Law’s Violence

In legal studies the use of social thoughts are marginal, although AI has the potential to replace millions of lawyers just guiding through the jungle of laws and jurisprudence especially if several languages are involved (fiscal rules). Only with the eruption of major crises like police violence we start referring back to social and political thought and theories that enlighten the relationship of law, legislation and the social spheres. There is a huge, mainly American, literature on “law’s violence” even beyond the issue of capital punishment, the most obvious form of law’s violence (Sarat and Kearns, 1995). Basic elements of the relationship of law and violence follow from the notion of enforceability of law. Force is a constituent part of law, whether we like it or not, much like Derrida stated decades ago. Walter Benjamin and Albert Camus, both have contributed substantially towards our realisation that law is intrinsically linked to violence.
Linked to political theories, we have the conservative and liberal doctrines that see legitimate violence of the state as part of the normal organisation of statehood. The humanist tradition stresses the function of law as community-building as well as creating meaning, joint objectives and shared vision through law. In daily politics governments refer to one or the other doctrines as they see fit.
Sarat and Kearns (1995, p.8) also point to the tendency in legal studies to refer to singular cases and singular judgements, “discrete acts of its agents” and institutions rather than the overall picture of the violence of law. With respect to violence of the police the authors refer back to Jerome Skolnick, “Justice without trial”(1967), which in 2023 we link to the police violence in France. Police men provoking violence, execute their personal vision of justice and without a chance for a trial of their victim. The 60s are back on streets in Paris. The violence of law is visible for millions as the ratcheting up of power in favour of police to apply more violence in prosecuting “delinquents”. This had recently been voted by the French parliament with a conservative and liberal majority (LeMonde 2023-7-2 p.). The notion “Gewaltspirale”, a spiralling-up of violence, seems to be a fair description of what we currently witness in France.
Violence is embedded in words, uses of language and not only acts. Even in the field of representation and representative democracy, violence is present. Who represents or decides about life and pain for a fatally ill person? Why are persons of 14, 15, 16, 17 years of age not represented in parliaments, if others are deciding on their compulsory education, prison sentences and poverty relief.
At times it is necessary to take a step back and refresh our memories of the “pain-imposing, death-dealing acts” (Sarat and Kearns, 1995, p.10) of law. The abundant presence of violence of law in religious narratives is, however, another element worth analysing as part of the history of ideas at another time.  (Image: Extrait de Frans Snijders, La chienne et ses petits 17th century)