CHAPTER
8
Melanie Möller
Translated by Jake Fraser
Determining relations: from the exception to the objection
The concepts exemplum and exceptio appear, in the most diverse contexts, to build a diffuse unity.1 Examination of their interrelated Roman roots has revealed a phenomenon dialectically conceived, one that traverses the blurred border between inside and outside and appears to invert the determinants of traditional referential processes. What stands in question is the network of relationships between particular and universal, individual and community, exclusion and inclusion, deduction and induction. The affinity between the concepts of exemplum and exceptio is grounded, as is well known, not only in their inverse but complementary semiotics, but also in their etymological semantics. Both are prefigured by the separative prefix ex-, suggestive of a synecdochic (part/whole) relationship. The verbal root of both compounds intensifies the prefix’s external orientation: in the one case emere,2 in the other capere (thus in each case a verb from the semantic field “to take”).
The basic meaning of exemplum is given by quod e copia rerum aequalium eximitur (what is taken from an abundance of comparable items).3 The earliest evidence documents its basic function as the “sample” of commercial wares.4 It consists in practical confirmation, thus making plausible a theoretical claim. The meaning inscribed into the exemplum as the object and event of sampling evokes a process in equal parts sensuous and cognitive: through comparative touching and measuring, the interested party agrees to be convinced, which leads in turn to a decision to select from things apparently the same. Underlying this decision is a substructure both rhetorical and hermeneutic.
Against all attempts to fix the diverging functions of the exemplum and to limit its rhetorical role to a determinate (primarily narrative) spectrum, its functions are clearly multiple (see “Introduction” and “Explanatory Remarks” in Ruchatz, Willer and Pethes 2007: 9–59). They range from the deductive proof by example to taking the inductive example as point of departure, and moreover include a normative burden. As Aristotle and Quintilian say, the exemplum belongs, alongside the enthymeme, to the pathetic means of producing conviction (see Aristotle Rhet. 1356b1; Quintilian inst. 5.1.1; 5.11.1).5Peitho is, in principle, produced by the example in all three genera dicendi: although its preferred locus may be the genus iudiciale, it also unfolds its persuasive effects in the genus deliberativum and demonstrativum, sometimes showing its ethical and sometimes its aesthetic character.
Rhetoric is substantially less interested in the holistic dimensions of the exemplary case than in similarity and comparability: Roman rhetoric especially emphasizes the example’s particularity, its fundamental participation in a common denominator, which often makes a logically conditioned tertium comparationis unnecessary. Thus, a single deductive example, despite its particularity, can occasionally suffice as representative. The example, as a central hermeneutic possibility for visualizing evidence, can suggestively imply both empirical and cognitive certainty (Rhetorica ad Herennium, 2.31; 4.13). However, the fact that examples follow convention and permit certain stereotypes and repetitions does not necessarily contradict their specificity. In the end, no technique of duplication, not even the commonplace, can produce a completely identical exemplum: every repeated, because reliable, example is concerned more with “functional equivalence” than strict identity.6 If a number of such equivalents are combined with one another, they form a nearly impenetrable network. The assumption of a plurality of exempla therefore remains paradoxical to the extent that it posits both absolute identity and uncompromising exchangeability: one similar-sounding exemplum cannot stand in completely for another. Exempla of similar content can refer only to one another, and through mutual connection can disclose an illustrative power that corresponds to the exemplum’s deictic nature: it never means itself but always evokes another. Its particularity cannot lose itself in universality when it becomes part of an ensemble.7
The referential substructure of every exemplum implies other similar or dissimilar exempla, and this relation of similarity proves fundamental for all exemplary configurations. This comes through most clearly in the strong affinity to the figure similitudo. Cicero and Quintilian distinguish between three degrees of similarity – simile,8 dissimile, contrarium – where comparability (comparabile), especially in Cicero’s account (inv 1.49),9 is the most important factor. While the second degree, dissimile, is particularly well suited for hortatory aims (exhortatio10), the contrarium is conducive to clarity.
If exempla, in their deictic apparatus, demonstrate a practical dimension, they are thereby heavily dependent upon a community’s ability to reach consensus through communication. Such consensus emerges only through an example’s interpretation, as rhetorical theory shows. The various literary traditions of exemplarity are characterized by relative openness to interpretation: through their predominantly casuistic character, they tend towards open closure even when they are not of a genuinely inductive nature.11 No participants in the communication process can ultimately know if the exemplum will disclose the desired intuitive and persuasive function—nor if the example can effectively constitute the beginnings of a tradition.12
Like the example and in line with its verbal dimension, the exceptio straddles borders without necessarily dissolving them. As “exception” (alongside its other meanings: “constraint,” “condition,” “clause,” and “caveat”), it immediately establishes itself in a praxis both rhetorical and hermeneutic. The use of the exceptio marks – both inside and outside the law courts – a separatio alicuius extra ordinem et regulam (a separation of someone or thing outside the order or rule): broadly formulated, with the exception, one has to do with the “concrete inapplicability of a rule that is reasonable in itself’ (Hofmann 1971: 668). It operates with factual or fictive borders. Above all, this transgressive potential appears suitable as a tool for forensic rhetoric and its theoretical principles, insofar as what characterizes rhetorical theory is the observation, marking, and even legitimation of divergences from rules.13
The exceptio figures in Roman juridical language as the so-called “objection,” which counters the prevailing law on which one’s opponent relies and attempts to limit its enforcement, even if it cannot be entirely removed. A particular legal consequence replaces the general and constitutes a privilege. Institutionally, the exceptio belongs to the defense, which means that it challenges the normal, typical context and reveals it as such. With the aid of the exceptio, the accused can correct the law, if he succeeds in bringing the exception against the plaintiff’s causes of action, thereby “neutralizing” the ius civile. A legal basis is afforded by the ius honorarium or ius praetorium,14 a form of law presided over by the praetor, a magistrate charged with “tempering the excessive generality of the norms of civil law” (Agamben 1998: 20). If, during the praetor’s year in office, an established precedent used to bring a complaint repeatedly produced cases in need of an exceptional ruling, then his successor in office could include the precedents outlined by the exceptio in the ius honorarium; that is, he could record them in a written edict and thereby make them binding. His successor could, in turn, annul them. The ius honorarium thus offers a matrix to extend, supplement, and reform the civil code and substantially enhances the dynamism of its hermeneutics. The original distinction between civil law and ius honorarium seems to have disappeared early, which led to a more flexible process of jurisdiction. Admittedly, Cicero still insists upon the terminological division between the two kinds of law. Still, his tendency (most apparent in De legibus 3) to allow all magistrates – not just the praetor – independent judgment and therefore criminal jurisdiction enhances the dynamic flexibility of the entire juridical apparatus, including both statute as well as the non-written constitution.
The exceptio’s genuine sphere of influence, even beyond the juridical terminus technicus, lies within the community: it serves to stabilize the social communication of norms. In its unique position on the border between inside and outside, however, the exceptio marks a blind spot in a system invested in pragmatics and transparency and infused with hermeneutic strategizing, at least as the Roman rhetorical tradition represents it.15
The explosive hermeneutic power of the exceptio is in many ways comparable to that of the exemplum: given that its operation depends even more than the exemplum on an implied consensus, the essentially anomalous quality of the exception appears at first glance to enhance interpretive and semantic openness even further. In both cases, the context of narrative unity represented by a coherent legal text is marked by discontinuity, insofar as the exemplum, introduced from without, and the exception, which arises from within, both serve to disrupt unities.
Both terms, exemplum and exceptio, function in their “ineluctability and unreliability” as “hermeneutically disruptive factors” (Ruchatz et al. 2007: 30). Now, one may concede that their retroactive integration into a norm-based communications system creates the impression that we are dealing with a harmonic ensemble capable of being adapted at will to any and every context – an ensemble of special cases and proofs which would, through their sheer reproducibility, have to forfeit some of their polemic efficacy.16 This impression is buttressed by structuring approaches to juridical subject matter, such as those Cicero performs when he attempts to reveal the silhouette of a systematic rhetoric on the basis of the Roman judiciary system (and as a result entangles himself in glaring contradictions with his thesis of natural law). Cicero attempts to give examples and exceptions a concrete and innate place within the system of rhetorically based law. However, neither this nor the metonymic relationship between the examples and exceptions should obscure the fact that the emergence of these figures in individual cases and their specific application to them relate asymmetrically to the existing social as well as juridical orders – indeed, that they even threaten (for a moment) to disrupt them. This moment of uncertainty can recur whenever an example or an exception, alone or in concert, is applied in a concrete legal case. Here, the conflict in juridical parties’ interests each time brushes up anew against the unsettling potential of exemplum and exceptio, a potential grounded in their proximity to an uncontrollable, only vaguely nameable, outside. The following remarks concern themselves with this uncertain terrain, straddling a minefield of hermeneutic confusion: they turn the gaze upon the “aggressive complementarity” of exemplum and exceptio within legal hermeneutics.
Status theory as case study avant la lettre: exemplum and exceptio through the lens of a rhetorical hermeneutics
The dialectic of rule and exception (see Schmitt 1934: 19) is conditioned by the “symmetrical position” in which the exception stands in relation to the example, and through which it forms a system with the latter – namely, that of the “inclusive exception” (see Agamben 1998: 20 and Ruchatz et al. 2007: 22ff.). Here, Agamben once again offers a retrospective look at the valorization of the symmetrical above a primary asymmetry. However, Agamben (among others) rightly emphasizes that this process must be interpreted against the fraught background of an “intimate” connection between law, politics, and language (see Giuriato 2007: 226):
Language is the sovereign who, in a permanent state of exception, declares that there is nothing outside language and that language is always beyond itself. The particular structure of law has its foundation in this presuppo-sitional structure of human language […] To speak [dire] is, in this sense, always to “speak the law,” ius dicere (Agamben 1998: 20).
With respect to Roman law, it is language itself which constitutes the sovereignty of each person who is part of the juridical process. Thus, each person appears to be always already subject to rhetorical codification: the interplay of exemplum and exceptio, in any case, is unthinkable without this rhetorical ground. Hence, a more precise formulation than “law and language” would be law, rhetoric, and hermeneutics. The distance between these categories reaches its smallest point on the threshold between exemplum and exceptio. With regard to the relationship between rhetoric and literature, Anselm Haverkamp remarks: “The primal scene is that of rhetoric; it combines law and literature from the beginning, but divides them in the same first stroke” (Haverkamp 2012: 28). It is first and foremost rhetorical status theory, which categorizes the various kinds of dispute, that counteracts any leveling of distance between law, rhetoric, and hermeneutics with a radical normalizing tendency. Although status theory reveals that the separation of law and literature – insofar as laws can be interpreted as literary texts – would be a decisive precondition for the inviolability of the legal sphere, it nevertheless proves through the repeated problematization of interpretive disputes that this separation must remain impossible as long as the rhetorical codification of laws constitutes their literary quality (i.e. their hermeneutic potential). Language precedes law with its entire hermeneutic apparatus, thus deploying constitutive power for both oral and written law. Its antecedent quality also pertains to the processes of both inclusion and exclusion in the exemplum and the exceptio. This becomes visible at the latest when one party invokes the genesis of a legal text or, as in the example below, when calling for the initial classification of a legal case within the framework of status theory. This act depicts language’s antecedence in nuce, and the moment of textual origin is problematized concretely.17
Status theory is a topic within rhetorical invention. It is primarily concerned with the classification of possible legal cases before the court, and discusses exploratory and evidentiary formulas for similar states of affairs which, in turn, render possible similar declarations or proofs. Amongst these formulas are genuinely juridical questions, such as the basic clarification of jurisdiction, the facts of the case, and so on. Legal questions determine the actual status: they are not infrequently presented for clarification as early as the decisive pre-trial proceedings18 (e.g. inv. 2.58) – hence, the process of the hermeneutic production of law has already begun here (on this formulation, see Haverkamp 2012: 29).
Status theory assumes theoretically advanced form particularly in the controversiae of the declamation schools, before beginning to lose significance in the course of the marginalization of heuristics in favor of pure eloquence (elocutio). In modern times, status theory barely plays a role; the few interesting contemporary approaches argue from the perspective of speech act theory or, in its sociological inflection, on the basis of Jürgen Habermas’ theory of mutual understanding (Habermas 1988: 243f.). Among linguists, status theory is used comparatively within pragmatics to determine initial situations according to which a speaker may orient himself. Further, these form a basis from which he can experiment with the implementation of speech-acts and achieve the desired results for his addressee(s). The classification of the speech situation lays the foundation for every process of mutual understanding as well as its theoretical discussion.
Some point of contention always forms the basis for the determination of a status. While a case is being classified and its jurisdiction is being determined, two important initial judgments specify a speech’s scope, be it for prosecution or for defense. With the genus iudiciale, the case is mostly assessed according to the particular law in question, which constitutes the actual status. As a rule, the clarification of this question is assigned to the argumentatio. It is important to underscore that Cicero, in contrast to others, clings to the applicability of status in all three genera dicendi and not just, as was customary, in the genus iudiciale. In inv. 1.10–16, he distinguishes the following four statuses from one another:
•status coniecturae/constitutio coniecturalis (“status based on conjecture or inference,” when the deed is directly denied);
•status finitionis/constitutio definitíva (“status based on definition,” when the nature of the charge is disputed);
•status qualitatis/constitutio generalis (“status based on class or quality,” when the dispute is over how the matter is);
•status translationis/constitutio translativa (“status based on transfer,” when the aim is to transfer the accusation to another person, time, law, charge, or penalty).
The following observations apply to rhetorical theory’s consideration of the statuses for the charged field constituted by law, statute, and interpretation. Within this doctrine, exemplum and exceptio are mutually constituting: their overlap forms an inverse hermeneutic whole without erasing their fundamental conflict.
In fact, in addition to the exemplum, the exceptio also occupies a central location within rhetorical status theory.19 The capacity for conflict in the exceptio, taken as the exception in Carl Schmitt’s sense of being in opposition to the normal situation (Schmitt 1934: 13–18; see also Agamben 2005: 1–4), finds a suitable space for development within rhetorical theory’s categories of types of conflict, namely the status, particularly in relation to the conflict’s artificiality. Cicero’s observations on the implicit and explicit hermeneutics of the status transcend the borders of the ius civile and can pertain to every constitutional problematic, insofar as it describes a rhetorical situation. With this precondition, Cicero’s status theory in some sense gives the foundation for an art of exegesis avant la lettre.20
In the early De inventione and in his Partitiones oratoriae, Cicero addresses this precarious interpretive situation. The pertinent passages illuminate the decisive relevance of the exegetic problematic for the discussion of the inclusive exclusion or exclusive inclusion qua exceptio and exemplum. The production and reception of the exception are treated in part 134–136. Here, Cicero has his sights set primarily on the status translationis,21 the case organized on some form of transfer, which is supposed to clarify the responsibilities of institutions and persons. Cicero reveals the critical tightrope to be walked here through a demonstration of how to deploy exceptions supported by examples. In part. 134–136, Cicero is dealing with the tension between the scriptores, who first drew up the wording of the law, the praetores who determine or apply it to the single cases, and the actual iuris consultus or advocate who accuses or defends a client. Cicero vocalizes the conflicting parties: first and with more detail the prosecutor and then the defending counsel:
(134) (Cicero vocalizing the prosecutor) Why did he [the scriptor] write like that if that was not his meaning? Why, when his opponent [the defendant] has neglected clearly written statements does he bring forward statements not to be found in writing anywhere? Why does he imagine that the wisest masters of drafting are to be held guilty of supreme stupidity? What prevented the writer from inserting the exception (exciperet) that his opponent professes to have followed as though it were actually there (si exceptum esset)?
(135)(Cicero vocalizing the prosecutor) He will adduce examples (exemplis eis) in which the same writer, or, if that is not possible, in which other persons have made an exception that they thought to be necessary (quod excipiendum putarint). He will also try to discover a reason (ratio), if any such can be found, to account for the exception’s not having been made (qua re non sit exceptum): he will declare that the law is unjust, or else certain to be ineffective (iniqua aut inutilis futura), or that if there is one motive for obeying it there is another for repealing it; and that the statement of his opponent does not agree with that of the law (dissentire adversari vocem atque leges). Then, for the purpose of amplification, both in other parts of the speech and particularly in the peroration he will enlarge in weighty and vigorous language on the duty of maintaining the laws and on the danger threating both public and private affairs (de periculo publicarum rerum et privatarum).
(136)(Cicero vocalizing the defender) On the other hand, one who bases his defence on the meaning and intention of the law (sententia legis et voluntate) will maintain that the force of the law resides in the purpose and intention of the person who drafted it (in consilio atque in mente scriptoris) and not in its words and letters (non in verbis ac litteris), and will praise him for not having inserted any exceptions in the law (nihil exceperit), so as not to give hiding places (deverticula) for offences and so that the judge should in each case interpret the meaning of the law anew (legis mentem interpretaretur) in the light of the action of the particular individual (ex facto cuiusque). Then he must introduce examples (utendum exemplis) of cases where all equity will be thrown into confusion (aequitas perturbetur) if the words of the law (verbis legum) are followed and not the meaning (sententiis).”22
The dichotomy of lex and exemplum forms the basis for the simulated conflict between prosecuting and defending counsel: it results from the casuistic, as a whole unsystematic character of Roman law (see Kaser 1949: 54 and Sauer 2007: 251). Clearly, the lex is on all sides subordinated to the suggestive power of the exemplum (see Lüdemann 2007: 208). This observation stands in visible contradiction to alternative formulations in historical legal sources, such as the Codex Justinianus, which states: non exemplis sed legibus sit iudicandum (“one must judge not on the basis of examples, but rather according to laws”).23 Here, a sharp distinction pits the ideal of static legislative power against the dynamism of exempla, which leads to the making of exceptions. Admittedly, the practical influence of exempla is hardly touched by this. However, efforts toward legal systematization were increased, in an attempt to limit the force of examples. Such attempts are also certainly apparent in Cicero’s legal theory, where they serve the higher political aim of halting juridical caprice. However, Cicero’s concessions to dynamism and the force of examples clearly prevail over any attempt at systematization.
In the Partitiones, Cicero shows that, in contrast to particular exceptions (the “fine print”) generally valid exceptiones are not customarily adopted into legislative texts (see Bayer and Bayer 1994: 208). Both aspects have far-reaching consequences for the relationship of the exemplum to the exceptio, as a close look at the text will show. In the first part of the demonstration, Cicero plays with the inviolability of the literal meaning (vox, verba, littera) from the plaintiff’s perspective. This is founded upon hermeneutic considerations like those Cicero poses in de orat. 1.245 regarding the Twelve Tables.24 There he also considers inhibiting interpretations that diverge from the precise wording of the text. Written language here forces the hand of law by submitting it to rigid structures, however vague their origins. “Vague,” moreover, applies to the first codified law, the Twelve Tables, whose fragmentary, nearly virtual, character Marie Theres Fögen refers to in her Römische Rechtsgeschichten (Fögen 2002: 69ff.).25 Already visible in the Twelve Tables is the peculiar dialectic of unity and difference, insofar as “legal texts, which are as a rule put into writing for the purposes of clarity, determinacy and ‘legal certainty,’ contain within themselves the opposite: they ineluctably provoke a difference between text and interpretation” (Fögen 2002: 82–84). Admittedly, in the Partitiones, only the defending counsel will take advantage of this difference.
The prosecutor counters the defense’s interpretation with a set of peremptory negations (emphatically with nusquam, 134) and confronts the defense counselor with the tenuous accusation of “legal chicanery” (calumniae, 137). By bringing public and private danger (de periculo publicarum rerum et privatarum, 135) into play, the prosecutor attempts to discredit and socially isolate the defense counselors as proponents of rule-less interpretation. Also serving this intention is the recourse to reasonable authorities, here clothed in the antithesis between prudentissimi and summa stultitia (’most prudent,’ ‘of the greatest stupidity,’ 134). Practical wisdom (prudentia) while writing (in scribendo) functions as a sufficient rational foundation for the law. This is precisely where the discussion of the categories of conflict touches upon the law’s primal ground: the moment of fixture in writing by the pen of a putative expert.
Cicero’s stakes out the hermeneutic frame with interpretari (136). The question of whose perspective will convince the judge depends mostly on eloquence. Intriguing in this rather trivial insight is that the announced hermeneutic process stands under the sign of the exception: become writing, the exception functions as the signature and sign either of the unambiguous nature of the law’s wording (from the prosecutor’s perspective) or of its ambiguity (the defense counsel’s). The decisive argument for the dismissal or legitimation of the exceptional case is, in each instance, to be brought onto the stage of the existential rhetorical struggle by means of the example. In light of the latter’s character, equally above suspicion and authoritative, this is hardly surprising. Therefore the prosecutor should be able to make just as fruitful use of examples of explicit exceptions from one and the same author (quibus idem scriptor, 135) as those which he, according to the standard of similarity, has won from others (quibus alii). The same holds for the defense counsel in his search for examples that vouch for the separation of wording and meaning (sententia, voluntas, 135).
Although Quintilian alleges that examples arise from within the case (ex causa, 5.1.1–3), they are nevertheless actually paradoxically inserted from outside: he in fact names as an essential trait of the exemplum that it is adduced extrinsecus (inst. 5.11.1). What emerges here is the central problem of every excerpting process: it is nearly symptomatic, particularly for the tension between exclusion and inclusion, that a “certain indecisiveness” exists “between the movement ‘out of something’ (ex causa) and that ‘from without to within’ (extrinsecus in causam)” (Ruchatz et al. 2007: 14). In this manner, the rhetorical exemplum of the speech is admittedly, like every narrative structure, introduced from another context; however, it appears to emerge as if self-evident from the matter under discussion. At its core lies movement across borders through decontextualization, isolation, and reintegration. While the exemplum tends to move from without to within, the exception strives to move from within to without, beyond its exemplum-laden textual setting. This direction of movement is also implied by the law at hand, however much – from the perspective of the defending counsel – the exception also seems capable of remaining within the interior of its text, namely in the sententia legum (opinion of the laws) and in the voluntas (will) of the author, which the text internalizes.
The narrower context of Cicero’s discussion of the types of conflict category reveals through its complexity something larger – and essential – about rhetoric, namely, just how unreliable a frame of orientation must be which is constituted by exceptions that are themselves secured by examples. It follows from this that the incalculable, dissociative aspects dominate, especially in the first section. These take shape in the semantic realm of conflict (impedire, ‘impede’; iniqua, ‘unfair’; inutilis, ‘useless’; adversarius, ‘adversary’; dissentire, ‘dissent’; etc.) and via the density of the nexus constituted by excipere and exemplum. They create an atmosphere of uncertainty and suggest the undecidability of the relative value (or threshold value) of example and exception. If, in the words of Jacques Derrida, “the undecidable remains caught, lodged, at least as a ghost – but an essential ghost – in every decision, in every event of decision” (Derrida 1990: 965), then this ghost has the Janus face of exemplum and exceptio. The exception-example praxis contains within itself a veritable hermeneutic risk for all parties, one whose abysslike quality is intimated by the “hiding places” (deverticula) at Partitiones 136.
Both adversaries before the court attempt to minimize this risk, seeking to fill the sometimes explicit, sometimes implicit gaps left by the exceptiones with practical exempla.26 Cicero’s further remarks on this theme can also be explained in terms of gaps: the position of the exception between surface text and underlying meaning seems particularly abyss-like [abgründig] in the suggestive personification at inv. 2.140: tacitis exceptionibus (silent exceptions). Here it is a matter of exceptions without content: logically they withhold the absent information and are meaningful solely by announcing their own non-existence (i.e. in that they are paradoxically all too clear [perspicua]). This phrase may be read programmatically:27 lacking in content as these exceptions are – or better, withholding any specific assertion – they themselves occupy their own gaps – and refer at the same time to the condition of their possibility. They bring themselves into the conversation through absence.
This hermeneutically turned analysis of the status sheds some light on the characteristic border crossings of the interaction of exceptio and exemplum within a legal text: they require one another’s reciprocal marking, but fuse, on the threshold that seems to divide them, into an ambiguity that only gives the traces of a reliable system of reference. Thus it comes to be that the exegesis of every single law in every single case of application requires an act of differentiation, not only from the prosecuting and (particularly in the case of the exceptio) from the defending counsel, but also from the judge. This leads the judge back to a beginning, forcing him into a foundational act: this takes place “by a reinstituting act of interpretation, as if ultimately nothing previously existed of the law, as if the judge himself invented the law in every case” (Montaigne 1950: 961). Neither established rules nor exempla torn out of their contexts by opponents in the trial can change this reality. This is precisely what the defending counsel is after in the Partitiones: ut ex facto cuiusque iudex legis mentem interpretaretur, 136 (and the judge must on the basis of every party’s conduct interpret the meaning of a law each time anew). Exemplum and exceptio reveal the code of their interaction just as little as they do their original legal theoretical grounding, which appears to let tradition and innovation merge harmoniously.28 This act of fusion serves in turn to produce an illusion. On this level as well, the suspicion is confirmed that any suggestion of a harmonic complementary relationship between exception and example could never be anything more than an obfuscation. This obfuscation would proceed from the intention to dissemble the polemical potential present in the interrelationship between the example and the exception. Ultimately, one must remember that both phenomena are already destined to miss one another, given their shared prefix ex-: exemplum and exceptio are not identical with themselves, but also cannot occupy the same place at the same time (for the act of inclusion and that of exclusion are not based on any shared overlap, despite any proximity of the objects concerned in content or form).
I conclude with a reflection on the subversive hermeneutic potential of the two phenomena. Is one to assume on the basis of Cicero’s Partitiones that within the hermeneutic agon, exempla must be defeated by exceptiones? Not necessarily: in the text, the exceptions can only first become exceptions when they give themselves over to the evidentiary power of examples. And yet the considerations regarding the status translationis appear to refute the significant advantage in meaning which was ultimately claimed for the exemplum: “All in all, the exemplum carries a surplus of signification. Beyond being exceptional, it is excessive” (Lowrie, work in progress). In any case, it is rather the exceptio that presents itself as the decisive vehicle for the exemplum, when the exemplum – as proven example – wants to lull its recipients into the apparent certainty of being able to keep the unwritten exception out of a text’s structure and occupy its gap. The exception demonstrates within and by means of the text of the law its “autonomous [hermeneutic] character, incapable of being positively recovered by any [linguistic] rule” (quote following Giuriato 2007: 229). Clothed in oft-cited images, it is perhaps exceptions that serve as “baby-walkers”29 [Gängelwagen] for Kant’s “hobbling” examples.30 It thus appears, at least within the frame of the legal hermeneutics of status theory, as if exceptions and examples can only become rhetorical events – and thus establish precedents – when they are capable of reciprocal inversion and subversion.
Endnotes
1Giorgio Agamben has most recently worked out their mutual interference in his discursive history of the homo sacer (Agamben 1998: 45–68) and in The Signature of All Things (Agamben 2009: 9–32).
2Exemplum is composed of the prefix ex-, the verbal stem em- (“to take”) and the suffix -lo, which generally indicates the tool for an action: in this action, the carrying out is just as included as its result. See in particular Kornhardt (1936) 1–9.
3Thesaurus Linguae Latinae, s.v. exemplum I.1. Grammatician and lexicographer Festus differentiates the semantics of the exemplum from those of the exemplar: on his account, the exemplar primarily describes something sensually perceptible (ante oculos), whereas the exemplum describes a cognitively perceptible example. See for this Lowrie (work in progress).
4Junctures of exemplum and sumere are common: promere, in promptu habere, proponere, proferre, prodere, edere, ostendere, capere, petere, expetere, contueri, intueri, praebere, sequi, (exemplo) uti (later, connections that extend beyond this basic meaning are added, such as with narrare, animo repetere, nosse etc.). On the basic meaning, see for example: Cic. inv. 1.88; rep. 2.66; Verr. 2.2.118; Verr. 2.5.137; Rhet. Her. 4. 9; 4. 10.
5The Greek paradeigma, however, distinguishes itself quite clearly in its semantics from the Latin exemplum: the paradeigma is, particularly in Aristotle’s representation, not defined with respect to its participation in the whole, but rather placed into relation with other, preceding examples – ones which can at most build a serial sequence. This distinction is ignored by Agamben in The Signature of All Things, such that his comments collected there on the theme are only of secondary importance. See Agamben (2009) 9–32.
6See Haverkamp in this volume, 47–9. Lowrie (work in progress, “Exemplum,” subsection “Singularity/Plurality ”).
7Regarding this, see the contribution from Waldenfels in this volume. On the paradox of plurality see Lowrie (work in progress, “Exemplum,” subsection “Singularity/Plurality”).
8Eius partes sunt tres: imago, collatio, exemplum. The imago aims for a physical similarity, the collatio for a comparison based in similarity at the level of the thing. In the argumentatio, the probabile is achieved through signum, credibile, iudicatum or comparabile (which is, in turn, expanded into three categories). This is the primary source of the affinity between example, metaphor and allegory, which at the same time marks the interface of inventio and elocutio: as a result, from this vantage point “the credibility which is to be guaranteed by adducing an exemplar […] is not capable of being sharply distinguished from its illustrative or digressive character” (Ruchatz et al. 2007: 9).
9Quintilian differentiates further in the case of the simile into the totum simile (proportional: ex maioribus ad minora or ex minoribus ad maiora) and the exemplum in the true sense, which proves to be particularly efficient for the persuasio: “[…] rei gestae aut ut gestae utilis ad persuadendum id, quod intenderis, commemoratio” (the mention of a useful, real, or allegedly real act to produce conviction in what you are claiming, 5.11.6).
10This is, above all, developed with examples that refer to generic, topical, modal, and similar backgrounds.
11Regarding this, see the remarks in Honstetter (1977) 203: “Rather, casuistry represents the possibility, inherently present in every contemporary use of an exemplar, of exploiting the original interpretative latitude in historical events.” This hermeneutic latitude shows itself clearly in the framework of historiography, particularly with Livius’ use of political and juridical examples. See Chaplin (2000), particularly Ch. 2: “Speaker, audience, and Exemplum.”
12In this manner, the problem of induction present in the initial examples is led towards a solution: here, the example would, in a manner of speaking, have to ‘proleptically’ induce a rule which does not yet exist and which doesn’t actually serve as reference.
13It thus stands in an even more marked opposition to the competing discipline of grammar. See Ruchatz et al. (2007) 20.
14The ius honorarium (“honorary law”; for Varro and Cicero at first only the specific ius praetorium, “praetorian law”) is, above all, exercised by the praetor. It rests primarily upon an edict in which the praetor defines his juridical duties and outlines their implementation; it thus functions as a complement and corrective possibility for the ius civile. Papinian, the jurist of late Antiquity, vouches for this flexibility (Pap. 2 def.): Ius praetorium est,quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam (“The ‘praetorian law’ is that which the praetors have introduced in the public interest, in order to aid civil law, to complement it or to improve it”). Similarly, the jurist Aelius Marcianus appraises the right of office as viva vox iuris civilis “(living voice of civil law; Marc, 1 inst.)”. This form of law also afforded the possibility of calibrating the law to the current political and economic states of affairs (according to the measure of fides and aequitas), without needing to significantly change constitutions or legal texts. See, for example, Cic. leg. 3.6 and 3.27; on this, see particularly, Kaser (1949) 88–96; Honsell (2010) 20; and Kunkel and Schermaier (2008) 117.
15It was first in Christian times that its meaning more or less inverted itself into the opposite of an acceptio or receptio, which indicates a leveling of the unique dialectic of this concept while at the same time displaying its plasticity. See, particularly, the textual sources collected under Rubric II of the Thesaurus Linguae Latinae, s.v. exceptio.
16This is the argument presented by Geulen (2014) in her critical and stimulating response paper to the present text.
17Geulen (2014) reads this differently in her response.
18In main hearings, this was only exceptionally on the schedule: see Rhet. Her. 1.22.
19This configuration of the exception is reflected in modern literature perhaps most clearly in Heinrich von Kleist’s Michael Kohlhaas. See Giuriato (2007) 225; Lüdemann (2007) 208–223; Kittler (1987) 295ff.
20Both definitions arose out of the critical engagement with the status theory of Hermagoras of Temnos, which is today available to us in the version given by Hermogenes of Tarsos. Regarding this, see Möller (2013) 188–191.
21Cic. inv. 1. 10: at cum causa ex eo pendet, quia non aut is agere videtur, quem oportet, translativa dicitur constitutio, quia actio translationis et commutationis indigere videtur: “But when the case depends on the circumstance that it appears that the right person does not bring the suit, or that he brings it against the wrong person, or before the wrong tribunal, or at a wrong time, under the wrong statute, or the wrong charge, or with a wrong penalty, the issue is called translative because the action seems to require a transfer to another court or alteration in the form of pleading.”
22Translation following Rackham (slightly modified), Loeb edition (1960).
23Codex Iustinianus 7.45.13. Similarly, Ulpian, Adedictum IV; Gaius, Ad legem Iuliam et Papiam; Iulianus, Digesta 44.1.2; 22 5.5; 30.81.3. On this, see Bayer and Bayer (1994) 208.
24The Law of the Twelve Tables cited there offers the formula (originally with reference to witness statements) “uti lingua nuncupassit (“as the tongue explained it tu vero, vel si testamentum defenderes, sic ageres, ut omne omnium testamentorum ius in eo iudicio positum videretur, vel si causam ageres militis, patrem eius, ut soles, dicendo a mortuis excitasses; statuisses ante oculos; complexus esset filium flensque eum centum viris commendasset; lapides mehercule omnes flere ac lamentari coegisses, ut totum illud VTI LINGVA NVNCVPASSIT non in duodecim tabulis quas tu omnibus bibliothecis anteponis, sed in magistri carmine scriptum videretur (On the contrary, if you had been propounding the will, you would have so managed matters that the entire security of every will would have seemed to be staked on the issue of those proceedings; and, if you had been appearing for the soldier, you would by your eloquence, in your usual way, have called up his father from the shades; you would have set him in sight of all; he would have embraced his son and tearfully committed him to the care of the Hundred Commissioners; I pledge my word he would have made every stone weep and wail, with the result that the whole section beginning ‘As the tongue hath proclaimed it’ would have seemed no part of the Twelve Tables, which you rate higher than all the libraries, but just a piece of moralizing doggerel by some professor.)
25On the law as “old song” see also Cic. Leg. 2.59: discebamus enim pueri XII ut carmen necessarium, quas iam nemo discit (we namely learned as children the Law of the Twelve Tables, which no one learns today, by heart, as an indispensable song). On this, see also Fögen (2009) 54.
26See also inv. 1.56, where the unacceptable “reading into” of exceptiones into the wording of the laws is debated in a similar manner.
27We read there (inv. 2. 140): atqui lex nusquam excepit; non ergo omnia scriptis, sed quaedam, quae perspicua sint, tacitis exceptionibus caveri (But the law makes no exception. Therefore all cases are not covered by exceptions expressed in writing, but some that are self-evident are covered by exceptions understood but not expressed.). But this also renders plausible the criticism that Quintilian expressed towards Cicero’s word choice, which he ties to just this spot (3.6.6f.): he holds the Latin term exceptio to be unsuited for the rendering of the Hermagorean status katà rhetòn kaì hypexhaíresin as a result of its unfamiliarity.
28Montaigne (1962) 353: “Now the laws maintain their credit, not because they are just, but because they are laws. This is the mystical basis of their authority; they have no other.” See also Derrida (1990): 943. On the subtle interplay of tradition and innovation against the backdrop of exceptio and exemplum and the resulting illusion of being capable of holding the past present, see Lowrie (2010) 178.
29See Kant (2007) B174: “Thus examples are the baby-walkers of the power of judgment, which he who lacks the natural talent for judgment can never do without” (trans. slightly modified).
30For Kant, examples always mark a singular “case,” which must be grounded and brought to intuition. Here, there would be an essential complementarity between (the one) example and (the one) exception, which is to say that it is only through the exception that the chosen case example can be made to speak (on this see Lipps 1977: 39).
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