lowrie sovereignty before the law

Sovereignty before the Law:

Agamben and the Roman Republic

Michèle 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 provisionally—when 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 31–55

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 Earl’s 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,

30–39, 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 showthat sovereignty, which was theoretically divided between the Senate and the RomanPeople in a state entitled SPQR (senatus populusque romanus), had no stable location inthe Roman Republic. Rather, it emerged sporadically but repeatedly in a series of actsover a century of civil war until it crystallised in the person of Augustus and thereafter inthe emperor.3 A fuller historical treatment of the emergence of sovereignty at Rome wouldcover sovereign acts of state violence between the Gracchi and the early empire. Thispaper has a more limited scope: it tests the hypothesis that sovereignty has an intimaterelation to state violence against citizens in the senatus consultum ultimum (SCU), whichwas first used against Gaius Gracchus, and at a few key points, namely the deaths of theGracchi 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-existedthe treatment of the Gracchi at Rome, the narratives told of these events by Cicero, VelleiusPaterculus, Plutarch and others treat them as new and exemplary. The model they offeris read by Romans of the first century BCE and early empire as relocating sovereigntyaway from the people. I hope to show, however, that we can offer a counter-narrativewhere the violent death of citizens is a site of contestation over sovereignty rather thanan affirmation of decisionism.

Giorgio Agamben’s revival of the ancient Roman category of the homo sacer (‘sacredman’ or ‘accursed man’) connects the sacred to the law. He attempts to argue that implicitin Western conceptions of sovereignty is the state’s extra-juridical power over the life anddeath of its citizens. He takes his conception of the homo sacer, a man who can be killedwith impunity but not sacrificed, from Verrius Flaccus, an antiquarian scholar whotutored 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 quotationfrom a much older law. The homo sacer was already an obscure concept in the time ofAugustus5 and it hardly seems evident that the Roman formulation of sovereignty at thatpoint remains relevant for today’s modern democracies. But let us remember, the RomanRepublic 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 fluidconception of power that does not dwell in a particular constitutional space, but rather exists in theinterstices of social and political power. The former essay distinguishes sovereignty with its focus on theleader from government’s concern for the regulation of the populace. For fluidity and evolution in theRoman constitution and the law see Lintott, ibid, 7, 63–64; Joy Connolly, ‘Political Theory’ in The Oxford

Handbook of Roman Studies (A Barchiesi and W Scheidel (eds)) (Oxford University Press, 2008forthcoming). Lintott makes a comparison to English common law (ibid, 5–6). I am dealing with a morelimited 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] hadalready 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 arguablyparadigmatic for future European monarchies. Furthermore, the explanatory value ofthe 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 amuch larger idea than the problematic reality of the homo sacer at any point in Romanhistory. Given the pressures on liberal democracies today and the current contest in theUnited States between the Bush administration and the various other sites of legitimacyoutside the presidency—the law-making houses and the law-preserving courts—it hasbecome imperative to rethink yet again the structure of sovereignty and its relation tolife. The transition at Rome from Republic to Empire, precisely because of the clarifyingeffect of historical distance, offers a good locus for the analysis of conceptions ofsovereignty. Although a broader range of sovereignty theory would be needed to elucidatethe story of the Gracchi more fully, I focus on Agamben because his formulation hasrecently become topical and controversial. He has brought some obscure Roman notionsto bear on modernity, and these need to be tested against Roman history. On the onehand, I find that his model can help to elucidate some of the dangers of the Romansolution.7 His ideas about life’s vulnerability to power shed light on the political crises atRome beyond the applicability of the precise category of the homo sacer. On the other,Roman thought about sovereignty will conversely reveal some weaknesses, historical andtheoretical, in Agamben’s conception.

The treatment of the Gracchi became paradigmatic for Cicero and others to arguethat the state had the right to suspend, if not the rule of law, then at least the regularworkings of the law when under threat. The collapse of the Roman Republic is markedby a series of violent political deaths culminating in the widespread assassination, or‘proscription’, of political rivals undertaken by the triumvirs (Mark Antony, the futureAugustus, and Marcus Aemilius Lepidus). The definition of the homo sacer was offered bya thinker in Augustus’ inner circle at a pivotal moment in changes in sovereignty’sconstruction; while there is insufficient evidence to show the homo sacer formed part ofAugustus’ thinking, this definition is less useful for early Rome than as an idea from theperiod of transition from Republic to Empire. In the face of the law’s weakness whenconfronted with political manipulation, the establishment of precedent in the narrativeform of the exemplum developed a logic of its own. Exceptional behaviour transformedthrough repetition into custom.

Agamben and the Roman Republic 33

6 Eva Geulen, Giorgio Agamben, zur Einführung (Junius, Hamburg 2005) 12–13: ‘Er … has … mit dem Begriffdes 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 NJ2007) argues that many of the formulations of modern Republicanism were first articulated by Cicero, andin her current research, Talk about Virtue: Republicanism Ancient and Modern (under contract withDuckworth), shows the relevance of Roman writings for contemporary political issues. I share a belief thatRoman 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:

Agamben’s theory about the relation of the homo sacer to sovereign power, Cicero’s use

of the brothers as an exemplum during the Republic, and Plutarch’s 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

Schmitt’s 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 order’s

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


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. Agamben’s 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 1.6.2–3. 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

emperor’s position as both law-giver and subject to the law, 24–25.

(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 law’s 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 sacred—consecration to the gods of the underworld—which 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


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 945–76.12 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) 72–73: Mommsen, Lange, Bennett, and Strachan-Davison; see his bibliography.14 Ibid, 73: Kerényi and Ward Fowler.15 See also Huguette Fugier, Recherches sur l’expression du sacré dans la langue latine (Les Belles Lettres, Paris

1963) 238 for incompatibilities between the legal and religious strands of scholarship.16 Agamben (n 9) 81–86.

of a free man a parricide,17 and is also an exception to ritual killings for purification, inthat it is not right according to divine law to sacrifice him. This status as double exceptionreceives support from Eva Cantarella’s suggestion that consecratio was not a death penaltyper se: the distinction between consecratio and sacrificium does not logically entail puttingthe homo sacer to death; rather such a person becomes subject to death as a consequenceof his exclusion from the state’s protection.18 Similarly, Bennett’s point that in the lateRepublic not only did the death sentence become rare, but exile became an acceptablealternative19 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 thedistinction between sacred and profane, religious and juridical’,20 and makes a bold linkbetween homo sacer and the political sphere of sovereignty, ‘which takes the form of azone 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 life—that 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 thepolitical 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 todeclare a man sacer in the people. Flaccus’ formulation represents, in my view, three stagesof legal procedure: (1) the original plebiscite (plebei scito), which presumably definedwhat made someone sacer, (2) the tribunician law (lege tribunicia prima), citing theplebiscite with the provision that whoever kills the homo sacer will not be charged withparricide,22 and (3) the adjudication of the people (populus iudicavit), which woulddeclare an individual sacer.23 All of these stages entail popular, rather than senatorial orexecutive, vehicles of power.


17 Agamben (n 9) 81 cites the law attributed to Numa: ‘if anyone knowledgably give a free man to death bydeceit, let him be a murderer’. Alfred Ernout (ed), Recueil de textes latins archaïques (Éditions Klincksieck,Paris 1973) 112. According to André Magdelain, ‘Paricidas’ in Y Thomas (ed), Du châtiment dans la cité:

supplices corporels et peine de mort dans le monde antique (École française de Rome, Rome 1984) 560–1,‘deceit’ in this formulation assimilates the use of trickery to (lost) legislation concerning killing with force,ie, Numa’s 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) 297–305.19 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 thiscase, the plebiscite and the lex could be different parts of the same historical event, namely the secession ofthe 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 ofthese operations were located in the people. Flaccus describes no monarch or exclusivesenatorial class imposing this structure from above, but rather the plebs setting up a legalmechanism for self-protection. Agamben takes Flaccus’ definition broadly, as a statementabout life, which can be killed but not sacrificed, in its relation to sovereignty, which, bysuspending the laws, may kill this life. He later considers the plebeian insurrection and thelex 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 statement’s implications. Since Flaccus explicitly cites the firsttribunician law, namely the lex sacrata, as the origin of homo sacer, his definition cannotbe used to generalise about sovereign power independent of the oppositional power of theplebs. The role of homo sacer in protecting plebeian power should not be forgotten eitherin Roman history or in relation to the 20th century atrocities that Agamben analyses. Thehistorical irony is that consecratio was used, among other things, to protect the people’smagistrates, the tribunes, but in the late Republic the people, often via the tribunes, werethe ones to object to the Senate and its delegates exercising the sovereign decision to putcitizens to death without trial. Still, the category sacer is ancient and surpasses theprotection it affords the plebs,25 and Agamben’s larger point about sovereignty’s powerover 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 apolitical process through which laws and plebiscites were passed, but the process by whichan 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 resultof 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 andsome scholars believe that Flaccus is wrong and there was no trial or even declaration ofstate. 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 thatthe reference to judicial procedure is a modernisation on his part.29 I suspect that Flaccus’


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 Tablesthemselves, some of our earliest material, are traditionally dated to 451 BCE, after the traditional date of thefirst 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; seeMichael 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 Romanstate’s historical ability to exclude citizens under the Republic, but rather reveals anattempt to regularise in Augustan times a practice viewed as problematic.30 The differencebetween a regular trial, a declaration of state, and extra-legal judgment reveals a crucialslippage between legal adjudication and political expediency.31

The century of civil war leading up to the Republic’s demise is marked by stateviolence against citizens without trial, precisely in exceptional circumstances where thelaw is insufficient to protect the state. Historical events show a paradigm of the state’scapacity to exclude citizens. This was done on political grounds with questionablelegality.32 The execution of the Catilinarians is a prime instance. The recurrent patternof bringing to trial or sending into exile the man responsible for state killings after the factshows that the legality of such political actions was disputed.

One of the central questions is the extent to which an official declaration is necessaryfor a citizen to be excluded from state protection. Is consecratio the result of an actuatingspeech act or simply a state of being that comes about under certain conditions? If adeclaration is necessary, who is authorised to make it? At stake in these questions is whodecides, 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 ofcontestation between popular and authoritarian forms of government.

A further difficulty with Agamben’s homo sacer is that the Romans do not talk aboutstate violence in these terms, yet they follow to a great, though imperfect degree thepattern he outlines. I do not think Agamben is mis-using Flaccus’ category, but ratherthat the Romans of the late Republic found the idea of consecratio archaic. The periodunder 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


30 In the aftermath of Caesar’s assassination, Brutus wants the fate of citizens who have fought against thestate (in rem publicam) without being killed (meaning the Antonians) to be a judgment of state, but leavesopen 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 betweenthe Senate’s ability to advise and the people’s 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 thisreference.

31 In any event, the regular procedure for situations where there was complaint that citizens were put to deathwithout trial is a constitutional conundrum: the establishment of an inquiry (quaestio) by decree of thesenate rather than a trial by the people (iudicium populi) in assembly (comitia centuriata); see Lintott (n 10)161–6.

32 Magdelain (n 17) 564 comments on the lack of ‘crimes d’État’ in the XII Tables, and assigns the reason forthis 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 Cicero’s pro Caecina (Princeton University Press, Princeton NJ 1985).

category to themselves, though it leaves traces. What they were aiming for, I think, wasjudicial 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 approvedwithout the law.34

For Cicero, consent is crucial to the state’s ability to intervene with a life or death decisionon citizens in the state of exception. During the Catilinarian conspiracy (63 BCE), Ciceroargues that the Catilinarian conspirators have lost their citizen rights as enemies of thestate. He uses the Gracchi as an exemplum in support and these arguments are formativefor 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 Cicero’s nearcontemporary orations, which were revised for publication after their delivery, as adeliberation made according to three standards: customs of the ancestors (mos maiorum),the law, and popular consent.35 Cicero’s first Catilinarian Oration before the Senate openswith the conundrum that he as consul has been authorised by the SCU to do whatever isnecessary to preserve the state, yet he hesitates to use these exceptional powers eventhough he cites a host of precedents, including the Gracchi, for killing citizens deemedinternal enemies.36 The reason for his hesitation is the lack of consent: ‘Then finally youwill be killed when no one so unconscionable, so lost, so similar to you will be able anylonger to be found who does not confess that this was done rightfully.’37 Custom and thelaw can only be brought to bear on the situation according to the principle of ‘right’, whichcannot 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 somuch Flaccus’ definition of this figure that is relevant as Agamben’s larger point thatpower of life or death over citizens inheres in sovereignty. The question is whether theCatilinarians, citizens engaged in a conspiracy against the state, can be killed without trialand without their killers becoming murderers. It is a legal question, but even more apolitical one. The determination must be made in a political dimension in relation tocustom and the law. Schmitt’s narrow criteria for sovereignty should allow us to ascertainwhere sovereignty is located on the basis of who decides. On the one hand, the law has


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) 6–7.36 Cicero Cat 1.3–4.37 Cicero Cat 1.5.

been suspended in that citizens cannot ordinarily be put to death without trial. Thedecision 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 turnsout to be relevant after all if we interpret his phrase populus iudicavit not as a legaldetermination in a popular court, but rather as a moral determination taking placeoutside the formal structures of the law. Cicero feels that his hands are tied until people—rather than ‘the people’—judge the act of putting Catiline and his like to death as just.Extraordinary actions under the state of exception sponsored by the Senate cannot beregarded as valid, even if legal, if they lack popular support.

Several strands need untangling here in the interplay between the legal and thepolitical in the decision about the life of the Catilinarians: the paradoxical status of thecitizen deemed a hostis (enemy) in being both internal and external to the state; theambiguity of whether the SCU actually suspends the rule of law and whether it is in facta state of exception; the role of custom, figured by the deployment of exempla, in Cicero’sattempt to win consensus. In all of these, the law and consent alike are constraining forceson political decisionism, so that sovereignty in Schmitt’s sense is diffused.

Cicero describes Catiline using language whose paradoxical nature revolves, likeAgamben’s analysis of the homo sacer, around the breakdown of the inside/outsidedistinction: he is the leader of the enemy within the city walls.39 As an enemy, the consulorders him to leave the city.40 Cicero immediately takes the order back and softens it topersuasion, to exile, a retreat indicating the constraints he is under, but his initial languagereveals the force of the cultural pattern he wants to deploy. This paradox climaxes inwords that, like sacer, convey religious awe. Catiline has in fact left the city by the timeCicero gives his second oration before the Roman people when he reassures them: ‘Nowno 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 Catilineunder 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 diverseand fighting among themselves’.42 The conventional portrait of Catiline as self-contradictory supports this rhetoric.43 Livy also uses monstrum of Spurius Maelius, oneof the exempla Cicero cites in his argument that Catiline should be put to death.44 The


38 Thomas N Mitchell, ‘Cicero and the Senatus Consultum Ultimum’ (1971) 20 Historia 47–61; discussedbelow.

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; 3.16–17, 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, 3.21–22, 24–25, 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 4.15.7–8; Cat 1.3.

commentators argue that Cincinnatus’ call for the expiation of the monster by pullingdown his house implies that Maelius was sacer, that is, ‘an object of religious awe’.45 Themonstrum and the homo sacer should not be made equivalent in any technical sense, butthey inhabit the same ideational space; they are paradoxically inside and outside the statesimultaneously.

Livy identifies two ways in which a man could become sacer, the first through aspiringto regnum (‘rule’), the second having to do with the law of tribunician sacrosanctitytreated by Flaccus. Along with the law of appeal, a law was passed so that the head, ie, lifeand possessions of anyone who plotted to seize kingship became sacer.46 Tribuniciansacrosanctity also targeted both the life (caput) and possessions (familia) of the one whoharmed the tribunes (as well as the aediles and decemviral judges).47 The person whoattacked a tribune became sacer, so that ‘any one who dispatched the offender was exemptfrom the ordinary penalties and taboos connected with causing death’.48 Bothmechanisms protect republican government, the latter through making sacer anyone whoattacked a tribune, the people’s representative, and the former through protecting thestate itself against devolving into kingship. Both laws guarantee the people’s role ingovernment.49 The word regnum is etymologically related to rex (king) and it isspecifically this sort of rule that the Romans perceived as a threat.50 Consecratio bears arelation to the SCU: both come to be used against regnum and are mechanisms designedto protect the state, the one setting the threatening person outside the law, the othersuspending the law temporarily so that the magistrates would not be restrained in treatingthe threat. The two interact in a complex way, as we will see below, in the narratives of theGracchi.

Sallust explains the SCU retrospectively in greater detail than Cicero, who leaves thepowers granted by the Senate to the magistrates vague.51 Since the SCU had been usedseveral more times by the composition of Sallust’s monograph, it could have developedgreater legal specificity in the meantime, though, as Agamben points out, ‘all scholars


45 RM Ogilvie, A Commentary on Livy Books 1–5 (Oxford University Press, 1965) 550; Wilhelm Weissenbornand HJ Müller, T Livi Ab Urbe Condita, 12th unchanged edn (Teubner, Berlin 1965) at Livy 4.15.7. Themonstrum is an emblem of the paradoxes of civil war: Cicero of Mark Antony (Philippics 13.49); Horace ofCleopatra (Odes 1.37.21), who was the foreign enemy at Actium; Michèle Lowrie, Horace’s Narrative Odes

(Oxford University Press, 1997) 152–3. In each case, there is a rhetorical attempt to get or keep the enemyout of the city.

46 Livy 2.8.2. Weissenborn and Müller (n 45) comment ad loc that this person ‘is excluded from all religious,political, legal relations’.

47 Livy 3.55.6–7.48 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 regnum was 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 exemplum without 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 SCU is 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

Senate’s 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 SCU could 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 Senate’s advisory power over the consuls’ executive

power.58 This objection challenges Schmitt’s location of sovereignty in the decision-maker.


52 Agamben (n 12) 50.53 Cicero Cat 1.3–4.54 Sallust Cat 29.2–3.55 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) 58–60; he analyses earlier disagreements about the SCU (49–51) 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 Senate’s 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). Mitchell’s 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) 149–74.57 Lintott (n 2) 40 with nuances; Lintott (n 10) 173.58 Lintott (n 2) 92–93.

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 Sallust’s identification of the SCU as 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 SCU itself 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

maiorum lack 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 SCU was 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


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) 196–8

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 state’s power over its citizens

emerges even more starkly than in Agamben’s conception. The law is developed as a

restraint over and above that provided by the people’s 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 SCU was 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

Agamben’s exclusion is excessively formalistic in that the dictatorship was a regularised

irregularity, which is what the SCU became; neither can be excluded from the mechanisms

for dealing with the state of exception on the grounds of regularity, particularly since

Agamben’s 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.


63 Agamben (n 12) 47.

THE SOVEREIGN ACT: TIBERIUS SEMPRONIUS GRACCHUS

Plutarch’s 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, Appian’s (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

legislation—the 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


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) 103–4; Plutarch likes to dramatise (82–85). 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) 30–40, 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) 93–116 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 peopleagainst the wealthy in the distribution of access to public lands. Although this annoyedthe Senate, it was only once he began to commit illegal actions that serious problemsbegan. In the interest of his land reforms, he ejected his fellow tribune Octavius fromoffice, an act Plutarch characterises as illegal and unseemly69 and the author of the de

viris illustribus as setting a new example (nouo exemplo).70 Titus Annius later accused himof 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 wouldhave been clear to a Roman reader. In addition, he was accused of regnum, so that,according to Livy’s criteria,72 he became doubly sacer. When he wanted to distributeAttalus Philometor’s wealth to those who had received the public lands, he refused tosubmit the proposal to the Senate. His neighbor Pompeius rose and said that Eudemusof Pergamum had presented Tiberius with a royal diadem and purple robe, believing thathe was going to rule Rome as king.73 Tiberius himself made a speech arguing that tribuneswho 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 kingshipsupported by an exemplum: that office was also consecrated to the divine,75 but Tarquinhad been expelled for wrong-doing. His argument against his fellow tribune’ssacrosanctity, however, did not bode well for his own.

Plutarch’s narrative of Tiberius’ death allows for a reconstruction of the conflictbetween his sacrosanctity and his becoming sacer.76 Tiberius did not encounter violenceuntil he ran for office a second time, an unprecedented act though apparently not literallyillegal.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 opponentswould 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


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; 3.55.6–7.73 Plutarch TG 14.2–3.74 This argument is parallel to Cicero’s that because of his actions, Catiline could be treated as a public enemy

before he was officially declared such by the Senate (Cat 1.28–29).75 Plutarch TG 15.4.76 Appian’s account (Bell Civ 1.7–17) 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

römischen Welt 1.1 (W de Gruyter, Berlin 1972) 722 says that we simply cannot know whether re-electionwas illegal.

78 Plutarch TG 17.4.

him while the voting assembly was going on that a party of rich men was planning to killhim. Tiberius put his hand to his head as a sign to some who could not hear that his lifewas in danger. His opponents interpreted this gesture as a call for a crown. If his life wasin danger, it was a violation of his sacrosanctity; if he was calling for a crown, he becamesacer by aspiring to regnum. Scipio Nasica, the pontifex maximus—a fact Plutarchmentions only after Tiberius’ death—called on the consul, Mucius Scaevola, to protect thestate 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 citizenwithout trial.81

In this formulation, the consul keeps both sacrosanctity and consecratio out of thequestion: he does not call Tiberius sacrosanct, but rather treats him as a citizen who wouldneed to be tried, ie, not a homo sacer. He further attempts to keep the dispute within thelaw and says that if the people vote anything unlawful under Tiberius’ influence, he wouldnot regard the vote as binding—he negates the Greek word for sovereign: κύριον. Thelegal argument, however, loses out to politics. Nasica uses a similar argument about theconsul to that used by Tiberius about his fellow tribune: that he is betraying the state. Hethen calls on those who would protect the law82 to follow him, covers his head with histoga, the gesture of a priest making a sacrifice, and leads the senators to slay Tiberius andhis supporters using sticks and stones on the Capitoline by the temple of Jupiter.83 Sinceanyone who violated tribunician sacrosanctity became Iovi sacer (‘sacred to Jupiter’),84 thelocus 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 issacrosanct become sacer? What Plutarch and Cicero both emphasise, however, is the lack


79 Plutarch TG 19.3.80 Nasica’s formulas evoke the phraseology of the SCU: see P Fraccaro, Studi sull’età dei Gracchi (L’Erma di

Bretschneider, Rome 1967 [1914]) 178–9. Marianne Bonnefond-Coudry, Le Sénat de la république romaine

de la guerre d’Hannibal à Auguste: pratiques délibératives et prise de décision (École Française de Rome, Rome1989) 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 forerunnerof the ultimate decree’.

81 Plutarch TG 19.3. Earl (n 2) 10–12, 117–18 traces Scaevola’s political allegiances: he is part of the groupsupporting 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 Nasica’s

pulling his toga over his head, but the gesture clearly signals sacrifice (eg Valerius Maximus 1.1.11). Badian(n 77) 725–6 takes the gesture as a symbolic attempt to authenticate the consecratio and emphasises theauctoritas of the high priest (724). Lintott (n 2) 183 sees Nasica’s action and gesture as a bridge betweenearlier tyrant-slayings and the later SCU. Earl (n 2) 119 n 1 comments that the Latin tradition gives thetoga 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 thetheory that the homo sacer underwent cultural repression in historical times at Rome.

84 Livy 3.55.7

of official sanction for this death—what 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 Scipio’s 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 Plutarch’s: 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 Agamben’s point that anyone could kill the homo sacer. But in the

face of the consul’s 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 killing—Plutarch 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


85 Appian Bell Civ 1.16. Badian (n 77) 724 n 162 says that Appian’s 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 city’s

sanctuaries.93 The Senate sent him to Asia to protect him—an exile with exactly the same

result as if he had actually been declared sacer—and he went even though he had duties

at Rome qua pontifex maximus.94 The logic of the homo sacer in Agamben’s sense operates

in both Tiberius’ and Scipio’s 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 state’s 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 Appian’s remark that a dictator

should have been called for and Scipio’s 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 men’s bodies into the Tiber in lieu of proper burial similarly marks

them as being outside state protection.


91 Plutarch TG 19.6.92 Badian (n 77) 726 reads Plutarch’s 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 21.2–3. Howard Hayes Scullard, From the Gracchi to Nero (Methuen, London 1959) 31: ‘… the

Senate decided that, since Nasica’s 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 Livy’s 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 Plutarch’s understanding. Badian suspects that Plutarch’s 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 Plutarch’s 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 SCU in a moment of crisis.97

The exemplum and the law both serve as tools for political competition.

Plutarch’s 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


96 Badian (n 77) 726.97 On the two legal innovations see Lintott (n 10) 167, 183–4. The Sullan proscriptions are a later attempt to

legalise the killing of citizens: see Arthur Keaveney, Sulla: The Last Republican (Croom Helm, London 1982)

159–60.98 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

cases—clearly relevant both to his brother’s 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 (πάτριον) if anyone

was summoned on a capital charge and did not answer summons, for a trumpeter to go

to the man’s 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 people’s

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 Republic—power was invested in men more than

in their offices—and 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


99 Cicero De amic 41. Bonnefond-Coudry (n 80) 759–60 compares the conservative polemic against the

Gracchi to the actual reforms and concludes that the rhetoric of overturning institutions (eg Cicero Leg

3.19–20) 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 3.3–4.102 Cicero pro Rab perduell 12.103 Stockton (n 100) 200–5.104 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 Senate’s 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 Senate’s 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


105 Plutarch CG 13–14.106 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 Senate’s 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 Gaius—a literal amplificatio—and 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 Agamben’s homo sacer to the

extent that he was excluded from the state’s 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 man’s homo sacer is another’s citizen protected by law. Under

the state of exception, there is no legal way to make the determination.


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 l’empire romain (Entretiens

19: 3–25) (Fondation Hardt, Vandoeuvres-Genève 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 Scipio’s 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 disaster—such 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

91–96; Stockton (n 100) 198–200.

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 law’s 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 exemplum run 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 exemplum is 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 brother’s death

or of preparing the way for regal power.’119 The alternative explanations offered by Velleius

for conducting his tribunate according to his brother’s example either replay the

accusations against Tiberius (regnum), or set him on the path of vengeance—always 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


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, terrorism’s unpredictability requires an exceptional response and this

threat has been making inroads into the rule of law in the United States. Schmitt’s

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 institution—if we can call it such—was 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 exemplum is 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 Schmitt’s 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.


120 For the narrative form of the exemplum see Quintilian (5.11.6); Lowrie (n 45) 29–30; Matthew B Roller,

‘Exemplarity in Roman Culture: The Cases of Horatius Cocles and Cloelia’ (2004) 99 Classical Philology 1,

2 and 10.

COPYRIGHT INFORMATION

TITLE: Sovereignty before the Law: Agamben and the Roman

Republic

SOURCE: Law Hum 1 no1 2007

The magazine publisher is the copyright holder of this article and it

is reproduced with permission. Further reproduction of this article in

violation of the copyright is prohibited. To contact the publisher:

http://www.hartjournals.co.uk/lh/index.html

lowrie sovereignty before the law

Documents