that would be universally applicable, because the brain is the one organ that can’t
be transplanted” (quoted in Lamb, Death, p. 75). According to any good logic, this would imply that just as heart failure no longer furnishes a valid criterion for
death once life-support technology and transplantation are discovered, so brain
death would, hypothetically speaking, cease to be death on the day on which the
first brain transplant were performed. Death, in this way, becomes an epiphe-
nomenon of transplant technology.
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A perfect example of this wavering is the case of Karen Quinlan, the Amer-
ican girl who went into deep coma and was kept alive for years by means of
artificial respiration and nutrition. On the request of her parents, a court finally
allowed her artificial respiration to be interrupted on the grounds that the girl
was to be considered as already dead. At that point Karen, while remaining in
coma, began to breathe naturally and “survived” in a state of artificial nutrition
until 1985, the year of her natural “death.” It is clear that Karen Quinlan’s body
had, in fact, entered a zone of indetermination in which the words “life” and
“death’’ had lost their meaning, and which, at least in this sense, is not unlike the
space of exception inhabited by bare life.
6.4. This means that today—as is implicit in Peter Medawar’s observation
that “in biology, discussions on the meaning of the words ‘life’ and ‘death’ are
signs of a low level conversation”—life and death are not properly scientific
concepts but rather political concepts, which as such acquire a political meaning
precisely only through a decision. The “frightful and incessantly deferred bor-
ders” of which Mollaret and Goulon spoke are moving borders because they are
biopolitical borders, and the fact that today a vast process is under way in which what is at stake is precisely the redefinition of these borders indicates that the
exercise of sovereign power now passes through them more than ever and, once
again, cuts across the medical and biological sciences.
In a brilliant article, W. Gaylin evokes the specter of bodies, which he calls
“neomorts,” which would have the legal status of corpses but would maintain
some of the characteristics of life for the sake of possible future transplants:
“They would be warm, pulsating and urinating” (“Harvesting,” p. 30). In an
opposite camp, the body kept alive by life-support systems has been defined by
a supporter of brain death as a foux vivant on which it is permitted to intervene without any reservations (Dagognet, La maîtrise, p. 189).
The hospital room in which the neomort, the overcomatose person, and the
foux vivant waver between life and death delimits a space of exception in which a purely bare life, entirely controlled by man and his technology, appears for
the first time. And since it is precisely a question not of a natural life but of an
extreme embodiment of homo sacer (the comatose person has been defined as an
intermediary being between man and an animal), what is at stake is, once again,
the definition of a life that may be killed without the commission of homicide
(and that is, like homo sacer, “unsacrificeable,” in the sense that it obviously could not be put to death following a death sentence).
This is why it is not surprising that some of the most ardent partisans of
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brain death and modern biopolitics propose that the state should decide on the
moment of death, removing all obstacles to intervention on the faux vivant.
We must therefore define the moment of the end and not rely on the rigidification
of the corpse, as was done at one point, or, even less, on signs of putrefaction, but
rather simply keep to brain death. . . . What follows from this is the possibility
of intervening on the faux vivant. Only the State can do this and must do this.
. . . Organisms belong to the public power: the body is nationalized [ les organ-
ismes appartiennent à la puissance publique: on nationalise le corps] . ( Dagognet, La maîtrise, p. 189)
Neither Reiter nor Verschuer had ever gone so far along the path of the
politicization of bare life. But (and this is a clear sign that biopolitics has passed
beyond a new threshold) in modern democracies it is possible to state in public
what the Nazi biopoliticians did not dare to say.
7
The Camp as the ‘Nomos’
of the Modern
7.1. What happened in the camps so exceeds the juridical concept of crime
that the specific juridico-political structure in which those events
took place is often simply omitted from consideration. The camp is merely the
place in which the most absolute conditio inhumana that has ever existed on
earth was realized: this is what counts in the last analysis, for the victims as for
those who come after. Here we will deliberately follow an inverse line of inquiry.
Instead of deducing the definition of the camp from the events that took place
there, we will ask: What is a camp, what is its juridico-political structure, that
such events could take place there? This will lead us to regard the camp not as a
historical fact and an anomaly belonging to the past (even if still verifiable) but
in some way as the hidden matrix and nomos of the political space in which we
are still living.
Historians debate whether the first camps to appear were the campos de con-
centraciones created by the Spanish in Cuba in 1896 to suppress the popular in-
surrection of the colony, or the “concentration camps”* into which the English
herded the Boers toward the start of the century. What matters here is that in
both cases, a state of emergency linked to a colonial war is extended to an entire
civil population. The camps are thus born not out of ordinary law (even less, as
one might have supposed, from a transformation and development of criminal
law) but out of a state of exception and martial law. This is even clearer in the
Nazi Lager, concerning whose origin and juridical regime we are well informed.
It has been noted that the juridical basis for internment was not common law
but Schutzhaft (literally, protective custody), a juridical institution of Prussian origin that the Nazi jurors sometimes classified as a preventative police measure
insofar as it allowed individuals to be “taken into custody” independently of any
criminal behavior, solely to avoid danger to the security of the state. The origin
of Schutzhaft lies in the Prussian law of June 4, 1851, on the state of emergency, which was extended to all of Germany (with the exception of Bavaria) in 1871.
* In English in the original.—Trans.
137
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An even earlier origin for Schutzhaft can be located in the Prussian laws on the
“protection of personal liberty” ( Schutz der persönlichen Freiheit) of February 12, 1850, which were widely applied during the First World War and during the disorder in Germany that followed the signing of the peace treaty. It is important
not to forget that the first concentration camps in Germany were the work not of
the Nazi regime but of the Social Democratic governments, which interned thou-
sands of communist militants in 1923 on the basis of Schutzhaft and a
lso created the Konzentrationslager für Ausländer at Cottbus-Sielow, which housed mainly
Eastern European refugees and which may, therefore, be considered the first camp
for Jews in this century (even if it was, obviously, not an extermination camp).
The juridical foundation for Schutzhaft was the proclamation of the state of siege or of exception and the corresponding suspension of the articles of the
German constitution that guaranteed personal liberties. Article 48 of the Wei-
mar constitution read as follows: “The president of the Reich may, in the case
of a grave disturbance or threat to public security and order, make the decisions
necessary to reestablish public security, if necessary with the aid of the armed
forces. To this end he may provisionally suspend [ ausser Kraft setzen] the fundamental rights contained in articles 114, 115, 117, 118, 123, 124, and 153.” From 1919
to 1924, the Weimar governments declared the state of exception many times,
sometimes prolonging it for up to five months (for example, from September
1923 to February 1924). In this sense, when the Nazis took power and proclaimed
the “decree for the protection of the people and State” ( Verordnung zum Schutz
von Volk und Staat) on February 28, 1933, indefinitely suspending the articles of the constitution concerning personal liberty, the freedom of expression and of
assembly, and the inviolability of the home and of postal and telephone privacy,
they merely followed a practice consolidated by previous governments.
Yet there was an important novelty. No mention at all was made of the ex-
pression Ausnahmezustand (“state of exception’’) in the text of the decree, which
was, from the juridical point of view, implicitly grounded in article 48 of the
constitution then in force, and which without a doubt amounted to a declara-
tion of the state of exception (“articles 114, 115, 117, 118, 123, 124, and 153 of the
constitution of the German Reich,” the first paragraph read, “are suspended until
further notice”). The decree remained de facto in force until the end of the Third
Reich, which has in this sense been aptly defined as a “Night of St. Bartholomew
that lasted twelve years” (Drobisch and Wieland, System, p. 26). The state of exception thus ceases to be referred to as an external and provisional state of factual danger and comes to be confused with juridical rule itself. National Socialist jurists were so aware of the particularity of the situation that they defined it by the paradox-
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ical expression “state of willed exception’’ ( einen gewollten Ausnahmezustand ) .
“Through the suspension of fundamental rights,” writes Werner Spohr, a jurist
close to the regime, “the decree brings into being a state of willed exception for
the sake of the establishment of the National Socialist State” (quoted ibid., p. 28).
7.2. The importance of this constitutive nexus between the state of exception
and the concentration camp cannot be overestimated for a correct understand-
ing of the nature of the camp. The “protection” of freedom that is at issue in
Schutzhaft is, ironically, protection against the suspension of law that charac-
terizes the emergency. The novelty is that Schutzhaft is now separated from the
state of exception on which it had been based and is left in force in the normal
situation. The camp is the space that is opened when the state of exception begins to
become the rule. In the camp, the state of exception, which was essentially a temporary suspension of the rule of law on the basis of a factual state of danger, is
now given a permanent spatial arrangement, which as such nevertheless remains
outside the normal order. When Himmler decided to create a “concentration
camp for political prisoners” in Dachau at the time of Hitler’s election as chan-
cellor of the Reich in March 1933, the camp was immediately entrusted to the
SS and—thanks to Schutzhaft—placed outside the rules of penal and prison law,
which then and subsequently had no bearing on it. Despite the multiplication
of the often contradictory communiqués, instructions, and telegrams through
which the authorities both of the Reich and of the individual Länder took care
to keep the workings of Schutzhaft as vague as possible after the decree of February 28, the camp’s absolute independence from every judicial control and every
reference to the normal juridical order was constantly reaffirmed. According to
the new notions of the National Socialist jurists (among whom Carl Schmitt was
in the front lines), which located the primary and immediate source of law in the
Führer’s command, Schutzhafi had, moreover, no need whatsoever of a juridical
foundation in existing institutions and laws, being “an immediate effect of the
National Socialist revolution” (Drobisch and Wieland, System, p. 27). Because of this—that is, insofar as the camps were located in such a peculiar space of
exception—Diels, the head of the Gestapo, could declare, “Neither an order nor
an instruction exists for the origin of the camps: they were not instituted; one
day they were there [ sie waren nicht gegründet, sie waren eines Tages da]” (quoted ibid., p. 30).
Dachau and the other camps that were immediately added to it (Sachsen-
hausen, Buchenwald, Lichtenberg) remained almost always in operation—what
varied was the size of their population (which in certain periods, in particular be-
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tween 1935 and 1937, before the Jews began to be deported, diminished to 7,500
people). But in Germany the camp as such had become a permanent reality.
7.3. The paradoxical status of the camp as a space of exception must be con-
sidered. The camp is a piece of land placed outside the normal juridical order,
but it is nevertheless not simply an external space. What is excluded in the camp
is, according to the etymological sense of the term “exception’’ ( ex-capere), taken outside, included through its own exclusion. But what is first of all taken into the juridical order is the state of exception itself. Insofar as the state of exception
is “willed,” it inaugurates a new juridico-political paradigm in which the norm
becomes indistinguishable from the exception. The camp is thus the structure
in which the state of exception—the possibility of deciding on which founds
sovereign power—is realized normally. The sovereign no longer limits himself, as
he did in the spirit of the Weimar constitution, to deciding on the exception on
the basis of recognizing a given factual situation (danger to public safety): laying
bare the inner structure of the ban that characterizes his power, he now de facto
produces the situation as a consequence of his decision on the exception. This is
why in the camp the quaestio iuris is, if we look carefully, no longer strictly distinguishable from the quaestio facti, and in this sense every question concerning the legality or illegality of what happened there simply makes no sense. The camp
is a hybrid of law and fact in which the two terms have become indistinguishable.
Hannah Arendt once observed that in the camps, the principle that supports
totalitarian rule and that common sense obstinately refuses to admit comes fully
to light: this is the principle according to which “everything is possible.” Only
because the camps constitute a space of exception in the sense we have exam-
&
nbsp; ined—in which not only is law completely suspended but fact and law are com-
pletely confused—is everything in the camps truly possible. If this particular
juridico-political structure of the camps—the task of which is precisely to create
a stable exception—is not understood, the incredible things that happened there
remain completely unintelligible. Whoever entered the camp moved in a zone
of indistinction between outside and inside, exception and rule, licit and illicit,
in which the very concepts of subjective right and juridical protection no longer
made any sense. What is more, if the person entering the camp was a Jew, he
had already been deprived of his rights as a citizen by the Nuremberg laws and
was subsequently completely denationalized at the time of the Final Solution.
Insofar as its inhabitants were stripped of every political status and wholly re-
duced to bare life, the camp was also the most absolute biopolitical space ever to
have been realized, in which power confronts nothing but pure life, without any
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141
mediation. This is why the camp is the very paradigm of political space at the
point at which politics becomes biopolitics and homo sacer is virtually confused
with the citizen. The correct question to pose concerning the horrors committed
in the camps is, therefore, not the hypocritical one of how crimes of such atrocity
could be committed against human beings. It would be more honest and, above
all, more useful to investigate carefully the juridical procedures and deployments
of power by which human beings could be so completely deprived of their rights
and prerogatives that no act committed against them could appear any longer as
a crime. (At this point, in fact, everything had truly become possible.)
7.4. The bare life into which the camp’s inhabitants were transformed is not,
however, an extrapolitical, natural fact that law must limit itself to confirming
or recognizing. It is, rather, a threshold in which law constantly passes over into
fact and fact into law, and in which the two planes become indistinguishable. It
is impossible to grasp the specificity of the National Socialist concept of race—
and, with it, the peculiar vagueness and inconsistency that characterize it—if
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