Democracy’s ruins, democracy’s archive

Chapter 4

Democracy’s Ruins, Democracy’s Archive

Paul A. Passavant


Giorgio Agamben’s work condemns sovereignty and aspires to found a new politics, or a ‘coming community’, beyond sovereignty and law. He describes sovereign power as determining, unitary, and absolute. This sovereign must be overcome by its equally absolute or all-encompassing other. This other to sovereignty has been conceptualized as pure potentiality, pure singularity, belonging itself, contingency, creativity, excess, or absolute democracy (Agamben 1993: 2, 67; Hardt and Negri 2000). I argue that Peter Fitzpatrick’s work on sovereignty and law shows that absolute sovereignty is not capable of existing as such. Nor, for that matter, is absolute democracy capable of existing as such. ‘Sovereignty’ and ‘democracy’ are not absolutely opposed to each other. Instead, politics takes place in the torsion of these impossibilities.

Many postmodernists today are allergic to anything with a whiff of sovereignty (Hardt and Negri 2000). Unfortunately, this has the consequence of asking those with democratic sensibilities to give up on the project of popular sovereignty at the exact moment that the right in the United States is seeking to ruin democracy by asserting sovereign prerogatives under various theories of absolute and uncheckable presidential powers.1 We are faced, presently, with the ruins of a law opposed to unchecked presidentialism, torture, and camps.2 Fitzpatrick’s attention to sovereignty’s paradoxical requirements, and to its near-mythic reliance upon law for temporary resolution of these contradictory demands, teaches us that law, and hence democracy, is always vulnerable to ruin of this sort. Instead of sharing the hopes of messianic postmodernists for a final resolution to these challenges, Fitzpatrick indicates where we must begin our political labours: among democracy’s ruins. These ruins are legal remainders of past struggles against tyrannies and, as such, material for an archive of democratic remains. I contend that our political work should be mindful of law as democracy’s archive. These reminders can help us to recollect the persistence necessary to take down or overcome tyrannies, to recall the fidelity necessary to keep a commitment to popular sovereignty. If we fail to labour on behalf of the future this archive anticipates, then the scriveners of George W. Bush’s administration will continue to consign us to a dwelling among democracy’s ruins.

Messianic Postmodernism

According to Giorgio Agamben, sovereign power is absolutely determining. In Homo Sacer, Agamben accepts Carl Schmitt’s theory of state sovereignty, positing the sovereign as the one who decides the exception to the normal juridical order (Schmitt 1988, 1996; Agamben 1998: 15–16).3 Against liberalism, which seeks to debilitate the state from acting through individual rights and multiplying checks on decision, Schmitt’s theory of the political relies on a concept of sovereignty where sovereignty is the one place where the decision on the ‘critical situation’ or ‘exception’ resides (1996: 61, 38–9). For Schmitt, and therefore for Agamben’s understanding of sovereignty, it is clear where sovereignty lies, in so far as the sovereign is not hampered by checks and balances. It is the unitary place of decision (1988: 5, 7).

For Agamben, the place of the sovereign is a place where the outside is brought inside the community (1998: 35, 38, 83). Homo sacer, the one who is ‘captured in the sovereign’s ban’, the one who may be killed without committing homicide but not sacrificed, exists in a parallel relation to the sovereign in the sense that he also is outside the normal juridical order (1998: 83). Political space is thus constituted through a double exclusion. The political sphere, the place of sovereignty and the referent of the sovereign’s decision, is created in its separation from the divine and the juridical. This is where political power confronts bare life without mediation.

The concentration camp, Agamben contends, the ‘pure, absolute, and impassable biopolitical space’, is the ‘hidden paradigm of the political space of modernity’, and the ‘hidden matrix of the politics in which we are still living’ (1998: 123, 175). The concentration camp is the creation of a declaration of a state of emergency or exception, and thus placed outside the normal legal order (Agamben 2005a: 2). The camps are the spatialization of the suspension of law that is inhabited by bare life (Agamben 1998: 175). By identifying the German body through the negation of the Jew, the Nazi camps produced the Muselmann, an ‘absolute biopolitical substance’ (Agamben 2002: 85). In these concentration camps that are the logical extreme of sovereign power, biopower sought to produce, through the Muselmann, a complete separation of living being from speaking being, a kind of absolute biopolitical substance forced to survive as an entirely separated stratum – an absolute separation of zoe from bios (ibid.: 156).

Because, for Agamben, politics must be immanent to being, he must find a passage from the contemporary state to the ‘coming community’ from within human being as it is presently manifested. This means, paradoxically, that he must look to the camps as the political matrix of the present – and the state of exception generally – in order to find this passage. Agamben must locate the seeds of change, the potentiality of the coming community, within the camps and within the state of exception. At this point, Agamben requires a theory of political action. Yet Agamben has described the camps such as Auschwitz as ‘the most radical negation of contingency; it is, therefore, absolute necessity’ (2002: 148). What, within the realm of human possibility, could overcome sovereign power defined as ‘absolute necessity’? Faced with absolute necessity, Agamben must evacuate the terrain of the political and rely upon the messianic to overcome sovereign power.

In an extended consideration of the messianic, Agamben describes the word of faith as an ‘experience of pure power (potenza)’. It is a ‘pure potentiality of saying’ (2005b: 136). Paul’s faith, expressed as ‘Jesus Messiah’, can be understood through J. L. Austin’s conception of performative speech acts (Agamben 2005: 131; Austin 1962). The apostle’s joyful message might be likened to a performative speech act where language is not functioning denotatively but where language is action. A successful performative speech act, however, relies on particular conditions of possibility for its effectivity.

In Austin’s initial introduction of performatives, he notes that they rely on ‘appropriate circumstances’ (1962: 6). What are the preconditions for a successful speech act? If we are referring to the process of becoming a citizen of the United States, we would want a ceremony, someone to administer the oath of citizenship, dress appropriate to the occasion, and so on. In other words, the success of the performance is contingent upon its staging or conventions. We also need to believe in the performance – that this is not a group of actors, say, being filmed (a simulation of the oath of citizenship) – or, as Agamben helpfully reminds us, the announcement needs the complement of faith for it to pass from potentiality to actuality (2005b: 90). Finally, we would need to be able to secure this situation and perhaps this space against other possible uses, at least for the time it takes to perform the ceremony. This means that other possible performatives – like a promise to sell the site to a developer in response to a decision to develop the site with luxury condos, a shopping mall, and a sports arena – must not have occurred. Therefore, a particular situation, the preconditions for a successful performative speech act, must be secured for the announcement’s success. The faithful, that is, would have to make political decisions and perhaps even act with a certain measure of militancy to continue to maintain the security of the situation that enables the possibility of the truth of the announcement against other possible speech acts and their corresponding subjects and situations (Badiou 2001, 2003; Passavant 2007: 162–5). Agamben’s acknowledged reliance upon the messianic functions as a displacement of attention from politics, although it must presuppose unacknowledged political commitments.

Agamben believes, along with other ‘new ontologists’ such as Michael Hardt and Antonio Negri, that today’s political problems cannot be solved within politics or political philosophy. Instead, the problem of sovereignty must be solved at a more fundamental level by removing inquiry from the level of political philosophy to ‘first philosophy’ by creating a new ontology (Agamben 1998: 44; Hardt and Negri 2000). A thread ties the modern state to the ancient creation of the political sphere in the western tradition. Likewise, there is an ‘inner solidarity between democracy and totalitarianism’ (Agamben 1998: 10). The production of bare life – the human life exposed to an ever-present vulnerability to being killed, the exclusion that founds the city of men – is the ‘originary activity of sovereignty’, and this decision constitutes the ‘originary “political” relation’ (ibid.: 7, 83, 85). Agamben traces the production of bare life to the distinction for the ancient Greeks between zoe (biological life) and bios (a way of life), and the exclusion of zoe from public or political space by confining it to the oikos (home). The human being with logos dwells in the polis ‘by letting its own bare life be excluded, as an exception, within it’ (ibid.: 8). The seeds of the camps are located in the ancient Greek distinction between zoe and bios at the beginning of the western political tradition. Therefore, the problems of politics and law cannot be solved at the level of political or legal theory. We must shift our attention to the more fundamental problem of ontology and be otherwise (ibid.: 44).

Agamben looks favourably upon Negri’s effort to rethink constituent power as potentiality, as a category of ontology, although he suggests that Negri’s continued use of the terminology of constituent power means that potentiality still, unfortunately, remains tied to sovereignty (Agamben 1998: 43–4). This is significant for Agamben as he seeks to ‘think the Being of abandonment beyond every idea of law’, towards ‘a politics freed from every ban’, and cites Walter Benjamin’s aspiration for a world that ‘absolutely cannot be appropriated or made juridical’ (1998: 59; 2005a: 64). In other words, Agamben shares Negri’s anti-juridicism, even suggesting that Negri himself might still go further in this respect.

Political theory is embedded ontologically such that the outcome of camps – a spatialization of law’s suspension where bare life is confined – is predetermined. To correct these injustices, then, we must found a new ontology for our politics of the future. Where would we find these new subjects or this new experience of being? To stop the present and to found a new ontology, however, presumes an Archimedean point on which to pivot from present to future, or messianic salvation inexplicable to human being, if sovereignty is as determining as Agamben suggests in his Homo Sacer project. Thus, the approach of this new ontologist shares a problematic weakness with deontological theories of justice and politics: the belief that we can find, invent, or experience totally new grounds for our politics of the future.

To accede to Agamben’s coming community, we must experience messianic salvation. This act of salvation would have to occur without ruin, remainder, or excess. Otherwise, we would not experience pure belonging in the coming community. Either something would be lacking in the coming community, which would mean that it was less than belonging itself, although Agamben theorizes the coming community as ‘without remainder’ (1993: 28), or there would be the coming community and something more than the coming community that continued to reside within it. This would require, however, a subsequent act of representation in order to come to grips with that which exceeds the coming community, and a concomitant exclusion or limit to belonging or to pure potentiality, although Agamben considers the coming community to be ‘unrepresentable’ (1993: 25). It would require a consideration of that which is inessential to the coming community, a consideration, therefore, of the coming community’s purpose, yet Agamben conceptualizes the coming community as ‘without presupposition’ (and without a state) in its being such (1993: 83). Passage from absolute sovereignty to the coming community, then, must be messianic.

Agamben’s proclivity to substitute a project requiring the invention of new metaphysics for political inquiry and political struggle is messianic. Present injustices are too pressing to wait for this. Peter Fitzpatrick’s work on sovereignty, I believe, presents us with a more productive post-structuralism – one with less need to resort to messianic diversions.

Sovereignty’s Paradoxes

Peter Fitzpatrick understands modern sovereignty as something that eludes us all. It cannot be possessed. This might seem odd in light of the standard understandings of sovereignty, where the latter would be that political and legal locus of the final decision, that place from which there can be no appeal. The standard account of modern sovereignty suggests that sovereignty is singular in its self-possession. Sovereignty is a place, as Schmitt (1996) contends, that must be unitary. Contemporary scholars like Agamben, then, borrow from Schmitt to evoke the image of an allpowerful sovereign who decides matters of life itself as the origin of contemporary law and politics today, as well as its catastrophes. The sovereign, according to this image, decides and the act the decision mandates occurs without delay, a perfect translation of the decision into the action required by the sovereign.

Fitzpatrick asks, what would be required of this sovereign, of pure sovereignty? This sovereignty would have to be enclosed.4 It would have to be a distinctive and unitary space. Otherwise, it would fall prey to the confusions of pluralism to which liberal governments are vulnerable, on Schmitt’s accusation. It must be enclosed, or else we would have trouble locating the exact place of sovereignty. It must be this place and not another. Sovereignty is in its place and not, therefore, the place of the non-sovereign. Sovereignty must be its own entity and not the entity of another or else it is not sovereign, but governed by the other that possesses it. In other words, sovereignty must be self-possessed and not possessed by another. Thus, it must be enclosed and set apart from the rest who would be non-sovereign. Sovereignty cannot be with-in the rest if it is to be sovereign.

Sovereignty also must be one. If sovereignty were plural, then, as Schmitt points out, confusion ensues. What if there is a difference of opinion among the many? Which would govern or decide the matter? If there were more than one, then there might be another place to lodge an appeal. If there was division among the multiple with sovereign pretences, then the multiple itself might split and divide in conflict. In this case we would have struggle, and not the simplicity and decisiveness of a unified decision made by the sovereign. With unity, there is self-possession. Without unity, there is struggle and one entity would then be determined, in part, by the course taken by its struggle with another. Thus, sovereignty must be one.

Relatedly, sovereignty must be corporate. We must know the body of sovereignty. Otherwise, if sovereignty is not enclosed within its own body, if it is not self-possessed, then its powers would be shared among many bodies. If power were shared among many bodies, then we would not be speaking of sovereignty. Rather, we would be speaking of sharing and pluralism, if not democracy. We would not be able to locate the unitary place of decision.

Sovereignty must also be determining. Sovereignty determines the fate of others with its decisions. If one were determined by another, then one would not be sovereign, but the entity that decided one’s fate would be sovereign over one. One would be subjected to other, determinant forces. Therefore, sovereignty must be determining if it is not to be subjected to others.

Fitzpatrick shows, however, that sovereignty to be sovereign must also be the opposite of the above. That is, to be sovereign, sovereignty must not only be enclosed, one, corporate, and determining, but also illimitable, plural, responsive, and determinate yet dissipating as well. Sovereignty must be illimitable because if something limited sovereignty, then the limiting entity would be determining, and not sovereignty. Sovereignty must be capable of reaching all. Sovereignty, to be sovereign, must be illimitable.

Sovereignty must also, paradoxically, be plural. It must be capable of representing itself in multiple places for it to be relevant and indeed sovereign over all. So, the sovereign decision must be amenable to reproduction in a place other than its place of origin for the decision to have its determining effects for others. The decision’s mandate must appear in the place of the other, yet it must be of the locus of sovereignty. Because sovereignty must be in the place(s) of the many to be sovereign for the many, sovereignty must of necessity be many, plural, and perhaps shared if not democratic, as it re-presents and reproduces itself along a chain of reiteration, and ultimately in the place of the other.

Sovereignty must be not only determining but also responsive. If sovereignty was not responsive then it could no longer be sovereign – it could not be sovereign for us. The sovereign, for example, might dictate a rule. Because of the flux of life, however, circumstances might arise that were not immediately contemplated when the rule was decided upon. Sovereignty, then, must respond to these new conditions and cover them as well. For sovereignty to be sovereign for us, for it to be continuing in its sovereign power, sovereignty must be responsive to us, and not stuck unresponsively in another place and time.

Paradoxically, sovereignty must be not only determining but determinate. That is, we must know where sovereignty lies so that it is not mistaken for another. Confusion if not struggle ensues if those who must act on the sovereign’s decisions do not know whether the rules issue from this place or that. We must know the sovereign – it must be determinate – so that we are not fooled by imposters. Sovereignty must be distinguishable from the rest. Yet once sovereignty becomes determinate, it becomes subject to that which identifies it or gives it meaning. Sovereignty becomes determined by that which points it out, defines it, and gives reasons to justify it (see further Derrida 2005: 101). Once sovereignty is determinate for us, it has become determined by the creative forces of determination.

Finally, sovereignty must be dissipating. By being ‘responsive to the illimitable plurality beyond its present existence’, by being ‘attuned and receptive’ to plurality, sovereignty dissipates over space and time (quoting Fitzpatrick 2007: 4). The decision moves from one place to another along a chain of institutions, disappearing from one place as it reappears in another. The decision is also translated and thus becomes subtly different from what it was once as it is reformulated to fit new circumstances. The sovereign decision becomes other than what it was in order to continue to be – to be for the many and indeed in the infinite. Sovereignty must no longer be what it was in order to be for us, now. So, modern sovereignty must ‘marvellously combine’ being enclosed, one, corporate, and determining, with also, simultaneously, or by turns, paradoxically, being illimitable, plural, responsive, determinate, and dissipating. Modern sovereignty, unlike earlier or other forms that govern with reference to the sacred, has to combine these contradictory dimensions ‘without recourse to a transcendental reference’ (Fitzpatrick 2007: 3).

In order to combine these contradictory dimensions without transcendent reference, modern sovereignty ‘has to be a process of continual constitution’. Borrowing from Jacques Derrida’s discussion in Rogues, Fitzpatrick describes this process of sovereignty as ‘gathering itself by tending toward simultaneity’ as it responsively incorporates and assembles the ‘multitude of disparate forces that continually come to (re)constitute it’ (2007: 3, quoting Derrida 2005: 12). Since sovereignty cannot be confined to what it presently is for it to be in the infinite future, sovereignty must take on a position, constantly, that enables it to be ‘other than what it is, a position that is an incipient vacuity – ultimately “nothing” ’ (Fitzpatrick 2007: 3–4). In other words, in Fitzpatrick’s rigorous examination of what pure sovereignty would have to be, we wind up ultimately, paradoxically, with nothing.

Pure sovereignty is impossible. Sovereignty, or rather sovereign aspirations, always risk ruin. Sovereignty, to be truly sovereign, would have to be simultaneously. The decision, the announcement, the act to make the decision real would all have to occur in the same instant without ruin or remainder or else the ruin or remainder would be indicators that something eluded sovereignty. In other words, ruins and remainders indicate that which is beyond the grasp of sovereignty, that which is beyond its control – the limits of sovereignty indicating other powers.

The sovereign, to be sovereign for us, would have to relate to us somehow. For example, the decision to torture – or not to torture – must be related, through a bureaucracy, to the one who would carry out the order, and to the one vulnerable to the tyrannical abuse. At each stage in the relay the sovereign’s legal ruling risks ruin through the interpretive acts of his or her officers. Yet for the sovereign to do otherwise would be to tend towards one’s self in a way that would not relate to us; it would be alien from us. We could not, however, be subject to that which does not relate to us, to that which is absolutely other to us in its radical separation from human being (Gasché 1999). So, to be our sovereign, the sovereign cannot be absolutely sovereign; it is impossible.

Sovereignty cannot be a purely unitary place if it is to relate to us. Sovereignty must be plural if it is to be; sovereign decisions must be re-presented in other places if they are to reach us. The sovereign’s power achieves extension precisely through chains linking multiple decision points through the modern state – a phenomenon that Michel Foucault (1982) analysed perspicaciously through his concept of government.5 Foucault’s understanding of government grasps how the state is able to govern at a distance precisely because it accounts for pluralized forms of power, and an element of freedom. The modern state seeks to conduct the conduct of institutions and peoples constituting society. The modern state brings different forms of power under its control and activates them as an ensemble towards its ends over space and time.

‘Sovereignty’ achieves extension through plural institutions articulated with each other in a chain. Because of this, sovereignty is not sovereign. It relies on others. Sovereignty must share power in order to be. As Fitzpatrick puts it, when he uses the term ‘sovereignty’ he is cheating (2007: 5; see also Passavant 2007: 159–60). Sovereignty, as I have already said, borrowing from Fitzpatrick, would be nothing. That which we have been analysing under the name sovereignty is really the ‘supposedly modern occidental notion of the state’ (Fitzpatrick 2007: 5). This state is better understood as an ‘assembly’ or an ‘assemblage’. And that which gives the assembly power is also that which can put this state in ruins. Sovereignty, the state, liberalism, democracy – none of these can be without their scriveners, but all are potentially subject to ruin at the hands of their scriveners.

‘Absolute’ sovereignty now looks a great deal more vulnerable than posited by Agamben. As sovereignty becomes more ‘absolute’, or ‘encompassing’, it appears more proximate to democracy, as its powers become increasingly responsive, shared, and plural. Fitzpatrick’s helpful exploration of ‘pure sovereignty’, in fact, suggests that sovereignty and democracy are not mutually exterior to each other, despite the assertions of Hardt and Negri in Empire (2000).