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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
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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
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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,
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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
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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
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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,
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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.
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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.
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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
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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.*
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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.