Theories of Legal Violence and Agamben’s Legal Theory

Question 1

Legal and structural violence

Answer 1

Legal Violence: Laws put in place that cause harm to others (usually marginalized groups)
- Ex. Vagrancy laws, laws targeting indigenous groups
-Legal violence = sanctioned violence
- Police - Public safety results in legal violence by police officers
- Violence is central to law, not exception but the norm, not only a product but also its
vector
- Law deflects questions of it’s innate violence, makes it seem as if violence is outside of the law
- State has a monopoly on the use of power
- Individuals cannot use violence, law sees violence in the hands of individuals as dangerous
- When you create a state it is inevitably a violent process
- Law making vs. law-preserving violence
- When state cannot do so through peace, they do it through police (violence)

Structural violence
- While Galtung’s original framing of structural violence — any constraint on human potential due to economic and political structures — has been subjected to much
legitimate analysis and critique, there is great merit in theorizing structural violence or violence as a social practice as a way to capture the invisible, entrenched, normalized, regularized, and ubiquitous social practices and structures that contain and constrain the lives of individuals and groups
- Notions of structural violence or violence as a social practice provide us with an entry point to theorize contexts of elitism, ethnocentrism, classism, racism, sexism, heterosexism, and even colonialism.

Question 2

Colonial and racial governance

Answer 2

• Assessing ongoing colonialism as a biopolitical form of racial governance requires a linking of legal and structural violence to symbolic forms of representation
• Racial governance: a discourse of respectability and degeneracy shrouded in a language of cultural difference, a narrative about the pervasive inability of Aboriginal peoples to regulate themselves and cope with the pillars of liberal life (property, education, health), and a colonial project of relocation and a disavowal of Aboriginal claims to the land.
• Aboriginal and racialized communities are suffering the effects of pervasive health problems, disease, and death as a result of contaminated water

Kashechewan:

• During the evacuations, residents of Kashechewan held signs that read: “To Jim Prentice [then Minister of Indian Affairs and Northern Development]: Take a good look at us. This is why we want a new location (higher ground)”. In July 2007, the government decided that it would not relocate Kashechewan because the relocation “would have been too costly”
• In recounting the Kashechewan story, three narratives converge: the production of a water crisis, an epidemic of disease and infestation that accompanies it, and the slow destruction of a community
• Ongoing colonialism is attenuated through the ways in which we conceive of and respond to the problem of water contamination and crisis, and through the legal and moral frames of compensation, humanitarianism, and responsibility.
• There is also a long history of colonial and racial governance in Canada that requires practices of containment framed with narratives of disease and nation

Question 3

Legal categorization

Answer 3

• Legal categorization can create a state of exception
• Ex. The Indian act, Indigenous people (Murdocca)
• the Indian act is a biopolitical
• Separate from the rest of Canadian citizens

Question 4

Law-constituting/law-making and lawpreserving violence

Answer 4

• Linking Agamben and Benjamin: “a sovereignty entity (eg. The state) emerges by declaring a universal and inviolable law, but at the same times excepts itself from that law…modern law is the product of arbitrary law-making violence-not a consensual (Hobbesian or Lockean) social contract
• “All the natural ends of individuals must collide with legal ends if pursued with a greater or lesser degree of violence”
• The state maintains the right to use violence
• When we use violence we threaten the state’s sovereignty
• “the state has monopoly on violence” (weber)

Law-making and Law-preserving violence
- Cannot be separated
- Police-use both lawmaking and law-preserving violence
- Police violence is law-making
○ Asserts legal claims under the state’s legislation
- Law preserving comes at the disposal of the state
○ Police act without cause/authority to do so, but act based on presumptions
- It is the outcome (one that proves their presumptions) that legitimizes their basis of action
- Police are asserting state sovereignty

Question 5

States of exception

Answer 5

• State of exception is a biopolitical technique central to sovereignty
• “Sovereign is he who decides the exception” (Schmitt, 1921)
• “The state has monopoly on violence” (Weber)
• The Sovereign takes a role to remove individuals from state (decides who is in the state of exception) “included exclusion” (Agamben)
• State of exception is outside the state, its included because the state requires it for the definition of the state (made by the sovereign).
• State of exception is used by the sovereign to regulate citizens
• A zone where law is suspended indefinitely
• An example of this is racialized people in society
• “Included Exclusion”
  
  • the life of citizens cannot be contained in/by the state

Agamben

• Homo Sacer: Exiled from society as punishment (Stripped from their Bios) → citizenship taken away. Because of this, they are just “Zoe” (can be killed, society doesn’t care)
• Agamben’s observation that the Ancient Greeks: bios (the form or manner in which life is lived) and zoe (the biological fact of life).

- Bios: → Political life
→ Humans are sociable, rational
→ Self-governing
→ Purpose of being human
→ Uniquely human

- Zoe: → Animal life
→ Being home based on us being animals
→ Sacred life, life itself
→ Things that make us exist
→ Private sphere of the home
→ Low people on the hierarchy

Question 6

Logic of sovereignty

Answer 6

Logic of sovereignty: a sovereign entity (e.g., the state) emerges by declaring a universal and inviolable law, but
at the same time it excepts itself from that law building
- With every sovereign ban, bare life is abandoned to a brutal state of nature, a biopolitical domain from which law excepts itself

Sovereignty (and violence)
- Weber’s definition of the state
○ “ Ahuman community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory”
○ Links state legitimacy to violence and territory
- Liberal law concerned with drawing boundaries
○ boundaries are partly internal to law
- “Sovereign is he who decides on the exception” (Schmitt, 1921)
○ War Measures Act
○ Bringing the state of exception into law
○ Agamben’s jumping off point
- the state of exception is inherently paradoxical
- neither fully outside nor inside the rule of law
- “Included Exclusion”
the life of citizens cannot be contained in/by the state

Question 7

Bare life

Answer 7

• Because the law is suspended, life is reduced to bare life
• Relates to his theory on homosovereign
• Forcible ejection from the state
• With every sovereign ban, bare life is abandoned to a brutal state of nature, a biopolitical domain from which law excepts itself