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– Jacques Derrida was organising grammatological exercises and Niklas Luhmann kept reducing complexity – Rudolf Wiethölter already had that disquieting phenomenon, the paradox of law, in his sights. 2 When in 1977 he wrote a punctatio in the Festschrift for his academic teacher Gerhard Kegel, consisting of a list of points for and against Kegel's concept of conflict of laws, it was still a nagging
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.
and paradoxes which not only destroy their legitimacy, but also paralyse each operation and calculation through their self-contradictory structures. Their approach to the founding paradox of law reveals how, despite far-reaching agreement between their respective analyses, their initial consensus suddenly turns into complete incompatibility between their lines of thinking. Both commence with a critique
produces normative impulses for a different understanding of justice in contemporary legal theory and practice. The re-entry of sociological theory into legal practice could create an imaginary space for the normativity of justice today, a space which is located beyond natural law and positivism. 7 Here, the problematic hiatus between legal norms and legal decisions and the decisional paradoxes of law it
the manifestation of law but also of its essence” (p. 21). Menke’s analytically precise distinction draws our attention to the fundamental paradoxes of law, the process of juridical decision-making in undecidable matters, and the ambivalent situation in which law is operating: justice cannot be rendered quasi-automatically, by way of a mathematical subsumption under legitimately instituted norms, but is generated in the struggle for law as the state of a just order that remains unattainable –that it is never more than justice “to come.” Menke’s critique “counters
” thus also fails to see how law in this process, hence in its ordinary practice, already deals with its own abstractness and formalism. According to objection (ii), the insistence on the paradox of law leads to a postmodern, anti-utopian attitude of closing off any perspective of transcending the actual conditions of power and domination. Finally, objection (iii) questions the suitability of the central operational term that I propose in “Law and Violence” for conceptualizing the transformative process of the relief (or Entsetzung) of law, namely self
the legislative authorities at work in international politics is thus increasingly restricted to merely reformulating the law created within society. 3 Protest movements This, then, explains why protest movements are changing their addressees, as described above. Protest movements react to the change in the way the paradoxes of law are externalised. They no longer address
implements the program of delimiting law by distinguishing and contrasting these two sides. Yet this liberal “art of separation” (Michael Walzer) leaves what it separates unaltered. That is in fact what the liberal “art of separation” intends: to avoid or fend off fundamental change. The liberal “art of separating” the legal from the non-legal believes that it can break the violence of law merely by limiting its reach –which is to say, without having to change how the law judges. 5. After liberalism: The paradox of law The dualism of bourgeois liberalism consists in