In Zur Kritik der Gewalt (On the Critique of Violence) Walter Benjamin argues that the intimate relationship of violence and law is twofold. Firstly, violence is the means by which law is instituted and preserved. Secondly, domination (violence under the name of power (Macht)) is the end of the law: “Law-making is power-making, assumption of power, and to that extent an immediate manifestation of violence” (p. 248). Benjamin distinguishes between lawmaking violence (rechtsetzend Gewalt) and law-preserving violence (rechtserhaltende Gewalt) on basis of whether the end towards which violence is used as a means is historically acknowledged, i.e., “sanctioned” or “unsanctioned” violence (named respectively “legal ends” and “natural ends”). If violence as a means is directed towards natural ends—as in the case of interstate war where one or more states use violence to ignore historically acknowledged laws such as borders—the violence will be lawmaking. This violence strives towards a “peace ceremony” that will constitute a new historically acknowledged law; new historically acknowledged borders.
The establishment of borders after a war is a clear example of the institutionalisation of a relation of domination inherent in all lawmaking violence. In guise of equality before the law, the peace ceremony is a manifestation of violence in the name of power; “in a demonically ambiguous way,” Benjamin writes, the rights are “‘equal’ rights: for both parties to the treaty, it is the same line that may not be crossed” (p. 249). This demonically ambiguous equality of the law, Benjamin writes, is analogous to that which Anatole France satirically expressed when he said: “Rich and poor are equally forbidden to spend the night under the bridges” (Ibid.). In contrast hereto, if violence as a means directed towards legal ends—exemplified by compulsory general conscription where the state forces the citizens to risk their lives to protect the state—the violence will be law-preserving. The distinction between lawmaking violence and law-preserving violence is however deconstructed in the body of the police and in capital punishment, whereby the “rotten” core of the law is revealed, namely, that law is a manifestation of violent domination for its own sake. In both capital punishment and police violence the distinction between lawmaking and law-preserving violence is suspended. Capital punishment is not merely a punishment for a crime but the establishment of a new law; police violence, though law-preserving can for “security reasons” intervene where no legal situation exists whereby the police institute new laws through decrees. In capital punishment and police violence alike, the state reaffirms itself: law is an immediate manifestation of violence or force and the end of the law is the law itself.
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