The Messianic in the Law: Rule, Exception, Health and the Emancipatory Potential of the Legal Maxim Salus Populi Suprema Lex Esto

• Autore: Elliot Sperber
• Carica: Writer, attorney and theorist. He lives in New York City
• Pagine: 185-218

ARTICLES & ESSAYS

DOI 10.6092/issn.2531-6133/6361

UNIVERSITY OF BOLOGNA LAW REVIEW

ISSN 2531-6133

[VOL.1:2 2016]

This article is released under the terms of Creative Commons Attribution 4.0 International License

185

The Messianic in the Law: Rule, Exception, Health and the

Emancipatory Potential of the Legal Maxim Salus Populi Suprema Lex

Esto

ELLIOT SPERBER†

TABLE OF CO NTENTS: 1. Introduction; 2. Law’s Ambiguity; 3. Nomos and Sherperd; 4.

Fate and Exception; 5. Health and Justice; 6. A Brief History of the Maxim; 7.

Reinterpreting the Maxim; 8. Conclusion.

ABSTRACT: The following article discusses the contradictory relationship between the

concepts of the messianic and the law, and reconciles this in a critical interpretation

of the legal maxim salus populi suprema lex esto. After discussing the concepts of the

messianic, the law and the exception in the thought of Carl Schmitt, Walter Benjamin,

Judith Butler, and others, this essay argues that there is a messianic presence in the

law traceable from classical myth (particularly the myth of the Fates and Asclepius) to

the figure of Jesus, the Trinity, and into contemporary constitutional structures.

Appearing most clearly in the legal maxim salus populi suprema lex esto, a genealogy of

the maxim is undertaken. Distinguishing the concept of health and the figure of the

healer from the concept of necessity and the nomos, and demonstrating how these

manifest in the maxim's opposing (mutative and conservative) meanings, the modern

history of the maxim is explored. Following this, and a discussion of the interrelation

of the concepts of law, justice, and health, this essay con cludes with a critical

reinterpretation of the maxim, one that uncovers positive rights to water, food,

housing, health care, and other conditions of health.

KEYWORDS: Constitutional Theory; Legal History; Law and Literature; Political Theology; Law

and Health; Jurisprudence; The Nomos; Biopolitics.

University of Bologna Law Review

[Vol.1:2 2016]

DOI 10.6092/issn.2531-6133/6361

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1. INTRODUCTION

Although legal scholars and historians consider the claim that the U.S.

Constitution was inspired by the figure of Jesus of Nazareth to be little more

than myth,

1

the figure of Jesus (or, more precisely, the messianic)

nevertheless maintains an objective, albeit unintended, presence in the

structure of the U.S. Constitution, as well as in Western law as such.

Not only does an analysis of the relation between the U.S. Constitution

and the messianic figure of Jesus provide an opportunity to explore the often

contradictory concepts of justice and the law, on a practical level an analysis

of the presence of the messianic (in the general emancipatory sense) within

the law allows for the presentation of a theory of justice and rights

responsive to the exigencies of the early 21st century, and the demands of an

actually democratic form of politics.

Beyond Carl Schmitt’s claim that all significant political concepts are

“secularized theological concepts,”

2

or Hans Kelsen’s critique of the notion

that “the nature of modernity is Gnosticism,”

3

an examination of the relation

between law and myth reveals that present day legal structures are not only

theological, or mythical, in origin. An analysis of the structures of the trias

politica (the tripartite separation of powers schema) and the Greek Fates, and

their relation to the nomos, reveals the lingering presence of ancient models

of order in present day constitutional structures; and though this

examination may not uncover “the metaphysical core of all politics,”

4

it may

at least uncover the theological, or mythic core of Western law and its

exception.

By comparing these systems and their respective exceptions (the

mythical figure of Asclepius as the exception to the Fates, and the maxim

† Elliot Sperber is writer, attorney and theorist. He lives in New York City.

1

See STEVEN K. GREEN, INVENTING A CHRISTIAN AMERICA: THE MYTH OF THE RELIGIOUS FOUNDING 3

(2015).

2

CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY 36 (George

Schwab ed. and trans., The U. of Chi. Press 2005) (1985).

3

HANS KELSEN, SECULAR RELIGION, A POLEMIC AGAINST THE MISINTERPRETATION OF MODERN SOCIAL

PHILOSOPHY, SCIENCE AND POLITICS AS “NEW RELIGIONS” 262 (Clemens Jabloner et al eds., 2012).

4

HEINRICH MEIER, CARL SCHMITT AND LEO STRAUSS: THE HIDDEN DIALOGUE 77 (Harvey Lomax trans.,

1995).

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DOI 10.6092/issn.2531-6133/6361

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salus populi suprema lex esto as the exception to the constitutions of the United

States of America, France, Italy, India, Pakistan, and others whose tripartite

separation of powers structure replicates that of the Fates), we can

distinguish the maxim from the maxim of necessity (necessitas vincit legem),

with which it is often conflated. Moreover, we can begin to distinguish a

critical notion of justice (related to a critical conceptualization of health)

from a model of order and public safety steeped in myth and religion,

enabling us to articulate the practical and emancipatory potential of the

Ciceronian maxim.

After discussing the ambiguity of the concept of law , and the symbolic

manifestation of its antitheses (order and justice) in the figures of the

shepherd and the healer (which comprise two aspects, or roles, of the figure

of Jesus, as well), this essay will discuss the conceptual and symbolic

relationship between law as order and necessity (the nomos), and law as

justice and its historical and conceptual association with the concept of

health. After distinguishing the concept of necessity (and its appearance in

classical myth) from the concept of health, the figure of the healer, symbolic

of noncoercive power, and its opposition to coercive power, the nomos

(represented by the figure of the nomeus, the shepherd), will be examined.

Appearing as an exception to a political order, functioning as a secular

messiah “associated with the destruction of the legal framework,”

5

the healer

points to affinities between the concept of health and the concept of justice.

After discussing the mythical and historical relationship between the

concepts of justice and health, and presenting a novel interpretation of the

iconography of the rod of Asclepius, the history of the maxim that the health

of the people should be the supreme law is surveyed. Employed historically to

support both conservative and emancipatory politics (the shepherd and the

healer), the maxim is discussed in the context of modern constitutional

history.

5

Judith Butler, Critique, Coercion, and Sacred Life in Walter Benjamin’s “Critique of Violence,” in

POLITICAL THEOLOGIES: PUBLIC RELIGIONS IN A POST-SECULAR WORLD 207 (Hent De Vries & Lawrence

E. Sullivan eds., 2006).