Introduction

In the aftermath of the events of September 11th, 2001, when a series of coordinated terrorist attacks against the USA by the extremist group al-Qaeda took place, both the US and UK governments enacted sweeping counterterrorism legislation. In the US, the Patriot Act sparked debate over the trade-off between civil liberties and state security, as it both affirmed that ‘the civil rights and civil liberties of all Americans…must be protected’¹ and expanded state powers through enhanced surveillance and the detention of suspects. In the UK, the Anti-terrorism, Crime and Security Act 2001 introduced comparable measures, including permitting the indefinite detention without trial of foreign nationals suspected of terrorism, even where this required departure from established human rights protections.²

The irony in limiting civil liberties to protect them reflects a broader trend across western political systems. In the UK, for instance, recent legislation expands state powers to curtail protest – a foundational democratic freedom – in the name of preserving public order and protecting the freedoms it ostensibly embodies.³ In the US, this dynamic assumes a more overtly coercive form: agencies such as Immigration and Customs Enforcement (ICE) operate through practices including warrantless arrests, prolonged and often legally contested detention, and the forcible separation of families – measures that bypass meaningful due process and expose the extent to which exceptional powers have become normalised.⁴

According to Italian philosopher Giorgio Agamben, such developments reflect a shift towards the ‘state of exception’, in which governments suspend legal norms in response to crises. By blurring the boundary between law and power, this condition enables expanded control with reduced accountability, and is emblematic of a broader logic increasingly embedded within ordinary governance:

…in our age, the state of exception comes more and more to the foreground as the fundamental political structure and ultimately begins to become the rule.⁵

This declaration of the limitless reach of state intervention exposes the instability of law within such systems, for under a state of exception the law can ‘be obliterated and contradicted with impunity by a governmental violence that – while ignoring international law externally and producing a permanent state of exception internally – nevertheless still claims to be applying the law’.⁶ In arguing that the ‘state of exception’ has become the new political norm, Agamben highlights the fragility of the relationship between law and political stability, as the ‘need’ for security in times of crisis erodes the democratic norms it purports to defend. The full implications of this analysis are brought out through Agamben’s damning assertion that ‘Today it is…the [concentration] camp that is the fundamental biopolitical paradigm of the West’.⁷

Within this paper, I assess Agamben’s claims regarding the status and stability of law under a permanent state of exception through an investigation into the roots of his argument. I begin by outlining his use of the term ‘biopower’ as drawn from Foucault. I then examine the relationship between this revisionary account and his conception of bare life as its object, before considering the implications of this relationship. I subsequently turn to his notion of form-of-life as an alternative to the multifarious forms of life which permit the political isolation of bare life. I then consider his account of human potentiality in relation to the pursuit of happiness. The penultimate section investigates the ontology of language upon which his argument depends, and which provides the backdrop for an alternative future politics. Finally, I consider objections to Agamben’s analysis, highlighting the difficulty of evaluating his future politics given his radical revision of the nature of language.

Modern power as ‘biopower’

The identification of the camps of the Nazi regime with modern democratic political systems may appear both contentious and insensitive; it risks seeming to overlook the liberties characteristic of contemporary democracies while flattening the historical specificity of those subjected to the camps. However, Agamben’s claim is more precise. He acknowledges ‘the enormous differences that characterise their history and their rivalry’ and instead seeks to illuminate their ‘inner solidarity’.⁸ His argument is not that totalitarian and democratic regimes operate in the same way, but that their divergent ideological forms converge in their inclusion of biological life within the political sphere. This supra-legal ‘inclusive exclusion’, whereby life is subjected to law without being protected by it, is, for Agamben, emblematic of the biopolitical logic at work in the concentration camps.

The exercise of biopolitical power, or ‘biopower’, as a central mechanism of state control was first identified by Michel Foucault. As noted by Agamben, in The History of Sexuality Foucault uses the term to describe a growing tendency for power to operate in ways that ‘penetrate subjects’ very bodies and forms of life’.⁹ For Foucault, the use of such techniques to regulate individuals and populations marks the arrival of the ‘threshold of modernity’, defined by a reversal in the principles upon which political power is founded:

For millennia, man remained what he was for Aristotle: a living animal with the additional capacity for political existence; modern man is an animal whose politics calls his existing as a living being into question.¹⁰

What Foucault identifies here is a fundamental shift in the nature of political power: whereas earlier systems were organised around the sovereign’s right to take life, modern political orders are defined by their active management and regulation of life itself.

Agamben adopts Foucault’s analysis of biopower but identifies within it a limitation. Foucault, he argues, failed to locate the common thread uniting pre-modern and modern political systems. While agreeing that the exercise of biopolitical techniques is the ‘foundational event of modernity’¹¹, Agamben seeks to extend this analysis through an investigation into the ‘hidden point of intersection between the juridico-institutional and the biopolitical models of power’¹². This intersection – linking modern biopolitical governance with pre-modern sovereign power and its relation to life – reveals a dependence upon ‘bare life’ as a core political object, such that ‘the inclusion of bare life in the political realm constitutes the original – if concealed – nucleus of sovereign power’.¹³ The question for Agamben, then, is: what is bare life?

Bare Life

The precise substantive content of what Agamben terms ‘bare life’ is widely regarded as ambiguous and is frequently misinterpreted or appropriated to support divergent arguments.¹⁴ While a full deconstruction of the term is not required here, its centrality to Agamben’s analysis of biopower warrants closer examination.¹⁵

In Homo Sacer: Sovereign Power and Bare Life, Agamben begins from the familiar distinction in Ancient Greek thought between different modes of life. He draws in particular on the Aristotelian distinction between zoé and bios, where zoé denotes natural life common to all living beings, and bios denotes a qualified form of life particular to individuals or groups. For Agamben, this distinction underscores the significance Aristotle attaches to the substantive content of bios: the issue ‘was not at all simple natural life but rather a qualified life, a particular way of life’.¹⁶ By separating bios from zoé, Aristotle grounds the function of the polis in its administration of qualified life.

In The Work of Man, Agamben further argues, in line with Aristotle, that identifying the end of politics depends upon identifying humanity’s particular ‘work’:

The question concerning the work or absence of work of man… has a decisive strategic importance, for on it depends the possibility not only of assigning him a proper nature and essence, but also, as we have seen, of defining his happiness and his politics.¹⁷

The identification of the work, or ergon, of man¹⁸ in Aristotle is bound to the pursuit of happiness as the highest good. Through the distinction between bios and zoé, it is the promotion of the ergon of the former that constitutes the proper end of political science; the identification of man’s work is therefore of decisive importance, as his happiness depends upon it.

Agamben argues, however, that it is precisely through Aristotle’s attempt to identify the proper ergon of bios that the figure of ‘bare life’ emerges. Having established happiness as the highest political end, and a particular form of life as its condition, Aristotle distinguishes between living (zén) and living well (eu zén). While the former is necessarily included within the political sphere as a condition of bios, it is the latter that defines its object. It is here that the root of bare, or ‘sacred’, life is to be found:

Neither political bios nor natural zoé, sacred life is the zone of indistinction in which zoé and bios constitute each other in including and excluding each other.¹⁹

By defining the work of man (ergon) as a particular form of life in relation to what it is not, Agamben identifies in Aristotle’s thought an ‘aporetic legacy’ that has shaped the history of Western political thought. It is aporetic because ‘its single determination is ultimately biopolitical, insofar as it rests on a division and articulation of zoé’, such that ‘the political, as the work of man as man, is drawn out of the living being through the exclusion – as unpolitical – of part of its vital activity’.²⁰

The implications of modern biopolitics

What marks out the biopolitical techniques, is that, in the absence of the metaphysical foundations underpinning Aristotle’s distinction between living (zén) and living well (eu zén), modern biopower emerges from the collapse of that distinction:

In the impossibility of defining a new ‘work of man’, it is now a question of taking on biological life itself as the last and decisive task.²¹

Having relied upon the separation of zoé and bios to determine the proper end of politics, the failure of this task gives rise to a political sphere which ‘presents itself from the beginning as a vindication and liberation of zoé’.²²

It is this identification of the inclusive exclusion of bare life as the ‘hidden intersection’ – uniting classical and modern political forms, as well as totalitarian and democratic regimes – which allows Agamben to present a stark image of modern governance. His claim that the camp is the ‘biopolitical paradigm of the modern’²³ is supported through varied examples, notably the Muselmann and the over-comatose patient. The ‘Muselmann’, a term used by concentration camp prisoners to describe those reduced by extreme suffering to a state in which ‘humiliation, horror, and fear had so taken away all consciousness and all personality as to make [them] absolutely apathetic’²⁴, represents life stripped to its bare biological minimum within a totalitarian setting. By contrast, the case of Karen Quinlan – an over-comatose patient sustained by life-support – emerges within a modern medico-legal framework ostensibly oriented toward care and preservation of life. According to Agamben:

Here biological life – which the machines are keeping functional… has been entirely separated form the form of life that bore the name Karen Quinlan: here life becomes (or at least seems to become) pure zoé.²⁵

The similarity between these cases, in light of Agamben’s critique of the separation of zoé and bios, becomes apparent: in both, the inclusive exclusion of bare life is at work. In the Muselmann, all forms of life beyond zoé are stripped away; in Quinlan, life is preserved at this same minimal, biological level. The very division upon which politics is founded thus becomes the mechanism through which bare life is isolated and subjected to biopolitical control.

For Agamben, the implication is a rejection of the rights discourse that emerges alongside this paradigm. The inclusion of bare life as the object of political power, together with the permanence of the state of exception, leads him to conclude that ‘every attempt to found political liberties in the rights of the citizen is… in vain’.²⁶ As rights of the citizen, such protections hold only insofar as one remains within the political order; yet under a permanent state of exception, this status can at any moment be withdrawn, leaving no recourse to legal defence.

This critique of rights discourse is inseparable from a deeper account of the relationship between law and violence. For Agamben, following Hobbes, the state is founded not upon a social covenant – not, that is, upon the consent of the governed – but upon the sovereign’s claim to the right to kill without that act constituting a crime. The homo sacer, that figure of Roman law who ‘may be killed and yet not sacrificed’, embodies this logic precisely: his life is included within the political order only as life that may be taken with legal impunity. Law, in this picture, is not the antithesis of violence but its instrument – the mechanism through which lethal force can be administered without infringing the juridical order that sanctions it. The permanence of the state of exception reveals this foundation: what appears as a suspension of the law is not an aberration external to the legal order, but its constitutive operation – the point at which the violence underpinning legal authority is most plainly exposed. The camp, as the space in which the exception becomes permanent and bare life is administered without legal recourse, is thus not a breakdown of the modern political order but its most lucid expression.

Despite this, Agamben does not abandon the possibility of resistance. Although the distinction between zoé and bios cannot be restored, bare life itself contains what Andrew Norris terms a ‘subversive potential’.²⁷

Forms of life and Form-of-Life

In Means without End, Agamben again draws on the distinction between zoé and bios to develop his account of bare life as the foundation of biopolitical power. As ‘the form or manner of living peculiar to a single individual or group’²⁸, bios manifests in a multiplicity of ‘social juridical identities (the voter, the worker… the elderly, the parent, the women)’.²⁹

The defining feature of modern biopolitics is the moment at which bare life, referred to by Agamben also as ‘naked life’ is separated from this multiplicity. It is through this separation that the permanent state of exception emerges:

The state of exception… takes place precisely when naked life, which normally appears rejoined to the multifarious forms of social life, is explicitly put into question and revoked as the ultimate foundation of political power.³⁰

Politics, founded upon the distinction between zoé and bios, thus negates that very distinction. The original exclusion of natural life from the political sphere, and its subsequent politicisation through that exclusion, produces bare life as its object; the state of exception arises when this politicised natural life becomes primary.

Agamben gestures toward a resolution in his notion of ‘form-of-life’, set against the fragmented forms of life from which bare life is separated. Unlike these, form-of-life is unified and indivisible:

By the term form-of-life… I mean a life that can never be separated from its form, a life in which it is never possible to isolate something such as naked life.³¹

This indivisibility is, for Agamben, the condition for overcoming the state of exception and establishing a new, ‘non-statist’ politics.³² Yet its precise meaning remains indeterminate, owing both to its rejection of the metaphysical foundations of politics and to its status as the beginning of a future ethics.³³

Even so, Agamben’s vision is one of potentiality grounded in the rejection of fixed identities. In such a politics, ‘[e]ach behaviour and each form of human living… always retains the character of a possibility; that is, it always puts at stake living itself’.³⁴ The realisation of form-of-life would thus entail the end of the isolation of bare life characteristic of modern biopower.

Human potentiality and the pursuit of happiness

The notion of ‘potentiality’ central to Agamben’s conception of form-of-life rests on a rejection of our current mode of being. To overturn the permanent state of exception to which bare life is subjected requires a rethinking of our metaphysical heritage; it is through this that Agamben articulates his vision of future politics.

Like Aristotle, Agamben treats the pursuit of happiness as central to human existence:

…human beings – as beings of power who can do or not do, succeed or fail, lose themselves or find themselves – are the only beings for whom happiness is always at stake in their living…³⁵

Yet, as beings of power, it is not the attainment of happiness that constitutes the end, with politics as its means. Rather, it is potentiality itself – of which happiness is a constituent – that must ground a new politics.

In The Work of Man, Agamben re-reads Aristotle through this lens. Against interpretations that locate the end of politics in the proper ergon of man, he argues that it is the potentiality inherent in this ergon that defines human essence. Referring to logos, taken by Aristotle as central to this definition, Agamben notes that ‘what specifically characterises human logos… is that it is not always already in act, but exists, first and foremost, only in potentiality…’³⁶

This rethinking, and rejection, of the metaphysical foundations of Western political thought forms the basis of his future politics. Yet the manner of its realisation remains unclear, due in part to the limits of language itself, which plays a central role in the ontology of potentiality.

Experimentum Linguae

The form-of-life with which Agamben is concerned is one in which bare life is inseparable from the diverse forms of life characteristic of the Western political tradition. This inseparability is grounded in an abstraction of ‘thought’:

I call thought the nexus that constitutes the forms of life in an inseparable context as form-of-life… an experience… that has as its object the potential character of life and human intelligence.³⁷

This notion of thought rests upon a reconfiguration of the ontology of language and voice, through which the nature of potentiality is disclosed. Agamben’s experimentum linguae takes as its point of departure the concept of ‘infancy’, understood as an approach to language that rejects recourse to unsayable abstractions:

If every thought can be classified according to the way in which it articulates the question of the limits of language, the concept of infancy is then an attempt to think through these limits… other than that of the vulgarly ineffable.³⁸

The identification of infancy thus rejects transcendental presuppositions in favour of grounding language in the recognition of its own limits. This entails an acknowledgement that discourse cannot move beyond language, but instead must return to it as experience:

Infancy is an experimentum linguae… in which the limits of language are… found… in an experience of language as such, in its pure self-reference.³⁹

These limits are revealed in the fracture between language and speech, where what is intended cannot be fully articulated. For Agamben, this fracture is internal to language itself. Rather than attempting to overcome it, he reconfigures it as the difference between voice and language – sound and articulation – within which the possibility of a new ethics emerges:

The moat between voice and language… can open the space of ethics and the polis precisely because there is no… articulation between phóné [raw vocal sound] and logos.⁴⁰

It is precisely this absence of articulation that grounds ethical and political thought. By recognising it, one can reject the ungrounded presuppositions that have historically structured language, and instead affirm a use of language consistent with its potentiality. In asking ‘what… is the correct expression for language?’ and answering ‘human life, as ethos, as ethical way’⁴¹, Agamben advances a decisive reversal of the Aristotelian conception of man as a being defined by logos. Where Aristotle grounds politics in this essence, Agamben situates human essence in potentiality itself.

Agamben’s analysis of language thus marks the culmination of his account: from the identification of bare life as that which is included through exclusion in the state of exception, to the articulation of a new politics grounded in human potentiality. As the lynchpin of this argument, its stability is of decisive importance.

Criticism of Agamben

Agamben’s damning account of modern power is accompanied by only a schematic outline of a future politics grounded in a rejection of the human rights discourse he takes to be symptomatic of biopower itself. The force of his argument depends on two questions: first, whether his critique of Western political thought is successfully established; and second, whether his alternative adequately addresses the problems he identifies.

Agamben’s analysis calls for a radical rethinking of our political constitution, requiring the rejection of the metaphysical presuppositions underpinning our ontological heritage. This is expressed clearly in Homo Sacer:

…it may be that only if we are able to decipher the political meaning of pure Being will we be able to master the bare life that expresses our subjection to political power…⁴²

However, this reliance on wholesale rethinking has been criticised as excessive. His rejection of rights discourse, together with the indeterminacy of his future politics, has led some commentators – notably Ernesto Laclau – to characterise his position as a form of ‘political nihilism’:

By unifying the whole process of modern political construction around the extreme… paradigm of the concentration camp… he blocks any possible exploration of the emancipatory possibilities opened by our modern heritage.⁴³

It is worth noting, however, that this critique has been revised in more recent scholarship. Fusco argues that Agamben’s reluctance to elaborate a normative programme is itself a political stance: the refusal to prescribe a ‘recipe for revolution’ is internal to a philosophy oriented toward the deactivation of the principles of power, rather than its replacement.⁴⁴ The charge of nihilism, on this reading, may be less decisive than Laclau supposes.

Nevertheless, the difficulty is not thereby resolved. Agamben’s commitment to overcoming the separation of bios and zoé necessitates the invocation of a new politics, yet this conception struggles to account for the possibility of transformation within existing political frameworks. More fundamentally, his rejection of the metaphysical foundations of Western politics appears to entail a rejection of the value systems they sustain. As noted earlier, ‘every attempt to found political liberties in the rights of the citizen is… in vain’.⁴⁵

The difficulty, however, is that this rejection leaves unclear what evaluative framework might replace it. If biopolitical systems are oppressive only relative to the value systems within which they operate, then any critique of such systems must itself presuppose some account of what renders a political order non-oppressive. This raises a series of unresolved questions: what values ought to ground such an order? Do the rights of citizens, however historically contingent, retain a role in limiting state power? And can the state itself be wholly abandoned without forfeiting the institutional conditions necessary for the protection of those rights?

Without addressing these questions, Agamben’s position risks undermining its own critical force. If the existing value system is rejected in its entirety, there remains no clear basis upon which to judge his proposed ‘non-statist’ politics as preferable to the biopolitical arrangements he critiques. In this respect, the charge of political nihilism gains traction: the rejection of existing structures appears to foreclose, rather than enable, the possibility of meaningful social transformation. In this light, his call to ‘clear the way for the new politics, which remains largely to be invented’⁴⁶ appears to lack sufficient justificatory force.

The force of this objection is sharpened when set against the contemporary examples with which this paper opened. The practices of ICE – warrantless detention, the forcible separation of families, the suspension of due process – are not, on Agamben’s analysis, aberrations from an otherwise legitimate legal order; they are expressions of the biopolitical logic that order has always contained. Yet this is precisely where the difficulty of his position becomes most acute. If the existing rights framework is rejected as structurally complicit in the production of bare life, what resources remain with which to resist the treatment of those subjected to it? Agamben’s account identifies the condition of the undocumented migrant – reduced, in the eyes of the state, to naked life, stripped of the juridical identity upon which rights depend – with considerable precision. But precision of diagnosis does not provide the means of remedy. His refusal to articulate a normative framework capable of grounding resistance leaves the critical force of his analysis suspended at precisely the point at which it is most urgently required.

Conclusion

The scope of Agamben’s argument is striking, and his account of the deployment of biopolitical techniques within the Western political sphere carries a compelling cynicism, particularly in an age in which individual life often appears to assume a sacrificial quality in the name of ‘national security’. Yet persuasive force alone does not constitute a secure argumentative foundation.

Agamben’s project is driven by a sustained attempt to overcome the division between zoé and bios as a response to the pervasive operation of biopolitical power. This leads him to re-examine the nature of human essence and to advance an alternative account intended to ground a future politics: a non-statist form of community in which it is not language as such, but the potentiality for language, that defines human life, and in which life is conceived as unified and indivisible as form-of-life.

However, the abstract character of Agamben’s argument also marks its principal limitation. Given the scale of his claims, particularly the proposed continuity between totalitarian regimes and modern democracies, and the extremity of the examples mobilised in their support, it is problematic that his proposed resolution rests upon highly complex metaphysical reconfigurations. As a result, while his analysis is both original and incisive, it lacks the determinate grounding necessary to sustain or motivate concrete political transformation. More sympathetic readings have sought to reframe this indeterminacy as a principled refusal of normative prescription; yet this concession, however generously made, does not dissolve the difficulty. It carries particular weight when set against the condition of those most immediately subjected to the biopolitical forces his work so compellingly diagnoses.