Rachit Anand Dr.

Ira Raja 23-10-2013 The Floating Signifier In the State Exception Giorgio Agamben re-visited some pivotal questions in the domain of western political philosophy, the question that this text echoes is: Can the law have the capacity to suspend itself? If it does, then how do we conceptualize this law? Most crucially, does the law precede life, or is there a possibility of political action that would enable us to re-imagine law in different terms? This paper will attempt to examine all these questions and try to locate them in our current political hemisphere. At the very beginning of this book, Agamben announces the focus of his study to be the "...no-man's-land between public law and political fact...." This requires further scrutiny in order to assess the weight of what is being suggested. Public law, in the modern sense, is defined as the "law of relations between the state and its citizens". State is a complicated notion in itself, Bordieu's assessment of this concept in "Rethinking the State" can be helpful to take this argument further. He proposes that the "state is an X (to be determined) which successfully claims the monopoly of the legitimate use of physical and symbolic violence over ... the totality of the corresponding population." Following this understanding of the State, Public Law can be understood as the zone of legitimacy or a mutual contract of what is considered legitimate in terms of violence between this monopolistic body (called the state), and the citizens. Then, the very occurrence of a state of exception or the no-man's land between the public law and the

political fact becomes a violation of this mutual contract. However, it is not looked upon as a violation in legal/juridical terms. To see what allows the State to violate the mutual contract and yet not violate it, let's revisit Bordieu's assessment of the state, he adds, "...the instituted institution makes us forget that it issues out of a long series of acts of institution (in the active sense) and hence has all the appearances of natural." He is suggesting that the State manages to appear natural, despite being a series of manufactured institutions. If we work with this postulation, then we can see that this appearance of being natural validates the creation of a no-man's-land between the Public Law and the Political Fact, as something, so seemingly natural, is not suspected of being self-contradictory. The glaring question here is: what is added to this series of manufactured institutions to make it appear as a natural body? This paper shall argue that the answer to this question lies in the figure of the Auctoritas and its distinction from Potestas. These terms are discussed in detail in the concluding chapter of Agamben's book. With reference to private law, Agamben defines the Auctoritas as he who "confer(s) legal validity on the act of a subject who cannot independently bring a legally valid act into being" (76). He uses the example of a son whose marriage the father "authorizes" and thus makes valid in potestate. He adds, "The auctors act is not founded upon some sort of legal power vested in him to act as a representative ... it springs directly from his condition as pater." (77) On the other hand, potestas is the power of the magistracy to implement a law, which Agamben clearly differentiates from the power of the Auctor. He argues that the power of the Auctor is not derived from potestas but the authority of being an Auctoritas, the "father" itself. He says, "...there is that duality of elements that in the sphere of private law defines the

perfect legal action. Auctoritas and potestas are clearly distinct, and yet together they form a binary system." (78) To concretize this distinction further, Agamben draws upon the Roman law of Iustitium. It was a provision under which the senate could issue its "final decree", which was to suspend the potestas or enforce a new one. Iustitium literally translates to "standstill" or "suspension of the law". He elaborates that, "Under extreme conditions ... auctoritas seems to act as a force that suspends potestas where it took place and reactivates it where it was no longer in force. It is a power that suspends or reactivates law, but is not formally in force as law." (79) It is clear from this that the power of the Auctoritas extends beyond the reach of the potestas. The Auctoritas derives its authority directly from being a pater and not from the potestas. This is foreshadowed in the very title of Gabriel Garcia Marquez's "Autumn of the Patriarch". The central figure in this novel establishes and enforces his rule by the authority of being the Pater or the Patriarch and not by the authorities vested in him by the potestas. Agamben applies these legal Roman terms to twentieth century political figures like Hitler and Mussolini by adding that, "The qualities of Duce or Fhrer are immediately bound to the physical person and belong to the bio-political tradition of auctoritas and not to the legal tradition of potestas." (83) We can extend Agamben's framework and trace the figure of the Auctoritas in the Indian politician Bal Thackeray. The rhetorical and physical violence that he and his political party employed to reserve various state funded facilities for the natives of Maharashtra and to expel the non-natives is a compelling example of the authority of the Auctoritas stretching beyond the realm of the Potestas. Moreover, the mourning ceremony of Thackeray's death,

attended by massive crowds, bringing public life to a standstill, is a fitting example of the aspect of iustitium that Agemben discussed in the chapter titled, "Feast, mourning, Anomie". According to Agemben's framework, this existence and not existence of law is a linguistic paradox, which runs undercover in Carl Schmitt's Political Theology. The jurist Schmitt maintains that this temporary suspension of law is not the same as anarchy or the lack of an order. According to him, in a state of exception, the juridical order is still in force. Agamben takes this forward and tackles the linguistic confusion head-on by arguing that in a state of exception the force of law is in place but absent at the same time, the very law which enables this force is not present. He states, " Being-outside and yet belonging is the topological structure of the state of exception..." (35) He uses structural linguistics to assert that, "Just as linguistic elements subsist in langue without any real denotation, which they acquire only in actual discourse, so in the state of exception the norm is in force without any reference to reality." In other words, Langue can be studied or realized only in praxis or parole and the untying of the signifier in langue from its denotation in parole gives birth to a floating signifier, which Agamben calls the "guiding concept in the human sciences of the twentieth century". (36) This corresponds to the word "Law" in the "force of law", where law is applied and not applied at the same time. The concept of law as it exists in langue is still in force but it is missing from the actual practise or the political fact. Thus, it creates a no-man's-land between public law and political fact. According to Schmitt, this floating signifier is within the bounds of the juridical framework while on the other hand, Walter Benjamin looks at it as neither law preserving nor law making and he calls it divine violence.

This floating signifier can be claimed by an Auctor within the state as well as a revolutionary outside the state as is seen in various South American political coups and in literary pieces like Joseph Conrad's Nostromo and Marquez's One Hundred Years of Solitude. Whoever can claim this floating signifier holds the authority over the potestas. What is significant in Agamben's breakthrough is that this state of exception is not conceptualized as an aberration but the rule. Parallel to the first floating signifier is another floating signifierthe bio-political life of the subjects. Agamben terms it as Bare life in Homo Sacer. He reappropriates the Roman legal status of a Homo Sacer, who can be killed or harmed by anyone but he is considered sacred and cannot be sacrificed in a ritual. Agamben juxtaposes the figure of the Homo Sacer and the citizens of modern democracies to recover the true nature of the current political structure from the meshes of discourses, where the citizens hold inalienable rights. Puspa Damai in his essay "The Killing Machine of Exception" points out that "by bringing Schmitts notion of the exception and Foucaults insight on the control of life into one 'bio-political plane,' Agamben succeeds in conceptualizing the 'original political structure' in which sovereignty and bare life interface". Moreover, bare life comes into existence at the same time when the sovereign is formed. Agamben uses the metaphor of a refugee camp to theorize the bio-political condition of this bare life. As noted by Judith Butler in Precarious Life, the United States of America's "war on terror" post 9/11 and its operations in Guantanamo Bay are fitting examples of bare life. It is important to note that it is not just in places outside the political jurisdiction of the USA that this pure violence is perpetuated, but the citizens of various ethnicities within the borders are also subjected to it. Agamben asserts that, "Bare life is a product of the machine and not something that pre-exists it, just as law has no court in nature or in the divine mind." (87) In other words,

Bare life is a direct product of the fiction of law and its seemingly natural relation to life. In the concluding section of the book, Agemben proposes that in the current condition the only way to access law and life is through this fiction. What is needed, according to Agamben, is to unmask this fiction in order to "separate what it claimed to unite", that is law and life. But, he also warns that disenchantment does not mean a point of pure origin, but it is a new condition where the players are aware that what they are indulging in is a piece of fiction. He anticipates that, "One day humanity will play with law just as children play with disused objects, not in order to restore them to their canonical use but to free them from it for good. What is found after the law is not a more proper and original use value that precedes the law, but a new use that is born only after it." (64) This future of the relation of law and life that Agamben proposes can be understood through the model of Brecht's Epic theatre, where the audience is always reminded that they are watching a play, that it is a piece of fiction and not reality. The audience is constantly yoked out of their passivity and made active "players" in the theatre's machinery. Agamben is envisioning a world where just like the audience and the actors in Brechtian theatre, the people will be aware of the fiction of the machinery of law and play with it to find a new use for it.