Agambens challenge to normative theories of modern rights

Jean-Philippe Deranty
Macquarie University

Introduction
1. Agambens theory of rights, law and the State, is explicitly devised as a radical
critique of, and departure from, normative accounts of modern politics. Each of its
main theses is meant to reject one fundamental tenet assumed by those normative
accounts.
2. Thus, he argues that political sovereignty is not grounded in the community, or the
people. In essence, it is the power to declare the state of exception. This power
therefore constitutes the paradigm of government (Agamben 2003). This can be
verified factually with the historical tendency of liberal democracies to rely more and
more on the subjection of the legislative to the executive, through procedures akin to
the logic of emergency. It can also be verified conceptually with the work of Carl
Schmitt.
3. Conceived as exception rather than as democratic procedure, sovereignty operates
under the logic of the ban (Agamben 1998; also see Nancy 1993), that is to say, it is
at bottom a form of inclusion in the social order through exclusion, or an exclusion
that maintains within the order. Since the essence of the political is exception,
inclusion through exclusion, and law is the expression of political sovereignty, rather
than giving rise to a normative sphere from which to articulate normativity and
facticity, the law is itself indistinguishable from pure factuality, and the ultimate form
of the law is brute force. Politics understood as sovereign power is thus not the
opposition of an order of nomos against physis, but the indistinction between physis
and nomos. The normative order of the law hides absolute violence. The State is not
the institution safeguarding and enforcing democratically constituted laws, but is the
enforcement of legal violence.
4. Correlatively, the subject of power is not the citizen, not a bearer of fundamental
rights, however these rights are accounted for (as naturally, politically or historically
grounded, or simply as positivistically given). As that which is captured by the law
enforcing the exception, the subject of power is in fact bare life or biological life,
which Agamben opposes to a fully human, ethical life or "form of life" (Agamben
2000: chap.1). The archaic juridical category of homo sacer, an individual excluded
from the community who can be killed by anyone in all impunity, but who cannot be
killed in the religious-legal forms of sacrifice, crystallizes this capture of life by the
law. Foucaults biopower hypothesis is thus detached from modern times and becomes
the transhistorical essence of Western metaphysics in its political guise.

5. Modernity in its essence is not synonymous with the entrenchment of subjective

rights and popular sovereignty. It is not characterised by the circular, reciprocal
conditioning of subjective rights and democratic procedures of law-making relying on
the sovereignty of the people. Modernity is in fact the time when the biopolitical
essence of sovereignty is finally revealed in its full horror, the time when sovereign
power even produces bare life as its own substance the better to capture it. The
"nomos of modernity" is the camp, a place where right and fact are indistinct, where
life is reduced to its biological substrate. Auschwitz, not the Declarations of
fundamental rights, nor the democratic revolutions, is the paradigmatic event defining
modernity; not the Citizen, nor the Man of fundamental rights, nor the emancipated
worker, but homo sacer, and especially the contemporary manifestation of the
Muselmann, is the real face of modernity.
6. Agambens narrative of rights thus offers a perfect counter-narrative to
reconstructions that give themselves the task of accounting conceptually for the
normativity of contemporary legal and political orders. Particularly convincing is his
insistence that the honour of thinking today continues to lie in a thorough, serious
engagement with the absolute challenge that the horrors of the previous century pose
to any theory defending the rationality and normativity of politics, i.e. in a pursuit of
Hannah Arendts research into the historical and metaphysical "origins of
totalitarianism".
7. The question, though, is whether Agambens counter-theory that results from this
critical inspiration is itself valid. This paper aims to assess some of Agambens key
arguments against normative theories of rights, to show that his own proposal is itself
caught up in major conceptual and political difficulties. This leads to the conclusion which can only be programmatically sketched within the scope of this short paper that there is still a need to attempt to retrieve the force of Agambens critical
arguments, but without abandoning the resource that modern rights, in their normative
dimensions, can provide for an alternative political theory and practice.
Agambens Essentialism
8. Agambens conception of the task of thinking is deeply Heideggerian. It can be
summarized in this way: the thinker isolates ontological essences in which the
common ground of apparently different, or even opposite, empirical and historical
phenomena is revealed. The constantly reoccurring conceptual gesture in Agambens
writings is that of indistinction. Political power is the instigation of an indistinction
between the state of exception and the normal legal order, between fact and law,
nature and norm, animality and humanity, inside and outside, inclusion and exclusion.
It must be noted that, paradoxically, this recurrent movement of indistinction that
effaces conceptual and empirical differences runs counter to the Foucauldian
distinctions and discontinuities.
9. Consistent with this foundationalist essentialism, Agamben does not restrict
indistinction to the conceptual or structural level, but extends it to empirical, historical
phenomena. The archaic State is not substantially different from the modern one.
There is no essential difference between democracy before Auschwitz, the totalitarian
States themselves, and democracy after Auschwitz between liberal democracies and
dictatorships (Agamben 1998:10). In Auschwitz, there is no difference between victim

and executioner (Agamben 1999a: 21). No distinction between the sacred priest, the
criminal banned from the archaic community and the modern citizen; no distinction
between the bodies in Auschwitz and the bodies of victims of car accidents in modern
Europe (1998: 114); no distinction between the Muselmann in the extermination camp
and the immigrant locked up by police in a hotel at Charles de Gaulle Airport (1998:
174), or between the Muselmann and the overcomatose person (1999a: 156); no
distinction between the Nazi extermination camps and the camps established in the
former Yugoslavia.
10. On a general, philosophical level, the essentialist method that leads to general
indistinguishability would be questioned by other traditions of thought. The strongest
critique would probably come from the Hegelian tradition, for which the essence is to
be found nowhere but in its modes of appearance, identity in differences. The
conceptual imperative that ensues is the task of thinking precisely what appears as
different, and not look for a transcendent "thing-in-itself" in which all differences are
swallowed. If indeed there are historiographical differences between democracy and
fascism (1998: 10), then perhaps it should bear more weight in the theory, and not be
blurred into indistinction. From a Hegelian perspective, Agambens conceptuality
looks very much like a Schellingian night where all cows are black. This in itself is
obviously not a ground for rejection, as all theory starts from a theoretical decision
which is itself ungrounded and the matter of pure freedom, as Fichte demonstrated.
Thought, like politics, is all about the decision and its implications.
11. In the case of empirical examples, the erasure of difference between phenomena
seems particularly counter-intuitive in the case of dissimilar modes of internment.
From a practical point of view, it seems counter-productive to claim that there is no
substantial difference between archaic communities and modern communities
provided with the language of rights, between the lawlessness of war times and
democratic discourse. There must be a way of problematising the ideological mantra
of Western freedom, of modernitys moral superiority, that does not simply equate it
with Nazi propaganda (Ogilvie 2001). Habermas and Honneth probably have a point
when they highlight the advances made by modernity in the entrenchment of rights. If
the ethical task is that of testimony, then our testimony should go also to all the
individual lives that were freed from alienation by the establishment of legal barriers
against arbitrariness and exclusion. We should heed Honneths reminder that struggles
for social and political emancipation have often privileged the language of rights over
any other discourse (Fraser, Honneth 2003). To reject the language of human rights
altogether could be a costly gesture in understanding past political struggles in their
relevance for future ones, and a serious strategic, political loss for accompanying
present struggles. We want to criticise the ideology of human rights, but not at the cost
of renouncing the resources that rights provide. Otherwise, critical theory would be in
the odd position of casting aspersions upon the very people it purports to speak for,
and of depriving itself of a major weapon in the struggle against oppression.
The Critique of Human Rights
12. In order to argue against fundamental rights as the normative grounding of
modern politics, Agamben presents the biopolitical thesis: the actual subject of the
law is not the citizen, understood as a person vested with fundamental rights, but the
human being as living creature. The actual subject of power is bare life.

13. I want to consider this rejection of the principle of human rights from the angle of
the emergence of biopolitics at the time of the declarations of human rights. Agamben
accepts the well-established distinction between ancient natural law, natural law under
absolutism, and modern natural law (Strauss 1953). His narrative, however, runs
counter to the usual one:
It is almost as if, starting from a certain point, every decisive political event were
double-sided: the spaces, the liberties, and the rights won by individuals in their
conflicts with central powers always simultaneously prepared a tacit but increasing
inscription of individuals lives with the state order, thus offering a new and more
dreadful foundation for the very sovereign power from which they wanted to liberate
themselves (Agamben 1998: 121).
14. This is a kind of dialectic of Enlightenment: the more individuals liberate
themselves legally from the shackles of authority, the more they subject themselves to
power biopolitically. This dialectic enables Agamben to postulate a continuous line
running from the first formulation of the Habeas Corpus, through the Bill of Rights,
to the 1933 Nuremberg eugenic laws: along this line we find the body of the
individual directly exposed to the state of exception. In the different Declarations of
Human Rights that signal the historical birth of modernity, the subject becomes
citizen that is bearer of sovereignty, solely on account of his birth, his natio, or
nationality. Behind the citizen, man as bare life is hidden. This bare life exposed to
sovereign power is precisely the pure substance that the Nazi regime attempted to
produce, which justifies the perception of continuity between modern democracy and
the totalitarian State.
15. This reading of the French Revolution and of the Declarations of Human Rights
used as preambles to the different constitutions of the Rpublique is problematic. First
of all, in the American Revolution, which in many senses was the model for the
French, it would be difficult to find the figure of homo sacer. The American
declaration of independence, influenced by Lockes theory of natural law, places the
origin of the rights of men in divine laws. Political power does not apply to
individuals considered from the point of view of their birth, their natio or nationality,
but to individuals fully endowed with natural rights, as creatures of God (Kervgan
1995: 660).
16. Agamben is greatly inspired by Hannah Arendt. She is the one that explicitly
makes the "internment camp" a central figure of modern times (Arendt 1966: 276). In
her, he finds a strong counter-objection to the remark above. In both the "American
formula" that relies on the authority of God, and the "French formula" that relies on
philosophical justifications of natural law, the fiction of a universal essence of man is
denounced by the factual helplessness of all the refugees and stateless people created
by the turmoils of the 20th century.
17. Agamben quotes Arendts critical conclusion: the conception of human rights,
based upon the assumed existence of a human being as such, broke down at the very
moment when those who professed to believe in it were for the first time confronted
with people who had indeed lost all other qualities and specific relationships except
that they were still human (Arendt 1966: 299; Agamben 1998: 126). But he fails to

quote the very next line, which makes all the difference: "The world found nothing
sacred in the abstract nakedness of the human being" (Arendt 1966: 299).
18. What Arendt means is that only when they are realised in a political
"commonwealth" do human rights have any meaning. They are an abstraction
otherwise. More important than the right to freedom or the right to justice is "the right
to have rights", that is, to be the member of a political community. Arendt therefore
asserts the opposite of what Agamben wants to say: she believes that the political
solution lies in what he considers to be a fiction, namely the citizen. Her point is that
when man and citizen come apart, we realise that man never really existed as a subject
of rights. This is the exact opposite of Agamben for whom the citizen is just a
travesty.
19. Despite this opposition, Agamben borrows Arendts critical interpretation of the
French revolution and modernity in general, even though this interpretation itself is
not beyond doubt. The French declaration makes it clear that human rights lose all
significance if they are not reinscribed within a political community that transforms
them into constitutional principles, and the American constitution also defines a clear
link between individual freedom and a political order whose goal is freedoms
protection. Yet, Agamben reads the first article of the Declaration of 1789, "all men
are born and remain free and equal in rights" as proof that modern sovereign power
applies to bare life, here in the form of birth (Agamben 1995: 128). But this seems
disingenuous. Birth here refers not to nationality, but simply to the fundamental fact
of the equality of all human beings in right. The term effectuates the radical break
with ancient and absolutist natural law, a break that is synonymous with legal
modernity. In ancient natural law, rights were associated with the social position or the
notion of a perfect cosmic order underpinned by God.
20. This emphasis on the rupture that the declarations consummate leads to the
question of historical continuity. The Habeas Corpus is not necessarily a precursor of
modern declarations as it uses a non-egalitarian definition of freedom, reserved for the
elite. It lacks the fundamental notion that is the mark of modernity, the universal
equality of all.
21. Agamben does not emphasise equality, but it could be argued that, above all
others, even above the notion of right, it is this category that gives modernity its
actual normative content. Modern man is therefore not first and foremost the national,
but a universal being liberated from the particularisms of traditional society. This
amounts only to an empty universalism if no political project realises freedom and
equality, but this is precisely a mistake that the American and French revolutions, for
all their ambiguities, did not commit. Agamben refuses to consider basic legal
equality as the true content of declarations of human rights and instead focuses on the
national aspect. In this he is faithful to Schmitt who rejects the republican conception
of popular sovereignty.
Schmitt, Benjamin and the Violence of the Law
22. One of the most impressive aspects in Agambens oeuvre is the extent to which it
has developed to such a high level of conceptual sophistication, and how it delves to
such a degree into philological, historical and conceptual detail, whilst remaining ever

faithful to the letter and spirit of Walter Benjamins writings. This is true of his
meditations on language, literature, and the "end of experience". This especially true,
however, of Agambens political writings. They can be read as the results of a
systematic research undertaken with the goal of developing and giving substance to
the insights put forward by Benjamin in his long forgotten and now famous 1921
article, "Critique of Violence", as well as the 1940 "Theses on the Philosophy of
History". It is important to approach Agambens theses on political sovereignty from
this perspective because their radical nature risks blocking access to their meaning
and critical potential.
23. The second of the three volumes to be dedicated to the figure of homo sacer
(Homo Sacer II, 1) studies afresh many of the key theses, concepts and references that
were present in the first instalment (Homo Sacer: sovereign power and bare life). The
new genealogical and ontological analyses in this second volume make both the
negative, critical, and the positive, programmatic, aspects of Agambens politics very
clear.
24. By focusing on the paradox of constituting power, the extra-juridical nature of the
decision that founds the juridical field, the paradox of political sovereignty, which, in
its normality and normativity, logically relies on the power to decree the state of
exception, Carl Schmitt has isolated the violent, anomic core of all juridical and
political systems. In this sense, Schmitt tells the truth about the political, the truth
about Western politics. For example, empirically, the world in which we live is a
Schmittian world, where the state of exception becomes the rule of even supposedly
"democratic" governments.
25. But, to use Heideggers turn of phrase, that is only the guiding question, not the
founding one. More importantly, in their very accuracy, the Schmittian theses point to
all that is wrong in Western politics, and thus, negatively, to another form of politics.
With Schmitt, Agamben believes one can cut to the very essence of Western politics,
beyond illusory rationalistic and normative frameworks. Only after having reached
that point, once the essence of all politics has been identified, can one hope to find the
correct alternative. Any solution that would not confront the Schmittian challenge
would remain caught up in unending conundrums. The embracing of Schmitt is thus
only a negative, propaedeutic step towards a positive political theory.
26. So what is wrong with Schmitt, according to Agamben, and what political field
opens up once we have crossed this ultimate threshold? In the central chapter of
Homo Sacer II, 1, Agamben reconstructs the different stages of Schmitts theory of
sovereign exception as a series of responses to Benjamins fundamental challenge, the
idea expressed in the 1921 "Critique of violence", and reiterated in the 1940 eighth
thesis on history, of a "pure" revolutionary "violence" beyond all forms of law, which
therefore would not be violent, of a "real state of exception", the revolutionary one,
that would replace the absolute violence of the state of exception "in which we live"
(Benjamin 1991: 291[292]).
27. For Agamben, Schmitts theory of sovereignty is the attempt to conjure up the
threat of (Benjaminian) revolution, by tying up the anomy at the core of human action
to the juridical order via the theory of exception. This gesture of tying up anomic
violence to a normative order is exactly isonomic to the metaphysical gesture that

attempts to capture Being in the net of logos. This is why Schmitt, as the one who
identified the pure elements of all legal orders, the anomic core of normal legality, but
continued to tie the two together, represents the true acme, both conceptually and for
what he stood for historically, of Western politics. And this is why Benjamin, who had
learnt from Schmitt about the exceptionality forming the core of legal normality and
normative legality, but perverted the Schmittian lesson by cutting the link between
exception and law, shows the right way out of the political impasse of the West. The
effective theory of revolution is the messianic utopianism of Benjamin.
28. All this explains why Agamben chooses to focus on the decisionistic tradition
(Hobbes, Heidegger, Schmitt). With it, he wants to isolate the pure essences of all
juridical orders and thus highlight the essential violence structuring traditional
politics. Since the law essentially appears as a production and capture of bare life, the
political order that enunciates and maintains the law is essentially violent, always
threatening the bare life it has produced with total annihilation. Auschwitz is the real
outcome of all normative orders.
29. The problem with this strategic use of the decisionistic tradition is that it does not
do justice to the complex relationship that these authors establish between violence
and normativity, that is, in the end the very normative nature of their theories. In brief,
they are not saying that all law is violent, in essence or in its core, rather that law is
dependent upon a form of violence for its foundation. Violence can found the law,
without the law itself being violent. In Hobbes, the social contract, despite the
absolute nature of the sovereign it creates, also enables individual rights to flourish on
the basis of the inalienable right to life (see Barret-Kriegel 2003: 86).
30. In Schmitt, the decision over the exception is indeed "more interesting than the
regular case", but only because it makes the regular case possible. The "normal
situation" matters more than the power to create it since it is its end (Schmitt 1985:
13). What Schmitt has in mind is not the indistinction between fact and law, or their
intimate cohesion, to wit, their secrete indistinguishability, but the origin of the law, in
the name of the law. This explains why the primacy given by Schmitt to the decision
is accompanied by the recognition of popular sovereignty, since the decision is only
the expression of an organic community. Decisionism for Schmitt is only a way of
asserting the political value of the community as homogeneous whole, against liberal
parliamentarianism. Also, the evolution of Schmitts thought is marked by the retreat
of the decisionistic element, in favour of a strong form of institutionalism. This is
because, if indeed the juridical order is totally dependent on the sovereign decision,
then the latter can revoke it at any moment. Decisionism, as a theory about the origin
of the law, leads to its own contradiction unless it is reintegrated in a theory of
institutions (Kervgan 1992).
31. In other words, Agamben sees these authors as establishing a circularity of law
and violence, when they want to emphasise the extra-juridical origin of the law, for
the laws sake. Equally, Savignys polemic against rationalism in legal theory, against
Thibaut and his philosophical ally Hegel, does not amount to a recognition of the
capture of life by the law, but aims at grounding the legal order in the very life of a
people (Agamben 1998: 27). For Agamben, it seems, the origin and the essence of the
law are synonymous, whereas the authors he relies on thought rather that the two were
fundamentally different.

32. Agamben obviously knows all this. He argues that it is precisely this inability of
the decisionists to hold on to their key insight, the anomic core of norms, which gives
them the sad distinction of accurately describing an evil order. But this reading does
not meet the objection to his problematic use of that tradition.
33. If the authors of the decisionistic (Hobbes-Schmitt) and ethnonationalistic
(Savigny-Schmitt) traditions do not want to emphasize the extra-juridical core of the
law, but rather polemically establish the non-rationalistic and non-positivistic
grounding of an otherwise fully acknowledged normative order, then it seems as
though Agamben makes them prove too much. If Hobbes, Savigny and Schmitt are
intent, as much as their theoretical opponents, on shoring up the normative order, then
they cannot be used as proponents of an anti-normative essence of normativity.
Conversely, a more serious engagement with the opposing traditions (mainly, natural
law, positivism and rationalism) is required, since it is not the case that the
nationalistic-decisionistic one would be situated at a deeper level of analysis than its
opponents.
34. This is illustrated in the passage in Homo Sacer II, 1 where Agamben analyses the
justification-application dichotomy. The passages on Schmitts theory of the state of
exception show explicitly the hermeneutic slide in the reading of this key author.
Indeed, "the state of exception separates the norm from its application in order to
make the latter possible". But Schmitts point is not what Agamben makes of it in the
next paragraph, namely that, as a consequence, "it (the state of exception) introduces
into the law a zone of anomy", in which "the two elements of the law" (the norm and
its application) "show their intimate cohesion" (Agamben 2003: 64). Instead, for
Schmitt, the distinction between justification and application simply shows the
political grounding of the legal moment.
35. But this grounding in the political is just the result of a theoretical decision, and
the alternatives should be confronted more explicitly. This lack of a substantial
engagement with other legal alternatives becomes obvious a few pages later, when
Agamben analyses once more the specific problem of the application of the law.
When he writes that "in the case of the juridical norm, the reference to the concrete
case supposes a "process" that always implies a plurality of subjects, and that
culminates in the last instance in the enunciation of a sentence, that is to say, a
statement whose operative reference to reality is guaranteed by institutional powers"
(Agamben 2003: 69), he simply formulates a classical distinction that can receive an
entirely different treatment with no less plausibility. A recent philosophical solution to
the gap between justification and application has been famously given by Habermas
(1990 and 1996). Chapters 5 and 6 of Between facts and norms in particular provide
an excellent overview of plausible alternatives to Schmitts decisionistic theory of
adjudication, from Kelsen to Critical Legal Studies.
36. But then Agamben cannot simply use the fact that "the application of a norm is not
contained in it" as leading directly to the theory of the state of exception, since from
the very same premise another form of political grounding of the legal could be
advanced, one, for instance, that focuses on intersubjectivity and the
institutionalisation of dissensus. The "violence" that realizes the statement is not
necessarily "without logos". For Schmitt, it draws its authority from the political, that

is, the logos of the polis as ethnos; for another tradition, it would do so from the logos
of intersubjectively constituted and essentially contested institutions.
37. Here, as in many other aspects of his thought, Agamben draws on Benjamin for
whom there is "something rotten in law" (Benjamin 1991b: 188 [286]), a fateful
violence, "the destruction of which becomes obligatory" (199 [297]). There is
undeniably a continuity in Benjamin, from the "Critique of Violence" to the theses on
the philosophy of history, that has to do with his fundamental vision of history as a
series of catastrophes, a series of orders recurrently establishing themselves as forms
of fate that unleash their violence, rephrased in the language of the law, over the
oppressed. But the other continuity in Benjamins writings is underplayed by
Agamben. For Benjamin and his readers of 1921, the divine violence that is "lawdestroying", and therefore - as negation of the violent negation of law - no longer
violent, is obviously the violence of the proletarian revolution, and there is no need, in
1921, to ask about its "logos", the normative source of its justification. This source is
the "total condition that is man" (Benjamin 1991b: 201 [299]), the "wholly
transformed work" (1991b: 294 [292]), in other words, in a Marx-inspired vision of
global revolution, however vague or heretic the reception of Marx. Again, in 1940, the
theses on history use historical materialism as their obvious background, though
Agamben acknowledges this only in passing in Homo Sacer II (108), and appropriates
Benjamin without reference to the background securing his revolutionary messianism
in Homo Sacer 1. Agamben acknowledges this only in passing in Homo Sacer II, 1
(2003: 108). Homo sacer I strikingly appropriated Benjamin without reference to the
background securing his revolutionary messianism. This means, however, that the
new law beyond the law that no longer has the form of law is a lot more substantive
than simply the "study" of, or "play with", the old law (Agamben 2003: 108-9). It is
the immanent law of the liberated community, whose book had already been written
in extenso by another great German Jew. In other words, Benjamin indeed
demonstrates the violent anomic core of law, but only to point to a new, normative
law, the new law of a community that has defeated fate. With this reference to Marx
as the immanent normativity of Benjamins messianism, the notion of a politics of
"pure means" becomes far more intuitively evident.
Ontology of Politics, Politics of Ontology
38. With the "Critique of Violence", Benjamin pursued the goal of a "politics of pure
means" which would undercut the violence implicit in all articulation of morality and
justice in (justified) means for (just) ends. "The violence of an action can be assessed
no more from its effects than from its ends, but only from the law of its means"
(Benjamin 1991b: 195 [292]). Since the law of the legal orders means is the
establishment of a violent fate that captures bare life and produces guilt and
punishment as forms of that capture (Benjamin 1991a: 175 [308]), the destruction of
all forms of legality is "obligatory" before the advent of a just society.
39. Agamben takes up Benjamins indication and engages in systematic research into
the ontology of means and ends in order to show its absolute violent isonomy with the
logic of sovereignty. To do this, Agamben borrows from Schmitt the definition of
sovereign power as the decisionary power over the state of exception, which he
interprets as the paradoxical power to exclude and thereby include, or alternatively to
include by excluding.

40. This formal model, he then shows, following Heidegger, exactly corresponds in
structural terms to the classical Aristotelian articulation of potentiality to actuality.
Aristotle identifies two senses of potentiality. Potentiality is potentiality to be, and in
that first sense, it is directly related to actuality: potentiality as potentiality of
actuality. Potentiality is therefore more truly itself in a second sense, as potentiality
not to be. In this second sense, however, it also remains related to actuality. Indeed the
potential not to be, if reflectively turned onto itself, is again actuality. Not to be the
power not to be is both being true to the nature of not being, and also to be in the most
actual form of actuality. Impotentiality taken seriously is both pure potentiality and as
the impotentiality of the potential not-to-be, pure actuality. In other words, "pure
potentiality and pure actuality are indistinguishable" (Agamben 1998: 47).
41. This conceptual indistinction, whereby the potential is also the most actual form
of actuality, is perfectly isomorphic with the sovereign structure if sovereignty is also
defined as a power to suspend itself (potential not-to be) which is at the same time the
source of itself and, as normative power, the source of legal reality (actuality).
42. The conclusion is clear: if we want to move beyond biopolitics, beyond the violent
politics of sovereignty, we have to develop an alternative ontology where the potential
is not always already recaptured by its own potentiality and thus forced to relate to its
opposite, actuality. We have to think potentiality as pure or absolute potentiality,
"beyond every figure of relation" (1998: 47).
43. Agamben thus connects Benjamins "politics of pure means" with the alternative
ontology articulated by Heidegger on the basis of his reading of Aristotles
metaphysics. In his 1931 lectures on the Metaphysics (Heidegger, 1981: 114), in his
Nietzsche lectures (1980: 64-65), and in the Letter on humanism (1977: 220),
Heidegger had tied the imperative of a "recovery of the question of Being" to a radical
rethinking of the categories of modality in which Being is freed from the productivist
paradigm of actualitas. Only through a questioning of the modal logic operating
within the onto-theological tradition could a free "ethos" be prepared as a genuine
dwelling. Agambens thought owes just as much to this fundamental inspiration as he
does to Benjamin. How much Heideggers ontology of potentiality has exerted a
fundamental influence on him is especially clear in the lectures at the Collge
international de Philosophie published under the title Lombre de lamour (1988: 4446).
44. The description of the radical politics that emerges from the ontology of pure
potentiality can be found in The Coming Community, and it is here that the full
consequences of Agambens problematic interpretation and reappropriation of
Benjamin, Heidegger, Schmitt and Arendt become apparent.
45. In the notes that Benjamin was writing in preparation for his Theses on the
philosophy of history, one reads: "The messianic world is the world of overall and
integral actuality" (Benjamin 1991e: 1235). The last expression is a self-reference to
the 1929 essay on surrealism (1991d: 309, [1929]). Against Benjamins explicit
equation of the "real state of exception" (the state of liberated humanity), with
actuality, Agambens coming community is a community of subjects that exist only as
negative potentialities (actualities that are the possibility of not-being, actualisations
of potentiality), the "whatever singularities". Because he has severed the concept of

the community from all normative ties, and has rejected all conceptual and normative
distinctions (between state of nature and civil state, law and violence, nomos and
physis, normal state and exception, etc.), this community-to-come can only be ever
described negatively, as beyond all forms of community, and accessed only in the
flight from all present and all immanence. It is difficult to avoid thinking that the
assumed messianism of this radical politics is only a form of negative theology.
Difficult not to think, also, that politics constructed as the "gigantomachy" (Agamben
2003: chapter 4) of an onto-theology of power does not lead to the evanescence of
politics.
Rights, Politics, Contingency
46. How can we heed Agambens warning about the necessity to continue to question
the normativity of modernity after Auschwitz without dissolving politics into ontotheology? This seems to be one of the most pressing demands for political thought
today.
47. If, with Rancire, we define politics not through the institution of sovereignty, but
as a continual struggle for the recognition of basic equality, and thereby strongly
distinguish politics from the police order viewed as the functional management of
communities (Rancire 1999), then it is possible to acknowledge the normative break
introduced by the democratic revolutions of the modern age without falling into a
one-sided view of modernity as a neat process of rationalisation. What should be
stressed about modernity is not primarily the list of substantive inalienable and
imprescriptible human rights, but the equal entitlement of all to claim any rights at all.
This definition of politics must be accompanied by the parallel acknowledgment that
the times that saw the recognition of the fundamental equality of all also produced the
total negation of this principle. But this parallel claim does not necessarily render the
first invalid. Rather it points to a tension inherent in modern communities, between
the political demands of equality and the systemic tendencies that structurally produce
stigmatisation and exclusion.
48. One can acknowledge the descriptive appeal of the biopower hypothesis without
renouncing the antagonistic definition of politics. As Rancire remarks, Foucaults
late hypothesis is more about power than it is about politics (Rancire 2002). This is
quite clear in the 1976 lectures (Society must be defended) where the term that is
mostly used is that of "biopower". As Rancire suggests, when the "biopower"
hypothesis is transformed into a "biopolitical" thesis, the very possibility of politics
becomes problematic. There is a way of articulating modern disciplinary power and
the imperative of politics that is not disjunctive. The power that subjects and excludes
socially can also empower politically simply because the exclusion is already a form
of address which unwittingly provides implicit recognition. Power includes by
excluding, but in a way that might be different from a ban. This insight is precisely
the one that Foucault was developing in his last writings, in his definition of freedom
as "agonism" (Foucault 1983: 208-228): "Power is exercised only over free subjects,
and only insofar as they are free" (221). The hierarchical, exclusionary essence of
social structures demands as a condition of its possibility an equivalent implicit
recognition of all, even in the mode of exclusion. It is on the basis of this recognition
that politics can sometimes arise as the vindication of equality and the challenge to
exclusion.

49. This proposal rests on a logic that challenges Agambens reduction of the
overcoming of the classical conceptualisation of potentiality and actuality to the
single Heideggerian alternative. Instead of collapsing or dualistically separating
potentiality and actuality, one would find in Hegels modal logic a way to articulate
their negative, or reflexive, unity, in the notion of contingency. Contingency is
precisely the potential as existing, a potential that exists yet does not exclude the
possibility of its opposite (Hegel 1969: 541-554). Hegel can lead the way towards an
ontology of contingency that recognises the place of contingency at the core of
necessity, instead of opposing them. The fact that the impossible became real
vindicates Hegels claim that the impossible should not be opposed to the actual.
Instead, the possible and the impossible are only reflected images of each other and,
as actual, are both simply the contingent. Auschwitz should not be called absolute
necessity (Agamben 1999a: 148), but absolute contingency. The absolute historical
necessity of Auschwitz is not "the radical negation" of contingency, which, if true,
would indeed necessitate a flight out of history to conjure up its threat. Its absolute
necessity in fact harbours an indelible core of contingency, the locus where political
intervention could have changed things, where politics can happen. Zygmunt
Baumans theory of modernity and his theory about the place and relevance of the
Holocaust in modernity have given sociological and contemporary relevance to this
alternative historical-political logic of contingency (Bauman 1989).
50. In the social and historical fields, politics is only the name of the contingency that
strikes at the heart of systemic necessity. An ontology of contingency provides the
model with which to think together both the possibility, and the possibility of the
repetition of, catastrophe, as the one heritage of modernity, and the contingency of
catastrophe as logically entailing the possibility of its opposite. Modernity is
ambiguous because it provides the normative resources to combat the apparent
necessity of possible systemic catastrophes. Politics is the name of the struggle
drawing on those resources.
51. This ontology enables us also to rethink the relationship of modern subjects to
rights. Modern subjects are able to consider themselves autonomous subjects because
legal recognition signals to them that they are recognised as full members of the
community, endowed with the full capacity to judge. This account of rights in
modernity is precious because it provides an adequate framework to understand real
political struggles, as fights for rights. We can see now how this account needs to be
complemented by the notion of contingency that undermines the apparent necessity of
the progress of modernity. Modern subjects know that their rights are granted only
contingently, that the possibility of the impossible is always actual. This is why rights
should not be taken for granted. But this does not imply that they should be rejected
as illusion, on the grounds that they were disclosed as contingent in the horrors of the
20th century. Instead, their contingency should be the reason for constant political
vigilance.
52. By questioning the rejection of modern rights, one is undoubtedly unfaithful to the
letter of Benjamin. Yet, if one accepts that one of the great weaknesses of the Marxist
philosophy of revolution was its inability to constructively engage with the question
of rights and the State, then it might be the case that the politics that define
themselves as the articulation of demands born in the struggles against injustice are

better able to bear witness to the "tradition of the oppressed" than their messianic
counterparts.

Jean-Philippe Deranty was educated in France (Ecole Normale Suprieure, Paris

IV-Sorbonne). He teaches French and German Philosophy at Macquarie
University, Sydney. His latest publications include a number of articles on
contemporary political theory. He is currently writing a book on Axel Honneth
and the ethics of recognition. Email: jderanty@scmp.mq.edu.au
Authors Note
I would like to thank the organizers of the "Unassumable Responsibility" conference,
Catherine Mills and Fiona Jenkins, for their thoughtful comments which have helped
me better understand the work of Giorgio Agamben.
Bibliography
Agamben, G. (1988) Lombre de lamour. Paris: Rivages poche.
________ (1993) The Coming Community, trans. M. Hardt, Minneapolis: University
of Minnesota Press.
________ (1998) Homo Sacer: Sovereign power and bare life. trans. D. HellerRoazen. Stanford: Stanford University Press.
________ (1999a) Remnants of Auschwitz: The witness and the archive. trans. D.
Heller-Roazen, New York: Zone Books.
________ (1999b) "Une biopolitique mineure", interview in Vacarme, Dec.1999.
________ (2000) Means without End: Notes on politics, trans. V. Binetti and C.
Casarino, Minneapolis: University of Minnesota Press.
________ (2003) Etat dexception. Homo sacer, II, 1, trans. J. Gayraud, Paris: Seuil.
Arendt, H. (1966) The Origins of Totalitarianism, San Diego: Harvest Book.
Barret-Kriegel, B. (1979) LEtat et les esclaves. Paris: Calmann-Levy.
Bauman, Z. (1989) Modernity and the Holocaust. Cambridge: Polity Press.
Benjamin, W. (1978) Reflections, trans. E. Jephcott, New York: Schocken Books. The
number in square brackets, following the reference to the Gesammelte Schriften,
refers to this English translation.
________ (1991) Gesammelte Schriften, ed. R. Tiedemann and H. Schweppenhuser.
Frankfurt am Main: Suhrkamp. Quoted as: GS, followed by volume numbers in
Roman and Arabic numbers.

________ (1991a) "Schicksal und Charakter" ("Fate and character"): GS II, 1, 171179.
________ (1991b) "Zur Kritik der Gewalt" ("The critique of violence"): GS II, 1, 179203.
________ (1991c) "Uber den Begriff der Geschichte" ("On the concept of history"):
GS I, 2, 691-706.
________ (1991d) "Surrealismus. Die letzte Momentaufnahme der europischen
Intelligenz" ("Surrealism. The last instant photograph of European intelligence"): GS
II, 1, 295-310.
________ (1991e) Gesammelte Schriften, volume I, 3.
Foucault, M. (1983) "The subject and power", in H. Dreyfus and P. Rabinow, Michel
Foucault: Beyond structuralism and hermeneutics. Chicago: University of Chicago
Press.
________ (2003) Society Must be Defended, trans. D. Macey, New York: Picador.
Habermas, J. (1990) Moral Consciousness and Communicative Action. trans.C.
Lenhardt and S. Nicholsen, Cambridge, UK: Polity Press.
________ (1996) Between Facts and Norms, trans. W. Rehg, Cambridge, UK: Polity
Press.
________ (1998) The Inclusion of the Other: Studies in political theory. Cambridge,
Mass.: MIT Press.
Hegel, G.W.F. (1969) Hegels Science of Logic. trans. A.V. Miller, Atlantic Highlands,
NJ: Humanities Press International.
Heidegger, M. (1977) 'Letter on humanism' in Basic Writings. ed. D. Farrell Krell.
San Francisco: Harper.
________ (1980) Nietzsche. vol. 1, trans. D. Farrell Krell, London: Routledge.
________ (1981) Aristoteles. Metaphysik 1-3. Von Wesen und Wirklichkeit der
Kraft. Gesamtausgabe. Frankfurt am Main: Klostermann, vol.33.
Fraser, N. and Honneth, A. (2003) Redistribution or Recognition? A PoliticalPhilosophical Exchange. trans. J. Golb, J. Ingram and C. Wilke, London: Verso.
Kervgan, J-F. (1992) Hegel, Carl Schmitt: Le politique entre spculation et
positivit. Paris: PUF.
________ (1995) "Les droits de lhomme", in Notions de Philosophie II. Paris:
Gallimard.

Mills, C. (2003) "An Ethics of Bare Life: Agamben on witnessing", Borderlands ejournal, vol.2, no1.
Nancy, J-L. (1993) The Birth to Presence. trans. B. Holmes, Stanford: Stanford
University Press.
Ogilvie, B. (2001) "Comparer lincomparable", Multitudes 7, Dec, 2001.
Rancire, J. (1999) Disagreement. Politics and Philosophy. trans. J. Rose,
Minneapolis: University of Minnesota Press.
________ (2002) "Peuple ou multitudes?" Multitudes 9, May-June 2002.
Schmitt, C. (1985) Political Theology: Four chapters on the concept of sovereignty.
trans.G. Schwab, Cambridge/Mass.: MIT Press.
Strauss, L. (1953) Natural Right and History. Chicago: The University of Chicago
Press.