Power, Violence, Law

Over the last two hun­dred years, the theory of right, now known as norm­ative jur­is­pru­dence, has dis­covered its vo­ca­tion in a frantic at­tempt to le­git­imise the ex­er­cise of power. It car­ries out this task by de­claring that law and power are ex­ternal to each other on­to­lo­gic­ally, polit­ic­ally, mor­ally, the two are in­volved in a zero-​sum game. In this story, law limits and hu­man­ises the ex­er­cise of power which finds its true nature when it fol­lows the pro­ced­ures and re­spects the values of law. The more rights people have, the less power there is; the more law-​abiding power is the more civ­il­ised and ac­cept­able its op­er­a­tion. Orthodox jur­is­pru­dence sees sov­er­eignty and mor­ality, politics and law, de­cision and norm as op­posite poles of a dia­lectic the ob­ject of which is the re­la­tion­ship between sub­jects and the sov­er­eign. Their re­spective weight de­term­ines the the­or­et­ical dir­ec­tion from Austin to Kelsen and from Schmitt to Dworkin. They all re­peat in a dif­ferent fashion and with dif­ferent em­phasis the be­lief in the op­pos­i­tion of law and power. These the­ories are cog­nit­ively wrong and mor­ally im­pov­er­ished. We see both daily. The former in the pro­lif­er­a­tion of the­ories of ‘in­dis­pens­able’ values and ‘fun­da­mental’ norms which re­main ab­stract, vague and mal­le­able to the ideo­lo­gical and aes­thetic pre­dilec­tions of politi­cians and law­yers. The latter in the moral de­cline of the ju­di­cial func­tion which can use the mor­al­istic sub­ter­fuges one learns in the Law Schools to jus­tify all types of injustice.

Critical theory in­formed by Nietzsche, Marx, Freud and Foucault aban­doned the the­or­et­ical frame­work of apo­lo­get­ical jur­is­pru­dence. The split, the bi­polarity between law and power, leg­ality and le­git­imacy, norm and ex­cep­tion is ideo­lo­gic­ally con­structed and only ap­parent. Law and power follow sim­ilar strategies of op­er­a­tion and be­long to the same re­gime of meaning. The two fields are closely in­ter­twined, they are both linked in the joint pro­ject of con­structing the (legal) sub­ject by op­er­ating on zoe, the life of hu­mans. As Agamben puts it, the spaces, the liber­ties and the rights his­tor­ic­ally won by pro­testers and rebels in their con­flicts with power pre­pared a tacit but in­creasing in­scrip­tion of in­di­viduals’ lives within the state order, of­fering a new and more dreadful found­a­tion for the very sov­er­eign power from which they wanted to lib­erate themselves.

Law is in­tim­ately con­nected with power and force. As Walter Benjamin put it, in his rad­ical re-​working of jur­is­pru­dence ‘Critique of Violence’, vi­ol­ence both founds and pre­serves the law. Law-​founding vi­ol­ence first. Most modern con­sti­tu­tions were in­tro­duced against the pro­to­cols of con­sti­tu­tional leg­ality that ex­isted at the time of their ad­op­tion, as a result of re­volu­tion, se­ces­sion, vic­tory or de­feat in war or co­lo­nial oc­cu­pa­tion. Revolutionary vi­ol­ence sus­pends the law and con­sti­tu­tion and jus­ti­fies it­self by claiming to be founding a new state, a better con­sti­tu­tion and a just law to re­place the cor­rupt or im­moral system it rebels against. At the point of its oc­cur­rence, vi­ol­ence will be con­demned as il­legal, brutal, evil. But when it suc­ceeds, re­volu­tionary vi­ol­ence will be ret­ro­spect­ively le­git­im­ized as means to the end of so­cial and legal trans­form­a­tion. Most legal sys­tems are the out­come of force, the pro­geny of war, re­volu­tion, re­bel­lion or oc­cu­pa­tion. This founding vi­ol­ence is either re-​enacted in the great pa­geants that cel­eb­rate na­tion and state-​building or for­gotten in acts of en­force­ment of the new law and of in­ter­pret­a­tion of the new constitution.

The French re­volu­tion has been ret­ro­spect­ively le­git­im­ized by its Declaration des droits de l’homme, the American by the Declaration of Independence and the Bill of Rights, the Greek con­sti­tu­tions emerged after dif­ferent types of lib­er­a­tion from pre-​existing op­pres­sion. These founding doc­u­ments carry in them­selves the vi­ol­ence of their found­a­tion, as they move from the ori­ginal act to its rep­res­ent­a­tions and in­ter­pret­a­tions. The American Bill of Rights is an ob­vious ex­ample. The vi­ol­ence of the mi­li­tias, so im­portant in the war of in­de­pend­ence, is per­petu­ated in the con­sti­tu­tion­ally pro­tected right to bear arms, which, some two cen­turies after the re­volu­tion, still keeps the United States in a state of war. Similarly, cap­ital pun­ish­ment re­pro­duces the founding vi­ol­ence of war in every ex­e­cu­tion, which ac­com­panies legal op­er­a­tions as the dark and em­powering side of legal nor­mality. These re­pe­ti­tions of the trau­matic gen­esis of the new law are re-​interpreted as de­mands of leg­ality and the ori­ginal vi­ol­ence is con­signed to ob­li­vion. Indeed one of the most im­portant strategies in this politics of for­get­ting is the cre­ation of a dom­inant ap­proach to legal in­ter­pret­a­tion. Once vic­torious, re­volu­tions or con­quests pro­duce in­ter­pret­ative models to read in re­turn, to give sense, ne­ces­sity and above all le­git­imacy to the vi­ol­ence that has pro­duced, among others, the in­ter­pret­ative model in ques­tion, that is, the dis­course of its self-​legitimation.

Even within well-​established and demo­cratic legal sys­tems, pop­ular vi­ol­ence shadows that of the state and moves the law in un­pre­dict­able and un­desir­able for the powerful ways. The law ac­cepts a lim­ited right to protest and strike and in this sense ac­know­ledges, in a re­luctant and fearful manner, that vi­ol­ence cannot be written out of his­tory. During the public dis­order and protests in the miners strike, the anti-​globalization demon­stra­tions, the December in­sur­rec­tion in Greece, com­ment­ators con­demned the pro­testers calling them ‘un­demo­cratic’, their vi­ol­ence ‘mind­less’. The ar­gu­ment is that in western demo­cratic and rule of law states, people have suf­fi­cient in­stru­ments to put pres­sure on gov­ern­ments and change policies and laws through the avail­able demo­cratic chan­nels. And yet, the his­tory of the West is re­plete of protests and riots and strikes which, con­demned as they were at the time, con­trib­uted hugely to the freedoms and rights we take for granted. The Diggers and Levellers, the Gordon riots and the Reform protests, the suf­fra­gettes and the civil rights move­ments, the pro­testers at the Athens Polytechinic, East Germany, Prague, Bucharest and Belgrade, to name only a few ob­vious cases, have changed con­sti­tu­tions, laws and governments.

Protests mostly chal­lenge the con­serving vi­ol­ence of law, breaking minor public order reg­u­la­tions in order to high­light greater in­justices. As long as pro­testers ask for this or that re­form, this or that con­ces­sion how­ever im­portant, the state can ac­com­modate it. What it is afraid of is the “fun­da­mental, founding vi­ol­ence, that is, vi­ol­ence able to jus­tify … or to trans­form the re­la­tions of law and so to present it­self as having a right to law.” The char­ac­ter­istic in­sec­urity the law feels in the face of its own found­a­tion makes it por­tray rad­ical protests and des­perate at­tempts to bring about re­form by un­con­ven­tional means onto chal­lenges to its founding au­thority, acts of re­volu­tionary up­heaval. The American civil rights marchers were often painted as com­mun­ists, the striking miners were called the “enemy within” and the pro­testers of Eastern Europe agents of the CIA. This ex­ag­ger­ated re­sponse shows how­ever that an in­ter­pret­ative and mean­ingful eval­u­ation of vi­ol­ence — a cri­tique of vi­ol­ence — is pos­sible only if we re­cog­nize meaning in a vi­ol­ence that is not an ac­ci­dent ar­riving from out­side law or a con­tin­gency of a so­ci­olo­gical nature.

And cer­tainly the vi­ol­ence of in­sur­rec­tion and re­bel­lion is not ‘mind­less’. Talking to the re­belling youth of Athens last December, you sensed a thoughtful, in­quiring, philo­soph­ical at­ti­tude to the rav­ishes of neo-​liberal cap­it­alism and po­lice bru­tality. These rebels and ‘hoodies’ were people who in the vi­cinity of the an­cient monu­ments were doing ex­actly what Socrates in­aug­ur­ated in his sym­posia. They were chal­len­ging the doxa (common sense) of our times steeped into ser­ious thinking and deep com­mit­ment. You could not find any of this in the media com­ment­ators and politicians.

Law-​preserving force next. “Every jur­idical con­tract … is founded on vi­ol­ence” says Jacques Derrida and the legal aca­demic Robert Cover agrees: “Legal in­ter­pret­a­tion takes place in a field of pain and death.” The in­tricate re­la­tion­ship of law and force per­vades all as­pects of legal op­er­a­tions. There is no law, if it cannot be po­ten­tially en­forced, if there is no po­lice, army and prisons to punish and deter pos­sible vi­ol­a­tions. In this sense, force and en­force­ment are part of the very es­sence of leg­ality. Modern law coming out of the end­less feuds of princes and local chiefs claimed a mono­poly of vi­ol­ence in the ter­ritory of its jur­is­dic­tion and used it to pro­tect the ends and func­tions it de­clares legal, but also to pro­tect the em­pire of the law it­self. This vi­ol­ence that fol­lows the law routinely and forms the back­ground against which in­ter­pret­a­tion can work. It guar­an­tees the per­man­ence and en­force­ab­ility of law. There are two as­pects to the vi­ol­ence that con­serves the law.

Legal judg­ments are state­ments and deeds. They both in­ter­pret the law and act on the world. A con­vic­tion and sen­tence at the end of a crim­inal trial is the out­come of the ju­di­cial act of legal in­ter­pret­a­tion, but it is also the au­thor­iz­a­tion and be­gin­ning of a variety of vi­olent acts. The de­fendant is taken away to a place of im­pris­on­ment or of ex­e­cu­tion, acts im­me­di­ately re­lated to, in­deed flowing from, the ju­di­cial pro­nounce­ment. Again as a result of civil judg­ments, people lose their homes, their chil­dren, their prop­erty or they may be sent to a place of per­se­cu­tion and tor­ture. The founding and con­serving vi­ol­ence of law cannot be sep­ar­ated as Benjamin and Cover tried to do. The two types of vi­ol­ence are in­ter­twined and con­tam­inate each other, as con­tem­porary acts of legal “con­ser­va­tion” or in­ter­pret­a­tion re­peat and re-​establish the ori­ginal law-​making vi­ol­ence which es­tab­lishes the new law.

The re­cent turn of jur­is­pru­dence to her­men­eutics, se­mi­otics and lit­erary theory has fo­cused on the word of the judge and for­gotten the force of the word. The meaning seeking and meaning-​imposing com­ponent of judging is ana­lyzed as reasoned or prag­matic, prin­cipled or dis­cre­tionary, pre­dict­able or con­tin­gent, shared, share­able or open-​ended ac­cording to the polit­ical stand­point of the ana­lyst. The main if not ex­clusive func­tion of many judg­ments is to le­git­imize and trigger past or fu­ture acts of vi­ol­ence. The word and the deed, the pro­pos­i­tion and the sen­tence, the con­stative and the per­form­ative are in­tim­ately linked.

Legal in­ter­pret­a­tions and judg­ments cannot be un­der­stood in­de­pend­ently of this in­es­cap­able im­plic­a­tion in vi­olent ac­tion. In this sense, legal in­ter­pret­a­tion is a prac­tical activity, other-​orientated and de­signed to lead to ef­fective threats and — often vi­olent — deeds. This vi­ol­ence is evident at each level of the ju­di­cial act. The ar­chi­tec­ture of the courtroom and the cho­reo­graphy of the trial pro­cess con­verge to re­strain and phys­ic­ally subdue the body of de­fendant. From the defendant’s per­spective, the common but fra­gile facade of ci­vility of the legal pro­cess ex­presses a re­cog­ni­tion of the over­whelming array of vi­ol­ence ranged against him and of the help­less­ness of res­ist­ance or outcry. But for the judge too, legal in­ter­pret­a­tion is never free of the need to main­tain links with the ef­fective of­fi­cial be­ha­vior that will en-​force the state­ment of the law. Indeed, the ex­pres­sion “law en­force­ment” re­cog­nizes that force and its ap­plic­a­tion lies at the heart of the ju­di­cial act. Legal sen­tences are both pro­pos­i­tions of law and acts of sentencing.

Legal in­ter­pret­a­tion then is bonded, bound both to the deeds it trig­gers off and the ne­ces­sary con­di­tions of ef­fective dom­in­a­tion within which the sen­tence of the law will be en­forced. Without such a set­ting that in­cludes a for­mid­able array of in­sti­tu­tions, prac­tices, rules and roles — po­lice, prison guards, im­mig­ra­tion of­ficers, bailiffs, law­yers etc — the ju­di­cial word would re­main a dead letter. All at­tempts to un­der­stand legal judg­ments and ju­di­cial decision-​making as ex­clus­ively her­men­eut­ical are in­com­plete. Legal in­ter­pret­a­tions be­long both to ho­ri­zons of meaning and to an eco­nomy of force. Whatever else judges do, they deal in fear, pain and death. If this is the case, as­pir­a­tions to co­herent and shared legal meaning are li­able to flounder on the in­es­cap­able and tragic line that dis­tin­guishes those who mete out vi­ol­ence from those who re­ceive it. Legal de­cisions lead to people losing their homes or chil­dren, being sent back to per­se­cu­tion and tor­ture: legal in­ter­pret­a­tion leads to people losing their lives.

But there is also the vi­ol­ence of lan­guage it­self. The law is full of ex­amples in which people are judged in a lan­guage or an idiom they do not un­der­stand. This is the standard case with asylum-​seekers who are routinely asked by im­mig­ra­tion of­fi­cials to present their case and to re­count the bru­tal­ities and tor­ture they have suffered in a lan­guage they do not speak. For Jean-​Francois Lyotard an ex­treme form of in­justice is that of an eth­ical tort or dif­f­erend, in which the in­jury suffered by the victim is ac­com­panied by a depriva­tion of the means to speak about it or prove it. “This is the case if the victim is de­prived of life, or of all liber­ties, or of the freedom to make his or her ideas or opin­ions public, or simply of the right to testify to the damage, or even more simply if the testi­fying phrase is it­self de­prived of au­thority … Should the victim seek to by-​pass this im­possib­ility and testify anyway to the wrong done to her, she comes up against the fol­lowing ar­gu­ment­a­tion, either the dam­ages you com­plain about never took place, and your testi­mony is false; or else they took place, and since your are able to testify to them, it is not an eth­ical tort that has been done to you.”

When an eth­ical tort has been com­mitted the con­flict between the parties cannot be de­cided equit­ably be­cause no rule of judg­ment ex­ists that could be ap­plied to both ar­gu­ments. In such in­stances, lan­guage reaches its limit as no common lan­guage can be found to ex­press both sides. The vi­ol­ence of in­justice be­gins when the judge and the judged do not share a lan­guage or idiom. It con­tinues when all traces of par­tic­u­larity of the person be­fore the law are re­duced to a re­gister of same­ness and cog­ni­tion mastered by the judge. Indeed all legal in­ter­pret­a­tion and judg­ment pre­sup­pose that the other, the victim of language’s in­justice, is cap­able of lan­guage in gen­eral, man as a speaking an­imal. But as the Scottish poet Tom Leonard put it:

And their judges spoke with one dia­lect,
But the con­demned spoke with many voices.

And the prisons were full of many voices,
But never the dia­lect of the judges.

And the judges said:
“No one is above the Law.”

Let me con­clude with four theses on the re­la­tion­ship between power, vi­ol­ence and norm­ative systems.

Thesis 1

The con­flict between vi­ol­ence and law is more ap­parent than real. It should be re­placed with an ex­am­in­a­tion of the am­algam violence/​law, in which vi­ol­ence is placed at the ser­vice of law and cre­ates law while law both uses and be­gets violence.

Thesis 2

State vi­ol­ence pro­tects dom­inant in­terests and the es­tab­lished bal­ance of power, but it is al­ways ex­er­cised in the name of norm­ative ends (even if highly ab­stract and gen­eral such as God, Nation, Law, Peace or Humanity). The vi­ol­ence sus­taining the struc­ture of dom­in­a­tion is that of means to­wards ideal ends. This is the ideo­lo­gical pro­cess par excellence.

Thesis 3

All force leads to counter-​force, all vi­ol­ence to counter-​violence, all sys­tems of dom­in­a­tion create resistances.

Thesis 4

Systems of dom­in­a­tion, such as neo-​liberal cap­it­alism are sup­ported by a struc­tural or­gan­isa­tion of vi­ol­ence, which co­erces, crim­in­al­ises and dis­poses those who resist it or are sur­plus to its re­quire­ments. The con­dem­na­tion of ‘sub­jective’ vi­ol­ence is hy­po­crit­ical if it is not ac­com­panied by that of sys­temic or ‘ob­jective’ violence.

  5 comments for “Power, Violence, Law

  1. Dave
    20 February 2012 at 2:14 am

    Here’s a cor­rec­tion. This art­icle states: “As Wendy Brown puts it, the spaces, the liber­ties and the rights his­tor­ic­ally won by pro­testers and rebels in their con­flicts with power pre­pared a tacit but in­creasing in­scrip­tion of in­di­viduals’ lives within the state order, of­fering a new and more dreadful found­a­tion for the very sov­er­eign power from which they wanted to lib­erate themselves.”

    However, this is from Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Stanford UP, 1998, p. 121: “It is al­most as if, starting from a cer­tain point, every de­cisive polit­ical event were double-​sided: the spaces, the liber­ties, and the rights won by in­di­viduals in their con­flicts with central powers al­ways sim­ul­tan­eously pre­pared a tacit but in­creasing in­scrip­tion of in­di­viduals’ lives within the state order, thus of­fering a new and more dreadful found­a­tion for the very sov­er­eign power from which they wanted to lib­erate themselves.”

  2. Dave
    20 February 2012 at 2:37 am

    The fol­lowing lan­guage is drawn from an art­icle without at­tri­bu­tion: “The re­cent turn of jur­is­pru­dence to her­men­eutics, se­mi­otics and lit­erary theory has fo­cused on the word of the judge and for­gotten the force of the word.…”

    Here is the art­icle (from 1991) where this lan­guage ap­pears:
    http://​www​.spring​er​link​.com/​c​o​n​t​e​n​t​/​p​2​t​t​4​0​8​6​1​q​l​5​1​3​51/

  3. Admin
    20 February 2012 at 9:02 am

    Dear Dave,

    Many thanks for your com­ments, which are, how­ever, slightly strange. We have altered the first ref­er­ence — as you will see above. However, the au­thor does not feel the need to alter the second.

    Your en­gage­ment is strange, as you ap­pear to have gone through the art­icle searching for minor er­rors, in­stead of en­ga­ging with the con­tent. The idea be­hind these blog posts is pre­cisely to en­gage in the mo­ment with real con­cerns and is­sues. I wonder do you in­tend to look through all of our back-​catalogue and find misat­tri­bu­tions and maybe spelling er­rors? If you do in­tend to spend such an amount of time on the site, may I sug­gest in­stead that you think about the con­tent rather than the form?

  4. Dave
    20 February 2012 at 12:04 pm

    I think the con­tent is most in­ter­esting and helpful. I wasn’t searching for minor er­rors, but I just happened to be aware of the sources of the con­tent as I was reading this. I think my posts are useful re­garding the con­tent, and are not about form. For ex­ample, if Wendy Brown uses the word “sov­er­eign” it has a dif­ferent con­tent than if Giorgio Agamben uses the word “sov­er­eign.” So a cor­rec­tion of the source changes the con­tent and meaning.

    Also, I think that a gene­a­logy of ideas is im­portant — con­tent doesn’t exist on its own but is in­fused with its his­tory. So it’s can be im­portant for delving into the con­tent to know its genealogy.

    For ex­ample, looking at this para­graph from the above post (and text in the para­graphs that follow):

    “The re­cent turn of jur­is­pru­dence to her­men­eutics, se­mi­otics and lit­erary theory has fo­cused on the word of the judge and for­gotten the force of the word. The meaning seeking and meaning-​imposing com­ponent of judging is ana­lyzed as reasoned or prag­matic, prin­cipled or dis­cre­tionary, pre­dict­able or con­tin­gent, shared, share­able or open-​ended ac­cording to the polit­ical stand­point of the ana­lyst. The main if not ex­clusive func­tion of many judg­ments is to le­git­imize and trigger past or fu­ture acts of vi­ol­ence. The word and the deed, the pro­pos­i­tion and the sen­tence, the con­stative and the per­form­ative are in­tim­ately linked.”

    It is useful to know for gene­a­lo­gical pur­poses (and for fur­ther reading) that the above text (and fol­lowing para­graphs) mir­rors this text from Costas Douzinas and Ronnie Warrington, “‘A Well-​Founded Fear of Justice’: Law and Ethics in Postmodernity,” Law and Critique, Vol. II, 2 (1991), pp. 115 – 116:

    “The re­cent turn of jur­is­pru­dence to her­men­eutics, se­mi­otics and
    lit­erary theory has fo­cussed on the word of the judge and for­gotten
    its force. The meaning seeking and meaning im­posing com­ponent of judging is ana­lysed as reasoned or ca­pri­cious, prin­cipled or dis­cre­tionary, pre­dict­able or con­tin­gent, shared, share­able or open-​ended ac­cording to the polit­ical stand­point of the ana­lyst. But as Cover has re­minded us, in our ob­ses­sion with her­men­eutics we forget that ‘legal in­ter­pret­a­tion takes place in a field of pain and death.’ The main if not ex­clusive func­tion of many judg­ments is to le­git­imise and trigger off past or fu­ture acts of vi­ol­ence. The word and the deed, the pro­pos­i­tion and the sen­tence, the con­stative and the per­form­ative are in­tim­ately linked.”

    I just happened to be aware of these two texts and wanted to point this out to en­rich the content.

  5. Admin
    20 February 2012 at 3:31 pm

    Then many thanks for your thoughts. I would add that at­tri­bu­tion and ref­er­en­cing has in­creas­ingly be­come fet­ish­ized. I ima­gine it is con­nected to levelling-​down thought, to do with equi­val­ence and lo­gics of cap­ital (Im thinking in par­tic­ular of cita­tion in­dexes as a measure of how ‘good’ or ‘valu­able’ a work is). While I agree that it is useful in terms of a gene­a­logy, to as­sert that some­thing is ‘taken’ from an­other work — the im­plic­a­tion being that it is ‘stolen’ — is to re­as­sert the com­modi­fic­a­tion of thought. But, I com­pletely ac­cept that this is not your pur­pose, that your com­ment comes from a sup­port for the ideas rather than some sort of attack.

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