Max Horkheimer on law's force of resistance

Exchanges: The Interdisciplinary Research Journal 12 (1):102-112 (2024)
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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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Simon Gansinger
Max Planck Institute for The Study of Crime, Security and Law

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Dialectic of enlightenment: philosophical fragments.Max Horkheimer - 2002 - Stanford, Calif.: Stanford University Press. Edited by Theodor W. Adorno & Gunzelin Schmid Noerr.
The End of Roe v. Wade.Mary Ziegler - 2022 - American Journal of Bioethics 22 (8):16-21.

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