Max Horkheimer on Law's Force of Resistance
DOI:
https://doi.org/10.31273/eirj.v12i1.1696Keywords:
Max Horkheimer, Frankfurt School, Dialectic of Enlightenment, critical legal theory, resistance, abortion rightsAbstract
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.
Downloads
Downloads
Published
Issue
Section
License
Copyright (c) 2024 Simon Gansinger
This work is licensed under a Creative Commons Attribution 4.0 International License.
Authors who publish with this journal agree to the following terms:
Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed under a Creative Commons Attribution License (CC-BY), which permits use and redistribution of the work provided that the original author and source are credited, a link to the license is included, and an indication of changes which were made. Third-party users may not apply legal terms or technological measures to the published article which legally restrict others from doing anything the license permits.
If accepted for publication authors’ work will be made open access and distributed under a Creative Commons Attribution (CC-BY) license unless previously agreed with Exchanges’ Editor-in-Chief prior to submission.
Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the journal's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgement of its initial publication in this journal.
Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work. (see: The Effect of Open Access)