The Colony as Exception
(Or, Why Do I Have to Kill You More than Once?)
University of Minnesota
The extra-legal behaviour of the Bush administration has seen calls that we live in a global 'state of exception'. The conjuncture has made prominent thinkers of the exception, particularly Giorgio Agamben. Scholars use the term to describe colonial and metropolitan spaces alike to the extent that it is becoming a commonplace. However, the exception is a problematic paradigm for thinking colonial spaces. This is because the exception is marked by law, implying maintenance, in suspension, of recognition between sovereign power and governed. It is this recognition that enables the sovereign to 'know' the governed on a biopolitical terrain. When this recognition is denied or non-existent, as in colonial spaces, the sovereign is unable to know the governed, leading to violence, reaction and collapse of sovereign power. I offer a caution to seeing every space as a state of exception by highlighting the difference between exception and colony.
Introduction: Invocations of Exception
If today there is no longer any one clear figure of the sacred man, it is perhaps
because we are all virtually homines sacri (Agamben, 1998: 115).
1. In recent scholarly analysis, the term 'state of exception' - the decision to suspend law by the sovereign in order to preserve the legal order - has been used to describe multiple conditions. Sometimes, the term has been used as a convenient generalization, in other cases it has been invoked in its specificity. Indeed, the extra-legal behaviour of the Bush administration has seen calls that we live in a global 'state of exception'. Within a conjuncture when the Bush administration plays fast and loose with the law, Carl Schmitt and Giorgio Agamben have become the referents for theorizing this state of exception. The latter theorist further brings together the exception with biopolitics, or power exercised through optimizing the life of the governed, rather than threatening their death. I argue that the rubric is, however, analytically underspecified, and a questionable paradigm for thinking colonial spaces .
2. Let us begin with examples of how easily the state of exception is extended to include the colony. Achille Mbembe, whose work is a referent for this essay, writes that 'commandement (rationality of colonial rule) was based on a regime d'exception - that is, a regime that departed from the common law' (2001: 29), and elsewhere, 'the colonies are the location par excellence where the controls and guarantees of judicial order can be suspended - the zone where the violence of the state of exception is deemed to operate in the service of "civilization"' (2003: 24). Similarly, in arguing for an understanding of capitalism as inseparable from the production of death, Subhabratha Bannerjee begins by delineating his object: 'in the colonies (either "post" or "neo"), entire regions in the Middle East or Africa may be designated as states of exception' (2006). Randall Williams, in his turn, explores the import of metropolitan policing from the colonies as originating in and marking 'a state of permanent exception': 'for this passage to the modern, the power to rule over the (colonial) exception and the capacity to deploy police force will serve as our guiding principles' (2003: 325). Finally, Derek Gregory uses the exception to think current colonial situations, 'the splinters of Palestine have thus been formed into a scattered, shattered space of the exception' (2004: 136), and 'the degradation of Iraq's towns and cities - the reduction of its civil society - was not an eternal "state of nature" at all: it was produced as the space of the exception' (2004: 220). Against this conflation of colony and exception, I want to pose a corrective, which will augment the significance of the quoted work rather than detract from it.
3. To the claim that colonies are states of exception, I pose the factical disintegration of sovereign power in those spaces, specifically that of colonial regimes. This indicates at least a point of difference with a generalized state of exception, which maintains sovereign power indefinitely. This observation is my point of departure to mark the specificity of the exception, namely its undertheorized politics of visibility, which is predicated on life as human, marked by rights. When we turn to the colony, however, we find that the native does not necessarily start out as human in the eyes of the colonizer, suggesting that the distinctively modern rubrics of state of exception, sovereign power and biopolitics may misrepresent colonial situations. Bluntly put, the exercise of violence by state authority does not automatically equate to a state of exception. Violence in the colony is a symptom of the weakness of sovereign power, not a sign of its strength.
The Question of State Failure
The absence of effective governance in many parts of the world creates sanctuaries for terrorists, criminals and insurgents. Many states are unable, and in some cases unwilling, to exercise effective control over their territories or frontiers, thus leaving areas open to hostile exploitation (United States National Defense Strategy).
4. My point of departure is the phenomenon of the 'failed state', the state which cannot exercise a monopoly of violence within its borders. The attributed sources for this inability are various, from ethnic divides (Jackson and Rosberg, 1982) to geography (Herbst, 2000). The term refers mostly to African states, but its corollary 'weak states' is broad enough to include a majority of polities in the world. A glance at any list of 'failed' or 'weak' states turns up one consistent attribute: all are ex-colonies. The phenomenon of 'state failure', and its correlate 'state weakness', occupies policy makers, as the epigraph from the US Defense Strategy indicates. I will not critique here, however, the way in which such terms produce whole populations as helpless, requiring imperial intervention (Grovogui, 1996).
5. I want to rather highlight how the broadcast of state authority in much of the ex-colonial world is precarious, to the point that central authority in some spaces has collapsed, to be supplanted or supplemented by alternative forms of social organization, such as criminal networks (Hansen and Stepputat, 2006). One does not have to point to the usual suspects, Somalia and Afghanistan, to illustrate this point. If the exercise of the rule of law, enforced solely by a central authority, is the mark of a state in the Weberian sense, parts of otherwise stable states such as India would qualify as cases of state weakness. The obvious counter is that the Weberian ideal-type is just that, an ideal-type. Theoretically, however, forms of state order do not operate on a continuum from monopoly of violence to dispersion thereof between several actors. The principle of indivisible sovereignty, in the modern era, demands rule by one over a given territory. The term 'failed state' is therefore entirely consistent with the heritage of understanding the modern state: it is the monopoly on violence that enables the state to decide on the exception (Schmitt, 1985). International statecraft is predicated on there being one decision-making centre that can make credible commitments. Domestically, for the exception to have meaning, the sovereign's writ must be the only one. Crudely, can there be an exception without a sovereign who can decide?
6. The key to posing an objection to the notion of colony as state of exception is the factical failure of sovereign power in the colony. Through the word 'factical', I want to draw attention to the way in which the failure of sovereign power in the colony is not an accident but a consequence of the nature of colonial power as it is understood by its subjects. Heidegger's analysis of facticity focuses on a being's understanding of its relationships with other beings as it finds itself thrown in the world (1962: 82). The mere fact of a being's existence is therefore not the same as its facticity, which is established by its engagement with other beings. Similarly, the disintegration of sovereign power in the colony is brought about by natives who apprehend the unequal nature of their relationship to colonial rule and strive to bring about its demise. The current focus on state failure sees it as generally a problem of malfunctioning governments (Chesterman et al, 2005: 361). But the fact of state failure should not obscure how it is brought about, often as unintended consequence, by subjects: the factical disintegration of state power. To do so is to misunderstand colonial history, even as scholars and policymakers call for a renewed imperial commitment to fix failed states .
7. In three senses, the colony was the original failed state. The colony was a space of heteronomy, where different social codes coexisted, often in schizophrenic manner. Heteronomy meant that the decision on the exception could not be made by one actor, who would therefore be sovereign. In the colony, ad hoc alliances between colonizer and disparate groups, under a broad rubric of divide-and-rule destabilized the exercise of power by always alienating one or the other group. Finally, colonies did not fall because of external wars, but from within, through the understanding of colonial rule developed by colonial subjects. In this paper, I focus on this third sense, which is politically crucial at a moment when proponents of American empire argue that Pax Britannica collapsed because of the cost of fighting world wars, not as outcome of anti-colonial movements. Niall Ferguson offers one of the more prominent examples of such arguments when he writes, 'just as Hitler had predicted, it was rival empires more than indigenous nationalists who propelled the process of decolonization forward', and 'in the end, the British sacrificed her Empire to stop the Germans, Japanese and Italians from keeping theirs' (2003: 352, 355).
8. The failure of the colony lies in the structure of recognition, or more correctly non-recognition, between the sovereign and governed, and the way the governed apprehend and battle it. The colonial power does not allow the native qua native to be recognized as an equal, or capable of governing herself; this is indeed the rationale for continuing foreign rule. What recognition is given the native lies in the extent to which the native apes the colonial power, what Homi Bhabha has called colonial mimicry (1994: 92). The humanity of the native is therefore not entirely denied, but is first, conditional on the will of the colonizer, and second, rendered in terms laid down by the colonizer. The humanity the native can potentially inhabit is therefore never on her own terms. The inequality between colonizer and native, and the impossibility of the native governing herself, means that the colonial power always functions as a foreign power, not needing local legitimacy. This is a marked distinction to the western state, where the continuity of rule is linked to subjects governing themselves, as originally theorized by Aristotle. Therefore, the colony collapsed as a result of its own contradictions, primarily that violence formed the rationality and currency of rule, to which anti-colonial struggles responded in kind: 'it is the intuition of the colonized masses that their liberation must can, and can only, be achieved by force' (Fanon, 1965: 73). The question to be asked of the colony is therefore: how can there be factical disintegration of sovereign authority in a theoretically ideal state of exception, where the sovereign is not encumbered by law?
9. That violence is the currency of sovereign-governed relations in the colony affects the status of law therein, and by implication, the exception. The colony is marked by the sovereign's refusal to respect the law, which is why the colony is described as exception. But the sovereign does not suspend the law in the colony; the law never existed in the first place. Fanon writes that 'the colonial regime owes its legitimacy to force and at no time tries to hide this aspect of things' (1965: 84). The reciprocity or recognition which marks the law is absent in the colony, and this absence is constitutive of colonial sovereignty; as Mbembe puts it, 'sovereignty in the colony derives not from the law but from the fait accompli ... by definition, it does not require the consent of the defeated; it is thus marked ab initio with the vice of violence' (2001: 183). The colony is marked by the non-recognition of the governed by the sovereign from which the factical disintegration of sovereign power cannot be disarticulated.
10. The state of exception, on the other hand, is declared to preserve sovereign power. In an emergency, the sovereign suspends the law because if the law was obeyed, the state itself would be threatened. The paradigm of the exception remains Nazi Germany, where the law was suspended in 1933 and never reinstated. The Third Reich did collapse, but its collapse was from without rather than within, as happened in the colony. The exception is designed to avoid the collapse of sovereign authority and with it the social order. The disintegration of sovereign authority in the colony should suggest that the rubric of exception may not be valid in that instance. As a general point, the exercise of violence in excess or outside the law does not automatically equate to a state of exception. Why then, is the incidence of colonial violence outside and often not in relation to the law thought under the rubric of exception? This is possible because the precarious status of state authority in the colony is not thought with equal emphasis. When we factor in the relation between colonial violence and the failure of the colonial state, the state of exception is not just an inadequate framework, but may have an entirely different ontology from the colony. It is to this that I turn next.
The Mark of the Law
11. The exception is a suspension, not transgression, of the law, and as such it preserves the law. This maintains the reciprocal relationship between sovereign power and the governed that constitutes corpus, or the substance to be mapped according to biopolitical rubrics. We see this in the antecedents to the Holocaust, which involved a complex process of redefining German Jews to situate them outside the body politic. As Hannah Arendt points out 'even the Nazis started their extermination of Jews by first depriving them of all legal status (the status of second-class citizenship) ... the point is that a condition of complete rightlessness was created before the right to live was challenged' (1951: 295). Arendt indicates the necessity of a project of desubjectivation prior to the exercise of violence on German Jews. Raul Hilberg's Holocaust history reveals an extraordinary focus to deal with the Jews within the space of the law. Giving one of many representative examples, he writes that '(President of the Reichsbank) Schaht did not oppose anti-Jewish action ... He opposed "wild" party measures ... he preferred the legal way, that is, certainty instead of uncertainty' (2003: 36). Why did the Nazi regime expend so much effort in legislation that made the Jews juridically 'life not worth living'? Surely, as the embodiment of sovereign power, it did not need the imprimatur of law for it was already the source of law and in any case, the German public at large was supportive of discrimination and violence against the Jews. In other words, the measures against Jewry hardly needed to be legitimated in the eyes of the public through law. What was at stake then?
12. That the Holocaust had to begin with ordinary juridical rewriting is the key to understanding the state of exception as a generalized form of rule. The torturous legal justification of the separate categories for Jews marks the double movement of incorporation that marks sovereign power. What is at stake is the formation of a corpus, or a corporate body, on which the sovereign exercises power: 'corpus is a two-faced being, the bearer both of subjection to sovereign power and of individual liberties ' (Agamben, 1998: 125, emphasis in original). In modernity, 'it is not the free man and his statutes and prerogatives, nor simply homo, but rather corpus that is the new subject of politics' (124). Modern power operates on a population biopolitically, placing the latter's life at the center of its governmental operations. The state of exception reveals the rationale of sovereign power: to preserve the corpus, not, as in archaic sovereignty, the person of the sovereign, and not, as liberal theory would have it, to protect the individual subject. In Foucault's felicitous term, rather than let live and make die, as archaic sovereignty did, modern power makes live and let die (2001: 239).
13. The corpus, then, is a corporate body that is held together by a certain relation of reciprocity between sovereign power and life, or a population. Let us call this a debt to life. The Nazis embarked on complicated juridical redefinitions precisely in order to maintain the corporate-ness of the German social corpus, by not committing criminal actions on the life it was indebted to. Rather, through a process of desubjectivation
The calamity of the rightless is not that they are deprived of life, liberty and the pursuit of happiness, or of equality before the law and freedom of opinion - formulas which were designed to solve problems within given communities - but that they no longer belong to any community whatsoever (Arendt, 1951: 295, emphasis mine).
In other words, the legal convolutions surrounding the status of the Jews were meant, through expelling them, to preserve the social body as corpus under law and to dispel the notion that the Nazis exercised arbitrary power.
14. The corpus has two meanings: it is a corporate body, and it is constituted by a reciprocity that entails a debt to life. This debt to life is institutionalized in law which recognizes the population through the mark of rights. The state of exception is a temporal suspension of this debt, and the lapsing of rights within it, but never a renouncing of it for
in truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where insides and outside do not exclude each other but rather blur into each other ... the suspension of the norm does not mean its abolition, and the zone of anomie that it establishes is not (or at least claims not to be) unrelated to the juridical order (Agamben, 2005: 23, emphasis mine).
To renounce the debt would be to renounce the corporate-ness of the social body, leading to collapse; and run counter to the whole aim of government, which is 'to increase (the state's) strength within an extensive and competitive framework' (Foucault, 2000: 317). The state of exception does not destroy law precisely to keep the corpus intact; even if it involves desubjectivating some of its members in order to do so.
15. Because the exception is declared to preserve the corpus, the law is preserved, not as a protection against the sovereign, but as a way of mapping the corpus. The law is an optics, through which biopolitics operates, a point Agamben elides. In the exception, he writes, the law has force without significance: 'what, after all, is the structure of the sovereign ban if not that of a law that is in force but does not signify?' (1998: 51, emphasis in original). In the exception, the law holds but has no significance as meaning, in that it does not protect subjects from random acts of sovereign violence. But there is a second meaning to 'signify': to indicate . In the exception, the law continues to signify, in the sense that it marks subjects in ways that enable them to be mapped in a biopolitical schema. Subjects may no longer be protected by the law in the exception, but they are still rendered visible in the eyes of the sovereign by it. Foucault pointed to the juridical nature of biopolitics as predicated on recognizing and coding the governed as rights-bearing citizens: 'the right of sovereignty was the right to take life or let live ... and then this new right is established: the right to make live and let die' (2003: 241, emphasis mine). The biopolitical is predicated on a system of right that means the law continues to signify, even if it does not protect the governed from the sovereign. Rather, the law continues to mark the governed in ways that makes them visible and enables knowledge and biopolitics. The legal redefinitions of the status of German Jews can be understood as an effort to expel them from the corpus but keep them visible through the mark of the law, with the wearing of the yellow star of David its ghoulish metaphor.
16. The mark of the law points us towards a politics of visibility. Regimes of biopolitical visibility, such as private hospitals, are not always coextensive with state apparatuses. Rather, they are ways of making things visible that are not entirely outside sovereign power, but still distinct from the operation of law. Biopolitics is predicated on recognition, through the law functioning as optic, which enables knowledge of the population. It is only slightly an exaggeration to say that biopolitics is a project of knowledge before it is encompassed by sovereign power, for 'what occurred in the eighteenth century in some Western countries ... was nothing less than the entry of life into history, that is, the entry of phenomena peculiar to the life of the human species into the order of knowledge and power, into the sphere of political techniques' (Foucault, 1978: 141-142). It was through taking charge of the body and optimizing its life by a slew of apparatuses; hospitals, schools, barracks; that the bodies of the governed opened for investigation. The state's involvement in biopolitics is not direct or unmediated: the state does not take charge of bodies immediately, but through regulating the intermediary apparatuses of knowledge and care that open up the body at first, under the broader object of a population. In other words, the state entered the biopolitical scene after a set of knowledge-apparatuses already existed. This requires us to view skeptically claims that the juridical relation with human life is originary, as Agamben puts it (1998: 9). Human life was understood and disclosed as a scientific object before it was encompassed by state authority and apparatuses. Foucault writes
power would no longer be dealing with legal subjects over whom the ultimate dominion was death, but with living beings, and the mastery it would be able to exercise over them would be applied at the level of life itself; it was the taking charge of life, more than the threat of death, that gave power its access even to the body (1978: 142-143, emphasis mine).
The relation between the sovereign and governed is mediated by a set of knowledge-power apparatuses that transform the relation away from a power over death to a promise of life. It is this promise, which is a specific form of recognition, that opens the bodies of the governed to biopolitical supervision.
17. The issue of visibility is equally an issue of when human life, as opposed to life in general, emerged as the substance of politics. For Foucault, biopolitics is a modern invention, hence so is man, while Agamben argues that sovereign power has always been inseparable from the production of bare life (1998: 6, 9). If biopolitics is a modern form, its object, the human, would be equally a recent invention. However, in Agamben, life always exists in relation to sovereign power, and this life is implicitly human life; suggesting that the human has always existed in relation to sovereign power as biopolitical. The 'entry of life into history' that Foucault discusses is a specific relation between the sovereign and the human, as opposed to the relation between sovereign and living being. Agamben is undoubtedly correct to say that sovereign power has always operated in relation to life, but it is the humanity of that life that is distinctively modern. Sovereign power may always have operated by deciding on whether life is bios, the 'form or way of living proper to an individual or group (animals, men or gods)', or zoe, the 'simple fact of living common to all living beings' (1998: 1), but in modernity, both signify human life. The faculty of speech, which marks the political subject, is disaggregated from the living being for the first time in modernity. That is, a living being can exist and be recognized by sovereign power in modernity as a biopolitical body that does not need a voice. In modernity, political subjects do not need to speak to be subjects, they need merely to be human in a biological sense. This transforms the ground of sovereignty from life that speaks to human life that just is. The human is not just a relatively recent invention, but the status of the human is not stabilized and cannot be taken for granted, as we will see in the case of the native in the colony.
Who Can Occupy the Place of Language?
Man is not always already in the place of language, but he must come into it (Agamben, 1991: 68).
At the risk of arousing the resentment of my colored brother, I will say that the black is not a man (Fanon, 1967: 8).
19. In the state of exception, human life always already exists, it is a matter of the status of that life: is it a political subject or bare life? Homo Sacer, the man who can be killed but not sacrificed, whose originary exclusion defines the social order, is always human. As I suggested above, this human is neither given nor transhistorical: man has not always been human in the biological sense. Yet, for Agamben the subject of politics has never been anything other than human. In the colony, however, there is no guarantee that the native is recognized as human, he/she occupies the place of the animal, the thing and nothing (Fanon, 1965: 42). Bare life is produced in the state of exception by its simultaneous inclusion and exclusion in the corpus. But its production is predicated on its prior existence as human life. If anything, the political subject must be produced as bare life, but that both are human life to start with is unquestioned. This existence of human life is the ontology of the state of exception. It is this politics of visibility in the state of exception that Agamben does not acknowledge. That life is visible is a product of a certain hierarchy of life, human and animal. It is because Homo Sacer starts off as Homo that it can become Homo Sacer: it is always already human to begin with and its humanity is the target of desubjectivation. The human must be made inhuman in the camp: this is the ontology of the exception (Agamben, 2002). The colonized however, does not begin as human. This points us towards the different ontological status of the colony.
20. The political subject in the state of exception is not assured of political status simply by being a living human being. The political subject must become such through speaking, as Agamben points out, 'there is politics because man is the living being who, in language, separates and opposes himself to his own bare life and, at the same time, maintains himself in relation to that bare life in an inclusive exclusion' (1998: 8; 1991: 85). This is comparable to Martin Heidegger's figure of Dasein, being-there, which is the basis of the political subject. Dasein is marked first by a being-towards-death that is tied irrevocably to the capacity for speech (Heidegger, 1962; Agamben, 1991). The starting point for this Dasein is its factical existence, marked by the possibility of death and its understanding thereof: 'Dasein is an entity whose Being has the determinate character of existence' (1962: 34). The facticity of Dasein, that it is first a being that can ask the question of Being, is the beginning of politics. Dasein does not exist as is, but becomes a subject through occupying the place of language, which discloses to it its Da, its place in the world. The voice brings forth the political subject, and this access to language through the voice marks the subject as human. The subject does not begin as human, but as a living being that becomes a political subject through the human faculty of speech. Heidegger rejected the implication that Dasein was first and foremost a living human: 'life in its own right, is a kind of Being; but essentially it is accessible only in Dasein ... life is not a mere Being-present-at-hand, nor is it Dasein ... in turn, Dasein is never to be defined ontologically by regarding it as life ... plus something else' (1962: 75). This means that speech establishes the subject's living being itself; not that the political subject is a living being that also possesses the faculty of speech. Agamben's account of Homo Sacer elides the becoming of Dasein, which is also inescapably a becoming-human. The living being occupies the place of language, a place that is nothing other than human, to become a Dasein. A living being becomes a Dasein; that is nothing other than human; through finding a voice. Its subject-ity lies outside itself, in the (human) place of language which it must occupy through speaking which exposes it to the truth of Being: 'language is the house of Being in which man ek-sists by dwelling, in that he belongs to the truth of Being, guarding it' (Heidegger, quoted in Derrida, 1982: 131, emphasis mine).
21. In other words, Dasein cannot be other than human, but sovereign power has not always operated in relation to human life. Prior to modernity, it was the political status of the living being (bios) that was established by his speech, as opposed to his living being (zoe). In that sense, the political subject is recognized as a living human being only in modernity. The political subject who becomes such through speaking is a Dasein. When mapped merely as human, Dasein is itself devalued; because when the human is biological, it need not speak to be a subject. The biological human is a recent invention, wrote Foucault (1970: 386), wherein any one can accede to the status of a political subject by invoking the universal rights of the human ('ain't I a woman', Sojourner Truth said), and at the same time this accession to humanity enables the subject to appear merely as life in biological terms. As Derrida points out, Dasein, while not man, is nothing other than man, whether in modernity or not. Hence Heidegger's objection to humanism was not that Dasein was inhuman, but that asserting the humanity of Dasein placed its value too low (Derrida, 1982: 130). Dasein is not ontologically human but becomes such through speaking, occupying the place of language, which is an exclusively human relation. In modernity, the becoming of Dasein can be reduced to the biology of a human being, because the modern sovereign recognizes subjects as biological beings and relates to them on that biopolitical level, and the essential link to speech becomes epiphenomenal to subjection.
22. In modernity there is a tendency for human life to be grasped in its facticity, in two senses. First, life is understood in its biological sense. Second, biological existence becomes the basis of political life (Agamben, 1998: 150-153). The Nazi state may have taken this tendency to its farthest extreme by declaring a permanent state of exception, making the biological markers of Aryan life the basis of existence for a political subject. But the emergence of biopower, which extended beyond the Nazi instance, marks the distinctively modern grasping of human life in its facticity, or the making of its biological existence the condition of understanding necessary for political life.
23. In modernity, the link between speaking and the political subject is frayed, but not disarticulated, by biopolitics, which makes the voice epiphenomenal to political subject-ity. Obviously, the governed do not stop talking at the decision of the sovereign. The target of sovereign power is the ability to speak, disabling the governed to seek redressal against it, but to do so is an ongoing project. It is the possibility of speaking that sovereign power seeks to eliminate by reducing the subject to a catatonic state in the camps (Agamben, 2002). Bare life is bare because it is made to lack a Da (a 'there', a place in the world) that is disclosed through language. The camp is the exemplary site of exception, and it is worth asking what happens within it. Agamben writes that 'the camp is a hybrid of law and fact in which the two terms have become indistinguishable' (1998: 170, emphasis in original), because the camp reduces citizens to Homo Sacer, for whom the law and the fact of sovereign power operate as one and the same. The mechanism through which desubjectivation happens, however, is not clear. Is it the brutality of the camp that denies inmates their place in the world? Is it the rewriting of law that places the inmates outside of it? Or is it the decision, unilateral and factical, that desubjectivates the inmates?
24. Law becomes fact and fact becomes law through denying the inmate the ability to mark a difference between them by robbing him or her of the ability to speak. Brutality, legal rewriting and decision are means through which the subject is denied a position from which she or he can speak, and the ability to speak. Placing someone outside the law may deny a position from which to speak, but because the law is not abolished, the possibility of redressal still exists. The sovereign needs not only to exclude Homo Sacer, but to silence her altogether. The camp is an exemplary sight of the production of this silence. Jean-Francois Lyotard described an injury as not just a wrong done to another, but done in such a way so the other is dispossessed of the means to seek redressal in a court of judgment (1988: 5). The reduction of the political subject to Homo Sacer is the deprivation of a place in the world (a Da), through the deprivation of the ability to speak to seek redressal. The camp guards at Auschwitz told the inmates that no one would believe their testimony, an act of tremendous violence which took away the future and its hope of testifying (Agamben, 2002). Most of all, the guards sought to reduce the inmates to catatonia, to the Muselmann who could not speak to testify against them .
25. The passage from the distinction between fact and law to the zone of indistinction happens through denying the subject the capacity to speak and mark the distinction at all. Fact and law coincide only when the law continues to exist, even if suspended, and those injured cannot appeal to it. Such injury is achieved by depriving subjects of the capacity to speak. We find therefore that the ontology of the state of exception is in fact political subjects who become such through speaking, and who can therefore be desubjectivated and made Homo Sacer. I will argue that this is qualitatively different from the colony.
26. If Dasein becomes such through occupying the place of language, the possibility of doing so is denied to the native. The educative or civilizing imperative of colonialism stems from this denial, in the dual sense of the native being unable to speak and not possessing language. The civilizing imperative was not cynical legitimation as much as perfectly consistent with the ontological premises of the native as incapable of speech and hence not a political subject. Take as example modern liberalism, for which pedagogy among unequals was the ground on which to relate to Indians:
India is a child for which the empire offers the prospect of legitimate and progressive parentage and toward which Britain, as a parent, is similarly obligated and competent. For (John Stuart and James) Mill and Macaulay this point is the basis of denying democratic rights and representative institutions to Indians, along with various other imperial interdictions. The idea has a distinguished pedigree and in the liberal tradition originates in Locke's characterization of tutelage as a necessary stage through which children must be trained before they acquire the reason requisite for expressing contractual consent (Mehta, 1999: 32).
We can discern three tendencies; first, the notion that even in the liberal universal order, there are conditions to be attained through education for a subject to appear as capable of consenting in a contractual sense. Biological existence is no guarantee of subject-ity. Second, the burden of pedagogy, insofar as it exists, is a unilateral decision on the part of the colonizer: the Indian cannot demand it as a right. Third, and following, the capacity to be subjectified is also held in abeyance, at the will of the colonizer. It should go without saying at this point that the privileging of reason within ethnocentrism is equally privileging of speech, or logocentrism (Derrida, 1994).
27. The desubjectivation inflicted on Homo Sacer is therefore different to the status of colonial subject, or native. The native is human, capable of speech, only at the whim of the colonizer. A priori, the native is an animal, a thing of use, a child, or nothing. Fanon describes the colonizer-native relation as without recognition, where 'the black man has no ontological resistance in the eyes of the white man' (1967: 110), and contrasts it to the master-slave relation because 'for Hegel there is reciprocity; here the master laughs at the consciousness of the slave ... what he wants from the slave is not recognition but work' (220). The role of recognition marks simultaneously the work of desire and antagonism between the master and the slave. The master desires recognition from the slave and is willing to sacrifice his own life to be recognized as master. Without this recognition, the master is condemned to subjective self-consciousness, not the objective self-consciousness that comes from recognition by the other. As Mbembe puts it, 'to be subject, my singularity must posit itself as totality within the consciousness of the other ... I must stake it in such a way that, in the end, I can recognize myself in the other's consciousness as that particular totality that is not content to exclude the other but seeks "the death of the other"' (2001: 192).
28. In the colony, a paradox marks this relation between colonizer and native. On the one hand, the colonizer seeks to impose his will on the native. On the other, the native lacks the faculty that would allow him or her to recognize the colonizer: as an animal, he or she cannot even speak. Alexandre Kojeve highlights speech as the first premise of Hegel's phenomenology, namely, 'the existence of the revelation of a given Being by speech' (1980: 43). In the colony, the master's desire is deferred infinitely; not only is the native incapable and not worthy of recognizing the colonizer as master, the encounter does not risk the life of the colonizer in any meaningful way. Although the colonizer of course runs the risk of losing his biological life, the battle is no longer fought at the level of consciousness, because the native has none. Hence the colonizer is condemned to never actually attain mastery in the colony. The native appears as a nothingness, enabling the most arbitrary exercise of sovereign power at the same moment that it erodes sovereign power of any meaning or mastery, indeed, of sovereignty.
29. I pointed out earlier how the subject of the exception attains subject-ity through occupying the place of language. The native is unable to do so, for two reasons. First, as Fanon points out, language is never the native's to start with. Not only are the native's languages not seen as such, but to speak the colonizer's language submits the native to a form that can never be his: 'the colonized is elevated above his jungle status in proportion to his adoption of the mother country's cultural standards', through its language (Fanon, 1967: 18). Second, the native's capacity to speak is never an ontological given. The place of language, when occupied by the speaking voice, gives rise to a subject. Language in the colonial context is configured in such a way that its enunciation, the taking place of language, can never be uttered by a native qua native. If the native speaks, it is as alienated other, 'not white, not quite'. In the exception, sovereign power seeks to deny the subject the ability to speak. In the colony, that ability never existed: speech by definition could never come from the native.
30. Readers might find this analysis too totalizing, and I would agree that colonial rule did indeed involve some recognition of the governed, often based in the pedagogical project through which some natives could be made worthy of humanity (Mehta, 1999). Additionally natives were objects of desire, a status that involved some degree of recognition (Bhabha, 1994: 76). And colonial rule involved myriad alliances with native rulers, deployments of local traditions and employment of local elites as bureaucrats (Mamdani, 1996). That said, my emphasis on the non-recognition of the governed is not intended to be either comprehensive or polemical. Rather, it is aimed at elucidating the failure of the colony as a consequence of the nature of colonial rule and the way it was apprehended and eventually deposed by its subjects. While colonies were governed through myriad forms, in the last instance, the colony was governed by force without legitimacy. This led to its disintegration as the population turned against it. The ambiguity with which the colonizer approached the native should not obscure what the failure of the colony tells us.
31. The severing of the native from the capacity for speech marks equally the impossibility for the native to form a community in the eyes of the sovereign, most starkly in the case of the slave reduced to a useful thing. Mbembe points out that 'the slave condition results from a triple loss: loss of a "home", loss of rights over his or her body and loss of political status ... as a political-juridical structure, the plantation is a space where the slave belongs to a master ... it is not a community if only because by definition, a community implies the exercise of the power of speech and thought' (2003: 21). But, contra Mbembe's argument that the plantation is therefore a biopolitical space and a state of exception, we can see that the reciprocity that characterizes biopolitics and makes the governed visible through rights is absent in the plantation. Further, this lack of recognition means that the corpus that is the subject of sovereign power cannot form in any meaningful sense: the plantation is kept together purely through coercion, its inhabitants do not form a community; in fact, its inhabitants do not really exist as living beings. The plantation, in other words, is not a corpus, but a collection of things , which exist merely to produce value. If violence in the plantation seeks to generate value from inanimate things, violence in the camp seeks to reduce political subjects to inanimate things.
32. The slave is not desubjectivated by being deprived of the ability to speak, as the Muselmann in the camp is. Rather, the camp works to brutalize the inmate to catatonia and render her unfit to belong to a community (included through exclusion), and the slave is defined as that which cannot speak to start with and can never form a community anyway. Homo Sacer was a political subject who was then desubjectivated. The ontological positions are different and require us to think the position of sovereign power differently.
Why Do I Have to Kill You More than Once?
We don't do body counts (Tommy Franks, former US commander in Iraq).
33. In the madness of the colony, Mbembe suggests, the sovereign is unable to kill the governed once and for all, leading him to attack his victim over and over again, uttering the bewildered and enraged cry, 'how many times do I have to kill you?' (2001: 205). In this paper, I have sought to ask why the sovereign has to kill the native more than once, by suggesting that the originary lack of recognition that marks the colonial space as distinct disables the sovereign from knowing the governed, right down to the basic biopolitical framework of knowing when the governed is dead. If this is a biopolitics, it is one of ghosts and shadows, not of blood groups and birth rates. Rather, what we find in the colony is the vanishing point of sovereign power as a principle, evidenced in the empirical dissolution of the colonial state. I have pointed to two interrelated phenomena in the previous sections: the factical disintegration of sovereign power in the colony and the ontological non-existence of the native in the eyes of the colonial sovereign. These are two sides of the same coin because the non-recognition of the governed in the colony leads to a lack of knowledge on the part of the sovereign, which has two consequences. First, the biopolitical status of the colony is thrown into question, as access to the native's body and the knowledge predicated on that become precarious. Second, as the sovereign cannot know the governed, the former tends towards error and violence in dealing with the latter. Hence, the sovereign does not even know for certain that it has killed the governed, the ultimate mark of sovereign power. The sovereign, therefore, cannot know itself, its own existence, with certainty. Put otherwise, when the sovereign negates its relation with the governed, its own facticity is in question. In the colony, sovereignty cannot be taken for granted, proliferating error and violence. In the midst of this error and violence, the status of sovereign power is thrown into question, leading to what is referred to as state failure, which we can reinterpret as the never successful realization of sovereign power.
34. Biopolitics and sovereign power founded on it proceed from a recognition that makes bodies visible as rights-bearing human subjects. When this recognition is withheld, as in the colony, the possibility of knowing the governed is placed in question. The arbitrariness of the colonial sovereign is matched by his inability to ascertain whether or not his commands have been implemented. So we have the paradoxical figure of an extremity of sovereign power, 'a subjectivity freed of limits' (Mbembe, 2001: 189), at the same time that the efficacy of sovereign power is radically in question. The sovereign, because it does not recognize the governed, never knows when it has actually killed the latter, although, by the same criteria, the sovereign can kill the governed many times over. The present occupation of Iraq is characterized not by a state of exception, but a lack of recognition of governed by the sovereign, as the famous quote from Tommy Franks suggests. Four years after the invasion, there is no agreement on the basic biopolitical figure of the death count. As a result, U.S. forces neither know the enemy nor can be certain whether that enemy has been defeated or not. That does not inhibit, however, their exercise of violence; it may in fact incite it.
35. I have argued that the specifically modern rubrics of the state of exception, sovereign power and biopolitics  misrepresent the peculiar status of the colony and the native within it. This misrepresentation leads scholars to collapse the colony into the state of exception. As I have demonstrated, however, the colony and the state of exception have quite different ontologies of life, stemming from the different status of the human within them. The disintegration of sovereign authority in the colony testifies to these differences. Accounting for them will hopefully restore the specificity of the exception against the generalizations of it to disparate spaces of violence. Equally, we can link these different spaces of violence to the degraded status of sovereign power within them, rather than infer, from the state of exception, a totalizing biopolitical sovereign where there may be arbitrariness, terror, madness.
Arjun Chowdhury is a PhD candidate in the Political Science Department at the University of Minnesota (Twin Cities) and a MacArthur Fellow at the Interdisciplinary Center for the Study of Global Change. His dissertation analyzes the problem that 'weak states' and 'state failure' pose to global order.
For their help and comments, I would like to thank Bud Duvall, Mark Hoffman and Darrah McCracken; two anonymous reviewers; and the editor, Jane Mummery. For his willingness to discuss these themes for several years, I especially thank Govind Nayak.
. I acknowledge the heterogeneity of colonized spaces, where different approaches to law and sovereignty prevailed. The differences between colonialisms are also relevant, as are the arguments; such as Scott (1995); that point to the governmental nature of the colonial state. The term colony, however, is justified for two reasons. First, there are similarities across geographical regions and colonialisms that enable us to speak of Rwanda, India and Palestine as comparable. These similarities are as significant, if not more, than the differences. Second, even though law and governmentality were not absent from the colony, they were generally subordinated to violence and significantly, they could not stave off the collapse of the colonial state, even though, governmentality serves not the ruler, but to increase the power of the state. The colonial state, in a certain sense, marks a failure of governmentality that is worth examining, and which ties different colonial spaces together as qualitatively different from governmental spaces in Europe.
. For a critical overview of the 'new imperialism' arguments, see Varadarajan, 2006.
. The Muselmann is the camp inmate who is brutalized to the point of losing the ability to speak, and more profoundly, the ability to testify to the injury he or she has suffered (Agamben, 2002: 47-48).
. While I cannot interrogate it here, Mbembe's concept 'necropolitics' is a valuable beginning to this thinking. However, I do not think that necropolitics should be viewed as a correlate or opposite of biopolitics, much less a resurgence of archaic sovereignty (making die and letting live), as currently implied.
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