giorgio agamben’s fulfillment of metaphysics

diacritics / summer–fall 2007 11

From the SacriFice oF the Letter to the Voice oF teStimonyGiorGio aGamben’S FuLFiLLment oF metaphySicS

Jeffrey S. Librett

by denying us the limit of the Limitless, the death of God leads to an expe-rience in which nothing may again announce the exteriority of being, and consequently to an experience which is interior and sovereign. but such an experience, for which the death of God is an explosive reality, discloses as its own secret and clarification, its intrinsic finitude, the limitless reign of the Limit, and the emptiness of those excesses in which it spends itself and where it is found wanting. —michel Foucault, “preface to transgression”

Can there be a discourse that, without being a metalanguage or sinking into the unsayable, says language itself and exposes its limits? —Giorgio agamben, “the idea of Language”

i shall not rest until every German sees that it is a shameful thing to be a lawyer. —adolf hitler, speech before the reichstag, april 26, 1942

From his early works on, Giorgio agamben has opposed the thought of no contemporary philosopher more consistently and programmatically than that of Jacques Derrida, whose questioning of phonocentric metaphysics agamben has tried to replace by a characteriza-tion of metaphysics as (what i am calling here) graphocentric. to go back behind the re-placement of the voice by the letter is for agamben to recover the event of language itself, the taking-place of language as being.1 in his conceptualization of the project for such a recovery, as we shall see, agamben’s commitment to heidegger’s fundamental ontology is overdetermined by his investment in the christian God as logos. this philosophical program in agamben’s early essays guides his later work on the homo sacer-sovereign relation but also distorts and disturbs the later work in three princi-pal ways. First, it prompts him to propose an exclusively juridicopolitical understanding of the sacredness of the homo sacer, effectively scapegoating the juridical sphere for a more broadly theopolitical problem, while placing the specifically Christian background

1. the relationship between Agamben and Derrida is laid out with admirable clarity and subtlety by Adam thurschwell in two articles, “Cutting the branches for Akiba” and “Specters of Nietzsche.”

diacritics 37.2–3: 11–33

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of his antinomianism in a misleadingly secular, rational, and universalist light. Symp-tomatically, in order to accomplish this juridicopolitical reduction agamben must reject Bataille’s analysis of sacrifice—along with the entire modern anthropological reading of the sacred—out of hand. For this rejection protects his discourse against any sustained confrontation with the importance of the sacrificial dimension for both what he calls the homo sacer and his own approach to law in his theorization of the homo sacer. Second, agamben’s philosophical program impoverishes the account he provides of the nazi death camps as an extreme example of the sovereign-homo sacer relation by making it impossible for him to appreciate the importance of christian antinomianism in the formation of national Socialist ideology. For agamben’s philosophical orientation requires or presupposes that he ignore or underestimate, first of all, the sacrificially anti-Semitic dimension of christian antinomianism—the tendency of such antinomianism to make Judaism responsible for the ontological desert into which representation exiles us all. Further, as a consequence of his continuing commitment to this tradition, agamben cannot see how important the tradition remains, even if in a displaced form, for nazi anti-Semitism. i argue that agamben’s animus against the letter blinds him to the chris-tian and sacrificial dimensions of the Holocaust—he ignores the former and explicitly, emphatically denies the latter dimension—because this animus represents his own com-mitment to the christian antinomianism that, in its racialized national Socialist form, attempts to rid itself of the letter by sacrificing not only Judaism but the (biologically, racially construed) Jews. because his radically antinomian program would become un-settled by his recognition of its important overlap with the ideological bases of national Socialism, Agamben cannot ultimately acknowledge the Christian and sacrificial aspects of the holocaust. Finally, in remnants of Auschwitz—his main reading (outside of Homo Sacer) of the significance of the Nazi death camps—Agamben positions “testimony” as the exemplary instance of the speaking of speech, the taking-place of language. the result of the destruc-tion of european Jewry becomes here the revelation of poetic speech as a manifestation of the absolute. unwittingly, agamben ends up participating in the very kind of theodicy he ostensibly wished to avoid by denying the sacrificial character of the Holocaust in the first place. This observation makes it difficult to avoid the conclusion that his politics is to be founded not merely on metaphysics, as adam thurschwell rightly stresses, but also on positive religious commitments [see note 1] as in turn his religion—or his messian-ism—is, as he repeatedly suggests, to be realized as a politics.2

the Overcoming of Graphocentric Metaphysics

For at least three decades, the philosophical project of Giorgio agamben has been the overcoming of what he takes to be the graphocentrism of metaphysics from aristotle onward.3 as he puts it in Language and Death: the Place of Negativity (1982): “from the beginning, Western reflections on language locate the gramma and not the voice in the originary place” [39]. agamben believes he can make this surprising claim because the voice, even when it is posited as origin, is always posited as lost, as an origin that has already been replaced by the letter:

2. See, for example, the genuinely rousing conclusion of State of exception: “the only truly political action . . . is that which severs the nexus between violence and law” leading to “the use and human praxis that the powers of law and myth had sought to capture in the state of exception” [88]. 3. this project is discernible at least as early as Stanzas: Word and phantasm in Western cul-ture [152–58]. Stanzas was originally published in italian in 1977.


metaphysics is not simply the primacy of the voice over the gramma. if meta-physics is that reflection that places the voice as origin, it is also true that this voice is, from the beginning, conceived as removed. . . . Metaphysics is always already grammatology and this is fundamentology in the sense that the gramma (or the Voice [Agamben’s term for the voice conceived as absent or lost]) func-tions as the negative ontological foundation. [39]

in other words, the gramma functions as a groundlessness at the ground, an originary negativity that must be overcome in order for philosophy to attain its traditional goal of a positive appropriation of all presuppositions. agamben grants that “we must honor Derrida as the thinker who has identified with the greatest rigor . . . the original status of the gramma and of meaning in our culture” [39]. he goes on to object, however, that although Derrida thought he “had opened a way to surpassing metaphysics” [39], Der-rida was mistaken about this, and had “merely brought the fundamental problems of metaphysics to light” [39]. it is itself problematic to suggest that Derrida claims he can surpass metaphysics, since he repeatedly insists precisely on the metaphysical character of all such claims, but be that as it may, agamben will seek to overcome metaphysics by overturning the privilege of writing, which effaces the “taking-place of language” [102], or being itself. Agamben clarifies in philosophico-historical terms this characterization of meta-physics as the placement of the gramma at the origin and goes on to explicitate what he takes to be the task of current philosophy in an essay published two years after Language and Death, “the thing itself” (1984), which is dedicated—a curious “gift”—to Jacques Derrida.4 here, in a heideggerian idiom, agamben reads plato’s references to “the thing itself” (ta pragma auto) in his Seventh Letter as referring to the “sayability itself” and “knowability itself” that remain unsaid and unknown in all propositional uses of language (which agamben characterizes as “presuppositional and objectifying” [33]). agamben’s ambition, as sketched out in this essay, is to develop some way of speaking of this “thing itself,” that is, “not by means of a presupposition but absolutely” [33]. he wants to go beyond the “effacement of the thing itself” [35] to “the very sayability, the very openness at issue in language, which, in language, we always presuppose and forget” [35]. thus:

the task of philosophical presentation is to come with speech to help speech, so that, in speech, speech itself does not remain presupposed but instead comes to speech. At this point, the presuppositional power of language touches its limit and its end; language says presuppositions as presuppositions and, in this way, reaches the unpresupposable and unpresupposed principle (arkhē anypothetos) that, as such, constitutes authentic human community and communication. [35]

the unlimited limitation that is language ends when we speak the full presence of speech, beyond all representational mediation. Agamben’s impatience with endless finitude ap-pears here in his insistence that a point can be reached where there is no longer any lack, isolation, or inauthenticity. having announced this “task of philosophical presentation,” agamben goes on to trace what he takes to be the place at which the platonic “thing itself” gets lost—in aris-totle’s De interpretatione, where “aristotle absolves writing of its weakness” [37]. in this text, aristotle claims that:

4. It is also dedicated to the memory of Giorgio Pasquali, whom Agamben cites as a significant Warburg scholar elsewhere.

Organizing map of New Orleans 1 (2007)


the letter, as the interpreter of voice, does not itself need any other interpreter. It is the final interpreter, beyond which no hermēneia is possible: the limit of all interpretation. . . . the gramma is thus the form of presupposition itself and noth-ing else [marking the voice as what] always already belongs to the past. [37]

thus, we see here that writing poses an intolerable limit for agamben, the limit that is limitless limitation or unending mediation. For it functions to prevent us infinitely from gaining access to the full presence (of the voice), separating us from our own being and its meaning. the false privilege of writing in Western metaphysics—indeed, writing it-self—has to be overcome. but it is not just platonic references (or heideggerian ones) that drive agamben’s alignment of writing with bad representation and his association of voice with the good presence or presentation of the thing itself. this set-up is also powerfully and explicitly overdetermined by christian thinking, in the pauline tradition, as the metaphysics that poses God qua logos by polemicizing, in favor of the living spirit (spirit as life), against the “dead letter” of the law.5 this tradition is prominently visible in another essay, “the idea of Language,” published in the same year as “the thing itself.” agamben’s starting point in “the idea of Language” is nothing other than revelation, as an ontological com-munication whose content cannot be known by reason or language otherwise (that is, by “presuppositional and objectifying” thinking). revelation is called “christ himself, that is, the Word of God” by christian theologians, although, as agamben hastens to add, it is called the “name” of God by Jewish theologians (who, however, disappear from this es-say thereafter, except for a brief reference to hermann cohen).6 in this context, he quotes Corinthians, where Paul speaks of his divine dispensation to “fulfill the word of God” [40]. and he goes on to give this “word” a fundamental-ontological twist (assuming this twist is not already made by heidegger, a question we can leave in abeyance here):

the content of revelation is not a truth that can be expressed in the form of lin-guistic propositions about a being (even about a supreme being) but is, instead, a truth that concerns language itself, the very fact that language (and therefore knowledge) exists. [40]

revelation, then, says the that of the being (existence) of language, and so of the world. agamben continues:

the meaning of revelation is that humans can reveal beings through language but cannot reveal language itself. in other words: humans see the world through language but do not see language. this invisibility of the revealer in what is revealed is the word of God; it is revelation. this is why theologians say that the revelation of God is also His conceal-ment . . . what is revealed here is not an object . . . what is revealed here is unveil-ing itself, the very fact that there is openness to a world and knowledge. [40].7

5. i have shown the importance of this typological structure for the disastrous (non)relation between Germans and Jews in the rhetoric of cultural Dialogue: Jews and Germans from moses mendelssohn to richard Wagner and beyond. 6. Note that, in homo Sacer, Agamben writes of rudolf Otto as presenting “a theology that had lost all experience of the revealed word” [78]. 7. it is as if Agamben were answering here the eighteenth-century question about the origin of language—as human invention or gift of God—by defending the latter proposition.

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agamben establishes, then, a profound continuity between pauline christianity and the heideggerian thinking of being. But further, Agamben links the Being of the Word here specifically with the motif of the originary voice, following through on his stated desire to overcome graphocentric metaphysics. considering the thought of revelation in the medieval rationalist guise it receives in the ontological argument, agamben goes on to claim that anselme’s argument is plausible on condition that one understand it as referring to language (or God as Word, Word as God): “there is a being whose nomination implies its existence, and that being is language” [41]. but more narrowly, this being appears in agamben’s further discus-sion of Anselme under the figure of the voice: “voice as pure indication of an event of language” [42]. agamben positions this voice as prior to meaning and subsequent to the sensation of sound, so that it “speaks” to us by recalling the realm of the aesthetic, as the interpenetration of supersensuous sense and sensation. Further, agamben’s analysis cul-minates in the telos of, and indeed the definition of philosophy as, a “vision of language.” the crossing of the voice into vision establishes a kind of absolute synesthesia (combin-ing the two traditionally “spiritual” senses of sight and hearing), carrying us beyond sen-sation toward meaning in the between that is the beyond of all beings, being itself: “and this voice coincides with the most universal dimension of meaning, being” [42]. in this essay, agamben brings his christian heideggerianism to bear on contempo-rary philosophy by opposing the voice as vision of language to writing in the Derridean sense. once again, he refers (but here only implicitly) to Derrida, calling him “an authori-tative current of contemporary French thought” that “posits language in the beginning and yet conceives of this dwelling in the arkhē according to the negative structure of writ-ing and the gramma” [44]. but what is the danger or problem that the gramma represents for agamben? again agamben objects that deconstruction leaves us with an “unground-edness”—what he called “the negative ground of metaphysics” in Language and Death. the letter provides an (un)grounding of comprehension only in the “incomprehensible,” whereas “what should be the philosophical task par excellence” is “the elimination and ‘absolution’ of presuppositions” [45]. Further, this “incomprehensible” term poses not just a limit but a limitlessness, a ground that ungrounds us and in which we are lost, abandoned, alone. Agamben objects here to a situation in which “we finally find ourselves alone with our words; for the first time we are truly alone with language, abandoned with-out any final foundation” [45]. It is a certain aloneness, a certain exposure of life to death, that agamben would like to avoid. this aloneness is an experience of groundlessness that is also one of limitlessness, the limitlessness of the limitation that is the letter of language. agamben asks if there cannot be “a discourse that, without being a metalanguage or sink-ing into the unsayable, says language itself and exposes its limits” [46]. or again: “if the presuppositional power of language knew no limits, then there would truly be no possible experience of the limits of language” [46]. Seeking, then, a limit to limitation (since language as letter, presupposition, objectification, and representation implies limitation), agamben wants to see and hear a limit that is itself limitless—absolute—and an end of the relativity of mediation. this is what he calls the “idea” of language.

Language, which for human beings mediates all things and all knowledge, is itself immediate. Nothing immediate can be reached by speaking being—noth-ing, that is, except language itself, mediation itself. for human beings, such an immediate mediation constitutes the sole possibility of reaching . . . that arkhē anypothetos, that “unpresupposed principle” that Plato . . . represents as the telos, fulfillment and end of autos ho logos, language itself: the “thing itself” and essential matter of human beings. [47]


This experience of the (totalized) immediacy of (infinite) mediation would constitute “the vision of language itself and, therefore, the experience of language’s limits, its end” [47]. in response to what Foucault, reading bataille, characterized strikingly and aptly as the limitlessness of limitation insofar as “God is dead,” agamben wants to overcome the “ni-hilism” [46] of contemporary philosophy by (re)installing an experience of the absolute limit, the limit of the limitless, language totalized as being of the Word of God.

Fulfilling the Law of the Metaphysical Letter in homo Sacer

how does the philosophical project sketched in these earlier essays make itself felt, or prolong itself, in the later work on the homo sacer, auschwitz, and the state of exception, which has a somewhat more directly political and historical cast? and how is this conti-nuity related in turn to the fact that agamben never asks in these later writings why it is specifically the Jews who become the objects of the Nazis’ murderous hostility?8 on the one hand, Homo Sacer, State of exception, and remnants of Auschwitz make almost no reference to christianity as such, and to the role of christianity—and of its typological tradition—in the constitution of nazism. that is, these books nowhere thema-tize the sense in which christian motifs become displaced and transformed within nazi racism or “biopolitics,” one of whose necessary conditions of possibility they remain. on the other hand, the third and final epigraph with which Homo Sacer begins is from Saint paul: “and the commandment, which was ordained to life, i found to be unto death.” and he nowhere contests such a sentiment within the book—indeed, quite the contrary. even more crucially, he later writes the book on paul in which, although he tries to miti-gate or soften the notion of abrogating the law by emphasizing that the law is only to be “suspended,” he proposes paul as realizing Jewish messianism. We must therefore take agamben to be inscribing his project still under the heading of the notion that the letter of the (Jewish) law kills, while the spirit of the (christian) revelation gives life.9 in light of this inscription, how exactly is the book’s overarching paradigm linked to the christian heideggerianism we have constated above in agamben’s essays from the early 1980s? in Homo Sacer, agamben is concerned with the way in which, since the Greeks, and notably aristotle, politics—or what agamben often calls the “juridico-political”—has been conceived such that bare life, or zoē, must be absorbed into the polis, transformed into and replaced by bios, an already humanized animality. For agamben, however, the problem is that zoē always ends up being excluded from this same polis which incorpo-rates it into itself. Just as agamben argued in “the thing itself” that aristotle installed the letter in the place of the original voice of being, absorbing the voice into the letter as an excluded or forgotten Voice, so in Homo Sacer agamben cites and discusses the “passage in [aristotle’s] Politics [that] situates the proper place of the polis in the transi-tion from voice to language” [7]. the passage from phonē to logos, he says, is equivalent

8. evidently, Agamben’s failure to pose this question is not the consequence of any lack of positive investment in Jewish texts and Jewish history, as his scholarship and writing amply dem-onstrate, including his appeal to benjamin as a kind of master thinker, even one he says has saved him from certain Heideggerian seductions. indeed, my suggestion is that, among other points of reference, Agamben identifies with Judaism broadly speaking, and more narrowly with Benjamin. But any identification entails an appropriation, and the appropriation here follows traditionally Christian lines: Agamben reads messianic antinomianism through benjamin as the essence of Ju-daism. Of course, Agamben’s contribution to Benjamin studies remains significant, and cannot be exhausted by the approach I take here. I return later to the figure of Benjamin, specifically to the interesting relationship in which he stands with the figure of Derrida in Agamben’s text. 9. Cf. Agamben, the time that remains. On “suspension” of the law as aufhebung, see 88–112, esp. 99–104.

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(with regard to the notion of the human as speaking being) to the passage from zoē to bios (concerning the conception of the human as political animal). “the living being has logos by taking away and conserving his voice in it, even as it dwells in the polis by letting its bare life be excluded, as an exception, within it” [8]. moreover, the voice of the life that gets covered over by language—and here lan-guage, which corresponds to the juridicopolitical sphere, possesses the status of the let-ter—is that of being itself, as agamben makes explicit, for example, in the book’s con-cluding “threshold.”

the isolation of the sphere of pure being, which constitutes the fundamental ac-tivity of Western metaphysics, is not without analogies with the isolation of bare life in the realm of Western politics. [182]

indeed, agamben goes on to say that “pure being” has its “exact counterpart” [182] in “bare life.” but even this less understated, perhaps somewhat hyperbolic formulation does not suffice to grasp the intimacy of the relation between the two terms, for they constitute rather an identity, as each designates what is beyond all entification, whether theoretico-conceptual or practico-political:

brought to the limit of pure being, metaphysics (thought) passes over into poli-tics (into reality), just as on the threshold of bare life, politics steps beyond itself into theory. [182]

this politico-metaphysical chiasmus of being-Life is what agamben has called at the outset the “protagonist” [8] of his book. accordingly, just as throughout the essays from the early 1980s he situated the metaphysical telos in the overcoming of the letter of rep-resentational discourse for the sake of the saying of the speech of being, so agamben designates the political telos, in the concluding pages of Homo Sacer, as the recovery of bare life:

this biopolitical body that is bare life must itself . . . be transformed into the site for the constitution and installation of a form of life that is wholly exhausted in bare life and a bios that is only its own zoē . . . as essence, in the Heideggerian definition of Dasein, lies (liegt) in its existence. yet how can a bios be only its own zoē, how can a form of life seize hold of the very haplōs that constitutes both the task and the enigma of Western metaphysics? [188]

With this question—which is for agamben by no means a rhetorical one—the philosophi-copolitical intention of Homo Sacer announces itself as the desire to recover the voice of being qua bare life and to provide it with a “form of life” of its own, outside the deaden-ing letter of representational language qua law. Homo Sacer belongs wholly within the philosophical project agamben has sketched out in his earlier writings. if the characterization of the passage from zoē to bios stresses the way in which law excludes its subjects, then the theorization of sovereignty and the homo sacer devel-ops the consequences of the fact that, although it excludes its subjects, law still remains grounded in its other. according to the paradox of sovereignty that the state of exception makes explicit, the law, as a merely formal configuration considered apart from its con-stituting agency, is only able to ground itself on its own suspension. The figure of the sov-ereign as the one who “decides on the state of exception” is one of the privileged figures for the ground of this self-suspensive character of the law. this sovereign, however, is


always split in two: there is, in effect, a “good” suspension of the law, one which grounds law and fulfills it in an origin/end that comprises something “better” than the law, such as the law’s substantial meaning (for example, the führer, whose Word has force of law, or Jesus, who brings us the law’s essence, faith, and grace); and then there is the “bad” suspension of the law, and that which must be made accountable, ideologically and sacri-ficially, for the fact that, insofar as law is suspended, not just meaningful content but also chaos and the end of meaning ensue. Schmitt says, for example, that the state of exception creates an order that must be established prior to the (re)establishment of the constitu-tion because law cannot be applied to chaos (a claim agamben naïvely grants him). but this claim remains problematic insofar as, for example, the dictator’s consciousness and his ultimate lack of control of himself and others in fact always amount to chaos as well as order, as the history of the third reich also proves.10 the chaotic element of the law, its inconsistency, is the flip side of its grounding in something outside itself: whatever grounds the law from without also ungrounds it (and remains ungrounded) in itself. Thus, the sovereign who figures as the ground of the law will always be shadowed by a double, as the one who stands for the ungrounding of the law as such, the material outside of the law that undoes law, makes it violent, turns it away from justice, and so on. this is why it makes sense that in agamben’s account the sovereign is the one who always constitutes—as a kind of negative other or alter ego—the homo sacer, the other one who is construed as simultaneously outside and inside the law, the outside of the law that affects it on the inside, as the letter on which the spirit must depend always affects the latter from outside on the inside. agamben registers this thought concretely when, toward the end of the book, he ranges the Jew in the camps alongside the führer—among others—as different figures of the sovereign/homo sacer double. on the other hand, what may be confusing in agamben’s account is that he sometimes speaks of the exception in terms of the sovereign, sometimes in terms of the homo sacer—because both are ex-cepted from the realm of law, both included by way of exclusion. yet he does not al-ways emphasize with adequate clarity the way in which, as nonetheless emerges from his analysis, both are two sides of the same non–self-grounding character of the law, perhaps even of its “negative ontological foundation.”11 the tendency not to be able to distinguish between sovereign and homo sacer, however, as between the “good” suspender of the law and the “bad” suspender of the law (or as between the unification of its disunity and the

10. in other words, i take exception to Schmitt in political theology (and with Agamben, who quotes him with approval at the outset of homo Sacer), when Schmitt argues that “there is no rule that is applicable to chaos. Order must be established for juridical order to make sense. A regular situation must be created, and sovereign is he who definitively decides if this situation is actually effective” [13]. the fact that no rule is applicable to chaos in itself demonstrates neither that a rule ever has anything other than chaos to apply itself to, nor that the declaration of an ausnahm-ezustand ever “creates and guarantees the situation as a whole in its totality” [13], nor that power or even recognized authority can guarantee order. in Kantian terms, the sovereign would claim in Schmitt and Agamben to function as a kind of “schematism” of the categories of law, except that suspension of the constitution simply suspends the categories and/or applies categories anew to an unschematized chaos. 11. thus, for example, Agamben speaks of the “dimension of bare life that constitutes the im-mediate referent of sovereign violence” [113], but even such a formulation is one-sided. A more explicit formulation of the relation of doubling between the homo sacer and the sovereign is this: “Here the structural analogy between the sovereign exception and sacratio shows its full sense. At the two extreme limits of the order, the sovereign and homo sacer present two symmetrical figures that have the same structure and are correlative: the sovereign is the one with respect to whom all men are potentially homines sacri and homo sacer is the one with respect to whom all men act as sovereigns” [84]. if the homo sacer is at the limit between divine and human law, as is the sover-eign, moreover, this is because both are figures of the splitting of the law into inside and outside.

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disunification of its unity), will always entail that the sovereign (and the ideology and ap-paratuses that support the sovereign) must aggressively pursue and indeed persecute the homo sacer, the sovereign’s negative double, chasing the homo sacer ever more outside the realm of law.12 This is where the sacrificial element, despite Agamben’s claims to the contrary, will enter.

From the Sacrifice of the Law to the Disavowal of Sacrifice

We have thus far seen how the inscription of bare life into the juridicopolitical sphere, in the Homo Sacer project, is at least homologous, if not identical, with agamben’s con-ception of the inscription of voice into writing. in addition, i have sketched how the un-groundedness of law functions for agamben so as to require the truly dangerous, double supplement of a sovereign and a homo sacer, as subject of and subject to the law, respec-tively. agamben’s philosophical orientation asserts itself here in his negative view of law. The resultant structure—this juridicopolitical dimension of sovereignty/homo sacer—is what generates, for agamben, a broad range of phenomena whose common and regret-table character is their radical violence. having reconstructed to this extent the outlines of agamben’s recent concerns in relation to his broader project, the critique of graphocen-tric metaphysics, i will now explain what i take to be the limitations of this model of the juridicopolitical, the distortions entailed by the strange mixture of pauline christianity and fundamental ontology that comprise agamben’s point of departure, his basic philo-sophical orientation. throughout his analysis of the homo sacer (specifically in Part Two of Homo Sacer), agamben is at pains—and in a manner that seems problematic even on the surface of this text—to place this figure under the sole heading of the “political,” or what he sometimes calls—and more tellingly—the “juridico-political,” despite the fact that he places homo sacer precisely between religion and law, the sacred and the profane. having determined the homo sacer with reference to ancient roman sources (especially the second-century grammarian pompeius Festus) as the one who can be killed with impunity but not sacri-ficed, he determines the homo sacer as “outside both human and divine law” [73]. and he goes on to say that “homo sacer may perhaps allow us to shed light on the reciprocal limits of these two juridical realms” [74]. this latter suggestion, however, raises two problems. First, if the two realms reciprocally limit one another, then to be outside one is to be inside the other. this implies that, to the degree that the homo sacer is excluded from the realm of the divine law, s/he is included in that of the human law, and vice versa.13 this, in turn, suggests that the homo sacer (as excluded from both human and divine law, and simultaneously therefore from neither) both can and cannot be sacrificed, both can and cannot be killed with impunity. When the homo sacer is killed, then, this act cannot, in structural fact, be separated from a sacrificial and/or sacrilegious dimension (even if it is in a given instance separated from that dimension explicitly, as in the Festus text with

12. One might restate this structure, in a Lacanian idiom, as the violence of the imaginary relation between ego and other, where ego and other are constituted as the antagonistic twins that uphold (and subvert) the law as symbolic order. 13. In an extraordinarily rich essay, “Sacrifice and the Law,” Bernard Baas situates the sac-rificial object—rereading Hubert and Mauss by way of Lacan—in exactly that sphere between the divine and the human in which Agamben wants to situate the homo sacer: “The sacrificial object is therefore an extimate object: it is what it is only via the divine element which lies within it and which excludes it from the profane order in which it nonetheless remains inscribed” [259].


which agamben begins), nor from the possibility that it is either a murder or an execu-tion.14

Second, agamben’s exclusive understanding of these two realms as purely—and equally—“juridical” is problematic. pushing away the “ethnological notion of taboo” and with it any theory of the sacred that is not strictly juridicopolitical, agamben goes on in this context: “we will try to interpret sacratio as an autonomous figure, and we will ask if this figure may allow us to uncover an originary political structure that is located in a zone prior to the distinction between sacred and profane, religious and juridical” [74]. if, however, the sacratio emerges in a “zone prior to the distinction between sacred and profane, religious and juridical,” then why is it not a religiopolitical or a religiojuridi-cal phenomenon, or a theopolitical or theojuridical one? on what basis does agamben claim that this zone is strictly “political,” or “the originary political structure”? Such a phrasing would require a sharp distinction between the political and the juridical, which agamben does not make, indeed quite the contrary, as his frequent use of the term “ju-ridico-political” makes clear. moreover, the answer to the question of agamben’s basis for his exclusively “political”—or, for that matter, “juridico-political”—understanding of the homo sacer is all the less clear as elsewhere agamben puts the term “political” in quotation marks (as if doubting its literal adequacy) when referring to the relation of the homo sacer, for example in the following passage from his polemic against the thesis on the ambivalence of the sacred:

. . . sacredness is . . . the originary form of the inclusion of bare life in the juridi-cal order, and the syntagm homo sacer names something like the originary “po-litical” relation, which is to say, bare life insofar as it operates in an inclusive exclusion as the referent of the sovereign decision. Life is sacred only insofar as it is taken into the sovereign exception, and to have exchanged a juridico-political phenomenon (homo sacer’s capacity to be killed but not sacrificed) for a genuinely religious phenomenon is the root of the equivocations that have marked studies both of the sacred and of sovereignty in our time. [85]

to be sure, it is reasonable for agamben to object to the transformation of the religioju-ridical or theopolitical phenomenon of the homo sacer into a purely or solely religious phenomenon, especially if religion is being psychologized. it is not reasonable, however, and precisely in terms of his own initial determination of the concept of the homo sacer as situated between sacred and profane, for agamben simply to reverse this reduction, as he does, by turning the homo sacer into a purely political or juridicopolitical phenom-enon.15

14. indeed, at one point Agamben speaks of this “double exception, both from the ius humanum and from the ius divinum” as “a double exclusion and a double capture” [82], but he ignores the consequences of the “double capture” for the relationship between the homo sacer and sacrifice. And again Agamben writes, “Just as the law, in the sovereign exception, applies to the exceptional case in no longer applying and in withdrawing from it, so homo sacer belongs to God in the form of unsacrificability and is included in the community in the form of being able to be killed” [82]. But his latter formulation implies that homo sacer is sacrificable in the form of unsacrificability and is not subject to murder in the form of being subject to murder. yet Agamben goes on to fail to glimpse this implication, reasserting in emphasis in the very next sentence (as if the emphasis could shout down the implication that has emerged in the previous sentence): “Life that cannot be sacrificed and yet may be killed is sacred life” [82]. 15. As when he says, for example, that “it is important . . . that the originary juridico-politi-cal dimension that presents itself in homo sacer not be covered over by a scientific mythologeme [the notion of the ambivalence of the sacred] that not only explains nothing but is itself in need of explanation” [80].

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Further, to make the homo sacer a purely juridicopolitical problem enables agamben ultimately to reach the baleful conclusion, which he inflects (by way of Benjamin) in the direction of a messianic activism, that law has come to replace life. in other words, agamben scapegoats law for the absence that all forms of (re)presentation introduce into presence. if agamben argues that law has come to replace life in the biopolitical regime that realizes the fundamental structure of law as grounded in the supplement of a state of exception (now become the rule), then he is making the violence of law, or even law as violence—and not, as would be more appropriate, the religiopolitical, or the theopoliti-cal—responsible, synecdochically and sacrificially, for the ills of the biopolitical dimen-sion of modernity, from hitler to Karen Quinlan and beyond. never mind the religious (or the messianic) dimension, agamben says—law is responsible (because it exiles the subject from his own community, introducing mediation where immediacy should be, an immediacy that will be restored by the messianism which, as true religion, suspends the law). not only does agamben make of law the homo sacer of a sovereign messianism, but he does so—in “the messiah and the Sovereign: the problem of Law in Walter benja-min” and again in the fourth chapter of Homo Sacer—by staging an authorial scenario in which the mutual doubling of sovereign and homo sacer is enacted through the constella-tion of a double opposition. namely: agamben and benjamin face, as sovereign masters, the homines sacri of Derrida and Scholem. all four vie, but in these two pairs, for the po-sition of subject of the law (or scripture) of the Kafka text “before the Law.” agamben’s very argument for his views on the originary juridicopolitical structure thus illustrates or performs here the structures it lays out, but it performs also an alternative reading of those structures in terms of the mutual entanglement of the sacrificial imaginary and all law, including agamben’s law of the necessary messianic sublation of law. Let me describe this scene before moving on. in order to illustrate the triumph of law over life, as the absorption of life into writing, agamben appropriates Kafka’s trial, and more narrowly its parable “before the Law.” agamben argues that the situation of the man from the country is exactly that of the subject included in the law through exclusion. he proceeds to consider Scholem’s and benjamin’s famous debate over the meaning of this situation; predictably, Scholem’s all-too-Jewish, or “bad”-Jewish (traditionalist), reading loses out to benjamin’s not-too-Jewish, or “good” Jewish (messianic), reading. and also not surprisingly, agamben positions Derrida’s reading as a version of Scholem’s, while he advances his own as a version of benjamin’s. benjamin plays here the role of the al-most-christian Jew, the one who is rigorously opposed to (Jewish) legalism and the one who correspondingly objects to the opacity of the letter.16 the argument goes, in brief, as follows. Scholem understands the trial as speaking of “the nothing of revelation” in the sense of an absolute discourse that “does not sig-nify [bedeutet], yet still affirms itself by the fact that it is in force” [qtd. in Homo Sacer 50]. this Scripture is not lost, for Scholem, but has (merely) become indecipherable. For Agamben, however, the being “in force without significance” of the law characterizes the

16. the gesture is repeated and exacerbated in the time that remains, Agamben’s reading of Paul, where Agamben concludes by arguing that benjamin is a Pauline thinker. At the very end of the time that remains [145], Agamben again plays a Pauline benjamin off against Derrida. but his claims about benjamin are problematic here. While benjamin’s thesis [145] talks about a knowability emerging in a moment that connects past and present, this does not necessarily imply, as Agamben claims it does, that “every work . . . contains a historical index which indicates both its belonging to a determinate epoch, as well as its only coming forth to full legibility at a determinate historical moment” [144]. for example, if it is to concern the messianic dimension, then a “full legibility” in benjamin would be one that could occur not in history but along the edge of its inter-ruption (and so not at “a determinate historical moment”).


“structure of the sovereign ban” [51] perfectly. and in a move that agamben makes his own, benjamin’s response goes further than Scholem’s: “a law that has lost its content ceases to exist and becomes indistinguishable from life” [53]. benjamin, in short, goes beyond Scholem because he recognizes the nothingness of the law. in benjamin:

the state of exception turned into rule signals law’s fulfillment and its becoming indistinguishable from the life over which it ought to rule. Confronted with the imperfect nihilism that would let the Nothing subsist indefinitely in the form of a being in force without significance, Benjamin proposes a messianic nihilism that nullifies even the Nothing and lets no form of law remain in force beyond its own content. [53]

Going beyond Benjamin’s reading, no doubt to fulfill its fulfillment, Agamben suggests that the man from the country may have triumphed over the law by managing to get the door closed, “to interrupt the Law’s being in force” [55]. adapting to his own argument Kurt Weinberg’s suggestion that the man from the country represents a “thwarted chris-tian messiah” [qtd. in Homo Sacer 56], agamben writes:

the suggestion can be taken only if it is not forgotten that the Messiah is the figure in which the great monotheistic religions sought to master the problem of law, and that in Judaism, as in Christianity or Shiite islam, the Messiah’s arrival signifies the fulfillment and the complete consummation of the Law. In monothe-ism, messianism thus constitutes not simply one category of religious experience among others but rather the limit concept of religious experience in general, the point in which religious experience passes beyond itself and calls itself into question insofar as it is law. [56, my emphasis]

on the heels of benjamin, agamben arrives with the good news that Kafka’s parable has a happy ending, and more importantly that religion can now be overcome, that is, fulfill itself, by overcoming all law. enter, or rather exit, Derrida:

The final sense of the legend is thus not, as Derrida writes, that of an “event that succeeds in not happening” (or that happens in not happening . . . un événement qui arrive à ne pas arriver), but rather precisely the opposite: the story tells how something has really happened in seeming not to happen, and the messianic aporias of the man from the country express exactly the difficulties that our age must confront in attempting to master the sovereign ban. [57]

What is here inscribed as the salvific abrogation of law arrives as the taking place of language and the event of being, the ereignis, that agamben places elsewhere as the telos of his thinking. in contrast, in Derrida’s thought something happens (in order) to not happen: the happening and the not happening are mutually implied. even if we read these lines in the context agamben offers, considering the event as what occurs beyond law, we can see that Derrida is suggesting a “simultaneous” freedom from the law and inscription in it, or a limitlessness and limitation that coincide to diverge. this is neither a mere affirmation of a subjection to the opaque letter (as Agamben sees it—assimilating Derrida to a Christian caricature of Judaism), nor the affirmation of the need to overcome all law (Agamben’s project), but an affirmation of a subjection that is always also a lib-eration, a dialectics of the law that is not entirely alien to the thought of the “ban”—ex-clusion/inclusion—but that differently evaluates it. Derrida’s position is less impatient than Agamben’s, then, to find itself definitively “outside” of law, that is, of language or

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(re)presentation in general.17 Finally, let us note that, as agamben’s desire to rid himself of the law necessarily depends on the continuing affirmation of the law (qua alien pole), so evidence is not lacking of overlaps between agamben’s position and its deconstruc-tive/Judaic other. At the end of State of exception, for example, agamben proposes an overcoming of law in terms that are tendentially indistinguishable from those in which he phrases its opposite, law’s insistence on its empty self (that is, the position of Scholem and Derrida), in “the messiah and the Sovereign,” the essay that reappears later as the chapter we have just been discussing, “Form of Law” in Homo Sacer. in State of excep-tion, agamben concludes with the vision of a law detached from life, a “pure” law: “to a word that does not bind, that neither commands nor prohibits anything, but says only itself, would correspond an action as pure means, which shows only itself, without any relation to an end” [88]. yet in “the messiah and the Sovereign” agamben calls the law that is in “force without significance” also “a commandment that commands nothing,” as “a law that has no meaning” [166]. From a “commandmant that commands nothing” to a “word that does not bind, that neither commands nor prohibits anything” the distance is a disappearing one. the scenario of agamben’s polemic against Derrida and Scholem in the name of Benjamin appears thus in a sacrificial light. the constatation of agamben’s tendency to scapegoat law, along with this sketch of the performative dimension in agamben’s positioning of his thought within the tradition of his predecessors and opponents, brings us to the consideration of his hasty rejection of the theories of sacrifice, above all that of Bataille. We have seen that Agamben not only denies (or disavows) the sacrifical dimension of the structure of the homo sacer that his own account makes accessible, but also sacrificially makes the juridicopolitical sphere alone responsible for what is not simply a political problem (but rather a religiopolitical one). it is therefore not surprising that he must take his distance both in general from the anthropological theories of the ambivalence of the sacred, with their keen interest in the significance of sacrificial rituals, and more specifically from Bataille, whose thought, for Agamben, remains trapped within a fascination with sacrifice.18 but while bataille can certainly be accused of susceptibility to being fascinated by sacrifice, one of the great virtues of his work is that it makes it difficult to forget the pervasiveness of sacrificial mechanisms, regardless of whether or not these are sustained by explicitly sacrificial ide-ologies. i will therefore examine critically, for a moment, agamben’s rejection of bataille [cf. hegarty]. the symptomatic and defensive character of agamben’s dismissal of bataille (in the “threshold” between parts two and three of Homo Sacer) becomes apparent when one considers the inadequacy, or at the very least the overconfident hastiness, of Agamben’s characterization. First, agamben includes bataille under the heading of the “psychologi-zation of religious experience” [78] characteristic of theories of the ambivalence of the sacred, but bataille’s own notion of sovereignty is situated in moments of excess where the subject is torn out of its self-enclosure, where psychology becomes irrelevant or im-

17. in “Specters of Nietzsche,” thurschwell expresses [6 ff., 57, passim] reservations i share about Agamben’s eschatological tendencies. 18. Cf. Language and Death, where Agamben still makes the ambivalence thesis his own (“the sacred is necessarily an ambiguous and circular concept” [105]), but sees it as compatible with the thinking of the homo sacer. both there, and in homo Sacer, Agamben does grant a limited validity to the critique of sacrifice, but by the time of homo Sacer, he has come to think that “sacrificial ideologies” are no longer important in our world: “in modernity, the principle of the sacredness of life is thus completely emancipated from sacrificial ideology, and in our culture the meaning of the term ‘sacred’ continues the semantic history of homo sacer and not that of sacrifice (and this is why the demystifications of sacrificial ideology so common today remain insufficient, even though they are correct)” [114].


possible. In addition, these moments of excess in Bataille’s fictional, historical, and theo-retical works are frequently situated in social contexts, beyond the limits of the privacy of a subject. one cannot easily speak here of a depoliticization, even if agamben is right that bataille tries to think sovereignty beyond the nietzschean theme of power, which he regards as nietzsche’s main error. (bataillean sovereignty, moreover, is—and precisely on this point of powerlessness—very similar to agamben’s own vision of an action with-out regard for an end, even if agamben’s reference is to benjamin, at the conclusion of State of exception [88].) Finally, bataille’s conceptualization of the “non-knowledge” of what is not an object—the nothing into which the object of sovereign experience con-stitutively dissolves—is not conceivable within the framework of a psychology or, even more broadly, a subjectivity [bataille, Accursed Share 203, 210–11, 234, passim]. Second, Agamben claims that Bataille sought “the fulfilled figure of sovereignty in life experienced in the extreme dimension of death, eroticism, excess, and the sacred” [112]. But he fails to note that what he calls this “fulfilled figure” occurs in Bataille only under the sign of a disappointment, the interruption of an anticipation by the dissolution of its object into Nothing. Thus, it is the very figure of “fulfillment” that Bataille ques-tions, rather than having merely misidentified what constitutes “fulfillment,” whereas, as we have seen, Agamben remains bound to a (Pauline) discourse of fulfillment. Third, Agamben argues that in proposing “bare life as sovereign figure” Bataille failed to recognize “bare life’s eminently political (or rather biopolitical) nature,” in-scribing “the experience of this life . . . in the sphere of the sacred” [112]. however, it is arguably the case that bataille grasps more clearly the religiopolitical background of sovereignty for which Agamben wants, sacrificially, to make the law solely responsible. agamben must allow no space for bataille because bataille would make it harder for him both to disavow the role of sacrifice in the constitution of the homo sacer and to deny the importance of theories of sacrifice in order—sacrificially—to make the juridicopolitical, or law as displacement of life, responsible for modern (and, for that matter, ancient) bio-politics.

the Holocaust as the Attempt to Make the “Dead Letter” Dead

So agamben denies that the homo sacer in general—as the victim of a juridicopolitical exclusion and entrapment (the “ban”)—is an object of a sacrificial intention, and in con-nection with this move he rejects the nonjuridical and sacrificial theories of the sacred not only in relatively easy, early targets such as robertson Smith, or even Émile Durkheim, but in more complicated recent figures such as Sigmund Freud and Bataille. Concerning the holocaust more particularly, as we can now consider in its argumentative context, agamben goes on to assert (in the transitional paragraphs to part three, “the camp as biopolitical paradigm of the modern”) that the murder of european Jewry—a kind of exemplary collective homo sacer—was not a sacrificial undertaking. In order rhetorically to strengthen the point, he suggests that this “truth,” which is:

difficult for the victims to face, but which we must have the courage not to cover with sacrificial veils [is] that the Jews were exterminated not in a mad and gi-ant holocaust but exactly as Hitler had announced, “as lice,” which is to say, as bare life. [114]

the reader is rhetorically encouraged, so to speak, to agree with agamben here, since no one would like to appear to lack “courage,” or to want to indulge in self-deceit. in ad-dition, i would emphatically agree with agamben that, if the Jews were the object of a

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sacrificial operation, this would not have the sense of an actual punishment by God, nor of an actually sacred event. Such delusional approaches would in fact constitute what agamben calls “an irresponsible historiographical blindness” [114]. however, such po-sitions hardly exhaust the possibilities for considering that the nazis’ attempt to exter-minate the Jews may have possessed a sacrificial dimension. In fact, Agamben’s lack of imagination, or even his credulity, on this theme is itself striking and symptomatic: as if either the Holocaust was a truly sacred sacrifice, or it wasn’t sacrificial at all. But such a perspective is the equivalent of saying: either God exists, or no one believes in God—a patent absurdity. and as i have indicated above, there are two additional—crucial and astonishing—indices of agamben’s limitations here that can easily escape one’s notice because they take the form of omissions: agamben never asks—neither in Homo Sacer nor in remnants of Auschwitz—why specifically the Jews should have become the homo sacer, or even more generally how Nazi ideology is constructed or functions, except in the most nonspecific and abstract terms as a racial ideology and an attempt to control life (that is, as a “biopolitics”). But in what sense do I want to insist on the sacrificial charac-ter of the Holocaust, and how is this related to the figure of law? While it is of course not possible to develop here a thorough demonstration of the sacrificial logic that overdetermined the Holocaust, I will sketch in the logic that I believe was at work. The point of this segment of my argument is not to provide a “final solution” to the question of the sacrificiality of the Holocaust by providing an affirmative answer to this question, but to reopen the question—specifically with respect to the figure of the Jew as letter of law—as against agamben’s attempt to foreclose it by means of a negative answer in Homo Sacer.19 Let us assume for the sake of the current discussion that sacrifice is an offering to a divinity (or to any other absolute), a making-sacred that establishes a passage between the human and the divine.20 Such offerings are sometimes understood as modes of self-puri-fication (or sociologically of purifying the community), sometimes as propitiations and attempts to induce the gods to return favor with favor. in bataille’s reading of hegel—to which agamben refers when he discusses bataille in Homo Sacer, and which we can see as a special case of purification, an absolute purification in self-abandonment—sacrifice appears as the spectacle humans give themselves of the destruction of their own animal

19. Cf. the astute reflections on the Western “spiritualization” of sacrifice and its repetitions of what it spiritualizes in Jean-Luc Nancy’s “The Unsacrificable.” For Nancy, “Bataille tends to consider the Jews [under the Nazis] as victims of a sacrificial immolation of reason” [31], which is closely related to the view i am developing here. As Nancy points out, Philippe Lacoue-Labarthe denies that the Holocaust is sacrificial, but mainly in order not to sacralize it, and he ends up on a note of uncertainty: “but, to reconsider the question, i ask myself in fact if, on an entirely different level, which would oblige us at least to reelaborate the anthropological notion of sacrifice, one should not speak of sacrifice. This is, finally, the admission of a pure and simple undertainty [em-barras]” [Lacoue-Labarthe 81, my translation]. For Lacan’s view of the Holocaust as sacrificial in character, see Lacan, Séminaire Xi 246–48, and baas. 20. it has been argued by Marcel Detienne [Detienne and Vernant 13–14] that this concept of sacrifice, which follows Hubert and Mauss, is reductive in its emphasis on the polarity of sacred and profane and its relative inattention to concerns of “participation in a social group or politi-cal community” [14]. The approach of Detienne and Vernant, attending to the place of sacrifice “within a network of socio-religious actions, practices, and symbolisms” [13] is fortunately much broader than the concern of Agamben with the originary juridicopolitical structure. in what fol-lows, the instance of the sacred is also that of the political, since the Aryan race is a theopolitical instance, Nazism a political religion of race arising out of the “Aryan Christianity” movement of the nineteenth century.


nature, which is at the same time the proof and enactment of their superiority to utility, of their ideality as a force of negativity, indeed of their sovereignty.21 in the case of the national Socialists, who, as is well known, formed not just a party but a quasi-cultic group, the divinities to whom a sacrifice would be offered cannot per-haps easily be identified with precision (although a certain Wagnerian mythology is never far off). But it is beyond question that the absolute to which sacrifices could—and indeed, within the logic of German fascism, had to—be delivered up was the absolute of the aryan race itself, as a divinized nature, embodied in the trinitarian unity of “ein Volk, ein reich, ein Führer.” the physicospiritual unity of the aryan race was conceived, more-over, in ontotheological terms as a spiritual being/Being that was indistinguishably also a becoming—hence the emphatic and almost mystical language of “the movement” (die bewegung). in this becoming-being of the aryan race, immediacy had (to have) been purged of all mediation, identity cleansed of all difference, and totality unlinked from infinity. While this unity of the Aryan race was not closely tied to any traditional Christian denominations, because it posed predominantly as pagan, neither was it entirely cut off, as we know, from its christian roots. nazi rhetoric invoked the conceptual vocabulary of traditional anti-Semitism, the stereotypes of preracist, pre–nineteenth-century, mostly religious anti-Semitism, in a new racialized form forged during the later nineteenth cen-tury. the central term in the construction of these stereotypes, however, is the pauline, typological construction of the Jew as prefigurative, dead letter of the law. As associated with the dead letter of the law, the Jew stands for the materiality of language and all that is associated with its disruptive force—deferral of pure presence, undoing of voice, preven-tion of immediacy by mediation, replacement of nature by artifice, strewing of home into exile, killing of faithful life by doubtful death, commercial rather than agrarian interests, and so on. in the light of these basic aspects of nazi ideology, when millions of Jews are mur-dered by the Nazis, one must understand this as a scapegoating sacrifice of the dead letter (or the law) of the antinatural race to the living voice and immediacy of the race of races, the naturally supernatural as such. the aryan race thus tries to purify itself of all me-diation and re-presentation in favor of immediacy and pure presence. nazi anti-Semites destroy the Jews for the sake of the Leader, but the Leader is a transcendent version of themselves—of the people, race, and state without any significant internal differentia-tion whatsoever: all henceforth “sacred.” nazi racial laws, for example—and this is an important point i have never seen noted—are laws that try to purify the empire of law by legislating against the (Jews as the principle of) law itself. the racial laws outlaw law, as it were: hence their marked tendency to become more and more vicious and extreme in a rapid acceleration.22 the isolation of the Jews and their exclusion from German society

21. My most proximate points of reference here are Hubert and Mauss, despite their oversim-plifications and historical limitations; Benveniste [179–208, 223–32], who is still closely related to the perspective of Hubert and Mauss; Bataille, “Hegel, Death, and Sacrifice”; and Detienne and Vernant. in the introductory essay, Detienne argues at length—against the anthropological and sociological tradition from robertson Smith through Durkheim, Hubert, and Mauss—that they read sacrifice in “primitive” religions teleologically (and we might add, typologically) in that they see sacrifice outside Christianity as culminating in the self-sacrifice of the God, the Eucharist, and so on. Agamben rejects this tradition but nonetheless does not distance himself from the positive religious tradition of Christian thought. 22. for a usefully condensed summary of these laws, which makes clear the relentless course of radicalization from exclusion to expropriation to annihilation, but without ever drawing the con-clusion that law is legislating here against law, see benz. the contradictory position of Schmitt as “Kronjurist” of an empire devoted to the destruction of lawyers in general becomes clearer when viewed in this light.

Drawing of bicycle for Pozzo (2007)


must be followed by their complete expropriation to demonstrate that the letter of the law is the realm of the absolutely im-proper, of that which has neither property nor properties nor propriety nor any self whatsoever. ultimately, extermination arises out of this logic as the demonstration of the deadness, materiality, and (pre)figurality of the law—a law of mediating representation—embodied by the Jewish “race.” Further, when the persecution of the Jews develops in the direction of a set of policies and practices that are designed to force the Jews to participate in their own destruction, this is not only sadistically perverse and cynically efficient to the point of being radically inhuman. It is also unavoidably readable on a “symbolic” (theopolitical) level as the attempt to make the self-effacing signifier efface itself in fact, so that the pure spirituality of the German signified should be the only thing that remains, the German thing as the thing itself. Bataille’s more narrowly specific approach to sacrifice, in the form it takes in “Hegel, Death, and Sacrifice,” sheds further light on the relationship between sacrifice “in gen-eral” and the Nazis’ sacrificial purging of the Jews as figures of the dead letter of law. For Bataille (by way of Hegel), “in sacrifice, death, essentially, strikes the corporeal being; and on the other hand, it is precisely in sacrifice that ‘death lives a human life’” [18]. That is, sacrificiality negates the animal sphere, providing the human with a spectacle of its own death, in order to imagine itself to “live” beyond its own natural death, as in fact it does, in a specific (and limited) sense, that is, through representation, in the sphere of the “properly” human. In this spectacle, “the sacrificer identifies himself with the animal that is struck down dead” [19]. one cannot imagine, of course, that the SS guards in death camps identified consciously with their victims (although they did their all to force the victims to become complicitous in their own destruction and so to resemble their op-pressors). at the same time, it is clear that the German “master-race” does, in important regards, and in the wake of the Christian “fulfillment” of Judaism, both pattern itself upon, and openly and intensely envy and resent, the Jewish “chosen people” whom this “master-race” means to replace.23 the Sovereign, as i indicated above, can never easily separate itself from the homo sacer it sacrificially persecutes. but in the case of the nazis’ attempt to annihilate the Jews, the bataillean logic of sacrifice can be seen to be complicated, reversed and yet repeated, in one further twist. If the Jews already represent, within both christianity and national Socialism (although dif-ferently in each case), the sacrifice of animality and the ghostly coming-to-life of death, then the Nazis’ sacrifice of the Jews is a doubling and reversal of sacrifice: the animality of the human is to be restored by sacrificing its humanity, in the sense of its artificiality. the law must be destroyed in order for the bare life of the aryan race to be restored. but the Jews of europe still die as representatives of the corporeality of the Germans, where corporeality means the inevitability of death, or finitude: the destruction of the Jews is to be the destruction of death, of the dead letter, so that life—the aryan race—can live, keep faith with itself in its wholeness, and so on. In this sense, the Nazis’ sacrificially structured genocidal murder of the Jews repeats, and does not simply reverse, the logic of sacrifice “in general.” Such a sacrifice, of course, would not be understood by Bataille as a sovereign one. For it is servile: it is carried out in service to the shoring-up of (aryan) identity, self-maintenance, that is, the principle of accumulation rather than excessive expenditure. the unspeakable grotesqueness and horror of the accumulation of victims’ hair, gold, and so on, in the camps attests to this, as does already the mere principle of “useful” slave labor that doubles as mass murder and torture. nonetheless—and all the more so as bataille

23. in this sense, the bible is for the Nazis, too, still a revelation that is in “force without significance” [homo Sacer 49–62] in that although they deny it they still operate in many ways as if they believe in it—as has the West much more generally for the past two hundred years since secularization set in.

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does not claim to envision a purely sovereign sacrifice [28]—the structure of the Nazis’ attempt to destroy the Jews appears sacrificial in character, as soon as one analyzes it from the standpoint of the Christian animosity toward the Jewish “law” that the Nazis inherited and transformed.

Agamben’s Theodicy of Holocaust Testimony

Against the background of this sacrificial relationship of National Socialism with the Jews as figure of law (and law of figurality), Agamben’s approach to Holocaust testimony appears strikingly blind to the commonalities (notwithstanding, but also granting, the profoundly significant differences) between its own antinomianism and the Nazis’ hostil-ity to the principle of law. This blindness allows Agamben to construct, without appar-ently meaning to, a theodicy of Holocaust testimony. Let me sketch, in closing, the main traits of his approach, on which I base this reading. First, Agamben opens Remnants of Auschwitz by polemicizing against all treatments of the Holocaust and its testimonies that in any way base themselves on the principle of law [18, 20, 22, 24, passim]. Law represents here explicitly nothing less than a danger of “contamination.”24 For example, “almost all the categories we use in moral and religious judgments are in some way contaminated by law: guilt, responsibility, innocence, judg-ment, pardon . . .” [18]. And:

if the essence of the law—of every law—is the trial [Agamben is alluding here to Kafka’s Trial, an important point of reference also in Homo Sacer], if all right (and morality that is contaminated by it) is only tribunal right, then execution and transgression, innocence and guilt, obedience and disobedience all become indistinct and lose their importance. [19]

For a final, striking illustration: “it is possible that the trials . . . are responsible for the conceptual confusion that, for decades, has made it impossible to think through Auschwitz” [19]. With this judgment, even if it is rhetorically marked as merely “pos-sible,” Agamben declares law guilty of preventing the thought and understanding of the Holocaust, thus excluding law by invoking law (and guilt and responsibility) against law itself, as Nazi Germany also did, if in a drastically different form. Further, the rejection of any possible approach to Holocaust testimony that entertains any relationship other than entirely negative with a thought of the law culminates, in the opening chapter of Remnants, in a brief polemic against any construal of testimony in terms of the letter.

To bear witness, it is therefore not enough to bring language to its own non-sense, to the pure undecidability of letters. . . . It is necessary that this senseless sound be, in turn, the voice of something or someone that, for entirely other reasons, cannot bear witness. [39]25

24. Cf. State of Exception: “Politics has suffered a lasting eclipse because it has been con-taminated by law” [88]. 25. The context here is Agamben’s discussion of Levi’s report about a boy in the camps who never learned language and whose inarticulate sounds Levi recounts as sequences of senseless let-ters. The specifics of the context are less significant here, however, than the way in which Agamben makes them an occasion to speak against the letter, in favor of the voice.


how, then, does agamben position “testimony,” despite a number of gestures of dis-avowal, as the voice of an impossibility of witness, beyond all law and letter? agamben’s theory of holocaust testimony takes as its point of departure primo Levi’s position that the survivor’s testimony has to try to speak on behalf of the Muselmann, the camp prisoner who has succumbed to the annihilating force of the camp’s negativity and become essentially incapable of speech, drifting in the silence of an inner death toward the inevitable and impending extinguishment of the flickering embers of life. In accord with his enduring philosophical desire—to give voice to the taking place of language as such, which cannot be spoken of or about (that is, by speech relative to an object), but can only be spoken absolutely, agamben tries to tease out of Levi’s account of testimony on behalf of the Muselmann the fulfilled figure of such a speech of (the impossibility of) speech itself.

. . . the phrases, “i bear witness for the muselmann” and “the muselmann is the whole witness” are not constative judgments, illocutive acts, or enunciations in foucault’s sense. rather, they articulate a possibility of speech solely through an impossibility and, in this way, mark the taking-place of a language as the event of a subjectivity. [164]

But Agamben is not content to define Holocaust testimony as a genuine “event of a sub-jectivity” qua “taking-place of a language.” Such testimony becomes, in his discourse, the exemplary modality of the realization of such subjectivity. that is, subjectivity as such becomes testimonial in this sense. in other words, given Levi’s construction of wit-ness, and given that, in order to speak, we must assume the structure of a language that turns the “I” into a grammatical function and fiction, and that our speech hence arises out of its own impossibility, “subjectivity appears as witness” [146 and cf. 129]. but holocaust witness is not exhausted by its status as the exemplary instance of subjectivity (as if this were not already enough). it is also a privileged model of both au-thority and poetry. as agamben argues by reference to the (ancient and therefore appar-ently original and authoritative) Latin word auctor, the act of the author is that “in which an insufficiency or incapacity is completed or made valid” [150]. The author realizes a sort of prefiguration, speaks the silence of an intention to speak. Thus, Agamben asserts that “the dual structure of testimony [is that of] an act of an auctor, as the difference and completion of an impossibility and possibility of speaking, of the inhuman and the human, a living being and a speaking being” [151]. Further, the witness as subject and author is specifically a poet.26 poetic speech bears witness to “the language in which the author succeeds in bearing witness to his incapacity to speak” [161–62]. but what are we to make of this radical philosophical interpretation of testimony on behalf of the Musel-mann? i will close with two remarks in response to this question. in the universalizing movement by means of which agamben transforms holocaust testimony into an exemplary realization of the structure of the subject, as poetic author, the specific silence of the Muselmann and his or her specific and extreme suffering, as well as the specific and self-acknowledged inadequacy of the survivor’s testimony, have been effaced. in their place stand the general incapacity of representation or propositional language to say “the thing itself” (or the taking-place of language as such) and the claim that this incapacity overcomes itself in its avowal and reconsideration by the survivor. in turn, the effacement enables agamben to discover not only a valuable result of the holocaust in testimony upon its occurrence, but a kind of absolute good: the revelation of poetic speech as an adequate manifestation of the absolute—the taking-place of language

26. erik Vogt has examined this critically and insightfully in “S/Citing the Camp,” esp. 94–100.

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as Being of the Word of God. In fact, evil conduces in the end to good, then, the good of a certain overcoming of graphocentric metaphysics, that is, of the domination of Western metaphysics by the contagious dead letter of the law. And Agamben says as much, even if he disavows, as best he can, the traditional metaphysical character of his gesture.

. . . metaphysics and Western reflection on language . . . have . . . sought to articulate the relationship between the living being and the speaking being. . . . [T]his articulation has been generally sought in the site of an “I” or a Voice. . . . And yet in the final analysis this Voice is always a mythologeme or a theologoumenon. . . . Outside theology and the incarnation of the Verb, there is no moment in which language is inscribed in the living voice. . . . It is in this non-place of articulation that deconstruction inscribes its “trace” and its dif-férance, in which voice and letter, meaning and presence are infinitely differed. . . . But precisely this impossibility of conjoining the living being and language, phonē and logos, the inhuman and the human—far from authorizing the infinite deferral of signification—is what allows for testimony. If there is no articulation between the living being and language, if the “I” stands suspended in this dis-junction, then there can be testimony. . . . Testimony takes place in the non-place of articulation. In the non-place of the Voice stands not writing, but the witness. . . . [130]

The witness, then, replaces or supplements the absence (or simply the spatial nonsituat-edness) of the Voice with something other than deferral of presence—with the subject who is a poetic authority and who, beyond any telos [159], “fulfills time” [159]. Thus, for Agamben, in Holocaust testimony, as a consequence of the ostensibly nonsacrificial murder of European Jewry, a certain grace will have arrived.

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________. “Specters of Nietzsche: Potential Futures for the Concept of the Political in Ag-amben and Derrida.” Available online at www.law.csuohio.edu/faculty/thurschwell/ nietzsche.pdf, and in abbreviated form in Cardozo Law Review 24 (2003): 1193–259.

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giorgio agamben’s fulfillment of metaphysics

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