The Omnibus Homo Sacer
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of what is in potentiality by what is in actuality and what is similar to it. . . . For
he who possesses science [in potentiality] becomes someone who contemplates
in actuality, and either this is not an alteration—since here there is the gift of
the self to itself and to actuality [ epidosis eis eauto]—or this is an alteration of a different kind. ( De anima, 417b, 2–16)
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In thus describing the most authentic nature of potentiality, Aristotle actu-
ally bequeathed the paradigm of sovereignty to Western philosophy. For the sov-
ereign ban, which applies to the exception in no longer applying, corresponds
to the structure of potentiality, which maintains itself in relation to actuality
precisely through its ability not to be. Potentiality (in its double appearance as
potentiality to and as potentiality not to) is that through which Being founds
itself sovereignly, which is to say, without anything preceding or determining it ( superiorem non recognoscens) other than its own ability not to be. And an act is sovereign when it realizes itself by simply taking away its own potentiality not to
be, letting itself be, giving itself to itself.
Hence the constitutive ambiguity of the Aristotelian theory of dynamist
energeia: if it is never clear, to a reader freed from the prejudices of tradition, whether Book Theta of the Metaphysics in fact gives primacy to actuality or to
potentiality, this is not because of a certain indecisiveness or, worse, contra-
diction in the philosopher’s thought but because potentiality and actuality are
simply the two faces of the sovereign self-grounding of Being. Sovereignty is
always double because Being, as potentiality, suspends itself, maintaining itself
in a relation of ban (or abandonment) with itself in order to realize itself as abso-
lute actuality (which thus presupposes nothing other than its own potentiality).
At the limit, pure potentiality and pure actuality are indistinguishable, and the
sovereign is precisely this zone of indistinction. (In Aristotle’s Metaphysics, this corresponds to the figure of the “thinking of thinking,” that is, to a thinking that
in actuality thinks its own potentiality to think.)
This is why it is so hard to think both a “constitution of potentiality” en-
tirely freed from the principle of sovereignty and a constituting power that has
definitively broken the ban binding it to constituted power. That constituting
power never exhausts itself in constituted power is not enough: sovereign power
can also, as such, maintain itself indefinitely, without ever passing over into
actuality. (The troublemaker is precisely the one who tries to force sovereign
power to translate itself into actuality.) Instead one must think the existence of
potentiality without any relation to Being in the form of actuality—not even
in the extreme form of the ban and the potentiality not to be, and of actuality
as the fulfillment and manifestation of potentiality—and think the existence of
potentiality even without any relation to being in the form of the gift of the self
and of letting be. 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. Yet it is this very task that many, today, refuse to assume at
any cost.
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א It has already been noted that a principle of potentiality is inherent in every
definition of sovereignty. In this sense, Gérard Mairet observed that the sovereign state
is founded on an “ideology of potentiality” that consists in “leading the two elements of
every power back to a unity . . . the principle of potentiality and the form of its exercise”
( Histoire, p. 289). The central idea here is that “potentiality already exists before it is exercised, and that obedience precedes the institutions that make it possible” (ibid., p. 311).
That this ideology truly has a mythological character is suggested by the same author: “It is a question of a real myth whose secrets we still do not know, but which constitutes,
perhaps, the secret of every power.” It is the structure of this mystery [ arcano] that we have undertaken to bring to light in the figure of abandonment and the “potentiality
not to.” But here we run up against not a mythologeme in the strict sense but, rather,
the ontological root of every political power. (Potentiality and actuality are, for Aristotle, first of all categories of being, two ways “in which Being is said.”)
In modern thought, there are rare but significant attempts to conceive of being be-
yond the principle of sovereignty. In the Philosophy of Revelation, Schelling thus thinks an absolute entity that presupposes no potentiality and never exists per transitum de
potentia ad actum. In the late Nietzsche, the eternal return of the same gives form to the impossibility of distinguishing between potentiality and actuality, even as the Amor fati gives shape to the impossibility of distinguishing between contingency and necessity.
In the Heideggerian idea of abandonment and the Ereignis, it seems that Being itself is likewise discharged and divested of all sovereignty. But the strongest objection against
the principle of sovereignty is contained in Melville’s Bartleby, the scrivener who, with
his “I would prefer not to,” resists every possibility of deciding between potentiality
and the potentiality not to. These figures push the aporia of sovereignty to the limit but still do not completely free themselves from its ban. They show that the dissolution of
the ban, like the cutting of the Gordian knot, resembles less the solution of a logical or mathematical problem than the solution of an enigma. Here the metaphysical aporia
shows its political nature.
4
Form of Law
4.1. In the legend “Before the Law,” Kafka represented the structure of
the sovereign ban in an exemplary abbreviation.
Nothing—and certainly not the refusal of the doorkeeper—prevents the
man from the country from passing through the door of the Law if not the fact
that this door is already open and that the Law prescribes nothing. The two
most recent interpreters of the legend, Jacques Derrida and Massimo Cacciari,
have both insisted on this point, if in different ways. “The Law,” Derrida writes,
“keeps itself [ se garde] without keeping itself, kept [ gardée] by a doorkeeper who keeps nothing, the door remaining open and open onto nothing” (“Préjugés,”
p. 356). And Cacciari, even more decisively, underlines the fact that the power of
the Law lies precisely in the impossibility of entering into what is already open,
of reaching the place where one already is: “How can we hope to ‘open’ if the
door is already open? How can we hope to enter-the-open [ entrare-l’aperto]? In the open, there is, things are there, one does not enter there. . . . We can enter
only there where we can open. The already-open [ il già-aperto] immobilizes. The man from the country cannot enter, because entering into what is already open
is ontologically impossible” ( Icone, p. 69).
Seen from this perspective, Kafka’s legend presents the pure form in which
law affirms itself with the greatest force precisely at the point in which it no lon-
ger prescribes anything—which is to say, as pure ban. The man from the country
is delivered over to the potentiality of law because law demands nothing of him
and commands nothing other than its own openness. According to the schema
of the sovereign exception, law applies to him in no longer applying, and holds
him in its ban in abandoning him outside itself. The open door destined only for
him includes him in excluding him and excludes him in including him. And this
is precisely the summit and the root of every law. When the priest in The Trial
summarizes the essence of the court in the formula “The court wants nothing
from you. It receives you when you come, it lets you go when you go,” it is the
originary structure of the nomos that he states.
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א In an analogous fashion, language also holds man in its ban insofar as man, as a
speaking being, has always already entered into language without noticing it. Everything
that is presupposed for there to be language (in the forms of something nonlinguistic,
something ineffable, etc.) is nothing other than a presupposition of language that is
maintained as such in relation to language precisely insofar as it is excluded from lan-
guage. Stéphane Mallarmé expressed this self-presuppositional nature of language when
he wrote, with a Hegelian formula, “The logos is a principle that operates through the
negation of every principle.” As the pure form of relation, language (like the sovereign ban) always already presupposes itself in the figure of something nonrelational, and it is not possible either to enter into relation or to move out of relation with what belongs
to the form of relation itself. This means not that the nonlinguistic is inaccessible to
man but simply that man can never reach it in the form of a nonrelational and ineffable
presupposition, since the nonlinguistic is only ever to be found in language itself. (In the words of Benjamin, only the “crystal-pure elimination of the unsayable in language” can
lead to “what withholds itself from speech” [ Briefe, p. 127].)
4.2. But does this interpretation of the structure of law truly exhaust Kafka’s
intention? In a letter to Benjamin dated September 20, 1934, Gerschom Scholem
defines the relation to law described in Kafka’s Trial as “the Nothing of Reve-
lation” ( Nichts der Offenbarung), intending this expression to name “a stage in which revelation does not signify [ bedeutet], yet still affirms itself by the fact that it is in force. Where the wealth of significance is gone and what appears,
reduced, so to speak, to the zero point of its own content, still does not disap-
pear (and Revelation is something that appears), there the Nothing appears”
(Benjamin and Scholem, Briefwechsel, p. 163). According to Scholem, a law that finds itself in such a condition is not absent but rather appears in the form of its
unrealizability. “The students of whom you speak,” he objects to his friend, “are
not students who have lost the Scripture . . . but students who cannot decipher
it” (ibid., p. 147).
Being in force without significance ( Geltung ohne Bedeutung): nothing better describes the ban that our age cannot master than Scholem’s formula for the
status of law in Kafka’s novel. What, after all, is the structure of the sovereign
ban if not that of a law that is in force but does not signify? Everywhere on earth men live today in the ban of a law and a tradition that are maintained solely
as the “zero point” of their own content, and that include men within them in
the form of a pure relation of abandonment. All societies and all cultures today
{it does not matter whether they are democratic or totalitarian, conservative or
progressive) have entered into a legitimation crisis in which law (we mean by this
term the entire text of tradition in its regulative form, whether the Jewish Torah
or the Islamic Shariah, Christian dogma or the profane nomos) is in force as the
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HOMO SACER I
pure “Nothing of Revelation.” But this is precisely the structure of the sovereign
relation, and the nihilism in which we are living is, from this perspective, noth-
ing other than the coming to light of this relation as such.
4.3. In Kant the pure form of law as “being in force without significance”
appears for the first time in modernity. What Kant calls “the simple form of law”
( die bloße Form des Gesetzes) in the Critique of Practical Reason is in fact a law reduced to the zero point of its significance, which is, nevertheless, in force as
such ( Kritik der praktischen Vernunft, p. 28). “Now if we abstract every content, that is, every object of the will (as determining motive) from a law,” he writes,
“there is nothing left but the simple form of a universal legislation” (ibid., p. 27).
A pure will, thus determined only through such a form of law, is “neither free
nor unfree,” exactly like Kafka’s man from the country.
The limit and also the strength of the Kantian ethics lie precisely in having
left the form of law in force as an empty principle. This being in force without
significance in the sphere of ethics corresponds, in the sphere of knowledge, to
the transcendental object. The transcendental object is, after all, not a real object
but “merely the idea of relation” ( bloß eine Idee des Verhältnisses) that simply expresses the fact of thinking’s being in relation with an absolutely indeterminate
thought ( Kants opus postuum, p. 671).
But what is such a “form of law”? And how, first of all, is one to conduct one-
self before such a “form of law,” once the will is not determined by any particular
content? What is the form of life, that is, that corresponds to the form of law?
Does the moral law not become something like an “inscrutable faculty”? Kant
gives the name “respect” ( Achtung, reverential attention) to the condition of one who finds himself living under a law that is in force without signifying, and that
thus neither prescribes nor forbids any determinate end: “The motivation that
a man can have, before a certain end is proposed to him, clearly can be nothing
other than the law itself through the respect that it inspires (without determin-
ing what goals it is possible to have or reach by obeying it). For once the content
of free will is eliminated, the law is the only thing left in relation to the formal
element of the free will” (“Über den Gemeinspruch,” p. 282).
It is truly astounding how Kant, almost two centuries ago and under the
heading of a sublime “moral feeling,” was able to describe the very condition that
was to become familiar to the mass societies and great totalitarian states of our
time. For life under a law that is in force without signifying resembles life in the
state of exception, in which the most innocent gesture or the smallest forgetful-
ness can have most extreme consequences. And it is exactly this kind of life that
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Kafka describes, in which law is all the more pervasive for its total lack of content,
and in which a distracted knock on the door can mark the start of uncontrollable
trials. Just as for Kant the purely formal character of the moral law founds its
claim of universal practical applicability in every circumstance, so in Kafka’s vil-
lage the empty potentiality of law is so much in force as to become indistinguish-
able from life. The existence and the very body of Joseph K. ultimately coincide
with the Trial; they become the Trial. Benjami
n sees this clearly when he writes, objecting to Scholem’s notion of a being in force without significance, that a law
that has lost its content ceases to exist and becomes indistinguishable from life:
“Whether the students have lost the Scripture or cannot decipher it in the end
amounts to the same thing, since a Scripture without its keys is not Scripture but
life, the life that is lived in the village at the foot of the hill on which the castle
stands” (Benjamin and Scholem, Briefwechsel, p. 155). And this provokes Scholem
(who does not notice that his friend has grasped the difference perfectly well) to
insist that he cannot agree that “it is the same thing whether the students have
lost their Scripture or cannot decipher it, and it even seems to me that this is the
greatest mistake that can be made. I refer to precisely the difference between these
two stages when I speak of a ‘Nothing of Revelation’” (ibid., p. 163).
If, following our analyses, we see in the impossibility of distinguishing law
from life—that is, in the life lived in the village at the foot of the castle—the essen-
tial character of the state of exception, then two different interpretations confront
each other here: on the one hand, that of Scholem, which sees in this life the main-
tenance of the pure form of law beyond its own content—a being in force without
significance—and, on the other hand, that of Benjamin, for which the state of
exception turned into rule signals law’s fulfillment and its becoming indistinguish-
able from the life over which it ought to rule. Confronted with the imperfect
nihilism that would let the Nothing subsist indefinitely in the form of a being in
force without significance, Benjamin proposes a messianic nihilism that nullifies
even the Nothing and lets no form of law remain in force beyond its own content.
Whatever their exact meaning and whatever their pertinence to the interpre-
tation of Kafka’s text, it is certain that every inquiry into the relation between life
and law today must confront these two positions.
א The experience of being in force without significance lies at the basis of a current
of contemporary thought that is not irrelevant here. The prestige of deconstruction in our time lies precisely in its having conceived of the entire text of tradition as being in force without significance, a being in force whose strength lies essentially in its undecidabiliry and in having shown that such a being in force is, like the door of the Law in Kafka’s parable, absolutely impassable. But it is precisely concerning the sense of this being in force