Messianic Politics (iii): Law

Agamben is basically correct when he says of messianism that its “essential character” concerns a “particular relation to the law.” He argues that “in Judaism as in Christianity and Shiite Islam, the messianic event above all signifies a crisis and a radical transformation of the entire order of the law… The Messiah is… the figure through which religion confronts the problem of the Law, decisively reckoning with it” (Potentialities, 163). This would be true of both the inflationary and the deflationary traditions of messianism. The fundamental difference between them, then, would be the way that law is “reckoned” with. In either case the law would be “read” differently. However, while for the latter it is basically a hermeneutical question of a fidelity to the law in a new interpretive context, for the former it is ultimately a political question that has to do with the validity of the law as such. Agamben falls much more into the inflationary category but his reading of law (and of Benjamin) in the messianic era, as I hope to show before too long, is more complex than a simple antinomianism – the Pauline notion of katargein, which means to “render inoperative” (e.g. Rom 7.6), is significant here.

But behind Agamben, in the inflationary tradition, stands Benjamin. Inspired by Judith Butler’s excellent essay, I would like to examine Benjamin’s early text on law: “Critique of Violence.” Here it would be relatively easy to identify an antinomian or anarchistic impulse which does away with law in the interest of a radically new, indeed miraculously ordained, order. However, there is more at work in this text than that. Butler notes that “Benjamin nowhere argues that all legal systems should be opposed, and it is unclear on the basis of this text whether he opposes certain rules of law and not others. Moreover, if he traffics here with anarchism, we should at least pause over what anarchism might mean in this context and keep in mind that Benjamin takes seriously the commandment “Thou shalt not kill”” (203). Thus, according to Butler, Benjamin evades the charge of antinomianism in two moves. First, by way of occlusion: law receives no positive valuation in this essay, but this does not mean that it has none for Benjamin; and second, by recourse to a certain understanding of commandment. It is the second that most interests me here.

Benjamin begins his essay by highlighting the essential connection between law (and justice) and violence. “The task of a critique of violence,” he says, “can be summarized as that of expounding its relation to law and justice…With regard to [law], it is clear that the most elementary relationship within any legal system is that of ends and means, and, further, that violence can first be sought only in the realm of means, not ends” (277). Violence is only ever justified legally in terms of the legitimacy of the reason for which it is dispensed (“because they are an immanent threat to our national security,” “because it’s the only way to be sure he doesn’t do it again,” etc.). But, according to Benjamin, this is no valid criterion for critiquing violence, as it does not target the violence itself, but only the particular cases of its use (international disputes, capital punishment, etc.). Therefore, “a more exact criteria is needed, which would discriminate within the sphere of means themselves” (ibid).

In order to critique violence itself – as means – it is necessary to understand more fully its essential connection to law. The state’s monopoly on violence, claims Benjamin, is attained in the interest of preserving, not any particular law, but law as such (this is what Benjamin calls “law-preserving violence”). The eruption of any violence that falls outside of the rule of law threatens: (1) to reveal the violence constitutive of any legal order (what Benjamin calls “lawmaking violence”); and (2) to potentially found a new legal order. The state recognizes that violence is threatening to the whole legal edifice and therefore mostly opposes and extra-state exercise of it or, in some cases, strategically negotiates with it by making certain concessions (e.g. legalizing labour strikes).

Benjamin summarizes the connection between law and violence in its two modes: "All violence as a means is either lawmaking or law-preserving. If it lays claim to neither of these predicates, it forfeits all validity. It follows, however, that all violence as a means, even in the most favorable case, is implicated in the problematic of law itself" (287).

With respect to law-preserving violence, Benjamin claims that a legal contract “leads finally to possible violence. It confers on both parties the right to take recourse to violence in some form against the other, should he break the agreement. Not only that; like the outcome, the origin of every contract also points toward violence” (288) This latter aspect of law – its originary or lawmaking violence – is illustrated by what Benjamin calls “mythical violence.” Such a violence is “not a means but a manifestation.” (294) That is, “mythical violence in its archetypal form is a mere manifestation of the gods. Not a means to their ends, scarcely a manifestation of their will, but first of all a manifestation of their existence. Benjamin refers to the legend of Niobe in this respect (294). This is the fateful nature of violence in its lawmaking form, it is by fiat that violence is dispensed, not by virtue of a criminal act, as though a prior law had been transgressed; instead, law comes along after the fact, retroactively translating suffering into guilt. This is what distinguishes such violence from sheer destructiveness: “Although it brings a cruel death to Niobe’s children, it stops short of the life of their mother, whom it leaves behind, more guilty than before through the death of her children both as an eternally mute bearer of guilt and as a boundary stone on the frontier between men and gods.” (295) Thus law, originally violent and violently maintained, can establish itself as “power,” but never as “justice.” (295) Justice, which is singular, not generalizable, must be sought elsewhere, in another force, another violence that is “unalloyed” to any ends and binds itself no system of legality. Such a possibility exists, for Benjamin, only in a “divine violence.”

If mythical violence is lawmaking, divine violence is law-destroying; if the former sets boundaries, the latter boundlessly destroys them; if mythical violence brings at once guilt and retribution, divine power only expiates; if the former threatens, the latter strikes; if the former is bloody, the latter is lethal without spilling blood (297).

Where the legend of Niobe was an exemplary case of lawmaking, mythical violence, Benjamin refers to the biblical story of Korah in Numbers 16 as an instance of divine violence. It is not clear to me that the story meets all of the criteria that Benjamin has just delineated as characteristic of divine violence – law-destroying, boundary-destroying, expiatory, bloodless (he does mention that the law-destroying aspect “cannot be shown in detail here”) – however, the bloodlessness of the Levites’ who went down “alive into Sheol (v.33) is an essential part of the story; and their “becoming holy at the cost of their lives” (v.38) speaks to the expiatory character. Benjamin acknowledges that holding up as exemplary a story of annihilation will itself provoke “violent reactions” and anticipates the counter argument that “taken to its logical conclusion it confers on men even lethal power against one another.” (298) Without a doubt, this counter argument should be raised. But Benjamin takes this opportunity to insert a discussion on the “commandment” as distinct from law. I will cite Benjamin at some length.

For the question “May I kill?” meets its irreducible answer in the commandment “Thou shalt not kill.” This commandment precedes the deed, just as God was “preventing” the deed. But just as it may not be fear of punishment that enforces obedience, the injunction becomes inapplicable, incommensurable once the deed is accomplished. No judgment of the deed can be derived from the commandment. nd so neither the divine judgment, nor the grounds for this judgment, can be known in advance. Those who base a condemnation of all violent killing of one person by another on the commandment are therefore mistaken. It exists not as a criterion of judgment, but as a guideline for the actions of persons or communities who have to wrestle with it in solitude and, in exceptional cases, to take on themselves the responsibility of ignoring it. Thus it was understood by Judaism, which expressly rejected the condemnation of killing in self-defense. But those thinkers who take the opposed view refer to a more distant theorem, on which the possibly propose to base even the commandment itself. This is the doctrine of the sanctity of life, which they either apply to all animal or even vegetable life, or limit to human life (298).

I want to place this extended citation alongside another: a text from Rozensweig’s Star of Redemption that, no doubt, stands somewhere in the background of Benjamin’s reflections on commandment. I will reserve my own reflections on this juxtaposition for the next post.

Rosenzweig’s takes up the recurring biblical question: “What then is the commandment of all commandments?” He responds with the recurring biblical answer: “Love!...” (Deut 6.4-5; Mark 12.29-30; 1Cor 13.13; Gal 5.14). He then offers the following commentary:

Surely, love cannot be commanded; no third party can command it or obtain it by force. No third party can do this, but the One can. The commandment of love can only come from the mouth of the love. Only the one who loves, but really he can say and does say: Love me. From his mouth, the commandment of love is not a strange commandment, it is nothing other than the voice of love itself. The love of the lover has no other word to express itself than the commandment. Everything else is already no longer immediate expression, but explanation – explanation of love. The explanation of love is very deficient, and like every explanation, it always comes after the event; and therefore, since love of the lover is the present, it really always comes too late. If the beloved, in the eternal faithfulness of her love, did not open her arms to receive it, the explanation would fall completely into the void. But the commandment in the imperative, the immediate commandment, springing from the moment and already on the way to being said aloud at the moment of its springing up – for saying aloud and springing up are one and the same thing in the imperative to love – the “Love me” of the lover, this is the absolutely perfect expression, the perfectly pure language of love. Whereas the indicative has all the circumstances behind it that established the objectivity and whose purest form seems to be the past, the commandment is an absolutely pure present for which nothing has prepared it. And not only has nothing prepared it; it is absolutely unpremeditated. The imperative of the commandment makes no forecast for the future; it can imagine only the immediacy of obedience. If it were to think of a future or an “always,” it would be neither a commandment nor an order, but a law. The law counts on periods of time, on a future, on duration. The commandment knows only the moment; it waits for the outcome right within the moment of its growing audible, and when it possesses the spell of the genuine tone of a commandment, it will never be disappointing in this awaiting.

The commandment is thus – pure present. But, whereas every other commandment, at last when considered from the outside and as it were after the event, could have been just as well a law, the commandment of love alone is absolutely incapable of being law; it can only be commandment. All other commandments can pour their content into the form of the law, this one alone refuses to be decanted, its content tolerates only the form of the commandment, of the immediate presentness and unity where consciousness, expression and waiting for fulfillment are gathered together. So, as the one pure commandment, it is the highest of all commandments, and where it takes the lead as such, then all that could also be law by another route and seen from the outside also becomes a commandment. God’s first word to the soul that is united with him is the “Love me”; so, everything that he could still reveal to it otherwise under the form of law, is transformed without further ado into words which he commands it “today”; all this becomes the setting forth of the one and first commandment, the commandment to love him. All Revelation is placed under the great sign of the today; it is “today “ that God commands and it is “today that his voice is to be heard. It is the today in which the love of the lover lives – this imperative today of the commandment (190-192).