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Giorgio Agamben on
Security, Government and
the Crisis of Law
Daniel McLoughlin
Published online: 16 Jul 2014.
To cite this article: Daniel McLoughlin (2012) Giorgio Agamben on Security,

Government and the Crisis of Law, Griffith Law Review, 21:3, 680-707, DOI:
10.1080/10383441.2012.10854758
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GIORGIO AGAMBEN ON SECURITY, GOVERNMENT AND THE CRISIS
OF LAW
Daniel McLoughlin*
In State of Exception, Giorgio Agamben argues that

contemporary security politics is an extension of a crisis into
which the liberal constitutional state entered after World War I,
when the state of exception ʻbecame the ruleʼ. Agamben has
been criticised for focusing too narrowly on the problem of
sovereignty and for failing to explain the causes of the crisis he
identifies, yet he also describes this process as one in which

the state of exception becomes a ʻtechnique of governmentʼ.
Building on fragments disseminated across Agambenʼs work, I
argue that his account of the crisis of legality should be
understood in the context of Michel Foucaultʼs work on
biopolitics and government, the problem of total war, and the
rise of the administrative state. By drawing on these reference
points, the article develops an account of the context informing
the crisis of legality, and offers a new interpretation of what is
at stake in the ʻnormalisation of the state of exceptionʼ.
Giorgio Agamben’s analysis of sovereignty and the state of exception in the

Homo Sacer project has been profoundly influential as a way of theorising
contemporary state violence. The second volume of the project, State of
Exception, delivers a caustic account of contemporary constitutional
democracy, arguing that the use of emergency powers over the course of the
twentieth century has radically undermined the rule of law. According to
Agamben, this crisis of legality began in the period of political instability
from 1914–45, and since that time has intensified to the point where the
‘state of exception has now reached its maximum worldwide extension’.1
While this history focuses on the internal politics of ostensibly liberal
democratic states, the closing pages of the work also make it clear that
Agamben believes that contemporary politics is characterised by state
violence that also ignores ‘international law externally’.2
Translated into English in 2005, this analysis of the fate of liberal
constitutionalism found particularly fertile intellectual ground in the early
years of the new millennium, amidst a politics dominated by the fear of
terrorism, the rhetoric of a potentially endless ‘war on terror’ and a legal
*
Vice-Chancellor's Postdoctoral Research Fellow, Faculty of Law, University of New
South Wales.
1 Agamben (2005), p 87.
2 Agamben (2005), p 87.
MCLOUGHLIN: AGAMBEN ON SECURITY, GOVERNMENT AND THE CRISIS OF LAW 681
response that indefinitely restricted rights and expanded executive power.3

There are, however, two important limits to Agamben’s analysis in State of
Exception. First, the history of emergency powers that he develops focuses
heavily on the period between World Wars I and II, and his references to the
constitutional history of the second half of the century are scant. This lack of
attention to the post-war legal situation is perhaps explained by a brief aside
in which he notes that, in this period, ‘the declaration of the state of
exception has been gradually replaced by an unprecedented generalisation of
the paradigm of security as the normal technique of government’.4 This
nonetheless raises a new issue for using Agamben’s work to analyse the
contemporary political constellation: what does he mean by the ‘paradigm of
security’, and how is its use as a ‘technique of government’ related to the
law and politics of the exception?

Second, several commentators have argued that the state of exception is
an inadequate analytical tool for understanding the complexities of
contemporary politics as it focuses on law at the expense of other forms of
political power and organisation. For example, in a barely veiled critique of
Agamben in Commonwealth, Hardt and Negri criticise the ‘apocalyptic tone’
of contemporary critical theory. One of the decisive problems with this
‘excessive focus’ on the problem of authoritarianism, state violence and the
sovereign exception is that ‘economic and legal structures of power tend to
be pushed back into the shadows’ 5 when these provide the horizon of
intelligibility for contemporary state practices: ‘the political is not an
autonomous domain but one completely immersed in economic and legal
structures’.6 In a similar vein, Steven Colatrella argues that Agamben’s
emphasis on law and sovereignty leads to a marginalisation of the economic
and socio-political, and hence to a ‘total inability to explain why something
is happening rather than to show us that it is’.7 A number of commentators
have also argued that Agamben’s fetishisation of sovereignty is potentially
politically problematic as, without a systematic critique of the way in which
the socio-political and economic structures of liberal societies are implicated
in the development of security politics, the idea of the exception can play
into a politics that mourns and attempts to restore a lost liberal status quo.8
3 Those who adopt elements of Agamben’s approach include Paye (2007), Munster (2004),
Minca (2006), Dyzenhaus (2006), Hardt and Negri (2004), Diken and Laustsen (2005) and
Burke (2007).
4 Agamben (2005), p 14.
5 Hardt and Negri (2009), p 4.
7 Colatrella (2011), p 97. In a similar vein, see Huysmans (2008); Neal (2004), p 373; Neal
(2006), pp 31–46; Burke (2007), p 10.
8 See Neocleous (2008), pp 70–75; Johns (2005), p 629; Colatrella (2011), p 97. While
Agamben’s response to the normalisation of the state of exception is to argue for a
revolutionary politics, the most common political and theoretical reaction from critics of
the ‘exceptionalism’ of the ‘war on terror’ has been to argue for a defence of liberal values
of rights and the rule of law. This position is very common among constitutional scholars
682 GRIFFITH LAW REVIEW (2012) VOL 21 NO 3
This article responds to these issues by analysing and extending

Agamben’s account of the crisis of legality. I examine the factors driving the
normalisation of the state of exception, and clarify how he understands the
contemporary political conjuncture. I do so by drawing on the idea of
biopolitics, which Agamben draws most explicitly from Michel Foucault,
who argues that modernity sees the emergence of new forms of power
devoted to ‘the administration of bodies and the calculated management of
life’9 that supplant and transform the juridical order. While the analysis of
biopolitics plays a crucial role in the Homo Sacer project as a whole, it is
conspicuously absent from State of Exception’s account of the crisis of
liberal legality.10 Nonetheless, it is clear that it does play an important (if
subterranean) role in Agamben’s thinking about the crisis of legality –
indeed, the title of the first chapter, ‘The State of Exception as a Paradigm of
Government’, alludes to Foucault’s lectures on government, which
developed out of his analysis of biopolitics.11
The Normalisation of the State of Exception

There are a range of different traditions and account of the rule of law and
the fundamental characteristics of a liberal democratic state. Nonetheless, it
addressing the state response to contemporary terrorism. As an example in the Australian

context, see Lynch and Williams (2006). In the reception of Agamben’s work, a number
of authors have agreed with his diagnosis of a crisis of law while arguing for such a
defence of rights and the rule of law: see Dyzenhaus (2006); Sharpe (2005).
9 Foucault (1978), p 140. Technically, Foucault uses the term ‘biopower’ to describe the
emergence of forms of power aimed at the administration of life, and argues that this has
two poles: the disciplines and the ‘biopolitics of the population.’ See Foucault (1978),
p 136; Foucault (2003), pp 245–49. However, in recent literature inspired by Foucault,
such as the work of Agamben, the term ‘biopolitics’ has come to designate politics and
power that has ‘life’ as its target.
10 Agamben presents the analysis of sovereignty in the first volume of the project, Homo Sacer:
Sovereign Power and Bare Life as a ‘correction’ or ‘completion’ of Foucault’s analysis of
biopolitics. The work draws upon the idea of biopolitics to explain the normalisation of the state
of exception in the specific instances of totalitarianism and the use of concentration camps by
democratic and totalitarian states. Foucault is also profoundly influential for Agamben’s recently
translated The Kingdom and the Glory. This work builds on Foucault’s lectures on the ‘art of
government’, which developed out of his analysis of biopolitics, by developing a theological
genealogy of government and economy.
11 The Kingdom and the Glory provides a genealogy of the ideas of government and
economy, focusing in particular on their development in and through Trinitarian theology.
Throughout the book, Agamben highlights continuities between the theological paradigm
of government and the governmental practices of liberalism, and in an appendix he argues
that thinkers such as Rousseau and Smith explicitly drew upon this theological heritage in
theorising the problem of government in liberal democracy. In this article, however, I am
not focusing on Agamben’s account of the pre-history of liberal democratic government,
but rather its crisis in the twentieth century. Rather than focus specifically on The
Kingdom and The Glory, I draw on a wide range of sources from across his work in order
to address this issue.
seems appropriate, given Agamben’s use of Schmitt, to draw upon the

German jurist. In Legality and Legitimacy, Schmitt describes the form of
state that dominated nineteenth century Europe as a ‘legislative state’ (or
Rechtstaat in the German tradition). This was a state form in which norms
were the ‘highest expression of community will, and in which ‘not men and
persons rule, but rather, where norms are valid’.12 The pre-eminent body
within the state was parliament, which did not rule directly but rather
established ‘valid norms’, which were then applied by state officials who
acted ‘on the basis of law’.13 In Political Theology, however, Schmitt
attempts to open a space for discretionary state power through an analysis of
the relationship between law, state and the emergency situation. Schmitt
argues that ‘there exists no norm that is applicable to chaos’,14 and hence the
effective operation of the law requires a certain minimum of order. As such,

if an ‘extreme emergency’ threatens the order that law needs to function, the
state may take the decision to suspend the application of the law, thereby
allowing it to take measures that are necessary to the restoration of order and
the reapplication of the law. This decision is ‘sovereign’ because it is legally
unrestricted: when looked at normatively, it ‘emerges from nothingness’.15
Drawing on this framework, Agamben argues that the legal order is a
double structure comprised of ‘two somewhat antagonistic yet functionally
connected elements’:16 the norms of law and the ‘lawless’ or anomic space
of the state of exception. He describes the state of exception as a ‘zone of
indistinction’ between the inside and outside of the law, as the state of
exception is outside the law (it suspends the norms of law) and yet, for
Schmitt, it remains a part of the law (as it makes the application of law
possible). According to Agamben, however, the twentieth century witnessed
a decisive transformation in the role played by the state of exception: citing
the eighth of Walter Benjamin’s ‘Theses on the Philosophy of History’, he
asserts that the ‘state of emergency has become the rule’.17 This is, he
argues, leading to a crisis of the juridico-political tradition as emergency and
normality, anomie and law, have entered into a zone of radical and
permanent indistinction. This undermines the ability of the sovereign
decision on the exception to perform its historical function of producing
anomie to restore law and order18 and, as a result, the ‘great State structures’
have entered ‘into a process of dissolution’.19
State of Exception points to the use of the exception by democratic
countries, and its corrosive effect on the rule of law, as evidence of this
12 Schmitt (2004), p 4.
13 Schmitt (2004), p 4.
14 Schmitt (1985), p 13.
15 Schmitt (1985), p 31.
16 Agamben (2005), p 86.
17 Agamben (1998), pp 9, 12.
18 Agamben (2005), pp 58–59.
19 Agamben (1998), p 12.
process. The use of the state of exception by democracies can be traced as

far back as the declaration of a state of siege during the French Revolution,
the English doctrine of martial law and Lincoln’s suspension of habeas
corpus during the American Civil War. However, this intensified radically
across the liberal democratic world in the period of war and political
instability from 1914–45, which saw the development of a range of
techniques that transferred power from parliament to the executive
(including executive dictatorship, delegation of legislative power and law-
making by administrative decree). The most extreme example of this process
was the collapse of the Weimar Republic:
save for a pause between 1925 and 1929, the governments of the
Republic … made continual use of Article 48, proclaiming a state of

exception and issuing emergency decrees on more than two hundred
and fifty occasions; among other things, they employed it to imprison
thousands of communist militants and to set up special tribunals
authorised to pronounce capital sentences.20
The state of exception also provided a crucial tool in the Nazis’ seizure of
power when they indefinitely suspended the articles of the Weimar
Constitution concerning personal liberties through the ‘Decree for the
Protection of the People and the State’ on 28 February 1933. However, the
regular use of emergency powers was not confined to the tumultuous politics
of the Weimar state, being common across liberal democracies in the period
1914–45.21
Moreover, briefly surveying the constitutional situation in Germany,
Italy, France and the United States, Agamben argues that emergency powers
have continued to play a central role in the legal life of ostensibly
democratic nations since the defeat of fascism and the end of World
War II.22 The transfer of power to the executive involved in these measures
has led to the ‘provisional abolition of the distinction among legislative,
executive, and judicial powers’.23 This means that one can no longer
describe states in which these mechanisms have become entrenched as
parliamentary systems subject to the rule of law: as such, ‘at the very
moment when it would like to give lessons in democracy to different
traditions and cultures, the political culture of the West does not realize that
it has entirely lost its canon’.24
According to State of Exception, the twentieth century saw a decisive
transformation in the juridical structure of ostensibly liberal democratic
20 Agamben (2005), p 15.

21 Agamben (2005a), pp 11–22. See Agamben (2005), pp 12–22; Rossiter (1948); Neocleous
(2008), pp 50–57
22 Agamben (2005), pp 15, 17–18. A more thorough account of the role of states of
emergency in post-war government is found in Neocleous (2008), pp 59–68.
23 Agamben (2005), p 7.
24 Agamben (2005), p 18.
nations as a result of the regular use of emergency powers. While the period
from 1914-45 is the decisive historical moment for the emergence of this
crisis of liberal democratic constitutionalism, we continue to inhabit the
political paradigm that emerged at this time. However, while State of
Exception identifies this crisis, it provides little by way of explaining why
this process has occurred: emphasising the effects of crisis politics and the
use of emergency powers on liberal democratic constitutionalism, the text
lacks a structural analysis of the social, political and economic factors that
are driving the normalisation of the state of exception.
Agamben has often been reproached for a lack of detail in his treatment
of history.25 Agamben, however, asserts that he is ‘not a historian’26 and,
citing Foucault’s analysis of Jeremy Bentham’s design for the panopticon in
Discipline and Punish as a precedent, asserts that his method is to work with
paradigms. These are singular examples (such as the homo sacer or the
musselmann), which allow him to illuminate a broader historical structure: in
the case of Homo Sacer, the limit of law and state, along with the crisis of
law in the twentieth century.27 Agamben’s analytical emphasis on structural
analogies between singularities across spans of time and space helps to
explain the relative dearth of analysis of social structures – indeed, he
explicitly warns that such a method should not ‘be confused with a
sociological analysis’.28 Nonetheless, critics such as Negri and Colatrella
raise an important point. If we are to mobilise Agamben’s work to help us
understand the present political conjuncture, and how we might respond to
this situation, it is important to understand the structural context of the
transformation that he identifies through his paradigmatic method. Indeed,
while Discipline and Punish does deploy the panopticon as a paradigm for
illuminating the nature of disciplinary power, and Foucault is wary of
analysing history in terms of causation, he nonetheless analyses a complex
manifold of historical events and processes that inform and intersect with the
development of disciplinary power, including the incapacity of apparatuses
of juridical power to deal with the social and political transformations of
early modernity, and the development of new forms of knowledge in the
human sciences. Agamben also provides some of this kind of historical
context in Homo Sacer: Sovereign Power and Bare Life, which cites the
development of modern biopolitics and the crisis of the order of European
nation-states after World War I to explain the normalisation of the exception
in the context of totalitarianism and the concentration camps.29 As such, the
narrow focus on the normalisation of the exception at the level of the
juridical code in State of Exception calls out for the kind of structural
analysis I develop in this article.
25 Mills (2008), pp 86–87

26 Raulff (2004), p 610.
27 Raulff (2004), p 610.
28 Raulff (2004), p 610.
29
Agamben (1998), pp 121–22, 131–32.
There are, then, two possible responses to such critiques – the first
exoteric, the second esoteric. The most obvious reason for the normalisation
of the state of exception in the period from 1914–45 is that the state of
exception is, in Schmitt’s terms, meant to be a response to an ‘extreme
emergency’, and this was a period of war and political instability. However,
State of Exception also repeatedly uses the Foucauldian language of
government in order to capture the political transformation that occurs
during this interwar period, which he describes as ‘a laboratory for testing
and honing the functional mechanisms and apparatuses of the state of
exception as a paradigm of government’.30 While State of Exception does not
analyse the relationship between government and the state of exception, it is
clear that it plays a crucial role in his account of the rise of executive rule
and state violence in the twentieth century. As such, we need to turn to

Foucault in order to develop an adequate account of the normalisation of the
state of exception and its continued role in contemporary politics. In
subsequent sections, we will examine the relationship between war and
biopolitics, and the sense in which the state of exception continues to operate
as a ‘technique of government’.31
Michel Foucault on Security and Government

Foucault developed his analysis of government in two lecture series
delivered at the College de France: Security, Territory, Population (1977–
78) and The Birth of Biopolitics (1978–79). These open by contrasting the
‘biopolitics of the population’ with law and discipline as mechanisms
32
through which power operates. Law was the principal technology of power
from the Middle Ages through to the seventeenth or eighteenth centuries. It
operated within the framework of territorial sovereignty, and ruled over
citizens through a normative system of prohibitions that created a division
33
between the licit and illicit. These prohibitions were backed by
punishments exercised – often in spectacular fashion – against the body of
34
the transgressor. Law also rules by governing the individual conceived as a
juridical subject: someone capable of voluntary action, who can thereby be
dissuaded from actions through sanction and punishment.
However, the juridical code gradually came to be supplemented and
transformed by the operation of discipline, which became the dominant
mode through which power operated by the eighteenth century. Discipline
operates within the context of specific institutions (such as prisons, army
barracks and asylums), and intervenes at the level of the individual body
through corrective training in order to produce a normalised individual.
30 Agamben (2005a), p 7.
31 Agamben (2005), pp 2, 6, 14.
32 Foucault (2007), pp 4–23.
33 Foucault (2007), p 5.
34 See, most famously, the execution of Damiens, the regicide at the opening of Discipline
and Punish (Foucault (1977), pp 3–6.
Where the law inherited from the Middle Ages had operated principally
through prohibition, disciplinary regulation determines what one must do by
35
providing a series of prescriptions for behaviour. As Foucault points out,
the development of discipline did not render juridical mechanisms irrelevant,
but rather supplemented and transformed the way they worked. Thus, in the
field of law upon which Foucault focuses – criminal law – the rise of
discipline means that prohibitions against criminal act by a system of social
surveillance, and punishment shifts from spectacular violence inflicted
36
against the body to incarceration and individual correction.
The ‘biopolitics of the population’ began to emerge in the eighteenth
century with the development of apparatuses of security.37 Security measures
are interventions that seek to regulate phenomena affecting the life of a
population, such as disease, pollution or grain scarcity, through policies such

as public health, housing and urban planning.38 The object of intervention of
these measures is a multiplicity of people conceived of as a single ‘species
body’ or ‘population’. The figure of the population emerged in the
eighteenth century, and was connected to the development of new forms of
knowledge such as statistics, economics and demographics, which allowed
for the measurement and analysis of the conditions of life of the population
of a territory as a whole. These forms of knowledge made it possible for the
population to be conceived of as a singular living organism with a particular
set of biological characteristics, including ‘propagation, births and mortality,
the level of health, life expectancy and longevity, with all the conditions that
can cause these to vary’.39
The logic of security envisages and engages with the world in a
fundamentally different way from both law and discipline. Law operates,
according to Foucault, principally at the level of the imaginary – that is, it
‘imagines the negative’, formulating ‘all the things that could not and should
not be done by imagining them’.40 The sphere of operation of discipline is
‘complementary to reality’: the presupposition of disciplinary power is that
‘Man is bad, and has evil thoughts and inclinations etcetera’,41 a fact that
needs to be overcome through corrective training that works with and
against that reality. Security, by contrast, requires ‘standing back sufficiently
so that one can grasp the point at which things are taking place, whether or
not they are desirable. This means trying to grasp them at the level of their
nature, or let’s say, grasping them at the level of their effective reality.’ 42
When the state confronts a problem such as disease or grain scarcity, it may
35 Foucault (2007), p 46.

36
Foucault (2007), p. 4.
37 Foucault (2007), p 6.
38 Foucault (1994), p 216.
39 Foucault (1978), p 139.
40 Foucault (2007), p 47.
41 Foucault (2007), p 47.
42 Foucault (2007), p 47.
not be possible to eliminate the phenomenon, but it can try to regulate it in a

way that is optimal for the life of the population. This requires a thorough
knowledge of the nature of the things that are to be regulated and the
relations between them: the ‘effective reality’ constituted by a whole set of
environmental and social givens (rivers, marshes, hills, individuals, houses,
etc.). The technical problem faced by security measures is that of circulation
and causality: how, given their nature, are different elements likely to
interact with and affect one another? The field within which these
interventions work is what Foucault describes as the ‘milieu’, which is the
‘space of possible events’ 43 in which the interaction between these elements
unfolds over time. Measures of security seek to intervene within the milieu
and guide unfolding processes that are, by their nature, inherently uncertain:
‘in a word, security mechanisms have to be installed around the random

element inherent in a population of living beings so as to optimize a state of
life’.44
After introducing the theme of security and juxtaposing it with his
previous analyses of law and discipline, Foucault’s lectures shift conceptual
registers somewhat, introducing the problematic of the ‘art of government’.45
He argues that the idea of government began to emerge as a central problem
in the political literature of the West in the sixteenth century, and the
essential issue in these works was the introduction of economy into political
practice.46 In Ancient Greek, economy (oikonomia) referred to the art of
household management, which was devoted to successfully arranging the
relations between people and things so as to maximise the wealth and well-
being of the household. The introduction of the idea of government into the
political sphere means that the state is to exercise ‘supervision and control of
its inhabitants, its wealth, and the conduct of all and each, as attentive as that
of a father’s over his household and goods’.47 From the beginning, the task
of government was conceived as being to create the optimal arrangement of
individuals in their relations with their social, environmental and economic
context to ensure their prosperity.48 While government emerged as a problem
in the sixteenth century, it was in the eighteenth century that its theory and
practice accelerated, as a result of the emergence of the figure of the
‘population’, forms of knowledge devoted to analysing the ‘effective reality’
43 Foucault (2007), p 20.

44 Foucault (2003), p 246.
45 Foucault explains the shift in The Birth of Biopolitics. He states that the focus of his
research is the appearance of the population as a figure of knowledge and of political
intervention and this figure is the basis on which biopolitics could be formed. Before
being able to grasp the formation of ‘biopolitics’, however, he asserts that it is necessary
to understand the specific ‘governmental’ regime of liberalism and its emergence from the
absolute state. See Foucault (2008), pp 21–22.
46 Foucault (2007), p 95.
47 Foucault (2007), p 97.
48 Foucault (1994), p 209.
of things (in particular the political economy of the Physiocrats) 49 and the
increasing prominence of apparatuses of security as mechanisms of
intervention and regulation.
According to Foucault, the development of government as a function of
the state, and the corresponding deployment of apparatuses of security, mean
that ‘law recedes; or rather, law is certainly not the major instrument in the
perspective of what government should be’.50 One of the decisive drivers of
this relative decline of law is a transformation in the ends of government and
the means used to attain them. Foucault argues that, for jurists and
theologians, the aim of sovereign authority was the ‘attainment of the
common good’ and the content of this ‘good’ is obedience to the law: ‘the
common good exists when all subjects obey the law without fail, perform
their appointed tasks well and respect the established order’.51 Sovereignty
thus presupposed the idea of an established order: the end of sovereignty is
obedience to this order, and law is the political technology through which
sovereign power maintains and produces this order. The end of government,
by contrast, does not derive from an idea of lawfulness, but rather from the
nature of the things being governed. This gives rise to a series of specific
ends that pertain to the particularity of the things themselves (the greatest
amount of wealth; sufficient means of subsistence; an increase in
population),52 and necessitates a shift in the means used to attain these
multiple ends. As government operates through the administration of the
relationship between men and things such as ‘wealth, resources, means of
subsistence, and, of course, the territory with its borders, qualities, climate,
dryness, fertility and so on’,53 it not only presupposes knowledge of the
particularity of things, but also forms of intervention that are adequate to that
particularity. As such, we see a shift from laws that apply to juridical
subjects to security measures that intervene in a milieu.
As Foucault points out, however, the development of security does not
consign either law or discipline to irrelevance. To take the example of
criminal law again, the development of security supplements the legal code
and disciplinary apparatuses of surveillance and normalisation with
statistical analyses of criminality, and the development of policies that
modify the conditions of life of the population in ways that manage
criminality in the most cost-effective manner: ‘the general question basically
will be how to keep a type of criminality, theft for instance, within socially
and economically acceptable limits and around an average that will be
54
considered as optimal for a given social functioning’. For Foucault, then,
49 The Physiocrats were a school of eighteenth-century French economists who argued for
the existence of natural economic laws. Foucault identifies them as the historical origins
of liberal governmentality and its ideal of not governing too much.
50 Foucault (2007), p 99
51 Foucault (2007), p 98.
52 Foucault (2007), p 99.
53 Foucault (2007), p 96.
54 Foucault (2007), p 5
the emergence of new apparatuses and institutions of power rearticulates the

way in which the older forms operate by placing them within a new
configuration:
there is not the legal age, the disciplinary age, and then the age of
security … in reality, you have a series of complex edifices in which,
of course, the techniques themselves change and are perfected, or
anyway become more complicated, but in which what above all
changes is the dominant characteristic, or more exactly, the system of
correlation between juridico-legal mechanisms, disciplinary
mechanisms, and mechanisms of security.55
With the rise of security, then, there is a ‘governmentalisation’56 of the

state, and the law becomes subordinated to the logic of government,

deployed as a tactic in the administration of things in order to optimise the
well-being of a population:
it is not a matter of imposing law on men, but of the disposition of

things, that is to say, of employing tactics rather than laws, or as far
as possible, employing laws as tactics, arranging things so that this or
that end may be achieved through a certain number of means.57
Biopolitics and (Total) War

Foucault’s lectures on government indicate that political modernity has seen
a transformation of the juridical order as a result of the rise of government
and the apparatuses of security through which practices of government are
put to effect. If, however, ‘apparatuses of security’ have existed since the
eighteenth century, and have been transforming the legal order since that
time, why was it only in the first half of the twentieth century that the
development of security coincided with a crisis of legality? This is a
particularly important question, as Foucault’s analysis of government
indicates that apparatuses of security can and have coexisted with a range of
juridical practices, including those of the absolute state and classical
liberalism. What then, for Agamben, is it that precipitates the normalisation
of the state of exception and its emergence as a ‘technique of government’?
Although Agamben does not explicitly address this problem, in State of
Exception or elsewhere, there is an obvious candidate given that the state of
exception is ostensibly a response to an ‘extreme emergency’: the experience
of war and radical political instability that consumed the democratic world
from 1914 to 1945. In this section, I argue that what is decisive for the
transformation of the legal order that Agamben maps is not simply the
55 Foucault (2007), p 8
56 Foucault (2007), p 109.
57 Foucault (2007), p 99.
existence of war or political crisis, but the particularly biopolitical nature of

warfare in this period.
Foucault touches upon the relationship between twentieth-century
warfare and biopolitics in the final chapter of History of Sexuality:
Volume 1, which famously opposes the sovereign right ‘to take life or let
live’ to biopower (consisting of the disciplines and biopolitics of the
population), which exerts ‘a positive influence on life’ and endeavours ‘to
administer, optimize, and multiply it, subjecting it to precise controls and
comprehensive regulations’.58 Foucault argues that it is the logic and
mechanisms of biopower that have come to dominate the modern state, and
that this has diminished the role played by sovereign power and transformed
the legal system, which comes to operate ‘more and more as a norm’.59 This,
however, presents a paradox: while biopower is dedicated to strengthening

and optimising life, the wars of the twentieth century have been the largest
and bloodiest in history. Foucault resolves this problem by arguing that these
wars were not simply a return of the old sovereign power over death, but a
result of the colonisation of this sovereign function by biopower. The
catastrophic nature and scale of the wars of the twentieth century, and the
emergence of phenomena such as genocide, are explained by the fact that
war is no longer a matter of conflict between sovereigns or states, but a life-
and-death struggle between populations:
Wars are no longer waged on behalf of a sovereign who must be

defended; they are waged on behalf of the existence of everyone;
entire populations are mobilised for the purpose of wholesale
slaughter in the name of life necessity: massacres have become vital.
It is as managers of life and survival, of bodies and the race, that so
many regimes have been able to manage so many wars, causing so
many men to be killed.60
The blurring of the sovereign and biopolitical functions of the state is

clearly an issue that exercises Agamben’s political imagination. This problem is
central to Homo Sacer’s analysis of Nazism and the camp system which, he
asserts, collapsed the distinction between ‘politics’ and ‘police’.61 These are
58 Foucault (1978), p 137.

59 Foucault (1978) , p 144.
60 Foucault (1978), p 137. In Society Must Be Defended, Foucault suggests that it is
specifically racism that allows for the exercise of the state’s sovereign power to kill within
the context of biopower. This is because racism ‘introduces a break into the domain of life
that is under power’s control: the break between what must live and what must die’. The
caesura that racism inscribes within a population then distinguishes between the life that
the state has a positive duty to optimise and the life that it must kill, precisely in order to
optimise the life of the first portion of a population. This analysis could certainly be
extended to Agamben’s account of Nazi biopolitics, but far less so to his analysis of
contemporary security politics.
61 Agamben (1998), p 147. There is a host of literature on Agamben’s adoption of the
interrelationship between the sovereign power to kill and the biopolitical power to foster
terms that Agamben draws from Physiocrats, who were the first thinkers to
seriously develop a form of governmental reason: the ‘police science’ that
characterised the absolute state. While the Physiocrats distinguished between the
‘care and growth of the citizens’ life’62 and the state’s properly ‘political’ task of
protecting the population against internal and external enemies, Agamben argues
that Nazi biopolitics saw the merger of these two functions. While the
fundamental task of the Nazi state was biopolitical (being to secure ‘the racial
traits and hereditary health of the body of the people’),63 it pursued this task both
through ‘positive’ biopolitical programs designed to foster the life of the German
people (including campaigns against tobacco and campaigns for healthy
wholegrain diets)64 and by waging war against the ‘racial enemies’ of the
German people (through laws against intermarriage and procreation, and
measures that suspend their basic rights, including denationalisation, and the
camp system). In Nazi biopolitics, then, the exercise of sovereign power became
colonised by the logic of biopower, and in the process, biopolitics became
thanatopolitical – the power to put to death wielded in the name of fostering life.
The juridical apparatus that allowed the Nazi state to wield this power of death
was the state of exception, which thereby became permanently integrated into
the system of rule.
It is clear, however, that Agamben does not see the indistinction between
sovereignty and biopolitics as being limited to totalitarianism, as he repeatedly
characterises contemporary warfare in terms of an indistinction between politics
and police: in ‘Security and Terror’, for example, he asserts that the reduction of
politics to police that is occurring in contemporary security politics is leading to
a proliferation of violence in which ‘the difference between state and terrorism
threatens to disappear’.65 Similarly, when discussing the NATO bombing of
Yugoslavia and the first Gulf War in a 2004 interview, Agamben cited Simone
Weil to sound a warning about the indistinction between the sovereign power to
wage war and socio-political regulation: ‘it is wrong to consider war to be a fact
concerned solely with external politics—it should also be considered a matter of
internal politics’.66 These are, however, brief references and, aside from the
characterisation of the exception as a ‘technique of government’, State of
Exception does not explicitly analyse the crisis of legality in biopolitical terms.
In order to develop the argument for the importance of biopolitical warfare to the
crisis of legality, then, I turn to Ernst Junger’s essay ‘Total Mobilisation’, which
provides a far more detailed account of the impact of World War I on the social,
life: see, for example, Ojakangas (2005a); (2005b); Dillon (2005); Margaroni (2005);
Patton (2007); Gratton (2006); Rabinow and Rose (2006).
62 Agamben (1998), p 147.
63 Otmar Verschuer (1936), Rassenhgiene als Wissenschaft und Staatsaufgabe, Frankfurt,
p 5 in Agamben (1998), p 147.
64 Proctor (1999).
65
Agamben (2001), para 4.
66 Agamben (2004), p 124.
political and economic organisation of Western democracies than that provided

by either Agamben or Foucault.67
Writing in 1930, Junger argued that World War I was an epochal historical
event that laid waste to the liberal civilisation of the nineteenth century.68
According to Junger, up until the late nineteenth century, the state was able to
wage wars ‘that the people’s representatives were indifferent towards or even
against’,69 as such conflicts required only a partial mobilisation of men and
resources. However, the development of mass democracy and industrialisation in
Europe had led to the emergence of ‘total warfare’. To successfully fight a total
war, the state requires large volumes of troops, along with the uninterrupted
operation of industry, in order to keep the front lines supplied. As such, the
decisive factor in deciding the fate of a total war is not good leadership of troops,
or individual acts of heroism, but the resources of a state and its capacity to
effectively mobilise the economy and the population as a whole.
The development of ‘total mobilisation’, then, led to a transformation in the
relationship between state and society: on the one hand, the state became far
more dependent on the enthusiasm of the populace for war; on the other, the war
effort justified a massive expansion in the powers of the state, allowing the
executive to manage the mobilisation and organisation of the country’s
resources, including the ‘curtailment of individual liberty’, economic planning
and the integration between industry and army.70 Furthermore, total mobilisation
undermines the differences between civilian life and the front line, and between
war and peace: comprehensively integrating civilians and industry into the war
machine turns these into a target; the politics and economies of many countries
67 While Foucault provides the most overt influence on Agamben’s account of political
modernity, Agamben is also influenced by two thinkers of the political right who had
intellectual associations with Junger: Carl Schmitt and Martin Heidegger. Junger was
deeply influenced by Carl Schmitt (Neaman 1999, p 31), and the critique of technology
and mass democracy that he argues are at the root of the phenomenon of total warfare has
strong echoes of Schmitt’s critique of instrumental rationality (Schmitt 1996b, pp 15–18).
His analysis of the interpenetration between state and society also echoes Schmitt’s
account of the socialisation of the state with the rise of the quantitative social state:
Schmitt (1999). Heidegger’s political thought was in turn influenced by Junger’s ‘Total
Mobilisation’, which he interpreted through the problem of nihilism and the will to power
that he read out of Nietzsche: Wolin (1993), p 121. Although this paper analyses
Agamben’s relationship with Foucault, his analysis of biopolitics is also shaped by the
Hegelo-Kojevian problematic of the end of history – for example, see Agamben (2004).
This is a metaphysical as well as a political problem, and is influenced by his engagement
with Heidegger and the problem of nihilism. There is, then, a sense in which the
framework that Agamben employs engages with the theme of total war in a way that
Foucault does not – Agamben presents it as a decisive rupture that brings to light the
emerging nihilism of European civilisation.
68 Junger (1993), p. 125. There are, however, important historical antecedents for total
mobilisation – for example, in the levee en masse of the French Revolutionary War, and
the role of mass mobilisation and industrial power in the American Civil War.
69
Junger (1993), p 125.
70 Junger (1993), p 127.
becomes permanently geared towards the waging of war; and sustained total
mobilisation gives rise, in many countries, to severe economic crises and
political unrest even during ‘peace time’, up to and including open civil war. The
need for total mobilisation generated by industrialised warfare thus meant that
war was no longer an occasional experience that principally concerned the state,
but had become a fundamental structuring principle of the socio-political and
economic orders of the belligerent nations.
The analytical framework that Junger deploys (a critique of modern
technology and its relationship with progress) is different from the Foucauldian
analysis of biopolitics that Agamben draws upon, and the politics that drives
Junger’s work (a fascist aesthetics of war) is profoundly at odds with that of both
Agamben and Foucault. Nonetheless, Junger helps shed light on Agamben’s
account of the normalisation of the state of exception by connecting it to the

biopoliticisation of warfare in the twentieth century warfare that Foucault
highlights. Total war is not simply a conflict between states, but one between
populations, and this transforms the relationship between the sovereign function
of waging war and the biopolitical function of social regulation. Total war
necessitates the total mobilisation of the economic and social resources of a
country for the purposes of war, as it justifies a greater role for the state’s
regulation of economy and society.
The particularly biopolitical nature of total war thus plays a crucial role
in the deployment of emergency measures as a mechanism of social,
economic and political regulation, justifying the ‘exceptional’ legal
measures that allow the state to quell political opposition, put down strikes,
and organise production. However, such measures continue to be used once
formal hostilities between nation-states are at an end as a result of the social,
political, and economic crises that emerge in many countries in the wake of
World War I (along with, of course, a reluctance on the part of the state to
relinquish newly acquired powers).71 As a result, there is a blurring of the
‘normal’ juridical powers of the state and those that are considered
exceptional. Along with the continuation of political crisis (up to and
including revolution and civil war), the continued use of ‘exceptional’ legal
powers permanently transforms the relationship between state and society,
and produces an indistinction between war and peace – or, in Agamben’s
terms, between the state of emergency and the normal situation.
Forms of Exceptionalism
Agamben’s ‘brief history’ of the state of exception draws heavily on Clinton
Rossiter’s seminal 1948 work, Constitutional Dictatorship. The central
question of Rossiter’s work is ‘Can a democracy fight a successful total war
and still be a democracy when the war is over?’ 72 Rossiter argues that the
‘incontestable facts of history’73 illustrate that ‘the institutions and methods
71 Agamben (2005), pp 12–22; Rossiter (1948), pp 295–96.

72 Rossiter (1948), p 3.
73 Rossiter (1948), p 3.
of dictatorship have been used by the free men of the modern democracies
during periods of national emergency’.74 Agamben, however, asserts that
this is contradicted by Rossiter’s own conclusions: that ‘the instruments of
government depicted here as temporary ‘crisis’ arrangements have in some
countries, and may eventually in all countries, become lasting institutions’. 75
According to Agamben, the period of total war has resulted in a profound
transformation in the juridical and political structures of the belligerent
nations. The decisive question, then, is how the state of exception continues
to operate in the post-war political situation, and how this relates to practices
of government. Agamben, however, tends to speak about the post-war
political situation in very general terms (the exception has ‘become the rule’
and is a ‘technique of government’ that has ‘reached its maximum
worldwide deployment’).76 In this section, I develop on the previous analysis

of total war to specify a number of different political and juridical roles
played by the state of exception in contemporary politics.
One of the decisive effects of total war, according to Junger, was the
tendency to demolish the difference between war and peace – or, in
Agamben’s terms, between the emergency and normal conditions. Similarly,
Agamben argues that we are currently faced with the seemingly
‘unstoppable progression’ of a ‘global civil war’.77 Although Agamben does
not explain what he means by this in State of Exception, he does flesh the
idea out in Means Without Ends in two different directions. The first of these
is the emergence of the ‘sovereign police’.78 Modern political philosophy has
historically distinguished between the state’s right to use coercive violence
against its citizens and the sovereign right to go to war against enemy states.
This was accompanied by a distinction between the legal regulation of
violence within a state’s territory and the regulation of war between states
through international law.79 Within the contemporary political horizon,
however, states no longer declare war against one another, and war is
disguised as a police operation, in which the ‘outright invasion of a
sovereign state’ is ‘presented as an act of internal jurisdiction’.80 This, for
Agamben, confirms Carl Schmitt’s assertion that ‘every war in our time has
become a civil war’.81
74 Rossiter (1948), p vii.

75 Rossiter (1948), p 313.
76 Agamben (2005), p 87.
77 Agamben (2005), p 2.
78 Agamben (2000), pp 103–8
79 Agamben (2000), p 105
80 Agamben, (2000), p 85.
81 Agamben (2000), p 85. For Schmitt, this is connected to the dissolution of the European
division of global space and the failure of the global order that emerged in the twentieth
century to bracket warfare: see Schmitt (2003), p 246. Hardt and Negri make a similar
claim that the proliferation of wars across the globe should be seen as a global civil war
within a single imperial terrain: Hardt and Negri (2004), pp 3–8.
The second sense in which Agamben deploys the idea of ‘global civil
war’ pertains not to the exercise of state violence, but to contemporary forms
of social regulation: state power is, he argues, now principally founded on
the ‘control of appearance’, and as a result social life has become the site of
a ‘global civil war’ whose ‘storm troopers are the media, whose victims are
all the peoples of the Earth’.82 In this sense, ‘civil war’ does not refer to a
military conflict being waged between two parties vying for control of the
state, but to contemporary forms of biopolitical regulation that seek to
control the forms of life within the state through the manipulation of ‘public
opinion’. While this description of contemporary social regulation as a civil
war is rather metaphorical, what is at stake in it is the attempt to mobilise,
for radical political ends, the language of threat and war that so dominates
contemporary political discourse.

Agamben argues that ‘the voluntary creation of a permanent emergency
… has become an essential practice of contemporary states, including the so-
called democratic ones’.83 Here, the state of exception operates as a
‘technique of government’ in that the production and manipulation of a
sense of emergency is used as a tool of socio-political regulation. The
generalisation of actual combat through the development of the ‘sovereign
police’ plays a crucial role in the normalisation of the state of emergency as
a technique of government. War plays an extraordinarily useful political
role, as it helps to rally support for the state and to quell opposition, and can
aid in justifying policies and legal measures that would not be acceptable
without the sense of an immediate and pressing danger.84 Invoking the
language of warfare for political problems that fall far short of actual warfare
can also help to produce many of the same political effects as the threat
posed by combat, allowing for the ‘total mobilisation of social forces for a
united purpose that is typical of warfare’.85 Indeed, since the period of total
war, there has indeed been a continued and extensive militarisation of
political discourse, from the Cold War through to other so-called ‘wars’ (on
poverty, drugs, terror and so on), and the language of existential threat and
emergency is such extraordinarily common political currency that it is
deployed to frame all kinds of social and economic problems, from football
hooliganism to famine, flood and child abuse.86
Agamben’s description of contemporary social regulation as a form of
‘civil war’ is an attempt to reappropriate this kind of political language. The
media spectacle of war (and war-like states of emergency) presents the
existence of a threat that authorises state action to protect the population. For
82 Agamben (2000), p 94.

83 Agamben (2005), p 2.
84 Naomi Klein’s The Shock Doctrine provides an extensive journalistic account of the
central role that the exploitation, and indeed creation, of crises has played in the
imposition of radically unpopular neo-liberal economic policies by states and international
bodies such as the IMF and World Bank: see Klein (2009).
86
Neocleous (2008), p 68.
Agamben, however, the major threat that we face is the political and
economic status quo: the contemporary ‘spectacular-democratic’ form of
world organisation ‘actually runs the risk of being the worst tyranny that
ever materialized in the history of humanity, against which resistance and
dissent will be practically more and more difficult – and all the more so in
that it that is increasingly clear that such an organisation will have the task of
managing the survival of humanity in an uninhabitable world’.87 The
decisive conflict of our time is thus not that between states or ideologies, or
between state terrorism and the terrorism of non-state actors; rather, it is the
conflict between the forces preserving the political and economic status quo
(the state, ‘mercantile economy’ 88 and media) and a global populace whose
common interest in an inhabitable world is being profoundly endangered.
This rather lopsided ‘civil war’ is being waged by those forces interested in
the preservation of the current order through modes of biopolitical regulation
that perpetuate prevailing forms of life and close down the possibility of the
alternatives emerging.
What, then, are the legal transformations that accompany the
development of the state of exception as a ‘technique of government’?
Rossiter identifies three key juridico-political transformations that occurred
during the period of total war: ‘the concentration of power in the executive,
the government invasion of the field of free enterprise, and the increasing
encroachment of the state upon the liberties of its citizens’.89 Each of these,
Rossiter argues, is ‘clearly repugnant to the western democratic tradition’
and the maintains they have gained much of their impetus ‘from the repeated
emergencies of the past thirty years’.90 It is the deprivation of individual
liberties that has played the largest role in contemporary debates around
security politics, with a particular focus on the suspension of civil and
political rights and the use of state violence to respond to ostensible ‘threats
to security’ such as political militants and asylum seekers. This is also
central to Agamben’s analysis of the exception, evident in his infamous
claim that an individual captured in the state of exception is reduced to ‘bare
life’ and exposed to arbitrary state violence;91 his assertion that the inmates
of Camp X-Ray in Guantanamo Bay are an example of this bare life;92 and
his argument that the regular use of the exception corrodes democracy.93 In
this sense, the ‘state of exception’ currently operates as a ‘technique of
government’ in that it is regularly deployed by contemporary democratic
states in order to eliminate what it conceives of as threats to the status quo.
87 Agamben (2000), p 86.

88 Agamben (1993), p 80.
89 Rossiter (1948), p 296.
90 Rossiter (1948), p 296.
91 See Agamben (1998), in particular pp 81–6.
92 Agamben (2005), p 4.
93 Agamben (2001), para 5.
Both the permanent state of emergency and the regular suspension of

civil and political liberties closely mirror Schmitt’s analysis of the
suspension of the law as a response to an ‘extreme emergency that threatens
the existence of the state’.94 However, Agamben emphasises that the
normalisation of the exception involves a decisive transformation in the
relationship between the exception and the ‘normal’ order. For Schmitt, the
state of exception is meant to be an occasional response to a situation of
existential crisis. Agamben points out that the sense of emergency and the
curtailment of liberties are now both integrated into the continuum of
governmental apparatuses deployed for the management of populations. The
use of the state of exception is no longer guided by the attempt to eliminate
the emergency and restore law and order, but rather the governmental
purpose of guiding the development of a problem and ‘securing’ its

consequences.95 As a result, Agamben contends, contemporary security
politics ‘secretly works towards the production of emergencies’.96
There is, however, a very different sense in which the juridical practices
of the state of exception coincide with and have been integrated into
practices of government. A number of the measures that State of Exception
lists as being indicative of the normalisation of the state of exception (such
as delegation of legislative power and law-making by administrative decree)
are practices associated not with the politics of emergency or the deprivation
of civil and political rights, but the rise of the regulatory or administrative
role of the state. The transformation of the state poses a challenge for two
other essential components of the rule of law in classical liberalism: the
sanctity of property and contractual rights (as classical liberalism is ‘in
principle’ against state intervention in society and economy);97 and the idea
of the rule of law as the rule of ‘impersonal, that is, general and pre-
established, norms that are meant to be lasting and have a definable,
determinable content’.98 While both of these classical liberal ideals were
never realised, are politically problematic and have been subject to thorough
critique,99 it is nonetheless generally recognised by legal thinkers of both left
94 Schmitt (1985), p 12.

97 Neumann (1957), p. 41.
98 Schmitt (2004), pp 3–4.
99 For example, Foucault argues ‘free trade’ could not operate without a host of political and
economic prerequisites, such as sufficient buyers and sellers, a lack of monopolies and
enough ‘competent, qualified and politically disarmed workers’. While the laissez-faire
philosophy of classical liberalism was undergirded by a philosophical naturalism, in which
man’s ‘tendency to truck and barter’ would flourish if simply left alone, in practice, ‘free
trade’ could not operate without forms of state intervention to support the operation of the
market: ‘we have then the conditions for the creation of a formidable body of legislation
and an incredible range of governmental interventions to guarantee production of the
freedom needed in order to govern’: Foucault (2008), p 64. Franz Neumann points to the
limitations of the idea of the rule of general laws in practice, arguing that as the
and right that the period 1914–45 saw a shift in the juridical practices of
liberal democratic states,100 as economic planning, market regulation and the
provision of welfare gave the state a more direct and explicit economic and
social role.
There are two major points of contact between the state of exception
and the development of governmental practices in the administrative state.
The first of these is historical, as the origins of these measures lie in the
period of total war. Economic planning during both world wars was justified
by the threat of the enemy, and many of the market interventions of the
interwar years were a response to the profound economic crises of the Great
Depression and the political crisis to which this gave rise. Agamben
repeatedly emphasises the link between these economic measures and the
juridical practices of the state of exception: the Weimar German state

responded to the Great Depression through decrees under Article 48, while
the New Deal ‘was realized by delegating to the President an unlimited
power to regulate and control every aspect of the economic life of the
country’.101 In the meantime, administration has become an essential
characteristic of the contemporary state and its law-making, and has been
severed from the justification of such measures in a response to emergency.
The second point of articulation between the exception and
administration, and the one that continues today, is structural. The classical
liberal ideal of the rule of law emphasises order, regularity and certainty, as
opposed to the arbitrariness of royal rule. The generality of the law
ostensibly eliminates discretion by ensuring that like cases are treated alike;
combined with the stability of law, this provides certainty in the exercise of
state power and guarantees a ‘minimum of personal and political liberty’.102
It is not only the form of law that is rational, but the process that produces
them: the rule of law was meant to be the rule of parliamentary norms,
which are the result not of executive whim, but the rational deliberation of
parliament as the ‘embodiment of universal Reason’ and ‘the general will
and the universality of the people-nation’.103
supposedly natural ‘harmony and equilibrium’ of society and economy were in fact
political products, administrative measures were always a necessary means of governing
when the rule of general rules failed: Neumann (1957), p 41.
100 Indeed, even Marx – who emphasises the decisive role that state violence played in the
emergence and consolidation of capitalism in the form of ‘primitive accumulation’ –
argues that once capitalism becomes entrenched as an mode of production, the system
largely reproduces itself through the ‘silent compulsion’ of economic relations, and that
‘extra-economic force is used only in ‘exceptional’ cases: Marx (1990), p 899. Within the
Marxist tradition, the shift to the administrative state is generally linked to the transition
from competitive to monopoly capitalism: see Poulantzas (2000), pp 217–31; Neumann
(1957), pp 47–59.
101
Agamben (2005), p 22.
102 Neumann (1957), p 42.
103 Poulantzas (2000), p 218.
However, the economic role of the regulatory state transformed the

nature of the state’s legal order, resulting in a vast expansion in the amount
of legislation, the production of more specific and detailed juridical rules and
the constant revision of the legislative code to cope with technological and
social change. This correlates with a shift in the centre of power from
parliament to the executive and bureaucracy, which became the engine for
the formulation of law, and took on the power to create legally binding rules
through means such as delegated legislation.104 It also results in a shift in the
form of law that characterises liberal democracies: the economic role of the
state is not modelled on a stable set of general rules but, as Nicos Poulantzas
writes, ‘on specific acts of regulation, corresponding to clearly-defined
conjunctions, situations, and interests. The multiplicity of socio-economic
problems tackled by the State also requires more and more elaborate
concretization of these general norms’.105
The specificity of acts of regulation in the administrative state conjoins
the problematic of government with that of the state of exception. In
Schmitt’s analysis, the ‘exception’ is singular because it is a situation that
threatens the existence of the state, and that cannot be dealt with by the
normal rules of law. As such, the state suspends the application of juridical
norms and responds to the demands of the particular situation through
‘decrees, provisions and measures that are not formally laws’.106 The
administrative attention to the singular is, however, something that has
characterised the idea of oikonomia since its Greek origins: as Agamben
points out, for Aristotle, household management is ‘a matter of an activity
not bound to a system of rules’, which ‘implies decisions and orders that
cope with problems that are each time specific’.107 Within the paradigm of
government, then, each case is exceptional in that it must be dealt with in a
way that responds to the singularity of the situation. This explains the fact
that the term oikonomia came, in the canon law of the Byzantine Church in
the sixth and seventh centuries, to take on the meaning of an exception to the
law, a dispensation that relieved one of the consequences of a strict
application of the law: ‘the paradigm of government and the state of
exception coincide in the idea of an oikonomia, an administrative praxis that
governs the nature of things, adapting at each turn, in its salvific intent, to
the nature of the concrete situation against which it has to measure itself’.108
As we have seen through Foucault, liberal modernity sees a massive
expansion of government with the development of apparatuses of security,
which aim to grasp things at the level of their ‘effective reality’, meaning in
the specificity of their nature, their concrete relations with other things and
their possibilities of action. The development of and eventual dominance of
104
Poulantzas (2000), p 218.
105 Poulantzas (2000), p 218. See also Neumann (1957), p 52 on the relationship between
monopoly capitalism and legislation that addresses particular situations.
106 Agamben, (2005), p 38.
107 Agamben (2011), pp 17–18.
108 Agamben (2011), p 50.
apparatuses of security as a mode of social regulation in modernity leads to a

transformation of the legal system as the law is subordinated to government
and comes to be deployed as a tactic in the administration of things. The
emergence of the regulatory state, then, is a decisive development in this
process, as the law is transformed by its explicit and direct use as a tactic in
the administration of things. The legal structures of the regulatory state are
‘exceptional’ not simply because they first emerged in the context of
political and economic crisis, but because they have been thoroughly
‘governmentalised’: a form of law based not upon generality, order and
identity, but upon the singularity, specificity and differences that exist in
particular conjunctures.109
Agamben on Liberalism, Security and the Government of Disorder

The issue of why the regulatory transformation of law occurred is hotly
contested. Thinkers of the right are often deeply critical of the mass democracy
and welfare state that emerged out of World War I for undermining the
distinction between state and civil society. Schmitt, for example, argued that
this had weakened the Weimar state and made it vulnerable to political crisis,
justifying an argument for a fascist state,110 while Friedrich Hayek argued that
the social state undermined individual freedom, expanded the scope of state
power and ultimately contributed to the development of totalitarianism.111
Marxist theorists, by contrast, tend to argue that the driving factor of this
transformation of the relationship between state and society was the transition
from competitive to monopoly capitalism. For example, focusing on the rise of
particularist regulation in the Weimar period, Franz Neumann argues that
general law presupposes economic equality between contracting parties. The
development of monopoly capitalism undermines this equality, as the
existence of a monopoly confronts the state ‘with an individual situation’ that
is ‘pointless to regulate’ through a general law.112
The stakes of these debates are high, as different accounts of the
emergence of administration lead to very different political responses.
Agamben’s focus on the effects of the period of total war on the juridical
structure of the classical liberal state, and the lack of an economic analysis
that would contextualise this, brings the explicit text of his work close to that
of the liberal and reactionary right. However, Agamben’s most explicit
treatment of the relationship between government and the exception in the
109 Hardt and Negri make a similar point about globalised liberalism, when they argue that
the order of globalised liberalism is not reproducing the juridical structures of rule
characteristic of the modern democratic nation-state, but is, instead, seeing the emergence
of structures of ‘global governance’ that ‘have the flexibility and fluidity to constantly
adapt to changing circumstances. They do not need stability and regularity to rule, but
instead are designed to manage crises and rule over exceptional circumstances.’ Hardt and
Negri (2009), p 372.
110 Schmitt (1932)
111 Hayek (1944)
112 Neumann 1957, p. 52.
contemporary political situation appears in his 2001 lecture, ‘Security and

Terror’; while the lecture opens by noting that the centrality of security to the
modern state goes back to Hobbes,113 it argues that contemporary practices of
exceptionalism are not a regression to an authoritarian past, but rather a new
and extreme phase of security politics produced by liberal democratic
modernity. Foucault’s work shows that ‘since measures of security can only
function within a context of freedom of traffic, trade, and individual initiative
… the development of security coincides with the development of liberal
ideology’.114 ‘Security and Terror’ thus makes it clear that Agamben believes
that the processes undermining liberal constitutionalism are themselves a
product of the liberal tradition. As such, we conclude by turning to this lecture
in order to examine how Agamben frames the legally ‘illiberal’ nature of
contemporary liberalism.
‘Security and Terror’ argues that the governmental logic of security has
come to dominate contemporary politics, and this corresponds to a
proliferation of state violence and a radical corrosion of the juridico-political
functions of the liberal democratic nation-state. There are two specific
threats to the order of the liberal democratic nation-state that ‘Security and
Terror’ highlights in this regard. As in State of Exception, Agamben asserts a
link between government, the exception and the crisis of liberal democracy:
measures of security ‘require constant reference to a state of exception’ and
as such that ‘in the long run, they are irreconcilable with democracy’.115
However, ‘Security and Terror’ also links the collapse of the classical form
of warfare to a rise in state lawlessness and to practices of government. As
Agamben argues in Means Without Ends, the end of modern warfare and the
rise of the sovereign police mean that belligerent countries can operate
outside the laws that once regulated the exercise of violence in war.116 In
‘Security and Terror’, however, Agamben links this phenomenon to the
development of security: ‘measures of security lead to an opening and to
globalization’,117 and the implied end-point of the development of security as
the dominant paradigm of global governance is ‘a new planetary order which
is in truth the worst of all disorders’.118
As we have seen, Foucault argues that the development of security
gives rise to a relative decline in the role of law in governance, and that law
increasingly is deployed as a tactic in the administration of things. He
contrasts law and security through a host of different problems related their
113 As Paul Patton argues, Hobbes’ focus on the life and safety of individuals is quite distinct
from Foucault’s account of security as ‘the achievement and maintenance of an overall
equilibrium or regularity in a population’: Patton (2007), p 277 (n 9). Nonetheless,
‘Security and Terror’ draws these two different conceptions of security together in a quite
productive fashion.
114
Agamben (2001), para 1.
116 Agamben (2000), p 106.
respective ends, means and techniques. Historically, law was the political
technology used by sovereign authority to obtain its end: to produce respect
for an established order. As a mechanism of power, law operates at the level
of the imaginary; it involves a normative code that produces a binary
division between licit and illicit, which is then backed by sanctions aimed at
the juridical subject (often inflicted, until the development of discipline, as a
spectacular punishment upon the body). Agamben’s work is likewise
characterised by a historical narrative in which the ascendance of security
corresponds to a transformation and decline in the function of law. However,
he both simplifies and reframes this relationship in terms of an over-arching
opposition: law (along with discipline) is devoted to the production of order,
119
while security ‘wants to regulate disorder’.
While this analysis lacks the specificity and detail that Foucault
provides, by focusing on the relationship between law and order, Agamben
is able to bring the problem of the state of exception into conjunction with
the idea of government. Drawing mainly upon Schmitt rather than Foucault,
Agamben characterises the law in terms of the application of general rules to
particular situations,120 arguing that these rules cannot function in conditions
of chaos or civil war, and hence that the law presupposes the production of a
state of exception when the order of law is threatened by an emergency.
While Schmitt is renowned for his hostility to liberalism and the rule of law,
he advocates the use of the state of exception for the good of the law: the
exception is the juridical apparatus that allows for the restoration of law and
order when all else fails. Agamben argues, however, that the normalisation
of the state of exception undermines the capacity of sovereignty to restore
law and order. As a result, we face a politics of permanent disorder.121 This
is not, however, ‘chaos’ in the sense of an originary state of nature or civil
war that arises from a lack of government, but rather a form of government
or rule made possible by apparatuses of security. While the law presupposes
and produces order, and the theory of the legal liberalism emphasises the
predictability and order that general rules provide, apparatuses of security
are flexible measures that respond to the singularity and specificity of
concrete situations, seeking to profitably guide the inherently uncertain
processes and flows that are constitutive of a milieu.122 In Agamben’s terms,
these security apparatuses allow for the ‘administration of the absence of
order’,123 meaning that they allow for the rule over or management of the
permanent state of exception.

120 Agamben (1998), pp 17–21; Agamben (2005), pp 39–40.
121 Agamben (2005), p 58.
122 Agamben in Raulff (2004), p 611; see also Agamben (2011), p 124.
123 Agamben in Raulff (2004), p 611; see also Agamben (2011), p 124.
Conclusion
Agamben argues that the twentieth century saw a radical crisis of the
juridical form of the liberal democratic state. This account of contemporary
politics has most often been read in terms of the relationship between the
rule of law and the sovereign violence of the state, leading to charges that
Agamben fetishises law and sovereignty, and that this renders him incapable
of adequately explaining the causes of the legal crisis or describing the
nature of contemporary security politics. In this article, I have emphasised
the fact that the normalisation of the state of exception equates, for
Agamben, to its transformation into a ‘technique of government’, and have
drawn from and built upon fragments disseminated across his work to
develop an account of the biopolitical context underpinning the crisis of the
legislative state, and to analyse the nature of the ‘exceptional’ state.

Drawing on Foucault, I showed that techniques of security are a
correlate of the problem of government; that they have become the dominant
mode in which power operates; and that their dominance corresponds to a
transformation in the nature and operation of law. Nonetheless, Foucault
argues that security apparatuses first emerged in the eighteenth century and
coexisted with both the absolute state and the legally limited state of
classical liberalism, raising the question of why the crisis of legality emerges
in the period 1914–45. I have argued that the only causal mechanism that
appears in Agamben’s work that can explain this phenomenon is the
experience of total war, which blurs biopolitical regulation and the sovereign
function of waging war (a concern he shares with Foucault) and transforms
the nature of the legal order through the development of the administrative
or regulatory state and measures that restricted both political and economic
liberties (concerns that he derives from Schmitt).
This analysis suggests possibilities for rethinking what is at stake in two
of the most discussed problems in debates around the Homo Sacer project:
Agamben’s relationship with Foucault, and the application of his thought to
the contemporary political conjuncture. Many of the commentators on
Agamben and Foucault emphasise radical theoretical differences between
them, to the point that a dialogue between the two on biopolitics has been
declared ‘impossible’.124 One of the most common criticisms is that, where
Foucault’s emphasis on difference and discontinuity allows him to provide
nuanced historical accounts of political events and discursive formations,
Agamben tends to ‘essentialise’ the political, leading him to an emphasis on
historical continuities that makes him incapable of grasping the particularity
and contingency of historical events.125 It is certainly true that State of
Exception focuses narrowly on the relationship between the state of
124 Ojakangas (2005), p 5.

125 For versions of this argument, see Deranty (2004), paras 8–10; Rose and Rabinow (2006),
pp 200–3; Oksala (2010), p 41. Michael Dillon puts the difference between the two as that
between the ‘ontologisation’ and the ‘historicisation’ of the political: see Dillon (2005),
p 42. Agamben is also sometimes accused of casting contemporary events as the necessary
or destined outcome of the ‘logic of sovereignty’: see Oksala (2010), pp 36, 40.
exception and the rule of law, that its description of the transformation of the
legal system lacks detail, and that Agamben often tends to portray the crisis
of legality in very general terms, such as the claim that the state of exception
‘has become the rule’ or ‘reached its maximum worldwide extension’. In this
article, however, I have taken seriously Agamben’s claim to be working in
dialogue with Foucault and, by reading the two thinkers together, I have
developed an account of the specific historical transformation that he places
at the heart of his account of twentieth century legal history, and teased out
the different dimensions of his vision of post-war security politics.
Much of the literature around the relationship between Agamben and
Foucault has been critical of Homo Sacer’s emphasis on sovereignty as a
theoretical paradigm for understanding contemporary power relations.126 If
Agamben has been, as Negri and others charge, obsessed with a suffocating
and totalitarian image of sovereign power, then his recent work on the
genealogy of government and economy in The Kingdom and the Glory
would mark a decisive break with his previous political concerns, and one of
the work’s central conclusions – that ‘the central mystery of politics is not
sovereignty but government’127 – would represent a major about-face. What
my analysis indicates, however, is that the intersection between the
Foucauldian problem of government and the Schmittean problem of the
exception has played a key role in his thinking about contemporary politics
since his 2001 lecture ‘Security and Terror’, and that it forms the matrix of
intelligibility for his account of the normalisation of the state of exception.
While the problems of government and sovereign violence against a bare life
deprived of rights do not exactly coincide, what allows Agamben to bring
these two issues together is the philosophical problem of the relationship
between the general and the particular: where law is predicated on and
produces order, practices of government treat every case as a singular or
exceptional event. This analysis also suggests that we need to rethink what is
at stake in Agamben’s account of the crisis of legality: not only a politics of
state violence and permanent emergency, but also the more quotidian
problem of administration and regulation.
References
Giorgio Agamben (1993) The Coming Community, University of Minnesota Press.
Giorgio Agamben (1998) Homo Sacer: Sovereign Power and Bare Life, Stanford University Press.
Giorgio Agamben (1999) Potentialities: Collected Essays in Philosophy, Stanford University Press.
Giorgio Agamben(2000) Means Without End: Notes on Politics, University of Minnesota Press.
Giorgio Agamben (2001) ‘Security and Terror’ 5(4) Theory & Event, http://muse.jhu.edu.
Giorgio Agamben (2004) The Open: Man and Animal, Stanford University Press.
126 See Neal (2004), p 373; Rabinow and Rose (2006), pp 200–3; Genel (2006), pp 60–1;
Dillon (2005), pp 39–41. For a similar critique of Agamben’s thought as failing to account
for complexity – although not from a Foucauldian perspective – see Conolly (2007), p 31.
127 Agamben (2011), p. 276.
Giorgio Agamben (2005a) State of Exception, University of Chicago Press.

Giorgio Agamben (2007) ‘The Work of Man’, in Steven DeCaroli and Matthew Calarco (eds),
Giorgio Agamben: Sovereignty and Life, Stanford University Press.
Giorgio Agamben (2011) The Kingdom and the Glory: For a Theological Genealogy of Economy and
Government, Stanford University Press.
Anthony Burke (2007) Beyond Security, Ethics and Violence: War Against the Other, Routledge.
Steven Colatrella (2011) ‘Nothing Exceptional: Against Agamben’ (9)1 Journal for Critical
Education Policy Studies 97.
William Connolly (2007) ‘The Complexities of Sovereignty’, in Matthew Calarco and Steven
DeCaroli (eds), Giorgio Agamben: Sovereignty and Life, Stanford University Press.
Mitchell Dean (2004) 'Four Theses on the Powers of Life and Death' 5 Contretemps 16.
Jean-Phillipe Deranty (2004) ‘Agamben’s Challenge to Normative Theories of Modern Rights’
3(1) borderlands, www.borderlands.net.au/vol3no1_2004/deranty_agambnschall.htm.

Bulent Diken and Carsten Bagge Laustsen (2005) The Culture of Exception: Sociology Facing the
Camp, Routledge.
Michael Dillon (2005) ‘Cared to Death: The Biopoliticised Time of Your Life’ 2 Foucault Studies 37.
David Dyzenhaus (2006) The Constitution of Law: Legality in a Time of Emergency, Cambridge
University Press.
Michel Foucault (1977) Discipline and Punish: The Birth of the Prison, Penguin.
Michel Foucault (1978) The History of Sexuality. Vol. 1: An Introduction, Penguin.
Michel Foucault (2003) Society Must Be Defended: Lectures at the College De France, Picador.
Michel Foucault (2007) Security, Territory, Population: Lectures at the Collège De France,
1977–78, Picador.
Michel Foucault (2008) The Birth of Biopolitics: Lectures at the College de France 1978–79, Picador.
Peter Gratton (2006) ‘A Retroversion of Power: Agamben via Foucault on Sovereignty’ 9(3) Critical
Review of International Social and Political Philosophy 445.
Michael Hardt and Antonio Negri (2004) Multitude: War and Democracy in the Age of Empire,
Penguin.
Michael Hardt and Antonio Negri (2009) Commonwealth, Belknap Press.
Friedrich Hayek (1944) The Road to Serfdom, Phoenix Books.
Nasser Hussain (2007) ‘Beyond Norm and Exception: Guantanamo’ 33 Critical Inquiry 734.
Jeff Huysmans (2008) ‘The Jargon of Exception – On Schmitt, Agamben and the Absence of Political
Society’ 2 International Journal of Political Sociology 165.
Fleur Johns (2005) ‘Guantanamo Bay and the Annihilation of the Exception’ 16 European Journal of
International Law 629.
Ernst Junger (1993) ‘Total Mobilisation’, in R Wolin (ed), The Heidegger Controversy: A Critical
Reader, MIT Press.
Naomi Klein (2007) The Shock Doctrine: The Rise of Disaster Capitalism, Penguin.
Samuel Levinson (2005–06) ‘The Deepening Crisis of American Constitutionalism’ 40 Georgia Law
Review 889.
Maria Margaroni (2005) ‘Care and Abandonment: A Response to Mika Ojakanga's “Impossible
Dialogue on Bio-Power:Agamben and Foucault”’ 2 Foucault Studies 29.
Claudia Minca (2006) ‘Giorgio Agamben and the New Biopolitical Nomos’ 88(4) Geografiska
Annaler: Series B, Human Geography 387.
Catherine Mills (2008) The Philosophy of Agamben, Acumen.
Andrew Neal (2004) ‘Cutting off the King’s Head: Foucault’s Society Must Be Defended and the
Problem of Sovereignty’ 29 Alternatives 373.
Andrew Neal (2006) ‘Foucault in Guantanamo: Towards an Archaeology of the Exception’

37(1) Security Dialogue 31.
Elliott Neaman (1999) A Dubious Past: Ernst Jünger and the Politics of Literature After Nazism,
University of California Press.
Mark Neocleous (2008) Critique of Security, Edinburgh University Press.
Franz Neumann (1957) ‘The Change in the Function of Law in Modern Society’, in Franz Neaman (ed),
The Democratic and Authoritarian State: Essays in Political and Legal Theory, The Free Press.
Mika Ojakangas (2005) 'Impossible Dialogue on Bio-Power: Agamben and Foucault' 2 Foucault
Studies 5.
Walter J Oakes (1944) ‘Towards a Permanent War Economy?’ Politics, February.
Mika Ojakangas (2005) ‘The End of Bio-Power? A Reply to My Critics’ 2 Foucault Studies 47.
Johanna Oksala (2010) ‘Violence and the Biopolitics of Modernity’ 10 Foucault Studies 23.
Paul Patton (2007) ‘Agamben and Foucault on Biopower and Biopolitics’, in Matthew Calarco and
Steven DeCaroli (eds), Giorgio Agamben: Sovereignty and Life, Stanford University Press.
Jean-Claude Paye (2007), Global War on Liberty, Telos.
Nicos Poulantzas (2011) State, Power and Socialism, Verso.
Robert N Proctor (1999) The Nazi War on Cancer, Princeton University Press.
Paul Rabinow and Nikolas Rose (2006) ‘Biopower Today’ 1(2) BioSocieties 195.
Ulrich Raulff (2004) ‘Interview with Giorgio Agamben – Life, a Work of Art Without an Author: The
State of Exception, the Administration of Disorder and Private Life’ 5(5) German Law Journal 611.
Clinton Rossiter (1948) Constitutional Dictatorship: Crisis Government in the Modern Democracies,
Princeton University Press.
Carl Schmitt (1985) Political Theology: Four Chapters on the Concept of Sovereignty, University of
Chicago Press.
Carl Schmitt (1996) The Concept of the Political, University of Chicago Press.
Carl Schmitt (1996) Roman Catholicism and Political Form, Greenwood.
Carl Schmitt (1999) Four Articles: 1931–1938, Plutarch Press.
Carl Schmitt (2003) The Nomos of the Earth: The International Law of the Ius Publicum Europaeum,
Telos Press.
Carl Schmitt (2004) Legality and Legitimacy, Duke University Press.
Matthew Sharpe (2005) ‘“Thinking of the Extreme Situation …” on the New Anti-Terrorism Laws, or
against a Recent (Theoretical and Legal) Return to Carl Schmitt’ 24 Australian Feminist Law
Journal 95.
Vacarme (2004) ‘“I Am Sure You Are More Pessimistic Than I Am”: An Interview with Giorgio
Agamben’ 16(2) Rethinking Marxism 115.
Rens Van Munster (2004) ‘The War on Terrorism: When the Exception Becomes the Rule’
17 International Journal for the Semiotics of Law 141.
Otmar Vershcuer (1936), Rassenhgiene als Wissenschaft und Staatsaufgabe, np.
Richard Wolin (ed) (1993) The Heidegger Controversy: A Critical Reader, MIT Press.

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Taylor & Francis makes every effort to ensure the accuracy of

In State of Exception, Giorgio Agamben argues that

identifies, yet he also describes this process as one in which

Giorgio Agamben’s analysis of sovereignty and the state of exception in the

response that indefinitely restricted rights and expanded executive power.3

law and politics of the exception?

This article responds to these issues by analysing and extending

The Normalisation of the State of Exception

addressing the state response to contemporary terrorism. As an example in the Australian

seems appropriate, given Agamben’s use of Schmitt, to draw upon the

effective operation of the law requires a certain minimum of order. As such,

process. The use of the state of exception by democracies can be traced as

Republic … made continual use of Article 48, proclaiming a state of

20 Agamben (2005), p 15.

25 Mills (2008), pp 86–87

and state violence in the twentieth century. As such, we need to turn to

Michel Foucault on Security and Government

population, such as disease, pollution or grain scarcity, through policies such

35 Foucault (2007), p 46.

not be possible to eliminate the phenomenon, but it can try to regulate it in a

‘in a word, security mechanisms have to be installed around the random

43 Foucault (2007), p 20.

the emergence of new apparatuses and institutions of power rearticulates the

With the rise of security, then, there is a ‘governmentalisation’56 of the

state, and the law becomes subordinated to the logic of government,

it is not a matter of imposing law on men, but of the disposition of

Biopolitics and (Total) War

existence of war or political crisis, but the particularly biopolitical nature of

however, presents a paradox: while biopower is dedicated to strengthening

Wars are no longer waged on behalf of a sovereign who must be

The blurring of the sovereign and biopolitical functions of the state is

58 Foucault (1978), p 137.

political and economic organisation of Western democracies than that provided

account of the normalisation of the state of exception by connecting it to the

71 Agamben (2005), pp 12–22; Rossiter (1948), pp 295–96.

worldwide deployment’).76 In this section, I develop on the previous analysis

74 Rossiter (1948), p vii.

contemporary political discourse.

82 Agamben (2000), p 94.

87 Agamben (2000), p 86.

Both the permanent state of emergency and the regular suspension of

purpose of guiding the development of a problem and ‘securing’ its

94 Schmitt (1985), p 12.

juridical practices of the state of exception: the Weimar German state

However, the economic role of the regulatory state transformed the

apparatuses of security as a mode of social regulation in modernity leads to a

Agamben on Liberalism, Security and the Government of Disorder

contemporary political situation appears in his 2001 lecture, ‘Security and

119 Agamben (2001), para 2.

legislative state, and to analyse the nature of the ‘exceptional’ state.

124 Ojakangas (2005), p 5.

Giorgio Agamben (2005a) State of Exception, University of Chicago Press.

3(1) borderlands, www.borderlands.net.au/vol3no1_2004/deranty_agambnschall.htm.

Andrew Neal (2006) ‘Foucault in Guantanamo: Towards an Archaeology of the Exception’

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