Agamben, the Exception and Law

Giorgio Agamben’s philosophy is currently the subject of intense study and critique. Agamben’s later ‘Homo Sacer’ work in particular has spawned a large secondary literature over the past several years. Many scholars, such as Slavoj Žižek and Judith Butler, have tried to use Agamben’s work to fashion a critique of Western politics and offer avenues of resistance for oppressed peoples. To do so misses the key point of Agamben’s work, namely that it concludes that the entirety of Western political and philosophical thought is trapped in a nihilism that it cannot escape from, no matter how ‘radical’ such thought tries to be. The law to Agamben is part of a biopolitical system that has operated from the time of Aristotle until the present day, a system that makes life the central nexus of law and power. This paper outlines Agamben’s theory of the State of Exception, a phenomenon that Agamben argues is not only relevant to how law operates in emergencies or exceptional circumstances but is the basic structure of modern political life, and challenges the basic act of lawmaking itself. Agamben concludes that the exception allows sovereign power to violate international law with impunity whilst at the same time claiming that they are following the law. Any attempts to ‘reform’, ‘improve’, ‘critique’ or ‘reimagine’ the legal system only serves to perpetuate the suffering of individuals, as paradoxically the more individuals are empowered or protected with legal rights the more they are likely to suffer at the hands of sovereignty.