Agamben and Marx: Sovereignty, Governmentality, Economy

This essay reconsiders Marx’ prehistory of capital through the lens of the work of Giorgio Agamben, who in the wake of Foucault has proposed a bio-political theory of sovereignty that breaks down the analytical separation between sovereignty and governmentality that Foucault in his work tries to maintain. Although Agamben mentions Marx only once in his study of sovereign power, I argue that his study nevertheless contributes to our understanding of the capitalist relation as not only a governmental but also a sovereign power relation. In the first part of this essay, I show through a philological commentary on Marx’ use of the adjective ‘vogelfrei’—translated as free, rightless, without protection, outlawed—to characterise the proletariat, that the Marxian proletariat is a figure of what Agamben in his study of sovereign power calls bare life. In the second part of the essay, I show that this sovereign dimension of the capitalist relation is also substantiated by Marx’ analysis of the logic of the capitalist relation as that of the exception. After Carl Schmitt, who wrote that ‘sovereign is who decides on the state of exception’, Agamben has argued that the logic of the exception is the logic of sovereign power. Reconsidered through the lens of Agamben’s argument, Marx’ account of the prehistory of capital reveals that there is a sovereign logic of the exception at work in the capitalist relation. In the final part of the essay, I start from Agamben’s single reference to Marx in his study of sovereign power to discuss the importance of my conclusions for Agamben’s political message.     

‘We the People of the United States…’: <Emphasis Type="Italic">The Matrix</Emphasis> and the Realisation of Constitutional Sovereignty

In its enunciation of “We the people,” the Constitution of the United States of America becomes a constitution of the flesh as it simultaneously invokes a constitution, a nation and a people. Correspondingly, its amendments as a list of rights pertaining to sex and race discrimination, and freedoms of bodily movement and action, assert the Constitution’s authority through the evocation of “natural” human bodies. In this article, I explore the way in which a sovereignty of the United States’ Constitution is realised in the particularlised bodies of its citizens. The fundamental and foundational laws of the United States, and the narratives and myths used to interpret them, are in part rendered legitimate by the Constitution’s embodiment, which extends from its physical manifestation in written documents into the flesh of its citizens. In order to make this argument, I turn to the film The Matrix (1999), the success of which relies on an investment in bodies and the United States’ Constitution as matter through its interwoven narrative themes of human slavery and emancipation, reality and computer-generated simulation. At the same time, The Matrix extends its ideological play into the bodies of its audience, who experience the film’s thrillingly sensorial fantasies of constitutional rights while enjoying its affective special effects. Thus, the sovereign authority of United States constitutional law is experienced as “natural” through the phenomenological experience of cinema.     

The Sovereign Event in a Nation's Law

This article interrogates the relationship between the sovereign event and a legal decision that purports to place sovereignty beyond law. It argues that sovereignty cannot be regarded as unitary, and elaborates the process of iterability by which the sovereign event is split from the outset. This dynamic is examined through an interrogation of the non-justiciability of sovereignty in Mabo v. Queensland (No. 2)(1992). Along with the unitary conception of sovereignty, Mabo (No. 2) deployed an absolute measure for community in the form of the ‘skeletal principle’ of the doctrine of tenure. The paper argues that a conception of the political that affirms the One sovereign source of community and law instead of the original dis-position of law, nation and community repeats the original violence, and will, at best, run aground on the righteous (mis)recognition of the ‘appropriate savage’. It concludes with an indicative rethinking of community through the thought of Jean-Luc Nancy. This revised version was published online in July 2006 with corrections to the Cover Date.     

The Sovereignty Game States Play: (Quasi-)States in the International Order

This article discusses the puzzle of sovereign statehood in the context of state failure and anarchy in Sub-Saharan Africa. In the first section it suggests to analyse sovereignty as a discursive fact in terms of a Wittgensteinian language game. This renders recognition a pivotal element and rejects foundationalist notions of sovereignty. The second section analyses the ‘quasi-statehood narrative’. Whereas this narrative presents sovereignty as a game, it applies two different notions of games concomitantly. This article argues that the notion of quasi-statehood maintains an empirical kernel as the core of ‘real’ sovereign statehood and as such remains within the conventional sovereignty discourse. The epilogue states that such foundationalism is not an innocent analytical move. It shows how language can have far-reaching political impact in terms of legitimation of political actions, and how, ultimately, the conventional discourse drains international relations of its content. This will be illustrated by U.S. position to state failure in their War on Terrorism.     

Police crackdown on Christiania in Copenhagen

A recent change in Danish cannabis control policy has had significant implications for the structure of the retail-level cannabis market in Copenhagen. A process of restructuring following an crackdown on ‘Pusher Street’ has involved at least four people getting shot and killed in what police describe as struggles for market shares. Combating the retail cannabis market was a top three priority for the Copenhagen police. The shift in policy started in 2004 when possession for personal use was up-penalized, from a discriminatory warning to an obligatory fine of 70 euros which was quadrupled in 2007. The law was immediately followed by an extensive police crackdown on Christiania’s open retail-market. Christiania has had a cannabis market for 32 years. As cannabis use rates rose throughout the ‘90’s the market flourished. On a given day it’s estimated turnover was around 20 k, about twothirds of the total market in Copenhagen. On the 16th of May 2004 police raided ‘Pusher Street’ and arrested 60 dealers and their helpers along with 20 people accused of forming an organized lookout corps. After the initial raid police implemented a zero-tolerance zone in the area and targeted users in a deterrent effort issuing a total of 4834 fines in a year. Maintaining the zero tolerance zone has so far involved 12 big confrontations with the inhabitants of Christiania. 114 police officers have been injured and 29 formal complaints of police conduct have been lodged with the State Attorney. Following the crackdown the cannabis market adapted by dispersing and applying new methods for retail dealing.     

Particular Rights and Absolute Wrongs: Giorgio Agamben on Life and Politics

Over the past decade, as human rights discourses have increasingly served to legitimize state militarism, a growing number of thinkers have sought to engage critically with the human rights project and its anthropological foundations. Amongst these thinkers, Giorgio Agamben’s account of rights is possibly the most damning: human rights declarations, he argues, are biopolitical mechanisms that serve to inscribe life within the order of the nation state, and provide an earthly foundation for a sovereign power that is taking on a form redolent of the concentration camp. In this paper, I will examine Agamben’s account of human rights declarations, which he sees as central to the modern collapse of the distinction between life and politics that had typified classical politics. I will then turn to the critique of Agamben offered by Jacques Ranciere, who suggests that Agamben’s rejection of rights discourses is consequent to his adoption of Hannah Arendt’s belief that, in order to establish a realm of freedom, the political realm must be premised on the expulsion of natural life. In contrast to Ranciere, I will argue that far from sharing the position of those thinkers, like Arendt, who seek to respond to the modern erosion of the borders between politics and life by resurrecting earlier forms of separation, Agamben sees the collapse of this border as the condition of possibility of a new, non-juridical politics.

Legal obligation as a duty of deference

An enduring question in political and legal philosophy concerns whether we have a general moral obligation to follow the law. In this paper, I argue that Philip Soper’s intuitively appealing effort to give new life to the idea of legal obligation by characterising it as a duty of deference is ultimately unpersuasive. Soper claims that people who understand what a legal system is and admit that it is valuable must recognise that they would be morally inconsistent to deny that they owe deference to state norms. However, if the duty of deference stemmed from people’s decision to regard the law as valuable as Soper argues, then people who do not admit the value of the state would have no duty as such to defer to its norms. And, more importantly, people who admit the value of the state would have a duty not to defer to particular norms, namely those norms which violate the values that ground their preference for a state. This critique of Soper operates within his parameters by accepting his claim that moral consistency generates reasons to act. Even on those terms, Soper’s defence of legal obligation as a duty of deference is unpersuasive. I wish to thank John Tasioulas, Joseph Raz, Bill Edmundson, Adam Cureton, the editors and referees of Law and Philosophy, and the participants of the Society for Applied Philosophy 25th anniversary conference, July 2005, St Anne’s College, Oxford.     

法律的生成———边沁的法律概念的构成

边沁的法律是主权者的命令这一定义是其价值追求与逻辑推演的结果,经解释性研究而展放出边沁创立这一定义的整体思想框架,即边沁以安全、生存、富裕、平等为价值序列体系;依据经验主义本体论,反驳了自然法与自然权利的虚有性,确定了快乐为立法追求的根本目标,进而,以其价值序列体系与功利计算方法来推导出他的主权者,以道义逻辑推导出命令,最后推导出法律是人民意志的表达。     

From clean up to FICAC: Anti-corruption in Fiji’s post coup politics

The leaders of Fiji’s 2006 military coup launched a ‘cleanup campaign’ and set up an Independent Commission Against Corruption. So far it has brought court cases against about 24 people. Among them is the former Prime Minister, who was charged with corruption for his role in institutions designed to promote the economic interests of indigenous Fijians (who constitute about 56% of the population). The article considers what counts as ‘corruption’ in these Affirmative Action policies: a so-called ‘Agriculture Scam’, which distributed farm implements free to Fijian farmers; a company called Fijian Holdings, which received concessional finance from the government; and a Native Land Trust Board, which collects rent on behalf of indigenous landowners. It concludes that army and popular opinion in Fiji hold conceptions of corruption that are much broader than the offences set out in the country’s penal code, and which the new ICAC is attempting to enforce.     

Indigenous rights discourse in Australia

The ability of Australia's indigenous people to create their own cultural identity and social reality is shaped profoundly by the Australian legal system in various ways. The 1992Mabo decision of the Australian High Court ‘created’ a right to land tenure for Australia's indigenous people. This ‘right’ has been further explicated by federal legislation in the post-Mabo era, in and around law. This essay analyzes the 1992Mabo decision in the context of governmental, judicial and wider social responses to indigenous issues. At several sites, it examines ‘indigenous rights’ discourse to illustrate the shifting meaning of ‘rights’ in legal currency in the indigenous debate. The essay suggests that the ‘rights’ discourse of legal liberalism has not yet provided meaningful plurality in the recognition of indigenous rights.     

Heir, Celebrity, Martyr, Monster: Legal and Political Legitimacy in Shakespeare and Beyond

The seventeenth century placed Western political thought on a path increasingly concerned with ascertaining the legitimacy of a determinate individual, parliamentary or popular sovereign. As early as Shakespeare, however, a parallel literary tradition serves not to systematise, but to problematise the discourses used to assert the legitimacy with which control over law and government is exercised. This article examines discourses of legal and political legitimacy spawned in early modernity. It is argued that basic notions of ‘right’, ‘duty’, ‘justice’ and ‘power’ (corresponding, in their more vivid manifestations, to categories of ‘heir’, ‘celebrity’, ‘martyr’ and ‘monster’) combine in discrete, but always encumbered ways, to generate a variety of legitimating discourses. Whilst transcendentalist versions of those discourses begin to wane, their secular analogues acquire steadily greater force. In addition to the Shakespearean histories, works of John Milton, Pierre Corneille, Jean Racine, Friedrich Schiller and Richard Wagner are examined, along with some more contemporary or ironic renderings.

Nome law: Deleuze & Guattari on the emergence of law

This article orientates Deleuze & Guattari’s pragmatic semiotics towards a semiotics of law. This pragmatic semiotics is explored, and directly related to the theory of emergence and complexity that is also a key feature of Deleuze & Guattari’s work. It is suggested that the development of these aspects of Deleuze & Guattari’s thought in relation to law allows the contours of a noological legal theory to be sketched out. Noology is the study of images of thought, their emergence, their genealogy, and their creation. A first exploration of this noological legal theory is then carried out by the conceptualisation of nome law as the first emergence of law as theorised by Deleuze & Guattari in the plateau “1837: Of the Refrain” from “A Thousand Plateaus”. This is a conceptualisation of law’s emergence in a far-from-equilibrium palaeolithic hunter-gatherer pack, and contrasts to accounts of law’s origin in a founding violence or mythical contract. It is the ‘big bang’ of legality, and the opening up of a first image of legality, problematic of social organisation, and anthropomorphic knowledge space.     

Leiter on the Legal Realists

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two ‘prediction’ theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists.     

Youth, Police Legitimacy and Informal Contact

This paper explores the under-researched topic of young people’s attitudes towards police in two studies using structural equation modelling. The first study examines the influence of police legitimacy on the willingness of young people to assist police. The second study examines the impact of informal contact with police during a community policing project on young people’s willingness to assist police. Findings show that young people who view police as legitimate are more willing to assist police. Participation in the community policing project had a significant and positive influence on young people’s willingness to assist police independent of young people’s attitudes about police legitimacy.

Discursive Illusions in Legislative Discourse: A Socio-Pragmatic Study

This paper takes the position that interpretations of legal discourse are invariably taken in the context of socio-pragmatic realities to which a particular instance of discourse applies. What makes this process even more complicated is the fact that social realities themselves are often negotiated within the mould of one’s subjective conceptualisations of reality. Institutions and organisations, including people in power, often represent socio-political realities from an ideologically fuelled perspective, engendering many ‘illusory’ categories often a result of contested versions of reality. To substantiate this view, we discuss interpretations of a number of interesting contemporary and controversial laws, including America’s Patriot Act and Hong Kong’s proposed Article 23 of the Basic Law. Both laws can be seen as illustrative of the definitional conflict that abstract concepts such as democracy and human rights are subjected to in their own specific socio-political contexts. While America crowns itself with democracy and Hong Kong struggles to achieve it in effective synthesis with its unique political arrangement, the laws produced by both contrasting political systems are unexpectedly similar, aiming for the moderation of basic rights. The actions of both governments set against their beliefs and discourses, and furthermore set against one another and other media voices, particularly those of non-governmental organisations, political activists, and other socio-political groups, demonstrate contestation of realities, giving rise to ‘discursive illusions’, which seem to be interpreted not so much on the basis of their linguistic construction but more on the basis of socio-pragmatic factors, such as trust, belief, transparency, control and power.     

Madness and the Law: The Derrida/Foucault Debate Revisited

In this article the Derrida/Foucault debate is scrutinised with two closely related aims in mind: (1) reconsidering the way in which Foucault’s texts, and especially the more recently published lectures, should be read; and (2) establishing the relation between law and madness. The article firstly calls for a reading of Foucault which exceeds metaphysics with the security it offers, by taking account of Derrida’s reading of Foucault as well as of the heterogeneity of Foucault’s texts. The article reflects in detail on a text of Derrida on Foucault (‘Cogito and the History of Madness’) as well as a text of Foucault on Blanchot (‘Maurice Blanchot: The Thought from Outside’). The latter text shows that Foucault was at times acutely aware of the difficulty involved in exceeding metaphysics and that he realised the importance in this regard of a reflection on literature. These reflections tie in closely with Foucault’s History of Madness as well as with Derrida’s reflections on literature and on madness. Both Derrida and Foucault contend that law has much to learn from literature in understanding the relation between itself and madness. Literature more specifically points to law’s ‘origin’ in madness. The article contends that a failure to take seriously this origin, also in the reading of Foucault’s lectures, would amount to a denial by law of itself.     

Insecure Attachment Mediates Effects of Partners’ Emotional Abuse and Violence on Women’s Relationship Quality

Men’s emotional abuse and violence have a broad and pervasive impact on women that may include long-term effects on women’s attachment and relationship quality. In this longitudinal study, women’s Wave 6 ratings of their insecure attachment were hypothesized to mediate the relationship between partners’ Wave 5 abuse (emotional and physical) and Wave 6 relationship quality, with differences in associations by women’s Wave 5 self-classification as secure or insecure. Mediation was tested with data from a sample of 574 African American, Euro-American, and Mexican American community women who had completed at least three waves of a six wave study. Differences occurred in the final structural equation models by women’s Wave 5 attachment style, with direct paths from emotional abuse to insecure attachment and from violence to relationship quality for both groups, but direct effects of violence on relationship quality only for insecurely attached women.     

Issues in public safety

This paper proposes to deal with the eternal dilemma of melding systems response and public expectations and issues relative to that fusion. Public Safety is defined by the writer as, “Those activities of government which promote the health, safety, and welfare of the people through regulatory policies which attempt to eliminate hazards.” Acting on behalf of the people as a whole, is a never ending concern of government and usually consumes a major portion of a municipality’s budget. The author attempts to illustrate the fact that there are ways of delivering the necessary services efficiently and effectively.     

Childhood Maltreatment,Intimate Partner Violence,Work Interference and Women’s Employment

This study examined the long-term effects of childhood maltreatment, intimate partner violence (IPV) and work interference on women’s employment in a sample of 135 housed or homeless women. Work interference (defined as a partner’s interference with or restraint of a woman’s working) was reported by 60% of women who had experienced IPV and was more common among non-Hispanic White women. Abuse history of any type was not predictive of women’s employment or receiving job training, but child sexual abuse history and lifetime IPV were predictive of non-Hispanic White women’s not looking for a job. Receiving job training was negatively correlated with women’s current mental health. The study suggests different but overlapping pathways to the outcome of underemployment for racial/ethnic minority and majority women—namely, macro level factors and individual vulnerability factors, respectively. The need for trauma-informed services for unemployed and/or homeless women is highlighted.     

‘I Would Prefer Not To’: Giorgio Agamben, Bartleby and the Potentiality of the Law

In Homo Sacer, Giorgio Agamben suggests that Herman’s Melville’s ‘Bartleby the Scrivener’ offers the ‘strongest objection against the principle of sovereignty’. Bartleby, a legal scribe who does not write, is best known for the formula with which he responds to all his employer’s requests, ‘I would prefer not to.’ This paper examines this formula, asking what it would mean to ‘prefer not to’ when the law is in question. By reading Melville’s story alongside Aristotle’s theory of potentiality and Walter Benjamin’s theses on history, it suggests that Bartleby’s interest, for Agamben, lies in his challenge to dominant conceptions of the relation between potentiality and actuality, which, he believes, are rendered indistinct in sovereignty. By reflecting critically on Agamben’s depiction of Bartleby as a ‘new Messiah’, this paper examines Agamben’s understanding of what it would mean to fulfil the law, and what form of political task this would entail.