The Person (Eclipsed)

 

The Latin Persona originally meant mask, the etymology of which derives from the ancestor’s mask of wax that would hang in the atrium of patrician families homes in Rome, thus marking an individual's belonging to a gens – a word that implies equally heredity and continuity of persons - and also coming to represent an individual's public 'personality' or political standing as a free man in general. The struggle for recognition is thus ultimately the struggle for a mask, a public face, behind which we mistakenly assume is the "real" or at least private person. In truth this distinction is constitutive of personhood per se, without which we are just an accumulation of facts.

Today’s anxiety and conflict ridden culture of identity politics is played out amid an epoch defining collapse in this distinction. Until the age of industrialisation and mass democracy, to be a non-person lacked the abyssal connotations associated with it today, where such a status is almost a fate worse than death, and is synonymous with slavery or destitution of the most extreme kind. Whereas in the Middle-Ages a non-person in the political sense could even be said to possess a kind of freedom which has almost entirely disappeared from the modern world, since without the burden to have a public – which is to say a political – face, they would be left to a solely private existence in the economic and moral sphere. 

Not so for the subjects of contemporary Western culture for whom even the lowest are expected to piece together for themselves a public mask from out of the whirlwind of possible identities and cultural accoutrements. Indeed, modern identity is so fraught precisely because it lacks the constitutive split which personhood formerly contained. Now, not only are we meant to deny our public self as having such a mask like quality, but we are also - by means of the ubiquity of invasive digital technologies – denied any private realm or possible realm of private freedom independent from public obligations, free from the need to permanently ‘show face’.

Unlike in ancient times when the impossibility of ever fully identifying with one’s mask was bound up with the tension and efficacy of public representation, today one fears more than anything else ‘letting the mask slip’. What could be revealed by such a slip? Surely not the humble truth of the private person; the one who goes about their humdrum existence, plagued by the petty irritations and misfortunes we all suffer in order to survive. Since such a difference is denied by modern identity the only revelation such a slip could cause is that of revealing another mask, a more primordial or fundamental mask; the true mask perhaps, to which can be attributed the person’s true intentions. 

Modern identity thus retains a strong notion of univocity or totality within it, the downside of which is this deep suspicion of private life, of opacity, of shadowy corners where intentions and motivations are not entirely illuminated. Think of the public opprobrium directed at celebrities when they are revealed to be rather different than the on screen characters they play; a contemporary stupidity that stands in stark contrast to the artistic representations of actors from the ancient world, sitting in contemplation of their masks and the roles they choose to play. For us Moderns the world behind the mask - and even more so, behind the eyes - is a source of nightmare fuel. 

That this sphere of life, this realm of non-personal freedom, is perhaps the wellspring of our differentiating power – our radical potential as human beings to create for ourselves – means that the rise of identity and the corresponding eclipse of personhood (and character, but that’s another story), is also a sad tale of the overthrow of human freedom. Woe to thee who is secure in their identity, for they will never have the joy of playing a role well. And woe to thee who are insecure, desperately grasping at the vast menu on offer and finding nothing that seems to fit. And why should it fit? Since we are always other to ourselves, always at the mercy of that quantum of doubt; our own words sound like they are only being spoken through us, and we mutely acknowledge the certainty that there can be no certainty. The only way out of this impasse is to retain for ourselves, as an ethos, the radical potentiality that private life possesses. The withdraw from the public square into otium, into the boundless Night of interior life can be as liberatory as any mass mobilisation or protest movement. Guard it jealously! Or as Hegel puts it:

“The human being is this Night, this empty nothing which contains everything in its simplicity – a wealth of infinitely many representations, images, none of which occur to it directly, and none of which are not present. […] We see this Night when we look a human being in the eye, looking into a Night which turns terrifying. [For from his eyes] the night of the world hangs out toward us”.

By separating ourselves from each other with screens we neutralise this revelation, this Night that confronts us through the gaze. And in doing so we forget our own comforting darkness, and thus further accelerate the death of personhood.

The Weinstein and Westminster Scandals Should Make us Reflect on the Connection Between Power and Sexual Violence (2022 Redux)

 

2022 Introduction:

Not the snappiest of titles. This is the third in a series of "redux" posts republishing material which originally appeared on the Spectre-Online zine. This one from 2017 responds to the series of sexual abuse scandals, which in that darkest of years were seemingly ever-present in the news. What this essay argues for is a sort of political ontology of abuse, which tracks mass instances of sexual violence to institutional and cultural arrangements where relations of domination are prevalent. I begin with the news stories around Harvey Weinstein and other recent sexual abuse scandals before jumping to the historical example of slavery and the long shadow that institution casts over our understanding of domination and systemic violence. Then, in a form of argument one could call the Great in the Small I try to show how our commonplace thinking  about slavery (and by implication freedom too) masks what would be a more profound understanding of how power and domination function in the era of global governance.

Giorgio Agamben's writing on the significance of economy (the Oikos or household government) becoming the principle form of Western power, guides much of this analysis, as does my reading of nominally less radical thinkers like Philip Pettit and Quentin Skinner. The latter's concept of Neo-Roman freedom (or freedom as non-domination), which builds from an analysis of liberty and slavery in the ancient world, is I think a very useful one. At the time I was reading their work alongside the later Foucault, with all its fascinating takes on the government of self and others in Greco-Roman culture. But alongside the minutiae of Greek political education or Roman household management I was also - and still am - trying to think about these problems of social and political ontology from the perspective of globalised humanity.

The term one-world governance (not government!) is one I began using around this time. There is something of the provocation in it, insofar as it bears more than a passing resemblance to a common trope in conspiracy theories. The point of using it is to make a claim for a kind of negative universality, where the pure relation of domination (between parent and child) is potentially generalised by the total depoliticisation and economisation of humanity. That's the apocalyptic bit. What we are increasingly witnessing now as that system of governance  continues its collapse, is the full actualisation of the global civil war which has been gnawing at the margins of our world for decades. What will become of the eternal problem of domination and violence in human life when the institutions of the West ,which have now lost all legitimacy, collapse into the void which they have created?

 

(2017 text)

1). What started in October with the rapid fall of a once untouchable movie mogul has grown in the intervening weeks into a full blown crisis for institutions across Britain and the US. The British Prime minister has had to hastily convene cross party meetings and cobble together a semblance of an HR system at Westminster after a series of accusations against MPs and ministers from both sides of the house. Her defence secretary has had to resign after revelations of inappropriate advances toward journalists and lewd comments to one of his own female MPs. Her first secretary of state is also under investigation. While in the US, allegations against Harvey Weinstein ranging from aggressive propositioning to rape continue to accumulate.

The actress and producer Brit Marling wrote a powerful account in The Atlantic of her experiences with the mogul: "I, too, sat in that chair paralyzed by mounting fear when he suggested we shower together. What could I do? How not to offend this man, this gatekeeper, who could anoint or destroy me"? The scandal across the pond has now claimed the career of Kevin Spacey and has expanded to encompass predictable questioning over the peculiarities of the film industry; its glamour, its shallowness, its obsession with young female flesh, often paired with less than youthful male co-stars. The same form of questioning was heard after the abuse perpetrated by Jimmy Savile was exposed in the UK, and has often been raised regarding the abuse carried out by religious institutions and care homes like Haut de la Garenne.

Given the breadth of institutions involved,  terms like sleaze or sex scandals that have in the past been used to refer to such revelations hardly seem appropriate. It's also worth remembering that this is only the latest salvo in the now permanent crisis of British institutions embroiled in accusations of systematic sexual abuse and cover-ups. The expression 'Sexual Abuse Scandal 'might as well be built in as an autofill for newspaper headline writers. And yet despite the near ubiquity of abuse revelations on the contemporary social landscape little is done to try and draw the commonalities together. We walk dumbfounded from one crisis another, each time raising up the same sense of shock and surprise. Perhaps the subject is just too large, and the issue of sexual violence too ingrained in the dark corners of human societies to be worth treating at a general level.

Certainly it seems that way in the case of the UK government's unwieldy public enquiry into historic sexual abuse allegations, which has had a turnover of leadership comparable to many Premier League football clubs. Framed in the way it has been, there is something almost inevitably self-defeating about its scope. How can an enquiry, which in its range and manpower becomes an institution in its own right, be able to investigate, appraise and recommend remedy for abuses committed in seemingly every type of institution in the land? Since the scandals in Westminster and Hollywood have predominantly involved the abuse of adult women the focus has understandably been on the issue of sexism and misogyny; just as in the case of Savile and child abuse in the Church the focus has been on paedophilia. I wonder though if there's not a more general way of capturing an important aspect of all these cases from Weinstein to Westminster, from the Catholic Church to care homes. Why not talk about relations of domination and their direct link with sexual abuse?

2). Our understanding of domination is strongly conditioned by the historical legacy of slavery. A dominated person is someone in chains, forced to work under threat of death. Their status is that of property, owned by a master and disposed of as they see fit. Slavery is also a complex institution requiring the collaboration and complicity of wide sections of the society in which it exists. Its eventual abolition across much of the developed world in the 18th and 19th centuries was due to multiple factors, only a few of which involved what we might now call "changes in attitudes". Since we tend to associate relations of domination with historical slavery and its outward appearance it has taken a long time for the issue of modern slavery to be taken seriously. Only in 2015 did the UK bring in the Modern Slavery Act which while being a step in the right direction of recognising modern relations of domination, in practice merely reiterates the common understanding of domination as "servitude and forced labour". It does little to break down precisely what constitutes a basic condition of servitude.  I'm bringing up slavery as it represents the most extreme example of a relation of domination. However unless we have an account of precisely what a relation of domination actually is in itself we won't be able to recognise less extreme forms, which I suggest are much more prevalent.

The Canadian philosopher Philip Pettit, drawing on the ancient (specifically Roman) understanding of domination cited three criteria for a person to be in such a relation. A person dominates another if:

-They have the capacity to interfere.

-On an arbitrary basis.

-In certain choices that the other is in a position to make.

This is a useful albeit somewhat formal definition, not least as it doesn't depend on the slave/freeman distinction. It also emphasises that it is the capacity to interfere, not actually occurring interference that is the dominating condition. By this account a person could be in a relation of domination relative to one person or group but not to another, and perhaps only within a particular field of choices. Think about Weinstein and Brit Marling again. As an aspiring actress and screenwriter her field of possibility crossed over with his field of influence. Relative to her he was "...this gatekeeper, who could anoint or destroy me". The language here is not an accident. The power to anoint or destroy, to bind or loose, is symbolic of power at its most dominating. Think too about the power Jimmy Savile held over the children he abused and to an extent over the staff at the BBC, who, relative to him - the big star - were mere flunkies.

Another element of dominating relations which Pettit discusses is the absence of contestation. Put broadly, contestation is the ability of a person to find redress for an abuse, either through the courts, or through extra-legal means such as disciplinary proceedings or even local forms of community or family resolution. The capacity for contestation is a brake on the ability of the master to do what he wants with impunity (his arbitrium in the Latin understanding). Absence of contestation is a major contributing factor to the ability of a person to interfere with another on an arbitrary basis. There is after all nothing to stop them. Even in the presence of nominal procedures for redress, the ability of a person to challenge abusive behaviour can be thwarted by prejudice, the reluctance of others to assist owing to the influence of the perpetrator, or structural reasons which shield powerful people from the consequences of their actions.

These facts serve to remind us that relations of domination do not exist in isolation. Like the historical institution of slavery they require the active collaboration and complicity of a host of others. Think about how many people turned a blind eye to the behaviour of Weinstein. Think about the cover-ups and the advice given to women not to pursue complaints against high value stars and officials, or of the care home staff and police who refused to the believe the testimony of victims. And think also of the capacity rich and powerful people have to pay off complainants, to keep their abuse out of the public domain. Where money and influence are involved the network of power extends to the potential legal repercussions against those who speak out. And in a world where the media walk in step with politicians and the superrich, the threat of having one's life torn apart by their attack dogs is all too real.

There are often too many parties interested in seeing the structures of power which allow sexual abuse to remain undisturbed. For instance, to question how Savile was able to operate with impunity is to question the nature of celebrity and the role a monolithic institution like the BBC or Fox News (which has also been mired in scandal) has in raising them up. To question the power of politicians to abuse their staff similarly puts the whole form of parliamentary power under the microscope. At least it should, if the journalists involved were not also polluted by the same toxic material. A few individuals might quickly be made example of, if only to appease the sense of outrage and give the establishment time to reorientate itself; to put in more procedures and ensure the machine keeps on turning. Risk management, not justice, is the order of the day.

          3). The Romans had two ways of conceiving relations of domination. Where the power in question related to public power, such as the State or its institutions, they used the term Imperium, from which we receive the words empire and emperor. Where the power in question was private such as the family, or in the modern world a private corporation, the term used would be dominium, which relates to the domus, the home and consequently to notions of household management and property. It is the latter term from which we get our modern lexical understanding of slavery as related to private ownership and property rights more generally. This is not the place to elaborate on the complex genealogy of these concepts and how they have impacted on modern Law and our experience of power in social life. What seems clear, however, is that in the contemporary era the distinction between private and public power seems less and less tenable. The state and the non-state are no longer divided down lines which would be recognisable even to people living a century ago. The influence of transnational forms of governance such as the EU, IMF, the World Bank and huge communications and media corporations like Google, Facebook and News International threatens the centrality of the nation state as the key operator in political life.

           Another problem is that liberalism has tended to focus on the threat of state interference (imperium) at the expense of seeing how private domination, particularly that of large corporations has grown exponentially in the post-war era, given impetus by the developments in communications technologies and the internet. The global dominance of economy in human affairs means that one single form of governance, originating in notions of household management (combining the Roman domus with the Greek oikos) now holds sway. No longer does the State attempt to hold back the violence of the market, and no longer is private economy a bulwark against interference by the State. Under global capitalism State and market, public and private, operate as two elements of the same power. More and more of us today are subject to dominating relations produced by this total global economy, which sees everything and everyone in terms of measurable, calculable units.

Slavery, the most extreme form of domination has since the beginning been associated with sexual violence. It flows directly from the status of a person as the property of another to be enjoyed as they see fit. Sexual violence was routinely deployed against slaves of both sexes by colonialists in the Caribbean and slave owners in the United States. In the ancient world the master's sexual use of his slaves was a natural consequence of their thing-like status. Where restrictions on the sexual abuse of dominated persons have historically existed they have tended to take the form of appeals to the moral character of the master rather than the humanity of the victim. Codes of chivalry, notions of nobility or virtu, religious commitments and other such regimes have often been the sole restraint to unfettered rapine in peacetime as much as war.

In the Oneirocritica of Artemidorus, a compendium of dream interpretations written in the 2nd and 3rd centuries AD, it is considered a positive portent if the master dreams of sexually using his slaves, since it shows him deriving satisfaction from his property. Wherever relations of domination exist we find sexual violence, not because the absence of restraint allows pre-existing violent desires to go unchecked, but because such relations in themselves produce that violence. In a condition of domination my will is absent, completely or partially consumed by the other. What I want or don't want is irrelevant.  As Brit Marling wrote: "Consent is a function of power. You have to have a modicum of power to give it". Dominating power by contrast, whether by an individual, a bureaucracy or a State, is ultimately domination over the ability to refuse, to say no. Under domination one cannot refuse to comply. And under such conditions my body and person are available for use by the one who wields power.

                It's clear that the position of Brit Marling and of Westminster staffers, or even the victims of Savile was not that of slaves, but they were within relations of domination to varying degrees; limited, but enough to allow abuse to occur under certain circumstances. If this is the case we should then acknowledge that domination exists on a spectrum that correlates with an increased risk of abuse.  The thing-like quality of a person tracks with perfect symmetry this spectrum of relations of domination. The more dominated a person is - the more thing-like they become - the more their body is rendered as something for the master to take pleasure from as they desire. Sexual possession of the dominated body is not a pathology external to power, it is its most visceral sign. In an era when the household, the domus, the oikos, has become the model for globalised humanity, it is worth remembering that it is in the house that we find the most common and most acute relation of domination; that between parent and child. And it is also worthwhile remembering that of all human institutions it is within the household that most sexual violence takes place. Only in a return to politics, in opposition to globally triumphant neoliberalism, might humanity start to take the problem of domination in wider society seriously again; to see in every accumulation of power the real possibility of violence and to cut it off at the root, before the victims pile up.

Topographies of the Sacred: Giorgio Agamben's Roman Homo Sacer. A short critique of the sources

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 20^th 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 2^nd 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)