ON JUSTIFYING VIOLENCE IN NATURAL LAW AND POSITIVE LAW

Walter Benjamin, Reflections: Essays, Aphorisms, Autobio-graphical Writings, edited and with an introduction by Peter Demetz , translated from the German by Edmund Jephcott (New York: Schocken Books, 1986) (From "Critique of Violence": "The task of a critique of violence can be summarized as that of expounding its relation to law and justice. For a cause, however, effective, becomes violent, in the precise sense of the word, only when it bears on moral issues. The sphere of these issues is defined by the concepts of law and justice. With regard to the first of these, it is clear that the most elementary relationship within any legal system is that of ends to means, and, further, that violence can first be sought only in the realm of means, not ends. For if violence is a means, a criterion for criticizing it might seem immediately available, It imposes itself in the question whether violence, in a given case, is a means to a just or an unjust end. A critique of it would then be implied in a system of just ends. This,however, is not so. For what such a system, assuming it to be secure against all doubt, would contain is not a criterion for violence itself as a principle, but, rather, the criterion for cases of its use. The question would remain open whether violence, as a principle, could be a moral means even to just ends. To resolve this question a more exact criterion is needed, which would discriminate within the sphere of means themselves, without regard for the ends they serve." "The exclusion of this more precise critical approach is perhaps the predominant feature of a main current of legal philosophy: natural law. It perceives in the use of violent means to just ends no greater problem than man sees in his 'right' to move his body in the direction of a desired goal. According to this view (for which the terrorism in the French Revolution provided an ideological foundation), violence is a product of nature, as it were a raw material, the use of which is in no way problematical, unless force is misused for unjust ends. If, corroding to the theory of state of natural law, people give up all their violence for the sake of the state, this is done on the assumption . . . that the individual, before the conclusion of this rational contract, has de jure the right to use at will the violence that is de facto at his disposal. Perhaps these views have been recently rekindled by Darwin's biology, which, a throughly dogmatic manner, regards violence as the only original means, besides natural selection, appropriate to all the vital ends of nature. Popular Darwinistic philosophy has often shown how short a step it is from this dogma of natural history to the still cruder one of legal philosophy, which holds that violence that is, almost alone, appropriate to natural ends is thereby also legal." "This thesis of natural law that regards violence as a natural datum is diametrically opposed to that of positive law, which sees violence as a product of history. If natural law can judge all existing law only in criticizing its ends, so positive law can judge all evolving law on y in criticizing its means. If justice is the criterion of ends, legality is that of means. Notwithstanding this antithesis, hover, both schools meet in their common basic dogma: just ends can be attained by justified means, justified means used for just ends. natural law attempts, by the justness of the ends, to 'justify' the means, positive law to 'guarantee' the justness of the ends through the justification of the means, This antinomy would prove insoluble if the common dogmatic assumption were false, if justified means on the one hand and just ends of the other were in irreconcilable conflict, No insight into this problem could be gained, however, until the circular argument had been broken, and mutually independent criteria both of just ends and of justified means were established." Id. at 277 277-278.).