THE PHILOSOPHY OF THE LIMIT

DRUCILLA CORMELL

ROUTLEDQE Nl!W YORK AND LONDON

Contents

Introducticn: What Is PostmodernityAnyway? 1

l. Tbe Ethcal Message of Negative Dialectics 13

2. The "Pootmodem" ChaUengeto the Ideal of Community 39

3. Tbe Ethical Slgnificance of the Chiffonnier 62

4. Toe Good, the Right, ami the Possibility of Legal lnterpretation 91

s. The Relevance of Time to the Re:Jationship

between !he
Philosophy of !he Limil ond Systems Theory: Toe Cill to
Judicial Responsibi1ity 116

6. Tbe Violeoc of the Masquerade: Law Dressed Up as Justice 155

ConcJusion: "The Etmcal, Political, Jurldical Signlficance

ofthe End ofMan" 170

Notes 185

lndex 213
 Preface

In the past four years I have developed an ethical reading of what has come to
be known as deconstruction. 1 proceeded to a discussion of how the ethical
reading of deconstruction related to the philosophy of alterity of Emmanuel
Levinas. 1 then further explored how a correct understanding of this relationship
cou)d help us in examining questions of justice and of legal interpretation. As
my own conception developed in the course of these essays, it became more and
more evident that the word deconstruction did not adequately portray the special
kind of quasi-transcendental analysis that I attributed to Derrida and that I argued
had important implications in the field of law. The recognition of the inadequacy
of the word deconstruction led me to rename Derrida 's philosophical project the
philosophy of the limit. As is usually the case, the event of renaming prodded
me to reconsider fundamental aspects of my own earlier work. Thus, although
six of the chapters are based on essays I published in the Cardozo Law Review,
the Yale Journal ofLaw arui Humanities, and Social Concept, they have ali been
substantially rewritten.
Many people have helped me over the years in developing the ethical configu-
ration I porttay in this book. Bruce Ackennan, Stanley Fish, Frank Michelmann,
and Barbara Herrnstein Smith warrant my special thanks for theirconstant intellec-
tual support and excellent criticism of my writing. 1 also need to thank Jonathan
Culler and Cynthia Chase for providing me with such a hospitable intellectual
environment when I was a research fellow at the AD White House. They provided
me with an important forum in which I could present my work. Richard Bernstein
was also a very careful reader of ali the drafts of the essays that have become the
basis of this book. His intervention taught me important lessons. My colleagues
at Cardozo, Arthur Jacobsen, Michel Rosenfeld, and David Carlson, have been
a constant source of encouragement as well as of thoughtful commentary. My
continuing debate witb Seyla Benhabib has led me to rethink man y of the central
ideas in tbis book. 0ur collaboration as well as our endless discussions have led
me to clarify my own position. Judith Butler has played a crucial role in her
excellent commentaries on various versions of these essays. My assistants, Debo-

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x I Preface

rah Garfield, Collin Biddle, Kathy Kemp, Byron Mattingly, and Whedbee Ma-
cabee, gave me invaluable help. Not only did they assist me in each step of the
production of this manuscript, they also offered me invaluable editorial advice.
They are a constant reminder of just how much one has to learn from one's
students. In the end, there are no adequate words of thanks for their commitment
and intellectual energy. As always, 1 want to express my appreciation to Maureen
MacGrogan who has given me so much as an editor, an intellectual interlocutor,
and particularly as a friend. The day-to-day emotional and intellectual sustenance
provided to me by my husband, Greg Defrietas, has been invaluable to me
throughout the conceptualization and actuaJization of this book.
But the1: is ~ne person whose friendship and support has come to symbolize
forme the m.fimte respect for the other I evoke in this book. My friendship with
Ja:ques Demda has been a gift for which there could truly be no adequate thanks.
His constant support and "positive mirroring" have given me more than I can
say My recognition of the significance of the role his friendship has played in
my life can only be indicated by the dedication of this book.
\..:~.resiits... Ve!J_S~mply, reality...j_snot.~~on
/ of secondness is actually foundational to his more obvious interest in the relation-
\. ship to the Other. In his discussion of Levinas and Heidegger, Derrida reads
Introduction:
What Is Postmodernity
Anyway?
This book aims to establish the relationship of the philosophy of the limit to
questions of ethics, justice, and legal interpretation. I here introduce the phrase
"the philosophy of the limit" in order to rename what has come to be called
deconstruction. 1 engage in this process of renaming because this new designation
should allow us to be _f!'!QCprecise about what deconstruction actuaJly is philo-
$~Jf.1Jyand: hence, to itTculate-more cleaily its significance for law. Toe
philosophy of the limit, then, by refocusing attention on the limits constraining
philosophical understanding, rather than on negative preconceptions engendered
by the notion of "deconstructing" as that concept has been read and misread over
the years, draws attention to t.w:o.aspects_Qfdeconstructive theory crucial to any
apprehension of contemporary philoSOi,hicaJPfacticC in its association with legal
studies. First, deconstruction, reconceived as the philosophy of the limit, does
not reduce the philosophical tradition to an ''unreconstructable" litter. thus un-
dermining the possibility of detennining precepts for moral action; rather, it
exposes the quasi-transcendentaJ conditions that establish any system, including
a legal system as a system. This exposure, which in Derrida proceeds through what
he calls the "logic of parergonality, " 1 demonstrates how the very establishment of
the system as a system implies a beyond to it, precisely by virtue of what it
excludes. The second aspect of deconstruction more accurately described by the
notion of limit is related to what Charles Peiroe in bis own critique of Hegelian
}dealism c_!l!ed secon(tness ...By"secondness Peirce indicates the materiality that
1.persistsbeyond any attempt to conceptualize it. S~9_m;!n~s._i~rds, is
_all~y_4t?~O. AitWe
will see, Derrida continually points to thefailure oIIaealism to capture the real.
Toe limit of any system of meaning is, for Derrida, graphica1ly represented to us
in death. As a result, for Derrida we may know secondness only indirectly, for
example in the death of a friend or lover, but the indirectness of this knowledge
does not diminish the force of its impact. Derrida 's engagement with the problem
...................
____________ _._.
2 I The Philosophy of the Limit
Levinas' ethical philosophy of alterity as demanding that we recognize the being
of the Other and the Other as Being 2 if we are not to revert to the rejection of
materiality as unholy and to the mystification of the Other. This mystification,
incidentally, can be seen in Levinas' own symbolization~via the figure of the
pregnant mother------ofthe ethical relationship to the Other. Derrida's insistence,
then, on secondness is crucial to bis own aspiration to heed the call of the Other.
It is important to note here that Derrida's deconstructive exercises are unique
in the way in which the limit of any system is exposed. Toe uniqueness of
Derrida's own philosophical positioning is that it does not attempt positively to
describe the limit as an oppositional cut, or merely as the system's own self-
limitation so that the system can perpetuate itself as a whole. lf Derrida were
positively to describe the limit as an oppositional cut, he would be reinstating the
traditional assumptions and dichotomies he seeks to deconstruct. Toe force of
diffrance prevents any system--the classical system in this book will be Hegel 's
system-from encompassing its otheror its excess. Toe Other for Derrida remains
other to the system. My argument will be that Derrida's project is not only to
show us why and how there is always the Other to the system; it is also to indicate
th_eethical aspiration behind that demonstration. For Derrida, the excess to the
system cannot be known positively; hence, thei'e is no beyond to what he would
call the undecidable. We must try, if we are to remain faithful to the ethical
relationship, to heed its othemess to any system of conventional definition.
This book will attempt to reformulate the juridical and legal significance of
this recognition of the limit of idealism, if idealism is understood to give us a
system that can successfully incorporate what is other to the system and thereby
erase the system's contradictions. More specifically, 1 will try to show the
significance for legal interpretation of Derrida's own understanding of justice as
an aporia that inevitably serves as the limit to any attempt to collapse justice into
positive law. Indeed, the significance of understanding justice as the limit to any
system of positive law is the first reason I am renaming deconstruction as the
philosophy of the limit.
My second reason for engaging in this process of renaming is this: 1 hope to
change the terms of the debate between thinkers of so-called "modemity" and
"postmodemity." As we will see in the forthcoming discussion I do not believe
that Derrida or Levinas, the two thinkers mQstj~ti(!!8tely conllCCTud-with the
sf_project of this book, are correctly identified as "postmodem. ,;-Mie-itllJ)Ortant1y,
the very term "postmoder.ity," although relevant in the realm of aesthetics,
loses much of its richness when carried over into philosophy and lega] studies;
"postmodemity" easily falls in with a particular perspective on historical and
philosophicaJ development which cannot do justice to the complexity of Derrida 's
and Levinas' work.
The argument that we are now in "postmodemity" necessarily implies a pro-
gression from the premodem to the modem to the "postmodem." Such a concep-
tion, at the very least, presupposes a teleological notion of historical development
What is PostmodernityAnyway? I 3
that can be described precisely enough to delineate the transition from one period
into another. For example, Jrgen Habermas makes a distinction between the
modem and the postmodern that rests on the teleological development from
mytlws to logos, which in turn demands the separation of the Right from the
Good. Toe set of nonnative ideals characteristic of the Enlightenment marks a
tuming point in philosophy and in poltica! and legal life. This change from
mytlws to logos, so the argument goes, eleva tes public reason rather than commu-
nity prejudice to dominion over our poltica! life. Public reason, in turn, allows
for the rational legitimation of shared normative ideals. Habermas argues that
this move from mythos to logos is the key aspect of modemity, a modernity which
he then claims as the very basis of an enlightened political and legal ordering.
For Habermas, as already suggested, such a political arder separates questions
of Justice from questions of the Good. lnstead, the Enlightenment, by rationaliz-
ing public norms and, more specifically, by institutionalizi~g the rule o~ l.aw as
a recognizable set of rules and procedures, promotes the R1ght ~o a pos1t1on of
priority. This move to rationalize public norms in the rule of l~w 1s the v:ry c~x
of modemity and the Enlightenment ideals that mark modem1ty as an h1stoncal
period. 3 In Rawls' recent work, the ideal ofpublic re~on and ~cognizable ~ystem
of law with established rights is understood to be mherent m the very idea of
constitutional govemment. Both Habermas and Rawls argue that it is only by
respecting the ideal of public reason and by establishing basic rights and guar~-
teed procedures applicable to all citizens equally and understandable by the pubhc
as a whole that we can truly be said to have moved from the rule of "roen" to the
rule of law.
4
Despite this similarity between Rawls and Habennas, h_o~ever, their recent
works diverge over whether Justice and the Good can be ng1dly separated. For
Rawls, the centrality of tolerance blurs the distinction. Tolerance is the basic
political value upon which constitutional government is founded. Tole~ce rec-
ognizes that certain areas ofhuman engagement sho~ld be free fro_mstate 1~terven-
tion. Human beings must be free to pursue competmg forms of hfe and d1vergent
moral commitments. But these pursuits must not infringe on the basic rights and
other forms of constitutional protections that are guaranteed to ali citizens as a
matter of ]aw. Unlike Habermas, Rawls does not speak in tenns of historical
period.s, but bis understanding of the "constitutional essentials" inherent in the
"overlapping consensus" embodies the historical reality of consti~utional gove~-
ment. An "overlapping consensus" clearly invol ves an interpretatton of the pohtt-
cal significance ofthe Reformation. Indeed, tolerance is the political value behind
the Refonnation's insistence that the state should not be given the power to
control religion, !et aJone to establish one particular religious view as the state
religion. In terms of American constitutional law, we recognize the value of
religious tolerance by imposing measures which prevent the gove~~e~t from
establishing a state religion and by guaranteeing the freedom of the md1V1dualto
practice bis or her religious convictions under the First Amendment. For Rawls,
4 I The Philosophy of the Limit
even though religious warfare is no longer as prevalent as it was at the time of
the faunding of the Constitution, the political issue of tolerance is by no meaos
outdated. On the contrary, Rawls believes man y of the heated poli ti cal and moral
debates of our time are religious battles, sometimes thinly disguised, sometimes
openly ex.pressed. Think, far e,cample, of the battles over abortion, homosexual-
ity, and pomography.
lt would greatly oversimplify Rawls' recent work to assume that it relies, at
least in the traditional Kantian sense, on the division between the Right and the
Good. Of course, it should be noted here that Kant's own insistence on this
distinction only pertained to the sphere of morality, and not to the hustle and
bustle of political and legaljuggling. Rawls' "overlapping consensus," by meaos
of which we are able to elaborate "constitutional essentials," does not merely
represent a pure procedure to establish what is Right, which then becomes the
very basis of the rule of law. Substitutive moral commitments are part of what
make up our "constitutional essentials." These "constitutional essentials" enjoy
a quasi-transcendental status in the sense that they are understood as the prior
basis-meaning here prior to the actual day-to-day political struggles which set
the guidelines and the limits of majoritarian politics--of the rule of law. In other
words, equality now understood as a limit on majoritarian politics is given an
historical dimension, but in such a way as to protect the need for a procedure to
legitimate established guidelines, irreducible to the particular conventions of a
particular society ata particular time. But this procedure is not de-ontological in
the strict sense of the word. Rawls, and as we will see also, Thomas Nagel,
struggles to develop a new way of thinking about justice which would avoid
reducing ethics and norms, on the one hand, to a simple appeal to the conventions
of a particular community, or, on the other, to a de-ontological approach, the
strong counter to conventionalism which seems to deny history and the signifi-
cance of our developed legal andmoral conceptions. Constitutional essentials are
based on the overlapping consensus of wbat our constitutional government has
stood for over time. This overlapping consensus, in tum, defines the ideal of
equality upon which Rawls understands the Constitution to rest. Rawls' "constitu-
tional essentials" certainly can allow for the promotion by the state of certain
values-for ex.ample, specific interventions to compensate for the educational
disadvantage of African Americans. In this sense they allow what have tradition-
ally been designated as questions of the "good life" to be recognized by the law.
Toe liberal concern with the limits of state intervention into the lives of
individuals and members of groups ex.perimenting with different lifestyles can
best be understood througb the title of Thomas Nage1's recent work, Partiality
5 clearly no public consensus on the issues involved. But it also obviously a1lows
and Equality. In this essay, Nagel tries to think through bow to establish limits
to the equality before the law that must be guaranteedto individuals if tbe legal
order is to be legitimate (even though the concept of legitimation is not Nagel's
own language). Por Nagel, individuality demands partiality. Each one of us has
What i:r Postmodemity Anyway? I 5
specific ambitions and talents to which we are inevitably partial. In order to have
an adequate understanding of justice, then, we must begin with the recognition
of individual partiality. lt is important to note here, that for Nagel partiality is
mandated by individual differences. He is not directly speaking to the partiality
of the state to certain forms of life. My addition to bis argument is that any
meaningful legal recognition of even individual partiality-take, for ex.ample,
the commitments of the artist-will demand the partiality of the state to support
these endowments-for example funding for the arts-if this recognition is to be
given content. As a result, 1 am arguing that the recognition of individual partiality
cannot be separated from the partiality of the state to divergent moral and personal
commitments. An example from Nagel which shows the connection between the
two forms of partiality is the protection of homosexuality by the state: If the
individual's sexual life is to be protected, the state must favor the homosexual
over the Puritan who would repress him or her. 1 believe this reading is true to
Nagel's understanding ofthe role oflaw and morality, as well as to bis insistence
that sorne division between the private and the public must be legally protected.
This insistence on the limit of equality in the name of partiality obviously differs
from the traditional rationalist view, which argues that the govemment must
remain neutral to ali forms of life. Under this conception of neutrality, the very
idea of partiality to certain forms of life would be suspect be.cause it would
necessitate that the govemment evaluate which fann of life was better. Further,
such an evaluation would be condemned because it logically implicates something
like a conception of the Good in order to ethically, legally, and politically affinn
which fono of life is better. Nagel 's recent work attempts to negotiate this impasse
between the Rigbt and the Good by asking, How do we rationally decide which
forms of life and moral commitments the govemment can be partial to without
altogether undermining a concept of nonnative legitimacy as the basis of a legal
system?
Nagel's concept of reasonableness helps us to answer that question without
introducing a strong conception of the Good in the sense, far example of Aristotle
or bis modero interpreter, Alasdair Maclntyre. Under Nagel's conception of
reasonableness, we weigh the extent of the wrong and the degree of the suffering
of competing parties, each of whom represents a different moral commitment,
against one another. Who, following the previous example, is wronged more
profoundly and suffers more intensely, the homosexual who is repressed or the
puritan who believes that homosexuality s evil and must be repressed? This
conception of reasonableness allows us as moral agents and, more importan ti y,
the law and the state to decide between competing mora1 visions when there is
govemment ..partiality" to certain groups over others. lt is evident, then, that the
very idea of partiality allows certain questions of the good life to be legally
addressed as we attempt to determine what is legitimate partiality. Yes, legitimacy
 6 I The Philosophy of the Limit
also implies that partiality not be left to the latest whim of the community. But
even so, the very notion of partiality denies the rigorous separation of questions
of the good life from questions of justice.
To summarize, American liberal analytic jurisprudence has long since moved
away from a rigid commitment to a de-ontological theory of the Right which, if
strictly interpreted, would prevent "substantive" questions on what kinds of forms
of life should be protected and even promoted from being considered as questions
of justice. This move has implications for the debate between the "new communi-
tarians" and the "liberals," as well as for the discussion between liberals and
~ri~cal theorists. Toe "new communitarian" argument against liberal analytic
Junsprudence assumes that this position rests on an abstract conception of Right
which in tum implies a view of the person which supposedly has nothing to do
with one's concrete self as situated in a community. 6 Toe argument then proceeds
to challenge the divide between the Right and the Good because this very separa-
tion implies the abstract view of the person. Instead of abstract theories of the
Right, the new communit.arians would have us rely on the embodied, concrete
nonns of our actual communities to guide us in our legal and political commit-
ments and disputes. But once we understand the direction that analytic jurispru-
dence has taken, we can also see that, at least as it has been defined, the debate
between the "new communitarians" and the liberals, understood to rest on the
traditional distinction between the Right and the Good, is rendered moot. In other
words, legal scholars should no longer pit an appeal to tradition-constituted
7
inquiry, which defines the Good against a de-ontological analysis which rigor-
ously separates Justice from the Good. They need no longer search for pure
procedures assumed to be just, as long as the proper procedures for debate are in
~lace, precisely because they leave substantive questions, including substantive
ngh~~ to the arena ofpolitics. Instead, they should ask what is a legally Jegitimate
trad1~1onand comm~nity, a question that cannot be abso/utely separateti from
certa.J.nfurther quest1ons such as what is morally acceptable and which fonns of
life "'.ould ~e ~ike to see promoted in our community. In Nagel's Ianguage the
questton of JUst1cecan no longer be definitively separated from a discussion about
which fonns of life we should affirm through partiality.
There is also no doubt, however, that both Na gel 's understanding of reasonable-
ness .an~ 1!1eRawlsian conception of the political value of tolerance do put
certai~ hmits on mythos, particularly if mythos is understood to include religious
comrmtments. th.at are allowed to domnate the state legislative process unchecked
by legal restnchon based on the ideal ofpublic reason. Rawls' own thinking on
what co.nstitutes publ.ic reason is complicated indeed. For now, I am using public
m the very simple sense that the "religious" or moral commitments of
mdlVlduals and groups must be examined by other criteria than the current nonns
an~ m~s of a particular community. It may well be the case that a community
believes m the myth that homosexuality is "evil." Such a myth is often bolstered
by an appeal to God. Toe ideal of public reason serves the purpose of helping us
What is Postmodernity Anyway? I 7
to decide when such myths illegitimately threaten to suppress individual rights
and legitimate groupexperimentations. Toe word "legitimate" implies the institu-
tionalization of minimal nonnative standards which prevent a community from
degenerating into violence against groups or individuals, such as homosex.uals
and women, who are not defined by the community's myths as fully "human,"
and, thus, as "true" participants in the community. "Constitutional essentials" in
Rawls serve the exact purpose of providing the minimal nonnative standard both
for legal legitimacy and for the protection of the community from its own
prejudices.
But the emphasis on tolerance also denies that myths can be completely
cleansed from political ande ven legal life, which is the second difference between
the thinkers of analytic jurisprudence and Habermas' conception of an enlightened
political and legal order which separates myth from political and legal life (if not
from social life). 8 Indeed, the very emphasis on tolerance implies that different
myths, religious commitments and moral beliefs are unavoidable and inevitably
continue to maintain a hold on human beings. Isolating the notion of a tolerance
of difference, in other words, would not be necessary if various groups did not
cling so stubbomly to intolerant ideologies-for example, combative, fundamen-
talist religions. In a country such as the United States, where a substantial
proportion of the population are fundamentalist Christians struggling for the
incorporation of their religious views into political life, it would be difficult to
argue that we have achieved anything close to complete secularization. Rawls,
too, in his latest writing, realizes just how far we are from the completed process
of secularization in politics and even in law.
This realization and its corresponding emphasis on tolerance may well explain
why there has been little or no discussion of historical periodization within
analytic jurisprudence. Rather than focus on the ideals of modemity, there has
instead been a re-envisioning of the ideals understood to be inherent in constitu-
tional govemment. Clearly there are shared presuppositions between analytic
jurisprudence and the thinkers of modemity such as Jrgen Habennas. 9 These
presuppositions obviously include an emphasis on public reason and sorne theoret-
ical elaboration of mini mal conditions of justice that justifies a limit on communi-
tarian myths. Given these shared presuppositions, a numberofthinkers inftuenced
by Habermas stress bis relevance to debates within American jurisprudence. m
Critics of "postmodemity" like Habermas himself have not realized that these
same presuppositions are shared by the writers who have been lumped together
under the tag "postmodem." On the other hand, due to the clichs that have
come to be associated with deconstruction, the usefulness of deconstruction to a
conception of a legitimate legal and political arder has been dismissed. n Jacques
Derrida has recently made bis position clear in bis statement that "nothing seems
12
... less outdated than the classical emancipatory ideal. " He has also insisted
on the centrality of public reason in the university system as a guard against one
of the focal myths of modemity. That myth, as he understands it, elevates
 8 / The Philosophy of the Limir
technology, and with it instrumental rationality, to the position of a new God.
And on the issue of divergent lifestyles, even his critics 13 recognize that there is
an emphasis in Derrida's writing on tolerance of difference. Furthermore, as we
will see in the second chapter of this book, he is certainly suspicious on ethical
grounds of communitarianism, if the "new" communitarianism is understood,
that is, to resolve ethical, political, and legal questions of the day by invoking
the current conventions of a given society.
On the whole, critics of postmodernity have overlooked the ethical and (X>litical
affinity of Derrida's writing with recent, liberal analytic jurisprudence. 1 use
"affinity" deliberately; there are also significant differences between the writers
of liberal analytic jurisprudence and the thinkers labeled as "postmodem." Por
now, however, 1 want only to note that this insistence on shared presuppositions
would seem strange, indeed, to Derrida's critics who accuse "deconstruction" of
being unable to help us in any way to think concretely about justice, law, and
14
politics.
Toe error of "deconstruction," so the argument goes, is to remain mistakenly
caught up in the attempt to philosophically spell out the "constitution and institu
tion of politics in Western culture" 1~ prior to actual politics. This error then, is
responsible for Derrida's emphasis on a quasitranscendental analysis rather than
on the emprica! research necessary for resolving social debates on the leve) of
16
actual politics. Instead of completely disagreeing with this interpretation of
"deconstruction," I will show why the continuing emphasis on a quasi~~_en
dental analysis is crucial to justice aiid, more specifically, to a conception of
justice that promotes, notjust allows, legal transformation. Throughout this book,
I will suggest that the central difference between liberal analytic jurisprudence and
deconstruction lies in their divergent opinions on the desirability and possibility of
thoroughgoing social and legal transformation. This difference tums on what I
will describe as the unerB:Sablemomeo! 9( .u_topi~j~m ~b.tch is inherent in
* "(!~__9_ns_m,i_ction"and in the ~ting of Emmanuel Lev_ioas.90 the ethi~-~~lation.
Toe liberalS-SuChaSR.aWlslldNagel are undoubtedly more suspicious of utopi
anism.
But this difference certainly does not imply the appropriateness of the identifi
cation of "postmodem" thinkers with the rejection of the most basic liberal
presuppositions. This set of rejections has been repeated only too often: the
rejection of public reason, universal ideals of justice, and the rule of law, as well
as the suspicion of ali forms of social stabilization, even when couched in tenns
of community ideals. 1 have already suggested that Derrida himself has explicitly
endorsed the traditional, emancipatory ideals he purportedly rejects. So these
rejections certainly do not follow from what he writes. Of course, the more
profound criticism propases that in spite of bis political commitrnents, Derrida 's
philosophical enterprise actually contradicts the very emancipatory ideals he
would li.ke to support. Levinas' worlc is less frequently attacked because it is less
well known to Derrida's critics. In answer to these critics, 1 will explore how
What is Postmodernity Anyway? f 9
Derrida 's specifi.cdeconstructionist interventions, and deconstruction more gener
ally, once it is reconceived as the philosophy of the limit, are. t.he expre~si~n of
an ethical positioning perfectly consistent with his stated poht1cal conv1ct10ns.
But in a more comprehensive manner, 1 will also argue that it is the intersection
of the writings of Jacques Derrida, Jacques Lacan, and Emmanuel Levinas t~at
provides us with the "new" ethical configuration I portray in .~is boo~, that is,
an ethical configuration new in its difference from both the cnt1cal social theory
of Jrgen Habermas and the analytic jurisprudence of Nagel and Rawls.
But !et me return to why I cal! this intersection an ethical configuration. Severa!
years ago, I argued that the relation between the "modem" and the "postmodem"
could be understood as a constellation, borrowing the phrase from Theodor
Adorno. I will discuss in detail Adomo's metaphor and its ethical significance in
the first chapter of this book. Now, however, looking back over this argument,
I would like to suggest that there are difficulties with the transferring of Adorno's
and certainly of Walter Benjamin's metaphor of constellation to the context
of the debate over the relationship between the "modero" and "postmodem."
Constellation is obviously a term borrowed from astrology. Toe relevan ce of its
origin Jies in the fact that the clustering of stars into a constellaton allows s~me
access to the thing itself, the stellar bodies; in other words, the constellat1ons
constructed by the astrologer from without, like words in language, allow us to
decipher the realm of things in their historical relations, ~at ~s, the constellations
which they bear within themselves. Further, a constellat1on is not constructed or
designated by a set of norrnative ideals or their supposed rejection; thus, it stands
outside of the debate o ver how historical periods are defined in tenns of changes
within the realms of justice, law, and politics.
In Adorno, as we will see in the first chapter, the metaphor of the constellation
has specific ethical content. To briefly summarize here: AjC!_f!lO's metaphor of
constellation is asscx;iated..with .the.ethical-pmition wbich (;ritiques.!dealism for
slll.otheri"iig-ih;-~ject in a conceptual __~_e_ai:_~tus.
Put differentl~, constellat~on
allows one to decipher the truth of the object without imposmg an outs1de
definition. Feminist Jiterature, for example, frequently relies on constellations as
meaos of deciphering women's experience as objects of masculine desire in_~uch
a way as to reveal a truth behind that experience which differs from the defimtmns
11
generally imposed on women's experience by the gender hierarchy. Constella-
tions, in other words, allow the experiences of women to be decoded.
But historical periods are not just deciphered, they are always in part con-
structed. As we have seen in the debates over what constitutes the "modem" and
the "postmodem," these categories are also norrnativ~ly. constructed. Corn>~
quently, the metaphor of the constellation i~ problemattc .n the context. of thts
debate since its power relies on the assumptton that the obJect to be dec1phered
is already there prior to the decipherment, that is, it cannot account for the
normative intervention of the debators themselves. As a result, 1 have rejected
my earlier formulation.
JO / The Philosophy ofthe Limit
In fact, there are two additional reasons to be suspicious of this attempt to
describe the continuity of the "modero" and the "postmodem" via the metaphor
of the constellation. 1have suggested already that the metaphor ofthe constellation
cannot adequately account for the constructedness of the attempt to designate
historical periods. Even if one assumes that there is no rigid divide between the
"modero" and the "postmodem" and, therefore, that the best way to challenge
the rigid divide would be to somehow show the connection, this attempt still
implies an acceptance ofhistorical periodization. Yet, ifthere is one theme that
unites Derrida and Levinas, it is the rejection of the belief that there exist
nonnative or descriptive criteria that can be used to successfully distinguish
historical periods one from another, particularly if this periodization is teleological
in fonn. This rejection <loesnot mean that their work is ahistorical, or that they
,deny the possibility of transfonnation. Things can and do change; they merely
question a view which couches ehange in terms of rigid, historical periodization.
The rejection of periodization implies a challenge to a teleological conception of
history that has remained implicit in the debate; for even when the form of the
debate attempts to show the connection between modero and postmodem, this
attempt still implies the designation of historie al periods. For a theorist of mOOer-
nity such as Habennas, on the other hand, the need to distinguish between periods
is crucial if one is to adequately defend what is essential toan enlightened political
order. The emphasis is not on connection but on distinction. Por example, as I
have already suggested, the distinction between the premodem and the modem
is thought to rest on the teleological development from mythos to logos. But
whether or not connection or distinction is emphasized, the tendency in the debate
has been to constitute the postmodern in terms that I reject.
It is undoubtedly the case that the writers I discuss in this book~Jacql,!e_S
Derr_ida, __
Emmanuel Levinas, and_Jacques Lacan-reject the idea that the move-
me'!_t_fr?m ~y~~--!to _l_o_go_s
__ has been or can be conij,Ieted. indeed, they have
ethically criti(jued the view that this move has beCn omJ)leted on the grounds
that this view is itself mythical. I begin the book with a discussion of Theodor
Adorno precisely because he was perhaps the first thinker to ex pose the Enlighten-
ment, understood to represent the completed move from mythos to logos, as itself
a myth. This myth is dangerous from an ethical standpoint be.cause it denies its
own mythical structure, parading as the universal truth of mankind and, thus,
foreclosing in advance the very legitimacy ofits challengers. In both Adorno and
Derrida, the ex.posureof myth-and, in Derrida 's case in particular, the ex.posure
?f ~e mythological structure of the origin of legal authority~is itself ethically
msptred because it seeks to portray the danger of upholding current ideals as
unshakable truth. It is important to note that the argument that the movement
from mythos to /ogos cannot be completed, even if it accepts that ali myths are
not repressive--1 have argued that myth is a powerful critica/ tool in feminist
18
theory --does not endorse mythos rather than logos. lt is nota retreat into what
is designated by teleological conceptions of history as the premodem.
What is Postmodernity Anyway? I 11
However, given the challenge to this selfsame teleology, the very usefulness
of the tenn "postmodern" is also called into question--one reason, of course,
why I believe it is acceptable to begin this book with Adorno, even if Adomo's
work clearly "predates" the work of the writers who are labeled "postmodem."
Worse yet, the argument over whether or not one should endorse the "modero"
or the "postmodem" is often a poor ex.cusewithin curren! debates for academic
mudslinging. These "code-words," which overwrite important moral, ethical,
and legal disputes, are by now worn out from overuse. At this point, they function
primarily to obscure subtle, theoretical differences between disputants and, there-
fore, do not help enlighten us about the ethical and political stakes in the debate.
There is, then, a rhetorical reason for questioning the continuing usage of these
tenns.
But does that mean that there is no content to what has come to be called the
"postmodem"? Is there nothing to it except academic haggling? The answer, I
think, is no. This leads me to my justification for reformulating the intersection
between Derrida, Lacan, and Levinas as an ethical configuration and rejecting
my earlier fonnulation of the relation between the modero and the postmodem
as a constellation. 1 want to suggest that the "postmod~~-" ~hould be und~!5tood
asan allegory and that, as such, it represents an ethical insist~nce on the limit,to
"J'Os!live" descriptions of the principies of mod_~rrii_tyJong~elaboraJ~ as the "last
wonl"on "truth," "jusffce~;,"lglifneSs-:"etC. I will return in the Conclusion to
as
why I havC'rehiliied deConStru.tiOntne-philosophy of the limit. This definition
of the postmodern as an allegory which ex.pressesthe desire for a beyond to the
current definition of Enlightenment ideals explains why I begin with Adorno,
whose critique of ali fonns of positivism is clearly the forenmner of "postmodern"
writings. Although in the Conclusion I will stress the difference between Adorno
and the ethical configuration I evoke in this book, his contribution must be noted.
This emphasis on the limit and, as we will see, on the portrayal of justice as
aporia is crucial to these marginalized groups whose well-being and very lives
may depend on legal transfonnation. Thus, it is nota coincidence that the cases
I discuss in order to demonstrate the legal power of the ethical configuration I
evoke involve the rights of women and of homosexuals. Indeed, Jacques Lacan
is included as a contributor to this ethical configuration precisely because an
aspect of its "newness" lies in its emphasis on psychosexual dynamics and,
more specifically, on the crucial importance of questions of sexual difference to
problems of justice and legal interpretation. One particular formulation of the
public/private distinction is thus challenged so as to allow questions ofthe gender
hierarchy as they relate to women and to homosex.ualsto be noticed by the legal
system. At the same time, 1certainly do not reject the centrality of the distinction
itself to a legitimate legal system.
Because I have advocated that the "postmodem" is an allegory, we can now
understand yet another dimension of my choice of the word "configuration." An
allegory necessarily involves figures and figurations, in this case, that depict the
12 I The Philosophy of the limit

lim.it of institutionalized meaning and established communitarian nonns. For

example, in chapter 3, 1have painted Derrida's own ethical positioning using the
figure of the Chiffonnier. To summarize, theo, I portray a configuration which
gives body to the allegocy of the ethical limit on any "positive" normative 1
description of what constitutes modernity. Even if this "limit" is not to be
understoodas a "new" historical period, even if the ethical confi.guration I offer
cannot be rigidly separated from the "modern," it can still help us think about The Ethical Message
justice and legal interpretation differently from the conceptions that have domi-
natedanalytic jurisprudence and critical social theory. As we will see, for margin-
of Negative Dialectics
alized groups, this is a difference that malees a difference. But let me tum now
to the portrayal of the intersection of Derrida, Lacan, and Levinas as an ethical 1be need to let suffering speak
configuration tbat has important implications for the definition of justice and for is tbe condition o ali trolh.
-Theodor Adorno, Negative Dialectics
a concept of legal interpretation.

t. Introduction

In Negative Dialectics, Adorno critiques Hegel for betraying the IOOSI radical
implications of bis own dialectic in the name of a comprehensive, encircling
totality. To.is critique, the ethical dimension of which l hope to revea!, gestores
toward a deconstruction, which is nevertheless an appropriation, of Schopen-
hauer's ethic of pity. In referring to Adomo's project, 1 use the word "ethical"
deliberately. Adomo's suspicion of tbe nonnalizing effect inherent in the general-
iz.ation of one behavioral system of "rules" led him away from the attempt to
determine a morality and toward a more properly ethical conception of the
relationship with the Other. For my purposes, "morality" designates any attempt
to spell out how one determines a "right way to behave," behavioral nonos which,
once determined, can be translated into a system of rules. 1)1e..etbif~ relation,
a term whicb I rontrast with mnraJi~se$_!Jlstead on tbe kind of ~~de
ffillst become in order JQ4evelop,.a, .~91l'!'!Qlffl-v~.-~ti,--the -Toe
{)thei-.
m
COOO:)ftefficarelation, in other words, is a way ofbeing ili'e-world-that
spans divergent value systems and allows us to criticize the repressive aspects of
competing moral systems
In bis critique of Kant, for example, Adorno addresses tbe mode of subjection
he associates with the Kantian subject of morality. He critiques the kind of person
we are called upon to become if we are to do our moral duty under bis own
interpretation of Kant's categorical imperative. Like the early Hegel, Adorno is
concerned with the ethical relationship in general. Adorno seeks to uncover just
how one engages with tbe other in a nonviolative manner so that the Hegelian
aspiration to reciprocal synunetry and mutual codetennination can be achieved.
He argues that a truly nonviolative relationship to the other is foiled by what he
ca11sthe dialectic of Enligbtenment which, for him, subsumes the Kantian theory
of the subject of morality.
1
In tbe story that Adorno tells in Negatiu Dialectics, tbe Kantian subject, as

13
J4 I The Philosophy of the Limit
a being of the flesh, falls prey to the endless striving to subjugate bis own impulses
and thus to secure the possibility of moral action. Reason is geared solely to the
preservation of the subject, equated here with consciousness; because of Kant's
separation of consciousness from the flesh, the subject is pitted against the object,
which includes that aspect of the subject conceived empirically. Conceived in
this way, the subject-object relationship necessarily gives rise to the master-slave
dialectic. The master-slave dialectic is played out in our relations to nature, taken
here to mean both against the extemal world of things, and against our internal
"nature" as physical, sexual beings. Ultimately, the master-slave dialectic takes
its toll. The thinking subject's striving for mastery turns against itself. The part
of our humanness that is "natural"-sexual desire, our longing for warmth and
comfort-succumbs to a rationality whose mission is to drive into submission an
essential part of what we are. The subject itself becomes objectified, an object
among other objects. Relations between human beings degenerate into manipula-
tive interaction, the goal of which is to master the other. Relations of reciprocal
symmetry and mutual co-determination, in Hegel's sense, are thwarted, if not
completely destroyed.
As I hope to show, Adorno makes the pointJh~.without the recovery of a
p~ayful innocence achiev_aj ~ugb_ the recOntlCCtion with the Other in. 0J!~self,
one cannot become .a )Juman being capable of nonviolative relatills to the Other.
Inthis sense, his dialectic of''aiural" history is "directive"; it calls on us to ''be"
differently in our relationship to the Other. The emphasis on the "natural,"
desiring subject, the importance in Adorno's theory of the dissolution of rigid
ego dictates, the suspicion of the normalizing impulse in the call to duty, are anti-
Kantian, at least on the traditional reading of Kant; but these emphases do not
make Adorno's message anti-ethical. Adorno denies that the ethical must be",
based on the will to limitation and control rather than on the desire for fulfillment.1 /
He holds, rather, that the will to limitation, in the call to do one's duty, itself
replicates the master-slave dialectic and eventually undermines the possibility of
a nonrepressive basis for Kant's own understanding of the importance of goodwill
..
in relations to others.
2 circmstaiiCCS.fCorriirrniciifivCfreedm "reality would have found its substan-
Toe young Hegel was also specifically concerned with the "repressive" aspects
of Kantian morality and, more generally, with the havoc unleashed by the Enlight-
enment's radical divide between subject and object, mind and nature, and body
and soul. Hegel's system aims to reveal the state of reconciliation underlying a
social fabric violently toro asunder. Adorno challenges Hegel on the grounds
that Hegel's system tums against the very dialectical reciprocity and mutual
codetermination he sought to reveal as the truth of reality. According to Adorno,
Hegel's system replicates the selfsame violent relationship to the Other which it
purports to overcome. Hegelianism becomes a form of imperialism over the
object. Adorno rebels against Hegel's ontological identification of meaning and
being asan imposed unity. Nonidentity denies that aconcept is ever fully adequate
to its object. Yet Adorno remains an immanent critic of Hegelianism.
Ethical Message of Negative Dialectics / 15
By taking Adorno's Hegelianism seriously we can win back a degree of freedom
within Adorno's own categories. Without keeping his Hegelanism in mind, it is
ali too easy to misinterpret Adorno's "philosophy of redemption" and his dialectic
of reconciliation in such a way as to miss its ethical aspiration. If we consider
Adorno's staternent that "the idea of reconcilement forbids the positive positing
of reconcilement as a concept" 3 within the context of bis attempt to put Hegel 's
categories in motion from the inside, we can decipher what Adorno meaos and
does not mean by that statement. As I have already suggested, Adorno argues
that the Hegelian reconciliation of the dichotomies in a totalizing system turns
against the mutual codetennination Hegel purports to show as the truth of ali
reality. In Hegel's Logic, the transcendental categories such as Being and Essence
are unfolded in their reciproca) determinations against what they are not-to be
something detenninate is to be something in distinction to what it is not. The
detenninations of the categories ultimately are uncovered as reciprocally codeter-
mined in the unfolding of the Absolute Idea. Toe deconstruction ofthe philosophy
of substance and of constituted essences in theLogic shows us how the boundaries
which give us the appearance of the existence of atomic entities yield to the reality
of mutual codetermination, the dialectical permeation of purportedly opposite
categories. The philosophy of substance which asserts that an entity can be
understood on its own is exposed as a fallacy. Instead, the relata are shown to be
intemally interrelated, first negatively, in their contrastive relationship with that
which yields theil' self-definition, and then ''positively," as the "belonging to-
gether" in and through which the relata become what they are.
Toe gathering together of the multifold in the logos culminates in the self-
recognition of Reason in Being. The awareness that the self-conscious subject
comes home in and through the relationship to othemess is what Michael Theneu-
issen has called "communicative freedom." Communicative freedom is the truth
of the belonging together of the relata. (:or_nnlllllieativefreedom, _in.,o~er wajs,
is the coincidence of love aed freedom in- which "one part __ experiences the
oth_~r-not as boundary but as the condition for its own realization.'"' Under the
tive 'truth' and thus become fully real ... everything would be related to such
an extent that the relata would not retain theil' separateness ...s Under Theunissen's
interpretation, which is also the one I adopt, the full integration of the relata
is what Hegel meaos by Absolute Knowledge or "self-recognition in absolute
othemess."
For Adorno, communicative freedom cannot be thought of as the unification
of the relata into a comprehensive totality without violating the coincidence of
love and freedom. Toe "belonging together" of the relata in conditions of freedom
can only be realized if the difference from the Other is maintained in a dialectical
interaction that does not yield to the ontological unity of meaning and being.
Hegel's tendency to turn Geist into a deified subjectivity undermines the freedom
to be in a relation of reciprocity to otherness because the status of the Other as
 16 f The Philosophy of the Limit
Other is ultimately denied. Yet "communicative freedom" is not simply rejected,
it is redefined within Adomo's deconstruction of the truth of interrelatedness as
the Geist that encompasses both self and other. For Adorno, Hegel's Logic
exhibits a tension between his brilliantly executed deconstruction of the metaphys
ics of substances (a perspective marked by the indifference and unrelatedness of
elements) and the metaphysics of constituted essences (a perspective marked by
the subordination of elements to dominant categories), on the one hand, and bis
tendency to reintroduce substance in the form of a reified Spirit, the imposed
unity of subject and object, on the other. As Adorno remarks, "The reconciled
state would not be the philosophical imperialism of annexing the alien, if the
proximity it is granted remains what is distant and beyond the heterogeneous ami
beyond that which is one's own.',1;
"Reconciliation," as I will use the term in this essay, is Adomo's redefinition
of communicative freedom as the state beyond the heterogeneous as absolute
otherness and beyond that which is captured by the Hegelian Concept. Reconcilia-
tion is the art of disunion that allows things to exist in their difference and in their
affi.nity Adorno, then, is a philosopher of reconciliation in a very specific sense.
,His defense of a reconciled state is presented in the name of the plural and of the
different. Relations of reciproca! symmetry can only come into existence if the
~er re~ains unassimilated. Once the unification of the relata into a comprehen-
s1ve totahty can no longer be conceptualized as the Concept retuming to itself in
an eternal present, the ideal of reconciliation can be shown or disclosed but not
conceptualized.
The "philosophy of redemption" is the counterpole to Adomo's assertion that
7
"the whole is false. " The "normative standard" of communicative freedom cannot
be conceptualized as the truth of an already.achieved reality. Toe ideal 's critica!
~wer lies_preci~ly in its capacity t~--~~ajJbt-WOFld-as distorted ancl _indigent
tn_~9IllP:inson w1th the reconci!~-~~~: lt should be emphasized, however, that
Adorno m Negative Dialettr denies that we can conceive of reconciliation but
this denial is not the same as Schopenhauer's insistence on the transcen<knta1
disjuncture between reality and utopia. That disjuncture renders the dream of
reconciliation as an illusion of the desiring individual an illusion that those who
pierce the veil of Maya leave behind. Schopenhaue/s message is clear: we can
?nly find peace by forsaking the futile striving of those who seek to be at home
m the ~~rld_. Ado~os as~ira~ion is the opposite. In bis view it is Orilytiy
developmg perspect1ves wh1ch 11luminate our state of homelessness that we can
begin to glimpse through the cracks and the crevices what it would be to be at
home in the world. 11!~-~
__,,,. ~e_mp~-v~ perspectives displ~_e_ and e.s~g_e the
,.,. World so that_we are made aware that we This exercise however
1?
is not inten~ simply teacb uS to cirsake- the world. Tbrougb the d:velopmen;
of redempt1ve perspect1ves we can resist "consummate negativity" without on
the other hand, perpetuating the myth of the ever-thesame, or, put in pop~lar
language, the myth that there is "nothing new under the sun." De~
Ethical Message ofNegative Dialectics / 17
negation, in Adorno, becomes the form in which every claim to identity conceals
its nonidentity: the illusion of identity is destroyed, and wi_lhit the so--called
~is_t perspective 8 whi~h aSsumes that so_ciallife cannot be radically transfonned. ""
Accrding to Adorno, in a conupt world one can only teach the good life through
immanent critique of the fonn of moralistic self-righteous subjectivity itself. Yet
in bis dedication to Mnima Moralia, Adorno nevertheless justifies his reliance
on aphorisms against Hegel's own dismissive gesture toward them precisely
because aphorisms allow for the expression of subjectivity, even if that subjectiv
ity takes on the voice of the isolated individual.
In bis relation to the subject Hegel does not respect thedemand that he otherwise
passionately upholds: to be in the matter and not always beyond it, or to
penetrate into the innermost content of the matter. As today lhe subject is
vanishing, aphorisms take upon themselvesthe duty to considerlhe evanescent
itself as essentiaJ. They insist in opposition to Hegel's practice and yet in
accordance with bis thought on negativity:"'thelife of the mind only attains its
truth when discovering itself in absolute desolation.'"'
Toe unalleviated consciousness of negativity holds fast to the possibility of a
different future. As Adorno remarks, "What would happiness be that was not
measured by the immeasurable grief at what is. " 10 He is in eamest when he argues
that bis melancholy science should be placed in the region of philosophy devoted
to the teaching of the good life.
I have already indicated that there are severa! ethical dimensions in Adomo's
work. Each can be understood as an aspect of the critique of tota}_i_ty_ on. which
~gve __ diajectic&-is-premised. Toe first is the revelation of the "morethanthis"
in nonidentity. Toe presentation of the "more-thanthis" serves as a corrective to
realist and conventionalist ethics with their shared impulse to enclose us in our
form of lite or language game. Adorno appeals to nonidentity to undermine what
1 _call__!h.e ideology .of_les_s~r e~-~tiQDs. The second dimensin lies in the
..fI:eedom
aj~finition ~f_C.Q!llffil:lllif:f!v'? _gftbi;:"utopian vision of .\e
as..the_c;:<>_nt~t}!
recoOCliiation. The th.irdis expressed in the critique of the Kantian subject of
ffioralfy.For Adorno, a moral subject which does not know itself as a desiring,
natural being will not recover the compassion for others that can serve as a non
repressive basis for moral intuition and, more specifi.cally, of the goodwill. Toe
critique of the Kantian subject of ethics emerges from the diaJectic of natural
history. To separate the dimensions of Adomo's message in the way I have just
done is admittedly artificial, but it is necessary to decode bis own ethical message.
The redefinition of communicative free.dom, the dialectic of natural history,
and the unleashing of difference in identity are ways of approaching Adomo's
immanent critique of Hegel's Logic. They are, if you like, different emphases in
the unfolding of the immanent critique, different ways of elaborating negative
dia1ectics. My justification for artificially separating the dimensions is strategic;
the separation helps us to distinguish Adomo's ethical message. Once we remark.
18 I The Philosophy ofthe Limit
the ethical message of Adorno' s negative dialectics, we can read bis commentaries
on the subject and on instrumental rationality, as well as bis critique of common
sense as tendering a powerful warning. This warning does not, however, degener-
ate into a barbinger of inevitable d.isaster; in other words, Adorno does not
d.isparage the very idea of ethical mediation as simply more of the same. It should
not be forgotten that for Adorno "he who dies in despair has lived bis life in
vain." 11
The Recoostellation of Hegelian Categorles
Nonidentity: The Critique ofTotality
Adorno brushes aside the accusation that bis negative dialectics is just one
more replay of a tired and outdated left-Hegelianism with the following remark:
The fact that history has rolled over certain positions wi11be respected as a
verdict on their truth content only by those who agree with Schiller that "world
history is the world tribunal." What has been cast aside but not absorbed
theoretically will often yield its truth content only later. 12
Toe unleashing of the "truth" of Hegelianism allows Adorno to show that the
Hegelian "system was the source of Hegel' s dialectics, not its measure. " 13 Indeed,
according to Adorno, the system turns against itself, cboking off the freedom of
dialectical movement by the self-containment of the Concept. Once freed from
the circle of identification-the closed circle of the infinite-dialectics implies
nonidentity between concept and thing. Nonidentity, in other words, is dialectics
taken ali the way down. For Adorno, Hegel's central error les in bis attempt to
recuperate negativity in the Concept self-consciously retumed to itsclf. This
attempt leads Hegel to envelope othemcss in an all-encompassing subjectivity in
spite of himself. Ali bis statemcnts to tite contrary notwithstanding, Hegel left
tbc subject's primacy over the objcct unchallenged. It is disguised merely by the
semi-theological "spirit" within its iodelible memories of individual subjectivity. 14
By reifying Geist into a deified subjectivity, Hegel's idealism involves an
"imperialism" of tite subject over the object, an imperialism which negates the
very possibility of reconcilement tb.at it purports to reveal.
ff1:ge1 tberewas a coincidenceof identity md positivity; the inclusion of all-
identicaland objective tbings in a subjcctivity expanded and exalled into an
absolute spirit was to effect reconcilement. On the other hand, the force of the
entirety that wOiksin every definition is not simply its negation: that force is
~lf negative, the untrue. Thephilosophy of the absolute and total subject
IS a particular one. The inherent reversibility of the identity thesis counteracts
~nciple of its spirit. If entity can be totally derived from that spirit, the
spmt 18 doomed to resemble the mere entity it means to contradict odlcrwise
~- and entity would not go cogcdter. lt is precisely tbe insatiable identity
principlellw--by~-- Wlwtolu-
alcs ootbiog tbat is not itself lhwarts lhc reconciiemeot for wbicb it mistakcs
ilself.IS
Ethical Message of Negative Dialectics I 19
Toe attem_m:to achieve ..l!~--se~f~_~gn!\~~}Il __ l!i!~~~-te__ o_!11~~ss, ~J;!!h.er
words- VTolates the Othe.Ll?!_Q~y!!-g_Jt_s
9_the_~ess to the Concept.----Wthout the
~---------- - . - - -----
cOSureof the circle, the Concept can no longer fully incorporate objectivity as
its own expression. The object, in other words, escapes ownership in its noniden-
tity witb the Concept. This failure to achieve reconcilement becomes "the motor
of disenchantment"-what Hegel called the ..highway of despair"-:-which un-
leashes tbe dialectic previously rigidified in the frozen dance of the Concept
retuming to itself in an eternal present. Thought, confronted with its inabilty to
achieve supremacy, turns aganst itself. The Hegelian system, according to
Adorno canies wthin it tbe seedsof its own destruction as system.
By negating the concept of 1he limit and theoreticallyassuring itself that there
always remains something outside, dynamics also tends to disarm its own
product, the system.16
Toe ''truth" is in tbe confrontation, in the nonidentity between concept and
object. The "truth," in other words, is not to be found in the object, nor in the
fonn of thought of the object, nor in the unity of subject and object in the Concept.
Toe object can neither be grasped in its entirety by the Concept nor can it be
known in its inunediacy. Adorno ~k ~_!i~art-~J!~g~IJa!l_insigbt i_gto_~~
inevitable co~~~_ia!ci-~-9f ii_:~!~.Y Yet, of hi~ re~sal to
completeexperience in an infinite -~hich total~- its _ffintem~_n~ects _a
~tiiifTOCCgfott,.~fOffcsel'sabSWlllel~jsm. ''The
tjr.cle, ati_!!-' -nthe ~nd alw_ays id~n~~es itself aloiie-..y_!
C
drawn by a tbinking that tolerates nothing ou~.f.!!
~egelian
1
system, as a reslt,is undennined by the very insight into the
unfolding of negativity whicb is its hallmark. Toe nonidentity inherent in absolute
identification tums against tself. Negativity)s the esc~__Qtherness. J~-~~ered
by '"tite Io1~in~~n." Toe ~tniili"-ofnegativity is."the negative reaci~
~part of the knowledge that penetrates the object-10 other words, extm-
1
guished the appearance of tbe object being directly as it is. : Ad~~~~.al-
m, with its recognition of the constitum_ ~~ide, rems~ th~ ~egehan
category of essence not as "background world" but as the non-1dentlty mherent
*
~ the limits of tbought aodthe deconstruction of totality.
(E]sseoce passes into that which lies concealed beneatbthe facade of immedi-
acy, of supposed facts, and which maleesthem as they are. It comes to be the
Iaw of doom. Thus far obeyed by history ... it can be~ :!'11Y
by the
contradiction between what things are and what they claim to be.
To deny essence altogetber would be to side with appearance if things were
really what they are clamed to be within any cunent convenbonal system of
definitioo. Siding with appearancewould reinscribe identity thinking. Toe reality
of the tbing would be found to be fully expressed in its concept. For Adorno,
essence is expressed as tbe concept of negalivity tbat mates the world tbe way
 20 I The Philosophy oJthe l.imit
1 Ethical MesJage of Negative Dialectics f 21

it is, bu~ne~tivity ex~sed as "essence" can only be known indirectly througb it transcends precisely in those respects in which it negares the possibility of
the nomdentity of sub,ect and object; negativity is not to be hypostatized as the transcended stage and canying its bit along transformed by the determinare
absohtte Otber. .,-::; actuality of the later stage. The actuality of the moment then is determnate
W~ can now s~ the difference between Adorno's and Hegel's under either with respect to a possibility that il excluded but with respect to a past
actuality that it negates and subsumes. Theremay well be many elements in
standing _ofnega?vity. For Hegel, negativity as a detennining relation to tbe
the moment which are not detenninate either with respec:tto what is rational in
Other .~~tely lS explained as the inevitable incompleteness of brote entities. the moment itself. But they might become determinatewhen the moment itself
Negati~1ty, m odie~words, is the expression of an infinitc, in contradiction with is totalized ami negated by its own executioner. n
the ~te ~ontents 10 and through which it is embodied. For Adorno however,
~!llectis:_~ by way o(~qu~_.Qf_~ ~tali~.!1.BJDll!ft-:-A~ takes Totality, in the Hegelian dialectic of history, "has reason as a selective princi-
~ously _Hegel s 1?s1gbtthat fimte reality is not adequate to its concept. Indecd pie. Reason which proceeds witb necessity distinguishes within a situation be-
( tt is ~1~ly madequacy of finitude to its concept that releases Adomo's tween the truly actual and the adventitious.'m In Adomo's musings on Walter
~gabve dialecbcs. Wbereas Hegel's dialectic in the Logic unfolds through the Benjamin's statement that "hope is only for the hopeless," however, it becomes
mco~plete1;1Css of the categoriessuch as Being and Essence until the progression clear that Adorno also rejects totality as a selection principie to distinguish what
culnunates m self-reftection of the Absolute Idea, Adorno's immanent critique is crucial to tbe unfolding of Reason. Reason as a selection principie denies
cancels the pnvilege o~ ~nr by its uncovertng of difference in identity. certain groups, peoples, and nations "actuality," on tbe grounds that they are
Nev~Iess, negative dialecttcs is not true for ali time. It is not aootber incidental to the narrative of reason in history. By so doing it vio lates them,
first pnnc:iple. To make negative dialectics another first principie would be to demonstrating once again that ~~gel's..u_ni_fy!JJ.g_l1iri.U~ ,_c~~ve force. In i~
b~tati77 neg~~ty in the exact way Adorno wams against. For Adorno, tben, worst form, Hegel's unifying spirit becomes a "justification" for tbCiinperialism/
neg:m~e ~ectics IS not a metbod; nor is it simply material reality, as if material of the West. The dialectic-so the story goes-proceeded in the way it did
10
reality 1tscon~~torincss could be presented to us without mediation tbrougb because it is only in the history of the West that Reason finds its adequate
~- ~~~ga~!~-~~cs.!s ~~~iled rcality, or expression.u Adorno uses bis dewns.truction of the totality inherent in J,e~l's
( to l:ieound m "thecogitative confron~ ~-introuc-~ategorical n~VClfyanfoex.c,ie)iii
tri~ of Hegel' s own unfolding of t!_i_~ _history_QfS.~~ In the standard interpre--
To -........i di.al tationOTHegef,tlietelSOO categorical novelty, only categorical "improvement,"
I"'""'.""":"ectkally meaoslothink in contradictions,for the salte of the of what has airead.y been achieved. Adorno insists on tbe possibility of a future,
CODtradictioo
once
contradiction
' experienced in the tt.;.... and ..... ;.,.. that --
""e......,, A
""'6 '-UIIUll&U'-bOll, a future in which the retum of the negated would modulate the establisbed
m rcality is a Conlradicti.on against rca]ity.
categories allowing for the creation of what is truly new. Toe ephemeralnature
The Cooditions in wbich ncgativity can be overcome are those of a rcconcilcd of tbougbt allows for the rising of the new, of tbat which was excluded from the
~Id-a world whicb ~an be brougbt into being only if tbe antagonistic entirety grasp of tbe Conccpt or pushed out by the pressure of the Concept' s progression.
18
itself oegate.d. Negabve dialectics awaits its decline in a redeemcd world. The eternal present is shattered on the bodies of those who were tossed aside in
the Concept's development.
Rcgarding the concrete utopian possibility, dialecttcs is the onlology of tbe Wby does Adorno proceedthrough negative dialectics to introduce the "truly"
wrongstate of things. Tbe rigbt state of thiogs wou1dbe free of it. i1 new and the possibility of categorical novelty from within the deconstruction of
There . b Hegel's own system? Adorno and Hegel bothconsiderthe philosopby of reftection
en. "IS an am ivalence in Adomo's use of tbe expression ''antagonistic
pb.ilosophically false and ethically a distortion of relations of reciprocal symmetry.
wiruy. Aoomo to reintroducetbe concept of totality as understood
A,domo, in other words, fortbrigbtly argues that he accepts the most lasting
. thin a oegative dialecttc of history. Sucb a view of totality bowever takesa
different .shape fromtbe absolute infinite tbat totali7.es
its come:its o -L.~ Neville ~iti.._l,q__onof Hegel's I..og~_insigbt that iden~~~_!ifi1le4_=-!!Dif-
has SUCCinctl .,..,_ft..:--.a ~n throu@~ Otberness can no longer be understood asan extemal relation
history: y s--......u.c,u the form of totality in Hegel's negative dialectic of in whicb a self-identified subject stands over and agai,nst tbe object only to find
itself reftected there.
ncw Ohnrwh ... 1,.. ~,...___
---, .. __ ..,_of...__
If Getn can be modelcd 00 tbe negative dillectic of -~.
'""-
tben we bavc a
oflho-nty.
llalO is ddwminaie Widtrespoct to lbe lltlge
We may say that the lm!ls\'e1wting
The individualexisteocedoes not coincide wirh ils cover concept of existence
at large but oeither is it impenetrable, anotberlast tbing againstwhicbcognition
22 I The Philosophy of the limit
knocks its head in vain. The most enduring result of Hegelian logic is that the
individua] is not ffatly for himself. In himself he is the othemess and linked
with others.is
In the philosophy of reffection, on the other hand, the "I" sees itself reflected in
the other but does not see the other looking back. Toe other is reduced to a mirror
for oneself. Hegel's absolute knowledge, self-recognition in absolute othemess,
is the overcoming of the mirror stage, the recognition of the reciprocity of
self-consciousness. But for Adorno, the experience of interrelatedness in an ,,
antagonistic entirety is one of domination and not of communicative freedom. /
Toe "nonnative standard" of a reconciled condition awaits us; it has not been
realized in the horizon of absolute knowledge. But, as already suggested, in
Adorno the dialectic no longer defeats the philosophy of reflection through the
identity of identity and nonidentity as it does in Hegel, but rather the dialectic
proceeds through the "nonidentity" in identity. The shift denies that "the negation
of the negation"-the "positive" reconstitution of an identity inclusive of oth-
emess-is a possible occurrence within thought, even if it is accomplished in the
name of Spirit, which is purportedly the revelation of the truth of the things
themselves. 1tis precisely this identification of things and the Concept that Adorno
denies as an accomplished ''fact."
Toe positive, which Adorno understands in Hegel to ultimately overcome
negation, has more than its name in common with the positivity Hegel fought in bis
youth. To equate the negation of the negation with positivity is the quintessence
26
of the politics of identity for Adomo. According to Adorno, Hegel's recupera-
tion of the negative lends legitimacy to the current state of the world which
it does not deserve. In this sense, the negation ofthe negation in Hegel serves as
ideology.
Against this, this seriousnessofunswerving negation lies precisely in its refusal
to _leve)itsel~ to sanctioning things as they are. To negate a negation does not
bring about tts reversa]; it proves rather lhat the negation was not negative
enough.... What is negated is negative until it has passed. 27
Determinate negation, in other words, can no longer be thought of as a "positive"
result of the negation of the negation but only as the self-canceling of the illusion
of se]f-identity. Yet it would be a mistake toread Adorno's rejection of the
"negation of the negation" as a retreat into "the predialectical stage: the serene
demonstration of the fact that there are two sides to everything. " 28 Instead, it
leads beyond the circle of identification, to a different approach to the object.
The Metaphor of the Constellation
To quote Adorno:
un!fy~g moment survives without a negation of negation, but aJso witbout
dehvenng ltself to abstraction as a supreme principie. It survives because there
i
Ethical Message of Negative Dialectics I 23
is no step-by-step progression from the concepts to a more genera] cover
concept. Instead the conceplS enter into a constellation. The constellation
illuminates the specific side of the object, the side which to a classifying
29
procedure is either a matter of indifference or a burden.
Because, according to Adorno, the thing's own "identity against its dentifica-
tions" can never be grasped in its immediacy nor in its unity with the Concept,
we can only approach the object through a constellation of concepts which
attempts to bring into the light the specific aspects of the object left out by the
classifying process. Toe constellation does not pretend to totali_tyin th~ sense of
fully expressing the sedimented potential of the object. What tt IS u~leash
the fullest possible perspective on what the object has come to be m 1ts particular
context. Since an object only yields itself to us through the mediation of concept,
the goal is not and cannot be the pure illumination of the object, beneath the
30
Concept, even through the disc]osure of its rightful name. The sedimented
history of the object reveaJed through its constellation cannot be separated from
its entanglement with concepts. As a result, an object cannot be known ex~pt
in its context. "Context" here is understood not merely as extemal relatlon
but also as the intemalized characteristics which make an object what is. Toe
"substance" of the object is relational at the core.
Becoming aware of the constellation in which a thing s~ds is tan~ou~t ~o
3
deciphering the constellation which having come to be, 1t beirn w1thin 1t.
A constellation, then, cannot merely be grasped as a conceptual apparatus
imposed upon the object. Constellation should be understood as a metapho~ for
a process of decoding that can never once and for ali come to an end m a
philosophical system. To the degree that a constellation "s~cceeds" with the
object it does so through a process of decipherment. _One dec1J>?ers_rather ~an
"figures out" the object. Toe deciphering of the object mvolves rrumettc capac1ty,
a capacity "for those modes of behavior whicb are receptive, expressive and
communicative in a sensuous fashion. " 32 Mill!Cs!S:,_inother words, is the cap~city
to identify wifh_._insympathy and in appreciation, rather than lp~ ability_to i9entify
as, as i.s Cbaracteristic of instrumental l_ogic. In this sense, knowledge through
conslellation does n~l-~Vilege the subject's purpose over the object's ''right" to
be what it has become. In A~omo, mimesis is connected "Niththe attitude toward
the other he associates wid! _ut~ia. __
Mimesls~l~.ts-~~t be. ~Y- SQ .doing,
.miJnCti~~c~ ro.re&h1l!,l~"~~ -~I~YiQlative relationship to o~er, bey?nd
the heterogeneous and beyond what is one's own, that can only be fulfilled m a
redeemed world.
Adorno' s notion of "identifying with" is not a retum to intuition or immediacy.
1be "emphatic idea" of reason can only be recovered by way of immane~t cri~que
of tbe Concept's own claim to identity. We can only f?"11 ~~llattons 1f we
bave grasped the misrccognition iobereot in identity-logical thinking. We cannot
 24 I Th, Phi/osophyofth, Lmut
immediately see into tbe object; we can only approach it from. different angles of
contextual perspectives, knowing ali the while that it is never truly recognized
by our conceptual apparatus. The oJ,ject_\ll_timAt~!u'ml\Pll!!:_Outside,
unassimilated
~Jts__ e_o_~ -~l.tbought. For Adorno, the re-experiencing of the object as
nonidentical is the experience of misrecognition, in which the subject literally
runs up against the limits of conceptualizationand is opened to the Other as otber,
tbe unassimilated.Because Adorno rejects Hegels move to totality, there is no
context of all contexts. W~ -~--ml! know the object as it is in its
.,contexts, immediatelyoras it is in its true reality.As Adorno explains:
of the object in its constellation is cognition of tbc process storedin
objcct. As a constcUationtheorcticaJ.thougbt cin:Jes tbe concept it would
likc unseal,.hoping tbat it may fly openlike tbe lock of a well-guarded safe
Ji deposit box; m responsenot to a single number but to a combination of
1: numbm."
' coming to terms with the intersubjective constitution of the self in sucb a way as
1, Yet for Adorno, the relativity of the object to context, and tbe rejcction oftbe
conlext of ali contexts, does not lead to skepticism. Tbe "more-than-this" in tbe
nonidentity the real is in the object itself. As a result. such thinking does not
,1 tum tbe "object's indissolubility into a taboo for the subject. ,.,..
The -- of tbe Pbllosophy
1
olConscioumeu
1 universal essential laws are indeedrealizcd-
1
A<k>moholds that skeplicism and relativism iDhere in "tbe pbilosopby of
1 These pbilosopbicalpositions not only ''favor" the subject over
COIISClffllSIICSS."
tbe ob]CCt but also understand the objectas a mere derivative of the subject. AJ
sugges~, reads Hegel as undermining the specular, monological
VIewof lhe subject m wbich the subject - itse1fmirrorcdin the Olh but-
oot seo !he otber "looking'' back. In Hegel, sclf-conaclousncssis constiiuo,d in
and lhrougb otbemcss.SubjectiVityis not subslanlial in and of itsclf instad lhe
su~~ is corrclative and codepeodent. 1be awakening of se1t.dmsci~
anses m aod tbrou81:' entanglcment witb tbc othcr. Thepriority of interrelatiooship
~ubverts the exclusive logic of idcntity; thc odter cannot be excluded from tbe
mtemal_ ! self-coosciousness. The "I" comes to be onJy in the tissue
of ~labons, m the mtetplay of "intemality" and "cxtemality." Toe"!" cam,ol
achicve pert'cct self-cootaimnent, that is, the filllnessof p,eseuce to itsclf. In
otber words, the "r' can no longer be graspcc1 88 a self-romded substance prior
to t~ ~cates. Ooly witbin of constituted cssence does AdomO
believe 1t makessense to privilcge tbe subject's knowledgc of itself oVCI'its
~kdg,, ..of its otben and to let sucb knowlodge - as thc foundatioo fo<
celfainty. Thua, fo<Adomo, tbc "antitbcsis" of tbc lic of thc ,npposcd unity
of subject and object in the "- is oot to be -- 81 811 .-i"1
struclurcof belng. SUclla -R&ndlnll -id ovwlookthcinlpt imo lhe
Ethical Message of NegativeDialectics f 25
interrelatedness of aU tbings that Adorno' s critica! reading of Hegel discloses.
Adorno therefore warns us very carefully against hypostatizing the subject-object
polarity. To do so would be once again to locate b'Uthin the x,sitive, this time
in an undialectical structure in which ali dialcctics take place.
If the dualism of subject and object were laid down as a basic principie it
would, lik.ethe ideotity principie to whicb it refuses to conform, be another
lotal mooism. Absolute duality would be unit."
Hegel opens '!~ the insight that the "su~" ~ajl thing~ be fgynd
in thcirinterieiatedness and, as we have see_!!,AdQrn.Q_~-~~__l!!.~iwt as the
Iasting-COlltributio~!!~_I_'. Logic.far Adorno, that this interrelatedness is
as
experiCDCCO antagonism and not as "communicative freedom" because of the
state of reality in ao aotagonistic socicty. Thus tbe"philosophy of consciousness"
is both true and false: true, as the experience of the isolated subjcct blocked from
to yield a knowledge of the self as other, a knowledge that could assuage fear,
false, as the fum foundation for ao epistemology.
Toe conscioosness assumes a monadological shape, that the individual feels
knowledge of bimself (Von Sich Selbe) is m:n immediate and certain tban
the same knowledge of ali others---this is tbe correct appeanmceof a false
wodd in which men are alien and uncertainto each othel'aod CVttYindividual
immediately relared only to his particularinterests but in wbicb ncvcrtheless
16
Cogitative self-reflection yields a knowkdge of ~H other,_nonidenti~,
which in tum opens the self to the nearly suppressed rnimetlc capac1ty, the abi~ty
to identify with others duough access to tbe other in ooeself. Dallmayr explains
the processof cognitive self-reftection as understoodby Adorno as follows:
Ooly imofar as it is non-ego, can tbe ego relate to tbe oon-ego or alter ego,
and can it performan action, incloding an act ofthougbt. By~ ?r.~te
rellectioo dtoughtterminates its supremacyover oon-thought, SlllCC it is ttself
shof:tbrough from the beginning with otbemess.
37
Tire Sujfering Plrysical
Nonidentity, an idea Adorno derives from Hegel's own the !
constitution of self-consciousness in and tbrougb othemess, gi.ves tbe lie to
Hegers subsequent, absolute identification of object and Concept; at tbe
time, it opens a breathing spacefor tbings which ~ven~ tbem.
completely stifted by an imposed social -1ity. Toe disruption of totality gtves
us a glimpse of what things in their interrelatcdness might bccome tbey were
allowedto rest in lhei.raffinity, ratber Iban forever being stuffedinto a new _system
of idcofification. gmtka@9;oftbe 11.emm_g mcl
JJsinLmnilllk Q8 thatrcrili timt 88~ imposcd. 1bc oppressed thing-
26 / The Philosophy of the Limit
the object itself, the suffering, physical individual-bears witness to the failure
of history to realize itself in the unity of subject and object. The disruption of the
circle of immanence does not allow history the pretense that it is "second nature."
According to-Adorno, Hegel's "natural history" bolsters this pretense:
In the midst of history, Hegel sides with its immutable element with the ever-
same identity of the process whose totality is said to be s~vation. Quite
unmetaphorically he can be charged with mythologizing history. The words
"spirit" and "reconcilement" are used to disguise the myth. 18
Adomo's dial~ic of natural history reminds us that neither history nor nature
can be turned mto a first principie.
If question of the relation of nature and history is to be seriously posed,
~n tt only offers a solution, if it is possible to comprehend historie being in
1ts most extreme historical determinacy, where it is most historical as natura1
being, or if it were possible to comprehend nature as historica1 bei~g where it
seems to rest most deeply in itself as nature. 39
The, inte~winement, ~d yet disjuncture, between history and nature exposes
Hegel s phd?8p~y of history as a myth. Suffering is not merely recognized by
Adorno as_histoncal or natural necessity. Rather suffering, from tbe staricfP9ii
of the. particu)~ w~ich endures it, is senseless. Toe only l!_llsweradequate- to the
s_ulf~g phys1ca1 1s the end_to suffering, not a new version of the "meaning~- of
w~at tt~ann:~detg_(!~ Again, Adomo's disjoining of meaning and being takes
on an ethical.d.1me~s1~: lb.e anti-spiritual side of spirit is the promise ofhappiness
that the desmng 10d1v1dualhas been denied. In this sense Adomo's shift to
materialism carried within it a refusal of the continued deni~l of happiness.
~~lest trace of senseless suffering in the empirica1 world belies a]J the
identltarian phil?5Phy that would talk us out of that suffering: "While there is
a beggar, there is a myth," as Benjamin put it. This is why the philosophy of
identi .... _ .
ty IS uu; mythologtcal fonn of thought. The physica] moment tells our
knowledge that the suffering is not to be, that things should be different. Woe
s~aks, '.'go." Hence the convergence of specific materia1ism with criticism,
wtth social change in practice.40
Toe society "demanded" by the suffering physical is one in which a solidarity
has been achi~ved "that is transparent to itself and ali the living. '"' 1 ''The telos of
such an orgaruzation
. of soctety wou Id be to negate the phys1cal
suffenng of even
the Ie:15t of tts members, and to negate the intemal unreflexive fonns of that
suffenng. '"' 2
Adorno and Schopenbauer:
Tbe Reinterpretatlon ortbe Ethks of Pity
~n put in the ~text of bis dialectic of natural history, the "materialism,"
onndeed the sensuahsm of Adorno' s pbilosopby of redemption, becomes evident.
Ethical Message o/ Negative Dialectics f 27
By getting in touch with the "historicized nature" sedimented in the history of
human suffering, we can potentially recapture the "mimetic" identification with
otherness which has been pushed under in the subject's drive for self-preservation.
Toe dialectic of natural history not only serves to expose the hardening of social
fonnations into a "second nature"; the dialectic also potentially retums us to what
has been "forgotten" within ourselves--our own physicality. Toe reminder that
we, too, are the "suffering physical" marks the feelingofvulnerability that pushes
further the knowledge necessary for controlling the Other; this effort to know the
Other, and thus to control him, is done in the name of self-preservation. The
awareness of our physical vulnerability is ex pres sed in the quest for certainty and
control over the Other, but the destructive "moment" inherent in the striving for
self-preservation at the expense of othemess is made evident in Adorno's exposure
of the basis of the identity logic.
The species "survives" through the domination of the "natural" by instrumental
rationality, but it survives in this manner only by sacrificing "the sensual happi-
ness" for which the suffering physical yearns. The subject's striving for self-
preservation tums against itself by bloc:king the very reconciliation with othemess
that would make bappiness possible. Por Adorno, to consciously experience our
"unhappiness" is to remember the physical moment within ourselves and witb it
the "goal" of our longing, sensual ease.
Conscious unhawiness is nota delusion of the mind's vanity, but something
inherent in the end---the one authentic dignity it has received in its separation
from the body. This dignity is the mind's negative reminder of its physica1
aspect; its capability of that aspect is the only source of whatever hope the mind
can have: 4J
Put somewhat differently, the suffering physical "demands" .i~ .Q.wnredemption ..
in a reconciled world, a wOftd in which sensual ease is not blocked by the
sllt,Ject....,...S
Stnvig~f~~e~gnty. It is preciseIY this inslstence that the experience
Of the s\lffllng physical puts us in toucb with the promise of happiness that
separates Adorno from Schopenhauer. In otber words, 5':l!ope_nhauer'_sphilOS<t
p_hy_ of despair is an _expression of bi_sidentitictI.tiOD_CJ:f _the tru~ of the real _w~~
tbe obj~@cations of the Wil1. A.domo contends that materia1ism-Coi11roverts
ScbopenhauCT'S truth:accoting to the materiaJist, tbe world which includes the
suffering physical cannot be reduced to or identified as the objectifications of tbe
Will represented in the mind. Toe philosophy of redemption can be understood
as Scbopenhauer's philosophy of denial tumed on its head. ForBroo_penbauer. a
redeemed world is ~jll.us.i9.llQ( the desiring Will. For Ado~ 1J!l_s the P!?mi~
that Ctin8s 10-tne-ph}'sicality of the paitcfai. "Thiis, the Sclio(enhaueriin iements
in egatve ..DaleCtfr:S come fu-resr in a constellation wbich negates Scbopen-
hauer's own philosophical conclusions.
In Schopenhauer, "tbe spell of subjectificatioo" inheres in tbe principium
individuationis. 1be endless spewing out of the expressions of the Will in the
 28 / The Plu.losophy of the Limit
Ethical Message of Negative Dialectics / 29

fo~ of p~icular manifestations is utterly beyond our control. Reason Cam!Ql

ch.am th.e Wdl because it is beyond the reach of its principies. The \ViH...._inotber
wo~~s._1~_unfathomable, ~~less~ and free from the dictates of the_fi:!l!:_iple
0Lsuffic1ent re~n. The pnnc,ple of sufficient reason is the universal forniOf
~very phen~~en~n of the Will, not of the Will itself. Toe expression of the Will
m human wilh.ng_,salso subject to the dictates of the principie of sufficient reasoo
~ut n~t the W1ll 1tself. The individual as a phenomenon of the Will is not free,
m sp,te of the illusion of freedom that is created by the human abilty to know
the Will in oneself.
Th ' . 1 f
...
e pnnc1pe o sufficient reason is the universal fonn of evetv
. h' .,
phenomenon
. man m is action, like every other phenomenon, must be subordinated to
ll. But bec~u~ in self-consciousness the Will is known directly and in itself,
~ere also hes ID this consciousnessthe eonsciousness of freedom. But the fact
~soverlooked that tbe individual, the person, is not Will as thing-in-itself, but
is the phenomenon of the Will, as such detennined and has entered the fonn
of the phenomenon, the principie of sufficient reason.44
Hum_anfreedom, then, is not to be found in the human capacity to act according
to the dictates of ~n nor in the effort to control the Will. Human beings cannot
~scape the necess1ty that is expressed in willng but thev can deny the wll to
hve that inh ' "
-- eres.in I 00 lVldual phenomenon. Denial for Schopenhauer
endless sufferings of ali these lives as his own and taken upon himself the pain
of the whole world. No suffering is any longer strange or foreign to h.im. Ali
the miseries of others, which he sees and is so seldom able to alleviate, ali the
miseries of which he has indirect knowledge, and even those he recognizes
merely as possible, affect his mind just as do his own. lt is no longer the
changing weal and woe of his person, that he has in view, as is the case
with the man still involved in egoism, but as he sees through the principium
individuationis, everything lies equally near to him. He knows the whole,
comprehends its inner nature and finds it involved in a constan!passing away,
a vain striving, an inward conflict, anda continual suffering.06
Schopenhauer offers us an ethic of pity based on the identification of the "truth"
of the human condition. His is the wisdom of disillusionment. Toe loss of
innocence is the price we pay for the knowledge that can open us to the only true
human freedom---denial of the Will. To know the world as Will and representation
is_~_live beyond hope. The yearning for utopia is false consciousness, and one
heaVily ~or the mistake of hope. Hope enchains the utopian individual to
the world- he would deny. As Adorno ex:plains: "Por Schopenhauer any hope for
the establishment of humanity was toofond delusion of a man who had nothing
but misfortune to hope for. ,,4 7
Adorno, on the other hand, considers the renunciation of hope to be an error
is the only of identity-logical thinking. In this sense, "despair is the last ideology."

/~:
~:freedom Th" de a1 . '
. ts m , of course, changes nothmg; one still goes on as one must.
c~ge one's fate _isto_lve it o~t more completely. Our bun:i@i!Y, O!,I!'
" q . ~pac1_ty _forreason, is ev1denced m stoic denial. In this sense the striving
' --
The mistake in Schopenhauer's thinking is that the law wh.ichkeepsimmanence
under its own spell is directly said to be that essence which immanenceblocks,
1y
s.elf.is_what is_m~uman.~ By seeing individualism as fonI100 ;--~e--can de0y the essence that would not be conceivable as other than transcendent. But the
~e egmsm_wh1ch is expressed in our mulish efforts at self-preservation. Reason world is better than hell because-tbe.~_lute conclusivenesswbich Schopen-
,~ ~-1;hC:
1
v~d ()~_M.<!ya and opens our eyes to the "truth" of individualism. Or hauer attributes to the world's course is brurowed in tum from the idealistic
~, mdivtdualty is epiphenome:00.:f,._lftl? e~nr,,ssion of ~i..eWiiL pS,~-;;--pen- sjiie~- _Itis apure it;lentity_princ_iple
and w;deceptiveas apy idenlityprincipie.
hauer to th" ,...._.,_ - - -- --'R __--- The wotld's course is not absolute conclusive nor is absolute despair; rather
_! grasp is truth is to be "humiliated." But the wound to Our narcissism
despair is its condusiveness. However void every trace of otherness in it,
, opens us to the only true. "f;ounda: uon " o morahty---compassion
for the suffenng
however much ali happiness is marred by revocability:in the breaks that belie
of others. qnc~ ~ed of Maya is lfted, the ~dividual comes to unrlerstand identity, entity is still pervaded by the ever-brokenpledgesof that othemess.
that the sharp d1stmctmn betw and . ~------
. . . . . . een ego other is an llusion. By penetrating tbe
1
prin:ipium_ ~lVlduationis, we leam to identify with the other. We come to see Toe materialist honors the pledge to othemess which idealism renounces.
rthe trueafis1gruficance" of our own pe tty strivmg, - . . . .
1ts ulllmate ins1gnificance. What Adorno prefers ''to read transcendence longingly rather than strike out.- The
mge~ ter the denial of the Will is both the composure of one who knows and longing of the suffering physical is to be protected as a sign of what might be,
the pity of one who experiences the suffering of others as a shared human fate. what I would call the utopa of sensual ease. Toe confusion of the utopia of
H that veil of May, L- ._,,. , . . sensual ease, in which things are allowed to rest in affinity with death is itself
man u"- prmc1p1um bw.1viduat1oms, 1s lifted from the eyes of
him~;;: ;;xtent that he no longer makesthe egoti~ticaldistinction between
of other in . . person ~f others, but takes as much mterest in the sufferings
due to tbe spell of subjectification in wbich othemess can only appear as the
subject's mirror opposite--in this case obliteration. This confusion, for Adorno,
. the . dmduals as h1sowo, and thus is not only benevolent and cbaritable was the centra) error in Wagner's sensualist recasting of Schopenhauer's insight.
ID highestdegree, but even ready to sacrifice his owo individua1itywhenever Schopenhauer even denies the status of othemess to obliteration, whereas Wagner
severa1_ can be saved thereby, then it follows automatically, that such a tbinks tbat oblitera.tion is othemess. Toe hell of our mortal life lingers on in our
recogmnon m ali beings, his true and innermost self, must aiso regard the deatb. Ths Schopenhauerian denial of tbe physical is echoed in Wagner in spite

 Ethical Message of Negative Dialectics I 31
30 I The Philosophy of the Limit

Instead of sanctioning tbe internalized and hardened authori1)'.of the su~re.go,

of himself. For Adorno, the spell of subjectification creates a false either/or: either theory should carry out the dialectics of individual and spec1es. ~e ngonsm
the subject's endless, impotent striving or its longing for complete annihilation so of the superego is nothing but the reflex res~se to the pre.vent1onof that
as to be beyond this striving. dialectics by the antagonistic condition. The subJect would be hberated only as
an l reconciled with the non-1 and thus it w?ul~ atso be above the freedom
As long as the world is as it is, ali pictures of reconciliation, peace and quiet 1
which is leagued with its counterpart repress1on.
resemble the picture of death. The slightest difference between nothingness and
coming to rest would be the baven of hope, the no man's Jand between For Adorno, the paradox in Kant's definition of freedo.m as the constitution of
the borderposts of being and nothingness. Rather than overcome that zone, causality by pure reason is that one is only free if one acts as one must as a
consciousness wou]d bave to extricate from it what is not in tbe power of the + . .9~Y~--ti:i~}.l!.~
rational being. One is f~. C!~..Y_!!,Q_ll_e die~~ br one's status as
altemative.50 a rational nOUI)]CJ!~LWi.Adorno finds it no comc1~ence that ali the concepts
In a world in which the subject "survives" only through a frantic appropriation whel"Cb.. ilie"ritique of Practica! Reason pro~ses 10 honor o~ freedorn, to ~11
y between the Imperative and Mankind are repress1ve. A causahty
of otherness, sensual ease is recast as a death wish, as in Wagner's rendition of th C C hasffi . obed' nSJ
Schopenhauer. produced by freedom corrupts freedom mto 1ence. .
The power of the altematives between death and utopia Hes in the individuality ' The repressive aspect of Kantian morality stems, in part, from the .rad1c~l
... of reason and nature and can be overcorne only through the dialecuc
"signaled" in the noncaptured physical. Thus for Schopenhauer, the humiliated separauon f lf ot denied
subject who relinquishes individualism must also relinquish desire for the end of of natural history in which the natural moment o reason 1tse IS n
suffering~ whereas, for Adorno, the very suffering of the noncaptured physical 1be hislory ofreason, that it is a moment of nature and yet something e~se,
gestores toward the coming into being of a multi-dimensional, desiring being. .___ the immanent definition of reason. lt is naturalas the psycholog1cal
= meoff for "''"""""s of self-preservat1on;
n once sp11toff and contrasted
.
Toe subject, in its physicality, is something more than its categorization as subject orce sp I t'_t'___ th t dialectic irrepress1bly
over the object. To be in touch with this something more, one must reach out to 'withnatureitalsobecomesnature'sotbemess. ut~ a 8 . .
the other in oneself that has been denied. To grasp the subject as constituted tums reason into the absolute antithesis of nature, .'f tbe .nature in .reason 1tself
11be If-nno""'rvationrunmng wlid and wdl regress to
under the weight of a subjectivity that preserves itself at the expense of tbe 1sforgotten, reason Wt se t'- would be
nature. It is only as reftection upon that self-preservat1onthat reason
suffering, longing, physical human being is to grasp the "truth" of Schopenhauer's
vision of freedom through humiliation. In this sense, "the subject's dissolution above nature."'
presents at the same time the ephemeral and condemned picture of a possible u] of ph al desire are part of the rational Will itself. Toe Will
subject.'~ 1 To understand oneself as a "natural" subject is to retrieve in oneself
Toe unp ses ystc
must be understocxl dialectically in de
its relation to the very sues tt um es
fi and

a kind of innocence; denial is denicd. 1be wisdom of disillusionment is exposed expresses.

!lSthe self-destructive impulse of idealislll.":tlie melanctiOiysCleneis not eof A WUI witbout physical impu1ses,impulses that swvive, weak.~ed in imagina-
defeat:00 be melanchofy is to experence deprivation as loss. This is itself a form . uld not be a Will. At tbe same time, however, the Will settles down
of resistance in a world in whicb deprivation is justified as necessary. According :1bt:~ntra1izing unit of impulses as the authority that ~s them
to Adorno, to deny the desire of the natural Will is to subject oncself to the rule potentially negates them. This necessitates a dialec~cal defi:1-bonof the Wtll.
of the super-ego-a subjugation which is in league with the Kantian definitioo lt is the f~'-~ enables ~~-ousne!.s W191,.ve s domam.and_so_cha_n_ge
of freedom. The association of freedom in Kant with tbe postulation of a radicallY ~~,L~:,c:is~;. iij:~il. is _i;e_si~~ce.
autonomous andcompletely unified ego contaminates freedom through its incor -~~. .. . al of the wm there can be no absolute divide
poration of aggression against the hapless, desiring self. Under a dtalect.tc concep on
between tbe noumenal and the empirical subJect, any
.' th
than ere can I re:
be

Tbe Critique of the Kantlan

transcendental gap between reason and desire. A ~rson is never a com::in
1y tional Will. Yet the independence of Will understood as th~ s g
Subject of Morality um as ra . H! one hears the echo of N1etz.scbe.
for tbe unity of tbe ego is also not demed. ~- _j.; -~ "f-become what
A self is not a .ven it is a goal, an 31?.!m~I!f ~,ievement o I the
Adorno maintains that freedom cannot be obtained from tbe heteronomous but ;
~-',- ~~m;nsliet,81Kfethat is never completed as ong as
only tbrough it. Toe superego represen.ts, in reied form, the subject' s constituti.OD
desiring self continues to live. gbl ...,...fied "thout losing itself as
in andthrougbothers. To be freefrom the superego is to renderthis intersubjectiV As a result, tbe Will cannot be thorou Y 00r-~ wt
ity transparent to itself as a dialectical relation:
a
32 I The Philosophy of the Limit Ethical Message of Negative Dialectics I 33

Will. Por the Will to be the Will it must retain the subjective moment that makes _ "d 1. 1.mposed social form, turns against the aspiration to be
it irreducible to any categorical ex:pression. As Adorno remarks: "We can as well Indiv1 ua 1sm, as an
free . th full material sense precisely because rea 1ze
r d freedom demands a
talk of a Will that is independent and to that extent objective as we can talk of "tran~;areent soJdarity" which individualism blocks. This view, of co~:~:.h~~ld
a strong ego or in the latter days of old character. "S6 Kant's mistake was to make not be taken to mean that Adorno rejects the ~sociation of freedom Wl m ivt u-
the noumenal subject into a tota1ity. Only by so doing could he achieve the radical ality altogether. Toe relationship, however, IS complex.
independence of the noumenal self. Adorno understands this move on Kant's part
to be progressive as well as regressive: . . . free insofar as he has opposed hiDllielfto society and can
'!:e :;:::i~:~:ugh incomparably Jess than he believes---ag~nst:.ociety
According to Kantian ethics the subject's totality predominates over the mo-
ments it Iives by-moments which alone give life to the totality, although
and other individuals. His freedom is primarily :to~
ends ends that are not totally exhauste<fby soc en 8 15
f~:;
7~1;;~:; h
outside such a totality they would not make up a Will. The discovery was '.des with the principies of individuation. A freedom of th1s ty~ bas
progressive ... the subject becomes moral for itself; it cannot be weighed by ~01;c1 loose from punitive society; within an increasingly rational one, Jt
ro. en f reart At the same time in the midst of bourgeo1s
standards that are inwardly and outwardly particular and alien to the subject. achieved a measure o I Y . . . lf 59
Once the rational unity of the Will is established as the sole moral authority, . "----'
soc1ety 11,;;,;uomre..._ 00 less de\usive than md1v1dua1ty 1tse
.,.,,.;ns
the subject is protected from the violence done to it by a hierarchical society-
. inherent
Toe deluston . . th"ts ki nd of freedom is that it masks the necessity it
m
a society whicb (as still in Dante's sense) wouldjudge a man's deeds without
any previous acceptance of its law by bis consciousness. 57 imposes.
. . 1 ed . the kind offreedom praised by radica] individual-
There is a truth in "free Will" that Adorno does not want to den y. But o_!l~ The real necess1~ mvo v m hi h the free had to maintain and to enforce with
transcendental divide between nature and reason is deconstructed, the __ n9tiqQ___of ism ideology-m a freedoi:" w e . desi..........!
to cover up the social
their elbows--this necess1ty was an 1mage 6"""' .
f~~-taJc~i ~n __ ..~~i_ni ..Wtiat Adorno-reJecis s_theinescapable .. d ual to be rugged if he wants to surv1ve.
necessity that compels an .md !VI
60

alternative inherent in the Kantian.pfuject: either the Will is free or it's unfree.
According to Adorno, it is both:
Adomoultimatelyendorsesthev~ew. 0 1.mr d al freedom put forward in Hegel' s
~ alivi urall. al Will is not free of the
1 ., M'nd Toe mdmdu as on
Each drastic thesis is false. In their innennost core, the theses of freedom and Phenomeno ogy OJ l f freedom only against it and in
he . (s)he comes to the concept o the
determinism coincide. Both proclaim identity. The reduction to pure spontane-
ity applies to the empirical subject the very same law which as an expanded
casual category becomes detenninism. Perilaps free menwould be freed from
teronomous, . .
1
7beh lden to one another and to
struggle with it. As matenal bemgsd we freed:m is entwined with the experi-
outside world more gene~ly. Toe .nd~ l freedom is a moment, a historical
the Will also; surely it is onJy in a free society that individuals would be free. 51 ence of unfreedom. In this sense, l iv1 ua
mode, which resists what would deny it.
r Adorno sees as Hegel' s great insight the understanding that concrete freedom
is objective, not simply a state of the Will. Marx adds to this view the insistence Freedom Rethought
that "objective" freedom always rests on the satisfaction of material needs. . . , menolo , it is only from that which has been
Freedom for the empirical subject cannot be had without the gratification of need. As perce1ved m Hegel s Pheno. . gy. .t that the subject acquires the
. "ded from -1 from that which is agams1 1 , .
;Th.e very materiality of human existence demands a socialJy realized freedom in div1 1 ,
concepts of freedom and un freedom which it will then relate to its own
which want, in its extreme forms, has been eliminated. As already suggested, structure.
61

such a freedom can only be achieved intersubjectively because the "independent"

self can only defeat its longing by alienating itself from the world, rather than by
. . " bec in the Hegelian sense, it is freedom
F~om_cannot be :~~-~J~ve ause.. onl bemtlized sotatty:-n-ut the
malcing the world a home. Satisfaction demands mutuality and adjustment. 1be t Tlienuilertai-moment of freedom can ,, y_ --,,.lh freed
ag~. _ -~ _ .. of freedom does not mean at om
atomic individual cannot lay hold of a world that yields to the need to oegate invitab1e social aspecto~ the condttion~l . . defines freedom to be. Adorno's
suffering. However, freedom, in the fonn of the postulation of the radical auton- can be simply identified wtth what the.: ecttvi~ve notion of freedom, in which
omy of the rational Will, even if philosophically false, expresses a truth of social 1
critique of Marx is that .~ ~ Jl0,~ d ~!;ommunity" would collapse. Rec-
experience. W e feel isolated from one anotber; our interdependence occurs bebind the tension between the md~vidual. an be . tained but not reified. A self-
our baclcs. Reified as social order and internalized as the superego, intersubjectiv 1'- onciliation demands that tlus tensmn ;;::Jlter fl~idity in relations between
ity is frozen into a context whicb detennines us and appears beyond our controJ. transparent solidarity would allow for mue ~-

34 I The Philosophy of the Limit
subjects, but it would not totally end the experience of the divide between the
intemal and external.
In a state of freedom the individual would not be frantically guarding the old
particularity-individuality is the produce of pressure as well as the energy
center for resistance to this pressure--but neither would that state of freedom
agree with the present concept of collectivity. The fact that collectivism is
directly commanded in the countries which today monopolize the name of
socialism, commanded as the individual's subordination to society, this fact
belies the sociaJismof tbose countries, and solidifies antagonism.62
Toe recovery of "the natuntl" irJreason itself rejects the idea of_~9m _~_!;he
__Th~~-i~P.--~IIJ.
notioD-f"radic_aljil!_fonQDl)'...QLSQY~~-ignt)'.,. e~~-~J!L@d
through ~rness, andJhere isno..fi.d901 ~ithout an end to ma~Ii..1 deprivation.
Adorno rejects completely tbe Schopenha;rian- ;ieW--of -;;-~m" as denial.
,;,. Where Adorno agices with Schopenhauer, however, is in bis stress on sympathy
for the other as the basis for moral intuition. Yet Adorno holds that it is compassion
rather than pity which is the basis for sympathy for others. Pity reflects the
helplessness inberent in Schopenhauer' s idealism. The fate of the desiring individ-
ual is indeed pitiful in Schopenhauer. Compassion, for Adorno, is not rooted in
the wisdom of disillusionment but in the recognition of tbe shared human plight
which comes from the subject's reftection on bis .. natural side." The "mindfulness
of nature," our grasp of our existence as the suffering physical allows us to be
saft. Goodness, for Adorno, is a form of tendemess. To the degree that tbe
Kantian "kingdom of ends" imagines something like a reconciled condition
between human beings, it retains a utopian content. But the Adornian emphasis
on the recovery of compassion, through the subject's reftection on her or bis own
othemess, breaks with the framework of de-ontological ethics.
In other words, Adorno wishes to preserve good will without repression or,
more rad.ically, to suggest that repression blocks good will. Adomo's moral
subject that does not know itself as a ''natural" desiring being will not recover
tbe sympathy for others that can serve as a nonrepressive "basis" for moral
intuition. Adorno's point, put starkly, is tbat an ethics~parated_categOQcally
fi;Qm_wbatb,Q$been.called.tbe ~" will ~S{live.
''Toe mindfulness of nature" opens sub.)CClSto oth~s
1. their own nonidentity and, by so doing, allows us to appreciate ourselves and
----
in the recognition of
-Y i others as multidimensional beings. This openness to otbemess is demonstrated
in Adorno as a non-violative relation to the concrete wbicb does not seek to
appropriate or to remain indifferent. 1be "love" for otberness is blocked by a
subject which can only see tbe Other as its own image or as its mirror- opposite.
Adomo's deconstruction, and yet incorporation, of Scbopenhauer's ethic of pity
in the dialectic of natural history helps us to think again about Herbert Marcuse' s
belief tbat the only fouodation for our moral beliefs is tbe compassioo for the
suffering of others. Toe caUto love things "botb eamest and ironic" is oot a call
Ethical Message of Negative Dialectics / 35
to focos merely on nature as an abstraction nor on things in their concrete
individuality at the expense of relations between human beings. Such a shift in '
perspective is, if you like, the underpinning of a differen_tunrepressed interrelat- i:
~~i:,s. To argue that there _issomethi_ng"the~" _th_at bl!S.~_!l_re~~-sed..w.e.need
rely on Freud's. theoryof ..tbedri\'CS .or.on_&9meother notion of an ~s_sent_ial
not __
'i'
1 :-
:
iiin3!t_natu~.- ..W~_!!l!!~~jmply_~ ~t;:__unttth of idealism~ tbe identification of
tl_iere_!l!_yli~ its__
con~pt-_ 1
Negative Dialectics in lts Relation to
!
1
Contemporary 'Irends in Pbilosophy
Following through Adomo's own insight into nonidentity allows us to reject
Adorno's tendency to make negativity absolute. His emphasis, however, contin-
ues to provide us with an important reminder. For Adorno, what appears sensible
is often tbat which has been imposed on us. Common se.QKt.eas.ily degenerates
into the wisdofil..Q.IationalizatioJL The signifiC81lce-
~f Adorno's warning against
theoom:placent acceptan~-e-~f-common sense can best be brought out through a
63
comparison with both Hans George Gadamer's appeal to tradition and Richard
Rorty's appeal to solidarity 64 as meaos by which we come to make sense of our
ethical and political environment. Although they come to Hegel from very differ-
ent beginnings, I understani! botb_g_~i:_~Q __E,QrtytQ_be..p@g~~~ H~j~lians.
While it would beswiaii' to Gadamer to suggest that bis appeal to tradition
does not allow for critique-the adherence to a tradition is a self-conscious
appropriation of tradition, and such a self-conscious appropriation implies cri-
tique--there is nonetheless a quietism in bis philosophy. Rarely does Gadamer
reftect on who are the "we" who share a tradition. Rorty, likewise, appeals to
"social practice" and "our shared conversation"; in a similar manner, he fails to
comefully to tenns with the ethical critique of ''the conversation of mankind."
In Hegelian terms, both Rorty and Gadam:~Jail.1.ref.9~--~.~~~!lc.C in
i~. AdOniO'S-negati~~dTaiCCtcSreinds us again and again of the relations
of domination and exclusion which are impli~ated.in an ~~stract appeal .to the
"we" who share. Toe emphasis on the contmuation of tbe conversat&on of
mankind" in the present is similarly undennined. An ethic which fails to incorpo-
rate the role not only of critique but also of the full di_sruptive ~':er o~ the
I
imagination6!1 "condemns us to an unending commerce wtth the familiar obJects
of thought. ,'66 Adomo's negative dialectics disrupts this unending commerce at
every tum. For Adorno, to gain insigbt_i_n,to. what.is-we-must -know.it.t\S__
otber.
To know itas- other is to know it in the light of a redeemed world.
Perspectives rnust be fashioned that displace and estnmge ~d, revea! it
to be wilh its rigbts and crevices, as indigent and distorted tt will one
day in the messianic light. To gain such perspectives without vu1ganty or

36 I The Philosophy of the limit
violence entirely from ffeeting contact with its objects-this is the task of
thought.67
Adomo's emphasis on the unheimlich need not be read as the denial of ethicaJ
mediation. Instead, Adorno should be understood as reminding us that we will
not reaJly find "our dwelling" in the world until we stop trying desperately to
make a home out of our world by means of identity-logical thinking.
In fear, bondage to nature is perpetuated by a thinking that identifies, that
equalizes everything unequa1.Thoughtless rationality is blinded to the point of
madness by the sight of whatsoever will elude its rule .... Even the theory
of a1ienation, the fennent of dia1ectics, confuses the need to approach the
heteronomous and thus irrationa1world to be "at home everywhere" as Novalis
put it-with the archaic barbarism that the loving subject cannot love what is
alien and different, with the craving for incorporation and persecution. If the
alien were no longer ostracized there hardly would be any more a1ienation. 68
Adomo's _melancholy s~ie~~e ~.!':1-!_~d_s
__ _<:1:f..t!i~
1;1~ __'!'!olenceof ioteifil!~tivity.
He forces us to confront the content of the solidarity to which we appeal----:-AnO,
of course, Adorno continual)y questions whether or not there can be a truly "self-
transparent" solidarity within the frame of mass society. Adomo's suspicion, and
indeed fear, of intersubjectivity when taken to its extremes can be understood as
an expression of the very hostility to the alien he wams us against. Yet bis
suspicion does not result because he has no view of intersubjectivity, but rather
because he adopts the strong Hegelian vision of self-consciousness_as a social,
hS mfel'Statidirig
interactiv~-~chieVement. lt is "i'1'CCisl)' oftlte in;;;Ubjectve
constitutioil of self-cOOSCiousness which leads him to question whether tbe condi-
tions of mass society do not completely undermine the social conditions in wbich
critical subjectivity can survive. Thus, Adorno emphasizes the vantage point of
the exile for its value in preserving the remnants of critique. Who are the "we"
who hear Adorno and why now? How does he speakto us? Why engage in tbe
task of recovering "sorne freedom for history" within Adorno's own categories7
What does it mean to take responsibility for Adomo's signature?
Condusion
I begin my conclusion to this first chapter with an answer to my Iast question.
In ''taking responsibility for the signature of the other ," we are tested in our own
ability to exercise our openness to and tenderness toward othemess. To take
responsibility for tbe signature of the other without violation demands tbat one
seek to intemaliz.e tbe attitude toward othemess whicb shines through tbe cracks
and tbe crevices of Negative Dialectics. lt demandsthat we reflect on tbe etbical
relation in general, the very relation to wbicb Adorno directs our attention. Wbat
is at stake in such a project is less the following of rules than the open-mincled
'
1
Ethical Message of Negative Dialectics I 37
spirit in which it is accomplished. In part, Adorno speaks to us now because his
! '
implicit ethical vision rests on expansiveness rather than on constriction. His is
! li
a gentle, directive message which does not demand the universaJization of one
particular behavioral mode of morality. The focus is less on doing what is right
''u
'
in accordam;e with one 's duty than on the development of an attitude of tendemess '1
toward othemess and gentleness toward oneself as a sensuaJ creature. The dialec-
tical richness of Adomo's d"constructive Hegelianism allows us to overcome the
rigid divide between the serious business of ethics and the playfulness of the
aesthetic realm. Adorno re fu ses the Kantian categorical divide between the ethical
and the aesthetic. Yet if Adoriio fSto be rightly accused of "aestheticizing" the
thicaJ, it is only in Charles Peirce's unique sense of aesthetics. Fo_rPeirce, the
.ethical is subordinate to the aesthetic. For Peirce, "esthetics is the science of
"Tlds,amf thihUSiess- of the esthetician is to say what is the state of things
.which is most admirable in itself regardless of any ulterior reason.',69 Adomo's
pessimism about the effect of a "faJlen world" on positive visions of the ultimate
good led him to proceed by indication rather than by direct philosophical elabora-
tion. In Adorno, the ultimate Good can only be krwwn negatively. But without
redemptive perspectives which, at the very least, indicate the ultimate good of
communicative freedom, we would be unable to even glimpse the different way
of belongin.g together which inheres in Adomo's critique of totality. Toe ultimate
good, then, is present in Adorno in its negative force and as the force of the
negative. Toe ultimate question whether Adomo's own formulation ofhis project
degenerates into endless negativity depends, in part, on how seriously we take
bis attempt to develop constellations as a counter to determinate negation and,
ultimately, on what we make of bis critique of Hegel's move to totality. As I have
suggested, Adorno took seriously the redefinition of "communicative freedom" as
an essential aspect of a redemptive perspective. But the following question
remains: is the renderin_g .<?f. ~':!nicative freedom _in__
te1:J!1Sof a rajemp~ve
~rspectiye.._@ioPriai"e eW1gb, al'.rmistWe,_lke-H~idegge_r, attempt ! think of
"~!~ng_ing_togetber" ..differe.1:t!lY-m'...like..Fe~ ....
~lc_,R yi_si.@ _gf ''eYol11tionary
love"? In other words, the question to Adorno remains as follows: Can we
appro.ach "diversity in unity" without thinking belonging together differently, or
must we aJways fall back on an appeal to the whole, whether we cal) it Creativity or
CheWill? In spite of the perplexities which persist even afterthe most sympathetic
reading of Negative Dialectics, Adorno remains a crucial voice for those of us
who seek to aspire to the ethical relationship.
To see why Adomo's voice remains relevant, even if we needultimately to
surpass its limits through a more explicit, affirmative configurati~n o~ justice and
its significance for lega] interpretation, we will now retum to bis cnbque of the
ideal of community. We will lay bis critique alongside that offered by Jacques
Derrida. We do so to indicate why, in spite of their suspicion of the reduction of
the ethical relation to bow it is defined by current conventional standards, they
do not simplistically deny the ideal of community. And we will do so in arder to
 .'
38 I The Philosophy of the Limit

begin the process of contrasting Adorno with the thinkers who have come to be 1 '

I1 f:"
labeled
. "post modcm: " As we ~1l see m
the forthcoming chapters, for Derrida, 1 ;;

unlike .Adorno, the.ngh: ofph~losophy ultimately has important implications for

the phi'.sop_hyof nght irreduc1bleto a negative dialectics which can not directly 2 '
~dress JUst1~e,.Iet .~one questio~s of legal interpretation. But first, we must turn ;
the s1milant1esand the differences in their philosophical relationship to 1
the ideal of community. Toe "Postmodem" Challenge
to the Ideal of Community

lntroduction

In the twentieth century, a number of thiokers have becomedeeply skeptical

of any appeal to the ideal of community. For example, Iris Young has argued
that the very idea of community as a unit of ethical being in Hegel 's sense must
1
be rejected as philosopbically wrong and nonnatively suspect. Adorno is c1early
one of the tbinkers wbo have infonned Young's position. As Young explains:
I criticize the notion of communityon bothphilosophicalandpracticalgrounds.
I argue that the ideal of community participates in what Derridacalls the
metaphysics of presenceor Adorno calls the logic of identity, a metaphysics
that denlesdifference. The ideal of community presumes subjects who are
present to themselves and presumes subjects can uoderstand [on] another as
they understand themselves. lt thus denies the differencebetween subjects. 1be
desire for community relies on the same desire for social wholeness[an]
identification that underliesracism and ethnic chauvinism, on the one hand,
2
and political sectarlanism on the other.

In place of the ideal of the community, Young puts forward a vision of a

nonrepressive city, which emphasizes difference. This skepticism, as we saw at
the end of the last chapter, andas Young also points out, is based on the deep
SUspicionthat lurking bebind the ideal of community is a nostalgia for an inte-
grated"organic wholeness" that inevitably excludes those who do not seem to fit
into the community.
Philosophically andpolitically, twentieth-a:ntury experience has presumably
taught us that the appeal to community ineluctably slides intoan appeal to totality,
closure, and exclusion. In bis continuing influence on writers like Young, Adorno
is one of the most significant initiators of this critique. Adorno, however, has
oow been joined, as we see in Young's quotation, with tbe "postmoderns."
Iacques Derrida, for example, is also particulady incisive and illuminating on
the multifarious ways in which community and convention can do violence to

39
 40 I The Philosophy of the Limit "Postmodern" Challenge to Ideal of Community I 41

difference and particularity. (Although developed in different modulations, this the self-presence of a rigidly bounded Sittlichk.eit. The gi:ap~icex~mple of the
line of criticism, as I suggested in the lntroduction, bears a family resemblance constituted outside is death itself. To elaborate on Demda s remm~er ~f the
to standard liberal skepticism of strong communitarian aspirations.) violent moment in ethical life, l discuss the role of war in the consolldatmn of
Yet in spite of what seems at first to be a shared suspicion, 1 want to show that the Hegelian community .4 To end, orto begin again, 1 speculate on the dream of
a more careful reading of Adorno and Derrida reveals that they do not totally communicative freedom.
reject the aspiration to the ideal of community. Indeed, the space that they keep
open for difference and particularity would itself not make any sense unless we
are sensitive to the seriousness with which they take the ideal of community. But Hegel's Critique of the Philosophy of
befare returning to this reading, we have to ask a further question that follows Reflection: Law, Community, and Ethics
from Adorno's own critique of Hegel. If Hegel's "system" is rejected for once
again re-inscribing the logic of identity, how does one approach the "ideal" of In his critique of natural Jaw,5 Hegel argues that an '"ideali~" state of nature,
communicative freedom-which for Hegel had been realized at least on the leve! in which multiple, atomized individuals exist indepe~de?tly, is o~Jy ~yth ~hat
of the concept-in the modero state. 1 With the disruption of Hegel's system, at confuses an empirical observation of the relations of md1fferenc~m c1v1!so:c1ety
least as conventionally understood, we can no longer assume the actualization of with a purport.edly natural condition used to justify_these_~l~t10nsof ,.nd1ffer-
communicative freedom in communal life. The ideal, in other words, can not be ence.6 Law, or indeed any ethical arder, is, in the v1~wc~hc1zed, that 1s, ~ant
assumed to have been realized in the real, now understood as the conventions of and Fichte's, aliento the individual human being. Soc1ety1son!y accept~ as the
social life of a particular community. such a saete ty does not umfy the d1spersed
lesser evil to total destruct10n. .
Thus, 1 separate my discussion of Derrida and Adorno's critique of social individuals. Ethical ordering remains a negative f~e ":hich cannot.reahze free-
"order," either as Sittlichkeit oras a Rousseauian communal ideal, from their dom concretely through its embodiment in social inshtutions. Accordmg to Hege_l,
speculations on the problem of metaphysics and the chance of communicative his predecessors in critica} idealism, Kant and Fichte, could not overc~me certam
freedom. This distinction between the perpetuation of arder, and the dream of dilemmas in emprica! natural law even though they purportedly reJ~ted such
preserving oruncovering the truly ethical relationship as one of uncoerced affinity, theories For Hegel Kant's dilemma inheres in his absolute separ~t10?o~ the
becomes extremely important for Derrida, in his engagement with the work of realm of necess1ty
. from
' the realm o f freedom Legality and the mst1tut10nal
Emmanuel Levinas. 1 will argue that Derrida does not simply reject the historica1 embodiments of ethical ordering more generally' is relegated t_othe hete7no-
reality of community life, nor does he merely privilege the moment of "transgres- mous the realm of necessity. Freedom of the moral will in ~ant is freedom rom
sion" when the boundaries yield. He warns us against both the violence of identity ' . As a result free dom canon IY be 1'ormally
necess1ty. '
conce1ved.
.
that presents the community as a self-contained unit of being and the relegation As Gillian Rose explains Hegel's critique of Kant and F1chte:
of the other to a phenomenological relation of asymmetry in which the dance of
sameness and difference is denied. lt should not be forgotten that the gen~~ Transcendentalor critica! philosophycannot ~~~c~:~;~/:oej;:;~::i:!
strategy of deconstruction is to disrupt the violent hierarchies of binary op~si- freedombut only of theform of freedombecauseit mu. . . t Kanfs
t!Q9_s.Derrida is one of our sharpest critics of both sides of the myth-of self- of the kind of judgementsmade by a reasonwhich~ divi~ 10 ~:I desire
notion ofmora1autonomyis fonnal, not onlybecause1texcu s 03 .
containment. Both Adorno and Derrida clearly guard against the violence of self- 1
and inclinationfrom freedom,butbecauseit classifi~sleg~1tyf.the s::r ::~
enclosed community. But is their message, then, that we must remain ever with the heteronomoushindrancesto the fonnat1ono a ree . . h"
vigilant against the violence of the ideal of community? 1 suggest that the answer ar ancllegality but he argues,m is
endorsesKant's distinctionbetweenID?r ity . al h: 5 is conceivable
to this question is complex indeed. doctrineofnaturallaw thatacommun1tyoffree.ra~on 0
g -
My argument proceeds as follows: First, 1 discuss the early Hegel's critique of ' ill H Fichte's natura 11aw 1s a1so
without any reference to the good w ence
the elevation of civil society to absolute ethical life as this critique relates to abstract and fonnal.7
Hegel's understanding of community, das Gemeine. Second, l retum to how
. al' t overcome the dichotomous divi-
Adomo's negative dialectics, now played out against one understanding of com- According to Hegel, Kant1an mor ity canno iy Thus it can only
munitarianism, and Derrida's writing (trace, diffrance, supplement) disrupt I
sion between the reamo f f ree dOm and the realm o.d1 necess1 ,
al lbis formal unity is not
Hegel's move to enclose the community. This disruption, which proceeds througb provide us with a formal unity of the real and the I e . . f th "real " or the
a_recognition of _the inevitability of a constructive outside, extemal to an all- a true unity at ali for Hegel but rather is the suppression e '
encompassing spirit, nidiCaliy undermines the right-wing Hegelians' appeal to multiplicity.
......
42 I The Philosophy of the Limit
"Postmodern" Challenge lo Ideal o/Community ! 43
Thus, in what is ca1led practi al
Ideal of the identity of thereal ane re:1500,we can recognize only the forma/
property carries within ita contradiction. The right to possession is only guaran-
this Idea should he the absolut the ;~ea!, and in these systems of philosophy
posited outside reason and pe ~ :
1 0
mdiffere_nce. This real is essentially teed by the community. Yet the right is also a guarantee against community
it. The essence of this 'nracticralcttc re~son resides only in its difference from infringement. Without the guarantee of right, possession would be only posses-
. r a reason Is understood as a 1 sion, and not property. The very idea of property implies an established legal
many 1s an identity infected 'th d'ff causa re 1atJon to the
anee. This science of ethics w1 . a I erence and does not go beyond appear- system. Toe right to property cannot be postulated as a priori with respect to
real, belies its own words; 'tswe~~~altalks of ~e ~bs?lute identity of ideaJ and society; for Hegel, the right is always relative to the universal, the community.
non-identity of ideal and real. reason IS, m Us essence and in truth, a For Hegel, the community is notan externa] force that coerces the previously
isolated individuals; rather, the community is intemal to the individuals them-
Por Hegel, the sin of Kant's . . sifyes~ -their own interrelatedness, which makes them who they are. Recognition
suppress what is opposed to it ~:tJc~l reas_onIS th~t lt can only dominate or (Anerkennen) is achieved between individuals when they understand community
of necessity. Yet for Hegel the I k se lt set~ ,ts~lf up m opposition to the realm as their interna! interrelatedness, "the we that is I and the I that is we." The
and the realm of necess 'ty , ac of genume identity of the realm of freedom community on this understanding is notan extemality thal uses the individual as
which domination is m~k=presses
relations of civil society as rel:~ t_hereal social relations of civil society in
relati~ns ~f indifference. Hegel refers to the
ve eth1cal hfe. Again to quote Rose:
a means in the name of redistributive justice. Again, l am referring to the example
of a progressive taxation, which sorne conservatives have argued should be
rejected precisely because such a measure uses the individual in the name of
. This ethical life is relative in two se
hfe, the practica! sphere of . nses. In the first place, this sphere of redistributive justice. 11 The community is intemal to the constitution of self-
1 consc!ous .suhjectivity itself. In Hegel, in other words, a good community is the
whole. It is a relative aspec:0JrY:C~
0
wo~ an~ possession, is only part of the
into the unity ofthe whO1 . a so ute e~ical hfe, which natural Jaw elevates condition of the flourishing of the individual. For Hegel the constitution of self-
the second place bow- e, mto the negahve 1
pnnc,p e of the whole society In conscious subJectivity is the hallmark of modemity. The network of reciprocally
, geo1sproperty f10
(relation). For they make "'"opl . re a .ns based on a lack of identity constituted individuals is the ethical life premised on established relations with
who can only relate externallr- e mto competmg ' isolated , " mora1, .. m- d" -
1v1duals the others in and through which the self-consciousness of the individual develops.
lack ofidentity. Bourgeois r 1
o one another, and are thus subjected to a reaJ In one reading, Spirit in Hegel is the primordial relativity in which the boundaries
law which guarantees abs:.:va, property presupposes real inequality, for the yield to our fundamental interconnectedness and our corresponding understanding

mequal1ty (lack of identity).~ ,onnal propeny rights presupposes concrete
that we belong to our community and therefore cannot be separate objects to be
Hegel does not deny the realit f . . . used by it.

abstract right which grow 5 t fY. CIVIi society or suggest that the sphere of
O it must be abolished Through ethica1 life and in it alone, intellectua1intuition is rea1 intuition, the
these relat1ons be mediated ou H e mststs

as a separate sphere of the.
Th
soc~;
.
1
. however that
~tak~hes no~ in the recognition of civil society
eye of spirit and the loving eye coincide: accordingto nature man sees the flesh
of his flesh in woman, according to ethical life he sees the spirit of his spirit
as the community. As Hegel expiai::: mstead m understanding it as the whole, in the ethical being and through the same.12

There is no question of denyin th.16 . To see in the Other the spirit of oneself is also to recognize the other as
~haraclerized above as the as g standpo~t; ~n th~ contrary, it has been different. Toe sameness that defines each one of us as an individual is not a
mfinite in the finite. But thispec,', of the relat1.ve1dent1.tyof the being of the composite of identifiable properties shared by ali individuals. We are the same
- a east must be mai tai _.., ... _ . .
.wso ute standpoint in which th 1 . n n~. u...1 111s not the in that we are I's; but to be a subject, to be an I, is to be different. In the to and
be only one aspect and the . el atmn has been demonstrated and proved to
'
be something one-sided. ISO atlon of the relati lik . fro of mutual recognition we leam to see ourselves in what appears alen and
10 on IS ew1se thus proved to
experience the alien looking back at us, recognizing usas another self-conscious-
Civ.il society for Hegel is but one as t . ness. For Hegel, a true unity is brought about be1ween universal and empirical
SOC1etyin other words is relative to :Cof an en~om?as_smg Sittlichkeir. Civil consciousness only by rendering transparent the network of reciprocally interre-
can be c~umscribed legitimatel b e communal mstitut1ons o~ Si1:lichkei1 and lated selves. This unity demands reciproca1 recognition. Only on that basis can
as a legitimare ci.rcumscription y f y ~m. For example, Hegel JUstzfies taxation the dilemmas of the philosophy of reflection be overcome. To summarize again
redress the inequality brought civi society by th~ community seeking to the discussion from the Jast chapter, in the philosophy of reflection that Hegel
protection and enforcement of . ut by the lack of identity inherent in tbe associates with Fichte, the I sees itself reflected in the alien but does not experience
pnvate property For Hegel, the right of prvate the alien looking back. Toe philosophy ofreflection is one-sided, the expression
44 I The Philosophy of the Limit
of individual domination. The other is reduced to a mirror for oneself. Absolute
intuition, "selfrecognition in absolute Othemess," is the overcoming of the
mirror stage, the recognition of the reciprocity of selfconsciousness.
The Hegelian Understanding of the Subject
The Hegelian understanding of community as the internal relations of a consti
tuted intersubjectivity implies a view of the subject. For Hegel, to understand the
subject itself as constituted in and through interactions in a preexisting ethical
life serves to expose the Kantian view of the autonomous will as an abstraction
from ethical relationships. The isolated individual prior to society symbolized,
for example, in the figure of Robinson Crusoe is criticized. 13 For Hegel, sucb a
vision of the subject is inevitably implicated in the conservative outcome of
measures such as progressive taxation.
The Hegelian view of the subject, then, at least as Hegel understood bis own
philosopbical position, neither denies the selfconsciousness of the individua] nor
privileges itas a selfcontained entity existing prior to society. Self-consciousness
is instead understood as an essential aspect of modero Sittlichkeit, which is made
possible precisely because of$e l~gal 8!!_4_t!_1(!ral achievements ofQJ9(iellp_!y. In
tbis sense, Hegel's understanding of the commull.itarian SUbj:t is uniquely mod
em in that it insists on the ethical significance of the protection of individuality.
For Hegel, a modem reconciliation between the individual and the community
must be a self-conscious reconciliation in which the individual recognizes that
his or her individuality is acbieved within a community that protects it. Reconcilia
/ tion can only be achieved in a relationship in which individuals are able to
recognize one another notas an extemally imposed limit, but as the condition of
selfrealization. Hegel's critique of bis predecessors was directed at the relations
of domination he associated with the philosophy of reftection, which could not
resol ve the tension between the individual and the community, freedom and
necessity.
The Critique of Hegel's Answer
to tbe Philosopby of Reftection
But does the Hegelian reconciliation of the individual with the community
through a shared spirit in and through which individuals are constituted escape
the relations of domination that he associates with bis predecessors and that
he so persuasively critiques? Both Adorno and Derrida suggest that Hegelian
reconciliation does not achieve its stated goal and that it tums against the commu
nicative freedom it purports to show as the truth of ali reality. To summarize the
central lesson of Adomo's negative dialectics, if communicative freedom is
"thought" as the unification of the relata into a comprehensive unity understood--
at least according to one reading of Hegel-as a deified subjectivity. Geist, then
"Postmodern" Challenge to Ideal of Community I 45
difference and individuality are again denied. In this sense, Hegel's conceptual
l:ii~~tics tums against its own ambition~ which is to overcome the dichotomy
~tv,,een_ the individual and the community, self and other, mind and _mauer.
Hegel's move to finalize bis critique in an all-encompassing system which is then
embodied as the community has also been critiqued, for example, by Heidegger,
who is in tum central to Derrida's thinking. The difference that makes a difference
is whether "the matter of thinking is the idea as the absolute concept" or whether
in a preliminary fashion ''the matter of thinking is the difference as difference. "
14
For Heidegger, the matter of thinking is:
Being with respect to beings baving been thought in absolute thinking, and as
absolute thinking. For us, the matter of thinking is the Same, and thus is
Being-but Being with respect to its differencefrom beings.is
For Heidegger, we can only think of a belonging together in which difference
is not eradicated if we step back 16 from the tradition of onto--theology Heidegger
associates with the whole of Socratic and postSocratic Western metaphysics.
Heidegger agrees with Hegel that thinking and Being belong together but not
within the horizon of Absolute Knowledge, at least notas Heidegger understands
it.
If we think of belonging together in the customary way, the meaning of
belonging is detennined by the word together, that is, by its unity. In that case,
''to belong" meaos as much as: to be assigned and placed inlo the order of a
"together," established in the unity of a manifold, combinedinto the unity of
''!
a system, mediated by the unifying center of an authoritativesynthesis....
However, belonging together can also be thought of as belonging together.
This meaos: the "together" is now detennined by the belonging.Of course, we
must still ask here what "belong" meaos in that case, and how its peculiar r
"together" is detennined only in its tenns. 1be answer lo these questions is
closer to us than we imagine, bul it is nol obvious. Enough for now thal this
reference makes us note the possibilityof no looger representingbelonging in
tenns of the unity of the together, but rather of experiencingthis together in
tenns of belonging. 17
Adorno shares with Heidegger the attempt to think "togetber" in terms of belong
ing rather than as an integration into a comprehensive system, although he does
SOin a manner very different from Heidegger's. As we saw in the tirst chapter,
his negative dialectics still works within Hegel's Logic. Implicit in Adomo's
attempt is the possibility that a deconstructive reading of Hegel, or as Derrida
has put it, "agreeing with Hegel against himself," 18 can potentially answer at least
sorne of Heidegger's criticisms of Hegel's subjectivism. However, it should be
noted that both Heidegger and Adorno read the Absolute Idea as the absolute
subject which is the basis for the authoritative syntheses of Hegel's system (to
bonow a phrase from Heidegger). On this reading, Hegel fails to overcome tbe
relations of domination he criticized in bis predecessrs in critical philosophy,
46 I The Philosophy of the Limit
Kant and Fi~hte, and indeed falls back into the very philosophy of reflection he
set out to reJect.
To summarize the last chapter, with the critique of communitarianism in
mind ~oncilia~ion cannot be captured by an all-encompassing, totalizing reason
conc_e1v~ as d_e1fiedsubjectivity. In Hegel 's supposed recovery of the difference
and md1v1duahty of self in the identity of Spirit, Geist encompasses what stands
op~sed_ to it. In this se?se, Hegel replicates the mistake of bis predecessors by
dommatmg the _othe~, 1f this time through the other's subsumption into the
Concept. Th~s, m spite of the power of bis critique, Hegel ultimately privileges
~e comrnumty over th~ indiyidual and does not, as "result, solve the ~b)em
of freed~m :'"d _necess1ty as he claims to do. This privileging, according to
Adorno, is d1sgmsed by the semitheological "spirit," with its indelible memories
of individual subjectivity.
. ~egative di~lectics, on theotherhand, exposes the violence ofHegel's "author-
1~t~ve synthes1s." Derrida malees a similar critique of Hegel's Aufhebung of the
dmde between the realms of necessity and freedom and the individual and the
community. To quote Derrida:
The HegelianAujhebung is produced entirely from within discourse from
within the ~ystemor the work.of signification.A detennination is negat~ and
conservedm anotherdetenninationwhich reveals the truth of the former. From
infiniteindeterminationone passesto infinitedetennination, and this transition,
produced by the ~ety of the infinite,continuouslylinks meaning up to itself.
The Auf1!ebung IS mcluded within the circle of absolute knowledge, never
exceeds 1ts_clos~re,never suspends the totality of discourse, work, meaning,
law, e~c. ~1~ce1t?ever dispels the veiling form of absolute knowledge, even
by mamtammg th1sform, the Hegelian Auflubung in ali its parts belongs to
what Balaille c_alls"the world of work." ... le Hegelian Aujhebung thus
~longs to restrictedeconomy, and is the form of the passage from one prohibi-
bon to another, the circulation of prohibitions, histnrv as the buth of the
prohibition.'9 -~
Repression in this sense Hes at the core of the Hegelian unification of Mind
and Being in Geist which is, in tum, the basis for Hegel's reconciliation of the
realm_of necessity. ~ith the real~ of frcedom. Spirit then, does not truly overcome
the bm~ PP?Slh~ns of subJect/object, particularity/universality, individuaJ/
co~umty . Thts fa1lure, for both Adorno and Derrida, has implications for the
way m wh1ch the community is conceived in Hegel and how such a view
s_hould_be critiqued or deconstructed. More specifically, we see the affinity with
hberahsm, because their concem is with the concrete individual and the protection
of individuality.
lndividuality Rethought against Hegel
F~r ~~orno, J:legel's deified, purportedly collective subjectivity does not unite
the md1v1dualw1th the community because world Spirit is what counts as the true
"Postmodern" Chaflenge to Ideal of Community 1 47
substance of the individual, even ifthat substance be the self-reflective subjectiv-
ity of Geist. Since what "counts" as the bue substance of the individual is the
collective, the concrete individual is erased. As Adorno remarks,
Evento Hegel, after ali, subjectivityis the universaland the total identity.
He deifies it. But he accomplishesthe opposite as well: an insight into the
subject as a self-manifestingobjectivity.There is an abysmalduality in his
constructionof the subject--object.He not onlyfatsifiesthe objectideologically,
calling it a free act of the absolute subject;he also recognizesin the subject
a self-representingobjectivity, thus anti-ideologicallyrestrictingthe subject.
Subjectivityasan existing realityof substancedid claimprecedence,but asan
20
"existing," alienated subject it wouldbe both objectveand phenomenal.
As we saw in the last chapter, the subject as spirit, the substratum of freedom,
is detached from the concrete subjectivity of the embodied, living human being.
According to Adorno, Hegel 's subjugation of the concrete subject in the name of
an imposed unity of the individual and the community in Geist is demonstrated
in Hegel's philosophy oflaw .21 "As the state, the fatherland makes out a commu-
nity of existence; as man's subjective volition submits to the laws, the antithesis
of freedom and necessity that Hegel critiqued in Kant and Fichte supposedly
disappears. " 22
Law is not external to the self-conscious subject who understands her oneness
with the community. Obedience to the rules is correct consciousness. Those who
don 't obey the laws don 't know who they really are. Thus, Hegel undennines the
sphere of prvate conscience he purportedly protects. This undennining of the
sphere of prvate conscience in turn has implications for the way in which the
relationship of law and morality is understood. For example, in Hegel, the
separation of conscience and legal nonns expressed in civil disobedience is
ultimately a fonn of false consciousness. The danger bere is that
[t]he reigning consensus puts the universal in the right because of the mere
form of its universality.Universality,itself a concept, comesthus to be con-
ceptless and inimical to reflection;for the mind to perceiveand to name that
side of it is the firstconditionof resistanceand a modestbeginningof praclice.n
lt is important to rememberthat Adomo's critique ofHegel's subsumption of the
concrete individual in objective spirit does not lead him to reject "the central
insight of Hegel's Logic, " 24 the reciprocal codetermination of purportedly individ-
ual entities. In Adorno, however, individuality is defined in relation to what it is
against, and is against it, tlte social Jeveling of mass society. Our self-defintion
is completely contaminated, for Adorno, by the consumer, which makes each
one of usa target for products. We may think we are being free when we choose
the latest product that will allow us to be who we are, but in reality we are simply
following the advertiser. As a result ofhis critique of mass society, Adorno wants
to give a different and indeed frightening interpretation of Hegel's insight that
 48 I The Philosophy of the Limit "Postmodern" Challenge to Ideal ofCommunity I 49

"society is essentially the substance of the individual. " 2~ According to Adorno, the individual proves bis unity with the people unmis~aka~lythroughthc dangcr
what parades as the reconciliation of the individual and the community, the of death alone. lhrough the absolute identity of the mlimte, or of the ~spect of
particular and the universal in the later Hegel, is the annihilation of individual relation, with the positive, ethical totalities. such as people.s. take tonn .and
constitute themselves as individuals. Jusi as the blowmg of_the wmrls
difference and, more specifically, the end of the dissenter. We can approach this
point from a slightly different angle using Hegel's own insight to undermine bis preserves the sea from the foulness which woulrl result from. adcontmual
d" calm,
r
so also corruption would result for peoples unrlercontinual or rn ce perpema
conclusions; the recognition of the universaljorm of subjectivity undennines the peace. 27
very subject it was meant to give expression to and to protect.
As a result, Here Hegel gives usa graphic image of the violent opening of ethics n.ece.ss.ary
for the ~ople to establish their image of themselves as a consolidated subJect1v1ty
(i]n the hundred and fifty years since Hegel's conception was formed, sorne of
(Toe Other must go under for the people to become one.? .Toe tra~e~y .f t~e
the force of protest has reverted to the individual. Compared to the patriarchal
individual who dies is wiped out in the march of world ~pmt.. The md1v1dual s
meagemess that characterizes his treatment in Hegel, the individua] has gained
biological destruction is given meaning in the larger eth1cal hfe of the people.
as much in richness, differentiation and vigour as, on the other hand, the
socia1izationof society has enfeebled and undermined him .... In face of the For ali of the poetic language about the honor of death, those of us who ha.ve
totalitarian unison with which the eradication of difference is proclaimed as a lived through the horrors of the twentieth century find it easy to agree w1th
purpos in itself, even part ofthe social force of!iberation may have temporarily Adorno:
withdrawn to the individual sphere.u.
What is decisive is the absorption of biological des~ct!on by con.sciouss:ial
In otherwords, Hegel's siding with theuniversal in the fonn of deified subjectivity will. Only a humanity to whom death has ~orne a~mrl1fferentas its me~ ~,
cuts off the very dialectical recip~ity
reality.
he wanted to present as the truth ~r.11 that has itself rlied can inflict it administrat1velyon mnumerablepeople. R1lk~s
prayer for "one's' own death" is liteous attempt to conceal the fact t at
nowadays people merely snuff out.
- According to Adorno, as we saw in the last chapter, the recognition of the
nonidentical relation of thought to reality, Being and the Concept, unleashes the
dialectic that has been contained in the Hegelian attempt to complete experience, Derrida's Exposure of the Violence
including ethical, political, and legal experience in the philosophical ascension lnherent in Rousseau's Dream of Community
to absolute knowledge. Adomo's materialism is the reverse side of bis critique
of Hegelian totality. Once we understand Adomo's materialism we can see the We now need to retum to the more subtle forms.of violence ithnhe~n~not:
relationship between bis suspicion of the Hegelian community and bis affirmation . Ad clearly remmds us that e 1 e
idealization of communa l ism. orno . . th society of rational
of singular individuals irreducible to their definitions within a pre-existing ethical
life. universal, transparent, tho~ughly rat~onahzed hi::nty~nc:nformist who can
wills carries within it a v1olent att1tude towar n ful! , al'zed
. .. th ery idea of a y ra ion I
Death, War, and lndividuality always be labeled irrat!onal. But m add~tton, e v arries within it the repression
mankind-and I am usmg that word dehberately~ . uni including
The trace of ~e constitutive outsicie~ that which cannot be encompassed in of what is other to any particular ideal of a rat1onal1~ .commrd . ty,
Geiit, pieSents i~;lf -most starkly as death. Hegel himself attempts to reconcile aspects of ourselves as creatures o f th e ftesh In Demda s wo s.
us with death as the inevitable falling away of the finite so that the infinite can . r 'ts excluding his other from the play
be. But death also plays a political role in Hegel. War is the uJtimate expression Man calls himselfmanonly.by rlrawmg mu animality, primitivism, childhood,
of supplementarity: the punty of nature, 0 ~ . . feared as a threat of
of the collective subjectivity of the people, an action against the other which . . . Th ch to these hnnts 1sa1once
madness, d1vm1ty. e approa . , 1be history of man
consolidates the reciprocally related network: of individuals into a unit, a self- death, and desired as access to alife without diffe~an.ce.amon themselves.?o
conscious people. calling himself man is the articulation of ali these hrruts g
In absolute ethical life, infinity-orfonn as the absolutely negative-is nothlng . , with Rousseau. Rousseau has been
other than subjugating ... taken up into its absolute concept. There it relates We turn now to Demda s engagem:nt t' nceptions of community
1
not to single specific matters, but to their entire actuality and possibility, that memorialized for bis attempt to reconctle rom~ ~ co ocratic dream of commu-
.th de B f Derrida even Rousseau s em
is, to life itself. Thus matter equals infinite form, but in such a way that its WI mocracy. ut, or . ffered by Hegel-that emphasizes
positive element is the absolutely ethical element (i.e. , membership in a people ); nity-certainly more democrattc than the one o
50 / The Philosophy of the Limit
self-govemment still carries within it the dilemmas Adorno criticized in Hegel.
Therefore, Derrida 's critique of Rousseau be.comes relevant to our discussion of
the ideal of community.
Derrida uncovers in the Rousseauist vision of equals fonning themselves into
a community in the burst of life of the festival, a festival of joy and sensuality,
the dream of life without diffrance and indeed of Iife without mediation. In the
dream, the participants are fully present to one another in a direct meeting of
equals. Toe dream is also of an originary instant of coming together without a
30
trace of what has gone before. Toe festival is an originary ritual which allows
for a nonviolent opening of ethics. It is also a festival, not a debate between
rational men. ln the dreampeople drink, dance, sing, and celebrate as they come
together to form the community. The Dionysiac moment in the fonning of the
community is thus not denied. The Rousseauist community, originating in the
festival and based on direct, unmediated face-to-face relations, expresses Rous-
seau 's dream of nonopposition between human beings and nature, the individual
and the community, the desiring, willful subject of the flesh and the public role
of the citizen. Rousseau privileges the living voice, speech as the vehicle for co-
equals who are literally present to one another as they codetennine their govem-
ment and indeed their destiny. Toe goal of full presence is precisely to belp us
escape fate by redefining our destiny together.
But according to Derrida, what one finds in Rousseau is not the fulfillment of
the dream of nonoppositional relation but the replication of the violent hierarchies
that inhere in the principie of identity.
What are the two contradictory possibilities that Rousseau wishes to retain
simultaneously'!And how does he do it'! He wishes on the one hand to affirm,
by giving it a positive vaJue, everything of which articulation is the principie
or everything with which it constructs a system (passion, language, society,
man, etc.). But he intends to affirm simultaneously ali that is cancelled by
articulation (accent, life, energy, passion yet again, and so on). 1be supplement
being the articulated structure of these two possibilities, Rousseau can only
decomposethem and dissociate them into two simple units, logically contradic-
tory yet allowing an intact purity to both the negative and the positive. And yet
Rousseau, caught, like the logic of identity, within tbe graphic of supplementar-
ity, says what he does not wisb to say, describes what he does not wish to
conclude: that the positive (is) the negative, life (is) death, presence(is) absence
and that this repetitive supplementarity is not comprised in any dialectic, at
least that concept is govemed, as it aJways has been, by a horizon of
presence. 31
In political tenns, Rousseau's vision of egalitarian community Iife perpetuares
the social inequalities that inhere in the violent oppositional hierarchies that
Rousseau hopedto overcome. Using Adomo's terminology. Denida undermoes
the logic of identity by uncovering the difference in the identity of Rousseau's
idealized community. lbus, for example, he shows us how Rousseau's originarY
"Postmodern" Challenge to Ideal o/Community f 51
myth of full speech assumes a linguistic system already in place in which the
members come to language. Speech implies "writing." Against Rousseau, and
the latter-day Rousseauian Claude Lvi-Strauss, Derrida argues that there is no
innocent community initially free of writing which is then corrupted by the
unintentional imperialism of the anthropologist. Indeed, the myth of natural
innocence which Derrida associates with the belief in a community free from
writing, is exposed by Derrida as itself a version of ethnocentrism. By writing,
Derrida meaos the system of representation that malees communication possible,
not just what we nonnally mean by writing, a system of graphic signs with
something like a recognizable alphabet. As Derrida explains, "[t]he genealogical
32
relation and social classification are the: ~t_itc~~-~ of arcl!e~writi_ng." Arche-
writig -is staD.ding in here for the structure of supplementarity, diffrance, "the
chance of interruption" of the Hegelian Aufhebung.
To back bis assertion that th~ is_no. comrnu_nity_witbout.writin~. Derrida
argues that the bestowal of the p~per name, which no society can avoid, signifies
writing in the sense that it implies a system of classification by which people
recognize one another. The_p_rope~..l!~-~-3!ries wtthJj_t_th~-~ o! i'!_~~tutional
history. In other words, the ident_iJy of speecil is. contaminated. b~.i~_g""ffir,
writi.g. Yet Derrida's rejection of Rousseau's myth of original innocence dix:s
n"'aiead him to reject what be understands to be the central insight of Lv1-
Strauss and Rousseau-the association of writing with vio_lence. Wntmg and
other fonns of "representational" systems, whether the}' be kinship systems or
political institutions are an attempt to defend against human violence. But to the
degree that the establishment of systems for ethical and political "representation" ""
identifies the norm and rigidly circumscribes the definition of right behavior, suc_h.
establishments carry within them their own violence. Toe_ve~ J_K>We~ ~on~e _1s
for Derrida "the originary violence oflanguage which cons1sts m mscnbm~ w1~ID
difference, in classifying .... To think unique wit~n the sy.~~m, to m~be
1t there, such is the gesture of arche-wntmg: arche-vmlence... For -~
1
R@_~eau's ethic of speech is a "delusion of presence mas_~_,_ -Flusm~ 1!1
is_dan_g~w..Y.s....bwwse -~ffil~Ji Wleooe-of18-.8.1!8-e
it coj:ic_eals_.or s__classifymg
P-Q~_er.
There is no ethics without the presence of tireother hui a1so,and conseque~~y
witbout absence dissimulation, detour, diffrance, writing. 1be arche-wnbng
is tbe origin of ,;.orality as of immorality. The nonetbicalopening of ethics: A
. f .. tbe etbical
v1olent opening. As in the case of the vulgar concept o wntmg,
instance ofviolence must be rigorously suspended in orderto repeat the geneal-
ogy of mora1s.J.I
Speecb and the speaking subject cannot achieve full presence because is
embedded in an already-given linguistic system, independent of ~y empmca1
subject. As a result, Iinguistic meaning cannot be reducedto th: m~t. of the
spcaking subject. Toe very iterability of a system of signs, the 1terab1hty that
 52 I The Philosophy of the Limit

makes a system of signs a l . "Postmodern" Challenge to Ideal of Communty I 53

:;a;r the me~sage of theru:;:; {:~g:adoxically what allows for the spiriting
n express1on Th . age cannot be db decentered subject is relational to the core. The subject can no longer be thought
transparency can e mab1lity to achieve foil self-t ~wne y the subject as
result of th understood as "the Law" f h ransparency ar community of as a self-identical, self-present entity, a self-bounded substance, but it can a!so
Thedisrue ~ommf~nity's basis in language o uman finitude, as wel! as the not simply be conceived as one with the collectivity.
. puon o tdenrt1 Of .
mg the in
have ~~o::i':;guis~ic
Y the Individua!
system through whi~~ ;~:t:t!ty
as Derrida bel" ~ _isnot overcome in a "n ,, .d n ~v1duaJand the community
by difference, includ-
The Relationship of Derrida's Deconstruction
of the Myth of Ful! Presence
. 1eves tt is the ew I entuy 1 . to His Reading of Levinas
phtlosophical, theobe .m . Hegelian system Derri , nc ~s1veofd1fference,
A!ffhebung is an th Ction Is clearly ethicaJ F . De . da s obJection is not only The deconstruction of the subject asan irreducible substance takes the critique
o er 01,;se f . or mda e1
that. lli~-~~!}Ce of ~; .O as.similation. Toe other i , as or Adorno, ~-~;i:el's of constituted essences in Hegel's Logic to its conclusion. Such an admittedly
full presence in its ~-- by__~J?!!.!!L~ Hegelian and indeed communal interpretation of Derrida 's deconstruction of the
~r.
~in spite of its obvioost ~Phisttcated form.. O::m:
is erased._ He eli s co~e~
metaphys1cs is the myth of proper is consistent with Derrida 's deeply sympathetic encounter with Emmanuel
lmplicit reliance us differences from He I) connects Rousseau's dream Levinas~__at_~mpt to _II!l)Ve_~_C::}'Q_n~ 9f d~ ~c_e_-to-fafe
me.taphy_sjcsi_nthe poJ'tT?y_~l
on the myth of ful] presenc:e Asto He~el because of a shared ~~!: "prior'.: 19_
tbe....es:tablished 37
unity oLthe.community. As Bemasconi
~oreover, Rousseauis not alone . . . Demda explains: has succinctly explained:
Jty. All llleaningand th r. m be1ngcaught in the .
a singular turn the .ere ore aUdiscourse 1 graph1cof supplcmentar- For Levinas the face to face "relation'" is immediate. This serves as an
, discourse f s caught there .
concepts move A-" o the metaph . . . , Part1cuJar!yand by additional ground forexcluding the possibility that it can be thought or presented
presence, of noobe "" when H ysics
egeI will proc . withi h.
n w 1ch Rousseau's from oulside by a third party. In the perspective of the third the facc to face is
leas mg and bein d" a.im the unit f 3
ton the leve! of disc g, Jalectics or histo . Y o absence and totalizcd, reduced to a unity for which he is the mediator. "
movementof med. ,.,;,.~ that we have cali- R ry wiIJ Continue to be at
is aJ i......,.,betwee = oussea ' The insistence on the face-to-face as a relation non-encompassable by the Spirit
. the preseoce of the fu o two UIJpresence u s w1~hing-to-say,
its art1culationswithin the II s~h. bringing to es. Esch~tolog1cal parousia ofthe community expresses Levinas' rejection of the Hegelian dialectic ofrecog-
before asking the (of} /!:r
COnsc100sness self g ali its differences and nition and even of Heidegger's Miteinandersein, the coilectivity of the "with."
seau 's text, we m~al questi?s aboutthe h: log~. Consequently, Levinas rejects the reciproca! constitution of subjectivities in and through the
of ~nce. from Plato to I the sigas of its s1tuation of Rous- Mitte. The Other as "absolute. O_th..er" cannot .be..reduced.JO:.~-~Jationship to me.
upoo self-rreseoce." Hegel, rh~ by . e to the metaphysics 1be alterity of the Other is displayed in her _separateness or asymmetry in her
Here again w ,.,._ the art1cuJatioO f
o presence s!ance fuward me. She is the stranger; yet as the -orphan;the widow, and the
hungry, she is also the one who judges me on the basis of my responsibility to
thus completely self--- to Hegel 's Geist tbe .
pre uausvarent Derri . subJect . her. In Levinas, responsibility does not await reciprocity, and therefore the
comS:::i and, more specificaJJy'. of theda 's PTOblematizatio~noand for itself, and
relationship to the other is necessarily asymmetrical. As Levinas himself explains:
. ty on the myth of self dependeocy of He f the myth of full
against
.himself On thi s readin-presence ', can be. mte gel's U""--iand
ruc,_, mg o f One of the fundamenta] themes of Totality arui Jnfinity ... is that the intersub-
!~!e,:11~. not rejected, it is ins-!:, Hre~~ _,visionof ~pn as a teading of Hegel jective relation is a non-symmetrica1relation. In this sense I am rc~ponsiblcto
...uuc mn of th ........,_-co: . moroa11 the Other without waiting for reciprocity, were I to die for it. Reciprocity is
e metaphysics of con titu cons.stent With H \ Y Communal
[S!upPlernentanry h . s ted essences. egeJ s own "decon- his affair. 39
. W lC IS ROthi
ne1therasubstancenorao 1tg, Deither a
Yet at times, Levinas goes beyond his own assertion that reciprocity is the
or on1ologica]concept esseoecof man. llis .. Dar an abse .
nol a ro c_anCOmprehend. Tbere IQ4( lwhichJ nce, is Other's affair. His anti-Hegelianism is expressed in his rendering the "absolute
P peny of man: 11is the very di.si . fore this r>rnn-.~lllelaphyscaI Other" as master. The recognition of the other as master-as she who cannot he
Cationof ...__ -,,.. ..Y of man
'
Wh IS the ethical d l . ua; Pl'Oper . IS recognized in Hegel's sense of Anerkennen-lies at the very heart of thc cthical
person hoodof the ind:id:!alc:gnificance of this disloCati III ge11era.1. "' relationship, or what Levinas speaks of as religion: "Toe interlocutor is not a
property as Hegel. Under one readi:
1
~: ~ived : ;! .l>toper? The
tt tn the Phi.loso, m1tiaJ form of
Thou, he is a You; he reveals himself in his lordship. Thus exteriority coincides
with_l,!.mastery. MYfreedoi;n is thuschallenged by a Master who can invest it.'...o
__
hy of Right, The -- Derrid3's-Critique of Levinas' anti-Hegelianism has both an ethica! and a
philosopbical dimension. Derrida asks who is the "absolute Other" in Levinas
 54 I The Philosophy of the Limit
or, perhaps more precisely, is there an "absolute Other" that is not, ironically
enough, absolutely identical? Here Derrida explicitly reminds us ofthe Hegelian
lesson that the hypostatization of difference-alterity is absolute-reinstates
absolute identity. As Hegel tells us again and again, difference from the Other is
an internal relation to the other. Derrida has clearly heard Hegel and heeds bis
message when he challenges Levinas' infinite Other.
Does not Levinas treat the expression alter ego as if alter were the epithet of
a rea1 subject (on a pre-eidetic leve!)? As an ephithe1ical [sic], accidenta]
modification of my reaJ (empirical) identity? Now, the transcendental syntax
of the expression alter ego tolerates no relationship of substantive to adjective,
of absolute to epithet, in one sense or lhe other. This is its strangeness. A
necessity due to the finitude of meaning: the other is "absolute Other" only if
he is anego, lhat is, in a certain way, if he is the same as l. Inversely, the other
as res is simultaneously less other (not absolutely other) and less "lhe same"
than l. Simultaneouslymore and less other, which means, once more, that the
absolute of a1terity is the same.41
Derrida uncovers in Levinas a "strange symmetry" in that "I am also essentially
the other's other and that I know I am. ,,4i Toe other is an other who can open
herself to me precisely because she is an other "in my economy." Without this
strange symmetry, or the introduction of a positive notion of infinity in whicb
the encounter with the infinite Other is an encounter with God Levinas' insistence
on the phenomeno/ogical as well as the ethical asymmetry 'of the Other would
degenerate into the worst sort of violence.
This is why God alone keeps Levinas's world from being a world of the pure
and worst violence, a world of immorality itself. The sbllctures of living and
naked experience described by Levinas are the very structures of a world in
which war would rage-strange conditional-if the infinitely other were oot
infinity, ifthere were, by chance, one naked man, finite and alone! 3
Por as Derrida only too welJ understands, the phenomenological asymmetry
~tween finite human beings is itself a form of violence. One example of tbe
v1olence of phenomenological asymmetry to which Derrida has been very atten-
tive is the asymmetrical relationship between Man and Woman. What has beeD
! protected in the asymmetrical relationship is not the mystery of difference but the
' reality of domination. 1 will retum to a more elaborate discussion of Denida's
understanding of phenomenological symmetry in the next chapter.
The Critique of Levinas
Por now, let me emphasize that Derrida argues that the relegation of the Other
to pure extemality is itself a form of self-containment. To be self-enclosed, to
deny the "trace" of the Other in oneself, is to be impenetrable, safe from tbe
"Postmodern" Challenge to Ideal of Communiry 1 55
contamination of the "outside." "Diffrance is difference under erasure," not the
glorification of phenomenological asymmetry. Derrida 's specific intervention into
Levinas is toargue instead thatethical asymmetry, if it is to beethical, nowdefined
as respectful of the othemess of the Other, must be based on phenomenological
symmetry. Toe strangeness of the Other is that the Other is an "l." But, asan
"I," the Other is the same as "me." Without this moment of universality the
othemess ofthe Other can be only too easily reduced to mythical projection. Toe
example of men and women is only one example. Even so, we can remember
here Simone de Beauvoir's account of how Woman's definition as Man's Other
does not recognize her othemess at all. 44 Derrida is also extremely senstive to
the exclusionism and prejudice that marks the arrogance o Western imperialism.
Derrida 's concern can be translated into an attempt to dream the dance of sameness
and difference beyond the demonstration of shared substantive properties and its
counterpart, the denial of ali phenomenological symmetry.
Levinas ultimately cannot help us in dreaming this dreamprecisely because of
bis re-inscription of a positive vision of infinity. As Derrida explains:
Toe positive Infinity (God)--if these words are meaningful--<:annotbe infi-
nitely Other. lf one thinks, as Levinas does, lhal posilivelnfinity lolerates, or
e ven requires, infinite alterity, then one musl renounceali language, and firsl
of a11the words infinite and other. Infinilycannotbe understoodas Otherexcept
as the fonn of the infinite.45
Yet, as we have also seen, for Derrida the ultimate attempt to think the infinite,
Hegel's Logic, re-inscribes the very metaphysics of constituted essences to which
the Logic aims its fire. According to Derrida, if we are to convey a sense of
relation in which the relation is prior to the whole, we must be gin with Heidegger's
distinction between the belonging together, which is a unity, and the togethemess
of belonging. Derrida traces Levinas' misguided rejection of Heidegger to a',
misunderstanding. As Derrida explains:
If to understand Being is to be able 10!et be (that is, to respectBeing in essence
and existence, and 10be responsiblefor one's respect), then lhe understanding
of Being always concems alterity, and par excellencethe alterity of the Other
in ali its origina1ity:one can have to !et be on1ylhat whichone is not. lf Being
is always to be lel be, and i( to 1hinkis to }eJp_ajogbe, then Being is indeed
46
-~_?!b_e1..of.tbou~__!_: - -
To think the Being of the Qther in this way is to think the Other as a being of
phenomenological symmetry, and thus as both same and different.
The Thinking of Finitude
Por Derrida, the original finitude that disrupts Hegel's Aujhebung~all~,
according to context, writing, diffrance, the snucture of supplementanty-1s
graphically apparent in its effects in death. Death is the constitutive outside par
 56 I The Philosophy of the Limit
excellence as it is shared by all of usas mortal beings. Death belies the myth of
full presence, and foils our human attempts ultimately to control our fate. Yet _
the death we know is not our own death but the death of the desired __ Qther. As
Freud has so beautifully demonstrated, the fear of death is the fear of object
47
.; f ,loss; it is the fear of being helpless before our own grief and of being powerless
.to bring the Other back. To !ove the mutable is to risk this loss, to experience
inevitably the absence of the one we have loved. The desire to draw rigid
boundaries, to achieve satisfaction purely in oneself---clinically referred to as
narcissism-is an attempted defense against both the risk and the loss of love.
The-fear of death is the fear of the Other we cannot enclose. It is no coincidence
that grief over the death of a lost one and grief over the desertion of a lover 1lre
both experienced as grief, as the longing for the one who is absent. To be with
diffrance is to be with the mutable.
Derrida and Adorno, in their recognition of the constitutive outside, aremateri
-j alists. Geist cannot encircle itself, protecting us from that reality 9f finitude. Toe
~her arways escapes the subject's attempt to make it its own.- We cannot make
up in the "reassuring other surface of the positive- all we have lost. The risk of
love for the mutable is notan investment in the ascension to absolute knowledge.
For Derrida and Adorno, Hegel's system was to free us from the risk of !ove for
the Other; their message is not only that we cannot be safe from the risk of tbe
love of the IIl.utable, it is aJso a warning against the hubris of the myth o[ safety,
if understood as protection agail1st othemess, maintained by the iiiusion of ~lf
containment.
The Ideal of Communicative Freedom
Does this warning mean that we reject the ideal of community as the hope for
a nonviolent ethical relationship to the other? 1 think the answer is no. But fust
we must distinguish between the effects of Adorno and Derrida's deconstruction
of the logic of identity, as these shift both our understanding of the actuality of
concrete ethics, Sittlichk.eit, and the "ideal," or the chance of communicative
freedom which is often blurred with acceptance of participation in an aireadY
established community life. lf anything is clear, as we have seen, it is that Derrida
and Adorno reject the identification of ethics with the perpetuation of order per
seor with the current order, e ven if conceived of as a "conversation of mankind ...w
The disruption of the force of the Other and othemess tums against the appeal to
a selfenclosed tradition.
According to Derrida, there can be no self--enclosed tradition, ethical or other-
wise, which will not show the effects of the economy of dijfrance. Remember,
for example, Derrida's demonstration of how Rousseau's community of self
presence denied the disruptive force of language. The historical horizon of under
standing which gives body to our ethical precepts is not denied, it is instead
shown to be open-ended, precisely because such precepts cannot be separaced
from language's power to define the ethicaJ, but only as linguistic formations
"Postmodern" Challenge to Ideal oJCommunity 1 57
which can never be finnly rooted in reaJity. As a result, the conventions of a
community cannot be shown to be a closed totality. The ethical message in both
Derrida and Adorno reminds us to care for difference, the difference we can only
glimpse as beyond contradiction and appropriation. Th~ care for differe~ce needs
a generosity that does not attempt t9_grasp_w.hatis other as one's own. The dan~r
of certainty is that it turiis against the _g~nerousimpulse to open oneself up to the
Other, and to truly listen; fo risf th-chance that we might be wrong. The move
u:;-nonc1osure. then, Can- anct shoulct be uncterstood ethically.
Derrida has eloquently elaborated the significance of this move to nonclosure
by playing off the beginning and the end of the Phaedrus. The deconstruct1on
.
of the myth of origin leaves the question "from whence do I hail" with no
definitive answer. Without an answer to that question, and without an ability to
know and thus possess the Good once and for ali, there can be no confident taking
the other by the hand, and saying "Let us go." For Derrida, _the "community"
that has leamed the humility and the pain of the lesson of fimtude cannot s~r
with confidence, driving the misguided who do not see it their way out of their
path.
A community of the question, therefore, within lhat fragile moment when lhe
question is not yet determined enough for the hypocrisyof an answer to ~ave
airead y initiated itselfbeneath the mask of the question,and not yet detenmned
enough for its voice to have been already and frauduleni_ly artic~~t~ _within
the very syntax of the question. A community of decis1~n,of m1tiat_1ve, of
absolute initiality, but also a threatenedcommunity,in wh1chthe quest_1on has
not yet found the language it has decided to seek, is not yet s~re of 1ts own
possibility within the community. A community of the quesuon alxiut the
possibility of the question.si
And what is the question about the possibility of the ques~o.n, _if?t the dream
of communicative freedom, in which this dream of reconc1bat1on is no longer
conceived as a unity? If the Other is assimilated as one's own .. ~en we have
fallen back into the philosophy of reffection Hegel el?'luently ~tJqued. !put
it as strongly as possible, the protection and care of d1fference ts not cam<=:<1 out
to the detriment of the possibility of mutua1 selfrecognition, if understood m the
sense of the recognition of phenomenological symmetry, but_in its ~: Ado~o
put it this way: ''The reconciled condition would not be the p~ll?5ophical impenal
ism of annexing the alien. Jnstead, its happiness would he m the fact that the
.
alten, the proxmuty
m 1t 1s granted, remams distan! andbeyond that
wbat ts
which is one's own." 52 .
Adomo's philosophy of redemption is the counterpole to his assert1on ~gai~st
Hegel "a]I kn led fa! ,,5i Toe normative standard of commumcattve
"---' ----~be---_tho_Jt~
-~sh
____
---~ already achieved reality lts critica! power Hes
u..aiom cannot ug t as an - . . . -
precisely in that it shows the world as distorted and ind1gent.m companson wtth
the reconciled state. Adamo open1y embraces an apocalyptJc tone.
 58 I The Philosophy o/ the Limit
Toe only philosophy which can be responsibly practiced in face of despair
is the attempt to contemplate ali things as they would present themselves from
the standpoint of redemption. KI!owle_dgehas no light but that _she<lon the
1world by redemption: ali else is reconstruction, mere tecliniciue~PerspeciVCS
!must be fashioned thatdisplace ano. estrange the world, revea! -ftto be, with its
t :nfts and crevices, as indigent and distorted as it will appear one day in the
'messianic light.s.
Derrida's Warning against Adorno's
Philosophy of Redemption
Derrida warns us against the apocalyptic tone while expressing bis deep sympa-
thy with it. Por as Derrida himself realizes, when one speaks of such a tone one
inevitably speaks with it. Yet Derrida also warns that such a tone seeks to soar
above the lessons of finitude. Derrida mimics that apocalyptic tone in its defense
of sectarianism:
We are ali going to die, we are going to disappear. And this death sentence,
this stopping of death ... can only judge us. We are going to die, you and 1,
the others too, the goyim, the gentiles, and ali the others, ali those who do not
share this secret with us, but they do not know it. ... We are the only ones
in the world. 1 am the on1yone able to revea! to you the truth or the destination.
... We shall be a sect; we shall forma species, a sex or gender, a race .
by ourselves alnne; we shall give ow-selves a name.'s
Derrida, in other words, wams us also against the sin of the Semites, wbicb,
in spite of the best intentions, replicates a form of domination. But does he
completely reject the dream of communicative freedom? Does he tum away from
the dream of relations beyond indifference and domination that Hegel tried to
show as the truth of hisLogic and Heidegger dared to approach again, understand-
ing that his approach would tak.e him beyond the reaches of Western metaphysics?
''The economy of diffrance" can convincingly be interpreted to belie and disrupt
even Adorno's appeal to redemptive perspectives. As Denida himself explains:
''Thus, dif!rance is the name we might give to the 'active,' moving discord of
different forces, and of differences of forces, that Nietzsche sets up against the
entire system of metaphysical grammar, wherever this system govems culture,
philosophy, and science. = against the social Ieveling of mass society. In a thoughtful essay, Charl_esLevm
Diffrance names the deferral in time and space of the closure of the circle of
immanence in Hegel's absolute knowledge. That much is clear. But the attempt
to think difference as a conceptual counter to Hegel's absolute knowledge is aJso
rejected. As Derrida knows only too well, the attempt to disprove Hegel proves
Hegel right at the very moment of rejection. Derrida 's own moves to disrupt tbe
Hegelian system have beeo characteristically cautious. As Derrida explains:
,_J.
"Postmodern" Challenge to Ideal of Community I 59
Elsewhere, in a reading of Bataille, 1 have attempted to indicate what might
come of a rigorous and, in a new sense, "scientific"relating of the "restricted
economy" that takes no part in expenditure without reserve, death, opening
itself to nonmeaning, etc., to a general economy that takes into account the
nonreserve, that keeps in reserve the nonreserve, if it can be put thus. 1 am
speaking of a relationship between a diffrance that can make a profit on its
investment and a diffrance that misses its profit, the investiture of a presence
that is pure aod without loss here being confused with absolute loss, with
death.~'
But how much does this tell us beyond the suggestion made earlier that we
cannot self-satisfiedly make an appeal to a self-enclosedSittlichkeit? Jsjijfrance
th~ e:s,_n~~t reminder of tbe limits of philosophy or more than tbat, is it tbe lie
to_all redemptive visions?
I would suggest ttilli"berrida's ambivalence toward giving voice to "redemp-
tive" perr;pectives does not just express tbe reluctance to "represent" divine
aspiration. This reluctance, for example, is not found in ali of his texts. In his
8
essay on Walter Benjamin's ''Toe Task of the Translator,''s Derrida appeals to
the promise of reconciliation in a messianic tongue as tbe promise of translations.
Yet Derrida insists it is a promise of reconciliation and not an achieved reality
But he remiods us, "[a] promise is not nothing," and indeed h_esugges~ th~t
without this promise the task of the translator would be imposs1ble. De!'!J_da is
s~siqgly sympathetic to Benjamin 's _assertion that transla.ti_o:is ."redemP!iv~"
~!cL~.ause...it_inevitably appeals to tbr_pr_o_n_tj5'e._of ~?.IJ.(:ll!atl~~ 1:!l J!lCSs1an1c
~~gue. .
Derrida also is only too well aware of tbe danger of a re~at in~o pre-H~gehan
metaphysics, in which we are Jeft again with tbe irreconc1lable dichotorrues. He
would, 1 believe, agree with Adomo's warning against the reversion "to tbe ~re-
dialectical stage: the serene demonstration of the fact that tbere are two
to everything. ,,s9 Deconstruction dedicates itself to the disruption of duahstlc'
hierarchy, not to its acceptance. . . .
And as I have already suggested, ~!'llda an~~d~I'll9_8SOC1ateh1e~h1~<!1
dualism with the imperious subject of logocentS!D, Gei_s~. But does th~ disruP1:_ 1on
of dua!istic heraii::hy ad--the- dlStotion of- the centered, sovere1gn subJect
lead to the embrace of communalism? Certainly, not in tbe Hegelian sense of
encompassing the individual and tbe community. But as we hav~ ~5':' seen, ~tb
Adorno and Derrida understand individuality relationally, eveo 1f tt 1s a relatt~n
suggests that Derrida stops short of communalism, precisely because of its l_"lege-
1;.... commumty
.... , overtones, replacmg w1m"n et wo" 1 "" of reci.......,.."
., .,.......
11Y const1tuted
subjects."
H hierarchy is the foundation of an imperious subject, the network is the
unilateral construct of a subject, albeit a self-effacing subject, a subject that
 "Postmodern" Challenge to Ideal of Communiry I 61
60 I The Philosophy of the Limit

orients and displaces itself at will. Only the community challenges with its of this "dream," we must retum again to the relationship between Derrida's
unpredictable heterogeneity, for the community cannot be broken down in a deconstructive exercises, the ethical relation, and the law. Otherwise, at least on
sequential play of discrete encounters riveted on a uniform coefficient; and only one interpretation of deconstruction, we are left with the "politics of suspicion."
the community can be challenged .... Derridean _deconstruction_is another Toe role of the deconstructionist is reduced to the exposure of the marginaJized,
60
gam.bitin the old philosophical game of deferring ~e danger of the world. the excluded, from any community. Deconstruction, in other words, exposes
how the very logic of the establishment of community draws boundaries that by
But the philosophy ofthe limit, as I have re_muned ~_onstruction, (?_~ al_~_!)e necessity leave sorne out. Alasdair Maclntyre has gone so far as to argue that the
understood as deferring_ th_edanger of corrununities. that insfst Ori"]iJ! ~~l!CC- ''postmodem" and, more specifically, the French "postmodem" suspicion of
The power of communalism as a dream lies in the chance of uncovering or having any and every tradition exemplifies what Emile Durkheim referred to as social
revealed to us a different way of belonging together, which does not revert to pathology. 63 On this reading, the political role of the deconstructionist can only
classic individualism and which is also not just the identification of the individual be to disrupt, not to participate. 64 To answer Maclntyre we have to examine more
with the community in mass society. Derrida hesitantly steps forward into the carefully the intersection between Derrida's deconstructive intervention into the
haze of the dream of communicative freedom. We cannot with certainty point works of Hegel, Levinas, and Lacan because, as we will see, it is precisely th.e
toward the good Jife and say "Let us go," but we can beckon: rereading of this intersection that yields a.."new" ethical configuration irreducible
"Come" [Viens] beyond being-this comes from beyond being and calls the politics of "suspicion."
to~----
beyond being, engaging, starting perhaps in the place where Ereignis (no
longer can this be translated by event) and Emeignis unfold the movement of
propriation. If "Come" does not try to lead or conduct, if it no doubt is an-
agogic, it can always be led back higher than itself, anagogically, toward the
conductive violence, toward the authoritarian "duction." This risk is unavoid-
able; it threatens the tone as its double .... "Come" does not address itself,
does not appeal, to an identity determinable in advance. It is a drift .. ,
underivable from the identity of a determination. "Come" is only derivable,
absolutely derivable, but only from the other, from nothing that may be an
origin ora verifiable, decidable, presentable, appropriate identity .... 6 '

Derrida does not simply refuse the apocaJyptic tone of many of the writers he
most admires, he wams them against their own violence. He hesitan ti y recognizes
the dreamof communicative freedom, the ideal of conununity or communalism
understood as belonging together wthout violence, because he understands so
dearly the horror of the distortion of that dream. And yet, without it, we cannot
recognize the phenomenological synunetry of the Other, which demands tbe
affirmation of our sameness as well as our difference. Communalism, in this
sense, as an ideal, expresses the recognition of the sameness that marks each one
of us as an individual and thus as both different and the same. lt is in this
recognition of the connection between sameness and difference that allows us to
understand belonging together without sorne overriding spirit in and tbrougb
which we are connected. H this is just a dreamin...our_ w~ld of antag9_n_is.mand
violence, it does notmean...th.atjt__i~ not _a__ -~g:-jfor
dream_WQ..r:t}t does
l~guage of the dream mean that it is absolutely.~j.1:,te. To q'uote Derrida,
"Doesthe dreain tself not prove that what is dreamt of must be tbere in order for
it to provide the dream?'.62 Perhaps there is no answer to tbat question except that
sorne of us continue to dream.
But if we are to understand more fuUy the eth.ical and political significance
 Ethical Significance of the Chiffonnier I 63

the ethical desire of the philosophy of the limit by further examining Derrida's
engagement with Levinas' ethical philosophy of alterity. . ,
But as we also saw in the last chapter, we cannot fully unders~d Demda .s
3 encou~ter with Levinas without also engaging with bis deconstructlon ~f Hegeh
anism. When we confront our desire to "escape" from Hegel, to put h1m to re~t
once and for ali, we need to ask why we are trying to get out from under h1s
The Ethical Significance shadow; or, more precisely, in the name of what do w_emake ou~ escape. ~ne
answer, of course, is that the deconstruction of Hegel s_imp~yputs mto operat_'?
of the Chif.fonnier "the truth" that speculative reason will always tum agamst 1_tsown_pretenses 1f 1t
cannot come home to itself in Absolute Know~edge. On thts rea~mg.' th ~ motor
l..etus dcscend a little lowcr and consider one of !hose mysterious cnmtures who Jive. as of deconstruction is speculative reason, e ven 1f now tumed agamst Jtse1 .
it were, off the leavings (dijectioru)of the big city .... Hcrc we bave a man whose But there is, as I have suggested, 11:1 altemative rea~ing that !ocates the drive
task is to gather the day's rubbish in the capital. Everything that the big city has cast off, behind deconstruction in.an. ethical...de-~, On the ethtcal read1?g 1 offer here,
everything it Iost, cvcrytbing it disdained. everything it broke, he catalogues and collects. -----=-----,---
- - - -- . D 'da Glai-a kmd of wake for
we asK ourselves the openmg questton o em s . .
He combs through thc archives of debauchery, the stockpile of waste. He sorts things out Hegel with ali the implications of both death and salvation that a wake 1m,fl.1e~
and rnakes intelligent choices; like a miscr assembling his treasure, be gathers the trash
that, after being rcgurgitatcd by the goddess of lndustry, will assume the shapc of useful
"what' after ali of the remain(s), today, for us, here, now, of He~elT m e
' ' . th relentless machmery of the
or gratifying objects. name of the elusive res1duum left over once e . , .
-Walter Benjamn . . rk Th ubtle ..J.. 11 .....sing of Demda s opemng
Hegelian dialectic has fimshed 1ts wo - es 1' ..... f
te the questmn of what remams o
question acknowledges that we cannot separa . . fth restthat has
lntroduction Hegel from the question of the remains of Hegeh~,s~- What o a ~nd of tribute
been pushed out of the system? To ask the quest1on is already
. h bee 0 attered Glas attempts the
How are we to begin to present the intersection of a deconstructive intervention to the forgotten Other, whose rem~ns av~ scu the. work of mouming
into the works of Hegel, Levinas, and Lacan as an ethical configuration? As I only salvation of the rest that rema1ns possible thro gh_ . . deed
1
itself, but the project is still one of ''salvation" and n: JUStdtsruptl::~::Cr th~
hope to show, the figure of the Chiffonnier may help to bring into focus what is
unique about the ethical positioning of the philosophy of the limit. To understand for Derrida, it is only through the work of mouming
remains because there has never been, nor can there
btha~ we ~~ri~g of the rest
~a been shut out is
why I have cbosen the figure of the Chijfonnier, we need to focus again oo the
rebellion against Hegelianism. In this chapter, 1 want to give a different emphasis that makes fully present what has been shut out For V: th asremains demands
to the ethical impulse behind the rebellion against Hegelianism, beyond the literally not there for us. Even so, the work of mdoubr=lgft :ver from Hegel's
positioning vis3-vis the ideal of community we discussed in the last chapter .
the numet1c . . t scrape through the e ns e
pers1ste~ce o . that .. '(t]he rest, the: .reOWn(s), is
lndeed, 1 will suggest that the entire project of the philosophy of the limit is system at the same time that we recogmze . well our best sa1vage
driven by an ethical desire to enact the ethical relation. Again, by the ethical unsayable.' "' Glas does rath~~ than says. ~da __
may _ - -
relation I mean to indicate the aspiration to a nonviolent relationship to the Other, maD.!_Q_'!f~~!t_itllaJeCh!ffonnier. . Benamin's redemptive criticism
and to othemess more generally, that as sumes responsibility to guard the Other Even if, however, Derrida practtces_W~terth !a he practices redemptive
against the appropriation that would den y her difference and singularity. 1 am only through parad.y and iro_ny, that is stlll e the prescriptive or ethical
deliberately using a broad brush in defining the ethical relation, so as to include criticism. 6 It is precisely the sdence be~o~ the name led many readers to argue
a number of thinkers who share the aspiration to heed the cal) to responsibility force heeded in the philosophy of the _lnrutthat the radicalindetenninacy
for the Other, but who would otherwise disagree on the philosophical underpin- that what has been called deconstmction has!.~ f tbical udgment. But the
. th th imposs1b1hty o e 1 .
nings of the ethical relation and on its precise definition. I am, then, defining the of meanmg and, therefore, w1 e . . should not be confused w1th
purpose of this chapter is to show that this st ence1 will seein the following
ethical relation more broadly than the thinker Emmanuel Levinas, with wbom
th . al t"on
1 nor as we
the phraseis usually associated. 1 1 will, however, retum again and again to the complete rejection of the e 1c re~ ' "thin specific contexts, of
:'beyond" ...toooroJogy, '
O
I..,evi.nas'
specific fonnulation of tbe ethjcal relatiorJ as.11:te. cbapters, does this silence implicitly reJect the ' wtthat Derrida meoretically
because, as we began to see in the last chapter, it is Levinas' own understanding ethical and legal judgments. lns~ad I wan~::: 1 retationship to othemess
of the ethical relation tbat Derrida interrogates. I will attempt to make explicit clears the space for the elaborahon of the

62
 64 I The Philosophy of the Limit
that Levinas describes as proximity, 7 a relation that is prior to the subject and to
~ontractual consent and yet not encompassed within a unity. Derrida, however,
IS always careful to preserve the distance that respect for the othemess of the
O~r i~plies-~hich is not ~o:on~st Derrida with Le vi nas necessarily, because
~vmas conceptlon of prox1m1ty 1s based on the temporal distance that inheres
lD the_prece~nce of the Other to me. Deconstruction practices Nietzsche 's action
at a distan~ m the name of responsibility to the Other. 8 As we will see, a crucial
~pect of thts "action at a distance" is the recognition of the question of sexual
d1fference as crucial to the aspiration to enact the ethical relationship. As such,
1!1ee~gagement with Levinas cannot be separated from a deconstructive interven-
tion mto the psychoanalytic theory of Jacques Lacan.
Derrida is often mistakenly understood to criticize Levinas for bis inevitable
f~I back into the language of ontology. Derrida recognizes, however, that Levinas
~tmself ~nderstands that he can only disrupt metaphysics from within the tradi-
'.tto~. 1 wdl suggest that Derrida does show the inevitable dependence of Levinas'
~ect on the ~anguage.of ontology, but not, h~wever, to resist Levinas' concep-
n of the .eth1cal relatton; rather, to salvage 1t from potential degeneration into
very ~mlence toward othemess that the philosophy of alterity attempts to
ard a~amst. In other words, Derrida's _deconstr:u~tionofLevinas....carr itselfj,e
-read_eth1cally. lnstead of simply preferring one to the other, we nee<il:O read
'Dem~a and Levinas together to heed the call to responsibility and to enact a
:nonvmlent relation to otherness.
The Ethkal Significance for Levinas
of tbe Relationship between Being
and Nothingness in Hegei'
But let 1:"e~no~, first to Levinas' rejection ofHegelianism for its replication
of ~e log1c of tdentity, and then retum again to Derrida's intenogation of botb
~~mas and H~gel. By the}ogic of identity, as we have aJready seen, I mean to
md1~ate ~e umty of Meanmg and Being that is disclosed in Hegel's Logic.9 as
~e ~th of the actual. To understand the ethical intenogation of the Iogic of
l~enb~, then, we must once again move within the circle of Hegel's Logic. tbis
hme _w1than emphasis on the relationship between the categories of Being and
Nothmgness. What I offer here is a conventional reconstruction of the Logic that
does not attempt to defend a reading of the Logic that might meet the opposition
of Hegel's poststructuralist or "posbnodem" challengers.
~n Hegel: the category of Being is the necessary starting point of all thoogbt.
Tht~gs manifest ~emselves in and through Being. Reality appears to the thinldng
SU?Jectas an obJect of thought only because first and foremost things "are."
~tthout ~e category of Being there would literally be 00 reality; we would
mstead be immersed in "the nigbt in wbich cows are ali black." Beiog is both the
EtJucal Significance of the Chiffonnier 1 65
necessary starting point of ali thought and the minimal detennination of things.
Being is, thus, the most universal ontological category. And yet Being as a
category is both abstract and empty. Certainly ~eing is "nothing," not justa
being, because a thing presupposes many determinations other than its mere
being. Being "is" only in and through opposition to nothingness. We know
"Being" only by what it is not: nothing. The copula affirms the inevitability of
the is, the category of Being, yet at the same time, Being can be conceived neither
as a predicate nor as a subject of the sentence. As copula, Being exists as
something other to itself in which it is united to the diversity of determinations.
It includes, therefore, that which is not: nonbeing. Of course, nonbeing is also
notable to be what it is. nonbeing, unless it relies on its opposite, of wbich it is
the inseparable complement. Hegel'sopening moves in theLogic showthat Being
and nonbeing cannot be what they are unless they pass continuously into one
another as Becoming. Toe unity of Being and non-being is their ceaseless chang~
ing into their opposite, an endless movement ofbecoming wbich is the ontological
core of ali movement and materiality. Toe interplay ofBeing and nonbeing signals
the presence of the Absolute as the very movement of the interpenetration of
oppositional categories. Nothing is, unless it comes to be in and through the
circle of Absolute Knowledge. H;&_e_l'~ Logic culminates in the demonstration
th.!ltth>ught and Being __ are the two opposlte n_ame~ _<!fthe C_on~ept?f I~_ea.The
thirikm.gwhiCh-icheVes Absolute K.nowledge realizes that the self-movement of
the Concept or Icka is its own essence, and grasps the full actualization of the
structure of the Iogos in thought and reality itself. Toe unity of Meaning and
Being within the circle of the Absolute yields full knowledge of the truth of the
essence of the actual. We come home to ourselves through the recognition of
identity in nonidentity, of thought in Being. ~-~_is !!Q~-~J!~E.r!_nooutsi~-
Qt!icrness i&.rec.a.pture..aod cor.pletely so, in the circle of the A~solute. ~othmg
escapes, for nothing is, only as nonbeing, 10 the dialecti~ oppostte of Bemg.
Within Hegel's Philosophy of Right, 1 1 as we saw m the last cbapter, the
realization of the truth of the actual yields the complete transparency of the
detenninations of Sittlichkeit the collective ethics of modernity For Hegel, as a
result, we can know the truth of the ideal of the community. u ~lthough we need
again to be reminded that if Hegel himself retained the tens1on between any
existing state of affairs and what the actUalized co~ o~rn:mocracy demands-
and, therefore, his account of Sittlichkeit cannot be sunphstically condemned, as
it often is by Hegel 's "liberal" critics, i3 as merely an apology for current
social order-he did identify ethics with the actual. As a result, the dilemma_of
legal interpretation we are so troUbled by today w~ ":solved by the Hegehan
identification of truth with hlstory. Toe meaning of life m the strongest poss_ible
sense of meaning is revealed in the circle of tbe Absolute .. The self-consctous
14
t'eCOgnitionof the "we tbat is I and the I tbat is we," the corrung ho~ to o~lf
througb the Other, is not only a description, but also a ~ve practtce
embodied in the institutions of rigbt in a moderolegal system.
 66 I The Philosophy o/ the Limit
For Emmanuel Levinas, Hegel's political philosophy exemplifies the thinking
of totality he associates with ontology. The thinking of totality, for Levinas,
carries within it the danger of totalitarianism because such a thinking would deny
"actuality" to the Other "excluded" from the system. We are again reminded,
here, of Hegel's infamous statement that there is no place for Siberia in the
16
philosophy of history. Siberia becomes the symbol of the othemess that has
been squeezed out through the operation of the Hegelian dialectic. That which is
left out and thus denied actuality does not count. Levinas' ethical subject called
by .the Other "dispenses with the idealizing subjectivity of [Hegelian] ontology,
wh1ch reduces everything to itself. " 17 So far we would seem to only be going
o ver the familiar territory of the last chapter, but we need to explore in more
depth the significance of Levinas' own conception of infinity, which is to counter
Hegel's infinite.
According to Levinas, relations of mutual recognition in Hegel's Absolute
Knowledge are the ex:ample par excellence of the reduction of the Other to the
synchronization of self and other that denies the othemess of the other. There is
Jways a trace of otherness that cannot be captured by my "identifying" with-~
Other in relations of mutual recognition. The Other caInot-be reduced iri eliion
t me, by wbich I grasp her essence in the "we that is I and the I that is we."
basis o~ ethJ_csis not identification -~ith those whom we rec~_g_!lizeas like our-
selves, mstead the ethical relation inheres in the enCOllnter with the Oth:f;the
stranger. whose face beckons us to heed the call to ~s_ponsibility. Tii:"-precedence
of the Other meaos that my relationship to her is necessarily asymmetrical.
Reciprocity is, at the very most, the affair of the Other. 18
In the asymmetrical and yet face-to-face relation with the Other, the stranger
who calls to me, the subject first experiences the resistance to encapsulation of
the "beyond." In the face-to-face relation we run into the infinity that disrupts
totality. Levinas' account ofQle face__t9_faceis still a phenomenologyLhowever,
P!Crjse!)r_~~1:'-~-~ is-~ 8!\QJhf9~gh_ou~P[O!iffiity-to the Other iQ_ i;:;iCrfiice
that we experience tlii resistance of otheffiess. We encounter God the tnUlscen-
dence inherent in the ethical relation itself. Transcendence in Levinas is temporal,
not spatial. He does not point us to a "beyond" that is "there," a someplace where
we are not. Nor can infinity be reduced to the mere Other, to the totality of what
is, although there is a reading ofLevinas on which infinity is completely ..beyond"
history, a reading founded in the ambiguity of Levinas' own text. There is,
however, clearly another reading, which understands Levin~ to seek to disR.lace
tbe traditional oppositions of the inside and the outside, tbe immanent and the
transcendent. The beyond, on this readingy is.-Withintta1ity as its very_disrgpti9fl,
b~_!not just as its negation. As Levinas himself explains, ''This 'beyond' to the
tota1i~ and objective experience is, however, not to be described in a pwcly
negattve fashion. lt is reflected within the totality and hi_$tory. M'i[hin exJ>CJ:i-
ence. "19 Yet on eithe'rreailin"g, infiiiity cannot be reduced to actuality--. ~--
According to Hegel, on the other hand, inftoity must be infinite, and thus
Ethical Significance o/ the Chiffonnier 1 67
embodied in the actuality of what is. Otherwise, the finite would be the limit of
the infinite. 20 Differentiation into the finite then is the necessary condition for the
infinite to be. Ex:teriority, therefore, is the inevitable result of the presence of the
Absolute. The necessary estrangement of the infinite from its self is overcome
through the self-conscious recognition of exteriority as the manifestation of the
Absolute. Nature, in this sense, is conceived as spirit. In Hegel, matter is
purportedly redeemed, by being uplifted into the Hegelian system. Here, we have
Hegel, symbolized as the eagle who struggles to lift "the stone," the dead weight
of the remains, through the help of the machinery of the dialectic. For Derrida,
Hegel's name gives the real nature of bis enterprise away.
His name is so strange. From the eagle it draws imperialor historie power.
Those who still pronounce h.is name like the French (there so~e) are
ludicrous only up to a certain point: the restitution (semanlicallymfalhble for
those who have read him a little-but only a little) of magisterialcoldness and
21
imperturbable seriousness, the eagle caught in ice and frost, g\ass and gel.
What of the remains of Hegel then? In Hegel everything that counts, counts as
part of a greater whole. Only the whole is actual. Truth is the whole, and once
we have finished the Logic, we have the whole truth. We think God's thoughts.
The Relationship between /nfinity
and Materiality in Levinas
For Levinas, the blasphemy that identifies God with the actual and therefore
denies God's otherness, cannot be separated from the violation ofthe heteras more
generally. For according to Levinas, the "redemption" of othemess purportedly
achieved by the Hegelian system is ironically the refusal of th~ Other, or pul
somewhat differently, the condemnation of the Other to the remams. the refuse,
that which does not count.
On any reading we give to Hegel, then, we are always returned to_Derrida's
opening question in Glas, what ofthe remains of Hegel? !he system g1ves us the
truth of the actual. Toe foil presence of Being to itself m Absolute K~owledge
denies actuality to what is left over. Of course, in Hegel, othem~ss remams .Oth~r
to the Absolute, there is no simple "identity" between Meanmg and Bemg m
Hegel. And yet, ultimately, othemess is reduced to the Other of t~ Absol~te, .r
it does not count. Toe complete apprehension of the trnth of Bem~ demes its
otherness to thought. By rendering the truth of Being fully present_m thought,
Hegel ironically forgets the "is" of the copula. A_ccordi_ngto H~1degger,. th;
{?!Setfulness of Being, which forgets what is forgotten, is Hegel s ~at sm.
For HCdegger; the _Other of thought cannot be reduced, then, to thought s Other.
And yet liOwdoes one think Being if it is truly Other to thought? How does _one
pay tribute to the Other which can only be known as the difference from bemgs
and from thought itself?' For Derrida, the "prior" forgotten "is" cannot _bereveale:
asan original anteriority to the dialectic. We can only "think" of Bemg throug
 Ethical Signifuance of the Chi_ffonnier 1 69
68 I The Philosophy of the Limit

its absence, which is why Derrida has been so engaged with Heidegger's later
work. 23 One then cannot remember the "is" as a primordial gathering preceden!
to representational thought. As Derrida explains, "[t]here is does not mean (to
say) exists, remain(s) does not mean (to say) is. The objection belongs to ontology
and is unanswerable. But you can always let-fall-(to the tomb)." 24
But how, then, does one remember the Other, pay tribute to the rest, ifthe
remains are beyond thought, beyond remembrance, and beyond what is there for
us? How does one recover the "matter" that has been left out of the system?
Levinas continually grapples with this question. The "il y a" is ~y~na(.
for the irreducible be.ing of exteriority. The "il y a" is not aJl _o.Qi~! Jor..tbe
thinking subject, and therefore it cannot be conceptualized as the Oth~r to spirit.
The "il y a" resists the imposition of meaning by any representational or concep-
tual scheme. We run up against the "il y a" as the outward clash. lt is this
experience of resistance that indicates the irreducible trace of radical othemess
that remains in any given conceptual system. The "il y a" then, is ~id!_!).9W'
experience, not simply the "outside" to it. Levinas, however, also doeS tot reduce
the "il y a" to our experience of resistance, for that would once again deny the
independence of the exterior. 25
We cannot "know" the "il y a" because we can only know things from withiD
a system of representation. Knowledge, at least ill.the sense of representation of
exteriority, is always a violation of othemess. For Levinas, -~Pre:statiOTl_~
suppression in this sen se. Levinas brings us up against the limits qf representa~on.
We cannot know the "outside," the "beyond," of any system of objectification,
for the world that appears to us is the world represented to an objectifying
consciousness. As a result, there is nothing Piat can be said about_th~~ Y a."
Levinas himself relies on poetic evocation of the WLymo_u~ facele~~~
them_selves. We are in awe of tJie"il Y a"
ignes_''.91lt .of Y?hichthJ!)gs_IIUITTi{est
and more than a bit frightened by the stirrings id rumblings from the "beyond"
There never existed (there will never have existed) any older or more original
"third tenn" that we would have to recall, toward which we would be called to
recall under the aporetic disjunction. This is why what resists the non-dialecti1..a-
ble opposition, what "precedes" it in sorne way, will still bear thc namc of onc
of thc tenns and will maintain a rhetorical relation with the opposition. 1t will
26
be figured, figurable.
Derrida also rejects the dualism that Levinas' own formulation tempts. l .use
the word temptation deliberately. As I have suggested, we can also read Levmas
to displace the traditional dialectical oppositions, exterior and interio~, outsi~e
and inside, mind and matter. Yet Derrida rightfully points us to a. te_ns10nthat is
never completely resolved in Levinas' ow-_text. ~er_~ i~ the te_mptationin
Levinas to tum the excess within history and within totali!)I nto the absolutely
Other to totality. Derrlda hghlights Ibis tendency. Yet for ali of_hi~careto re_~ind
uSth.'ftliere can be no rupture with metaphysics except from w1thm the trad1t1on,
for ali of bis insistence that the excess the remains, are there only as the absence
of what has never been present with'n the system, Derrida still reco~nizes the
absence, so defined by the system, that is the excess to totality. Demda, then,
is by no means simply denying Levinas' aspiraton to heed the beyond, the
remains.
What I want to emphasize here, however, is the ethical impul_seimp_licit.in
Derrida's deconstruction of Levinas. Levinas' objection to Hegel IS that mfimty
C<:lflilot be found in nature because infinity "ii'; Wiihin to_W_i_tyjrr,ano!:_h~~ w__<!Y
thm...~1Jemi: blle' tO Le~inas' anti-Hegelianism, however, the "il Y ~" can
potentially be reduced to the unredeemable Other of the infinite; that wh1ch the
. . . . 1 27 Derrida
mfimte 1s not. Matter comes close to bemg condemned as unho Y.
understands that because of bis temptation to dualism, Levinas risks bemg swept
k the Hegelian system by postu 1atmg "dead" matter as the . Other to .. the
IT<ll: mto
mfimte. More importantly Levinas risks betraymg h"is own proect of a pure
J

which we cannot understand and which is beyond our grasp. We are reminded beterology" which faithfuity heeds the call of otherness. Levinas' fidelity _to
. ,h. t its own potenual
of the world of horror movies, "the Blob," for example, in which we run up lnfintty as Absolute Other m other words, cames w1 m I
against the dead weight of an indifferent "matter" that takes no beed of our puny violence to things to the ~mains. Ironical\y, this potential violence toward the
humanity. The "il y a" resists Hegel's attempt to lift "matter" into the system. remains can also 'be understood as violen ce to Infinity itself as Oth~r for as
Derridaremmds . . - Ab tute Other wh1ch would
us either we tum lnfimty mto so ,
. ' .
reduce Infimty to absolute ldent1ty or we recogmze th I we do not confront the
Derrida's Critique of Levinas' a
Conception of lnfinity ami Matter lnfinite other than as the remains. We cannot tell the difference be~een othe~ess
asthe highest andas the lowest. We do not look forGod other than m the re~s.
Derrida is only too well aware that there is nothing to be said of the "il Y a," lhe,_tgce._of .the beyond lingers as what remains, and only "thei:e." But w ~t
. -- - . present to us for then 11
as the "matter" which remains Other to ali our systems of representation, becaUSC remams beyond of course was never and ,s not now ' ___,
' d other wo,us
to speak of the "matter" would again be an act of appropriation which would would not mark the trace of radical othemess. FQC Dem m
..,.,~, .. . . . . . bl allego- Moreover unless we
read
deny the existence of the remains, as remains, as that which is left over, as tbal Levl
-..--!.~ mess1amsm" 1s mev1ta y an r ' .
Le - ----"" al al s the nsk of the very
which is beyond what has ever been tbere for os. As already suggested, ~- ~~J;g_orically, his philosophy of eth1c Jenry run
resists, as well, the temptation to speak of tbe ..il y a" as 8:fiori&!J131
anteri~t)'. v1~~.gd __
i_!be."_Othem_~.(of the ren:,.ains.
it abh~rs "'be ond" only ..i
as a primordial gatbering of Being before the dialectic. As he remarks. F.QrDerrida, we confront the "matter/' the-remain(s), the Y ' -
 70 1 The Philosophy o/ the Limit

through diffrance; !}le_trace of wh_at differs from representational systelllS---.and

defers indefinitely the achievement of totality. When we attempt to think "exteri- we, m o ,
Ethical Signijicance of the Chiffonnier I

zed if we think that to reach the limit of philosophy is to be silenced ..12 lf

para _Y ther words conclude that because we can only ironically sign for our
U d , does not
---
ority," whether as Infinity or as "matter," we are always walking on a tightrope promise to the remains, we should not sigo at a. . Oem as 1r~ny _ . . ,,
and risking the fall into another mechanism of appropriation. Derrida reminds us stop him from signing for his promise to the remam(s). To read_ mess.iamsm
of exactly what is risked in the fall. allegorically 5 not at ali to deny its force. Toe deadend of the apona, t_heimpasse
to which it takes us, promises through 1ts proh.b. the way out 1t seems
1 1t1on . to
_
Of the remains(s), after ali, there are, always, overlapping each other, two deny. To promise through prohibition is the "action" of allego)'.- Aporec;~ 1~
functions. other words, evokes precisely through its prohibition. Wh~t Demda says_0 ~u
The first assures, guards, assimilates, interiorizes, idealizes, relieves the de Man's use of the word aporia, equally applies to h1s own deconstruct1ve
fall [chute] into the momument. There the fall maintains, embalms, and mum- exercises.
mifies itself, monumemorizes and names itself-falls (lo the tomb (stone))
[tombe]. Therefore, but as a fall, it erects ilself there. Toe word "aporia" recurs often in Paul de Man's last texts: 1 believe ~at_we
would misunderstand it if we tried to hold it to its mosbt_
~1tei:1Imefanth::t
The other-lels the remain(s) fall. Running the risk of coming down to the e-
absence of path a para1ys1s= ore roa dblocks , the immo 1
1 1za11ono 0 8,

same. Falls (to the tomb (stone)}-two times the columns, the waterspouts ' of advancmg,
the impossibility a bamer
blocking the futureM On the
d contrary
hers it
[trombes]-remain(s). 23 ,'
it seems to me that the experience of the aporia, such deh_k~n eocflihe ve,.,:
ih"nki f th
givesorprom1ses_th~_ .1___ ng_9. _e_- ' path provokes
-- t et m mg
deed ~ f
ssible.
The remains then, are what cannot be said. Again to quote Denida, further ,!; """Sbility
___ m __,__!]!lp_f
of what still remains unthinka.bleQ.tU1!_tl_touE:11t, th
at the penultimate sentence ofthe book, ''Toe rest, the remain(s), is unsayable. t'"' --- -" d trned 10 1he madness o e
Toe figures of rationality are profilcu an ou 1
Of course, Levinas is not only aware of the risk of the fall in the attempt to aporetic_J1
speak of the beyond to metaphysics; he knows it to be inevitable. I::_orl.(;vjn~
there is always a difference between my exposure without Je_5t'?!\'C_ to the . h t be reduced to skepticism or to
Derrida's difference from Levmas t en canno ander in
10
which is Saying and to the exposition of the statement of the said in _wbi_cb_ l nihilistic re fu sal. Toe philosophy of the limit does !leav_eh_ u~ "wThemlt
thematize my relation to the Other. - - d h .. d metap ys1cs.
circles before the limit we have reache at t e,_ en O.- h" nse Derrida
We cannot escape representationa1 schemes. Yet, at the same time, we must challetges-StO ieopen the (ltiestion-to thmk ag~m. 1Q_J_i~_se h tral
recognize their inevitable infidelity to radica] othemess. Say!-Og_cance_I~~tse_lf ,,34 t ms us agam and agam, to t e cen
affinns that the "end of metaphystcs re u ' . Id have 11 ihat !he
.as soon as it is said. Any theoretical conception ofthe SayiOi."-then, necessarily --------- - . Levmas wou
pbil?_sophica~que~~~~~ Th~s, 1t_ts not quite ~s n irredeemable crisis rather
fails. Levinas understands that the resolution of his call for the synchronization deconmuc:tton of metaphys1cs y1elds for Demda a
of _!!t~.of the Saying and its -~an~U~tipn_ in f!i_~- ~i'?~
_only yield an
than a gol den opportunity. .
apqria. Yet he insists that even so we must philosophically both affirnt _tbeSay~g 1des us with the golden
Toe reaching of apora for Derrida is precisel_ywha~~: do with their approach
and negate the Saying in the said. For Denida, whai WC confront in the apona opportunity. The difference between the two thmke~ see Derrida does recognize
presented by Levinas is diffrance, the inevitable difference between the Saying
.and the said that can only indicate the beyond allegorically. In other words, one
to the beyond, the excess, the remain(s). As we wtll tt/tbrings us tomouming.
the excess to established reality but only as the absence daLe nas' understanding
can only "speak" of the Saying in the language of ontology. And, as I have also indicated, d epen d"mg on how we. rea vi
lose together. Yet,
f . fi . . . . 1 b . Derrida and Levmas very e - .
Why Derrida' s Critique of Levinas ?-..!.1!._~~- 1!_is pos~1b e ~o nng_ . ll thandoes Levinas the abihty
is Not Nihilistic that bemg s"a.1d,Demda_still questions _more~d,_ca Y ria of the beyond through "
of tra<!_iti_o~!l' philosophical discourse t~ e~oke tbe ~da messianism is also an
But it would be a mistake toread Denida's encounter with Levinas as simply tht_Saying of what cannot ever be smd. For 1;k. '. - - the aporia tself.
the retum of the skeptical critic, the perpetual disrupter. 30 Certainly Derrida does -~- .h h nuse ,mp 1ic11 i 0
allegory because we are left only w1t t .e pro . . th athering of Being in
not refuse the affirmation of the "Saying" as the stand-in for the indication of tbe
excess, the "beyond" more generally, just because tbe Saying cannot be said
As Derrida himself explains: "The promis~ ~rohtbihts e
presence, bemg - even 1ts- con d"1t10n.
Thecond1t1onoft epossi
\m1y and impossibil-
. not
. . ,,36 B t "a promise is
other than in the language of ontology. Denida constantly wams us against "t:he ity of eschatology, the ironic allegory of mess1amsm. u'
sinister ineptitude of the accusari.o!l--that of 'nihilistn. '_'_'31_To_~ _!l~-an aporia. " 37
-~1n
""'-'' g. . n is both "imposs1'ble " and
) to-reach the limit of philosophy, is not oecessarily to be paralyzed. We only The recovery of the excess, the remam(s), the '
 Ethical Signijicance of the Chiffonnier I 73
72 / The Philosophy o/ the Limit

We run into the limit of our narcissism, however, as we realize that, will what
necessary; impossible, and yet necessary-for to fail to pay tribute to the remains
we might, we cannot rewrite the other back into life, remaking history so th~t
would be another violation of the he teros. We would once again den y that which
she is still with us. She is gone. In her very absence we feel the pull of othemess.
cannot be represented. We would refuse it, or more precisely, tum it into refuse
whose existence does not and cannot count. This refusal reinstates the subject Toe materiality of actual history is thus that whichresistshistorical,historicizng
centered system that fails to heed the call of othemess. Derrida remains a materia1 resist.ance.De Man continues: "True mouming' is less deluded. Toe mosl.11
i~t in spite ofhis recognition that there is no adequate metaphysical representatfon cando is to allow for non-comprehensionand enumeratenon-anthropomorph'.c,
of the "matter" he is evoking, and in spite of bis awareness of the inadequg_9f non-elegiac, non-celebratory, non-lyrical, non-poetic, that is ~osay ~~osa1c.:
dualistic fonnulations. Again in speaking of Paul de Man, Derrida relates the or, better, historical modes of language power." Matter of th1ssort, ol.de.r
significance of the word materiality to the philosophy of the limit. than the metaphysical oppositions in which the conceptof matterand matenahst
theories are generally inscribed, 1s, we m1g ht say, "'n
1 memorv" J
of what
There is a theme of "materiality," indeed an original materialism in de Man. precedes these oppositions."
lt concems a "matter" which does not fit the classical philosophical definitions
of metaphysical materialism any more than the sensible representations or the Toe irrevocable absence of the Other resists our rewriting of history. W~ can
images of matter defined by the opposition between the sensible and the remember her but we cannot reca\l her. When we speak her name there is no
intelligible. Matter, a matter without presence and without substance, is what answer. We are ' left only with the memory of her. Yet 1t is
the Oth er as Other
resists these oppositions.J8 . h'
that leaves the "trace" ofherselfwithm us, w1t m ourr emembrance .ofher. There
is no "within me" without this experience of loss. As D::rrida e_~pla_ms, (?~freud
This resistance is what shatters the subject's illusion of sovereignty. Thus . . . ti in which the Other hves on
ss_~ssfu_ll!lo_umin_gi~.v:9I_ve~m1met1c mtenon~. on ----- -, -----iirafWa-s fail
Derrida can say "[ w ]e might have associated it yesterday with death and with "in us-:-But for Derrida, this process of mimet1c mt.enonzat1on ~ 1 Y '
that allusion to 'true "mouming" ' which makes a distinction between pseudo- -..._ h' h t th memory m us cannot be
precisely because the Other's absence, w te pus e 't: . h"
historicity and 'the materiality of actual history.' " 39 For death, too, shatters the 11
revoked. Toe precedence of the Other whose mark continhu,hs.tofbel" ~ul;y'
subject's illusion that he is the meaning-giving center and puts him in touch with . . . . Ir . 11 1t only throug t 1s al ure 10
absence, aborts mtenonzation. omca Y, is Oth A lle 'da
"the materiality of actual history." We confront the materiality of actual histqry " ng the Other as er. s m
recollect the Other that we "succ eed m moum, . t: th other as
not so much through the confrontation with our own death which always re~ remarks "an aborted interiorization is at the same time a respect e he
. beyond us, but instead through the death of Other. Toe starlcness of losi~&..Q.~ ' f ciation wh1ch leaves t
other, a sort of tender rejection, a movement o renun ,,42
yoq love to death throws us a,gainst "irreducible exteriority." other alone, outside, over there, in bis death, outside 0 .f us.l "there" for usas
for Derrida, then, the "il y a," the rest, the e_x~ess,is ~-n.Y h f
The Cal/ to Mourning -- - . _ _ . B ..1 ,, the remams are not t ere or
the l_o~~tht c@S ~} to m_oummg_. ut
oss, . And therefore "true"
Yet it is not death itself that is real to us as the presence of the "outside"-we us. There is always an allegorical dimens1on to mounu 0 g. ' . . th' et of
. . . . . th f the Other remams m e a
do not directly know the death of the Other. We only know the Other's absence. moummg ts 1tself 1mposs1ble. Yet e trace O . B ronically
. . . . th mber the remams. u 1 1
Toe Other's death, in other words, is only there for us as her absence. Thi~_i!i ~ummg. lt 1s t~ moummg, the.n, at w~ re".1e. . rization that allows us to
why Derrida says that death does not literal/y exist.for us, only mouming exist_s: 1t ts the very fatlure of moummg as munetlc mteno the
. . bl .e 'I re of memory to ene 1ose
Ii..is precisely because we cannot. know the death of the Other ..eii:cpt:IS~~ attempt fidelity to the remains. Toe mev1ta e iru u
absence, andas our loss, that we are always in danger of violating othe~- For Other, opens us to the "beyond."
it is our loss that we mourn as we remember the name of the Other. h' h is in-adequate to itself
It is the other as other, the non-totalizable ~e w 1: that which can no
Upoo lhe death oflhe other we are given to memory. and thus to interiorization, and to the same. This trace is int~c:,rired m mou~ng a:i
be ond moumful
since the other, outside us, is now nothing. And with the dark light of this lol!~t._l:,e_j_!lteriorized,
as impos.stbl~Ermner_~g,itmdef ing ~ reappropria- ,-:-
nothing, we leam that the other resists the closure of our interiorizing memory ~..!D.Q!x::-eonstitutingit, ~versmg tt, ~xceedmg ~f y s, in the e:urcises
llon, even in a coded rhetonc or convenuonalsystem trope u
With the nothing of this irrevocable absence, the other appears as other, and
of J)I'Osopopeia,allegory, or elegiac and grieving metonymy
as other for us, upon bis death or at least in the anticipated possibility of a
death, since death coostitutes and makes manifest the limits of a me O! an us take place in a wake. Thus
..f who are- "ooliged to harbar something that is aaj _9iber __ -~m; The remembrance of the "remains" then can best h. h we are called by
Glas engages us in the impossible task of mourning to w te
something owtside of tlwm within tlwm."
 Ethical Significanceof the Chiffonnier 1 75
74 f The Philosophy of the Limit

othemess. Hegel's philosophy of history in which everything that is to count as recurrent difference between a present and its presence,does not resusciiatea.
w_hich_hadbeen present~jt_engag:esthe future...
~! __
Spirit is re-collected into the system is disrupted by the Other that cannot be fully
interiorized. There is an othemess beyond Spirit which cannot be reduced to Toe future, the beyond, is revealed in the remembrance of the remains; ~e ch~ce
Spirit's Other. And it is precisely the trace of othemess that cannot be recouped for the future, in other words, is preserved in the work of. ~ou~mg .w~ich
that is the defective comerstone of the entire Hegelian system. It is this defective ironica11yremembers the remains through the experience ofthe hm~tof.mteno~za-
comerstone that both de Man and Derrida understand as allegory. Hegel's philoso- tion through the verv finitude of memory tht makes "true" moummg 1mpossible,
phy then, reread as allegory, "re-read from the most deficient and efficienl ., d l ,,4\t
and yet so necessary. ''This work of mouming is calle -g as
comerstone, is said to be--over its dead body-an allegory of disjunction.'"'
Such an allegory of disjunction has as its object not the whole, Hegel's object, The Significance of the Figure of Woman
but the morse!, which has been disjoined from the system. "The object of the and Its Relation to the Figure of the Chiffonnier
present work, and its style too, is the morse/. ,,.i.~ In place of the book that tells us
the whole truth and the truth of the whole, we have the text that testifies to what And whose work is it to moum? In Glas Antigone stands in as th~ ~~ry figu:
has been spat out, the morsel. called to mouming by the law of singularity and by her respons1b1hty to t
remain(s). It is the Woman who moums.
The object of the present piece of work (ouvrage) (code of the dressmaker)
Toe two functions of (the) bunill ) re1evethe dead man of.. his
. , ( pace , death.
.
is what remains of a bite, asure death [une morsure], in the throat {gorge]; the
bit [mors]. spare him from being destroyed-eaten-by matter, nature,the spmt s ~mg:
Insofar as it cannot, naturally, bind (band) itself (erect). outside-self but
' .
also by the probably cannibal violence of the surv1v~rs
. tiallY,thewo mens' sincethey, as guard1ans
Graft itself at the very most, that it can still do. unconsciousdestres. That1s,essen . al lbe
Toe graft that sews itself [se coud], the substitution ofthe supplementary of (the) burial (place) and the family, are alwaysin a situationof surv1v . lf
sewing, "constitutes" the text. Its necessary heterogeneity, its intenninable law of singularity (divine, feminine, family, natura1,nocturnal)pro~ts itse l
network of listening lines en alfo, in bello, that compels reckoning with the as it were from itself against itself. And in the same stroke [du meme co:f
insert, the patch.-46 against the other Iaw'. the human (virile, political, spiritual,diumal) law.
Toe very work.of mouming
Derrida's graft or patchwork bears a family resemblance to Benjamin's and Derrida joins Woman in her work o f moummg. .
Adomo's uncovering of constellations. The singularity of the scraps pieced dernands her rebellion against Hegelian Aujhebung that would deny th;~n::~~
together in the patchwork is preserved in the outline of the act of grafting, or .da bers that the mother comes 1u:1
Derridafollows her law. Dem remero 'da does not say of
sewing; "S~wjng lco~ture] #J.en betrays.~.~!hibits what it should hide, dissimula constituted by her. Toe subject only follows the Other. ~m -.-- r
:+--eras \Yhat it signals.',4 7 Toe part is not Iost in the whoie"."Toe remain(s) are oot himi.elf "I ,un" r;., .. :~, he saysjnsteai;iJ..fQll.ow" (ie suis). lf there is a mase u me
- -- -~-~ brance that marks the
graspedas simply the expression of a greater system. Yet the remain(s) cannot certainty it lies in that knowledge, m that act o remem
be known in and of themselves. There can be no direct "perception" of exteriority pteeedence of the Other; 1 follow.
or of singularity. The very word, remain(s), or morsel, implies a greater configu oth is behind--all that I follow,
lam(following)themother. Thetext. Toem er b she always
ration from which it has been left over or bitten off. As Walter Benjamin would
acknowledge, things do not go straight to heaven. am, do, seem-the mother follows. As she followsb~ sou::~he
1 1
will have
And yet in the wake for the dissolution of the Hegelian system, we also bet:
survives--a future that will never have. 0 presenta ~w he survivesthe
engendered, attending, impassive, fascmatmgand ~vo g, s
the promise of the resurrection of the remain(s); for resurrection is the pronuse nterring of the one whose death she has foreseen.
of a wak:e. For Derrida the promise of the future inherent in the allego!)' of
messianism is only "there" as the trace of othemess that marks the impossibility . th nsiststhattheybeprotected.
TheMothergentlygatherstheremam(s)toge er,i W ffered to us in
of true mouming. Yet we also encounter the impossibility of "true mouming" H~ we are reminded of ~?ther great fig~re ~ ~is
0
a1so devoted to
only in our remembrance of the remains. As we remember we also reswrect F1nnegans Wake ~2 Anna L1v1a Plurabelle ( ALP' ). the she has

salvagmg ' ch d =tches together scraps
Memory stays with traces, in order to ')>reserve" them, but traces of a past that the remains. As she st1t es an r- ~, o feminizes the
salvaged she 1s. . th r " 1be Mother, f'U.,I ,
has never been present, traces which themselves oever occupy the fonD of "sewmg her dream toge e . sorting through
presence and always remain, as it were, to come-come from tbe future, from figureof the Chiffonnier. Like the ragpicker she spends ::: Benjamin's rag
tbe to come. ~es~on, which is always the f~_element of w~ ... a the refuse. She is always tumed toward the sewer. But
- - ........ ---.
 Ethical Significance of the Chiffonnier f 77
76 I The Philosophy of the Limit

picker she has little about her of the destructive character 3 (although Derrida name(s) that Derrida inscribes in the text of Glas? "The mother's name wouid
..
himself is aJways careful to remind us of the fearsome aspects of the phallic be----commonly-the name of a plant or flower. . 60

mother). She gets on with her daily project of salvation not just far the sake of In Gl,as, she is inscribed in the name of Jean Genet, the blossommg fto~er ..
clearing away the false positivity of the bourgeois world. She is a different kind Alongside Hegel's sanctimonious statements about the place of ~ornan m h1s
of gravedigger. She scrapes through the debris and pieces together the remains system, we have in the second column pieces of Ge~et's texts .wh1chpuil apart
as an act of care. She is tireless and fearless in her effort to be faithful to the the very erection of feminine identity that ~egel tnes .s~ pahently to sec~~~
remains. She gives her tribute to singularity through her persistence in mourning. Hlene Cixous and Catherine Clment exp)am the femmme power of Genet
Derrida gently mimics ALP's hen-like scraping through the debris. He writes, texts.
"And l scrape [racle] the bottom, hook onto stones and algae there that l lift up Thus what is inscribed under Jean Genet's name, in the movement of a text
in order to set them down on the ground while the water quickly falls back from that divides itself, pulis itselfto pieces, dismembersitself, reg"?ups,remembe:
the mouth. AnclI begin again to scrape [raclerJ, to scratch, to dredge the bottom itself, is a proliferating. maternal femininily. A phantasm1cmeld of me ,
of the sea, the mother [mer]."~ Derrida sews together bis "reading effect"- males gentlemen, monarchs, princes, orphans, Howers, mothers, b7.ts.
1
which is how Derrida refers to Glas----as a gift to her, to open up another way of gravit;tes about a wonderful "sun of energy'-love,-that bombardsand ~ ~
reading-Woman. Not, however, so he can give us that reading, but instead so tegrates these ephemeral amorous anomaliesso thal they can be recompo m
61
that Woman can finally be heard when she speaks for herself and in her own other bodies for new passions.
name. By opening up another way of reading Woman, Derrida wants to make it Toe "double klang" effect of the two columns in Glas makes us distance
clear that he is not trying to establish her proper place. 'de f the other As we read Glas.
ourselves as we read one column fro m the s1 o .
Such recognition should not make of either the truth value or femininity an we practi~e, with Derrida, action at a distance. Derrida, h?,wev~~ ~es s1des.
object of knowledge (at stake are the nonns of knowJedge and knowJedge as He views Hegel from the side of Genet, the name of the femmme. Perh.aps
oorm); still less should it make of them a place to inhabit, a home. It should there has never been a more careful deconstruction of Hegel's phallogocentnsm
. , Gl De 'da painstakingly shows us that
rather permit the invention of an other inscription, one very old and very new, than that given to us in Demda s as. m h be
a displacement of bod.iesand places that is quite different. 55 Woman in He el is simply man's Other, her distance reduced, so tha~ s e can
asped asan ~biect in the man's field of vision. She is lost to herself1n the namthe,
Derrida, in other words, is faithful to Woman in bis remembrance of her as cr J h per place W e see her from
of the system. She is class1fied, given er pro . th othe on
more than just the successful interiorization of the Other in bimself. Derrida does I
De c1a focuses our attentlon on e m r,
not simply conjure her up, instead, he beeds her call. "1 can myself my mother perspective of the man on Y m .re ,,62 th es her otherness by
Woman Hls , however ' is the "aurat1c gaze at preserv ,, f
who calls herself (in) me."~ It is the Other that Ieaves within us the trace that we the "memory o a
respecting her distance, and that by so domg conjures up . .rrored
recall. Here again, Derrida is emphasizing the precedence of the Other to tbe . . by man as merely h1s Other, m1
different world, in wh1ch she IS not seen . . f k' as a forrn of
subject. The subject only comes to himself by recalling Her. Subjectivity is not . . . de.fies the orgaruzat1on o Ioo 1~g __ _
constituted in the present, nor does the subject exist as a presence in and for
m h1s eyes. The_~!!!'atic gaze__ - - . -~ .._ on1rto classify fier. The
mastery. De m'da doesno t attempt to see throUy, in:: m e
T ---- th- -b cairtookba.Clc
- The
itself. Instead the subject recollects himself in the act of remembrance of the Oth . all ed to be . - heicHStanceprecise1y so al s e - . .
Other in himself; an Other, however, that is beyond bis memory, since she er 1s ow - ... ID - ," ----ora1 -shCooth comes--before andremains
mother's distance from man IS tempo . that she symbolizes
remains other. In spite of the limit of memory, the remembrance of things past after (Not Iiterally, although she well might, but IR the ......mother 6"olToe
is the story of the subject, the only one he can tell. s7 For Derrida, the subject . A De da reminds us "Remam(s,---,..-
the site of regeneratlon.) s m . ' ce of time the difference
only becomes a self in and through the possibility of mourning.
distance of the mother opens up the diachromc.:-:n:e remains guards. Of
We know, we knew, we remembe,-.before the death of the lo ved one-that that triggers memory and calls us to moum w1 r
being-in-me or being~in-usis constituted out of the possibility of mourning. course, this story of the mother is itself an allegory.
We are only ourselves from the perspective of this knowledge that is older than
ourse)ves; and this is why I say that we begin by recalling this to ourselves: The Parody of Dialogism
we come to ourselves through tbe memory of possible mourning. sa an.d the Refusal of Castration
peakfrom the side of the molher is also
Through the act of remembrance of the Other in himself, Derrida refuses to But to proceed with the allegory' to s hr) 1bcre may be no otber..voicc"
forget the mother's name. And wbat is the motber's name or more precisely her
to speak from the side ofthe more (mire. me
..~--------------------------~------~~
78 I The Philosophy of the Limit
that comes so close to echoing the call of the remains. To take 00 the name of
the Other, to.recall th~ ~ace of the Other in one's self, to be dialogical, is to
refuse castrat1on, the ng1d erection of sexual difference in the unconscious thal
68
.Jacq~es La~an re~ers to as (;a. Through the practice of writing two texts at once,
Demda skirts bemg labeled either this or that. He deties castration in the name
of Gent.
Ifl write two texts at once, you will not be able to castrate me. If J delioeariz.e,
I _e~. But at the same time I divide my act and my desire. 1-mark(s) the
div1s10n,and always escaping you, l simulate unceasingly and take my pleasure
nowhere. 1 castrate myself-1 remain(s) myself thus--and I "play at coming"
Ue ''joue a jouir"].
Finally a1most.66
By writing two texts, Derrida is always talking to the Other in himself. But bis
dial~gism is itself a parody because the Other he speaks to is never "there." lbe
what he. is, ~=:ho
subJect of Glas moums for himself as he mourns for the one who has madehim
one i~ before him, the one whose passing Ieaves its mar:k.
Toe s~bJect is there for h1mself only in and through the dialogue with the Other
+ through the work of mouming that practices mimetic persistence and the aurattc
:ho is never. ful,ly present an~, y~t, who calls him to mouming by her ver
bse?ce; Derrida s parody of d1alog1sm, however, exposes the Iie of 9a andSa.
Derri~ s phrase for Hegel's Absolute Knowledge, that would reduce the Otber
to ~ne s own thoughts, orto what is absolutely exterior to the self-constituted
subect
J
"Sa Ioves r._...a
"m th at each sets Woman's place in stone through an appeal
to an ~nshakable system and to the truth of the whole. 61 Yet the refusal of
cas~uon as an unshakable truth, at least in the system of gender bierarchy
;,1 des~bed by Lacan, should not be understood as the tuming away from the social
reality that perpetuates the gender hierarchy through castration. Such a rejection
would deny the violation to Woman that has been done in order to secure her
place. What is denied is the ..there is" that refuses the remain(s) to the rigid
syste~ of gender identity. ''There-is'_' no _Wtial ~ti 9 n of gen~ thaf.___.guJ
effecbv~ly and once and for ali block the chance for a nCW ci10IC0gra_m1_y
of
~~ual difference. The possibility of a choreography otber than the one practiccd
m our .current system of gender identity cannot, then, be wiped out. 1be dreaJD
?f .~~erent choreography is ''there" in the deconstruction of the ''there is"
1mphc1t m the erection of the ('a.
That does not mean (to say) that there is no castration, but that this there doeS
not take place Thereis that one cannot cut througb to a decision between tbe
two contrary and recognized functions of the fetish any more than bctween the
thing itself and its supplement. Any more than t:ie'tween lhe sexes. 61
. Th~ fall of Hegel, which is alsothe fall of tb.e remain(s) from the eagle's talons,
is not JUStcause for mouming, but for celebration (particularly if ooe is a woman).
Hegel's "fall" cannot be separated from. the fall of tbe erectioo of tbe 9a.
Ethical Significance of the Chiffonnier I 79
Jeltombe, Ufall(s), Utomb. The play of theantherection by which I waken
to, embark on [nais d], my name supposes that, in more than one stroke [coup],
I crush [foule] sorne flowers and clear [{raye] the virgin thicket of erianthus
toward the primitive scene, that I fa1sify and reap [fauche) the genealogy ....
... the Father's dwelling. 611
Toe clamor of the fall of <;a!Sa unleashes the many voices that have been
silenced by the law which identifies proper speech with the name of the father.
Glas does not try to suppress the noise. Toe phallus falls and with its fall goes
its claim that its turgidity elects it as the transcendental signifier. Here we find
the ultimate embarrassment to the sovereign subject, for as he falls, he finds that
70
he's notas in control as he likes to think.
The Problem with Walter Benjamin' s
Conception qJ Mimesis
By evoking the figure of the Chijfonnier, I am suggesting that Derrida is dee~ly
sympathetic with Walter Benjamin's "infinite task" of salvaging the rema:a~
gaze. And, indeed, I am suggesting that such a sympathy exists. Yet, in ~pite.f
his sympathy, Qerrida is obviously _waryof spellingout a conceptioD-.of wmc~is,
aseither Benjamin of Adorno docs. as a_gQn_:v_iQ.latiYe..lJJPIQ!!f.bJQ ..!ttJ:.JCJPau_1s.
Denida doeS-OOf so much te11 us about mimesis and the auratic gaze as he
')>ractices" them; and there is no betterexampleofhis practice than bis deconstruc-
tion of Hegel's phallogocentrism from the side of the mother. "l do what Ido not
11
say, almost, 1 ne ver say what I do. "
And yet how do we account for bis wariness of mimesis? In Walter BenJanun
the mimetic capacity signals the ability of human beings to respond72 to pa~~
of similarity in nature and to produce such similarities in retum. BenJanun
tracesthe imitation of nature to the recognition of natUre's greaterforce as the
constitutive Other. Mimesis does not aim to control nature, but rather seeks to
imita.tethe pattems of similarity in nature as a fonnof paying tribute~ her For
Benjamn, as for Adorno mimesis yields a fonn ofknowledge that differs from
73
wbat we usually think of as knowledge of the object. As I arguedin th_efi~t
chapter, for Adorno the object of mimesis is not just there for the subject. Mimebc
capacity does not attempt to identify the object as comprehensible ~gh the
supposition of this or that classifi.cation. Toe human being who exerci~ her
mimettc ability is not acting as a meaning-giving center; she is respondi_ngto
wbat is given to her. In constellations, Adorno preserves what is valued m.the
ob" d is nceptuahza
. ~ect-realism--the realization that the object remams beyon 1 co .
bons without demanding sorne conception of direct access to the ob~t.
For Benjamin, this mimetic capacity, exercised through constellanon~,.:
ahnostbeen eclipsed by the rise of calculative thinking or what A~o re e the
to as "instrumental rationality. " 74 But Benjamin adds an analys,s of bow
............................................. ----------~~~~
80 I The Philosophy of the Limit Ethical Significance of the Chi![onnier I 81

mimetic capacity itself carries within its own potential danger for decay precisely only to displace the syntactic arrangement around a real or sham physical wound
,m
because it is open to othemess and therefore to transforrnation as it mimics its that draws anention to and makes the other be f orgotten.
envimnment. But in spite of the potential for its own eclipse, mimesis still
The Ethics of "Deconstruction"
promises a forro of knowledge different from the one offered to us by the logic
of identity whose sole business is to identify and to classify. The mimetic capacity, as a Practice of Reading
as we saw in the first chapter, is emphatic. Mimesis identifies with, rather I must begin this section with a reminder of the Introduction. put "~eco~struc
than identifies as. Derrida does not simply reject Benjamn' s understanding of tion" in quotation marks to indicate that I do not accept th1s des1gn~~1onof
mimesis, but he does give it a new twist. Derrida's work and that because of my disagreement, I have relabeled decon-
For Derrida, mimesis is a parodie strategy. Indeed, Glas is certainly one of struction" the philosoph~ of the limit. Even so, 1 do not eliminate the w~rd ~rom
the great satiric parodies of "ttie humanist trdition, and it continually "mimics" this section altogether because "deconstruction" has come ~o have ~- htstoncal,
mimesis. Toe problem for Derrida with even the Benjaminian understanding of .mstitut1onal1zed
. . . . .d .
meanmg that I ent16 es a ce am
rt groop ofhterary cnt1cs. But let
. th" al
mimesis is that, in spite of its promise of a different kind of knowledge, the vecy me tum to how "deconstruction," by its practitioners, has mterpreted the e . ,c ,,
notion of mimesis as a theoretical capacity still relies on the traditional, dualistic . .
s1gmficance .
of readmg. E ven .m th'1spracttce,
the vetvi
work of"deconstruct1on,
.sed . .
oppositions between mind and matter, and more importantly on the presence of as a practice of reading embodies the prom1se--even t"f only prom1
.
irom-
a nature that is just ''there." Mimesis, in other words, lives dangerously close in ' 1 d ot impose 1tselfupon the
cally-to be faithful to othemess. ~?nstruc~ ?~.-~s.~--- . estiVC
its recognition of the "there is" to the inevitable perpetuation of myth. (Benjamn text it reads In this sense "deconstructiOrf""IS..not cnt1c1sm. DerrtdlfIBsugg
himself was very aware of this danger.) As Derrida explains: ~~~. the
~s re1ati~nshiP between "deconstruction" and the text
.. ..,_ structionmay be at work, in
There, account taken of the bit and the sublingual slaver, of caesura and As we have seen, the very cond1uono a uo.con ted
agglutination, there is no sign, no tangue, no narne, and above ali no pnm.itive the work within the system to be deconstructed; it may already .be \oca
word" in the Cratylean sense; nor any more sorne ttanscendental privilege for
'
there already at work not at the center but m

an excentriccenter m .a .comer
.
' ' u
whose eccentricity assures the sohd concentra on
of the system, paruc1patmg
One
an elementary couple where the analytical regression should finally stop, nor
even, since no being [tant] or sense is represented there, a mim(s)eme [mi- in the construction of what it at the same time threatens 1~ ~onstruct.
. then be inclined to reach th1s
nnght . deconstrucnon1snotan opera-
. conc1us1on.
mme]. Remains that: the problem of mimesis must be re-elaborated here, 711

beyond the opposition of nature and law, of the motivated and the arbitral)', tion that supervenes afterwards, from the outside, one fine day.
7
ali the ontological couples that have rendered it, with the Cratylus, illegible. ~
ForallofDerrida'shesitancyhere-he Ieaves how he stands on this the interpreta
subiect
. . th "d truction" does not eaveI J
Yet Derrida respects the attitude toward things that lets things address us rathet t10nopen--1t ,s only too clear at ec;Qns. . . -the individual,
than the other way around. 1don't believe it at ali, but if I were to believe that to do_wW1!_he~Xt_~l}I!!:i).~._W_Quld.- lnterp~ta~on tS:~: s:a;:Jous error, then,
a proposition acquired its pertinence by miming its subject matter and letting the or for that matter the community, playing wtth 1~elf: . nal"zed as advocating
toread "deconstruction," as its meaning has been msututto 1 'mmands us in
thing speak (and the thing here is Francis Ponge), I would justify my attack in
the name of mimesis. " 16 the position that there is no text that guides us or ~ 0 :::s:~ !t~
1
text remains
Toe problem, of course, with any attempt to Iet the thing speak directly in it<i OUtreadings. Of course, a precise statement of the 'nh nt in speaking
1
language is that it is always blocked by the imposition of our language, OUf problematical in "deconstruction" because of ~e dilemma e~illis Miller has
1
meaning. We are always translating, but without the assurance of the presence of "thereness" more generally. What is heeded m th~ tex\as tbe text "actoally"
of the messianic language that makes translation possible. Yet Derrida continually pointed out is not the "thereness" of the text nor JUSt w at dec trucnon"
' . . .. "For" ons ,
explores strategies that try to displace the subject who imposes bis meaning on says. Yet when one is reading, one 1sreadmg some-thingf.th tter" allegoriud
however, "the thing" that one is rea d.mg is the "heart.
o e ma
. sage As Miller
the world around him. What obsesses Derrida is not what he says, but what can
be said, given our inevitable placement in language and into pregiven representa- in the text. Toe word "thing," here, echoes the He1deggenan 11
tional systems. His strategies are a promise to the thing, to the remains, to explains:
othemess, he knows he can't fulfiil-the promise to let the thing speak.. And yet . ''the realthing" or "the righ1
The thing is what James calls, in two story ntles,. death as "'the distinguished
he promises, and attempts fidelity to othemess through the constant disptacement thing" or what he hailed at the_JD?,mentof ~s . Si nponge!Signsponge
of representational systems that attempt the capture of the Other ... Here again I thing at last." Heidegger in "Das Dmg and Demda 10 ..Jiething .. To .. pul'
do nothing other, can do nothing otber, than cite, as perhapsyou have just seen: have sought to define the elusive residuum we name

l
 82 I The Philosophy of the Limit
things" is, it may be, to enter into a transaction with that real thing behind the
human things narrated and to respond toan obscure demand for narration made
by that "real lhing." The "thing" demands that it be respected by being put in
words, so becoming a doing which may do olher "things" in its tum, as James
says. 79
!he ethics of reading practiced by "deconstruction" commands us to heed "things"
m the sense defined by Miller.
Nor is the word command being used capriciously. Again to guate Miller:
. llu~ elhicaJ moment in lhe acl of reading, then, if there is one, faces in two
direct1ons. On !he one hand it is a response to something. responsible to it,
responsive to it, respectful of il. In any ethical moment there is an imperative,
sorne "l must" or Ich kann nicht anders. 1 must do this. I cannot do otherwise.
If the response is no! one of necessity, grounded in sorne "mus!," if it is a
fr~m to do what one likes, for example to make a literary text mean what
one likes, then it is not ethical, as when we say, "That isn 't ethicaJ." On !he
other hand, the ethical moment in reading leads to an act. It enters into the
social, institutional, political realms, for example in what the teacher says to
the class or in what the critic writes. 80
W~ can now see how the very practice of deconstruction, conceived as a
prac~1ce~f read~ng, can be interpreted asan. exerciie of res_pon~fbility to_otheress.
Demda 1s obv10usly profoundly concerrid witti- the institutional structures in
whi_c~ academic discourse takes place. He distinguishes bis own philosophical
pos1t1on from other forms of critique because it is committed to the examinatioo
of poli tic al institutions as well as of texts. But alongside bis interest in the politics
of interpretation he has also shown an "individual" ethical commitment to take
respo~sibility both for the Other and for his own signature as he engages with
and stgns for the Other. Derrida, in other words, unden.tands both directions of
the ethical moment of reading. He signs for the role he has played in reading tbe
Other. _The very recognition of the precedence of the Other, also means tbat tbe
Other IS dependent on me. Derrida takes responsibility for who he makes tbe
Other become when he reads her.
His call to responsibility, then, should not be reduced to an idiosyncratic
co~tment that might well be in conflict with bis Iarger philosophical project
whtch I have renamed the philosophy of the limit. Toe reading of the phil~Y
of_tJieJimit that denies or at the very least down_plays its ethical-~-~-~re (?~
th_an;not stems from an interpretation of the relationslii,between ~ei4_egger and
Demda. On that reading the deconstruction of the metaphyscs of humanism
begun by Heidegger and taken to its radical conclusion by Derrida effaces tbe
ethical even as I have defined it as the aspiration to a nonviolent relationship to
othemess. Of course, the question of Heidegger and ethics is itself very complex
and much debated. 81 But I want to continue to focus on tbe relationship oftbe
philosophy of the limit to the ethical by retumiog to Derrida' s remarkable essaY
on Levinas' philosophy of alterity.
1
Ethical Signijicanceof the Chiffonnier f 83
The Return to Ethical Signi.ficance
of Derrida's lnterpretation of Levinas
2
As I have already suggested, Derrida's essay Violence anti Me1aphysicl
should not be read as a fundamental disagreement with Levinas' project because
Derrida demonstrates that one cannot speak of the ethical as the beyond to
metaphysics other than in the language of ontology. Derrida, in other words.
does.n.Qt_i:efuse
Levinas' project because he recognizes that it is a logical "impossi-
bility." He knWs that Levinas recognizes that the trace of the Other, the "be-
yond." is the unthinkable. lndeed, he explicitly acknowledges Levinas' own
awareness of the impossibility of bis project.
1t is true that Ethics, in Levinas' sense, is an E1hicswithout law and without
concept, which maintains its non-violen! purity only beforebeing detennined
as concepts and Iaws. This is not an objection: Jet us not forget that Levinas
does not seek to propase ]aws or mora1rules, does not seek to de1enninea
morality, but rather the essence of !he ethical relation in general.s,
lnstead of justas a critique, I read Derrida's essay also asan interpretation of
Levinas that preserves the ethical relationship without reducing it to the mere
Other of Ontology, and therefore as identical, by demonstrating that the ethical
relation can only be preserved as Other if it is left as the unsayable. The affinnation
ofLevinas project, in other words, demands that we mark the ethical relationship
as the limit of the possible and, therefore, as the Saying rather than as the said.
'll_!~s~~ility of the ethical Hes in its impossibility; otherwise, the ethical w~uld
?t-.n:duced-.to_tb~ !\Ctual, to the totality of what is. This-paradoxical fonnulation,
m other words, is necessary if we are to respect the othemess of the Other.
I~ this insistence on the disjuncture between the ethical and the actual, w_e ai:e
agam retumed to the "break." with Hegel. In Hegel, as we have seen, eth1~s is
~ible because the ethical relationship of mutual recognition hasbeen real!zed
m the actual. Por Hegel, if the ethical had not been realizedin the actual, _the
aspiration to ethics would always be a source of dissatisfaction in that th~ ethical
would be sought after and yet unrealizable. Of course, Levin8:5~ogm~s that
lo render the ethical beyond the actual is to Ieave us with the d1ssat1~f~t1onthat
led Hegel to reject Kantian morality. W..ecan never meet our respon~bi_hty the
~r Our responsibility to the Other is absolute. But for Levinas, this mevitable
~tis~~ction is _sublime. As Levinas explains:
I can never have enough in my relation to God, for he a1waysex~ my
measure, remains incommensurate wilh my desire. In this sense, our desrrefor
Godis without end or term: it is intenninable and infinitebecauseGod revea1s
himse!fas absence rather than presence. Love is the society of God andman;
but man is happier, for he has God as company whereas God has man.
Furthermore, when we say that God cannot satisfy man's desire, we must add
that the nonsatisfaction is itself sublime!s,
 84 I The Philosophy of the Limit
. Dei:nda ~s both "suspici~us" of Levinas' acceptance of the inevitability of
d1s~at:J.sfact10nand of the nght-wing Hegelian's complacency that reduces tbe
ethtcal to the actual and, therefore, at least on the conventional reading of Hegel
to the perpetuation of o~der. On Derrida's reading, the Saying of the ethical
the be.yond to .metaphys1cs can only be indicated as the difference that disrupts
Heg~han totahty. But by the impossible we should not understand an absolute
bamer, for to erect such a barrier would be again to mistakenly attempt closure.
Nor should the impossible simply be understood as the not possible, a fonnulatioo
t
:~ds..
that.would also reduce the ethical to the mere Other of the same. As Derrida
usJ.tl!~j_!!].possible occurs at ev~ .mom1:;_~t.''There is" disruptiOO of
s ~:ty The Other cann~t be com~letely ehmmated m any g_iy~Ilrepr:e_sen~~Q._nal
i Y m: ~e Other surv~ves: In thts sense, the ethical is a necessity as well asan
mposs1b1hty-a necess1ty m that the remain(s) cannot totally be evaded even if
:e~eed ~ot_~ heed~. Toe Other remain(s): ~':'..cAI~ t() resP9.m>JJ2Hityl!_p_rlor
.s.ubject1y1ty,pnor to .our_choice. We may not answer but we are oot free
to simply silence the call. ., - ' symmetrical to me is to respect the being of the Other. Even a "transcendental"
Robert Bemasconi has offered a reading of Derrida's essay on Levinas similar
to the one I have given here.
Though the ethical relation as described by Levinas is thought both by Iogic
an~ by deconstru~tiont~ be_impossible,logic dj_smissestts "Qriginal ethic:s,"
~hil~ deconstructionma_mtainsit by insisting on_itsimpossibility. Deconstruc-
~on e~ to a ~n ex.tentdoes in "Violence ami Metaphysics"-give a
~go~ousreadmg of Levmas which preserves the ethica1relatioo witbout reduc-
mg 1t ~o the o~r .~ontol~gy. But the insistence that a [conception] of
the ethical relation IS 1mposs1ble-unthinkable-unsayable might be said to
prese~e the thought of the ethical relation (a thought which is not yet also
prachce) rather than the ethical relation itself. 85
Bemasconi goes on to say that "lt]he issue ... is whether deconstruction
enacts the ethical relation.',86 1 agree with Bernasconi that this is tbe issue. 1be
pu~se of this chapter is to show how one can give an affinnative answer to tbe
ques~1on ~f whether or not the philosophy of the Iimit aspires to enact the etbical
relattons?1p because, of course, the ethical relation canoot be enacted in the sense
of .actualized but only adhered to as an aspiration. By making th.e claim that tbe
]'h1l~ophy of ~e l~t d':s to enact the ethical relation, I,am goll_)_g_~~
Demda who .. m sptte of bts brifant salvaging of Levinas' pro~t remains wary
o~the very wo~ "ethical." 1 would trace Derrida's wariness l~fettle~and
Nietzsche;. to Heidegger,~ we have seen, because the questioo of ethics remains
entra~ m the metaphys1cs ofhumanism, and to Nietzsche because tbe morality
pos1ttve sys~m of rul~ that prescribe human beings circumscribes tbe possibili-
ttes o~ aesthebc re-creatton. Yet in spite of Derrida's own wariness, I would
h1s engagement with Levinas as in the service of the cthical relation. Tbe
philosophy of the limit clearly guards the trace of othemessthat resists assimila-
l
Ethical Significance of the Chiffonnier I 85
tion and reduction to the selfsame while deconstructing Levinas' specific fonnula-
tion of the ethical as the beyond to metaphysics and therefore as a radical rejection
of Heidegger. lndeed, 1 read Derrida to wam Levinas against the potential
violence to othemess inherent in bis own understanding of the ethical, a warning
that itself can be understood to be inspired by an ethical desire, as muchas it can
be read to embody the "truth" that there is no beyond-the-undecidable. As Derrida
explains: "There is no beyond-the-undecidable, but this beyond nevertheless
remains to be thought from this 'somewhat more reliable point of "reference" ';
and one can only be involved there in a promise, givingone's word on the subject,
even if one denies it by signing ironically.''
87
We can approach Derrida's warning to Levinas from two directions. First,
Derrida shows us that there can and should not be an absolute priority of Levinas'
lnfinity over and against Heidegger's Being. ~vinas' ethical philosophy c~_not,
in other words, just displace Heidegger's ontolgiCalpoject. We saw why in the
as
J!lSfcapter:--tO"isl)Ccfffi"eOilier other and, therefore, as phenomenologically
ethics presupposes respect for the phenomena of the "being" of the Other. Derrida
~hi?WSus that Levinas' ethical philosophy works __ within rather than just against
p_!!~"Or~_rl~ofogy.
-As Derrida explains: "For without the pbenomenon o other as
other iio respe:t would be possible. The phenomenon of respect supposes the
respect of phenomenality. And ethics, phenomenology.';118
In speaking of Husserl's project, Derrida suggests that it is this move to
recognize the Other as ego, this strange symmetry, that prevents Levinas' project
from degenerating into the worst kind of violence.
lf the other were not recognized as a transcendentalalter ego, it would be
entirely in the world and not, as ego, the origin of the world. To refuse to see
in it an ego in this sense is, within the ethical order, the very gesture of ali
violence. If the other was not recognized as ego, its entice alterity would
collapse.'"
Etbical asymmetry, then, must operate within phenomenological "symmetry"
if it is to be ethical.
The Feminist Critique of levinas and lts
Relationship to De"ida's lntervention into Lacan
We can now understand the full significance ofthe intersection between Derri-
da's deconstructive intervention into Levinas, particularly in bis insistence on
the recognition of phenomenological symmetry of the Other as ego, arnl the
Undennining of the rigid gender hierary.b)'.....as.desf-_~- tbe-~Qf'
~an-.-s aaa1ys1s:women;asindividual egos, are erasedlD the 'psych1-
cal fantasy of Woman." Toe "psychical fantasyof Woman" ~icates the ~ss
90
by which Woman is not only culturally devalorized underpatnarchy, but IS also
86 I The Philosophy of the Limit Ethical Significance ofthe Chiffonnier I 87

projected into two types, the good and the bad. Toe idealization of the one is thc the light, as its negative. Toe feminineis apprehendednot in relationto itself,
flip side of the denigration of the other. For Lacan, the "psychical fantasy of but from the point of view of man, and through a purely erotic s1ra1egy,a
Woman" is the very condition for the masculine ego, which depends on the strategymoreover which is dictated by masculinepleasureUouissance), even
Woman mirroring him back to himself so he can achieve the illusion of consoli- if man does not recognize to what limiteddegreehis own eroticintentionsand
dated identity. Masculine ego identity thus tums on the gender hierarchy, which geslUresare elhical.92
relegates Woman to this projected fantasy. Yet, as we have seen, it is precisely the As we saw in the Iast chapter, Simone de Beauvoir, in her preface to The
inevitability of gender hierarchy that Derrida deconstructs. Derrida reinterprets Second Sex,93 was the first feminist to criticize Levinas for perpetuating the
Lacan's insight into what is perceived as the inability to separate the truth of definitionof Woman as Man's Other, a relational concept, which is Hegelian to
Woman from the "psychical fantasy of Woman," which is a fiction. Lacan teac_h_es thecore. Irigaray has developed her criticism. Irigaray explains the way Levinas'
us that any concept of gender identity, which is what determines sex and sexua1ity conceptionof religion as the inevitably unfulfilled relation to the Other rests on
and not vice versa, cannot be separated fn?m what shifts in language, wha_l_ he a conception of fault in the sense of the failure ofthe fulfillment of the ideal. For
calls signifiance. Signifiance is a technicaJ tenn t--describe bis position that lrigaray, this ideal is Iove. But in her distinction between two interpretations of
gender identity is given to us by linguistic and cultural structures and as a res.ult fault in Levinas she shows us how the failure of the ideal and the failure of
can never come to rest in an accurate depiction of sex. Toe slippage of language fulfillmentis often read as the failure to live up to the ideal of the man's genus,
that Lacan recognizes prevents gender identity from ever being guaranteed in an even if conceived as the ethical subject. In crass language, the fault is that the
outside referent. But for Lacan, the semantic structures of gender are frozen in, manis not the perfect "man" for himself, rather than the failure to be a good
or even are, the unconscious and, therefore, are self-replicating. lover for the other genre.
Against Lacan, Derrida shows us that what shifts in language, including the
semantic code of gender identity, cannot be definitively stabilized. Nor is this Theother sex, then, would represent the possiblelocusof thedefiniti~ of the
destabilization to be fearedas a threat to sanity. gi Toe argument that this destabili- fauil, of imperfection, of the unheard, of lhe unfulfilled,etc.. But this fault
zation of gender hierarchy would threaten insanity rests on a particular concept caonotbe named except by my other or its substiiure.Moreprec1sely,there_are
of ego, which in turn argues that the refusaJ of castration--castration in Lacan's at least two interpretations of the fault: that which corresponds10 the failed
sense of acceptance of the loss of an imagined symbiotic unity with the Mother- fulfillment(dfaut de f'accomplissement) of my sex, to .the fai!ureto ~me
theideal of my genus (genre) and that which is defined m relationto the ideal
brings with it psychosis and the loss of individuation. Derrida's allegory of the
of lheother genus. These faults'
are not the same. For ceniunes, .. been
one has
mother we read earlier should then be read as an answer to Lacan's political
conclusions as if they could be based on Lacan 's analysis. Why? Derrida 's answer
!
cruellymasked by the other. This puts society permanently the po~ll~on ';!
being ethically at fault, a position which often has the backmg of rehgion.
suggests that violence toward women implied in the "psychical" fantasy of
Woman is itself a threat to the ethical relation. Thus, 1_ymuJd~~-e th_11.t.Derrida 's Herquestion, very simply put, is, Why is fault defined as it is as the fail~ of -...
answer to Lacan is that the gender hierarchy is unethicaj. But he also suggests theet:hica]subject to an unknown other? Why not the "known" other? Levm_as
that Lacan's political pessimism rests on a misunderstanding of bis own insighl it is literally an unknown other. The second question lrigaray investlg_ates!5 ,
into the construction of the gender hierarchy through a semantic code. Tbe Wb.yis communion between Iovers not stressed? Levinas' first answer would be
"psychical" fantasy of Woman demands the denial of women 's phenomenological o1-COUrse,Ulat the very ideal of communion has Hege11anovert ones But' for
symmetry. That is why there can be no aspiration of the ethical relation within higaray,communion need not carry the Hegelian message. Her idea of ~mmu-
the gender hierarchy. demands that we embrace the Other as Other rather than encompassmg her
Thus phenomenological symmetry demands the specific recognition of the 10. a
preg1ven .
umty. - the second chapter ' l would argue
In accordance w1th be
symmetry of Woman as another being, ego, which ironically demands the disman- further I~t womeo -
that the recognition that communion is pos_st!,!ederna!]c;is.
tling of the conditions of ego-identity as understood within gender hierarchy. 1t as l--~situation of phenoITlenol~gicaJsymmetry Irigarayswou::
is precisely in his own perpetuation of Woman as the Other to Man, that LevinaS Writein these tenns Even so I would argue that for lrigaray the my .
fails in his own ethicaJ aspiration. Luce Irigaray has criticized Levinas, arguing: O!ber
.
. , If
as other, notjust as other to the man's se , as 15
h" inlaginary proJectton,
th olher
Is lhere othernessoutside of sexua1 difference?Tbe feminine, as it is character- """=-
hand---......, there ever 1s
1. . to be such commumon: In Levinas, on e the
t,ecause
ized by Levinas, is not other than himself. Defined by "modesty," a modeof woman is not recognized in her phenomenologicaJ ,
being which consists in shunning the light (see Time ami tite OtMr), tbe J>Sycbial . bohzat1on of woman.
c antasy of Woman is replicated in h1s own sym . r
1
feminine appears as the underside or revene side of man' s aspiratioo toward Woman is indeed symbolized in Levinas, but not as the Iover who pronuses,

l Et
 88 f The Philosophy of the Limit
?t sat~sfaction, both conort and pleasure. Toe burden of responsibility is evoked
m Levmas through the figure of the pregnant woman. For Levinas, the pregnant
woman completely tums her body over to the Other, but not for her own enjoy-
ment. In addition, the feminine is sentimentalized as the "good mother'' of her
~n. Toe mother/son relation is for the son. Furthennore, at Jeast according to
lrigaray, the relation between the lovers is neglected in Levinas because the caress
in Levinas is man's touching of woman, not the embrace that can bring the two
t?gether. Th_us, for Irigaray, bis view of sexuality is both controlled and control-
lmg. The failure to speak of the embrace becomes the symbol of the failure to
speak of the power of !ove as other to the patriarchal gender hierarchy. In order
to Correct Levinas' sentimentalization of woman we need then to confront the
conditions in which phenomenological symmen; of actual' wom~n would not be
bloc~ed by the masculine imaginary. Only then would love as communion be
posst~le. :nius, the insistence on the moment of universality takes on a particular
meanmg m _the ca~ of the feminine and in the hope of a love irreducible to
~ado~asochtsm. (lt ts not a coincidence that Irigaray's interrogation of Levinas
ts entitled 'Toe Divinity of Love. ") Without the recognition of phenomenological
,sy~etry, Levinas' ethical relation inevitably degenerates into violation. His
.wntmg on Woman as Man 's Other is an example of this degeneration, inseparable
.from Lacan's own analysis of how the process of projection of Woman proceeds-
1As a result, a deconstructive intervention into Lacan and Levinas is necessary if
..,. /we _areev~n to ~ttempt fidelity to the ethical relationship, Iet alone if we areto
I asprre to hve Irigaray's dream of Iove.
. ~e can now see a ~mil~ suspicion in Irigaray and in Derrida to _gvi~'
m~nstence on the lack of fulfillin~nt jo the etfi_i~af~_Iatiorishp. Afthough it is
beyond th~ of my discussion bere, it is necessary -to note that Dt:__!!M!..is
n~t-~~-opb~~-U.c. as. Jrigaray ab9ut co~union~ thtougb_a Iove thal as....a.JQve
ecomes divine. Yet with this caveat we can still trace botb Derrida's and
Iri ' . .
g~y s mterrogatton of Levinas to a Nietzschean suspicon of the unhappineSS
pote~ti~I_y generated by an eschatology without hope for the "fulfillment" of
th~ mdiv1dual. ~lthough Derrida himself does not interrogate Lev!-8~
N~etzscheaii po~iti~n_,.the accolint. I offer bere reflects bis deep sympathy for
Nietzsche and _bis suspicion ofthe ethical more generally. lri-Levinas, we-must
constantly remmd ourselves of our inevitable failure to fulfill our responsibility
We must constantly seek to do more for the Other. We can never do enough. We
do ~ot ~ave muc_h fun in '.'the ethical relation." In Irigaray, more specificallY,
Levmas emphas1s on the mevitab)e lack of fulfillment of the individual altows
~e source of dissatisfaction of women to be ignored. No woman fi.nds enjoyment
m_her reduction to either the good wife or the bad mistress. Concentration on tbe
fatlure to the stranger diverts attention from the failure that is closer to "home-"
~or Derrida and lrigaray, in other words, nonsatisfaction may we11not be "sub-
lune." In lrigaray, it may be explicitly "sexist."
In his later writings, Levinas recogniz.es that an emphasis 00 tbe Good as tbe
;
l.
Ethical Signi.ficanceof the Chiffonnier I 89
beyond to Being can be found within the philosophical "tradition" itself, starting
with Plato. But certainly this tradition, as Nietzsche so brilliantly demonstrates,
carries within it its own tremendous violence. We might put it this way: absolute
responsibility to the Other demands that we suppress the Other in ourselves.
Por Levinas, to seek happiness in communion is to faJI from the sublime of
no_n~.i~tiOI_! -l_t 9 tb.e-proral).e.
Levinas' "messianism" then-by which he
means--toindicate our "lack of peace" before our responsibi\ity to the Other-
seems to be at odds with the striving for happiness. Yet as Benjamn has argued,
even thougb the profane striving for happiness does work in the opposite direction
of messianic intensity, such striving can be understood to assist the coming of
the messianic kingdom. As Benjamn notes: "For in happiness ali that is earthly
seeks its downfall, and only in good fortune is its downfall destined to find it. ,.96
Those of us, then, who have been hopelessly profaned because we cannot deny
our longing to be happy may still cheer ourselves with the knowled~e that our
refusal of nonsatisfaction may itself serve to clear the way for salvatmn.
But we can now see another danger in the example of Levinas-a danger of
which Derrida is only too well aware~inherent in the very effort to n~me or
symbolize what difference is, particularly feminine sexual difference. To nsk the
name of the law of allegory in action is to potentially reinstate myth. The danger
of myth, of course, is the very erection of the "there is" that cannot be challenged,
including the "there is" ({'a) of the gender hierarchy. Dt:rrida consistently decon-
structs the ''there is." We have seen how Levinas' symbolization of the burde~ed
subject as the mother perpetuates a myth of feminine identity, and by so ~01~g
reinscribes the rigid sexual difference of Lacan 's ('a. We can, the~, read ~mda s
hesitancy to name tbe ethical Jaw or impulse of deconstructton as..1tself .8?,
enactment of tbe ethical relationship which seeks to deconstruct the there is
implicit in the myth for the sake of letting othemess be Other
Levinas' response to Derrida
Yet as Levinas has remarked this hesitancy takes its toll. Wil:hou.t_therisk of
th_e ~ame, t~~!hical i~p~.l~!?- ' ;i., go unnottced. Even
o( 1eco~~~-~!1Q.D -~an :~N'. . reected
so, Justas it woulu"6e"a serious m1stake toread Demda as 1f he s,mp1Y _J.
Levinas' proiect it would be an error to deny his affirmationof responsibth~.
J ' ' that prompts h1s
Yet un1ike Levinas be hesitates to name the prescnpt1ve iorce . .
cal). Derrida in oth~r words Ieaves us with the paradox that the Saymg ~an _neverf
. and yet
' we must at the' same ttme
. wo1u 1ess 1Yattempt the. themabzahon o
beSatd, _..:1
th "bil"ty for Levmas on the other
e Saying if we are to heed the call to respons1 1 _
han~, w.~. mus!._pbilosophically att~mp~--~~-sy_~h[.l!!.l~e.
S~~.J~_.Il~gatj~m in the sa_icL_Sucha ~~hromzall:~
~e :!!r:::' . f the
:ields
ne ation of the
a pets1t.1ve,philosophical statement of the s1gmficance O . . g that Levinas
peSent and of representation It is in this attempt at synchromzat_10n . .
1
endeavors to move beyond the philosophy of the limit. As Levinasexp ams.
 90 I The Philosophy of the limit

lnfinityis beyondthe se of the .

be assembledinto a ope uruty of~scendental apperception, cannot
the presentandof present,. and refuses bemg recollected. This negatioo of
bility andsubstituti::.e;::e::~:=.ifrotive in pro~~ty res~-
fonnthe
theology. The refusaIof
that . 1.-~-
is, as a IU!tage
. m propos1t1ons of negabve
presence 1s convened into my presence as present
deliveredoveras a gift to the other.91 '
4
Very simply put for Le th .
this troubled B v1?85 e pract1ce of allegory may not be eoou&h in Toe Good, the Right
ethical force ::~ y ~pting to s~ ~hat Derrida does I am also naming tbc
is still true to the of the.Imut. To my mind, this attempt at naming: and the Possibility of
of the limit In th x t I have JUst described as inherent in the pbilosopb)'

=
/wn relativ~ silenceatsenbe:C arguments I bave made take us beyond Denida's
tbthee Legal Interpretation
\ ,ore name ofthe-'-a]
,struction " Humili bef. '-um: asprration enacted by decm-
Nietuc~ so des~ the paradox tbe self-righteousness lhlt
promise of tiddity_to 0
- - ---
u.rm:gb. !CC~gmtt~-~!
-------"~ID crent1nt.he.~~o.QJQ~hich
~-an f}llly meet lbc
weaspl'C.
lntroductton

In the last cbapter I discussed wby what has been called "deoonstruction"
should be understood to aspire to enact the ethical relation. Indced, 1 suggestod
that Derrida' s deconstructive intervention into Levinas gives witness to the ethical
relationship by uncovering how Levinas' project tu.rosagainst itself without tbe
recognition of a "strange symmetry." As we saw, the danger in Levinas' own
evocation of the asymmetry of the etbical relationship was made evidcnt in hs
writing on Woman as the Otber and, more specifically, in his use of tbe pregnant
wonum. as tbe very symbol of a subject constituted by its burdenof respoosibility
to the Otber. 1 also suggested that Derrida's deconstructive intcrVentioninto tbe
theoryof J acques lacan is necessaryif we are to think througbbow tbe psychcal
fantasy of Woman blocks tbe recognition of women's phenomenological sym-
metry.
In this chapter, I want to discuss how the ethical coofiguration provided by the
intersection of Derrida, Levinas, and Lacaa, can belp us rethinktbe qucstioo.of
lcgaIintcrpretation. But let me begin with a quote from Blaochot wbich elaboratcs
lhe threedifferent realms that must be given notice for an adequateaccount of
legal inteq,reration.
Laws---prosaic Iaws-free us, perhaps, from tbe Law by substituting for tbe
invisiblemajestyof time tbe constraints of space.Similarfy, rulessuppms, in
the term. "law," what power--ever primary-evokes. Rules aJso suppresstbe
rights which go aloog with tbe DOtion of law, and CSlablisbtbc reign of
pure procedure whicb-a manifestation of tedmical compelfflet, of sbecr
knowledge-invcsts evetytbing, controls evcrythiDg, submiu evay gcstme to
its administration,so tbat there is oo Jongerany pmsibility of liberatioa, for
ooe can no longer speak of oppressk,n. Kafb' s tria] can be iDterpmcd as a
1

_..of
..........
tangle of three differcnt realms, (tbe Law, law, rules).
1
My purposeis"' tell lhree diffemJtst1lriesto sbow wbatlbc
reahnsto which Blancbot rcfers meansfor undcadaoctingtbe KCCDt debatesin
1

,J 91
 92 / The Philosophy of the Limit
American jurisprudence o ver the question of legal interpretation. Toe threereaims
as I interpret them from Blanchot's quote are: ( 1) the Good, or the Law of Law;
(2) the Right, or the moral Law of the self-legislating subject; and (3) lbe
principies inherent in an existing legal system. There are two senses in whicb I
refer to the Good. First, the Good should be understood in the strong sense, tbe
universa], as Levinas uses the word. Levinas, as we saw in the previous two
chapters, understands the Good as an irremissible necessity for all subjects.
Second, the good should be conceived as the universals within a given legal
system conceptualized asan indeterminate nomos. These three realms, the Good,
the Right, and the good embodied in the legal principies, are not reducible to
categories of the mind, because they describe codes of a legal system of human
interaction.
To tell the first story I will once again retum to Hegel, but with yet anotber
emphasis. In Hegel's Philosophy of Right, the three realms are shown to be a
part of the system which ultimately gives each realm its meaning. Hegel, of
course, recognizes the interplay between the three realms, but even so, their true
meaning is only given to us in Absolute Knowledge, in which the Good is fully
revealed.
Hegel, then, rejects de-ontologicaJ theories of the Right as the sole basis for
a modero legal system. In other words, Hegel reminds us that we are inevitably
caught in the tangle of the three realms; the Law of Law, or the Goocl, the Law
of the self-legislating subject, the Right, and the legal principies which embody
the concrete good of the nomos. For the strong neo-Kantian, on the other band,
the Law of Law or the Good is replaced by the Law of the self-legislating, free
subject. It is precisely.tbe-Ralm ofthe_ Good that the strong neo-Kantian ID<Jl'@lY
arguesis _inconsistent with modemity. As we saw in the Introduction, much of
the recent writing in liberal analytic jurisprudence has implicitly rejected therigid
distinction between the Good and the Right. Even so, it continues to infonn man.y
of the debates between the new communitarians and one of the main strands of
critical social theory presented in the work of Jrgen Habermas. 2 As a resuJt, we
must keep in mind the traditional tenns of the debate between Kant and Hegel
over the relationship between the Right and the Good. For Hegel, we cannot
esca~ the Law of Law understood. as a conception of the Good, beca.use theorie5
of nght can only be nonnatively grounded through an implicit reference to tbe
Good. It is precisely this insistence on the inevitable interplay of tbe tluee realms
that also distinguishes the "postmodem" stories [ will tell from neo-KantianiSill-
As we wiU see, wbat is rejected is not the idea.Is of modemity, and certainlY oot
the "gains" of a modem legal system, but instead the illusion that a normarive
conception of modernity can be so self-grounding that the realm of tbe Goodis
at best irrelevant and at worst a regression to the premodem. Hegel always
reminds us that the very ideal of law as the nomos of a community implies a storY
of the good life. This fundamental insight is recast but not rejected in tbc so-
called "postmodem" stories I offer.
1
The Good, The Right, and Legal lnterpretation / 93
The "postmodem" story has at least two distinct versions. But let me begin
with the shared assumptions evidenced in the two stories. Bo~ versions. ~f ~he
"postmodem" story revea) the inevitable diremption of the Hegehan reconctlta~1on
of the three reaJms once the Hegelian system hasbeen unraveled. Both vers1ons
also agree that there can be no foundatiooolist grounding of any gi~en system of
legal rules and norms in the Law of Law. Furthennore, both vers10ns not only
reject the illusion of the nonnative selj-grounding of the Right in transcendental
subjectivity, they also reject the positivist solution to Grundlosigkeit-:h~ loss
of an independent foundation for Law-which finds the Law of Law w1thm the
mechanism of validation intemally generated by an existing legal system. For ~e
lega] positivist, the Law of Law of a modero legal system can only find 1ts
grounding in its own positivity. 3 But in order for tbe Law of ttw to reduced
to the mechanism of the perpetuation of legal rules, as wc w1Jl see m .the next
chapter, the legal positivist must pos tulate a self-enclosed sy~tem. 'f!1e ph1losophy
of the li.mit, on the other hand, persistently exposes the phdosop~ucal faJl~y of
legal positivism by showing us the moment of ethicaJ alternity mherent m any
purportedly self-enclosed system, legaJ or otherwise.
But how is the moment of ethical altemity "presented" in the philosophy of
the limit and in other versions of "postmodern" discourse as it is relevant to an
account of legal interpretation? We now come to the difference between the two
versions of the "postmodem" story. In the first version .~f the story, the .~w of
Law is only "present" in its absolute abseoce. Toe never has been of an
unrecoverable past is understood as the lack of origin "~~ntablc" rilJ: as
absence. The Law ofLaw, in other words, is tbe figureof antmbal fragmenta~?
the loss of the Good. But this absence is inescapable because the lack of ongi.n
in which the Good could be rooted is an inescapable, fundamental truth. In tbis
story, a distinction is not made betw.een the Goodin tbe stron~ sense of the Law
ofl..aw and the good embodied in the legal principles of any gven leg~ system~
As a result, the "definition" of the Law as Law as absolute is taken to impl~
tbere .IS aJso no honzon . , out of the pnnciples embod1ed
of the Good , projecLQJ. . m
the nomos to which one can appeaJ to for guidance in evaluating compehng legal
.mterpretations ' . - " tmodem".story has
=~on
of a case or a statute. This vers1on of the pos .
often beeo received as the ''truth" of "deconswction" in ~ncan hterary as
1
well as legal circles. As we will see, will reject tbis ve;: ;:,~f
The second version was introduced ID the last~~aJ>b:f -~ Le .
ofthe Good and, as I also argued, in Derrida's-cntical tn~.eob.Qn. t~to ~vinas,
r!-~::r:
tli~.U\J\Xl - - ,, , --
remam~ ___
~~~:"
th- -A! - -
. ..
e_~sfllptmn
-
As the caU to respons1bihty for tbe
trreduc1ble to negative theology, or to the allegory of
~:..
f onwlogy tbat contlllually rwpens way
Law of l..aw is
fragmentation
thatcan only be indicated as absence. . . f horizonof tbe good
As I also hope to show, it is precisely the proJ~on
within the nomos of any given legal system, ~ven if
IO tbe possibility of legal interpretation. But if all wedo
18
~::m.
. ed tbat is essential
tbe nomos
 94 I The Philosophy of the Limit
fr~m within its own terms without understanding its limit, we would not be
fa~thful to the Good in Levinas' strong sense ofthe term. (In the next chapterwe
wdl see how Levinas' messianic conception of justice is inseparable from tbe
Good as he understand s ...1t . ") Jt is
o nJy once we grasp the complex relationship
between the de-limitation of ontology and the recognition of its inevitable rein-
statement through linguistic stabilization of systems of representation that we can
und~rs~d why the Good in both senses I have described remains cruciaJ for tbe
possib1hty of legal interpretation. Toe call of the Good in Levinas sense commits
us to the not yet of what has never been present, cannot be fully recalled,
and ~e~fore cannot be adequately projected in an all-encompassing positive
~np~1on of the Good or of Justice. We are called to the commibnent to tbe
1mpos~1bl~,the full .realization of the Good, and to the need to defy the imposs.ible
by proJecti~g a honzon of the good embodied in the nomos, even if in the form
of class1cal ~odem emancipatory ideaJs within any given legal system. B~
Levmas and Demda lea ve us with this paradox. 1 will argue further that Derrida's
:uble_ gesture .can only be un~rst~ as a response to this paradox, wbich
.ogmzes that Jt would be unethical ultimately to resolve it. As we will see, any
ultimate resolution would once again collapse prescription into description, and
would, as. a result, unfaithful to either the Good orto Justice. The significance
for legal mterpretation of the Derridean double gesture can only be understood
once we _understandthe double gesture notas cynicaJ duplicity, but asan aspiration
to pay w1bl~s to the othemess of the Goo4with_~.pe.<;ttn estahlished conventi_oo.
At s~e m the recent debates in American jurisPrudence over the possibillty
of legal mterpretation is the answer to the most fundamental question: Can we
~scape from the Penal Colony in a "modern!postmodem" legal system't If law
is reduced to the positi~e legitimation of institutional power through establisbed
legal procedure, we w11lonly know the meaning of a legal proposition as it is
engraved on our backs. Robert Cover has rightfully insisted that we must remero-
ber that the legal sentence takes on meaning ..in a field of pain and death ...s Law
has only too much power to enforce its meaning. It is for this reason that tbe
central ~r of "irrationalists" in tbe Conference of Critical Legal Swdics
/!138 tragic potential .. Toe central error is to confuse Grundlosigkeit (loss of an
/ mdependeot f~bon for. law) with Unsinnlosigkeit (complete loss of meaning
sense), a confuston that 1s repeatedly made in the tirades against "dec;oostIUC~
_ti~" as well_as by its friends in the Conference. If legal sentences can have no
ethicaJ mearu:g, not even institutionaJized meaning, then the machi.ne is free to
make us feel 1ts meaning nevertheless. Toe machine nreds no justification to
~eep o~ .~ng. Toe hope for transformation, bowever, is precisely in tbe
unposs1b1h~ ~f such amachine. The machine of Kafka's parable Jiterally runs
amok once 1t 1s no longer seen by the one who runs it as an instrument of tbe
Good.
Toe cen~ message of this chapter is that we cannot escape tbe appeaIto tbe
Good as we mterpret legal sentences. 1berefore, tbe possibility of escape from.
The Good, The Right, aM Legal lnterpretalion I 95
the Penal Colony can never be foreclosed, as we condemn the machine in the
name of the Good. The significance of this assertion is that the recent debates on
legal interpretation which have predominantly tumed on linguistic intelligibility
have focused on the wrong question. 6 The issue is not whether or not there is
intelligibility, but rather what figure the Goodcan take on after the deconstruction
of foundationalist philosophy. lf I am right, then I have potentially answered
Robert Cover's concem that the interpretive tum in American jurisprudence is
ideologically dangerous because it masks the inherent violence of the legal
sentence.
Hegel Resummarized
But let me now briefly tum to tbe Hegelian reconciliation ofthe three realms,
which we have already discussed in earlier chapters. As we saw in c_ha~ 2
and 3, the Good in Hegel is translated into the legal sphere as th~ reah~ ideal
1
of the relations of reciprocal symmetry between persons. th1s _as_the
realiz.ed Idea) or the Good, Hegel provides us with a rationaJ lmutmg pn~c1ple
by which we canjudge competing interpretations. This limiting ~n~iple, '! ma_y
be noted, is by no meaos a matter of linguistic convention. Th1s drremptlon IS
purposeful. Toe point is that the act of interpretation cannot be separated from
an appeal to the Good because legal interpretation is justification ~gh the
appeaI to the Ideal, and this appeal cannot be Iimited ~o the t:5tabbshment of
acceptedconventional meaning because it is precisely this mearung that must be
justified. 8 In Hegel, tbis process of justification can come full circle so that there
is no distinction between the Real of conventional meaning and the Ideal bec~se
the Good has been realized in history. As a result, the problem of the grounding
of actual legaJ principies in the Law of Law is solved. .
Por Hegel, the ideal of relations of reciprocal symmetry between pe~ns ~s
the crowning achievement of a moderolegal system. Tb.is ideal is embodiedm
the break.down of legaJly recognized hierarchies. We are now equ~s at l~t as
legal persons. Toe legal person is an abstract definition of sel~ ID ':"h1ch
individual is understood as irreducible to her concrete social st~bon. lt is
precisely the realized good of relations of reciproca} synunetry that gives content
to ex.isting legal rights established by law. As a result, Hegel always leaves open
the possibility that a tension will exist between the Law of Law as 1
II
any system of legal rules. Toe "real is rational" only to the ex~t that em :
the Good, the Law of Law. Legal rules are given meamng ~y reference
. . th the realized eth1cal Good now
1heGood the uniqueness of modermty 1s a1 . . .
encom,as'ses the sphere of priv~te ~ght and ~iple ~f su~ivtty .. 00 of
The full recognition of the pnnc1ple of subjectlvtty reqwres .
--" 1 gisl>tingsubjecbvtty, as we 11
the spbere of pnvate conscience oc the Jawo f ::;fwU -aiiliil
e . .
cannotbe self-sustammg.
8.$ the sphere ofprivate right. But in Hegel, M or.
 The Good, The Right, and legal lnterpretation / 97
96 / The Philosophy of the Limit

Hegel argued that Kant' s own categorical imperative is saved from vacuity ooly constitutive of the actual, is a declaration of war on ali that attempts escape from
by smuggling in the substantive Christian maxim, "Do unto others as you wouJd the"objective" order.
have them do unto you." Toe problem of the vacuity ofthe categoricaJ imperativc We do not need obscure fragments of Herac\itus to prove that being reveals
can be solved only if the private morality of the individual is given content in a itself as war to philosophical thought, that war does not only affect it as
shared ethical reality. Otherwise, the moral imperative is not only vacuous, it is most patent fact, but as the very patency, or the truth, of the_re~l.In "'.'arreah~y
an abstract "ought to be" that cannot be lived. 9 For Hegel, as we saw in cbaplct rends the words and images that dissimulate it, to obtrude ID 1ts nu_d11y and ID
-1, the only solution to the vacuousness of the categorical imperative andtbc its harshness. Harsh reality (this sounds like a pleonasm!), bm;h obJectlesso~,
reconciliation of the realm of freedom, the free subject of mora.lity, with tbc at the very moment of its fulguration when the drapingsof illusion bum war is
realm of necessity, the subject of Iaw, is the realization of the Good in an actual produced as the pure experience of pure being. The ontol_ogical_ event that takes
community. fonn in this black light is a casting into movement of bemgs hitherto ancho~
in their identity, a mobilzation of absolutes, by an objective1~ from which
there is no escape. Toe trial by force is the test of the real.
Levinas Reviewed
lronically, the violence of what Levinas calls ontology is .!so the b~is for
legal positivism----a solution to the problem of legal interpretauon seem1Dgly at
For Emmanuel Levinas, as we have already discussed, the Hegelian conceptioo odds with Hegelianism-which, too, must exelude the exterior, in order_to ~ulfill
of the Good, which unifies subject and substance in Geist, is the example par its claim that the meaning of the legal system is only to be ~ound m ttself.
exceUence of the violence to the Other, to Infinity, which is perpetuated by Positivism attempts to fill the legal universe. The individual subJect gobbled .up
m the system has s1g01ficance
through which the legal machine
. d. dual
,.. Western metaphysics. The othemess of the Good is reduced to the order of tbe only as a cog
1
Same in the metaphysical move to establish the philosophical system as a totality- worlcs. Por Levinas, the mobilization of warexpresses the erasure~~e ,?: ..
to
Hegel's solution to the problem of how the Good is to be reconciled witb wbat !u'_the sYsiem mQfil._grapb.ically.lf a war-ii legally de.clared~then tt ts ~;Do. t
----.~- - h. d ty The commandment no
"is" so as to provide a knowable basis for legal interpretation canoot. tben, be ~div~<!_~~ mustJoUo\\'., 1_s1ega 1 _u down attempted
separated from the violence entailed in totalization. Geist, or cosmic subjectivity, murder me' is ignored. Toe system s ontolog1cal force breaks
is self-constituting not only of itself as subject, but of all that purported1Y resistance in the name of the commandment.
against it as the objective world. This process of the self-constitution of Geist m fi ed in the concept of tcta.lity
Thevisage of being that shows .1tselfm

war is X .
Hegel, as Levinas understands it, is not the simple identification of self with tbe dual are reduced to bemg bearerS
which dominates Western philosophy. Ind1v1 s . f
Other. And yet as Levinas explains, .__ to lhemselves The rneamng o
.... K

of forces that command them un...........

own otar 12
individuals (invisible outside of this totality) is derived from the t ity.
[T]he identification of the sarue in the I is not produced as a moootanous
tautology: "I am l." The originality of identification, irreducible to the A is A .. tha1 H J's closed circle of
Lev~_ ~):lares_with Adorno th_~e!hic~-~~qlJ_e ::~ no trallscendence -
fonnalism, would thus escape attention. It is not to be fixed by reflectiog on
the abstract representation of self by self; it is necessary to begin with tbe
is_11Qri~Q(l_f9! tht:_ind1v!~t1_al_,
beca!l~-!h.~- .... one-
can keep-her
of the system Toe system establishes an order from which no . the
concrete relationship between an I and a wodd. 1be wodd, foceign and hostile, ~ . O 1 enforces the status quo m
distance;nothing henceforth is exterior. nto ogy . ,,

pre:
should, in good logic, alter the l But the true and primordial relation betweeo
them, and that in which the I is revealed precisely as preeminently the same, nameof a tired, cynical realism: ''This is ali there is. .. ho Id be
is produced as a sojoum (sjourJ in the world. Tbe way of thc I against the In this sense, the condemnation of the "myth of full t~on~ The
"Other'' of the world consists in sojourni11g, in tdelllifying onese/fby existinB understOOdto have self-evident ethical, legal, and political . cafthe:.here
here al home with oneself [chez so,1 .... Everydring is bere, everything ind. be red ed to a contatner o
Ivtdual should not, and indeed., cannot uc be bJ"terated even if
belongs to me; everything is caught up in advance with the primordial occ:up)'in& 0 1
aOdnow" of any system. Toe trace of othemess can~ot.. '
of a site, everything is comprehended. The possibility of possessing, that is, tbeOtber can be physically kiJied by the "war machme.
of suspending the very alterity of what is only at first otber-, aod olher relative
. ex sed 10 the point of the
to me, is thc way of the same. 1 1e Other who can sovereignly say no to me issbakable po bis "for
finm,e5S O
h 1
~Wordor the revolver's bullet, and the w e uniterated \,ecaUSCthe sword or
For Levinas, tbe rhetoric of ontology wbich proclaims tbe Being of wbaf:is as itself" with that intransigent no he opposes _isobl . tbe conrexture
1
the truth of tbe whole, and even in Hegel, as tbe realized Ideal of ti.:: (Jood, tbebullet hastouched the ventricles or auncles of bis heart- n

98 I The Philosophy of the Limit
The Good, Tire Right, and Legal Jnterpretation I 99
of the world he is a quasi-nothin B
oppose to the force that Strik ghi ut he can oppose to me a struggle, that is,
uriforeseeableness of his ti:' Hmnot a force of resistance, but the very
reac on. e thus opposes to t
to encapsulation of the Beyond. Toe Law of Law or the Good, is precisely lhe
echo of the Call of the other as a prescriptive command drected toward the
an energy assessable and con uen . . me no a greater force, future that disrupts the Hegelian .~ystem and the pretense of any _system to have
of a whole b"t th seq tly presenttng Jtself as though it were ""rt
' e very transcende f h be r- adequately represented the totality of what "is" Good. The Law of Law "is" as
not sorne superlative of pow b nce . 15 ~ng ~y relation to the whole;
This infinity sttonge !han er, ut prec1sely the mfiruty of bis transcendence. rupture of the status quo. This is why Blanchot postulates the Law of Law as
. ' r murder altead - . .
IS the primordial expression 18
'
. thfi Y res1sts us tn h1s face, 1s bis face,
e rst word; "you sha1Jnot commitmurder."u
diSllSter:

Would law be the disaster? The supremeor extreme law, that is: Toe exces-
The trace marks what "is" thro gh siveness of uncodificable law-that to which we are destined without being
tutes'' the order of the s stem u the "anterior/posterior." The trace ''.wnsti-
all language, and the~ore ~h:ther of lru:1g_u~geor in law, because for_~y~ party to it. The disaster is not our affair and has no regard for us; it is lhe
heedless, unlmited; it cannot be measured as terms of failure oras pure and
command of the Other "Y h ery posstbihty of meaning, presupposes lile simple loss. 16
scene, and we encounter h thr
birth from this encounter :~i
ou s all not murder me " Th Oth - firs
. e er 1s t on
the
hough .this c~n.im~nd. The subject endures a latent
e carnes withm tt the burden of responsibility.
But in Levinas, the Good as the Law of Law is also not to be understood as
simply the limit of signification, which is why he explicitly states that he disagrees
Significationas proximity is th . with Derrida, whom he takes to have this understanding. For Derrida, the relation-
for prior toan origin, an . _us.the 1~te_~t ~~_of_the subject. Latent birth,
ship between the Saying and the Said is again postulated-as n unresolvable
even if by memory. lt is anrutJ.ative,a prese~t des1~fuble and assumable,
..._ nonbeginning """' h Aanarchronous birth, pnor _toits.own...preseut, a ~-x wbich must, ali the same, be respected, if one is to heed the cal! of
' are Y s latent birth it respsibfty to fue- Other. F9_r~vinas, if we understood the Saying as the
the present of coincidin wi ' . . s never a presence, excluding
VU!nerability . g th oneself, for tt IS in contact, in sensibility, in li~! oCo~tOogJ; -.~e Saying woukCane again be reduced to a relationship
, m exposure to the outrages of the other. i si_nEtllUi~ with the said, and tberefore, no longer disruptive of its claim to full
Toe subject, then, is not born orco . . ~!e~~ Toe ~aying, in Levinas, is what cannot be said in the Janguage of
He instead comes to hims lf. hi nsh.tut~ man act of self-conscious assertion. on_tology, beca!,!se_the infinty of the Good, as infinity, cannot be known within
as the unavoidable con~ ~:roxinuty to Her. This proximity "is" ''there" ntf~ality.
and who in turn is fated to be Other to whom we are fated to be exposed, But if Levinas postulates the Good as infinity (because we can never meet our .s.
the future as a nn>"'cript exposed to us. But the trace also points us toward res~r_si_!,ilityto the Other as long as we respect her Othemess), and therefore
r- 1ve command "Do not urde ,.
(As we wiU see in the next h m r me, not now, not ever. rejects Hegel's totalized system (which tells us what the Goodentails and what
not only in the particular c~ :er, the P~ptive c~mmand "Be just" calls us it demands from usas members of the comrnunity), he also disagrees with Kant.
to the command - h fore us, it calls us to Judge again and to live up ~O!"Levinas, the call to responsibility by the pther does disrupt the Kantian '
m eac new case.)
But the trace, in Levinas of th Oth . ~!!!)_g~Qf ibefree sU:bject.ofinorajli}'. Toe Kantian subject is enthralled by duty,
understood, as in Hegel, a the e .er that remams in proximity but duty is still self-imposed. 'IJ}e subject o(m.orality-is-self-legislating.,
t)etween the threerealms the Law establishment of a fully_present--reLilionsbiP lt is_only by rising above contamination by the heteros that the self achieves
and legal rules and p~f le~ th_c;.fLaw the Law of tbe self-legislating sub~_. mor!!L~Om. FOf Levinas, on the other hand, the subject is bound to the Other
relations of reciprocal s p at can be. comprehe~ded as the_ _of -~ and it isthi.svery tie to the heteros that marks the ethical relation. Indeed, we
constitutes me through r;netry As Levnas explams our proximity Wnich can never truly be free from the Other, even when we try desperately to stifle
e 1ace of the Other:
Her call. lf Kant _gives us a morality of _duty_,-~vinas gives __ us aJl ethical
It is the significationof signs. lt is tbe hu . ~lationship-Of fes()Ollsitiilit)'--inwhich the subject recOgliiieS autonomy as illu-
basis of transcendentalsub tiv . maruty of man oot understood oo the sion1 an~ the attempt at freedom from the heteronomou_s_a,s_a form of denial that
itself exposed S . lty lt is the passivity of exposure a passivity
aymg does not occur . ~s_j)TOfu1.mdly unethicaI. FOr Levinas, then, it S-ntjust that the.e"fhical cannot
understoodin terms of conscious m COI1SCJ.~oessDO(" in a co~~_!
anda synchrony.1' ness or memory,n does not form aconjecture be self-groundig ill the Iaw of the transcendental subject, but that the attempt to
postula.te such an independent, autonomous subject would itself be unethical.
We now tum to the realm of the system of existing legal rules. How does
For Levinas, proximity is not Hegel's ''we .. in a
encounter with the Other who calls the h. commonpresent. Through tbe Levinas understand the significance of tbe rebellion against the Hegelian system
me, su ~ect first experiences lhe resistance for the interpretation of legal rules? As we have seen in Hegel, legal rules are

l
 100 / The Philosophy of the Limit
given ethical meaning by reference to the realized Good of relations of reciproca!
symmetry. Let me emphasize that when I use the word meaning, I am not
referring to institutionalized linguistic meaning in the sen se of the intelligibilityof
sentences, but instead to ethical meaning. Hegel understood that the dilemma of
legal interpretation does not turn on whether we can cement linguistic meaning.
Le~al rules are justified in Hegel through the appeal to the realized relations of
reciproca} symmetry which give them ethical justification. Toe Good, in the
strong sense ofthe ultimate universal, in Hegel, is immanent in social institutioos
and therefore capable of being grasped by the human mind. The Good in Hegel
can tell us what measures such as progressive taxation can be justified by an
appea]
h 17to the community interest, even if such measures impinge on individual
ng ts. But as we have also seen in Levinas, the Good is precisely what eludes
our full knowledge. We cannot grasp the Good butonly follow itas the command
of the Other. 1t is precisely the Good, the Law of Law, as responsibility to the
Other that calls us to justice. In Levinas, although there is an inevitable d.iremptioo
between the Law of Law, the Good, and the actual, we can also not~ our
~sponsibili~, .Partcularly if we are law professors~ judE:es,. an4 _!a_~)'.ers, .1
~aJJ_g_t1_ide..us_
el!~!_3:!_e_~n~_1plesof j!(stice "":'.hich. i_n-~~_effort tQ~Y~hro!!j~_the
~ompetmg cla1ms of individuals and to adjudcate between di~ergent interpreta-
bons of doctrine.
Tbe "Postmodem" Story
of Critica) Legal Studies
Within the Conference of Critical Legal Studies, there is a well--developed
story that has, contrary to my reading of Levinas, represented the deconstruction
of antifoundationalist philosophy as the complete loss of the Good-as if such a
loss could ever be represented. Although the "irrationalists" in the conference of
Criti~al Legal. s.tudies rarely cite Levinas, they have been deeply influenced by
Demda, and 1t is to Derrida that they often attribute their own proposition that
the abs~nce of fully cognizable Good leaves us with the irrationality of ali legal
and_eth1cal choice. Ethical responsibility is reduced to a choice amongst other
~ho1ces the individual can make. But as we have seen in Levinas, responsibility
IS n~t choice at ali but an irremissible necessity, since we are inevitably in
pro,um1ty to the Other.
As argued in the last chapter, in a more in-depth exploration of the relatonship
_between Derrida and Levinas, the identification of deconstructon with ethical
skepticism is a $erious misinte:rpretatiOn. SuCh a misappropration of Derrida,
however, has had serious consequences for tbe way in which the "postmodem"
story of the tangle of the three realms of the Law of Law the law of self
legislating subjectivity, and legal rules and legal principies been undersrood,
at least by the "irrationalists" in the Conference of Critical Legal Studies. 1'
1
)
The Good, The Right, an Legal lnterpretalion / /0/
This misappropriation, in other words, has served as the basis of the first
version ofthe "postmodem" story as it has been translated into law. The "irratio-
nalist" story tells us that if there is no "real"-understood as fully cognizable-
Goodthat can guide us in our day-to-day activities as lawyers and judges, there
can be no rational limiting principie by which to judge competing interpretations
of legal doctrine. As there is no Good, present or immanent, in social life to
guide us, there is alsO' no Kantian transcendental ego that can legislate its own
law in the sphere of morality. Instead we have presented to us a self tom apart
by conflicting impulses. 19 The selflongs both for community and for individuality,
connection and freedom. There can be no hope for a rational reconciliation or
synchronization between the competing impulses. Such selves can create only a
legal and social order tom apart at the center. As a result of the account of the
phenomenology of the self, the Law of Law, or the Good, cannot be replaced by
the second realm, the Law ofthe self-legislating subject, because the self cannot
overcome the contradictory impulses that rend it apart. Therefore, it is an illusion
that the moral self can be truly self-legislating. io
This means that the deconstruction of legal positivism carried forward by the
Conference leaves a vacuum that cannot be filled by an ethical vision. Legal
positivism argues that legal systems are self-enclosed hierarchies thal generate
their own elements and procedures as part of the mechanism of the self.perpetu~-
tion of the system. In Anglo-American jurisprudence, legal positivism has trach-
21
tionally been based on the writing of H. L. A. Hart. Hart proposedthat ali.1:~al
systems are based on a master rule of recognition, which establishes the trulla!
hierarchies of the elements of the legal system. 22 From out of this master rule.o
recognition, Hart argued that it would be possible to directly derive two categones
of secondary rules; the rules of process by which the law is applied and then the
rulesof prescription we think of as doctrine in a common law system. Toe_ear~y
critique of Hart, initiated by Ronald Dworkin, n showed that !lterpretatlon IS
~-~~ntally an ethical enterprise, because the derivation of ~ondary rules
c~ot escape an appeal to their justification that is not based only m the mec_h~-
rusmfor the self-generation of the hierarchy of rules. I will not repeat Dworkin s
argument here but I do want to add that the "irrationalists" in the Conference
have not only ' shown that rules of procedure cannot escape an appea]ta . 0
1
substantive ethical justification, they have also shown us that the very ~ea ?fa
rule as a force that pulls us down the track through each new fact situ_atton,
,1..,. ___ "al Toerefore ' no !me of
""i.cnnmmg the outcome of a particular case, IS 1, se.
PI'ecedentcan fully determine a particular outcome in a parti~u!ar e~, lx;u~
~-rule..itself is always in the p,rocess of rei.nterpretation as It is apphed. 1t is
1!1,___~~!l:}l:ii'
g.1v_~$
_ut l;ht:rule d not the_other around: is "
Th1s insight is what has come to be known as the mdetenmnacy thes '.
Wh'ich has been mistakenly identified, at bmes . - proponen ts of the. thes1s
by the
~DlSelves, with the proposition that there is no institutionalized :C
me_an~ 0
rtal" intelligibility of the legal sentence.Zl Toe ''proposition" should ms

102 / The Philosophy of the Limit
understood to be that law cannot be reduced to a set of technical rules a self-
suffici~nt mechanism that pulls us down the track through each new f8Ci Slhition.
Law, m other words, cannot be reduced to a self-generated and SCii-validating
set of cognitive norms. Interpretation always takes us beyond a mere appeal to
the status quo. I will retum to the significance of this insistence on the appea]to
~e beyon~ in relation to the system of established rules, as inherent in legal
~nterpretat10n when I discuss why the philosophy of the limit is helpful in rethink-
1 mg the current debates in American legal circles. It should be noted here,
however, that according to the irrationalists in the Conference we cannot replace
legal positivism with a rational, ethical vision. Such a vision could only be found
through an appeal to the Good, the Law of Law as in Hegel, orto the Rigbt,
:, understood in the moral realm as the law of Kant's self-legislating subject.
As a result, ethical responsibility is reduced to an existential choice. In spite
of themselves, the "irrationalists" in the Conference of Critical Legal Studies
reinstate the subject-centered approach to the ethical that Levinas, and l woukl.
add Derrida, rejects. It would be a serious mistake, however. to interpret tbe
"irrationalists" in the Conference of Critica} Legal Studies as rejecting the need
to ~e- ethical commitments because they are inevitably subjective. Indeed.
thetr ms1stence on the "irrationality" of personal ethical commitments can itself
be understood to have an ethical dimension. Under this view, no one can proclaim
his or her moral position as the truth of the real. Each one of us is free to make
or ~er choice. Toe "irrationalists," in other words, although they have nol put
1t m th1s way, want to join with Levinas, to den y the ultimate hubris of ontology -
The "irrationalists" want to interrupt the Lagos as "the Jast dominating ali mean-
ing, the word of the end, the very possibiJity of the ultimate and the result. ,,lfi _lf
one interprets the "irrat!~!l~ists" to expose----:-with Derrida aJJ.4wi.tb..Lc.vinas-
the_~thica} ~e~_limitation of ontoIOg}', then it is -~;_bj~ -rethink the etiucaJ
significance oftheir message. Unfortunately; the "irrationalists" in the Confel"Cnce
have not adopted this interpretation, reverting instead to a recast existentialism.
As a result, they have tended to confuse the deconstruction of the hubris of
:ontology with radical skepticism and with Unsinn/osigkeit.
Toe central error of the first version of the irrationalist "postmodem" story is
to replace the truth of Hegelian reconciliation with the truth of castratioo. 1be
Good, so the story goes, has no constituting force. The Good "is" only as absolute
absence, as lack. The Good does not, in other words, leave its mark on us. On
this reading, the "postmodem" conception of the Good resembles one understand
ing of negative theology. Levinas, on the other hand, is very careful to distinguish
1!1eGood. as otberwise_!l_lan~ing, from negative theology. The Good does tea.ve
its mark. Indeed, as we h.ay~_!>CCD, GoodconstitUles ttisubject as respoosMe
to the Other.
Tbe Limits of tbe preseot in .which infinity betrays itself break ~' lnfinity is
beyond lhe scopeofthe unity of~ appetceptioo, be asscm-
,1
The Good, The Right, amilegal lnterpretation f /03
bled into a present, and refuses being recollected. This negationof the present
and of represe~tation finds its positive fonn in pro.imi!Y, aDCI
respo_nsibilicy
siibslltution~To.ismakes it different from the propositionsof negativetheology.
'Toerefusal of presence is converted into my presenceas present,that is, as a
bostagedelivered overas a gift to the other.27
Denidahas also carefully distinguished himself from the ethical skepticism that
proclaimsthe ''truth" of the absent Good as lack. "The difference which interests
mehere is that-a formula to be understood as one will-the lack does not have
its place in dissemination. " 28
The Recasting o the Story
by Feminist Critical Legal Scholars
A second version of the significance of the "postmodem" deconstruction of
foundationalist philosophy has been defended by writers in feminist jurispru-
dence. Unlike the "irrationalists" in the Conference of Critica! Legal Studies, the
feminist writers do not defend ethical skepticism. Toe Good is not represented
asabsent, but as the recognition and acceptance of difference beyond any attempt
tocategorize others from a universal vantage point. 'J!I Rather tban try to replace
k&..al...P:Qfil!.i~!sm
with explicit ethical princip_les,_
..we_S~Ol!ld)~_s~ simply
judiciaf diSCretion as a better way to respect differeoce. Differ*
f1lio.iHty..or
ence,it is argued, belies the attempt to identify universal conditions of .equal
petwnbood_It certainly belies the legitimacy of an appealto_the ID the.
strongsense as an irremissible necessity for ali subjects. But 1t also rejects the
move to achieve universality even within a particular culture. Tbe ad~on of
legalPrincipies that "universalize" within a particular culture would still, so the
81'gumentgoes, lead to a formal approach that is reductionist. Norcan the la':of
thetranscendental ego replace the appeal to the Good. Toere are only pers~ves
1?
represent different viewpoints. The best the judge can do is to to sens1ttvely
WCJ.gh each competing perspective, taking each seriously 1;.fusmgto condemn
anyof the competing perspectives as unworthy of attenbon.
~~ritique o the Feminist Critical
'"'WOD o the Story
There is an important truth in the insistence that the judge must reco~~ _her
""
8 Ibe
J>erspectiveand not pretend to speak as the law oftranscendental subjecbvityf.
1_
Ul
problem, of course, is that we cannot escapethe c ondemning. . p.lWer. o
loil\V.Lan,1, l . . . d. tes ne-- ..t.ve mterpretabOO
.. exc us1onary When the Judge vm 1ca o uvu....... .
OVer nL . ting perspecilVCS.
~vu.Jer she necessarily delegitimates one of compe . ves
1brouCover has identified the silencing of competmg normaUVe not
gh legal decision making as the ''jurispathic" aspect of law. Cover
 104 I The Philosophy of the Limit
The Good, The Right, and legal lnterpretation ! /05

believe we can escape this "imperial" function of the law in a complex modero
state. fear its oppressive power to obliterate difference. The attempt at direct tran~la~ion
of the ethical relation into the sphere of law misunderstands ce~tral .ns~ght
lt is the problem of the multiplicity of meaning-the fact that never only one of Levinas' philosophy of altemity. The ethica_l_~elatione~en as 1t~ an 1rrem1ss1ble
but always many worlds are created by the too fertile forces of jurigenesis- oecessity cannot be fully enacte;d_in _t_~eactual. The etfncal relatmn can only be
that leads at once to the imperial virtues and the imperial mode of world COnceivedwithin time as a diachronic "power." As a result, the G~ ca~ never
maintenance ... Toe sober imperial mode of world maintenance holds lhe be fully enacted in space. That is why as a prescriptive command 11pomts ~s
mirror of criticaJ objectivity to meaning, imposes the discipline of institutional toward the future. The Good can only be translated differently bec~use. t~ere is ,
justice upon n01'IIISand places the constraint of peace on the void at which not state of affairs that the Good mandates as its exact fulfillment. Stlll, 11is only
strong bonds cease. 3 '
within a specific situation that we can meet our responsibility to the G~. Toe
As Cover points out, the "jurispathic" aspect of law is necessary for the creation specific situation in the legal context is what gives us the contextual umversals
of a legal system that can effectively operate as a state-organized mechanism of embodied in Law understood as the nomos. Of course, i~ is tru~ that legal
socia] control. It is, also, however, part of the development of law as a IIOl1l(JS principies inevitably categorize, identify, and in t~at sense v1olate d1fference
which creates a normative legal world and which helps to re-engender a sense of creating analogies between the like and the unhke. If we cannot esc~pe. thi
belonging to a "community." Toe power oflaw to establish "universal" principies violation of difference in a legal system, however, we can still d~velop p~ncip~es
within a community both represents imperial power and its ability to regenerate that minimize it. E.ven so, Iaw is inevitably unfaithful to the e!h1cal relationt1p.
the paideic pattem of Iaw making as world of shared precepts. But if law inevitably violates difference through the establishment of s ami
meaning and generalized standards, should we not then attempt to escape from
Toe paideic is an tude on the theme ofunity. Its primary psychologicaJ motif legality altogether? Levinas clearly thinks not.
is attachment. Theunity of every paideia is being shattered-------shattered,
in fact,
with its very creatioo. Toe imperial is an etude on the theme of diversity. lts
primary psychological motif is separation. The diversity of every such world Tbe Inevitability and Ne1:essity
is being consumed from its onset by domination. Thus, as the meaning in a of Law and Legal Principies
nomos disintegrates, we seek to rescue it-to maintain sorne coherence in the
awesome proliferation of meaning lost as it is created-by unleashing upon the H
Toe answer for Levinas is as follows: e renun s
d us that. we .
areand
inevitably
not just
fertile but weakly organized jurisgenerative calls an organizing principie itself fatedto fall into Iaw, understood now as a system of leg'.11pnncip des 1 Why
incapable of produciog the nonnative meaning that is Jife and growth. 32 .. . . . 'b d redistribute vwlence an power.
as a pos1hv1st mechan1sm to d1stn ute an . Oth Th entry of the
t aJOne w1th
Is this fall inescapable? 1 am never JUS .
the er.the need
e make
1t is precisely the "jurisgenerative" power of law to create normative meaning 10
that makes law other than a mere mechanism of social control. Since tbe ''ju- third is inevitable, and with the entry of. the thirdo~~~ividuals within the
rispathic" aspect of law inheres in its "jurisgenerative" power to create unifie.d
comparisons and to synchronize the competmg deman 1
meaning through the establishment of generalizable or universalizable standards, space of a given legal system. ali t w and the establish-
I
we cannot escape the comparison of competing nonnative visions of the good The thirdpart_ interrupts the fac~tQ_:,fc_~.
But thec ieempm cal necessity
-~- -~ tood un ortuna
ment of rights should not be unders as an
expressed through the appeal to legal principies. Nor do we want ali differeoces
given that we are ne ver just alone with the Other
to be recognized by the law. To do so canies within the very real danger
of legally freezing well-established hierarchies. Indeed, we do need principies . Id be an empiricalfact, and thar:my
It is not that the entry of a third P.artywou .ned to a calculusby the force
developed through the appeal to contextual universaJs by which we distinguish responsibility for the other fiods 1tselfconstral ...~" the other ot,sess
between difference& we want to be recognized by the law from those we condemn. . . . f the Othe ali the others u1411
of things." In the proxuruty o r' . . demands measure and
But of course, the question remains: Do we need an appeal to the Good wbicb me, and already this obsession cries out for JUStace,
34
is the universal, in Levinas' sense? knowing, is consciousness.
Before retuming to that question, we can still insist that the mistake made in . . proceeds from the irreducible
this version of feminist jurisprudence is to try to directly translate into the practice The aspiration to a just and egal1tanan sta~ hasher claim, anclher claim
responsibility of the subject to the Other. Each bervindicatedeven if they must

,,
of legal decision making the "postmodem" insigbt that the Good is not, as Hegel
33
tried to show in his Logic, fully actual in the real. But it is precisely because
must be addressed. Ali claims, however, c_annot through the maze of competing
beheard. We need legal principies that guide u~ cannotbe vindicated. "The
the Good can never be simply identified with a state of affairs that we neednot
legal interpretations, precisely because ali clauns
~.
 The Good, The Right, and Legal Jnterpre/ation 1 !05
104 I The Philosophy o/ the Limit

. df The attempt at direct translation

believe we can escape this "imperial" function of the law in a complex modem fe.arits oppressive power to obhterate 11erence. 1 . . ht
f derstands the centra ms1g
state. of the ethical relation into the sphere O 1aw m,su? . . n ,rremissible
Th thical relat1on even as I1IS a _
ofLevinas' philosophy of altermty _!:.~---- Th- - - .e -- -:ltion can only be
It is the problem of the multiplicity of meaning~the fact that never only one . be f 11 ted in the actual. e eu11ca re
but a1ways many worlds are created by the loo fertile forces of jurigenesis-- necess1ty c11'not_ u_ Y.J;!l).ac ~--.- -- -- - ,, lt the Good can never
~- -. -- . . . d. hro ,c"power Asaresu,
that leads at once to the imperial virtues and the imperial mode of world conce1ved w1thm time as a ,ac n . . command it points us
. Th hy as a prescnp 11ve
maintenance ... The saber imperial mode of world maintenance holds the be fully enacted m space. at is w translated differently t,ecause there is
mirror of critica! objectivity to meaning, imposes the discipline of institutional toward the future. The Good can only be ts exact fulfillment. Still, it is only
I
justice upon norms ami places the constraint of peace on the void at which not state of affairs that the Good mandates as ibility to the Good. The
strong bonds cease. 31 within a specific situation that we can_meet 0 W: respon~ contextual universals
specific situation in the legal context IS what giv~s us e it is true that legal
As Cover points out, the "jurispathic" aspect oflaw is necessary for the creation
embodied in Law understood as the. nonws . Oh ~ou.:; violate difference by
of a legal system that can effectively operate as a state-organized mechanism of
principies inevitably categorize, i~entify and m ~; ~f we cannot escape this
socia] control. lt is, also, however, part of the development of law as a nomos creating analogies between the hke and the un e. an still develop principies
which creates a nonnative legal world and which helps to re-engender a sense of
violation of difference in a leg~ srste~, howe;~:~1~0 the ethical relationship.
belonging to a "community." Toe power of law to establish "universal" principies 81
that minimize it. E.ven so,_law 1S:~nevttabl_yun h th eStablishment of shared
within a community both represents imperial power and its ability to regenerate But if law inevitably violates d1fference throug the attempt to escape from
the paideic pattem of law making as world of shared precepts. meaning and generalized standards, s~ould we not en
The paideic is an tude on the theme of unity. Its primary psychological motif legality altogether? Levinas clearly thmks not.
is attachment. The unity of every paideia is being shattered--shattered, in fact.
with its very creation. The imperial is an etude on the theme of diversity. Its Tbe lnevitability and NeceMity
primary psychological motif is separation. The diversity of every such world of Law and Legal Principies
is being consumed from its onset by domination. Thus. as the meaning in a
nomos disintegrates, we seek to rescue it---to maintain sorne coherence in the
. ds us that we are inevitably

The answer far Levmas ts as O
f llows He rem.mf al principies and nol JUSt
awesome proliferation of meaning lost as it is created---by unleashing upon the as a system o Ieg
fertile but weakly organized jurisgenerative calls an organizing principie itself fated to fall into law, underst ood now . 'b te violence arnipower. Why
incapable of producing the nonnative meaning that is life and growth.. 31 as a positivist mechanism to distribu~ and re:~s:; the Qther. Toe entry of the
is this fall inescapable? 1 never JUSt alo th third comes the need to ~e
lt is precisely the ''jurisgenerative" power of law to create norrnative meaning third is inevitable, and w1th the entry of. edemands of individuals with1n the
that makes law other than a mere mechanism of social control. Since tbe "ju- comparisons and to synchronize the competmg
rispathic" aspect of law inheres in its "jurisgenerative" power to create unified space of a given legal system. the all to law and the establish
meaning through the establishment of generalizable or universalizable standards, Toe ~j_fi:tel'l}l~s_the faCC:.t9:"f'~~asB:unf~nate empirical necessity
we cannot escape the comparison of competing nonnative visions of the good ment of rights should not be understood
expressed through the appeal to legal principies. Nor do we want all d.ifferences .
given that we are never JUS on
. t al e with the Other.
to be recogniz.ed by the law. To do so carries within the very real danger . would be an empiricalfact. and that my
of legally freezing well-established hierarchies. Indeed, we do need principies It is not that the entry of a third party trained to a calculus by the "force
responsibility for the other finds itself con~ the olherSthan the other
developed through the appeal to contextual universals by wbich we distinguish
of things." In the proximity ~f the _other' for jusce, demands measure and
between differencei we want to be recognized by the Iaw from those we condemn. me and already this obsess1on enes out
But of course, the question remains: Do we need an appeal to the Good which ,
knowing, is consciousness.
" the irreducible
is the universal, in Levinas' sen.se? . al an state proceedsfrom
h Oth hasher claim, andher clatm
Before returning to that question, we can still insist that the mistake made in
this version of feminist jurisprudence is to try to direcrly translate into tbe practice
Toe aspiration to a JUSt and eg Jtan
responsibility of the subject to the Other Eac
must be addressed. Ali claims, bowever,
not:: vindicatedeven if they m~st
mroughthe maze of compehng
of legal decision making the "postmodern" insight th.at the Good is not, as Hegel
tried to show in his Logic/ 3 fuUy actual in the real. But it is precisely becauSC be heard. We need legal J>?nciples that ~
legal interpretations, prec1sely t,ecause
:;:ns
1
cannotbe vinclicated. '1be
the Good can never be simply identified with a state of affaiIS that we nc:ed not
 The Good, The Righl, and Legal lnterpretation I 107
J(Xj I The Philosophy of the Limit

decalogue scripture. Once understood in lhe contextof the narrativeslhal give

extraordinary commitment of the other to the third party calls for control, a searcb
it meaning, law becomes not merely a system of rules to be observed, bu! a
for justice, society and theState, comparison and possession, thought and science, 8
world in which we live. 3
commerce and philosophy, and outside of anarchy, the search for a principie.""
A principie as I use it here is not a rule, at Jeast not as a force that Jiterally
pulls us down the tracks and fully determines the act of interpretation. A principie Tbe Role of Practical Reason ln Law
is instead only a guiding light. lt involves the appeal to and enrichment of tbe
"universal" within a particular nomos. We can think of a principie as the light t J a shared social reality. But as
In this sense, Iaw is embedded m on o ogy, m . .. . .
that comes from the lighthouse, a light that guides us and prevents us from going
36
the nomos it is also a "critical" point within ontology. Th1s cnt1cal pomt is
' th s to meet the command Be
V:~'
in the wrong direction. A principie, however, cannot detennine the exact mute allows us to engage in the struggle WJ m our 00 "! . .sel th rit"1cal
we must take in any particular case; it does not pretend that there is only ooe ust " 39 Thematization then, is never just descript1ve. It is preci Y e c '
J ' d ble assessment of competmg
right answer. It can, however, serve to guide us, by indicating when we are going normative dimension of law that deman s reasona . th tencc
in the wrong direction. If a principie cannot give us one righl answer,n it can legal principies. To quote Levinas, "Reason consists in en~unng. e_coex1s .
1
help us define what answers are wrong in the sense of being incompatible with of these terms the coherence of the one and the other des~,te their differen~thoe, ~
' . th t of the d1fferent terms w1 u
its realization. Forexample, we might not ali agree what the principie of reciprocal the unity of a theme; tt ensures e agree1?en Id '"'R n is not understood
symmetry means, but given its historical significance as the expression of the brealcing up the present in which the. ~eme is he . . easo But it is a serious "
breakdown of the vertical relations of Jaw, we can rule out certain legal outcomes to ~~n<!J_~~principles in the ~d1uo~al ~eo-~sense.
as incompatible with its realization. An example which Hegel himself often used mistake to cxm.f'seLevinas' pos1tmn ~1th urauonahsm. . .
is the legal rejection in modemity of aU fonns of indentured servitude. Of coursc:,
- ---- --- .. -. , . . .-h,, calledupon toexerc1se as anessentla 1
In Iaw, rea~on_1.sa _'pract1calfai~ .. we.~ of courseif reason cannOI
this mcxle of interpretation is circular, but the very structure oflegal argumentation upect of th,ttask of elaborating leg~ pnn~tples. B~u .;.,peal
the to the Law
is that we argue from within the nomos of law. As for which principies we ground legal principie in the foundattonahst sense t the force of the
ultimately adopt within the nomos, we are left with the process of pragmaric of the self-legislating subject, ~e must be_ready ton in othe~ words, demands
justification based on the abilty _of a principie to synchronize the competing better interpretation. Toe exerc1se of pracu.cal reaso 'th lt dernands that we
universals embodied in the nomos. A jurisprudence of principie, tben, can survive that we continually engage in dialogue with one e~ tbat tbematization
the indetenn.inacy thesis which reminds us that a rule cannot be fully detenninative make .Derridean double gesture. w-:,.0
.::-<L~-~ogn:m of justice can.pretend
of the outcomeof a particular case. inJ!w _i_snecessary and that_i:i_o !!~!!tive science. ""1 We must
This process of elaborati.ng principies of justice involves what Levinas calls ~last w.ordas..tll.e tru1:11-
9(.a _rec~nt state of legal affairs, not in
"thematiz.ation" in the said, tbe world of established representational systems. ID encourage the process of interruption of ~y c . but in the nameof the
l..evinas, tbematization is a term of art meaning the syncbronization of the Good the name of the "irrationality" of competing ~t~este, . the acts of judgment
with Being in such a way as to purportedly deny the diacluonic force of time. h . hd ds that we partmpa m
exercise of reason itself w 1c eman . deandouble gesture invites
But we can also expJain thematization more prosaically as tbe need to souOO thc to which the command "Be just" calls us. The Dem Toe commitme.01 to
common themes within the nomos so that it is possible to appeaIto contexrual 00 mmitment to reason. 2
us to new worlds as part of the _very al .bility to the Otber.'
principies. This attempt to sound the common themes still has the effect of ~nis essential to the exe~1-~ of ethic -~--- ---- ----
synchron.izing the Good with Being as a given state of legal affairs, becaUSC it
appeals to tbe Good as it has manifested itseH, even if only as unrealiz.ed porential
Wby tbe Concept of Postmodernity .
of the legal system. An essential aspect of tbematization is the practical use of
is Rejected by Both Derrida and Levmas
reason to synchronize the competing demands and perspectives of individuals
through the appealto legal principie. Reason, in otber words, is essential to . .thout a fouodationaHst concep-
thematization and thematization inheres in the narratives we develop to justify a .
Yet both Levinas and Derridaremtnd us thatwi .
' K the Hegehan sense,
me"secularization"
particular state of legal affairs. As ,RobertCover has explained: tionof reason in eitherthe neo-. iu.inanor defining secularizationas~
of tbe modem world will remam mcompJete. I am ~-- and
exists apanfrom the oamllives thal
No set of lega] institutioos or pl'CSCriptions ~ss_ '~h~ ~eas-~-~-~-w~~ge Jt is tbe reminder of
locate it and give it meaoing. Far-every coostitutioo tbere is an epic, for each becom
ccess1ble. to_h~-~~ @de!_---------
 The Good, The Right, and legal fnterpretation I 109
108 J The Philosophy of the Limit

~e inevitability of incomplete secularization that has led to the accusation that then no interpretation can theoretically win out, shutting of~ from the ~ery
"postmodemity" is the "premodem" in disguise, and therefore an mhere~tly beginning the need for practica! debate and assess~en_t. Demda h~ certamly
conservative intellectual movement. lt is, of course, true that both Derrida and shown us that the claim to inherent theoretical supenonty of one eth1ca~system
Levinas reject the organization of time detennined teleologically by an idea of over another is unfounded. But on the interpretation l am offering here, it -:vould
,emancipation. If one identifies modemity with a teleological organization of time also be unethical to theoretically reduce to an inferior position the s~ndmg of
To ea] hallenge we are left w1th as \aw
'guided by an idea of emancipation, then, and only then, can Derrida and Levinas competing normat1ve perspecttves. e r e . ,,
be understood to reject modernity. Ironically, the very disjuncture between the
professors lawyers, and judges in the wake of "deconstruct1on has been eflo-
' . .. h II pres nted by the absence o a
modem and the "postmodem" implies the very linear, narrative organizatio"-of quently summanzed by Cover Toe e a enge e . . f
. . . . tead the need to mamtatn a sense o 1ega 1
time that both thinkers reject. Both thinkers recognize the necessity of theiaiil.a- smgle 'obectlve'
J
mterpretatlon 1s, ms , .- f nonws over
tion as the projection of ideals and principies of justice. Indeed, Derrida has mean!ng despite the destruction of any pretense of supenonty o one .
aOther.'4 7 Toe truth of "Grundlosigkeit" is that we t~ forever left with
insisted that there is nothing less old-fashioned than the traditional emancipatory
ideals. 44 It would, then, be more correct to envision the relationship between the
tha..~lallenge. We are called to remain open to the mv1tat1on to create new
modero call to the realization of universal principies of justice within the nomos worlds.
and the "postrnodem" insight that we can never escape the interplay of the three
realms as a "laying beside" essential to the practice of dialogic fallibi..lism."' lt Tbe Divergence Between Derrida
reminds us of the status of the stories we tell in order to "ground" our system of and Levinas Retbought
justice. Toe stories we tell to justify one state of legal affairs over another are . h between Derrida and Levinas
7 I llave so far emphasized the clase relatmns 1P th. al
just that, stories. They can only be judged practically. - . 15 d m lly On an e ,c
\_ that is evident once the philosophy of the lumt rea . e ~ctabad im,tai,onof
. . . d marlcthe mev1 1e e I
readmg, the ph1losophy of the lurut oes no 1 . . d '-tionalism
The Ethical Significance of the . th byss of skept1c1sm an .....
Recognition of Incomplete Se<:ularization
ontology m order to drop us mto e . ,, dence" within the
Instead, the philosophy of the limit exposes eth1cal transc;nt th same is not a
Vl'TV iteration of the same. Derrida continuously shows us . a e ad Le .
~-., al stake to re vmas
But the crucial message inherent in the recognition of in complete secu!arization totality closed in upon itself. As we have seen, it IS. so a truB . Levinas seeks
as if the Good was the absolutely Other. In Otherwise Tha.n emg, .d Toe Good
is even more explicitly ethical. Derrida, in particular, always wants to remind
us, with Cover, of the "jurispathic" aspect of any claim to nonnative closure,
particularly in a legal system. Derrida is only too aware of the power of law to
..........
t~-in~icate just how the unsay~le ec~oes iil the
"1s" m the day-to-day confrontation wtth the
--

?ilier.
f;:t:
S f the sai .
most recent essay on
f S in Derrida, too,
Lev Deni.da clearl echoes the cry of eth.ical revolt o . ay g. . 48
enforce institutionalized legal meaning. Once we correctly interpret the ethical - J,IlllS,.. Y ali 10 the Saymg of the said.)
concem ofthe "double gesture," we can hear the message in the deconstruction is concemed with heeding the echo of the c th.nk that is rarely brought
1
of Rousseau 's "delusion of presence mastered" other than as a defense of etbical But there is a subtle difference between the two ersbe alled "deconsnuc-
. . f hat-has-oolllCto e
skepticism, because all ethical systems are inevitably opened in violence. "There to hght because the ethtcal message O w . c1a ur latest "irrational-
. ,, h erpretauon of Dem as O
I
i~ not ethics without the presenfe_Qf the other, but al~(?,_~d con~equently, Wlthout t1~'!___!!.~_ ~n obscu.red by t e m~ . . reted 10 show that the very
</ absence, dissimulation, detour, difference, writing. Toe arche-writi_ggffiJtie i_g." Derrida's first essay on Levmas IS ~ften mterp f the break up of the
The
?Jlgin of morality as of imrnora.lity.
opening. " 46
ri.Oneihicaf opening of ethics. A violef!t nece~siti_esof the )anguag~ in .which i:evm;:;::: =nt in the Janguage of
- --- dommatlon of the Logos mev1tably remscn. . Derrida's emphasis, as
De .d d s make thts pomt. 8 u1
It is, of course, possible to interpret the above passage to indicate that we can onto 1ogy. Of course, m a oe . .table fall back into ontology.
ne ver "ethically" choose between competing nonnative thematizations, since they we saw in the last chapter, is not just on the 1_nev~ . 1 is dragged back into
ali originate in a "nonethical opening." It is this interpretation of Derrida that has He is not concemed just to show us that L,evmas proJdeec .. of the Same. Toe
. tbe "self-transcen nce
led thoughtful commentators of Levinas to argue that Derrida is deaf to the ethical "is." Instead, Derrida emphas1zes . E if Levinas is readto displace
voice of Saying. But I want to give a clifferent emphasis to the above passage. t~~on of the same "is" as transformat:l~n. ve:nce-and I believe this is now
If ali ethical tbematizations are "equal" in the sense that they cannot clam to be the rigid dichotomy of transcendence and imman auention on the self-
.k Derrida ocus our
grounded in first principles, then we must always recognize the "equal claim" of be should be read--he does not, 11 e
competing interpretations to be heard. If ali interpretations are "ungrounded," transcendence of the Same.
 1JO I The Philosophy oj the Limit
,1
The Good, The Right, and Legal lnterpretation I J11

'Iransformative Possibility
through tbe lterative
~rrida always seeks to protect the radical difference of the not yet of the
Say1~~. but he also exposes the iteration of the Same as an infinite spiral of
poss1bihty. 1 am aware that Derrida is rarely read as a thinker of transformative
possib~Iity lndeed, what I am offering is an interpretation of deconstruction as
the phdosophy of the limit. But I believe that the interpretation I offer is ''true"
to Derrida 's engagement with Levinas. "Deconstruction," then, is not the witness
tp ~e paralysis of "repetition." To come around aga.in is to re-evolve; in thk
spectfic sense it involves a re-evolution. Derrida's focus on ''the deadly work of
p~ysis" does not mean he thinks we are helpless. Instead, he makes us think
dtfferently about the beyond. Iteration "is" as possibility because a system of
-representation given to us in language cannot be identical to itself ancltherefore
trul~ a _totality. This possibility is an "opening" to the beyond as a threshold we
are mv1ted to cross. As "a science of the threshold " deconstruction dares us to
the ~-o~mitment to "cross over" and perhaps, by so 'doing, -i~~void the- of
havmg the door of the Law of Law finally shut in our faces. so Derrida, in
other words, can be understood to more successfuUy displace the dichotomy of
transcendence and immanence througb the exposure of tbe "im.rnanem:e:_ of
ethicaI alternity in the iteration.
Derrida's Significance
Cor Legal lnterpretation
established,we must look forward to what "might be." As we do so, we represent
wbat"might be." Without a simple origin the very process of discovery of legal
principiesfrom within the nomos will also involve invenlion. 1t is this specific
appeal to the "ought to be" that demands a vision of the Goodthat goes beyond the
appealto convention. Toe "origin" we evoke in our thematizations is ultimately a
~ntat!_on of the future. Legal interpretation -d~m1nds.that~e _rememberthe
future.
Thus, the deconstructive emphasis on the opening of the ethical self-transcen-
deoceof any system that exposes the threshold of the "beyond" of the not yet is
crucialto a conception of legal interpretation that argues that the "is" of Law can
oeverbe completely separated from the elaboration of the "should be" dependent
onanappeal to the Good. Ethica1 altemity is not just the command of the ~,
it is also the Other within the no1110s "ihliiViteSus t~ .n.e~_WQ.flds.
..mL~ID!Dds
~ffu.sformation is not onl}' possibl~,. it 'i(jn~~i~~le. . ..
Therecannot be the radical immanence insisted upon by legal pos1nv1sm,
becausethe "is" of the so-called legal system is nevera totality that geoerates its
ownevolution. However even if we agreed that Law as a system of norms
demandedan appeal to th~ Good, we would still be within legal posi~ivismif the
nonns could be mandated as a self-enclosed system. Derridathen, is extre~1y
belpfulto us in the development of an understanding of Law as the nomos_which
is not reducible to the objective meaning of establisbed legal conv:nnons-
becausethe good of the nomos is itself always undergoing transf~no~
wbich,at the same time, is not just a utopan projection from the outside. Agam,
to quoteRobert Cover:

L.il.W may be viewed as a system of tension or a bn ge Jinlcinga conceptof a

,_
This displacement is important in the legal interpretation of a system of nonos. reality to an imagined altemative--that is, as a connectiv~be~~o two s::s
Toe Good, as it is interpreted as the yet unrealized potential of tbe nomos.is of affairs, both ofwhich can be representedin their nonnatJ.vesignificance .Y
never simply the mere repetition of conventional nonns, because there can be no ~-
u.uvughthe devices of narrative. Thus, ~~------.-- -~ h: case
run elemeotof a nomosIS
mere repetition. In this sense, the Good or the L.aw of Law cannot be cooceived ~Q~non Geor_g_e "alteip.!_tf: ~-
Steiner h~ !f,!._1;,eled ; --- . -'
as the truth of a self-enclosed system which perpetuates itself. 1be disseminatiOO tbecounter-f~tu.-Pro?OSiliOflSimages, shapesof will ande~asion
we charge our menta] being and by means of whichwe build,~ e angmg,
WI: w~h
of convention as a self-enclosed legal system does not leave us with a fundameota1
lack, but with an opening. What I am suggesting is that tbe dissemination of largelyfictive milieu for our somatic and our socialexisteoce.
convention, through diffrance as the nonfull, oonsimple, and differentiating,
origin of differences, disrupts the cJaims of ontology to fill tbe universe, and lbis link between the Other the more of a given state of legal aff~,
the "--L ' thro gh tbe delimitabOOo
!salsof
more specifically the legal universe. This is tbe theoretical sigDificance..of Derri uu;:mold.w~ are constantly invite~ to ... u tations. nis link.
da's ~jection of the appeal to community standards as tbe replacement for ontology,wh1ch m tum creates the openmg for new m~ tiOll and
(oundationalisrn. ~~shold," is both the invitation to cross over, the ~-1 t~
10
We can now think. differently about the ethical significance of the rebellioo ~haf!ier to full accessit,il!tJ~ }\s tit>th_
a ~er a_nd an ".;:.on~ ~ruc
against community I discussed in the fi.rstcbapter. 1bere cannot be tbe effective ~J.ivmen. This call to interpretation 1s contmuallYec -"=" not _____,
closure upon which the communitarian insists. 1be Good is beyond any of its
tion "A =
. s m La Folie du jour by Maunce Blanc O '
h t the law .....-. 00DJIWIIIU
mandstraDSference.
current justifications. As a result, when we appeal "back" to wbat has becO "ilhoutdemanding to be read, decipbered, translated. It de
Thedouble bind is in the law. ,,S2

n 5
 The Good, The Right, and Legal Jnterpretation I I 13
J 12 I Tire Philosophy of tire Limit

th rift through the punish

The Answer to Robert Cover of fate " in which the community seeks to overcome e . . d h h
ment of the victim, who is respected asan ethical being, prec1sel_yi_nanrtedt~onuthge

As we have seen, for Cover, the "double bind" in the law includes the "ju-
hispunishment. Thecriminalisanethtca
be.
_mg_smce.'
he too is mse
L h I
fLawas
. f th ealized Good. Legal interpretation ,s fidehty to t e aw. o
rispathic" aspect of law in the very search for and assertion of "paideic" unity re1gn o er . . . al Toe Hegehan system
the realized Good enacted even m the cnmm sentence. Th .
within the community. Law crea tes a norma ti ve world by imposing itself in the d cannot be healed. us,
pretends to heal the rift that Cover want_sto_remm u:use it u rts to heal the
name of the reconciled whole. But if the "reconciled whole" is no longer thought for Cover' the danger of legal interpretatmn is th~t becf our st.c:fied community, 4'.
to be the truth of the actual as in Hegel, then it is always a myth. lt is madetrue rift, it blinds us to the wound of the fragmentatton . . .
through the very power of the state to assert its meaning and vision against that as we violate the perspective of the Other in the cnmmal sentence.
of other communities. 'There is, however, danger in forgetting the limits which
are intrinsic to this activity of lega] interpretation; in exaggerating the extent to

..
Law is never justa mental or spmtua1 act. L-:~
A al world is built only to the
t that place ll\lUleson e
th ,ne Toe tortureof

which any interpretation rendered as part of the act of state violence can ever extent that there are conurutmen s . t f the organized violence of
constitute a common and coherent meaning. "' 3 lhe martyr is an extreme and repu!sive 1:111 0
itments of officials are
institutions. lt reminds us that thf mterpretivecomm
Toe "jurispathic" power of legal decision making concemed Cover in bis
realized, indeed, in the flesh."
"Supreme Court Foreword," but there he saw not just the necessity but the
. f ial control operates through the inscrip-
inevitability of interpretation. But, in bis essay, "Violence and the Word," written The legal system as a mechamsm O . soc. . 56 A d yet what Cover ai least
shortly before bis deatb, the mythic status of any narrative of a reconciled whole . of the sentence on th e b ac ks of 1ts v1cttms.
bon -. n . , al'ty in the name of
led Cover to conclude that the very act of interpretation m_asked the _v!(!l~f . d" that the appeal to umvers I
recognized in bis "Forewor , was . f al - ions is not only inevitable,
tl:!_eimposition of the legal sentence. Cover used the example of the criminal a shared good embodied in the narrattves O Ieg opm os Therefore we cannot

e ..
defendant to graphically make bis point that the "community interest" with which ftheLawasnom '
it is also essential to the creatJon f the power of the state led
the criminal himself was supposed to identify was clearly a myth. The criminal -
escape the task of mterpretat1on. 0 ver's susp1c1ono
hared aning without violence m
.
"goes along" with the sentence not because he recognizes the validity of what is him to conclude that we can now only fin~ s me . -- through force.
happening to him in the nam.e of a shared communal standard of the Good, but .. . se their nomosagatns1uu ....,., .
smaller commumt1es that cannot impo h f. "paideic" unity, even m
because of the enforcement power of the state. But this belies bis own insi~t that the v~ry: .. - :pathic.,,
small communities, is exclus10nary and, m ' JU
Revolutionary constitutiona1understandings are commonly staked in blood. In
them, the violence of the law takes its most blatant form. But the relationship
between legal interpretation and the infliction of pain remains operative even
Tbe Derridean Gesture and the Projection
in the most routine of legal acts. 'The act of sentencing a convicted defendant of an Horizon of the Good
is among these most routine of acts perl'onned by judges. Yet it is immensely . . h Derrida on the other hand' recognizes
rcvealing of the way in which interpretation is shaped by violeoce. Fust, This is the profound sense m whic ' f Law of the ethical relabon.
. d" of the Law o , th.
examine the event from the perspective of the defendant. 1be defendanf s world we cannot escape the "doub Ie b m . appeal to justice, and is
is threatened. But he sits, usually quietly, as if enga.gcd.in civil discoutse. lf !Toe Law of Law calls us to interpretatmn throughfthe,n mmunity which is itself
convicted, the defendant customarily walks--escorted- prolonged coo- . thgoodo oo , .
:process of interpretation also proJects e h t the good of the commumty
finement, usually witbout significant disturbanceto the civil appearanceof tbe
event. lt is, of course, grotesquc to assume tbat the civil facade is "voluntary"
;only an interpretation and not the last word
011

w chapters justice understood
4 :actually could be. (As we will see in ~e Dext~o of the ~mmunity or of the
except in the sen.sethat it represents the defendant' s autooomous recognition
as an aporia is the limit to the estabbshed g be the "last word," once we
of the overwhelming array of violence nmged a.gainsthim, and of the bope- . . d rstood oould not .d the
lessness of resistance or outcry. so nomos.) Indeed, 1ust1ce so un e bl' hed pn"nciple cannot avm
"b k" to esta 1s
understand that even the appeal ac . the . nis not simply there. We wt
n
Toe "good" of the community is oot tbe "good" of the criminal. Yet, of course, projection forward of the "might be'.'
si_nce
0
recognition of the origin of
if tbe Law of Law bad been fully actualized, tbere would on1y be tbe ooe sbared return to a discussion of the legal sigmficance want to emphasize that the Law
1
Good, wbich is wby Hegel insisted tbat tbe criminal could be "reconciled" to bis the lega1 system as myth in chapter ~- For now_. throllghan appea1to the ~-
sentence. According to Hegel, both tbe victim and tbe criminal experience die of Law demands that we justify our mte~C:u be said of legal iorerpretation.
rift in the community caused by tbe criminal act. This rift unleasbes "tbe causality Wbat Derrida says of translation could equ y w
 The Good, The Righl. and Legal /nterprefation 1 115
-
114 I The Phi[osophy of the Limit
,
'd th abuses of an apocalyptie
Translation, surely, as holy growth of languages, announces the messianic end,
tbe humor, that must be kept if we are to avot e
but the sign of that end and of that growth is "present" (gegenwiinig) only in ~c.59 . . en toreadthetestamentofthe"pos~"
It would be a senous m1stake th ' th La f If-Jegislating subJecbVtty,
lhe 1cnowledgeofthat distance," in the Entfemung, the remoteness that relates
:C
us to il ... Yet it puts us in contact with that "language of truth" which is the
"true language" ("so ist diese Sprache der Wahrheit-die wahre Sprache").
Thiscontact takes place in the mode of "presentiment," in the "intensive" mode
story of the three realms, the Law of Law
and the principles of a leg~ syslf:m, as. the:
Of course, to tell a story is to sule wtth ac fi
1
=:ic w inevitability of nihilism.
allegory which ''pretends
fmemory, the synchromc
thal renders presenl what is absenl, that allows remoteness to approach as
remoteness,fort:da. 57

know how to tell stories," rather than the other gure risk the story in order to
,.i But then we mus 1 . . . The
allegory, ''that feigns amnesia. . . decOJ)StrUctionwith nib1hsm.
count_erthe mistaken account that identl es . 6 fthe "ethical" is necessarily
But the "contact" is still there; at the same time, we cannot know its ultimate
phil~phy of the limit reminds us tha1,..~~~anmtgfuollypresent to the mind as it
meaning. Yet, when one legal interpretation is vindicated as to what constitutes . .
mto the future becaus .
the good ofthe nomos, it is imposed upon the other as ifthe Good, in the strong
sense, had beenachieved. lndeed, as Cover reminds us, this seeking to impose
displaced
is in Hegel's system. In the next cha~ter I fscr J
. ss ust how central a concepllOD
system. To summarize the
of time is to a positivist understandm~ o . a eg formation. Thus, we needto
or universalize one's vis ion of the Good is the central characteristic of redemptive 1
central point of this chapter: l':!~uon_ ~ - for the direetion of that
legal movements. Cover defines redemptive legal movements as foUows: 'ble as we m...,Ar- f
remember that we are responsi .bility implicit in every act o
I shall use"redemptive constitutionalism" as a label for the positions of associa- transformation. We c~n~ ~scape our respo~nds us of the positivist fallacy
tions whose sharply different visions of the social order require a transforma- interpretatioo. Toe deltnutatton of ontology g mechanism. We are
to us as a self-perpetuattn
tional politics that cannot be contained within tbe autonomous insularity of the that the legal world ts JUStg1ven .. f ur responsibility for the nomosas
O
association itself .... Redemption takes place within an eschatologica1 scbema left with a reminder of the inescapabiltty O
that postulates: (!) the unredeemed character of reality as we know it, (2) the it is perpetuated and thus transfonned.
fundamentaUy differentreality that should take its place, and (3) the replacement
of the one with the other.

I agree with Cover that the "projection" of a redeemed world and the commit-
ment to realize it in tbis one should be understood as crucial to transformative
lega] movements. This projection clearly eotails the opposition to the current state
of legal affairs. Toe most obvious example of a "redemptive legal movement" is
the struggle to overthrow and outlaw apartheid in South Africa. This movement
does not, it should be ooted, just plead that apartheid is wrong in South Africa.
Itinsists tbatapartheid is wroog, any time 8IKi any place. The resistance movement
does not then appeal to the cultural good of a specific context, but to the universal
Gooo. Apartheid violates the ethical relation as evoked by Levinas. Apartheid
does so now and will do so always. If apartheid werc outlawed, the nonnative
view of the whites who ellforced their legal sentence oo the ftesh of blacks wou1d
indeed be silenced. And this silencing wouJd be violeoce to their "difference."
' But as Derrida, amongst otbers, has reminded us, it is a deserved and necessaIY
"violence" we are called to by any version of tbe Gocxi worthy of its name. As
I have aiready suggested, rernioder.of lb(:_~olent ~rn_g__~f_~~
done to paralyze us. Toe double bind that inberes in the call to legal interpretatioo
means that We nist make a double gesture as part of tbe veiy commitment to tbe
ethical responsibility to wbicb we are called. We must both accept the challenge
of tbematization, including the projectioo of a redeemed world which would
realizethe emancipatory ideals, and acknowledge tbe status of any inteipretation
we offer. Toe .. ~ble gesture" does, llpwever ,_e~_tbe humility and ~.

l
 The Call to Judicial Responsibility I l 17

. . be defined as injustice. l Who is the observcr,

that it can be seen as JUSt, can 10 tum h Derrida calls the aporias of
I 1
who would see the system's att~~pt ~o reslo ';:. w a it is a woman. l will rctum
Justice so as to validate itself as m1ust1ce?. n t is case,
5 to why this observation on
18 1
observer .: ,:v:.~erstanding of the aporias of
For now I want to emphasize that Dem d. f the constitutive force of
Justice cannot be separated from bis un~~:an- m~rthe presence that diffrance
The Relevance of Time to the diffrance, and the deconstruction of the pnvi egmg
f this deconstruction of the
Relationship between the Philosophy necessarily implicates. .
6
Further, once we understand the sigm ca:c\o will help give us the correct
1
of the Limit and Systems Theory: privileging of the present, we can also see w Y. fce andthe phenomenology
understanding of the relationship between law' ts the relationship betwcen
Toe Call to Judicial Responsibility of judging, as the lastchapterhashelped ~s to un . rs and the good embodied in
the Good, in Levinas' sense _0 f the ethtcal re~;u~::; Goodis understood as the
lntroduction legal principies. As we saw m. th~ last c~p 'in Levinas' writing he does not
ethical relation that calls us to 1ust1ce. At tim~sb'l' to the Other and Justice.
Toe central purpose of this chapter is to show why the deconstruction of tbe . . . th ali to respons1 1 1ty
distmgu1sh the Good ' as e e.
the 10 fi .te responst"b'l'ty
1 1 to tite ()thcr. At
traditionaJ conception of time, a conception which privileges the present, can Levinas frequently evokes Justl.ce as ru tite appealto the embodied
ore prosatcally as
help us understand why Justice is irreducible to the pregiven norms of any f
other times he speaks o 1ust1ce m
I
describedjustice in the more
established legal system. As a result, this deconstruction can belp us understand principies of a legal system. In the. last c~apter ppealto the good embodied in
the relationship between the philosophy of tbe limit and Niklas Luhmann's 1 as mvolvmg an a
prosaic sense of lega l pnn_c1p~s .da explicitly develops a concept:IOD
systems theory and why an understanding of this relationship is also important the nomos. As we will see m thts chapter' Dem . , evocations of the Goodand
for questions of justice and lega] interpretation as they have been framed by the of Justice as a set of aporias consis~n~ with Levtn~y suggested, in order to
Anglo-American debates. with bis own philosophy of the hnut. But as. f Justice as aporia, we need
. . . De da'sconcepnono . ftlte
I want to suggest that there is an aftinity between systems theory and the understand what ts umque lD m tite pnvilcgmg o
. 'th h.1s deconstruehon 0
philosophy of the limit, in spite of the divergences I emphasize in this cbapler, to understand it in connect1on wi
precisely because both rely on an antibumanist methodology. A full exploratioo present. . h.ch LuhmanDrelies to cooceptual
1 d the future as modificatons
of this affinity is beyond the scope of tbis chapter. At the very least, bowever, Toe tradtional conception of tune, upon w t
I will try to provoke the reader to observe tbis relationship differently. Yet, tbat ize the reproduction of systems. ~fines thc ~~3:voking chronology, but the
being said, it also needs to be noted that tbe fundamental premise of this chaprer, 1 or borizons of the present. By ttme, 1 am be oecessary to what Luhroann
namely, that even if law in a modem, differentiated society is an autooomous privileging of the present as it is understood to Witbout this present there
would refer to as the autopoiesis of the lega1 sysie:~ of communication for its
system-in the unique sense of Luhmann's understanding of autonomy--tbe
operations of that system cannot be identified as justice. lbis premise would
seem to indicate an important disagreement between tbe two approacbes. And
1
'
would be no legal system that could
participants, whether they be .tawyers
serv~=
m!:~
':,_J
a sy~e fi.ndthe (leco:1structon of
oot only in Jacques Deni~ 's
indeed it does, ifthe observer stops with the first glance. lbe immediate difference the ~tional conception of tl~ work uel Levinas' diachronic. u~1~g
would seem to be that for Derrida it is not simply that a modern legal system
1 discussions of diffrance but also m EnurulD . hronic view of time 1mphcit in
"requires a binary code that contains a positive value (justice) and a negative of time. I will specifically focus on ho':" the dtae possibility that Justice can
value (injustice), and that artificially excludes both contradictions ... ; 1 acode the explanations of di/france uodemu~ alveryue
-'!hin the binar)' code that
. the "pos1nve v .. _
which for Luhmann is "of decisive significance, .. "as it provides the system with ever be effectively limtted to . moderolegal system if it 1sto be seen as
its own intemally constituted form. of contingency ... i Instead, for Derrida, as we Luhmann argues is the very bas1s for a . ..
will see-and I am translating Derrida' s insigbt into tbe Jaoguage of systems a system that effectively protectsex~~~ when kft unchallenged, creates
1
theory-it is that the very idea of the ''positive" value of justice carries within it
a paradox or a set of aporias dud:cannot be resolved if justice is to meet its claim
to be Justice. In tum, the system's very attempt to "de-paradoxicalize" itself, so
a system, a ltlngdom which JCignsover
truly different futuro. Toe philoSOPhY
pass~:
As we saw in tbe last cbaptef, legal pos1ttvi~:ilty andex.eludesthe dream of a

of thc
as wc havcdiscussed, ex poses

116
1
.l
 118 / The Philosophy of the Limit The Call to Judicial Responsibility / / 19

the presumption of a detenninant certitude of a present Good as defined by any Jrgen Habermas that the focus on legitimation through an appeal to nonlegal
current philosophical or legal system. But, as l have emphasized in the last norrns should be deconstructed. To quote Luhmann:
chapter, in so doing, "deconstruction" is hardly the nihilistic language exercise
many critics claim it to be. As we will see in this chapter, in the definition of And nowadays people look for moral rules or valuesto found_the le~~Is~~tem
in nonlegal nonns--the famous Jellinek-Weber-Habennasl~n~of. leg1t1ma-
Justice as apora, the philosophy of the limit protects the divide between law and
tion" or the American discussion of moraJ aspiration vs. ongmal inient as a
Justice, and protects justice from being encompassed by whatever convention
guideline for an interpretation of the coostitution.My advice wo~ldbe to uo~k
described as the good of the community. This exposure of the aporias of Justice . t o ""--onstruct" them and to replacethemw1ththe quest1on
such quest 1ons--0r uc.; .
is in and of itself ethical. The aporias, or more precisely, Justice conceived as ofhow the system organizes its own closure, its own social autono!y, 1ts own
aporia, are an uncrossable limit which continual)y retums us to an inherent and immunity in fulfilling its function that oobodyehe takes care of.
ultimately irresolvab)e paradox. Justice so conceived resists its own collapse into
. 1 the
law or the definition by any system of the good embodied in the rwnws. lt is As l have already suggested, such an appeal to the nomos does_not imp Y
precisely in its rejection of any system 's "deparadoxicalization" of the paradox, evocatmn Ha bermas' sense , but mstead appeals
. of externa! nonns at least not m
and in its conviction that what the system says is just cannot in truth be Justice, to the "intemal" nonns of legal system. Indeed, in the language of syste~
ood ....rt of how a modero democrat1c
that tbe philosophy of the limit heedsthe aspiration to enact the ethical relation. theory such an appeal can be underst as l'- . . red
ali to
As we saw in the last chapter, this ethical resistance to legal positivisrn is also legal system operates, since it must be based on pnnciples
.
~
1 equthaty .
be , "thf 1 to the democrat1c e1a.im 1s
crucial for the development of an adequate conception of legal interpretation and legal subjects if such a system IS to ,a1 u . . .
can help us understand judicial responsibility. To briefly summarize the argument based.on tbe role of law and not of meo. Of course, to make this suggestmntheis
. ot simply a restatement o
of the last chapter: First, this ethical resistance allows us to understand why legal also to argue that the philosophy of the l mut is .. . . and as
interpretation always invo)ves both "discovery" and "invention." Interpretation . . . ~ th . nce1., an 1-, __, o pohtical-bistoncal reason,
K anUan ms1s....,nce a 1 JUS -
legal system becau se
is not an activity separable from the otber two. Indeed, as we will see in this such is irreducible to the actual conventions of any existm_g , 'K .
d' nt w1tb Habermas ant,an-
chapter, the philosophy of the limi~_also ~f!1Qb8i~. ~isely the n~~i!}'._of Luhmann has consistently expressed h1s isagreeme . fthe legitimation
"invention" in interpretatiQiJ. Biii iliis process of invention anci rei.tatementof legal 6
ism. We are not, in other words, just retumed to the q~~= would "decons-
norms also entails a judge' s "responsibility toward memory." Toe responsibility is of the legal system through external moral nonns that
not to an accurate repetition through the recollection of legaJ nonns, but to a
truct." . . . th tality of reasonable beings
refutation that what has bcen can ever be conflated witb Justice. Inventioo In Kant's later writings the idea of J~sttce or . _e to the future that we must
is inescapable if legal nonns cannot be discovered purely through their mere functions as the "as if' which is an eth1cal conchtion for . appeal to
recollection. As a result, the judge is responsible for bis or her projection of the postulate if we are to preserve practical judgment from_~mgftea::~mreted to
good embodied in tbe nomos. . . h f th rmit does not as it is o . r-- .
convent.1ons. The pbilosop Y o e 1 . . fu to connectustice
Moreover, it is a "projectioo," not simply a recovery of tbe past or the inevitable do . d lb K pro,;ect even if 1t re ses
--;-'--R:~t out of han e anttan l . ' phil hically established
fulfillment of tbe telos of history. lt is tbe turn towaid--tbe .future,-ooce-iLis ~y with legitimation, through extemal and yet . :ate desciptionand
properl_}'...J<~rstoocl_,_that _llie_ptlilosophr o_tb<: _!imit~- o us. Thus, ~.-as Habermas does.1 To ~o so would_once :!:.C:ven if tbey are extemal
altbough a modero legal system cannot but make a claim of legitimacy if it is to proscription through the e~ral:!on of establi~hed nstru.ctivescience is obviously
be reodered consistent with democracy, understoodbroadly for our purposesbere tothelegal system. As we w1ll see, Habe~ reco nd scriptive normsin the
as consisting of tbe transition of the rule of "meo" to tbe rule of ..law," tbe idea not a traditional K.antian project in that 11~es more consistent than
of legitimaey as understood within any given legal system also cannot be identified descriptive norms of speech. J:l..QJJ,e ~~i~g. . ,: .._,_-AbyKantian-
as justice. 1be concrete good of the nomos is in this sense always Iimited by H""---- . . -------1~-"1ana1ysisofJusl:!Ce.~ :
___<W<:>rnu,.:s
w1ththe quas1-~. reduce the aporiasof JustJ.ce
Justice. Such a broadly defined concept of legitimacy does not necessarily imply 1sm. Even so the philosophy of the hnut refuses to ni
an appeal-indeed, in American law it must not imply such an appealif it is to - ' . derstanding of tbe wo
toan horizon, even in the Kantt~ un . tbe definition of justice as horizoo.
be a decision consistentwith precedent--to norms exlemal to tbe legal sysrem. We need. to analyze why Oemda reJects tbical horizon has been
In the las! cbapter I argued instea<Itbat law shoold be understood to express
intemal norms, which in tum embody a story of tbe good life. 1be pbilosopb.Y
To do so, we need to discuss more carefully how si::d project an horizonof
CDnceived. The question of whether one can tba1therC is an bistorical
\pf tbe limit's insistence tbat no lega] system can claim. to bave eoacted Justice iUstice is itself addressed through .the ~:on of a horizonof ratiooal
~y surprisingly, tbeo, be reodeml coosistent witb Luhmann 's argumeot agaiost Speclficity of types of horizons assoc1atedwith pro:
'

l
 /20 I The Philosophy of the Limit The Cal/ to Judicial Responsibility I 121

beings asan ideal. Do we idealize a ''totality" of multiple language games, as in a mechanism of repetition from which they could not escape. Judgment: th~n,
Jean Fram;ois Lyotard's paganism, or the totality of reasonable beings in K.ant's cannot be separated from calculation. Memory wo~ld just be rote, a reph~a~1~n
own Kingdom of ends? The context of the horizon once it is specified, in other in consciousness of an objective reality. Deconstruction challenges.the poss1b1hty
words, is not just an appeal to the Idea] of Justice, but implies sorne pregiven that the Jawyer or the judge can be identified with the mere mstrument for
context which in tum implies sorne vision of the Good. I would argue that the replication of the system. Toe Judge and the Jawyer " act" when they remember .
questioning of the very concept of horizon as itself a reflection of historical precedent. But this deconstruction is not only relevant t~ the Anglo-Amencan
specificity is, as we will see, just that-a questioning. debates, it is also relevant to Luhmann's systems theory 1tself. _
However, the Kantian ethical suspicion of consensos as a "reality" that dresses Accord.ing to Luhmann, for a JegaJ system to remain a system tt .must fonn a
up convention as truth is undoubtedly evidenced in Derrida's philosophy ofthe self-maintaining, even if evolving, set of operations through "".h1chwhat he
limit. Like Kantianism, the philosophy of the lim.it rejects the identificatioq of calls normative closure can be ach1ev ed . To.IS t"dea of the self-mamtenance . of. a
. . . .
nonnat1vely 1f notcogmttvely, clo sed system ts a ttheveryheartofh1sconcept1on
.
the ethicaJ with "reality." This affinity does not, of course, mean that this
pliilosophy does not challenge the metaphysical premises that underlie the Kantian of law asan ~utopoiesis. 12 This conception of self-maintenance and tts correspo_nd-
___ ..____ d d' ft'me AsLuhmannexplams,
split between the phenomenal and the noumenal realms. Derrida challenges this ing notion of recursivity implies an un erstan mg O 1 .
.
"{s]ince autopoietic systems are temporal 1ze sys ems dependmg on se . -gener-
d t 11 .
rigid dichotomy as he does ali others.
But what is often missed in the interpretation of this challenge is that, as we ateddynamic forms of stability they necessarily differentiate and -~ogn~thzeththeerr
,,1J In terms of its defimt1onw1 m
saw in the last chapter, the Derridean deconstruction of the privileging of the own operations by temporal onentattons . . that
tem recurs1v1tymeans
present reminds us of the responsibility of judges, lawyers, and Jaw professors framework of Jaw understood as an autopo1enc sys ,
. hed b reference to the legal norms
for what the law "becomes." Moreover, this responsibility is connected with the the nonnativity of law can only be establ IS Y . d b the s stem
very idea of judgment. Jdgment is only judgment ~d--~_'?t.mere calc~la_tji;,n_i;,r already in place as they are authorized and, therefore,JUStiJie Yth y _, t'
fi d tanding of e appeu O
~llection if it is "fi:e.sh." 8 Toe judge is called upon to do just that, judge. As which is why I will suggest that a very speci c un ers be . mpa"ble with
. . th 'tself may not meo u
we will see, Derrida's remarlcable insight into the limits of memory is connected the good mherent m the nonns of . e system 1 nds the validity of its own
to bis deconstruction of the traditional conception of the modalities of time in systems theory. Toe legal system, m other ':ords, grou . . there would be no
which the present is privileged. Toe unique Derridean contribution to legal propositions by tuming back on itself. W1thout recurs1v1tyt to 'tselfthat could
1
'interpretation is to show us why the act of memory in judging involves tbe operative, normative closure and, therefore, no system presen
seemingly contradictory notion that the judge, in bis or her decision, rememberS be considered to be self-maintaining. . . the maintenance of any
the future, which is why the understanding of the traditional conception of time Due to Luhmann' s understanding of the role of h_~~, (past presentsfuture
. . f ........1 mUIJ.4[1nes
" is relevant to a discussion of interpretation and responsibility. system, he explores the tterati.ve use o ~myu~.... and more specifically to
Toe deconstruction ofthe privileging of the preseot, as we will see, is crucial ~sents, etc.) as they are relev~t his social theoryfollowing the tradition of
if we are to correct recent misdescriptions of tbe process of legal interpretation bis conception of law as autopotesis. For LuhmanD, t vilege the present. lt
which either appea1to the established conventions of the "present" or Iook ~estem metaphysics, any theory 0 ~ modal fonns=oiLuiunann's conception
back to the past. Even if that past is understood as a constructed "overlapping tsthisprivilegingofthepresentthathesatthevery f h ge in a legal system
consensos,,.., and not just the simple recollection of norms, the process of recon- of ~ocial evolution as ~e only war to make se~::;. : the sense of legitima
struction through the overlapping consensus is sti11directed to the past. Tbe which nevertheless remams normattvely closed- !4 . onl to be found by circling
decoostruction of tbe traditional conception of time also provides us with an tion (this is a crucial difference from Habennas), is Y
account of critique that can successfully answer the argument of Stanley_ ftsb. within the system. . ise in his conceptualization
who asserts that critique, in any strong sense, is impossible. Por FlSh,. we are Yet, it is important to note that Lu~n IS very a legal system to maintain
inevitably caught in what Luhmann calls the Iogic of recursivity, wbich enforces of his project. He studies the operat,ons_necessaryru~cally deveioped and are
the apparent adequation between the legal system and justice, so that the system !tsel~ as a system and how _these-~ttons =msscx:iety. He explicitly s~~
can establish the effective nonnative closure and, therefore, achieve tbe "self mev1tably implied, by the differenttan?n of does 001
agreewith, the propos1non
generated dynamic fonn of stability"io that makes it a system. It is tbis logic of however, that he does not study, and tndeed . . ho tandsbis own
he ..- .........
recursivity that makes the following of tbe pregiven legal rules oc norms "Doing
1' Tois IS W UJllA."'
~at differences deline~ the system. basalsonoted, "(w)ecouldtake
What Comes Naturally. " 11 Judges and lawyen would, as a result, be caught in d.isagreement with Demda. And yet as LubmaRD
 J2Z I The Philosophy of the Limit The Call to Judicial Responsibility 1 /23

the route of Saussure and Derrida or Spencer Brown and follow the injuncti.on system,whichorients its operationsto thesestructures.In lhis respect,too, the
always to start with difference and not with identity, with distinction and not with systemis a recursivelyclosed system.19
unity." 16
For Luhmann, then, Iaw is a specialized system of information processing.
The purpose of this chapter is to re-interpret what it means for an understanding Law maintains the consistency of legal reality through the very recursiveness of
of justice and legal interpretation to follow that injunction as it necessarily its system of communication. But, even so, the lega] system ~snot autonomous
demands the deconstruction of the modalities of time. Why have I chosen to re- in the sense that it is completely disengaged from the rest of soc1ety,the econom~,
interpret this injunction? Again, we are correctly retumed to what LuhmanD the political arena, and so forth. Indeed, Luhmann argues tbat a legal system, tf
considers to be the inevitable first question: "who is the observer?'' 17 Here, the it is to function to resolve conflicts, necessarily engages with events that are fed
observer is a woman, observing a system that has systematically undennined if to it by the outside environment. As a result, there is always a material conti~uu_m
not outright destroyed the civil rights gains for women made in the American between the law and its environment, even though Luhmann would also ms1st
legal system in the late 1960s and early l 970s. that this continuum should not be understood as the causal relationship implied
in the phrase "law and society." Toe legal system is o~y autono~us in the sense
Law as Normatin Autopoiesis that it is a self-reproducing mechanism for infonnatton processmg. .
The postulation of operational closure explains why systems theory t~ .fonn
But Jet me turn now to a brief discussion of what autopoiesis means within the of epistemologtcalconstructivism in which reality comes to "be" only w1thmthe
context of Luhmann's systems theory of law. I will not attempt to diSCUSS recursiveness of the system. But, of course, rea1ity ts 00 IY gtven in language f
autopoiesis in ali its subtlety but only as it incorporates a conception of time as What words mean can only be deciphered from within the relevant system o .
it is relevant to the very possibility of the establishment and maintenance of a legal communication, not through a more general system of definition. As Luhmann
system. Toe central thesis of autopoiesis as it has been succinctly summariud is explains:
that legal propositions or nonos must be understood within a self-generating
The law need not and cannot concemitselfwith whether particu~ words
system of communication which both defines relations with the outside environ- "woman" , ,,cy,,_,_ cy,""inhabitant,""thallium"are w1th..,_
suffiCJeDt
ment and provides itself with its own mechanism of justification. Autopoiesis wu.;1 capac1 . .used............ by the
consistencyinside and outsidethe law. To that extent,tt IS s~tr:'-
conserves law as an autonomous system that achieves full nonnative closure network.of social ...-nroductionof communicationby commurucat1oo.S-~~
tbrough epistemological constructivism. To quote Luhmann: ~r tbey can be [W1K:U
questionssuch as whetherwomen, etc., reallyexistanse,
Epistemological"constructivism"concludes from tbis that what the system, at aside or referred to philosophy.2:Q
the level of its operations, regards as reality is a construct of the system itself.
The operational network of law, for Luhmann, is a nonnative network.. which
Or
Reality assumptions are structures of the system that uses tbem. This can be continually processes infonnation through its established presupposttlons. .
10
clarified once more using the coocept of recursiveness. 1be system controls the . tbe d" ti00 be makesbetween normauve
envitonment, operationally inaccessibleto it, by verifying the consisteocy of put this another way so as to explain . tsbDC . based . tbe definitional
its own operatioos, using for this a binary system which can reconl agreement closure and cognitive openness: normat1veclo~ure is ID
or non-agreement. Witbout this fonn of consistencycontrol, no melllOI)' coukl recursiveness of the Iaw. As Lubmann has put 1t:
arise, and without memory there can be no reality. 18 . . . t,etween oonns and facts, between oorma
Legal reasoning uses the distmcuon ,.,_h _ ., ,
l h tO know in w...... 1 ""r--- 1 .............--
Practically speaking. theo, recursiveness allows for the coosisteocy control tive and cogmttve expectattons. l as )and. wbichrespects
that enables the system to fuoction as a system. 1be system, legal or otberwise, to leam ( whetheror not somebodykilled another woman m
21
not (that she should not or be killed).
is a system only to tbe degreethat it is operationally close.d. As Lnhmann rumself
explains: . . of law andjustice as part of
Normative closure creates the seeD"l1;g adequanon functi through tbe binary
[S]tructuresof !he system can be built up only by opentioos of tbc system.
This too must take place in such a way as to be compatible with tbe systen1's
autopoiesis;in the case of social systmS, for imtance, witb communication-
the system's deparadoxicalization. Smce the syst:m
COdeof justice and injustice, andex~ludescon~ctory :~ci~ts
ons nts tberesolutioo
as well as
to tbe positive valuesof tbe
of any confl.ict, if it is to be effect1.ve-cooV1DC1Dg_
Thcre is accordingly DO input and DO outpul of structures Of" openttions of to others-the society must understoOOto .reatu.e
recursivecan, of c:oursc.be
the system, and at this level, tbere. are no CTI'hange n:lariondlips witb tbe codeof justice. This fonnulatton of law I~cally . Toe nomos of tbe law
enviromnent. Ali sttuctures are operationally self-specified sb'UctUn:S of tbe llnderstoodas a refonnulation of the postbVlSthypotbesis

The Call to JudicialResponsibility I 125

!24 I The Philosophy 0/ the Limit

temporalization of being discredits any theo'Y of nawral forms, wbich would
always tom us toward the pastas the fundamental pivotof a society's time frame.
can onJy
mann's be found in law's thesls.
conception . But there is an .
positivist. In Luhm of ~utopoiesis that separates h'.m';'rtant differenee in Luh T'.".'poralization of being meaas that tbe past can no longer be grounded in an

:,,~:::~:::'?::::::~;~~l:
n:.:
~~t::i;~:~!~
system, with its .......th~leg1slator;rather the th. . _Luhmann,the thesis oflaw
minal _eventor origin. Tbis Ioss oforigin shifts the ve'}' grouad of time in madem
soc1ettesand is reftected in the iterative use of temporal modalities within social
theo,y. For Luhmann, tbe chief [eatures of social evolution, at Jeas! in term of
,~urs1ve sys te m of normati
' es1s IS the already- m-place
legal how it has changed tbe coneepl of time, are to be fonnd in what he calls the
Narms, ..__
~ are purel . ve self-reprod .
ucmg definitiOns:
nontemporalextension his
. Luh~ann associates of time.
conception of the nontemporal e>tension of wne with
the systcmwiUlOu
notbingelse. Ycorresponding
t any mtemal creations serv.
.~~g the self-generatedneedsof
"simil'
tsmeantby"'"to~,esis."
. ar 1te: ,n . his bas,c notion of a ,ocia! system as a n,ec1taaism for ,rocessing infonnation
,. alw,ys renewed Historicall .'" env,ronmont. And
opnoritie, but simp;"'"structlon of the past ..':,
gnmme,.u Y a crn:wa,, reciproca!
,i"'"
" n? beginning e,eept
.. "' log,cally there are
00 throughcommunicationwith the "outside"envjronnlCDt:
. condihoning of ende and pro- This nontom,o,,l ,xtonsion of timo by cmnn,.,mcatioocreate'iempnral
hori
rons for selectivo behavior-> p,st thttl can aer be ..,prodoeed """'se
it i
too complex anda futurethancannotbegin."
noLaw 1s a oonnative]y
. closed .
Butmos andsame is -
thesistim~Chcally system min
thethesen :,e Toe nontemporal extension of time in turn implies tune's reflexivity. As Luhmaan
at the
co.-ed L~~;"
to
overcome that the opposition
??'a cognitive]y clo:tomng of th~ legal system.
betwee
nghtfully explains, a theory of tiO" that is distinguishable om cbrODOlogymust
make use of the iteration of temporal modalities. EveD though Luhtnann insists
pmes,s " self-refenential posttion th,t while the I system. This distinction is
complex system can acbi ,t " not self-trans egal system's nonnative auto- that the reflexivity of time in modem ,oeiety wrns around ourorientation to the
dishngUisbes bis own eve pert'ect self-tt.:::mll. Luhmann denies th" any future, the future can only be nndersrood om within the present. Toe future and.
b10logicalmetapho,of systems theoey from allpa,ency. This is why Lumnaru> mdeed, the past only "are" as horizons of tbe present. To quote LuluJUIDl1'
self-thematization or ,.";;topoiesis is supposed to forms of neo-Kantianism. Toe

the legal system =

temcanbeself-ref,.._....:aJ-~erentiality,and lf capturethis distinction between
law " not self-traos ~,.,..u Wlthout necessarily se len-lrans
coand:lherefore, not ,:.;:g
m ve,y special sense F gmbvely open. Howe
nobon thatelectricity beor
. parency A biological sys
t>lfto be such." Because
"."':'fy ali of its operations,
example,the legal ,ver, tt is cognitively open onlY
[T]he "'""" oftime (in fact, I wouldn,ai,tait>,"rel"_
upo, a c,p,cily to ,.._,.,.

snucturesrelateto sornesortof present.

26
.. as soro) del'<""'
the pttSI,nd the ronue in prcscnl.Ali tomponl

Toe present interrelates time andreaJity and represents a set of constraints on

the tempotal integrati" of tbe futore and the past. Meanin& can only arise if
so
&: ,t,
only Wlthinthe nonnativestolen But even as ystem can ~--- IAU'..'- account of tbe there is this sbared "psent." Tois set of cnostrain"establishes the recursivity
of tbe system Social com<""nication demandS that t),ere be a "p,esent" that is
1or~b--
~......,.,.
..;.. ,,.to be stolen M autopoiesisthat recu,secogn th.is idea,
1 ues it can do
w at the Ieg al system oreover . . , tbe normati .ve y defi nes what ,i. meaas "there" for the tempotal actotSToe non-extension of timC-bY which Luhtnann
be
~
or
rep_lacesthe assumpti=:,;'
" As Lubmann
80JU~b~ by wbich to justify' anlaprioriwbich--'-'
i: =tion of theft can onlY
y told us, recursivity
indicates the evolution <$,oclety as the continued developmeot of the present-
implies the recursivi,Y of tbe systems pattem, or wbat Lutunann calls self -
thematization. ThJs ,rocess of self-tbetnatization is what makes a system self-
recurs1VJtythere
. . would be no lfegal pnnctples
. withln
.......wuserveas an outs1de. ground
e &m ttself as its own ori reproducing systc a legal system. Without constitutin& in and thfOUghtbe present. 1'be acton in the system can interact onlY
gm. m tbat couJd come full circle
1O 1
is a sbaftd
\:,ecausethe1'C present.
of the t>"""' contains ruloS fo, osing th< idea of sirno!uneity,
Tbe lterative Use of tbe M
Within Syatems Tbeocy - ot r-
n,o
which ii,olf """"'' the po,sibililYof commomc,tioo in soci,I life."
Toe ,ystem d<P"""' on temporal integration beCause withoul such integration it
would not.,.;nu.inits identity. Toe ve'}' distinction between the system and its
Luhmann's basic h . . enviro_,_ that there is an inevitable temporalization of the system. Toe
changed
. . ...._..
uuvu.gh ypothests ts tbat tune,
the mechanis as wcU .
" " "the social interpre . ""of social evolutian ... "' conceptualizati syste"' in - wetds,.is not there wlat once in an eternal present. 11is always
past andfuturo .. ModemtabOn of reality with . Tune, as Lubmann on, "
becau f socicties can be . . - to tbe diffi defines co,ning to be. ~ecu,stv,ty " a mode of temporal integration of the past and the
se o what he calls tbe temporalization
. of bcing. from
A~~~onal erence societies
between
. --- to LuJunanD
 The Call to Judicial Responsibility 1 127
126 I The Phi/osophy ofthe Limit

future as both these conceptua1 horizons have come to present themselves within Historical time is constituted as the contiouity and irreversibilityof ~s ~o:~
f hi torical time hes m uJC
the frame of modem society. ment of pastlpresentlfuture as a whole. This umty o . s . t
fact that the .....,t and future horizous of each preseot mtersectw1thother (pas
r- Thi ,,,,..n:onteeseach present a
or future) presents and their temporal honzons. s b-- ._,
As has recently been made clear, underlying this schema is the idea that the . . . only temnnraJJy,but maten...1Y
differentiation of system and environment produces temporality because it sufficient conttnu1ty w1thother presents-no 1 r
31
ell:cludesan immediate and point-for-point correlation between events in the and socially as well.
system and events in its environment. Everything cannot happen at once.
Preserving the system requires time. 28
It is because the future and past move around_the pn;s:t
speakof bis theory of time as reflexive. The honzons o p
u:: !:dh~=
On
zed. 10t0 system through the present. ce
In modem society the present now contains possibilities, and, in this sense, arereflex.ively integrated and thematt th f ture are reflexivcly
we accept Luhmann's proposition that the past and e u he ben he
the present future has conditiona1 possibilities. Luhmann distinguishes between . . nderstand exactly what meaos w
societies and social systems on the basis of whether or not they are expanding or mtegrated mto the present, we ~an3: th future is both tbe present
insists tbat the future cannot begm. For Lu~n e odem social
curtailing the possibilities of the present future. But e ven so, the nonextension of I
ture
fu ' as the conditional possibilities inherent m any comp f soc,a1
time meaos that the present remains the basis for the iteration of a11 temporal th topian projectlODS O
system, and the future present, exp~ssed as e u only expressible as
moda1ities even if the present view includes the future present and the present
critics. These projections ofthe utop1an future, howe~~n the very systems
future.
tbe oegations of the present and, tberef~, are con . bod to the aspirations
According to Luhmann, once we see the future as the storehouse of possibilities history they purport to reject. They serveas unages to give y
of the present-both as the future present and the present future-we can no
longer conceive of time as containing a tuming point where it veers back to a of the future present. . . ,,ew of time Luhmann
. "nh s m the re8ex1ve
mythica1 past or where the order of the present is to be apocalyptically tral1S-' A future tbat cannot begin I ere. . advanced tecbnology. An
00
associates with complex modero societtes based th 'tive opening of the
fonned. 00
open-ended future present which is necessary for e gru. a ttuly "oew
f th future as the pronuse o
1t must now be recognizedthat the future (and this means past futures as weU system ironically involves tbe los.s O e th present of tbe systems
as our present future) may be quite different from the past. Time can no longet begioning." However, it should be remero~ -~ through tbe horizons
be depicted as approaching a turning point where it veers back into the past or theory,which is nota simple present because it re 311
19
where the order of this world (or time itselO is apocalyptically transformed. of tbe past and the future, still c?stitutes re3!r f world history has specific
0
This view of the time of s~ial systems . f justice and the possi~ility
For Luhmann, tbere is a1so no te/os in history which leads us to the ideal through implications for legal interpretatton, tbe co~ceptton,o of hi~, the pull of the
the progressive realization of the potential that inheres in the origin and wbich . al . . . p L1..-"'" if there IS . no
o f soct cnttcISm. or wumu .... , . al th
te OS or systemS history, whie h
ultimately has tbe power to mak:e itself real. Luhmann believes himself to be regulative ideal cannot be introduced mto soet eoryH l{abermaS 33 Tois is
. . . . uuctive science of Jurgen .
enriching the iterative use of temporal modalities so as to develop a unique 1S why he 1s a cnttc of the recons . has beco neutra:Iiz.ed.History no
modem conception of time. what Luhmann meaos when he says that history al positivism as one of the
longer has nonnative implications. uses ia':l
1
3,4 1be past can no longer

For modem society, it is espccially important that we be able to distinguish

between our future presents and our present future. We can even speak, if
examples of what the neutratization of histoi e: . \or nonnative justification
provide us with an origin th~t e~ serve as :iff:nt future as the truth of the
necessary, about the future offuture presents, the future of past presents (modo
futuri exacti), and so on. This iterative use of modal forms has always been a
for tbe present or for the proJectton of trolY , autopoiesis. justice can only
past. In Luhmann s conception of the legal sys.: sf justice as an extemal moral

as~:~
problem for the theory of modalities. For exampJe: why not speakofthe ''future 0
of futures"like the "heaven of heavens"' (coelum coeli)? Only pbenomenological be what the legal system defines it to be. The stent with 30 expJanation of
ana1ysiscan justify the selection of meaningful combinations of modal forms. nonn which justifies the system is rej~ ideal speech situation
What it shows, in fact, is that all iteration oftcmporal fonns must bave its basis bow the s ystem reproduces itself Toe ho~ etbicalhoriron to the degree
in a present. 30 or Kant's Kingdom of ends, forexampl~J.Sonly an ivty. 1be "ought to be." in
that the projected ideal is beyond the logic of recw:s Kantianism, in aU its forms,
For Luhmann, rooting the iteration of ali temporal modalities in lhe preseut otber words, cannot be captured by tbe ~t. tbeougbt. ButinLnbmann,
hasimplications for tbe way we think about tbe bistorical time of systems bistofY
maintains a transcendental divide between tbe is and
 128 I The Philosophy of the Limit The Cal! ta Judicial Responsibility I 129
1
any nonn, lega] or otherwise, only means something to the degree that such a An interva1must separate the present from what is not in order for the pre::
norm expresses the present understanding developed through the network of legal to be itself hut this interval that constitutes it as present must, by the.s
operations. The legal system can develop, but only as the legal system. For token divide the present in and of itself, therebyalso dividing,alon~ w'.ththe
Luhmann, the victory of legal positivism inheres in the very mode of the tempo- prese~t everything that is thought on the basis of the present, : is,bi_n ~1!!
ralization of modero society. metaph~sical language, every being, and singularlysubstanceor su ~ec .
. . .. ted" also make possible the
Toe intervals through which realtty is presen de . " the night
Tbe DeconstructJve Cballenge to Luhmann's . . h Id therwise be sheer ns1ty, or
Conception or
the Modalities of Time presentatton of reahty out of w 37at wou O ''p t" itself it must
in which ali cows are black. " In arder for reahty to ..resen t .: in other
lnberent in Systems Tbeory
already be spaced, which implies temporizatio~.and tin;: }~t
::::~ndition is
words, is what is already past and, therefore, presen f. h.\ is time itself a
Derrida's philosophy of the limit challenges the idea that a theory of modal
only reachable as the "effects" of temporization, one O wfu,c . 'both an
forms must have its basis in the present. (But it should be remembered here that 10 th ay cannot ne1100 as
diachronic force. Time, unden.t ood is w ' h t as in Luhmann.
Luhmann' s theory of time studies the time framework necessary for systems
maintenance.) As we will see, this e hallen ge is cruda] for the development of an integration and a unit of the past and future ~fe :sen the disruption of
Any reality is aJways already divided a~amst ~tse . sus, ific sense, beca use
antipositivist conception of legal interpretation in which the divide between temporizing turns us toward the past, even 1fonly m a very pee
justice and law is aJways maintained, but not in the Habermassian manner of the - ed as the trace of the future.
this past can just as well be concetv
projection of an extemal nono or set of nonns that serve as a criterion for the
'fi ation is possible only
definitive establishment of justice. It is because of diffrance that tbe movement Of stgru e . n tbe sceneof
But fin.t I will tum to the deconstruction of the traditionaJ conception of time if each so-called "present" element, each ~leii;;n~:~:p~ng within itself
which privileges the present. In order to do so, we must tum with Derrida around presence, is related to something other than its.e '"tself vitiated by the mark
diflrance. Heidegger forcefully pointed to the privileging of the present in tbe mark of the past element, and already lettmg ,_.__.no less to what is
. . 1 t this trace bemg reum:u
traditional conceptions of time in Western metaphysics. Derrida clearly recog- of 1ts relat1on to the future e emen d constitutingwhat is called
nizes the explosive power of Heidegger's attempt to follow through on the called the future than to what is called the past, an . . . ,.._.it absolutely
tl,e present by means of th1s . very re1a.:...on to what 1t1snot. wu,:u.
implications of Dasein' .r3'finitude and its potential to undennine the traditiona1 18
is not, not even as past or a future as a modifiedpresent.
conception of time. But it is not this aspect of Heidegger's analysis that is
crucial forthe deconstruction ofthe traditionaJ conception oftemporal orientation. . d .. 1 to what is called the future than
The statement that the trace ts relate no ess. deed Yet it is precisely this
Tberefore, 1 will focus instead on tbe significance for legal theory of Derridean
t:Ji!france. Because diffrance is not a traditiona] philosophical concept it is
to what is called the past" may seem strang~; t':
of the never has been
insistence on the constitutive power 0~ the m y~ization from LuhmanD's
difficult to define it directly. lndeed, Derrida himself circles around the play of that separates the Derridean understandmg ~f te f in modemity and, more
diff~ance as it within several different theoretical parameters.
. Diffrance can be understoodas the ..truth" that being is only represented to
. sociological analysis of the un!que conceptlon
~me system, and sets Derrida
specifically, the time inherent m any self-perpetuattnbeg.
tune; therefore, therecan be no ali encompassing ontology which claims to tell . . th th future cannot gm. .
agamst Luhmann's assertion at e althoughitis,ofcourse,inapJJWP;"-
the truth of ali that is. Thereis a similarity here between Derrida and LuhmaM
For Derrida, the future has airead y ~gun- . tion belies an absolute begtn-
msofar as both stress, even in different ways, the temporalization of Being.
ate to use the word beginning here sm~ ~m~a would agree with Luhmann,
~s analysis is sociological, focusing on how the temporalization of ning-as the trace of the umeachable ongm. De ach the origin it recedes
Bemg results from tbe shift in the conception of time associated with modemity rigin As we appro
then, that there is no way bac k to th 0 have a)ways aiready be~
Derrida'~ ~ysis, on the other hand, is quasi-transcendental. For Derrida, the
and the receding of the origin is inevitable because origin only js" as th1s
temporal~n of Being inheres in the conditions of the presentation of Being once there is a reality that has been presented. . g this is wby it can also
and ~. m tbe specific historical conditions of modemity. Diffrance, to use . bsolute begmrun ,
~da s _word, temporizes. It breaks up the so-called claim to fullness of any
recesston of the never has been o 1 an .
not the past of cbrono 1ogy
be related to the future of the not yet. Toe past 1~ moments Nor is it one
gtven reality, social orothcrwise, because reality only "presents" itself in interVals . can be traced back througb a 1mear successmnh t1LuhmaDD
which
would calI the
so that, to return to Luhmann, therecan no longer be sufficient continuity between
each presem witb Olberp,esenu_ of the borizons that extends back fro~ tbe p~sent, ~tu~on of temponlity, wbich
_
J)[CSentpast. Ratber, . the pnmord~coom
the past ts

130 / The Philosophy of the Limit
in turn is the condition of presentation. Toe present, as a result, itself becomes
a sign, pointing beyond itself.
Derrida would, however, also agree with Luhmann that the recognition that
we can never grasp the origin has implications for the way we think about the
future. Toe central difference is that for Derrida it is the present that is forever
postponed, because the present "moment" must refer to the trace of the not yet
of never has been that cannot be conceived as simply a modification of the oow.
In order to be what it is, the now, or the present, must refer back to an anterior/
posterior that is the basis for presentation. As we have seen, this "movement'' of
temporalization is already "there" in preseotation. As a result, the "preseot" is
always belated. lt cannot anive except as coostitutive power of the not yet of tbe
oever has been, which can be evoked as either the "not yet" past or future. 1be
future in this specific sense of the "not yet" cannot be reduced to the present
future or future present. It remains the "not yet," but as tbat power it has always
already begun. This is wby diffrance implies a diacbronic view of time. Time
disrupts the very pretense of full presence at the very moment that it maires
presentatioo possible. Time, in this primordial sense, is the delimitation of tbe
ontology of presence.
W e can now turn to what the diachronic view of time meaos for the engagement
between Luhmann's systems theory and Derrida's philosophy ofthe limit. Lub-
mannclaims that bis epistemological construct view is "postontology." And, of
course, it is in the sense that Luhmann gives to postontology. For LuhmanD,
ootology claims privileged access to an "extemal reality" outside of tb.e autopoie-
tic system. He replaces ontology with epistemological constructivism. (As Luh-
maon well understands, bis own cooceptioo of postootology demands philosophi-
cal as well as sociological exploration.)
But in another, more profound sense, the very idea of recursiveness implies
exactly what Derrida meansby the ootology of the full presence. Recursiveness
implies a view of time that necessarily privileges the present. 1be whole point
of Luhmann's tbeoryof autopoiesis is to show us how a legal system malees itself
"real" through operative closure in the present. Througb autopoietic closwe, the
system becomes the only "reality ... As such it fills the universe; it becomeS a
kingdom which reigos over possibility aru1excludes the dream of a truly different
future. Derrida challenges this idea that the system can reign in the beyond of
the not yet through the demonstration of the significance of the play of dijfrance.
It is the domination of beings that dijfrance everywbere comes to solicit, in
the sense tbat sollicitare, in old Latin, meaos to shake as a wbole, to make
tremble in entirety. Tbetcfore, it is the detennination of Being as presencc or
as beingness that is interrogatedby the thougbt of diffrance. Such a question
could not emerge and be understoodunless the differcnce between Being and
beings were somewbere to be broached. First consequence: difl~ is not.
It is nota present being, however excellent, unique, principal or transceJl(leot.
It govems oothing, reigos over nothing and nowbcrc exercises aoy autbority.
1
The Call to Judicial Responsibility f 131
It is not announced by any capital letter. Not only is there no kingdom of
diffrance, but diffrance instigates the subversion of every kingdom. Which
makes it obviously threatening and infallibly dreaded by everything within us
that desires a k.ingdom, the past or future presence of a kingdom.)'J
Recursiveness establishes the kingdom or the system as, at the very least, de
facto ontology (which, of course, Luhmann would recognize, since epistemologi-
cal constructivism both recognizes "reality" as a construct and yet preserves the
ootion of "reality"); difjrance, on the other hand, explodes from within its very
claim to rule over the future by reducing the future to a horizon of the present.
There is a sense, of course, in which Derrida would agree with Luhmann that the
future cannot begin, because the very idea of the not yet is both anterior and
posterior and, tberefore, not merely "future" in the traditional meaning of the
word. But, as we have seeo, the very posterity of the future as tbe not yet of the
never has been means that it has already begun as a coostitutive force that disrupts
the presence of the present. The future "is" as redemption from enclosure in the
present.
The Significance of Time for a
Conception of Law
Within a legal system, the future as the promise of Justice "is" as the possible
deconstruction of Iaw or right. Toe destabilization of ''the Kiogdom" is also the
destabilization of tbe functional or practical identity of nomos and thesis within
a given legal system. As we have seen, in Luhmann, the logic of recursivity
functions so as to postulate itself as its own origin, therefore urging nomos and
thesis into accord. It is this endless process of tuming in on itselfthat replaces
...
Derrida agrees with Luhmann-and we will return to the s1g01fican~eof ~.1s
a&reement in bis discussion ofRousseau-that tbere is no "real" normattve ongm
from which all the values and norms of the legal system can be retumed so they
can be adequately assessed. But, uolike Luhmaon, Derrida _d~s argue that this
origin cannot ever fully be displaced by the logic of recursmty:
Since the origin of authority, the foundation or ground, the position of the law
can't by definition rest on anything but themselves, they are themselv~ a
violence without ground. Which is not to say that they are ~msel.ves unJ~t,
in the sense of "illegal." 1bey are neither legal nor illegal m therr foundmg
moment. They exceed the opposition between founded an~ unfounded, or
between any foundationalism or anti-foundationalism.Ev~ 1~ the success of
perfonnatives that found Jaw or right (for example, and this is more than an
example, of a state as guarantor of a right) ~uppose~ earlier conditions and
conventions (for example in the national or mtemah~ arena~. the same
"mystical" limit will reappear at the supposed origin of saida.>ndi!!ons,rules
or conventions, and at the origin of their domioant interpretallon.
 J32 / The Philosophy of the Limit
Law, as a construct, is always deconstructible. The endless deconstruction of
law destabilizes the machine and exposes the cracks in the system. As a result of
this destabilization, the displacement ofthe origin can never be completed through
the functioning of the legal system or through the postulation of a Master Rule
of Recognition which supposedly replaces the founding moment of violence with
41
a norm of foundation. This destabilization is itself done in the name of legal
transformation and reform and, ultimately, in the name of Justice. To quote
Derrida:
The structure l am describing here is a structure in which law (droit) is
essentia11ydeconstructible,whether because it is founded, constructed on inter-
pretable or transfonnable textual strata (and that is the history of law (droit),
its possible and necessary transfonnation, sometimes its amelioration), or
because its ultimate foundation is by defi.nitionunfounded. 1e fact that law is
deconstruclibleis not bad news. We may even see in this a stroke of luck for
politics, for ali historicaJprogress. But the paradox that l'd like to submit for
discussionis the following:il is the deconstructible structure of law (droit), or if
you prefer of justice as droit, that a1soinsuresthe possibility of deconstruction.
Justice in itself, if such a thing exists, outsideor beyond law, is not deconstruct-
ible. No more Iban deconstructionitself, if such a lhing exists. Deconstruction
42
is justice.
Why is deconstruction justice? There are several levels on which this question
must be answered. Deconstruction, as we have seen, undennines the legal ma-
chine that claims to fi.nd authority in its own functioning. The tyranny of the
"reaJ," and with it the appeal to a preseot "reality" as the basis of the Justice,
denies possibilities of legal refonn that have yet to be articulated. The attempt to
positively establish the nature of justice is rejected as incomplete because descrip-
tive justification, the appeal to what is, still stands in for prescriptive justice. If
we say this is what justice is through descriptive justification, no matter bow
sophisticated the argument, if a victim's claim can still not be adequately trans-
lated, her claim goes unnoticed. To identify any existent state of affairs as justice
is to impose silence on the Other who cannot or dares not speak in that system.
Justice, if it is defined immanentJy, reinstates a circular mode of justification
that tums on what aJready is. Therefore, such an appeal still collapses prescription
and description. This refusal of the collapse of a prescription into description is
one dimension of deconstruction's insistence on the maintenance of the divide
between the is and the ought, law and justice. To.is resistance is in and of itself
ethicaJ. It is important to note again that Luhmann's project is to conceptualii.e
what a lega] system "is," not to philosophically show how it is necessarily
delimited by its very structure, which separates the interna! from the extemal as
a matter of self-definition. We will retum to the divergence between Derrida aod
Luhmann, in particular with regard to bow each understands the relationship
between difference and aoy system's own self-delimitation, shortly. For now, 1
want to emphasize their shareddifferences with Kantianism.
The Cal! to Judicial Responsibility I 133
1
But if justice is not immaneot to any legal system, how can we conceive of
justice as transcendent without simply reverting to Kantian metaphysics in which
the is and the ought are clearly divided into two realms, the phenomenal and the
noumenal. In other words, how can the philosophy of the limit destabilize the
traditional dichotomy between nature and freedom, so crucial to Kantian morality
while at the same time insisting on Justice as transcendent to any set of immanent
nonns in any legal system? As we have seen, this destabilization can itself only
be conceived within the deconstruction ofthe traditional modalities oftime. Toe
legal system is never simply present to itself so as to generate its own purely
immanent nonns. This destabilization of the relation between the immanent and
the transcendent is itself done in the name of justice but is not Justice. Justice
"is" the limit of the immaneot norms of the legal system to the extent that these
norms are identified as Justice. But for Derrida, this limit is not projected as a
transcendental ideal. Rather, it is an unsurpassable aporia. Justice, in other words,
~.
operates, but it operates as aporia. From the standpoint the observ~r, ~ust!ce\~
the refusal to accept as vaJid the system 's own attempts at deparadox1cahzat1on.
Derrida's Definition of Justice as Apora
. 4)
Derrida gives us three examples of the operational force of Just1ce ~s apona ..
The first aporia is between "pokhe and rule." lf law is jus~ ~alc~latt~n, ~en 11
would not be selflegitimating, because the process of leg1t1mat1on1mphes an
appeaJ to a nonn. The judge is ca1led to judge, which means that she not only
states what the law is she confirms its value as what ought to be.
'
In short, for a decision to be just and responsible,it must, in its proper moment
if there is one, be both regulated and without regulation:il mu~t~onservethe
law and also destroy it or suspend it enough to have to reinvenlti ID each case,
rejustify it, at Ieast reinvent it in the reaffirmation an?. the. ne~ and free
confirmationof its principie. E.achcase is other, each <1e:1s~on 1sdtfferent and
requires an absolutely unique interpretation,whichno ex1sung,coded ~l_ecan
or ought to guarantee absolutely. At leas!, if the rule gu~tees ll m no
uncertain terms, so that the judge is a caJculatingmachine-wh1ch haryienS-:-
we will not say that he is just, free and responsible.But we a1sow;ont say it
if he doesn't refer to any Jaw, to any rule or if, because he _does~l_take any
rule for granted beyond bis own interpretation,he suspendsh1s_ dec1s10n,stops
short before the undecidable or jf he improvisesand leaves asuie ali rules, ali
principies.44
But at the same time, the judge is caJied to judge accordi~g to law_.That is part
of tbe responsibility of a judge: he must judge what is ng~t, wh'.ch mean~ he
lppeals to Iaw, to rules and not only to bis opinion. So the Judg~ ts cau~ht ~n a
))aradox. He must appeal to law and yetjudge it through confinnatton or reJect1on.
 134 / The Philosophy of the Limit
But this act of judgment would not be a "true" judgment, fresh, if it were simply
calculation of law. As a result:
It fotlows from this paradox.that there is never a moment that we can say in
the present that a decision is jusi (lhal is, free and responsible), or that someone
is a just man---even less, "/ am jusi.',.~
To be just, is to be in the throes of this paradox..
The second aporia is the "undecidable," an aporia which is close to the first,
and to sorne degree reflects a transcendental deduction of the conditions of a
46
decision. A legal decision is an interpretation which "ex.ists" in the first aporia.
If a decision is merely calculation, it is not a decision.
There is apparently no moment in which a decision can he called presently and
fully jusi: either it has not yet been made according to a rule, and nothing
aUows us to cal! it just, or il has already followed a rule-whelher received,
confinned, consef\led or reinvenled----whichin its tum is not absolutely guaran-
teed by anything; and, moreover, if it were guaranteed, the decision would be
reduced 10 calculation and we wouldn'I call it just. That is why 1he ordeal of
the undecidable that I just said must be gone through by any decision worthy of
the name is never pastor passed, it is nota sunnoun1edor sublated (aufgehoben)
moment in the decision.47
411
The third aporia is, perhaps, most significant for the purposes of our discussion
here, because it most clearly distinguishes the Kantian divide between the noume-
nal and the phenomenal from the Derridean conception of Justice as the limit of
the immanent as aporia. The third aporia is created by the very urgency of justice.
'."-s we_have seen, every case calls for a decision and a "fresh" judgment. Toe
Judge IS called to decide now. In Habermas or Lyotard, two modem interpreters
of Kant, justice ultimately "is" only as the projection of the horizon of the ideal.
The content of the ideal differs in Habermas and Lyotard, but not the Kantian
mode of argumentation.
49
But we are not in Habermas' ideal speech situation
now, nor are we in Lyotard's paganisrn. And yet, we must judge. As a result,
Derrida states:
One of the reasons I'm keeping such a distance from ali these horizons-from
the Kantian regulative ideaorfrom the messianic advent. for example, or at least
from their conventional interpretation-is that they are, precisely, horizons. As
its Greek name suggests, a horizon is both the opening and lhe limit thal defines
an infinite progress or a period of waiting. 30
Justice <loes not wait. We judge in our present. But the ideal cannot guide us
precisely because it is the ideal and thus not present. For Habermas, truth and
rightness in the ideal speech situation demand the projection of a regulative ideal-
to guide us. As a regulative ideal, it is not realizable. Yet, we do not have the
ideal speech situation and, indeed, as an ideal we cannot have it.
The Call to Judicial Responsibility I 135
1
There is another concem. In spite of ourselves, the ideal will not be other to
the real, therefore ideal; it will only be a rationalized projection of our current
norms.51 Justice demands the recognition of the possible contamination of the
ideal itself. One classic example is that very ideal of the rational "man" crucial
to traditional liberal conceptions of justice, which may rest on just that, a concep-
tion of the nono as masculine to the exclusion of feminine forms of reasoning.
In order to prevent the justification of one normas justice, Derrida appeals to the
overflowing of the performative, inherent in the very act of interpretation.
Paradoxically, it is because of this overflowingof the performative,because of
this always excessive haste of interpretationgetting ahead of itself, becau~ of
this structural urgency and precipitation of justice that the latter has no honzon
of expectation (regulative or messianic). But for this very reason, it may have
avenir, 0 "to-come," which J rigorously distinguishfrom thefuture tha~ can
always reproduce the present. Justice remains, is yet, to come, O venir, 11h~s
an, it is dvenir, the very dimension of events irreducibly to come. lt w11l
always have it, this il-venir, and always has. Perhaps il is for this reason thal
justice, insofar as it is not only a juridical or political concept, opens u~_for
l'avenir lhe transformation, the recasting or refounding of law and poht1cs.
2
"Perhaps," one must always say perhaps for justice.~
Toe legal system as the present nono silences the perha~s. The machine may or
may not operate. But, as amachine, in Derrida's sense, 1t~emands only calc~la-
tion of those who operate it. For Derrida, judgment begms where calculauon
ends.
Here we see the affinity of Derrida 's conceptualization of the aporias _ofJustice
with Levinas "Jewish humanism," in which Justice provides the s31_1ct1ty. fo.r the
Other. Justice does not, then, be gin with the "l" that strives t~ e~tabl~sh hls ng~ts
and protect his due share of the pie. Toe right of the Other is mfimte, m~mg
that it can never be reduced to a proportional share of an al~a~y e_sta~hs~ed
system of ideality, legal or otherwise. Justice understood as ?stnbut~ve }ust.1ce
always implies an already-established system of ideality in wh~ch the d1st?but10n
takes place. For Levinas, distributive justice is nevera quest1on Jusuce, ~
only of right. It is the Other as other to the present that ec~oes m the cal
t~;
Justice. Toe echo breaks up the "present," because the Other IS there before the
conception of a system of ideality and remains after
Tbe Relationship between Derrida and Levinas'
Deconstruction of the Modalities o Time
l..evinas also deconstructs the modalities of time, e ven as ~ey_ are incorpora~ed
to Lu
m
f
hmann's unique conceptton o socI
a1theory Even If h1s deconstruction
proceedsdifferently from Derrida's, Levinas offers usa concept of the future as
 136 I The Philosophy of the Limit
~rredu~ible to the ~volu_tionof the present that also has implications for the way
m wh1ch the relat1onsh1p between justice and law is understood.
Levinas elaborates a unique sense of the future which he connects to what he
calls the infinity of time. Like diffrance, the infinity of time can also be under
stood as_an inevitable temporalization of Being so that presentation is possible.
For Levmas, the infinity if time implies that temporalization is a diachronic force
th~t cannot be suppressed. Time is always disrupting the presence of the presenl
as 1talso malees presentation possible. The infinity of time is not, then, the eterna]
no"'.,_all that is in its foil presence, a conception that is associated with the
tra~1t10nalrea?ing of !Je gel. The infinity of time disrupts the fullness of presence.
As 1t does so tt prom1ses us hope of a new beginning because there can "be" no
mere reproduction of what is or what has been, because there is no pastor present
simply "there" to be repeated.
Resurrection constitutes the principal evem of time. Toere is therefore no
continuity in being. Time is disconlinuous; one instant does nol come out of
another without interruption by an ecstasy. s,
Por Levinas, it is the very infinity of time as the overreaching of the in-finite of
the present that opens us to the beyond as other than an horizon of the etemaJ
present. This beyond can also be understood as the future which can never be
closed off.
~e fu~ does not come to one from a swarming of indistinguishable possibili-
lles wh1chwould flow toward any present and which I would grasp; it comes
to one across an absolute interval whose other sbore is absolute Other.-'"'
The fu~ as the "not yet" remains other than the present. Again we see tbe
contrast w1th Luhmann 's understanding of the time frame of systems maintenance
such that future time is understood within the system's operations, which is
necessary for the sake of reducing the future to the "present future" or the "future
~re_sent." It is Levinas' denial of the reflexivity of the present that Ieads him to
ms1st that the future does not come "from a swanning of indistinguishable
possibilities." The "Other'' of the "not yet" is "present" as the recommencement
that inheres in the diachronic "force" of time. ''Time is the non-definitiveness of
the definitive, an ever-recommencing altering of the accomplished-the 'ever'
of the recommencement. ..ss
"To be" infinitely and etemally has usually been taken to mean "to be" without
limits and, therefore, necessarily outside of time. Time, as traditionaUy con-
ceived, is only a limit-the integrative force of the present tbat operates as a set
of constraints. But Levinas shifts our understanding of infinity by making it "tbe
infinity of time" which resists the illusion of totalization tbat Iies at the root of
the Hegelian conception of the infinite. lnfinition in Levinas is tbe rupture of
The Call to Judicial Responsibility I 137
continuity that is expressed in time. In this sense, Levinas an? Luhmann offer us
very different meanings of what is entailed by the non-ext~ns1on of t~e tempo~al.
Jt is important to note again, however, that Luhmann s concepho~ of time
involves bis explanation of why a system is possible. In Luh~ann, time tums
back on itself beca use it is inevitably rooted in the present. Toe time of the system
evolves but it does not recommence, if one means by a recommencement a
"new ~ginning." According to Luhmann, the iterative use of time can only be
understood through the evolution of the present. As we have seen, for Luhmann,
the very notion of recommencement, let alone of_resurrection: ~ould involve an
appeal to a Iost origin that he believes is necessanly gone. Tius 1s wh~ Luh~ann
argues that apocalyptic visions inevitably veer back to the past._ ~ut m Levmas,
recommencement and resurrection do not appeal to the lost ongm. lndeed, the
opposite is the case. Time recommences precisely because it is discontinuou~ .. lt
is the discontinuity of time that disrupts the very idea of an appeal to an ongm
as an absolute beginning. Toe past that has never been an~ y~t must be for
presentation to be possible disrupts the very idea of the begmnmg, at least
traditionally conceived. And yet, in another very s~ific ~ens~, the '.uture IS
always beginning as the recommencement that inheres m the mfimty of time. But
recommencement 1s
th1s not JUSt
iy m the sense of a present future or
contmu1
future present. There is no simple "return" through the pre.sent_thatd~fines _ehan ge
only as evolution. This is why Levinas can say that the t1m~ m ~h1ch bemg and
infinition are produced goes beyond the possible, if the poss1ble 1s understood as
the future present or the present future. . . . .
As with Derrida Levinas' conception of time has 1mphcat1ons for ~IS un~er
standing of justice'. For Levinas, Justice is messianic. ~e "ave~ir" IS n~t JUSt
the Jimit created by the aporias Derrida indicates, but mstead mheres m the
othemess of the Other that cannot be encompassed by any present sys~m of
ideality. Toe Other is other to the system. Incorporation into the system ts the
denial of the Other. Justice is sanctity for her "othemess." Nonencompassab~e
by the system, the Other is also noncalculable. Toe rig_htof the Other, then, is
infinite, meaning that it can never be reduced to a proJM:>rtmnaJ share of an already
established system of ideality Iega1 or otherwise. It 1s the Other as other to the
present that echoes in the call ' to justice. Toe echo bre aks up th " sent "
because the Other is there before the conception of a system of 1deal1ty and
remains after. - d' hed
For Derrida and Levinas, if for different reasons, the future 1s 1stmgu1s
from the present that merely reproduces itself. Justice, in other words, whether
as a limit, as echoed in the necessary demand of the Good, or as the ca11~f th~
Other that cannot be silenced, is the opening of the beyond that makes true
transfonnation to the "new" possible. Without tbis appeal to tbe beyond, transfor-
mation would not be transfonnation, but only evolution and, in that ~nse: a
continuation. Toe very concept of continuation as evolution of the system 1mphes
the privileging of the present.
 138 I The Philosophy of the Limit
The Relatiomhip between Systems Theory
and the Philosophy or tbe Limit Rethought
But what is the "bottom line" in terms of the relationship between systems
theory and the deconstruction of the privileging of the present carried out by
both Derrida and Levinas? 0n one reading, particularly of Derrida, such a
deconstruction demands that sociology, conceived for our purposes here as Luh-
mann 's systems theory, must be rejected because such a theory, which studies
how systems come to be identified as systems replicates the identity logic that
Derrida deconstructs. Many writers who have been identified as "postmodem"
have reached that conclusion. S6 Sorne feminists, forexample, have suggested that
there is no "system" of gender reproduction. Gender is only a masquerade md,
because gender can always be restylized, it is both a philosophical and politicaJ
mistake to try to explain how "men" and "women" are reproduced as "men" and
57
"women. " The very concept of social "reality," Jet alone systems "reality," is
rejected. In terrns ofthe relationship between sociology anda quasi-transcendenta1
analysis such as Derrida's philosophy of the limit, this understanding of decon-
struction has led to the inescapable conclusion that sociology, even in its most
sophisticated fonns, such as Luhmann 's systems theory, is misguided. {Of course,
other ''postmodern" feminists have reached the opposite conclusion: the contrary
"postmodem" position insists that sociology replaces philosophy .)~
The politics of this rejection can be stated simply and, again, I will use tbe
example of gender identity. Toe poli tics inherent in the deconstruction of gender
identity involves an implicit appeal to freedom. We are always free. We are
always free to restylize ourselves, to make up our own "gender'" OI" lack thereof.
Nietzsche's influence, interpreted through one reading of Foucault, is obviously
evident here in the emphasis on the aesthetic recreation rather than, as in l..evinas,
on the enactment of the ethical relationship.!19 As I argued in the third chaptt:r,
Derrida does not deny tbe importance of the Nietzscbean moment, particularly if
one thinks that moment in the context of gender identity as the possibility of tbe
restylization of one's own sexual identity. As wehave seen, Denida'sdeconstrue-
tive intervention into Lacan shows us both why the recognition of phenomeoologi-
cal symmetry for women is possible, in spite of tbe system of geoder meaning
which denies women that recognition, and why tbe .. new choreography of sexual
identity" can never be foreclosed by tbe system of gender reproduction so elo-
quently described by Lacan. 1 have also argued elsewhere 60 that it is a serious
misreading of Derrida to argue that he denies that systems do indeed perpetuate
themselves so as to provide the meaning within whicb "f~ .. are defi.ned. He
does not, as I argued, deny on the leve/ of sodologica/ ana/vsis. tbat tbere is no
such ''thing" as a woman. Lacan tells us that within tbe current system of gcoder
identity women are defined as just that, "things," mirrors, and fantasy objects for
men.
But there is a horrifying "reality" that is al least seemi.ngly CODDtCtCd to tbat
The Cal! to Judicial Respomibility I /39
definiton of women as "things.""' 1 In the United States, women are murdered five
times as often as men,"'2 and every eighteen seconds a woman is raped, while 61
the number of rapes perpetuated against men is statistically non-significant.
Similarly, a woman is battered every fifteen seconds while the number of husband
batterers is statistically insignificant. 64 In their individual lifetimes, nearly forty
percent of ali women will be victims of a violent assault."'s Of course, _these
statistics are also inftuenced by race and class; women are not equally subJected
to abuse and crime.
Yet, even with the crucial addition of the recognition of race and class within
the category of "Woman" itself, there is an obvious difference that makes .
difference between the lives of women and men. Toe role of systems theory is
to give us an explanation, not just an emprica! account of how a giv~n system
not only defines the difference between the genders, but also why th1s sys~em
seems to perpetuate violence against women in a way that it doe~ not aga~nst
men. Of course, no one would deny that the horrifying murder rate m the Umte_d
States affects ali human beings although, again, not equally. Even so, there IS
still a difference even in the types of crime women and men endure. In other
words, if we are to adequately understand the conditions in which w~men have
to live within this system of gender reproduction, we need an explanat1on of how
the system operates. Althougb Luhmann has not spoken to the question of whether
or not gender can be understood as a system, given his definition of systems, 1
would argue that we could reach the conclusion that the reproduction of gender
identity in the Lacanian sense can and should be understood as a s_ystem, becau~
in Lacan there is no outside referent such as biology. Gender 1s embedded m
linguistic structures which are self-replicating and which give meaning to sexual
difference.
More importantly, I am suggesting that we need sociological analy~:s, at.~
same level of abstraction as that of systems theory, to account for the facts of
violation of women. Without that, we are Jeft with the horrifying reality, but with
no explanation.
Luhmann argues that there are no conservative implicatio~s in his ~ystems
theory. I agree with him; I would also argue, however, that h1s co?cept1~n of a
system is crucial to an adequate feminist understanding of our SOCJ~ realtty - In
addition, I want to empbasize again that nothing in Lubmann 's analysts necessar-
ily denies that there are concrete conceptions of the Good embodied in "interna'.'
legal nonns whicb can provide for the evolution of the system. Toe _class~c
example in constitutional Jaw of such an evolutionary shift of the syste~ 1tself_,s
the decision in Brown v. Board ofEducation, whicb challenged the social reahty
of segregation. 66 Justice Warren argued that, at the very least, the doctrine of
"separare but equal" could never meet the standards of equality as they had been
defined in legal doctrine, at least not in a racist society. "Separate but equal,"
under this system, meant in our social "reality,'' ~te- but .uneq~. Justice
Warren relied on the embodied good of the nomos to JUShfybis dec1s10n.
 The Cal! to Judicial Responsibility I 141
~I
140 I The Philosoplry o/ 1he Limit

Toe preliminary suggestion I am making here, in accordance with other thinkers suggest that the metaphorical or ontological status given to differe.nce does not
deeply sympathetic with Luhmann's project, is that "normative closure" in Luh- matter For Derrida as we have seen throughout this book, the relauonal concept
mann's very specific sense does not mean that the appeal to intemal nonns, of difference is p~cisely what must be ~ons~cted. l hav~ argued that th~
O
including the idea of law as nomos, with its implicit appeaJ to the good embodied impulse for such a deconstruction is eth1cal, m that a relatto~ concept
in intemal nonns, is foreclosed. Such an appeal would aJlow for legal refonn difference cannot pay respect to the otherness of th~ Other. Agam, to retum to
and, as I have already suggested, Brown v. Board of Education is a classic the example of sexual difference, feminine sexual dtfference, as we have ~n,
example of the kind of refonn that can easily be included in Luhmann 's systems is erased not recognized in the definition of Woman's othemess as only gi;n
analysis. 67 Nonnative closure as Luhmann defines it then can aJlow legal reform, meaning in relation to Man. Yet, as I have also suggested, the example of g.en er
including refonn as seemingly drastic as that enunciated in Brown v. Board of "difference" is an excellent example of how difference_ is. en_compassed m the
Education, if such refonn rests on interna! rather than extemal nonns. . red fi ,s self-debm1talion. 1 am clearly
system's own operauons so as to e ne t 'f.
1
We have not yet reached the question of Levinas' sense of the Good as an making a distinction here between the transcendental and the system, even hm
'th Luhmann whether or not t e
irremissible necessity for ali subjects, as this conception addresses Luhmann's a peculiar sense. As a result, we nee d to ask , wi ' . al be
systems theory. Levinas does not hesitate to call bis understanding of the Good . "d , 0 parergonahty cannot so
quasi-transcendental analysts of Dem a s ogtc . . .
"religious." Luhmann 's sympathy for the Good, in this sense, is evidenced in bis ..
seen as empmcal. What Luhmann sat"d o Kant could be satd of Demda.
own work on religion. 68 Perhaps bis own view of Levinas' evocation of the Good But it can occur in many other cases as weil where distmct1ons.
are used as
f
would be close to Wittgenstein's "Whereof one cannot speak, thereof one must
be silent. ,,69 1 am just speculating here, because Luhmann has never directly
addressed Levinas. Even so, given my speculation, bis main challenge would not
'fi f
justifications. Thus, for ex.ample, every JUSU ca ion
transcendentaltheory must answer the question whetherthe. '.sttn

transcendentaland empirical is itself transcendentalor emp":cal. If e
:
f the law tn tenns o
d' . cf between
d' f
mtal,.
come from Levinas-a]though Levinas is clearly not satisfied with silence befare also somethmgtranscenucn -
al 15
tionis a transcendental one, then theempmc .. al
the Saying-but from what I have called the philosophy of the limit. al e Kant an empine
But the distinction itself may be an empine . on~ si~c . ' ar! at the
Why do I argue that it is the phUosophy of the limit that is Luhmann's rnost individual, introduced the distinction at a spec1fict11nem h_!~tory,ne Y
serious challenge? We have already seen, in the example of gender, that we need end of the 18th century (in his Critique o/ Pure Reason).
both a sociology and a quasi-transcendental analysis of the conditions which not t analysisoftheunderstand-
Ihavealready suggested thatthere may be asys ems h "sees" the
only malre a system possible but also delimit it, precisely at the moment that a . . . . h" h Id tu s back to the observer w o
mgof JUsttce as apona, w tc wou m u ulti ately
system is a system. Luhmann has succinctly summarized bis own disagreement 8 1
very definition of justice as involving an unresolvable p~d?x. . u bet meen th;
with Derrida on just this point. . . h h or not the d1st1nct1on w
I would suggest that the dec1s10n as to w et er . nd ,,.
. . al or transcendenta 1, 1s u eclU
empirical and the transcendental 1s 1tse empine Id
lnformation is, according to Gregory Ba1eson's oft-cited dictum, ..a difference decdable then one cou
that makes a difference." Regardless of what ooe thinks of their ontologica1 able in Derrida's specific sense of the word. 1f tt ts un 1 ' th
. . , . th de n as to whether or not e
and metaphysical states or their incamation as a script (Derrida) or similar only have an ethical positiorung v1s-a-v1s e ctsio fth' book has had
approaches, differences direct the sensibilities which malc.eone receptive to system is self-delimited or delimited by the Other. But ththen,Othi is_ d,~erence
.. , s e er1sa u,
information. Information processing can only take place if, beyond its pure
facticity, something has been experienced as ''this way and onJy this way"
which means that it has been localized in a framework of differences. 1be
a central point it is that this ethical pos1t1omng vis-a-vi
,
that makes a difference. Interestingly eno~gh, u
a difference that remains different--even 1f paradoxtc Y
L h
~a:. . lf
may h1mse recogruze
-be
yo
nd any attempt

difference functions as a unity to the extent that it generales infonnation, but to root it in a system. That difference is !ove.
it does not determine which pieces of infonnation are caJled for and which _.,. than ever before is that Jove
pattems of selection they trigger off. Differenccs, in other words, do noc de- What will have to be conceded more 1 ..uica11 Y ed as the basis
limita system; they specify and exteod its capacity for sclf-delimitation. 70 itself cancels out ali the c:haracteristicswhich could haothve serv n eods up in
. . through the er perso
and a mottve for tt. Every attempt to see . d . ere a vacuum
. d fa] of sincere an msmc
For Luhmann, in other words, differences are always relatiooaJ to the semantic empty space, in the umty oftrue an se, _j ., ot nrn.sibleto say

. h . . f . doment Toeu:aore1 1sn r--~
code which ultimately encompasses them. redefinesthem, OI" rejects tbem in tbe m w ich there is no cntenon o JU ., . hi of s stem and system,
everything. Transparency only exists in the relations 1:.nct !vironment which
process of its own operation. Undoubtedly we bear tbe e.cho of Hegel in Lub-
and by virtue, so to speak, of the difference of sy:m, e alone can be such
mann 's own dialectical account of bow difference. even if it is constitutive of the constitutes the system in the first place. Love ov
system, is, in the end, constituted by it. In tbis sense, 1.nhmann is incorrect to transparency .72
 142 I The Philosophy of the Limit The Call to Judicial Respon.sibility t 143

Indeed, Luhmann ends "Lo Th

Derrida focuses on and w h at tt that Luhmann focuses on in systems theory
1s
Levinas' ow n understandmg
. of
ve the
as Passion"
face to fawith a poem that beautifully evokes th e ":i? can be_understood to focus on different interactions with othemess and
A face in front of ce. eyse tff:rent mteractions may involve different conceptions of time '
et thts being said th e "t'1me" o the eth1cal
self-m'a relation and the "time"
of the
one
ex . mtenance of the system, although different, also need not be mutually
neither now an
only Y more subject tio:1us;; Although I am aware that Luhmann would disagree with this refonnula-
und~ta:i own co~c~ption of time, 1 want to refonnulate it as follows: 1fhe is
reference to be g1vmg us a partial and, yet, necessary "truth " which is that
intangible .systems operate thro ug h a concept1on
and fixed. 11 . of the present .m order to be' self-perpetuat-
m;ilsystems, then th_edifference between his sociological project, Levinas' ethical
Doesthe in between of 1
of the Other take
.
. ove wh1ch demands the ..
~:-ppear
osophy of altenty, and Derrida's philosophy may not be as great as would
Obviously tbese plac.e m tbe present? Or does it drecogmtlon of the othemess
next intervenf questtons cannot be answered h
Of course 100.
th .
emand another time frame?
ere. But the Y can 1ead us to my
~uh~: Both conceptions of time might be necessary for an adequate under-
of. how human ~ings engage with the Other and with Othemess.
. d' . 0 himself recogmzes that the system is other to the individua1 the
e simple po has
--~ is never red uced to a cog m. the mechanism. But bis focus, when he
context of this d' mt, and yet it is a
dichotomie
example is the dich
l~ssion,
s upon which w
is that Denida pm.nt that must be restated in the
contlnually de
estem metaphysics has bee constructs the rigid t0e
th ;;I and. not love, in view, is not on the individualin the ethical relation to
~r. His focus is instead on the system. 1 am suggesting in my discussion
~ty mda and Levinas that the shift in focus to the individual and her responsibil-
and the transcende otomy between the intemal d n thought to rest. A classic 1

these dichotomies h: 1: last chapter I ar aned the extemal, the immanent f; to the Other also demands a shift in the conceprion of time. ' This shift in
conception of legal . s1gruficance for the evoc gut. that the deconstruction of /lC~s can n~t be separated from Justice as conceived by Derrida, t,ecause it is
th 1 mterpretati a ion of the no f 1 .::.;ce that." our singular responsibility to the Qther. As in the example of the
e egal system is tha . on. Toe significance . mos o aw anda
possibility. Luhmann ,1 Derrida can be reinterpreted of thi~ deconstruction within
the system In . s systems theorv ali r as a thmker of transformative
t ge, the udge's responsibility is to give justice to the partieswho are bel=
;m or her. Toe judge's responsibility is to the actual individuals, not to the
. a specific ~ ows 1or evoluti b
bon precisely bec sense, systems theo d on, ut tt must be within ,y~tem. On a sociological plane, the system is "real." But any system can be
and extemal if .t~ the system must relyry oethsnot allow radical transforma
, t ts to re on e distinct' be
;:,}'ted to a :quasi-transcendental" analysis which shows us the !imit of that
appeal to "externa]" mam a system. Derrid . ton tween intemal . ty.' and whtch further shows us that the system thereby maintains tbe possibil
he argue that th norms to legitimate th a, unhke Habermas does not ity of its transformation. Again, this quasi-iranscendental analysis does not show
e system e system No 00 th '
a rigid distincti betw can only appeaI 1 . r, e other hand does Inatchan
th. ge w, 11happen, but only thattransformative cbange cannot be foreclosed.
on een the . o interna/ norm r ' th
is sense, sociological explanation can never simply displace the quasi
e conception of ha . mtemaI and th s, as I there could be
w
th e can now summarjze t 1s interna! e extemal as th bo . transcendental analysis of the philOsophy of the limit. But it is also importanl to
. and externa) can be e undaries y1eld
W ~te that the study of the operations of the sy~em shonld not be ideotified with
~ake a difference. De . ,the differences be efined.
mto systems theory tha~da s. philosepby of 1Luhmann and. Derrida that e engagement with Justice to which the Goodcalls us.
deconstruction of . unportant for . ~es three mterventions Systems theory has a crucial place in exptaining the self-maintenance of a legal
which we have n~d dichotomy be;ur d1scuss10n bere. The fust is tbe istem, but such a theory cannot explain ju,nce. 1,ecause Justice, at Jeas! as
4.Thesec---1 ___. ydiscussedandwhi h.een the extemal and the intemal f fined by Derrida, is precisely the limit of the legal system. Derrida's ,:onccptioo
uuu--iuKl thesecond. C IS central tO th '
~hy of the limit-is that .. is why J have reo e argument of chapter
tmply a beyond to the COOd1tionsof delimit' amed deconstruction the philoso--
redrawn, the beyond SYstem. No matter homg a system as a system necessarily
~;n Justice as aporia cannot be separated from bis understanding ofthe temporaliza
of Bein_gth".'ugh dijffrance. Diffrance disrupts the present that_wouldalJow
the self-1dent1ty of the system. No system, in other words, can phtlosoptucaUy
. to the w the boundari f
mtervention is what Derri system will . es o the system are bed~fined as ever perpetuating self-idenrity with itself, which does not mean that
To th'
e ird interventio the da has cal led thenecessanly
..1 . be im Jied ....... : second Derrida in any way denies the social reality that systemShave grcat staying power.
P 1. ms
by both Dcnida o, one we ha ogc of parergonality ... , .. Why would I choose to focus on the timit of the legal system as justice and its
and Le . ve focused
10 .
present. But we now needvmas. to add
IS tbe deconstru
furtber _ ~bon ~n ofthis tbecbapter. cngaged
privileging in
of the tela.tion to the deconstruction of the present that disruptstbe system, ratberthan
8 disbnction t,ctween wbat it is that the perpetuation of or the explanation for tbe systtm mrougbtbe prescnt?
 The Call to Judicial Responsibility f 145
144 I The Philosophy ofthe Limit

I am returned now to Luh ' including the self, is socially constructed. This, in tum, means for Fish that "we"
of the system. mann s uonic challenge to those who deny the "truth" ~hat our reality makes us. We could not be otherwise. As we have just seen,
th1s IS not Luhmann's position, which begins with the question of who is the
There 1s no conservat
systems orgamzin d ive bias in such a theory. A . obs~,:,eL Indeed, Luhmann's theory involves a very expsnsive conception of
adv1ce-and h g ynarmc stability. If th b. utop01et1csystems are
' is own autopo e o server d md1v1dual1ty.Por Luhmann, the differentiation of society Jeads to ever-greater
advisable to chao 1es1sdoes not t h oes not heed to this
H ge the topic of interest and ;ree b im to do sD-it would be attention paid to thc concrete individual. Furthet, according to LulunaDn. "thc
O O
e tums us toward th b serve the observer 16 ahenation effect" of the outside observer allows for the examination of what
remains latent or manifest in any system. On the level of systems theory, such
that demands that 1 sei:ver. Perhaps it is m .
"present" of this SOC. rn Wtth difference, the f!uOWO autopoi~sis as a WOffiaD an examination may not directly serve as a critical exposure-Luhmann indeed
women. You might t system and lega] system .re. and Just1ce, because the would insist it does not-but on the level of politics, there is no reason wby it
gender reproduction is :o: the legal system and1s !rof?undly threatening to c~not. Luhmann's reconstruction of individuality is important as a response to
these systems in this wa for my system that I h~v rtamly,. the "system" of Fish be.cause he shows us how society itself, and the understanding ofthe social
for why l choose this y. 1.am, of course, offeri e no ~hmce but to observe construction as individuality, may reinforce rather than erase the possibility of
system. There is l entry mto "reality" and ng a soctological explanation thc. critica] observer. Toe result of Fish's position is that social criticism and
bec ' am sure a " ' more specifi ':"1"al transfonnation are impossible. For Fish, to havc social criticism in legal
. orne mterested in "d systems" explanati f. ca Y, mto our legal
lt. In spite of this explan:~nstructing" the system ;; or wh~ a woman would mterpretation ora critical observer, Jet alone a standpoint by which to know when
the present can also help umn, however, the deconstru e~than m participating in "~al" transfonnation hsd happened, we wouid have to appeal to a transcendental
'.15to foreclose transfo s. understand why as ste c ion of the privileging of v1ewpoint. Since we have no transcendental or outside viewpoint, it follows that
i':'bility heips us to un':'t:,"th" Iban just ~vo:t~annot be self-enciosed so there can be no social criticism and no critica! consciousness. Change can take
smg ~e example of e rs . why re-evolution n ~on. Derrida's concept of place only as slow evolution, but not thrOUgh transfonnation, and the players

the hope for transfonnaf tructton of the full

the system. .
pre:
subordmation, the dec!n:der ~erarchy again, if; s: Just evolution, is possible.

ion. Perhaps as women, nce

ms theory can explain our
we of the system can g1ve
. us
may well never note the change. The system is run differently, but there is no
true difference from the system. Tbere is only evolution, not transfonnation.
Por Fish, in other words, Jaw is aiways evolving, but at the same time, and in
. But it ts important to need that hope to survive spite of his remarks to the conttarl', Iaw is not decomtrucrible. As Derrida
reminds us, the deconstructibility of law is possible only through tbe parado X tbat
IS the observer?"n note the significance Of
ob or the v Luhmann' fi it is only the undecomtructibUity of Justice that mai<es deconstruction possible.
se~.abonsofthesystemandery question implies th s rst question, "who
o;.;enague f , theref; at there .
f J ''. ~otrejection. Thi . ?re,atieastinalimited can be d,fferent l. Toe deconstruetibility of Iaw (droit), of legality, IegitimacY or Iegitimation
v ual distmguishes Luhm s tns1stence on the tan sense, the possibility (for example) makes deconstrUCtionpossible. 2. 'TheundeconstruCtibility of
.Staniey Fis h , 1s who would ann fro m th e rece s . ce of th e o b server as an justice also makes deCOOStruetionpossible, indeed is inseparable trom it. 3.
" pohssible. But the distinctideny that "critical"-obn~ers!on _of legal positivism of 1be result: decOOSuuction takcs place in the interValthat separatesthe urutecons
e eart of the debate of what
philoso between mmsformationabon
ondeco sndm any profound sense tructibility of justice frolD the dcconstruetibilityof droil (authorilY,legitimaCY,
th
d phy amounts to in la nsttuction and m evoluuon remains at
~?nstruction differs fro w. 1 will now tum; 0 horegeneraJJy, "postmodem" and so on).
19

Because for Fish there is no divide betWeen justice and law, the deconstruction
d1stmction between evolution m myandown parttcularly
. ow Fish
as this . s understanding of
lransfonnation difference relates to the of law is not possble. In this sense, Fish in not a decOOStructionist, but a legal

Tb e Significance oCtbe . Toe significance ofFish's positivism for legal interpretation is as foUows. We
positivist.
between Evolution and Dktindion have seen in the discussion of the aporias of Justice that judgment as judgment
1ransformation demands the suspension of rule following, otherWise application of the Jaw would
not be judgment, but only calculation. Fish, unlike Derrida, does not indicate the
leaFor Stanley Fish "
ves us only with' apostmodem"
.
. ms1ght, and aporias of QS1ice. Instesd be argoes that what "is is a system of roles from
self-eoclosed
Wha system. fo, Fish the .anal ys,s of more
sociologicaJ how specificall
the I y' legal positivism wbich no oOC can extract himself or tterself. Toe suspension of rule following
t deconstruction or.. J)OSbnodem"
' dentification
o f Iaw with
egal . system
. beco mes a that l)etrida rigbtfully argues is necessary for judgment is exactly what Fish
philOSOphyhas sho JUS~ce is inevitable.
wn USis that ali reality,

b..._ __
.... ..JB-
 146 / The Philosophy ofthe Limit ...1 ial Responsiry
The Call to 1...,,e 11 147

. . . which the opposirions of

insists cannot exist. As a result, "Doing What Comes Naturally" does not include er the ongm 10 rend the
judging. The problem, of course, is that a judge who does not judge cannot ~la~m of discovery, as if we could just::sc::.~ so forth, did not exist s~:ere10"But the
to do justice. And yet, the claim of legitimacy of law cannot be separated m 1ts nature and spirit, man and wom ciation in the pastas ifit_ ~ereon in .Derrida's
articulation from at least sorne concept of the good as embodied in the "intem~" soul apart. Rousseau seeks rec~~ s in its eschatological ant1c1pa~~d~ur way back
nonns of Iaw. This claim is part of running the very machine Fish cal Is law. F1sh power of bis message,,actually :: no simple origin we c:xi of polirical and
cannot avoid the confrontation with the nomos of law as easi!y as he thinks. sense of the "not yet. lf there pe the condit1onal m has been as
th cannot esca t f the never
Fortunately, as we have seen, there is also an effective challenge to le~al to in the future, en ~e fi ard the truth of the pas 0 h we remember
positivism through the deconstruction of the traditional conception of time, wh1ch ethical vision. We proJect .darwminds us again and a~am,thw e Omembering the
be"AsDem re mtru ,re .
helps us solve the dilemma inherent in Fish's own work. There is no system the "ought to . 1 th of the origin, we are, se the future only 1s
present to itself which can fill the universe, and ourselves as containers. for t!'t the past to find the ethi~a .truthe rhetoric of memory' becau
future. But we do so withtn
universe, and by so doing "foreclose" the future or reduce it to the contmuabon
of the present. as the anterior/posterior. ntal capacity"oriented
hat is no Ionger only a me resent which could be
This same time never is, will never have been and will never be present. Memory is the name of ':ies of the present, the past psent. Memory projects
There is only the promise and memory, memory as promise, without any toward one of the three m nt and tbe future pre f present. Toe
gathering possible in the form of the present. This disjunction is the law, the
.
dissoc1ated fr
om 1he presenl
andprese
it conslitutes the presence o u ...
82
tex.1of law and the law of the text. 80 itself toward the fu~: is the rhetoric of rnemory since
"rhetoric of temporahty the future as the ought to be
Deconstruction calls us to that promise and leaves us with that hope. The utopian . . also a tension toward
But this rhetonc is ,tute what was.
ism, if it can be called that, is in Levinas' reminder "that what took place humanly
memory can never exa ctly recons 1 _ ..... the past,
tially orientedtoW;u.u
has never been able to remain closed up in its site. " 81 As suggested in the
last section, this reminder is crucial for distinguishing between evolution and idering here is not essen viously existed. Memory
The memory we are cons medto have really and pre of a past that has never
transfonnation. The irnpossible, Justice, is what malees us confront the possible toward a past pre~nt;e;O to preserve"them, but ttSC:e form of presence and
as the limit to what has been established, even as the nomos of the law. stays with traces, m ~ch themselves never OCCUJ:! future, fu,m the to c~nte-
Given this confrontation, we can now see how to rethink the significance of been present, ttaces w to corne--come from f ''ttUlh ,, a recurrentdiffer-
always remam, . as it were, the furu...,___ 1 eemento ' a past w hieh had
tate
Derrida's deconstruction of Rousseau's political theory and its implications for . does no1 resusc1
Resurrection, w hich is always
___.its ,rese:nce,
legal interpretation. As discussed in the last chapter, many of Derrida's critics ..,...sent........ "
claim that the deconstruction of Rousseau theoretically undermines the very ence between a r- the tuture- because
possibility of political and ethical thought by showing that it must rely on an been present; it engages both discovery and inv~n?on f the
origin that does not exist. However, once we put Derrida's thought within the . retation must be . whether we call Jt mtent o .
In this sense legal m~ n of legal meanmg, We cannot escape the cond1-
understanding of time and temporalization I have presented here, we can see why there can be no simpl~ cn:1gt or sorneo(ber name.. tion is always an act;
this is not thecase. ForDenida, as we discussed in the last chapter, the Rousseau- founders of the Cons!1tubon tation. In this sense, m=. It is this insistence
ian community postulates an originary instant of coming together without a trace tional mood of legal mte~ we cannot escape_ res?' that separares Derrida from
of what has gone before. This originary instant is the festival based on an moreover, an act for :~~~~lity for our acts of J.u~;1;:; reduced to calculation.
unmediated unity in the face-to-face relations of the participants. As Derrida on the inevitable respo of precedent cannot JU
points out, Rousseau's vision privileges the living voice, speech is the vehicle of . h The remembfanCC
FIB.
co-equals who are literally present to one another as they codetermine their fate watk"and its ProgeDY.
as if they could stan again from the absolute beginning, the origin.
The Example of -:.:..:-- of Judglng .
There is also a more profound point that has been completely missed and one
which shows the significance of Derrida's temporaJization for legal intetpretation. Tite Act of Reme nsibility inherent m the
__..--~-Aing of respo . bel us
Derrida shows us how the inevitable failure to find the origin as the full presence boW tbis unucu,_...
. v and invent1on can P
We can now tum tothe ,elation t,etween disco ery. " .........---t,.nt.l will use
that Rousseau so desperately seeks opens up the space for the conditional mood. of - pe...-h,,.tmg p..........-
Derrida wants us to see that what masks itself as simple discovery is in fact of the judge's role to ~;.- (lis example, of course,
sbift our C()DCCPllOII my own unders
discovery through projection of tbe ought to be. ROUSseauargues from the Jogic Roe v. Wode to
 148 I The Phi/osophy o/ the Limit The Call to Judicial Responsibility I 149

eretums us to the woman as th

ourt was presented w, e
b
o server of the s ste
passive one of recollecting what is there in the origin. She also cannot just do

::i!.~'.~.i~::v;~ ~!i~:~:~:;h ;s ;:,:!: 1;:ns~';;;;i~:,f':i'~h~:

0

teed th.e nght to ~hoos: :ne MacKinnon has desc~'b ;';;',.cticut85should apply
whatcomes naturally, that is, follow the rules as if such a following were a fonn
of automatic writing. She is responsible for her memory and the future which she
promotes in the act of remembrance itself.
b~ conceiving it as a . rt10n, subject to sorne e e _dec1S1on,"guaran- I_ am using responsibility in the sense that we are accountable for our own
pnvacy.',s,; MacKmno pnvate choice, included ou~terva1lmg considerations actlons and our judgments. We are responsible precisely because we cannot be
decision m the nght ton, annong othen< has challe ::.it e constitutional right , reduced to automatons who cannot choose to do other than what comes naturally.
for the decision, but o:~vacy; My focus, howev:: is the normative bases of the pons1 t tty has often been thought to turn on a positive account of a transcen~
Res "b'I'
~n used to justify the un~m,staken "phenomenol~g/' O ;n the nonnative bas,s dental or autonomous subject. Only a subject that can rise above circumstances,
.e.argument, supposed enrunmg ofthe princi les J:dgmg that has now so t.he argument goes, can be held accountable, because only an autonornous
ongm in the Constituti I~ legal, not moral, goes : . wh1~h Roe was based. subJect can achieve meaningful freedom to choose. lf we cannot do otherwise,
pnvacy to be "applied'? itself ~or the right of pnvomethmg like this: there is no ~en responsibility beco mes a misnorner. But such a view, which completely
We will now tum to to abortton. acy, Jet alone for the right of identifies the subject with the "machine" or system. depends on the myth of full
presence and the privileging of the present that has been deconstn1cted. Similarly,
enunc1ated
Th the dec.lSIOD
. m . the
Roquestion of wheth er or not th
e charge is that the . e, were unfaithful to . e Judges, when they the machine or system is not justa self-replicating presence. The machine is only
reading as if this coud: not simply recollect prthe~ designated role as judges. ~resented through its enforcers. The very functioning of the machine demands
1
~e ~f do~;
the law to fit the "n ~ithout involvm:Can ent and then enunc1ate ts its enforcers. It is our irreducibility and the irreducibility of the machine to a
nghts. It is not just that ;:w s1tuation, the demand ;valuatwn. Instead, they self-contained context that make our responsibility inescapable. This is not,
admittedly, a positive account of the subject. But deconstru.ction reinforces an
~Id be unden<toodto "fit" e Judges had competm c women for reproducnve
. ne-although I think . ~e example of abo . g onstituttonal views which account of the irreducibility of the subject to a context which is necessary for the
1magma~1ve"recollecti~t t~.!vtdent that they hadrt1on and they chose the wrong strong sense of responsibility that Derrida emphasizes. We have to think again
~or the Judge to recoU n. There IS no firml such norms available for their about the responsibility to memory that is demanded by deconstrUction and the
JUdge when enunciatm;! :a~ coul~ justify R:e _r;;~d constitutional precedent very deconstru.ctibility of law.
are understood to be based g dec1s1on is the recoll only correct act for the
!:'1efoundat1onal origm of c on .the intent of the fath ectmn of past decisions that Toe sense of a responsibility without !imits, and so necessarily excessive,
incalculable, before memory;and so the task of recallingthe history, the origin
1or Roe
and in that IS
consisten! withonstJtutionaI
this . meaning, theners, or som oth er notion of
there and subsequentdirection, thus the limits, of concepts ofjustice, the law and law
law andthe co~n<eof this chapter v,ew of Judging." I hav can be no justification (droit), of values, nonns, prescriptionsthat have t,een imposedand sedimented
d . JUdgmg completely . ' that this unden<tand e argued, elsewherew there, from tben on remainingmore or less readable or presupposed.As to the
th";'ismnsbec.ausesuch inte,,re";,:sunden<tandsthe role :f. of the relationship of legacy we have received under the name of justice, and in more iban one
language, the taSk of a historical and interpretivememory is at the heart of
undpeq,etuahon, of the nonns" "':iialways involve the . mterpretation in legal
deconstnaction,not only as philologico-etym0logical task or the historian's lask
me;::'i,"'!'.;fprimarily involve :moryed" in past decisi.1:tt;atio;: not. merely
but as responsibility in face of a heritage that 91is at the wne time the heritage
memory can never just capture th m the sense of rec 0 11 en t Judgmg was
, as well as th e past De . ection of preced of an unperativc:or of a sheafof injunctions.
~~~::tandu~derstandinge ;e:.::s,.~ti1!alto 1t,. is th~~! ancalallysis
of the litru~n~

:ry In this unique sense, geneaiogy beeomes a part of judicial integrity itself. < Toe
I
0
mg of the ph 1ct me Y importan
tradition, or even the systent, thfOugh the critical observer, is called to remember
tum to critique any jusn:~o~nology of m~ol~es. Th,s more a t ":,.'::
its own exclusions and prejudces. We are called upon to remember the histof)'
1rrespons1ble act of Judg ation for the rev:r 0 In JUdging can be . in which woJileD did not have the right to an abortion. We have to remember
Wecan mg. Roe as th u m
what the general conditiOOSof women were during those times in histof)' in which
of Roe to show that the d
conceptionu:; :: r;;;odalge~y. e correction of an
th ttJesof time econs . abortion was disallowed. Qenealogy is not invoked for the sake of debunking.
s e ro e of tbe judge. The jud e has implications t tructmn of the traditional aenea}ogy, in tbe sense that I use it, is crucial to the integrity to justice that
can never be red..--~ tothethway
ystem who simply recollects gprecedcnt . we think of
about (leolaJtdsmatwe also examine the existing limits of actUalized concepts of justice,
Her sub,,.,..,., e mstrument the
~- .. ve rol e ts
not merely the
 150 I The Philosophy 0,, <he L1mu
.

The Call to Judicial Responsibiliry I 151

partic~lariy as these exist in and
Integnty to Justice, the at
:;ponsibility: to expose
contfrrn~::t:~n
::~~~s~t:~
' IX:rpetuate, the patriarchal
w~h
b:~
w=~I
~f the legal system, a:t
Justice, demandsno
rd

estathblish~das law through

.
el::fr:i':/'::Jwomen
theygo along. Rehnquist was responsible for considering the history in which
were not allowed to have abortions and what that meant for the exercise
remstatement. m o er ctrcumstances, its of t~ir bodiiy integrity. But, equally imponant, he was calied by the demand of
lus~i~efor women to considerthe reasons far tre compromise in Roe. The Webster
This re""'"' .._.lity toward m
,--ns1.,, . decision certainly shows why the deconstructibility of law promotes anxiety. As
of responsibility th emory Is a responsibility be~
behavior of ou that re~ulates the justice and appro . ore the very concept women, our rights can always be undennined. But we cannot protect against the
' r eoret1cal p pnateness (juste ) f deconstructibility of law by denying its possibility. Our only protection is in the
o f responsibilit is i , ract1cal, ethico-po!itical de . _ ~se o our
(propert., . Y_ nseparable from a who] c1s1ons. This concept call to responsibility, which is precisely why the recognition that law is always
"J, mtent10nality e network of
su~ect self , w11I,conscience con . connected concepts deconstructible increases rather than decreases responsibility.
' , person com - ' sc1ousness lf .
of this network of, mun.1ty,decision,andsofo h , se -consc10usness, For Rehnquist, the fact that the Roe framework was difficult to apply statutorily
a move tOwllJ'd. concepts m their given or d ) and any deconstruction led him to question whether it had any constitutional basis. To quote Rehnquist:
deconstruclionc:,r;re:ponsi~Hityat the very moominant state may seem like
s oran mcrease in responsibi:;~!, that, on the contrary, In the first place, the rigid Roe framework is hardly consistent with the: notion
In Roe, Justice Black of a Constitution cast in general terms, as ours is, aod usually speaking in
not one the Jus . mun confessed that the . general principies, as ours does. The key elements of the Roe framework-
whether and whetlce~ could answer. 94 Biackmu qu:st1on of when life begins was trimesters and viability-are not found in the text of theConstitution or in any
responsibJy oper;t~ e,:s ~comes a legal persa:, In :wever, was a ble to decide place else one would expect to find a constitutiona1principie. Since the bounds
lected a legal norm fro ith1n the first aporia of : ti profound sense, Biackmun of the inquiry are essentially indetenninate, theresult has been a web of legal
distinctions about the m within our heritage th ts ce. He imaginatively recol- rules that lia:vebecome increasingly intricate, resembling a code of regulaons
&- . status of the a would allow t . rather than a body of constitutional doctrine.HJO
a 11cshJudgment in th ,etus for the us o make crucial
to abortion In th. e new conditions created Jurposes of law. He had to make
Therefore, although Rehnquist acknowledged that "[s]tare decisis is a comerstone
to a new stuati~s ~~e, he applied the nonn ( ":ornen 's demand for the right of our legal system, ,,10, he nevertheless felt tbat the indeterminacy of the Roe
0
right women shoul.d h is "application" clearly pnvacy developed in Griswold
ave to p was also a dg framework. was sufficient justification to ignore it as precedent.
terms of the second . nvacy and why aborf JU ment about what Perhaps the most striking aspect of Rebnquist's decision was its undennining
0
~Olllall's ITK)vement~~ he _wascalled to make : ; P~ of that right. In of the principie which justified the erection, an<:I
l use that word deliberately, of
Judgment within th . 10 JUstice, and he d"d ec1S1on IR response to the the Roe frarnework. 102 This is most clearly shown in Rehnquist's interpretation
activism that is inev~,::;;;~as.of justice, we can ~-nce w_e.read Blackmun's 103
of the preamble of the contested law restricting abortion. The preamble stated:
accordance with . ~nJu~t and de . . is dec1s1on as the kind of
respons1bility and c1s1on but an . .
is no less an activist . the caIJ 10 jusf ' activ1sm exercised in "findings" by the [Missouri.1state legislarurethat "'(tJhelije ofeach h~manbe~g
w~~n. _Blackmun c~n!':c!:s res~nsible, and :;/~ we wil! see, _Rehnquist begins at conception," and that "unbom chlldren.have pro~le ln~rests m
sh1ftmg interests , the lhe tlimester :-...,,__ the caU of Justice for Iife, health, and wellbeing." 1be Act furthern:quU"CS that ali M1ssounlaws be
O
Justice Rehnquist found h"
respecr
ive lives of th
ua.u1ework9~b
ased upon the State's interpreted to provide unbom chil~ ~ith the same rights enjoyed by ot~;
1msetf fu e woman and fi persons, subject to the Federal Coosbtubon and {SupremeCourtJpre,cedents.
segment of the Roe fi m ndaJnenta.1 di etus. In dissent
s1xteen yean later ramework.
in W b
96
sagteement'' th
w1 almost every
'
As Rehnquist explained. "~tltie:preambJe be.~ simply to express .... a
Re~n~~ist failed to ~olle:t sterv. Re~rod~tive Heaith Se . 97 value judgment favoring cbildbirth ov~r aborton. Of counie_, that val~ Judg-
dec1s1s1s a constitutional . ~ent1al histrv-., F. /"Vices, Ch1ef Justice ment cast as a finding of fact, undennines the fundamental bas1s upon whtch the
I Th pnnc1p le a 1. ...,,:t irst he . .
aw. en, by identifyi PP icabJe oniy h ' mamtained that stare Roe ourt limited tbe states' interference with a wornan's right to choose whether
practice' ,,9Jl he substituted n;. Roe as "unsounc1 in e~ Used to recollect "good" to have an at,ortion. 1be preamble establishes that life begins at conception and
whi]e . . 1sown sr,.n.1~_.._ . "".,nc1ple and ..J __ 106
m~ntaming that differences ~~Inlieuofthase . unwo1lj(ble in that a "fetus is a person'" with "protectable interests in life, health, and
now sec JUst how deconstructi ? 1 fact JUstified ~~ 1.ch already existed, wellbeing. ,.i01 'fberefore, the case for a woman's right to choose whether to
differs from the position that on, w1th its emJ>hasisnot rev1s1tmg Roe. 99 We CaJl tenninate bet pregnaocy"collapses, for <he fetus's right to life would then be
wouJd argue thatallJ.Udon TesJ)Onsibility to history guaranteedspccifically by tbe [Fourteenth_] A~nt. 108
By allowing the
gesdo '
is make things up as Missowi statUfCto SlaOO,tbe Web.nerplurahty authorized the supersession of the

l
152 I The Philosophy ofthe limit
woman's privacy right. Rehnquist interpreted the preamble of the statute in
deliberate disregard of the genealogical considerations demanded by integrity.
These considerations are demanded by the ca11of the Other for Justice.
Likewise, in Akron v. Akron Center for Reproductive Health/ 09 in dissent,
Justice O'Connor (joined by Justices White and Rehnquist) characterized:
[tJhe Roe framework ... {as] clearly on a collision course with itself. As the
medica! risks of various abortion procedures decrease, the point at which the
State may regulate for reasoos of maternal health is moved further forward to
actual childbirth. As medical science becomes better able to provide for the
separate existence of the fetus, the point of viability is moved further back
toward conception.' 1
This, she felt, would render the principie of the trimester approach worthless.
Toe compelling state interest at the point of viability in the potential life of the
fetus would clash with the woman's right to decide whether to termnate the
pregnancy. lb.is looming confrontation would create in fact what Justice O'Con-
nor already believed true. O'Connor appealed to what was already understood as
the state's interest in protecting the fetus, to undermine the woman's call for
Justice.
Toe choice of viability as the point at which the state interest in potential Iife
becomescompellingis no less arbitnuy than choosing any point before viability
or any poinl afterward. Accordingly, 1 believe that the State's interest in
protecting potential human life exists throughout the pregnancy. 111
O'Connor, then, engaged in an irresponsible act of judging not by imaginatively
recollecting her projection of the future, but by failing her responsibility to
remember the actual conditions women would again face if the Roe framework
was dismantled. Those conditions had been graphically described. Tbey needed
to be addressed. Instead, O'Connor appealed to the state's interest in the law,
rather than to justice for women. Viability, as essential to the Roe fnunew~,
was clearly a compromise. As we have seen, in my interpretation, the comJJn:'nuse
should be understood within Blackmun's attempt to operate within the aponas of
justice. Toe call of women was for Justice. What they got, indeed the only "thing"
they could get from the legal system, was law. But the law, the new applic~on
of the nono of privacy, was an act of responsibility to memory in that it recognzed
the actual conditions in which women had been denied the right to abortion. Of
course, the fetus can itself be recognized as Otber, with infi.nite right. But wbether
or not this recognition is to be embodied in law, the Justices must direcdy confront
the woman as Otber, they cannot simply follow along with the system whicb, as
constituted, allows the rights of women to go unnoticed.
We can now return to why the deconstruction of the traditional conception of
the modalities of time has implications for the way we think about the role of tbe
judge. What we have seen is that wben the judge remembers the past sbe does
The Call to Judicial Responsibility I 153
so through the "ought to be" implicit in the not yet of the never has been. But
we can also see the difference between this conception of the future of justice
and the traditional Kantian projection of an horizon. In the first place, it should
be obvious that such horizons, as traditionally defined within our heritage, have
projected rational persons as interchangeable, yet it is unclear whether an ideal
premised on interchangeability can really help us justify abortion. Here we see
a specific example in which the projected ideal, premised on interchangeability,
may itself be contaminated by history, in this case patriarchal ignorance of the
specificity of femininity. Secondly, as the slogan from the 1970s asserted,
"women want abortion now." Thus, in this demand, we are retumed to the third
apora of justice: Justice does not wait.
We do not remember through the logic ofrecursivity, although Justice O'Con
nor implicitly relied on such a logic when she appealed to an established state
interest. If we undermine the "right of abortion," we can only do so through a
direct appeal to competing conceptions of the concrete Good embodied in the
nomos. Changing technology, which is what O'Connor pointed to, is not the
issue. According to the philosophy ofthe limit, an "is" cannot simply undennine
an "ought." Judicial interpretation is not the calculation that "fits" pieces into a
puzzle. Judicial interpretation demands judgment. Judgment demands more than
a description of how two cases "fit" together. When the judge 'judges' she justifies
precedent. As a result, the question of fit can never be legitimately used to
enunciate an articulated norm, because the judge must justify her decision and,
indeed, is even called u pon to justify her decision by the system of modem law.
lfthe norm is wrong, then it must be condemned through evaluation, understood
within our legal system as an appeal to the nomos of the law. 1 have suggested
that a part of this evaluation must be a recognition of the conditions of women
and the conditions in which the right of abortion had been denied. Both aspects
of this evaluative process are demanded by the exercise of responsibility to
memory. Toe question is not whether Roe fits into our constitutional seheme,
because every new decision raises the question of whether our constitutional
system is acceptable or, in the terms of systems theory, whether the established
nomos of the law is reconcilable with its own projection of a communal good.
Again, we are retumed to the first aporia of justice. Roe was an attempt at fresh
judgment based on this responsibility to memory. Privacy may not have been the
"best norm." I believe that it is not. 112 But the attempt was still made to heed the
call to Justice, notas an extemal nonn, but as the embodied good of the nomos.
In Biackmun's dissent there is also an implicit appeal irreducible to the Good
implicit in the nomos. Toe appeal, l think, can best be understood asan appeal
to Justice in Derrida's sense of Justice as aporia and yet, as a call that demands
that the judge respond. In the recent decisions, we find the failure to heed the
can, hidden by the rhetoric of fit. And yet, even Rehnquist recognized that it is
only good law that is to be followed. Unless one can show that there is a past
Pl'CSentor a present past that merely evolves, reliance on the logic of recursivity,
p

J54 I The Philosophy of the Limit

including the rhetoric of fit, is an impossibility. lt is precisely the contribution of

deconstruction to show us that such a present past does not exist. By doing so it
shows us why we_cannot avoid appealing to the "ought to be" when we interprct
precedent. Integnty demands that we face the call to Justice and the endless
transformative demands on the legal system which justice demands of us. We are
6
left with a simple command and an infinite responsibility. Be just with Justice.
Toe Violence of the Masquerade:
Law Dressed Up as Justice

From our childhood, most of usare familiar with the fairy tale '1be Emperor's
New Clothes." Throughout this book I have challenged a reading of "deconstruc-
tion., that has been proposedby its friends and its foes in legal circles. My
decision to re-name deconstruction the phllosophy of the limit has to do with the
attempt to malee the ethical message of deconsbUction "appear." Toe more
accepted readings understand deconstruction to expose the nakedness of power
struggles and, indeed, of violence masquerading as the rule of law. With1 this
exposure, the intetvention of deconstruction supposedly comes to an end. Toe
enemies of "deconstruction" challenge this exposure as itself an act of volence
"'.'cb leaves in its stead only the "right" of force and, as a rcsult, levels the moral
~erences between legal systems andblurs the ali-too-real distinctions between
different kinds ofviolent acts. We have seen this critique specifically evdenced
tberesponse to Derrida' s writing on Rousseau. 1 have countered this interpreta-
tion as a fundamental misreading, especially insofar as it misuoderstands tbe
Derrideandouble gesture.
At first glance, however, the title of Jacques Denida's essay, "Force ofLaw:
1be'Mystical Foundations of Autbority,' " 2 seems to confirm thls interpretation. 3
It also, in tum, infonns Dominick LaCapra' s subtle andtboughtful commentary,
wbich evidences bis concem that Derrida's essay may-in our obviously violent
WOdd-succumb to the allure of violence, rather than belp us to demystify its
seductive power. I refer to LaCapra's text becauseit so succinctly summarizes
the political ami ethical concern that deconstruction is necessarily ..on strike"
against established legal norms as part of ts refusaJ to positively describe justice
as a set of established moral principies.
To answer that concem we needto examine more closely the implicit position
of lbe critics on the significance of right as establisbed, legal nonos that "decon-
~on" is accused of "going on strike" against. 1bis bccomesextremely
IIDpOrtant because it is precisely the "on strike"postureootonly beforcestablished
legalnonos, but also in the face of the very idea of legal norms that troubles
l.aCapra.Undoubtedly, Derrida'sengagcment with Walrer Benjamin's text, ''The

!SS
 156 I The Philosophy of the Limit
Critique of Violence, ,,4 has been interpreted as further evidence of the inherent
danger in upholding the position that law is always deconstructible. lt is this
position that makes possible the "on strike" posture toward any legal system.'
But it is a strike that supposedly never ends. Worse yet, it is a strike that
supposedly cannot give us principies to legitimately curtail violence. This wony
is a specific form of the criticism addressed in chapter 2 that deconstruction, or
the philosophy of tbe limitas I have renamed deconstruction, can only give us
the politics of suspicion. I, on the other hand, have argued throughout that
deconstruction, understood as the philosophy of the limit, gives us the politics of
utopian possibility. As we saw in the last chapter, the philosophy of the limit,
and more specifically the deconstruction of the privileging ofthe present, protects
the possibility of radical legal transfonnation, which is distinguished from mere
evolution of the existing system. But we still need to re-examine the stance on
violence which inheres in Derrida' s exposure of the mystical foundations of
authority if we are to satisfactorily answer bis critics. To do so we wilJ once
again retum to the ethical, political, and juridical significance of bis critique of
6
positivism. The case we will examine in this chapter is Bowers v. Hardwick.
But let me tum first to Derrida's unique engagement with Benjamin's text.
W alter Benjamin's text has often-and to my mind mistakenly-been interpre
ted to erase human responsibility for violence, because the distinction between
mythic violence-the violence that founds or constitutes law (right}-and the
divine violence that is its "antithesis" because it destroys rather than founds,
expiates rather than upbolds, is ultimately undecidable for Benjamin. 1be differ
ence between acceptable and unacceptable violence as well as between divine
and mythic violence is ultimately not cognitively accessible in advance. We will
retum to why this is the case later in this essay. Lawmaking or founding viol:eoce
is then distinguished, at least in a preliminary manner, from Iaw-preserving or
conservingforce. We will see the significance of this further distinction sbortly
If this undecidability were the end of tbe matter, if we simply tumed to God's
judgment, there would be no critique of violence. Of course, tbere is one interpre-
tation already suggested and presented by LaCapra that Benjamin--and then
Denida--does erase the very basis on which the critique of violence proceeds.
7 it in an absolute perfonnative whose presence always escapes ~ 1be law 15
But this interpretation fails to take notice of the opening remioder of Benjamin's
text, to which Derrida retums us again and again, and which structures tbe
unfolding of Benjamin's own text. To quote Benjamin:
The task of a critique of violence can be summariz.edas that of expounding its
relation to law and justice. Por a cause, however effective, becomes violent,
in the precise sense ofthe word, ooJy when it bears on moral issues. 1be spbere
of these issues is delined by tbe conceptS of law and justice. 1
since Benjamin carefully distinguishes between different kinds of VIO--.. -
Critique, in this sense, is hardly the simple glorification of violence per se,
lndeed, both Benjamin and Derrida question the traditional positivist andnatural
Law Dressed Upas Justice I 157
ist justifications for violence as legitimate enforcement for the maintenance of an
established legal system or as a necessary meaos to achieve a just end. In oth~r
words, both thinkers are concemed with rationalizations ofbloodless bureaucrat1c
violence that LaCapra rightfully associates with sorne of the horrors of the
twentietb century. 10 Benjamin 's own text speaks more to the analysis of different
kinds of violence and more specilically to law as law conserving violence, than
it does to justice. But Derrida explicitly begins bis text, ''The Force of Law,"
with the "Possibility of Justice. " 11 His text proceeds precisely through the.conlig
uration of the concepts of justice and law in which the cri_tiqu~of v1~lence,
understood as ''judgement, evaluation, examination that prov1des ttself w1th the
meaosto judge violence,"
12
must tak.e place. . .
As we have seen, it is only once we accept the uncrossable d1vule between law
andjustice that deconstruction both exposes and protects in the very deconst"!"c-
tion of the identification of law as justice that we can apprehend the full pract1c~l
significance of Denida's statement that "decoostruction is justice."u What is
missed in the interpretation I have described and attributed to LaCapra is that the
undecidability which can be used to expose any legal system's. process. of the
self-legitimation of authority as myth, leaves us-the us here bemg s~t?cally
thosewho enact and enforce the Iaw-with an inescapable respons1bil1ty for
violence, precisely because violence cannot be fully rationalize_d and theref?re
14
justified 0 ad.vanee. The "feigning [of] presence" inherent m the. foundmg
violence of the state, using Derrida's phrase, disguises tbe retrospec~v~ .et of
justification and thus seemingly, but only seemingly, erases respCil,stbthty by
justification. To quote Derrida:
Herewe ''touch" without touching this extraordinaryparadox:the inaccessible
t:ranscendenceof the Jaw before which and prior to which "man" stands fast
only appears infinitely transcendent and thus theologicalto the exten~~ so
near hlm, it depends only on him, on the performativeact by ~hich he msbtutes
it: the Jaw is transcendent, violent and non-violent, because lt ~nds on1~on
who is before it-and so prior to it--on who produces it, founds tt, auth~s
transcendent and theological, ami so always to come, alwayspromtsed, because
it is immanent, finite and so aiready past. . . . .. ili
OnJythe yeMocome(avenir) will produce mtelhg1bihtyor interpretab 1Y
of this law. s
. h "th is ...-niected 1ustification.
Law, m other words, never can cate up w1 1 :-.1 . ..
Tberefore,there can be no insurance of a metalanguage m relabon 16to the per
te tation " As we saw
formativity of institutional language or 1ts donunant m rpre . .
in the last chapter, this insistence that there can be no metalanguage 10 wh1ch to
establisb the externa!" nonos by whicb to legitimate the legal s~tem separa~
Derridafrom Habermas. The question then becomes, what does it mean ~
cally for the field of Iaw that we cannot have such insurance, other than that ti
 Law Dressed Upas Justice f 159
158 I The Philosophy o/ the Limil

can be interpreted as the myth of full readability. These myths.' as Fish_well

separates Derrida from Habermas' neo-Kantianism? For LaCapra this lack means
recogoizes conserve Iaw as a self-legitimating machine by retuming legal ID~-
that we cannot in any way whatsoever justify lega1 principJes of insurance. If we
. ' ed rigin that repeats itself as a self-enclosed hermeneutic
cannotjustify legal principies, then, for LaCapra, we will necessarily be Jeft with pretatton to a suppos o . . th d "th the
an appea1 to force as the only basis for justification. To quote LaCapra: circle. This, in tum, allows the identificat~n of JUstlce w1 Iaw an w1
perpetuation of the "current" legal system. . f
A second movement at !east seems to identify the undecidable with force or To "see" the violence inherent in being be/ore t~ la~ IIl the many_senses
even violence and to give to violence the power to generate or create justice thatphrase which Derrida plays on in his text, Jet us imagme the scene m Geoakr~ta
and law. Justice and law, which of course cannot be conflated, nonetheless ,,, k 21 T O men are peacefully m mg
that sets the stage for Bowers v. Haruw1c w . ed
seem to originatein force or violence. Toe extreme misreading ofthis movement love Jittle knowing that they were befare the law and s~n to proc1aim
would be the conclusion that rnight makes right-a conclusion explicitly re- guilfy
jected at one point in Derrida's essay but perhaps insufficiently guardcd against
at others."
of sodomy as a criminal offense. F1sh's glee is in showmgite impote~~
andI am using that word deliberately-0f the philosophical cha ~ng; or
critique ofthe Jega1 system. Toe law just keepscoming. RememTh" e c.
1
ri~:x.
the
ghost story "Bloody Bones" to help you envlSIOil the scene e 1aw is on
For LaCapra, in spite of his clear recognition that Derrida explicitly rejects the t heck the Jaw-but to no avai -
idea that might makes right, there is still the danger that undecidability will lead tirststep. The philosopher desperate 1Ytnes O c . N
to this conception of ]aw and the role of legal argument and justitication within by appealing to "outside" nonns of justice. Toe law is o~ th~ second_step. .w,
. h I bine wh1ch is operatmg agams
Jega1 interpretation. But, indeed, the opposite position is implied. Might can lhefeminist critic tries to dtsmantle t e aw mac rad ard he
never justify right, precise/y because the establishment of right can ne ver be fully her Again the Jaw simply wipes off the criticism of its masque e . re,
, rel ant Toe 1aw 1s on
rationa1ized. It aiso does not lead to the replacement of legal argument through het~ual bias, as irrelevant. :11e !":'
defin~s what ::Cs ev iscl thisforce qf
an appeal to principie with violenc.e, as LaCapra seems to fear it might, if taken thethird step It draws closer to 1ts v1cums. Fish adm prec d ptd phi
to its logicai conclusion. law, the so-c.'tlledpotency, tokeep coming inspiteofitscritics_an ~;ex~ b;
To emphasize once again why deconstruction does not reduce itself to the most cal bankruptcy, a bankruptcy not only aci:nowledge~ bu~o~t;u and what winds
recent and sophisticated brand of legal positivism developed in America which, Fish himself. Once it is wound up, there 1s. no stoppmg ;
it up is its own functions as eiaborated m the myths
O
t culture. Thus,
of course, asserts that ntight does indeed make right, it is useful to again contrast egall ptured by its
t 1nsofar as we are ca
"deconstruction" as the force of justice against law witb Stanley Fish 's insistent although law may be a human construc . 'al d onstructibility, has
identitication of law withjustice. 18 Fish understands that as a philosophical matter mandates, its constructibility, and therefore its potentl ec
law can never catch up with its justifications, but that as a practical rea1ity its no.. ,,22
consequences. . akes tseJf felt in spite of
functionai machinery renders its philosophical inadequacy before its own claims In Bowers we do indeed see the force of la~. as it m . ~ite eo~cludes and
irrelevant. Indeed, the system sets the limit of relevance. The machine, in other the criticisms of "the philosophers" of the opimon. Ju~tic~ the right to make
words, functions to erasethe mysticai foundations of its own authority. My upholds as a matter of law that the state of Georgia tal,_ defending the
. . 1 fti z:i Sorne commen v,.,,
critica] disagreement with Fish, a disagreement to the support of which I am homose xual sodomy a cnnnna O ense. . 1
of the founding fathers.
. h . . the myth of the mten
bringing the force of "deconstruction," is that the legal machine he celebrates as op101on, ave rehed precise 1y on . f the founding fathers
a marvel, 1 abhor as a monster. Once again, as in the last chapter, we are retumed 'Theargument is that there is no evidence that th~ :tet~t for homosexuals.
to the divergent viewpoints of different observers. wasto provide a right of privacy or any other kin . n f this position repeated
In the case of law, there is a reason ro be afraid of ghosts. But to see why I Th e argume~ts agamst. th h "J ophical justificat1on o
e P I os. . blematic when speaking of living
think the practica1 erasure of tbe mystical foundation of authority by the legal
system must be told as a horror story, let me turn to an actual case that embodies
the two myths of legality and legal culture to which Fish consistently retums us.
Wri.ters,for all the reasons discussed 10 wntmg
case of interpreting dead writers who have been sil
00 1
tn1
by Fish are obv1ous. Toe concept of t~tent ~s.pro e al interpretation. But in the
O
n the issue the subtle
ubtle bdt are mani-
For Fish, contemporary American legal interpretation, botb in constitutiooal law .. . . h t t areno ongers ,
tomplexu1es of mterpretmg thro~g m e~ ' . tent aJways involves construction
and in other areas, functions primarily through two myths of justification for 10
festly ludicrous. The process of mterpreun~ uces the intent. But here, there
decision. 19 Toe first is "the intent of tbe founding fathers," or sorne otherconcep- once there is a written text that supposedly mtrad thefio-,,ing fathers never
tion of an original foundation. The secood is "the plain meaning of tbe words," . 1 f . simply t,ecause wiu
IS on y silence, an absence o v01.ce,. s that there is no right of homo-
10 speax.
whetherof the relevant statutes or precedent, or of the Constitution itself. In lddressed homosexuality. That th1s stlen_cerne8D of it, is clearly
of "deconstruction," even understoodas a practicc:of reading, lhe secood SCXualityand they thought it so self-ev1dent as never
........................................... a,.., ..................
160 I The Philosophy of the Limit
only one interpretation and one that can never be clarified except in the infinite
regress of construction. Since the process involved in interpreting from silence
clearly entails construction, the judge's own values are involved. In this case we
do note ven need to go further into the complexities of readability and unreadabil-
ity of a text, because we are literally left with silence, no word on homosexuality.
But in Justice White's opinion we are, indeed, retumed to the problem of the
readability or the unreadability of the text of the Constitution and of the precedent
that supposedly just "states" its meaning. Justice White rejects the Eleventh
Circuit's 24 holding that the Georgia statute violated the respondent's fundamental
right "because bis homosexual right is a prvate and intimate association that is
beyond the reach of state regulation by reason of the Ninth Amendment and the
Law Dressed Upas Justice f 161
1
. d ,h "fam11y marriage or procreation,"~ even though
bave everyt h mg to o w1 , , . . .
Justice White argues the contrary position? As a result, h1s very mte~";!at1on of
the "privacy" cases-as being about "family, ~age,_ or proc~atton -could
be used against him. Can White's blindness to thts obvtous ~:altty be se~arated
frombis own acceptance of an implied heterosexuality as Jeg1t1mateand, mdeed,
the only right way to live? . .
Justice White's opinion does not simply rest on bts readmg of th: c8:8es, but
also rests 00 an implicit conception of the readability of the Const1tut1on. ~or
White the Constitution is fully readable. Once again, he does not find anythmg
in the Constitution itself that mentions the right to homosexuali_ty :nierefore he
interprets the Eleventh Circuit as creating such a right out of thm arr, rather tha_n
a reading of the Constitution and of precedent that understands :""h~t ts

be:~
Due Process Clause of the Fourteenth Amendment. ,,is Toe Eleventh Circuit relied 00
h " tabl hed" by the Const1tutton
28
on the line of precedent from Griswoltfl' through Roe 27 and Carey to read the fundamental and necessary to pnvacy as a ng t es is
right of privacy to include "homosexual activity." Justice White rejects this For Justice White, to simply create a "new" fundamental right woul? m:st
reading. He does so, as we will see, by narrowly construing the right supposed]y dangerous kind of activism, particularly in the ~ase of homosexuahty n w Y
implicated in this case and then by reading the language of the holding of each is this the case for Justice White? As he explams:
case in a "literalist" manner implicitly relying on ''the plain meaning of the t roots Sodomy was a criminal
Proscriptions against that conduct have ancien nal l3 t
words." Do we find any language in these cases about homosexuality? Justice offense at common law and was forbidden by the laws of the origi sta es
White cannot find any such language. Since he cannot find any such language, when they ,atified the Bill of Rights. In 1868, when the FourteenthAmendmeat
h d al sodomy 1aws
Justice White concludes that ''the plain meaning of the words" did not mandate was ratified ali but 5 of the 37 States in the Umon a cnmm
' od d today 24 States and
this extension of the right of privacy to "homosexual activity." To quote Justice In fact until 1961 ali 50 States outlawed s omy, an .' ~--'
' ' 1 alt:1esfor sv,,,omy
the District of Columbia continue to prov1de cnmma ~n . k und
White: rf ed. . t and between consenting adults. Agamst th1sbac ,
pe orm m pnva e . "dee 1 ted in this Nauon's
Accepting the decisions in these cases and the above description of them, we to claim that a right to engage ~ ~u~hconduct is p y roo . .. is at best,
think it evident that none of the rights announced in those cases bears any history and tradition" or "imphctt m the concept of ordered hberty
resemblance to the claimed constitutional right of homosexuals to engage in facetious.)2
acts of sodomy that is asserted in this case. No connection between family, lw ys to be guarded against,
For White not only is the danger of actmsm a a . A . th
marriage, or procreation on the one hand and homosexual activity on the other ' such as thts one. grun, e
has been demonstrated, either by the Court of Appeals or by respoodent. l9 but it must be specifically forsaken .m. c~~e . f th readability of
justification for bis position tums on h1s 1mphc1t concepu.on o t e ulnerable and
Wh" "[t]he Court 1s mos v
We do not need to develop a sophisticated philosophical critique to point to the Constitution. To quote Justtce tte, . . d d onstitutional law
the flaw in Justice White 's "literalist" interpretation of the cases. We can simply comes nearest to illegitimacy when it deals w1th JU ge_-ma e e C tu..: ..n
. h geordesignofthe onstt uon.
rely on one of the oldest and most established "principies" of constitutional having little orno cognizable roots 10t e Iangu~ . h as a fundamental
interpretation: the principie that cases should be narrowly decided. If one accepts I have critiqued the charge of judicial act1v1~melsew ere,.n ,n legal interpre
. . bl of nonnative construc 10
that this principie was operative in the cases associated with the establishment of nusunderstandingofthemev1ta ero e . "F,.,h has his
t fon is also eva 1uat1on.
tatton once we understand that mterpre a 1
34
the "right of privacy, " 30 then the reason none of these cases "spoke" to homosexu- _,, h that lor Fish the
. . .. Th tlwanttom-e erets
ality was that the question of homosexuality wasn't before them. Judges under own vers10n of thts cnttq~e. e pom. the truth of the systern erases the
this principie, or in Luhmann's tenns, under this system, are to decide cases, not power of law to enforce 1ts own premises as . th r otest impotent.
advance nonns or speculate about ali possible extensions of the right. When and significance of its philosophical interlocut:5,_ rendenn~ e: :nst gay meo are
:i
.'. how the right is to be extended is dependent on the concrete facts of each case . ~e concre~ result in~~ c~e is. that ~e ~nmmal sai;:::; be legally accept-
i I In spite of what he says he is doing, Justice White, like the commentators already gven constttutional leg1t1mat:1onm that tt is now proc
l and sexual engagernent.
mentioned, is interpreting from a silence, anda silence that inheres in the principie able for states to outlaw homosexua l ove . . ? Toe answer I
rvmg v101ence o 1aw. ,
that constitutional cases in particular should be consttued narrowly. Need I add Is this a classic example o f th e oons~ ti the analysis of Justice
here that if one is a homosexual, tbe right to engage in homosexual activity migbt believe, is unquestionably yes. But more importan Y' given

: '
!!
i
' j ./ll
,.,.>
p

Law Dressed Upas Justice I 163

162 / The Philosophy ofthe Limit

White, it demonstrates a profound point about the relationship, emphasized by
Derrida, between conserving violence and the violence of foundation. To quote
Derrida, and I quote in full, because I believe this quotation is cruciaJ to my own
response to LaCapra 's concem that Derrida yields to the temptation of violence:
For beyond Benjamin's explicit purpose, I sha11 propose the interpretation
according to which the very violence of the foundation or position of law
(Rechtsetzende Gewalt) must envelop the violence of conservation (Rechtser-
haltende Gewalt) and cannot break with it. lt belongs to the structure of
fundamental violence that it calls for the repetition of itself and founds what
ought to be conserved, conservable, promised to heritage and tradition, to be
shared. A foundation is a promise. Every position (Setzung) permits and prom-
ises (permet et pro-met), it positions en mettant et en promettanJ. And eveo if
a promise is not kept in fact, iterability inscribes the promise as the guard in
the most inuptive instant of foundatioo. Thus it inscribes the possibility of
repctition at the heartof the originary .... Position is airead.y iterability, a call
for self-conserving repetitioo. Cooservation in its turn refounds, so that it can
conserve what it claims to found. Thus there can be no rigorous opposition
between positioning andconservation, only what I will call (and Benjamin does
not name it) a diffran.tielle contamination between the two, with ali tbe
paradoxes that this may lead to. 36
1be call for self-conserving repetition is the basis for Justice Wbite's opinion,
and more specifically, for bis rejection of "reading into" the constitutioo, in spite
ofan interpretationofprecedent, a fundamental liberty to engage in "homosexual
sodomy." As White further explains:
Striving to assure itself and the public that announcing rights not readily
identifiable in tbe Constitution's text involves much more than tbe imposition
of tbeJustices' own choice of values oo the States and tbe Federal Govemment,
tbeCourt has sought to identify tbe nature of the rights qualifying for hcightened
judicial protection. 31
To summarize again, the result for White is that "fundamental liberties" sbould
be limited to those that are ''deeply rooted in tbe Nation 's history and tradition ...:ia
Por Justice White, as we have also seen, the evidence that the right to engage "in
whicb it was laid down have vanished long sioce, an<1tite rule simply persists
from blind imitation of the past."
Derrida gives us insight into bow the traditional positivist conception of l~w,
in spite of Justice Holmes' remark and Justice Blackmun's concem, ~?51sts
prccisely in this self-conserving repetition. For Fish, as we have seen, tt _is the
practical power of the legal system to preserve itself through the co~flat1on of
rcpetition with justification that makes it a legal system. Of course, Ft~h ~g-
ni7.esthat repetition as iterability also allows for evolution._ B~t evolubon is the
on1ypossibility when justification is identified as the functm~mg of the system
itself. Law, for Fish-in spite of bis remarks to the contrary-1s not ~truct-
ible and, therefore, is also not radically transformable .. As a system 1t becomes--
its own ''positive" social reality in which the status of tts own myths cannot be
cballenged.
lt is, bowever, precisely the status as myth of its originary foundation the
"plainmeaning of the words"-or in more technical language, the readab1hty of
the text-that Derrida challenges in the name of justice. We arenow_retu~
LaCapra's concem about the potentially dangerous equalizing force~n s
own argument. LaCapra reinterprets what he reads as one of ~da s n . er
statements. Let me first quote Derrida' s statement: "Since ~- ongm of authori.ty
the foundation or ground, the position of law can 't bY_defimtton rest.~? anythmg
but themselves tbey are themselves a violence w1thout ground. LaCapra
'
reformulates Derrida s statement in the hope of mak" b"""
mg it ess su .,..,...~ abuse
to
To quote LaCapra: "Since the origin of authority, the f~undation or ground, the
Jl(>Sitionof tbe law can't by definition rest on ~ythmg bu~ them~!ves, the
question of tbeir ultimate foundation or groundis hterally pcun~e_ss
My disagreement with LaCapra's restatement is as f?ll"".s: 1t 1s not tbat_th~
questionof the ultimate ground or foundation of law is pomdess for [)enida;
. . . d or correct!Ystated Iack of such,
mstead, 1t is the question of the ultunate groun , ' . .6
lhatmust be asked if we are to heed the call of Justice. Tha.t no JU~ ca~
. f talanguage m relatton to 1ts
diseoursecan or should insure the role o a me
dominant interpretation, means that the conserving promise of law ca:
be fully actualized in a hermeneutical circle that successfully wms ac m on
1': ~ver

homosexual sodomy" is not a fundamental liberty is lhe "fact" tbat at the time
itself and therefore grounds itself. . ue bere
the Fourteenth Amendment was passed, ali but five of the thirty-seven states in
Of course, there are, at Ieast at first gtam:e, two kinds of vtol:::; then
the union had criminal sodomy laws and that most states continue to have such 8
the violence of the foundation or the estabhsbment of legal sy De "da
laws. In bis dissent, Blackmun vehemently rejects the appeal to tbe fact of tbe . . . . . an actuallegal system. 8 ut m
la:w-conservmg or unspathet1c vio 1ence o . kinds
existence of antisodomy criminalstatutes as a basis for the continuing prohibition .t.---~ text JUSI how these two
'"""-U\Jlllitrates
in bis engagement w1th BenJarmn s. . of this contamina-
of the denial of a rigbt, characterized by Blackmun not as the right to engage in
~f violence are contaminated. To concretize tbe sigruficance s of the intent of
homosexual sodomy but as "tbe right to be let alone. ,,)9
tioo, we are again retumed to Bowers. 1be erasureof tbe
Quoting Justice Holmes, Blackmun remindsus that:
It is revolting to have oo bener .reasoofor a rule of law than tbat so il was laid
tbe founding fathers and the plain meaning of tbe words eg .
basis for the justijication of the jurispathic or law-con~mg V::
:nce
al yths is the

h.
of the
other
down in lhe time of Henry IV. 11is still more revolting if tbe grounds upoo decision.The exposure of the mystical foundation of authonty' w e ts an
 164 I The Philosophy ofthe Limit
way of writing that the perfonnativity of institutive language cannot be fully
incorporated by the system once it is established, and thus, become fully self-
justifying, does show that the establishment of law is violence in the sense of
an imposition without a present justification. But this exposure should not be
understood as succumbing to the Jure of violence. Instead, the tautology upon
which Justice White's opinion rests-that the law is and therefore it is justified
to be, because it is-is exposed as tautology rather than justification. Toe point,
then, of questioning the origin of authority is precisely to undennine the conflation
of justification with an appea1 to the origin, a conflation made possible because
of the erasure of the mystical foundation of authority. LaCapra 's reformulation
may be "riskier" tltan Derrida's own because it can potentially tum us away from
the operational force of the legal myths that seemingly create a self-justifying
system. Toe result, as we have seen, is the violence of Justice White's opinion
in which description is identified as prescription, criminal persecution of homo-
sexuals defended as the necessity of the rule of law.
But does the deconstructionist intervention lead us to the conclusion that
LaCapra fears it might? That conclusion being that ali legal systems, because
they are based on a mystical foundation of authority, have "something rotten',43
at the core and are therefore "equal. '"" In one sense, LaCapra is right to worry
about the equalizing force of Derrida 's essay. Toe equality between legal systems
is indeed that ali such systems are deconstructible. But, as we have seen througb-
out this book, it is precisely this equality that allows for legal transformation,
including legal transfonnation in the name of the traditional emancipatory ideals.
Derrida reminds us tbat tbere is "nothing ... less outdated'"" than those ideals.
As we bave seen in Bowers, acbieving them remains an aspiration, but an
aspiration that is not just impotent idealism against the ever functioning, non-
deconstructible machine.
( As we have seen, Derrida is in disagreement with Fish about deconstructibility
\ of law. Por Fish, since law, or any other social context, defines the parameters
of discourse, the transfonnative challenges to the system are rendered impotent
because they can only challenge the system from withln tbe constraints that will
effectively undermine the challenge. ''1bere is" no other "place" for tbem to be
but within the system that denies them validity or redefines them so as to manage
the full range of the complaint. But for Derrida "there is" no system that can
catch up with itself and therefore establish itself as tbe only reality. To think tbat
any social system, legal or otherwise can "fill" social reality is just anotheT myth,
the myth of ful) presence. In Fisb, it is practically insignificant that law is a social
construct, because, social construct or not, we can not deconstruct tbe macbine.
Derridean deconstruction reacbes the opposite conclusion. As Derrida explains,
returning us to the excess of the perfonnative language chal establishes a legal
system:
Even if the success of tbe peormatives that fouod law or right (for cumple.
and this is more tbanan example, of a state as guarantorof a rigbt) presupposes
Law Dressed Upas Justice I 165
earlier conditions and conventions (for example in the nationalor international
arena), the same "mystical" limit will reappear at the supposedorigin of their
dominant interpretation.
The structure I am describing here is a structure in which law (droit) is
essentially deconstructible, whether because it is founded, constructedon inter-
pretable and transformable textual strata, (ami that is the historyof law (droit),
its possible and necessary transfonnation, sometimes its arnelioration), or
because its ultimate foundation is by definitionunfounded. The fact that Jaw is
deconstructible is not bad news. We may even see in this a stroke of luck for
politics, for ali historical progress. 4li
The deconstructibility of law, then, as Derrida understands it, is a theoretical
conception that does have practical consequences; the practical consequences
are precisely tbat law cannot inevitably shut out its challengers and prevent
transformation, at least not on the basis that the law itself demands that it do so.
It should not come as a surprise, then, that the Eleventh Circuit, the court that
beld that the Georgia statute violated the respondent's fundamental rights, rested
on the Ninth Amendment as well as on the Fourteenth Amendment of the Constitu-
tion. Tbe Ninth Amendment can and, to my mind, should be interpreted to
attempt fidelity to the deconstructibility of even the "best" constitution, so as to
allow for historical cbange in the name of Justice. The Ninth Amendment can
also be understood from within the problematic of what constitutes the intent of
"the founding fathers." Toe intent of the constitution can only be to be just, if it
is to meet its aspiration to democratic justification. This intent need not appeal
to "extemal" legal nonns but to "intemal" legal nonns embodied in the interpreta-
tion of the Bill of Rights itself. Toe Bill of Rights clearly attempts to spell out
the conditions of justice as they were understood at the time of the passage of the
Constitution. But the Ninth Amendment also recognizes the limit of any descrip-
tion of the conditions of justice, including those embodied in the Bill of Rights.
An obvious example is the call of bomosexuals for Justice, for their "fundamental
liberty." The Ninth Amendment sbould be, andindeed was, used by the Eleventh47
Circuit to guard against the tautology upon whicb Justice Wbite's opinion rests.
Silence, in other words, is to be constructed as the "not yet thought," not tbe
"self-evident that need not be spoken." .
But does this interpretation of the Ninth Amendment mean that there ts no
legitimacy to the conservation of law? Can a legal system completely escape the
promise of conservation tbat inheres in its myth of origin? Certainly Derrida does
not think so. Indeed, for Derrida, a legal system could not aspire to justice if it
did not make this promise of conservation of principie and the rule of Law. ~ut
it would also not aspire to justice uoless it understood this ~mise. as a pro~
to Justice. Again we are retumed to the recognition, at least m my interpretaban
of tbe Ninth Amendment, of this paradox.
lt is precisely this paradox, which, for Derrida, is inescapable, that makes
48
Justice an aporia, rather than a projected ideal. To tty exactly to de~ne what
Justice is would once again collapse prescription into description and fati to beed
 166 I The Philosophy of the Limit
the humility before Justice inherent in my interpretation of the Ninth Amendment.
Such an attempt shuts offthe call of Justice, rather than heeding it, and leads to
the travesty of justice, so elcquently described by Justice Holmes. 49 But, of
course, a lega1 system if it is to be just must also promise universality, the fair
application of the rules. As a result, as we saw in the last chapter, we have what
for Derrida is the first aporia of Justice, epokhe, and rule. This aporia stems from
the responsibility of the judge not only to state the law but to judge it.
In short, for a decisionto bejust and responsible,it must, in its proper moment
if there is one, be both regulatedand withoutregulation:it must conservethe
law and also destroyit or suspendit enoughto have to reinvent it in each case,
rejustify it, at least reinvent it in the reaffirmationand the new and free
confirmationof its principie.50
Justice White failed to meet bis responsibility precisely because he replaced
description with judgment, and indeed, a description of state laws a hundred
years past, and in very different social and political circumstances. si
But if Justice is (note the constative language) only as apora, if no descriptive
set of current conditions for justice can be identified as Justice, does that mean
that all legal systems are equal in their embodiment of the emancipatory ideals?
Is that what the "equality" that all legal systems are deconstructible boils down
to? And worse yet, if that is the conclusion, does that not mean that we have an
excuse to skirt our responsibility as political and ethical participants in our legal
culture? As 1 have argued througbout this book, Derrida explicitly disagrees wicb
that conclusion: "That justice exceeds law and calculation, that the unpresentable
exceeds the determinable cannot and sbould not serve as an alibi for staying out
of juridico-political battles, within an institution ora state or between one institu-
tion or state or others. "' 2
But let me state this positioning vis-d-vis the deconstructibility of law even
more strongly. The deconstructibility of law is. as I bave argued for the last two
chapters, exactly what allows for the possibility of transformation, not just the
evolution of the lega] system. 'Ibis very openness to transformation, wbich. in
my interpretation of the Ninth Ameodment, sbould be understood as institutional
humility before the call to Justice, as the beyood to any system, can itself be
translated as a standard by which to judge "competing" legal systems. It can also
be trans/ated into a standard by which we can judge the justices themselves as
to how they have exercised their responsibility. Compare, foc example, Justice
White' s majority opinion with Justice Blackmun s dissent. s) Thus, we can respond
to LaCapra s concern that all legal systems not be conceived as equally "rotten."
Ali judges are not equal in tbe exercise of their rcsponsbility to Justice. even if
justice can not be detennined once and for ali as a set of established nonns.
Toe idea of right and the concrete, practical importance of rights, it must be
noted, bowever, is not denicd. Instead, tbe basis of rigbts is reiutetp:eted so as
to be consistent witb tbc etbical insistence on. tbe divide betwecn law and justice.
Law Dressed Upas Jwtice I 167
This ethica1 insistence protects the possibility of radica] transformation within an
existing legal system, including the new definition ofright. But the refusa] ofthe
idea that only current concepts of right can be identified with justice is precisely
what leads to the practica] value of rights. Emmanuel Levinas once indicated that
we need rights because we cannot have Justice. Rights, in other words, protect
us against the hubris that any current conception of justice or right is the last
word.
Unfortunately, in another sense of the word, Justice White is "right" about our
legal tradition. Homosexuals have been systematicaJly persecuted, legaJly and
otherwise, in the United States. Interestingly enough, the reading of deconstruc-
tion l have offered allows us to defend rights as an expression of the suspicion
of the consolidation of the boundaries, legal and otherwise, of community. These
boundaries foreclose the possibility of transfonnation, including the transforma-
tion of our current conceptions of "nonna1" sexuality as these nonns have been
reflected in the Iaw and used as the basis for the denial of rights to homosexuals.
What is "rotten" in a legal system is precisely the erasure of its own mystical
foundation of authority so that the system can dress itself up as justice. Thus,
Derrida can rightly argue that deconstruction
hyperbolicallyraises the stakesof exactingjustice;it is sensitivityto a sort of
essentialdisproportionthat must inscribeexcessand inadequationin itselfand
that strivesto denouncenot only theoreticallimitsbut alsoconcreteinjustices,
withthe most palpableeffects, in the goodconsciencethat dogmacallystops
before any inheriteddeterminationof justice.s,
It is this "rottenness" in ourown legal system as it is evidenced in Justice White's
opinion that causes me to refer to the Jega1 system, as Fish describes it, as a
tnonster. Toe difference in Luhmann's tenns tums on what is observed and why.
But for LaCapra, there is also another issue, separate if coonected to the
potential equa1ization of legal systems dueto their inherent "rottenness." That
danger is a danger of an irresponsible turn to violence, because ~re can no
projected standards by which to judge in advance the acceptabihty of vi~l~nt
acts. For LaCapra, this danger inheres in the complete disassociation ?f cog:11!~
and action that he reads as inherent in Benjamin's text, and perbaps m Derrida s
engagement with Benjamn. As LaCapra reminds us in a potential disagreement
With Derrida's fonnulation of this disassociation:
As Derrida himself elsewhereemphasizes,the performativeis oever pure or
autonomous;it always comesto sornedegreebound up w.ith functionsof
language.And justificatorydiscourse-however uncertamof tts groo~ and
deprivedof the superordinateaod masterful status of meta1anguage-1s never
entirely absent from a revolutionarysituation or a COllP~force"
But Derrida ccrtainly is not arguing that justificatory language ~g to
do With revolutionary situations. His ~t is instead dlat tbc JUSbficatory
168 / The Philosophy of the Limit
language of revolutionary violence depends on what has yet to be established,
and of course, as a result, might yet come into being. lf it did not depend on
what was yet to come, it would not be revolutionary violence. To quote Derrida:
A "successful'' revolution, the "successful foundation of a State" (in somewhat
the same sense that one speaks of a "felicitous" perfonnative speech act) will
produce apres coup what it was destined in advance to produce, namely, proper
interpretative models to read in retum, to give sense, necessity and above ali
legitimacy to the violence that has produced, among others, the interpretative
model in question, that is, the discourse of its self-legitimation.... There are
cases in which il is not known for generations if the perfonnative of the violent
founding of the state is ''felicitous" or not.
That separation of cognition and action by time meaos that no acts of violence
can truly be justified at the time they tak:e place, if by truly justified one meaos
cognitive assurance of the rightness of action. l believe that this interpretation of
Derrida's engagement with Benjamin is the reading that does full justice to the
57
seriousness with which both authors take the command "thou shalt not kill. "
Thus, we can only be just to Benjamin's text and to Denida's reading if we
understand the responsibility imposed upon us by Benjamin 's infamous statement
about divine violence. "For it is never reason that decides on the justification of
means and the justness of ends, but fate-imposed violence on the fonner andGod
on the latter. ,>!!s
Since there can be no cognitive assurance in ad vanee of action
we are left with ourresponsibility forwhat we do. We cannot escape responsibility
by appealing to establisbed conventions. Revolutionary violence cannot be ratioo-
alized by an appeal to what "is," for what "is" is exactly what is to be overtumed.
In this sense, each one of us is put on the line in a revolutionary situation. Of
course, the inability to know whether or not the situation actually demands
violence also meaos there can be no justification for oot acting. This kind of
undecidability is truly frightening. But it may not be more frightening than the
justifications for violence------whetherthey be justifications for tbe death penaJty
or the war machine-put forward by the state. LaCapra worries precisely about
the day-to-dayness of extreme violence in the modernlpostmodem state. S9 But so
does Benjamin in bis discussion of the police. w Tbe need to bave some standards
to curtail violence, particularly this kind of highly rationaliz.ed violence, should
not be confused with a justification for revolutionary violence. 1e problem is
not that there are not reasons given for violence. 1t is not even that these reasons
should better be understood as rationalizations. lt is rather that revolutionary
violence cannot be rationalized, because ali forros of rationalization would neces-
sarily take the fono of an appeal to what has alreadybeco establisbed. Of course.
revolutionary movements project ideals from within tbeir present discowse. But
if they are revolutionary movements they also reject the limits of that discourse.
Can they do so? Have they done so? Judgment awaits tbese movements in_dte
future. Perbaps we can better understandBenjamin' s refusal of human ratioo.aliza-
Law Dressed Upas Justice I 169
61
tions for violence by appealing to Monique Wittig's myth, Les Gurilleres. In
Les Gurilles, we are truly confronted with a revolutionary situation, the
overthrow of patriarchy with its corresponding enforcement of heterosexuality.
In the myth, the Amazons take up anns. Is this mythic violence govemed by
fate? Is the goal the establishment of a new state? Would this new state not be
the reversal of patriarchy and therefore its reinstatement? Or does this "war"
signify divine violence-the violence that truly expiates. The text presents those
questions as myth, but also as possibility "presented" in literary form.
How could the women in the myth know in advance, particularly if one shares
the feminist premise that ali culture has been shaped by the inequality of the
gender divide as defined by patriarchy? lf one projects an ideal even supposed
by feminine nonns, are these nonns not contaminated by the patriarchical order
with which the women are at "war''? Rather than a decision about the resolution
of this dilemma, Wittig's myth symbolizes the process of questioning that must
infonn a revolutionary situation, which calls into question ali the traditional
justifications for what is. l am relying on this myth, which challenges one of the
deepest cultural structures, because l believe it allows us to experience the
impossibility of deciding in advance whether the symbolized war against patriar-
chy can be determined in advance, either as mythic or divine, oras justified or
unjustified.
Yet, l agree with LaCapra that we need "limited fonns of control. ,.tii But these
limited forms of control are just that, limited fonns. Should we ever risk the
challenge to these limited fonns? Would LaCapra say never? If so, my response
to him can only be "Ne ver say never." And why? Because it would not be just
to do so.
Derrida's text leaves us with the infinite responsibility undecidability imposes
on us. Undecidability in no way alleviates responsibility. Toe opposite is the
case. We cannot be excused from our own role in history because we could not
know so as to be reassured that we were "right" in advance.

Conclusion:
"The Ethical, Political, Juridical
Significance of the End of Man"
lf this book has a central purpose it has been first to show the ethical and
then the juridical significance of !Jte so-called "postmodern" rebellion against
"metaphysics" and, more specifically, against Hegel. This shared ethical rebellion
is, of course, the reason for grouping togetherphilosophers as different as Theodor
Adorno, Jacques Derrida, Jacques Lacan, and Emmanuel Levinas. But I had a
more specific reason for insisting on this grouping. My argument can be summa-
rized as follows: lt is the intersection of the specific deconstructive intervention
of Denida into Levinas' ethical philosophy of alterity, combined with his decon-
struction of Lacan's political pessimism of the possibility of dismantling the
gender hierarchy, that can be figured as a "new ," "different" ethical configuration.
l want to emphasize the specificity of Derrida's deconstructive intervention in
the work of Hegel, Levinas, and Lacan. 1 use the phrase deconstructive interven-
tion deliberately. It is a mistake to think of "deconstruction .. as a systematic social
theory which encompasses a positive political analysis. But, as I bave also argue.d,
the relation between systems theory and more specifically Luhmann's systems
1
theory is much more complicated than it has been understood to be. Toe two as
I have suggested do not simply foreclose one another, although, as I have also
argue.d, the deconstruction of the privileging of the present does show us that tbe
very definition of a system as a system implies a beyond to it and that the time
of the system and the time of the ethical relation to the Other are not the same.
But this philosophical position, as we have seen, does not mean and should oot
be confused with the rejection of the centrality of the ethical. 0n the contrarY,
the philosophy of the limit can aiso be interpreted as a unique k.ind of ideological
critique.
I will retum to why I can risk the expression "ideological critique," an ex pres
sion associated with the critica! social theory of the Frankfurt school and certainly
not with deconstruction. First, bowever, we need to explore in more depth tbe
question: Why "new"? Wby ''different"? Simp)y put, this intersection, now
figured asan ethicalconfiguration, makes the question of sexual difference cruci~
to how we even dare to dream of the enactrnent of the ethical relation, even tf
170
l
Significance of the End of Man f 17J
we realize that its full enactment is impossible if we are to remain faithful to the
ethical asymmetry that inheres in the respect for the Other as Other. But, as we
bave seen, Derrida also shows that this respect for difference demands the
recognition of a "strange" phenomenological symmetry. This "strange" phenome-
nological symmetry is that W!rare the same prec.sely in our difference as egos.
lt is in this insistence on phenomenologicaJ symmetry in which the Other is
recognized as ego that, for Derrida, there is an unsurpassable "Hegelian" moment
in the philosophy of alterity. But we also needto rememberthat in Glas, among
2
other texts, Derrida further shows the limit of Hegel in bis own recognition of
this"strange" symmetry, precisely because he denies its strangeness and attempts
to encompass this symmetry in a relational concept of difference. This relational
concept of difference falters precisely when it projects the Otheras conceptualized
only in relation to me. In other words, it tames the othemess of the Other by
making her mine. To summarize: for Derrida, Hegel remains a classic example
of how the so-called recognition of identity through difference not only privileges
identity over difference, but does so through the projection of the Other as on~y
the Other to me and, therefore, not truly other at ali. For Derrida, the class~c
example in Hegel-emphasized in the first instance by Simone de Beauvoir-1s
the ironic denial of Woman's othemess, her feminine specificity, in her very
projection of her as the Other to Man. But for de Beauvoir, the recognition of
phenomenological symmetry also meant the rejection of ethical asymmetry. As
aresult, she completely rejected Levinas' ethicaJ philosophy of alterity as another
excuse for the continuing oppression of women or, in the terms I have used here,
the perpetuation of the illusion that women were not beings recognizable as
pbenomenologically symmetrical to meo. 3
In her thoughtful essay relied on earlier in this book, 1 argu~ that Luce
Irigaray also criticizes Levinas' own elaboration of bis project precisely beca~
it cannotrecognize the "strange" symmetry of the ~ras ~er: To summanze
oncemore the reason for this failure is h(s own sentunental1zat1on of Woman.
Tbevery ;ymbol of the subject burdened by her responsibility is the pregnant
mother who then joyously gives birth to a baby boy. M~h can be ~d about tbe
m&sculine privilege inherent in this symbolization and Irig~! sa~s 11.But, ~ben
Irigaray later addresses the need for the recognition of feonnme difference m tbe
law as "sexuate" rights 4 she seems once again to fail to fully understand the
l)l'actical, legal significance ofthe recognition of pbenomenologica.l sy~ (1
.
have retranslated lrigaray's programof sexuate ng bts mto a nmon1m
r-~o--
of equtva1ent
.
"""
"61 1ts, which I believe is consistent wtth " of equality that does mcleed
a " v1s1on
l'CSpectthe strange symmetry of the Other as singular being.}' In other words,
lri garay ,s own engagement with Levmas . 1
eaves .
someconcemtbat she makes the
. the
<>ppositemistake of de Beauvoir in that she recogmzes ethicalasymmetryandl ca1
. . the " tran ,. phenomeno ogi
specific1ty of sexual difference at the expense o s. g~ .
'Yllunetrythat keepsthe asymmetry ofthe etbicalrelatto1w11pfromdegeneratmg
. , contnbuuonm tbis debate has been
mto a bad excuse for violation. Denida s
 172 / The Philosophy of the Limit
precisely to insist on the need to recognize the "strange" phenomenological
symmetry as crucial to the respect for the otherness of the Other as Other and
particularly of the othemess of Woman, as irreducible to the "relational" other,
to Man. In this sense, Derrida attempts to salva.ge what is val.id in Levinas'
philosophy of alterity, whle recognizing bis masculine bias. This attempt, as we
will see in a rnoment, is crucial to legal discourse.
But for now, 1 want to recall the other figure in the intersection which malees
up the ethical configuration I have traced throughout this book. That figure, as
we have seen, is Jacques Lacan. Why is Lacan relevant in the specific context
of Derrida's engagement with Levinas? This engagement, as I have argued,
emphasizes the thinking of sexual difference as crucial to the aspiration of the
I enactment of the ethical relationship, an aspiration that dreams the possibility of
the recognition of phenomenological symmetry at the same time that it respects
_ethical asymmetry. lt would be impossible to summarize the rich analysis of
Lacan's understanding of the psychosexual dynamics of the gender bierarchy.
But to build to the understanding of ideological critique I want to advocate, it is
necessary to be reminded of two of Lacan's central insights. For Lacan, "ego"
identity, as it has come to be defined within ego psychology, is reflected as
ideology in the "old-fashioned" sense that it is false to the "social" reality of how
"identity" is fonned under the gender hierarchy. Lacan never denied his Hegelian
1roots in the sense that the development of an "individual" identity was dependent
on a pregiven social reality and, more specifi.cally, the rea.lization of the relations
of mutual recognition. But in Lacan 's analysis these relations are impossible and,
'therefore, the illusion of a self-sufficient subject is not only a myth, it is based
in the masculine imaginary that, as we have seen, is protected by a woman
__o,, ,reduced to bis mirror. Toe feminine is erased in the assumption of identity,
achievable only by entering into what Lacan calls the realm of lhe symbolic, the
realm of conventional meaning. The pregiven "social reality" that gives meaning
to the very idea of an ego identity is tbe reality of the gender hierarchy. In
Lacan, sexual differeoce and gender identity are based on the cultura) significance
attributed to tbe importance of having the penis. Having the penis is identified
with being potent, able to satisfy the mother's desire. whicb is why Lacan
associates the "reality" of baving the penis with the fantasy tbat baving the penis
is having the phallus. The fantasy is that because Mommy wants Daddy, those
with the penis can bring the Mother back. This illusion is, of course, fantasy,
given the reality that the other, including Mommy, can always leave. But the
male child is able to salve his primary narcissistic wound that Mommy does not
want me alone by projecting this fantasy that he has wbat Daddy has. Ibus, be
can bring her back by identifying himself tbrougb the phallus. Tbe result is tbe
fort/da game that Freud observed. 6 Woman, oo the otber band, is now identified
as the castrated Other. lfthe penis is identified with tbe pballus, oot ooly oo tbe
level of fantasy, but also as reinforced by a cultural system of patriarcbal pregiven
conveotions, then, Woman, who lacks tbe penis, is also ..seen" as lack:ing tbe
L
Significanceof the End o/ Man f 173
affirmative qualities associated with the phallus. But from within her own femi-
nine "identification" she is also the one who cannot bring the desired Other back.
As a result, women suffer a severe sense of inadequacy-not, now, because they
do not have a penis, but beca use they cannot make up for their primary narcissistic
wound. 7
Toe meaning given to the "fact" of lack of the phallus does not inhere for
Lacan in anatomical difference per se. The meaning has to do with how one
"recovers" from the primary narcissistic wound and why the fantasy that the penis
is the phallus beco mes a compensation in our patriarchal society. Toe feminine,
defined as lac!{, is a cultura) construct that is necessary for the self-perpetuation
Ofthe ~nder hierarchy because the very illusion .of masculine self-sufficiency
dem.ands th.Tihe devalorized Other be there to serve as a rnirror. Toe Man necds
1obeiieve that h can bring Mommy back. There is no reciprocity here. lnstead,
tbere is the subjection of Woman. But the condition of the Man is not happy
story either. For the greatest fear is to lose "it." lf the imagined phallus 1s taken
away, Man is reduced to a "girl" or, more crassly put, a "cunt." Toe boy can
take the place of "daddy" only because he has "it." But the symbolic "Dadd(-
not the real father but the imagined figure who represents the symbohc of
patriarchal conventi~ns--can always take "it" away. Taking "it" no longer implies
literal castration but the Ioss of the affirmative qualities associated with potency
(If one needs here a concrete example of how language reinforces phallic
qualities as affinnative, think for example of the familiar phrase in academic
circles of the "seminal idea").
Lacan's world of the gender hierarchy is played out as the horror story of
''wimps" and "ghosts"-boys endlessly in fear of Daddy, girls defined as lack;
This horror story is beautifully allegorized in Samuel Beckett's Happy Days.
Toe one aspect of engagement that never happens in this play is that two meet
face to face and talk. Toat, they cannot do. And yet, Winnie keeps hopmg, keeps
calling to Willie, with only the occasio~ ~sponse tha!never ~mes~ back
and forth we associate with conversatmn. Toe story m Lacan 1s not s1mply a
denial of the subject. It is a story of how the subject is constituted throu~ tbe
gender hierarchy. Gender identity, on this account, blocks any ~ns1on_ to
individuality particularly if individuality is defined as tbe power of mnovauve
capability" 1 'the ability to play one's own role rather than assume as "real," the
ntasquerade we cal! gender identity.
11
My second point has been to show that Lacan's analysis always tums on the
establishment of the Law of the Father as an unshakable "social reality" because
it has become frozen into the unconscious if, indeed, it is not the unconsciou~.
Yet, of course, any analysis of the Law of the Father also tums ~n an ~ysis
of the cultural constructs which mark this Law as the law. s sto'?' is the
of repetition compulsion which makes political ~f~a.~~.!-~cul_3!-0'
~of_tbe aspiration to a society o f~nable .. an illus1QJ;I.Masculme
subjectivity is, 00 diis analysis, not something men JUStget over-and, 1 may
 174 I The Philosophy oj the Limit
add here, unfortunately, because then the "cure" would just be the gift of a few
books-when they read a little philosophy or even become established as aca-
demic philosophers. The appeal of Lacan's analysis to feminists is that it is
helpful in explaining the profound hold that the gender hierarchy has o ver Western
culture, including its philosophical theories of political transformation. Under a
Lacanian analysis the law of gender identity will be replicated in the Jaws of an
existing legal system. Therefore, there can be no rigid divide between the "formal"
justice of the public realm and the "infonnal" realm of sexual and family relations.
What, specifically, does it mean that "fonnal" justice cannot be separated from
informal justice? 1t means that one could not hope for the sustaining of legal
reforrns unless the gender hierarchy, as it plays a constitutive role in identity, is
c~lle~ged. As this century comes to an end and we watch the long-fought-for
c1vtl nghts of women systematically overtumed, we have reason to think about
this connection as it helps us to shed light on an underlying truth of our social,
political, and legal reality. I have, as a result, focused on the question of legal
transformation throughout the second half of this book. 12
I now want to summarize Derrida's deconstructive intervention into Lacan's
analysis as it specifically relates to the intersection I have recast into an ethical
configuration. I will then tum to how that ethical configuration can serve as the
basis for ideological critique. Derrida's intervention has- been .tn..show how
Lacan 's insight that any concept of sexuality cannot be separated ftom wl!at shifts
in language tums against Lacan's.own political pessimism. As Derrida reminds
us, the subject and first of ali the speaking subject, depends opon the system of
differences and the movement of diffrance. It is within the gender context that
Derrida has very specificaJly shown the ethical significance of this understanding
of the subject. Simply put, the sbject, including. the masculine su.bject, cannot
be frozen into its gender role precisely because of the perfonnative aspect of
language inherent in an understanding of language as a system of differences. lt
is always possible to play out our gender roles differently. Derrida's endless
playing with the insight that masculine privilege is based on a fantasy, the fantasy
that having the penis is having the phallus, is an explicitly ethical and poHtical
"act."
This exposure itself can serve as a fono of ideology critique. 13 Now we see
why I can justify this deconstructive intervention as "ideology critique" in a very
traditional manner. First, as we have seen, Derrida's deconstructive intervention
into Levinas' work uncovers the moment of phenomenological symmetry in the
ethical relationship of alterity, so that ethical asymmetry is protected from the
degeneration into violation of the Other. But, he also shows with Lacan how the
recognition of women as others, not the Man's Other, is blocked by the psychical
fantasy of Woman. Thus, the psychical fantasy of Woman stands in the way
of the aspiration to the ethicaJ relationship which demands tbe recognition of
phenomenological symmetry. In the very traditional sense of ideology critique,
which demandsthat there be sorne notion of falsity and thus of truth, Derrida
Significance of the End of Man I 175
1
sho~~ that t~e _gender hierarchy, and with it, imposed heterosexuality, is "ideol-
ogy m that 1t 1s not and cannot be made "true" to lived, individual sexuality. In
~rn he ~hows that the gender hierarchy vio lates the moment of universality that
mheres tn the recognition of the phenomenological symmetry of the Other.
For Lacan, on the other hand, it is ethically and politically irrelevant that
gender hierarchy is not "true," at least in the sense that there is no outside referent
in which the process of interpretation of sexuality and sexual difference comes
to an end such as biology or a theory of constituted essences. The Law of the
Father has been established as law and replicates itself through the linguistic code
of the symbolic. As a result, meaningful transforrnation is foreclosed at least
within patriarchal culture. Women can appropriate the phallus-and who better
to know how this is done than a woman law profes sor-but the phallus remains
the very symbol of potency and of power. Put simply, to enter into the masculine
world, women must take up the masculine position. How does one challenge the
~ion of the phallus as the "transcendental signifier"? Here again, Derrida's
mtervention is politically important. Derrida shows us that the phalius takes on
the significance it does only as the metaphor for what the mother desires. Beca use
the erection of the pha1lus as the transcendental signifier is based on a reading,
the symbolic significance of the phallus can be reinterpreted. Thus, the discovery
of anatomical sexual difference can also be reinterpreted (if the phallus is not
read through the fantasy projection of what it meaos to have a penis). As a
result, the divide into two genders, which is also the basis of the divide into
heterosexuality and homosexuality, may also yield to other interpretations. Lacan
himself undennines the very concept of homosexuality as perversion, be.cause
under his own analysis there can be no "correct" progression to a mature, normal
sexuality through the proper development of the libidinal drives, as he also strips
away the pretense that masculine "superiority" is in any way mandated by nature.
But even if gender identity is just a role into which we are cast by the rigid
structures of culture, we still play it, like automatons, as we tak:e up our positions; ,
in the gender hierarchy. 1
Derrida's "ideological critique" has two prongs. We do not just end with the
exposure of gender identity and heterosexuality as "ideology" because the divide
into males and females can never be justified as true in the sense of an accurate
description. In Derrida, gender hierarchy is also ideology in the sense that it
denies the phenomenological symmetry of each one of us. Gender hierarchy is,
thus not only false, it is unethical.
His experimental "writing style," particularly as it develops as a dialogic
engagement with a feminine interlocutor, should be read as an expression of the
dream that we can express and live our lives and sexuality differently and, yes,
~aybe even talk to one another without being hopelessly blocked by the masculine
llDaginary. In Derrida's writing of the "dialectic" as a dramatic exercise, the
"pan" of the feminine is allowed to play out its disruptive force against the
psychical fantasy of Woman. 14 Toe feminine is played out through the recognition
 176 I The Phi!-Osophyof the Limit
of the "strange" phenomenological symmetry which denies that the individual
woman can be adequately defined by her definition within the masculine-identified
symbolic. Of course, this ideological critique, combined with the experimental
writing of the "dialectic" cannot replace direct political action. But then no
philosophical or social theory can replace such action. What it can do is show us
that any conception of "dialogue" will itself be an illusion if it does not address
itself to the way in which dialogue is blocked by the perpetuation of the gender
hierarchy and with it the psychical fantasy of Woman.
Who can be the subject of dialogue? Who can truly develop a "fallibilistic
consciousness"u so as to open himself (or herself) to the Other? These questions
are of concem to social theory as well as to any conception of panicipatory
democracy that does not ignore the reality of social life and the possibility of
transfonnation that does not end in restoration. The question of what kind of
human being one would have to become to live in a "new" society was and
remains central to the tradition of romantic idealism. Friedrich Schiller eloquently
addressed it in On the Aesthetic Education ofMan, 16 because of bis anguish over
the disintegration of the French Revolution into the worst kind of violence.
lndeed, it would not be an exaggeratioo to write that the question haunts debates
over how extensive change can or, indeed, even should actually be. 17 In the social
theory of Jrgen Habennas, for example, the question of motivation to participare
in relations of dialogic reciprocity is at least partially answered through Kohl-
berg's theory of individual moral development. In Habermas' revision of Kohl-
berg's theory the possibility of a "seventh" stage, the stage of "dialogic" or,
more precisely, a "post-conventional" personality has beeo historically realized.
Habermas' social theory ofthe moral subject is thus evolutionary. 1be "postcon-
ventional" personality is precisely the person of a "fallibilistic consdousness"
who can achieve reftexive role distancing from bis own existential and moral
convictions. The person is post-conventional because bis moral judgments rest
on reflection, not the mere acceptance of the cooveotions of the society in which
he lives. One leams, in Kohlberg's seose, to apply universal standards of right,
even when they go against one's "gut" instinct. In Habermas, this capacity is
associated with the recognition of the Other asan equal subject in dialogue. It also
implies, at least on the interpretation of reflexive role distancing tbat Habermas has
given us, the ability to identify with the Other precisely as a subject of dialogue.
In everyday language, reflexive role distancing demands that one can imagine
being in the other's shoes. One can, in other words, play out, at least in the
imagination, the roles into which the other has been placed. Of course, the first
ethical criticism of Habermas' conception of the "postconventional" personality
is that it ne ver directly addresses jusi how tbe recognition of tbe Otber's pbenome-
nological symmetry as a subject of dialogues is blocked by the gender hienuchy.
Following Kohlberg, he simply assumes the postconventional personality has
developed beyond that point. Would that it were "true," and that we live.d in a
Significance of the Erui of Man I 177
society in which that "truth" had been realized. But there is another criticism
related to whether or not one can truly imagine being in the other's shoes.
Luce Irigaray, on the other hand, has emphasized that the two sexes cannot be
in the same position, even in the sense of being fonnally conceptualized as
subjects of dialogue. Toe irreducibility of one sex to the other also means that
one sex cannot fully experience or imagine what the Other "is" or the extent of
her suffering. This irreducibility of the "two" sexes leads Irigaray to evoke the
18
hope for a new alliance between the two "sexes" to rest on wondennent, which
recognizes the irreducible difference between them, and not on the imagination
in which one imagines oneself as the Other. Very simply, no man can know or
fully imagine what it is like to have an abortion, although he can clearly wonder
about it and respect the suffering entailed if that right to abortion is denied to
women. Continually in both Derrida and Levinas, humility befare the othemess
of the Other is emphasized as crucial to the aspiration to enact the ethical
relationship.
But this respect for the othemess of the Other also has implications for the way
in which one thinks about "the subject of dialogue," a conception different from
Habennas' Kohlbergian analysis. What is often missed in discussions of Jacques
Lacan is the historical dimension of the way in which "the era of the ego" comes
to be established precisely in connection with the psychical fantasy of Wo~an
upon which it is based. 19 Toe historical reading of Lacan not only goes ag:nnst
the "poststructuralist" interpretation, but also against those analysts _assoc1~ted
with Lacanianism who argue that feminism, or any other fono of rebelhon agamst
20
the gender hierarchy necessarily puts individual sanity at risk. f_p_r_Lacan, the
_el~ thinking __ _i~
of ego is precisely w_hatblocks "falli~ilistic" or "~ialogic"
-~-!!.
..~.iousness. Lacan specifically notes that it is nota coinc1de~ceth~t ~h1losophy
is no iClnge-written in the fonn of the dialectic. Toe Othe~ IS ass1mdated, n~t
listened to. But, in the case of women and the gender h1erarchy, Wo~an is
assimi1ated as the necessary basis for the illusion of the ego's self-suffic1ency.
For Lacan, "the era" of ego identity is inherently connec.ted to the role of the
masculine imaginary in fantasizing the ideal of self-suffic1ency.
To even begin to dream of the "subject of dialogue" we then have to challenge
the law which establishes the gender hierarchy. Toe Law of the Father not only
has to be undennined, it has to be delegitimated. 1 have already sugg~~ted _that
Derrida's deconstructive intervention engages in that process of deleg1ttmat1on,
particularly once it is understood as a fonn of ideological critique. It ~oes so
first-and this step we need to recall is taken with Lacan-by _d~m~ns~tmg that
masculine superiority is a "sham" in the Lacanian sense that 1t1s 1_magmaryand
connected to the macho illusion of self-sufficiency. Secondly, 1t does so by
tuming Lacan's own insight into the relationship betwee~ significance and sexual
identity against Lacan himself. As we have seen, Derrida s~ows that Law
cannot protect itself against reinterpretations that could potentially destab1hze the
 ....................................................
178 J The Philosophy of the Limit
gender hierarchy itself. This delegitimation and this destabilization have political
consequences in that they indicate that the conditions for a "subject of dialogue"
and of "participatory" democracy demand the undermining of the gender hierar-
chy. Without this challenge to gender hierarchy, in other words, the "era of the
ego" cannot be transformed and, thus, in any meaningful way surpassed. Both
Lacan and Derrida specifically connect what has now come to be called the
philosophy of consciousness with gender hierarchy and with the subjection of
women. To summarize, within the ethical configuration l have offered, the
psychical fantasy of Woman blocks both the recognition of the strange phenome-
nological symrnetry of the Woman asan Other, a singular being, like the man's
self and the ethical alterity of the Other whose othemess can never be reduced to
any conception of Her orto any man's relationship to Her.
We can now retum to the differences between Theodor Adomo's and Max
Horkheimer's Dialectic of Enlightenmenl 1 and the analysis I have offered here.
I do not want to deny the affinity of the ethical configuration I have offered with
critical theory, particularly as developed by Adorno. But an affinity implies not
only similarity, but also difference. First, however, we will focus on the affinity
between Adorno and Derrida. As we saw in the first chapter, Adorno shares with
Derrida a critique of Hegelian totalization in the name of the remain(s), the
otherness of "things" that can never be adequately captured by any imposed
definitions.
Such an exposure refuses the idea that what "reality" is can ever be reduced
to our conception of it. In that sense, Adorno and, even more militantly, Derrida
deny the move we now associate with the recent versions of'"pragmatism.'' 22 Toe
"conversation of mankind," for Derrida, does not do away with the Other to us
as "material" reality. In this sense, Derrida is closer to Charles Peirce in bis
understanding that there "is" a reality labeled by Peirce as secondness. In bis
beautiful essay on the death ofhis friend Paul de Man, he spoke ofthe secondness
of death itself. 23 "It" is not interpretation ali the way down for Derrida. Paul de
Man is dead, and that death and one's powerlessness befare it has ali the force
I But we also saw in Derrida a suspicion of the Levinasian prescription that the
of hitting against a barrier that Peirce called secondness. Derrida 's philosophy of
24
the limit exposes the limit ofthe move to objective spirit," particularly in the
-sublime. Here again, there are echoes of Adorno in Derrida in that both thmkers
fono of "the conversation of mankind," as the answer to ali our questions.
Adorno's display of the nonidentity is also against the imposed identity of the
Hegelian system in which difference is ultimately recaptured by the Concept.
This exposure was shown to be ethical in its impulse. In the place of the Conce~t
was put the constellation, a metaphor for how one couJd uncover the object as It
speak.s to us, notas we define it. Both Denida and Adorno remain "materialists"
in the specific sense just described.
In The Dialectic of Enlightenment, Adorno and Horkheimer also show how
the very historica1 consolidation of the subject of reason turns against itself. 1be
critique is not only that reason in modero capitalism is reduced to instrumental
rationality in which objects and, indeed, human beings are valued and understood
..
Signijicance o/ the End o/ Man I 179
through their usefulness in the system of exchange. lt is also, as we saw, that the
sbiect of reason has to violate himself by controlling his own emprica! self.
Thus Adorno, in bis Negative Dialectics, is not critica! only of Hegel, but also
of the Kantian division between the noumenaJ and the phenomenal self. The
sUbJectthat pulls itself together so as to radically separate itself from ts empirical
being as a creature of the flesh does so only at the cost of violence to himself.
The very symbol of the violence to the self imposed by the attempt to become a
subject of reason in control of himself is Odysseus, who ties himself to the mast
to "protect" himself from the seduction of the sirens. The sirens, in turn, promise
the happiness so tempting to creatures of the flesh. But the rumors abound about
the horrible reality that results if the subject gives into the temptation of seduction.
The negative connotation associated with the popular designation of the "siren"
as the temptress continues to express this fear of the seductress as a threat to the
subject's control. TP.e very idea, then, of the subject of reason, at least if defined
in the traditional Kantian manner, splits the subject from part of himself. This
spiitf:Trig,and the endless battle for control over the Other in oneself, is the basis
for resentment toward those who seem to be having "too much fun." Adorno and
Horkheimer, in other words, connect the Nietzschean insight that resentment is
tite motor of the modern, particularly the Christian, subject in his relations with
thOSC! views- as bis Other , with
-- who- - he
- . .
the Kantian conception of the autonomous
s~bj!ct.
The emphasis in Adorno and Horkheimer is on the violation to the individual
of the denial of one's self as a creature of the flesh. In Levinas, on the other
h_and,we saw that the Kantian aspiration to autonomy from the heteros is itself
condemned as a violation of the call to responsibility. In Levinas, the violation
inherent in the Kantian conception of the self is to the Other. As we saw, both
Derrida and Irigaray were concerned, if in different ways, with his perpetuation
of the myth of the Mother. Within the psychical fantasy of Woman the Mother
becomes the illusionary Other to the seductress, the evil siren.
dissatisfaction of the subject enslaved by the infinite call to responsibili~ was
are concemed with the violation to the creature of the flesh inherent in a strong
Kantian conception of autonomy. Returning to the symbol of Odysseus, the very
image is of a subject tied up in knots in the effort at control. To confuse
being tied up in knots with freedom is precisely the confusion that ~domo and
Horkheimer expose. But in spite of this similarity, in Adorno there 1s a clearer
obsession with the repressed promise of happiness that can never be co~ple~ely
obliterated by the era of the subject or, in Lacan 's p~lo~, ~f the h1stoncal
era of the ego t!i.m there is in Derrida. Derrida's concern.1s_,_mthts sense, closer
~tbe:Levinasian obsession with the Other and his respons1bibty_to_H~r. A!tho~gh
it_!:_not ab~nt, and I have discussed the implicit to so~thi~g like
happi.ness in bis crlticism of Levinas, there is Iess emphasts _onselfv1olat1on. In
 180 I The Philosophy of the Limit
this sense, Derrida should be understood as positioned between Levinas and
Adorno and Horkheimer.
But, of course, Adorno and Horkheimer were also concerned with the implica-
tions in the relation to otherness implied by the resentment of the subject ever
subjected to bis own effort at control. In the Dialectic of Enlightenment, they
specifically draw attention to the connection between resentment and anti-Semi-
tism. Derrida, in like manner, has been vigilant in the exposure of the ethnocen-
trism of the Western philosophical tradition.
But, we now need to turn to the evident differences between Adorno and
Horkheimer and Derrida. One l have just suggested: that Derrida remains closer
to Levinas with bis concern with the call of responsibility of the Other. This
concern is not just with Bemg, but as we saw in Derrida' s engagement with
Levinas' critique of Heidegger, with the awe implied in the recognition of the
"being" of the Other.
But there are two further differences on which I now focus because they have
been emphasized in this book. The first is that, like Lacan, Derrida does not
emphasize the self-referentiality of Jogocentrism but, instead, the self-referen-
tiality of phallogocentrism. As already discussed in this Conclusion, this explicit
emphasis on the connection between the era of the ego and the gender hierarchy
is shared by both Derrida and Lacan. Thus, Derrida's specific intervention is not
simply to engage in the exposure of the limit of logocentrism, but of the gender
hierarchy as constituted in the era of the ego. 1 do not want to deny that,
particularly in bis aphorisms, Adorno had glimmers of insight into the relationship
between the era of the ego and the devalorization and subordination of the
feminine. Strong feminist readings of Adorno bave focused on these moments of
'i.nsight. But these moments of insight were never systematically developed into
the position that the question of sexual difference was central to philosophical
discourse and to the aspiration to enact the ethical relationship.
I have suggested this position on the significance of gender hierarchy in
philosophy is neither ahistorical nor lacking in ethical and political importance,
if one thinks that ideological critique, as l have defined it in this conclusion, has
ethical and political significance. Thus, it is not the case, as sorne political critics
of Derrida have suggested, that there is no "social" basis to deconstruction if one
meaos by social basis an appeal to how important relationships are constituted
within a particular culture or historical period. Forme at least, the political llll:d
ethical meaning of living under a gender hierarchy in which the feminine ts
pushed under is not "ineffable. ,,is
But in spite of the interpretation I have just given of how both Lacan and
Derrida can be read historically and socially, it is undoubtedly the case that
Derrida remains committed to traditional philosophical discourse to a degree
that Adorno would have rejected. Yes, Derrida endlessly exposes the ll:!!.!!. ..f
philosophy, but he does so philosophicaIIJ, through a quasi.trnSCCodelltal in
quiry, even if it is one that undermines the ttaditiooa1 assumptions of phenomenol-
.
l
Significance of the End of Man / 181
ogy. This insistence on the limit should not be confused with the de nial of the
possibility of reconstruction. lt simply demands that we think about the status of
projects of reconstruction differently. More specifically, it demands that we think
through the realization that justice can never be reduced to the conventions of
what "is." This effort is philosophical precisely insofar as it refuses to replace
philosophy with sociology. {But, as we also saw in the discussion of the relation
between Derrida and Luhmann, deconstruction does not seek to simply displace
sociology.) lt is not a coincidence, then, that one of Derrida's recent texts,
published in the winter of 1990, is entitled "Du Droit a Philosophie." 26 At the
heart of this text is an essay in which Derrida plays off the many meanings of the
title, "Of the Right of Philosophy To Right."
We come now to the ethical, legal, and political significance of this difference
from Adorno and, even more evidently, from Horkheimer. F_orAdorno, the "end
o_f_philo_sophy," which must come with the full acknowledgment of the horror of
th~ij_ol9Caust,27 Jeft him only with "negative dialectics." For Adorno, the violence
of the idealist attempt to find "truth" in theory can only be exposed by demonstra-
ting its "nontruth." To pretend that in this fallen world we could give an affinnative
account of the conditions of truth or of justice would only further perpetuate the
violence of idealism. Even in art, the possibility of redemption can only be sbown
~egatively. To try to abstractly portray the conditions of redemption, to give fonn
toih"ehope of reconciliation as if it existed now, only promotes accommodation
to a fallen world. As a result, Adorno does not reflect on the conditions of justice
and the relation of these conditions to positive law, either through a quasi-
transcendental inquiry or through emprica! analysis. Such a reflection is fore-
closed by bis negative dialectics. Thus, as 1 have argued in the first chapter, e ven
if bis negative dialectics carries within it an ethical message that can be de~ed,
this message cannot be translated into an account of justice and its relatton to
law.
Yet, Derrida does give us such an account, which can neither be identified
simplistically as "negative" oras "positive," if by a positive account we mean
the elaboration of justice as a given set of descriptive conditions. lf the second
half of this book has hada central purpose, it has to have been to 1-...:mterpret the
Derridean double gesture so as to answer Thomas McCarthy's que~ ion: "[H]ow
is tolerance of difference to be combned with the requirements of living together
under common norms ?"28
It should be noted, however, that it is a mistake to reduce Derrida's account
of"ustice as three aporias 29 to the "tolerance of difference." Respect fordifference,
:lO (e)I
as we saw in the discussion of Bowers v. Hardw1ck and Roe v. Wa 1.s
undoubtedly crucial to a society whose laws aspire to justice. But to reduce justice
to "tolerance of difference" would be to again identify justice with a positive
descriptioo or with established legal values or nonns. This reduction follows from
the mistak.e of trying to directly translate deconstruction or, as l have relabele.d
it, the philosophy of the limit, into a "positive" political or legal program. 1t 1s
1
182 I The Philosophy of the Limil Significance of the End of Man f 183
I
1

' '
perhaps no coincidence that the political significance of deconstruction has been which we can never close our eyes or ears through an appeal to what "is," even
emphasized in law. In law, the question of the relationship between rights, law, the "is" of "constitutional essentials."
and justice is unavoidable once judging is understood as inevitable in the process But perhaps the only way to end this book is with the voice of a woman who
of interpretation, a process which can never be reduced to merely following the knows there is no ending, at least not when it comes to the dream of Justice. In
rules. The realization that if justice is identified with positive "law" or with any response to a question as to why she did not become a lawyer, the narrator of
given conception of rights, it undermines the very concept of justice is, of course, lngeborg Bachmann's novel Malina gives the following answer:
not specific to deconstruction. To return to the example in the Introduction, John
Fine, as you wish. l'll express myself more clearly and get right to the point.
Rawls is always careful, even in his later work which displays a break with
I'd only like to add that there are warning signs. You know which ones I mean.
Kantianism, to distinguish bis conception of "overlapping consensus" from any Since justice is so oppressingly near and what I am saying does not exdude the
actual consensos established by the "conversation of mankind. " 32 For Rawls, the possibility of its being no more than a longing for the unattainab!e, pure
very idea of a constitution rejects the reduction of justice to politics. In this sense, greatness. That's why it is simultaneously both oppressive and near, but in the
his, too, remains a quasi-transcendental inquiry, if by quasi-transcendental we nearness, we call it injustice. J4
mean nothing more than the attempt to establish the conditions of justice prior
to the actual legal contests that constitute the day-to-day reality of adjudication
and legislation. Toe idea that justice is prior to politics is, for Rawls, a crucial
aspect of the constitutional tradition and to bis own theory of constitutional
essentials.
But if there is one important difference between Rawls' conception of an
"overlapping consensus" and his theory of "constitutional essentials" and Derri-
da's account of the three inescapable aporias of justice, it lies in the degree of
accommodation to the established nonns, even if those nonns are validly estab-
lished through an "overlapping" rather than an actual consensus. Derrida's ac-
count gives greater attention to the necessary "utopian" moment in the vigilant
insis~nce on the maintenance of the divide between law, established norms, and
Justice. The difference, in other words, lies in Derrida's suspicion of even a
quasi-transcendental inquiry if it is understood as a procedure to establish identifi-
able norms as "constitutional essentials." Toe danger of an "overlapping consen-
sos," as we saw in the chapter on time,n is that it still tums us to the past in a way
that can potentially limit legal transfonnation. Rawls himself always emphasizes
tolerance of difference as at the center of his suspicion of communitarianism.
But even so, he is more concemed than is Derrida to reconcile his theory of
"constitutional essentials" with established nonns. In the end, even ifboth inquir~
ies are quasi-transcendental, Rawls' analysis is ultimately more conservative than
Derrida's account of Justice as the three aporias. Simply put, Derrida's account
is no more "ineffable" than Rawls'; it is more utopian. Yet, if this utopian moment
demands that we always recognize the status of any positive principies, it does
not deny the necessity for their elaboration within law, understood as a shared
nomos. 1t only demands that we recognize that these principies cannot be identified
as Justice, even if this identification is done through an "overlapping consensos."
Deconstruction keeps open the "beyond" of cwrently unimaginable transforma-
tive possibilities precisely in the name of Justice. And so, we are left, as I have
4rgiled, with a command, "be just with Justice," and an infinite responsibility to

[.,
Notes

lntrodoctlon

SeeJacques Derrida, The Truth in Painting, trans. Geoffrey Bennington and Ian
Mcl..eod (Chicago and London: University of Chicago Press, 1987).
2. Heidegger in bis later work crosses out Being; see Martn Heidegger, Early Greek
Thinking, trans. David Farrell Krell and Frank A. Capuzzi (Harper & Row, 1985).
3. Jrgen Habennas, for example, has described what he believes to be the crux of the
Enligbtenment in bis lectures on modemity.For Habermas, modemity is not only
inseparable frorn, but is indeed defined by EnJighterunent ideals. SeeJrgen Ha-
bermas, The Philosophical Discourses of Modernity, trans. Frederick Lawrence
(Cambridge: Massachusetts Institute ofTechnology Press, 1987). Cf., further, John
Rawls, -ibe Domain of the Political and Overlapping Consensus," in New York
University Law Review, vol. 64, no. 2 (1989).
4. Por a conception ofthe rule of law, see John Rawls, A Theoryof Justice (Cambridge:
The Belknap Press, 1971), pp. 235-43.
5 Thomas Nagel, Partiality and Equality (Princeton: Princeton University Press,
1991).
6. Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Harvard Uoiversity
Press, 1982).
7. Alasdair Maclntyre, Whose Justice? Which RntionlJlity? (Notre Dame: Uoiversity
of Notre Dame Press, 1988).
8. Jrgen Habermas, Theory of CommunictltiveAction, vols. l and 2, tranS. Thomas
McCarthy (Boston: Beacon Press, 1984).
9. See generally HabennaS, Philosophicnl Discourses of Modernity.
10. Andrew Arato and Jean Cohen, Civil Society and Po.ticalTheory. ed. Thomas
McCarthy (Boston: Massachusetts Institute of Technology Press, forthcoming,
1991).
11. An example of someone who has questionedtbe political relevance of deconstructioo

185
 Notes I 187
1
186 I The Philosophy of the Limit

is Seyla Benhabib, in "Deconstruction, Justice, and 1he Ettcal Relation," in the but there is a relationship between the two thatcannot be entirely ignore!, particularly
forthcoming Cardozo Law Review, vol. 13 (1991). as certain fonns of moral realism den y the possibility of radical transfonnation, and
also particularly as this realism has been used in moral theory. As the counterexample
12. Jacques Derrida, "Force of Law: Toe 'Mystical Founda1ion of Authority,"' in
Cardozo .lw Review, vol. 11, nos. 5-----6,(1990), p. 971. of a unique underslanding of this realism, which could be reinterpreted in moral
theory so as nol lO foreclose radical transfonnation, see Sabina Lovibond, Realism
13. See, e.g. Thomas McCarthy, "The Politics of the Ineffable: Derrida's Deconstruc- arni Jnw.gination in Ethics (Minneapolis: University of Minnesota Press, 1983).
tionism," in Philosophical Forum, vol. 21, nos. 1-2 (Fall-Winter 1989-90). Cf.
Richard Bernstein, "Serious Play: The Ethical-Political Horizon of Jacques Derrida." 9. Adorno, Mininw. Moralia, p. 16.
in the Journal of Speculative Philosophy (Pennsylvania State University Press), 10. Ibid., p. 200.
1987. Although Bemstein clearly does not understand Derrida 's ethical and political 11. Ibid., p. 167.
theory, he recognizes from the outset, in a simplistic sense, that Derrida's ethics is
12. Adorno, Negative Dialectics, p. 144.
based on a tolerance of difference which is the very basis ofliberalism. Understanding
Derrida 's unique contribution, we must grapple with Derrida 's sympathy for a kind 13. Ibid., p. 161.
of liberal insistence on difference; however, even as we see this sympathy on bis 14. Ibid., p. 38.
part, we must recognize Derrida's severance from the liberal tradition by virtue of
15. Jbid., p. 143.
the fact that !1isinsis1ence is a Utopian moment lhat cannot be erased.
14. McCarthy, ibid., and cf. Nancy Fraser, 'The French Derrideans: Politicizing Decoo- 16. lbid., p. 27.
struction or Deconstructing the Political?" in Unruly Practices: Power, Discourse, 17. Ibid., p. 172.
and Gender in Contemporary Socio./ Theory, (University of Minnesota, 1990). 18. Ibid., p. 160.
15. Fraser, ibid. 19. Ibid., p. 167.
16. Peter Dews, Logic of Disintegration (London: Verso, 1987). 20. Ibid., p. 145.
17. See lngeborg Bachmann, Malina (New York: Holmes and Meier Publishers, loe., 21. Ibid., p. 11.
1990). In Malina, the smothering ofwomen by the definition of objects demands a 22. Robert Neville Hegel arni Whitehead: Conremporary Perspectives on Systematic
new experimental style which does not just redefine who women are. In order to !et
Philosoplry, ed'. George R. Lucas, Jr. (Albany: State University ofNew York Press,
the object speak, this time, woman as object, the system of definition must be broken
upon. The seemingly jarring style of the novel is what allows for the woman's 1986), p. 91.
experience to be decoded beyood the definition imposed upon her by her lover Ivan. 23. Ibid., p. 92. . ,,
18. See Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (New 24. Richard Rorty continues IOmalee this mistake. See "Philosophy in Amenca TodaY
. . U ersityofMinnesotaPress, 1982),
York: Routledge, 1991). mConsequences of Pragmatism (Mmneapo is. mv
pp. 211-30.
Chapter 1 25. Adorno, Negative Dialectics, p. 161.
26. !bid., p. 158.
l. Theodor W. Adorno, Negative Dialectics, trans. E. B. Ashton (New York: 1e
Continuum Publishing Co., 1973), p. 139. 27. Ibid., p. 159.
2. lmmanuel Kant, Foundiltions of the Metaphysics of Morals, trans. Louis White Beck 28. Adorno, Mnima Moralia, p. 247.
(lndianapolis: Bobbs~Merrill Company, lnc., 1959), pp. 30-31. 29. Adorno, Negative Dialectics, p. 163.
. . in's Cf. "The Language of
3. Adorno, Negative Dialectics, p. 145. 30. On one reading this understandmg d1ffers from 8 e~Jam h W .,. , _.., Peter
h A wbwgrap 1ca1 r1 mg , =
4. Michael Theneuissen, Sein und Schein, der Kritische Funlction Heggschen Logii: Man," in Rejlections: Essays, Ap omms, ." Brace Jovanovich, 1978).
(Frankfurt am Main: Suhrkamp. 1978), pp. 148-49. Demetz, trans. Edmund Jephcott (New York. Harcourt
5. Ibid. 31. Adorno, Negative Dialectics, p. 163.
6. Adorno, Negative Dialectics, p. 191. 32. Ibid.
7. Theodor W. Adorno, Mnima Moralia: Reftections from Damaged lije, ttanS- 33. lbid.
E. F. N. Jephcott (Londoo: New Left Books, 1974), p. 50. 34. lbid., p. 161.
8. 1 am using realism in the popular sense ratber than in tbe strict philosophicalsense. 35. lbid., p. 174.

'
L
 188 / The Philosophy of the Limit
Notes I 189
1
36. TheodorW. Adorno, Against Epistemology; A Metacritique: Studies 11 Husserl amJ 68. Adorno, Negative Dialectics, p. 172.
the Phenomenological Antinomies, trans. Willis Domingo (Oxford: Basil BI k II 69. Charles S. Peirce, The Collected Paperso/Charles Sanders Peirce, 193/-1934, ed.
1982), p. 162. ac we , Charles Hartshome and Paul Weiss (Cambridge, Mass.: Toe Belknap Press of
37. Fred R. Dallmayr, Twilighl of Subjectivity: Contributions to a Post-lndividualist the Harvard University Press, 1960), p. 130. Cf. bis "Evolutionary Love," in
Theory of Politics (Amherst: University of Massachusetts Press, 1981), p. 137. Philosophical Writings, ed. Justus Buchler (New York: Dover, 1955), pp. 361-74.

38. Adorno, Negative Dialectics, p. 357.

39. Theodor W. Adorno, ''The Idea of Natural History," trans. Bob Hullot, Telos, no.
Chapter 2
60 (Summer 1984), pp. 111-24. 1. Iris Young, ''The Ideal of Community and the Politics of Difference," in Soc. Theory
40. Adorno, Negative Dialectics, p. 203. & Prac., vol. 12, no. 12 (1986).

.
41. lbid., p. 204. 2. lbid., pp. 1-2.
.. 42 . lbid., pp. 203-4. 3. See generally Martn Heidegger, Jdentity and Difference, trans. loan Stambaugh
43. lbid., p. 203. (New York: Harper and Row, 1st ed., 1969). For Heidegger, the mediated synthesis
of relation determines what is to be related and how it is to be related. 1be relation
44. Arthur Schopenhauer, The World as Will and Representation, vol. 1, trans. E. F. J.
precedes what is related, and what is related is unknown to the relation. Heidegger's
Payne (New York: Dover Publications, 1969), p. 104.
"belonging together'' is part of ldentity. Such a question can be understood as
45. Adorno, Negative Dialectics, p. 299. Heidegger's cha1lenge to those who think within the Hegelian framework.
46 . Schopenhauer, The World as Will and Represemation, p. 104. 4. SeeGeorg W. F. Hegel, Natural Law, trans. T. M. Knox (Philadelphia: University

i' 47. lbeod~ W. Adorno and Max Horkheimer, Dialectic of Enlightenmem, trans. Jobn of Pennsylvania Press, 1975), pp. 93--94.
Cummmg (New York: Herder and Herder, 1972), p. 103.
5. Seeibid.
48. Adorno, Negative Dialectics, p. 404. 6. Law and economics scholars such as Judge Richard Posner continue to make this
49. lbid., p. 400. mistake. Cf. Richard Posner, The Economics of Justice (Cambridge, Mass.: Harvard
50. lbid., p. 38. University Press, 1981).
51. lbid., p. 281. 1. Gillian Rose, Hegel Contra Sociology (Atlantic Highlands, N.J.: Humanities Press,
52. lbid., p. 283. 1981), pp. 54-55 (footnote omitted).

53. lbid., p. 232. 8. Hegel, Natural law, p. 72 (foomote omitted).

54. lbid., p. 289. 9. See Rose, Hegel Contra Sociology. p. 56.

10. See ibid., p. 55 (quoting Georg W. F. Hegel, Jener Schriften, neu. hrsg. von Hans
55. lbid., p. 241.
Brockard und Hartmut Buchner (Hamburg: Felix Meiner, 1979), pp. 458-59).
56. lbid., p. 238.
lI This is Robert Nozick's critique of JohnRawls. See Robert Nozick, Anarchy, Stare,
57. lbid. and Utopa (New York: Basic Books, 1974).
58. lbid., p. 264. 12. See Rose, Hegel Contra Sociology, p. 69 (quotingGeorg W. F. Hegel, Sysum der
59. lbid., p. 262. Sittlichlceit, Hrsg. von Georg l,arson, ed. Pbilosophische Bibilothek, Bd. I44a
60. [bid. (Hamburg: Felix Meiner, 1967), p. 53).
61. lbid., p. 220. 13. 1 have argued that the Hegelian view of the subject divested of sovereignty meets
Michael J. Sandel' s requirements for a reformulated conception o the subjC:t and
62. lbid., pp. 283-84. thecommunity. Drucilla Cornell, ''Toward a Modem/POstmodem Reconstruct1onof
63. Hans-Georg Gadamer, Truth aM Method (New York: Crossroad, 1975). Ethics," University of Pennsylvania Law Review, vol. 133, no. 2 (1985).' P 360.
64. Rorty, "Philosophy in America Today." Toe community would no longer be understood as an extemal, coemve force
tolerated at best as an unfortunate necessity. As Sandel points out, Nozick's critique
65. Sabina Lovibond, Realism and /magination in Ethics.
o Rawlsian redistributive justice rests on a view of the constitutive, possessive
66. lbid., p. 195. subject. Michael J. Sandel, I,iberalism and the Limits o/Justice (New York:~-
67. Adorno, Mnima Mora/ia, p. 274. bridge University Press, 1982), pp. 96-Cfl. In the termS of the young Hegel, Noz1ck
 190 / The Philosophy of the Limit Notes / 191

,, is the latest version of the myth of empirical natural Jaw. The mistake is tbe same- of its "ruse" and of its "perfidy." Only such a community can import from abroad "thc
l to confuse a description of civil society with a justification for its continuation as the exploitation of manby man."
only legitimate principie of social ordering.
lbid., p. 119.
1
14, See Heidegger, ldentity and Difference, p. 47 (emphasis in original).
31. lbid., pp. 245-46.
15, lbid.
32. See ibid., p. 125.
16. Heidegger, Identity and Difference.
33. Ibid., p. 112.
"For Hegel, the conversation with the earlier history of phi]osophy has the character
of Aujhebwrg, that is, of the mediating concept in the sense of an absolute foundation. 34. lbid., pp. 139-40.
"For us, the characler of the conversation with the history of thinking is no longer
35. Ibid., p. 246.
Aujhebung (e\evation), but the step back.
"~evation leads to the beightening and gathering area of truth positcd as absolute, 36. lbid., p. 244.
truth lll the sense of_tbe completely developed cenanty of self-knowing knowlcdge. 37. See Mark C. Taylor, Erring: A Postmodern Altlwology (Chicago: University of
'The stcp back poml5 to the realm which until now has been slcippedover. and from which
Chicago Press, 1984).
the essence of truth becomes firs1of ali worthy of thought."
38. Robert Bemasconi, "Levinas Face to Face-With Hegel," in Jourool o/ the British
lbid., p. 49 (footnote omitted).
Society for Phenomenology, vol. 13, no. 3 (1982), p. 269.
17. lbid., p. 29 (emphasis in original). 39. Emmanuel Levinas, Ethics and [njinity: Conversations with Philip Nemo, trans.
18. See Jacques DeITida, WritingandDijference. trans. Alan Bass (Chicago: University Richard A. Cohen (Pittsburgh: Duquesne University Press, lst ed., 1985), p. 98.
of Chicago Press, 1978), pp. 251-60.
40. Emmanuel Levinas, Totality and Infinity: An Essay on Exteriority, trans. Alphonso
19. See DeITida, Writing and Dijference, p. 275. Lingis (Pittsburgh: Duquesne University Press, 1969), p. 101 (footnote omitted).
20. See Theodor W. Adorno, Negative Dialectics, ttans. E. B. Ashton (New York: The 41. See DeITida, Writing and Difference, p. 127.
Continuum Publishing Co., 1973), p. 350.
42. lbid., p. 128.
21 Georg W. F. !fe gel, "lntroduction: Reason in History," in Lectures on the Philosophy
43. Ibid., p. 107.
of World History, ed. Johannes Hoffmeister, trans. H. B. Nisbet (Cambridge:
Cambridge University Press, 1953), p. 55. ("The patriarchal state is viewed, either 44. Sirnone de Beauvoir, The Second Sex, trans. H. M. Parshley (New York: Random
in relation to the whole orto sorne branches (ofthe human family), as thal coodition House, 1974).
in which, together with the legal elemeot, the moral and emotional find tbeir 45. DeITida, Writing and Difference, p. 114.
fulfillment." (emphasis in original))
46. lbid., p. 141.
22. Adorno, Negatve Dialectics.
47 Sigmund Freud, Beyond tlw Pleasure Principie, ed. and trans. James Strachey (New
23. lbid., p. 344. York: W. W. Norton andCo., 1961).
24. See Georg W. F. Hegel, Hegel's Science of Logic, t:rans, A. V. Miller (Atlantic
48. Derrida, Writing and Difference, p. 259.
Highlands, N.J.: Humanities Press Intematiooal, 1969).
49. See Richard Rorty, Philosophy and the Mi"or o/ Nature (Princeton: Princeton
25. Theodor W. Adorno, Mnima Moralia: Refkctions from Domaged Lije, trans. E. F.
University Press, 1980).
N. Jephcott (London: New Left Books, 1974), p. 17.
50. Plato, Phaedrus, trans. R. Hackforth, in Tlw CollectedDialogues o/ Plato, ed. Edith
26. lbid., pp. 17-18. Hamilton and Huntington Caims (Princeton: Princeton University Press, 1961).
27. See Hegel, Natural law, p. 93.
51. Derrida, Writing and Difference, p. 80.
28. See Adorno, Mnima Moralia, p. 233.
52. Adorno, Negative Dialectics, p. 191.
29. See Jacques DeITida, OfGrammatology. t:rans. Gayatri Chakravorty Spivak (Balti-
more: Johns Hopkins University Press, 1976), pp. 244---45. 53. Adorno, Minima Moralia, p. 223.

30. Only an innoceot community, an<Ia community of redllCed dimeosions (a Rou:sseanist 54. !bid., p. 247.
theme tbat will soon become clcam"), oo.ly a rnicro-society of non-violmcc aod fieedom, ali 55. lacques Derrida, "Of an Apocalyptic Tone Recently Adopted in Philosophy,"
the membels of which can by rights remain within range of m iroox:diate aod transpUCIII. a SEMIA, vol. 23 (1982), pp. 84-85.
"crystalline" lllldnlss, fully self-present in its living speech, oaly sucbacomownitycan suffer".
56. JacquesDerrida, "Dijfrance," inMarginsof Philosophy. trans. Alan Bass (Chicago:
115the surprisc of ao aggression oomiogjrom wit/totd, die insiPU..., of writmg. tbe infibntion
University of Chicago Press, 1982), p. 18.
192 f The Philosophy of the Limit Notes / 193

57. Ibid.,p.19. him, my undergoing, undo the core of what is identity in me. Proximity, suppn:ssionof
58. Jacques Derrida, "Des Tours de Babel," in Dljference in Translation, ed. and trans. the distance that consciousnessof . . . involves.opensthe distance of a diachmny withoot
Joseph F. Graham (Ithaca: Comell University Press, 1985), p. 165. a common present, wbere difference is the past that cannot be caughl up with, an un-
imaginable future, the non-representablestatus of the neighhor behind which 1 am late
59. See Adorno, Mnima Moralia, p. 247. and obsessed by the neighbor. This difference is my non-indifferenceto the other.
60. Charles Levin, "La Greffe de "Zele": Derrida and the Cupidity of the Text," in The Proximily is a disturbance of !he remcmberahle time.
Structural Ailegory: Reconstructive Encounters with the New French Thought, ed.
Levinas, Otherwise Than Being. p. 89.
John Fekete (Minneapolis: University of Minnesota Press, 1984), p. 224 (emphasis
in original). 8. For example, Nietzsche associated action ata distance with the aura and the power
of the feminine. "Women [Die Frauen] and their action ata distance. ... Toe
61. Derrida, "Of an Apocalyptic Tone Recently Adopted in Philosophy," p. 94.
magic and the most powerful effect of woman is, in philosophical language, action
62. Jacques Derrida, "Of an Apocalyptic Tone Recently Adopted in Philosophy ." Toere ata distance, actio in distans; but this requires first of ali and above all---distance."
is no explicit connection drawn by Derrida between his use of dreaming and Walter Friedrich W. Nietzsche, The Gay Science: With a Prelude in Rhymes and an
Benjamin's reliance on a version of the col!ective unconscious in the Passagen- Appendix of Songs, trans. Walter Kaufmann (New York: Random House, lst ed.
Werk. Yet the tone and the implication that we dream collectively is reminiscent of 1974), p. 123.
Benjamn. Benjamin tried to save the collective unconscious from its conservative
9. Georg W. F. Hegel, Hege/'s Science of Logic, trans. A. V. Miller (Atlantic High-
appropriation in the works of Jung and Klages. In Benjamn, the ur-images have a
lands, N.J.: Humanities Press lntemational, 1969).
transient rather than an ontological status. Benjamn uses his aJlegorical understand-
ing of social history to free the dream images from their containment within an 10. See the first three transitions of Hegel's Science of Logic.
unchanging symbolism. 11. Georg W. F. Hegel, Hegel's Philosophy of Right, trans. T. M. Knox (New York:
63. Alasdair Maclntyre, Whose Justice? Which Rationality? (London: Duckworth, Oxford University Press, 1952).
1988). 12. Ibid., pp. 152-58.
64. Ibid. Maclntyre essentially agrees with me here. 13. Karl Popper, The Open Society and lts Enemies (Princeton: Princeton University
Press, 1971).
Chapter 3 14. Georg W. F. Hegel, Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford
University Press, 1977), pp. 481--84.
15. Hegel, Philosophy of Right, pp. 23-36.
l. Emmanuel Levinas, Otherwise Than Being or Beyond Essence, trans. Alphonso
Lingis (Toe Hague: Martinus Nijhoff Publishers, 1981 ); Emmanuel Levinas, T otality 16. Hegel, Philosophy ofHistory, trans. J. Sibree (New York: Dover, 1956), P 100.
and lnjinity: An Essay on Exteriority, trans. Alphonso Lingis (Pittsburgh: Duquesne 17. Emmanuel Levinas and Richard Keamey, "Dialogue with Emmanuel Levinas," in
University Press, 1969). Faceto Face withLevinas, ed. Richard A. Cohen (Albany: State University ofNew
2. Levinas, Otherwise Than Being. York Press, 1986), p. 27.
3. Jacques Derrida, Glas, trans. John P. Leavey, Jr. and Richard Rand (Liocoln: 18. As Derrida has argued in his latest essay on Levinas, the ethical relation can be read
University of Nebraska Press, 1986), p. 1. to demand radical ingratitude. J. Derrida, "En ce Moment Mme .dans ~et Ouvrage
Me Voici," in Jacques Derrida, Psyche: inventions de/' autre (Pans: Galde, 1987),
4. !bid. p. 159. Gratitude, as a kind of restituton, would again appropriate the Other to the
5. !bid., p. 115. ,ame.
6. 1 am adopting the phrase redemptive criticism from Jiirgen Habermas who uses it to 19. Levinas, Totality and lrifinity, p. 23.
describe Benjamin's project of saJvaging the remains. Jrgen Habermas, "Conscious-
20. Hegel's concept ofthe necessary relationship between the infinite and the finite has
ness-Raising or Redemptive Criticism: Toe Contemporaneity of WaJter Benjamn,"
in New Gennan Critique, vol. 6, no. 17 (Spring 1979), pp. 30-59. been rejected by recent mathematicians.

7. It would be a mistake to readproximity as "closeness" in the usual sense of the 21. Derrida, Glas, p. l.
word. As Levinas explains: 22. Martin Heidegger, Jdentity and Difference, trans. Joan Stambaugh (New York:
Proximity as a suppression of distance suppresses lhe diSW1ceof (X)(lSCioosness of . Harper and Row, lst ed., 1969), pp. 50-51.
. 1be neighbor excludes himself from !he thooght lhat seeksbim, aod this exclusion 23. Heidegger in his Jater work crosses out Being.
has a positive sidc to it: roy e:ii;posureto him, antecedentto bis ai,,carlng, my delay t,ebind
24. Derrida, Glas, p. 46.
 1
194 I The Philosoplry of the Limit Notes f 195
1
,.
;, : 25. Robert Bemasconi has eloquently argued that we should adopt the second reading Harvard University Press, 1986) has defended Derrida as a serious philosopher. 1
' of Levinas: "Derrida reads Levinas' 'transcendence' as standing outside history and agree with him that Derrida is indeed a serious philosopher. Yet I disagree with his
concludes that th.e 'anhistoricity' of meaning at its origin is what profoundly separates attempt to draw a rigid boundary between literature and philosophy. Glas is a reading
Levinas from Heidegger." Robert Bemasconi, "Levinas and Derrida: Toe Question effect and nota traditional philosophicaJ statement for a reason. Derrida's literary
ofthe Closure ofMetaphysics," in Face toFace with Levinas, ed. Richard A. Cohen experimentation is not just as an aside of a creative personality, but is instead
(Albany: State University of New York Press, 1986), p. 193 (quoting Jacques essential to deconstruction itself which constantly shows us the limit of philosophy.
Derrida, Writing and Difference, trans. Alan Bass (Chicago: University ofChicago
33. Derrida, "Acts," p. 132.
Press, 1978), p. 148). Derrida 's point here arises out of the apparent opposition of
infinity and history in Levinas. Certainly the notion of "beyond history" dominates 34. 1 put the end of metaphysics in quotation marks because I do not try to think. there
,: the preface of Levinas' Totality and /nfinity, pp. 21-30. And yet it should be can be an end to metaphysics.
emphasized that Levinas has in mind here a theological conception of history, which 35. Levinas has explained bis difference from Derrida in the following way:
he refers to Hegel, whereby history is constituted as a totality ordered by judgment. It is true that philosophy, in its traditional forms of ontotheologyand logocentrism-to
Bemasconi, "Levinas and Derrida," p. 181. use Heidegger's and Denida's terms--has come toan end. But it is nol true of phi\osophy
26. Jacques Derrida, "Acts," in Mmoires for Paul de Man, ed. Avital Ronell and in the other sense of the critica! speculationand interrogation.Tiie speculativepractice
Eduardo Cadava, trans. Cecile Lindsay, Jonathan Culler, and Eduardo Cada va (New ofphilosophy is by no meaos near its end. In~, the wholeconten_i~ discourseof
oveocomingand deconsttuctingthe metaphysicsis far more spec~JatJ.ve m~y res~ts
_LO
York: Columbia University Press, 1986), p. 137.
than is metaphysicsitself. Reason is nevermore versatileas when1tputs1tselfmq~est1on.
27. Adriaan Peperzak. has hlghlighted this potencial difficulty in Levinas: In the contemporary end of philosophy, philosophyhas found a new lease on hfe.
What Levinas rejects mosl of ali in Hegel's theory ofbeing and nature is the thesis that Levinas and Kearney, "Dialogue with Emmanuel Levinas," p. 33. Yet, ce~nl~,
the infinite itself reveals itself within and as the realm of the anonymous in which Derrida would be only too willing to recognize the "speculative" moment w1thm
Leviathans are at home. As the element of magic forces. mythic gods, and delightful deconsnuction. Toe difference between the two thinkers is not that Derrida would
.., enthusiasms, nature cannot reveal lhe infioite, because it exists aod "is" in anotherway deny that reason is never more versatile than when it puts itself in question, but
than being, in its oscillation into and out of nonbeing. Levinas' hatred for this conception
of relationshipbetweenthe finite and the infinite is mostdearly exprer.sedin his polencs rather that even this versablity runs up against the limits of philosophy in the attempt
against Heidegger's attempt al resuscitatingthe gods ofGreece aod of Hoelderlin, throu.gh to faithful\y pay tribute to the remain(s).
a celelmltion of !he divine as it appears in !he phenomena of the earth, with its places, 36. Derrida, "Acts," p. 145.
woods, and rivers, in works of art, in the heroes of politics or thought, and in the time
37. Jacques Derrida, "Des Tours de Babel," in Dijference n Translation, ed. and trans.
of destiny. It is, however, easy to adapt Levinas' criticism to Hegel' s way of looking at
nature and culture as the expressions of the absolute life unfo\ding itself throu.ghthe Joseph F. Graham (lthaca: Comell University Press, 1985), p. 191. a. Chapter 2.
hierarchy of stones and stars, plants, animals, arnl people, states and history. 38. Jacques Derrida, "The Art of Mmoires," in Mmoires for Paul de Man, p. 52.
However, can we not defend Hegel against lhis criticism? Doesn't he s.ay that tbe
natural exterlority of the idea should not be isolated from its interior light and that, if it 39. Ibid.
were isolated, nature would indeed be an ungodly, monsterly chaos withou1any meaning. 40. Derrida, .. Mnemosyne," p. 34.
sttucture, value, light? And couldn't Hegel ask Levinas how he can avoid a dualistic 41. Derrida, ''The Art of Mmoires," p. 53.
view, according to which part of the world-belllg or il y a-is essentially unho]y and
unredeemable? How can bcing thus be conceived of as created? 42. Derrida, "Mnemosyne," p. 35.
Adriaan Peperzak, "Sorne Remarks on Hegel, Kant, and Levinas," in Faceto Face 43. Ibid., p. 38.
with Levinas, ed. Richard Coben (Albany: State University of New York Press, 44. Derrida, "The Art of Mmoires," p. 75.
1986), p. 209.
45. Derrida, Glas, p. 118.
28. Derrida, Glas, pp. 1-2.
46. lbid.
29. lbid., p. ll5.
47. lbid., p. 209.
30. Jan de Greef has powerfully argued that Derrida's intenugation of Levinas sbould
48. Derrida, ''The Art of Mmoires," p. 58.
be read as the return of the skepticaJ critic. Although l disagree with bis reading, be
offers us a convincing argument for hls own position. Jan de Greef, stepticism 49. Derrida, Glas, p. 86.
and Reason," in Faceto Face with Levinas, pp. 159-79. 50. Ibid., pp. 145-46.
31. Jacques Derrida, "Mnemosyne," in Mimoires for Paul de Man. p. 21. 51. Ibid., pp. 116-17.
32. Rodolphe Gasch, in his excellent book, TMTain of tM Mirror(Cambridge, Mass.: 52. James Joyce, Fin.negans Wake (New York: Penguin Books. 1939).
 ,1
196 / The Philosophy of the Limit Notes I 197

53. See Walter Benjamin, "The Destructive Character," in Reflections: Essays, Apho should be noted. Benjamn is more explicit than Adorno in tracing the history of
risms, Auzobiographical Writings, ed. Peter Demett, trans. Edmund Jephcott (New mimesis to the response of ''primitive" human nature.
York: Harcourt Brace Jovanovich, 1978), pp. 301-3.
74. Theodor W. Adorno and Max Horkheimer, Dialectic of Enlightenment, trans. John
; 54. Derrida, Glas, p. 204. Cumming (New York: Herder and Herder, 1972).
I' ;'.1 55. Jacques Derrida and Christie McDonald, "Choreographies," in The Ear of the Other: 75. Derrida, Glas, p. 235.
i( Otobiography, Transference, Translation, ed. Christie McDonald, trans. Peggy
1 , 76. Iacques Derrida, SignpongelSignsponge, trans. Richard Rand (New York: Colum-
'1 ,;,!. Kamuf (Llncoln: University of Nebraska Press, 1985).
bia University Press, 1984), p. 4.
56. Derrida, Glas, p. 117.
'"
' 77. Derrida, Glas, p. 215.
''
1 ,.
57. Jacques Derrida, The Ear o/ the Other. Cf. Geoffrey Bennington and Jacques
78. Derrida, "The Art of Mmoires," p. 73.
' ' Derrida, Jacques De"ida (Paris: Seuil, 1991).
::l 58. Derrida, "Mnemosyne," p. 34.
79. J. Hillis Miller, The Ethics of Reading: Kant, de Man, Eliot, Trollope, James anti
Benjamin (New York: Columbia University Press, 1987), pp. 104-5.
'!,1,'I
;1.
59. Derrida, Glas, p. 34.
: if 80. lbid.
; :a 60. Ibid., p. 35.
81 . See, for example, the debate between Richard Bemstein and Reiner Schunnann
,: ::' 61. HlCneCixous, "Sorties," in The Newly Born Woman, trans. Betsy Wing (Minneapo-
:: ,:
,,.1, lis: University ofMinnesota Press, 1986), p. 84.
which shows divergen! positions. Richard Bemstein, "Heidegger on Humanism," in
Praxis lnternarional, vol. 5 (Oxford: Basil Blackwell, 1985), pp. 95-114, and
11 1
!J h 62. Toe "auratic gaze" is a phrase adopted by Walter Benjamin. Miriam Hansen has Scbunnann's response.
; .
succinctly described the role of the auratic gaze in Benjamin's infinite task of
!Lt
sa1vaging the remain(s):
82. Jacques Derrida, "Violence and Metaphysics: An Essay on the Thought of Emmanuel
! i, Levinas," in Writing anti Difference, p. 79.
'1 !!
The "gaze hcavy with distance" lhal Benjamin 1eads in Baudelairc's "regardfamilitr''
,, tums on the same axis that, according to Freud. links "unhehniich" to "Mimlich, a
83. lbid., p. 111.

i :t psychic ambivalence wbich challenges the nan:issistic complacency of the gu.e:

H

84. Levinas and Keamey, "Dialogue with Emmanuel Levinas," p. 32.

1, dceperthe absence of lhe counterpart which a gaze had to overcome, the stmnger 1ts 85. Robert Bernasconi, "Deconstruction and the Possibility ofEthics," in Deconstru.ction
spell. In eyes that merely mirror the other, this absence remain(s) undiminished." and Philosophy, ed. John Sa1lis (1987), p. 135.

r Miriam Hansen, "Benjamin, Cinema and Expericnce: 'The Blue Aower in the Land
of Technology, "' New German Critique, vol. 14, no. 40 (Winter 1987), PP 179,
86.
87.
lbid., pp. 135-36.
Derrida, "Acts," p. 137.
217.
88. Derrida, SignpongelSignsponge, p. 121.
63. Nietzsche, The Gay Science, 60.
89. lbid., p. 125.
64. Derrida, Glas, p. 115.
90. For a longer discussion of Lacan 's ana1ysis of the psychical fantasy of woman in the
65. lbid.
construction of the gender hierarchy, see chapter 1, ''The Maternal and the Femi-
66. Denida, Glas, p. 65. nine," in my Beyond Accommodalion.
67. "His tomb, he loves only that: Sa falls, it !oves only f [Sa lambe, i1 n'ainre qlU! 91. Julia Kristeva, Black Sun: Depression and Melanclwlia, tram. Leon S. Roudiez
~]. Ibid., p. 201. (New York: Columbia University Press, 1989).
68. lbid., p. 229. 92. Luce Irigaray, "Questions to Emmanuel Levinas: On the Divinity of Love," The
69. Ibid., p. 175. lrigaray Reader, ed. Margarct Whitford (London and Cambridge, Mass.: Basil
Drucilla Comell, Beyond Accommoda1ion: Elhical Feminism, Deconstruction and Blackwell, 1991), p. 178.
70.
the Law (New York: Routledge, 1991). 93. Simone de Beauvoir, The Second Sex, trans. H. M. Parshley (New York: Random
Denida, Glas, p. 227. House, 1974).
71.
Walter Benjamin, ''On the Mimetic Faculty," in Rejlections, p. 333. 94. Luce lrigaray, "Questions to Emmanuel Levinas," p. 182.
72.
It is important to note here that although they are obviously similar, Adorno's and 95. Jacques Derrida, The Post Card: From Socrates to Freud and Beyond, trarui. Alan
73.
Benjamin's conceptions of mimesis are not identical. As noted in tbe first cbapter, Bass (Chlcago: University of Cbicago Press, 1987).
Adorno borrowed the metaphor from Benjamin andBenjamin's inftueDceon AdomO 96. Walter Benj~, ''Theologico-Political Fragment," in Reflections, pp. 312-13. 1

;
198 I The Phosophy of the Limit
Notes I 199

would a1so trace Paul de Man's brilliant misreading of Benjamn to bis failure to
IO. Emmanuel Levinas, Totality ami lnfinity: An Essay on Exteriority, trans. Alphonso
fully grasp the relationship between the nihilism that must result from the profane
Lingis (Pittsburgh: Duquesne University Press, 1969), pp. 37-38.
striving for happiness and Benjamin's own messianism. Benjamin's "nihilism" is
the affirmation of the striving for happiness not only for its own sake, but because 11. lbid., p. 21.
such striving forces us to reject what is and therefore helps clear the way for the 12. lbid., pp. 21-22.
messiah. De Man is right that in Benjamin history is not messianic. But the striving 13. lbid., p. 199.
for happiness undennines the pure disjunction between ltistory and messianic inten-
sity that de Man finds in Benjamin's texl. Paul de Man, The Resistance to Theory 14. Emmanuel Levinas, Otherwise Than Being or Beyond Essence, trans. Alphonso
(Minneapolis: University of Minnesota Press, 1986). Lingis (The Hague: Martinus Nijhoff Publishers, 1981), p. 139.
15. lbid., p. 139.

97. Levinas, Otherwise Than Being, p. 151. 16. Blanchot, The Writing of Disaster, p. 2.
17. Cf. chapter 2.
18. See Gary Peller, ''The Metaphysics of American Law," California Law Review, vol.
Chapter 4 73, no. 4 (1985), pp. 1160-70.
19. Duncan Kennedy, "Forrn and Substance in Private Law Adjudication," Harvard
1. Maurice Blanchot, The Writing of the Disaster, trans. Ann Smock (Lincoln: Univer- Law Review, vol. 89, no. 8 (1976).
sity of Nebraska Press, 1986), p. 144. 20. Ibid., p. 1685.
2. Jrgen Habermas, On Human Values, ed. McMurrin M. Sterling (Sa1t Lake City: 21. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1%1).
Univenity of Utah Press, 1987), pp. 217-19.
22. Marbury vs. Madison, 5 U.S. (1 Cranch) at 137. Tbis case is the constitutional
3. Stanley Fish, Doing What Comes Natural/y: Change, Rhetoric, and the Practice of master rule of recognition, because it establishes the division of powers between the
Theory in Literary and Legal Studies (Durham: Duke University Press, 1989). Supreme Court, the Executive, and the Legislative, in terrns of wbo has lhe last
4. Franz Kafka, ''In the Penal Colony ," in The Penal Colony: Stories and Short Pieces, word on constitutional interpretation.
trans. Willa Muir and Edwin Muir (New York: Schocken Books, 1961), p. 191- 23. Rona1d Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University
227. Press, 1977).
5. Roben Cover, "Violence and lhe Word," Yate Law Journal, vol. 95, no. 8 (1986), 24. Cf. the "rule-following chapter" ( 138---242)of Ludwig Wittgenstein's PhHosophi-
p. 1600. cal lnvestigations (New York: MacMillan, 1958), pp. 53--88.
6. See John Stick, "Can Nihilism Be Pragmatic? (Buyer's Guide)," in Harvard Law 25. See, for example, ibid., 198---202(pp. 80--81).
Review, vol. 100, no. 2 (1986); Charles Yablon, 'The Indetenninacy of the Law:
Critica] Lega] Studies and the Problem of Lega1 Explanation," in Carduza Law 26. Levinas, Otherwise Than Being, p. 198.
Review, vol. 6, no. 4 (1985). 27. Ibid., p. 151.
7. Drucilla Comell, "Institutionalization of Meaning, Recollective Imagination, and 28. Jacques Derrida, The Post Card: From Socrates to Freud and Beyond, trans. Alan
the Potential for Transfonnation in Legal Inteipretation," in University ofPennsylva- Bass (Chicago: University of Chicago Press, 1987), p. 441.
nia Law Review, vol. 136, no. 2 (1988), p. 1135. 29. Martha Minow, ''The Supreme Court, 1986 Tenn----Foreword: Justice Engendered,"
8. E.g., sorne Neo-Pragmatists have implicitly tried to appeal to what Hegel would Harvard Law Review, vol. 101, no. 1 (1987), p. 10.
have ca1led objective spirit in order to justify moral and legal ideals. Hegel's own 30. Ibid., pp. 90-95.
system, however, was based on the realization that an appea1 to objective spirit could
31. Robert Cover, ''The Supreme Court, 1982 Term-Foreword: Nomos and Narrative,"
never justify the ideal. In order to justify the ideal, by showing it as the truth of the
Harvard Law Review, vol. 97, no. 1 (1983), p. 16.
actual, Hegel had to culminate his system in absolute knowledge. _See,for e~le,
a Neo-Pragmatist who makes the mistake of reducing the justificaban to conventJoo: 32. Ibid., p. 16.
Richard J. Bemstein, Beyond Objectivism and Relativism: Science, Herme:neutics, 33. Georg W. F. Hegel, Hegel's Science ofLogic, trans. A. V. Miller (Atlantic High-
and Praxis (Philadelphia: University of PennsyJvania Press, 1983). lands, N.J.: Humanities Press Intemational, 1969).
9. As we saw in the second chap<er, Kant's problem in legal pbilosophy is tbat he 34. Levinas, Otherwise Than Being, p. 158.
cannot reconcile the realm of freedomwith tbe reaJmof necessity.
35. Ibid., p. 161.
 -~

200 / The Philosophy of the Umit Notes f 201

36. Virgina Woolf, To the Lighthouse (London: 1964). Ronell and Eduardo Cadava, trans. Cecile Lindsay, Jonathan Culler, and Eduardo
37. SeeRona1dDworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard Univer- Cadava (New York: Columbia University Press, 1986), p. 82.
sity Press, 1977). But cf. l.Aw's Empire (Cambridge: Belknap Press, 1986), where
he seems to have reversed bis opinion that there could be one right answer precisely Chapter 5
because of his understanding of the centrality of legal interpretation.
1. Niklas Luhmann, "Law as a Social System," in the Northwestem l..aw Review, vol.
38. Cover, "The Supreme Court, 1982 Term--Foreword," pp. 4-5. 83, p. 140.
'i 39. Cf. chapter 5. 2. !bid.

!
40. Levinas, Otherwise Than Being, p. 165. 3. For Luhmann's discussion of "deparadoxicalization," sec ibid., p. 145.
'
41. Jrgen Habermas, Theory of Communicative Action, vols. 1 and 2, trans. lbomas 4. 1deliberately use thevisual metaphor to underscore theimportanceLuhmann himself
McCarthy (Boston: Beacon Press, 1984). explicitly gives to the observer.
1
---,
li' 42.: Jacques Derrida, ''The principie of reason: the university in the eyes of its pupils," 5. Niklas Luhmann, ''Operational Closure and Structural Coupling: The Diffcrentiation
in the Graduate Faculty Philosophy Journal, vol. 10 (Spring 1984), pp. 5-45. of the Legal System," in Cardozo Law Review, vol. 13 (forthcoming).
11. 43. Hans Blumenberg, Was ist Salwlarisierung?, trans. M. Staliman (Tuhngen: J. C. 6. lbid.
.. B. Mohr, 1960), p. 33 .
7. Jrgen Habennas, "What is Universal Pragmatics?" in Communication and the
; .1
11 44. Jacques Derrida, "Force of Law: Toe 'Mystical Foundation of Authority.'" in Evolution of Society, trans. Thomas McCartby (Boston: Beacon Press, 1979).
: 'i
..
;j
Cardozo Law Review, vol. 11, nos. 5-6 (1990). 8. See Jacques Derrida, "Force of Law: Toe 'MysticaJ Foundation of Authority, '" in
45. Charles Sanders Peirce, TheColkcted Papers o/Charles Sanders Peirce, ed. Charles Cardozo l.aw Review, vol. 11, nos. 5-6 (1990), p. 961. 1 am deliberately echoing
Hartshorne and Paul Weiss (Cambridge, Mass.: Harvard University Press, 1934), Derrida's reference to Stanley Fish's expression "fresh judgment" from his article,
1 587. "Force," in Doing What Comes Naturally: Change, Rhetoric, and the Practice of
' 46. Jacques Derrida, OfGrammatology, trans. Gayatri Chakravorty Spivak (Baltimore: Theory in Literary and Legal Studies (Durham: Duke University Press, 1989).
Jobos Hopkins University Press, 1976), p. 112. 9. See generally, Jobo Rawls, "The Domain of the Political and Overlapping Consen-
47. Cover, "Toe Supreme Court, 1982 Term-Foreword," p. 44. sus," in New York University Law Review, vol. 64, no. 2 (1989).

48. Jacques Derrida, "En ce Moment M8me dans cet Ouvrage Me Voici," in Psyche: 10. Luhmann, "Operational Closure."
inventions de I' autre (Paris: Galile, 1987). 11. See generally, Stanley Fish, Doing What Comes Natural/y: Change, Rhetoric, and
the Practice of Theory in Literary ami Legal Studies (Durham: Duke University
49. Jacques Derrida, "Violence and Metaphysics," in Writing and Difference. trans.
A]an Bass (Chicago: University of Chicago Press, 1978). Press, 1989).
12. For a discussion of the conflict within autopoiesis between the autooomy of a
50. Franz Kafka, "Vor dem Gesetz," in Parabks ami Paradoxes (New York: Schocken
nonnatively closed system and the dynamism of a cognitively opensystem, sec
Books, 1975), pp. 60-79.
Arthur Jacobson, "Autopoietic Law: 1be New Science of Niklas Lubmann," in
51. Cover, "1be Suprerne Court, 1982 Term-Forcword," p. 9. Michigan Law Review, vol 87, no. 6 (1989).
52. Jacques Derrida, "Des Tours de Babel," in Dijference in Translation, ed. and trans. 13. Luhmann, "Operational Closure" (footnote omitted; my emphasis).
Joseph F. Graham(lthaca: Comell University Press, 1985), p. 165. 14. Jrgen Habermas, The Legitimation Crisis, trans. Thomas McCarthy(Boston: Bea-
53. Cover, "Violeoce and the Word," p. 1628. con Press, 1975).
54. lbid., p. 1607. 15. Nildas Luhmann, we as Passion, trans. Jeremy Gaicresani and Doris L. Jones
(Cambridge, Mass.: Harvard University Press, 1986), p. 85.
55. Ibid., p. 1605.
16. Lubmann, "Operational Closure."
56. lbid.
17. lbid.
57. Derrida, "Des Tours de Babel," pp. 202-3.
18. Nildas Luhmann, "Closure and penness: On Reality in the World of Law," in
58. Cover, "The Supreme Court, 1982 Tenn---Forcword," p. 34. Autopoietic Law: A New Approach to Law and Society, ed. Gunther Teuboer, trans.
59. Cf. chapter 2. Ian Fraser (Berlin: de Gruyter, 1987), p. 337.
60. Jacques Derrida, "1be Art ofMbnoires," inMbnoires: ForPtlJlldeMan, cd. A vital 19. !bid.
 202 I The Philosophy of the Limit Notes I 203

20. Ibid., p. 340. 36. Jacques Derrida, "Diffrance," Margins of Philosophy, trans. Alan Bass (Chicago:
University of Chicago Press, 1982), p. 13 (emphasis in original).
21. Luhmann, "Operational Closure."
37. Georg W. F. Hegel, Phenomenology of Spirit, trans. A. V. Miller (Oxford: Jtford
22. lbid. (footnote omitted). University Press, 1977), p. 9.
23. As Luhmann himself explains: 38. Derrida, "Diffirance" (emphasis in original).
First of ali, wilh a comparable theoretical approach, it [the concept of autopoietic closureJ
39. Ibid., pp. 21-22.
replaces Kantian premises. This has chielly affectedepistemological questions. Autopoie-
tic systems neednot be transparent to themselves. They find nothing in themselves that 40. Derrida, "Force of Law," p. 943.
,, cou!d be regarded asan undeniablefact of consciousnessami applied as an epistemological 41. H. L. A. Hart, The Concept of law (Oxford: Oxford University Press, 1961).
!i a priori. Toe assumption of an a priori is Riplaced by recursivity itself .... It may be
; ., 42. Derrida, "Force of Law," pp. 943-45 (italics in origina], emphasis added).
11 il that continuing application of the operations available to the system to the results of
precisely those operations produces stable states ( which means states that repeat them- 43. lbid., pp. 961-69.
i,. (, selves in further operations, so-called "eigenstates"), or it may not, anddepending on the
11'1 44. lbid., p. 961.
typc::of operation, many, or few, or only one of these self-referentially stable states may
11,' exist. How far the system itself possesses reflexivecapacity lo observe its own states and 45. lbid., pp. 961-63.
1 ,,
" 1
finds its owo "identity" in them is another question.
.,r 46. Ibid., pp. 963----67.
,1
' Ihid., p. 336. 47. Ibid., pp. 96----65.
24. Niklas Luhmann, Tire Differentiation of Society, trans. Stephen Holmes and Charles 48. lbid., pp. 967-69.
Larmore (New York: Columbia University Press, 1982), p. 274 (emphasis omitted). 49. Lyotard is a much stricter Kantian than Habermas. See Jean-Fran;ois Lyotard, The
25. [bid., p. 283. Diffrand (University of Minnesota, 1988).
26. Ibid., p. 276 (emphasis in original; endnote omitted). 50. Derrida, "Force of Law," p. 967.
p 51. What is defined as rationality may be sexist. See Susan Okin, Justice, Gender, and
! 27. [bid., p. 308.
the Family (New York: Basic Books, 1989). Cf. Caro! Gilligan, /na DifferentVoice:
28. Ibid., p. 292 (citations omitted).
1I: Psychological Theory and Women' s Development (Cambridge, Mass.: HarvardUni-
1 29. [bid., p. 272. versity Press, 1982).
I',,,,'
'
30. Ibid., p. 278 (citations and notes omitted). 52. Derrida, "Force of Law," pp. 969--71 (emphasis added).
31. Ihid., p. 307 (citation omitted). 53. Emmanuel Levinas, Totality and lnfinity: An Essay on Exteriority, trans. Alphonso
Lingis (Pittsburgh: Duquesne University Press, 1969), p. 283.
32. Ihid., pp. 271-88.
Jrgen Habermas, Theory ofCommunicative Action, vols. 1 and 2, trans. lbomas 54. Ibid.
33.
McCarthy (Boston: Beacon Press, 1984). Cf. Jrgen Habermas, On Human Values. 55. lbid.
ed. McMurrin M. Sterling (Salt Lake City: University of Utah Press, 1987), pp. 56. Judith Butler, Gender Trouble: Feminism mu/ the Subversion of ldentity (New York:
217-19. Routledge, Chapman and Hall, 1990).
34. Luhmann, The Differentiation of Society, p. 318. 57. Ihid.
35. The concept of Dasein is one which is familiar to those who engage with Qerman 58. Nancy Fraser, "The French Derrideans: Politicizing Deconstruction or Deconstruct-
philosophy and especially with Heidegger. GeneraJly, it is "[t}his entity which each ing the Political?'' in Unruly Practices: Power. Discourse, andGender in Contempo-
ofus is himself and which includes inquiring as one of the possibilities of its Being." rary Social Theory, vol. 69 (1989).
Martn Heidegger, Being and Time, trans. John Macquarrie and Edward Robinson
59. See again Butler, Gender Trouhle.
(New York: Harper and Row, 1%2), p. 27 (footnote omitted). More specifically:
60. See Drucilla Comell, Beyond Accommodation: Ethical Feminism, Deconstruction,
[i]n everyday ui;age it [Dasein]tends lo be used more narrowly 10 stand for tbe ltind of
and the l.Aw (New York: Routledge, Chapman & HaJI, 1991).
being that belongs to persons. Heidegger follows the everyday usagein tbis respect, but
goes somewbat furtbcr in lhat he oflenuses it lo stalldfor any ptrson who has sucb Being, 61. Cf. Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge,
and who is thus an "entity" bimself. Mass.: Harvard University Press, 1989), for her eloqueot descriptioo ofthis rea1ity.

!bid., p. 27, note 1 (emphasis in original). 62. Ibid., p. 176.

 204 ! The Philosophy of the Limit Notes I 205

63. lbid. ered these interests sufficiently compelling to authorize the state to override a
64. lbid. woman's privacy interest.
65. lbid. 87. For background on the history of, and demand for, reproductive freedom, see
' 66. Brown v. Board of Education, 347 U.S. 483 (1954). generally, Linda Gordon, Woman' s Body. Woman' s RighJ: A Social History of Birth
Control in America (New York: Grossman, 1976); Rosalind Pollack Petchesky,
67. Jean-Pierry Dupuy, ''On the Supposed Pleasure ofNonnative Systems," inAutopoie
Abortion ami Woman's Choice: The State, Sexuality, and Reproductive Freedom
tic Law: A New Approach to law and Society, ed. Gunther Teubner (Berlin: 1988),
(New York: Longman, 1984).
p. 51-63.
88. For a more complete d.iscussion ofthe concept "collective imagination," see Drucilla
68. NikJas Luhmann, Religious Dogmatics w,d the Evolution of Society, trans. Peter
Come 11,"Institutionalization ofMeaning, Recollective Imagination and the Potential
Beyer (Lewiston: Edwin Mellen, 1984).
for Transfonnative Legal Interpretation," in University of PennsyfvonialAw Review,
69. Ludwig Wittgenstein, Tractatus Logico-Philosophicus, trans. C. K. Ogden (London: vol. 136, no. 4 (1988).
Routledge and Kegan Paul, Ltd., 1981), 7 (p. 189).
89. 'The fundamental aspiration of judicial decision-making {is] ... the application of
70. Luhmann, Love as Passion, p. 85. neutral principies sufficiently absolute' to give them roots throughout the community
71. Luhmann, "Law as a Social System." and continuity over significant periods of time .... " City of Akron v. Akron Center
for Reproductive Health, 462 U.S. 416, 458 (1983) (O'Connor, J., dissenting)
72. Ibid., p. 178.
(quoting Archibald Cox, The Role of the Supreme Court in American Govemmem
73. Friedrich Rolf Huber. (New York: Oxford University Press, 1976), p. 114).
74. Jacques Derrida, The Truth inPainting, trans. Geoffrey Bennington and Ian McLeod 90. Comell, "Institutionalization of Meaning."
(Chicago: University ofChicago Press, 1987).
91. Derrida, "Force of Law," pp. 953-55.
75. Cf. Luce Irigaray, Le Temps de diffrence (Paris: Librairie Gnrale Fnut?ise,
1989).
92. 1 am using "integrity" here in the sense given it by Ronald Dworkin, Low's Empire
(Cambridge: Belknap Press, 1986).
76. Luhmann, ''Operational Oosure."
93. Derrida, "Force of Law," p.' 955.
77. lbid.
94. As Blackmun himself explained: "We need not resolve the difficult question of
78. See, e.g., Stanley Fish, "Anti-Professionalism," in Cardozo Law Review, vol. 7, when life begins. Wben those trained in the respective disciplines of medicine,
no. 3 (1986). philosophy, and theology are unable to arrive at any consensus, the judiciary, at
79. Derrida, "Force of Law," p. 945. this point in the development of man's knowledge, is not in a position to speculate
80. Jacques Derrida, "Acts," in Mmoires: for p(W de Man, ed. Avital Ronell and as to the answer." Roe. 410 U.S. at 159.
Eduardo Cadava, trans. Cecile Lindsay, Jonathan Culler, and Eduardo Cadava (New 95. Toe trimester framework was set out as follows:
York: Columbia University Press, 1986), p. 145. (a) For the stage prior to approximately lhe end of the first trimester, the abortion
81. Emmanuel Levinas, Otherwise Than Being or Beyond Essence, crans. AlpbooSO decision and its effoctuation musl be left to the medical judgement of the pregnant
Lingis (Ibe Hague: Martinus Nijhoff Publishers, 1981), p. 184. woman's attending physician.
{b) For the stage subsequent to approximately lhe eod of the fust trimesler, the Sta.te,
82. Jacques Derrida, ''Tbe Art of Mimoires," in Memoires for Paul de Man, PP 56-57
in promoting its inlerest in the health of the motber, may, if it chooses, regulateabortion
(emphasis in origina]).
procedure in ways that are reasonably related to maternal beallh.
83. lbid., p. 58 (emphasis in original). (e) For the stage subsequent to viability, the State in promoting its interest in the
potentiality of human life may, if it chooses, regulate,andevenproscribe, abortionexcep1
84. Roe v. Wade, 410 U.S. 113 (1973).
where it is necessary, in appropriatemedical judgement, for the preservation of the life
85. Griswold v. Connecticut, 381 U.S. 479 (1965). or beaJth of the mother.
86. Catharine A. MacKinnon, Feminism Unmodified: Discourses on Ufe and Law Ibid., pp. 164--65.
(Cambridge, Mass.: Harvard University Press, 1987), p. 93. Two separatestate
96. Ibid., p. 171 (Rehnquist, J., dissenting).
interests have been identified. The first is preservi.ng and protecting the heahbof the
pregnant woman. The secood is protecting tbe potentiality of human life. "Each 'TI. Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989).
grows in substantiaJity as tbe woman approacbestemi and, at a point during ~- 98. lbid., p. 3056 (quoting Garcio v. Son Antonio Metro. Transit Auth., 469 U.S. 528
nancy, each becomcs'compelling.' "Roe, 410 U.S., at 162--63. The Court consid- (1985)).

1
 206 / The Philosophy o/ the Limit Notes I 207

99. lbid., pp. 3057-58. 11. Derrida, "Force of Law, .. p. 919. I wanl to note here that lhis is also a reference to
100. lbid., pp. 3056-57. the 1it1e of the conference, "Deconstruction and the Possibility of Justice," held al
101. Ibid., p. 3056. the Benjamin N. Cardozo School of Law in Oclober 1989. "Force ofLaw" was the
basis of Jacques Derrida's keynote address al the conference.
102. lbid.
12. Derrida, "Force ofLaw," p. 983.
103. Missouri Revised Statutes, I.205.l(IH2), 1.205.2 (1986).
13. lbid., p. 945.
i.

104. Webster v. Reproductive Health Services, 109 S. a. 3040 (1989) at 3049 .
14. Ibid., p. 991.
105. Ibid., p. 5027. In his dissenting opinion, Justice Blackmun voiced an eloquent
appeal for juslice for women: "I fear for the future. I fear for the liberty and equality 15. Ibid., p. 993.
of the millions of women who have lived and come of age in the 16 years since 16. Ibid., p. 943.
Roe was decided. I fear for the integrity of, and public esteem for, this Coun. I 17. LaCapra, "Violence, Iustice, and the Force of Law," p. 1067.
dissent." lbid., p. 3067 (Blackmun, J., dissenting).
18. See Stanley Fish, Doing What Comes Naturally: Change, Rhe!oric: amithe Pra;:ce
106. Roe v. Wade, 410 U.S 113, 156 (1973). ofTheory in Literary and Legal Studies (Durbam: Duke Uruvers1ty Press, 19 ).
107. Missouri Revised Statutes, 1.205.1(1)-(2) (1983).
19. Ibid., pp. 328-31.
108. Roe, 410 U.S. al 156-57. 20. In bis essay, "Work.ing on the Chain Gang," Fish notes:
109. City o/ Akron v. Akron Cemer for Reproductive Health, 462 U.S. 416 (1983). Paradoxically, one can be faithful to legal history only by revising il: by rede$cribingil
110. lbid., p. 458. in such a way as to accommodaleandrender manageablelhe issuesmsed by lhe presen.1.
This is a funclion of the laws conservatism, which will not allo~ a case to ':~
111. lbid. p. 461. unrelated to tbc pasl and so assures that the pasl, in lhe fono ofthe hist~ of ~s1~s,
112. For my discussion of lhe publiclprivate distinction, andan allernative theory by ' . . ...__d f .,,i..e to rewrile 11(wb1chts to
will be continually rewritten. In facl, 1t IS u"' uty O a J.._ be
which to address the abortion issue, see Drucilla Comell, Sexual Difference, say no more than that it is the duty of a judge to decide), aod thereforelhere no
Politics, and the Law (New York: Routledge, forthcoming). simply ''found" history in relation 10 which sorne olher history could be said to be
"invented."
Chapter 6 Fish, Doing What Comes Natural/y, p. 94 (~ "ued, emphasis in original).
1ootnote om1
21. Bowers v. Hardwick, 478 U.S. 186 (1986).
l. Seyla Benhabib, "Deconstruction, Justice and the Ethical Relationship," in the 22. In "Dennis Martinez and the Uses of Theory," Fish responds to Mark Kelman,
forthcoming Cardozo Law Review, vol. 13 (1991).
quoting:
2. Jacques Derrida, "force of Law: The 'Myslical Foundations of Authority, '" in . . . th t are noorationallyconstructingtbe legal
Cardozo Law Review, vol. 11, nos. 5-6 (1990). It is illuminating and d1sqmetmgto see we . ill ating because it

3. Dominick LaCapra, "Violence, Justice, and the Force of Law," Cardozo Law f;:,.
world over and ovcr again.... " In facl, it is neitber. lt IS not ~mm forallhough
doesnot throw any light on any act of constmction lhat is cummtlym
will tell you that 1hereis always one (or more) under you . -~~1_.. ____ f
cannot tell
Review, vol. 11, nos. 5--6 (1990). Your the<V\/
- J _., ietin becausem u ... o
4. Wa1ter Benjamn, ''The Critique of Violence," in Reflections: Essays, Aphorisms, You which one it is or how 10 identify 11. .
lt 1s not 'squ g . . . ...__
th f: lhat we are alwaysdomg 1t1sne,.....r
any altemative to interpretiveconstrucllon, . e .act . will alwaysoccur
Autobiographical Writings, ed. Peter Dementz, trans. EdmundJephcott (New York: here nor tbere lt jusi tells us that our detenmnat1onsof nght and"'.'18 . everyone
Harcourt Brace Jovanovich, 1978), p. 277. . d be bject to our scrutu1ybut SID.ce
within a sel of assumptions thar_co~I .ot su uence andJeav~ us exacdy where
5. Ibid., pp. 281-83. else is in the same boat, the pomt 1s w1thoutconseq ' . . --
JDterpreb.VC UH"
we always were, conunitted to whateverfacts andcertamtlesour
6. Bowers v. Hardwick, 478 U.S. 186 (1986).
make availab\e.
7. Benjamin, "The Critique of Violence," pp. Tl7-79; Derrida, "Force of Law," pp. Fish, Doing What Comes Naturally, p. 395 (footnote omt
'tted)

983-85, 989.
23. Bowers v. Hardwick, 478 U.S. 186 (1986) al 192-94.
8. Benjamin, "Tbe Critique of Violence," p. 277. 986
24. Hardwick v. Bowers, 760 F.2d 1202 (1985), rev'd 478 U.S. 186 (1 ).
9. Benhabib, "Deconstruction, Justice and tbe Ethical Relationship." Seyla Benbahih 189 N' th Amendmenl reads
misunderstands Benjamin here. 25. Bowers v. Hardwick, 478 U.S. 186 (1986) at The JD
1bc enumeratioo in the ConstilUtion,of certainrights, shall not be coostrued to deny or
JO. LaCapra, "Violence, Justice, and the Force of Law," p. 1077.
disparage others retainedby the people.
 . i1

208 I The Philosophy of the Limit Notes I 209

U.S. Const. amend. IX. 41. Derrida, ''Force of Law," p. 943.

The Due Process Clause of the Fourteenth Amendment provides that: 42. l..aCapra, "Violence, Justice, and the Force of l..aw," p. 1069.
No State shall make or enforce any law which shall abridge the privileges or immunities 43. Benjamin, 'Toe Critique of Violence," p. 286.
of citiz.ensof the United States; nor shall any Stale deprive any person of life, liherty, or
44. See LaCapra, "Violence, Justice, and the Force of Law," pp. 1071, 1077-78.
property, withoul due process of law.
45. Derrida, "Force ofLaw," p. 971.
U.S. Const. amend. XIV, el. l.
46. lbid., pp. 943-45.
26. Griswold v. Connecticut, 381 U.S. 479 (1965).
47. See Hardwick. v. Bowers, 760 F.2d 1202 (1985) at 1211-13.
27. Roe v. Wade, 410 U.S. 113 (1973).
48. See Derrida, "Force of Law," pp. 961-63.
' 28. Carey v. Popu/ation Services lnternational, 431 U.S. 678 (1977).
49. Oliver W. Holmes, ''The Path of the Law," in Harvard l.aw Review, vol lO, no. 8
1
29. Bowers v. Hardwick, 478 U.S. 186 (1986) at 190-91.
(1897).
30. The cases in this line include Skirmer v. Oklalwma, 316 U.S. 535 (1942), which
:1 50. Derrida, "Force of Law," p. %1.
struck clown a law requiring sterilization of those thrice convicted of certain felonies
. ,I involving "moral turpitude," on grounds which included that the punishment inter- 51. For a more thorough exploration of the appeal to natural and unnatural conceptions

i fered with the individuals' rights in procreation; Loving v. Virginia, 388 U.S. 1
(1%7), in which the Supreme Coun overturned a miscegenation law, in part because
of sexuality, see Drucilla Comell, "Gender, Sex and Equivalent Rights," in Feminists
Theorize the Political, ed. Judith Butler and Joan Scott (New York: Routledge,
it interfered with the right to marry; Griswold v. Connecticut, which affirmed the Chapman and Hall, 1991).
rigbts of married persons to receive information on the use of contraceptives as part 52. Derrida, "Force ofLaw," p. 971.
of their rights to conduct their family life free from state interference, Eisenstodt v. 53. Bowers v. Hardwick., 478 U.S. at 186, 187, 199 (1986).
Baird, 405 U.S. 438 (1972), which addressed the right of a person, regardless of
marital status, to make decisions as to her own procreative choices; Roe v. Wade, 54. Derrida, "Force ofLaw," p. 955.
providing for the rigbt of a woman to have an abortion; and Carey v. Population 55. LaCapra, "Violence, Justice, and the Force of Law," p. 1068.
Services lntemationo.J, 431 U.S. 678 (1977), in which the Court disallowed a law 56. Derrida, "Force ofLaw," p. 993.
prohibiting distribution of non-prescription contraceptives by any but pharmacists 57. Benjamin, ''The Critique of Violence," pp. 297-98; Derrida, "Force of Law," pp.
or distribution to minors under the age of 16.
1029-31.
31. Bowers v. Hardwick, 478 U.S. 186 (1986) at 191. 58. Benjamin, 'Toe Critique of Violence," p. 294.
32. Bowers v. Hardwick, 478 U .S. 186 (1986) at 192-94 (footnotes and citation omitted). 59. See LaCapra, "Violence, Justice, and the Forceof Law," pp. 1069-70.
33. lbid., p. 194. 60. See Benjamin, ''The Critique of Violence," pp. 286-87.
34. See Drucilla Comell, ..Institutionalization ofMeaning, Recollective Imagination and 61. Monique Wittig, Les Gurillires, trans. David Le Vay (Boston: Beacon Press,
the Potential for Transfonnative Legal Interpretation," Universiry of Pennsylvania
1975).
Law Revil!W, vol. 136, no. 4 (1988); and chapter 5, ..The Relevance ofTime to the
Relationship between the Philosopby of the Llmit and Systems Tbeory: The Ca11 IO 62. LaCapra, "Violence, Justice, and the Force of Law," p. 1070.
Judicial Responsibility," above.
35. SeeFish, "Wodting on the Chain Gain," in Doing What Comes Naturally, pp. 93- Concluslon
95.
36. Derrida, "Force of 1..aw," p. 997.
l. Derrida does not offer us a traditional sociological theory. This has been tumed
37. Bowers v. Hardwick, 478 U.S. 186 (1986) at 191. into criticism. See Thomas McCarthy, ''lbe Politics of the Ineffable: Derrida's
38. Bowers v. Hardwick., 478 U.S. (making reference to Justice Goldberg's concunence Deconstructionism," in Philosophical Forum, vol. 21, nos.1-2 (Fall~Winter 1989-
in Griswold v. Connecticut, 381 U.S.) 90). Cf. Peter Dews, Logics of DisinlegraJion (Loodon: Verso, 1987).
39. Buwers v. Hardwick, 478 U.S. 186 (1986) at 199 (Blackmun, J. dissenting; quoting 2. Jacques Derrida, Glas, trans. Jobo P. Leavey, Jr. and Richard Rand (Lincoln:
Olmsteod v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)). University of Nebraska Press, 1986).
40. Ibid. (quoting, Oliver W. Holmes, ''Tbe Palb ofthe Law," inHarvardl.Aw Review, 3. Luce Jrigaray, ''Questions to Enunanuel Levinas: On the Divinity of Love," trans.
vol 10, no. 8 (1897), p. 469). Mmg,ret Whilfonl.

1
 210 I The Philosophy of the Umit
Notes ! 21/
4. lbid.
trans. Cecile Lindsay, Jonathan Culler, and Eduardo Cadava (New York: Columbia
5. Drucilla Comell, "Gender, Sex and Equivalent Rights," in Feminists Theorize the University Press, 1986).
Political, ed. Judith Butler and loan Scott (New York: Routledge, Chapman ami
Hall, 1992). 24. Georg W. F. Hegel, Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford
University Press, 1977).
6. Sigmund Freud, Beyond the Pleasure Principie, ed. and trans. James Strachey (New
York: W. W. Norton and Co., 1961), pp. 8--11. 25. Thomas McCarthy, "The Politics of the Ineffable," in PhiWSophicoJ
Forum, vol.
21, nos. 1-2 (Fall-Winter 1989-90).
7. Eleanor Galenson and Hennann Roiphe, 'Toe hnpact of Early Sexual Discovery on
26. Jacques Derrida, "Du Droit a Philosophie" (Paris: Galile, 1990).
Mood, Defensive Organization, and Symbolization," in The Psychoanalytic Study
ofthe Child, vol. 26, no. 195 (1972). 27. Theodor W. Adorno, Negative Dialectics, trans. E. B. Ashton (New York: Toe
Continuum Publishing Co., 1973), p. 3.
8. Samuel Beckett, Happy Days, a play in two acts (New York: Grove Weidenfeld,
1961). 28. See, e.g. ThomasMcCarthy, ''The Politics of the Ineffable," p.158.

9. Deborah Tannen, You Just Don't Understarul (New York: Ballantine, 1991). 29. Jacques Denida, "Force of Law: The 'Mystical Foundation of Authority,"' in
Cardozo Law Review, vol. ll, nos. 5--6 (1990), pp. 960-73.
10. Charles Sanders Peirce, The Collected Papers ofCharles Sanders Peirce, vol. V,
30. Cf. chapter 4.
eds. Charles Hartshome and Paul Weiss (Cambridge, Mass.: Harvard University
Press, 1934), pp. 481-82. 31. Ibid.

11. Judith Butler, Gender Trouble: Feminism and the Subversion of ldentiry (New York: 32. John Rawls, ''The Domain of the Political and Overlapping Consensus," in New
Routledge, Chapman and Hall, 1990). York University Law Review, vol. 64, no. 2 (1989).
33. Cf. chapter 4.
12. See also chapters 4, 5, and 6.
34. lngeborg Bachmann,Malina (New York: Holmesand Meier Publishers, Inc., 1990).
13. lbid.
14. Jacques Denida, "Restitutions," in The Truth in Painting, trans. Geoffrey Benning-
ton and Ian Mcl..eod (Chicago: University of Chicago Press, 1987), pp. 255-382.
15. Peirce, Collected Papers, 587.
16. Friedrich Schiller, On the Aesthetic Education of Man, trans. Reginald Snell (New
York: Frederick Ungar, 1965).
17. Thomas Nagel, Equality anti Partiality (Prioceton: Princeton University Press, fortb-
coming).
18. Jrigaray' s sense of wondennent is close to Charles Peirce' s conception of m11~-
For my discussion of Peirce's concept of "musement," see Drucilla Cornell, "InstiPJ-
tionalization of Meaning, Recollective Imagination and the Potential for Transfonna-
tion," in Universityof PennsylvaniaLawReview, vol. 136, no. 4 (1988), PP 1135-
1229.
19. Teresa Brennan, "History after Lacan," in Equality and Society, vol. 9, no. 3, PP
277-313. This is Brennan's reading.
20. lbid.
21. Max Horkheimer and Theodor W. Adorno, Dialectic of Enlightenment, tnm.s. Jobn
Curnming (New York: Herder and Herder, 1972).
22. Richard Rorty, Contingency, lrony, aruJSolidmity (New York: Cambridge ~oiver:
sity Press, 1989). See also Rorty, Philosophy aruJthe Mirror of Nature (PrincefDP
PrincetonUniversity Press, 1980).
23. Jacques Derrida, Mimoires:for Pm de Man, ed. A vital Ronell andEduardoCadava.
Index

Abortion, 147-54, 2050.86, 206n.94 auratic gaze, 196n.62

Absolute, 65 collective unconscious, I92n.62
Activism, judicial, 161 conseellation,metaphor of, 9, 74
Adorno, Theodor messianism, 89, 198n.96
community, 37-38, 39, 49 mimesis,79-81, I96-97n.73
deconstruction of logic of identity, 56 philo,ophy of redemption, 59
Derrida and, 178-81 ragpicker compared to Joyce's ALP,
Bnlightenment and mythos/logos, 1O 75-76
Hegeland, 13-26,40,44-49,56 violence, justice, and law, 155-57,
Kant and, 30-35 163, 167, 168--69
mimesis, 79, 196-97n.73 Bcmasconi, Robert, 53, 84-85, l93-
negative diaJectics, 35-38 94n.25
philosophy of redcmption, 58-61 Bill of Rigbts, 165
postmodernism, 9, 11, 74 Blackmun, Justice, 150, 152, 153, 162-
Schopeobaucr and, 26-30 63, 166, 206n.94
Akron v. Akron Centerfor Repl'OmlCtive Blanchot, Maurice, 91-92, 99, 111
Health, 152
Bowen v. Hardwick, 159--67, 181
Allcgory, 11-12, 90
Brown v. Board of Education, 139, 140
Apartheid, 114
Aphorisms, 17 Carey v. Popukmon Services/nterna
Apoda, justice, 71, 118, 133-35, 165-66 tional, 160, 209n.30
AW'aticgaze, I96n.62 Castration,77-81, 86
Authority, 163-64 CAfjfonnier, 15-17, 79
Autonomy, 116 Christianity, fuodamcntalist, 7
Autopoiesis, 122-24, 130 Cixous, Hl~ne. 77
Clernent, Catherine, 77
Bachmann, lngebotg, 183, 186n.13
Communicative frecdom, 15-16, 17, 37,
de Beauvoir, Simone, 55, 87, 171 56-58, 60
Conununity, 37-38, 39--61, l89n.13,
Beckett, Samuel, 173
Being, 64--65, 67--68 t~91n.30
Benjamin, Walter Compassion, 34
Adorno on-totality, 21 Configuration,11-12

213
214 ! The Philosophy of the Limit
Conscience, 47
Consciousness, 24-26
ConsteJlation, metaphor, 9-10, 22-24,
74
Constitution
deconstructibility of law, 165
master rule of recognition, 200n.22
myths of justification for decision,
158-59
readibility of text, 160, 161
religious tolerance, 3-4
Consumer, 47
Cover, Robett
deconstruction and legal interpretation,
109
jurispathic aspect oflaw, IOJ--104,
112-13
law and nomos,111
meaning of legal senteoces, 94
reason and tbematization, 106-107
redemptive legal movements, 114
Critica) Legal Studies, 100-105
Dallmayr, Ftt.d R., 25
Dasein, 203n.35
Death, 48--49, 55-56, 72-75. Su also
Mourning
Deconstruction. See a/so Derrida,
Jacques; Specific topics
criticism of and jurisprudence, 8--9
ethics of as practice of reading, 81-83
ideal of community, 61
as justi.ce, 132
as phi]osopby of tbe lhnit, 1-2, 155,
156
Democracy, 49-50
Derrida, Jacques
Adorno and, 58--61
Benjamin and, 79
community, 37-38, 39-40
Critical Legal Studies, 1~103
death, mourning, and tbe Otber. 72-75
deconstructibility of law, 145
deconstructioo of logic of ideotity, 56
deccmstluctioo as practiceof reading,
81-83
deconsbuction of time, 117, 120, 128--
33, 135--37
dialogism, parody of and refusal of
castration, 77-81
dreaming, 192n.62
elhics and differeoce, 186o.13
Good, 94, 113--15
Hegel and, 44, 46, 55--56, 67, 170
Heideggerand, 67--68
historical periodization, IO
judicial memory, 148
jlstice as aporia, 116-17, 133--35
Kantianism aod justice, 119
Lacan and, 91, 170, 174-83
legal interprctation, significance for,
110-11
Levinas and, 53-55, 63, 68-72, 83--
85, 89--91, 109, 170, 1930.18,
194n.30, 195n.35
logic of paretgonality, 1
Luhmann aod, 121, 140
myth, exposure of, 10
otherne.u, nonviolent relationship to,
63---61
pbenomenological syrnmctJy, 171-72
as philosopber, 2, 194-950.32
postmodemily, rejection of, 1'17-108
responsibility, 149
Rousseau's political tbeory, 49-52,
146---47
Saying and tbe Said, 99
secoodnessand tbe Other, 1-2
secularization, iocomplete, 108-100
sociology, 210n.l
systems tbeory, 138-44
traosformative possibility througb itera-
tion, 110
violence, law, and justicc, 155-69
womanaod Chijfonnier, 15--71
writing and liberal analytic jurispru
dence, 7-8
Dialeccs, oegativc, 18-24, 35--36, 46
Dwoglsm. n--31
...............
Difference and diffmutce. Su aJsoCJlber
communicativefreedom, 56-57
Darida and, 58-59, 70, 110, 117
Inda! 2H lll
deconstructibility of law, 164
Hegel and community, 45, 46
legal theory of Denidean, 128-31 evolution and transtormatioo,144-46
lirnits of philosophy, 59 legal history, 2080.20
violence, law, and, justice, 158-59,
sexual, 11, 170-83
systems theory and gender, 139, 141 161
Fourtecnlh Amendment,208n.25
Ilreanng, 192n.62
Freedom, 28, 30-32, 33--35
Dualism, 69
Freud, Sigmund, 35, 56, 73, 172
Durkhcim,Etnile, 61
Dworkin,Ronald, 101
"""""' lfan><lc<n1, 35
Gender. See a/so Sexual difference;
Eenstadt v. Baird, 2080.30
Enlighterunent, 3, 10, 185n.3 women
feminist critique of Levnasand Derri
F.quality' 4--0 da's intervcation into Lacan, SS-89
Essence, 19-20 parodyof dialogismand m'usal of cas--
Ethics
Adorno aod negative dialectics, 14-24, tntion, 77-81
systemstheocy, 138
36-38
Adorno, Schopenbauer, and reinterpre- Gcnealogy,149-SO
Gnet, Jean, 77
tation of pity, 26-30
Georgia, 159, 160, 165
deconstruction as practice of reading,
81-83 Good
Denidem>
........... of bo-
Derrida ami difference, 186n. 13
rizon, 113--15
Derrida's interpretation of Levinas, (<mlni,m ,od Critica1Leg,I Studies,
83--85 104-105
Hegel on war, death, and inclividuality,
Hegel 00 Right, Law, and, 92-93
49 Levw' COD<CJ'lioo ""' legal .,..,....,
incomplete seculariz.ation, JOS-109
irrationalists and Critical Legal Stud
93--94, 140
COD<CJ'lioo
postmodem of, 102-103
ies, 102 Oll Justice, 3-4
Rawls and ffal,ennas
juridical significanceof postmodem m-- Right md Jesal._...... 95-100
bellion againstmet.apbysics, 17~3 Griswoldv. Co,urecticvt,148, 150, 160,
l.acan's gendet biet;m:by, 86
209n.30
Levinas and relationship t,etweeo Be-
ing and NothingnesS, 64- 72
llabernW,J,gen
projcct of philosophy of tbe Jimit, 62- Fruigbtenma and modemity, 185n.3
63 ......,.. .,...,..,....., IO
Ethnocentrism.51 justice as bori7.onof ideal, 134
Evolution, 144-47 Kantmd lkgel ... Right .... Good, 92
lcgifumtionoflegal system, 119, 157-
Fcminist criticism, 85-89, 103-105
Femini.stliterature, 9 58 . .
LnhmamJand n:,construCb.ve sctcnee,
Festival, 50 127
Ftcbte, Johann Gottlieb, 41, 43 mytJ,o,mdlogos, 3, 7
Finitude, SS-56. Su abo IDlrity
First AmeudnM'lDl,
Pub,5-
3-4
tcdemptive criticism, 192n.6
socill lbeor)' of monl subject, 176-77
Han, H. L. A., 101
accouot of critique, 120
 216 I The Philosophy of the Limit
Hegel, Georg W. F.
Adorno and, 13, 14-16, 18-26, 32,
33--35, 37, 40
community, 40-49, 57, 112-13,
189n.13
death, war, and individuality, 48-49
Derrida and, 52-54, 55-56, 63, 69,
170
difference and Absolute Knowledge,
58
ethics and rebellion against, 62
Gadamer, Rorty, ami pragmatism, 35
gender hierarchy, 78
Good, 92-93, 95-96, 104
Heidegger and, J90n.I6
infinite ami fi.nite, 193n.20
lega1 rules and ethical meaning, 99-
100
Levinas ami, 64--72, 83--84, 194n.25
~mity and indentured servitude,
myth of empirical natural Jaw, l 89-
90n.13
neo-pragmatism, 199n.8
phenomenological symmetry, 171
philosophy of history, 74
Woman, place of in system, 77
Heidegger, Martn
Hegel and, 45, 67--68, 190n.16
Dasein, 203n.35
Derrida and, 55, 84-85, 180
Lcvinas and, 55, 180
mediatedsynthesis of reJation, 189n.3
privileging of presett in Western meta-
physics, 128
Hierarchy, 50-51. See abo Gender
History
Adomo's critique ofHegel, 21, 26
Hegel's philosophy of, 74
l..evinasand theological cooceptioo,
194n.25
perioclization,7, 10
teleological notion of development, 2-
3 H,gel ..... 41-42, 92, 96
time and systems theof}', 126--27
Holmes, Justice Oliver Wendell, 162-63,
165
Homosexua1ity, 5, 159-62, 167 Luhmaon and, 132-33, 141
Horkheimer, Max, 178-81 Lacan, Iacques
Husserl, Edmund, 85 Derrida and, 85-89, 91, 138, 170
gender hierarchy, 78
Idealism, 2, 181 Levinas and, 85-89, 91
Identity, 64, 172. See also Nonidentity sexual difference, 11, 172-83
Ideological critique, 170, 172, 174-75 l.aCapm, Dominick, 155-57, 158, 162,
lly , 68, 69 163, 167
Imperialism, 18, 21 Language, 51-52, 86
Individualism, 28, 33 Law. See also Legal interpretation; Legal
Individuality, 44-45, 46-48, 48-49, 145, systems
173 evolution and transfonnation, 144-47
1nfinity, 66--70, 193n.20 gender hierarchy, 177-78
Infonnation processing, 123 Hegel and, 47, 92-93
Intersubjectivity, 36 inevitability and necessity, 105-107
lrigaray, Luce Lacan and gender identity, 173--74
feminist criticism of Levinas, 86-87, myth of empirical natural, 189-90o.13
88. 171, 179 role of practical reason, 107
irreducibility of sexes, 177 time and concept of, 131-33
sense of wonderment, 211n.18 violence and justice, 155-69
lteration, 110, 126-27 Legal interpretation. See also Law
answer to Robert Cover, 112-13
Joyce, James, 75-76 Derrida and, 91, 109, 110-11, 113-
Judgment and judging, 120-21, 133--34, 15, ]46-47
147-54 feminism and Critical Legal Studies,
Justice 103--105
as aporia, 118, 133-35, 165-66 Good and Right, 95-100
dccoostruction as, 132 inevitability and nccessity of Jaw, 105-
deconstruction of law, 145
107
Kanrianisrn, 119, 132-33 l.acan and, 91
lcgitimacy, 118-19
l..evinasand, 91, 109
l.evinas and, 117, 137
postmodernism and Critica! Legal
Rawls aod HabermasOD Good, 3-4 Studics, 100-103
systems of positive Iaw, 2
secularization, incomplete, 108-109
-thcmy.143 Legal systems. See also Law
violence and law, 155-69 establishment and decoo.struction, 1
horizon of good within nomos,
Kafka, Franz, 94
93--94
Kant, EmmanueI
postmodern rebellion agaiost mctapbys-
Adorno and, 13--14, ~35, 37
ics, 170-83
Derrida and, 132-33 Roe v. Wade andjudging, 147-54
Goodaoolgbt,4 systems tbeory and time, 116-22,
Habennasand Lyotanl oa )lstice, 134
124-31
timcandcooceptoflaw, 131-33
juma, .... pbilo,ophy of ... fumt,
vioJence, law, andjustice, tSS-69
119-20
Legitimacy, 118-19
Levimsaoo, 99
Levin, Cba,les, -
L.
.
lndex I 217
Levinas, Emmanuel
Derrida and, 53-55, 63, 68--72, 83-
85, 89-90, 109, 135-37, 142, 170,
174, 193n.18, 194o.30
on end of philosophy, 195n.35
ethical philosophy of alterity, 2, 105,
143, 171
cdrical relation, 62, 91
evolution and tmnsformation, 146
feminist critique, 85-89
Good, 92, 93, 94, 96-100, 117, 140
Hegel and, 64--72, 194n.27
history, 10, 194o.25
irrationalists and ethical de-lirnitation
of ontology, 102
Kantian coneptionof self, 179
Jaw, inevitability of, 105
Other and othemcss, 177
postmodemity, rejection of, 107-108
proximity, 64, 192-93n.7
rights and justice, 167
secularization, incomplete, 108-109
thematiz.atioo., 106, 107
Uvi-Strauss, Claude, 8, 51
Libemlism, 6, 186n.13
Literature, 9, !95n.32
Logic. 64
Logos, 3, 10
Loving v. Virginia, 208--209n.30
Luhmann,Niklas
autopoietic closure, 202-203n.23
systems theory, 116-33, 136-37, 138--
44, 145, 170
Lyotard, Jean Francois, 119-20, 134
McCarthy, Thomas, 181
Maclntyre, Alasdair, 61
MacKinnoo,catharine. 148
de Man, Paul, 71, 72, 198n.96
Marcuse. Hcrbert, 34
Marx, Karl, 32, 33
Mastcr-slave dialectic, 14
Materialism, 26-27, 48
Materiality, 67- 70
.......,., judicial. 148
Messianisrn, 71, 89, 198n.96
Millcr-, J. Hillis, 81-82
 218 I The Philosophy of the Limit
Mimesis, 23, 79-81, 196-97n.73
Modemity
analytic jurisprudence, 7
Derrida and Levinas, 108
Habennas on En1ightenment, 185n.3
Hegel and community, 44
Morality, 13, 17, 30-35, 99
Mother, 76, 77, 88
Mouming, 72-81. See olso Death
Mythos, 3, 6, 10
Myths, 158-59
Nagel, Thomas, 4-7, 8
Natural history, 26-27
Negativity, 19, 20
Neo-Kantianism, 92, 124
Neo-pragmatism, 199n.8
Neville, Robert, 20-21
New communitarians, 6
Nietzsche, Friedrich Wilhelm
action ata distance, 64, 193n.8
Derrida and, 84, 88
gender identity, 138
self-righteousness, 90
violence of philosophical tradition, 89
Will and subject, 31
Nihilism, 70-72, 198n.96
Ninth Amendment, 165-66, 208n.25
Nonidentity, 17, 18-22, 25-26
Observer, 122, 144
O'Connor, Sandra Day, 152, 153
Ontology, 64, 97
Other and otherness. See olso Difference
and diffrance
Adorno on Hegel, 21-22
death, 56, 72-75
deconstruction, 82
Derrida and, 2, 64, 72-75, 77-81, 83-
85, 180
Hegeland,43--44, 66
Jrigaray and, 87, 88
nonviolent relationship to, 63--64
Habermas and, 176
justice, 135, 137
law, inevitability of, 105
Index I 219
Levinas and, 2, 53, 54, 64, 66, 67--68,
Redemptive criticism, 192n.6 Taxation, 42-43
69, 88, 98-99, 109, 180
Reflection, philosophy of, 41-49 Thematization, 106, 107
phenomenological symmetry, 55
Refonnatioo, 3 Theneuissen, Michael, 15
Saying and the Said, 99
Rehnquist, Justice, 150-52, 153 Time, 116-17, 122-33, 135-37, 143
secondness, 1-2
Religion, 3-4. See also Myth; Mythos Tolerance, 3-4, 6-7
systems theory, 143
Representation, 68 Totality, 20-21, 66, 69
women and mourning, 7~77
Repression, 46 Transceodeoce, 194n.25
Reproductive freedom, 208-2090.30. See Transfonnatioo, 144--47
Partiality, 4-6
olso Abortion Transformative possibility, 110, 142
Patchwork, 74
Responsibility, 149-50 Translation, 113-14
Patriarchy, 169, 190n.21
Revolution, 168-69 Truth, 65
Penal Colony, 94
lught
Penis, 172-73
Phallogoceotrism, 77 de-ontological theory of, 6 Utopianism, 8
Good and legal interpretation, 95-96
Phallus, 172- 73, 175
Hegel on Good and l.a.w, 92-93 Violence
Phenomenological asymmetry, 54, 55,
partiality and equality, 4-6 against women, 139
85-89, 91, 171
Roe v. Wode, 147-54, 160, 181 Derrida on communalism, 49-52, 60
Pierce, Charles, 1, 37, 178, 2lln.18
Rorty, Richard, 35 idealism, 181
Pity, 26-30
Rose, Gillian, 41, 42 law and justice, 155-69
Poltica! pbilosophy, 66
Rousseau, Jean-Jacques, 49-53, 56
Positivism, legal, 10!, 111, 118, 14~
46, 158 Saying, 70, 89, 99 Wagner, Richard, 29-30
Positivity, 22 Schiller, Friedrich, 176 War, 48-49, 97
Postmodernism Schopenhauer, Arthur, 16, 26-30, 34 Warren, Justice, 139
community, 39--61 Secondness, 1-2 Webster v. Reproductive Heolth Services,
Critica! Legal Studies, 100-103 Secularization, 107-109 150-52
definition, debate on, 2-3, 7-12 Segregation, 139 White, Justice, 159-62, 164, 165, 167
Ocrrida's and Levinas' rejection of, Sexual difference, 170-83. See olso Gen- Will, 27-29, 31-32
107-108 der; Women Wittgenstein, Ludwig, 140
Hegel and Good, Right, and Law, 93 Sexuality, 88, 167, 175. See also Homo- Wittig, Monique, 169
Postontology, 130 sexuality Women. See a/so Gender; Sexual dif-
Precedents, judicial, 148--49 Signifiance, 86 forenoe
Principies, 106 Skinner v. Oklahomo, 2080.30 Blackmun on justice for, 206o.105
Privacy, right of, 148, 160, 161 Social criticism, 145 deconstrucibility of law, 151
Property, privare, 42-43 Sociology, 138, 181, 206n.l definition of objects, 185n.17
Proximity, 192-930. 7 South Africa, 114 Luhmann on observer as, 122
Public reason, - 7 Speech, 51 Nietzsche on action at a distance,
Subject 1930.8
Rawls, John, 3-4, 8, 182, 189n.13 Adomo's critique of Kant, 13-14 pbenomenological $fmmetry, 54, 55,
Reading, sr-83 Hegel on subject and community, 44, 91
Realism, 18-87n.8 189n.13 prescnt social and legal status, 144
Reason, 21, 107 Lacan and gender hierarchy, 173 n:latioo to figure of tbe Chiffonir, 15-
Reasonableness, 5--6 Subjectivity, 18, 30 11
Recognition, 200n.22 Superego, 30-31 violence against, 139
Recoociliation, 15, 16 Supreme Court, 147-54 Writing, 7-8, 51
Recursivity, 121, 124, 130-31 Systems tbeory, 116-22, 124-31, 138-
Redempeion, 58-61, 114 44, 145 Young, Iris, 39
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