Accounts of how the law is deeply implicated in the establishment and maintenance of positions of dominance in society have a visible (albeit still marginal) place on most university humanities and social sciences programmes. Although by no means at the forefront of these intellectual provocations and strategic interventions, Law School critiques of law (often inspired by critical and intersectional accounts of racialized and gendered societal structures and norms) have a disproportionate -and not always productive -effect on how legal rights are valued by the most marginalised in society- of whom these critiques often speak. In the laudable quest for new forms of legality to deal with contemporary harms, the extant legal system is in danger of being relegated to the status of a mere object of criticism.
Walter Benjamin was inspired to write the 1921 essay: Critique of Violence (1995: 277-300) from his conviction that the conditions under which early 20th Century European legal systems operated called for detailed analysis and assessment of why the very concept of law demands that the natural tendency of individuals to seek to achieve particular objectives through violence should be suppressed and directed toward “legal ends that could only be realised by legal power” (Benjamin, 1995:280).
It is now nearly a 100 years since the publication of Critique of Violence. Not surprisingly given the passage of time, the contemporary legal situation has changed. The interests of law still require that individual ends must be pursued in ways other than through violence, but we can no longer reliably claim that individual ends are commensurable with legal ends; or that individuals ends are realisable by legal power.
Nearly a century ago, Walter Benjamin contemplated a time when human action would not be able to intervene “directly to the resolution of conflict between man and man, but only to matters concerning objects...” (1995:289). This would be a time in which human conflicts would be addressed only “indirectly” through what Benjamin described as the “technique of civil agreement”, such as the conference (1995:289).
In the contemporary legal situation, Benjamin’s prophecy has become all too real, and is manifested whenever individuals most dependent on the state, and therefore most proximate to its force, seek to deploy legal power against the state and its various emanations -with the objective of resolving human conflict, of relieving human suffering and of seeking compensation or reparation for human loss or dispossession.
The Critique of Violence came too much in advance of this-the contemporary situation- for its author. Now (perhaps) is the time to supplement the Critique with an analysis of how and why the concept of law today requires that particular individuals must be divested of both natural and legal violence; that is divested of both the capacity to deploy violence and the capacity to deploy the law. Of crucial significance is the fact that the legal situation today is as much a feature or function of the philosophical frames and tropes within which the question of the nature of law is analysed and determined as in was when Benjamin wrote the Critique.
The late 20th and 21st century embedding of European legal systems cannot be separated from the normative theories of law which have dominated the period. It is not the positive legal philosophy or natural law account of the relation between law, violence and justice which fails to reconcile the concept of law with the individual’s pursuit of legal ends, realisable by legal power. The theoretical/philosophical frame within which the deployment by individuals of legal violence is problematized is much closer in time, with the normative theories of law encompassed within the broad ambit of critical legal studies being necessary but not sufficient examples.
In an earlier commentary, I argued that Law Schools which embrace critical legal studies are well placed to produce the lawyers that will best serve the contemporary legal services market. I stand by that position -provided that the still urgent critiques of positions of dominance are re-directed toward existing legal actors, systems and processes, and not solely toward their utopian futures.
Benjamin, W. (1995) “Critique of Violence”, in Demetz, P. (ed.), Walter Benjamin: Reflections: Essays, Aphorisms, Autobiographical Writings, New York: Schocken Books, 277-300.