law, is the counterpart to the onto-theo-logical strategy aimed at capturing pure
being in the meshes of the logos.
That is to say, everything happens as if both law and logos needed an anomic
(or alogical) zone of suspension in order to ground their reference to the world
of life. Law seems able to subsist only by capturing anomie, just as language can
subsist only by grasping the nonlinguistic. In both cases, the conflict seems to
218
HOMO SACER II, 1
concern an empty space: on the one hand, anomie, juridical vacuum, and, on the other, pure being, devoid of any determination or real predicate. For law,
this empty space is the state of exception as its constitutive dimension. The
relation between norm and reality involves the suspension of the norm, just as
in ontology the relation between language and world involves the suspension of
denotation in the form of a langue. But just as essential for the juridical order is that this zone—wherein lies a human action without relation to the norm—
coincides with an extreme and spectral figure of the law, in which law splits into
a pure being-in-force [ vigenza] without application (the form of law) and a pure
application without being in force: the force-of-law.
If this is true, then the structure of the state of exception is even more com-
plex than what we have glimpsed of it up to now, and the positions of the two
sides that struggle in and for it are even more tightly woven into each other. And
just as the victory of one player in a sporting match is not something like an
originary state of the game that must be restored, but only the stake of the game
(which does not preexist it, but rather results from it), so pure violence (which
is the name Benjamin gives to human action that neither makes nor preserves
law) is not an originary figure of human action that at a certain point is captured
and inscribed within the juridical order (just as there is not, for speaking man, a
prelinguistic reality that at a certain point falls into language). It is, rather, only
the stake in the conflict over the state of exception, what results from it and, in
this way only, is supposed prior to the law.
4.7. It is therefore all the more important to understand correctly the mean-
ing of the expression reine Gewalt, “pure violence,” as the essential technical term of Benjamin’s essay. What does “pure” mean here? In January 1919 (that is,
about a year before drafting the essay) Benjamin, in a letter to Ernst Schoen that
takes up and develops motifs already elaborated in an article on Stifter, carefully
defines what he means by “purity” ( Reinheit):
It is a mistake to postulate anywhere a purity that exists in itself and needs only
to be preserved. . . . The purity of a being is never unconditional or absolute;
it is always subject to a condition. This condition varies according to the being
whose purity is at issue; but this condition never inheres in the being itself. In other words: the purity of every (finite) being is not dependent on itself. . . . For
nature, human language is the condition of its purity that stands outside of it.
(Benjamin 1966, 206/138)
This relational rather than substantial conception of purity is so essential for
Benjamin that again in the 1931 essay on Kraus he can write that “at the origin
STATE OF EXCEPTION
219
of the creature stands not purity [ Reinheit] but purification [ Reinigung]” (Benjamin 1931, 365/455). This means that the purity at issue in the 1921 essay is not
a substantial characteristic belonging to the violent action in itself; that is to say,
the difference between pure violence and mythico-juridical violence does not lie
in the violence itself, but in its relation to something external. Benjamin firmly
states what this external condition is at the beginning of the essay: “The task of a
critique of violence can be summarized as that of expounding its relation to law
and justice.” Even the criterion of the “purity” of violence will therefore lie in its
relation to law (and the topic of justice in the essay is, in fact, discussed only in
relation to the ends of law).
Benjamin’s thesis is that while mythico-juridical violence is always a means
to an end, pure violence is never simply a means—whether legitimate or
illegitimate—to an end (whether just or unjust). The critique of violence does
not evaluate violence in relation to the ends that it pursues as a means, but seeks
its criterion “in a distinction within the sphere of means themselves, without
regard for the ends they serve” (Benjamin 1921, 179/236).
Here appears the topic—which flashes up in the text only for an instant,
but is nevertheless sufficient to illuminate the entire piece—of violence as “pure
medium,” that is, as the figure of a paradoxical “mediality without ends”—a
means that, though remaining such, is considered independently of the ends
that it pursues. The problem, then, is not that of identifying just ends but that of
“individuating a different kind of violence that certainly could not be either the
legitimate or illegitimate means to those ends but is not related to them as means
at all but in some different way [ nicht als Mittel zu ihnen, vielmehr irgendwie
anders, sich verhalten würde]” (Benjamin 1921, 196/247).
What can this other type of relation to an end be? It will be useful to apply
the considerations that we have just developed concerning the meaning of Ben-
jamin’s term “pure” to the concept of “pure” medium as well. The medium does
not owe its purity to any specific intrinsic property that differentiates it from
juridical means, but to its relation to them. In the essay on language, pure lan-
guage is that which is not an instrument for the purpose of communication, but
communicates itself immediately, that is, a pure and simple communicability;
likewise, pure violence is that which does not stand in a relation of means to-
ward an end, but holds itself in relation to its own mediality. And just as pure
language is not another language, just as it does not have a place other than
that of the natural communicative languages, but reveals itself in these by ex-
posing them as such, so pure violence is attested to only as the exposure and
deposition of the relation between violence and law. Benjamin suggests as much
220
HOMO SACER II, 1
immediately thereafter, evoking the image of violence that, in anger, is never a
means but only a manifestation ( Manifestation). While violence that is a means
for making law never deposes its own relation with law and thus instates law as
power ( Macht), which remains “necessarily and intimately bound to it” (Benja-
min 1921, 198/248), pure violence exposes and severs the nexus between law and
violence and can thus appear in the end not as violence that governs or executes
( die schaltende) but as violence that purely acts and manifests ( die waltende). And if the connection between pure violence and juridical violence, between state of
exception and revolutionary violence, is thus made so tight that the two players
facing each other across the chessboard of history seem always to be moving a
single pawn—force-of-law or pure means—what is nevertheless d
ecisive is that
in each case the criterion of their distinction lies in the dissolution of the relation
between violence and law.
4.8. It is from this perspective that we must read Benjamin’s statement in the
letter to Scholem on August 11, 1934, that “the Scripture without its key is not
Scripture, but life” (Benjamin 1966, 618/453), as well the one found in the essay
on Kafka, according to which “[t]he law which is studied but no longer prac-
ticed is the gate to justice” (Benjamin 1934, 437/815). The Scripture (the Torah)
without its key is the cipher of the law in the state of exception, which is in force
but is not applied or is applied without being in force (and which Scholem,
not at all suspecting that he shares this thesis with Schmitt, believes is still law).
According to Benjamin, this law—or, rather, this force-of-law—is no longer
law but life, “life as it is lived,” in Kafka’s novel, “in the village at the foot of the
hill on which the castle is built” (Benjamin 1966, 618/453). Kafka’s most proper
gesture consists not (as Scholem believes) in having maintained a law that no
longer has any meaning, but in having shown that it ceases to be law and blurs
at all points with life.
In the Kafka essay, the enigmatic image of a law that is studied but no longer
practiced corresponds, as a sort of remnant, to the unmasking of mythico-jurid-
ical violence effected by pure violence. There is, therefore, still a possible figure
of law after its nexus with violence and power has been deposed, but it is a law
that no longer has force or application, like the one in which the “new attorney,”
leafing through “our old books,” buries himself in study, or like the one that
Foucault may have had in mind when he spoke of a “new law” that has been
freed from all discipline and all relation to sovereignty.
What can be the meaning of a law that survives its deposition in such a way?
The difficulty Benjamin faces here corresponds to a problem that can be formu-
STATE OF EXCEPTION
221
lated (and it was effectively formulated for the first time in primitive Christianity
and then later in the Marxian tradition) in these terms: What becomes of the
law after its messianic fulfillment? (This is the controversy that opposes Paul to
the Jews of his time.) And what becomes of the law in a society without classes?
(This is precisely the debate between Vyshinsky and Pashukanis.) These are the
questions that Benjamin seeks to answer with his reading of the “new attorney.”
Obviously, it is not a question here of a transitional phase that never achieves its
end, nor of a process of infinite deconstruction that, in maintaining the law in
a spectral life, can no longer get to the bottom of it. The decisive point here is
that the law—no longer practiced, but studied— is not justice, but only the gate
that leads to it. What opens a passage toward justice is not the erasure of law,
but its deactivation and inactivity [ inoperosità]—that is, another use of the law.
This is precisely what the force-of-law (which keeps the law working [ in opera]
beyond its formal suspension) seeks to prevent. Kafka’s characters—and this is
why they interest us—have to do with this spectral figure of the law in the state
of exception; they seek, each one following his or her own strategy, to “study”
and deactivate it, to “play” with it.
One day humanity will play with law just as children play with disused ob-
jects, not in order to restore them to their canonical use but to free them from it
for good. What is found after the law is not a more proper and original use value
that precedes the law, but a new use that is born only after it. And use, which has
been contaminated by law, must also be freed from its own value. This liberation
is the task of study, or of play. And this studious play is the passage that allows us
to arrive at that justice that one of Benjamin’s posthumous fragments defines as
a state of the world in which the world appears as a good that absolutely cannot
be appropriated or made juridical (Benjamin 1992, 41).
5
Feast, Mourning, Anomie
5.1. Roman scholars and legal historians have not yet been able to find
a satisfactory explanation for the peculiar semantic evolution that
led the term iustitium—the technical designation for the state of exception—to
acquire the meaning of public mourning for the death of the sovereign or his
close relative. Indeed, with the end of the Republic, iustitium ceased to mean
the suspension of law in order to cope with a tumult and the new meaning re-
placed the old one so perfectly that even the memory of this austere institution
seems to have entirely vanished. At the end of the fourth century ce, the gram-
marian Charisius could therefore identify the iustitium purely and simply with
luctus publicus. And it is significant that after the debate raised by Nissen’s and Middell’s monographs, modern scholars have disregarded the question of the
iustitium as the state of exception and have concentrated solely on the iustitium as public mourning. (Ironically evoking the term’s old meaning in his study of
Germanicus’s funeral, William Seston wrote, “the debate was rather lively, but
soon nobody thought about it any more” [Seston 1962, 155].) But how did this
term that was used in public law to designate the suspension of law in situations
of the most extreme political necessity come to assume the more anodyne mean-
ing of a funeral ceremony for a death in the family?
In an extensive study published in 1980, H. S. Versnel attempted to answer
this question by proposing an analogy between the phenomenology of mourn-
ing—as attested to in the most diverse places by anthropological research—and
periods of political crisis, in which social institutions and rules seems suddenly
to dissolve. Just as, during periods of anomie and crisis, normal social structures
can collapse and social functions and roles break down to the point where cul-
turally conditioned behaviors and customs are completely overturned, so are
periods of mourning usually characterized by a suspension and alteration of all
social relations. “Whoever characterizes the critical periods as . . . a temporary
substitution of order by disorder, of culture by nature, of kosmos by chaos, of nomos by physis, of eunomia by anomia, has implicitly characterized the period 222
STATE OF EXCEPTION
223
of mourning and its manifestations” (Versnel 1980, 584–85). According to Ver-
snel, who here cites the analyses of the American sociologists Berger and Luck-
man, “All societies are constructions in the face of chaos. The constant possibility
of anomic terror is actualized whenever the legitimations that obscure the pre-
cariousness are threatened or collapse” (585).
Here, not only is the iustitium’s evolution from the state of exception to
public mourning explained by the resemblance between the manifestations of
mourning and those of anomie (which simply begs the question), but the ulti-
mate reason for this resemblance is then sought in the idea of an “anomic terror”
said to characterize human societies as a whole. Such a concept (which
is as inad-
equate to account for the specificity of the phenomenon as Marburg theology’s
tremendum and numinosum were to orient a correct understanding of the divine) refers, in the last analysis, to the darkest spheres of psychology:
The total effects of mourning (especially for a chief or king) and the complete
phenomenology of cyclical transitional-feasts . . . conform completely to the defi-
nition of anomy. . . . [E]verywhere there is a (temporary) reversal of the human
to the non-human, the cultural to the natural (viewed as its negative contrast),
of kosmos to chaos and of eunomy to anomy. . . . The feelings of grief and disorientation and their individual and collective expressions are not restricted to one
culture or to one type of cultural pattern. Apparently they are intrinsic features
of humanity and the human condition, which manifest themselves above all in
marginal or liminal situations. I would, therefore, gladly agree with V. W. Turner,
who, speaking of “unnatural—or rather, anti-cultural or anti-structural—events”
in liminal situations, suggests that “perhaps Freud and Jung, in their different
ways, have much to contribute to the understanding of these nonlogical, non-
rational (but not irrational) aspects of liminal situations.” (Versnel 1980, 604–5)
א In this neutralization of the juridical specificity of the iustitium by means of an uncritical psychologistic reduction, Versnel had been preceded by Durkheim, who in
his monograph entitled Suicide (1897) had introduced the concept of anomie into the human sciences. In setting out the category of “anomic suicide” alongside the other forms
of suicide, Durkheim had established a correlation between the diminution of society’s
regulative influence on individuals and a rise in the suicide rate. This was tantamount to postulating (as he does without providing any explanation) a need of human beings to be
regulated in their activities and passions: “What is characteristic of man is to be subject to a restraint that is not physical but moral; that is, social. . . . But when a society is disturbed by some painful crisis or by beneficent but abrupt transitions, it is momentarily incapable of exercising this influence; thence come the sudden rises in the curve of suicides which
we have pointed out. . . . Anomie, therefore, is a regular and specific factor in suicide in our modern societies” (Durkheim 1897, 279–88/252–58).
The Omnibus Homo Sacer Page 34
