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Sovereignty before the Law:

Agamben and the Roman Republic


Michle Lowrie
*
The exercise of power is not a naked fact, an institutional given, nor is it a structure that holds
out or is smashed: it is something that is elaborated, transformed, organized; it endows itself
with processes that are more or less adjusted to the situation.
1
The stories of Tiberius and Gaius Gracchus are narrative doublets; whether the former
serves as legal precedent for the latter depends on how the law intervenes in the two cases.
Each is killed in an act of state violence as a result of his agitation as tribune, the
representative of the common people, in favour of the Roman plebs. Tiberius was attacked
at the instigation of the pontifex maximus in 133 BCE in a metaphorical sacrifice that
plays out many aspects of the term sacer, which can mean either sacred or accursed.
Gaius became vulnerable in 121 BCE after the Senate passed the ultimate decree (senatus
consultum ultimum), which removed him from the protection of the law. In Rome,
foundation stories often revolve around brothers, violence, or both. Our sources postdate
the events by a considerable time-span and agree in making the disturbance around the
Gracchi the starting point for the subsequent century of civil war, which only ended
at least provisionallywhen Augustus established the principate after the battle of Actium
in 31 BCE. The Gracchi are used repeatedly as examples justifying killing citizens to
establish order in the state.
I will argue that the deaths of these brothers allows for a foundation narrative of state
violence that explores the interplay between the sacred and the law.
2
These two terms are
(2007) 1 Law and Humanities 3155
31
*
Associate Professor of Classics, New York University, USA. Many thanks to the audience at Yale University
for their lively response to this paper and to Joy Connolly for perceptive criticism of my argument, for
sharing her research with me in advance of publication, and for generous dialogue.
1
Michel Foucault, The Subject and Power in James D Faubion (ed), Michel Foucault: Power (R Hurley et al
(tr)) (New Press, New York 2000) 345.
2
Donald C Earls Tiberius Gracchus: A Study in Politics. Collection Latomus LXVI (Latomus, Brussels 1963) is
a historical analysis that shows the political circumstances behind Tiberius Gracchus actions to be counter
to the later sources accounts, which were influenced largely by the politics of the first century BCE (5, 23,
3039, 43, 107). Foundations are retrospective narratives and I analyse this aspect here rather than historical
reality. Andrew Lintott, The Constitution of the Roman Republic (Oxford University Press, 1999) 7 emphasises
the importance of stories and the interpretation of narrative as a source for the Roman constitution.
important for recent sovereignty theory and the larger purpose of this paper is to show
that sovereignty, which was theoretically divided between the Senate and the Roman
People in a state entitled SPQR (senatus populusque romanus), had no stable location in
the Roman Republic. Rather, it emerged sporadically but repeatedly in a series of acts
over a century of civil war until it crystallised in the person of Augustus and thereafter in
the emperor.
3
A fuller historical treatment of the emergence of sovereignty at Rome would
cover sovereign acts of state violence between the Gracchi and the early empire. This
paper has a more limited scope: it tests the hypothesis that sovereignty has an intimate
relation to state violence against citizens in the senatus consultum ultimum(SCU), which
was first used against Gaius Gracchus, and at a few key points, namely the deaths of the
Gracchi and in the Catilinarian conspiracy, where Cicero used the Gracchi as an exemplum
for killing the Catilinarians without trial in 63 BCE. Although state violence pre-existed
the treatment of the Gracchi at Rome, the narratives told of these events by Cicero, Velleius
Paterculus, Plutarch and others treat them as new and exemplary. The model they offer
is read by Romans of the first century BCE and early empire as relocating sovereignty
away from the people. I hope to show, however, that we can offer a counter-narrative
where the violent death of citizens is a site of contestation over sovereignty rather than
an affirmation of decisionism.
Giorgio Agambens revival of the ancient Roman category of the homo sacer (sacred
man or accursed man) connects the sacred to the law. He attempts to argue that implicit
in Western conceptions of sovereignty is the states extra-juridical power over the life and
death of its citizens. He takes his conception of the homo sacer, a man who can be killed
with impunity but not sacrificed, from Verrius Flaccus, an antiquarian scholar who
tutored the emperor Augustus grandsons. Flaccus definition of the term in his On the
Meaning of Words, a Latin lexicon treating rare and obsolete words,
4
preserves a quotation
from a much older law. The homo sacer was already an obscure concept in the time of
Augustus
5
and it hardly seems evident that the Roman formulation of sovereignty at that
point remains relevant for todays modern democracies. But let us remember, the Roman
Republic was a model for the American Republic and the form sovereignty took under
32 Law and Humanities
3
Michel Foucault, in Governmentality and The Subject and Power, both in Faubion (n 1), outlines a fluid
conception of power that does not dwell in a particular constitutional space, but rather exists in the
interstices of social and political power. The former essay distinguishes sovereignty with its focus on the
leader from governments concern for the regulation of the populace. For fluidity and evolution in the
Roman constitution and the law see Lintott, ibid, 7, 6364; Joy Connolly, Political Theory in The Oxford
Handbook of Roman Studies (A Barchiesi and W Scheidel (eds)) (Oxford University Press, 2008
forthcoming). Lintott makes a comparison to English common law (ibid, 56). I am dealing with a more
limited conception of sovereignty in the wake of Carl Schmitt, defined below.
4
Oxford Classical Dictionary, 3rd edn (Oxford, 1996), under Verrius Flaccus.
5
Livy presents this figure as already nearly forgotten at the time when tribunician sacrosanctity (whoever
harmed a tribune would be sacer to Jupiter) was instituted: the memory of which thing [sacrosanctity] had
already become obsolete, they renewed it with certain ceremonies brought back from a great interval, 3.55.6.
Augustus, at the point of transition from the Roman Republic to the Empire, was arguably
paradigmatic for future European monarchies. Furthermore, the explanatory value of
the homo sacer resides not in its historicity, but in its being good to think with.
6
The implication of power over life and death in the construction of sovereignty is a
much larger idea than the problematic reality of the homo sacer at any point in Roman
history. Given the pressures on liberal democracies today and the current contest in the
United States between the Bush administration and the various other sites of legitimacy
outside the presidencythe law-making houses and the law-preserving courtsit has
become imperative to rethink yet again the structure of sovereignty and its relation to
life. The transition at Rome from Republic to Empire, precisely because of the clarifying
effect of historical distance, offers a good locus for the analysis of conceptions of
sovereignty. Although a broader range of sovereignty theory would be needed to elucidate
the story of the Gracchi more fully, I focus on Agamben because his formulation has
recently become topical and controversial. He has brought some obscure Roman notions
to bear on modernity, and these need to be tested against Roman history. On the one
hand, I find that his model can help to elucidate some of the dangers of the Roman
solution.
7
His ideas about lifes vulnerability to power shed light on the political crises at
Rome beyond the applicability of the precise category of the homo sacer. On the other,
Roman thought about sovereignty will conversely reveal some weaknesses, historical and
theoretical, in Agambens conception.
The treatment of the Gracchi became paradigmatic for Cicero and others to argue
that the state had the right to suspend, if not the rule of law, then at least the regular
workings of the law when under threat. The collapse of the Roman Republic is marked
by a series of violent political deaths culminating in the widespread assassination, or
proscription, of political rivals undertaken by the triumvirs (Mark Antony, the future
Augustus, and Marcus Aemilius Lepidus). The definition of the homo sacer was offered by
a thinker in Augustus inner circle at a pivotal moment in changes in sovereigntys
construction; while there is insufficient evidence to show the homo sacer formed part of
Augustus thinking, this definition is less useful for early Rome than as an idea from the
period of transition from Republic to Empire. In the face of the laws weakness when
confronted with political manipulation, the establishment of precedent in the narrative
form of the exemplum developed a logic of its own. Exceptional behaviour transformed
through repetition into custom.
Agamben and the Roman Republic 33
6
Eva Geulen, Giorgio Agamben, zur Einfhrung (Junius, Hamburg 2005) 1213: Er has mit dem Begriff
des nackten oder blossen Lebens etwas getroffen, das uns alle umtreibt.
7
Joy Connolly, The State of Speech: Rhetoric and Political Thought in Ancient Rome (Princeton, Princeton NJ
2007) argues that many of the formulations of modern Republicanism were first articulated by Cicero, and
in her current research, Talk about Virtue: Republicanism Ancient and Modern (under contract with
Duckworth), shows the relevance of Roman writings for contemporary political issues. I share a belief that
Roman politics remain exemplary for modernity, but pursue here the strand that leads to empire.
I will read the story of the Gracchi and state violence through several lenses:
Agambens theory about the relation of the homo sacer to sovereign power, Ciceros use
of the brothers as an exemplum during the Republic, and Plutarchs post-Augustan
narrative. Let us start with Agamben and untangle some differences between his and
Verrius Flaccus definition of the homo sacer.
HOMO SACER AND THE STATE OF EXCEPTION
Agamben sees a telling parallel between the sovereign and the homo sacer in that both
exist in a zone of indistinction with regard to the law, the former in his ability to suspend
the law, the latter in his exemption from its protection. The two together help to define
the legal sphere negatively through their exception from it.
In his analysis of the relation of sovereign power to the law, Agamben relies on Carl
Schmitts definition of the sovereign as he who decides on the state of exception.
8
The
state of exception is the temporary suspension of the rule of law for the purpose of
preserving the state under an exceptional threat not already anticipated within the legal
structures in place.
The paradox of sovereignty consists in the fact that the sovereign is, at the same time, outside
and inside the juridical order. If the sovereign is truly the one to whom the juridical order
grants the power of proclaiming a state of exception and, therefore, of suspending the orders
own validity, then the sovereign stands outside the juridical order and, nevertheless, belongs
to it, since it is up to him to decide if the constitution is to be suspended in toto (Schmitt,
Political Theology, p 13). The specification that the sovereign is at the same time outside and
inside the juridical order (emphasis added) is not insignificant: the sovereign, having the legal
power to suspend the validity of the law, legally places himself outside the law.
9
Schmitt idiosyncratically locates sovereignty not in the law-making body of a state
in Republican Rome the assemblies of the people (populus)but rather in the body
having the authority to suspend the rule of law. At Rome there were a variety of evolving
mechanisms for states of emergency that were located by and large in the magistrates
34 Law and Humanities
8
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (G Schwab (tr)) (MIT Press,
Cambridge MA 1985 [1922]) 5.
9
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (D Heller-Roazen (tr)) (Stanford University
Press, Stanford CA 1998) 15. Agambens argument can be backed up by Roman law. A passage in Gaius
shows that the emperor was both outside the law in his ability to create it, but subject to the law since his
power derived from it: A constitution of the prince is that which the emperor lays down in a decree, or
edict, or letter. Nor has there ever been any doubt, but that this has the force of law, since the emperor
himself receives his power by law: Inst 1.5. The law-making power of the emperor was specifically that of
establishing exempla publicly valid in perpetuity: Fronto ad M Caes 1.6.23. Citations and (adapted)
translations from Michael Peachin, (1996) Iudex vice Caesaris: Deputy Emperors and the Administration of
Justice during the Principate (Steiner, Stuttgart 1996) 19. See his numerous sources for the ambiguity of the
emperors position as both law-giver and subject to the law, 2425.
(who declared a dictatorship) and the Senate (SCU).
10
Schmitt defines sovereignty neither
with regard to the making of the law nor by reference to the regular workings of
government once in place, but at the limit point where these are deemed insufficient to
protect their continued operation. For Schmitt, sovereignty is revealed not at the
foundational point of law-making violence, but in an anomaly of law-preserving violence,
where the state suspends itself for its own protection.
11
The homo sacer similarly exists in a zone of exclusion from the law, but from the other
side: he is removed from the laws protection. Agamben relies on the following definition
by Verrius Flaccus:
12
But the sacred/accursed man is he, whom the people has judged because of an evil deed; and
it is not right according to divine law for him to be sacrificed, but he who kills him is not
condemned of murder; for in the first tribunician law legal provision against this is made: if
anyone should kill a man who is sacred/accursed by that plebiscite, he would not be a murderer.
From this every evil and dishonest man is accustomed to be called sacred/accursed.
Agamben finds that neither ancient nor modern scholars can account for all aspects
of this figure. One strand of scholarship understands consecratio as a weakened and
secularized residue of an archaic phase in which religious law was not yet distinguished
from penal law and the death sentence appeared as a sacrifice to the gods.
13
This can
explain impune occidi, but not the ban on sacrifice. Another sees traces of an archetypal
figure of the sacredconsecration to the gods of the underworldwhich is analogous to
the ethnological notion of taboo: august and damned, worthy of veneration and
provoking horror.
14
This makes sense of the prohibition on sacrifice, but cannot explain
why anyone can kill homo sacer without being stained by sacrilege.
15
Agamben observes
that this figure stands in the same relation of exception to both political and religious
law.
16
He is an exception to the law against homicide, which ordinarily makes the killer
Agamben and the Roman Republic 35
10
Andrew Lintott, Violence in Republican Rome (Oxford University Press, 1999) 4 refers to the use of the
senatus consultum ultimum in a state of emergency to suspend the normal workings of the constitution.
Chapter 11, States of Emergency, gives an overview.
11
Walter Benjamin, in Critique of Violence (in P Demetz (ed) Reflections (E Jephcott (tr)) (Harcourt Brace
Jovanovich, New York 1978 [1921])), analyses the mutual implication of law-making and law-preserving
violence. I show the relevance of these terms to Roman thought in Vergil and Founding Violence (2005)
27 Cardozo Law Review 94576.
12
The citation is preserved in Pompeius Festus abridgment of Verrius Flaccus lexicon under sacer mons (holy
mountain). Agamben cites only Festus because he is not interested in the historical development of these
ideas; they are timeless to him. He comes to Augustus later in State of Exception (K Attell (tr)) (University
of Chicago Press, Chicago 2005) ch 6, but never realises that the definition of homo sacer is a formulation
from the Augustan age.
13
Agamben (n 9) 7273: Mommsen, Lange, Bennett, and Strachan-Davison; see his bibliography.
14
Ibid, 73: Kernyi and Ward Fowler.
15
See also Huguette Fugier, Recherches sur lexpression du sacr dans la langue latine (Les Belles Lettres, Paris
1963) 238 for incompatibilities between the legal and religious strands of scholarship.
16
Agamben (n 9) 8186.
of a free man a parricide,
17
and is also an exception to ritual killings for purification, in
that it is not right according to divine law to sacrifice him. This status as double exception
receives support from Eva Cantarellas suggestion that consecratio was not a death penalty
per se: the distinction between consecratio and sacrificiumdoes not logically entail putting
the homo sacer to death; rather such a person becomes subject to death as a consequence
of his exclusion from the states protection.
18
Similarly, Bennetts point that in the late
Republic not only did the death sentence become rare, but exile became an acceptable
alternative
19
supports the importance of exclusion from the state for the homo sacer.
Agamben locates the paradox of homo sacer in a political structure prior to the
distinction between sacred and profane, religious and juridical,
20
and makes a bold link
between homo sacer and the political sphere of sovereignty, which takes the form of a
zone of indistinction between sacrifice and homicide:
The sovereign sphere is the sphere in which it is permitted to kill without committing homicide and
without celebrating a sacrifice, and sacred lifethat is, life that may be killed but not sacrificed
is the life that has been captured in this sphere.
21
Both citizens and states may pass into a state of exception, which in turn defines the
political order.
Given his interest in the relation between political and legal spheres, it is surprising,
however, that Agamben does not pursue Flaccus systematic location of the power to
declare a man sacer in the people. Flaccus formulation represents, in my view, three stages
of legal procedure: (1) the original plebiscite (plebei scito), which presumably defined
what made someone sacer, (2) the tribunician law (lege tribunicia prima), citing the
plebiscite with the provision that whoever kills the homo sacer will not be charged with
parricide,
22
and (3) the adjudication of the people (populus iudicavit), which would
declare an individual sacer.
23
All of these stages entail popular, rather than senatorial or
executive, vehicles of power.
36 Law and Humanities
17
Agamben (n 9) 81 cites the law attributed to Numa: if anyone knowledgably give a free man to death by
deceit, let him be a murderer. Alfred Ernout (ed), Recueil de textes latins archaques (ditions Klincksieck,
Paris 1973) 112. According to Andr Magdelain, Paricidas in Y Thomas (ed), Du chtiment dans la cit:
supplices corporels et peine de mort dans le monde antique (cole franaise de Rome, Rome 1984) 5601,
deceit in this formulation assimilates the use of trickery to (lost) legislation concerning killing with force,
ie, Numas law is not quite the relevant missing law, but can be used to reconstruct it.
18
Eva Cantarella, I supplizi capitali in Grecia e a Roma (Rizzoli, Milan 1991) 297305.
19
Harold Bennett, Sacer Esto (1930) 61 Transactions of the American Philological Association 18.
20
Agamben (n 9) 74.
21
Agamben (n 9) 83 (emphasis in original).
22
Magdelain (n 17) 558 identifies this law as the lex sacrata of 494 BCE on tribunician sacrosanctity. He sees
the verbal formulation not as a citation, but as Flaccus reconstruction of the first plebeian oath. In this
case, the plebiscite and the lex could be different parts of the same historical event, namely the secession of
the plebs, but we have insufficient evidence to make this determination.
23
I thank Michael Peachin for helping to untangle the legal layers.
Just as Agamben, following Schmitt, ignores the law-making aspect of sovereignty,
he also ignores the legal determination of the homo sacer in Flaccus. At Rome, both of
these operations were located in the people. Flaccus describes no monarch or exclusive
senatorial class imposing this structure from above, but rather the plebs setting up a legal
mechanism for self-protection. Agamben takes Flaccus definition broadly, as a statement
about life, which can be killed but not sacrificed, in its relation to sovereignty, which, by
suspending the laws, may kill this life. He later considers the plebeian insurrection and the
lex sacrata that declared sacer anyone who violated a tribune,
24
and concludes that the lex
sacrata founded a political power that in some way counterbalanced the sovereign power,
but does not pursue this statements implications. Since Flaccus explicitly cites the first
tribunician law, namely the lex sacrata, as the origin of homo sacer, his definition cannot
be used to generalise about sovereign power independent of the oppositional power of the
plebs. The role of homo sacer in protecting plebeian power should not be forgotten either
in Roman history or in relation to the 20th century atrocities that Agamben analyses. The
historical irony is that consecratio was used, among other things, to protect the peoples
magistrates, the tribunes, but in the late Republic the people, often via the tribunes, were
the ones to object to the Senate and its delegates exercising the sovereign decision to put
citizens to death without trial. Still, the category sacer is ancient and surpasses the
protection it affords the plebs,
25
and Agambens larger point about sovereigntys power
over life or death need not depend on Roman concepts or structures.
The homo sacer as defined by Verrius Flaccus was determined as a category by a
political process through which laws and plebiscites were passed, but the process by which
an individual could be determined to be sacer remains murky. The phrase populus
iudicauit is ambiguous. Cantarella takes it to mean that the status of sacer was the result
of a judicial procedure,
26
but iudicare can mean either to judge, try, or decide (a case) or
to decide formally or officially, decree; (esp w pred acc) to declare (a public enemy),
27
and
some scholars believe that Flaccus is wrong and there was no trial or even declaration of
state. Rather, the homo sacer became such automatically by his transgression.
28
In Flaccus,
the older, quoted material contains no indication of a trial and it has been suggested that
the reference to judicial procedure is a modernisation on his part.
29
I suspect that Flaccus
Agamben and the Roman Republic 37
24
Agamben (n 9) 84.
25
The consecratio of parent-beaters, those who removed boundary stones, and patrons who defrauded clients
are in the XII Tables; Bennett (n 19) 6. The antiquity of such concepts is lost to time, though the XII Tables
themselves, some of our earliest material, are traditionally dated to 451 BCE, after the traditional date of the
first plebeian secession in 494 (Oxford Latin Dictionary, PGW Glare (ed) (Oxford University Press, 1982)).
Their wording is thought to have been revised at a later stage, and the traditional dates are unreliable; see
Michael H Crawford (ed), Roman Statutes. Bulletin of the Institute for Classical Studies Supplement 64, 2 vols
(Institute of Classical Studies, London 1996) 2.571.
26
Cantarella (n 18) 296.
27
OLD (n 25) 1 and 4.
28
Magdelain (n 17) 569.
29
Fugier (n 15) 238 and 245 n 146.
specification of popular adjudication in the form of a trial is misleading for the Roman
states historical ability to exclude citizens under the Republic, but rather reveals an
attempt to regularise in Augustan times a practice viewed as problematic.
30
The difference
between a regular trial, a declaration of state, and extra-legal judgment reveals a crucial
slippage between legal adjudication and political expediency.
31
The century of civil war leading up to the Republics demise is marked by state
violence against citizens without trial, precisely in exceptional circumstances where the
law is insufficient to protect the state. Historical events show a paradigm of the states
capacity to exclude citizens. This was done on political grounds with questionable
legality.
32
The execution of the Catilinarians is a prime instance. The recurrent pattern
of bringing to trial or sending into exile the man responsible for state killings after the fact
shows that the legality of such political actions was disputed.
One of the central questions is the extent to which an official declaration is necessary
for a citizen to be excluded from state protection. Is consecratio the result of an actuating
speech act or simply a state of being that comes about under certain conditions? If a
declaration is necessary, who is authorised to make it? At stake in these questions is who
decides, a central question for sovereignty. The popular origins of political consecratio
make the homo sacer less a sign of sovereign power imposed from above than a site of
contestation between popular and authoritarian forms of government.
A further difficulty with Agambens homo sacer is that the Romans do not talk about
state violence in these terms, yet they follow to a great, though imperfect degree the
pattern he outlines. I do not think Agamben is mis-using Flaccus category, but rather
that the Romans of the late Republic found the idea of consecratio archaic. The period
under study gave rise to systematisation in all cultural fields, from scholarship to the law.
33
As we will see, there are a variety of displacements in language or gesture that occlude the
38 Law and Humanities
30
In the aftermath of Caesars assassination, Brutus wants the fate of citizens who have fought against the
state (in rem publicam) without being killed (meaning the Antonians) to be a judgment of state, but leaves
open whether the Senate or the people should decide: senatus aut populi Romani iudicium esse de iis ciuibus
qui pugnantes interierunt (Cicero Ad Brutum 11 [1.4.2]). Although he states clearly the difference between
the Senates ability to advise and the peoples to command (quod enim nondum senatus censuit nec populus
Romanus iussit, ibid), he does not assign weight to one method over another. I thank Joy Connolly for this
reference.
31
In any event, the regular procedure for situations where there was complaint that citizens were put to death
without trial is a constitutional conundrum: the establishment of an inquiry (quaestio) by decree of the
senate rather than a trial by the people (iudicium populi) in assembly (comitia centuriata); see Lintott (n 10)
1616.
32
Magdelain (n 17) 564 comments on the lack of crimes dtat in the XII Tables, and assigns the reason for
this to the fact that such crimes were left to the discretion of the magistrates; see also p 566. Legislation de
ui is late, attested at the earliest in 78 BCE: Andrew M Riggsby, Crime and Community in Ciceronian Rome
(University of Texas Press, Austin 1999) 79.
33
Claudie Moatti, La raison de Rome (Seuil, Paris 1997); Bruce W Frier, The Rise of the Roman Jurists: Studies
in Ciceros pro Caecina (Princeton University Press, Princeton NJ 1985).
category to themselves, though it leaves traces. What they were aiming for, I think, was
judicial regularity.
THE SENATUS CONSULTUM ULTIMUM,
THE MOS MAIORUM, AND CONSENT
The right of custom is thought to be that which, through the consent of all, age has approved
without the law.
34
For Cicero, consent is crucial to the states ability to intervene with a life or death decision
on citizens in the state of exception. During the Catilinarian conspiracy (63 BCE), Cicero
argues that the Catilinarian conspirators have lost their citizen rights as enemies of the
state. He uses the Gracchi as an exemplumin support and these arguments are formative
for later accounts of the Gracchi, though Tiberius death in fact took place 70 years earlier.
His legal arguments, however, run up against popular will during and after the conspiracy.
The question of what to do with the conspirators is framed in Ciceros near
contemporary orations, which were revised for publication after their delivery, as a
deliberation made according to three standards: customs of the ancestors (mos maiorum),
the law, and popular consent.
35
Ciceros first Catilinarian Oration before the Senate opens
with the conundrum that he as consul has been authorised by the SCUto do whatever is
necessary to preserve the state, yet he hesitates to use these exceptional powers even
though he cites a host of precedents, including the Gracchi, for killing citizens deemed
internal enemies.
36
The reason for his hesitation is the lack of consent: Then finally you
will be killed when no one so unconscionable, so lost, so similar to you will be able any
longer to be found who does not confess that this was done rightfully.
37
Custom and the
law can only be brought to bear on the situation according to the principle of right, which
cannot be determined by the magistrate, here the consul, in isolation from public opinion.
Cicero does not use sacer of the Catilinarians, much less homo sacer, so it is not so
much Flaccus definition of this figure that is relevant as Agambens larger point that
power of life or death over citizens inheres in sovereignty. The question is whether the
Catilinarians, citizens engaged in a conspiracy against the state, can be killed without trial
and without their killers becoming murderers. It is a legal question, but even more a
political one. The determination must be made in a political dimension in relation to
custom and the law. Schmitts narrow criteria for sovereignty should allow us to ascertain
where sovereignty is located on the basis of who decides. On the one hand, the law has
Agamben and the Roman Republic 39
34
Cicero De inuentione 2.22.67, discussed in Moatti (n 33) 32.
35
For the relation of custom to the law see Lintott (n 2) 67.
36
Cicero Cat 1.34.
37
Cicero Cat 1.5.
been suspended in that citizens cannot ordinarily be put to death without trial. The
decision on this state of exception resides in the Senate in that it has passed the SCU.
38
However, Flaccus formulation of the process by which the homo sacer is determined turns
out to be relevant after all if we interpret his phrase populus iudicavit not as a legal
determination in a popular court, but rather as a moral determination taking place
outside the formal structures of the law. Cicero feels that his hands are tied until people
rather than the peoplejudge the act of putting Catiline and his like to death as just.
Extraordinary actions under the state of exception sponsored by the Senate cannot be
regarded as valid, even if legal, if they lack popular support.
Several strands need untangling here in the interplay between the legal and the
political in the decision about the life of the Catilinarians: the paradoxical status of the
citizen deemed a hostis (enemy) in being both internal and external to the state; the
ambiguity of whether the SCU actually suspends the rule of law and whether it is in fact
a state of exception; the role of custom, figured by the deployment of exempla, in Ciceros
attempt to win consensus. In all of these, the law and consent alike are constraining forces
on political decisionism, so that sovereignty in Schmitts sense is diffused.
Cicero describes Catiline using language whose paradoxical nature revolves, like
Agambens analysis of the homo sacer, around the breakdown of the inside/outside
distinction: he is the leader of the enemy within the city walls.
39
As an enemy, the consul
orders him to leave the city.
40
Cicero immediately takes the order back and softens it to
persuasion, to exile, a retreat indicating the constraints he is under, but his initial language
reveals the force of the cultural pattern he wants to deploy. This paradox climaxes in
words that, like sacer, convey religious awe. Catiline has in fact left the city by the time
Cicero gives his second oration before the Roman people when he reassures them: Now
no harm will come to the city walls themselves within the city walls by that portent
[monstrum] and prodigy.
41
Cicero elsewhere dilates on the paradox that was Catiline
under the rubric of the monstrum: and I think there has never been such a freak
[monstrum] on earth, conflated from natural pursuits and desires so contrary and diverse
and fighting among themselves.
42
The conventional portrait of Catiline as self-
contradictory supports this rhetoric.
43
Livy also uses monstrum of Spurius Maelius, one
of the exempla Cicero cites in his argument that Catiline should be put to death.
44
The
40 Law and Humanities
38
Thomas N Mitchell, Cicero and the Senatus Consultum Ultimum (1971) 20 Historia 4761; discussed
below.
39
Cicero Cat 1.5.
40
Cicero Cat 1.13. Other passages in the Catilinarians expressing the paradox of the enemy within are 1.10,
15; 2.17, 28; 3.1617, 19, 28; 3.6; 4.16, 18; intus est hostis (the enemy is within) 2.11; civis vs hostis (citizen
vs enemy) 2.12, 27, 29, 3.2122, 2425, 4.10, 13, 15, 22.
41
Cicero Cat 2.1.
42
Cicero Pro Caelio 12.
43
Cicero Cat 1.26; Sallust Cat 5.
44
AUC 4.15.78; Cat 1.3.
commentators argue that Cincinnatus call for the expiation of the monster by pulling
down his house implies that Maelius was sacer, that is, an object of religious awe.
45
The
monstrumand the homo sacer should not be made equivalent in any technical sense, but
they inhabit the same ideational space; they are paradoxically inside and outside the state
simultaneously.
Livy identifies two ways in which a man could become sacer, the first through aspiring
to regnum (rule), the second having to do with the law of tribunician sacrosanctity
treated by Flaccus. Along with the law of appeal, a law was passed so that the head, ie, life
and possessions of anyone who plotted to seize kingship became sacer.
46
Tribunician
sacrosanctity also targeted both the life (caput) and possessions (familia) of the one who
harmed the tribunes (as well as the aediles and decemviral judges).
47
The person who
attacked a tribune became sacer, so that any one who dispatched the offender was exempt
from the ordinary penalties and taboos connected with causing death.
48
Both
mechanisms protect republican government, the latter through making sacer anyone who
attacked a tribune, the peoples representative, and the former through protecting the
state itself against devolving into kingship. Both laws guarantee the peoples role in
government.
49
The word regnum is etymologically related to rex (king) and it is
specifically this sort of rule that the Romans perceived as a threat.
50
Consecratio bears a
relation to the SCU: both come to be used against regnumand are mechanisms designed
to protect the state, the one setting the threatening person outside the law, the other
suspending the law temporarily so that the magistrates would not be restrained in treating
the threat. The two interact in a complex way, as we will see below, in the narratives of the
Gracchi.
Sallust explains the SCU retrospectively in greater detail than Cicero, who leaves the
powers granted by the Senate to the magistrates vague.
51
Since the SCU had been used
several more times by the composition of Sallusts monograph, it could have developed
greater legal specificity in the meantime, though, as Agamben points out, all scholars
Agamben and the Roman Republic 41
45
RM Ogilvie, A Commentary on Livy Books 15 (Oxford University Press, 1965) 550; Wilhelm Weissenborn
and HJ Mller, T Livi Ab Urbe Condita, 12th unchanged edn (Teubner, Berlin 1965) at Livy 4.15.7. The
monstrumis an emblem of the paradoxes of civil war: Cicero of Mark Antony (Philippics 13.49); Horace of
Cleopatra (Odes 1.37.21), who was the foreign enemy at Actium; Michle Lowrie, Horaces Narrative Odes
(Oxford University Press, 1997) 1523. In each case, there is a rhetorical attempt to get or keep the enemy
out of the city.
46
Livy 2.8.2. Weissenborn and Mller (n 45) comment ad loc that this person is excluded from all religious,
political, legal relations.
47
Livy 3.55.67.
48
Ogilvie (n 45); Livy 3.55.5.
49
Albrecht Koschorke emphasises the popular origin of these laws (work in progress).
50
Earl (n 2) 75 notes that regnumwas used practically as a charge by aristocrats against their fellows acquisition
of too much power.
51
Neither of these citations adds the conventional appellation ultimum; the decree was first characterised in
that way by Julius Caesar, De bello civili 1.5.3, and historians use it as a convenient moniker.
agree on the fact that the SCU has no positive content.
52
Cicero characteristically first
articulates the SCU by means of an exemplumwithout specifying its legal status:
We have a decree of the senate against you, Catiline. The Senate once decreed that Lucius
Opimius the consul see to it that the state receive no harm: no night intervened: Gaius Gracchus
was killed
53
Sallust supplies the desired legal information:
And so, the Senate decreed a thing which it usually does in atrocious business, that the consuls
see to it that the state receive no harm. This greatest legal power (potestas) is allowed to the
magistrate by the Senate according to Roman custom: to prepare an army, to wage war, to
coerce allies and citizens in all ways, at home and abroad to have the highest military command
and judicial jurisdiction; otherwise, without the order of the people, the consul has the right
to none of these things.
54
Cicero implies that power over life or death is granted to the consul without recourse
to a legal decision by the people. According to Sallust, the SCUis a legal power (potestas)
grounded in custom, which grants the magistrate exemption from judicial review by the
people in taking all measures necessary to protect the state.
55
Legal historians have
struggled with the implications for sovereignty in these passages. Thomas Mitchell, for
instance, argues that the SCU did not grant the consuls this power independently of the
Senates advisory power (consilium); the Senate therefore exercised sovereignty in the
sense of making the decision, while the consuls job was to implement their decisions.
56
Andrew Lintott disputes the conclusion that sovereignty was located even temporarily in
the Senate and identifies the people as the sovereign authority, although he admits that
an extreme interpretation of the SCUcould be liable to representation as an infringement
of popular sovereignty.
57
He believes that Cicero over-emphasises senatorial power and
sees no justification for weighing the Senates advisory power over the consuls executive
power.
58
This objection challenges Schmitts location of sovereignty in the decision-maker.
42 Law and Humanities
52
Agamben (n 12) 50.
53
Cicero Cat 1.34.
54
Sallust Cat 29.23.
55
Lintott (n 1) 156 specifies that imperium, the supreme executive power, was not conferred on the magistrates
by the SCU, but that instructions were given as to its use.
56
Mitchell (n 38) 5860; he analyses earlier disagreements about the SCU(4951) as dependent on two views:
that of Mommsen, who thinks that the senatus consultum created a state of war which empowered the
magistrates to conduct acts of war, and that of Last, whose view was that the Senates role was advisory but
conferred no new authority on the consuls and did not even purport to remove any of the restrictions
which were imposed by statute on the use of their imperium (49). Mitchells addition is to show that Cicero
is consistent in believing that the Senate retained supreme decision-making ability and that the magistrates
were designated to carry out their decisions. See also Lintott (n 10) 14974.
57
Lintott (n 2) 40 with nuances; Lintott (n 10) 173.
58
Lintott (n 2) 9293.
More broadly, however, Lintott sees the struggle in the scholarship on popular versus
senatorial sovereignty as arising from the power struggle at Rome.
59
Agamben analyses the SCU in relation to the broader category of the iustitium, a
court holiday which can be generalised into the suspension of the law in a state of
exception; it is a kenomatic state, an emptiness and standstill of the law in which acts are
committed in a judicial void.
60
I think that Sallusts identification of the SCUas granting
potestas, the legal power of a magistrate, is a later attempt, like Flaccus addition of populus
iudicavit, to regularise a much disputed question: whether acts committed during the
SCU could be prosecuted. Cicero, like Scipio Nasica, who killed T Gracchus, went into
exile for putting the Catilinarians to death, and Opimius, who authorised the killing of
C Gracchus, was brought to trial. These acts should not be dismissed as mere political
retaliation; they are symptomatic of the confusion between legal and political spheres
during a state of exception.
61
Although Scipio died in exile, Cicero was brought back and
Opimius acquitted. The vacillation between condemnation and acquittal reveals the
difficulty of thinking through the legality of the state of exception. Agamben overstates
the judicial void; it is rather a case of judicial indeterminacy. Bringing those responsible
for the killings to trial after the fact re-establishes the rule of law after its suspension.
Sallust is on the mark in recognising that the SCU operated according to Roman
custom. Although the SCUitself dated only to the Gracchan period, extraordinary actions
taken during a state of exception belong to the sphere of extralegal consent outlined by
Cicero and quoted by Moatti above. The political difficulty for the likes of Cicero is that
consent granted at a point of crisis may be revoked retroactively. Consent and the mos
maiorumlack the constancy, at least in principle, of the law.
So far, the SCU fits the state of exception as analysed by Agamben, but in a
government without a written constitution, where power was grounded in custom rather
than law, we may ask whether at Rome the development and application of the law was
not rather the anomaly. The violence of the century leading to the Augustan principate
is symptomatic of stresses on a system that was constitutionally and legally fluid.
62
Since
the SCUwas authorised by the Senate, which at this time did not have a law-making role,
but only an advisory capacity residing in its auctoritas, the legality of the SCU is not so
much questionable as irrelevant. Agamben presupposes that a structure of sovereignty is
Agamben and the Roman Republic 43
59
Lintott (n 2) 66.
60
Agamben (n 12) 50.
61
Mitchell (n 38) thinks that Clodius prosecution of Cicero, for which he was sent into exile, can be dismissed
as political manipulation. Clodius may not have found the best case against Cicero, but his prosecution is
symptomatic of the political struggle in this period over the law and the constitution. Lintott (n 10) 1968
provides an overview of Clodius political aims and emphasises in general that the Romans had difficulty
in achieving precision about extra-legal trials in a state of emergency (164).
62
Many of the disturbances revolve around economics: the attempted land reform of the Gracchi and debt
reform by Catiline. Caesar recognised that simple cancellation of debt was inequitable to the creditors (Civ
3.1) and that a more nuanced solution was needed.
already in place when he puts forward his analysis of it as residing both inside and outside
the law; his presumption is that this paradoxical relation is a surprise because we, in our
modern liberal democracies, regard the rule of law as being fundamental. The Roman
example may suggest rather a system where the law is supplemental rather than the other
way round. In a crisis, the Romans reverted to a more basic political arrangement: men
who had been entrusted with managing public affairs exercised judgment in both strong
and loose senses of the term. The state was less a codified entity than a set of practices:
res publica means the public affair. To that extent, the states power over its citizens
emerges even more starkly than in Agambens conception. The law is developed as a
restraint over and above that provided by the peoples ability to withhold consent.
That Cicero begins his justification for killing Catiline with the exemplary actions of
the ancestors becomes more understandable on this interpretation. Where we might begin
by addressing the law, he foregrounds the exempla of Tiberius Gracchus and Spurius
Maelius before coming to the SCU. He takes it for granted that custom precedes the law,
and it is only after bringing up the decree that he moves on to instances of state-sponsored
killings covered by the SCU, such as that of C Gracchus and L Saturninus. This trajectory
is partly historical, as the SCUwas not an existing mechanism in the earlier instances. To
cope with the threat of Spurius Maelius, a dictator was appointed. Agamben discounts the
dictatorship as a true instance of the state of exception because, although the dictator
was granted extraordinary powers outside the rule of law, he was formally appointed to
a specific magistracy that therefore fell within the purview of the putative constitution.
63
Agambens exclusion is excessively formalistic in that the dictatorship was a regularised
irregularity, which is what the SCUbecame; neither can be excluded from the mechanisms
for dealing with the state of exception on the grounds of regularity, particularly since
Agambens thesis is that the exceptional becomes regularised. Further analysis of the
dictatorship is needed, but such an undertaking exceeds the scope of this paper.
The case of the Gracchi is interesting from both a narrative and a legal perspective
because the same story plays itself out with crucial differences. For Tiberius, sacer is a
dominant theme, while for Gaius it is more the law. They represent two sides of the same
coin, namely sovereign power over citizens life. Both the Senate and the People made
(failed) attempts to ensure the situation with Tiberius would not repeat itself by making
interventions in the law. Legal development occurred as a response to what we might call
acts of sovereignty, but was insufficient to contain them.
44 Law and Humanities
63
Agamben (n 12) 47.
THE SOVEREIGN ACT: TIBERIUS SEMPRONIUS GRACCHUS
Plutarchs biography of Tiberius Gracchus lets us trace the complexity of the category
sacer, which pervades the story as a latent but recurring issue. By contrast, Appians (also
Greek) account of the same events shows no interest in this aspect.
64
Plutarch wrote his
biography of the Gracchi some time in the late first century or early second century CE
a full century after Augustus. His value as a source is less historical accuracy than
ideological transmission.
65
He provides an imperial, post-Augustan reflection on a man
who died by an act of sovereignty.
66
The basic story is that Tiberius and Gaius Gracchus were from a noble family with a
history of public service.
67
After proving his reliability in warfare, the older brother,
Tiberius, became tribune in 133 BCE. His main attempt at legislating was to propose land
reform, whereby the rich encroachers on the public land, which was supposed to be rented
out to the poor, would return the land to the poor and receive compensation for the
benefit they were losing.
68
When the aristocrats resisted, they enlisted the support of
Tiberius colleague in the tribunate, Octavius, who postponed bringing up the
legislationthe voting urns were even stolen. Tiberius reacted by breaking the law and
ousting Octavius from office. When his legislation failed to move forward, he attempted
to stand for a second tribunate in order to have more time to carry it through. This action
was not illegal, but it was against the mos maiorum, and voting was blocked. These
unconventional measures aroused public indignation and, during his second attempt at
standing for election to a further tribunate, led to violence on the Capitoline hill, in the
course of which he and 300 of his followers were killed.
Many details of this story touch on the concept of sacer. As tribune, Tiberius was
himself sacrosanct: according to the plebeians oath when they first seceded, anyone who
offended their representative was considered a homo sacer. The difficulty with Tiberius
Agamben and the Roman Republic 45
64
On the problems with both Plutarch and Appian as historical sources, see excerpts from Meyer, Gelzer and
Fraccaro, as well as Badian, in John M Riddle (ed), Tiberius Gracchus: Destroyer or Reformer of the Republic?
(Heath, Lexington MA 970). Plutarch is sympathetic to the Gracchi, while the Roman sources tend to
emphasise the threat to the state, eg, Velleius Paterculus: he mixed the greatest with the lowest things and
led the state into abrupt and headlong peril, 2.2.3.
65
Earl (n 2) 1034; Plutarch likes to dramatise (8285).
66
The understanding of state killings became more codified by the time of Augustus. See eg Lintott (n 10) 166
7, 184 on Spurius Maelius; Earl (n 2) 107 suggests that the accusation of regnum against Tiberius may be
post-Sullan.
67
Detailed background in Earl (n 2) 1, Factio.
68
Earl (n 2) 3040, 94 sees the impetus for land reform in the need to supply the legions with more soldiers,
who had to be land-owners, and in aristocratic competition for clientage. Robert Horvath, The Origins of
the Gracchan Revolution (7 Studies in Latin Literature and Roman History) (Collection Latomus, Brussels
1994) 93116 critiques this view and argues that these reforms form part of a larger movement of judicial
rationalisation sparked in part by economic expansion in the first half of the second century. My interest is
in the story as told rather than the history as reconstructed.
Gracchus is that, while himself being sacrosanct, he also did things that made him sacer.
Like Maelius, he was a popularis: instead of grain distribution, he championed the people
against the wealthy in the distribution of access to public lands. Although this annoyed
the Senate, it was only once he began to commit illegal actions that serious problems
began. In the interest of his land reforms, he ejected his fellow tribune Octavius from
office, an act Plutarch characterises as illegal and unseemly
69
and the author of the de
viris illustribus as setting a new example (nouo exemplo).
70
Titus Annius later accused him
of dishonouring his holy and sacrosanct colleague.
71
Although Plutarch does not say so,
the logical conclusion is that Tiberius himself became sacer, and I suspect that this would
have been clear to a Roman reader. In addition, he was accused of regnum, so that,
according to Livys criteria,
72
he became doubly sacer. When he wanted to distribute
Attalus Philometors wealth to those who had received the public lands, he refused to
submit the proposal to the Senate. His neighbor Pompeius rose and said that Eudemus
of Pergamum had presented Tiberius with a royal diadem and purple robe, believing that
he was going to rule Rome as king.
73
Tiberius himself made a speech arguing that tribunes
who went against the will of the people removed themselves ipso facto from office,
74
meaning that Octavius had lost his sacrosanctity, and made a parallel with kingship
supported by an exemplum: that office was also consecrated to the divine,
75
but Tarquin
had been expelled for wrong-doing. His argument against his fellow tribunes
sacrosanctity, however, did not bode well for his own.
Plutarchs narrative of Tiberius death allows for a reconstruction of the conflict
between his sacrosanctity and his becoming sacer.
76
Tiberius did not encounter violence
until he ran for office a second time, an unprecedented act though apparently not literally
illegal.
77
The elections met with disturbance and, in the face of multiple bad omens,
Blossius told Tiberius that he must persist with the elections otherwise his opponents
would accuse him of playing the tyrant,
78
ie, he would be at risk of being declared sacer.
The gesture that set off the violence was also ambiguous. A senator, Fulvius Flaccus, told
46 Law and Humanities
69
Plutarch TG 11.2.
70
de viris illustribus 64.4.
71
Plutarch TG 14.4. Appian (Bell Civ 1.13) records that Tiberius opponents complained after he ejected
Octavius from office that he had done violence to a holy and inviolable office.
72
Livy 2.8.2; 3.55.67.
73
Plutarch TG 14.23.
74
This argument is parallel to Ciceros that because of his actions, Catiline could be treated as a public enemy
before he was officially declared such by the Senate (Cat 1.2829).
75
Plutarch TG 15.4.
76
Appians account (Bell Civ 1.717) is more straightforwardly political and the sacer motif is virtually absent.
77
Appian Bell Civ 1.14 says that the rich claimed that it was illegal, but the tribune in charge of the voting was
in doubt. Ernst Badian, Tiberius Gracchus and the Roman Revolution in Aufstieg und Niedergang der
rmischen Welt 1.1 (W de Gruyter, Berlin 1972) 722 says that we simply cannot know whether re-election
was illegal.
78
Plutarch TG 17.4.
him while the voting assembly was going on that a party of rich men was planning to kill
him. Tiberius put his hand to his head as a sign to some who could not hear that his life
was in danger. His opponents interpreted this gesture as a call for a crown. If his life was
in danger, it was a violation of his sacrosanctity; if he was calling for a crown, he became
sacer by aspiring to regnum. Scipio Nasica, the pontifex maximusa fact Plutarch
mentions only after Tiberius deathcalled on the consul, Mucius Scaevola, to protect the
state and put down the tyrant,
79
essentially asking the consul to declare Tiberius sacer
and to declare a state of emergency.
80
Scaevola refused to use force and kill any citizen
without trial.
81
In this formulation, the consul keeps both sacrosanctity and consecratio out of the
question: he does not call Tiberius sacrosanct, but rather treats him as a citizen who would
need to be tried, ie, not a homo sacer. He further attempts to keep the dispute within the
law and says that if the people vote anything unlawful under Tiberius influence, he would
not regard the vote as bindinghe negates the Greek word for sovereign: . The
legal argument, however, loses out to politics. Nasica uses a similar argument about the
consul to that used by Tiberius about his fellow tribune: that he is betraying the state. He
then calls on those who would protect the law
82
to follow him, covers his head with his
toga, the gesture of a priest making a sacrifice, and leads the senators to slay Tiberius and
his supporters using sticks and stones on the Capitoline by the temple of Jupiter.
83
Since
anyone who violated tribunician sacrosanctity became Iovi sacer (sacred to Jupiter),
84
the
locus of the death has significance.
Tiberius resists becoming sacer. Since Plutarch does not address the issue explicitly,
we cannot know whether this had to do with his sacrosanctity. Can someone who is
sacrosanct become sacer? What Plutarch and Cicero both emphasise, however, is the lack
Agamben and the Roman Republic 47
79
Plutarch TG 19.3.
80
Nasicas formulas evoke the phraseology of the SCU: see P Fraccaro, Studi sullet dei Gracchi (LErma di
Bretschneider, Rome 1967 [1914]) 1789. Marianne Bonnefond-Coudry, Le Snat de la rpublique romaine
de la guerre dHannibal Auguste: pratiques dlibratives et prise de dcision (cole Franaise de Rome, Rome
1989) 243 and 540 n 213 takes the language too literally, though the note shows that she realises that the SCU
only came into effect against Gaius Gracchus. Lintott (n 10) 166 calls this episode an abortive forerunner
of the ultimate decree.
81
Plutarch TG 19.3. Earl (n 2) 1012, 11718 traces Scaevolas political allegiances: he is part of the group
supporting Tiberius legislation, but Tiberius actions put him in an uncomfortable position.
82
Plutarch TG 19.3.
83
Appian (Bell Civ 1.16) fails to understand the events religious implications and is puzzled by Scipio Nasicas
pulling his toga over his head, but the gesture clearly signals sacrifice (eg Valerius Maximus 1.1.11). Badian
(n 77) 7256 takes the gesture as a symbolic attempt to authenticate the consecratio and emphasises the
auctoritas of the high priest (724). Lintott (n 2) 183 sees Nasicas action and gesture as a bridge between
earlier tyrant-slayings and the later SCU. Earl (n 2) 119 n 1 comments that the Latin tradition gives the
toga gesture a military slant since the intimation of sacrifice could not stand up to serious examination,
still less be allowed to form a precedent. The difference between the Greek and Latin accounts supports the
theory that the homo sacer underwent cultural repression in historical times at Rome.
84
Livy 3.55.7
of official sanction for this deathwhat we find in Verrius Flaccus as the judgment of the
people. Appian even remarks that it is astonishing in such fearsome circumstances that
they did not appoint a dictator.
85
Plutarch comments on the lack of justice, or a decree
(such as the SCU), or the participation of a magistrate.
86
Cicero says something peculiar
about Scipios status as the killer because he calls him both pontifex maximus and privatus
in the same sentence: Publius Scipio, the highest priest, killed Tiberius Gracchus as a
private citizen, even though he was moderately disturbing the state of public affairs.
87
I
suspect that the conjunction of the priest and the private man reveals confusion about the
category of the homo sacer in general and about Tiberius status in particular. Until an
authorised body, such as the Senate or the consul, made a formal declaration, Tiberius
resisted becoming sacer, even though there were clearly grounds for his becoming so.
There is a clear conflict between the state of exception and the application of the law.
When Scipio called on the consul to save the state, Scaevola rather clung to the rule of law
by saying that he would not use force. Valerius Maximus epigrammatic account makes
the stakes even more clear than Plutarchs: Scipio argues that by following the law (iuris
ordinem), Scaevola is destroying Roman rule together with all the laws (cum omnibus
legibus Romanum imperium corruat).
88
Scipio verbally deposed the consul by declaring
that he was betraying the state: he himself made the sovereign decision. Cicero and
Valerius Maximus emphasise that he was privatus because he was not a magistrate, and
this would accord with Agambens point that anyone could kill the homo sacer. But in the
face of the consuls resistance, Scipio took a more archaic route to making Tiberius sacer,
and that was via sacrificium (sacrifice, etymologically making something sacer). As
pontifex maximus, he covered his head with his toga, the gesture of a sacrificing priest, and
instigated the sacrifice.
There is dissonance in this story between becoming sacer and sacrifice, which Verrius
Flaccus makes antithetical.
89
I would argue that the trappings of sacrifice indicate not a
literal human sacrifice, but a symbolic one; the sphere of the sacred is needed to make a
sacrosanct tribune sacer. The priest did not actually perform the killingPlutarch gives
the name of the two men who struck the first blows, one of whom was a tribune, who was
therefore violating the sacrosanctity of his colleague.
90
We might suspect that once Scipio
48 Law and Humanities
85
Appian Bell Civ 1.16. Badian (n 77) 724 n 162 says that Appians surprise is not as foolish as it is sometimes
made to appear: the office was in desuetude, but it was the only available precedent.
86
Plutarch Comp Agis et Cleo et Gracch 5.5.
87
Cicero Cat 1.3.
88
Valerius Maximus 3.2.17. The epigram smacks too much of the rhetorical training of Valerius times to be
authentic: Fraccaro (n 80) 179.
89
Badian (n 77) 725 recognises the difficulty here (especially n 167, where he cites Festus) and refrains from
attempting a logical solution: while direct immolatio was out of the question, he traces all the symbols that
point in that direction.
90
Plutarch TG 19.6.
as high priest had declared that Tiberius was sacer by covering his head, anyone could kill
him with impunity. However, since Plutarch also tells us that no iron was used in the
killing of Tiberius or his followers, but only wood and stones,
91
this would point rather
to sacrifice.
92
Disentangling homo sacer from sacrifice is less easy than Flaccus definition
would lead us to believe. The larger point, however, is that the sacred is useful as a category
in killing without trial and with impunity citizens perceived as threats to the state.
The subsequent accusations against Scipio show that responsibility for killing falls
not on the people who struck the blows, but on the person who authorised it.
Furthermore, the rhetoric of consecratio can backfire. Plutarch states that people called
Scipio accursed (ie sacer), a tyrant (which would make him sacer), and accused him of
violating, by the act of murdering an inviolable and sacred person (ie sacrosanct, violating
whom would make him sacer), the holiest and most awe-inspiring of the citys
sanctuaries.
93
The Senate sent him to Asia to protect himan exile with exactly the same
result as if he had actually been declared sacerand he went even though he had duties
at Rome qua pontifex maximus.
94
The logic of the homo sacer in Agambens sense operates
in both Tiberius and Scipios cases even though it does not adhere to the strict
formulation of Verrius Flaccus.
The exceptional political situation and the metaphoric nature of the sacrifice imagery
both point to the insufficiency of the law. The political crisis, which could not be taken
care of internally, resulted in a metaphorical sacrifice. Outside the states protection,
citizens are killed without trial. Badian remarks: Again, the weakness (or the strength) of
the Republic is apparent: there were no procedures to deal with an emergency such as
this. The tribune who occupied the Capitol (like the tribune who tried to burn it down)
was simply outside political experience or regulation.
95
Appians remark that a dictator
should have been called for and Scipios verbal deposition of the consul show the crisis
in sovereignty in situations not covered by the law. The man who filled the legal void
came, as privatus, from outside the state. The solution, a metaphorical sacrifice by the
pontifex maximus, represents a way of placing citizens outside state protection. The
throwing of dead mens bodies into the Tiber in lieu of proper burial similarly marks
them as being outside state protection.
Agamben and the Roman Republic 49
91
Plutarch TG 19.6.
92
Badian (n 77) 726 reads Plutarchs explicit statement on the lack of iron in the killing in light of the Roman
exclusion of iron from sacrifice.
93
Plutarch TG 21.3.
94
Plutarch TG 21.23. Howard Hayes Scullard, From the Gracchi to Nero (Methuen, London 1959) 31: the
Senate decided that, since Nasicas continued presence in Rome would remind men of his violation of the
sacrosanctity of a tribune, he was better out of sight: he was therefore sent on a commission to Asia, where
he soon died. The implication is that the people considered Nasica sacer for violating tribunician
sacrosanctity.
95
Badian (n 77) 724 (emphasis added).
Just as in Livys account of Sp Maelius, where the word sacer does not occur, so that
the dynamics of the cultural pattern are not explicit, the extent of the cultural symbolism
of sacrifice escapes Plutarchs understanding. Badian suspects that Plutarchs transmission
of some of the sacrifice imagery derives from a source nearly contemporary with the
events themselves.
96
This information is recorded, but not commented on. Since the
sacrifice was metaphoric and not literal (the priest did not kill the victim; many others
were killed in addition; the various religious gestures fail to amount to a ritual), the
consecratio operates as a latent cultural figuration.
According to Verrius Flaccus, the person who kills the homo sacer is immune to
prosecution for homicide. In the instances we have examined, there is a problem, which
is that the person who kills a citizen without trial suffers consequences. In the Maelius
narrative, Servilius Ahala went into exile, as did Scipio Nasica, as will Cicero himself. The
man responsible for killing the monstrum himself ends up excluded from the state. It is
an act of sovereignty to kill citizens without trial, but the act has neither narrative nor legal
finality.
THE EXEMPLUM VERSUS THE LAW: GAIUS SEMPRONIUS GRACCHUS
In Plutarchs narrative, Gaius story is parasitic on that of Tiberius. This redoubling is
paradigmatic, since the story of political killings repeats itself with variation until
Augustus. Repetition is the logic of the exemplum. An important difference, however, is
that both the Senate and Gaius make interventions in the law so as to strengthen their
claims on legitimacy. Gaius passed legislation making it illegal to decide on capital cases
without adjudication by the people. The Senate devised the SCUin a moment of crisis.
97
The exemplumand the law both serve as tools for political competition.
Plutarchs assessment of Gaius is that he promulgated laws with the purpose of
pleasing the plebs and dissolving the Senate.
98
The events leading to his death revolved
around the attempt to dissolve his legislation. Some of these laws changed the
organisation of the state, ie the constitution. These extended citizenship to the Latin
allies, transferred jurisdiction over certain court cases from the Senate to the equestrian
class (specifically extortion), prevented someone deposed from office by the people from
holding subsequent office (a law targeting the tribune Tiberius had deposed), entailed
land reform, reform in the treatment of the military, the building of roads, and the
establishment of colonies. Generally, Gaius was relocating power outside the Senate, so
50 Law and Humanities
96
Badian (n 77) 726.
97
On the two legal innovations see Lintott (n 10) 167, 1834. The Sullan proscriptions are a later attempt to
legalise the killing of citizens: see Arthur Keaveney, Sulla: The Last Republican (Croom Helm, London 1982)
15960.
98
Plutarch CG 5.1. Appian BC 1.21: he plotted against the Senate.
that Cicero could claim that the greatest matters were being conducted by the will of the
multitude.
99
For our narrative, the most important of the Sempronian laws concerned capital
casesclearly relevant both to his brothers death and to his own.
100
Gaius harped on
the fact that his brother and friends were killed without trial and their bodies thrown
into the Tiber against the mos maiorum. Rather, it was customary () if anyone
was summoned on a capital charge and did not answer summons, for a trumpeter to go
to the mans door in the morning and summon him; the judges would not vote on his case
before this had been done, so cautious and guarded were they about cases.
101
Cicero tells
us that Gaius passed a law that capital cases could not be judged without the peoples
order.
102
This gave greater specificity to a similar law already in the Twelve Tables. There
are two aspects to this law: a legal judgment must be made, and the people, not the Senate,
must make it. The law clearly is an attempt to curb the autocratic violence that destroyed
his brother and would in turn destroy him. Gaius uses the law to restore custom.
The threat to the established ways of doing things, however, seems to have been
perceived more in personal than in legislative terms. The laws in themselves largely
survived even though their author did not.
103
Plutarch tells us that during Gaius second
tribunate, the Senate desired more to do away with him than to oppose his measures.
104
He had more of a reputation as a rabble-rouser than Tiberius, so his death has more the
appearance of raw political conflict. This personal conception of politics was a
fundamental weakness of the Roman Republicpower was invested in men more than
in their officesand is one of the reasons why it is necessary to understand the structures
of the state in terms of the treatment of individuals.
In Plutarch, when Opimius as consul set about trying to dissolve Gaius legislation,
the events leading up to the violence against Gaius bear the traces of Tiberius death with
amplification and some signal differences. Gaius, who had been elected twice to the
tribunate (for 123 and 122 BCE), was not re-elected for a third tribunate and it was in the
following year (121 BCE) that he was killed. What had been considered against custom
Agamben and the Roman Republic 51
99
Cicero De amic 41. Bonnefond-Coudry (n 80) 75960 compares the conservative polemic against the
Gracchi to the actual reforms and concludes that the rhetoric of overturning institutions (eg Cicero Leg
3.1920) is exaggerated and that the essential function of the Senate, to direct affairs, remained untouched.
She offers Valerius Maximus statement about Tiberius as an instance of pure, conventional polemic since
it transfers accusations generally levelled against Gaius to his brother (when Ti Gracchus in his tribunate
openly kept saying that with the Senate killed, everything ought to be run by the plebs, 3.2.17).
100
I follow the account in David Stockton, The Gracchi (Oxford University Press, 1979) ch 6, The Legislation
of Gaius Gracchus. He discusses (122) the lex ne quis iudicio circumveniatur in conjunction with the capital
cases rather than as conventional with the de repetundis legislation, and demonstrates a healthy agnosticism
in the face of these fragmentary and controversial laws.
101
Plutarch CG 3.34.
102
Cicero pro Rab perduell 12.
103
Stockton (n 100) 2005.
104
Plutarch CG 9.1.
for Tiberius was accepted for Gaius. The one had tribunician sacrosanctity when killed,
the other not. Two factions occupied the Capitoline, as they had for Tiberius. The murder
of Opimius servant Antyllius by Gaius supporters in the fray set in motion on both sides
responses directly determined by the events of 133 BCE.
105
Gaius supporters complained
about the Senates concern for Antyllius, since they laid him, an attendant, out in state,
while they murdered Tiberius Gracchus, a tribune, and threw his body in the Tiber. Gaius
was summoned to the Senate and he responded by joining armed followers on the
Aventine. Rebellion called for a state of emergency.
The Senates reaction this time was an attempt to regularise its response: it passed the
SCU (they voted and enjoined on Opimius the consul to save the state as best he could
and to dissolve the tyrants
106
). The accusation of regnum was an authorisation to kill
Gaius. The Senate suspended the law Gaius had designed to protect citizens under exactly
such circumstances by creating a state of exception. The constitutional advantage over
the situation as it had transpired with Tiberius is that the Senate controlled the act of
sovereignty. They kept the power to decide within their brief and authorised a magistrate
to take action, rather than letting a private person make the sovereign decision. A formal
indication of the constitutional difference between Tiberius and Gaius deaths is that in
the First Catilinarian, Cicero uses both as an exemplum, but separates them, precisely
because he also has the SCU. Gaius serves as a more direct parallel for killing Catiline
without trial.
The removal of Gaius and his supporters from the protection of the state is made
clear by their retreat to the temple of Diana on the Aventine Hill, just outside the city
boundary (pomerium), where the plebeians had regularly withdrawn in a body in the
course of the formal secessions which had occasionally punctuated their struggles with
the patricians in the very early Republic.
107
Although Stockton questions the extent to
which the historical associations of the Aventine and of the temple of Diana, the patron
goddess of the Latin League, affected the decision to withdraw to those particular places,
the need to go outside the boundaries of the city limits seems unquestionable. After failed
attempts at negotiation, Opimius attacked. Gaius fled and was killed either by a loyal
servant who then killed himself, or by his enemies who had to do away with the servant
because he was shielding Gaius with his body. Plutarch identifies the location of his death
as the grove of the Furies.
108
Before fleeing, Gaius prayed to Diana that in return for their
ingratitude, the Romans should never cease being slaves.
109
The prayer and the location
52 Law and Humanities
105
Plutarch CG 1314.
106
Plutarch CG 14.3.
107
Stockton (n 100) 196.
108
Plutarch CG 17.2. The author of the de uiris illustribus calls it the lucus Furinae (65.5), which Cicero takes
as being cognate with the Furies (de natura deorum, 3.46).
109
Plutarch CG 16.5.
of the death are narrative features that look to the next century of violence in Roman
politics.
It is nowhere explicitly stated Gaius became sacer, and his story does not ring the
changes on the theme as does Tiberius. An important difference is that he was no longer
tribune and therefore not sacrosanct.
110
Still, the Senates injunction to put down the
tyrants suggests the logic of consecratio. Like Tiberius, Gaius body was thrown into the
Tiber and he suffered the additional indignity of having his head severed: Septimuleius,
a friend of Opimius, filled it with molten lead, stuck it on a spear, and was paid its weight
in gold. The supporters killed along with them increased from 300 for Tiberius to 3,000
for Gaiusa literal amplificatioand they also were thrown into the Tiber.
111
The failure
to bury these bodies shows that they were considered to lie outside normal human affairs;
the selling of their property for the benefit of the treasury (publicari) is what happens to
a citizen who has lost his rights; and the subsequent cult that developed around the
Gracchi intimates divinity. Plutarch says that the people consecrated the places of their
deaths and made sacrifice there as at the shrines of the gods.
112
Gaius Gracchus can be analysed under the rubric of Agambens homo sacer to the
extent that he was excluded from the states protection, that he therefore became
vulnerable to being killed, and that his death was no sacrifice but had unspecified links
to the divine.
113
Verrius Flaccus provision requiring adjudication by the people was, as
discussed above, an attempt to bring the category within the law, particularly, as we can
now see, within the Sempronian law on capital cases. The point, however, is that the homo
sacer cannot be contained within the law but regularly comes up against it. The legitimacy
of state killing, even under the protection of the SCU, was again questioned: once
Opimius left office, he was brought to trial by a tribune, Publius Decius.
114
Although he
was acquitted, the challenge in itself shows that the legality of politically motivated
murders was disputed. One mans homo sacer is anothers citizen protected by law. Under
the state of exception, there is no legal way to make the determination.
Agamben and the Roman Republic 53
110
For a brief discussion of the differences between the deaths of Tiberius and Gaius Gracchus, see Badian
(n 77) 118.
111
Plutarch CG 17.5.
112
Plutarch CG 18.2. Elias Bickerman, Consecratio in Le culte des souverains dans lempire romain (Entretiens
19: 325) (Fondation Hardt, Vandoeuvres-Genve 1973) 8 insists on the difference between the choice of
objects of worship of private groups, such as here, and officially consecrated state cult.
113
Bad omens attend Gaius in his attempt to establish a colony at Carthage (Plut CG 11). Appian leaves open
the possibility that the omens were invented as political manipulation, but also says that the attempt to
found a colony at Carthage disregarded Scipios curse on the place when he destroyed it in 146 BCE (BC
1.24). Although it is standard historiographical practice for bad omens to foreshadow disastersuch as the
omens that Plutarch reports attended Tiberius Gracchus on the day of his death (TG 17)the attempt to
recolonise an area under curse stands out as the only indication that Gaius was violating religious scruple.
This event is narrated immediately before Gaius return to Rome and the subsequent disastrous events.
114
Ernst Badian, P Decius P f Subulo: An Orator at the Time of the Gracchi (1956) 46 Journal of Roman Studies
9196; Stockton (n 100) 198200.
Tiberius had unleashed an exemplum whose force was uncontainable; it was to be
repeated in the late Republic until Augustus put an end to civil discord. Custom was not
only more powerful than the law to begin with, but in the face of the laws insufficiency,
exceptional behaviour became the mos maiorum and was subject to repetition. The
parallels between the stories of Gaius and Tiberius deaths are irresistible, and this is only
the beginning.
115
Cicero writes of a dream that Gaius had many years before his tribunate:
his brother Tiberius told him that no matter how long he delayed, he would meet the
same death.
116
Velleius makes Tiberius death foundational for the entire period of civil
discord at Rome, where he emphasises impunity for spilling citizens blood.
117
He
describes the results of this event in rhetorical terms as an exemplumrun rampant:
And it is not at all to be marvelled at: for exempla do not stop there, where they began, but in
however small a path they have been received, they made for themselves a way of wandering
off, and once one has wandered from the right way, goes headlong, and no one thinks foul for
himself what was fruitful for another.
118
Tiberius Gracchus particular exemplum is understood as obeying a general
characteristic of exempla, namely that they develop lives of their own. The question that
would face Augustus was how to stop, transform, or redirect this exemplum.
The exemplumis first re-enacted, as Velleius again puts it, by Gaius himself: he entered
on a tribunate of the same exemplum, either for the sake of avenging his brothers death
or of preparing the way for regal power.
119
The alternative explanations offered by Velleius
for conducting his tribunate according to his brothers example either replay the
accusations against Tiberius (regnum), or set him on the path of vengeancealways a re-
enactment.
HISTORY LESSONS FOR DECISIONISTS
When Carl Schmitt defines the sovereign as he who decides on the state of exception, a
number of issues are unclear. He was working within a European tradition where
monarchy had by and large given way to modern democratic states. His definition is
polemic in that the divided government of modern democracies dilutes sovereignty and
it is precisely because of this division that certain sorts of decisions become legally
54 Law and Humanities
115
Velleius emphasises the similarities: the same madness as caught up Tiberius caught up his brother Gaius,
2.6.1; their dead bodies suffered the same indignity: just as earlier the body of Tiberius Gracchus, so that
of Gaius was thrown in the Tiber by the outstanding cruelty of the victors, 2.6.7.
116
Cicero de diuinatione 1.56.
117
Velleius Paterculus 2.3.3.
118
Velleius Paterculus 2.3.4.
119
Velleius Paterculus 2.6.2.
problematic, particularly the decision on the state of exception. The Fascist backlash
against the modern liberal state was an attempt to reinvent sovereignty in a Schmittian
guise. These days, terrorisms unpredictability requires an exceptional response and this
threat has been making inroads into the rule of law in the United States. Schmitts
definition, however, presumes that sovereignty is operative.
I have tried to argue that sovereignty was not a pre-existing entity at Rome in the
Republican period, but rather emerged in this troubled period from the repeated states
of exception. Augustus clearly holds sovereignty in the form delineated by Schmitt and
expanded on by Giorgio Agamben in Stato di eccezione. Augustus may in fact provide the
foundational model for this problematic. Nevertheless, this particular form of
government was by no means inevitable. Although the Romans in the Republican period
had laws, the primary regulatory institutionif we can call it suchwas rather the mos
maiorum, the customs of the ancestors. If sovereignty lies at the intersection of the law
and politics, how are we to conceive of it when the law is not fully operational as a
regulatory body? If the mos maiorum governs both private and public behaviour, does
nothing but politics remain? The exemplumis a structure that codifies the mos maiorum;
it establishes not so much law as precedent in a looser sense.
120
Narrative played a much
greater role in politics than we post-Enlightenment moderns would expect.
For the period under study, I suggest a revision of Carl Schmitts dictum. Sovereignty
was not operative in ancient Rome until repeated states of exception exerted sufficient
pressure on the structures of government so that a sovereign emerged. The sovereign was
created by the decision on the state of exception. Getting rid of him was more difficult;
it is not until the American Revolution that we see the return of a system of divided
government modelled in part on the long defunct Roman Republic. Although the
American legal system is much stronger than that of Republican Rome, the rule of law
remains vulnerable to exceptionalism.
Agamben and the Roman Republic 55
120
For the narrative form of the exemplum see Quintilian (5.11.6); Lowrie (n 45) 2930; Matthew B Roller,
Exemplarity in Roman Culture: The Cases of Horatius Cocles and Cloelia (2004) 99 Classical Philology 1,
2 and 10.
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