The Privateering Critic
Re-Reading the Problem of the Ban in Marie de France and Giorgio Agamben
Agamben’s theory of the homo sacer has become a central theoretical perspective on sovereign violence especially after the 9/11 attacks in 2001. In his study Homo Sacer: Sovereign Power and Bare Life (1998), Agamben proposes the sovereign and the homo sacer as enduring and mutually constitutive poles of rule that can be identified throughout Western history. He understands the homo sacer (sacred man) as a carrier of bare life – a person who may be killed by all and sacrificed by none as ze is arrested at the threshold between the inside and the outside of the law. Because the sovereign, too, exists at the threshold of the inside and outside of the law, the sovereign and the homo sacer stand in an ‘ideal relationship’ (Vasilache 2007) as the inherently active sovereign constitutes hirself as sovereign through producing the inherently passive and all-enduring homo sacer. Agamben proposes this constellation in order to formulate a philosophical critique of Western understandings of life in general. He fundamentally attacks any understanding of life that is tied to political representation in order to be considered life in the first place. In order to formulate this larger point, he uses the example of totalitarianism (in Hannah Arendt’s sense) as the most suitable example to illustrate his argument. Arendt’s construction of a totalitarian sovereign is intimately linked to the Holocaust and thus to a disturbingly literal distinction of human life worthy or unworthy of living – a distinction that, in this particular case, is widely accepted as problematic to say the least. Agamben uses this impressive example to render the concentration camp a symptomatic syndrome of modernity and to conclude, essentially, that any political order based on the logic of political representation in a Hobbesian sense carries within itself a pronounced totalitarian element.
In the humanities of the United States and beyond, this argument has been especially fruitful in making sense of institutional torture scandals such as, for instance, those of Guantánamo Bay and Abu Ghraib. From the start, Agamben’s philosophical point has been read as a position from which a radical systemic critique could be formulated within Western modernity. However, this quite intentional interpretation of his theory raises the question of the critic’s own position in relation to the sovereign-homo sacer relationship. How is it that the critic can not only identify the ‘true’ nature of representative sovereignty as one that necessarily constitutes itself via homines sacri, but that ze can also formulate this critique from a position that successfully claims a detached outside perspective – despite the fact that the critic tends to operate from within this criticized structure? How can we bring together the critic who is inside of the law with an assumed perspective that stands without it, and how can we understand the particularities and problems of this position?
In this essay, I propose to complement the dual relation between the sovereign and the homo sacer with the relationship between pirate and privateer who also traditionally constitute each other at the threshold between the inside and the outside of the law, albeit in a different way. This ‘second’ threshold which is made visible by pirate and privateer is not one that constitutes sovereignty as sovereignty, but is one that renders certain forms of reference to sovereignty by violent actors within the state of exception potentially legitimate to the sovereign, and therefore worthy of re-inclusion in the law. This second threshold between the inside and the outside of the law indicated by pirate and privateer will be treated here as not one that contradicts, but rather complements the sovereign-homo sacer threshold suggested by Agamben. It helps pinpoint the critic’s own suggested legitimacy, and hir relationship to the representative sovereignty ze critiques but also speaks to, in an attempt to make hir criticism of the sovereign understood as ‘constructive.’
In order to pursue this argument, I will first elaborate on the properties of privateer and pirate that I will foreground (they, too, will be treated as if they existed in an ‘ideal relationship’ to each other as well as to the law), and then exemplarily re-read Agamben’s interpretation of a lay of Marie de France in his study Homo Sacer. In this reading, it will become evident that Agamben already implies this second distinction at the threshold of the law, but that he does so selectively. By this selection, he renders invisible a central aspect of the sovereign ban, the key concept by which the production of homines sacri is executed. I will conclude from my reading that Agamben’s criticism of totalitarianism does not undo the problem of the ban, but that it itself relies on a very specific naturalization of the ban – namely, the ban associated with an anticipated revolutionary ban of representative sovereignty itselfan. It is his naturalized treatment of the utopian revolutionary ban, I argue, which allows Agamben to pose as a Western critic who stands above and beyond the totalitarian logic of representative sovereignty without actually leaving the fold of the representative order. He does not, however, solve or even sufficiently address the philosophical problem of the ban itself.
The Pirate-Privateer-Divide and the Nature of the Sovereign
To use the pirate as the missing link to Agamben’s theory is not an altogether new idea. Daniel Heller-Roazen, Agamben’s English translator, has been the first to link the pirate to Agamben’s theory of the homo sacer in his study The Enemy of All of 2009. In Heller-Roazen’s argument, the figure of the pirate – the title-giving ‘enemy of all [humankind]’ – appears as a legalist vehicle to enable and facilitate the sovereign identification of homines sacri. Heller-Roazen addresses the question which persons or populations may in fact be most vulnerable to an identification as homines sacri, and by which standards they are made vulnerable to the ban. Theoretically speaking, his pirate is essentially a potential homo sacer rather than a separate entity in hir own right (2009: 17-18, 95, 160-161, 180, 187-189).
In pirate law, the status of the pirate as a potential homo sacer can be largely derived from the legal concept of universal jurisdiction, a notion which Heller-Roanzen refers back to concepts of piracy in Antiquity (2009: 17-22). The specifically modern notion of universal jurisdiction has been linked to piracy at least since 1705 and means that, because the pirate as an enemy of all humankind constitutes a universal threat, every sovereign may destroy hir anywhere and by any means necessary – that is to say, even if a foreign pirate has molested foreign subjects in a foreign territory (Rubin 1997: 103-104). In singular deviation from customary limitations of a sovereign’s control (especially over foreign territories and populations), universal jurisdiction against pirates allows sovereigns to intervene violently as well as legitimately against them anywhere. This pirate-specific legal situation indeed renders the pirate a figure that may be killed by all and sacrificed by none – and that is arrested at the threshold of the law by design.
Nevertheless, the pirate is distinct from the homo sacer in an important sense: namely, that the pirate chooses to stand between the inside and the outside of the law. This aspect requires some specification. In contrast to Antique models of piracy which are overwhelmingly explicit about the sovereign elements of piracy (largely because pre-modern pirates tend to be entities such as coastal clans and predatory city states), the modern notion of piracy is legally derived from the construction of the privateer. The institution of privateering fundamentally structures maritime warfare between the thirteenth and the nineteenth centuries, and is itself located in a legal realm that could be described, with Agamben, as a state of exception. The main idea behind the creation of the privateer has been to prevent any random assault on maritime shipping triggering fully-fledged warfare between sovereigns. The privateer, by hir very legal essence, stands both inside and outside the law so as to prevent the necessity of sovereign protection of both the privateer and hir victims at sea. In other words, the privateer, even more so than the pirate, is purposefully designed to be an entity whose position is impossible to pinpoint conclusively within the representative sovereign structures ze violently interferes with.
In contrast to the pirate, the privateer is not recognized as such after hir first attack at sea, but from the first time ze leaves port: the privateer is a privately equipped man-of-war that is tied to the sovereign by contract. The contract traditionally states that enemies of the sovereign and their allies may be molested by the privateer, whereas the subjects and specified allies of the sovereign hirself must be left unmolested. In return, the privateer finds safe haven in the ports of the sovereign, where ze can make repairs, recruit sailors, and sell hir plunder at a profit. When in port, the privateer must also pay a percentage of hir profits to the sovereign, and it is this gesture which actualizes the validity of the contract whenever the privateer comes to port. Correspondingly, the promise of protection by the sovereign is also limited to the port, where protection is conditioned by the previous existence of a contract as well as its renewed validation. When at sea, the privateer alone bears the risks of hir trade; if ze is captured, the early modern sovereign can (and more often than not, does) disavow the privateer and leave hir to hir captors, who then proceed to try hir as a pirate.
In this sense, the privateer may be killed by all as a pirate, but is sacrificed by none as the member of an official army – this is a notable difference to the professional navies that begin to emerge in the mid-eighteenth century as men-of-war permanently protected by the sovereign. The privateer can be understood, for the purposes of this essay, as a homo sacer who is endowed with the ability to use violence actively, and who strategically uses violence and its ends to re-enter the law repeatedly.
The privateering-derived pirate is very basically defined as one who ignores the privateering contract by not refraining from molesting the subjects and allies of any sovereign. Ze is an enemy of all humankind in the sense that all, rather than almost all, ships at sea are potential prey to hir. While the pirate at sea is arrested in the same state of exception as the privateer, hir decision to commit violence is not strategically geared towards perpetually re-entering the law. Instead, hir violence in the state of exception is sovereign in the sense that it constitutes hir as a third entity whose violence is exclusively a marker that identifies hir as pirate. Early modern thinkers have anticipated Agamben’s argument on the sovereign-homo sacer relationship insofar as they have recognized this constitutive dimension of violence at sea as quasi-sovereign. The pirate is legitimately destroyed by the sovereign because of hir active choice to exercise violence against populations that is to some extent indistinguishable from the sovereign production of homines sacri. For this reason, scholarship on ‘classic’ modern piracy (white, Christian, colonial, homosocial male, and privateering-derived in its core definition) has highlighted time and again that the pirate is both a potential homo sacer and a potential sovereign – and thus a more complex figure in relation to Agamben’s theory than Heller-Roazen, for example, allows. It is in this spirit that Montesquieu, for example, views the pirate band as the embryonic version of any representative sovereign order, and squarely identifies the pirate as a potential sovereign by hir very nature (1748 [2010, 362-364]).
In this sense, the threshold of the law opened up by pirate and privateer draws attention to the general theoretical problem that it is not only the Agambian sovereign who can reduce humans to bare life. In the case of pirates and privateers, sufficient philosophical and legal discursive tradition is in place to make these maritime cases theoretically relatable to Agamben. In the case of pirates and privateers who operate at sea, extra-sovereign violence in the state of exception is automatically committed; the state of exception is in place as soon as a committer is a privateer or a privateering-derived pirate because these entities are precariously bound to the sovereign by design. They are distinguished from each other, however, by their different position towards the sovereign while at sea and while in port. In Western privateering and pirate law, a distinction is made between legitimate violence that is geared towards re-entering the sovereign law, and illegitimate violence that occurs in the state of exception on the basis of choices not geared towards re-integration. The pirate, by not submitting to the law either in practice or in reference, rivals the very sovereign prerogative of constituting hirself by the reduction of others to bare life, and by hir threat to even reduce the sovereign hirself to bare life if possible. Accordingly, hir arrival in port may very well result in invasion rather than in a plea for sovereign protection.
Re-Reading the Sovereign Ban in Marie de France’s Bisclavret
So far, my argument about pirates and privateers may read like a theoretical intervention that has little to do with the position of the critic in Agamben’s Homo Sacer. However, I claim that Agamben constantly uses the theoretical premises of the pirate-privateer distinction to structure the overall perspective of his argument. As a case in point let me draw attention to the chapter ‘The Ban and the Wolf’, and a passage within it that is particularly illustrative of the link between the two thresholds in his argument. In this example, Agamben interprets a piece of literature to help illustrate central relationships postulated by him; he concretely identifies specific figures within this text as epitomes of sovereign and homo sacer. It is on the basis of the original literary text that I will more directly link the privateer-pirate relationship to Agamben’s theory of the sovereign-homo sacer relationship.
The lay Bisclavret, written by the poet Marie de France in the twelfth century, is the story of a baron (who is, in Agamben’s reading, the homo sacer) who is close to and loved by the king (the sovereign) but periodically leaves the realm to roam the forest as a werewolf. When he tells his secret to his wife, she conspires with another knight, soon to be her lover, to steal her husband’s clothes while he is in his transformed state. His clothes gone, the baron’s ban is complete as he has to permanently remain in animal form. One day the king goes hunting and comes across the werewolf. Since the wolf exhibits extraordinary servility, the king takes him in as a soon-beloved pet. When the deceitful baroness appears at court sometime afterwards, the wolf attacks her and bites off her nose. Because the wolf’s exhibition of violence is so uncharacteristic, the court proceeds to interpret it; the baroness’s treachery is discovered, the wolf is transformed back into a man, and the baroness and her lover are permanently banned by the king. The baroness’s ban is, in fact, so permanent that even her children inherit her lacking nose. Agamben himself, who omits this last piece of information about the lay, highlights two points about this story:
‘[First, w]hat is essential here is the detail […] of the temporary character of the metamorphosis, which is tied to the possibility of setting aside and secretly putting on clothes again. The transformation into a werewolf corresponds perfectly to the state of exception, during which (necessarily limited) time the city is dissolved and men enter into a zone in which they are no longer distinct from beasts. The story also shows the necessity of particular formalities marking the entry into – or the exit from – the zone of indistinction between the animal and the human (which corresponds to the clear proclamation of the state of exception as formally distinct from the rule). […]
[Second, t]he special proximity of werewolf and sovereign too is ultimately shown in the story. [When the werewolf sees the king in the forest,] he runs toward him and grabs hold of his stirrup, licking his legs and his feet as if he were imploring the king’s mercy. Amazed at the beast’s humanity […], the king brings him to live with him, and they become inseparable. The inevitable encounter with the ex-wife and the punishment of the woman follow. What is important, however, is that Bisclavret’s final transformation back into a human takes place on the very bed of the sovereign.’ (1998, 107-108)
When we read his interpretation in light of the pirate-privateer relationship that I have just sketched, we are immediately alterted to several particularities in the emphasis of Agamben’s analysis. First, he is only interested in one of the two bans presented in the lay, namely that of the baron, and is dismissive of the ‘inevitable’ ban of ‘the woman.’ Second, he focuses on that ban which is caused by the extra-sovereign ‘nature’ of the baron as a werewolf, whereas he refrains from discussing the ban that actually results from a sovereign decision. Third, the ban he focuses on is a ban which – and this is ‘essential’ here – inherently allows for a reintegration into the law because it is linked not to the sovereign decision but to the inherently limited sovereign control over the forest. Fourth, the lay, as well as Agamben, emphasizes the love that continues to inform the relationship between king and baron across the baron’s various incarnations as man-wolf, wolf, and as we may presume, fully restored man.
Especially the third and fourth points show that the properties of the homo sacer that Agamben carves out in this particular example share important characteristics of the privateer. The privateer is an extra-sovereign entity not by explicit sovereign verdict, but by design; this design is, moreover, linked to the nature of the sea as a space inherently beyond full sovereign control.
Also, the privateer’s ability to move in and out of the law is made possible by his constantly renewed actualization of allegiance to the sovereign both at sea, where he refrains from attacking the sovereign and hir allies (consider the first encounter of the werewolf with the king and his hunting party), and especially more particularly in port where the privateer actively and repeatedly proves hirself a loyal subject (consider the werewolf’s behavior in court that is characterized by docile gestures as well as the active exposure of the baroness). In other words, the love that exists between king and baron throughout the lay is the central premise for the possibility of re-transformation into a human being or, as it were, into a life that satisfies the principles of political, rather than bare, life.
But what about the baroness? Why is her ban omitted from the analysis, and why is the sovereign decision to ban her – which is permanent enough to reach across the noseless generations – not important to Agamben? Perhaps the problem is that in contrast to the baron, her relationship to the sovereign is not at all clear. It is she, not the king, who actually makes the decision to ban the baron into permanent animal form: other than the baron, she is not merely banned passively, but she both bans and is banned. Her position within the entire complex of the ban in the lay renders her both a potential sovereign (who constitutes hirself by hir ability to ban, however incompletely in the baroness’s case) and a potential homo sacer (who is in acute danger of being banned, a danger that also materializes itself in the lay). If the baron shares central features with the privateer as ze was defined here, the baroness shares central features with the pirate as an entity with a potential to sovereignty as well as an existence as a homo sacer.
Let me reformulate the story’s plot once more. Faced with the discovery of her husband’s transformative nature, the baroness trespasses on the king’s prerogative to ban, and sets the story in motion by arresting her husband in the state of exception (with the assistance of her lover, who is, and remains, her informal vassal just as the baron is, and remains, a formal vassal to the king). In relation to the baron, the baroness assumes the role of a sovereign because she permanently arrests him in the state of nature. This is precisely why the banned werewolf must now make an explicit effort to appeal to the king that involves her actions against him. When in wolf-man form, he had always been able to return to both wife and king; after his wife has actively banned him, he must now appeal to the king to actively lift her ban from him. The king readily accepts the wolf’s submissive gestures. The wolf’s submission to the king is described as total (as in the vivid example of feet-licking), but it does not in fact reduce the baron to helpless passivity: instead, siding with the king is the only option he has to avenge himself and to be returned to human form. Since the baroness has banned him in a gesture of sovereignty, to expose her means to alert the king to an encroachment on his own sovereignty. The king can only respond in one of two ways: either by banning her in her own right, or by officially endorsing the baroness’s claim that the sovereignty of the king over her and the baron, as well as her loyality vows to her husband, are meaningless. The werewolf’s need for re-transformation and revenge, and the king’s need to reconstitute himself as the only one who may actively arrest people in the state of exception, both require the baroness’s permanent transformation into a homo sacer. Indeed, the simultaneity of these desires is constitutive for the lay’s neat conclusion of a good order being fully restored.
Agamben postulates that the baron in his werewolf form is a homo sacer – and always only temporarily so, as he emphasizes – but it is worth noting that this figure is first and foremost identified as a baron in the lay, in other words, as a figure primarily defined by his service to the king. This is strongly indicated both by his constant servility towards the sovereign and by his violence on behalf of the sovereign. The aspect that allows the baron’s constant transition back and forth is based on the implicit assumption that both sovereign and privateer always remain invested in upholding and stabilizing the realm of the law in general principle, even though they act outside of the regulating reach of the law whenever they actualize themselves as sovereign and privateer. The privateer, in this sense, is an unrecognized representative of the sovereign wherever ze goes. All ze needs to be transformed back into a recognized representative of the sovereign is the renewed sovereign verdict that ze is in fact such a representative. The privateering character in this lay proves hir allegiance by exposing a piratical character who only pretends to be representative of the sovereign king but in fact does not have his interests in mind.
It is, indeed, the baron’s biting off the baroness’s nose that is the defining moment of the story, for two reasons. First, it is only his violence against her that exposes her as an illegitimate imposter to the king’s sovereignty. The docile werewolf in the lay shows uncharacteristic and surprisingly violent aggression against the invasive carrier of (concealed) piratical imposition. Only because this violence begs interpretation that explicitly takes into account the baron’s own unwavering loyality to the king, is the baroness’s piratical imposition on the prerogative to ban detected as such.
Second, it is this rather than any other act which begins his re-transformation. It does not in fact matter whether the transformation back to human form occurs on the king’s bed, the king’s floor, or in the king’s vegetable garden. Instead, what brings the baron back to human form is his offering of the baroness as the one who should take his place in the permament state of exception. What actually frees the privateering homo sacer in this lay is the exposure and subsequent offering of this pirate as someone who should be banned, and is in fact banned (without much comment from Agamben except that it was to be expected). The privateering character in this lay may change hir status not by servitude, but only by actively exposing a piratical imposter to sovereignty.
The transformation of the homo sacer lost at sea into a privateer returning to port and offering hir prey to the sovereign – the identified pirate, a genuine and manifest threat to the sovereign – is a grim and problematic passage because it makes clear that it is not in fact the proximity to the king which reverses the ban. This is not a story of a homo sacer who is rehabilitated out of mercy, gratitude, or the sovereign recognition of his allegiance. The baron spends considerable time as the king’s submissive pet without being re-transformed. It is instead the story of a rehabilitation brought about by the offer of an exchange. The baron is released from the state of exception only because he can offer the baroness as someone who can be banned in his stead. Because he was banned into permanent werewolf form by her personally, and is able to expose this act as an act of sovereign encroachment, the king rewards him by simply reversing their places in terms of the law.
As becomes obvious now, the ability to return comes at a price. The baron demonstrates – indeed, must demonstrate – throughout the lay that the violence of the ban he experiences does not change his attitude towards the sovereign ban as principally just. It does not seem to be problematic to him that his king constitutes his sovereignty by the very method of the ban that the baron himself has suffered and from which he desperately tries to free himself. Having access to a ‘port’ at least once offers the opportunity to escape a permament state of exception, but the price is to actively and continuously legitimate the existence of the state of exception as such. The privateering homo sacer has experienced firsthand what the ban means, and must still affirm it as unproblematic for the pirate ze delivers to the sovereign. The ban itself is not questioned or disabled as a notion at any moment. Instead, to accept the notion of the ban as legitimate in principle allows the homo sacer some leeway in renegotiating the violent consequences of the ban for hirself. The willingness to accept the ban as legitimate is proven by the baron’s plea to ban the baroness. Before he pleads this, he will not be re-transformed. It is this quid-pro-quo exchange of banning a pirate instead of the pirate-exposing privateer, this compromise which actively upholds the ban as a necessary aspect of re-transformation, which Agamben renders invisible by excluding the baroness from his analysis.
The Privateering Critic: Exposure on Whose Behalf?
Why is it problematic, then, that Agamben has not talked about the baroness? And what does this omission say about his own position as a critic, if it says anything? At this point, we come full circle to the philosophical argument with which we started, namely, that Agamben’s theory is a fundamental critique of representative sovereignty, and that the critique relies on the exposure of the totalitarian element inherent to it. This claim itself, I suggest, is a form of posing as a privateering homo sacer. As a gesture, it is quite comparable to the baron who bites off the nose of a secretly imposing baroness, and it, too, comes at a price.
Agamben, by attacking representative sovereignty through charging it with a totalitarian core, evokes the revolutionary removal of it – in other words, representative sovereignty’s own permanent ban. This tendency of the argument is best illustrated in a somewhat heavy-handed first sketch of Agamben’s approach to Arendt’s theory of totalitarianism, elaborated in the article ‘On the Limits of Violence’ of 1970. In this very early article, Agamben equates the notions of revolutionary and sacred violence; he claims that sacred violence is the only violence that can bring about an authentic revolution because it stands outside of history and can therefore truly end one time and bring about another one which follows different ontological premises. It may be somewhat unfair to compare the work of the Agamben of 1970 with the far more mature work of 1995, but what has certainly remained of his earlier work is the fascination with absolute relationships as a productive way to comment on the political present and the ways in which they have to be changed. In this sense, to identify these absolute relationships, such as the sovereign-homo sacer relationship, is in an important sense strategic – and if the theory of the homo sacer is the basis of a structural criticism, it too comes with a quid pro quo that precisely does not overcome the constitutive existence of the ban in any way. Instead, it obscures the continued existence of the ban as a constitutive factor even of the most fundamental critique.
Consider, for example, how Agamben’s theory has been made fruitful for analysis especially in U.S. American scholarship after 9/11. The breakthrough for the theory of the homo sacer in U. S. American scholarship came with an article by Donald E. Pease entitled ‘C. L. R. James, Moby-Dick, and the Emergence of Transnational American Studies’ (2002). In the article, Pease interprets C. L. R. James as a homo sacer who is detained on Ellis Island and is thus suspended in a state of exception by the Cold War security apparatus. Rather than raving about the injustice of his detainment, Pease relates, James writes a scholarly interpretation of Moby Dick which demonstrated that he, a homo sacer thrown into a state of exception by the Cold War security apparatus, in fact understands the essential American character better and is already more of an American than ‘they,’ who pose to act in the American interest, ever will be. The security apparatus, James’ critique and Pease’s interpretation likewise suggest, illegitimately pretends to speak in the name of that America on which it has imposed itself, whereas James appeals to the true American character, and pleads for his own release and recognition in exchange for exposing a totalitarian bureaucracy. The security apparatus, now glaringly exposed to the American people as a totalitarian imposter to national interest and character, is then suggested to be removed and overthrown (in other words: banned) instead of the literary scholar (Pease 2002), the immigrant (Kaplan 2005), the civilian caught in a Kafkaseque net of bureaucratic punishment (Butler 2004), or the foreigner randomly labelled terrorist (Heller-Roazen 2009). All of these interpretations constitute, in their more focused critique of U.S. American institutions, abbreviated versions of Agamben’s general suggestion that the only solution to the all-encompassing problem of representative sovereignty is a revolution that bans the system in its entirety.
Now, one could ask, what of it? Even if the fiction of a radical revolution that hurls representative sovereignty into the dustbin of history is a necessary theoretical vehicle, has it not on the other hand been fruitful in exposing a real theoretical problem in the concept of representative sovereignty? Did the baroness, in the incarnation of representative sovereignty, not have it coming to her by putting itself in the wrong in the first place? Do these critical exposures not finally allow us to think of ‘piratical’ systems as problems to be addressed since we have, after all, the welfare of our true king in mind – the overarching notion of non-objectified and non-excluded life? Do not these critics simply hope to be recognized as faithful privateers in the service of life itself, and can this possibly be called an ignoble cause?
I neither dispute the theoretical advantages of Agamben’s theory nor try to belittle the underlying concerns; to be invested in the cause of accepting life as unconditional is noble. However, to pose as a privateer in the service of life in the spirit of Agamben renders invisible, by the very premise of the theoretical construction, the fact that a massive ban of those piratical, illegitimate ‘totalitarians’ is naturalized as quite unproblematic within the critique. Such a ban seems ‘inevitable’ for a truly life-affirming utopian order, just like the lay’s removal of the unruly baroness is inevitable for arriving at a happy ending. There is an inner contradiction to be suspected in a theory that criticizes the sovereign ban as a totalitarian tool on the one hand, but does not address the ban as a condition of revolutionary critique on the other.
Lastly, there is another problem to be addressed which is, perhaps, more of a postscripted open question. If representative sovereignty is a general philosophical, as well as a political, problem that runs through Western history, and if it is a problem that requires urgent attention and perhaps even a solution, what can we make of the greater analytical problem that the Agambian critic remains a privateer in a pirate port? After all, do not all of the critics quoted in this essay, most prominently Agamben himself, profit from the benefits of, say, national representation? And do they not personally represent important and highly respected strands of academic scholarship, do they not represent their universities and their disciplines, and are their voices not heard much louder than others for that very reason? While these questions may be read as somewhat routine accusations of systemic hypocrisy, there is, I think, an important problem at the bottom of the slightly comical situation of the eloquent Western A-list scholar who attacks the notion of representative sovereignty as totalitarian.question returns us, ultimately, to the question of what qualitatively distinguishes the pirate from the privateer. The privateer always relies, in some way or another, on being understood as a beneficial entity for whomever ze addresses. Ze must communicate hir principal allegiance at any given moment; this is how ze ensures hir freedom to move in and out of the state of exception. Whenever the state of exception threatens to be permanent for hir, the privateer must resort to exposing a pirate who violates known and valued principles (in the examples used here: of sovereignty), hoping that the pirate instead of hirself will suffer the permanent ban. The privateer enjoys freedom only on the condition of hir basic affirmation of at least some of the principles that constitute sovereignty. The pirate, on the other hand, deviates and perverts; ze renders accepted norms and traditions insignificant by hir actions; ze eludes conclusive judgement. Instead of referencing a utopian revolution that will ban entire orders in the name of humankind, we might perhaps do well to take a step back and to ponder the puzzling perspective of the pirate. More specifically, one may raise the question of whether a theoretical perspective can be carved out here that can be integrated into academic language without resorting to the more troubling notions of representative frameworks that Agamben himself draws attention to, and also ultimately falls victim to.
The perspective of a pirate as a theoretical perspective – however it may look like in practice – might even help address some of the basic concerns brought forward by the privateering critic; after all, the pirate is privateering-derived. Also, one may add, as a philosophical entity ze is already the potential epitome of both bare life and political life.
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Sonja Schillings is a postdoctoral researcher at the Graduate Centre for the Study of Culture (Justus-Liebig-Universität Gießen) in Germany. She has recently defended her dissertation entitled Hostis Humani Generis and the Narrative Construction of Legitimate Violence (GSNAS/John-F.-Kennedy-Institute for North American Studies, Freie Universität Berlin). Recent publications include work on discursive containment in legal constructions of piracy, and the concept of the state of nature in contemporary Anglo-American fiction.