the vis in question cannot be a material force or violence but only the force of
the rite, that is a “force that compels, but does not seek to be or need to be ap-
plied materially in an act of violence, even a simulated one” (ibid., 59). Noailles
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cites in this connection a passage from Aulus Gellius in which the vis civilis . . .
quae verbo diceretur (the civil force, which is said with the word) is opposed to
the vis quae manu fieret, cum vi bellica et cruenta (the force which is carried out with hands, with warlike and cruel force). Developing the thesis of Noailles,
one can hypothesize that the “force said with the word,” which is in question
in the action of the vindex as also in the oath, is the force of effective speech, as the originary force of law. The sphere of law is that of effective speech, of a
“saying” that is always indicere (to proclaim, to declare solemnly), ius dicrere (to say what conforms to the law), and vim dicere (to say the effective word). The
force of speech that is in question is, according to Noailles, the same one that is
expressed in the formula of the Twelve Tables: uti lingua nuncupassit, ita ius esto
(as language has said, so the law is). Nuncupare is explained etymologically as
nomen capere, to take the name:
The general characteristic of all the nuncupationes, whether in sacred law or
civil law, is that of delimiting and circumscribing. . . . The essential goal of the
formulary is that of determining the object, of seizing it. Thus one can perceive
the profound relationship that exists between gesture and speech, and the strict
correlation that unites them. Rem manu capere, nomen verbis capere, such are
the two cornerstones of this act of total capture. It is well known what mystical
importance the Romans attached to the nomen as the means to acquire mastery
over the res that they designated. The first condition for acting with effectiveness on one of the mysterious forces of nature, on a divine potency, was being able to
pronounce its name. (Noailles [1], 306)
It is sufficient to set aside the recourse to “divine potency,” by now all too familiar
to us, for the nature and function of the oath in the trial to become evident. The
“just oath” is that of which the iudex, who in the trial is substituted for the archaic vindex, “declares and recognizes the force” ( vim dicit); it is, therefore, that which has completed in the most correct and effective way the “performance” implicit
in the oath. The act of the counterparty is not, for this reason, necessarily an epi-
orkos, perjury: it is simply an act whose performative vis is less perfect than that of the victor. The “force” that is in question here is that quae verbo diceretur, the force of speech. One must therefore suppose that in the sacramentum, as in every
oath, there was implied a performative experience of language, in which the utter-
ance of the formula, the nomen capere of the nuncupatio, had the force of actualizing what it said. There is no need to drag in religion, myth, or magic to explain
this force: it is a matter of something that is verified again every time the formula
of a verbal juridical act is pronounced. It is not by means of a sacred power that
the spouses, uttering their “I do” before a civil official, find themselves effectively
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united in marriage; it is not by means of magic that the verbal agreement of a
sale immediately transfers the ownership of movable goods. The uti lingua nun-
cupassit, ita ius esto is not a magico-sacral formula; it is, rather, the performative expression of the nomen capere that the law has preserved at its center, drawing
it from the original experience of the act of speech that takes place in the oath.
א Magdelain has shown that the verbal mode proper to law, both sacred and civil, is
the imperative. Both in the leges regiae and the Twelve Tables the imperative formula ( sacer esto, paricidas esto, aeterna auctoritas esto [be sacer, be a parricide, be an eternal authority], etc.) is the normal one. The same holds for juridical transactions: emptor esto [be the buyer]
in the mancipatio [ritual transfer of goods], heres esto [be the heir] in testaments, tutor esto
[be the guardian], etc., as also in the formulas of the pontifical books: piaculum data, exta porriciunto [let the entrails be placed as an offering] (Magdelain, 33–35; Johnson, 334–35).
The same verbal mode is found, as we have seen (§14 above), in formulas of the oath.
Let us look at the imperative formula of the Twelve Tables cited above: uti lingua nuncupassit, ita ius esto. Festus, who has transmitted its text to us, explains the term nuncupata as nominata, certa, nominibus propriis pronuntiata (the sum of money named, determined, pronounced in precise terms [Riccobono, 43; Festus, 176.3–4]). The formula expresses,
that is, the correspondence between correctly pronounced nomination and juridical effect.
The same can be gathered from the formula of the inauguratio of the temple on the arx capitolina: templa tescaque me ita sunto, quoad ego ea rite lingua nuncupavero (temples and sacred lands be mine in this manner, up to where I have named them with my tongue
according to the rites [Varro, 7.8]); here, as well, the imperative expresses the conformity between words and things that follows on correct naming. The nuncupatio, the taking of the name, is in this sense the originary juridical act, and the imperative, which Meillet
defines as the primitive form of the verb, is the verbal mode of nomination in its perfor-
mative juridical effect. To name, to take a name, is the originary form of the command.
א We know from the sources that, in the Roman trial, the term sacramentum did
not immediately designate the oath but the sum of money (of fifty or five hundred asses) that was, so to speak, put at stake by means of the oath. The one who did not succeed in
proving his right lost the sum, which was paid into the public treasury. “If it is that money which comes into court in lawsuits, it is called sacramentum, ‘sacred deposit,’ from sacrum,
‘sacred, consecrated’: the plaintiff and the defendant each deposited with the praetor [or, according to some editors, the pontifex] five hundred copper asses for some kinds of
cases, and for other kinds the trial was conducted likewise under a deposit of some other
fixed amount specified by law; he who won the decision got back his sacramentum from the consecration, but the loser’s deposit passed into the state treasury” (Varro, 5.180). The same etymology is found in Festus (468.16–17): Sacramentum aes significat quod poenae
nomine pendetur ( sacramentum designates the money paid as a penalty).
The object of the sacratio that takes place in the trial is therefore the money. The sacer, that which was consecrated to the gods, was not in this case, as in the sanctions of the
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Twelve Tables, a living being but a sum of money. Cicero informs us that originally the
object of the procedural sacratio was not money but livestock (Noailles [1], 280). Hence the hypothesis of some historians of law, according to which it was the party who pronounced
the oath who was rendered in this way sacer, that is killable and unsacrificeable. In any case what is essential is that the sacredness here inhered, beyond all doubt, in the money, that the money was literally and not metaphorically “sacred.” The sacral aura that surrounds
money in our culture in all likelihood has its origin in this vicarious consecration of a
sum of money in place of a living being; as sacramentum, money is truly equal to life.
27. Let us now attempt to fix in a
series of theses the new position of the oath
that results from the analysis developed so far.
(1) Scholars have constantly explained, in a more or less explicit way, the
institution of the oath by means of a reference to the magico-religious sphere,
to a divine power, or to “religious forces” that intervene to guarantee its efficacy
by punishing perjury. With a curious circularity the oath was thus in fact in-
terpreted, as in Hesiod, as that which serves to prevent perjury. My hypothesis
is exactly the reverse: the magico-religious sphere does not logically preexist the
oath, but it is the oath, as originary performative experience of the word, that
can explain religion (and law, which is closely connected with it). For this rea-
son Horkos is, in the classical world, the most ancient being, the sole potency to which the gods are submitted for punishment; for this reason, in monotheism,
God is identified with the oath (he is the being whose word is an oath or who
coincides with the position of the true and efficacious word in principio).
(2) The proper context of the oath is therefore among those institutions,
like the fides, whose function is to performatively affirm the truth and trust-
worthiness of speech. Horkia are par excellence pista, reliable, and the gods, in paganism, are performatively summoned in the oath essentially to testify to
this reliability. The monotheistic religions, above all Christianity, inherit from
the oath the centrality of faith in the word as the essential content of religious
experience. Christianity is, in the proper sense of the term, a religion and a
divinization of the Logos. The attempt to reconcile faith as the performative
experience of a veridiction with belief in a series of dogmas of an assertive type
is the task and, at the same time, the central contradiction of the Church, which
obliges it, against the clear evangelical command, to technicalize oath and curses
in specific juridical institutions. For this reason philosophy, which does not seek
to fix veridiction into a codified system of truth but, in every event of language,
puts into words and exposes the veridiction that founds it, must necessarily put
itself forward as vera religio [true religion].
(3) It is in the same sense that the essential proximity between oath and sacra-
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tio (or devotio) must be understood. The interpretation of sacertas as an originary performance of power through the production of a killable and unsacrificeable
bare life must be completed in the sense that, even before being a sacrament of
power, the oath is a consecration of the living human being through the word
to the word. The oath can function as a sacrament of power insofar as it is first
of all the sacrament of language. This original sacratio that takes place in the oath takes the technical form of the curse, of the politikē ara that accompanies the
proclamation of the law. Law is, in this sense, constitutively linked to the curse,
and only a politics that has broken this original connection with the curse will
be able one day to make possible another use of speech and of the law.
28. This is the moment to situate the oath archaeologically in its relationship
to anthropogenesis. In the course of our investigation we have often looked to
the oath as the historical testimony of the experience of language in which man
was constituted as a speaking being. It is in reference to such an event that Lévi-
Strauss, in his study on Mauss that I have previously cited, spoke of a fundamental
inadequation between signifier and signified that was produced in the moment in
which, for the speaking man, the universe suddenly became meaningful:
At the moment when the entire universe all at once became significant, it was
none the better known for being so, even if it is true that the emergence of
language must have hastened the rhythm of the development of knowledge. So
there is a fundamental opposition, in the history of the human mind, between
symbolism, which is characteristically discontinuous, and knowledge, charac-
terized by continuity. Let us consider what follows from that. It follows that the
two categories of the signifier and the signified came to be constituted simul-
taneously and interdependently, as complementary units; whereas knowledge,
that is, the intellectual process which enables us to identify certain aspects of
the signifier and certain aspects of the signified . . . only got started very slowly.
. . . The universe signified long before people began to know what it signified.
(Lévi-Strauss, xlvii/60–61)
The consequence of this lost equalization is that man
has from the start had at his disposition a signifier-totality which he is at a loss to
know how to allocate to a signified, given as such, but no less unknown for being
given. There is always a non-equivalence or “inadequation” between the two, a
non-fit and overspill which divine understanding alone can soak up; this generates
a signifier-surfeit relative to the signifieds to which it can be fitted. So in man’s ef-
fort to understand the world, he always disposes of a surplus of signification (which
he shares out among things in accordance with the laws of the symbolic thinking
which it is the task of ethnologists and linguists to study). (Ibid., lxix/62–63)
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We have seen how, according to Lévi-Strauss, it is precisely this inadequa-
tion that explains magico-religious notions such as mana, which represent that
“floating” or excessive and, in short, empty signifier that constitutes “the disabil-
ity of every finite thought” (ibid., lxix/63). As mythology does in Max Müller,
so also for Lévi-Strauss, even if certainly in a different sense, magico-religious
notions represent in some way a malady of language, the “opaque shadow” that
language casts on thought and that permanently impedes the welding together
of signification and consciousness, of language and thought.
The predominance of the cognitive paradigm ensures that, in Lévi-Strauss,
the event of anthropogenesis is seen solely in its gnoseological aspect, as if,
in the becoming human of man, there were not necessarily and above all ethical
(and, perhaps, also political) implications at issue. What I would like to suggest
here is that when, following on a transformation whose study is not a task of
the human sciences, language appeared in man, the problem it created cannot
have been solely, as according to the hypothesis of Lévi-Strauss, the cognitive
aspect of the inadequation of signifier and signified that constitutes the limit
of human knowledge. For the living human being who found himself speak-
ing, what must have been just as—perhaps more—decisive is the problem of
the efficacy and truthfulness of his word, that is, of what can guarantee the
original connection between names and things, and between the subject who
has become a speaker—and, thus capable of asserting and promising—and
his actions. With a tenacious prejudice perhaps connected to their profession,
scientists have always considered anthropogenesis to be a problem of an exclu-
sively cognitive order, as if the becoming human of man were solely a question
of int
elligence and brain size and not also one of ethos, as if intelligence and
language did not also and above all pose problems of an ethical and political
order, as if Homo sapiens was not also, and of course precisely for that reason,
a Homo iustus.
Linguists have often sought to define the difference between human and
animal language. Benveniste has thus opposed the language of bees, a fixed
code of signals whose content is defined once and for all, to human language,
which can be analyzed into morphemes and phonemes whose combinations
allow for a virtually infinite potentiality of communication (Benveniste [3],
62/54). Once more, however, the specificity of human language with respect
to animal language cannot reside solely in the peculiarity of the instrument,
which later analyses could find—and, in fact, continually do find—in this or
that animal language. It consists, rather, no less decisively in the fact that,
uniquely among living things, man is not limited to acquiring language as one
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capacity among others that he is given but has made of it his specific poten-
tiality; he has, that is to say, put his very nature at stake in language. Just as, in the words of Foucault, man “is an animal whose politics places his existence as
a living being in question” (Foucault, 143), so also is he the living being whose
language places his life in question. These two definitions are, in fact, inseparable and constitutively dependent on each other. The oath is situated at their
intersection, understood as the anthropogenic operator by means of which the
living being, who has discovered itself speaking, has decided to be responsible
for his words and, devoting himself to the logos, to constitute himself as the
“living being who has language.” In order for something like an oath to be able
to take place, it is necessary, in fact, to be able above all to distinguish, and to
articulate together in some way, life and language, actions and words—and
this is precisely what the animal, for which language is still an integral part
of its vital practice, cannot do. The first promise, the first—and, so to speak,
transcendental— sacratio is produced by means of this division, in which man,
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