Derrida on Decision

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Between Justice and Legality: Derrida on DecisionAuthor(s): William W. SokoloffSource: Political Research Quarterly, Vol. 58, No. 2 (Jun., 2005), pp. 341-352Published by: Sage Publications, Inc. on behalf of the University of UtahStable URL: http://www.jstor.org/stable/3595634 .

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Between Justice and Legality: Derrida on Decision

WILLIAM W SOKOLOFF, UNIVERSITY OF SOUTHERN CALIFORNIA; UNIVERSITY OF CALIFORNIA, IRVINE

Recent critiques of Jacques Derrida have misunderstood his contribution to political theory and dismiss his work as apolitical or nihilistic. In contrast to this trend, I argue that Derrida's concept of decision is the most explicitly political moment of deconstruction. Through readings of "Force of Law" and Politics of Friendship as well as some of his other writings, I argue that Derrida's re-conceptualization of decision expands the way politics is conceived and enables a robust critique of Rawls's consensus liberalism. Decision energizes citizenship through strategic interfaces between justice and law and foregrounds respect for others in order to make politics more ethical and lively. Derrida does not paralyze political action by taking the ground away at the moment of action but makes political actors more reflective and responsible by shaking up the stability of all political foundations. Not only have critics of Derrida overstated their case but liberals could learn something from his writings on politics.

In this essay I summarize and offer an interpretation of

Jacques Derrida's concept of decision (Derrida 1990: 947, 961-967; 1992: 80-81; 1993a: 15, 17; 1995: 53-

81; 1996: 84; 1997: 67-69). More so than any other con-

cept, decision reveals how deconstruction engages the question of politics in ways that have been overlooked by his critics and advocates. Analyzing decision in Derrida's work also promises to shed new light on the problem of political judgment since decision and judgment imply each other. The elucidation of decision is therefore relevant for scholars explicitly engaged with Derrida's writings on politics as well as for those grappling with the question of judgment insofar as decision clarifies the conditions under which politics and judgments are possible.

In my reading, decision is Derrida's attempt to redefine the political core of politics in order to produce a reflective and vibrant liberalism based on the interaction between legality and justice conceived as respect for others. As opposed to the view that he rejects law and suspends action in an aporetic conception of justice, decision creates an interface between justice and legality in order to energize citizenship and make political action responsible. Hence, I contest the accusation made by Derrida's critics that his writings on politics are irresponsible, but I acknowledge that decision may be at odds with current modes of political practice. Even in the face of its unconventionality, liberals could learn something about politics from Derrida's decision. Specifically, the interaction between justice and law in his political writings enables a critique of Rawls's consensus liberalism and points to a new ethical-political horizon that should be taken seriously.

NOTE: I would like to thank Subrata K. Mitra and three reviewers for their comments on earlier drafts of this manuscript.

Political Research Quarterly, Vol. 58, No. 2 (June 2005): pp. 341-352

DECONSTRUCTION AND POLITICS

Critiques of Derrida's work are plentiful. Turning politics into nothing, immobilizing political action and judgment, and rendering the traditional vocabulary of politics unus- able are only some of the accusations directed against his enormous oeuvre. He generates a great deal of nervousness in the academy about the impact of his writings on ethics and politics and has become a sort of post-structuralist Anti- Christ, interpreted as nihilistic, relativistic, and potentially authoritarian. It becomes immediately clear while reading his texts on political themes that Derrida does not approach politics in a conventional way In terms of his methodology, he suspends the traditional meanings of fundamental political categories and engages in an unrelenting philosophical questioning that forces them to their conceptual limit result-

ing in aporia, impossibility, and paradox. He even suggests that questioning politics may not be political:

The question of the political, for this question is not nec-

essary, nor in advance, political. It is perhaps not yet or no longer thoroughly political, once the political is defined with the features of a dominant tradition. (Der- rida 1997: 28.)

The fact that deconstruction took inspiration from the

writings of Martin Heidegger was always a source of contention given his brief collaboration with the Nazi regime and his subsequent silence about his involvement. Compli- cating this matter further, "L'affaire de Man," or the revelation in 1987 that Derrida's friend and fellow practitioner of deconstruction Paul de Man (1919-1983) wrote collabora- tive war-time articles between 1940 and 1942 in the Belgium newspaper Le Soir supported the suspicion that deconstruction, despite its persistent claim that it was on the side of progressive political ends, was a reactive ideology willing to lend a hand to political evil. Deconstruction quickly made academic headlines as an opportunistic criminal ideology.

341



342 POLITICAL RESEARCH QUARTERLY

When specifically confronted with the question of the political potential of deconstruction in an interview with Richard Kearney in the 1980s, Derrida admits that he finds himself in a position of "permanent uneasiness" (1984: 120) since a gap separates deconstruction from his own modes of conventional political participation. Over the last 20 years, he has taken up explicitly political themes in an astounding number of publications. Critics continue to assert that deconstruction suffers from a political and ethical deficit since it has nothing programmatic to offer. Other commen- tators insist that deconstruction is both ethical and political but they are ultimately unable to say precisely how in a con- vincing way (Bennington 2000; Beardsworth 1996; Howells 1988; Critchley 1992, 1999).1 Despite increasing controversy, Derrida still walks a tight rope between foundationism and anti-foundationism. The charges that his work is

apolitical, nihilistic, or even worse continue to be leveled (Lilla 2001; Berman 1990; Pickstock 1998; Fraser 1989).2

DECISION

The concept of decision is Derrida's response to his critics and it occupies a prominent place in his corpus. As I have suggested, it is the key to understanding his approach to politics and signals his attempt to come to terms with the problem of political judgment. I shall demonstrate that Derrida's decision makes politics ethical and lively because it widens the field of politics and opens it to the possibility of less violent articulations but without putting an end to contestation. In his re-signification of decision, he illuminates the limits of the legal order by taking decision outside the domain of use in order to forge a new horizon of political possibility.

Derrida's discussion of decision proceeds through negative presentation. He builds decision through a critique of the conventional conceptualization of decision. Decisions are generally viewed as the result of rational calculation (Rawls 1993: 212). Information is analyzed and options are formulated in accordance with the ultimate standard of

A small number of political theorists including Honig (1993) and McCormick (2001) have written positively about Derrida's work. In spite of the growing interest in his political texts, Derrida remains a marginal figure for the field of political theory.

2 Berman (1990: 6) states: "There has been nowhere a positive contribution by deconstruction to the radical vision." Berman's certainty about what counts as the radical vision leads him to condemn Derrida's work on politics. In order to understand Derrida's work, we have to rethink fundamental assumptions about politics. Until Berman is prepared to do that, he is not likely to move beyond his hard-line stance against Derrida. Pickstock (1998: 178) claims that Derrida's work on politics shows signs of a "reactive compliance with political authority" Given Derrida's claim that all authority is unable to ground itself, his radical critique of the status quo, and his orientation to the future, Pickstock's claim is inaccu- rate. Fraser (1989) claims that Derrida's reliance on transcendental thinking results in a political deficit when it comes to telling us which practices and institutions are morally defensible. For Fraser, he is unable to tell us what type of attitude we should adopt to the status quo. As I shall demonstrate, Derrida's work provides us with the standard of lesser violence to assess actual institutions and he promotes a critical attitude toward the status quo.

rationality: cost-benefit analysis. Once the costs and benefits have been determined, a conclusion, or decision, is reached based on the calculation of overall utility. In the legal sphere, judges decide; they apply the law to particular cases. Derrida's take on decision departs from these approaches. He questions the traditional concept of decision based on a self-conscious subject who calculates and then decides:

We ask ourselves what a decision is and who decides. And if a decision is active, free, conscious and willful, sovereign. What would happen if we kept this word and this concept, but changed these last determinations? (Derrida 1997: xi.)

For Derrida, a decision has not been made when judges apply the law to a particular case. In order for a decision to be a decision, judges must do two incompatible things at the same time. They must enforce the law in a non-arbitrary way: "The law applies equally to all." And yet, judges must respect the ways in which each case is different: "Each case is other, each decision is different and requires an absolutely unique interpretation, which no existing, coded rule can or ought to

guarantee absolutely" (Derrida 1990: 961). Hence, in order for a decision to be possible, it must be impossible; judges cannot know in advance what to decide. If they already knew what to decide in particular situations, then they are not

making a decision. The conditions for a decision must prevent a decision from being easy or fast. They must break from the past and they cannot be based entirely on reason or

knowledge.3 Quoting Kierkegaard, Derrida claims "the moment of decision is madness" (1990: 968). The incompatible commands in the moment of decision test the limits of the legal order because they demand that decision be conceived as something more than the application of the law.

MYSTICAL FOUNDATION OF AUTHORITY

Exposing the limits of the legal order was clearly one of the over-arching goals of Derrida's defense of deconstruction and commentary on a text by Walter Benjamin in "Force of Law: The 'Mystical Foundation of Authority,"' presented at the conference "Deconstruction and the Possibility of Jus- tice" in 1989 at the Benjamin N. Cardozo School of Law in New York. His defense takes the form of a response to the charge that deconstruction destroys the possibility of law and justice. It is not surprising that his most sustained discussion of decision occurs in this text because it is generally understood as a legal category concerning the universality of law in relation to the particularity of a case.

In "Force of Law," Derrida discusses foundations, authority, the mystical, law, justice, aporia, and decision. Not only does he engage politics at the most simple and decisive loca- tion, i.e., foundations, but he rethinks the meaning of politics through an examination of an expression Pascal inherited

3 Like Kant (1997), Derrida delimits knowledge to create a space for

practice.




BETWEEN JUSTICE AND LEGALITY: DERRIDA ON DECISION 343

from Montaigne: "Mystical foundation of authority." A close

reading of this statement, he claims, produces a "modern critical philosophy" (1990: 941) and a conception of justice both critical and affirmative that serves as a non-totalitarian, non-reductive, and practical mode of valuation. Here, justice comes into view as a critical temporal practice. It is critical because it holds political action within specific limits; temporal because sensitivity to the specificity of each moment is paramount; practical because freedom is its essence. In order for justice to be enacted, however, decisions must be made.

Decision emerges as one of the most important problems in "Force of Law." How are we to conceive the ground for decision? No one would accept the validity of a decision if it could not be justified. Hence, decisions must have a

ground because this makes them legitimate. Conceptualiz- ing the ground of decision, however, can only go so far because all ground is arbitrary: "Mystical foundation of

authority."4 The ultimate ground of the legal order is

ungrounded. A paradox haunts all founding moments. The act of founding is itself unfounded. They are logical impos- sibilities; something akin to a woman giving birth to herself. For Derrida, there is nothing that could serve as an incon- testable point of support for foundations. Appeals to natu- ral law, self-evident truths, or God attempt to eliminate this

problem insofar as they attempt to silence discussion about the foundation.5 They are invoked in order to deny the

inescapably arbitrary essence of foundations.6 Derrida does not construct a new myth that conceals the

foundation but ventilates the paradox latent in all foundations. For him, foundations institute groundless grounds and disqualify any critique of founding violence since they do not recognize pre-existing law.7 The moment of founding

4 For a different viewpoint, see Rawls (1993: 431): "Political authority is not mysterious."

5 See Rousseau (1988: 162-3): "Discovering the rules of the society best suited to nations would require a superior intelligence that beheld all the

passions of men without feeling any of them; who had no affinity with our nature, yet knew it through and through; whose happiness was inde-

pendent of us, yet who nevertheless was willing to concern itself with ours; finally, who, in the passage of time, procures for himself a distant

glory, being able to labor in one age and find enjoyment in another. Gods would be needed to give men laws." Derrida (1986: 12) identifies a similar problem in reference to the "Declaration of Independence": "For this Declaration to have a meaning and an effect, there must be a last instance. God is the name, the best one, for this last instance and this ultimate signature." Honig (1993: 95) persuasively elucidates Derrida's

essay on the "Declaration of Independence" and fruitfully brings his work into dialogue with Hannah Arendt: "What Jacques Derrida says of

language or writing holds well for Arendt's account of political action." I build on Honig' work but, in contrast to her, I show that Derrida has an

original and provocative account of political action of his own. 6 Plato's (1992: 90-93) multiple lies at the foundation of his ideal state are

the paradigmatic case. 7 Since all foundations are ungrounded, Derrida clearly eliminates the

capacity to differentiate between different foundations. However, regimes open to the permanent transformation of their foundations are

superior to ones that treat their foundation as a sacred absolute and remove it from public debate. The willingness to interrogate political

is "neither legal nor illegal" (1990: 927) and this paradox is the aporetic origin of all authority Since foundational

authority gives birth to law, which is itself ungrounded, law is a lesser or greater form of violence. Legality, it seems, cannot escape contamination with illegality; it is impossible for authority not to be arbitrary. As Cornell (1992: 167) puts it, if legal orders erase their mystical foundation of

authority and masquerade as justice, they are "rotten."

Regimes that conceal their origin in violence eliminate the basis for their own contestation.

It would be easy, but ultimately incorrect, to conclude that opening foundations to contestation in the moment of decision destroys authority and leads to anarchy. Perhaps it would be safer for regimes to deny that their origin and

authority is paradoxical. It might save everyone a lot of trouble. But it would not be just. That authority lacks

ground does not lead to chaos but is, in the words of Der- rida (1990: 943-45), "a stroke of luck for politics, for all historical progress." The deconstruction of the aporetic structure of law is enacted in accordance with justice.8 Jus- tice is a response to the call of the other. And yet, deconstruction is indebted to the law it deconstructs: "It is this deconstructible structure of law . . . that also insures the

possibility of deconstruction" (Derrida 1990: 945). Derrida does not fulfill this debt by bending his knee to law and

authority. Rather, he exposes the violence lurking in political foundations and provokes a permanent destabilization. But Derrida does not simply want to destabilize foundations. He goes beyond the claim that everything is simply contingent. Instead, he argues that this instability opens regimes to the possibility of practicing law in less violent

ways. Deconstructive destabilization is a chance for positive change, and yet, a chance is also a risk: "Without the

possibility of radical evil, of perjury, and of absolute crime, there is no responsibility, no freedom, no decision" (Der- rida 1997: 219).9

Embracing risk in the realm of politics is not equivalent to nihilism. In fact, Derrida interrogates foundations in the name of political flexibility that operates within strict ethical limits. The first moment of political flexibility results from a political order's consciousness of its origin in violence. The second comes from its effort to minimize its

foundations keeps the political field open to the possibility of lesser violence and more just articulations. For Derrida, what matters is not that the original foundation was ungrounded but that the practices that follow the instituting moment foreground this original indeterminacy in order to encourage continual political transformation.

8 Derrida conceives justice as incalculable, impossible, and infinite whereas law is a matter of calculation, rule, and norm. As we shall see, Derrida insists on the need for a relation between justice and law, even if justice is never reducible to law.

9 Rawls (1993: 157) is clearly more conservative than Derrida on the

question of foundations. Rawls wants to remove from the public agenda "the most divisive issues" as well as the basic principles of justice as fairness because it is too risky; it poses a threat to the stability that he seeks. See Alejandro (1988: 11) for a critique of the closure in the foundations of justice as fairness.

343 BETWEEN JUSTICE AND LEGALITY: DERRIDA ON DECISION




reliance on violence in everyday practices.10 Derrida envisions a political order motivated by a conception of justice over and beyond law. Such a regime would strive to practice law in ways that are less arbitrary. Law is less arbitrary when it acknowledges the contingency of its own commands. For Derrida, justice is the condition of possibility for the ultimate minimization of the violence in law that repeats itself in the enforcement of law. First and foremost, decision is a

question of justice. Derrida begins his discussion of justice by imagining the

possibility of non-appropriative relations with the other.1 In contrast to the claim that deconstruction destroys all ethical standards, responsibility to the other sets deconstruction into motion. For Derrida (1984: 118), "deconstruction is a

positive response to an alterity which necessarily calls, sum- mons or motivates it. Deconstruction is therefore a voca- tion-a response to a call." Responsibility to the other, however, cannot be completely fulfilled. That we cannot know whether our actions are just is precisely what fuels the continual aspiration for justice. The fact that justice cannot be an

object of cognition is what prevents the forced identity of law with justice. Collapsing justice and law forces citizens to sur- render their critical faculties and identify with the given. Dis- sent, then, is a necessary pre-requisite of responsibility Indeed, Derrida undermines the assumption that the present order could ever be just.'2 Set into motion by justice, draw-

ing attention to the mystical foundation of authority is therefore an act of political resistance that affirms a conception of

justice over and beyond law and manifests itself as political critique. Law is present in rules, regulations, statutes, prece- dents, legal decisions, and majority opinions. But justice is never present; it is always to come. In order to reinforce the fact that justice is absent from all legal orders, Derrida (1990: 935) refers to it with indirect and negative statements: "One cannot speak directly about justice, thematize or objectivize justice, say 'this is just' and even less 'I am just,' without

immediately betraying justice, if not law (droit)."'3 His conception of justice takes an aporetic form because aporias are never present. Aporias also signal an absence of rules, defin- itive criteria, or grounds. They are moments of crisis: "Aporetic experiences are the experiences, as improbable as they are necessary, of justice, that is to say of moments in which the decision between just and unjust is never insured by a rule" (947). Aporetic experiences, or crisis situations,

10 Benjamin (1996: 244) claims that "when the consciousness of the latent

presence of violence in a legal institution disappears, the institution falls into decay." Rubenstein (2002: 77) suggests that Derrida rejects community This claim overlooks Derridas interest in friendship and his conception of

justice as relational. 12 Derrida (1994: 175) claims, "Present existence or essence has never

been the condition, object, or the thing of justice." A similar notion is at work with Derrida's idea of "democracy to come" (1997: 306). Democracy is never present but something toward which we must per- petually strive.

13 Plato (1992: 182) faces a similar problem in relation to the good. The

good is negative. It is beyond and superior to being in rank and power.

call for decisions. Decision, in turn, provokes the crisis that

engendered decision. Since it lacks a rule for guidance, decision exacerbates the experience of insecurity. Anxiety, then, mediates the duality between crisis and decision. Decision, finally, is the place where the incalculable and the calculable

pass through each other: "Incalculable justice requires us to calculate" (971).

DECISION AND INDECISION

The network between decision, crisis, and anxiety does not signal a break with legality Even though decision must free itself from legality, this does not mean that "everything is permitted." Contra Lilla (2001: 174, 184, 190), Derrida is not advocating decisionism.l4 He does argue that the basis for making a decision has become problematic. That deci-

sionmaking has become problematic, however, is not equivalent to subjectivism. In fact, Derrida (1997: 83-171) dis- tances himself from this type of decisionmaking in his

critique of Carl Schmitt. Derrida claims that one must decide without the help of rules but decisions nonetheless have a relation to law.

To say that a legal order exists is a meaningless and irrelevant statement unless the law is actually enforced. The enforcement of the law requires decisions because they bring law into contact with cases. But the generality of law is fundamentally heterogeneous to the specificity of the case. Mediation between these two realms in the name of lesser violence is the work of decision. As opposed to the

application of the law, Derrida's decision forces law to reinvent itself so that it more appropriately fits the particularity of specific situations in less violent ways:

For a decision to be just and responsible, it must, in its

proper moment if there is one, be both regulated and without regulation: it must conserve the law and also

destroy it or suspend it enough to have to reinvent it in each case, rejustify it, at least reinvent it in the reaffirma- tion and the new and free confirmation of its principle. (Derrida 1990: 961)

Decisions are simultaneously legal (law-conserving) and

extra-legal (law-destroying). Moments of crisis call for a decision, yet decision must lack the support of codified rules. This is not the rejection of legality because decisions conserve the law. But, as the quote above illustrates, con-

serving the law is not equivalent to following pre-established rules. Thus, decision re-invents the law in a non-reac-

tionary way. It is impossible to program in advance and an act of invention that brings the legal order to its limit. For

14 Decisionism is extra-legal action that is freed from the constraints of reason. On this point, Lilla comes close to collapsing the work of Der- rida and Schmitt in order to discredit Derrida. Arguably, Derrida has more in common with Kant (1997) including the affirmation of respect, the centrality of freedom, an imperative form for justice, and the distinction between right and justice.





Derrida, the suspension of rules at the moment of decision-undecidability-does not lead to license but is the possibility of responsibility

At first glance, it would seem that a concept like undecidability would negate the possibility of ever making a decision, which would ultimately annul responsibility. Indeed, would- n't cognitive flip-flopping prevent anything from ever hap- pening at all? For Derrida, undecidability is not equivalent to paralysis but it is a condition of possibility for political action. He argues that the condition for decision is simultaneously the condition of its impossibility and that situations charac- terized by undecidability demand a decision. If we knew in advance what to decide, it would not be necessary to make a decision. By definition, decisions must be difficult or impossible in order for them to be a decision at all. Truly political moments are always plagued with uncertainty and decisions never completely surpass undecidability According to Der- rida (1990: 965), "the undecidable remains caught, lodged, at least as a ghost-but an essential ghost-in every decision, in every event of decision."

Undecidability, or the mystical foundation of authority, exposes the violence embedded in the founding of all institutions. Acknowledging this violence is significant because it opens them to the possibility of new articulations grounded on less arbitrary modes of authority. Authority is less arbitrary when it supports its own radical critique and affirms the contingent character of its foundation. Even if it is impossible to find a space beyond undecidability, decisions premised on annulling it are not free and responsible. Undecidability should haunt decisions before and after they are made. This is what the reliance on rules tries to eliminate. Given the paradoxical character of the founding moment, it would be irresponsible to have a rule that would repudiate the moment of indecision that should precede each decision.l5 When one applies a rule, one creates nothing that is new. One merely imposes a stale past onto the future that annihilates the possibility that is promised by it. More importantly, if rules are imposed without acknowledging their contingent origin they are violent and reac- tionary. Consciousness of the original contingency of rules, then, opens the door to the possibility of less violent decisions. As opposed to maintaining the political order, decision transforms it. Hence, decision is an act of invention that cannot be grounded on anything that precedes it. That makes decision difficult.16 They always involve an "anxiety- ridden moment of suspense" (Derrida 1990: 955).

15 Derrida (1992: 72) states: "Any invention of the new that would not go through the endurance of the antinomy would be a dangerous mystifi- cation, immorality plus good conscience, and sometimes good conscience as immorality."

16 The problem of decision hinges on time. Law is abstract. Decision forces law to reinvent itself in accordance with the requirements of particular situations so that law is as responsive as possible to what is special about particular cases. No two cases are the same. In this sense, interpretation or enforcement of the law should not merely maintain, reinforce, or defend the status quo. In the moment of decision, the generality of the law has to alter itself in accordance with the particular situation.

Decisions are usually viewed as the prerogative of the subject. Through anxiety, Derrida deepens the crisis of decision by emptying out its meaning which forces the death of the subject. He undermines the assumption that subjects actually decide. If your identity is fixed, then your decision is only the repetition and extension of your identity. It is not really a decision. If your identity is grounded on the hatred or love of a particular category of people, then this eradi- cates the indeterminacy that is the foundation for decision. Decision grounded on the maintenance of identity, then, negates decision. Subjects certain of their identity do not decide. In fact, decision cannot be controlled, appropriated, or transformed into a technique that fits into the hand of the subject as master.

Then, who or what decides? There is no who or what behind the decision. It is without subject, intention, and object:

The decision, if there is such a thing, must neutralize if not render impossible in advance the who and the what. If one knows, and if it is a subject that knows who and what, then the decision is simply the application of a law. In other words, if there is a decision, it presupposes that the subject of the decision does not yet exist and neither does the object. Thus with regard to the subject and the object, there will never be a decision. (Derrida 1996: 84.)

In this quote, Derrida breaks the relation between decision and the self-identical subject in order to remove decision from the sphere of anything determinate. For him, the invention of the decision is simultaneously the invention of a new subject who is then re-invented by the next decision that splits apart the subject in the ensuing decision. All decisions immediately alter the subject. The sovereign subject cannot make a decision because its need for identity prevents it from responding to the other in ways that may necessitate its own transformation. The subject with a fixed

identity never really decides. For this reason, decision "must surprise . . . the very subjectivity of the subject" (Derrida 1997: 68). In the act of decision, we must not know who we are or how we are going to decide: "Decision is unconscious- insane as that may seem, it involves the unconscious and nevertheless remains responsible" (69).

In order for decision to be possible, the purposive subject must be replaced by one capable of suspending, conserving, and affirming legality and itself in a non-programmatic way. For Derrida, only such a subject is capable of deciding. The issue here is not the lack of the subject for decisionmaking but the type of subject capable of deciding. Derrida conceives decision in a way that necessitates the interruption of the subject.17 An interrupted subject is not the negation of the subject but one newly conceived. That is to say, the subject who decides must be oriented to doing justice to the other as opposed to maintaining its self-identity.

17 For a discussion of interruption as the condition for justice and the relation to the other see Derrida (1994: 28).





CRITIQUE OF DECISION

Motivated by the effort to redefine the political core of

politics, decision necessitates fundamentally re-conceiving the relations between law, justice, decision, foundations, authority, and the subject as well as the specific content of each category. In response to the way Derrida challenges the basic vocabulary of politics, a growing -number of scholars have criticized him including Connolly (1995), Moran (2002), and Lilla (2001).

Connolly affirms the responsiveness to the other that motivates deconstruction.18 And yet, Derrida is just too "transcendental" for Connollys late-modern sensibility He argues that Derrida "attempt(s) to avoid implication in suffering or

injustice at all may have the effect of disabling him from eth-

ically responsive action in morally ambiguous contexts-that is, in most contexts" (Connolly 1995: 233). Although he is aware that deconstruction shakes up the norm for the sake of the margin, Connolly senses a retreat from politics in the name of moral purity. In my view, Derrida is trying to locate a middle ground that does not shun action but that makes it as responsible as possible. He does not reject law or com-

pletely suspend it but conceives it as operating with justice in the name of a lesser violence. Derrida realizes that there is no

escape from the origin of law in violence. Therefore, he wants there to be something haunting the enforcement of law that

triggers constant invention so that the enforcement of it is never unproblematic.19 Connolly's assumption that Derrida tries to keep his hands clean when it comes to politics (flirt- ing with the transcendental) overstates Derrida's commitment to aporetic justice and underplays his affirmation of law in the name of a lesser violence.20

Another take on deconstruction and the question of decision can be found in Moran's (2002) recent article.21 Even

though Moran stages many of his objections as rhetorical

18 For Connolly (1995: 36), deconstruction "seeks to foment the experience of undecidability in areas where the correct decision now seems all too rational or obvious doing so to render us more responsive to those

aspects of alterity that escape current definitions of rationality, identity, and normality."

19 Do the haunting sensations that accompany decision lead to political paralysis? If I knew that I was going to be haunted by what I did, why would I ever act? Wouldn't it be easier to avoid action and thereby wipe one's hands clean of responsibility? There is no guarantee that deconstruction will not lead to political paralysis and irresponsibility. I inter-

pret being haunted by our actions, however, in an affirmative way. It is an important component of our moral development. If our actions were motivated solely by the need to be freed from the scrutiny of our conscience, I doubt that this would produce anything except an inflexible adherence to rules. The haunting feelings that accompany decision are not the precondition for paralysis but serve as positive encouragement for moral reflection.

20 As McCormick (2001: 416) puts it: "Derrida's ["Force of Law"] points to the fact that we must act with certain kinds of violence today but never rules out the possibility that we may do without violence altogether tomorrow."

21 Moran's (2002) critique of Derrida would be more credible if he made at least one suggestion as to how decision might be better conceived, especially since decision is the dominant theme of his article.

questions (87 of them), and even though he concedes that deconstruction has analytic prowess, he sees little ethico-

political value in Derrida's work on decision. For him, Der- rida's work on ethics is "the final stage in what has always been something of a rearguard action" (109).22 Concerning decision, Derrida risks "leveling all qualitative distinctions"; and the result of decision is "ethical impotence" (118; 124).23 Moran's charge that Derrida destroys the capacity to

distinguish between decisions, however, is incorrect because Derrida has clear standards to evaluate decision-

making including respect for others, the extent to which foundations are opened to contest in the name of more just political arrangements, and less violent articulations of the law in the moment of decision. Moran's charge that decision leads to ethical impotence only sticks if one assumes, like

Moran, that Derrida must offer a program in order to qual- ify as a political thinker. Since this misconstrues the import of Derrida's work on decision, Moran accuses Derrida of

something that Derrida himself repudiates as incompatible with his mode of theorizing.

Lilla (2001) argues that if reason does not hold decision in check, Derrida annihilates responsibility. Hence, there is a proto-fascist moment and politics of pure will latent in deconstruction. Without the stable ground of reason, decision would be the result of an emotional storm. After all, Derrida claims that the moment of decision is madness. Does not leaving the field of decision open invite exploitation by the worst forms of political evil?24 Advocating unde-

cidability in such contexts would be catastrophic. For Derrida, there is no guarantee that rules grounded on

reason are always just. Following rules could merely be a ruse for avoiding responsibility. Derrida's qualified rejection of decisions operating strictly according to reason puts pressure on law to be more flexible in the name of the other. Hence, a non-appropriative respect for others serves as the ethical limit beyond which decision cannot pass.25 Since

respect for the other depends on the partial suspension of

legality, which Derrida acknowledges is not without risk, he

22 Although it could be called "rear-guard" action, Derrida's work on politics responds to the charge that he destroys law and justice. That it has been articulated in the wake of the de Man and Heidegger controversies does not subtract from its significance, as Moran suggests.

23 For Moran, deconstruction leads to ethical impotence because Derrida

destroys the capacity to make qualitative distinctions between different decisions. Derrida does not give us any guidance as to what we should do in particular situations. Derrida just tells us that decisions are difficult and impossible.

24 Lilla (2001: 174) states: "The neutralization of all standards of judgment . . leaves these fields of thought open to the winds of force and

caprice." 25 Does Derrida create any standards to distinguish between modes of oth-

erness to affirm or criticize? In the words of Derrida (1989: 55): "Let-

ting the other come is not inertia open to anything whatever." Although he does not give any programmatic guidelines, the authoritarian or fun- damentalist presuppositions of those who seek to put an end to the possibility of the coming of additional others should be publicly destabi- lized. Contra Fraser (1989), that this takes place on a relatively high level of abstraction does not make his critique any less relevant.

POLITICAL RESEARCH QUARTERLY 346




cannot rule out the possibility that the other could still be violated. Decision as program, technique, rule, however, is the a priori destruction of the other.26

Given the centrality of the other in Derrida's thinking and the ethical limits imposed on decision, however, Lilla's claim that there is a "politics of pure will" in Derrida's "dark" and "forbidding" writings (2001: 190) cannot be supported. As I have demonstrated, Derrida does not reject law but puts pressure on it to be something more than maintenance of the dominant power relations of the community. As we have seen, justice motivates his critique. Lilla is clearly inattentive to the ethical dimensions of Derrida's writings.

Decision does not mirror traditional ways of thinking about political action that assume the primacy of the calcu- lating and willful subject as the locus of responsibility. The ethical relation to others has priority over the sovereignty of the subject. And yet, decision does not signal a break with the current political order.27 It is simultaneously inside and outside the system. Decision suspends legality and affirms it at the same time. This dual allegiance raises the stakes of responsibility and is a strategy that prevents Derrida's work from being too easily assimilated into dominant ways of thinking about politics.28 It allows him to maintain a critical distance from the field of politics in order to intervene in unexpected ways: "Every culture needs an element of self- interrogation and of distance from itself, if it is to transform itself' (Derrida 1984: 116).29 The practical implementation

26 The opposition between programs and non-programmatic approaches to politics is rigid. Habermas (1999: 257) offers a useful insight that shakes up this opposition: "Law is better understood as a functional

complement to morality. As positively valid, legitimately enacted, and actionable, law can relieve the morally judging and acting person of the considerable cognitive, motivational, and organizational demands of a

morality based entirely on individual conscience. Law can compensate for the weaknesses of a highly demanding morality that-if we judgefrom its

empirical results-provides only cognitively indeterminate and motivation-

ally unreliable results" (emphasis added). Habermas may be right. The empirical results of law, however, are not always more reliable than the outcome of action motivated by morality given the contingency often involved in the implementation of the law (i.e., interpretation of the

meaning of the law and legal discretion). As long as the approach to rules is non-formulaic and compatible with freedom, Habermas's position may represent a defensible middle ground, one that Derrida himself also advocates at his most lucid moments. As we saw with Derrida's

approach to law earlier, critics who claim that he rejects law have

simply overstated their case. 27 See Derrida (1982: 135). For him, the result of the belief in an absolute

break: "Inhabiting more naively and more strictly than ever the inside one declares one has deserted."

28 Derrida (1993b: 201) states, "Sometimes one prefers to remain alone, to not be read or understood, rather than to be assimilated too fast."

29 In terms of Derrida's intervention into the field of politics, he interro-

gates and radicalizes the basic terms of politics so that the range of political possibilities is more clearly illuminated. He unmasks modes of violence hidden in appeals to common sense, nature, or normality in order to demonstrate how such thinking excludes and dominates the other as it proclaims itself to be moral, just, and responsible. Even if Derrida's image of decision is not reducible to a political position in the conventional sense, it helps us to reconsider what politics means today and how we might achieve less violent modes of living together.

of Derrida's political direction (legality and justice as respect for others) in today's politics may be difficult to imagine. That is precisely its value. It attunes us to the possibility of a political horizon grounded on strategic interfaces between

legality and justice. It is intended to stretch the limits of the liberal, or Rawlsian, political imagination.

RAWLS: DEPOLITICIZED LIBERALISM

Rawls's (1999; 1993) doctrine of justice as fairness has

captivated a large part of the field of political theory since the publication of A Theory of Justice and its subsequent reformulation in Political Liberalism. The ideals that Rawls affirms in his work are praiseworthy. He envisions a polity with high levels of tolerance and political stability. His rights based conception of liberalism is motivated by sensitivity to the plight of minorities. A deep egalitarian predisposition animates his thinking. For him, high levels of economic

inequality are politically unjustifiable. As Rawls puts it, "the arbitrariness of the world must be corrected" (Rawls 1999: 122). In accordance with these ideals, he constructs an

image of a stable political society with a neutral state that could achieve unanimous support, or an overlapping consensus, on political fundamentals.

In the original position of radical equality and behind the veil of ignorance that blinds subjects to their social, economic, or political locations, Rawlsian subjects rationally select principles of justice. Once they are established, they serve as a theoretical standard to measure the strengths and weaknesses of actual constitutional democratic societies.

According to Rawls, the basic principles of justice as fairness are neutral. They allow for many different reasonable con-

ceptions of the good to harmoniously coexist. Although the concerns that motivate Rawls's work are admirable, I have reservations about the vision of politics underwriting his liberal program. As I see it, the most contestable aspects of his theory spring from his will to consensus, his conceptualization of political foundations, and his view of democratic citizenship.30 Although Derrida's work allows us to see the limits of justice as fairness in a new light, there are also internal contradictions in Rawls's thinking that detract from its credibility and viability.

In Rawls's (1993: 157) universe, consensus is cemented into the political founding and overrides all other issues.

30 I define politics as situations of instability or indeterminacy when the terms and character of collective life are opened to the possibility of more just articulations. In order for these new articulations to remain

political, they must satisfy three criteria. First, they must not deny the

origin of their authority in violence, even a "lesser violence." This fore-

grounds the provisional and contingent basis of every regime. Second, political regimes must affirm their own permanent transformation because law is never identical with justice. Third, if they want to remain

political, political regimes must actively promote their own critique. Rawls's image of political society fails on all counts. The anti-political dimensions of his project are apparent in his effort to confine the terms of public discussion, his belief that it is possible for authority to be non-

arbitrary, his desire to remove the foundation of politics from the public agenda and his fear of conflict and critique.





Anything that triggers political conflict is excluded from the public sphere: "A liberal view removes from the political agenda the most divisive issues, serious contention about which must undermine the bases of social cooperation." Difficult issues may be interesting but, for Rawls, they are not the stuff of politics. They threaten consensus and must be excluded or contained in the private sphere. Politics is about tinkering, not controversy

The only truly political moment in Rawls's work, then, is

laying the ground for justice as fairness in the original position. Once the principles of justice as fairness are established, however, the political sphere is essentially closed. Efforts to re-open the foundation are a threat to political sta-

bility. The range of acceptable political issues is framed by principles that are not up for debate. Hence, citizens are prevented from pursuing those modes of civic involvement that would open the political sphere to real contestation. Given the imperative of consensus, the regime must protect its political founding from interrogation.

Narrowing the range of acceptable political issues exacts a high cost from citizens. Space for dissent is eliminated. The range of political possibilities is restricted to one (and only one) that will be fixed "once and for all" (Rawls 1993: 161). Once the principles of justice are instituted, only the support of the status quo is possible (Alejandro 1998: 144). For Rawls, all citizens affirm the same public conception of justice (1993: 39). Public discussion about alternative political possibilities is not necessary.31 Since a critical disposi- tion toward the founding moment of justice as fairness would risk destroying consensus, it is better to treat it as a monument before which one genuflects.

Rawls, however, does not purge all conflict from his model of politics in the name of consensus. Some level of reasonable disagreement is permitted in his liberal utopia. It arises from the "burdens of judgment." The causes of these burdens are formidable:

a. The evidence-empirical and scientific-bearing on the case is conflicting and complex, and thus hard to assess and evaluate. b. Even where we agree fully about the kinds of considerations that are relevant, we may dis- agree about their weight, and so arrive at different judgments. c. To some extent all our concepts, and not only moral and political concepts, are vague and subject to hard cases; and this indeterminacy means that we must rely on judgment and interpretation (and on judgments about interpretations) within some range (not sharply specifiable) where reasonable persons may differ. d. To some extent (how great we cannot tell) the way we assess evidence and weigh moral and political values is shaped

31 Mouffe (1996: 254) argues that this is the totalitarian moment in Rawls: "The rationalist defense of liberal democracy, in searching for an argument that is beyond argumentation and in wanting to define the meaning of the universal, makes the same mistake for which it criticizes total- itarianism: the rejection of democratic indeterminacy and the identification of the universal with a given particular."

by our total experience, our whole course of life up to now; and our total experiences must always differ. Thus, in a modern society with its numerous offices and positions, its various divisions of labor, its many social

groups and their ethnic variety, citizens' total experiences are disparate enough for their judgments to diverge, at least to some degree, on many if not most cases of any significant complexity. e. Often there are different kinds of normative considerations of different force on both sides of an issue and it is difficult to make an overall assessment. f. Finally, any system of social institutions is limited in the values it can admit so that some selection must be made from the full range of moral and political values that might be realized. This is because any system of institutions has, as it were, a limited social space. In

being forced to select among cherished values, or when we hold to several and must restrict each in view of the

requirements of the others, we face great difficulties in

setting priorities and making adjustments. Many hard decisions may seem to have no clear answer (Rawls 1993: 56-7).32

The only legitimate exercise of power that can result from these burdens is justice as fairness. Aware that the differences between comprehensive doctrines are ultimately irreconcil- able because of these burdens, Rawls (1993:58) embraces toleration: "The burdens of judgment are of first significance for a democratic idea of toleration."33 Toleration is clearly a

praiseworthy virtue. But what precisely is tolerated? Given the difficulty involved in the justifications of all

positions, the fact that the basic principles of justice as fairness are not open to contestation seems arbitrary, especially for a thinker who maintains that in his model "arbitrary authority has disappeared" (Rawls 1999: 429). Sword in hand, rationality rose up against these burdens and was vic- torious in the original position. It is important to note that the burdens of judgment are reasonable, as opposed to unreasonable, sources of disagreement.34 This distinction is

significant because reasonable disagreement contains the seed of consensus. But if we take a close look at the burdens, how is it possible to achieve consensus given these difficulties? In a post-original position situation, the burdens of

judgment could be embraced in the name of democratic idea of toleration since the political foundation is already secured. If the burdens were at work in the original position, however, the consensus that Rawls secures on basic

principles would be impossible to achieve.

32 It is striking that Rawls refers to these issues as burdens. I celebrate them as the necessary prerequisites for critical reflection.

33 Derridean respect goes beyond tolerance insofar as it involves openness to others based on the affirmation of the mystical foundation of author-

ity Tolerance is a necessary first step but is insufficient. Tolerance can

easily slip into passive and de-politicizing non-engagement with others or even repressed loathing for difference.

34 Unreasonable sources of disagreement include "prejudice and bias, self- and group interest, blindness and willfulness" (Rawls 1993: 58).





Rawls presupposes the consensus that his theory seeks to establish, and then he introduces the burdens of judgment in the name of toleration as a way to reinforce it. And yet, Rawls tolerates everything except the divisive issues that put his

overlapping consensus at risk. Reopening the founding to contestation is not tolerated. Arguably, fidelity to the burdens

justify returning to discuss foundational assumptions since more optimal arrangements might be possible. But opening the political foundation to discussion, for Rawls, is too risky. It would not produce the pacified and conflict free vision of

politics that he seeks. The burdens may allow for mild levels of disagreement but they also contain it at the most decisive moment: political foundation. The disagreement that Rawls permits in one moment is snuffed out in the next.

If Rawls's appeal to the burdens of judgment seems

disingenuous insofar as the founding moment of justice as fairness is somehow protected from them, his underlying notion of citizenship also leaves much to be desired. Even

though he claims "citizens learn and profit from conflict and argument" (Rawls 1993: lvii), he methodically closes

spaces for the types of dissent, conflict and argument that nurture democratic citizenship. If citizens with competing comprehensive doctrines happen to meet on the street in Rawls's liberal utopia, they nervously grimace at each other and then retreat to the private sphere, simply shrugging shoulders in silence during encounters. Both the immedi- ate impact and the intergenerational effect of Rawls's neutralization of public dialogue will produce a society of inar- ticulate shoppers on Prozac: "By taking Prozac, they may be able to alleviate their angst, which might be a disruptive force to the liberal order" (Alejandro 1998: 13). Citizens will not only be unable to contest abuses of power but they will be incapable of negotiating encounters with others in substantive ways.

Rawls's allergy to even mild modes of political conflict results in a de-politicization of politics under the banner of neutrality.35 He evacuates all political content from public discussion: "We try to bypass religion and philosophy's pro- foundest controversies so as to have some hope of uncover- ing a basis of a stable overlapping consensus" (Rawls 1993: 152).36 Much to his credit, Rawls acknowledges the great deal of indeterminacy of decision in the burdens of judgment

35 According to Rawls (1999: 342), "There is no way to avoid entirely the

danger of divisive strife, any more than one can rule out the possibility of profound scientific controversy. Yet if justified civil disobedience seems to threaten civil concord, the responsibility falls not upon those who

protest but upon those whose abuse of authority and power justifies such opposition. For to employ the coercive apparatus of the state in order to maintain manifestly unjust institutions is itself a form of ille-

gitimate force that men in due course have a right to resist" (italics added). The credibility of this statement is put into question by the fol-

lowing claim: "The duty of civility imposes due acceptance of the defects of institutions" (312).

36 Derrida's (1997) work on friendship is not comparable to Rawlsian consensus. The sterile sameness in Rawls's consensus liberalism is precisely what Derrida resists in his effort to rethink friendship in non-homoge- nizing ways that reserve space for singularity.

but this indeterminacy is somehow absent from his image of

political society. The indeterminacy of decision in Rawls is

mitigated by his de-politicization of political foundations. The indeterminacy of politics is precisely what Rawls seeks to expel from the political horizon. Political liberalism

purges politics from politics and encloses the political field under the terror of uniformity.37 The value Rawls ascribes to

pluralism is disingenuous. It is incompatible with the

imperative of unanimity on basic principles.

BETWEEN JUSTICE AND LEGALITY:

ANTIDOTE FOR JUSTICE AS FAIRNESS

Derrida's re-conceptualization of decision arrests the disenchanted liberalism that we see in the work of Rawls. Rawls's liberalism is disenchanted because he drains everything that revitalizes politics from his image of political soci-

ety. He excludes fundamental questions and controversies from the public sphere. There is no space for healthy political conflict.38 Liberalism needs the work of Derrida in order to recover politics from politics, to redefine the political core of politics as an experience of uncertainty and the ethical

imperative to respect the other, to overcome bureaucratic liberalism, to strip the illusion off of institutional decision-

making that masks politics behind the veil of consensus, to raise the stakes of responsibility through the strategic con-

vergence of law and justice. Grounded on a strategy of paradox, decision is Derrida's

attempt to fuse critical reflection to political action but without subordinating one to the other.39 This signals its limits while also illuminating its value; no theory is complete in and of itself. And yet, decision can produce a post-structuralist model of citizenship and a vibrant and radical liberalism based on the permanent interrogation of political foundations, the cultivation of respect for others, a critique of subjectivity, the affirmation of legality, and justice as a relational experience of the other beyond exchange and

revenge (Derrida 1994: 21-22).40 But how is a relation between justice and legality sustained?

Anxiety is the specific feeling that Derrida mobilizes to

bridge the gap (albeit incompletely) between justice and

37 Are there any points of contact between deconstruction and Rawls's

political liberalism? Derrida cultivates moments of indeterminacy in the name of a more just political society. Indeterminacy is not a burden for Derrida but gives a future to politics. The "burdens of judgment" are also a potential source of indeterminacy in the Rawlsian project. But Rawls circumvents their positive political potential and merely mobilizes them for the idea of tolerance. This is a missed opportunity for

politicization. New vistas of democratic citizenship are foreclosed in Rawls.

38 See Honig (1993: 126-161) for a discussion of Rawls's impatience with

politics. See Ranciere (1995: 104) for a critique of consensus politics: "The trouble is that racism is not the symptom but the disease-the disease, in fact, of consensus itself, the loss of any measure of otherness."

39 For a defense of the ethical significance of paradox, see Sokoloff (2001a: 776-77).

40 For Derrida (1994: 23), law and right stem from vengeance. Justice is the "an-economic ex-position to others."





legality. Contra Rawls, anxiety is valuable because it com- bines reflective hesitation with empowerment.41 Anxiety puts the correctness of our actions and fundamental assumptions into question. It also breaks the reliance on habit, heightens attentiveness, promotes learning, generates a deliberative space, and enables the mind to dream (Marcus 2002: 99-116). Taken in measured doses, anxiety is an unsurpassable reminder of the gaps in our identities and alters the subject in ways that render it more open.42 As Marcus (2002: 116) argues, "anxiety is the central emotion on which reason and democratic politics rests."

Once one begins to see how decision expands the way politics is conceived, challenges the consensus liberalism of Rawls, transforms the self in anxiety, attunes us to the ethical concerns that motivate it, and navigates the relation between law and justice in order to energize citizenship, we can see just how limited many critiques of Derrida's work actually are.43 As McCormick (2001) states, the "for or against" attitude in the academy in the 1980s and 1990s that is enforced by liberals and their critics has had unfortunate conse- quences on academic discussion. In such a climate, a text as complicated and provocative as "Force of Law" would have little chance of receiving a fair reading when readers are pre- occupied with labeling an author as either liberal or anti-liberal (422). Authors that pose questions in ways that elude

41 Rawls (1999: 110) states, "Judgment is likely to be distorted by anxiety" Although Derrida has not theorized anxiety in a sustained manner, it

plays a significant role in this thinking. For the relationship between

anxiety and revolution refer to Derrida (1994: 108-109); anxiety and

language see Derrida (1978: 3); anxiety and politics see Derrida (1984: 120). For a defense of politics grounded on anxiety see Sokoloff (200 lb: 8-9). A growing number of scholars have recently reassessed the value of anxiety as a moral feeling. According to Thiele (2003: 13), "Sadness and anxiety trigger more careful and elaborate processing of information and more discrete judgments." See Marcus (2002: 105) for an account of how anxiety improves judgment: "When people are anxious . . . they are more willing to consider alternatives outside the range of the familiar and comfortable"; see also Foucault (1996: 254): "I fear that it is dangerous to allow judges to continue to judge alone, by liberating them from their anxiety and allowing them to avoid asking themselves in the name of what they judge, by what right, by what acts, and who are they, those who judge."

42 Anxiety operates in terms of the self's relation with itself (discussed earlier) and in reference to the self's relation with the present political order. Anxiety about the origin of legality in illegality motivates the aspiration for justice. Law is never completely in step with justice. Anxiety also inserts critical reflection into spaces that may be resistant to thought. Grounded on habit and majority approval, political institutions are always at risk of becoming dogmatic. Anxiety motivates the critique of the status quo in order to replace dogmatism with critical reflection. To some extent, anxiety should also mediate the relation between law and justice. There are no guarantees, however, that anxiety can always produce the types of decisions that can

bridge justice and legality in less violent ways. Nevertheless, anxiety is likely to generate important political virtues including critical reflection, skepticism and the willingness to see an issue from a plu- rality of viewpoints.

43 Connolly (1995) pins Derrida as a transcendental thinker. Moran's (2002) dismissive reading of Derrida misses the ways he contributes to ethical and political reflection and can revitalize liberalism. Lilla (2001) casts him as a chic nihilist.

this opposition, or who seek to transform it, will simply run into a wall of incomprehension.44

CONCLUSION

Derrida places imperatives of paradox in the heart of the

legal order in order to connect political action to a higher con-

ception of responsibility but without abandoning the need for

political action today For Derrida, politics does not happen when one follows a program or when one dreams about an

impossible notion of justice but in the non-programmatic interface between justice and legality His re-conceptualization of decision is a strategy intended to make political decisions more difficult but without abandoning the call for more

responsible modes of political action. He prevents us from

deciding too quickly but also rules out as irresponsible the deferral of decision. He breaks the unhelpful opposition between premature action and irresponsible indifference in the name of more responsible modes of engagement.45 Even if I have somewhat arbitrarily brought Derrida and Rawls's work into contact in this essay, Derrida attempts to rescue the word politics from the paralyzing malaise that has resulted from the cramped political imagination and narrow view of

citizenship that we can see in Rawls. Signs of the exhaustion of politics are the signs of our

time: a narrowing of credible political alternatives that have rendered elections almost irrelevant, the corporate domina- tion of the political sphere that casts an ominous shadow over the voter, the disappearance of substantive dialogue, the

gag order on dissent, widespread apathy, dubious unilateral

foreign ventures, a crisis in education and health care, public contempt for politicians; and little faith that anything can be done to address this. Interpreted affirmatively, decision is a

strategy of political renewal. It creates an extralegal ethical

space from which one can launch a permanent critique of the

legal order. This permanent critique appears as a spontaneous politics that cannot be represented by a party or a leader. Like Socrates in Apology (Plato 2003) it is annoying, defiant, and it stings; but unlike him in Crito (Plato 2003), it never passively submits to state power.46 This spontaneous politics is the scourge of tyrants and their flatterers. As Shel- don Wolin (1996: 37) reminds us, citizenship is more than

merely following the rules of a particular legal order; for him, "democracy is born in transgressive acts."

The space between justice and legality is the space of freedom and transgression par excellence.47 If citizens are not

44 Derrida (1990: 923) states: "I can offer no response, at least no reassur-

ing response, to any questions put in this way ("either/or," "yes or no")." 45 According to McCormick (2001: 417), "Derrida demonstrates that a

world without violence is our most enlightened aspiration, if not an

instrumentally attainable goal. But this insight encourages us to think about living according to law formulated and enforced in less violent

ways." 46 See Villa (2001) for a discussion of Socratic or "dissident citizenship." 47 The space between justice and legality may not be appealing for every-

body. Some citizens may prefer to remain in the private sphere since

being "between" is simply too precarious. The anxiety and tension that





willing to leave the safety of the private realm and enter the

space between justice and legality, then the most important expansions in democracy would never have happened. All

emancipatory struggles suspend and reinterpret the foundations of law in the name of a more just vision of collective life. The movements to abolish slavery, expand voting rights, protect the environment, recognize the rights of

women/gays/lesbians, open national borders to refugees and

asylum seekers, and end capitalist exploitation were and continue to be motivated by an ideal higher than mere legality, and often began in modes of civil disobedience that may not have been initially recognized as involving cases of clear injustice but that nevertheless ultimately shook the foundations of liberal democracy48

Rawls may agree with the aims of many of these movements and the expansion of rights but one will not find in his work the active citizens who will pursue these projects. The motivation for political change will not come from the work of Rawls because he excludes everything that revitalizes a political culture from his model of politics: the restless and interminable dialogue about foundations; public discussion about the most divisive issues; anxiety about the character of public life; active citizens; acts of civil disobedience that may not be recognized by the state as involving substantial and clear injustice; healthy skepticism about authority; and the permanent critique of the status quo.

Like Derrida, movements based on the identification of injustice test the limits of the liberal state. And yet, without legality, long lasting improvements in the extension of democracy and addressing injustices on a day to day basis would never have been possible. Resting on either law or justice is therefore irresponsible. Maintaining the tension between law and justice is necessary.49 This tension consti- tutes the terrain of politics. Hovering in it is perhaps as close as it is possible to come to the experience of politics as such. In the current context of fear and the obsession with security, questioning legality may be less welcome than ever but more necessary than at any other point in the history of liberal democracies for the revival of democratic citizenship.

they are likely to experience in this space may be too much to take. Mul- tiple locations for democratic citizenship, however, need to be cultivated including the space between justice and legality as viable options for citizen participation. Dominant versions of liberalism are too willing to trust the state and are inattentive to the depoliticizing and disciplinary tendencies inherent to increasing state centralization. Embracing the

space between justice and legality is not a rejection of the state but a call to expand spaces of politics in the name of a better future.

48 If Derrida's (1994: 85) work on decision lays the groundwork for a politics of resistance, his call for political struggle against triumphant and

dogmatic versions of liberal democracy and market capitalism in

Specters of Marx outlines his specific targets. For him, "never have violence, inequality, exclusion, famine, and thus economic oppression affected as many human beings in the history of the earth and of humanity."

49 For Derrida (1994: 175), justice must happen "through but also beyond right and law." Derrida's call for justice today corresponds to his effort

Decision is an example of how questioning legality might proceed. It is a style of questioning that can produce some-

thing akin to a critical theory of politics. It should be viewed,

finally, as a significant contribution to our field that has been

bogged down by Rawls's tired image of political life.

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Received: March 8, 2004

Accepted for Publication: May 4, 2004

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