Menke, Christopher. “Law and Violence.” Law and Literature 22.1 (2010): 1-17.
The law presents itself as a beneficial action in which certain codes of conduct are created in order to generate peaceful outcomes. Menke, however, contends that the law is actually categorically violent in nature. He writes that “There is no law […] without violence.” Law may end the violence that systems like revenge and the “state of nature” tend to promote, he notes, but the law “continues it in a different way” (2). Menke argues that the law, in many cases, commits the same violence as revenge “in practice” by threatening individuals with its method of judging, through its promotion of “self-destructive self-condemnation” (6). The law causes individuals to evaluate the choices that they have made, in coherence with the laws that have been established, and to hold themselves accountable (judge themselves) under the tyranny of the written law. Menke states “law de-subjectivizes precisely because it demands that the perpetrator judge himself.” “One stays imprisoned forever,” he notes, “by the self-sentencing to which one is cursed by law; precisely because it has been one’s own deed, nothing can pardon it” (7). Menke cites Walter Benjamin — who maintains that “Lawmaking is power making, and, to that extent, an immediate manifestation of violence” — to suggest that political leaders and legislatures create laws to keep citizens restrained by legal judgments and accusations (10). The law is a categorical system of violence: the “fateful violence of law consists in the acts of legal judgment and punishment being transparent for no other purpose than the sheer preservation of law’s power to judge and punish” (11). The law is a perpetual system in which the common public continues to judge themselves and make themselves susceptible to the threats that the law provides should they break the law. In sum, Menke writes, “the law must take sides, must sentence and punish” (12).
Menke’s argument raises numerous questions. If the law serves as a curse for those it applies to, is there any way to break this curse? If the law serves to govern the people, but only through threats and self-destructive and self-inflicted blame, can we truly call this “governing”? Or is this more of a system of degradation in an effort to continue a comfortable political order that will maintain the power established by the legislatures and law makers? The law is normally recognized as establishing boundaries and regulations in order to keep the common public safe. However, if the law works primarily through violence, it is hard to see it as primarily beneficial. The law works because citizens are fearful of the consequences should they get caught breaking a law. Is there a method with which laws might be created and worded that might be less violent, that would result in a system that does rely on self-destructive self-condemnation to maintain order?