A Study On Agamben’s Legal Thought

Giorgio Agamben is a prominent publicist, political philosopher and esthetician in Europe. Together with Slavoj Zizek, Alain Badiou and Jacques Rancière, Agamben is treated as one of four popular European leftist thinkers. His publications cover the topics of law, philosophy, political science, linguistics, aesthetics and religion. In his early career of research, Agamben focused mainly on the philosophy and aesthetics. From the mid-1990 s, he has put the attention on law and political science. The thoughts of Agamben have been influenced by Aristotle, Schmitt, Benjamin, Kafka, Heidegger, Arendt, Foucault and Derrida. His major works on law are State of Exception, Sovereign Power and the Bare Life, Notes on Politics, Remnants of Auschwitz and Sacrament of language. Agamben’s insights on law comprise of constitution, human rights law, forensic linguistics and legal religion.In the area of constitution, the core of Agamben’s thoughts is ‘state of exception’. He explores this concept from the perspective of legal history and legal philosophy. The prototype of the ‘state of exception’ could be traced back to ‘iustitium’ in the era of Roman Republic. In Middle Age, ‘state of exception’ was presented in the form of ‘necessity has no law’, which was transformed into ‘necessity creats law’ in modern times and it could be seen in the history of‘state of exception’in Britain, France, Germany and United States. Currently, ‘state of exception’ has been widely seen in US after 9-11. It seems that the ‘state of exception’ has gradually become the major paradigm of governance in modern politics. The essence of normalization of ‘state of exception’ is the relationship between legislature and execution, namely the intervention of executive power into legislative power. Agamben’s thoughts on ‘state of exception’ is impacted by Schmitt’s idea of ‘resolution theory’. The key of this idea is that ‘the sovereign decides ‘state of exception”. This idea of Schmitt is against the liberal jurist Kelson. Unlike Schmitt, Agamben does not hope to defend the exceptional position of the sovereign; rather he just tries to give his own arguments ironically. The nature of ‘state of exception’ is inclusive exclusion. Speaking of its form, ‘state of exception’ is between the nomos and anomie. The theory of ‘state of exception’ not only relates to an issue of emergency power in the area of constitution, but also covers the topic of origin of law and relationship between law and facts in the area of jurisprudence.After 9-11, within the circle of constitutional jurisprudence, the debate on the use of emergency power has been raised. In this debate, ‘Extended model’,‘Outside of law model’, ‘Statute law model’, ‘Common law model’ and ‘Critical model’ are identified.The extended model affirms the extensive uses of emergency power under the urgent status. Outside of law model discards any legal status of emergency power in order to sustain the purity of rule of law. Statute law model raises a clear distinction between normal law and emergency law, but the latter should meet the requirements set by constitution. Common law model blurs the demarcation between normal law and emergency law, but both of them must correspond with the spirit of law. Similar to ‘outside of law model’, ‘statute law model’ and ‘common law model’, Agamben’s ‘critical model’ also contributes to the criticism of ‘extended model’. However the Agamben’s criticism insightfully points out the trend of normalization of ‘state of exception’ as well as the nature of totalism in it.The key concept of Agamben’s thoughts of human rights is ‘bare life’. There are several images of ‘bare life’ in different historical periods. Homo sacer, the ‘wolfmen’, refugee, living dead in the concentration camp and detainee without any legal status are all typical images of ‘bare life’. In the state of ‘bare life’, the social attributes of life has been to some extent deprived, or, in other words, the life are in the legal ‘state of exception’, and at the same time life is in the shadow of violence. For Agamben, human rights does not exist independently, rather the realization of human rights depends on a complete circle, namely first realization of sovereignty, then of civil rights and finally of human rights. Thus Agamben’s thoughts of human rights are based on nation-states. Thanks to Foucault and Benjamin, Agamben raises the concept of ‘bare life’. Foucault argues that in modern society, life has been the symbol of politics and law; Foucault’s radically critical spirits also impact Agamben. Benjamin, by distinguishing violence of law-making and violence of law-preserving, attempts to establish a kind of pure violence that is beyond the circle of violence of lawmaking and violence of law-preserving in order to oppose the Schimittian violence and decision of sovereign towards life.Agamben discusses two important forms of legal language, namely the deposition and oath. By textual researching the etymology of ‘witness’ and analyzing the ‘Muslims’ in Auschwitz, Agamben displays the paradox of deposition: the witness of Nazi holocaust is ‘Muslims’, but the ‘Muslims’ is not able to testify. This analysis on the paradox, if applied to legal practices, could be seen as the difficulty of deposition. The difficulty of deposition might be one of the important reasons why light punishment is widely seen in criminal justice now. Agamben tries to remove the sacred elements from the oath and then secularize the explanation of oath. Agamben asserts that oath is an empirical process of language, which is interpenetrated by legal process, not totally the religious elements. In legal linguistics, the vagueness and accuracy are always keys to the legal languages. In Agamben’s view, there is a structural Analogy between language and law, in other words, behind language and law, an orientation of power or objective exists. In that sense, the nature of legal language is legal non-language. Thus the value of legal language does not lie in the language itself, but in the context of the language.Many core concepts of Agamben are formed in the knowledge background of religion. Both of the concepts of ‘state of exception’ and ‘bare life’ are inspired by region studies. To resolve the normalization of the ‘state of exception’ that is a structural problem for all countries, Agamben appeals to Messiah methods. Messiah first suspends existing legal relationship and then, under the context of structural transformation, call for a new community. In terms of the relationship between 4religion and law, both Agamben and Berman emphasize on the hybridity of religion and law in the early stage of human society, and they both think that in the current process of crisis resolution, faith could help. Berman raises the proposition of ‘law must be believed in’, and Agamben deeply demonstrates the nature of the belief—i.e. the proximity of mouth and heart, or the correspondence of thinking and speech.The legal thoughts of Agamben have implications to China’s judicial practices of the state of emergency. Agamben writes that the state of emergency must be clearly and completely demarcated, otherwise this state would be normalized. This argument might contribute to systematic and scientific legislation of the state of emergency. In the state of emergency, the executive power tends to be extended and abused, but Agamben’s theory of ‘state of exception’ will help to regulate the uses of the executive power. At the same time, in the state of emergency, the human rights might be eliminated; however Agamben’s theory reminds us that the elimination of the human rights must be regulated in terms of the level and degree, and a complete judicial process of its elimination is also needed.Agamben’s theory of ‘bare life’ has implications to the development of life jurisprudence. In China, life jurisprudence achieves rapid progress in a very short term, but it lacks the supports of jurisprudence. By applying the concept of ‘bare life’, Agamben tries to express a respect on the life and a resistance to the violence imposed on life. On the basis of Agamben’s legal thoughts, we compose two principles of life jurisprudence, i.e. self-determination and social consultation. Furthermore, Agamben’s thoughts of human rights are also helpful to theoretical development in the field of human right in China. The meaning of Agamben’s thoughts of human rights is as follows: first, his basic ideas of human rights might contribute to the generalization and explication of China’s theory of human rights; second, his critiques of humanitarian aid might contribute to our further exploration of political motivation behind the Western ideas of human right; thirdly, his discussion on torture might be a stimulus to China’s judicial practices.Agamben’s studies on legal linguistics also facilitate the development of relative fields in China. Within China, the studies on legal linguistics are less than systematization and theorization. Thus Agamben’s arguments on legal linguistics might contribute to the development of the research in this area. Agamben’s discussion on the dialectical relationship between legal text and application of law is helpful both to China’s legislative and judicial practices. Moreover, Agamben’s ideas of ‘difficulty of deposition’ could support the trend of light punishment in China. Finally the dialectical relationship between legal language and legal non-language raised by him could contribute to the transformation of China’s judicial practices from structural judicature to procedural judicature.Agamben’s argument on the nature of belief depends the discussion on the relationship between belief and law. Berman’s proposition of ‘law must be believed in’ causes application difficulty in China. Agamben gives a relatively thin definition of ‘believe in’. He defines belief as the proximity of mouth and heart and the correspondence of thinking and speech. In other words, it also means correspondence of thinking and behavior. If the correspondence of thinking, speech and behavior is achieved, law is de facto believed in. In that sense, law could agree with belief and they could also complement each other. Moreover, Agamben’s discussion on oath reflects on the importance of authority building in secular times. The fall of oath reveals the decline of sanctity in secularized society, but sanctity is the basis of authority. In secularized society, god-judging is obsolete so that it could not be used in judicial practices; however people still need an object to which is final appealed. Constitution plays this role in secular times and swearing an oath to the constitutional law might be the effort to rebuild the authority of law in secularized society.