Nov 3, 2016: Social Justice: Moving Past Tolerance
MAC Rotunda (M-240)
(Below is the text I read today at the Social Justice Conference at Kingsborough Community College)
Sovereign Violence and the Ethics/Esthetics of Resistance
(Bruno Gullì, Assistant Professor, Philosophy)
I want to start with a quote from Walter Benjamin. In an essay called Critique of Violence, he says that “though the police may, in particulars, everywhere appear the same, it cannot finally be denied that their spirit is less devastating where they represent, in absolute monarchy, the power of a ruler in which legislative and executive supremacy are united, than in democracies where their existence, elevated by no such relation, bears witness to the greatest conceivable degeneration of violence” (287). In this essay, Benjamin looks at the twofold function of violence as lawmaking and law-preserving (law enforcement). He says that police violence is “emancipated from both conditions” (286), in the sense that it really subsumes (or includes) both. Indeed, Benjamin says, “the ‘law’ of the police really marks the point at which the state, whether from impotence or because of the immanent connection within any legal system, can no longer guarantee through the legal system” (287) its promise of security and order. At that point, you have the power of the police, which is “formless, [just] like its nowhere tangible, all-pervasive, ghostly presence in the life of civilized states” (ibid; brackets added). This is especially true of the society of surveillance and control in which we live today: the society of war and the prison industrial complex (a new documentary shows that 80% of those held at Rikers Island have not been convicted of a crime), of police brutality and solitary confinement. Hence, this power, this violence, is all too real, and it is supreme. The police thus become the sovereign police.
In a short essay called “Sovereign Police,” Giorgio Agamben writes, “The sovereigns who willingly agreed to present themselves as cops or executioners, in fact, now show in the end their original proximity to the criminal” (2000: 107). Indeed, as he says, “There is no head of state on Earth today who, in this sense, is not virtually a criminal” (ibid; emphasis in the original). By taking on the character of the police, the sovereign shows its proximity to the criminal. Yet, the police do the same as they take on the character of the sovereign. In fact, what is close to the figure of ‘the criminal’ is precisely the figure of the sovereign. They are both outside the law, or they are at the limit, inside and outside at the same time. As Carl Schmitt says, the sovereign is a borderline and paradoxical figure.
This situation is explained by Agamben as follows, “the police are perhaps the place where the proximity and the almost constitutive exchange between violence and right that characterizes the figure of the sovereign is shown more nakedly and clearly than anywhere else” (104). This is a reference to Benjamin’s description of the twofold function of violence as lawmaking and law-preserving. That the substance of law, right as law, is violence, is something that Thomas Hobbes, long before Benjamin and from a completely different point of view, had already demonstrated. In this sense, the law is nothing but institutionalized violence. For Hobbes, the law is the result of the process of transferring to the sovereign the originary violence of the state of nature, where there is a war of everyone against everyone. Indeed, in Hobbes, the word ‘right’ names that original violence in a rather direct and distinct way. In the state of nature, a state of war, “every man has a right to everything, even to one another’s body” (Hobbes 1994: 80; my emphasis). This is the type of right transferred –by “a voluntary act,” Hobbes holds (82)—to the sovereign. The sovereign will establish the law; in fact, the sovereign will be the law, namely, he will be (usually it’s a ‘he’) the common, coercive power that keeps everybody “in awe” (76) “by the terror” of punishment (89). I hope it is clear at this point how the nature and substance of the law are nothing but violence, or the threat of violence. If we follow Hobbes, we see that the law allegedly finds its legitimacy in the voluntariness of the act whereby the sovereign receives everybody’s right, power, and freedom. However, it is easy to show that this is pure fiction and that consequently there is no legitimacy whatsoever, but only the never-abandoned possibility of going back, if need be, to raw violence and terror.
The ability to resort to raw violence and terror is inscribed in the character of both the sovereign and the police, and it characterizes the sovereign police in an eminent way. This is also the proximity between the figures of the sovereign, the police, and the sovereign police on the one hand and the criminal on the other. It is the character of the outlaw, in a literal sense. The sovereign has to have the ability to step outside the law in order to suspend, change, or reassert it. This is the state of exception, or state of emergency. This is what typically happens in declaring war, throughout the course of war, in situations of strong institutionalization (such as the prison, capital punishment), and in cases of police brutality. The state of exception can become permanent, as is the case today both at the global level and within each country, each city.
Today, despite the crisis of sovereignty at the level of the nation-state (i.e., the Westphalian model of sovereignty), we are witnessing a newly arising form of it, precisely in the sense of Agamben’s notion of the sovereign police. But sovereign police means not only that policing now happens on a global scale (i.e., that even heads of state can be arrested, removed, and executed, as highlighted by Agamben, or more importantly, that entire populations can be kept under a regime of surveillance and control), it also means that the police everywhere retain the character of the sovereign. They act according to the modality of absolute and supreme power typical of the sovereign. Basically, they act as if they had power of life and death over their subjects, namely, those who are subjected to them.
Perhaps the emergence of the sovereign police is based on the assumption that there is an immediate and undisputable identity between law and justice, and it is this relation that Walter Benjamin examines in Critique of Violence. The relation between law and justice is a very problematic issue. For simplicity’s sake, let me say that there are two ways of understanding it. One is to reduce all justice to the law, as Hobbes does, for instance. In one of the most important passages in Leviathan, Hobbes says, “Where there is no common power, there is no law; where no law, no injustice” (1994: 78). For Hobbes, in the natural condition of humankind, in the “war of every man against every man, this also is consequent: that nothing can be unjust” (ibid.). Contrary to this, the second position points out the existence of a sense, a horizon, of justice over and beyond the law. This is what we usually mean today when we speak about social justice; and this is what in the past has been named in various ways: divine justice, natural law, moral law, and so on. Both positions are problematic. The former because it basically says that if there is no law, anything goes, and everything is permissible. Not only that, it also rules out the notion of an unjust law. The latter is problematic because it raises the difficult question of how and where to locate this sphere of justice beyond the law.
In the context of this discussion, there is little to add to the first position, the reduction of all justice to the law. I have already said enough about Hobbes, who is certainly one of the most representative thinkers in that sense. Instead, I want to say more about the second position, the notion that there is a sphere of justice beyond the law, a sphere which is really independent from the law. This is certainly the notion we find in Kant’s moral philosophy, the distinction between ethics and the law, the autonomy of what he calls the moral law. Yet, the split between ethics and the law, the problematic relation of law and justice, can be found in many works and authors, ancient and modern. What is important is that this opens up the question of the ethics (but also the politics and esthetics) of resistance; in particular, what in modernity is known as civil disobedience. I want to say a few words about this on the basis of Sophocles’ Antigone and Martin Luther King’s “Letter from a Birmingham Jail.”
In Sophocles’ tragedy, Antigone, Oedipus’ daughter and half-sister, sets about burying her brother Polyneices in contravention of the emergency decree of Creon, new king of Thebes and Antigone’s uncle. Antigone’s two brothers, and Oedipus sons and half-brothers, Polyneices and Eteoclês, simultaneously killed one another as they were fighting against one another. Creon decides that Eteoclês, who was fighting on his side, will receive all the proper burial and so on, while Polyneices, who was fighting against him in the civil war that followed Oedipus’ death, will be left unburied, his corpse to be destroyed by birds and dogs. Eteoclês is to be honored as a hero; Polyneices banned even in death, as a criminal, terrorist (we might say today), and traitor. Creon also establishes that whoever dares contravene his order will be executed by stoning. Failing to enlist her sister Ismene (also Oedipus’ daughter and half-sister) in her cause, Antigone goes ahead and buries her brother. Ismene, on the other hand, takes a very legalistic position: We can’t do this because we can’t go against the law. But for Antigone, Creon’s law is null and void compared to what she calls the unwritten, unfailing law of the gods below. She defies Creon and his state of exception: Who are you, a mere human being, how dare you go against the unchanging law of justice? In an act of ethical, political, and esthetic resistance –an early act of civil disobedience, Antigone defies the sovereign. To be sure, she is executed, but then everything turns against Creon and the city of Thebes, destroyed by misery and the plague. Creon himself becomes a miserable man by the end of the tragedy.
The tragedy highlights the rift between justice and the law as well as the violence which is constitutive of the law. At the end of Critique of Violence, after highlighting once again the “pernicious” (1978: 300) dimension of both lawmaking and law-preserving violence, Benjamin suggests the notion of revolutionary or divine violence, which is law-destroying. Contrary to the former type of violence which is “bloody,” divine violence is “lethal without spilling blood” (297). I bracket the fact that Benjamin also calls divine violence “sovereign violence” (these are the very final words in his essay). In fact, I have been using the expression “sovereign violence” in a completely different way. What Benjamin means is that, if we apply his analysis and description to Sophocles’ tragedy, Antigone’s decision, her act of defiance, is ‘sovereign’ in its own way. Yet, due to my problematization of the concept of sovereignty, I here part with Benjamin’s account.
What is important, rather, is to grasp how Antigone’s position and action call into question the stability and self-assurance (and self-referentiality) of the law. In “Letter from a Birmingham Jail,” Martin Luther King addresses the distinction between ethics (or justice, social justice) and the law by saying that “there are two types of laws: there are just laws, and there are unjust laws” (1992: 89). He continues, “I would agree with St. Augustine that ‘An unjust law is no law at all” (ibid.). For Augustine, a law is just or unjust depending on whether it coincides with the moral law. Any law, just or unjust, is human-made; however, the moral law, with which any human-made law may coincide or not, is “eternal and natural” (ibid.). King’s philosophical reference is not Kant but St. Augustine, and he also refers to St. Thomas Aquinas. King says, “Any law that uplifts human personality is just. Any law that degrades human personality is unjust” (ibid.). From this it is clear that his description of the just or unjust law is not simply moral in character, but it is existential (political and esthetic as well). King applies his distinction, between the power to uplift and the power to degrade, to the segregation laws of his time, which is the issue he deals with in his Letter, and he shows with logical and moral (but also political and esthetic: existential) rigor why they are wrong. We can apply the same distinction to today’s laws and practices based on racial profiling, such as stop-and-frisk or broken windows policing. King says, “All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority” (ibid.). This false sense of superiority is, once again, typical of the sovereign police. Yet, all is the result of the construction of a false, ideological conception of the world, which happens through and by means of violence. This is what informs King’s view of right and wrong, namely, the distinction between the true and the false; or, to use Spinoza’s language, the distinction between adequate and inadequate ideas. In this sense, King introduces the crucial distinction in his work between obedience and disobedience. One has to obey what is “morally right” and disobey what is “morally wrong.” To oppress is morally wrong; to resist oppression is morally right. It is in this sense that King could “urge” people to disobey what was wrong, something that his critics called incitement to violence. Yet, with an explicit reference to civil disobedience and to Socrates who, King says, practiced it, he shows that the origin of violence lies in the system of injustice that makes acts of resistance necessary. Indeed, for King, the fact that resistance may precipitate violence is not a good reason to call it off. He says that “it is immoral to urge an individual to withdraw his efforts to gain his basic constitutional rights because the quest precipitates violence” (92). We would here have to deal with the work of Frantz Fanon and his concept of counterviolence, namely, the acts of resistance that precisely counter violence. Yet, what I have said above speaking of Antigone and of Benjamin’s concept of divine violence may guide our thought. To go back to Martin Luther King and thus conclude, the essential point is that “[o]ppressed people cannot remain oppressed forever” (93).
Agamben, Giorgio. 2000. “Sovereign Police.” In Means without Ends: Notes on Politics. Translated by Vincenzo Binetti and Cesare Casarino. Minneapolis: University of Minnesota Press.
Benjamin, Walter. 1978. “Critique of Violence.” In Reflections. Translated by Edmund Jephcott, 277-300. New York: Schocken Books.
Hobbes, Thomas. 1994. Leviathan. Indianapolis: Hackett.
King, Martin Luther, Jr. 1992. “Letter from a Birmingham Jail (1963).” In I Have a Dream: Writings and Speeches That Changed the World, edited by James M. Washington. New York: HarperOne.
Sophocles. 2001. Antigone. Translated by Paul Woodruff. Indianapolis: Hackett.