Carl Schmitt agrega que "la autoridad desvela el hecho de que, para crear una ley, no es necesario poseer ese derecho". The state of exception takes place outside the legal system while emanating from the very same system, to which it never ceases to belong. According to Giorgio Agamben, exceptional measures have the contradictory character of "being legal measures which cannot be understood in the field of law; the state of exception appears as the legal form of what cannot have a legal form. Carl Schmitt adds that "authority highlights the fact that, to create law, it does not need to have the right to". Why precisely Benjamin? Furthermore, in this oracular work Benjamin anticipates topics and problems that are inextricably linked with topics and problems of our most immediate reality.
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Carl Schmitt agrega que "la autoridad desvela el hecho de que, para crear una ley, no es necesario poseer ese derecho". The state of exception takes place outside the legal system while emanating from the very same system, to which it never ceases to belong. According to Giorgio Agamben, exceptional measures have the contradictory character of "being legal measures which cannot be understood in the field of law; the state of exception appears as the legal form of what cannot have a legal form.
Carl Schmitt adds that "authority highlights the fact that, to create law, it does not need to have the right to". Why precisely Benjamin? Furthermore, in this oracular work Benjamin anticipates topics and problems that are inextricably linked with topics and problems of our most immediate reality.
That is why I will try to connect his reflections with at least one event that is currently happening: the exceptional situation that, in normative terms, is lived in the refugee camps.
These reflections are built upon a fragment of the aforementioned essay, perhaps the most complete synthesis of his thought.
We must attain to a conception of history that accords with this insight. Then we will clearly see that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against fascism 1. It is they, the oppressed in an absolute sense, defeated again and again by barbarism and unreason, who live in a state of permanent exception.
But who were the winners when Benjamin writes his theses? First of all, the alliance of the powerful Central European industry with fascists regimes 3. Indeed, the process of technical industrialization, which reaches its peak with the mass production of corpses in the gas chambers and death camps, not only preserves property relations, but does so through brute force die offene Gewalt 4. Second, legal power: the monopoly of administrated violence die verwaltetete Gewalt is in the hands of the Nobles of the Robe that dominate, master and control outside and beyond the law 5.
Because the left, in fighting fascism from a progressive position, had bitten the bullet: neither social democracy nor state communism understood that in order to stop the advance of the NSDAP "the lighted fuse must be cut" 6.
For Benjamin there was no doubt: fascism is not the atavistic residue of an archaic society mystified and mythicized, but the last stage of progress. Paradoxically, the ideology of progress is retro-progressive: the alliance between industry and legal doctrine causes an unparalleled social, juridical and moral setback. What to do in a situation in which any hint of organization of the oppressed seemed doomed to failure? In the first place, reality might not be falsified, that is, the oppressed ones should be aware of the military capacity of fascism.
This would have helped them to understand the problems related to their historical development as a class. In the second place, thus, the oppressed might know their place in history in order to recognize the hysteria that dominated everything. This would be the second unavoidable task that Benjamin proposed as a means to fight in better conditions against "the forces of darkness" 7 and to establish der wirkliche Ausnahmezustand — the real state of emergency —.
Is it possible to speak, not of a state, but of states of emergency? Many puzzles of Schmitt interpretation, including the so-called "Carl Schmitt Question" 8 , take this claim as a starting axiom: sovereign is he or she who decides any kind of severe economic or political disturbance that requires the application of extraordinary measures. A state of emergency need not have an existing order as a reference point because the violation of a law may be excused by necessity necessitas non habet legem.
Necessity exempts from law and justify individuals in doing, as a means to obtain their goals, what is forbidden thereby. Bodin conceived the concept of sovereignty as a supreme, perpetual, and indivisible power, marked by the ability to make law without the consent of any other 9.
The sovereign was the sole judge of divine and natural law; he or she could tax without consent in emergencies; and could decide that contracts were no longer operative when, in his or her view, a subject had ceased to benefit from them.
The Decree of the Reich President for the Protection of the People and the State, extended indefinitely in the Enabling Act of , represented the synthesis of that state of exception to which I refer in the first place: civil liberties were suspended by virtue of an arbitrary law that the sovereign, represented in the person of the chancellor, applied to his whim.
First, the historical subject is not represented by the sovereign, but by his antagonist. It is, in fact, the oppressed class in struggle who must rise up in order to subvert status quo. For Marx, the time of social revolution was the result of the conflict between the material productive forces of society and the existing relations of production within the framework of which they have operated hitherto Social conflict includes "the violent overthrow of the existing order of society by the oppressed class" The revolutionary self-liberation of the working class through its conscious action necessarily entailed a transformation of the economic-social processes of life.
Previously, however, the productive forces might be aware that in their struggle they fight not only against an external enemy, but above all against the devastating effects that the capitalist system of production has on their own class consciousness.
However, his reflections — due to the precise historical moment in which he writes his theses — did in fact differ from theirs. Just as the pendulum that measured the oscillations of the old seismographs has ceased to be useful, Benjamin suspects that the political arsenal of the left would need a strong dialectical counterweight.
It was urgent, on the one hand, to open up the semantic field of the subject of social transformation: it was that plural subject, indefinite and without qualities , it was the oppressed ones who had to become a class for themselves. And who belonged to the oppressed? Not only the proletariat 15 , but those who have been systematically stigmatized, the nameless and faceless people, the human waste which history is made of: from the Jewish people through the Spartacist League, right up to Blanqui, the martyrs of the Paris Commune or those who integrated the Zapatista uprising of the s.
On the other hand, Benjamin considered that the total subversion understood as a radical transformation of the economic-social process of life was not enough: a "historical apocatastasis" 16 is needed, a restoration of all things by whose logic the entire past is to be brought into the present.
Is there still a need, then, for a theory of history that allows the oppressed to subvert the status quo and unmask different ways of domination? Do we have a new incarnation of the oppressed in the refugees? Does international law impose a kind of state of emergency in the camps? After the tortuous experience of the short twentieth century, on the margins of the continent spreads fascist concentrationary regime. Global refugee numbers are at their highest: 22 million people crammed into camps where they are subjected to inhuman and unacceptable living conditions for survival This ghost population is deprived of fundamental rights such as the right to adequate housing, the right to work or freedom of residence and movement.
Indeed, in refugee camps, managed by sovereign humanitarian organizations mainly UNHCR, the controversial UN agency in charge of protecting refugees and those displaced by conflict, natural disasters and so on , a complex regulatory system has been implemented: the administration of the refugees depends on a normative regulation that in its legal form adopts dangerous exceptions. See for instance art. Plus, since international law does not represent a limit to the power exercised by humanitarian organizations, normative arbitrariness is embodied as real possibility of camps policy.
It is against the hegemony of this international legal regime that, from and with Benjamin, I want to give the fire alarm. In any case Kafka suggests, beyond Benjamin, a third hermeneutical path: iii a formal legal system in which the law stands above itself, not because of the will of a sovereign or State, but rather of the labyrinthine depths of bureaucracy.
An analysis of this proposition shows the following: Joseph K. The start of a court trial presupposes a anonymous allegation, b legal complaint, c successful application to the court and d initiation of administrative proceedings.
As Pascale Casanova emphasized, this is intended to humiliate him and to damage his reputation Nevertheless, proceedings are subsequently instituted against him and he is arrested. Contrary to what one might suppose, the arrest is neither followed by an administrative order, nor does it carry a prison sentence, nor does it even take place in an official agency. It is exceptional: he is arrested in his home and interrogated there.
The practice of the wilful false accusation shows justice instrumentalization and its arbitrariness, and can be traced back to the time of the ancient Rome. In imperial Rome, denunciations by informers were admitted and rewarded. According to Suetonius, at the time of Tiberius special rewards were voted for the prosecutors, the information of any person was taken, and all offences were capital. The informer, an anonymous agent, informed the magistrate of a crime by means of inscriptio The inquisitorial procedure was initiated either by prosecution before the court, or ex officio by the judge.
The first action taken by the inquisitors was that of appointing a delegate-commissary who thoroughly registered the domiciles of the accused and who, moreover, had the power to seize their goods and belongings. Thus, the indictment initiated the proceedings as such. It should be noted that any person could accuse another: it was enough to make the accusation before authorities taking as witness two persons who were "honest and religious" The denunciations were anonymous, and the defendants had no way of knowing the identities of their accusers.
There is one final parallel that I want to emphasize: the entire process was undertaken with the utmost secrecy, as much for the public as for the accused —tellingly, the accused were not informed about the accusations that were levied against them If, of your own volition, you changed something at the place you occupied, you would be cutting the ground from under your own feet and might well fall, whilst the great organism could easily find a replacement for the minor disruption at some other part—everything was interconnected—and remained unchanged, assuming it did not, as was in fact likely, become even more self-enclosed, even more vigilant, even more severe, even more malevolent Kafka emphasized through the lawyer Huld that in front of this huge organism one remains in suspense.
There are only two possibilities: on the one hand, to adapt oneself to law organs and to accept things as they are; on the other hand, to establish personal relations with high officials. There is absolutely nothing else that could be done?
Are submission and bribery the only two existing poles? Does not claim K. What actually happens is that K. In The Castle this idea is underlined by the county mayor:. The case is thus brought to an arbitrary, if usually quite correct, conclusion. The most astonishing thing about it, once again, is its autonomy aus sich selbst heraus.
This kind of organized totality shows, on the one hand, that the human pieces that make up its structure must conform to its designs; on the other hand, that the problem of infinity regression in law is unsolvable: the current legality is based on a theological legality that, in turn, refers to an unfathomable prehistoric legality. They refer to a prehistoric world over which a first triumph was written law. And while here written law is in the books of laws, yet secretly, and based on these, the prehistoric world exercises its dominion even more unlimitedly" Benjamin feels the laminar structure of the law in Kafka, a law devoid of centre, without starting point that allows us to specify where the general principles of law begin and end, namely, the general normative enunciations that, despite not having been formally integrated into particular legal systems, abstractly collect the content of the law itself as a whole and consolidate the development of a hierarchical and authoritarian bureaucratic apparatus.
Kafka stated that. It is an extremely painful thing, the narrator stressed, to be ruled by laws that one does not know. Notwithstanding, people suspected that this normative apparatus is articulated from a set of mysterious laws Schein-Gesetze that can only be presupposed. According to tradition, they exist and have been entrusted to the nobles in secret and must be kept that way.
Is secrecy an indication of the misleading content of the laws? Kafka finally reveals the enigma: codes and constitutions, laws and decrees are nothing but dead letter. Therefore, Kafka momentarily opens the door of hope to the oppressed whom Benjamin summons in anguish: there is a glimpse of the possibility of altering current law and democratizing justice.
However, the leaf of that door closes immediately due to the interconnection between law and nobility, two edges that are perhaps nothing more than segments of the same legal plane. Kafka presents a rambling administrative system organized according to a strict distribution of spheres of competence, regulated by rules that establish an apparently rational order in which written records guarantee the truth and where detailed regulation, rigidity and strict hierarchization of functions replace the direct and vertical domination of the sovereign.
In both cases, the functioning of the legal and administrative system rests on endless written work that reminds, once again, the Supreme Council of the Inquisition. And the gentleman buried himself in the files and began writing" Kafka saw the official writing as a register that allows to define magnitudes, to compute objects and beings and to quantify infinitesimal, namely: writing equals phenomena and facts, and phenomena, therefore, acquire the ontological status of realities as long as they are filed, identified, processed.
By whom? Initially by tireless officials who work around the clock. The mayor sums up the situation for K. This fact is the result of the will of a being who wants something to be a sign of something else.
Walter Benjamin - Aviso De Incendio (Em Portuguese do Brasil)
Reconocido historiador intelectual, de los movimientos culturales y de la llamada historia de las ideas, Dosse ha llevado a cabo estudios fundamentales sobre la historia de la historia. Tras estos lemas o consignas se encuentra siempre el mismo llamado a re-pensar la disciplina, a re-visitarla creativamente. Haber comprendido un texto es, por tanto, haberse apropiado de su significado. Los escritos de Walter Benjamin llaman a un acercamiento radicalmente distinto. El texto que ahora From Scientific Objectivity to the Postmodern Challenge. Evans History and Theory.
Sobre el concepto de historia
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Walter Benjamin : aviso de incendio : una lectura de las tesis "Sobre el concepto de historia"