Spaces of Benevolent Abandonment: The German Air Security Decision of 2006

Abstract

This paper presents the 2006 Air Security decision rendered by the German Constitutional Court as an occasion to question typical assumptions in critical scholarship about the relations between sovereign power and biopolitics and about the kinds of political spaces these logics can generate. After a brief overview of the argument the first part of the paper summarizes the 2006 Air Security decision and the legislation it addressed. Public debates in Germany around the issue are then surveyed, with an emphasis on the contrast drawn by a number of commentators between utilitarian and ‘Kantian’ ethical positions. As a result of the apparently Kantian line it took, the Court conjured a specific but ambivalent space of ‘benevolent abandonment’. The latter half of the paper explores the theoretical implications of the decision, arguing that understanding it as Kantian is too simple, and relating it to Michel Foucault's and Georgio Agamben's theorizations of the nexus of biopower and sovereignty. While the 2006 decision does not easily fit within Agamben's discussion of the ‘sovereign ban’ in Homo Sacer (Stanford University Press, 1998), it can be grasped by means of another strand of his reasoning, most fully developed in his discussion of “inoperativity” in The Kingdom and the Glory (Stanford University Press, 2011).