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A Retroversion of Power:
Agamben via Foucault on
Sovereignty
Peter Gratton
a
a
Chicago, IL, USA
Published online: 21 Nov 2006.
To cite this article: Peter Gratton (2006) A Retroversion of Power: Agamben via
Foucault on Sovereignty, Critical Review of International Social and Political Philosophy,
9:3, 445-459
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Critical Review of International Social and Political Philosophy
Vol. 9, No. 3, 445459, September 2006

ISSN 1369-8230 Print/1743-8772 Online/06/030445-15 2006 Taylor & Francis
DOI: 10.1080/13698230600901238

A Retro-version of Power:
Agamben via Foucault on Sovereignty

PETER GRATTON

Chicago, IL, USA

Taylor and Francis Ltd FCRI_A_190043.sgm 10.1080/13698230600901238 Critical Review of International Social and Political Philosophy 1369-8230 Print/1743-8772 Online Original Article 2006 Taylor & Francis 93000000September 2006 PeterGratton p.gratton@comcast.net

A

BSTRACT

This essay reviews Agambens work on the sovereign exception to ask whether it
has missed crucial aspects in its reading of Foucault, especially given Foucaults worry that
the focus in political theory on sovereignty was but a focus on a retro-version of power. The
first part reviews Foucaults work on power and sovereignty in

The History of Sexuality

and
ancillary texts from the late 1970s and early 1980s, followed by Agambens work on sover-
eignty and its connection to the work of Foucault. The essay is less concerned with whether
Agamben is faithful to the work of Foucault than in ascertaining if Agamben forms a critique
of sovereignty in line with what Foucault would consider a nave notion of power, or if
Agamben has identified something about the very concept of sovereignty, its place as excep-
tion to law and history, that is missing from Foucaults analysis.

K

EY

W

ORDS

: Foucault, Agamben, sovereignty, power

Even today [without formal royalty], democracy has not profoundly displaced
this schema [of sovereignty]; it has only supposed or repressed it Like what
is repressed, then, the schema of the sovereign exception never stops returning.
(Nancy 2000)
Political theory has never ceased to be obsessed with the person of the
sovereign. We need to cut off the kings head: in political theory, that has
yet to be done. (Foucault 1980)
There is little doubt that, at least within the recent literature, sovereignty and its
reconceptualization, along the lines of Karl Schmitts work on the sovereign excep-
tion, has made a return, as Nancy suggests, if indeed it has ever left the way in which
the political has been thought. Giorgio Agambens recent work, for example in

Homo Sacer

and

State of Exception

, has been exemplary of this rethinking, offering
a compelling analysis of the history of the political as practiced in the West as the

Correspondence Address:

2444 W. Sunnyside Avenue No. 1, Chicago, IL 60625, USA. Email:
p.gratton@comcast.net
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446

P. Gratton

continual repetition of the

ban

, the inclusion/exclusion of what he calls bare life
an inclusion/exclusion that is the very effect of the sovereign decision against
which the political life is directed and constituted. What interests me here what
should be of interest to all those attempting to rethink sovereignty is whether
contemporary work on this concept suffers from a nave view of power identified
well in the first volume of

The History of Sexuality

: power operates along a line of
force that is always vertical, in a state-form, even if that state form is a state of
emergency discussed in Walter Benjamins Theses on the Philosophy of History
(Benjamin 1969: 257). One need not accept the whole of Foucaults work on power
to agree that power operates through the very movement of discourse (whether
political, psychological, historical or otherwise) and is polyvalent and polymorphic;
power is irreducible to the state apparatus. At the risk of falling into tautology, this is
what makes power powerful. In any event, the question of the polymorphism of
power is an apt one to put to Agamben in particular: it is in his work, rather than in
Derrida, Nancy, Chantal Mouffe and others, where one finds so many explicit
references to Foucault, especially the latters work on bio-power. My question is
whether Agamben has replaced Foucaults avowed regicide of power with an
emptied-out concept of sovereignty that nevertheless acts as a place-holder for a
reinsertion of a vertical conception of power whose crystallization, Foucault
believed, was the

result

, rather than the driving element, of the network of power
relationships operating in a society at a given time.
In the first part of this essay, I will review Foucaults work on power and sover-
eignty in

The History of Sexuality

and ancillary texts from the late 1970s and early
1980s. From here, I will quickly review Agambens work on sovereignty and its
connection to the work of Foucault. I am less interested in whether Agamben is
faithful to the work of Foucault than in ascertaining if Agamben forms a critique of
sovereignty in line with what Foucault would consider a nave notion of power, or if
Agamben has identified something about the very concept of sovereignty, its place
as exception to law and history, that is missing from Foucaults analysis. This may
seem to come down to whether sovereignty is

merely

a concept that escapes a
certain historicity (Agamben) or whether it has a certain historical unfolding
(Foucault). I will discard these possibilities: things are not so simple with either
writer, and their work is not reducible to either conceptual or historicist approaches.
This will become clear as we move along.

I

The contours of Foucaults main argument in

The History of Sexuality

are well
known. Foucault begins and ends this work by critiquing the reductionist view of
power despite the title of the work, it is less a treatise on sexuality than the
practices of power during the last two hundred years found in what Foucault terms
the repressive hypothesis. This hypothesis, Foucault writes, is not just simplistic but
works hand-in-glove with the rise of a regime of power-knowledge that it says it
critiques. The repressive hypothesis is based on a conflation of power with rules and
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Agamben via Foucault on Sovereignty

447
laws.

1

The history of sexuality under the repressive hypothesis is nothing other than
the silencing and censoring by authorities of perverted sexualities that threaten
(depending on the particular ideological approach) either the moral order or
economic capitalism. This view sees power as stable and coherent and thus escap-
able. As such, believers in the repressive hypothesis paint a portrait of the nineteenth
and early twentieth century, according to Foucault, against the backdrop of a poten-
tial liberation from this repression, a liberation already underway in the practices
and theories of the no-longer-repressed other Victorians. Notably, the repressive
hypothesis of society is but a cultural analogue to a long line of thinking in political
theory that has conflated power with law, that is, power as a negative element that
dictates only that which

cannot

be done under a given regime.
Foucaults objective in

The History of Sexuality

, he writes, is to analyze sexuality
not in terms of repression or law, but in terms of power. (Note that Foucault here
opposes power to law; later in

The History of Sexuality

, he will argue that the latter
is but the crystallization of various forms of power relations in a given society.
That is, it both refracts all other power relations at the same time that it solidifies the
power relations of a given period.) For Foucault, power is not a group of institu-
tions and mechanisms that ensure the subservience of the citizens of a given state,
or a mode of subjugation, which in contrast to violence, has the form of the rule
(Foucault 1978: 92). More pointedly, Foucault argues that power
is not a general system of domination exerted by one group over another, a
system whose effects pervade the entire social body. The analysis, made in
terms of power, must not assume that the sovereignty of the state, the form of
the law, or the over-all unity of a domination are a given at the outset; rather
these are only terminal forms power takes. [Thus power] must not be sought
in the primary existence of a central point, in a unique source of sovereignty
from which secondary and descendant forms would emanate. (Foucault 1978:
9293)
Foucault is critical of any discourse that assumes the performance of a sovereign,
even the sovereign-father of psychoanalysis (Foucault 1978: 150); power is always
decentered, a moving substrate of force relations which, by virtue of their inequal-
ity, constantly engender states of power that are nevertheless local and unstable
(Foucault 1978: 92). We move, then, in Foucault, from a grand-narrative of power
to a micro-politics engaged in analyzing the complex strategical situation in a
particular society (Foucault 1978: 93).
Foucault sets forth a number of propositions with regard to power: (1) it is not the
property of an agent, but is exercised from innumerable points, in the interplay of
non-egalitarian and mobile relations (Foucault 1978: 94); (2) though de-centered
from any subject, power is intentional, always operating strategically through a
series of aims and objectives (Foucault 1978: 95); and (3) relations of power are
immanent to all social relations (economic, scientific, pedagogic, sexual and so
forth). Power, thus, is irreducible to any entity or agent including, significantly,
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P. Gratton

though he doesnt mention it, the sovereign since power

comes from below

all
the way to the major dominations (emphasis added). The state, in sum, is nothing
other than an effect of power relations already at work in the discursive formations
of a given society (Foucault 1978: 94). We must, he writes, orient ourselves
toward a conception of power that
replaces the privilege of law with the view point of the objective, the privilege
of prohibition [as in the repressive hypothesis] with the viewpoint of tactical
efficacy, the privilege of sovereignty with the analysis of a multiple and mobile
field of force relations. The strategical model, rather than the model based on
law. (Foucault 1978: 102)
This must points us towards an ethics underway in Foucaults discussion of power:
we must rethink power not simply as a means of furthering theoretical practices,
but because of the affects of unequal power relations scattered across society. Two
further points are important: First, it appears that Foucault conflates sovereignty
with the functioning of the law, rather than recognizing that the very concept of
sovereignty puts it above or outside the law, as Agamben notes. The history of
liberal thought since Hobbes has been nothing other than an attempt to circumscribe
the sovereign exception within the rule of law, a theoretical challenge that has
largely failed thus the habitual return of the repressed noted by Nancy and the
opening provided to interventions such as those provided by Agamben. Secondly,
Foucault is also only calling into question the privileging of one model over the
other; he is not necessarily arguing that one phase (the phase of sovereignty) has
been superceded

in toto

. In his essay, Governmentality, for example, Foucault
argues that
We need to see things not in terms of the replacement of a society of sovereignty
by a disciplinary society and the subsequent replacement of a disciplinary soci-
ety by a society of government; in reality one has a triangle, sovereignty-disci-
pline-government, which has as its primary target the population and as its
essential mechanism the apparatuses of security. (Foucault 1994: 219)
Foucault is less than clear, writing three years after the publication of the first
volume of

The History of Sexuality

, about what this diagrammatic consideration of
sovereignty means. What is clear, though, is that the polymorphic power he identi-
fies in

The History of Sexuality

is a new phase in history. Here, Foucault argues that
there is indeed a move from the type of power demonstrated during the classical age
(via the sovereign and the rule of law) and the polymorphic operations of power in
the contemporary period.

2

It would seem, then, that the proponents of the repressive
hypothesis are engaged less in putting forth a nave view of power than describing a
functioning of power that is

pass

. For example, psychoanalysis, Foucault argues,
by theorizing sexuality in terms of the law, the symbolic order, and sovereignty,
attempted, in the first decades of the twentieth century to surround desire with all
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Agamben via Foucault on Sovereignty

449
the trappings of the

old order of power

(Foucault 1978: 150, emphasis added). The
version of the history of sexuality on offer from psychoanalysis, or even the ques-
tioning of sovereignty in Bataille, is, Foucault writes, in the last analysis a histori-
cal

retro-version

. We must conceptualize the deployment of sexuality on the
basis of the techniques of power that are

contemporary

with it (1978: 150, empha-
sis added). Or, as he puts it a 1976 lecture,
In the seventeenth and eighteenth centuries, we have the production of an
important phenomenon, the emergence, or rather the

invention

, of a

new

mechanism of power possessed of highly specific strategical techniques
absolutely incompatible with the relations of sovereignty This new type of
power

can no longer be formulated

in terms of sovereignty.

3

(Foucault
1980: 104105)
In fact, Foucault argues that retro-versionist theories of sovereignty
allow a system of right to be superimposed upon the mechanisms of discipline
in such a way as to conceal its [disciplines] procedures, the element of
domination inherent in its techniques, and to guarantee to everyone, by virtue
of the sovereignty of state, the exercise of his [or her] proper sovereign rights.
(Foucault 1980: 105)
As such, if sovereignty has survived as a discourse of its own into the twentieth (and
twenty-first) centuries, embedded in the legal codes of the West, it is only as a ruse
diverting attention from, and concealing from view, the disciplining of the body,
of life, taking place by means and devices of power heterogeneous to the
mechanisms of sovereignty. Foucault argues, it is the emergence of

population

as a
political term, that is, of bio-power (linked explicitly by Agamben to the sovereign
decision), which was the death of the regime of power associated with sovereignty
(Foucault 1994: 216). Retro-versions of sovereignty, for Foucault, reinforce rather
than resist these particular power formations; they preclude the analysis necessary
for such resistance (Foucault 1980: 187). Or, to put it even more succinctly,
Foucault writes, you no longer have a sovereign right that is in excess of biopower,
but a biopower that is in excess of sovereign right This formidable extension of
biopower will put it beyond all human sovereignty, that is to say, individual
mastery (Foucault 2004: 254).
This may be why, as we noted above, that Foucault argues in 1978 that power
continues to operate within a triangle (sovereigntydisciplinegovernment) that
includes, but is not dominated by, sovereignty. The latter operates, it seems, not
because it is dominant over a particular phase of society that recognizes its rights
over life and death. Rather, while no longer

the

locus of power, sovereignty haunts
(Foucault 1994: 187) the thinking of power to such a degree that, as a cover for the
regimes of discipline, it is, practically speaking, a point of relation within which
power moves in the contemporary period.
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450

P. Gratton

Let us quickly revisit the last chapter of

The History of Sexuality

, since this is
what Foucault calls the fundamental part of the book and will provide no small
amount of influence on Agamben. We will retrace, briefly, the genealogy of power
from a regime of sovereignty to the society of discipline and surveillance, the soci-
ety of bio-power, in the modern period. For a long time, one of the characteristic
privileges of sovereign power, Foucault begins the chapter, was the right to decide
life and death. Derived from the Roman

patria potestas

, which granted the father
the right to dispose of his children and slaves, sovereignty in the classical age was
redefined in a considerably diminished form as an ability to exercise power only
in the cases where the sovereigns very existence was in jeopardy (Foucault 1978:
135). Foucault does not develop here what both Schmitt and Agamben will note
about this peculiarity of sovereignty: it is the sovereign itself that dictates those
cases in which it is in jeopardy, operating as such outside the law in order to ensure
the effectiveness of the law; sovereignty as such never appears, pace Foucault, in a
diminished form. This is the sovereign exception. In any event, this power is
dubbed by Foucault conditional, for use only when the sovereigns very life is at
stake. The symbol of sovereignty was the sword,

4

Foucault remarks, and one can see
its example, he could note, in the depiction of Hobbess state on the cover of the

Leviathans

first editions. Power in a society governed by the sovereign is exer-
cised mainly as a means of deduction (

prlvement

), a subtraction mechanism
Power in this instance was essentially a right of seizure: of things, time, bodies, and
ultimately life itself; it culminated in the privilege to seize hold of life in order to
suppress it (Foucault 1978: 136).
In the contemporary period, power, Foucault believes, metastasizes itself through
an administration of life, in the name of the security and safety of populations. What
is at stake in this power is no longer the juridical existence of sovereignty; at stake
is the biological existence of a population, not a people. Power is situated and
exercised at the level of life, the species, the race, and the large-scale phenomena of
race (Foucault 1978: 137). Thus sexuality is an exemplary point through which it
operates, given the nexus of life and death, of population control, at stake in its
movement.
It is in the classical period that one form of power began to supplant the other.
During the classical period, the problems of birthrate, longevity, and public health in
general became the province of the power. Hence, Foucault writes, there was an
explosion of numerous and diverse techniques for achieving the subjugation of
bodies and the control of populations, marking the beginning of the era of bio-
power. The latter was an important element in the rise of capitalism (N.B., not
vice-versa, for Foucault) and what Foucault calls the entry of life into history, that
is, the entry of phenomena peculiar to the life of human species into the order of
knowledge and power, into the sphere of political techniques. In short, methods of
power and knowledge assumed responsibility for the life processes and undertook to
control and modify them. For the first time in history, no doubt, biological exist-
ence was reflected in political existence (Foucault 1978: 142). Another conse-
quence, Foucault writes,
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451
was the growing importance assumed by the action of the norm, at the
expense of juridical system of the law A power whose task it is to take
charge of life needs continuous regulatory and corrective mechanisms. It is
not longer a matter of bringing death into play in the field of sovereignty, but
of distributing the living in the domain of value and utility The law
operates more and more as a norm, and the judicial institution is increas-
ingly incorporated into a continuum of apparatuses (medical, administrative,
and so on) whose functions are, for the most part, regulatory. A normalizing
society is the historical outcome of a technology of power centered on life.
(Foucault 1978: 144)
In order words, bare life, as Agamben will call it, became included into the very
administration of the political itself. The

telos

of this thought, Agamben will say, is
nothing other than genocide and holocaust, and Foucault argues himself that bio-
power has given rise to the racist state.

5

Foucault concludes, in words oft-quoted by
Agamben:
For millennia, man remained what he was for Aristotle: a living animal with
the additional capacity for political existence; modern man is an animal whose
politics places his existence as a living being in question [in the double sense:
as a problem and as a threat]. (Foucault 1978: 143)
Thus, if philosophy begins with Socrates dictum that the unexamined life is not
worth living, for Foucault, modern power begins with the dictum that the unexam-
ined life, the undisciplined life, is not just death, but a threat to distributions around
the norm, to power itself (Foucault 1978: 144).

II

In

Homo Sacer

and related works over the past ten years, Agamben argues that the
original political relation is the

ban

, in which a particular mode of life is excluded
(and thus, by a certain logic, included) from the

polis

. Although it is unclear in
Agambens work whether the

ban

is a particularly modern phenomena, as it is in
Foucaults work, or has always already been at work in the politics of the West, it is
clear that the conditions for the possibility of the

ban

are co-extensive with Western
metaphysics. Whereas Foucaults analysis is historical, or better, genealogical,
Agambens work on the bio-political is often conceptual, which is what makes his
forays into concrete examples (e.g., the

Muselmnner

of the Nazi death camps) both
helpful to understanding his theory and often, well, infuriating, since Agamben
often piles on generalization after generalization about Western metaphysics in
books notable for essays short in length and broad in scope before arriving at the
claim that the death camps are not, contra Arendt, anti-political (since they lacked
any plurality or public space), but the apotheosis of the political itself, as least as it
has been dreamed of in the West.

6
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452

P. Gratton

For all of his influences (Schmitt, Derrida, Nancy, Foucault, Heidegger and
Benjamin) and the breadth of references coming in his texts in quick order (from
Aristotle to Heidegger to Roman law), the force of Agambens work is its interven-
tion in the space left behind by Foucault.

Homo Sacer

begins and ends, notably,
with references to Foucault, and the whole of Agambens work on the political
converges on his quest to accomplish what he believes Foucault failed to do: iden-
tify the heretofore hidden point of intersection between the juridico-institutional
and the bio-political models of power (Agamben 1998: 6). Let me quote at length
from Agamben on this point:
If Foucault contests the traditional approach to the problem of power, which is
exclusively based on juridical models (What legitimates power?) or on
institutional models (What is the State?), and if he calls for a liberation from
the theoretical privilege of sovereignty in order to construct an analytic of
power that would not take law as its model and code, then where, in the body
of power, is the zone of indistinction (or, at least, the point of intersection) at
which technologies of individualization and totalizing procedures converge?
And, more generally, is there a unitary center in which the political double
bind finds its reason to be? What is the point at which the voluntary
servitude of individuals comes into contact with objective power?
Confronted with phenomena such as the power of the society of the spectacle
that is everywhere transforming the political realm today, is it legitimate or
even possible to hold subjective technologies and political technologies apart?
The present inquiry concerns precisely this hidden point of intersection
between the juridico-institutional and the biopolitical models of power.
(Agamben 1998: 56; repeated almost verbatim at 119)
The nucleus of this zone of indistinction is sovereignty: It can even be said, Agam-
ben writes, that the production of a biopolitical body is the original activity of sover-
eign power (Agamben 1998: 6). Bare life is produced in and through the fundamental
act of sovereignty deciding upon who is and who is not to be granted status in the
state and thus is politicized by the sovereigns very act of exclusion. For Carl
Schmitt, the exception is related directly to the state of emergency, a situation
(economic or political) that threatens the state and requires the sovereign to act
outside the law in order to protect the very continuance of those laws. But since it is
the sovereign who decides whether this crisis exists, and since this crisis is always
one that is extra-constitutional, no law can ever anticipate, that is to say limit, the
sovereign in advance. Sovereignty is nothing other than this monopoly over this deci-
sion, a decision, ultimately, over the distinction between friend and enemy, the funda-
mental political distinction for Schmitt. The political enemy, Schmitt writes, is
the other, the stranger; and it is sufficient for his nature that he is, in a specially
intense way, existentially something different and alien, so that in the extreme
case conflicts with him are possible. These can neither be decided by a previous
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Agamben via Foucault on Sovereignty

453
determined general norm nor by the judgment of a disinterested and neutral
party. (Schmitt 1996: 27)
This is the crux of Schmitts attack on liberalism in general, namely, that in the
name of the rule of law, the openness of discussion of parliaments and congresses, it
has obscured the fundamental political distinction that makes such laws possible in
the first place: the friend-enemy distinction. In other words, where liberals see the
state as the meeting ground for consensus and cautious half-measures, Schmitt
sees only the stabilized results of a conflict that brought a people into being in the
first place (Schmitt 2006: 63). The state is not simply a facilitator of open discus-
sions among disparate groups, or an administrator of economic goods for society; it
is primarily a means for internal order such that a proper relation of enmity with
other peoples can be constituted. The normal order that liberalism takes for
granted is nothing other than the result of an originary and instituting violence of the
state of exception, which returns at each moment that the constitutional order is
threatened: every legal order is based upon a decision (Schmitt 2006: 6).
It really does not matter whether an abstract scheme advanced to define
sovereignty (namely, that sovereignty is the highest power, not a derived
power) is acceptable What is argued about is the concrete application, and
that means who decides in a situation of conflict what constitutes the public
interest or interest of the state, public safety and order,

le salut public

, and so
on. The exception, which is not codified in the existing legal order, can at best
be characterized as a case of extreme peril, a danger to the existence of the
state, or the like. But it cannot be circumscribed factually and made to conform
to a preformed law. (Schmitt 2006: 6)
Or, to put it succinctly, sovereign is he who decides on the exception (Schmitt
2006: 6). For Schmitt, it is clear, too, that he means for these moments of exception
to be temporary. Despite its placement outside the law, this sovereign decision is not
arbitrary, since it keeps in place the very normalcy that prevents a slide into utter
chaos;

le salut public

is thus both an (ostensibly temporary) good-bye to the public
space and its saving grace.
What characterizes an exception is principally unlimited authority, which means
the suspension of the entire existing order. In such a situation it is clear that the
state remains, whereas law recedes. Because the exception is different from anar-
chy and chaos, order in the juristic sense still prevails even if it is not of the ordi-
nary kind. The existence of the state is undoubted proof of its superiority over the
validity of the legal norm. The decision frees itself from all normative ties and
becomes in the true sense absolute. The state suspends the law in the exception
on the basis of its right of self-preservation, as one would say (Schmitt 2006: 12).
We could spend an entire essay following the turns of this circular reasoning, of
the foundationless fiction of the right of self-preservation sovereignty operates,
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454

P. Gratton

Schmitt writes, exceptional to any norm, any right, and any law--based on nothing
other than an appeal what everyone knows: as one would say.
As Agamben reads Schmitt, the sovereign exception is the decision over the very
relation between law and fact, or, to put it another way (and to show the breadth of
Agambens analysis), the interpretive leap between the universal and particular that
is the province of all judgments, juridical and otherwise. The sovereign structure of
the law, its peculiar and original force has the form of a state of exception in which
fact and law are indistinguishable (yet must, nevertheless, be decided on)
(Agamben 1998: 27). This power of the sovereign is always potential, for the sover-
eign never exhausts itself in its actual use of power (Agamben 1998: 1819).
Bare life is produced in and through the fundamental act of sovereignty deciding
upon who is and who is not to be granted status in the state and thus is politicized
by the sovereigns very act of exclusion. For Carl Schmitt, the exception is related
directly to the state of emergency, a situation (economic or political) that threatens
the state and requires the sovereign to act outside the law in order to protect the very
continuance of those laws. But since it is the sovereign who decides whether this
crisis exists, and since this crisis is always one that is extra-constitutional, no law can
ever anticipate, that is to say limit, the sovereign in advance. Sovereignty is nothing
other than this monopoly over this decision, a decision, ultimately, over the distinc-
tion between friend and enemy, that is, the fundamental political distinction for
Schmitt (Schmitt 1996: 2227). As Agamben reads Schmitt, the sovereign exception
is the decision over the very relation between law and fact. The sovereign structure
of the law, its peculiar and original force has the form of a state of exception in which
fact and law are indistinguishable (yet must, nevertheless, be decided on) (Agamben
1998: 27). And this power of the sovereign is always

potential

, for the sovereign
never exhausts itself in its actual use of power (Agamben 1998: 1819).
As such, bare life has entered the

polis

to such an extent that all life, for the sover-
eign, has been reduced to bare life in the states of emergency making states of
emergency zones of indistinction between nature (

physis

) and law (

nomos

),

z

[ emacr ]

and

bios

(Agamben 1998: 64):
If the exception is the structure of sovereignty, then sovereignty is not an exclu-
sively political concept, and exclusively juridical category, a power external to
law (Schmitt), or the supreme category of the juridical order (Hans Kelsen): it
is the originary structure in which law refers to life and includes it in itself by
suspending it The relation of exception is a relation of ban. He who has been
banned is not in fact, simply set outside the laws and made indifferent to it but
rather

abandoned

by it, that is, exposed and threatened on the threshold in
which life and law, outside and inside, become indistinguishable. It is literally
not possible to say whether one who has been banned is outside or inside the
juridical order. (Agamben 1998: 2829)
It follows from all of this that biopolitics is at least as old as the sovereign excep-
tion. That is to say, wherever there is the sovereign exception (and Agamben will
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Agamben via Foucault on Sovereignty

455
date this exception all the way back to Aristotle (Agamben 1998: 27)), there is
biopolitics. Agambens contention, though he doesnt state it explicitly, is a reversal
of Foucaults claims with regard to sovereignty.
Two problems arise immediately. First, if, as Agamben argues, the problem of
bare life dates at least to the diffentiation of

z

[ emacr ]

(bare life) and

bios

(the life partic-
ular to the

polis

) in Aristotles

Politics

(Agamben 1998: 13, 98101), then why is it
a particularly modern movement that sees the politicization of bare life and the
entry of

z

[ emacr ]

into the

polis

? How is it the modern event

par excellence

? What
makes the bio-political (and the sovereignty that is its link to the juridical-institu-
tional) the metaphysical task

par excellence



and

modern? Secondly, and related to
this, is Agambens attempt to bridge these two claims. The modern event of the
entry of

z

[ emacr ]

into the

polis

occurred by a declaration of modernitys own faithful-
ness to the essential structure of the metaphysical tradition. Did the sovereigns of
early modernity suddenly read Aristotle? Did these would-be philosopher kings
bring out, de-conceal, what philosophy always wanted at its very core? This point is
at once glib and important. Agambens work is rife with metaphors of concealment
and de-concealment, a debt owed to his work on Martin Heidegger. Early modernity
only brought to light, he says, the secret unity between power and bare life in the
exercise of sovereignty, and it is only inevitable that this biopolitics operates,
though concealed, within metaphysics itself (Agamben 1998: 122). All this as bio-
power secretly governs modern ideologies of the left and the right (a view that
Foucault also shared, though Foucaults analysis is not as apocalyptic as Agam-
bens). Uncovering these secret and hidden collusions is what is necessary in the
face of the

telos

of Western metaphysics. Only this de-concealing can save us
from the more and more bio-politicization, that is the increasing dominance of
the state of exception (Agamben 2005: 2), as it returns philosophy to its practical
calling (Agamben 1998: 6). This would be nothing other than the discovery, a
bringing to light, of a new politics no longer founded in the

exceptio

of bare
life (Agamben 1998: 11). A classic messianism.
Leaving this aside, Agamben is correct to point to a deeper consideration of the
exception of sovereignty necessary in thinking the political. And it is true that
Foucaults modes of resistance in his texts of the early 1980s, in terms of pleasures
of the body, can appear isolated from the problems of the states of exception. Agam-
ben concludes his book with a consideration of Foucaults work (and Ill quote one
last time at length):
At the end of the first volume of the

History of Sexuality

, having distanced
himself from the sex and sexuality in which modernity, caught in nothing other
than a deployment of power, believed it would find its own secret and libera-
tion, Foucault alludes to a different economy of bodies and pleasures as a
possible horizon for a different politics. The conclusions of our study force us
to be more cautious. Like the concepts of sex and sexuality, the concept of the
body too is always already caught in a deployment of power. The body is
always already a biopolitical body and bare life, and nothing in it or the
o e
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456 P. Gratton
economy of its pleasure seems to allow us to find solid ground on which to
oppose the demands of sovereign power Today, a law that seeks to trans-
form itself wholly into life is more and more [again more and more]
confronted with a life that has been deadened and mortified into juridical rule
We are not only, in Foucaults words, animals whose life as living beings is
at issue in their politics, but also inversely citizens whose very politics is at
issue in their natural body It cannot be overcome in a passage to a new body
in which a different economy would not once and for all resolve the inter-
lacement of zo[ emacr ] and bios that seems to define the political destiny of the West.
(Agamben 1998: 188189, last emphasis added)
But Foucault never denied the bio-politicization of the body, a point repeated so
often in The History of Sexuality that no page citation is necessary. And Foucault
never lost sight of the role of sovereignty and law in the modern age of politics and
power, though, as we noted above, he saw sovereignty considerably diminished
and conflated the two. Just after calling for regicide in political theory, Foucault
notes:
I dont want to say that the state isnt important; what I want to say is that
relations of power, and hence analyses made of them, necessarily extend
beyond the limits of the state. In two senses: first of all because the State, for
all the omnipotence of its apparatuses, is far from being able to occupy the
whole field of actual power relations, and further because the state can only
operate on the basis of other already existing power relations. (Foucault 1980:
122, emphasis added)
In short, Foucault does not, as Agamben suggests, offer a dualism of puissance (an
incommunicable rupture between the power of the state and the powers from
below) thus Foucaults metaphor of the state as a crystallization of power. This is
all not to put forward an apologia for Foucault. By re-centralizing power in the
sovereign exception, Agamben offers a compelling thesis for the operation of a
certain vertical power, perhaps as the thinker on all the consequences of the sover-
eignty. For example, Agamben is on to something in The State of Exception in
applying his previous work to the Patriot Act and Bushs extra-constitutional
maneuvers post-11 September 2001 (though, as Agamben would likely point out,
the United States has not just in recent years become the rogue state that it is).
Certainly, Bush and his vice-president are Schmittian in their belief in the sovereign
exception, arguing that the executive, in protecting the laws of the United States,
ought not to have any limits placed upon it in exercising these laws. Thus, when the
president famously remarked in November 2005, after the publication of numerous
administration memos and Red Cross and other human-rights organizations reports
pointing to the contrary, that we do not torture and that the US government was
following the law, the tautology was clear, even in the American media. Our
country is at war, and our government has the obligation to protect the American
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Agamben via Foucault on Sovereignty 457
people, Bush said, unknowingly repeating Foucaults 30-year old refrain on bio-
power, adding, anything we do to that effort, to that end, in this effort, any activity
we conduct, is within the law. As one web magazine put it, anything we do is
within the law because anything we do is within the law, given the administra-
tions claims that any actions it takes in the global war on terror is lawfully within
the presidents constitutional authority.
7
There is no need to revisit the ample
literature on this here.
8
But it is this focus on this state apparatus that has led some to look continually for
memos of evidence linking the presidents administration to abuses in Iraq,
Afghanistan, Cuba and in the reopened prison camps of Eastern Europe. For these
critics, this would be proof of our worst fears of bio-politics, that the state was itself
terrorist, reducing all its enemies to bare life, whether citizen or not. No doubt. But
what is more terrifying, what is more insidious about power relations is that the link
between the White House and the American guards committing atrocities may have
been a mere coincidence in goals, horizontal movements of power without a direct-
ing agent, that is, indeed, as a biopower, as Foucault put it, in excess of sovereign
right and human sovereignty. What is more insidious is that, across the world,
no top-down orders were needed in the operation of a certain bio-power, with power
and domination and, yes, a disciplining of other cultures operating horizontally
across a society expanding its reach. All this occurred without the needs for orders
of a sovereign as a society marginalizes and terrorizes the Other in the name of the
security of a particular population, while its troops experience the perverse
pleasure of power itself.
Notes
1. Foucaults use of the repressive hypothesis in the text is less as a critique of a broad swath of
psychoanalysis than as a straw man against which to discuss power. This straw man would be one
that cannot tell the categorical difference between repression and oppression, the latter being always
vertical in its essence. The former, I would argue, operates, in more polyvalent ways than Foucault
addresses in this short volume, as he admits (Foucault 1990: 8183). Such a notion of repression is
itself at work in Foucault when he addresses the question of sovereignty in the modern age: it is used
to conceal the polymorphism of power. Is this not really repression concealment and ruses brought
on by a certain desire within power relations in another guise? Isnt this what Foucault broaches
when he discusses the possiblity that underlying the scientia sexualis and perhaps with it, an entire
episteme of power is an ars erotica, a movement of pleasure that may underly this particular nexus
of power-knowledge? Is there not here, in Foucault, a very rich notion of repression, if he could
bring himself to use the word? It is notable that Foucault at once admits that few could or would
believe in a conception of power that is said to underlies the repressive hypothesis, though it does
have its adherents (notably, Reich, the target of the book finally announced in the last chapter), and
that mention of more complicated versions of desire in psychoanalysis is perfunctory.
2. See, for example, Deleuzes Foucault. Deleuze reads Foucault as positing two phases of power, from
the phase of sovereignty to the phase of polymorphic power: What is Foucault trying to say in the
best pages of The History of Sexuality? When the diagram of power abandons the model of sover-
eignty in favor of a disciplinary model, when it becomes bio-power or bio-politics of populations,
controlling and administering life, it is indeed life that emerges as the new object of power. At that
point, law increasingly renounces the symbol of sovereign priviledge, the right to put someone to
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458 P. Gratton
death (the death penalty), but allows itself to produce all the more hecatombs and genocides in the
name of race, precious space and the survival of a population that believes itself to be better than
its enemy, which it now treats not as the juridical enemy of the old sovereign but as a toxic or
infectious agent (Deleuze 1980: 92).
3. Foucault dates this mutation in power to the writings of the counter-sovereigntists in eighteenth-
century France, mosty notably the Cont de Boulainvillier. For Foucault, Boulainvilliers forms such a
contrapuntal relationship to the history of his period, one which generally told only the history of
kings. Boulainvilliers work, for Foucault, is instrumental for rethinking society as one always at war
within itself, as a more or less horizontal movement of forces that has one of its nodal points in the
sovereign, but not reducible to this vertical relationship, as the royalists and their historical accounts
of the time assume. In other words, Boulainvilliers, according to Foucault, provides a precursor to
just the kind of thinking of power that Foucault believes operates in the modern period (Foucault
2004: 162174).
4. We can note again Foucaults conflation of sovereignty with the law: Law cannot help but be armed
The law always refers to the sword (Foucault 1978: 144). See also Power/Knowledge: To pose
the problem in terms of the state means to continue posing it in terms of sovereign and sovereignty,
that is to say, in terms of law (Foucault 1980: 122).
5. With the emergence of bio-power, Foucault argues, racism is inscribe[d] in the mechanisms of the
state. It is at this moment that racism is inscribed as the basic mechanism of power It is a way of
separating out groups that exist within a population. It is, in short, a way of establishing a biological-
type caesura within a population that appears to be a biological domain (Foucault 2004: 254255).
Racism, Foucault argues, serves two functions: (1) to make a subdivision of the races, of the species,
and (2) to make relations within a society not-war like, but rather, that of a biological-type relation-
ship. The reason this latter mechanism can come into play, he argues, is that enemies who have to
be done away with are not adversaries in the political sense of the term; they are threats, either exter-
nal or internal, to the population and for the population (2004: 255). In the biopower system, in
other words, killing or the imperative to killing is acceptable only if it results not in a victory over
political adversaries, but in the elimination of the biological threat to and the improvement of the
species or race (2004: 256). For a fuller discussion of Foucaults treatment of racism in Society
Must Be Defended, see Kelly 2004.
6. One should note the claustrophobia of sourcing in both Agamben and Foucault. Not only are their
works too distanced from the realities of colonialism and neo-colonialism that take place during the
phases of power they discuss, but their descriptions of the West make it seem as if Western Europe
were an enclave impervious to influence from the outside. Agambens work is particularly symptom-
atic of a certain Euro-centrism even among those who should know better. Agambens treatment of
the Rwandan genocide, to cite one example, is at best ill-informed; at worst, it repeats a typical
philosophical approach (found in Rousseaus essays on the global south, Kants Anthropology, and
Hegels lectures on history) of treating the others of Europe, in particular those on the African conti-
nent, as mere grist for the work of theory.
7. See War Room, Salon.com, 6 November 2005, and Michael Isikoff, 2001 Memo Reveals Push for
Broader Presidential Powers in Newsweek, 18 December 2004.
8. For example, Alfred W. McCoy (2006) provides an indispensable history of recent US policy on
torture and state terror.
References
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