Journal for the Arts, Sciences, and Technology

Volume 03 - Number 01, 2005

Life and Law: Agamben and Foucault on

Governmentality and Sovereignty

Jonathan Short
York University

This fusion of ideas examines the way political power in so-called 'control societies'
relates law and life-i.e. how the law violently pre-supposes and simultaneously produce
the bare life of the citizen as an object of rule. This relation is described by synthesiz-
ing Agamben's logic of the exception, a general topography of sovereign power, with
Foucault's work on governmentality, which is often thought to be opposed to an analy-
sis of sovereign power, when in fact it evinces a logic similar to Agamben's outline of
sovereignty. From this composite perspective on governmentality and sovereignty, I
undertake a schematic analysis of how contemporary forms of social control exemplify
Agamben's claim that the concentration camp has become the bio-political paradigm of
the globalized polis.

16

LIFE AND LAW: THE CAMP AS TECHNOL-
OGY OF CONTROL
As Walter Benjamin clearly understood,
the law is never self-sufficient, but must com-
pose a relation to something beyond itself,
something over which law appropriates the
right to pass judgement. Such appropriation
takes the form of violent power over natural
life for the sake of law's own power of presup-
position, antecedent to whatever discreet ends
law may undertake to bring about (Benjamin,
1996: 248) . This structure of law situates the
way it belongs to the most archaic of social-
cultural formations, referencing a moment in
history haunted by its own pre-history, a
moment when the mythic-religious fusion of
logos and physis is (always) already lost, but
where the desire for which demands its per-
petual re-enactment. This archaic dimension
of law, from the vantage point of our present,
continues to partake in what Jean-Luc Nancy
describes as the completion of the Western
project of signification, but in a fashion that
fails to realize that this project has reached its
limit and its simultaneous exhaustion (Nancy,
1997). As the intensification of life's manage-
ment advances under what is perhaps best
described as new technologies of control, the
project of conflating life with law can be
glimpsed in its exhausted condition. Here,
what becomes more obvious with every pass-
ing day is that life and law differ within
themselves, making it impossible that one can
ever be used as a means of containing the
other.
The relationship between law and life that
Benjamin suggests is confirmed in at least one
respect by Foucault's analysis (in his lecture
course entitled 'Abnormal') of what in the evo-
lution of legal discourse was known as 'the
human monster' (Foucault, 2003:56). The
human monster embodied something that
could only appear in law as an affront and a
challenge to law. This was because the mon-
ster, first of all, represents a perversion of
nature over which law attempts to exercise its
jurisdiction and power. Foucault writes, "what
defines the monster is the fact that its exis-
tence and form is not only a violation of the
laws of society but also a violation of the laws
of nature" (2003: 56). For Foucault, the mon-
ster inhabits a 'juridico-biological domain'
where the monstrous represents the 'over-
turning' of law at its point of exception or
limitation, and thus calls for a supplemental
17
Journal for the Arts, Sciences, and Technology
Volume 03 - Number 01, 2005
response beyond the law on its very behalf.
This response takes the form of either "vio-
lence, the will for pure and simple suppression,
or medical care or pity. But the law itself does
not respond to the attack on it represented by
the monster's existence" (ibid.: 56). Although
the monster represents the limit of law that
even into the twentieth century provides the
juridical model for the definition of every kind
of abnormality or perversion, the monstrous
'in-itself' remains strictly unintelligible because
it is what exists outside both law and nature as
their perpetual ex-ception (ibid.: 57).
Foucault's analysis of the juridical figure of the
human monster might be said to exhibit the
general form in which life presents the law with
a state of exception or emergency to its own
power of presupposition.
The exception, which provokes the legal
state of emergency, is actually characterized
by a double relation to that over which the law
would apply. On the one hand, the law must
be able to point to something that is, strictly
speaking, outside of law in order to claim this
'outside' as the source of emergency. On the
other hand, in so doing, law effectively denies
that this outside is truly outside, since it must
be susceptible to regulation and intervention
of some kind. At this precise overlap between
inside and outside is situated Agamben's con-
cept of the state of exception or zone of
indistinction, where one sees "the isolation of
the force of law from the law itself", taking the
form of "a regime of the law within which the
norm is valid but cannot be applied (since it
has no force), and where acts that do not have
the value of law acquire the force of law"
(2004: 4).
It seems that while Agamben thinks the
problem of the relation between life and law
under the rubric of sovereignty-which for him
does not designate a particular historical series
or diagram of power (juridical, disciplinary,
etc.), but rather describes the general logic or
topography of this relation. Foucault, in con-
trast, attempts to articulate the historically
discontinuous ways that power operates as a
variable, tactical, and diagrammatic formation
of relational forces: those of repression, mul-
tiplication, or stimulation. But this theoretical
difference is less real than apparent, becom-
ing, for reasons that will be expounded below,
almost a division of labour. If what is at stake
for Foucault are the discreet modalities or
deployments of an immanent tactic of power,
for Agamben, that immanent tactic reflects the
Journal for the Arts, Sciences, and Technology
Volume 03 - Number 01, 2005
quasi-transcendental and problematic topolo-
gy of the relation between law-in the sense of
nomos or ordering-violence, and life itself. The
problem, although expressed differently for
Foucault and Agamben, is how nomos, what-
ever its mode of regulation, makes it appear
that nothing, not least its own violent relating
of law and life, falls outside its purview. This
common concern evinces a corresponding pre-
occupation with the specifically political
dimension of the Western project of significa-
tion, to which, in Agamben's words, "the
onto-theological strategy that wants pure
being within the net of logos, corresponds the
strategy of exception that has to secure the
relation between violence and law. It is as if
law and logos would need an anomic or 'a-logic'
zone of suspension in order to found their rela-
tion to life" (ibid.: 7).
This common concern in both Agamben
and Foucault with the political dimension of the
Western project can be specified further by
analyzing the key political categories in their
respective works that appear most divergent:
the concepts of sovereignty and governmen-
tality. As is well-known, Foucault appears to
offer an analysis of power in which sovereign-
ty-for him the transcendental ordering of a
territory-is increasingly eclipsed by a series of
practical techniques involving relations of
knowledge and power over human beings and
material things which he names the art of gov-
ernment or governmentality. Foucault
expresses the distinction between sovereignty
and governmentality this way: "whereas the
end of sovereignty is internal to itself and pos-
sesses its own intrinsic instruments in the
shape of its laws, the finality of government
resides in the things it manages and in the pur-
suit of the perfection and intensification of the
processes which it directs" (1991: 95). The art
of government, as it develops in the early mod-
ern period, will include a diverse series of aims
corresponding to the different objects of its
concern, such as the economy, the population,
or the family. But what sets the art of gov-
erning apart from the concern of sovereignty
is that while the latter is concerned exclusive-
ly with obedience to laws, since obedience to
laws are what guarantees the transcending
power of the sovereign over those it rules, gov-
ernment composes immanent relations
between the discreet and diverse phenomenon
of its concern and the techniques it employs
(ibid.: 95). If the power and person of the sov-
ereign are usually the explicit focus of most
18
political writing, this is because the instrument
of sovereign power, the law, appears as a tran-
scendental force imposing itself on the
population of citizen-subjects; what is much
less detectable or obvious. Therefore, Foucault
requires our more urgent attention and inves-
tigation to those modes of governmental
regulation that proceed immanently, appar-
ently "from the things themselves", and whose
tactics and norms of ordering, consequently,
are more likely to go unseen in the web or grid
of power/knowledge-relations established for
such ordering and disposition. It would follow
from this that far from denying the logic of
exception as being central to power relations,
Foucault himself identifies such an exception-
al zone at the point where phenomena are
governed immanently, at the intersection
between 'things themselves' and the gazes or
grids of power/knowledge used to understand
and dispose of them. This zone of exception,
through which governmental power consti-
tutes, as a phenomenon or a thing, i.e., that
which it attempts to manage, is where Foucault
locates the key stakes in contemporary poli-
tics, shifting them away from the power of
sovereignty, which always appears transcen-
dentally to impose its rule. While this does not
commit Foucault to the view that sovereign
power is simply superseded in modern socie-
ty, he argues that this type of power is
increasingly absorbed by the forms of power
associated with government, because the lat-
ter employ "laws themselves as tactics" in the
attempt to regulate and order people and
things (ibid.: 95).
Where Agamben might object to
Foucault's account of governmental power
concerns the relation between immanence and
transcendence that marks the boundary
between government and sovereignty.
Indeed, in the introduction to his Homo Sacer,
Agamben locates a blind-spot or limit in
Foucault's work at precisely the point where
the "voluntary servitude of individuals comes
into contact with objective power" (Agamben ,
1998: 6). Consequently, it might be argued,
this blind-spot in Foucault's thinking appears
linked to his practice of genealogy, and hence
to his interpretation of Nietzsche in the pro-
grammatic essay "Nietzsche, Genealogy,
History". In this essay, Foucault offers a read-
ing of Nietzsche's understanding of history not
as a process of development or progress
toward universal peace, but as an arena of
unending combat between contending forces,

"the endlessly repeated play of dominations"
(1977: 150). Here, Foucault suggests that
older, historically dominant social forms are
constantly displaced by new social forces that
come to replace them by bending their system
of rules to new ends. According to Foucault,
rules or techniques of ordering are "empty in
themselves, violent and unfinalized; they are
impersonal and can be bent to any purpose"
(ibid.:151). Those who succeed in replacing
the old rulers do so not by instituting a frontal
assault-a strategy entertained by those who
remain invested in the transcendental para-
digm of power Foucault seeks to
undermine-but rather by 'seizing these rules'
of the rulers from inside or underneath, sur-
reptitiously changing their "function so as to
overcome the rulers through their own rules"
(ibid.: 151). One can see quite easily how this
reading of Nietzsche shapes Foucault's
genealogical account of how the immanent tac-
tics of government come to colonise and
replace from within the ends of the old order
of sovereignty, how the modern complex of
power/knowledge comes to supplant the rule
of law. But what is clear as well is that
Foucault's Nietzschean concept of 'overcom-
ing' here suggests a transformation of social
forms in a single direction. Despite Foucault's
emphasis on the revolutionary potential of his-
torical discontinuity, in other words, he
apparently fails to recognize that the shifts of
power and their forms he is describing do not
result only in the eruption of difference, but
that the newer forces can be restricted and
harnessed to ends that ultimately confirm the
power and identities of the old rulers. In this
sense, Foucault's claim that "the governmen-
talization of the state is at the same time what
has permitted the state to survive", while it
suggests that sovereignty has been supplant-
ed by the techniques of government, might
also indicate that the transcendental power of
the law has managed to incorporate those very
techniques as one of its own mechanisms of
assuring the enduring stability of its nomic
form (1991: 103).
From the preceding discussion, it should
be noted that Agamben's identification of sov-
ereignty with the logic of the state of exception
is sufficiently plastic to encompass both the
governmentally immanent tactics of power and
the more classically transcendent sovereign
forms of law, provided the latter are under-
stood to include the capacity for their own
suspension. This would effectively render
19
Journal for the Arts, Sciences, and Technology
Volume 03 - Number 01, 2005
moot the distinction between immanent and
transcendent forms of power because
Agamben understands sovereign power to be
characterized by a potentiality that is both (and
hence not) immanent and transcendent. In
this way, Foucauldian government cannot but
be part of what Agamben names as the rela-
tion of sovereignty; for Agamben, "the
inclusion of bare life in the political realm con-
stitutes the original-if concealed-nucleus of
sovereign power. It can even be said that the
production of a biopolitical body is the original
activity of sovereign power. From this per-
spective, 'biopolitics is at least as old as the
sovereign exception' " (1998: 6, original
emphasis omitted). If, as has been claimed
above, the sovereign oversees the way law
relates to life, it also assumes responsibility for
the way life, both of the individual and of the
population, is situated with respect to law,
where law should be understood in Agamben's
sense of nomos, or ordering. The modern arts
of government, on this reading, far from being
even conceptually separable from sovereign
power, become an extension of it, with the bio-
political management of the population
emerging in governmental exercises of power
as one of a number of ways nomos relates itself
to life. Because sovereign power is the very
aperture through which life first appears as
'bare life', that is, as something pre-supposed
outside law but to which law's force of dispo-
sition necessarily applies, this power of
exceptionality always composes a double-
immanent and transcendent-relationship to
what it would govern. For both Agamben and
Foucault, the application of power entails an
exceptional moment in its very constitution,
and it ultimately matters little whether this
exceptional point is called sovereignty or gov-
ernmentality, transcendence or immanence.
With the explication of this theoretical
commonality or convergence, it is quite easy
to dispense with another issue that might at
best be described as a false problem. As is well
known, Agamben centres his theory of excep-
tion and emergency on a specific historical site,
that of the concentration camp, and more
specifically still, upon the Nazi attempt to
exterminate the European Jews through this
means. The specificity of the camp as an insti-
tution of power might appear unduly to limit
Agamben's conception of modern power to
those extremities of enclosural space, which
Foucault also spent much effort in describing
in order to show their discontinuous character.
Journal for the Arts, Sciences, and Technology
Volume 03 - Number 01, 2005
In fact, although Foucault did not live long
enough to theorize fully the transition in which,
according to Deleuze, institutions of enclosure
were increasingly being eclipsed by a new logic
of (what Deleuze names) control societies. In
contrast to the diagrammatic of enclosure, the
diagrammatic or axiomatic of control involves-
in a way mimicking Deleuze's own metaphysics
of immanence-a perpetual modulation and
mobility of tactics of power having no dis-
cernible centre, making increasingly
indistinguishable map and territory. If the
institutions of disciplinary society operated
according to enclosure, which for Deleuze sig-
nify "molds, distinct castings", control
techniques, in contrast, "are a modulation, like
a self-deforming cast that will continuously
change from one moment to the other"
(Deleuze, 1990: 2). But, given the logic of the
exception that Agamben and Foucault identify
as the key characteristic of modern power, if
Foucault believed that the society based on
enclosure was already moving toward the soci-
ety based on control, this is not incompatible
with Agamben's claim that "the camp […] is the
new biopolitical nomos of the planet" (2000:
45).
If in Agamben's work, the signifier 'camp'
refers to actual concentration camps-the most
infamous of which were those instituted by the
Nazis-this is only because for Agamben the sig-
nifier 'camp' refers to any "materialization of
the state of exception", a literal materialization
of the abstract logic of sovereign exceptional-
ity explored earlier (ibid.: 40). Yet, if the camp
is the prime instance of the logic of political
power, namely, that of the exceptional relation
between law and life in its spatial actuality,
then this term encompasses the concentration
camps built by the National Socialists, as well
as those that confine the overwhelmingly reli-
giously and racially marked detainees at the
U.S. military's infamous 'camp X'. Both instan-
tiate that logic of sovereign power, which, in
Agamben's words, "marks in a decisive way the
political space […] of modernity" (ibid.: 42).
As Agamben argues, following Benjamin: the
logic of the political ordering of life has
immemorially entailed temporary actualiza-
tions of zones of exception requiring a decision
on the ontological status of norm and excep-
tion-thus revealing their practical
indistinguishability. The primary feature of
modern political space is that these states of
emergency become permanent, threatening
the political body at all times. According to
20
Agamben, "the political system no longer
orders forms of life and juridical norms in a
determinate space; rather, it contains within
itself a dislocating localization that exceeds it
and in which virtually every form of life and
every norm can be captured" (2000: 44). Since
the camp is the space of this logic, the camp
becomes an actualization of the horizon of the
state of emergency or exception.
If Agamben is correct, then it should be
possible to locate zones of exception or crisis
on each side of the law/life divide, making any
regular relation between them impossible, and
indeed making them the very reason for the
crisis of enclosure. In fact, each of the sides
of this indistinction between norm and excep-
tion (that is, between law and life), are
theorized in the work of Gilles Deleuze, Nikolas
Rose, and Robert Castel, who each attempt to
articulate features of the emerging technolo-
gies of control as extensions of Foucault's
analyses of the technologies of government
and bio-politics. In the nation-state, the pop-
ulation and national territory that the law is to
order, as much as in the scientific understand-
ing of life itself, one can see a rupture or zone
of indistinction appearing within, as well as
between, law and life respectively. Therefore,
putting into crisis their relation and simultane-
ously exposing the impossibility of making
each signify in terms of the other; but also, by
reason of this impossibility, intensifying the sit-
uation in which the permanent state of
exception or society of control becomes the
norm. Although the respective crises of life
and law are related, this is certainly not a lin-
ear or even a causal relation, but, as suggested
at the outset, is a late symptom of the
advanced exhaustion of the Western project of
ideal and complete signification.
First, the immanent norms of life that
were taken for granted as the basis of what
Foucault referred to as a bio-politics of the pop-
ulation are in permanent crisis. As Foucault
argues in volume one of The History of
Sexuality, the emergence of discipline and bio-
power in seventeenth-century Europe depends
upon a new governmental tactic of power
involving the selection, mobilization, and con-
centration of biological forces. As suggested
previously, this marks a rupture with the tac-
tic of Foucault's classical sovereign, whose
signature exercise of power was most clearly
expressed through deduction or repression,
the removal or suppression of vital energy
which came from elsewhere, beyond human

control and jurisdiction, and belonging ulti-
mately to the kingdom of nature (1979: 143).
In the forms of society characteristic of disci-
plinary power, however, the once alien forces
of nature began to fall increasingly within
human control. The ability to intervene in vital
processes, not merely in an extractive way, but
in order to organize, concentrate, and dispose
of their capacities, corresponded to the growth
of technologies aimed first at the individual
body and then later at the collective body or
biology of the population. These political tech-
nologies of bio-power, as Foucault puts it,
"would no longer be dealing simply with legal
subjects over whom the ultimate dominion was
death, but with living beings, and the mastery
it would be able to exercise over them would
have to be applied at the level of life itself"
(ibid.: 142-43). In this mode of power, mas-
tery over life required a pastoral technology of
addressing the individual as such (where the
address brings into being what it pre-suppos-
es as the subject of the address). The
discourses of health involved in the deploy-
ment of sexuality so famously analyzed by
Foucault are double, operating at the level of
exhortations to the individual and aiming
toward the welfare of the flock or biological
population as a whole. When these technolo-
gies of government cross a bio-political
threshold, that of modernity itself, traditional
politics becomes bio-politics, and life is
annexed increasingly under the normalizing
net of power. Certain characteristic forces of
natural life are identified and targeted, ideal-
ized or objectified under the clinical or
disciplinary-pastoral gaze, and thus modified;
conversely, those features deemed less than
useful or outright harmful to individuals and
populations are subjected to what Foucault
describes as disallowance "to the point of
death" (1979: 138).
As Rose points out, however, contempo-
rary bio-political government has recently
changed tactics from the way it is described in
Foucault's work. At one time in the not- too-
distant past "all medicine was able to hope for
was to arrest the abnormality, to re-establish
the natural vital norm and the normativity of
the body that sustained it. But these norms
no longer seem so inescapable, these norma-
tivities appear open to alteration" (Rose,
2001:15-16). With perspicacious advances in
the fields of micro-biology and genetic engi-
neering, medical science not only intervenes in
living processes, but now actively (and quasi-
21
Journal for the Arts, Sciences, and Technology
Volume 03 - Number 01, 2005
transcendentally), defines what were once
considered the intrinsic or inherent norms of
natural life. With custom-made DNA, hormone
replacement therapies that dramatically
change social expectations about the human
life cycle, along with the prospect of stem-cell
research, havoc is being played with the cen-
turies-old notion that natural life consists of a
stable underlying order based upon unalter-
able norms of its own. With an increasing
number of life processes susceptible to being
genetically deciphered and "then reconstruct-
ed in the lab […] modified so that they unfold
in different ways", it would seem that the zone
of indistinction between the natural and the
social-cultural will continue to expand, increas-
ingly threatening the very tenability of the
distinction between human sociality and the
independently natural (ibid.: 16).
Increasingly, the claim that nature is socially
constructed fails to be news.
The ever more problematic nature of the
distinction between nature and culture, how-
ever, means that in turn the pastoral mode of
administration has changed tactics. According
to Rose, pastoral power no longer attempts to
intervene in the putatively holistic subjectivity
of the individual, just as it no longer seeks dis-
creetly to intervene in the lives of dangerous
groups threatening the health of the larger col-
lective. The management of the life of the
population now involves an increasingly epi-
demiological and micrological grid of analyses
based around the multifarious category of risk,
with genetic pre-disposition often assigning
people to pools of potential susceptibility well
before any symptoms of pathology appear
(Rose, 2001: 12; Castel, 1991: 281). Indeed,
as Robert Castel points out, under these sys-
tems of risk assessment, "the new preventive
policies primarily address […] no longer indi-
viduals but factors, statistical correlations of
heterogeneous elements" (1991: 288). In
very similar terms, Deleuze describes a shift
away from pastoral technology to one of con-
trol that targets pre-personal, singular
features, prompting Deleuze to suggest, "we
no longer find ourselves dealing with the
mass/individual pair. Individuals have become
'dividuals' and masses [have become] sam-
ples, data, markets or banks" (1990: 3).
In this shift from the individual to the
'dividual', illness, pathology, and even abnor-
mality have moved into a socio-biological zone
of indiscernibility where it is becoming impos-
sible to separate the healthy from the sick, the
Journal for the Arts, Sciences, and Technology
Volume 03 - Number 01, 2005
normal from the pathological. A growing class
of the 'presymptomatically ill' are exhorted or
compelled to submit to a variety of measures
of control in the name of managing risk, either
to themselves or to the population of which
they form a part. Although Rose thinks that
these measures of control, under what he
refers to as 'advanced liberal' forms of gov-
ernment, are less dangerous than the older
state-sponsored bio-political programmes of
eugenics, he admits that under the new forms
of bio-politics he has been considering, "the
gaze of susceptibility is potentially unlimited"
(ibid.: 11-12); Castel once again re-enforces
Rose's analysis with his claim that new tech-
nologies of risk management in fact represent
new modes surveillance in which "it is no
longer necessary to manifest symptoms of
dangerousness or abnormality, it is enough to
display whatever characteristics the specialists
responsible for the definition of preventive pol-
icy have constituted as risk factors" (Castel,
1991: 288).
Although these newer forms of social con-
trol resemble forms of power with a more
transcendental mode of operation than
appears typical under governmentality as
described by Foucault, they also remain imma-
nent to the social field in which they find their
criteria for intervention. But what is particu-
larly striking about this logic of risk assessment
is the decoupling of any sort of behaviour from
the likelihood of intervention. This feature
again recalls Agamben's logic of the exception
and the camp, since the exception refers to a
situation where the inability to clearly demon-
strate that a particular phenomena under
discussion corresponds to a traditional criteria
for intervention. In other words, to legally
define the way life relates to law.In turn this
suggests, first, the circumstantial or excep-
tional definition of the emergency, and second,
the camp as the determinate location of an
actual response (which might consist of any-
thing deemed appropriate in the
circumstances). The logic of this mode of
social control corresponds to the logic of the
camp rather than to the prison: in a prison are
confined (at least notionally), persons who
have actually done something, broken an
existing law, and so on, while in a camp are
consigned those who are under 'preventive',
administrative detention, because while not
having engaged in dangerous acts, they signi-
fy to officials the pre-personal criteria of risk.
While it would be inappropriate not to recog-
22
nize the specific differences obtaining between
these preventive modes of control and the his-
torical uses to which concentration camps have
been put. The point of comparison that draws
particular concern is that in both situations the
criteria of selection are whatever is deemed
appropriate from an administrative perspec-
tive. Thus, if some singular feature of
existence, today considered innocuous, say,
the fact of belonging to a certain ethnicity, was
later defined as a marker of pathological risk
to the society at large, would this not be
enough under the logic of risk to consign them
to preventive and indefinite detention?
Adding to the dangerousness of this logic
of control, however, is that while there is a cri-
sis of undecidability in the domain of life, it
corresponds to a similar crisis at the level of
law and the national state. It should be noted
here that despite the new forms of bio-politi-
cal control in operation today, Rose believes
that bio-politics has become generally less
dangerous in recent times than even in the
early part of the last century. At that time, bio-
politics was linked to the project of the
expanding national state in his opinion. In dis-
ciplinary-pastoral society, bio-politics involved
a process of social selection of those charac-
teristics thought useful to the nationalist
project. Hence, according to Rose, "once each
life has a value which may be calculated, and
some lives have less value than others, such a
politics has the obligation to exercise this
judgement in the name of the race or the
nation" (2001: 3). Disciplinary-pastoral bio-
politics sets itself the task of eliminating
"differences coded as defects", and in pursuit
of this goal the most horrible programs of
eugenics, forced sterilization, and outright
extermination, were enacted (ibid.: 3). If Rose
is more optimistic about bio-politics in
'advanced liberal' societies, it is because this
notion of 'national fitness', in terms of bio-
political competition among nation-states, has
suffered a precipitous decline thanks in large
part to a crisis of the perceived unity of the
national state as a viable political project
(ibid.: 5). To quote Rose once again, "the idea
of 'society' as a single, if heterogeneous,
domain with a national culture, a national pop-
ulation, a national destiny, co-extensive with a
national territory and the powers of a national
political government" no longer serves as
premises of state policy (ibid.: 5). Drawing on
a sequential reading of Foucault's theory of the
governmentalization of the state here, Rose

claims that the territorial state, the primary
institution of enclosure, has become subject to
fragmentation along a number of lines.
National culture has given way to cultural plu-
ralism; national identity has been
overshadowed by a diverse cluster of identifi-
cations, many of them transcending the
national territory on which they take place,
while the same pluralization has affected the
once singular conception of community (ibid.:
5). Under these conditions, Rose argues, the
bio-political programmes of the molar enclo-
sure known as the nation-state have fallen into
disrepute and have been all but abandoned.
Given the analysis so far, however, one
might wonder if this is necessarily a cause for
optimism. Rose's reading of the declining
hegemony of the national state appears to sug-
gest that enclosures whose goal is the fitness
of a national population-with the concentration
camp as the most infamous example of this
policy-are now also obsolete or impossible.
But Agamben gives a reason not to be overly
optimistic: if the camp instantiates the logic of
exception as an extremity of political power,
the generalization of the extremity can be
linked to the crisis of the national state wit-
nessed in the early twentieth century's
totalitarian experiments. Yet, far from repre-
senting a consequence of the national project
of territorial enclosure, as it does to Rose, for
Agamben, the camp reveals a crisis of un-ten-
ability at the core of this very national project.
The features that spell crisis for the national
state and for the latter's project of relating law
to life emerge because the correspondence
between "a determinate localization (territory)
and a determinate order (the state)" can never
be guaranteed by "automatic regulations for
the inscription of life (birth or nation)"
(Agamben, 2000: 43). The intrinsic impossi-
bility of this pre-suppositional relationship
between life, law, and territory, Agamben
argues, necessarily prompts the state "to
undertake the management of the biological
life of the nation directly as its own task" (ibid.:
43). Far from being a contingent outcome of
the project of nationhood, the concentration
camp is implicit at its origin because with the
birth of the nation "something […] no longer
functions in the traditional mechanisms that
used to regulate this inscription [of life into
law], and the camp is the new hidden regula-
tor of the inscription of life into the order"
(ibid.: 43). But in this 'hidden regulator', life
or birth is inscribed into the order of regulation
23
Journal for the Arts, Sciences, and Technology
Volume 03 - Number 01, 2005
and law by being excepted from it; the camp
is the most purely bio-political space possible
because in it bare life is radically separated
from any notion of how it is to be inscribed in
the legal order. In the space of the camp noth-
ing mediates between sovereign power and
bare life. While one might expect that the actu-
ality of the camp will undergo various
changes-that is, while it may not take the pre-
cise historical forms that it assumed in the
early part of the twentieth century. On the
basis of the logic of exception, it would be pre-
mature to assume the converse, that the camp
is an obsolete structure belonging to by-gone
days of nationalism.
Indeed, recent events might suggest pre-
cisely the opposite. Those features Rose and
others identify as the horizon of our times, con-
sisting on the one hand of the eclipse of
nationhood as a project, along with the forms
of government usually associated with enclo-
sure, while on the other, the generalization of
new tactics of control, are perhaps integrally
linked. Perhaps the generalization of the logic
of control is precisely a response to the proj-
ect of the national state in its crisis mode,
which, as Agamben points out, is not a matter
of succession in time, but was there from the
very outset. In this way, the phenomena asso-
ciated with the so-called war on terror, from
Agamben's perspective, comes as no surprise,
being instead "the sign of the system's inabil-
ity to function without transforming itself into
a lethal machine" (ibid.: 43).
At the point where the state of exception,
emergency, and administrative control,
becomes generalized and potentially unlimit-
ed, the project of relating life to law reaches
its limit and exhaustion. In today's world of
globalization where there are ever larger flows
of population and in which national boundaries
are increasingly porous, despite the continued
centrality of the national state to the way geo-
political space is organized, it is hardly
surprising that the institutions of enclosure are
in crisis, and that newer, more flexibly encom-
passing spaces of control are being deployed.
This crisis is born of the inability of law to cap-
ture life within its grasp, since, as sketched
here, neither law nor life are stable, pre-sup-
posable entities capable of being joined
together in a stable form. At the limit of this
project of signification, a limit which has been
in force for quite some time, but which is still
recognized only in its re-affirmation, the proj-
ect of law is prone to become even more lethal,
Journal for the Arts, Sciences, and Technology
Volume 03 - Number 01, 2005
armed with new technologies of control, which
facilitate the dislocating localization of sover-
eign power. Recognizing and respecting the
limit, however, would necessitate something
like Agamben's project of community, which in
his work goes by the name 'form-of-life', or
something akin to Foucault's advocacy of a pol-
itics that would lead us to become other than
we are, by refusing to acknowledge as neces-
sary what we have become (cf. Agamben,
2000: 3-4; Foucault, 1984). Both these
approaches, however, would recognize in prac-
tical and political terms our finitude as
discontinuous inhabitants of the domains of
law and of life. This recognition passes within
a hair's breadth of Jean-Luc Nancy's thought,
where "in existing, existence pre-supposes
itself and calls itself infinitely as meaning-as
the entirety of meaning, absolutely. But, at the
same time, in existing, existence denies that it
has meaning as a property, since it is mean-
ing. It therefore has to appropriate "the
inappropriability of the meaning that it is"
(Nancy, 1997: 80).
ENDNOTES
1. Benjamin articulates the relationship between law
and its power of violent pre-supposition this way, in
terms that will be crucial for the entire following dis-
cussion: 'the function of violence in lawmaking is
twofold, in the sense that lawmaking pursues as its
end, with violence as the means, what is to be estab-
lished as law, but at the moment of instatement does
not dismiss violence; rather, at this very moment of
lawmaking, it specifically establishes as law not an
end unalloyed by violence but one necessarily and
intimately bound to it, under the title of power. Law
making is powermaking, assumption of power, and
to that extent an immediate manifestation of vio-
lence' (248).
2. In this connection see Agamben's key essay 'On
Potentiality' in his Potentialities: Collected Essays in
Philosophy, 177-184.
3. As is by now well-known, the detainees in Camp
X are overwhelmingly Muslim and Afghani or
Pakistani nationals. That they are, technically
speaking, 'foreign combatants', yet are treated by
the American government as extra-legal detainees,
makes them inhabitants of that zone of exception or
bare life theorized by Agamben, and turns the actu-
al space they inhabit into a de facto concentration
camp.
4. This claim of Agamben's relies heavily upon
24
Arendt's articulation of the contradiction between,
on the one hand, a notion of human rights as pure-
ly universal, based on nothing but their bearer's life,
and on the other, between the principle of nation-
hood under which all such life can have meaning and
specific value only in belonging to a national com-
munity of citizens. It is important to note that
Arendt's distinction between the bearer of universal
rights and national citizen corresponds to Agamben's
citation on the first page of Homo Sacer of the Greek
distinction between natural fact of living, or Zoe, and
life in community, or bios. For Agamben's treatment
of Arent's understanding of this problem, see his
'Beyond Human Rights', pp. 15-28.
(1985): 242.
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--- "Form-of-Life", in Means without End: Notes on
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--- "Beyond Human Rights", in Means without End:
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--- "The State of Emergency", Web version at
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Benjamin, Walter. "Critique of Violence", in Walter
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Castel, Robert. "From Dangerousness to Risk", in
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