critique of law

In the text Critique of Violence, Benjamin posits that violence is at the heart of all law. Violence which is translated from the German term gewalt is also suitably defined as power, force, authority and control. Simply put, this power is what legitimises law. The paradox of the law is that the violence which precisely establishes it is that which it engenders to control and suppress. In this sense the law recognises the inherent power of violence to establish law and thus fears violence in undermining its authority. Benjamin distinguishes two separate forms of violence that can be judged on the basis of their use-value: law-making violence and law-preserving violence. The former is that which the law fears will destroy it and the latter is which Benjamin urges poses a threat to both the law and individuals alike. Law-preserving violence is the law’s attempt at maintaining a ‘monopoly of violence’ in order to safeguard its position of authority. Thus this violence threatens the law when it is exercised in the hands of individuals precisely because it is not sanctioned by the law itself. More succinctly, the law fears violence that attempts to destroy it and violence which falls outside of its means of control. Secondly, Benjamin identifies the fatalistic threat of law-preserving violence for subjects. Here he declares that this violence does not act as a deterrent to certain forms of behaviour because ‘a deterrent in the exact sense would require a certainty that contradicts the nature of the threat and is not attained by any law, since there is always hope of eluding the arm’ instead law-preserving violence is akin to fate that looms overhead (1921: 242). The repeated reference to the fatalistic attribution of law in Benjamin’s critique introduces a transcendental element inherent in the violence of law. Here he inscribes the notion of mythic violence that is lawmaking and bloody whereby power is at the foundation of it. Conversely, divine violence is law destroying and bloodless with justice pursued as its ends. Mythic lawmaking is akin to constitutional law that establishes itself after periods of war and destruction in an attempt to create “peace” through violent law. And it is thus power which is guaranteed through mythic violence that creates laws for “peace”. Divine violence, on the other hand, destroys this mythic law and opposes it. The power of the divine is pure and exists outside of the law. It employs violence as a means for justice that is only designated by God. In this regard divine violence exceeds the mortal world by creating a new order whereby true justice can be redeemed.

Derrida’s critique similarly converges on the authoritative nature of the law and he abstracts his analysis from a citation by Montaigne that states, ‘laws keep up their good standing, not because they are just, but because they are laws: that is the mystical foundation of authority’ (1990: 12). This self-referential quality of law, in essence, reveals that at the heart of law there is no legitimate authority. Law however, does not concede to this proposition and instead proclaims itself as the foreseer of justice. Justice thus becomes the touchstone for law’s monopoly of power and violence and this is precisely where Derrida begins his critique on law by deconstructing the notion of justice. For Derrida, enforceability is that which law relies upon to justify itself. Without force or enforcement the law is undermined. It is through this force that the law is able to justify itself, or as he simply puts it, the law ‘is justified in applying itself’ (1990: 5). Hence power is not a priori, but emerges through the force and the violence that reinforces its strength. Essentially for Derrida, this justification is invalid as he posits that justice can never be realised. Thus, law and justice are distinct facets. Law is not obeyed because it is just; rather law is obeyed merely because it is a law. Law’s claim to justice quite simply reduces it to a performative action, desire or force; in which case it becomes a case of interpretation that removes any sense of truth or validation. Derrida distinguishes between justice, which is infinite and incalculable, and justice as law, which refers to right and legitimacy. Justice can never be obtained because it is precisely that which is incalculable and undecidable and thus any decision made on behalf of justice is solely justice as law; a ruling made on the basis of what is legitimate according to the law or within the parameters of a set of rules. Thus this leaves justice as ‘yet to come’ and opens up a space for the transformation of law and politics in their permanent attempts to achieve it (Derrida 1990).

Both Derrida and Benjamin acknowledge the fundamental force, violence and coercion inherent in law; and in this respect is what grants law the power and authority over subjects, even though it is essentially self-referential. Similarly, both theorists unite in their conceptualisations of ‘justice, or divine violence,’ which cannot be obtained, but which ‘remains a possibility that is the ground for thinking’ (Andrade 2004: 4). For Derrida justice is what is to come and for Benjamin justice is that which attaches itself to divine violence and which cannot be fulfilled in the earthly sense. Derrida, however makes no distinction between law-preserving violence and law-making violence and rather posits that in fact they are one and the same. In this respect, he views that the violence perpetrated by law always fulfils both functions of preservation and foundation. Thus the law, he continues, and its self-legitimising doctrine must be suspended in order to employ its violence and execute its function. And as a result of this continuous suspension of the law to reinforce itself, the law in and of itself assumes a performative role. As a result, we become subjects of a ‘law not yet determined’ and thus ‘the law is transcendent and theological, and so always to come, always promised, because it is imminent, finite and so already past’ (Derrida 1990: 36). In this light, the law retains power over its subjects even though it is formless and exists above us solely in a permanent state of imminence. Therefore it is precisely this ‘mystical foundation of authority’ which the law encompasses that positions it as a thematic issue in cultural theory.

Andrade, M.M., 2004. Deferring Judgment: Reading Derrida’s Reading against the Grain. Studies in the Humanities, 31(1),
Indiana University of Pennsylvania, pp.25-35.
Benjamin, W., 1921. Critique of Violence. In: M. Bullock & M. W. Jennings, eds. 1996. Selected Writings: Volume 1 1913-1926. Boston, MA: The Belknap Press of Harvard University Press, pp. 236-52.
Derrida, J., 1990. The Force of the Law: ‘The Mystical Foundation of Authority’. 11 Cardozo Law Review 919. pp. 3-67.