“Critique of Violence” and Deconstruction

[The following is exerpted from a longer paper I wrote on Force of Law. The part on "Declarations of Independence" in particular has been quite brutally cut, hopefully not beyond comprehensibility. For those who don't know, my name is Adam Kotsko, and I normally blog at The Weblog.]

Introducing his reading of “Critique of Violence” in Force of Law: The Mystical Foundation of Authority, Derrida goes to great lengths to distance himself from any sense that Benjamin’s text is some kind of unique key: “One will not dare say that this text is exemplary. We are in a realm where, in the end, there are only singular examples. Nothing is absolutely exemplary. I will not attempt to justify absolutely the choice of this text. But it is not, for all that, the worst example of what could be exemplary in a relatively determined context such as ours” (263). What is the context here? First of all, of course, the context is an academic conference on Deconstruction and the Possibility of Justice, where “Critique of Violence” presents itself as a particularly well-suited “exercise in deconstructive reading” (264), for reasons of both structure and content. Already, though, the “complete” text in Acts of Religion contains materials adapted for a second conference on the Final Solution, materials in which, according to Agamben, Derrida “guards against [Benjamin’s concept of divine violence], approximating it—with a peculiar misunderstanding—to the Nazi ‘Final Solution’” (64). Finally, Derrida explicitly widens the context to include the whole political situation of his time: “In the Western Democracies of 1989, with work and a certain number of precautions, lessons can still be drawn from it” (“Force,” 264). And although we can’t know for sure that he knew it at the time—any more than we can know for sure that Benjamin knew the Shoah was coming—Derrida is writing just as “the European model of bourgeois, liberal, parliamentary democracy” (263) is about to experience what will seem to have been its greatest triumph, that is, the fall of Soviet communism and the end of the Cold War. Once again, the internal contradictions of Actually Existing Democracy, its self-deconstructive properties, so apparent to Benjamin and others in the wake of the Great War, become all too visible.

Before directly addressing the self-deconstructing character of the system that Benjamin critiques, however, Derrida must lay out the oppositions that structure Benjamin’s own discourse. In a straightforward fashion, suitable to the didactic purpose of this “example of deconstruction,” Derrida enumerates the pairs on which Benjamin’s argument hangs: founding violence/preserving violence, mythic violence/divine justice (a stand-in for Greek/Jewish), and power/justice. Benjamin’s text falls victim to the same temptations consistently uncovered by deconstruction: one side of each opposition is privileged, such that the pair can be reduced to bad/good, while the operation of the text itself demonstrates the impossibility of a qualitative difference between the two terms, the necessary coimplication of each member of the pair. At the same time, Benjamin’s text itself is in part a work of deconstruction, demonstrating the mutual coimplication of the traditions of positive law and natural law: “Notwithstanding this antithesis [between positive law and natural law], however, both schools meet in their basic dogma: just ends can be attained by justified means, justified means used for just ends. Natural law attempts, by the justness of ends, to “justify” the means, positive law to “guarantee” the justness of the ends through the justification of the means. This antinomy would prove insoluble if the common dogmatic assumption were false, if justified means on the one hand and just ends on the other were in irreconcilable conflict” (Benjamin 278).

Benjamin’s critique of violence is not simply the same as that of the pacifists, who merely represent an extreme form of the tradition of positive law as laid out by Benjamin, but rather an attempt to find the grounds to begin the judgment of violence. As Derrida says, the word “critique does not simply mean negative evaluation... but judgment, evaluation, examination that provides itself with the means to judge violence” (265). Benjamin’s assessment of the current philosophies of law leads one inexorably to the conclusion that, before Benjamin, no critique of violence in itself had yet occurred. Both positive law and natural law place violence in the sphere of self-evident brute facts, but for Benjamin, as for Derrida, this is simple obfuscation: “There is no natural or physical violence. One can speak figuratively of violence with regard to an earthquake or even to a physical ailment. But one knows that these are not cases of a Gewalt able to give rise to a judgment, before some instrument of justice. The concept of violence belongs to the symbolic order of law, politics and morals—of all forms of authority and of authorization, of claim to authority, at least. And it is only to this extent that it can give rise to a critique” (Derrida, “Force” 265). In other words, “there is nothing outside the text.”

  So far, Benjamin’s argument is quite deconstructive in character. Although “he seems to dismiss both cases [positive and natural law] symmetrically,” he uses the aspects he retains from each in order to construct something new: a critique of violence and law based in “a philosophy of history” (266). Indeed, his critique of violence shows the inadequacy of the “dogmatic presupposition” of a clear distinction between means and ends. Law is what is enforced by those who have a monopoly on violence; violence is only legitimately exercised by those who create the law: “[T]he law’s interest in a monopoly of violence vis-à-vis individuals is not explained by the intention of preserving legal ends but, rather, by that of preserving the law itself; ... 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 281). The fascination of the great criminal or of “a lawyer like Jacques Vergès who defends the most unsustainable causes by ... the radical contestation of the given order of the law” lies not in their actions as such, but rather in their “lay[ing] bare the violence of the juridical order itself” (Derrida 267). By gesturing toward an outside-of-the-law, they highlight the arbitrary and self-positing nature of the given order, the fact that things could be otherwise. Beyond any specific abuse perpetrated in the name of the law, the law is in itself violent by “decreeing to be violent, this time in the sense of outlaw [hors-la-loi], anything that does not recognize it” (267). Thus the figure of the great criminal would appear to represent a kind of “call for justice,” if not necessarily a “just call for justice.”

For Benjamin, this laying bare of the violence of law is evident “above all in the class struggle, in the form of the workers’ guaranteed right to strike” (281). The very existence of the right to strike represents a self-deconstruction of the European state-form, based on the state’s monopoly of violence. While the state can rationalize the right to strike as a right to take non-violent non-action, “the right to strike constitutes in the view of labor, which is opposed to that of the state, the right to use force in attaining certain ends” (282). In most cases the strikers want to institute new laws, new contracts, in essence a new state: “The strike shows... that it is able to modify legal conditions, however offended the sense of justice may find itself thereby” (282-83). The state, by definition, cannot give anyone the right to found a new state; it can only give that right to itself. By granting the right to strike, the state always potentially undoes itself, and so Derrida says of the general strike, of “carrying the right to strike to its limit”: “Such a situation is in fact the only one that allows us to conceive the homogeneity of law and violence, violence as the exercise of law and law as the exercise of violence. Violence is not exterior to the order of law. It threatens law from within law” (268). Once again, Benjamin is following a characteristically deconstructive line of argument, seeking a location within the given circumstances where justice-as-critique-of-violence can take place.

The contingent occasion for recognizing the deconstructibility of law does not mean that that deconstructibility itself is contingent, an unfortunate circumstance that can be remedied through certain changes in the law. No, recourse to “founding violence,” the only kind of violence of which the state is afraid, is always, in principle, accessible to anyone—revolution, “on the left or on the right” (Derrida, “Force” 269), is always possible, and always terrifying: “These moments [of revolution], supposing we can isolate them, are terrifying moments because of the sufferings, the crimes, the tortures that rarely fail to accompany them, no doubt, but just as much because they are in themselves, and in their very violence, uninterpretable or undecipherable. This is what I am calling “mystical.” As Benjamin presents it, this violence is certainly legible, even intelligible since it is not alien to law... But it is, in law, what suspends law” (269). Suspends: in the sense of momentarily setting law aside as well as in the sense of holding law in place over the abyss of its mystical foundation. The foundation of law never appears as such, and so law is always founded on a promise, “because it is immanent, finite, and thus already past” (270). The revolution is only a particular example of what is always the case with law as a performative act: its illocutionary force is never guaranteed. The established order of law is a successful revolution that never stops being a revolution. It always “produce[s] after the fact [après coup] what it was destined in advance to produce, namely, proper interpretive models to read in return, to give sense, necessity, and above all legitimacy to the violence that has produced, among others, the interpretative model in question, that is, the discourse of self-legitimation” (270). Further, one could cite “cases in which it is not known for generations if the performative of the violent founding of a state is successful (‘felicitous’) or not” (271).

Derrida’s reading of the United States Declaration of Independence analyses one of the best examples in this field of singular examples. “Declarations of Independence,” like “Force of Law,” draws on Derrida’s themes of the performative and of the signature, themes that go back at least to “Signature Event Context,” Derrida’s reading of Austin’s How To Do Things With Words. Largely following Austin’s examples, Derrida’s analysis of irregular performatives is limited to such mundane and “harmless” examples as marriage vows making up part of a theatrical performance, and his analysis of faulty signatures consists mainly in pointing out the possibility of forgery. Thus, though it seems almost annoyingly disingenuous for Derrida to say in “Declarations of Independence” that “nothing had prepared [him] for” an analysis of the US Declaration of Independence and the Declaration of the Rights of Man—especially given that he almost immediately brings up his perennial preoccupation of performative language—in point of fact he is correct. The Declaration of Independence is the most non-ordinary performative imaginable, and as he demonstrates, the signature to be forged is ultimately the signature of God. If a normal performative must still be legible outside its determined context, what about a performative for which there is by definition no determined context?

In the Declaration of Independence, the political act in question maintains the air of legality through the use of a signature, but as Derrida asks: “Who is the actual signer of such acts?” (48). An American can answer immediately: John Hancock, et al. But who gave them the right to sign such a document, to do such a thing? Derrida notes that Jefferson, the person who “drafted” the Declaration “writes but he does not sign. Jefferson represents the representatives who have delegated to him the task of drawing up what they knew they wanted to say” (48). At the same time, the representatives are themselves, precisely, representatives. The real signer is “the people, the ‘good’ people” of the United States of America. But again: who gives the people the right to sign a declaration of their freedom? Does not the very fact that they are able to make a declaration indicate that they are free already? Such questions do not have unequivocal answers; their unanswerability is part of the structure of a performative event that seeks not simply to reconfigure some particular aspect of a context (e.g., to make a couple married where they previously were not), but to produce a new context. The “fabulous retroactivity” of the signer giving himself the right to sign (50)—an event that never takes place as such and is simply “made up”—is, finally, the “mystical foundation of authority.” Founding signatures are made, finally, “in the name of the laws of nature and in the name of God” (51). Even this most thoroughly modern revolution, the very bodying forth of a certain tradition of Enlightenment, cannot escape the necessary structure of a mythology that would link “the to be and the ought to be” (51). Knowing—how could they not have known?—the confusion it would generate, and continues to generate, among sincere believers, Jefferson and the representatives whom he represented agree to appeal to “the laws of nature and nature’s God,” because such a “ceremonial deism” is structurally necessary: “One can understand the Declaration as a vibrant act of faith, as a hypocrisy indispensable to a political-military-economic, etc., “coup de force,” or more simply, more economically, as the analytic and consequential deployment of a tautology: for this Declaration to have a meaning and an effect, there must be a last instance. God is the name—the best one—for this last instance and this ultimate signature” (52). The legal order founded in the Declaration of Independence, signed, finally, by God himself, is basically the same order that Benjamin analyzes in “Critique of Violence”—parliamentary democracy, in which the people is sovereign, in which the people is ruled by laws, not by men.

In his often puzzling analysis of mythological and divine violence, Benjamin contends that parliamentary democracy is “fundamentally identical” with “the mythical manifestation of immediate violence”: mythical violence follows from the self-enforcement of the laws of fate, and Benjamin finds in “the modern principle that ignorance of a law is not protection against punishment,” among other things, evidence that modern Europe has not yet escaped the ancient Greek structure of law (296). Against this, he posits a divine violence that stands in radical judgment of all mythological violence. Divine violence does not found or enforce a new order: it is purely destructive, annihilating, expiating, bloodless. In a parallel to Derrida’s law/justice opposition, Benjamin declares that “only mythical violence, not divine, will be recognizable as such with certainty, unless it be in incomparable effects, because the expiatory power of violence is not visible to men” (300). Yet whereas for Derrida law and justice are heterogeneous and indissociable, for Benjamin they are purely and simply indissociable—myth “bastardized” the forms of divine violence, but mythological violence does not provide a necessary means for the occurrence of divine violence. Rather, “all mythical, lawmaking violence, which we may call executive, is pernicious. Pernicious, too, is the law-preserving, administrative violence that serves it” (300). For that reason, “the destruction of [all legal violence] thus becomes obligatory” (296-97). The means of that destruction in Benjamin’s concrete European situation is, implicitly, the proletarian general strike, which would de-institute the state-form itself and replace it with a completely non-violent field of social interaction that is already visible in private conversation and diplomatic relations (292-93).

Works Cited

Benjamin, Walter. “Critique of Violence.” Trans. Edmund Jephcott. Reflections. Ed. Peter Demetz. New York: Schocken, 1978. 277-300.

Derrida, Jacques. “Declarations of Independence.” Negotiations: Interventions and Interviews 1971-2001. Ed. and trans. Elizabeth Rottenberg. Stanford, CA: Stanford UP, 2002. 46-55.

——. “Force of Law: The Mystical Foundation of Authority.” Trans. Mary Quaintance. Acts of Religion. Ed. Gil Anidjar. New York: Routledge, 2002. 228-298.

——. “Signature Event Context.” Margins of Philosophy. Trans. Alan Bass. Chicago: U of Chicago P, 1982.

Comments

[Marc Lombardo]

A nice reading Adam. At the conclusion are you suggesting that the general strike can be seen as the desired empirical manifestation of divine violence? If so, this seems somewhat too quick for me (although perhaps I can be persuaded). While I must make my remarks from memory, and memory alone, it appears to this memory that the general strike is for Benjamin something of a means with which to introduce the worldly appearance of divine violence, but this is another thing than to say that it is divine violence's desired manifestation. Moreover, I don't see how even the most general of strikes could escape the mythical. If this is accepted then how are we to read the significance of divine violence for action, and surely the concept would have no significance apart for action, would it? Are we to suggest that divine violence is then something like an event for Badiou, in which apart from its immediate radicalizing experience (which undoes narration), it can be seen only in the persistent maintance of a fidelity in the present for that which has always happened already?

Perhaps a more broad discussion of speech act theory could help in probing some of these questions. Is Hamacher's notion of the afformative really helpful here, or does it merely confuse us by separating a key component of all performatives? I would also like to ask what you meant by the following remark:

"The revolution is only a particular example of what is always the case with law as a performative act: its illocutionary force is never guaranteed."

Did you mean to write perlocution instead of illocutionary force? To put it somewhat crudely, the "illocutionary force" of a performative utterance is the verbal act which it intends to perform (e.g. asking, stating, demanding, etc.); if this is what you meant, what does it mean to say that this is something which is never guaranteed?

[Nate]

hi Adam, Marc,
"destruction in Benjamin’s concrete European situation is, implicitly, the proletarian general strike, which would de-institute the state-form itself and replace it with a completely non-violent field of social interaction that is already visible in private conversation and diplomatic relations"
I'm not sure but I think Benjamin's ambiguous on whether or not there's violence after the divine act/revolutionary general strike. If we think of the term generally, gewalt as an act of force (I tend to think 'violence' as 'bodily harm', maybe that's just me), then I don't think the general strike eliminates the possibility of violence. I think it eliminates any kind of monopoly of acts of force. There's comments on this in "The Right to Use Force", in which WB talks about the right to use force inhering solely in individuals, not in states. As such, the end of the law presumably doesn't strip individuals of a right to force. (I'm also not sure on what the relationship is between 'force' in that essay and 'gewalt' in the Critique. I haven't had time to get the German editions out of the library. There's a translator's note on the Use of Force piece saying it's a commentary an another piece, in which the word 'gewaltanwendung' is translated as 'force'. My german's not good enough to know what that '-anwendung' adds.)
take care,
Nate

[Adam Kotsko]

Guys, I apologize for not responding to your comments. This week has been way more busy than I anticipated. I'll try to do some decent responses later today.

[Matt]

according to Agamben, Derrida “guards against [Benjamin’s concept of divine violence], approximating it—with a peculiar misunderstanding—to the Nazi ‘Final Solution’” (64)

Adam, where might be the source of this quote? I couldn't immediately find it in Acts of Religion. Has Agamben responded directly to this essay somewhere, other than the mere winks in Homo Sacer II?

one wonders why Agamben winks at Derrida [in State of Exception] but fails to engage Force of Law in a more sound and frontal manner. Perhaps we’re witnessing the beginning of a disavowal of critical theory, or perhaps Agamben is aware of the impact and power Force of Law had in juridical thought and legal theory after its initial reception, and thus consequently producing its own deathbed.

[Adam Kotsko]

Sorry -- that was my oversight. The Agamben quote is from Homo Sacer.