The Unexceptional Exception: Sovereignty, Human Rights and Biopoltics Sam Adelman

Divine violence may be called sovereign violence. - Walter Benjamin, Critique of Violence Sovereign is he who decides on the exception. - Carl Schmitt, Political Theology [T]he production of a biopolitical body is the original activity of sovereign power. - Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life Empire is the sovereign power that governs the world. - Michael Hardt & Antonio Negri, Empire

How do we explain how the amount of lawlessness increases in direct proportion to the increase in law, so that never before have the rightless had so many rights? In Britain, for example, more criminal legislation has been passed in the last decade than the preceding century. Between May 1997, when it came to power, and September 2008, the Labour government had created 3,605 new criminal offences, almost one a day and an average of 320 per year. 1 Virtually no aspect of life is excluded from this biopolitical legislative onslaught. In all areas of life, writes Esposito, there is today a tendency to flatten the political into the purely biological (if not to the body itself) of those who are at the same time subjects and objects and
the enormous growth in migratory flows of men and women who have been deprived of every judicial identity, reduced to the state of bare sustenance these are nothing other than the traces of the new scenario. If we look then at the continuing indistinction between norm and exception that is tied to the stabilization of emergency legislation, we will find yet another sign of contemporary societys increasingly evident biopoliticization. (Esposito 2008:146-47).

Michel Foucault gave us the concept of biopower. He argued that sovereignty began to decline with the fall of absolute monarchies, resulting in a major shift that marked the threshold of biological modernity (Foucault 1978:143) when the lives of human beings become the major stake in the strategies of power. This new form of power is biopolitics, whose operation is ensured not by right but by technique, not by law but by normalization, not by punishment but by control, methods that are employed on all levels and in forms that go beyond the state and its apparatus (Foucault 1976:89).2 The connection between sovereign power and biopower lies in the shift from one r egime to another: one of the greatest transformations political rights underwent in the
1

The Telegraph, 4 September 2008: http://www.telegraph.co.uk/news/uknews/2679148/Labour-hascreated-3600-new-offences-since-1997.html. 2 Esposito (2008:15) argues that biopolitics and biopower should not be conflated: By the first is meant a politics in the name of life and by the second a life subjected to the command of politics.

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nineteenth century was precisely that, I wouldnt say exactly that sovereignty old right to take life or to let live was replaced, but it came to be complemented by a new right which does not erase the old right but which does penetrate it, permeate it. This is the right, or rather precisely the opposite right. It is the power to make live and let die (Foucault 2003:241). And elsewhere, biopower is the power to make live. Sovereignty took life and let live. And now we have the emergence of a power that I would call the power of regularization, and it, in contrast, consists in making live and letting die (Foucault 2003:246-47). Sovereignty is a notoriously elastic and slippery concept.
The existing concepts of legal and political thought are inadequate to grasp its obscure and indeterminate nature. It has proven to be resistant to theoretical clarification and conceptual systemization. Both legal and extralegal, neither public nor private, evoked as the foundation of constitutional constructions and yet considered external to them, productive and repressive at the same time, moving restlessly between the norm and the exception, appearing in institutional forms only to vanish in the realm of the extra-institutional, sovereign power defies fixed categories of thought. (Kalyvas 2005:107).

Although Foucault proclaimed that sovereignty was dethroned in the nineteenth century, the now commonplace conception that the Westphalian period is over is of more recent vintage. Hardt and Negri are perhaps most well known amongst those who argue that it is being decentred and deterritorialised, while others view it as being split, shared or disaggregated. 3 So how do we explain the paradox that it appears to be as pervasive as ever, that it seems to disappear without going away? There are three possibilities: (i) sovereignty has metamorphosed from absolutism to Empire, which is Hardt and Negris Foucauldian thesis: (ii) it is being dispersed through the assumption by non-state actors of hitherto sovereign powers and prerogatives; or (iii) following Agambens analysis in Homo sacer and State of Exception, its basic structure has endured throughout political modernity but we misconceived it. Whereas legal and political theory have conspicuously failed to provide an adequate explanation, philosophy comes closest to solving the conundrum particularly in the thought of two Italian philosphers, Agamben and Roberto Esposito. Biopower is at the core of Giorgio Agambens analysis of sovereignty, whose logic revolves around the production and capturing of bare life as an ostensible exception to the norm. Rather than being absolutely incompatible with sovereignty as Foucault asserts, Agamben argues that biopolitics is the essence of sovereignty. (Foucault 2003:46 ). Foucaults thesis must therefore be corrected, or at least completed (Agamben 1998:9) because sovereignty and biopolitics have been co-implicated since the dawn of Western political modernity; indeed, the production of a biopolitical body is the originary activity of sovereignty power (Agamben 1998:6). Agamben is correct to argue that Foucault never resolved this tension in his uvre, which is revealed in contradictory statements concerning the demise and persistence of sovereignty, which persists alongside biopolitics rather than being superseded by it.4 However, sovereignty cannot be reduced to biopolitics because it is, I argue, ulti3

Hardt and Negri (2000); also Sassen (1991, 1996, 1998, 2004) and Slaughter (2004) from the vast literature on the decline of modern sovereignty.
4

See Golder and Fitzpatrick (2008) for both a defence of Foucault and a discussion of his numerous inconsistencies.

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mately contingent upon what Foucault regarded as the antithesis of the latter, the factor that makes sovereignty sui generis: death. Comprehending biopolitics and bare life outside death is not possible, and it is only in this way that sovereigntys tendency to thanatopolitics can be understood. Agamben himself must be amended or at least corrected. Law,Rights and the Structure of the Exception Combining Schmitts infamous definition - Sovereign is he who decides the exception (Schmitt 1988:5) with Foucaults conception of biopolitics, Agamben argues that bare life is produced in a zone of indistinction in which law and fact and law and sovereignty are blurred. The camp is the hidden matrix and nomos of the political space in which we are still living (Agamben 1998:174, 166), the space in which the state of exception is materialised and anomie is produced through a surfeit of law to which bare life is abandoned. Sovereign rationality manifests itself not only in the Auschwitz-Guantnamo-Gaza continuum, but everywhere. It is a spatial metaphor in which the camp is gradually universalised and we all become putative homines sacri. Contrary to the myths and dreams of liberal legality, in which the exception is by definition abnormal and thus proves the rule, its extension through the techne of biopolitics produces the aporia of an unexceptional state of exception. They key to understanding the structure of the sovereign exception is the ban, in which the force of law is applied in order to make the law unenforceable, and its su bject-object included in the law precisely in order to be excluded from it, literally aban-doned to and under the law. It is thus hardly surprising that means of imposing internal exile under the apartheid regime was the banning order: the imposition of the law in order to exclude the recipient from all resort to the law. The capacity to decide the exception implies the possibility that sovereignty is not juridical. At best, Agamben views the decision as taking place on a threshold in which fact and law are blurred where it is impossible to distinguish the inside and outside of law. Power is not subject to pre-existent law and the rule of law is a chimera. The contradiction is intensified by the fact that law is the means by which anomie is produced, rendering law counterproductive and aporetic. And, to the extent that human rights are juridicalised, the power of the alternative paradigm they promise is undermined.5 In their current incarnation human rights are trapped in sovereign rationality and, to paraphrase Marx, will not become rights in and for themselves unless and until they break free. Sharing the same DNA, sovereignty is the evil twin of human rights, their precondition and sine qua non. Talal Asad captures this paradox in noting that Human rights depend on national rights. States are essential to the protection they offer. This means that states can and do use human rights discourse against their citizens - as colonial empires used it against their subjects - to realize their civilizing project. 6 Writing about the 1945 Nuremberg Charter, a confection designed to address the consequences of uncontained sovereignty, Fine notes that amongst the criticisms to which it has been subjected is the irony that there was a reluctance to use the charge of crimes against humanity against defendants for fear of defying established norms of
5

See the debate between Sen (2004) and Baxi (2006a) on the desirability of juridicalising human rights. 6 Talal Asad, What Do Human Rights Do? An Anthropological Enquiry, Theory and Event, paragraph 113: http://muse.jhu.edu/journals/theory and event/v004/4.4asad.html.

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international sovereignty (Fine 2003:455). Six decades on, sovereignty remains universalised to a greater extent than any other juridico-political principle, including human rights. Since the Peace of Westphalia in 1648, when God, so to speak, came down to earth and was incarnated in the form of the monarch, sovereignty has been the decisive factor in both the ascription and violation of rights. During the reconstruction of the international order following the Second World War, an unresolved contradiction was locked into the system. In 1945, the United Nations made reference to human rights but its primary purpose was to re-entrench sovereignty as the pre-eminent principle of the international legal order.7 In 1948 the Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly, its Preamble proclaiming the inherent dignity and equal and inalienable rights of all members of the human family [a]s the foundation of freedom, justice and peace in the world.8 Since Nuremberg there has been a gradual if unsteady erosion of sovereign power symbolised by the Pinochet cases and the creation of the International Criminal Court but the edifice remains in place.
Both legal and extralegal, neither public nor private, evoked as the foundation of constitutional constructions and yet considered external to them, productive and repressive at the same time, moving restlessly between the norm and the exception, appearing in institutional forms only to vanish in the realm of the extrainstitutional, sovereign power defies fixed categories of thought. (Kalyvas 2005:107).

The irony is that a rights regime designed to make sovereignty accountable was, from the outset, contingent upon sovereignty itself because whilst the subject of human rights was the human being, their object was the sovereign state. Six decades into the age of rights, sovereignty seems to disappear without going away. Inhuman Rights The theoretical backlash on human rights following the war on terror is unsurprising. The provocation of sovereignty by fundamentalists disinterested in human rights provided a pretext for the intensification of biopolitical controls by authoritarian regimes around the world. In the open-ended, permanent war on terror the assault on rights has reached unprecedented levels and is reflected in attempts to reformulate international law. With unconscious irony, Chandler argues that The old principle of sovereign equality is a barrier to acting on the new principle of the right of intervention This new human rights principle, derived from the needs of the universal human rights victim, imposes a duty on outside bodies to act if the nation-state, of which they are a citizen, fails or is unable to do so (Chandler 2002:131). It is difficult not to concur with Richard Falks sobering observation that the power of rights, although a much more potent reality than would have seemed likely a century ago, is still no
7

The Preamble asserts faith in fundamental human rights, in the dignity and worth of the human person, [and] in the equal rights of men and women, but Article 2.1 states that The Organization is based on the principle of the sovereign equality of all its members. The scope of sovereignty is reinforced in Article 2.7: [n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state. 8 Sovereignty is implicit in the Declaration, which applies to the peoples of Member States themselves and among the peoples of territories under their jurisdiction. It can be signed only by states, and the Preamble refers to the promotion of the development of friendly relations between nations and the member states that have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.

match for the rights of power in a variety of settings, not least the sovereign nationstate (Falk, 2008). The appropriation of human rights by reactionary powers is not new. As Pierce and Rao (2006:3) put it, the sometimes peculiar use of human rights can be located within a longer-term history of humanitarian justifications for political projects: colonizing India to abolish widow burning, for example, or Africa to missionize and abolish slavery. Violence and deprivation enabled by Western technological superiority and legitimated by ideologies of humanitarianism appear to be novel. In fact they repeat a historical process that has consistently redefined the human through political projects of control and governance. Pre-emptive regime change, extraordinary renditions, torture, Guantnamo Bay, the refusal to accord combatant status under the quaint Geneva Conventions, control orders in the UK similar to apartheid banning orders under apartheid, and unprecedented biopolitical surveillance comprise a litany of abuses perpetrated by resurgent sovereign security states. In the wars of and on terror, states of exception are normalised as manifestations of sovereign exceptionalism exploiting the politics of fear the official prose of the war on terror now presents a clear and present danger to the otherwise much vaunted ontological robustness of human rights and fundamental freedoms (Baxi 2005:25). At the technical juridico-political level, the foundations of the new international law are being laid through a complex mosaic of the individual and collective right to pre-emptive self-defence, justifications for the use of United Nations unsanctioned use of force for the violent achievement of regime change, and the equally violent disregard for the hitherto relatively settled norms of international humanitarian law (Baxi 2005:35). New international law, argues Baxi, is characterized by the surveillance, discipline and punishment of rogue or outlaw states, the redundancy of earlier hard and soft law, and rank self-justifying consequentialism. In Huntingtons odious construction, in the clash of civilizations the Schmittian friend-enemy dichotomy (Mutua, 2002) is resurrected (George W. Bush: youre either with us or against us) in a vain attempt to legitimate draconian legislation, xenophobia, and violations of human rights law, humanitarian law and the laws of war. As Judith Butler puts it:
[I]f the self-preserving and self-augmenting aims of the state are once more linked with sovereignty [it] can be mobilized as one of the tactics of governmentality both to manage populations, to preserve the national state, and to do both while suspending the question of legitimacy. Sovereignty becomes the means by which claims to legitimacy function tautologically. (Butler 2004:9697).

Butler argues that biopower constitutes people as less than human without entitlement to rights, as the humanly unrecognizable. This is different from producing a subject who is compliant with the law; and it is different from the production of the subject who takes the norm of humanness to be its constitutive principle. The subject who is no subject is neither alive nor dead, neither fully constituted as a subject nor fully deconstituted in death (Butler 2004:98). Governmentality exposes law as a set of tactics and
the operations of governmentality are for the most part extra-legal without being illegal. When law becomes a tactic of governmentality it ceases to function as a legitimating ground: governmentality makes concrete the understanding of power

as irreducible to law. Thus governmentality becomes the field in which resurgent sovereignty can rear its anachronistic head, for sovereignty is also ungrounded in law [and] denotes a form of power that is fundamentally lawless, and whose lawlessness can be found in the way in which law itself is fabricated or suspened at the will of a designated subject. The new war prison exploits the extra-legal dimension of governmentality to assert a lawless sovereign power over life and death. (Butler 2004:94-95; emphases in original).

Anti-terrorist legislation demonstrates the intensification of biopolitical control as all forms of resistance are construed as terrorism. The deployment of biotechnologies provides sovereignty with unprecedented mechanisms of surveillance, control, discipline and punishment. The distance between liberal democracy and authoritarianism grows ever narrower. The UK has more CCTV cameras per capita than any other country; the Bush II administration has engaged in illegal phone tapping and the illegitimate tracking of financial information through the SWIFT system; everywhere DNA swabs, 9 biometric passports and identity cards undermine the right to privacy in Orwellian ways. Sleepwalking, we are ushered into a permanent state of emergency in which the exceptional is unexceptional. Self-preservation, security and order - the raison detre for the emergence of Hobbes Leviathan - are pursued in a globalised state of nature in which there is no sovereign of sovereigns alongside a rampant sovereignty ostensibly in decline.10 For Hardt and Negri this is sovereignty with no centre, everywhere but unlocatable; for Beck and Grande (2007), it is akin to the cosmopolitan sovereignty of the European Union. Race and nationality have always defined the relationship between citizens and sovereigns; the re-emergence of religion takes us back to the Westphalian future. The war on terror is the latest version of the civilised-other, modern-backward dichotomies in a hubristic reinvigoration of sovereignty. 11 Far from containing, circumscribing or limiting it, human rights are confronted by the rebarbative sovereignty of transnational surveillance states (Beck, 2005) seeking to redefine imperial interventions as humanitarian harbingers of democracy and human rights - an assault greatly facilitated by market and religious fundamentalism and global terrorism. In this new era of humanitarianism, Rancire argues, the Rights of Man turned out to be the rights of the rightless, of the populations hunted out of their homes and land and threatened by ethnic slaughter. They appeared more and more as the rights of the victims, the rights of those who were unable to enact any rights or even any claim in their name, so that eventually their rights had to be upheld by oth9

One aspect of the massive biopolitical onslaught by the UK government was condemned by European Court of Human Rights in December 2008. The fingerprints and DNA samples of more than 857,000 innocent citizens who have been arrested or charged but never convicted of a criminal offence now face deletion from the national DNA database after a landmark ruling by the European court of human rights in Strasbourg. In one of their most strongly worded judgments in recent years, the unanimous ruling from the 17 judges, including a British judge, Nicolas Bratza, condemned the blanket and indiscriminate nature of the powers given to the police in England, Wales and Northern Ireland to retain the DNA samples and fingerprints of suspects who have been released or cleared The Guardian, 5 December 2008: http://www.guar-dian.co.uk/politics/2008/dec/05/dna-database-civilliberties. (S. and MARPER v. The United Kingdom - 30562/04 [2008] ECHR 1581, 4 December 2008). 10 I am not suggesting that a global sovereign is desirable. On the contrary, the primary goal of politics must be the destruction of all sovereignty, which is the biggest unresolved problem of modernity. 11 Sovereignty was the (justificiable) goal of liberation struggles buttressed assertion of the right to selfdetermination. From this perspective it is an object of desire with a sting in its tail, the Catch-22 of modernity.

ers, at the cost of shattering the edifice of International Rights, in the name of a new right to humanitarian interference - which ultimately boiled down to the right to invasion (Rancire 2004:297-98). Human rights discourse urgently needs to overcome the inclusive exclusivity of law and sovereignty without succumbing to a false universality that makes the demand: Become like me and I will respect your difference (Badiou 2001:25).12 As Badiou he tartly puts it, The refrain of human rights is nothing other than the ideology of modern liberal capitalism: We won't massacre you, we won't torture you in caves, so keep quiet and worship the golden calf. As for those who don't want to worship it, or who don't believe in our superiority, there's always the American army and its European minions to make them be quiet. 13 If human rights cannot achieve this, they risk becoming an opiate of the multitude without narcotic effects, a substitute for a progressive politics that embraces the concrete reality of existing in a locality that is constructed in relation to the global. 14 For Hannah Arendt, the aporia of human rights arises from the fact that the victims of sovereign excrescence found that the rights they supposedly had by virtue of their humanity found themselves to be naked. 15 Denied citizenship as members of a discrete political community, they found themselves to be nothing but human. For Arendt, the figure of the refugee symbolises not merely the loss of the rights associated with citizenship, but the conundrum that the polis is the political space necessary for her call for a right to rights to be heard and to be capable of acting in a public space to be realised. 16 For Agamben, the refugee symbolises the extension of a permanent state of exception: [G]iven the by now unstoppable decline of the nation-state and the general corrosion of traditional political-juridico categories, the refugee is perhaps the only thinkable figure for the people of our time and the only one in which one may see today at least until the process of dissolution of the nation-state and of its sovereignty has achieved full completion the forms and limits of a coming political community (Agamben 2000:16). Replete with universal human rights that cannot be used, the exile, deportee, asylum seeker and refugee are excluded from sovereignty, race, nation and citizenship and cast into a legal void.17 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 1958:297). The sovereignty-territory-citizenship nexus sets a fateful dimension that threatens the cohe-

12

There can be no general ethic because there is no abstract subject, who would adopt it as his shield (Badiou 2001:40). On universality, inclusivity, difference and their conception of the European Union of a new empire of cosmopolitan sovereignty, see Beck and Grande, 2007. 13 Interview with Christoph Cox and Molly Whalen, On Evil: An Interview with Alain Badiou, Cabinet magazine online, Issue 5, Winter 2001-02: http://www.cabinetmagazine.org/issues/5/alainba diou.php. 14 See Santos (2002a:177 ff.) discussion on localized globalisms and globalized localisms. 15 This idea of naked life appears to have influenced Agambens conception of bare life, but see also Walter Benjamin, 2004. 16 See Baxi (2006:132ff). See also Patricia Tuitt who, whilst also dealing with the refugee, takes the figure of the slave as her protagonist, arguing that the slave and those constructed in the figure of the slave are both necessary to the law and alienated from the law (2004:xi). 17 And, on a different but no less profound axis, gender (see MacKinnon, 2006).

rence of human rights in a world in which the spaces of sovereignty and diaspora are paradoxically everywhere and nowhere. 18 Arendts solution is isonomy, a state in which one is neither ruler nor ruled, but Agambens analysis of the role of law in sovereign rationality suggests that her idea of a post-sovereign polis merely displaces the problem. He calls into question the very possibility of politics (and, therefore, of the politics of human rights) so long as sovereignty subsists, so that the coming community in which the law is repatriated to itself can emerge only in bloodless, messianic catharsis of divine violence. Sovereignty, Bare Life and Death Apart from sovereignty, the only other power capable of defying history is patriarchy.19 They have been exercised in all cultures, religions and modes of production. This may tell us a great deal about them, but it also tells us nothing. How then may we account for the uniqueness of sovereignty as a form of power? The answer seems to me to lie in the one thing that it has the capacity to require in contradistinction to all other forms of power, namely death. Legal theory has proved singularly incapable of adequately describing or accounting for sovereignty. Principles such as formal equality (which has always been merely that, i.e. formal), or non-interference in internal affairs and absolute jurisdictional supremacy (which have rarely existed) beg more questions than they answer. Max Webers argument that sovereignty is based on monopolies of law and legitimate violence is more profound and thus more promising, but the commonplace conception that sovereign power is declining under capitalist globalisation arises most specifically from the loss of the former. Stripped to its minimum, what remains of sovereign power unless, along with Beck and Grande (2007), we completely redefine the concept and its meaning is the monopoly of legitimate violence, and violence takes its meaning, not least in law, from its ultimate form: death. 20 And it is here that Agamben must be amended if his wish to correct Foucaults problematic separation of biopolitics and sovereignty is to be realised. While biopolitics must by definition be concerned with living bodies, sovereignty has historically been contingent upon the right to kill. By defining the originary activity of sovereignty as the production of bare life, Agamben seeks to square the circle. This is logical, because the biopoliticised body is the sine qua non of sovereignty, the subject-object without which it cannot reproduce itself. 21 Because sovereignty is always incipiently thanatopolitics, which always carries the danger of sovereign suicide, sovereignty must abjure death but only up to a point. The problem with Agambens construction is, perhaps, that it cedes too much to biopolitics. Like a Blakean antin-

18

Hardt and Negris formulation of empire is provocatively problematic but has the virtue of highlighting the chimerical quality of sovereignty under capitalist globalisation. For critiques of Empire see Passavant and Dean (2004) and Balakrishnan (2003). 19 Unless we accept Agambens assertion that sovereignty has always been a form of biopolitics, at least in the West, in which case the latter must also be regarded as similarly ahistorical. Space precludes an extended analysis of patriarchy. It can be argued that bare life is produced as much by economic exploitation as it is by sovereignty, something that Agamben does not explore. 20 Only the sovereign can require or condone death: proactively in the form of war and the death penalty, passively in the form of abortion and euthanasia which are authorised as exceptions to the exception. The logic of the theory of the exception means that so long as sovereignty subsists, the death penalty can never be abolished and its use merely suspended. 21 At the very least, biopolitics in Agambens conception is very far from Foucaults construction of it as a positive power to make live.

omy, life can only be comprehended in terms of what it is not, in terms of death. 22 For this reason, bare life itself a controversial concept is only comprehensible in relation to death, sovereigntys ultimate sanction and the reason why its monopoly on legitimate violence is so jealously guarded. Pour encourager les autres. Sovereignty is sustained by the unique capacity, not to deploy biopolitics in order to make live, but rather to allow a life just short of death a life, at the risk of repetition, comprehensible only in relation to the power to extinguish and negate it. This is the real import of homo sacer, who can be killed with impunity but cannot sacrificed. And this is the real meaning of the sacredness of life in human rights discourse. When an individual kills it is murder, when the sovereign state kills it may be regarded as legitimate.23 It is this prerogative above all that sovereignty must cling to lest it be reduced to the status of any other form of power - in Foucauldian terms to a mere technique of governmentality. Death must always be at hand even if, or precisely because, it is not always required and bare life can never be separated from the power to end it. The irony Western sovereignty arises from the fact that the social contract was designed to preserving life in the war of all against all. Three possibilities were possible when the Hobbesian covenant, the original exception, was struck. First, law precedes and shapes the form of sovereignty, which is thus a clearly juridical concept. This is natural law myth that underpins the liberal conception of the rule of law. Second, sovereignty precedes, shapes and guarantees law and rights. Third, sovereignty and law are coeval. It is the alternatives which make the exception possible because either sovereignty is a form of pure power that can suspend the legal order in part or in its entirety in the moment of exception precisely because it stands outside the law or, in the third possibility, it is impossible to demarcate the line between the two in a liminal zone of indistinction in which sovereignty hovers between pure power and a nebulous if not illogical capacity to suspend the law by and through the law. Hobbes understood that the bargain thus struck would always potentially have to be enforced at the expense of life; indeed, it was this insight that so powerfully influenced Schmitt and in this momentous Event that human rights became necessary and led Locke and Rousseau to begin exploring the definitive issue of political modernity: how to deal with the sovereigns capacity to kill? Natural rights were too contaminated by religion to be able to adequately confront sovereignty, and a transition was required to a different but equally problematic form of transcendence: human rights. Esposito argues that hopes of an extension of the logic of the law to the entire arena of international relations arises from a perpetuation of
the old analytic framework derived from the Hobbesian matrix, perhaps with a sprinkling of Kantian cosmopolitanism thrown in for good measure, only to discover that such a model no longer works [and] reflects almost nothing of current reality, let alone is it able to provide effective tools that might prefigure its transformation. This isnt only because of the incongruence of continuing to contrast possible options (such as those related to individual rights and sovereign power) that have from the start been reciprocally functional in the development
22

The physical and psychological dimensions of death are inseparable and bare life is therefore comprehensible only through the (limited) human capacity to comprehend the cessation of life itself. 23 Defences to murder in criminal law are exceptions that prove the rule. The UN Security Council might seem to be an exception, but authorisation of the use of force is clearly contingent on sovereignty.

of each from the instant that rights are not given without a sovereign power (be it national or imperial) that demands they be respected. Similarly, there doesnt exist a sovereignty that lacks some kind of juridical foundation. Its not by accident that the stunning deployment of sovereign power on the part of the American imperial state is justified precisely in the name of human rights. (Esposito 2008:148-49).

As Schmitts work demonstrates, any juridical foundation that sovereignty may possess is a fiction constructed by sovereignty itself because pure, unadulterated arbitrary power is difficult to legitimise. It is precisely when law and fact are blurred to the point of indistinction that the issue of death becomes relevant and, in modernity, law is contaminated by sovereignty. Sovereign Thanatopolitics And it is this tension, this attempt to cloak sovereignty in the guise of law that ultimately preoccupies both Agamben and Esposito. How is it possible that a power of life is exercised against life itself? Why does a power that functions by insuring, protecting and augmenting life express such a potential for death? Why does biopolitics continually threaten to be reversed into thanatopolitics? (Esposito 2008:39). Campbell (2008:viii) argues that Espositos view resemble a synthesis of Agambens bleakly negative view of biopolitics and Hardt and Negris radically affirmative conception. Esposito falls into the former group, albeit for different reasons to Hardt and Negri. For him, the problem is not sovereignty per se but a tendency inherent in biopolitics towards the kind of thanatopolitics taken to its extreme by the Nazis. In contrast to Foucault, for whom biopolitics is a means of making live, Esposito argues that the category from which we must proceed theoretically is life itself rather than the body and that thanatopolitics therefore involves immunising the nation or volk against alien organisms that contaminate it. Esposito argues that having defined the terms of an alternating hermeneutic between two opposing theses, Foucault never opts decisively for one or the other. On the one hand, he hypothesizes something like a return to the sovereign paradigm within a biopolitical horizon On the other hand, [he] introduces the opposing hypothesis, which says that it was precisely the final disappearance of the sovereign paradigm that liberates a vital force so dense as to overflow and be turned against itself (Esposito 2008:41). The idea of immunisation - a kind of Hegelian negation, but different and more - is at the centre of Espositos theory of biopolitics. Campbell (2008:viii) views Esposito as arguing for the modern origin of biopolitics in the immunizing of sovereignty, property and liberty Immunity is the link from between community and biopolitics. It is the introjection of negativity or immunity that [forms] the basis of Espositos reading of modern biopolitics [and] the modern subject who enjoys civil and political rights is itself an attempt to attain immunity from the contagion of the possibility of community. Such an attempt to immunize the individual from what is common ends up putting at risk the community as immunity turn upon itself and its constituent element (Campbell 2008:xi). Modernity does not begin with Hobbes, as Foucault argued, but rather when it first becomes possible to theorize a relation between the communitarian munus and the institution of sovereign power that acts to protect, or better to immunize, the community from a threatened return to conflict (Campbell 2008:xii). The sovereign 10

immunises the community from its own implicit excesses; the community immunises itself by instituting sovereign power. In other words, immunity is coeval with the contract that institutes the sovereign. The moment when the immunitary aporia of community is recognized as the strategic problem for nascent European nation-states signals the advent of modernity because it is then that sovereign power is linked theoretically to communal self-preservation and self-negation (Campbell 2008:xii). Sovereignty thus appears as a form of immunisation in which biopolitics, up to and including thanatopolitics, acts as an antigen. Esposito therefore disputes Foucaults conception of governmentality, which is predicated on biopower. Foucault oscillates between sovereignty and governmentality because he fails to fully decline the immunitary aspects of both. If Agambens aim is a politics that breaks free of the trap of sovereign rationality, Espositos is a radical community politics beyond immunity. The problem is that Esposito resurrects the antinomy in a different form without resolving it in the way that Agamben seeks to do. Although he proceeds from the concept of life rather than sovereignty, arguing that the norm including all juridical norms and concepts like sovereignty should be subordinated to an understanding of ze as the basis of bios, he does not offer a solution to the normativity postulated by sovereignty. In other words, sovereigntys capacity to normatively decide life remains problematically in play; it is one thing to call for a reconceptualised politics but quite another to achieve it without tackling sovereignty head on. Sovereignty is the unresolved problem of Western modernity and all that it implies the colonialism that metamorphosed into the imperialism which now seeks to dress itself in the clothes of humanitarian interventionism. Indeed, there is no possibility of escaping this civilisation of otherness unless and until we comprehend, confront and destroy the sovereign power to kill. As iek (2005) observes, the pursuit of human rights has always run the risk of reproducing power. What is required now is not so much a politics of human rights so much as a politics for human rights, a politics in which law is understood both as the outcome and an impediment, as a contradictory form of power/disempowerment, as a limitation that must be overcome rather than a given of liberal legalism. At present, the danger is that human rights both in the bastardised form appropriated by global capitalism and the coalition of the willing or in a manner more consistent with the UDHR conception - come to be regarded as a substitute for a politics of meaningful emancipation.24

24

See Baxis (2006) distinction between modern and contemporary human rights.

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Bibliography Agamben, Giorgio (1998), Homo Sacer: Sovereign Power and Bare Life (Stanford University Press: Stanford, California). ------- (2000), Means Without End: Notes on Politics (University of Minnesota Press: Minneapolis and London). ------- (2005), State of Exception (The University of Chicago Press: Chicago and London). Anghie, Antony (2004), Imperialism, Sovereignty and the Making of International Law (Cambridge University Press: Cambridge). Arendt, Hannah (1958) The Origins of Totalitarianism (Meridian: New York). Badiou, Alain (2001), Ethics (Verso: New York). ------- (2001-02), On Evil: An Interview with Alain Badiou by Christopher Cox and Molly Whalen, Cabinet magazine online, Issue 5, Winter 2001-02. ------- (2003), Infinite Thought: Truth and the Return to Philosophy (Continuum Books: London). ------- (2005), Metapolitics (Verso Books: London). Balakrishnan, Gopal (ed.) (2003), Debating Empire (Verso: London and New York). Baxi, Upendra (2005), The War on Terror and the War of Terror: Nomadic Multitudes, Aggressive Incumbents, and the New International Law, 43 Osgoode Law Journal 7. ------- (2006), The Future of Human Rights (2nd Ed.) (Oxford University Press: Delhi). ------- (2006a), Amartya Sen and Human Rights, paper presented at Human Rights and Global Justice Conference, University of Warwick, 29-31 March 2006; http://www2.warwick.ac.uk/fac/soc/law/ events/past/2006/rights and justice/. Beck, Ulrich (2005), Power in the Global Age: A new global political economy (Polity Press: Cambridge). Beck, Ulrich and Grande, Edward (2007), Cosmopolitan Europe (Polity Press: Cambridge). Benjamin, Walter (2004), Critique of Violence in Bullock, Marcus and Jennings, Michael W. (eds.) Walter Benjamin: Selected Writings, Volume 1, 1913-1926 (Harvard University Press: Cambridge, Massachusetts). Bentham, Jeremy (1843), Anarchical Fallacies; Being an Examination of the Rights Issued during the French Revolution (1792) republished in Bowring, J. (ed.), The Works of Jeremy Bentham, Vol. II (William Tait: Edinburgh). Butler, Judith (2004), Precarious Life: The Powers of Mourning and Violence (Verso: London and New York). Campbell, Timothy (2008), Translators Introduction to Esposito, Roberto (2008), Bos: Biopolitics and Philosophy (University of Minnesota Press: Minneapolis). Chandler, David (2002), From Kosovo to Kabul: Human Rights and International Intervention (Pluto Press: London). Chimni, B. S. (2004), International Institutions Today: An Imperial Global State in the Making, 15 European Journal of International Law 1. Dean, Mitchell (1999), Governmentality: Power and Rule in Modern Society (Sage Publications: London). de Torrente, Nicolas (2004), Humanitarian Action Under Attack: Reflections on the Iraq War, 17 Harvard Human Rights Journal 1.

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Douzinas, Costas (2000), The End of Human Rights (Hart Publishing: Oxford). Esposito, Roberto (2008), Bos: Biopolitics and Philosophy (University of Minnesota Press: Minneapolis). Falk, Richard (2008), The power of rights and the rights of power, Ethics and Global Politics (http:journals.sfu.ca/coactions/index.php/egp/rt/printerFriendly /1815/1783). Fine, Robert (2003), Taking the Ism out of Cosmopolitanism: An Essay in Reconstruction, European Journal of Social Theory 6(4): 451-470. Fitzpatrick, Peter (1992) The Mythology of Modern Law (Routledge: London). ------- (2001) Modernism and the Grounds of Law (Cambridge University Press: Cambridge). Foucault, Michel (1976), The History of Sexuality: An Introduction, Vol. 1 (Penguin Books: London). ------- (1991), Governmentality in Burchell, G., Gordon, C. and Miller, P. (eds.), The Foucault Effect: Studies in Governmentality (Harvester Wheatsheaf: London). ------- (2003),Society Must Be Defended: Lectures at the College de France, 197576, eds. Mauro Bertani and Allesandro Fontana, trans. David Macey (Picador: New York). Golder, Ben and Fitzpatrick, Peter (2008), Foucaults Law (Routledge-Cavendish: London). Habermas, Jurgen (1996), Between Facts and Norms: Contributions Towards a Discourse Theory of Ethics (The MIT Press: Cambridge, Massachusetts). Hardt, Michael and Negri, Antonio (2000), Empire (Harvard University Press: Cambridge, Massachusetts). ------- (2004), Multitude: War and Democracy in the Age of Empire (The Penguin Press: New York). Kantorowicz, Ernst (1957) The Kings Two Bodies (Princeton University Press: Princeton, New Jersey). Kalyvas, Andreas (2005), Anagrammatics of Violence: The Benjaminian Ground of Homo Sacer in Norris, Andrew (ed.), Politics, Metaphysics and Death: Essays on Giorgio Agambens Homo Sacer (Duke University Press: Durham and London). Krasner, Stephen (1999), Sovereignty: Organized Hyprocrisy (Princeton University Press: Princeton, New Jersey). Laffey, Mark and Weldes, Jutta (2004), Representing the International: Sovereignty and Modernity?, in Passavant, Paul. A. and Dean, Jodi (eds.), Empires New Clothes: Reading Hardt and Negri (Routledge: London and New York). MacKinnon, Catherine (2006), Are Women Human? (Harvard University Press: Cambridge, Massachusetts). Muchlinski, Peter (2001), Human rights and multinationals: is there a problem?, International Affairs 77:1. Mutua, Makau (2002), Terrorism and Human Rights: Power, Culture, and Subordination, 8 Buffalo Human Rights Law Review 1. Pierce, Steven and Rao, Anapuma (eds.) (2006), Discipline and the Other Body: Correction, Corporeality, Colonialism (Duke University Press: Durham, North Carolina and London). Rancire, Jaques (2004), The South Atlantic Quarterly 103:2/3. Sands, Philippe (2006), Lawless World: Making and Breaking Global Rules (Penguin Books: London).

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Santos, Boaventura de Sousa (2002), Toward a Multicultural Conception of Human Rights, in Hernandez-Truyol, Berta Esperanza (ed.), Moral Imperialism: A Critical Anthology (New York University Press: New York). ------- (2002a), Toward a New Legal Common Sense (Butterworths: London). Santos, Boaventura de Sousa and Rodrguez-Garavito, Csar A. (eds.) (2005), Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge University Press: Cambridge). Sassen, Saskia (1991), The Global City: New York, London, Tokyo (Princeton University Press: Princeton, New Jersey). ------- (1996), Losing Control? Sovereignty in an Age of Globalization (Columbia University Press: New York). ------- (1998), Globalization and Its Discontents (The New Press: New York). ------- (2004) The State and Globalization: Denationalized Participation, 25 Michigan Journal of International Law 1141. Schmitt, Carl (1988), Political Theology (The MIT Press: Cambridge, Massachusetts and London). Sen, Amartya (1999), Development as Freedom (Oxford University Press: Oxford). ------- (2004), Elements of a Theory of Human Rights, Philosophy and Public Affairs 32. Slaughter, Anne-Marie (2004), A New World Order (Princeton University Press: Princeton, New Jersey and Oxford). Tuitt, Patricia (2004), Race, Law, Resistance (Glasshouse Press: London). Walker, Peter (2004), Between Cooptation and Irrelevance: Humanitarian Action After Iraq, 17 Journal of Refugee Studies 260. Waldron, Jeremy (2005) Torture and Positive Law: Jurisprudence for the White House, 105 Columbia Law Review 1681. iek, Slavoj (2005), Against Human Rights, New Left Review 34, July-August 2005.

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