Critique of Violence

This will be the reading for January 2, 2016.  We will meet at 4:30.  Directions are here, and a printable copy is here.

Walter Benjamin’s “Critique of Violence”, published in 1921, is an analysis of violence as it relates to the law, as means and as ends.  He thinks that typical analyses of violence depend too much on its relation to ends, as in “the ends justify the means.”  Here, he is trying to describe violence in itself, as somehow abstracted from particular legal frameworks or ends.

The essay works through several pairs of terms.  First, he describes natural and positive law.  Natural law is primarily concerned with its ends, either God’s justice or Darwinian evolution, while positive law is primarily concerned with means.  However, they both agree that justified means and justified ends are related.  Since Benjamin is primarily concerned with violence as means, he focuses on positive law.  The legal system distinguishes between sanctioned and unsanctioned violence, and this pair turns out to depend on the difference between lawmaking and law-preserving violence.  Finally, he shows how law making/preserving violence infects a wide variety of social relations and political causes, and attempts to find a kind of violence that is “outside” the law (and so outside typical social relations, in a revolutionary sort of way): divine violence.

Violence and Law

The basic task of a critique of violence is explaining its relation to law and justice. For a legal system, the basic relationship is ends to means, and violence must always be a means, never an end in itself.  If violence is a means, we get the obvious question of whether or not it is justified in a given case.  But this does not tell us about violence itself, only about particular violent acts.  Benjamin begins with a description of two dominant forms of legal theory: natural law and positive law.  Natural law, for its part, deliberately avoids the question of violence in-itself, because it is only concerned with ends.  On the other hand, positive law sees violence as a product of history. Natural law criticizes ends; positive law criticizes means.  But they have something in common: just ends can be attained by justified means. Natural law tries to justify the means by the ends, and positive law tries to assure the justness of the ends by justifying the means.

In contrast with both, we need independent criteria of both just ends and just means.  He will use an element of positive law as a jumping-off point: its distinction between two kinds of violence, sanctioned and unsanctioned.  Positive law also distinguishes between natural and legal ends.

The European framework does not accept the natural ends of individuals in those cases where the ends could be pursued by violence.  The legal system tries to replace individual ends that could be pursued by violence with legal ends realized by legal power—perhaps an example is hitting someone to avenge an insult as opposed to suing them.  It also tries to limit by legal ends even those areas where natural ends are acceptable within certain boundaries, like education, once those natural ends are pursued with “an excessive measure of violence”, i.e. laws limiting authority to punish.

Generally, natural ends conflict with legal ends if pursued with violence.  From that, it follows that violence in the hands of individuals threatens the legal system.  The argument is that a system of legal ends cannot be maintained if natural ends are achieved violently.  He considers this a “mere dogma”, however, and points out that the law’s monopoly of violence is not to preserve legal ends, but to preserve the law itself.  Violence, not wielded by the law, threatens it not by its ends but by its mere existence.

Organized labor is the only other legal subject with a right to violence.  It could be objected that an omission of action, not working, is not violence.  That idea made it easier for governments to accept the idea of a  right to strike.  But the truth of that idea is restricted.  It is true that an omission can be nonviolent.  In the eyes of the state, a strike is an escape from the violence of the employer.  However, (most) strikes have a moment of extortion; the workers will return to work once demands are met, and that is a moment of violence. The conflict between labor and the state really appears in a revolutionary general strike.  The state would call that an abuse, while labor would say it is exercising its rights. The state declares such strikes illegal because the specific reasons for striking in one place cannot be prevalent in every workplace.  This indicates a contradiction; the right to strike is acknowledge unless it becomes a crisis. The the exercise of many rights could be violent if they threaten the legal system that has conferred it. This is an objective contradiction in the legal situation, but not a contradiction in the law, since sometimes violence is legal, sometimes not.  

What a strike shows is that violence “is able to found and modify legal conditions.”1  We could respond that this sort of violence is rare and isolated, but that is rebutted by thinking about military violence.  Military violence is usually predatory, entirely directed towards ends.  But even in primitive settings or after total victory, a peace ceremony is required, which indicates the new conditions are new “law”.  Military violence, as paradigmatic all of all violence for natural ends, shows us it is inherently law making.  Violence confronts the law with a possibility of a new law, which is why modern law takes the right to violence away from individuals.

WWI was the basis for a critique of violence in general. But violence was not only criticized for its lawmaking character: it was militarism that was criticized, which required conscription.  “Militarism is the compulsory, universal use of violence as a means to the ends of the state.” (6)   It is not violence for natural ends, but for legal ends, a law-preserving violence.  

We cannot just say—on pain of descending into childish anarchism—that any restraint is bad.  That just ruins any reflection on politics and morality, and so on any meaning in action.  Even an appeal to the categorical imperative, “act in such a way that at all times you use humanity both in your person and in the person of all others as an end, and never merely as a means”, is not enough, because positive law, if conscious of its roots, can claim to acknowledge and promote the interests of each individual.

The threat of law-preserving violence is not a deterrence; deterrence requires a certainty which contradicts the nature of a threat and cannot be attained by any law, since one can always hope to escape it.   The deeper purpose of the legal threat is tied to the sense of fate it comes from, and we can see hints in punishment.  Among punishments, capital punishment gets a lot of criticism.  While the arguments against it are sometimes superficial, it is rooted in a principle.  Defenders of capital punishment seem to recognize that “an attack on capital punishment assails, not legal measures, not laws, but law itself in its origins.” (7) If violence crowned by fate is the origin of law, then the highest violence (over life and death) is where the origins of law are most obvious.   

In older legal systems, the death penalty was used for things like offences against property, which seems out of proportion.  The purpose was not to punish the infringement of law but to establish new law.  In the struggle over life and death, law reaffirms itself.  

If violence as means is neither lawmaking or law-preserving, it loses all validity.  But violence as means is then implicated in the nature of law itself; so the question arises, are there nonviolent means for regulating human conflicts?

A totally nonviolent resolution can never lead to a legal contract.  However peacefully entered into, it leads to the possibility of violence.  It gives both parties the right to violence if the agreement is broken. Not only the outcome, but also the origin of contracts points to violence; not necessarily there as a lawmaking violence, but the power that guarantees the contract is of violent origin itself.  Benjamin says that when this latent violence inherent to every legal institution is forgotten, the institution falls into decay, and points to parliaments in his time as an example: “They offer the familiar, woeful spectacle because they have not remained conscious of the revolutionary forces to which they owe their existence.” (8) They forget that they represent lawmaking violence; “no wonder that they cannot achieve decrees worthy of this violence, but cultivate in compromise a supposedly nonviolent manner of dealing with political affairs.” (8) The decay of parliaments “has perhaps alienated as many minds from the ideal of a nonviolent resolution of political conflicts as were attracted to it by the war.” (8)

It is not possible to have a nonviolent parliament, because its decrees can only be linked to either lawmaking or law-preserving violence. Still, is there any possible nonviolent resolution of conflict?  “Without doubt.”  Some private relations are examples; nonviolent agreement is possible with a “civilized outlook” that “allows the use of unalloyed means of agreement.” (8)  Politeness, sympathy, trust, and so on are the conditions of such an agreement.  However, these unalloyed means are always indirect solutions, never direct.  They do not apply directly to the resolution of conflicts between people, but only to matters concerning objects, or goods.  In a very puzzling paragraph, he claims that these sorts of non-violent agreements depend on one very significant factor: there is no legal sanction for lying.  Benjamin takes this to mean that “there is a sphere of human agreement that is nonviolent to the extent that it is wholly inaccessible to violence: the proper sphere of ‘understanding,’ language.” (8)

It was only recently that language was caught up in violence with the penalties placed on fraud. Older legal systems thought deception had no power; apparently, lying was exempt from punishment in Roman and old Germanic law. Later law, “lacking confidence in its own violence, no longer felt itself a match for that of all others.  Rather, fear of the latter and mistrust of itself indicate its declining vitality.” (9)  It goes after fraud not from moral considerations but because of fear of the violence it might unleash in the offended party.  That fear reflects “a diminution of pure means.  For, in prohibiting fraud, law restricts the use of wholly nonviolent means because they could produce reactive violence.” (9)

There is one effective motive, apart from anything like virtues, to non-violently resolve conflicts: the threat of mutual disadvantage.  We see that in conflicts of interests between private persons all the time.  It is different when classes and nations are in conflict, since the mutual disadvantage is often hidden from the intelligence and feelings of most.  It is those hidden disadvantages that “constitute the most enduring motive for a policy of pure means.” (9)  Pure means, in politics, is like peaceful relations between private persons.

In class struggle, some strikes need to be seen as pure means.  Georges Sorel distinguished two kinds of strikes: the political and the proletarian general strike.The political strike strengthens state power; it transfers power from the privileged to the privileged.  The proletarian strike tries to destroy state power.  Quoting Sorel, it “nullifies all the ideological consequences of every possible social policy; its partisans see the most popular reforms as bourgeois.”   

The first is violent and lawmaking because it involves only external modifications of labor conditions; the second is pure means, nonviolent, and anarchic.  It is indifferent to material gain because of its intention to get rid of the state. Rather, it only intends to return to work after “a wholly transformed work, no longer enforced by the state, an upheaval that this kind of strike not so much causes as consummates.” (10)

None of the forms of violence permitted by either natural or positive law are free of the problems of legal violence.  However, if we completely exclude all violence in principle, we will never solve anything; therefore we need to know if there are other kinds of violence.  Legal dogma says there are just just means for just ends.  But what if those just means are in conflict with just ends; what if there was a kind of violence that was related to just ends not as justified or unjustified means, but in some other way?

Divine Violence

It is not reason that decides on the justness of means or ends, but “fate-imposed violence on the former and God on the latter.” (11)  We have a stubborn habit of thinking that just ends are the ends of a possible law — generally valid and capable of generalization.  “Generally valid” follows from the nature of law, but “capable of generalization” might contradict the nature of justice.  The ends in one situation might be just, but not in another situation.  

An angry man might be pushed to violence, but that violence is not a means to an end but a manifestation.  This sort of violence has objective manifestations that are subject to criticism: especially in myth.  Mythical violence, archetypically, is a manifestation of the gods’ existence.

The myth of Niobe is an example.2  It looks like Apollo and Artemis are only punishing, but their violence establishes a law more than it punishes for breaking one already existing.  Niobe’s arrogance brings fate upon her not because she broke a law but because she challenged fate: “Violence therefore bursts upon Niobe from the uncertain, ambiguous sphere of fate.”  (11)  

If this mythical violence looks just like lawmaking violence, then that is because of a problem in lawmaking violence, “insofar as the latter was characterized above, in the account of military violence, as merely a mediate violence.” (11)  The connection can also help explain fate, which always underlies legal violence, and to conclude the critique of it.  The actual goal of lawmaking violence is not any particular law, but power: law mixed with violence.  Lawmaking is power making, and as such, an immediate manifestation of violence.  This is its distinction from justice as such: “Justice is the principle of all divine end making, power the principle of all mythical lawmaking.” (11)

In a relationship of power established by constitutions, everyone is equal, in the sense of “Poor and rich alike are equally forbidden to spend the night under the bridges.”  Sorel also had something when he said that “in the beginning” all right was the prerogative of kings, and that it will remain so as long as it exists: “For from the point of view of violence, which alone can guarantee law, there is no equality, but at the most equally great violence.” (12)

In primeval times, borders were unmarked; they could be unwittingly infringed upon.  The intervention of law against that is not punishment, but retribution, and deliberately ambiguous.  Rather than being a more pure form of violence, this mythical violence is just legal violence.

There is an alternative to this mythic violence: “Just as in all spheres God opposes myth, mythical violence is confronted by the divine.  And the latter constitutes its antithesis in all respects.  If mythical violence is lawmaking, divine violence is law-destroying; if the former sets boundaries, the latter boundlessly destroys them; if mythical violence brings at once guilt and retribution, divine power only expiates; if the former threatens, the latter strikes; if the former is bloody, the latter is lethal without spilling blood.” (12)

Compare Niobe with God’s judgment of Korah, who led a rebellion against Moses only to be wiped out by fire from heaven.  The fire hit the Levites without warning or threat, “and does not stop short of annihilation.”  But it also atoned, and there is a connection between a lack of bloodshed and the atoning character of the violence, “For blood is the symbol of mere life.” (12)  

The dissolution of legal violence follows from the guilt of natural life, which consigns people to “retribution that ‘expiates’ the guilt of mere life — and doubtless also purifies the guilty, not of guilty, however, but of law.  For with mere life the rule of law over the living ceases.  Mythical violence is bloody power over mere life for its own sake, divine violence pure power over all life for the sake of the living.  The first demands sacrifice, the second accepts it.” (12)

The idea of extending divine power might make people freak out because it seems to give people the right to kill each other, but that’s wrong:  “For the question ‘May I kill?’ meets its irreducible answer in the commandment ‘Thou shalt not kill.’  This commandment precedes the deed, just as God was ‘preventing’ the deed.  But just as it may not be fear of punishment that enforces obedience, the injunction becomes inapplicable, incommensurable once the deed is accomplished.  No judgment of the deed can be derived from the commandment.  And so neither the divine judgment, nor the grounds for this judgment, can be known in advance.  Those who base a condemnation of all violent killing of one person by another not he commandment are therefore mistaken.” (13) The commandment is not a criterion of judgment, but a guideline for individuals and communities to wrestle with, “and in exceptional cases, to take on themselves the responsibility of ignoring it.” (13)

Some claim all life is sacred, even that of the oppressor: “If I do not kill I shall never establish the world dominion of justice. . . that is the argument of the intelligent terrorist. . . . We, however, profess that higher even than the happiness and justice of existence stands existence itself.” (Kurt Hiller, Das Ziel)  Benjamin says that is “false, indeed ignoble”, and “it shows the necessity of seeking the reason for the commandment no longer in what the deed does to the victim, but in what it does to God and the doer.  The proposition that existence stands higher than a just existence is false and ignominious, if existence is to mean nothing other than mere life—and it has this meaning in the argument referred to.” (13)

But there is a truth to it if “life” means “the irreducible, total condition that is ‘man’; if the proposition is intended to mean that the nonexistence of man is something more terrible than the (admittedly subordinate) not-yet-attained condition of the just man.” (13)  Further, “Man cannot, at any price, be said to coincide with the mere life in him, no more than with any other of his conditions and qualities, not even with the uniqueness of his bodily person.  However sacred man is (or that life in him that is identically present in earthly life, death, and afterlife), there is no sacredness in his condition, in his bodily life vulnerable to injury by his fellow man.” (13)

What distinguishes man from plants and animals?  “It might be well worth while to track down the origin of the dogma of the sacredness of life.” (13) The “idea of man’s sacredness gives grounds for reflection that what is here pronounced sacred was according to ancient mythical thought the marked bearer of guilt: life itself.” (13)

The critique of violence is the philosophy of its history, because only an idea of its development can help us in the present.  If we only look at the present, we will only see the rise and fall of lawmaking and law-preserving violence.  “The law governing their oscillation rests on the circumstance that all law-preserving violence, in its duration, indirectly weakens the lawmaking violence represented by it, through the suppression of hostile counter-violence.” (14)  That lasts until new forces found a new law.  The breaking of this cycle, maintained by mythical forms of law, would be the abolition of state power and the beginning of a new historical epoch.  An attack on law is not futile.  If we know violence outside the law exists, pure immediate violence, then revolutionary violence is possible.  

“Once again all the eternal forms are open to pure divine violence, which myth bastardized with law.  It may manifest itself in a true war exactly as in the divine judgment of the multitude on a criminal.  But all mythical, lawmaking violence, which we may call executive, is pernicious.  Pernicious, too, is the law-preserving, administrative violence that serves it.  Divine violence, which is the sign and seal but never the means of sacred execution, may be called sovereign violence.” (14)

1. Benjamin, Walter. “Critique of Violence.” Reflections: Essays, Aphorisms, Autobiographical Writings. Trans. E. F. N. Jephcott. Ed. Peter Demetz. New York: Schocken, 1978. 277-300. Print.

2. She was the daughter of Tantalus and had 14 children; she pridefully mocked the gods and suggested she deserved worship.  Apollo and Artemis killed her children, and she herself was turned to stone.

 

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