The Philosophy of the Limit and Its Other

THE PHILOSOPHY OF THE LIMIT AND ITS OTHER*

Thomas McCarthy

In reading The Philosophy of the Limit, I repeatedly had the experience of agreeing with and learning from Drucilla Cornell’s many fine insights only to be brought up short by the conclusions she claimed followed from them.’ My perplexity then often dissolved in a subsequent realization that what she wanted to say, in the end, about ethics and justice was not so different from what I would have thought followed from the original insights. And this led me to believe that the problems I encountered in reading the book had more to do with the conceptual and rhetorical resources it draws upon - most significantly, the writings of Jacques Derrida - than with the positions it defends. As I shall explain, I do not think this is just my problem. In my view, Cornell unnecessarily impedes the development of her own best insights by confining them to the ambit of deconstructionist thought. Many of them could be better developed, I shall argue, by drawing upon resources available in other traditions.

The specific suggestion I want to advance here is that Cornell’s philosophy of the limit has much more in common with Kant and neoKantianism then she allows. There are, to be sure, references to Kantianism scattered throughout the book; but they are almost without exception negative, used primarily to mark positions from which she wants to distance herself. Kantianism is, one might say, constructed as the other of the philosophy of the limit. In one way this is not surprising: Kant has always been a favorite target of deconstructionists. But we are given pause in this case by the very notion of a philosophy of the limit: after all, wasn’t Kant himself the philosopher of limits par excellence? Wasn’t it he who criticized the excesses of rationalist metaphysics by insisting that the ideal of an intelligible reality could be no more than “a mere limiting concept,” capable “only of negative intelligent reality employment,” to “curb the pretensions” to determinate knowledge of a realm beyond experience?2 This pause becomes a persistent doubt when we note how Cornell positions her philosophy of the limit in relation to Hegel. Adorno’s critique of identity-thinking and Derrida’s account of diflirence are used early on in the book to undercut Hegel’s efforts at incorporating the other of reason into thought and to establish that there is always something beyond thinking

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and the thinking subject, a beyond that escapes our conceptual grasp, eludes our systems of representation. But it was precisely this that Hegel objected to in Kant and tried to overcome through his dialectical sublation of the limit concept. One might expect that Cornell’s reversal of this move would take her back to Kant. This is not entirely true, however, as she takes with her a number of lessons learned from Hegel and developed in different ways by Adorno and Derrida. They include a rejection of Kant’s doctrine of the noumenal and phenomenal realms, a non-Kantian conception of the subject as interwoven from the start with language, culture, and social relations, and a critique of Kantian moral autonomy as constructed upon a repression of the nature within us and thus of our own happiness and our capacity for compassion with others.

But these same elements of Kant’s critical philosophy have come under heavy criticism within some strains of neoKantianism as well. Thus essentially the same objections have been developed by Jurgen Habermas in his theory of communicative action. Habermas, however, is precisely the representtive of contemporary neoKantianism that is most often singled out for criticism by Cornell. Like Kant, he appears only as an other of the philosophy of the limit; he is mentioned only to signal positions from which she wants to distance herself. As Demda and Cornell have taught us, however, such others are often closer than we think; and when allowed to speak in their own voices, they frequently disrupt the schemes constructed around their exclusion.

I want to argue that this is the case here: Cornell’s philosophy of the limit is actually much more Kantian in spirit than she allows and is, on many key points, particularly close to Habermas’s “left-Hegelian” rewriting of Kantianism. This is not meant merely as an exercise in comparing and contrasting. By highlighting the Kantian aspects of her approach, I want to indicate that it can be developed in ways other than those she follows. Sometimes these ways do not merely supplement what she envisions but call for and suggest important revisions. This is particularly the case with her treatments of such basic oppositional pairs as immanentkranscendent , real/ ideal, particuladgeneral, idought, goodright, and determinate/- indeterminate.

I Like Cornell, Kant repeatedly insists on the limits of our systems of representation and on the fundamental importance of what lies beyond them. Though the latter cannot be theoretically demonstrated, or even be the object of any determinate knowledge, it remains for him, as for Cornell, of fundamental practical significance. In relation to the conduct of inquiry, the “ideas of reason” - through which we think, without knowing, what is

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beyond the reach of experience - function only as regulative ideas, that is, as maxims of inquiry which spur us on to ever deeper explanations and ever broader systematizations. The error of metaphysics is to represent this drive toward the unconditioned and the totality as if they were achieved or achievable, that is, to mistake what is merely regulative for constitutive. This deeply rooted tendency of the human mind repeatedly gives rise to speculative illusions that have to be dialectically dispelled by critical philosophy. Because Cornell addresses herself in this book primarily to the ethical dimension of deconstruction, I won’t say any more here about the role of ideas of reason in the conduct of inquiry but will turn directly to the role Kant sees for them in the conduct of life.

Of the various ideas he considers significant for morality, only “freedom” is necessary. In somewhat the same way as Cornell introduces “responsibility” as a quasi-transcendental condition of the ethical relationship, he argues that freedom is a practically unavoidable presupposition not only of ethical action, but of rational action - and even of rational thought - generally. As rational agents we have to regard ourselves as free to respond to the force of reasons pro and con, whether or not we can prove theoretically that we are. That is to say, in practice we cannot help but think of freedom as something actual. This signals a possible difference from Cornell, who seems at times to concede to Derrida our inability to think the beyond in any positive way, and thus the necessity of relying upon irony, allegory, and deconstruction itself to evoke it. By contrast, Kant - and, as we shall see, Habermas - argue that ideas of reason have to be thought in some way if they are to inform action, as they should. Below, when I consider what Cornell has to say about the relation between Justice and the law, I will argue that she is, at least implicitly, committed to the same view: a strictly unthinkable Justice could not perform the critical and guiding functions for law that she attributes to it. Here I want only to introduce Kant’s view that ideas of reason cannot be meaningless in the strict sense; even if we cannot theoretically comprehend them, we must somehow be able to think them in relation to practice. It is just such practical significance that he claims for his thinking of Right in terms of an association of free and equal beings under the rule of laws they could legislate for themselves, and for his ideal (i.e. idea in individuo) of a Kingdom of Ends. These are not ideas of what is already there - of the il y a as Cornell might say - but of what we ought to seek to realize through our actions. Given that such ideas and ideals reach beyond, or are transcendent to, any possible experience, however, there can be no hope of full presence. On the other hand, they do function as organizing principles in experience and action and are thus immanent to them. That is to say, ideas and ideals not only subserve the deconstructive functions Cornell assigns to the beyond of our systems of representation; they also function as orientations and guides to our

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constructive and reconstructive undertakings - or, to borrow Cornell’s metaphor for the operation of principles, as “guiding lights,” like the light that comes from a lighthouse to guide us and prevent us from going in the wrong direction, though it does not determine the exact route that we must take in any particular case (106).

Though I hope by these few remarks to suggest that Cornell is not so far from Kant as she gives us to understand, I do not mean to suggest that there are no important differences. While Kant does sometimes speak of the intelligible realm merely as “a point of view which reason finds itself constrained to adopt outside appearances in order to conceive of itself as practical,” the metaphysical residues in some of the other uses to which he puts that idea are unmistakable.‘ And though Kant does insist that the ideal of the highest or supreme good connects nature with reason by combining happiness with virtue, and that the kingdom of ends merely places natural beings under moral laws and non-moral goods under moral conditions, it is undeniable that his categorical imperative - the supreme condition of morality - is, as Cornell argues, constructed upon a repression of the nature within us. Like her, I think this is connected with Kant’s insufficiently relational notion of subjectivity. On all of these points, however, Habermas also agrees with Cornell against Kant, and yet he undertakes to reconstruct rather than merely to deconstruct the latter’s approach to practical philosophy. If Cornell is to maintain her distance from her Kantian other, she will have to tell us where she disagrees with Habermas and why - and this she does throughout The Philosophy ofthe Limit. As I will try to show, however, some of these disagreements are based on misunderstandings, or at least on less than optimal readings, and others, though real enough, find Habermas in an arguably stronger position than she.

I1

Cornell criticizes Habermas for appealing to “external,” “philosophically established” norms to legitimate law, and of thereby opposing to what is an “abstract ought,” which is “projected” as the “horizon of an ideal’’ speech situation and articulated in a “metalanguage” that “pretend[s] to have the last word as the truth of a reconstructive science” (107, 119f., 127f., 133f., 157f.). On all of these points, however, Habermas’s position is actually very close to her own. She does mention that his theory of comunication attempts “to find prescriptive norms in the descriptive norms of speech.” (119) But she does not seem to see that the whole point of his doing so is precisely to break down the immanenthranscendent , realhdeal, idought dichotomies that have haunted Kantianism. Norms that are always already operative in communicative interaction are not “external” ; idealizations that function as presuppositions of rational discourse are not “ideal” as

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opposed to real; shared expectations that structure our practices and institutions are not “abstract oughts.” And even though Habermas once bundled together various idealizing, normative presuppositions of theoretical and practical discourse and projected them in individuo as an “ideal speech situation,” he was clear that it was no mere external, ideal, abstract ought, because, he argued, it functioned as an effective presupposition of actual discourse: “In this respect, the concept of the ideal speech situation is not merely a regulative principle in Kant’s sense, for we must in fact . . . always already make this supposition. On the other hand, [it] . . . is not an existing concept in Hegels’ sense, for no historical society matches the form of life . . . characterized by [it]. The ideal speech situation might best be compared to a transcendental illusion, if that illusion were at the same time a constitutive condition of rational speech rather than the result of an impermissable extrapolation of the categories of the understanding beyond all experience. This anticipation of an ideal speech situation has the significance of a constitutive illusion . . . We cannot know a priori whether the empirical conditions for its realization, however approximately, can be realized in practice. In this sense, [its supposition] contains a practical hypothesis. ”4

There are intriguing similarities between this passage and some of Cornell’s and Derrida’s formulations - for example, between this account of the anticipation (Antizipation, Vorgriff, Vorwegnahme) that inhabits the structure of communication and Cornell’s account of the “unerasable trace” of the future, the “to come,” inherent in symbolic representation; or between this characterization of ideas of reason as constitutive illusions of communication and Derrida’s view that the use of language unavoidably gives rise to “what Kant would call transcendental illusion[s]” which, systematized in a certain way, comprise Western metaphysics.’ But here I want only to note that Habermas’s “reconstructive science,” to which Cornell strenuously objects, operates at the same level as the “quasi- transcendental” analysis she declares the philosophy of the limit to be. (ix) She, no less than Habermas, moves at the level of arguing that this or that structural feature of language - for instance, temporalization - is a condition to which any system of meaning is subject. So it can’t be the quasi-transcendental analysis or reconstruction of unavoidable and general conditions to which she is opposed as such, but only to this or that claim or result of such analysis. The same holds for another global objection she raises against Habermas, namely that there is no “metalanguage” in which to carry out such analyses, that any projection of the ideal always relies on some pregiven context (12), and thus that the ideal is never other than the real but only a rationalized projection of it (135). If she means by this only that the reflexive enterprise of quasi-transcendental analysis, including any purported reconstruction of ideal presuppositions, cannot claim for itself a



God’s-eye standpoint outside of language, that it too is always situated and always relies on taken-for-granted presuppositions, that it is inherently fallible and its results essentially contestable, then there is in fact no disagreement with Habermas. Nor is there any if she means only that ideals can never be wholly other than the real. If she means more than this, for instance, that ideals are always “only rationalized projections of current norms,” and therefore are never able to support radical critique and transformation, she will have incurred a considerable burden of proof, and one which she does not discharge in this book.

One question that remains is how Habermas’s insistence on the constitutive power of the anticipation of the ideal differs from Cornell’s and Derrida’s insistence on the constitutive power of the “not yet of the never has been.” There should, however, be no question that the difference could consist in Habermas pretending “to have the last word” (107) or to have inaugurated “the definitive establishment” (128) of any ideal. He is at least as radical a fallibilist and finitist as they. But rather than pursue any further the question of Cornell’s relation to Habermas, I will turn directly to her account of Justice, for it is there that the limits of the deconstructionist approach become clearest.

III

Cornell’s treatment of Justice starts from Derrida’s characterization of it as an aporia, that is, as the absence of a path, a dead end or impasse, which nevertheless promises a way out (71,133ff., 165ff .) Its aporetic character is said to reside, first, in the “paradoxical” nature of legal judgment: “The judge is called upon to judge according to law . . . which means he appeals to law, to rule, and not only to his own opinion”; at the same time, the judge “judges [the law] through confirmation or rejection”; his judgment would “not be a true judgment, fresh, if it were simply a calculation of law” (133f.). This could appear “paradoxical,” it seems to me, only against the background of a false, pre-Wittgensteinian understanding of rules as algorithms and of rule following as mere calculation; on a more adequate understanding, it simply is what is involved in intelligently following a rule. The aporia, I am suggesting, resides less in the phenomenon under consideration than in Derrida’s characterization of it: “for a decision to be just and responsible,” he writes in a passage cited approvingly by Cornell, it must be “both regulated and without regulation: it must conserve the law and destroy it or suspend it enough to have to reinvent it in each case . . . [Elach decision is different and requires an absolutely unique interpretation, which no existing, coded rule can or ought to guarantee absolutely” (133). One would be tempted to use such hyperbolic formulations only if one were working against - and for that purpose, with - a basic misunderstanding of

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rule following - the picture of “the judge [as] a calculating machine” that Derrida invokes and Cornell critically deploys. But on a more adequate understanding of what is involved, the “paradox” disappears: we would expect neither absolute guarantees nor absolute reinventions, but rather a certain interplay between the general and the particular, the abstract and the concrete, conservation and innovation.

Languages are spoken and understood, and actions are performed and recognized by particular individuals in particular situations. And that particularity inevitably contributes to the concrete sense that is made by and of speech and action. Contextual considerations are, then, always at play in the production and interpretation of meaning. But this is only part of the story. Also required to make conversation and interaction work are general structures with “local particularization potential,” that is, structures of language and action which are, on the one hand, relatively invariant to the parties speaking and acting, but are also, on the other hand, able to accommodate the variations they introduce.6 The dialectical interdependence of the general and the particular here takes the form of an interplay between structure and context carried through by competent agents who can orient to both. Reciprocally imputed, mutually assumed, and socially sanctioned structures of communication are “locally” and interactively “managed” by participants themselves through on-the-spot interpretations and judgements. Competent, accountable, practically rational agents are, then, the lifeblood of the dialectic of general and particular. It is only through them that the essential indeterminacy of language and culture achieves the practical determinacy of speech and action in concrete contexts.

The second aporia of justice, which turns on its “undecidability,” is a variation on the same binary opposition: either “mere calculation” or “the ordeal of the undecidable” (134). And again, the message should be that this opposition is based on a misunderstanding of what is involved in rule following in general and in the rule of law in particular - rather than that we are inextricably caught “in the throes of this paradox” (134).

It is important in this connection to note that the achievement of practically determinate sense in concrete circumstances happens over time. Not only the determination of an utterance’s sense but also of its validity - of its truth, say, or of its rightness - is a step-by-step process that involves dealing with considerations as they arise. If social interaction is to remain stable in the face of a vast and unpredictable range of potentially relevant considerations, accountable agents must routinely adopt what Harold Garfinkel calls a “wait-and-see” attitude toward one another’s utterances and actions, for their meaning is inherently open to clarification, confirmation, contestation, alteration, and so forth - by the future course of events in general and by how participants notice and deal with what they take to be

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relevant considerations in particular.’ For these reasons, among many others, mutual understanding and mutual agreement can only be ongoingly accomplished, and always only for all practical purposes.

The third aporia arises from “the urgency of justice.” The judge has to decide here and now, not in a non-existent ideal speech situation. “Justice does not wait,” and this means that “the ideal cannot guide us precisely because it is the ideal and thus not present” (134). This aporia too, it seems to me, is based on an untenable opposition. As with the general and the particular, what we have to understand here is the dialectical interdependence of the ideal and the real. Context-transcendence through the idealizing projection of a horizon of unlimited validity has always been a function of reason in our philosophical tradition. From the time of Socrates, reason has been viewed as a capacity to go beyond the immediacies of sense, place, time, upbringing, authority, convention, tradition, and the like and to appeal to considerations that any reasonable person could accept. To renounce such ideas of reason is to forfeit this potential for transforming ourselves and our situations. But how can the transcendence and idealization envisaged be reconciled with the unavoidable contextuality and practicality of communicative interaction? Once again, the keys will be the accountability of agents and the temporality of their making sense together, as well as the institutional settings in which they do so.

In the context of theoretical and moral discourse, the normative force of the ideas of truth and rightness is supposed to be given full scope and the bounds of the relevant communication community to be expanded without limit. In practice, of course, rational agreement by all competent judges is not something we can hope to accomplish all at once or once and for all. Rather, we try to establish the rational acceptability of truth and rightness claims in particular forums and assume responsibility for defending their validity in other relevant forums as well. The unlimited inclusiveness of such validity claims is, thus, never more than potential. It is a promissory note - or, as both Habermas and Derrida might say, a promise - issued across the full expanse of social space and historical time. Whether or not such promises can be made good always remains to be seen, for any existing consensus is open to contestation. In the end, there is no way of determining which is “the better argument” apart from how competing arguments fare over time, that is, how they stand up to the ongoing give and take of critical-reflective discourse. The redemption of truth and rightness claims, the establishment of their warranted assertability or rational acceptability, is thus an intrinsically temporal, open-ended process. It is just this temporally extended, in principle never-ending, to-and-fro of claims and criticisms, in institutionalized forums, vis-a-vis particular audiences claiming to represent the universal audience, that constitutes the “actually existing” reason of science and, I shall argue below, of law. The ideal, then,

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is not opposed to the real but effectively operative within it. It is, in Habermas’s phrase, “a critical thorn . . . in the flesh of social reality.”8

The dialectical interplay of the ideal and the real, like that of the general and the particular, is borne along by the on-the-spot actions and utterances of accountable agents. It is, as we saw, only through their situated exercise of practical reasoning and judgment that the functionally necessary indeterminacy of linguistic and cultural patterns can attain the practical determinacy of communicative interaction. And it is to them that we must look for the transfonnative potential which is so important to Cornell. For competent agents can just as well render the determinate indeterminate, the unproblematic problematic, or the accepted unacceptable. That is to say, because the outcomes of communicative interaction are never fully determined in advance by the socially shared expectations structuring it, competent agents are a “quasi-transcendal” condition of determinacy and indeterminacy, stability and innovation, repetition and proliferation, agreement and disagreement. The critical potential that the theory of communicative action reserves to accountable agents sometimes gets obscured by the stress Habermas places on rational agreement and consensus. But there is a countervailing stress on the negative freedoms built into the discourse model as well, as when he underscores the individual’s “irreplaceability” and “uninfringeable freedom” to respond with a “yes” or “no” to validity claims.’ These are two sides of the same coin: rational consensus, as a regulative principle, requires the uncoerced agreement of each participant; it already acknowledges the right of each individual to withhold assent unless and until convinced.

IV All of this can now be brought to bear on what Cornell has to say specifically about the ethical relation and the rule of law. Here too she begins by distancing herself from Kantianism but ends up very close to it. Thus, the ethical relation, which focuses on the aspiration to a non-violative relationship to the Other, is introduced by way of contrast with morality, which, it is said, seeks to spell out a system of behavioral norms that can be translated into a system of rules (13). The former turns on the acknowledge- ment of and respect for difference, the irreducible otherness of other. The latter, by contrast, is said to turn on general or universal rules that treat everyone the same and thus are not respectful of difference. Now most contemporary neoKantians would reject this either/or proposition. Thus Habermas distinguishes the universalist concerns of morality from the concerns with particularity characteristic of ethics, and argues that any adequate conception of practical reasoning in general or of legal reasoning in particular will have to give both aspects their due. And this is, in fact, just



what we find Cornell doing in the course of her discussion. She counterposes to ethical asymmetry the idea of a “phenomenological” symmetry: as an ‘I,, the Other is the same as ‘me’ (55). Without this “moment of universality,” this recognition of sameness as well as difference, she warns, ethical assymetry might degenerate into a viola- tion of the Other (174). Thus ethical asymmetry “must operate within phenomenological ‘symmetry’ if it is to be ethical” (SS).” That is exactly what Habermas says about the relationship of ethics to morality, and this is no accident: since Cornell treats phenomenological symmetry not merely as a description but as a demand to recognize that we are the same, it performs the same role for her that moral symmetry does for Habermas. The similarity becomes even more striking when we find her endorsing an “ideal” of “communicative freedom,” in which both our sameness and difference are affirmed in a belonging together without violence (60), and especially so when we find that this is tied to an idea of symmetrical dialogue (176ff.). It is just such an idea of non-violent, dialogical belonging together that animates Habermas’s entire undertaking.

A similar doubling-back occurs in Comell’s treatment of the relation between the right and the good. She begins by criticizing deontological approaches for erroneously relying upon a “rigorous” separation of questions of the good life from questions of justice (6), and goes on to present her own view of the interplay between them (92ff.). She distinguishes the Good in Levinas’s sense - as the “ethical relation that calls us to justice,” the “call to responsibility to the Other” (117) - from the Right as the “law of the self-legislating subject,” and from the “principles inherent in an existing legal system,” as well as from “the good embodied in the legal principles” (92). As we would expect, the Good is given pride of place in this scheme; but it does little work in the details of her discussion except to serve as a reminder that no existing legal system can ever claim fully to define Justice, nor can the good embodied in any nomos claim fully to realize the Good. It does not seem to me that it could do any more: having rejected any ontologizing of the Good, there’s nothing Cornell can say about it except what can be said about the good life and the common good within the ethical, moral, legal, and political traditions we live in and through. But those traditions do not provide a conception of the Good that could ground a conception of the Right; rather, in their modern forms at least, they tend to be constructed around the dialectical interdependence of the right and the good. And this is in fact recognized by Cornell in her discussions of the “horizon of the good” projected by the principles embodied in modem legal systems: this modem conception of the good is said to turn on ideas of freedom, equality, fairness, rights, universality, democracy, and a host of other “emancipatory ideals” (7, 95, 104f., 108, 118, 164f.).



We are getting close to Habermas once again. And the distance threatens to vanish altogether when we read that the elaboration of principles of justice depends on the public use of practical reason to sound common themes and to synchronize competing interests and perspectives (106), that the critical-normative dimension of law calls for a “reasonable assessment’’ of competing legal principles, in which we “concede to the force of the better interpretation” (107), and that these uses of practical reason demand “that we continually engage in dialogue with the other” (107) in a spirit of “dialogic fallibilism” (108). It is, I confess, difficult for me to reconcile all of this with Cornell’s declared distance from Habermas and proximity to Derrida. To borrow her phrase, what is the difference that makes a difference? It springs, I think, from her strong commitment to transcendence and transformation of the existing legal system. She wants to insist on the limits of any current definitions of justice and finds that deconstruction enables her to do just that. But I have argued that there are ampler resources for doing the same thing in Habermas’s theory of communicative action and that Cornell, in breaking Derrida’s “silence” (go), actually produces a version of the “double gesture” that is more Habermasian than Derridean: “We must both accept the challenge of thematization, including the projection of a redeemed world which would realize the emancipatory ideals, and acknowledge the [fallible and imperfect] status of any interpretation we offer” (114).

One difference that makes a difference - one respect in which Cornell does side with Derrida against Habermas - is her appeal to the “mystical foundation of legal authority” to underscore the transcendence and transformation of existing law that she desires (131, 157f., 163f., 167, 182). But that appeal, in my view, depends, first, on conflating two very different matters of justification: the justifications that might be offered for legal principles themselves and the justifications that might be offered for instituting them through “revolutionary violence” and other “founding acts.” It should be clear that the use of violence to commence or conserve a legal system raises questions beyond those involved in considering the rational acceptability of principles as such. De facto acceptance (or imposition) is not the same thing as ideal acceptability. This conflation then gets combined with another tenable eithedor: either complete justification or no justification at all. That is to say, there is a persistent assumption that any justification deserving of the name would have to amount to a demonstration dictating one specific course of action. But of course, such logically compelling arguments for action are rarely, if ever, forthcoming. But that does not mean that we cannot have better or worse, stronger or weaker, more or less cogent reasons for action. The domain of practical reasoning, lying between the extremes of all or nothing at all, is in fact where we live most of our lives, conducting our affairs on the basis neither


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of irresistible proofs nor of groundless decisions, but on the basis of weighing considerations pro and con. Weighing reasons is not the binary opposite of being responsible. It is at the heart of what we mean by responsibility.

Another eitherlor structures what Cornell has to say about the philosophical foundations of law: either deconstruction or positivism. She accepts the legitimacy of - and indeed engages in - an attempt to “establish the conditions of justice prior to actual” legislation and adjudication (182). The difference between Derrida and even someone like Rawls, she tells us, is that the latter’s notion of an overlapping consensus “turns us to the past in a way that can potentially limit legal transformation,” whereas Derrida is suspicious of any inquiry that seeks to “establish identifiable norms as ‘constitutional essentials’ ” (182). But Derrida’s is not the only way of insisting on “the divide between law, established norms, and Justice’’ (182). The entire Kantian tradition has done that, while at the same time trying to “establish identifiable norms.” The important difference, I think, is that Derrida’s way of maintaining “the beyond” to any existing legal system leaves us without a positive heuristic to guide us in our efforts to formulate constitutional essentials. Cornell, while siding with Demda in theory, in practice follows the route of spelling out basic ideals and principles of the democratic, constitutional rule of law. She conceals the tension between theory and practice by suggesting that we have to “justify our [legal] interpretation through an appeal to the Good,” indeed that the justice or good embodied in the principles of any legal system have themselves to be assessed by appeal to the Good (13f., 92f.). But how does this work if eveq thing that is “sayable” or “identifiable” is on this side of the beyond, if the Good is itself “unsayable?” Cornell simply takes for granted that “the G o o d steers us in the direction of the emancipatory ideals of our own tradition, but she offers no reasons, other than those accessible in that tradition, as to why it should.

Habermas’s approach to this tension is, I think preferable. It encourages us to identify and articulate the ideas and ideals presupposed by communicative reason, while insisting that no articulation can be perfect, complete, or final. Thus it combines the positive heuristic function of ideas of reason with their negative critical function, yielding not the hybris of final and complete determination but the “humility,” to borrow Cornell’s term, of an ongoing, open-ended, critical, contestable, and fallible use of public reason to organize the terms of social cooperation. The proceduralist conception of deliberative democracy applies the idea of justification by appeal to reasons all can accept to the public discussions of free and equal persons in multiple and multiform arenas for detecting, defining, discussing, and deciding questions of the common good.” There is no royal philosophical road to the good of the community apart from and above the public uses of reason in such cultural and political forums. To be sure, our



concrete interpretations of the presuppositions and conditions of democratic self-determination are themselves subject to debate in the public sphere. Democratic deliberation is reflexively open: participants may thematize the very activities in which they are engaged. But that openness does not entail the “undecidability,” “performativity ,” “violence without ground,” “un- crossable divide,” or “mystical limits” that Derrida conjures up to mark the relationship between law and justice. Their invocation is neither the only nor the best way of resisting positivist attempts to identify justice with law. I have argued that the Kantian tradition offers superior resources for doing the same thing, and that Cornell, in fact, repeatedly uses them in the course of her argument. It is that mix, I think, which caused the perplexity I mentioned at the outset.

NOTES

* Remarks delivered in a symposium on The Philosophy of the Limit at the Central Division Meeting of the American Philosophical Association in May, 1994.

1. Drucilla Cornell, The Philosophy of the Limit (New York: Routledge, 1992). The numbers in parentheses in the text are page references to this volume.

2. Immanuel Kant, Critique of Pure Reason, trans. Norman Kemp Smith (New York: St. Martin’s Press, 1961), 272.

3. Immanuel Kant, Groundwork ofthe Metaphysic of Morals, trans. H. J. Paton (New York: Harper and Row, 1964), 126.

4. Jiirgen Habermas, “Wahrheitstheorien” (1972), reprinted in Vorstudien und Erganzungen zur Theorie des kommunikativen Handelns (Frankfurt: Surhkamp Verlag, 1984), 127-183, here pp. 181f.

5. Jacques Derrida, Positions, trans. A. Bass (Chicago: University of Chicago Press, 1981), 33. In the “Afterword” to Limited Inc., trans. S . Weber (Evanston: Northwestern University Press, 1988), Derrida acknowledges that “norms of minimal intelligibility” belong to “the requirements of all culture” (147), and that the values of objectivity and truth “impose themselves within a context which is extremely vast, old, powerfully established, stabilized or rooted in a network of conventions (for instance those of language) and yet still remains a context” (136). One might be tempted to develop such thoughts in the direction of a pragmatics of communication.

6. See Harvey Sacks, Emmanuel Schegloff, and Gail Jefferson, “A Simplest Semantics for the Organization of Turn-Taking in Conversation,” Language 50 (1974): 696-735.

7. See Harold Garfinkel, Studies in Ethnomethodology (Englewood Cliffs: Prentice Hall, 1967).

8. Jiirgen Habermas, Postmetaphysical Thinking, trans. W. Hohengarten (Cambridge, MA: The MIT Press, 1992), 47.

9. Jiirgen Habermas, “Individuation through Socialization,” Ibid., 149-204. 10. It is on this recognition of the “moment of universality” in “phenomenological

symmetry” that Cornell’s critique of the gender hierarchy turns: “phenomenological symmetry demands the specific recognition of the symmetry of Woman as another being” (86); “gender hierarchy violates the moment of universality that inheres in the recognition of the phenomenological symmetry of the Other” (175). She accepts Lacan’s “story” regarding the psychosexual dynamics of the gender hierarchy - the “psychical fantasy of Woman,” the “Law of the Father,” etc. - but she follows Derrida in rejecting its inevitability: “Lacan’s insight that a concept of sexuality cannot be separated from what shifts in language turns

@ Blackwell Publkhers Ltd. 1995


against his own political pessimism” (174). I am not convinced that his story can be so easily divorced from his pessimism, but I am even less convinced that the story itself stands up to critical scrutiny in light of the vast array of competing theoretical and empirical accounts of gender - not only within the psychoanalytic tradition and in psychology more generally, but across the entire breadth of historical, social, and cultural studies.

11. See Thomas McCarthy, “Kantian Constructivism and Reconstructivism: Rawls and Habermas in Dialogue,” Erhics (Fall, 19!24), and “Legitimacy and Diversity: Dialectical Reflections on Analytical Distinctions,” forthcoming in Curdozo Law Review.


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The Philosophy of the Limit and Its Other