“What the state fears, the state being law in its greatest force, is not so much crime or robbery, even on the grand scale of the Mafia or heavy drug traffic, as long as they transgress the law [loi] with an eye toward particular benefits, however important they may be. (It is true that today these state-like and international institutions have a more radical status than that of crime and represent a threat with which so many states negotiate by allying themselves to it — and by submitting to it, for example, by making their own pro t in money-laundering — while dissembling as fighting it by any means.) The state is afraid of founding violence — that is, violence able to justify, to legitimate (begründen) , or transform the relations of law (Rechtsverhältnisse) , and so to present itself as having a right to right and to law [comme ayant un droit au droit] . This violence thus belongs in advance to the order of a law that remains to be transformed or founded, even if it may wound our sense of justice (Gerechtigkeitsgefühl) (185/E283).Only this violence calls for and makes possible a “critique of violence” that determines it to be something other than the natural exercise of force. For a critique of violence — that is to say, an interpretive and meaningful evaluation of it — to be possible, one must first recognize meaning a violence that is not an accident arriving from outside the law. That which threatens law already belongs to it, to the right to law [au droit au droit] , to the origin of law. The general strike thus provides a valuable guiding thread, since it exercises the conceded right to contest the order of existing law and to create a revolutionary situation in which the task will be to found a new law, if not always, as we shall see in a moment, a new state. revolutionary situations, all revolutionary discourses, on the left or on the right (and from 1921, in Germany, there were many of these that resembled each other in a troubling way, Benjamin often finding himself between the two) justify the recourse to violence by alleging the founding, in progress or to come, of a new law, of a new state. As this law to come will in return legitimate, retrospectively, the violence that may o end the sense of justice, its future anterior already justifies it. The foundation of all states occurs in a situation that one can thus call revolutionary. It inaugurates a new law; it always does so in violence. Always, which is to say even when there have not been those spectacular genocides, expulsions or deportations that so often accompany the foundation of states, great or small, old or new, right nearby or very far away.”
“The legal system [I’ordre du droit] fully manifests itself in the possibility of the death penalty. By abolishing it, one would not be touching upon one dispositif among others. Rather, one would be disavowing the very principle of law. Thus is confirmed that something is “rotten” at the heart of law. The death penalty must [doit] testify that law is a violence contrary to nature. But what today testifies to this in a manner that is even more ”spectral” (gespenstische) (189/E286) by mixing the two forms of violence (preserving and founding) is the modern institution of the police. This is a mixture of two heterogeneous violences, “in a kind of spectral mixture (in einer gieichsam gespenstischen Vermischung),” as if one violence haunted the other (though Benjamin does not put it this way in commenting on the double meaning of the word gespenstich ). Spectrality has to do with the fact that a body is never present for itself, for what it is. It appears by disappearing or by making disappear what it represents: one for the other. One never knows who one is dealing with, and that is the definition of the police, singularly of state police the limits of which are, at bottom, unlocatable [inassignabIes]. This absence of a border between the two types of violence, this contamination between foundation and preservation is ignoble; it is, he says, the ignominy (das Schmachvolle) of the police. Prior to being ignoble in its procedures, in the unnameable inquisition that police violence allows itself without respect for anything, the modern police force is structurally repugnant, filthy [immonde] in essence because of its constitutive hypocrisy. Its lack of limit does not only come from surveillance and repression technology such as was already being developed in 1921 , in a troubling manner, to the point of doubling and haunting all public and private life (what we could say today about the development of this technology!). It comes from the fact that the police are the state, that they are the specter of the state and that, in all rigor, one cannot take issue with the police without taking issue with the order of the res publica. For today the police are no longer content to enforce the law and thus to preserve it; the police invent the law, publish ordinances, and intervene whenever the legal Situation is unclear to guarantee security — which is to say, these days, nearly all the time. The police are the force of law [loi] , they have force of law, the power of the law. The police are ignoble because in their authority, “the separation of law-founding violence and law-preserving violence is suspended [in ihr die Trennung von rechtsetzender und rechtserhaltender Gewalt aufgehoben ist]” 189/E286). In the Aufhebung that the police signifies in itself, the police invent law; they make themselves “rechtsetzend,” legislative. The police arrogate the right, arrogate the law [elle s’arroge Ie droit], each time the law is indeterminate enough to open a possibility for them. Even if they do not make the law [loi] , the police behave like a lawmaker modern times, if not the lawmaker of modern times. Where there are police, which is to say everywhere and even here, one can no longer discern between two types of violence — preserving and founding — and that is the ignoble, ignominious, revolting ambiguity. The possibility, which is also to say the ineluctable necessity of the modern police force, ruins, in sum — one could say deconstructs — the distinction between these two kinds of violence that nevertheless structures the discourse that Benjamin calls a new critique of violence.”
Derrida, Jacques. “Force of law: The “Mystical Foundation of Authority.”” Acts of Religion. Edited by Gil Anidjar, 228-98. New York: Routledge, 2002.