The Borders of Agamben
Giorgio Agamben’s (1998) analysis takes, as a starting point, the marginal figure of ‘homo sacer’. Homo sacer was originally a concept in Roman law, designating a liminal status simultaneously inside and outside the polity. In Agamben’s terms, homo sacer is someone who may be ‘killed but not sacrificed’. In its oldest guise, homo sacer is a form of punishment, and Agamben analyses this social figure as a way of splitting the social and biological nature of the individual. Homo sacer is ‘reduced’ to ‘bare life’, deprived of social attributes: not defended by the state, not included in social circulations (the market), and of no religious value. Agamben argues that this social figure is immanent in liberal politics and, as such, inseparable from sovereignty.
Agamben presents homo sacer as a prism to disclose the inherent dilemmas and contradictions in liberalism. Homo sacer exists both inside and outside society, and thereby mirrors how sovereignty relates to the limits of law and territory. By the ‘inclusive exclusion’ of homo sacer, the state creates an ‘exception’. This exception is both a threshold between the inside and outside and a defining entity for the law and the state (Agamben 1998: esp 18).
How does homo sacer translate to modern societies? A succession of metaphors muddles the answers. It is clear that homo sacer constitutes a liminal figure. Homo sacer is both included and excluded. But what does that mean? The liberal tradition is famous for grappling with the problem of jurisdiction: what goes on ‘beyond the pale’ (the end of (national) territory) is of no interest to the sovereign (Brown 2010). This dilemma once provoked Carl Schmitt to highlight the issue of ‘enemies’ and ‘foreigners’ as an intrinsic part of liberal jurisprudence. However, it is worth noting that Schmitt’s solution was not to let the outside, the exception, linger in a twilight zone of indistinction, but to subsume the outside under the inside, the exception under the rule (Schmitt 1996). Agamben discusses these tensions in Schmitt’s conceptualizations extensively (1998, 2005). The point here is to address the messy and perhaps misleading connotations of homo sacer. Is homo sacer an enemy, or something else?
The concept of homo sacer has gained considerable popularity. It is commonly used as a (more or less) shorthand reference to a politics of ‘abandonment’ and other forms of indifference equivalent to the land beyond the pale (Diken and Bagge Laustsen 2005; Andrijasevic 2010; Bhartia 2010; Cornelisse 2010; De Genova 2010; Kjsrre 2010; Stenum 2010). In this view, migrants are treated as enemies and abandoned. American anthropologist Nicholas De Genova (2010), who has played an important role in popularizing Agamben in migration studies, uses the case of Elvira Arellano as a starting point for his discussion of ‘deportation regimes’. Arellano had migrated illegally from Mexico to the United States. After being apprehended a second time for staying illegally on US soil, she took refuge in a church in Chicago. There, in her self-inflicted curfew, she provided a face for the many illegal workers and became, for a period, one ofthe most talked about persons in the United States. De Genova does not hesitate to classify Arellano’s situation within the walls of the church as ‘bare life’ (De Genova 2010). Dutch sociologist Willem Schinkel (2010) cites another case. A prisoner at the Guantanamo Base was force fed after a hunger strike. Schinkel uses this example to illustrate a form of intermediary status, between insiders and outsiders. According to Schinkel, the prisoner is ‘reduced’ to nakedness, to ‘bare life’. In the same vein Prem Kumar Rajaram and Carl Grundy-Warr (2004) label detained irregular migrants in Australia, Malaysia, and Thailand as homo sacer.
Though these examples reveal troubling levels of disregard for fellow human beings, one must ask whether it is accurate to apply the term homo sacer to them all. No matter how grotesque their treatment, in each case there is actually someone looking after them. Arellano was cared for by the Church, and the prisoner at Guantanamo, cited by Schinkel, was saved from dying.
Who were homini sacri in the Roman penal code? Were they slaves? In the United States and parts of Europe irregular migrants seem, to some extent, to be at least tolerated in the labour market (Calavita 2005; Anderson and Ruhs 2010). This is not the case in Norway, but even so there is no mention of exploitation of labour in Agamben’s texts. What exactly does it mean to be sacrificed today? Can anyone at all be sacrificed? Sacrifice is obviously a metaphor, but for what?
Another possibility is that homo sacer is a person in exile. Thomsen also portrays exile as an earlier form of ostracism from Greece (Thomsen 1972), but exile is conspicuously absent in Agamben’s analysis. Neither is it obvious to relate homo sacer to mediaeval forms of expulsion. Agamben mentions the figure of the friedlose, known in German law in the Middle Ages, but this is mentioned as a separate institution (Agamben 2005). Homo sacer may serve as a metaphor, but for what?
Although the politics of expulsion produces sickness and misery, understanding the treatment of irregular migrants requires more than a simple usage of metaphors and notions of abandonment. As systems of control ‘de-compose’ and borders shift, it is necessary to distance our understanding from Agamben’s terminology and its reliance on insiders and outsiders. This chapter suggests that irregular migrants, in this case refused asylum seekers, are not simply outsiders or ‘enemies’. Yet, to conceptualize them as insiders would be equally misleading. Rather, the politics regarding asylum in Norway are shaped in the image of the relationship between the state and the citizen, without the bonds and attachments that characterize biopolitics. The key to understanding this political field is to recognize that we are dealing with the emergence of a political field that transgresses the vision from the world order based on nation states, with insides and outsides.
-  For a more elaborate discussion of Agamben’s position regarding refugees, see Rajaram andGrundy-Warr (2004).
-  This strategy, it needs to be mentioned, contributed to the legitimacy of the Third Reich (Muller2003).
-  Schinkel must be partly excused for making this conceptual leap, as Agamben himself discussesGuantanamo as a present-day expression of the state of exception (Agamben 2005).
-  Especially in the US, where it seems that irregular migrants are welcomed as a means to pressdown wages and widely tolerated as labour.