By Eric Meyer
After the September 11th terror attacks, Western broadcast media repeatedly trumpeted the refrain that somehow ‘everything was different!’ than before that shocking event, and that politics, literature, art, and, yes, philosophy, too, would have to be completely transformed to cope with these striking changes in the contemporary world. The September 11th attacks then marked what Gaston Bachelard and Michel Foucault describe as an ‘epistemological break’ in the contemporary episteme: a disjunction in the subconscious a priori system of knowledge by which human beings ‘make sense’ of their world-historical situation. But, fifteen years later, it can now be asked: Did the September 11th attacks really exert such a stunning effect on the contemporary world? And if September 11th really did change the world, how has Western philosophy changed to keep pace with the contemporary world?
The publication of Giorgio Agamben’s The Omnibus Homo Sacer, written over twenty-five years between the Persian Gulf War of 1990/1991 and the Paris terror attacks of November 13th, 2015, provides an opportunity to consider the effect of those shocking events upon contemporary philosophy, especially since Agamben has made a strenuous effort to bring current events into his philosophy, with predictably mixed results. But does Agamben’s Homo Sacer series really provide an adequate description of the Post-September 11th world? Or have contemporary events outstripped the paradigms that Agamben applies to describe them, leaving critical theorists struggling to make sense of a world that stubbornly refuses to ‘become philosophical,’ even if, as Karl Marx said, philosophy has ‘become worldly,’ and, in becoming worldly, has lost the ability to theorize the events it critiques, to its great dismay.
The first volume of Agamben’s opus, Homo Sacer: Sovereign Power and Bare Life, “was originally conceived,” Agamben observes, “as a response to the bloody mystification of a new planetary order” (HS 12) proclaimed by U.S. President George H.W. Bush in an Address to Congress on September 11th, 1990, in which Bush declared that the Persian Gulf War was the first great test to the Post-Cold War ‘New World Order,’ after the collapse of the Soviet Union made the U.S.A. ‘the world’s only superpower.’ The Homo Sacer series then concluded with Stasis: Civil War as a Political Paradigm, transcribed from “two seminars on civil war given at Princeton University in October 2001” (SCWPP ix) describing the September 11th attacks as part of ‘a global civil war’ within the contemporary world-system, in which the counter-terrorist efforts of ‘the world’s only superpower’ were considered a significant factor in provoking (or even producing … ) these shocking events.
Between these two publications, Agamben also published The State of Exception, in response to U.S. President George W. Bush’s order of November 13th, 2001, “which authorized the ‘indefinite detention’ and trial by ‘military commissions’ … of noncitizens suspected of involvement in terrorist activities” (SOE 3). Bush’s order, Agamben argued, resulted in the declaration of a permanent ‘state of exception,’ by which the executive branch (the President, the Pentagon, the CIA, the US military) assumed a sovereign power to wage counter-terrorist war equivalent to that of the German Chancellor in the Weimar Republic, or to that of the Nazi dictator in the German National Socialist State. The State of Exception created a flurry of controversy which made Agamben an international celebrity, if also something of a homo sacer. And it is these three books—Homo Sacer, The State of Exception, and Stasis—which make up the central argument of The Omnibus Homo Sacer. But in recent articles, Agamben himself has asked whether his works have kept pace with the changing conditions of political life in this Brave New World (Dis)Order, especially after the Paris attacks of November 13-14th, 2015.
On December 23rd, 2015, for example, Agamben published an article in response to the declaration, by French President François Hollande, of a ‘state of emergency,’ giving French police ‘extraordinary powers’ to declare house arrests, to carry out searches and seizures without warrants, and to engage in censorship of the press. Agamben argued that “we cannot understand what is at stake in the extension of the state of emergency in France, if we do not place it in the context of a radical transformation in the model of the state with which we are familiar.” The claims of “irresponsible politicians” that this state of emergency was enacted to protect democracy, Agamben countered, were patently false, since “historians know perfectly well” that the state of emergency was “precisely the instrument by which totalitarian governments installed themselves in power in Europe” during the 1930s and 1940s. Once this state of emergency was declared, Agamben claimed, it would be extended indefinitely until it became a permanent feature of French constitutional law, like the permanent state of exception in Weimar Germany which allowed Adolf Hitler to take power as German Chancellor, and the Nazi Party to rule over Germany from 1933 to 1945. Agamben’s predictions have proved accurate, since the French etat d’urgence was extended five times, until November 2017. And when French President Emmanuel Macron declared it lifted on October 31st, 2017, the French Parliament had already passed a draconian terror law (The Loi renforçant la sécurité intérieure et la lutte contre le terrorisme ) which made the suspension of civil rights a permanent feature of constitutional law, fulfilling Agamben’s worst prophecies.
What’s interesting about this article, however, is that it contradicts the argument made in Agamben’s Homo Sacer series, in which he argues that it is not ‘a radical transformation’ within the sovereign rule of law, but the sovereign rule of law itself which makes this permanent state of exception possible, and which allows sovereign power to exercise extraordinary measures over the private lives of its citizens and subjects, stripping them of their civil and human rights and reducing them to biological organisms (‘bare lives’) subject to the ‘sacred violence’ of the sovereign State. When reduced to ‘bare lives’ subject to sovereign power, the citizens of the Western State become equivalent, Agamben argues, to the ‘sacred men’ (the homines sacri) of Archaic Roman religion, who had been designated as sacrificial victims, but not sacrificed, and who therefore could be killed by anyone without risk of prosecution for homicide under Roman law. Agamben’s Homo Sacer thesis depends upon his argument that there is a ‘zone of in-distinction’ between the sovereign rule of law, and the monopoly on violence that supports it, which threatens to collapse the rule of law into a permanent state of exception, thereby erasing the distinction between the 21st Century Western democratic states, and the 20th Century totalitarian regimes of Stalinist Russia, Nazi Germany, or Fascist Spain and Italy.
But what if the discrepancy between what Agamben calls ‘the state of law’ and ‘the security state’ really stems from the contradiction within Agamben’s Homo Sacer series itself between what he describes as the two paradigms of sovereign power? The first paradigm, which Foucault called ‘the sovereign-and-law paradigm,’ is characteristic of the 17th and 18th century absolutist states, in which the sovereign ruler (the emperor, the king) is the embodiment of the sacrosanct rule of law, while the second paradigm, ‘the biopolitical paradigm,’ is characteristic of 19th and 20th century Western democracies, in which sovereignty is identified with the body of the people or the nation. According to the first paradigm, the sovereign State maintains its monopoly on ‘sacred violence’ against those considered ‘enemies of the state’ by declaring a permanent state of emergency, which allows the sovereign ruler to exercise violence outside the strict limits of the rule of law, while still maintaining a pretext of law, by simply refusing to admit the illegality of its sovereign violence. According to the second paradigm, the Western democratic State rules more discreetly over the body of its subjects by exercising violence only within the strict limits of law, while still creating challenges to its monopoly on violence (protests, riots, terror attacks, etc.) which are easily defeated, thereby stifling dissent within the Western democratic states.
In the Persian Gulf War and the Second Gulf War, the Western sovereign states clearly acted in a state of exception to crush the superficial challenge to their monopoly on violence by obliterating Sada’am Hussein’s Iraqi army, and subsequently blockading and starving the Iraqi citizenry; and after the September 11th attacks, the Western sovereign states again reacted with excessive violence by invading Afghanistan and Iraq, even though the vast majority of their citizens had no connection to the terror attacks. But in responding to September 11th and the Paris terror attacks, the Western democratic states have sometimes acted within the rule of law, by arresting, imprisoning, and even placing on trial, those suspected agents accused of complicity in the attacks, without exercising the excessive violence also evident, for example, in the recent indiscriminate bombing of Mosul and Raqqa. And it can be argued that this second approach is more effective in defeating terrorism, while still preserving the rule of law, than the first response, carried out in the hysteria and fear of a state of emergency. As Human Rights First observes, “Federal civilian criminal courts have convicted more than 620 individuals on terrorism-related charges since 9/11,” while President Bush’s military commissions “have convicted only eight, three of which have been overturned completely and one partially,” thereby showing that the sovereign rule of law of the Western democratic states can still be effective in prosecuting and preventing terrorism, if sovereign violence is exercised within the rule of law. But the strict distinction between the sovereign rule of law and the state of emergency is crucial to maintaining the civil and human rights of both ‘suspected terrorists’ and ordinary citizens, without jeopardizing the ability of the Western states to prosecute alleged terrorists, and to defend themselves against terror attacks.
Although Agamben sometimes speaks as if there were a strict distinction between the sovereign rule of law and the security state, he more frequently argues that the two paradigms exist in a crypto-dialectical, bipolar relationship with each other, as the “dual poles” of a “political machine,” in which ‘the sovereign-and-law paradigm’ remains in effect within ‘the biopolitical paradigm’ of the Western democratic states. But Agamben also argues that “I don’t think we can come back from a state of exception to a state of law,” because the state of exception is the secret crux of both paradigms; and the sovereign state can always exercise violence outside the rule of law, making appeals to civil and human rights effectively moot, whether under a sovereign rule of law or in a security state. By collapsing the strict distinction between the two paradigms, Agamben risks endorsing the subversion of the rule of law performed by the Western democratic states in declaring a state of emergency, in which even the privileged citizens of the Western democratic states are at risk of being accused as ‘suspected terrorists,’ and therefore stripped of their civil and human rights, along with the Muslim refugees and non-Western citizens who are the primary targets of the counter-terrorist state of emergency.
As Kartik Raj of Human Rights Watch argues, regarding the recent changes in French counter-terrorism laws: “International human rights standards are clear about states of emergency. Governments can declare a state of emergency where there is a threat to ‘the life of the nation,’ but the measures must meet strict tests of necessity and proportionality,” which the French ‘Law to Strengthen Internal Security and the Fight Against Terrorism,’ like the American Patriot Act, have evidently failed to meet. “Crucially, the primary aim of any state of emergency,” Raj continues, “should be ensuring the conditions to allow a return to normal policing subject to [the] judicial controls” which exist in the rule of law of the Western democratic states. The crucial aim of the declaration of a state of emergency, in other words, should be to bring about precisely the return from ‘a state of exception’ to ‘a state of law’ which Agamben argues simply cannot take place, and to extend that rule of law to the international realm. Instead of reducing the citizens of the Western democratic states to the status of homines sacri, as Agamben does, it would be preferable to argue that the degraded, dehumanized inhabitants of the contemporary world system—the contemporary homines sacri—should be accorded equal status with the citizens of the Western sovereign states, and thereby afforded equal protection and due process of law when applying for immigration, or when defending themselves against allegations of terrorist crimes.
This is the serious problem with Agamben’s penchant for statements like the following: “If today there is no longer one clear figure of the sacred man, it is perhaps because we are all virtually homines sacri” (HS 115), which conflates the degraded condition of the contemporary homines sacri—Syrian refugees, Iraqi victims of Islamic State terror, Iranian political dissidents, Muslim terror suspects, etc.—with the privileged status of the citizens of the Western states—U.S. politicians, American civil rights lawyers, Western college professors, Continental philosophers, etc.—who are currently in no great danger of being reduced to homines sacri. Agamben’s Homo sacer thesis only confuses the critical issue: Who are the real homines sacri of the contemporary world-system? And what can be done to prevent them from being stripped of their civil and human rights and exposed to sovereign violence? And it is important to preserve the distinction between the sovereign rule of law, and the mere pretext of a rule of law that exists in a fascist or communist (totalitarian) state, since it is only by preserving that distinction that the Western democratic states are able to prevent the precipitous descent into the brutality and violence which is characteristic of both non-State terrorism and State terrorism alike, and to confer civil and human rights, not only upon their own privileged citizens, but also upon the political dissidents and stateless refugees who are the real homines sacri of the contemporary world-system.
Twenty-five years ago, Agamben’s Homo Sacer series was conceived at a perilous time of political dissent and popular revolt, when it appeared that the 20th century Western democratic states might create a state of exception that allowed them to exercise sovereign violence against their own citizens, in a permanent terrorist state like the Stalinist Communist regime or the Nazi terrorist state. But in the 21st century, the Western democratic states have, instead, established a state of emergency that enables the executive branch to exercise sovereign violence against the Muslim states, and against their Muslim citizens, with complete impunity, while still preserving the civil and human rights of their privileged citizens, thereby stifling public dissent against the war-crimes and atrocities committed in the international war on terror. Instead of proclaiming that ‘we are all homines sacri,’ and thereby obliterating the crucial distinction between the privileged citizens of the Western democratic states, and the deprivileged victims of the international war on terror, Western philosophers should declare that the homines sacri of the contemporary world-system are equally human beings, who cannot be stripped of their civil and human rights, except at the excessive cost of exposing the democratic rule of law as a superficial façade disguising the sovereign rule of violence, and thereby reducing the Western states to precisely the terrorist regimes against which we are supposedly fighting in the contemporary international war on terrorism.
This series, Philosophy in the Contemporary World, is aimed at exploring the various ways philosophy can be used to discuss issues of relevance to our society. There are no methodological, topical, or doctrinal limitations to this series; philosophers of all persuasions are invited to submit posts regarding issues of concern to them. Please contact us here if you would like to submit a post to this series.