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.
References
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)
