A Political Genealogy of You Can Just Do Things

Walter Benjamin #2: Critique of Violence

“You have sacrificed young people to the state.”¹

With this accusation, Walter Benjamin severed all ties with his former mentor, Gustav Wyneken, following the latter’s speech imploring the idealistic young intellectuals of his German Youth Movement (imagine Boy Scouts dwelling on Friedrich Nietzsche) to enlist for military service. Germany was at war, and Benjamin refused the fate his nation insisted he must accept. The draft notice Benjamin received at the age of 22 in 1915 he deferred successfully multiple times. But the clever medical excuses which he fed the increasingly suspicious German draft board were exhausted before Europe’s Great War reached its conclusion.

A fugitive from military conscription, Benjamin fled his Berlin residence for the neutral country of Switzerland in July 1917 and remained there until after the signing of the Treaty of Versailles.

His neighbor in Switzerland, and fellow dodger of the German draft, Gershom Scholem, wrote later of Benjamin’s 1920 essay “Critique of Violence” that “it inaugurated the series of his ‘political’ writings and which in its discussion of Georges Sorel strikes all the themes that had agitated him in his Swiss period—his thoughts on myth, religion, law, and politics.”²

Writing in 2018, Frederic Jameson agreed that the Benjamin essay “Critique of Violence” can “be read as a meditation on Georges Sorel’s epoch-making Reflections on Violence (1904), which deals with the central ethical issue in late nineteenth-century anarchism, where the word terrorist first comes into general circulation.”³

Military conscription in general provides one avenue of approach for Walter Benjamin in his “Critique of Violence” essay, namely the question of how central is violence (and not only the threat thereof) to the preservation of the state, of any state. Benjamin writes, “Since conscription is a case of law-preserving violence that is not in principle distinguished from others, a really effective critique of it is far less easy than the declamations of pacifists and activists suggest.”⁴

From this mention of pacifism, one might see how Jameson would view Benjamin in this essay to be “strongly affirming his dissent from all ideologies of ‘nonviolent struggle’ of the future Gandhian type”.⁵

For Benjamin though, the exemplary act of violence, constituting a potentially mortal threat against the state, while still an act not circumscribed by the state’s prohibition on violence for purposes of individual bargaining, is the general strike. For Benjamin, all strikes are in fact violent, but theirs is a violence by omission. His demonstration as to how such reasoning works gives the example of doctors marching in solidarity instead of tending to their patients.

Benjamin credits Georges Sorel with introducing the concept of the “general strike” in contrast to a labor strike directed at the management of a single company. Sorel derives the direct action tactics he promotes in Reflections on Violence from the enduring resilience he saw in the convictions of the religious. The Christian who understands all opposition he faces as the trying work of diabolical temptation and who remains convinced of his in-group’s inevitable final victory has proven throughout history a formidable soldier. Just so, Sorel argues, the proletariat, in their contemporary struggle for secular rights, need their own myths of assured victory.

If, for Sorel, religion had historically been violence’s ground, then Benjamin, who insisted in this essay on a God who exists as the righteous judge, felt the need to distinguish between mythic violence and divine violence. Benjamin contrasts Zeus’ punitive chaining of Prometheus to the Scythian cliffs for the crime of fire-theft with Adonai’s splitting of the ground beneath Korah to swallow him for the sin of sedition. The latter “strikes [the privileged Levites] without warning, without threat, and does not stop short of annihilation. But in annihilating it also expiates, and a profound connection between the lack of bloodshed and the expiatory character of this violence is unmistakable. … Mythic violence is bloody power over mere life for its own sake; divine violence is pure power over all life for the sake of the living. The first demands sacrifice; the second accepts it.”⁶

Giorgio Agamben, who served as the editor for Walter Benjamin’s collected writings translated into the Italian language, presented some evidence in his 2005 book State of Exception that the German political theorist Carl Schmitt (1888–1985) drew from Benjamin’s “Critique of Violence” in formulating his theory of the state of exception, the major topic of Schmitt’s 1922 book Political Theology. Benjamin would later personally gift Schmitt a copy of his book Origins of the German Trauerspiel. Years after Benjamin’s death, Schmitt would directly respond to Benjamin’s ideas in his 1956 book Hamlet or Hecuba.

Schmitt’s theory of the state of exception takes a position against the taxonomy of violence Benjamin traces in the “Critique of Violence” essay; the state of exception offers an alternative to Benjamin’s characterization of law as upheld inherently by violence, whether that be law-preserving violence such as police actions suppressing threats to state hegemony or law-creating violence, such as insurrectionary revolts which replace the prior laws of an overthrown state with a rebel government’s revolutionary new peace on its own terms. By the idea Benjamin lays out in “Critique of Violence,” both the formation and the tear-down of any legal system can have no other foundation than in acts of violence.

Schmitt’s state of exception (per Agamben’s exploration of it) falsifies Benjamin’s theory by contradiction. Legal orders all the time suspend their own laws voluntarily without resorting to violence as befit their expedient needs. They’ve done so since the days of Ancient Rome, when the Roman Senate allowed itself to appoint a “dictator” for the purposes of protecting the republic’s existence, a man chosen via senatus consultum ultimum, a final decree of the Senate, who would then voluntarily yield his authority back to the republic when the state’s existential threat had passed.

Over and over again in his book on the political history of the state of exception, Agamben revisits its definition:

The state of exception is not a special kind of law (like the law of war); rather, insofar as it is a suspension of the juridical order itself, it defines law’s threshold or limit concept.⁷

Many governments’ acts of temporarily suspending their laws (which those same governments existentially depends on) have been enshrined as emergency procedures into the scope of law; in other countries, such powers remain not formally constitutional but are used nevertheless in times of crisis in the name of protecting the constitution. Schmitt “unreservedly criticizes the pretense of regulating by law what by definition cannot be put in norms.”⁸ Agamben summarizes the view that neither constitutional definitions nor their absence have ever managed to prevent the use of the state of exception by heads of state by saying “the state of exception appears as the legal form of what cannot have legal form.”⁹

{

  "France": "état de siège",

  "Germany": "Innerer Notstand",

  "United Kingdom": "Martial law",

  "El Salvador": "régimen de excepción"

}

So while the suspension of the rule of law is not formally established as an emergency process in the United States constitution, as it is in France, for example, where the condition of the “state-of-siege” allows the executive branch to usurp legislative or judicial power to protect the existence of the state, historical precedents abound for the use of the state of exception by American Presidential administrations.

Acting counter to the text of Article 1, on April 15, 1861, Lincoln decreed that an army of seventy-five thousand men was to be raised and convened a special session of Congress for July 4. In the ten weeks that passed between April 15 and July 4, Lincoln in fact acted as an absolute dictator (for this reason, in his book Dictatorship, Schmitt can refer to it as a perfect example of commissarial dictatorship: see 1921, 136). On April 27, with a technically even more significant decision, he authorized the General in Chief of the Army to suspend the writ of habeas corpus whenever he deemed it necessary along military lines between Washington and Philadelphia, where there had been disturbances. Furthermore, the president’s autonomy in deciding on extraordinary measures continued even after Congress was convened (thus, on February 14, 1862, Lincoln imposed censorship of the mail and authorized the arrest and detention in military prisons of persons suspected of “disloyal and treasonable practices”).¹⁰

Agamben’s take on these actions by Lincoln: “They were based on the conviction that even fundamental law could be violated if the very existence of the union and the juridical order were at stake.”

Agamben also cites the presidencies of Woodrow Wilson and FDR, where the Wilson administration asked congress for emergency wartime powers not for an internal civil war, but for a war with external powers (who by then had sunk several civilian cargo ships). On this decision, Agamben writes:

It is, however, necessary to specify that instead of ignoring Congress, as Lincoln had done, Wilson preferred each time to have the powers in question delegated to him by Congress. … From 1917 to 1918, Congress approved a series of acts (from the Espionage Act of June 1917 to the Overman Act of May 1918) that granted the president complete control over the administration of the country and not only prohibited disloyal activities … but even made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.”¹¹

President Franklin Roosevelt used the metaphor of a wartime emergency to justify the extraordinary executive powers he employed to counter the Great Depression with his New Deal economics.

From the constitutional standpoint, the New Deal was realized by delegating to the president (through a series of statutes culminating in the National Recovery Act of June 16, 1933) an unlimited power to regulate and control every aspect of the economic life of the country.¹²

Roosevelt later expanded further his own “emergency” powers with the outbreak of an actual war: no longer as an economic emergency but as a military one. No, not with the bombing of Pearl Harbor, but months prior to that event.

The outbreak of World War Two extended these powers with the proclamation of a “limited” national emergency on September 8, 1939, which became unlimited on May 27, 1941. … The most spectacular violation of civil rights (all the more serious because of its solely racial motivation) occurred on February 19, 1942, with the internment of seventy thousand American citizens of Japanese descent who resided on the West Coast (along with forty thousand Japanese citizens who lived and worked there).¹³

The ultimate context Agamben gives for his authoring the book State of Exception was the enactment of the Patriot Act in the United States, and specifically the legalized suspension of law with regard to imprisonment. This law

allowed the attorney general to “take into custody” any alien suspected of activities that endangered “the national security of the United States,” … it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws. Neither prisoners nor persons accused, but simply “detainees,” they are the object of a pure de facto rule, of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight. The only thing to which it could possibly be compared is the legal situation of the Jews in the Nazi Lager [camps], who, along with their citizenship, had lost every legal identity…¹⁴

Agamben’s point is to demonstrate how the suspension of law has allowed the use of legal institutions, such as criminal detention, for the unchecked ends of the executive branch. And while Agamben’s comparison is extreme, to be sure the deportation of European Jews by Hitler’s government did begin its operations under a state of exception.

No sooner did Hitler take power (or, as we should perhaps more accurately say, no sooner was power given to him) than, on February 28, he proclaimed the Decree for the Protection of the People and the State, which suspended the articles of the Weimar Constitution concerning personal liberties. The decree was never repealed, so that from a juridical standpoint the entire Third Reich can be considered a state of exception that lasted twelve years.¹⁵

Agamben wants to be clear that “the voluntary creation of a permanent state of emergency (though perhaps not declared in the technical sense) has become one of the essential practices of contemporary states, including so-called democratic ones.”¹⁶ He emphasizes that

The subsequent history of the state of siege is the history of its gradual emancipation from the wartime situation to which it was originally bound in order to be used as an extraordinary police measure to cope with internal sedition and disorder, thus changing from a real, or military, state of siege to a fictitious, or political one. In any case, it is important not to forget that the modern state of exception is a creation of the democratic-revolutionary tradition and not the absolutist one.¹⁷

In our own country, we can measure the state of exception quantitatively. In America, a state of national emergency can be declared by the President via executive order, as first did Woodrow Wilson (Lincoln did not commandeer power via executive order; he simply acted and later asked congress to ratify the actions he’d already taken, which they did). National emergencies can persist between Presidential administrations so long as the administration who inherits them continues annually to renew their active status.

For the past century, nearly every U. S. President has tacked on more and more emergency powers onto their existing administrative authority. We had something of a reckoning against this trend during the Nixon administration, when Congress called out this practice with the National Emergencies Act of 1976. For leading the committee that led to the passing of the congressional act (and not only for his opposition to the Vietnam war), the American intelligence agencies targeted Senator Frank Church with surveillance for the balance of his life. But today, we have more ongoing national emergencies than we did in 1976, when congress passed the National Emergencies Act, which ended all previous national emergencies. According to Frank Church, the head of the Special Committee on the Termination of the National Emergency, there were just too many. And now we have even more.

America currently has forty-nine (49) ongoing national emergencies. Only sixteen of those were declared by Trump, eight during his current second term. In America, we have thirty three national emergencies that were declared by prior Presidential administrations and just never ended, ongoing still to this day. The oldest currently in-force national emergency dates back to the Carter administration:

Blocking Iranian Government Property

Ordered the freezing of Iranian assets as part of the U.S. response during the Iran hostage crisis¹⁸

According to Agamben, the sovereign is the one who can declare a state of exception; the President of the United States has the authority to declare an emergency whenever it suits him.

It was by emergency declaration that Trump classified on his first day of office the gangs known as Tren de Aragua and MS-13 as terrorist organizations, stating that they “threaten the stability of the international order in the Western Hemisphere.”

In naming cartel groups terrorist groups, Trump follows the example of El Salvador’s President, Nayib Bukele, who in March 2022 asked his country’s legislature to declare a régimen de excepción to combat a spike in cartel-related homicides (the state of exception has been formally provisioned for in El Salvador’s constitution since 1983).

The Salvadoran state of exception which Bukele has wielded to achieve his own political goals has aligned him with Trump’s own usurpation of American judicial power. In the ongoing dispute between the American courts and the Trump administration, Bukele has unequivocally supported Trump’s actions, as in Bukele’s sly suggestion that if Trump were to adhere to a Supreme Court decision (to return the mistakenly detained Kilmar Abrego Garcia to Maryland), it would require of Bukele a complicity as illegal as “smuggling a terrorist” into the United States.

In a recent court ruling by the 4th Court of Appeals, Judge Wilkinson admonished the Trump administration that “The Executive is inherently focused upon ends; the Judiciary much more so upon means.” In a remarkable parallel, Walter Benjamin in his essay “Critique of Violence,” sought to nullify the question of whether or not any political action is ethical on the basis of the ends it seeks to achieve. For if this were the criterion on which to judge political action, then all manner of vile, despicable means could retroactively be justified so long as the ends were found reasonable; instead, a determination of when and to what degree the inherent violence of legal enforcement can be applied must be made based upon the means themselves. Benjamin writes, “it is clear that the most elementary relationship within any legal system is that of ends to means, and, further­more, that violence can first be sought only in the realm of means, not in the realm of ends.” In Benjamin’s analysis of governments, the cruelty is not the point, just how it gets there. To determine when the political use of violence can be justified demands that one “discriminate within the sphere of means themselves, without regard for the ends they serve.”¹⁹

Nearly twenty years later, writing in the final essay of his life, Walter Benjamin wrote in the eighth thesis to his essay “On the Concept of History” that, “The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is not the exception but the rule,”²⁰ While the truth of this statement seems to increase with each passing year, the state of American exception did not begin with Trump; the groundwork for such executive actions in this country was firmly precedented in the withdrawal of legal protections from detainees via the Patriot Act under President Bush the younger; and furthermore in the declaration of 16 different states of emergency via executive order under President Clinton; and still further in the use of wartime emergency justifications for domestic policy agendas by President Franklin D. Roosevelt; and certainly it can be seen in the institution of the National Emergency by fiat that Woodrow Wilson established in 1917. The executive usurpation of governmental power previously asserted by other branches of government is integral to the violent history of the state.

1. Walter Benjamin, The Correspondence of Walter Benjamin, 1910–1940, ed. Gershom Scholem and Theodor W. Adorno, trans. Manfred R. Jacobson and Evelyn M. Jacobson (Chicago: University of Chicago Press, 1994), page 98.

2. Gershom Scholem, Walter Benjamin: The Story of a Friendship, trans. Harry Zohn (New York: New York Review of Books), page 140.

3. Frederic Jameson, The Benjamin Files (London: Verso Books), page 149.

4. Walter Benjamin, “Critique of Violence,” in Selected Writings, Volume 1: 1913–1926, ed. Marcus Bullock and Michael W. Jennings, trans. Edmund Jephcott (Cambridge, MA: Belknap Press of Harvard University Press, 2004), page 241.

5. Frederic Jameson, The Benjamin Files (London: Verso Books), page 150.

6. Walter Benjamin, “Critique of Violence,” in Selected Writings, Volume 1: 1913–1926, ed. Marcus Bullock and Michael W. Jennings, trans. Edmund Jephcott (Cambridge, MA: Belknap Press of Harvard University Press, 2004), page 250.

7. Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago, IL: The University of Chicago Press), page 4.

8. Ibid, page 10.

9. Ibid, page 1.

10. Ibid, page 20.

11. Ibid, page 21.

12. Ibid, page 22.

13. Ibid.

14. Ibid, page 3-4.

15. Ibid, page 2.

16. Ibid.

17. Ibid, page 5.

18. “List of National Emergencies in the United States.” Wikipedia, accessed April 20, 2025, https://en.wikipedia.org/wiki/List_of_national_emergencies_in_the_United_States.

19. Walter Benjamin, “Critique of Violence,” in Selected Writings, Volume 1: 1913–1926, ed. Marcus Bullock and Michael W. Jennings, trans. Edmund Jephcott (Cambridge, MA: Belknap Press of Harvard University Press, 2004), page 236.

20. Walter Benjamin, “On the Concept of History,” in Selected Writings, Volume 4: 1938–1940, ed. Howard Eiland and Michael W. Jennings, trans. Harry Zohn (Cambridge, MA: Belknap Press of Harvard University Press, 2006), page 392.