Agamben has a bunch of different arguments but this is a pretty good explanation from the mich evidence. At the bottom I attached my notes on agamben/foucault from a jon sharp lecture at camp this year. Not sure how understandable it is but read all of this slowly a couple times and it should make a bit more sense.
Good explanation of Agamben’s thesis:
Watkin, 15—Professor of Contemporary Literature and Philosophy at Brunel University, West London (William, “Towards the Critique of Violence,” Agamben, Benjamin and the Indifference of Violence pg 144, dml) [anomie=lawlessness]
The second part of this lethal syllogism is Agamben’s belief that we are all held in a world-wide de facto state of exception, or that the state of exception is now the norm. This leads to a simple concluding deduction on his part: the logic of the state of exception is the logic of all our legal and political situations, so if we pay attention to this logic, first we will see the reality of our situation and second we will also perceive a possible way forward from our current political catastrophe (SE 85–8). This is because, as we said, the gigantomachia in question always concerns a void, here violence as a form of anomie (lawlessness). If we can make it intelligible that state violence is hollow at its core, then we may no longer feel the need to be complicit with or bullied by it.
Taking these comments on board, the law is the founding common of the state, but there is in actual fact no law as such. Law as the norm is only in force as regards the fact of specific cases, so, as we can see, it is founded by what it is taken to found: facts. Mostly this difficult economy between the law and an actual instance of the law goes relatively unremarked upon because, although illogical, it works, it is operative, it sanctions intelligible common-sense and apparently consensual situations we are complicit in our sanction of. In states of emergency or exception, however, where the norms of law have to be suspended due to an exceptional necessity seen to threaten them, a specific fact of law means that the law as such has to be invoked.
We now enter into a profound zone of indistinction as regards fact and norm or proper and common. We have a fact so factical that it is an exception, an ontico-singularity that undermines ontology. And we have a norm so abnormal that sovereigns are the only ones who can speak for the law when a fact occurs which the norms of law have no jurisdiction over. All Agamben argues is that this exceptional state is, when we look at the day-to-day logic of the economy of the interchange between fact and norm in every legal system, in fact the norm. Everything included in the legal system of the West is based on a logically impossible doubly included exclusion. Our entire nomos is, in fact, in a state of anomie because we cannot distinguish between fact and norm, and yet by definition our states must be able to distinguish between them to continue to exist.
Greek terms; zoē refers to pure, biological life—most commonly referred to as “bare life”—while bios refers to politically legitimated life; often referred to in Agamben as “form-of-life.” Another common term is homo sacer; functionally synonymous with bare life in Agamben, it refers to a designation in Roman criminal law that referred to a criminal who could be killed by any citizen without punishment or recourse to a trial, but could not be sacrificed in religious ceremonies as an animal would be.
The governance and organization of political life by separating bios from zoē—creating a form-of-life out of bare life. Agamben thinks this process is unavoidably violent and relies on the exclusion of bare life for every move to inclusion of particular categories of people within any given sovereign form-of-life.
State of exception:
The state in which the rule of law is suspended and the law is enforced through fundamentally arbitrary and violent justifications. The production of this state is necessary for the appearance of smoothly functioning rule of law in general. Importantly, sovereignty is arbitrary/discretionary at its core; though it aims to make itself seem transcendent and create the appearance of external sources of legitimacy for its decisions. Even the basic act of establishing citizenship requires exclusion of those outside sovereign borders/control—that process of separating bare life from a form-of-life is fundamentally exclusionary and thus arbitrary. Thus, the sovereign will invoke a state of exception in particular instances—common examples include the PATRIOT Act, or Guantanamo Bay, and immigrant detention facilities—to create more authority; a publicly arbitrary act of violence inflicted upon “criminals” or “lawbreakers” sends a signal that this arbitrary violence could be exacted upon anyone in the abstract, and the only thing preventing it is the establishment of legal rights for citizens. Thus, a veneer of legitimacy is created for regimes of rights and laws that in reality is based upon fear and violence.
A system, structure, apparatus, etc., is fundamentally incapable of producting the outcome for which it was intended. According to Agamben, sovereignty now is fundamentally inoperative—its purpose is to create an external source of legitimacy for itself, to make its decisions non-arbitrary, but every effort to do so simply widens the legitimacy crisis it faces—every attempt to reshore sovereign legitimacy is accompanied by an escalation of the state of exception.
Messianism/“real state of exception”:
Messianism stems from Walter Benjamin, a Jewish philosopher. While Christianity teaches that Christ was the Messiah and that he will come again and bring humanity to salvation, Benjamin follows Jewish tradition which teaches that the Messiah has not yet come and will not until the end times, and that we will not be able to herald its coming, only recognize it after the fact—his famous quote is “Everything will be the same as here—only a little bit different.” Following this, Agamben believes our task is not to bring about the new world, but to studiously await the Messiah and unmask false Messiahs through our study, sovereigns whose claims to salvation are founded on exclusion. Agamben thinks that this kind of messianic study can bring about the “real state of exception,” in which sovereignty can no longer hide its inoperativity and we are forced to reckon with the necessity of alternate models of political belonging outside of nation-state sovereignty.
Constituent vs detituent power:
Constituent power refers to power exerted vertically, in a hierarchy—to submit to constituent power is to consent to being governed, to the idea that it is legitimate, acceptable in certain instances for someone to exert sovereign authority over another. This doesn’t just mean reform/affirming the state—you can be a constituent revolutionary too! As long as the state form is centered, the logic of sovereignty can reassert itself even in radical politics. Destituent power is the opposite of this; it refers to power exerted horizontally, autonomously, collaboratively—destituent power refuses to be governed, or prefers not to be governed. If reform/revolution are two sides of the same constituent coin, then destituency is the “third option”, or more accurately it refuses any option—it refuses to consider the state as an option in political decisions and aims to construct relations entirely outside of sovereignty/the state—it lets the state “wither away.”
Political life: Inclusion and Exclusion
a. Starts with Foucault
i. All visibility is regulatory
1. Power is inescapable
a. Power = relations of force
b. Power is everywhere so no such thing as liberation if liberation = absence of power
c. Freedom is a form of control
i. Free to make the right call, but if you make the wrong call, gov shows up
2. Repressive Hypothesis
a. Power is held by the authority, it is coercive, top down, model of the age of absolutism
b. For the monarch, let live or make die
i. When you are a subject, as long as you do what you’re supposed to, monarch lets live
ii. If you cross the king in any way, your life is forfeit
c. Reversed now with democracy
i. Let die, make live
1. Concerned with producing us as productive citizens of our society
a. Make live = laws surrounding suicide and euthanasia
i. Government is a productive apparatus, power is that which says yes
ii. Power is productive, not just coercive
iii. Define our selfhood with power
3. Biopower and biopolitics
a. When politics takes the question of life as its object, when ptx takes power to define life, from the regulation of abortion to the legal management of the death penalty.
b. The question of what is the good life is a manner of gov. intervention
c. Power has undergone an evolution.
i. Juridical (monarch) vs. Pastoral power (concerned with how to relate the individual to the group)
1. The shepherd must manage each sheep, the priest is concerned with your soul but only in relation to the congregation
a. This relationship undergoes a radical evolution under the enlightenment
d. Population relations are dangerus
i. We view population like a body, each individual helps make up the body
e. How to relate the individual to the population as a whole
i. When individuals fall outside of the community but inside the population they become a threat to the population as a whole
1. Authorizes violence against those that pose a threat to the population
2. Massacres become vital
a. In order for the body politic to remain healthy the unhealthy must be purged
f. Foucault doesn’t think biopower is bad; he thinks when we don’t pay attention to it it’s dangerous.
i. The universal claims are always suspect
ii. Nominalist – all about the historical context – so concerned with the evolution of concepts over time
iii. What matters is the specifics
iv. Impact turn biopower 2004 Mika Ojakanges Journal of Foucault Studies and Biopower
4. What is to be done?
a. Foucault writes about a lot of specific political instances – asylum, management of mental health issues, prison and geographic and organization of the prison creates control, schools
i. Disciplinary power, must act as if there is someone watching us even if there isn’t
b. Constant criticism – everything is dangerous if you’re not paying attention
i. Question of methodology – particular methods make particular outcomes
c. Rather than a particular blueprint for change, he provides a toolbox for options
i. General intellectual that wants to prescribe universal solutions
ii. Specific intellectual – evaluate a specific context and analyze it on its own terms
1. Role of the Judge
b. Agamben’s appreciative critique “Mitchell Dean AND Demonic Societies”
i. card GOLD The law and Ontology
1. Foucault is concerned with epistemology while Agamben is concerned with Ontology, the study of being
a. Concerned with the continuity within the law
b. The central distinction is to suggest two different forms of life
i. Zoe – biological fact of being life, form of life humans share with animals
ii. Bios – political qualified life, life that is intelligible w/in the matrix of ptx, dates back to ancient Rome, production of political life requires the exclusion of those forms of life that do not have value ie Homo Sacer
1. Homo Sacer = bare life or naked life, from French or German = bare life, Italian = naked life, one is alive but nothing else
2. The sovereign decision
a. Carl Schmitt – the sovereign is the one who decides upon the exception
i. Only the sovereign can establish what/who is excepted from the law
b. Walter Benjamin
i. 20th Century described as a state of emergency/exception
c. Sovreignty begins by establishing the exception In response to a state of emergency but the exception becomes permanent establishing a permanent state of emergency ie. War on Terror and Guantanamo Bay (subject to law, outside the law because there is no war, posed by nonstate actors against state sovereignty)
d. Sovreign responds by suspending and upholding the law at the same time
e. Include through exclusion
f. Zone of exception above and below law and not law
g. Enemy combatant is subject to the law because the law withdraws itself from interaction
3. Killed but not sacrificed
a. Homo Sacer means the individual who is bare life can be killed with no consequence because their life has no value which means they are not the appropriate subject for sacrifice
b. Bare life can be exterminated but not given value, ontolofgical condition, being cannot be retrieved, beyond saving
c. Aff treats x as bare life because they are included within the law but their lives are never given political value because they are less than full humanness, immigrant can never be undone
4. The coming community
a. Agamben’s links can be straight forward
b. Agamben talks about the coming community
i. A form of community that cannot be described or understood w/in our current ontology
1. All community needs commonality, always an outside
2. Every community must have the bare life
3. Rather than trying to expand community so everyone is included, envision/bring about community w/out qualification is the next stage of our political life
a. Whatever being
i. Being should exist w/out qualification
ii. Means w/out end
iii. Secondary sources help