Rechtsphilosophie after the War

Abstract

What resources does philosophy have at its disposal for a critical analysis of the role of violence in a war of all against all? Faced with this question, Walter Benjamin discovers that legal positivism, which believes in the capacity to derive how law ought to be from the sheer concept of a “correct” law, is constitutively blind to the possibility that values may be misaligned with law, and that the basic structures of law and consensus might come after the fact of power. Drawing on the work of contemporaneous legal theorist Leonard Nelson, this article argues that Benjamin developed a potent critique of the dialectic of recognition at work in the legitimation of violence, making way instead for an analysis of what remains unrecognizable to the normative order: power, loitering as a “nonvalue” in the gap between values and legal ends.