Originally published in 1995, Homo Sacer rose to the status of an emblematic theoretical anatomy of politics in the early twenty-first century, and its author was quickly catapulted to the rank of an academic superstar.[2] The publishing phenomenon that was Hardt and Negri’s Empire[3] was supplanted by an earlier work that also hailed from the circles of the new Italian Left[4] but that was in effect the very antithesis of the latter’s markedly optimistic faith in the capacity of the spontaneous, non-state-mediated organization of the multitude to effect a revolutionary transformation of social relations from within the “Empire.” In the constellation formed by Agamben’s work and its interactions with a number of already-established or emerging forays into the problematics of the state and its outcasts (the period in question marks the explosion of interest in Carl Schmitt’s conception of sovereignty and the state of exception,[5] the revitalization of Michel Foucault’s mature explorations of biopolitics and governmentality,[6] and the significant expansion of literary and philosophical engagements with bare life and animality[7]), the popular-democratic future that a book like Empire envisioned was replaced by the obstinate archaism of a sovereign right over “life and death” and by the baleful spectacle of its victims, caught in what Negri called “the destinal insignificance of being.”[8] It was not an unwarranted paradigm shift: the period saw civil rights and liberties curtailed or suspended, the norms of civil and international law (including due process and the right to legal representation) consigned to oblivion, torture normalized in the interests of “security,” the specters of the concentration camp and its “Musselmans” (this time, frequently, literally Muslims) return. As far as theory was concerned, mourning was the order of the day. When, in 2004, Judith Butler followed her 1990s classics, Gender Trouble (1990) and Bodies That Matter (1993), with Precarious Life, she was largely registering the impact of disconsolate winds of change: from within the experience of a world order seemingly organized around the globalizable right of states to kill, torture, and detain their subjects or the subjects of other states with impunity, bodies simply did not seem to matter in the way they once did, as sites of transgression and defiance: “each of us is constituted politically in part by virtue of the social vulnerability of our bodies. . . . Loss and vulnerability seem to follow from our being socially constituted bodies, attached to others, at the risk of losing those attachments, exposed to others, at risk of violence by virtue of that exposure.”[9]

There have, of course, been critiques of the dominant logic of this theoretical constellation, particularly as regards the kinds of politics it enables or renders impossible. Jef Huysmans, for instance, argues that the tendency to think contemporary democratic politics from the perspective of its absolute limit (the concentration camp) can prove profoundly depoliticizing. If Schmitt’s decisionist theory of exception, Huysmans points out, “sought to delete ‘the political capacity of society’ and to collapse the sociality of the people into a Volk brought into existence by fear of the enemy and the Führer,” the hypostatization of an anomic, bare life takes on the character of a Heideggerian “jargon of authenticity.” Bare life, particularly in Agamben’s own deployment, becomes life extricated from all legal, economic, and political forms of mediation, life that “exists purely in relation to itself.” Thought that becomes spellbound by this possibility risks succumbing to “an apocalyptic political vision” that radicalizes Schmitt’s own separation of politics and society, thus rendering “the collapse of order into anomic, self-referential life” the “defining”—one might say sovereign—”principle of politics.”[10] Jacques Derrida’s The Beast and the Sovereign, on the other hand, points to the problems that haunt the ambition to turn such apocalypticism into a properly historical reflection on the nature and character of the evolution of sovereignty and of the state form: Agamben’s “insecure” semantic distinction between Aristotelian deployments of bios and zoē “cannot serve to determine a historical periodization,”[11] for though he appears to take “the Foucauldian idea of a specifically modern biopolitics seriously,” he is also “keen to recall that it is as ancient as can be.”[12] The ominous retroactivity with which the extremities of contemporary biopolitics register themselves within the realm of premodern law suggests that historical difference has been overtaken by what the camp itself effects: the ontological obliteration of time itself, the utter annihilation of eventfulness, contingency, and rupture from the horizon of history.

What this tends to leave us with is the hypostatization of “means without ends,” a politics reduced to that project-less, socially deracinated anomie[13] that Agamben has popularized in the triad of the Musselman, the human being as “what remains after the destruction of the human being”; the animal, figure of the “‘great ignorance’” that lets life “be outside of being, saved precisely in . . . being unsavable”; and Bartleby, “the extreme figure of the Nothing from which all creation derives,” the guardian angel of “the luminous spiral of the possible” that can only emerge out of “the colorless abyss of the Nothing.”[14] In his Wars of Position, Timothy Brennan speaks of an “anarchist sublime”—a term that he does not quite gloss, but that I think is an apt description of the affective and political modality expressed by the idealization of an idiosyncratic type of antistatism, one that extols the redemptive virtues of “passivity rather than rebellion,”[15] mourning rather than insurgent self-assertion, “sur-vival” rather than life. What remains in the wake of the paralyzing image of our universal capture by the sovereign exception is, after all, no longer politics but ethics, “thinking that tars all thought and all politics with its own impotence, by making itself the custodian of the thought of a catastrophe from which no ethics, in any case, was able to protect us.”[16]

There is something quite telling about the fact that an understanding of the dialectic of bare life and sovereignty that preempted all recourse to “the key category of democratic politics, ‘the people,’”[17] attained critical legitimacy at a time when the antipolitics of boundless optimism was inverted into an antipolitics of quasi-nihilistic catastrophism: what both share—and what Agamben’s own critique ironically legitimates—is a preemptive ban on the very possibility of collective political action, for they suggest that if history has not rendered the prospects of emancipatory subjectivization redundant (as neoliberal doxa would have it in the triumphal 1990s), it has nonetheless rendered them always already impossible.[18] My objective in this essay will be to contest this theoretically hegemonic understanding of the problematics of sovereignty and bare life constructively, by sketching the lineaments of an alternative genealogy of their configuration in Western culture and history. I will do so by revisiting this configuration as it surfaces in three historical conjunctures—Roman antiquity, early modernity, and the industrial era. Each of these moments, in turn, will be tied to a different domain of methodological inquiry: historical philology, political anthropology, and political economy.

Sacratio against Sovereignty

“Rome,” Michel Serres remarked, “is the city of the object; it does not pose the question of the subject.”[19] Yet, I would argue, it is precisely the question of the subject—the sudden and scandalous irruption of something that disturbs the hierarchical order of the city—that is posed by the violent Roman custom of sacratio capitis,[20] the Roman decree that declared one sacer. Agamben, it is well known, relies heavily on this “obscure figure of archaic Roman law,” which, in his reading, furnishes the “key” that makes “the very codes of political power” unveil “their mysteries.”[21] Yet there is something striking about the haste with which he moves from the definition of sacer in Pompeius Festus’s De verborum significatu (On the significance of words)[22] to an examination of the import of the topology of the sacred man’s placement beyond the pale of both human and divine law. It is on the basis of this double exclusion from the civic community and from the realm of the divine that the fundamental affinity between the “double exception” involved in Festus’s definition of sacratio capitis and the “structure of sovereign exception” can be derived; and hence, that the contention that “the production of bare life is the originary activity of sovereignty” can be secured.[23] “The sovereign and homo sacer,” Agamben argues, are “joined in a figure of an action that, excepting itself from both human and divine law . . . nevertheless delimits what is, in a certain sense, the first properly political space of the West, distinct from both the religious and the profane sphere, from both the natural order and the regular juridical order.”[24]

One cannot help wondering how much such arguments reveal about the actual practice of sacratio, a law that is quickly invested with all the portentousness of transhistorical significance. It is puzzling that a study not short of philological erudition eschews analytical discussion of the context in which this practice is embedded in the retrospective Roman commentaries of Livy, Dionysius of Halicarnassus, or Plutarch, not to mention the substantial body of late nineteenth- and twentieth-century philological, historical, and legal commentaries on these inevitably contestable reconstructions of the unwritten history of early Rome. Though scholars have long disagreed over whether sacratio persisted, vanished, or was transformed in the legal practice of the Roman Republic,[25] there seems to be consensus over the fact that in its earliest deployment under the kings (753–509 BCE) sacratio, “the earliest penalty of Roman criminal law,”[26] was only imperfectly separated from religious practices of sacrifice and was in fact largely subsumed within the auspices of private, family law.[27] Already dwindling in relative significance by the beginning of the Republic at the end of the sixth century BCE (509), sacratio, it appears, was originally tied to an area of particular legal difficulty for the early Romans. This area concerned the problem of caring for subjects who were liminally situated in relation to the patrician ruling class—the clientes and the plebeians. Book 2 of Dionysius of Halicarnassus’s Roman Antiquities identifies the clientes with the plebs, suggesting that King Romulus, seeking to redress the fact that the plebeians had no voice in public affairs, “placed” them “as a trust in the hands of the patricians, by allowing every plebeian to choose for his patron any patrician he himself wished.”[28] Other views suggest that the clientes were a group distinct from the plebeians, bereft of any freedoms and reduced to the status of passively represented elements of the populus romanus of patricians. In this interpretation, they were originally immigrants who went to Rome in search of peace and security or employment, or inhabitants of neighboring towns who were conquered without being turned into slaves.[29] It was their being perceived as ethnic aliens that deprived them not merely of access to political office, as was the case with the plebeians, but also of citizenship, civil rights, and recourse to the law.[30]

Whether the distinction between clients and plebeians is to be maintained or not, the case remains that for early Roman law, the former constituted social subjects at once included in and excluded from the populus romanus: excluded politically, they were included through private—and, hence, sacred—law. The hospitium privatum, which made a citizen responsible for the guardianship of a client (rendering the citizen a patronus) was sanctified by religious and customary authority. It also produced mutual rights and obligations between the parties of patron and client.[31] “The patron,” Fustel de Coulanges would note, “was obliged to protect his client by all the means and with all the power of which he was master; by his prayers as a priest, by his lance as a warrior, by his law as a judge.”[32] The breach of fides, of the duty to be faithful in one’s representation of the client in legal and juridical affairs (even at the cost of acting against one’s own blood relatives),[33] and of the sacred obligation never to undertake action against the client or bear witness against him, was considered treason or perduellio and was among the earliest and most principal wrongs punished by the terrible pronouncement of sacratio capitis.[34] Indeed, after Dionysius’s reference to Romulus’s law, which punished the violation of patron-client fides by decreeing that the culprit should be put “to death by any man who so wished as a victim devoted to the Jupiter of the infernal regions,”[35] the best-known early reference to sacratio is that immortalized by the Twelve Tables. Written in the early years of the Republic (451–450 BCE), largely as an attempt to respond to plebeian pressure for increased civil rights and protection from patrician abuse, the Tables stipulated that “patronus si clienti fraudem fecerit, sacer esto” (the patron, if he defrauds his client, is to be decreed sacer).[36]

Clearly, the relationship between sovereignty, the state of exception, and bare life in this instance is dramatically different from what Homo Sacer has accustomed us to expect: the threat of reduction to bare life hangs over the head not of the individual who is caught in “inclusive exclusion” in relation to the community—for that would in fact be the client—but over that of his legal guardian and representative, the patron. The fall into a condition of bare life, in other words, is at once the sign of the absolute abandonment of one theretofore fully included in the political community and of the hyperbolic care the community exhibits toward one it has otherwise excluded. It is as if the state of exception through which the client is both excluded from and captured in the juridico-political order of the city posits a demand for a corresponding and mirroring state of exception, through which the Roman state seeks to redress a fundamental asymmetry of power that it nonetheless maintains. What this early application of sacratio illustrates is thus emphatically not the unlimited exercise of sovereign violence; it is rather a principle of violent containment targeted specifically against the abuse of the quasi-sovereign power of the patron[37]—against, more precisely, the patron’s violation of the customary constraints of a moral economy based on codependence and loyalty.

As I have already suggested, some historians have cast doubt on the reliability of Dionysius’s conflation of clientes and plebs, suggesting instead that the former constituted a third group, besides those of patricians and plebeians. What is more certain is that the ground of protection from patrician abuse was in both cases the proclamation of the sacrosanctitas of the legally and politically endangered party.[38] Such sacrosanctity dictated that he who would seek to abuse these groups by exploiting their precarious position was to be decreed sacer. Though some have suggested that the shift from monarchy to Republic entailed not merely a loosening of the bonds of patronage but also an increase in the father’s sovereign power over life and death (the patria potestas),[39] the threat of sacratio did not lose all connection to its earlier role as a means of protecting the socially or economically weaker from abuse by established power and authority: the plebs effectively replaced the clients at center stage in the years of the Republic, partly due to the gradual decline of the patron-client institution[40] and partly because the plebs’ status replicated the clients’ exclusion from personal and civic rights, perhaps in an even more radical form. Responding to the demands posed by that eminent victory of ancient class struggle, the second plebeian secession of 450 BCE,[41] the Leges Valeriae et Horatiae of 449 BCE accordingly declared that any man who violated the sacrosanctitas of a plebeian tribune (tribuni plebis) was to be decreed sacer, forfeiting his head to Jupiter, while his possessions were to be sold at the temple of Ceres, Liber, and Libera:[42] “ejus caput Jovi sacrum esset, familia aedem Cereris Liberi Liberaeque venum iret.”[43] Livy further notes that the plebs demanded as a condition for their return to the city that those who “should declare the election of any magistrate without appeal, and that he who might so declare,” should “be put to death without offence to law or religion and that such a homicide should not be held a capital crime.”[44] Agamben himself briefly refers to the similar stipulations of the earlier Lex sacrata—a reference that occasions his momentary admission that sacratio was capable of founding “a political power that in some way counterbalanced the sovereign power.”[45] Yet instead of elaborating on the reasons for making such an awkwardly counterfactual concession, he hurriedly moves the clock forward, to “the end of the old republican constitution and the birth of the new absolute power” of Augustus, who assumed the potestas tribunicia and declared himself sacrosanctus in perpetuum.[46]

But this was already the dawn of the empire, when we can be almost certain that sacratio had vanished as a practice. In the era of the Republic, Augustus’s usurpation of tribunicial authority would have most likely constituted a capital offense, rendering him not sacrosanct but sacer. For by the time of the second plebeian secession, sacratio had become the fundamental means of safeguarding the inviolability of the civil rights embodied in the plebeian tribune. Note that Pompeius Festus, whose authority Homo Sacer evokes, plainly says that the proclamation of sacratio belongs to the powers of the “plebiscite,” the plebei scito forged out of the class struggles of the fifth century.[47] Having shed its regal prehistory as a patriarchal institution intended to regulate the virtually unlimited power of citizens over aliens, sacratio was transformed into a republican weapon, an active means that republican subjectivity deployed against the predations of elite authority. It is such from as early as 509 BCE, the first year of the Republic, when Valerius, as Livy tells us, proposed that any man who would plot for the return of the monarchy was to be decreed accursed (“sacrandoque cum bonis capite eius qui regni occupandi consilia inesset”),[48] to as late as the mid-first century BCE, when Antonius, according to Appian’s Civil Wars, was to help legitimate the assassination of Julius Caesar by suggesting that if the latter had indeed usurped sovereign power, he had thereby placed himself beyond the pale of the law: “if our decision is that he was an upstart who ruled by force, his body is cast out unburied beyond the borders of his country and all his acts are invalidated.”[49]

Sacratio against sovereign authority: this formula, in which the decree that renders one sacer figures as the violent precursor of a number of subsequent struggles for the salvaging of political rights from the rapacity of absolute power, underpins a crucial recasting of what Agamben calls “the secret tie uniting power and bare life”[50]—one that refuses to “identify with the perspective of sovereign power” at the expense of attentiveness to “popular political practice.”[51] In this politically heterodox version, bare life is not the indication of an abject surrender to the power of law and the state. It is rather the means through which a certain kind of power—the power, frequently, of the disempowered—opposes itself to constituted authority.[52] This means that the “and” Agamben’s work interposes between sovereign power and bare life does not invariably mark the distribution of law-suspending power and killable zoē along the securely discrete positions of sovereign authority and its victims. Rather, it indicates an internal fracturing within the concept of sovereignty. If for Agamben, who in turn evokes Nancy, “sovereignty is . . . ‘this law beyond the law to which we are abandoned,’”[53] the Roman record invites us to think of an exceptional “law beyond the law” to which constituted sovereignty is itself absolutely exposed so that the vulnerability of those “normally” abandoned by the rule of law may remain less than absolute. The threat reserved for those who would abuse the imperative of fidelity and, conversely, the protection of those excluded from the provisions of normal juridico-political arrangements constitutes a different, oppositional take on the import of inclusive exclusion. As Mika Ojankagas remarks on the question of the Foucauldian figure of the plebs, plebeian subjectivity may thus be understood as “the internal limit of power,” a “counter-figure” of the Schmittian sovereign.[54] The plebeian secessions invite us to reflect on a mirroring of sovereign authority that is also its fracturing: subtracting themselves from the patrician count, the plebs converted the position of the outcast and the excluded[55] into one of exceptional authority,[56] endowing themselves with the right to pronounce their own interdictio against those who would retain them in impotent, internal political exile.[57]

The King’s Three Bodies

It is to the extent that it represses the political import of this “other” trajectory that Agamben’s account is able to cast the relationship between sovereign and homo sacer in terms of a fatal complementarity at “the two extreme limits of the order” of sacratio: “The sovereign is the one with respect to whom all men are potentially homines sacri, and homo sacer is the one with respect to whom all men act as sovereigns.”[58] But the forgetting or repression of what is resistant to the reductive character of such formulations is not without its symptoms of reactive return: for no sooner has Agamben introduced the initially binary schema of the sovereign and the homo sacer than he begins to collapse the two terms onto each other. Hence, the discussion of the religious ritual of imperial funus imaginarium and its parallels in medieval burial custom leads the chapter “Sovereign Body and Sacred Body” toward the idea that there exists “a darker and more uncertain zone . . . in which the political body of the king seemed to approximate—and even to become indistinguishable from—the body of homo sacer.”[59] Yet this is a discussion that involves nothing more politically consequential than the similarity between the emperor’s colossus and the one used in the iconic burial of the surviving devotus. It is not the logic that authorized the killing of the sovereign that is at stake here; it is rather his natural death, which, in and of itself, is said to make apparent sovereignty’s “supplement of sacred life,” an “excess that seems to be as such inherent in supreme power.”[60]

Agamben’s way of framing the proximity between sovereign and homo sacer remains closely linked to the founding thesis of Ernst Kantorowicz’s magisterial The King’s Two Bodies (1957), for which medieval absolutist authority involves the “abstract physiological fiction” of the double body of the sovereign: the immortal and immaculate “body politic,” in Edmund Plowden’s Elizabethan formulation, and the perishable and fallible “body natural.”[61] Yet there is good reason to think that this bipartite schema does not quite exhaust the problems raised by the legacy of countersovereign violence—and not merely in Rome. Aristotle’s Politics, let us recall, had positioned sovereignty at the borderline, not between mortal and immortal and perfect or imperfect, but between the more-than- and the less-than-human: “But he who is unable to live in society, or who has no need because he is sufficient for himself, must either be a beast or a god.”[62] Unlike the state rhetoric of what Kantorowicz calls “medieval political theology,” the Aristotelian schema underlies a vision of sovereignty (sovereign autonomy, sovereign externality to law and society) as something that doubly misses the destiny of the human, either by superseding it (as godliness) or by proving itself miserably inferior to it (as beastliness). Sovereign power and autonomy thus both replicate and complicate Aristotle’s famous definition of man as “political animal,” with its implicit oscillation between a meaning that would emphasize the qualitative transformation of the noun by its attribute (man as a political animal, one whose natural life is taken up and transformed by entry into political relations) and one that would on the contrary underline the power of the noun to transform the meaning of the attribute (man as a political animal, a creature that, judged by standards of political virtue, may always come to appear as less than human, and indeed almost less than animal as well).[63]

When it comes to sovereignty, then, one cannot quite speak of political theology without confronting its entanglements with the legacies of something one may call a political zoology. Reflection on the origins, character, and function of political authority and legitimacy involves a complex adjudication of the place of the sovereign within a figurative triad that includes not merely the human and the divine but also the animal. Long before it was divided into “body natural” and “body politic,” the sovereign body was split between sublimely elevated and animalistically degraded valences that cannot properly be mapped within a dichotomy of the properly “political” and the properly “natural.” In the first book of Aristotle’s Politics, for instance, sexuality and reproduction appear at once as the biological foundations of the patriarchal family—and, hence, by extension, of the originally monarchical political order of the city—and as signs of a biological automatism and compulsion that renders humans abjectly indistinguishable from the animal world.[64] Or we may recall that in Plato’s Republic Socrates describes the city guardian who abuses his authority as a dog, which “disobedience or hunger or some bad trait or other” turns into the very wolf he was meant to guard the herd from.[65] Tyranny (Socrates refers to the possibility of guardians becoming indistinguishable from despotais agriois, “savage tyrants”) is thus figuratively grasped as the result not of the fall from human to animal state but of the deviation of an already political animal from its own, paradoxically humanized nature. The domesticated dog, as Socrates remarks earlier on, normally has the “philosophical” ability to distinguish, in avant la lettre Schmittian fashion, between friend and enemy.[66] Centuries later, and on the eve of the French Revolution, Rousseau would advance his argument for popular sovereignty by suggesting that in being entrusted with a pastoral function—in being elevated to the status of a human shepherd of his animal flock—the absolutist sovereign is not so much a dog-turned-wolf as dog and wolf, guardian and predator at once.[67]

Derrida’s remark that the relationship between beast and sovereign reveals “a profound and essential ontological copula . . . at work”—so that reflection on “la bête et le souverain” is always haunted by an “irresistible hallucination” according to which “la bête est le souverain”[68]—is then only the most recent manifestation of a long-standing recognition, in classical and early modern political theory (Machiavelli’s prince-as-centaur, Hobbes’s sovereign Leviathan) and, more recently, in cultural anthropology, of the effective interchangeability of sovereign and animal bodies. Whether it be at the level of philosophical speculation or at that of ritual practice and popular mythology (from coronation rites to heraldry or fairy tales), there has always been a recognition of the fact that the distinction between the “creative violence”[69] of law-founding sovereignty and the antisocial, destructive violence of the predatory beast is a precarious one. Readers of Freud’s Totem and Taboo cannot but recall the black comedy of his description of the unenviable position of those “savage”—but, at a certain remove, also European—kings, who find themselves watched over by ceaselessly distrusting subjects, surrounded by taboos that “vividly recall the restrictions placed on murderers,” ceremonially beaten with “such thoroughness” that they do not survive their coronation, “worshipped as god[s] one day” and “killed as criminal[s] the next.”[70] And it is difficult to miss the rather strict correspondence between the earlier, Aristotelian designation of the man who has no need of society and is sufficient unto himself as “either a beast or a god” and Freud’s own suggestion that taboo “not only distinguishes kings and elevates them above all ordinary mortals, but . . . also makes their life a torture and an unbearable burden and forces them into a thralldom which is far worse than that of their subjects.”[71]

Freud, it should be noted, comes under sharp criticism in Homo Sacer precisely because of Totem and Taboo’s allegedly uncritical reproduction of the “mythologeme” of the “theory of the ambivalence of the sacred.”[72] Though the theory has earlier exponents, it is only in Freud’s work, Agamben argues, that “a genuine general theory of the ambivalence of the sacred” emerges. It is precisely such a theory that in Agamben’s view obscures the proper import of the sovereign ban, its function as the key that unlocks the juridico-political secrets of sovereign authority and their implications for modern biopolitics.[73] Yet the denunciation of the explanatory power of the ambivalence of the sacred is by no means an adequate explanation for why Homo Sacer and its sequels (as well as the work of many influenced by them) choose to bypass the important record of anthropological engagement with the logical underpinnings and cultural forms of a violence explicitly addressed against the figures of sovereign authority. René Girard’s Violence and the Sacred (a work whose absence from Homo Sacer’s references is striking, given the fact that Girard provides a largely antagonistic account of the function of scapegoating violence as a means of arresting the mimetic dynamic that renders violence endemic) is both equally critical of the effectively tautological presuppositions of a theory of the ambivalence of the sacred[74] and emphatic about the fact that the genesis of sovereign authority cannot be extricated from the prior identification of the sovereign and the sacred man:

The encyclopedic character of the transgressions . . . betray[s] who it is that the king is supposed to incarnate: the paragon of transgressors, the man who holds nothing sacred and who fearlessly assumes every form of hubris. . . . It is because of this impurity that the king, in the course of enthronement and renewal ceremonies, is subjected to the ritualistic insults and abuse of the people. . . . The needful insults and hostilities find their outlet in sacrificial ceremonies in which the king plays the chief role—the role of the original victim. . . . What is essential is the granting of authority during his lifetime to someone who is designated as a future victim and who draws his power and prestige retroactively from the reconciling power of the original scapegoat. . . . When we consider the monarchy of the Ancien Régime in France or any other traditional monarchic system, we cannot help wondering whether it would not be more profitable to consider these institutions in the light of sacred kingship than in the light of modern ideas about monarchy. . . . The life and death of the monarchic system in France—its sacred rites, its fools, its cure of scrofula through the royal touch, the grand finale of the guillotine—all this is clearly structured by the influence of sacred violence. The sacred character of the king—that is, his identity with the victim—regains its potency as it is obscured from view and even held up to ridicule.[75]

Girard’s reference to the existence of lines of continuity that link the obscure logic of “sacred kingship” not simply to tribal means of containing violence but to the regicidal modernity of the French Revolution is quite significant. Regicidal discourse predicated a specific relation between sovereignty and animality, one in which the sovereign—predisposed, like Rousseau’s Calligula, to view himself as God and the people as beasts of burden[76]—is himself cast as a predatory animal whose killing was not murder and could not (any longer) be understood as an act of sacrifice. What Robert Zaller describes as the “desacralization of tyranny”[77]—a process that may be said to escape from the periodicity of “sacrificial crisis” and enter political modernity proper in the period of the English seventeenth century—involved the drastic separation of the king’s body from any divine connotations of the sacred and hence threatened to attribute to it the original meaning of sacer. It is quite telling in this regard that Prince Rupert, leader of the Royalist army defeated during the English Civil War, was effectively identified with his “necromantic” pet dog, “Boy,” and that the latter’s intentional killing during the Marston Moor battle (1644) was deemed significant enough from the military point of view to be triumphantly reported in parliamentary journals and celebrated in pugnacious verse;[78] and that the executed king, Charles I, was himself so closely identified with his beloved spaniels that “King Charles dogs” were thrown into national disfavor as court pets until the last of the Catholic Stuarts had died.[79] As Zaller shows, what prepared the ground for such literally cynical deflations of sovereign authority was not simply the rhetorical reinvigoration of Roman models of tyrannicidal virtue in pamphleteering and on the stage;[80] it was also a certain image of the sovereign as beast, doubtlessly invigorated by Christian apocalypticism: “Is it utterly impossible that our King,” Joseph Boden was to ask of Charles I in his An Alarme Beat up in Sion (1644), “should be one of those tenne, of whom we read, [in] Revl. 17.13, that have one mind, and shall give their power and strength unto the beast?”[81] Charles’s successor to the throne during the brief Restoration of the Stuarts, Charles II, fared no better in the zoological invectives of anti-Catholic propaganda: “No tumbling play’r so oft e’er changed his shape / As this goat, fox, wolf, timorous French ape,” in the telling imagery conjured by the libelous ballad “Oceana and Britannia.”[82]

But no document attests to the lasting resonance of sacratio for early modern varieties of countersovereign violence as well as Edward Sexby’s tellingly entitled Killing Noe Murder (1657),[83] an uncompromising invective against Cromwell’s betrayal of revolutionary promise, his violation of the fides due to the revolutionary process itself. Sexby, a New Model Army agitator and a vociferous Leveller in the Putney debates,[84] charged Cromwell with conspiring to reintroduce an effectively counterrevolutionary politics of individual charisma in the commonwealth, and thus with intending to turn the republican revolution into a farce, a mere instrument of authoritarian dictatorship. Strikingly, Sexby’s text was dedicated to the Lord Protector himself, figuring him as its literary patron. It is difficult not to see this homicidal, as James Holstun calls it,[85] recasting of the relationship to patronage as a strategically motivated indexing of the Roman tradition of sacratio against the unfaithful patronus. Sexby focuses on the murderous reconfiguration of his relationship to his own sarcastically proclaimed patron, converting the conventionally adulating and deferential language of the dedicatory preface into that of a death threat directed against a protector who has turned, so the argument goes, into a predatory beast. The body of the pamphlet’s argument, accordingly, is a virtually textbook illustration of the persistence of Roman sacratio in the political imaginary of countersovereign violence, one crucially dependent on the figuration of sovereign pretensions to superhumanity as proofs of a subhumanity that deserves to be annihilated with impunity, without any trace of sacrificial solemnity:

A tyrant [is one] over whom every man is naturally a judge and an executioner, and whom the laws of God, of nature, and of nations expose, like beasts of prey, to be destroyed as they are met. That I may be as plain as I can, I shall first make it a question (which indeed is none), whether my Lord Protector be a tyrant or not? Secondly, if he be, whether it is lawful to do justice upon him without solemnity, that is, to kill him. . . . I find none . . . that have been so great enemies to common justice and the liberty of mankind as to give any kind of indemnity to a usurper who can pretend no title but that of being stronger, nor challenge the people’s obedience upon any other obligation but that of their necessity and fear. Such a person, as one out of all bonds of human protection, all men make the Ishmael, against whom is every man’s hand, as his is against every man. To him they give no more security than Cain, his fellow murderer and oppressor, promised to himself, to be destroyed by him that found him first. . . . A tyrant, as we have said, being no part of the commonwealth, nor submitting to the laws of it, but making himself above all law . . . is therefore in all reason to be reckoned in the number of those savage beasts that fall not with others into any herd, that have no other defense but their own strength, making a prey of all that’s weaker. . . . His person should be sacrosancta, cui nihil sacrum aut sanctum, to whom nothing is sacred, nothing inviolable.[86]

Capital Offenses; or, of Dwarf and Leviathan

Sexby’s pamphlet, Holstun tells us, enjoyed a long and interesting life of reeditions, translations, adaptations, and muted intertextual appropriations during the eighteenth and nineteenth centuries. A 1792 edition celebrated the “assassination of Gustavus III and the death of Emperor Leopold III,” while a translation published in 1804 replaced Cromwell with Napoleon I, and an 1856 version directed the threat against the target of Karl Marx’s vitriolic lampooning, Louis Napoleon.[87] Marx himself, as Holstun recalls, was to evoke Sexby’s leaflet in the third volume of Capital (1894):

In October 1855 Leonard Horner was already complaining about the resistance that a very large number of factory-owners were placing to the legal provisions for safety devices on horizontal shafts, even though the danger was continually being demonstrated by accidents, often fatal ones, and this safety appliance is neither expensive nor in any way disturbs the work. . . . The factory-owners were given open support in resisting these and other legal provisions by the unpaid Justices of the Peace who had to decide on the cases, and were generally factory-owners themselves, or friends of factory owners. . . . The factory-owners of the time formed a “trade union” to resist the factory legislation, the so-called “National Association for the Amendment of the Factory Laws,” based in Manchester, which collected a sum of more than 50,000 in March 1855 from contributions on the basis of 2 shillings per horse-power, to meet the legal costs of members prosecuted by the factory inspectors and conduct their cases on behalf of the Association. The object was to prove “killing no murder” if done for the sake of profit.[88]

There are a number of things deserving closer scrutiny in this passage. First, Marx discards the political content and historical context of Sexby’s pamphlet, preserving only its title and leaving the task of restoring its original significance to Engels’s dutiful editorial hand.[89] Second, and in direct connection to his gesture of drastic decontextualization, Marx inverts the inversion that Sexby’s phrase originally embodied: killing without murder is no longer the name of a popular tradition aimed at curtailing the abuses of sovereign power but a designation of the violence visited on workers’ bodies by what Marx calls “economy in the use of constant capital.” Third, and most importantly, the inversion does not reinstate sovereign violence at the antipodes of bare life; for though the victims of industrial sacratio are reduced to “beasts of burden,”[90] the perpetrator of their killing does not embody political sovereignty and does not authorize homicide by fiat of sovereign authority. The specter Marx conjures by speaking of a killing that does not amount to homicide is not, pace Schmitt and Agamben, that of the law in the form of its own suspension. In Marx’s deployment, Sexby’s phrase obtains a new, thoroughly modern meaning: if killing is deemed no murder, it is not because workers’ deaths are understood as affairs toward which the law remains indifferent (on the contrary, the context of Marx’s discussion is precisely bourgeois legal reform); it is because law, as instrument of the state, is in fact utterly impotent before the violence that inscribes itself within the workaday sphere of civil society. Though this is a thesis explored in a number of works of the 1840s (“On the Jewish Question,” Contribution to Hegel’s Philosophy of Right, The German Ideology), it is perhaps most clearly put forth in one of Marx’s less-well-known early works, “Critical Notes on the Article ‘The King of Prussia and Social Reform’”), from which it is worth quoting extensively:

Why did not Napoleon simply decree the abolition of beggary at a stroke? . . . This question is just as valid as that of our “Prussian” [Arnold Ruge] who asks: “Why does the King not decree the education of all deprived children at a stroke?” . . . The contradiction between the vocation and the good intentions of the administration on the one hand and the means and powers at its disposal on the other cannot be eliminated by the state, except by abolishing itself; for the state is based on this contradiction. . . . For this reason, the state must confine itself to formal, negative activities, since the scope of its own power comes to an end at the very point where civil life and work begin. Indeed, when we consider the consequences arising from the asocial nature of civil life, of private property, of trade, of industry, of the mutual plundering that goes on between the various groups in civil life, it becomes clear that the law of nature governing the administration is impotence. . . . If the modern state desired to abolish the impotence of its administration it would have to abolish contemporary private life. And to abolish private life it would have to abolish itself, since it exists only as the antithesis of private life. However, no living person believes the defects of his existence to be based on the principle, the essential nature of his own life. . . . Hence the state cannot believe in the intrinsic impotence of its administration, i.e. of itself. It can only perceive formal, contingent defects in it and try to remedy them. If these modifications are inadequate, well, that just shows that social ills are natural imperfections, independent of man, they are a law of God, or else, the will of private individuals is to degenerate to meet the good intentions of the administration halfway. . . . The more powerful a state and hence the more political a nation, the less inclined it is to explain the general principle governing social ills and to seek out their causes by looking at the principle of the state, i.e. at the actual organization of society of which the state is the active, self-conscious and official expression. Political understanding is just political understanding because its thought does not transcend the limits of politics. The sharper and livelier it is, the more incapable it is of comprehending social problems.[91]

The passage is remarkably clear in unraveling the contradictions that render the meaningful reform of social conditions an impossibility from within the pale of the bourgeois, liberal state. Perhaps more striking, however, is the revelation of a hidden identity between that state’s social impotence and its political power: the more powerful the (modern, liberal) state, Marx says, the less able it is to address the general principle of social ills (i.e., the contradictions generated by the mode of production), and hence the more prone it is to seek solace in a policy that is intrinsically impotent, doomed to degenerate into the evocation of “formal, contingent defects” or, worse, into appeals to the obstacles presented by natural imperfections, the laws of God, or the obstinacy of private individuals. In Marx’s use, the attribute “political” thus simultaneously evokes the presence of state power and the vacuity of such power in the face of the real, lived social contradictions that rift the space of civil society. “Politics,” to put it otherwise, is another name for the delusional prism that pictures the modern state as the locus of transcendent sovereignty, while missing the fact that this same sovereignty amounts to nothing when confronted with the violence that thoroughly saturates the petty affairs of so-called private and contractual relations—of “private property, of trade, of industry, of the mutual plundering that goes on between the various groups in civil life.”

To return, then, to the passage in the third volume of Capital, killing that is no murder is, in its modern, industrial guise, subtracted from reference to sovereign violence, just as it is also removed from the reach of its historical counterpart, the countersovereign deployment of a killing that is no murder. The violence that Marx makes visible—what “On the Jewish Question” calls civil society’s bellum omnium contra omnes[92]—is, under “normal” circumstances, not something that concerns the drama of sovereign decision, the solemn theatrics of sacrifice, the Schmittian distinction between friend and enemy, or the dispensing of penal justice. If workers die (or are mutilated, are left without the means of subsistence, or remain what they “naturally” are, means toward the extraction of surplus value), they do so not simply in a situation that lies beyond the edicts of law and religion alike but in one that modern sovereignty does not quite comprehend, whether in the sense of perceiving it as a politically intelligible event or in that of subsuming it as its own prerogative. Violence that is so thoroughly mediated by the sphere of “objective conditions” as to escape from the grasp of political intelligibility[93] is a reality that cannot be addressed by a legal or political formalism and cannot be redressed via recourse to the realm of executive decision or to the ethico-juridical language of rights (and wrongs). The proletariat, Marx was to note, claims “no particular right because the wrong it suffers is not a particular wrong but wrong in general.”[94] The violence of wrong is not simply contained in this or that empirically demonstrable damage inflicted on the worker—”crowding workers into confined and unhealthy premises,” “squeezing dangerous machines into the same premises and dispensing with means of protection against these dangers,” “neglect of precautionary measures in those production processes whose very nature is harmful to health or involves risk”[95]—but pertains to the very separation of the bourgeois state from a civil society whose concrete life becomes illegible from the perspective of the law, even though it shapes the lifeworld of its members.[96] As for the agent of the violence initially expressed in the nominally liberating, democratizing division of state and civil society, it is certainly not an empirical individual either, nor even a class that could be conceived in ethical terms, as sovereign and autonomous from external determinations;[97] it is the logic of capitalist accumulation, and capital, as we know, is neither a “thing” nor a “self-constituted subject” but a “definite social relationship.”[98] In Marx’s carefully phrased take on the factory situation: “The contradictory and antithetical character of the capitalist mode of production leads it to count the squandering of life and health of the worker, and the depression of his conditions of existence, as . . . a means for raising the rate of profit.”[99]

It is a crucial consequence of Marx’s intervention that the rhetoric of moral outrage at the rapacity of capital and the evocations of the sanctity of legal right are exposed as pitifully inadequate lines of defense against the hegemony of the market and its ratio. In his The Age of Capital, Eric Hobsbawm usefully captures the emphatically noncoercive direction of the legal reforms that marked the period of global capitalist consolidation, between 1848 and 1875: “In Britain the ‘Master and Servant’ law was changed, establishing equality of treatment for breaches of contract. . . . Between 1867 and 1875 all significant legal obstacles to trade unions and the right to strike were abolished with remarkably little fuss. . . . Only the market was to rule the sale and purchase of labour power, as of everything else.”[100] “Tyranny” could no longer name the power that is historically specific to the confluence of capitalism and formal democracy, even though the power of the market as a new version of reasons of state certainly remains a power that retains authority over life and death, even though it is explicitly unchecked by customary or legal constraints. The prerogatives assigned to the market’s “invisible hand” trump not simply all law (as has been demonstrated recently by the onslaught of anticonstitutional measures in the International Monetary Fund backwaters of modern Greece)[101] but also, once they have been pronounced sovereign in themselves, all recourse to the language of political decision. As Marx was perhaps the first to notice, this fact drastically curtails the possibilities of finding in past struggles the means for responding to the predicaments of the present. Faced with the abstractions of political economy, the legacy of premodern countersovereign violence is reduced to little more than a nostalgic rhetorical ploy, a fanciful poetic anachronism that reanimates past glories only at the expense of converting them into obstacles to critical understanding:

The tradition of all dead generations weighs like a nightmare on the brains of the living. And just as they seem to be occupied with revolutionizing themselves and things, creating something that did not exist before, precisely in such epochs of revolutionary crisis they anxiously conjure up the spirits of the past to their service, borrowing from them names, battle slogans, and costumes in order to present this new scene in world history in time-honored disguise and borrowed language. Thus Luther put on the mask of the Apostle Paul, the Revolution of 1789–1814 draped itself alternately in the guise of the Roman Republic and the Roman Empire, and the Revolution of 1848 knew nothing better to do than to parody, now 1789, now the revolutionary tradition of 1793–95. In like manner, the beginner who has learned a new language always translates it back into his mother tongue, but he assimilates the spirit of the new language and expresses himself freely in it only when he moves in it without recalling the old and when he forgets his native tongue.[102]

Marx’s own determination to learn to speak a new language by “forgetting” the naïve “native tongue” of the tradition of countersovereign violence cannot be divorced from his understanding of the conceptual limits imposed by the political formalism of the “spirits of the past.” Sexby’s own regressive self-fashioning “in the guise of the Roman Republic” is a telling indication of why Marx remembers his text—relic of a revolution that devolved into the bourgeois political consolidation of 1688—only in order to forget it. In his own reading of Sexby’s pamphlet, Holstun rightly concedes that “the secular millennialism of the assassin,” the “obsessive dream” of a “single, carefully planned act of violence” that could “automatically inaugurate a new age,” leads Sexby to “mystified individualism” and hence to the inability to grasp the significance of the “transformation of productive relations” in the republic.[103] That the consequences of this transformation involved the supersession of what had made Sexby’s vision possible in the first place is precisely what Marx’s striking intertextual politics registers.[104] And it is precisely this fact that those theorists who content themselves with registering the continuities between absolutist and democratic models of sovereignty consistently underestimate:[105] something fundamentally new does happen to the link between sovereignty and violence in the era of capitalist democracy; but its nature cannot be explained by reference to the imaginary of political theory, that is to say, by appealing to a discourse that reflexively confers analytical sovereignty on the idea that sovereignty is the absolute horizon and the state the supreme embodiment of social power.[106] The lineaments of the novelty that is at stake in the Marxian intervention cannot be made to appear without taking critical stock of the violent abstractions of that species of modern discourse which neither Schmitt nor Agamben (and not quite Foucault, though he is virtually the only one to have insisted on the rupture between absolutist sovereignty and its modern counterparts, particularly those of disciplinary power and governmentality)[107] seem to consider vital in the genealogy of our present: political economy, not simply as the so-called science dealing with the processes of extracting labor power and surplus value from living bodies but also as the domain that thereby dramatizes the rise of a species of violence beyond political sovereignty.[108]

What does it mean to think the problem of bare life without the sovereign—without, in other words, conceding pride of place to the gesture of restoring the political discourse of sovereignty to the place from which Marx’s own understanding of capitalist biopolitics had uprooted it more than a century and a half ago?[109] In his “Taming the Beast: The Other Tradition in Political Theory,” Michael Marder rightly remarks on “the subterranean development of capitalism as a historical economic form that depends on the bestialization of a significant portion of the population.”[110] Reflecting on Joseph Townsend’s 1786 Dissertation on the Poor Laws, Marder concludes that its discussion of hunger as the prime mover and great disciplinarian of the human animal is vital in this respect, to the extent that it makes an impersonal, biological fact supplant “the tyrannical force of the sovereign . . . with a more powerful despotism,” one that, as Karl Polanyi was to remark, “dwarfed the Leviathan.”[111] The historical sequence of the first years of the twenty-first century, one in which the Bush regime’s paradigm of a state on steroids was replaced by that of an anemic, impotent state that is hostage to its debt and beholden to the private interests of banking and big industry[112] is a dramatic reminder of the acuity of Marx’s insight into the paradoxical tendency of the modern state to appear as Leviathan when viewed from a juridico-political perspective centering on the entities of people, nation, and race (Hobbes, Schmitt, Agamben)[113] and as a dwarf when viewed from the far less dignifying lens of political economy. It is the same state that contemporary theory has frequently inflated to the dimensions of the Leviathan that is currently revealing its ludicrous inability to address or redress the violence inherent in spreading unemployment, in rising poverty, in the collapse of personal and family lives, in the disintegration of the public health and education systems.

To the extent that capital is today the par excellence name of sovereign authority (not the king, of course, but also, as we all know, not the people as represented constituency either), sovereignty thus comes to appear as an effect without a cause. In being ever more abstracted from the sphere of subjective experience, its authority becomes ever more resistant to normative, juridically or ethically inflected forms of intervention and critique—far more so than historical, politically organized sovereignty ever was. The critical responsibility that the insistence of bare life—life exposed to the violence of depersonalized and inhuman processes, beyond the confines of what the modern state is inclined to view as its sphere of competent jurisdiction—confers on our own moment, then, far exceeds the scope of an Arendtian genealogy of the origins of totalitarianism[114] or a retroactive derivation of political history from the standpoint of the exterminationist,[115] racially predicated politics of the camp. It involves the task of developing a thought and a practice that lays hold not simply of the dwarf (the antagonistic realm of civil society) hidden in the Leviathan (the state) but also of the Leviathan (capital) nestled in the dwarf. Today, we are still lagging behind the challenge of facing up to the illimitable power vested in a state of the situation[116] that has never cast itself in terms of a state of emergency or of exception; and that, perhaps for this very reason, continues to constitute political theory’s—and the Homo Sacer project’s—great unthought.{C}