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Legal Theory Essay

2577 words - 11 pages

Both legal theory and theories of the state stand at a crossroads today. The modern state has transformed quite radically from its traditional image. According to Habermas’ account, in traditional societies, “the law made by the ruler remained subordinate to the Christian natural law administered by the Church”. The social integration was a result of bonding convictions which came from the mythical narratives and ritual practices. However, in the postmodern situation with all its complex interrogations of Universalist claims and a predominantly secular society such as ours, “the normative order is maintained without such metasocial guarantees”. Such a situation leads to a specific question: ...view middle of the document...

This replacement of natural law with the enacted/positive law tends to circumscribe freedom and simultaneously give it unhindered play.
This serves as the entry point to Agamben’s notion of “bare life” (a life that has no significance beyond the fact of its existence) whose politicization decides the “humanity of living man”. In a state of exception, the realm of bare life coincides with the political realm so much so that the distinction between exclusion and inclusion, outside and inside, bios and zoe ceases to exist. This serves to expose that the law truly “has no existence in itself, but rather has its being in the very life of men”. The law and fact becomes totally indistinguishable. Moreover, Agamben states that, the “threshold on which violence passes over into law and law passes over into violence” is the place of sovereignty. So the sovereign is, at the same time, “outside and inside the juridical order and also the one who decides the exception”. This, according to Agamben, is the ultimate paradox of sovereignty. The place of the sovereign, as Agamben has suggested, is a place where the outside is brought inside the community. Homo sacer, the one who is "captured in the sovereign's ban", the one who may be killed without committing homicide but not sacrificed, can be compared to the sovereign in the sense that he also is outside the normal juridical order. Thus, Agamben argues that the “political space is 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”.
Agamben's most explicit argument about overcoming state sovereignty is human capacity to think potentiality which alone can render sovereignty inoperative. Dissatisfied with all theories of constituent power as they relate power to law and fail to sever the connection between constituting and constituted power, Agamben becomes intrigued by Antonio Negri's effort to reconceive constituent power as the power of potentiality. In other words, Agamben emphasizes the shift from a "strictly political concept" to a "category of ontology," the shift, that is, from "political philosophy to first philosophy". Only once a "new and coherent ontology of potentiality," Agamben argues, "has replaced the ontology founded on the primacy of actuality" will a "political theory freed from the aporias of sovereignty" become conceivable.
Agamben argues that in contemporary politics, the state of exception identified by Schmitt in which the law is suspended by the sovereign, has in fact become the rule. And he identifies this condition with that of abandonment, in which the law is in force but has no content or substantive meaning—it is “in force without significance.” The structure of the exception then becomes directly analogous to the structure of the ban identified by Jean-Luc Nancy in his essay “Abandoned Being”, since in both the cases “the law only...

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