Giorgio Agamben’s Homo sacer project has been one of the most unique and important in the last few decades of European philosophy. One of its core premises and a constant point of reference is Walter Benjamin’s lapidary statement that: “the tradition of the oppressed teaches us that the 'state of emergency' in which we live is not the exception but the rule. We must attain to a conception of history that is in keeping with this insight”(Benjamin 2007 pg248). Agamben’s project is a substantial attempt to attain such a conception and reading of history. There have been eight instalments so far including the supposedly final volume due out in translation later this year. Although the focus of each one of the series varies widely the figure of homo sacer (sacred man) is always present albeit in several different modalities. Specifically, homo sacer is a historical example taken from archaic Roman law and designates a person who cannot be sacrificed but can be killed by anyone. It is this particular iteration of homo sacer which this essay will focus on. More broadly it is the investigation into the concept of sacredness itself and its relationship to Law, sovereignty, the exception and freedom that orients much of Agamben’s research.
In the first and perhaps still most influential of the books in the series (Homo Sacer: Sovereign Power and Bare Life, 1998) the question regarding the sacredness of life and its relation to these other fields is only one part of a wider analysis that counterpoises the enigmatic status of the homo sacer to a complex topological and ontological analysis of the structure of sovereignty. In particular Agamben develops an understanding of the dialectic between the inside and the outside of law which he uses to draw inferences from a wide variety of historical and semantic spheres. Sovereign power, or more specifically the sovereign exception is evoked in relation to Michel Foucault's analysis of the emergence in the modern era of forms of political rationality that take natural life as its principle object; the so called development of biopolitics. Agamben's reading of this associates it strongly with a much older distinction in Aristotle's politics between zoē, the natural life common to all living things, and bios, a qualified 'form of life' specific to an individual or group.
The specifically political life of human beings is qualified and thus by this understanding constitutes a bios. Aristotle sharply distinguishes it from the life of the household (oikos) which deals with the maintenance of mere reproductive life, zoē, later to be identified by Agamben with "bare life". For Agamben then the object of biopolitcs which marks it out as a departure from juridical-institutional theories of the state and government is that rather than excluding zoē from its calculations it instead makes it the privileged focus of attention. Zoē moves so to speak from the household to the polis,where at its extreme limit it can take on the modality of homo sacer, a person from whom the Law has been withdrawn, divested of that form of political existence that distinguishes us from the beasts. The consequences of this shift are for Agamben - as they were for Foucault, crucial to the understanding of 20th century totalitarianism. Indeed the Italian philosopher pushes Foucault’s analysis in further radical directions by arguing for the centrality of the Nazi concentration camp as a paradigm for contemporary Western politics as a whole, with the denuded and brutalised figure of homo sacer at its heart. With a project of such scope, historical sweep and at times dark conclusions, it is all the more vital to look closely at the specific sources and readings with which Agamben begins.
Homo Sacer in Archaic Roman law
The first thing to note is the relative obscurity of Agamben's source where homo sacer first appears in the text. It appears in the work of the 2nd century grammarian Pompeius Festus in whose epitome of the encyclopaedic work of Augustan grammarian Verrius Flaccus he finds a figure of archaic Roman law that connects sacredness to a human life in the form of the homo sacer. The following definition of the sacred man appears under the lemma sacer mons, the hill a few miles outside the ancient city of Rome where the plebs retreated during their first secession. After defining it such Festus goes on to say:
"The sacred man is the one whom the people have judged on account of a crime. It is not permitted to sacrifice this man, yet he who kills him will not be condemned for homicide; in the first tribunitian law, in fact, it is noted that "if someone kills the one who is sacred according to the plebiscite, it will not be considered homicide." This is why it is customary for a bad or impure man to be called sacred". (De verborum significatione quoted in Agamben 1998 pg71)
The "first tribunitarian law" is most likely the declaration by the plebs described by Livy that their representatives the tribunes were to be considered sacrosanct (Livy, Ab Urbe Condita 2.33). The fragment itself contains very little regarding the secession itself aside from the aforementioned association of the sacer mons with the event. What is significant for Agamben is the definition of the sacred man rather than the establishment of the magistracy itself. At first glance the lemma seems to contain an obvious contradiction; that the thing which is sacred can be killed with impunity. It is this part of the definition that provokes the greatest confusion in light of the well-established understanding of the Roman ius divinum whereby a thing made sacred is passed over to the property of the gods and to interfere with it was strictly prohibited.
By way of laying the path for his own interpretation Agamben distinguishes two currents within the field of scholarship on the meaning of the homo sacer. The first group, including Theodor Mommsen, see in the sentence of sacratio a weakened and secularised residue of an archaic phase in which religious law was not yet distinguished from penal law and the death sentence appeared as a sacrifice to the gods (Agamben 1998, pg72). The second group he claims argue sacratio is an ancient form of consecration which is comparable to taboo. The sacred thing is both holy and an object of horror. The failure of these interpretations he claims is that neither fully accounts for both the ban on sacrifice and the unpunishability of killing the person declared homo sacer. For him this indicates that the life of homo sacer stands outside both divine and human law which in light of his arguments for the primacy of the relation of exception in Western politics, constitutes the homo sacer as a privileged historical phenomenon, one which like sovereignty stands on the extreme margins of the social order, neither fully inside nor outside. "It appears that we are confronted with a limit concept of the Roman social order that, as such, cannot be explained in a satisfying manner as long as we remain inside either the ius divinum or the ius humanum. And yet homo sacer may perhaps allow us to shed light on the reciprocal limits of these two juridical realms. ... we will try to interpret sacratio as an autonomous figure, and we will ask if this figure may allow us to uncover an originary political structure that is located in a zone prior to the distinction between sacred and profane, religious and juridical" Agamben 1998, pg74).
The intention then is clear; the homo sacer is of such interest because Agamben believes it provides a primordial historical example of the figure of bare-life / zoē which has become the principle object of modern biopolitical rationality; subject to the relation of exception; captured within the order by being excluded from it. Agamben then pushes the argument further by claiming that sacredness itself "is the originary form of the inclusion of bare life in the juridical order...Life is sacred only insofar as it is taken into the sovereign exception" (Agamben ibid pg85). That this example seems to implicate both human and divine realms in the dialectic and may have its roots deep within archaic European history only amplifies its significance as a possible confirmation of the claim made earlier in the book that the production of a biopolitical body is the original activity of sovereign power (Agamben ibid, pg6).These are all very big claims. That he can by this analysis implicate the plebs and their new magistracy within the functioning of the sovereign exception is also by no-means insignificant. The secessio plebis is after all one of the canonical events in the history of the development of Western popular democracy. Let us however look at some arguments against Agamben's interpretation of the sources in determining the character of homo sacer in the Roman example.
Just how much of an Exception is the homo sacer?
Agamben's reading of the sources regarding the significance of homo sacer is particular and has been challenged. In a recent paper Frederiek Depoortere has questioned whether the textural evidence supports the claim as to homo sacer's foundational political status. He cites other examples drawn from Pompeius Festus that show that the sacratio leges (sacred laws) were in force during the reign of Numa Pompilius (the legendary 2nd King of ancient Rome) and were evoked for particular crimes such as the removal of boundary stones. The transgressor according to Festus' lemma would be devoted to Jupiter and at another point he writes "when a child hits his parent, and when this one has cried, that the child will be devoted to the gods of the parents". Similarly Depoortere highlights Livy's writing on the so called Valerio-Horatian law of the mid-5th century BCE which had any person who offered injury to the tribunes of the people should not only be devoted to the Jupiter of the infernal regions but his property should similarly be sold at the temple of Ceres, Liber, and Libera. Similar punishments were meted out to those with designs on regal authority during the early Republic (Depoortere 2012 pg156).
The person deemed homo sacer is accordingly someone who has committed a heinous crime, one that threatens the community at a fundamental level. As the author quite pertinently points out these sorts of crimes have to do with transgressing fundamental boundaries and distinctions in the community; the spatial limits of the city, familial relations, the sanctity of the magistracies, etc. We can hear an echo in this description of Agamben's claim that homo sacer exists in a zone of indistinction, blurring boundaries, though in a different key. Drawing on the work of Rene Girard, Depoortere claims that what puts homo sacer outside the community is the challenge he poses to the "regulated system of distinctions in which the differences among individuals are used to establish their identity and mutual relationships" (Depoortere ibid pg158). By blurring these distinctions, by putting into question the foundations of the social order the homo sacer risks bringing violence upon the community. In every case however the author concludes that the attribution of sacratio is done in a religious context and as such the homo sacer cannot be understood in the primordially political fashion that Agamben suggests.
Agamben would no doubt object that this explanation does little to clarify why it is that the killing of homo sacer given the religious context is not considered nefas, a deadly crime. Certainly Depoortere's own explanation that homo sacer didn't represent a suitable sacrificial victim being "too much of an outsider and not enough of an insider" and thus available to be killed by anyone seems inadequate (Depoortere ibid pg159). Among earlier scholars who have commented on Festus' lemma Agamben associates W.Ward Fowler with the group who attribute sacer to an archaic form of consecration to the gods, analogous to taboo, but from which perspective it remains completely incomprehensible why anyone can kill homo sacer without being stained by sacrilege (Agamben 1998 pg73). While Fowler certainly does associate the homo sacer with more archaic forms of religiosity Agamben seems to pass over the account he gives of the different semantic associations of sacer in relation to the development of Roman state religion. Instead Agamben attributes to Fowler a certain "ambivalence of the sacred" which he claims has historically marked interpretations of social phenomena and in particular of the origin of sovereignty, constituting something of a scientific mythologeme (Agamben ibid, pg75).
To simplify somewhat, the ambiguity in question here is purportedly one in which in archaic societies the concept of taboo can be attributed to both things holy or impure. Agamben particularly attributes the genesis of this ambiguity to William Robertson Smith and his famous 'Lectures on the Religion of the Semites' (1889) where he writes of the two types of taboo that "in most savage societies no sharp line seems to be drawn ... and even in more advanced nations the notions of holiness and uncleanness often seem to touch (Smith 1889 pg152-53). Whether or not such an ambiguity has had the distorting effect on scholarship Agamben claims is a question I will leave aside. In any case Fowler's arguments in 'The Original Meaning of the Word Sacer' (1911) do not I would claim appear to depend on such an ambiguity. Of particular interest in his essay is the critical distinction he draws between "sacred to" and "devoted to" that makes a decisive difference to whether violation of the sacred thing is prohibited or not.
The distinction rests on the one hand on the better known function of sacer in the Roman ius divinum which was to indicate an object that was taken out of the profanum and passed over to that of the sacrum as property of a deity. This meaning however, as Fowler argues, is only intelligible in a definite sense in a period when there were already temples in which deities could dwell and enjoy the possession of their own property, made over to them by the state to do them honour and propitiate them (Fowler 1911, pg57). It is in this context that the term 'sacred to' is applicable, being bound up with the notion that certain objects were the explicit property of the gods and thus demanded at the very least special treatment and certainly not destruction. The question is then raised as to how such a term as sacer would function in Rome's early archaic period before there were such fixed temples and associates rites. In such circumstances Fowler speculates we might naturally look for a meaning of the same general type, but less accurately defined, and so to speak, less theological (Fowler, ibid). The meaning of sacer in this archaic period cannot he claims be associated with consecratio and the assignment of particular things to particular gods residing in particular places in the city. It would be more accurate in these circumstances to describe the homo sacer as 'devoted to' the gods. Or as Fowler put it: "accursed and left to a deity to avenge himself on if he so pleased". And as he was not in any true sense the property of the god, or valued by him as such, like objects called sacra under the religious law, anyone putting him to death would not be committing what was nefas (Fowler ibid pg58).
This distinction which does not rely on an ambivalence between the sacred and the unclean also goes some way to explaining those sources mentioned above where it appeared individuals were being "sacrificed" to particular gods in the early republican period. Since in most cases the gods evoked were those of the infernal regions which did not have their own regular ordered altar sacrifice the effect would be equivalent to the more archaic meaning cited above whereby the victim is cast out or accursed, left to their fate but certainly not made sacred to the god. While Fowler certainly raises the spectre of the tabooed man in relation to the most archaic forms of sacratio he is principally concerned with the sources that reveal its usage in the early Republic and the apparent confusion of later Roman commentators. His analysis thus puts into question Agamben's claim that sacratio represents a "double exception", both from the ius humanum and the ius divinum (Agamben 1998 pg82). Certainly the exclusion from the former seems clear but Fowler's distinction still allows that the person made sacer is in principle cast out of the human community and left to the gods i.e. handed over to their sole jurisdiction. This is however not in the sense that they are made sacred to or the property of those gods, but rather in the second meaning of devotio, devoted to and thus left at their mercy. One can see another example of this in the story of Decius in Livy (Ab urbe condita 8.9) who had himself devoted to the gods of the earth and the infernal regions before throwing himself into battle. This second reading does as we've seen admit the killing of the sacred man by anyone, clarifying Festus' lemma and putting into question whether the homo sacer is truly an example of the kind of relation of exception that Agamben argues it is.
Finally, we find another reference to the distinction between sacratio and devotio in that same work by William Robertson Smith which Agamben cites as being the source of the ambivalence mythologeme. In a passage also referred to by Agamben Smith states that in ancient Semitic communities in addition to sometimes consecrating garments, jewels or other objects, another usage "is the ban (Heb. herem) by which impious sinners, or enemies of the community and its god, were devoted to utter destruction. The ban is a form of devotion to the deity, and so the verb "to ban" is sometimes rendered "consecrate" (Micah iv.13) or "devote" (lev.xxvii. 28 sq). But in the oldest Hebrew times it involved the utter destruction, not only of the persons involved, but of their property; and only metals, after they had passed through the fire, were added to the treasure of the sanctuary (Josh. vi 24, vii. 24; 1 Sam. xv.). Even cattle were not sacrificed, but simply slain, and the devoted city must not be rebuilt (Deut. xiii. 16; Josh. vi. 26). (Smith 1927, pg 454). Here again we can see the separation between 'to devote' and 'to consecrate' - although not as well defined as they are in Fowler’s paper; they are terms that while distinct can have points of contiguity giving rise to aporias in interpretation. And while Smith does go on to draw comparison between the ban and the taboo it is not necessary to accept this ambiguous interpretation for the former distinction later developed by Fowler between sacratio and devotio to have significance. In any case it is sufficient to cast doubt on Agamben’s interpretation.
...but Sacredness Remains
In summary I believe that the confusion Agamben alludes to around the character of the homo sacer which affected both the commentators of the early empire and some modern commentators was likely down to a failure to fully take account of how the semantics of sacer had shifted during the development of the ius divinum. This is particularly understandable in the case of the ancient commentators without access to modern historical resources and hermeneutic techniques. Out of an archaic unstructured religiosity a more ordered state religion emerged involving fixed temples, rites and priests associated with particular deities to which property could be consecrated. By the end of the republican period this later development of the meaning of sacer in the ius divinum had come to prevail and coupled with the by then considerable development and secularisation of Roman law the more archaic meaning had become obscured. Thus it was opaque to a man like Macrobius writing in the early fifth century CE how a thing rendered sacer could also be despoiled by anyone (Macrobius Saturnalia 3.7.5-7).
It should be noted that even if the significance of the homo sacer as a specific historical phenomenon were to be diminished in Agamben's exposition it would not however render invalid his subsequent arguments regarding the significance of the concentration camp or other examples where the dialectic between life and law are articulated. This is because Agamben means to make the archaic Roman figure of homo sacer only one example - albeit perhaps his paradigmatic example at this point in the investigation - of the core relation between life and law, zoē and bios, the inside and the outside. One could easily imagine the gap being filled by the figure of the muselmann who in Remnants of Auschwitz (1999) represents a similarly acute intersection between sovereign power and bare-life. Such are the vicissitudes of the genealogical method which by articulating paradigms by way of moving from example to example is not as susceptible to refutation of this sort as other methods which also rely on empirical historical analysis.
If the homo sacer example from archaic Roman law is not a primordial instance of sacredness marking the concrete appearance of bare-life caught the grip of the sovereign exception, then that might well undermine some of the historiographic impact of Agamben's thesis; at least within the context of the first book of the series. But it would not go far in challenging the core topological arguments regarding the relation of sovereign power to life and Law, nor would it cast a shadow over the broader project of examining the significance of sacredness to the organisation and development of Western civilization. This becomes clearer in the later books in the series and especially in The Kingdom and the Glory (2011) where Agamben undertakes a startlingly detailed analysis of the significance of the Christian Trinitarian dogma for the development of secular notions of economy and government. In this and other volumes he argues that sacredness should be understood as a signature for a form of social ordering, one which can be traced and examined not just within religion but within the secular political and economic institutions of the West. It is this tantalizing method, which draws lines from archaic Europe to modern globalized capitalism that makes reading Giorgio Agamben such a fascinating and challenging experience.
Agamben,Giorgio 1998 - Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, Stanford, California)
Agamben,Giorgio 1999 - Remnants of Auschwitz: The Witness and the Archive (London, MIT Press)
Benjamin,Walter 2007 - Reflections (New York, Schocken Books)
Depoortere, Frederiek 2012-Reading Giorgio Agamben's Homo Sacer with René Girard,Philosophy Today, Vol. 56, No. 2, pg154-163
Fowler,W.Warde 1911 - The Original Meaning of the Word Sacer, The Journal of Roman Studies Vol 1 pg57-63
Smith,W.Robertson 1927 - The Religion of the Semites (London, A.& C. Black)