Christoph Menke

The use of violence in law, the argument for its legitimacy says, constitutes an "unsurpassable limiting case"; it is at the disposal of law, whose internal organization is "symbolic" or normative, as a "symbiotic mechanism" that operates by action upon "physical-organic existence." The law to be discussed here is the law of tragedy; not just any sort of order guaranteed by a power that establishes a minimum of reliability of expectations, but the specific form of law engendered by the tragic labor of reflection. Oedipus issues the legal curse of autonomy only as a proxy, in his role as judge. Walter Benjamin offers an alternative to consent or rejection, instauration or destruction, an alternative he calls "relief of law". The dualism of bourgeois liberalism consists in confronting autonomous participation in the law and the right of free non-participation as mutually external registers.

The third generation of critical theorists affiliated with the Frankfurt School has now established legal theory as a central field of research, also with significant contributions from scholars whose primary training is in other fields. Postmodern legal theory will have to face up to the challenges of legal practice and broaden its reflections to take into account forms of lawmaking beyond the political community conceived in unitary terms. Only by integrating this possibility of transcendence will postmodern legal theory be able to carry forward the tradition of the first generation of critical theory with regard also to its demand for the realization of the ideal of emancipation and justice. The proletarian general strike, by contrast, is an expression of sovereign violence and, as such, breaks the cycle of violence, of calculation and counter-calculation, of success, concession, compromise, struggle, and so on.

According to Christoph Menke, there never was and never can be any law without violence. The reason for this dependency of law on violence lies in its need to be enforced; Menke follows Immanuel Kant's definition according to which law consists in a reciprocal authority to use coercion. Immanuel Kant's definition has been extremely influential, not only in legal and political philosophy, but also in public discourse and in our everyday understanding of law and legal matters. Over centuries, Jewish legal traditions have not only theoretically reflected, but also reliably practiced, a law without any recourse to state-sanctioned violence. Interestingly though, due to the conditions of the Diaspora, Jewish law cannot have recourse to any governmental apparatus of power by way of an enforcement agency. By introducing an argument concerning the strategy of social transformation, Menke leaves the terrain of legal philosophy in favor of a philosophy of history.

This essay examines how Joseph Beuys uses the social plastic concept (›soziale Plastik‹) to think about the relationship between art and democracy. To this end, the first part analyzes the oppositions that define this concept in order to read them as the basic determinations of a dialectical concept of democracy. Against this background, the second part of the essay deals with how Beuys understands the contribution of art to democracy. In doing so, Beuys’ statement ›Every man is an artist‹ is subjected to a new reading.

This book brings a new perspective—mainly out of German intellectual discussions rooted in Hegel—to bear on the problems of equality as discussed in Anglo-American conceptions of liberalism. Menke argues that the idea of equality is at the heart of political modernity. At the same time, political modernity is characterized by an attitude of critical reflection on the notion of equality in view of its consequences for the lives of individuals. This book explores the sources and legitimacy as well as the limitations and problems of this attitude toward equality in the work of such thinkers as Adorno, Habermas, Derrida, Hegel, Luhmann, Nietzsche, Rawls, and Schmitt. Looking at key texts in modern political philosophy, the author develops the claim that there is a basic and irreconcilable conflict in justice: between general demands of equality and attention to the individual. In a debate with contemporary Anglo-American liberal philosophy’s concepts of rights, the political process is thereby understood as an interminable strife and negotation between equality and individuality.

While in neo-Aristotelian conceptions of virtue and Bildung the concept of “second nature” describes the successful completion of human education, Hegel uses this term in order to analyze the irresolvably ambiguous, even conflictive nature of spirit. Spirit can only realize itself, in creating (1) a second nature as an order of freedom, by losing itself, in creating (2) a second nature—an order of externality, ruled by the unconscious automatisms of habit. In the second meaning of the term, “second nature” refers to spirit’s inversion of itself: the free enactment of spirit produces an objective, uncontrollable order; "second nature" is here a critical term. On the other hand, the very same inversion of free positing into objective existence is the moment of the success of ("absolute") spirit. The paper exposes this undecidable ambiguity of second nature and claims that its acceptance and development are the conditions of an adequate understanding of the constitution and forms of second nature.

Mientras que en las concepciones neoaristotélicas de la virtud y la Bildung el concepto de segunda naturaleza describe la culminación exitosa de la educación humana, Hegel utiliza este término para analizar la naturaleza irremediablemente ambigua, incluso conflictiva, del espíritu. El espíritu solo puede realizarse a sí mismo creando (1) una segunda naturaleza como orden de libertad, perdiéndose a sí mismo, o (2) una segunda naturaleza, es decir, un orden de exterioridad, regido por los automatismos inconscientes del hábito. En la segunda acepción del término, segunda naturaleza refiere a la inversión de sí mismo del espíritu. Por otro lado, la misma inversión de la libre posición en la existencia objetiva es el momento del éxito del espíritu (“absoluto”). El artículo expone esta ambigüedad indecidible de la segunda naturaleza y afirma que su aceptación y desarrollo son las condiciones de una comprensión adecuada de la constitución y las formas de la segunda naturaleza.