“Before the Law” or Before the Other: Rethinking the “Paradox of Sovereignty” in Light of Lévinas’s Torah of Life

After having thoroughly commented on Kafka’s parable “Before the Law,” in which a man from the country has spent his entire life attempting to gain access to the Law (whose inaccessibility is paradoxically represented by an open door), Agamben writes in Homo Sacer that “the task that our time imposes on thinking cannot simply consist in recognizing the extreme and insuperable form of law as being in force without significance” (1998, 59). For Derrida, Kafka’s parable demonstrates that the Law is not only an ensemble of interdictions but also a “prohibited place” (i.e., an inaccessible place) (1992, 203). However, for Agamben, to confine oneself to a reading of the Law’s inaccessibility amounts to a repetition of what he calls the “paradox of sovereignty”; that is, the Law can only be founded through that which it excludes, and thus it remains “without significance.” What is excluded from the Law is also that which allows for the establishment of the state of exception, where individuals are left without rights in a state that, from their perspective, then acquires a limitless power. One can thus understand the importance Agamben sees in the need to “[move] out of the paradox of sovereignty toward a politics freed from every ban” (59). For Agamben, it is a matter of not remaining inert before the violence of the Law, which, far from simply being some guarantor of security for individuals—as it might be from a Hobbesian perspective—on the contrary can always, by virtue of what founds it, from the moment a “state of exception” is declared, take advantage of their abandonment outside of the Law and outside of the protection that the Law should reasonably guarantee. But in what way does “[moving] out of the paradox of sovereignty” constitute “the task [of] our time,” as Agamben seems to claim? Doesn’t the messianic certainty that the hour has finally arrived presuppose an idea of progress or at least of a possible surpassing? What allows him to predicate the time as “ours,” that an end has come, and that “our time” is auspicious to welcome such an event? If Agamben’s eschatology is one that takes aim at the “the complete consummation of the Law,” then can we be witnesses in the time of this task to which Agamben summons us (56)? Doesn’t the claim to go beyond the violence of the Law itself harbor the greatest violence, much as Derrida had already claimed in his reading of Lévinas’s Totality and Infinity? Is there no other escape from the Law’s violence besides the passive acceptance of its prohibition or the attempt to surpass it?

Lévinas’s work—in particular the “eschatology of peace” that he formulates in the preface to Totality and Infinity, though he only takes it up in relation to the problem of the Law in Otherwise than Being, or Beyond Essence—could allow us to sketch out an alternative to the difficulties one encounters with the “paradox of sovereignty.” Moreover, it is possible to read Otherwise than Being as a narrative that is the symmetrical opposite not of Kafka’s parable “Before the Law” but rather to the narrative that most directly reveals the violence of the Law, namely, “In the Penal Colony.” In this story, the Law’s violence—oddly recounted as something antiquated and, to that extent, as something that is already an object of curiosity—does not just lie in the “without significance” that is at the foundation of its reign, but rather in its identification with punishment and thus to its condemnation of death—as if, to take up one of Blanchot’s formulations, “before the Law,” we are also before “death itself wearing the face of the law” (1992, 24). Let’s briefly recall the outline of Kafka’s narrative. A stranger, invited to look into the...