of the missing corpse in a kind of funeral per imaginem or, more precisely, in the vicarious execution of an unfulfilled consecration. Jean-Pierre Vernant and Émile
Benveniste have shown the general function of the colossus: this figure, attracting
and establishing within itself a double in unusual conditions, “makes it possible to
reestablish correct relations between the world of the living and the world of the
dead” (Vernant, Mythe, p. 77). The first consequence of death is the liberation of a vague and threatening being (the larva of the Latins, the psychē, eidōlon or phasma of the Greeks) who returns, with the outward appearance of the dead person, to
the places where the person lived, belonging properly neither to the world of the
living nor to that of the dead. The goal of the funeral rites is to assure that this
uncomfortable and uncertain being is transformed into a friendly and powerful
ances tor, who clearly belongs to the world of the dead and with whom it is possible
to maintain properly ritual relations. The absence of the corpse (or, in certain cases,
its mutilation) can, however, impede the orderly fulfillment of the funeral rite.
And in these cases a colossus can, under determinate conditions, be substituted for
the corpse, thereby rendering possible a vicarious execution of the funeral.
What happens to the surviving devotee? Here it is not possible to speak
of a missing corpse in the strict sense, for there has not even been a death. An
inscription found in Cyrene nevertheless tells us that a colossus could even be
made during the lifetime of the person for whom it was meant to substitute. The
inscription bears the text of an oath that settlers leaving for Africa and the citi-
zens of the homeland had to swear at Thera in order to secure their obligations
to each other. At the moment they swore the oath, they threw wax kolossoi into
a fire, saying, “May he who is unfaithful to this oath, as well as all his descen-
dants and all his goods, be liquefied and disappear” (Vernant, Mythe, p. 69).
The colossus is not, therefore, a simple substitute for the corpse. In the complex
system regulating the relation between the living and the dead in the classical
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world, the colossus represents instead—analogously to the corpse, but in a more
immediate and general way—that part of the person that is consecrated to death
and that, insofar as it occupies the threshold between the two worlds, must be
separated from the normal context of the living. This separation usually happens
at the time of death, through the funeral rites that reestablish the proper relation
between the living and the dead that had been disturbed by the deceased. In cer-
tain cases, however, it is not death that disturbs this order but rather its absence,
and the fabrication of the colossus is then necessary to reestablish order.
Until this rite (which, as H. S. Versnel has shown, is not a vicarious funeral
but rather a substitutive performance of a consecration [“Self-Sacrifice,” p. 157])
is performed, the surviving devotee is a paradoxical being, who, while seeming
to lead a normal life, in fact exists on a threshold that belongs neither to the
world of the living nor to the world of the dead: he is a living dead man, or a liv-
ing man who is actually a larva, and the colossus represents the very consecrated life that was, at the moment of the ritual by which he became a devotus, virtually separated from him.
5.5. If we now examine the life of homo sacer from this perspective, it is
possible to assimilate his status to that of a surviving devotee for whom neither
vicarious expiation nor substitution by a colossus is possible. The very body of
homo sacer is, in its capacity to be killed but not sacrificed, a living pledge to his subjection to a power of death. And yet this pledge is, nevertheless, absolute
and unconditional, and not the fulfillment of a consecration. It is therefore not
by chance that in a text that has long appeared to interpreters to be confused
and corrupt ( Saturnalia, 3. 7. 6), Macrobius assimilates homo sacer to the statues ( Zanes) in Greece that were consecrated to Jove with the proceeds from the fees imposed on oath-breaking athletes, statues that were in fact nothing other than
the collossi of those who had broken their word and had therefore been vicari-
ously consigned to divine justice ( animas . . . sacratorum hominum, quos zanas Graeci vocant, “souls of the sacred men whom the Greeks call Zanes”). Insofar as he incarnates in his own person the elements that are usually distinguished
from death, homo sacer is, so to speak, a living statue, the double or the colossus of himself. In the body of the surviving devotee and, even more unconditionally, in the body of homo sacer, the ancient world finds itself confronted for the first time with a life that, excepting itself in a double exclusion from the real
context of both the profane and the religious forms of life, is defined solely by
virtue of having entered into an intimate symbiosis with death without, never-
theless, belonging to the world of the deceased. In the figure of this “sacred life,”
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85
something like a bare life makes its appearance in the Western world. What is
decisive, however, is that from the beginning this sacred life has an eminently
political character and exhibits an essential link with the terrain on which sov-
ereign power is founded.
5.6. We must examine in this light the rite of the image in the Roman im-
perial apotheosis. If the colossus always represents a life consecrated to death in
the sense we have seen, this means that the death of the emperor (despite the
presence of the corpse, whose remains are ritually buried) frees a supplement of
sacred life that, as in the case of the man who has survived consecration, must
be neutralized by means of a colossus. Thus it is as if the emperor had in himself
not two bodies but rather two lives inside one single body: a natural life and a
sacred life. The latter, regardless of the regular funeral rite, survives the former
and can only ascend to the heavens and be deified after the funus imaginarium.
What unites the surviving devotee, homo sacer, and the sovereign in one single paradigm is that in each case we find ourselves confronted with a bare life that
has been separated from its context and that, so to speak surviving its death, is
for this very reason incompatible with the human world. In every case, sacred
life cannot dwell in the city of men: for the surviving devotee, the imaginary
funeral functions as a vicarious fulfillment of the consecration that gives the
individual back to normal life; for the emperor, the double funeral makes it
possible to fasten onto the sacred life, which must be gathered and divinized
in the apotheosis; for homo sacer, finally, we are confronted with a residual and irreducible bare life, which must be excluded and exposed to a death that no rite
and no sacrifice can redeem.
In all three cases, sacred life is in some way tied to a political function. It is
as if, by means of a striking symmetry, supreme power—which, as we have seen,
is always vitae necisque potestas and always founded on a life that may be killed but not sacrificed—required that the very person of sovereign authority assume
within itself the life held in its power. And if, for the surviving devotee, a miss-
ing death li
berates this sacred life, for the sovereign, death reveals the excess that
seems to be as such inherent in supreme power, as if supreme power were, in the
last analysis, nothing other than the capacity to constitute oneself and others as life that may be killed but not sacrificed.
With respect to the interpretation of Kantorowicz and Giesey, the doctrine
of the king’s two bodies therefore appears in a different and less innocuous light.
If this doctrine’s relation to pagan imperial consecration cannot be bracketed, the
very meaning of the theory changes radically. The king’s political body (which, as
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Plowden says, “cannot be seen or touched” and which, “lacking childhood and
old age and all the other defects to which the natural body is subject,” exalts the
mortal body to which it is joined) is, in the last analysis, derived from the em-
peror’s colossus. Yet for this very reason, the king’s political body cannot simply
represent (as Kantorowicz and Giesey held) the continuity of sovereign power.
The king’s body must also and above all represent the very excess of the emperor’s
sacred life, which is isolated in the image and then, in the Roman ritual, carried
to the heavens, or, in the French and English rite, passed on to the designated
successor. However, once this is acknowledged, the metaphor of the political
body appears no longer as the symbol of the perpetuity of dignitas, but rather as the cipher of the absolute and inhuman character of sovereignty. The formulas
le mort saisit le vif and le roi ne meurt jamais must be understood in a much more literal way than is usually thought: at the moment of the sovereign’s death, it is
the sacred life grounding sovereign authority that invests the person of the sov-
ereign’s successor. The two formulas only signify sovereign power’s continuity to
the extent that they express, by means of the hidden tie to life that can be killed
but not sacrificed, sovereign power’s absoluteness.
For this reason, when Bodin, the most perceptive modern theo rist of sover-
eignty, considers the maxim cited by Kantorowicz as an expression of the per-
petuity of political power, he interprets it with reference to the absoluteness of
political power: “This is why,” he writes in the sixth book of The Commonweale,
“it is said in this kingdom that the king never dies. And this saying, which is an
ancient proverb, well shows that the kingdom was never elective, and that it has
its scepter not from the Pope, nor from the Archbishop of Rheims, nor from the
people, but rather from God alone” ( La République, p. 985).
5.7. If the symmetry we have tried to illustrate between the body of the sov-
ereign and that of homo sacer is correct, then we ought to be able to find analo-
gies and correspondences in the juridico-political status of these two apparently
distant bodies. Material for a first and immediate comparison is offered by the
sanction that the killing of the sovereign incurs. We know that the killing of
homo sacer does not constitute homicide ( parricidi non damnatur) . Accordingly, there is no juridico-political order (even among those societies in which homicide is always punished with capital punishment) in which the killing of the
sovereign is classified simply as an act of homicide. Instead it constitutes a special
crime, which is defined (once the notion of maiestas, starting with Augustus, is associated more and more closely with the person of the emperor) as crimen lesae
maiestatis. It does not matter, from our perspective, that the killing of homo sacer
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can be considered as less than homicide, and the killing of the sovereign as more
than homicide; what is essential is that in neither case does the killing of a man
constitute an offense of homicide. When we still read in King Charles Albert
of Savoy’s statute that “the person of the sovereign is sacred and inviolable,” we
must hear, in the adjectives invoked, an echo of the sacredness of homo sacer’s
life, which can be killed by anyone without committing homicide.
Yet the other defining characteristic of homo sacer’s life, that is, his unsacrificeability according to the forms prescribed by the rite of the law, is also to
be found in the person of the sovereign. Michael Walzer has observed that
in the eyes of the people of the time, the enormity of the rupture marked by
Louis XVI’s decapitation on January 21, 1793, consisted not in the fact that a
monarch was killed but in the fact that he was submitted to a trial and executed
after having been condemned to capital punishment (“King’s Trial,” pp. 184–85).
In modern constitutions, a trace of the unsacrificeability of the sovereign’s life
still survives in the principle according to which the head of state cannot be
submitted to an ordinary legal trial. In the American Constitution, for example,
impeachment requires a special session of the Senate presided over by the chief
justice, which can be convened only for “high crimes and misdemeanors,” and
whose consequence can never be a legal sentence but only dismissal from office.
When the Jacobins suggested, during the discussions of the 1792 convention,
that the king be executed without trial, they merely brought the principle of the
unsacrificeability of sacred life to the most extreme point of its development,
remaining absolutely faithful (though most likely they did not realize it) to the
arcanum according to which sacred life may be killed by anyone without com-
mitting homicide, but never submitted to sanctioned forms of execution.
6
The Ban and the Wolf
6.1. “The entire character of homo sacer shows that it was not born on
the soil of a constituted juridical order, but goes all the way back
to the period of pre-social life. It is a fragment of the primitive life of Indo-
European peoples. . . . In the bandit and the outlaw ( wargus, vargr, the wolf and, in the religious sense, the sacred wolf, vargr y veum), Germanic and Scandina-vian antiquity give us a brother of homo sacer beyond the shadow of any doubt.
. . . That which is considered to be an impossibility for Roman antiquity the
killing of the proscribed outside a judge and law—was an incontestable reality
in Germanic antiquity” (Jhering, L’esprit du droit romain, p. 282).
Rodolphe Jhering was, with these words, the first to approximate the figure
of homo sacer to that of the wargus, the wolf-man, and of the Friedlos, the “man without peace” of ancient Germanic law. He thus placed sacratio in the context of the doctrine of Friedlosigkeit that Wilhelm Eduard Wilda had elaborated
toward the middle of the nineteenth century, according to which ancient Ger-
manic law was founded on the concept of peace ( Fried ) and the corresponding exclusion from the community of the wrongdoer, who therefore became friedlos,
without peace, and whom anyone was permitted to kill without committing
homicide. The medieval ban also presents analogous traits: the bandit could be
killed ( bannire idem est quod dicere quilibet possit eum offendere, “‘To ban’ someone is to say that anyone may harm him” [Cavalca, Il bando, p. 42]) or was even considered to be already dead ( exbannitus ad mortem de sua civitate debet haberi
pro mortuo, “Whoever is banned from his city on pain of death must be considered as dead” [ibid., p. 50]). Germanic and Anglo-Saxon
sources underline the
bandit’s liminal status by defining him as a wolf-man ( wargus, werwolf, the Latin garulphus, from which the French loup garou, “werewolf,” is derived): thus Salic law and Ripuarian law use the formula wargus sit, hoc est expulsus in a sense that recalls the sacer esto that sanctioned the sacred man’s capacity to be killed, and the laws of Edward the Confessor (1030–35) define the bandit as a wulfesheud
(a wolf’s head) and assimilate him to the werewolf ( lupinum enim gerit caput a
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89
die utlagationis suae, quod ab anglis wulfesheud vacatur, “He bears a wolf’s head from the day of his expulsion, and the English call this wulfesheud ”). What had
to remain in the collective unconscious as a monstrous hybrid of human and an-
imal, divided between the forest and the city—the werewolf—is, therefore, in its
origin the figure of the man who has been banned from the city. That such a man
is defined as a wolf-man and not simply as a wolf (the expression caput lupinum
has the form of a juridical statute) is decisive here. The life of the bandit, like that
of the sacred man, is not a piece of animal nature without any relation to law and
the city. It is, rather, a threshold of indistinction and of passage between animal
and man, physis and nomos, exclusion and inclusion: the life of the bandit is the life of the loup garou, the werewolf, who is precisely neither man nor beast, and who dwells paradoxically within both while belonging to neither.
6.2. Only in this light does the Hobbesian mythologeme of the state of
nature acquire its true sense. We have seen that the state of nature is not a real
epoch chronologically prior to the foundation of the City but a principle inter-
nal to the City, which appears at the moment the City is considered tanquam
dissoluta, “as if it were dissolved” (in this sense, therefore, the state of nature is something like a state of exception). Accordingly, when Hobbes founds sovereignty by means of a reference to the state in which “man is a wolf to men,”
homo hominis lupus, in the word “wolf ” ( lupus) we ought to hear an echo of the wargus and the caput lupinem of the laws of Edward the Confessor: at issue is not simply fera bestia and natural life but rather a zone of indistinction between the human and the animal, a werewolf, a man who is transformed into a wolf and
The Omnibus Homo Sacer Page 13
