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
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.
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.
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.
* 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),

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