Barbarei im Recht
Das Ungedachte in Christoph Menkes Rechtskritik aus postkolonialer Perspektive
This article argues that the distinction between law and non-law implies a colonial structure. According to Christoph Menke, the difference between law and non-law is the fundamental, yet paradoxical distinction, by which law founds itself as a...
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This article argues that the distinction between law and non-law implies a colonial structure. According to Christoph Menke, the difference between law and non-law is the fundamental, yet paradoxical distinction, by which law founds itself as a normative order. It is paradoxical because the very foundation of law necessarily implies an act of violence. First, I reconstruct Menke’s critique of the violence within the law. Second, I connect Menke’s critique to the postcolonial discourse with the claim that the state of exception in the overseas colonies can be understood as a paradigmatic historical concretion of the violent logic of law. Third, I critique Menke’s approach with regard to its own colonial implications. Therefore, reflecting on Menke’s understanding that the distinction between law and non-law is the difference between norm and nature, I claim that the modern concept of nature implies a colonial dimension because it is intrinsically linked to the modern discourse about barbarism that evolved during the colonial era. Menke’s critique of law fails to acknowledge this implication. Thus, his approach needs to be decolonized with respect to the law’s fundamental concepts on a terminological level. The article develops the basic outline for such decolonization with particular regard to the notion of non-law understood as nature.
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Schillernde Gegenrechte
Eine begriffliche Topographie des neuen Rechts
This article is an attempt to examine Christoph Menke’s critical theory of modern bourgeois law through the lenses of analytic jurisprudence. We therefore scrutinize some core concepts from his Critique of Rights in order to gain a better...
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This article is an attempt to examine Christoph Menke’s critical theory of modern bourgeois law through the lenses of analytic jurisprudence. We therefore scrutinize some core concepts from his Critique of Rights in order to gain a better understanding of the so-called “new law” which is presented as a theoretical alternative to the allegedly defective law of ius proprium-rights [Eigenrechte]. In the first part, we sharpen Menke’s concept of normativity with a reason-based approach and by using the metaethical notions of formal and robust normativity. This sets the stage for analyzing his brand-new concept of counter-rights [Gegenrechte] in the second part. We identify a whole archipelago of meanings for it and group them by considering potential mereological relations between ius proprium-rights and counter-rights. Our mapping turns out to be fruitful in shedding new light on an already known dilemma for the concept of counter-rights. The final section delivers a sketch of the implementation challenge for counter-rights: How can we achieve a “new law”? We distinguish several conceptions of a corresponding utopia and criticize Menke for resorting to a construction that is based on a fiction.
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