“A state is a human community that [successfully] claims the monopoly of the legitimate use of physical force within a given territory.”
The above quote is often used as a normative statement to justify physical force. However, other than post-Rousseau legal theory on the social contract, Weber’s statement it is in fact an analytical utterance reflecting upon the status quo, not a goal to be achieved in practice.
Physical force can only be the ultimate means. Physical force is to be avoided in any normal setting, and to be enforced only under specific, legally proscribed conditions justified by the independent judiciary weighing the legal codes in place, primarily the published laws.
Laws are subject to proportionality, as interpreted by the judiciary and thus mirrored by the executive. Wherever a law is necessary, such law cannot be replaced by administrative decrees and their implementing regulations, for instance decrees on bilateral agreements.
Violence is subject to punishment as per the criminal law. Therefore, a citizen committing acts of violence can and should be prevented from committing such acts, for instance by means of deprivation of his or her freedom of movement. As to this and other forms of infringements, these must be subject to legal proof of the deed committed, and of conscious enactment, however means of prevention may in materially justified cases apply.
Finally, he or she among the executive who is not informed about the legal conditions, and, more importantly, he or she not in full possession of his or her mental capacity, cannot claim to use physical force legitimately.
Thorsten Koch, MA, PgDip
15 November 2020
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