§7. Agamben refers back to the section of Homo Sacer I mentioned last time, where he critiques theoreticians of religion, and he continues that critique here, characterizing the notion of the “sacred” based on the concept of mana as a “scientific mytholegeme.” Theorists found a concept similar to mana in many “primitive” societies and came to believe that it named some kind of invisible force that it central to religious experience. This concept has even shaped the work of one of Agamben’s favorites, namely Benveniste. But everyone should’ve known better because in 1950 Levi-Strauss critiqued the religious interpretation of mana, saying that it is nothing more complex or mysterious than a word to designate something whose precise nature has not yet become clear, like the x of algebra. For Levi-Strauss, therefore, the only mysterious force associated with mana is its bizarre influence over the scholarly community. Agamben proposes that scholars are projecting their own lack of understanding of any religion, including that of their own culture, into the data of “primitive” cultures. A footnote discusses the idea, drawn from Levi-Strauss, that myth is structurally necessary insofar as it testifies to the disconnect between language and thought — language can never become completely transparent to thought.
§8. The scientific mythologeme of mana is inextricably tied to the idea of a sphere of the sacred or religious (or magical, or in some cases “magico-religious”) that coincides with a more archaic moment in the development of society. Any unbiased reading of the sources, Agamben claims, will show that this is an arbitrary presupposition. The form it most often takes is the presupposition that before religion and law were separate, the two spheres must have been blended — but Agamben believes that scholars haven’t taken this possibility seriously enough and have just lumped together the properties of the two spheres as we know them today, without thinking about how the combination would be different from the sum of its parts (as in chemical compounds where the properties of the compound are not predictable from the constituent elements). It’s just as wrong to call this a religious as a legal sphere — we need to come up with a kind of x, performing a kind of archeological epoche that suspends the properties of what we know as law and religion in order to get at the “zone of indistinction” where they become one. A footnote claims that Mauss is exemplary of this kind of method — his work at its best is always looking at the places where customary distinctions begin to break down.
§9. For the era from which we have documents, it’s clear that the sphere of law includes elements that we now would call religious — it’s totally arbitrary to assume that the more primitive version of law was just religious. The oath is a perfect example of this combination; he cites a specific ancient Latin inscription that includes both elements. What’s more, this example functions just like the regular old oath we know, to guarantee the truth of a statement or the effectiveness of a promise — meaning that there’s no “trajectory” toward a previous, more purely religious version. The same holds in the Greek tradition, which adds an interesting twist — both the gods and humans swear by the waters of the Styx, and Hesiod goes to great lengths to show how the gods are punished when they break their oaths as well. Aristotle also talks about this and makes clear that the oath is actually more originary than the gods themselves — meaning that when dealing with the oath, the distinction between religion and law is completely misplaced. In fact, perhaps the oath as the more archaic phenomenon will force us to completely rethink what law and religion are. [We’re moving pretty quickly here, are we not?] A footnote points out that in Roman law, religion and law are separated, but both fall within the broader sphere of law.
§10. This section includes a huge quote from Philo’s Legum allegoriae, which Agamben finds fascinating because it identifies the Hebrew God with the oath — his words always correspond to his deeds, and human oaths are meant to conform human beings to God’s way of being to the degree they are able. Crucial here is the concept of pistis, meaning credibility — of which the oath (horkos) is the highest example. [This section is longer than the summary suggests, but half of it is the Philo quote and the rest is a fairly detailed analysis — I just give the “payoff” since I can’t easily find the Philo text online for everyone to refer to.]
§11. A second crucial text for understanding the oath is one that Agamben has already quoted at length from Cicero and now wishes to situate in the broader context of the De officiis. At issue is a bizarre case where a man decides to fulfill an oath to return to Rome even though he knows that his enemies will murder him on his return — Cicero takes this as an opportunity to reflect on what makes an oath binding. He notes that all the philosophers agree that the gods don’t get angry at human beings and so people aren’t motivated by fear of the gods. Instead, it’s a “religious affirmation” to which the gods are called as witnesses. The vis of the oath here is not the anger of the gods, but fides — an overarching order that actually governs the relationships among humans and between humans and the gods. Faith is the basis of justice, and it is fundamentally about the correspondence between language and action.
A footnote clarifies exactly what “religion” means in the Latin literature, saying that it has a dual meaning — on the one hand, it is what is isolated from society and commerce, on the model of the corpse in the grave. More broadly, it’s anything that a series of rituals has rendered inviolable. But it has its negative side as well [just like, I would note, the concept of “sacredness” derived from the homo sacer], that of the curse or sacrilege (i.e., the same word religio could also mean sacrilege). Projecting the modern concept of religion back onto this usage completely obscures what’s going on in the actual texts — and the original usage makes sense of the etymology based on the verb religare, to bind.
§12. In Greek, the link between faithfulness and the oath is even closer, as pistis could often serve as a synonym for horkos. The link with personal fidelity makes sense of the dual sense of faith (active and passive, given and received) — because faith is a bond. Bringing in the close link in Latin between fides and credere, which as he notes was to have a huge influence in Christian theology, he claims that etymologically credere meant “to give one’s *kred,” meaning a promise of protection that binds two people in a bond of fidelity. Fides also took on an important role in international law, modelled on the fides between individuals — a city could capitulate to a conquerer and swear fealty, leading to more merciful treatment. In every case, what’s at stake in fides is the correspondence between word and action. And again, as Dumezil has demonstrated in his study of archaic Roman institutions, fides or the oath is the origin of religion rather than being grounded in religion. The oath is where our concepts of law and religion, as well as moral and social, break down — and so we don’t need to bring in some concept of the “pre-juridical” that would be solely religious, but rather to call into question our entire notions of religious and juridical on the basis of the oath. A footnote attempts to dispel the notion that the separation between human and divine law was an ancient principle in Roman and Greek law by showing that scholars have missed the irony in the passages from Tacitus and Plato usually brought forward in support of that view. [This footnote was pretty amusing, but it’s hard to capture in this format.]