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Agamben, ontology, and constituent


power
Rad Borislavov
Published online: 21 Aug 2006.

To cite this article: Rad Borislavov (2005) Agamben, ontology, and constituent power, Debatte:
Journal of Contemporary Central and Eastern Europe, 13:2, 173-184

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DEBATTE, VOLUME 13, NUMBER 2 (AUGUST 2005)

Agamben, Ontology, and


Constituent Power

Rad Borislavov
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The problem of distinguishing between constituting and constituted power


has tended to baffle political thinkers in modernity. First outlined by Abbe Sieyes
during the heady events surrounding the French Revolution, the concept of
constituent power has figured prominently ever since in disciplines like
constitutional law, sociology, history, political science and last but not least,
ontology. In recent years, Agamben has undertaken a fundamental rethinking of
a number of concepts central to the tradition of Western metaphysics by
deploying, and working against the grain of, Aristotles definition of potentiality,
which for him is crucial for understanding constituting power. As Agamben
himself has admitted, self-consciously following Heidegger, the one problem
and its always one problem that occupies philosophersthat has animated
his engagement with philosophy is resolving to his satisfaction the aporia of
potentiality (Agamben Potentialities 177). As a result, he has produced a
monumental body of work that in each single instance has considered
potentiality in its relationship to history, language, death, art, community,
and law.
Today, it is Agamben who asks the most disturbing questions regarding the
distinction between constituting and constituted power. What is at stake in
this ambitious project is not simply the future of an allegedly revolutionary
tradition that still insists on using the concept of pouvoir constituant but also
our understanding of the kind of power that has defined the political experience
of the Westsovereignty. Not only constituent power but also its corollary and
mirror concept, sovereignty, can be rendered comprehensible only after being
exposed to the logic of potentiality. If we accept Agambens description
of modernity as the state of emergency, it is only because both the suspension of
the juridical order and its very constitution are dependent upon an interpretation
of potentiality both extremely influential and very problematicin Agambens
words, the law presupposes the non-juridical (for example mere violence in the
form of the state of nature) as that with which it maintains itself in a potential
relation in the state of exception (Homo Sacer 2021). As a result, not only

ISSN 0965-156X print/1469-3712 online/05/02017312 2005 Taylor & Francis


DOI: 10.1080/09651560500306853
174 RAD BORISLAVOV

is there no exteriority to the law, an exteriority that is somehow untainted by


sovereignty, but what is law also becomes fuzzy. Thus, at its most radical,
Agambens wager against the democratico-revolutionary tradition will be:
constituent power is impossible to distinguish from sovereign power.
In contemporary debates, it has been Agambens distinct contribution to bring
the discussion of constituent power within the sphere of ontology. He has argued
consistently that only by posing the ontological questionWhat is constituent
power?can we hope to do justice to the density of this ambivalent theoretical
construction. Such a questioning is imperative not only because the concept of
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constituent power, in all its terseness and apparent accessibility, symbolizes both
a certain rationality of modernitythe eruption of a power exterior to
constituted power and embodied in a collective subjectbut also its failure.
By raising the ontological question, Agamben registers a definite dissatisfaction
with what would seem to be the interminable oscillation of constituting and
constituted power in modernity and here, of course, he follows none other than
Benjamin (Homo Sacer 40).
Benjamins thought has exerted an enormous influence on Agamben and
Benjamin will certainly figure prominently in this investigation. I will later
draw on Zizeks critique of messianic politics and the ethical turn in leftist
politics but here it will suffice to point to his critique of constituent power as a
foil to radical attempts at rethinking the nature of the political, which is
precisely Agambens project.1 I would like to juxtapose Zizeks demurral, How,
then, are we to revolutionize an order, whose very principle is constant self-
revolutionizing? with Agambens call for a new, novel, yet-unthinkable and
unthought ontology (213). How does one approach critique if the critique itself
is complicit with the modern production of biopolitical terror? How does one
approach critique if late capitalism provides the conceptual and symbolic frame
of reference and even more? I will try to suggest that, particularly with respect to
the concept of constituent power, Benjamins influence on Agamben has resulted
in an eschatological awaiting of a radically new ontology. Here Agamben echoes
Benjamin, who notoriously, while trying to resolve the contradictions of law-
making and law-preserving violence, calls at the conclusion of his essay Critique
of Violence, for the expiating effect of a divine violence which will annihilate
both of these. Agamben, similarly, appeals to a new ontology of power.
Benjamin, who in other places evinces an obvious dialectical penchant (one only
needs to think of his concept of the dialectical image) that has endeared him to
Marxists, here opts for a messianic resolution to this antinomy (rather than
contradiction).2 I will suggest that the political relevance of these claims, which
are also visible in Agamben, is highly questionable.

1
Agamben is by no means the only one to veer into the messianic whose most influential interpreter
has been Walter Benjamin. Etienne Balibar has also recently voiced a similar position in his Politics
and the Other Scene.
2
It is interesting to note that in his own interpretation of the problem Agamben, in light of his
ontological project, chooses to describe this quandary as an aporia.
AGAMBEN, ONTOLOGY, AND CONSTITUENT POWER 175

The aporias and the difficulties to which the concept of constituting power
has given rise in modernity, and the failures to come to terms with this
formidable concept, tell a story of their own. Not only does it encapsulate most
cogently the experience of modernity but it hardly has the same threatening
tones today, when a satisfied multitude of last men is ever less likely to resort to
violence as a means of effecting social change. Acknowledging the end of a
politics reliant on the physical massing of bodies, the concept of constituting
power also highlights some of the ongoing transformations of the political that
must be grasped in their ontological dimension. Agamben will grant that much as
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well. His own disturbing conclusions about the nature of state power in Western
democracies are in full force here because, as he suggests, in the thoughtful
analysis of the intersections of potentiality, sovereignty, and the exception,
we run up against . . . the ontological root of every political power (48). Thus
for Agamben nothing less than a new ontology of power and a new potentiality
divested of sovereignty, more radical than the ones already undertaken by
Nietzsche, Schelling, and Spinoza will redeem the promise of modernity.
We must pause here and ask what is presumed in Agambens call for a new
ontology of potentiality. Zizeks question does not lose any of the weight it
has when addressed to Agambens thought. If Agamben so eloquently articulates
the complicities between a concern with pure being that has defined Western
metaphysics and bare life (both pure and bare derive from the Greek haplos),
what would be the best way to address this troubling proximity? Thus I am
particularly interested in how Agamben applies the concept of potentiality to
sociopolitical phenomena; elsewhere, and repeatedly, Agamben approaches
the same problem from other angles. For the most part, he accords potentiality,
and especially in its relation to subjectivity, a very positive role which would
mean that it does not stand in need of revision in that particular sense.3 In The
Coming Community, potentiality is what is most properly human and therefore
most precious. What then is so radically amiss in the potentiality we experience
in the form of constituent power?4
Historically, political thinkers have been much less cautious than Agamben in
ascribing a nature to constituent power and therefore eliding the ontological.
Thus for Sieyes, and many after him, constituent power refers to the power that
by definition lies outside state juridical norms and has the potential of founding
a new constitution and a new legal order. Importantly, for Sieyes constituent
power is conflated with the nation as its subject while the nation itself exists in
the state of nature, that is, outside the state. Sieyes What is the Third Estate?
is a passionate vindication of the rights of the oppressed in France in the face
of aristocratic privilege. However, by celebrating a particular historical agent as

3
Agambens best example of the positive role played by potentiality comes from the poetry of Anna
Akhmatova. The ability to say I can reveals a potentiality that is to be treasured as that which is
most properly human (Potentialities 17778).
4
There is a constantly growing body of literature on Agamben, very often following too closely
Agamben himself and therefore quite esoteric. See, for example, Leland Deladurantaye.
176 RAD BORISLAVOV

the subject of constituent power, Sieyes will set the stage for a tradition that
will only too gladly privilege constituting power and assign historical agents to
represent it, albeit with protagonists different from Sieyesin this sense one
only needs to think of Marxs proletariat and more recently Hardt and Negris
multitude, or Schmitts apodictic foregrounding of the role of sovereign but also
Hegels world-historical individuals. In Homo Sacer Agamben will engage in a
conversation with this tradition whose celebratory tone and optimistic
pronouncements cloud some of the more disturbing aspects of the distinction
between constituting and constituted power. There Agamben will caution
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that even

if constituting power, as the violence that posits law certainly is more noble than
the violence that preserves it, constituting power still possesses no title that
might legitimate something other than law-preserving violence and even
maintains an ambiguous and ineradicable relation with constituted power.
(Homo Sacer 40)

His chapter with the title The Logic of Sovereignty, in Homo Sacer, fully
explicates the logic of the constitution and preservation of sovereignty
by showing that the ambivalence at the root of constituting power vitiates its
claim to deliver a more just social order. The immediate interlocutor here is
Antonio Negri whose Insurgencies has recently made precisely this claim: The
constituent power of the multitude is the horizon of a rational modernity as we
know it, but also its future. Negri, very much in the democratico-revolutionary
tradition of Sieyes, is quick to posit a historical agent vested with constituent
power.5 Thus for Negri, the political history of modernity is best rendered as
a narrative in which the free creative activity of the multitude is reined in by the
wiles of liberal constitutionalism. However, the new rationality . . . will
represent itself in a logic of the singularities in process, in fusion, and in
continual surpassing (330). Agamben acknowledges that Negri also calls for
a new ontology of constituting power but counters that Negri still remains very
much within the theoretical framework of modernity he finds so problematic.
The call for a new ontology is nothing less than a desire for awakening
from the nightmare of history in Negris case. Implicitly, however, Agamben will
impugn the entirety of this democratico-revolutionary tradition that persists
in advocating a permanent revolution, as it were, oblivious to the political
fiascos of the great totalitarian states in the twentieth century that consistently
embodied the logic of constituting power only to fail dramatically. It is certain,

5
Negri writes the following about constituent power: Thus, far from being an extraordinary
apparition or a clandestine essence caught in the net of constituted power, constituent power is
the totalizing matrix of the political. Both the traditional metaphysical definitions of the political
as command over the community or the irrational definitions that imagine the political as the realm of
more or less legitimated violence haplessly fall away in front of what the political really is: the
ontological strength of a multitude of cooperating singularities (Insurgencies 332, italics in
original).
AGAMBEN, ONTOLOGY, AND CONSTITUENT POWER 177

Agamben argues, that in both of these cases [Soviet Union and Nazi Reich]
constituting power either appears as the expression of sovereign power or does
not let itself be easily separated from sovereign power (42).
Yet the culprit for this naively uncomplicated view of the revolutionary
history of modernity (one in which constituting power triumphs for a moment,
and is then smothered by constitutionalism) for Agamben is a certain kind
of ontology which derives from Aristotle. For Agamben, the question of
constituting power vis-a `-vis constituted is best addressed by casting it into
Aristotles ontology of potentiality. To the extent that constituting power is
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characterized by potentiality, in contradistinction to positive law and state


power, we need to go back to Aristotle where the play between potentiality and
actuality receives its most definitive treatment. Agamben will argue that
potentiality and actuality in Aristotle in fact coexist in indistinction and this
zone of indistinction gives us the best chance of defining the logic of
sovereigntyhomo sacer, the refugees and the musselmann are the extreme
cases that most excruciatingly suffer this potentiality of the law. The argument is
complicated and is predicated on accounting for the existence of potentiality
(Agambens example is that of a kithara player who preserves his ability to play
even while not playing). If potentiality is not to exhaust itself in actuality (as the
Megarians claimed it does) it must be able to suspend itself. It is only in this sense
that we can define potentiality as different from mere logical opposition
between the potential and the actual in which the actual is always the primary
reference point.
Aristotle, Agamben goes on, is interested in articulating the specific mode
of existence of potentiality. If potentiality is to exist and not exhaust itself in
actuality, it must be able to exist sovereignly. It is here that Agamben draws the
fundamental parallel between the ontological status of potentiality and
sovereignty. Potentiality has a structure homologous to that of sovereignty
because it is capable of maintaining itself without passing into actuality. Thus
potentiality must also be the potentiality to not be. Potentiality gives itself to
itself and this is its distinct mode of existence. Potentiality maintains itself
in actuality precisely through its ability not to be (Homo Sacer 46). We are left
with a uniform world in which all that is not potential is actual, actuality is then
that which does not have being but depends on the sovereign suspension of
potentiality. We can conclude from this that there is no way to distinguish
between constituting power and sovereign power. As Agamben rightly claims,
sovereign power is most conspicuously potentialit is only activated when a
transgression has occurred, a violation of the law that needs to be corrected
(48). Hence the conclusion that Agamben draws: Being is sovereign and it divides
itself into a constituting and a constituted moment. This is the obscured and
forgotten meaning of Aristotles dissection of the concept of potentiality, which
has proved determining of our understanding of power as a sovereign act
of suspension.
But why take such a circuitous route to substantiate an observation that was
well known to de Maistre, to whom Carl Schmitt grants pride of place, along with
178 RAD BORISLAVOV

another Catholic theologian, Donoso Cortes. In his Study on Sovereignty


de Maistre, for example, writes:

But the author of nature has set bounds to the abuse of power: he has willed
that it destroys itself once it goes beyond its natural limits. . . . This is a crude
image of power. To conserve itself, it must restrain itself, and it must always
keep away from that point at which its most extreme effort leads to its own
death. (118)

This description of sovereign power by de Maistre comes very close to the


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interpretation of potentiality Agamben will find in Aristotle to show that


sovereign power is defined by giving itself to itself, or, by suspending itself in the
manner that Negri reserves exclusively for constituting power. Yet to the extent
that constituting power partakes of potentiality it is implicated in the principle
of sovereignty. While Negri simply assumes that constituting power is irreducible
to constituted power and marked by radical alterity for Agamben this difference
seems only apparent.
Yet, some of Agambens critical remarks regarding the role of potentiality
are suspect in their own right. Not only is his insistence on a founding moment,
an origin in this saga of constituting power in the work of Aristotle too
Heideggerian, but also his dependence on classical categories (duly criticized
by Agamben when Arendt herself tries to revive classical political categories)
to shed light on contemporary juridico-political concerns. What do we gain by
situating the problem of constituting power within the purview of ontology?
In one of his key statements on the importance of reontologizing constituting
power Agamben claims that

Until a new and coherent ontology of potentiality (beyond the steps that have
been made in this direction by Spinoza, Schelling, Nietzsche and Heidegger) has
replaced an ontology founded on the primacy of actuality and its relation to
potentiality, a political theory freed from the aporias of sovereignty remains
unthinkable. (Homo Sacer 44)

This potentiality, which even at this point borders on the ineffable, must
be conceived

without any relation to Being in the form of actualitynot even in the extreme
form of the ban and the potentiality to not beand of actuality as the fulfillment
and manifestation of potentiality. . . . This, however, implies nothing less than
thinking ontology and politics beyond every figure of relation, beyond even the
limit relation that is the sovereign ban. (Homo Sacer 47)

Earlier in Homo Sacer, Agamben has explained that not only the state of
exception appears as an example of the ban but that the discrete exceptions he
invokesthe refugee, homo sacer, the musselmann in his oeuvreare also
fundamentally defined by, and their plight is indicative of, a relation of exclusion
in which the very suspension of the law only further reveals the logic of
AGAMBEN, ONTOLOGY, AND CONSTITUENT POWER 179

potentiality in which the law exists. To dismantle socially constituted relations


is what Agamben will also propose in later works like The Coming Community
under the sign of the whatever. The imperative of the new ontology will
therefore be to go beyond the relation.
If, as Zizek claims, the question of taking power is more and more
irrelevant today since there is no longer any central Power agency that plays a
de facto decisive role, and this is a new and possible conversation Agamben has
with Foucault, very different from the one in which Agamben faults Foucault for
identifying a putatively liberatory potential in the body. The question now
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becomes: Why insist on reontologizing sovereignty and pure Being? (201). In a


sense, the status of Agambens theoretical interventions in the political hangs on
this question. It is only near the conclusion of Homo Sacer, and more like
a suggestive allusion, that Agamben offers yet another exfoliation of the theme
of sovereignty which is presupposed but overdetermines the argument in the
book. Here we learn that the preoccupation of Western metaphysics with
defining pure Being runs parallel to an ever greater inclusion of zoe into bios
that is, according to Agamben there is a structural similarity between what would
seem to be, the strictly philosophical problem of Being and bare life. As limit
concepts, both point to a zone of indistinctionone could say that reason
cannot think bare life except as it thinks pure Being, in stupor and in
astonishment (182). This is precisely the point where metaphysics fades
into politics and politics into metaphysics.
I would like to turn to a question similar to the one Zizek raises a ` propos
of Deleuze in his recent book Organs Without Bodies: Deleuze and
Consequences: Isnt the very elaborate scheme Agamben offers, veiled in
medieval scholastic references, the community of singularities, united in the
whatever, and thereby with no relation to Being and law, that which is
precisely an expression of late capitalism, the very transience of its relations
also amply exemplified in The Coming Community? If Zizek finds ample reason
to vigorously criticize Deleuze, whose concepts like bodies without organs,
diffuse networks, disembodied affects (Spinozas imitatio afecti), nomadism,
are eminently given to appropriation by yuppies and late capitalism as
a whole, it also stands to reason that at the moment Agambens critique of
the ethico-juridical discourses structuring modernity takes the direction
of possible future modes of community, it immediately become very
problematic. Zizeks closing remarks in Organs Without Bodies refer us to
the obsoleteness of the question of revolution because the question becomes,
as he puts it, How is one to revolutionize an order that is quite successful at
revolutionizing itself? Perhaps this is the question today (213). According to
this view, then, it would seem that the question of constituent power that so
taxingly exercised the minds of post-Enlightenment political thinkers
may be receding in the annals of modernity after all; it has been solved
not so much because of a new and even more revolutionary ontology as
Agamben seems to suggest (in the spirit of, though not following him to
the letter, what Heidegger had called das Ereignis, the appropriating event)
180 RAD BORISLAVOV

but on account of something much more mundanethe specific historical


conditions obtaining under late capitalism.
This tautological and counterintuitive phrase of revolutionizing the revolu-
tionary is also representative of the state of exception Agamben describes.
In asking how one is to go beyond the modalities of the state of exception,
Agamben imagines a possibly even greater disruption in the discourse on
Being that has defined Western thought, and this would also mean in the
concept of bare life, a disruption and a limit beyond which we cannot venture
without risking an unprecedented biopolitical catastrophe (188). This mood
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of expectation, the messianic pathos that I have suggested is reminiscent


of some of Benjamins thoughts on history and thereby too messiano-
eschatological, may make it impossible for us to see some more prosaic and
immediate changes.
According to Agamben, the problem of constituting power is not of the
order of the logical but rather an ontological enigma redolent of Benjamins
eschatology. It was Benjamin himself who, in the face of the irresolvable
contradictions of law-preserving and law-making violence (two terms that
are coextensive with constituted and constituent power), the sheer impossi-
bility of differentiating between the two, spoke of a divine and sacred
violence beyond representation, a violence that will both transcend and
annihilate the mythical violence perpetuating a vicious circle whose genealogy
goes back to Ancient Greece. In his Critique of Violence essay,
Benjamin writes:

But all mythic, lawmaking violence, which we may call executive, is


pernicious. Pernicious, too, is the law-preserving, administrative violence
that serves it. Divine violence, which is the sign and means but never the means
of sacred dispatch, may be called sacred violence. (251)

In broad strokes, Benjamin here dismisses both law-founding and law-


preserving violence (he calls both of these mythic because they derive from
Greek exemplars like Niobe, Appolo, and Prometheus) and opposes them to
divine violence. In his criticism of Benjamins exultation in messianic violence,
Derrida has highlighted the troubling aspects of this choice. In his Force of
Law essay, Derrida finds an affinity between Benjamins view of expiating
violence proposed in the last sentences of Critique of Violence and the final
solution: One is terrified at the idea of an interpretation that would make of
the holocaust an indecipherable signature of the just and violent anger of God
(298). For Benjamin is not interested in the history of a critique of violence but
rather in a philosophy of history:

A gaze directed only at what is close at hand can at most perceive a dialectical
rising and falling in the law-making and law-preserving forms of violence. The law
governing their oscillation rests on the circumstance that all law-preserving
violence, in its duration, indirectly weakens the law-making violence it
represents, by suppressing hostile counter violence. . . . If the rule of mythic law
AGAMBEN, ONTOLOGY, AND CONSTITUENT POWER 181

is broken occasionally in the present age, the coming age is not so unimaginably
remote that an attack on law is altogether futile. (251)

This is of course Benjamins wager for divine violence. Agamben will repeat
this gesture by inscribing his concern with potentiality outside of history proper,
outside of the endless enumeration of successes and failures. Coextensive with
this claim is also Benjamins argument against parliamentarism as a particularly
acute form of forgetting of the founding violence which has created
parliamentary institutions.
This emptying out of particular relations is, as one critic has remarked, the
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region of Agambens politicsemptied of subject and object and radically


impersonal (Wall 161). As Agamben himself explains, A true community can
only be a community that is not presupposed (The Coming Community 47) but
this injunction against presuppositions comes at a price. A community that is not
presupposed is like the Idea of language in which there is nothing presupposed (as
opposed to particular words) and here we see operative a purest potentiality
which language gives itself to itself. In all of these ontological categories we have
the same mechanism of potentiality we found in regard to constituting power. As
Wall has put it, all entry into language establishes a possible belonging or
relation-in-general (160). Because sovereignty always works along the model of
the ban and the establishment of relation, for Agamben only the most attenuated
fleeting relations are admissibleevery other relation would authorize a politics
based on sovereignty.
In Agambens oeuvre there are understandably vacillations on the importance
and significance of potentiality. Unlike its sinister and highly undesirable
effects in Homo Sacer, potentiality in The Coming Community is accorded a
particularly important task where it makes possible the only ethical experience
[which] is the experience of being ones own potentiality (43) while the only evil
consists in regard[ing] potentiality itself . . . as a fault that must be always
repressed (43).
I would like to take a step back and consider what Agamben has implicitly
silenced in this overarching and totalizing genealogy of modernity. In a recent
article in the Boston Review, Larry Kramer points to the falling fortunes of
popular constitutionalism in the US. While the history of popular constitution-
alism in the US is quite rich and complex it also allows us to glimpse at how
liberal constitutionalism deals with the problem of sovereignty. The division of
powers in the liberal state notwithstanding, in recent years it has become the
rule that the Supreme Court has assumed the role of interpreting the
constitution for everyone else. In Kramers words, The president, Congress,
the states, and ordinary citizens can all express opinions about the meaning of
the Constitution. But the Justices decide whether those opinions are right or
wrong, and the Justices judgments are supposed to settle matters for
everyone (14). The doctrine of judicial supremacy, which was historically
opposed to the departmentalist view, summarizes this state of affairs, and might
be usefully approximated to what Schmitt defined as the effective and only
182 RAD BORISLAVOV

apparent emptying out of the political in liberal democracy while the need
for eminently political decisions remains very much in force. The fundamental
question is: Who interprets the constitution?
Kramer points out that the debates about the relative advantages of
departmentalism and judicial supremacy go back to the 1790s and only recently
has judicial supremacy come to dominate interpretations of the constitution.
If we assume that, barring Agambens fundamentally new ontology, sovereignty
still plays an important role, then we need to attend to the difficulties associated
with this predicament. The more mundane question would be who and how
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exercises power. Liberalism is certainly not toothless, nor is it incapable of


decision (as US interventions amply show), it simply presents its intentions in the
garb of universalism and good will but the problem of sovereignty is by no means
wished away in the doctrine of the separation of powers. That no social order can
sustain itself without a sovereign was clear enough to conservative thinkers
since the Enlightenment. Thus, in an effort to put in perspective Agambens
teleology and his apocalyptic messianic language, we might offer the following
objection: a liberal theory of sovereign power understands full well the
paradoxical relation between law and fact, norm and exception; and, precisely in
light of such an understanding constructs an institutional system that cannot
resolve the paradox but nonetheless attempts to prevent it from reaching an
intensified and catastrophic conclusion (501). Agamben will insist, of course,
as Nasser Hussain rightly observes, that we are stuck with the very same
assumption with which we began: the source of the problem is not the
institutional operation of sovereign power, but its objectbare lifeso too the
solution is not a proliferation of institutional safeguards but a rethinking of that
mode of being (501).
My argument so far has been informed by the assumption that we need to read
Schmitt both selectively and against many of his assertions, and despite the
efforts of critics like Heinrich Meier who have attempted to present an
essentially religious Schmitt, Schmitt retains only a very attenuated form of
theology in his conceptual framework. For the Schmitt of Political Theology
and the Verfassungslehre, it is of utmost importance who makes the decision on
the exception, and not the ontological structure of the decision that Agamben
tries to explicate. The necessity for a strong sovereign in Schmitt is indeed
buttressed on a theological reference that acts by analogy (the miracle as
analogous to the sovereign decision) but the thrust of the argument is concerned
with the prosaic and immediate effects of power. It is conceivable that the
rulings of the Supreme Court, to the extent that they remain unchallenged,
approximate the decisions of a sovereign, of the one who decides on the
exception, behind the veil of a broadly determined consensus, or Schmitts
favorite image of the bourgeoisie as the clasa discutidora, the class that
endlessly discusses. Agamben himself would not be averse to such a view because
the rulings certainly bring out the zone of indistinction between law and fact, as
well as the groundlessness of decision making constitutive of modernity. The
question, however, is what is to be done about it?
AGAMBEN, ONTOLOGY, AND CONSTITUENT POWER 183

In his zeal to reveal the essence of potentiality and the role of constituting
power, to bare the origins of an ontology that has defined the experience of
power in the West but also to work toward the coming of a new one,
Agamben inadvertently casts himself in the role of a philosopher king. The
paradoxical conclusion, given Agambens insistence on ontology (he complains
about the meager propensity of our time for ontology) (The Coming
Community 89) and the equation of ontology with biopolitics, is that we must
make the guardians philosophers after they have duly internalized Agambens
delphic pronouncements. How else is one to move from the oppression of
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ubiquitous sovereignty to whatever singularity without invoking the compro-


mised potentiality of constituting power as revolution? It is interesting, and
again paradoxical, that Agambens philosopher appeals to a sovereign on
behalf of his new ontology, that is, to the developed Western democracies. If
power continues to be exercised sovereignly what difference would a new
ontology really make? Isnt that what Heidegger attempted to do in his
Rectoral address, although of course with a completely different political
purpose? But for Agamben, a thinker who has chosen to dwell in uncertainties
and ambiguities, the proximity of a disastrous outcome authorized by a
possible new ontology and a truly new beginning is what is most intellectually
satisfying.

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