The possibility of military law rests on exactly the same objective contradiction in the legal situation as does that of strike law, that is to say, on the fact that legal subjects sanction violence whose ends remain for the sanctioners natural ends, and can therefore in a crisis come into conflict with their own legal or natural ends. Admittedly, military violence is in the first place used quite directly, as predatory violence, toward its ends. Yet it is very striking that even—or, rather, precisely—in primitive conditions that know hardly the beginnings of constitutional relations, and even in cases where the victor has established himself in invulnerable possession, a peace ceremony is entirely necessary. Indeed, the word “peace,” in the sense in which it is the correlative to the word “war” (for there is also a quite different meaning, similarly unmetaphorical and political, the one used by Kant in talking of “Eternal Peace”), denotes this a priori, necessary sanctioning, regardless of all other legal conditions, of every victory. This sanction consists precisely in recognizing the new conditions as a new “law,” quite regardless of whether they need de facto any guarantee of their continuation. If, therefore, conclusions can be drawn from military violence, as being primordial and paradigmatic of all violence used for natural ends, there is inherent in all such violence a lawmaking character. We shall return later to the implications of this insight. It explains the above-mentioned tendency of modern law to divest the individual, at least as a legal subject, of all violence, even that directed only to natural ends. In the great criminal this violence confronts the law with the threat of declaring a new law, a threat that even today, despite its impotence, in important instances horrifies the public as it did in primeval times. The state, however, fears this violence simply for its lawmaking character, being obliged to acknowledge it as lawmaking whenever external powers force it to concede them the right to conduct warfare, and classes the right to strike.
If in the last war the critique of military violence was the starting point for a passionate critique of violence in general—which taught at least one thing, that violence is no longer exercised and tolerated naively—nevertheless, violence was not only subject to criticism for its lawmaking character, but was also judged, perhaps more annihilatingly, for another of its functions. For a duality in the function of violence is characteristic of militarism, which could only come into being through general conscription. Militarism is the compulsory, universal use of violence as a means to the ends of the state. This compulsory use of violence has recently been scrutinized as closely as, or still more closely than, the use of violence itself. In it violence shows itself in a function quite different from its simple application for natural ends. It consists in the use of violence as a means of legal ends. For the subordination of citizens to laws—in the present case, to the law of general conscription—is a legal end. If that first function of violence is called the lawmaking function, this second will be called the law-preserving function. Since conscription is a case of law-preserving violence that is not in principle distinguished from others, a really effective critique of it is far less easy than the declamations of pacifists and activists suggest. Rather, such a critique coincides 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. Nor, of course—unless one is prepared to proclaim a quite childish anarchism—is it achieved by refusing to acknowledge any constraint toward persons and declaring “What pleases is permitted.” Such a maxim merely excludes reflection on the moral and historical spheres, and thereby on any meaning in action, and beyond this on any meaning in reality itself, which cannot be constituted if “action” is removed from its sphere. More important is the fact that even the appeal, so frequently attempted, to the categorical imperative, with its doubtless incontestable minimum program—act in such a way that at all times you use humanity both in your person and in the person of all others as an end, and never merely as a means—is in itself inadequate for such a critique.* For positive law, if conscious of its roots, will certainly claim to acknowledge and promote the interest of mankind in the person of each individual. It sees this interest in the representation and preservation of an order imposed by fate. While this view, which claims to preserve law in its very basis, cannot escape criticism, nevertheless all attacks that are made merely in the name of a formless “freedom” without being able to specify this higher order of freedom, remain impotent against it. And most impotent of all when, instead of attacking the legal system root and branch, they impugn particular laws or legal practices that the law, of course, takes under the protection of its power, which resides in the fact that there is only one fate and that what exists, and in particular what threatens, belongs inviolably to its order. For law-preserving violence is a threatening violence. And its threat is not intended as the deterrent that uninformed liberal theorists interpret it to be. A deterrent in the exact sense would require a certainty that contradicts the nature of a threat and is not attained by any law, since there is always hope of eluding its arm. This makes it all the more threatening, like fate, on which depends whether the criminal is apprehended. The deepest purpose of the uncertainty of the legal threat will emerge from the later consideration of the sphere of fate in which it originates. There is a useful pointer to it in the sphere of punishments. Among them, since the validity of positive law has been called into question, capital punishment has provoked more criticism than all others. However superficial the arguments may in most cases have been, their motives were and are rooted in principle. The opponents of these critics felt, perhaps without knowing why and probably involuntarily, that an attack on capital punishment assails, not legal measure, not laws, but law itself in its origin. For if violence, violence crowned by fate, is the origin of law, then it may be readily supposed that where the highest violence, that over life and death, occurs in the legal system, the origins of law jut manifestly and fearsomely into existence. In agreement with this is the fact that the death penalty in primitive legal systems is imposed even for such crimes as offenses against property, to which it seems quite out of “proportion.” Its purpose is 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. But in this very violence something rotten in law is revealed, above all to a finer sensibility, 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.
In a far more unnatural combination than in the death penalty, in a kind of spectral mixture, these two forms of violence are present in another institution of the modern state, the police. True, this is violence for legal ends (in the right of disposition), but with the simultaneous authority to decide these ends itself within wide limits (in the right of decree). The ignominy of such an authority, which is felt by few simply because its ordinances suffice only seldom for the crudest acts, but are therefore allowed to rampage all the more blindly in the most vulnerable areas and against thinkers, from whom the state is not protected by law—this ignominy lies in the fact that in this authority the separation of lawmaking and law-preserving violence is suspended. If the first is required to prove its worth in victory, the second is subject to the restriction that it may not set itself new ends. Police violence is emancipated from both conditions. It is lawmaking, for its characteristic function is not the promulgation of laws but the assertion of legal claims for any decree, and law-preserving, because it is at the disposal of these ends. The assertion that the ends of police violence are always identical or even connected to those of general law is entirely untrue. Rather, the “law” of the police really marks the point at which the state, whether from impotence or because of the immanent connections within any legal system, can no longer guarantee through the l
egal system the empirical ends that it desires at any price to attain. Therefore the police intervene “for security reasons” in countless cases where no clear legal situation exists, when they are not merely, without the slightest relation to legal ends, accompanying the citizen as a brutal encumbrance through a life regulated by ordinances, or simply supervising him. Unlike law, which acknowledges in the “decision” determined by place and time a metaphysical category that gives it a claim to critical evaluation, a consideration of the police institution encounters nothing essential at all. Its power is formless, like its nowhere tangible, all-pervasive, ghostly presence in the life of civilized states. And 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.
All violence as a means is either lawmaking or law-preserving. If it lays claim to neither of these predicates, it forfeits all validity. It follows, however, that all violence as a means, even in the most favorable case, is implicated in the problematic nature of law itself. And if the importance of these problems cannot be assessed with certainty at this stage of the investigation, law nevertheless appears, from what has been said, in so ambiguous a moral light that the question poses itself whether there are no other than violent means for regulating conflicting human interests. We are above all obligated to note that a totally nonviolent resolution of conflicts can never lead to a legal contract. For the latter, however peacefully it may have been entered into by the parties, leads finally to possible violence. It confers on both parties the right to take recourse to violence in some form against the other, should he break the agreement. Not only that; like the outcome, the origin of every contract also points toward violence. It need not be directly present in it as lawmaking violence, but is represented in it insofar as the power that guarantees a legal contract is in turn of violent origin even if violence is not introduced into the contract itself. 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. They offer the familiar, woeful spectacle because they have not remained conscious of the revolutionary forces to which they owe their existence. Accordingly, in Germany in particular, the last manifestation of such forces bore no fruit for parliaments. They lack the sense that a lawmaking violence is represented by themselves; no wonder that they cannot achieve decrees worthy of this violence, but cultivate in compromise a supposedly nonviolent manner of dealing with political affairs. This remains, however, a “product situated within the mentality of violence, no matter how it may disdain all open violence, because the effort toward compromise is motivated not internally but from outside, by the opposing effort, because no compromise, however freely accepted, is conceivable without a compulsive character. ‘It would be better otherwise’ is the underlying feeling in every compromise.”* Significantly, the decay of parliaments has perhaps alienated as many minds from the ideal of a nonviolent resolution of political conflicts as were attracted to it by the war. The pacifists are confronted by the Bolsheviks and Syndicalists. These have effected an annihilating and on the whole apt critique of present-day parliaments. Nevertheless, however desirable and gratifying a flourishing parliament might be by comparison, a discussion of means of political agreement that are in principle nonviolent cannot be concerned with parliamentarianism. For what parliament achieves in vital affairs can only be those legal decrees that in their origin and outcome are attended by violence.
Is any nonviolent resolution of conflict possible? Without doubt. The relationships of private persons are full of examples of this. Nonviolent agreement is possible wherever a civilized outlook allows the use of unalloyed means of agreement. Legal and illegal means of every kind that are all the same violent may be confronted with nonviolent ones as unalloyed means. Courtesy, sympathy, peaceableness, trust, and whatever else might here be mentioned, are their subjective preconditions. Their objective manifestation, however, is determined by the law (the enormous scope of which cannot be discussed here) that unalloyed means are never those of direct, but always those of indirect solutions. They therefore never apply directly to the resolution of conflict between man and man, but only to matters concerning objects. The sphere of nonviolent means opens up in the realm of human conflicts relating to goods. For this reason technique in the broadest sense of the word is their most particular area. Its profoundest example is perhaps the conference, considered as a technique of civil agreement. For in it not only is nonviolent agreement possible, but also the exclusion of violence in principle is quite explicitly demonstrable by one significant factor: there is no sanction for lying. Probably no legislation on earth originally stipulated such a sanction. This makes clear that there is a sphere of human agreement that is nonviolent to the extent that it is wholly inaccessible to violence: the proper sphere of “understanding,” language. Only late and in a peculiar process of decay has it been penetrated by legal violence in the penalty placed on fraud. For whereas the legal system at its origin, trusting to its victorious power, is content to defeat lawbreaking wherever it happens to show itself, and deception, having itself no trace of power about it, was, on the principle ius civile vigilantibus scriptum est, exempt from punishment in Roman and ancient Germanic law, the law of a later period, lacking confidence in its own violence, no longer felt itself a match for that of all others. Rather, fear of the latter and mistrust of itself indicate its declining vitality. It begins to set itself ends, with the intention of sparing law-preserving violence more taxing manifestations. It turns to fraud, therefore, not out of moral considerations, but for fear of the violence that it might unleash in the defrauded party. Since such fear conflicts with the violent nature of law derived from its origins, such ends are inappropriate to the justified means of law. They reflect not only the decay of its own sphere, but also a diminution of pure means. For, in prohibiting fraud, law restricts the use of wholly nonviolent means because they could produce reactive violence. This tendency of law has also played a part in the concession of the right to strike, which contradicts the interests of the state. It grants this right because it forestalls violent actions the state is afraid to oppose. Did not workers previously resort at once to sabotage and set fire to factories? To induce men to reconcile their interests peacefully without involving the legal system, there is, in the end, apart from all virtues, one effective motive that often enough puts into the most reluctant hands pure instead of violent means; it is the fear of mutual disadvantages that threaten to arise from violent confrontation, whatever the outcome might be. Such motives are clearly visible in countless cases of conflict of interests between private persons. It is different when classes and nations are in conflict, since the higher orders that threaten to overwhelm equally victor and vanquished are hidden from the feelings of most, and from the intelligence of almost all. Space does not here permit me to trace such higher orders and the common interests corresponding to them, which constitute the most enduring motive for a policy of pure means.* We can therefore only point to pure means in politics as analogous to those which govern peaceful intercourse between private persons.
As regards class struggles, in them strike must under certain conditions be seen as a pure means. Two essentially different kinds of strike, the possibilities of which have already been considered, must now be more fully characterized. Sorel has the credit—from political, rather than purely theoretical, considerations—of having first distinguished them. He contrasts them as the political and the proletarian general strike. They are also antithetical in their relation to violence. Of the partisans of the former he says: “The strengthening of state power is the basis of their conceptions; in their present organizations the politicians (viz., the moderat
e socialists) are already preparing the ground for a strong centralized and disciplined power that will be impervious to criticism from the opposition, capable of imposing silence, and of issuing its mendacious decrees.”* “The political general strike demonstrates how the state will lose none of its strength, how power is transferred from the privileged to the privileged, how the mass of producers will change their masters.” In contrast to this political general strike (which incidentally seems to have been summed up by the abortive German revolution), the proletarian general strike sets itself the sole task of destroying state power. It “nullifies all the ideological consequences of every possible social policy; its partisans see even the most popular reforms as bourgeois.” “This general strike clearly announces its indifference toward material gain through conquest by declaring its intention to abolish the state; the state was really . . . the basis of the existence of the ruling group, who in all their enterprises benefit from the burdens borne by the public.” While the first form of interruption of work is violent since it causes only an external modification of labor conditions, the second, as a pure means, is nonviolent. For it takes place not in readiness to resume work following external concessions and this or that modification to working conditions, but in the determination to resume only a wholly transformed work, no longer enforced by the state, an upheaval that this kind of strike not so much causes as consummates. For this reason, the first of these undertakings is lawmaking but the second anarchistic. Taking up occasional statements by Marx, Sorel rejects every kind of program, of Utopia—in a word, of lawmaking—for the revolutionary movement: “With the general strike all these fine things disappear; the revolution appears as a clear, simple revolt, and no place is reserved either for the sociologists or for the elegant amateurs of social reforms or for the intellectuals who have made it their profession to think for the proletariat.” Against this deep, moral, and genuinely revolutionary conception, no objection can stand that seeks, on grounds of its possibly catastrophic consequences, to brand such a general strike as violent. Even if it can rightly be said that the modern economy, seen as a whole, resembles much less a machine that stands idle when abandoned by its stoker than a beast that goes berserk as soon as its tamer turns his back, nevertheless the violence of an action can be assessed no more from its effects than from its ends, but only from the law of its means. State power, of course, which has eyes only for effects, opposes precisely this kind of strike for its alleged violence, as distinct from partial strikes which are for the most part actually extortionate. The extent to which such a rigorous conception of the general strike as such is capable of diminishing the incidence of actual violence in revolutions, Sorel has explained with highly ingenious arguments. By contrast, an outstanding example of violent omission, more immoral and cruder than the political general strike, akin to a blockade, is the strike by doctors, such as several German cities have seen. In this is revealed at its most repellent an unscrupulous use of violence that is positively depraved in a professional class that for years, without the slightest attempts at resistance, “secured death its prey,” and then at the first opportunity abandoned life of its own free will. More clearly than in recent class struggles, the means of nonviolent agreement have developed in thousands of years of the history of states. Only occasionally does the task of diplomats in their transactions consist of modifications to legal systems. Fundamentally they have, entirely on the analogy of agreement between private persons, to resolve conflicts case by case, in the names of their states, peacefully and without contracts. A delicate task that is more robustly performed by referees, but a method of solution that in principle is above that of the referee because it is beyond all legal systems, and therefore beyond violence. Accordingly, like the intercourse of private persons, that of diplomats has engendered its own forms and virtues, which were not always mere formalities, even though they have become so.
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