Giorgio Agamben’s Homo Sacer. Sovereign Power and Bare Life (1998 ), and State of Exception (2005 ) are, among other things, efforts to explore the deep structures shaping contemporary tendencies in the development of law and politics.1 Agamben offers us the diagnosis that we live in a ‘permanent state of exception’ – a situation in which law cannot be distinguished from lawlessness. He also suggests a prescription; we ought to look beyond law and reach for a realm of human activity ‘uncontaminated’ by law. He warns us that if we do not overcome law, we risk the ‘juridico-political’ system transforming itself into ‘a killing machine’, thus causing an ‘unprecedented biopolitical catastrophe’ (Agamben 1998, 188; Agamben 2005, 86).
In this article, I will argue against both Agamben’s diagnosis and his prescription. One of the troubles with his line of reasoning, the one that I will focus on, is its deadlocked and overly formalistic understanding of how law operates and of how it might be used and transformed. Surely Agamben insightfully points out certain dangerous trajectories in contemporary law and politics, but I believe that the rigid way in which he analyses law and politics forecloses the most promising ways of responding to and acting upon the problems that he outlines.
There is a more general rationale for scrutinizing Agamben’s analysis of law and of the state of exception and the implications of his analysis. Agamben’s understanding of law as a mechanism that puts limitations to our political potential and imagination and his conviction that law cannot be used for emancipatory purposes, is shared by many engaged in the field of critical legal and social studies who assume that exposing the repressive character of law and legal practices is the only possible way of conducting critical studies of law. Such an assumption is problematic as it overlooks the possibility to raise legal arguments and to engage in legal practices for pursuing emancipatory politics, a possibility that in many cases would be both forceful and productive. Sometimes, as in Agamben’s case, these assumptions are built on a perception of law as a machine whose workings, effects and possibilities are given beforehand – once and for all. The objectification of law, in turn, induces fear and aversion which often leads to political, social and legal analyses that suffer, like Agamben’s analysis does, from an overemphasis on, and an overestimation of, the legally authorized power of the state which nourishes the persisting, but misleading, idea that the major threats to our freedom and to a better future are to be found in repressive state-practices.
Since Agamben argues that Guantánamo Bay Naval Base (hereinafter ‘Guantánamo’) – where men and boys who were captured in Afghanistan and elsewhere have been imprisoned since January 2002 – is the locus par excellence of the new state of exception, I will take his characterization of the situation of the detainees at the Naval Base – abandoned by law and dwelling in a state of exception – as the point of departure for fleshing out what Agamben means when he talks about law and the permanent state of exception. The choice of Guantánamo as the starting, and the focal, point is also motivated by the fact that the raising of legal arguments, which is dismissed by Agamben as a constructive form of political action, seems to be one of the best ways of opposing the state of affairs at Guantánamo.
While many have described Guantánamo as a place where law is absent, ‘a legal black hole’ (Steyn 2004), ‘a lawless enclave’ (Hafetz 2006), ‘a prison beyond the law’ (Margulies 2004), et cetera, it has also been accurately pointed out that the situation at the the naval base has been created and sustained through legal regulations and measures. In the following, I will first sketch the coinciding lawlessness and legal rule that govern the life of the detainees at the Naval Base, which make Agamben’s portrayal of Guantánamo as a place where law and lawlessness are simultaneously present and indistinguishable from one another, seem plausible. Next, however, I will argue that when looked at closer Agamben’s characterization of the state of law at Guantánamo turns out to be based on an ahistorical and reductive understanding of law which leads to fatalistic conclusions about the fate of law at Guantánamo and elsewhere. After that I will discuss the possibilities of contesting the situation of the detainees at Guantánamo, and of engaging in political struggles in general by way of asserting legal rights and using legal arguments and strategies.