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The Blurred Line Between Law and Violence (William T. Cavanaugh)

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In conjunction with Marginalia (part of the LA Review of Books), Political Theology Today has organized a symposium on Ted Smith’s extraordinary new book Weird John Brown: Divine Violence and the Limits of Ethics. This is the second post in our six-part series, which includes responses from E. Brooks Holifield, William T. Cavanaugh, Peter Ochs, Keri Day, and Andrew Murphy, and a response to the responses from Ted Smith.

Bill CavanaughA bishop recently said that 90% of the homilies he has ever heard can be boiled down to two words: “Try harder.”  Of all the things that Ted Smith’s book does well, the most compelling for me is his attempt to critique the ethical confines to which reflection on politics and violence — along with so much else — is often limited. Smith picks up and extends Charles Taylor’s criticism of “code fetishism,” the idea that all human action must be made law-like, susceptible to obligatory conformity with an ideal. Opening law to a theological dimension that does not demand earthly conformity invites contemplation and delight. Theology is written in the indicative, not the imperative. Christian theology aspires to delight in what God has done, what the Messiah has already fulfilled, and to rejoice in the presence of God despite the failure of the present to measure up to God’s standard. It invites a free response, and does not command that we “try harder” to align the present with the ideal. Smith beckons us to move beyond the despair hidden behind the notion that “God has no hands but yours.”

A problem with trying harder is that, as Smith says, playing, praying, eating, lovemaking, etc., all are distorted when they become moral obligations. The most public consequence is that trying harder in this sense invites violence to bring the present into conformity with a higher standard. Violence makes law and law makes violence. Smith is not trying to do away with all ethical codes. He does, however, want to open up a transcendent space above such codes from which the code can be critiqued, and from which exceptions — pardon, for example — can be made possible.

Smith’s argument here, of course, turns the usual claims about religion and violence on their heads. We are incessantly told by liberal critics that appeals to a higher law above the immanent frame throws merely mundane politics out of perspective and thereby produces or exacerbates violence. Smith argues, first, that appeals to a higher law are often “secular” appeals, such as Henry David Thoreau’s appeal to the higher law of individual conscience. Second, Smith shows that appeals to merely mundane laws or liberal ambivalence and modesty can be just as capable of producing violence as appeals to “religion.” The Sherman who razed Atlanta was a thoroughgoing pragmatist, and the white clergymen who opposed Martin Luther King, Jr. used liberal incrementalism to reinforce the violence of racism. Marginalizing appeals to religion or a higher law will do nothing to solve the problem of political violence. The answer is “not less religious reasoning but better and deeper religious reasoning.”

Rather than simply pointing to the fact of the violence of secular social orders to puncture the myth of religious violence, Smith analyzes exactly how the attempted confinement of violence to an immanent frame actually produces violence. The secular state’s monopoly on violence is meant to contain violence within a sober, universally rational, and immanent sphere of law. In the American case, however, the attempt to confine violence to law must occlude the moment of the law’s founding, the American Revolution, which, as revolution, is a moment of extra-legal violence. The presence of such exceptions to law-governed violence is rooted in claims to sovereignty that goes beyond the law. Smith shows how the U.S. government has fostered violence beyond the rule of law, outsourcing it to military contractors, resorting to “extraordinary rendition” and torture, carrying out extra-legal spying on citizens, and so on. At the same time, there is an anxiety to bring such exceptions under the rule of law. In one of the most interesting parts of the book, Smith shows how language of “emergency” since the September 11 attacks has generated huge amounts of new legislation meant to bring exceptions under the rule of law, thereby greatly expanding state powers that are unlikely to go away even if the emergency does. In its drive for legality, the Obama administration has turned indefinite detention at Guantánamo Bay from an exception into a practice with full legal warrant. Expanding the law to cover emergency actions can be more dangerous than leaving such actions outside the law.

As Smith brilliantly argues, when we deny any higher purpose to the state, the state is just that order that happens to have prevailed, “the congealed spoils of past violence.” Violence is the origin of law, so the line between law and violence is blurred, and keeping violence within the rule of law is pointless. This explains why the attempt to remove all theology from politics can end up producing “sacred” political orders which invite killing for the flag. If there is nothing beyond the political order, then the state becomes an end in itself, a mythological entity which requires sacrifice on its behalf.

Smith solves the problem by appropriating Walter Benjamin’s concept of “divine violence” — and his exemplar appears to be John Brown. This solution would surely invite misunderstanding had Smith not argued so lucidly that we must not identify God’s law with any human code of law or ethics. This is where Carl Schmitt goes wrong. Schmitt is right to claim the importance of the sovereign exception to resist the fetish of the code, but he is wrong to collapse wholly that God-like sovereignty into earthly power. According to Smith, theological concepts empty into political concepts without remainder for Schmitt; the German jurist wants to break open the closed circle of law to a transcendent dimension, but he ends up simply identifying God with the state.

Smith sides with Benjamin, who argues against Schmitt that “the problem of Catholicism” is its identification of divine power with a worldly power. Schmitt argues in Roman Catholicism and Political Form that the Incarnation ensures the Church’s “absolute realization of authority,” which becomes a crucial source of legitimation for the state. Benjamin, in contrast, claims that “in this world nothing constant and no organization can be based on divine power, let alone domination as its supreme principle.” For Smith divine violence simultaneously resists the banishment of the theological from an immanent sphere of law and the identification of earthly phenomena with theological ideals. Benjamin asserts that “authentic divine power can manifest itself other than destructively only in the world to come.” For Smith, then, “The indicative of the Gospel relates to the world as negation….The divine violence of the higher law relativizes not just every particular ‘ought’ and ‘should’ but the whole imperative mood.”

Smith tries to resist what one might call a Niebuhrian reading of Benjamin; though the messianic age is “outside and other than history” — like Niebuhr’s cross standing at the edge of history — it nevertheless “defines and so permeates history.” His insistence on negation, however, leaves me with questions about what positive work the book does. I find Smith’s suggestion of an official — and deliberately exceptional — pardon of John Brown brilliant and enormously constructive. Beyond this suggestion, however, he briefly and somewhat vaguely spells out the positive implications of the argument in the following terms:

A person who knows the work of divine violence would not cease participating in the political life that divine violence has rendered mortal. But she would participate with a different sort of consciousness, seeking the goods of this world as one who is delivered from their pretensions and freed from their demands. She would understand both that the politics of this age cannot achieve anything ultimate and that, exactly in their limitations, they are joined to the work of redemption. She could reject the necessity of the state and still seek the earthly goods it can achieve. Delivered by divine violence, she would be capable of a rightly secular politics.

I worry here that Benjamin’s insistence that there be no organization based on divine power will end up relegating God’s action to an interiorized “different sort of consciousness” that nevertheless still must express itself through the state, because there is no other forum for politics.

The issue here is theological, most specifically a question of the Incarnation. What is the status of the Incarnation if the messianic age remains so elusive in history? What Smith rightly says about the indicative mood of Jesus’ announcement that the Kingdom of God is at hand fits awkwardly with Benjamin’s messianic age, which operates in practice more as an abstract principle for reading events in history than as a claim about an event that has in fact transpired in history, a claim — unavoidable for Christians — encapsulated in the term “Incarnation.” I don’t at all think this is a fatal problem for Smith’s book. I did, however, find myself wishing, if not for a little less Benjamin, then at least for a little more Jesus, who makes only cameo appearances in the text. The book is heavy on appeals to Benjamin, Adorno, Agamben, et al., but fairly light on appeals to theology and Scripture. He discusses typology, but rather than turning to Paul and the patristic writers, for whom typology was second nature, Smith turns to Geuss and Adorno.

In his discussion of pardon, Smith includes a reading of the Cain and Abel story that differs significantly from that of Augustine. For Smith, God’s pardon of Cain does not change the law against murder, but it does create a new polity, a new city on the plain that extends the effects of pardon to a whole network of relationships. Augustine, however, reads Cain as the founder of the civitas terrena, which is marked by the love of self to the exclusion of the love of God. Augustine contrasts that city with the civitas Dei, a city curiously absent from Smith’s reading of the story. Augustine, in other words, has an ecclesiology, not just a “different sort of consciousness” but a different way of organizing bodies in space that exists in both tension and ad hoc cooperation with the earthly city. Smith, with Benjamin, seems so wary of identifying any earthly organization with the Body of Christ that there is no ecclesiology in the book. If there were, it would perhaps help Smith flesh out his insight that “We should not seek to eliminate exceptions to the rule, then, but to cultivate forms of life that can engage in reasoned discourse about exceptions.” Incarnation is dangerous, but — as Smith says about “religion” — what we need is not less incarnation but better incarnation. The kind of exceptions Smith favors is exemplified not by John Brown’s murderous actions but by the pardon of John Brown, the attempt to break into the cycle of violence. To distinguish good exceptions from bad exceptions from a Christian point of view, however, Smith will need to appeal to the concrete contours of Jesus’s life, death, and resurrection, the kind of God who became incarnate and whose Body continues that incarnation on earth. The Church is so often a rule-bound legitimizer of earthly power. It can also, in its sacramental form, help conform practitioners into the kenotic Body of Christ that can follow in the concrete footsteps of Jesus, preferring to absorb rather than unleash violence.

It is, of course, unfair to complain about the book that an author did not write. All of the above should be taken as merely a few suggestions for the further theological development of Smith’s argument. I must end on a note of admiration for Smith’s book. It is simply the best thing I have read this year, and it is the one book that I am now insisting that my colleagues read.

William T. Cavanaugh is Director of the Center for World Catholicism and Intercultural Theology and Professor of Catholic Studies at DePaul University.  His degrees are from Notre Dame, Cambridge, and Duke Universities.  He is the author of five books and editor of two more.

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