Max Horkheimer on Law's Force of Resistance

Authors

  • Simon Gansinger Independent Research Group ‘Criminal Law Theory’, Max Planck Institute for the Study of Crime, Security and Law, Freiburg/Breisgau, Germany https://orcid.org/0000-0002-9666-9299

DOI:

https://doi.org/10.31273/eirj.v12i1.1696

Keywords:

Max Horkheimer, Frankfurt School, Dialectic of Enlightenment, critical legal theory, resistance, abortion rights

Abstract

The law maintains, rather than challenges, the powers that be – or so it is commonly thought. In ‘Rackets and Spirit,’ a little known and untranslated essay, Max Horkheimer complicates this notion by attributing to law a ‘force of resistance’. He contends that, under certain conditions, the legal process develops a logic of its own, one that can become disjointed from the rationale of power. In this Critical Reflection, I look closely at the paragraph in which Horkheimer introduces the notion of a ‘force of resistance’. I argue that Horkheimer develops a theme that he and Theodor W. Adorno return to in the Dialectic of Enlightenment: the spiritual instruments of domination, among them law, have the potential to turn against domination. At the same time, Horkheimer is clear that law does not resist automatically: it takes human agents to put the legal sphere into opposition to the political sphere. I illustrate this thought with respect to the recent history of federal abortion rights in the United States.

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Author Biography

  • Simon Gansinger, Independent Research Group ‘Criminal Law Theory’, Max Planck Institute for the Study of Crime, Security and Law, Freiburg/Breisgau, Germany

    In 2023–24, Simon was an IAS Early Career Fellow. In August 2024, he took up a postdoctoral fellowship at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg, Germany. 

Wooden mallet about to strike an egg

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Published

2024-10-31

Issue

Section

Critical Reflections