A Time for Justice? Toward a Materialist Jurisprudence

Christopher TomlinsAmerican Bar Foundation, Chicago

Justice is destructive in opposing the constructive ambiguities of law

Walter Benjamin, Karl Kraus

In the late 1970s, Morton Horwitz’s Transformation of American Law1 set many

hares running. Prominent among them was a debate whether or not Transformation was

“Marxist” scholarship.

The debate was triangular – one corner anti-Marxist, one Marxist and one post-

Marxist. The anti-Marxist corner spoke at first obliquely, at least in published reviews.

John Phillip Reid came closest in denouncing Transformation’s “conspiratorial

materialism.”2 As it became clear during the 1980s and 1990s that Transformation had

exerted significant influence on American legal history, the anti-Marxist corner became

more explicit.3 But whether reacting at the moment of Transformation’s appearance or

later, the anti-Marxist corner reflected an intellectual world formed long before the book.

As such it constituted Transformation’s fore-history.

© Christopher Tomlins, American Bar Foundation 1 November 2008. Do not cite, reproduce or circulate in any form or medium of any kind without prior express permission of author.1 (Cambridge, Mass, 1977). [Hereinafter Transformation]2 John Phillip Reid, “A Plot too Doctrinaire,” Texas Law Review 55 (1977), 1321. In “Confessions of a Rogue Legal Historian: Killing the Fathers and Finding the Future of the Law’s Past,” Benchmark, 4, 3 (1990), 218, Stephen Presser noted Transformation was “perceived as Marxist” by many scholars but named none.3 E.g. Thomas C. Mackey, “Heart-Felt Equity?” H-Law (April 1998), available at http://www.h-net.org/reviews/showrev.php?id=1892 (accessed 1 September 2008).

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The Marxist corner, though not uncritical of Transformation, was overall

celebratory.4 Without agreeing whether Transformation was itself Marxist scholarship,

Marxist historians took its main arguments to indicate that a sophisticated Marxist legal

historiography was approaching realization. Their great expectations constituted

Transformation’s present.

The post-Marxist corner was also favorably disposed but found claims that

Transformation was (or foreshadowed) Marxist scholarship nonsensical. Post-Marxists

believed the much-anticipated Marxist moment had passed – its analytic structure

doomed by inherent conceptual contradictions. The future belonged to “the intellectual

history of the rise and fall of paradigm structures of legal thought,” causation to “shift[s]

in the direction of political winds.”5 Here lay the book’s after-history.

Two corners in the debate were competing for the book – and for its author.

Clearly, the post-Marxist corner won. Certainly Transformation’s author was convinced.

Though it is unclear whether Horwitz considered Transformation as a work of Marxist

work at the time he wrote it (it seems to me unlikely),6 by the early 1980s he, along with

the vast majority of CLS adherents, had repudiated “covering law” theorizations of social

change of any stripe.7

4 E.g. Wythe Holt, “Morton Horwitz and the Transformation of American Legal History,” William & Mary Law Review, 23 (1982), 663-723.5 E.g. Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review, 36 (1984), 97. 6 It certainly seems unlikely Horwitz ever regarded himself as an orthodox Marxist (although see Eben Moglen, “The Transformation of Morton Horwitz,” Columbia Law Review, 93, 4 (May, 1993), 1044). John Henry Schlegel, “Notes Toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies,” Stanford Law Review, 36 (1984), 402-03, calls Horwitz an exponent of a “limited version of the socioeconomic determinism of legal ideas.”7 Morton Horwitz, “Mark Tushnet, Legal Historian,” Georgetown Law Journal, 90 (2001), 131, 134-5 (Between 1977 and 1983, CLS came to the position that there was nothing “left to save in Marxism as methodology”).

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My purpose here is not to rake over Transformation’s intellectual history, or its

author’s. What interests me is the thirty-year retreat from Marxist legal historiography

that followed and what possibilities exist for renewal. Specifically, I will discuss the

potential for a new materialist trajectory informed by the work of the German Jewish

literary critic and historian, Walter Benjamin (1892-1940). By conjoining an original and

experimental Marxism with a lifelong dedication to metaphysics, Benjamin bred a

conception of historical materialism quite distinct from that which bedeviled orthodox

Marxism, turning on conceptual innovations one simply does not encounter elsewhere.

As important, substantive attention to the antinomies of law and justice is actually a key

thread in Benjamin’s conception of history and of revolution.

To see in Benjamin a chance to awaken a Marxist historiography of law is to

reach once more for that remarkable moment in the 1920s and 1930s suspended between

the dogmas of the second international and the all-consuming disasters of the third. The

critical Marxism of the Frankfurt school attracted intense interest for half a century for

exactly this reason. It was “there at the beginning” of CLS itself. With Benjamin,

however, we head for a more distant quarter. Benjamin had associations with the

Frankfurt school but his work is quite distinct. In comparison with his experimental

Marxism, the Frankfurt school’s Mediationstheorie can appear dogmatic and defensive.8

Marxist historiography of law disintegrated in the 1980s because it proved unable

to resolve the base/superstructure dilemma. Any newly constructed Marxist

historiography must remedy that problem. The appeal in the attempt lies in the

possibility that it can enliven our current historiography of law and justice. CLS 8 Martin Jay, The Dialectical Imagination: A History of the Frankfurt School and the Institute of Social Research, 1923-1950 (Boston, 1973), 197-212; “Exchange with Adorno,” in Howard Eiland and Michael W. Jennings, series editors, Walter Benjamin: Selected Writings (Cambridge, Mass.: 2003), IV, 99-115. [Hereinafter SW].

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abandoned determinate causation for complex causation, which – in the shape of the

indeterminacy thesis – degenerated into complexity for itself. Complexity, now

fetishized as such across many scholarly disciplines, has paralyzed generalizing inquiry.

Benjamin offers routes for escape – not by returning to determinate causation but by

identifying new configurations for history to explore. The first is not causation but that

by which causation claims to make sense, namely time. The second is what we all

profess to seek, which is justice.

1. Base and Superstructure

Orthodox Marxism’s embrace of a causal relationship between society’s “base”

(economic structure) and its political/juridical “superstructure” was the undoing of 1980s

Marxist legal historiography. Orthodoxy accorded economic phenomena determinative

capacities, classifying other social phenomena – state, law, politics and forms of social

consciousness – as derivative, reducible ultimately to “ideology.” In fact, Karl Korsch

years ago insisted that in Capital Marx had not posited an abstract causal relationship

between economic base and its manifestations: “the same economic basis by innumerable

different empirical circumstances … may appear in an unlimited range of variations.”

The base could be discovered (because it was hidden) only “by an analysis of those given

empirical circumstances.” Necessitarian conceptions of economic causality were not

immanent in Marxism.9 Simultaneously, Korsch criticized as “the sociological tendency”

an equally one-sided but opposite counterpart to economistic materialism that “strove to

supplant the basic importance of the production-relations for all political, legal,

ideological phenomena occurring in a given socio-economic formation by a ‘co-

9 Karl Korsch, Karl Marx (New York, 1963), 214-29, (quoting at 220 from Capital, III, ch. 47, ii)

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ordination’ of the ‘interactions’ going to and fro between the various departments of

social life, and, ultimately by a ‘universal interdependence of all social spheres’.” In

these hands, historical materialism ceased to entail “investigating all facts of history from

the point of view of their specific relation to material production” and became no more

than “a general empirical and positivistic method.”10

Korsch was attempting – obviously unsuccessfully – to steer Marxism away from

the two tendencies that would successively dominate its twentieth century development.

If economistic materialism was the orthodox Scylla that would reduce all superstructural

phenomena to afterthoughts, the sociological tendency was the Charybdis that would

eventually declare superstructure’s complete autonomy. Between them, underpinning the

moment of 1970s promise, lay the “relative autonomy” formulation developed under the

auspices of Althusserian structuralism.11 But to its critics, law’s relative autonomy was

“a concept without a theory,” no answer to Marxism’s basic problem:

If the economy determines in the last instance and the autonomy is relative at that instance at least – however one interprets the expression – the causal relationship between the economy and the superstructure remains mechanical. The reverse side would emphasize the autonomy, in which case … the theory would not qualify as Marxist, and liberal legal theory, sociology, and politics would have no great quarrel with it.12

Precisely this outcome had been foreshadowed in E.P. Thompson’s famous claim

that law possessed of “its own characteristics, its own independent history and logic of

evolution” could not be assimilated to anything outside itself. “Simply …law” embodied

the promise if not always the actuality of justice. It was as such “a cultural achievement

10 Korsch, ibid., 218.11 On which see Bob Jessop, “On Recent Marxist Theories of Law, the State, and Juridico-Political Ideology,” International Journal of the Sociology of Law, 8 (1980), 341-3, 351-61.12 Costas Douzinas and Ronnie Warrington, “Domination, Exploitation, and Suffering: Marxism and the Opening of Closed Systems,” American Bar Foundation Research Journal, 11 (1986), 812-13.

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of universal significance … an unqualified human good.”13 In a commentary published

the same year as Transformation, Horwitz endorsed Thompson’s discovery of law’s

autonomy, though not the sentiments accompanying it. Law restrained power, but also

prevented power's “benevolent exercise.” Law created formal equality, but also

promoted substantive inequality through radical separation of “law from politics, means

from ends, processes from outcomes.” Law promoted procedural justice but was equally

open to manipulation by elites, and ratified “an adversarial, competitive, and atomistic

conception of human relations.”14 Horwitz did not say why “law” did any of these things,

but the answer was implicit in his acknowledgement of law’s autonomy and insistence on

the centrality of legal doctrine to legal history. Then just emerging, CLS stressed

struggle within the juridical field over the meaning of the rules it produced. The meaning

was, they insisted, political. Law was politics. CLS adherents shrugged off whatever

influence Marxism’s stress on relations of production might once have had on them to

pursue the claim that law shifted according to “shift[s] in the direction of political

winds.” This became legal history’s new “critical” frame.

2. Indeterminacy

Critical Legal History (CLH)’s primary emphasis lay on law’s indeterminacy as

such, pursued through doctrinal history whose objective became to “take dominant legal

ideologies at their own estimation and try to see how their components are assembled.”15

13 E.P. Thompson, Whigs and Hunters: Origins of the Black Act (Harmondsworth, England: 1975), 260, 265-66 14 Morton J. Horwitz, “The Rule of Law: An Unqualified Human Good?” Yale Law Journal, 86 (1977), 566.15 Robert W. Gordon, “The Past as Authority and as Social Critic: Stabilizing and Destabilizing Functions of History in Legal Argument,” in Terrence J. McDonald, ed., The Historic Turn in the Human Sciences (Ann Arbor, 1996), 360.

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Not incidentally, this removed legal history from the socio-legal domain that had

nurtured the Marxist tendency to terrain far more familiar to CLH’s mostly law school-

based adherents. Proponents occasionally acknowledged limitations. Critical doctrinal

history’s refusal to engage in meaningful empirical research outside the “case law and

treatise literature produced by the high mandarins of the legal system” cut it off from

“field-level uses of law” where a very different perspective on “indeterminacy” might be

found. But the outcome was actually de-emphasis of the field level, a preference for

investigation of elite legal consciousness and the constructions of mandarin legality to the

“the grimy details” of how power was actually attained and used.16

Other limitations were more consequential. In exposing law’s indeterminacy,

historicist deconstruction of doctrine suggested the wider conclusion that there were no

“necessary consequences of the adoption of [any] given regime of rules.” Ideally this

would “make the present seem . . . more amenable to reimagination and change.”

Unfortunately, a strategy that used historicist research to demonstrate the plasticity of all

forms of legality could hardly produce a credible recommendation for a prescriptively

superior legal regime worth fighting for. CLH necessarily undermined any standpoint

that might stir an audience to attempt purposeful alteration of the present order of

things.17

In the late 1990s, perhaps because it had created a legal historiography too

narrowly focused on doctrine and too corrosive of the politics it desired to promote,

“critical legal history” underwent reinvention as “critical historicism.” Critical

historicism declared legal historiography wide open: “any approach to the past that

16 Gordon, “Critical Legal Histories,” 120, 124-25; Gordon, “The Past as Authority,” 360.17 Gordon “Critical Legal Histories,” 125; “The Past as Authority,” 365.

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produces disturbances in the field … inverts or scrambles familiar narratives … advances

rival perspectives (such as that of the losers rather than the winners) . . . or that posits

alternative trajectories that might have produced a very different present” was welcome.18

Clearly a Marxist historiography could cross so generous a threshold. But to establish

real influence it would have to be a Marxism that had abandoned the “cozy but

superficial security of closed concepts and fixed identities … internal homogeneities and

external mediations” of its past.19 This is the point at which we are ready to encounter

Walter Benjamin.

3. Benjamin’s Marxism

Walter Benjamin’s Marxism arose from the conjunction of three life

circumstances: a political radicalism manifested early in his life and on display

throughout (by the later 1920s Benjamin identified himself as a communist); personal

relationships, most importantly with Bertolt Brecht; and the research he undertook for his

unfinished history of nineteenth century Paris, The Arcades Project, which consumed

him from the late 1920s until his death. The latter in particular led him to read widely in

Marx and Engels’ works and to pursue commentary, notably that of Karl Korsch whom

we have already encountered.

Among Benjamin’s notes on Korsch, one finds the following:

Doctrine of the superstructure, according to Korsch: “Neither ‘dialectical causality’ in its philosophic definition, nor scientific ‘causality’ supplemented by ‘interactions,’ is sufficient to determine the particular kinds of connections and relations existing between the economic ‘base’ and the juridical and political ‘superstructure … ,’

18 Robert W. Gordon, “Foreword: The Arrival of Critical Historicism,” Stanford Law Review, 49 (1997), 102419 Douzinas and Warrington, “Domination, Exploitation, and Suffering,” 814.

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…“Twentieth century natural science has learned that the ‘causal’

relations which the researcher in a given field has to establish for that field cannot be defined in terms of a general concept or law of causality, but must be determined specifically for each separate field.

“The greater part of the results … obtained by Marx and Engels consist not in theoretical formulations of the new principle but in its specific applications.…

“Nor should we adhere too strictly to the words of Marx, who often used his terms only figuratively – as for instance in describing the connections under consideration here as a relation between ‘base’ and superstructure,’ as a ‘correspondence,’ and so on.”

In Korsch’s view, Marxist research should proceed not through theoretical

formulation but by application and testing; Marxist concepts were not “dogmatic fetters

… preestablished conditions which must be met in some particular order by any

‘materialist’ investigation” but “a wholly undogmatic guide to research and action.”20

Korsch’s views appealed to Benjamin precisely because his own conception of

base and superstructure was markedly undogmatic. To Benjamin the relationship was not

causal but “expressive” or “physiognomic.”21 For the architectonic metaphor of a

foundation determining the design of the structure erected above, physiognomics

substituted an exterior from which an interior might, indirectly, be apprehended. “It is

not the economic origins of culture that will be presented, but the expression of the

economy in its culture.”22 This did not mean Benjamin was uninterested in what he

called “economic facts.” Facts were where one began. Thus in the Arcades Project, “I

pursue the origins of the forms and mutations of the Paris arcades … and I locate this

origin in the economic facts.” But considered causally “these facts would not be primal 20 Walter Benjamin, The Arcades Project (Cambridge, Mass.: 1999), 484 [N17]. [Hereinafter AP]21 Rolf Tiedemann, “Dialectics at a Standstill: Approaches to the Passagen-Werk,” in AP, 929-45, at 939-40.22 AP, 460 [N1a,6].

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phenomena; they become such only insofar as in their own individual development …

they give rise to the whole series of the arcades’ concrete historical forms, just as the leaf

unfolds from itself all the riches of the empirical world of plants.”23

Benjamin’s friend and Frankfurt School adherent Theodor Adorno criticized

Benjamin’s indifference to mediation – the School’s signal contribution to Marxism –

accusing him of employing “isolated and obvious features from the realm of the base” in

an “unmediated or even causal relationship with corresponding features of the

superstructure.”24 This was to substitute “facticity” for theory. “It omits the mediation

by the total societal process … it attributes to materialist enumeration powers of

illumination which are reserved solely to theoretical interpretation and never to

pragmatic pointing.”25 Adorno blamed Benjamin’s abstention from theorizing in part on

naïveté, in part on the malign influence of Brecht, whom Adorno disliked.26 Certainly,

what interested Brecht as Marxist and author was the unmediated situation – unmediated,

in his case, by the mechanics and special effects of a theatrical apparatus that rendered

audiences willing accomplices of dramatic performance. And this was what interested

Benjamin in Brecht. Brecht had “[fallen] back on the most primitive elements of the

theater. He contented himself, by and large, with a podium. He dispensed with wide-

ranging plots.” Here was the concept of “epic theater” which interrupted plots rather than

sucking audiences into them. Epic theater moved “jerkily, like the images of a film strip.

It basically operates through repeated shocks … creat[ing] intervals which undermine the

audience’s illusion; these intervals are reserved for the audience’s critical judgments, its 23 AP, 462 [N2a,4].24 SW IV, 431.25 SW IV, 102 [emphasis supplied]. 26 See e.g. “Exchange with Adorno,” SW IV, 205; Gershom Scholem, Walter Benjamin: The Story of a Friendship (New York, 2003), 249-50; Jay, The Dialectical Imagination, 201-02.

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moments of reflection.”27

Brecht’s epic theater and Benjamin’s historical method were interrelated. The

method of The Arcades Project was “literary montage. I needn’t say anything. Merely

show.” Montage made the practice of history graphic, concrete and imagistic. Montage

was to “assemble large-scale constructions out of the smallest and most precisely cut

components.… to discover in the analysis of the small individual moment the crystal of

the total event.” Like epic theater, montage was “dialectics at a standstill.” 28

At the heart of montage as method lay collection, and its counterpoint, allegory.

Montage began with “the things of the world” and with the condition in which they exist

– dispersed, confused, scattered. The historian as collector struggles against confusion,

“bringing together what belongs together; by keeping in mind their affinities and their

succession in time, he can eventually furnish information about his objects.” But the

historian must also be allegorist, for the collector’s collection could never be complete,

and as long as it was incomplete it would remain “a patchwork.” For the allegorist,

things have always been a patchwork. Hence, the historian as allegorist ceases attempts

to harvest information about things from their properties and relations, their alleged

affinities. Instead he “dislodges things from their context and … relies on his profundity

to illuminate their meaning.” For the allegorist, objects represent “keywords in a secret

dictionary, which will make known their meanings only to the initiated.”29

As Rolf Tiedemann points out in his description of Benjamin’s “materialist

physiognomics,” ideas were not aloof from the material (residing in the relations the

27 SW II, 777-8 (“The Author as Producer”); SW III, 330-31 (“The Land Where the Proletariat May Not Be Mentioned”); SW IV, 302-09.28 AP, 460 [N1a,8], 462-3 [N 2, 6]. See also SW IV, 265-7 (“The Work of Art in the Age of its Technological Reproducibility”).29 AP, 211 [H4a,1].

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collector perceived, as in Adorno’s emphasis on “theory”) but in it, waiting to be brought

out. Thus materialist physiognomics “proceeds from the tangible object; inductively it

commences in the realm of the intuitive” (the allegorical).30 The ideas were in the

material for Benjamin because his basic concept of the world of material – things,

objects, economic facts – was metaphysical, centered on Leibniz’s Monadology.

“Monad” meant a “simple substance,” without parts and indivisible – the fundamental

existing thing. Monad was much more than another term for “atom.” Atoms are simple,

uniform and homogenous, the smallest unit of extension out of which all larger

(extended) things are composed. Monads are non-extended and individually distinct.

Monads might enter into composites but each was complete in itself, “a complete

concept.” Each contained “within itself all the predicates of the subject of which it is the

concept.” Each exhibited properties in its present state, but that present state was also

“pregnant” with its own future and contained the “trace” of its preceding state. Each,

then, enfolded within itself all its properties and history.31 Economic facts, we have seen,

did not “cause” the Paris arcades. Rather, in the course of their own development they

gave rise to all the historical forms that the arcades took “just as the leaf unfolds from

itself all the riches of the empirical world of plants.”32

Allegory was the means to unfold the monad’s properties, and hence provided the

key to Benjamin’s historical materialism. Jointly, allegory, monad and history answered

Adorno’s accusation of “facticity”:

30 Tiedemann, “Dialectics at a Standstill,” in AP, 940.31 See, generally, Nicholas Rescher, G.W. Leibniz’s Monadology (Pittsburgh, Pa, 1991) §§2-3; Douglas Burnham, “Gottfried Wilhelm Leibniz (1646-1716): Metaphysics,” at http://www.iep.utm.edu/l/leib-met.htm#top (visited September 2008). My description of monads in this paragraph relies heavily on Burnham.32 AP, 462 [N2a,4].

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The appearance of self-contained facticity … is dispelled according to the degree to which the object is constructed in historical perspective. The lines of perspective in this construction, receding to the vanishing point, converge in our own historical experience. In this way the object is constituted as a monad. In the monad, the textual detail which was frozen in a mythical rigidity comes alive.33

Unlike the pure collector, who brought together what belonged together so that

information might emerge from their relations, the materialist proceeded dialectically,

constructing the object of contemplation at the point where the lines converged – at the

point of “our own historical experience” – where it “comes alive.” The object was not

enlivened by the relationalities within which it allegedly belonged (the relationalities of

its time) but allegorically by the Sprung (compression, telescoping, fold) of time that

creates it in constellation with the present.34 Thus the arcades might originate in the

economic facts of their time but only the present establishes causes.35 Here was a

synchronicity not of objects in time – embedded in how it really had been (or would be) –

but of objects with time, the precise unfolding of their fore- and after-history now.36 The

point is made in Benjamin’s essay on Eduard Fuchs:

[A]ny consideration of history worthy of being called dialectical … [requires the researcher] to abandon the calm, contemplative attitude toward his object in order to become conscious of the critical constellation in which precisely this fragment of the past finds itself with precisely this present.37

Historicism presented the past as “eternal image,” historical materialism as “a given

experience” – the past in the experience of now.

33 SW IV, 108 (“Exchange with Adorno”).34 See Irving Wohlfarth, “Smashing the Kaleidoscope: Walter Benjamin’s Critique of Cultural History,” in Michael P. Steinberg, Walter Benjamin and the Demands of History (Ithaca, NY, 1996), 192-3.35 SW IV, 108 (“Exchange with Adorno”), and see SW IV, 405 (“Paralipomena to ‘On the Concept of History’.”)36 AP, 857 [Oº, 5].37 SW, III 262 (“Eduard Fuchs, Collector and Historian.”)

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Every present is determined by those images which are synchronic with it: every now is the moment of a specific recognition … It isn’t that the past casts its light on the present or the present casts its light on the past; rather an image is that in which the past and the present moment flash into a constellation. In other words, image is dialectic at a standstill.38

Benjamin’s dialectics were devoted not to theoretical mediation of the relation of

base to superstructure at a given moment, but to history – “the thread of [allegorical]

expression” in the collector’s patchwork that created images by conjoining moments.

Marx may have “lay[ed] bare the existence of a causal connection between economy and

culture,” but the relationship at any given moment was no more than a correlation.

Though immanently perceptible, that is, economic process might only actually be

perceived historically, in the image (constellation) formed in the conjunction of the past

with the standpoint of the observer now. And even then, the intrastructure (the economy)

might only be known physiognomically, through observation of its exterior – its culture,

“the manifestations of life in the arcades.”39 What promise does Benjamin’s long step into

history hold for a Marxist historiography of law?

4. Benjamin, Law, Justice

At the end of the first volume of Marx and Engels’ unfinished German Ideology

one encounters fragmentary notes for the remainder, among which appears “There is no

history of politics, law, science, etc., of art, religion, etc.”40 Benjamin recorded the

observation, and his essay on Fuchs took up Engels’ later elaboration of it – the

“semblance of an independent history of state constitutions, of legal systems, and of

ideological conceptions in each specialized field of study,” each posing as a “closed 38 AP, 463 [N3,1]. 39 AP, 460 [N1a,6].40 Karl Marx, Friedrich Engels, The German Ideology (Moscow, 1964), 101-2

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unity” as if containing within itself its own conditions of existence and growth. But did

exposure of history’s spurious heterogeneity herald its replacement by a materialist

commonality as The German Ideology appeared to propose? Not in Benjamin’s

discourse. The closed unity of each discipline was grounded on historicism’s “eternal

image of the past,” stable and unalterable. The challenge of the dialectical historian was

precisely to that historicist homogeneity, not to establish in its place a supervening and

dogmatic materialist homogeneity but rather to open fissures in historicism:

Works of art teach … how their function outlives their creator and how the artist’s intentions are left behind. They demonstrate how the reception of a work by its contemporaries is part of the effect that the work of art has on us today.... [T]his effect depends on an encounter not only with the work of art alone but with the history which has allowed the work to come down to our own age.”41

The dialectical historian “challenged the unity of art itself.” He dealt in history

not as a unified sequence but as a crowd of specificities – “the specific epoch, the specific

life, the specific work.” By blasting each object out of the historicist’s continuum – “the

epoch out its reified ‘historical continuity’ … the life out of the epoch … the work out of

the lifework” – each became instead “a given experience with the past,” unique and

unrepeatable, that destroyed historicism’s eternal image. Simultaneously, the dialectic

construction of the historical process meant the sublation (aufhebung) of each – “the

lifework in the work … the epoch in the lifework … the course of history in the epoch.”42

Specificities blasted out of historicism’s continuum fell into distinct historical

conjunctures (constellations) that the dialectical historian fashioned from “the numbered

group of threads representing the woof of a past fed into the warp of the present.”

41 SW, III 261, 262 (“Eduard Fuchs”); AP, 470 [N7a,2].42 SW III, 262. (Aufhebung means preservation and transformation of a term or concept in dialectical interplay with another term or concept).

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Threads did not express causal continuities. “For centuries threads can become lost, only

to be picked up again by the present course of history.” Threads, rather, expressed

moments of encounter between historian and object. The encounter integrated the

object’s fore-history and after-history. “It is by virtue of their after-history that their fore-

history is recognizable as involved in a continuous process of change.”43

The dialectical character of the exercise underlined that it was not one of

reflective intellection.44 Thus Benjamin’s essay “Literary History and the Study of

Literature” concludes, “It is not a question of presenting written works in the context of

their time, but of bringing forth the time which recognizes them – that is our time –

within the time that produced them. With that literature becomes an organon of history

(Geschichte), and to make it so, not the material for writing history (Historie) is the task

of literary history.”45 Benjamin’s materialist conception of history does not homogenize

history’s objects; it is rather a strategy for understanding them in their variety as means to

construct a present knowledge.

Just as on these terms there could clearly be a materialist conception of literary

history, of art history and so forth, so there could be a materialist legal history. In

constructing it one might appropriate the conceptual form of Benjamin’s critical

excursions in those genres about which he wrote frequently, but one may also be guided

by specific writings. Benjamin did not write as extensively about law as literature or art,

but law – specifically the dialectic of law and justice – remains one of the thickest threads

of expression running throughout his corpus. It is visible in early unpublished work that

43 SW III, 261, 269; AP, 470 [N7a,1].44 See AP, 470 [N7,6]. I discuss reflective intellection in Christopher Tomlins, “The Strait Gate: The Past, History, and Legal Scholarship,” Law, Culture and the Humanities (forthcoming, 2009).45 SW II, 459-65. Here, however, I use Brook Thomas’s translation of this crucial passage – see his The New Historicism and Other Old-fashioned Topics (Princeton, 1991), 175-6 – for its conceptual clarity.

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dwells on myth and the balance between “the orders of gods and men” from which

emerges “the fundamental formal law” that is the subject of Benjamin’s best-known

published commentary on law and justice, “Critique of Violence.”46 At the end of his

life, justice is again Benjamin’s subject in his Theses On the Concept of History, in which

the climactic revolutionary constellation of fore-history and after-history

“interpenetrated” by the present makes its appearance in the form of “the Messiah [who]

comes not only as the redeemer [but] as victor over the Antichrist.” That revolutionary

moment, when the past of “redeemed mankind” becomes “citable in all its moments,” is

The Last Judgment.47 Intervening works maintain the thread.

(a) “Karl Kraus” (1931)

The law/justice antinomy is a major theme in Benjamin’s essay on Karl Kraus,

editor and sole writer of the Viennese satirical journal Die Fackel [The Torch]. A

preparatory fragment calls Kraus’s unending war on the Viennese press “halachic,”

wholly “acted out within the realm of law.”48 The essay itself is written in counterpoint

to Critique. Kraus litigates disputes in the Viennese courts, simultaneously presiding in

Die Fackel as a distinct lawgiver – “a sovereign over time, place and mode of the

setting.” He moves back and forth, such that “trial[s] … adjourned in court, continue[] in

Die Fackel.” Alongside law’s simulacrum of authority, Kraus in Die Fackel literally

embodies authority, uniting standard and substance, abolishing division, legislating and

executing – “an entire legal system in the first person.”49 Kraus becomes “demonic …

46 SW I, 25 (“Two Poems by Friedrich Hölderlin”), 236-52 (“Critique of Violence”); Scholem, Walter Benjamin, 40.47 SW IV, 390, 391 (“On the Concept of History”).48 SW II, 194-5 (“Karl Kraus”)49 Cornelia Vismann, “Two Critics of Law: Benjamin and Kraus,” Cardozo Law Review, 26 (2005), 1160

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the accuser eternally calling for justice.”50 He “peers into the interior” of the legal

process and discovers “the violation, the martyrdom of words.” And so he “accuses the

law.” He has “seen through” it. “His charge: high treason of the law against justice.”51

Cornelia Vismann observes, critically, that “a juridical authority, which does not

heed any law but rather constitutes it by executing it,” can certainly be “a match for the

existing legal order.… The satirist as sovereign is above those who want to judge him.”52

Yet ultimately Benjamin finds in the figure of Kraus neither sovereign nor prophetic

symbol of a new age of totalized law. He finds, rather, a besieged complainant on the

threshold of the Last Judgment:

Just as, in the most opulent examples of Baroque altar painting, saints hard-pressed against the frame extend defensive hands toward the breathtakingly foreshortened extremities of the angels, the blessed, and the damned floating before them, so the whole of world history presses in on Kraus in the extremities of a single item of local news, a single phrase…. Kraus is no historic type. He does not stand on the threshold of a new age. If he ever turns his back on creation, if he breaks off in lamentation, it is only to file a complaint at the Last Judgment.53

(b) “Critique of Violence” (1921)

The Last Judgment is a key image in Benjamin’s thread. It appears first, though

indirectly, in “Critique of Violence.” In largest part Critique addresses and refutes the

claim that legal theory has successfully demarcated a right to coerce in order to create,

preserve or restore good order (justice). “Law’s concern with justice is only apparent …

in truth the law is concerned with self-preservation.” Law is made by violence and

50 SW II, 194. Benjamin compares Kraus to Michael Kohlhaas, who in Heinrich von Kleist’s story of the same name seeks justice in vain and is eventually hanged for his efforts. The story has immense resonance throughout Benjamin’s law/justice thread. See also SW II, 68 (“The Idea of a Mystery”). 51 SW II, 440, 44452 Vismann, “Two Critics,” 1163. 53 SW II, 443.

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preserved by violence. “[L]awmaking 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.” Violence begins law and completes it. As a modality of rule law is

extortion.54

But no remedy for human problems, no “deliverance from the confines of all the

world-historical conditions of existence obtaining hitherto,” is possible “if violence is

totally excluded in principle.” What forms of violence might be acceptable? Violence

“envisaged by legal theory” was already implicated in the making and preserving of law.

So too was the prehistoric, mythic violence that the gods visited upon humanity, for it

was precisely in mythic violence that law’s point of origin (entry into history) lay. The

gods detected a guilt already fated; their violence established the law for the punishment

of that guilt. Only a purifying divine violence instantiated deliverance. Divine violence

strikes “without warning, without threat, and does not stop short of annihilation. But in

annihilating it also expiates.” Mythic violence “was bloody power over mere life for its

own sake,” divine violence “pure power over all life for the sake of the living.” Mythic

violence “demands sacrifice;” divine violence “accepts it.”55

Divine violence created a fissure in the continuing catastrophe, “a vantage point

beyond the ambiguity of law.”56 Critique held that revolutionary violence, “the highest

manifestation of unalloyed violence by man,” might open the same fissure, that the final

54 SW I, 231-4 (“The Right to Use Force”), 239, 248 (“Critique of Violence”). 55 SW I, 247, 248, 249-50. 56 Vismann, “Two Critics,” 1165. For Vismann’s critique of Critique’s move beyond law, see 1164-5. For the concepts of catastrophe and fissure, see e.g. SW IV, 164, 184-5 (“Central Park”).

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uprising of the proletariat for itself and for no other, was immune from censure, and that

“on the suspension of law” in revolution, “a new historical epoch is founded.”57

(c) “Franz Kafka” (1934)

Critique framed every subsequent reference to law and to its fissure, the point

beyond the ambiguity of law that recurred in the image of the Last Judgment. We have

seen it immanent in Benjamin’s commentary on Kraus. We encounter it again, somewhat

distinctly, in his commentary on Kafka.

In the world of Der Prozeβ (The Trial) “The courts … have lawbooks at their

disposal, but people are not allowed to see them.” Here, says Benjamin, the mythic, the

prehistoric (where “laws and definite norms remain unwritten,” where “a man can

transgress … without suspecting” but where transgression “in the sense of the law” is

never accidental but fated) jut into law. “Written law [was] one of the first victories

scored over this world,” but in Kafka “the written law is contained in lawbooks that are

secret.”58

Kafka’s secretive legal system festers in dirt and trash. Nothing is ever

completed.59 Nor does Kafka seem interested in completion – not in the sense of

Critique’s eventual finality of justice. “In the mirror which the prehistoric world held up

to him in the form of guilt, he merely saw the future emerging in the form of judgment.

Kafka, however, did not say what it was like. Was it the Last Judgment? Doesn’t it turn

the judge into the defendant? Isn’t the trial the punishment? Kafka gave no answer.”60

57 SW I, 251-2. (Critique is in part a sympathetic commentary on Georges Sorel’s Reflections on Violence (T.E. Hulme and J. Roth trans. 1950), which exalted the sublime violence of the proletarian general strike 58 SW II, 796-7 (“Franz Kafka: On the Tenth Anniversary of his Death”).59 Ibid. 796. 60 Ibid. 807.

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Did he hint? In the micro-story, “A New Advocate,” the Bar is ready to admit

Bucephalus, once the war-horse of Alexander the Great. Alexander is no more; no one

knows any longer where to find the gates of India. Dr. Bucephalus has immersed himself

in law books. “Free, his flanks unconstrained by the grip of his rider, in the still light of

the lamp, far from the din of the battle of Issus, he reads and turns the pages of our

ancient books.”61 He reads. The story has been called a critique of myth, written from

the standpoint of justice. But how is it, asks Benjamin, that law “could be invoked

against myth in the name of justice?” Something new is that Dr. Bucephalus reads law,

he does not practice. “The law which is studied but no longer practiced” is Kafka’s

opening to justice, Benjamin muses. “The gate to justice is study.”62

d. “Brecht’s Threepenny Novel” (1935)

Benjamin gives law and justice (and Critique) a distinct signification in his

commentary upon Brecht’s Threepenny Novel. “Bourgeois legality and crime … are, by

the rules of the crime novel, opposites.” Brecht’s crime novel is different. It “depicts the

actual relation between bourgeois legality and crime. The latter is shown to be a special

case of exploitation sanctioned by the former,” fulfilling Critique’s characterization of

law as extortion.63 Threepenny Novel also reproduces Critique’s concluding “flash up” of

justice, for it ends (almost) in an uprising of the oppressed dreamed by a destitute cripple,

George Fewkoombey. Uprising culminates in a Day of Judgment, “the greatest

arraignment of all times,” that would judge “the living … the dead … all who had in any

61 Franz Kafka, “The New Advocate,” in The Transformation and Other Stories: Works Published During Kafka's Lifetime, by Franz Kafka, trans. Malcolm Pasley (London, 1992), 154-5.62 SW II, 815.63 SW III, 8-9 (“Brecht’s Threepenny Novel”). In the novel the role of “preserver of the legal order” is performed as a struggle between crime gangs, whose eventual “gentleman’s agreement” becomes “legal sanction for the distribution of the spoils.” 201

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way wronged the poor and defenceless.” It would last hundreds of years. Fewkoombey

is the judge.64

But the moment passes. The dreamer wakes. The time of law begins anew.

Fewkoombey is arrested, condemned, hung.

Fewkoombey’s dream tribunal recalls Athena in Eumenides: “I will establish … a

tribunal, a tribunal for all time.” Aeschylus, says David Luban, means this “to stand for

the beginning of the system of justice.”65 But really it stands for the beginning of law.

And in the awakening-end of Fewkoombey’s dream, his arrest and execution, Brecht

annihilates the possibility of a relationship between justice and law. Benjamin approves:

the oppressed will not be rescued merely by dreams of fissures. The question is the

knowledge one possesses at the moment of awakening, the knowledge one brings to bear

on the materiality that presents itself on waking up.66

Fewkoombey also references Kraus. Both stand on the threshold of the Last

Judgment “hard-pressed against the frame.” But Fewkoombey is “a new face.” He does

not “extend defensive hands” against extremity. He is “a lifesize figure pointing into the

picture” at “the bourgeois criminal society in the middle ground.” Though it seems this

society has the last word by hanging Fewkoombey, instead it has awoken him, and in that

waking moment he “has understood how ancient is the crime to which he and his kind

fall victim.”67

64 Bertolt Brecht, ThreePenny Novel (New York, 1956), 384. 65 David Luban, Legal Modernism (Ann Arbor, 1994), 301. 66 AP, 458 [N1,9], 464 [N4,3[, [N4,4]. See also SW II, 237-47 (“On the Image of Proust”).67 SW III, 6.

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In Threepenny Novel, as in the essays on Kraus and Kafka, justice is not done.68

In each Benjamin seems to search for a means to hold Critique’s fissure open. During

the 1930s Benjamin worked out that means in The Arcades Project. There he developed

a conception of historical materialism that could sustain Messianic justice. Materialism

and justice then meet in the climactic Theses On the Concept of History.

5. Awakening from the Dream of the Nineteenth Century

Benjamin’s 1939 prospectus for The Arcades Project described its subject as “an

illusion expressed by Schopenhauer … to seize the essence of history it suffices to

compare Herodotus and the morning newspaper.” The illusion expressed “the feeling of

vertigo characteristic of the nineteenth century’s conception of history” (historicism),

which represented the course of the world as “an endless series of facts congealed in the

form of things,” from which it produced “the ‘History of Civilization’ … an inventory,

point by point, of humanity’s life forms and creations … identified for all time.”69

What form might law take in a vertiginous world of things? One thinks

irresistibly of Montesquieu: “Laws, taken in the broadest meaning, are the necessary

relations deriving from the nature of things.”70 Law indexes civilization’s inventory.

Some years ago John Comaroff generously lent Montesquieu a distinct and

contemporary resonance. Inasmuch as relations always entail multiple representations,

subjectivities and realities “they are by their very nature, the perpetual object of

construction and contestation.” Inasmuch as laws are relations, “it follows that they, too, 68 All three offer variations on Kohlhaas (see above n. 50).69 AP, 14.70 Montesquieu, The Spirit of the Laws, trans. Anne M. Cohler et al. (Cambridge, 1989), 3.

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are perennial sites of struggle.” So too “are the social institutions, the economic

practices, the cultural forms that rest upon them.” Montesquieu had anticipated our

“postfunctionalist, poststructuralist, post-Marxist” intellectual world.” An invocation of

Janus as presiding deity of that world guided Comaroff’s reading. “The Law” was Janus-

faced – constraining and enabling, promising freedom and potentiating bondage. “Legal

structures and sensibilities” were “everywhere polymorphous.” Janus was god of

complexity.71

The 1939 prospectus had its epigraphic Janus too, courtesy of Maxime Du Camp

(1822-94), historian of Paris. “History is like Janus; it has two faces.” But, Du Camp

dryly added, “Whether it looks at the past or at the present, it sees the same things.”72 In

its relation to Benjamin’s allegorical dialectic, the accent of the epigraph is distinct from

our more contemporary version. Angelus Novus sees but one unending catastrophe.73 So

too, I suspect, the accent of law in historicism’s vertiginous world is not that of a

postmodern Montesquieu. Montesquieu located the spirit of the laws in the relations

among things – material things, human things, law’s own things – but laws derived from

the nature of things, they did not establish that nature. They were established on the

order of things, they did not establish that order.74

The Arcades Project was to have been a history of Paris told precisely as an

assemblage of things. From the things themselves it would have established their order.

This is what Benjamin’s metaphysical materialism meant. It was a historical

materialism, told explicitly against the grain of the vertiginous history in which 71 John L. Comaroff, “Foreword,” in Mindie Lazarus-Black and Susan F. Hirsch, eds., Contested States: Law, Hegemony and Resistance (New York, 1994), ix-x.72 AP, 14.73 SW IV, 392 (“On the Concept of History,” ix).74 Montesquieu, Spirit, 9.

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civilization’s riches had simply accumulated: “such riches owe not only their existence

but also their transmission to a constant effort of society.” It was also to have been a

history of the grain – of the vertiginous order of things itself and how it came to be.75

Specifically it would “show how, as a consequence of this reifying representation

of civilization, the new forms of behavior and the new economically and technologically

based creations that we owe to the nineteenth century” manifest themselves “not only in a

theoretical manner, by an ideological transposition, but also in the immediacy of their

perceptible presence” as phantasmagorias. Phantasmagoria references optical “magic

lantern” exhibitions which conjured preternatural phenomena using artificial light,

producing an experience akin to dream. Phantasmagoria had been part of The Arcades

Project’s representation of nineteenth century materiality from early on: “dialectical

fairyland” was the first working title. Paris was “dream city”; the century was “dream

time.” Typically, Benjamin used the term to reference both signification and fact. Hence

phantasmagoria references the “dreaming collective” of the city’s people but also the

unmediated actuality of the space and time in which it dreamed and worked.76

It is tempting to make law the optic of phantasmagoria. Has it not been the work

of the constitutive tendency of the past quarter-century to render law the means by which

relations among things are constructed (equivalent or substitute for critical Marxism’s

Mediationstheorie?77 But though law was perhaps phantasmagoria’s enforcer, it did not

furnish the optics. The phantasmagorical order of things was “perceptible.” It required

no mediation.

75 AP, 14.76 AP, 14, 388-96 [K1,1 – K3,5], 669 [X13a]77 See e.g. Robert W. Gordon, “New Developments in Legal Theory,” in David Kairys, ed., The Politics of Law: A Progressive Critique (New York, 1982), 287-92.

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History furnished the optics – two in fact: the vertiginous history of

Schopenhauer’s illusion; and the materialist history of The Arcades Project. The latter’s

purpose was both to account for the order of things that made the historicist dream of the

nineteenth century seem true, and simultaneously “awaken[ ] the world from its dream

about itself.”78 The Arcades Project followed the dreaming collective “so as to expound

the nineteenth century – in fashion and advertising, in building and politics – as the

outcome of its dream visions.” But then would come “the drastic … experience, which

refutes everything ‘gradual’ about becoming and shows all seeming ‘development’ to be

dialectical reversal,” the awakening that suddenly experiences the past as dream and the

present “as waking world.” This revolution in historical perception was against

historicism’s “fixed point … found in ‘what has been’,” to which the present had secured

its knowledge. “Now this relation is to be overturned.”79

The question remained whether or not the world would indeed awaken from its

dream about itself. The exposé seemed set to end pessimistically (it was, after all, 1939).

Benjamin describes the great nineteenth century revolutionary, Louis-Auguste Blanqui, at

the end of his life, imprisoned in the fortress of Taureau, his last words “resignation

without hope.” The century’s inventions had brought no new social order, no awakening.

The world had dreamed what would be – phantasmagoria, which is to say modernity.

“The hour of our apparitions is fixed forever,” wrote Blanqui, “and always brings us back

to the very same ones.”80

But Benjamin was not Blanqui. At the very worst moment of the twentieth

century, Benjamin’s own last words – the Theses – express neither resignation nor 78 AP, 456 (epigraph)79 AP, 388-89 [K1,1 – K1,4]80 AP, 25-6.

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hopelessness. Blanqui’s eversame resides in the Theses, but alongside a fierce

anticipation of a Messianic justice instantiated in the awareness of “revolutionary classes

at their moment of action … that they are about to make the continuum of history

explode.”81

6. On the Concept of History

We have seen that Benjamin’s historical materialism was a materialism not of

architectonic but temporal relations, its method allegory instantiated in constellation or

the folding of time, an idea developed in the course of Benjamin’s multifaceted

intellectual encounter with Leibniz. In his translator’s foreword to Gilles Deleuze’s

famous disquisition upon Leibniz, The Fold, Tom Conley calls Leibniz “the first great

philosopher of the pleat, of curves and twisting surfaces.” Constellation relies precisely

on folds and pleats: time wound back on itself in the way life is lived and recalled.82

In the Theses, “articulating the past historically does not mean recognizing it ‘the

way it really was.’ It means appropriating a memory as it flashes up in a moment of

danger,” at “the moment if its recognizability.”83 Constellation expresses this “flashing

up” of the past and makes of its recognition a means to countermand historicism’s eternal

image. It is central to Benjamin’s conception of revolution, as three extracts from the

Theses illustrate:

(1) History is the subject of a construction whose site is not homogeneous,

81 SW IV, 395 (XV), 389-400 (“On the Concept of History”). And see Alex Callinicos, Making History: Agency, Structure and Change in Social Theory (Leiden, 2004), 208 (the Theses “an intransigent …affirmation of the revolutionary potential of the working class”). 82 Gilles Deleuze, The Fold: Leibniz and the Baroque, trans. Tom Conley (Minneapolis, 1993), xi. And see Henri Bergson, Time and Free Will, an Essay on the Immediate Data of Consciousness (New York, 1910), 75-139; SW II, 237-47 (“Image of Proust”), IV, 314-16 (“On some Motifs in Baudelaire”).83 SW IV, 390 (V), 391 (VI).

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empty time, but time filled by now-time [Jetztzeit].

(2) No state of affairs having causal significance is for that very reason historical. It becomes historical posthumously, as it were, through events that may be separated from it by thousands of years. The historian who proceeds from this consideration ceases to tell the sequence of events like the beads of a rosary. He grasps the constellation into which his own era has entered … with a very specific earlier one.

(3) What characterizes revolutionary classes at their moment of action is the awareness that they are about to make the continuum of history explode.

So understood, the present moment ceases to be merely an allotted moment of transition

to the next, and so on ad infinitum, but always potentially a moment of action, of time out

of joint – “a messianic arrest of happening … a revolutionary chance in the fight for the

oppressed past.”84

Interruption – cessation – is central to Benjamin’s materialism. “The historical

materialist cannot do without the notion of a present which is not a transition, but in

which time takes a stand [einsteht] and has come to a standstill.” It is as such central to

the possibility of a materialist jurisprudence. We have met Benjamin’s “angel of history”

who contemplates “one single catastrophe.” The angel “would like to stay, awaken the

dead, and make whole what has been smashed,” but is caught in a storm that propels him

into the future “while the pile of debris before him grows toward the sky.” The storm,

observes Benjamin, is called progress. Justice – awakening the dead; making whole what

has been smashed – is realized in cessation.85

Critique told us that cessation lay in the pure violence of God, but that the purest

manifestation of human violence – revolution – also had a claim. The Theses revive the

84 Ibid. 395 (XIV, XV), 396 (XVII) 397 (A). 85 Ibid., 392 (IX), 396 (IX).

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images and confirm their interpenetration: it was on the image of a messianic cessation

that Benjamin founded the final tie between the essence of revolution and the idea of

absolute justice. To achieve the tie Benjamin jerked the profane temporality of

materialism into the realm of sacred time. But he did not leave it there. He knew that

“from the standpoint of history” the oppressed had only “the order of the profane” in

which to struggle. The City of God was not the goal, but the end.86 Yet precisely because

the City of God was the end and not the goal, the potential of messianic cessation was

ever present. The possibility of reaching beyond the profane – beyond “progress,” – to

the strait gate of absolute justice was Benjamin’s conception of revolution. A historical

materialism free of the temporality of “progress” was the means of its realization, the

mediations of the profane simply a surrender to disabling, unending progress and its law.

The Theses, consequently, address how the oppressed might use history to stop history,

“blast open the continuum” to find the strait gate – the fissure in the catastrophe through

which the messiah might enter.87

Finale – A Materialist Jurisprudence

Wai Chee Dimock’s Residues of Justice calls the modern ideal of justice

conceptually axiomatic – “self-evident both in its ethical primacy and in its jurisdictional

scope.” It turns on a premise of commensurability embodied in “the legal mediation of

human relations” according to an ideal of “objective adequation”: punishments that fit

crimes, compensations that comport with injuries, benefits that meet needs. Dimock

argues the characterization extends to Marxist conceptions of justice.

86 SW III, 305-6 (“Theological-Political Fragment”).87 SW IV, 397 (B). See also 402 (“Paralipomena”).

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Justice in Marx, I want to suggest, is both presumed and rendered moot by that presumption. Its imperfect enactment in history is guaranteed to be rectifiable in time … by a social whole whose eventual materialization is the very promise of its materialism. The concept of the ‘whole,’ in other words, is both the operative premise and the inferential endpoint for Marx.

But the modern ideal leaves “residues unsubsumed and unresolved by any order of the

commensurate.” It cannot achieve completion. In place of an unrealizable completeness,

Dimock seeks an image of justice “both less and more than the dream of objective

adequation … less out of forbearance, and more out of hope.”88

Here I have canvassed the possibility of a materialist jurisprudence that does not

presume justice, or treat it as an effect of progressive time, or offer mechanistic causal

guarantees of its realization. Locating it through and in the work of Walter Benjamin, I

have argued his materialism produces an image of the possibility of justice – “a tiny

fissure in the continuous catastrophe” – with something of the difference that Dimock

seeks: neither axiomatic nor commensurable, that responds to residues and that expresses

hope.

Benjamin’s justice reaches over the endless contingency that Dimock

contemplates. Like Marx, Benjamin had an endpoint, though not one envisaged

prospectively, as in social democracy’s promise of “liberated grandchildren.” Rather,

justice lay in Messianic cessation, where humanity awoke from the temporality of

progress and justice was done in the name of “enslaved ancestors.” Still, “nothing that is

historical can relate itself, from its own ground, to anything messianic.” From the

standpoint of history, that is, “the secular order” was where struggle would occur and its

unresolved residues accumulate.89

88 Wai Chee Dimock, Residues of Justice: Literature, Law, Philosophy (Berkeley, 1996), 1-5, 9-10, 5889 SW IV, 394 (XII); SW III, 305 (“Theological-Political Fragment”).

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Marianne Constable has argued that today justice seems entirely residual – it “lies

in an ambiguous silence behind the statements of rules of modern legal systems.”

Benjamin understood silence. The essay on Kraus dwells on Kraus’s attempts to expose

law’s prattle. Constable finds a similar “cacophony” in law’s contemporary incarnation

as sociolegal positivism, which “relegates connections between law and justice, if any, to

empirically contingent social realities”; which presumes that law is “humanly articulable

power,” a human creation “describable in sociological terms”; and which “postulates the

completeness of positive law as law” and the completeness of law as social.90

Marxist theories of law have played their part in that cacophony; they exhibit the

same tendency “to grasp, to conceive, to master, to posit, ‘to be ever itching to mingle

with, plunge into other people and other things.”91 Benjamin’s materialist

physiognomics, in contrast, deals with the surfaces of things. His dialectic at a standstill

gives profound point to the actual look of things, a frame frozen for inspection. As such,

Benjamin’s historical materialism suggests means to develop a new Marxist

historiography of law without hazarding a new plunge into mediating theory. And in

holding on to the chance for cessation Benjamin’s materialism also holds open the fissure

in the catastrophe that grants us access to the possibility of justice. Perhaps that is why at

the end of the Theses, at the end of his life, Benjamin continues to wait and hope. “For

every second of time [is] the strait gate through which the Messiah might enter.”92

90 Marianne Constable, Just Silences: The Limits and Possibilities of Modern Law (Princeton, 2005), 10, 132, 176.91 Ibid. 175.92 Walter Benjamin, “Theses on the Philosophy of History,” in Illuminations: Essays and Reflections, ed. Hannah Arendt (New York, 1969), 264. for an alternative translation, see SW IV, 397 (B).

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