Among all the forms of violence permitted by both natural law and positive law there is not one that is free of the gravely problematic nature, already indicated, of all legal violence. Since, however, every conceivable solution to human problems, not to speak of deliverance from the confines of all the world-historical conditions of existence obtaining hitherto, remains impossible if violence is totally excluded in principle, the question necessarily arises as to other kinds of violence than all those envisaged by legal theory. It is at the same time the question of the truth of the basic dogma common to both theories: just ends can be attained by justified means, justified means used for just ends. How would it be, therefore, if all the violence imposed by fate, using justified means, were of itself in irreconcilable conflict with just ends, and if at the same time a different kind of violence came into view that certainly could be either the justified or the unjustified means to those ends, but was not related to them as means at all but in some different way? This would throw light on the curious and at first discouraging discovery of the ultimate insolubility of all legal problems (which in its hopelessness is perhaps comparable only to the possibility of conclusive pronouncements on “right” and “wrong” in evolving languages). For it is never reason that decides on the justification of means and the justness of ends, but fate-imposed violence on the former and God on the latter. And insight that is uncommon only because of the stubborn prevailing habit of conceiving those just ends as ends of a possible law, that is, not only as generally valid (which follows analytically from the nature of justice), but also as capable of generalization, which, as could be shown, contradicts the nature of justice. For ends that for one situation are just, universally acceptable, and valid, are so for no other situation, no matter how similar it may be in other respects. The nonmediate function of violence at issue here is illustrated by everyday experience. As regards man, he is impelled by anger, for example, to the most visible outbursts of a violence that is not related as a means to a preconceived end. It is not a means but a manifestation. Moreover, this violence has thoroughly objective manifestations in which it can be subjected to criticism. These are to be found, most significantly, above all in myth.
Mythical violence in its archetypal form is a mere manifestation of the gods. Not a means to their ends, scarcely a manifestation of their will, but first of all a manifestation of their existence. The legend of Niobe contains an outstanding example of this. True, it might appear that the action of Apollo and Artemis is only a punishment. But their violence establishes a law far more than it punishes for the infringement of one already existing. Niobe’s arrogance calls down fate upon itself not because her arrogance offends against the law but because it challenges fate—to a fight in which fate must triumph, and can bring to light a law only in its triumph. How little such divine violence was to the ancients the law-preserving violence of punishment is shown by the heroic legends in which the hero—for example, Prometheus—challenges fate with dignified courage, fights it with varying fortunes, and is not left by the legend without hope of one day bringing a new law to men. It is really this hero and the legal violence of the myth native to him that the public tries to picture even now in admiring the miscreant. Violence therefore bursts upon Niobe from the uncertain, ambiguous sphere of fate. It is not actually destructive. Although it brings a cruel death to Niobe’s children, it stops short of the life of their mother, whom it leaves behind, more guilty than before through the death of the children, both as an eternally mute bearer of guilt and as a boundary stone on the frontier between men and gods. If this immediate violence in mythical manifestations proves closely related, indeed identical to lawmaking violence, it reflects a problematic light on lawmaking violence, insofar as the latter was characterized above, in the account of military violence, as merely a mediate violence. At the same time this connection promises further to illuminate fate, which in all cases underlies legal violence, and to conclude in broad outline the critique of the latter. For the function of violence in lawmaking is twofold, in the sense that lawmaking pursues as its end, with violence as the means, what is to be established as law, but at the moment of instatement does not dismiss violence; rather, at this very moment of lawmaking, it specifically establishes as law not an end unalloyed by violence, but one necessarily and intimately bound to it, under the title of power. Lawmaking is power making, and, to that extent, an immediate manifestation of violence. Justice is the principle of all divine end making, power the principle of all mythical lawmaking.
An application of the latter that has immense consequences is to be found in constitutional law. For in this sphere the establishing of frontiers, the task of “peace” after all the wars of the mythical age, is the primal phenomenon of all lawmaking violence. Here we see most clearly that power, more than the most extravagant gain in property, is what is guaranteed by all lawmaking violence. Where frontiers are decided the adversary is not simply annihilated; indeed, he is accorded rights even when the victor’s superiority in power is complete. And these are, in a demonically ambiguous way, “equal” rights: for both parties to the treaty it is the same line that may not be crossed. Here appears, in a terribly primitive form, the same mythical ambiguity of laws that may not be “infringed” to which Anatole France refers satirically when he says, “Poor and rich are equally forbidden to spend the night under the bridges.” It also appears that Sorel touches not merely on a cultural-historical but also on a metaphysical truth in surmising that in the beginning all right was the prerogative of the kings or the nobles—in short, of the mighty; and that, mutatis mutandis, it will remain so as long as it exists. For from the point of view of violence, which alone can guarantee law, there is no equality, but at the most equally great violence. The act of fixing frontiers, however, is also significant for an understanding of law in another respect. Laws and unmarked frontiers remain, at least in primeval times, unwritten laws. A man can unwittingly infringe upon them and thus incur retribution. For each intervention of law that is provoked by an offense against the unwritten and unknown law is called, in contradistinction to punishment, retribution. But however unluckily it may befall its unsuspecting victim, its occurrence is, in the understanding of the law, not chance, but fate showing itself once again in its deliberate ambiguity. Hermann Cohen, in a brief reflection on the ancients’ conception of fate, has spoken of the “inescapable realization” that it is “fate’s orders themselves that seem to cause and bring about this infringement, this offense.”* To this spirit of law even the modern principle that ignorance of a law is not protection against punishment testifies, just as the struggle over written law in the early period of the ancient Greek communities is to be understood as a rebellion against the spirit of mythical statutes.
Far from inaugurating a purer sphere, the mythical manifestation of immediate violence shows itself fundamentally identical with all legal violence, and turns suspicion concerning the latter into certainty of the perniciousness of its historical function, the destruction of which thus becomes obligatory. This very task of destruction poses again, in the last resort, the question of a pure immediate violence that might be able to call a halt to mythical violence. Just as in all spheres God opposes myth, mythical violence is confronted by the divine. And the latter constitutes its antithesis in all respects. 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. The legend of Niobe may be confronted, as an example of this violence, with God’s judgment on the company of Korah. It strikes privileged Levites, strikes them without warning, without threat, and does not stop short of annihilation. But in annihilating it also expiates, and a deep connection between the lack of bloodshed and the expiatory character of this violence is unmistakable. For blood is the symbol of mere life
. The dissolution of legal violence stems, as cannot be shown in detail here, from the guilt of more natural life, which consigns the living, innocent and unhappy, to a retribution that “expiates” the guilt of mere life—and doubtless also purifies the guilty, not of guilt, however, but of law. For with mere life the rule of law over the living ceases. Mythical violence is bloody power over mere life for its own sake, divine violence pure power over all life for the sake of the living. The first demands sacrifice, the second accepts it.
This divine power is attested not only by religious tradition but is also found in present-day life in at least one sanctioned manifestation. The educative power, which in its perfected form stands outside the law, is one of its manifestations. These are defined, therefore, not by miracles directly performed by God, but by the expiating moment in them that strikes without bloodshed and, finally, by the absence of all lawmaking. To this extent it is justifiable to call this violence, too, annihilating; but it is so only relatively, with regard to goods, right, life, and suchlike, never absolutely, with regard to the soul of the living. The premise of such an extension of pure or divine power is sure to provoke, particularly today, the most violent reactions, and to be countered by the argument that taken to its logical conclusion it confers on men even lethal power against one another. This, however, cannot be conceded. For the question “May I kill?” meets its irreducible answer in the commandment “Thou shalt not kill.” This commandment precedes the deed, just as God was “preventing” the deed. But just as it may not be fear of punishment that enforces obedience, the injunction becomes inapplicable, incommensurable once the deed is accomplished. No judgment of the deed can be derived from the commandment. And so neither the divine judgment, nor the grounds for this judgment, can be known in advance. Those who base a condemnation of all violent killing of one person by another on the commandment are therefore mistaken. It exists not as a criterion of judgment, but as a guideline for the actions of persons or communities who have to wrestle with it in solitude and, in exceptional cases, to take on themselves the responsibility of ignoring it. Thus it was understood by Judaism, which expressly rejected the condemnation of killing in self-defense. But those thinkers who take the opposed view refer to a more distant theorem, on which they possibly propose to base even the commandment itself. This is the doctrine of the sanctity of life, which they either apply to all animal or even vegetable life, or limit to human life. Their argumentation, exemplified in an extreme case by the revolutionary killing of the oppressor, runs as follows: “If I do not kill I shall never establish the world dominion of justice . . . that is the argument of the intelligent terrorist. . . . We, however, profess that higher even than the happiness and justice of existence stands existence itself.”* As certainly as this last proposition is false, indeed ignoble, it shows the necessity of seeking the reason for the commandment no longer in what the deed does to the victim, but in what it does to God and the doer. The proposition that existence stands higher than a just existence is false and ignominious, if existence is to mean nothing other than mere life—and it has this meaning in the argument referred to. It contains a mighty truth, however, if existence, or, better, life (words whose ambiguity is readily dispelled, analogously to that of freedom, when they are referred to two distinct spheres), means the irreducible, total condition that is “man”; if the proposition is intended to mean that the nonexistence of man is something more terrible than the (admittedly subordinate) not-yet-attained condition of the just man. To this ambiguity the proposition quoted above owes its plausibility. Man cannot, at any price, be said to coincide with the mere life in him, no more than with any other of his conditions and qualities, not even with the uniqueness of his bodily person. However sacred man is (or that life in him that is identically present in earthly life, death, and afterlife), there is no sacredness in his condition, in his bodily life vulnerable to injury by his fellow men. What, then, distinguishes it essentially from the life of animals and plants? And even if these were sacred, they could not be so by virtue only of being alive, of being in life. It might be well worthwhile to track down the origin of the dogma of the sacredness of life. Perhaps, indeed probably, it is relatively recent, the last mistaken attempt of the weakened Western tradition to seek the saint it has lost in cosmological impenetrability. (The antiquity of all religious commandments against murder is no counterargument, because these are based on other ideas than the modern theorem.) Finally, this idea of man’s sacredness gives grounds for reflection that what is here pronounced sacred was according to ancient mythical thought the marked bearer of guilt: life itself.
The critique of violence is the philosophy of its history—the “philosophy” of this history, because only the idea of its development makes possible a critical, discriminating, and decisive approach to its temporal data. A gaze directed only at what is close at hand can at most perceive a dialectical rising and falling in the lawmaking and law-preserving formations of violence. The law governing their oscillation rests on the circumstance that all law-preserving violence, in its duration, indirectly weakens the lawmaking violence represented by it, through the suppression of hostile counter-violence. (Various symptoms of this have been referred to in the course of this study.) This lasts until either new forces or those earlier suppressed triumph over the hitherto lawmaking violence and thus found a new law, destined in its turn to decay. On the breaking of this cycle maintained by mythical forms of law, on the suspension of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded. If the rule of myth is broken occasionally in the present age, the coming age is not so unimaginably remote that an attack on law is altogether futile. But if the existence of violence outside the law, as pure immediate violence, is assured, this furnishes the proof that revolutionary violence, the highest manifestation of unalloyed violence by man, is possible, and by what means. Less possible and also less urgent for humankind, however, is to decide when unalloyed violence has been realized in particular cases. For only mythical violence, not divine, will be recognizable as such with certainty, unless it be in incomparable effects, because the expiatory power of violence is not visible to men. Once again all the eternal forms are open to pure divine violence, which myth bastardized with law. It may manifest itself in a true war exactly as in the divine judgment of the multitude on a criminal. But all mythical, lawmaking violence, which we may call executive, is pernicious. Pernicious, too, is the law-preserving, administrative violence that serves it. Divine violence, which is the sign and seal but never the means of sacred execution, may be called sovereign violence.
The Destructive Character
It could happen to someone looking back over his life that he realized that almost all the deeper obligations he had endured in its course originated in people on whose “destructive character” everyone was agreed. He would stumble on this fact one day, perhaps by chance, and the heavier the blow it deals him, the better are his chances of picturing the destructive character.
Reflections Page 34