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  • On Violence, Politics, and the Law
  • Peg Birmingham

If each age has its particular point of entry to the central political problems of authority, power, and obligation, then the present age has its point of access in the relation among violence, politics, and the law. Ours is an age that has largely replaced its theological underpinnings with political revolutions, while at the same time it has grown skeptical of natural right and natural law claims. If the political order is no longer founded in the theological and is unable to appeal to natural right or natural law, is the political then inescapably rooted in violence? In other words, if founded through violence with no claim to right, is the political order rooted ultimately in the authority of the sword? If this is the case, then how is it possible to think legitimate political power as well as political obligation? Still further, in the face of what seems to be an inescapable “founding violence,” how is it possible to argue for a normative foundation of political authority and law? These questions reveal that it is not an accident that political thought today has turned once again to Thomas Hobbes as well as to Hobbes’s best reader, Carl Schmitt. Certainly the question of the relation among violence, power, and law occupies both thinkers. Thus, while this essay will be largely concerned with Hannah Arendt’s answer (vis-à-vis Walter Benjamin) to the question of the relation among violence, politics, and law, I want to begin by turning to Hobbes and Carl Schmitt, who, I submit, give us three [End Page 1] claims concerning the political that must be taken seriously when taking up the problem of the relation among violence, politics, and the law today. Without question these are three claims that Arendt herself took seriously when thinking this relation, and it is not too much to speculate that for her the works of Hobbes and Schmitt were always close at hand.

The first two claims to be taken seriously are Schmitt’s, although we certainly are able to find them at work in Hobbes’s political thought. First, we must take seriously Schmitt’s claim that all political concepts of the modern state are secularized theological concepts and this because the sovereign exception inherent to the law is analogous to the miracle in theology.1 Second, following from this, we must take seriously Schmitt’s claim that politics is a borderline concept. As is well known, for Schmitt the sovereign is he who decides on the exception. The sovereign, Schmitt argues, “produces and guarantees the situation in its totality. He has the monopoly over this last decision.”2 In the face of a threat to the very existence of the state, the sovereign decision suspends the law in the name of “public safety and order.”3 Thus, at the center of the sovereign decision is an antinomic reality in which the sovereign has unlimited authority to suspend the laws in order to reestablish the conditions of their effectiveness. At such moments, the sovereign has what Hobbes calls “the right to everything,” a right to all means, including state-sponsored violence, to counter all threats against it. The sovereign decision, without ground and without justification—a deus ex machina—is a decision “in the true sense,” insofar as it marks a cut between the legal and the extralegal.4 This is for Schmitt the “miracle” in politics and marks the inescapable theological moment of the political. And because sovereignty is always established upon this border of the legal and extralegal, state sovereignty is established by and through its borders. Politics is therefore a borderline concept.

Hobbes gives us the third claim to be taken seriously: political institutions and laws arise out of hostility and violence. Here we should recall that Hobbes’s first law of nature, “seek peace and follow it,” is a rational and conditional response to the war of all against all. The condition of the first law of nature is the right to return to the state of violence if my enemy, now a tentative friend, should decide not to continue to seek peace. With the institution of...

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