Walter Benjamin’s ‘Critique of Violence’
[NOTES] origins of human legal systems in the laws of nature?
Following are my notes on Walter Benjamin’s essay ‘Critique of Violence’:
- violence re law and justice
- violence is defined in relation to morality
- justice <-> ends, legality <-> means
- violence cannot (morally) be an end in itself, it must be a means
- natural law: just ends: violent means to just ends: OK
- positive law: legal means: violence as a product of history (not justified)
- natural law attempts to justify means from just ends
- positive law attempts to justify ends from legal means
- circular logic: can means justify ends or ends justify means? they need their own independent criteria to break the loop
- ‘natural ends’: ends that nature has set for us (reproduction, protection of family, basic needs for food/water etc.)
- legal monopoly on violence: the legal system muscles out natural law
- violence outside the legal system undermines the legal system itself
key example: class struggle and the right to strike
- induced definition of violence: forcing the behaviour of another
- example: striking as expression of personal freedom: nonviolent; striking as means of forcing employer’s behaviour: violent/extortionate
- example: using the right to strike to overthrow the legal system that conferred the right to strike
key example: military violence (as lawmaking and law-preserving)
- violence as lawmaking (eg: war establishes new law)
- the legal system takes all violence into its remit so as to shut down the ability of third parties to make law
- legal system = the state
- the state fears non-state violence because of its lawmaking character (competition with the state)
- violence as law-preserving (denying the violence of competitive lawmaking — or self-assertion/defence) (eg: conscription)
- threat vs deterrence (possibility of evasion vs certainty of consequences)
- law-preserving violence is threatening, not deterring
- the law is always threatening, never deterring
- law <-> fate: fate overseen by the state, by people!
key example: capital punishment
- law originates in lawmaking violence — so ultimate violence (death) — is the most ‘awesome’ way to make law
- but this is rotten law: because the legal death sentence is barely related to the naturally fated death sentence: capital punishment exposes the (unnatural, naturally non-aligned) weakness of the legal system
key example: the police
- the police are agents of the state, enforcing legal ends, but simultaneously defining legal ends through eg interpretation — the separation of lawmaking and law-preserving violence is suspended!
- the state is not (by law) protected from thinkers — this is why the police are abusive towards thinkers: they are one of the state’s key means of defence against thinkers
- the ends of the police DO NOT coincide with the ends of the law: the state deploys the police in order to achieve ends that the legal system cannot provide or guarantee: the police police the grey area
- violence is either lawmaking or law-preserving: otherwise it is invalid (unethical)
- violence as a means, is inescapably implicated in the problematic nature of the law
key example: legal contract (inherently threatening [of violence])
- legal contract: right to force behaviour (violence) in case of non-conformance
- any power that guarantees a legal contract is of violent (lawmaking) origin
- when the violent lawmaking origin of institutions is forgotten, they decay (loss of credibility)
key example: nonviolent (non-forcing) conflict resolution in private sphere
- ?? non-violent (unalloyed, pure) means are NEVER those of direct solutions, always indirect solutions => therefore inapplicable between person/person conflict; applicable to conflict involving objects
- nonviolent conflict resolutions arises in conflict relating to material objects/goods
key example: fraud (prohibition of fraud as sign of legal system in decay)
- a weak state reserves its law-preserving violence
- illegal fraud forestalls violence in third parties (which would otherwise threaten the primacy of state violence)
- illegality of fraud weakens non-violent means (for fear of violent reactions)
- forestalling competitively lawmaking violence: right to strike (as non-violent substitute for violent alternatives)
key example: mutual disadvantage (as fundamental motivator for nonviolent conflict resolution)
- when social structures (eg, not individuals) are in conflict (eg nations/classes) — different rules apply (different dynamics are in play — to the extent that the role of the individual is dominated by higher order group dynamics)
key example: diplomats (nonviolent conflict resolution between states)
- before international political systems: international diplomacy is inherently non-violent… because it exists outside the realm of the law… and therefore of (justified) violence (which is inherently lawmaking and law-preserving)
key example: manifest violence (not a means, or an end, a pure expression)
key example: manifest violence example: mythical violence (violence borne by a personified fate/nature)
- lawmaking is power making => an immediate manifestation of violence
- ?? power <-> violence?
- mythical violence <-> lawmaking/preserving
- divine violence <-> law-destroying (expiatory — violence that breaks the cycle of violence)
key example: post-violent-conflict peacemaking (lawmaking->law-preserving -> establishing new law — that subjugates the defeated)
key example: frontier law: new behaviours interact with unwritten laws (fate: human mediated or otherwise), which punish those who break them: lawmaking in the process
- mythical (non-human) violence == legal violence!
- is this showing how human legal systems arise out of mother nature’s laws of fate, as the realm of human control expands into what was the realm of mother nature?
key example: ‘thou shalt not kill’ — not a judgement, but a commandment; no judgement is necessarily implied by a command!
fundamental dynamic: oscillatory legal systems: law-preserving violence undermines law-making violence by suppressing hostile counterviolence — until counterviolence arises which establishes a new law.
- abolition of state power is the only way out of this cycle (I disagree… these feels like a fundamental dynamic)
