On August 8, 1914, Walter Benjamin suffered a horrific loss. His close friends Fritz Heinle and Rika Seligson committed suicide in protest against the First World War. Reflecting on their death, Benjamin wrote a letter to his childhood friend, the future composer Ernst Schoen. In it, he spoke of the need for a transformed radicalism in the face of the growing European catastrophe. “No one is equal to this situation,” he lamented.
During the period immediately leading up to the First World War, social and political withdrawal characterized Benjamin’s intellectual life. Turning inward, he occupied himself with an “invisible radicalism.” In these early writings, the young Benjamin was heavily influenced by his mentor, the educational reformer and philosopher Gustav Wyneken.
Following his teacher, Benjamin argued that self-transformation based on cultivating the “deepest solitude” would lead to social transformation. However, Wyneken’s call in November 1914 for German youth to join the war effort in defense of the “fatherland” dampened the young Benjamin’s faith in his teacher’s ideas.
By 1920, Benjamin had turned toward a proto-Marxist and revolutionary political radicalism. His famous 1921 essay “The Critique of Violence” is a testament to this shift in his thinking.
Critics have often dismissed Benjamin’s engagement with Marxism because of his use of theological language. However, this religious language is not an alternative to a radical political theory: rather, it is a means of articulating it. A hundred years after its publication, the essay still holds insights for a Marxist critique of the violence used to uphold the law.
Contextualizing “The Critique of Violence”
In January 1920, police officers in Berlin opened fire on communist protesters in front of the Reichstag, killing forty-two people. This was one of several events that undermined working-class support for the government led by the Social Democrats (SPD), a party which had come to power at the end of the war.
Then, in March 1920, general Walther von Lüttwitz ordered a group of right-wing paramilitary Freikorps into Berlin. They overthrew the SPD-led government and installed Wolfgang Kapp, a civil servant and far-right nationalist, as the new chancellor. The event became known as the Kapp Putsch.
Aware they could not rely on the army, SPD officials fled Berlin. The German trade unions called a general strike which brought Kapp’s government to its knees in four days. On March 17, Kapp and Lüttwitz abandoned the city.
In the face of this humiliating loss of power, the SPD was unable to effectively regain its reputation. For their part, the German Communists (KPD) were incapable of seizing power from the enfeebled Social Democrats and decisively ending the threat posed by the far right. As Marxist historian Arthur Rosenberg wrote: “The Kapp Putsch really ended with the defeat, not of the army, but of the working classes.”
The far-right putsch and the failure of the left-wing parties heavily influenced Benjamin’s classic essay. Most accounts of Benjamin’s life assume that he developed his commitment to Marxism following his affair with the Latvian actress and political radical Asja Lācis, or after reading Georg Lukács’s 1923 work History and Class Consciousness. This ignores the clear Marxist orientation of Benjamin’s analysis in “The Critique of Violence.”
While the power of a general strike to bring down Kapp’s short-lived government had impressed Benjamin, the German left’s inability to capitalize on this victory deeply troubled him. The central problem of Benjamin’s essay is to show that the general strike can establish an alternative form of political authority.
Natural and Positive Law
Despite their claims to be rational and democratic, capitalist legal systems often exercise their authority arbitrarily. Consider, for example, the split-second judgement a police officer must make before an arrest. Based on this judgement, the police officer must decide whether they suspect a crime has been committed and act accordingly. In practice, this means that law enforcement wields an extra-juridical power.
The law empowers police to use violent means to apprehend their target, regardless of their innocence. Police are, however, both enactors and interpreters of the law. This ambiguity means that the violence they commit is both legal and extralegal. For Benjamin, the arbitrariness bound up with any exercise of the law ensures that there is violence at the heart of capitalist legal systems.
To explain this, Benjamin begins his essay by discussing two supposedly distinct traditions of legal theorizing: natural and positive theories of law. Natural theories of law argue that there is a concept of justice applicable to all humans which they believe they can ultimately derive from nature. By contrast, positive philosophies of law typically hold that justice and law are human creations.
The English liberal philosopher — and defender of slavery — John Locke is perhaps the most influential exponent of the natural law tradition. In his Second Treatise on Government, he argues that even the rule of a monarch cannot supervene natural law. While for Locke it is legal institutions that implement natural laws, these laws have an authority greater than anything that society could confer.
Positive philosophies of law, on the other hand, which are often associated with the Scottish conservative philosopher David Hume, argue that the law has no natural or divine basis. Legal authority is, at best, a social convention and agreement.
Both approaches provide, according to Benjamin, different ways of justifying violence. Natural law may justify the necessity of property rights by asserting that ownership over land, things, or even people is a divine right. Based on this assumption, the natural law theorist can, for example, sanction the use of the death penalty against thieves, because their crime violates an authority above anything social.
Positive law theorists defend the legitimacy of the law by arguing that it has its origin in our shared social conventions. Defenders of positive law can therefore accuse its violators of attacking a set of values shared by the whole community. It is, according to this understanding, justified for the state to impose violence on criminals because, through their actions, they have attacked the social fabric itself.
These seemingly opposed traditions have in common the fact that they are legalistic attempts to justify the use of cruel and inhumane violence. By drawing out this similarity, Benjamin hopes to help us to understand the relationship between violence and the law.
Positive theories distinguish between sanctioned and unsanctioned violence. Their recognition of the socially produced nature of the law means that positive legal theorists are constantly worried that any violation of the law could serve to undermine it. If, for instance, individuals resorted to extra-juridical violence to redress harms done against them, this would undermine the law itself, because it would reveal that people could achieve justice outside of it.
Implicitly, proponents of the positive law tradition do not justify the ultimate value of legal authority through its ability to promote justice or peace. Rather, for these theorists, law exists for its own sake. Opposition to the law is therefore a concern to this tradition because it undermines the monopoly on violence which the defenders of the law can wield. As Benjamin writes:
The law’s interest in a monopoly of violence vis-a-vis individuals is not explained by the intention of preserving legal ends but, rather, by that of preserving law itself; that violence, when not in the hands of the law, threatens it not by the ends that it may pursue but by its mere existence outside the law.
Law-Making and Law-Preserving Violence
Central to Benjamin’s argument is the distinction between law-making and law-preserving violence. Military violence is a prime example of a law-making form of violence. Conquest can overthrow an old social and legal order and establish a new one in its wake. Might makes legal right.
Might, however, also preserves right. Law-preserving violence is the “use of violence as a means of legal ends.” The police use of state-sanctioned violence to uphold the law and the effectiveness of this violence gives the established legal order the appearance of permanence.
Law-preserving violence is the inevitable response to attempts to break the law or found a new legal order. Law-preserving violence need not take the form of an actual punishment. Rather, the threat of violence always hangs over anyone seeking to undermine the law. This is what Benjamin means when he refers to the retributory power of the state as fate.
In principle, it’s possible for a lawbreaker to escape justice. But it’s impossible to escape the threat of justice. Being brought to justice is therefore the fate of a criminal. Like the heroes of Greek tragedies, it is inevitable that they will meet their fate — what is uncertain is when or how this will happen.
The Kapp Putsch is a perfect example of the clash between law-creating and law-preserving violence. While extra-juridical violence threatens the law, no new legal order can be set up without it. The coup threatened the legal order of the Weimar Republic, but it failed to establish a new, more repressive order because it couldn’t muster enough violence to overcome a general strike. The consequence of this failure was that the plotters succumbed to their fate: punishment at the hands of the state.
For Benjamin, comparing legal violence to fate highlights the mythic character of the law. Continuing with the metaphor, he argues that the death penalty is the ultimate expression of the power the law has over the fate of those subject to it. The purpose of the death penalty is, Benjamin writes,
…not to punish the infringement of law but to establish new law. For in the exercise of violence over life and death more than in any other legal act law reaffirms itself.
Overcoming Mythic Violence
Despite the secular appearance of the modern legal system, it preserves, through its reliance on despotic violence, the ancient mythological idea of fate. Benjamin’s aim in his essay is not merely to describe this mythological structure, but to show how we can overcome it. In order to do this, the author turns to revolutionary politics.
Through the example of the general strike, Benjamin finds a popular challenge to the state’s monopoly on violence. This may seem a strange claim to make, since strikes are usually understood as a passive refusal to act.
Benjamin notes, however, that by withdrawing their labor power, workers engage in a kind of extortion. In this sense, strikes pose a fundamental threat to the concept of a legal order built on commodity production. Consequently, the law only permits specific strikes within certain conditions.
In the final section of the essay, Benjamin suggests that a general strike provides a model for a form of violence that breaks with the ancient model of fate. The law will never sanction a general strike because it challenges the whole system and is therefore implicitly (and sometimes explicitly) revolutionary. General strikes represent a threat to the law as such, in exactly the same way that conventionally understood violence does.
Benjamin calls this alternative divine violence. Through this admittedly theological concept, Benjamin conceptualizes a form of political action which does not seek to replace one unjust system of legal coercion with another:
If mythical violence is lawmaking, divine violence is law-destroying; if the former sets boundaries, the latter boundlessly destroys them; if mythical 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.
Admittedly, the dramatic metaphorical language that Benjamin uses to elucidate his idea renders it somewhat ambiguous. Despite this ambiguity, the point that he wishes to make is clear. Coercion serves to maintain capitalist legal systems and divine violence seeks to overturn this state of affairs.
Benjamin’s idea of divine violence is difficult to understand if only conceived of solely in theological terms. If, however, we remember that the general strike against the Kapp Putsch inspired Benjamin’s essay, the insights of his tract are more easily decipherable. Although the general strike had the power to defeat the putsch, the parties of the German left did not trust the autonomous power of the working class to establish a new, socialist legal order.
Only momentarily defeated, the police and the army held on to their monopoly on legal violence and restored a form of legal authority based on the arbitrary use of force. The divine violence of a general strike was, for Benjamin, the best hope of the working class against the law of the property-owning minority.
Although Benjamin does not provide us with a way of conceiving of an alternative form of law that is not dependent on oppression, his essay makes clear the arbitrary violence exercised in the name of justice and the wholesale transformation of law and violence required to overcome the capitalist legal order. As Marx and Engels argued in the Communist Manifesto, the proletariat has the power to overthrow “all existing social conditions,” and, according to Benjamin, create a new legal order that isn’t founded on the arbitrariness of mythic justice. Contemporary socialists would do well to trust in the revolutionary capacities of the working class.