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 régime 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 façade 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.

Tags: Law, Power, Violence

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