The Omnibus Homo Sacer

by Giorgio Agamben

The first to thematically formulate the problem of the existence of purely penal

  laws is Henry of Ghent. He does it in the canonical form of a quaestio that asks “if it is possible to transgress penal precepts without committing a sin, provided that

  one pays the penalty established for his transgression” (Mazon, p. 247). The exam-

  ple evoked is that of a monastic rule that prohibits speaking after compline. The

  formulation of the duty can occur in two ways: either first establishing the legal

  duty ( nullus loquatur post Completorium, “no one may speak after compline”), then

  causing it to be followed by a penal sanction ( si aliquis post Completorium loquatur,

  dicat septem Psalmos poenitentiales, “if anyone speaks after compline, let him say seven penitential psalms”); or formulating the observance and the penalty together

  ( quicumque loquatur post Completorium dicet septem Psalmos poenitentiales, “who-

  ever speaks after compline says seven penitential psalms”). Only in the second

  case—and if it is ascertained that the intention of the legislator was not to exclude

  every possibility of transgressions, but only to make sure that the transgression did

  not occur without a rational motive—can one speak of a transgression without

  fault and, consequently, of a merely penal law.

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  It is significant that only in later scholasticism, starting from the sixteenth, is

  this problem, which is merely evoked in Henry of Ghent, transformed into that

  of the legal nature of religious rules. The field was divided between those who,

  like Peter of Aragon, state that since a law must obligate both ad culpam and ad poenam, the rules of the religious are not truly laws, but rather admonitions or

  advice ( proprie loquendo non sunt leges, sed potius quaedam decreta hominum prudentum, habentia vim magis consilii quam legis; ibid., p. 269), and those who, like Suárez, maintain that, since laws can also obligate only as to penalty, rules are

  not advice, but actually laws ( item quia sunt actus iurisdictionis et superioris imponenti necessitatem aliquam sic operandi, ergo excedunt rationem consilii; p. 282).

  2.6. The problem of the relationship between the rules and the law is compli-

  cated by the fact that beginning at a certain point, the profession of the monastic

  life was associated with the pledge of a vow. The vow is an institution that, like

  the oath, most likely belongs to that more archaic sphere in which it is impossible

  to distinguish between law and religion, which Gernet improperly called “pre-

  law.” Their essential characteristics are known to us through Roman testimonies,

  in the context of which it appears as a form of consecration to the gods ( sacratio), whose prototype is in the devotio through which the consul Decio Mure, on the

  eve of battle, decided to consecrate his life to the infernal gods to obtain victory.

  An object of consecration can also be a sacrificial victim, which is immolated on

  condition of obtaining the fulfillment of a desire. As Benveniste writes:

  in Roman religious law the “vow” was the subject of strict rules. First there had

  to be a nuncupatio, the solemn enunciation of the vows for the “devotion” to be

  accepted by the representatives of the State and religion in the proper set terms.

  Then the vow had to be formulated, votum concipere, which meant conforming

  to a given model. This formula, in which the priest took the initiative, had to be

  repeated exactly by the person making the vow. Finally, it was necessary for the

  authorities to receive this vow, and to sanction it by an official authorization: this

  was votum suscipere. Once the vow was accepted, the moment came when the

  interested party had to put his promise into execution in return for what he had

  asked for: votum solvere. Finally, as with every operation of this kind, sanctions were provided in case that the obligation was not carried out. The man who

  did not fulfill what he had promised was voti reus and prosecuted as such and

  condemned: voti damnatus. (Benveniste, pp. 237/492–93)

  More exactly, the one who pronounces the vow, more than being obligated or

  condemned to execution, becomes, at least in the extreme case of the devotio of

  the consul, a homo sacer. His life, insofar as it belongs to the infernal gods, is no

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  longer such, but rather he dwells in the threshold between life and death and can

  therefore be killed by anyone with impunity.

  One would search in vain for a similar formalism and a similar radicality in

  the monastic rules of the early centuries. The monograph that Catherine Capelle

  dedicated to the vow, in 1959, shows that precisely on the question of the mean-

  ing, nature, and very existence of the monastic vows, both in the most ancient

  sources and in modern authors, the greatest possible confusion reigns. This con-

  fusion is first of all terminological, whether through the multiplicity of vocab-

  ulary ( professio, votum, propositum, sacramentum, homologia, synthēkē), through the inconsistency of their meaning, which varies from “conduct” to “solemn

  declaration,” from “prayer” and “oath” to “desire” (Capelle, pp. 26–32). Neither

  Basil nor Pachomius nor Augustine seem to want to link the monastic condition

  to a formal act of a character that is in any way juridical. “Homologia means, in

  Basil, now the proclamation of faith, now a sort of promise, an obligation or

  the adhesion to a mode of life. There is an obligation, certainly, but indirectly

  and only because there is a consecration. We are here on the cultic level, not

  the moral or even less the juridical level” (ibid., 43–44). As to obedience, “its

  function is first of all ascetic; it is a matter of reproducing the model that Christ

  was. . . . It is neither the object of a religious obligation, nor the consequence of

  a determinate juridical situation” (p. 47). Analogously in Pachomius, even if the

  necessity of obedience to the abbot is emphasized, it remains one virtue among

  others. “It seems that what is in question here is only the ascetic aspect of obe-

  dience, and not a juridical form consequent to the bond of the vow. If the Latin

  translation seems to suggest, if not in Pachomius then at least in his successors,

  the existence of a profession . . . the context shows clearly that it is not a matter

  of a juridical obligation, but simply of the resolution to serve God through the

  perfection of the action itself” (p. 35).

  A reading of chapters 1–10 of book 4 of Cassian’s Institutes, dedicated to the

  admonition of the postulants in the monastery, shows that even here there is

  no trace of vows or juridical obligations. The one who asks to be admitted into

  the monastery is subjected to humiliations and insults for ten days to put the

  seriousness and constancy of their intention to the test: “Embracing the knees

  of all the brothers passing by, he has been purposely rebuked and disdained by

  everyone, as if he wished to enter the monastery not out of devotion but out of

  necessity” (Cassian 1, pp. 124/79). Once they have put up with these tests with

  patience and humility, particular emphasis is placed on the removal of the old

  clothes and the assumption of the monastic habit. But even this is not sufficient

  to admit him to full status among the brothers, and for an entire year he must

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  dwell near the entrance of the monastery under the guidance of an older monk.

  Admission to the status of monk depends on the tenacity of the novice and

  his capacity to observe the regula oboedientiae (“rule of obedience”; ibid., pp.

  132/83), and not on the pronunciation of a vow. “Vows do not exist in Cassian,

  because he transmits Egyptian monasticism, which is ignorant of them, to the

  West: no commitment can obligate one for his entire life, nor bind one to a

  specific monastery” (Capelle, p. 54).

  As for Augustine, none of the three texts that hand down his rule to us

  (whether or not they are his works) makes the least allusion to anything like a

  ceremony of initiation or the pronunciation of a vow.

  2.7. One may assert that the situation begins to change with the Rule of the

  Master and the Benedictine rule, which seem to presuppose a true and proper

  juridical promise on the part of the novice. Let us read, however, chapter 88 of

  the Rule of the Master, which bears the significant title Quomodo debeat frater novus in monasterio suum firmare introitum (“How a new brother must confirm

  his entry into the monastery”). After a testing period of two months, at the

  end of which the future monk generically promises resoluteness in the obser-

  vance of the rule that he has read several times ( repromissa lectae regulae firmitate; Vogüé 2, 2, pp. 370–72/258), a sort of ceremonial dialogue unfolds between the

  abbot and the novice, which the novice, humbly tugging at the hem of the

  abbot’s clothing ( humiliter adpraehenso eius vestimento), is to request urgently

  with this singular formula: “I have something to propose [ est quod suggeram],

  first to God and this holy oratory, then to you and the community” (ibid., pp.

  372/258). Asked to say what is the matter, the novice declares: “I wish to serve

  God in your monastery through the discipline of the Rule read to me [ volo Deo

  servire per disciplinam regulae mihi lectae in monasterio tuo].” “And this is your pleasure?” asks the abbot. “First it is God’s,” responds the novice, “so then also

  mine.” At this point, the abbot enunciates, with a precautionary formula, which

  has at times been interpreted as a genuine vow:

  Mark well, brother, you are not promising anything to me, but to God and to

  this oratory and to this holy altar. If in all things you obey the divine precepts and

  my admonitions, on the day of judgment you will receive the crown of your good

  deeds, and I myself shall gain some remission of my sins for having encouraged

  you to conquer the devil along with the world. But if you refuse to obey me in

  anything at all, see, I am calling the Lord to witness, and this community will also

  give testimony in my favor on the day of judgment that, as I said before, if you

  do not obey me in anything at all, I shall go free in the judgment of God and

  you will have to answer for your soul and for your contempt. (pp. 372–74/258–59)

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  Not only is it not the novice who pronounces the promise of obedience, but the

  formula that he “proposes” (“I want to serve God . . . ”) is by all indications a

  generic ascetic profession and not a legal commitment. A definitely juridical act

  happens soon after: the irrevocable donation of the novice’s goods to the mon-

  astery (or, rather, its confirmation, because the donation had already taken place

  at the moment of the request for admission). But in the monastic tradition, this

  donation is consistently interpreted as the proof of the seriousness of the future

  monk’s ascetic intention.

  The situation in the Benedictine rule seems to be different. Here not only is

  the testing period lengthened to ten months, punctuated by repeated readings

  of the rule, which is by now only a written document, but at the moment of

  the profession, the novice “shall make a promise before all in the oratory of his

  stability and of the reformation of his life and of obedience. This promise shall

  he make before God and his Saints” ( coram omnibus promittat de stabilitate sua

  et conversatione morum suorum et oboedientiam coram deo et sanctis eius; chap.

  58; Pricoco, p. 242). The promise is afterward reinforced by the drawing up of

  a document called a petitio (by hand, if he knows how to write, but in any case

  signed by him), which the novice places on the altar ( de qua promissione faciat petitionem ad nomen sanctorum . . . quam petitionem manu sua scribat . . . et manu sua eam super altare ponat; ibid., p. 244).

  According to some scholars, the Benedictine profession must be interpreted

  as a veritable contract, modeled on the paradigm of the Roman stipulatio ( Zeiger, p. 168). And since the stipulatio, as oral contract, unfolded through a question-and-answer format (of the type: Spondesne? Spondeo), the same scholars have

  privileged those documents (like a manuscript from Alba from the ninth century)

  in which the novice’s promise has precisely the form of a dialogue ( “Promittis de

  stabilitate tua et conversatione morum tuorum et oboedientia coram Deo et sanctis

  eius?” “Iuxta Dei auditium et meam intelligentiam et possibilitatem promitto,” “Do you promise your stability and the conversion of your morals and obedience before God and his saints?” “In the hearing of God I promise to the extent of my

  intelligence and possibility”; ibid., p. 169). Older documents show, however, that

  the most common form of the profession was that of a unilateral declaration, and

  not of a contract. The same petitio appears, in the surviving documents, as a sim-

  ple confirmation ( roboratio) of the promise, whose content does not, as in a stipulatio, concern specific acts, but the monk’s very form of life. The formulary of a petitio monachorum from Flavigny (seventh or eighth century) reads as follows:

  Domino venerabili in Christo patre illo abate de monasterio illo. . . . Petivimus

  ergo beatitudinem caritatis, ut nos in ordine congregacionis vestrae digni sitis

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  recipere, ut ibidem diebus vitae nostrae sub regula beati Benedicti vivere et

  conversare deberemus. . . . Habrenunciamus ergo omnes voluntates nostrae

  pravas, ut dei sola voluntas fiat in nobis, et omnis rebus quae possideums,

  sicut evangelica et regularis tradicio edocit . . . obeodientiam vobis, in quan-

  tum vires nostrae subpetunt et Dominus adderit nobis adiutorium, conservare

  promittimus. . . . Manu nostrae subscripcionis ad honorem Domni et patronis

  nostri sancti hanc peticionem volumus roborare [O venerable Lord in Christ,

  father and abbot of this monastery. . . . We therefore beg the blessing of charity,

  that you may receive us into the order of your worthy congregation, so that

  here on this day we will have to live and conduct our lives under the rule of

  blessed Benedict. . . . We therefore renounce all our depraved wills, so that

  God’s will alone may be done in us, and everything that we own, as evangelical

  and regular tradition teaches. . . . We promise to observe obedience to you, as

  far as our strength extends and God gives us help. . . . With the signature of

  our hand to the honor of God we wish to make firm this petition to our holy

  patron]. (Cappele, p. 235)

  The monk does not obligate himself here so much to individual acts, but rather

  to cause the w
ill of God to live in him. Moreover, the obedience is promised in

  proportion to his own strength and under the condition of God’s help.

  Smaragdus’s commentary on the Benedictine rule (ninth century) suggests

  considerations that are perhaps most instructive from this perspective. Not only

  does it transmit to us the text of a petitio that seems to lack every juridical characteristic, but it contains a definition of the professio that situates it in its proper context: Ista ergo regularis professio si usque ad calcem vitae in monasterio operibus impleatur, recte servitium sanctus vocatur, quia per istam sanctus effectus monachus,

  sancto Domino sociatur (“And so if this regular profession is fulfilled in deeds in the monastery up to the end of one’s life, it is rightly called a holy service, because

  having become holy through it, the monk is joined to the holy Lord”; chap. 5,

  pp. 796/250). The term servitium, exactly like officium, indicates the very life and activity of the monk and the priest, insofar as it is modeled on the life and “service” performed by Christ as high priest and “leitourgos of the sanctuary and the

  true tabernacle” (Heb. 8:2). What is clearly expressed here is the tendency to

  consider the monk’s life as an uninterrupted Office and liturgy, which we have

  already mentioned and to which we will have occasion to return.

  א How should the petitio in the Benedictine rule be understood? In Roman law one

  speaks of a petitio in the trial ( actio de iure petendi) and for candidacy for public office ( petitio facta pro candidato). In religious law, it indicated a request directed toward the gods in the form of a prayer. This last meaning, in which one can make out a precursor

  of the vow, is common in the Christian authors of the early centuries (as in Tertullian,

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  Oration 1, 6: orationis officia . . . vel venerationem Dei aut hominum petitionem, “the offices or our prayer are either the veneration of God or the petitions of human beings”).

  However, we possess documents (like the formulary of Flavigny cited above) that show

  unequivocally that the meaning of the term in Benedictine monastic practice was neither

  that of Roman law nor that of a vow, but was understood as a simple written confirmation

  of the request for admission to the monastic life.

  2.8. In the course of time and particularly starting from the Carolingian