The Omnibus Homo Sacer
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unification of the two essentially antithetical principles that the Greeks called
Bia and Dikē, violence and justice. Nomos is the power that, “with the strongest hand,” achieves the paradoxical union of these opposites (in this sense, if one
understands an enigma in the Aristotelian sense, as a “conjunction of opposites,”
the fragment truly does contain an enigma).
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HOMO SACER I
If in Solon’s fragment 24 one should read (as most scholars maintain) kratei
nomou, then already in the sixth century the specific “force” of law was identified precisely in a “connection” of violence and justice ( kratei/nomou bian te kai dikēn
synarmosas, “with the force of the nomos I have connected violence and justice”; but even if one reads homou instead of nomou, the central idea remains the same once Solon speaks of his activity as legislator [see De Romilly, La loi, p. 15]). A passage from Hesiod’s Works and Days, which Pindar may have had in mind, also
assigns a decisive position to the relation between violence and law:
O Perseus, keep these things in mind and
forget violence [ Biaia] when you attend to justice [ Dikē] .
To men, Zeus gave this nomos:
what is proper to the fish, the wild beasts, and the winged birds
is to devour each other, since there is no Dikē between them.
But to men Zeus gave Dikē, which is much better.
While in Hesiod the nomos is still the power that divides violence from
law and, with it, the world of beasts from the world of men, and while in
Solon the “connection” of Bia and Dikē contains neither ambiguity nor irony, in Pindar—and this is the knot that he bequeaths to Western political thought
and that makes him, in a certain sense, the first great thinker of sovereignty—
the sovereign nomos is the principle that, joining law and violence, threatens them
with indistinction. In this sense, Pindar’s fragment on the nomos basileus contains the hidden paradigm guiding every successive definition of sovereignty:
the sovereign is the point of indistinction between violence and law, the thresh-
old on which violence passes over into law and law passes over into violence.
א This is how Friedrich Hölderlin (who most likely had before him a text that
had been emended in accordance with the Platonic citation in the Gorgias: Biaiōn ton
dikaiotaton, “Doing violence to the most just” [484b, 1–10]) translates the fragment in his annotated version of Pindar’s fragments (which Friedrich Beißner dates at 1803):
Das Höchste
Das Gesetz,
Von allen der König, Sterblichen und
Unsterblichen; das führt eben
Darum gewaltig
Das gerechteste Recht mit allerhöchster Hand.
The Highest
The law,
Sovereign of all, mortals and
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31
Immortals; this is why
It leads, violently,
The most just justice with the supreme hand.
In the name of his theory of the constitutive superiority of the nomos over law ( Gesetz,
in the sense of conventional positing), Schmitt criticizes the Hölderlinian interpretation of the fragment. “Even Hölderlin,” Schmitt writes, “is mistaken in his translation of the
fragment . . . , since he renders the term nomos with Gesetz and lets himself be misled by this unfortunate word even though he knows that law is rigorous mediacy. The nomos in the originary sense is, rather, the pure immediacy of a juridical power [ Rechtskraft] not mediated by law. It is a constitutive historical event, an act of legitimacy that alone renders the legality of the new law meaningful in general” ( Das Nomos, p. 42).
Here Schmitt completely misinterprets the intention of the poet, which is directed
precisely against every immediate principle. In his commentary, Hölderlin defines the
nomos (which he distinguishes from law) as rigorous mediation ( strenge Mittelbarkeit):
“The immediate,” he writes, “is, taken in the rigorous sense, impossible for mortals as
for immortals; the god must distinguish different worlds, according to his nature, since
the heavenly goods must be holy for themselves, unmixed. Insofar as he knows, man too
must distinguish different worlds, since knowledge is only possible through opposition”
( Sämtliche Werke, p. 309). If Hölderlin (like Schmitt) sees a principle higher than simple law in the nomos basileus, nonetheless he is careful to specify that the term “sovereign” refers here not to a “supreme power” ( höchste Macht) but to the “highest ground of knowledge”
(ibid.). With one of those corrections so characteristic of his last translations, Hölderlin thus displaces a juridicopolitical problem (the sovereignty of law as the indistinction of law and violence) into the sphere of the theory of knowledge (mediation as the power of
distinguishing). What is more original and stronger than law is not (as in Schmitt) the
nomos as sovereign principle but rather the mediation that grounds knowledge.
2.2. It is in this light that we must read the Platonic citation in the Gorgias
(484b, 1–10), which, while appearing as simple forgetfulness, consciously alters
the Pindaric text:
Even Pindar, it seems to me, has held what I think in the verses in which he says:
the nomos, sovereign of all
mortals and immortals
And this is how Plato’s text then continues:
Leads with the strongest hand
Doing violence to the most just.
Only an acute coniunctivitis professoria was able to induce philologists (in
particular, the editor of the now aged Oxonian critical edition of Plato) to correct
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HOMO SACER I
the more authoritative manuscripts’ phrase, biaiōn to dikaiotaton, in accordance with the letter of Pindar’s text ( dikaiōn to biaiotaton) . As Ulrich von Wilamowitz -
Möllendorf has justly observed ( Platon, pp. 95–97), biaiōn is too rare in Greek to be explained by a lapse of memory (let alone a lapsus calami), and the meaning of the Platonic wordplay is perfectly clear: here the “justification of violence” is
at the same time a “doing violence to the most just,” and the “sovereignty” of the
nomos of which Pindar speaks consists in this and nothing else.
An analogous intention guides the implicit citation that Plato, in the Protag-
oras, puts in the mouth of Hippias: “You people who are present, I maintain that you are all relatives, neighbors, and citizens by nature and not by law. The
similar is related to the similar by nature, but the nomos, the tyrant [ trannos, not basileus] of men, commits many acts of violence against nature” (337c). This inten tion also guides the explicit citation in The Laws:
[The axiom according to which it is the strongest who rules] is, as the Theban
Pindar said, by nature extremely common among all living beings. But the axiom
that seems to be more important is the sixth one, which is to say, the one that
orders that he who knows and is intelligent should govern, and that the igno-
rant should therefore follow him. And you will not be able to say that this, wise
Pindar, happens against nature, for it happens not by means of violence but in
accordance with nature, that is, in accordance with the power of law over those
who accept it. (69ob–c)
In both cases, what interests Plato is not so much the opposition between
physis and nomos, which had been at the center of the Sophists’ debate (Stier,
“Nomos basileus,” pp. 245–46), as the coincidence of violence and law c
onstitu-
tive of sovereignty. In the passage from The Laws cited above, the power of law
is defined as being in accordance with nature ( kata physin) and essentially nonviolent because Plato is most of all concerned to neutralize the opposition that,
for both the Sophists and Pindar (in a different way), justified the “sovereign”
confusion of Bia and Dikē.
The entire treatment of the problem of the relation between physis and nomos
in the tenth book of The Laws is undertaken to dismantle the Sophistic construc-
tion of this opposition as well as the thesis of the anteriority of nature with respect
to law. Plato neutralizes both by affirming the originarity of the soul and of “all
that belongs to what is a soul” (intellect, techné, and nomos) with respect to bodies and the elements “that we erroneously say are in accordance with nature” (892b).
When Plato (and with him, all the representatives of what Leo Strauss calls “clas-
sical natural right”) says that “law must rule over men, and not men over law,” he
therefore means to affirm not law’s sovereignty over nature but, on the contrary, its
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33
“natural,” which is to say nonviolent, character. While in Plato the “law of nature”
is thus born to undermine the Sophistic opposition of physis and nomos and to exclude the sovereign confusion of violence and law, in the Sophists the opposition
serves precisely to found the principle of sovereignty, the union of Bia and Dikē.
2.3. The very sense of this opposition, which has had such a tenacious lin-
eage in the political culture of the West, will be considered here in a new way.
The Sophistic polemic against nomos in favor of nature (which developed with
ever-increasing urgency during the course of the fourth century) can be con-
sidered the necessary premise of the opposition between the state of nature and
the “commonwealth,”* which Hobbes posits as the ground of his conception
of sovereignty. If for the Sophists the anteriority of physis ultimately justifies the violence of the strongest, for Hobbes it is this very identity of the state of
nature and violence ( homo hominis lupus) that justifies the absolute power of the sovereign. In both cases, even if in an apparently opposed fashion, the physis/
nomos antinomy constitutes the presupposition that legitimates the principle of
sovereignty, the indistinction of law and violence (in the Sophists’ strong man or
Hobbes’s sovereign). It is important to note that in Hobbes the state of nature
survives in the person of the sovereign, who is the only one to preserve its natural
ius contra omnes. Sovereignty thus presents itself as an incorporation of the state of nature in society, or, if one prefers, as a state of indistinction between nature
and culture, between violence and law, and this very indistinction constitutes
specifically sovereign violence. The state of nature is therefore not truly external
to nomos but rather contains its virtuality. The state of nature (certainly in the modern era, but probably also in that of the Sophists) is the being-in- potentiality
[ l’essere-in-potenza] of the law, the law’s self-presupposition as “natural law.”
Hobbes, after all, was perfectly aware, as Strauss has underscored, that the state
of nature did not necessarily have to be conceived as a real epoch, but rather
could be understood as a principle internal to the State revealed in the moment
in which the State is considered “as if it were dissolved” ( ut tanquam dissoluta
consideretur [Hobbes, De cive, pp. 79–80]). Exteriority—the law of nature and the principle of the preservation of one’s own life—is truly the innermost center
of the political system, and the political system lives off it in the same way that
the rule, according to Schmitt, lives off the exception.
2.4. From this perspective, it will not seem surprising that Schmitt grounds
his theory of the originary character of the “nomos of the earth” precisely on Pindar’s fragment and, nevertheless, makes no allusion to his own definition of sover-
* In English in the original.—Trans.
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HOMO SACER I
eignty as the decision on the state of exception. What Schmitt wishes to establish
above all is the superiority of the sovereign nomos as the constitutive event of law with respect to every positivistic conception of law as simple position and convention ( Gesetz). This is why Schmitt must leave the essential proximity between nomos and the state of exception in obscurity, even though he speaks of “sovereign nomos.” And yet a more attentive reading reveals that this proximity is clearly present. A little later, in the chapter “First Global Lines,” Schmitt shows how the link
between localization and ordering constitutive of the nomos of the earth always
implies a zone that is excluded from law and that takes the shape of a “free and
juridically empty space” in which the sovereign power no longer knows the limits
fixed by the nomos as the territorial order. In the classical epoch of the ius publicum Europaeum, this zone corresponded to the New World, which was identified with the state of nature in which everything is possible (Locke: “In the beginning, all
the world was America’’). Schmitt himself assimilates this zone “beyond the line”*
to the state of exception, which “bases itself in an obviously analogous fashion
on the idea of delimited, free and empty space” understood as a “temporary and
spatial sphere in which every law is suspended”:
It was, however, delimited with respect to the normal legal system: in time, at
first through the declaration of the state of war and, in the end, through an act
of indemnity; in space, by a precise indication of its sphere of validity. Inside this
spatial and temporal sphere, anything could happen as long as it was held to be
de facto necessary according to circumstances. There is an ancient and obvious
symbol of this situation, to which Montesquieu also makes reference: the statue
of freedom or of justice was veiled for a determinate period of time. (Schmitt,
Das Nomos, p. 67)
Insofar as it is sovereign, the nomos is necessarily connected with both the
state of nature and the state of exception. The state of exception (with its nec-
essary indistinction of Bia and Dikē) is not external to the nomos but rather, even in its clear delimitation, included in the nomos as a moment that is in every sense fundamental. At its very center, the localization-ordering link thus always
already contains its own virtual rupture in the form of a “suspension of every law.”
But what then appears (at the point in which society is considered as tanquam
dissoluta) is in fact not the state of nature (as an earlier stage into which men would fall back) but the state of exception. The state of nature and the state of
exception are nothing but two sides of a single topological process in which what
was presupposed as external (the state of nature) now reappears, as in a Möbius
* In English in the original.—Trans.
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strip or a Leyden jar, in the inside (as state of exception), and the sovereign power
is this very impossibility of distinguishing between outside and inside, nature and
exception, physis and nomos. The state of exception is thus not so much a spatiotemporal suspension as a complex topological figure in which not only the ex-
ception and the rule but also the state of nature and law, outside and inside, pass
/> through one another. It is precisely this topological zone of indistinction, which
had to re main hidden from the eyes of justice, that we must try to fix under our
gaze. The process (which Schmitt carefully described and which we are still living)
that began to become apparent in the First World War, through which the con-
stitutive link between the localization and ordering of the old nomos was broken
and the entire system of the reciprocal limitations and rules of the ius publicum
Europaeum brought to ruin, has its hidden ground in the sovereign exception.
What happened and is still happening before our eyes is that the “juridically
empty” space of the state of exception (in which law is in force in the figure—that
is, etymologically, in the fiction—of its own dissolution, and in which everything that the sovereign deemed de facto necessary could happen) has transgressed its
spatiotemporal boundaries and now, overflowing outside them, is starting to co-
incide with the normal order, in which everything again becomes possible.
א If one wanted to represent schematically the relation between the state of nature
and the state of law that takes shape in the state of exception, one could have recourse
to two circles that at first appear to be distinct (Fig. 1) but later, in the state of exception, show themselves to be in fact inside each other (Fig. 2). When the exception starts to
become the rule, the two circles coincide in absolute indistinction (Fig. 3).
Figure
1 Figure
2 Figure
3
From this perspective, what is happening in ex-Yugoslavia and, more generally, what
is happening in the processes of dissolution of traditional State organisms in Eastern Eu-
rope should be viewed not as a reemergence of the natural state of struggle of all against all—which functions as a prelude to new social contracts and new national and State
localizations—but rather as the coming to light of the state of exception as the permanent structure of juridico-political de-localization and dis-location. Political organization is not regressing toward outdated forms; rather, premonitory events are, like bloody masses,
announcing the new nomos of the earth, which (if its grounding principle is not called into question) will soon extend itself over the entire planet.