If we trace the branches of the law back to its trunk, we always come to the question that informs them all: that of the preservation of human life. The covid pandemic has reminded us of this, since the measures taken to deal with it have affected every country, domestic as well as international law, public as well as private or social law. Some commentators have seen this as illustrating the sway of biopower, which, according to Foucault, characterizes the modern age.footnote1 Without much concern for consistency, the same commentators have often noted the ‘medieval’ character of the covid lockdowns and quarantine measures, to which political leaders had recourse many centuries before the supposed epiphany of ‘biopower’.
For Foucault, biopower refers to the passage, from the nineteenth century onwards, from a right of sovereignty—consisting in ‘making people die’ or ‘letting them live’—to ‘an exactly opposite power . . . of “making people live” and “letting them die”’.footnote2 But long before the idea of a sovereign secular power had crystallized in the sixteenth century, princes or cities were adopting legal provisions aimed at ‘making live’ rather than ‘letting live’—not only to deal with epidemics, but more broadly to preserve the health of their populations. Herodotus, for example, marvels at the following rule in force among the Babylonians in the fifth century bc:
Having no use for physicians, they carry the sick into the marketplace; then those who have been afflicted themselves by the same ill as the sick man’s, or seen others in like case, come near and advise him about his disease and comfort him, telling him by what means they have themselves recovered of it or seen others so recover. None may pass by the sick man without speaking and asking what is his sickness.footnote3
Summed up in Roman law by the formula of vitam instituere, the preservation of a properly human life through successive generations is not, therefore, the distinguishing mark of contemporary forms of government, but rather a constitutive fact of the institutional phenomenon in general, and of law in particular.footnote4 In order to grasp this anthropological function, it is necessary that law and institutions not be reduced to mere techniques of power, nor life to its biological dimension alone. For Louis Dumont, such a reduction is a product of the modern ideology that sees society as a collection of competing individuals.footnote5 Contrary to popular belief, Dumont argued, Nazism was a poisonous fruit of this individualism: if indeed institutions are decoys, if only force reigns between individuals fighting for life, then only biological identity can hold human communities together:
Hitler only pushed to their final consequences representations that are very common in our time, whether it be the ‘struggle of all against all’, a sort of commonplace of the uncultured, or its more refined equivalent, the reduction of politics to power. But once such premises are accepted, it is hard to see, with the help of Hitler, what can prevent those who have the means to exterminate whomever they please, and the horror of the conclusion demonstrates the falsity of the premises. Universal disapproval shows agreement on values, and political power must be subordinated to values. The essence of human life is not the struggle of all against all, and political theory cannot be a theory of power, but a theory of legitimate authority.footnote6
This reduction of politics to power and of law to pure techniques of domination, is a common feature of post-war authors who have lost the insight their great predecessors—Durkheim, Mauss, Weber or Bergson—had into institutions.
The work of Giorgio Agamben offers one of the most complete expressions of this reductio ad potestam. Agamben has used the Roman legal category of homo sacer to depart from Foucault’s dating of biopower and to assert that sovereign power has always had life as its object.footnote7 This thesis has the merit of recognizing that the links between human life and institutions are structural and do not date from the nineteenth century. But it gives the idea of sovereignty a timelessness that has no historical basis; Roman law ignores it and the feudal order is based on suzerainty, not sovereignty. Above all, sovereign power is defined by Agamben as the power to decide on a state of exception, where life may be banished, i.e. captured and exposed to death. Drawing on Carl Schmitt, this definition was certainly appropriate for Nazism, whose legal practice was perfectly summarized by Goering: ‘Recht ist das, was uns gefällt’.footnote8 But it occludes the historical experience of sovereignty conceived as self-limitation of power, which gave a lasting basis to the rule of law, whereas the Nazi state of exception quickly met its catastrophic limit.