The Omnibus Homo Sacer

by Giorgio Agamben

  As often happens—and, moreover, as scholars did not fail to observe—the

  rediscovery of the concept (no fewer than fifteen important monographs on auc-

  toritas appeared in the following ten years) kept pace with the growing weight

  that the authoritarian principle was assuming in the political life of European

  societies. “Auctoritas,” wrote a German scholar in 1937, “that is, the fundamental

  concept of public law in our modern authoritarian states, can only be under-

  stood—not only literally but also as regards the content—starting from Roman

  law of the time of the principate” (Wenger 1939, 152). And yet it is possible that

  this nexus between Roman law and our own political experience is precisely

  what still remains for us to investigate.

  6.7. If we now return to the passage from the Res gestae, the decisive point is that here Augustus defines the specificity of his constitutional power not in the

  certain terms of a potestas, which he says he shares with those who are his colleagues in the magistracy, but in the vaguer terms of an auctoritas. The meaning of the name “Augustus,” which the Senate conferred on him on January 16, 27 bce,

  accords entirely with this claim: it comes from the same root as augeo and auctor and, as Dio Cassius notes, “does not mean a potestas [ dunamis] . . . but shows the splendor of auctoritas [ tēn tou axiōmatos lamprotēta]” ( Roman History 53.18.2).

  In the edict of January 13 of the same year, in which he declares his intention

  to restore the republican constitution, Augustus defines himself as optimi status

  auctor [ auctor of the highest standing]. As Magdelain has acutely observed, the term auctor here does not have the generic meaning of “founder,” but the technical meaning of “guarantor in a mancipatio. ” Because Augustus conceives of

  the restoration of the Republic as a transfer of the res publica from his hands to those of the people and the Senate (see Res gestae 34.1), it is possible that “in the

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  formula auctor optimi status . . . the term auctor has a rather precise legal meaning and refers to the idea of the transfer of the res publica. . . . Augustus would thus be the auctor of the rights rendered to the people and the Senate, just as,

  in a mancipation, the mancipio dans is the auctor of the power acquired by the mancipio accipiens over the transferred object” (Magdelain 1947, 57).

  In any case, the Roman principate—which we are used to describing with

  a term (emperor) that refers back to the imperium of the magistrate—is not a

  magistracy, but an extreme form of auctoritas. Heinze has described this contrast perfectly: “Every magistracy is a preestablished form, which the individual enters

  into and which constitutes the source of his power; auctoritas, on the other hand, springs from the person, as something that is constituted through him, lives only

  in him, and disappears with him” (Heinze 1925, 356). Though Augustus receives

  all magistracies from the people and the Senate, auctoritas is instead bound to

  his person and constitutes him as auctor optimi status, as he who legitimates and guarantees the whole of Roman political life.

  Hence the peculiar status of his person, which manifests itself in a fact whose

  importance has not yet been fully appreciated by scholars. Dio Cassius informs

  us that Augustus “made all of his house public [ tēn oikian edēmosiōse pasan] . . .

  so as to live at once in public and in private [ hin’ en tois idiois hama kai en tois

  koinois oikoiē]” ( Roman History 55.12.5). It is the auctoritas that he embodies, and not the magistracies with which he has been invested, that make it impossible

  to isolate in him something like a private life and domus. This is also the sense in which one must interpret the fact that a signum to Vesta is dedicated in the house of Augustus on the Palatine. Fraschetti has rightly observed that, given the close

  connection between the cult of Vesta and the cult of the public Penates of the

  Roman people, this meant that the Penates of Augustus’s family were identified

  with those of the Roman people and that therefore “the private cults of a family

  . . . and preeminently communal cults in the sphere of the city (those of Vesta

  and the public Penates of the Roman people) would seem in fact to become

  homologous in the house of Augustus” (Fraschetti 1990, 359). Unlike the life

  of the common citizens, the “ august” life can no longer be defined through the

  opposition of public and private.

  א It is in this light that Kantorowicz’s theory of the king’s two bodies should be reread, so that we can make some refinements to it. Kantorowicz (who generally undervalues the

  importance of the Roman precedent to the theory that he seeks to reconstruct for the English and French monarchies) does not relate the distinction between auctoritas and potestas to the problem of the king’s two bodies and the principle dignitas non moritur [ dignitas does not die]. And yet it is precisely because the sovereign was first and foremost the embodiment of

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  an auctoritas, and not solely of a potestas, that auctoritas was so closely bound to his physical person, thus requiring the complicated ritual of constructing a wax double of the sovereign in the funus imaginarium. The end of a magistracy as such does not entail a problem of bodies at all: One magistrate succeeds another without having to presuppose the immortality of

  the office. Only because, from the Roman princeps on, the sovereign expresses an auctoritas in his very person, only because in “august” life public and private have entered into a zone of absolute indistinction, does it becomes necessary to distinguish two bodies in order to ensure the continuity of dignitas (which is simply a synonym for auctoritas).

  To understand modern phenomena such as the Fascist Duce and the Nazi Führer, it is important not to forget their continuity with the principle of the auctoritas principis. As we have already observed, even though Mussolini held the office of head of the government

  and Hitler that of chancellor of the Reich (just as Augustus held imperium consolare or potestas tribunica) neither the Duce nor the Führer represents a constitutionally defined public office or magistracy. The qualities of Duce or Führer are immediately bound to the physical person and belong to the biopolitical tradition of auctoritas and not to the legal tradition of potestas.

  6.8. It is significant that modern scholars have been so ready to uphold the

  claim that auctoritas inheres immediately in the living person of the pater or the princeps. What was clearly an ideology or a fictio intended to ground the preeminence or, in any case, the specific rank of auctoritas in relation to potestas thus becomes a figure of law’s immanence to life. It is not by chance that this

  should happen precisely in the years when the authoritarian principle saw an

  unexpected rebirth in Europe through fascism and National Socialism. Though

  it was obvious that there cannot be some sort of eternal human type periodically

  embodied in Augustus, Napoleon, or Hitler, and that there are only more or

  less similar legal apparatuses (the state of exception, the iustitium, the auctoritas principis, Führertum) that are put to use under more or less different circumstances, the power that Weber called “charismatic” was nevertheless linked in

  1930s Germany (and elsewhere) to the concept of auctoritas and elaborated in a

  theory of Führertum as the originary and personal power of a leader. Thus in 1933, in a short article that seeks to outline the fundamental concepts of National Socialism, Schmitt defines the principle of Führung through “the ancestral identity

  between leader and followers” (note the use of Weberian concepts). 1938
saw the

  publication of the Berlin jurist Heinrich Triepel’s book Die Hegemonie, which

  Schmitt quickly reviewed. In its first section, the book expounds a theory of

  Führertum as an authority founded not on a preexisting order but on a personal

  charisma. The Führer is defined through psychological categories (energetic, con-

  scious, and creative will), and his unity with the social group and the originary

  and personal character of his power are strongly underscored.

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  Then in 1947, the elderly Roman scholar Pietro De Francisci published

  Arcana imperii, in which he dedicates a good deal of space to an analysis of the

  “primary type” of power that he (seeking to distance himself from fascism with a

  sort of euphemism) defines as ductus (and the leader in which it is embodied as

  ductor). De Francisci transforms the Weberian tripartition of power (traditional,

  legal, charismatic) into a dichotomy drawn on the opposition of authority and

  power [ potestà]. The authority of the ductor or the Führer can never be derivative but is always originary and springs from his person; furthermore, in its essence it

  is not coercive, but is rather founded, as Triepel had already shown, on consent

  and the free acknowledgment of a “superiority of value.”

  Though both Triepel and De Francisci had fascist and Nazi techniques of

  government before their eyes, neither appears to have been aware that the power

  they describe attains its appearance of originality from the suspension or neu-

  tralization of the juridical order—that is, ultimately, from the state of exception.

  “Charisma”—as its reference to Paul’s kharis [grace] (which Weber knew per-

  fectly well) could have suggested—coincides with the neutralization of law and

  not with a more originary figure of power.

  In each case, what the three authors seem to take for granted is that author-

  itarian-charismatic power springs almost magically from the very person of the

  Führer. Law’s claim that it coincides at an eminent point with life could not have been affirmed more forcefully. In this regard, the theory of auctoritas converged

  at least in part with the tradition of juridical thought that saw law as ultimately

  identical with—or immediately articulated to—life. Savigny’s maxim (“Law is

  nothing but life considered from a particular point of view”) finds a counterpart

  in the twentieth century in Rudolph Smend’s thesis that “the norm receives

  the grounds of its validity [ Geltungsgrund ], the quality of its validity, and the content of its validity from life and the sense attributed to it, just as, inversely,

  life must be understood only in relation to its assigned and regulated vital sense

  [ Lebenssinn]” (Smend 1956, 300). Just as, in Romantic ideology, something like

  a language became fully comprehensible only in its immediate relation to a peo-

  ple (and vice versa), so law and life must be tightly implicated in a reciprocal

  grounding. The dialectic of auctoritas and potestas expressed precisely this implication (and in this sense, one can speak of an originary biopolitical character

  of the paradigm of auctoritas). The norm can be applied to the normal situa-

  tion and can be suspended without totally annulling the juridical order because

  in the form of auctoritas, or sovereign decision, it refers immediately to life, it springs from life.

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  6.9. It is perhaps possible at this point to look back upon the path traveled

  thus far and draw some provisional conclusions from our investigation of the

  state of exception. The juridical system of the West appears as a double structure,

  formed by two heterogeneous yet coordinated elements: one that is normative

  and juridical in the strict sense (which we can for convenience inscribe under

  the rubric potestas) and one that is anomic and metajuridical (which we can call

  by the name auctoritas).

  The normative element needs the anomic element in order to be applied, but,

  on the other hand, auctoritas can assert itself only in the validation or suspension of potestas. Because it results from the dialectic between these two somewhat

  antagonistic yet functionally connected elements, the ancient dwelling of law is

  fragile and, in straining to maintain its own order, is always already in the pro-

  cess of ruin and decay. The state of exception is the device that must ultimately

  articulate and hold together the two aspects of the juridico-political machine by

  instituting a threshold of undecidability between anomie and nomos, between life and law, between auctoritas and potestas. It is founded on the essential fiction according to which anomie (in the form of auctoritas, living law, or the force of law) is still related to the juridical order and the power to suspend the norm

  has an immediate hold on life. As long as the two elements remain correlated

  yet conceptually, temporally, and subjectively distinct (as in republican Rome’s

  contrast between the Senate and the people, or in medieval Europe’s contrast

  between spiritual and temporal powers) their dialectic—though founded on a

  fiction—can nevertheless function in some way. But when they tend to coincide

  in a single person, when the state of exception, in which they are bound and

  blurred together, becomes the rule, then the juridico-political system transforms

  itself into a killing machine.

  6.10. The aim of this investigation—in the urgency of the state of exception

  “in which we live”—was to bring to light the fiction that governs this arcanum

  imperii [secret of power] par excellence of our time. What the “ark” of power

  contains at its center is the state of exception—but this is essentially an empty

  space, in which a human action with no relation to law stands before a norm

  with no relation to life.

  This does not mean that the machine, with its empty center, is not effective;

  on the contrary, what we have sought to show is precisely that it has continued to

  function almost without interruption from World War One, through fascism and

  National Socialism, and up to our own time. Indeed, the state of exception has

  today reached its maximum worldwide deployment. The normative aspect of law

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  can thus be obliterated and contradicted with impunity by a governmental vio-

  lence that— while ignoring international law externally and producing a perma-

  nent state of exception internally—nevertheless still claims to be applying the law.

  Of course, the task at hand is not to bring the state of exception back within

  its spatially and temporally defined boundaries in order to then reaffirm the

  primacy of a norm and of rights that are themselves ultimately grounded in it.

  From the real state of exception in which we live, it is not possible to return to

  the state of law [ stato di diritto], for at issue now are the very concepts of “state”

  and “law.” But if it is possible to attempt to halt the machine, to show its central

  fiction, this is because between violence and law, between life and norm, there

  is no substantial articulation. Alongside the movement that seeks to keep them

  in relation at all costs, there is a countermovement that, working in an inverse

  direction in law and in life, always seeks to loosen what has been artific
ially and

  violently linked. That is to say, in the field of tension of our culture, two opposite

  forces act, one that institutes and makes, and one that deactivates and deposes.

  The state of exception is both the point of their maximum tension and—as it co-

  incides with the rule—that which threatens today to render them indiscernible.

  To live in the state of exception means to experience both of these possibilities

  and yet, by always separating the two forces, ceaselessly to try to interrupt the

  working of the machine that is leading the West toward global civil war.

  6.11. If it is true that the articulation between life and law, between anomie

  and nomos, that is produced by the state of exception is effective though fictional, one can still not conclude from this that somewhere either beyond or before

  juridical apparatuses there is an immediate access to something whose fracture

  and impossible unification are represented by these apparatuses. There are not

  first life as a natural biological given and anomie as the state of nature, and then their implication in law through the state of exception. On the contrary, the very

  possibility of distinguishing life and law, anomie and nomos, coincides with their articulation in the biopolitical machine. Bare life is a product of the machine

  and not something that preexists it, just as law has no court in nature or in the

  divine mind. Life and law, anomie and nomos, auctoritas and potestas, result from the fracture of something to which we have no other access than through the

  fiction of their articulation and the patient work that, by unmasking this fiction,

  separates what it had claimed to unite. But disenchantment does not restore the

  enchanted thing to its original state: According to the principle that purity never

  lies at the origin, disenchantment gives it only the possibility of reaching a new

  condition.

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  To show law in its nonrelation to life and life in its nonrelation to law means

  to open a space between them for human action, which once claimed for itself

  the name of “politics.” Politics has suffered a lasting eclipse because it has been

  contaminated by law, seeing itself, at best, as constituent power (that is, violence