Besides their skepticism about universal reason and universal morality, the Frankfurt Schools of Critical Systems Theory and Critical Theory share basic assumptions: (1) the thinking in societal-systemic, institutional concepts, which transcend simple reciprocal relations by dint of their complexity; (2) the assumption that society is based on fundamental paradoxes, antagonisms, antinomies; (3) the strategy to conceptualize justice as a contingent and transcendental formula; (4) the form of immanent (and not morality-based, external) critique as an attitude of transcendence; (5) the aim (...) of societal (and not only political) emancipation in an ‘association of free individuals’ (Marx). The article focuses on those parallels and aims to conceptualize a critical turn-around of autopoietic systems theory. (shrink)

The article takes critiques of the entanglement of law with violence as a point of departure for exploring the possibility of a ‘tertium of law’. It thereby seeks to overcome the dichotomous basic assumptions that see law as always oscillating between an apology for violence on the one hand, and a utopia of reason on the other. The text analyses the possibility of this ‘tertium’, a ‘legal force’ beyond legal violence and legal reason, in four steps, drawing on the work (...) of Jacques Derrida and authors of the first generation of the Frankfurt School, in particular on Theodor Adorno and Walter Benjamin. It argues that in a first step law needs to be dissociated from the State. The violence of law, however, does not stem solely from law’s ties with State power. Law itself is violent even where it is not State law. The second step of legal critique thus needs to consist in the commemoration of legal violence, followed by a third that demands the transformation of violence to force. These three instances of critique are the precondition for a last and essential step according to which a critique of law must facilitate the transcendence of legal violence by taking law and its promise of justice at its word in order to turn this promise against law itself. (shrink)

Understanding the relationship of law and violence is one of the most important tasks for a postmodern critical legal theory. In his recent book Recht und Gewalt Christoph Menke explores the thesis that violence is not something external to law but an essential part of its constitution. While his concise analysis reveals the fundamental conflict of autonomy and societal responsivity of law, I suggest that we have to radicalize his concept in three ways. First, I propose to reconsider the belief (...) that law requires a polity . Second, I will argue that reflexivity of law needs to be conceived of as a process of fundamental democratization of law . Third, I propose that we not only need to depotentiate and displace the law, but that we have to transcend the law . For only transcending the law enables us to appeal to the utopian notion of a justice to come. (shrink)