Menke’s reconstruction of Benjamin’s law,his tragic aporia and recognition

I Benjamin: The law as an extension of the non-violent phase of violence

The famous quotation from Clausewitz (1995) states that war is an extension of what is understood as politics in peacetime but only through different means. There is a similar ‘tradition’ in philosophy regarding the law and violence; it underlies theories from Benjamin to Menke and addresses the paradoxical relationship between the law and violence. While the former is different from violence as such, its existence implies the application of violence through other means. This idea can be found in the creation of the legal order as a way of overcoming the violence resulting from the unbridled freedom of the natural state. But, at the same time, it enables the possible use of violence transformed into non-violent force; this would be the way to overcome a permanent state of war. This so-called ‘legitimate force’ is the law’s main characteristic, also helping to maintain and reproduce it (Menke, 2006). ¹

As Menke reminds us, this can be understood by looking at rulings handed down by the courts and their consequences: loss of property, restrictions on freedom, parents being separated from their children and, depending on the prevailing legislation, even the death penalty itself (Menke, 2009).

This paradoxical ² thin line that would separate the law from violence in the Benjaminian interpretation of Menke takes the form of a proposal where the criterion to differentiate one from the other is based on equality in the case of law while pure violence always works in an arbitrary way. ³ This would help to create a ‘difference according to criteria’. In general terms, the idea of equality translates into the notion that we call ‘rights’ while action taken by applying only one person’s will or that of a few people is called ‘arbitrary force’. The paradox here lies in the fact that this ‘arbitrary force of violence’ can be found in the very creation of the law itself (Menke, 2010; Benjamin, 1996).

While Benjamin would state that, every time a law is passed, it constitutes a tragic instant whose violent destiny is determined by its own origin, ⁴ Menke would have us think about justice and how it is reflected in the law as a means of seeking vengeance.

The latter would seek a measure of equality, a just balance between the nature of the offence and the severity of the sentence; on the other hand, the law would strive to apply a rule impartially to mete out the proper punishment for an offence that has been committed.

From his perspective, Benjamin argues that the law exists purely because it can use violence legitimately and this is determined by its capacity to penalize offences. ⁵ It is this capacity that enables the law to impose and maintain order in society. However, this would be wholly insufficient if it were not linked to a search for justice. In this case, violence itself would create and preserve the law; we would have violence as the very foundation of the law, whether as a means or an end, and the law itself maintained thanks to its impartial application. ⁶ But what then would the essential difference be between this kind of violence (‘legitimate violence’) and the illegitimate one (‘violent violence’)? The answer is this: the latter would be simply an arbitrary act.

For Benjamin, this distinction does not erase the fact that the law, upon being constituted [rechtsetzend ⁷ ], will always have a moment of destiny and one of violence in its very creation. ⁸ It is thus that the law takes on an almost mythical force; ⁹ merely ponder Benjamin’s example of the Niobe myth which would reflect mythical violence as pure arbitrariness and, in that sense, the manifestation of a divine way of being.

From this ‘divine’ perspective, arbitrariness takes the form of ‘justice’, given the nature of those who decide. The difference between human judgement and the divine sort is that the former must bow before the incomprehensible nature of the latter.

However, as the law (rechtserhaltend) endures, what can be observed is an institutional violence which guarantees that the law will be maintained. In order to be legally binding, the law must necessarily resort to coercion. For Benjamin, this link would be a forced one and this is why the defining moment would be the constitution of the law itself as such.

From Benjamin’s viewpoint, the law in and of itself – and in an aporetic way – would strive to disguise violence, which is inherent in the law, and, at the same time, it would go beyond or transcend simple violence (illegitimate violence). Violence would be present in the origin, application and reproduction of the law. ¹⁰

Thus, and without saying it outright, Benjamin urges us to rethink three Hobbesian assumptions of modernity. (1) The state emerges as a way to overcome the violence that exists in the natural order of things and, therefore, its legitimacy hinges on its capacity to guarantee social security. (2) The law is a sovereign’s guarantee to ensure peace and this peace implies a state of non-violence. (3) The law is non-violent coercion and the modern sovereign, by using the civil law, can determine what is fair; or to put it another way, justice would be nothing more than the implementation of a law that reflects the will of the sovereign.

II Menke: Justice’s paradox and violence as a reproduction of law

Menke’s reconstruction of Benjamin’s argument analyses the relationship between law and violence from a ‘three-pronged’ perspective which includes justice itself. The latter becomes the source which bestows legitimacy upon a legal action, whether it be justice as a means to a legal end or as a procedure which guarantees a deliberation based on rules that are abstract and neutral. Thus, in law, justice is the core point which bestows legitimacy while legitimate revenge is based on the sentence being proportionate to the offence committed. The strength of revealing an aporia and a paradox does not lie in its eye-opening effect nor in the insuperable tragedy of a state of affairs which we strive to overcome and to which we necessarily revert but, rather, in our natural social constitution. Law is yet another demonstration of the de-ontologization of social issues.

Menke would argue that, in Benjamin’s work, his interpretation of the law implies understanding its way as being structurally aporetic. From his point of view, Benjamin’s work could be taken as being akin to a Greek tragedy. The most appropriate approach to the Benjaminian thesis of law would be from the perspective of the Greek tragedies themselves like Sophocles’ Oedipus Rex and Aeschylus’ Oresteia. This is why Menke contrasts Benjamin’s work to these tragedies. ¹¹

According to Menke, mythological narrative talks of a destiny that befalls its victims without involving any sense of justice or lack of fairness but rather as an expression of supernatural forces and the proportionality between the action and its offence. The offender’s intention will not matter at all: all that counts is what was done and the punishment to be meted out. Menke applies Benjamin’s arguments but, at the same time, analyses them from a distance. He uses Sophocles’ tragedy to explain how Oedipus – by living out his tragic fate – attempts to break the curse of mythical culture and its sheer arbitrariness as represented in acts of vengeance and sacrifice. ¹² By an absolute paradox, behind this lies the very same intent to establish an impartial rule, different from that of arbitrary destiny and mythical praxis, which will enable destiny to be played out.

In Menke’s interpretation of Oedipus’ tragedy, the oracle takes on the role of judge: this figure casts off its sacred and ritual shape decreed by tradition and assumes a legal, impartial and profane one. ¹³ The oracle, in Menke’s words, takes the form of that third-person observer which, in an impartial way, demolishes unilateralism. This is why, contrary to revenge, ¹⁴ the law will always take more than one of the parties into consideration. On the other hand, the same application of the law in Oedipus shows us its tragic nature. Upon being applied, any impartial norm acts as a great ‘leveler’ to determine the offence, thus effectively ignoring any aspect particular to any one case. ¹⁵ It is an unavoidable consequence of having replaced the mythical way to judge with the legal way to judge. This very same change sentences Oedipus to his tragic end.

Menke’s embrace of the tragedies and his confrontation with Benjamin allow us to elaborate certain interpretations. First, we can observe how deeply these tragedies understood the social practices which developed in those societies where the sense of the tragic was a fundamental element. Second, we can verify (and thus refute the romantic idea expressed by Hegel about his death) that tragedy has coexisted with modernity, even in what was always supposed to be far removed from tragedy, that is, the law, the constitution of subjects and the state as an institution. In all these, tragedy endures.

Following Benjamin’s line of reasoning, Menke points out that the function of the law is its own reproduction over time. Thus, the enforcement that accompanies the law is the very condition it needs in order to maintain itself. It implies a moment of insight which later becomes a moment of application where the coercion used must necessarily protect its own interests since the conservation of the law happens to be its ultimate end and, in that sense, the very existence of the legal system implies and subsumes its own idea of what justice is.

In his rereading of Benjamin, Menke lingers on the issue of subjective rights, interpreting them as negative rights, which – in his view – will invert the order in the relationship between the law and the individual; it is no longer the law that regulates the individual’s behavior by imposing norms but, rather, the individual is the subject of guarantees in the form of rights so that his or her arbitrariness (will) may remain unrestrained by rules. It is this inversion that enables the emergence of subjectivity which, in turn, enables the emergence of the individual.

For Menke, despite the liberating quality invisibly imbedded in these subjective rights, they also possess a capacity to mask conditions of dominance. ¹⁶

The law would not be able to eliminate the domination of everyday praxis, at least not totally. In spite of this, it produces a new paradox: that, while subjective rights maintain an ideological dimension, for Menke ¹⁷ they would be the only possible way to overcome mythical violence by using divine violence. The latter would be precisely the kingdom of subjective rights which would take on a predominant importance vis-à-vis the law, enabling the fusion between life and law, as one and the same. Upon inverting the way norms are justified – from the ‘divine’ to the ‘profane’ – divine violence paves the way for the emergence of subjective rights. Such rights would empower the subject as their holder and the aim of the law would no longer be its own reproduction but rather the protection of those rights. The law would be suspended because of the said rights. The law would then be subject to the partial arbitrariness of individuals. ¹⁸

Menke argues that modern law supposes that people are equals. Law would be generated impartially as a source of authority to guarantee the equal application of the law for all. The recognition of equal, subjective rights for all was non-existent in the tragic world. ¹⁹ Only in this way could the law be considered as fair in its application of violence. Equal subjective rights for all could be read as equal legal force over all.

But this necessary equality for the legitimation of the law does not do away with the paradox of the necessary inequality between individuals. The legal homogenization of the ‘natural person’ would violate the inequality found in individuality. The need to differentiate between the law and violence embraces a double aporia: the radical difference between law and violence, but the inability to go absolutely without violence, and the criterion of equality as a condition for impartiality, which would create tension between the person (as a legal subject) and individuality.

To sum up: while, in arbitrariness, the fundamental difference lies in the arbitrary will, in justice it is the need to subject a given case to an abstract standard which dismisses any particularity to begin with and then, from the standpoint of equality in abstract terms, return to the particularity of each case and thus establish the differences needed to ensure that the greatest number of cases have actual – no longer theoretical – access to the established principle of equality.

Is the law, as Benjamin assumed, a form of ‘non-violent violence’? If, as Menke proposed, the law can escape from its violent character, but not from its force, only when it is invoked for individuals based on equal subjective rights for all and not for its ongoing existence, is there any normative sphere free from the possible use of violence or force?

If the law always involved – even in a paradoxical way – a certain link to violence, any set of norms free from violence could not then be based on the law. That normativity would be linked to social grammar and no longer to institutions. It is this normativity upon which recognition is built. ²⁰

III Recognition as non-violent normativity

What form would that recognition take?

Modern rhetoric has been basically equalitarian. In a world where equalitarian normativity determines the argumentative possibility of a speech, this is where concepts are transformed.

It is precisely this modern search for equality that will determine the semantic evolution of concepts such as First Nation peoples, gender, ‘gay’, or immigrant.

In the last decades, political equality – transformed into systemic normativity as a sign of modernity – has generated a systemic pressure of expectations resulting in a conceptual redefinition of what was deeply rooted in certain areas of social communication from the standpoint of pre-modern or early-modern arbitrariness. In that sense, modern equality is the concept par excellence profusely found in today’s social systems.

Now, modern equality implies a difference, only from this equality can someone establish equalitarian social relationships. It is because of this that equality acquires the social form of contingency. ²¹

The latter – with regard to the difference of equality – implies that one cannot possibly hope to need a certain lifestyle and, at the same time, negates the impossibility of other lifestyles; equality implies that any kind of social artifacts ²² can have access to the social world. The idea of meaning becomes fragmented and this is reflected in a larger rupture or, to put it differently, in a cultural polycontextualism. This phenomenon explains why marginalized realities burst onto the scene with so much force nowadays, seeking a redefinition with modern equality as a starting point.

The horizon of expectations of those who have been marginalized implies a new treatment of their grammar that reflects the principle of equality despite differences in order to gain access to a basic right such as recognition. This concept – recognition – implies the existence of a social grammar that allows for the development of esteem, love and self-confidence. One effect of social discrimination is the diminution of those three aspects. People’s rights would be guaranteed by law when it came to the application of non-violent force and its neutrality at the moment of judging whether its application is fair or not; but it is in the sphere of recognition’s social grammar where the inclusion and constitution of subjects as beings with social rights take place.

The concept of recognition implies that all human beings are worthy of dignity as beings that can act rationally from their own identities as individuals and as members of communities. This implies a first aspect of universalism of rights. From this comes the assumption that all human beings are different, which is a part of our constitution as free subjects.

Recognition would be a prerequisite to compete for what authors like Pettit and Adam Smith himself consider as a primary good, the social esteem. ²³ Thus, according to both authors, esteem would constitute a primary good ²⁴ whereby people, as semantic artifacts, compete and establish mechanisms of distribution of this esteem. ²⁵ Therefore, the possession or not of this good implies a greater degree of social inclusion or exclusion from a communicational perspective, and to have access to compete in equal conditions for it would be a fundamental right.

This is how law – at the very most – could guarantee political rights and economical non-discrimination, reinforcing certain aspects of social inclusion. However, it would never suffice to guarantee the latter; that would happen only by implementing a policy designed to reformulate grammatically the semantics for that which has been excluded.

For Menke, differentiation established in the law is related – in a twofold sense – to social grammar and the differentiation established by this grammar: that is, that the social grammar can vary from legality and can also can influence it, by making the legal system stabilize recognition expectations. Inversely, it may be that social grammar is influenced by the legislation itself if it incorporates global or paradigmatic social changes that spring forth outside a certain society at a given moment. Finally, social grammar can act as a catalyst for legal changes.

According to Honneth (2005), the structure of recognition is measured by three elements: self, non-self and their corresponding development in the psyche as identity. Thus, the first component, love: this is the encouragement of and approval by others, allowing us to develop self-confidence in the manner of a corporeal and emotional sense of security. The second element is the building of respect, that is, being treated as a valuable subject in a Kantian sense – an end in itself without a price – and thus generating the third element, esteem or dignity. This results in the psychic system’s self-confidence. Love, respect and esteem generated through social interaction lead to self-reliance, self-respect and self-esteem (ibid.).

Respect is an element which determines the social interaction by which the subject is seen as a semantic, legal artifact on the same par as her or his peers. As Mead basically said, respect is generalizing the other as the other-me (ibid.). Finally, recognition would also involve placing value on social groups or their distinctive forms in the social sphere, which would constitute the esteem factor within recognition.

This is how love, respect and esteem generated in social interaction through communications would give way to self-confidence, self-respect and self-esteem in psychic systems.

Seen from this perspective, the social grammar of recognition would provide the only absolutely non-violent social sphere or, put in another way, the non-existence of social recognition would generate an exponential increase in violence because rights based on accepting differences could be safeguarded – in the case of social grammar’s being excluded – only by the law which is the paradox of the extension of the non-violent violence. When there is no other recourse in society but to fight by applying only the force of the law – whether it be a case of arbitrary violence between groups and people or the grammatical violence of discrimination – then we are facing a spiral of violence. The law would guarantee equality before itself (non-arbitrariness) and the application of force against those who do not recognize and violate stabilized expectations guaranteed by legal texts. The most relevant aspect of inclusion is that it does not require any kind of violence or force, but only the acceptance by others of an Alter as a legitimate member of the political community and social life.

Thus, we can speak of true inclusion only when it relies not on the force of the law, but rather on the acceptance and esteem that recognition produces.

IV Concluding remarks

Menke’s effort is more than a reconstruction of Benjamin's work. It could be considered as part of a wider project to understand the phenomenon of law and justice in relation to a polycontextual modern world as Luhmann described it or as Lyotard has done in his postmodern essays.

Regarding the overcoming of modernism or postmodernism, Jean-François Lyotard defined the postmodern condition as the end of the meta-narratives that had been part of modernism. In his view, the possibility of universal truth and monolithic methodology has come to an end. Instead, postmodernism practises a pluralistic methodology. Lyotard’s ‘report of knowledge’ (Amariglio et al., 2001) noticed the disappearance of the meta-narratives that had given structure to our Weltanschauung [vision of the world] since the Enlightenment. Both the Enlightenment and modernism were spread together. For example, for Lyotard, Marxism and liberalism were two of modernism’s main ideologies aimed at changing society, culture and the economy through human progress in part by harnessing technology and the sciences to achieve a better world. Lyotard argues that these meta-narratives reduced the autonomy of the political and legal system, and perceives them as serving certain goals. By contrast, a characteristic of postmodernism is the pluralism of options with all kinds of actors playing different roles. Modernism is characterized by sameness under rules of reason. For Lyotard, modernism is the place of the meta-narrative and postmodernism the evidence of its death.

The Frankfurt School has a similar criticism (especially Adorno): both the Enlightenment and modernity have taken the form of totalitarian ideologies that, with the help of technology, have tried to invade all aspects of human life. Lyotard and Adorno claim that this pretension of modernity is but an illusion. By contrast, postmodernism – in the words of Lyotard – implies the loss of meta-narratives, where there is no longer a place for universal truth and monolithic methodologies. Postmodernists instead practise pluralist methods. Lyotard’s view is, metaphorically, ‘let a thousand flowers bloom’.

In that sense, Menke’s theory about law implies a higher level of aporia within the law’s system from the moment that justice is not extrinsic to the system and, in its application, cannot escape force as legitimate violence.

In the same way, Menke in line with Luhmann (1992, 1997) distinguishes between the Enlightenment as an ideological project that assumes a predetermined idea of modernity and the Lyotardian notion of modernity as a social phenomenon characterized by a highly differentiated society where the selection and maintenance of differences for each system is an end in itself – but a recursive rather than teleological end. He embraces the idea defended by Schneewind (2009) of the invention of autonomy as a characteristic of modernity, extending it from people to systems (Luhmann, 1995: 200). Luhmann identifies independence from the environment as a condition for maintaining social systems, looking for the non-systemic domination and independence of external bondage to the system; communication itself is what characterizes each system’s autopoiesis (Luhmann, 1965). It is important to note that Luhmann’s concept of differentiation does not imply any pluralistic value; it is rather a description of a factor of evolution. Modern society is polycentric, resulting in politics and culture assuming the form of pluralism and democracy.

Luhmann’s ideological construction of the modern world is polycentric, highly differentiated by systems, and in evolution. His interpretation of modernity thus aligns with the idea of postmodernists such as Lyotard and Derrida.

Menke assumes a postmodern polycentrism where any effort to reduce human reality to a single explanatory model is condemned to fail. His embrace of the Greek tragedies is part of a methodological effort to take into account the diversity of social reality, as Luhmann did with constructivist knowledge and Derrida with deconstructivism where the main difference between the ‘modern’ and ‘postmodern’ ideas of law is that, once more, there is a consciousness that tragedy is still with us as Benjamin too never forgot.