Walter Benjamin, and Philosophical Theories of Law and Human Violence

Screen Shot 2019-05-23 at 3.25.24 PM

Introduction

This paper engages Walter Benjamin’s (1892-1940) essay On the Critique of Violence (1921) with particular emphasis on Benjamin’s understanding of law and violence, his concept of divine violence, and how his view of violence both contrasts and complements several other views of human violence and aggression. It is argued that Benjamin’s view of law and violence contributes to a holistic view of human and social violence. An analysis on the applicability of Benjamin’s essay to a contemporary context is provided, and it will be argued that although the essay provides readers with a helpful critique of political and legal violence it yet remains unhelpful in its ambiguity, lack of clarity, problematic view of law, its lack of a model of non-violent violence, and is therefore not convertible to a usable political strategy.

Revisiting Benjamin’s View of Law and Violence

The primary motive for Benjamin’s Critique was not merely to explore the concept of violence itself (which he believes had not been explored deeply enough) but also to examine the relationship that existed between it, the law, and justice. Benjamin notices how violence, which he claims is inherent within law, manifests during times of crisis, especially when the ruling state considers itself threatened by the population it governed. Benjamin’s belief is that violence is intrinsically related to moral relations and that something can only be viewed as violent if it takes place within such confines (Benjamin 1996, 236).

Throughout his essay, Benjamin introduces and critiques concepts he deems both important and relevant to the discussion. He explores two legal traditions of law (natural law and positive law) which he proposes violence to be an intrinsic part of, and that if one wishes to engage the issues of violence (and law), he or she needs to examine these systems (Benjamin 1996, 236). He claims that both natural and positive law share a fundamental “dogma” in that they are both underpinned by a relationship of justification between means and ends (Benjamin 1996, 237). According to Benjamin, means-and-ends is the problematic logic that fuels the problem of mythic violence, a concept he later introduces in his essay and contrasts with divine violence. Benjamin examines positive law for it is there (as opposed to natural law) where he can best provide his critique of state violence.

Positive law includes the manmade legal systems created by human beings within democratic, political, and legal structures. These systems create laws which are enforced upon the population living beneath their rule. Benjamin examines the relationship between violence and the law through how the law is both instituted and preserved in the forms of “law-making” and “law-preserving” violence (Benjamin 1996, 248). Law-making violence is the violence required to establish a new law whereas law-preserving violence is the type of violence required to preserve and enforce the law. Benjamin believes that all violence will either be either law-making or law-preserving, and that it is therefore impossible to separate violence from the law. Benjamin introduces the concept of fate, which is the idea that violence is not only woven within law but that it is also inevitable (Benjamin 1921, 248, Kellog 2011, 76). As long as there is positive law there will be violence at some point. He employs the example of a legal contract to demonstrate the interdependence of law-making and law-preserving violence (Benjamin 1996, 244-245). A legal contract is a created violence which can be enforced (by means of violence) if it is thought necessary (for example, if one party broke the contractual agreement). A contract is therefore understood to be an imposition of violence upon others. An example might be a judge in the court of law who decides that some person (perhaps the individual who has committed a crime such as breaking a legal contract) should lose her freedom, property, and perhaps even her life. As such, Benjamin believes that law can be seen as an organized, social practice of violence.

Benjamin introduces perhaps his most important ideas in the form of mythic violence and divine violence (Benjamin 1921, 249). Mythic violence forms the foundation of law-making and law-preserving violence within positive law. Benjamin views mythic violence as problematic and he tries to discover a type of violence that does not employ its means-ends logic and justification. He proposes the idea of divine violence which he describes as opposite to mythic violence in all senses. While mythic violence concerns itself with power in order to preserve and perpetuate law divine violence emphasizes justice. While mythic violence renders subjects under the law guilty divine violence destroys the system which cultivates the guilt. While mythic violence embraces the means-ends logic divine violence tries to go outside of this logic. Ultimately divine violence, unlike mythic violence, is concerned with attempts to abolish coercive law in favour of justice.

Contrasting Benjamin with Other Important Theories of Violence

Benjamin is one of several influential thinkers over the past century or two to have considered the origins and manifestation of violence. Other prominent theorists, notably Sigmund Freud (1856-1939), Karl Marx (1818-1883), and Rene Girard (1923-2015), have proposed theories of violence which can be contrasted with Benjamin’s own. Although these theorists differ in approach and understanding, together they provide a holistic view of human violence as a phenomenon.

Alfred Adler (1870-1937) was the first psychologist to suggest that aggression is an innate, primary instinctual drive (Dennon 2005, 2). Although he did not adequately take into consideration the likes of unconscious and childhood sexuality (which has led to his ideas being criticized), Adler did add valuable insight into the ever growing psychoanalytic understanding of human aggression. Anthony Storr (1920-2001) believes that aggression is accounted for by the role it plays within society, within human competition for food and sex, and ensuring peace and order (Storr 1968, 53). Sigmund Freud is also helpful in this discussion although he revised his understanding of aggression throughout his writings. Freud eventually settles on the idea that aggression has its origins within the death instinct, which, he believes, is how an organism aimed to restore itself to the state of inorganic matter that existed before life arose, and which expresses itself though an organism’s instinct for destruction directed against the external world and other organisms (Dennon 2005, 3). The death instinct is in contrast to the Eros, which is the organism’s other instinct to unify, preserve, and build itself up (Dennen 2005, 4, Freud 1991). For Freud, the Eros and the death instinct oppose one another within the human being’s subconscious, and he also believes that aggression, although finding its origin within the death instinct, may experience a fusion with the Eros when it develops in close relationship to experiences of libidinal gratification (such as objects of love) (Freud 1991). Freud claims that the death instinct is invisible (for it operates internally), and is only observable in instances of aggressive manifestation directed outward (Dennon 2005, 4). This manifestation directed towards external objects is necessary lest an individual overly internalizes it which would lead to his or her self-destruction. However, despite Freud’s reputation as the founder of psychoanalytic theory, few have accepted his idea of the death instinct (Dennon 2005, 4).

Karl Marx, the father of Marxist theory, believes that violence is a product of revolutions within society that would result in the common ruin of conflicting classes (Marx 2013, 58). Because history, in Marx’s view, shows that societies are arranged into various orders in terms of social rank there will always be classes that are subordinate (oppressed) and classes that are superior. Writing at his own time (which he refers to as the “epoch of the bourgeois”), Marx saw that new conditions of oppression were taking form in simplified class antagonisms, and he thus split society into two classes in opposition to each other: the bourgeois and proletariat. The proletarians are the working class of labourers (the “masses” from the lowest “stratum of our present society”) who find their employment in the factories of bourgeoisie capitalists. Marx views the proletarians as slaves of the bourgeoisie who ruthlessly exploit them in order to profit, which is a form of violence itself. Marx is critical of the bourgeois class, and although he acknowledges that through them much wealth has been created he cannot overlook their “naked, shameless, direct, brutal” exploitation of the proletariat. Marx states that violence manifests in these antagonisms, particularly as a result of the increasing concentration of the proletarian “masses.” Proletarian numbers accumulate the further industry develops because the bourgeoisie require them in greater number to operate the machinery and keep their factories productive. The result is formations such as trade unions which act, often violently, against the bourgeoisie. Violence erupts in the form of riots and open revolution through which the proletarians, through destroying factories and equipment, attempt to overthrow the bourgeoisie.

Rene Girard believes that violence is the result of mimetics. Mimetics is the idea that what human beings desire comes from observing other people and what they desire (Girard 2004, 8-9). Girard’s theory notes that conflict occurs through externally mediated and internally mediated desire (Fleming 2002, 60). The former refers to the scenario in which the person being imitated is far removed from the context of the one imitating (different continents or cities, for example), meaning that there is a very small chance that any real conflict will occur between the two. Internal mediation is when the person being imitated is within close proximity to the imitator (perhaps in the same village or neighbourhood), and therefore the likeliness of conflict is more probable. Girard believes that societies and communities needed to learn how to deal with this violence that could potentially lead to social and communal collapse, and explains that through the victimage mechanism societies learn how to maintain order and ultimately their existence (Girard 1977, 22-23, Fleming 2002, 60). Societies and communities maintain order by attaching violence to a scapegoat (“a surrogate victim”) who acts as a sacrificial substitution (Girard 1977, 1, Fleming 2002, 61). Girard holds to a biological deterministic view of violence given that he believes it is a result of an inner human “impulse” that needs to be diverted, and that the sacrificial victim is the one who is taken to satisfy this impulse (Girard 1977, 13). The scapegoat is a person or group of people who are marginalized by society and to whom society attributes its problems and tensions. Dealing with the scapegoat is often violent for he, she, or they are banished or eliminated (Girard 2004, 8-10). Through the scapegoat’s elimination or expulsion a society restores relations, order, and harmony, but only for a temporary period. For a community to avoid committing violence on one another they instead commit violence on a scapegoat.

These views taken together suggest that violence is both a social and biological feature whose end manifests within societies and towards external objects including people. According to our theorists violence and aggression are hardwired into human biology and cognition (Sigmund Freud and the psychoanalysts), and occurs inevitably given its inherent role within law (Walter Benjamin’s mythic violence), arises when human beings feel they are being treated as a means to an end, unfairly, and immorally (Karl Marx’s proletariat class manifestation of anger at the capitalist bourgeoisie), and when human beings are in opposition to one another in terms of obtaining a desired outcome or object (Rene Girard’s mimetic desire). Violence also takes different forms in that members of a society might pin it on individuals or groups (Girard’s victimage mechanism), and in a state’s use of violence against those subject to its laws in order to preserve the law as well as its own domination (Benjamin’s law-preserving violence).

Moreover, how might Benjamin’s work relate to these proposed concepts of aggression and violence? For Benjamin, the violence that Marx observes, namely in the conflict between antagonistic classes, qualifies as mythic violence. Benjamin would challenge Marx given that Marx’s idea of violence does not break free of the means-end logic (although this is not what Marx actually intends to do). Why? Because the class struggle that leads to revolutionary violence does not seek to abolish the bourgeois capitalist system or cause its ultimate destruction. Rather, the proletarians strike hoping that laws within the law system would be edited, revised, or discarded for something better. Whatever the protesters deem to be better still yet operates within the already existing system. Marx appears to acknowledge this for he explains that the proletariat would sometimes be successful but only for a temporary time before they are once again oppressed within the same system and its coercive powers. There is perhaps an element of divine violence in Marx’s idea that the entire capitalist system would one day be destroyed. However, this cannot be divorced from Marx’s belief that socialism is the ideal system (therefore an end) which will too possess law-creating and law-preserving violence. Girard’s idea that violence is somehow inevitable (it will manifest through the human’s “inner impulse”) parallels Benjamin’s idea of fate which he sees within positive law (Benjamin 1996, 248). Fate is what drives positive law, and says that violence is not only inherent within law but that it is also inevitable: it is fated within the system, and will manifest at some point (Kellog 2011, 76). Both Benjamin and Girard hold to a notion of determination: positive law is fated towards violence (Benjamin’s view of a social determinism) and human cognition or mental states are fated toward violence (Girard’s view of a biological determinism). A biological determination can too be pulled from Freud’s idea of the death drive, which underpins the inevitable human instinct to act aggressively toward external objects (which also seems to closely parallel Girard’s notion of sacrificial substitution).

Interpretations of Benjamin’s Concept of Divine Violence

How have key interpreters understood Benjamin’s key concept of divine violence? How might divine violence be the key to understanding a new type of violence? According to philosopher Judith Butler, Benjamin’s essay provides a “critique of legal violence, the kind of violence that the state wields through instating and maintaining the binding status that law exercises on its subjects” (Butler 2006, 201). She writes that the aim of divine (non-violent) violence is to destroy mythic violence, the problematic and unjust violence that Benjamin claimed was within positive law. Butler’s primary contribution to the discussion is in the distinction she draws between coercive violence and non-coercive violence (Butler 2006, 203). Coercive violence denotes the coercive force of law which is characteristic of law-making and law-preserving violence. Butler says that non-coercive violence is divine violence that is “bloodless” and lethal “without spilling blood.” Perhaps most controversially according to some other interpreters, Butler believes that divine violence is properly understood as non-violent violence (Butler 2006, 201-202).

Butler sees two main trajectories within Benjamin’s work with which he was working: the theological and the political (Butler 2006, 204). The theological has to do with divine violence and a commandment, which is neither coercive nor despotic, and that is irreducible to coercive law. Butler says that Benjamin’s messianic element has to do with the destruction of the legal framework, and that it is through the biblical commandment “Thou shalt not kill” that Benjamin provides a critique of state violence. This commandment is evidently of great interest to Butler given Benjamin’s use of it as an example of divine violence (Benjamin 1996, 250). Butler understands the commandment to act as a guideline for action with which each individual must wrestle in solitude (Butler 2006, 204-205). Butler writes that “This is an imperative that does not dictate, but leaves open the modes of its applicability, the possibilities of its interpretation, including the conditions under which it may be refused” (Butler 2006, 205). The commandment is divine violence because it does not enforce itself upon people and does not act as coercively through which it binds subjects through obedience. Butler says that individual responsibility cannot be escaped for one has no choice but to accept the commandment, interpret it in an alternative way, or reject it. Butler also notes Benjamin’s inclusion of Jewish theology through which he opposes violence that strikes at “the soul of the living.” As such, it seems that divine violence acts in favour of the soul of the living, and that the soul of the living is in some way victimized by the law which imposes upon it guilt which, due to it being enforced by law, becomes a kind of soul murder (Butler 2006, 210). It is arguably for Benjamin the soul of the living (such as those who are alive by virtue of a living soul) that underpins the need to oppose coercive law. For Butler then, Benjamin is being used to support a non-violent politics which does not use violence. Benjamin is most helpful because he provides readers with some sort of ethical sense of violence and law.

Slovenian theorist and philosopher Slavoj Zizek is critical of interpreters (such as Simon Critchley, who largely supports Butler’s interpretation) who contend that Benjamin’s concept of divine violence is peaceful or a resort to acting non-violently. According to Zizek, Benjamin’s concept of divine violence is better understood as a manifestation of rage without any strategic instrumental justification, which would differ from the interpretation of Critchley (and Butler) (AS 2017, 04:10-04:20). Zizek argues that divine violence involves violence itself: “Benjamin wasn’t gentle…” for he really meant violence (AS 2017, 06:33-06:33). Zizek refers to cars burning during strikes that occurred in Paris as an example of divine violence (AS 2017, 07:25-07:58). Those strikes were “a manifestation of rage,” did not have any clear goal, and therefore did not invoke the means-ends logic that fuels mythic violence. Zizek says that he still opposes terrorism for such acts can never “give the agent license to kill with some kind of angelic innocence” (Zizek 2008, 202). However, he believes that the protesters should not be criticized because their actions are a desperate manifestation of rage for which we “have no write to simply condemn” (AS 2017, 11:04-11:09). Zizek also uses a similar example of Brazilian protesters from poor parts of a city who went on to loot and burn supermarkets in the wealthy areas (Zizek 2008, 202). Zizek thus understands divine violence to be a manifestation of justified anger on behalf of a large number of people. However, some commentators such as Richard Bernstein are concerned with Zizek’s interpretation for Benjamin introduced the idea of manifestation but only when he was explaining what he meant by mythic violence (Bernstein 2018, 64). But it is clear that Benjamin went to great lengths to show that mythic violence was exactly the opposite of divine violence, especially given that the latter sought to destroy the former. This means that Zizek is “giving it his own idiosyncratic contradictory “meaning(s),” which bear little resemblance to anything that Benjamin actually says” (Bernstein 2018, 65).

It is clear that Butler and Zizek both provide fascinating, albeit conflicting, interpretations of divine violence. It does, however, seem difficult to see Benjamin’s divine violence as being supportive of a non-violent politics which does not use violence. As Zizek rightly observes, Benjamin really meant violence and the examples he uses are themselves evidence of violence, just not of the mythic sort that employs means-end justification and logic.

Does Benjamin Critique Provide a Useful Strategy for the Contemporary Context?

Given the prevalence of violence within human behaviour, law, and society many believe that Benjamin’s essay provides a valuable engagement with the issue (Charles 2015). Benjamin captured a tangible feature of the nature and the function of law, law’s relationship to violence, and how violence occurs within societies when the state is threatened. Violence, as our theorists and their theories have suggested, is a social and human (biological) reality, and is therefore inevitable (or one might say “fated”). An awareness of this side to human nature leads one to appreciate the vast number of debates and discussions Benjamin has inspired through his work, and in particular because purposeful change first and foremost requires understanding. Should one wish to avert violence in the future (whether that is in the sense to avert the mythic violence of the laws of a state or human and social violence in general) then it must begin with an understanding of violence’s nature, how it takes form, what triggers it, what its consequences are, and what it seeks to establish. This is where the value lies within Benjamin’s text.

However, one is hard pressed to covert Benjamin’s critique into a usable political strategy for several reasons. First, one might note, is that interpreters have found Benjamin’s essay a struggle to interpret. He introduces numerous concepts and distinctions, some of which he arbitrarily allocates much more space to than others. Arguably Benjamin’s most important concept, namely that of divine violence, is given minimal attention in the last two pages of his essay (Benjamin 1921, 250-252). The result is, as Butler noted, that the essay is not only “notoriously difficult” but also leaves readers with a number of questions (Butler 2006, 202). One such question left unresolved is whether or not Benjamin opposed certain rules of laws and not others, which is a fairly crucial for readers wishing to come to terms with his central idea of divine violence (Butler 2006, 203). Jacques Derrida (1930-2004) similarly observed the “uneasy, enigmatic, terribly equivocal” characteristics of Benjamin’s essay. The lack of lucidity in terms of clarifying important points and concepts coupled with numerous speculative connections between several ideas prove problematic for students of philosophy as well as professional philosophers themselves, many of whom have read Benjamin’s essay carefully and reasoned to dichotomous interpretations.

A further trouble is that although Benjamin has given readers examples of divine violence he did not know how a society without mythic violence would function, or if it would even be possible. In a society devoid of all mythic violence, what rules and laws are human beings meant to live under? Can human society and civilization even exist without rules of law? Butler too notes this and wonders if Benjamin ultimately achieved his aim given “it is not clear whether he can make good on this promise” (Butler 2006, 201). Butler here specifically refers to whether or not Benjamin had managed to provide a type of non-coercive violence or a violence that is waged against coercion. Benjamin’s essay provides a helpful critique of state violence in law, but it does not provide a working model to live by when one does away with the state and the law. Readers are left in the dark.

One might argue that Benjamin’s view of the law is not necessarily warranted either. Benjamin’s view is rather radical given that he contends that all systems of law are inherently violent and can lead to unjust societies. It is important to realize that Benjamin was writing during a time of revolution in which political and social violence were a part of his experience. It is likely that this contributed to his negative view of the state and the law although how much exactly is open to speculation. Some theorists have reasoned to opposite, if not very different, conclusions to Benjamin. Hannah Arendt (1906-1975), for example, believes that political and governmental systems, such as democracy and democratic law, are distinct from coercion and violence, and can lead to just societies (Arendt 1970, 89). Equally, Arendt contends that Benjamin failed to appreciate the importance of law and the role it plays in binding together communities (Arendt 1970, 89). Derrida shares Arendt’s view and criticizes Benjamin for going too far in denouncing parliamentary democracy (Derrida 2013, 282).

As such, could law perhaps not be a coercive force for good? And could one not argue for what might be termed the necessity of law. Few would deny that law can be (and clearly has been) used in corrupt and malevolent ways (which Benjamin’s essay provides a valuable critique of), but should that be reason enough to destroy the system of law itself? To the contrary many have acknowledged the need for law, and do not believe that destroying the legal system would be at all helpful unless those systems are inherently and coercively immoral and require change. Why? Because law binds together communities, protect its inhabitants, punishes wrongdoers, and prevents descent into anarchy (Hart 1963, 14). It is difficult to imagine a society that does not function under such a system. Does Benjamin’s concept of divine violence therefore introduce a notion of anarchy given that it “directed against the legal framework itself…” (Butler 2006, 209)? For example, in cases of fascism, such as Nazi Germany under Hitler, is it not perhaps necessary to create and impose laws (that are binding upon its subjects) which actively oppose such immoral systems? Perhaps it is not possible to oppose fascism and the moral evils that are found within it (such as extermination camps in Nazi Germany or the gulags in Stalin’s Soviet Union) without the rule of law and the institutions which enforce it. Benjamin’s idea of divine violence would seem to undermine this for it seeks to abolish all forms of law which are binding upon its subjects.

To continue with the idea of fascism a troubling possibility arises from Benjamin’s view of law. One is able to see why some individuals would be attracted to Benjamin’s negative views of law, and perhaps even use them as justification to destroy all law, including democratic law. Benjamin’s interpreters have noted this possibility, for example, Derrida, despite agreeing with much of Benjamin’s essay, finds that its conclusion could possibly justify terrible forms of violence, “What I find… the most redoubtable, perhaps almost unbearable in this text, is the temptation that it would leave open… to think of the holocaust as an uninterpretable manifestation of divine violence” (Derrida 2013, 298). As such, Derrida sees that the essay could lead to anti-parliamentary political sentiments closely aligned with fascism. Butler shares similar concerns. She explains that Benjamin suggests that expiatory violence (a violence inherent to divine violence which brings an end to legal systems) could manifest in a war or divine judgement of the multitude against a criminal, and thus provide a rationale or justification “for a true war outside of all legality, or for the multitude to rise up and attack a criminal designated as such only by themselves?” (Butler 2006, 214-215).

Conclusion

This paper does not pretend that the theories of violence noted herein are exhaustive (they are not), but it does maintain that when Benjamin’s understanding of violence is put alongside several other influential theories of violence, one begins to arrive at a holistic understanding of human violence and aggression, perhaps akin to how a pieces of a puzzle come together to form a final composition. Moreover, for the aforementioned reasons this paper has argued that Walter Benjamin’s Critique does not convert into a usable political strategy. In respect to this, it should be noted that Benjamin provides valuable attention to features of the law, particularly those related to state violence. However, that said, Benjamin leaves his readers with a difficult essay, many unanswered questions, and very little in the way of guidance.

References

Arendt, Hannah. 1970. On Violence. Boston: Houghton Mifflin Harcourt.

AS. 2017. “Slavoj Zizek – Walter Benjamin’s Concept Of Divine Violence.” Uploaded on November 2, 2017. YouTube video. https://www.youtube.com/watch?v=oM6whu21efc

Bernstein, Richard. 2018. Violence: Thinking without Banisters. Hoboken: John Wiley & Sons.

Butler, Judith. 2006. Critique, Coercion, and Sacred Life in Benjamin’s “Critique of Violence.” Political Theologies: Public Religions in a Post-Secular World. Edited by Hent de Vries and Lawrence E. Sullivan. New York: Fordham University Press.

Charles, Matthew. 2015. Stanford Encyclopedia of Philosophy – Walter Benjamin. Accessed April 27: https://plato.stanford.edu/entries/benjamin/

Dennen, J. M. G. Van der. 2005. Theories of Aggression: Psychoanalytic Theories of Aggression. Default Journal.

Derrida, Jacques. 2013. Force of Law: The “Mystical Foundation of Authority.” Acts of Religion. Edited by Gil Anidjar. New York: Routledge.

Freud, Sigmund. Beyond the Pleasure Principle. On Metapsychology. Edited by Albert Dickson. Eastbourne: Gardners Books.

Hart, H. L. A. 1963. Law, Liberty, and Morality. Palo Alto: Stanford University Press.

Kellog, Catherine. 2011. Walter Benjamin and the Ethics of Violence. Law, Culture, and the Humanities. 9(1): 71-90.

Marx, Karl & Engels, Friedrich. 2013. The Communist Manifesto. Edited by Simon and Schuster. New York: Simon and Schuster

Storr, Anthony. 1968. Human Aggression (First Edition). New York: Scribner.

Walter, Benjamin. 1996. Walter Benjamin: Selected Writings: 1913-1926. Edited by Marcus Bollock and Michael Jennings. Massachusetts: Harvard University Press.

Zizek, Slavoj. Language, Violence, and Non-Violence. International Journal of Zizek Studies. 2(3): 1-11

Let me know your thoughts!

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s