hand, the very rights of man that once made sense as the presupposition of the
rights of the citizen are now progressively separated from and used outside the con-
text of citizenship, for the sake of the supposed representation and protection of
a bare life that is more and more driven to the margins of the nation-states, ulti-
mately to be recodified into a new national identity. The contradictory character
of these processes is certainly one of the reasons for the failure of the attempts of
the various committees and organizations by which states, the League of Nations,
and, later, the United Nations confronted the problem of refugees and the protec-
tion of human rights, from the Bureau Nansen (1922) to the contemporary High
Commission for Refugees (1951), whose actions, according to statute, are to have
not a political but rather a “solely humanitarian and social” mission. What is es-
sential is that, every time refugees represent not individual cases but—as happens
more and more often today—a mass phenomenon, both these organizations and
individual states prove themselves, despite their solemn invocations of the “sacred
and inalienable” rights of man, absolutely incapable of resolving the problem and
even of confronting it adequately.
2.4. The separation between humanitarianism and politics that we are experi-
encing today is the extreme phase of the separation of the rights of man from the
rights of the citizen. In the final analysis, however, humanitarian organizations—
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which today are more and more supported by international commissions—can
only grasp human life in the figure of bare or sacred life, and therefore, despite
themselves, maintain a secret solidarity with the very powers they ought to fight.
It takes only a glance at the recent publicity campaigns to gather funds for refu-
gees from Rwanda to realize that here human life is exclusively considered (and
there are certainly good reasons for this) as sacred life—which is to say, as life that
can be killed but not sacrificed—and that only as such is it made into the object
of aid and protection. The “imploring eyes” of the Rwandan child, whose pho-
tograph is shown to obtain money but who “is now becoming more and more
difficult to find alive,” may well be the most telling contemporary cipher of the
bare life that humanitarian organizations, in perfect symmetry with state power,
need. A humanitarianism separated from politics cannot fail to reproduce the
isolation of sacred life at the basis of sovereignty, and the camp—which is to say,
the pure space of exception—is the biopolitical paradigm that it cannot master.
The concept of the refugee (and the figure of life that this concept represents)
must be resolutely separated from the concept of the rights of man, and we
must seriously consider Arendt’s claim that the fates of human rights and the
nation-state are bound together such that the decline and crisis of the one neces-
sarily implies the end of the other. The refugee must be considered for what he is:
nothing less than a limit concept that radically calls into question the fundamen-
tal categories of the nation-state, from the birth-nation to the man-citizen link,
and that thereby makes it possible to clear the way for a long-overdue renewal of
categories in the service of a politics in which bare life is no longer separated and
excepted, either in the state order or in the figure of human rights.
א The pamphlet Make More of an Effort, Frenchmen, if You Want to Be Republicans,
read by the libertine Dolmancé in the Marquis de Sade’s Philosophy in the Boudoir, is the first and perhaps most radical biopolitical manifesto of modernity. At the very moment
in which the revolution makes birth—which is to say, bare life—into the foundation of
sovereignty and rights, Sade stages (in his entire work, and in particular in 120 Days of Sodom) the theatrum politicum as a theater of bare life, in which the very physiological life of bodies appears, through sexuality, as the pure political element. But the political meaning of Sade’s work is nowhere as explicit as it is in this pamphlet, in which the maisons in which every citizen can publicly summon any other citizen in order to compel him to
satisfy his own needs emerge as the political realm par excellence. Not only philosophy
(Lefort, Écrire, pp. 100–101) but also and above all politics is sifted through the boudoir.
Indeed, in Dolmancé’s project, the boudoir fully takes the place of the cité, in a dimension in which the public and the private, political existence and bare life change places.
The growing importance of sadomasochism in modernity has its root in this ex-
change. Sadomasochism is precisely the technique of sexuality by which the bare life of a
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sexual partner is brought to light. Not only does Sade consciously invoke the analogy with sovereign power (“there is no man,” he writes, “who does not want to be a despot when
he has an erection’’), but we also find here the symmetry between homo sacer and sovereign, in the complicity that ties the masochist to the sadist, the victim to the executioner.
Sade’s modernity does not consist in his having foreseen the unpolitical primacy of
sexuality in our unpolitical age. On the contrary, Sade is as contemporary as he is be-
cause of his incomparable presentation of the absolutely political (that is, “biopolitical”) meaning of sexuality and physiological life itself. Like the concentration camps of our
century, the totalitarian character of the organization of life in Silling’s castle—with its meticulous regulations that do not spare any aspect of physiological life (not even the
digestive function, which is obsessively codified and publicized)—has its root in the fact that what is proposed here for the first time is a normal and collective (and hence political) organization of human life founded solely on bare life.
3
Life That Does Not
Deserve to Live
3.1. In 1920, Felix Meiner, one of the most distinguished German pub-
lishers of philosophical works, released a blue-gray plaquette bearing
the tide Authorization for the Annihilation of Life Unworthy of Being Lived ( Die Freigabe der Vernichtung lebensunwerten Lebens) . The authors were Karl Binding, a highly respected specialist of penal law (an insert attached to the jacket cover
at the last minute informed readers that since the doct. iur. et phil. K. B. had
passed away during the printing of the work, the publication was to be consid-
ered as “his last act for the good of humanity”), and Alfred Hoche, a professor of
medicine whose interest lay in questions concerning the ethics of his profession.
The book warrants our attention for two reasons. The first is that in order
to explain the unpunishability of suicide, Binding is led to conceive of suicide
as the expression of man’s sovereignty over his own existence. Since suicide, he
argues, 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, “the law has no other option than to consider living man as sovereign over
his own existence [ als Souverän über sein Dasein]” ( Die Freigabe, p. 14). Like the sovereign decision on the state of exception, the sovereignty of the living being
over himself takes the form of a threshold of indiscernibi
lity between exteriority
and interiority, which the juridical order can therefore neither exclude nor in-
clude, neither forbid nor permit: “The juridical order,” Binding writes, “tolerates
the act despite the actual consequences that it must itself suffer on account of it.
It does not claim to have the power to forbid it” (ibid.).
Yet from this particular sovereignty of man over his own existence, Binding
derives—and this is the second, and more urgent, reason for our interest in this
book—the necessity of authorizing “the annihilation of life unworthy of being
lived.” The fact that Binding uses this disquieting expression to designate merely
the problem of the lawfulness of euthanasia should not lead one to underesti-
mate the novelty and decisive importance of the concept that here makes its first
appearance on the European juridical scene: life that does not deserve to be lived
113
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HOMO SACER I
(or to live, as the German expression lebensunwerten Leben also quite literally
suggests), along with its implicit and more familiar correlate—life that deserves
to be lived (or to live). The fundamental biopolitical structure of modernity—
the decision on the value (or nonvalue) of life as such—therefore finds its first
juridical articulation in a well-intentioned pamphlet in favor of euthanasia.
א It is not surprising that Binding’s essay aroused the curiosity of Schmitt, who
cites it in his Theorie des Partisanen in the context of a critique of the introduction of the concept of value into law. “He who determines a value,” Schmitt writes, “eo ipso always fixes a nonvalue. The sense of this determination of a nonvalue is the annihilation of the nonvalue” (p. 8o, n. 49). Schmitt approximates Binding’s theories concerning life that
does not deserve to live to Heinrich Rickert’s idea that “negation is the criterion by which to establish whether something belongs to the sphere of value” and that “the true act of
evaluation is negation.” Here Schmitt does not seem to notice that the logic of value he
is criticizing resembles his own theory of sovereignty, according to which the true life of the rule is the exception.
3.2. For Binding the concept of “life unworthy of being lived” is essential,
since it allows him to find an answer to the juridical question he wishes to pose:
“Must the unpunishability of the killing of life remain limited to suicide, as it is
in contemporary law (with the exception of the state of emergency), or must it
be extended to the killing of third parties?” According to Binding, the solution
depends on the answer to the following question: “Are there human lives that
have so lost the quality of legal good that their very existence no longer has any
value, either for the person leading such a life or for society?” Binding continues:
Whoever poses this question seriously must, with bitterness, notice the irrespon-
sibility with which we usually treat the lives that are most full of value [ wertvollsten Leben], as well as with what—often completely useless—care, patience, and energy we attempt, on the other hand, to keep in existence lives that are no longer
worthy of being lived, to the point at which nature herself, often with cruel
belatedness, takes away any possibility of their continuation. Imagine a battle
camp covered with thousands of young bodies without life, or a mine where a
catastrophe has killed hundreds of industrious workers, and at the same time
picture our institutes for the mentally impaired [ Idioteninstitut] and the treat-ments they lavish on their patients—for then one cannot help being shaken up
by this sinister contrast between the sacrifice of the dearest human good and,
on the other hand, the enormous care for existences that not only are devoid of
value [ wertlosen] but even ought to be valued negatively. ( Die Freigabe, pp. 27–29) The concept of “life devoid of value” (or “life unworthy of being lived”) applies
first of all to individuals who must be considered as “incurably lost” following an
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illness or an accident and who, fully conscious of their condition, desire “redemp-
tion” (Binding uses the term Erlösung, which belongs to religious language and signifies, among other things, redemption) and have somehow communicated
this desire. More problematic is the condition of the second group, comprising
“incurable idiots, either those born as such or those—for example, those who
suffer from progressive paralysis—who have become such in the last phase of
their life.” “These men,” Binding writes, “have neither the will to live nor the will
to die. On the one hand, there is no ascertainable consent to die; on the other
hand, their killing does not infringe upon any will to live that must be overcome.
Their life is absolutely without purpose, but they do not find it to be intolerable.”
Even in this case, Binding sees no reason, “be it juridical, social, or religious, not
to authorize the killing of these men, who are nothing but the frightening reverse
image [ Gegenbild ] of authentic humanity” (ibid., pp. 31–32). As to the problem of who is competent to authorize anni hilation, Binding proposes that the request
for the initiative be made by the ill person himself (when he is capable of it) or
by a doctor or a close relative, and that the final decision fall to a state committee
composed of a doctor, a psychiatrist, and a jurist.
3.3. It is not our intention here to take a position on the difficult ethical prob-
lem of euthanasia, which still today, in certain countries, occupies a substantial
position in medical debates and provokes disagreement. Nor are we concerned
with the radicality with which Binding declares himself in favor of the general
admissibility of euthanasia. More interesting for our inquiry is the fact that the
sovereignty of the living man over his own life has its immediate counterpart
in the determination of a threshold beyond which life ceases to have any jurid-
ical value and can, therefore, be killed without the commission of a homicide.
The new juridical category of “life devoid of value” (or “life unworthy of being
lived”) corresponds exactly—even if in an apparently different direction—-to
the bare life of homo sacer and can easily be extended beyond the limits imagined by Binding.
It is as if every valorization and every “politicization” of life (which, after all,
is implicit in the sovereignty of the individual over his own existence) necessarily
implies a new decision concerning the threshold beyond which life ceases to
be politically relevant, becomes only “sacred life,” and can as such be elimi-
nated without punishment. Every society sets this limit; every society—even the
most modern—decides who its “sacred men” will be. It is even possible that this
limit, on which the politicization and the exceptio of natural life in the juridical order of the state depends, has done nothing but extend itself in the history of
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the West and has now—in the new biopolitical horizon of states with national
sovereignty—moved inside every human life and every citizen. Bare life is no
longer confined to a particular place or a definite category. It now dwells in the
biological body of every living being.
3.4. During the physicians
’ trial at Nuremberg, a witness, Dr. Fritz Men-
necke, related that he had heard Drs. Hevelemann, Bahnen, and Brack com-
municate in a confidential meeting in Berlin in February 1940 that the Reich
had just issued measures authorizing “the elimination of life unworthy of being
lived” with special reference to the incurable mentally ill. The information was
not quite exact, since for various reasons Hitler preferred not to give an explicit
legal form to his euthanasia program. Yet it is certain that the reappearance of
the formula coined by Binding to give juridical credence to the so-called “mercy
killing” or “death by grace” ( Gnadentod, according to a euphemism common among the regime’s health officials) coincides with a decisive development in
National Socialism’s biopolitics.
There is no reason to doubt that the “humanitarian” considerations that led
Hitler and Himmler to elaborate a euthanasia program immediately after their
rise to power were in good faith, just as Binding and Hoche, from their own
point of view, acted in good faith in proposing the concept of “life unworthy
of being lived.” For a variety of reasons, including foreseen opposition from
Christian organizations, the program barely went into effect, and only at the
start of 1940 did Hitler decide that it could no longer be delayed. The Euthanasia
Program for the Incurably Ill ( Euthanasie-Programm für unheilbaren Kranke) was therefore put into practice in conditions—including the war economy and the
increasing growth of concentration camps for Jews and other undesirables—that
favored misuse and mistakes. Nevertheless, the transformation of the program,
over the course of the fifteen months it lasted (Hitler ended it in August 1941
because of growing protest on the part of bishops and relatives), from a theo-
retically humanitarian program into a work of mass extermination did not in
any way depend simply on circumstance. The name of Grafeneck, the town in
Württemberg that was the home of one of the main centers, has remained sadly
linked to this matter, but analogous institutions existed in Hadamer (Hesse),
Hartheim (near Linz), and other towns in the Reich. Testimony given by de-
fendants and witnesses at the Nuremberg trials give us sufficiently precise in-
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