Fragmented State Repression in the Transnational Constellation

In a seminal essay on the ‘Critique of Violence,’ Walter Benjamin introduces a differentiation between ‘lawmaking’ and ‘law-preserving violence,’ whereas ‘violence’ is broadly understood in the sense of the German term of Gewalt. During a narrative spiral of escalation, Benjamin presents a number of contradictory scenarios in which either law is used to radically transform order (the revolutionary general strike and war) or the differentiation between lawmaking and law-preserving violence collapses entirely (death penalty and police). Riding on Benjamin’s critical heuristic, the paper attempts to rethink the critique of violence on a different scale, i.e. with regard to a transnational legal order. What happens to the differentiation between lawmaking and law-preserving violence when normativity undergoes a process of globalization and fragmentation? While scholarship in law undergoes vibrant debates on the fragmentation of international law and the pluralization of normativity in the course of an increasingly transnational legal process, the paper argues that these debates tend to misconceive the role of the state in the transnational constellation and are too quick in doing away with the state. By contrast, the paper suggests that ‘the state’ for being deeply involved in the related normative reconfigurations cannot be addressed as an ‘on/off’ concept. As some postcolonial and/or Marxist scholars have argued, the state reemerges transnationally, i.e. as a ‘transnational state’ (Robinson) or even a ‘nascent world state,’ which operates on behalf of a ‘transnational capitalist class’ (Chimni). Instead of fragmentation in the sense of normative pluralism, we can perhaps observe new types of global constitutionalism, i.e. pronounced tendencies of a merging between, somewhat paradoxically, fragmentation of legal normativity, on the one hand, and a new type of political and economic imperialisms, on the other. It is here that the Benjaminian notion of Gewalt may serve as a productive thinking tool for the mapping of these normative reconfigurations.