The Omnibus Homo Sacer
Page 32
can thus interpret the senatus consultum ultimum, the declaration of tumultus,
and the iustitium as systematically connected. The consultum presupposes the tumultus, and the tumultus is the sole cause of the iustitium. These are not categories of criminal law but of constitutional law, and they designate “the caesura
by means of which, from the point of view of public law, exceptional measures
[ Ausnahmemaßregeln] may be taken” (Nissen 1877, 76).
א In the syntagma senatus consultum ultimum, the term that distinguishes it from other consulta is obviously the adjective ultimus, which appears not to have received due attention from scholars. That this term has a technical value is demonstrated by the fact
that we find it repeated as a definition of both the situation justifying the consultum ( senatus consultum ultimae necessitatis) and the vox ultima, the appeal addressed to all citizens for the salvation of the republic ( qui rem publicam salvare vult, me sequatur).
Ultimus derives from the adverb uls, which means “beyond” (as opposed to cis, “on this side”). The etymological meaning of ultimus is therefore “what is found absolutely beyond, the most extreme.” Ultima necessitas ( necedo etymologically means “I cannot go back”) indicates a zone beyond which shelter and safety are not possible. The senatus consultum ultimum lies at such an extreme outer edge, but if we now ask “With respect to what?” the only possible answer is the juridical order, which indeed gets suspended
in the iustitium. In this sense, senatus consultum ultimum and iustitium mark the limit of the Roman constitutional order.
206
HOMO SACER II, 1
א Middell’s monograph (1887), published in Latin (though the modern authors
are cited in German), falls far short of a profound theoretical inquiry into the prob-
lem. Though, like Nissen, he clearly sees the tight connection between tumultus and iustitium, Middell emphasizes the formal contrast between tumultus, which is decreed by the Senate, and iustitium, which must be proclaimed by a magistrate. From this he concludes that Nissen’s thesis (the iustitium as a total suspension of law) was excessive, for the magistrate could not independently release himself from the restrictions of the laws.
Thus rehabilitating the old interpretation of the iustitium as a court holiday, Middell lets the meaning of the institution slip away from him. For whoever may have been the
person technically qualified to proclaim a iustitium, it is certain that it was always and only declared ex auctoritate patrum [on the authority of the fathers], and the magistrate (or mere citizen) therefore acted on the basis of a state of danger that authorized the
suspension of the law.
3.4. Let us try to pin down the characteristics of the iustitium as they emerge
from Nissen’s monograph and, at the same time, develop his analyses toward a
general theory of the state of exception.
First of all, because it brings about a standstill and suspension of the entire
juridical order, the iustitium cannot be interpreted through the paradigm of
dictatorship. In the Roman constitution, the dictator was a specific kind of mag-
istrate whom the consuls had chosen and whose imperium, which was extremely broad, was conferred by a lex curiata that defined its aims. On the contrary, in
the iustitium (even in the case where it is a dictator in office who declares it), there is no creation of a new magistracy; the unlimited power enjoyed de facto
by the existent magistrates iusticio indicto [the iustitium having been declared]
results not from their being invested with a dictatorial imperium, but from the suspension of the laws that restricted their action. Both Mommsen and Plaumann are perfectly aware of this, and for this reason speak not of dictatorship
but of “quasi-dictatorship”; however, not only does the “quasi” do nothing to
eliminate the ambiguity, it in fact contributes to the institution’s being inter-
preted according to a manifestly erroneous paradigm.
This is equally true for the modern state of exception. The confusion of state
of exception and dictatorship is the limitation that prevented both Schmitt in
1921 and Rossiter and Friedrich after World War Two from resolving the aporias
of the state of exception. In both cases, the error was self-serving, since it was
certainly easier to justify the state of exception juridically by inscribing it in the
prestigious tradition of Roman dictatorship than by restoring it to its authentic,
but more obscure, genealogical paradigm in Roman law: the iustitium. From
this perspective, the state of exception is not defined as a fullness of powers, a
STATE OF EXCEPTION
207
pleromatic state of law, as in the dictatorial model, but as a kenomatic state, an
emptiness and standstill of the law.
א In modern public law theory, it is customary to define as dictatorships the totali-
tarian states born out of the crisis the democracies underwent after World War One. Thus
Hitler as well as Mussolini, Franco as well as Stalin, get indifferently presented as dictators.
But neither Hitler nor Mussolini can technically be defined as dictators. Mussolini was
the head of the government, legally invested with this office by the king, just as Hitler
was chancellor of the Reich, named by the legitimate president of the Reich. As is well
known, what characterizes both the Fascist and Nazi regimes is that they allowed the
existing constitutions (the Albertine Statute and the Weimar Constitution, respectively)
to subsist, and—according to a paradigm that has been acutely defined as “dual state”—
they placed beside the legal constitution a second structure, often not legally formalized, that could exist alongside the other because of the state of exception. From a juridical
standpoint, the term dictatorship is entirely unsuitable for describing such regimes, just as, moreover, the clean opposition of democracy and dictatorship is misleading for any
analysis of the governmental paradigms dominant today.
א Though Schmitt was not a Roman scholar, he nevertheless knew of the iustitium
as a form of the state of exception (“martial law presupposed a sort of iustitium” [Schmitt 1921, 173]), most probably from the monograph by Nissen (who is cited in the book on
dictatorship, though in relation to another text). Though he shares Nissen’s idea that the state of exception represents “an emptiness of law” (Nissen speaks of a juridical vacuum), Schmitt prefers, apropos of the senatus consultum ultimum, to speak of a “quasi-dictatorship” (which suggests a knowledge, if not of Plaumann’s study from 1913, at least of
Mommsen’s Staatsrecht).
3.5. This anomic space that comes to coincide suddenly with the space of the
city is so peculiar that it disorients not only modern scholars but also the ancient
sources themselves. Thus in describing the situation created by the iustitium,
Livy states that the consuls (the highest Roman magistrates) were in privato
abditi, reduced to the state of private citizens (Livy 1.9.7); on the other hand, Cicero writes apropos of Scipio Nasica’s gesture that though a private citizen, in
killing Tiberius Gracchus he acted “as if he were a consul” ( privatus ut si consul
esset; Tusculan Disputations 4.23.51). The iustitium seems to call into question the very consistency of the public space; yet, conversely, the consistency of the
private space is also immediately neutralized to the same degree. In truth, this
paradoxical coincidence of private and public, of ius civile and imperium, and, in the extreme case, of juridical and nonjuridical, betrays the difficulty or impossibility of thinking an essential problem: that of the natur
e of acts committed
during the iustitium. What is a human praxis that is wholly delivered over to a
208
HOMO SACER II, 1
juridical void? It is as if when faced with the opening of a wholly anomic space
for human action both the ancients and moderns retreated in fright. Though
both Mommsen and Nissen unequivocally affirm the iustitium’s character as a
juridical tempus mortuum, for Mommsen there still exists a Notstandscommando,
which he does not further identify, while for Nissen there remains a Befehl, or
“unlimited command” (Nissen 1877, 105), which is matched by an equally un-
limited obedience. But how can such a command survive in the absence of any
legal prescription or determination?
It is from this perspective that one must also view the impossibility (com-
mon to both the ancient and modern sources) of clearly defining the legal conse-
quences of those acts committed during the iustitium with the aim of saving the
res publica. The question was of particular importance, for it concerned whether
the killing of an uncondemned ( indemnatus) Roman citizen was punishable or
not. Apropos of Opimius’s assassination of Caius Gracchus’s followers, Cicero
already describes as “endless” ( infinita quaestio) the question of whether or not a person who has killed a Roman citizen while acting in execution of a senatus consultum ultimum can be punished ( De oratore 2.31.134). Nissen, for his part, denies that either the magistrate who had acted in execution of a senatus consultum or
the citizens who had followed him could be punished once the iustitium was
over; but he is contradicted by the fact that Opimius was nevertheless brought
to trial (though he was acquitted), and Cicero was sentenced to exile as a conse-
quence of his bloody repression of the Catiline conspiracy.
In truth, the entire question is poorly put, for the aporia becomes clear only
once we consider that because they are produced in a juridical void, the acts
committed during the iustitium are radically removed from any juridical deter-
mination. From a legal standpoint it is possible to classify human actions as leg-
islative, executive, or transgressive acts. But it is entirely clear that the magistrate
or private citizen who acts during the iustitium neither executes nor transgresses a law, and even less does he create law. All scholars agree on the fact that the
senatus consultum ultimum has no positive content; it merely expresses a counsel
with an extremely vague formula ( videant consules . . . [let the consuls see to it
. . . ]) that leaves the magistrate or whoever acts for him entirely free to act as
he sees fit, or even not to act at all. If we wanted at all costs to give a name to a
human action performed under conditions of anomie, we might say that he who
acts during the iustitium neither executes nor transgress the law, but inexecutes
[ inesegue] it. His actions, in this sense, are mere facts, the appraisal of which, once the iustitium is expired, will depend on the circumstances. But, as long
as the iustitium lasts, they will be absolutely undecidable, and the definition
STATE OF EXCEPTION
209
of their nature—whether executive or transgressive, and, in the extreme case,
whether human, bestial, or divine—will lie beyond the sphere of law.
3.6. Let us now try to summarize the results of our genealogical investigation
of the iustitium in the form of theses.
(1) The state of exception is not a dictatorship (whether constitutional or
unconstitutional, commissarial or sovereign) but a space devoid of law, a zone
of anomie in which all legal determinations—and above all the very distinction
between public and private—are deactivated. Thus, all those theories that seek
to annex the state of exception immediately to the law are false; and so too are
both the theory of necessity as the originary source of law and the theory that
sees the state of exception as the exercise of a state’s right to its own defense or
as the restoration of an originary pleromatic state of the law (“full powers”). But
fallacious too are those theories, like Schmitt’s, that seek to inscribe the state of
exception indirectly within a juridical context by grounding it in the division
between norms of law and norms of the realization of law, between constituent
power and constituted power, between norm and decision. The state of necessity
is not a “state of law,” but a space without law (even though it is not a state of
nature, but presents itself as the anomie that results from the suspension of law).
(2) This space devoid of law seems, for some reason, to be so essential to the
juridical order that it must seek in every way to assure itself a relation with it, as
if in order to ground itself the juridical order necessarily had to maintain itself
in relation with an anomie. On the one hand, the juridical void at issue in the
state of exception seems absolutely unthinkable for the law; on the other, this
unthinkable thing nevertheless has a decisive strategic relevance for the juridical
order and must not be allowed to slip away at any cost.
(3) The crucial problem connected to the suspension of the law is that of
the acts committed during the iustitium, the nature of which seems to escape all legal definition. Because they are neither transgressive, executive, nor legislative,
they seem to be situated in an absolute non-place with respect to the law.
(4) The idea of a force-of-law is a response to this undefinability and this
non-place. It is as if the suspension of law freed a force or a mystical element, a
sort of legal mana (the expression is used by Wagenvoort to describe the Roman
auctoritas [Wagenvoort 1947, 106]), that both the ruling power and its adversar-
ies, the constituted power as well as the constituent power, seek to appropriate.
Force of law that is separate from the law, floating imperium, being-in-force
[ vigenza] without application, and, more generally, the idea of a sort of “degree
zero” of the law—all these are fictions through which law attempts to encom-
210
HOMO SACER II, 1
pass its own absence and to appropriate the state of exception, or at least to
assure itself a relation with it. Though these categories (just like the concepts of
mana or sacer in the anthropology and religious studies of the nineteenth and twentieth centuries) are really scientific mythologemes, this does not mean that
it is impossible or useless to analyze the function they perform in the law’s long
battle over anomie. Indeed, it is possible that what is at issue in these categories
is nothing less than the definition of what Schmitt calls “the political.” The es-
sential task of a theory of the state of exception is not simply to clarify whether
it has a juridical nature or not, but to define the meaning, place, and modes of
its relation to the law.
4
Gigantomachy Concerning a Void
4.1. It is from this perspective that we will now read the debate between
Walter Benjamin and Carl Schmitt on the state of exception. The
exoteric dossier of this debate, which took place in various forms and at differing
levels of intensity between 1925 and 1956, is not very large: Benjamin’s citation of
Political Theology in The Origin of German Trag
ic Drama; the curriculum vitae of 1928 and Benjamin’s letter to Schmitt from December 1930 (both of which attest
to an interest in and admiration for the “fascist public law theorist” [Tiedemann,
editorial note, in Benjamin, Gesammelte Schriften, 1.3: 886] and have always appeared scandalous); and Schmitt’s citations of and references to Benjamin in his
book Hamlet or Hecuba, written when the Jewish philosopher had been dead for sixteen years. This dossier was further enlarged with the publication in 1988
of the letters Schmitt wrote to Hansjörg Viesel in 1973, in which Schmitt states
that his 1938 book on Hobbes had been conceived as a “response to Benjamin
[that has] remained unnoticed” (Viesel 1988, 14; see Bredekamp’s observations,
1998, 913).
The esoteric dossier, however, is larger and has yet to be explored in all its
implications. Indeed, we will attempt to demonstrate that the first document
that must be included in the dossier is not Benjamin’s reading of Political The-
ology, but Schmitt’s reading of Benjamin’s essay “Critique of Violence” (1921).
The essay was published in issue 47 of the Archiv für Sozialwissenschaften und
Sozialpolitik, a journal coedited by Emil Lederer, who was then a professor at the University of Heidelberg (and later at the New School for Social Research in
New York), and who was one of the people Benjamin frequented at that time.
Now, not only did Schmitt publish numerous essays and articles (including the
first version of The Concept of the Political ) in the Archiv between 1924 and 1927, but a careful examination of the footnotes and bibliographies of his writings
shows that from 1915 on Schmitt was a regular reader of the journal (he cites,
among others, the issues immediately preceding and following the one con-
taining Benjamin’s essay). As an avid reader of and contributor to the Archiv,
211
212
HOMO SACER II, 1
Schmitt could not easily have missed a text like “Critique of Violence,” which, as
we will see, touched upon issues that were essential for him. Benjamin’s interest
in Schmitt’s theory of sovereignty has always been judged as scandalous (Taubes