De justitio. Giorgio Agamben and the Suspension of Law in the Modern Era

• Author: Benjamin Lahusen
• Position: Is junior research group leader at the faculty of law of the Humboldt-Universität zu Berlin. The author is deeply indebted to Randi Goring, Paris, for her benevolent reading, her meticulous improvements and her empathic translation
• Pages: 35-40

LAHUSEN - DE JUSTITIO

ANCILLA IURIS 2020, 34 35 CC BY 4.0

The Justitium plays a central role in the work of the

Italian philosopher Giorgio Agamben. In his 2004

“State of Exception”, Agamben declared the Justi-

tium the “archetype of the modern Ausnahmezu-

stand”. The article tries to show how and why this

interpretation is wrong. A look at the history of

Roman law in the modern era reveals that the Justi-

tium is in fact not the anomic space Agamben

dreams of, but quite the contrary, the moment of the

greatest normative consolidation.

I.

THE JUSTITIUM: AN ANOMIC SPACE?

The Justitium plays a central role in the work of

Italian philosopher Giorgio Agamben. Derived from

the Latin terms ius and stare, this Roman-era mea-

sure was imposed during special circumstances –

usually the threat of war or public mourning – and

resulted not only in the closure of taverns, shops,

markets and the treasury, but also in a temporary

suspension of legal proceedings. In his State of

Exception, published in 2004, Agamben argues that

the Justitium is the “archetype of the modern Aus-

nahmezustand”. Agamben reaches this conclusion,

however, by summarily equating the suspension of

forensic activity – which a Justitium undeniably

entailed – with the suspension of the entire law:

according to Agamben, in times of the greatest

internal or external danger, such as wartime or

during a civil war, Rome purportedly instituted a

kind of Machiavellian precursor to the state of

emergency (Notstandslehre), preferring to repeal

the entirety of the law than to break individual laws.

In other words, the argument goes, where the public

interest could not be maintained by traditional legal

means, the entire legal system was simply pushed

aside and replaced by acts of expediency. Hence, the

Justitium was actually a suspension of the law

itself. Furthermore, as the old Justitium was the

prototype for everything that came after, it follows

that the state of exception (Ausnahmezustand) as a

whole was not a “pleromatic” but a “kenomatic

state”, not a moment of dictatorial “fullness of pow-

ers”, but on the contrary, an “emptiness and stand-

still of the law”.1

It may well be that one of Livius’s formulations

inspired Agamben’s thinking. Livius writes in his

report on the defeat in the battle with Veius in the

year 426 B.C. that great terror reigned in Rome;

armed men were stationed on the walls and a Jus-

tititium closed taverns and forums, so that finally

“omnia castris quam urbi similiora”.2 In a state of

emergency, Rome resembled more a camp than a

city: this choice of words must have exerted an irre-

sistible power of suggestion over Agamben, the

great camp theorist. In any case, Agamben sees in

the Justitium a total state of emergency, a com-

pletely anomic space that is not polluted by any

legal agenda and therefore permits a truly political

act – a moment that Agamben, with a certain ten-

dency towards histrionics, calls “life itself”.

With this reconstruction, Agamben essentially

rejects all Romance literature on the subject, with

one exception. He has found one source to support

his interpretation: Adolph Nissen, a Professor of

Criminal Law who joined the Kaiser Wilhelm Uni-

versity in Strasbourg in 1873. In 1877, Nissen pub-

lished a treatise on the Justitium in which he ulti-

mately argues – in literary terms, of course, just as

isolated – that the Justitium was a suspension of

the entire legal system, used during the times of the

Republic to effectively counter internal turmoil

without conflicting with the rights of its citizens to

be protected from the state (Abwehrrecht). Because

the citizens in the empire had seen their right of

defense (Abwehrrecht) becoming more and more

pared down, the scope of application of the Justi-

tium had also continuously narrowed until only a

few insignificant regulatory measures remained.

This tapering, however, was the one that later gen-

erations had anachronistically projected back to

the Roman Republic;3 a misunderstanding that, one

may add, found its much needed correction only in

Nissens’s own work.

II.

THE JUSTITIUM AT THE

REICHSKAMMERGERICHT

There is not much to suggest that this interpreta-

tion of Roman law is correct.4 But that is beside the

point. Furthermore, it should not be about Roman

law, but about the history of Roman law; specifi-

cally: about the way in which the Justitium was

received and shaped in modern times. This process

is epitomized by a Justitium that occurred at the

Reichskammergericht in 1688.

1

* Dr. Benjamin Lahusen is junior research group leader at the faculty of

law of the Humboldt-Universität zu Berlin. The author is deeply indeb-

ted to Randi Goring, Paris, for her benevolent reading, her meticulous

improvements and her empathic translation.

1Giorgio Agamben, State of Exception. Translated by Kevin Attell (Chi-

cago 2004). All quotes from Chapter 3 Iustitium, 41–51.

2Livius, Ab urbe condita, 4, 31, 9.

3Adolph Nissen, Das Justitium. Eine Studie aus der römischen Rechtsge-

schichte (Leipzig 1877).

4Cf.: Theodor Mommsen, Römisches Staatsrecht, Volume 1. 2nd edition

(Leipzig 1876), 250–253; Wolfgang Kunkel/Roland Wittmann, Staats-

ordnung und Staatspraxis der römischen Republik, Zweiter Abschnitt

(München 1995), 225ff.; finally – but not accorded preference over

Mommsen and Kunkel – Gregory Golden, Crisis Management During the

Roman Republic. The Role of Political Institutions (Cambridge 2013),

87–103.