Law and violence

The previous chapter pushed the analysis of sovereignty beyond the natural law of survival as a rationale for legal authority and instead considered its biopolitical dimension, evident in a state of exception. The Lacanian ethical view was helpful in de-naturalising the idea of life and in re-imagining it as a limit between zones of activity in the relation of law and desire, a perspective on the good that is as new in ethics as Jonas’ definition of life and the moral law. The focus enabled my examination to go beyond the ‘missing’ element in Agamben’s conceptualisation of biopolitics that has caused a critical impasse. What was revealed was a utopian relation to violence which had to do with the role of violence in the configuration of sovereignty. This chapter will continue this line of inquiry and look at the role of violence in the biopolitical thesis, which is premised on the political nature of imperatives of survival and living well. It will consider several emerging areas of legal and political thought that are taking up biopolitical notions in different ways. Agamben’s own thesis is heavily informed not only by Foucault but also by Walter Benjamin, and in particular by a short text that Benjamin wrote against the backdrop of the extreme political turbulence of post-World War I Germany, on the relationship between law and violence. Benjamin’s text ‘Critique of Violence’ is a meditation on the relationship

between law and violence. It begins by assessing the seeming paralysis of the dominant trends in legal thought on the question of the coercive element of law. The positivist view would regard the issue in terms of the criteria for the legitimate use of legal violence internal to a given legal order. The coercion is legitimate if it meets the criteria of legality from the perspective of a judge, for example. This emphasises the normativity of law at the expense of the brutality of law (Davies 1996; Lacey 2002: 118; see also Raz 1979). Violence is evaluated as a means to an end. If it is a legal end the coercion is justified. Benjamin points out how this opposing view of natural law also thinks of the relationship between violence and law in terms of means and ends. Thus, both approaches refer to the status of the criteria for cases of the use of violence. Benjamin felt that the positive view of law went beyond the natural law view, neither could justify violence as a means in principle regardless

of the end, or whether violence, in principle, could be a just means to an unjust end (Benjamin 1978: 278). Thus, Benjamin undertakes his critique by looking at the question of

whether it is possible to discriminate the use of violence within the sphere of means themselves and without regard for the ends they serve. The question of violence as means alone implicates both its use outside the rule of law and within the bounds of legality. Law, however, always depends on violence. The establishment of law is signalled by the cessation of law-making violence, for example in the case of an occupation or civil war. The violence remains operative subsequently in the legal order in law-preserving forms, for example in the criminal law power of state. However remote law-founding violence may seem, it remains latent in the form of law itself. The means/ends relation of violence and law powers the ‘mythical’ machine of sovereignty and gives it a naturalised air (Benjamin 1978: 294). From a historical perspective, law is a structure or formation based on a rhythm of rising and falling violence in relation to law-making and law-preserving forms. The essential quality of law-making violence can be seen in ancient myth.

Benjamin refers to Niobe in this context. As discussed in Chapter 3, Niobe boasted to having more children than Zeus; in response her children were killed by the gods. This fate was sent not as a punishment for having violated a law but rather as a manifestation of power. Até is law-founding in this sense. In the modern context, law-founding is associated with an original violence that is subsequently rationalised and normalised in the rule of law and subsequently acts to suppress hostile counter-violence. The cessation of war or civil unrest is signalled by a peace ceremony and the establishment of constitutional law. Subsequent legal coercion preserves this earlier founding violence and the dialectic lasts until new forces or the forces earlier suppressed triumph and found a new law. Benjamin’s position is therefore that law is inseparable from violence, but perhaps violence is not essentially connected to law. If the existence of violence outside the legal sphere can be assured, a pure immediate violence unalloyed to any ends, then there is the possibility of real ‘revolutionary’ action that could enact a profound political transformation (Benjamin 1978: 300). Benjamin explores this possibility in the context of the right to strike, and

more specifically the difference between a partial strike and a general strike. The former is afforded to citizens by the state while the latter is not. He begins by addressing whether it is appropriate to call a strike violent when it involves simply a withdrawal of activity. Granted, there is certainly the objection that an omission of action, a non-action, which a strike certainly is, cannot be described as violence, but Benjamin responds that the truth of this is not unconditional (1978: 291). He continues: