The Omnibus Homo Sacer
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Thus, not only is the correspondence between anomie and anxiety taken for granted
(while, as we will see, ethnological and folkloristic research show the contrary), but the possibility that anomie has a more intimate and complex relation to law and the social
order is also ruled out in advance.
5.2. Equally inadequate are the conclusions of the study published by Seston
a few years later. The author seems to be aware of the possible political signifi-
cance of the iustitium as public mourning, insofar as he stages and dramatizes
the funeral of the sovereign as a state of exception: “In imperial funerals there
survives the memory of a mobilization. . . . Framing the funerary rites within
a sort of general mobilization, with all civil affairs stopped and normal politi-
cal life suspended, the proclamation of the iustitium tended to transform the
death of a man into a national catastrophe, a drama in which each person was
involved, willingly or not” (Seston 1962, 171–72). This intuition, however, comes
to nothing, and the nexus between the two forms of iustitium is accounted for
by once again presupposing that which was to be explained, that is, an element
of mourning implicit in the iustitium from the start (172–73). It is Augusto Fra-
schetti’s achievement to have underscored, in his monograph on Augustus, the
political significance of public mourning, showing that the link between the two
aspects of the iustitium lies not in a presumed character of mourning in extreme
situations or anomie but in the tumult that the sovereign’s funeral can cause.
Fraschetti recovers its origins in the violent riots that had accompanied the fu-
nerals of Caesar, which were significantly described as “seditious funerals” (Fra-
schetti 1990, 57). Just as the iustitium was the natural response to tumult in the Republican era, “it is clear how the iustitium comes to be identified with public mourning through a similar strategy, by which the deaths in the domus Augusta
are likened to civic catastrophes. . . . The upshot of this is that the bona and the mala of a single family come to be the concern of the res publica” (57). Fraschetti readily shows how, in conformity with this strategy, Augustus, beginning with
the death of his nephew Marcellus, would proclaim a iustitium every time the
family mausoleum was opened.
It is certainly possible to see the iustitium (in the sense of public morning) as
nothing other than the sovereign’s attempt to appropriate the state of exception
by transforming it into a family affair. But the connection is even more intimate
and complex.
Take, for example, Suetonius’s famous description of Augustus’s death at
Nola on August 19 of the year 14 ce. The old sovereign, surrounded by friends
and courtiers, has a mirror brought to him and, after having his hair combed
and his sagging cheeks made up, seems solely concerned to know whether he has
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acted the mimus vitae, the “farce of his life,” well. And yet, alongside this insistent theatrical metaphor, he stubbornly and almost insolently continues to ask
( identidem exquirens)—with what is not simply a political metaphor— an iam de
se tumultus foris fuisset, “if there was now a tumult outside that concerned him.”
The correspondence between anomie and mourning becomes comprehensible
only in the light of the correspondence between the death of the sovereign and
the state of exception. The original nexus between tumultus and iustitium is still present, but the tumult now coincides with the death of the sovereign, while the
suspension of the law is integrated into the funeral ceremony. It is as if the sov-
ereign, who had absorbed into his “august” person all exceptional powers (from
the tribunicia potestas perpetua [perpetual tribunicial power] to the imperium pro-consolare maius et infinitum [greater and endless proconsular imperium]) and who had, so to speak, become a living iustitium, showed his intimate anomic character at the moment of his death and saw tumult and anomie set free outside of him
in the city. As Nissen had intuited in a limpid formula (which is perhaps the
source of Benjamin’s thesis according to which the state of exception has become
the rule), “exceptional measures disappeared because they had become the rule”
(Nissen 1877, 140). The constitutional novelty of the principate can thus be seen
as an incorporation of the state of exception and anomie directly into the person
of the sovereign, who begins to free himself from all subordination to the law and
asserts himself as legibus solutus [unbound by the laws].
5.3. The intimately anomic nature of this new figure of supreme power ap-
pears clearly in the theory of the sovereign as “living law” ( nomos empsukhos),
which is elaborated among the neo-Pythagoreans in the same years that see
the rise of the principate. The formula basileus nomos empsukhos is found in
Diotogenes’s treatise on sovereignty, which was partially preserved by Stobaeus
and whose relevance to the origin of the modern theory of sovereignty must not
be underestimated. The usual philological myopia has prevented the modern
editor of the treatise from seeing the obvious logical connection between this
formula and the anomic character of the sovereign, even though this connection
is unequivocally stated in the text. The passage in question—corrupt in part,
yet nevertheless perfectly consistent—is divided into three points: (1) “The king
is the most just [ dikaiotatos] and the most just is the most legal [ nomimōtatos].”
(2) “Without justice no one can be king, but justice is without law [ aneu nomou
dikaiosunē; Delatte’s proposed insertion of the negative before dikaiosunē is totally unjustified philologically].” (3) “The just is legitimate, and the king, having become the cause of the just, is a living law” (L. Delatte 1942, 37).
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That the sovereign is a living law can only mean that he is not bound by it,
that in him the life of the law coincides with a total anomie. Diotogenes explains
this a little later with unequivocal clarity: “Because the king has an irresponsible
power [ arkhan anupeuthunon] and is himself a living law, he is like a god among
men” (L. Delatte 1942, 39). And yet, precisely because he is identified with the
law, he is held in relation to it and is indeed posited as the anomic foundation
of the juridical order. The identification between sovereign and law represents,
that is, the first attempt to assert the anomie of the sovereign and, at the same
time, his essential link to the juridical order. The nomos empsukhos is the original form of the nexus that the state of exception establishes between an outside and
an inside of the law, and in this sense it constitutes the archetype of the modern
theory of sovereignty.
The correspondence between iustitium and mourning shows its true mean-
ing here. If the sovereign is a living nomos, and if, for this reason, anomie and nomos perfectly coincide in his person, then anarchy (which threatens to loose
itself in the city upon the sovereign’s death, which is to say, when the nexus that
joins it to the law is severed) must be ritualized and controlled, transforming
the state of exception into public mourning and mourning into iustitium. Cor-
responding to the undecidability of nomos and anomie in the living body of the
sovereign is the undecidability between state of exception and public mourning
in the city. Before assuming its modern form as a decision on the emergency,
the relation between sovereignty and state of exception appears in the form of
an identity between the sovereign and anomie. Because he is a living law, the
sovereign is intimately anomos. Here too the state of exception is the—secret and truer—life of the law.
א The thesis that “the sovereign is a living law” found its first formulation in the treatise by Pseudo-Archytas On Law and Justice, which was preserved for us by Stobaeus along with Diotogenes’s treatise on sovereignty. Whether or not Gruppe’s hypothesis that these
treatises were composed by an Alexandrine Jew in the first century of our era is correct, it is certain that we are dealing with a group of texts that, under the cover of Platonic and Pythagorean categories, seek to lay the foundations for a conception of sovereignty that
is entirely unbound by laws and yet is itself the source of legitimacy. In Pseudo-Archytas’s text this is expressed in the distinction between the sovereign ( basileus), who is the law, and the magistrate ( arkhōn), who must only observe the law. The identification between the law and the sovereign leads to the division of the law into a hierarchically superior
“living” law ( nomos empsukhos) and a written law ( gramma) that is subordinate to it: I say that every community is composed of an arkhōn (the magistrate who commands), one who is commanded, and, thirdly, the laws. Of these last, the living
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one is the sovereign ( ho men empsukhos ho basileus) and the inanimate one is the
letter ( gramma). The law being the first element, the king is legal, the magistrate is in conformity (with the law), the one who is commanded is free and the entire
city is happy; but if there is any deviation, then the sovereign is a tyrant, the
magistrate is not in conformity with the law and the community is unhappy.
(A. Delatte 1922, 84)
By means of a complex strategy, which is not without analogies to Paul’s critique
of the Jewish nomos (this proximity is also at times textual: Romans 3:21: khōris nomou dikaiosunē; Diotogenes: aneu nomou dikaiosunē; and in Pseudo-Archytas the law is defined as a “letter,” gramma, exactly as in Paul), anomic elements are introduced into the polis through the person of the sovereign, with evidently no effect on the primacy of the nomos (the sovereign is, indeed, “living law”).
5.4. The secret solidarity between anomie and law comes to light in another
phenomenon, which represents a symmetrical and in some ways inverse figure
to the imperial iustitium. Folklorists and anthropologists have long been familiar with those periodic feasts (such as the Anthesteria and Saturnalia of the classical
world and the charivari and Carnival of the medieval and modern world) that
are characterized by unbridled license and the suspension and overturning of
normal legal and social hierarchies. During these feasts (which are found with
similar characteristics in various epochs and cultures), men dress up and behave
like animals, masters serve their slaves, males and females exchange roles, and
criminal behavior is considered licit or, in any case, not punishable. That is, they
inaugurate a period of anomie that breaks and temporarily subverts the social
order. Scholars have always had difficulty explaining these sudden anomic explo-
sions within well-ordered societies and, above all, why they would be tolerated
by both the religious and civil authorities.
Contrary to those interpretations that traced the anomic feasts back to agrar-
ian cycles tied to the solar calendar (Mannhardt, Frazer) or to a periodic function
of purification (Westermarck), Karl Meuli, with a brilliant intuition, instead re-
lated them to the state of suspended law that characterized some archaic juridical
institutions, such as the Germanic Friedlosigkeit or the persecution of the wargus in ancient English law. In a series of exemplary studies, he showed how the
disturbances and violent acts meticulously listed in medieval descriptions of the
charivari and other anomic phenomena precisely replicate the different phases
of the cruel ritual in which the Friedlos and the bandit were expelled from the
community, their houses unroofed and destroyed, and their wells poisoned or
made brackish. The harlequinades described in the unprecedented chalivali of
the Roman de Fauvel ( Li un montret son cul au vent, / Li autre rompet un auvent, /
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L’un cassoit fenestres et huis, / L’autre getoit le sel ou puis, / L’un getoit le bren aus visages; / Trop estoient lès et sauvages [One showed his ass to the wind, / Another smashed a roof, / One broke windows and doors, / Another threw salt in the
wells, / And another threw filth in faces; / They were truly horrible and savage])
cease to appear as parts of an innocent pandemonium, and one after the other
find their counterpart and their proper context in the Lex Baiuvariorum or in
the penal statutes of the medieval cities. The same can be said for the acts of
harassment committed during masked feasts and children’s begging rituals in
which children punished whoever denied their obligation to give a gift with acts
of violence that Halloween only distantly recalls.
Charivari is one of the many names (which vary from country to country and
region to region) for an ancient and widely diffused act of popular justice, which
occurred everywhere in similar, if not identical forms. Such forms are also used
as ritual punishments in the cyclical masked feasts and their extreme offshoots,
the traditional children’s begging rituals; one may therefore immediately draw
upon these for an interpretation of charivari-like phenomena. A closer analysis
shows that what at first sight seemed simply to be rough and wild acts of harass-
ment are in truth well-defined traditional customs and legal forms, by means
of which, from time immemorial, the ban and proscription were carried out.
(Meuli 1975, 473)
If Meuli’s hypothesis is correct, the “legal anarchy” of the anomic feasts does
not refer back to ancient agrarian rites, which in themselves explain nothing;
rather, it brings to light in a parodic form the anomie within the law, the state of
emergency as the anomic drive contained in the very heart of the nomos.
That is to say, the anomic feasts point toward a zone in which life’s maximum
subjection to the law is reversed into freedom and license, and the most unbri-
dled anomie shows its parodic connection with the nomos. In other words, they
point toward the real state of exception as the threshold of indifference between
anomie and law. In showing the mournful character of every feast and the festive
character of all mourning, law and anomie show their distance and, at the same
time, their secret solidarity. It is as if the universe of law—and more generally,
the sphere of human action insofar as it has to do with law—ultimately appeared
as a field of forces traversed by two conjoined and opposite tensions: one that
goes from norm to anomie, and another that leads from anomie to the law and
the rule. Hence a double paradigm, which marks the field of law with an essen-
tial ambiguity: on the one hand, a normative tendency in the strict sense, which
aims at crystallizing
itself in a rigid system of norms whose connection to life is,
however, problematic if not impossible (the perfect state of law, in which every-
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thing is regulated by norms); and, on the other hand, an anomic tendency that
leads to the state of exception or the idea of the sovereign as living law, in which
a force-of-law that is without norm acts as the pure inclusion of life.
The anomic feasts dramatize this irreducible ambiguity of juridical systems
and, at the same time, show that what is at stake in the dialectic between these
two forces is the very relation between law and life. They celebrate and parod-
ically replicate the anomie through which the law applies itself to chaos and to
life only on the condition of making itself, in the state of exception, life and
living chaos. And perhaps the moment has come to try to better understand the
constitutive fiction that—in binding together norm and anomie, law and state
of exception—also ensures the relation between law and life.
6
Auctoritas and Potestas
6.1. In our analysis of the state of exception in Rome, we neglected to ask
what was the foundation of the Senate’s power to suspend the law
by means of the senatus consultum ultimum and the consequent proclamation of
a iustitium. Whoever may have been the subject qualified to declare a iustitium,
it is certain that it was always declared ex auctoritate patrum. Indeed, it is well known that in Rome the term designating the Senate’s most proper prerogative
was neither imperium nor potestas, but auctoritas: auctoritas patrum is the syntagma that defines the specific function of the Senate in the Roman constitution.
In both the history of law and, more generally, philosophy and political
theory, all attempts to define this category of auctoritas—particularly in contrast to potestas—seem to run into almost insurmountable obstacles and aporias. “It
is particularly difficult,” wrote a French legal historian at the beginning of the
1950s, “to bring the various juridical aspects of the notion of auctoritas back to a unitary concept” (Magdelain 1990, 685); and, at the end of that decade, Hannah
Arendt could open her essay “What Is Authority?” with the observation that