Towards a re-thinking of legal justice in transitional justice contexts
María del Rosario Acosta López
The violence of the law, its unavoidability and its foundational character, becomes one of the main features pointed out by a philosophical critical engagement with the sphere of right. The expression "transitional justice" points, not only to the transitional form that legal justice attains in such a context, but also to the fact that justice itself is also in transition, and with it the sphere of law, as its requirement and justification. Transitional justice processes bring to light more than ever the incapacity of the law to provide retribution for the quality and sometimes the sheer quantity of the harms that are to be addressed by the legal process. Christoph Menke sees in law's self-reflective capacity the potentiality of the law to judge differently while being sustained by the very same operation that makes its violence unavoidable.
Christoph Menke links the dimension of publicness of the justice-of-the-law paradigm with an intrinsically political quality of the law, which is counterintuitive and requires a supplementary argumentation. In his famous essay "Critique of Violence," dated 1921, Walter Benjamin distinguishes two kinds of criticism that can be leveled against the persisting enmeshment of law with violence. It could be conceived of as a form of law that, drawing on the idea of "democratic dualism," pioneered by Ackerman and integrated within political liberalism by Rawls, renounces the demand for the direct consent of all the governed and settles for an indirect consent. The indirect consent hinges on the law's compatibility or is in accordance with the constitution. At each of three critical junctures on its way to overcoming the mythical relation of law to violence, Menke's argument, it seems to the author, intersects the path of contemporary "political liberalism".
This book focuses on the paradoxical character of law and specifically concerns the structural violence of law as the political imposition of normative order onto a "lawless" condition. The paradox of law which grounds and motivates Christoph Menke's intervention is that law is both the opposite of violence and, at the same time, a form of violence. The book develops its engagement with the paradox of law in two stages. The first shows why, and in what precise sense, the law is irreducibly characterized by structural violence. The second explores the possibility of law becoming self-reflectively aware of its own violence and, hence, of the form of a self-critique of law in view of its own violence. The Book's philosophical claims are developed through analyses of works of drama: two classical tragedies in the first part and two modern dramas in the second part. It attempts to illuminate the paradoxical nature of law by way of a philosophical interpretation of literature. There are at least two normative orders within the European ethical horizon that should be called "legal orders" even though they forego the use of coercion and are thus potentially nonviolent. These are international law and Jewish law. Understanding the relationship between law and violence is one of the most urgent challenges a postmodern critical legal theory faces today. Self-reflection, the philosophical concept that plays a key role in the essay, stands opposed to all forms of spontaneity.
The use of violence in law, the argument for its legitimacy says, constitutes an "unsurpassable limiting case"; it is at the disposal of law, whose internal organization is "symbolic" or normative, as a "symbiotic mechanism" that operates by action upon "physical-organic existence." The law to be discussed here is the law of tragedy; not just any sort of order guaranteed by a power that establishes a minimum of reliability of expectations, but the specific form of law engendered by the tragic labor of reflection. Oedipus issues the legal curse of autonomy only as a proxy, in his role as judge. Walter Benjamin offers an alternative to consent or rejection, instauration or destruction, an alternative he calls "relief of law". The dualism of bourgeois liberalism consists in confronting autonomous participation in the law and the right of free non-participation as mutually external registers.
Ian McEwan’s The Children Act and the limits of the legal practices in Menke’s ‘Law and violence’
Ian McEwan's novel centers on a British High Court Judge, Mrs Justice Fiona Maye, who works within the Family Division. For Christoph Menke, the law constitutes subjects in their very autonomy, and thereby hollows out their autonomy from the inside, for the subject becomes a subject by judging and imposing violence on themselves. In McEwan's novel, the law functions alongside other social practices, and different practices demand different but related forms of integrity. McEwan's novel centers on a British High Court Judge, Mrs Justice Fiona Maye, who works within the Family Division. In an article on Marx's critique of the law published two years after the German edition of Law and Violence, he continues the project of probing the limits of legality. Benjamin notes areas of social life that do not depend on violence to resolve conflicts.
According to Christoph Menke, there never was and never can be any law without violence. The reason for this dependency of law on violence lies in its need to be enforced; Menke follows Immanuel Kant's definition according to which law consists in a reciprocal authority to use coercion. Immanuel Kant's definition has been extremely influential, not only in legal and political philosophy, but also in public discourse and in our everyday understanding of law and legal matters. Over centuries, Jewish legal traditions have not only theoretically reflected, but also reliably practiced, a law without any recourse to state-sanctioned violence. Interestingly though, due to the conditions of the Diaspora, Jewish law cannot have recourse to any governmental apparatus of power by way of an enforcement agency. By introducing an argument concerning the strategy of social transformation, Menke leaves the terrain of legal philosophy in favor of a philosophy of history.
The third generation of critical theorists affiliated with the Frankfurt School has now established legal theory as a central field of research, also with significant contributions from scholars whose primary training is in other fields. Postmodern legal theory will have to face up to the challenges of legal practice and broaden its reflections to take into account forms of lawmaking beyond the political community conceived in unitary terms. Only by integrating this possibility of transcendence will postmodern legal theory be able to carry forward the tradition of the first generation of critical theory with regard also to its demand for the realization of the ideal of emancipation and justice. The proletarian general strike, by contrast, is an expression of sovereign violence and, as such, breaks the cycle of violence, of calculation and counter-calculation, of success, concession, compromise, struggle, and so on.
Law begins with the experience of violence. Law exists because there is violence, and because recognizing the existence of violence appears to be tantamount to saying that violence should not exist. Law translates the violence that one inflicts upon another into the violation of a law. Walter Benjamin calls the transformation of law in the face of the experience of its violence its Entsetzung. For taking the violence of law seriously, that is, taking the Nietzschean demand which all experience of violence raises seriously, namely the demand to go, "Away, you pain!", must mean to go beyond law. For the "impulse" or "force" at the ground of law is justice: the resistance to violence. "Law and Violence" tries to show this by reference to the experience of law in tragedy, especially the Oresteia, and its philosophical reflection in Benjamin's "Critique of Violence."
Self-reflection amounts to the attainment of an awareness that deepens the understanding of whatever it is that undergoes the process, the understanding that someone has of herself or himself, or the understanding that something has of itself. In Christoph Menke, self-reflection as an act of the law, as an act of the law's enlightening manifestation, has to do with unwillingness, with a peculiar reluctance to apply the law, with a repugnance inspired by such application, or execution. Self-reflection is the logical and genetic criterion that allows Menke to distinguish between two forms of justice: retributive justice and the justice of the law and its normative order. The place of self-reflection, the place that in Menke's essay is occupied by the law and configured by its instauration, is the place of a transformation of self-reflection that must protect it against turning into a tautological activity or activity with a result.