Law and violence

Christoph Menke in dialogue

Christoph Menke

• Publisher: Manchester University Press
• Year: 2018
• Print ISBN:
  9781526105073
• eBook ISBN:
  9781526105103
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Christoph Menke is a third-generation Frankfurt School theorist, and widely acknowledged as one of the most interesting philosophers in Germany today. His lead essay focuses on the fundamental question for legal and political philosophy: the relationship between law and violence. The first part of the essay shows why and in what precise sense the law is irreducibly violent; the second part establishes the possibility of the law becoming self-reflectively aware of its own violence. The volume contains responses by María del Rosario Acosta López, Daniel Loick, Alessandro Ferrara, Ben Morgan, Andreas Fischer-Lescano and Alexander García Düttmann. It concludes with Menke's reply to his critics.

Part I

Lead essay

1

Law and violence

Christoph Menke

(Translated by Gerrit Jackson)

Preface

Any attempt to understand the relation between law and violence must begin with two observations that are at odds with each other, if not even contradictory. The first observation is that law is the opposite of violence; legal forms of decision-making are introduced to disrupt the endless sequence of violence and counterviolence and counter-counterviolence, which is to say, to dispel the compulsion to answer violence with new violence. The second observation is that law is itself violence; legal decisions, too, use violence – external violence, which assails the body, as well as internal violence, which injures the soul, the being of the convict.

The antithesis between these two observations is that between the law’s hostility to violence and its violent quality, between the law’s aspiration to end the “wild violence” of the natural state of “external lawless freedom”¹ – the “expectation that law can transform the weak force of uncoerced, intersubjectively shared convictions into a socially integrating power that is ultimately capable of overcoming every instance of sheer violence in whatever form it disguises itself,”² – and the violence that inevitably returns in how law realizes that aspiration. The problem of law and violence is the problem of how these two observations relate to each other: the legitimation of law as the overcoming of violence, and the critique of law as the use of violence. Both observations are antithetical to each other, but neither is disputable; both are true. Recognizing the truth of both observations is the first prerequisite for an adequate account of the relation between law and violence.

The task would seem simple. That the use of violence is among the actions the law has at its disposal is the claim with which any theory seeking to legitimize the law begins: The “possibility of the conjunction of universal reciprocal coercion with the freedom of everyone” constitutes the concept of law.³ Coercion (which addresses the will as arbitrary discretion) is exercised through the administration or threat of violence that assails the body and the soul. Violence, as the Latin roots of the term indicate, is a form of action that injures the victim’s physical or psychological integrity; to administer violence means to violate. Law, its legitimation avers, operates on the basis of the fact that its judgments are justified, which is to say, normatively valid. If its judgments are justified at all, they are justified in the eyes of anyone, including the individual being judged. In this sense judgements aren’t passed even against the person’s will, which is to say, they are not acts of violence and violation against her or him. Law must be able to use violence only when this justificatory nexus is broken. It uses violence only by way of substitution: instead of the justification on which it rests. So if violence served the traditional law as “a means of presentation and substantiation of expectation,”⁴ which is to say, as a means to reinforce its legitimacy, it has lost that function in modern law, whose rational legitimation is neither in need of nor amenable to corroboration by violent means. Its only function is now to counter the ever-present “risk of dissension”: It serves to secure the factual existence of the consensus whose normative existence is implied by law.⁵ The use of violence in law, the argument for its legitimacy says, constitutes an “unsurpassable limiting case”;⁶ it is at the disposal of law, whose internal organization is “symbolic” or normative, as a “symbiotic mechanism” that operates by action upon “physical-organic existence.” “Physical violence accompanies law like an inescapable shadow,” because only the use or threat of violence enables law to ensure that its normativity, which is designed to gain consent, “function[s]‌ in every case and enjoy[s] confidence as such.”⁷

So the critique of law says nothing new when it insists that there is no law – not even the post-sovereign law that eschews the cruel solemnities of punishment and torture – that has no need of violence;⁸ by insisting on this point, the critique of law merely repeats what its legitimation already knew. But the critique of law consists not in the mere observation that law threatens or uses violence to enforce its judgments, but instead in the insight that the “limiting case” (Luhmann) of its violence is a structural condition of law. The critique concerns the subliminally operative logic that intrinsically connects the symbolic or normative dimension of the justification of legal judgments to the symbiotic mechanism of their violent enforcement. Violence consists in the “elimination of action by action.”⁹ This – the elimination of action, of the ability or freedom to act – is not a mode of operation linked to law only as external to it, let alone as a mere instrument of law. The critique of law shows instead that violence, as the elimination of action, is a necessary consequence of the legitimacy of law: a consequence of its justified way of judging. The critique counters the legal legitimation of violence by asserting that legal legitimation is itself violent.

That turns the problem of the interrelation between the two observations about law, which seemed easy to resolve, into a paradox. Part I of the following reflections will map this paradox of the simultaneous abolition and use of violence by law (“The Fate of Law”). It will proceed by reconstructing the legal thinking of tragedy. The aim of this reconstruction is to understand the paradoxical union of the legitimation of law and its violence; to understand, that is, why the normativity of law is the ground of its fateful violence. Walter Benjamin’s “Critique of Violence” may be read as a summary of this insight of tragedy. The second part attempts to find the gap in the union of law and violence, of normativity and fate, in order to interpret the paradox of this union as opening up the possibility of liberation. To this end, Benjamin’s cryptic idea of a “relief of law” will be explicated as framing the program of a self-reflection of law: to relieve law means neither to apply it indefinitely nor to abolish it once and for all; it means to execute it in reflective fashion, which is to say, with repugnance for its execution.

I. The Fate of Law

The genre of tragedy and the institution of law are genetically and structurally interlinked: Tragedy is the genre of law; law is the justice of tragedy. It is accordingly not only the themes and plots of tragedy that are juridical; so is its genre-specific makeup. Justice is also at issue in the pre-tragic epic. But there, justice reigns as fate, whereas tragedy, by virtue of its form, stages the fate of a new form of justice that is associated with the authority of a judge passing impartial judgment. The suit of the individual, the antagonism and the dialogue between the parties, the responsibility that comes with action, the significance and consequences of the decision, the questions and mysteries of interpretation – these are structural elements of both tragedy and law. The basic elements of tragedy correspond to the basic elements of the new theory and praxis of justice that emerge concurrently: justice as law.

But the connection between tragedy and law applies conversely as well: Not only is tragedy the form in which law is represented, law is also tragedy’s form of justice. Law is the form of justice that tragedy engenders: the form of justice that tragedy, by virtue of its labor of reflection on the epic form of representation, distils from the experience the crisis of pre-legal justice (the justice of sacrifice or retribution). The law to be discussed here is the law of tragedy; not just any sort of order guaranteed by a power that establishes a minimum of reliability of expectations, but the specific form of law engendered by the tragic labor of reflection. Tragedy defines an ambitious concept of law by telling its history; tragedy defines law on the basis of its history. This tragic (or “tragedy-like”) history of law is a double history: its pre-history and its post-history, the history of its genesis and its failure, of its legitimation and its crisis or critique.

That is the object of my brief look at two tragedies in the following pages. My aim will be to extract from these two tragedies a normatively ambitious concept of law that also includes, from the outset, an awareness of its paradox. I will do so in two steps: The first step – taking my cue from the Oresteia – moves from the justice of retribution to that of law and shows in which regard the reign of law, as it breaks with the violence of retribution, at once repeats it in altered form. The second step – “this time with a look towards King Oedipus” – moves from “authoritarian” law, which rules by fear, to the “autonomous” law, which is founded on the free self-condemnation of its subjects. My aim in this reconstruction of the tragic history of law is to understand how violence is perpetuated within the “autonomous” law, the law of enlightenment (from Oedipus¹⁰ to the present): in which sense – in which sense of “critique” and in which sense of “violence” – the autonomous law must become the object of a “critique of violence.”

1. The undecidability of revenge (Agamemnon)

The philosophical discourses on legitimation pit law against the violence of the state of nature, where everyone can do anything with impunity. This state that philosophy envisions is fictitious¹¹ and the same is true for the philosophical legitimation of law as its remedy. Tragedy, on the other hand, presents the violence from which law breaks as arising not from natural drives or sheer arbitrariness but, on the contrary, from an order of iron necessity: Law, as tragedy’s realism indicates, results from the objection to the violence of retribution. Retribution, however, is a form of the implementation of justice. The violence that law overcomes is not the violence that, according to the philosophical fiction, constitutes the state of nature, but the violence of a first, an earlier order of justice: the violence of a normative order, normative violence. The katastrophé – an “overturning” by force, which, in the experience of the Erinyes, the goddesses of retribution, is what the instauration of “new laws” amounts to¹² – is not the unprecedented genesis of normativity against nature but a late transformation in the order of justice. According to the insight of tragedy, law arises from – and against – the experience of violence implicit in justice as retribution. Law seeks to be a normative order of justice after – beyond – the violence of retributive justice.

Retribution is justice for it strikes the one who deserves it. Retribution obeys the law of equality, in that it is the payment of like for like: the wife murders her husband for his sacrifice of their daughter; the son, in return, murders his mother and is then haunted by the goddesses of revenge because there is no longer a member of the family to pursue him. Retribution is just because it is justified. Retribution is not a first, groundless, deed; it is the second deed. Retribution is the answer to an offense – an answer that must ensue (whence it is considered to be divinely sent) because or when the offense was a boundless transgression against the just order.

The gods are not blind to men with blood upon their hands. In the end the black Spirits of Vengeance bring to obscurity that one who has prospered in unrighteousness and wear down his fortunes by reverse.¹³

Against the excess of the offense – of fortune enjoyed “in unrighteousness” – retribution restores the balance of things, “wearing down his fortunes” and reversing them into misfortune. Retribution brings balance by turning on one who has committed a crime and committing the same crime against them in turn. The justice of retribution consists in doing the same.

Yet it is precisely in the equality of retribution, which justifies it, that its violence lies. The retributive deed answers the deed it avenges by repeating it; the retributive deed is like the deed it avenges. By repeating the deed it avenges, the retributive deed is at once, in one and the same regard, justified and indeed necessary and inevitable¹⁴ – and violent. As a repetition of the offense to be avenged, the retributive deed itself is in turn an offense calling for revenge. The retribution a god –“Apollo perhaps or Pan, or Zeus” – has sent to the “transgressors” can only be exacted in a way that exceeds the bounds of justice; “an abomination,” it arouses the “wrath” of another goddess – in this instance, of Artemis (Agamemnon, 55–59, 130, 135–36). So the avenging deed in turn demands an answer that does to the avenger what she or he has done. As retribution executes the law of like for like, it continues in perpetuity. Every avenging deed, however justified it is as an answer to a previous violation, is just like the violation it answers. The justification of retribution and its violence are indissolubly linked: Retribution is measure for measure and excess that then requires another retributive deed to restore the balance of measures. The violence of retribution consists in its necessary perpetuation: in the “frenzy of mutual mur...

Table of contents

• Cover
• Half Title
• Series Information
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Series editor’s foreword
• Part I Lead essay
• Part II Responses
• Part III Reply
• Index