Uma "força justa e não violenta"? Uma crítica do direito na sociedade global

Abstract

The article takes critiques of the entanglement of law with violence as a point of departure for exploring the possibility of a tertium of Thereby, it seeks to overcome the dichotomous basic assumptions that see law as always oscillating between an apology for violence on the one hand, and an utopia of reason on the other. The text analyses the possibility of this tertium, a 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.