In this blog post, we will examine the nature of violence operating in the establishment and preservation of law, focusing on the discussions of Benjamin and Derrida, and explore the fundamental tension between law and violence.
Benjamin sought to reveal that violence intervenes in the birth and constitution of all legitimate power, operating not only through prohibition and punishment but also through the very manner of enacting, imposing, and maintaining law itself. In “For a Critique of Violence,” he took as his starting point the differing positions of natural law theory and legal positivism regarding the righteousness of ends and the legitimacy of means.
According to Benjamin, classical natural law theory seeks the basis for the creation and perpetuation of law in the authority of metaphysical and external entities such as God, nature, or reason. It also views violence used for the legitimate purpose of a duly qualified external entity as unproblematic. Legal positivism, on the other hand, emphasizes whether procedural legitimacy for the use of violence as a means has been secured. Benjamin judged legal positivism to be a more suitable hypothetical foundation for the critique of violence than natural law theory. By deriving the basis for legal validity from a constitution presupposed as a fundamental norm, legal positivism emphasizes the self-foundational nature of the legal system. This provides clues for reading the violence inherent in the law-making process, enabling a critical exploration of the genealogy of violence preservation.
However, Benjamin saw legal positivism as sharing with natural law theory a mistaken premise regarding the relationship between ends and means. Whether viewing justified means as guaranteeing the legitimacy of ends, or viewing legitimate ends as justifying means, both judge the legitimacy of violence on the premise of a mutually supportive relationship between ends and means. He grasped, however, that law’s concern lies not in evaluating specific ends or specific means, but in safeguarding the violence of law itself. He also pointed out that both sides have failed to pay sufficient attention to the problem that law posits only the violence it commits itself as legitimate “coercive force,” dismissing all other forms of the violent as mere “violence.”
Benjamin conceptualized “constitutive violence” and “preservative violence” to explain the inherent violence of law concealed by natural law and legal positivism. He cited anarchic force or war as examples of the former, and the penal system and police system as examples of the latter. These examples suggest that these two concepts cannot be viewed as merely limited concepts corresponding to the legislative and executive powers of the modern state. Legislative violence demonstrates the process by which coercive force, justified for legal purposes, monopolizes the position of violence. Here, violence serves as a means for lawmaking, but it does not retreat once the intended goal is established as law; rather, it transcends its instrumental nature and becomes a force in its own right. Therefore, the relationship between law and violence cannot be reduced to a relationship of ends and means, or one of precedence. Meanwhile, law-preserving violence consists of repetitive, institutionalized efforts to confirm and apply existing law, thereby maintaining its binding force over its subjects. Law is preserved by being affirmed as binding, and this preservation, through reaffirmation, binds the law anew. Furthermore, Benjamin named this cyclical circuit of law-establishment and law-preservation as mythical violence, distinguishing it from divine violence that overthrows law. Divine violence is pure, direct violence that destroys law, and Benjamin argued that it is the active force that explodes the cycle of mythical violence and propels progress toward a new order.
Derrida’s critical reading provided a crucial impetus for “For a Critique of Violence,” which received little attention upon publication but later drew scholars’ interest in elucidating the relationship between law and violence over half a century later. In “The Force of Law,” Derrida analyzed the enunciative force of law that retroactively establishes legitimized violence. He explained that the boundary between legitimate power and illegitimate violence is only drawn through the linguistic act of law. Furthermore, he viewed law-preserving violence as already inherent in law-establishing violence. This is because establishment implies a demand for self-preserving repetition; what is claimed to have been established must be re-established again to preserve itself. Furthermore, he pointed out that the mythical violence that establishes and preserves law and the divine violence that dismantles law are difficult to distinguish clearly. If the latter is understood in the manner Benjamin advocated, there is a risk it could be interpreted as leading to messianism or serving totalitarianism.
