Du rapport entre le droit et la violence

Abstract

In a deconstructionist perspective of law, it is necessary to question what is taken for granted, whether by legal professionals or by the general public. In the legal area, one of the commonly admitted beliefs is the one relating to the pacifying role of law, and of its violence-channelizing purpose. It is therefore necessary to question the relationship between law and violence. It appears that the two classical positions, the ontological opposition of law and violence on the one side, and the identity of law and violence on the other side, can be overcome by a third approach. Indeed, it is possible to apprehend this relationship as a reciprocal construction: on the one hand, violence is shaping the law by intervening in the legal actor’s interpretation of the normative statements; on the other hand, law defines what it considers to be violent by qualifying a situation as violent and therefore legally admitting it. Violence can thus create law by modifying a pre-existing interpretation of a statement, but it can also be conservative of the law by leading to the condemnation of a situation considered to be violent. In order to be able to rule on the change or on the conservation of an interpretative state, a general consensus between the legal actors is required. Indeed, the relationship between law and violence is a moving one, whether in time or space. It is nevertheless still necessary to relocate any analysis of the relationships between law and violence in the interpretative context at stake. This is fully illustrated in the field of (public) international law through the right to self-defence.

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