The Omnibus Homo Sacer

by Giorgio Agamben

  regula and vita, constitutes, according to Thomas, a phenomenon that is substantially alien to the Roman juridical tradition and to law tout court: “‘ Vita vel

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  regula,’ life or rule, that is to say, life as rule. Such is the register—and assuredly it is not that of law—where the legality of life as incorporated law can be thought”

  (ibid.). Developing Thomas’s intuition in the opposite direction, others have be-

  lieved they saw in the monastic rules the elaboration of a normative technique

  that permitted the constitution of life as such as a juridical object (Coccia, p. 110).

  2.2. An examination of the text of the rules shows that they present a no less

  contradictory attitude toward the sphere of law. On the one hand, they not only

  firmly enunciate genuine precepts of behavior, but often also contain a detailed

  list of penalties incurred by the monks who transgress them. On the other hand,

  they urge the monks not to consider the rules as a legal apparatus. “The Lord

  grant,” reads the conclusion of the rule of Augustine, “that you observe all these

  things with joy . . . not as slaves under the law, but as those who have been set

  free by grace [ ut observetis haec omnia cum dilectione . . . non sicut servi sub legel, sed sicut liberi sub gratia costituti]” ( Regula ad servos Dei, pp. 1377/32). To a monk who asked him how he should behave with his disciples, Palamon, the legendary master of Pachomius, responds: “be their example [ typos], not their legisla-

  tor [ nomothetēs]” ( Apophthegmata patrum, pp. 563/191). In the same sense, Mar Abraham, upon laying out the rule of his monastery, recalls that we must not

  consider ourselves “legislators, neither for ourselves nor for others” ( non enim

  legislatores sumus, neque nobis neque aliis; cf. Mazon, p. 174).

  The ambiguity is evident in the Pachomian Praecepta atque iudicia, which

  begins with the resolutely antilegalistic statement plenitudo legis caritas (“love is the fulfillment of the law”), only to enunciate immediately afterward a series of

  matters of an exclusively penal character (Bacht, p. 255). Casuistic surveys of this

  type are encountered very often in the rules, either in the same context as the pre-

  cepts or collected in sections internal to the rule (chaps. 13 and 14 of the Rule of the Master, or 23–30 in the Rule of St. Benedict) or else separately (as in the above-cited Praecepta atque iudicia or in the Poenae monasteriales of Theodore the Studite).

  A vision of the whole of what can be defined as the monastic penal system

  can be inferred from chapters 30–37 of the Concordia regularum, in which Ben-

  edict of Aniane organized the ancient rules by topic. The penalty par excellence

  is excommunicatio, the total or partial exclusion from the common life for a

  period that is longer or shorter according to the gravity of the sin. “If a brother

  is found guilty of lighter faults,” reads the Benedictine rule, “let him be excluded

  from the common table [ a mensae participatione privetur]. . . . In the oratory

  he shall intone neither Psalm nor antiphon nor shall he recite a lesson until he

  has made satisfaction; in the refectory he shall take his food alone after the

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  community meal . . . until by suitable satisfaction he obtains pardon” (chap. 24;

  Pricoco, p. 188). To graver sins there would correspond the exclusion of all con-

  tact with the brothers, who would ignore his presence: “He shall not be blessed

  by anyone passing by, nor shall the food that is given him be blessed. . . . If a

  brother presumes without an order from the abbot to associate in any way with

  an excommunicated brother, or to speak with him, or to send him a message, let

  him incur a similar punishment of excommunication” (chaps. 25–26; Pricoco,

  p. 191). In the case of recidivism, one would proceed to the application of cor-

  poral punishments and, in the extreme case, to expulsion from the monastery:

  “But if the excommunicated brothers show themselves so arrogant that they

  persist in the pride of their heart and refuse to make satisfaction to the abbot by

  the ninth hour of the third day, they are to be confined and whipped with rods

  to the point of death and, if the abbot so please, be expelled from the monas-

  tery” (Vogüé 2, 2, pp. 47/153). In some monasteries, a place even seems to have

  been provided to be used as a prison ( carcer), in which those who had incurred

  the gravest sins were isolated: “The monk who molests children or adolescents,”

  reads the rule of Fructuosus, “constrained by iron chains, shall be punished with

  six months in prison [ carcerali sex mensibus angustia maceretur]” (Ohm, p. 149).

  And yet not only is punishment not a sufficient proof of the juridical char-

  acter of the precept, but the rules themselves, in an epoch when punishments

  had an essentially afflictive character, seem to suggest that the punishment of the

  monks had an essentially moral and amendatory meaning, comparable to ther-

  apy prescribed by a doctor. When establishing the penalty of excommunication,

  the Rule of St. Benedict specifies that the abbot must have a particular care for

  excommunicated brothers:

  Let the Abbot be most solicitous in his concern for delinquent brethren, for “it

  is not the healthy but the sick who need a physician.” And therefore he ought to

  use every means that a wise physician would use. Let him send “senpectae,” that

  is, brethren of mature years and wisdom, who may as it were secretly console the

  wavering brother and induce him to make humble satisfaction; comforting him

  that he may not “be overwhelmed by excessive grief.” (chap. 27; Pricoco, p. 193)

  The counterpart of this medical metaphor in Basil is the inscription of the obliga-

  tion of obedience, not within the prospect of a legal system, but within the more

  neutral one of the rules of an ars or technique. “Even in the case of the arts,” we read in chapter 41 of the rule, dedicated to “authority and obedience,”

  the individual ought not be permitted to follow the one he is skilled in or the

  one he wishes to learn, but that for which he may be judged suited. He who

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  denies himself and completely sets aside his own wishes does not do what he wills

  but what he is directed to do. . . . One who is master of an art that is in no way

  objectionable to the community ought not abandon it, however, for to deem of

  no account that which is at one’s immediate disposal is the sign of a fickle mind

  and an unstable will. And if a man is unskilled, he should not of himself take up

  a trade, but should accept the one approved by his superiors, so as to safeguard

  obedience in all things.” (Basil, Regulae fusius tractatae, chap. 41)

  In the Rule of the Master, what in Basil was an analogy referring above all to

  the manual labor of the monks becomes the metaphor that defines the whole

  monastic life and discipline, conceived, surprisingly enough, as the learning and

  exercise of an ars sancta. After having listed all the spiritual precepts that the abbot must teach, the rule concludes: “Behold, this is the holy art which we must exercise

  with spiritual instruments” ( ecce haec est ars sancta, quam ferramentis debemus spiritualibus operari; Vogüé 2, 1, pp. 372/117). All the terminology of the rule is in this technical regi
ster, which recalls the vocabulary of the schools and workshops of late

  antiquity and the Middle Ages. The monastery is defined as officina divinae artis:

  “The workshop is the monastery, where the instruments of the heart are kept in the

  enclosure of the body, and the work of the divine art can be accomplished” (ibid.,

  pp. 380/119). The abbot is the artifex of an art, “not attributing the performance of it to himself but to the Lord” (pp. 362/114). The very term magister, which designates the one who speaks in the text, is likely meant to refer to the master of an ars.

  It could not be more clearly said that the precepts that the monk must observe are

  to be assimilated to the rules of an art rather than to a legal apparatus.

  א The paradigm of the ars exercised an influence that is not to be overlooked on

  the world in which the monks conceived not only their rules, assimilated to the rules

  of an ars, but also their activity. Cassian, in the Conlationes, analogizes the profession of the monastic life to learning an art: “My sons, when a man wishes to acquire the skills

  of a particular art,” he writes of those who want to embrace the monastic life, “he needs

  to devote all his possible care and attention to the activities characteristic of his chosen profession. He must observe the precepts and, indeed, the advice of the most successful

  practitioners of this work or of this way of knowledge. Otherwise he is dealing in empty

  dreams. One does not come to resemble those whose hard work and whose zeal one

  declines to imitate” (Cassian 2, pp. 12/184).

  We have shown elsewhere that an analogous comparison with the model of the arts

  (with both the artes in effectu, which are realized in a work, and the artes actuosae, like dance and theater, that have their end in themselves) was important in theology for determining the status of the liturgical action (cf. Agamben 1, chap. 2, §8).

  In this sense, the monastery is perhaps the first place in which life itself—and not

  only the ascetic techniques that form and regulate it—was presented as an art. This anal-

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  ogy must not be understood, however, in the sense of an aestheticization of existence,

  but rather in the sense that Michel Foucault seemed to have in mind in his last writings,

  namely a definition of life itself in relation to a never-ending practice.

  2.3. The entirely peculiar character of the monastic precepts and their trans-

  gression emerges forcefully in an anecdote from the life of Pachomius, contained

  in the manuscript Vaticanus Graecus 2091. Vogüé, who has drawn attention to

  this text, contends that it goes back to a more ancient version of the biography

  of Pachomius, evidence of the beginnings of eastern cenoby. The anecdote re-

  lates that, in the course of a quarrel, a brother struck another, who responded

  to the violence with an equal blow. Pachomius summoned the two monks into

  the presence of the whole community and, after having interrogated them and

  obtained their confession, expelled the one who had struck first and excommu-

  nicated the other for a week. “While the first monk was being led out of the

  monastery,” the anecdote relates,

  a venerable old man named Gnositheos, eighty years of age—and in fact, as his

  name indicated, he had knowledge of God—came forward and cried out from

  among the monks: “I, too, am a sinner and I am leaving with him. If anyone is

  without sin, let him remain here.” And the whole crowd of brothers, as though

  they were one man, followed the old man, saying, “We are also sinners and we

  are going with him.” Seeing them all leaving, the blessed Pachomius ran out in

  front of them, threw himself on the ground with his face in the dirt, covered his

  head with earth, and asked forgiveness of them all.

  After the return of all the brothers, including the guilty one, Pachomius, re-

  turning into himself, thought: “If murderers, magicians, adulterers, and those

  who are guilty of whatever other sin take refuge in the monastery to work out

  their salvation there by penance, who am I to drive a brother from the monas-

  tery?” (Vogüé 3, pp. 93–94). And not only is an analogous episode attributed in

  the Apophthegmata patrum to the abbot Bessarion (141b), but the Rule of Isidore ( Regula monarchorum, chap. 15) confirms that the delinquent monk must not be

  expelled from the monastery, “because the one who could be amended through

  a diligent penance, once expelled, should not be devoured by the devil.”

  The analogy between the judgment of the abbot and a penal process, though

  plausible at first glance, loses all credibility.

  2.4. Cándido Mazon has dedicated a monograph to the problem of the ju-

  ridical nature of monastic rules. The conclusion that he reaches after a full exam-

  ination of the text of both Eastern and Western rules is that they “are not truly

  laws or precepts in the strict sense of the term,” and that, nevertheless, neither

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  are they reducible to “mere advice that leaves the monks at liberty to follow it or

  not” (Mazon, p. 171). It was a matter, according to Mazon, of norms of an “emi-

  nently directive character,” whose goal was not so much to “impose” obligations

  as to “declare and show to the monks the obligations they had agreed to, given

  the kind of life they had professed” (ibid.).

  The solution is so unsatisfying that the author, not taking the risk of taking

  sides between those who maintain the juridical nature of the rules and those who

  reduce them to simple advice, ends by considering them as a kind of hybrid,

  “something that goes beyond advice, but does not reach the point of being law

  in the proper sense” (ibid., p. 312).

  In stating this thesis, which is certainly not clear, the author is doing noth-

  ing but trying to find a compromise solution to a question that had divided

  the scholastics between the twelfth and fifteenth century. This is not the place

  to reconstruct the history of this debate, which involved, among others, Ber-

  nard of Clairvaux, Humbert of Romanis, Henry of Ghent, Thomas Aquinas,

  and Suárez, and in which what was at stake was the problem of the obligatory

  character of the rules. We will linger over three moments in which the problem

  emerged into the light according to different modalities and found each time a

  solution that focused on a significant aspect of the problem.

  The first moment is Humbert Romanis’s commentary on the Rule of St. Augustine, and specifically on the phrase haec igitur sunt quae ut observetis praecipimus in monasterio constituti (“these are the things which we command you who are assembled in the monastery to observe”), with which Augustine introduces his pre-

  scriptions. The problem, which Humbert initially lays out in the traditional form

  of a quaestio, is “if everything that is contained in the rule is in praecepto” (that is to say, is obligatory; Romanis, p. 10). The problem is thus one of the relation between

  regula and praeceptum. If this relation is conceived as total identity, then everything that is in the rule is a precept: this is the position of those who, in Humbert’s

  words, hold that in Augustine’s phrase, the demonstrative pronoun haec “indicates

  everything that is in the rule” ( demonstrat omnia quae sunt in regula; ibid.). To this rigorist thesis—which will find its champion in Henry of Ghent—Humbert oppos
es the position of those who maintain the noncoincidence of rule and precept,

  either in the sense that the obligation refers to the observance of the rule in gen-

  eral and not to the individual precepts ( observantia regulae est in praecepto, sed non singula quas continentur in regula) or—and this is the thesis that he professes—that the intention of the saint was to make obligatory the observance of the three essential precepts of obedience, chastity, and humility, and not of everything that per-

  tains to the monk’s perfection. Indeed, in the Gospel one must distinguish among

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  precepts that have both the form and intention of a precept ( modum et intentionem

  praecepti ), like the commandment of reciprocal love; others that are precepts in

  intention, but not in form (like the precept not to steal); and others, finally, that

  are such in form but not in intention. So also one must think that a wise man

  like Augustine, “even if he has spoken in the mode of a precept, did not intend

  to put everything under the precept, providing in this way an occasion of damna-

  tion to those who had come to the rule to find salvation” (p. 13). In another text,

  Humbert refers to the three obligatory precepts (obedience, chastity, humility) as

  the tria substantialia, and in this abbreviated formula his thesis imposed itself on the majority of theologians and canonists. In his commentary on the third book

  of the Decretals, Hostiensis formulates it in this way: “The rule is in precept, but that which talks about the observance of the rule must be understood as referring

  indistinctly to the three substantials. Everything else that is contained in the rule

  we do not keep as if it were in precept; otherwise scarcely one monk in four could

  be saved” (Mazon, p. 198).

  2.5. Another way of putting the problem of the obligatoriness of the rule

  does not concern the relation between rule and precept, but the very nature of

  obligation, which can be ad culpam, in the sense that transgression produces a

  mortal sin, or only ad poenam, in the sense that transgression implies a penalty

  but not a mortal sin. It is in this context that the problem assumes the technical

  form of the juridical or nonjuridical (or more exactly: legal) form of the rules.