Homo Sacer: a person who may be killed but not sacrificed
By: Mustafa K. Saygi
Tags: Politics, History, Law, Philosophy, Rome

Homo Sacer: a person who may be killed but not sacrificed

A figure of Roman law that poses existential questions about the nature of law and power

Dante and Virgil. William-Adolphe Bouguereau. 1850. Musée d’Orsay, Paris.

Homo sacer (Latin for “the sacred man”) is a status stemming from Roman law: it is a person who is excluded, who can be killed by anyone (qui occidit parricidi non damnatur), but who cannot be the subject of a human sacrifice during a religious ceremony (neque fas est eum immolari). This person has no longer any civil rights.

It is, with the primary rite of sacrifice, one of the founding elements of the magico-ritualist thought emerging in the history of Rome.

Origins

Photo by Birmingham Museums Trust on Unsplash

The meaning of the term “sacer” in Ancient Roman religion does not really correspond to the meaning it took after Christianization, and which was adopted into English as sacred. In early Roman religion “sacer” denotes anything “set apart” from common society and encompasses both the sense of “hallowed” and that of “cursed”. The homo sacer could thus also simply mean a person expunged from society and deprived of all rights and all functions in civil religion. With respect to certain monarchs, in certain western legal traditions, the concepts of the sovereign and of the homo sacer have been conflated.

The Enigmatic Nature of the Concept given Agamben

Photo by Giammarco Boscaro on Unsplash

This classical concept has attracted significant attention in contemporary critical theory because Italian philosopher Giorgio Agamben has devoted several books to exploring the intricacies of its multi-layered meaning. Homo sacer is a paradoxical figure: it is the one who may not be sacrificed, yet may be murdered with impunity. In this sense, the homo sacer is outside or beyond both divine and human law.

Although Roman law no longer applied to someone deemed a Homo sacer, they remained “under the spell” of law. Agamben explains the latter idea as “human life … included in the juridical order solely in the form of its exclusion (that is, of its capacity to be killed)”. Homo sacer was therefore excluded from law itself, while being included at the same time. This figure is the exact mirror image of the sovereign who stands, on the one hand, within law (so he can be condemned, e.g. for treason, as a natural person) and outside the law (since as a body politic he has power to suspend law for an indefinite time).

The Place of this Concept in Modern Biopolitics

Giorgio Agamben draws on Carl Schmitt’s definition of the Sovereign as the one who has the power to decide the state of exception (or justitium), where law is indefinitely “suspended” without being abrogated. But if Schmitt’s aim is to include the necessity of state of emergency under the rule of law, Agamben on the contrary demonstrates that all life cannot be subsumed by law. As in Homo sacer, the state of emergency is the inclusion of life and necessity in the juridical order solely in the form of its exclusion.

Agamben’s provocative thesis is that the homo sacer is evidence not merely of an original ambivalence in the notion of the sacred, as anthropology has long contended, but that the realm of the political itself is constituted by making an exception of the very people in whose name it is created.

The homo sacer thus emblematizes the sovereign’s power over life and death, the power to designate a life that is worth neither saving nor killing. For Agamben, the most complete realization of homo sacer is the concentration-camp inmate. But rather than argue that homo sacer is a product of Nazism, or totalitarian politics more generally, Agamben contends that on the contrary it is the sheer possibility of so regarding human life that enabled Nazism’s exterminationist politics.

The very same possibility, he argues, is at the origin of democracy too, a fact that is displayed in the way politics has been constituted as a biopower focused on the population not the individual.