Benhabib 94 Metapoltics Derrida Lyotard

7/30/2019 Benhabib 94 Metapoltics Derrida Lyotard

1/24

PDFlib PLOP: PDF Linearization, Optimization, Protection

Page inserted by evaluation versionwww.pdflib.com [email protected]


2/24

The Journal of Political Philosophy: Volume 2, Number I , 1994, pp. 1-23

Democracy and Difference:Reflections on the Metapolitics of Lyotard and

Derrida.SEYLABENHABIB

Government, Harvard University

I . T H E D EM O CRAT IC M O M E N TN his 1848 Preface to Democracy in America, Alexis de TocquevilleI rote,However sudden and momentous be the events which have just taken place soswiftly, the a uth or of this book can claim th at they have not taken him by surprise.This work was written fifteen years ago with a mind constantly preoccupied by asingle thought: the thought of the a ppro achin g irresistible and universal sp read ofdemocracy throughout the world. On reading it again, one finds on every page asolemn warning that society is changing shape, that mankind lives under changingconditions, an d new destinies a re impending.l

In view of the mom entous transformations which have occurred in the countriesof Central and Eastern Europe and the former Soviet Union since 1989, andeven prior to them, with the transition from dictatorships to democracy in thePhilippines, Argentina, Chile, and Brazil, the thought of the appro achin g irre-sistible and universal spread of democracy through out the world sound s moretru e today th an ever. Yet, as Tocqueville also reminds us, It is no t force alone,but rather good laws, which make a new government secure. After the battle

* This paper was delivered as a lecture on several occasions: first at the Conference on Gemein-schaft und Gerechtigkeit, held at Frankfurt under the auspices of the Akademie der Kuenste undWissenschaften, and cosponsored by Fischer Verlag in May 1 9 9 ~ ;econd at the APSA meetings inChicago in September of 1992; finally it was presented to the Graduate Faculty Seminar at theGraduate Faculty of the New School for Social Research in December 1992. I have learned from allthe lively discussions provoked on those occasions, but I would like to thank Jiirgen Habermas,Richard J. Bernstein, Alan Wolfe, Andrew Arato, and William Connolly in particular, who com-mented on an earlier version of this paper at the APSA Meetings, for their deep insights into themany issues developed here.Alexis de Tocqueville, Democracy in America, trans. by George Lawrence and ed. by J. P. Mayer(New York: Doubleday and Co., 1969), p. xiii.

0 994 Basil Blackwell Inc., 238 Main Street, Cambridge, MA 02142, USA, and 108 Cowley Road,Oxford, OX4 IJF, UK.


3/24

2 SEYLA BENHABIB

comes the lawgiver. The one destroys; the other builds up. Each has his func-tion.2 W hen w e watch the a fterma th of these bloodless peoples revolutions,with their wonderful sensual images of the velvet and the carnations, in caseslike Poland, Hungary, Czechoslavakia and the Philippines, we observe theircolors fa di ng an d their scent diminishing as the routine of everyday as opposedto revolutionary politics settles in; in others like the new Commonwealth ofIndependent Republics of the form er Soviet Union and in the form er Yugoslaviacivil war conditions, violent upheavals, social chaos and nuclear perils darkenthe future.

These momentous transformations have caught the political thought of thepresent breathless and adrift. With very few exceptions, neither empirical nornormative political theory was prepared to deal with the magnitude of theseissues with the self-confidence of Tocq~eville.~his may not necessarily belamentable; perhaps the owl of Minerva truly flies at dusk and reflectivethought can only paint its grey on grey. It is my deep sense, however, that thelack of orientation in political theory in view of the transformations of thepresent is not due to the inevitable gap betwen political action and politicalreflection alone. There is a profound lack of simultaneity between the time oftheory and the time of political action of such magnitude that Ernst Blochsphrase of n on-sim ultan eous simu ltaneities (ung leichzeitige Gleichzeitigkei-ten )4 strikes me as being quite ap t to capture the m ood of the present. W hilealmost all so-called western industrial capitalist democracies are caught in thethroes of this sense of being at the end of s om ethi ng -co ns ider some of thebewildering array of theoretical prefixes which have come to dominate ourintellectual and cultural lives, postmodern, postindustrial, post-fordist, post-Keynesian, post-histo ire, post-feminist-the efforts of the coun tries of Centraland Eastern Europe appear as nachholende revolutions5, as revolutions whichare at the beginning, which are catching up with or making good for processesthat others have already been through. For normative political theory, this un-usual conca tenation of historical circumstances has m eant tha t the postm odern ist

ibid., p. xiv.3 The only research pa radigm which was at tuned to t ransformation s taking place in these societiesthrou gho ut the seventies an d the eighties was the civil society paradigm. He re too it is possible todistinguish between Alain Touraines work on the self-organization of society, an d a se con d civilsociety paradigm, inspired by East European dissidents, but developed within a framework indebtedto the social theory of Jiirgen Habermas. For th e first see Alain Tou raine et al. , Solidarity. Poland

1980-1981 (Cambridge, England: Cambridge University Press, 1983); for the second, Jean Cohenand Andrew Arato, Civil Society and Political Theory (Cambridge, Massachusetts: M IT Press, 1992).Andrew Arato gives a helpful and comprehensive overview of the general literature in Interpreting1989 (unpublished ms., New York, 1991).Ernst Bloch, Erbschaft dieser Zeit (Frankfur t: Suhrkam p, 1973; first published 1935), p. I I Of f. See J. Haberm as,Die Nachholen de Revolut ion, Die Nachholende Revolution ( F r a n k f u d M a i n :Suhrkamp Verlag, 1990); an English version has appeared as The Rectifying Revolution, N ewLeft Review, N o . I 8 3 (September-October 1990).


4/24

DEMOCRACY & DIFFERENCE 3

critique of western democracy with which we have become so familiar in thelast two decades and the Central a nd Eastern Eu ropean as well as Latin A mericanaspirations to democracy coexist in the same intellectual and political space.Postmodernist skepticism to w ard really existing western democracies, an d a ttimes the naively apologetic confirmation of western capitalism and democracyby their new aspirants are contemporaries of our current political and culturalhorizon. It is this proximity and distance which is so disorienting as well asexplosive.

In the present article I want to explore this question: what, if anything, hasthe postmodernist critique of no rmative thinking contributed to the cu rren t taskof understanding and reconstructing democracy on a world-scale? M y arg um entis tha t although the problem o r set of issues suggested by the vague terminologyof difference, otherness, heterogeneity or le differend are crucial forthe ethos of contemporary democratic communities, theorists of difference havenot indicated where the line is to be drawn between forms of difference whichfoster democracy and forms of difference which reflect anti-democratic aspira-tions. In the transformed world political context of today, it is more essentialthan ever that th e critique of democracy in the nam e of difference developed byoppositional intellectuals be formulated so carefully that these thoughts cannotbe exploited for nationalist, tribalist, and xenophobic purposes. It is imperativethat the politics of the differend not be settled beyond and at the margins ofdemocratic politics.

In a recent article entitled The Other Heading: Reflections on Todays Eu-rope, Jacques Derrida voices the concerns and fears which motivate my reflec-tions here. Derrida writes:

Hop e, fear, an d trembling are com men surate with the signs that are coming to usfrom everywhere in Europe, w here, precisely, in the nam e of identity, be it culturalo r not, the w orst violences, those th at w e recognize all too well with out yet havingthought them through, the crimes of xenophobia, racism, anti-Semitism, religiousor national fanaticism, are being unleashed, mixed up, mixed up with each other,but also, and there is nothing fortuitous in this, mixed in with the breath, with therespiration, with the very spirit of the promise.6

The question though is whether the meta-politics which follow from certaintheories of difference, Derridas not excluded, and in particular their under-mining of the universalist premises of liberal-democratic theory, do not reducesuch concerns about xenophobia, racism, anti-Semitism to good moral andpolitical intentions which cannot be supported by philosophical arguments and

Jacques Derrida, The Other Heading: Memories, Responses, and Responsibilities, The OtherHeading: Reflections on Todays Europe, trans. Pascale-Anne Brault and Michael B. Naas (Bloom-ington: Indiana University Press, 199z), . 6.


5/24

4 SEYLA BENHABIB

strong reasons. May it be th at the critique of th e universalist political tradition ,developed by Jean-FranGois Lyotard and Jacques Derrida, is so radical that itundermines the rational defensibility of these ideals and reduces them to sheerexistential choices for which we cannot give reasons with good grounds? Mayit also be tha t this critique claims to be radical but is, in effect, curiously pow erlessto deal with the radical pow er of history a nd the historicity of political modernitysince the American and the French Revolutions? May it be that the price of acertain kind of hyper-radicalism is an aloofness of institutional and social cri-tique?8

Let me be very clear what my questions are not intended to imply. I am notsuggesting that there is any deductive or conceptual link between certain philo-sophical positions a nd political practices an d movem ents which we may considero b j e ~ t i o n a b l e . ~o put it bluntly, theorists of difference are not responsible for

7 In his thoughtful book, Political T heo ry and P ostmode rnism (Cambridge: C ambridge U niversityPress, 1991), p.133, Stephen K. White writes: N o postmodern thinkers 1 know of would giveblanket endorsement to the explosions of violence associated with, say, the resurgence of ethnicgroup nationalism in the Soviet Union or with the growth of street gangs in Los Angeles. And yet itis not at all clear that they have a normative discourse available to condemn such violence. I thinkthis statement expresses very well the sense of misgiving which some of us share about the meta-politics of postmodernism, as distinguished from the personal political positions of the thinkersinvolved. On the whole, I think that Whites sensitive and subtle analysis also underplays thedecisionistic streak in postmodern political thought which I will discuss below.

* Thomas McCarthy explores some of the deeper conceptual reasons why Derridas philosophyin particular does no t perm it a social theory of institutions which is historically differentiated enou ghin: The Politics of the Ineffable: Derridas Deconstructionism, Ideals and Illusions: On Recon-struction and Deconstruction in Contemporary Critical Theory (Cambridge, Mass.: MIT Press,I991 h PP- 97-120.Of course, in the current climate of continuing and at times bitter debate about Martin Heideg-gers involvement with National Socialism, the place of Heideggers philosophy for contemporaryFrench thought in general is being questioned, re-examined and re-analyzed. Jean-FranGois Lyotard,Heidegger and the Jews, rans. by Andreas M ichel and M ark Roberts (Minneapolis: University ofMinnesota Press, 1990) and Jacques Derrida, Of Spirit: Heidegger and the Question (Chicago:University of Chicago Press, 19 89 ) have each addressed these issues. 1 will be addressing the q uestionof the relation of politics and philosophy in Martin Heideggers work in a different context in TheReluctant Modernism of H annah Arendt (Berkeley, Calif.: Sage, forthcom ing 1994 ). My suggestionin section 4 of this paper that certain formulations of Derrida and Lyotard bring them into thecompany of decision ist political theory does not m ean tha t the political consequences of theirphilosophy would support reactionary, conservative thought. Decisionism, of which I see CarlSchm itts political philosophy as the prime example, is not N ational Socialism; it is a politicalphilosophy which says that true political sovereignty is only revealed in the moment of the emer-gency (Ausnahm ezustan d), an d that it is neither reason n or mo rality b ut the capacity of the sovereignto set itself through via its pow er tha t legitimizes all law an d politics. See Schmitt, Political Theologyan d Th e Concept o f the Political.There can be left as well as rig ht w ing variants of political decisionism. Walter B enjamin an dO tto K irchheimer, mem bers of the Frank furt School, were very influenced by C arl Schmitts politicalphilosophy in their critique of the W eimar Repub lic. Kirchheimer eventually developed a penetratingcritique of Carl Schmitt himself; of course, Walter Benjamins life came to a sudden and tragic endbefore the entire political mischief which Carl Schmitt got involved in with the Third Reich couldlie before his eyes. An excellent treatment of the influence of Carl Schmitt on early members of theFrankfurt School, and in particular on Otto Kirchheimer and Franz Neumann, is given by BillScheuerman, Radicalism and t he Rule of L aw: Th e Frankfurt School and the Crisis of Contem poraryLaw (unpublished PhD thesis, H arva rd University, 199 2). Cf. also, Ellen K ennedy, Carl Schmittand the F rankfurt School: A Rejoinder, Telos, 73 (Fall 198 7), and the articles by M artin Jay, Ulrich


6/24

D E M O C R A C Y & DIFFERENCE 5

the degenerate form of the politics of difference pursued at the present in Bosnia-Herzegovina for exam ple and it would be tendentious to suggest so. One cannotcriticize philosophical positions for their imputed, real or imaginary, politicalconsequences in the hands of others. Neither am I suggesting that we shouldjudge, evaluate, o r question the com mitment of theorists of difference to demo-cratic ideals and aspirations. W ha t I will be arguing instead is tha t Jean-FranqoisLyotard and, to some extent, Jacques Derrida, privilege in their writings on thepolitical a certain perspective, a certain angle, a certain heuristic framework,which itself has deep and ultimately, I think, misleading consequences for un-derstanding the rational foundations of the democratic form of government.They atte m pt to illuminate political phenom ena through an experience which isa limit condition: an ex trao rdin ary an d foundational moment. In doing so, theyrepeat an epistemic and ultimately meta-political problem which Richard Wolinhas very aptly characterized with reference to another group of thinkers, at adifferent time:

. . . a gene ra l f a sc ina t ion wi th l imi t s i t ua t ions (Grenzs i tua t ionen) and e x t r e m e s ;a n i n t e r e s t i n t r a n sp o s i n g t h e f u n d a m e n t a l e x p e r i e n c e s of aesthet ic modernity-shock, d i s rup t ion , ex pe r i en t i a l imm ediacy ; an in fa tua t ion w i th the s i n i st e r a n d thef o r b i d d en , w i t h t h e flowersof evil-to th e pl an e of every day life, there by in jec t inga n e l em e n t of e n t h u s i a sm and vital i ty in what had o t h e r w i se b e c o m e a r i g i d a n dlifeless mechanism.10

It is this fascination with the limit situation in republican politics that I wa n tto docum ent in the writings of Lyotard an d Derrida, a nd which I wish to criticizefor its inadequacy for understanding democratic politics.

11. THE SITE OF LE DIFFEREND: TH E REPUBLICAN ACT OFFOUN DATION IN LYOTARDS AN D DERRIDAS RECENT W RITINGSIn Jean-Franqois L yotards writings o n politicsl an d in Jacques D erridas recent

essays repeatedly, a theme, a problematique, returns. This is the preoccupationwith the originary or foundational political act. From Derridas writings cele-Preuss and Alfons Soellner in Special Section on Carl Schmitt and the F rankfurt School, Telos, 71(Spring 1987).

10 See Richard Wolin, The Politics of Being: The Political Thought of Martin Heidegger (NewYork: Columb ia U niversity P ress, 1990), . 30. Richard Wolin is referring to the influence of CarlSchmitt and Ernst Juenger upon the political thought of Martin Heidegger. Just as there is aconservative, right wing variant of the politics of the limit, there is a left-romantic, radical, variantof it as well. Thinkers like Walter Benjamin, Otto Kirchheimer, and Franz Neumann were all atsome point in their lives very influenced by the meta-politics of the limit. Is it par hazard thentha t the legal an d political philosophy of Walter Ben jamin occupies such a prom inent place in Jacqu esDerridas recent musings on the law?

1 Jean-Francois Lyotard, The Differend: Phrases in Dispute, trans. Georges Van Den Abbeele,(University of Minnesota Press: Minneapolis, 1988). he French edition, Le Differend, appeared in1 9 8 3 . All page numbers in parentheses in my text refer to this English edition.


7/24

6 SEYLA BENHABIB

brating the bicentennary of the American Constitution1z to Lyotards linguisticanalysis of republicanism in Le Differend and to the reflections of both on Pascaland the foundations of law,l3 a fascination with the paradoxes and aporias ofthe foundational moment in republican politics is apparent.For Lyotard the par ad ox es of republican foundationalism, as for Derrida,become the event, the moment, when the differend is revealed in politics, whenin fact politics is revealed as le differend. Lyotard writes:

In a republic, the pronoun of the first-person plural is in effect the linchpin of thediscourse of auth oriz ation . Substitutable for a prop er nam e, We, the French people. . . , t is supposedly able to link prespcriptions (such as articles in codes, courtrulings, laws, decrees, ordinances, circulars, and com ma ndo s) on to their legitima-tion in a suitable way.. . . [T lhe repub lican regim ens principle of legitimacy isthat the addressor of the norm, y, and the addressee of the obligation, x, are thesame. The legislator ough t not to be exempt from the obligation he or she norms.And the obligated one is able to prom ulgate the law that obligates him or her . ..We decree as a norm that it is an obligation for us t o carry out act a. This is theprinciple of autonomy.14

Lyotard analyzes the paradoxical aspect of these foundational formulations: thepuzzle emerges with the supposed identity of the two wes invoked, one inthe normative which constitutes the act of founding, as in w e the people decreeas a norm that; the second as in the case of the we that is the addressee ofthe obligation. The we of the normative, we the people, and the we ofthe declarative, w e ou gh t to obey the laws, are no t and m ay no t be the same.There is a suspicion th at the on e wh o speaks the law and the one to whom thelaw applies are not the same. The logic of republican identity here covers up animportant political asymmetry, namely the asymmetry between the law-giversand the constituents to whom the law applies.This republican formula of autonomy disguises the differend in politics,insofar as what is heterogenous, incommensurable, other and irreducible to acommon denominator is here tied together via a formula of identity. What areabsolutely heterogeneous are the tw o m omen ts of the we: the we wh o prom-ulgates the law, an d the w e to w ho m the law applies. Th e formula of republicanpolitics, we, the people declare that we shall obey x, makes the differenddisappear by reducing it to bland commensurability and identity.

Politics for Lyotard, in its authentic rather than the run-of-the-mill version,which he attributes to intellectuals and politicians, resides in the problem of

12 Jacques Derrida, Declarations o f Independence, N ew Political Science, 15 (1986), 7-1 5 .13See Lyotard, The Differend, pp. 118ff., 145 ff . See Jacques Derrida, Force of Law: TheMystical Fou ndatio n of Authority, Cardozo Law Reoiew (Special issue on Deconstruction andthe Possibility of Justice) , 11 (July-August 1990), 919-1047.l4 Lyotard, The Differend, p. 98 .


8/24


The politics of language as well as the language of politics are thesites where what is heterogeneous, other, different, incongruent, unfamiliar isrendered hom ogeneous, t he same, identical, con grue nt and familiar-heimisch.To uncover a nd unm ask this logic which homogenizes and w hich imposes same-ness over difference is the task of philosophical politics; but, an d this is the cr uxof the matter, this process of rendering homogeneous, compatible, congruent,the same, is due to an absolute spontaneity; it just happens. Lyotard hererefers to Heidegger:

No matter what its regimen, every phrase is in principle what is at stake in adifferend between genres of discourse. This differend proceeds from the question,which accompanies any phrase, of how to link onto it. And this question proceedsfrom the nothingness that separates on e phrase from the following. The re aredifferends because, or like, ther e is Erezgnis. But thats forgotten as mu ch as possible:genres of discourse are m odes of forgetting the occu rrence, they fill the void betweenthe phrases. This nothingness is, nevertheless, what opens up the possibility offinalities proper to the genres .. *6Spontaneity, arbitrariness, linkage, the happening, heterogeneity, and the powertha t links, tha t binds, th at organizes and m oulds: this is the site of the civil wa rof language as well as of the languag e of politics.

Is In the Preface to Le Differend Lyo tard s tates precisely the con nection he is establishing betw eena certain view of language and a certain politics. By showing that the linking of one phrase ontoanother is problematic and that this problem is the problem of politics, to set up a philosophicalpolitics apa rt from the politics of intellectuals an d of politicians. To hear witness to th e differend (p. xiii). This puzzling claim tying together the status of linguistic phrases with politics is repeatedeven more forcefully in the following passage: Were politics a genre and were that genre to pretendto that supreme status, its vanity would be quickly revealed. Politics, however, is the threat of thedifferend. It is not a genre, it is the multiplicity of genres, the diversity of ends, and par excellencethe question of linkage (p. 138).- ._ ~.IGibid., p. 138.Yet there is something remarkablv brief. imDatient. almost staccato in these formulations. TheI 1premise of the absolute heterogeneity and incommensurability of regimens and discourses is neverargued for; it is simply posited. I t corresponds to what Richard Bernstein has called a pervasiveamo rphou s mood. It is a mo od of decon struction, destabilization, rupture an d fracture-f resis-tance to all forms of abstract totality, universalism and rationalism. See R. J. Bernstein, Incom-mensurability and Otherness Revisited, The New Constellation (London: Polity Press, 1991),. 57(emphasis in the original). Moo ds cannot replace arguments. Lyotard now here distinguishes betweenincommensurability, heterogeneity, incompatibility and untranslatability. Cf. the following remark:Incommensurability, in the sense of the heterogeneity of phrase regimens and the impossibility ofsubjecting them to a single law (except by neutralizing them), also marks the relation between eithercognitives or prescriptives and interrogatives, performatives, exhaustives . . . For each of theseregimens, there corresponds a mode of presenting a universe, and one mode is not translatable intoanother (p. I 28). Incommensurability is the central epistemic premise of Lyotards philosophy oflanguage as well as politics, an d also its weakest. Lyotard here assembles under on e heading a rangeof meanings exten ding from radical untran slatability in language to the sense of unfairness or injusticeexperienced when the language of the victor is imposed to describe the wounds of the vanquished.The thesis of radical untranslatability of genres of discourse and phrase regimens is no moremeaningful than the thesis of the radical incommensurability of conceptual frameworks. For, ifframeworks, linguistic, conceptual or otherwise are so radically incommensurable with each other,then we would not be able to know this; for ou r ability to describe a framew ork as a framework inthe first place rests upon the possibility of being able to identify, select and specify certain features


9/24

8 SEYLA BENHABIB

In his reflections on Declarations of Independence, Jacques D errida likewisedrives home the arb itrariness of all republican beginnings via the use of linguisticmeans of analysis. The statem ents of the American Declaration of Independence,We hold these truths to be self-evident: that all men are created equal; thatthey are endowed by their creator with certain inalienable Rights . . .indicate,according to Derrida, a confusion of the co nstative with the performative.18The signatories of the Declaration speak in the name of the laws of N atu re an dNatures God. Thus, they understand themselves to be stating a constative;whereas the we hold these truths to be self-evident is a performative. Itestablishes the validity of the princ iples to which the adverb self-evident refersin the very act of formulating them. For Derrida, revolutionary acts of founda-tions confuse their ow n performativity via appeals to the constative; for Lyo tardrevolutionary acts present th e performative in the form of a constative. Th e pointis quite the same: Derrida sees revolutionary acts of foundation as concealingtheir own arbitrariness, their own lack of foundations by false hypostatization;Lyotard maintains that revolutionary acts of foundation hide the differend, thatis the moment of spontaneity and creativity when the gap, the hiatus inlanguage is bridged.

Lyotard and Derrida return here to the problem of republican and revolu-tionary justice which Hegel had first brilliantly analyzed in The Phenomenologyof Spirit in the section on Absolute Freedom and Terror.19 If freedom meantaccepting as legitimate only those principles an d institutions which the will couldhave given to itself, argued Hegel, then there were no possible co nstraints o n thecontent of that which the will could legislate as being legitimate. Neither thedictates of reason, nor the dictates of existing institutions and tradition couldconstrain the striving of the will tow ard absolute autonomy . Absolute, meaningunconditional freedom, could only end in terror; for any content which the will

of these other con ceptu al netw orks as being sufficiently like o u rs such that they can be characterizedas concep tual activities in the first place. This a rgum ent, which is usually deployed in th e con text ofepistemic and cultural-relativism deba tes, is no less applicable in this case. See Do nald Da vidso n,On the Very Idea of a Conceptual Scheme, Inquiries into Truth and Interpretation (Oxford:Clarendon Press, 19 85 ), pp. 183-99; W. V. Quine, Ontological Relativity and Speaking ofObjects, Ontological Relativity and Other Essays (New York: Columbia University Press, 1966).Also, Hilary Putnam, Two Conceptions of Rationality, Reason, Truth and History (Cambridge:Cambridge University Press, 1981), pp. 103-27. If phrase regimens and genres of discourse were soradically heterogeneous, disparate, untranslatable, then indeed it wou ld be impossible to account forone of the most usual competencies of language users: namely that in the course of the sameconversation, we can move from teaching to advertising, from informing to seducing, from judgingto ironizing. As competent users of a language we can negotiate these nuances of meaning, shifts ofstyle, suggestions of innu nedo , playfulness, an d irony. But if ord inary lang uage use and perfo rman cesuggest that ph rase regimens a nd genres of discourse are not insular and unbridgeable units, whatbecomes of the thesis of their absolute heterogeneity?Jacques Derrida, Declarations of Independence , p. I I.

l9 See G.W.F. Hegel, Phaenomenologie des Geistes, Philosophische Bibliothek, Bd. 114, d. byJ. Hoffmeister (Hamburg: Felix Meiner, I ~ S Z ) , 6th edition, pp. 413f f . ; this appears in English asHege l s Phenomenology of Spirit, trans. A.V. Miller (Oxford: Clarendon Press, 1977), pp. 3 5ff f .


10/24


would give itself, and any institutional specification which it would establishcould always be subject to further criticism. The consequence was perpetualdestruction, denunciation and dismantling of the existent. Absolute freedomcould not institutionalize itself; the revolution must devour its children. In herreflections on revolution, H an na h Aren dt gave these perplexities of revo lutionarylegitimacy n oted by H egel their sharpe st form ulation.20 Recalling her analysiswill also suggest a different manner of thinking through the linguistico-politicalpuzzles of revolutionary justice set up by Lyotard and Derrida.

111. H A N N A H AR EN DT AN D T H E ANTINOM IES OF REVOLUTIONARYACTS OF BEGINNING

According to Arendt the need for an absolute, for an absolute source ofauthority and legitimacy, manifests itself in the political sphere in two ways. Th einvocation of an absolute is needed t o break two vicious circles, the oneapparently inherent in human law-making, and the other inherent in the petitioprincipii which attends every new beginning, that is, politically speaking, in thevery task of fo undatio n.21 The first of these needs expresses the puzzle of th elegitimacy of law: the source of authori ty of all human-made laws is thought toreside in an instance outside them, bestowing legitimacy upon them. Legalityan d legitimacy are distinguishable; the prom ulgated law does n ot automaticallycarry its source of legitimacy within it. Hence this legitimacy is located in asource beyond th e hum an- m ad e law, be it in Go d, the Holy Scripture, in Na tu reor even Reason. The second need reflected in this search for an absolute in thepolitical realm derives from the circularity of the foundational act or of everynew beginning. If the will of the people united is the source of all legitimacy,then whence does this people derive its auth or ity ? If it is the constitution w hicha united people gives itself that forms and declares it as a body politic, whencedoes the co nstitution itself derive its au tho rity ? Th e act of foundation seems tosend us around in a circle: the revolutionary will of the people is said to be thefoundational act which lends legitimacy to the constitution; on the other handthe will of the people is declared the highest law of the land because the consti-tution legitimizes it to bear this authority. AbbC SieyPss distinction betweenpouvoir constituant and pouvoir constituewas an at tempt to solve this pa ra do xof foundational republicanism; the pouvoir c on stitu i, constituted power, wou ldhave to derive its authority from the constituant power, le pouvoir constituant;but this constituting power was no other than the will of the nation, whichitself remained outside and above all governments and all laws.22

2o Hannah Arendt, On Revolution (N ew York: The Viking Press, 1969), 7th printing, pp. 1 5 3 f .21 ibid., p. 160.22 ibid., p, 162.


11/24

1 0 SEYLA BEN HABIB

Hannah Arendts reflections on these perplexities of revolution lead her todraw a distinction between the legitimacy of power and the legitimacy of th elaw.23 I t is the mark of successful revolutions, as opposed to those which enterthe perpetual dialectic of the erection and destruction of freedom, that theystabilize themselves by acts of constitution giving. Through these acts the gov-ernment of laws replaces th at of men. T he legitimacy of laws can now be tracedback to their being grounded in the constitution; whereas the legitimacy of theconstitution itself remains an open issue: particularly for those nations who arenot fortunate enough to have retained some form of political organization priorto the m om ent of revolutionary upheaval, the mystery of the political act a t thebeginning remains. Arendts diagnosis here is that whereas none of the constit-uent assemblies of the French Revolution could command enough authority tolay down the law of the land, in the case of the American colonies i t wasotherwise because the Constitutional Assembly owed its authority to the alreadyexisting political self-organization of the thirteen colonies.

IV. ANTINOMIES OF REVOLUTIONARY FOUNDATIONS IN LYOTARDAN D DERRIDALet me return to Lyotards politics of le differend in the light of Arendtsanalysis in On Revolution. Lyotard maintains that the we of the normative,as in we, the people, and the we of the declarative, as in all residents ofthe Thirteen colonies, may not be the same. Through a series of reductions toidentity, the m om ent of difference which is politically significant is covered over.To speak with Adorno , the logic of identity does violence to those whose other-ness places them beyond the homogenizing logic of the we. This violence atthe origin, this violent exclusion is concealed in every republican found ation, butreturns in the form of the disjunction between those who speak in the name ofthe we and those who are spoken about. Republican justice is based on thisdisjunction. This insight appears to me absolutely fundamental. Every act offoundation and every act of constitution of a polity may conceal a moment ofexclusionary violence which constitutes, defines, and excludes the other. In thecase of the American Declaration of Independence, this moment of exclusioncorresponds most prominently to the erasure of the Black American slave pop-ulation of the colonies and the native American Indian population of the NewWorld from the constituting we. Their presence is included in the secondwe, in the we to w hom the law of the land applies, but they have no voice inthe articulation of the law of the land. The subsequent history of the UnitedStates of America has shown that this moment of exclusion, this moment ofviolence to otherne ss, has never been com pleteley obliterated: the violence of th e

13 ibid., pp . 165 f f .


12/24

D E M O C R A C Y & DIFFERENCE I 1

beginning returns in the Civil War, when the status of the other beyond thew e splits the repu blican com mun ity of citizens aro un d the issue of the abolitionof slavery. For the Native American Indian peoples the republican we is thevoice of a strange, alien law that decimates their own communities, disregardstheir tribal practices, confiscates their lands, and ultimately subjugates and con-quers them. T he question - w h o is the w e? - is a fundamen tal political ques-tion-in the name of w ho m do you speak and for w ho m do you think you areentitled to sp ea k? Since every act of identity entails on e of difference a nd differ-entiation, we can also concede that there may be no act of republican foundingth at does n ot carry its ow n violence an d exclusion within.

Yet to leave matters here would be to tell less tha n half the story. For Derridathis sin at the origin indicates an absolute lack, an absence, at the center ofrepublican, an d pe rhaps all, politics which always needs to be filled.24 ForLyotard this original sin reveals the moment of spontaneity and freedom whenle differend can appear. Th is obsession with the origin, with the a ct of foundation,however, is also exceedingly formalistic. The very use of completely formal term sof linguistic analysis like the performative, the constative and the normativealready indicates the problem. N oth ing is said ab ou t the content of t he acts ofdeclaration a nd independence; it is as if the conte nt of the American Declarationof Independence for Derrida and the content of the French declaration of theDroits de 1Homme et du Citoyen for Lyotard were fully irrelevant to theformal logic of the problem of authority and legitimacy. But they are not. In thefirst place, only from within a secular and rationalistic natural law tradition canwe understand th at the equivocation between the laws of nature and the self-evident moral truths which the American Founding Fathers write of is notsimply a linguistic, categorial confusion, but expresses the beginnings of a nintellectual process when modern conceptions of democratic legitimacy emanci-

24 In her provocative piece, Declarations of Independence: Arendt and Derrida On the Problemof Founding a Republic, American Political Science Review, 8 5 (1991),7-113 ,Bonnie Honiguses the distinction between constative an d performative utterances to criticize H an nah Arendtan d to defend D erridas thesis of the u ltimate arbitrarines s of all power. She writes: Derridas point,like Nietzsches, is that in every system (every practice), whether linguistic, cultural, or political,there is a moment or place that the system cannot account for (p . 106).Arendt is taken to task fornot seeing that for the revolutionaries every performative is also a constative. Despite Honigsprovocative perspective, I feel that a linguistic distinction that originates in the context of ordinarylanguage philosophy in J. L. Austins thought is being used here to carry an enormous systematicburden, ultimately obfuscating questions of normative validity and justification. If problems ofpolitical legitimation, legal validity, the moral foundations of the law, and the justification of moraland social norms could be solved by declaring them to be simply performatives which we mistakenlythink to be in need of validation by constatives and other normatives, then indeed much of moraland political theory would rest on a category mistake. Declarations of category mistakes, however,are always deceptive in their simplicity. Just as Prichards article D oes Mora l Philosophy Rest o n aMistake? did not prevent the flourishing and development of moral theory and normative thinkingin the forty odd years after which it was published, I doubt that the Austinian distinction betweenconstatives and performatives will help us solve problems of political legitimacy and questionsconcerning the moral foundations of the law.


13/24

I 2 SEYLA BENHABIB

pate themselves from earlier theological and cosmological underpinnings in aphilosophy of nature.25 To reduce this complex problem of the emergence ofdemocratic conceptions of legitimation out of the natural law tradition to alinguistic mistake is to reduce the flesh and blood of history to a series of crueljokes. This method of analysis is not only formalistic, but it is also sterile for itdoes no t allow us to come to grips with political though t in its historical contex t.

Perhaps even more significant is a second problem. The content of the de-clarative, to use Lyotards language, which obliges us to obey certain kinds ofprinciples is by no means insignificant. For between the formal structure of theoriginal act of identity constitution and exclusion and the normative content ofthe declarative which obliges us to obey certain laws a contradiction exists.Although it is we, the white, propertied, Christian, North American maleheads of household, w ho h old these truths t o be self-evident, th at all men ar ecreated equal, and endowed by the law of nature with the rights of life, liberty,and the pursuit of happiness, between our contingent historical identity whichaffirms these truths and the content of these truths a tension, a dialectic ofmomentous historical proportions exists.26 The Abolitionists were to ask, If allmen are created equal, how come the black slaves who labor for you, whomyou whip, who raise your children, whom you rape are not also human?Subsequently the Suffragettes would ask, I f you could contemplate that yourown black slaves were h um an s like you, ho w could you not con temp late the fullcitizenship of the women whom you pledge to honour, love, and cherish, whorun your homes, bear your children and ta ke care of your b od y? To paraphraseGeorge Orwell, the paradox of modern democratic politics is that all pigs areequal; but some are more equal than others. It is the ethos of democratic

25 Would Lyotards and Derridas critique be obviated and lose their object if they were to focuson the Constitution of the United States in place of the Declaration of Independence? Since theConstitution is remarkably silent on the seat of ultimate authority, would this be proof of itsperformativity? I think one has to see how anachronistic this mode of questioning is, distinguishingas it does so sharply between constatives and performatives, for the Age of the Enlightenment. ForJefferson there was no contradiction between the formulations, We hold these truths to be self-evident, and that it was the Laws of Nature and Natures God that prescribed the inalienablerights of all men, for one held these truths to be self-evident, because the opinions and beliefs ofmen [which] depend not on their own will, but follow involuntarily the evidence proposed to theirminds (Thomas Jefferson, Draft Preamble to the Virginia Bill for Establishing Religious Freedomas cited by H ann ah Arendt, On Revolution, pp . 193, 314). Furthermore, in the case of the Consti-tution, the Union of the People of the United States, is also being presupposed as a political andhistorical fact; it is in the nam e of this authority tha t the representatives act. By Septemb er 17, 1787when the Constitution was declared, the Union was not merely a fact to create, so to speak, buthad historical reality, although it was an imperfect union. For the text of the Declaration ofIndependence and the C onstitution of the United States, I have consulted the editions contained inEdmund S. Morgan, The Birth of the Republic 1763-89 (Chicago: University of Chicago Press,1977). revised edition. 1 thank Alan Wolfe for bringing the problem of the disparity between theDeclaration and the Co nstitution to my attention.

26 See Jo an B. Landes, Wo men and the Public Sphere in the Age o f t h e French Revolution (Ithaca,N.Y.: Cornell University Press, 1988) and Linda Kerber, Women of the Republic: Intellect andIdeology in Revolutionary America (New York: Norton, 1986) for works dealing with the dialecticof revolutionary inclusion and exclusion in the case of women.


14/24

D E M O C R A C Y & DIFFERENCE I 3

politics that the privilege of being counted among the pigs is always contestedand essentially contestable. The American and French Declarations of Indepen-dence for the first time introdu ce a logic of universalist legitimation into history,and this logic subverts the exclusions and identity reductions posited by therevolutionaries themselves. Potentially there is a tension between the revolution-ary constitution of the we and the moral and political content of the revolu-tionary declarations which transcend the historical specificity of thesedeclaration s themselves.

The constitution of collective identity is indeed the site of the appearance ofthe differend in history.27 All great social movem ents of modernity, from theanti-Slavery movements to the Suffragette movement, the socialist movement,and the anti-imperialist movements have not only pleaded for the formal inclu-sion of previously excluded groups under the we; they have also suggestedother modes of being, thinking, acting, and doing which have at times clashedwith and contested the republican-democratic conception of the citizen as thewarrior-hero or the paterfamilias.

If on e recalls Derridas thesis in his early wo rks ab ou t the dissem ination ofan d the impossibility of ever fixing multivocity in language, then my

point t hat a dialectic would exist between the historically given meaning horizonof a text like the Constitution, for example, and its subsequent interpretationscould be seen as perfectly comp atible with this position. Th e difficulty, however,lies in Derridas hyperbolic vacillations between an ethical hermeneutic of th elaw and politics, on the one hand, and a political decisionism which entails aform of legal positivism on the other. According to the first view, Derridasposition would be that the meaning of justice always transcends and musttranscend as an ethical imperative the individual acts of legislation, cases ofjudgment, and codification of the law encountered in history. Furthermore, noneof these acts of legislation, justice and codification could once and for all fixtheir m eaning; their meaning and th e justice th at would ensue from them wouldreside in the ever new appropriation of these principles. Derrida writes

This fresh jud gm en t ca n very well-must very well-conform to pre-ex isting law,but the reinstituting, reinventive and freely decisive interpretation, the responsibleinterpetation of the judge requires that his justice not just consist in conformity,in the conservative and reproductive act of judgment. In short, for a decision to bejust and responsible, it must, in its prope r mo ment if there is one, be both regulated

27 Contemporary theorists of democracy have been paying increasing attention to this issue, seeIris Marion Young, lustice and the Politics of Difference (Princeton, N. J. : Princeton UnviersityPress, 1990).28 See Jacques Derrida, White Mythologies, Margins of Philosophy, trans. A. Bass (Chicago:University of Chicago Press, 1982) nd Jacques Derrida, Writing and Difference, trans. and intro.by Alan Bass (Chicago: University of Chicago Press, 1978).


15/24

I4 SEYLA BENHABIB

and w ithou t regulation: it must conserve the law and also destroy it or suspend itenough to have to reinvent it in each case . .. 29Compare now this passage with the following where the slip into politicaldecisionism and legal positivism becomes visible:

A constative can be juste (righ t), in th e sense of justesse, never in the sense ofjustice. But as a performative cannot be just, in the sense of justice [justice n FrenchS.B.], xcept by founding itself on conventions and so on other anterior perfor-matives, buried or not, it always maintains within itself some irruptive violence, itno longer responds to the demands of theoretical rationality [my emphasis S.B.].Since every constative utterance itself relies, at least implicitly, on a performativestructure . . . , he dimension of justesse o r t r u th of the theoretico-constativeutterance (in all domains, particularly in the domain of the theory of law) alwaysthus presupposes the dimension of justice [justice in French S.B.] of the perfor-mative utterances, that is to say their essential precipitation, which never proceedswithout a certain dissymetry and some quality of violence.30W hereas in the first set of considerations De rrida is addressing the hermeneutic

problem of how, in the absence of clearly articulable and codifiable rules, rule-governed activity can result, in the second passage cited there is a transition tothe view of the irruptive violence of the performative. But the creative her-meneutic which all legal understanding and interpretation displays is sharplydistinguished from the irruptive violence which n o longer responds to thedemands of theoretical rationality but to which all constatives ultimately lead.One has to ask: in what does this violence consist? In Derridas prioritizing ofthe performative is there no t a regression to a thinking of origins, to the thoughttha t there is a first conven tion which precedes all conventions an d from whichperformatives derive their power? Is no t Derrida suggesting tha t behind the lawstands a moment of decision, a moment of sheer power, a moment of violentpositing which n o longer responds t o the demands of theoretical ratio nality ?What is it that we are asked to remember in remembering this moment oforiginary, fo un dat ion al violence? W ha t is it about politics and the politicalthat this reflection upon the possible irruptive violence at the beginning issupposed to reveal?

To deny the presence of violence, conquest, defeat, brute power, and subju-gation in political history would be more than naive. So, Derridas point cannotbe th at simple. Rather, this analysis of the ultimate, non -rational, convention-ality of the perform ative on w hich every constative relies, is supposed to revealsomething about the metaphysical abyss, the metaphysical beginning, dasErezgnzs, in Heideggerian language, across which and over which the mantle oflaw, legality, legitimacy, and consensual political power is thro w n. But, suggests

29 Jacques Derrida, Force of Law. The Mystical Foundation of Authority, Curdozo Law Review,30 ibid., p. 969 .Special issue on Deconstruction and the Possibility of Justice, I I (July-August 199o), p. 961 .


16/24


Derrida, it is only when we focus on this limit case of revolutionary beginningth at we can con front th e arbitrariness, the sheer wilfulness of all power, w hichn o longer reponds to the demands of theoretical rationality.

It is in their methodological fixation upo n the arbitrarine ss of the beginningin republican politics, that Lyotard as well as Derrida ultimately reduce thehistorical and socio-cultural problems of revolutionary violence, modern consti-tutionalism and nation-building to a set of metaphysical puzzles. The issue is notthe philosophical interpretation of the political per se, but rather those philo-sophical presuppositions themselves in the light of which politics is thoughtabou t. O n the on e ha nd , both share the premises of a legal positivism w hich isno t even so much argued f or; it is simply posited t ha t the law, as a petformativegrammatical enunciation, must also bear the metaphysical fate of all performa-tives, that is, either of resting itself upon another performative, thus leading toan infinite regress, or of establishing the conditions of its own performativitythrough a sheer act of positing. In terms of legal theory this m eans t ha t eitherthe legitimacy of the law rests with the law itself alone or with a moment ofrevolutionary, and ultimately arbitrary positing to which the law refers back.This means that it is illicit to question the law in the name of any normativeinstance, like morality o r even rationality, wh ich lies beyond the law. Auctoritatfacit legem; And Covenants, without the Sword, are but Words, and of nostrength to secure a man at al l as Thomas Hobbes has told us.31But howconvincing is this performative philosophy of the law which recycles the oldtheses of legal positivism in the garb of Austinian language analysis?M or e significantly, wh at really follows for o u r und erstanding of democraticpolitics from this meta-critique of revolutionary foundings in the hands of Lyo-tard and De rrida? W ha t have we gained thro ugh their perspective? I want tosuggest that Ultimately at a formal level of analysis there is indeed no solutionto the parad ox of the constitution of revolutionary authority; yet there are bothhistorical and institutional ways of thinking about these issues which lead to amore fertile path than those followed by Lyotard and Derrida. Arendt can beour guide here: for Arendt, as faulty as her comparative analysis of the twoRevolutions was, the crucial historical question was what had allowed the sta-bilization of the C onstitution to become the sup reme law of the land in the caseof the United States an d why, in the case of the French Revolution, constitution -alism could not become a tradition but was displaced by revolutionary republi-canism. Unlike Lyotard and Derrida, Arendt translates the puzzle of the searchfor absolutes in politics into a historical question concerning constitutionaltradition^.^^

31 Thomas Hobbes, Leviathan, ed. C.B. Macpherson (London: Penguin Books, 1980; riginallypublished 1651), . 223.32 See H. Arendt, O n Revolut ion, pp . 167 f . Richard Bernstein has pointed ou t to me in conver-sation that there may be more affinity between Lyotard and Derrida on the one hand and Hannah


17/24

16 SEYLA BENHABIB

While this translation is not altogether satisfactory, it allows us to thinkdifferently about issues which Lyotard and Derrida also pose. By maintainingthat the performative entailed in the statement We the French People, Wethe American People, pretends to be a constative o r a declarative, they seem tosuggest th at i t is best to realize th at the legitimacy of the law is always arbitrary.There is no instance behind the act of will which posits the authority whichmakes the law.

Yet even if the aporia of foundational authority may be formally insoluble,democracies have developed a series of institutional mechanisms for controllingand self-correcting the arbitrariness of original positing of authority. In a con-stitutional dem ocracy, there is no final seat of sovereignty. If the land has a dopteda constitution, a Basic Law, the will of the legislature is itself subject to inter-pretation and analysis in light of the constitution. The legislature or Congressmay promulgate a law but the procedure of constitutional review allows afurther instance to judge the will of the peop le in the light of the principles ofthe constitution. This mechanism of interplay between the legislature and anindependent judicial instance with respect to interpetations of the constitutionmay ultimately be the sole guarantee preventing the dem ocratic wes of m anynations from reverting back to the originary violence of their moments of birthas nations, thus excluding the ot her from their polity.33 Lyotard an d D erridadisregard the institutional mechanisms whereby constitutional traditions enabledemocracies to correct, to limit and to ameliorate mom ents of unbridled m ajority

Arendt on the other, insofar as Arendt as well focuses on the new and the unprecedented asthe hallmark of authentic political action. Of course it is possible to read Lyotards concept of ledifferend and Derridas concept of irruptive violence as kindred concepts to Arendts emphasisupon the new. I think that an adequate discussion of this issue would have to involve a thoroughanalysis of the various concepts of action and intepretation in the work of the three thinkersmentioned; however, on a more basic level, we should note that for Arendt the experience of thenew in politics is confined to action within the city, once its walls have been established. Acts ofconstitution-giving for her are more like acts of art, and thus fall under the concept of work,rather than of action. Law-giving is an art; Arendt often cites the Greek and Roman perspective ofthe legislator as a divine presence. This sharp distinction between constitution-making andpolitical action in Arendts work is to be understood in the light of her own profound sense of thepotential arbitrariness and danger lurking in every beginning, Rather than revel in this danger,Arendt, like most political theorists of the tradition (Jean-Jacques Rousseau in particular comes tomind here with his call for a divine law-giver), seeks to contain it by housing it in the city. Forthe distinction between political action and constitution-making or law-giving, see Hannah Arendt,O n Revolution, pp. 189 ff . and The Human Condition, pp. 194 f . , where she both explicates thedistinction and criticizes the Greeks for trying to make all political action like law-gving, a craft.

33 The world-wide phenomena of emigrations and immigrations, ranging from economic andpolitical refugees to refugees of wars and religious and ethnic persecution, is a good example toillustrate this point. In many European countries, for example contemporary Germany, immigrationlaw may become a battleground between the political will of the legislatures and democratic majoritieson the one hand, and Constitutional instances, like the Verfassungsgericht, on the other. Of course,in all democratic countries, elected representatives and democratic majorities can ultimately changethe Constitution; however, the very fact that even the will of the majority to change the constitutioncan be tested with respect to its constitutionality shows how complex, interdependent and herme-neutically circular this process is.


18/24


rule, exclusionary positing of identity, and the arbitrary formation of norma-tives.Contrary to what attracts thinkers like Lyotard, Derrida and Carl Schmittbefore them to revo lu t iona ry l imi t ~ i tua t ions ,~~onstitutional dem ocratic pol-itics is not mere humbug, mere routine. There is an aspect of rationality in theinterlocking an d self-correcting institutional cycle between legislatures a nd con-stitutional instances. Constitutional democratic politics means that no instanceis supreme; that although the people are nominally sovereign, even the will ofthe people m ust subm it itself to, and accept to bind itself by, a set of rules whichare constantly in tepreted, reappropr ia ted and c ~ n t e s t e d . ~ ~his is the historicaland institutional solution to Hegels critique of the revolutionary will and toAbbC Siey6ss disjunction between the pouvoir constituant and the pouvoirconstituk. If th e Suprem e Cou rt is the constitution in session, then dem ocraticpolitics is the process whereby the meaning, the scope, and the prerogative ofthe interpretations delivered in this session are constantly challenged.Certainly the closed circuit of institutional democratic politics can stifle thedifferend, it can even make it disappear. Perhaps, though, there is a form ofdemocratic politics which lets the differend appear and which does not oppressand stifle it. Must such politics be located at the origin, at the margins, at thelimits and extrem es of the process alo ne ? Can we conceive in everyday politicsa process of the transfiguration of the commonplace? Let me suggest a fewcandidates of such processes from recent mem ory: think of the peace movem entswhich nearly a decade ago sw ept across the face of Europe an d the United Statesand which expressed loudly an d clearly tha t the use of nuclear weapons amongnations was morally and politically abhorrent; think of the Argentinian move-ment of the mothers, the Desapareeidos, who with their pots and pans andtenacity, courage an d imagination kept alive the meaning of hu m an rights underthe dictatorship; think, of course, of Nelson Mandela and the recent historicvote in South Africa for an end to apartheid. And most recently, think of themanner in which Anita Hills charges of sexual harassment against Justice Clar-ence Tho ma s thrus t the differend-in all senses of the word from the literalto the m eta ph or ica l-o nt o the nearly all male an d white political scene of Wash-ington, D.C.Yet there is an im po rtan t objection to this list as well. Although South Africais abolishing apartheid, all across Europe a new form of apartheid againstpolitical refugees, econom ic refugees and foreigners is emerging. Eastern E urop e

34 See Carl Schm itt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge,Mass.: MIT Press, 1 98 5; originally published 1923 ) and C. Schrnitt, Political Theology: FourChapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, Mass.: MIT Press,1988).35 For a n excellent an d creative analysis of foundational politics and constitutional interpretatio n,and the concept of jurisge nerative politics, see Frank M ichelman,Laws Republic, Yale Law

Jotrrnal 9 7 (19881, PP. 1493-1537.


19/24

1 8 SEYLA B ENHABIB

did not only produce Vaclav Have1 and Solidarnoszc but also the civil war inYugoslavia and the ethnic massacres in Armenia and Azerbaijan. What concep-tual means do we have for sorting out different instances of le differend? Inconclusion I want to summarize in the form of three epistemico-political thesesthe conceptual shift from republican foundationalism to a deliberative model ofdemocracy which is needed in political theory in order to enable us to thinkthrough some of these issues.

V. F RO M REPUBLICAN FOUNDATIONA LISM T O A DELIBERATIVEM O D E L OF DEMOCRACY

IDENTITY vs SOVEREIGNTYI would like to call the perspective from which Lyotard an d Derrida illuminate

political phenomena in their recent writings, that of republican foundational-ism. Methodologically they choose to focus o n one aspect of modern politicsmore than any other, precisely because the act and the event of founding a bodypolitic seems t o them to highlight the paradoxes and aporias at the heart of allpolitical life. The republican act of foundation is not considered the exception,rather i t becomes the norm in the light of which to judge all political life. Thisfocus on the act of foundation is extremely distorting for it ignores the institu-tional and historical learning processes wh ich really existing democracies havegone through.The first contrast which I would like to establish between the perspectives ofrepublican foundationalism and a deliberative model of democracy is aro un d theproblem of sovereignty in the body politic. For the foundationalist republicans,beginning with Jean-Jacques Rousseau, the act of sovereignty is that moment inwhich the political identity of the community is formed and its highest seat ofauthority posited. The me tap ho r of the bo dy politic, of the b od y of thepeople suggests here a conflation of two distinct processes: the constitution ofthe political community as a unit on the one hand, and the form of authorityaccording to which this political community will be governed on the other. Toseparate the formation of identity from the constitutional and institutional issueof the seat of sovereign authority is essential for the following reasons: theidentity of a body politic refers not only, and not primarily, to the politicalprocess through which it is governed but rather to other criteria like linguistic,ethnic, racial, and religious homogeneity. The concept of the nation and thephenom enon of n atio na lism have allowed the silent an d historically disastrousidentification of these tw o processes with each other, since the nation is thou gh tto be not only the self-identical and homogeneous body politic but also to bethe source of all sovereign authority.36

36 See Stanley Hoffmans thoughtful analysis for untangling som e of the complex issues involved


20/24


Against this perspective, the deliberative democratic model distinguishes be-tween the ethnos and the demos, between the ethnic, cultural, lingustic, andreligious identity of a people, and the political constitution of the people as a norganized, self-governing body. A demos can consist of more than one ethnos;the sovereign political community may encompass and usually does encompassm ore tha n on e ethnic, religious, an d linguistic community. Wh at makes such a nethnically diverse body politic one is not some mystical act of sovereign will-formation, b ut th e constitutional an d institutional principles through which sucha people enter into the world-historial arena and demand recognition fromothers. N o nation is the seat of an ultimate, m ystical sovereignty. Dem ocraciesare not formed through the mystical sovereignty of nations but through theconstitutional principles which peoples adopt to govern themselves by and theinstitutional arrangements which they set into motion. Perhaps the events ofrecent history in the h eart of E urope will have tau gh t us how disastrous it is toconflate the aspirations of different groups to cultural an d ethnic self-expressionwith the issue of political sovereignty.

SOVEREIGNTYvs DEMOCRATICEGITIMATIONHow can this distinction between sovereignty and identity be sustained? Nei-ther Lyotards philosophy nor Derridas method of deconstruction have the

conceptual resources to allow us to set the terms of the problem correctly. Yetif in the American and French Declarations of Independence one does not seethe mere conflation of the performative with the constative and the normative,but one also recognizes these events as ushering a new form of political legiti-mation into political history, then a first step will have been made in thisdirection. It is the hallmark of political modernity that the legitimation of lawsno longer derives from a theologically or cosmologically grounded Weltan-schauung. The modern natural right and n atural law traditions are hybrid con-ceptual movements of tho ug ht which, through paradoxical appeals to the conceptof nature, legitimize a secular and ultimately man-made form of political au-thority. The loss of absolute and fundamental points of recourse in the politicaland ethical sphere always calls forth the question of legitimation. Modernized,secular societies repeatedly pose the question of political legitimacy and attemptto answer this under conditions of a postm etaphysical universe.The American and the French Revolutions, despite their different paths andfortunes, introduced into history the idea that the source of all legitimation isthe will of the people insofar as this people adopts a set of universal moral andlegal precepts guaranteeing it a set of inalienable rights. But between the beliefin the sovereignty of the nation and the belief that this nation is sovereign onlyin quests for national self-determinationand sovereignty. Stanley Hoffman, The Delusion of WorldOrder, The Ne w York Review of Books, 39, No. 7 (April 5 , 199z), p. 37 ff .


21/24

20 SEYLA BENHABIB

insofar as it chooses to abide by certain principles, a clash, a tension exists,which subsequently unfolds in history.The question which subsequently arose was: what is the legitimacy of the

sovereignty of the nat io n? From within a secular political context the only answ erto this question can be: it is the set of universalist moral and legal principleswhich constitute m or al im peratives transcending specific political-constitutionalacts that legitimize an act of popular sovereignty. This is what Kant had calledthe idea of a republican constitution from a c osm opo litan point of view.37 ForLyotard and Derrida the metaphysical baggage of these appeals to human ity an dmorality appear so big and indefensible that they demystify the cosmopolitanpoint of view to be a n illusory perspective as well.

In his reflections on todays Europe entitled The Other Heading, Derridaexpresses concern about nationalism and the mystificatory claims to identity onwhich it rests. N O cultural identity, he writes, presents itself as the opaquebody of an untranslatable idiom, bu t always, on the contrary, as the irreplaceableinscription of the universal in the singular, the unique testimony to the humanessence and to w ha t is prop er t o man.38 Derrida observes th at all claims tocultural and national identity have a homogenizing logic, that they level outdifferences, create imaginary and purified forms of identities, and eliminate thenon-identical and the differend from their midst. But the inscription of theuniversal in the singular, which accompanied the various declarations of therights of man during the time of the bourgeois revolutions, can mean two verydifferent kinds of claims: on the one hand, this can refer to the homogenizinglogic of cultural identity mentioned above; on the other hand, it is also theparadox of these modern revolutions that they take place in the name of anotheruniversal, tha t is, hum anity a nd hu m an rights. Like H an na h Arendt, I see betweenthe claims of nationalism and those of the universalistic declaration of humanrights the tragic conflict between ethnos and demos. By not distinguishing be-tween national and cultural searches for purity in the name of a universalhuman essence and the universalistic claims of bourgeois revolutions, as en-coded in their human rights declarations, Derrida assimilates both to one prob-lem, namely the inscription of the universal in the singular. This, in his viewof course, is the illicit move toward essentialism which must be deconstructed.Yet the only institutional an d concep tual way to criticize nationalism an d claimsof cultural purity is in the nam e of universalistic hu m an rights. If there is ano therconceptual an d institutional strategy, certainly neither De rrida (n or Lyo tard)have so far told us w ha t this could be. Derrida cannot have it bo th ways: on theone hand he criticizes and condemns nationalism, racism, xenophobia and anti-

37 Kant, Idea for a Universal H istory From a C osmopolitan P oint of View [1784] in On History,38 Jacques Derrida, The Other Heading, p. 73.ed. Lewis White Beck (New York: The Bobbs-Merrill Company, 1963), pp . 11-27.


22/24


Semitism, and, on the other ha nd , he undermines the conceptual bases for holdingo n to those universalistic moral and political principles in the name of whichalone such critique can be carried out. The famous double gesture of decon-struction, which parasitically feeds upon what it deconstructs, faces us here aswell.

By contrast, from the perspective of deliberative democratic politics the issueis how to articulate the normative bases of cosmopolitan republicanism in anincreasingly decentered, fragm ented a nd an ti-metaphysical universe. Th e increas-ing globalization of world-econom ies, legal systems, cultures and com mu nicationnetworks are now creating a world-wide political public sphere, such that thecosmopolitical point of view has ceased to be an ideal of reason alone an d hasbecome, in however dis torted a fashion, a politically actual possibility. We needa new jus gentium for a new wo rld; for th e comm on opinion of m ankind,that fictional posit of eighteenth cen tury political tho ugh t, is still the only instancewhich can transcend th e self-centered narcissism of nations and force them intorecognizing the rights of others like them.

DEMOCRATICEGITIMACY ND THE PUBLICSPHEREModern collective political identities in a disenchanted universe are fragileachievements, constantly p rone t o crises. T o maintain a dem ocratic constitutional

form of government in the face of the combined pressures of the capitalisteconomic market, the challenges of new fo rms of social modernization, the ever-growing fluidity of cultura l trad itions is an extremely difficult task. To even havea chance of succeeding a t this task, i t is essential that polities allow in their m idstthe formation of an independent public sphere in which questions of identity,legitimacy and sovereignty can be perpetually debated and discussed. Onlythrough the perpetual asking and answering of the relevant questions throughpublicly accessible channels c an new identities com e to th e fore, delegitimizationprocesses be aired a nd the mean ing of sovereignty be re-established.

Of course, what is meant here is not a free-for-all constitutional discussionand even convention. Participation in the public sphere has its own rules; evenchallenging these rules, which may be an d often ar e exclusionary an d distortive,requires first respecting them.39 T he democratic public sphere is like O tt o N eu-raths boat: you c ann ot throw all the planks into the water a nd hope to be ableto stay afloat; a t any on e time, you can only thro w some planks overboard a ndstill continue to float. Likewise, you cannot participate in the democratic publicsphere if you d o not respect universal civil an d political rights; as a particip ant,

39 See Kenneth Bayness cogent analysis of some of the problems of circularity and conversationalconstraints, The Nornat ive Grounds of Social Criticism: Kant, Rawls and Habermas (New York:SUNY Press, 1992), p. 167 ff., and The LiberaUCommunitarian Controversy and Co mm unicativeEthics, Philosophy and Social Criticism, 14 (1988), 93-3 13.


23/24

22 SEYLA BENHABIB

however, you can challenge the very meaning, scope and legitimacy of rightswhich have allowed the process to unroll.40The ability of citizens of modern democratic polities to participate in suchprocesses requires us to think of their linguistic and epistemic capacities in amanner quite differently than that proposed by Jean-Franqois L y ~ t a r d . ~ ~uchparticipation in the demo cratic public sphere dema nds certain hermeneutic skillswhich can indeed yield lawfulness without the law (Gesetzmassigkeit ohneGe setz). Individuals must be ab le t o move thro ugh various levels of communi-cation w ith fluidity, they m ust be able t o sh ift levels of discursive reflection, theymust be able to challenge, to ironize, to play with, and to subvert establishedmeanings and modes of speech. The differend in politics does not just happen;only playful, resourceful and creative selves, who can also challenge and argue

40 See Claude Lefort, Democracy and Political Theory, trans. David Macey (Minneapolis: Univer-sity of Minnesota Press, 1988), p. 9 ff .41 In an illuminating analysis, Wolfgang Welsch has dealt in depth with Lyotards philosophy oflanguage and has nam ed it Lyotards Sprachobjektivismus (linguistic objectivism ), seeW. Welsch, Unsere postmoderne Moderne (Weinheim: Acta H umaniora, 1988), p. 250 ff . This isthe view that the linkage of phrases in language just happens; that genres of discourse occur; they

fil l the void. The source of multiplicity, plurality, the play of meaning in language are not languageusers-they are pa rt of an anthropomorphic illusion. All this takes place beyond the exercise ofspontaneity and phronesis by individual actors. The following passage from The Differend is re-markable in this respect: O u r intentions are tensions (to link in a certain way) exerted by genresupon the addressors and addressees of phrases, upon their referents, and upon their senses . . .Thereis no reason t o call these tensions inten tions or wills, except for the vanity of ascribing to o u r accountwhat is due to occurrence (das Ereignis) an d to the d ifferend it arouses between ways of linking un toi t (p . 1 3 6 ) .I t is hard to make sense of th is self-effacing objectivism that attribu tes all creativity in languageto a quasi-metaphysical category of happ ening (da s Ereignis) while robbing language-in-use of th atdimension of play, meaning creation, experimentation and cross-contextual signification. We maynot want to reduce all that happens in language to the intentions of the speakers; un doubtedly inlanguage intentions are rediscovered, recovered and constituted. The intentional act of a rationalagent does not stand behind every language act; for that speech act may be the very process throughwhich the language user discovers, uncovers, recovers her intentionality in the first place. Thedichotomy with which Lyotard confronts us is wrong: either the subjectless Ereignis of languageor the Cartesian myth of a perfectly self-transparent subject. Precisely though if we want to accountfor those phenom ena in language which Lyotard also focuses upon-the new creation of meaning;the forcing down of established idioms; the articulation of new modes of saying and doing thingswith words-we mus t move to a different view of subjectivity an d of the subject and language user.Wolfgang Welsch puts this very well: Lyotards linguistic objectivism and his anti-anthropologicalposition . . . prove to be untenable, as soon as we consider not static but dynamic phenomena, assoon as we try to decide not am ong available claims but we try to build new linguistic forms. Suchphenomena are not to be grasped on the basis of any kind of objectivism. Wh at w e need here is atheory in which humans are not viewed merely as carrying out already assigned positions in a game;what we need is a theory that views humans as inventors of new games (which does not mean: ascreators ex nihilo) (W. Welsch, Unsere postmoderne Moderne, p. 251).Between Lyotards meta-physics of power an d his late H eideggerian objectivism an irresolvable conflict exists: whichever sideof the dilemma on e grasps, either the thesis of the absolute heterogeneity of language games or thethesis of the absolute irrelevance of anthropocentrism to account for language must be sacrificed. IfLyotard wants so much as to retain the plurality, multiplicity and diversity of phrase regimens andgenres of discourse, he will have to attribute to language users more spontaneity, imagination, andthe creative exercise of judgment than he is wont to do; if he retains his thesis of Sprachobjekt-ivismus then he will have to give up the mu ltiplicity, plurality, and irreducibility of language gam eswhich he also wants to hold onto.


24/24

DEMOCRACY & DIFFERENCE 2 3

for principles from a hypothetical m oral point of view, can operate in the publicsphere an d utilize its capacities.

The dem ocratic public sphere an d processes of deliberation a nd c ontestationwhich occur in them are doubly contingent: on the one hand , it is a historicallycontingent process of development which allows the formation of such a spherein some polities and not in others; secondly, i t is also contingent whether indi-viduals in a polity have the cultural and moral resources to become full partici-pants of a discursive or delibrative public sphere. No matter how counterfactualand contingent these processes may be, without the institutionalization of someform of free public sphere successful democracies are inconceivable. For in aworld without metaphysics, identity-formation, constitutional sovereignty anddemocratic legitimacy require processes and channels of deliberation, contesta-tion, argument and subversion which only the interlocking net of many publicspheres can allow.

I agree with Jean-FranCois Lyotard that the task of philosophical politicstoday is the conceptualization of new forms of association which will let thedifferend appear in their midst. For reasons which I have outlined in thisarticle I consider the deliberative democracy42 approach to be more suited forthis task than the double gesture which affirms and deconstructs republicanfoundationalism.

42 I have pursued aspects of the deliberative democracy model in Deliberative Rationality andModels of Democratic Legitimacy, delivered to the American Philosophical Association AnnualMeetings, Washington, DC, September 1992.

Documents

Benhabib 94 Metapoltics Derrida Lyotard