The Age of Human Rights Journal, 2 (June 2014) pp. 46-50  ISSN: 2340-9592 

46 
 

 

 

 

BORDERS, VIOLENCE, LAW 
 

 

 

JAVIER DE LUCAS
1
 

 

 

 
Abstract: This article explores the relationship between violence, law and borders by analyzing both 
the violence at the borders and the violence of the borders. In both cases, the author states that violence 

exerted by means of law, as well as migratory and asylum policies, threaten the universal human rights of 

the most vulnerable people and cannot be seen as exercising the legitimate monopoly of force, resulting 

in the destruction of the Rule of Law. 

 

Keywords: Borders, Violence, Immigration, Asylum, Rule of Law, Human Rights. 
 

 

 

The relationship between the notion of Borders and Law is a classic, a basic 

argument of the Philosophy of Law and political Science. However, there is another 

relationship which remains unexplored, that which exists between Violence, Law and 

Borders: Violence at the borders, Violence of the borders. How does Law handle this? 

What role does it play before these both forms of violence? 

 

1. Let’s begin with the most obvious violence, the violence at the borders. The 

impact of the acts of violence in the border (for instance, Lampedusa, Melilla, Ceuta) is 

undeniable: this is always the case when there is harm, when there is suffering. Since 

violence means, above all, harm, to the extent in which violence seeks to impose or 

obtain something by the means of force
2
. Still, unjustified or disproportionate harm is 

the evil that Law cannot and must not accept. This idea is further reinforced if we accept 

the thesis sustained by certain Law philosophers (such as Ballesteros), who maintain 

that the core of the usefulness of Law lays in its very condition of a barrier against 

                                                 
1

 Professor of Philosophy of Law, Institut de Drets Humans, Universitat de València, Spain 

(lucasfra@uv.es). 
2
 We must recall that the academic definition of violence refers to its origin, its Latin etymology: 

violentĭa, comes from violo. <Violence is the quality of violent or the action and effect of violare. 

Violent, on the other hand, is that which is outside of its natural state, situation or mode; which is 

executed with force, vigour or brusqueness; or which is done against the taste or will of oneself>. 

Violence, therefore, is a deliberate behaviour that can result in physical or psychological damage to a 

third party. Since Galtung, violence is differentiated into three categories, cultural, structural and direct 

violence. The most serious one, meaning the most dangerous one according to the Norwegian 

philosopher, is the second one, that which consists in the dissatisfaction of basic necessities as a 

consequence of the structure of the political-economical system. 



JAVIER DE LUCAS 

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violence and inequality: that is why Law would –ideally- be “non-discrimination and 

non-violence”.  

 

Moreover, the core of what it must forbid, according to the well-known 

reasoning of J.S.Mill in his book On liberty, is precisely the harm to a third person. 

Thus, the first reflection regarding  <violence on the borders> is that many of those acts 

seem to coincide with what we consider to be a crime, to the extent to which they reveal 

disproportionate use of force, disproportionate menaces to life, to physical integrity, to 

freedom. We are referring to harm in basic necessities, in primary legal assets, in 

universal human rights: considering such harms, we can state that the borders today 

often entails a risk of death, if not death itself.  

 

And still, is Law perhaps different from violence? Isn’t it a form of institutional 

violence in itself? Is this not precisely the sense of the weberian <monopoly of 

violence>, which entails the monopoly of Law as an instrument of coercion and 

sanction? Is not the link between Law, power and fear, the means of fear as an 

instinctive political link (at least as much as the gregarious instinct, the flock instinct, 

the will to be a servant), and retraceable to the principle primus in orbe deos facit 

timor
3
, a constant in political theory, from Greece up to present day

4
? Does not this 

conclusion require from us a realistic  examination, as the one put forward by Ross in 

his polemic with Kelsen regarding the distinctive note of Law, which would not regard 

its validity but rather its coercive efficiency?  How can we refute such a reasoning of 

Law as expressive violence, so evocatively portrayed by Eastwood in the dialogue of 

Unforgiven between the gunman/sheriff Little Bill Dagget (Gene Hackmann) and the 

gunman English Bob (Richard Harris), as the former delivers a terrible beating to the 

latter: 

 

- <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 

                                                 
3
 The idea that fear created the gods, is a common place of the retores, and therefore, can be found in 

several authors and in different forms. Often attributed to PETRONIO, extract 22 (Loeb Classical 

Library, Harvard University Press, vol.3, 661). However, others refer it to STACIO, Tebaida 3.661 or 

even to LUCRECIO, in the Canto V of his De natura rerum. Cfr. J-F Rieux, “Aux Sources de la 

croyance. Petite histoire d’une formule”. Also, Heuten, G., "Primus in orbe deos fecit timor", Latomus 1 

(1937), 3-8. I owe this preciseness to my colleague Mar Marcos, professor of Ancient History and 

religions at the Universidad de Cantabria. 
4
 A tradition which includes the names of EURIPIDES, TRASIMACO (República: justice is that which 

the strongest takes advantage of) CALICLES (Gorgias, Law, the natural law of the strongest), SAN 

AGUSTIN, HOBBES and WEBER, ROSS and PETRAZISKY: Law is force, inexorable  impositivity. 

 



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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.> 

 

In order to be able to justify this distinction, to distinguish the legitimate 

monopoly of the violence exerted by the one who has enough power to impose it, 

resourcing to the idea of justice is inevitable. Furthermore, so that this latter does not 

become a formal resource, malleable in the hands of the powerful, it is necessary to 

refer the use of power to the notion of human rights, to the historical conciousness of 

that idea of justice. Only the Law which is understood as fight for the Law, Kampf um 

Recht (Ihering) which in turn resolves in fight for the rights, Kampf um Rechten, can 

aim to be a different instrument than that of the resource to violence, in other words, as 

suggested by Ferrajoli, the Law understood as the law of the weakest.  Yet not in the 

prenietzschean sense taught by Calicles, as an ingenious, witty and resentful resource of 

the weak against the strong, the true natural master, but rather as the recognition of the 

other, as the struggle for the rights of the other and in particular a more vulnerable 

other
5
. 

 

In fact, the more vulnerable is the person who seeks asylum, the person who is 

deprived in his own country of the right to have rights, the very first right, the Urrecht. 

This struggle for the first right compels to fight for those who cross borders seeking it, 

in order to obtain their recognition, the first legal protection, which is the very early 

institution of asylum as an institutional form of hospitality
6
. If the coactive force that is 

inherent to the right exerted in the borders does not respect these limits, it ceases to be 

the exertion of the legitimate monopoly of the force and becomes violence. We will 

soon return to this matter, which is probably the most obvious proof of the illegitimate 

drift of European migration and asylum policies.   

 

 

2. Nevertheless, beyond what it is strictly visible, the <violence at the borders>, 

resides the question of <the violence of the borders>, in other words, the question: Are 

borders harmful and, thus, violence? Furthermore, are they structural violence? Borders 

nowadays imply, for many human beings, I insist, a serious risk of death or of serious 

damage to their physical integrity. They entail for many a restriction in their freedom of 

movement which appears as discriminatory and unacceptable. Should we abolish them 

because they are harmful? Or are they simply one of the many rules that enable 

freedom?  

 

                                                 
5
 I am referring to the Book of Luigi Ferrajoli, Derechos y garantías. La ley del más débil, Madrid, Trotta 

2005 (with an excellent foreword of Perfecto Andrés Ibáñez). I believe that is the sense of the claim 

defended in the theory of recognition put forward by Axel Honneth, especially in his Das Recht der 

Freiheit: Grundriss einer demokratischen Sittlichkeit, Suhrkamp, Berlin, 2011. 
6
 I devoted a book to the legal  foundations of this initial right, Puertas que se cierran. Europa como 

fortaleza, Icaria, Barcelona, 1996 in which I proposed a philosophical and legal reflection on the closing 

of European borders that foreshadowed the narrowing of this Urrecht that is asylum, based on the 

proposals of Arendt and Brecht.  



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I am referring to <violence of the borders> to the extent in which the legality 

that currently establishes and defines the borders plainly is breaking the Law, violating  

rights. Since, regarding the case of the EU at present day, as a consequence of the 

process of renationalisation of migration and asylum policies, the borders are a <war 

instrument against immigrants and refugees>, as it has been reported for some time now 

by the NGO Migreurop: a war in which the Law is the basic tool, which means the 

destruction of the Rule of Law and of the very thing that gives sense to Law itself, the 

fight for the rights.   

 

War is, in a sense, the denial of Law itself, and that is why I believe it is justified 

to say that the drift of the EU’s migratory and asylum policies entail the resurgence of a 

legal and political tradition that develops the negative of Law. Indeed, this “war against 

the immigrants and refugees” finds its alibi (I refuse to use the term justification) in that 

perversion of the logic of Law that is the principle of discrimination of the other, on 

which the legal architecture of his non-recognition is built upon, and which sums up in 

the denial of equality (the denial of the other in its recognition as a person), in the 

absence of a safety legal status. Moreover, such conception is further reinforced by its 

functionality from an economic point of view, this is, to feed the business of labour 

exploitation; which on one hand reveals all its cruel ambiguity at both ends of the 

<bubble economy>’s policy of self-overexploitation, casino capitalism and closure 

policies (all of which, in themselves, promote in a different way the clandestine 

exploitation networks) and on the other, it reveals the extreme condition of 

precariousness –the epitome of the condition of “disposable”, of its “liquidity”- 

attributed to immigrants.  

 

In a certain way, as it has been denounced, this use of immigrants highlights the 

link between the new form of slavery affecting immigrants (as workers) and the 

migratory policies (asylum policies as well). It is a well-known thesis. In the same way 

that we speak about institutional racism and xenophobia, the other side of the coin of 

racism and xenophobia, the migratory (and asylum) policies are the institutional 

framework that  promotes the new forms of slavery affecting immigrants (and refugees). 

These policies are part of a conception that shows how the migratory movements are 

structural pieces of a system, rather than spontaneous, wild and incomprehensible 

waves: invasions. On the contrary, migrations integrate in an economic global system, 

which we refer to as globalisation process, governed by the neo-fundamentalist logic of 

global market capitalism, which promotes inequality and exploitation under the pretence 

of mobility and market freedom. The denial of freedom (refusing to recognise the other 

as a person), results in the absence of a safety legal status and in the collapse of the 

principles of legality and equality under the law, of the guarantee of equal freedom and 

thus the reduction of these subjects (infra-subjects, or rather non-subjects) to mere 

property. In other words, this is what it is actually being instrumentally used by means 

of that Law of exception that is Migratory Law (more than it is Immigration Law), 

which, as warned by Danielle Lochak, opts for the “state of siege” instead of the Rule of 

Law, thus, turning into permanent what was in fact an exceptional, provisional and 

extra-ordinary situation as should be a “state of exception”. 

 



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Indeed, these infra-subjects are even deprived of their own condition of 

immigrants, of the right to be an immigrant, resulting in the right to free circulation (a 

complex right, as exposed by Professor Chueca), which links directly with the principle 

of autonomy and its corollary which is having the opportunity to choose our own life 

plan, and to be able to move accordingly. The construction of the legal figure of the 

immigrant as an infra-subject or non-subject  is obviously related as well to its 

utilisation as a problem-obstacle to the effects of the internal biased consumption. The 

immigrant as the scapegoat, as the external aggressor from whom citizens must be 

protected. In doing so, the system re-legitimises itself, even if it is according to the most 

antique model of legitimisation which is, as we have seen, the principle primus in orbe 

deos facit timor: fear. Therefore, I believe it can very well be denounced that these 

migratory and asylum policies are war policies, that they try to instigate fear, to make us 

afraid, to compel us to give up our freedom and rights, starting with the freedom to 

criticise, for the sake of the protection we are being offered instead.  

 

I find it hard for someone to deny that such model of <border policies> violates 

the logic of the Rule of Law itself, its principles and values, its rules: the primacy of the 

rights, of the legal assets and interests that are established as a priority because they 

serve basic needs.  When all the effort of the migratory policy is to conceptualize 

immigration in times of crisis as a menace to public order and even security, defence, it 

is understandable that it requires the institutionalisation of instruments of exception, 

such as internment camps, the use of armed forces or analogous measures (the 

FRONTEX system) and the criminalisation of immigrants and even refugees. 

 

Moreover, this borders’ policy imposes the logic of state territory, serving the 

notion of market and power, even more of sovereignty, which are already perished: 

borders violate the universalist logic of legal and political globalisation, which follows 

the path of legal cosmopolitism at least regarding the equal recognition of universal 

human rights and its guarantees. A path that reveals the oxymoron of a notion of state 

sovereignty, which still today aims to force itself upon commands of the Rule of Law, 

meaning of the submission to Law, starting with human rights. 

 

 To conclude, as we have seen, this borders’ policy we are referring to is 

violence that violates, harms those who are most vulnerable before the Law, those who 

are not citizens: the refugees, and in doing so it violates the most basic right, the right to 

have rights: the asylum. Therefore, as it is evidenced by the existence of the CIE and, 

most of all, the externalized camps, as it yet confirmed by the will to revoke the right to 

asylum exhibited by a large part of European governments, with Rajoy’s government at 

the head of it, the struggle for Law, for the rights, for the Rule of Law, at present day, is 

the fight against this utilization of borders as violence, a use that entails a perversion of 

Heraclitus’ proposal in their fragment 44 : “The people must fight for its laws as for its 

walls” (753 (22 B 44) D. L., IX 2).