A Zone of Indistinction A Critique of Giorgio Agamben

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

Until recently, the term “biopolitics” as developed by Michel Foucault was unknown beyond a group of experts and scholars.
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As Foucault understood it, the term designates what “brought life and its mechanisms into the realm of explicit calculations and made knowledge-power an agent of transformation of human life” (Foucault 1979: 143). He distinguished historically and analytically be

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be located at the very margin of politics, turns out to be the solid basis of a political body that decides not simply over the life and death of human beings, but who will be recognised as a human being at all. From this perspective, the production of homines sacri is a constitutive but unrecognised part of politics. Not a subject that remains outside of law, homo sacer is constituted by political-legal means “to personalize what it excluded from the protection of law” (Vismann 2001, p. 15). Therefore this rightless existence should not be conceived of as a pre-societal state. Quite the contrary, Agamben makes clear that the natural state to which homo sacer seems to be thrown back is not a residuum of the historical past but the result of social relations. Bare life does not refer to a natural, original or ahistorical nakedness but presents an artificial product, a concealing bareness that hides social markings and symbolisations (Agamben 1999b; Lüdemann 2001).
To be clear: Agamben does not use the figure of homo sacer for a historical reconstruction of legal procedures and institutions.
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Rather, he applies it as a theoretical concept that is supposed to inform political analysis. As a consequence, Agamben is less interested in the question whether in antiquity human beings were indeed confronted with this kind of ban; he is more concerned to display the political mechanism of rule and exception, bare life and political existence. He analyses the paradoxical structure of sovereignty that operates by a suspension of law: the decision about the exception of the rule.
Here we have to note the first difference from the concept of biopolitics as Foucault uses it. According to Agamben politics is always already biopolitics, since the political is constituted by the state of exception, in which bare life is produced. For Foucault, on the contrary, biopolitics is something much more recent: it marks a historical shift in the economy of power that dates back to the 17
th
and 18
th
century. While Foucault analytically distinguishes between biopolitics and sovereignty, Agamben insists on their logical connection: he takes biopolitics to be the centre of sovereign power. In this light, modernity is not marked by a break with the historical tradition, but it only generalises and radicalises what was always present in the beginning of politics. Nevertheless, modernity is different from pre-modern times insofar as bare life, which was once located at the margins of political life, is now occupying more and more space inside the political domain. As for the present, Agamben diagnoses a collapse of the rule into the exception and of politics into life.
Agamben’s reconstruction of the intimate relationship between sovereign rule and biopolitical exception leads to a disturbing result. Agamben’s thesis that the camp is the “hidden matrix of politics” (Agamben 2001a: 48) claims an inner link between the emergence of human rights

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For a comprehensive critique of Agamben’s interpretation of ancient legal texts see Fitzpatrick 2001.

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that it remains inside the horizon of law, Agamben’s analysis is more indebted to Carl Schmitt (1932) than to Michel Foucault. For Schmitt, the sovereign is visible in the decision about the state of exception, in the suspension of the law, while for Foucault the normal state that operates beneath, alongside, or against juridical mechanisms is more important. While the former concentrates on how the norm is suspended, the latter focuses on the production of normality. Schmitt takes as the point of departure the very sovereignty, that signifies, for Foucault, the endpoint and result of complex social processes, which concentrate the forces inside the social body in such a way as to produce the impression that there is an autonomous centre, or a sovereign source of power.
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4. Political economy of life

Agamben sees the novelty of the modern biopolitics in the fact that “the biological given is as such immediately political, and the political is as such immediately the biological given” (1998: 148; emphasis in orig.). In the political program of the Nazis, the preoccupation with life is at the same time a struggle against the enemy. While there are probably convincing reasons to state that in the present we are one step further on the way towards a politicisation of nature, there are at least two major problems that this conception of biopolitics fails to address. Firstly, Agamben does not take into account that the site of sovereignty has been displaced. While in the eugenic programs in the first half of the 20
th
century biopolitical interventions were mainly executed by the state that controlled the health of the population or the hygiene of the race, biopolitics today is becoming more and more a responsibility of sovereign subjects. As autonomous patients, active consumers or responsible parents they demand medical or biotechnological options. Today, it is less the state that regulates by direct interventions and restrictions, since the capacity and competence of decision-making is increasingly ascribed to the individual subject to make “informed choices” beyond political authoritarianism and medical paternalism. Decisions on life and death are less the explicit result of legal provisions and political regulations but the outcome of an “invisible hand” that represents the options and practices of sovereign individuals (Lemke 2002b; Koch 2002). Agamben’s analysis is too state-centred, or rather, it relies on a limited conception of the state which does not take into account important political transformations since the Nazi era. He

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For a systematic comparison between Foucault’s and Agamben’s conception of biopower: Genel 2003; see also Nikolopoulou 2000.

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5. Conclusion: biopower and thanotopolitics

Our reading of Agamben leads to a surprising result. Following a binary code and a logic of subsumtion that does not allow for differentiations, his argumentation remains committed to exactly the juridical perspective that he so vividly criticizes. He reduces the “ambiguous terrain” (1998: 143) of biopolitics by operating with a notion of politics that is at once too broad in its explanatory scope and too narrow in empirical complexity. On the one hand Agamben conceptualises the political as a sovereign instance that does not allow for an outside that would be more than an “inner outside” and an “exception”. On the other hand his presentation of sovereignty is completely limited to the decision on the state of exeption and the killing of bare life.
As a consequence, Agamben presents a distorted picture. The main danger today may not be that the body or its organs are targets of a distinctive state politics (1998: 164-5), but – quite on the contrary – we are witnessing an important transformation of the state under the sign of deregulation, privatisation and liberalisation. It is more and more the scientific consultants, economic interest groups, and civil societal mediators that define the beginning, the end, and the value of life, in consensus conferences, expert commissions, and ethical counsels. This “withdrawal of the state” could itself be analysed as a political strategy, though one that does not necessarily refuse individuals legal rights. In a more moderate account of exceptionality the suspension of legal rights might remain important in determining who is allowed to become part of a community, who is eligible to legal rights at all. The political strategy, however, that shifts legal and regulatory competencies from the public and legal domain to the private sphere will probably pose a much greater threat in the future. This tendency is already visible; for example, it is possible for private companies to own and exploit human body substances (see Andrews/Nelkin 2001). Moreover, this tendency can already be traced in examples that Agamben mentions, namely the admissibility of euthanasia and transplantation medicine. Here we can expect that a patient’s legal will and contract relations will take the place of explicit state prohibitions and regulation. We note that in some countries there is already a public discussion to provide financial compensations for individuals who donate organs, and there is a growing consensus in the legal community to accept the will of the patient not to prolong life under certain conditions.
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See Norris 2000: 52-3: „Though Agamben does not discuss it, one of the best examples of this collapse of the rule into the exception and of politics into life may be the corporate investigation and purchase of the human genome. The day is at hand when the decision on the human being will become the rule. The definition of the human being, like that of death, will become too fluid to serve as a guide for the judgement on its

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By the analytical focus on a formal and repressive conception of the state and the theoretical fixation on the sovereign border between life and death, Agamben fails to see the limits of his own argumentation. Not every single form of exclusion needs to be grounded in legal regulations, or necessitate a suspension of law. Sovereignty does not only reside in political instances and state agencies, it also dwells in “life politics” (Giddens 1991: 209-31) of sovereign subjects who are expected to act in a autonomous ways as individuals. We are not only subjected to political mechanisms that regulate and restrict our physical life; we are also inscribed in what Foucault called “arts of government” that direct us how to reflect ourselves as moral persons and parts of collective subjectivities (see Foucault 2004a). In fact, Foucault regarded biopolitics as an essential part of the liberal art of government (see Foucault 2004b, pp. 3-28).
Yet, although the social dynamics of the relations between bare life and political existence, between technologies of the self and political rationalities, remain theoretically underdeveloped in Agamben’s work, his theory recognises that it is not sufficient to simply extend legal rights to those excluded. What is needed, however, is what Foucault called a “new right” (1997: 35) that suspends the difference between human being and citizen and overcomes a legal concept that permanently re-inscribes the separation between natural existence and political life.

modifications, and lawyers, scientists, and political theorists will simply not be able to chart the expansion of our present boundaries into the dark seas that confront us.”

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Literature

Agamben, Giorgio 1999a: Remnants of Auschwitz: The Witness and the Archive, New York: Zone.
Agamben, Giorgio 1999b: „Agamben, le chercheur d'homme“ (interview with Jean-Baptiste Margongiu). In: Libération 1st april 1999.
Agamben, Giorgio 2001a: Mittel ohne Zweck. Noten zur Politik. Freiburg/Berlin: Diaphanes.
Agamben, Giorgio 2001b: „Das unheilige Leben. Ein Gespräch mit dem italienischen Philosophen Giorgio Agamben“. In: Literaturen, No. 1, pp. 16-22.
Agamben, Giorgio. 2005 State of Exception, Chicago: University of Chicago Press.
Andrews, Lori/Nelkin, Dorothy 2001: Body Bazaar. The Market for Human Tissue in the Biotechnological Age. New York: Crown Publishers.
Bröckling, Ulrich 2003: „Menschenökonomie, Humankapital. Zur politischen Ökonomie des ‚nackten Lebens’“ , in: Mittelweg 36, 12. Jg., No. 1, pp. 3-22.
Castel, Robert. 2000: „Die Fallstricke des Exklusionsbegriffs“, in: Mittelweg 36, No. 3, pp. 11-24.
Deuber-Mankowsky, Astrid. 2002: „Homo Sacer, das bloße Leben und das Lager. Anmerkungen zu einem erneuten Versuch einer Kritik der Gewalt“. In: Die Philosophin, No. 25, pp. 95-114.
Fitzpatrick, Peter. 2001. „These Mad Abandon'd Times“. In: Economy & Society, Vol. 30, No. 2, pp. 255-70.
Foucault, Michel 1977: Discipline and Punish: the Birth of the Prison, London: Allen Lane.
Foucault, Michel 1979, The History of Sexuality, vol. 1. An Introduction, London: Allen Lane.
Foucault, Michel 1991: Governmentality, in: Graham Burchell, Colin Gordon, & Peter Miller (eds.), The Foucault Effect: Studies in Governmentality, Hemel Hempstead: Harvester Wheatsheaf, pp. 87-104.
Foucault, Michel 1997: ‘Il faut défendre la société’. Cours au Collège de France 1976, Paris: Gallimard/Seuil.
Foucault, Michel 2000: “The birth of Social Medicine”, in: Michel Foucault, Essential Works III: Power, New York: The New Press, pp. 134-156.
Foucault, Michel 2004a: Sécurité, Territoire, Population. Cours au Collège de France 1977-1978. Paris: Gallimard/Seuil.
Foucault, Michel. 2004b: Naissance de la Biopolitique. Cours au Collège de France 1978-1979. Paris: Gallimard/Seuil.
Genel, Katia 2003: La question du bio-pouvoir chez Foucault et Agamben. In: http://www.univ-lille3.fr/set/sem/Genel.html (access date : 6th mai 2004)
Gerhardt, Volker 2002a: „Was Biopolitik ist und was gegen sie spricht“. In: Zeitschrift für Biopolitik, Vol. 1., No. 1, pp. 43-47.
Giddens, Anthony 1991: Modenity and Self-Identity. Self and Society in the Late Modern Age. Stanford: Stanford University Press.

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Hardt, Michael/Negri, Antonio 2000: Empire. Cambridge, MA/London: Harvard University Press.
Imbusch, Peter 2001: „’Überflüssige’. Historische Deutungsmuster und potentielle Universalität eines Begriffs“. In: Mittelweg 36, No. 5, pp. 49-62.
Koch, Lene 2002: “The Government of Genetic Knowledge”, in S. Lundin, & L. Akesson (eds.), Gene Technology and Economy. Lund: Nordic Academic Publishers, pp. 92-103.
Lemke, Thomas 2002a: „Biopolitik im Empire. Die Immanenz des Kapitalismus bei Michael Hardt und Antonio Negri“. In: Prokla. Zeitschrift für kritische Sozialwissenschaft, Vol. 32, pp. 619-29.
Lemke, Thomas 2002b: “Genetic Testing, Eugenics, and Risk”, in: Critical Public Health, 12. Jg., Nr. 3, 2002, S. 283-290.
Mietzsch, Andreas 2002: „Die Zeitschrift für Biopolitik – ein interdisziplinäres Medien-Projekt“. In: Zeitschrift für Biopolitik, Vol. 1., No. 1, pp. 3-4.
Nikolopoulou, Kalliopi 2000: “Agamben, Homo Sacer (Book Review)”. In: Substance, No. 93, pp. 124-31.
Norris, Andrew 2000: “Giorgio Agamben and the Politics of the Living Dead”. In: Diacritics Vol. 30, No. 4, pp. 38-58.
Panagia, Davide 1999. „The Sacredness of Life and Death: Giorgio Agamben's Homo Sacer and the Tasks of Political Thinking”. In: Theory and Event, Vol. 3, No 1.
Rose, Nikolas and Miller, Peter 1992: "Political Power Beyond the State: Problematics of Government." In: British Journal of Sociology Vol. 43, pp. 173-205.
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