5 German Law Journal No. 5 (1 May 2004) - Special Edition
Interview with Giorgio Agamben – Life, A Work of Art Without
an Author: The State of Exception, the Administration of Disorder
and Private Life
By Ulrich Raulff
Your latest book The State of Exception has recently been published
in German. It is an historical and legal-historical analysis of
a concept that we, at first blush, associate with Carl Schmitt. What does
this concept mean for your Homo Sacerproject?
 Agamben: The State of Exception belongs to a series of genealogical essays
that follow on from Homo Sacer and which should form a tetralogy. Regarding
the content, it deals with two points. The first is a historical matter:
of exception or state of emergency has become a paradigm of government today.
Originally understood as something extraordinary,an exception, which should
have validity only for a limited period of time, but a historical transformation
made it the normal form of governance. I wanted to show the consequence of
this change for the state of the democracies in which we live. The second
is of a
philosophical nature and deals with the strange relationship of law and lawlessness,
law and anomy. The state of exception establishes a hidden but fundamental
relationship between law and the absence of law. It is a void, a blank and
this empty space
is constitutive of the legal system.
 Raulff: You wrote already in the first volume of Homo Sacer that the
paradigm of the state of exception came into being in the concentration camps,
to the camps. The indignant outcry of last year as you applied this concept
to the United States, to American politics, was predictably loud. Do you
your critique to be correct?
 Agamben: Regarding such an application, the publication of my Auschwitz
book brought similar remonstrance. But I am not an historian. I work
A paradigm is something like an example, an exemplar, a historically singular
phenomenon. As it was with the panopticon for Foucault, so is the Homo
Sacer or the Muselmann or the state of exception for me. And then I use
to construct a large group of phenomena and in order to understand an historical
structure, again analogous with Foucault, who developed his “panopticism” from
the panopticon. But this kind of analysis should not be confused with
a sociological investigation.
 Raulff: Nevertheless, people were shocked by your comparison because
it seemed to equate American and Nazi policies.
 Agamben: But I spoke rather of the prisoners in Guantánamo, and their
situation is legally-speaking actually comparable with those in the Nazi camps.
The detainees of Guantanamo do not have the status of Prisoners of War, they
have absolutely no legal status. They are subject now only to raw power; they
have no legal existence. In the Nazi camps, the Jews had to be first fully “denationalised” and
stripped of all the citizenship rights remaining after Nuremberg, after
which they were also erased as legal subjects.
 Raulff: What do you understand the connection to be to America’s security
policy? Does Guantánamo belong to the transition you have previously
described from governance through law to governance through the administration
of the absence
 Agamben: This is the problem behind every security policy, ruling through
management, through administration. In the1968 course at the Collège de
France, Michel Foucault showed how security becomes in the 18th century a paradigm
of government. For Quesnay, Targot and the other physiocratic politicians, security
did not mean the prevention of famines and catastrophes, but meant allowing them
to happen and then being able to orientate them in a profitable direction. Thus
is Foucault able to oppose security, discipline and law as a model of government.
Now I think to have to have discovered that both elements – law and the
absence of law – and the corresponding forms of governance – governance
through law and governance through management – are part of a double-structure
or a system. I try to understand how this system operates. You see, there
is a French word that Carl Schmitt often quotes and that means: Le Roi
mail il ne gouverne pas (the King reigns but he does not govern). That
is the termini
of the double-structure: to reign and to govern. Benjamin brought the conceptual
pairing of schalten and walten (command and administer) to this categorization.
In order to understand their historical dissociation one must then first
grasp their structural interrelation.
 Raulff: Again, is the time of law over? Do we live now in an era of rule
by decree (Schaltung), of cybernetic regulation and of the pure administration
 Agamben: At first glance it really does seem that governance through
administration, through management, is in the ascendancy, while rule by law
appears to be in
decline. We are experiencing the triumph of the management, the administration
of the absence of order.
 Raulff: But do we not also observe, at the same time, the enlargement
of the whole legal system and a tremendous increase in legal regulation?
are created on a daily basis and the Germans, for example, regularly feel
that they are governed far more by Karlsruhe than Berlin.
 Agamben: Also there you see that both elements of the system coexist
with one another, and that they both are driven to the extreme, so much so,
seem at the end to fall apart. Today we see how a maximum of anomy and disorder
can perfectly coexist with a maximum of legislation.
 Raulff: From the way you have just described it, I see a rift that
leads to an ever-starker polarization. Elsewhere, however, you say that
realm of the political will become ever narrower – and that sounds
somewhat critical and decadently theoretical.
 Agamben: Allow me to reply with Benjamin: there is no such thing as
decline. Perhaps this is because the age is always already understood as
being in decline.
When you take a classical distinction of the political-philosophical tradition
such as public/private, then I find it much less interesting to insist
on the distinction and to bemoan the diminution of one of the terms, than
the interweaving. I want to understand how the system operates. And the
system is always double; it works always by means of opposition. Not only
but also the house and the city, the exception and the rule, to reign and
to govern, etc. But in order to understand what is really at stake here,
learn to see these oppositions not as “di-chotomies” but as “di-polarities,” not
substantial, but tensional. I mean that we need a logic of the field, as
in physics, where it is impossible to draw a line clearly and separate
The polarity is present and acts at each point of the field. Then you may
suddenly have zones of indecidability or indifference. The state of exception
of those zones.
 Raulff: Does the endpoint – and therewith the reality – of
the private still have a meaning, in the sense of your systematic examination
Is there something there that is worth defending?
 Agamben: It is firstly obvious that we frequently can no longer differentiate
between what is private and what public, and that both sides of the classical
opposition appear to be losing their reality. And the detention camp at
is the locus par excellence of this impossibility. The state of exception consists,
not least, in the neutralization of this distinction. Nonetheless, I think that
the concept is still interesting. Think only of the multitude of organizations
and activities in the United States that, at present, are devoted to the protection
and defense of “privacy” and attempt to define what belongs
within this realm and what does not.
 Raulff: How does this then involve your work?
 Agamben: Homo Sacer is supposed to, as I said at the beginning, comprise
four volumes in total. The last and most interesting for me will not be
dedicated to an historical discussion. I would like to work on the concepts
and lifestyles. What I call a form-of-life is a life that can never be
separated from its form, a life in which it is never possible to separate
such as bare life. And here too the concept of “privacy” comes
in to play.
 Raulff: At this point you clearly link up again with Foucault, perhaps
with Roland Barthes as well, who held one of his later lectures on the topic
 Agamben: Yes, but Foucault went back in history to the Greeks and the
Romans when he had this idea. When you work on this topic, you suddenly no
a floor under your feet. And here you see clearly that we seem not to have
any access to the present and to the immediate, except through what Foucault
an archaeology. But what an archaeology could be, whose object is a form-of-life,
that is to say an immediate life experience, this is not easy to say.
 Raulff: As I understand it, almost every philosopher has had a vision
of the good and the right or of a philosophical life as well. What does yours
 Agamben: The idea that one should make his life a work of art is attributed
mostly today to Foucault and to his idea of the care of the self. Pierre
Hadot, the great historian of ancient philosophy, reproached Foucault that
of the self of the ancient philosophers did not mean the construction of
life as a work of art, but on the contrary a sort of dispossession of the
What Hadot could not understand is that for Foucault, the two things coincide.
You must remember Foucault’s criticism of the notion of author, his radical
dismissal of authorship. In this sense, a philosophical life, a good and beautiful
life, is something else: when your life becomes a work of art, you are not the
cause of it. I mean that at this point you feel your own life and yourself as
something “thought,” but the subject, the author, is no longer there.
The construction of life coincides with what Foucault referred to as “se
deprendre de soi.” And this is also Nietzsche’s idea of a work
of art without the artist.
 Raulff: For all those who have tried over the last thirty years to forge
a non-exclusive form of politics, Nietzsche was the decisive reference. Why
is he not that for you?
 Agamben: Oh, Nietzsche was important for me also. But I stand rather
more with Benjamin, who said, the eternal return is like the punishment
the sentence in school in which one had to copy the same sentence a thousand
 Raulff: But the work of the Italian Philological School around and
after Montinari has precisely shown us that Nietzsche is not a hard, despotic
as one wanted us to believe for so long, but rather an open, traversed
and criss-crossed system of readings and ideas – a work of art without
author, like you just now called for.
 Agamben: If that is so, then we need to learn to forget the presence
of the subject. We must protect the work against the author. See, e.g.,
Agamben, Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-Roazen
trans., Stanford University Press 1998). Homo Sacer is, according to ancient
a human being that could not be ritually sacrificed but whom one could kill
without being guilty of committing murder. Agamben uses the concept as the
for a fresh decoding of the major political difficulty in our century: the
rise of the worst sort of totalitarianisms, with Nazism at its apex.
 Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive (reprint,
Zone Books 2002).
 See, e.g., Michel Foucault, The Foucault Reader 217 (Pantheon 1984)
was only] in the penitentiary institutions that Bentham’s utopia could
be fully expressed in a material form. In the 1830s, the panopticon became the
architectural program of most prison projects. It was the most direct way of
expressing ‘the intelligence of discipline ...’”). The
panopticon consisted of a large courtyard, with a tower in the center,
surrounded by a
series of buildings divided into levels.
 Id. at 212. ("... And, although the universal juridicism of modern society
seems to fix limits on the exercise of power, its universally widespread panopticism
enables it to operate, on the underside of the law, a machinery that is both
immense and minute, …”).
 On 20 April 2004 the U.S. Supreme Court heard argument in cases seeking
the determination of the legal status and judicial access of the Guantánamo
detainees. See, e.g., Rasul v. Bush, No. 03-334 (D.C. Cir filed 2 Sept.
2003), cert. granted 124 S.Ct. 534 (2003).
 The Nuremberg Laws, decreed at the 1934 Nazi “Party Conference on Freedom” included
a law on citizenship, “which deprived all those ‘not of German blood’ of
their rights as citizens.” Ingo Müller, Hitler’s Justice
96-97 (Deborah Lucas Schneider trans., Harvard University Press 1991).
 Karlsruhe is the seat of the Bundesverfassungsgericht (BVerfG – German
Federal Constitutional Court) and the Bundesgerichtshof (BGH – German Federal
Court of Justice). For a sense of the judicializing-political meaning of Karlsruhe,
see Gerhard Casper, The “Karlsruhe Republic” – Keynote
Address at the State Ceremony Celebrating the 50th Anniversary of the Federal
Court, 2 German Law Journal No. 18 (01 December 2001), at http://www.germanlawjournal.com/article.php?id=111.
 See, e.g., Michel Foucault, Archeology of Knowledge (Pantheon 1982).
 See, e.g., Pierre Hadot, What is Ancient Philosophy (Michael Chase trans.,
Belknap 2004); Philosophy as a Way of Life: Spiritual Exercises from Socrates
to Foucault (Pierre Hadot and Arnold Davidson eds., Michael Chase trans.,