Karman

A Brief Treatise on Action, Guilt, and Gesture

Giorgio Agamben, Adam Kotsko

• Editorial: Stanford University Press
• Año: 2018
• ISBN:
  9781503605831
• Edición: 1
• Categoría: Philosophie
• Categoría: Philosophie politique

What does it mean to be responsible for our actions? In this brief and elegant study, Giorgio Agamben traces our most profound moral intuitions back to their roots in the sphere of law and punishment. Moral accountability, human free agency, and even the very concept of cause and effect all find their origin in the language of the trial, which Western philosophy and theology both transform into the paradigm for all of human life. In his search for a way out of this destructive paradigm, Agamben not only draws on minority opinions within the Western tradition but engages at length with Buddhist texts and concepts for the first time. In sum, Karman deepens and rearticulates some of Agamben's core insights while breaking significant new ground.

§ 1 Causa and Culpa

1. The two concepts that serve as a threshold to the edifice of the law—causa and culpa—lack an etymology. The entry for culpa in Ernout and Meillet’s etymological dictionary of the Latin language ends with the laconic pronouncement: “sans etimologie, comme causa”; as to the entry for causa, it concludes with the question, “peut-être mot emprunté, comme l īs, au prélatin? [could it be a word borrowed, like līs, from pre-Latin?],” a formula that, as anyone with any familiarity with linguistics knows, is tantamount to repudiating any firm etymology.

This does not mean that the authors refrain from defining their meaning. For causa, on the contrary, they distinguish two possible senses: 1. “cause” (exemplified by a passage from Cicero: causam appello rationem efficiendi, eventum id quod est effectum); 2. “case of a party in a trial, or a trial.” “The etymology being unknown,” they add, “the original sense is not determinable.” Even though the large number of compounds like causidicus, “the one who states the case,” namely, the lawyer; accuso, “to accuse”; incuso, “to put in a case, to incriminate”; excuso, “to put outside a case, to excuse,” seems to suggest the greater antiquity of the second sense, they nevertheless incline toward the priority of the causative sense, attested by the “frequent and ancient” usage of “causa, because of” which “is difficult to explain if it started from the sense of ‘trial.’”

As often happens in dictionaries, even when, as in this case, we are dealing with works that have acquired an unquestioned and well-deserved prestige, the argumentation is not always convincing, above all in the distinction between the various meanings of a term. Even in the absence of an etymology, in fact, the difference between the various senses that convention distinguishes in the usage of a word is often only apparent and a more attentive consideration does not find great difficulty in tracing them back to unity. It is sufficient to reflect for a moment on the juridical meaning proposed by the dictionary to notice that not only is it not coherent (“the case of a party in a trial” is not the same thing as “a trial”), but the first member is not in any way a definition, because it contains the term to be defined. As becomes clear from the examples, causa does not mean “trial,” but what is at issue in a trial, what gives rise to the suit (causativum litis, propter quod res in iudicium devocatur). The parallel, which the authors themselves introduce, with the Greek aitia is instructive: aitia means “responsibility, imputation,” aitia einai tinos is the equivalent of “to be accused of something,” and aitios is “the culpable person, the accused in a trial” (like the Latin reus). As happened for Greek, in which the juridical meaning evolved into the more general one, so also for Latin the passage from “the accusation that gives rise to a suit and is at issue in it” to “cause, motive” is perfectly explicable. In reality, it is not a question of two meanings, but of one only: that which gives rise to the suit, that which is at issue in a dispute and therefore provokes the intervention of the law, is more generally “that which causes.”

The later history of a term, moreover, can be as instructive as an etymology (which in this case is lacking): from the Latin causa there derives, in the Romance languages, the term cosa [“thing” or “affair”], which is certainly not easy to define, but which designates precisely “what is in question, at issue [in ‘causa’] among people”—in an argument, which can be over facts as much as words, but ultimately, simply in a discourse, in a conversation, in a joke. And then, more commonly, any “affair” whatsoever (for example, mulierum causa, women’s “thing,” menstruation), before meaning in the language of mathematics, precisely because of its omnivalence, the “thing” par excellence: the unknown, x.

When the word causa—starting from Aristotle’s definition of the four types of cause: material, formal, efficient, and final—becomes a fundamental term of the philosophical and scientific lexicon of the West, it is necessary not to lose sight of its juridical origin: it is the “thing” [cosa] of the law, what gives rise to a trial and, in this way, implicates people in the sphere of the Law. The primal cause is the accusation.

2. The concept of causa was the subject of the doctoral thesis of one of the most acute Roman scholars of the twentieth century: Yan Thomas. In the face of the polysemy of the term in juridical language, Thomas did not hesitate to undertake a detailed analysis of the semantic history of the term, a true and proper “biography of a word” (Thomas, Causa, p. 258), not only in the sphere of law, but also in those of philosophy and rhetoric. The first result of this exemplary analysis is that of tracing the originary structure of the notion not, indeed, to a supposed unity, but to an irreducible bipolarity: causa means both the trial and its foundation, both the controversy and that which gives rise to it. “As far back as one can go in time, we find the trace of two semantic nuclei around which most of the occurrences of causa are distributed. Trial and foundation, quarrel and motive, form the two irreducible poles of the term’s polysemy already as early as the Twelve Tables” (ibid., pp. 255–56).

The reading of the most ancient testimonies (in particular the causae coniectio in the Twelve Tables and two passages from Livy, Ab urbe condita I.32, and Festus, De verborum significatione, 103) thus allows us to define the meaning of causa in its close relationship—both of contiguity and of difference—with the terms res and līs. “Res is opposed to causa as the litigious situation in general, considered prior to any juridical formulation, is to the litigious situation defined in the sphere of a trial. Causa is opposed to līs as the substantial material of the controversy is opposed to the controversy properly so called, considered from the formal point of view of the encounter of two rival parties and interests” (Thomas, Causa, p. 269). Once again, the concept “causa” results from the irreducible polar tension between the res (the thing over which there is a quarrel) and the līs (the controversy): it is, in this sense—according to a formula that appears in Cicero as well as Festus and Gaius—always res de qua agitur, the affair to the extent to which it is included and juridically defined in a trial.

Precisely insofar as the term refers constitutively both to the conflict and to what is at stake in it, it is possible to understand the plurality of otherwise inexplicable meanings and, at the same time, its transposition into the discourse of philosophy and rhetoric in the sense of “cause that explains and gives a reason.” “Controversy seems to imply in a necessary way a foundation that refers to a motive and a reason. . . . Causa is that propter quam iudicium constitutum est; it is what gets the trial going. The ambiguity of a polysemy that is at first glance inexplicable results from the fact that all the diverse meanings of causa are successive moments of one same concept. . . . The efficient and rational dimension of the cause already finds its origin in the judicial and rhetorical meanings of the term. What is ‘put in question [in causa]’ is for that very reason called to furnish reasons. Philosophical thought in turn appropriates this meaning in order to make it the instrument of its own investigations. This displacement must have been produced in Greece where, long before any theoretical reflection, the values of motive and ‘justifying reason’ had probably broken away from the juridical sense of ‘imputation,’ ‘accusation,’ and ‘trial’” (ibid., pp. 225–26).

Based on the constitutive bipolarity of the term that results from Yan Thomas’s research, it is therefore possible to give consistency and probability to the hypothesis that we had merely suggested, namely, that the term causa constitutes a true and proper threshold in the edifice of the law. Causa is a certain situation, an “affair” [cosa]—in itself non-juridical—at the moment in which it is included in the sphere of the law: res de qua agitur, precisely. What is decisive, however, is to restore to the verb agere in this context the originary meaning that, as Thomas documents, is attested to us by Festus and Gaius: “agere means verbis indicare” (Festus, De verborum significatione, 21) and “the one who acted, said these words” (Gaius, Institutes, IV.21). As Gaius also writes, the res de qua agitur, the thing [It. cosa] that is in question in the law, is above all the affair that is expressed in words and shown in the formula of the judicial actio (ideo inseritur, ut demonstretur res, de qua agitur; ibid., IV.40).

We can say then, more generally, that just as in the philosophical vocabulary being is what is “called into question [in causa]” in discourse, so also in the terminology of law, a causa is a situation insofar as it is “called into question” in a trial: in both cases, if one restores to the word its ontological rank, what is in question is the “thing [cosa]” of language—the threshold in which it is captured and included in the corresponding order.

That precisely such a concept-threshold, in some sense a hybrid of reality and discourse, of fact and law, furnished to Western philosophy and science one of its absolutely fundamental terms is something on which we must never stop reflecting. Only the awareness of the juridical, political—and later, theological—origin of the West’s vocabulary of knowledge can permit us to liberate thought from the bonds and the signatures that oblige it to proceed almost blindly in one sole—and perhaps inauspicious—direction.

3. If we have written that causa and culpa mark out the threshold of the edifice of the law, the reason is that they are not juridical concepts in the strict sense, but instead mark—as we have seen—the point at which a certain act or fact enters into the sphere of the law. This is even more obvious in the concept of culpa. In the Justinianic sources, it has above all the generic meaning of imputability and indicates that a determinate fact is to be attributed to the juridical sphere of a person who must bear its consequences. In this sense, culpa is synonymous with noxa, a term whose etymology refers to the dark sphere of violent death (nex). Alongside this general concept, however, a technical meaning of culpa asserts itself, which is the only one on which jurists concentrate their attention. It designates—in distinction from malice, fraudulent intention—negligence in the exercise of an obligatory behavior, which according to the case can be lata or levis (even today penal law distinguishes between malicious and culpable crime). That is to say, in juridical vocabulary culpa signifies not responsibility, but its limitation.

This confirms the liminal value of the term with respect to the juridical sphere. It is not properly a juridical concept, but instead indicates the threshold across which a certain behavior becomes imputable to the subject, who is constituted as “culpable” (in culpa esse; obnoxius, culpable, does not designate the one who has caused the crime but, according to the originarily locative meaning of the preposition ob, the one who stands in culpa). We are dealing with a fatal threshold, because it leads into a region where our actions and our gestures lose all innocence and are subjected to an alien power: punishment or pain [pena], which means both the price to be paid and a suffering for which we cannot give ourselves a reason. How this could happen, how a human mind could have conceived the idea that its actions could render it culpable—this self-accusation, which seems so commonplace and taken for granted, is the enigma with which humanity must still come to terms.

4. An author who never ceased reflecting on this agonizing connection, which, in the form of the law, clasps action to its consequences, causa to culpa, is Franz Kafka. In a posthumously published story, “Der Schlag ans Hoftor,” a distracted knock at a courtyard gate gives rise, for no foreseeable reason, to an accusation and a trial that can never end: “Suddenly, people came out of the very first house and waved to us in a friendly but warning way, themselves terrified, cowering in terror. They pointed to the courtyard that we had passed and reminded us of the knock at the gate. The owners of the courtyard would lodge a complaint against us; the investigation would begin immediately” (Kafka, “The Knock at the Courtyard Gate,” p. 124).

But it is above all in the novel The Trial that Kafka reflected on the mystery of imputation, from which there seems to be no way out. For imputation, there is no need of a precise accusation: every human being—at least this is what the experience of Joseph K., the protagonist, seems to suggest—by the very fact of living is constitutively called into question [in causa] and accused. This is so much the case that, even if the accusation has not been formulated (“I do not know if you have been accused,” the inspector tells him during his first interview; The Trial, p. 14), he does not hesitate to accuse himself, to slander himself so to speak—as in a certain way Joseph K. does, who stubbornly seeks out his accusers and his judges all the more to the extent that they avoid him and seem not to know who he is. In any case, the implication of the protagonist—of every human being—in the sphere of the trial—which is to say, of the law—is so unavoidable and at the same time impenetrable that when he asked, “How can a human being be guilty?,” he receives the answer that in truth there is never a sentence and a declaration of guilt, but “the trial itself is transformed, little by little, into the sentence” (ibid., p. 213). As a great modern jurist has written, the principle nulla pena sine iudicio [no punishment without judgment] is reversed in the trial into that according to which there is no judgment without punishment, because “the whole punishment lies in the judgment” (Satta, p. 26) and the only salvation would be never to have been called in question [in causa], to live without ever being implicated in the sphere of the law, which does not seem possible.

5. In a midrash that bears the title “Massekhta Satan” (“Treatise on Satan”), God has Satan appear before him on the last day to judge him. The accusation that he directs at him is accusation itself: Satan is accused of having constantly accused humanity and, in this way, the works of creation. He accused Adam and Eve, so that God had to drive them out of Paradise; he accused the people of the generation of the flood, and to punish them God produced the catastrophe of the universal Deluge; he accused the people of the Tower of Babel, and for this reason God had to divide them and confound their tongues; he accused the Israelites at the time of the first and second destruction of the Temple, and God twice destroyed the sanctuary and scattered his people in exile among the nations. For this reason God condemns the accuser to vanish from the world, which must be renewed in a new creation. Satan does not accept the sentence and objects to his judge: “You say to me: Vanish from the world! Yet I resemble you because I am associated with you: you created the heavens and the earth, and I created hell” (Mopsik, p. 31). Up to the last moment, when God expels him eternally into the depths of darkness, he continues to level his objection against God: “Lord of the world, all the power you have demonstrated by descending into the flames to condemn me really does not belong to you: above you, there is another Power.”

We must reflect on the subtlety of the objections that the midrash lends more or less consciously to Satan. Satan incarnates the very powers of accusation and judgment in God, which is to say, the entire edifice of penal justice that is an integral part of the monotheistic religions and that in some way represents a power above God. The judgment against Satan must therefore imply a judgment on judgment itself, and the final elimination of Satan would have to coincide with the creation of a new world, without any more guilt or judgment. But for this reason—such is Satan’s final objection—another God would be necessary, entirely stripped of the faculty of accusation and judgment.

6. It is worth the trouble to reflect on the curious semantic evolution that leads the generic term culpa to designate, in juridical vocabulary, negligence. In reality, in the formulation of the most ancient laws, something like a fault simply does not appear. Consider the proclamations of the Twelve Tables: Si membrum rupsit . . . talio esto [When anyone breaks a member of another . . . he shall be punished by the law of retaliation]; Si p...