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