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