english text 184 maintain that at the heart of the utility of law there is its condition of being a barrier against violence and inequality. Therefore, ideally, law would be “non-discrimination and non-violence”. Moreover, the nucleus of what law should prohibit, according to the well-known argumentation of John Stuart Mill in On Liberty, is harm to others. Therefore the first reflection on that “violence on the borders”, such as what we have seen almost live in Lampedusa, Ceuta or Melilla, is that many of those acts seem to coincide with what we consider crimes, insofar as they reveal disproportionate uses of force, disproportionate threats to life or physical integrity or freedom, in relation to what they seek to avoid, irregular arrival at our borders. We are speaking of harm in terms of basic needs, of primary legal property, of universal human rights. When we see such harm we can say that the borders now signify risk of death, death. There are those who would deny this premise, reminding us pragmatically that, ultimately, law is yet another form of violence. Their arguments are well-known. Is not law in itself institutional violence? Is that not the real meaning of Weber’s “monopoly on violence”, which means a monopoly on the law as an instrument of coercion and sanction? Is that not where the link between law, power and fear lies, the resort to fear as an instinctive political link (at least as much as the gregarious herd instinct, the wish to be a slave)? Is that not what was anticipated to us by the axiom primus in orbe deos facit timor, a constant feature in political theory, from Greece to the present day, which enunciates the power of fear as a factor of obedience? Does not that conclusion oblige us to make a realistic examination, such as the one proposed by Ross in his disagreement with Kelsen about the distinctive characteristic of law, which he said was not its validity but its coercive effectiveness? Even in art, that view is transmitted to us. For example, in the view of law as expressive violence, at least in the original societies, which Eastwood so expressively reflects in the dialogue in his prizewinning film Unforgiven, between the gunfighter/sheriff Little Bill Daggett (Gene Hackman) and gunfighter English Bob (Richard Harris), while Daggett is giving English Bob a terrible beating: — Little Bill Daggett: I guess you think I’m kicking you, Bob. But it ain’t so. What I’m doing is talking, you hear? I’m talking to all those villains down there in Kansas. I’m talking to all those villains in Missouri. And all those villains down there in Cheyenne. And what I’m saying is there ain’t no whore’s gold. And if there was, how they wouldn’t want to come looking for it anyhow. — English Bob: A plague on you. A plague on the whole stinking lot of ya, without morals or laws. And all you whores got no laws. You got no honor. It’s no wonder you all emigrated to America, because they wouldn’t have you in England. You’re a lot of savages, that’s what you all are. A bunch of bloody savages. A plague on you. I’ll be back. Of course there is another view, another way of understanding the relationship between force, violence and law. And Eastwood himself offers it to us as a counterpart in another film, Gran Torino. To be able to justify this other view, to distinguish the legitimate monopoly on violence from the violence exercised by those who have sufficient power to impose it, it is inevitable to turn to the idea of justice. But then, for it not to be a formal resource that is malleable in the hands of the powerful, it is necessary to relate the use of power to the notion of human rights, the historical concretion of that idea of justice. Only law that is understood as a struggle for law, Kampf um’s Recht (Ihering), which is resolved in a struggle for rights, Kampf um Rechte, can claim to be a different instrument from the recourse to violence. In other words, as Ferrajoli points out, law understood as the law of the weakest. But not in the pre-Nietzschean sense that Callicles showed us, as an ingenious, resentful resource of the weak against the strong individual, the real natural master, but as a recognition of the other, as a struggle for the rights of the other and particularly of the most vulnerable other. Well, it is precisely the most vulnerable person who seeks asylum, the one who in his own country does not have the right to have rights, the first right, the Urrecht. And the struggle for the first right obliges us to make an effective defence of those who cross borders in search of them, in order to achieve recognition of them. An elementary recognition that is the first legal protection: the ancient institution of asylum as an institutional form of hospitality, as Arendt and Brecht insisted with differing emphasis. If the coercive power of law that is exercised on the borders does not respect those limits, it ceases to be an exercise of the legitimate monopoly on force and it becomes violence. We shall soon return to this point, probably the clearest evidence of the illegitimate drift of European policies of migration and asylum. However, beyond what is directly visible, the “violence on the borders”, there is another issue, that of the “violence of the borders”, in other words, the question of whether borders are a form of harm, and therefore violence. Furthermore, are they structural violence? I must repeat that for many human beings borders now represent a serious risk of death or of considerable harm to their physical well-being. For many they are a restriction of freedom of circulation that seems discriminatory and unacceptable. Should we abolish them because they are harmful? Or are they just another one of the rules that make freedom possible, albeit at the price of limiting freedom? I am speaking of “violence of the borders” insofar as the legality that now makes and defines borders is a breach of law and rights. Because, in the case of the EU now, and above all (as Naïr has explained) as a consequence of the process of renationalisation of the policies of migration and asylum, borders are an “instru
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