Freedom without being: Kant’s corrective as the philosophical crux of Agamben’s ‘Homo Sacer’ series
| Author | Susan D Brophy |
| DOI | 10.1177/1474885116673546 |
| Published date | 01 April 2019 |
| Date | 01 April 2019 |
| Subject Matter | Articles |
European Journal of Political Theory
2019, Vol. 18(2) 195–215
!The Author(s) 2016
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DOI: 10.1177/1474885116673546
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Article
Freedom without being:
Kant’s corrective as the
philosophical crux of
Agamben’s ‘Homo
Sacer’ series
Susan D Brophy
St. Jerome’s University in the University of Waterloo, Canada
Abstract
In Giorgio Agamben’s eyes, Immanuel Kant’s work is the modern philosophical harbin-
ger of the catastrophic ‘state of exception’. By focusing on the latter’s ‘author/subject
corrective’ (whereby the individual is both author and subject in relation to law), I make
the connection between Agamben and Kant’s Critique of Pure Reason more apparent. In
doing so, I show how Kant’s corrective instrumentalises autonomy in such a way that it
compromises the validity it seeks to rationalise; it does so by separating the individual
from actuality, by ostracising law from political challenge, and by conflating individual and
state interests. Taken together, these three undercurrents are defining features of
Agamben’s ‘Homo Sacer’ series.
Keywords
Kant, Agamben, autonomy, state of exception, corrective
The ‘Copernican revolution’ worked out by Kant ...[consisted] in having substituted
an ontology of command for an ontology of substance. And one does not understand
the history of post-Kantian philosophy if one does not know how to make out in it the
succession of crossings, conflicts, and compromise between the two ontologies.
(Agamben, 2013a: 122)
Corresponding author:
Susan D Brophy, Department of Sociology and Legal Studies, St. Jerome’s University in the University of
Waterloo, Waterloo, ON, Canada.
Email: susan.brophy@uwaterloo.ca
In Giorgio Agamben’s eyes, Immanuel Kant’s work is the modern philosophical
harbinger of the catastrophic ‘state of exception’ (1998: 52, 2005). Although
Agamben admits that this attribution ‘is obvious as far as ethics is concerned’,
he finds ‘it is less obvious that the Critique of Pure Reason can also be read from
this perspective’ (2013a: 121). In this essay, I not only make this ‘less obvious’ angle
more apparent, I also show that it is instructive when it comes to understanding the
catastrophe in particular and the ‘Homo Sacer’ series in general.
For Kant, to swear an oath to ‘a certain unalterable set of doctrines’ such
as those found in religion
1
‘would be a crime against human nature, whose original
destiny lies in ...progress’ (1991a: 57). To serve said destiny, he proposes what I
term an ‘author/subject corrective’. From the author/subject corrective emanates a
‘subversive’ conception of freedom insofar as the individual alone delineates the
terms of authority and subjectivity by emancipating those processes of reason
that sanctify autonomy (Reiss, 1999: 253). Rendered in juridical terms – whereby
the individual is both author and subject in relation to law – the corrective is a
prototypically self-referential mode of validation, thus: state law is valid because it
aspires to the ideal of legal autonomy, which ensures that autonomy-maximising
individuals can respect it; in turn, autonomy-maximising individuals validate
state law because it sustains the ideal of legal autonomy, which produces laws
that they respect.
Some renowned contractarians (Habermas, 1996: 90; Rawls, 1971: 11) and more
recent publications (Hodgson, 2010; Korsgaard, 2008, 2009; Ripstein, 2009) trace
this corrective to Kant’s moral and political writings, but I caution against this
tactic. Such an approach undermines the author/subject corrective by curtailing its
requisite connection to Kant’s transcendental idealism, and by extension, minimis-
ing that which supplies liberal legal theory with its nuance and force. At the same
time, this tendency to rebuff the vital link to Kant’s transcendental idealism is
telling. Among contractarians, reticence in this vein implicitly acknowledges that
the corrective’s transcendental idealist framework proves difficult to reconcile with
that most sacred of liberal principles to which it gives rise: the principle of self-
legislation. As ‘fruit of the poisonous tree’, the principle of self-legislation is both
borne by and spoilt by the corrective. Kant’s corrective is ‘poisonous’ because in
order to establish the commanding force of the self-legislative individual, it ultim-
ately undermines freedom and compromises the validity it seeks to rationalise;
it does so by separating the individual from actuality, by ostracising law from
political challenge, and by conflating individual and state interests. Taken together,
these three undercurrents are defining features of Agamben’s state of exception
(1998, 2005).
When Agamben declares that law becomes ‘indistinguishable from life’ in the
state of exception (1998: 53), it is no accident that he cites Kant’s philosophical
framework in which command overtakes substance – or ‘est
o[having-to be]’
supplants ‘esti [being]’ (2013a: 121). While I touch on this formative connection
elsewhere in my writings about Agamben’s philosophical framework (Brophy,
2015a, 2015b), I have yet to expound on it from the Kantian angle. On this occa-
sion, therefore, I offer a close study of Kant, taking care to substantiate the
196 European Journal of Political Theory 18(2)
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