Such a “force-of-law,” in which potentiality and act are radically separated, is
certainly something like a mystical element, or rather a fictio by means of which law seeks to annex anomie itself. But how is it possible to conceive of such a
“mystical” element and the way it acts in the state of exception? This is precisely
the problem that we must try to clarify.
2.4. The concept of application is certainly one of the most problematic
categories of legal (and not only legal) theory. The question was put on a false
track by being related to Kant’s theory of judgment as a faculty of thinking the
particular as contained in the general. The application of a norm would thus be
a case of determinant judgment, in which the general (the rule) is given, and the
particular case is to be subsumed under it. (In reflective judgment it is instead
the particular that is given, and the general rule that must be found.) Even
though Kant was perfectly aware of the aporetic nature of the problem and of
the difficulty involved in concretely deciding between the two types of judgment
(as shown by his theory of the example as an instance of a rule that cannot be
enunciated), the mistake here is that the relation between the particular case and
the norm appears as a merely logical operation.
Once again, the analogy with language is illuminating: In the relation be-
tween the general and the particular (and all the more so in the case of the appli-
cation of a juridical norm), it is not only a logical subsumption that is at issue,
but first and foremost the passage from a generic proposition endowed with
a merely virtual reference to a concrete reference to a segment of reality (that
is, nothing less than the question of the actual relation between language and
world). This passage from langue to parole, or from the semiotic to the semantic, is not a logical operation at all; rather, it always entails a practical activity, that
is, the assumption of langue by one or more speaking subjects and the imple-
mentation of that complex apparatus that Benveniste defined as the enunciative
function, which logicians often tend to undervalue. In the case of the juridical
norm, reference to the concrete case entails a “trial” that always involves a plu-
rality of subjects and ultimately culminates in the pronunciation of a sentence,
that is, an enunciation whose operative reference to reality is guaranteed by the
institutional powers.
In order to pose the problem of application correctly, it must therefore first
be moved from the logical sphere to the practical. As Gadamer has shown (1960,
360, 395/378–79, 418), not only is every linguistic interpretation always really an
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application requiring an effective operation (which the tradition of theological
hermeneutics has summarized in the maxim that Johann A. Bengel placed at
the beginning of his edition of the New Testament: te totum applica ad textum,
rem totam applica ad te [apply all of yourself to the text; apply all of it to yourself]), but it is also perfectly obvious (and Schmitt had no difficulty theorizing
this obviousness) that, in the case of law, the application of a norm is in no
way contained within the norm and cannot be derived from it; otherwise, there
would have been no need to create the grand edifice of trial law. Just as between
language and world, so between the norm and its application there is no internal
nexus that allows one to be derived immediately from the other.
In this sense, the state of exception is the opening of a space in which appli-
cation and norm reveal their separation and a pure force-of-law realizes (that is,
applies by ceasing to apply [ dis-applicando]) a norm whose application has been
suspended. In this way, the impossible task of welding norm and reality together,
and thereby constituting the normal sphere, is carried out in the form of the
exception, that is to say, by presupposing their nexus. This means that in order
to apply a norm it is ultimately necessary to suspend its application, to produce
an exception. In every case, the state of exception marks a threshold at which
logic and praxis blur with each other and a pure violence without logos claims to realize an enunciation without any real reference.
3
Iustitium
3.1. There is an institution of Roman law that can in some ways be con-
sidered the archetype of the modern Ausnahmezustand, and yet—
indeed, perhaps precisely for this reason—does not seem to have been given
sufficient attention by legal historians and theorists of public law: the iustitium.
Because it allows us to observe the state of exception in its paradigmatic form,
we will use the iustitium here as a miniature model as we attempt to untangle the aporias that the modern theory of the state of exception cannot resolve.
Upon learning of a situation that endangered the Republic, the Senate
would issue a senatus consultum ultimum [final decree of the Senate] by which it
called upon the consuls (or those in Rome who acted in their stead: interrex or
pro consuls) and, in some cases, the praetor and the tribunes of the people, and
even, in extreme cases, all citizens, to take whatever measures they considered
necessary for the salvation of the state ( rem publicam defendant, operamque dent
ne quid respublica detrimenti capiat [Let them defend the state, and see to it that no harm come to the state]). At the base of this senatus consultum was a decree
declaring a tumultus (that is, an emergency situation in Rome resulting from a
foreign war, insurrection, or civil war), which usually led to the proclamation
of a iustitium ( iustitium edicere or indicere [to proclaim or declare a iustitium]).
The term iustitium—which is constructed exactly like solstitium—literally
means “standstill” or “suspension of the law”: quando ius stat, as the grammarians explained etymologically, sicut solstitium dicitur ( iustitium means “when the law stands still, just as [the sun does in] the solstice”); or, in the words of Aulus
Gellius, iuris quasi interstitio quaedam et cessatio (as if it were an interval and a sort of cessation of law). The term implied, then, a suspension not simply of the
administration of justice but of the law as such. The meaning of this paradoxical
legal institution—which consists solely in the production of a juridical void—is
what we must examine here from both a philosophico-political standpoint and
from the perspective of the systematics of public law.
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א The definition of the concept of tumultus, particularly in comparison to war ( bellum), has led to debates that are not always pertinent. The connection between the two concepts is already present in ancient sources, for example in the passage from the
Philippics (8.1) in which Cicero states that “there can be a war without tumult, but no tumult without a war.” All evidence suggests that this passage does not mean that tumult
is a special or stronger form of war ( qualificirtes, gesteigertes bellum [see Nissen 1877, 78]); instead, at the very moment of affirming a connection between war and tumult, it places
an irreducible difference between them. Indeed, an analysis of the passages from Livy
concerning tumultus shows that though the cause of a tumult can be (but is not always) an external war, the term
technically designates the state of disorder and unrest ( tumultus is related to tumor, which means “swelling, fermentation”) that arises in Rome as a result of that event (thus the news of a defeat in the war against the Etruscans gave rise to a tumult and maiorem quam re terrorem [greater terror than the thing] [Livy 10.4.2] in Rome). This confusion between cause and effect is clear in the definition found in the Latin dictionaries: bellum aliquod subitum, quod ob periculi magnitudinem hostiumque vicinitatem magnam
urbi trepidationem incutiebat [any sudden war that brings great alarm to the city on account of the magnitude of the danger and nearness of the enemy] (Forcellini’s Totius Latinitatis Lexicon). Tumult is not “sudden war,” but the magna trepidatio that it produces in Rome.
This is why, in other cases, the same term can also designate the disorder resulting from an internal insurrection or civil war. The only possible definition capable of comprising all its known uses is the one that sees tumultus as “the caesura by means of which, from the point of view of public law, exceptional measures may be taken” (Nissen 1877, 76). The relation
between bellum and tumultus is the same one that exists between war and military state of siege on the one hand and state of exception and political state of siege on the other.
3.2. It can come as no surprise that the reconstruction of something like
a theory of the state of exception in the Roman constitution has always put
Roman scholars ill at ease, given that, as we have seen, such a theory is generally
missing from public law.
In this regard, Mommsen’s stance is significant. When, in his Römisches
Staats recht, he has to confront the problem of the senatus consultum ultimum and the state of necessity that it presupposes, the best he can do is resort to the
image of the right of self-defense [ legittima difesa] (the German term for self-defense, Notwehr, recalls the term for the state of emergency, Notstand ): “Just as every citizen acquires a right of self-defense in those urgent situations in which
the protection of the community fails, so there is also a right of self-defense for
the state and for every citizen as such when the community is in danger and the
magistratical function breaks down. Though in a certain sense it stands outside
of the law [ ausserhalb des Rechts], it is nevertheless necessary to make the essence and application of this right of self-defense [ Notwehrrecht] intelligible, at least to
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the degree to which it lends itself to a theoretical exposition” (Mommsen 1969,
1: 687–88).
Mommsen’s affirmation of the state of exception’s extrajuridical character and
his doubts about the very possibility of presenting it theoretically are matched
by certain hesitations and inconsistencies in his discussion that are surprising
in a mind such as his, which has been described as rather more systematic than
historical. First of all, even though he is perfectly aware of its contiguity with
the senatus consultum ultimum, he does not examine the iustitium in the section dedicated to the state of necessity (Mommsen 1969, 1: 687–97) but in the section
that deals with the magistrates’ right of veto (263ff.). Furthermore, though he is
aware that the senatus consultum ultimum refers essentially to civil war (it is the means by which “civil war is proclaimed” [693]), and though he knows that the
form of conscription is different in the two cases (695), he does not seem to dis-
tinguish between tumultus and state of war ( Kriegsrecht). In the last volume of the Staatsrecht, he defines the senatus consultum ultimum as a “quasi-dictatorship,”
introduced into the constitutional system in the time of the Gracchi, and he adds
that “in the last century of the Republic, the Senate’s prerogative to exercise a law
of war over the citizens was never seriously contested” (3: 1243–44). Yet the image
of a “quasi-dictatorship” (which will be picked up by Plaumann [1913]) is entirely
misleading, for here not only is there no creation of a new magistracy, but indeed
every citizen seems to be invested with a floating and anomalous imperium that
resists definition within the terms of the normal order.
In his description of this state of exception, Mommsen’s acumen manifests
itself precisely at the point where it shows its limits. He observes that the power
in question absolutely exceeds the constitutional rights of the magistrates and
cannot be examined from a juridico-formal point of view. He writes,
If already the mention of the tribunes of the people and the provincial governors,
who lack imperium or hold it only nominally, prohibits us from considering this
appeal [the one contained in the senatus consultum ultimum] as merely a call to
the magistrates to energetically exercise their constitutional rights, this appears
even more clearly on the occasion when, after the senatus consultum provoked
by Hannibal’s offensive, all the ex-dictators, ex-consuls, and ex-censors assumed
imperium again and retained it until the withdrawal of the enemy. As the call
to the censors also shows, this is not a case of an exceptional prorogation of a
previously held office, which, moreover, the Senate could not have ordered in
this form. Rather, these senatus consulta cannot be judged from a juridico-formal standpoint: it is necessity that produces law, and by declaring a state of exception
[ Notstand], the Senate, as the highest advisory authority of the community, adds
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only the counsel that the now permitted and necessary personal defenses be
expediently organized. (1969, 695–96)
Here Mommsen recalls the case of a private citizen, Scipio Nasica, who,
when confronted with the consul’s refusal to act against Tiberius Gracchus in
execution of a senatus consultum ultimum, exclaims, “qui rem publicam salvam esse vult, me sequatur! [He who wishes that the state be safe, let him follow me!]”
and kills Tiberius Gracchus.
The imperium of these commanders in the state of exception [ Notstandsfeldherren]
stands beside that of the consuls more or less as the imperium of the praetor or
proconsul stands beside consular imperium. . . . The power conferred here is the
customary one of a commander, and it makes no difference whether it is directed
against an enemy who lays siege to Rome or against a citizen who rebels. . . .
Moreover, this authority of command [ Commando], however it may manifest
itself, is still less formulated than the analogous power in the state of necessity
[ Notstandscommando] in a zone militiae, and, like it, disappears on its own with the cessation of the danger. (Mommsen 1969, 1: 694–96)
In his description of this Notstandscommando, in which any and every citizen seems to be invested with an imperium that is floating and “outside of the law,”
Mommsen came as close as he could to formulating a theory of the state of ex-
ception, but he remained on this side of it.
3.3. In 1877, Adolph Nissen, professor at the University of Strasbourg, pub-
lished the monograph Das Iusititum. Eine Studie aus der römischen Rechtsge-
schichte. The book, which seeks to analyze a “legal institution that has until
now passed nearly unobserved,” is interesting for a number of reasons. Nissen
is the first to see clearly that the usual understanding of the term as a “court
holiday” ( Gerichtsferien) is entirely insufficient and that, in its technical sense, it must also be distinguished from its later meaning as “pu
blic mourning.” Let
us take an exemplary case of a iustitium, the one Cicero describes in Philippics 5.12. Confronted with the threat of Marcus Antonius, who is leading an army
toward Rome, Cicero addresses the Senate with these words: tumultum censeo
decerni, iustitium indici, saga sumi dico oportere (I assert that it is necessary
to declare a state of tumultus, proclaim a iustitium, and don the cloaks [ saga sumere means roughly that the citizens must take off their togas and prepare for combat]). Nissen readily demonstrates that translating iustitium here as “court
holiday” would simply make no sense; rather, it is a matter of, under excep-
tional conditions, putting aside the restrictions that the law imposes on the
action of the magistrates (in particular, the prohibition that the Lex Sempronia
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205
established against putting a Roman citizen to death iniussu populi [without
orders from the people]). Stillstand des Rechtes, “standstill and suspension of the law,” is the formula that, according to Nissen, both defines the term iustitium
and translates it to the letter. The iustitium “suspends the law and, in this way, all legal prescriptions are put out of operation. No Roman citizen, whether a
magistrate or a private citizen, now has legal powers or duties” (Nissen 1877,
105). Nissen has no doubts about the aim of this neutralization of the law:
“When the law was no longer able to perform its highest task—to guarantee
the public welfare—the law was abandoned in favor of expediency, and just as
in situations of necessity the magistrates were released from the restrictions of
the law by a senatus consultum, so in the most extreme situations the law was set aside. Instead of transgressing it, when it became harmful it was cleared away; it
was suspended through a iustitium” (98). In other words, according to Nissen,
the iustitium responds to the same necessity that Machiavelli unequivocally
indicated when, in the Discourses, he suggested “breaking” the order to save it (“For in a republic where such a provision is lacking, one must either observe
the orders and be ruined, or break them and not be ruined” [138]).
Viewing it from the perspective of the state of necessity ( Notfall), Nissen
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