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1 Spurius Maelius: Dictatorship and the Homo Sacer Michèle Lowrie University of Chicago In Livy’s version of the Spurius Maelius story, a state of emergency prevents sedition: Cincinnatus is appointed dictator and his master of the horse, Servilius Ahala, kills Maelius for aspiring to kingship (adfectatio regni). The addition of the dictatorship tames an earlier version attributed to Cincius Alimentus and Calpurnius Piso where the senate enjoins Servilius to slay the tyrant without due process. Mommsen 1879: 206-7 calls it morally offensive that any citizen can kill outside the forms of justice any other citizen he holds guilty of aspiring to kingship,i yet the earlier version obeys the logic of the homo sacer (sacred/accursed man) and reveals a dirty secret about sovereignty: the state is at liberty to kill its own citizens who pose a threat. The story’s revision folds state violence into the rule of law. This paper asks what message Livy’s telling of the revised version conveys at the beginning of Augustus’ rule after a century of civil war. The legitimacy of any constitutional or extra-constitutional mechanism for suspending the rule of law to safeguard the state is of clear interest in the United States today, where the relative value of citizen rights, the rule of law, and security has been hotly contested since 9/11. Books 2 through 5 of Livy document a class struggle in which the senatorial party constantly postpones citizen rights for reasons of security: ‘The Volsci are coming!’ii A certain amount of citizen violence at Rome was the price of republican institutions.iii Although the Romans distinguished carefully between fullfledged civil war and sedition, similar issues attend each. All civil disturbances raise the 2 question of the governmental forms structuring violence against and between citizens, or citizen violence against the state. Furthermore, ancient historians saw the seeds of civil war in sedition.iv Stories of thwarted sedition are as exemplary for state violence at Rome as those where it erupted. The Maelius story is informative for narrative and for constitutional questions because of the addition of the dictatorship to justify killing a citizen.v Although Livy is probably not this version’s author, it nevertheless, like all stories when retold, adapts conventional material to contemporary attitudes.vi It particularly reveals a desire to contain state violence within the purview of the law understood as standing constitutional structures. Livy had lived through civil war and eventually saw Augustus radically remake the constitution while preserving its form. Unlike Sulla and Julius Caesar, who both became dictator when they emerged victorious from civil war, Augustus signally did not. His predecessors had exhausted this office and Mark Antony banished it after Caesar’s assassination. Thinkers in this period understandably wanted to regularize the violent relations between citizens and the state through the law, but the Augustan solution was itself hardly constitutionally regular and the extent to which the principate was contained within the law is fiercely debated still today. Stories about the relation between citizens, state violence, and the rule of law reveal the cultural attempt to cope with the legacy of the civil wars and the new political realities in their wake. The exemplum is a central figure of thought in Roman culture and the Maelius story helps contemporaries understand the political order. Augustus himself manipulated the exemplum masterfully in his establishment of a new order under old forms.vii This topic is larger than I can address here, but the claim to restore the old is a legitimating 3 strategy for both narrative and politics. Since Cicero uses Maelius to justify violence against Catiline (Cat. 1. 3),viii this story is a lens onto Roman thought about sedition and violence against citizens. Chassignet 2001: 87, 93 argues that this story, together with those of Spurius Cassius and Marcus Manlius, which Cicero and others joined together, was particularly salient from the Gracchi to Livy and Dionysius of Halicarnassus, but faded out afterwards. This story was told and readapted precisely during the period of civil war. The particular ideological node Livy explores with Maelius is how a state can meet a threat from within without undermining the existing form of government. One of the problems with the state of emergency is that there needs to be a way back to the rule of law once the disorder has been quelled. This is one of a number of stories Livy tells about early Rome where a temporary suspension of the law passes through a crisis point and the law is reinstated afterwards. Maelius is often discussed in relation to the adfectatio regni (aspiration to kingship) of Spurius Cassius and Marcus Manlius Capitolinus,ix but other stories also show similar concerns about the suspension of the rule of law under various constitutional structures. For instance, the constitution is suspended for the decemvirs to write the Twelve Tables and they are subsequently overthrown when they over-stayed and over-reached their mandate. With Maelius, the dictatorship allows for the suspension of the regular laws and their successful reinstatement.x As the dictatorship is a canonical republican office, it is debatable whether the rule of law is entirely suspended in this story. Cincinnatus handles the dictatorship well, he justifies the otherwise unlawful slaying of Maelius as a threat to the state, and he sets the dictatorship down once the crisis is controlled. Furthermore, 4 Maelius’ acts can be characterized as posing a particular kind of threat, regnum (kingship or rule), that Livy has earlier explained results in the suspension of citizen rights. Commentators identify Maelius as a homo sacer, a man who can be killed without the killer becoming a parricide.xi By aspiring to regnum, he forfeits his rights to state protection. This is a model crisis in that both the nature of the threat (adfectatio regni) and the mechanism for solving it (dictatorship) both entail a legal mechanism for suspending the law. Livy offers a paradigmatic instance when killing a citizen without due process is perfectly legitimate. Restoration of the rule of law after a state of emergency may seem self-evident, but what are the stakes? Two things are clearly relevant to a state emerging from civil war: who controls sovereignty and the protection of citizen life and liberty. Giorgio Agamben has theorized these issues together in Homo Sacer and State of Exception. Relevant for Livy’s Maelius – independently classified as homo sacer – is that Agamben deploys Paulus Festus’ definition of this archaic Roman figure. Festus’ definition goes back to Verrius Flaccus, the antiquarian tutor of Augustus’ grandsons, who wrote a lexicon treating ‘rare and obsolete words’ (OCD under Verrius Flaccus). The homo sacer was as archaic a figure for the Romans of Augustus’ times as for us; nevertheless, it has proven ‘good to think with’ for Agamben in analyzing modern structures of sovereignty and I find it useful for understanding Augustan Rome (Lowrie 2007). I focus on the intersection of the homo sacer and the dictator and limit my analysis here to Maelius, but hope to return to Spurius Cassius and Marcus Manlius in the future. This paper has four sections: a summary of Agamben’s theory of sovereignty and the homo sacer; a reading of the Maelius story according to this theory; an analysis of 5 whether the dictatorship is truly a constitutional exception; some questions about Augustus. The sovereign and the homo sacerxii Agamben sees a telling parallel between the sovereign and the homo sacer: 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 define the legal sphere negatively through their reciprocal exception from it. They also reveal the ugly side of sovereignty’s say over the life of citizens. Agamben relies on Carl Schmitt’s idiosyncratic definition of the sovereign as ‘he who decides on the state of exception’ (Political Theology 1985: 5). 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 existing legal structures. 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 6 the legal power to suspend the validity of the law, legally places himself outside the law. Agamben (1998: 15; his ‘emphasis added’)xiii 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 cites Verrius Flaccus’ definition,xiv which addresses the killing of citizens. But the sacred/accursed man (homo sacer) is he, whom the people has judged (populus iudicavit) because of an evil deed; and it is not right according to divine law (fas) for him to be sacrificed (immolari), but he who kills him is not condemned of murder (parricidi); 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 (parricida)’. From this every evil and dishonest man is accustomed to be called sacred/accursed. Agamben locates the paradox of the homo sacer in a political structure ‘prior to the distinction between sacred and profane, religious and juridical’ (1998: 74), and makes a bold link between the homo sacer and the political sphere of sovereignty, ‘which takes the form of a zone 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, 7 life that may be killed but not sacrificed – is the life that has been captured in this sphere. Agamben 1998: 83, his emphasis Both citizens and states may pass into a state of exception, which in turn according to this theory defines the political order. Spurius Maelius, homo sacer Livy’s Maelius narrative dramatizes the conflict between citizen rights and government security by opposing two laws established and presented in tandem at the inception of the Roman republic: ante omnes de prouocatione aduersus magistratus ad populum sacrandoque cum bonis capite eius qui regni occupandi consilia inesset gratae in uolgus leges fuere. Above all, the law of appeal to the people against the magistrates and the law about cursing the head and property of anyone who plots to seize kingship were pleasing to the populace. Livy 2.8.2 Maelius as a private equestrian takes popular measures to relieve the grain supply and plots to seize kingship (‘de regno agitare’, 4.13.4), so that he falls under the second law mentioned at 2.8.2, even though Livy does not explicitly say this action made him sacer. 8 His plan is reported to the senate, which laments the consuls’ inactivity. Titus Quinctius makes a speech as consul that identifies the law of appeal as a constraint on the consuls. tum Quinctius consules immerito increpari ait, qui constricti legibus de prouocatione ad dissoluendum imperium latis, nequaquam tantum uirium in magistratu ad eam rem pro atrocitate uidicandam quantum animi haberent. opus esse non forti solum uiro sed etiam libero exsolutoque legum uinclis. itaque se dictatorem L. Quinctium dicturum; ibi animum parem tantae potestatis esse. Then Quinctius says the consuls are unfairly reproached because they are hampered by the laws of appeal passed for the purpose of dissolving supreme command, that they had less strength in the magistracy to avenge this matter as its atrocity deserved than they had spirit. A man not only brave was needed, but free and unhampered by the laws’ chains. Therefore he would name Lucius Quinctius [Cincinnatus] dictator: there was a spirit equal to such great power. Livy, 4.13.11-12 Whether or not the dictatorship was actually free from the restraint of law, and this is disputed,xv Livy’s formulation attributes that belief to a consul. Cincinnatus is approved as dictator and the story further dramatizes the extent of the law’s reach. Cincinnatus appoints Seruilius Ahala master of the horse. When Ahala calls Maelius to answer to the dictator, he flees and Ahala kills him. Cincinnatus as dictator congratulates Ahala for his uirtus ‘manly courage’ in freeing the Republic (Tum dictator ‘Macte uirtute,’ inquit, ‘C. 9 Seruili, esto liberata re publica,’ Livy 4.14.7). A crisis point is reached: the populace begins revolting. Cincinnatus quells the uprising with a speech explaining why Maelius was killed iure (according to the law, 4.15.1). Cincinnatus uses two arguments, each corresponding to the laws coupled by Livy. First, even if Maelius were innocent of aspiring to regnum, he was killed lawfully because he refused a dictator’s summons. Had he answered the summons, been tried and found guilty, he would presumably then had the right to appeal, but this argument is not made. Cincinnatus assumes that a dictator’s summons trumps a citizen’s right to appeal. Thiss accords with the consul’s naming a dictator explicitly to circumvent the law of appeal. Cincinnatus then assumes Maelius was guilty of aspiring to regnum and therefore had lost his citizen rights: nec cum eo tamquam cum ciue agendum fuisse, qui natus in libero populo inter iura legesque (‘nor could one treat him as if he were a citizen, who was born in a free people among rights and laws,’ 4.15.3). Although he does not say sacer, his language masks the concept: non pro scelere id magis quam pro monstro habendum, nec satis esse sanguine eius expiatum, nisi tecta parietesque intra quae tantum amentiae conceptum esset dissiparentur bonaque contacta pretiis regni mercandi publicarentur. And this should not be considered so much a crime as a monstrosity, nor could expiation be made sufficiently with his blood, unless the roof and walls within which such insanity was conceived were razed and his possessions, which have 10 been contaminated at the price of merchandizing rule, were put up for public auction. Livy, 4.15.7-8 The combination of death and publication of property reveals that consecratio is at issue. When Livy defines tribunician sacrosanctity, he specifies that the one who harms a tribune would ‘have his life (caput) sacred to Jupiter, his household (familia) would be sold at the temple of Ceres, Liber, and Libera’ (eius caput Ioui sacrum esset, familia ad aedem Cereris Liberi Liberaeque uenum iret, 3.55.7). Maelius’ house was duly torn down and the open space became a monument called the ‘Aequimaelium’. The slippage between the two arguments more than either argument in itself demonstrates Agamben’s parallel between the sovereign, whose position above the law becomes evident in a state of emergency, and the homo sacer, who becomes exempt from its protection. Maelius’ death is overdetermined. The dictatorship may be above the law only temporarily and we address below whether this office works according to Agamben’s conception of sovereignty, but the structure momentarily allows a single person to decide on the life of citizens regardless of the laws protecting their rights. The suspension of the right to appeal accompanies the treatment of a threat to the state as a homo sacer. While the two laws originally conjoined at Livy 2.8.2 both aim to protect the republic, the first in giving citizens rights, the second in safeguarding against the restoration of kingship, in practice, one comes at the expense of the other. That is the paradox and the price of Republican government. 11 Dictatorship and the State of Exception Agamben adopts Schmitt’s technical term for state of emergency: state of exception. This is a situation not foreseen by a state’s constitution and therefore challenges available legal provisions. For Agamben, the Roman republican dictatorship does not qualify as a state of exception: it is a preexisting magistracy meant to handle situations sufficiently volatile that a temporary suspension of legal limitations appears necessary to the governing bodies.xvi Schmitt calls this sort of dictatorship ‘commissarial’ because the constitution remains intact despite its provisional suspension.xvii Forms already exist for establishing a dictator: he is appointed by a magistrate and approved by the senate. Livy marks senate approval of Cincinnatus with ‘adprobantibus cunctis’ (with all approving, 4.13.12), language that tellingly matches Augustus’ claim about the universal consensus meeting his own control of affairs after the civil wars (‘per consensum uniuersorum’, Res gestae 34). I return to Augustus below. The dictatorship, at least before Sulla’s extended appointment and Caesar’s in perpetuo, was also short-term – six months maximum. Sulla, dictator from 82-79 BCE, at least set the office aside after achieving his mandate, rei publicae constituendae (‘to constitute the state’).xviii The dictatorship was originally devised against foreign threats but was also used against internal disturbance.xix Maelius’ story is Livy’s first instance of a dictator appointed for an internal disturbance who actually used violence against a citizen.xx The dictatorship here keeps from the less regulated framework of the state of exception. Another feature disqualifying Maelius’ story as a narrative of a state of exception is that consecratio is enshrined in law, as Livy describes at 2.8.2. Cincinnatus’ argument that Maelius was 12 killed iure, that is, within the law, underscores the law’s continued operation even under the dictatorship. I have two partial critiques, one of Agamben, one of Livy (or his source). Agamben’s understanding of the Roman dictatorship is excessively formalistic. He sees the real threat in what Schmitt calls the ‘sovereign dictatorship’, where the constitution’s form is at risk. The problem is that the one opens the door to the other. This he recognizes for modern times, but overlooks it as a problem at Rome.xxi Agamben rightly critiques Schmitt for underplaying the potentially disruptive power of a magistracy whose premise resides in the law’s suspension, whether temporary, constitutional, formally regular etc. Sulla’s and Caesar’s extended and Caesar’s multiple dictatorships paved the way to Caesar’s eventual sovereign dictatorship and the Augustan principate. Schmitt’s nice theoretical difference makes too strong a distinction: once the law is provisionally suspended, it establishes the potential for staying so. Kalyvas 2007 argues that the Romans were blind to the tyrannical potential of the dictatorship, because it formed part of the mos maiorum ‘customs of the ancestors’, but that the Greek historians Dionysius of Halicarnassus and Appian anticipate modern worries and see this Roman office through the Greek category of the tyrant. The Greek word is certainly useful for making the distinction and, in fact, as Gildenhard shows, Cicero takes recourse to the Greek words ‘tyrant’ and ‘tyranny’ in discussing Caesar.xxii A weakness of the republican constitution is that the Romans based their understanding of sovereignty on kingship.xxiii The power of the king is imperium and the various republican mechanisms for assigning or distributing imperium could always revert to a surrogate king. Despite the Romans’ hatred of the word rex ‘king’, consular 13 imperium was understood as kingly power checked by collegiality and term limits. Livy remarks that ‘You could count the origin of liberty, however, more from consular imperium being made annual than because anything was reduced from kingly power (potestas)’, (‘libertatis autem originem inde magis quia annuum imperium consulare factum est quam quod deminutum quicquam sit ex regia potestate numeres’, 2.1.6). Further limitations were the right of appeal, the tribunician veto, and their sacrosanctity. The dictatorship normally had a shorter term limit (six months), but no limitations through collegiality, and furthermore overrode, at least in Livy’s Maelius story, the right of appeal.xxiv Agamben’s larger concern is with the ‘regularized state of exception’ – a paradox whereby exceptional arrangements, by definition temporary, become the regular constitution, although the fiction is that the old constitution still operates. This contradiction usefully describes a state of limbo such as the extension of a dictator’s imperium beyond constitutional time limits and can also clarify how Augustus eventually changed the Roman constitution, although there is no space for detailed analysis here. Rome repeatedly reverted to monarchy, with Augustus permanently. Perhaps only from a republican perspective does the Augustan principate look like a regularized state of exception. Although we might think of the republic as reverting to kingly imperium, Agamben’s formulation comes closer to how the Romans understood their own imperial system. Livy’s version of the Maelius story cleans things up considerably.xxv Dionysius of Halicarnassus, after telling a version consonant with Livy’s, preserves an older version of the story told by Cincius Alimentus and Calpurnius Piso he thinks less likely. This 14 alternative version adheres better to the homo sacer pattern than does Livy’s.xxvi When the senators heard the report about Maelius, one of them made a motion to kill him without trial (ἄκριτον ἀποκτεῖναι τὸν ἄνδρα, 12. 4. 3). This was accepted and they entrusted the task to Servilius. He stabbed Maelius to death with no charge, no explanation, no meaningful verbal exchange. Servilius ran back to the senate, pursued by men bent on stoning him. Servilius announced he had destroyed the tyrant (τὸν τύραννον, 12. 4. 4) by order of the senate. Here, as in Cicero’s version of the killing of Tiberius Gracchus, the murderer was privatus. Anyone can kill the homo sacer.xxvii I argue elsewhere that Verrius Flaccus’ specified need for adjudication by the people is an Augustan age regularization of an older and legally hazier notion (Lowrie 2007: 37-8). In Cincius, the senate makes the sovereign decision. By contrast, Livy sets up a complex political apparatus that contains the state killing within the law. Magistrates killed a citizen without due process, but they had the majesty of the dictatorship (dictatoriam maiestatem, 4.14.2) to justify them. I see two symptoms of forcing interpretation:xxviii Cincinnatus’ overdetermined argument about the killing’s legalityxxix – one argument should be enough – and his obfuscation in calling Maelius a monstrum. This word heightens the religious awe surrounding the homo sacer. Verrius Flaccus’ definition (quoted above) is dry and legal. He records several layers of law-making that set the category in place: a plebiscite, the tribunician law, a judgment of the people (Lowrie 2007: 36). The correspondence of these layers to historical reality is dubious, but he represents a category supported by law. Although Livy could have recourse to his earlier account of the law about the consecratio of anyone who aspires to regnum, he chooses a mystifying route with monstrum, which magnifies Maelius’ sins. 15 The result is a story about a perfectly legal and well-managed state of emergency against a religious threat. The homo sacer as defined by Flaccus cannot be sacrificed, but the monstrum needs and gets expiation (expiatum, 4.15.7). Livy’s narrative stacks the cards against Maelius by minimizing the danger of the suspension of the rule of law. Like Schmitt, he tries to keep the commissarial dictatorship under wraps. Andrew Lintott argues the revision of the Maelius story came shortly after the death of Tiberius Gracchus, because some questioned its legality.xxx The opponents of Gracchus argued by Maelius’ exemplum that anyone could kill the threat to the state as a priuatus, while his supporters countered that Maelius was killed under dictatorial imperium, which did not supply a justificatory parallel. The changes to the Maelius story make it less an exemplum for Tiberius’ treatment by removing the parallel that both were killed by a privatus and by containing Maelius’ death within the law. This is a nice reconstruction, but there were any number of moments in the period between the Gracchi and Actium when some would have wanted to regularize archaic history. The dictatorship was not used against either Gracchus and since Linderski (2002) argues that Tiberius’ death was a consecratio, the parallel between Tiberius and the earlier version of the Maelius story is especially strong. The dictatorship may have been insterted into the story with Sulla or Caesar.xxxi Since the attempt to regularize Gaius Gracchus’ killing was the senatus consultum ultimum and Cicero used Maelius and the Gracchi as exempla during and after the Catilinarian conspiracy (more below), the central question is whether there were constitutional means to check sedition rather than the particular nature of the means.xxxii Chassignet (2001: 91-2) shows that the three stories about adfectatio regni by Spurius Cassius, Spurius Maelius, and Marcus Manlius, reveal processes of 16 regularization legitimating tyrannicide. Caesar incidentally occupied both positions: he was dictator, but also was assassinated for aspiring to regnum. If Livy did not himself revise Maelius’ story – something we cannot know – he was among those who favored the rule of law. Some Augustan questions The Maelius story is disturbing on its own, but it was also exemplary.xxxiii Roman stories had life or death consequences for citizens: the exemplum carried pragmatic force. Cicero mentions Maelius in praeteritio at the beginning of the first Catilinarian as one example among others justifying violence to protect the state. He emphasizes the exempla supporting his use of the senatus consultum ultimum (Gaius Gracchus and Saturninus) more than Maelius, who was too archaic. But if we lay aside the particular mechanism for suspending the rule of law – to whatever degree and for however long – these situations occupy a similar mental space in that all entail protecting the state against a perceived internal threat by suspending citizen rights (trial before the people, appeal).xxxiv Cincinnatus hails Gaius Seruilius as a liberator of the republic and justifies Maelius’ loss of citizen rights on the basis of his aspiring to rule despite having been born ‘in a free people among rights and law’ (4.15.2). The violence at issue in these situations is what Benjamin in his Critique of Violence calls law-preserving violence.xxxv It is paradoxical that the state of exception must break the law in order to preserve it. I would maintain that frequently repeated instances of law-preserving violence eventually undermine the law it means to preserve. This is why even a commissarial dictatorship is 17 more dangerous than might appear theoretically. But what are the Augustan consequences of revising the Spurius Maelius story as Livy tells it? Depending on how we think Livy viewed Augustus, specifically, whether Livy saw Augustus as upholding or destroying the rule of law, his version of the Maelius story either supports or critiques an Augustan mystification. Either way, the story reinforces the value of the rule of law and to that extent supports Augustan ideology once his rule was established.xxxvi We generally say that Augustus came to power after a century of civil war, but not all instances of civil disturbance between the Gracchi and Actium belong to the same kind, either in the violence entailed, or in their constitutional consequences. Still, the Gracchi, Gaius more than Tiberius, Sulla, Caesar, perhaps even Catiline, were all interested in constitutional restoration or reform. The violence they perpetrated or received was either law-making or law-preserving. They all came to or brought grief through states of emergency. While Sulla and Caesar used the dictatorship to put pressure on the constitution, the senate fought back against the Gracchi, Catiline, and Caesar with the Senatus consultum ultimum. The challenge facing Augustus was to establish stability – to quell the eruption not merely of violence, but of states of exception, during which violence against citizens was the ugly price to pay for constitutional continuity. This is not the place for a Schmittian analysis of Augustan sovereignty. I think this perspective is useful, if not sufficient for analyzing the relation between auctoritas and potestas that Augustus presents as central to his own power in the Res gestae. Magisterial power resides in potestas, which lies within constitutional confines, but auctoritas has a more complex relation to the constitution understood as the conventional 18 way of doing things. The senate’s authority is institutionalized and that of individuals conventional, but the auctoritas of a powerful man exceeds his potestas as a magistrate. The two kinds of power in combination correspond well to Schmitt’s understanding of the sovereign position as lying both inside and outside the law. Given that the Roman constitution was not based on the law, but on convention enshrined in institutions, to revise this thought for Rome would mean saying that the sovereign position lies both inside and outside the uncodified constitution. Agamben 2005: 74-88 makes a start toward analyzing Augustus in the final section of State of Exception. His analysis, however, does not account for Augustus’ imperium, the basis of power Augustus fails to mention in the Res gestae. Furthermore, he omits the people’s role in the new constitution. Useful to Augustan ideology in Livy’s Maelius story is the notion of liberating the Republic through a state of exception, where all moves by the state can be characterized as legal, while the opponent is transferred outside legal protection. The Augustan principate and many of the stories told during this period show the Romans were thinking about the relation of sovereignty to citizen rights in terms of the law, regardless of where any particular solution might come down. Further useful for Augustan ideology is the opponent’s coloration with the aura of divine transgression. He is a monstrum, and the site of his destroyed house becomes a monument called the Aequimaelium.xxxvii Presumably, it is a flat place, but the name also suggests justice was done.xxxviii Augustus’ very name is conversely colored with the aura of divine sanction. What Augustus did that was so clever from the point of view of sovereignty as outlined by Agamben was not only to avoid dictatorship, but also to harness 19 sacrosanctity. His return of the res publica to the SPQR (senatus populusque Romanus) (Res gestae, 34.1) meant that he could not be accused of aspiring to regnum and would consequently not become himself vulnerable to assassination as a homo sacer. He learned from Caesar’s exemplum. Furthermore, by acquiring tribunician sacrosanctity, he was himself protected from a potential assassin, who would risk becoming sacer. Structurally, consecratio against those aspiring to regnum protected the senatorial elite’s ability to share governance among themselves, while the consecratio of those harassing the tribunes protected the plebs. The two kinds balance each other out in a specifically republican form of sovereignty. Augustus managed to institute a new form of permanent state of exception that circumvented the republican weaknesses while co-opting its protections. He put himself in a position where he could be aligned neither with Cincinnatus as dictator nor with Maelius as homo sacer, though he managed to acquire many of the former’s powers without the latter’s vulnerability. Livy’s Maelius story reveals Augustan sovereignty through negation.* References Agamben, G. (1998) Homo sacer: Sovereign power and bare life, trans. Daniel HellerRoazen. Stanford ------ (2005) State of exception, trans. K. Attell. Chicago and London Badian, E. (1979) ‘Additional notes on Roman magistrates’, Athenaeum 48: 8-14 Benjamin, W. (1978) “Critique of violence”, in Reflections, ed. P. Demetz, trans. E. Jephcott. New York: 277-300 (originally published in 1921) 20 Brennan, T. C. (2004) ‘Power and process under the republican “constitution”’, in Flower (2004): 31-65 Chassignet, M. (2001) ‘La “construction” des aspirants à la tyrannie: Spurius Cassius, Spurius Maelius et Manlius Capitolinus’, in M. Coudry and T. Späth (eds.) L’invention des Grands Hommes de la Rome antique. Paris: 83-96 Connolly, W. (2007) ‘The complexities of sovereignty’, in M. Calarco and S. DeCaroli (eds.) Giorgio Agamben: Sovereignty and Life. Stanford: 23-42 Cornell, T. J. (1986) ‘The value of the literary tradition concerning archaic Rome’, in K. A. Raaflaub, ed., Social struggles in archaic Rome: New perspectives on the conflict of the orders. Berkeley: 52-76 Fiori, R. (1996) Homo sacer: Dinamica politico-constituzionale di una sanzione giuridico-religiosa. Naples Flower, H. (ed.) (2004) The Cambridge companion to the Roman republic. Cambridge Forsythe, G. (1994) The historian L. Calpurnius Piso Frugi and the Roman annalistic tradition. Lanham ------ (2005) A critical history of early Rome. Berkeley Frier, B. W. (1985) The Rise of the Roman jurists: Studies in Cicero’s pro Caecina. Princeton: Princeton University Press Gildenhard, I. (2006) ‘Reckoning with tyranny: Greek thoughts on Caesar in Cicero’s Letters to Atticus in early 49’, in Lewis (2006): 197-209 Glinister, F. (2006) ‘Kingship and tyranny in archaic Rome’, in Lewis (2006): 17-32 Harrington, J. (1977) The model of the commonwealth of Oceana in J. G. A. Pocock (ed.), The political works of James Harrington. Cambridge 21 Hinard, F. (1988) ‘De la dictature à la tyrannie: reflections sur la dictature de Sylla’, in F. Hinard (ed.) Dictatures. Paris Kalyvas, A. (2007) ‘The tyranny of dictatorship: When the Greek tyrant met the Roman dictator’, Political Theory 35.4: 412-42 Koschorke, A. (2007) ‘Erfundene Gründung. Livius’ Rom’, in A. Koschorke, S. Lüdemann, T. Frank, E. Matala de Mazza, Der fiktive Staat: Konstruktionen des politischen Körpers in der Geschichte Europas. Frankfurt/M: 15-35, 47-54 Linderski, J. (2002) ‘The pontiff and the tribune: The death of Tiberius Gracchus’, Athenaeum 90: 339-66 Lewis, S. (2006) Ancient tyranny. Edinburgh Lintott, A. (1970) ‘The tradition of violence in the annals of the early Roman republic’, Historia 19: 12-29 -------(1999a) Violence in republican Rome. Oxford ------- (1999b) The constitution of the Roman republic. Oxford Lowrie, M. (2005) ‘Vergil and founding violence’, Cardozo Law Review 27: 945-76 ------ (2007) ‘Sovereignty before the law: Agamben and the Roman republic’, Law and Humanities 1.1: 31-55 ------ (2009 forthcoming) Writing, performance, and authority in Augustan Rome. Oxford ----- (forthcoming) ‘Rom immer wieder gegründet’, trans. of ‘Refoundation at Rome’, in B. Vinken et al. (eds), Übertragene Anfänge. Machiavelli, N. (1996) Discourses on Livy, trans. H. C. Mansfield and N. Tarcov. Chicago 22 Martin, P.-M. (1990) ‘Des tentatives de tyrannies à Rome aux Ve-IVe siècles?’ in W. Eder (ed.), Staat und Staatlichkeit in der frühen römischen Republik, Stuttgart: 49-72 Millar, F. (2002) The Roman republic in political thought. Hanover and London Moatti, C. (1997) La raison de Rome. Paris Mommsen, T. (1879) ‘Spurius Cassius, M. Manlius, Spurius Maelius, die drei Demagogen der älteren republikanischen Zeit’, in Römische Forschungen, vol. 2, Berlin: 153-220 OCD = The Oxford classical dictionary, eds. S. Hornblower and A. Spawforth. Oxford 1996, 3rd edition. Ogilvie, R. M. (1965) A commentary on Livy books 1-5. Oxford Peachin, M. (1996) Iudex vice Caesaris: Deputy emperors and the administration of uustice during the principate. Stuttgart Pettit, P. (1997) Republicanism: A theory of freedom and government. Oxford Raaflaub, K. (2006) ‘Between myth and history: Rome’s rise from village to empire (the eighth century to 264)’, in N. Rosenstein and R. Morstein-Marx (eds.), A companion to the Roman republic. Blackwell: 125-46. Schmitt, C. (1985) Political theology: Four chapters on the concept of sovereignty, trans. George Schwab. Cambridge, Mass. (orig. publ. 1922, revised 1934) Smith, C. (2006) ‘Adfectatio regni in the Roman republic’, in Lewis (2006): 49-64 von Ungern-Sternberg, J. (2004) ‘The crisis of the republic’, in Flower (2004): 89-109 Webster, D. (1851) ‘First settlement of New England’, in The works of Daniel Webster, vol. 1. Boston 23 Weinstock, S. (1971) Divus Iulius. Oxford Wiseman, T. P. (2009) ‘The ethics of murder’, in Remembering the Roman people. Oxford i Wiseman 2009 addresses this issue directly. ii Some argue the plebs sought not power but security and protection from oppression, Pettit 1997: 27, Millar 2002: 146. iii Lintott 1999a. This idea has a long history. Machiavelli Discourses on Livy 1. 4; 1996: 16-17 judges the violent tumult of the republic as ultimately beneficial to ‘public freedom’. James Harrington 1977: 155 sees Romulus’ institution of the patrician order as resulting in ‘two commonwealths, the one oligarchical in the nobility, and the other a mere anarchy of the people, which thenceforth caused a perpetual feud and enmity between the senate and the people, even to death’. Daniel Webster 1851: 41 attributes conflict in the Roman republic to a failure of balancing liberty: ‘Her constitution, originally framed for a monarchy, never seemed to be adjusted in its several parts after the expulsion of the kings. Liberty there was, but it was a disputatious, an uncertain, an ill-secured liberty. The patrician and plebeian orders, instead of being matched and joined, each in its just place and proportion, to sustain the fabric of the state, were rather like hostile powers, in perpetual conflict’. Pettit 1997 considers contestation the hallmark of liberty (63). How to keep contestation from devolving into violence? 24 iv Velleius Paterculus 2. 3. 3-4, Appian BC 1. 55, 1. 60: ‘Thus the seditions (στάσεις) progressed from strife and competition to murder and from murder to out and out warfare (πολέμους ἐντελεῖς)’; von Ungern-Sternberg 2004: 92. v Mommsen 1879: 218-19 distinguishes this story from those about Spurius Cassius and Marcus Manlius stories as having less historical basis and a different genealogy. Discussion below, nn. 25-6, 28-32. vi Koschorke 2007: 52 calls Livy’s history ‘Retrofiktion’, but Lintott 1970: 12-13 argues that the tradition is old and therefore revelatory of early republican violence. vii See Lowrie 2009 forthcoming: ch. 12. viii See Smith 2006: 60-1 for exemplarity as ‘a profound motivation in the Roman mentalité’. ix Mommsen 1879; Ogilvie 1965: 551; Lintott 1970; Martin 1990 charts similarities (51- 2); Chassignet 2001; Smith 2006; Wiseman 2009: 185. x Forsythe 1994: 309-10 is basic on the insertion of the dictatorship. Cornell 1986: 58 describes Roman historiography as a ‘process of continuous transformation as each generation reconstructed the past in its own image.’ xi Ogilvie 1965: 550; Fiori 1996: 396. Martin 1990: 67-8 groups the stories about adfectatio regni under the rubric of sacertas or consecratio capitis (consecration of citizen rights). xii Reduced from Lowrie 2007: 34-6, where I critique Agamben more systematically. Schmitt’s notion of sovereignty, outlined below, goes against conventional definitions of sovereignty, which locate it rather in the legislature. Still, his and Agamben’s exceptionalism can help understand the collapse of the Roman republic. Connolly (2007) 25 also critiques Agamben for excessive formalism; his emphasis on ‘institutions’, ‘traditions’, and ‘ethos’ (32-3, 35) over against legalism suits Rome. Koschorke (2007) 26-32 sees tribunician sacrosanctity as countering patrician sovereignty, but consecratio as a result of aspiring to regnum needs to be accounted for as well. xiii Roman law supports Agamben. Gaius shows the emperor as 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 emperor’s law-making power was to establish ‘exempla publicly valid in perpetuity,’ Fronto ad M. Caes. 1.6.2-3). Peachin 1996: 19, who offers numerous sources for the ambiguity of the emperor’s position as law-giver subject to the law (24-5). xiv Pompeius Festus under sacer mons (‘holy mountain’), abridged from Verrius Flaccus’ lexicon. Agamben cites only Festus, because he is not interested in these ideas’ historical development – they are timeless to him. He treats Augustus in State of Exception 2003: ch. 6, but never realizes the definition of the homo sacer is Augustan. xv Dionysius of Halicarnassus calls the dictator an αὐτοκράτωρ (5. 73. 1) and states that the dictatorship was equal to a tyranny and was intended ‘to hold all the laws beneath it’ (5. 70. 3), but A. N. Sherwin-White and A. W. Lintott (OCD ‘dictator’) remark that contrary to the antiquarian tradition, the dictator was not exempt from the tribunes’ veto, from appeal, nor was immune to prosecution after leaving office. See Lintott 1999b: 18. xvi Agamben 2005: 47-8. Lintott 1999b: 109-113 provides a basic description of the office. 26 xvii Agamben 2005: 33. xviii Perhaps earlier than traditionally thought, Badian 1979. xix Livy 2. 18 treats the first dictatorship, which was mired in obscurity. Livy says there was no right of appeal against a dictator here and elsewhere (2. 18. 8, 2. 29. 11, 3. 20. 8), though at 8. 33. 8, a dictator is opposed by an appeal to tribunes and people (tribunos plebis appello et prouoco ad populum). xx Dictators against external threats: 2. 18. 8, 2. 19. 3, 3. 26. 6. The first dictator appointed to handle internal disturbance did not act against the people. Appius Claudius calls for a dictator to handle sedition (seditio, 2. 29. 1). Although the plebs recognizes the dictator was appointed against them (2. 30. 5), Manlius Valerius attacks the Aequi instead and resigns when the senators undermine his attempted conciliation of the plebs. They then secede to the Mons Sacer (2. 32. 2) and win the tribunate, which is made sacrosanct (2. 33. 1). Elsewhere, Cincinnatus retains his dictatorship after an external victory for internal reasons (3. 29. 6). xxi Agamben 2005: 15 argues against Schmitt on the basis of the Weimar Republic: ‘a “protected democracy” is not a democracy at all’ and ‘the paradigm of constitutional dictatorship functions instead as a transitional phase that leads inevitably to the establishment of a totalitarian regime’, but sees dictatorship at Rome as constitutional. Augustus’ regime, while not totalitarian, shares characteristics of the Fascist and Nazi regimes, where ‘they placed beside the legal constitution a second structure, often not legally formalized, that could exist alongside the other because of the state of exception’ (48). 27 xxii Gildenhard 2006; Wiseman 2009: 193-5, 205-7. Also Hinard 1988: 89, who traces Cicero’s similar comments about Sulla (90), and anticipates some of Kalyvas’s ideas about Dionysius and Appian (91). xxiii Brennan 2004: 35. Glinister 2006 argues the Romans resisted tyranny rather than kingship per se; the aristocracy ‘feared not so much kingly, as popular and antiaristocratic, rule, which would have cut into their jealously guarded powers and privileges’ (24). xxiv Brennan 2004: 36-50. Hinard 1988: 90 analyzes Sulla’s dictatorship as a return of kingly imperium without republican limitations. xxv On the sources and a range of critical and more accepting views: Ogilvie ad loc.; Lintott 1970: 13-18; Cornell 1986: 58-62; Forsythe 1994: 301-10; Fiori 1996: 378-9 with synopsis; Lintott 1999a: 56-8; Forsythe 2005: 193; Raaflaub 2006: 132; Smith 2006: 534 and generally 56-62. xxvi Fiori 1996: 393-6 thinks the version where Servilius Ahala is priuatus is more reliable. xxvii Linderski 2002 suggests consecratio in the death of Tiberius Gracchus. Wiseman (2009) 185-7 argues against, but Lowrie 2007: 45-50 sees consecratio less literally as a cultural citation. Cicero characterizes Scipio Nasica, who authorized Tiberius’ killing, as a priuatus, even while calling him pontifex maximus (Cat. 1.3). The point is he was not a magistrate. xxviii Mommsen 1879: 207-9 finds others: a lictor should have arrested Maelius; Ahala should not be hiding a dagger in his armpit and if not, how to justify the cognomen? 28 xxix Fiori 1996: 395 takes Cincinnatus’ justification of Maelius’ killing as indicative that the original version did not include dictatorship. xxx Ogilvie 1965: 551: ‘Gracchan touches’. Raaflaub 2006: 132-3 accepts this interpretation; Fiori 1996: 395 thinks it unnecessary. xxxi Chassignet 2001: 92 thinks the events between 63 and 44 BCE even more relevant than the period immediately after the Gracchi for the regularization of the adfectatio regni stories. xxxii Forsythe 1994: 302 accepts the post-Gracchan interpretation, but does not account for the institutional disparity. Cornell 1986: 59 steps back from institutional issues to address the legality of the Maelius episode broadly in a post-Gracchan context. Chassignet 2001: 92 tentatively suggests Aelius Tubero as a source. xxxiii Livy calls Maelius’ private grain distribution rem utilem pessimo exemplo (a useful matter of the worst example, 4. 13. 1). xxxiv For the Catilinarian conspiracy, see Lowrie 2007: 39-44. xxxv Lowrie 2005 analyzes Vergil’s Aeneid according to Benjaminian violence. xxxvi For legal systematization in this period, see Frier 1985, and generally in the first c. BCE, see Moatti 1997. xxxvii Livy, 4.16.1: domum deinde, ut monumento area esset oppressae nefariae spei, dirui extemplo iussit. id Aequimaelium appellatum est (‘Thereupon he ordered his house immediately to be destroyed, in order that the space be a monument of the suppression of evil hopes. It was called the ‘Aequimaelium.’) xxxviii Forsythe 1994: 305-7 reconstructs the Aequimelium as a sheep or pig yard. 29 * I thank Richard Tarrant for his response at the conference and Harriet Flower, Kurt Raaflaub, and Peter Wiseman for helpful discussion.