In Discourses on Livy, Machiavelli exposes the ruse of Roman law. Numa, the true founder of Rome, “mistrusted his own authority, lest it should prove insufficient to enable him to introduce new and unaccustomed ordinances in Rome.” And so he claimed that the law came from the gods.
All law, Machiavelli argues, arises from a similar mystification. In One and Only Law, a study of Walter Benjamin, James Martel explains that Machiavelli’s unmasking of the origins of law raises questions about legitimacy: “Must we rely on such phantasms in order to have law at all? Can we ever come to trust our own right or ability to make law without such disguises? Would such law ever be authoritative?” (2).
Benjamin agrees with Machiavelli. Law is rooted in myth. And he follows Machiavelli in unmasking the trick. But he doesn’t think that this leaves us without the possibility of law. For Benjamin, “we are bound by law; God’s divine law applies to us even as we have no way of knowing what it is, nor do we have any access to the truth or justice that it speaks for.” In short, we are left to “legislate in the dark, even as we remain responsible for what we do” (2).
Machiavelli’s story shows the way. While unmasking the fraud of Numa’s legislation, he also shows that it’s possible for law to be effective in the absence of a “Big Other” to back it up (3).
Benjamin doesn’t advocate for a law rooted in lies. He instead contends that this is what most regimes actually are. They are “archist” polities in which “the majority of subjects are not involved in their own self-determination, in which authority is produced via dictate or by representation as opposed to direct participation.” Such systems are doomed by Machiavelli’s unmasking: “No such archist polity could exist or perpetuate itself with the full knowledge that its laws are based on nothing but the local and contingent decisions of a single person or a group of people” (3).
For Benjamin, the Second Word “forbids fetishism or false representation, not only of God but of any other thing on, in, or under the earth.” It thus throws down the gauntlet to the phantasmagoria: “we can safely obey the Second Commandment without (much) fear of fetishism insofar as this law is itself oriented against fetishism in all forms. By obeying this commandment, we cease to obey the laws that normally render us complicit with the phantasmagoria.” The “anarchy” that results is what Benjamin calls communism, “a set of legal and political practices that resists the recourse to myth and fetishism,” a system that “accepts that it has no access to truth, to divine or natural law. Instead, it is based on local, specific, and contingent practices” (4).
Benjamin thus advocates law that is self-aware of its own contingency, law aware that it is foundering in the dark.