Sache des Denkens, p. 44), and the relation between Being and being consequently finds its
“absolution.” This is why Heidegger can write that with the Ereignis he is trying to think
“Being without regard to the being,” which amounts to nothing less than attempting
to think the ontological difference no longer as a relation, and Being and being beyond
every form of a connection.
This is the perspective from which we must situate the debate between Kojève and
Georges Bataille. What is at play here is precisely the figure of sovereignty in the age of the fulfillment of human history. Various scenarios are possible. In the note added to the second edition of his Introduction to the Reading of Hegel, Kojève distances himself from the first edition’s claim that the end of history simply coincides with man’s becoming an
animal again and the disappearance of man in the proper sense (that is, as the subject of
negating action). During a trip to Japan in 1959, Kojève had maintained the possibility
of a posthistorical culture in which men, while abandoning their negating action in the
strict sense, continue to separate forms from their contents not in order to actively transform these contents but to practice a kind of “pure snobbism’’ (tea ceremonies, etc.). On
the other hand, in the review of Raymond Queneau’s novels he sees in the characters of
Dimanche de vie, and particularly in the “lazy rascal” ( voyou desœuvré), the figure of the satisfied wise man at the end of history (Kojève, “Les romans,” p. 391). In opposition to
the voyou desœuvré (who is contemptuously defined as homo quenellenesis) and the satisfied and self-conscious Hegelian wise man, Bataille proposes the figure of a sovereignty entirely consumed in the instant ( la seule innocence possible: celle de l’instant) that coincides with
“the forms in which man gives himself to himself: . . . laughter, eroticism, struggle, luxury.”
The theme of desœuvrement—inoperativeness as the figure of the fullness of man at
the end of history—which first appears in Kojève’s review of Queneau, has been taken
up by Blanchot and by Nancy, who places it at the very center of his work The Inoperative Community. Everything depends on what is meant by “inoperativeness.” It can be neither the simple absence of work nor (as in Bataille) a sovereign and useless form of negativity.
The only coherent way to understand inoperativeness is to think of it as a generic mode
of potentiality that is not exhausted (like individual action or collective action understood as the sum of individual actions) in a transitus de potentia ad actum.
Threshold
IN laying bare the irreducible link uniting violence and law, Benjamin’s “Cri-
tique of Violence” proves the necessary and, even today, indispensable prem-
ise of every inquiry into sovereignty. In Benjamin’s analysis, this link shows itself
to be a dialectical oscillation between the violence that posits law and the vio-
lence that preserves it. Hence the necessity of a third figure to break the circular
dialectic of these two forms of violence:
The law of this oscillation [between the violence that posits law and the violence
that preserves it] rests on the fact that all law-preserving violence, in its duration,
indirectly weakens the lawmaking violence represented by it, through the sup-
pression of hostile counterviolence. . . . This lasts until either new forces or those
earlier suppressed triumph over the violence that had posited law until now and
thus found a new law destined to a new decay. In the interruption of this cycle,
which is maintained by mythical forms of law, in the deposition of law and all
the forces on which it depends (as they depend on it) and, therefore, finally in
the deposition of State power, a new historical epoch is founded. (“Zur Kritik
der Gewalt,” p. 202)
The definition of this third figure, which Benjamin calls “divine violence,”
constitutes the central problem of every interpretation of the essay. Benjamin in
fact offers no positive criterion for its identification and even denies the possibil-
ity of recognizing it in the concrete case. What is certain is only that it neither
posits nor preserves law, but rather “de-poses” ( entsetzt) it. Hence its capacity to lend itself to the most dangerous equivocations (which is proven by the scrutiny
with which Derrida, in his interpretation of the essay, guards against it, approx-
imating it—with a peculiar misunderstanding—to the Nazi “Final Solution”
[“Force of Law,” pp. 1044–45]).
It is likely that in 1920, at the time Benjamin was working on the “Critique,”
he had not yet read Schmitt’s Political Theology, whose definition of sovereignty he would cite five years later in his book on the Baroque mourning play. Sovereign violence and the state of exception, therefore, do not appear in the essay,
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HOMO SACER
55
and it is not easy to say where they would stand with respect to the violence
that posits law and the violence that preserves it. The root of the ambiguity of
divine violence is perhaps to be sought in precisely this absence. The violence
exercised in the state of exception clearly neither preserves nor simply posits law,
but rather conserves it in suspending it and posits it in excepting itself from it.
In this sense, sovereign violence, like divine violence, cannot be wholly reduced
to either one of the two forms of violence whose dialectic the essay undertook to
define. This does not mean that sovereign violence can be confused with divine
violence. The definition of divine violence becomes easier, in fact, precisely when
it is put in relation with the state of exception. Sovereign violence opens a zone
of indistinction between law and nature, outside and inside, violence and law.
And yet the sovereign is precisely the one who maintains the possibility of de-
ciding on the two to the very degree that he renders them indistinguishable from
each other. As long as the state of exception is distinguished from the normal
case, the dialectic between the violence that posits law and the violence that pre-
serves it is not truly broken, and the sovereign decision even appears simply as
the medium in which the passage from the one to the other takes place. (In this
sense, it can be said both that sovereign violence posits law, since it affirms that
an otherwise forbidden act is permitted, and that it conserves law, since the con-
tent of the new law is only the conservation of the old one.) In any case, the link
between violence and law is maintained, even at the point of their indistinction.
The violence that Benjamin defines as divine is instead situated in a zone
in which it is no longer possible to distinguish between exception and rule. It
stands in the same relation to sovereign violence as the state of actual exception,
in the eighth thesis, does to the state of virtual exception. This is why (that is,
insofar as divine violence is not one kind of violence among others but only the
dissolution of the link between violence and law) Benjamin can say that divine
violence neither posits nor conserves violence, but deposes it. Divine violence
shows the connection between the two violences—and, even more, between
violence and law—to be the single real content of law. “The function of violence
in juridical creation,” Benjamin writes, at the only point in which the essay
>
approaches something like a definition of sovereign violence, “is twofold, in the
sense that lawmaking pursues as its end, with violence as the means, what is to
be established as law, but at the moment of its instatement does not depose vio-
lence; rather, at this very moment of lawmaking and in the name of power, it spe-
cifically establishes as law not an end immune and independent from violence,
but one necessarily and intimately bound up with it” (“Zur Kritik der Gewalt,”
pp. 197–98). This is why it is not by chance that Benjamin, with a seemingly
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HOMO SACER I
abrupt development, concentrates on the bearer of the link between violence
and law, which he calls “bare life” ( bloßes Leben), instead of defining divine violence. The analysis of this figure—whose decisive function in the economy of the
essay has until now remained unthought—establishes an essential link between
bare life and juridical violence. Not only does the rule of law over the living
exist and cease to exist alongside bare life, but even the dissolution of juridical
violence, which is in a certain sense the object of the essay, “stems . . . from the
guilt of bare natural life, which consigns the living, innocent and unhappy, to
the punishment that ‘expiates’ the guilt of bare life—and doubtless also purifies
[ entsühnt] the guilty, not of guilt, however, but of law” (ibid., p. 200).
In the pages that follow, we will attempt to develop these suggestions and to
analyze the link binding bare life to sovereign power. According to Benjamin,
the principle of the sacred character of life, which our age assigns to human life
and even to animal life, can be of no use either in clarifying this link or in call-
ing into question the rule of law over the living. To Benjamin, it is suspicious
that what is here proclaimed as sacred is precisely what, according to mythical
thought, is “the bearer destined to guilt: bare life,” almost as if there were a se-
cret complicity between the sacredness of life and the power of law. “It might,”
he writes, “be well worth while to investigate the origin of the dogma of the
sacredness of life. Perhaps, indeed probably, it is relatively recent, the last mis-
taken attempt of the weakened Western tradition to seek the saint it had lost in
cosmological impenetrability” (ibid., p. 202).
We shall begin by investigating precisely this origin. The principle of the
sacred ness of life has become so familiar to us that we seem to forget that clas-
sical Greece, to which we owe most of our ethico-political concepts, not only
ignored this principle but did not even possess a term to express the complex
semantic sphere that we indicate with the single term “life.” Decisive as it is for
the origin of Western politics, the opposition between zoē and bios, between zēn and eu zēn (that is, between life in general and the qualified way of life proper
to men), contains nothing to make one assign a privilege or a sacredness to
life as such. Homeric Greek does not even know a term to designate the living
body. The term sōma, which appears in later epochs as a good equivalent to our term “life,” originally meant only “corpse,” almost as if life in itself, which for
the Greeks was broken down into a plurality of forms and elements, appeared
only as a unity after death. Moreover, even in those societies that, like classical
Greece, celebrated animal sacrifices and occasionally immolated human victims,
life in itself was not considered sacred. Life became sacred only through a series
of rituals whose aim was precisely to separate life from its profane context. In
HOMO SACER
57
the words of Benveniste, to render the victim sacred, it is necessary to “separate
it from the world of the living, it is necessary that it cross the threshold that
separates the two universes: this is the aim of the killing” ( Le vocabulaire, p. 188).
If this is true, then when and in what way did a human life first come to be
considered sacred in itself? Until now we have been concerned with delineating
the logical and topological structure of sovereignty. But what is excepted and
captured in sovereignty, and who is the bearer of the sovereign ban? Both Ben-
jamin and Schmitt, if differently, point to life (“bare life” in Benjamin and, in
Schmitt, the “real life” that “breaks the crust of a mechanism rigidified through
repetition”) as the element that, in the exception, finds itself in the most inti-
mate relation with sovereignty. It is this relation that we must now clarify.
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PART TWO
Homo Sacer
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1
Homo Sacer
1.1. Pompeius Festus, in his treatise On the Significance of Words, under the heading sacer mons preserved the memory of a figure of archaic Roman
law in which the character of sacredness is tied for the first time to a human life
as such. After defining the Sacred Mount that the plebeians consecrated to Jove
at the time of their secession, Festus adds:
At homo sacer is est, quem populus iudicavit ob maleficium; neque fas est eum
immolari, sed qui occidit, parricidi non damnatur; nam lege tribunicia prima
cavetur “si quis eum, qui eo plebei scito sacer sit, occiderit, parricidia ne sit.”
Ex quo quivis homo malus atque improbus sacer appellari solet. ( De verborum
significatione)
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.
The meaning of this enigmatic figure has been much discussed, and some
have wanted to see in it “the oldest punishment of Roman criminal law” (Ben-
nett, “Sacer esto,” p. 5). Yet every interpretation of homo sacer is complicated
by virtue of having to concentrate on traits that seem, at first glance, to be
contradictory. In an essay of 1930, H. Bennett already observes that Festus’s defi-
nition “seems to deny the very thing implicit in the term” (ibid., p. 7), since
while it confirms the sacredness of a person, it authorizes (or, more precisely,
renders unpunishable) his killing (whatever etymology one accepts for the term
parricidium, it originally indicated the killing of a free man). The contradiction is even more pronounced when one considers that the person whom anyone
could kill with impunity was nevertheless not to be put to death according to
ritual practices ( neque fas est eum immolari: immolari indicates the act of sprinkling the mola salsa on the victim before killing him).
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HOMO SACER I
In what, then, does the sacredness of the sacred man consist? And what does
the expression sacer esto (“May he be sacred”), which often figures in the royal
laws and which already appears in the archaic inscription on the forum’s rectan-
gular cippus, mean, if it implies at once the impune occidi (“being killed with impunity”) and an exclusion from sacrifice
? That this expression was also obscure to
the Romans is proven beyond the shadow of a doubt by a passage in Ambrosius
Theodosius Macrobius’s Saturnalia (3.7.3–8) in which the author, having defined
sacrum as what is destined to the gods, adds: ‘’At this point it does not seem out of place to consider the status of those men whom the law declares to be sacred
to certain divinities, for I am not unaware that it appears strange [ mirum videri]
to some people that while it is forbidden to violate any sacred thing whatsoever,
it is permitted to kill the sacred man.” Whatever the value of the interpretation
that Macrobius felt obliged to offer at this point, it is certain that sacredness
appeared problematic enough to him to merit an explanation.
1.2. The perplexity of the antiqui auctores is matched by the divergent inter-
pretations of modern scholars. Here the field is divided between two positions.
On the one hand, there are those, like Theodor Mommsen, Ludwig Lange,
Bennett, and James Leigh Strachan-Davidson, who see sacratio as a weakened
and secularized 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. On the other hand, there are those, like Károly Kerényi and W. Ward
Fowler, who consider sacratio to bear the traces of an archetypal figure of the
sacred—consecration to the gods of the underworld—which is analogous to the
ethnological notion of taboo: august and damned, worthy of veneration and
provoking horror. Those among the first group are able to admit the impune
occidi (as, for example, Mommsen does in terms of a popular or vicariate execu-
tion of a death sentence), but they are still unable to explain the ban on sacrifice.
Inversely, the neque fas est eum immolari is understandable in the perspective of the second group of scholars (“homo sacer,” Kerényi writes, “cannot be the object
of sacrifice, of a sacrificium, for no other reason than this very simple one: what is sacer is already possessed by the gods and is originarily and in a special way possessed by the gods of the underworld, and so there is no need for it to become so through a new action” [ La religione, p. 76]). But it remains completely incomprehensible from this perspective why anyone can kill homo sacer without
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