Sovereignt y and Its Other 153-53311_ch00_2P.indd 1 3/22/13 7:51 PM  Fordham University Press New York 2013 Commonalities Timothy C. Campbell, series editor 153-53311_ch00_2P.indd 2 3/22/13 7:51 PM  S ov e r e i g n t y and Its Other Toward the Dejustification of Violence Dimitris Vardoulakis 153-53311_ch00_2P.indd 3 3/22/13 7:51 PM  Copyright © 2013 Fordham University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—­electronic, mechanical, photocopy, recording, or any other—­ except for brief quotations in printed reviews, without the prior per- mission of the publisher. Fordham University Press has no responsibility for the per­sis­tence or accuracy of URLs for external or third-­party Internet websites referred to in this publication and does not guarantee that any con- tent on such websites is, or will remain, accurate or appropriate. 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Library of Congress Cataloging-in-Publication Data Vardoulakis, Dimitris.   Sovereignty and its other : toward the dejustification of violence / Dimitris Vardoulakis.    pages ; cm. — (Commonalities)   Includes bibliographical references and index.   ISBN 978-0-8232-5135-3 (cloth : alk. paper) —   ISBN 978-0-8232-5136-0 (pbk. : alk. paper)  1. Sovereignty.  I. Title.   JC327.V36 2013  320.1'5—dc23 2012049119 Printed in the United States of America 15 ​14 ​13 ​5 ​4 ​3 ​2 ​1 First edition 153-53311_ch00_2P.indd 4 3/22/13 7:51 PM  Contents Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Preamble, or Power and Its Relations . . . . . . . . . . . . . . . . . 1 1 Judgment and Justification . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Justification or Judgment?, 13  ■  Sovereign Discomfort: The Immediacy of Justification, 18  ■  Dejustification, or the Historicization of the Trinity of Justification, 23  ■  Demo­cratic Judgment, or the Exigency of Participation, 29  ■  An Other Narrative: On Method, 36 2 The Vicissitude of Participation: On Ancient Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 War and the State: On the Foundation and Perpetuation of the Polis in Thucydides, 41  ■  Self-­sufficiency: Pericles’s “Funeral Oration”, 46  ■  “Invincible Eros” in Sophocles’s Antigone: For the Love of Democracy, 52  ■ Universal Agape in Christian Sovereignty: Augustine’s City of God, 69 3 The Propinquity of Nature: Absolute Sovereignty . . . . . . . 77 The Subject of Psychology and the Law: Machiavelli and Bodin, 78  ■  Fear Thy Neighbor as Thyself: Hobbes’s Artificialities, 84  ■  There Must Be Madmen. . . . ​The Absoluteness of the Sovereign in the Leviathan, 93  ■  Melancholia as Dejustification: Hamlet’s Anti-­absolutism, 99 153-53311_ch00_2P.indd 7 3/22/13 7:51 PM  4 Revolution and the Power of Living: Pop­u­lar Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 “The Sovereign Is Always What It Should Be”: Rousseau’s Perpetual Revolution, 111  ■  The Other of Obedience: Spinoza’s Dejustification of Sovereignty, 122  ■  The Regime of Broken Promises: The Possibility of Democracy, 130  ■  The Paroxysm of the Aleatory: Kleist’s Michael Kohlhaas, 140 5 Democracy and Its Other: Biopo­liti­cal Sovereignty. . . . . . 153 Normalizing the Exception, 153  ■  The Unsavables: Marx’s Wager, 161  ■  Acts of Democracy: The Primacy of the Effect in Foucault’s Theory of Power, 175  ■  The Unexceptional: Coetzee’s Michael K. and Re­sis­tance, 188 Epilogue: A Relational Ontology of the Po­liti­cal. . . . . . . . 200 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 viii Contents 153-53311_ch00_2P.indd 8 3/22/13 7:51 PM  Sovereignt y and Its Other 153-53311_ch00_2P.indd 13 3/22/13 7:51 PM 153-53311_ch00_2P.indd 14 3/22/13 7:51 PM  Preamble, or Power a n d I t s R e l at i o n s The present examination of sovereignty rests on the axiom that the opera- tion of sovereign power consists in the justification of violence. Justifica- tion is determined—­for reasons that will become clear later—­in terms of a means-­and-­ends relation.1 Thus the question that structures the present study entails that both a descriptive and a normative extrapolation of sov- ereignty are outside its purview. Rather, the examination of sovereignty proceeds through the construction of a relational ontology of power that interrogates the way that means relate to the ends of power. The thesis I defend is that there are two distinct forms of relation.2 The first, sover- eignty, consists in different modalities of the justification of violence. The second is a kind of relation that is incommensurable with a means-­and-­ ends relation and hence cannot be reduced to justification. This relation is democracy, the other of sovereignty. An important reason for examining sovereignty through such a relational ontology of power is that such an approach mediates on an ambiguity that seems to suggest that there are two incompatible ways of propounding a theory of sovereignty. The first concentrates on the epochal differences that structure power, whereas the second endeavors to derive a logic of power without a reliance on chronological ruptures. A rapprochement between these two different approaches is requisite to delineate sovereignty’s relation to its other—­namely, democracy. Or, more emphatically, a relational ontology of sovereign power incorporates both a typology of sovereign power—­ distinctions can be drawn as to how the means-­and-­ends relation of justi- fication operates—­and a logic of sovereignty that distinguishes it from 153-53311_ch01_2P.indd 1 3/22/13 7:51 PM  democracy. I will present some of the salient features of the relational ontol- ogy of power by starting with the distinction between the two approaches to sovereignty. This will lead us to show how justification can be understood as a means-­and-­end relation, as well as to how sovereignty is distinguished from democracy. The most prominent phi­los­o­pher to have adopted the first, epochal ap- proach to sovereignty is Michel Foucault.3 His archaeologies of sovereignty rely on separating classical power from disciplinary power and then from biopower and so on.4 This approach also permeates the vast majority of the literature on sovereignty from po­liti­cal science and international rela- tions.5 This is not to discount the significant diversity of views in the ­approach that concentrates on different epochal determinations of power. For instance, one of the most commonly held views in this approach is that sovereignty is a modern configuration of power whose main principle is the separation of national from international politics—­or internal from external power.6 The corollary to this view is that sovereignty is power ex- ercised by the state.7 This view is almost axiomatic in international relations, but it is not shared by Foucault. So what I have referred to as the “epochal” approach does include a wide variety of often competing perspectives. Jacques Derrida and Giorgio Agamben have been the most prominent proponents in the past couple of de­cades of the approach that seeks to identify a logic of sovereignty. In Rogues Derrida identifies “ipseity,” or the self-­referentiality of one power, as the main characteristic of sovereignty.8 In the lectures published as The Beast and the Sovereign, the figure of ani- mality is identified as the other that animates sovereignty’s power.9 Agam- ben observes that Roman law defined subjectivity in relation to sovereignty as “homo sacer,” or the division of the individual into a po­liti­cal and a bio- logical part. He contends that this same division applies diachronically, from Aristotle’s separation of bios and zoe to the contemporary biopo­liti­cal world.10 The provenance of these attempts to discover a logic of power may not be strictly speaking Friedrich Nietz­sche, but Nietz­sche’s work has been instrumental in propagating this approach. One crucial feature of this ap- proach is that power—­and hence sovereignty—­are not confined to the state.11 Rather, as Georges Bataille showed in his influential The Accursed Share, power is a matter of “economy,” or the sets of relations that permeate community and sociality.12 2  Preamble, or Power and Its Relations 153-53311_ch01_2P.indd 2 3/22/13 7:51 PM  There have been some attempts at a rapprochement of these two ap- proaches to sovereign power.13 The most important is Michael Hardt and Antonio Negri’s Empire.14 Hardt and Negri both develop a historical typo­ logy of sovereignty and argue that the different forms of sovereign power rely on a single logic—­namely, repression of the creative forces in society or the “multitude.” The crucial common denominator of their typology and their logic of sovereignty is the distinction between constituent and consti- tuted power.15 They offer illuminating insights based on this distinction, but ultimately their logic requires constituent power to overcome con­ stituted power. The “multitude” is expected to rise above, take over, and thereby abolish government—­in Hardt and Negri’s words, “the multitude banishes sovereignty from politics.”16 This proffers a vision of an occlusion to power. I criticize elsewhere such a utopian conclusion.17 Suffice it to say that I seek to avoid such an occlusion of power in the present book. To do so it is necessary to construct a logic of sovereign power that, unlike Hardt and Negri, does not depart from the opposition between constituted and constituent power. The rapprochement that I am proposing h ­ ere develops a logic of power that derives from an insight at the beginning of Walter Benjamin’s “Cri- tique of Power.”18 Benjamin notes that power, or violence (Gewalt), can best be described through the way that the law relates to justice or, in other words, in terms of how violence is justified.19 He further describes the rela- tion of law and justice as a means-­and-­end relation: “If justice is the crite- rion of ends, legality is that of means.”20 Investigating sovereignty in terms of justification in general or the justification of violence in par­tic­u ­lar is nothing new.21 And even though it is less recognized, articulating legality and justice as a means-­and-­ends relation is not particularly novel, either—­ for instance, we will see later that Spinoza, a crucial figure for this book, had arrived at a similar conception.22 The novelty in Benjamin’s argument consists rather in combining these two insights in order to draw distinc- tions about how power operates—­moreover, distinctions that allow for a typology of power. Specifically, the central characteristic of modern con- ceptions of power is the privileging of means over the ends: “the central place [in this study] is given to the question of the justification of certain means that constitute violence,” writes Benjamin in order to delimit his article to the study of power or violence in modernity.23 Thus Benjamin Preamble, or Power and Its Relations  3 153-53311_ch01_2P.indd 3 3/22/13 7:51 PM  implicitly asserts that the privileging of legality—­or what he refers to as “positive law”—­is the essential characteristic of modern power. Benjamin’s articulation of the justification of violence through the use of a means-(law) and-­ends ( justice) relation can be expanded to provide a typology of power based on the ways in which such a means-­and-­ends relation is articulated. If the relation of means toward ends is the defin- ing feature of modern power, then there can be two further modalities of power. In par­tic­u­lar, there can be a power where the end justifies the means—­that is, the reverse of the modern conception of power. I will argue ­here that this relation characterizes ancient sovereignty. Further, there can be a power that is characterized by a perceived lack of ends, or more pre- cisely, by a justification of means with reference to further means. The present book refers to this kind of power as biopolitics. Schematically, the typology of relations of power that I derive from Benjamin’s essay will un- fold as follows:24 In Chapter 2 I argue that ancient sovereignty privileges the end over the means. For instance, Augustine argues in The City of God that the aim of mankind is to enter the “city of God.” The “pagans,” however, hinder the “pilgrims” from achieving this just end. Therefore, Augustine argues, vio- lence is justified against the pagans. In other words, the end (entry into the “city of God”) justifies laws and institutions that function as the means to that end, including the exercise of violence against those who are opposed to that end. The end justifies the means. Chapters 3 and 4 will show that modern sovereignty reverses the relation between means and end. When Machiavelli writes in Chapter XIIX of The Prince that a prince observing moral rules may be honorable, but will thereby lose power, he is not simply granting license for the exercise of un- limited violence. Rather, he provides a different justification of power—­ namely, that the sovereign must use the laws and institutions of the state to remain in power. The means (law and institutions) justify the end (the just aim of the perpetuation of sovereignty). In other words, it is just for the state to desire its self-­perpetuation because the means justify the end.25 Biopo­liti­cal sovereignty was a term coined by Foucault in Society Must Be Defended to describe, as I will outline in Chapter 5, the exercise of power through the control of populations. Biopolitics justifies itself in terms of the betterment of the lives of the people. With biopolitics issues such as the control of sexuality become central to the operations of power, as Foucault’s 4  Preamble, or Power and Its Relations 153-53311_ch01_2P.indd 4 3/22/13 7:51 PM  unfinished project on the history of sexuality makes clear. Biopolitics blurs the distinction between means and ends. For instance, sexuality is not regulated primarily by creating new laws, but through campaigns that aim to change how people think and act. Biopolitics describes a dispersed sov- ereign power that blurs the distinction between means and ends. Understanding sovereign power in terms of the justification of violence, where justification is explicated in terms of a means-­and-­ends relation, enables a rapprochement of the two approaches to sovereignty. The logic of sovereignty is one of justification, whereas its typology is given by the dif- ferential relation between means and ends. The corollary to this rapproche- ment is that the three modalities of justification—­ancient, modern, and biopolitical—­can be distinguished, but not separated. Ultimately, as it will be argued throughout the book, this means that the three modalities of justification do not exclude one another, but rather are mutually supportive. This is a crucial point, since it makes possible a thinking of power without being based on a logic of justification—­indeed, as I will argue shortly, the possibility of demo­cratic judgment depends on recognizing that the differ- ent modalities of justification are distinct, yet inseparable. We can represent the mutual support of the three modalities of sover- eign justification in the form of a triangle—­or the “trinity of justification,” as it will be called in Chapter 1. Each corner of the triangle indicates the privileged point of each form of justification (see figure on p. 6). The differ- ent forms of sovereignty indicate the direction in which justification pro- ceeds. Thus ancient justification proceeds from end to means, whereas modern justification moves from means to end. A central thesis of the present study is that justification as such includes all three points of the triangle. The three modalities of justification—­ancient, modern, and biopolitical—­a re mutually supportive. Or, more emphatically, the three justifications are cosupponible. I will use the concept of the “neighbor” to illustrate in rough brush- strokes the cosupponibility of the three modalities of justification. As I will argue in Chapter 2, ancient sovereignty culminates in the universalism propagated by Christianity. One of the crucial figures in this context is Paul. His injunction to “love thy neighbor” is not merely a law, but rather the justice that underlies any sense of legality. As Freud observes in Civili- zation and Its Discontents, such a sense of neighborly love functions as a justification of violence.26 Violence is inevitable, since Paul’s logic relies on Preamble, or Power and Its Relations  5 153-53311_ch01_2P.indd 5 3/22/13 7:51 PM  Means End (modern) (ancient) Means and End (biopolitical) a dichotomy between “us” who love and “them” who do not: “They which are the children of the flesh, these [are] not the children of God” (Romans 9:8). If neighborly love creates a community under God, those who have earthly desires are excluded from that community. It is a small step from ­here to more systematic elaborations of just war—­it is simply a matter of developing a system that defines what the “flesh” is. Notions of nationalism can be understood as the transfiguration of the Christian neighborly love into the modern justification of violence. Modern sovereignty can privi- lege the realm of means or legality because of the insistence on the in­de­pen­ dence of a state from other states or of the separation between one state’s system of laws and another system of laws in modernity. The universalism of neighborly love is now constrained within the borders of a nation state. Thus the fellow citizens who share the same ethnic and/ or religious iden- tity now become the territorially determined neighbors, and their other is now the foreigner. With the advent of “postmodernity” and high capital- ism, territorial integrity is undermined. From the perspective of biopower, ethnic and/or religious identity is no longer the essential criterion that determines one’s neighbor. Rather, now the criteria are being constructed through the control of populations—­or what Hardt and Negri call a “right to police.”27 From health to housing to work, conduct is regulated, and whoever deviates from the justified norm is no longer a neighbor. The figure of the “smoker” can be taken as an example of biopo­liti­cal control of conduct. Smoking is regulated on the grounds that it is harmful to per- sonal and public health. The ban on smoking extends across public spaces, across territorial borders—­no smoking is allowed on airplanes—­a nd even 6  Preamble, or Power and Its Relations 153-53311_ch01_2P.indd 6 3/22/13 7:51 PM  to private places—­for instance, the state of Tasmania in Australia re- cently prohibited smoking in the presence of minors, even in one’s private home.28 A number of inferences can be drawn from the different configurations of the neighbor according to ancient, modern, and biopo­liti­cal forms of justification. First, violence is justified by identifying someone who is not a neighbor—­someone who is other. Differently put, there is a logic of sover- eignty that relies on the justification of violence. Second, the other can be determined in different ways. The logic of sovereignty can be expressed in three different modalities. Third, the three different modalities of the justi- fication of violence are distinct, but they do not preclude each other. Paul’s “children of the flesh,” the “foreigner” of the nationalist discourse, and the “smoker” of biopower have a family resemblance, which is not merely a lapse into identity politics.29 Rather, it moves toward a relational ontology of sovereignty according to which one modality of justification does not preclude either of the other two modalities. The “smoker” can be castigated not simply on health grounds. Smoking can also be constructed as a marker of identity—­it is “these foreigners” who smoke more than “us.” Or smoking can be linked to immoral behavior—­to the sin of lusting after earthly plea- sures or the sin of harming (not loving) others. The mutual support of the three forms of justification as a result of as- serting both a typology of sovereign power and a logic internal to it is ­indispensable in recognizing the other of sovereignty. To say simply that the sovereignty’s other is he or she against whom violence is justified is not really to say very much. The cosupponibility of the different modalities of justification entails that potentially—­if not de facto—­everyone can be po- sitioned as the other. The multifarious forms of justification can be applied to every situation. Sovereignty is omnipresent because being a subject means being subjectable to violence.30 Consequently, a form of relating that does not privilege justification—­t he other to sovereignty—­cannot be sought simply in the other that sovereignty subjects, precisely because everyone is sub- jectable. Instead, the other of sovereignty has to be sought in how its logic is disrupted by altering its defining relation—­t hat is, justification. It is this disruption of justification that is called ­here judgment, which is a different kind of relation, as I will argue in Chapter 1. In addition, judgment is under- stood as the defining feature of democracy. In this sense, democracy is the other of sovereignty. Preamble, or Power and Its Relations  7 153-53311_ch01_2P.indd 7 3/22/13 7:51 PM  Without a recognition of the cosupponibility of the different modalities of justification—­ or a recognition that sovereignty can assume three forms—­judgment cannot counter justification. I will illustrate this point with a specific example: namely, the Australian government’s justification of violent actions against refugees as it was expressed at the height of the debate in the lead-­up to the 2001 general elections. The anti-­refugee stance of the incumbent Liberal government was encapsulated in Prime Minister John Howard’s statement, made for the first time on October 28, 2001: “We will decide who comes to this country and the circumstances in which they come.”31 This statement summarized the government’s attitude to asylum seekers arriving by boat and was regularly repeated during the rest of How- ard’s tenure as prime minister. By adjusting the emphasis this statement can be used to justify the government’s violence against asylum seekers in accordance with the three modalities of justification that correspond to the three forms of sovereignty—­ancient, modern, and biopo­liti­cal. As I will demonstrate, each modality of justification can be countered individually, but sovereignty can still slip from one form to another. To interrupt justifi- cation and to arrive at the possibility of judgment, the logic of justification as such must be countered. The most obvious meaning of the statement “we will decide who comes to this country and the circumstances in which they come” is the assertion of territorial sovereignty. A sovereign nation must retain control of its bor- ders. This corresponds to the modern justification of violence—­t hose who enter illegally are subject to punishment. Hence the government called the refugees “illegal immigrants.” The main argument to counter this form of justification relies on human rights. According to the Geneva Convention, a refugee is a person who is subject to prosecution on po­liti­cal or religious grounds in his country of origin.32 Australia, as a signatory to the conven- tion, is obliged to provide asylum to refugees. Therefore, from a legal per- spective, the asylum seekers posed no challenge to the border integrity of Australia. An argument based on the rights of the refugees can deal with the claim about the undermining of Australian sovereignty where sover- eignty is understood in the modern sense. Confronted with the rights discourse, power can shift to a justification of means through an end—­t hat is, to ancient sovereignty. In fact, the state- ment “we will decide who comes to this country and the circumstances in which they come” was mobilized in precisely this manner. Three weeks 8  Preamble, or Power and Its Relations 153-53311_ch01_2P.indd 8 3/22/13 7:51 PM  before Howard made this statement, the infamous “children overboard af- fair” had unfolded. A sinking boat carry­ing asylum seekers was rescued by the Australian navy on October 6, 2001. The government released photos of children in the ocean, purporting that their parents threw them in the water so as to be rescued by the navy, thereby effectively reaching Australian territory. Although it was later revealed that children ­were not actually thrown overboard, the rhetoric of not wanting to take into Australia “the kind of people who put their children in danger” was widely used by the Howard government.33 The condemnation of exposing one’s children to harm became a moral denouncement of all refugees who ­were seeking pas- sage to Australian shores on leaky boats. Behaving in such a way was ex- plicitly framed as “unaustralian.” This posited an end, “australianess,” that was used to aggravate fears about the potential of a large wave of refugees on Australia’s northern doorstep to inundate the country and corrupt its moral substance. This justification was used in direct contravention to the Refugee Convention in order to transport asylum seekers to a remote Pa- cific island, where they w ­ ere effectively incarcerated while their refugee claims w ­ ere pro­cessed. A response to this moralizing justification was provided by the “We are all boat people” campaign.34 The campaign con- centrated on dispelling the myths about refugees—­for instance, by publi- cizing the facts of the “children overboard affair” as well as by challenging the perception that it is “unaustralian” to arrive by boat to Australia. How- ever, debunking the moralistic argument directly could not deal with a third modality of justification. This biopo­liti­cal justification of the violence exercised against the refu- gees interpreted the statement “we will decide who comes to this country and the circumstances in which they come” from the perspective of regu- lation. The asylum seekers arriving on boats in order to reach Australian shores ­were termed “queue jumpers.” They ­were portrayed as too impatient to await their turn to be pro­cessed offshore. Their supposed disdain of the norm was magnified to inflate yet more fears about refugees as a threat to a smoothly functioning Australian system of regulation—­for instance, by making claims on the welfare system, thereby asking the Australian taxpayer to “reward” them for their impatience and dismissiveness. Again, it is not difficult to counter such biopo­liti­cal justifications of violence against the refugees with facts. For instance, the Australian government had to expend much more significant resources to establish the various Preamble, or Power and Its Relations  9 153-53311_ch01_2P.indd 9 3/22/13 7:51 PM  detention centers for refugees than it would have needed to care for their welfare. However, sovereignty would counter such arguments by reverting to either the modern or the ancient form of justification. Thus, it was claimed, the detention centers w ­ ere “sending a message” that Australia is serious about the protection of its borders and that the Australian govern- ment was concerned to preserve the “fair dinkum” Australian way of life. The slippage among the three distinct modalities of justification was so rapid in the po­liti­cal speech around that time that the public rhetoric completely obscured their distinction. Ultimately it is that slippage itself that guards justification—­a slippage that is symptomatic of the cosupponibility of jus- tifications that protects sovereignty. Justification, as I will argue throughout the book and as the above example illustrates, can be disrupted only by adopting a double strategy. First, it is necessary to distinguish and counter the three modalities of justification in any specific case. I call this judgment “dejustification.” The strength of dejustification resides in concentrating on the specific—­the particularity of the case or the detail of the argument. In this sense dejustification has a par­tic­u­lar historical character that allows it to tackle the distinct modali- ties of justification. Its limitation is that it does not account sufficiently for the slippage of justification—­t he cosupponibility of the three modalities of justification. For this a different kind of judgment is needed: what I call “demo­cratic judgment.” This concentrates on showing that the function of  all modalities of justification is the same—­namely, the justification of violence. The role of the demo­cratic judgment is to describe forms of com- monality that counter violence. The basis of the demo­cratic judgment is  welcoming of the other as a way of disrupting the cycle of sovereign justification. The rapprochement of the two approaches to sovereignty—­t he epochal approach that leads to the distinction of different forms of sovereignty and the approach that identifies a logic of sovereignty—­achieves its full signifi- cance at this point. The rapprochement of the two approaches to sovereignty shows that the two kinds of judgment are in fact the way that judgment is registered in response to the two different approaches to sovereignty. De- justification responds to the distinction between the different modalities of justification, while the demo­cratic judgment counters the justification of violence that indicates the logic of sovereignty. This double aspect of judg- ment is recognized, mutatis mutandi, by Jacques Derrida in an address to 10  Preamble, or Power and Its Relations 153-53311_ch01_2P.indd 10 3/22/13 7:51 PM  Pantion University in Athens.35 Derrida identifies an unconditional thought that he associates with freedom and the demo­cratic imperative to hospitality and the welcoming of the other. The unconditional is distin- guished from sovereignty’s assertion of frontiers and of the pro­cesses that identify the foreigner. Derrida acknowledges that the unconditionality of a free, demo­cratic thought and the absolute power of sovereignty resemble each other. This leads to the question of how it is possible to distinguish them. “It is ultimately [because of ] a theologico-­political history of power,” answers Derrida.36 According to Derrida, then, the logic of sovereignty that operates through justifying the violence against whoever is deemed to be a stranger is interknitted with the historicity of the concept of power that has led to the formation of the modern concept of sovereignty. Thus any demo­ cratic thought, or the unconditional, in Derrida’s terms, has to do two things at once: to assert the freedom of hospitality, but also, in tandem, to do so while being mindful of the theologico-­political history that deter- mines sovereignty. The former corresponds to the kind of relation to the other that I call demo­cratic judgment, and the latter to the kind of relation opposed to the various modalities of justification that I call dejustification. How is it possible, then, to make a choice between sovereignty and de- mocracy? Are there any criteria that will help us decide between the two? Framed this way the questions are misleading, because they imply two things. First, they imply that it is possible to have democracy without sov- ereignty, judgment without justification. Nowhere in this book do I make such a claim. The reason is that I regard as the ultimate utopian illusion to believe in a politics where the justification of violence will be de facto com- pletely eliminated. Second, they imply that a choice or decision is possible, presumably because of some preestablished, secure rule or law that dictates right from wrong. I regard this moralistic desire for secure criteria as a corollary to the aforementioned po­liti­cal utopia. Instead, the questions can be answered by making two observations. First, if it is in practice impossi- ble to definitely separate democracy from sovereignty, then there is all the more reason to remain vigilant and proactive in exercising judgments. Democracy requires that endless task. Second, part of this task is the rec- ognition that sovereignty’s absoluteness—­that is, its circularity and self-­ referentiality that articulates itself through the cosupponibility of the different modalities of justification—­ t his absoluteness that appears to present sovereignty as omnipotent is, in fact, an assertion of the inferior Preamble, or Power and Its Relations  11 153-53311_ch01_2P.indd 11 3/22/13 7:51 PM  position of justification in relation to judgment.37 The reason is that it is only in order to avoid judgment that the logic of sovereignty lapses into slippage, allowing for the cosupponibility of justifications. This slippage is a defensive tactic against judgment. Obscuring judgment is sovereignty’s only chance in perpetuating the operation of its logic. Or, differently put, it is only because of its other, democracy, that sovereignty can operate. Thus it is not a question of what prevails—­democracy or sovereignty, judgment or justification—­but rather of describing the ways that sovereignty dis- simulates its reactive stance against democracy. The task is to recognize sovereignty’s reactive relation to democracy. Another name for this endless task is “judgment.” 12  Preamble, or Power and Its Relations 153-53311_ch01_2P.indd 12 3/22/13 7:51 PM  Notes P r e a m b l e , o r P o w e r a n d I t s R e l at i o n s 1. The crucial reason of approaching the question of sovereignty through justi- fication and the means-­a nd-­ends relation is that it essentially bypasses the pre­ supposition of almost the entirety of the recent literature on sovereignty—­namely, that the defining characteristic of sovereignty is exceptionality. This is not to say, of course, that exceptionality is not a characteristic of sovereignty, but rather that exceptionality is a product of the different modalities of justification. Such an ap- proach offers, as I will be showing throughout the book, the chance of a stronger critique of sovereignty than relying on exceptionality. 2. Ultimately this leads to the question of how sovereignty and democracy re- late to one another—­t hat is, what is the relation of their relations. This question is present throughout the study. It comes to the foreground in the final chapter. See also the concluding paragraph of this chapter. 3. This is at least a common view expressed in the secondary literature. For in- stance, Andrew McNeal contrasts Agamben’s approach to sovereignty with Fou- cault’s on the grounds that the latter offers a “historical critique of sovereignty” in his lecture course Society Must Be Defended; Andrew W. McNeal, “Cutting off the King’s Head: Foucault’s Society Must Be Defended and the Problem of Sovereignty,” Alternatives 29 (2004): 375. I will argue in Chapter 5 that there is a way of reading Foucault that presents his typology of power as being at the same time attuned to the limitations of understanding different forms of power as separated. 4. Even though Foucault continuously reworks the terms of his typology of power, the direction of his thought toward such a typology is already clear in Michel Foucault, History of Madness, trans. J. Murphy, ed. Jean Khalfa (London: Routledge, 2006), in which the operative term is that of confinement and hence of the modern power’s insistence on territory and the border. 153-53311_ch01_2P.indd 205 3/22/13 7:51 PM  5. The literature ­here is enormous, so I will only mention some indicative e­ xamples. In international relations one of the most interesting books remains Hedley Bull, The Anarchical Society: A Study of Order in World Politics, 3rd ed. (New York: Palgrave, 2002), a study on the distinction between internal and external sovereignty; and Stephen D. Krasner’s Sovereignty: Or­ga­nized Hypocrisy (Prince­ ton: Prince­ton University Press, 1999), which is an attempt to show that the devel- opment of sovereignty is based on the pragmatic principle that “might is right” instead of any universal principle. Hendrik Spruyt’s The Sovereign State and Its Competitors: An Analysis of Systems Change (Prince­ton: Prince­ton University Press, 1994) seeks to describe the transition from feudalism to modernity through an analysis of sovereignty. And Daniel Philpott’s Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Prince­ton: Prince­ton University Press, 2001) seeks to account for the transition between different forms of sovereignty ac- cording to the development of different conceptions of justice. Works on sovereignty in neighboring disciplines also make a similar set of assumptions. For instance, for a recent book on sovereignty from the perspective of geography, see John Agnew, Globalization and Sovereignty (Lanham, Md.: Rowman and Littlefield, 2009). 6. The standard turning point for the separation of internal and external sover- eignty according to this approach is the Treaties of Westphalia; see, for instance, Daniel Philpott, “Westphalia, Authority, and International Society,” Po­liti­cal Stud- ies 48 (1999): 566–­89. For a critical, dissenting view about the novelty of Westpha- lia, see Stéphane Beaulac, The Power of Language in the Making of International Law: The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia (Leiden: Martinus Nijhoff, 2004). The distinction between internal and external sovereignty relies on a strong sense of the border that separates states; see Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G. L. Ulmen (New York: Telos Press, 2003). For a critique of the idea of the border that is implicitly a critique of the idea of Westaphalian sovereignty, see two mag- nificent books: Eyal Weizman, Hollow Land: Israel’s Architecture of Occupation (London: Verso, 2007); and Wendy Brown, Walled States, Waning Sovereignty (New York: Zone Books, 2010). I also argue in Chapter 2 that the distinction between internal and external sovereignty is already implied in the po­liti­cal arrangement of the city states in ancient Greece. 7. For instance, Robert Jackson expresses the historical and substantive charac- terization of sovereignty according to this approach thus: “Sovereignty is a distinc- tive configuration of state authority. . . . ​Sovereignty is a historical innovation of certain Eu­ro­pe­a n po­liti­cal and religious actors who ­were seeking to escape from their subjection to the papal and imperial authorities of medieval Eu­rope and to establish their in­de­pen­dence. . . . ​It is a post-­medieval and, indeed, anti-­medieval arrangement of governing authority”; Jackson, Sovereignty: Evolution of an Idea (Cambridge: Polity, 2007), 5–­6. 206  Notes to page 2 153-53311_ch01_2P.indd 206 3/22/13 7:51 PM  8. Jacques Derrida, Rogues: Two Essays on Reason, trans. Pascale-­Anne Brault and Michael Nass (Stanford: Stanford University Press, 2005). 9. Derrida, The Beast and the Sovereign, vol. 1, trans. Geoffrey Bennington (Chi- cago: University of Chicago Press, 2009). 10. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-­Roazen (Stanford: Stanford University Press, 1998). 11. As Jens Bartelson avers, “the history of sovereignty ought to be studied not in isolation . . . ​but in terms of its multiple relations with other concepts within larger discursive ­wholes, these not necessarily being confined to po­liti­cal ones”; Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995), 2. One might be tempted to respond to Bartelson by following Carl Schmitt in arguing that the presence of the enemy who posits a threat to the state thereby leading to the “exception”—­t hat is, to the necessity to suspend the law in order to defend the state—­puts to rest any notion that sovereignty is not necessarily con- fined to po­liti­cal authorities; see Carl Schmitt, The Concept of the Po­liti­cal, trans. George D. Schwab (Chicago: University of Chicago Press, 1996). However, as Bonnie Honig has shown in her important book Emergency Politics: Paradox, Law, De- mocracy (Prince­ton: Prince­ton University Press, 2009), we can retain a notion of emergency without thereby forfeiting the prerogative to suspend the law to a single authority—­or, in other words, that the po­liti­cal is dispersed in a much wider spec- trum than Schmitt would have accepted. William Rasch also argues that contest- ability contained in the friend/enemy distinction that defines the po­liti­cal in Schmitt indicates the “primacy of the po­liti­cal” in the sense that “the po­liti­cal can take shape anywhere, not just in the po­liti­cal system of the modern state”; Rasch, Sovereignty and Its Discontents: On the Primacy of the Conflict and the Structure of the Po­liti­cal (London: Birkbeck Law Press, 2004), 11. 12. Georges Bataille, The Accursed Share: An Essay On General Economy, vols. 1–­3, trans. Robert Hurley (New York: Zone Books, 1988–­1991). For a recent article on Bataille’s conception of sovereignty, see Charles Barbour, “The Sovereign With- out Domain: Georges Bataille and the Ethics of Nothing,” in The Politics of Nothing: Sovereignty and Modernity, ed. Clare Monagle and Dimitris Vardoulakis (London: Routledge, 2013). 13. One such attempt can be found in Bartelson’s A Genealogy of Sovereignty. Chapter 2 describes the two approaches to sovereignty with recourse to specific disciplines—­international relations and structuralist sociology—­inferring that they highlight different, but valuable aspects of sovereignty. In the rest of his book, how- ever, Bartelson does not tackle the issue of a rapprochement between them. 14. Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard University Press, 2000), 37–43. 15. See also Negri’s Insurgencies: Constituent Power and the Modern State, trans. Maurizia Boscagli (Minneapolis: University of Minnesota Press, 1999). Notes to pages 2–3  207 153-53311_ch01_2P.indd 207 3/22/13 7:51 PM  16. Hardt and Negri, Multitude: War and Democracy in the Age of Empire (New York: Penguin, 2004), 340. 17. I take up this issue in greater detail in the chapter on Negri in my forthcom- ing book on stasis, which is the sequel to the present volume. For an outline of the argument about stasis, see Vardoulakis, “Stasis: Beyond Po­liti­cal Theology?” Cul- tural Critique 73 (2009): 125–­47; and for a short draft of the chapter on Agamben see Vardoulakis, “The Ends of Stasis: Spinoza as a Reader of Agamben,” Culture, Theory and Critique 51, no. 2 (2010): 145–­56. 18. The most important works on Benjamin’s influential essay are: Derrida, “Force of Law: The ‘Mystical Foundation of Authority,’ ” trans. Mary Quaintance, Gardozo Law Review 11 (1990): 919–­1045; Judith Butler, “Critique, Coercion, and Sacred Life in Benjamin’s ‘Critique of Violence,’ ” in Po­liti­cal Theologies: Public Religions in a Post-­Secular World, ed. Hent de Vries and Lawrence E. Sullivan (New York: Fordham University Press, 2006), 201–­19; Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005); Werner Ham- acher, “Afformative Strike: Benjamin’s ‘Critique of Violence,’ ” in Destruction and Experience, ed. Andrew Benjamin and Peter Osborne (Manchester, UK: Clina- men, 2000), 108–­36; Beatrice Hanssen, Critique of Violence: Between Structuralism and Critical Theory (London: Routledge, 2000). Peter Fenves’s The Messianic Reduc- tion: Walter Benjamin and the Shape of Time (Stanford: Stanford University Press, 2011), chap. 7, provides invaluable insights that place Benjamin’s essay in a new context. 19. Gewalt does not mean only violence, but also constituted power; see Étienne Balibar, “Gewalt,” in Historisch-­kritisches Wörterbuch des Marxismus, ed. W. F. Haug (Berlin: Argument, 2001), 5: 1271. 20. Walter Benjamin, “Critique of Violence,” trans. Edmund Jephcott, in Se- lected Writings, ed. Marcus Bullock and Michael W. Jennings (Cambridge, Mass.: Belknap, 2002), 1:237. 21. See, for instance, how Paul Kahn uses the idea of the essential relation be- tween sovereignty and the justification of torture in Kahn, Sacred Violence: Tor- ture, Terror, and Sovereignty (Ann Arbor: University of Michigan Press, 2008). For an original account of the link between violence and sovereignty, see Dimitris ­Papadopoulos and Vassilis Tsianos, “How to Do Sovereignty without People? The Subjectless Condition of Postliberal Power,” boundary 2 34, no. 1 (2007): 135–­72. 22. This conception leads both Benjamin and Spinoza to advocate a politics without ends or, in the language of the “Critique of Violence,” a politics of “pure means.” I am not taking up this comparison in the present book, but I will do so elsewhere. 23. Walter Benjamin, “Critique of Violence,” 1:237. 24. As the brief précis below will indicate, this book does not aim to be an ex- haustive account of different theories of sovereignty. Rather, texts have been se- 208  Notes to pages 3–4 153-53311_ch01_2P.indd 208 3/22/13 7:51 PM  lected so as to provide a programmatic outline of a theory of sovereignty that takes sovereignty to be, first, the expression of justifications of violence, and, second, an understanding of justification in terms of a means-­and-­ends relation. Thus the present volume functions as a prolegomena to a new theory of sovereignty. This explains the omission of important philosophical conceptions of power, for ­instance, by Kant or Hegel—­a n omission that I intend to address in subsequent publications. 25. Gilles Deleuze and Félix Guattari develop another tripartite typology of power in Anti-­Oedipus. Their account relies on a Nietz­schean account of debt. They argue that there are three systems of debt: the savage, the barbarian, and the capitalist; see Deleuze, and Guattari, Anti-­Oedipus: Capitalism and Schizo­phre­nia, trans. R. Hurley, et al (London: Athlone Press, 2000). The shift from debt in Anti-­ Oedipus to the justification of violence in the present book has to do with a shifting of the emphasis on sovereignty. Even though such a shift is important, and not withstanding methodological differences, still I regard the project ­here as compat- ible with Deleuze and Guattari’s account. 26. Sigmund Freud, Civilization and Its Discontents, in The Standard Edition of the Complete Psychological Works, ed. and trans. James Strachey (London: Hog- arth, 1953–­74), 21:57–­146. 27. Hardt and Negri, Empire, 16. 28. Obviously, I am not seeking ­here to argue either in favor of or against smok- ing. Rather, I am seeking to describe the way in which power justifies the imposi- tion of normalizing regulatory pro­cesses. Further, I do not suggest in any way either that regulation is “bad” as such, or that the absence of regulation is “good.” As I will argue in Chapter 5, regulation as such is neither “good” nor “bad.” Judg- ments about regulation can only be drawn based on par­tic­u ­lar cases. But this does not prevent us from generalizing when we consider the manner in which regula- tion is justified. 29. For an interesting discussion of identity politics, see Alexander García Dütt­ mann, At Odds with AIDS: Thinking and Talking About a Virus, trans. Peter Gilgen and Conrad Scott-­Curtis (Stanford: Stanford University Press, 1996). 30. See Étienne Balibar, “Subjection and Subjectivation,” in Supposing the Sub- ject, ed. Joan Copjec (London: Verso, 1994), 1–­15. 31. A full transcript of the speech, as well as an audio copy, can be found at “John Howard’s Policy Speech,” AustralianPolitics.com, ­http://​australianpolitics​ .­com​/news​/2001​/01​‑10​‑28​.shtml, accessed July 2011. 32. “Convention and Protocol Relating to the Status of Refugees,” available at  United Nations High Commission for Refugees, ­http://​w ww​.unhcr​.org​/protect​/​ P ­ ROTECTION​/3b66c2aa10​.pdf, accessed July 2011. 33. For a detailed account of the “children overboard affair,” see Andrew Marr and Mirian Wilkinson, Dark Victory (Crows Nest, NSW: Allen and Unwin, 2004). Notes to pages 4–9  209 153-53311_ch01_2P.indd 209 3/22/13 7:51 PM  34. The campaign was partly conducted through their website BoatPeople.org, at ­http://​w ww​.boat​‑people​.org​/, accessed July 2011. The website contains the most important material related to the campaign. 35. I am qualifying this statement because Derrida would tend not to speak of judgment. Is it possible to find a theory of judgment in Derrida’s philosophy? This is a question that I cannot take up ­here, but I hope to return to it on another occasion. 36. Derrida, “Unconditionality of Sovereignty: The University at the Frontiers of Eu­rope,” trans. Peggy Kamuf, Oxford Literary Review 31, no. 2 (2010): 127. 37. I describe in detail the slippages between the different modalities of justification—­what I have been calling ­here the cosupponibility of ancient, modern, and biopo­liti­cal sovereignty—­and the absoluteness of sovereignty in Chapter 1. 1 . J u d g m e n t a n d J u s t i f i c at i o n 1. Walter Benjamin, “Critique of Violence,” trans. Edmund Jephcott, in Selected Writings, ed. Marcus Bullock and Michael W. Jennings (Cambridge, Mass.: Belknap, 2002), 1:236. 2. See Aristotle, Politics, trans. H. Rackham (Cambridge, Mass.: Harvard Uni- versity Press, 1998), book 5. 3. For the theme of fratricide in the Bible, see Pamela Barmash, Hom­i­cide in the Biblical World (Cambridge: Cambridge University Press, 2005). For the po­liti­cal import of the Cain and Abel story, see George M. Shulman, “The Myth of Cain: Fratricide, City Building and Politics,” Po­liti­cal Theory 14, no. 2 (1986): 215–­38. For the Romulus and Remus story, see Machiavelli’s discussion in Niccolò Machiavelli, Discourses on Livy, trans. H. Mansfield and N. Tarcov (Chicago: University of Chi- cago Press, 1996), 116–­18. 4. Nikolas Kompridis, Critique and Disclosure: Critical Theory Between Past and Future (Cambridge, Mass.: MIT Press, 2006). 5. Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard Uni- versity Press, 2000), 40. 6. See, e.g., Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Dur- ham: Duke University Press, 2004). 7. Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max We- ber, Carl Schmitt, and Hannah Arendt (Cambridge: Cambridge University Press, 2009). 8. Aristotle, The “Art” of Rhetoric, trans. J. H. Freese (Cambridge, Mass.: Har- vard University Press, 1926), 1354a. 9. I mention ­here, only indicatively, Michel Foucault’s analysis of Las Meninas in the opening chapter of Foucault, The Order of Things: An Archaeology of the Hu- man Sciences (London: Routledge, 2002). 210  Notes to pages 9–17 153-53311_ch01_2P.indd 210 3/22/13 7:51 PM