This is the mini-lecture I got on the war powers topic:
Let's spend a moment or so staging agamben's argument. agamben's main theoretical innovation is to show how biopolitics and law are not two different things, because the sovereign decision (the decision in the extralegal space) is always on life (because it has to decide if the law applies, if this is an 'normal case', that is, a case consistent with 'normal life') and biopolitics always has the legal structure of the exception (even when we aren't talking about laws, anytime there is a category or something fitted to a rule. 'everyone wearing shoes leave the library'= has the trace of both biopower and sovereignty for agamben.
So let's gloss biopolitics for a second. Foucault was like: hey this biopolitics stuff seems dangerous, we should be careful about it. Biopolitics is the paradoxical ability to decide on life in the name of life. It is the identification of humanity as a species, with a statistical bandwidth of normality. As in, to decide what life is AT THE VERY SAME MOMENT one speaks in the name of life. If one speaks in the name of life, in order to be rational or just, one would strictly have to know what one is speaking in the name of. But the moment of the sovereign decision (this is agamben, not foucault) is just fiat, it is just force, it has no logic or categories.
But the difference between agamben and foucault is that foucault was a historicist (this is mean and a gloss, there is more to foucault, but imo he never escaped historicism), meaning he thought in principle the historical context was determinative. biopolitics was contingent, meaning it just arose.through the movement of history without any necessity.
If you are a historicist, it makes a lot more sense to have faith that we could imagine law otherwise or imagine politics otherwise, without the state of exception or bare life. (i.e. the perm for most affs on this topic).
For agamben instead, the whole idea of politics requires irreducibly the production of bare life. that means biopolitics is mostly aristotle's fault, whereas foucault would blame the context it arose in.
Lots of jargon there, so let's unpack.
The 'idea of politics.' Which idea? When aristotle says that the unique thing about humans is they have language and a voice, and can thus select right and wrong, just and unjust and that is what differentiates them from simple biological life (i.e. animals). Why is the aff tied to aristotle's 'idea' of politics?
Most irreducibly (as in, you should have more specific links i.e. surrounding rights discourse, than this, but this is the capital T truth generic link to help you think about it) because the aff has inherited it. politics comes from polis, it is a greek word. more broadly, the entire world is greek, based on greek concepts and greek language.
No one here chose to speak english. John Holland, for example, if it was up to him, would have probably chosen to speak Khalani. I myself am partial to Klingon. But it was not up to us. You do not choose your language. Concepts, and the political advocacies that accompany them, have baggage.
Production of bare life is the originary (as in, the enabling condition, the always already) act of sovereign power. bare life= the indistinguishability between political life and biological life. Why does law always produce bare life? because it has to create dat extra legal space, and dat extra legal space has to create the 'normal', and dat normal is the regular bandwidth that legitimates annihilating anything that is irregular.
The radicality of agamben is again, that getting rid of the state wouldn't even solve this problem if we still had categories. anytime you have a case that you fit to a rule, you're in biopolitics land for agamben.
This sounds really reductionist but that's not a good enough argument against agamben really, because it implies historicism, as in, the historical context is more complex than the agambenian story, which agamben is arguing against. you can't purely look at historical context. history doesn't explain itself, for the simple fact that there is always stuff in the historical context that is not in the historical context. i.e., we've inherited aristotle's language, but he hasn't been around for 2000 years.
Also relevant for this topic is the de facto/jure distinction
The difference between de facto and de jure is the difference between practical instances of a law and the law on the books. At issue is the other within law, the possibility of suspending the law that is necessary for law to exist at all. Why is law’s suspension located within it, as a necessary possibility, rather than being simply a turning off or excluding of law? Every law must be subverted with an extralegal decision in order to be applied in response to the particular case, the de facto, the event. If a particular case coincided exactly with a law, there would be no need for judges or jurisprudence. The application to the particular case is both included and excluded by the law, it is not outside the law; it subverts it from within and in its name.
“Hence the impossibility of harmoniously constructing the relation between the two powers – an impossibility that emerges in particular not only when one attempts to understand the juridical nature of dictatorship and of the state of exception, but also when the text of constitutions themselves foresees, as it often does, the power of revision. Today, in the context of the general tendency to regulate everything by means of rules, fewer and fewer are willing to claim that constituting power is originary and irreducible, that it cannot be conditioned and constrained in any way by a determinate legal system and that it necessarily maintains itself outside every constituted power. The power from which the constitution is born is increasingly dismissed as a prejudice or a merely factual matter, and constituting power is more and more frequently reduced to the power of revision foreseen in the constitution.
As early as the end of the First World War, Benjamin criticized this tendency with words that have lost none of their currency. He presented the relation between constituting power and constituted power as the relation between the violence that posits law and the violence that preserves it:
If the awareness of the latent presence of violence in a legal institution disappears, the juridical institution decays. An example of this is provided today by the parliaments. They present such a well-known, sad spectacle because they have not remained aware of the revolutionary forces to which they owe their existence. . . . They lack a sense of the creative violence of law that is represented in them. One need not then be surprised that they do not arrive at decisions worthy of this violence, but instead oversee a course of political affairs that avoids violence through compromise. (Benjamin, “Zur Kritik der Gewalt,” p. 144)
But the other position (that of the democratico-revolutionary tradition), which wants to maintain constituting power in its sovereign transcendence with respect to every constituted order, threatens to remain just as imprisoned within the paradox that we have tried to describe until now. For if constituting power is, as the violence that posits law, certainly more noble than the violence that preserves it, constituting power still possesses no title that might legitimate something other than law-preserving violence and even maintains an ambiguous and ineradicable relation with constituted power.”