WERNER HAMACHERexperienced the ruinous powers of the law system, draws a vivid picture of such a reversal
in his parodic novelMr. G. A. in X., published in Budapest in 1964. There, an older
woman explains the composition of the court:
‘‘Since the task of pronouncing law requires such great responsibility it is given to
unhappy people,... because they can identify with the accused at every moment. By
the end of the hearing they have changed to such an extent that it is impossible to
discern any difference between the judge and the accused.’’
‘‘That is exactly right,’’ said a man next to her, ‘‘I have seen more than one case
in which the accused was unable to console the prosecutor, who was sobbing loudly,
or the chief justice, who was writhing under the pains inflicted upon him by his
professional duty. The latter tends to faint and lose his consciousness under the stress
of any encouragement.’’...
‘‘But is it possible,’’ said the young man, blushing with excitement, ‘‘that courts
in other countries aren’t composed of prisoners?’’
‘‘It happens,’’ said G.A.
‘‘I can’t believe my ears,’’ cried the young man and covered his mouth with his
hand in shock.^2The possibility of declining to exercise one’s rights, the possibility of suspending or over-
turning the execution of a judgment, and the possibility of employing rights in such a
manner that they do justice to human beings and to language—all these possibilities are
not local limitations placed upon the validity of the judicial corpus and the procedures of
its application, but rather irreducible structural elements of right as a whole, by which it
is opened to a realm that is in principle extrajuridical. The sphere of law, much as it is
constituted to last, presupposes its own suspendability. This applies also to human rights,
in which the essence of man is defined for all times and for every individual instance.
Human rights declarations do not mention the possibility of declining the use of rights,
along with the determination of the ‘‘human’’ suggested by them. They do not declare—
and thus do not define as essential—that it is possible not to use the sphere of rights with
its legislative, judicial, and executive powers and thereby to further the cause of justice.
Instead, such a possibility remains merely implied. The joining together of rights and
their nonuse, the joining together of an essential possibility and the possibilitynotto
activate this possibility, the conclusion of rights and their suspension—this synthesis is
not declared, nor can it be declared or explained in a juridical manner. The difference
between the two introduces into each instance of right and to right itself the infinitekrisis
between the ‘‘human’’ as the substance of right and ‘‘humans,’’ whoever and however
they may be, as atranscendensof all essential determinations in the realm of law. This
difference, a nonsynthesis, cannot be formulated in the predicative-synthetic language of
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