chapter  8
16 Pages

Abuse of Legality: The Illegal Use of the Legal

According to Walter Benjamin ‘All violence as a means is either lawmaking or lawpreserving’ (Benjamin 1986: 287). In this chapter the question is whether there is an a priori conceptual bar to legalizing resort to force and suppression of violence that is necessarily derived either from the nature of force or violence or the nature of law. This volume’s author proposes to answer this by exploring the hypothetical scenario, as outlined in Chapter 1, to investigate whether a court of law (as the central site of legal disputation) could or must decline to hear an allegation of aggression as ipso facto an abuse of its (legal) process. The hypothetical answer is that it could, but only as a matter of its particular jurisdiction and not as a general principle that force/violence are not amenable to legal process. Therefore, if the jurisdiction is vested, as in the case of the Nuremberg and Tokyo tribunals, then the prosecution of aggression is not an abuse of legality.