Agamben's Sovereign Legalization of Foucault

This article compares Michel Foucault’s way of thinking about sovereignty and law within biopower to the reading given to Foucault’s work and its development by the Italian philosopher Giorgio Agamben. It is argued that Agamben supports the expulsion thesis in order to generate critical distance for his own re-imagining of biopower. The expulsion thesis is a controversial account of the position of law in Foucault’s work that does not reflect Foucault’s own nuanced views. A post-structuralist account of Foucault and law is then used to show that Agamben’s conception of law is actually much more similar to Foucault’s than Agamben at first claimed. The real thrust of Agamben’s work is found in his connecting political philosophy to ontology. Agamben’s claim that the questioning of law is a fundamental ontological issue calls into question the very concept of subjectivity. This leads Agamben to embark upon a radical reconceptualisation of sovereignty in relation to the subject and the law. Despite opening new areas of inquiry in relation to Being and law, Agamben’s attempt to move beyond Foucault’s work is called into question, with particular emphasis upon whether Agamben’s work is truly ontological.