authority had “vanished from the modern world” to such an extent that in the
absence of any “authentic and indisputable” experience of it, “the very term has
become clouded by controversy and confusion” (Arendt 1961, 91). There is per-
haps no better confirmation of this confusion—and of the ambiguities that it
entails—than the fact that Arendt undertook her reevaluation of authority only
a few years after Adorno and Else Frenkel-Brunswick had conducted their fron-
tal attack on “the authoritarian personality.” On the other hand, in forcefully
denouncing “the liberal identification of totalitarianism with authoritarianism”
(97), Arendt probably did not realize that she shared this denunciation with an
author whom she certainly disliked.
Indeed, in 1931, in a book bearing the significant title Der Hüter der Verfassung
(The guardian of the constitution), Carl Schmitt had tried to define the president
of the Reich’s neutral power in the state of exception by dialectically opposing
auctoritas and potestas. After recalling that both Bodin and Hobbes were still able 230
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to appreciate the meaning of the distinction, Schmitt lamented (in words that
anticipate Arendt’s argument) “the lack of tradition of the modern theory of the
state, which opposes authority and freedom, authority and democracy . . . to the
point of confusing authority with dictatorship” (Schmitt 1931, 137). Already in
his 1928 treatise on constitutional law, though without defining the opposition,
Schmitt evoked its “great importance in the general theory of the state,” and
referred back to Roman law to describe it (“the Senate had auctoritas; on the contrary, potestas and imperium derive from the people” [Schmitt 1928, 109]).
In 1968, in a study of the idea of authority published in a Festgabe for
Schmitt’s eightieth year, a Spanish scholar, Jesus Fueyo, noted that the modern
confusion of auctoritas and potestas (“two concepts that express the originary sense through which the Roman people conceived their communal life” [Fueyo
1968, 213]) and their convergence in the concept of sovereignty “was the cause of
the philosophical inconsistency in the modern theory of the state”; and he im-
mediately added that this confusion “is not only academic, but is closely bound
up with the real process that has led to the formation of the political order of
modernity” (213). What we must now try to understand is the meaning of this
“confusion” that is bound up with the reflection and political praxis of the West.
א It is a commonly held opinion that the concept of auctoritas is specifically Roman, just as it is cliché to refer to Dio Cassius in order to demonstrate its untranslatability into Greek. But despite what is repeatedly claimed, Dio Cassius, who had an excellent
knowledge of Roman law, does not say that the term is impossible to translate; he says,
rather, that it cannot be translated kathapax, “once and for all” ( hellēnisai auto kathapax adunaton esti [ Roman History 55.3.5]). The implication here is that it must be rendered in Greek with a different term each time, depending on the context, which is obvious, given
the wide reach of the concept. What Dio has in mind, therefore, is not something like
a Roman specificity of the term but the difficulty of leading it back to a single meaning.
6.2. The definition of the problem is complicated by the fact that the con-
cept of auctoritas refers to a relatively broad juridical phenomenology, which
concerns both private and public law. It will be best to begin our analysis with
the former, and then to see if it is possible to lead the two aspects back to unity.
In the sphere of private law, auctoritas is the property of the auctor, that is, the person sui iuris (the pater familias) who intervenes—pronouncing the technical formula auctor fio [I am made auctor]—in order to confer legal validity on the act of a subject who cannot independently bring a legally valid act into being. Thus,
the auctoritas of the tutor makes valid the act of one who lacks this capacity, and the auctoritas of the father “authorizes”—that is, makes valid—the marriage of
the son in potestate. Analogously, the seller (in a mancipatio) is bound to assist
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the buyer in confirming his title of ownership in the course of a claim proceeding
involving a third opposing party.
The term derives from the verb augeo: the auctor is is qui auget, the person who augments, increases, or perfects the act—or the legal situation—of someone else. In the section of his Indo-European Language and Society dedicated to
law, Benveniste sought to show that originally the verb augeo (which, in the
Indo-European area, is significantly related to terms that express force) “denotes
not the increase in something which already exists but the act of producing
from one’s own breast; a creative act” (Benveniste 1969, 2: 148/422). In truth,
the two meanings are not contradictory at all in classical law. Indeed, the Greco-
Roman world does not know creation ex nihilo; rather, every act of creation al-
ways involves something else—formless matter or incomplete being—that must
be perfected or made to grow. Every creation is always a cocreation, just as every
author is always a coauthor. As Magdelain has effectively written, “[A]uctoritas is not sufficient in itself; whether it authorizes or ratifies, it implies an extraneous
activity that it validates” (Magdelain 1990, 685). It is, then, as if for something
to exist in law there must be a relationship between two elements (or two sub-
jects): one endowed with auctoritas and one that takes the initiative in the act
in the strict sense. If the two elements or two subjects coincide, then the act is
perfect. However, if there is a gap or incongruity between them, the act must be
completed with auctoritas in order to be valid. But where does the “force” of the auctor come from? And what is this power to augere?
It has been rightly noted that auctoritas has nothing to do with representa-
tion, whereby the acts performed by a mandatary or by a legal representative are
imputed to the mandator. The auctor’s act is not founded upon some sort of legal
power vested in him to act as a representative (of the minor or the incompetent):
it springs directly from his condition as pater. In the same way, the act of the
seller, who intervenes as auctor to defend the buyer, has nothing to do with a
right of guarantee in the modern sense. Pierre Noailles, who had sought in the
last years of his life to outline a unitary theory of auctoritas in private law, could therefore write that it is “an attribute attached to the person, and originally to
the physical person, . . . the privilege, the right that belongs to a Roman, under
the required conditions, to serve as a foundation for the legal situation created
by others” (Noailles 1948, 274). “Like all the powers of archaic law,” he adds,
“be they familial, private, or public, auctoritas too was originally conceived according to the unilateral model of law pure and simple, without obligation or
sanction” (274). And yet we need only reflect on the formula auctor fio (and not
simply auctor sum [I am auctor]) to realize that it seems to imply not so much
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the voluntary exercise of a right as the actualization of an impersonal power
6.3. As we have seen, in public law auctoritas designates the most proper
prerogative of the Senate. The active subjects of this prerogative are therefore the
patres: auctoritas patrum and patres auctores fiunt [the fathers are made auctor s]
are common formulas for expressing the constitutional function of the Senate.
Legal historians have nevertheless always had difficulty defining this function.
Mommsen observed that the Senate does not have an action of its own but can
act only in concert with the magistrate or to complete the decisions of popular
comitia by ratifying laws. The Senate cannot express itself without being ques-
tioned by the magistrates and can only request or “counsel”— consultum is the
technical term—without this “counsel” ever being absolutely binding. The for-
mula of the senatus consultum is si eis videatur, “if it seems right to them [i.e., the magistrates]”; in the extreme case of the senatus consultum ultimum, the formula is slightly more emphatic: videant consules [let the consuls see to it]. Mommsen
expresses this peculiar character of auctoritas when he writes that it is “less than an order and more than a counsel” (Mommsen 1969, 3: 1034).
It is certain, in any case, that auctoritas has nothing to do with the potestas or the imperium of the magistrates or the people. The senator is not a magistrate,
and we nearly never find the verb iubere [to order], which defines the decisions
of the magistrates or the people, used for his “counsels.” And yet, with a strong
analogy to the figure of the auctor in private law, the auctoritas patrum intervenes to ratify the decisions of the popular comitia and make them fully valid. A single formula ( auctor fio) designates both the action of the tutor that completes the act of the minor and the senatorial ratification of popular decisions. The analogy
here does not necessarily mean that the people must be considered as minors
under the tutelage of the patres; rather, the essential point is that in this case too there is that duality of elements that in the sphere of private law defines the
perfect legal action. Auctoritas and potestas are clearly distinct, and yet together they form a binary system.
א The polemics among scholars who tend to unify the auctoritas patrum and the auctor of private law under a single paradigm are easily resolved if one considers that the analogy does not concern the individual figures, but the very structure of the relation between the two elements whose integration constitutes the perfect act. In a study from 1925 that had
a strong influence on Roman scholars, Richard Heinze described the common element
between the minor and the people with these words: “The minor and the people are de-
termined to bind themselves in a certain direction, but their bond cannot come into being
without the collaboration of another subject” (Heinze 1925, 350). That is to say, it is not
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that scholars tend to “depict public law in the light of private law” (Biscardi 1987, 119), but that there is a structural analogy that, as we will see, concerns the very nature of the law.
Juridical validity is not an originary characteristic of human actions but must be conveyed to them through a “power that grants legitimacy” (Magdelain 1990, 686).
6.4. Let us try to better define the nature of this “power that grants legit-
imacy” in its relation to the potestas of the magistrates and the people. What
previous attempts to understand this relation have not taken into account is
precisely that extreme figure of auctoritas that is at issue in the senatus consultum ultimum and the iustitium. As we have seen, the iustitium produces a true and proper suspension of the juridical order. In particular, the consuls are reduced
to the condition of private citizens ( in privato abditi), while every private citizen acts as if he were invested with an imperium. With an inverse symmetry, in
211 bce, at Hannibal’s approach, a senatus consultum resuscitates the imperium of the former dictators, consuls, and censors ( placuit omnes qui dictatores, consules censoresve fuissent cum imperio esse, donec recessisset a muris hostis [It was decreed that all who had been dictators, consuls, or censors should have imperium, until the enemy had withdrawn from the walls] [Livy 26.10.9]). Under extreme conditions (that is to say, under the conditions that best define it, if it is true that
a legal institution’s truest character is always defined by the exception and the
extreme situation) auctoritas seems to act as a force that suspends potestas where it took place and reactivates it where it was no longer in force. It is a power that suspends or reactivates law, but is not formally in force as law.
This relation—at once one of exclusion and supplementation—between
auctoritas and potestas is also found in another institution in which the auctoritas patrum once again shows its peculiar function: the interregnum. Even after the end of the monarchy, when, because of death or whatever other reason, there
remained no consul or other magistrate in the city (except the representatives of
the plebs), the patres auctores (that is, the group of senators who belonged to a
consular family, as opposed to the patres conscripti [conscript fathers]) named an interrex who ensured the continuity of power. The formula used was res publica ad patres redit [The republic returns to the fathers] or auspicia ad patres redeunt
[The auspices return to the fathers]. As Magdelain has written, “During the
interregnum, the constitution is suspended. . . . The Republic is without magistrates, without Senate, without popular assemblies. Then the senatorial group of
the patres meets, and sovereignly names the first interrex, who in turn sovereignly names his own successor” (Magdelain 1990, 359–60). Here too, auctoritas shows
its connection with the suspension of potestas and, at the same time, its capac-
ity to ensure the functioning of the Republic under exceptional circumstances.
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Once again, this prerogative rests immediately with the patres auctores as such.
Indeed, the first interrex is not invested with the imperium of a magistrate, but solely the auspicia (356); and in asserting against the plebians the importance of the auspicia, Appius Claudius states that they belong personally and exclusively to the patres privatim: “nobis adeo propria sunt auspicia, ut . . . privatim auspicia habeamus [The auspices belong so properly to us that . . . we have them as private citizens]” (Livy 6.41.6).
The power to reactivate vacant potestas is not a legal power received from the people or a magistrate but springs immediately from the personal condition of the patres.
6.5. A third institution in which auctoritas shows its specific function of sus-
pending law is the hostis iudicatio. In exceptional situations where a Roman citizen threatened the security of the Republic by conspiracy or treason, he could be
declared hostis, “public enemy,” by the Senate. The hostis iudicatus was not simply likened to a foreign enemy, the hostis alienigena, because the latter was always protected by the ius gentium [law of peoples] (Nissen 1877, 27); he was, rather,
radically deprived of any legal status and could therefore be stripped of his be-
longings and put to death at any moment. What auctoritas suspends here is not
simply the juridical order, but the ius civis, the very status of the Roman citizen.
The relation—at once antagonistic and supplementary—between auctoritas
and potestas is finally shown in a terminological peculiarity that Mommsen was
the first to notice. The syntagma senatus auctoritas is used in a technical sense to designate a senatus consultum that, becau
se it has been opposed by an intercessio,
is without legal effects and can therefore not be executed (even if it was entered
as such among the official acts, auctoritas perscripta). That is, the auctoritas of the Senate appears in its purest and most perspicuous form when it has been invalidated by the potestas of a magistrate, when it lives as mere writing in absolute opposition to the law’s being in force [ vigenza]. For a moment here auctoritas shows its essence: the power [ potenza] that can at once “grant legitimacy” and
suspend law exhibits its most proper character at the point of its greatest legal
inefficacy. It is what remains of law if law is wholly suspended (in this sense, in
Benjamin’s reading of Kafka’s allegory, not law but life—law that blurs at every
point with life).
6.6. It is perhaps in the auctoritas principis—that is, in the moment when Au-
gustus, in a famous passage of the Res gestae, claims auctoritas as the foundation of his status as princeps—that we can better understand the meaning of this unique
prerogative. It is significant that the rebirth of modern studies of auctoritas coincides precisely with the publication in 1924 of the Monumentum Antiochenum,
which allowed a more accurate reconstruction of the passage in question. The
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issue here concerned a series of fragments of a Latin inscription containing a pas-
sage from chapter 34 of the Res gestae, which was extant in its entirety only in the Greek version. Mommsen had reconstructed the Latin text in these terms: “post
id tempus praestiti omnibus dignitate (axiōmati), potestatis autem nihil amplius habui quam qui fuerunt mihi quoque in magistratu conlegae [After that time I
surpassed all in dignitas, although I had no more potestas than those who were my colleagues in each magistracy].” The Antiochean inscription showed that Augustus had written not dignitate but auctoritate. Commenting in 1925 on the new information, Heinze wrote, “We philologists should all be ashamed for having
blindly followed Mommsen’s authority: the only possible antithesis to potestas—
that is, to the legal power of a magistrate—was, in this passage, not dignitas, but auctoritas” (Heinze 1925, 348).
The Omnibus Homo Sacer Page 36
