Abstract
Drawing on the work of Walter Benjamin, Harold Bloom, and Theodor Adorno this article proposes the re-imageination of international law as a ‘pure means’ of representation rather than a means of exercising control over the world.
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Notes
See Koskenniemi (2005, p. 59) on “ascending” and “descending” styles of legal argument.
Benjamin (2004a, p. 239): ‘the law’s interest in a monopoly of violence vis-à-vis individuals is explained not by the intention of preserving legal ends but, rather, by the intention of preserving the law itself’.
See International Law Commission (2006b, p. 14, para. 14): ‘although there are “problems”, they are neither altogether new nor of such nature that they could not be dealt with through techniques international lawyers have used to deal with the normative conflicts that have arisen in the past’.
Ibid (p. 17, para. 20).
See Benjamin (2002, p. 462, N2a,3): ‘image is dialectics at a standstill. For while the relation of the present to the past is a purely temporal, continuous one, the relation of what-has-been to the now is dialectical: is not progression but image, suddenly emergent. – Only dialectical images are genuine images (that is, not archaic); and the place where one encounters them is language. Awakening’; see also Parfitt (2014, p. 297) on ‘a revolutionary re-imagining of the discipline’ as a means of overcoming international law’s Eurocentrism. My use of ‘re-imageination’, as opposed to ‘re-imagination’, conveys the distinctly Benjamin character of the approach advocated.
See Benjamin (1998, p. 27): ‘It is characteristic of philosophical writing that it must continually confront the question of representation’.
Bloom (1997, p. xix): ‘great writing is always at work strongly (or weakly) misreading previous writing’; Bloom (1997, p. 5): ‘Poetic history … is held to be indistinguishable from poetic influence, since strong poets make that history by misreading one another, so as to clear imaginative space for themselves’.
Marks (2006, p. 346): ‘Bloom coined the phrase “anxiety of influence” to refer to the shock felt by poets when they recognize the influence of their precursors in their work, and their despair at ever being able to come up with anything original. At the same time, it refers to the things they do to overcome this sense of belatedness in relation to the tradition to which they belong’.
See the opening Fry quotation; see also Adorno (2007, p. 281): ‘the role, the heteronomy prescribed by autonomy, is the latest objective form of an unhappy consciousness’.
Adorno (2007, p. 309): ‘In law the formal principle of equivalence becomes the norm; everyone is treated alike … For the sake of an unbroken systematic, the legal norms cut short what is not covered … The total legal realm is one of definitions. Its systematic forbids the admission of anything that eludes their closed circle … These bounds, ideological in themselves, turn into real violence as they are sanctioned by law as the socially controlling authority’.
See Benjamin (1998, p. 119) on ‘the onlooker’: ‘He learns how, on the stage, a space which belongs to an inner world of feeling and bears no relationship to the cosmos, situations are compellingly presented to him.’
See Benjamin quotation in n. 5 above.
Benjamin (2004a, p. 247): ‘Since, however, every conceivable solution to human problems, not to speak of deliverance from the confines of all the world-historical conditions of existence obtaining hitherto, remains impossible if violence is totally excluded in principle, the question necessarily arises as to what kinds of violence exist other than all those envisaged by legal theory.’ On means-ends thinking and law’s violence see Benjamin (2004a, p. 236), and the discussion below at nn. 46–49.
See Benjamin (2005a, pp. 771–772): ‘[T]he conventional distinction between author and public… begins … to disappear … the reader is at all times ready to become a writer—that is, a describer, or even a prescriber’; Knox (2011, p. 46): ‘in a sense, we are all lawyers’; Feyerabend (2010, xxvii): ‘non-experts often know more than experts and should therefore be consulted, and … prophets of truth (including those who use arguments) more often than not are carried along by a vision that clashes with the very events the vision is supposed to be exploring’; Charlesworth (2002, p. 391): ‘An international law of everyday life would require a methodology to consider the perspectives of non-elite groups’; Anghie (2004, p. 318): ‘I continue to hope … that international law can be transformed into a means by which the marginalized may be empowered. In short, that law can play its ideal role in limiting and resisting power.’
Parfitt (2014, p. 304): ‘[the] contextualist approach [advocated by Anne Orford] … is … in danger of throwing the baby out with the bathwater and, in particular, of abandoning its commitment to emancipatory change’. At pp. 305-6 Parfitt concludes that there is no such abandonment in Orford’s work.
See Parfitt (2014, p. 297) for a similar point: ‘if “doctrine” can be understood as the space in which international history is transformed, or “imaged”, into international legal history … then it would seem that doctrine is where the process of revolutionary re-imagination and re-ordering must begin.’
See Benjamin quotation in n 5 above; on historical materialist method see Benjamin (1999, p. 254): ‘A historical materialist cannot do without the notion of a present which is not a transition, but in which time stands still and has come to a stop. For this notion defines the present in which he himself is writing history … The historical materialist … remains in control of his powers, man enough to blast open the continuum of history.’ The anachronistic, gendered language of this passage is to be regretted. I read it as an affirmation of the capacity of individual, materialistic-idealistic practice to disturb established, historical patterns. On the tension between idealism and materialism in Benjamin see Buck-Morss (1991, pp. 173–177), who treats Benjamin as a critic of idealism and allegory as an idealistic form of practice, and Pensky (1993, pp. 148-150) who, contra Buck-Morss, treats Benjamin as a cautious advocate of a materialistic-idealism and Benjamin’s work on allegory as the expression of that idealism. On the basis outlined in the latter sections of this article, I prefer Pensky’s view and read Benjamin as a theorist and advocate of allegory as a mode of practice which is the expression, per Pensky (1993, p. 150), of ‘a fragile, productive critical subjectivity’.
See Sontag (1983, p. 104): ‘What is important now is to recover our senses. We must learn to see more, to hear more, to feel more.’
Benjamin (1999, p. 249): ‘A Klee painting named ‘Angelus Novus’ shows an angel looking as though he is about to move away from something he is fixedly contemplating. His eyes are open, his mouth is open, his wings are spread. This is how one pictures the angel of history. His face is turned towards the past. Where we perceive a chain of events, he sees one single catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet. The angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing from Paradise; it has got caught in his wings with such violence that the angel can no longer close them. This storm irresistibly propels him into the future to which his back is turned, while the pile of debris before him grows skyward. This storm is what we call progress’; Benjamin (2002, p. 473, N9a, 1): ‘The concept of progress must be grounded in the idea of catastrophe. That things are “status quo” is the catastrophe.’
See Adorno quotation in n. 10 above.
See Orford (2004, p. 444): ‘one of the traditional strategies by which international lawyers respond to [a] … pervading crisis of authority [is] … through an attempt to reassert control or mastery’.
See Horkheimer (2004, p. 52): ‘the positivists reiterate that science proceeds by observation and describe circumstantially how it functions… they will say that it is not their concern to justify or prove the principle of verification—that they merely want to talk scientific [or legal] sense … [but] in refusing to verify their own principle—that no statement is meaningful unless verified—they are guilty of petitio principii, begging the question.’
See text to n. 4 above.
See, in particular, Judge Greenwood (ICJ 2010c, para. 29): ‘Courts and tribunals are necessarily required to focus for most of the time upon the events of the past … the Court has concluded that Uruguay’s conduct to date has violated its substantive obligations and that the declaration of a procedural breach is the only remedy which it is appropriate for the Court to grant.’
I am grateful to Professor Martti Koskenniemi for his suggestion that I consider these ICSID claims. See Waibel (2007) for background.
See Charlesworth (2002, p. 391): ‘Through regarding “crises” as its bread and butter and the engine of progressive development of international law, international law becomes simply a source of justification for the status quo.’
See French and Rajamani (2013, p. 460): ‘how often, and how far, does climate change legal literature truly ever question the underlying purpose of the climate change regime; to posit any form of heresy as to its long-term normative sustainability?… most work rarely questions the purpose and value of the overarching regime itself’, and see p. 461: ‘The present diplomatic negotiations … are a process that we feel compelled, as both commentators and participants, to believe to be heading somewhere.’
See Adorno quotation in n. 10 above.
On ‘reflection’ see Adorno (2007, p. 12): ‘Philosophical reflection makes sure of the nonconceptual in the concept’; and see Adorno (2007, p. 365): ‘If negative dialectics calls for the self-reflection of thinking, the tangible implication is that if thinking is to be true—if it is to be true today, in any case—it must also be a thinking against itself.’
See Marks (2006, p. 347): ‘when we treat international law as a redemptive force that could save the world if only it were properly respected and enforced, we obscure the possibility that international legal norms may themselves have contributed to creating or sustaining the ills from which we are now to be saved’.
See n 15.
On the Benjaminian practice of legal history see Tomlins (2012). Tomlins, in my view, misreads Benjamin in claiming that a central concept in Benjamin’s thought - the ‘dialectical image’—whilst ‘[sensitive] to the fragmentary nature of what is apprehended … [holds] the possibility of completing the comprehension of truth content by critique, by theory, render[ing] it an antidote to indeterminacy and complexity’—Tomlins (2012, p. 57)—overlooking the importance of the ‘idea’, as a frame situated in practice and remade through practice and failing to appreciate the nature of the dialectical image, not as an ‘antidote to indeterminacy and complexity’, but, via an allegorical method, as the most truthful, real account of reality.
Adorno (2005a, p. 265): ‘The primacy of the object must be respected by praxis’; Benjamin (1998, p. 30): ‘Again and again the statement that the object of knowledge is not identical with the truth will prove itself to be one of the profoundest intentions of philosophy in its original form, the Platonic theory of ideas’; Benjamin (1998, p. 28): ‘Inasmuch as it is determined by [the] concept of system, philosophy is in danger of accommodating itself to a syncretism which weaves a spider’s web between separate kinds of knowledge in an attempt to ensnare the truth as if it were something which came flying in from outside.’
See Benjamin (1998, pp. 162–165), rejecting a symbolic concept of language and its attempt to contain reality in favour of allegory—and on that rejection see Finkelde (2009, p. 60); Benjamin (2005b, p. 718): ‘The symbol is definable as a sign by means of which no similarity can appear’; see also Benjamin (1998, p. 27): ‘It is characteristic of philosophical writing that it must continually confront the question of representation … The more clearly mathematics demonstrate that the total elimination of the problem of representation … is the sign of genuine knowledge, the more conclusively does it reveal its renunciation of that area of truth towards which language is directed.’
See Benjamin (2004b, p. 74) on ‘imperfect’ language; Adorno (2004, p. 184): ‘The comportment of artworks reflects the violence and domination of empirical reality by more than analogy. The closure of artworks, as the unity of their multiplicity, directly transfers the nature-dominating comportment to something remote from its reality.’
See Marks (2007, p. 208): ‘there can be no expectation that [international law] … will one day be placed beyond ideology or made ideology-proof … The work of critique is never done.’
Benjamin (2004a, p. 247): ‘every conceivable solution to human problems, not to speak of deliverance from the confines of all the world-historical conditions of existence obtaining hitherto, remains impossible if violence is totally excluded in principle’.
Benjamin (1998, pp. 28–29): ‘Just as mosaics preserve their majesty despite their fragmentation into capricious particles, so philosophical contemplation is not lacking in momentum … The value of fragments of thought is all the greater the less direct their relationship to the underlying idea, and the brilliance of the representation depends as much on this value as the brilliance of the mosaic does on the quality of the glass paste’.
Adorno (2004, p. 187): ‘Form is … conceived as something superimposed, subjectively dictated, whereas it is substantial only when it does no violence to what is formed and emerges from it.’
See Benjamin (2004a, p. 239): ‘the law’s interest in a monopoly of violence vis-à-vis individuals is explained not by the intention of preserving legal ends but, rather, by the intention of preserving the law itself’.
Ibid (p. 236): ‘The task of a critique of violence can be summarized as that of expounding its relation to law and justice … it is clear that the most elementary relationship within any legal system is that of ends to means’; see also Honneth (2009), p. 98).
Ibid (p. 248): ‘at [the] very moment of lawmaking, it specifically establishes as law not an end unalloyed by violence but one necessarily and intimately bound to it, under the title of power. Lawmaking is powermaking, assumption of power, and to that extent an immediate manifestation of violence.’
Ibid: ‘lawmaking pursues as its end, with violence as the means, what is to be established as law’.
See also ibid (p. 239): ‘violence, when not in the hands of the law, threatens it not by the ends that it may pursue but by its mere existence outside the law’.
Ginzberg (1911, pp. 299–300): ‘Not until after the Resurrection will their punishment cease, for even in spite of their grave sin they were not given over to eternal damnation’; Benjamin (2004a, p. 250): ‘it is justifiable to call this [divine] violence … annihilating; but it is so only relatively, with regard to goods, right, life, and suchlike, never absolutely, with regard to the soul of the living’.
Benjamin (2004a, p. 251): ‘The proposition that existence stands higher than a just existence is false and ignominious, if existence is to mean nothing other than mere life’; See Butler (2006, p. 216): ‘positive law vanquishes life and its necessary transience, both its suffering and its happiness’.
On ‘the now’ see Benjamin quotation in n 5 above.
See Benjamin (1998, p. 28) quote in n 37 above.
Adorno (2004, p. 188): ‘There is absolutely no reducing the concept of form to mathematical relations … Such relations … play a role as technical procedures, yet they are not form itself but rather its vehicle’.
Ibid (p. 189): ‘Form secularizes the theological model of the world as an image made in God’s likeness, though not as an act of creation but as the objectivation of the human comportment that imitates creation; not creatio ex nihilo but creation out of the created.’
Rang (1994, p. 231): ‘The agonists come running from the door of damnation on the left. They run in unison—through the medium of chaos’.
Ibid: ‘The Athenian-Syracusian theater is an agon (cf. the word agonist)’.
On (mis-)reading see text to n 12 above.
Benjamin (1998, p. 27): ‘It is characteristic of philosophical writing that it must continually confront the question of representation.’
On ‘toolbox’ see text to n 4 above.
On Bloom and “misprision” see text to n 12 above.
On ‘the now’ see quotation in n 5 above.
See text at around n 50 above.
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Acknowledgments
I am very grateful to Ralph Wilde and Catherine Redgwell for their support as doctoral supervisors, to Susan Marks, Peter Goodrich, Hazel Biggs, and Aoife O’Donoghue, and to the anonymous reviewers of earlier drafts for their thoughtful comments. Thanks to Martti Koskenniemi and Phillipe Sands (examiners of the doctoral thesis on which this article is based), to David Kennedy, Sundhya Pahuja, Shaun McVeigh, Gleider Hernandez, Yoriko Otomo, Stephen Humphreys, and Anne Orford, and to the participants and organisers of conferences, workshops and seminars in which versions or aspects of this paper were presented. Some aspects of the argument presented here are sketched in my article ‘Fragmented Method: Walter Benjamin, Law, and Representation in Joseph S. Jenkins’ Inheritance Law and Political Theology in Shakespeare and Milton’ (2014) Law and Literature 26(3): 389. I am grateful to UCL’s Graduate School for financial support of much of this research undertaken during doctoral study. Any inadequacies or errors are my fault.
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Nicholson, M. Walter Benjamin and the Re-Imageination of International Law. Law Critique 27, 103–129 (2016). https://doi.org/10.1007/s10978-015-9170-z
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DOI: https://doi.org/10.1007/s10978-015-9170-z