The one and only law : Walter Benjamin and the second commandment

263 Pages·2014·1.63 MB·English

by  Benjamin

The One and Only Law
James R. Martel presents a radical critique of contemporary legal prac-
tices and understandings based on a new consideration of an apparent
paradox in Walter Benjamin’s “Critique of Violence,” widely considered
his final word on law. While Benjamin proposes that all manifestations
of law are false stand- ins for divine principles of truth and justice that
are no longer available to human beings, he also suggests that we must
have law and that we are held under a divine sanction that does not
allow us to escape from our responsibilities. Martel argues that this par-
adox is resolved when one considers that, for Benjamin, there is effec-
tively only one law that we must obey absolutely— the Second Com-
mandment against idolatry. Martel argues that, quite unlike our current
system based on consistency and precedent, the form of law that would
remain when its many false bases of authority are undermined would be
a form of legal and political anarchism, one that would still retain the
ability to enable and shape our polity.
Throughout the book, Martel engages with the thought of several
key authors including Alain Badiou, Immanuel Kant, and H. L. A. Hart
in order to revisit common contemporary assumptions about law and to
reveal how, when treated in constellation with these authors, Benjamin
offers a way for human beings to become responsible for their own law,
thereby avoiding the false appearance of a secular legal practice that
remains bound by occult theologies and fetishisms.
James R. Martel is Professor of Political Science at San Francisco State
University.

The One and Only law
Walter Benjamin and the
Second Commandment
James R. Martel
University of Michigan Press
Ann Arbor
Copyright © by the University of Michigan 2014
All rights reserved
This book may not be reproduced, in whole or in part, including illustrations, in any form
(beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and
except by reviewers for the public press), without written permission from the publisher.
Published in the United States of America by
The University of Michigan Press
Manufactured in the United States of America
c Printed on acid- free paper
2017 2016 2015 2014 4 3 2 1
A CIP catalog record for this book is available from the British Library.
Library of Congress Cataloging- in- Publication Data
Martel, James R., author.
The one and only law : Walter Benjamin and the second commandment / James R.
Martel.
pages cm.
Includes bibliographical references and index.
ISBN 978- 0- 472- 07230- 9 (hardcover : alk. paper) — ISBN 978- 0- 472- 05230- 1 (pbk. : alk.
paper) — ISBN 978- 0- 472- 12050- 5 (e- book)
1. Law— Philosophy. 2. Benjamin, Walter, 1892– 1940— Criticism and
interpretation. 3. Ten commandments— Images. I. Title.
K235.M3745 2014
340'.1— dc23
2014010712
Contents
Acknowledgments vii
Introduction: A Slight Adjustment 1
One The One and Only Law 22
TwO The Law of the Break with Law: Badiou and

Legal Ethics 49
Three Raving with Reason: Kant and the Moral Law 80
FOur A “Useful Illusion”: H. L. A. Hart and

Legal Positivism 116
Five The Haitian Revolution: One Law in Action 148
Conclusion: How Lawful Is One Law? 173
Notes 209
Bibliography 239
Index 245

Acknowledgments
I want to thank two editors, Robert Dreesen at Cambridge University Press
and Melody Herr at University of Michigan Press for their help in making
this book happen (and Melody for her help more generally with two books
now). I also want to thank Austin Sarat for bringing me to Amherst to give
a talk that became the basis for chapter 1 in this book, along with his col-
leagues, Tom Dumm, Martha Umphrey, Lawrence Douglas, Adam Sitze,
Andrew Poe, and many others who asked many difficult but vital questions.
Nasser Hussain is part of that group too, but my thanks to him are for all
kinds of reasons.
Peter Fitzpatrick set up a similar chance for me to present my work at
Birkbeck College, and so I thank him as well as many others in the Birk-
beck community: Elena Loizidou, Maria Aristodemou, Julia Chryssostalis,
Başak Ertür, Patrick Hanafin, Costas Douzinas, Patricia Tuitt, and Marinos
Diamantides.
I want to give a special thanks to two wonderful critics, Marc de Wilde
(who also presented on Benjamin at the same panel at Birkbeck, along with
Patricia Tuitt) and Illan rua Wall. I could not have asked for two better
readers. I also want to thank my writing group in the East Bay: Keally
McBride, Kate Gordy, Sarah Burgess, and Darien Shanske, the latter who
was instrumental for help with questions about legal positivism.
I gave several iterations of other chapters too; thanks to Bonnie Honig
at Northwestern and also to Peter Fenves; Michaele Ferguson at Univer-
sity of Colorado, Boulder; Megan Thomas, Vanita Seth, and Dean Mathio-
wetz at UC Santa Cruz; Erik Doxtader, Jill Frank, and Justin Weinberg
viii Acknowledgments
at University of South Carolina; Linda Ross Meyer at Quinnipiac Law
School.
I also owe thanks to various friends and colleagues for their advice,
work on panels, and support: Jodi Dean for helping to keep the Left both
fun and alive, Jimmy Casas Klausen for being a fellow (and avowed) anar-
chist, the aforementioned Bonnie Honig for her inspiring example as a
thinker, reader, and writer. Shalini Satkunanandan and Andrew Poe were
both very helpful and generous with their time and thoughts for the Kant
chapter. Thanks are also due to Andrew Dilts, Charles Barbour, Andrew
Poe, Mark Andrejevic, Jennifer Culbert, Ben Wurgaft, Jackie Stevens,
Ron Sundstrom, Miguel Vatter, Ben Golder, Brian Bernhardt, Antonio
Vázquez- Arroyo, Kevin Olson, Robyn Marasco, Banu Bargu, Jill Stauffer,
Christina Tarnopolsky, Paul Passavant, Wendy Brown, Panu Minkkinen,
Stacy Douglas, Ayça Çubukçu, Samera Esmeir, Mark Antaki, Vicky Kahn,
David Bates, and many others. Thanks also to my terrific students in my
fall 2012 seminar on Walter Benjamin and especially to Tatsuya Goto with
his excellent help and advice about Kant. Above all thanks to my wonderful
and ever supportive family: Carlos, Jacques, Rocio, Nina and Kathryn, Elic
and Mark, Ralph, Huguette, Django, Shalini and Shaan.
Earlier versions of a couple chapters, or parts of chapters, appeared in
other publications. A portion of chapter 1 is based on my contribution
entitled “The One and Only Law: Walter Benjamin, Utopianism and the
Second Commandment” that appears in Austin Sarat, ed., Law and Utopian
Imagination (Stanford University Press, 2014), published with permission.
Part of the conclusion appeared as “Can the Law Transcend Its Own Vio-
lence?” 31 Quinnipiac L. Rev. 551 (2013), also published with permission.
The cover art is a painting by my mother, Huguette Martel. It is a
painting of Walter Benjamin’s passport photo, which is held by the Walter
Benjamin archive at the Academy of Art in Berlin.
Introduction
A Slight Adjustment
Numa’s Lie
How do we know when or if a law is legitimate? On what basis can we
judge the functioning of a legal system that effectively inscribes us and
produces us as subjects? Tradition and “nature,” “reality” and “procedure”
are the usual answers to these questions, but they seem to beg the question
in the very way they posit something hazy and indefinable, or perhaps just
tautological, in place of a hard and fast source of judgment. Because of this,
law has a tendency to ask us not to look at it too closely, not to see “how
the sausages are made.” Asking too probing questions of law threatens its
very basis for authority, its quality of definitively answering and moving on
from vexing questions of conduct and justice. We feel that we need the law
in order to make a society possible at all and therefore are generally willing
to suspend a certain degree of legal skepticism.
Such a suspension of skepticism has long roots in the Western tradi-
tion. Machiavelli famously tells us in his Discourses on Livy that the true
founder of Rome was not Romulus but Numa, the king who pretended to
receive laws from a goddess and, by that ploy, established Rome as a cred-
ible and sustainable polity.1 Without law, Machiavelli tells us, the Romans
were “savage.”2 He also tells us that “Numa mistrusted his own authority,
lest it should prove insufficient to enable him to introduce new and unac-
customed ordinances in Rome.”3 By resorting to his fable about the origins
of the law, Numa was able to assert his own laws and have them be accepted
by the Romans, allowing the city to flourish and expand.