27th april 2018
Originally published in Spanish: “Violentamente”. Manuel Toscano. Voz Pópuli.
In a ruling dated on March 21st, the judge from the 2nd courtroom of the Supreme Court indicted thirteen secessionist leaders for rebellion. Much has been discussed, and remains to be discussed, in our country about the characterization of the acts under investigation as a crime of rebellion. There’s no shortage of legal experts and political analysts who have criticized the ruling because they understand that the behavior of the accused does not fit the requirements established in article 472 of the Penal Code for the crime of rebellion.
As the article states, “they are guilty of rebellion those who rose up violently and publicly” for any of the ends described next, the first and fifth of which are obviously relevant “1st Repeal, suspend or modify, totally or in part, the Constitution”; and “5th Declare the independence of a part of the national territory”. As there are few doubts that the secessionist leaders pursued both of those ends, the whole arguments revolves around the adverb “violently” that was added when the penal code was reformed in 1995. In other words, the question is if the typical element of violence is present in the acts described in the indictment as a necessary condition for rebellion.
The legislator used an adverb, and that lets the judge make a distinction with the noun “violence”, a distinction that some commentators find murky. Nonetheless in philosophical literature the distinction between “acting violently” and “acting with violence” is well known and was pointed out by John Harris many years before Llarena [the Supreme Court judge -TN]. The adverb describes the way in which we act more than a specific class of actions and, as Harris states, almost any action could be carried out violently if it is performed too vehemently, impetuously or in a furious or scorned way. Acting with violence, though, refers to what is being done: using force on (or against) people or things. In ordinary language, as it’s common, these usages overlap and conflate. This reminds us of the significant conceptual muddle around violence and its connection with other notions like force, coercion, aggression, intimidation, etc. This is known by anyone who peruses the related literature in philosophy and the social sciences.
If we tend to the noun, discussions revolve around its application criteria. One feels like cutting slices along a continuum, or shuffling several traits that can be present with varying degrees. It is obvious that the mere use of force is not enough to speak of violence. We have to consider what is the purpose. In the specialized literature, it’s common to define violence by its harming or destructive purpose: those acts of force by which harm or the infliction of suffering are intended. Typically, we think of injuries or bodily harm, if it’s about people, but many authors don’t want to leave out other types of harm, like psychological damage.
Even more importantly, if we focus exclusively on injuries, we could be excluding another significant aspect. Because acting with violence is very close to verbs like “forcing” or “compelling” in the sense that they imply using force to prevail or to overcome the resistance posed by persons and things. I think this is a crucial point regarding the political use of violence. Physical harm may be the goal of the violent action or just a means to degrade the opposing party and limit it capability for action, subduing its will and submitting it to ours. This is also a better way to view the relationship between violence and intimidation, for it’s a way to instill fear and alter the other’s ability to decide; and the relationship with coercion, by which one prevails through threats of mere force.
Many authors have criticized this understanding of violence, centered in the intentional use of physical force, viewing it as too narrow, and they propose broader definitions, may be to the point of laxness. One of the most famous, Johann Galtung, reckons that there is violence wherever people are deprived of resources and opportunities of any kind, for example education opportunities, and he coined the term “structural violence” for situations in which the harms is not inflicted by anyone in particular. Other talk of “symbolic violence” or even “systemic”, thus relativizing the conceptual weight of physical violence. Even the aforementioned Harris held that acts of omission, such as not helping those in need, should be viewed as “non-violent violence” (now that’s an oxymoron!). As it can be seen, academic literature is far from a consensus on what constitutes violence and what doesn’t.
Naturally, in legal language terms acquire very specific meanings not necessarily aligned with common usage or social-science disquisitions. But the way violence is understood from a legal point of view also varies and we find ourselves facing a very broad concept again, for example those articles in the penal code that speak of “psychical violence”.
Going back to the ruling, in accordance with Supreme Court precedent, Llarena restricts himself to the most narrow definition of violence when he highlights in the account of the siege against the judicial commission that happened on September 20th, where a the crowd acted violently and also with violence: police cars were vandalized, objects were thrown at people and those under siege had their freedom of action curtailed. As the ruling states, it wasn’t just intimidation, but it finds in the acts “the inherent effect of violence”, to wit, an actual restriction of the authority agents’ ability to act as a result of the use of force. This suggests that violence entails the use of force to curtail others’ ability to act and resist.
Here’s the key that Llarena extends to later events on October 1st. The ruling details multiple acts of violence, physical clashes and injured police agents on that day. This doesn’t impress critics that consider it was low-intensity violence. They place the focus strictly on the severity of injuries and personal harm; for the degree of violence to be high, it would require deaths and large numbers of severely injured people. Or the use of weapons. It seems that in this whole argument, many simply conflate violent rise up with armed rise up. The ruling, if I’m interpreting it correctly, brings forth another way to view the issue: using crowds as a shock force to subdue the resistance from police forces and, thus, that of the state. Something more akin to mutiny or civil upheaval. Let’s not forget that it was an upheaval directed from the regional institutions, which subtracted an armed, 17,000-people-strong police force from its due allegiance to the law and used it to impede compliance of court orders.
Is this a correct interpretation of “rising up violently”? That for the courts to decide. The facts under investigation constituted an attack on constitutional order, which is the protected good by article 472. Fortunately, the crime of rebellion is not a common one. As Rosa Esperanza Sánchez Ruiz-Tello reminded, since the penal code was reformed in 1995 there hasn’t been a single sentence for that crime, so it is up to the Supreme Court to establish its interpretation in as difficult a case as this one. For the moment, we are at the stage of the preliminary classification of some acts, awaiting a trial in which the defendants will enjoy all of the guarantees afforded by a rule-of-law state.