University of Utah

Between Justice and Legality: Derrida on Decision

Author(s): William W. Sokoloff
Source: Political Research Quarterly, Vol. 58, No. 2 (Jun., 2005), pp. 341-352
Published by: Sage Publications, Inc. on behalf of the University of Utah
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 Between Justice and Legality:
Derrida on Decision
WILLIAM W SOKOLOFF, UNIVERSITY
OF SOUTHERNCALIFORNIA;
UNIVERSITY IRVINE
OF CALIFORNIA,

Recentcritiquesof JacquesDerridahave misunderstoodhis contributionto politicaltheoryand dismisshis

work as apoliticalor nihilistic.In contrastto this trend,I arguethat Derrida'sconceptof decisionis the most
explicitlypoliticalmomentof deconstruction.Throughreadingsof "Forceof Law"and Politicsof Friendship as
well as some of his otherwritings,I arguethatDerrida's of decisionexpandsthe way pol-
re-conceptualization
itics is conceivedand enablesa robustcritiqueof Rawls'sconsensusliberalism.Decisionenergizescitizenship
throughstrategicinterfacesbetweenjustice and law and foregroundsrespectfor othersin orderto makepol-
itics more ethical and lively.Derridadoes not paralyzepoliticalaction by taking the ground away at the
momentof actionbut makespoliticalactorsmorereflectiveand responsibleby shakingup the stabilityof all
politicalfoundations.Not only have criticsof Derridaoverstatedtheircasebut liberalscould learnsomething
fromhis writingson politics.

In this essay I summarizeand offer an interpretationof DECONSTRUCTION AND POLITICS

Jacques Derrida'sconcept of decision (Derrida 1990:

947, 961-967; 1992: 80-81; 1993a: 15, 17; 1995: 53-
81; 1996: 84; 1997: 67-69). More so than any other con-
cept, decision revealshow deconstructionengagesthe ques-
tion of politics in ways that have been overlooked by his
critics and advocates.Analyzingdecision in Derrida'swork
also promises to shed new light on the problem of political
judgment since decision and judgment imply each other.
The elucidationof decision is thereforerelevantfor scholars
explicitlyengagedwith Derrida'swritingson politics as well
as for those grapplingwith the question of judgment inso-
far as decision clarifiesthe conditions under which politics
and judgments are possible.
In my reading, decision is Derrida'sattempt to redefine
the political core of politics in order to produce a reflective
and vibrant liberalism based on the interaction between
legality and justice conceived as respect for others. As
opposed to the view that he rejectslaw and suspends action
in an aporetic conception of justice, decision creates an
interface between justice and legality in order to energize
citizenship and make political action responsible. Hence, I
contest the accusation made by Derrida'scritics that his
writings on politics are irresponsible, but I acknowledge
that decision may be at odds with currentmodes of politi-
cal practice.Even in the face of its unconventionality,liber-
als could learn somethingabout politics fromDerrida'sdeci-
sion. Specifically,the interactionbetweenjustice and law in
his politicalwritings enables a critiqueof Rawls'sconsensus
liberalismand points to a new ethical-politicalhorizon that
should be taken seriously.
NOTE: I would like to thank SubrataK. Mitra and three reviewers for
their comments on earlierdraftsof this manuscript.
PoliticalResearchQuarterly,Vol. 58, No. 2 (June2005): pp. 341-352
Critiquesof Derrida'swork are plentiful. Turningpolitics
into nothing, immobilizing political action and judgment,
and rendering the traditionalvocabularyof politics unus-
able are only some of the accusations directed against his
enormous oeuvre.He generatesa great deal of nervousness
in the academy about the impact of his writings on ethics
and politics and has become a sort of post-structuralistAnti-
Christ, interpretedas nihilistic, relativistic,and potentially
authoritarian.It becomes immediately clear while reading
his texts on political themes that Derridadoes not approach
politics in a conventionalway In terms of his methodology,
he suspends the traditionalmeanings of fundamentalpolit-
ical categoriesand engages in an unrelentingphilosophical
questioningthat forcesthem to their conceptuallimit result-
ing in aporia, impossibility,and paradox.He even suggests
that questioning politics may not be political:
The question of the political, for this question is not nec-
essary,nor in advance, political. It is perhaps not yet or
no longer thoroughly political, once the political is
defined with the featuresof a dominant tradition. (Der-
rida 1997: 28.)
The fact that deconstruction took inspiration from the
writings of MartinHeideggerwas always a source of con-
tention given his brief collaborationwith the Nazi regime
and his subsequentsilence about his involvement. Compli-
catingthis matterfurther,"L'affaire de Man,"or the revelation
in 1987 that Derrida'sfriend and fellow practitioner of
deconstructionPaul de Man (1919-1983) wrote collabora-
tive war-timearticlesbetween 1940 and 1942 in the Belgium
newspaperLeSoirsupportedthe suspicion that deconstruc-
tion, despite its persistent claim that it was on the side of
progressivepolitical ends, was a reactiveideology willing to
lend a hand to political evil. Deconstructionquickly made
academicheadlinesas an opportunisticcriminalideology.

341
342
342
When specifically confronted with the question of the
political potential of deconstruction in an interview with
RichardKearneyin the 1980s, Derridaadmits that he finds
himself in a position of "permanentuneasiness"(1984: 120)
since a gap separatesdeconstructionfromhis own modes of
conventionalpolitical participation.Over the last 20 years,
he has taken up explicitlypolitical themes in an astounding
number of publications. Critics continue to assert that
deconstruction suffers from a political and ethical deficit
since it has nothing programmaticto offer.Other commen-
tatorsinsist that deconstructionis both ethical and political
but they are ultimatelyunable to say preciselyhow in a con-
vincing way (Bennington2000; Beardsworth1996; Howells
1988; Critchley 1992, 1999).1 Despite increasing contro-
versy, Derridastill walks a tight rope between foundation-
ism and anti-foundationism.The charges that his work is
apolitical, nihilistic, or even worse continue to be leveled
(Lilla2001; Berman1990; Pickstock 1998; Fraser1989).2
DECISION
The concept of decision is Derrida'sresponseto his critics
and it occupies a prominentplace in his corpus. As I have
suggested,it is the key to understandinghis approachto pol-
itics and signalshis attemptto come to termswith the prob-
lem of politicaljudgment. I shall demonstratethat Derrida's
decision makes politics ethical and lively because it widens
the field of politics and opens it to the possibilityof less vio-
lent articulationsbut without puttingan end to contestation.
In his re-significationof decision, he illuminatesthe limits of
the legal orderby takingdecision outside the domain of use
in orderto forgea new horizon of politicalpossibility.
Derrida'sdiscussion of decision proceeds through nega-
tive presentation.He builds decision through a critique of
the conventional conceptualizationof decision. Decisions
are generally viewed as the result of rational calculation
(Rawls 1993: 212). Informationis analyzedand options are
formulated in accordance with the ultimate standard of
A small number of political theorists including Honig (1993) and
McCormick(2001) have writtenpositivelyabout Derrida'swork. In spite
of the growing interestin his political texts, Derridaremainsa marginal
figure for the field of political theory.
2 Berman(1990: 6) states: "Therehas been nowhere a positive contribu-
tion by deconstruction to the radical vision." Berman'scertaintyabout
what counts as the radicalvision leads him to condemn Derrida'swork
on politics. In order to understand Derrida'swork, we have to rethink
fundamentalassumptionsabout politics. Until Bermanis preparedto do
that, he is not likely to move beyond his hard-linestance againstDerrida.
Pickstock(1998: 178) claims that Derrida'swork on politics shows signs
of a "reactivecompliancewith political authority"Given Derrida'sclaim
that all authority is unable to ground itself, his radical critique of the
status quo, and his orientationto the future,Pickstock'sclaim is inaccu-
rate.Fraser(1989) claimsthat Derrida'srelianceon transcendentalthink-
ing results in a political deficit when it comes to telling us which prac-
tices and institutions are morally defensible. For Fraser,he is unable to
tell us what type of attitudewe should adopt to the status quo. As I shall
demonstrate,Derrida'swork provides us with the standardof lesser vio-
lence to assess actual institutions and he promotes a critical attitude
towardthe status quo.
POLITICAL
RESEARCH
QUARTERLY
rationality:cost-benefitanalysis.Once the costs and benefits
have been determined,a conclusion, or decision, is reached
based on the calculation of overall utility. In the legal
sphere,judges decide;they apply the law to particularcases.
Derrida'stake on decision departs from these approaches.
He questions the traditionalconcept of decision based on a
self-conscious subject who calculatesand then decides:
We ask ourselveswhat a decision is and whodecides. And
if a decision is active, free, conscious and willful, sover-
eign. What would happen if we kept this word and this
concept, but changed these last determinations?(Derrida
1997: xi.)
For Derrida,a decision has not been made when judges
applythe law to a particularcase. In orderfor a decisionto be
a decision, judges must do two incompatiblethings at the
same time. Theymust enforcethe law in a non-arbitraryway:
"Thelaw appliesequallyto all."And yet, judges must respect
the ways in which each case is different:"Eachcase is other,
each decision is differentand requiresan absolutelyunique
interpretation,which no existing,coded rule can or ought to
guaranteeabsolutely"(Derrida1990: 961). Hence, in order
for a decision to be possible, it must be impossible;judges
cannotknow in advancewhat to decide. If they alreadyknew
what to decide in particularsituations, then they are not
making a decision. The conditions for a decision must pre-
vent a decisionfrombeing easy or fast.Theymust breakfrom
the past and they cannot be based entirely on reason or
knowledge.3 Quoting Kierkegaard, Derrida claims "the
moment of decisionis madness"(1990: 968). The incompat-
ible commands in the moment of decision test the limits of
the legal order because they demand that decision be con-
ceived as somethingmore than the applicationof the law.
MYSTICALFOUNDATIONOF AUTHORITY
Exposing the limits of the legal order was clearly one of
the over-archinggoals of Derrida'sdefense of deconstruction
and commentaryon a text by WalterBenjaminin "Forceof
Law:The 'MysticalFoundation of Authority,"'presented at
the conference "Deconstructionand the Possibility of Jus-
tice"in 1989 at the BenjaminN. CardozoSchool of Law in
New York.His defense takes the form of a response to the
charge that deconstruction destroys the possibility of law
and justice. It is not surprisingthat his most sustained dis-
cussion of decision occurs in this text because it is generally
understood as a legal category concerning the universality
of law in relationto the particularityof a case.
In "Forceof Law,"Derridadiscusses foundations,author-
ity, the mystical,law,justice, aporia,and decision. Not only
does he engagepolitics at the most simple and decisive loca-
tion, i.e., foundations,but he rethinksthe meaningof politics
through an examination of an expression Pascal inherited
3 Like Kant (1997), Derrida delimits knowledge to create a space for
practice.
BETWEEN AND LEGALITY:
JUSTICEAND
BETWEEN JUSTICE LEGALITY: ON DECISION
DERRIDAON
DERRIDA DECISION
from Montaigne:"Mysticalfoundationof authority."A close
reading of this statement, he claims, produces a "modern
criticalphilosophy"(1990: 941) and a conception of justice
both criticaland affirmativethat serves as a non-totalitarian,
non-reductive, and practicalmode of valuation. Here, jus-
tice comes into view as a criticaltemporalpractice.It is crit-
ical because it holds political action within specific limits;
temporal because sensitivity to the specificity of each
moment is paramount; practical because freedom is its
essence. In order for justice to be enacted, however, deci-
sions must be made.
Decision emergesas one of the most importantproblems
in "Forceof Law."How are we to conceive the ground for
decision? No one would accept the validity of a decision if
it could not be justified. Hence, decisions must have a
ground because this makes them legitimate. Conceptualiz-
ing the ground of decision, however, can only go so far
because all ground is arbitrary:"Mysticalfoundation of
authority."4The ultimate ground of the legal order is
ungrounded.A paradoxhaunts all founding moments. The
act of founding is itself unfounded. They are logical impos-
sibilities;something akin to a woman giving birth to herself.
For Derrida,there is nothing that could serve as an incon-
testable point of support for foundations.Appeals to natu-
ral law, self-evidenttruths, or God attemptto eliminatethis
probleminsofaras they attempt to silence discussion about
the foundation.5They are invoked in order to deny the
inescapablyarbitraryessence of foundations.6
Derridadoes not constructa new myth that conceals the
foundation but ventilates the paradox latent in all founda-
tions. For him, foundations institute groundless grounds
and disqualifyany critique of founding violence since they
do not recognizepre-existinglaw.7The moment of founding
4 For a differentviewpoint, see Rawls (1993: 431): "Politicalauthorityis
not mysterious."
5 See Rousseau (1988: 162-3): "Discoveringthe rules of the society best
suited to nations would requirea superiorintelligencethat beheld all the
passions of men without feeling any of them; who had no affinitywith
our nature,yet knew it throughand through;whose happinesswas inde-
pendent of us, yet who neverthelesswas willing to concern itself with
ours; finally,who, in the passage of time, procures for himself a distant
glory,being able to laborin one age and find enjoymentin another.Gods
would be needed to give men laws."Derrida(1986: 12) identifiesa sim-
ilar problemin referenceto the "Declarationof Independence":"Forthis
Declaration to have a meaning and an effect, there must be a last
instance. God is the name, the best one, for this last instance and this
ultimate signature."Honig (1993: 95) persuasivelyelucidates Derrida's
essay on the "Declarationof Independence"and fruitfully brings his
work into dialogue with HannahArendt:"WhatJacques Derridasays of
languageor writing holds well for Arendt'saccount of political action."I
build on Honig' work but, in contrastto her, I show that Derridahas an
originaland provocativeaccount of political action of his own.
6 Plato's(1992: 90-93) multiple lies at the foundationof his ideal state are
the paradigmaticcase.
7 Since all foundations are
ungrounded, Derrida clearly eliminates the
capacity to differentiate between different foundations. However,
regimes open to the permanenttransformationof their foundationsare
superior to ones that treat their foundation as a sacred absolute and
remove it from public debate. The willingness to interrogatepolitical
343
343
is "neitherlegal nor illegal"(1990: 927) and this paradoxis
the aporetic origin of all authority Since foundational
authoritygives birth to law,which is itself ungrounded,law
is a lesser or greater form of violence. Legality,it seems,
cannot escape contaminationwith illegality;it is impossible
for authority not to be arbitrary.As Cornell (1992: 167)
puts it, if legal orders erase their mystical foundation of
authority and masquerade as justice, they are "rotten."
Regimes that conceal their origin in violence eliminate the
basis for their own contestation.
It would be easy, but ultimately incorrect, to conclude
that opening foundations to contestation in the moment of
decision destroysauthorityand leads to anarchy.Perhapsit
would be safer for regimes to deny that their origin and
authority is paradoxical. It might save everyone a lot of
trouble. But it would not be just. That authority lacks
ground does not lead to chaos but is, in the words of Der-
rida (1990: 943-45), "a stroke of luck for politics, for all
historical progress." The deconstruction of the aporetic
structureof law is enacted in accordancewith justice.8Jus-
tice is a response to the call of the other. And yet, decon-
struction is indebted to the law it deconstructs:"It is this
deconstructible structure of law . . . that also insures the
possibility of deconstruction"(Derrida1990: 945). Derrida
does not fulfill this debt by bending his knee to law and
authority.Rather,he exposes the violence lurking in politi-
cal foundations and provokes a permanent destabilization.
But Derrida does not simply want to destabilize founda-
tions. He goes beyond the claim that everything is simply
contingent. Instead, he argues that this instability opens
regimes to the possibility of practicing law in less violent
ways. Deconstructive destabilizationis a chance for posi-
tive change, and yet, a chance is also a risk: "Withoutthe
possibility of radicalevil, of perjury,and of absolute crime,
there is no responsibility,no freedom, no decision" (Der-
rida 1997: 219).9
Embracingrisk in the realm of politics is not equivalent
to nihilism. In fact, Derridainterrogatesfoundationsin the
name of political flexibilitythat operateswithin strict ethi-
cal limits. The first moment of political flexibility results
from a political order'sconsciousness of its origin in vio-
lence. The second comes from its effort to minimize its
foundationskeeps the political field open to the possibility of lesser vio-
lence and more just articulations.For Derrida,what mattersis not that
the original foundation was ungrounded but that the practices that
follow the institutingmoment foregroundthis originalindeterminacyin
order to encouragecontinual political transformation.
8 Derrida conceives justice as incalculable, impossible, and infinite
whereas law is a matter of calculation,rule, and norm. As we shall see,
Derridainsists on the need for a relationbetween justice and law, even
if justice is never reducible to law.
9 Rawls (1993: 157) is clearly more conservative than Derrida on the
question of foundations.Rawlswants to remove from the public agenda
"themost divisive issues"as well as the basic principlesof justice as fair-
ness because it is too risky;it poses a threatto the stabilitythat he seeks.
See Alejandro(1988: 11) for a critiqueof the closure in the foundations
of justice as fairness.
344
344
reliance on violence in everyday practices.10Derrida envi-
sions a political order motivated by a conception of justice
over and beyond law.Such a regimewould striveto practice
law in ways that areless arbitrary.Lawis less arbitrarywhen
it acknowledgesthe contingency of its own commands. For
Derrida,justice is the condition of possibility for the ulti-
mate minimizationof the violence in law that repeatsitself
in the enforcementof law. First and foremost, decision is a
question of justice.
Derridabegins his discussion of justice by imaginingthe
possibilityof non-appropriativerelationswith the other.1 In
contrastto the claim that deconstructiondestroysall ethical
standards, responsibility to the other sets deconstruction
into motion. For Derrida(1984: 118), "deconstructionis a
positive response to an alteritywhich necessarilycalls, sum-
mons or motivates it. Deconstructionis thereforea voca-
tion-a responseto a call."Responsibilityto the other,how-
ever, cannot be completely fulfilled. That we cannot know
whether our actions arejust is preciselywhat fuels the con-
tinualaspirationforjustice. The factthatjustice cannotbe an
objectof cognitionis what preventsthe forcedidentityof law
with justice. Collapsingjustice and law forcescitizensto sur-
rendertheircriticalfacultiesand identifywith the given. Dis-
sent, then, is a necessary pre-requisite of responsibility
Indeed, Derridaunderminesthe assumptionthat the present
ordercould ever be just.'2 Set into motion by justice, draw-
ing attentionto the mysticalfoundationof authorityis there-
fore an act of politicalresistancethat affirmsa conception of
justice over and beyond law and manifestsitself as political
critique.Lawis presentin rules, regulations,statutes,prece-
dents, legal decisions, and majorityopinions. But justice is
never present;it is alwaysto come. In order to reinforcethe
factthatjustice is absentfromall legal orders,Derrida(1990:
935) refersto it with indirectand negativestatements:"One
cannot speak directlyabout justice, thematizeor objectivize
justice, say 'this is just' and even less 'I am just,' without
immediatelybetrayingjustice, if not law (droit)."'3His con-
ception of justice takes an aporeticform because aporiasare
never present.Aporiasalso signal an absence of rules, defin-
itive criteria, or grounds. They are moments of crisis:
"Aporeticexperiencesare the experiences,as improbableas
they are necessary,of justice, that is to say of moments in
which the decision betweenjust and unjust is never insured
by a rule"(947). Aporetic experiences, or crisis situations,
10
Benjamin(1996: 244) claims that "whenthe consciousness of the latent
presenceof violence in a legal institutiondisappears,the institutionfalls
into decay."
Rubenstein (2002: 77) suggests that Derridarejects community This
claim overlooks Derridas interest in friendship and his conception of
justice as relational.
12 Derrida (1994: 175) claims, "Presentexistence or essence has never
been the condition, object, or the thing of justice."A similar notion is
at work with Derrida'sidea of "democracyto come" (1997: 306).
Democracyis never presentbut something towardwhich we must per-
petually strive.
13
Plato (1992: 182) faces a similar problem in relation to the good. The
good is negative. It is beyond and superiorto being in rank and power.
RESEARCH
POLITICAL QUARTERLY
QUARTERLY
call for decisions. Decision, in turn, provokes the crisis that
engendereddecision. Since it lacks a rule for guidance,deci-
sion exacerbatesthe experience of insecurity.Anxiety,then,
mediates the duality between crisis and decision. Decision,
finally,is the place where the incalculableand the calculable
pass througheach other: "Incalculablejustice requiresus to
calculate"(971).
DECISION AND INDECISION
The network between decision, crisis, and anxiety does
not signal a break with legality Even though decision must
free itself from legality,this does not mean that "everything
is permitted."ContraLilla(2001: 174, 184, 190), Derridais
not advocatingdecisionism.l4He does argue that the basis
for making a decision has become problematic.That deci-
sionmakinghas become problematic,however,is not equiv-
alent to subjectivism.In fact, Derrida (1997: 83-171) dis-
tances himself from this type of decisionmaking in his
critique of Carl Schmitt. Derrida claims that one must
decide without the help of rules but decisions nonetheless
have a relationto law.
To say that a legal orderexists is a meaninglessand irrel-
evant statement unless the law is actually enforced. The
enforcement of the law requires decisions because they
bring law into contact with cases. But the generalityof law
is fundamentallyheterogeneous to the specificity of the
case. Mediationbetween these two realms in the name of
lesser violence is the work of decision. As opposed to the
applicationof the law, Derrida'sdecision forces law to rein-
vent itself so that it more appropriatelyfits the particularity
of specific situationsin less violent ways:
For a decision to be just and responsible,it must, in its
proper moment if there is one, be both regulated and
without regulation:it must conserve the law and also
destroy it or suspend it enough to have to reinvent it in
each case, rejustifyit, at least reinventit in the reaffirma-
tion and the new and free confirmationof its principle.
(Derrida1990: 961)
Decisions are simultaneously legal (law-conserving) and
extra-legal (law-destroying). Moments of crisis call for a
decision, yet decision must lack the support of codified
rules. This is not the rejectionof legality because decisions
conserve the law. But, as the quote above illustrates, con-
serving the law is not equivalent to following pre-estab-
lished rules. Thus, decision re-inventsthe law in a non-reac-
tionaryway. It is impossible to programin advance and an
act of invention that brings the legal order to its limit. For
14
Decisionism is extra-legalaction that is freed from the constraints of
reason. On this point, Lillacomes close to collapsing the work of Der-
rida and Schmitt in order to discredit Derrida.Arguably,Derridahas
more in common with Kant(1997) including the affirmationof respect,
the centralityof freedom, an imperativeform for justice, and the dis-
tinction between right and justice.
BETWEEN JUSTICE
JUSTICE AND LEGALITY:DERRIDA ON DECISION
Derrida, the suspension of rules at the moment of deci-
sion-undecidability-does not lead to license but is the
possibility of responsibility
At firstglance,it would seem that a concept like undecid-
abilitywould negatethe possibilityof evermakinga decision,
which would ultimatelyannul responsibility.Indeed,would-
n't cognitive flip-floppingprevent anything from ever hap-
pening at all?For Derrida,undecidabilityis not equivalentto
paralysisbut it is a conditionof possibilityfor politicalaction.
He argues that the condition for decision is simultaneously
the condition of its impossibilityand that situationscharac-
terizedby undecidabilitydemand a decision. If we knew in
advancewhat to decide, it would not be necessaryto make a
decision. By definition,decisions must be difficultor impos-
sible in order for them to be a decision at all. Trulypolitical
moments are alwaysplaguedwith uncertaintyand decisions
never completely surpass undecidabilityAccordingto Der-
rida(1990: 965), "theundecidableremainscaught,lodged, at
least as a ghost-but an essentialghost-in everydecision,in
every event of decision."
Undecidability,or the mystical foundation of authority,
exposes the violence embedded in the founding of all insti-
tutions. Acknowledgingthis violence is significantbecause
it opens them to the possibility of new articulations
grounded on less arbitrarymodes of authority.Authorityis
less arbitrarywhen it supports its own radicalcritique and
affirmsthe contingent characterof its foundation.Even if it
is impossible to find a space beyond undecidability,deci-
sions premised on annullingit are not free and responsible.
Undecidabilityshould haunt decisions before and afterthey
are made. This is what the reliance on rules tries to elimi-
nate. Given the paradoxical character of the founding
moment, it would be irresponsibleto have a rule that would
repudiate the moment of indecision that should precede
each decision.l5When one applies a rule, one createsnoth-
ing that is new. One merely imposes a stale past onto the
futurethat annihilatesthe possibility that is promisedby it.
More importantly,if rules are imposed without acknowl-
edging their contingent origin they are violent and reac-
tionary.Consciousness of the originalcontingency of rules,
then, opens the door to the possibility of less violent deci-
sions. As opposed to maintainingthe political order, deci-
sion transformsit. Hence, decision is an act of invention
that cannot be grounded on anythingthat precedes it. That
makes decision difficult.16 They alwaysinvolve an "anxiety-
ridden moment of suspense"(Derrida1990: 955).
15 Derrida(1992: 72) states:"Anyinvention of the new that would not go
through the enduranceof the antinomy would be a dangerousmystifi-
cation, immorality plus good conscience, and sometimes good con-
science as immorality."
16 The problemof decision hinges on time. Lawis abstract.Decision forces
law to reinventitself in accordancewith the requirementsof particular
situationsso that law is as responsiveas possible to what is specialabout
particularcases. No two cases are the same. In this sense, interpretation
or enforcement of the law should not merely maintain, reinforce, or
defend the status quo. In the moment of decision, the generalityof the
law has to alteritself in accordancewith the particularsituation.
345
Decisions are usually viewed as the prerogativeof the
subject. Throughanxiety,Derridadeepens the crisis of deci-
sion by emptying out its meaning which forces the death of
the subject. He undermines the assumption that subjects
actuallydecide. If your identity is fixed, then your decision
is only the repetitionand extension of your identity.It is not
reallya decision. If your identity is grounded on the hatred
or love of a particularcategory of people, then this eradi-
cates the indeterminacythat is the foundation for decision.
Decision grounded on the maintenance of identity, then,
negates decision. Subjects certain of their identity do not
decide. In fact, decision cannot be controlled,appropriated,
or transformedinto a techniquethat fits into the hand of the
subject as master.
Then, who or what decides? There is no who or what
behind the decision. It is without subject, intention, and
object:
The decision, if there is such a thing, must neutralizeif
not renderimpossible in advancethe who and the what.
If one knows, and if it is a subject that knows who and
what, then the decision is simply the applicationof a law.
In other words, if there is a decision, it presupposesthat
the subject of the decision does not yet exist and neither
does the object. Thus with regardto the subject and the
object, therewill never be a decision. (Derrida1996: 84.)
In this quote, Derridabreaks the relationbetween decision
and the self-identical subject in order to remove decision
from the sphere of anything determinate. For him, the
invention of the decision is simultaneouslythe invention of
a new subject who is then re-inventedby the next decision
that splits apartthe subjectin the ensuing decision. All deci-
sions immediately alter the subject. The sovereign subject
cannot make a decision because its need for identity pre-
vents it from responding to the other in ways that may
necessitateits own transformation.The subjectwith a fixed
identitynever reallydecides. For this reason,decision "must
surprise . . . the very subjectivityof the subject"(Derrida
1997: 68). In the act of decision, we must not know who we
are or how we are going to decide: "Decisionis unconscious-
insane as that may seem, it involves the unconscious and
neverthelessremainsresponsible"(69).
In orderfor decision to be possible, the purposivesubject
must be replacedby one capableof suspending, conserving,
and affirminglegalityand itself in a non-programmaticway.
For Derrida,only such a subjectis capableof deciding. The
issue here is not the lack of the subject for decisionmaking
but the type of subject capable of deciding. Derrida con-
ceives decision in a way that necessitatesthe interruptionof
the subject.17An interruptedsubject is not the negation of
the subjectbut one newly conceived. Thatis to say,the sub-
ject who decides must be oriented to doing justice to the
other as opposed to maintainingits self-identity.
17 For a discussion of interruptionas the condition forjustice and the rela-
tion to the other see Derrida(1994: 28).
346
CRITIQUEOF DECISION
Motivatedby the effort to redefine the political core of
politics, decision necessitates fundamentallyre-conceiving
the relations between law, justice, decision, foundations,
authority,and the subject as well as the specific content of
each category.In response to the way Derridachallengesthe
basic vocabularyof politics, a growing -numberof scholars
have criticized him including Connolly (1995), Moran
(2002), and Lilla (2001).
Connolly affirms the responsiveness to the other that
motivatesdeconstruction.18 And yet, Derridais just too "tran-
scendental"for Connollys late-modernsensibility He argues
that Derrida"attempt(s)to avoid implicationin sufferingor
injusticeat all may have the effectof disablinghim from eth-
ically responsiveactionin morallyambiguouscontexts-that
is, in most contexts"(Connolly 1995: 233). Although he is
awarethat deconstructionshakesup the norm for the sake of
the margin, Connolly senses a retreatfrom politics in the
name of moralpurity.In my view, Derridais tryingto locate
a middle groundthat does not shun actionbut that makes it
as responsibleas possible. He does not reject law or com-
pletelysuspend it but conceivesit as operatingwith justice in
the name of a lesserviolence. Derridarealizesthat thereis no
escapefromthe originof law in violence.Therefore,he wants
there to be somethinghauntingthe enforcementof law that
triggersconstant invention so that the enforcementof it is
never unproblematic.19Connolly'sassumption that Derrida
tries to keep his hands clean when it comes to politics (flirt-
ing with the transcendental)overstatesDerrida'scommitment
to aporeticjustice and underplayshis affirmationof law in the
name of a lesserviolence.20
Anothertake on deconstructionand the question of deci-
sion can be found in Moran's(2002) recent article.21Even
though Moran stages many of his objections as rhetorical
18 For Connolly (1995: 36), deconstruction"seeks to foment the experi-
ence of undecidabilityin areaswhere the correctdecision now seems all
too rationalor obvious doing so to renderus more responsive to those
aspects of alteritythat escape currentdefinitions of rationality,identity,
and normality."
19 Do the
haunting sensations that accompany decision lead to political
paralysis?If I knew that I was going to be haunted by what I did, why
would I ever act?Wouldn'tit be easierto avoid action and therebywipe
one's hands clean of responsibility?There is no guaranteethat decon-
structionwill not lead to political paralysisand irresponsibility.I inter-
pret being haunted by our actions, however, in an affirmativeway. It is
an importantcomponent of our moral development.If our actionswere
motivated solely by the need to be freed from the scrutiny of our con-
science, I doubt that this would produce anything except an inflexible
adherenceto rules. The haunting feelings that accompanydecision are
not the precondition for paralysisbut serve as positive encouragement
for moral reflection.
20 As McCormick(2001: 416) puts it: "Derrida's["Forceof Law"]points to
the fact that we must act with certainkinds of violence today but never
rules out the possibility that we may do without violence altogether
tomorrow."
21
Moran's(2002) critique of Derridawould be more credible if he made
at least one suggestion as to how decision might be better conceived,
especiallysince decision is the dominant theme of his article.
POLITICAL
RESEARCH
QUARTERLY
questions (87 of them), and even though he concedes that
deconstruction has analytic prowess, he sees little ethico-
political value in Derrida'swork on decision. For him, Der-
rida'swork on ethics is "the final stage in what has always
been something of a rearguardaction"(109).22 Concerning
decision, Derridarisks "levelingall qualitativedistinctions";
and the result of decision is "ethical impotence" (118;
124).23Moran'schargethat Derridadestroysthe capacityto
distinguish between decisions, however, is incorrect
because Derrida has clear standards to evaluate decision-
making including respect for others, the extent to which
foundationsare opened to contest in the name of more just
political arrangements,and less violent articulationsof the
law in the moment of decision. Moran'schargethat decision
leads to ethical impotence only sticks if one assumes, like
Moran,that Derridamust offer a programin order to qual-
ify as a political thinker.Since this misconstruesthe import
of Derrida'swork on decision, Moran accuses Derrida of
something that Derridahimself repudiatesas incompatible
with his mode of theorizing.
Lilla (2001) arguesthat if reason does not hold decision
in check, Derridaannihilatesresponsibility.Hence, there is
a proto-fascistmoment and politics of pure will latent in
deconstruction.Without the stable ground of reason, deci-
sion would be the result of an emotional storm. After all,
Derrida claims that the moment of decision is madness.
Does not leaving the field of decision open invite exploita-
tion by the worst forms of political evil?24Advocatingunde-
cidabilityin such contexts would be catastrophic.
For Derrida,thereis no guaranteethat rules groundedon
reason are always just. Following rules could merely be a
ruse for avoiding responsibility.Derrida'squalifiedrejection
of decisions operatingstrictlyaccordingto reasonputs pres-
sure on law to be more flexible in the name of the other.
Hence, a non-appropriativerespect for others serves as the
ethical limit beyond which decision cannot pass.25 Since
respect for the other depends on the partialsuspension of
legality,which Derridaacknowledgesis not without risk, he
22
Although it could be called "rear-guard" action, Derrida'swork on poli-
tics responds to the chargethat he destroyslaw and justice. That it has
been articulatedin the wake of the de Manand Heideggercontroversies
does not subtractfrom its significance,as Moransuggests.
23 For Moran,deconstructionleads to ethical impotence because Derrida
destroys the capacityto make qualitativedistinctionsbetween different
decisions. Derridadoes not give us any guidance as to what we should
do in particularsituations. Derridajust tells us that decisions are diffi-
cult and impossible.
24 Lilla
(2001: 174) states:"Theneutralizationof all standardsof judgment
. . leaves these fields of thought open to the winds of force and
caprice."
25 Does Derridacreateany standardsto distinguishbetween modes of oth-
erness to affirmor criticize?In the words of Derrida(1989: 55): "Let-
ting the other come is not inertiaopen to anythingwhatever."Although
he does not give any programmaticguidelines, the authoritarianor fun-
damentalistpresuppositionsof those who seek to put an end to the pos-
sibility of the coming of additional others should be publicly destabi-
lized. ContraFraser (1989), that this takes place on a relativelyhigh
level of abstractiondoes not make his critiqueany less relevant.
BETWEEN JUSTICEAND
BETWEEN JUSTICE LEGALITY:
AND LEGALITY:DERRIDAON
DERRIDA ON DECISION
DECISION
cannot rule out the possibility that the other could still be
violated. Decision as program,technique, rule, however, is
the a prioridestructionof the other.26
Given the centralityof the other in Derrida'sthinkingand
the ethicallimits imposed on decision, however,Lilla'sclaim
that there is a "politicsof pure will"in Derrida's"dark"and
"forbidding"writings (2001: 190) cannot be supported. As
I have demonstrated,Derridadoes not reject law but puts
pressure on it to be something more than maintenance of
the dominantpower relationsof the community.As we have
seen, justice motivateshis critique.Lillais clearlyinattentive
to the ethical dimensions of Derrida'swritings.
Decision does not mirror traditionalways of thinking
about political action that assume the primacyof the calcu-
lating and willful subject as the locus of responsibility.The
ethical relationto others has priorityover the sovereigntyof
the subject. And yet, decision does not signal a break with
the currentpolitical order.27It is simultaneouslyinside and
outside the system. Decision suspends legalityand affirmsit
at the same time. This dual allegiance raises the stakes of
responsibilityand is a strategythat prevents Derrida'swork
from being too easily assimilated into dominant ways of
thinking about politics.28It allows him to maintaina critical
distance from the field of politics in order to intervene in
unexpected ways: "Everyculture needs an element of self-
interrogationand of distance from itself, if it is to transform
itself' (Derrida1984: 116).29The practicalimplementation
26 The opposition between programsand non-programmaticapproaches
to politics is rigid. Habermas(1999: 257) offers a useful insight that
shakes up this opposition: "Lawis better understood as a functional
complementto morality.As positively valid, legitimately enacted, and
actionable,law can relievethe morallyjudging and acting person of the
considerablecognitive, motivational,and organizationaldemands of a
morality based entirely on individual conscience. Law can compensate
for theweaknessesof a highlydemandingmoralitythat-if wejudgefromits
empiricalresults-providesonly cognitivelyindeterminateand motivation-
ally unreliableresults"(emphasis added). Habermasmay be right. The
empiricalresults of law, however, are not alwaysmore reliablethan the
outcome of action motivated by morality given the contingency often
involved in the implementationof the law (i.e., interpretationof the
meaning of the law and legal discretion). As long as the approach to
rules is non-formulaicand compatiblewith freedom, Habermas'sposi-
tion may representa defensible middle ground, one that Derridahim-
self also advocatesat his most lucid moments. As we saw with Derrida's
approach to law earlier, critics who claim that he rejects law have
simply overstatedtheir case.
27 See Derrida(1982: 135). For him, the result of the belief in an absolute
break:"Inhabitingmore naively and more strictly than ever the inside
one declaresone has deserted."
28 Derrida(1993b: 201) states, "Sometimesone prefersto remainalone, to
not be read or understood, ratherthan to be assimilatedtoo fast."
29 In terms of Derrida'sintervention into the field of politics, he interro-
gates and radicalizesthe basic terms of politics so that the rangeof polit-
ical possibilitiesis more clearlyilluminated.He unmasks modes of vio-
lence hidden in appealsto common sense, nature,or normalityin order
to demonstratehow such thinking excludes and dominatesthe other as
it proclaims itself to be moral, just, and responsible. Even if Derrida's
image of decision is not reducible to a political position in the conven-
tional sense, it helps us to reconsider what politics means today and
how we might achieve less violent modes of living together.
347
347
of Derrida'spolitical direction(legalityand justice as respect
for others) in today'spolitics may be difficult to imagine.
That is preciselyits value. It attunes us to the possibility of
a politicalhorizon groundedon strategicinterfacesbetween
legalityand justice. It is intended to stretchthe limits of the
liberal, or Rawlsian,political imagination.
RAWLS:DEPOLITICIZEDLIBERALISM
Rawls's(1999; 1993) doctrine of justice as fairness has
captivateda large part of the field of political theory since
the publication of A Theoryof Justiceand its subsequent
reformulationin PoliticalLiberalism.The ideals that Rawls
affirmsin his work are praiseworthy.He envisions a polity
with high levels of toleranceand politicalstability.His rights
based conception of liberalismis motivatedby sensitivityto
the plight of minorities. A deep egalitarianpredisposition
animates his thinking. For him, high levels of economic
inequalityare politicallyunjustifiable.As Rawlsputs it, "the
arbitrarinessof the world must be corrected"(Rawls 1999:
122). In accordance with these ideals, he constructs an
image of a stable political society with a neutral state that
could achieve unanimous support, or an overlappingcon-
sensus, on political fundamentals.
In the originalposition of radicalequalityand behind the
veil of ignorance that blinds subjects to their social, eco-
nomic, or political locations, Rawlsian subjects rationally
select principles of justice. Once they are established, they
serve as a theoreticalstandardto measurethe strengthsand
weaknesses of actual constitutional democratic societies.
Accordingto Rawls,the basic principlesof justice as fairness
are neutral. They allow for many differentreasonablecon-
ceptions of the good to harmoniouslycoexist. Although the
concerns that motivate Rawls'swork are admirable,I have
reservationsabout the vision of politics underwriting his
liberalprogram.As I see it, the most contestableaspects of
his theory spring from his will to consensus, his conceptu-
alization of political foundations, and his view of demo-
cratic citizenship.30Although Derrida'swork allows us to
see the limits of justice as fairnessin a new light, there are
also internal contradictionsin Rawls'sthinking that detract
from its credibilityand viability.
In Rawls's(1993: 157) universe, consensus is cemented
into the political founding and overrides all other issues.
30
I define politics as situations of instabilityor indeterminacywhen the
terms and characterof collective life are opened to the possibility of
more just articulations.In order for these new articulationsto remain
political, they must satisfy three criteria.First, they must not deny the
origin of their authorityin violence, even a "lesserviolence."This fore-
grounds the provisionaland contingent basis of every regime. Second,
political regimes must affirm their own permanent transformation
because law is never identicalwith justice. Third,if they want to remain
political, political regimes must actively promote their own critique.
Rawls'simage of political society fails on all counts. The anti-political
dimensions of his projectare apparentin his effortto confine the terms
of public discussion, his belief that it is possible for authorityto be non-
arbitrary,his desire to remove the foundationof politics from the public
agenda and his fear of conflict and critique.
348
348
Anythingthat triggerspolitical conflict is excluded from the
public sphere: "A liberal view removes from the political
agenda the most divisive issues, serious contention about
which must undermine the bases of social cooperation."
Difficult issues may be interestingbut, for Rawls, they are
not the stuff of politics. They threatenconsensus and must
be excluded or contained in the private sphere. Politics is
about tinkering,not controversy
The only truly politicalmoment in Rawls'swork, then, is
laying the ground forjustice as fairnessin the originalposi-
tion. Once the principles of justice as fairness are estab-
lished, however, the political sphere is essentially closed.
Effortsto re-open the foundationarea threatto politicalsta-
bility. The range of acceptablepolitical issues is framedby
principles that are not up for debate. Hence, citizens are
prevented from pursuing those modes of civic involvement
that would open the political sphere to real contestation.
Given the imperativeof consensus, the regime must protect
its political founding from interrogation.
Narrowingthe range of acceptablepolitical issues exacts
a high cost from citizens. Space for dissent is eliminated.
The range of political possibilities is restrictedto one (and
only one) that will be fixed "onceand for all"(Rawls 1993:
161). Once the principles of justice are instituted, only the
support of the status quo is possible (Alejandro1998: 144).
For Rawls,all citizens affirmthe same public conception of
justice (1993: 39). Public discussion about alternativepolit-
ical possibilities is not necessary.31 Since a critical disposi-
tion toward the founding moment of justice as fairness
would risk destroyingconsensus, it is better to treat it as a
monument before which one genuflects.
Rawls, however, does not purge all conflict from his
model of politics in the name of consensus. Some level of
reasonabledisagreementis permittedin his liberalutopia. It
arises from the "burdensof judgment."The causes of these
burdens are formidable:
a. The evidence-empirical and scientific-bearing on
the case is conflicting and complex, and thus hard to
assess and evaluate.b. Even where we agree fully about
the kinds of considerationsthat are relevant,we may dis-
agree about their weight, and so arriveat differentjudg-
ments. c. To some extent all our concepts, and not only
moral and political concepts, are vague and subject to
hard cases; and this indeterminacymeans that we must
rely on judgment and interpretation(and on judgments
about interpretations)within some range (not sharply
specifiable) where reasonablepersons may differ. d. To
some extent (how greatwe cannot tell) the way we assess
evidence and weigh moral and political values is shaped
31 Mouffe(1996: 254) arguesthat this is the totalitarianmoment in Rawls:
"Therationalistdefense of liberal democracy,in searchingfor an argu-
ment that is beyond argumentationand in wanting to define the mean-
ing of the universal,makes the same mistakefor which it criticizestotal-
itarianism: the rejection of democratic indeterminacy and the
identificationof the universalwith a given particular."
POLITICAL
RESEARCH
QUARTERLY
by our total experience, our whole course of life up to
now; and our total experiencesmust always differ.Thus,
in a modern society with its numerous offices and posi-
tions, its various divisions of labor, its many social
groups and their ethnic variety,citizens'total experiences
are disparateenough for their judgments to diverge, at
least to some degree, on many if not most cases of any
significantcomplexity.e. Often there are differentkinds
of normative considerations of different force on both
sides of an issue and it is difficult to make an overall
assessment. f. Finally,any system of social institutions is
limited in the values it can admit so that some selection
must be made from the full range of moral and political
values that might be realized.This is because any system
of institutions has, as it were, a limited social space. In
being forced to select among cherished values, or when
we hold to several and must restricteach in view of the
requirementsof the others, we face great difficulties in
setting priorities and making adjustments. Many hard
decisions may seem to have no clear answer (Rawls
1993: 56-7).32
The only legitimateexercise of power that can result from
these burdensis justice as fairness.Awarethat the differences
between comprehensivedoctrines are ultimatelyirreconcil-
able because of these burdens, Rawls (1993:58) embraces
toleration:"Theburdensof judgment are of firstsignificance
for a democraticidea of toleration."33 Tolerationis clearlya
praiseworthyvirtue. But what preciselyis tolerated?
Given the difficulty involved in the justifications of all
positions, the fact that the basic principles of justice as fair-
ness are not open to contestationseems arbitrary,especially
for a thinker who maintains that in his model "arbitrary
authority has disappeared"(Rawls 1999: 429). Sword in
hand, rationalityrose up againstthese burdens and was vic-
torious in the originalposition. It is importantto note that
the burdens of judgment are reasonable, as opposed to
unreasonable,sources of disagreement.34This distinction is
significant because reasonable disagreement contains the
seed of consensus. Butif we take a close look at the burdens,
how is it possible to achieve consensus given these difficul-
ties? In a post-original position situation, the burdens of
judgment could be embraced in the name of democratic
idea of toleration since the political foundation is already
secured. If the burdens were at work in the original posi-
tion, however, the consensus that Rawls secures on basic
principleswould be impossible to achieve.
32 It is
striking that Rawls refers to these issues as burdens. I celebrate
them as the necessaryprerequisitesfor criticalreflection.
33 Derridean
respectgoes beyond toleranceinsofaras it involves openness
to others based on the affirmationof the mysticalfoundationof author-
ity Toleranceis a necessary first step but is insufficient.Tolerancecan
easily slip into passive and de-politicizingnon-engagementwith others
or even repressedloathing for difference.
34 Unreasonablesources of
disagreementinclude "prejudiceand bias, self-
and group interest,blindness and willfulness"(Rawls 1993: 58).
BETWEENJUSTICE
JUSTICEAND LEGALITY:
DERRIDAON DECISION
Rawlspresupposesthe consensus that his theory seeks to
establish,and then he introducesthe burdensof judgmentin
the name of tolerationas a way to reinforceit. And yet, Rawls
tolerates everythingexcept the divisive issues that put his
overlappingconsensus at risk. Reopening the founding to
contestationis not tolerated.Arguably,fidelityto the burdens
justify returningto discuss foundationalassumptionssince
more optimal arrangementsmight be possible. But opening
the politicalfoundationto discussion, for Rawls,is too risky.
It would not produce the pacifiedand conflict free vision of
politics that he seeks. The burdensmay allow for mild levels
of disagreementbut they also contain it at the most decisive
moment: political foundation.The disagreementthat Rawls
permitsin one moment is snuffed out in the next.
If Rawls's appeal to the burdens of judgment seems
disingenuous insofar as the founding moment of justice as
fairness is somehow protected from them, his underlying
notion of citizenship also leaves much to be desired. Even
though he claims "citizens learn and profit from conflict
and argument"(Rawls 1993: lvii), he methodically closes
spaces for the types of dissent, conflict and argumentthat
nurture democratic citizenship. If citizens with competing
comprehensive doctrines happen to meet on the street in
Rawls'sliberalutopia, they nervously grimaceat each other
and then retreat to the private sphere, simply shrugging
shoulders in silence during encounters. Both the immedi-
ate impact and the intergenerationaleffect of Rawls'sneu-
tralizationof public dialogue will produce a society of inar-
ticulateshoppers on Prozac:"BytakingProzac,they may be
able to alleviate their angst, which might be a disruptive
force to the liberal order"(Alejandro 1998: 13). Citizens
will not only be unable to contest abuses of power but they
will be incapable of negotiating encounters with others in
substantiveways.
Rawls'sallergy to even mild modes of political conflict
results in a de-politicizationof politics under the banner of
neutrality.35He evacuates all political content from public
discussion:"Wetry to bypass religionand philosophy'spro-
foundest controversiesso as to have some hope of uncover-
ing a basis of a stable overlappingconsensus"(Rawls 1993:
152).36Much to his credit, Rawls acknowledges the great
deal of indeterminacyof decision in the burdensof judgment
35
Accordingto Rawls(1999: 342), "Thereis no way to avoid entirelythe
dangerof divisive strife, any more than one can rule out the possibility
of profound scientific controversy.Yetif justifiedcivildisobedience
seems
to threaten civil concord, the responsibilityfalls not upon those who
protest but upon those whose abuse of authority and power justifies
such opposition. For to employ the coercive apparatusof the state in
order to maintain manifestlyunjust institutions is itself a form of ille-
gitimate force that men in due course have a right to resist"(italics
added). The credibilityof this statementis put into question by the fol-
lowing claim: "The duty of civility imposes due acceptance of the
defects of institutions"(312).
36 Derrida's(1997) work on friendshipis not comparableto Rawlsiancon-
sensus. The sterilesameness in Rawls'sconsensus liberalismis precisely
what Derridaresists in his effort to rethink friendshipin non-homoge-
nizing ways that reservespace for singularity.
349
349
but this indeterminacyis somehow absent fromhis image of
political society. The indeterminacyof decision in Rawls is
mitigated by his de-politicization of political foundations.
The indeterminacyof politics is preciselywhat Rawlsseeks
to expel from the political horizon. Political liberalism
purges politics from politics and encloses the political field
under the terrorof uniformity.37 The value Rawlsascribesto
pluralism is disingenuous. It is incompatible with the
of
imperative unanimity on basic principles.
BETWEEN JUSTICE AND LEGALITY:
ANTIDOTE FOR JUSTICE AS FAIRNESS
Derrida'sre-conceptualizationof decision arreststhe dis-
enchanted liberalism that we see in the work of Rawls.
Rawls'sliberalismis disenchantedbecause he drains every-
thing that revitalizespolitics fromhis image of politicalsoci-
ety. He excludes fundamentalquestions and controversies
from the public sphere. There is no space for healthy polit-
ical conflict.38Liberalismneeds the work of Derridain order
to recoverpolitics frompolitics, to redefinethe politicalcore
of politics as an experience of uncertaintyand the ethical
imperative to respect the other, to overcome bureaucratic
liberalism,to strip the illusion off of institutionaldecision-
making that masks politics behind the veil of consensus, to
raise the stakes of responsibilitythrough the strategiccon-
vergence of law and justice.
Groundedon a strategyof paradox,decision is Derrida's
attemptto fuse criticalreflectionto politicalaction but with-
out subordinatingone to the other.39This signals its limits
while also illuminating its value; no theory is complete in
and of itself. And yet, decision can produce a post-struc-
turalistmodel of citizenshipand a vibrantand radicalliber-
alism based on the permanent interrogation of political
foundations,the cultivationof respect for others, a critique
of subjectivity,the affirmationof legality, and justice as a
relational experience of the other beyond exchange and
revenge (Derrida 1994: 21-22).40 But how is a relation
between justice and legality sustained?
Anxiety is the specific feeling that Derridamobilizes to
bridge the gap (albeit incompletely) between justice and
37 Are there any points of contact between deconstruction and Rawls's
politicalliberalism?Derridacultivatesmoments of indeterminacyin the
name of a morejust political society.Indeterminacyis not a burden for
Derridabut gives a future to politics. The "burdensof judgment"are
also a potential source of indeterminacyin the Rawlsianproject. But
Rawls circumventstheir positive political potential and merely mobi-
lizes them for the idea of tolerance. This is a missed opportunity for
politicization. New vistas of democratic citizenship are foreclosed in
Rawls.
38 See Honig (1993: 126-161) for a discussion of Rawls'simpatiencewith
politics. See Ranciere(1995: 104) for a critique of consensus politics:
"Thetroubleis that racismis not the symptom but the disease-the dis-
ease, in fact, of consensus itself, the loss of any measureof otherness."
39 For a defense of the ethical
significanceof paradox,see Sokoloff(2001a:
776-77).
40 For Derrida(1994: 23), law and
right stem from vengeance.Justice is
the "an-economicex-position to others."
350
350
legality. ContraRawls, anxiety is valuable because it com-
bines reflective hesitation with empowerment.41Anxiety
puts the correctness of our actions and fundamental
assumptions into question. It also breaks the reliance on
habit, heightens attentiveness,promoteslearning,generates
a deliberative space, and enables the mind to dream
(Marcus2002: 99-116). Taken in measured doses, anxiety
is an unsurpassablereminder of the gaps in our identities
and altersthe subjectin ways that renderit more open.42As
Marcus(2002: 116) argues, "anxietyis the centralemotion
on which reason and democraticpolitics rests."
Once one begins to see how decision expands the way
politics is conceived, challengesthe consensus liberalismof
Rawls,transformsthe self in anxiety,attunesus to the ethical
concernsthat motivateit, and navigatesthe relationbetween
law and justice in order to energize citizenship,we can see
just how limited many critiques of Derrida'swork actually
are.43As McCormick(2001) states, the "foror against"atti-
tude in the academyin the 1980s and 1990s that is enforced
by liberals and their critics has had unfortunate conse-
quences on academicdiscussion. In such a climate,a text as
complicatedand provocativeas "Forceof Law"would have
little chance of receivinga fairreadingwhen readersare pre-
occupied with labelingan authoras eitherliberalor anti-lib-
eral (422). Authors that pose questions in ways that elude
41 Rawls
(1999: 110) states, "Judgmentis likely to be distortedby anxiety"
Although Derridahas not theorized anxiety in a sustained manner, it
plays a significant role in this thinking. For the relationshipbetween
anxiety and revolution refer to Derrida (1994: 108-109); anxiety and
languagesee Derrida(1978: 3); anxiety and politics see Derrida(1984:
120). For a defense of politics groundedon anxietysee Sokoloff(200 lb:
8-9). A growing number of scholars have recently reassessedthe value
of anxiety as a moral feeling. Accordingto Thiele (2003: 13), "Sadness
and anxiety triggermore careful and elaborateprocessing of informa-
tion and more discrete judgments." See Marcus (2002: 105) for an
account of how anxietyimprovesjudgment: "Whenpeople are anxious
. . . they are more willing to consider alternativesoutside the range of
the familiarand comfortable";see also Foucault(1996: 254): "Ifearthat
it is dangerousto allow judges to continue to judge alone, by liberating
them from their anxiety and allowing them to avoid asking themselves
in the name of what they judge, by what right, by what acts, and who
are they, those who judge."
42 Anxiety operates in terms of the self's relation with itself (discussed
earlier) and in reference to the self's relation with the present politi-
cal order. Anxiety about the origin of legality in illegality motivates
the aspiration for justice. Law is never completely in step with jus-
tice. Anxiety also inserts critical reflection into spaces that may be
resistant to thought. Grounded on habit and majorityapproval,polit-
ical institutions are always at risk of becoming dogmatic. Anxiety
motivates the critique of the status quo in order to replace dogmatism
with critical reflection. To some extent, anxiety should also mediate
the relation between law and justice. There are no guarantees, how-
ever, that anxiety can always produce the types of decisions that can
bridge justice and legality in less violent ways. Nevertheless, anxiety
is likely to generate important political virtues including critical
reflection, skepticism and the willingness to see an issue from a plu-
rality of viewpoints.
43 Connolly (1995) pins Derrida as a transcendental thinker. Moran's
(2002) dismissive readingof Derridamisses the ways he contributesto
ethical and political reflectionand can revitalizeliberalism.Lilla(2001)
casts him as a chic nihilist.
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RESEARCH
QUARTERLY
this opposition, or who seek to transformit, will simply run
into a wall of incomprehension.44
CONCLUSION
Derridaplaces imperativesof paradoxin the heart of the
legalorderin orderto connectpoliticalactionto a highercon-
ception of responsibilitybut withoutabandoningthe need for
political action today For Derrida,politics does not happen
when one follows a programor when one dreamsabout an
impossible notion of justice but in the non-programmatic
interfacebetween justice and legality His re-conceptualiza-
tion of decision is a strategyintended to make politicaldeci-
sions more difficultbut without abandoningthe call for more
responsiblemodes of political action. He prevents us from
deciding too quickly but also rules out as irresponsiblethe
deferral of decision. He breaks the unhelpful opposition
between prematureaction and irresponsibleindifferencein
the name of more responsiblemodes of engagement.45Even
if I have somewhat arbitrarilybrought Derridaand Rawls's
work into contactin this essay,Derridaattemptsto rescuethe
word politics from the paralyzingmalaise that has resulted
from the crampedpoliticalimaginationand narrowview of
citizenshipthat we can see in Rawls.
Signs of the exhaustion of politics are the signs of our
time: a narrowingof crediblepolitical alternativesthat have
renderedelections almost irrelevant,the corporatedomina-
tion of the political sphere that casts an ominous shadow
over the voter,the disappearanceof substantivedialogue,the
gag order on dissent, widespreadapathy,dubious unilateral
foreignventures,a crisisin educationand health care,public
contempt for politicians;and little faiththat anythingcan be
done to address this. Interpretedaffirmatively,decision is a
strategyof political renewal. It creates an extralegalethical
space fromwhich one can launcha permanentcritiqueof the
legal order. This permanent critique appears as a sponta-
neous politics that cannot be representedby a party or a
leader.Like Socratesin Apology(Plato 2003) it is annoying,
defiant,and it stings;but unlike him in Crito(Plato2003), it
never passively submits to state power.46This spontaneous
politics is the scourgeof tyrantsand their flatterers.As Shel-
don Wolin (1996: 37) remindsus, citizenshipis more than
merelyfollowingthe rules of a particularlegal order;forhim,
"democracyis born in transgressiveacts."
The space between justice and legality is the space of
freedomand transgressionpar excellence.47 If citizens arenot
44 Derrida(1990: 923) states:"Ican offerno response, at least no reassur-
ing response, to any questionsput in this way ("either/or,"
"yesor no")."
45 According to McCormick (2001: 417), "Derridademonstrates that a
world without violence is our most enlightened aspiration, if not an
instrumentallyattainablegoal. But this insight encouragesus to think
about living according to law formulatedand enforced in less violent
ways."
46 See Villa (2001) for a discussion of Socraticor "dissidentcitizenship."
47 The space between justice and legality may not be appealingfor every-
body. Some citizens may prefer to remain in the private sphere since
being "between"is simply too precarious.The anxiety and tension that
BETWEEN
BETWEEN JUSTICE AND
JUSTICE LEGALITY:DERRIDA
AND LEGALITY: ON DECISION
DERRIDA ON DECISION
willing to leave the safety of the privaterealm and enter the
space between justice and legality,then the most important
expansions in democracywould never have happened. All
emancipatorystrugglessuspend and reinterpretthe founda-
tions of law in the name of a more just vision of collective
life. The movements to abolish slavery, expand voting
rights, protect the environment, recognize the rights of
women/gays/lesbians,open nationalbordersto refugeesand
asylum seekers, and end capitalist exploitation were and
continue to be motivatedby an ideal higher than mere legal-
ity, and often began in modes of civil disobediencethat may
not have been initiallyrecognizedas involving cases of clear
injusticebut that neverthelessultimatelyshook the founda-
tions of liberaldemocracy48
Rawls may agree with the aims of many of these move-
ments and the expansion of rights but one will not find in
his work the active citizens who will pursue these projects.
The motivation for political change will not come from the
work of Rawlsbecause he excludes everythingthat revital-
izes a politicalculturefromhis model of politics:the restless
and interminable dialogue about foundations; public dis-
cussion about the most divisive issues; anxiety about the
characterof public life; active citizens; acts of civil disobe-
dience that may not be recognizedby the state as involving
substantial and clear injustice; healthy skepticism about
authority;and the permanentcritiqueof the status quo.
Like Derrida,movements based on the identificationof
injustice test the limits of the liberalstate. And yet, without
legality, long lasting improvements in the extension of
democracyand addressinginjustices on a day to day basis
would neverhave been possible. Restingon eitherlaw orjus-
tice is therefore irresponsible. Maintaining the tension
between law and justice is necessary.49This tension consti-
tutes the terrainof politics. Hoveringin it is perhapsas close
as it is possible to come to the experienceof politics as such.
In the currentcontext of fearand the obsessionwith security,
questioninglegalitymay be less welcome than everbut more
necessary than at any other point in the history of liberal
democracies for the revival of democratic citizenship.
theyarelikelyto experience
in thisspacemaybe toomuchto take.Mul-
tiplelocationsfordemocratic however,needto be cultivated
citizenship,
includingthespacebetweenjusticeandlegalityasviableoptionsforcit-
izen participation.Dominant versions of liberalism are too willing to
trust the state and are inattentiveto the depoliticizing and disciplinary
tendencies inherent to increasing state centralization.Embracingthe
space betweenjustice and legalityis not a rejectionof the state but a call
to expand spaces of politics in the name of a better future.
48 If Derrida's(1994: 85) work on decision lays the groundworkfor a pol-
itics of resistance,his call for political struggle against triumphantand
dogmatic versions of liberal democracy and market capitalism in
Spectersof Marxoutlines his specific targets.For him, "neverhave vio-
lence, inequality, exclusion, famine, and thus economic oppression
affected as many human beings in the history of the earth and of
humanity."
49 For Derrida(1994: 175), justice must happen "through but also beyond
right and law."Derrida'scall for justice today correspondsto his effort
to do justice to te spiritof Marxas well as to the memory of fallencom-
radeswhohavediedin thestruggleagainstinjustice.
351
Decision is an example of how questioning legality might
proceed. It is a style of questioning that can produce some-
thing akin to a critical theory of politics. It should be viewed,
finally, as a significant contribution to our field that has been
bogged down by Rawls's tired image of political life.
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Received: March 8, 2004
Accepted for Publication: May 4, 2004
Wsokoloff2000@yahoo.com