Judge and Punish
The Penal State on Trial
Geoffroy de Lagasnerie

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6

The Double Reality of Violence

A trial is not a show. It isn’t a ritual or a drama; it is not an awe-inspiring ceremony. But neither is it, as we may be initially inclined to believe, a peaceful, subdued way of dealing with illegal activity. A trial is one of the most intense apparatuses of social life: an individual watches his freedom, property, relationships, “reputation,” sufferings, and, in certain countries, his life be subjected to decisions made by a third party. In both form and content analytical theory must rise to that situation. It should be guided by one essential concern: to reveal the reality, and not a euphemistic vision, of what’s at stake and in so doing pave the way for critical thinking.

Telling the truth thus entails highlighting the fact that during a trial violence is everywhere; it is in every interaction, violence of procedure, violence of argument, of situation, of the law, and of dispossession. But this violence doesn’t represent a gap or flaw in the rationalization and bureaucratization of this site of power. There is an inherent violence in legal-rational procedures that we must consider in order to understand what we are.

That said, a critical theory of the state cannot limit itself to revealing the state’s violence or to identifying the ways in which that violence is exercised. If our thinking were to proceed in this way, we would be unable to grasp reality in its entirety, a reality that includes the way we experience it and that is itself characterized by a blindness (albeit partial) to the violence of the state. The violence of the court isn’t immediately perceptible. We either don’t see it at first glance, or we only glimpse it superficially and, in any case, not in its full intensity. The law and criminal procedure, operating according to their own specific modalities, inflict violence that we do not perceive as such. We need a theoretical approach that reflects on legal acts and on our condition as subjects of the law if we are to become fully conscious of the extent of this violence.

Our inability to immediately grasp the true workings of the state is neither self-evident nor obligatory. It stems from the fact that we’ve internalized images or ways of looking at the state that conceal its true workings. How can we explain the state’s odd ability to make violent actions appear nonviolent, or the fact that we don’t perceive those actions as they truly are? What paradigms are involved in this process of political blindness? What are the obstacles to establishing a lucid perception of the state? And, conversely, what conditions are necessary to formulate a critical theory of the relationships between the state and violence?

POLITICAL PHILOSOPHY

The first major obstacle to a satisfactory analysis of the state is political philosophy. There is a contradiction between an endeavor aimed at understanding the violence of the law and the perceptions constructed, imposed, and circulated by the tradition of political philosophy. In other words, we need to dismantle the established vocabulary of political thought if we wish to formulate a critical analysis of power.

The task that political philosophy has assigned itself can be defined as follows: imagine a way to describe the state without mentioning violence; ensure that our relationship to the law is neutralized; and offer a depoliticized perception of politics. It’s striking, for example, to observe the extent to which notions of violence, force, and coercion are practically absent from texts like John Rawls’s A Theory of Justice. Indeed, such a vocabulary appears to be completely foreign to the author.

This perspective, which is in the Kantian tradition and reappears in writings by Hannah Arendt and, more recently, Jürgen Habermas, presupposes that, at bottom, the state cannot be violent as a matter of principle.

The construction of a specific “political” sphere signifies the construction of an arena in which the law is developed through discussion, reasoning, and deliberation. Here, law is synonymous with majority (in other words, it is only in democracy that there is “law” worthy of its name). Political norms thus stem from procedures and rules that are formulated in accordance with logics of choice, reciprocity, or mutual recognition, such that these norms will be produced by the same individuals to whom they apply. The legal order aims to be universal, rational, and recognized. Application of the law may of course constitute a constraint and rely on a specific power. But those constraints and powers, which the subject recognizes as applicable to her or him as a citizen, are nonviolent.

Throughout the history of political philosophy, its impetus has consisted of grounding the law in processes presented as both rational and collective in order to guarantee its normative authority a kind of immunity from criticism. The idea is that if the law is based on collective reasoning, then the state is, in principle, nonviolent. The very idea of the state assumes that the state is nonviolent; when it acts in its official capacity, when it respects the procedures and rules on which it was founded or that it decreed, violence is theoretically impossible. Violence is arbitrary, associated with private, civil society—the very sphere against which the state positions itself as autonomous. Violence—vendettas, vengeance, and the like—predates the state or exists beyond it, in the private, civil world. By definition, violence is situated outside the law, such that any author who uses violence to define the state will find him- or herself accused of being incapable of conceptualizing the political sphere in its specificity. The state can only be described as violent if it betrays its principles—meaning precisely if it is dissolved as a state and stops acting in a legal way. In Between Facts and Norms Habermas takes on sociology, which he accuses of “undermining” the normativism of rational law by reducing it to nonlegal logics and the problematic of the state to one of domination. Sociology is presented as a discipline that analyzes the law as a form of imposition, not as a domain aimed at social integration through operations of mutual understanding carried out by communicating subjects. As a result, it bypasses the unique character of this sphere of action and discussion where politics and the law are constituted.1

This operation of fetishizing and promoting the state reaches its pinnacle in the distinction Hannah Arendt believes necessary between “power”—or “authority”—and “violence.” She considers power to be the manifestation of a collective will developed through deliberative operations, whereas violence refers to instrumental mechanisms of domination, constraint, and imposition.2 By linking politics and nonviolence, political theory attributes to the state an exceptional status. Within this framework the system of justice does not appear violent. Rather, it represents the application of a law based on discussion and collective agreement—a process that is recognized collectively as legal and has the right to be enforced. Like all citizens, the person being judged recognizes the legitimacy of the criminal procedure being applied to him or her because it incarnates the normal consequence, under a rule of law, of actions that run contrary to the law. From that perspective, being judged does not mean that violence is being exerted against me by the state; I am not being judged by an external power. The application of the criminal justice system represents my will as a rational and political being and demonstrates recognition of my status as a subject of the law.3 I am not the one judging myself, but I am consenting to a system of judgment and am recognizing the legitimacy of an institution that may eventually punish me. This is what allows Kant, for example, to maintain that far from being a victim of violence, the subject condemned to death is in reality, at that moment, being treated and recognized by the state as a subject of the law—in other words, that he or she is enjoying an ontological promotion.

To problematize the question of the violence of the order of law, we must break with the rhetoric of political philosophy, a mode of analysis that tries to establish the foundations of the law while removing the question of violence. To do so, it invokes mystifying fictions (deliberation, representation, contract, democracy) destined to immediately incorporate us into the system of law and transform us into citizens who both desire and recognize said system. In other words, the only possible critical theory of the state and violence is one based on social theory, the sole discipline that represents the state as it is, compared to political philosophy, which operates as a tool of mystification.

POLITICAL SOCIOLOGY

A collective analysis of the state and violence represents one of the great victories of the social sciences. Whereas political philosophy aims to disconnect the idea of violence from the state by separating the sphere of civil or private interactions from the public sphere, historical and sociological models, notably Norbert Elias’s classic essay “On the Monopoly Mechanism,” insist on the question of coercion: constraint is viewed as essential to understanding the birth and perpetuation of the state. The state emerges from the monopolization of violence by a specific group that imposes itself as dominant and universal. The form it takes stems from the concentration of violence in one central organization and the corresponding dispossession of other social or economic actors’ right to violence. The state establishes a military, policing, legal, and fiscal monopoly. It takes the right to enact violence away from other agents. Its dominance is therefore linked to both the unification and pacification of a given territory.

This description of the state as an authority that, by monopolizing violence, works to ensure the cohesion of a territory against anarchy, civil war, and constant sedition is an invaluable contribution. It represents a necessary point of departure that challenges the political vision of politics and the contractual or deliberative perception of the law by resituating the state inside a sphere of warring social institutions and by highlighting the arbitrary, contingent, and unique character of juridical mechanisms as well as their essential contribution to the consolidation of a given social and political order.

Despite this original intention behind a social science of the state, however, social and historical theory can also hinder reflections on violence—and actually, in their current form, they do just that. They tend not to conceptualize and problematize violence as such and in and of itself. This strange omission can first be explained by the fact that sociological and historical analyses are implicitly based on a narrative that depicts official violence as both secondary and necessary: the police and the justice system are meant solely to be responses to preceding violence. That response by repressive authorities—the adjective reveals the presupposed secondariness of state action in relation to forces that naturally emerge inside the social sphere—is meant to reestablish order and prevent private conflicts or perpetual cycles of vengeance from spreading. State violence is perceived as a counterviolence, or one form of violence against another, thanks to which peace, coexistence, and political unity are maintained in the face of war, anarchy, and political dissolution. While this, of course, remains a form of violence, it is a pacifying one. As a result, state violence isn’t perceived or treated as debatable; nor is it viewed as a reality that can be criticized, transformed, or diminished. The ends of state violence are seen as self-evident, which shields it from criticism.

The paradoxical difficulty encountered by the social sciences in problematizing official violence is amplified by a second element: Max Weber’s classic and prevailing definition of the state. This definition insists on the fact that we cannot accept the reductive view that the state uses violence in the same way as any other institution. It rejects the relevance of all frameworks that equate the state with rival private actors that evolve in the social world. The state is not an actor like the rest; the constraint it imposes is, in its case, recognized as legitimate. The state is an authority that successfully claims a monopoly of legitimate physical violence within a given territory.

This definition has followed a strange trajectory. It consists of two inseparable elements: violence and recognition. Yet it has prompted a quasi-exclusive focus on the question of legitimacy, while relegating violence to a position of secondary importance. According to this definition, the state’s unique character comes from its subjects’ acceptance of its coercive nature and their recognition of its legitimacy. As a result, the question of legitimacy has been framed as the fundamental problem in analyses of the state: How does a state legitimize its violence? Under what conditions is its coercion recognized, accepted, and interiorized, and why is it sometimes not? How are those crises of legitimacy essential to understanding political crises?

This rendering invisible of state violence can’t be dismissed as a bad interpretation or transmission of Weber’s text. Weber himself does the same thing. Let’s examine, for example, his “Politics as a Vocation,” in which he first seeks a way to define the state. He maintains that, from a sociological perspective, we can’t define the modern state by its aims or objectives (since other nonstate groupings may have had similar goals over history). The modern state should thus be characterized by a “specific means peculiar to it”—“physical force,” in other words. Weber cites Trotsky: “Every state is founded on force,” and notes, “That is indeed right,” before making his famous assertion: “A state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”4

Notions of domination, constraint, and violence occupy a central position in the definition of the modern state. Yet Weber will quickly eliminate them. They will be forgotten. Instead, Weber concentrates on another aspect: recognition of the legitimacy of violence. For the state to exist, “the dominated must obey the authority claimed by the powers that be.” Hence the questions that dominate his analysis: When and why do men obey? How do powers justify their legitimacy? Weber thus proposes his theory of three pure forms of possible legitimation: tradition, charisma, and legal rationality.5

Of course, considering reasons for submission is an invaluable exercise. But it’s nonetheless shocking that similar questions aren’t raised about violence. Here, we have a theory about ways in which the state can legitimize itself; so why do we not have a theory about forms of violence? States are distinguished from one another according to the justifications on which they are based; couldn’t the same be done according to the kind of violence they exercise or use? Why does violence seem to be regarded as a secondary concern in relation to legitimacy?

The idea of “legitimate violence” is what prompts a change in focus. The issue of the legitimization of violence takes center stage, to the detriment of the problem of violence. The field of analysis has concentrated on modes of legitimization—for instance, on the way in which states come to be recognized when they exercise their functions. The question of domination has become one of forms of legitimacy and legitimization. And violence is no longer constructed as an object of analysis in its own right but has become absent from sociological reasoning. What kinds of violence does the law exert? How? Against whom? By what means? These questions are ignored, as if violence was a nonobject, a form of inherently transparent action, which can’t be dissected or described. As a matter of fact, it’s only when the state acts in defiance of the norms on which it’s based and which legitimize it—police misconduct, inequalities in judicial processing, arbitrary exercises of power—that it is designated as “violent.”

DISMANTLING LEGITIMACY

I’m not suggesting that the formulation of a lucid theory about the state requires the rejection of Weber’s argument. But neither do I think it sufficient to simply supplement studies of legitimacy with research on official violence. Rather, I wonder if it wouldn’t be better to change the way we use the idea of “legitimate violence” and from there develop a completely different approach to this characterization of the state. If it’s true that the state successfully claims a monopoly of legitimate physical violence, then shouldn’t critical thought position itself laterally with respect to the stakes of legitimacy? Its task would then be to find instruments that identify, reveal, and demonstrate violence in places where we no longer see it. If violence is perceived as legitimate, if it is accepted, taken for granted, and therefore viewed as something that can’t be transformed or criticized, then the intellectual’s role is less to understand the reasons for that perception than to deconstruct it. We must take a step back from the problematic of recognition in order to reveal the state as it truly is and therefore allow individuals—meaning every one of us—to become aware of and viscerally experience the true violence exercised by the state.

It’s not by chance that both political philosophy and the social sciences impede the revelation and awareness of state violence. Political theory, originating with Kant, and political science, with Weber, share the same fundamental bias, which dooms them to act as epistemological obstacles: they view the state as a distinct entity, incommensurable with other entities that make up the social world. They examine the state differently than they would any other entity: studying its foundations in the case of Kantians, studying its modes of legitimization in the case of Weberians. These approaches share the same goal: to characterize the state’s specificity. For that matter, the fact that these two investigative models take the form of distinct and relatively autonomous disciplines or specialties within academia—political philosophy and political science—indicates widespread acceptance of the notion that the state represents a specific object, and not an object like any other that should be approached through shared methods and questions.

But by granting the state such specificity, by approaching it with specific tools and conceptualizing it in a specific way (in terms of legitimacy, foundations, etc.), we effectively become its prisoner; we give the state what it wants at the very moment we claim to be viewing it objectively. These are perspectives embedded within the state apparatus itself; they take for granted the state’s claims and assertions even while positing it as their object of study. Political theory and political science ratify the division that the state strives to make between itself and other actors in order to affirm its official authority. Indeed, rather than questioning, analyzing, or revealing that division, these two models take it as their point of departure. In the end, by granting the state the exceptional status from which it draws its authority, they do not so much take sovereignty as an object of study as they do participate in its functioning and constitution. Owing to their very mode of inquiry, these endeavors are less a matter of investigating the state than of symbolic statism. They treat the state with deference, respect, and attention, thus granting it, in the realm of language, the submission it demands. Political science and political philosophy form submissive and obliging positivities.

When Pierre Bourdieu reproached Weber for having focused, in his definition, on the physical violence of the state and having overlooked its symbolic violence, he meant precisely to draw attention to the fact that one of the state’s essential characteristics is to influence representations, transform perceptions, and shape our ways of seeing in an infraconscious manner.

The logic of the state consists of masking its actions and passing them off as something else. The state is the authority that successfully passes off its violent actions as nonviolent. Consequently, a critical theory of the state requires that a mechanism be invented that allows us to conceptualize the state without adopting its logic, or, as Bourdieu puts it, without “applying categories of thought [and perception, we might add] produced by the state.”6 We must reveal not only the state’s physical violence but also its symbolic violence, which allows it to impose its constraints without them being perceived as such by its victims—the subjects of the law. Just because a violent action is not perceived as such, or because it is legitimate, or because we consent to it, does not mean it disappears or is any less violent. On the contrary, it remains violent, but it is unrecognized as such. The scholar’s task is to dismantle that ignorance or misunderstanding in order to describe things as they truly are.

EXCEPTION

We know that there is a link between sovereignty and exceptionalism—that is, that the sovereign has the right to impose a state of emergency and suspend the law in the name of the protection and self-preservation of the political and social body. Sovereign power is defined by its singular capacity to emancipate itself from the law thanks to a special status that allows it to define what an exception is and to then invoke said exception in order to suspend the regular rule of law and therefore give itself (and only itself) the possibility of no longer having to follow it.7

Of course, suspension of the law occurs—but rarely and temporarily. This possibility defines the structure and shape of sovereignty, though in reality, it remains, by definition, rare—in other words, exceptional.

Nonetheless, when it comes to language, this “exceptional” status appears to be permanent and structural. The state has the capacity to ensure that we speak differently of it than we do of private actions, problematize it in a specific way, and use specific words and terms to designate what it does. This way of excepting the state, of treating it differently, is proof of the unconscious and spontaneous recognition we accord it. Here, the political issue is linked directly to the linguistic one in that reserving a vocabulary specific to the state equates to validating its claim to incarnate a superior, transcendent, and unassailable authority. We are thus inclined to accept its claim to legitimacy and its exceptional nature, meaning we view it using categories created by the state itself.

In his seminar on the death penalty, Jacques Derrida adheres to that system when underlining that, in his opinion, we can’t understand the logic of the death penalty unless we reject a certain abolitionist discourse that insists on the sacred nature of life. We tend, maintains Derrida, to oppose the death penalty in the name of “respect for life” and the “right to life.” If the state forbids murder, and considers it to be the ultimate transgression, how can it then claim the right to kill?

According to Derrida, this argument is overly facile. Most of all, it is unconvincing. (Note that Derrida is clearly not arguing in favor of the death penalty: on the contrary, he explores what it means to maintain an abolitionist discourse.) That is because, insists Derrida, criticizing the state because it carries out actions forbidden to individuals reflects a misunderstanding of political logic. The very conception of the state supposes its exceptional character. It can detain people, whereas individuals can’t; it can force people to surrender a part of their property (through taxes), whereas individuals can’t (that would be theft). Consequently, the interdiction to murder in no way contradicts the existence of the death penalty; if it did, the ban on illegal confinement could just as easily be used as an argument against imprisonment.

According to Derrida, critical discourse about the death penalty can only become solid and consequential if it is transformed. It must acknowledge the fact that the death penalty doesn’t oppose life and that therefore it is pointless to challenge it with the “right to life” argument. In reality the death penalty stands in opposition to murder in the same way that prison does to arbitrary detention. The law can therefore state simultaneously, and without contradiction, “thou shalt not kill” and “if you commit such an act, I will kill you,” because it’s neither the same death nor the same action.8 There are therefore two different and incommensurable ways to take a life: the first—murder—is arbitrary and anarchical; the second—the death penalty—is regulated, organized, and legal. There is “no relation of affinity, in this logic, between murder and the death penalty, between murder outside the law and the legal death penalty.”9 Abolitionist discourse must confront that difference and grasp the death penalty in its singularity if it wants to avoid formulaic rhetoric and be both effective and credible.

The complexity of the abolitionist discourse and the cleverness of arguments in favor of the death penalty highlighted by Derrida are undeniably important and should be taken into account. But I find myself wondering whether it’s possible, and even necessary, to say precisely the opposite of what Derrida says. We can question the pertinence of the idea that it’s essential to acknowledge a difference between state actions and private actions, thus ensuring that critical logic cannot employ the same rhetoric to designate actions occurring in these two spheres. This is because that approach assumes recognition of the state, the law, and any divisions they decree at the very moment when we should, in fact, be trying to understand these institutions’ operations and violence. This mode of analysis presupposes sovereignty, the sovereign exception, and the state’s right to undertake actions forbidden to us. It is a paradigm that applies sovereign-created categories to the sovereign power itself and may consequently legitimize the actions of this power. In this case language masks reality by behaving as if the state acts differently than it really does.

But isn’t it precisely by refusing the state’s exceptional nature, by questioning the logic according to which state actions are of a different nature than individual ones, that we can truly construct a critical discourse of the criminal justice system and the state in general? Simply put, this approach would entail stating the truth—what the state actually does. From there we would truly be able to examine what is permissible or necessary and what isn’t. In other words, the approach suggested here isn’t intended to destroy or reject the state, or to invalidate its existence and actions, but rather to find ways to avoid basing our thinking on mystifications and to elucidate what the state is and does in order to evaluate what is not acceptable and, on the contrary, what is.

SIMPLIFY AND NAME

It’s vital to challenge the way of thinking about the state that we find in political philosophy (Arendt and Habermas), political science (Weber), and, more recently, the Derrida seminar cited above with another approach that breaks with the political use of language and treats the state like any other actor, thereby demystifying it.

One of the rare writers to have proposed an understanding of the state free of error or ignorance and who can therefore serve as our guide and model, was Friedrich Nietzsche in his analyses of the logic of remorse and the guilty conscience. In On the Genealogy of Morality Nietzsche effectively challenges the idea that punishment can provoke remorse deep down in a criminal’s soul. Justice wants to produce remorse. It is intended to reform the delinquent by sowing a guilty conscience, encouraging him to reform himself and to normalize his behavior. The “popular conscience” also desires punishment, which it views as an instrument destined to arouse a “sense of guilt” within the transgressor. In other words, one of the most common justifications for punishment is its “moral utility.” But according to Nietzsche, that view is false; historically, it has been proven wrong. Criminal procedures and punishments do not produce remorse:

Punishment is alleged to have the value of awakening the feeling of guilt in the guilty party, in it is sought the actual instrumentum of the psychical reaction called “bad conscience,” and “sting of conscience.” But in doing so we desecrate reality and psychology even for today: and how much more so for the longest period of human history, its prehistory! The genuine sting of conscience is something extremely rare precisely among criminals and prisoners; the prisons and jails are not breeding grounds where this species of gnawing worm prefers to thrive:—on this all conscientious observers agree, who in many cases abandon such a judgment reluctantly enough and against their deepest inclinations.10

So Nietzsche asks: Why doesn’t justice provoke remorse? Why doesn’t punishment cause regret and a guilty conscience? Why is there an antithetical relationship between the logic of punishment and the logic of remorse? For, on reflection, it appears evident that the act of punishment can ultimately only provoke the opposite of a guilty conscience. Indeed, its sole effect may be to harden criminals. The belief that punishment will lead criminals to improve themselves and renounce violence is a delusion: it overlooks the violence of criminal procedures and punishments, which ensures that the state isn’t a virtuous example to be imitated. Why not? Because the state treats criminals in the same way that criminals themselves would—implying that their actions are not in themselves reprehensible, that in fact there is nothing about which the criminal should feel guilty. The state responds to crimes with actions that are not only comparable but also similar and identical to them in every way. As a result, criminals are unable to understand why and for what they should reproach themselves:

But if we think instead of those millennia before human history, then we can judge unhesitatingly that precisely through punishment the development of the feeling of guilt has been most strongly hindered—at least with respect to the victims on whom the punishing force vented itself. For we should not underestimate the extent to which the criminal himself is hindered by the very sight of judicial and executive procedures from perceiving his deed, the nature of his deed, as reprehensible in itself: after all, he sees the exact same kind of deeds practiced in the service of justice and then approved, and practiced with good conscience: thus spying, deception, bribery, setting traps, the whole sneaky and underhanded art of the police and prosecutors, then the robbing, overpowering, slandering, taking prisoner, torturing, murdering as they unfold in the different kinds of punishment, on principle and lacking even the excuse of emotion—all of them by no means actions in themselves repudiated and condemned by his judges, but only in a certain respect and practical application. “Bad conscience,” this most uncanny and interesting plant of our earthly vegetation, did not grow from this soil.11

This Nietzsche text provides an exact counterpoint to Derrida’s argument. It relies on a symbolic coup d’état and a reappropriation of language and of our nominative ability that is based on rejecting perceptions the state attempts to impose. By adopting Nietzsche’s approach, we can see that, contrary to Derrida, and therefore to the theses of Weber and Arendt, it is impossible to understand the state’s actions unless we reject its own efforts to conceal them, which entails our acceptance of the idea of an equivalence or, better still, a similarity between state actions and private actions. Rather than saying that the state “sentences to death,” we must say that it kills; that it doesn’t arrest individuals but “abducts” them; that it doesn’t imprison people but “wrongfully detains” them; that it doesn’t force them to pay fines but “robs” them.

A notable example comes from an excerpt from the Fourteenth Amendment to the United States Constitution: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.” This text is somewhat of a lie, which conceals and glosses over reality. It isn’t enough to say that the state “deprives” us of life, liberty, or property: it kills us, confines us, and steals from us. The fact that it does so in accordance with the law, legally, in no way diminishes the reality of what is occurring and the violence of the actions taken. Viewing the state objectively thus requires a translation. Telling the truth would entail revising the amendment as follows: “No state shall kill, confine, or steal without due process of law.” Only such wording would express the reality of the repressive state apparatus (for that matter, any study of punishment, sentencing, and policing that does not begin with a transparent vision of the state will be condemned to founding itself on mystification and unable to present itself as rational).

And incidentally, doesn’t the state say as much? At times, in its laws, the state doesn’t appear to be hiding its actions. Once again, everything seems to indicate that we wear blinders and lie to ourselves. After all, the state affirms its practical commensurability with other social actors. Take, for example, the text of article 224-1 of the French penal code on abduction and illegal restraint: “The arrest, abduction, detention or imprisonment of a person without an order from an established authority and outside the cases provided by law is punished by twenty years’ criminal imprisonment.”12 In other words, the act being explicitly punished is not the abduction, detention, or imprisonment of a person but the act of doing so without the state’s permission. Put another way, not only does the state abduct individuals; it says that it does.

Seeing and sensing the state as it truly is requires, paradoxically, that we dissolve it as an object. A lucid perspective necessitates that we restore the state’s banality by treating it as something other than itself. This leads to the thought that perhaps Elias’s approach to the state is superior to Weber’s. Elias essentially compares the state to a protection racket: “A protection racket organized by gangsters, such as you have in Chicago, is not so very different from the state.”13 I understand the objection of Bourdieu, who reproaches this definition for its reductionism and for not noting that the state is not exactly perceived as a protection racket.14 But to be fair, successfully sensing and revealing state violence by challenging actors’ established perceptions should be both the objective and outcome of any critical sociological analysis. Real thinking can be defined as the refusal to believe that an initial and popular perception of the world is necessarily true.15 The theorist’s role is not to recreate actors’ spontaneous experiences of the world or to understand the reasons behind them; doing so would merely strengthen established perceptions. On the contrary, the theorist should inflict violence on actors, disrupt them, and find ways to challenge their frameworks and visions of the world. If actors recognize themselves in a given analysis, that analysis only consolidates and preserves what has already been established. And this is a problem.

Reducing the state to what it is, naming things as they really are, and borrowing a common language to conceptualize the state allows us to avoid political mystifications and deconstruct entrenched notions. Here, criticism implies criticism of the state, or criticism of the state’s claim to be what it is. Any analysis of violence and the law must refuse the autonomy claimed by politics; it must employ a nonpolitical vocabulary to contextualize and understand politics. If we hope to challenge existing modes of governance, we can’t continue to be governed by the language and categories produced by the state.

This is why I suggested, in my book Michel Foucault’s Last Lesson, that it is possible to find a critical dimension at work in the neoliberal paradigm and in the way in which its theorists use economic reasoning to think about the state. Economics applies the same categories to the state that it uses for all social actors; it accords them no special treatment. It understands the state through the same concepts of markets, supply and demand, cost/benefit calculations, and utility. Neoliberalism refuses to recognize the state as special or exceptional, viewing it as one reality among many, commensurable to others. It applies an analytical framework to the state that functions for all other institutions. The economic perspective dissolves the exceptional character of the state and allows us to consider it in a demythologized form.

This method has a wider applicability: regardless of its subject, the construction of an analysis that reveals the true functioning of the social world requires a break with the self-fabricated images of activities and the self-established representations of actors. The social world is built of preconstructed facts, and this is how we perceive it. Critical thought shouldn’t strengthen that preconstruction but, on the contrary, deconstruct it and consider ways in which to reveal its deceptive form.16

Incidentally, this is one of the main lessons we can take away from the attitude informing the approach of Bourdieu. Throughout his work—and, paradoxically, he was reproached for this—Bourdieu used the vocabulary of economics to address the different activities that make up the social world: he questioned religion, language, culture, and even literature in terms of markets, capital, supply and demand, interest, competition, revenue, and profit. Thinking of things in this way strips them of any unique or special status they may claim or foreground; it repositions them in a general framework and therefore has a simultaneously revelatory and disenchanting effect that allows us to see them in a new light. Reductionism becomes the point of departure for a lucid analysis of the social world.

To return to the main subject of this chapter: I am, of course, aware that using plain language to refer to the state (“theft,” “abduct,” “kill,” “confine”) can shock and upset. We’re not used to seeing these terms in this context. And such designations may appear to betray an inordinately antistatist impulse. This is not the case. But we would likely do better to invert the problem and to ask what mechanisms of dissimulation and obstruction are at work that prevent us from feeling the violence of the state in all of its reality.

The scholarly approach aims to give us the means to become aware of the powers to which we are unconsciously exposed. It should enable us to clearly evaluate how tolerable a situation is or—on the contrary—how intolerable and, therefore, how much it must be transformed. To be sure, saying what the state is and showing what it truly does fosters and gives new life to a resistant attitude. But it also, and above all, claims our right to a certain intransigence. Given the sway that the legal-political order holds over our lives, it’s normal to go as far as possible when taking a hard look at its operations. It is on this condition that we equip ourselves with the requisite tools for reflecting on the reality of the state and thereby establishing the rational foundations on which to base both the demands that we can rightfully make of it and the powers that we may or may not be ready to accord it.

Notes

1. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1996), 56.

2. Hannah Arendt, Crises of the Republic (San Diego: Harcourt Brace, 1972).

3. See Frédéric Gros, “Les quatre foyers de la peine,” in Punir en démocratie (Paris: Odile Jacob, 2001), 40.

4. Max Weber, “Politics as a Vocation,” in Max Weber: Essays in Sociology, ed. and trans. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), 77.

5. Ibid., 79.

6. Pierre Bourdieu, “Esprits d’État,” in Raisons pratiques (Paris: Seuil, 1994), 101.

7. Jacques Derrida, The Death Penalty: Volume I, ed. Geoffrey Bennington, Marc Crépon, and Thomas Dutoit, trans. Peggy Kamuf (Chicago: University of Chicago Press, 2014), 85–87; Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005).

8. Derrida, The Death Penalty, 1:9–14.

9. Ibid., 14.

10. Friedrich Nietzsche, On the Genealogy of Morality, in Beyond Good and Evil / On the Genealogy of Morality, trans. Adrian Del Caro, vol. 8 of The Complete Works of Friedrich Nietzsche (Stanford, CA: Stanford University Press, 2014), 269–70 (second emphasis added).

11. Ibid., 270 (some emphases added).

12. Translation source: www.legifrance.gouv.fr (emphasis added).

13. Quoted in Pierre Bourdieu, On the State: Lectures at the Collège de France, 1989–1992, ed. Patrick Champagne, Rémi Lenoir, Franck Poupeau, and Marie-Christine Rivière (Cambridge: Polity, 2014), 129; see also Norbert Elias, The Civilizing Process (Oxford: Blackwell, 2000).

14. Bourdieu, On the State.

15. See Joan W. Scott, “The Evidence of Experience,” in Critical Theory 17, no. 4 (1991): 773–79.

16. See Didier Eribon, La Société comme verdict (Paris: Fayard, 2013).