The Loss of Critique and the Critique of Violence by alicejenny

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									AZOULAY.FINAL   VIOLENCE(JAN   31).DOC                                      3/10/2011 3/10/2011




    THE LOSS OF CRITIQUE AND THE CRITIQUE OF
                    VIOLENCE

                                         Ariella Azoulay*

        Over jurisdiction, right-saying, stands orthography, right-spelling,
                    and woe to the former if the latter should be wanting.**

                                            PROLOGUE

     “The people cooped up in this country no longer discern the
contours of human personality. Every free man appears to them as
eccentric”1 writes Benjamin in “Imperial Panorama,” one of the few
texts in which he dealt directly with social and political criticism of
post-World War I Germany. This critique of Germany—and of the
bourgeois political regimes of Europe in general—also lies at the basis
of his essay on violence, although in the latter it underwent a more
general conceptualization through discussion of the relationship
between government, law, and violence. More than anything else,
however, one may recognize in the background to this essay the
lingering impressions of a series of intimate encounters that Benjamin
had with government, law, and violence, in the framework of which he
came face to face with “mere life,” life stripped of its human contours,
or in the words of Agamben, who follows Benjamin on this point, “life
stripped of its political existence.”2 I am referring here to Benjamin’s
encounter with the army on reaching the age of conscription, and to his
encounters as an adolescent and a young man with the police, especially
in its capacity of managing the “pimpishness of the street.” His
encounters with these two bodies revealed that “something is rotten in
the law,” something which was exposed, so writes Benjamin, because
“in the exercise of violence over life and death, more than in any other
legal act, the law reaffirms itself.”3
     The army and the police, conscripts and street whores. On the eve

*   *
      Ariella Azoulay, Professor of Visual Culture and Contemporary Philosophy, Bar Ilan
University. Professor Azoulay is the author of ONCE UPON A TIME: PHOTOGRAPHY FOLLOWING WALTER
BENJAMIN (forthcoming 2005) (in Hebrew), DEATH'S SHOWCASE (2001) (Winner of The Affinity
Award, ICP), and the director of documentary films I ALSO DWELL AMONG YOUR OWN PEOPLE:
CONVERSATIONS (2004) (with Azmi Bishara), THE CHAIN FOOD (2004)
* **
      WALTER BENJAMIN, 2 SELECTED WRITINGS (1927-1934) 444 (Marcus Bullock & Michael W.
Jennings eds., 1999)
1
      WALTER BENJAMIN, 1 SELECTED WRITINGS (1913-1926) 228 (Marcus Bullock & Michael W.
Jennings eds., 1996) [hereinafter SELECTED WRITINGS].
2
      GIORGIO AGAMBEN, HOMO SACER (1998).
3
      Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 242.

                                               101
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102                   C A R D O Z O LAW R E V I E W                [Vol. 26:3
of World War I, Benjamin and his friends were about to be conscripted
into the army. His traumatic encounter with this institution, which I will
discuss below, disclosed to him the violence it employs and the life and
death power it wields. The law has given the army the authority to
forsake the lives of soldiers in the accomplishment of lawful objectives,
as it has obliged the conscripted soldiers, through binding legislation, to
acquiesce in the verdict. Throughout his youth Benjamin was attracted
to the prostitutes in Berlin’s streets and followed their interaction with
their bourgeois clients and their harassment by the police. His memoirs
are full of encounters with prostitutes, whose abandonment by the law
had turned them into bare life exposed to the employment of direct
violence by the police, who could remove them from place to place,
forcefully enter their homes, and violate their bodies. The nature of
prostitution as a disreputable and marginalized activity, the prostitutes’
lowly economic status as beggars, their susceptibility to attack and
invasion—these are the effects of the legal system, which has renounced
responsibility for prostitution and abandoned it to the decrees and
regulations of the police. Prostitution for him was not only a matter of
street life, but of student life as well. In his early essays, Benjamin
discussed the connection between spirit and Eros, which German
universities had denied. He ascribed this denial to the double message
and hypocrisy that bourgeois society exercises in relation to
prostitution: “In fact, with the aid of prostitutes the erotic has been
neutralized in the universities.”4 Eros had been channeled to the
exploitation of “a hydra-headed mass of women [who had] based their
entire economic existence on students (through prostitution).”5 The
regularization of prostitution, together with the law’s disavowal of it,
left it to the control of a new kind of power—convention—“at the
present, however, we are so dominated by murderous conventions that
students have not even brought themselves to confess their guilt toward
prostitutes.”6
      The law of mandatory conscription, which developed in tandem
with the modern state—the source of whose authority Benjamin
analyzed in this essay—uproots young men and women from their
civilian lives and turns them into soldiers. The soldier is absolutely
subject to the military body, which uses him to maintain itself and to
conduct its campaigns. Upon his conscription, the individual is
assimilated into the army’s hierarchical order, and from that moment on
he is subject to the chain of command and able to conduct himself only
within the strict confines assigned to him. He is in the army’s hands,
and the army is entitled to place him anywhere and in any conditions it
sees fit, in order to carry on its activities in the form of training, attack,
or defense. Stripped of any political existence, the soldier turns into an
4
     Walter Benjamin, The Life of Students, in 1 SELECTED WRITINGS, supra note 1, at 44.
5
     Id.
6
     Id. at 44-45
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2005]                THE LOSS OF CRITIQUE                               103
aggregate of skills and abilities at the disposal of the military plan, who
will risk his life to accomplish the army’s lawful objectives. General
conscription is the use of violence to preserve the law, whereby in effect
the law is not only preserved but suspended as well. The individual,
who has been entrusted to the army as a soldier, is in effect subject to
the orders and regulations issued by it, whereas in reality his political
connections to the sovereign have been severed and he has been
abandoned to the decisions of its representatives, from the lowest to the
highest echelons. Militarism, contends Benjamin, is characterized by a
dual function of the use of violence: “If that first function of violence is
called the law-making function, this second will be called the law-
preserving function.”7 In the police, he asserts, “in a far more unnatural
combination than in death-penalty, in a kind of spectral mixture, these
two forms of violence are present [law-making and law-preserving].”8
      However, before discussing the way in which the analysis of the
army and police allowed Benjamin to deconstruct the distinction
between the two forms of violence, I would like to dwell on a
watercolor painting from 1815, a copy of which was in Benjamin’s
possession, and which eventually appeared as an item in his book, The
Arcades. A glance at that painting, which bears traces of both
institutions, will make it possible to highlight more trenchantly the
connection between the two.




7
     Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 241.
8
     Id. at 242.
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104                        C A R D O Z O LAW R E V I E W        [Vol. 26:3




Source: Bibliotheque Nationale Paris

     In the painting, the army and the police come together through an
encounter between Prussian soldiers in uniforms and prostitutes. The
encounter takes place near the exit of the “Salon 113” gambling club.
In a brief fragment that appeared in the chapter “Gambling and
Prostitutes,” Benjamin writes, not in direct connection with the painting,
about the stay in Paris of Blücher, a Prussian officer, and his gambling
habits at Salon 113. At the beginning of the fragment Benjamin directs
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2005]              THE LOSS OF CRITIQUE                           105
attention to the memoirs of Gronow, a British officer, who described
how Blücher lost all his money and his servants’ money at gambling in
Paris, and had to mortgage all of his possessions. Blücher played a
major role in the overthrow of Napoleon in 1814, and his support of
Wellington at Waterloo a year later—when the watercolor was painted
—helped to hand Napoleon a crushing defeat. Blücher, however, was at
that time already in his seventies, and therefore none of the soldiers
depicted in the painting (all of whom appear young) can be identified
with him. In his memoirs Gronow describes how he
     saw a regiment of Prussians march down the Rue St. Honore when a
     line of half-a-dozen hackney-coachmen were quietly endeavouring to
     make their way in a contrary direction; suddenly some of the
     Prussian soldiers left their ranks, and with the butt-end of their
     muskets knocked the poor coachmen off their seats.9
When one looks at the painting, a different relationship emerges
between the Prussian soldiers and the locals, more precisely the local
women. Soft and seductive gazes, light touches and flirtations are the
painting’s major interest. In the center of it stands an elegant soldier
smiling at a woman with her back to the spectator, her left hand lightly
brushing his cheek as she leans forward—her right leg suspended in the
air as if in the middle of taking a step—to continue on her way, perhaps
to the next soldier. The Eros hovering among them and the money that
changes hands between them, which is symbolized by the gambling
club and a moneychanger’s office—with a “Change” sign hanging from
its façade—do not convey any hostility or alienation between victors
and losers, but only cooperative and comradely relations between
people who appear to have always been meant to come together. Just as
the French state provided Blücher, as Benjamin writes, with one
hundred thousand francs “so he would be able to play,”10 it also
permitted the fraternization of its abandoned non-citizens, treated as
licentious females, with foreign soldiers outside the demarcated areas it
had assigned to them, and in effect provided sex services to enemy
soldiers to keep them satisfied. The soldiers—whose political existence
has been suspended—were encouraged to leave their nation’s territory
and mix with the daughters of another nation. The abandonment by the
sovereign—of both soldiers and prostitutes—and the suspension of the
law in regard to them make them acceptable to each other despite the
hostilities between their two countries.
      The exception from the general rule of soldier and prostitute alike
is always related to the sovereign’s position on the threshold of the law,
and to his authority to exempt itself from its rule. In order to allow for
the exception and to make himself into an exception, the law must be
suspended, as it is suspended by and with regard to the sovereign. It is

9
     REES HOWELL GRONOW, REMINISCENCES OF CAPTAIN GRONOW (Tobias D. Robison ed., 2001).
10
     WALTER BENJAMIN, PASSAGES 509 (1989).
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106                 C A R D O Z O LAW R E V I E W             [Vol. 26:3
no wonder that Benjamin, as he contemplated a painting of Prussian
soldiers and French prostitutes, would write about the “pimpishness” of
France, which delighted in enemy monies. Benjamin quotes an
unknown source: “Blücher never left the Salon 113 in the Palais Royale,
and during his stay there he squandered six million. All of his lands
were mortgaged by the time he left Paris.”11 And, he adds, “Paris
earned more during the course of the [1814] occupation than it paid in
war reparations.”12

                                               ****

      A composite picture of the modern era, at the heart of which lies
loss, decline, and degeneracy, emerges from Benjamin’s writings after
World War I. Benjamin paints a picture of a general state of sclerosis,
the symptoms of which are evident in many fields: law, morality,
science, society, art, critique, and justice. In my reading of “Critique of
Violence” I will attempt to show that Benjamin’s implied concept of
sovereignty and its relation to the law underlies his understanding of the
loss and degeneracy of the modern era.13
      In the modern era, wrote Benjamin in 1921, law has lost any
remembrance of the violence that had constituted it:
      When the consciousness of the latent presence of violence in a legal
      institution disappears, the institution falls into decay. In our time,
      parliaments provide an example of this. . . . Only late, in a peculiar
      process of decay has it [the sphere of human agreement that is
      nonviolent] been penetrated by legal violence in the penalty placed
      on fraud. . . . The law of a later period, lacking confidence in its own
      violence. . . . mistrust of itself indicate its declining vitality.14
In the modern era, wrote Benjamin in 1928, critique was lost:
      Fools lament the decay of criticism. For its day is long past.
      Criticism is a matter of correct distancing. . . . Today the most real,
      mercantile gaze into the heart of things is the advertisement. It tears
11
       Id.
12
       Id.
13
       One may easily be led astray by Benjamin’s lamentations and melancholy tone, inferring
that he had a nostalgic attitude towards what was lost in the passage from the pre-modern to the
modern, as if these citations expressed a simple story of regression as opposed to the myth of
progress—of which Benjamin, it is well known, was a voluble critic. But this is too simple a
story. In my reading of his essay on the work of art, I attempt to make the picture more
complicated in two ways: I show that the aura is not an essential characteristic of the object, but a
form of relation between subject and object; I also analyze Benjamin’s melancholy attitude
towards the aura and his lamentation over its loss as a mechanism that manufactures the aura,
inventing it as an object of loss. See ARIELLA AZOULAY, ONCE UPON A TIME—PHOTOGRAPHY
FOLLOWING WALTER BENJAMIN (forthcoming 2005) (in Hebrew). I attempt there to further
complicate the picture by contending that at the foundation of Benjamin’s thinking lie two
intercrossing modes of time, which suspend linear time: the present time on the one hand, and the
time-of-all-possibilities on the other. The present is one possible fulfillment of time, which erases
all the other possibilities.
14
       Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 244-45.
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2005]                      THE LOSS OF CRITIQUE                                           107
     down the stage upon which contemplation moved, and all but hits us
     between the eyes with things as a car, growing to gigantic
     proportions, careens at us out of a film screen.15
In the modern era, wrote Benjamin in 1933, the individual lost the
ability to commune with the cosmos out of intoxication and within the
group:
     Nothing distinguishes the ancient from the modern man so much as
     the former’s absorption in a cosmic experience scarcely known to
     later periods. Its waning is marked by the flowering of astronomy at
     the beginning of the modern age . . . . All the same, the exclusive
     emphasis on an optical connection to the universe, to which
     astronomy very quickly led, contained a portent of what was to
     come. The ancients’ intercourse with the cosmos had been different:
     the ecstatic trance [Rausch]. For it is in this experience alone that we
     gain certain knowledge of what is nearest to us and what is remotest
     from us, and never of one without the other. This means, however,
     that man can be in ecstatic contact with the cosmos only
     communally. It is the dangerous error of modern men to regard this
     experience as unimportant and avoidable, and to consign it to the
     individual as the poetic rapture of starry nights.”16
In the modern era, wrote Benjamin in 1933, the individual’s ability to
produce similarity was lost:
     Nature produces similarities; one need only think of mimicry. The
     highest capacity for producing similarities, however, is
     man’s. . . . As is known, the sphere of life that formerly seemed to
     be governed by the law of similarity was comprehensive . . . we must
     suppose that the gift for producing similarities (for example, in
     dances, whose oldest function this is), and therefore also the gift of
     recognizing them, have changed in the course of history. The
     direction of this change seems determined by the increasing fragility
     of the mimetic faculty.17
In the modern era, wrote Benjamin in 1933, the past was lost:
     We have become impoverished. We have given up one portion of the
     human heritage after another, and have left it at the pawnbroker’s for
     a hundredth of its true value, in exchange for the small change of
     “the contemporary.”18
In the modern era, wrote Benjamin in 1936, the ability to share
experience with others was lost:
     It teaches us that the art of storytelling is coming to an end. One
     meets with fewer and fewer people who know how to tell a tale
     properly. . . . It is as if a capability that seemed inalienable to us, the
     securest among our possessions, has been taken from us: the ability
     to share experiences. . . . experience has fallen in value. And it

15
     Walter Benjamin, One-Way Street, in 1 SELECTED WRITINGS, supra note 1, at 476.
16
     Id. at 486.
17
     2 SELECTED WRITINGS, supra note 1, at 721.
18
     Id. at 735.
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108                        C A R D O Z O LAW R E V I E W                       [Vol. 26:3
      looks as if it may fall into bottomlessness. Every glance at a
      newspaper shows that it has reached a new low—that our image not
      only of the external world but also of the moral world has undergone
      changes overnight, changes which were previously thought
      impossible.19
In the modern era, wrote Benjamin in 1936, the ability to produce a
work of art that has an aura was lost:
      What withers in the age of the technological reproducibility of the
      work of art is the latter’s aura . . . if changes in the medium of
      present-day perception can be understood as a decay of the aura, it is
      possible to demonstrate the social determinants of that decay.20
“Critique of Violence” opens with a definition of the task before the
critic of violence, who is none other than Benjamin himself. It is up to
the critic to show the connection between violence on the one hand and
law and justice on the other. This relation is not self-evident, and
therefore its disclosure and presentation are the critic’s concern. But
before elucidating this relation, Benjamin lingers over a different
relation—the first in a series of digressions, characteristic of the text in
its entirety—by means of which he attempts to define what violence is.
In the first place violence is action, but not every action is violence. An
action becomes violent, says Benjamin, only when it goes into moral
relations. Benjamin does not explain what “moral relations” are or what
“going into” them means, but he contends that they can be characterized
by means of “concepts of law and justice.” The least that can be said
about these relations, at this stage, is that they apply a counter-force to a
certain action, whereby it becomes violent. They apply such force only
towards an action that acts upon them or activates them. The source of
the moral relation lies not in the subject, but in an action that is part of
an array of relations that is “activated” as soon as violence “goes into”
it.
      Of course, not every action activates the moral relations and causes
them to define the action as violence. Whether this means that only a
violent action can activate moral relations is a question that Benjamin
leaves moot. He goes on to say that moral relations can be
characterized by means of law and justice. His stated objective, as
mentioned above, is to clarify the connection between violence—which
is defined by moral relations—and law and justice—by means of which
moral relations can be characterized. It follows that if the relations
between law and justice and violence can be clarified, it will be possible
to characterize moral relations not only by means of the concepts of law
and justice, but by means of the concept of violence as well. In other
words, when the critic of violence has concluded his task, it will be

19
      Walter Benjamin, The Work of Art in the Age of its Technological Reproducibility, in 3
SELECTED WRITINGS, supra note 1, at 143.
20
      Id. at 103-04.
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2005]                THE LOSS OF CRITIQUE                              109
possible to define the field of moral relations.21
      Cautious reading discloses that the essay’s winding course has a
simple structure: the essay is divided into two unequal parts. In the first
part, which makes up the brunt of the essay, Benjamin analyzes violence
as a means, and in the second part he discusses violence as an end.
Each part is characterized by one leading actor and two in supporting
roles. The leading actors are determined in effect by the overall
characterization of moral relations: law and justice. The supporting
actors are the two seemingly contrary possibilities of imposing (or
abrogating) law and delivering justice (or injustice). Thus, the leading
actor in the first part is law, while “constitutive violence” and “law-
preserving violence” are cast in the supporting roles; the leading actor in
the second part is justice, while “mythic violence” and “divine
violence” are cast in the supporting roles. Later I will try to determine
the relation between the two pairs. I will begin by examining the first.
      Law begins with lethal, accidental, and fateful violence. The
violence that is associated with the moment of the law’s appearance,
and which is responsible for its imposition, is called lawmaking
violence by Benjamin. This violence might be brief and to the point, or
it could be a fight to the death—in any event, upon its conclusion the
winning side establishes law. This foundation story may be a real
chapter in the history of jurisprudence, or it may be imaginary, a sort of
phantasmal story that law attributes to itself for its own support and
aggrandizement. Either way, this violence’s task is limited: as soon as it
has been activated, enabling the constitution of law, it makes way for
the rule of law.
      However, law—or to be more precise, the rule of law—cannot
exist without violence. Law needs this violence to maintain its rule.
This is a different kind of violence, which is subordinate to the rule of
law, obeys its orders, and is dedicated entirely to its benefit. Benjamin
uses the military and the police to provide examples of both kinds of
violence. Benjamin’s choice of these examples is interesting because of
the standing of lawmaking violence in their practice. With respect to
the military, lawmaking violence and law-preserving violence take place
at separate moments, whereas with respect to the police, it is a hybrid of
the two. The military rarely engages in lawmaking violence, only in
times of war devoted to the elimination of the enemy as an independent
political entity. Actually, the violence that takes place during war itself
is not constitutive; it becomes lawmaking violence only at war’s end,
when a new law takes the place of the old and is imposed on the other

21
       This does not answer the question “What is morality?,” but it does outline the arena in
which moral questions may arise. Moral questions underlie all of Benjamin’s writings, but out of
his hundreds of essays and other works, they were formulated explicitly only in a few places,
especially in a few fragments on morality, see WALTER BENJAMIN, FRAGMENTS (LA PUF LIBRAIRIE DU
COLLÈGE INTERNATIONAL DE PHILOSOPHIE 2001) [hereinafter BENJAMIN, FRAGMENTS] and the essay
“Critique of Violence.”
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110                   C A R D O Z O LAW R E V I E W             [Vol. 26:3
side, who accepts it willingly or reluctantly. Law stops the killing and
replaces the violence. This is only an apparent replacement, contends
Benjamin. Actually, law carries on the violence by other means.22 By
its very definition, the police force is meant to enforce the law. To do
this, it cannot suffice with engaging in law-preserving violence. In
response to every case of lawbreaking, or of what it grasps as a threat to
law, it activates violence that may at any moment turn out to be
constitutive of law. Such lawmaking violence may burst out ad hoc in
the urban space, due to an actual transgression of the law, or it may act
in advance or retroactively through the promulgation of new ordinances
to deal with new situations.
      In a long and systematic article devoted to the essay on violence,
Jacques Derrida proposed a deconstructivist reading of the text, in the
course of which he sought to question Benjamin’s distinction between
the two types of violence and expose its basic instability. The principle
of recurrence is already present in original, lawmaking violence, says
Derrida, and law-preserving violence is potentially constitutive and may
become so at any moment. “These Benjaminian oppositions,” writes
Derrida, “seem to me to call more than ever for deconstruction.”23 In
his deconstructivist reading of Benjamin’s essay, Derrida missed
Benjamin’s own critique of this very distinction between the two types
of violence, which joins his overall critique of democracy. Near the end
of the essay, Benjamin writes: “A gaze directed only at what is close to
hand can at most perceive a dialectical rising and falling in the
lawmaking and law-preserving forms of violence.”24 Benjamin does not
suffice with asserting the dialectical relation between the two kinds of
violence, but seeks to expose the law that binds them together. To
follow this move, I propose reading the relation between the two types
of violence in connection with the concepts of loss and degeneracy that
are scattered throughout Benjamin’s various texts, including this essay.
      World War I, the invention of photography, the rise of Fascism, the
appearance of modern astronomy, the emergence of democracies and
parliamentary regimes—these are all turning points that produce loss,
impoverishment, decline, or degeneracy. Benjamin employs these terms
interchangeably as synonyms. His use of the term loss does not
describe the disappearance of something or somebody, but the withering
of a certain capability due to a twofold change, in both the subject and
the world.25 The spatialization of the subject in the modern era and its
22
       In the example of war, one clearly sees the connection between this contention by
Benjamin and Clausewitz’s assertion about the relation between war and diplomacy. (On the
reversal of the relations between war and diplomacy, i.e., violence and law, see MICHEL FOUCAULT,
THE HISTORY OF SEXUALITY (VOL. 1) (1980)).
23
       Jacques Derrida, Force of Law: “The Mystical Foundation of Authority,” 11 CARDOZO L.
REV. 919, 996 (1990).
24
       Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 251.
25
       When he writes about the “loss of the aura,” he is describing not the loss of a concrete
entity but about the impoverishment or degeneration of the perception.
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2005]               THE LOSS OF CRITIQUE                              111
hybridization with various instruments—such as the telephone or the
camera—shape a new field of relations of gaze, speech, and action.
This field is characterized by the collapse of distance and by repetition
or recurrence.      The means of transportation, reproduction, and
distribution reshape the distance between different things, so that
faraway things may appear to be near, and vice versa. As a result, the
oppositions between inside and outside collapse. These media enable
the recurring and repetitive appearance of things, whose presence is
alternately strengthened and weakened.          These changes in the
organization of time and space supply the conditions for the appearance
of modernist loss—the loss may appear anywhere (the collapse of
distance) and all the time (recurrence). The loss cannot be ascribed to
either man or the world—it exists in the encounter between them. Loss
has become the new interface, by means of and through which modern
man conducts himself in the world.
      Modern loss, to which in most cases institutional expression is
given as in astronomy or in jurisprudence, is not a temporary condition
that will someday pass. Loss is of the essence of modernism. Benjamin
views the shout “Things cannot go on like this” as a bourgeouis outcry,
voiced by people whose conditions of life have been bettered, but yet
hold on to anachronistic concepts of property and security. To
Benjamin’s understanding, the decline, deterioration, or loss is not a
singular event but a persistent situation, the exception having become
the rule:
     To decline is no less stable, no more surprising, than to rise. Only a
     view that acknowledges downfall as the sole reason for the present
     situation can advance beyond enervating amazement at what is daily
     repeated, and perceive the phenomena of decline as stability itself
     and rescue alone as extraordinary, verging on the marvelous and
     incomprehensible.26
      Loss, then, is not an exception that interrupts a continuum of
stability, but the stable element that spreads from field to field in
modernism. For this reason, things will not be able to continue this
way, declares Benjamin, only when they will not be able to continue at
all: “the assumption that things cannot go on like this will one day
confront the fact that for the suffering of individuals, as of communities,
there is only one limit beyond which things cannot go: annihilation.” 27
Loss contaminates everything; it spares nothing—nutrition, the body,
movement, different skills, objects or human relations. It is structured
into the conditions of modern life, or more properly, into the way they
are grasped and experienced. However, loss is experienced in different
ways by members of different classes:
     The helpless fixation on notions of security and property deriving
     from past decades keeps the average citizen from perceiving the
26
     Walter Benjamin, One-Way Street, in 1 SELECTED WRITINGS, supra note 1, at 451.
27
     Id.
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112                        C A R D O Z O LAW R E V I E W               [Vol. 26:3
      quite remarkable stabilities of an entirely new kind that underlies the
      present situation. Because the relative stabilization of the prewar
      years benefited him, he feels compelled to regard any state that
      dispossesses him as unstable . . . even before the war there were
      strata for whom stabilized conditions were stabilized wretchedness.28
      Loss, as stated above, does not describe the situation of a certain
person who has lost something, but the structural conditions of modern
existence. In the framework of these conditions, it is not loss that
belongs to the individual but the individual who belongs to loss, which
is prior to the individual and exists in any event. Benjamin calls
bourgeois that attitude towards loss, which is exhausted by the question
whether one’s personal conditions of existence have deteriorated,
degenerated, or been impoverished. In contrast to it he posits a new
attitude, focusing on the question what is to be done about this loss:
“Moral philosophy is a senseless tautology. Morality is but a refraction
of action in knowledgability (connaissabilité) . . . Morality isn’t a
mental disposition.”29
      This sentence encapsulates a doctrine of morality, which locates
morality in the world as action and recognition (connaisance) and as the
relation between them. Morality is not a matter of personal or collective
inclination but a structure of relations. Its point of departure is some
action in the world. Benjamin does not expand upon the nature of this
action or the identities of the knowing subject and the active subject—
whether they are one and the same or two separate entities. Benjamin’s
inattention to these details does not stem from forgetfulness or
negligence. His talk of “action” and “recognition” derives from his
Copernican reversal of the relation between them and the knowing and
active subject. The subject is not the source of the action or of the
recognition, but the rack on which they are hung. The refraction of the
action in recognition is not necessarily subsumed in the same subject,
but may take place between different subjects—one acting, the other
knowing. However, the relation between action and words is not one of
translation or direct expression, but one of refraction—in the course of
which recognition diverts action from its path. Morality, then, is the
way in which recognition succeeds in changing the action’s direction.
In this way, recognition re-acts upon the action. The action, says
Benjamin, will be defined as violent when it goes into the field of
“moral relations.” Acknowledgment of the action, which is meant to
change its direction, in effect exerts a counter-force upon it. Only the
refraction of recognition as action, in additional recognition, can
illuminate the action as moral or violent. Morality, then, does not act
outside relations of violence. In an era of collapsing distances, in an era
when relations between outside and inside or near and far are no longer
relations of exclusive opposition, in order to act even morality can only
28
      Id.
29
      BENJAMIN, FRAGMENTS, supra note 21, at 102.
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2005]                THE LOSS OF CRITIQUE                                113
change the direction of the (violent) action, but not evade it entirely.
Morality and violence both live under the same roof, exerting force on
one another, and are differentiated by the way they are refracted in
recognition and continued in action. Morality is neither the action nor
the recognition but the refraction, namely the (violent) attitude towards
the action.
      To understand the term refraction, the action needs be likened to a
ray of light that is refracted as it passes from one medium to another.
Benjamin does not provide any examples; as always, he leaves his
readers the task of finding traces of them in the margins of his texts. In
the eighth thesis on history, we find the organizational blueprint of
moral refraction: “The tradition of the oppressed teaches us that the
‘state of emergency’ in which we live is not the exception but the
rule.”30 Social distortion, political oppression and cultural larceny are
not an accidental, random or merely local affair. Recognizing these
phenomena, together with the generation of the sequence of events, the
virtual constitution of the tradition of the oppressed,31 the identification
of the system or of its systematic operation—all these are the fibers of
which moral relations are woven. Amazement at the fact that people are
still dying of hunger or being deprived of their basic rights in the 20th
century is not moral consciousness: “this amazement is not the
beginning of recognition.”32 Their situation can be recognized as an
outcome of violence only in the framework of moral relations, i.e., only
when it is refracted in recognition and diverted from a “natural” state to
a state brought on by an act of violent oppression: the starved, the
deprived, and the beaten.
      In several places, as in the eighth thesis cited above, Benjamin
posits the rule of law and morality one against the other. This is not a
matter of exclusive oppositions but one of dialectical relations, which
are based on repression and the recurrence of the repressed. It is
customary to view the law, writes Benjamin in 1921, as a most sublime
expression of the intentions of morality itself.33 However, he continues,
the rule of law “traces, on the contrary, very precisely the frontier which
separates law from the moral world.”34 Law forgets or represses the
morality enfolded within it. But in order to forget the morality, it
engages in violence, and in order to seize power and become ruler it
must forget this violence too: “When the consciousness of the latent
presence of violence in a legal institution disappears, the institution falls
into decay.”35 Forgetfulness of the violence and of morality makes the
rule of law degenerate. Their presence vanishes from the consciousness
30
      Walter Benjamin, On Language as Such and on the Language of Man, in 4 SELECTED
WRITINGS, supra note 1, at 392.
31
      See Benjamin’s discussion of tradition in 4 SELECTED WRITINGS, supra note 1.
32
      Id.
33
       See BENJAMIN, FRAGMENTS, supra note 21, at 107.
34
      Id.
35
      Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 244.
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114                    C A R D O Z O LAW R E V I E W              [Vol. 26:3
of the institution, whose stated purpose is the extinction of violence and
the imposition of law. The institution is unaware of the violence in
which it engages in order to achieve this objective, as well as of the
violence invested in maintaining its rule. Such degeneracy, says
Benjamin, is typical of the parliamentary regimes that “offer the
familiar, woeful spectacle because they have not remained conscious of
the revolutionary forces to which they owe their existence.”36 But the
repressed will return, as Benjamin shows in that selfsame eighth thesis
cited above.
      The ability to recognize violence that produces the exception to the
rule and to act upon it is learned through tradition, the tradition of the
oppressed—those who have been excluded from the general rule. In
contrast to the power of the sovereign, who by means of the law decides
on the exception to the law,37 Benjamin posits the moral force of the
individual: “We must attain to a conception of history that accords with
this insight. Then we will clearly see that it is our task to bring about a
real state of emergency.”38 Morality—like critique in Foucault—is not a
primal force, but a counterforce. Morality always extends from the
action—as the photographed image is drawn from the object—and
causes its refraction. The refraction of morality should not stop at
active consciousness. Morality has to keep on acting: “Then we will
clearly see that it is our task to bring about a real state of emergency.” 39
Thus does moral consciousness itself—knowing that the exception is
the rule—turn into [violent] action—“bringing about a real state of
emergency.”
      The degeneracy of the legal institution derives from the degeneracy
of its violence. Benjamin points to modern parliamentary regimes as an
example of the law’s degeneracy. The parliamentary regime was
established by revolutionary forces that fought the existing law and
sought to constitute another, revolutionary law in its place. However,
the law’s institutionalization constituted a betrayal of the revolutionary
forces that established it. The new law abrogated the old, but at the
same time it subdued the revolutionary forces and once again made
them subject to the law. There is a structural discrepancy between the
idea of revolution and the new law that makes the law forget those to
whom it owes its existence. This is not a matter of forgetting a debt
owed to certain people, but forgetfulness of the power of revolution to
destroy and constitute the law. The law-preserving violence acts
diligently to maintain and enforce the new law that has been constituted,
fighting the revolutionary forces that threaten the law. Lawmaking
36
       Id.
37
      Benjamin wrote this essay in parallel to Carl Schmitt’s writing of “Political Theology,” in
which he develops the concept of sovereignty as deciding on the exception. On the concept of
sovereignty in Schmitt, see AGAMBEN, supra note 2.
38
      Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 244.
39
      In the essay on the work of art, Benjamin demonstrates this in regard to the shock that
needs to be used against itself (Benjamin, 1996).
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2005]                THE LOSS OF CRITIQUE                             115
violence is reduced to vestigial traces represented in law-preserving
violence: “All law preserving violence, in its duration, indirectly
weakens the lawmaking violence it represents.”40 Actually, there is a
twofold forgetfulness here: not only of the lawmaking violence that
made possible the rule of law, but also of the latent potential for
violence in the law itself—of constituting a new law. The latter
forgetfulness means the abandonment of social reality to the rule of law-
preserving violence, which has to reconstitute the law time and time
again in the face of ongoing conflicts in changing circumstances that
often call for a new law, but which presents its constitution as
preservation. The weakening of the two poles—lawmaking violence on
one hand, and the revolutionary forces that challenge the rule of law on
the other—is another way of describing a society based on an
enervating consensus.
     The separation between law-preserving and lawmaking violence
constitutes the beginning of violence’s degeneracy. Lawmaking
violence acts in the realm of the exceptional, those cases for which a
rule needs be constituted, whereas law-preserving violence acts in the
realm of law that prescribes rules to which each case needs to conform.
Lawmaking violence acts in the realm of the singularly unique, for this
is the nature of the act of constitution: it does not derive the new law
from a former law, but creates it ex nihilo, drawing a new line of
demarcation between the rule and the exception. Lawmaking violence
seeks to establish law contested by none other—for otherwise there
would be no point to enacting it—which will provide an answer for
what is left outside the rest of the rules. Law-preserving violence acts
in a field that is open to reproduction; it assumes that it is possible to
reproduce the rule infinitely to conform to every new case. The
separation between the two types of violence is meant to obscure the
scandalous dimension of the operation of the rule of law: its
presentation of the singularly unique as a reproducible case, of the
exception as the rule. The democratic regime is based on this scandal:
      [I]t cannot finally be denied that in absolute monarchy, where they
      represent the power of a ruler in which legislative and executive
      supremacy are united, their spirit is less devastating than in
      democracies, where their existence, elevated by no such relation,
      bears witness to the greatest conceivable degeneration of violence.41
The democratic regime has forgotten, and would have everybody forget,
the lawmaking violence in which it incessantly engages to preserve its
monopoly over determining both the rule and the exceptions to it.42
     Benjamin wrote “Critique of Violence” in the wake of World War
I, and it is most likely that the essay was conceived as a response to the
40
       Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 251.
41
       Id. at 243.
42
       Benjamin seems to share here Carl Schmitt’s understanding of sovereignty as the authority
to suspend the law and to proclaim the exception.
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116                  C A R D O Z O LAW R E V I E W              [Vol. 26:3
war. Especially interesting in this context is his discussion of the
military, for it concerns an institution that engages in lawmaking
violence as well as law-preserving violence, and does so by
authorization of the state. The modern state grants the military (as well
as labor organizations, writes Benjamin) the authority and right to
engage in violence to achieve certain purposes, which it has determined
to be lawful. However, although the purposes to which these
institutions are dedicated have undergone legalization, the state
continues to view these purposes as natural goals. At moments of crisis,
defending these “natural goals” may come into conflict with other
lawful purposes that the state would like to defend. A hypothetical
example of this might be the dismantling of Jewish settlements in the
occupied territories. Any such withdrawal may lead to conflict should
the number of senior military commanders, who support the settlers or
are themselves settlers, greatly increase. The “natural goal” of
defending the nation and homeland would be interpreted in different
ways by the army and the “new army” created within it. This danger is
not a matter of unusual historical circumstances, but is built into the
very logic of the relationship between the state and the military. The
state, having entrusted the enforcement of the law to one of its organs,
the military, on the assumption that this organ is fully subservient to it,
subsequently would find itself in conflict with this selfsame organ,
which might challenge the state’s monopoly in the name of its natural
goals.43
      Like all Benjamin’s writing, the essay on violence is a bio-
graphical text—the writing of life, or, to use Benjamin’s own words, the
“refraction of action in recognition.”44 With the outbreak of war, just as
he was approaching conscription age, Benjamin first entered the portals
of law. On his own initiative, he went to the conscription board and
asked to be drafted without delay, before the official date.45 However,
his request to volunteer was rejected. The army did not entirely release
him from military service, but postponed the date. Benjamin paid
another three visits to the conscription board, but on these occasions he
was summoned by the law due to obligatory general conscription, and
tried to evade its decree by either postponing his service or obtaining a
release. Within a short time, his attempt to volunteer—the desire to
43
       The independent conduct of the Israeli army few times during the beginning of the second
intifada often at odds with government policy, might also serve as an example. At the center of
the dissonance between the government and the army was the question of the entrance of the
army to zone A of the Palestinian Authority. On these events see Amos Harol & Avi Isacharoff,
THE SEVENTH WAR (2004) (in Hebrew).
44
       BENJAMIN, FRAGMENTS, supra note 21, at 102.
45
       According to Gershom Scholem, Benjamin’s reason for volunteering was social rather than
patriotic. Benjamin thought that if he and his friends would be drafted on the same day, there was
a greater chance that they would not be separated by the army but allowed to serve together. See
GERSHOM SCHOLEM, EXPLICATIONS AND IMPLICATIONS—WRITINGS ON JEWISH HERITAGE AND RENAISSANCE
(1989) (in Hebrew). I am not interested here in Benjamin’s specific motives, whatever they may
have been, but in the fact that he entered the portals of law on his own initiative.
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2005]                THE LOSS OF CRITIQUE                               117
preserve the law and obey it out of identification with the state’s lawful
goals—turned into an attempt at evasion, the desire to get free of the
law through imposture. Benjamin’s own appeal to the law had been met
with rejection. Rejection can be a merely technical matter, a negligible
event that leaves no marks, but it can also reorganize the visual field and
disclose cracks in what had formerly appeared self-evident.
      To the young Benjamin, conscription was a self-evident matter. He
knew the date was approaching and merely wanted to better the
conditions and adapt them to his needs. The rejection of Benjamin’s
request to be drafted a few weeks before the officially scheduled date, at
a time when the public was being invited to volunteer to serve in the
army, was an expression of the military’s power to determine at one and
the same time both the rule and the exception to the rule. Having been
denied exceptional status and rejected by the army, Benjamin
understood the latent violence of the conscription law and the
possibility of rejection as action accessible not only to army bureaucrats
—who did indeed employ it towards him—but to himself and other
members of his generation as well. The act of rejection, of which the
conscription clerk had been the “author,” was refracted in Benjamin’s
mind and turned into self-rejection; in other words, Benjamin rejected
the army on his own initiative. Earlier, and only a few days after the
army rejected him, Benjamin received a letter from his good friend, poet
Fritz Heinle. But Heinle was no longer among the living. He had
committed suicide with his girlfriend, Rika Seligson, immediately
following the German invasion of Belgium. In his letter to Benjamin,
Heinle wrote: “you will find us lying in the Meeting House.”46 Heinle
referred to the apartment where they had gathered regularly with their
friends to conduct intellectual and political activities.47 Heinle and his
girlfriend chose to die in a distinctively political place. This choice
gave their act of protest the dimension of spectacle.
      I mention Heinle’s suicide, as well as Benjamin’s rejection by the
army, not to explain Benjamin’s motives but to trace Benjamin’s
encounter with the law. World War I was accompanied by the critique
of the military and its operational mechanisms. Benjamin, however,
criticized the critics for seeing only the element of law-preserving
violence in conscription, calling their critique “childish anarchy.” He
contended that they were missing the broader context involved in
conscription, this being the employment of violence to achieve a lawful
goal: “Militarism is the compulsory, universal use of violence as a
means to the ends of the state”48 Benjamin drew a parallel between two
pairs of concepts: lawmaking violence is dedicated to the achievement
of natural goals, whereas law-preserving violence is dedicated to the
46
      2 SELECTED WRITINGS, supra note 1, at 605.
47
      In his Chronicle Benjamin wrote that the meeting house was located in a district that
“remained for a period the central meeting place of the living.” Id.
48
      Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 241.
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118                   C A R D O Z O LAW R E V I E W              [Vol. 26:3
achievement of lawful goals. However, since the parallel is only partial,
it also undermines the opposition between the two types of violence in
another way.
      Conscription, then, is the state’s engagement in law-preserving
violence on behalf of achieving a lawful purpose. Benjamin contended
that critique of the violence of conscription “coincides with the critique
of all legal violence–that is, with the critique of all legal violence–that
is, with the critique of legal or executive force, and cannot be performed
by any lesser program.”49 The critique of any lawful violence should
necessarily lead to critique of the radix of the law, which Benjamin
identifies with the violence exercised by the sovereign’s power over life
and death, or, in the terminology later discussed by Foucault: “the right
to kill and the power over life.” Likewise, any discussion of Heinle’s
suicide or of Benjamin’s attempts to evade the draft cannot merely
suffice with the context of political protest over the war and its
objectives. This dual encounter with the conscription situation was
what allowed Benjamin to strip the law of its camouflage and see it for
what it is: “for in the employment of violence over life and death, more
than in any other lawful act, the law reaffirms itself.”50 Conscription by
the military means that the civilian is expropriated of his political life
and transformed into “bare life,” to use Agamben’s notion.
      Agamben writes: “there is a line in every modern state marking the
point at which the decision on life becomes a decision on death, and
biopolitics can turn into tanto-politics.”51 Not surprisingly, Benjamin’s
discussion of conscription, in the very same passage, turns into a
discussion of the death penalty. The same bare life, which has been
expropriated from the political space, turns into life that may be taken
when a lawful purpose that justifies its abandonment appears. In a letter
that Benjamin wrote early in 1915 to his revered teacher, Wyneken, he
declared that he was breaking off relations because of Wyneken’s part in
abandoning the youth of Benjamin and his friends: “you have betrayed
women loved by your pupils. You have finally betrayed youth to the
State that dispossessed you from everything. But youth belongs only to
prophets who love it, especially its idea. Youth has avoided your
misleading hands and with no name it will continue to suffer.”52
49
      Id.
50
      Id.
51
      AGAMBEN, supra note 2, at 122.
52
      WALTER BENJAMIN, CORRESPONDANCE 113 (Aubier 1979). It is difficult not to think of
Wyneken, who sent his students to war, as one of the inhabitants of Kurfurstendamm in one of
Benjamin’s aphorisms in One-Way Street:
     Three thousand ladies and gentlemen from the Kurfürstendamm are to be arrested in
     their beds one morning without explanation and detained for twenty four hours. At
     midnight a questionnaire on the death penalty is distributed to the cells-a questionnaire
     requiring its signatories to indicate which form of execution they would prefer, should
     the occasion arise. Those who hitherto had merely offered their unsolicited views “in
     all conscience” would have to complete this document “to the best of their
     knowledge.” By first light-the hour that in olden times was held sacred but that in this
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2005]                THE LOSS OF CRITIQUE                               119
     Benjamin’s evasion of military service, like Heinle and Seligson’s
suicide, is not only an attempt to restrain the law’s grip on life, but also
an attempt to prevent the military from turning it into bare life: “Man
cannot, at any price, be said to coincide with the mere life in him, any
more than it can be said to coincide with any other conditions and
qualities, including even the uniqueness of his bodily person.”53 Despite
the clearly apparent differences between the two forms of opposition to
the law—suicide and imposture—these three young people of refined
sensibility were trying to expose the rottenness of the law:
      But in this very violence [violence over life and death] something
      rotten in the law is revealed, above all to a finer responsibility,
      because the latter knows itself to be infinitely remote from
      conditions in which fate might imperiously have shown itself in such
      a sentence. Reason must, however, attempt to approach such
      conditions all the more resolutely, if it is to bring to a conclusion its
      critique of both lawmaking and law-preserving violence.54
In both cases, the mode of action of Benjamin and his friends was not
limited only to achieving their objective—exemption from military
service and the war—but included the staging of an entire mis-en-scène.
Heinle and Seligson invested in their choice of site, the writing of the
letter, and an attempt to shape in advance the spectators’ behavior
toward the spectacle of their death. Benjamin put his efforts into the
construction of a reliable character, undergoing a series of hypnotic
treatments that helped him play the paralytic in his first attempt at
evasion, and a sufferer from sciatica in the second. Beyond their moral
or political critique of the war and the military, Heinle and Benjamin
inscribed in their bodies the boundary of the law’s intervention, Heinle
by turning himself into a corpse and Benjamin by maiming himself in a
way that made him unfit for service.
      Interestingly, in this text written not long after World War I,
Benjamin disregarded the violence employed during wartime, and his
discussion of war is limited to a single sentence, which surprisingly
enough is concerned with the peace treaty that follows war: “and even
in cases where the victor has established himself in invulnerable
possession, a peace ceremony is entirely necessary.”55 For a long time I
have thought about this sentence in the context of local affairs: the
framework of peace-signing ceremonies held during the mid-1990s in
      country is dedicated to the executioner–the question of the capital punishment would
      be resolved.
Walter Benjamin, One-Way Street, in 1 SELECTED WRITINGS, supra note 1, at 455.
53
       Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 251.
Heinle and Benjamin’s actions can also be interpreted in light of Benjamin’s distinction between
two types of strike: the political strike, which seeks to constitute law, and the general proletarian
strike, which ignores the law, is indifferent to it, and seeks to destroy it. In their actions, they
went on strike with their bodies, denying the law what it wanted: their bare lives. They did not
seek to constitute a new law, and in this sense they were indifferent to the law.
54
       Id. at 242.
55
       WALTER BENJAMIN, ECRITS FRANÇAIS 240 (1991).
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120                   C A R D O Z O LAW R E V I E W             [Vol. 26:3
the Middle-East, in the course of which the new rule of law—the
Palestinian Authority—demonstrated its power to its new subjects. The
historical context before Benjamin’s eyes was that of the Treaty of
Versailles, which was signed a few years before he wrote the essay. In
the framework of the Treaty of Versailles—the signing of which is
apparently the “peace ceremony” that Benjamin is talking about—
Germany was required to make territorial concessions, pay reparations,
and deliver up its military officers for trial before an international
tribunal. What these two examples have in common—Israel of the late
20th century and Germany of the early 20th century—may illuminate
Benjamin’s decision to write about a peace ceremony in order to discuss
war. The end of war is a distinctive moment in which lawmaking
violence is employed. The winning side violently declares the war over
and sets in place the new balance of power with a new law. Law-
preserving violence enables the new rule of law to maintain its power
and rule. Modern states aspire to a monopoly over both types of
violence, the lawmaking and the law-preserving, to ensure a continued
unidirectional employment of violence.
      The description of war from the perspective of these two forms of
violence ignores another form of violence, prior to them. This violence
may be termed chaotic or multidirectional; it is violence that
undermines the stability of both internal and external relations,
deviating beyond any picture depicting only two sides or the particular
relations between the central authority that proclaims the law and rules
by the law, and its subjects. War necessarily creates a gap between the
picture of the balance of power that preceded it and the one created in
its wake. This gap derives from the fact that, in war, no single side has
a monopoly over the employment of violence, and from the tension
between the violence directed “inside” and “outside.” This phase may
be a hypothetical description of the “natural state”—the absence of any
rule—but it is also an actual description of wars between two states, two
arrays of law, or situations involving the breakup or breakdown of a
central rule which sought to obscure the chaotic multiplicity preceding
its constitution, as happened, for example, in Yugoslavia. This phase of
violence excludes the existence of the other two forms. Chaotic or
multi-directional violence eliminates the other two forms because it
disrupts the state’s monopoly over the employment of violence and does
not allow the rule of law to go on functioning as before. Lawmaking
violence eliminates chaotic violence, since the law that it establishes is
supposed, by its very essence, to be enforced by the apparatuses of a
state that has a monopoly over the use of violence. Law-preserving
violence, which by definition is responsible for enforcing the law, is in
effect responsible for keeping multidirectional (or chaotic) violence
outside the realm of law. Chaotic violence is removed anew every time
it threatens to erupt. In other words, law-preserving violence always
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2005]                 THE LOSS OF CRITIQUE                                  121
exists at the same time as lawmaking violence—they are the two faces
of the same violence. The latter imposes the law and forces other
agents of potential violence out of the game, while the former enforces
the new rules of the game and defends against any incursion by those
agents of violence.
      The relationship between Benjamin’s two forms of violence, then,
does not constitute a polarized structure with two mutually exclusive
opposites; violence always-already exists in a threefold structure.
Where these complex relations among the forms of violence leave their
most distinctive mark is the peace-signing ceremony. Peace is supposed
to eliminate war and take its place. If war is a state of regression of the
law, so that its radix—“the highest violence, that over life and death”—
is exposed and spreads in every direction, then the purpose of the peace
treaty is to concentrate violence anew into a single source, which will
itself be concealed and allow the law to flourish and blossom. But the
peace-signing ceremony, as opposed to the peace treaty, is another
matter. The winner cannot suffice with victory in war. He must
“conduct” or “win” an additional campaign—the one in which the
figure and images of his victory are created. A peace treaty requires the
agreement—willing or reluctant—of at least two sides, winner and
loser. In a peace treaty, which expresses the elimination of war, the
traces of war are in effect inscribed. Even if the war has ended with the
(re)establishment of a sovereign regime in one or both of the belligerent
states, hovering over them is the ghost of the war’s multidirectional or
chaotic violence, which infringed upon their sovereignty. The peace
treaty removes the multidirectional violence and enables the restoration
of the state’s monopoly on violence, or the appearance of “monopolistic
violence.” A peace treaty, then, is simply the substitution of one kind of
violence for another, the violence of peace for the violence of war.
However, Benjamin asserts, this substitution is not enough. The
substitution must be accompanied by a ceremony—which does not lack
its own dimension of violence. The political ceremony is a form of
ritual, or at least preserves the traces of ritual, and its ritualistic features
are maintained even when the ceremony itself is entirely secular. It
seems reasonable to read this ceremony into the general context of
Benjamin’s concept of ritual.
      Benjamin assumes, as I showed elsewhere,56 that cultural existence
has two dimensions: ritual and display. It is important to note that, in
contrast to the prevalent view of ritual and display as two successive
stages, the latter replacing the former, Benjamin sees them as existing
concurrently, only the relations between them changing in different
historical periods. Even in modernism, where it appears that the
dimension of display has won out over that of ritual, the latter still has

56
      See my discussion of his essay on the work of art, ARIELLA AZOULAY, DEATH’S SHOWCASE—
THE POWER OF IMAGE IN CONTEMPORARY DEMOCRACY (2001).
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122                   C A R D O Z O LAW R E V I E W              [Vol. 26:3
not entirely disappeared: “In photography, exhibition value begins to
drive back cult value on all fronts. But cult value does not give way
without resistance. It falls back to a last entrenchment: the human
countenance.”57 In my essay on the work of art,58 I predicated the
difference between ritual and display upon their different relations to
place: ritual is a place-specific activity manifested in special sites,
whereas display is an activity that does not restrict itself to a single
place of its own, has no necessary connection to any specific site, and is
always amenable to moving from one place to another. The difference
between the violence of war and the violence of peace can be
formulated, correspondingly, in terms of the difference between ritual
violence and display violence. The violence of war is direct, coarse,
and physical, being employed in a particular place, over which and in
which the fighting occurs. The violence of peace is indirect, enfolded,
and symbolic, being employed in no necessary concrete relation to a
particular site.
      When peace begins to press back the violence of war the latter
does not retreat without offering resistance: it falls back on its last
stronghold—the peace-signing ceremony. The ceremony is the place
over which the ghost of ritual violence hovers. The peace-signing
ceremony, writes Benjamin, remains necessary for the victor even when
he has managed to constitute an unshakable regime, as is demonstrated
by the two historical examples mentioned above. In the local context of
peace agreements, despite the constitution of a sovereign Palestinian
law—the Palestinian Authority—it was the Israeli regime of occupation
that determined the protocol of the ceremony, thus continuing to
demonstrate its power to both the Israeli and the Palestinian public. In
the context of the Treaty of Versailles, those who determined the new
law and the ceremonial protocol, displaying its presence in the
ceremony itself, were the victorious Allies. Above the ceremony this is
supposed to rehabilitate the rule of law—the one law—hovers the ghost
of the multidirectional violence of war, casting its shadow over the
sovereign’s law, witnessing its origin in fate: “It [the positive law] sees
this interest in the representation and preservation of an order imposed
by fate.”59
      Simply read, the term fate describes the accidental element in the
victory of one law over the other, just like that “violence [that] bursts
upon Niobe from the uncertain, ambiguous sphere of fate.” 60 If fate is
the origin of law, law is diverted from the realm of human reason to the
realm of chance and arbitrariness, and its universal standing is
denigrated. For a deeper understanding of Benjamin’s assertion, one
needs to refer to the term fate and its range of meaning in the world of
57
      3 SELECTED WRITINGS, supra note 1, at 108.
58
     See AZOULAY, supra note 13.
59
     Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 241.
60
     Id. at 248.
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2005]               THE LOSS OF CRITIQUE                           123
myth. Fate is indeed the origin of the law because the violence that
constitutes law is mythic violence. Mythic violence is not governed by
any law, and its consequences cannot be anticipated. It can only be
explained and interpreted—but not justified—in hindsight.
     Mistakenly, through confusing itself with the realm of justice, the
     order of law—which is merely a residue of the demonic stage of
     human existence, when legal statutes determine not only men’s
     relationship but also their relation to the gods—has preserved itself
     long past the time of the victory over the demons.61
      When Benjamin presents the rule of law as an echo of the rule of
violence, he is actually trying to deconstruct the connection between
law and justice. As an example he cites Niobe, who boasted that there
were none more beautiful than her sons and daughters. Her children
were cut down by Apollo and Artemis, the children of the goddess Leto.
Niobe did not break any law, and it is therefore impossible to interpret
the murder of her children as an act of punishment; moreover, it was
Niobe, not her children, who angered fate, yet they died and she was left
alive. Benjamin depicts fate—alternatively, the law—as an animal that
keeps on pursuing its prey in order to demonstrate its superiority over
and over again: “Mythic violence is bloody power over mere life for its
own sake.”62 He contends that seizing power and preserving it is the
principle that underlies the constitution of mythic law. To fate he
ascribes only one purpose—winning—and in order to achieve victory,
all means, including the most violent, are acceptable. The paradigm of
the violence employed in the act of constituting law is not war, but
“peace”; Benjamin himself puts the word in quotation marks, for peace
is not the opposite of violence but one of the ways to employ it. The
violence of “peace” manifests itself in the first place in determining the
boundaries of the rule of law, and in making each person within the
territory a subject of the new law. The efforts of “peace” are not
directed towards the destruction of the enemy, as happens in war, but
towards the imposition of rights and obligations. The new rule of law
demands from its subjects that they acknowledge the law. In return, the
law grants its subjects their protective rights, while allowing a law
permitting violence to be employed against them. These rights demand
that the new subjects acknowledge the rule of law, but in effect they
make it possible to abandon them to the violence of the law. Equality
before the law, contends Benjamin, is actually equality before the
violence of the law, as expressed by a famous sentence of Anatole
France’s, quoted by Benjamin: “Both the rich and poor are prohibited
equally from spending the night under the bridges.”63
61
      Id. at 203. Benjamin develops the concept of fate in a similar way in Fate and Character,
which was written in the same period.
62
      Id. at 250.
63
      Turning once again to my local context, let me add that when the Palestinians left within
the borders of the nascent Israeli Jewish state became its citizens they became subjects to the
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124                  C A R D O Z O LAW R E V I E W                 [Vol. 26:3
     Lawmaking violence determines the territory in which the rule of
law exists, eliminating any other law that previously existed or
attempted to be constituted there, and turning each person there into its
subjects. This monopoly over the rule of law characterizes modernism
and lies at the basis of the loss and degeneracy described by Benjamin.
The rule of law is territorially dependent; it requires clearcut borders.
By means of the distinctions that such boundaries generate between
inside and outside, they contribute to a homogenization of the inside,
allowing a single law to be promulgated in it. The constitution of law is
the constitution of a single rule of law, a single sovereignty.
Lawmaking violence also has another mode of existence, which
Benjamin disregards. This is the employment of violence involved in
the ongoing constitution of new laws. These laws differ from one
another in content, but simply by being added to the rulebook, they
always reaffirm the structure of relations of a single law, i.e., the rule of
law.
     Between these two elements of lawmaking violence there is a
connection, which can be described in terms of original and copy. The
law is not original in the sense that all subsequent laws stem from it.
The single law is also indifferent to the content of future laws. It
demands only one thing of them—that they reaffirm its authority. All
future laws are supposed to reproduce the authority of the single law,
maintaining their connection with it through its reaffirmation. The
single law is a sort of empty place, an absent origin, a vanishing point
that needs copies in order to go on existing as the original that shapes
the rest of the laws.64 Every reproduction or reaffirmation expresses the
transcendental standing of the rule of law and the fact that it, i.e.,
sovereignty, stays out of the game because it determines the rules. The
single rule of law cannot appear in any other way than by means of its
copies. More than in any other lawful act, the reaffirmation of the law
manifests itself most distinctively in the “violence employed over life
and death.”65 The death penalty, then, which legally inflicts lethal
violence on life, is the copy closest to the original, and in its
employment “the origins of law jut manifestly and fearsomely into
existence.”66 The relation between the original and its copies demands
law’s violence and protection in a discriminatory manner that has perpetuated since their status as
inferior citizens. The language of the law cannot express this more explicitly: “Freedom of
Occupation”:
      The purpose of this Basic Law is to protect freedom of occupation, in order to establish
      in a Basic Law the values of the State of Israel as a Jewish and democratic state. 3.
      Every Israel national or resident has the right to engage in any occupation, profession
      or trade. 4. There shall be no violation of freedom of occupation except by a law
      befitting the values of the State of Israel, enacted for a proper purpose, and to an extent
      no greater than is required, or by regulation enacted by virtue of express authorization
      in such law.
64
       This theme is discussed by Derrida, see, for example, Derrida, supra note 23.
65
       Walter Benjamin, One-Way Street, in 1 SELECTED WRITINGS, supra note 1, at 242.
66
       Id.
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2005]                THE LOSS OF CRITIQUE                                125
that the copy be faithful to the original. Utter faithfulness to the original
is demonstrated by the death penalty, in the framework of which the
lethal violence that underlies the law’s constitution is once again
employed. The law is the employment of “bloody power over mere life
for its own sake”67, whereas bare life serves as the medium on which the
law is inscribed.68
      In the employment of violence over life and death, what emerges is
“violence crowned by fate”69 rather than law acting on behalf of justice.
The law conceals the fact that it is anchored in fate and lacks
justification. To point to the continuity between mythic fate and modern
law, Benjamin asserts that the same bare life, which was the carrier of
guilt in mythic thought, is the carrier of the law in modernism. The law
is constituted on the basis of the primordial guilt of life itself: “Life is
guilty in some way, its punishment is death.”70 Guilt, which is
associated with the concept of bad luck and isolated from concepts of
innocence and happiness, belongs to the realm of fate, and in the
absence of a
     path of liberation [for insofar as something is fate, it is misfortune
     and guilt] . . . such an order cannot be religious . . . another sphere
     must therefore be sought in which misfortune and guilt alone carry
     weight, a balance on which bliss and innocence are found too light
     and float upward. This balance is the scale of law. The laws of fate–
     misfortune and guilt–are elevated by law to measures of the person.71
      Man becomes judge over matters of life and death, in the process
stripping himself of his humanity and turning himself into bare life,
which the law can use as a medium to appear in. The judge does not
sentence anyone to punishment but to guilt, taking from the primordial
guilt that hovers over all men and allocating a portion of it to the
defendant before him: “It is never man but only the life in him that it
strikes–the part involved in natural guilt and misfortune by virtue of
semblance.”72 All men are guilty at birth, like Adam and Eve after
eating from the tree of knowledge, and they are punished merely on
account of having entered the jurisdiction of the court: “The tree of
Knowledge stood in the garden of God not in order to dispense
information on good and evil, but as an emblem of judgment over the
questioner. This immense irony marks the mythic origin of law.”73
      The identification of lawful violence with mythic violence exposes
“its historical function, the destruction of which thus becomes
67
       Id. at 250.
68
       See Franz Kafka, In the Penal Colony, in FRANZ KAFKA, THE METAMORPHASIS, IN THE PENAL
COLONY, AND OTHER STORIES (Willa Muir & Edwin Muir trans., 1995) and Agamben’s discussion of
the relation between law and the life of Benjamin, in AGAMBEN, supra note 2, at 63-67.
69
       Walter Benjamin, One-Way Street, in 1 SELECTED WRITINGS, supra note 1, at 242.
70
       BENJAMIN, FRAGMENTS, supra note 21, at 62.
71
       Id.
72
       Walter Benjamin, Fate and Character, in 1 SELECTED WRITINGS, supra note 1, at 204.
73
       Id. at 72.
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126                    C A R D O Z O LAW R E V I E W              [Vol. 26:3
obligatory.”74 The task of the critic of violence, then, is not limited to
exposing the connection between the two forms of violence, but extends
to the operational sphere with the declared objective of destroying, or at
the least halting, mythic violence. In the second and final part of the
essay, Benjamin presents divine violence as an element that, simply put,
is capable of destroying mythic violence. Constitutive and law-
preserving violence, the two faces of mythic violence, now combine
into one side of the equation pitting mythic violence against divine
violence.      Mythic violence, which characterizes the order of
jurisprudence, is based on a relation between means and ends. This
violence is indifferent to purposes and only distinguishes between foul
means and fair, which justify the purposes whatever they may be.
Mythic violence is trapped in the vicious circle of justifying the end by
means of the means (positive jurisprudence) and justifying the means by
means of the end (natural law). Divine violence, on the other hand, is
not at all based on a relation between means and ends. This is singular
violence that does not operate according to any rules. Mythic violence
operates according to concepts of guilt and retribution, constitutes law
and accumulates power, and often threatens and sheds blood; whereas
divine violence creates objectives, destroys law, operates according to
concepts of expiation, strikes when necessary, and effaces, but without
any bloodshed.
      Some readers of Benjamin’s essay have interpreted this part in
dichotomous terms, contending that Benjamin clearly grants priority to
divine violence and in effect ascribes the employment of moral force to
it and it only.75 Such readings view mythic violence as the condition of
possibility of the political, and identify divine violence with the moral
element. They ostensibly lay bare two problems in Benjamin’s essay.
The first concerns the exclusive opposition between the moral and the
political, making the moral non-political in principle; the second
concerns the reduction or limitation of the moral to the sphere of the
divine, restricting man’s entry to moments of grace, if at all. In what
follows, I shall contend that the picture Benjamin proposes is much
more complicated than the opposition between mythic and divine, and I
shall reconstruct it on the basis of passages from the essay on violence
that these readers may have missed, and on Benjamin’s unfinished text,
“The Right to Use Force.”76
      First of all, I will argue that the opposition between the two forms
of violence (presented as different in every respect) does not mean that
the relationship between them is hierarchical. Benjamin does not
propose divine violence as the only replacement or as a suitable
74
       Id. at 249.
75
       See, e.g., Derrida, supra note 23; AGAMBEN, supra note 2; Adi Ophir, Between Sacrifice and
Abandonment: Introduction to Homo Sacer, in TECHNOLOGIES OF JUSTICE (Shai Lavie ed., 2003).
76
       See Walter Benjamin, The Right to Use Force, in BENJAMIN, 1 SELECTED WRITINGS, supra note
1, at 231.
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2005]                THE LOSS OF CRITIQUE                                127
replacement, as is, for mythic violence at any stage. He contends that
mythic violence has to be destroyed, but one should not ignore the
complex meaning that Benjamin ascribes to the concept of destruction.77
In the first place, destruction is a mode of usage: “Some people pass
things down to posterity, by making them untouchable and thus
conserving them; others pass on situations, by making them practicable
and thus liquidating them. The latter are called destructive.”78
      To understand this mode of usage, as well as the relation between
the two types of violence outlined by Benjamin, it is necessary to
understand the nature of Benjamin’s reversal of the relation between
violence and law. Violence is not a distinct resource in a particular
place awaiting its master or owner, but a relation between persons,
objects and the law. Violence can be defined as an “undifferentiated
mass,” to which form is given only by its different uses.79 Like all other
things, the law does not exist in and of itself, apart from violence, and
its connection with violence is not a matter of choice. The choice lies in
the mode of employment but not in the very use of violence. The law is
one mode of employing violence, which in modernism is associated
with the state and its purported monopoly on violence. The law of the
state cannot tolerate any competing law, i.e., any other authority to
engage in violence. However, as we have seen above, violence
transgresses the law and cannot be reduced to it. Violence is always-
already found everywhere. It is all encompassing, reaching into every
corner, and the law arrives in its wake, as if seeking to take violence
under its wing and to bend it to its rule. But lawful violence, whose
origin lies in fate, and which seeks to achieve a monopoly and
expropriate all other forms of violence, is never completely successful
in its mission. The reversal of the relation between violence and law
raises the question of who has access to violence and the right to use it.
“In order to use violence, the State needs law.”80 In other words, the
state conquers violence and establishes its monopoly over it by means
of law.
      As stated above, in the first place the conquest of violence by
means of law delineates the territory in which the state has a monopoly
on violence. Once it has achieved this monopoly, the state presents the
violence that it employs as justified and inevitable, for it is subject only
to the law, and thus every engagement in violence by the state becomes
lawful by default, whereas any other use of force is depicted by the state
as illegitimate violence that should be eliminated. In this manner the
state intrudes into more and more fields that were formerly conducted in
77
       For a fuller discussion of the concept of destruction in Benjamin, see the chapter on
tradition.
78
        See 2 SELECTED WRITINGS, supra note 1, at 541 (emphasis added).
79
       I rely here on Benjamin’s description of pure language, in the essay “On Language as Such
and on the Language of Man,” in 1 SELECTED WRITINGS, supra note 1, at 62, as an “undifferentiated
mass.”
80
       2 SELECTED WRITINGS, supra note 1, at 541.
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128                  C A R D O Z O LAW R E V I E W               [Vol. 26:3
different ways, free of the threat of the law and of the rule of the single
law. The law has an internal mechanism of self-preservation, which
turns it into an apparatus for accumulating territorial power that
responds with violence to any attempt to undermine its exclusive rule:
     It is quite wrong to assert that, in a constitutional state, the struggle
     for existence becomes a struggle for law. On the contrary,
     experience shows conclusively that the opposite is the case. And this
     is necessarily so, since the law’s concern with justice is only
     apparent, whereas in truth the law is concerned with self-
     preservation.81
The mechanism of self-preservation, as I have stated before, operates
according to the logic of reproduction, with each new copy seeking to
reaffirm the original and thus preserving it. It is also important to note
that with this relation between law and violence, justice is not a part of
the law’s operational mechanism and always appears as a sort of
afterthought, a minor adjunct to the more essential pair of concepts
—“rule of law.” In this context, justice is at most a brand name under
the cover of which the rule of law operates, as exemplified by the name
“High Court of Justice” or the logo of the law known as the scales of
justice. The action of the person sitting in judgment, of the person
weighing the scales before him, is always first subordinate to the law
and only later open to the considerations of justice, if at all.
      Benjamin assumes that not all the conflicts between men can be
resolved without violence, for which reason there is room for asking
whether there is any other kind of violence, which differs from lawful
violence. As stated above, the violence of natural law is based on the
assumption that justified ends justify the means for achieving them,
while the violence of positive law is based on the assumption that
justified means extend their justification to the ends to which they are
dedicated: “It is never reason that decides on the justification of the
means or the justice of the ends: violence crowned by fate decides on
the former, and God on the latter.”82 Mythic violence crowned by fate is
based on the concept of guilt and, writes Benjamin, “the absence of any
corresponding relation of the concept of fate to the concept that
necessarily accompanies that of guilt in the ethical sphere, namely that
of innocence.”83 Benjamin is searching for violence that would oppose
of mythic violence at every level: “Happiness and bliss are therefore no
more part of the sphere of fate than is innocence.”84 He presents these
qualities by means of the idea of divine violence. Benjamin posits a
sweeping opposition at various levels between the two kinds of
violence, divine violence being depicted as the instigator of justice:
     [T]he latter [divine violence] constitutes its antithesis in all respects.
81
     See Walter Benjamin, The Right to Use Force, in 1 SELECTED WRITINGS, supra note 1, at 232.
82
     Id.
83
     Walter Benjamin, Fate and Character, in 1 SELECTED WRITINGS, supra note 1, at 202.
84
     Id.
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2005]                      THE LOSS OF CRITIQUE                                          129
     If mythic violence is lawmaking, divine violence is law-destroying;
     if the former sets boundaries, the latter boundlessly destroys them; if
     mythic violence brings at once guilt and retribution, divine power
     only expiates; if the former threatens, the latter strikes; if the former
     is bloody, the latter is lethal without spilling blood.85
      In the second part of the essay, in which Benjamin strikes this
opposition between mythic and divine violence, divine violence is
posited only in the context of intervention in the face of sin: “divine
power is pure power over all life for the sake of the living.” 86 Here
divine violence is distinguished from mythic violence by two things. It
acts upon “all life” and not only upon “mere life,” and it does so on
behalf of the living and not only to preserve the rule of law. To explain
the distinction between the two kinds of violence, Benjamin resorts to
the distinction between the story of Niobe and the story of Korach. By
means of these two stories it may also be possible to clarify the
distinction he makes between “all life,” on whose behalf divine violence
functions, and “bare life,” the abandonment of which underlies the
constitution of mythic violence.87 Both stories involve violence to the
death. In the mythic story, Niobe, who provoked fate, is left alive to see
her children die. In the story of Korach, the lives of the sinners are
taken directly. In both cases life is taken, so the distinction cannot be
based on death itself. The same goes for the distinction between the
kinds of life. To answer the question how life is taken and what the
meaning is of the life this is taken requires changing our viewpoint and
looking towards the survivors. One should remember that the murder of
her children turned Niobe’s own life into “mere life,” of the violent
action, mythic or divine.
      The story of Niobe describes the ineradicable guilt felt by the
heroine after watching her children die. Niobe sees the force employed
by the gods against bare life, which is revealed to her when her children
are put to death. However, it is a life lacking any transcendent
dimension to take it beyond the primordial guilt ingrained in it. The
death of her children did not redeem Niobe of her sin; on the contrary, it
made her guilty of their deaths. In contradistinction, in the biblical
story, those murdered are Korach and his company, who sinned
themselves. Divine violence struck out at “all life” of those who were
exterminated, and their deaths redeemed them of guilt, that is, of the
law: “But in annihilating it also expiates, and a profound connection
between the lack of bloodshed and the expiatory character of this
violence is unmistakable.”88 All life, then, is life as a complex that
cannot be divided or reduced and always goes beyond “mere life,” at

85
      Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 249-50.
86
      Id. at 250.
87
      I rely here on Agamben’s interpretation of Benjamin in Homo Sacer, supra note 2, where
he depicts the fundamental relation between law and life as one of abandonment.
88
      Walter Benjamin, Fate and Character, in 1 SELECTED WRITINGS, supra note 1, at 250.
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130                   C A R D O Z O LAW R E V I E W               [Vol. 26:3
which mythic violence can strike.
      As soon as one looks more closely at the examples and
characteristics attributed by Benjamin to the two kinds of violence, the
distinctions between them break down completely and crude, prominent
mistakes rise to the surface in Benjamin’s interpretation of the two
stories. A few examples will suffice. In the biblical story of Korach,
divine violence is given to negotiation; it is wrong to say that it strikes
immediately and without distinction. Korach leaves behind him a band
of people in varying degrees of association and kinship to him who, like
Niobe, witness the act of violence and may lament the loss. Divine
violence, which does not shed blood according to Benjamin, conceals
the bodies from the visual field of the biblical photographer (“because
the expiatory power of violence is invisible to men”),89 but their
disappearance into the black hole which yawned open in the earth does
not erase the fact that the blood ceased to circulate inside them, though
it may not have spilled outside. This, of course, applies as well to later
techniques of putting people to death in gas chambers or crushing them
to death beneath bulldozers. Niobe’s punishment is the gods’ response
to her challenge to their absolute supremacy, upon which their rule of
law is based; Korach’s punishment is a response to his challenge to the
privileges of power granted to Moses and Aaron and Aaron’s sons,
whom God had appointed as his principal servants. In both cases the
execution of the punishment in public is part of the law’s mechanism of
self-preservation; again in both cases justice is not seen, but is merely a
prior assumption of the violent act.
      Such mistakes cannot be dismissed as mere “differences of
interpretation.” Most of them derive from the very comparison between
two different levels of violent action, which are exemplified by cases
that belong to the same level and do not really exemplify the
comparison. In the first part of the essay, where he discusses mythic
violence—but still without calling it by name—Benjamin deals with
various aspects of law: legislation, enforcement, punishment,
deterrence, etc. In other words, he deals with various dimensions of
managing and administering relations between people, i.e., the political
existence of human organization. By contrast, his discussion of mythic
violence is focused exclusively on its direct action in relation to sin, and
this also is ostensibly the axis around which the stories of Niobe and
Korach are supposed to revolve. However, what Benjamin’s discussion
of divine violence is actually focused on is its distinction from mythic
violence and the relations between them. At no stage does Benjamin
propose divine violence as a replacement for mythic violence. The
series of “interpretive” mistakes, which arises from the comparison
between the two kinds of violence, prevents divine violence from
becoming a concrete alternative to mythic violence and protects it from
89
     Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 252.
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2005]                THE LOSS OF CRITIQUE                             131
total eradication.
      Divine violence is a form of employment of violence that is not
subject to the law, but not necessarily subject to God either. This kind
of violence is not moved by right but by destruction. It is characterized
by being focused, direct and immediate intervention that is not part of a
plan of action. It is not a means to an end or part of a mechanism whose
operation extends from the past to the future, but the very manifestation
of the flashing present. As such, it appears as the complete opposite of
the law, which is a practice of deferment and suspension. This kind of
violence cannot be predicated on any right granted by law or limited by
the restraints imposed by law. It is completely outside the law. It is
always a way of responding to a concrete state of affairs, and it is
moved by destruction:
     It summons the word by its name, wrenches it destructively from its
     context, but precisely thereby calls it back to its origin . . . One must
     have . . . seen Klee’s New Angel (who preferred to free men by
     taking from them, rather than make them happy by giving to them) to
     understand a humanity that proves itself by destruction.90
Appropriation, loss, destruction—these all enable the appearance of the
singular, the original that is not subordinate to its copies. This is the
duty to exercise violence, a duty that is not anchored in law; the duty to
destroy the law in order to retrieve the singular. Benjamin, then, pits
duty against right.
      It is important to understand that divine violence is not the sole
agent of such interventionist action: “This divine power is not only
attested by religious tradition but is also found in present-day life.”91
Not only is God not the sole agent of violence of this kind, he’s the very
paradigm of an absence of agency. This is not the kind of violence that
demands a monopoly over the employment of violence, nor such that
has any desire to constitute itself as the law, but a singular kind of
violence in a place where the singular has been eradicated. This kind of
violence, which goes beyond the law and does not join a creative
tradition of constituting law, appears in several of Benjamin’s texts,
sometimes as a destructive practice, sometimes as a moral position:
     An exposition of this standpoint [the absence of contradiction
     between morality and violence and the existence of contradiction
     between morality and state] is one of the tasks of my moral
     philosophy, and in that connection the term “anarchism” may very
     well be used to describe a theory that denies a moral right not to
     force as such but to every human institution, community, or
     individuality that either claims a monopoly over it or in any way
     claims that right for itself from any point of view, even if only as a
     general principle, instead of respecting it in specific cases as a gift


90
     2 SELECTED WRITINGS, supra note 1, at 454-56.
91
     Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 250.
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132                        C A R D O Z O LAW R E V I E W                            [Vol. 26:3
      bestowed by a divine power, as absolute power.92
      The moral, then, does not contradict violence and its employment.
The moral, too, is a way of using violence. For the moral to act—to be
activated—it cannot renounce its access to violence, if only because its
action commences with violence. All the same, the moral—in
contradistinction to the state—does not demand a monopoly over
violence, for by doing so it would lose its morality. For Benjamin, the
moral has four essential characteristics: it is destructive, non-territorial
(or at least trans-territorial), a-monopolistic, and it is generated in
response to violent action. The moral does not act by dint of any plan,
nor does it seek to impose any program: “The destructive character sees
no image hovering before him. He has few needs, and the least of them
is to know what will replace what has been destroyed.”93 Taking this
into account, one cannot ascribe to Benjamin any political program to
replace the existing rule of law, but only a formulation of the moral
possibility. Moral action will always include the bypassing or
suspension of one of the elements of law, in the framework of what
Benjamin called “ethical anarchism.” This suspension may have at least
three forms: a suspension of territorial boundaries made manifest by a
cosmopolitan politics, of which humanitarian organizations are the most
distinctive present-day example: “Ethical anarchism is actually fraught
with contradictions as a political plan–that is, as a plan of action
concerned with the emergence of a new world order”;94 a suspension of
the law’s monopoly, as made manifest by killing in self-defense: “Thus
it was understood by Judaism, which expressly rejected the
condemnation of killing in self-defense”;95 and the suspension of the
social order in an attempt to destroy it, as made manifest by
revolutionary forces: “But if the existence of violence outside the law,
as pure immediate violence, is assured, this furnishes proof that
revolutionary violence, the highest manifestation of unalloyed violence
by man, is possible and shows by what means.”96
      To better understand the relation between the two forms of
violence, I will return once again to the analysis of the relation between
original and copy, the singular and the reproducible, and the place of
these pairs of concepts in Benjamin’s thinking. The singular and the
reproducible are two dimensions which define human existence. The
eradication of one of them, or the subordination of one to the other,
creates loss, degeneracy or decline, against which moral intervention is
required. Mythic violence has engorged both traditions, smothering
them both. The singular original has turned into a stable point, which
has been removed from the game because of its relation to the
92
      Id. at 233.
93
      2 SELECTED WRITINGS, supra note 17, at 541.
94
      Walter Benjamin, Fate and Character, in 1 SELECTED WRITINGS, supra note 1, at 233.
95
      Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 250.
96
      Id. at 252.
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2005]                 THE LOSS OF CRITIQUE                             133
reproduction that constantly reaffirms it, and thus has lost its singular
element. Reproduction has lost the element of transmission in it and
become stabilized as a result of its relation to the original. Because
mythic violence enfolds both dimensions of human existence, divine
violence cannot be its complete opposite—it can only reveal the places
where mythic violence has become sclerotic and smothered the dynamic
relation between the two dimensions. As opposed to mythic violence,
which takes the original out of the game and thus prevents any
possibility of having the singular appear, divine violence—or moral
action—is supposed to reintroduce the singular dimension into human
reality; and as opposed to the preservation of the law by means of its
copies, divine violence is supposed to posit destruction as a worthy
practice: “For in happiness all that is earthly seeks its downfall, and
only in happiness is its downfall destined to find it. . . . The spiritual
restitution in integrum, which introduces immortality, corresponds to a
worldly restitution that leads to an eternity of downfall.”97
      Just as the picture of divine violence in Benjamin is more complex
than seemed at first, so too it is impossible to ignore the complexity of
his attitude towards the violence of the law, which temporarily occupies
the other side of the equation. The violence of the law is imperialistic
by nature. It seeks to conquer every piece of territory, and yet it has not
managed to entirely conquer the political sphere. Benjamin refuses to
reduce the law to the political sphere, nor to reduce the political to the
law. He points to alternative forms of relation between people without
the employment of violence as a sanction, which are subject to a
nonviolent set of rules. This concerns three dimensions of the same
practice, which in general can be called the practice of transmission.
The first dimension he points to is language, in the framework of
customary procedures of communication; the second dimension, which
is distinctively associated with the first, is education; and the third,
arising from the entirety of Benjamin’s work, is tradition.
      As stated above, mythic violence has an imperialistic dimension.
In secular modernism, it seeks to conquer both divine violence and fate,
in which it has its origin: “the violence that present-day law is seeking
in all areas of activity to deny the individual appears really threatening,
and arouses even in defeat the sympathy of the masses against the
law.”98 In mass events—from rock concerts, through demonstrations, to
large-scale catastrophes—the masses intervene of their own accord,
they regulate their actions and responses: “Divine violence may
manifest itself in true war exactly as it does in the crowd’s divine
judgment on a criminal.”99 The masses always elude the sum of all their
97
     Walter Benjamin, Fragments Thelogico-politic, in WALTER BENJAMIN—SELECTED WRITINGS,
VOLUME 2 304 (Hakibbutz Hameuchad trans., 1996) (in Hebrew).
98
     Walter Benjamin, Critique of Violence, in 1 SELECTED WRITINGS, supra note 1, at 239.
99
     Id. at 252. For the masses, see Benjamin’s remark in The Work of Art in the Age of its
Technological Reproducibility, in 3 SELECTED WRITINGS, supra note 1, at 113.
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134                  C A R D O Z O LAW R E V I E W             [Vol. 26:3
parts; it follows that despite their subordination and subjection to the
law, the masses themselves elude the law, and like fate go on smiling:
“In his films, Chaplin appeals both to the most international and the
most revolutionary emotion of the masses: their laughter.”100




100
      Walter Benjamin, XXXXXX, in 2 SELECTED WRITINGS, supra note 1, at 224.

								
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