Agamben’s theory of power is flawed, it distorts the world as a binary which limits his analysis of power and governmentality, Not every form of government power is biopolitical.

Our reading of Agamben leads to a surprising result. Following a binary code and a logic of subsumption that does not allow for differ-entiations, his argument remains committed to exactly the juridical perspective that he so vividly criticizes. He reduces the “ambiguous terrain” (1998: 143) of biopolitics by operating with a notion of politics that is at once too broad in its explanatory scope and too narrow in empirical complexity. On the one hand Agamben conceptualises the political as a sovereign instance that does not allow for an outside that would be more than an “inner outside” and an “exception”. On the other hand his presentation of sovereignty is completely limited to the decision on the state of exeption and the killing of bare life.

As a consequence, Agamben presents a distorted picture. The main danger today may not be that the body or its organs are targets of a distinctive state politics (1998: 164-5), but – quite the contrary – that we are witnessing an important transformation of the state under the sign of deregulation, privatisation and liberalisation. It is more and more the scientific consultants, economic interest groups, and civil societal mediators that define the beginning, the end, and the value of life, in consensus conferences, expert commissions, and ethical counsels. This “withdrawal of the state” could itself be analysed as a political strategy, though one that does not necessar-ily refuse individuals legal rights. In a more moderate account of exceptionality the suspension of legal rights might remain important in determining who is allowed to become part of a community, who is eligible to legal rights at all. The political strategy, however, that shifts legal and regulatory competencies from the public and legal domain to the private sphere, will probably pose a much greater threat in the future. This tendency is already visible; for ex-ample, it is possible for private companies to own and exploit human body substances (see Andrews/Nelkin 2001). Moreover, this tendency can already be traced in examples that Agamben mentions, namely the admissibility of euthanasia and transplantation medicine. Here we can expect that a patient’s legal will and contract relations will take the place of explicit state prohibitions and regulation. We note that in some countries there is already a public discussion to provide financial com-pensations for individuals who donate organs, and there is a growing consensus in the legal community to accept the will of the patient not to prolong life under certain conditions.8

By the analytical focus on a formal and repressive conception of the state and the theoretical fixation on the sovereign border between life and death, Agamben fails to see the limits of his own argumentation. Not every single form of exclusion needs to be grounded in legal regulations, or necessitate a suspension of law. Sovereignty does not only reside in political instances and state agencies, it also dwells in “life politics” (Giddens 1991: 209-31) of sovereign subjects who are expected to act in a autonomous ways as individuals. We are not only subjected to political mecha-nisms that regulate and restrict our physical life; we are also inscribed in what Foucault called “arts of government” that direct how to refl ect ourselves as moral persons and parts of collective subjectivities (see Foucault 2004a). In fact, Foucault regarded biopolitics as an essential part of the liberal art of government (see Foucault 2004b, pp. 3-28).

Yet, although the social dynamics of the relations between bare life and political existence, between technologies of the self and political rationalities, remain theoretically underdeveloped in Agamben’s work, his theory recognises that it is not sufficient to simply extend legal rights to those excluded. What is needed, however, is what Foucault called a “new right” (1997: 35) that suspends the difference between human being and citizen and overcomes a legal concept that permanently re-inscribes the separation between natural existence and political life.