Critiquing the violence of Guantanamo: resisting the monopolization of the future.

• Jurisdiction: Australia
• Author: Whyte, Jess
• Date: 22 September 2005

In his Critique of Violence Walter Benjamin attests to the impossibility of subordinating power to law by demonstrating that law is both founded and preserved by violence. Law therefore relies on the state's monopolization of the use of violence, a monopolization which stems from the acknowledgement that violence contains the possibility of modifying or founding legal orders. When individuals use violence outside the law, then, the state is not purely concerned with their individual ends, but with the very means they have used and the possibilities inherent in these means to destabilize the entire existing legal order. This possibility ensures the necessity for law to strip individuals of all violence, even that which is used purely for their own individual gain. What the state fears in each individual use of violence is the law-making power inherent in it and the possibility that the state will be forced to relinquish its monopoly on this power. In this article I want to reflect on Benjamin's Critique of Violence and on this necessity for law to strip individuals of their ability to use violence to see if it might help us understand something of the existence of Guantanamo Bay. To do this, I will trace some aspects of the relation between law, violence and the American project. More specifically, I will reflect on the US doctrine of pre-emption--which I believe is fundamental to an understanding not only of the war on terror but also of Guantanamo Bay--and argue that what is at stake in pre-emption is a particular form of law-founding violence that aims to monopolize the use of violence in the future. In trying to understand Guantanamo Bay as what Giorgio Agamben has referred to as a localization of a state of exception, (1) I believe it is necessary to examine the temporality, and the vision of history and of the future, that this space seeks to enable.

In the Critique of Violence, Benjamin distinguishes between two types of violence as means, which he calls law-founding and law-preserving violence. Law-founding violence refers to the originary violence that establishes a new law, and is thus bound by the requirement that it 'prove itself in battle', overcoming all hostile counter-violence in order to achieve a stable situation that can then be codified in law. Law-preserving violence in contrast relies on precisely the stability and monopolization of the use of violence that law-founding violence brings about. Through founding violence we see the establishment of a legal order which then relies for its preservation on the representation of this originary violence. To represent founding violence in preserving violence, however, is to degrade that founding violence, Benjamin tells us, as 'all law-preserving violence in its duration indirectly weakens the lawmaking violence represented by it through the suppression of hostile counter-violence'. (2)

The truth of this can be grasped with reference to the institution of capital punishment which, in Benjamin's view, exists 'not to punish the infringement of law but to establish new law'. (3) In capital punishment it would appear that the preservation of law occurs not through the representation of positing but through its repetition--through a re-foundation. What the recourse to capital punishment signals--and this explains its 'disproportionate' use in 'primitive' legal systems--is the fact that the state has not yet successfully monopolized the use of law-making violence, and thus is forced constantly to repeat its own violent foundation and to remain aware of the violence represented in its legal institutions. In contrast, it is in those situations in which the state has successfully monopolized the use of violence to such an extent that it need no longer rely on the right to kill--that is, in situations where it has successfully suppressed all hostile counter-violence--that it is most vulnerable to the reappearance of this counter-violence. This is so because in such apparently pacified social conditions the state loses sight of its own violent origins and of the violence that lies latent in its legal institutions. 'This lasts,' says Benjamin, 'until either new forces or those earlier suppressed triumph over the hitherto law-making violence and thus found a new law, destined in its turn to decay'. (4)

This, as Werner Hamacher points out, is precisely the dialectical oscillation between preservation and positing that all legal violence is condemned to in advance. (5) When founding violence is represented in preserving violence it immediately begins to decay, until such time as this decay opens a space for suppressed counter-violences to assert themselves in founding a new law. In this history every act of positing and every law that is established and then preserved is subject to a more powerful law--a law of 'historical change and internal structural transformation' perceived on the model of a dialectical oscillation between law-founding and law-preserving violence--in which the degradation of one is bound up with the continuation of the other. This is perhaps most clearly revealed in military action that, while aiming at natural ends, like pillage or the annexing of lands, is also a tool to legal ends as it establishes the 'normal' situation and the monopoly of violence that enables the establishment of a new law. When this force dissipates, however, it is the military which is called upon to preserve the law by suppressing that counter-violence which threatens to produce an emergency situation. Importantly, for Benjamin it is with the establishment of law that we see the establishment of guilt; as in the ancient proverb, 'there is no guilt without rule', (6) guilt does not precede law but is its product. Guilt is originarily a juridical concept, a concept which, as Agamben points out, inscribes natural life in the realm of the law. (7) 'Law condemns,' Benjamin argues, 'not to punishment, but to guilt'. (8) Thus the abolition of law would also bring about the expiation of guilt.

If, in the Critique of Violence, guilt is conceptualized as a creation of law, what can we make of the supposed guilt of those in Guantanamo Bay, a guilt that exists without relation to any legal process? A recent case in the High Court of Australia...