What does Agamben mean when he argues that the law is a state of exception? What does it mean that it includes us by excluding us and excludes us by including us? His argument revolves around the idea of sovereignty of our tradition, since the sovereign is that who “is, at the same time, outside and inside the juridical order.”¹ Because he can say: “I, the sovereign, who am outside the law, declare that there is nothing outside the law”² us, the herd, are forced to live within a law that excepts itself, that is constantly suspended in order to assert itself. From this point of view, the basic structure of the law is exception and in its most extreme form anything “is included solely through its exclusion.”³ This inclusion in exclusion and exclusion in inclusion, which Agamben calls relation of exception, is the juridical form of the locus terribilis.

This peculiar position gives the sovereign a very peculiar privilege (private law): being simultaneously inside and outside of the law, he acts as a zone of indistinction between law and violence with the certainty that the latter will not reach him. The sovereign finds in the executioner and in the police—illustrious guardians of the polis—his closest relatives, a matter that explains the appearance of deeply repressive and violent police states at both ends of the political spectrum. If both right and left share something is their idea of sovereignty. The sovereign, autocrat or democrat, tyrant or elected (and, more recently, elected tyrant), is the hinge between the two political poles.

For Agamben the justification of sovereign violence has its origin in a circumstance that goes back to the two aspects of the concept of life in Greek culture: “zoē, which expressed the simple fact of living common to all living beings (animals, men, or gods), and bios, which indicated the form or way of living proper to an individual or a group.”⁴ Thus, the natural place of bios was the polis which, as a social structure, strictly excluded zoē. From this division arises a concept which Agamben names nuda vita (bare life) which is the representation that sovereignty makes of zoē, natural life.⁵ This bare life is the fiction of human life from the point of view of power, which must be abused and excluded in order to be included in the social and legal spheres.

1. Giorgio Agamben, Homo Sacer, 12. ↩︎
2. Ibíd. ↩︎
3. Ibid., 69 ↩︎
4. Ibid., 9. ↩︎
5. Zoē, says Karl Kerenyi, “means not only the life of men and and of all living creatures but also what is eaten. In the Odyssey (XVI 429), the suitors wish to ‘eat up’ the zoē of Odysseus.” (Kerenyi, Eleusis, xxv). Thus, we see that what the sovereign actually protects and devours is life in its facet of zoē.