Giorgio Agamben’s Homo Sacer. Sovereign Power and Bare Life, and State of Exception are, among other things, efforts to explore the deep structures shaping contemporary tendencies in the development of law and politics. Agamben offers us the diagnosis that we live in a ‘permanent state of exception’ – a situation in which law cannot be distinguished from lawlessness. He also suggests a prescription; we ought to look beyond law and reach for a realm of human activity ‘uncontaminated’ by law. He warns us that if we do not over- come law, we risk the ‘juridico-political’ system transforming itself into ‘a killing machine’, thus causing an ‘unprecedented biopolitical catastrophe’.

This article argues against both Agamben’s diagnosis and his prescription. One of the troubles with his line of reasoning is its deadlocked and overly formalistic understanding of how law operates and of how it might be used and transformed. Surely Agamben insightfully points out certain dangerous trajectories in contemporary law and politics, but the rigid way in which he analyses law and politics forecloses the most promising ways of responding to and acting upon the problems that he outlines.