constitute sacrilege, as in the case of the res sacrae ( Cum cetera sacra violari nefas sit, hominem sacrum ius foerit occidi, “While it is forbidden to violate the other sacred things, it is licit to kill the sacred man”).
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If this is true, then sacratio takes the form of a double exception, both from
the ius humanum and from the ius divinum, both from the sphere of the profane and from that of the religious. The topological structure drawn by this double
exception is that of a double exclusion and a double capture, which presents
more than a mere analogy with the structure of the sovereign exception. (Hence
the pertinence of the view of those scholars who, like Giuliano Crifò, interpret
sacratio in substantial continuity with the exclusion from the community [Crifò,
“Exilica causa,” pp. 460–65].) Just as the law, in the sovereign exception, applies
to the exceptional case in no longer applying and in withdrawing from it, so
homo sacer belongs to God in the form of unsacrificeability and is included in the community in the form of being able to be killed. Life that cannot be sacrificed and
yet may be killed is sacred life.
3.2. What defines the status of homo sacer is therefore not the originary ambivalence of the sacredness that is assumed to belong to him, but rather both
the particular character of the double exclusion into which he is taken and the
violence to which he finds himself exposed. This violence—the unsanctionable
killing that, in his case, anyone may commit—is classifiable neither as sacrifice
nor as homicide, neither as the execution of a condemnation to death nor as
sacrilege. Subtracting itself from the sanctioned forms of both human and di-
vine law, this violence opens a sphere of human action that is neither the sphere
of sacrum focere nor that of profane action. This sphere is precisely what we are trying to understand here.
We have already encountered a limit sphere of human action that is only ever
maintained in a relation of exception. This sphere is that of the sovereign decision,
which suspends law in the state of exception and thus implicates bare life within
it. We must therefore ask ourselves if the structure of sovereignty and the structure
of sacratio might be connected, and if they might, from this perspective, be shown to illuminate each other. We may even then advance a hypothesis: once brought
back to his proper place beyond both penal law and sacrifice, homo sacer presents the originary figure of life taken into the sovereign ban and preserves the memory
of the originary exclusion through which the political dimension was first consti-
tuted. The political sphere of sovereignty was thus constituted through a double
exclusion, as an excrescence of the profane in the religious and of the religious in
the profane, which takes the form of a zone of indistinction between sacrifice and
homicide. The sovereign sphere is the sphere in which it is permitted to kill without
committing homicide and without celebrating a sacrifice, and sacred life—that is, life that may be killed but not sacrificed—is the life that has been captured in this sphere.
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It is therefore possible to give a first answer to the question we put to ourselves
when we delineated the formal structure of the exception. What is captured in
the sovereign ban is a human victim who may be killed but not sacrificed: homo
sacer. If we give the name bare life or sacred life to the life that constitutes the first content of sovereign power, then we may also arrive at an answer to the
Benjaminian query concerning “the origin of the dogma of the sacredness of
life.” The life caught in the sovereign ban is the life that is originarily sacred—
that is, that may be killed but not sacrificed—and, in this sense, the production
of bare life is the originary activity of sovereignty. The sacredness of life, which
is invoked today as an absolutely fundamental right in opposition to sovereign
power, in fact originally expresses precisely both life’s subjection to a power over
death and life’s irreparable exposure in the relation of abandonment.
א The potestas sacrosancta that lay within the competence of the plebeian courts in Rome also attests to the link between sacratio and the constitution of a political power. The inviolability of the court is founded on the mere fact that when the plebeians first seceded, they swore to avenge the offenses committed against their representative by considering
the guilty man a homo sacer. The Latin term lex sacrata, which improperly designated (the plebeians were originally clearly distinct from the leges) what was actually only a charté jureé (Magdelain, La loi, p. 57) of the insurrectionary plebs, originally had no other meaning than that of determining a life that can be killed. Yet for this very reason, the lex sacrata founded a political power that in some way counterbalanced the sovereign power. This is
why nothing shows the end of the old republican constitution and the birth of the new
absolute power as clearly as the moment in which Augustus assumed the potestas tribunicia and thus becomes sacrosanctus. ( Sacrosanctus in perpetuum ut essem, the text of Res gestae declares, et quoad viverem tribunicia potestas mihi tribuetur, “So that I may be forever sacrosanct, and that the tribunitian power may be attributed to me for my whole life.”)
3.3. Here the structural analogy between the sovereign exception and sacratio
shows its full sense. At the two extreme limits of the order, the sovereign and homo
sacer present two symmetrical figures that have the same structure and are correlative: the sovereign is the one with respect to whom all men are potentially homines
sacri, and homo sacer is the one with respect to whom all men act as sovereigns.
The sovereign and homo sacerare joined in the figure of an action that, ex-
cepting itself from both human and divine law, from both nomos and physis,
nevertheless delimits what is, in a certain sense, the first properly political space
of the West distinct from both the religious and the profane sphere, from both
the natural order and the regular juridical order.
This symmetry between sacratio and sovereignty sheds new light on the
category of the sacred, whose ambivalence has so tenaciously oriented not only
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modern studies on the phenomenology of religion but also the most recent
inquiries into sovereignty. The proximity between the sphere of sovereignty
and the sphere of the sacred, which has often been observed and explained in a
variety of ways, is not simply the secularized residue of the originary religious
character of every political power, nor merely the attempt to grant the latter
a theological foundation. And this proximity is just as little the consequence
of the “sacred”—that is, august and accursed—character that inexplicably be-
longs to life as such. If our hypothesis is correct, sacredness is instead the orig-
inary form of the inclusion of bare life in the juridical order, and the syntagm
homo sacer names something like the originary “political” relation, which is to say, bare life insofar as it operates in an inclusive exclusion as the referent
of the sovereign decision. Life is sacred only insofar as it is taken into the
sovereign exception, and to have exchanged a juridico-political phenomenon
( homo sacer’s capacity to be killed but not sacrificed) for a genuinely religious phenomenon is the root of the equivocations
that have marked studies both
of the sacred and of sovereignty in our time. Sacer esto is not the formula of a
religious curse sanctioning the unheimlich, or the simultaneously august and vile character of a thing: it is instead the originary political formulation of the
imposition of the sovereign bond.
The crimes that, according to the original sources, merit sacratio (such as
terminum exarare, the cancellation of borders; verberatio parentis, the violence of the son against the parent; or the swindling of a client by a counsel) do not,
therefore, have the character of a transgression of a rule that is then followed
by the appropriate sanction. They constitute instead the originary exception in
which human life is included in the political order in being exposed to an un-
conditional capacity to be killed. Not the act of tracing boundaries, but their
cancellation or negation is the constitutive act of the city (and this is what the
myth of the foundation of Rome, after all, teaches with perfect clarity). Numa’s
homicide law ( parricidas esto) forms a system with homo sacer’s capacity to be killed ( parricidi non damnatur) and cannot be separated from it. The originary structure by which sovereign power is founded is this complex.
א Consider the sphere of meaning of the term sacer as it appears in our analysis.
It contains neither an antithetical meaning in Abel’s sense nor a generic ambivalence in
Durkheim’s sense. It indicates, rather, a life that may be killed by anyone—an object of a violence that exceeds the sphere both of law and of sacrifice. This double excess opens the zone of indistinction between and beyond the profane and the religious that we have attempted to define. From this perspective, many of the apparent contradictions of the term
“sacred” dissolve. Thus the Latins called pigs pure if they were held to be fit for sacrifice
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ten days after their birth. But Varro ( De re rustica, 2. 4. 16) relates that in ancient times the pigs fit for sacrifice were called sacres. Far from contradicting the unsacrificeability of homo sacer, here the term gestures toward an originary zone of indistinction in which sacer simply meant a life that could be killed. (Before the sacrifice, the piglet was not yet
“sacred” in the sense of “consecrated to the gods,” but only capable of being killed.) When the Latin poets define lovers as sacred ( sacros qui ledat amantes, “whoever harms the sacred lovers” [Propertius, 3. 6. 2]; Quisque amore teneatur, eat tutusque sacerque, “May whoever is in love be safe and sacred” [Tibullus, 1. 2. 27]), this is not because they are accursed or consecrated to the gods but because they have separated themselves from other men in a
sphere beyond both divine and human law. Originally, this sphere was the one produced
by the double exception in which sacred life was exposed.
4
‘Vitae Necisque Potestas’
4.1. “For a long time, one of the characteristic privileges of sovereign
power was the right to decide life and death.” Foucault’s statement
at the end of the first volume of the History of Sexuality ( La volonté, p. 119) sounds perfectly trivial. Yet the first time we encounter the expression “right
over life and death’’ in the history of law is in the formula vitae necisque potestas,
which designates not sovereign power but rather the unconditional authority
[ potestà] of the pater over his sons. In Roman law, vita is not a juridical concept but instead indicates either the simple fact of living or a particular way of life,
as in ordinary Latin usage (in a single term, Latin brings together the meaning
of both zoē and bios) . The only place in which the word vita acquires a specifically juridical sense and is transformed into a real terminus technicus is in the very expression vitae necisque potestas. In an exemplary study, Yan Thomas has
shown that que in this formula does not have a disjunctive function and that
vita is nothing but a corollary of nex, the power to kill (“Vita,” pp. 508–9). Life thus originally appears in Roman law merely as the counterpart of a power
threatening death (more precisely, death without the shedding of blood, since
this is the proper meaning of necare as opposed to mactare) . This power is absolute and is understood to be neither the sanction of a crime nor the expression
of the more general power that lies within the competence of the pater insofar
as he is the head of the domus: this power follows immediately and solely from the father-son relation (in the instant in which the father recognizes the son
in raising him from the ground, he acquires the power of life and death over
him). And this is why the father’s power should not be confused with the
power to kill, which lies within the competence of the father or the husband
who catches his wife or daughter in the act of adultery, or even less with the
power of the dominus over his servants. While both of these powers concern the
domestic jurisdiction of the head of the family and therefore remain, in some
way, within the sphere of the domus, the vitae necisque potestas attaches itself to every free male citizen from birth and thus seems to define the very model of
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political power in general. Not simple natural life, but life exposed to death (bare
life or sacred life) is the originary political element.
The Romans actually felt there to be such an essential affinity between the
father’s vitae necisque potestas and the magistrate’s imperium that the registries of the ius patrium and of the sovereign power end by being tightly intertwined.
The theme of the pater imporiosus who himself bears both the character of
the father and the capacity of the magistrate and who, like Brutus or Manlius
Torquatus, does not hesitate to put the treacherous son to death, thus plays an
important role in the anecdotes and mythology of power. But the inverse figure
of the father who exerts his vitae necisque potestas over his magistrate son, as in the case of the consul Spurius Cassius and the tribune Caius Flaminius, is just
as decisive. Referring to the story of the latter, who was dragged down from the
rostra by his father while he was trying to supersede the authority of the sen-
ate, Valerius Maximus defines the father’s potestas, significantly, as an imperium privatum. Thomas, who has analyzed these episodes, could write that in Rome
the patria potestas was felt to be a kind of public duty and to be, in some way, a “residual and irreducible sovereignty’’ (“Vita,” p. 528). And when we read
in a late source that in having his sons put to death, Brutus “had adopted the
Roman people in their place,” it is the same power of death that is now trans-
ferred, through the image of adoption, to the entire people. The hagiographic
epithet “father of the people,” which is reserved in every age to the leaders in-
vested with sovereign authority, thus once again acquires its originary, sinister
meaning. What the source presents us with is therefore a kind of genealogical
myth of sovereign power: the magistrate’s imperium is nothing but the father’s
vitae necisque potestas extended to all citizens. There is no clearer way to say that the first foundation of political life is a life that may be killed, which is politicized through its very capacity to be killed.
4.2. From this perspective, it is possible to see the sense of the ancient
Roman custom according to which only the prepubescent son could place him-
self between the magistrate equipped with the imperium and the lictor who went
> before him. The physical proximity of the magistrate to the lictors who always
accompanied him bearing the terrible insignias of power (the fasces formidulosi
and the saeve secures) firmly expresses the inseparability of the imperium from a power of death. If the son can place himself between the magistrate and the
lictor, it is because he is already originarily and immediately subject to a power
of life and death with respect to the father. The puer son symbolically affirms precisely the consubstantiality of the vitae necisque potestas with sovereign power.
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At the point in which the two seem to coincide, what emerges is the singu-
lar fact (which by now should not appear so singular) that every male citizen
(who can as such participate in public life) immediately finds himself in a state
of virtually being able to be killed, and is in some way sacer with respect to
his father. The Romans were perfectly aware of the aporetic character of this
power, which, flagrantly contradicting the principle of the Twelve Tables ac-
cording to which a citizen could not be put to death without trial ( indemnatus),
took the form of a kind of unlimited authorization to kill ( lex indemnatorum
interficiendum) . Moreover, the other characteristic that defines the exceptionality of sacred life—the impossibility of being put to death according to sanc-
tioned ritual practices—is also to be found in the vitae necisque potestas. Thomas refers (“Vita,” p. 540) to the case recalled as a rhetorical exercise by Calpurnius
Flaccus, in which a father, by virtue of his potestas, gives his son over to an executioner to be killed. The son resists and rightly demands that his father be the
one to put him to death ( vult manu patris interfici) . The vitae necisque potestas immediately attaches itself to the bare life of the son, and the impune occidi
that derives from it can in no way be assimilated to the ritual killing following
a death sentence.
4.3. At a certain point, Thomas poses a question concerning the vitae
necisque potestas: “What is this incomparable bond for which Roman law is unable to find any expression other than death?” (“Vita,” p. 510). The only possible answer is that what is at issue in this “incomparable bond” is the inclusion
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