In discussing the complex concept of the “State of Exception” Georgio Agamben traces the origin of current normative and central role of the State of Exception through a discussion of the two competing Roman concepts of Auctoritas and Potestas.
Auctoritas, in the sphere of private law, Agamben explains, “is the property of the auctor, that is, the person sui iuris (the pater familias) who intervenes . . . in order to confer legal validity on the act of a subject who cannot independently bring a legally valid act into being” (76). The term, Agamben further suggests, “derives from the verb augeo: the auctor is is qui auget, the person who augments, increases, or perfects the act–or legal situation–of someone else” (76).
Having discussed the term itself, Agamben asks the following important questions: “But where does the ‘force’ of the auctor come from? And what is this power to augere? His answer provides the most important explanation of auctocritas as a signifier of a specific juridical power. He suggests that auctocritas has “nothing to do with representation” (77) nor is the “auctor’s act” “founded upon some sort of legal power vested in him to act as a representative” (77). This power to augere, Agamben suggests, “springs directly from his condition as pater” (77). Important also to note is that Agamben argues that “auctoritas is not sufficient in itself” (76), its very existence also depends on an “extraneous activity that it validates” (76). Thus the act of the auctor reaches fruition only when it, in concert with an other, completes a perfect act by validating the act itself. That is why Agamben goes on to define the perfect act as follows:
It is, then, as if for something to exist in law there must be a relationship between two elements (or two subjects): one endowed with auctoritas and one that takes the initiative in the act in the strict sense. If the two elements or two subjects coincide, then the act is perfect. However, if there is a gap or incongruity between them, the act must be completed with auctoritas in order to be valid. (76)
Thus the role of the auctor is to fill the gap between the two parties, or elements, by adding his legal weight in order to erase the inequality that might make the transaction imperfect. The auctor, whose power is inherent to his person, thus erases the deficit in a contractual act simply by inserting his will into the act itself: like the father giving consent to marry or the teacher providing an answer. This discussion is still only pertinent to the function of auctoritas in the sphere of private law. The next part of Agamben’s discussion touches upon the role of auctoritas in public law. But before I discuss that it is important to dwell on potestas. Generally speaking, while auctocritas deals with the anomic aspects of the law, potestas deals with the laws normative functions and in Roman law both are supposed to function in a sort of dialogic embrace.
* (All citations are from Georgio Agamben’s State of Exception. Chicago, U of Chicago P, 2005).