Outlines • No. 1 • 2005 3

Thomas Lemke “A Zone of Indistinction” – A Critique of Giorgio Agamben’s Concept of

Summary namely between the disciplining of the indi- This article reconstructs Giorgio Agamben’s concept vidual body, on the one hand, and the social of biopolitics and discusses his claim that the camp is regulation of the body of the population, on the “matrix of ”. While this thesis is more the . According to , biopolitics plausible than many of his critics do admit, his work is still characterised by diverse theoretical problems. My marks the threshold of political modernity critique will concentrate on the legalistic concept of since it places life at the center of political biopolitics that Agamben endorses and on his forma- order. In this theoretical perspective, there is listic idea of the state. This reading of Agamben leads an intimate link between the constitution of a to a surprising result. By focussing on the repressive capitalist society and : dimensions of the state and the sovereign border bet- “Society’s control over individuals was ac- ween life and death, Agamben’s work remains com- complished not only through consciousness mitted to exactly that juridical perspective that he so vividly criticizes. or ideology but also in the body and with the body. For capitalist society, it was biopoli- tics, the biological, the corporal, that mattered Until recently, the term “biopolitics” as de- more than anything else” (Foucault 2000: 137). veloped by was unknown Furthermore, the introduction of the concept beyond a group of experts and scholars.1 As of biopolitics by Foucault marks a theoretical Foucault understood it, the term designates critique of the “juridico-discursive” model of what “brought life and its mechanisms into power (Foucault 1979: 82). In this model, the realm of explicit calculations and made power is assumed to be exercised as interdic- knowledge-power an agent of transformation tion and repression in a framework of law of human life” (Foucault 1979: 143). He dis- and legality resting ultimately on the problem tinguished historically and analytically be- of . In contrast, Foucault uses the tween two dimensions of this “power to life”, notion of biopolitics to stress the productive capacity of power that cannot be reduced to the ancient sovereign “right of death”. While 1 Previous versions of this paper were presented at the sovereignty mainly operated as a “subtraction conference Bloßes Leben in der globalisierten Mod- erne. Eine Debatte zu Giorgio Agambens Homo Sacer mechanism” that seized life in order to sup- at the University of Hannover in January 2003 and at press it, the new life-administering power is the Nordic Summer University, Laugarvatn, Island in dedicated to inciting, reinforcing, monitoring July 2004. Thanks to participants of those occasions and Annika Balser, and two anonymous reviewers for and optimizing the forces under its control (see their comments and criticism. Foucault 1979).

449225_outlines9225_outlines 22005005 nnr1.inddr1.indd 3 112-08-20052-08-2005 114:16:574:16:57 “A Zone of Indistinction” • 4 Today, the term “biopolitics” is used more amben’s book Homo Sacer (1998) depicts the and more frequently in scientifi c literature and present not as the starting point for potential journalistic texts. Mostly it is employed as a projects of liberation, but as the catastrophic neutral notion or a general category to point endpoint of a political tradition that originates out the social and political implications of in Greek antiquity and leads to the National biotechological interventions. This technol- Socialist concentration camps. In this book and ogy centred approach ignores the historical in the following publications like Remnants of and critical dimension of the Foucauldian Auschwitz (1999a) or State of Exception (2005) notion, how technological developments are Agamben declares that the camp is the “biopo- embedded in more global economic strategies litical paradigm of the modern” (1998: 117). and political rationalities. There are two excep- In the following I will argue that Agamben’s tions to this trend toward a simultaneous gen- reformulation of the concept of biopolitcs is eralisation and depoliticisation of the notion only partially convincing. While his thesis of of biopolitics. Both rely on the Foucauldian the central political signifi cance of the camp is concept of biopolitics, but they do so in very more plausible than many of his critics admit, different ways. his work is nevertheless characterised by di- and (2000) verse theoretical problems. Agamben not only attempt to give biopolitics a positive meaning. fails to make important analytical differentia- By synthesizing ideas from Italian neo-opera- tions, also his conceptual instruments do not ism, with poststructural and Marxist theories, allow him to account for essential aspects of as well as with Deleuzian vitalism, they claim modern biopolitics. that the borderline between economics and My critique will focus on the legalistic con- politics, reproduction and production is dis- cept of biopolitics that Agamben endorses as solving. Biopolitics signals a new era of capi- well as his formalist idea of the state. On a talist production where life is no longer limited number of points I will contrast Agamben’s to the domain of reproduction or subordinated juridical analysis with Foucault’s strategic ac- to the working process: “The subjectivity of count of modern biopolitics, often by referring living labor reveals, simply and directly in to the area of biomedicine that Agamben turns the struggle over the senses of language and to when he illustrates contemporary biopoli- technology, that when one speaks of a collec- tics.3 My main thesis is that while Foucault’s tive means of the constitution of a new world, analysis and critique of the biopolitical project one is speaking of the connection between the stresses the link between forms of subjectiva- power of life and its political organisation. The tion and political technologies, this important political, the social, the economic, and the vital dimension is completely lacking in Agamben’s here all dwell together” (Hardt/Negri 2000: work. To put it shortly, Agamben subscribes 405-6; see also 22-41). In Hardt and Negri’s to exactly the juridico-discursive concept of account the constitution of political relations power that Foucault has shown to be insuf- now encompasses the whole life of the indi- fi cient for the analysis of modern biopolitics. vidual, which prepares the ground for a new In the fi rst part of my presentation, I re- revolutionary subject: the multitude.2 construct the main arguments of Homo Sacer. The picture presented by the second ap- proach is much more pessimistic. Giorgio Ag- 3 It should be noted though that biopolitics in the Fou- cauldian sense is a much broader term since it also 2 I commented on Michael Hardt’s and Antonio Negri’s encompasses subject areas like hygiene, demography, concept of biopolitics elsewhere (see Lemke 2002a). social welfare and insurance systems.

449225_outlines9225_outlines 22005005 nnr1.inddr1.indd 4 112-08-20052-08-2005 114:16:574:16:57 Outlines • No. 1 • 2005 5 Then I will discuss Agamben’s claim that the divine law, homo sacer became some kind of camp is the “matrix of modernity”. In the main “living dead”. part of my paper I shall critically analyse some For Agamben the obscure fi gure of homo theoretical problems, among them the neglect sacer marks the fl ip side of sovereign . of socio-political aspects of the biopolitical As the sovereign is in a position above the problematic and the quasi-ontological founda- law, bare life signifi es a domain beyond his tion of Agamben’s theory. I will end up with competence while at the same time it provides a résumé that sums up the argument. the basis for the rule of sovereignty. Bare life, that seems to be located at the very margin 1. Bare life and the rule of politics, turns out to be the solid basis of a political body that decides not simply over the of exception life and death of human beings, but who will Agamben’s point of departure is a conceptual be recognised as a human being at all. From distinction that according to him characterises this perspective, the production of homines Western political tradition since Greek antiq- sacri is a constitutive but unrecognised part uity. He states that the main line of separation of politics. Not a subject that remains outside is not the between friend and enemy, of law, homo sacer is constituted by political- but the distinction between bare life (zoé) and legal means “to personalize what it excluded political existence (bíos), between the natural from the protection of law” (Vismann 2001, p. existence and the legal status of a human being. 15). Therefore this rightless existence should He claims that the constitution of sovereign not be conceived of as a pre-societal state. power requires the production of a biopolitical Quite the contrary, Agamben makes clear that body. Agamben holds that the institutionalisa- the natural state to which homo sacer seems tion of law is inseparably connected to the ex- to be thrown back is not a residuum of the posure of “bare life”. In this light, the inclusion historical past but the result of social relations. into a political community seems only possible Bare life does not refer to a natural, original or by the simultaneous exclusion of some human ahistorical nakedness but presents an artifi cial beings who are not allowed to become full product, a concealing bareness that hides so- legal subjects. At the beginning of all politics cial markings and symbolisations (Agamben we fi nd – according to Agamben – the estab- 1999b; Lüdemann 2001). lishment of a borderline and the inauguration To be clear: Agamben does not use the of a space that is deprived of the protection of fi gure of homo sacer for a historical recon- the law: “The original political relation is the struction of legal procedures and institutions.4 ban” (Agamben 1998: 181). Rather, he applies it as a theoretical concept Agamben denotes this secret foundation of that is supposed to inform political analysis. sovereignty with a fi gure from archaic Roman As a consequence, Agamben is less interested law. “Homo sacer” designated an individual in the question whether in antiquity human that may be killed by anyone without being beings were indeed confronted with this kind condemned for homicide since he or she had of ban; he is more concerned to display the been banned from the juridical-political com- political mechanism of rule and exception, munity. While even a criminal could claim bare life and political existence. He analyses certain legal rights and formal procedures, this the paradoxical structure of sovereignty that “sacred man” was completely unprotected and

reduced to mere physical existence. Since he 4 For a comprehensive critique of Agamben’s interpreta- or she was ascribed a status beyond human and tion of ancient legal texts see Fitzpatrick 2001.

449225_outlines9225_outlines 22005005 nnr1.inddr1.indd 5 112-08-20052-08-2005 114:16:574:16:57 “A Zone of Indistinction” • Thomas Lemke 6 operates by a suspension of law: the decision (1998:123) implicitly refers to Foucault’s his- about the exception of the rule. tory of the prison and his analysis of the pano- Here we have to note the fi rst difference pticon in : “By paradigm from the concept of biopolitics as Foucault I mean something very precise, some kind uses it. According to Agamben politics is al- of methodological approach to problems like ways already biopolitics, since the political Foucault takes for example the panopticum as is constituted by the state of exception, in a very concrete object while at the same time which bare life is produced. For Foucault, on treating it as a paradigm to explain the larger the contrary, biopolitics is something much historical context” (Agamben 2001b: 19). Like more recent: it marks a historical shift in the Foucault’s of the prison that is at the economy of power that dates back to the 17th same time a history of the present, Agamben’s and 18th century. While Foucault analytically analysis of the camp does not refer to an ar- distinguishes between biopolitics and sover- chive of memories but to an “event that repeats eignty, Agamben insists on their logical con- itself on a daily basis” (Panagia 1999). In this nection: he takes biopolitics to be the centre of perspective, the camp is not a historical fact or sovereign power. In this light, modernity is not a logical anomaly but a “hidden matrix” (Ag- marked by a break with the historical tradition, amben 1998: 166) of the political domain. Like but it only generalises and radicalises what Foucault, Agamben tries to make visible the was always present in the beginning of poli- underlying structure in order to better conceive tics. Nevertheless, modernity is different from the present political constellation. For him pre-modern times insofar as bare life, which the camp is less a physical entity surrounded was once located at the margins of political by fences and material borderlines. Rather, life, is now occupying more and more space it symbolizes and fi xes the border between inside the political domain. As for the present, bare life and political existence. In this view Agamben diagnoses a collapse of the rule into “camp” does not only refer to the concentra- the exception and of politics into life. tion camps of the Nazis or the contemporary Agamben’s reconstruction of the intimate urban ghettos, in principle it denotes every relationship between sovereign rule and bio- single space that systematically produces bare political exception leads to a disturbing result. life: “The camp is the space that is opened Agamben’s thesis that the camp is the “hid- when the state of exception begins to become den matrix of politics” (Agamben 2001a: 48) the rule” (Agamben 1998: 168-9; emphasis in claims an inner link between the emergence of orig.). In other words, Agamben fundamentally and the establishment of concen- displaces the traditional meaning of “camp”. tration camps. In this light there is no safe and The camp that in the past was an expression secure borderline that separates parliamentary of the difference between friend and enemy, democracies and totalitarian dictatorships, lib- symbolises, in Agamben’s work, the state of eral states and authoritarian regimes. This is exception where law and fact, rule and excep- Agamben’s fi rst provocation that we will dis- tion overlap.5 cuss in more detail now. “The stadium in Bari into which the Italian police in 1991 provisionally herded all ille- 2. The camp as the matrix gal Albanian immigrants before sending them of modernity 5 In German the term for “camp”is “Lager”. The “overlap- Agamben’s thesis that the camp is “the hidden ping” of fact and law may be translated as “sich überla- paradigm of the political space of modernity” gern”, the displacement of meaning as “verlagern”.

449225_outlines9225_outlines 22005005 nnr1.inddr1.indd 6 112-08-20052-08-2005 114:16:574:16:57 Outlines • No. 1 • 2005 7 back to their country, the winter cycle-racing of bare life. While other and his- track in which the Vichy gathered torians may insist that the camps of the Nazis Jews before consigning them to the Germans, are a logical exception or a historical epiphe- […] or the zones d’attentes in French interna- nomenon, Agamben searches for the rule, or tional airports in which foreigners asking for the normality, of this exception and asks in refugee status are detained will then all equally what sense “bare life” is an essential part of be camps. In all these cases, an apparently in- our contemporary political rationality. nocuous space […] actually delimits a space in Here we are confronted with a second prov- which the normal order is de facto suspended ocation. While for Agamben all politics is and in which whether or not atrocities are com- always already biopolitics, he claims that mo- mitted depends not on law but on the civility dernity is the biopolitical age par excellence, and ethical sense of the police who temporarily since it is only in modernity that exception act as sovereign” (Agamben 1998: 174). and rule become ultimately indistinguishable. According to Agamben, modern biopolitics After the end of and Stalinism a new is “double-sided: the spaces, the liberties, and era of biopolitics comes into being. There is the rights won by individuals in their confl icts no simple historic continuity between totali- with central powers always simultaneously tarian regimes and democratic states; instead prepared a tacit but increasing inscription of Agamben notes an increasing aggravation of individuals’ lives within the state order, thus biopolitics. According to him, “biopolitics has offering a new and more dreadful founda- passed beyond a new threshold” […]: “in mod- tion for the very sovereign power from which ern democracies it is possible to state in public they wanted to liberate themselves” (Agamben what the Nazi biopoliticians did not dare to 1998: 121). It is the same reference to “bare say” (Agamben 1998: 165). life” that in liberal democracies results in the While the Nazi biopolitics concentrated on pre-eminence of the private over the public identifi able individuals or specifi c subpopula- sphere, while in totalitarian states it becomes tions, “in our age all citizens can be said, in a a decisive political criterion of the suspension specifi c but extremely real sense, to appear vir- of individual rights. But even if both forms of tually as homines sacri” (Agamben 1998: 111). government rely on the same political sub- Clearly, Agamben assumes that the borderline stance – bare life – it does not necessarily mean that once separated individuals or social groups that they are equal in normative terms. Most is now to be found inside the individual body. commentators fail to see that Agamben neither The line of separation between political exist- diminishes the differences between democ- ence and bare life “moved inside every human racies and dictatorships nor devalues liberal life and every citizen. Bare life is no longer rights of freedom and participation. Rather, he confi ned to a particular place or a defi nite cat- wants to show that the democratic rule of law is egory. It now dwells in the biological body of by no means an alternative project to the Nazi every living being” (Agamben 1998: 140). regime or the Stalinist dictatorship, since the Unfortunately, Agamben leaves this aggra- latter radicalise biopolitical tendencies that ac- vation of the biopolitical problem extremely cording to Agamben could be found in various vague. His thesis that rule and exception are political contexts and historical epochs. Thus, marked by indeterminacy is coupled with a Agamben does not mean to reduce or negate lack of conceptual differentiation. To be more these profound differences, but instead he tries concrete: Even if all subjects are homines sacri, to elucidate the common ground for these very they are so in very different ways. Agamben different forms of government: the production limits his argument by stating that everyone

449225_outlines9225_outlines 22005005 nnr1.inddr1.indd 7 112-08-20052-08-2005 114:16:574:16:57 “A Zone of Indistinction” • Thomas Lemke 8 is susceptible to being reduced to the status of a consequence, he cannot analyse how inside “bare life” – without clarifying the mechanism “bare life” hierarchisations and evaluations of differentiation that distinguishes between become possible, how life can be classifi ed and different values of life. It remains woefully qualifi ed as higher or lower, as descending or unclear to what extent and in what manner ascending. Agamben cannot account for these the comatose in the hospitals share the fate of processes since his attention is fi xed on the es- prisoners in concentration camps; whether the tablishment of a border – a border that he does asylum seekers in the prisons are bare life to not comprehend as a staggered zone but as a the same degree and in the same sense as the line without extension that reduces the ques- Jews in the Nazi camps. Agamben privileges tion to an either-or. In other words: Agamben exaggerated dramatisation over sober evalu- is less interested in life than in its “bareness”, ation, since he even regards people killed on whereby his account does not focus on the motorways indirectly as homines sacri (Ag- normalisation of life, but on death as the ma- amben 1998: 114; Khurana 2002). As I try to terialisation of a borderline. For Agamben bio- show in the following section, lacking the ca- politics is essentially “thanatopolitics” (1998: pacity to differentiate is not an accidental fault 122; Fitzpatrick 2001: 263-265; Werber 2002: of the argument, but the necessary outcome of 419). an analysis that systematically ignores central In fact the “camp” is by no means a homog- aspects of contemporary biopolitics. enous zone where differences collapse but a site where differences are produced. Here again 3. Zone of indistinction or the contrast between Agamben and Foucault is instructive. For Foucault biopolitics is not biopolitical continuum? a sovereign decision over life and death. The For Agamben the decision about life and death historical and political novelty of biopolitics “no longer appears today as a stable border lies in the fact that it focuses on the produc- dividing two clearly distinct zones” (1998: tive value of individuals and populations; the 122). This sentence allows for two completely ancient sovereign power that was centred on different readings. If the accent is placed on death is reorganised around the imperative the fi rst part of the phrase that stresses the dis- of life. In this perspective Foucault analyses solution of a clear demarcation line, the border modern racism as a vital technology since it is conceived as a fl exible zone or a mobile guarantees the function of death in an economy line. Or – this is the second interpretation – if of bio-power. Racism allows for a fragmenta- the accent is put on the last part of the phrase, tion of the social that facilitates a hierarchical the phrase seems to indicate that there is no differentiation between good and bad races. longer a borderline at all, that both domains The killing of others is motivated by the vi- have become indistinguishable. This is prob- sion of an improvement or purifi cation of the ably the direction that Agamben takes when higher race (Foucault 1997: 213-235). From he speaks of a “zone of indistinction”, the this point, the second difference between Ag- tendency towards identity of life and politics amben and Foucault emerges. Agamben claims (1998: 122 resp. 148). that from antiquity on there was a structural But this leads into a blind alley. Agamben link between sovereignty and biopolitics, lead- does not comprehend “camp” as an internally ing to an always renewed and ever more radi- differentiated continuum, but only as a “line” calised separation between bare life and legal (1998: 122) that separates more or less clearly existence. Foucault, on the other hand, makes between bare life and political existence. As an analytical distinction between biopolitics

449225_outlines9225_outlines 22005005 nnr1.inddr1.indd 8 112-08-20052-08-2005 114:16:584:16:58 Outlines • No. 1 • 2005 9 and sovereignty, even though he notes their 4. Political economy of life “deep historical link” (Foucault 1991: 102). Agamben sees the novelty of the modern bio- Only the Foucauldian analytical frame allows politics in the fact that “the biological given is the material limits and the historical specifi ty as such immediately political, and the political of sovereignty to become visible by presenting is as such immediately the biological given” it less as the origin than as an effect of power (1998: 148; emphasis in orig.). In the political relations. program of the Nazis, the preoccupation with Foucault shows that sovereign power is life is at the same time a struggle against the by no means sovereign, since its legitimacy enemy. While there are probably convincing and effi ciency depends on a “microphysics reasons to state that in the present we are one of power”, whereas in Agamben’s work sov- step further on the way towards a politicisation ereignty produces and dominates bare life. of nature, there are at least two major problems For Agamben “the production of a biopoliti- that this conception of biopolitics fails to ad- cal body is the original activity of sovereign dress. Firstly, Agamben does not take into power” (1998: 6; emphasis in orig.). The bi- account that the site of sovereignty has been nary confrontation of bíos and zoé, political ex- displaced. While in the eugenic programs in istence and bare life, rule and exception points the fi rst half of the 20th century biopolitical in- exactly to the very juridical model of power terventions were mainly executed by the state that Foucault has criticized so convincingly. that controlled the health of the population or Agamben pursues a concept of power that is the hygiene of the race, biopolitics today is grounded in categories of repression, reproduc- becoming more and more a responsibility of tion and reduction, without taking into account sovereign subjects. As autonomous patients, the relational, decentralised and productive active consumers or responsible parents they aspect of power. In that it remains inside the demand medical or biotechnological options. horizon of law, Agamben’s analysis is more Today, it is less the state that regulates by indebted to (1932) than to Michel direct interventions and restrictions, since the Foucault. For Schmitt, the sovereign is visible capacity and competence of decision-making is in the decision about the state of exception, in increasingly ascribed to the individual subject the suspension of the law, while for Foucault to make “informed choices” beyond political the normal state that operates beneath, along- authoritarianism and medical paternalism. De- side, or against juridical mechanisms is more cisions on life and death are less the explicit important. While the former concentrates on result of legal provisions and political regula- how the norm is suspended, the latter focuses tions but the outcome of an “invisible hand” on the production of normality. Schmitt takes that represents the options and practices of as the point of departure the very sovereignty, sovereign individuals (Lemke 2002b; Koch that signifi es, for Foucault, the endpoint and 2002). Agamben’s analysis is too state-cen- result of complex social processes, which con- tred, or rather, it relies on a limited conception centrate the forces inside the social body in of the state which does not take into account such a way as to produce the impression that important political transformations since the there is an autonomous centre, or a sovereign Nazi era. He does not take into account that in source of power.6 contemporary liberal societies political power is exercised through a multiplicity of agencies and techniques that are often only loosely as- 6 For a systematic comparison between Foucault’s and Agamben’s conception of : Genel 2003; see sociated with the formal organs of the state. also Nikolopoulou 2000. The self-regulating capacities of subjects as

449225_outlines9225_outlines 22005005 nnr1.inddr1.indd 9 112-08-20052-08-2005 114:16:584:16:58 “A Zone of Indistinction” • Thomas Lemke 10 autonomous actors have become key resources tially political economy of life that is neither for present forms of government that rely in reducible to state agencies nor to the form of crucial respects on forms of scientifi c expertise law. Agamben’s concept of biopolitics remains and knowledge (Rose/Miller 1992). inside the ban of sovereignty, it is blind to all Agamben’s concept of biopolitics is marked the mechanisms operating beneath or beyond by a second weakness that also demonstrates the law (see also Bröckling 2003).7 his excessively legalistic approach. Biopoliti- cal mechanisms confront not only those who 5. Conclusion: biopower have been deprived of elementary rights and reduced to the status of living beings. The and thanotopolitics analysis of biopolitics cannot be limited to Our reading of Agamben leads to a surprising those without legal rights, such as the refugee result. Following a binary code and a logic of or the asylum seeker, but must encompass all subsumption that does not allow for differ- those who are confronted with social processes entiations, his argument remains committed of exclusion – even if they may be formally to exactly the juridical perspective that he so enjoying full political rights: the “useless”, vividly criticizes. He reduces the “ambiguous the “unnecessary”, or the “redundant”. While terrain” (1998: 143) of biopolitics by operat- in the past these ominous fi gures inhabited ing with a notion of politics that is at once only peripheral spaces in the so-called third too broad in its explanatory scope and too and fourth world, today in a global economy narrow in empirical complexity. On the one these forms of exclusion can also be found in hand Agamben conceptualises the political as the industrialised centres. As a result of the a sovereign instance that does not allow for crisis of the welfare state and Fordist modes of an outside that would be more than an “inner social integration, more and different segments outside” and an “exception”. On the other hand of the populations are effectively excluded not his presentation of sovereignty is completely only from labour and the working process but limited to the decision on the state of exeption from education, housing and social life (Castel and the killing of bare life. 2000; Imbusch 2001). As a consequence, Agamben presents a By concentrating on questions of law and distorted picture. The main danger today may the fi gure of the sovereign ban, Agamben ig- not be that the body or its organs are targets nores central aspects of contemporary bio- of a distinctive state politics (1998: 164-5), politics. He takes for granted that the state of but – quite the contrary – that we are witness- exception is not only the point of departure for ing an important transformation of the state politics, but its essence and destination. In this under the sign of deregulation, privatisation light, politics is reduced to the production of and liberalisation. It is more and more the sci- homines sacri – a production that in a sense entifi c consultants, economic interest groups, has to be called non-productive since bare life and civil societal mediators that defi ne the is only produced to be suppressed and killed. But biopolitical interventions cannot be lim- ited to registering the opposition of bare life 7 Agamben also completely ignores to address the que- stion whether the biopolitical production of „bare life” and political existence. Bare life is no longer is also a patriarchal project. Indeed, the strict border simply subject to death; it falls prey to a bio- line between natural life and political existence very economical imperative that aims at the increase much resembles the heterosexual order and a gendered division of labor that reduces women to “bare life” (for of life’s value and the optimalisation of its a feminist critique of Agamben’s account: Deuber-Man- quality. Contemporary biopolitics is essen- kowski 2002)

449225_outlines9225_outlines 22005005 nnr1.inddr1.indd 1100 112-08-20052-08-2005 114:16:584:16:58 Outlines • No. 1 • 2005 11 beginning, the end, and the value of life, in single form of exclusion needs to be grounded consensus conferences, expert commissions, in legal regulations, or necessitate a suspension and ethical counsels. This “withdrawal of the of law. Sovereignty does not only reside in state” could itself be analysed as a political political instances and state agencies, it also strategy, though one that does not necessar- dwells in “life politics” (Giddens 1991: 209- ily refuse individuals legal rights. In a more 31) of sovereign subjects who are expected moderate account of exceptionality the suspen- to act in a autonomous ways as individuals. sion of legal rights might remain important in We are not only subjected to political mecha- determining who is allowed to become part of nisms that regulate and restrict our physical a community, who is eligible to legal rights at life; we are also inscribed in what Foucault all. The political strategy, however, that shifts called “arts of government” that direct how to legal and regulatory competencies from the refl ect ourselves as moral persons and parts of public and legal domain to the private sphere, collective subjectivities (see Foucault 2004a). will probably pose a much greater threat in the In fact, Foucault regarded biopolitics as an future. This tendency is already visible; for ex- essential part of the liberal art of government ample, it is possible for private companies to (see Foucault 2004b, pp. 3-28). own and exploit human body substances (see Yet, although the social dynamics of the Andrews/Nelkin 2001). Moreover, this ten- relations between bare life and political ex- dency can already be traced in examples that istence, between technologies of the self and Agamben mentions, namely the admissibility political rationalities, remain theoretically un- of euthanasia and transplantation medicine. derdeveloped in Agamben’s work, his theory Here we can expect that a patient’s legal will recognises that it is not suffi cient to simply and contract relations will take the place of extend legal rights to those excluded. What explicit state prohibitions and regulation. We is needed, however, is what Foucault called a note that in some countries there is already a “new right” (1997: 35) that suspends the dif- public discussion to provide fi nancial com- ference between human being and citizen and pensations for individuals who donate organs, overcomes a legal concept that permanently and there is a growing consensus in the legal re-inscribes the separation between natural community to accept the will of the patient not existence and political life. to prolong life under certain conditions.8 By the analytical focus on a formal and repressive conception of the state and the References theoretical fi xation on the sovereign border Agamben, G. (1999a). Remnants of Ausch- between life and death, Agamben fails to see witz: The Witness and the Archive. New the limits of his own argumentation. Not every York: Zone. Agamben, G. (1999b). Agamben, le cher- cheur d’homme (interview with Jean-Bap- 8 See Norris 2000: 52-3: „Though Agamben does not discuss it, one of the best examples of this collapse of the tiste Margongiu). In: Libération. 1.st april rule into the exception and of politics into life may be 1999. the corporate investigation and purchase of the human Agamben, G. (2001a). Mittel ohne Zweck. Noten genome. The day is at hand when the decision on the human being will become the rule. The defi nition of the zur Politik. Freiburg/Berlin: Diaphanes. human being, like that of death, will become too fl uid Agamben, G. (2001b). Das unheilige Leben. to serve as a guide for the judgement on its modifi cati- Ein Gespräch mit dem italienischen Philos- ons, and lawyers, scientists, and political theorists will simply not be able to chart the expansion of our present ophen Giorgio Agamben. In: Literaturen, boundaries into the dark seas that confront us.” No. 1, 16-22.

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