Chapter 5. 1946–1949: Emphýlios
A riveting and disturbing question shadows Agamben's Homo Sacer: Why does the Foucauldian formulation of biopolitics and governmentality not extend to the concentration camp? Why does Foucault look at the prison, the school, and the hospital, but not the place of containment that holds not dear but sacred life, in its barest form: life that does not deserve to be appropriated by the state (and thus executed) or the church (and thus sacrificed), but can be killed with impunity? One could extend this question even further, as Jehanne Gheith has done, to ask: Why, in the context of the concentration camp, do the camps of the Reich (and the Holocaust) “preoccupy the Western imagination and why does the Gulag [or so many other camps, I would add] barely inhabit it?” (2007: 159).
A central question is thus raised about the liberal state in a time of crisis or a state of emergency (such as Greece between 1936 and 1974): How does human life get constituted and instituted as existing as if in a prelegal space (in the Hobbesian state of nature), while being securely within the parameters of the law? In other words, what is the rupture in the law, the fragmentation in its very constitution that allows for the suspension of life during a case of emergency? Agamben locates this in the “happening” (in a sense, in the “Becoming”) of the concentration camp, but I would like to argue that it takes place primarily in the space of the rehabilitation camp.
Agamben invokes the moment of non-Kantian ethics in the gesture made by Karl Binding and Alfred Hoche in a pamphlet entitled Authorization for the Annihilation of Life Unworthy of Being Lived, published in Leipzig in 1920 by the distinguished publisher Felix Meiner. (Binding was a specialist in penal law and Hoche a professor of medicine interested in medical ethics.) Binding and Hoche separate the act of suicide from the discourse of ethics and place it within a legal discourse of rights. Binding argues that suicide is the expression of the individual's sovereignty over his own existence. Agamben writes, following Binding, “suicide… cannot be understood as a crime (for example, as a violation of a duty toward oneself) yet also cannot be considered as a matter of indifference to the law” (1998: 136). Indeed, “the law has no other option than to consider living man as sovereign over his own existence” (ibid.). It is only when human sovereignty can be handed to the citizen in the specter of the law that this sovereignty can be taken away by the law. It is only through the annunciation of sovereignty, this solipsistic representation, that sovereignty and its annunciation can be constituted as existing, as Being, that they can then be questioned and become political objects of the legal state. Only when the citizen can announce, in the context of the law, “I am a legal subject” can her sovereignty over herself-as-being be questioned by the law and retained or revoked. It was decided in the Weimar Republic that suicide was not against the law.