Beyond and through Law: For an Istituting Self-reflexive Critique of Violence. A Reflection from the Italian Edition of «Recht Und Gewalt» by Christoph Menke

Abstract

In this paper, starting from the thematization of the paradoxically inseparable, genealogical relationship between law and violence, I aim to articulate, from the perspective of an institutional juridical-political ontology, an instituting self-reflexive critique of violence. In the first section, I will concentrate on the Benjaminian thesis of the faithful character of the violence of law as taken up by Christoph Menke in Law and Violence. After having established, in the second section, some methodological coordinates useful to define the approach of legal-political ontology, in the third section, I analyze the transition from “authoritarian law” to “autonomous law” (Menke, 2018, p. 33), namely the tragic experience of law. In section four and five, I will address some specific philosophical proposals that have attempted, albeit from very different angles and historical contexts and with very different semantics, a philosophical “relief” of the violence of law. The first critique I will consider is the one that Simone Weil addresses to the concept of the person, i.e., to the subject bearer of law. In the transition to the Weilian impersonal, a destituting paradigm (Esposito, 2021) of legal-political ontology begins to take shape. From my point of view, this paradigm finds its most radical interpreter in Giorgio Agamben. The destituting paradigm, although allows one to think in a radical manner about “the beyond” of law, it runs the risk of resulting in a form of political nihilism. In a second moment, moving from the two different readings of Kafka’s Before the Law proposed by Giorgio Agamben and Jacques Derrida, and thanks to a more general evaluation of their philosophies, I try to bring out the philosophical necessity of a critique of violence that does not remain entangled in the radical but sterile attempt to definitively overcome law in the name of a justice beyond, that can never be fully realized, but that is based on a self-reflection of law which, by going to the political genesis of its procedures, deconstructs the faithful violence that resides in itself, without claim- ing to eliminate it completely. Beyond and through law: it is to the rhythm of this formu- lation that an instituting legal-political ontology proposes to criticize the violence of law.

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