Abstract
This essay offers an exegesis and critique of the moment of community formation in Agamben’s Homo Sacer Project. In The Sacrament of Language, Agamben searches for the site of a non-sovereign community founded upon the oath [horkos, sacramentum]: an ancient institution of language that produces and guarantees the connection between speech and the order of things by calling the god as a witness to the speaker’s fidelity. I argue that Agamben’s account ultimately falls short of subverting sovereignty, however, because the sacramentum derives its power, at a fundamental level, from the ‘monothetic’ structure of truth—what Agamben calls ‘the name of God’ [il nome di Dio]. I propose we may yet salvage the oath as a means of subverting sovereignty, however, if we reconsider it in the context of polytheism, where the names of the gods [i nomi degli dei] can be many, while remaining powerful. First, through a reading of Aeschylus’ Eumenides, I argue that the Greeks understood the oath to function even where truth and falsity were inherently undecidable. Second, I argue that if we separate the truth and power functions interwoven in the sacramentum, we find a second formula, the decisory oath, which can be taken in order to produce a community even in the absence of one sovereign truth. As a kind of magical speech, the decisory oath provides the limit conditions for the possibility of distinguishing true from false in the sacramentum, and thus founds it.
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Notes
In examining the oath, ‘what is in question is not the semiotic or cognitive function of language as such but the assurance of its truthfulness and its actualization’. Also: ‘The oath is, then, a verbal act that accomplishes a testimony—or a guarantee—independently by the very fact that it has taken place.’ Agamben (2011, p. 4, 33; 2017, p. 303, 326).
I have adopted the terminology of ‘monothesis’ and ‘polythesis’ from recent discourses in the natural and social sciences, including ethnology and anthropology, on taxonomical classification. Given that a class is defined by inclusion or exclusion of members on the basis of shared properties, monothetic classes require every member to share some ultimate common property that defines the class, whereas polythetic ones only require that each member has at least one property in common with at least one other member. In a monothetic community like the one Agamben describes, that property is fidelity to truth in speech; but in a polythetic community, as I employ the notion below, inclusion can rest upon address, or a moment of discourse alone. For a technical discussion of these terms in their many uses across the disciplines, cf. Needham (1975).
‘My hypothesis is that the enigmatic institution, both juridical and religious, that we designate with the term oath can only be made intelligible if it is situated within a perspective in which it calls into question the very nature of man as a speaking being and a political animal. Hence the contemporary interest of an archaeology of the oath.’ Agamben (2011, p. 11; 2017, pp. 308–309).
As Agamben says, the problem with explaining the oath ‘by means of a reference to the magico-religious sphere, to a divine power, or to “religious forces” that intervene to guarantee its efficacy by punishing perjury’ is that it is then, ‘with a curious circularity’ thought to, at the same time, serve to prevent perjury, likely by threat, or through the example of other ‘infidels’. Agamben (2011, p. 65; 2017, p. 350).
‘The oath is, then, a verbal act that accomplishes a testimony—or a guarantee—independently by the very fact that it has taken place…As in Philo, the oath is a logos that is necessarily accomplished, and this is precisely the logos of God. The testimony is given by language itself and the god names a potentiality implicit in the very act of speech… It concerns not the verification of a fact or an event but the very signifying power of language.’ Agamben (2011, p. 33; 2017, p. 326).
‘For the living human being who found himself speaking, what must have been just as—perhaps more—decisive is the problem of the efficacy and truthfulness of his word, that is, of what can guarantee the original connection between names and things, and between the subject who has become a speaker—and, thus capable of asserting and promising—and his actions.’ Agamben (2011, p. 68; 2017, p. 352).
For these senses, see Benveniste (1973, p. 379).
See, for example, Wilhelm Schmidt-Biggemann’s chapter on the development of the concept of a divine name from Proclus to Jacob Böhme in which he treats this shift primarily in an epistemological and metaphysical register. Regarding the Neo-Platonist transformation of the multiple divine names into various divine predicates, he says: ‘The truth of the gods, who, for Proclus, are personifications of the divine predicates, lies below the inaccessible summit of the truth. The gods are attached (synaphes) to this truth they receive from the One.’ Schmidt-Biggemann (2004, p. 62).
As Alexander G. Weheliye argues, for example: ‘The idea of bare life as espoused by Giorgio Agamben and his followers discursively duplicates the very violence it describes without offering any compelling theoretical or political alternatives to our current order…This tension between the utter contamination of the present (bare life) and the mystical redemption located in an indeterminate tomorrow (form-of-life) defines Agamben’s thinking in toto, and also does not leave room for any sort of poetics or politics that might shift the current order of things. To put it in terms of Franz Fanon and Sylvia Wynter, Agamben fails to introduce any sort of invention into existence, since these two forces always occupy separate spheres of orbit in his philosophy, and for him invention can occur only after the abolition of present life.’ Weheliye (2014, pp. 82–83). Also: ‘My principle question, phrased plainly is: what different modalities of the human come to light if we do not take the liberal humanist figure of Man as the master-subject, but focus on how humanity has been imagined and lived by those subjects excluded from this domain?’ Weheliye (2014, p. 8). On the larger problem of positing deracialized or degendered political archetypes for archeological histories, cf. Weheliye (2014, pp. 6–7).
He continues: ‘The Latin citation comes from a passage in the Georgics (4.480) in which Virgil evokes the water of the Stygian swamp in grim terms, which refer to its function as “a great and terrible oath of the gods”: tardaque palus inamabilis unda/aliigat et novies Styx interfosa coercet [there lies the unlovely swamp of dull dead water, and, to pen them fast, Styx with her nine-fold barrier poured between].’ Kant’s use of this image requires further investigation. Cf. Kant (1993, §22:489, 22:491).
In ‘The Theory of Signatures’, Agamben writes, paraphrasing Paracelsus: ‘It should be remembered that every coin carries its proof and sign by which it may be known how much that coin is worth.’ Like the seal impressed on a letter, these serve not to identify the sender but to signify its ‘force’ (Kraft): ‘The seal is the confirmation of the letter which gives it authority among men and in trials. A receipt without a seal is dead, useless, empty.’ Agamben (2009, pp. 38–39).
‘Zeus is not a witness of the oath, but rather oath, witness, and god coincide in the utterance of the formula. As in Philo, the oath is a logos that is necessarily accomplished, and this is precisely the logos of God. The testimony is given by language itself and the god names a potentiality implicit in the very act of speech.’ Agamben (2011, p. 33; 2017, p. 326).
The possibility of perjury is attributed to the human, for Agamben seems to assume here, along with Plato, that the gods do not lie, and therefore they will always enforce the infidel’s speech as a curse and preserve those who maintain the fides as blessed. Plato (1968, 382a–383a).
Benveniste apud Agamben (2011, p. 39; 2017, p. 330). Agamben comments: ‘The interdiction does not in fact have a semantic content as its object, but the simple pronunciation of the name, that is, a “pure vocal articulation.”’ As Benveniste says further, ‘The swearword [Juron] is an oath, but an oath of outrage.’ Here, we find the sense in Dante’s re-working of Virgil’s underworld, placing the river Styx in the realm of the wrathful, instead of outside the pit, where the apathetic lie. And we can also begin to conjecture as to why Phlegyas, who burned Apollo’s temple in rage, rather the Charon, is the ferryman. Alighieri (1961, Cantos VII–VIII).
Cf. Foucault (1970, p. xix). ‘Heterotopias are disturbing, probably because they secretly undermine language, because they make it impossible to name this and that, because they shatter or tangle common names, because they destroy “syntax” in advance, and not only the syntax with which we construct sentences but also that less apparent syntax which causes words and things (next to and also opposite one another) to “hold together”’.
Plescia (1970, p. 6). He cites Thucydides, The Peloponnesian War, 5.47.8. Cf. also: 5.18.9.
Plescia (1970, p. 67). Plescia finds this in two places: the Athenian decree concerning the constitution of Erythrae (Cir. 453-2), and a similar decree concerning Chalcis (Cir. 446). In the first, both parties swear by the Athenian gods, while in the second, the men of Chalcis are threatened with the loss of civil rights (atimia), with a tenth of their property consecrated to Zeus, if they refused to swear. Plescia (1970, pp. 65–69).
He says: ‘I come to testify. This man, by observed law,/came to me as suppliant [νόμῳ ἱκέτης]…/and it was I who cleaned him of the stain of blood./…I bear/responsibility for the mother’s murder.’ Aeschylus (1953, lines 578-579). In the Laws, Plato regards the suppliant [ἱκέτης] as identical to the one who calls upon a god in the oath: ‘the god the victim supplicated and invoked when he won his promise becomes a devoted protector of his suppliant, who can consequently rely on the promise he received never to suffer without vengeance being taken for the wrongs done to him.’ Plato (1997, 730a).
Before the decision is reached, curses are already operable as well. The furies seek to bind Orestes with their words: ‘Neither Apollo nor Athene’s strength must win/you free, save you from going down forgotten…You will not speak to answer, spew my challenge away?/You are consecrate to me and fattened for my feast,/and you shall feed me while you live, not cut down first/at the altar. Hear the spell I sing to bind you in [ὕμνον δ᾽ ἀκούσῃ τόνδε δέσμιον σέθεν].’ Aeschylus (1953, lines 299–300, 303–305).
In Lyotard’s formulation, they would simultaneously be ‘victims’ of the other’s systems. Lyotard (1988, p. 5).
Philologists have for a while now been comfortable claiming that Aeschylus’ Eumenides is a tragedy specifically about language and its instability in the moment of crisis. As Simon Goldhill argues: ‘Tragedy indeed displays language’s failures and violences. The Oresteia, a trilogy whose plotting turns on the activity of persuasion and deceit, fragments and contests the language of dike throughout. Claims to dike reverberate with puns, etymologies, and double senses, as the pattern of violent revenge (dike) turns towards the order (dike) of the city.’ Goldhill (2000, p. 73). Cf. also: Wilson (2006, p. 198): ‘At the same time, in this play dikē proliferates in the sense of “case”, “plea” or “trial”—there are at least sixteen instances of this “new” meaning. This increased prominence of dikē in the sense of “legal trial”, and the term’s movement towards concrete realization in the Athenian court of the Areopagus, thus apparently go hand in hand with the decline of oblique dikēn and its entanglement of dikai.’.
Athena says to the Furies: ‘…I am the only god/who know the keys to where his thunderbolts are locked./We do not need such, do we? Be reasonable/and do not from a wreckless mouth cast on the land/spells that will ruin everything which might bear fruit.’ Aeschylus (1953, lines 827–831).
See note 19 above.
In Homo Sacer, Agamben argues against Negri that the sovereign is not just the head or steward of the political order but is, in fact, the constituting power that situates itself outside the order constituted by, and the power inherent in, any constitutional law. ‘If our analysis of the original ban-structure of sovereignty is exact, these attributes do indeed belong to sovereign power, and Negri cannot find any criterion, in his wide analysis of the historical phenomenology of constituting power, by which to isolate constituting power from sovereign power.’ Agamben (1995, p. 31; 2017, p. 39).
Though, even here, it is still not an oath about the facts of the case. Orestes’ oath is promissory, meaning it binds future conduct, not what is present or past. Clear to the end, no assertory oath appears in this work. He says: ‘I shall go home now, but before I go I swear/to this your country and to this your multitude/of people into all the bigness of time to be,/that never a man who holds the helm of my state shall come/against your country in the ordered strength of spears,/but though I lie then in my grave, I still shall wreak/hapless bad luck and misadventure upon all/who stride across the oath that I have sworn…’ Aeschylus (1953, lines 762–769).
Given the guarantee that all speech must be comprehensible, for instance, forces one into a problem of ‘interpretation’ whenever confronted with novel forms of talk. Either one does not (and perhaps may never, fully) understand the ‘true’ sense of another’s words, which tends toward linguistic nihilism, or all speech always must be true, in which case, it seems there will be no end to the chimeras in speech, and also no logos.
The Highest Poverty gives a mature solution, but one which seeks to situate the liberation of life, rather than speech, from the grasp of sovereignty. In the introduction, he writes: ‘the West must return ever anew to contend with it as its undeferrable task: how to think a form-of-life, a human life entirely removed from the grasp of the law and a use of bodies and of the world that would never be substantiated into an appropriation. That is to say again: to think life as that which is never given as property but only as a common use.’ Agamben (2013, p. xiii; 2017, p. 889).
‘…in magic the names of the gods taken in vain, especially if they are barbarian and unintelligible, become the agents of the magical work. Magic is the name of God—that is, the signifying power of the logos—emptied of its sense and reduced, as in the magical formulas known as Ephesia Grammata, to an abracadabra.’ Agamben (2011, p. 43; 2017, p. 333).
As Georg Luck writes: ‘The magus does not recognize sin; he is, in a way, above morality and the law, a law unto himself. In a society in which practically everyone believed in magic and practiced it in one form or another, this contempt for conventional morality and the laws of the state could have encouraged criminal behavior, but the reasons why magicians and astrologers—along with philosophers—were periodically discriminated against in the time of the empire were mainly political.’ Luck (2006, p. 35).
Kant is actually the thinker who comes closest to understanding the dilemma of the decisory oath, when he writes that many oath practices—while only ‘superstition’—are ‘indispensable for the administration of justice since, without counting on it, a court would not be sufficiently in a position to ascertain facts kept secret and give the right verdict. A law binding a people to take oaths is therefore obviously laid down only on behalf of the judicial authority.’ In accounting for the ‘magical power’ of the divine name, then, Kant shifts his attention to the declaratory oath as a way in which two incommensurate oaths can find mediation. While this may have been a fruitful path, he ultimately rejects the notion that a judge should compel the opposing parties to take any oath because it ‘is contrary to human freedom, which must not be lost…A judge therefore wrongs one whom he constrains to take such an oath.’ Kant (1991, §40, p. 119–120/304–305).
As he immediately notes, there is no record of this form of oath having been used in the public courts of Greece, though it is cited in the law of Gortyn (Cir. 499–450). In any case, its frequency is not important; it is only important that the decisory oath existed as the limit case of meaningful speech. It was a real possibility for speech outside of institutional norms, which is what concerns my thesis here. It cannot be considered a mere event of language over and against language itself, as the leading quote from Agamben claims. Plescia (1970, p. 13). Agamben perhaps should be familiar with this form of oath. Merryman and Pérez-Perdomo note: ‘The decisory oath remains in effect today in many countries (among them France, Italy, and Spain), although its use is primarily tactical.’ Merryman (2007, p. 120).
Agamben does consider the law of Gortyn—regarding scenarios in which two parties oath in contradiction to one another—though he interprets the decision passed to the judge as a sacramental operation, which he can do only by blending his Greek and Roman sources. Agamben (2011, pp. 60–61, 66; 2017, pp. 346–347, 350–51). As Kevin Robb notes, however, remaining with the Gortyn Code, we find that ‘two verbs, dikazein and krinein, are systematically used to describe separate aspects of this single magistrate’s duties. When one is used (dikazei, ‘he gives judgment’), the magistrate is never required to take an oath. When the other is used (krinei, ‘he decides’), he is always required to do so.’ Robb (1991). Krinein is the operation in effect when facing two decisory oaths, not two sacramenta, as Agamben implies. Neither is the oath taken by the judge who decides a sacrament. Robb says: ‘The magistrate is then, so to speak, on his own, but he is not for that reason free to become an arbitrary tyrant. That must be the purpose of the standard oath he takes, to assure that he acts as fairly as he can, sizing up the litigants and their claims governed by his innate sense of fairness. The wording of his oath, alas, is not given, but we may presume it was a “fairness” oath….’ Here, it seems, the judge decides with the power of his own speech, and not subject to a potential curse. On the use of the decisory oath to avoid coming before a judge at all, cf. Mirhady (1991).
By the time of Augustine, the Greco-Roman community had become thoroughly nomothetic. As Peter Brown writes: ‘It is here that we find a situation which has been observed to both foster sorcery accusations and to offer scope for resort to sorcery. This is when two systems of power are sensed to clash within one society. On the one hand, there is articulate power, power defined and agreed upon by everyone (especially by its holders!)…Running counter to this there may be other forms of influence less easy to pin down—inarticulate power: the disturbing intangibles of social life; the improbable advantages of certain groups; personal skills that succeed in a way that is unacceptable or difficult to understand. Where these two systems overlap, we may expect to find the sorcerer.’ Brown (1972, p. 124).
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Leib, R.S. I Nomi Degli Dei: A Reconsideration of Agamben’s Oath Complex. Law Critique 31, 73–92 (2020). https://doi.org/10.1007/s10978-019-09253-8
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DOI: https://doi.org/10.1007/s10978-019-09253-8