MARC DE WILDEIn the first part of the text, Benjamin examines what this notion of violence as a
manifestation entails for the understanding of sovereign state violence. In the juridico-
political order, he recognizes traces of an immediate violence that does not refer to a goal
or a cause outside itself and that, in consequence, cannot be understood by reference to
its normative meaning or function. Benjamin identifies this violence as a ‘‘lawmaking
violence [rechtsetzende Gewalt],’’ to be distinguished from a ‘‘law-preserving violence [re-
chtserhaltende Gewalt].’’ Lawmaking violence seems to reside in the ‘‘force of law [Gesetz-
eskraft],’’ guaranteeing the laws’ applicability. The juridico-political order betrays its
dependence on lawmaking violence in at least four cases: those of military law, the death
penalty, the police, and the parliament. These ‘‘legal institutions’’ are meant, according
to the text’s structure, to illuminate the various aspects of lawmaking violence: military
law serves to prove the originality, the death penalty the excessiveness, the police the
omnipresence, and the parliament the furtiveness of lawmaking violence.
With his reflections onmilitary law, Benjamin seeks to demonstrate that sovereign
state violence is not merely a ‘‘predatory violence’’ outside of and opposed to the legal
order but a force capable offounding and modifyingrelations of law. The sovereign’s
unlimited authority to wage wars seems, at first sight, opposed to the existing relations of
law, and even a threat to the continuity of the legal order as such. The peace ceremony
that formally ends all military operations, however, implies that a new de facto situation
will be recognized as new law. Through what Benjamin describes as the ‘‘necessary sanc-
tioning of every victory,’’ military violence, which at first seemed opposed to the legal
order, is in retrospect recognized as being legitimate and in accordance with the law. In
this moment of sanctioning, a lawmaking violence comes to light that is original, a priori,
and independent of any formerly existing relations of law. Thus military violence, as a
result of being legalized after the event, can cause a permanent modification of the legal
order.^39
According to Benjamin, the critics of thedeath penaltyare well aware that they are
not just aiming at one legal institution among others but at the origins of the law as such.
What motivates their critique is not the punitive measure itself but theabsence of any
measure; they reject capital punishment as being ‘‘out of proportion.’’ At the core of the
legal order seems to reside a kind of lawlessness, a violence that escapes every attempt at
legal regulation. Confronted with this elusive violence, the laws prove to be fragile and
powerless, incapable of checking the excess upon which their applicability seems to de-
pend. According to Benjamin, the death penalty thus reveals ‘‘something rotten in the
law [etwas Morsches im Recht]’’: originating in a lawless violence, the legal order is always
already exposed to the possibility of its decline, its internal corruption.^40
The institution of thepolice, Benjamin argues, embodies a ‘‘spectral mixture’’ of law-
making and law-preserving violence, for the police’s law-preserving function always also
entails the possibility of extending or restricting the application of the rules in exceptional
cases. Thus, the police are capable of reformulating the rules that they pretend merely to
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