THE RIGHT NOT TO USE RIGHTSjudgment and can only be foreclosed by the judicial powers guided by it at the cost of
justice and the probity of language.
A short fable by Walter Benjamin concerning the philosophy of law responds to this
difference. It is probably the first note that he wrote after reading Kafka’s works and was
intended to serve as preparation for a longer essay on them. It was included in a letter
written in November 1927 and sent to Gershom Scholem, the friend with whom Benja-
min had exchanged his ideas about the structure of justice and the form of the complaint
several years earlier. The text is entitled ‘‘Idea of a Mystery’’ (‘‘Idee eines Mysteriums’’),
and, although it does not refer to human rights as such, it does refer to man and to the
trial—and the historical processastrial—in which he is involved.
History to be presented as a trial [Prozeß] in which man, as an advocate of mute
nature, brings a complaint against all Creation and the persistent absence of the prom-
ised Messiah. The court, however, decides to hear witnesses for the future. The poet
appears, who feels what is to come; the artist, who sees it; the musician, who hears it;
and the philosopher, who knows it. Hence, their testimonies don’t correspond with
each other, even though they all testify to the coming of the Messiah. The court does
not dare to admit that it cannot arrive at a conclusion. For this reason, new complaints
keep being introduced, as do new witnesses. There is torture and martyrdom. The jury
benches are filled with the living, who listen to man the plaintiff and to the witnesses
with equal distrust. The jury members pass their duties on to their sons. At last, the
anxiety grows in them that they might be driven from their benches. At the end, the
entire jury has fled; only the plaintiff and the witnesses remain.^3The Hegelian conviction that world history is at once a world trial is dramatized—and
reversed—in Benjamin’s ‘‘mystery’’ in a quite un-Hegelian, but not entirely undialectical,
manner. The court scene that he describes is the counterpart of the Platonic court of the
dead, even though here it is ‘‘man’’ who is in charge of the prosecution and who appar-
ently does not belong to ‘‘the living,’’ who make up the jury. While Plato’s myth posits a
court that arrives at a judgment instantaneously, without a complaint and without wit-
nesses, and that rests on nothing but the fact that it judges—and judges human beings—
exaiphnes, Benjamin’s ‘‘mystery’’ describes a prolonged trial, which in order to do right is
supposed to arrive at a judgment but in reality is concerned with the fundamental catego-
ries of right itself, with judgment, and with its untenable relation to justice. The ‘‘mystery’’
is about a meta-juridical trial. The complaint that is filed addresses not only a deficit of
Creation, the muteness of nature, but also the failure of the Messiah to appear, along with
his promised reign of justice. The trial about the missing Messiah is a trial about jus-
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