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University of Southampton Research Repository Eprints Soton University of Southampton Research Repository ePrints Soton Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", University of Southampton, name of the University School or Department, PhD Thesis, pagination http://eprints.soton.ac.uk UNIVERSITY OF SOUTHAMPTON FACULTY OF BUSINESS AND LAW School of Law Agamben, the Exception and Law by Thomas Michael Frost Thesis for the degree of Doctor of Philosophy August 2011 ii iii UNIVERSITY OF SOUTHAMPTON ABSTRACT FACULTY OF BUSINESS AND LAW SCHOOL OF LAW Doctor of Philosophy AGAMBEN, THE EXCEPTION AND LAW by Thomas Michael Frost Giorgio Agamben‘s work has been at the forefront of modern debates surrounding sovereign exceptionalism and emergency powers. His theory of the state of exception and engagements with Michel Foucault appear to focus upon sovereign power‘s ability to remove legal protections from life with impunity, described by the figure of homo sacer. Much secondary scholarship concentrates upon this engagement. This thesis contends that this approach is too narrow and assimilates Agamben‘s work into Foucault‘s own thought. Through his engagement with Foucault, Agamben‘s thought is argued to be immanent and directed toward questions of fundamental ontology. Agamben contends that the human being, and all social structures, including law, are defined negatively through being held in relation to an ineffable transcendent ground. This negativity is transmitted through the exception. In challenging foundational mythologemes, Agamben questions received conceptualisations of sovereignty, arguing that sovereignty is a mythologeme used to legitimate and justify governmental praxis. Agamben‘s immanent thought seeks to philosophically justify a messianic politics and form-of-life no longer grounded in negative foundations. This form-of-life Agamben terms ―whatever-being‖, a life lived beyond relationality. This thesis transposes Agamben‘s thought on exception, sovereignty, the human and power into the realm of legal reasoning. A form of ethical decision-making and precedent charitable to Agamben‘s thought is constructed, constituting a unique contribution to jurisprudence. This ethical decision focuses on whatever-being‘s singularity. However, Agamben‘s eschewing of relationality means this ethical decision- making is aporetic, still reliant upon a derivate form of relationality. This thesis illustrates how Agamben‘s thought is constructed through a misreading of Heideggerian hermeneutics and a failure to acknowledge its debt owed to Levinasian ethics. Agamben remains trapped within two critiques of his non-relationality, one drawn from Heidegger‘s hermeneutic circle of Being, the other drawn from Levinas‘s ethics of the Other. Ultimately, Agamben‘s philosophical conclusions are contended to be unsustainable. iv v Table of Contents Table of Cases vii Table of Statutes ix Declaration of Authorship xi Acknowledgments xiii Abbreviations xv Introduction 1 Chapter 1: State of Exception 19 Chapter 2: Foucauldian and Agambenian Biopolitics 57 Chapter 3: Agambenian Sovereignty 111 Chapter 4: Agambenian Ontology 151 Chapter 5: Agamben, Levinas and the Anxiety of Influence 201 Chapter 6: Agambenian Legal Reasoning 235 Chapter 7: Agamben and Hermeneutics 273 Conclusion 315 List of Referencees 323 Bibliography 337 vi vii Table of Cases United Kingdom Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (CA) 263 Broome v Cassell & Co Limited [1972] AC 1072 (HL) 239 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) 263 Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6; [2007] 2 AC 31 81 In re Perrins, deceased; Perrins v Holland and others [2010] EWCA Civ 840 246 Liversidge v Anderson [1942] AC 206 (HL) 25 National Westminster Bank plc v Spectrum Plus Limited and others and others [2005] UKHL 41, [2005] 2 AC 680 246 Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 (HL) 239 R v Anthony Peter Kelly [2010] EWCA Crim 1033 246 R v Callen [1992] 12 Cr App R (S) 60 (CA) 246 R v Majewski [1977] AC 443 (HL) 246 R v Stevens [1993] 14 Cr App R (S) 372 (CA) 246 Re A (Children) (Conjoined Twins: Surgical Separation) (2000) 4 All RE 961 (CA) 97 Vowles v Evans [2002] EWHC 2612 (QBD) 81 United States of America (All Supreme Court cases unless otherwise stated) Boumediene v Bush, 553 U.S. 723 (2008) 241 Clark v Martinez, 543 U.S. 371 (2005) 241 Cuban American Bar Association, Inc. v Christopher, 43 F.3d 1412 (1995) (11th Circuit Court of Appeals) 241 Haitian Refugee Ctr., Inc. v Baker, 953 F.2d 1498 (1992) (11th Circuit Court of Appeals) 241 Hamdan v Rumsfeld, 126 S. Ct. 2749 (2006) 241 Hamdi v Rumsfeld, 542 U.S. 426 (2004); Rumsfeld v Padilla, 542 U.S. 426 (2004) 241 Rasul v Bush, 542 U.S. 466 (2004) 241 Roe v Wade, 410 U.S. 113 (1973) 268 Terminiello v City of Chicago 337 U.S. 1 (1949) 28 United States v Verdugo-Urquidez, 494 U.S. 259 (1990) 241 viii ix Table of Statutes Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations (United States-Cuba) (23 February 1903) TS No 80 240 Executive Order 8749 of 1 May 1941, 6 Fed Reg 2252 (3 May 1941) 240 London Local Authorities Act 1990 c 7, s 41 246 London Local Authorities Act 2007 c 2, Sch 3, para 1 246 Prescription Act 1832 c 71 s 5 242 Statute of Westminster, The First 1275 c 5 3 Edw 1 242 x xi DECLARATION OF AUTHORSHIP I, THOMAS MICHAEL FROST declare that the thesis entitled AGAMBEN, THE EXCEPTION AND LAW and the work presented in the thesis are both my own, and have been generated by me as the result of my own original research. I confirm that: . this work was done wholly or mainly while in candidature for a research degree at this University; . where any part of this thesis has previously been submitted for a degree or any other qualification at this University or any other institution, this has been clearly stated; . where I have consulted the published work of others, this is always clearly attributed; . where I have quoted from the work of others, the source is always given. With the exception of such quotations, this thesis is entirely my own work; . I have acknowledged all main sources of help; . where the thesis is based on work done by myself jointly with others, I have made clear exactly what was done by others and what I have contributed myself; . parts of this work have been published as: Tom Frost, ‘Agamben’s Sovereign Legalization of Foucault’ (2010) 30 OJLS 545 Signed: ……………………………………………………………………….. Date:……………………………………………………………………………. xii xiii Acknowledgements First of all, I would like to thank my parents, sister and family, whose support and help have been immeasurable over the years. My thanks also go to Alex Conte, who first accepted my application to research for a doctorate and acted as my supervisor for eighteen months. His help was very important in the early days of this thesis. I must also thank Oren Ben-Dor, who very kindly took over supervision of the project. Without Oren‘s help, the philosophical development of this work would not have been possible. I am grateful for Oren‘s patience and understanding and ever helpful feedback. Many thanks must also go to those individuals at the Universities of Leicester, Portsmouth, Newcastle and Southampton who have assisted me, both intellectually and in offering teaching that helped fund my studies. At Leicester my thanks go to David Bonner, Loveday Hodson, Aileen Kavanagh and José Miola. At Portsmouth thanks go to Damien Carney, James Kirby and Caroline Strevens for the opportunity to teach there. At Newcastle Kevin Brown, Alison Dunn, Richard Mullender, Colin Murray, Chris Rodgers and Ashley Wilton have helped enormously with the balancing of my first academic post and completing my doctorate. Finally, at Southampton, my thanks go to Nick Gaskell and Natalie Lee as Heads of School. Ed Bates deserves thanks for acting as my PhD advisor. Along with Ed, David Owen formed part of my upgrade panel. David‘s and Ed‘s advice and suggestions have been very important to this work‘s development. Thanks are also due to Alison Boeree, Chris Carter, Jill Elliott, Julia Fionda, Phil Palmer, Steve Saxby, Gill Sivyour, Mark Telford and Jamie Maclean. This project has been helped immeasurably through their support and help with both my teaching and my research. Jamie Maclean had no direct involvement in the research of this thesis. I have had general discussions with Jamie regarding my research topic, and I received very helpful advice and support, but Jamie no direct input into any aspect of the research itself. The mention of Jamie in these acknowledgments is to thank Jamie for his help with my teaching load over my time at Southampton. It is in no way intended to infer any direct involvement on his part in my thesis. Thank you also to Dr Richard Dudley and the rest of the Wessex Lane Wardenal Staff, firstly for offering me gainful employment allowing me to move to Southampton, and secondly for helping me to see the lighter sides of early morning call outs dealing with inebriated teenagers.
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