Gamben S The Tate of Xception and The Odern Obin Ood: Homo Sacer
Gamben S The Tate of Xception and The Odern Obin Ood: Homo Sacer
Valerie B. Johnson
T
he Robin Hood tradition, as expressed in mass-culture media in the
twentieth and twenty-first centuries, is markedly different from the
tradition as it appears in the materials generated in the medieval and
early modern eras. The modern Robin Hood tradition is strongly influenced by
medievalism and draws heavily upon perceptions of the Middle Ages; however,
this preference for medievalism is consistently subsumed to contemporary
Anglo-American theories of personal freedoms, thus creating a strong contrast
between the medieval period as the modern Robin Hood tradition represents it
and the medieval period as it is represented in literature and history. However,
most modern audiences of the Robin Hood tradition do not have the specialized
knowledge to distinguish the medieval from the medievalism, and thus continue
to desire and create re-tellings of the tradition which address modern socio-
political concerns within a pseudo-medieval context. Likewise, modern political
theories and philosophies which appear to fit the Robin Hood tradition fail to
resonate with the historical realities of medieval England. This article will explore
the conditions under which the political theories of the state of exception and
the homo sacer, as developed and enunciated by the Italian philosopher Giorgio
Agamben, successfully function within the modern Robin Hood tradition;
the article will also seek to address the broader implications for these successes
within modern mass culture.
Modern interpretations of Robin Hood depend heavily upon the age of the
tradition, and the connections of the stories to a supposedly authentic medieval
golden era, in order to legitimate and justify the latest retelling of the story.
With very few exceptions, such as Daniel G. Hoffmann’s ‘A Little Geste’,1 the
1
First published in Sewanee Review, 66 (1958), 633–48, Hoffmann’s ‘A Little Geste’ is
Robin Hood in Greenwood Stood: Alterity and Context in the English Outlaw Tradition, ed. by
Stephen Knight, Medieval Identities: Socio-Cultural Spaces, 1 (Turnhout: Brepols, 2011), pp. 207–228
BREPOLS PUBLISHERS DOI 10.1484/M.MISCS-EB.1. 100458
208 Valerie B. Johnson
a beautiful and odd poem, and has received very little critical attention. The poem’s popular-
culture profile is even lower.
2
Stephen Knight reports that Fairbanks earned five million dollars from the film and that
101,000 people viewed the film in its first week of release at the New York Capitol Theatre;
Stephen Knight, Robin Hood: A Complete Study of the English Outlaw (Oxford: Blackwell,
1994), p. 226. The massive success of Robin Hood in film, backed by memories of the immensely
popular De Koven and Smith musicals from a generation prior, undoubtedly influenced the
decision by Warner Brothers to film The Adventures of Robin Hood in expensive Technicolor.
3
The films and television shows are listed in chronological order of production with the
name of the actor playing Robin Hood included: Robin of Sherwood (1984–86, television, with
Michael Praed and Jason Connery); Robin Hood: Prince of Thieves (1991, with Kevin Costner);
Robin Hood (1991, with Patrick Bergin); Robin Hood: Men in Tights (1993, with Cary Elwes);
The New Adventures of Robin Hood (1997–99, television, with Matthew Porretta and John
Bradley); Robin Hood (2006–09, television, with Jonas Armstrong); Robin Hood (2010, with
Russell Crowe).
4
Knight, Robin Hood: A Complete Study, pp. 7–8.
5
Žižek’s liberal communist is a capitalist who gains meaning through the donation of his
wealth, which in turn ‘re-establishes balance — a kind of redistribution of wealth to the truly
needy — without falling into a fateful trap: the destructive logic of resentment and enforced
Agamben’s homo sacer and the Modern Robin Hood 209
statist redistribution of wealth which can only end in generalized misery’, which not only
invokes the spirit of the medievalistic modern Robin Hood but also provides a method by
which Robin can be both rich and poor, noble in birth and noble in spirit, an elite who has
credibility with the people; Slavoj Žižek, Violence: Six Sideways Reflections (New York: Picador,
2008), pp. 16–24 (at p. 23).
6
Many mass-culture texts are generated for a generic American audience, due largely to
American dominance in various entertainment media. Even when materials are not generated
in America, producers always keep the huge American market share in mind: thus, though
franchises such as James Bond and Harry Potter (books, films, assorted merchandizing, etc.)
are written, cast, filmed, and marketed in Britain, the texts are adjusted for American audiences
in terms of language, content, and even perspective. Thus, with the Robin Hood tradition and
many other historical romances, an effort is made to conform the context of the story to the
audience’s contemporary understanding of what a nation is, regardless of what a nation was
not in the Middle Ages. Likewise, the obsession with ‘freedom’ displayed in films such as Mel
Gibson’s Braveheart (1995) is characteristic not of the Middle Ages but of late twentieth-
century Anglo-American culture.
210 Valerie B. Johnson
and the practice of power; in sum, the Robin Hood tradition has increasingly,
over the last twenty years, become preoccupied with sovereignty. Sovereignty is,
ultimately, the use of political power upon the bodies of subjects within a given
social context.7 Thus, the influences of the various Robin Hoods upon their
story-societies are fictive explorations and examinations of both leadership and
the impact a leader has upon the people he controls.
The increasing emphasis on Robin Hood’s class- and merit-based leadership
qualities further opens the tradition to closer scrutiny regarding matters of
sovereignty, particularly in the idealized pseudo-medieval context which film and
television producers and consumers currently favour. Robin Hood has always
been a sovereign figure within the tradition’s greenwood locus but the modern
trend of placing him in a leadership role prior to his outlawry has doubled his
leadership potential and has thus brought these issues of sovereignty, as yet
largely unquestioned, to the forefront of modern re-tellings. However, as an
outlaw within a nominally medieval setting, the Robin Hood figure cannot be
equated with a legitimate sovereign within a purely medieval context. From a
modern popular culture perspective, in which medieval settings are often used
and interpreted as a fantasy space instead of a historical place, the merging of
contemporary (modern) political structures with historical settings in romance
or fantasy novels is not only permissible, but desirable.8 And within this context
the theoretical framework of sovereignty and Foucaultian biopower developed
by Giorgio Agamben serves to highlight the particular insights that the modern
interpretation of Robin Hood contributes to the tradition.
Agamben’s theories do not conform exactly to the political and legal realities
of medieval England: medieval English governmental systems contain some
elements of Roman law, but the structures of English kingship, the ‘powers of
government [which] cannot be held by magistrates, but only exercised, if the prince
was to be accounted sovereign’,9 are ultimately different from the predominantly
7
See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. by Daniel Heller-
Roazen (Stanford: Stanford University Press, 1998), particularly Agamben’s Introduction
(pp. 1–12), for Agamben’s own explanation and understanding of Michael Foucault’s theories
of biopolitics.
8
Romance, science fiction, and fantasy are among the few genres experiencing growth in the
current economic climate. Motoko Rich, ‘Recession Fuels Readers’ Escapist Urges’, NYTimes.
com, 7 April 2009, <http://www.nytimes.com/2009/04/08/books/08roma.html?_r=2>
[accessed 29 July 2009].
9
Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, ed.
and trans. by Julian H. Franklin (Cambridge: Cambridge University Press, 1992), pp. xiv–xv.
Agamben’s homo sacer and the Modern Robin Hood 211
Roman models upon which Agamben bases his theories. Agamben’s work is
useful, however, because his presentation of the medieval sovereign, and concern
with individual rights and freedoms, shares remarkable similarities with the
representation of medieval English government in mass-market popular culture,
or ‘historical’ romance. This medievalistic representation of Robin Hood, and the
now-traditional setting in the reigns of Richard I and John, resonates ideologically
with the traditions of Roman law and other continental models of government
that Agamben finds so useful.10
Agamben’s work, when adjusted to the requirements of English historical
circumstances, may have the potential to provide insight into the means by which
the Robin Hood tradition has been transformed by medievalistic mass-culture
productions. Representations of government within the Robin Hood tradition
have been distinctly tinted with ideologies of romanticism and medievalism since
the publication of Ivanhoe in 1819,11 and have become particularly strong in
the wake of the 1938 The Adventures of Robin Hood. With the Flynn film as the
standard by which all subsequent Robin Hood productions, whether cinematic
or literary, are measured,12 medievalism has irrevocably been laced into popular
culture’s most basic awareness of the tradition. Productions since the mid-1980s
either visually mimic the Flynn film — Robin Hood: Men in Tights (1993) is
particularly slavish in its devotion — or deliberately oppose it — Robin Hood:
Prince of Thieves (1991) is a notable example of this visual defiance — while
clinging with determination to the principles of freedom, personal liberty, and
class-based responsibility that the Flynn film made normative and integral to the
image of Robin Hood in the twentieth and twenty-first centuries.
10
A note on terms: medievalism is defined by the Medieval Electronic Multimedia
Organization (MEMO) by Tom A. Shippey as ‘the study of responses to the Middle Ages at all
periods since a sense of mediaeval began to develop […] based on whatever has been or is thought
to have been recovered from the medieval centuries. The Middle Ages remain present, moreover,
in the modern consciousness, both through scholarship and through popular media such as film,
video games, poster art, TV series and comic strips’, <http://medievalelectronicmultimedia.
org/definitions.html> [accessed 29 July 2009]. MEMO and Studies in Medievalism are engaged
in the ongoing work of attempting to refine the scholastic terminology, and out of need for an
adjective, I have decided to use ‘medievalistic’.
11
Arguably, this tinting occurred much earlier in the tradition, perhaps with the later
ballads, but Sir Walter Scott’s Ivanhoe has generally been seen as the standard work from which
the theory of the Norman Yoke, skilfully discussed by Christopher Hill in Puritanism and
Revolution: Studies in Interpretation of the English Revolution in the 17th Century (London:
Secker and Warburg, 1958), firmly and irrevocably entered the Robin Hood tradition.
12
See Knight, Robin Hood: A Complete Study, pp. 227–32.
212 Valerie B. Johnson
The impact a single, determined freedom fighter can have at the local, and
subsequently national, level is familiar in the Robin Hood tradition and has
become particularly prominent in the wake of the Flynn film. But, as Rodney
Hilton noted in 1958, Robin Hood’s ‘historical significance does not depend
on whether he was a real person or not’, and indeed if a historical Robin Hood
were ever to be located it would undoubtedly tarnish the modern tradition.13 But
medievalism requires that Robin Hood exist, and is hard-pressed to reconcile the
laughing rogue of Hollywood with Hilton’s further observation:
one of England’s most popular literary heroes is a man whose most endearing activities to
his public were the robbing and killing of landowners, in particular church landowners,
and the maintenance of guerrilla warfare against established authority represented by
the sheriff. A man who would now, of course, be described as a terrorist.14
13
Rodney H. Hilton, ‘The Origins of Robin Hood’, Past and Present, 14 (1958), 30–44
(p. 30).
14
Hilton, ‘The Origins of Robin Hood’, p. 30.
15
James C. Holt, ‘The Origins and Audience of the Ballads of Robin Hood’, Past and
Present, 18 (1960), 89–110.
16
Ibrahim concludes that Scheuer’s book, Imperial Hubris: Why the West is Losing the War
on Terror (Dulles: Brassey’s, 2004), has accepted Al-Qaeda’s propaganda, and that ‘Instead of
thinking of them as Robin Hoods, Francis of Assisis, or Thomas Jeffersons, or simply idealistic,
wayward children, it’s best to start seeing them as they see themselves: mujahidin — warriors
of Allah out to make Islam supreme, as they have been for some 1400 years’. Note that
Ibrahim has not challenged the validity of assigning bin Laden Robin Hood qualities, merely
shifting designation from freedom fighter to terrorist. Raymond Ibrahim, ‘Osama Bin Laden
as Robin Hood?’, AmericanThinker.com, 11 September 2008, <http://www.americanthinker.
com/2008/09/osama_bin_laden_as_robin_hood.html> [accessed 23 July 2009].
Agamben’s homo sacer and the Modern Robin Hood 213
sovereign and outlaw, the man at the head of law and order, and the man outside
the protection of the law. In sum, the modern medievalistic Robin Hood has
become a type of homo sacer.
The homo sacer, in Agamben’s terminology, is man living a paradox: he can be
killed but his death cannot have legal significance, either as sacrifice or as murder,
because in the eyes of the law the homo sacer is bare life, meat, and not a citizen.17
The homo sacer is a sacred man, but sacred in the sense meaning ‘accursed’,18
because he has been banned from participation in the juridical and cultural
systems of his nation,19 and thus his life and death have ceased to have meaning
for the state. Agamben is fond of saying that the homo sacer can be ‘killed but not
sacrificed’,20 that while the man in question may be physically killed, that death
cannot constitute murder because while biological death is physically identical
to murder, it is the state and the juridical order which classify those deaths as
murder, manslaughter, involuntary manslaughter, and so forth. In the figure of
the accursed man, the homo sacer, the state has found the embodiment of the
power of the ban:21 the outlaw who has been ejected from his community and
no longer enjoys the protections of the law, and whose killing will bring no legal
consequences upon those who end his biological life.
Agamben notes that:
The ban is the force of simultaneous attraction and repulsion that ties together
the two poles of the sovereign exception: bare life and power, homo sacer and the
sovereign. Because of this alone can the ban signify both the insignia of sovereignty
[…] and expulsion from the community.22
17
Agamben, Homo Sacer, pp. 71–74.
18
Agamben, Homo Sacer, p. 78.
19
Agamben, Homo Sacer, pp. 76–77.
20
Agamben, Homo Sacer, p. 71.
21
Agamben, Homo Sacer, p. 110.
22
Agamben, Homo Sacer, p. 110.
23
Agamben, Homo Sacer, p. 18.
214 Valerie B. Johnson
The figure of the sovereign, who is the embodiment of law in Roman legal
structures, must remove himself from the grip of the law in order to gain power
over it; that is, the sovereign’s power and force depends on his exemption from
the rule of law, and the law’s power derives from the sovereign (and his agents,
such as police) acting against the law, in exception to the law, in order to enforce
it. This paradox is what defines the sovereign and Agamben uses Hobbes to
further elaborate the distinction between power and life, arguing that ‘only bare
life is authentically political’, because sovereign power is not defined by a citizen’s
‘free renunciation of natural right but [rather] in the sovereign’s preservation of
his natural right to do anything to anyone’.24
Agamben specifically links the homo sacer to both the bandit and the figure of
the sovereign: the one outside the law, like Robin Hood, through criminal action
and subject to the punishments of the legal code, though having none of its
protections; the other a king, who, like police or soldiers in a state of war, enjoyed
immunity to specific elements of law so that he might create or enforce the law.
Both these figures exhibit what Agamben terms ‘threshold’, the liminal in-between,
the blurring of boundaries between legality and illegality, where everything is
legal at the same time that everything is illegal.25 The threshold blurring of the
distinctions between sovereign and bandit, a blurring which Agamben finds
in the homo sacer who exhibits traits of both sovereign and outlaw, ‘is neither
simple natural life nor social life but rather bare life or sacred life, [which] is the
always present and always operative presupposition of sovereignty’.26 Power and
rule depend upon indistinction; by this definition, the modern medievalistic
interpretation of Robin Hood, the noble and highly born outlaw who rules in the
greenwood and challenges the power of the legitimate sovereign, begins to blur
uncomfortably the category of outlaw with the contrasting category of sovereign.
This blurring is due in part to the nature of the ban: that which ‘has been
banned is delivered over to its own separateness and, at the same time, consigned
to the mercy of the one who abandons it — at once excluded and included,
24
Agamben, Homo Sacer, p. 106 (emphasis original).
25
Agamben’s explanation of threshold, as particularly embodied by the werewolf, is worth
noting at length: ‘The life of the bandit, like that of the sacred man, is not a piece of animal
nature without any relation to law and the city. It is, rather, a threshold of indistinction and
of passage between animal and man, physis and nomos, exclusion and inclusion: the life of the
bandit is the life of the loup garou, the werewolf, who is precisely neither man nor beast, and who
dwells paradoxically within both while belonging to neither’ (Agamben, Homo Sacer, p. 105
(emphasis original)).
26
Agamben, Homo Sacer, p. 106.
Agamben’s homo sacer and the Modern Robin Hood 215
removed and at the same time captured’,27 creating a paradox in which the
outlaw or exile has been removed from juridical control and ejected from social
protection and yet at the same time is utterly at the mercy of those juridical and
social systems which have denied him a place and protection. This position is
extremely like that experienced by the sovereign, who must be outside the law in
order to control it:
and thus just as sovereign power’s first and immediate referent is, in this sense,
the life that may be killed but not sacrificed, and that has its paradigm in homo
sacer, so in the person of the sovereign, the werewolf, the wolf-man of man, dwells
permanently in the city.28
27
Agamben, Homo Sacer, p. 110.
28
Agamben, Homo Sacer, p. 107.
29
Agamben, Homo Sacer, p. 106.
30
The need for critical analysis of mass-culture texts that deal intimately with violence and
popular conceptualizations of law and justice is not new, though the sheer numbers of texts
across multiple media would require studies like those undertaken by Janice A. Radway, Reading
the Romance: Women, Patriarchy, and Popular Literature (Chapel Hill: University of North
Carolina Press, 1991).
31
The superhero comic book industry includes business ventures and licensing in comic
books, films, animated cartoons, and branded merchandise whose products range from pencils
to cosmetics to clothing to electronics.
216 Valerie B. Johnson
That is, the stronger a story’s connection to what the audience accepts as reality, the
easier it is to slip the fantastical elements into the narrative. Here, the medievalistic
elements of the modern interpretations of the Robin Hood stories are vital
because they provide audiences with the sense that the tradition has always been
set during the reigns of Richard and John in the forest of Sherwood, that Robin
has always used a bow, and that he has always stolen from the rich to give to the
poor. With these elements in place, the suspension of disbelief is involuntarily
32
J. R. R. Tolkien, ‘On Fairy-Stories’, in Tolkien on Fairy-Stories, ed. by Verlyn Flieger and
Douglas A. Anderson (London: HarperCollins, 2008), pp. 27–84, 52. Flieger and Anderson
raise an excellent point in the Introduction to the edition, noting the difference between
Tolkien’s declaration that the suspension of disbelief is involuntary and Samuel Taylor Coleridge’s
judgment that the suspension is voluntary; I find Tolkien’s argument more persuasive.
33
Tolkien, ‘On Fairy-Stories’, p. 52.
34
Tolkien, ‘On Fairy-Stories’, p. 60.
Agamben’s homo sacer and the Modern Robin Hood 217
achieved in any given Robin Hood story; and any deviation from these basic
elements — such as Stephen Lawhead’s recent decision in his King Raven trilogy
to place Robin Hood in a Welsh context during the reign of William II Rufus
(1076–1100) — requires an extensive meta-textual justification, such as lengthy
author’s notes and introductions.
However, this suspension of disbelief has spilled outside the texts of individual
stories: modern audiences now see Robin Hood as uniformly heroic.35 The
outlawed criminal and his men, ejected from society and denied its protections,
commit crimes in the course of any greenwood tale and kill enemies and innocents
alike in the earliest stories.36 Yet audiences find this entertaining, and have done
so for centuries. This blurring between criminal and hero within the boundaries
of the text is a threshold as Agamben defines it (see note 25). The further blurring
between a figure deemed heroic within the context of a story and that same
figure’s textual heroism spilling out into non-narrative, non-textual, references
like proverbs is also a threshold. And it is this threshold which is a major narrative
impulse driving mass-culture products. The threshold between outlaw and hero,
between law and lawlessness, between necessity and action, finds a theoretical
echo in the state of exception.
Legal scholar Paul W. Kahn notes that :
The criminal, in modern America, is denied any political space. Even his execution
is not a positive, political act, for he cannot be sacrificed to the state. There is
nothing in him over which the sovereign can triumph. He has become Agamben’s
homo sacer: someone who can be killed but cannot be sacrificed.37
The implications for the perception of the status of the criminal — the real, non-
textual criminal — and the contrast in the treatment of a textual criminal — such
as Robin Hood — by the real-world public who disassociate criminality from
35
The early ballads, literary references, and proverbs certainly do not paint a positive
picture of Robin Hood; recently, the only lingering remains of those early negative references
are proverbs (rarely used), and the occasional accusation that a politician is acting like Robin
Hood. Bill O’Reilly, the conservative political commentator on the US-based Fox News
television station, accused presidential candidate Barack Obama of being a ‘Robin Hood’, used
as a synonym for ‘socialist’, during the 2008 American presidential campaign.
36
For example, the ‘litull page’ in ‘Robin Hood and the Monk’, killed ‘For ferd lest he wolde
tell’ (ll. 205–06), in Robin Hood and Other Outlaw Tales, ed. by Stephen Knight and Thomas H.
Ohlgren (Kalamazoo: Medieval Institute, 1997).
37
Paul W. Kahn, Sacred Violence: Torture, Terror, and Sovereignty (Ann Arbor: University
of Michigan Press, 2008), p. 40.
218 Valerie B. Johnson
Robin Hood could indicate that vigilantism has become normative in certain
contexts and is no longer questioned. The Robin Hood of the early modern /
medieval ballads is hardly a homo sacer figure; Agamben’s theories of sacral
kingship do not reflect the historical reality of medieval Britain, both before and
after the official signing of the Magna Carta. But the medievalistic Robin Hood
tradition, the modern Robin Hood tradition, sees Magna Carta, and particularly
habeas corpus,38 as a major turning-point — the discussion of rights and freedoms
in the Flynn film alone is enough to have brought these issues to the forefront of
the tradition, and subsequent cinematic and literary repetitions have followed
the lead of a work produced in 1938.
This modern tradition forms Robin Hood very much as a homo sacer figure, a
man whose life cannot have meaning to the state because of his crimes against the
state, thus creating him as an outsider whose power is lesser than the sovereign’s
but capable of challenging it. His status as beloved freedom fighter means that
his death does have meaning and significance in the same extra-legal arena, the
greenwood, that he operates within during the story and in which he finds the
means and authority to challenge the legitimate king. The modern tradition
also rearranges Robin Hood’s medieval setting into a medievalistic setting, to
permit the outlaw to be a hero, to establish his kingdom in the greenwood and
legitimately challenge the king’s authority.39
38
The Magna Carta, or Great Charter, was first signed at Runnymede in 1215, the result of
a vicious dispute between King John and his barons. However, as the historian James C. Holt
observes in his magisterial Magna Carta (Cambridge: Cambridge University Press, 1965), ‘In
1215 Magna Carta was a failure. It was intended as a peace and it provoked war. It pretended to
state customary law and it promoted disagreement and contention. It was legally valid for no more
than three months, and even within that period its terms were never properly executed. Yet it was
revived in the re-issues of 1261, 1217, and 1225. The last version became law, to be confirmed
and interpreted in Parliament and enforced in the courts of law’ (p. 1). This document is the basis
of English law, and later British and American systems of government as well. The principle of
habeus corpus, literally ‘we command that you have the body’, appeared in Chapters 39 and 40 of
the 1215 Charter, and was revised into a single chapter, 29, in the 1225 re-issue (Holt, Magna
Carta, p. 1, and nn. 1, 2). Holt further notes that habeus corpus ‘owes its continued existence to
the pietas of legislators and lawyers, for it is not now essential or often even relevant to the liberty
of the individual’ within the context of English law (Magna Carta, p. 2).
39
‘It is no accident that Magna Carta occurred in the reign of John for it was only then
that the activity of the government was first fully recorded, and this in itself has ensured that
more of the record has survived’; Holt, Magna Carta, p. 30, which has fascinating implications
for the now-traditional setting of the Robin Hood material into the reigns of Richard and
John. Equally fascinating is the fact that few authors use government and law as anything but a
flimsy backdrop; Parke Godwin’s Sherwood (New York: Avon, 1991) and sequel Robin and the
Agamben’s homo sacer and the Modern Robin Hood 219
Such a legitimate challenge to the king — or the king’s agents, who are abusing
their authority — is key to not only the perception of the modern Robin Hood as
a hero but it also establishes what Agamben terms ‘the state of necessity’, a political
condition which is a precursor to the state of exception. Unlike the state of
exception, the state of necessity cannot have any juridical form or even be defined,
though it serves as the foundation for the exception.40 But if the state of necessity
is established through the cruelty of the king or the king’s agents — which every
Robin Hood film takes care to demonstrate, from the 1922 Fairbanks film to the
recent television series starring Jonas Armstrong — and thus shows that the only
way for the people to survive, indeed for them to maintain themselves at the level
of bare life, is for a homo sacer to stand up and defy the authorities.
Robin Hood must also always be sure to commit a crime at the same time,
to thus legitimate and maintain his outlaw condition, but always a crime linked
to his rightful defiance of wrongful authority, to paraphrase Stephen Knight.
Thus, he may kill a cruel tax collector or forester, damage property, defy direct
orders from an agent of the king, steal back some item that was wrongfully taken.
This crime must always be undertaken to provide a clear narrative excuse for his
outlawry, but also to demonstrate that Robin Hood has been forced to exercise
his right to resistance — to demonstrate, in effect, the state of necessity that
demands the existence of the outlaw who is ruling in the greenwood, a condition
which is itself a state of exception.
The term ‘state of exception’ is less a designation actively used within Anglo-
American juridical systems than a descriptive phrase employed by Agamben to
attempt to sketch the outlines of the ‘no-man’s land between public law and
political fact, and between the juridical order and life’.41 This no-man’s land is
explicitly a form of threshold, like the homo sacer, but the state of exception, though
highly theoretical, is expressed through practice: it is ‘state power’s immediate
response to the most extreme internal conflicts’.42 The state of exception is thus
largely a political definition with a legal foundation, regulated less by ideology
and more by consequences, and has been built into the constitutions and
King (New York: Avon, 1994) see Robin, frustrated by laws he does not understand being used
against him, become a lawyer — but Godwin deliberately sets his novels immediately after the
Conquest and at the turn of the twelfth century, and thus Robin’s work with the law becomes
the foundation for Magna Carta.
40
Giorgio Agamben, State of Exception, trans. by Kevin Attell (Chicago: University of
Chicago Press, 2005), p. 1.
41
Agamben, State of Exception, p. 1.
42
Agamben, State of Exception, p. 2.
220 Valerie B. Johnson
43
In American law, the term most frequently used to describe the situation is ‘state of
emergency’, most often invoked during natural disasters to provide quick rescue and aid, and
also to permit the establishment of curfews and movement restrictions; in the United Kingdom,
‘martial law’ is the term preferred to describe the state of exception. Though the particulars
differ from one legal system to another, the general idea remains the same: a suspension of
normal operations and the imposition of different standards of behaviour and law. Agamben,
Homo Sacer, p. 10.
44
Bodin, On Sovereignty, p. xvi.
45
Agamben, State of Exception, p. 23.
Agamben’s homo sacer and the Modern Robin Hood 221
of citizens who for some reason cannot be integrated into the political system’,46
which resonates strongly with the perception of the medievalistic Robin Hood
as a freedom fighter working to set the system right, robbing the thieving rich to
return money to the starving poor.
Agamben further claims that the ‘voluntary creation of a permanent state
of emergency […] has become one of the essential practices of contemporary
states, including the so-called democratic ones’,47 that the use of the exception
has become normative. The terminology of the exception is, however, difficult
enough to unravel in contemporary Anglo-American law, and it becomes
even more difficult to define the state of exception in medieval English law. In
a recent presentation, Paul Hyams noted that ‘few books went into medieval
courts, though plenty were written about the proceedings of those courts’,48 thus
indicating that common law and custom were the de facto governing principles of
medieval English culture, and that nearly every case could, potentially, present an
exception to custom. But the state of exception, as Agamben conceptualizes it,
is entirely constructed on the suspension of complex legal systems. Since Magna
Carta codified some pre-existing customs, that is, the common law that various
officials agreed upon, and did not include circumstances for its own suspension,
it is rather difficult to discuss the state of exception in terms of English medieval
law, particularly since the exception was not built into the foundation documents
of government in the same way that the American Constitution specifically
accounted for circumstances in which habeas corpus could legally be suspended.
The ahistorical and medievalistic Robin Hood stories here benefit from the
tendency of modern audiences to adapt traditional stories to modern concerns:
the medievalistic Robin Hood is concerned by the suspension of habeas corpus
and the possibility that he could be convicted in absentia, because his modern
audience is concerned by the potential loss of those rights; the medieval Robin
Hood and his medieval / early modern audience, however, would recognize
that his outlawry is as much sentence as it was a state of existence. Modern
audiences, for whom the state of exception is a possibility, have so repeatedly
and consistently unmoored the traditional stories from the legal realities of the
medieval period that attempting to analyse modern mass-culture Robin Hood
texts in the context of the medieval materials becomes at worst futile and at best
46
Agamben, State of Exception, p. 2.
47
Agamben, State of Exception, p. 2.
48
Paul Hyams, ‘Literacy and Orality in the Age of the Legal Revolution’, presented in April
2009 at Law, Justice and Governance: New Views on Medieval Constitutionalism, a conference at
the University of Rochester organized by Richard W. Kaeuper.
222 Valerie B. Johnson
problematic. Particularly in the last twenty years, the stories have come to be told
and retold in the context of contemporary politics and law, to the point that
in the 2006 television series Jonas Armstrong’s Robin quoted the Koran while
trying to explain why he had gone on Crusade.49
But it is also notable that these modern audiences who have perpetuated
the medievalistic Robin Hood tradition indeed have functionally canonized
elements of medievalism as medieval fact within the stories, have performed
a similar operation with regard to the use and abuse of the state of exception.
Agamben declares the state of exception’s legal status to be analogous to that
governing the right to resistance — that is:
Two theses are at odds here: One asserts that law must coincide with the norm, and
the other holds that the sphere of law exceeds the norm. But in the last analysis the
two positions agree in ruling out the existence of a sphere of human action that is
entirely removed from law.50
The state of exception is legally regulated from start to finish, but these legal
controls do not account for how citizens perceive individual cases, nor for how
history will judge them. An example that is particularly current for Anglo-
American audiences is the Bush administration’s redefinition of the term ‘enemy
combatant’ to mean:
an individual who was part of or supporting the Taliban or al Qaeda forces, or
associated forces that are engaged in hostilities against the United States or its
coalition partners. This includes any person who committed a belligerent act or
has directly supported hostilities in aid of enemy armed forces.51
The strong backlash in world media, both within the United States and beyond its
borders, against the Bush administration’s decision to classify al-Qaeda and Taliban
fighters as unlawful combatants may draw on several sources, but a significant cause
appears to be a conflation of legality and morality. The majority of objections were
made on moral grounds, and did not address the legal right of the United States
to take this action. Morally, the decision may be wrong; legally, it was right. The
uncomfortable separation between morality and legality in the United States has
49
‘Parent Hood’, series 1, episode 4 of Robin Hood, dir. by Richard Standeven (London:
Tiger Aspect, 2007) [on DVD].
50
Agamben, State of Exception, p. 11.
51
Combatant Status Review Tribunal Order, Memorandum for the Secretary of the Navy,
dated 1 July 2004. Available via the US Department of Defense’s web site, <http://www.
defenselink.mil/news/Jul2004/d20040707review.pdf> [accessed 30 July 2009].
Agamben’s homo sacer and the Modern Robin Hood 223
52
This phrase has been associated with the Spider-man character since his first appearance
in the Marvel Comics comic book Amazing Fantasy, 5 (August 1962).
53
Radway, Reading the Romance, p. 54; see also Lydia Schurman and Deirdre Johnson,
224 Valerie B. Johnson
critics, and others, such as romance novels. In this form, like comic books, speed
of production, tendency towards repetition, and wide scope of distribution
contribute to critical and social disdain for texts that are consumed by significant
portions of the population. Garth Ennis, author of The Punisher (vol. 3, issues
1–12), collected in a trade edition as The Punisher: Welcome Back, Frank,54 notes
in a brief introduction to the collection that:
I know these are more sensitive times than the seventies, when the likes of Dirty
Harry, Death Wish and Big Frank [Frank Castle, alias the Punisher] himself were
let loose on the public psyche. I’m well aware we have to be more aware of the
consequences of our actions. No one knows better than I do that everything must be
viewed in its appropriate socio-political context. I can see why Frank’s little hobby
might be viewed as requiring some kind of justification. But only by morons.55
Welcome Back, Frank served as the basis of the story told in the 2004 film The
Punisher with Thomas Jane; where Welcome Back, Frank sought to revitalize
the character and return him to his roots as a street-level vigilante hero with an
obscenely large arsenal at his disposal, the film told an origin story, combining
the classic origin of the Punisher with Ennis’s more recent, and very popular,
tale. Ennis compares the comic book Punisher to mass-market cartoon slap-
stick violence, kung-fu films, and classic Westerns, and argues that in each case a
consumer does not bother to think about the:
alleged effects of depicting excess cruelty to a mass audience [… or] the plight of the
mentally ill in today’s too-fast-to-care society [because] You’re too busy laughing. Or
gasping. Or sitting in dumbstruck silence. Or saying ‘Hey, that was cool.’ Or maybe
just going ‘Whoa!’ […] Because it isn’t real. Because you’re being entertained.56
Ennis does have a point: cartoons, kung-fu films, Westerns, and comic books
are all perceived and dismissed as entertainment, with nothing more to offer
but thrills and a brief removal from the stress of real life. But what Ennis fails
to note is that when the reader or viewer has the ‘whoa!’ moment, he has been
successfully caught up in the text’s story world.
Scorned Literature: Essays on the History and Criticism of Popular Mass-Produced Fiction in
America (Westport: Greenwood, 2002).
54
The series sought to reintroduce Marvel Comic’s character the Punisher (alias Frank
Castle) to a new generation of readers while bringing the character back to his roots as a ‘street-
level’ vigilante superhero.
55
Garth Ennis, The Punisher: Welcome Back, Frank (New York: Marvel Comics, 2001), p. 4.
56
Ennis, Welcome Back, Frank, p. 4.
Agamben’s homo sacer and the Modern Robin Hood 225
Tolkien contended that visual media, like theatre or film, are hostile to fantasy
because they provide such real figures for audiences to view and believe in,57 that
seeing an actor playing a character is inherently more convincing than reading
about it. But, logically, if visual media are so convincing in their presentation that
audiences easily believe the story is reality, then Ennis’s point about mass-culture
visual media is compromised. Welcome Back, Frank may not be ‘[j]ust a laugh, a
thrill, and plenty of sustained automatic weapons fire for your buck’ but Ennis is
right in claiming that it is also ‘[n]ot a complex analysis of the causes of crime, not
a portrait of one man’s tragic descent into murderous psychosis, not an in-depth
examination of the vigilante down the ages’.58
Instead, stories like this one portray the protagonist as a hero, and bring to
mind Hilton’s comment about Robin Hood, that a character revered for his law-
breaking would now be called a terrorist. Characters like the Punisher trouble
the simplicity of Hilton’s statement, and establish a fascinating parallel between
the comic book superhero or anti-hero and Robin Hood: that these men who
deliberately violate the law in order to do what is ‘right’ and protect the innocent,
characters whose very existence depends on, first, audience acceptance of a state
of necessity for their actions and then further acceptance of a state of exception
to render those actions permissible, have saturated mass popular culture to the
extent that everyone with access to a television, radio, comic book, or the Internet
is and continues to be exposed to characters whose actions within the state of
exception are deemed heroic and thus normative. The state of exception has
become normative as a precondition for heroic action, and thus if heroic action is
positive, so too must be the state of exception.
The basic elements of the archetypical superhero are very similar to the traits
consistently repeated in the modern Robin Hood tradition: a man, roused
from a normal life by extraordinary circumstances, discovers within himself
immense power (literal or metaphorical) and realizes that he must put that
power or ability to use for more than merely selfish purposes, though he always
remembers his origins and keeps his private pain close to himself as a reminder
of what he has suffered and what others will suffer if he does not continue in
his (self-imposed) mission to help those who cannot help themselves. There are
comic book characters which are directly based on Robin Hood, such as DC
Comics’ Oliver Queen alias Green Arrow; some which admire Robin Hood
and model themselves after him, such as Marvel Comic’s Clint Barton alias
57
Tolkien, ‘On Fairy-Stories’, p. 61.
58
Ennis, Welcome Back, Frank, p. 4.
226 Valerie B. Johnson
Hawkeye,59 and others whose physical skills and frustration with the failures
of the juridical system have driven them to vigilante action, such as the Batman
(DC Comics) and the Punisher (Marvel Comics). All these superheroes are
based, for the most part, on the mass-culture Robin Hood of the twentieth
century, and Green Arrow and Hawkeye have inescapable connections to the
visual and behavioural models, respectively, established in the Flynn film.
More specifically, without the use of the state of exception, contemporary
superhero fiction finds it difficult to exist within the consciousness of popular
culture. The very concept of the superhero is one of spectacle and an exceptional
biological existence, which creates the need for a suspension of normal laws and
social rules in order to permit the superhero to function as a heroic figure. Kahn
notes that ‘[t]errorism creates a disproportionate fear because it combines a
moderate physical threat to the society with the high drama of entertainment’,60
and both DC Comics and Marvel — the two major competitors in the superhero
comic book market — frequently return to the reaction of the ‘man on the street’
to superheroes and their battles, and use these reactions to fuel individual stories
and provide motivation, and introspection, for characters. Superhero fights
are terrifying to the man on the street, particularly within the story world, and
almost always feature massive property damage to significantly populated urban
centres; to the audience of the comic book itself, the spectacle is highly dramatic
and entertaining.
Marvel’s 2006 company-wide crossover event, ‘Civil War’, attempted to
combine the entertaining spectacle of superhero fights, the concerns of the
fictional and law-abiding man on the street for those who do not obey the law
in order to protect him or to attack him, and a partial exploration of real-world
awareness of what superheroes do — what vigilantes with extra-ordinary powers
and resources do — and how the fictional worlds in which superheroes exist can
barely withstand critical scrutiny, particularly when superheroes are members of
extra-national, national, and private teams of peace-keepers. The event proved
to be commercially successful and though it did not always provide satisfying
resolutions for individual characters, Marvel’s writers and illustrators are still
using ‘Civil War’ as a touchstone. The event’s popularity, and its existence as a
59
Hawkeye greatly admires the Errol Flynn film, and makes specific reference to the movie
in ‘Lionheart of Avalon’ (pt 2 of 5) first published in The Avengers, 3:78 (New York: Marvel
Comics, 2004), pp. 9–10, an otherwise unremarkable story written by Chuck Austin and
illustrated by Oliver Coipel.
60
Kahn, Sacred Violence, p. 9.
Agamben’s homo sacer and the Modern Robin Hood 227