The Omnibus Homo Sacer

by Giorgio Agamben

  being stained by sacrilege (hence the incongruous explanation of Macrobius, ac-

  cording to which since the souls of the homines sacri were diis debitae, they were sent to the heavens as quickly as possible).

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  Neither position can account economically and simultaneously for the two

  traits whose juxtaposition, according to Festus, constitutes the specificity of

  homo sacer: the unpunishability of his killing and the ban on his sacrifice. In the light of what we know of the Roman juridical and religious order (both of the ius

  divinum and the ius humanum), the two traits seem hardly compatible: if homo sacer was impure (Fowler: taboo) or the property of the gods (Kerényi), then why could anyone kill him without either contaminating himself or committing

  sacrilege? What is more, if homo sacer was truly the victim of a death sentence

  or an archaic sacrifice, why is it not fas to put him to death in the prescribed

  forms of execution? What, then, is the life of homo sacer, if it is situated at the intersection of a capacity to be killed and yet not sacrificed, outside both human

  and divine law?

  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. Instead of appealing to the ethnological notion of taboo in order to

  dissolve the specificity of homo sacer into an assumed originary ambiguity of the sacred—as has all too often been done—we will try to interpret sacratio as an

  autonomous figure, and we will ask if this figure may allow us to uncover an orig-

  inary political structure that is located in a zone prior to the distinction between sacred and profane, religious and juridical. To approach this zone, however, it

  will first be necessary to clear away a certain misunderstanding.

  2

  The Ambivalence of the Sacred

  2.1. Interpretations of social phenomena and, in particular, of the origin

  of sovereignty, are still heavily weighed down by a scientific mythol-

  ogeme that, constituted between the end of the nineteenth century and the

  first decades of the twentieth, has consistently led the social sciences astray in

  a particularly sensitive region. This mythologeme, which we may provisionally

  call “the theory of the ambivalence of the sacred,” initially took form in late

  Victorian anthropology and was immediately passed on to French sociology. Yet

  its influence over time and its transmission to other disciplines have been so te-

  nacious that, in addition to compromising Bataille’s inquiries into sovereignty, it

  is present even in that masterpiece of twentieth-century linguistics, Émile Ben-

  veniste’s Indo-European Language and Society. It will not seem surprising that this mythologeme was first formulated in William Robertson Smith’s Lectures on the

  Religion of the Semites (1889)—the same book that was to influence the compo-

  sition of Freud’s Totem and Taboo (“reading it,” Freud wrote, “was like slipping

  away on a gondola’’)—if one keeps in mind that these Lectures correspond to the

  moment in which a society that had already lost every connection to its religious

  tradition began to express its own unease. In Smith’s book, the ethnographic

  notion of taboo first leaves the sphere of primitive cultures and firmly penetrates

  the study of biblical religion, thereby irrevocably marking the Western experi-

  ence of the sacred with its ambiguity. “Thus,” Smith writes in the fourth lecture,

  alongside of taboos that exactly correspond to rules of holiness, protecting the

  inviolability of idols and sanctuaries, priests and chiefs, and generally of all per-

  sons and things pertaining to the gods and their worship, we find another kind of

  taboo which in the Semitic field has its parallel in rules of uncleanness. Women

  after child-birth, men who have touched a dead body and so forth are temporarily

  taboo and separated from human society, just as the same persons are unclean in

  Semitic religion. In these cases the person under taboo is not regarded as holy,

  for he is separated from approach to the sanctuary as well as from contact with

  men. . . . In most savage societies no sharp line seems to be drawn between the

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  two kinds of taboo just indicated, and even in more advanced nations the notions

  of holiness and uncleanness ofren touch. (Smith, Lectures, pp. 152–53)

  In a note added to the second edition of his Lectures, under the tide “Holiness, Uncleanness and Taboo,” Smith lists a new series of examples of ambiguity

  (among which is the ban on pork, which “in the most elevated Semitic religions

  appears as a kind of no-man’s-land between the impure and the sacred”) and

  postulates the impossibility of “separating the Semitic doctrine of the holy from

  the impurity of the taboo-system” (ibid., p. 452).

  It is significant that Smith also mentions the ban in his list of examples of

  this ambiguous power ( patens) of the sacred:

  Another Hebrew usage that may be noted here is the ban (Heb. ḥerem), 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 4:13) or “devote” (Lev. 27:

  28ff). 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. 6: 24).

  Even cattle were not sacrificed, but simply slain, and the devoted city must not

  be revealed (Deut. 13: 6; Josh. 6: 26). Such a ban is a taboo, enforced by the fear

  of supernatural penalties (1 Kings 16: 34), and, as with taboo, the danger arising

  from it is contagious (Deut. 7: 26); he that brings a devoted thing into his house

  falls under the same ban itself. ( Lectures, pp. 453–54)

  The analysis of the ban—which is assimilated to the taboo—determines from

  the very beginning the genesis of the doctrine of the ambiguity of the sacred:

  the ambiguity of the ban, which excludes in including, implies the ambiguity

  of the sacred.

  2.2. Once it is formulated, the theory of the ambivalence of the sacred has

  no difficulty extending itself over every field of the social sciences, as if European

  culture were only now noticing it for the first time. Ten years after the Lectures,

  the classic of French anthropology, Marcel Mauss and H. Hubert’s “Essay on the

  Nature and Function of Sacrifice” (1889) opens with an evocation of precisely

  “the ambiguous character of sacred things, which Robertson Smith has so ad-

  mirably made clear” (“Essai,” p. 195). Six years later, in the second volume of

  Wilhelm Max Wundt’s Völkerpsychologie, the concept of taboo would express precisely the originary indistinction of sacred and impure that is said to characterize the most archaic period of human history, constituting that mixture of

  veneration and horror described by Wundt—with a formula that was to enjoy

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  HOMO SACER I

  great success—as “sacred horror.” According to Wundt, it was therefore only in<
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  a later period, when the most ancient powers were replaced by the gods, that the

  originary ambivalence gave way to the opposition of the sacred and the impure.

  In 1912, Mauss’s uncle, Émile Durkheim, published his Elemen tary Forms

  of Religious Life, in which an entire chapter is devoted to “the ambiguity of the notion of the sacred.” Here he classifies the “religious forces” as two opposite

  categories, the auspicious and the inauspicious:

  To be sure, the sentiments provoked by the one and the other are not identical:

  disgust and horror are one thing and respect another. Nonetheless, for actions to

  be the same in both cases, the feelings expressed must not be different in kind.

  In fact, there actually is a certain horror in religious respect, especially when it is

  very intense; and the fear inspired by malignant powers is not without a certain

  reverential quality. . . . The pure and the impure are therefore not two separate

  genera, but rather two varieties of the same genus that includes sacred things.

  There are two kinds of sacred things, the auspicious and the inauspicious. Not

  only is there no clear border between these two opposite kinds, but the same

  object can pass from one to the other without changing nature. The impure is

  made from the pure, and vice versa. The ambiguity of the sacred consists in the

  possibility of this transmutation. ( Les formes élémentaires, pp. 446–48) What is at work here is the psychologization of religious experience (the

  “disgust” and “horror” by which the cultured European bourgeoisie betrays its

  own unease before the religious fact), which will find its final form in Rudolph

  Otto’s work on the sacred. Here, in a concept of the sacred that completely coin-

  cides with the concept of the obscure and the impenetrable, a theology that had

  lost all experience of the revealed word celebrated its union with a philosophy

  that had abandoned all sobriety in the face of feeling. That the religious belongs

  entirely to the sphere of psychological emotion, that it essentially has to do with

  shivers and goose bumps this is the triviality that the neologism “numinous” had

  to dress up as science.

  When Freud set out to write Totem and Taboo several years later, the field had

  therefore already been prepared for him. Yet only with this book does a genuine

  general theory of the ambivalence of the sacred come to light on the basis not

  only of anthropology and psychology but also of linguistics. In 1910, Freud had

  read the essay “On the Antithetical Meaning of Primal Words” by the now dis-

  credited linguist Karl Abel, and he reviewed it for Imago in an article in which

  he linked Abel’s essay to his own theory of the absence of the principle of con-

  tradiction in dreams. The Latin term sacer, “sacred and damned,” figures in the list of words with antithetical meanings that Abel gives in his appendix, as Freud

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  does not hesitate to point out. Strangely enough, the anthropologists who first

  formulated the theory of the ambiguity of the sacred did not mention the Latin

  concept of sacratio. But in 1911, Fowler’s essay “The Original Meaning of the

  Word Sacer” appeared, presenting an interpretation of homo sacer that had an immediate effect on the scholars of religious studies. Here the implicit ambiguity in

  Festus’s definition allows the scholar (taking up a suggestion of Robert Marett’s)

  to link the Latin sacer with the category of taboo: “Sacer esto is in fact a curse; and homo sacer on whom this curse falls is an outcast, a banned man, tabooed, dangerous. . . . Originally the word may have meant simply taboo, i.e. removed out

  of the region of the profanum, without any special reference to a deity, but ‘holy’

  or accursed according to the circumstances” (Fowler, Roman Essays, pp. 17–23).

  In a well-documented study, Huguette Fugier has shown how the doctrine of

  the ambiguity of the sacred penetrates into the sphere of linguistics and ends by

  having its stronghold there ( Recherches, pp. 238–40). A decisive role in this process is played precisely by homo sacer. While in the second edition of A. Walde’s Lateinisches etymologisches Wörterbuch (1910) there is no trace of the doctrine

  of the ambivalence of the sacred, the entry under the heading sacer in Alfred

  Ernout-Meillet’s Dictionnaire étymologique de la langue latine (1932) confirms the

  “double meaning” of the term by reference to precisely homo sacer: “Sacer designates the person or the thing that one cannot touch without dirtying oneself or

  without dirtying; hence the double meaning of ‘sacred’ or ‘accursed’ (approxi-

  mately). A guilty person whom one consecrates to the gods of the underworld is

  sacred ( sacer esto: cf. Grk. agios) . ”

  א It is interesting to follow the exchanges documented in Fugier’s work between

  anthropology, linguistics, and sociology concerning the problem of the sacred. Pauly-

  Wilson’s “Sacer” article, which is signed by R. Ganschinietz (1920) and explicitly notes

  Durkheim’s theory of ambivalence (as Fowler had already done for Smith), appeared

  between the second edition of Walde’s Wörterbuch and the first edition of Ernout-Meillet’s Dictionnaire. As for Ernout-Meillet, Fugier notes the strict links that linguistics had with the Parisian school of sociology (in particular with Mauss and Durkheim).

  When Roger Callois published Man and the Sacred in 1939, he was thus able to start off directly with a lexical given, which was by then considered certain: “We know, following

  Ernout- Meillet’s definition, that in Rome the word sacer designated the person or the thing that one cannot touch without dirtying oneself or without dirtying” ( L’homme et

  le sacré, p. 22).

  2.3. An enigmatic archaic Roman legal figure that seems to embody contra-

  dictory traits and therefore had to be explained thus begins to resonate with the

  religious category of the sacred when this category irrevocably loses its signif-

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  HOMO SACER I

  icance and comes to assume contradictory meanings. Once placed in relation

  with the ethnographic concept of taboo, this ambivalence is then used—with

  perfect circularity—to explain the figure of homo sacer. There is a moment in the life of concepts when they lose their immediate intelligibility and can then, like

  all empty terms, be overburdened with contradictory meanings. For the religious

  phenomenon, this moment coincides with the point at which anthropology—for

  which the ambivalent terms mana, taboo, and sacer are absolutely central—was born at the end of the last century. Lévi-Strauss has shown how the term mana

  functions as an excessive signifier with no meaning other than that of marking

  an excess of the signifying function over all signifieds. Somewhat analogous re-

  marks could be made with reference to the use and function of the concepts of

  the sacred and the taboo in the discourse of the social sciences between 1890 and

  1940. An assumed ambivalence of the generic religious category of the sacred

  cannot explain the juridico-political phenomenon to which the most ancient

  meaning of the term sacer refers. On the contrary, only an attentive and un-

  prejudiced delimitation of the respective fields of the political and the religious

  will make it possible to understand the history of their intersection and com-

  plex relations. It is important, in any case, that the originary juridico-
political

  dimension that presents itself in homo sacer not be covered over by a scientific mythologeme that not only explains nothing but is itself in need of explanation.

  3

  Sacred Life

  3.1. According to both the original sources and the consensus of scholars,

  the structure of sacratio arises out of the conjunction of two traits:

  the unpunishability of killing and the exclusion from sacrifice. Above all, the

  impune occidi takes the form of an exception from the ius humanum insofar as it suspends the application of the law on homicide attributed to Numa Pompilius:

  Si quis hominem liberum dolo sciens morti duit, parricidas esto, “If someone intentionally kills a free man, may he be considered a murderer.” The very formulation

  given by Festus in some way even constitutes a real exceptio in the technical sense, which the killer, invoking the sacredness of the victim, could have opposed to

  the prosecution in the case of a trial. If one looks closely, however, one sees that

  even the neque fas est eum immolari (“it is not licit to sacrifice him”) takes the form of an exception, this time from the ius divinum and from every form of

  ritual killing. The most ancient recorded forms of capital punishment (the terri-

  ble poena cullei, in which the condemned man, with his head covered in a wolf-skin, was put in a sack with serpents, a dog and a rooster, and then thrown into

  water, or defenestration from the Tarpean rock) are actually purification rites and

  not death penalties in the modern sense: the neque fas est eum immolari served

  precisely to distinguish the killing of homo sacer from ritual purifications, and decisively excluded sacratio from the religious sphere in the strict sense.

  It has been observed that while consecratio normally brings an object from

  the ius humanum to the ius divinum, from the profane to the sacred (Fowler, Roman Essays, p. 18), in the case of homo sacer a person is simply set outside human jurisdiction without being brought into the realm of divine law. Not only does

  the ban on immolation exclude every equivalence between the homo sacer and a

  consecrated victim, but—as Macrobius, citing Trebatius, observes—the fact that

  the killing was permitted implied that the violence done to homo sacer did not