An Insurrection of “Law and Order”?
The Cycle of Law-Preserving and Law-Making Violence

J. Brent Crosson

Photo by Tom Gainor on Unsplash.

This article is part of our “Chaos at the Capitol: Law and Religion Perspectives on Democracy’s Dark Day” series.
If you’d like to check out other articles in this series, click here.

We are shocked. Morally outraged. How could a U.S. president, touting “law and order,” incite a blatant attack on “American democracy” and “the rule of law”? Commentators decry such hypocrisy, stating the obvious contradiction between U.S. constitutional law and violent coups. My contention in this essay is that no such contradiction exists. Rather, “the rule of law” and extralegal coups (of the right-wing variety) are two sides of a U.S.-minted coin. What we witnessed on January 6th, 2021 was an impasse between two kinds of violence: neofascist law making and neoliberal law-preserving violence. I suggest that the anatomy of this impasse (and the delineation of a third alternative) can be found in a particularly challenging essay, “Critique of Violence,” written exactly a century ago by one of the greatest political theorists of the twentieth century, Walter Benjamin. 

It is important to remember that Benjamin, then at the height of his interest in Jewish mysticism, wrote this essay in the midst of the Weimar Republic — the political context that saw the rise of the Nazi party. More than one contemporary political theorist has asserted that the recent coup attempt in D.C. marks the United States’ entrance into its own Weimar era, with others comparing the current situation to the burning of the Reichstag that brought the Nazi party to power in Germany. Benjamin wrote his “Critique of Violence” in this shared context. 

Walter Benjamin in 1928 from Wikimedia Commons. (PD-US).

But this essay remains essential for understanding the current situation not simply because it was written in Weimar Germany. Rather, it identifies an enduring impasse that haunts liberalism and liberal democracies. Fascism is an appropriate marker for the violence that culminated in the storming of the US Capitol. Yet, as in Weimar Germany, fascism is only a symptom — one side of a seeming impasse between fascist law-making violence and liberal law-preserving violence. Like a century ago when Benjamin wrote “Critique of Violence,” this impasse remains part of a much larger, self-perpetuating cycle. To talk of fascism is also to talk about the problems that its ostensible opponent — liberalism — also evokes. Neither Nazism nor Trumpism mark the beginning of fascism in Germany or the U.S. Rather, these two movements represent a breakdown of the partition between the fascist violence of imperial foreign policy and domestic discourses of liberalism. Just as Germany’s colonial genocide in southwest Africa came home to roost with the rise of Nazism, so too is the United States’ unwavering support for right-wing coups in other countries (no matter the party in the White House) no longer an export-only commodity. As in Weimar Germany, this crumbling partition presents itself as a domestic opposition between liberal constitutionalism and fascist law-making violence, but Benjamin shows how this ostensible linear opposition is really a circle. 

At first pass, Benjamin’s essay might seem like a condemnation of liberalism’s central ideals of “the rule of law” and constitutional proceduralism. Indeed, this is probably why the Nazi juridical theorist Carl Schmitt wrote Benjamin to congratulate him on his essay. While it might seem strange for a Nazi to write a congratulatory note to a German Jew, the letter articulated a partially shared critique of liberalism (and this is precisely why intellectuals on the left have increasingly taken up Schmitt in recent years to critique neoliberal policies). However, Schmitt and Benjamin could not be farther apart from each other in their political and intellectual programs. In fact, a closer reading of Benjamin’s essay reveals a wicked indictment of Schmitt and other fascist theorists. The difference between Benjamin and Schmitt’s critique of “the rule of law” is absolutely decisive in interpreting the recent neo-fascist coup attempt in D.C. 

Basically, Schmitt and Benjamin were critiquing liberalism for entirely opposite reasons. Schmitt decried the paralysis of the liberal Weimar establishment and longed for a sovereign that could trump constitutional proceduralism and make Germany great again. Reading Schmitt is thus essential for understanding the global resurgence of the right today, as he describes a Trump-like sovereign that flouts/transcends rules to “get things done” and to restore hierarchical “law and order.” Schmitt’s model for this sovereign is the God of his conservative Christianity, so if you’re still wondering why many on the U.S. Right would seem to forgo their “Christian values” to embrace a toxically masculine sovereign, look no further. 

Benjamin’s article is precisely a critique of this fascist critique of liberalism. Crucially, Benjamin’s political theology is inspired by his studies of Jewish Kabbalah and messianism, while Schmitt (who is recognized as coining the very term “political theology”) draws on his conservative Christian convictions. To put it simply, Benjamin sees the fascists’ desire for a law-making transcendence of law as central to the system of liberal democracy they ostensibly oppose. This fascist desire for “law-making violence,” which breaks the law to impose “law and order,” is typically met by another kind of violence: “law-preserving violence.” Law-preserving violence often portrays itself as nonviolent and neutral; it is the sovereignty of rules, constitutional procedures, and objective processes. It promises to unite rather than divide, to establish consensus rather than disagreement (this is the discourse of Biden). The confrontation between fascist law-making violence and liberal law-preserving violence was precisely what characterized the impasse of Weimar Germany (and, I am suggesting, the impasse that the U.S. currently faces). That is why almost every anti-Trump pundit responds with a law-preserving outrage at the events of January 6th, and why Democratic congress members repeatedly uphold “the rule of law” as the sacred order they are protecting from tyrant Trump. But such responses are a symptom of the disease rather than a potential cure, as Benjamin goes on to show by refuting the opposition between law-preservation and law-making violence. 

Benjamin’s brilliant and decisive blow to both fascists and the liberal (today we might say “neoliberal”) establishment lies in his assertion that law-preserving and law-making violence are inextricable. While seemingly opposed, they perform a self-perpetuating cycle of harm. This is perhaps even more evident today, in a world largely ruled by (an ailing) U.S. economic and military hegemony. While Germany could only aspire to a global empire that never was, enacting mass genocides of Africans in their colonies and Jews in their death camps in the process, the U.S. has already realized this scale of empire. At the same time, the U.S. is heir to the Enlightenment liberal ideals of Europe, which insist that “all men are created equal” and that the people choose their governments. Is it time to rally around such ideals to combat the disturbing rise of fascism in the U.S. today?

Unlike law-making violence, which violates law in order to establish “law and order,” divine violence does not seek to establish another regime of authoritative law. 

The problem, Benjamin points out, is that such ideals, enshrined in constitutional law, have always been dependent on law-making violence that flouts systems of law. Domestically, U.S. systems of law, at federal, state, and local levels, have not often worked to ensure universal voting rights. While the situation is perhaps better today than one hundred years ago, when African Americans were massively disenfranchised and White women had just received the right to vote, there are still massive amounts of people who cannot vote — even though they permanently reside in the United States and (unlike Trump and many large corporations) pay significant portions of their income in U.S. taxes. This category includes felons and undocumented residents, both of whom are disproportionately non-White. 

In terms of foreign policy, the situation is perhaps more dire. In practice, this country does not acknowledge the right of voters to choose their own governments and regularly nullifies elections using covert and overt means. In the twentieth and twenty-first centuries, this cornerstone of U.S. foreign policy has not significantly altered with changes in electoral politics. Democrat and Republican regimes have both overseen military, juridical, and economic coups in other countries — incursions that blatantly abrogate what liberal ideals would call “the rule of law.” 

To take some recent examples, under the Obama administration, the U.S. supported a military coup that removed Honduras’s democratically elected Leftist leader and spearheaded the NATO bombing that led to regime change in Libya. These coups have made those two countries unlivable places, directly contributing to “refugee crises” in the U.S. and Europe (and providing those imperial countries with workers who cannot vote). Iraq is still trying to recover from a U.S. regime change operation under the second Bush that killed over a hundred thousand people. Meanwhile, the Trump administration has (with less success) supported a number of recent right wing coup attempts — in Bolivia by nullifying their elections through the OAS; in Honduras by funding and certifying the controversial right-wing regime; and in Venezuela through covert operations, massive financial assistance for the right-wing sector of the opposition led by a self-proclaimed president, attempted nullification of existing constitutional and electoral processes, unilateral denial of humanitarian aid during the pandemic, and brutal economic sanctions that were estimated to have killed 40,000 people (as of April 2019, one year prior to the pandemic). These policies are unlikely to change significantly under a Biden presidency, with attempted coups or economic sanctions against Venezuela features of the Bush II, Trump, and Obama administrations. In fact, while signing a number of much-needed domestic executive orders on his first day in office, Biden and his appointee for secretary of state vowed to continue their recognition of the self-proclaimed right-wing president, keeping intact the previous administrations’ hard-line approach toward Venezuela.

In sum, the U.S. system of law and government is not opposed to right-wing coups; it has consistently supported them no matter who is president of this country. The events in D.C on January 6th were not simply the result of deranged conspiracy theorists or a deranged leader; they reflected a deeper truth. At the heart of American democracy, with its law-preserving constitutional ideals, is the law-annulling violence used to maintain this system. After weathering several U.S.-sponsored coup attempts, the Venezuelan foreign minister was quite incisive in his commentary on the D.C. insurrection: “with this unfortunate episode, the United States is experiencing what it has generated in other countries with its policies of aggression.” 

So what is to be done? Unlike many academic essays, Benjamin is not satisfied with simply dismantling both sides of an argument. He goes further, by offering a third alternative — a hope, if you will — that he calls “divine violence.” This nonviolent violence opposes fascist law-making violence without falling into the trap of rallying around law-preserving rhetoric. Benjamin’s prototype for such divine violence is the “general strike.” Such a show of non-cooperation across sectors of society, he notes, differs from the kind of strikes enacted by the bargaining power of recognized unions (a limited power that does not even exist in many parts of the United States). Bargaining power represents an attempt at reform and amelioration while staying within the agreed-upon rules of negotiation and conflict. Divine violence, in contrast, abolishes or annuls accepted rules and laws. And unlike law-making violence, which violates law in order to establish “law and order,” divine violence does not seek to establish another regime of authoritative law. 

At the heart of American democracy, with its law-preserving constitutional ideals, is the law-annulling violence used to maintain this system.

To put this in terms that would apply to our contemporary political situation in the U.S., law-preserving violence would embody a stance of reform. In response to attempts at overturning the 2020 election results, we need to rally behind U.S. democracy and perhaps reform it by getting rid of the Electoral College or partisan control of elections (both of which would be totally unacceptable in most avowed democracies). As an answer to Black Lives Matter movements against racialized police brutality, we need to reform the police, investing more money in training or body cameras. A position of divine violence, however, is not one of reform; it would insist that the system of law itself is inherently violent and must be dismantled. It does not necessarily say what we would build in its place, but it says we must begin anew. In response to police brutality, it calls for abolition of existing systems of policing and imprisonment. In response to an attempted coup, it does not call for a strengthening of security and surveillance measures (which will certainly be an outcome of this incursion) or the perfection of the system (if only we followed the rules). It would call for the construction of an entirely new system of power and a withdrawal from the current one. It would seem that the U.S. empire can never be free of law-making violence no matter how much it reforms its domestic policing or electoral systems. 

The problem with Benjamin’s formulation of “divine violence” is that it can seem impossibly grand — something only accomplished in revolutions or society-wide general strikes. I think such a characterization is paralyzing and unnecessary. A refusal of law-preserving and law-making violence most often happens in small acts. I would even call it a way of life, the daily practice of an otherwise. When someone performs substantive solidarity and makes kin in ways that go beyond nation-state borders or hegemonic conceptions of family, this is the realization of divine violence in Benjamin’s sense. And making kin entails more than the missionary impulse of one-way charity — the law-preserving work of NGOs and neoliberal civil society. It does not come to impose civility via rules but to suspend rules in the name of love. Divine violence is another word for the work of love — not the romantic narrative of selfhood that defines our neoliberal “empire of love” but a love that abolishes that empire of self. Divine violence is abolition rather than absolution. 

But the first step, the one that precedes any possibility of an otherwise, is seeing the cycle of law-preserving and law-making violence rather than becoming entrenched in the mass-mediated vitriol that drives us either to a defense of “the rule of law” or right-wing desires for a violent imposition of “law and order.” Walter Benjamin unmasked this vicious cycle exactly one century ago. His analysis did not prevent the rise of the Nazi party’s law-making extralegal violence. It remains to be seen whether the U.S. has entered its own Weimar era, but the impasse that Germany faced one hundred years ago echoes in the dilemma the U.S. faces today. The title of Benjamin’s 1921 essay contains a secret meaning that cuts through this apparent impasse, a kabbalistic cipher that has remained hidden in plain view for a century. It was only after the coup in D.C. that I realized Benjamin was not simply writing a critique of violence, but an exposition of a violence made of critique. This nonviolent violence is the first step toward refusing capture by the law-preserving and law-making impulses that define the current conflict but remain two sides of the same coin. ♦

J. Brent Crosson is a cultural anthropologist and assistant professor of religious studies at the University of Texas-Austin. He is the author of Experiments with Power (University of Chicago Press 2020) and editor of the journal special issue “What Possessed You? Spirits and Property at the Limits of “Possession.”

Recommended Citation

Crosson, J. Brent. “An Insurrection of ‘Law and Order’? The Cycle of Law-Preserving and Law-Making Violence.” Canopy Forum, February 11, 2021.