Was the Holocaust Legal? Agamben on Ethics, Law, and Genocide

What would an ethics which doesn’t take a legal framework as its model or legal concepts as its basis look like? Giorgio Agamben’s ethics constitutes one of the most serious attempts at such a project.

That Agamben’s politics structures his ethics is one of the first and most important interpretative positions taken here, and because of this, this article begins with a discussion of Agamben’s politics. It then moves on to analyze Agamben’s theory of testimony and bearing witness and his analysis of the Holocaust and its implications. This article concludes with a discussion of the human and the non-human, and how Agamben uses this distinction to approach ethics outside of a legalistic framework.

It is often observed that Agamben’s ethics proceeds from elements of his politics. Since this article is focused squarely on his ethics, we shall have to summarize these political elements succinctly. Perhaps the most important of these is the idea of the “state of exception.” Agamben borrows this idea from Walter Benjamin. The basic premise is that it is in the very nature of the modern state to break its own putative laws, to posit that the circumstances being what they are (i.e, exceptional), certain extraordinary measures must be taken.

Think, for instance, of the War on Terror and the suspension of civil liberties (torture, detainment without trial, mass surveillance) justified with reference to it. Benjamin and Agamben hold that the state of exception is constant, forever being reaffirmed and firmed up with further excuses. Agamben finds the ultimate example of this tendency in the Nazi state and the ever more incredible excuses that were used to justify mass killings. The effect of the state of exception on Agamben’s ethics is to incite a focus on non-legalistic ethics — ethics with no reference to law. It might interest us to note that a similar project has been at the forefront of various Anglophonic ethical projects, though for very different reasons.

The Importance of The Relationship Between Testimony and Ethics

Agamben is particularly interested in testimony and bearing witness as they relate to ethics. What are the ethical implications of the disjunction between fact (we might say, “bare fact”) and truth?

We find that Agamben, growing up in post-Fascist Italy immediately after the Second World War, develops his ethics in light of the Holocaust as much as he does his politics. One of the more famous examples he uses is that of the “Muselmann,” literally meaning the “Muslim man.” This was the name used in the concentration camps to refer to those prisoners who were in a state of physical degradation so severe as to be almost comatose, in other words, on the borders of life and death. It does not, to be clear, refer to actual Muslims, and the origins of this label are contested (it is unclear, for instance, whether it was invented by the Nazi guards or the prisoners, and it is equally unclear if and how derogatory it was).

Part of what makes the Muselmann important for Agamben is how this figure illustrates the absence of a clear distinction between the human and the no longer human, between the living human being and the dead. Agamben’s ethical project can be conceived in part as an attempt to investigate the possibility of describing humanity beyond a purely biological definition.

There is much that is “radical” in Agamben’s ethical theory, meaning both at odds with much of the tradition of philosophical ethics and at odds with how we often speak or think about our ethical obligations, rights, and responsibilities. Indeed, Agamben sets himself against the very idea of ethical responsibility as such. In contrast to the intellectual impunity often ascribed to academics and their flights of fancy, Agamben’s work has received severe criticism.

Agamben’s characterization of the Holocaust is extremely controversial. By locating in the Holocaust not an exception, but a hidden tendency of Western political culture, Agamben has — critics argue — cheapened the significance of a singular event.

Indeed, whether a philosophical perspective is the correct one to analyze the Holocaust from is an open question. There is a certain sense in which philosophy — with its abstractions, its technicality, its sheer otherness from ordinary life — can feel like a luxury, not the field which we should turn to when seeking answers to the most urgent questions. Yet those taking this view should ponder the fact that the Nazis saw the value of philosophy — indeed, they went to great lengths to develop a philosophical ground for their political worldview.

The Holocaust as a Paradigm

Still, there is something to these criticisms of Agamben, and he does, at certain points, seem to miss what is singular about the Holocaust in the service of the broadest possible political analysis. That said, it is an oversimplification to characterize Agamben as likening the Holocaust to banal elements of modern life.

Agamben is rather using the Holocaust as a “paradigm,” which he defines as “an example which defines the intelligibility of the set to which it belongs and which it at the same time constitutes.” The relationship between the paradigmatic example and its analogies is non-inductive — we do not proceed from one paradigm to another by way of a list of observed features that they share. It is instead an explanatory relation — the paradigm example makes the class of related cases intelligible, or understandable.

Here, Agamben follows Foucault and uses undoubtedly the most famous Foucauldian example in doing so — that of Jeremy Bentham’s Panopticon. This example is worth explaining more fully.

The Panopticon was an imaginary, ideal prison dreamt up by the utilitarian philosopher and jurist Jeremy Bentham. The spatial structure of the Panopticon was a large, central (rotating) guard tower encircled by the prisoners in their individual cells, isolated from one another. The point of the Panopticon was that it would allow the guards to observe any of the prisoners at any given time, and would not allow the prisoners to determine whether or not they were being observed at a given time. As such, the prisoners would know that they might be being observed at any moment.

Foucault uses the Panopticon example as a paradigm in Agamben’s sense. That is, Foucault uses the Panopticon not merely as an instance of a tendency — he doesn’t simply say, “this is an example of what I’m talking about,” but he rather attempts to explain his theory using the Panopticon as a kind of diagram, or guide. Foucault himself doesn’t call the Panopticon an example, but rather is in itself the “principle” of disciplinary power.

Agamben goes further than Foucault in decoupling concepts from their concrete instances. Foucault was a historian, and unwilling to set aside the inductive elements of analysis as Agamben did (and with it, presumably, almost anything like history and the empirical humanities as we know them). Agamben follows concepts, not events. When he finds a concept that is also a tendency in our political culture, he is disinclined from viewing it as in any way accidental. With a collection of concepts, the failure of one often amounts to a failure of the whole set. Certainly, the relationship between them is likely to change. The same is not true in the same way for historical events.

Agamben argues against a legalistic or juridical conception of ethics. What this means is the jettisoning of certain ethical concepts which are often taken to be extremely intuitive or basic moral goods. For Agamben, responsibility and dignity are fundamentally tied to conceptions of the law and, therefore, the state. Given what has been revealed about the tendencies of our political culture after the Holocaust, Agamben thinks these conceptions need to be overcome.

He finds that the human and the non-human elements of human beings are run together closely – whatever we are in virtue of our humanity can be defined and understood only against elements of non-humanity. This idea is a result Agamben draws from a distinction he borrows from the German philosopher Martin Heidegger — the distinction between the human being as a speaking being and a living being. This seems at least analogous to the distinction between the human being as an animal, and the human being as distinct from animals.

Indeed, for both Heidegger and Agamben, what separates human beings from animals is a major concern. Agamben, unlike most moral philosophers, does not dwell on delineating different ethical concepts or tendencies, but on dissolving the difference between them in the service of a description of human life as a whole. This holistic approach to ethics is reminiscent of that pursued by modern virtue ethicists, who also happened to respond to the demand for non-legalistic ethics. It is always worth paying close attention when theorists from very different philosophical traditions approach a similar intellectual project in the same way.