In December 2024, two events occurred which can help us to understand the relation between violence and law in line with the critique outlined over a century ago by Walter Benjamin. Let’s begin with the more recent event, which emerged in two parts. First, on 6^th December, Judge Maxwell Wiley dropped the charge of manslaughter against Daniel Penny, the US Marine Corps veteran who killed unhoused Black man Jordan Neely on a New York City subway in May 2023. Three days later, Penny was found not guilty of criminally negligent homicide. 

Several days prior, while the jury in Daniel Penny’s case was under deliberation, the CEO of UnitedHealthcare Brian Thompson was shot and killed outside of a hotel in New York. At time of writing, authorities have arrested and charged Luigi Mangione for the killing, having found him in Altoona, PA in possession of a 3D-printed pistol, a so-called ‘manifesto’ criticising the US healthcare system, and multiple fraudulent IDs. 

Both Penny and Mangione have become subject to widespread controversy, as well as widespread popular support. This support, however, has come from quite different camps: where Penny has been feted by the ascendant political right, embraced by President-elect Donald Trump and Vice-President-elect JD Vance who invited him as a guest to an Army-Navy football game, Mangione’s popularity has developed among more left-wing critics of the US healthcare industry. After the death of Brian Thompson, a huge outpouring of vitriol towards the CEO and the health insurance system as a whole emerged on social media, with many labelling Mangione a folk hero. People have pointed out that while Mangione’s act of overt violence has made headline news and led to a massive deployment of law enforcement, the practices of private health insurance companies cause immense suffering and death without facing any legal sanctions. 

The dividing lines seem quite stark, but are they coherent? Traditionally, it is the right which has lionised and fetishised vigilantes – the power fantasy of becoming judge, jury, and executioner and enacting harsh justice on those deemed to be acting illegally or immorally has long been associated with more right-leaning, authoritarian tendencies. This holds true in the case of Daniel Penny but seems to fall apart when it comes to Luigi Mangione: alongside the mainstream media’s condemnation of Mangione’s (alleged) actions, we have seen significant outrage coming from leaders of the American right-wing, including Donald Trump himself. On the other hand, the left has condemned vigilantes such as Penny for taking the law into their own hands and using excessive violence, but many are willing to sympathise with Mangione and even raise money for his legal defence. Is this a case of hypocrisy, then, with both sides praising or condemning a vigilante killing depending on political optics?

I want to argue that it is not, that in fact Penny and Mangione’s acts in fact represent drastically different forms of violence with altogether different relationships with law and justice. For Walter Benjamin, a standard way of distinguishing different forms of violence in terms of their relationship to means and ends. Violence, as it relates to the law, can manifest either as a means to establish law or as a means to preserve law: it can be either law-positing or law-preserving. In Benjamin’s terms, law-positing violence is the violence which founds the law, the legal system, and the state; he writes about the establishment of new borders after a war as a case where a new law is established through violence. Law-preserving violence, by contrast, is violence which is directed towards pre-existing legal ends; here the example he uses is mandatory conscription into the armed forces which seeks to preserve the legal order of the state. 

Benjamin, however, deconstructs this distinction between law-positing and law-preserving violence by examining the violence of capital punishment and the police. In both cases, he argues, we cannot meaningfully separate law-positing and law-preserving violence. Capital punishment, according to Benjamin, is more than just one form of punishment among many; as a form of violence which exercises power over life and death, it is foundational to law itself. The police, meanwhile, exercise violence in order to preserve the law but also intervene where no law exists and thus posit ‘new’ laws through their actions. 

We can utilise this understanding of violence and its relation to law in order to better analyse the actions of Daniel Penny and Luigi Mangione, as well as the seemingly contradictory responses to them. First, Daniel Penny. His action seems to align neatly with that of law-preserving violence and in many ways aligns with a form of police violence. Under a racial capitalist legal order, the violence which Penny enacted is not disruptive to the normal functioning of things. Rather, it was the actions of Jordan Neely – an unhoused Black man with a history of mental illness who was expressing his pain over his living conditions – which was deemed to be threatening. The very origins of police institutions in the United States speaks to this: some of the earliest forms of police power were those deployed to capture and return runaway slaves, a purpose which was sustained even after formal abolition through vagrancy laws intended to arrest vagrant Black people and send them to prisons where slave labour was still permitted. In the United States, vagrant Black persons have thus always been deemed threatening to the smooth operations of social order and have therefore faced the brunt of legalised violence. Daniel Penny’s actions and subsequent acquittal speaks to the ways in which the violence which preserves the law can be and often has been deputised to citizens who engage in vigilante violence against marginalised persons deemed to be threatening the racial capitalist social order. Daniel Penny’s actions were, like those of the police and the executioner, at once law-positing and law-preserving: they preserved the racial capitalist legal order in dealing with a supposed threat to its functioning and they posited the right of citizens to enact and enforce this order in turn. 

What, then, of Luigi Mangione? His act of violence stands in stark contrast to that of Penny insofar as it cannot be understood as law-preserving. There are no circumstances in which the murder of the CEO of a major corporation by a citizen would be permitted by the state, it is an act which unambiguously violates the law as it exists. However, the explicitly political nature of the killing (evidenced by Mangione’s alleged ‘manifesto’) and the remarkably sympathetic political response from large portions of the public indicate that this action, while not law-preserving, may perhaps possess some potential to be law-positing. Here we can move beyond the figure of the vigilante who seeks to preserve the law (while also positing a new law in the form of the right to vigilantism) and look instead to a figure discussed only briefly by Benjamin: the ‘great criminal’. 

For Benjamin, the great criminal is someone who challenges the state’s monopoly on violence in a very particular way. While the great criminal does not enact law-preserving violence, thus distinguishing them from the vigilante, they do possess a kernel of law-positing violence. For this reason, they elicit significant fear from state authorities who seek to punish them as severely and as publicly as possible. As Derrida writes, what the state fears “is not so much crime or robbery, even on the grand scale of the Mafia or heavy drug traffic, as long as they transgress the law with an eye toward particular benefits. […] The state is afraid of founding violence – that is, violence able to justify, to legitimate, or transform the relations of law, and so to present itself as having a right to right and to law.”^[1] It is precisely because of this threat to the state’s monopoly on violence and its right to posit law that allows the great criminal to capture “the secret admiration of the people, even when his ends were repulsive.”^[2] More than simply violating the law, the great criminal challenges its legitimacy and poses the threat of establishing a wholly new law. 

Mangione, it seems, fits better into the category of great criminal than that of vigilante. Rather than seeking to preserve the law which underpins the present racial capitalist system, his actions challenge that system and elicit widespread sympathy and admiration among those who are subjected to it. The massive manhunt that followed Brian Thompson’s shooting and the intense media backlash to any sympathy expressed towards the motives behind it – including attempts to categorise this event as one which should be considered purely in the realm of ethics rather than politics – indicate a fear among the ruling classes that Mangione’s actions will encourage further violence against representatives of the racial capitalist system. The sympathy expressed with Mangione speaks to a widespread frustration with a legal order which condemns and punishes acts of overt violence against the wealthy and powerful, while leaving the poor and racialised to suffer at the hands of both overt violence (such as the actions of Daniel Penny and the police) and systemic violence in the form of privatised health insurance companies which can arbitrarily deny care to those who need it. Mangione’s (alleged) actions point towards the possibility of refusing the current legal order in favour of another, one which might more fairly enact a logic of justice. 

However, the great criminal is ultimately a figure discussed only in passing in Benjamin’s work, indicating that he saw little revolutionary potential in such agents. Even Mangione’s alleged actions and his supposed ‘manifesto’ themselves point to the limits of acts of great criminality. In this document, Mangione admits that he acted alone; furthermore, his action was singularly focussed on just one person – an important and influential person, but one whom the capitalist system will readily and easily replace. These actions are thus too individualistic to bring about any long-lasting social change. In the final instance, even the most radical and successful great criminal – one who manages to institute a new system of law – remains trapped within a structure of violence; any violent positing of a new legal order must be backed up with law-preserving violence.

Where Benjamin sees potential to break out of this ceaseless structure of violence is in a form of action which refuses the means-end relationship that underpins both law-positing and law-preserving violence. This is what Benjamin refers to as divine violence, which he sees manifest in the form of the revolutionary general strike. Contrary to traditional strikes, which seek specific ends such as reform or improved conditions, the revolutionary general strike is pure means: it makes no demands and as a result severs ties with the state, the law, and the capitalist system, ultimately abolishing them altogether. Mangione’s (alleged) actions possess some element of divine violence insofar as his ‘manifesto’ lacks demands or calls for reform, yet their individualised focus – both in terms of the agent and victim of his violence – fully separate it from the possibility of divine violence in the form of the strike. A more thorough manifestation of this divine violence, one which could bring to an end the violence of the racial capitalist exploitation of life and wellbeing under the privatised healthcare system, is a strike across all parts of this system: a debtors strike on the part of those indebted to private insurance companies, a refusal to pay premiums on the part of those subscribed to them, and a refusal to charge for services on the part of doctors and hospital administrators. In this way, the healthcare system could continue to operate as it has thus far, with the one noticeable difference being that it is freely available to all. Such a strike would enact a messianic world-to-come in Benjamin’s sense: it differs from this world only through the making of a “slight adjustment” which changes everything.^[3]

^[1] Jacques Derrida, Acts of Religion (New York and London: Routledge, 2002): p. 268

^[2] Walter Benjamin, ‘Toward the Critique of Violence’ in Peter Fenves and Julia Ng (ed.s), Toward the Critique of Violence: A Critical Edition(Stanford, CA: Stanford University Press, 2021): p. 42

^[3] Walter Benjamin, ‘Franz Kafka: On the Tenth Anniversary of His Death’ in Illuminations (London: Bodley Head, 2015): p. 230