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The One and Only Law

Walter Benjamin and the Second Commandment

The University of Michigan Press

The One and Only Law

In terms of his contribution to legal theory, Benjamin leaves us in a strange position. On the one hand, in his "Critique of Violence," Benjamin sets out a very comprehensive overview of the law, ranging from natural to positive law. Here, he describes the parameters of law as we understand it, its basis for authority. On the other hand, via his notion of divine violence, also promoted in that essay, he offers a vision of a law-destroying deity that upends and subverts all human contrivances. If law is both the foundation of political authority and also, in its divine manifestation, the undoing of the same, what does this say about our actual practices? What kind of law are we permitted in the face of divine interference? Does law end up being completely meaningless in the face of a messianic force that seems purely destructive?

In this chapter, I will argue that for Benjamin divine interference does not completely undermine law as a human practice; instead — as already suggested in the introduction — it leaves us with only one law, the Second Commandment against idolatry. Insofar as the act of divine violence is itself an act explicitly directed against idolatry, it offers a celestial model for law that serves us on earth as well. At the outset, I should say that this argument is an interpretation of Benjamin. He does not come out and say that we must obey the Second Commandment and only this commandment — at least not directly. But I will argue that such a conclusion comes out of an engagement with his writing, especially in terms of his most extensive commentary on law, his well-known essay "Critique of Violence."

To obey one single law may seem to diminish law to a mere pith, a singularity that cannot address the complexity of human life and experience. In fact, however, I will argue that from a Benjaminian perspective, this one law is the only law that we need. This law protects us from the ossification of law as a whole. It prevents law from being "bastardized" by myth (to use Benjamin's own term). With it we are given just what is required for law to function as a way to safeguard and guide the human polity and no more. Indeed, as I will go on to argue, for Benjamin, by extension, all other laws must not only be superfluous but actually distort and interfere with this one, uniquely antifetishistic law.

The Origin of Law

In "On Language as Such and the Language of Man," an essay that he wrote in 1916 but which was not published in his lifetime, Benjamin sets out an origin story for law. Typical of his theologically inflected political theory, for Benjamin the origin of law has a supernatural basis; it comes, as already suggested in the introduction, with the Fall of humanity from paradise. More specifically, for Benjamin, the law comes out of a change in language, at least as far as human beings are concerned, that was precipitated by the Fall.

Benjamin tells us that in paradise there was already language. When God created the world, it was done through words ("Let there be"). Benjamin says further,

Language is therefore both creative and the finished creation; it is word and name. In God, name is creative because it is word, and God's word is cognizant because it is name. "And he saw that it was good" — that is, he cognized it through name. The absolute relation of name to knowledge exists only in God; only there is name, because it is inwardly identical with the creative word, the pure medium of knowledge.

For Benjamin, human beings have a specific and unique position in terms of God's unmediated connection to created nature: "of all beings, man is the only one who names his own kind, as he is the only one whom God did not name." Given his ability to name (including naming Eve), Adam also gives a spoken name to the things of the world, a name that corresponded perfectly and unmediatedly to the true (but mute) name that God had already given them. In this way, Benjamin tells us that the "name-language of man and the nameless language of things [are] related in God."

With the coming of the Fall, this harmony between human and divine (and material) language changes. Benjamin tells us that

the knowledge to which the snake seduces, that of good and evil, is nameless. It is vain in the deepest sense. ... Knowledge of good and evil abandons name; it is a knowledge from outside, the uncreated imitation of the creative word.

In this way, by aligning ourselves with such a false imitation of truth (as initiated by the knowledge of good and evil), human beings abandon their connection to the "mute language" of things. Instead, an "other muteness" becomes manifest in the material world, a silence that reflects human abandonment. As a result of this change, nature displays a "deep sadness" at the loss of human naming. Objects become our tools as far as we are concerned; the world of simulacra and the phantasmagoria is born (the "uncreated imitation of the creative word"). As a result of such an imitation, human beings "f[a]ll into the abyss of the mediateness of all communication, of the word as means, of the empty word, into the abyss of prattle." In other words, human beings become idolators one and all.

It is at this point that the law comes into force. Benjamin tells us: "In the Fall, since the eternal purity of names was violated, the sterner purity of the judging word arose." Judgment is God's response to our idolatry. Benjamin also says of this:

This judging word expels the first human beings from Paradise; they themselves have aroused it in accordance with the immutable law by which this judging word punishes — and expects — its own awakening as the sole and deepest guilt.

Here, judgment itself becomes part of language but in a new guise, one that produces in its wake the guilty subjects that we all are (that is, the complicit, idolatrous beings that constitute the postlapsarian individual).

Although this may be considered the "origin of law," we see that for Benjamin, in some sense this origin was already predetermined, part of the architecture of paradise. In thinking about the Tree of Knowledge and the role that it plays in fomenting idolatry (as well as the judgment that results from Adam's disobedience), Benjamin tells us:

The Tree of Knowledge stood in the garden of God not in order to dispense information on good and evil, but as emblem of judgment over the questioner. This immense irony marks the mythic origin of law.

This is, perhaps, the critical point to grasp in terms of Benjamin's notion of the sources of law. The Tree of Knowledge is, in effect, a tree of judgment. The knowledge of this tree is not new to the occupants of paradise and hence is not in and of itself the point of the tree's presence in the garden. Earlier in the essay, Benjamin tells us:

Even the existence of the Tree of Knowledge cannot conceal the fact that the language of Paradise was fully cognizant. Its apples were supposed to impart knowledge of good and evil. But on the seventh day, God had already cognized with the words of creation. And God saw that it was good.

Thus the concept of good (and perhaps by extension, evil) is already present in the garden. The tree's presence attests to a different calculation, one based not on good and evil (which Benjamin calls "nameless" concepts) but on law. But it isn't until the actual expulsion from paradise that law comes into its own. This, in two critical senses: first, we see the creation of law as mythic. This is the law produced by the subjects of judgment born from our encounter with the Tree of Knowledge. This is the form of law that attempts to assuage its guilt by recourse to truths from which it is henceforth permanently banished (hence a "mythic" origin). Second, the law simultaneously becomes in effect divine law, God's commandments, which remain valid even in the face of human disobedience. Although in some sense God's law has always been present (just as the Tree of Knowledge has always stood as a tree of judgment), from the human perspective, it takes on a new valence as the source of judgment, as what is now withheld from us as a result of the Fall. These two forms — or perhaps appearances — of law delineate the context in which a consideration of how to obey the Second Commandment must operate.

Divine versus Mythic Violence

In order to connect Benjamin's theological understanding of the origin of law with questions of actual human practices, it is necessary to turn from an engagement with "On Language as Such and the Language of Man" to two writings of Benjamin's that directly pertain to the question of law and our relationship to it. These essays are his very well known "Critique of Violence" along with a corresponding (and less well known) essay fragment, "The Right to Use Force," which offers useful commentary and elaboration on the better-known essay. These essays were written very closely together in time (they were written in 1921 and 1920 respectively, although only the "Critique" was published in Benjamin's lifetime).

In the "Critique," Benjamin runs through many distinctions in law, including between the aforementioned natural and positive law and between lawmaking and law-preserving violence. The key distinction in this essay, however, as I and many others read it, is that between divine and mythic violence.

As is often the case with one of Benjamin's essays, as you move along through the work, the ground that the reader has assumed at the beginning becomes upended and subverted by later iterations in the text. Not unlike the usurpation of law that Benjamin attributes to divine violence in the essay, we as readers are left similarly upended, without recourse to those easier answers and assurances that the essay seemed to supply us with at the beginning.

The introduction of the distinction between mythic and divine violence, which comes about two-thirds of the way into the essay, calls into question much of the careful work that Benjamin had painstakingly laid out (and without evident foreshadowing) in the earlier portions of the essay. The iterations of law that he has cataloged are revealed to be instances of mythic law, that is, law that is idolatrous, a false, human-derived stand-in for divine law.

Benjamin introduces the distinction between mythic and divine violence by asking, "What kinds of violence exist other than all those envisaged by legal theory[?]" In other words, what force or power of authority exists beyond the confines of the human imagination? He asks this because, as he sees it, there is a chronic "insolubility of all legal problems." For Benjamin, despite the various distinctions that we make within contemporary practices of law, no iteration of it can serve as its own ground or foundation; no law that human beings derive on their own can ever actually produce a true form of justice. Benjamin tells us that "it is never reason that decides on the justification of means and the justness of ends: fate-imposed violence decides on the former, and God on the latter." Here we see that the law — such as we know it — is produced randomly, without recourse to any actually true principles. In this way, the law takes on the character of fate; a random destiny that we cannot resist.

For Benjamin, as we have already seen, there is a true and perfect law — God's divine law — but as postlapsarian subjects we are fated to never know it even as we remain subject to its judgment. In introducing the distinction between mythic violence and divine violence, Benjamin is distinguishing between the truth of law as we imagine it (i.e., as a myth, a human projection onto God), and what it actually is (as divine, something that lies only in the mind of God).

Benjamin furnishes an archetypical example of mythic violence by considering the punishment of Niobe. In the Greek myth that bears her name, Niobe bragged that while she had fourteen children, Leto, the mother of Apollo and Artemis, only had two. In vengeance, Apollo and Artemis slew her children one by one (in some renditions, they leave one child of each gender alive to achieve parity). Niobe was then turned into a weeping rock, forever mourning the loss of her children. After connecting this kind of mythic violence directly to lawmaking violence, Benjamin notes:

The function of violence in lawmaking is twofold, in the sense that lawmaking pursues as its end, with violence as the means, what is to be established as law, but at the moment of instatement does not dismiss violence; rather, at this 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.

In other words, such an action does not eliminate violence in its manifestation but rather preserves it in the heart of the legal process. Niobe, Benjamin notes, is not killed but lives on, "more guilty than before through the death of the children." As opposed to divine violence, which is based on the principle of justice and which (therefore) definitively settles matters — hence eliminating the need for more violence or new law — for Benjamin, mythic violence is endless, unresolvable. He tells us that "power [is] the principle of all mythic lawmaking." Mythic law is, in the end, only force or violence (as is often noted by translators, the German term that Benjamin employs, Gewalt, applies to both); it has no other basis for existing than simple self-assertion.

Mythic violence is thus very much a product of the human world; it seems to come out of nowhere and has no source besides humanity's own conception. It is emblematic of the "prattle" that constitutes myth more generally. The law that is produced therefore remains in an ambivalent limbo, always vulnerable to change and exposure (Benjamin speaks of the "mythic ambiguity" of law). Such ambivalence, as we have already seen, becomes disguised as fate, as undeniable destiny, in order to avoid exposing the vulnerability of law. Thus for Benjamin, "Violence ... bursts upon Niobe from the uncertain, ambiguous sphere of fate." Without the authority and finality of an act truly marked by justice (i.e., an act of divine violence), law — the product of mythic violence — is always grasping for as well as presuming a truth that it does not possess (hence it is idolatrous).

Benjamin writes further of this:

Far from inaugurating a purer sphere, the mythic manifestation of immediate violence shows itself fundamentally identical with all legal violence, and turns suspicion concerning the latter into certainty of the perniciousness of its historical function, the destruction of which thus becomes obligatory.

Benjamin responds to this fundamental ambiguity in law with a call to destroy the law. Or rather, it is not that he calls for its destruction, but notes that it is always in the process of being destroyed. For Benjamin divine violence, a force that comes from outside of the human realm (and, which, as it turns out, is not really a form of violence at all) is the answer to the problem of mythic law. Benjamin famously tells us that "just as in all spheres God opposes myth, mythic violence is confronted by the divine."

Benjamin contrasts the story of Niobe to the story of Korah as an example of divine violence, a force that definitively answers the question of justice and which leaves no ambiguity in its wake. In this story, Korah led a group of Levite priests and other followers in a rebellion against God's authority as instantiated by Moses and Aaron. While Niobe was left alive as a testament to a power that has to reveal itself over and over in order to exist (insofar as its basis for authority is tenuous and unresolved), Korah's punishment is decisive and leaves no sign: Korah and his followers are simply swallowed up by the earth, decisively settling the question of their idolatrous (i.e., mythic) challenge to God's authority.

Benjamin says of this (in another passage of the "Critique" that is very well known):

God's judgment strikes privileged Levites, strikes them without warning, without threat, and does not stop short of annihilation. But in annihilating it also expiates, and a profound connection between the lack of bloodshed and the expiatory character of this violence is unmistakable.

Here, there is there no sign (no blood) but there is an end to punishment. Niobe's punishment cannot end because a source for the authority of law that it produces would end along with it. Korah's punishment brings with it its own expiation; not only is the sin forgiven, it is erased, removed from the world entirely as if it did not exist. Benjamin writes:

The dissolution of legal violence stems ... from the guilt of more natural life, which consigns the living, innocent and unhappy, to a retribution that "expiates" the guilt of mere life — and doubtless also purifies the guilty, not of guilt, however, but of law.

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Excerpted from The One and Only Law by James R. Martel. Copyright © 2014 University of Michigan. Excerpted by permission of The University of Michigan Press.
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