By Andy McLaverty-Robinson

In ‘Critique of Violence’, Benjamin seeks to relate violence to questions of law and justice. He also provides an unusual and intriguing theory of state power. The term ‘violence’ in this essay is rather misleading, as it encompasses all action which exerts force or power or social sanction – including for instance strikes, passive resistance, non-violent direct action and civil disobedience. Strikes count as ‘violent’ because they ‘extort’ the boss, even though they are an omission, not an action.

Contradictions of Legal Violence

According to Benjamin, legal violence is always contradictory. In a legal system, violence is always a means to an end. This leaves a constant problem over whether it is a justified means, even to a just end. For Benjamin this question is insoluble within the legal field, and this is a fatal flaw with just war theory and with theories of legitimacy.

Natural law theory sees no contradiction, because of the belief that people have an unlimited right to use violence prior to a social contract. These theorists see ends justifying means. Legal positivism sees violence as historical, allowing a critique of means. Both approaches are flawed in their connection of means to ends. They rely on a distinction between justified and unjustified violence. For Benjamin, violence is not simply a means to an end.

There are two types of ends. If there is ‘historical acknowledgement’ of ends, Benjamin terms them legal ends. Otherwise they are natural ends. All individuals pursue natural ends. However, European legal systems tend to assume that natural ends cannot lead to legitimate violence. It follows from this that all natural ends are ultimately in contradiction with legal ends. Any natural end could end up in conflict with the legal system and the state, if it had to be defended from the latter more-or-less forcefully (think of cases such as Dale Farm, the student protests, or the Stoke’s Croft uprising; and remember the double standard in which ‘violence’ is condemned without police violence being included in the condemnation). It follows from this that the state feels threatened by the simple fact that individuals or social groups can exercise power.

Benjamin dismisses the view that a ‘system of legal ends’ couldn’t exist unless individual violence was generally banned, calling it a ‘mere dogma’. People would still be able to pursue the ends which the law is meant to meet, or which are currently legal, even if there was no monopoly on violence. It would simply require a particular relation of force, not the disappearance of force beyond the state. If ends were generally recognised, they could still be pursued by means of law, even if the power to use violence was widespread and generalised (Somali xeer law would be an example of this).

Since this is the case, the threat the state feels in extra-legal violence is not a threat to the state’s ends. It is felt to be a threat from extra-legal violence as such to law as such. According to Benjamin, this suggests that the best foundation for a critique of the state is the aspect of violence which the state fears. Benjamin sees a range of critiques of the state as ineffective, including the appeal to desire, moral critiques, and critiques based on freedom.

Law and Fate

How do legal ends differ from natural ends? According to Benjamin, a legal order sees itself as representing and preserving an order ‘imposed by fate’. The association of law with fate is shown by the idea that ignorance of a law is no excuse for breaking it. What the state fears is the fact that violence can found and transform legal conditions. It alters social relations and the power-structure. Other social groups or states, using violence, can force the state to concede law-making power to them.  For instance, workers, using strikes, can force the state to concede the right to strike, which then lets organised workers determine how much they will tolerate in the workplace.

The state seeks to establish a boundary between law and violence, with law placed in the sphere of right and of non-violent social order. This, according to Benjamin, is why even overwhelming military victories are followed by peace ceremonies. The state is frightened of violence because violence shows that the present order is not determined by fate. Challenging or breaking any particular law means denying that the law is fate. This is why the state is so irrationally defensive of any particular law which is criticised or broken. Whereas laws are in fact multiple, fate is necessarily singular. If one law is not identical with fate, neither is the law in general.

One could think of ‘fate’ in terms of naturalisation, Barthesian myths, essentialism, the slogan ‘there is no alternative’, a generalised sense of powerlessness, or the acceptance of the existing system as an outer frame for thought and action. One could think of the negation of fate in terms of contingency, awareness of multiple possibilities, the slogan ‘another world is possible’, a sense that history can be changed, and the subordination of social production to desiring-production. Benjamin’s account of extra-legal violence here dovetails with ideas of constituent power, socially instituting imaginaries, “power-to”, and so on. It expresses what Graeber terms the primacy of creativity, which he juxtaposes to state violence.

The orders or discourses of fate and justice are incommensurable. Means which establish fate cannot consistently be used to pursue just ends. Just ends belong to a different order to that of fate. They come from a religious heritage and/or an idea of generalisability. Fate is by definition non-generalisable, and belongs to a mythical order. ‘Justice is the principle of all divine end-making, power the principle of all mythical law-making’.

No forms of state violence, natural law or positive law are free from the problems which beset all legal violence – the contradiction between fate and contingency, and the conflict between just ends and the ‘violence imposed by fate’. This renders all legal problems insoluble. Basically, it means that law can’t be justified, because its justification has to rest on contradictory claims.

To take a concrete example of the problem Benjamin is pointing to, consider the problem of legislating tolerance. The “just end” in this case is the elimination of discrimination. But in order to pursue this end, certain people are treated as “fated” to be punished. And these people are those who have unusual beliefs or are especially careless in what they say, or who are simply unlucky to draw media attention. This implicitly discriminates against certain psychological types, social classes, or people with certain kinds of problems. These people are “fated” to suffer in much the same way as the victims of the prejudices which are supposedly prohibited.

We might also think about the idea of protecting people from risk. The prohibition on violence is meant to make people safer, reducing the risk of randomly being victimised (a just end). But instead, people face the risk of being wrongly accused, or of losing self-control at the wrong time. This leads to the risk of being assaulted by the forces of the state, a fatalistic outcome which confounds the just end.

These are particular cases where a law can produce a similar injustice to the one it prohibits. For Benjamin, however, this kind of case is actually universal to all laws. All laws impose a regime of fate, because a court ignores the causes of someone’s actions and the suffering they will face from punishment. This implies a view of the world in which people are subject to fate and to a fatalistic order. And this view of the world contradicts the pursuit of just ends. Using law to pursue just ends is like using capitalism to create equality, or using fire to keep cool. It contains a kind of metaphysical end, worldview, or force which contradicts the explicit ends for which it is used. Yet since legal violence is always a means, it always has such explicit ends – it cannot exist solely as fate. It is always logically contradictory.

Benjamin also hints at a further contradiction. Law implies and requires its own transgression. It relies on deviance in order to exist. The regime of fate is such as to bring about the very offences it prohibits. The identity between mythical violence and legal violence shows legal violence to be pernicious, and its destruction obligatory.

Law-making and Law-preserving Violence

Benjamin distinguishes between three types of violence: law-making violence, law-preserving violence and law-destroying violence – as well as policing, which is ambiguous between the first two types, and non-violence.

Law-making violence serves to found a new order, or transform an existing order. Examples of law-making violence include wars between states, ‘criminal’ violence, strikes over pay and conditions, and the violence involved in founding a state or carving out a new state.

This discussion is related to the idea of ‘sovereign violence’, which suggests that a violent decision founds state power. The theory of sovereign violence was formulated by the far-right philosopher Carl Schmitt, critiqued by Benjamin, and is also central to Agamben’s theory of sovereignty. Law-making violence is about realising material ends, but it also asserts the power of a particular actor. As a result, law-making violence always ultimately guarantees power rather than property.

Law-preserving violence occurs when violence is used to pursue legal ends, rather than natural ends. What are legal ends?  Benjamin dismisses the idea of deterrence, which would make sense only if detection were certain. However, he insists that law-preserving violence operates via a constant threat. It is a means to keep the appearance of fate in place.

Disputes over conscription reveal the contradictions between these two types of violence, because of the anomaly of using law-preserving violence (the draft) to pursue law-making violence (a war). Disputes over capital punishment derive from the visibility of the origins of law in this practice. Fate shows itself in determining who lives and who dies. Awareness of this fatalist origin of law makes it seem rotten today.

Law-preserving violence paradoxically weakens the law-making violence which underpins it, because it suppresses others’ law-making violence. For instance, when the American state stops people from forcibly taking land by means of violence, it implicitly undermines its own basis in the violent occupation of the American continent by settlers. This ultimately also destroys law-preserving violence. Legal institutions fall into decay when their latent embodiment of violence disappears. This, according to Benjamin, is why parliaments are in decline.

Law-preserving violence is also always temporary, since eventually, a new or suppressed force will emerge to make a new law. Benjamin here endorses the cyclical view of power adopted by authors such as Ibn Khaldun, against the modernist view. He sees legal orders succeeding each other in a mythical cycle. However, he also seeks to break out of this cycle.

The distinction between law-making and law-preserving violence disappears in police practice. Policing is a kind of everyday sovereignty, because of the wide authority given to police to determine which ends are legal. The police do not exist to enforce the law, because they often operate outside and even against it, inventing ‘security reasons’ when no clear crime can be specified. Their arbitrary power is, according to Benjamin, most often unleashed to ‘rampage blindly’ against vulnerable minorities and dissidents, particularly those from whom the state does not feel it is protected by law.

Police violence is especially insidious since it lacks the limits of both kinds of violence: the requirement of victory in law-making violence, and the prohibition on inventing ends in law-preserving violence. It is a means for the state to achieve the ends it desires ‘at any price’, when it does not feel law is sufficient to obtain them. In contrast to law, which has a place and time of decision, policing operates as a ghostly, diffuse, amorphous presence. Ironically, the degeneration of police violence is worst in supposed democracies, where the police are not subject to a higher sovereign. Elsewhere, Benjamin argues that expanded democracy was a mixed blessing. It increased political corruption, because the elite used it as a way to stay in power.

All law-making, law-preserving and police violence becomes entangled in the problem of the nature of law, and is therefore pernicious.

Non-violent Conflict Resolution

Benjamin argues that non-violent conflict resolution is also possible, but it can never ground a legal contract. This is because any such conflict resolution leaves intact the possible recourse to violence in the event of the agreement being broken.

The usual motive for non-violent agreement is to avoid the mutual costs of violence. While common between individuals, such costs are concealed in class conflict and international war. Among states, a parallel kind of agreement occurs through diplomacy.  The pursuit of non-violent resolution leads to the formation of ‘forms and virtues’ which are not merely formalities. The implication of this analysis is that powerful actors will only use non-violent means if they face significant costs from a violent resolution. Hence, Benjamin suggests that social transformation is impossible without violence (in his broad sense of the term). Benjamin suggests that an additional form of violence, free from the problems of legal violence, needs to be theorised.

Language, as a field of ‘understanding’, is inaccessible to violence. Benjamin’s evidence for this claim is that lying was not historically criminalised. It has only been criminalised as law loses its confidence, and seeks to head off possible fights arising from fraud. (A critic might here offer counter-examples of oppressive, silencing discourse, epithets and so on, but it is likely that Benjamin has a particular kind of language in mind. His distinction between ‘naming’ and ‘judging’ is relevant here).

As law loses its power, legislation both expands to prohibit non-violent means (such as fraud), and concedes rights to ‘violence’, such as the right to strike. In both cases, the state acts to prevent violence it is afraid to oppose directly. Parliaments and contracts are not non-violent, because they are based on law. However, non-violent agreement constantly happens in everyday life, ‘wherever a civilized outlook allows the use of unalloyed means of agreement’. By ‘unalloyed’, Benjamin presumably means without the backing of violence. Benjamin here refers to ‘courtesy, sympathy, peaceableness, trust’ and other such sentiments as the basis for unalloyed agreements. However, Benjamin maintains that unalloyed agreements cannot occur in interpersonal conflicts, but only in ‘indirect’ conflicts over ‘objects’.

Law-destroying Violence

Law-destroying violence is the type of violence Benjamin believes will destroy the regime of fate. For Benjamin, this kind of violence is exemplified by the syndicalist concept of the revolutionary general strike, particularly as theorised by Sorel. Today, a more resonant parallel might be the insurrectionist idea of a total revolt which destroys the dominant structure, or the post-autonomist idea of a general exodus.

Such a revolt does not aim for a particular end, and hence is not law-making. It is a ‘pure means’, and hence, paradoxically non-violent. It is non-violent not in its ends or effects, but as a means. This paradoxical view of Benjamin’s is difficult to explain. If a revolt or strike for a specific end is violent, why is a revolt or strike to bring down the system non-violent? The answer, perhaps, is that the instrumental revolt or partial strike aims to impose a particular ordering of social relations, whereas the general strike or insurrection destroys the conditions for imposing any particular ordering. It doesn’t force others to live a particular way or submit to a particular will. Instead, it destroys the conditions for subordinating others. It is not a form of coercive sanction. It is ‘unalloyed violence’.

Law-destroying violence is associated with the divine (and justice), which is the antithesis of the mythical (and fate/law). Divine violence destroys rather than creates boundaries. It expiates guilt rather than avenging it. Even when it destroys or kills, it also expiates. It ends the rule of law over the living. It is unlike mythical/legal violence because it never destroys the soul.

The task of law-destroying violence is to destroy state power – hence, to destroy law-preserving violence. Law-making violence concentrates or distributes power, law-preserving violence maintains a concentration or distribution, law-destroying violence diffuses power. It seems to rupture all kinds of hierarchies. According to Sorel, in the moment of such revolts, programmes and utopian visions disappear. This is because the revolt does not impose them as a particular law. Law-destroying violence seems to be part of the same series as messianism, illumination, redemption, allegory and montage. It breaks, shakes up and rearranges existing relations.

Law-destroying violence escapes the contradictions of legal violence because it does not relate to just ends as a means. It is not an instrumental type of violence. Benjamin suggests it is similar to ‘non-mediate’, expressive violence. For instance, violence arising from anger is ‘not a means but a manifestation’. He also likens and distinguishes it from violence in mythology – the violence of gods which manifests their existence.

While law-making violence is expressive of the gods or of fate, law-destroying violence offers hope of escaping the order of fate. According to Benjamin, it is this possibility which causes people to idolise deviants. Since expressive violence can found a new law, fate and law-making violence are paradoxically founded on it. Hence, law-destroying violence turns out to underlie all forms of violence. It is ‘non-violent’ because it is expressive rather than instrumental. When Benjamin uses ‘non-violent’ in this context, he seems to mean ‘not legal violence’ and ‘not instrumental’.

The end of state power and law will found a new historical epoch. Benjamin thinks the fact that the rule of myth is already defied through deviance shows that the end of law is not far away. However, it is often impossible to tell if law-destroying violence has occurred. This is because the expiatory power of law-destroying violence is invisible.

Ethics Beyond Normativity

Benjamin also begins to reconstruct ethics. He distinguishes a divine ‘commandment’ from a fated or mythical ‘law’. The difference is that the law applies after as well as before the deed. A commandment applies only before the deed. It cannot be applied after the deed has happened. In effect, Benjamin suggests that ethics should only be used to advise or inspire actions in advance. It should not be used to judge people for their past actions.

Benjamin also suggests that a commandment grants each person the ability to decide when to ignore it. This effectively diffuses to everyone the power to ‘decide the exception’, which in legal regimes is the prerogative of the sovereign. Elsewhere, Benjamin claims that, even if a killing is moral, its legitimation is never moral. This is probably a result of the same idea. The relationship between ethics and action is to inspire the creation of an abundant, ethical world – not to regulate ever action.

The justification for commandments lies in what they do to the doer or to God, not primarily in their effects on the victim of a deed. Benjamin seems to be suggesting here, not that ends justify means, but that means should aim to construct a divine world. In less theological terminology, this might be said to be a world of abundance and immanence. It is the world he elsewhere refers to through ideas such as profane illumination, redemption, dialectical images and messianic time. It foreshadows Agamben’s idea of whatever-singularity.

Implications

Remembering that ‘violence’ is an extremely broad category in this work, Benjamin’s theory basically suggests the necessity of diffuse sanctions to ward off or destroy concentrated sanctions. It also suggests that expressive violence, and non-judgemental ethics, can serve as bulwarks against the emergence or persistence of regimes of fate. It is possible to multiply examples in which a threat of sanctions by social movements limits the actions of states. But it is difficult to tell when such situations are truly law-destroying, rather than simply law-making.  A case such as squat or shanty-town defence, or a reaction to a police killing, involves use of force which is partly expressive.  But it also works similarly to strikes, enforcing a particular ‘law’ which limits state power.

One might perhaps talk about law-destroying violence existing in stateless social groups. Clastres’ Archaeology of Violence, on the Aché/Guarani, and Rosaldo’s work on Ilongot headhunting are instructive in this regard. They discuss historical forms of ritualised conflict which are primarily expressive (“lengthening the heart” in Ilongot terminology), and which stabilise intergroup power and prevent concentrations of power. Recourse to warfare in cases where interpersonal obligations are breached is radically egalitarian in effect; the concentration of wealth invites raiding. In Clastres’ account, this kind of violence ‘wards off’ the formation of the state. But is it law-making or law-destroying? I would suggest it is law-destroying, because it is primarily expressive, even though it has instrumental effects (which are not necessarily intended).  While both the Aché and the Ilongot were quite violent (in a non-Benjaminian sense), it was historically more common for such intergroup raiding to be predominantly non-lethal and almost sportsmanlike.

Another analogy might be advanced, suggesting that law-destroying violence might not be a permanent feature of stateless societies. In the Andes, the ‘violence’ of nature is warded-off through attempts to establish a relationship of mutual respect. With proper respect for the river – what the North might call safety precautions – the danger of drowning is warded-off. Benjamin might view this as a variety of a discourse of fate. However, one can also think about it as an expressive relationship to nature.

One might think of a similar relation among humans, in which violence is prevented through attentiveness to others’ needs and the avoidance of triggers. Assuming that the humans concerned are primarily expressive, this would not be a question of threat-advantage. It would recognise the roots of anger in frustration and insecurity, and seek to create safe spaces. This would seem to be possible only in a world without concentrated power, since otherwise it is disrupted by power-asymmetries and top-down risks.

One must be careful here, however, as the expressive and instrumental can be fused in certain kinds of personalities where the instrumentalised self becomes the emotional locus. This leads to difficulties which recur in diffuse-power settings, and which can be very disillusioning for people seeking to reconstruct authentically human relations. But among people whose personality-structure is itself expressive, it is far more viable to approach violence in this way than through the paradoxes of law.

Andy McLaverty-Robinson is a political theorist and activist based in the UK. He is the co-author (with Athina Karatzogianni) of Power, Resistance and Conflict in the Contemporary World: Social Movements, Networks and Hierarchies (Routledge, 2009). He has recently published a series of books on Homi Bhabha. His 'In Theory' column appears every other Friday.