The Omnibus Homo Sacer
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ius civile and ius honorarium, that is, to the law introduced by the magistrate to temper the excessive generality of the norms of civil law.
In its technical expression in the law of the Roman court, the exceptio thus takes the form of a conditional negative clause inserted between the intentio and the condemnatio, by means of which the condemnation of the defendant is subordinated to the non existence of the fact excepted by both intentio and condemnatio (for example: si in ea re nihil malo A. Agerii factum sit neque fiat, “if there has not been malice”). The case of the exception is thus excluded from the application of the ius civile without, however, thereby calling into question the belonging of the case in point to the regulative provision. The sovereign exception represents a further dimension: it displaces
a contrast between two juridical demands into a limit relation between what is inside
and what is outside the law.
It may seem incongruous to define the structure of sovereign power, with its cruel
factual implications, by means of two innocuous grammatical categories. Yet there is a case in which the linguistic example’s decisive character and ultimate indistinguishability from the exception show an unmistakable involvement with the power of life and death. We
refer to the episode in Judges 12: 6 in which the Galatians recognize the fleeing Ephraimites, who are trying to save themselves beyond the Jordan, by asking them to pronounce
the word “Shibboleth,” which the Ephraimites pronounce “Sibboleth” (“The men of
Gilead said unto him, ‘Art thou an Ephraimite?’ If he said, ‘Nay’; then they said unto
him, ‘Say now Shibboleth’: and he said Sibboleth: for he could not frame to pronounce
it right. Then they took him, and slew him at the passages of Jordan”). In the Shibboleth, example and exception become indistinguishable: “Shibboleth’’ is an exemplary exception
or an example that functions as an exception. (In this sense, it is not surprising that there is a predilection to resort to exemplary punishment in the state of exception.)
1.5. Set theory distinguishes between membership and inclusion. A term is
included when it is part of a set in the sense that all of its elements are elements
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of that set (one then says that b is a subset of a, and one writes it b a) . But a term may be a member of a set without being included in it (membership is,
after all, the primitive notion of set theory, which one writes b a), or, conversely, a term may be included in a set without being one of its members. In
a recent book, Alain Badiou has developed this distinction in order to translate
it into political terms. Badiou has membership correspond to presentation, and
inclusion correspond to representation (re-presentation). One then says that a
term is a member of a situation (in political terms, these are single individuals insofar as they belong to a society). And one says that a term is included in a situation if it is represented in the metastructure (the State) in which the structure of
the situation is counted as one term (individuals insofar as they are recodified by
the State into classes, for example, or into “electorates”). Badiou defines a term
as normal when it is both presented and represented (that is, when it both is a
member and is included), as excrescent when it is represented but not presented
(that is, when it is included in a situation without being a member of that situ-
ation), and as singular when it is presented but not represented (a term that is a member without being included) ( L’être, pp. 95–115).
What becomes of the exception in this scheme? At first glance, one might
think that it falls into the third case, that the exception, in other words, em-
bodies a kind of membership without inclusion. And this is certainly Badiou’s
position. But what defines the character of the sovereign claim is precisely that
it applies to the exception in no longer applying to it, that it includes what is
outside itself. The sovereign exception is thus the figure in which singularity
is represented as such, which is to say, insofar as it is unrepresentable. What
cannot be included in any way is included in the form of the exception. In Ba-
diou’s scheme, the exception introduces a fourth figure, a threshold of indistinc-
tion between excrescence (representation without presentation) and singularity
(presentation without representation), something like a paradoxical inclusion of
membership itself. The exception is what cannot be included in the whole of which
it is a member and cannot be a member of the whole in which it is always already
included. What emerges in this limit figure is the radical crisis of every possibility of clearly distinguishing between membership and inclusion, between what is
outside and what is inside, between exception and rule.
א Badiou’s thought is, from this perspective, a rigorous thought of the exception.
His central category of the event corresponds to the structure of the exception. Badiou
defines the event as an element of a situation such that its membership in the situation is undecidable from the perspective of the situation. To the State, the event thus necessarily appears as an excrescence. According to Badiou, the relation between membership and
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inclusion is also marked by a fundamental lack of correspondence, such that inclusion
always exceeds membership (theorem of the point of excess). The exception expresses
precisely this impossibility of a system’s making inclusion coincide with membership, its
reducing all its parts to unity.
From the point of view of language, it is possible to assimilate inclusion to sense
and membership to denotation. In this way, the fact that a word always has more sense
than it can actually denote corresponds to the theorem of the point of excess. Precisely
this disjunction is at issue both in Claude Lévi-Strauss’s theory of the constitutive excess of the signifier over the signified (“there is always a lack of equivalence between the two, which is resolvable for a divine intellect alone, and which results in the existence of a
superabundance of the signifier over the signifieds on which it rests” [Introduction à
Mauss, p. xlix]) and in Émile Benveniste’s doctrine of the irreducible opposition between
the semiotic and the semantic. The thought of our time finds itself confronted with the
structure of the exception in every area. Language’s sovereign claim thus consists in the
attempt to make sense coincide with denotation, to stabilize a zone of indistinction
between the two in which language can maintain itself in relation to its denotata by abandoning them and withdrawing from them into a pure langue (the linguistic “state of exception”). This is what deconstruction does, positing undecidables that are infinitely in excess of every possibility of signification.
1.6. This is why sovereignty presents itself in Schmitt in the form of a de-
cision on the exception. Here the decision is not the expression of the will of a
subject hierarchically superior to all others, but rather represents the inscription
within the body of the nomos of the exteriority that animates it and gives it
meaning. The sovereign decides not the licit and illicit but the originary inclu-
sion of the living in the sphere of law or, in the words of Schmitt, “the normal
structuring of life relations,” which the law needs. The decision concerns neither
a quaestio iuris nor a quaestio foeti, but rather the very relation between law and fact. Here it is a question not only, as Sc
hmitt seems to suggest, of the irruption
of the “effective life” that, in the exception, “breaks the crust of a mechanism
grown rigid through repetition” but of something that concerns the most inner
nature of the law. The law has a regulative character and is a “rule” not because
it commands and proscribes, but because it must first of all create the sphere of
its own reference in real life and make that reference regular. Since the rule both stabilizes and presupposes the conditions of this reference, the originary structure of the rule is always of this kind: “If (a real case in point, e.g.: si membrum
rupsit), then (juridical consequence, e.g.: talio esto),” in which a fact is included in the juridical order through its exclusion, and transgression seems to precede
and determine the lawful case. That the law initially has the form of a lex talionis
( talio, perhaps from talis, amounts to “the thing itself ”) means that the juridical
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order does not originally present itself simply as sanctioning a transgressive fact
but instead constitutes itself through the repetition of the same act without any
sanction, that is, as an exceptional case. This is not a punishment of this first act,
but rather represents its inclusion in the juridical order, violence as a primordial
juridical fact ( permittit enim lex parem vindictam, “for the law allows equitable vengeance” [Pompeius Festus, De verborum significatione, 496.15]). In this sense, the exception is the originary form of law.
The cipher of this capture of life in law is not sanction (which is not at all
an exclusive characteristic of the juridical rule) but guilt (not in the technical
sense that this concept has in penal law but in the originary sense that indicates
a being-in-debt: in culpa esse) , which is to say, precisely the condition of being included through an exclusion, of being in relation to something from which
one is excluded or which one cannot fully assume. Guilt refers not to transgression,
that is, to the determination of the licit and the illicit, but to the pure force of the law, to the law’s simple reference to something. This is the ultimate ground of the juridical maxim, which is foreign to all morality, according to which ignorance
of the rule does not eliminate guilt. In this impossibility of deciding if it is guilt
that grounds the rule or the rule that posits guilt, what comes clearly to light
is the indistinction between outside and inside and between life and law that
characterizes the sovereign decision on the exception. The “sovereign” structure
of the law, its peculiar and original “force,” has the form of a state of exception
in which fact and law are indistinguishable (yet must, nevertheless, be decided
on). Life, which is thus obliged, can in the last instance be implicated in the
sphere of law only through the presupposition of its inclusive exclusion, only in
an exceptio. There is a limit-figure of life, a threshold in which life is both inside and outside the juridical order, and this threshold is the place of sovereignty.
The statement “The rule lives off the exception alone” must therefore be
taken to the letter. Law is made of nothing but what it manages to capture in-
side itself through the inclusive exclusion of the exceptio: it nourishes itself on this exception and is a dead letter without it. In this sense, the law truly “has no
existence in itself, but rather has its being in the very life of men.” The sovereign
decision traces and from time to time renews this threshold of indistinction
between outside and inside, exclusion and inclusion, nomos and physis, in which life is originarily excepted in law. Its decision is the position of an undecidable.
א Not by chance is Schmitt’s first work wholly devoted to the definition of the
juridical concept of guilt. What is immediately striking in this study is the decision with which the author refutes every technico-formal definition of the concept of guilt in favor of terms that, at first glance, seem more moral than juridical. Here, in fact, guilt is (against
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the ancient juridical proverb “There is no guilt without rule”) first of all a “process of inner life,” which is to say, something essentially “intrasubjective,” which can be qualified as a real “ill will” that consists in “knowingly positing ends contrary to those of the juridical order” ( Über Schuld, pp. 18–24, 92).
It is not possible to say whether Benjamin was familiat with this text while he was
writing “Fate and Character” and “Critique of Violence.” But it remains the case that
his definition of guilt as an originaty juridical concept unduly transferred to the ethico-religious sphere is in perfect agreement with Schmitt’s thesis—even if Benjamin’s defini-
tion goes in a decisively opposed direction. For Benjamin, the state of demonic existence
of which law is a residue is to be overcome and man is to be liberated from guilt (which
is nothing other than the inscription of natural life in the order of law and destiny). At the heart of the Schmittian assertion of the juridical character and centrality of the notion of guilt is, however, not the freedom of the ethical man but only the controlling force of a sovereign power ( katechon), which can, in the best of cases, merely slow the dominion of the Antichrist.
There is an analogous convergence with respect to the concept of chatacter. Like
Benjamin, Schmitt deatly distinguishes between chatacter and guilt (“the concept of
guilt,” he writes, “has to do with an operari, and not with an esse” [ Über Schuld, p. 46]).
Yet in Benjamin, it is precisely this element (character insofar as it escapes all conscious willing) that presents itself as the principle capable of releasing man from guilt and of
affirming natural innocence.
1.7. If the exception is the structure of sovereignty, then sovereignty is not an
exclusively political concept, an exclusively juridical category, a power external to
law (Schmitt), or the supreme rule of the juridical order (Hans Kelsen): it is the
originary structure in which law refers to life and includes it in itself by suspend-
ing it. Taking up Jean-Luc Nancy’s suggestion, we shall give the name ban (from
the old Germanic term that designates both exclusion from the community and
the command and insignia of the sovereign) to this potentiality (in the proper
sense of the Aristotelian dynamis, which is always also dynamis mē energein, the potentiality not to pass into actuality) of the law to maintain itself in its own
privation, to apply in no longer applying. The relation of exception is a relation
of ban. He who has been banned is not, in fact, simply set outside the law and
made indifferent to it but rather abandoned by it, that is, exposed and threatened on the threshold in which life and law, outside and inside, become indistinguishable. It is literally not possible to say whether the one who has been banned is
outside or inside the juridical order. (This is why in Romance languages, to be
“banned” originally means both to be “at the mercy of” and “at one’s own will,
freely,” to be “excluded” and also “open to all, free.”) It is in this sense that the
paradox of sovereignty can take the form “There is nothing outside the law.” The
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originary relation of law to life is not application but Abandonment.The matchless potentiality of the nomos, its originary “force of law,” is that it holds life in its ban by abandoning it. This is the structure of the ban that we shall try to understan
d
here, so that we can eventually call it into question.
א The ban is a form of relation. But precisely what kind of relation is at issue here,
when the ban has no positive content and the terms of the relation seem to exclude (and,
at the same time, to include) each other? What is the form of law that expresses itself in the ban? The ban is the pure form of reference to something in general, which is to say,
the simple positing of relation with the nonrelational. In this sense, the ban is identical with the limit form of relation. A critique of the ban will therefore necessarily have to
put the very form of relation into question, and to ask if the political fact is not perhaps thinkable beyond relation and, thus, no longer in the form of a connection.
2
‘Nomos Basileus’
2.1. The principle according to which sovereignty belongs to law, which
today seems inseparable from our conception of democracy and the
legal State, does not at all eliminate the paradox of sovereignty; indeed it even
brings it to the most extreme point of its development. Since the most ancient
recorded formulation of this principle, Pindar’s fragment 169, the sovereignty
of law has been situated in a dimension so dark and ambiguous that it has
prompted scholars to speak quite rightly of an “enigma’’ (Ehrenberg, Rechtsidee,
p. 119). Here is the text of the fragment reconstructed by Boeck:
Nomos ho pantōn basileus
thnatōn te kai athanatōn
agei dikaiōn to Biaiotaton
hypertatai cheiri: tekmairomai
ergoisin Herakleos.
The nomos, sovereign of all,
Of mortals and immortals,
Leads with the strongest hand,
Justifying the most violent.
I judge this from the works of Hercules.
The enigma consists in more than the fact that there are many possible inter-
pretations of the fragment. What is decisive is that the poet—as the reference to
Hercules’ theft clarifies beyond the shadow of a doubt—defines the sovereignty
of the nomos by means of a justification of violence. The fragment’s meaning
becomes clear only when one understands that at its center lies a scandalous