Jeanne Marie Gagnebin and Walter Benjamin’s critique of Law

Among the production of the philosopher Jeanne Marie Gagnebin dedicated to Walter Benjamin’s thought, there are two texts in which Gagnebin seems to work more directly with Benjamin’s reflections on law: “Myth, Law and Justice in Walter Benjamin” and “State of exception: Between catastrophe and necropolitics”. These texts discuss the theoretical-political and historical foundations of the critique of Law made by the German philosopher. This article intends to realize a brief comment on these texts; and also to indicate, based on these texts and other moments in her work, that how Gagnebin interprets Walter Benjamin's philosophy of history brings us important elements for the task (still unfinished) to build a critical perception on law and especially on the historical regime underlying it. Based on this proposal, this article is divided into 3 parts. The first aims to comment the essays previously mentioned; the second to differentiate the reading suggested by Gagnebin from some influential interpretations of Walter Benjamin's work in theory and philosophy of law; and the third to discuss how the


I 1
The Swiss-Brazilian philosopher Jeanne Marie Gagnebin self-identifies as belonging to the May 1968 generation, a generation that emerges from the possibility of being on left-wing without believing in the dogma of progress and is critical of Stalinism, as she stated in an interview (GAGNEBIN, 2009a, p.113).It is within this generation that a first reception of Walter Benjamin occurs among a broader audience (PRESSLER, 2005, p.63-65;GAGNEBIN, 2011a, p. 285;GAGNEBIN, 2021, p. 5), marked at the time by intense disputes.This reception extended discussions on Benjamin's work beyond a relatively narrow and restricted circle that had contact with his texts while the author was alive and immediately after his death.Gagnebin, who arrived in Brazil in the late 1970s, occupies a unique place in the reception of Walter Benjamin's work in the country (PRESSLER, 2005;CHAVES, 2013, p.15-16;2018, p.98 et seq),2 as an interpreter, professor, editor, and also as a translator.
Among her extensive production dedicated to the thought of Walter Benjamin, there are two texts in which the author seems to work more directly with Benjamin's critique of law, discussing its theoretical-political and historical foundations.These texts are "Mito, Direito e Justiça em Walter Benjamin", republished in the dossier on "Walter Benjamin e o Direito" in the Journal Direito e Práxis, and initially published as "Mito e culpa nos escritos de juventude de Walter Benjamin" in her book "Limiar, aura e rememoração: Ensaios sobre Walter Benjamin".Another paper is "Estado de excepción: entre catástrofe y necropolítica", published in the collection "Estado de excepción en Argentina y Brasil: Una perspectiva desde la Teoría Crítica", organized by Miguel Vedda, Renato Franco, and Antônio Zuin, published in Argentina by Editora Herramienta.Both texts are deeply interconnected.The first one provides an overview of Benjamin's early writings (and their repercussions in his later writings) where the relations between myth and guilt are the subject of discussion.The second paper comments on the relations between law, violence, and the state of exception based on the well-known essay on the 1 A first version of this text was presented at the "Colloquium Silenced Narratives: Jeanne Marie Gagnebin reads Walter Benjamin", organized by the Research Group "Critical Philosophy of Law and Literature" at UFPA.I would like to thank Ricardo Dib Taxi for the invitation.1994, p. 7-19;GAGNEBIN, 2014, p. 197-216) allow possible dialogues with objects worked in law, even if in frequent contrast to its dominant apprehensions.They also end up discussing the foundations of the historical regime in which law is placed.In making this proposal, the author comments throughout the text on some of Walter Benjamin's key essays in which he elaborates on the concept of myth.Her emphasis is on the relationships established by the German critic between myth and law, especially between 1916 and 1922.According to Gagnebin, in Benjamin "myth is posited as the conceptual foundation for understanding the notions of 'guilt' and 'punishment'" (GAGNEBIN, 2020(GAGNEBIN, , p. 1938)), seen as manifestations of the mythical domination that culminate in the reduction of life to mere natural life, a movement that also operates within legal institutions.In the 1916 essay "On Language as Such and on the Language of Man", Benjamin sees in the loss of communicability the sign of the emergence of the abstraction typical of judicial language, and "this monstrous irony is the sign of the mythical origin of law" (BENJAMIN, 2011, p. 69;GS II, p. 154).In "Fate and Character" from 1919, the author is much more incisive in describing the consequences of this intertwining between the juridical and the mythical.Problematising the submission of human beings to an order where the temporality of destiny prevails, Benjamin states that: "Happiness and bliss, as well as innocence, lead outside the sphere of destiny.But an order whose sole constitutive concepts are those of unhappiness and guilt, and within which there is no conceivable path to liberation (for insofar as something is destiny, it is unhappiness and guilt [...] Then it is necessary to seek another domain in which only unhappiness and guilt are valid; a balance in which bliss and innocence are found to be too light and rise in the air.This balance is that of the law.It elevates the laws of destiny, unhappiness, and guilt to the status of the measure of the person" (BENJAMIN, 2011, p. 93;GS II, p. 174).
Immediately after this powerful passage, Benjamin identifies in the typical administrative apparatus of the judiciary the materialization of this tendency, which imposes on the subject a nexus of guilt that is posited and presupposed, from which they In the edition of the Journal Direito e Práxis, the philosopher summarizes the argument in the abstract: "The critique of myth is not only a critique of a certain moment experienced by humanity, but it means the critique of a conception of life and destiny that always threatens to return in various forms, particularly in the transformation of mythical coercion into a building of rules and punishments that Law embodies, but which cannot be confused with justice (GAGNEBIN, 2020a(GAGNEBIN, , p. 1935))." This passage is indeed rich in meanings and relevant themes to be addressed.It is important to note that the author highlights significant aspects of modern law, using the metaphor of a building.Modern law is formed within dense socio-historical transformations, influenced by processes of primitive accumulation of capital (MARX, 2013, chap. 24), the dynamics of European colonization, and the emergence of the modern state as a political form (TILLY, 1992).In this highly conflicting dynamic, under the transitional political arrangement of monarchical absolutism, the multiplicity of legal sources characteristic of the medieval world is gradually eliminated (HELLER, 1968, p. 157-172), establishing the monopoly of legislation around the State.In this process, a modern bureaucracy is forged (WEBER, 1985, p. 159-167), with a body of officials linked to the State, spatially distributed and destined to guarantee the newly established territorial, legislative and political unity.The modern standing army, another modern creation linked to territorial wars in the European power system, is part of this body of officials tied to the State, to which modern police power is added to ensure internal order.
The metaphor of the building aptly captures these movements, relating them to the threat of mythical past that tends to be reactualized in different forms to subdue human desires for happiness and emancipation, under the dominance of capitalist production (and religion, says Benjamin) consolidating its hegemony in the period following the bourgeois revolutions.Some questions arise: In what ways does modern law contain the reenactment of the anguish of mythical domination?And in which senses the projection of a secularization movement and the typical rationality of modern law formulated by Weber is in a certain sense problematic?Or, to be more provocative, based on Adorno and Horkheimer, how is the typical instrumental rationality of enlightenment itself immersed in mythical elements that present renewed forms of violence and barbarism?
In the text on the state of exception, Gagnebin engages in a closer reading of Benjamin's essay on "Critique of Violence/Power".Here, the discussion on the relationships between law and violence, which marks Benjamin's text, is revisited.
According to the author, the core of Benjamin's text lies in "a conception of law and the juridical as a territory closely linked to the exercise of violence, and not as an objective and neutral territory aiming to punish and correct injustices.Between 'Recht ' [law] and law [Vorrecht] that refers to the privileges of kings and the wealthy.The main theoretical problem here is to emphasize how law is inseparable from the exercise of power in this unequal order and constitutes one of its forms of expression.This intertwining places the law in a permanent zone of indistinctness where the differentiation between law and the exercise of power and violence lacks solidity.The moments when "excess" becomes evident only demonstrate to Benjamin that it is a deeper problem that superficial analysis tends to overlook.For this purpose, the German critic resorts to various historical phenomena of Europe at that time, such as the State's response to proletarian strikes, war, the death penalty, police power, and others.The socalled "Rule of Law" (Rechtsstaat) coexists with a zone of anomie that is part of its regular mode of operation, discernible to the naked eye depending on which subjects and phenomena one is faced with.This zone of anomie constitutes its existence, but can be created and visibly asserted when what is at stake is "maintaining the order", a moment in which any coherent distinctions between law, its negation, violence, and the exercise of power are called into question.The historical context is crucial to understanding this text, as emphasized by the author in different moments (GAGNEBIN, 2007, p. 207;2014, p. 54;2020b, p. 16-17, and p. 19-20), an observation unfortunately ignored by many commentators of this essay, who tend to view it from a supposed philosophical "purity" that focuses primarily on its language and internal coherence and disregards (or even dismisses) its context.
In both commentaries, the author seeks to draw attention to the radicality of Benjamin's historical critique in his texts addressing law.This search for a different historical experience, distinct from the one governing the capitalist mode of production, is what connects these early texts with his later writings.It is important to highlight the final paragraph of "Myth, Law, and Justice in Walter Benjamin," where the author concludes the text with a sudden shift, going beyond the comments on the relationship between myth and law in Benjamin's writings between 1916 and 1922, while simultaneously revisiting them.Gagnebin interprets Benjamin's writings on Kafka from the 1930s and points to both the reiteration of youth themes in his later works and the presence of the critique of Gewalt (violence/power) in the Berlin essayist's approach to the work of the Czech writer.Under a seemingly simple "last observation", Gagnebin presents an intriguing insight into the way Walter Benjamin reads Kafka.It is essential to quote this lengthy passage: "Benjamin reads Kafka's texts as a lucid literary elaboration, in their irony and despair, of this fatal entanglement in the order of law, as if the path of law could lead to the realm of justice and freedom.Put differently: the forces of myth resurface in Kafka's novels and stories through the labyrinthine description of the buildings of legality (even the 'swampy' forces, to use Bachofen's expression, of a pre-mythical age resurface).In The Trial, K. confuses this legality with a search for justice -perhaps this confusion is his secret guilt, which always sets the machinery of law and punishment in motion.Indeed, only the abolition of this mythical order, which reemerges under the deceptive guise of law, that is, the refusal to conform to its rules, would allow K. to leave behind a mediocre and conventional life, without generosity or freedom, and achieve justice and innocence.In Kafka's texts, true freedom is confined to figures so devoid of power that they do not need the law to maintain it.They are the favorite characters of fools, assistants, Oklahoma theatre actors, or even children who do not want to sleep and run aimlessly at night on the road.They are light-hearted and playful in contrast to so many other figures burdened by guilt and the law, paralyzed, or even slowly killed by the mythical inscription of the sentence on their backs, like the condemned in the story 'In the Penal Colony'.Precisely because they lack power, Kafka's fools cannot liberate or help their companions in distress.But they are the unmistakable, albeit utopian, sign that the realm of freedomthat is, also a messianic reconciliation with the forces of nature -would be a realm without the need for domination, the possibility of a human happiness that would not require mythical or legal rules to ensure its permanence" (GAGNEBIN, 2020a(GAGNEBIN, , p. 1943(GAGNEBIN, -1944)).

III
This passage, interwoven with Jewish references ("messianic reconciliation with the forces of nature") and materialist concepts (the category "realm of freedom," which seems to refer to the final pages of the third book of "The Capital", where Marx elaborates on communism) (MARX, 2017, p. 882-883), explicitly presents Gagnebin's reading hypothesis of Benjamin's antijuridicism -an antijuridicism also influenced by contact with antinomian currents in Jewish culture. 7This hypothesis goes against influential readings of Benjamin's work in the field of law.There will be a brief emphasis on the implications this has in legal theory and philosophy, although there are receptions of Benjamin's work that go in different directions in debates about the so-called "right to memory" (as an extension of the field of transitional justice) and criminology, with less impact on discussions about constitutional theory.
Derrida's lectures compiled in the book "Force of Law: The 'Mystical Foundation of Authority'" are important in bringing Benjamin's essay on the critique of violence to a relatively broader audience during the 1990s and 2000s.Before this, although commented upon by important figures in 20th-century philosophy such as Marcuse, the connections made in the text with the "final solution," which is also present in the postscript of the book -something that Seligmann Silva identifies as an "unjust and hasty criticism" (SELIGMANN-SILVA, 2007, p. 224).
Derrida, while recognizing a certain antijuridic dimension of some categories in Benjamin's essay (DERRIDA, 2007, p.128), suggests different paths from Gagnebin (and in a certain sense, from Benjamin himself).By indicating that the German term "Gewalt" can mean both violence and legitimate authority, Derrida's question in the text revolves around the possibility and impossibility of distinguishing legitimate power from original violence (DERRIDA, 2007, p. 10).The author seeks to establish a theory of justice based on the experience of aporia, a full experience of which is impossible since aporia is something that cannot be fully experienced.The possibility of justice is thus established alongside its impossibility of full experience.With law being an element of calculation and justice of the incalculable, justice "requires that the incalculable be calculated" (p.27) to establish in this aporia the improbable possibility of justice.
In this process, Derrida develops a theory of decision-making, envisioning its impact on the concrete figure of the judge.According to Derrida, "for a decision to be just and responsible, it is necessary that, in its own moment, if there is one, to be both regulated and without rules, conserving the law yet sufficiently destructive or suspensive of the law to must reinvent it for each case" (p.44).This decision, marked by paradox, is always faced with the indecisive, perpetually precarious.The indecisive places the possibility of decision before what is strange and heterogeneous to the calculation of the rule, which must nevertheless be made, thus "submitting to the impossible decision, taking law and rule into account" (p.46).This aporetic indecisiveness is also faced with the urgency of decision that interrupts legal deliberation and thus decides with its risks and responsibilities.
reconstructing a theory based on a legitimate force [Kraft] of law that "points to a new and distinct law" (Fischer-Lescano, 2017, p.75).He argues that theories attempting to deny the violence/power present in law are weak and advocate for an understanding of law capable of reflecting on the relations between rationality and irrationality, reason and feeling, power and force in its everyday functioning (p.20).Fischer-Lescano emphasizes the importance of law understanding itself as the unity of the difference between legal force and validity: "Law must become sensitive to situations where legal force turns into violence, where it subjugates human forces and violently obstructs their development" (p.22-23).Drawing on Menke's reconstruction of tragedy in ancient Greece, he argues that "law must recognize its own tragedy" (p.50).Fischer-Lescano also sees, along with Menke, in the possibility of law reflecting on itself in an outrageous way, what points law towards reluctance against itself (p.120).According to Fischer-Lescano, "law must behave responsively to force in order to understand and modify the mechanism by which it represses it," making it possible to release a normative force that claims legitimacy for itself, even though it is faced with a perpetually constitutive paradox marked by the potential to become violence/power [Gewalt].
While various criticisms could be made of these theorizations, it is important to underline that these interpretations differ from the way Jeanne Marie Gagnebin reads Walter Benjamin's texts on law.A legitimate approach, which could certainly be adopted, would be to indicate how Gagnebin reads Benjamin's texts more closely, starting from the texts that address the legal problem.If the authors mentioned above seek to establish a bridge, albeit more subtle and reluctant in some cases, between law and justice, Gagnebin (GAGNEBIN, 2020a(GAGNEBIN, , p. 1935;;GAGNEBIN, 2020b;GAGNEBIN, 2021, p. 21-23) seems to stay closer to Benjamin to differentiate them more decisively.This differentiation permeates Benjamin's early writings, from a fragment from 1915-16 preserved by Scholem (SCHOLEM, 1995, p.401-402) of the critique of violence when Benjamin states "The critique of violence is the philosophy of its history" (Benjamin, 1986, p.174;Benjamin, 2011, p. 155;GS II, p. 202).

IV
Jeanne Marie Gagnebin is one of the interpreters responsible for a careful reconstruction of Walter Benjamin's critique of the modern concept of progress.This concept, which reached its peak in European 19th-century thought, is generally associated with an interpretation based on historical development towards a determined ideal end, in which the sphere of means is seen as a temporal moment on the path toward that end.The present is viewed as a moment of the progressive historical march that will be realized in the future, perceiving the current time as a stage.This conception results, for both Gagnebin and Benjamin, in a homogeneous and empty temporal model, established as a series of similar points in an indefinite flow (Gagnebin, 2018, p.64).
In law, these traits appear clearly in theories that speak of successive generations of rights (the first generation corresponding to civil and political rights, the second to social rights, the third to human and cultural rights, and so on, with as many classifications as "historical stages" on an established path) as an inexorable path of humanity.The endpoint of this projection is understood as the moment when human beings will reach the final stage of progress, marking the future realization of the normative ideal in a gradual and successive manner.This type of discourse that relies on the existence of a linear and immutable historical chain (the "progress") erases concrete historical conflicts, class, racial, and gender struggles, and the historical subject that materializes them.By understanding time in this way, this conception of history is oriented by perceptions that speak of a hypothetical continuous progress of 'clarity' and 'intelligence', where emancipation would occur according to the development of this march, which would gradually include actors until the idealized moment when this construction is guaranteed to all subjects.The present would be guaranteed as a sacrifice for the sake of an already established end (of history).In Jeanne Marie Gagnebin's critique, when we analyze time based on criteria of chronological succession, the resulting interpretation of history takes on the appearance of a causal relationship of necessity to be realized, expressing the tendency to naturalize the entire course (Gagnebin, 2009, p.96).In another text, the author states that beyond the theoretical limits highlighted by Benjamin machinery: here too, only the attempt to stop time can allow another history to emerge, a hope to be preserved instead of succumbing to the acceleration imposed by capitalist production.The general strike stops production, just as the clocks that revolutionaries shoot; it is the same gesture of interrupting time, breaking historical continuity.It is all the more difficult to be described and analyzed as traditional historical discourse relies not only on a trivial principle of causality but also on an idea of infinite and regular temporal continuity, an idea that, moreover, is the source of this lifeless notion of causality."(GAGNEBIN, 2009, p. 98).
However, this process of creating other possibilities for experimenting time is not without risks.It does not renounce practical and theoretical critique, both patient and urgent.As reminded by the author, it remains theoretically and politically committed to the "nameless" buried by the triumphant march of progress (GAGNEBIN, 2014, p. 75-95).
The search for silenced narratives (this was the title of a recent colloquium in Gagnebin's honor) should not forget the moment of action, of praxis in the urgency of the present time that is the time we have to fight against fascism.
In the 2018 preface to "Walter Benjamin: os cacos da história", the author problematizes certain melancholic and complacent interpretations that lose sight of the claim of urgency that permeates Benjamin's writings (GAGNEBIN, 2018, p.11).According to the philosopher, precautions are necessary to avoid turning Benjamin's work into a "cultural treasure" of purely scientific interest (GAGNEBIN, 2011, p. 286).In an interview, she expressed her concern to prevent Walter Benjamin's work from becoming a new cultural fetish.According to her, it is necessary "to preserve the questioning, unsettling, and subversive aspects of his thinking.All of his thinking fought against the fetishization of culture and writing" (GAGNEBIN, 2015). 13eanne Marie Gagnebin claims the radicality of the historical critique proposed by Benjamin, formulated based on an original confluence between Jewish theology and critical materialist tradition.She maintains a commitment to the emancipatory and radically transformative project that characterized the first generation of the Frankfurt School, a commitment that was forgotten by some influential readings in the field of law, which accuses the first generation of lacking normative and juridical foundations.
However, the issue lies in the different way these readings identify the problem when Within the limits of this article, I would like to provide a brief commentary on the essays about myth and the state of exception.Additionally, I would like to indicate, based on these texts and other moments of her work, that the way in which the author interprets Walter Benjamin's philosophy of history brings important elements to the task (still unfinished) of constructing a critical perception of law and, primarily, of the sociohistorical regime underlying it.It is based on this proposal that the article is divided into three parts.The first part is dedicated to the commentary on the two previously mentioned papers; the second part differentiates Gagnebin's reading from some influential interpretations of Walter Benjamin's work in the fields of theory and philosophy of law; lastly, I discuss how the Swiss-Brazilian philosopher's interpretation of Benjamin's texts on law is anchored in a more integrated reading of the historical critique proposed by the author.II Jeanne Marie Gagnebin begins the essay "Mito, Direito e Justiça em Walter Benjamin" by questioning the fragments gathered in the book "Dialectic of Enlightenment" by Theodor Adorno and Max Horkheimer.Recognizing the importance -and relevance -of this book for thinking about the past and the present, the author wonders about the influence of Walter Benjamin on this well-known work that marked philosophy and social theory in the 20th century.More specifically, the author starts with the hypothesis of Benjamin's reflections on myth being present in the "Dialectic of Enlightenment."At the same time, she also suggests a theoretical shift by seeing a greater influence of the Jewish tradition on Walter Benjamin's concept of myth than the Greek tradition, thus distinguishing from what Adorno and Horkheimer seem to suggest, especially in the first essay of the "Dialectic" when they discuss Homer's "Odyssey" as a starting point for investigating the presence of myth in modernity.
the relationship is one of opposition, not complementation" (GAGNEBIN, 2020b, p. 21).The violence articulated and administered by the law is a foundational component in establishing, maintaining, and organizing an unequal social order.Throughout the text, Benjamin ironically revisits a sentence by Anatole France to question the formal equality typical of the law, where it is asserted that the laws "equally prohibit the poor and the rich from sleeping under bridges."As Gagnebin observes, Benjamin plays with semantics to bring Recht (law) and Vorrecht (privilege) closer together in a passage of his essay, identifying in modern law the inheritance of prerogative Rev. Direito e Práx., Rio de Janeiro, Vol.14, N. 4, 2023, p. 2494-2515.Copyright © 2022 Rafael Vieira DOI: 10.1590/2179-8966/2022/63291i | ISSN: 2179-8966 According to Jeanne Marie Gagnebin, "it is already considered in here [in the 1921 essay], a question that borders on the definition of the state of exception, in which the State, feeling threatened, resorts to the establishment of a new form of violence"(GAGNEBIN, 2020b, p.21).5 This observation seems accurate, not because Benjamin had already read Schmitt, but because they were both operating within the same historical context.This context was marked by the use of Article 48 of the Weimar Constitution by the German Social Democratic Party (SPD) and the German ruling classes, which allowed for the suspension of a set of rights in situations deemed exceptional, as a response to the struggle of the proletariat.In 1920, the German proletariat defeated the far right that had attempted the Kapp Putsch 6 ; with the defeat of the coup forces, the proletariat collectively shaped an insurrectional movement, brutally repressed by the SPD government and the German bourgeoisie (LOUREIRO, 2005, p. 117 et seq), an issue that lies at the origin of the fragment "The Right to Use Violence" (BENJAMIN, 2020, p. 2090-Rev.Direito e Práx., Rio de Janeiro, Vol.14, N. 4, 2023, p. 2494-2515.Copyright © 2022 Rafael Vieira DOI: 10.1590/2179-8966/2022/63291i | ISSN: 2179-8966 2095; GS VI, p. 104-108) and the essay on Critique of Violence/Power.For Benjamin, asGagnebin affirms, "the power of the Rule of Law reveals itself as its secret power of exception" (GAGNEBIN, 2020b, p.29), at which point the indeterminacy between law and violence becomes clearly evident.The response to these problems proposed by Schmitt is to suspend the law to preserve it and thereby maintain order(SCHMITT, 2007).The same historical context generates a completely different response from Benjamin, who formulates the concept of deposition of law [Entsetzung des Rechts] (GS II, p. 202), expressing the possibility of a political action that breaks the dialectic between violence that establishes and conserves the law, inaugurating a new historical era.
, the texts between 1916-1922 commented by Gagnebin, reappears in the text on Karl Kraus, in the end of his essay on Kafka in 1934 and other moments.However, I will take a different direction, a detour, without ignoring this question, and ask about the basis of this difference in interpretation.In the hypothesis I propose in this text, this difference is grounded in the more integrated reading made by the Swiss-Brazilian philosopher of Benjamin's historical criticism, and this has repercussions on how she reads his writings on law.From this perspective, we can interpret, in my view, the enigmatic and central statement that opens the last paragraph Rev. Direito e Práx., Rio de Janeiro, Vol.14, N. 4, 2023, p. 2494-2515.Copyright © 2022 Rafael Vieira DOI: 10.1590/2179-8966/2022/63291i | ISSN: 2179-8966