The Omnibus Homo Sacer Read online

  ates and guarantees the situation as a whole in its totality. He has the monopoly

  over the final decision. Therein consists the essence of State sovereignty, which

  17

  18

  HOMO SACER I

  must therefore be properly juridically defined not as the monopoly to sanction

  or to rule but as the monopoly to decide, where the word “monopoly” is used

  in a general sense that is still to be developed. The decision reveals the essence

  of State authority most clearly. Here the decision must be distinguished from

  the juridical regulation, and (to formulate it paradoxically) authority proves

  itself not to need law to create law. . . . The exception is more interesting than

  the regular case. The latter proves nothing; the exception proves everything. The

  exception does not only confirm the rule; the rule as such lives off the exception

  alone. A Protestant theologian who demonstrated the vital intensity of which

  theological reflection was still capable in the nineteenth century said: “The ex-

  ception explains the general and itself. And when one really wants to study the

  general, one need only look around for a real exception. It brings everything to

  light more clearly than the general itself. After a while, one becomes disgusted

  with the endless talk about the general—there are exceptions. If they cannot be

  explained, then neither can the general be explained. Usually the difficulty is

  not noticed, since the general is thought about not with passion but only with

  comfortable superficiality. The exception, on the other hand, thinks the general

  with intense passion.” ( Politische Theologie, pp. 19–22)

  It is not by chance that in defining the exception Schmitt refers to the work

  of a theologian (who is none other than Søren Kierkegaard). Giambattista Vico

  had, to be sure, affirmed the superiority of the exception, which he called “the

  ultimate configuration of facts,” over positive law in a way which was not so

  dissimilar: “An esteemed jurist is, therefore, not someone who, with the help of

  a good memory, masters positive law [or the general complex of laws], but rather

  someone who, with sharp judgment, knows how to look into cases and see the

  ultimate circumstances of facts that merit equitable consideration and excep-

  tions from general rules” ( De antiquissima, chap. 2). Yet nowhere in the realm of the juridical sciences can one find a theory that grants such a high position

  to the exception. For what is at issue in the sovereign exception is, according to

  Schmitt, the very condition of possibility of juridical rule and, along with it, the

  very meaning of State authority. Through the state of exception, the sovereign

  “creates and guaran tees the situation’’ that the law needs for its own validity.

  But what is this “situation,” what is its structure, such that it consists in nothing

  other than the suspension of the rule?

  א The Vichian opposition between positive law ( ius theticum) and exception well expresses the particular status of the exception. The exception is an element in law that

  transcends positive law in the form of its suspension. The exception is to positive law what negative theology is to positive theology. While the latter affirms and predicates determinate qualities of God, negative (or mystical) theology, with its “neither . . . nor . . . ,” negates

  HOMO SACER

  19

  and suspends the attribution to God of any predicate whatsoever. Yet negative theology

  is not outside theology and can actually be shown to function as the principle grounding

  the possibility in general of anything like a theology. Only because it has been negatively presupposed as what subsists outside any possible predicate can divinity become the subject of a predication. Analogously, only because its validity is suspended in the state of exception can positive law define the normal case as the realm of its own validity.

  1.2. The exception is a kind of exclusion. What is excluded from the general

  rule is an individual case. But the most proper characteristic of the exception

  is that what is excluded in it is not, on account of being excluded, absolutely

  without relation to the rule. On the contrary, what is excluded in the exception

  maintains itself in relation to the rule in the form of the rule’s suspension. The

  rule applies to the exception in no longer applying, in withdrawing from it. The state of exception is thus not the chaos that precedes order but rather the situation

  that results from its suspension. In this sense, the exception is truly, according to

  its etymological root, taken outside ( ex-capere), and not simply excluded.

  It has often been observed that the juridico-political order has the structure

  of an inclusion of what is simultaneously pushed outside. Gilles Deleuze and

  Félix Guattari were thus able to write, “Sovereignty only rules over what it is

  capable of interiorizing” (Deleuze and Guattari, Mille plateaux, p. 445); and, concerning the “great confinement” described by Foucault in his Madness and

  Civilization, Maurice Blanchot spoke of society’s attempt to “confine the outside” ( enfermer le dehors), that is, to constitute it in an “interiority of expectation or of exception.” Confronted with an excess, the system interiorizes what

  exceeds it through an interdiction and in this way “designates itself as exterior

  to itself” ( L’entretien infini, p. 292). The exception that defines the structure of sovereignty is, however, even more complex. Here what is outside is included

  not simply by means of an interdiction or an internment, but rather by means

  of the suspension of the juridical order’s validity —by letting the juridical order,

  that is, withdraw from the exception and abandon it. The exception does not

  subtract itself from the rule; rather, the rule, suspending itself, gives rise to the

  exception and, maintaining itself in relation to the exception, first constitutes

  itself as a rule. The particular “force” of law consists in this capacity of law to

  maintain itself in relation to an exteriority. We shall give the name relation of

  exception to the extreme form of relation by which something is included solely

  through its exclusion.

  The situation created in the exception has the peculiar characteristic that

  it cannot be defined either as a situation of fact or as a situation of right, but

  instead institutes a paradoxical threshold of indistinction between the two. It is

  20

  HOMO SACER I

  not a fact, since it is only created through the suspension of the rule. But for the

  same reason, it is not even a juridical case in point, even if it opens the possibil-

  ity of the force of law. This is the ultimate meaning of the paradox that Schmitt

  formulates when he writes that the sovereign decision “proves itself not to need

  law to create law.” What is at issue in the sovereign exception is not so much

  the control or neutralization of an excess as the creation and definition of the

  very space in which the juridico-political order can have validity. In this sense,

  the sovereign exception is the fundamental localization ( Ortung), which does not limit itself to distinguishing what is inside from what is outside but instead

  traces a threshold (the state of exception) between the two, on the basis of which

  outside and inside, the normal situation and chaos, enter into those complex

  topological relations t
hat make the validity of the juridical order possible.

  The “ordering of space” that is, according to Schmitt, constitu tive of the

  sovereign nomos is therefore not only a “taking of land” ( Landesnahme)— the determination of a juridical and a territorial ordering (of an Ordnung and an

  Ortung)—but above all a “taking of the outside,” an exception ( Ausnahme).

  א Since “there is no rule that is applicable to chaos,” chaos must first be included in

  the juridical order through the creation of a zone of indistinction between outside and

  inside, chaos and the normal situation—the state of exception. To refer to something, a

  rule must both presuppose and yet still establish a relation with what is outside relation (the nonrelational). The relation of exception thus simply expresses the originary formal

  structure of the juridical relation. In this sense, the sovereign decision on the exception is the originary juridico-political structure on the basis of which what is included in the juridical order and what is excluded from it acquire their meaning. In its archetypal form, the state of exception is therefore the principle of every juridical localization, since only the state of exception opens the space in which the determination of a certain juridical

  order and a particular territory first becomes possible. As such, the state of exception itself is thus essentially unlocalizable (even if definite spatiotemporal limits can be assigned to it from time to time).

  The link between localization ( Ortung) and ordering ( Ordnung) con stitutive of the

  “nomos of the earth” (Schmitt, Das Nomos, p. 48) is therefore even more complex than Schmitt maintains and, at its center, contains a fundamental ambiguity, an unlocalizable

  zone of indistinction or exception that, in the last analysis, necessarily acts against it as a principle of its infinite dislocation. One of the theses of the present inquiry is that in our age, the state of exception comes more and more to the foreground as the fundamental

  political structure and ultimately begins to become the rule. When our age tried to grant

  the unlocalizable a permanent and visible localization, the result was the concentration

  camp. The camp —and not the prison—is the space that corresponds to this originary

  structure of the nomos. This is shown, among other things, by the fact that while prison law only constitutes a particular sphere of penal law and is not outside the normal order,

  HOMO SACER

  21

  the juridical constellation that guides the camp is (as we shall see) martial law and the

  state of siege. This is why it is not possible to inscribe the analysis of the camp in the trail opened by the works of Foucault, from Madness and Civilization to Discipline and Punish. As the absolute space of exception, the camp is topologically different from a simple space of confinement. And it is this space of exception, in which the link between

  localization and ordering is definitively broken, that has determined the crisis of the old

  “nomos of the earth.”

  1.3. The validity of a juridical rule does not coincide with its application to

  the individual case in, for example, a trial or an executive act. On the contrary,

  the rule must, precisely insofar as it is general, be valid independent of the in-

  dividual case. Here the sphere of law shows its essential proximity to that of

  language. Just as in an occurrence of actual speech, a word acquires its ability

  to denote a segment of reality only insofar as it is also meaningful in its own

  not-denoting (that is, as langue as opposed to parole, as a term in its mere lexical consistency, independent of its concrete use in discourse), so the rule can refer to

  the individual case only because it is in force, in the sovereign exception, as pure

  potentiality in the suspension of every actual reference. And just as language pre-

  supposes the nonlinguistic as that with which it must maintain itself in a virtual

  relation (in the form of a langue or, more precisely, a grammatical game, that

  is, in the form of a discourse whose actual denotation is maintained in infinite

  suspension) so that it may later denote it in actual speech, so the law presupposes

  the nonjuridical (for example, mere violence in the form of the state of nature)

  as that with which it maintains itself in a potential relation in the state of excep-

  tion. The sovereign exception (as zone of indistinction between nature and right) is

  the presupposition of the juridical reference in the form of its suspension. Inscribed as a presupposed exception in every rule that orders or forbids something (for

  example, in the rule that forbids homicide) is the pure and unsanctionable figure

  of the offense that, in the normal case, brings about the rule’s own transgression

  (in the same example, the killing of a man not as natural violence but as sover-

  eign violence in the state of exception).

  א Hegel was the first to truly understand the presuppositional structure thanks to

  which language is at once outside and inside itself and the immediate (the nonlinguistic)

  reveals itself to be nothing but a presupposition of language. “Language,” he wrote in the Phenomenology of Spirit, “is the perfect element in which interiority is as external as exteriority is internal” (see Phänomenologie des Geistes, pp. 527–29). We have seen that only the sovereign decision on the state of exception opens the space in which it is possible to trace borders between inside and outside and in which determinate rules can be assigned

  to determinate territories. In exactly the same way, only language as the pure potentiality

  22

  HOMO SACER I

  to signify, withdrawing itself from every concrete instance of speech, divides the linguistic from the nonlinguistic and allows for the opening of areas of meaningful speech in

  which certain terms correspond to certain denotations. Language is the sovereign who,

  in a permanent state of exception, declares that there is nothing outside language and

  that language is always beyond itself. The particular structure of law has its foundation

  in this presuppositional structure of human language. It expresses the bond of inclusive

  exclusion to which a thing is subject because of the fact of being in language, of being

  named. To speak [ dire] is, in this sense, always to “speak the law,” ius dicere.

  1.4. From this perspective, the exception is situated in a symmetrical posi-

  tion with respect to the example, with which it forms a system. Exception and

  example constitute the two modes by which a set tries to found and maintain

  its own coherence. But while the exception is, as we saw, an inclusive exclusion

  (which thus serves to include what is excluded), the example instead functions

  as an exclusive inclusion. Take the case of the grammatical example (Milner,

  “ L’exemple,” p. 176): the paradox here is that a single utterance in no way dis-

  tinguished from others of its kind is isolated from them precisely insofar as it

  belongs to them. If the syntagm “I love you” is uttered as an example of a perfor-

  mative speech act, then this syntagm both cannot be understood as in a normal

  context and yet still must be treated as a real utterance in order for it to be taken

  as an example. What the example shows is its belonging to a class, but for this

  very reason the example steps out of its class in the very moment in which it ex-

  hibits and delimits it (in the case of a linguistic syntagm, the example thus shows

  its own signifying and, in this way, suspends its own meaning). If one now asks

  if the rule applies to the example, the answer
is not easy, since the rule applies to

  the example only as to a normal case and obviously not as to an example. The

  example is thus excluded from the normal case not because it does not belong to

  it but, on the contrary, because it exhibits its own belonging to it. The example

  is truly a paradigm in the etymological sense: it is what is “shown beside,” and a class can contain everything except its own paradigm.

  The mechanism of the exception is different. While the example is excluded

  from the set insofar as it belongs to it, the exception is included in the nor-

  mal case precisely because it does not belong to it. And just as belonging to a

  class can be shown only by an example—that is, outside of the class itself—so

  non-belonging can be shown only at the center of the class, by an exception. In

  every case (as is shown by the dispute between anomalists and analogists among

  the ancient grammarians), exception and example are correlative concepts that

  are ultimately indistinguishable and that come into play every time the very

  sense of the belonging and commonality of individuals is to be defined. In every

  HOMO SACER

  23

  logical system, just as in every social system, the relation between outside and

  inside, strangeness and intimacy, is this complicated.

  א The exceptio of Roman court law well shows this particular structure of the exception. The exceptio is an instrument of the defendant’s defense that, in the case of a judgment, functions to neutralize the conclusiveness of the grounds proffered by the plaintiff and thus to render the normal application of the ius civile impossible. The Romans saw it as a form of exclusion directed at the application of the ius civile ( Digesta, 44. 1. 2; Ulpianus, 74: Exceptio dicta est quasi quaedam exclusio, quae opponi actioni solet ad excludendum id, quod in intentionem condemnationemve deductum est, “It is said to be an exception because it is almost a kind of exclusion, a kind of exclusion that is usually opposed to the trial in order to exclude what was argued in the intentio and the condemnatio”). In this sense, the exceptio is not absolutely outside the law, but rather shows a contrast between two juridical demands, a contrast that in Roman law refers back to the opposition between