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of lawmaking and violence. In a passage quoted by Menke, Benjamin clarifies the twofold function of violence in lawmaking: on the one hand “lawmaking pursues as its end, with violence as the means, what is to be established as law”;10 on the other hand, what gets so established is “not an end unalloyed by violence, but one necessarily and intimately bound to it, under the title of power.” Thus, Benjamin concludes, “lawmaking is power making, and, to that extent, an immediate manifestation of violence.”11 This is the mythical constitution of power under the guise of
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.
167 6 Postmodern legal theory as critical theory Andreas Fischer-Lescano (Translated by Gerrit Jackson) Understanding the relationship between law and violence is one of the most urgent challenges a postmodern critical legal theory faces today. In his essay, Christoph Menke explores the thesis that violence is to be thought of not as an external quality of law but as an essential part of its constitution. While his concise analysis reveals the fundamental conflict between the autonomy and the social responsiveness of law, I will suggest that we must radicalize
, to others, and to the world, in the guise of judgments. And he also describes it as a non-tautological sphere that is essentially oriented towards an outside, given that this outside, this sphere beyond the sphere of the law, comes into existence with the constitution of the juridical sphere itself. The two descriptions are associated with one another in important ways because the autonomous subject of the law cannot avoid relating to the non-autonomous subject that resists the law and remains outside of it. 198 198 Responses In fact, in his description of
the law simply because they recognize it as reasonable. 101 Law without violence 101 This is what Benjamin has in mind when he refers to diplomacy as an instance of nonviolent conflict resolution.12 For Kant, the condition for such an international order to be effective is that all member states have a republican constitution: only a just internal order disposes states to follow international law even when they are not forced to do so. If we replace “republican” with “radically democratic,” we arrive at a plausible description of the conditions necessary to
an end in itself –violence as the self-assertion of the law, namely, violence as “a relation of pure enforcement,” “violence through and through” (p. 22). At this point, the manifestation of the law as violence appears to be the same as the violence in a pre-legal, retributive, stage. The situation in the law, at least as it is enforced and hence understood in its first constitution (as universal and sovereign), is similar to the repetition in the case of retributive justice: “Law, too,” Menke writes, “must perpetually repeat its own violent enforcement” (p. 22
introduce a notion of law that seeks to find a coherent way of conceptualizing law’s opposition to violence and its own exercise of violence. At the second level, I examine the process in which the conflict between the two characteristics unfolds. This process is likewise that of a critical reflection on law as a process in law: the process of its self-criticism. The second level, therefore, examines the possibility of a different law, namely the question of how law might reflect on its aporetic constitution and thereby change itself. The difficulties that emerge at
whole), into a part [partie] of a larger whole from which this individual receives, in a sense, his life and his being; to alter man’s constitution in order to strengthen it; to substitute a partial [partielle] and moral existence for the physical and independent existence we have all received from nature. In a word, he must deny man his own forces in order to give him forces that are alien to him and that he cannot make use of without the help of others” (J.- J. Rousseau, On the Social Contract, book II, chapter 7: “On the Legislator,” trans. D. A. Cress
Zurich and London Agreements of February 1959 between Britain, Greece and Turkey created the independent ‘Republic of Cyprus’ in 1960. The 1960 constitution provided for strict power-sharing between the Greek and Turkish Cypriot communities. The latter, constituting roughly one-fifth of the total population, was granted veto powers over all major legislation, and entitled to a share in governmental
processes of their social constitution and secures their (re)production. The constitution of national (in)security as a problem is the result of social processes. Security questions, as Jef Huysmans points out (2002: 42), ‘result from a work of mobilization in which practices work upon each other and thus create an effect that we call a security problem’. A security issue emerges as the product of a