Contemporary world shakes the cruelty and violence. We announce a protest to the acts of violence. But our indignation this visible violence that commits a people, not aimed to invisible violence that commits a system, a state, a government or social order. This violence often sanctioned by the law. So the important problem is not only violence beyond law, but rather the violence in law.
For the first time a question on contamination between law and violence poses German thinker Walter Benjamin. His essay «Critique of Violence» (Zur Kritik der Gewalt) [2] written in 1921 – long years before the horror of fascism, totalitarism and death camp – fascinates by its depth and insight. Showing violence as the main mechanism of the legal system, Benjamin finds a «blind spots» of legitimate authorities.
Today Benjamin’s Zur Kritik der Gewalt attracts special attentions and becomes the subject of numerous disputes. An interesting interpretation of this text is present in the Giorgio Agamben’s «The State of Exception» [1], Judith Butler’s «Critique, Coercion and Sacred Life in Benjamin’s «Critique of Violence»» [3], Jacques Derrida’s «Force of Law: The Mystical Foundation of Authority» [4], Slavoj Zizek’s «Violence» [5] and other.
According to Benjamin, any law relies on violence. The violence is internal, but not external to the law. Violence is a principle that constitutes of law, and it is also a principle that supports the fulfillment of the law. Benjamin distinguishes between «lawmaking violence» (rechtsetzende Gewalt) and «law-preserving violence» (rechtserhaltende Gewalt).
«Law-making violence» serves to found a new social or political order. Examples of law-making violence includes war between states, strake and revolution. «Law- preserving violence» serves to maintenance or stabilization of existing order. Such violence realized by executive power of state (police or army).
Benjamin argues that violence is inherent to law. He initiates strong criticism of legal violence. This criticism is very intricate. It is connected with number difficulties, which show that problem of violence is undecidable in legal field. Such problem can be qualified as aporia.
As you know, the violence is a means to realization ends. Hence the criticism of violence contains two aspects. The criticism of ends has a form: if the end is fair, then violence is justified, and vice versa, if the end is not fair, then violence is not justified. The criticism of means has a form: if mean is legal, then violence is legitimated, and vice versa, if mean is not legal, then violence is not legitimated.
Thus, traditional criticism insists «if justice is a criterion of ends, legality is that of means» [2, 119]. But for Benjamin this criterion is not absolute. In some cases, this criterion allows violence and in other cases it condemns violence. Such criterion gives a basis for criticism to particular cases of violence, but it not gives a ground for criticism of violence in general.
Suppose, we believe that violence is justified in the case of noble end or in the case of legal mean. But this justification often leads to the vicious cycle of violence in history. For example, it is quite obviously when occurs a strike, a revolution or a political reversal.
Take for example a strike.
Is a strike act of violence? For the workers, a strike «as an omission of actions, as nonactions (die Unterlassung von Handlungen) is not a violence» [2, p. 139]. For the state, a strike is a violence that destabilizes society and undermines of existing order. The state undertakes the fulfillment of the law and arrests of strikers. Is a just end of this violence? For the workers, it is true, and «labor will always appeal to its right to strike» [2, p. 239]. For the state, it is not true, and «the state will call this appeal an abuse» [2, p. 239]. Is a strike as a mean legitimate? For the workers, «strike can be nonviolent, pure means» [2, p. 239], but for the state, it is not so.
The view of labor is opposed to that of the state. The antithesis between two positions shows a legal contradiction: the state recognizes a fair end of worker, but the state denies a legitimacy of he means. The worker argues that government action is unjust, but he obeys to the state because there is a legitimacy of government sanctions.
Yes, in theory a pure mean is possible, but in practice it is not possible. Similar applies to pure end. Therefore, argues Benjamin, a genuine critique of violence must break with the idea of objective justification of means or ends.
Many people believe that legal contract guarantees a nonviolent resolution of conflict [see: 2, p. 244]. It is not true. «Any legal contract between two peaceful parties also leads finally to possible violence. The legal contract confers each party the right on resort to violence if one of them not respects a rule of the contract» [2, p. 243]. The contract never dissolves the problem of violence. «Although the contract denies an open violence, we obviously, that an effort toward to compromise is motivated not internally, but from outside, and has a compulsive character» [2, p. 244].
Thus, violence is act that accompanies the establishment and maintenance all law. Is it possible any social transformation without violence? His answer to this question is ambivalent: at the level of the law, the public sphere or objective world is not possible; at the level of the person, the private sphere or individual world is possible. Nonviolent dissolution of the conflict occurs in personal communication on the basis of a mutual trust and understanding [see: 2, p. 245].
A trust, a mutual confidence and understanding are amenable to formalization. These moments are beyond legitimization, and so, can’t obey to the law. For this reason, a trust and understanding are alternative to the practice that contaminates the law and violence.
REFERENCES
1. Agamben G. The State of Exception. – Chicago: University of Chicago Press, 2005. – 104 р. 2. Benjamin W. Critique of Violence // Benjamin W. Selected Writings. / Eds. by M. Bullock & M. Jennings. – Vol. 1. – Cambridge, MA & London, England: The Belknap Press of Harvard University, 1996. – P. 236-252. 3. Butler J. Critique, Coercion and Sacred Life in Benjamin’s «Critique of Violence» // In: «Political Theologies. Public Religions in a Post-Secular Worlds». / Eds. H. de Vries & L. Sullivan. – Bronx, NY: Fordham University Press, 2006. – P. 201-219. 4. Derrida J. Force of Law: The Mystical Foundation of Authority // Cardozo Law Review. – 1990. – № 11. – P. 919-1045. 5. Zizek S. Violence. – London: Profile Books, 2008. – 224 p.