Reflections On Violence

Reflections on Violence, Law, and
Humanitarianism
Talal Asad
In Sources of the Self, Charles Taylor traces the sensibilities that are
central to the modern individual to their Christian (especially Protestant)
roots. Prominent among them is universal benevolence, a virtue closely
connected with a new concern with psychological interiority:
One thing the Enlightenment has bequeathed to us is a moral impera-
tive to reduce suffering. This is not just a sensitivity to suffering, a
greater squeamishness about inflicting it or witnessing it. It is true
that this undoubtedly has occurred, as we can see it in a host of ways,
especially in the softening of penal codes which the Enlightenment
helped bring about, partly under the influence of Beccaria and Ben-
tham. But beyond this, we feel called upon to relieve suffering, to put
an end to it. . .. We routinely grumble about our lack of concern and
note disapprovingly that it requires often spectacular television cover-
age of some disaster to awaken the world’s conscience. But this very
critique supposes certain standards of universal concern. It is these
that are deeply anchored in our moral culture.!
It is this moral culture, it is suggested, that provides the motivation for
varieties of humanitarian action in the modern world, including interna-
tional rules for military engagement, the forcible ending of state-led atroc-
My thanks to the following friends for comments on earlier versions of this piece: Hussein
Agrama, Gil Anidjar, Ayca Cubukeu, Abou Farman, Charles Hirschkind, Mahmood Mamdani,
Nate Roberts, and Anne Stoler. Unless otherwise noted, all translations are my own.
L. Charles Taylor, Sources of the Self: The Making
of Modern Identity (Cambridge, Mass.,
1981), p. 394
Critcal Inquiry 41 (Winter 2015)
© 2015 by The University of Chicago. 0093-1896/14/4102-0003810.00. All rights reserved.
390
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Critical Inquiry / Winter 2015 391
ities, and the humane treatment of prisoners. The assumption in

narratives about the elimination of human suffering is that moral progress
is advanced when the violence of military conflict and dictatorial repres-
sion gives way to the nonviolence of international diplomacy and demo-
cratic politics, when harsh physical punishment of convicts gives way to
humane confinement, when war gives way to peace.
The story of the birth of universal benevolence as a specifically modern
virtue, the moral imperative to reduce suffering because life is sacred, is not
unfamiliar.’ But attitudes in countries that are heirs to what Taylor calls the
“Enlightenment . . . imperative to reduce suffering” are, of course, diverse
and complicated. They are diverse in the sense that people may evince
horror at what they see or remorse at what they have done; they may also
express feelings of inadequacy for being unable to prevent some terrible
suffering or express feelings of complacency at supporting a virtuous
cause. They are complicated because they may articulate pleasure or grat-
ification at the cruel punishment of people they have learnt to fear and hate
and despise, or several of these emotions may contend within the same
person. Of course the “standard of universal concern” is not therefore
meaningless. I simply stress the need to enquire into how people react to
that standard, how they employ it, and what emotions help constitute it.
Butbefore I try to do this I want to bring out briefly some contradictions in
our understanding and practice of benevolence.
Steven Pinker has recently argued that the modern world has become far
less violent (more civilized) than at any time in history.* True, there may have
been massive destructions of human beings in the twentieth century, but pro-
portionately these were less significant than the violence of premodern times
when human populations were geographically less dense. He explains this
2. However, as Uday Mehta has pointed out in his interpretation of Mahatma Gandhi’s
political practice, violence used by the state in pursuit of reformist idealism in peace may not be
as dramatically evident as war is, yet in both there is the destruction of human lives
accompanied by a rhetoric of noble ends. Mehta sees Gandhi’s concept of nonviolence (ahinnsa)
not simply as the principle of abstention from violence but as a sustained spiritual project: the
care for the self that involves entering into the experience of violence as a precondition for
willing abstention from it. In that way, says Mehta, Gandhi sought to break entirely with the
West's conception of war (violence) and peace (the absence of violence) as absolute opposites;
see Uday Singh Mehta, “Gandhi and the Common Logic of War and Peace,” Raritan (Summer
2010): 134-56.
3. See Lynn Hunt, Inventing Human Rights: A History (New York, 2007).
4. See Steven Pinker, The Better Angels of Our Nature (New York, 2011).
TALAL ASAD is a distinguished professor of anthropology at City University of

New York.
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392 Talal Asad / Reflections on Humanitarianism
decline in human violence in terms of the growth in refined feelings attribut-

able to the Enlightenment’s commitment to reason and to the gradual devel-
opment of bodily and emotional self-control—to what Norbert Elias called
“the civilizing process” —as well as to the emergence of the state.’ Thus the
modern state is seen not only as the crowning achievement of liberal democ-
racy but also as the basis of a wealthy civilization founded on capitalism in
which general concern for human wellbeing can flourish. This is consistent
with a widespread belief that, since the end of the eighteenth century, peoples
in Euro-America have become increasingly free and humane because freedom
and humanity naturally reinforce each other.
But the conditions of benevolence are more complicated than this story
would suggest. Take the modern US prison system, for instance. What are
we to make of the fact that the US correctional system, with all its cruelty,
contains a far higher proportion of prisoners to the total US population
than it ever did before?® Pinker thinks the very high rate of African Amer-
icans in prison is evidence of a decivilizing process (the felons come largely
from dysfunctional families) and sees the prison system as involving the
necessary incarceration of actual and potential perpetrators of violence.
James Whitman has, however, a provocatively different view: It is precisely
the political culture of liberal democracy, he declares, by which this mod-
ern statist form of violence is to be explained. Democratic politics enters
more directly into the shaping of criminal legislation in America than it
does in Europe largely because politicians who seek election want to be
seen as being tough on crime. By contrast, democratic politics doesn’t
permeate the European criminal justice systems because framing the law is
largely a matter of bureaucratic expertise and because judges and prosecu-
tors are not publicly elected in European countries as they are in the US.”
Hence the paradox: the more pervasive the principle and practice of polit-
ical freedom in liberal democratic society, the greater the probability of
punitive vindictiveness.®
5. See Norbert Elias, The Civilizing Process: Sociogenetic and Psychogenetic Investigations
(Malden, Mass., 2000).
6. For an important account of the violence inflicted on young African Americans before,
during, and after their imprisonment, see Michelle Alexander, The New Jin Crow: Mass
Incarceration in the Age of Colorblindness (New York, 2010).
7. See James Q. Whitman, Harsh Justice: Criminal Punishment
and the Widening Divide
between America and Europe (New York, 2003) and “What Happened to Tocqueville’s
America?” Social Research 74 (Summer 2007): 254.
8. One might add to this difference from Europe another: the presence in the US of private
prisons whose interests are represented in Congress by paid lobbyists who are able to influence
legislation in a way that increases the scope of criminal behavior. That legislation increases the
number of felons whose incarceration in the private prison system increases the latter's
profitability.
In sum, it may not be the benevolent values of “our moral culture” that
matter but the contrary work done by legal disciplines and political struc-
tures. Whitman’s overall explanation seems to me persuasive, although
some might ask why penal ferocity didn’t make itself evident in the earlier
period of America’s history when, according to Whitman, criminal justice
was less violent. The answer, perhaps, is that the major objects of punitive
violence in that period were slaves and Indians, two classes of people who
were regarded not only as a danger to settler freedom but also as an obsta-
cle to the growth and flourishing of civilization itself. Liberal democracies
may not now use violence against one another, as Pinker and others have
maintained, but that doesn’t prevent their populations from using vio-
lence against their own “minorities” (African Americans, East Asians, La-
tinos, and Native Americans) as well as—directly or by proxy—other
states.”
The Enlightenment varied, of course, from one country to another, and
it included religious as well as secular currents; it was also internally con-
tradictory.” This should alert one to the possibility that what the modern
world has inherited from the Enlightenment is not simply the moral stan-
dard that universal suffering should be reduced but a complex genealogy
that is partly older than the eighteenth century in which compassion and
benevolence are intertwined with violence and cruelty, an intertwining
that is not merely a coexistence of the two but a mutual dependence of each
on the other. In this context one might recall Michel Foucault’s observa-
tion that sadism was publicly recognized, theorized, and practiced in the
Enlightenment." Indeed, many writers in the eighteenth century sought to
describe and explain the “natural” attraction to horror that they believed
was a general human condition.* Perhaps Edmund Burke’s account of the
9. See Aziz Rana, The Two Faces of American Freedom (Cambridge, Mass., 2010), an
impressive study that traces the imperial conquest of Indian territory (the appropriation of land
as property) and, more broadly, the shifting connections made, violently, between freedom
(self-rule and equality among citizens) and unfrecdom (the exclusion and subjection of alien
peoples) in US history.
10. Some of the Enlightenment’s diversity is reflected in What Is Enlightenment? Eighteenth-
Century Answers and Twentieth-Century Questions, ed. James Schmidt (Berkeley, 1996).
11.” See Michel Foucault, Histoire de la folie Idge dlassique (Paris, 1972), p. 381.
12. The Earl of Shaftesbury, writing of what he calls unnatural affections, speaks of “that
unnatural and inhuman delight in beholding torments, and in viewing distress, calamity, blood,
massacre and destruction, with a peculiar joy and pleasure.” Such passions, he says, are found
among many—those who are uncivilized or those who, “in some degree, belong to such
tempers as have thrown off that courteousness of behavior which retains in us a just reverence
of mankind, and prevents the growth of harshness and brutality” (Anthony Ashley Cooper, An
Inquiry Concerning Virtue or Merit [Heidelberg, 1904], p. 108). These passions are therefore
“unnatural” in the sense that they have not been disciplined by sentiments that lead men either
to public or to private good.
sublime, in which he traced the ambiguous connections between terror

and delight, was the most famous.* At any rate, unlike Whitman, Enlight-
enment thinkers saw contradictory motivations and outcomes as rooted
not in politics but in the psychological and physical makeup of human
beings. So my point here is not the banal one that Enlightenment thinkers
did not overlook emotion in favor of reason (we know that many of them
wrote at length about the centrality of emotion to social life); it is that
many of them had a more subtle view of sympathy than some modern
humanitarians have.
In what follows I want to explore humanitarianism that uses violence to
subdue violence and some of the paradoxical ways it is played out emo-
tionally and conceptualized in modern law and morality. I ask: Why is
modern morality most evident in expressions of aversion rather than ap-
proval? How, precisely, do benevolence and empathy (that moderns
should cultivate) combine with cruelty and violence (that moderns should
avoid)? What gives the modern project called humanitarianism its moral
impetus? What accounts for the modern expressions of horror at crimes
against humanity — distinct, that is, from the crime of murder?
In the introduction to their valuable collection In the Name of Human-
ity, llana Feldman and Miriam Ticktin observe: “While people may dis-
agree on the source of its power, almost everyone agrees that humanity
should be considered sacred.”* It is when the sacredness of humanity is
violated that feelings of horror are generated and calls are heard for mili-
tary intervention in the non-Western countries where atrocities are taking
place. This is what I want to explore in what follows.
Humanism, Humanity, Humanitarianism

Much has been written on concepts of the human as the active subject of
modernity, on humanism, humanitarianism, and the humanities. But of
13. Thus Burke:

there is no spectacle we so cagerly pursue, as that of some uncommon and grievous calam-
ity: so that whether the misfortune is before our eyes, or whether they are turned back to it
in history, it always touches with delight. This is not an unmixed delight, but blended with
no small uneasiness. The delight we have in such things, hinders us from shunning scenes of
misery; and the pain we fecl, prompts us to relieve ourselves in relieving those who suffer;
and all this antecedent to any reasoning, by an instinct that works us to its own purposes,
without our concurrence. [Edmund Burke, A Philosophical Enquiry into the Origin of Our
Ideas of the Sublime and Beautiful (1757; New York, 1990), p. 43]
In Burkes vocabulary delight is not a synonym for pleasure but the name of a more
complicated affect.
14. Ilana Feldman and Miriam Ticktin, “Introduction,” In the Name of Humanity: The
Government of Threat and Care, ed. Feldman and Ticktin (Chapel Hill, N.C., 2010), p. 1.
the innumerable books dealing in one way or another with humanity,

virtually all take its sense for granted—a large, all-embracing category
whose members have a single essence. There are introductions to the study
of collective forms of life (Humanity: An Introduction to Cultural Anthro-
pology), theological reflections (The Humanity of Christ), but virtually
nothing as far as T know that traces the historical formation of the concept
of humanity as a collective subject. And yet it is in the name of humanity
that the modern project of humanitarianism intervenes in the lives of
other beings to protect, help, or improve them; it is in the name of human-
ity that progressivist doctrines of freedom are expressed. In other words, it
is humanity that is said to suffer, humanity that calls for compassion,
defense, and solidarity. So I try to think briefly about the network of words
and concepts within which humanitarianism rests.
Historians affirm that three unique characteristics of the modern West
(“modern science and technology, the idea of a common humanity, and
the capacity for self-criticism and dissent”) began to take distinctive
shape in the Renaissance. It was then, apparently, that Renaissance hu-
manism ushered in the beginning of a secular vision of universal order in
which man was the sole agent and humanity the central idea. The Euro-
pean voyages of discovery and the map-making techniques that flourished
in the sixteenth and seventeenth centuries gave Europeans a panoramic
view of the globe as the “habitation of humanity.” The famous skepticism
of Renaissance humanists like Jean Bodin, Justus Lipsius, and Michel de
Montaigne was (so we are often told) a decisive step toward the full toler-
ation of religious difference.* Once the medieval Christian idea of natural
law was secularized, it gradually enabled the notion of humanity to extend
its scope to Christians and non-Christians alike.”
This is one familiar account. But, as Richard Tuck has pointed out,
humanist lawyers were interested only in man-made law and therefore had
no interest in natural law. For them civilized life was urban. They had
contempt for “pre-civilized people,” and consequently they rejected the
notion that natural law reflected the basic principles of a morality appli-
cable universally.® So there is a more complicated story—one that brings
ideas of justice, right, and punishment together as found in medieval and
15. John M. Headley, The Europeanization of the World: On the Origins of Human Rights
and Democracy (Princeton, N.J., 2008), p. 2.
16. See Richard Tuck, “Scepticism and Toleration in the Seventeenth Century,” in
Justifying Toleration: Conceptual and Historical Perspectives, ed. Susan Mendus (New York,
1988), pp. 21-36.
17. Sce Headley, The Europeanization of the World, p. 1s.
18. See Tuck, “Scepticism and Toleration in the Seventeenth Century,” pp. 33-3s.
Renaissance theories of natural law and then tells how they were reformu-
lated in the articulation of state law and individual morality on the one
hand and international law and war on the other.” Humanitarianism be-
came inextricably linked to these complex developments of the law.
Despite the discursive connections among humanism, humanity, and
humanitarianism since the European Renaissance, their significance has
differed greatly over time. We know that one of the sources of the concept
of humanism in the nineteenth century was the growth of German philo-
logical and archeological studies. Humanismus (humanism) was the new
word that referred to the new educational system based not simply on
Greek and Latin but more generally on a romantic vision of Hellenism as
the project of a rational European future. In mid-nineteenth-century Eng-
land, on the other hand, humanism became part of a discourse of secular
rationalism and scientific positivism, indicating freedom from supersti-
tion and blind tradition on one side and a perceived threat to the authority
of the church on the other. It was in nineteenth-century elite education
that humanism (as word and concept) found its celebrated liberal values—
the autonomous individual, the private self, and a public world of law and
political order. Not only was classical Greece (as recovered by humanism)
regarded as an origin of European civilization, but it was also viewed as
containing the seeds of Europe’s enlightened future. The “genius” of Re-
naissance Italy closed the “dark” Christian Middle Ages and anticipated
what was subsequently described as the freedom and toleration of secular
life—although looked at closely, what preoccupied the fifteenth- and
sixteenth-century humanists was not a liberated future but a rediscovered
Hellenic past. The private self, so valued in liberalism, was not part of the
humanist’s world. And yet it is precisely the idea of human experience that
emerges among nineteenth-century English authors to refer to the lives of
individuals belonging to different classes and times, an experience con-
trasted with the stylized epics and ritual drama of the Middle Ages. A
secularized human experience became a way of talking about the essence
of humanity (the object of humanist study), an essence at once universal
and historical. But behind an awareness of the infinitely varied conditions
of ordinary men and women throughout the globe hovered the metaphys-
ical notion of Man—as in the Rights of Man. Yet this too was an entirely
modern conception; for fifteenth- and sixteenth-century humanists Man
(humanity) had neither innate rights nor innate dignity—nor, for that
19. See Tuck, Natural Rights Theories: Their Origin and Development (New York, 1979) and
The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant
(New York, 1999).

matter, was humanity regarded as the hero of a narrative in which liberty

continually expands.
In brief, the story of humanism is not about how the first steps were
taken in the creation of a universal humanity—the object of humanitarian
law. Itis about how medieval literature was viewed from the perspective of
the European nineteenth century, how the medieval concept of natural law
as divinely inscribed morality was translated into a secular device for re-
lating the plurality of the world’s customs to the universality of transcen-
dent law—the accidental to the essential. Tt is also about how the humanist
commitment to skepticism and self-preservation facilitated not only the
emergence of the idea of the modern autonomous individual but also of
the modern sovereign state confronting and subjugating others within and
without.
According to Arthur Lovejoy, the European Middle Ages had taken up
and Christianized the ancient idea of a chain of being, a hierarchy that
included animals, man, and angels and in which each occupied a proper
place. To be man—today generally referred to as human being—was to be
one part, a special part of course, of a divinely created universe, to share in
divinity through Christ’s dual nature as God and Man (the medieval
meaning of humanitas).* Only later did two old ideas (eternal hierarchy
and secular movement) fuse together to produce the unilineal schema of
the progress of mankind.* Humanity, humanism, humanitarianism
therefore belong to a tangled, shifting history.
One of the meanings of humanity that goes back to antiquity is treating
others kindly (humanely). But being kind isn’t always understood as being
nonviolent. Medieval Christian theology was very clear about this. Thus
theologians of that epoch invested the Crusades with caritas (love, benev-
olence, charity). The primary purpose of describing the Crusades as an
expression of love (for God and through God for one’s neighbor) was of
course to recruit fighters to commit themselves as Christians to holy battle.
And yet, although positive feelings for Muslims never appear in Crusade
propaganda, authoritative theologians insisted that neighbor includes the
enemy, even if (as one of them put it) “love of enemies comes last in a scale
of expressions of love.”** The point is that love was not incompatible with
violence; St. Augustine had, after all, taught that punishment meted out to
redeem sinners must always be infused with love. All men are sinners
capable of being saved; sin and salvation are together the essence of being
20. See Arthur O. Lovejoy, The Great Chain of Being (Cambridge, Mass., 1964).
21. See also Margaret T. Hodgen, Early Anthropology in the Sixteenth and Seventeenth
Centuries (Philadelphia, 1964).
22, Jonathan Riley-Smith, “Crusading
as an Act of Love,” History 65 (June 1980): 185.

human, and the process of salvation requires repentance and penance.

Another way of putting this is that mankind is seen as twofold: on the one
hand there is what we can call, anachronistically, humanity, and on the
other there is potential humanity, and the way from the one to the other is
made possible by reaching out with charity and chastisement to those who
need it. The mutual embrace of compassion and violence is thus central to
this concept of humanity, and it continues as a strand in post-Christian
military humanitarianism, although with humanity’s moral independence
from God it acquires a different valence. The Christian idea that all men
are sinners does not, of course, mean that they are equallyso, and they can’t
expect to be treated equally in this regard. Nor does it follow from the
claim that all men are objects of divine love that each man has an equal
right either against God or against other men. The historical Christian
conception of the essential quality of being human is different from the
modern conception in which each person’s desires have the right to be
treated as seriously as those of others. In modern society, what criteria are
appealed to in given cases to determine that the treatment is equal in given
cases, that the right to equality is being respected, is complicated of course;
the general rule that everyone has an equal right to respect does not by itself
tell us how each man’s failings are to be dealt with in particular situa-
tions—whether kindly or punitively. The criteria for deciding this are cul-
turally diverse; how they are used to bolster particular arguments varies.
My point is that there is no simple move from a Christian idea of sinful
man, of individual human beings who can all be saved by divine love and
compassion, to the modern concept of universal humanity whose mem-
bers are all entitled to equal respect.
At any rate, in the later sense of the species, humanity was born and
nurtured in the crucible of early modern conquest and settler colonialism.
This becomes clearer when we ask how European Christians treated the
human inhabitants of the Americas they first encountered as they began
their conquests. How did they conceptualize that human relationship? In
sixteenth-century America, Bartolomé de Las Casas and Hernando Cortés
typified a contrast of opinions on the subject. Tzvetan Todorov notes that
these two figures differed significantly in the sympathy that informed their
relations with the indigenous population. It was Las Casas who insisted
that Indians be treated humanely. And yet, so Todorov points out, “Las
Casas and Cortés are in agreement on one essential point: the subjugation
of America to Spain, the annexation of the Indians to the Christian reli-
23. See Headley, The Europeanization of the World, for the suggestion that the modern
concept of equality is simply a secularization of Christian notions.

gion, the preference for colonialism over enslavement.”** Todorov’s ac-

count shows that convertibility is seen by the conquerors as a universal
human characteristic.*
In the nineteenth century, when racial ideas were first articulated, con-
vertibility as a human potential was denied to various categories of people,
who could therefore be kept in permanent servitude or destroyed en
masse. But in earlier centuries, Europeans had attempted to categorize
unfamiliar cultures in a rich variety of ways, by making parallels with
peoples in the Old Testament and in classical antiquity, with contempo-
rary Christians (Roman Catholics), with heretics (Muslims), and with
contemporary peasantry (paganismus, the pagan world) who were seen as
untouched by civilizing influences. These parallels did not yet employ a
temporal frame; evolutionary perspectives for understanding differences
emerged later.** Although up to a degree convertibility legitimated impe-
rial expansion, the call for converting human beings expressed a desire to
bring outsiders within the fold of a universe in which eventually individual
autonomy and secular reason became the source of morality as well as of
truth for all human beings.”
Lynn Festa has made the interesting suggestion that the well-known
interest of eighteenth-century writers in the thoughts and feelings of their
characters (in their “interiority”) is to be seen not simply as an expression
of the emerging modern self but more precisely as a reflection of colonial
experience:
The protracted attention to the sustained threads of voice and charac-
ter in sentimental narrative constructed a common language of psy-
chological depth that secured the self in relation to others it
encountered, while the sentimental mode’s investment in affective
and psychological interiority helped distinguish the particularity of
24. Tzvetan Todorov, The Conquest of America: The Question of the Other, trans. Richard
Howard (New York, 1984), p. 177.
25. In his wonderful study, Beyond Church and State: Democracy, Secularism, and
Conversion (Cambridge, 2013), Matthew Scherer has used the trope of conversion to understand
secularism.
26. Hodgen's Early Anthropology in the Sixteenth and Seventeenth Centuries deals with this
subject in splendid detail.
27. Nathaniel Roberts has argued that conversion should not be seen as the “colonization
of consciousness” because that presupposes an authentic consciousness always available to be
colonized, although in fact consciousness is a discursive product of liberal history. He asks why
conversion seems particularly problematic for liberal ethics and points in answer to its
conception of the human subject as essentially characterized by moral autonomy and freedom.
See Nathaniel Roberts, “Is Conversion a ‘Colonization of Consciousness'?” Anthropological
Theory 12 (Sept. 2012): 271.
the human from the interchangeability of the commodity, the self-

possessed individual from the dispossessed slave.*
That does resonate, of course, with the ideological account of the emerging
(becoming fully “humanized”) modern self: its increasingly clear defini-
tion of the selfas sole proprietor of itself, of self-ownership as the only basis
for claiming to be the antithesis of thingness, something anyone may own.
Festa’s insight is that this emergence, in which sympathy plays an impor-
tant role, not only articulates the mutual constitution of self and other but
is also fundamental to asymmetrical relations of power.
In Europe’s imperial centuries, argues Festa, encounters with strange
peoples and places produced emotions that could threaten the integrity of
the colonizing self. One way the latter could be reasserted or restored was
by defining interpersonal relations in terms of the asymmetry of sympathy,
articulating thereby an antithesis between the colonizing subject of sym-
pathy and the colonized subject of suffering, each side dependent on the
other for its identity.* Another binary reinforced this structure of feelings:
on the one hand, persons belonging to the community having the right to
judge, command, and improvise; and on the other hand, persons (differ-
entiated by race, gender, and religion) who are obliged, in varying degree,
to submit. These intertwined sentiments and powers, rights and duties,
helped to constitute both communities at the same time and to redefine
the content and limit of humanity envisioned by each. Sentimentality was
therefore not simply an ideological mask for imperial exploitation and
violence. It was—and is—an emotional complex shaping relations of
domination and subjection: colonial as well as domestic, male as well as
female, collective as well as individual
Although feelings are analytically distinguishable from rights and duties,
both are intertwined in humanitarian projects.* If one thinks of rights as as-
serted and passions as endured, it is not difficult to see why the process of
28. Lynn Festa, Sentimental Figures of Empire in Eighteenth-Century Britain and France
(Baltimore, 2006), p. 3.
29. Sceibid., p. 7. See also Festa, “Sentimental Visions of Empire in Eighteenth-Century
Studics,” Literature Compass 6 (Jan. 2009): 23-55.
30. See Rupa Viswanath, “The Emergence of Authenticity Talk and the Giving of Accounts:
Conversion as Movement of the Soul in South India, ca. 1900,” Comparative Studies in Society
and History 55 (Jan. 2013): 120-41. Viswanath argues that the emergence in South India of the
so-called modern self (thought to be capable of narrativizing ts authentic convictions) needs to
be set within the context of conversion in which the discourse of sincerity was required only of
outcast agricultural laborers and not of upper caste Hindus.
31 Feeling may be mobilized tactically to support particular causes; see Norman S. Fiering,
“Irresistable Compassion: An Aspect of Eighteenth-Century Sympathy and Humanitarianism,”
Journal of the History of Ideas (Apr. 197
losing oneself in another’s misery might be regarded as amounting to the
displacement of reason. But the sharp theoretical opposition between rights
and emotions always breaks down because of the interconnections between
the two in practice; they each feed off and seek to control the other.* It was
partly the volatility and unreliability of emotions, of feelings of sociability, that
led Immanuel Kant to abandon Europe’s eighteenth-century ethical theory
based on sentimentalism and to adopt instead one based on the supposed
neutrality of law. Because for Kant moral behavior presupposes the autono-
mous subject’s ability to judge and to act according to transcendent rules, it
required a very different kind of theory in which concepts of right and duty
replace ideas of sentiment.® That aspect of Kantianism, with its rights talk, has
become the foundation for humanitarian law.
As word, concept, and practice, humanitarianism emerged in the nine-
teenth century with the consolidation of European nation-states, the ex-
pansion of European colonial empires, and the global development of
capitalism. Yet the first usage of the words humanitarian and humanitar-
ianism was theological; they were expressions by which the orthodox ma-
jority referred disapprovingly to Christians who subscribed to the
exclusively human nature of Jesus.* One derived application was its refer-
ence to those, like the nineteenth-century socialist Pierre Leroux, who
professed the “Religion of Humanity.” The word humanitarian thus car-
32. This in part is the argument in William M. Reddy, “Sentimentalism and Its Erasure:
The Role of Emotions in the Era of the French Revolution,” Journal of Modern History 72 (Mar.
2000): 109-52. Reddy proposes that emotives (expressions that affect internal emotions) are a
third category between performatives (statements that bring something about legally or
socially) and constatives (indicative statements), popularized in anthropology through a
particular reading of J. L. Austin, How to Do Things with Words (New York, 1976). But Austin’s
book begins by expressing his dissatisfaction with the simple distinction between the latter two
as alternatives and elaborates instead a more sophisticated conceptualization of what words do
through simultaneous locution, illocution, and perlocution. Employing these three concepts
critically — that is, through his notion of emotives — instead of remaining with the original
constative/performative binary would have allowed Reddy to highlight the fragile character of
rights based on rational principles. The exercise of the citizen’s right in liberal democracies to
elect his president is widely criticized for being deeply affected by highly emotional
(“irrational”) media campaigns. But the right is no less of a right for that
33. Fora brief discussion of Kant's problem with making sympathy the basis of morality,
see Samuel Moyn, “Empathy in History, Empathizing with Humanity,” review of The Fragility
of Empathy after the Holocaust by Carolyn J. Dean and History in Transit: Experience, Identity,
and Critical Theory by Dominick LaCapra, History and Theory 45 (Oct. 2006): 397-415, and
Dabney Townsend, “From Shaftesbury to Kant: The Development of the Concept of Aesthetic
Experience,” Journal of the History of Ideas 48 (Apr. 1987): 287-305.
34. See Oxford English Dictionary, s.v., “humanitarian.”
35. See Louis Pierre Leroux, “Pierre Leroux’s Doctrine of Humanity,” Fortnightly Review, 1
Mar. 1872, pp. 324-31. And on his connection of aesthetics to politics, see Warren Breckman,
“Politics in a Symbolic Key: Pierre Leroux, Romantic Socialism, and the Schelling Affair,”
Modern Intellectual History 2 (Apr. 2005): 61-86.
“This content downloaded from 165.123.34.86 on Wed,

All use subject to JSTOR Terms and Cor
ries traces of the Christian idea of redemption, of Christ the Redeemer of

humanity. Reaching out compassionately to another’s pain (or sin) not
only redeems individuals who are endangered but also elevates humanity
as a whole.
Attention to the content of the idea of humanity—to the language ex-
pressing desire and affect when talking about humans and the political
reasoning used variously to demand their liberation or improvement,
their protection or sacrifice—indicates how complicated the process of
recognizing humanity is. Not only have the limits of who can be included
in humanity continuously shifted through modern history but also an idea
has crystallized that the content of what is human is itself indefinite. The
European drive to expand, by conquest, into areas where non-Europeans
lived, and the latter’s consequent subjection, should not therefore be seen
as a simple failure to fulfill the Enlightenment promise of universal equal-
ity. The idea of difference is built into the concept of the human. The
question to explore further is why, for liberal Euro-Americans, violence,
whether imposed or endured, is regarded as the indispensable means for
securing order (the modern state) as well as for undermining it (modern
revolutions). Another way of asking this question is this: If the develop-
ment of human capacities and human powers is limitless, do they not spell
the continuous destruction of existing forms of life—and therefore the
continuous perpetuation of insecurity? How does humanitarianism fit
into this process?
Historical and Psychological Origins of Humanitarianism

But first: in what sense is the rise of humanitarianism in today’s
world a sign of a new sensitivity toward human pain? Compassion and
charity are as old as human history, but helping human beings who are
suffering—especially suffering due to human cruelty—has taken on
new forms in modern times without entirely displacing older ones. The
scope of humanitarianism tends to be global, ideologically it is linked
in one way or another to the progressive emancipation of humanity,
and emotionally it builds into crimes against humanity. Of course,
NGOslike Médecins sans Frontieres (MSF) who seek to mend damaged
bodies and relieve physical pain and suffering are not committed to
emancipation, any more than the Society for the Prevention of Cruelty
to Animals is, but whether they approve of the fact or not all nongov-
ernmental organizations must work through nation-states. Even non-
military movements have to address the question of sovereignty in one

way or another, with the result that they can easily become entangled
with US interventions in the South.»*
In what follows I focus on military humanitarianism. I stress that this
form is not a “perversion” of genuine humanitarianism, such as MSF, but
another articulation of impulses and contradictions in the initiatives un-
dertaken by and for human beings. As I have been arguing in this essay, the
exercise of violence is intrinsic to the modern concept of the human. In
military humanitarianism violence serves at once as defense (as in war)
and as punishment (as in criminal justice).
Gary Bass focuses on nineteenth-century Europe in his history of hu-
manitarian intervention. He is aware that this period also happens to be
the highpoint of European imperialism but warns against confusing hu-
manitarianism with it: “Imperialism is about domination and superiority,
not the empathy of humanitarianism. . . . Humanitarians do not want to
govern other people, let alone the world; they, at their best, just want to
resist atrocity.”¥ Bass, like many others, links a new Euro-American sen-
sitivity to atrocities in foreign lands to the growth of liberties and demo-
cratic politics at home:
As domestic liberalism grew up in Britain, the United States, and, to
some extent, France, the governments there found their foreign policy
being pushed by their own homegrown freedoms: above all the power
of a newly unshackled free press that could report on foreign atroci-
ties; and then a free society that could react with horror at those
atrocities, and politicians inside and outside the government jockey-
ing for political power by trying to capture that public passion.*®
36 Thus in 2004 MSF decided to leave Afghanistan and issued a bitter denunciation of US
strategy there, saying that it had worked in the country for almost a quarter of a century—right
through the Taliban interregnum—and never encountered such danger from the warring sides:
‘The violence directed against humanitarian aid workers has come in a context in which the
US backed coalition has consistently sought to use humanitarian aid to build support for its
‘military and political ambitions. MSF denounces the coalition’s attempts to co-opt human-
itarian aid and use it to ‘win hearts and minds.". .. Only recently ... MSF publicly con-
demned the distribution of leaflets by the coalition forces in southern Afghanistan in which
the population was informed that providing information about the Taliban and al Qaeda
was necessary if they wanted the delivery of aid to continue. [Médecins sans Frontieres,
“MSE Pulls Out of Afghanistan,” 28 July 2004, www.msf.org/article/msf-pulls-out-afghanistan;
emphasis added]
Whether these leaflets were intended as a threat or as a plea for assistance s difficult to
determine.
37. Gary Bass, Freedom’s Battle: The Origins of Humanitarian Intervention (New York,
2008), . 379.
38. Ibid., p. 6.

One difficulty with such attempts at a neat conceptual separation between

political power on the one hand and empathy with victims of violence on
the other is that the motives of humanitarians must traverse imperial
structures. In the first place the structure of global inequalities (dominated
by rich and powerful countries) inevitably underpins such actions. Great
Power interests enter into the identification of the legal category of crimes
against humanity and determine whether a charge regarding a war crime
or a crime against humanity can be brought before an international court.
Legal forms can always be found (or the intervention covered up) in the
interests of a grand strategy for strengthening democracy and security in
regions hegemonized by the Great Power.
The places that most interested West European humanitarians in the
nineteenth century were in the weakening Ottoman Empire. The massa-
cres that occurred in European-controlled territories—in the Belgian
Congo, for example, in German South-West Africa, in the US, in the Phil-
ippines, or in Algeria—did not call for international protection. But to
regard this difference as a simple matter of double standards is to fail to see
fully its ideological underpinning. The justifications of such violence were
of course multiple, but the motive always included self-defense of human-
ity in the widest sense. States that kill in the course of their claim to be
engaged in a universalizing project, that of raising “the best part” of hu-
manity in the name of humanity as a whole, must be distinguished from
the violence of “lower” societies.® And yet racist violence in European
empires eventually became available in Europe itself.«
Euro-America’s universalizing project has been copiously written
about, but here is an interesting example of its recognition. In 1915, France,
Great Britain, and Russia issued a joint declaration in response to the
Armenian massacres. Interestingly, the original Russian draft contained a
denunciation of crimes “against Christianity and civilization.” France
was concerned that this phrasing might offend its Muslim colonial sub-
39, Foucault saw in this the logic of racist violence:

Racism makes it possible to establish a relationship between my life and the death of the
other that is not a military or warlike relationship of confrontation, but a biological type
relationship: “The more inferior species die out, the more abnormal individuals are elimi-
nated, the fewer degenerates there will be in the species as a whole, and the more I—as spe-
cies rather than individual — can live, the stronger I will be, the more vigorous I will be. T
will be able to proliferate.” The fact that the other dies does not mean simply that I live in
the sense that his death guarantees my safety; the death of the other, the death of the bad
race, of the inferior race (or the degenerate, or the abnormal) is something that will make
life in general healthier: healthier and purer. [Michel Foucault, “Society Must Be Defended,”
trans. David Macey, ed. Mauro Bertani and Alessandro Fontana (New York, 2003), p. 255]
40. See Hannah Arendt, The Origins of Totalitarianism (New York, 1975), esp. chaps. 6, 7, 8.
jects, so ““Christianity” was replaced in the final version by the word “‘hu-
manity.””* Whatever the motive behind this verbal change, what we have
here is the translation of a particular into a universal: The moral content
given to the term humanity as the synonym for Christianity reveals the
assumption that whereas actual human beings are finite and particular—
Turkish killers, Armenian victims, say—international law remains univer-
sal, a site that transcends differences between Christians and others. It is
the ambiguous sense of humanity that gives it a degree of plausibility in
this context. In order to reconcile the opposition between universal law
and particular incidents of violence it was necessary to place humanity (at
once an abstract class and a compassionate attitude) as a mediator between
the two—between the right of sovereign individuals to life and security
and the right of sovereign states to use violence.
This brings up the question of how the political community is imagined
by humanitarianism. Bass does not clarify who deserves empathy and why:
Victims, because they suffer death and destruction? Or perpetrators, be-
cause they believe they confront internal enemies who threaten the conti-
nuity of their collective existence? Michael Walzer writes that:
The commitment to continuity across generations is a very powerful
feature of human life, and it is embodied in the community. When
our community is threatened, not just in its present territorial exten-
sion or governmental structure or prestige or honor, but in what we
might think of as its ongoingness, then we face a loss that is greater
than any we can imagine, except for the destruction of humanity it-
self. We face moral as well as physical extinction, the end of a way of
life as well as a set of particular lives, the disappearance of a people
like us. And it is then that we may be driven to break through the
moral limits that people like us normally attend to and respect.*
Walzer articulates a familiar liberal paradox: on the one hand, a strict
recognition of moral limits to what one may do to others; on the other
hand, a justification for doing anything, using any kind and degree of
violence (so long as it works), if collective ongoingness is seen to be threat-
ened. This prompts the following question: Do the acts to found and pre-
41. “The declaration originated in the Russian foreign office and was only reluctantly
subscribed to by Sir Edward Grey. The French government saw to it that the originally
proposed phrase, ‘crime against Christianity and civilization,’ was replaced by ‘crime against
humanity and civilization,” in order to spare the feelings of the Moslem population in the
French colonies” (Ulrich Trumpener, Germany and the Ottoman Empire, 1914-1918 [Princeton,
N.J,,1968], p. 210 n. 26).
42. Michael Walzer, Arguing about War (New Haven, Conn., 2004), p. 43.
serve a community of “people like us,” typically expressed in a nation-

state, deserve to be accorded legitimacy as well as compassion, even though
its founding and continuity involves sustained violence and great cruelty?
If not, why not?
Whatever the answer, there is, clearly, more to be said about empathy
than Bass gives one to understand. The human ability to enter into, know,
and feel the psyche of another is not incompatible with dominant power
because it renders the other vulnerable to more precise control. For that
reason empathy is not simply a mode of generosity toward the other but
may be a condition of insinuating oneself into and manipulating social and
psychological structures to one’s own advantage.*» Commercial, political,
and religious movements from Euro-American states that penetrate the
expanding reaches of empire have, of course, a long history. Connected
with these movements is the enormous accumulation of knowledge about
alien societies that has facilitated profit, rule, and conversion. This knowl-
edge (which in liberal states and empires is in part secret) sustains the arts
of peace, but peace in the language of empire includes pacification, a form
of “necessary” violence directed at the uncontrolled violence of territori-
ally peripheral populations liable to erupt again and again. It is therefore
not the sentiments of humanitarians to which one should attend but the
logic of the will to dominate.
Pacification was dealt with by what were known as small wars, orga-
nized violence that anticipated today’s global strategies to secure peace.
Security in this sense goes beyond humanitarian intervention by preempt-
ingacts of violence. Small wars might be thought of as proto-humanitarian
interventions to the extent that they claimed to establish (imperial) peace
and law in place of instability and cruelty. Indeed they undermine the
usefulness of the binary classification war or peace for understanding the
character of violence in modern life. The classic British military manual by
Colonel C. E. Callwell entitled Small Wars appeared at the very end of the
nineteenth century, and that was followed by a line of similar works in
Anglo-America, including the 1940 U.S. Marine Corps Small Wars Man-
ual# Today the work of pacification has become more complex,
acquiring, as in the recent U.S. Army Counterinsurgency Handbook, a hu-
43. na striking thought, Stephen Greenblatt suggests that what modernization theorists
celebrate as the universalizing of empathy (putting oneself in the other person’s place) William
Shakespeare calls lago, that the idea shared by the abstract process of modernization and the
theatrical figure is improvisation: “the ability both to capitalize on the unforescen and to
transform given materials into one’s own scenario” (Stephen Greenblatt, Renaissance Self-
Fashioning |Chicago, 1980], p. 227).
4. Sce Colonel C. E. Callwell, Small Wars: Their Principles and Practice (1896; Lincoln,
Nebr.,1996), and United States Marine Corps, Small Arms Manual (1940; New York, 2009).
manitarian dimension: converting the barbarians to the freedom and progress
that their humanity demands, and when that is not possible then eliminating
them because of their inhumanity. The occupying army’s project is the resto-
ration of stability and legitimacy in what the handbook always calls the “Host
Nation”: “Military action can address the symptoms of a loss of legitimacy,”
the handbook states. “In some cases, it can eliminate substantial numbers of
insurgents. However, success in the form of @ durable peace requires restoring
legitimacy, which, in turn, requires the use of all instruments of national
power. A COIN [counterinsurgency] effort cannot achieve lasting success
without the HN [Host Nation] government achieving legitimacy.” In other
words, the conversion of an entire society is the means of according it legiti-
macy, whose loss, incidentally, is signaled not by the US invasion but by resis-
tance to it. The paradox is that for a government to “host” a foreign army it
must already be legitimate and sovereign, and yet that army’s mandate is to
restore the legitimacy and sovereigntyof a “failed state.” The interesting lesson
this paradox teaches is that sovereignty is much more than the affirmation of
state rights within the Westphalian system; in its negative form sovereignty is
also part of a strategy for military intervention in other states, especially on
humanitarian grounds.
A Note on Juridification
Colonialism has long ended, but the United Nations has recently justified
military intervention into ex-colonial countries for humanitarian purposes by
adopting a new legal norm known as the responsibility to protect. Its support-
ers stress that the norm underwrites a duty to protect and not a right to inter-
vene. Critics worried by the license this might give the Great Powers to violate
the sovereignty of vulnerable states are assured that this would happen only in
exceptional cases and as a last resort—after it was clear that the state in ques-
tion was not really sovereign because it was unable to perform the primary
function of sovereign authority: the ability to control its entire national terri-
tory and to protect its national population. This definition of sovereignty as
effective power opens up the possibility of using violence legitimately by other
political agents who can claim competence and/or justice. This means that
sovereignty may be challenged by humanitarian military intervention from
outside even as militants and terrorists from inside challenge it.*
45. Department of the Army, U.S. Army Counterinsurgency Handbook (New York, 2007),
1.22; my emphasis.
46. In his intriguing article “Le Souverain, humanitaire et le terrorist,” Vacarme 34 (Jan.
2005), www.vacarme.org/article48s.html, Adi Ophir identifies the humanitarian and the
terrorist as two new actors who challenge the sovereignty of states. But strictly speaking this
applies only to the military humanitarian.
But the connection between the duty to protect human life and the
human right to life is not self-evident. While the right is regarded as uni-
versal, belonging to every human, not everyone is expected to step forward
to defend it—or can do so. So whose responsibility is it to protect? This
question was easier to answer in colonial times: the rulers of empire de-
cided because they had the power to do so. During decolonization, how-
ever, the claim to sovereignty against the occupying power, and therefore
to the right to use violence legitimately, was made on moral-legal grounds.
According to the UN charter, where a state was entitled lawfully to occupy
foreign territory, or an international organization to administer a terri-
tory, this was authorized for a limited time and purpose. In other words,
nothing was to be done to contravene existing sovereign rights in that
territory. The responsibility to protect is significantly different. It assumes
that the rights of sovereignty are based on the de facto ability to control its
territory and provide effective protection to its entire population. In the
absence of this function the claim to sovereignty is itself undermined and
the obligation to carry out the state’s basic functions devolve automatically
on the international community (on the Euro-American powers). “This
de facto grounding of authority,” writes Ann Orford, “marginalises the
more familiar claims to authority grounded on right, whether that right be
understood in historical, universal or democratic terms.” The claim to
the right to use sovereign violence by nationalist rebels against colonial
authority, or by revolutionaries against an oppressive ancien régime, is
now accorded to external powers who are expected to perform their hu-
manitarian duty—but without giving them all other rights of sovereignty.
It is partly for this reason that the external powers are not hampered by any
responsibility for the consequences of their military intervention. The mo-
tive for the new norm is thus founded on compassion as an ethical prin-
ciple, but its application lies in a domain that excludes ethics in favor of
pragmatism (what is doable). Besides, there is no legal requirement to
justify publicly what is actually doable and what is not, and why—hence
the accusations by critics of hypocrisy and double standards. But these
criticisms miss their target because they presume that the modern nation-
state should behave in ways it cannot. It is in the nature of the modern
nation-state to act rationally and objectively, without passion or compas-
sion in its own interests, precisely because it is not a human subject. Thus,
unlike individual human beings, the nation-state cannot sacrifice itself for
a transcendent ideal.
47, Anne Orford, International Authority and the Responsibility to Protect (New York, 20m),
p.16.

Connected with the responsibility to protect there is the older work of
the International Criminal Court whose purpose is to try war crimes and
crimes against humanity. Military intervention for apparently humanitar-
ian ends now carries with it a responsibility for bringing war criminals
(and persons who have committed crimes against humanity) to justice.
But as Michael Byers points out, “the fact is that most alleged war criminals
will never appear in the dock. The few that do are those who have lost
political power and powerful friends.”** And yet this unevenness in trying
perpetrators of crimes against humanity is not merely a matter of exerting
political influence to favor friends;* it involves the use of national laws to
sideline the determination of responsibility—and thus to give immunity
to certain acts of violence.®
The new ideal of humanitarianism applies in principle not simply to
physical protection against massacres but to any violation of human life
considered broadly as a sacred essence, as the subject of a human right. It
can therefore apply to the traditional status of women in occupied Afghan-
istan that is perceived as a violation of women’s human rights, and the
military presence of NATO in Afghanistan is, in part, justified as an at-
tempt to restore them; what this justification does, in effect, is to try to
transform a conception of moral rightness into a positive right. Rights talk
in such situations typically promotes bureaucrats, lawyers, and other spe-
ists in human rights. My point here is that precisely because humani-
tarian intervention in the defense or restoration of human rights
(including of course the right to life and the right to various freedoms)
depends on the use or threat of violence, it should be understood not in
terms of motives but of effects, as a rearrangement of the relations among
violence, ethics, and sovereignty—as when people are either forced to be
free or stopped forcibly from behaving freely by the legally authorized
powers when such behavior constitutes a violation of human rights.
The ferocity and destructiveness of war in modern times have grown
exponentially; the ingenuity that has gone into the technology of war is a
matter of common knowledge; the ingenuity in constructing law so as to
48. Michal Byers, “Alleged War Criminals,” London Review of Books, 22 July 2004, p. 31;
hereafter abbreviated “AWC.”
49. “Even trials in absentia,” writes Byers, “can be subject to political pressure: in Brussels,
an investigative prosecutor had to abandon an attempt to try Sharon last year after the Belgian
government succumbed to Isracli and American pressure to modify the legislation on the basis
of which the prosecution was taking place” (“AWC,” pp. 30-31).
50. “The United States has legislation that provides the president with the authority to use
‘military force to secure the release of any American serviceman detained by the International
Criminal Court, in the form of a statute popularly known as ‘The Hague Invasion Act”
(“AWC,” p. 30).
expand the scope of legal killing by complicating responsibility is less

widely appreciated but equally impressive.* At the level of international
law the responsibility to protect that legalizes military action is a prime
example. I want to emphasize not only the well-known fact that law is a
principal means of consolidating state control over its population but also
that it is part of international strategies for perpetrating violence. The
purpose of law is said to be to establish order, to protect individuals and
their property, to determine responsibility. But the complexity of the lan-
guage of law, the indeterminateness of its meanings, makes it possible to
extend coercive—even destructive—behavior legally. It is law that defines
the momentous distinction between humane and inhumane suffering. It is
law that extends the scope of punishment.
Public life and experience in liberal democratic society have become
increasingly “juridified.” The process of regulating social life, both civil
and military, of deploying human life productively in peace and in war, of
regulating birth and death within the state—especially technologically
aided birth and delayed death—is guided largely by ideas of individual
freedom and equal respect and is therefore fundamental to liberal politics.
But with increasingly disparate definitions of culpability, of guilt and in-
nocence, the potential for violence—both responsible and irresponsible—
itself grows. And irresponsible violence comes to be seen as a crime, in
which intention (the telos that is part of the act) rather than motive (the
narratives by which the act is justified to oneself and others) is the central
organizing concept. Thus “juridification” immediately brings up the ques-
tion of culpability and punishment. But a liberal democratic state goes
beyond legal devices for responding to criminal violence because its pri-
mary duty is to protect its citizens; the conviction that the state is sur-
rounded by enemies abroad and at home calls for laws that establish
protective measures. In relation to secret enemies the measures themselves
must be secret and indefinitely expandable because one never knows in
advance what measures will work effectively. The rulers of liberal democ-
racies thus decide secretly on the balance between civil rights and civil
security. In the matter of security the laws may not be secret, but their
interpretation apparently can be.
The idea that the failure to stop massacres is due to the absence of
relevant laws, that what is needed is humane reform of the law, is in effect
a call for the further juridification of social life, by which some kinds of
violence can be categorized as crimes against humanity and punished ac-
51 See Scott Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering (New
York, 2007), esp. chaps. 3-4.

cordingly. For humanitarianism, acts of deliberately killing civilians (as
opposed to lawful combatants) are taken as violations of the essence of
humanity and not simply as proscribed violence. As I propose above, the
abstract concept of humanity can serve as a mediator between the timeless
universality of international law and the particular incidents of lethal force
because of its double sense of biological species and compassionate behav-
ior. Humanity is able to play this role, passive and active, because of the
metaphysical conception of life that underpins it.
On Inhumane Killing
What exactly is the metaphysical conception of life? Clearly the word
itself is used in many senses: social and public life, mode of life, life sen-
tence, the principle of vitality, the divine gift of eternal life. But its central-
ity for the concept of humanity requires further consideration.’* One way
of approaching this question is to explore the feelings evoked by the killing
of human life as opposed to the slaughter of animals for food.
I argued earlier that humanitarian interventionism is not satisfactorily
explained by increasingly refined sensibilities (Taylor) or by the emergence
of democratic politics (Bass).”* What gives it its moral force is horror at the
violation of human life. But what precisely does the horror consist of? In
posing this question I am not interested in the well-known fact that the
media select and present acts of violence by legitimizing some sentiments
and intensifying others, but in the concepts that underpin the way horror
is produced as a response and that make it effective.
The horrific nature of the slaughter of “innocent” human beings is
deeply implanted in the social imaginary of modern Euro-Americans as
barbaric and savage—as morally intolerable to civilized sensibilities. It is
this sensibility that also fuels the cause of military intervention (“we can-
52. Gil Anidjar, “The Meaning of Life,” Critical Inquiry 37 (Summer 2o1): 697723, deals
with the ambiguity of life, and it was this that provoked me to think further about its relevance
for the argument of my essay.
53. When and how people are emotionally affected by the perpetration of cruelties on
helpless victims in distant places is a complicated matter. The scale of losses is obviously
central. Thus there was no popular revulsion at the fact that American troops on a
humanitarian mission in Somalia may have massacred up to 10,000 persons (including
civilians) while losing only thirty-four soldiers; sce Charles W. Maynes, “Relearning
Intervention,” Foreign Policy 98 (Spring 1995): 96, 98. The disaster inflicted on Iraqi civilians
after the US invasion in 2003, retrospectively described by many of ts supporters as
humanitarian, has been even greater, and the expressions of horror in Euro-America very
minor. On the other hand, the considerable American military losses in Vietnam, the fact of
‘middle-class conseription, and the disastrous progress of that war were clearly critical in
eventually making anti-Vietnam War protests effective. Contra Bass, in liberal democracies
most people are not inclined to exert sustained pressure on their government as long as they
live in reasonably comfortable circumstances.
not watch and do nothing!”). Barbarians and savages do not have the
notion of collateral damage, which explicitly allows the civilized to kill
noncombatants in military action, because only the civilized have concep-
tions of legal responsibility in warfare. The question of intentionality in
modern war is directed at defining legal—that is, responsible—Kkilling; it is
generally acknowledged that a military strike against a civilian target will
kill a surplus and that those excess deaths will be legally covered as long as
the killing is thought to be proportionate and necessary. And there is al-
ways, as a matter of modern military etiquette, the obligatory public ex-
pression of regret at such killing. Moderns believe that unlike barbarians
and savages, civilized fighters act within a legal-moral framework; the law
of war is a crucial way of restraining killing, in manner and in number.
Barbarians do not have such a framework. Not only do they not have
external rules to restrain them, they have no conception of redemption (or
secular regret) after having killed. This is why, so it is said, moderns find
the unrestrained and unrepentant killing by barbarians and murderers
shocking.s*
But why is dismemberment by a machete, for example, more shocking
(more barbaric) than the same result obtained by a missile? The interesting
point is that being hacked to death by a machete (or blown up by a suicide
bomber) is regarded as inhuman, a notion that presupposes there are hu-
man ways of killing and dying as well as inhuman ones. Indeed, ways of
killing and dying are part of how we define the human. But the question
remains: Why are some representations of inflicting pain and death felt as
54, In her excellent ethnographic rescarch on humanitarian movements, Annette Jansen

underlines the emotional stance of those who arc officially committed to making the case for
military intervention to stop massacres. I cite a brief extract from her interviews:
Respondent: This morning as I was walking to the subway, listening to the BBC news, 1
heard there was a massive killing in Nigeria last night, like 500 civilians killed by machetes,
and burned . It was horrible, something like an explosion. And I was coming here and 1
was thinking, “OK we are watching Sudan and Burma, but his is really ... like an explo-
sive. . you know, I don’t know, act of violence.” . .. And at the same moment, the very
same moment that I was reading in the afternoon, Rwanda comes to my mind. Because the
images . . Interviewer: What kind of images? Respondent: Machetes, you know, like this
bratal way of killing people, because I mean if you were using fire weapons. It's horrible it's
the same, but T think it is so much more barbaric, because people . .. they have their ma-
chetesand ... . T cannot help picturing graphically the image of one person killing another,
especially children I think that's the part where I get more shocked. . .. Respondent: yeah ..
yeah ... I think it's more, again like I said, it is more painful, you know. If somebody goes
and cuts your arm and cuts your leg and you're not dead yet. .. It's a level of pain and a
level of suffering and it is more . .. barbaric, I think. It is not like it justifies to. . .but there
are different ways to kill somebody, you know. [Annette Jansen, “We Refuse to Be Bystand-
ers!” Humanitarian Activists and the Call for Mass Atrocity Interventions,” unpublished
manuscript, Dec. 20m]

an assault on the sensibilities of observer or reader—as revolting—while
others are simply occasions for exercising the virtue of compassion? What
makes gratuitous cruelty an index of barbarity, a sign that perpetrators are
on the margins of the human? Mary Douglas famously proposed that hor-
ror and revulsion are a response to events and things that do not fit into
normative cultural categories.” Is gratuitous cruelty an event that doesn’t
properly belong to morally and legally permitted violence either in peace-
time or in war? At any rate, one may suggest that cruelty is thought to be
gratuitous because it violates humanity and not simply because it deliber-
ately inflicts pain and suffering on humans.
Savages, we are given to understand, cannot be said to disclaim respon-
sibility for killing and maiming large numbers of the enemy’s nonwomen
and nonchildren because they have no feelings of remorse about torturing
their enemies or subjecting them to a painful death.’* They cannot—and
would not—say they didn’t intend to kill. The question of intentionality in
modern warfare (including humanitarian action) has become crucial in
defining legal—or responsible—killing. Moderns believe that unlike bar-
barians and savages, civilized fighters act within a legal-moral framework;
the law of war is crucial for restraining killing, in manner and in number.
Savages, unlike moderns, are strictly speaking not persons on whom legal
or moral responsibility can be affixed. Unlike civilized persons, they have
no conscience, no regard for the sacredness of life. It is said that moderns
find cruel killing to be barbaric and shocking because it appears to chal-
lenge the very basis of sound moral responsibility; it foregrounds character
(itis in the nature of barbarians to be cruel) in place of capacity (the subject
either has or does not have the authority to use violence). It is essentially
the character of the barbarian (or, for that matter, of the terrorist) and not
his deed that is regarded with horror. From William Hogarth’s picture of
the murderer Sarah Malcolm awaiting execution in her cell” to anony-
mous sketches of heavily bearded jihadi prisoners being tried for ter-
rorism in a US court, what is perceived and portrayed is the character
(physical sign) of cruelty itself. It is not the absence of rules that defines
barbarism but the inability to respond with horror at cruelty, to recog-
5. See Mary Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and
Taboo (London, 1966).
56. This is reflected in the final item of the list of “injuries and usurpations” attributed to
George Il in the Declaration of Independence: “He has excited domestic insurrections amongst
us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian
Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and
conditions.”
57. See Edward Burns, Character: Acting and Being on the Pre-Modern Stage (New York,
1990).
nize cruelty for what it is. Thus for many people the trouble with tor-
ture is not the absence of rules but the fact that its practice evokes
horror. And horror is not an interpretation but a sedimented predi:
position. Hence the typical debate about torture in liberal society:
Should it be condemned as a self-evident evil or judged (reluctantly) as
occasionally necessary that therefore needs to be defined by legal rules
in order to avoid gratuitous cruelty?
Most people (other than torturers) are horrified at witnessing torture.
Ironically, torture by state officials can sometimes be reconciled with—
even if not quite authorized by—the law that prohibits it by resorting to
legal argument, especially when it has to do with saving the lives of nation-
als. Thus, when the Israeli Supreme Court refused to give a legal rule
specifying conditions under which torture can be used, it proposed that
the torturer may have a “necessity defense” were a criminal charge brought
against him.5* It is not his character that is in question but his legal capacity.
“Necessity defense” is based on the principle that the nation-state is invi-
olable and must be defended at any cost. As there is no question of terror-
ists being able to claim such a defense, their violence meets with greater
moral condemnation. Paul Kahn—who cites this opinion—elaborates the
notion of the sacred attached to the nation-state: “what is most important
about our political culture [is] our willingness to kill and be killed. . .. At
stake in the existence of the nation-state has been the presence of the
sacred. The polity begins as a particular community with its own history
only when the finite goings-on of individuals are touched by the sacred.”
Of course the state is not a living human individual, but it is accorded the
sacred quality that individual human life has. This may be because, as
Thomas Hobbes famously described it, the state is a “mortal god,”® but it
may simply be because the state is endowed with (a claim to) life eternal.
The state is not itself human—in fact its transcendence may be part of its
claim to sacredness (Emile Durkheim thought that that was what defined
society)—but it gives essential form to individual humans. Its ongoingness
comes to be seen as the force that increasingly gives shape to individual
lives, and, like the Kantian moral subject, the state produces and imposes
on itself laws of its own.
58. Quoted in Paul W. Kahn, Sacred Violence: Torture, Terror, and Sovereignty (Ann Arbor,
Mich., 2008), p. 182 n. 9.
59. Ibid., p.173.
60. Thomas Hobbes, Leviathan, ed. A. P. Martinich and Brian Battiste (New York, 20m), p.
161,

The Sacredness of Life
But what precisely is the sacred? In an essay on the moral dilemmas of
humanitarian movements such as MSF, Didier Fassin writes about the way
each nation-state at war describes the deaths of its own soldiers as sacrifice
and the deaths of enemy civilians who are not terrorists as collateral dam-
age: “In contrast with these ‘human sacrifices,” the humanitarian organi-
zations can claim the sacredness of all lives. Whereas Western armies
consider life sacred only when it is on their side, MSF and its colleague
organizations defend the universal value of lives.”®" A few pages later, Fas-
sin comments on Ophir’s provocative remark to the effect that both ter-
rorists and humanitarians challenge sovereignty: “terrorists (especially
suicide bombers) stake their own lives; humanitarians do not. The former
reject the sacredness of life—theirs and others’. The latter claim it as a
supreme value—definitely for the distant others, but even more so for
themselves.”® In Fassin’s view, that helps to explain why the former evokes
horror and is therefore seen as barbaric.
These are interesting suggestions. It is generally recognized that, as a
concept, sacredness seems to be ideally linked not only to the state but also
to humanity, to human life as a universal. However, before turning to the
idea of human life, one might ask whatlife is. Foucault famously addressed
the question of what life is before he went on to talk directly about bio-
politics. In Classical taxonomy, Foucault wrote, organisms are described
in terms of four variables: form, number, arrangement, and magnitude.
From the eighteenth century onward function becomes the dominant
concern: “it is life in its non-perceptible, purely functional aspect that
provides the basis for the exterior possibility of a classification.”® Not only
is this shift from a taxonomic to a synthetic notion of life now the object of
biology, Foucault claimed, it is itself the primary condition for the possi-
bility of the modern science of biology. But modern biologists have a dif-
ferent view. “Life,” insists Ernst Mayr in his magisterial history of
biological thought, “is simply the reification of the processes of living.
Criteria for living can be stated and adopted, but there is no such thing as
an independent ‘life’ in a living organism. The danger is too great that a
separate existence is assigned to such ‘life’ analogous to that of a soul.”** At
61. Didier Fassin, “Inequalities of Lives, Hierarchics of Humanity,” in In the Name of

Humanity, p. 244.
62. Ibid., p.247.
63. Foucault, The Order of Things: An Archaeology of the Human Sciences, trans. pub. (New
York;, 1973), p. 268.
64. Ernst Mayr, The Growth of Biological Thought: Diversity, Evolution, and Inheritance
(Cambridge, Mass., 1982), p. 74. My thanks to Gil Anidjar, whose “Meaning of Life” directed
me to Mayr, as well as to André Pichot.
the conclusion to his massive collection of and commentary on historical

texts on the nature of life, André Pichot observes that modern biology
ignores the notion of life as an existent altogether and is content with
analyzing objects that common sense calls living, an analysis that demon-
strates their possession of several identical physico-chemical characteris-
tics. When a developmental process is in itself regarded as life it becomes,
he says, a metaphysical idea rather than the basis of experimental science.®
My point is that whether the object of biological sciences is to think of
life as a distinctive process that comes to an end in each organism or as a
distinctive physico-chemical organization that eventually disintegrates,
life as a metaphysic may be coming to an end and with it some aspects of
taken-for-granted humanity. The boundaries of biology have increasingly
dissolved even as the redefinition of living things in terms of information
has reduced it to technology.*® The revolutionary developments in artifi-
cial intelligence and genetic engineering are said to have extended our
conception of life by appropriating our concept of the designed machine,
but in the process each concept undermines the other. What we are faced
with now is neither life nor machine but the possibility of living machines
with replaceable parts that are together animated by code. But the question
I want to pose here is this: How do we apply the concept of sacredness to
life as a universal and then go on to say that humans must be legally
protected precisely because each individual is uniquely human? The an-
swer hitherto has been that humans do not belong to a historically consti-
tuted category; they partake of a universal, unchanging essence. What,
however, happens to the notion of humanity’s sacredness given the new
developments in genetic engineering, robotics, and others?
My thought is that we might begin, not with the law’s definition of the
destruction of human life as a crime because it violates what is sacred, but
with the response itself that sees such an act as horrible violence and by that
response apprehends life as sacred.” This shift would direct attention to
the notion as it has come to be used and translated from and into different
languages. At least since the nineteenth century the sacred has been asso-
65. See André Pichot, Histoire de la notion de vie (Paris, 1993), p. 937.
66. See Michael Dillon and Julian Reid, The Liberal Way of War: Killing to Make Life Live
(New York, 2009), on the political implications of the shift to information that merged biology
with other sciences, thus going beyond Foucault’s idea of biopolitics. For an anthropological
study that covers some of this ground (and more), see Abou Ali Farman Farmaian, “Secular
Tmmortal” (PhD dis ., the City University of New York, 2012). T am grateful to both these
works—and particularly to the latter—for having alerted me to the question of redefining
human life through modern developments in science and technology.
67. A very preliminary gencalogy of the sacred is attempted in Talal Asad, Formations of the
Secular: Christianity, Islam, Modernity (Stanford, Calif., 2003), pp. 30-37.
ciated with all that is mysterious in religion, with the generation of fear and
awe in believers, and with the imperviousness to rational explanation. Its
secular uses—as in talk about the sacred character of the sovereign terri-
tory, constitution, and the spirit of one’s own nation—are metaphorical
but not therefore without force of their own. It should be noted that in the
history of the church profane things, persons, and spaces were rendered
sacred. The lives of saints, hagiographies, were presentations of sacredness
to be heard as a story of wonderful signs, a narrativized life beginning with
miraculous birth and ending with wondrous death. What is special, what is
sacred, is the power expressed in and by the story to those who would hear
and the reverence such hearing demanded. Of course sacredness was never
actually distributed equally among all human lives—and I refer here not
just to the difference between the killing of Christians and of infidels. The
killing of Christ himself (the violent ending of a divine/human life) was the
sacred event for Christianity. But the visible church did not (could not)
declare that that sacrifice, that killing, made life inviolable—although it
did teach that Christ’s death on the cross was at once sacred and redemp-
tive, that it gave birth to life eternal to all who would believe.
Usages of the Christian term sacred (and its cognates) differ from words
that are commonly offered as equivalents in other languages and that are
attached to different behaviors and sensibilities, to different language
games, different forms of life.® If a word by which repugnance, awe, dis-
tance, censure, reverence, circumspection, and fear (among other emo-
tions and attitudes) are varyingly combined in different practices, then the
assumption that the sacred is a universal concept is rendered highly prob-
68. For example, in Islamic religious discourse, harin is used to prohibit particular kinds of
behavior—not because it has horrific consequences but simply because it is forbidden by God. Some
transgressive behavior (hariim) may evoke horror, some may not. The verbal form harrama is used
repeatedly in the Qur'an with the sense of “forbidding,” as in the injunction “la taqtult al-nafs allati
harrama allahu illa bi-l-haqq” (do not kill any person, [something] God has forbidden, except
lawfully) (6:151). (The word harrana in this verse is often rendered into English s “that which God
has made sacred.” I regard this a questionable translation because [a] it implies that the prohibition
relates only to lie that has been made “sacred” by God, and [b) it renders the verb harrama to mean
“made sacred,” with all the overtones of that mysterious status and not simply “he has forbidden.”)
‘The verb harima not only means to be “forbidden” but also “to make something immune,” and “to
deprive or bereave,” and “to withhold or deny” hirmin, much used in contemporary political
thetoric, refers to sociocconomic deprivation. The geographical center of Iskam, the Ka'ba in Mecea,
is called a haram, a space in which the shedding of blood and the carrying of arms—in fact, any
display of violent behavior—are strictly forbidden. At another level, harm belongs to the ethical-
legal-political tradition of the shari‘a, part of a five-fold evaluative scale ranging from mandatory,
through approved, and neutral, to disapproved and forbidden; it does not thercfore have a polar
opposite in the way that sacred is contrasted with profane. My most general point i that the English
word sacred together with its cognates (as well as equivalents in other major European languages) is
rooted in a modern secular form of life and has no parallel as a concept in premodern times.
“This content downloaded from 165.123.34.86 on Wed, 21 Jan 2015 01:16:11 AM,
All use subject to JSTOR Terms and Conditons
lematic. As Ludwig Wittgenstein would say, the grammar of the sacred

articulates the form of life of those who use it. The sacred, therefore, does
not explain things universally; it presents ways of relating to, experiencing,
and talking about particular events in life. Put differently, the sacred is a
Christian concept—if not in origin, then in how it has been inherited in
modern secular discourses through a Christian history, where it once re-
ferred to the powers of the priesthood and of the Eucharist with its promise
of eternal life. The modern secular concept of humanity as sacred echoes
this but in a very different key: humans killed in war are officially described
as having sacrificed their lives in defense of their country.
Interestingly, it is not only life but death too that incites the language of
the sacred in secular cultures. In every modern secular state there are laws
prohibiting the desecration of dead bodies.® Here the sense of desecration
takes the sacred for granted precisely because a corpse is a human remnant
(animal corpses don’t receive the same treatment, at least in modern sec-
ular society). The circularity is evident. The shock expressed a year ago in
official quarters by an online video of US Marines in Afghanistan urinating
on Afghan corpses raises interesting questions about the sacredness of life.
Thus the Department of Defense spokesman, Captain John Kirby, refer-
ring to the video, declared that: “Regardless of the circumstances or who is
in the video, this is egregious, disgusting behavior. It’s hideous. It turned
my stomach.””* Secretary of Defense Leon Panetta condemned the footage
“in the strongest possible terms” and promised an investigation;” Secre-
tary of State Hillary Clinton found the behavior deplorable and utterly
inconsistent with American values.”> Leaving the embarrassment aside,
69. Sce, for example, New Jersey Code of Criminal Justice, “Title 2C,” 2009, sect. 2C:22,
law justia.com/codes/new-jersey/2009/title-2c/scction-2c-22/2¢-22-1/:
1.2 A person commits a crime of the second degree if he: (1) Unlawfully disturbs, moves or
conceals human remains; (2) Unlawfully desccrates, damages or destroys human remains;
or (3) Commits an act of sexual penetration or sexual contact, as defined in N.J.8.2C:14-1,
upon human remains. b. A person commits a crime of the third degree if he purposely or
knowingly fails to dispose of human remains in a manner required by law. c. As used in this
act, “human remains” means the body of a deceased person or the dismembered part of a
body ofa living person but does not include cremated remains.
70. “Marine ‘Urination’ Prompts Investigation,” CNN.com, www.cnn.com/2012/01/12/us/
video-marines-urinating/index htmlzon.cnn=4
71. Quoted in Raf Sanchez and Dean Nelson, “US Defense Secretary Leon Panetta Condemns,
“Utterly Deplorable’ Bahaviour of US Marine ‘Urination Video, 12 Jan. 2012, Telegraph,
wwnw.telegraph.co.uk/news/worldnews/asia/afghanistan/go11075/US-defence-secretary-Leon
~Panetta-condemns-utterly-deplorable-behaviour-of-US-Marine-urination-video. html
72. Hillary Rodham Clinton, “Remarks with Algerian Foreign Minister Mourad Medelci,”
US Department of State, 12 Jan. 2012, www.state.gov/secretary/20092013clinton/rm/2012/01/
177969.htm

and the complaint that a military code of conduct had been violated, what
was not explicitly discussed was the general sense that the Marines had
desecrated corpses. What it reveals is the symbolic violation of life’s sacred-
ness through an exhibition of contempt and loathing for its container. Is
this the reason why the act evoked horror and why it seemed appropriate
to threaten its perpetrators with legal sanctions?
The Violence of Sovereignty

I turn finally to the question of why the imminence of massive state
violence does not provoke horror. I begin by citing an extract from Daniel
Ellsberg’s memoir about the answer given by the Joint Chiefs of Staff (JCS)
to a question he had drafted for President John Kennedy in 1961 on the
latter’s order. The question was: ““If existing general war plans were carried
out as planned, how many people will be killed in the Soviet Union and
China alone?”” Their estimate gave two figures: “The lower number was
275 million dead. The higher number was 325 million.” Ellsberg then
drafted a follow-up question about countries contiguous to the Sino-
Soviet bloc, and further estimates came back quickly. “The total death toll
from our own attacks, in the estimates supplied by the JCS, was in the
neighborhood of five to six hundred million. These would be almost en-
tirely civilians.” Ellsberg then concludes that this amounts to “a hundred
Holocausts.”” Defenders of the Enlightenment are surely right that it has
bequeathed unique standards of universal concern for all of humanity. But
to this one should add that these standards are typically expressed in care-
ful estimates of pain and suffering. Premoderns—including primitives—
did not engage in such calculations (the science of statistics had not yet
been devised), and they were consequently more indiscriminate in their
killing than civilized moderns are. What Ellsberg points to, however, is a
scale and kind of human destruction for which there is no adequate way of
making comparisons, no possibility of effective judgment by the law, no
meaningful space for humanitarian action. Neither bodily and emotional
self-control (“the civilizing process”) nor secular reason can be expected to
preclude such an event.
In 1996 the World Health Organization sought an advisory opinion
from the International Court of Justice about the legality of the threat or
73. The proper treatment of corpses varics, of course, among different cultures: burial,
burning (on a funeral pyre or in a modern incinerator), exposure to natural decay and to
vultures (as in the Zoroastrian Towers of Silence). Members of each culture often regard the
death customs of the others with contempt, loathing, or amusement.
74. Daniel Ellsberg, Secrets: A Memoir of Vietnam and the Pentagon Papers (New York,
2002), pp. 58, 59. Ellsberg adds that NATO retains a first-use policy.

use of nuclear weapons. The court eventually replied that there was neither
authorization nor prohibition in international law, that such weapons
were unlawful if they failed to meet all the requirements of the UN Charter
or all the principles and rules of humanitarian law. Its final conclusion
stated that “in view of the present state of international law . . . and of the
elements of fact at its disposal, the Court is led to observe that it cannot
reach a definitive conclusion as to the legality or illegality of the use of
nuclear weapons by a State in an extreme circumstance of self-defence, in
which its very survival would be at stake.”” Clearly, the phrase “extreme
circumstance” in this statement refers not to the massive slaughter of en-
tire populations but to the life of a political entity. In that sense the sen-
tence I quoted earlier from Foucault on “the biological existence of a
population” is not quite correct. The court’s reference to “extreme cir-
cumstance” indicates that limitless violence (and the terror unleashed by
such violence) may be necessary if that is held by a sovereign state to be a
matter of its survival. The law, as enunciated by the court, is based on the
assumption that the sovereign state is a legal person, that as such it has the
right to exist and therefore an absolute right to defend itself. Thus if the US
government—or Israel or Pakistan or India for that matter—decided at
some point that its survival as a sovereign state was at stake, then the
genocidal use of nuclear weapons would not be illegal. (Think of the Cu-
ban missile crisis.) Put in patriotic language, the state’s being must be
defended against enemies whatever the cost.”® This claim to sacredness is at
once familiar from Christian history and yet entirely new in its secular
perspective.
My point is not that the court gave a nuclear first strike the stamp of
legality. What it said, in effect, was that given the assumptions on which
international law is based (state sovereignty, the certainty of the law, the
right to use violence necessary for self-defense), it could not declare deci-
sively whether the perpetration of such an act against an opponent was
legal or illegal, even if its use were to lead to the destruction of humanity.
The court is simply concerned to determine legal responsibility for the
perpetration of violence against a foreign population even before war has
been declared (the decision to discharge nuclear warheads must be made
and acted on in seconds). It must give one clear answer; the judgment’s
certainty requires that it be singular, and its authority requires the final
elimination of all other possible answers. (Therefore the panel of judges’
75. International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, 8 July
1996, p. 263, ww rg/docket/files/9s/7.495.pdf
76. On Israel’s nuclear policy, see the ominousy titled study by Seymour M. Hersh, The
Samison Option (New York, 1991), esp. the epilogue.
Critical Inquiry / Winter 2015
split decision had to be resolved by the president’s vote.) The panel pres-
ents its judgment as the application of a universal principle to a particular
case. Legal certainty is achieved in this act of judging, even though the
content of the judgment affirms uncertainty. The judgment pushes the
question of responsibility aside but not in an arbitrary way. It establishes a
singularity of meaning by pointing to a space that is at once a product of
the law and yet a space where acts stand beyond legal responsibility. The
court has no jurisdiction (the legal right to pronounce the law). The geno-
cidal violence of a nuclear first strike cannot be addressed directly because
it is a potential act, not an actual one. But the substance of the judge’s
decision, at once within and without the law, makes it possible for the
nuclear state to threaten to wage nuclear war without incurring responsi-
bility.”” The reason for this is, partly, that the state (Leviathan) claims
eternal life and is hence entitled to defend itselfby any means possible, even
by waging or threatening to wage nuclear war in which all of humanity
might be destroyed. But perhaps more important is that because the state
is not itself human its involvement in massive violence—especially the
violence of a possible future nuclear holocaust—pushes horror outside
popular consciousness. It is the perpetration of violence by human agents
against other humans that is emotionally graspable, even though the way
in which modern law works often serves to diffuse the responsibility of
agents for violence and cruelty when they act on behalfof the state.
On the Sacredness of Human Life

Our sense of horror thus seems to be largely directed at individual acts,
actual and potential, those that threaten the sovereign state’s life not by
heavily armed enemy states but by militants who perpetrate their violence
against the state from within. To examine this latter point I cite Taylor
again, this time from his discussion of Fyodor Dostoevsky’s The Devils, in
which he seeks to explain terrorism as a monstrous form of violence in our
time:
One of Dostoevsky’s central insights turns on the way in which we
close or open ourselves to grace. The ultimate sin is to close oneself,
but one’s reasons for doing so can be of the highest. ... We are
closed to grace, because we close ourselves to the world in which it
77. Even today the US arsenal contains 5,113 warheads, and yet little public attention s paid
to this fact. The irrationality of this kind of violence, as having no one responsible for it, should
be evident. Vigorous attempts, including threats of war, are being made by the United States
today to prevent small countries from acquiring nuclear weapons—although the doctrine of
nuclear deterrence maintains that the possession of such weapons by states that are at enmity
with cach other guarantees peace between them.
circulates; and we do that out of loathing for ourselves and for this
world. . . . Rejecting the world seals one’s sense of its loathsomeness
and of one’s own, insofar as one is part of it. . . . Dostoevsky . . . gives
an acute understanding of how loathing and self-loathing, inspired by
the very real evils of the world, fuel a projection of evil outward, a
polarization between self and world, where all evil is now seen to re-
side. This justifies terror, violence, and destruction against the world;
indeed, this seems to call for it. No one, I believe, has given us a
deeper insight into the spiritual sources of modern terrorism or has
shown more clearly how terrorism can be a response to the threat of
self-hatred.”
Taylor’s Christian idea that terrorism, a quintessential form of “evil,”

points to indifference toward what Christians would identify as sacred
power (what Taylor calls grace) may provide another clue to why certain
spectacles of suffering provoke moral outrage, why the enormity of global
destruction, such as nuclear warfare between states, does not disturb lib-
eral equanimity whereas the violation of the individual human body’s
sanctity, the very idea of hacking an individual to death or perpetrating
what is called gratuitous cruelty toward individuals, horrifies. In finding
some acts loathsome it’s not merely suffering but “a violent and obscure
disgust of being against the threat that seems to appear from an exorbitant
outside or inside, beyond what is possible, the tolerable, the thinkable.””*
The abstraction called life, the object of care and order by the modern
nation-state as well as the object of sacrifice for the nation-state, echoes the
life eternal offered to all humans through Christ’s sacrifice. And each hu-
man self, the location of that abstraction and the subject of redeeming
faith, is now describable as sacred. One should note that the Christian
tradition was not always unchanging in its attitude to violence done to
humans. In the early Middle Ages killing humans in battle—even a battle
the church itself had approved of—was regarded as a sin that had to be
expiated. But the emphasis was not so much on the absolute value of life as
on the defilement that killing occasioned and the penances that had con-
78. Taylor, Sources of the Self, p. 4s1.

79. Julia Kristeva, Pouvoirs de Ihorreur (Paris, 1980), p. 9. Echoing Mary Douglas, Kristeva
writes that it is not lack of cleanliness or health that causes loathing but that which disturbs an
identity, a system, an order: “Ce qui ne respecte pas les limites, les places, les régles. L'entre-
deux, Pambigu, le mixte. Le traitre, le menteur, le criminel 2 bonne conscience, le violeur sans
vergogne, le tueur qui prétend sauver” (p. 12). One might suggest, however, that it is not the
breaking of rules that is at issue but the spontancous identification of a character as evil because
he flouts what is regarded as sacred.
sequently to be undertaken to purify the sinner.* This earlier attitude

might be analyzed as an encounter with the sacred (a dangerous force that
operates within a bifurcated space of pure and impure as well as sacred and
profane)® but not in the sense used by secular discourse when talking
about the sacredness of all human life. At any rate, the doctrine changed in
the thirteenth century with the Crusades when killing (the infidel) was no
longer a sin but became a means of purifying sin. In his endorsement of the
Knights Templar, St. Bernard of Clairvaux put it thus:
But the Knights of Christ may safely fight the battles of their Lord,
fearing neither sin if they smite the enemy, nor danger at their own
death; since to inflict death or to die for Christ is no sin, but rather,
an abundant claim to glory. In the first case one gains for Christ, and
in the second one gains Christ himself. The Lord freely accepts the
death of the foe who has offended him, and yet more freely gives him-
self for the consolation of his fallen knight.
The knight of Christ, I say, may strike with confidence and die yet
more confidently, for he serves Christ when he strikes, and serves
himself when he falls. Neither does he bear the sword in vain, for he is
God’s minister, for the punishment of evildoers and for the praise of
the good. If he kills an evildoer, he is not a mankiller, but, if T may so
put it, a killer of evil.**
The ethics of military killing thus becomes directly concerned with inten-
tion (whether virtuous or vicious, religious or secular) as distinct from
effect. One consequence of that shift is that the paradox of benevolence
and empathy on the one hand combining with cruelty and violence on the
other tends to get obscured in the modern context.
Military interventions today are aimed not simply at protecting victims
but at protecting them from evil. Certainly the last two American presi-
dents have initiated and extended the global war on terror and publicly
described the enemy as evil.® And they have each been rewarded by being
elected to a second term, despite their curtailment of domestic civil liber-
80. Sec H. E. J. Cowdrey, “Bishop Ermenfrid of Sion and the Penitential Ordinance
following the Battle of Hastings,” Journal of Ecclesiastical History 20 (Oct. 1969): 225-42.
81 This sense that the ambiguity of the sacred requires rites to approach it—on pain of
death to the violator as well as to others—is the theme of Henri Hubert and Marcel Mauss,
Sacrifice: ts Nature and Functions, trans. W. D. Halls (Chicago, 1967).
82. Bernard of Clairvaux, “On the Life Style ofthe Knights of the Temple,” In Praise of the New
Knighthood, trans. Conrad Greenia, www.the-orb.net/encyclop/religion/monastic/bernard html
83. See, for example, John Blake, “How Obama’s Favorite Theologian Shaped His First Year in
Office,” CNN.com, 5 Feb. 2010, www.cnn.com/2010/POLITICS/o2/0s/Obama.theologian/index
html
ties and flouting of international laws in that war. The fearful citizenry
seems to agree that evil cannot be fought if state violence is limited a priori.
(Carl Schmitt’s definition of politics in terms of friend-enemy is closer to
liberalism as it now finds itself than either he or his liberal critics would be
prepared to concede.)
The intellectual to whom American policymakers owe most ideologi-
cally is Reinhold Niebuhr, a theologian who has been and remains today a
strong influence on the makers of American foreign policy—from George
Kennan to Barack Obama. Central to Niebuhr’s theology is his doctrine of
sin. Sin is not simply the propensity to do evil. Paradoxically, in the form of
institutionalized killing and destruction, sin can become a means of com-
bating evil as St. Bernard of Clairvaux had argued centuries earlier. For
Niebuhr this is tragic because in using power to defend the world against
great evil one is often obliged to act sinfully, and so one sacrifices one’s
virtue—perhaps one’s soul—in performing this duty. In this view, the
perpetration of cruelty by the military is ultimately motivated by compas-
sion when it aims at ending greater human suffering; means and ends are
discursively linked together so that they can be viewed as essentially and
not accidentally connected. Obama put his endorsement of Niebuhr this
way: “there’s serious evil in the world, and hardship and pain. And we
should be humble and modest in our belief that we can eliminate those
things. But we shouldn’t use that as an excuse for cynicism and inaction.”®+
It is not immediately clear what Obama means. He does not simply mean
that there are conditions (and people) that threaten American lives and the
interests of the US; he refers theologically to an ineffable power confront-
ing the spirit of God, a power that evokes horror among the faithful be-
cause it corrupts and destroys all that it touches in the world. Whatever
Obama means, evil is a notion frequently employed by humanitarians to
describe the disasters they seek to address.
The connections among religion, ethics, and violence remain compli-
cated even in our age of secularity. And of course the terrorism of nonstate
actors is not the only place where those connections can be traced. Thus on
12 September 2001, William Cohen, one-time secretary of defense under
President William Clinton wrote: “In a very real sense, America itself must
embark on its own holy war—not one driven by hatred or fueled by blood
but grounded in our commitment to freedom, tolerance and the rule of
law and buttressed by our willingness to use all means available to defend
84. Quoted in David Brooks, “Obama, Gospel and Verse,” New York Times, 26 Apr. 2007,
www.nytimes.com/2007/04/26/opinion/26brooks.htmlz_r=1&

these values.”™ Holy war is collective violence in a sacred cause, carried out
with all the solemnity of a ritual; it should not be confused with a just war,
although the two do overlap in some degree. Cohen’s remarks indicate one
of the striking ways in which religious language gestures toward secular
violence in our time. For although the phrase holy war seems to invoke
transcendentalism, it is here a secular reference to worldly power, to Ame-
rica’s right to use violence anywhere and at any time, overriding interna-
tional law. It is a direct reference to its own super power, to its ability to
override any item of law. The claim that its global war on terror is holy
differs significantly from a medieval crusade. Unlike the Crusades that
sought to recover a sacred land from the infidel, today’s US war on terror
seeks, unendingly, to export America’s secular anxieties abroad. But, ar-
guably, as an expression of the US’s ability to use global violence for the
sake of its sacred rights and duties, that war asserts a quasi-theological
reason. [ am not claiming that today’s militarism should be seen as a direct
descendent of medieval attitudes, still less as Christianity in disguise. The
language is plain in its use, not its origin; although parts of its vocabulary
are drawn from another time—and another form of life—it seeks to infuse
passion into a very different war. Today, the war is conducted in the name
of humanity, and it is secular law not theology that protects humanity.
Epilogue
The exercise of violence that is startlingly new, that breaks with so much
of what has gone before, lies in the techniques for reconstructing human
beings through genetic engineering and artificial intelligence and through
the marketing of copyrighted information by which robots, cyborgs, and
genetically enhanced neo-humans can be made.* As Arendt once noted,
all activities directed at making or remaking natural material involve an
85. William S. Cohen, “American Holy War,” Washington Post, 12 Sept. 2001,
www.cohengroup.net/news/op_ed/op_edogizon.cfin; my emphasis.
86. The social science literature on this subject is already very considerable. James Hughes
writes enthusiastically of the new developments: “In the twenty-first century the convergence of
artificial intelligence, nanotechnology and genetic engincering will allow human beings to
achieve things previously imagined only in science fiction. . .. We will merge with machines,
and machines will become more like humans” (James Hughes, Citizen Cyborg: Why Democratic
Socicties Must Respond to the Redesigned Human of the Future [Cambridge, Mass., 2004], p. xii).
People opposing this new trend Hughes labels contemptuously “bioLuddites,” those “rejecting
liberal democracy, science and modernity” (p. xii). The only rational challenge of the scientific
future, in his view, consists in ensuring that liberal democratic government provides all with an
equitable distribution of access to the new developments. A far more thoughtful response to the
implications of genetic enginecring is Michael Sandel, The Case against Perfection: Ethics in the
Age of Genetic Engineering (Cambridge, Mass., 2007).

element of violence," regardless of the maker’s benevolent motives. The

basis of life is its DNA. DNA is essentially information; information is
artificially reproducible and remakeable. This raises the general question:
What are the limits of convertibility for humans; in other words, if there
are limits to what constitutes the human, what are they, and why, indeed,
are there limits? If, however, there are no limits, how does this affect hu-
manitarianism that is supposedly concerned to defend the sanctity of hu-
man life?
There are several other questions about the new conditions of human-
itarian military action: How does the fact that the new inhabitants of our
world (killer robots, in other words) can be industrially manufactured
radically change our conception of what their production and destruction
means to those who employ them and those who survive their violence?™
(Drones are not autonomous weapons because they are controlled by hu-
mans.) If life is increasingly defined in terms of information, what is the
difference between an autonomous self in war and an autonomous
weapon? Do neo-humans, who look like paleo-humans and act like them
in hostilities—but with superior intelligence—have the right to life as au-
tonomous selves, or do they, as autonomous weapons, only have the ability
tokill? Would their destruction constitute a violation of the sanctity of life
(since life is now essentially embodied information) or merely an eco-
nomic loss? It is said that without the human quality of compassion robots
would be unable to follow the civilized rules of war (especially proportion-
ality and necessity), which would endanger civilians. But how effective are
these rules for paleo-human warriors in the new definitions of life? Critics
have argued that it would be difficult to determine who would be punish-
able for crimes of war committed by robots because it would be unfair to
punish the manufacturers or programmers or commanders as opposed to
87. See Arendt, Between Past and Future: Eight Exercises in Political Thought (New York,
1983), p. 111,
88. The production of killer robots is no longer science fiction. A campaign has recently
been launched by a number of NGOs in the UK urging the government to strengthen its formal
renunciation of the development and use of autonomous weapons; see Campaign to Stop Killer
Robots, www.stopkillerrobots.org/2013/04/campaign-launch-in-london/. The US defense
department has stated its policy regarding the development of autonomous weapons in a
directive; sce Department of Defense, “Autonomy in Weapons,” Department of Defense
Directive, no. 3000.09, 21 Nov. 2012, fas.orgirp/doddir/dod/d3000_o9.pdf. For a critical review
of the directive by Human Rights Watch, see International Human Rights Clinic, “Review of
the 2012 US Policy on Autonomy in Weapons Systems,” Human Rights Watch (April 2013),
www.hrw.orgsites/default/files/ related_material/2013_arms_killerrobotsdodmemo.pdf. Critics
point out, however, that apart from practical problems (most weapons research carried out in
the US is done in the private sector), the definition of critical terms (human intervention, in
other words) remains unclear.
Critical Inquiry / Winter 2015 4 7
the actual perpetrator, and punishing the killer robot would deprive vic-
tims of the satisfaction that retributive justice has finally been done.* To
kill a guilty robot would simply be to punish a machine. But since lethal
violence in modern war is made possible only through complicated
mediations involving many hands and minds, why can’t manufacturers,
programmers, and commanders be held accountable? In any case, neo-
humans may be endowed with all the crucial qualities of the paleo-human:
autonomy, intelligence, information, and will. What is it that makes them
unsuitable for punishment? The answer that suggests itself lies in their
inability to suffer—their lack of passion. The neo-human cannot be the
object of retributive justice because he or she cannot
feel pain. The ability
to feel pain is a precondition not only for compassion but also for
punishment.
Most critics of the new developments have been largely concerned with
distinguishing the lawful use of violence from its unlawful use and with
liberal expressions of disquiet about the construction of robots as soldiers.
Human killers are acceptable—indeed necessary—both as participants in
just warfare (especially in military humanitarianism) and as violators of
the laws of war, but robots are not. Is this a reflection of the deep-
rootedness of the modern commitment deriving from theology to life as
sacred? Perhaps the imminent prospect of autonomous weapons should
prompt us to think more critically not only about the continual (and con-
tinually failed) efforts to tame collective violence and reduce human suf-
fering but also about the contradictory character of humanitarianism as
the painful redemption of humanity. The mutually subversive principles
of information about life and autonomy of the subject (so deeply anchored
in our moral culture) may not be sustainable together for much longer in
our interdependent, capitalist world.
89. Human Rights Watch, together with International Human Rights Clinic, has
published a useful report entitled Losing Humanity: The Case against Killer Robots, 19 Nov.
2012, www.hrw.org/reports/2012/11/19/losing-humanity. I am grateful to Tom Porteous for
providing me with this report.

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Reflections on Violence, Law, and

“This content downloaded from 165.123.34.86 on Wed, 21 J

ities, and the humane treatment of prisoners. The assumption in

TALAL ASAD is a distinguished professor of anthropology at City University of

decline in human violence in terms of the growth in refined feelings attribut-

sublime, in which he traced the ambiguous connections between terror

Humanism, Humanity, Humanitarianism

13. Thus Burke:

the innumerable books dealing in one way or another with humanity,

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matter, was humanity regarded as the hero of a narrative in which liberty

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human, and the process of salvation requires repentance and penance.

“This content downloaded from 165.123.34.86 on Wed, 21 J

gion, the preference for colonialism over enslavement.”** Todorov’s ac-

the human from the interchangeability of the commodity, the self-

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ries traces of the Christian idea of redemption, of Christ the Redeemer of

Historical and Psychological Origins of Humanitarianism

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One difficulty with such attempts at a neat conceptual separation between

39, Foucault saw in this the logic of racist violence:

serve a community of “people like us,” typically expressed in a nation-

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expand the scope of legal killing by complicating responsibility is less

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54, In her excellent ethnographic rescarch on humanitarian movements, Annette Jansen

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61. Didier Fassin, “Inequalities of Lives, Hierarchics of Humanity,” in In the Name of

the conclusion to his massive collection of and commentary on historical

lematic. As Ludwig Wittgenstein would say, the grammar of the sacred

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The Violence of Sovereignty

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On the Sacredness of Human Life

Taylor’s Christian idea that terrorism, a quintessential form of “evil,”

78. Taylor, Sources of the Self, p. 4s1.

sequently to be undertaken to purify the sinner.* This earlier attitude

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“This content downloaded from 165.123.34.86 on Wed,

element of violence," regardless of the maker’s benevolent motives. The

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