Above the Law, Outside the Law: Giorgio Agamben on the U.S. Presidency, Refugee Crises, & Impeachment

Giorgio Agamben’s Homo Sacer: Sovereign Power and Bare Life , translated by Daniel Heller-Roazen (Stanford, CA: Stanford University Press, 1998) has become a classic of continental political philosophy. Agamben builds an elaborate superstructure around the elemental concept of homo sacer. In Roman tradition (as interpreted by Agamben, that is) homo sacer referred to an outlaw banned from society, devoted (sacer) to the gods but nevertheless protected from the ritual human sacrifice practiced in ancient European societies (p.12, 47) (evidence of which keeps emerging from Danish bogs). While the folks who became “bog bodies” were carefully protected until the moment of ritual murder, the homo sacer experienced the precise opposite: he “could be killed” (p.12) by “anyone” (p. 47) with “impunity” (p. 47), “yet not sacrificed” (p.12). This outlaw is sacred (sacer) in the old sense of “devoted” or “set apart,” not in the Frazer- or Freud-inspired term “taboo,” nor yet the medieval-Christian idea of a holy relic. Agamben refers the reader to one [of several] ancient Hebrew meanings of “sacred,” namely that in which certain Canaanite cities were designated for razing and massacre (Joshua 6:17 – 8:28 and I Samuel 15:1-35 contain particularly grisly examples.) Weird, I know.

Despite the book’s grotesque beginnings, a persistent reader will be rewarded for slogging through hedges of quoted Latin and transcribed Greek to follow Agamben’s archaeology of the ancient homo sacer concept. Agamben proceeds via an analysis of homo sacer (p.11) as an illustration of the exposure of “bare life” (p.11-12) via the “state of exception” (p.13) to illustrate the vulnerabilities of contemporary democracies.

Agamben frames his work as an extension of Michel Foucault’s archaeological work on the human condition. Foucault once remarked: “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 calls his existence as a living being into question” (p. 72). As Agamben sees things, Foucault understood the biological aspect of humankind, but in his oeuvre had failed to apply this insight beyond schools, prisons, and asylums to the extreme case of totalitarian government; Agamben’s other reference point, Hannah Arendt, had grasped totalitarianism but failed to grapple with biology (p. 71). For Agamben, such an archaeology must be carried out if totalitarianism — or, crucially, democracy — is to be rightly understood (p. 71-73). The ritual homo sacer tendency has transcended its origins in primitive Roman law, and its traces echo throughout the Western political tradition.

(Agamben’s style, unfortunately, is anything but straightforward, but he occasionally ties some loose ends together for moments of clarity.)

“In the case of homo sacer,” as Agamben explains his titular term, “a person is simply set outside human jurisdiction without being brought into the realm of divine law” (p. 52). In Aristotelian terms, Agamben says, this is to  strip away the “political life” — ζῷον πoλιτικόν, or “political animal” — leaving only the βῐ́ος, or biological life, of the individual (p.11-13). This is why we refer to certain rhetoric or tactics as “dehumanizing.” Excepted from religion and law, these ancient Roman outlaws known as homines sacri lost their “political life,” leaving them with only their “bare life” (p. 11-13). Because ahomo sacer no longer shared in the life of the state, such an individual would be exempt from the possibility of being sacrificed; but they were also outside the state’s protection against capricious killing.

To illustrate the concept in terms that may be more familiar, homo sacer is an unfortunate closer to Antigone in Euripides’ tragedy than to Jephthah’s daughter in the  the Old Testament (Judges 11:34-40). Jephthah’s innocent daughter dies as sacrificial victim, with an elaborate ritual and cult established in her memory. Antigone’s death occurs in strange way; Creon does not actively kill her, but he banishes her to a cave in which her death is inevitable. What’s more, her killing takes place not as an elaborate sacrifice, or even a formal execution, but as an indirect (yet judicially enforced) murder. Euripides takes pains to emphasize the lack of ceremony with which she is dragged to her tomb. It is left to Antigone to frame her death in terms of a marriage to cthonic deities; the authoritarian Creon makes no effort to dedicate this young life to the gods. The analogy breaks down in that in Euripides’ play, the polis archon sentences the girl in his capacity as law-giver, whereas in Agamben’s Roman metaphor the homo sacer becomes exposed to extrajudicial death after being set outside the law (outlaw).  No gods can intervene, because this extra-political person is none of their business.

How does this arcane homo sacer concept apply to Western society after the theoretical interventions of Montesquieu, Hobbes, and especially Locke? Agamben thinks Lockean Enlightenment philosophy (the matrix of modern republican political theory) defined political life narrowly in terms of the social contract and the state. Deprived of these structures, the harrowing experience of “bare life” still describes the stateless person trapped between the rights-giving legal entities called nations. True, Agamben notes, the U.N. Declaration of Human Rights does attempt to re-assert natural law on a pan-state basis, but what are the constituent entities of the U.N? Member states, not people. The international charter’s Enlightenment assumptions render its rhetoric toothless.

Disturbingly, Agamben suggests the liability of normal people living in democratic nations to becoming homo sacer, suddenly shut out from their own nation’s privileges or protections (p. 66-68). In a passage of uncharacteristically straightforward argumentation, Agamben’s analysis of refugees as homines sacri trapped between meaning-giving states exposes the lackluster, even hostile response of democratic citizens to these human beings’ fate (p. 75-78, 95-99).

“Agamben sees a double-edged logic of power in the sovereign’s role as homo sacer. A person who places himself above the law must land outside the law, and vice versa.”

For now, however, I want to focus on a separate, special case of Agamben’s theory: the sovereign as homo sacer. The state of exception does not only apply to immigrant refugees or genocide victims; bare life may be all that is left to dictators as well. Consider the lack of due process in the deaths of Italian Duce Benito Mussolini and Romanian autocrat Nicolae Ceaușescu. Mussolini ended up shot by partisans and left hanging upside down at a gas station, while Ceaușescu’s two-hour show trial put only the thinnest veneer of legality on a political assassination by firing squad. The key to Agamben’s argument is that — while we lament the summary violence — many consider these killings justified, or at least excusable. Why?

Agamben sees a double-edged logic of power in the sovereign’s role as homo sacer. A person who places himself above the law also lands outside the law, and vice versa. As Agamben explains:

“The sovereign and homo sacer present two symmetrical figures that have the same structure and are correlative: the sovereign is the one with respect to whom all men are potentially homines sacri, and homo sacer is the one with respect to whom all men act as sovereigns.”

Giorgio Agamben, Homo Sacer (Part II, Ch. 5, p. 53)

While a relatively powerless person placed outside the law undergoes the loss of rights, a powerful person placed outside the law experiences the loss of restraints. Lacking leverage in political life, the opposition can only react against the sovereign’s “bare life” — that is, outside normal legal channels, against the man (or woman) qua mortal human being, not qua political leader. If a revolutionary mob does so, however, they (ironically) cannot avoid taking upon themselves the role of sovereign. Why?

In answer, Agamben does something strange: he draws on the Nazi jurist Carl Schmitt (who was, in turn, thinking of Søren Kierkegaard). Why would Agamben — who hates Nazis and has written an entire book dedicated to the suffering and memory of Holocaust survivors — reference a Nazi political theorist? Agamben reads Schmitt to reverse engineer how the Nazis took control of a liberal democracy . Schmitt was trying to justify the Nazi takeover, but Agamben wants to understand the process of fascist-ization so as to guard against it. Schmitt had made the point that in any society “sovereign is he who decides on the state of exception”(p. 13). By pressing hard on this political pivot point, the Nazis exploited a weakness inherent in democracy to transform a republic into a dictatorship capable of mass murder. Whoever gets to decide on one “state of exemption” (e.g., declaring war, deciding citizenship eligibility) can do so again — thus establishing them as the real sovereign in a polity.

To sidetrack from Agamben’s actual argument, it is worth noting that by his logic the hidden weakness of democracy is that, in its positive formulation, Schmitt’s remains the unnoticed principle behind representative rule. While 364 days out of the year decisions seem to be made by (in the U.S.) Congress, the defining exception is, say, the first Tuesday in November, a theoretically primordial day which supposedly defines the rule by which power belongs to the voters. In itself, this power is ambiguous; the voters may confirm or suppress any previously declared state of exception. In 1933 Germany, the voters, acting as sovereign, voted for a party that wanted to radically extend the state of exception, thus giving their duly elected sovereign radically enhanced power (hence Schmitt’s attraction to the concept.) The key element here is that after that fateful election (and every other election) the sovereignty immediately passed from the voters assembled to the party they had empowered to decide on the state of exception, one that soon extended to Jews, later to Poles, and so on. Representative democracy’s popular sovereignty is inherently unstable. So long as elections are not rigged or canceled, the people get their annual (or whatever) state of exception; but that state passed out of their control once again the moment the polls close.

Returning to what Agamben does hone in on, the fact that even democratic citizens delegate to the government the right to decide on the most key exception of all — who lives or dies, especially during war — in the final analysis the sovereignty remains with the executive power, democratic rhetoric notwithstanding (p.11-13). (Agamben uses the term biopolitics [p.13] to refers to the increasing concern in modern democracies with biological concerns: debates over euthanasia that ends a life, abortion that prevents a life from starting, welfare that sustains physical life, warfare that destroys life, and so on [p. 80-83].)

Here Agamben’s point is not that every citizen of a democracy will necessarily to be exposed to the nakedness of “bare life,” nor that disgruntled citizens should take the life of their sovereigns. (The former is usually termed murder or genocide, and the latter treason or regicide.) The point is that power, whether popular or sovereign, cannot avoid the conundrum inherent in the state of exception. The double movement is built in. In the United States, only elaborate constitutional protections (such as a Bill of Rights or separation of powers) hide the homo sacer dynamic.

Contrary to American democratic expectations that the president not be considered above the law, Agamben does not shrink from naming the U.S. president as a state-of-exception-defining sovereign, with all the potential lawlessness pertaining thereto. Agamben makes the point explicit in the final paragraph of Part II, Ch. 5:

“Yet the other defining characteristic of homo sacer’s life, that is, his unsacrificeability according to the forms prescribed by the rite of the law, is also to be found in the person of the sovereign. Michael Walzer has observed that in the eyes of the people of the time, the enormity of the rupture marked by Louis XVI’s decapitation on January 21, 1793, consisted not in the fact that a monarch was killed but in the fact that he was submitted to a trial and executed after having been condemned to capital punishment (“King’s Trial,” pp. 184-85). In modern constitutions, a trace of the unsacrificeability of the sovereign’s life still survives in the principle according to which the head of state cannot be submitted to an ordinary legal trial. In the American Constitution, for example, impeachment requires a special session of the Senate presided over by the chief justice, which can be convened only for “high crimes and misdemeanors,” and whose consequence can never be a legal sentence but only dismissal from office. When the Jacobins suggested, during the discussions of the 1792 convention, that the king be executed without trial, they merely brought the principle of the unsacrificeability of sacred life to the most extreme point of its development, remaining absolutely faithful (though most likely they did not realize it) to the arcanum according to which sacred life may be killed by anyone without committing homicide, but never submitted to sanctioned forms of execution.”

Giorgio Agamben, Homo Sacer (Part II, Ch. 5, p. 62)

Agamben does not base this hypothesis on anything specific to the U.S., but instead invents yet another use for the homo sacer concept by claiming that the functional aspects of the idea have become embedded in the shared assumptions of the Western political tradition, even in its democratic-republican iterations. Agamben is not claiming that people are going around thinking in terms of an ancient Roman ritual formula. Instead, he is drawing on work by Hans Blumenberg suggesting that social fictions (myths, but also laws, money, etc.) arise to fit pre-existing social needs; the justification — in the form of a myth (in ancient times) or a constitution (in modernity) — arises only afterwards. If this is the case, the specific functions that myth-constitutions must fulfill will remain as constant as the continuity in basic human needs — security, power, spirituality, etc. These may take myriad cultural forms but remain ever-present. It might help to think of homo sacer as an algebraic term, something like x in y = mx+b. The name homo sacer is outdated, but the basic social function [x] remains a variable that will tend to be fulfilled in each society whose cultural memory subsumes that of the Roman Republic. Homo sacer functions to solve the cultural conundrums surrounding the applicability of law to two populations: (1) stateless persons and (2) state leaders. Socially, these assumptions function to aggrandize in-group power by denying social help to outsiders (stateless) and to protect the positions of the existing elite (state leaders). The callousness of many folks toward refugees at our southern border suggests that many Americans regard asylum-seekers as homines sacri; the unique situation of the president requires more untangling.

Keep in mind that homo sacer does not mean the state-leader is immune from punishment. It does mean that punishment, when it comes, will come outside normal legal channels, and must operate in the binary matter of 1s and 0s, of complete removal or complete exoneration. There are no half-measures — “who strikes a king must strike to kill.” This dynamic emerges in the reality that while the American president is de jure subject to law (via impeachment), the fact that the trial takes the form of a political battle in the Senate rather than a traditional judge-or-jury trial, coupled with the fact that the result is not a criminal sentence but instead removal from office (political death, if you will), shows that the president is de facto not subject to coutroom law at all, but only to a determined political “killing.” Do I wish it were otherwise? Yes, and so do we all (I expect). The president’s removal must take the form of a political revolt within the House and Senate, and the result is either exoneration (confirming the president in his powers) or removal (political “death”), but not a prison sentence. The fact that America appears to be going 0 for 3 in its impeachment attempts (Johnson, Clinton, Trump; Nixon was never actually impeached) may be confirming the president’s sense of immunity from legality, thus edging the executive branch toward monarchical territory.

Please do not misinterpret the above as my (or Agamben’s) advocating the application of Jacobin tactics to the president-day White House. Also, please do not interpret the foregoing as support for a monarchical president. My point rather is this: in Agamben’s analysis, if a U.S. president is truly acting outside the law, that chief executive will have become an American iteration of the homo sacer, with all that implies. First, the president-outlaw may not be ritually sacrificed (in a disenchanted society, this is means may not formally handed over to law enforcement) Thus, even granted a removal by the Senate, it would be too much to hope (here I show my political cards) that Mr. Trump will go to jail. Second, whoever does happen to dethrone the outlaw sovereign may do so with impunity. Since impeachment by the House of Representatives and conviction by the Senate are inherently political tactics, not legal-judicial acts, impeachment does not violate the first prohibition against sacrifice (via our demythologized criminal justice system). Second, the people who thus end the “political life” (p. 75) of the sovereign hors-la-loi may do so with “impunity” (p. 47). Conviction and removal — in the unlikely event it transpires — will fit into a long Roman-republican tradition legitimating the removal of a law-breaking chief executive.

However, whatever use a hypothetical Continental philosophy-reading congressional Democrat could make of Agamben’s insights is of course limited by the division of power (in Agamben’s term, sovereignty) in a bicameral legislature. The House appears to have accepted Agamben’s logic; the Senate appears unlikely to do so.

With yet another day-long burst of popular sovereignty looming on November 3, 2020, the vox populi may soon render this discussion moot. Yet regardless of whom is named “sovereign” in any given republic, Agamben still worries about the other face of homo sacer, the many powerless, state-less homines sacri, both at home and abroad. Writing from Texas, where the governor has just refused to participate in the national refugee resettlement program, Agamben’s primary concern for the “bare life” of those outside the guarantee of rights by any one state (i.e., refugees) resonates strongly.

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