What More Is There to Say? Revisiting Agamben's Depiction of Homo Sacer

Abstract

This article argues that Agamben's “paradigmatic method” leads to particular choices in his depiction of the figure of the homo sacer. Reviewing this project also suggests that there's more to history—the example given is the story of homo sacer—than Agamben's method would ever leave us to say. In other words, there are still resources in the tradition for something new, and thus there is much more left to say about its legacies.

Notes

1. Michael Kelly, ed. Critique and Power: Recasting the Foucault/Habermas Debate (Cambridge, MA: MIT Press, 1994), 126.

2. The volumes, in order, are Homo Sacer I: Sovereign Power and Bare Life (1995), Homo Sacer II.i: States of Exception (2003), Homo Sacer II.ii: Il regno e la gloria (2007), Homo Sacer II.iii: An Archeaology of Oaths (2008), and Homo Sacer III: Remnants of Auschwitz (1994).

3. Giorgio Agamben, “Une biopolitique mineure: entretien avec Giorgio Agamben,” Vacarme 10 (Winter 2000), available at http://www.vacarme.org/article255.html, 18.

4. Martin Heidegger, “The Nature of Language,” in On the Way to Language, trans. P. D. Hertz (New York: Harper & Row, 1971), 107–8; published in German as “Das Wesen der Sprache,” in Unterwegs zur Sprache (Frankfurt am Main: Klostermann, 1992).

5. Giorgio Agamben, Language and Death: The Place of Negativity, trans. Karen E. Pinkus and Michael Hardt (Minneapolis, MN: University of Minnesota Press, 1991), 64; originally published as Il linguaggio e la morte: un seminario sul luogo della negatività (Turin: Einaudi, 1982).

6. What is notable is that Agamben argues that “from the dawn of Greek thought,” a sacrificial logic of the human from its corporeal animality has been in place, a logic that is but a circumstance of the human being as zoōn logon echon, as a living being that has language and reason. In other words, Agamben's problem with Heidegger, Derrida, and other philosophies of finitude is that they take on the “Greek” scission between language and its other, a scission foreign to the experience of the animal; it is the closure of just this scission that is the telos of Agamben's politics. In this way, the animal may not die, but it also does not suffer the logic of sovereignty since it does not have the relations to its others that language creates and maintains. It is ever immanent to the “open” in which Being appears, whereas the human has alienated itself in a relation of closure to this opening by way of language.

7. The term, from the Greek, literally means “to throw (ballein) beyond (hyper).”

8. Giorgio Agamben, Signatura rerum: Sul metodo (Turin: Bollati Boringhieri, 2008), 34.

9. Agamben, Signatura rerum, 33.

10. Agamben, Signatura rerum, 20.

11. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford, CA: Stanford University Press, 1998), 8; originally published as Homo Sacer: il potere sovrano e la nuda vita (Turin: Einaudi, 1995); hereafter cited in the text.

12. Walter Benjamin, Illuminations, ed. Hannah Arendt, trans. Harry Zohn (New York: Schocken Books, 1968), 278.

13. Not only horrific but also much more common than the sentence of homo sacer in ancient Rome, both during the era of the Republic and later during the Roman imperium. Most often a punishment for parricide, the poena cullei lasted—whether by custom or by direct knowledge of Roman antecedents is a matter of controversy—up until the eighteenth century in Germany, and is mentioned often in Roman literature, including in the works of Seneca and Cicero. However, the history of this custom is contrapuntal, since it seems to have dropped from memory at various points, only to be revived during the time of Hadrian and later by Constantine. The Lex Pompeia, circa the first century B.C.E., describes the punishment as being drowned in a leather sack (later adjusted to a wolf's skin) together with a dog, a cock, a monkey and a snake. The four animals were there to deprive the condemned of all the natural elements, since a parricide was seen to act against nature and thus unworthy of its gifts. For a concise history of the practice as well as a summary of the give-and-take among historians over its practice, see Florike Egmond, “The Cock, the Dog, the Serpent, and the Monkey: Reception and Transmission of a Roman Punishment, or a Historiography of History,” International Journal of the Classical Tradition 2.2 (Fall 1995).

14. W. D. Aston, “Problems of Roman Criminal Law,” Journal of the Society of Comparative Legislation 13.2 (1913): 214.

15. Agamben translates paracida with the Italian omicidio, which obviates a discussion over just what counted in early ancient Rome as parricide. Various etymologies have been suggested, as well as possible copying errors from earlier sources (e.g. the word for patricide instead of parricide). The question is whether parricide counted simply for fathers, for the head of the family (patria potestas), or for a given patron. The latter is likely, given the split in early Rome between the propertied and non-propertied classes. The split in Roman society may thus have been less between two types of living than between those deaths that counted, that is, those deaths (parracidae) that called for the pentalty of sacer esto—a discussion well worth having, given the centrality of this figure in Agamben's work: see James Strachan-Davidson, Problems of Roman Criminal Law (Oxford: Clarendon Press, 1912), 3–17.

16. Max Radin, “The Lex Pompeia and the Poena Cullei,” The Journal of Roman Studies 10 (1920): 122.

17. Cicero argues in the third book of his Laws that the twelve tables prohibited making laws of personal exception (privilegia tollit) as well as laws involving the penalty of death or loss of citizenship “from being tried elsewhere than before the greatest assembly (maximo comitiatu)” (III.xix.44).

18. Donald G. Kyle, The Spectacles of Death in Ancient Rome (London: Routledge, 1998), 96.

19. W. W. Fowler, Roman Essays and Interpretation (Oxford: Clarendon Press, 1920), 18.

20. Huguett Fugier, Recherches sur l’expression du sacré dans la langue latine (Paris: Société d’Édition, Les Belles Lettres, 1963), 172.

21. Strachan-Davidson, Problems of Roman Law, 3–17.

22. Radin, “The Lex Pompeia and the Poena Cullei,” 121.

23. This power, vitae necisque potestas, was rarely, if ever used. By the late Empire the power had devolved to a mere memory and referred to the power of the father to choose to have children. See William V. Harris, “The Roman Father's Power of Life and Death,” in Studies in Roman Law: In Memory of A. Arthur Schiller, ed. Roger Bagnall and William V. Harris (New York: Columbia University Press, 1986).

24. The penalty of the homo sacer has also been noted for hemaphrodites, parricides, and tyrants (Florence Dupont, Daily Life in Ancient Rome, trans. C. Woodall [New York: Blackwell, 1989], 143). We must leave aside, for the moment, the literal patriarchy and phallocentrism that such a sacralization of the hemaphrodite, for example, entailed, though it is not a minor part of the story of homo sacer and is important for thinking the gendered zones of indistinction left out of Agamben's account.

25. Cited in Kyle, The Spectacles of Death, 59.

26. See Jean-Jacques Rousseau, Social Contract, Book II, Secs. 3–4.

27. Michael Foucault, “Nietzsche, Genealogy, History,” in The Essential Foucault, ed. P. Rabinow and N. Rose (New York: New Press, 2003), 139.

28. Foucault, “Nietzsche, Genealogy, History,” 146, 154.

29. Giorgio Agamben, “What is the Contemporary?” in What is an Apparatus? And Other Essays, trans. D. Kishik and S. Pedatella (Stanford, CA: Stanford University Press, 2009), 51; originally published as Che cos’è il contemporaneo? (Turin: Nottetempo, 2008).

30. Agamben, Homo Sacer, 89–90. The period following the publication of the XII tables was one of strife in which plebeians struck back against the patricians ruling over them. In a sense, as W. K. Lacey notes, the publication of the law actually detracted from the patricians’ power, since the plebeians could now understand just how little power they enjoyed. More pertinently, though, the paterfamilias was not simply the father of a family, or even the head of the family. Rather, the paterfamilias was traditionally a patrician who had potestas over a family unit and a group of plebeians, akin to later feudalism. It was the killing of the paterfamilias that is often believed to be a matter of the parricide leading to sacer esto, since these landowners were faced with a homicide that could not be assuaged with any other penalty, such as payment of money. For a full discussion of this issue, see W. K. Lacey, “Patria Potestas,” in The Family in Ancient Rome, ed. Beryl Rawson (New York: Cornell University Press, 1986): 121–45.

31. Dupont, Daily Life in Ancient Rome, 24.

32. Cited in Agamben, Homo Sacer, 73.

33. Fugier, Recherches, 106; Agamben, Homo Sacer, 73.

34. Kyle, The Spectacles of Death in Ancient Rome, 97.

35. It is also notable that where we make clear distinctions between legislative and executive functions, or even between a universal law and a given penalty, early Roman law evinced no such distinctions. As such, where we are led after to the gap between law and its application, the gap that marks all-too-human police violence, the Romans often had one and the other, or rather, one without the other, and this state of exception was no less frightening for all that.

36. Agamben, Homo Sacer, 20.

37. Jacques Derrida, Séminaire. La bête et le souverain: Vol. 1 (2001–2) (Paris: Éditions Galilée, 2008), 139.

38. Giorgio Agamben, The Open: Man and Animal, trans. Kevin Attell (Stanford, CA: Stanford University Press, 2004), 87.