Agamben, the Exception and Law

Giorgio Agamben’s work has been at the forefront of modern debates surrounding sovereign exceptionalism and emergency powers. His theory of the state of exception and engagements with Michel Foucault appear to focus upon sovereign power’s ability to remove legal protections from life with impunity, described by the figure of homo sacer. Much secondary scholarship concentrates upon this engagement. This thesis contends that this approach is too narrow and assimilates Agamben’s work into Foucault’s own thought.

Through his engagement with Foucault, Agamben’s thought is argued to be immanent and directed toward questions of fundamental ontology. Agamben contends that the human being, and all social structures, including law, are defined negatively through being held in relation to an ineffable transcendent ground. This negativity is transmitted through the exception. In challenging foundational mythologemes, Agamben questions received conceptualisations of sovereignty, arguing that sovereignty is a mythologeme used to legitimate and justify governmental praxis.

Agamben’s immanent thought seeks to philosophically justify a messianic politics and form-of-life no longer grounded in negative foundations. This form-of-life Agamben terms “whatever-being”, a life lived beyond relationality.

This thesis transposes Agamben’s thought on exception, sovereignty, the human and power into the realm of legal reasoning. A form of ethical decision-making and precedent charitable to Agamben’s thought is constructed, constituting a unique contribution to jurisprudence. This ethical decision focuses on whatever-being’s singularity.

However, Agamben’s eschewing of relationality means this ethical decision-making is aporetic, still reliant upon a derivate form of relationality. This thesis illustrates how Agamben’s thought is constructed through a misreading of Heideggerian hermeneutics and a failure to acknowledge its debt owed to Levinasian ethics. Agamben remains trapped within two critiques of his non-relationality, one drawn from Heidegger’s hermeneutic circle of Being, the other drawn from Levinas’s ethics of the Other. Ultimately, Agamben’s philosophical conclusions are contended to be unsustainable.