Constitutional Violence: Legitimacy, Democracy and Human Rights

By Antoni Abat I Ninet | Go to book overview

4
Legal Violence

INTRODUCTION

Constitutional violence is violence nonetheless; it crushes and kills with
a steadfastness equal to a violence undisciplined by legitimacy.1

This chapter analyses the relationship between violence, legitimacy and law, and constitutionalism from a theoretical perspective. The first issue that arises in the study of this question is why the people obey the law, and the role that legitimacy plays in voluntary compliance. The doctrine answers this question with various theories, such as the ‘habit of obedience’, ‘risk of punishment’ or the role of authority. After considering this issue, the chapter deals with the intimate and long-standing relationship between violence and law. The starting point is a definition of legal violence and the role that legitimacy plays in order to convert plain into legal, and therefore, legitimate violence. The open debate between Cover, Derrida, Benjamin and Sarat on one side, and Kelsen, Ross and Hart on the other, will initiate this section. Is violence part of the legal content or is it only a way to enforce or apply law? Is it an internal feature of law or an external phenomenon?

The description of the violent character of law begins with a historical analysis, starting from Hebrew law and going on to the role that violence played in the law’s understanding and conceptualisation in Athens and especially in Rome. I contend that it is necessary to analyse the evolution of law and violence to achieve a comprehensive description of legal violence. Concepts such as vis and vindicatio help us to understand what law was and what law is now, and how our norms are conditioned by violence. Because the final object of this book is constitutional violence, it is also necessary to pay special attention to the eighteenth and nineteenth centuries, when modern constitutionalism was born, conditioned by revolutions, blood and extreme violence. Since its origins, the constitution has been closely related to violence, and nowadays there is little or no exception, although violence is manifested in different conducts.

This chapter is built on the symbioses of constitution/violence, how legal violence is used by constitutionalism, why a constitution without legitimacy

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Constitutional Violence: Legitimacy, Democracy and Human Rights
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • 1- Introduction 1
  • 2- Sovereignty and Constitution 8
  • 3- Democracy 40
  • 4- Legal Violence 90
  • 5- Comparing Constitutional Violence 114
  • Afterword 171
  • Bibliography 179
  • Index 190
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