Critique of Violence

Chandler J. Lewis Political Theories of Violence 6.10.13 Prompt #1 For this paper, my overarching question is, “Will a society ever exist in which violence and law are not intertwined?” Using the work of Walter Benjamin, Michel Foucault, and Robert Cover, I will attempt to show that a society bound under any form of laws will never be free of violence. Considering the relationship that exists between violence and law, we should try and understand what links law to violence and further look to see how that violence manifests in our everyday existence. An important question to consider for all the authors is whether or not there is ever a justification for the use of violence and if so, what is it? Benjamin’s Critique of Violence provides us with insight as to how we can interpret the relationship between law and violence through the ideas of positive and natural law. He also illustrates the dual function of violence: lawmaking and law preserving. Discipline and Punish, by Foucault, gives us a framework in which we can view violence in the modern form, through discipline. Using surveillance as the means of control, he shows us how discipline rose as a new form of domination, resulting from increased human knowledge about our body and soul. Lastly, Robert Cover’s Violence and the Word takes the common practice of judicial interpretation and shows us the inherent violence that is present in the everyday functioning of our judicial system. Together, I hope to show that the likelihood of society ever being free of violence will never be achieved. Benjamin opens the Critique of Violence by stating a cause is only violent when confronting moral relations, relations with other human beings. He holds that the relationship in any legal system necessarily consists of ends and means: violence is realized in terms of the means but not ends. Central to Benjamin’s critique is the question of whether or not violence, in principle, can ever be a moral means to just ends. To understand this question we must discuss Benjamin’s differentiation between natural law and positive law. Natural law sees violence as a natural datum or standard. Positive law sees violence as a product of history. Natural law is founded the divine, whereas positive law sees law as whatever lawmakers desire. Natural laws see our rights as ones granted by God or nature, and are implicit to our being. Positive law however, see our rights as given to us by a society, others, or a state. Embedded in the principles of natural law is its right to use violent means to achieve just ends. The word principle, as I see it, means principle as a juridical law, representing a set of values, which lead to written norms, that organizes a society around their submission to the power of a higher authority. This law establishes a legal obligation, coercively, and conditions actions that limit the freedom of an individual. Benjamin writes that, “if justice is the criterion of ends, legality is that of means.” The basis upon which the idea of social justice rests is positive law, which seeks to circumvent natural law and construct a false sense of equality by the means of force and control. Positive law challenges the fundamental character of human nature and thus natural law. In this way, positive law and natural law are constantly played against each other as positive law challenges the fundamental character of human nature and thus natural law. Can a state legitimately use violence as a means to attain a desired end? It is necessary to look at the construction of the prevailing legal system in which violence has been authorized as a means of attaining just ends. One can apply an institutional approach to Foucault’s position on law and violence to highlight his belief that the state is entitled to use violence for just ends. This concept is reflected in the very essence of our Constitution, where natural law forms a fundamental basis by keeping the powers of the government in check. The Constitution acknowledges citizens’ natural rights and further allows them the freedom to exercise such rights. As one of the main goals of our own government is protecting citizens’ natural rights, the Constitution is restricted from infringing on citizens natural rights when attempting to attain its own ends. Further, positive law and natural law are opposed to each other as positive law bases itself on the principle of majority rules, whereby the purpose of the government is to accede to the demands of the majority. This leaves the minority at risk of having their rights infringed upon. Deductively, the government becomes the judge of what is right and what is wrong. Natural law can limit the rights of citizens when they have infringed on another’s natural rights. The modern system of due process is applied in evaluating and sanctioning punishment for such violations of rights, as represented through the judicial system. Since our society is based on natural law, inherent in the Constitution, infringement of someone else’s rights is the only time that a citizen can have their own natural rights taken away. One can apply Benjamin’s principles of positive law to illuminate areas where the legitimacy of sanctioned violence is questionable. Positive law demands that violence account for its historical origin, “which under certain conditions is declared legal, sanctioned (Benjamin, 238.)” By this, he means that it is necessary for violence to account for the point when it became a justified means used for just ends. Legal violence is most obvious when there is an intentional acknowledgement to its end, “a hypothetical distinction between kinds of violence must be based on the presence or absence of a general historical acknowledgement of its ends (Benjamin, 238.)” Positive law can be used as a hypothetical basis for an analysis of violence because it distinguishes between kinds of violence independent of instances of application through the separation of sanctioned and unsanctioned force. Benjamin holds that natural law is inadequate to account for a justification of certain types of violence. Benjamin begins to analyze the legal problem of legitimizing specific forms of violence. “It can be formulated as a general maxim of present-day European legislation that all the natural ends of individuals must collide with legal ends if pursued with a greater or lesser degree of violence (Benjamin, 238).” Citizens do not maintain the right to use violence for their own end because they give this right to a higher authority in exchange for protection. It is for this reason that the state must establish, “in all areas where individual ends could be usefully pursued by violence,” a system of legality whereby their ends could be sought through non-violent and sanctioned means. Benjamin provides a counter to this argument by observing that in state’s attempt to hold a monopoly on the use of violence over individuals, “not by the intention of preserving legal ends but, rather, by the intention of preserving the law itself; that violence, when not in the hands of the law, threatens it not by the ends that it may pursue but by its mere existence outside the law (Benjamin, 239).” We can conclude that it is critical for law to sustain its monopoly on violence in order to maintain its existence as “law”, which is its basis for legitimacy. Benjamin poses that violence has dual functions, law-making and law-preserving, “in the sense that lawmaking pursues as its end, with violence as the means, what is to be established as law…at this very moment of law-making, it specifically establishes as law not an end unalloyed by violence but one necessarily and intimately bound to it, under the title of power (Benjamin, 248).” Specifically in terms of constitutional law, we can say that “power” is what is guaranteed by all lawmaking violence. Lawmaking violence, concerning the state, is foundational and takes roots in the establishment of a constitution. Violence legitimizes itself in the origin of this document. Law preserving violence then is violence that is perpetrated by a previously established state and seeks to protect some already existing order of law. The type of violence is evident in the functioning of a legal order on a daily basis. Regardless of their differences, Benjamin holds that the two types of violence, lawmaking and law preserving cannot be separated. It seems here that Benjamin is implying that laws process of legitimacy has no end. Since each successive action of legality, the law attempts to both preserve itself, and also restake itself through identifying its conception. In Discipline and Punish, Foucault provides a structural analysis the modern form of exercising power, namely “discipline”. While I may transition from using the word “violence” to that of “power”, it still must be assumed that the use of power, in the way we have been using it, implies that violent, coercive and freedom-limiting means are being deployed. I have yet to offer a resolution for the use of violence, and thus, we must assume that power and violence are connected, until which time a distinction is made. Paramount to Foucault’s analysis is the questions of how discipline functions within the microphysics of society, a power uniquely linked to violence. Foucault’s definition of power refers to different forms of domination and subordination at work within social relationships, wherever they exist. Through the use of various instruments, the state is able to use acts of regulated violence to control masses of people, and do so by codifying norms into enforceable law resulted in legal use of violence to pursue just ends. The norms on which the laws are constructed resulted from observation of individuals within different social spaces. Up until the middle of the 19th century, the relationship between law and violence primarily rested in the ultimate sovereign authority of a monarchy to supremely enforce their power over their subjects. The horribly violent master-servant relationship, which targeted the body rather than the soul, later disappears. It was replaced by a new form of violence, discipline, resulting from shifts in social norms and humanistic understanding of man. This shift between regimes of punishment and law is characterized by the difference in physical and social spaces that they occupy. Gentler forms of control—inspection, discipline and normalization—have replaced the repressive violence of law and governments that formerly dominated the legal order of the classical period. The shift that resulted from the increased knowledge of the body and soul has lead to new forms of punishment that now define the modern legal and penal systems. This new system is comprised of designated agents to carry out the functions necessary to keep such a system in place. The means by which a government ensures the adherence to these social laws is through the use of institutionalized, legitimized violence manifested in the use of discipline and other forms of punishment in order to regulate individuals’ behavior. “Discipline makes individuals; it is the specific technique of power that regards individual both as objects and as instruments of its exercise (Foucault, 170).” Foucault writes in his section titled “The Correct Means of Training” that “the exercise of discipline presupposes a mechanism that coerces by means of observation; an apparatus in which the techniques that make it possible to see induce effects of power, and in which, conversely make those on whom they are applied clearly visible (Foucault, 171).” Success of this type of power depends on the use of: hierarchical observation, normalizing judgment and examination. The ideology of discipline, of which surveillance is the central mechanism for control, has been implemented in almost every aspect of western society and is evident in modern day institutions such as hospitals, schools and the military. Foucault is careful to point out that hierarchized, continuous and functional surveillance may not have been a unique technological advance of the 18th century, but rather its expansive implementation brought with it important mechanisms of power. “By means of such surveillance, disciplinary power become an integrated system, linked from the inside to the economy and to the aims of the mechanism in which it was practiced (Foucault, 176).” In essence, this modern form of violence manifested in discipline and punishment and all see normalization of individual behavior as the end goal. “Like surveillance and with it normalization, becomes one of the great instruments of power at the end of the classical age (Foucault, 184).” Foucault uses Jeremy Bentham’s Panopticon, as his primary example of the power of surveillance over individuals and the way in which it plays out in the microphysics of modern society. The “Panopticon” is an institutional architectural design constructed around a central watchtower that can see into multiple cells that have two windows, one facing the tower and one facing a light source. “He is seen, but he does not see (Foucault, 200).” It is in this reality that the effect of the Panopticon is most evident as it makes the individual aware of his continual observation that in turn “assures the automatic functioning of power (Foucault, 201).” In this way, Bentham maintains power should be visible and unverifiable. He holds the Panopticon is “an important mechanism of power, for it automatizes and disindividualizes power…Consequently, it does not matter who exercises power” for it “produces homogeneous effects of power (Foucault, 202).” This arrangement allows for a reduction in the number of individuals necessary to exercise power, while simultaneously increasing the numbers of which power can be exercised. The panoptic schema is essentially just another form of state sanctioned violence because its intent is limits the freedoms that one might normally enjoy absent of surveillance. As the world that Foucault observed became more globalized and saw a general increase in humanistic knowledge, the former system of criminal justice began to quickly reform. This resulted in punishment of criminals being considered within the realm of the crimes they committed. The application of discipline would operate “down to the finest grain of the social body (Foucault, 80).” Within an analogical form of punishment, a natural link would be established and would allow punishment to reflect the law of nature rather than mere political power. “The reform of criminal law must be read as a strategy for the rearrangement of the power to punish, according to modalities that render it more regular, more effective and more constant and more detailed in its effects…while diminishing its economic cost…and its political cost (Foucault, 80).” The new judicial theory of penal reform is related to the new “political economy” of the power to punish. The aim of this modern Panopticon is rather simple in that it seeks to “strengthen the social force, increase production, to develop the economy, spread education and raise the level of public morality (Foucault, 208).” Theoretically, Foucault’s Panopticon is a generalized principle of a new “political anatomy” whose means and ends are realized in terms of discipline. In terms of ends and means, discipline “must also master all the forces that are form the very constitution of an organized multiplicity; it must neutralize the effects of counter-power…and which form a resistance to the power that wishes to dominate it; agitations, revolts, spontaneous organizations, coalitions—anything that may establish horizontal conjunctions (Foucault, 219). It is in this function of discipline that discipline’s violence is apparent, because the elimination of counter-power requires the use of force and thus violence. The disciplines, more specifically the “real and corporal” disciplines form the basis of formal, judicial liberties. “The contract may have been regarded as the ideal foundation of law and political power” with Panopticism comprising the application, which is universally accepted, of coercion, and thus of violence. Disciplines “extend the general forms defined by law to the infinitesimal level of individual lives…They seem to constitute the same type of law on a different scale. (Foucault, 222).” Foucault further calls disciplines “infra-law” because they function within general forms set forth by law “to the infinestimal level of individual lives” as well as a means of training that allow individuals to integrate into the general demands of law. The judicial system seeks to define juridical subjects “according to universal norms” whereas the disciplines characterize, classify and specialize, “they distribute along a scale around a norm, hierarchize individuals in relation to one another (Foucault, 223).” Foucault sees discipline as a “counter-law” despite its regular and institutional appearance. Despite societies attempt to control the limits on the use of power, the “universally widespread Panopticism enables it to operate”, however it operates outside of the realm of law. In Robert Cover’s analysis of the relationship between the law and violence, he believes that violence and legal interpretation—interpretive acts of judges—are inseparable. Their relationship is observable even in the “most routine of legal acts (Cover, 1607).” Cover, is most concerned with the law as it relates to legal interpretation. Underlying this interpretation is a system that designates various agents to carry out the abundance of functions necessary to keep the system in place. For Cover, even the most minor sentencing of offenders constitutes an act of violence. “Legal interpretation is either played out on the field of pain and death or it is something less (or more) than law (Cover, 1607.)” In order for law to function in society, one must first acknowledge the presence of a coercive superstructure, like Foucault’s metaphorical “Panopticon”, represented by a state. Individuals must give either tacit or explicit consent to the state to have jurisdiction over their actions. Legal interpretations also “constitute justifications for violence which has already occurred or which is about to occur (Cover, 1601.)” The development of a system of laws has multiple effects. First, the development of laws reflects dominant social norms present in any given society. These laws constitute an outline for correct behavior in relation to other individuals in society and most often reflect the aims of those with the most power. Secondly, these laws give legal authority to agents of the state to enforce the laws and punish those who do not conform. These agents thus share responsibility for whatever act of violence may result from their contribution the legal process such as execution or indefinite incarceration. Since Cover tells us that legal interpretation takes place in the realm of pain and death, we know that acts of legal interpretation are most certainly violent in nature and are used to destroy peoples’ normative reality and put them in a place of complete and helpless domination. Lastly, these laws create legal justifications for the use of institutionalized violence in order to punish those who break laws, and also to deter others from committing the same offenses. Fear is the instrument used to deter people rather than direct force. Viewed in terms of Foucault’s argument, these effects are a result of the widespread implementation of “disciplines” that develop in order to ensure the automatic functioning of power, disciplines that function within the microphysics of society. Essential to Cover’s argument is he analysis of martyrdom and its applicability in understanding the nature of legal interpretation, “because it is so extreme a phenomenon, martyrdom helps us see what is present in lesser degree whenever (legal) interpretation is joined with the practice of violent domination. Interestingly, by using martyrdom as a point of analysis, he implies that the “legality” or “justification” of violence means nothing when it confronts someone who ascribes to a different set of laws than the ones being imposed on an individual or set of individuals. This is because the individual in the face of extreme violence and pain rejects the laws being forced upon him and ascribes himself to a “higher” power, not allowing himself to be killed on the oppressor’s terms. Cover concludes that since martyrdom is an extreme form of resistance to domination, we must be conscious that “the normative world-building which constitutes ‘Law’ is never just a mental or spiritual act. A legal world is built only to the extent that there are commitments that place bodies on the line (Cover, 1605.)” This argument echoes Foucault’s discussion of disciplines well because, as a result of discipline’s widespread assimilation into society, there are physical restraints placed on the body, ones that govern the everyday existence of individuals. Additionally, “the interpretive commitments of officials are realized in the flesh” and that the torture of a martyr as “an extreme and repulsive form of the organized violence of institutions (Cover, 1605.)” Within general, overarching categories of blame or punishment “meaning is created for the event which justifies the judge to herself and to others with respect to her role in the acts of violence (Cover, 1608.)” Cover is careful to point out that one must not rule out the importance of this ideological function of the law, writing that, “the function of ideology is much more significant in justifying an order to those who principally benefit from it and who must defend it than it is in hiding the nature of the order from those who are its victims (Cover, 1608.)” In looking to the ideology of punishment, it is important to assert that such ideology is not solely held by judges, rather it functions within a broader sense and can be understood by prisoners, criminals, revolutionaries as well. Cover proofs this by asking why should one not accept that “interpretation is the master concept of law”. If this is true, punishment, if justified, legitimates any coercion or violence that takes place. Hence, the ideology of punishment, assuming the use of violence, may work to successfully “justify” our practices [means], not only to ourselves, but also those have been or are yet to be punished by the law. Cover concludes the discussion of the ideology of punishment by stating that the relationship between a judge and a criminal, regardless of their agreement, still end up being bound by their relationship of violent domination: the dominator and the dominatee. Specifically, when referring to the violence underlying judicial acts, it can be seen that a judge’s judgments “trigger agentic behavior within just such an institution or social organization (Cover, 1615).” Their judgments further can be interpreted as a violent mechanism, “through which a substantial part of their audience loses its capacity to think and act autonomously (Cover, 1615).” Foucault stresses this point in his analysis of “discipline”, through Panopticism, because it serves to guarantee the automatic function of power in society. Since judges trigger agentic action, it is implied that their judgments will be honored and further acted upon by the various agents responsible to carry them out, i.e. bailiffs, guards, wardens, executioners etc. This is a phenomenon refereed to as “delegation”, whereby an individual gives up his direct ability to act violently on another person and concedes for it to be done by some other agent; the state, the police, the military or legal authorities. The separation of authorization from deed bears further implications. Cover writes “deeds of violence are rarely suffered apart from a setting of domination” and asserts that the setting may be coercive and violent in nature, or it may be a product of history, for “the imposition of violence depends upon the satisfaction of the social preconditions for its effectiveness (Cover, 1616).” A connection here can be drawn to the writing of Walter Benjamin, as seen through positive law, that violence is a product of history which predispositions the expectations of certain actors. When looking at the institution of criminal justice, it is clear that judges act within their authority in order to levy sentences against the convicted. It is also implied that these sentences are violent by nature. It is important to recognize that in this “judicial act is the structure of cooperation that ensures, we hope, the effective domination of the present and prospective victim of state violence—the convicted defendant (Cover, 1618)” Looking at the institutional structure or “system of roles” “gives the judge’s understanding its effect, thereby transforming understanding into law, so it confers meaning on the deeds which effect this transformation, thereby legitimating them as lawful (Cover, 1619).” This state sanctioned actor must also effectively resolve their role in the process, the deed they authorize and their understanding, which are transformed into law “not only where violence (enforcement) is lacking for meaning, but also where meaning is lacking for violence (Cover, 1619).” The act of issuing sentences and the deeds they authorize are united by the understanding that interpretation of law by judges will trigger agentic cooperation, “who in their roles…perform the deeds which judicial words authorize” (Cover, 1620). Emphasis must be added here that while judges may never personally carry out acts of violence themselves, they are very aware of the deed that their interpretations authorize. By allowing violence to be exercised safely and effectively, “responsibility for the violence must be shared; law must operate as a system of cues and signals to many actors who would otherwise be unwilling, incapable, or irresponsible in their violent acts (Cover, 1628).” It seems however, that Cover implies that until individuals can reconcile the problematic relationship between legal interpretation and the use of violent means to achieve its ends, there will forever be a limit to any shared meaning that could be possible. In Critique of Violence, Benjamin neither accepts nor rejects violence, although he does rejects any critique of violence that rests on trying to interpret just ends or just means. The question central to his work is whether or not there can ever be a non-violent resolution in regard to the law. His answer lies in “divine violence” which is diametrically opposed to mythic violence. Mythic violence is the term he uses to describe lawmaking and law-preserving violence because of their circular logic: any law destroying actions lead to the fixing of law which in turn attempts to preserve itself through violence. Divine violence then is a resolution to mythic because it is a pure or non-violent form of violence and is capable of breaking mythic violence’s cycle. Divine violence is capable of this simply because divine violence is not tied to an ends means logic. Regardless, for our purposes he concludes that it is not possible to separate violence from law, seeing that violence is either lawmaking or law preserving. Any non-violent resolution to the law is quite unlikely. Deductively, it is violence itself that must decide what kind of violence is just and to what end. For Foucault, the question central to his analysis is, “How does law operate within the realm of social relations?” Foucault answers this question through his analysis of the transition between the Classical and the Modern eras. Punishment, in the Classical period, was the final display of the law. The law was evident in the punishment. The modern age portrays the law through punishment embedded within the disciplinary regime that uses penal law as its means. For Foucault, it seems that any justifications for law are in no way attached to the way law currently functions. His main concern is not with the law and thus provides only brief insights as to the role law had during the two distinct periods. He does however make important links to the transformations of institutions of power. The Panoptic schema, as described by Foucault, functions down to the infinitesimal level of individuals live and thus no matter where one looks, coercive and inherently violent means are being employed. From what I can gather, it is not law that keeps society together, rather law is the means by which modern forms of power, and also violence, perpetuates itself. In Cover’s analysis of the law, his central question seems to be whether or not legal interpretation by judges ever yields non-violent outcomes. The answer seems to be no. Cover allows us to see the manifestation of violence in society through legal interpretations of judges. In order for law to function properly in society, there must be a general acknowledgement of the coercive superstructure, (in Foucault’s terms is the panoptic schema). In this way, everybody is held to a system that will punish those who challenge it or act outside the norm. Legal interpretation triggers and sanctions the use of violence on individuals: a judge renders her interpretation of a text, which results in the loss of freedoms, to varying extents. Cover stresses that we must be aware of the normative world-constructing power of the law, as it is never just a mental or spiritual construction, rather it is one that also places commitments on the physical body. Considering that legal interpretation takes place “in a field of pain and death”, we must conclude that law can never separate itself from violence. Legal interpretations constitute justifications for violence that has and will occur later. Neither legal interpretation nor the violence it sanctions may be properly understood separate from one another. Benjamin, Foucault and Cover all provide us ways through which we can view the problematic relationship between law and violence. With Benjamin, any pure means of violence seem implausible or even impossible. His critique lacks any practical and achievable way of attaining non-violent means to achieve just ends. Cover’s approach to the relationship between violence and law appears pessimistic at best. He too fails to provide us with any concrete way that society could move that would facilitate non-violent means to achieving just ends. Both Cover and Benjamin simply do not provide an achievable method to ever sever the tie between law and the violence that is inherent in its nature. As for Foucault, his analysis of discipline, as related to violence and law, gives us the sense that there was never a period of time where violence and the law did not go hand and hand. The panoptic schema has penetrated every aspect of human existence and functions throughout society and everyday life. It seems most impossible that any steps back would lead to the severing of violence from the law and therefore we must content ourselves with the ever-expanding reality of constant surveillance. Regardless of which author you look at, violence and law are perpetually interlocked and humanity will never be able to realize an existence free of violence. Laws, whether written or unwritten, must always be backed by the threat of the sword. Works Cited Benjamin, Walter. "Critique of Violence." N.p., n.d. Web. 1 Mar. 2013. <http://www.mara-stream.org/wp-content/uploads/2011/11/Benjamin-Critique-of-Violence-1921.pdf>. Cover, Robert M. "Violence and the Word." HeinOnline, n.d. Web. 10 Mar. 2013.Pages 1601-1629 Foucault, Michel. “Discipline and Punish.” Trans. Alan Sheridan. Paris: Editions Gillimard, 1975. Print. 15 Lewis