Cutting the Branches for Akiba

Abstract

This article appears in an anthology of essays that consider the political thought of one of Europe's leading contemporary philosophers, Giorgio Agamben. Agamben is not yet well-known in the Anglo-American legal academy, but this has been changing recently with the publication of a series of books (collectively titled Homo Sacer) that address, at a unified philosophical level, some of today's most pressing problems of sovereignty, law, and politics. In this essay I examine Agamben's political thinking by approaching it through the first-philosophical framework that underwrites it. This examination takes the form of a critique of Agamben's critique of Jacques Derrida's critique of metaphysics. Over the course of his career Agamben has consistently returned to his critique of Derrida as a point of departure for his own affirmative theses and this pattern holds true in Homo Sacer as well, justifying, I hope, this somewhat abstract point of entry into Agamben's political thought. In a nutshell, my conclusion is that in his critique one finds two competing understandings of the nature of philosophical thinking, one (Agamben's) that gives priority to the question of ontology, and the other (Derrida's) that gives priority to the question of ethics, that is, of the relation to the other. Based on this analysis, I attempt to draw out the prescriptive consequences of this difference for the two thinkers' accounts of the political. For Agamben, what follows is a rejection of legalism tout court in favor of a total transformation in social relations that dispenses with the form of law entirely. Derrida's position, on the other hand, leads to a thoroughly (ethically) committed politics, one that accepts, however, both the legitimacy of the legal form and the appropriateness of incremental, reformist action in at least some political situations. Finally, in the concluding section I try to bring these abstractions down to earth by showing how they play out concretely in one area of law that provides an excellent test for Agamben's political theorizing, the United States Supreme Court's current constitutional limitations on capital punishment.