Homo sacer was a legal category in ancient Rome. If a subject of the Roman empire was designated homo sacer by a court it meant that they were no longer subject to the protections and benefits of civil society. A person belonging to the category of homo sacer could be killed by any Roman citizen and it wouldn’t be considered murder. Murder is when you kill a human being, and the homo sacer was legally not considered human. However, even as they were barred from participating in Roman society as humans, they were still subject to the rules and laws of the state. The most important of these laws, when it came to the concerns of the homo sacer, mandated that they could not end their life in dignity by being sacrificed to the gods. After all, what use did the gods have for the life of someone that wasn’t even human?
If society is meant to be the guarantor of life beyond subsistence, where the human consciousness can be freed from its base material needs and allowed to explore the depths of human existence, then to be excluded from society is, in a way, to be excluded from humanity. Or to put it as Italian philosopher Giorgio Agamben describes it, being reduced to “bare life”. A life where a person is denied self-consciousness through being reduced to the function of their biological processes. The only thing worth knowing about such a being: is it alive or dead?
In the end, it doesn’t matter. You can kill this thing and it isn’t murder. Murder is when you kill a human being.
Social orders built on hierarchy and stratification tend to always carve out an excepted class. Even as humankind became “enlightened” and portended to see all of human life as being of equal value, “human life” was a still politically determined designation. It was decided by the first liberal democracies that slaves and colonized people weren’t fully human. They had to obey the laws of their masters and colonizers but were not subject to the rights and privileges of fully human members of society. They were there to fulfill a mechanical function, not to live an actualized life. Whether or not those slaves or colonial subjects were able to self actualize was immaterial. Moreso if they were able to manage a life that wasn’t bare, it could be considered an insult, that such beings should be able to approximate something approaching a full life outside of the bounds of society. Such an insult should be met with extreme violence or even death. This is how you manage populations of people who aren’t fully human.
From its roots in the ancient forebears of modern society to our current hegemonic liberal order, the construct of homo sacer always involves the law. In modern times it is the criminal that most embodies the spirit of home sacer. One who breaks the laws of the society and thus is excluded from it while also being subject to the rules of the social order. Even as the felon serves their sentence and pays their debt to society, upon release they are still legally separated from society. Felons are restricted from voting, living in public housing, and taking advantage of other public goods. They can be legally discriminated against in terms of employment and acquiring financing. But these legal exceptions that create the modern homo sacer are formed downstream from the institutional social exclusion that exists as a cultural practice. What I mean is that often the criteria for who is to be excluded from society is determined socially before laws are created to codify it. In some cases, laws are not even necessary. The designation is purely cultural. Societies tend to be designed to reproduce themselves, not perfect themselves for the sake of all who live in them. Any person or group of people determined to be in opposition to that act of reproduction can be deemed homo sacer.
This determination is rarely rational but instead based on the fears of those who set the bounds of society. Specifically, the fear that someone other than them should be allowed to set those bounds. Jim Crow laws were created to prevent Black people from participating in Southern society and prevent the possibility that those Black people would shape society in their image. Of course, it wasn’t legal to murder a Black person for no good reason, but in the cases where the murder of Black people wasn’t legally excused as criminal justice, it was socially accepted as protecting the social order meant to reproduce whiteness. It’s fine, the authorities will look the other way. After all, Black people weren’t fully human.
The “sacer” in homo sacer is the Latin root of the more familiar word sacred. We define sacred as something held above society. In our contemporary definition, when something is sacred, it exists outside the bounds of the social order and yet influences how society is produced and reproduced. In ancient Rome however, sacer simply meant that a thing was outside of society. Sacer could refer to both the holy and the cursed. And yet it holds that the sacer on either end of the spectrum functioned as a tool in the production of the social order. The sovereigns who determined the laws and thus determined the criteria for homo sacer were themselves sacer in that their authority superseded the laws of the society they controlled. As was the authority of the agents of the sovereign who carried out the sovereign’s wishes. Whereas once the category of the sovereign was occupied by kings and emperors granted their sacred status by the divine edicts of the gods, now it is occupied by capital. The agents of the capital are the police. Theoretically in our democratic society, both capital and police are subject to the rule of law. Practically, they exist above it as so they can maintain the social order.
We once again find ourselves pondering the prevalence and persistence of state-sanctioned death. We debate whether or not resisting arrest warrants summary execution. Some of us experience horror at the thought of an unarmed 13-year-old kid being murdered by the police, others seek to absolve the actions of cops by post facto reducing the child to the status of homo sacer. In having this dialogue we must understand that once a person or a community is relegated to homo sacer or bare life by either the cultural and structural laws of society, they have but two options. To either acquiesce to their condition, with the slim hope that some sympathetic element of society will judge them worthy to fully participate in the social order at a later date. Or they can choose to reject society. To seek existence beyond bare life outside the social order. To become an outlaw. To resist.
Complying with authority is rational when that authority exists to protect and benefit you. When it does not, compliance is merely a method of preserving biological function. It is a facet of the bare life. And even then, compliance will not guarantee your life. You may still be murdered without consequence because your biological life is still separated from the human life that is protected by society. If you aren’t human, then your death isn’t murder. It’s a mechanical process in the reproduction of a society that doesn’t include you.
So if you are at home wondering why this keeps happening, why the cops keep killing unarmed Black, brown, indigenous, and yes, poor white people with little to no consequence. Why crimes committed against sex workers and the LGTBQ community are treated with little to no importance. Why police are so easily able to see an unarmed 13-year-old boy as a threat to be eliminated. Why officers expect their subjective fear to take precedence over the objective safety of the populace that they are nominally there to protect and why Derek Chauvin was able to nonchalantly kneel on a man's neck until he died. If you are wondering those things, I want you to consider the idea of homo sacer. The concept of existing outside the protection of society while still being subject to it. To be denied self-consciousness through participation in the social order as an equal, and to seek that self-consciousness outside the bounds of society. And to live with the knowledge that society will inflict violence upon you to protect those bounds. The people who suffer such violence at the hands of the state are not considered human. They have either chosen to live outside the social order or they have been placed there for breaking some law or cultural norm. They can be killed and it’s not murder.
You can only murder human beings.
Solidarity forever.
Painful and powerful words. Thank you.
sometimes i wonder what it takes for you to sign off with solidarity forever. over so vast a gulf as you describe here. sometimes it seems as though this may be the death throes of home sacer here. it is the case that black people, and other people of color, occupy many roles and statuses in this society that were utterly unthinkable before reconstruction, and mightily crushed by what followed for the reasons you outline above. (i would add, in the construction of the jim crow laws, the twisted psychological state of white southerners at the time, having fought to keep people as property, having been humiliatingly beaten, and then required to share power with their own former property. i don't like psychologizing political violence but i'm pretty sure a lot of white southerners might have feared the retribution they deserved, also driving them to drive ex-slaves down. that germany has done as much as it has to rewire that twisted psychology is interesting to me and used to give me hope. now i'm not sure we are morally capable of (letting alone properly educated to understand ourselves historically), let alone motivated to, come to terms with who we would be if we owned, and found some way to at least symbolically pay off, that debt.