Reflections amid violence

(Photograph by Francesca Oggiano, from the series The Stolen Eyes)

in memory of Walter Benjamin

for n.m.

 

A historical materialist approaches a historical subject only where he encounters it as a monad.  In this structure he recognizes the sign of a Messianic cessation of happening, or, put differently, a revolutionary chance in the fight for the oppressed past.

Walter Benjamin, Theses on the Philosophy of History

 

As the many protests of spain’s united mareas ebbed to a close on the night of February 23rd, the police of Madrid could not resist a melee of violence.  The images call forth memories of earlier violence, a state violence that has marked the brief history of spain’s 15M.

(By Juan Robles Gonzalez)

Sadly there is nothing in any of this that is new.  An even modest enquiry into the history of working class movements reveals a tragic chronicle of state violence.  And nothing in our present testifies to any kind of different political reality.  And yet many insist that our time is not that of the past; that our democratic age, an age of the rule of law, provides the instruments, both legal and political, to contest and respond.  The violence acted out is thereby seen as excessive, symptomatic of state dysfunctions, rather than indicative of any intrinsic failure.  The documentary film Dérives is an eloquent and powerful example of this kind of gesture of accusation against police violence, in this instance the  that was thrown against the student led protests of the Printemps Érable of 2012, in Québec.

(By 99percentQC)

With no desire to diminish this effort, as a critique of violence though, it remains radically unsatisfactory; unsatisfactory because of its underlying assumption – an assumption that is false – namely, that under the rule of law, such violence can only be understood as a “dérive” from the normal functioning of state institutions.

Walter Benjamin’s 1920 essay, “Critique of Violence” provides tools to grasp the limits of such a critique, and equally, lays the basis for a more radical political opposition to the violence of State –Capital than any liberal pacifism is capable of sustaining.

Violence as a moral issue is connected with law and justice, with law conceived as the means to the ends of justice, however this latter is understood.  And violence is invariably tied up with the instrument of law.  Of any state violence, it can be asked if it is a means to just or unjust ends.  Assuming then just ends, the violence of legal authority may then be judged in the light of its consistency with the sought after goal.  The violence of Québec’s police is therefore deemed to have been disproportionate and accordingly inconsistent with the just end of democracy.

As Benjamin however quite rightly pointed out, an argument of this kind fails as a critique of violence as such, because it can at best serve to defend or reject violence in particular cases, and even then only if it is assumed that the end which the violence serves is clear and resistant to doubt.  (What “democracy” was at stake during the Printemps Érable?)  The question of whether violence as a principle can be morally justified remains open.  Indeed, the argument as developed can be employed to justify or condemn any particular example of violence.  It in other words resolves nothing. (277)

For Benjamin, talk of legal violence evaluated in the light of just ends, a perspective characteristic of natural law legal philosophy, helps little.  The philosophical tradition of positive law, by contrast, sees violence as a product of history; law, and its possible violence, is judged exclusively for what it is and from this perspective, that is, as a means.  Both theoretical positions share a dogma, a dogma expressed in the antinomy that just ends determine just means, verses just means define just ends.  However, the second view, expressive of positive law legal philosophy, permits a movement towards a critical criterion for a general reflection on violence. (278)

Historically, positive law distinguishes between sanctioned and unsanctioned violence.  How of course the distinction is to be grounded is not always obvious, but whatever answer is forthcoming, it has to do with the origin of the violence, which under specific conditions is considered to be acceptable.  That is, still under the inescapable logic of  means to ends, the distinction of sanctioned and unsanctioned violence depends on an historically relative judgement.  Violence acknowledged as legitimate by politically recognised ends is acceptable.  That which exceeds such ends falls outside the historical context and may therefore be judged as serving “natural” ends, not legal ends. (278-80)

As regards legal subjects then, the state does not admit actions justified by appeal to natural ends in cases where such ends can be usefully pursued by violence (e.g. theft to satisfy hunger, squatting for the needs of shelter, etc.).  The state, in such instances, endeavours to substitute for such natural ends, legal ends that may only be realised by legal means.  The state, in other words, sees violence in the hands of individuals as a threat to the legal system, though not because it contests legal ends and means, but because legal ends cannot be maintained if natural ends are pursued with violence. (280) This type of violence threatens not any specific legal end as such.  It is rather the legal edifice itself that is questioned or challenged.  The law cannot tolerate the extralegal in these matters. (281)

That this is the case, for Benjamin, is made evident in examples of where private violence is still permitted within the legal system.  Benjamin’s example is the working class right to strike.  The strike is a weapon of class struggle and as violence against Capital, it was forced upon the state as a right through the strength of working class militancy.  The state concedes defeat in the legal monopoly of violence.  But it is a concession with limits.  Should the strike be perceived as a threat (as the Québec student strike was and as any revolutionary strike will be), then the state will confront the agents of that violence as enemies.  More importantly, the history of the strike reveals that violence can effectively change or make law.  To the objection that such changes are rare and chance occurrences, the counter argument lies in the history of military violence, a history that reveals, beyond predation, a law-making character.  Furthermore, the First World War, according to Benjamin, demonstrates an additional dimension to the role of the military in the militarisation of the populations of the countries involved in the War.  National mobilisation became the rule, and the military served to subordinate citizens to the law, subordination to the legal purpose of war.  To law-making violence, the history of modern war demonstrates a military law-preserving violence. (283-4)

A critique of violence must therefore consider the role of violence in the constitution of law.  To not do so is to be blind to the history of law.  And to simply categorically reject such violence is to leave open the question, “what is the alternative?”  A pacifist rejection of violence ends in a rejection of all legal constraint of persons, at least as this constraint has functioned in the history of western political sovereignty; it ends in an indefensible infantile anarchism of  “what pleases is desirable.” (284)

No criticism of legal violence can accordingly be made simply in the name of a formless “freedom”, unless it is able to specify a higher order of freedom, a higher order of freedom that challenges the legal system “root and branch”. (285)

The dual violence of law-making and law-preserving is above all exemplified, for Benjamin, in a central institution of the modern state: the police.  (The increasing militarisation of the police and the parallel justification of military intervention as police action point to an even more dangerous expression of Benjamin’s original observations in this regard).  The police acts to preserve legal ends, but as its intervention in society expands and intensifies, it simultaneously appropriates the authority to effectively determine those ends within wide limits.  The separation of law-making and law-preserving violence is here suspended, which is to say that police violence is freed from the constraints which govern each kind of violence separately (the concern to be victorious and make law and the need to act in accordance with legally recognised ends).  The police then become then a force unto themselves. (286)  (Consider only, as an example, the role of the police in Greece over the last few years and their complicity with the neo-Nazi party, Golden Dawn).

“…the “law” of the police really marks the point at which the state, whether from impotence or because of the immanent connections within any legal system, can no longer guarantee through the legal system the empirical ends that it desires at any price to attain.  Therefore the police intervene “for security reasons” in countless cases where no clear legal situation exists, when they are not merely, without the slightest relation to legal ends, accompanying the citizen as a brutal encumbrance through a life regulated by ordinances, or simply supervising him. … Its power is formless, like its nowhere tangible, all-pervasive, ghostly presence in the life of civilized states. And though the police may, in particulars, everywhere appear the same, it cannot be finally denied that their spirit is less devastating where they represent, in absolute monarchy, the power of a ruler in which legislative and executive supremacy are united, than in democracies where their existence, elevated by no such relation, bears witness to the greatest conceivable degeneration of violence. (287)

All violence as a legal means is either law-making or law-preserving.  Independently of these aims, it loses all justification.  The violence however that is employed in either of these legal tasks is itself outside the law (law-making violence by its very nature, and law-preserving violence should circumstances demand, which may always be judged to be the case), and can have no legal sanction.  It is this that Benjamin calls the problematic nature of the law and what renders it so morally questionable. (287)

Are there then no non-violent means of resolving human conflicts?  If that resolution lies in a contract, then the answer for Benjamin is no, for violence manifests itself both when contracts are violated and as that which creates the conditions necessary for contracts (viz., a constituted legal order). (287-8) Benjamin’s conclusion is terrifying in its stark simplicity: “…every conceivable solution to human problems, not to speak of deliverance from the confines of all of the world-historical conditions of existence obtaining hitherto, remains impossible if violence is totally excluded in principle.” (293)

If it is not possible then to conceive of a law free of violence, what of violence free of law, a violence that points to a space-time outside of the means-ends logic of legal thought and institutionalised legal practice?

In a debt to the work of Georges Sorel, and returning to the idea of the strike, Benjamin distinguishes between the political and the proletarian general strike; a distinction that for him is essential to unveil a different kind of violence.  The political strike is a strike of means, the means to intervene and affect the economic-political order of the day.  And its success or failure is measured by its effectiveness in changing that order.  It aspires, in other words, to make the law, and calls upon whatever violence is judged necessary to fulfil that purpose.  No general critique of violence is possible from this perspective.  On the contrary, the political strike remains trapped in legal rationality.  The proletarian general strike, by contrast, seeks not to change the law, but to destroy it, along with the agent that makes and executes it, the state.  It consummates a reality, rather than causing changes to an existing reality.  It is anarchistic, rather than constituting.  The violence of the proletarian general strike, and herein lies its interest for Benjamin, is that of a pure means; not a means to an end, nor an end in itself, rather a permanent expression of a means as a means. (291-2) Put differently, it is a creative act that expresses nothing more than itself (or what Giorgio Agamben calls a gesture, the proper sphere of ethics). (68-9) It is a violence that does not seek to define a new legal order, a new sovereignty, but to place human life beyond the law in a space where its reality and its expression are one, in the moment.

The divine commandment, “thou shalt not kill” may be interpreted as a transcendent commandment and criterion of judgement for evaluating human behaviour.  The divinity, on such a reading, appears as a law-maker and the punishment for the violation of the law, whether executed by gods or humans, is the violence of law-preservation.  Divine law may also however be seen not as commandment, but as guide, which each is invited to assume and struggle to live with.  To fail in the latter is then not to will upon oneself the wrath of the law, but to fail one’s assumed form of life.

Benjamin’s pure violence is a way of being that embraces the divine violence of the messianic as the highest form of freedom.  And it is towards this “the kingdom of heaven” that the critique of violence politically must aspire to.

 

(This commentary is largely comprised of a rendering of Walter Benjamin’s essay, “Critique of Violence”, as published in Walter Benjamin, Reflections, New York: Schocken Books, 1986.  All references in the text are to this edition.  The only exception is a reference to a work by Giorgio Agamben: Moyens sans fins: Notes sur la politique, Paris: Payot & Rivages, 1995).

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