The Refugee & the Decline of the Nation State

Andonis Tsonis
School of Law
University of Melbourne

A paper delivered at 'Forms of Legal Identity', 19th Annual Law & Society Conference, Melbourne, 10 - 12 December 2001

This paper explores how the genealogy of the refugee is related to seemingly unconnected historical instances of the ‘other’. Particularly, I refer to homo sacer and the pirate. The genealogy of these categories discloses my theoretical and practical interest in the 'bio-political' moment of the nation-state. My exploration of the bio-political is undertaken through Giorgio Agamben's, one of Italy’s most important and original philosophers, recent work and his displacement of Michel Foucault's periodisation of the bio-political.

In his recent work, entitled, ‘Homo Sacer: Sovereign Power and Bare life’, Agamben explores how Greek thought originally established the polis by opposing natural life (zoe) to politically or qualified life (bios). Agamben quotes Aristotle to demonstrate how this moment founded Western politics. In Aristotle’s words man was ‘born with regard to life, but existing essentially with regard to good life.’ The telos of politics was to free man from his natural state. In contrast to other animals, man could move beyond the simple sensations of pain and pleasure. Man’s politics, and his politicisation, was a necessary percussor to his invention of the good and evil, and later on, of the just and unjust.
Agamben’s concern is to expose natural life and its original inclusion in political life by the so-called virtue of its exclusion. Agamben gives new significance to Aristotle’s definition of man as ‘political animal’ (or politikon zoon). This is a stark contrast to Foucault’s periodisation of bio-politics, which he proposes at the end of his first volume of ‘The History of Sexuality’. For Foucault, natural or biological life’s entry into politics marked the threshold of modernity.
Foucault attributes biological life’s entry into politics as part of the nation state’s expansion of political strategies that impose on the human body and its freedom. Under this approach the sovereign’s right over life and death is a juridical fragment of the past. There is, instead, a novel emphasis on the nation’s health and its biological survival. Consequently, as Agamben points out, there has been a passage from the ‘Territorial state’ to the ‘State of population’ that is supported by meticulous modes of regulation and anatomic systems of discipline.
Foucault’s thesis relates to his unorthodox approach to power. Power is not something that the sovereign can continue to directly demand of us. Instead, power is arranged by a multiplicity of forces, fluctuating as they do, in a system of self-governing modes that have to be independently reckoned with. The sovereign can only regulate, but not produce the concrete conditions of power. Man, notwithstanding, is given a new and dangerous politics through which he can regulate his own existence.
As Foucault puts it, ‘for millennia, man remained what he was for Aristotle: a living animal with the additional capacity for a political existence; modern man is an animal whose politics places his existence as a living being in question.’ It is this reference to an ‘additional capacity’ that Agamben finds problematic, leading him to disagree with Foucault on the timing of biological life’s entry into politics. For Agamben, man’s capacity to place his own existence in question is part of the original fracture that gave bare life ‘the peculiar privilege of being that whose exclusion founds the city of men.’
The classical telos of a ‘good life’ can, in this instance, never form a durable solution to the paradox of bare life’s aporetic existence. In Agamben’s words, ‘We must instead ask why Western politics first constitutes itself through an exclusion (which is simultaneously an inclusion) of bare life.
Agamben reminds us that almost twenty years before The History of Sexuality, Hannah Arendt had already explored the relation of politics and life. For Arendt, so-called human rights did not protect what she called ‘the abstract nakedness of being human and nothing but human.’ From this Arendt concludes that man ‘can lose all so-called Rights of Man without losing his essential quality as man, his human dignity. Only the loss of a polity itself expels him from humanity.’ Human rights were not self-evident. On the contrary, human rights depended on politicised man and his emancipation within the polis. Political nakedness was by itself unable to guarantee the simple dignity of human life.
Agamben’s purpose is to show how the threshold of modernity is not so much the inclusion of bare life into the polis, which as he puts it is itself absolutely ancient. Instead, modernity’s crisis is premised on bare life’s original inclusion into the polis by means of an exclusion. Bare life is that object of the human experience that has always existed in the state of exception, which is increasingly becoming the rule where law threatens to permanently exist outside of itself. The decisive fact for Agamben,
‘is that, together with the process by which the exception everywhere becomes the rule, the realm of bare life – which is originally situated at the margins of the political order – gradually begins to coincide with the political realm, and exclusion and inclusion, outside and inside, bios and zoe, right and fact enter a zone of irreducible indistinction.’
However, what is this process by which the exception is everywhere becoming the rule and in what spaces can we locate this phenomenon? Agamben states that ‘The exception does not subtract itself from the rule; rather, the rule, suspending itself, gives rise to the exception and, maintaining itself in relation to the exception, first constitutes itself as a rule.’ Therefore, the exception is the foremost juridical element. In other words, sovereignty must rely on the exception to create the rule. The crisis for the modern nation state is that the exception is everywhere becoming the rule to the point where all law will eventually, everywhere, suspend itself.
A most striking space where we can locate this phenomenon is the prison camp. Inside the prison camp, law and punishment, zoe and bios, and exclusion and inclusion indeed enter a zone of indistinction. The prison camp is that tangible space where law has everywhere suspended itself in favour of the exception. As Arendt reminds us, even the detained criminal (unlike those in prison camps) benefits from the ‘right to residence’. The modern location of the prison camp is very close to home, Australia’s detention centres.
Even more striking, is how the state of exception attaches to the human body, and in this instance, becomes a nomadic target for violence. Agamben illustrates this in his story of homo sacer. Homo sacer is an archaic figure in Roman law that exists in the sovereign state of exception. Homo sacer is the sacred body that could be killed, but not sacrificed. In the figure of homo sacer, ‘the character of sacredness is tied for the first time to a human life as such.’
The paradox of homo sacer is its failure to emancipate the sacredness of man. The scared man, judged on account of a crime, could be killed by anyone with impunity. The manner of death, however, could not be in accordance with ritual practices. Homo sacer confirms the sacredness of man through a denial of human life as such, and then, even more strangely, considers his killing unpunishable. The sovereign’s original power over life and death is spoken through this historical figure.

However, if homo sacer feels too distant from our present, the category of the pirate can provide a more proximate example of a body that all are commissioned to kill. The pirate is a legal category in the history of Western politics that also exists in the sovereign state of exception. Pirates could be hung as matter of self-defence at the Main-Yard of their captor’s ship but could not be sacrificed. To sacrifice pirates was sacrilege and against the legal function of self-defence.
Originally piracy was considered a form of petit treason at common law. The crime of piracy was purposely linked to the subject’s allegiance. Foreigners could not commit piracy because this was no treason. Hence, the law of piracy related to the subject’s loyalty, which like citizenship was implied at birth. But what does allegiance mean and what does its loss impute? In East’s Pleas of the Crown ‘Allegiance is that obedience… which every person, under the protection of the law and government, owes, in return for that protection, to the person of the king…’ A loss of allegiance consequently implied a simultaneous loss of polity and sovereign protection. Under this approach pirates were called after the Roman law hostis humani generis (or, in English, the common enemies of mankind).
Nevertheless, pirates could not, through their misconduct, emancipate themselves from jurisdiction. A subject was unable to improve their legal status by a transgression of the law. Pirates, therefore, were at once both ‘outside’ and ‘inside’ of the law. However, this loss of polity also expelled the pirate from the human race. In this instance, the qualified life of the subject’s allegiance defined humanity. The simple fact of living was not enough to protect a version of humanity separate to the subject’s allegiance.
The pirate’s loss of humanity mirrors Agamben’s account of how the sovereign exception is everywhere becoming the rule. Foucault’s account of the sovereign’s original function however, is restricted to the sovereign’s exemplary power over life and death. The sovereign’s historical desire to punish those like pirates, who threatened this image, thereby shifted to the regulation and protection of the biological purity of the nation state and its citizenship. As Foucault puts it,
‘it is no longer a matter of bringing death into play in the field of sovereignty, but of distributing the living domain of value and utility. Such a power [no longer displays] itself in its murderous splendour; it does not have to draw the line that separates the enemies of the sovereign from his obedient subjects; [instead] it effects distributions around the norm.’
Foucault reminds us how the original image of the sovereign’s power over life and death was spoken through blood – ‘blood was a reality with a symbolic function.’ Blood relations arranged power according to systems of allegiance and descent lines. In what Foucault termed a ‘blood society’, blood was the highest value that was, paradoxically, capable of being quickly corrupted.’
Hence, a subject whose blood was corrupted was legally dead and left without blood relatives. The bloodlines of such a person were for eternity terminated. But blood’s capacity to be corrupted did not extend to the pirate. This is peculiar given that pirates had suffered a complete loss of polity that had an international character. In any event, a corruption of blood was not coincident with the pirate’s loss of polity. Conversely, as noted, subjects could not emancipate themselves from jurisdiction by a transgression of the law. The pirate therefore, was both an object and a subject of a sovereign power that, according to Foucault, could only recognise the symbolic bloodlines of subjects.
Agamben’s attempt to correct Foucault’s thesis is indeed a valuable contribution to understanding the modern category of the refugee. Foucault’s thesis renders the human body into an object of the nation state’s calculations, an idea that Agamben does not reject. But Agamben does not agree with Foucault’s periodisation of natural life’s entry into political life. Instead Agamben considers biopolitics as the original exclusionary function of Western politics, rather than that moment which marked the threshold of modernity.
But what is the current significance of Agamben’s periodisation of biopolitics and how does this relate to the modern category of the refugee? For Agamben, the historical task is not restricted to a tracing of the subject’s transition into a disciplinary object. Instead, Agamben reveals another simultaneous process that ‘corresponds to the birth of modern democracy, in which man as a living being presents himself no longer as an object but as a subject of political power.’
According to Agamben, modern democracy from its outset defines itself as a ‘vindication or liberation’ of natural life. Modern democracy is trying to reassert the freedom of natural life into the qualified life of the polis. The biological ‘moment’ of the modern nation-state is therefore confronted with a stark but ancient impasse. As Agamben highlights, modern democracy ‘wants to put the freedom and happiness of men into play in the very place – "bare life" – that marked their subjection.’
The refugee’s loss of humanity represents how bare life can never guarantee the happiness of men. The refugee, like the homo sacer and the pirate, is both a subject and object of the nation state, existing in the zone of indistinction. But the refugee unlike the pirate is also excluded on account of bloodlines. The modern category of the refugee, therefore, exists at the threshold of Agamben and Foucault’s categorisations. In other words, ‘the figure that should have incarnated the rights of man par excellence, the refugee, constitutes instead the radical crisis of this concept’ where the refugee is everywhere becoming the rule.
Hence, the refugee represents the decline of the nation-state, where the relation of politics and life, if life presents itself as what is included by means of exclusion, can never to be bridged. As Agamben elegantly puts it,
‘until a completely new politics… is at hand, every theory and every praxis will remain imprisoned and immobile, and the "beautiful day" of life will be given citizenship only either through blood and death or in the perfect senselessness to which the society of the spectacle condemns it.’
We have, according to many modern thinkers, in fact already entered a critical period, where the citizen and the refugee are crossing their respective thresholds into bloody neighbourhoods of indistinction. The refugee is the forerunner to this crisis and the coming collapse of the nation state.

Notes
Links to text references under construction

Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Translated by Daniel Heller-Roazen, California, Stanford University Press (1998).
Ibid 7.
Michel Foucault, The History of Sexuality: An Introduction, Translated from the French by Robert Hurley, Great Britain, Random House (1978) vol 1.
Ibid 143.
Agamben, above n 1, 3.
Ibid.
Agamben, above n 1, 7.
Ibid.
Hannah Arendt, The Origins of Totalitarianism, USA, Harcourt Brace and Company (1973), 297.
Ibid.
Agamben, above n 1, 9.
Ibid 18.
Arendt, above n 8, 296.
Agamben, above n 1, 71.
Charles Molloy, A Treatise of Affairs Maritime and of Commerce, Filmed from the original held by: Bibliotheek, Vredespaleis, Den Haag. Microfiche. Zug, Switzerland : Inter Documentation Co., 1984. 10 microfiches. (ILM ; 232) s1984 sz n b, London, T. Waller (9th ed 1769) vol 1, 83.
Sir Edward Coke, The Third and Fourth Parts of the Institutes of the Laws of England, Reprint of the 1644 ed. printed by M. Flesher for W. Lee and D. Pakeman, London in Classics of English Legal History in the Modern Era, New York, Garland Publishing (1979) vol 1, 111-114.
Edward Hyde East, Pleas of The Crown 1803, Facsim of 1803 ed. printed by A. Strahan, London in Classical English Law Texts, London, Professional Books (1972) vol 1, 49.
Alberico Gentili, De Jure Belli Libri Tres, Photographic reproduction of the ed. of 1612 with an English translation in The Classics of International law, Oxford, Clarendon, (1933) vol 16, 22.
Foucault, above n 3, 144.
Ibid 147.
Ibid 144.
There are technical reasons why pirates did not suffer a corruption of blood. This had to do with the fact that a corruption of blood was restricted to the law of escheats. Under the law of escheats a corruption of blood caused property to revert back to the lord of the fee who originally held the land. The goods and property of pirates, therefore, could only be forfeited. This meant that the sovereign could protect its share of spoiled goods against what would otherwise be the property of feudal lords. As Simpson puts it, ‘unlike escheats, forfeiture could not be of benefit to a mesne lord (i.e. a lord other then the King from whom lands were held). See A.W.B. Simpson, An Introduction to the History of Land Law, London, Oxford University Press (1961), 19-20.
Agamben, above n 1, 9.
Ibid.
Ibid 9-10.
Giorgio Agamben, ‘We Refugee’ (1995) 49 Symposium 114, 115.
Agamben, above n 1, 11.

Bibliography
Agamben, G. (1988) Homo Sacer: Sovereign Power and Bare Life, Translated by Daniel Heller-Roazen (California: Stanford University Press)
Agamben, G. ‘We Refugee’ (1995) 49 Symposium 114-116.
Arendt, H. (1973) The Origins of Totalitarianism (USA: Harcourt Brace and Company) ch 9.
Coke, Sir Edward. The Third and Fourth Parts of the Institutes of the Laws of England, Reprint of the 1644 ed. printed by M. Flesher for W. Lee and D. Pakeman, London in Classics of English Legal History in the Modern Era, (New York, Garland Publishing 1979) ch 49.
Edward Hyde East, H. E. (1972) Pleas of The Crown 1803, Facsim of 1803 ed. printed by A. Strahan, London in Classical English Law Texts (London, Professional Books 1972) vol 1.Foucault, M. (1978) The History of Sexuality: An Introduction, Translated from the French by Robert Hurley (Great Britain, Random House) vol 1, Part 5.
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