise of the first manifestation. Here some force is identified which, although within society, has a comprehensive constituent effect on it -- economy, different diachronies, various sociological laws. Yet with these forces within, we still end up on the plane of the impossible social totality, but now with some pointed emphasis given the further question of how something encompassed within society may also encompassingly determine or impel it.
· As for the mode of a varied instantiation of the social, these comprise claims which would supplement society as totality, yet they tend more to displace it, by positing some distinct, sensate particularity. The social thence becomes bound to its enactment by 'agents', or it becomes operative in 'localized' sites, or it can only be in the perspective or interpretations brought to bear on it. All of these are 'social' in that they represent or perhaps are paradigmatic of a social which thus endures adjectively. But for this society to 'work' in such terms, for its particular entities to be distinct yet in common, it would have to be a society of conjoint insularity in which the entities would be the same as each other, and thence lose their distinctness. The necessity for this strange outcome could be indicated from another perspective: that is, from envisaging the alternative to that outcome. The only alternative which could accord with the terms of that society's constitution would be for the social entities, being distinct, to advance as many different versions of what is social or in common as there are entities. This would be the utter dissipation of the social. If nonetheless, and to repeat somewhat, the social is to be accorded force in this setting where it can only be responsive to disparate entities, then for these to be in common they would have to be rendered the same as each other and thence be in no relation to each other -- another terminal impasse. The seemingly paradoxical price of distinctiveness, then, would be the existence of some determinate and determinant being-in-common inhabiting and limiting the entities 'in' their distinctness.
· Yet in their distinct particularity, these social entities cannot relate simply or solely to a set totality, to some comprehensively determined commonality beyond. That would be to lose the particularity and the distinctness in the comprehensive determination. The scene beyond must be one of possibility. However, and as we have just observed, it must also be a scene of some determinant being-in-common. For the continual constitution of particular social being, there has to be some determinant power to deal with infinite possibility. Although this imperative has provided impetus for claims to a set yet surpassing sovereignty, any dealing with infinite possibility cannot be fixed or totalized. Yet some fixity is imperative. The price of distinctness and particularity is the existence beyond of some set limits but these cannot be enduringly set. In sum, the failure of society to account for itself either as a positively set totality or as a collection of distinct particularities produces two dimensions of the social, dimensions which are disparate yet integral to each other -- the infinite possibility of the social and its determinant/determinate being-in-common. In modernity, it is a sovereign law which constituently combines these two dimensions of the social.
· Such a sovereignty is bare in its own way. It cannot be endowed with content in a death-driven telos or in any terminate work. Nor can it assume a robust materiality or occupy an absolute space, to use Agamben's terms. It does call for some surpassing authority and it does so in accord with the attributes of sovereignty, but not as these attributes are combined either classically or by Agamben.

Peter Fitzpatrick is Anniversary Professor of Law, Birkbeck, University of London. His Modernism and the Grounds of Law was published this year by Cambridge University Press as part of their Cambridge Studies in Law and Society Series. His other books include The Mythology of Modern Law published by Routledge and a collection edited with Eve Darian-Smith, Laws of the Postcolonial, brought out by the University of Michigan Press. He can be reached at peter.fitzpatrick@clickvision.co.uk.