Agamben’s “Configuration of Facts” and Foucault’s “Regime of Truth”

In “The Central Bankers’ Long COVID,” Fabio Vighi observes that the contemporary paradigm of government by crisis fosters a rhetoric of exclusion, which neutralizes dissensus and positions the official narrative of emergency capitalism as the sole bearer of truth. A permanent epistemic state of exception establishes a watertight regime of opinions, which blocks any potentially heretical inquiry into the “ideological sickness” of our socioeconomic system.[i] Before developing this concept further, it is important to note that the expression “epistemic state of exception” constitutes a useful pleonasm. As Giorgio Agamben demonstrates, every state of exception presupposes “the ultimate configuration of facts” that authorizes a suspension of the rule.[ii]

The configuration of facts is not reducible to specific techniques of propaganda or “content moderation” introduced after a sovereign decision to suspend legal norms in the state of exception. Before sovereign power can annul constitutional protections and deploy the instruments of censorship to address a particular emergency, it must first create a field of knowledge within which a particular phenomenon qualifies as an emergency and warrants the use of emergency powers. The war on terror supplies a paradigmatic illustration of this principle: when President George W. Bush accused Iraq of possessing the non-existent weapons of mass destruction in his 2003 address, which announced the beginning of Operation Iraqi Freedom, he effectively configured the facts that guaranteed a sovereign decision on exception. Those who questioned the “truths” proffered by sovereign power had to confront the well-known neocon dictum: Either you are with us, or you are with the terrorists.

As the Retort collective argued in the immediate aftermath of the 2003 invasion of Iraq, the military intervention served to not only destabilize the Middle East but also to cultivate a “culture of terror” in the West: “The stifling and repression of domestic opposition – the direct terrorizing of citizens – is rationalized in the name of (homeland) security, patriotism, support for the troops.”[iii] In this context, Michel Foucault’s concept of the regime of truth is, perhaps, more useful to delineating the epistemic dimension of a state of exception than the notion of the configuration of facts, which Agamben borrows from Giambattista Vico. The regime of truth effectuates a political double bind, which Foucault defines as the totalization of power structures linked to the forms of individualization imposed by the state.[iv]

In English, the Foucauldian expression “order of the true” illuminates the intertwined processes of objective totalization and subjective individualization. On the one hand, the order in question refers to the epistemological domain, which qualifies certain discourses as true and differentiates them from false claims, conspiracy theories, fake news, and various forms of disinformation. On the other hand, this order also functions as an imperative, which compels individuals to not only passively accept the truths produced by the regime of power but also to actively demonstrate that their conduct conforms to these truths.

It is this dimension of government, which Foucault defines as a conduct of conduct, which is missing from Agamben’s celebrated analysis of the state of exception as a paradigm of government. In State of Exception, Agamben jettisons the problematic of “configuration of facts” to conceptualize modern structures of power in terms of the establishment “of a legal civil war that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system.”[v] Approaching the state of exception as a juridical rather than epistemological problem, this text largely abandons references to Foucault that proliferated in Homo Sacer. Instead, Agamben develops his engagement with Carl Schmitt to expand upon the paradox of sovereignty, which consists in suspending the validity of the law within the juridical order. It is precisely because sovereign power operates outside the juridical order and, at the same time, belongs to this order that it can deploy extrajuridical measures to ensure physical extermination of the enemy.

When President Obama ordered a drone strike, which killed two American citizens, Anwar al-Awlaki and his 16-year-old son, without due process, he legally placed himself outside the law, illustrating a complex topological relation operative in every state of exception. If Agamben’s work exerted such a profound influence on political and philosophical debates in the first two decades of the 21st century, it is because his theory of exception elucidated the complex topological figure of a threshold, which concerns the limit of the juridical order. The strategies of national security unleashed in the wake of September 11 – torture, indefinite detention of suspected terrorists without any charges, warrantless mass surveillance, denial of habeas corpus rights to Guantanamo prisoners, and Obama’s drone program that Noam Chomsky famously described as “the most extreme terrorist campaign of modern times” – served to demonstrate the existence of a lacuna between the law and its application.

Following the 2016 U.S. presidential election, however, a rapid succession of various emergencies – the media spectacle of a “collusion” between Trump and Kremlin, the Russian interference in American elections, the COVID-19 pandemic, the “national reckoning on race,” and the “worst attack on our democracy since the Civil War” (to quote President Biden’s hyperbolic characterization of the January 6 riot) – has significantly modified a state of exception in a manner that calls for a rethinking of Agamben’s paradigm. As the U.S. Attorney General Merrick Garland and the Secretary of Homeland Security Alejandro Mayorkas announced in 2021, the greatest national security threat is no longer posed by radicalized Muslim fundamentalists or foreign-born terrorists, but by domestic extremists. In this new configuration of facts, the principal objective of sovereign power no longer resides in the physical elimination of external enemies but consists in the surveillance, correction, and re-education of “the enemy within.” As a veteran media personality, Katie Couric, bluntly put it: “The question is how are we going to really almost deprogram these people who have signed up for the cult of Trump?”

Althusser’s “Symbolic Repression” and the Neutralization of Critique

Reformulating the problem in light of a distinction made in Louis Althusser’s seminal text on ideology, one could say that the contemporary state of exception does not primarily depend upon physical repression exercised by the Repressive State Apparatus (i.e., the army and the police) but rests on symbolic repression deployed by the Ideological State Apparatuses (i.e., the cultural establishment, the media, the educational system, the entertainment industry, etc.). An excision of errant opinions and dangerous ideas from the political discourse constitutes only a subsidiary aspect of symbolic repression. The main objective of the latter is to turn individuals into good or, as Foucault would have put it, governable subjects – if not by ideology, then through intimidation, financial repercussions (e.g., social media demonetization of controversial content), reputational damage, employment insecurity, and social ostracism.

As Althusser observes, the Ideological State Apparatuses “use suitable methods of punishment, expulsion, selection, etc. to ‘discipline’ not only their shepherds, but also their flocks.”[vi] Reading Foucault’s analyses of the pastoral power developed in his late-1970s lectures at the Collège de France, one cannot help but hear the echoes of Althusser’s allusion to the pastor-flock relationship. If the latter constitutes a paradigm of disciplinary power, which produces docile bodies, then it is tempting to consider the model of pastorship as a point of rapprochement between Althusser and Foucault whose intersecting philosophical itineraries were linked by personal friendship and intense intellectual rivalry. However, the analysis of pastor-flock relationship prompts Foucault to move beyond the disciplinary paradigm to explore a different model of power not dependent on corporal technologies. While pastoral power presupposes a relation of obedience, it does not manifest itself through the shepherd’s display of strength over the flock but through an endless application of care, of keeping watch, of directing the flock towards salvation.

The process of governmentalization of power (whereby an exercise of power takes the form of a conduct of conduct) constitutes a power of care in relation to the government by truth. As Thomas Lemke emphasizes, the defining trait of governmentality is to shepherd individuals in agreement with truths engendered by power. It is at this point that Foucault’s rapprochement with Althusser reemerges.[vii] In his late texts, Foucault delineates the operations of the regime of truth in unmistakably Althusserian terms: it is a form of power that makes individuals subjects by binding them to governable identities and subjecting them to the law of truth.[viii]

Now, this operation invariably gives rise to an emergence of a critique, which Foucault understands not in the Marxian sense of ideology critique or consciousness-raising, but in a general sense of the art of not being governed quite so much. In the context of pastoral power, which conceives of government as a spiritual art linked to the authority of the Church, a critique does not entail abandoning the idea of a truth as though it were nothing more than an illusion. On the contrary, Foucault makes clear that the critics of ecclesiastical rule returned to the Scriptures to decipher another kind of truth at odds with the one proffered by religious authorities. In this instance, a critical attitude was born out of an inquiry into a contradiction between a truth-as-dogma (authentic truth of the Scriptures) and specific acts of truth prescribed by ecclesiastical power (techniques of confession, examination, interviews). Hence, Foucault defines critique as “not accepting as true … what an authority tells you is true.”[ix] The two definitions of a critique are inextricable: “the art of not being governed quite so much” is only possible if the subject learns to untangle itself from a truth produced by the regime of power and to interrogate power’s effects on the discourses of truth.

To perpetuate the effects of power connected to the discursive regime, the modern liberal art of government must shepherd the governed away from critical practices. This is where the pleonasm “epistemic state of exception” manifests its explanatory power. Ideally, the regime of liberal democracy neutralizes critique via the noncoercive practice of government, which leads individuals to assume their freedom as subjects even as it transforms them into the objects of control. In a posthumously published text, What is to be Done?, Althusser hints at his own theory of exception by proposing that, in a normal historical epoch, the ruling class grounds its hegemony in free consent rather than violence: “When it happens, we have to do with a true ‘historical epoch,’ a ‘historical bloc’ that is normal, that is as it ought to be; and, in that case, the class in power can dominate the people by persuading it, by obtaining its accord, its free consent, by bringing it freely to accept the dominant class’s ideas and its own exploitation, hence its oppression.”[x] When the ruling class grounds its exercise of power in free consent of the governed, critique is neutered rather than prohibited. Good citizens are most welcome to complain about their rulers as long as they continue to dutifully elect them, pay their taxes, observe the government regulations, and participate in the obligatory ideological rituals.

Jason Barker effectively conveys the impotence of critique in bourgeois democracies from the perspective of the dominant class: “You, the people, have the right to air your views; and we, the ruling class, reserve the right to disregard them.”[xi] In the United States, this antiquated arrangement between the rulers and the ruled persists in the so-called progressive or democratic socialist circles. The progressive acolytes of the Democratic Party air their critical views without respite, threatening to “eat the rich” on Twitter, insisting that the government does not do enough to avert the climate catastrophe, and promising to “push Biden to the left.” The political elite has no reason to heed these ostensibly radical outbursts, however, because, at the end of the day, these avatars of critical Left will always vote for the Democratic Party’s candidates (“To save democracy from fascism!”), back intelligence agencies in their offensive against domestic extremism, and even plead for more corporate censorship to stop the spread of harmful disinformation. In this regard, neutered critique not only fails to undermine the power of the dominant class but is instrumental to cultivating the consent of good citizens whose “free agency” is correlative to their obedience.

Now, in the state of exception, which represents a deviation from a normal historical epoch, the ruling class is no longer content to passively tolerate the unsanctioned opinions of the governed. A recourse to symbolic violence becomes necessary to rein in the unpersuaded bad subjects who fail to “freely” embrace the hegemonic ideas and values. This does not mean that the Ideological State Apparatuses recede from view to let the Repressive State Apparatus handle the situation. On the contrary, the former respond to various emergencies by inventing and targeting new figures of extremism who are subject to symbolic repression rather than physical extermination. In the epistemic state of exception, these newly created monsters (e.g., stochastic terrorists, anti-vaxxers, various conspiracy theorists) are excluded from “truth activities” and deprived of the right to critique.

From Arendt’s “Possible Crime” to Stochastic Terrorism

The accelerated conversion of large swathes of the population into potential terrorists is evidenced not only by the unconstitutional practices of mass surveillance and censorship (which are here to stay regardless of how many whistle-blower reports and Twitter files confirm the lawlessness of national security apparatuses), but also by a redefinition of the word “terrorism.” Until very recently, for example, our post-democratic societies were completely unaware of the term “stochastic terrorism,” which was introduced by the apparatuses of security sometime in the 2010s. Unlike all the other, more familiar terrorist figures targeted by the state, a stochastic terrorist neither carries out nor calls for violence. Instead, this “enemy within” engages in a protected speech critical of the state, its institutions, and its competent-elites. In a recent invective against her conservative nemesis, Rep. Alexandria Ocasio-Cortez fulminates: “Every time that dude puts my name in his mouth … this is what stochastic terrorism is.” She elaborates: “it is like when you use a very large platform to turn up the temperature and target an individual until something happens and then when something happens, because it is indirect, you say ‘oh I had nothing to do with that.’”

The theoreticians (if I may call them that) of stochastic terrorism thus seek to foreground the relation between critical speech and conduct. In a very Foucauldian fashion, they understand the government of populations in terms of dictating a good type of conduct in conformity with the truth produced by the regimes of power. Once the people cease to heed the order of the true and start speaking errant truths, which are antagonistic to and irreconcilable with an authority, they become incapable of good conduct and then, as Ocasio-Cortez puts it, something bad might happen. Upon closer inspection, however, it becomes apparent that the concept of stochastic terrorism does not seek to delineate good and bad forms of conduct. In itself, a specific type of conduct – “targeted harassment,” for example – is neither good nor bad. The crusaders against stochastic terrorism cannot pass moral judgements on this type of behavior without first considering the values held by subjects who engage in targeted harassment. For this reason, Ocasio-Cortez’s understanding of stochastic terrorism appears incongruous with her political declarations. Did she not argue that the whole point of protesting is to make people uncomfortable? Indeed, it is but only for good subjects with correct values.

During the Trump era, for instance, impassioned pleas to aggressively accost the elected office holders were deemed virtuous. Rep. Maxine Waters explicitly encouraged people to “harass” Trump administration officials: “And if you see anybody from the Cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd. And you push back on them. And you get to tell them they’re not welcome anymore, anywhere.” In spite of turning up the temperature, however, Waters does not belong to the category of stochastic terrorists. Why? Because she is a good subject who loves American democracy, abhors MAGA extremism, and shares the prized values engendered by the hegemonic ideology. “Stochastic terrorism” thus functions as a relational concept, which does not define proscribed forms of conduct, but delineates a relation between behaviors and values.

Even though our discursive regime defines stochastic terrorism as a public demonization of a person or a group, it does not prevent individuals with good values from denouncing their ideological enemies as “extremists,” “fascists,” “insurrectionists,” “domestic terrorists,” “white supremacists,” and “treasonous Kremlin assets.” Such acts of public vilification are not deemed potentially dangerous because the good subjects who carry them out are steeped in the truth of the ideology of the dominant class, as Althusser would have put it. They comport themselves in accordance with this truth and thus cannot possibly commit extremist acts in the eyes of the state. In other words, the good subjects are free to criticize insofar as they do not engage in a critique. Individuals with bad values, on the other hand, cannot be expected to exercise their right to free speech and criticize their adversaries responsibly because they are not incorporated into a system of shared values, which conditions participation in a so-called democratic way of life.

In this regard, the concept of “stochastic terrorism” is a direct descendant of a much older concept of “possible crime” that, as Hannah Arendt explains in The Origins of Totalitarianism, is based on the logical anticipation of objective developments. Whereas the designation of suspected crime can only be applied to a few select individuals capable of committing a specific offense, the possible crime holds true for the entire category of undesirable subjects who have failed to assimilate to the totalitarian order and might partake in “a violent act, which is statistically probable but whose specifics cannot be predicted” (to quote one dictionary definition of stochastic terrorism). Totalitarian regimes radicalize the ideological distinction between good subjects and bad subjects to reclassify the latter as terrorists on the basis of unspecified future crimes that they may commit in a hypothetical scenario. In the words of General Pyotr Cherevin who presided over a secret police department (the Okhrana) in Imperial Russia under Alexander II, such objective enemies “may be innocent today but … will be guilty tomorrow.”[xii]

The twin concepts of the possible crime and stochastic terrorism serve to relativize constitutional rights and juridical freedoms. Civil liberties accorded to the good subjects become dangerous once they are granted to the bad subjects. This Arendtian analysis is congruent with Agamben’s understanding of the state of exception as a mechanism that converts democracies into totalitarian states. Indeed, Agamben faults Foucault for not relating his inquiry into biopolitics qua “care of life” to the analysis of totalitarianism that inscribes the totality of individuals’ lives within the state order. Following Arendt and Karl Löwith, Agamben accurately predicts that a politicization of seemingly neutral domains of life – individuals’ health, leisure, diet, friendships, sexual preferences, gender identities, their innermost thoughts and desires – leads to a total domination that makes absolute monarchies seem rather tame in comparison to our contemporary liberal states.

In the aftermath of COVID-19 outbreak, for instance, the biopolitical care of life became so closely intertwined with the questions of national security that the problem of protecting populations from the dangerous virus rapidly morphed into the problem of fighting terrorism. Confronted with vaccine-hesitant individuals, the apparatuses of security did not restrict themselves to persuading the public and providing health education on the benefits of mRNA vaccines. Instead, they responded by offering a radical redefinition of the term “anti-vaxxer,” adjusting the facts to authorize a repressive crackdown on the new public enemy. According to Merriam-Webster’s dictionary definition, the “anti-vaxxer” label is no longer limited to the individuals who reject the use of vaccines but includes anyone critical of “regulations mandating vaccination.” In other words, one can choose to take the COVID-19 vaccine, extol its effectiveness, encourage others to get vaccinated and still be categorized as an “anti-vaxxer” as long as one opposes coercion.

Following this reconfiguration of facts, the functionaries of national security swiftly acted to lump the “anti-vaxxers” into the same category as domestic terrorists. In the United States, at the time when the majority of unvaccinated Americans disproportionately consisted of working-class people of color, the informational apparatus repeatedly equated anti-vaxxers with radicalized Trump voters, white supremacists, and far-right nationalists. “Rioters and anti-vaxxers are cut from the same cloth,” cautioned one Washington Post op-ed, which speculates about “how many of the terrorists bothered to get their coronavirus vaccines.” Canadian Prime Minister Justin Trudeau, in turn, elevated this media talking point into a national policy, accusing “anti-vaxxer mobs” of “racist, misogynistic attacks” to suggest that a disagreement with a specific instance of statist coercion is rooted in the radical evil of fascism. In this regard, Agamben is entirely right to assert that the emergency measures implemented to address the COVID-19 crisis “transform, in effect, every individual into a potential plague-spreader, just as the orders against terrorism considered every citizen as a de facto and de jure potential terrorist.”[xiii]

The epistemic dimension of the state of exception is inseparable from what Jacques Rancière calls an ethico-police symbolization of a democratic being-together.[xiv] The epistemic and the ethical intersect at the point of consensus. On the one hand, consensus is an epistemological category indicating a general agreement about what is true. On the other hand, it is an ethical category designating a community bound by shared moral values. In consensus democracies, the errant subjects who do not share the values of the moral majority are excluded from the practices of epistemic cooperation. This is why Rancière maintains that consensus democracies are not democracies at all insofar as they substitute democratic politics with the police order, which qualifies some forms of speech as legitimate civil discourse and invalidates other forms of speech as extremist prattle. The epistemic state of exception is a paradigm of consensus democracy, which converts a democratic space of disagreement into a totalitarian order of the true wherein the familiar neocon maxim – “you are either with us or you are with the terrorists” – functions as a general principle of political co-belonging.



[i] Vighi borrows the expression “epistemic state of exception” from Ole Bjerg and Thomas Presskorn-Thygesen, “Conspiracy Theory: Truth Claim or Language Game?”, Theory, Culture & Society 34, no. 1 (2017), pp. 137-59.

[ii] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998), p. 17.

[iii] Retort, Afflicted Powers (London: Verso, 2005), p. 102.

[iv] Michel Foucault, On the Government of the Living (New York: Palgrave Macmillan, 2016).

[v] Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005), p. 2.

[vi] Louis Althusser, On the Reproduction of Capitalism (London: Verso, 2014), p. 244.

[vii] Thomas Lemke, Foucault’s Analysis of Modern Governmentality: A Critique of Political Reason (London: Verso, 2019).

[viii] Michel Foucault, “The Subject and Power,” in Beyond Structuralism and Hermeneutics (Chicago: University of Chicago Press, 1982).

[ix] Michel Foucault, “What is Critique?”, in The Essential Foucault, ed. Paul Rabinow and Nikolas Rose (New York: The New Press, 2003), p. 266.

[x] Louis Althusser, What is to be Done? (Cambridge: Polity, 2020), p. 34.

[xi] Jason Barker, “Translator’s Introduction,” in Alain Badiou, Metapolitics (London: Verso, 2005), p. xvi.

[xii] Hannah Arendt, The Origins of Totalitarianism (New York: Harvest, 1968), p. 426.

[xiii] Giorgio Agamben, Where Are We Now? (Lanham: Rowman & Littlefield, 2021), p. 15.

[xiv] Jacques Rancière, Dissensus (New York: Continuum, 2010).