This love of paradox is not simply a rhetorical tic. It deeply shapes Agamben’s political analysis, which seeks out places where our accustomed categories begin to overlap and break down. For example, he is fascinated with the figure of the sovereign ruler who can suspend the law, because of what he calls “the paradox of sovereignty,” namely “the fact that the sovereign is, at the same time, outside and inside the juridical order.” On the one hand, the sovereign who declares a state of emergency can freely violate the letter of the law; on the other, his actions are legitimated by reference to the law and (at least ideally) aim to restore the normal conditions for the rule of law. Sovereign action in the state of emergency is thus a strange kind of legal illegality — or is it illegal legality? A related dynamic is at work with the figure of the homo sacer, who stands as a kind of metaphor for all people excluded from official legal protection and reduced to a state of “bare life,” such as refugees, “enemy combatants,” and concentration camp victims. On the one hand, they are excluded from the realm of law, but this very exclusion is itself a legal act, indeed one of the most forceful and decisive of legal acts. Thus the person reduced to bare life is “excluded in,” or “included out.”
The greatest contradiction of all, however, is the way that the sovereign and the homo sacer’s respective relationships to the law — relationships of exclusive inclusion or inclusive exclusion — overlap. On a purely formal level, the same paradoxical and contradictory relationship to the law holds equally for the mightiest ruler as for the most desperate victim. Indeed, these two paradoxes begin to become mirror images of each other: “At the extreme limits of the order, the sovereign and homo sacer present two symmetrical figures that have the same structure and are correlative: the sovereign is the one with respect to whom all men are potentially homines sacri, and homo sacer is the one with respect to whom all men act as sovereigns.
”Agamben believes that our political system is increasingly breaking down and that extra-legal but legally validated emergency power is no longer the exception, but the rule. Here we might think of the ways in which the supposed “emergency” of the War on Terror, which has now dragged on for well over 10 years and shows no sign of ending, is used to legitimate increasingly extreme executive powers (including, most recently, President Obama’s claim that he has the right to assassinate US citizens suspected of terrorism without trial and on US soil). This breakdown in legal procedure is not a moment of weakness, however, but the moment when the law displays its power in its rawest and most deadly form. As Agamben puts it in State of Exception, when “the state of exception […] becomes the rule, then the juridico-political system transforms itself into a killing machine.”