laws of deliberation: from audaciousness to prudence... and back

PABLO SANGES GHETTI*

LAWS OF DELIBERATION: FROM AUDACIOUSNESS

TO PRUDENCE. . . AND BACK

ABSTRACT. From the perspective of a political philosophy of law, this essay ex-plores the rich encounter of the thoughts of Jacques Derrida and Jean-Luc Nancy.This articulation discloses the opportunity for a new mode of thinking and writing

the political that challenges current models of legal and political legitimacy. Thisopportunity and task of thought is called de-liberation, as deconstruction of free-dom, and deconstruction of deliberation. Furthermore, an account of radical free-

dom and reason is found in de-liberation. Following Derrida ’s description ofNancy ’s approach to freedom, this essay undertakes a work of translations; fromaudaciousness into prudence . . . and back. It escapes from Nancy ’s audaciousness to

fall onto Derrida ’s prudent world, and only then, perhaps, return to the shelter thatcomforts both, to the spacing that they share out. Deliberation and freedom are,however, scathed by such a lacerating sharing. Severed from the law – but exposed to

the law of the law – they demand and yet persist in de-liberation.

KEY WORDS: deliberation, Derrida, exposition, freedom, law, Nancy, reason

And it is called Deliberation; because it is a putting an end to the Liberty we had ofdoing, or omitting, according to our own appetite or aversion.1

SHREDS OF DELIBERATION

Audaciousness and prudence – if we follow Derrida ’s description ofNancy ’s approach to freedom, then this essay would have to under-take a work of translations from audaciousness into prudence. . . andback. Derrida ’s beautiful words attest this interpretation, revealing a

* Ph.D. candidate at Birkbeck, University of London, member of the GPDD –Research Group on Law and Democracy of the Catholic University of Rio deJaneiro. I would like to thank CAPES (Brazilian Agency for Postgraduate Educa-

tion) for providing me with invaluable funding. I am also very thankful to thecomments made by Peter Fitzpatrick and Thanos Zartaloudis. This article alsobenefited greatly from comments made to an earlier version at Birkbeck ’s Post-graduate Conference, 2004.

1 T. Hobbes, Leviathan (Oxford: OUP, 1996), 40.

Law and Critique (2005) 16: 255–275 � Springer 2005DOI 10.1007/s10978-005-1513-8

great distance between great friends: ‘I who have always lacked hisaudaciousness ’.2 We shall escape from Nancy ’s audaciousness to fallonto Derrida ’s prudent theoretical world, and only then, perhaps,return to the shelter that comforts both, to the spacing that they shareout.

Deliberation has been confined to the boundaries of a deliberativetheory understood as the conceptual framework of a contemporarymodel of democratic legitimacy. It aims to take into account theplurality of conceptions of the good found in modern societies, butyet engendering the theoretical conditions for a communicativesharing of power apt to reinvent both public and private autonomy.This project, whose main representatives are Rawls and Habermas3,has been cogently critiqued – not so much for its correct rejection ofutilitarianism, and aggregative democracy, but for its manyassumptions with regard to the human nature and discourse, neu-trality, systemic differentiation, and its uncritical gaze toward liberaldemocracy and subjectivity. Here we will take for granted the critiqueof these theories – in particular those that put forward the necessity ofa new framework for the understanding of the labyrinths thatconstitute our worldwide legal-political shortcomings.4

What if these boundaries – of the current deliberative debate –were to be stretched? What if it were possible to think deliberationfrom the perspective of its margins? Many authors have been able toexpose these margins as well, either in historical, geopolitical, orcultural terms.5 This extension of boundaries and inclusion of themargins tends to represent a mere rearrangement of the currentdeliberative institutional models. Our task here, however, is to pro-duce an extension of deliberation that reveals the margins from

2 J. Derrida, Voyous – deux essais sur la raison (Paris: Galilee, 2003), 67.3 For a good account of the importance of these authors for deliberative theories,

see J. Bohman, Public Deliberation – Pluralism, Complexity, and Democracy(Cambridge, MA: MIT Press, 1996), 1–20.

4 C. Mouffe, The Democratic Paradox (London: Verso, 2000); S. Zizek, ‘‘CarlSchmitt in the Age of Post-Politics’’, in C. Mouffe, ed., The Challenge of Carl Schmitt

(London: Verso, 1999); P. Fitzpatrick, ‘‘Consolations of the Law: Jurisprudence andthe Constitution of Deliberative Politics’’, Ratio Juris 14/3 (2001).

5 G. Remer, ‘‘Political Oratory and Conversation. Cicero versus Deliberative

Democracy’’, Political Theory, 27/1 (1999). B.S. Santos, L. Avritzer, ‘‘Para Ampliaro Canone Democratico’’, in B.S. Santos, ed., Democratizar a Democracia – OsCaminhos da Democracia Participativa (Rio de Janeiro: Civilizacao Brasileira, 2002),

39–82; I. Marion-Young, Inclusion and Democracy (Oxford: Oxford UniversityPress, 2000), 16–52.

PABLO SANGES GHETTI256

within, internal margins of deliberation. A new thought on deliber-ation should not just attempt to recover the lost ground of the ancientdeliberation, nor introduce other discourses and cultural perspectives,and should not only reaffirm the peculiarities of the disenfranchisedregions of the world – albeit necessary to take all these issues intoaccount. This extended6 deliberation should mean a wholly newposition for those who deliberate, one that stretches all positions ofdecision, and one that threatens the comfortable legality of democ-racy, and necessarily, law itself. This exposition reveals the internalmargin of deliberation, its otherness to itself, its very own bedazzlingevasion of presence. This other deliberation serves to thinking bothwhat accompanies any legal or political decision, as much as thedeconstruction of the idea of freedom, as that idea that narrows downand quells what it is supposed to represent. This marginal expositionis pursued in the interplay between the endeavours of Jean–LucNancy and Jacques Derrida.

Deliberation must be proved again, reminded through the materi-ality of its sound, and difference of its writing. There is more in delib-eration, and something left over by deliberative theorists. Theseremainders are our very beginning. Decision, thought, measure, allthree are implicated in the concept of deliberation, and unfortunatelyforgotten, even effaced – but they persist. We argue that deliberationwith its remainders is crucial both for Nancy ’s Experience of Freedom,and Derrida ’s postulation for a democracy to come. The moment thatprecedes a decision, the practical reasoning that gives rise to decisionsor judgements, arguments, faith and preference for arguments, con-sidered decision itself, this is the world of deliberation. From its ety-mology it is possible to indicate how this reasoning takes place, or whatcomes up at this moment: l�ibra, balance, libr�are, weighing – amatter ofmeasure. Unsurprisingly, such ametric balance or calculation co-existswith that which surpasses any measure, the incommensurable: theLatin prefix d�e composes the noun in its sense of intensity, thorough-ness, completeness, aswas usual in the popular language. Furthermore,the Latin term d�eliber�are refers not only to careful consideration, but ittranscends any solipsism in the idea of consultation, to consult with

6 J. Derrida, Le toucher (Paris: Galilee, 2000), 14. It is in this extension thatdeliberation can be apt to challenge the tension, the positioned imposition of legalpositivism. This extension calls for another position, and another sense of posi-

tioning, it calls for ex-positivism. Deliberation, as we put forward here, is an elementof this exposition of positivism.

LAWS OF DELIBERATION 257

others and even with an oracle. In this way, it requires thought in all itsdensity.

Yet, deliberation also imports decision – and our epigraph comesto the fore. Hobbes is an important primary reference with regard todeliberation, although allegedly through a loose etymology.7 Hobbesmight have provided a loose etymology in the sense that the ‘de ’ ofdeliberation does not have a directly negative connotation – althoughwe should play with the negative (or its distancing move) connotationthat ‘de ’ entails. However, it was not loose if one considers his ref-erence to freedom. There are both classical and modern indicationsthat deliberation might have evolved from ‘liberty ’, from l�iber�o.Ernout and Meillet remark that Paulus Festus ’s reference to ‘l�ibra ’(balance) as basis for deliberation is not as reliable as most authorsbelieved – there would be no reference to a word like ‘delibrare ’,which should have preceded d�eliber�are. They suggest that d�eliber�aremay have followed a specialized sense of l�iber�o. in the same figuredmode that resolv�ere (solve, resolve) came from solv�ere (detach).8

Hobbes was aware of deliberation ’s aporia, that is certain, especiallyin as much as he saw deliberation as a moment of final calculation,but still accompanied by the Will, a passion, even shared by thebeasts. It would provide, in addition, the limit to liberty, the end ofliberty. If his reference to this ‘de ’ was not indeed very accurate, hisreference to freedom is now plausible. And in exposing the radicalityof freedom, one can gather the resources to propose a deconstructionof freedom as understood by the tradition, the freedom of the subjectand of community – this is in fact what Nancy does. De-liberation isin this setting a particular deconstruction – one that discloses free-dom, radical freedom.

NANCY IN DE-LIBERATION: THE EXPERIENCE OF FREEDOM

The first contribution that Nancy ’s thought provides to a theory ofdeliberation comes from an assessment of freedom in the Experience ofFreedom that exceeds any separation between public and private auton-omy. This has been a primary concern of deliberative theorists – how to

7 P. Fenves, ‘‘Foreword: From Empiricism to the Experience of Freedom’’, in

J.-L. Nancy, The Experience of Freedom (Stanford: Stanford University Press, 1993).8 See A. Ernout, A. Meillet, Dictionnaire etymologique de la langue latine – His-

toire des mots (Paris: Librairie C. Klincksieck, 1967), 168. The references to liberty,

but also to weighing appear in A. Walde ’s Lateinisches etymologisches Worterbuch(Carl Winter ’s Universitatsbuchhandlung, 1938).


reconcile human rights and popular sovereignty? Or, the privateautonomy of the subject and the public autonomy of the citizen? Whichtype of freedom precedes the other? Deliberative theorists have foundin the deliberative neutral discursive process the common ground thatunderpins these concepts and institutions of autonomy. Nancy departsfrom the terms of that debate: ‘Freedom is then singular/commonbefore being by any means individual or collective ’.9 In a certain way,‘Freedom gives – freedom ’ before any particular contour of presence.10

However, Nancy still advocates the expression and the tradition of apublic space, even attributing a certain pre-eminence to the exterior sideof freedom before the interior: ‘Freedom as external composition oftrajectories and outward aspects [allures] ’.11 This externality, however,is public in as much as it is political, a reinvention of the political.

THE LAW OF THE LAW: FROM THE IDEA TO THE EXPERIENCE OF FREEDOM

Such a displacement and reinvention of the political space must beunderstood in the context of a deconstruction of freedom. One of themain features of this thought appears through the questioning of theschism between freedom and necessity. First, freedom is not reducibleto a ground. As long as one conceives that a causa sui force, or God,or the very Idea of causality has separated itself, or Himself, from thebeings-in-the-world, establishing them and their freedom, it is afreedom of necessity that is created.12 God, or causality, mean heretranscendences that are immanent to themselves, hence, separatedbut determinant of the things of the world. They create and arecaught in a chain of creation – in this sense, and following Bataille,Nancy reminds us that God cannot not abide by His Law. God, inthis sense, is not free, but overwhelmed by his law, whose abstract-ness hinders authentic freedom and thought itself. This abstractnessof the law of God is bestowed with many names, one of which is Idea,or the representation of necessity. Besides, a thought that takes forgranted all ‘beings ’ as necessary self-realizations of the Idea, andfreedom as the accomplishment of the Idea will very certainly missfreedom, precisely because by relying on this order of foundation,being detaches itself from factuality, from the world of the ‘there ’,

9 Nancy, supra n. 7, 74.10 Ibid., 73.11 Ibid., 74.12 Ibid., 11–12.


from being-there: ‘Freedom is missed because in this thought it isassured in advance. . . ’.13

Nancy claims, though, that even in the very core of the Idea themoment of birth to freedom is disturbing. The Idea of God is notcapable of suppressing freedom altogether, for in its very being forfreedom (God, as supreme being, but not Sein, or the ‘be ’, estab-lishes freedom) it founds ‘the freedom on which it is in itself foun-ded ’.14 Here God touches freedom; both found themselves withoutbeing founded. Yet Freedom flees from the Idea of God and the lawthat represents the necessity of the idea, it flees towards the factual.It evades the abstract and purist move of the Idea towards ‘apraxical [praxique, from the realm of praxis] factuality irreducible tothe theoretical ’.15 Factuality is not a fact but it is to be a fact, notdone but ‘to be done ’ as fact, ‘a faire ’,16 in the sense that it putsitself into motion and that it delivers itself to itself without beingposited, established – or the typical factuality of singularity, theevent of singularity: ‘just once, this time ’.17 This structure of fac-tuality obliges Reason (the chains of calculation), to fall over its owncase – its foothold, one that allows the announcement of its law.‘The case. . . cannot but escape law [as the necessity of the Idea] ’ and‘the essence of jurisdiction is to pronounce ‘‘the right [droit] of whatis by right [de droit] without rights [sans droit]’’’.18 Here Nancy usesa juridical metaphor to address the all too unreal experience offreedom that challenges the jurisdiction of the rational monarch ofthe world.

13 Ibid., 47.14 Ibid., 12.15 Ibid., 47. For factuality, see Nancy ’s account of the ‘fact of freedom ’ in Kant,

ibid., 21–32.16 Nancy, supra n. 7, at 31.17 Ibid., 66.18 Ibid., 47. French: ‘le droit de ce qui est de droit sans droit ’, 69. It is always

difficult to translate droit. Right allows the recreation of Nancy ’s pun, but it wouldbe wrongly understood as subjective rights. He did not say ‘sans droits ’, but ‘sansdroit ’. Pronouncing right (jurisdiction) entails something else, it is more compre-hensive than deciding who is entitled to a certain right. The sentence could be

summarized as the singularization of the experience of law. The legal invention ofeach decision that is never reducible to rights or law as abstract terms, one that yetdwells on a world of law ‘by right ’, tasting the experience of law, and escaping the

measurement of rationality. See J.-L. Nancy, ‘‘Lapsus Judicii’’, in L ’imperatifcategorigue (Paris: Flammarion, 1981), 46–47.


However, another account of law takes place. This other lawprecedes – one that favours what we are about to name deliberation.It is, in a way, the law of the law – the unavoidable law of existence:‘Existence is law [loi] ’ and ‘it is not then a law that can be respectedor transgressed. . . ’.19 This is the law of existence, but only inasmuchas existence is taken as its own essence, and not as opposed to anysubstantial essence. A law different from any legal system of rules –but one that is still required by any system of legality, and whosesovereignty is the unattainable model of any actual law. This lawcommands the radical absence of law – this is an-archy, as the ab-sence of origins, principles, and all-encompassing essences.20 Free-dom is found on the limits traced by this law, which is limiting, finite.Freedom, then, conceived as the exposed factuality of this law, or asthe experience of the factuality of this law: ‘Freedom is the fact that[the law of] existence is exposed ’.21 As law, it must be enacted (notposited, it is ex-posed, ex-posited), it must be put into action, and thisaction, this beginning of the law, but not its origin, can be calledeither experience or decision.22 Experience, as an experience ofand on the limits, this is exactly that that calls for the sense of thelimit: a moment from, and out of the limit, risk, and danger –ex-periri. But also decision, in as much as decision, if any true deci-sion must be undecidable, can only deepen the experience of thelimits, as in the mad moment of the rotten foundation of legality.

ANOTHER LAW OF THE SEA? EVIL, DECISION, FREEDOM

Where has Nancy found such a danger, combined with a difficultunfounded foundation? All experience of freedom can only beunderstood by means of a certain spatial reference – otherwise,without this concrete experience of being-there, this world finitudewould not be credible. The space appropriate for freedom is the sea.The chora of the sea, a liquid space, upon which there is surfing –surfing adrift. This is our condition. There, in this ‘there ’ that has no

19 Nancy, supra n. 7, at 30.20 Ibid., 13/30.21 Ibid., 92.22 It is precisely in the sphere of decision that Nancy approaches our main

argument: ‘‘The decision, Ent-scheidung, here is not the choice produced at the end ofa deliberation (the existent does not deliberate whether it exists or will exist;

meanwhile. . . we could say that its existence is in itself essentially deliberated, in thetwo valences of the word)’’. Ibid.,138.


secured place, Nancy finds as well the dangerous experience offoundation, the most dangerous criminals who respect no law, butwho live upon the tracing of their own laws. The true freedom comesfrom the sea, from the pirates of the sea. They have, according toNancy, let themselves be taken by the danger, by the decision to thedanger: ‘piracy has always something of foundation, unrightfullydisposing rights and tracking unlocatable limits on the chora of thesea ’.23

The sea is a powerful image, which should be regarded carefully.Nancy, for sure, does not propose a sharp division between land andsea. These are not elemental distinctions capable of binding ordetermining human existence. But the sea is still an image that wouldmake no sense without the image of a concrete experience of piracy orsea leaning life – one experience that differs from the empirical so faras it cannot be proved or stabilised, it is never done, and ever to bedone. The sea is beyond appropriation, just like freedom, it ‘can onlybe grasped in a mode of releasing ’.24 Yet both can be grasped, in thismode, and the grasping of them means exactly the highest possibilityof appropriation – the absent ground of any appropriation. The highseas, in terms of international law, belong to no state, whilst the landhas been demarcated, appropriated, distributed, and organizedthrough a very constraining and determining process within theparameters of modern law. Yet, during early modernity, those whodominated this appropriation by releasing, those who have managedto claim this possession of the seas have been able to succeed not onlyin effectively colonizing vast amounts of land (Portugal and Spain),but also in profiting enormously from the appropriation that hadalready taken place (Netherlands and England).

The problem at stake, in this way, touches the sea as one of the‘grounds ’ for the system of appropriation of social-welfare that tookplace at that time. It was through the free seas that free trade becamea global reality. It was also by virtue of the image of a sea beast, theLeviathan, that a territorial sovereign power came to a reconciliationwith freedom, with individual freedom of conscience, and individualappropriative desire – never challenged by Hobbes, on the contrary.25

The concept of Freedom, in this reasoning, owes to the sea as muchas its deconstruction, its de-liberation: ‘the free-trade coincided with

23 Ibid., 85.24 Ibid., 91.25 Clear in his distinction between obedience and belief. See T. Hobbes, Leviathan

(Oxford: OUP, 1996), 248, also 332 and 348.


the free expansion of England ’s industrial and economic superiority.The freedom of the sea and that of world trade merged into a conceptof freedom, the carrier and guardian of which could only be Eng-land ’.26 The sea rules over the world. Modernity itself cannot butmean this sea-like appropriation of the world, this fluidity andliquidity of all spaces, the dislodging of traditions, and the con-struction of nomadic spaces of trade, human relationships, and net-works of communication. This must be complemented by thecoextensive process that the modern world experiences: after free-dom, there comes a decision for the end of freedom. Not only thestate, and the nation-state, but also the subject – subject to and of theIdea – operate this reversal, apprehending the energies liberated bythe effort of liberation.

The problem, thus, turns out to reside not so much in the sea itself(although it is necessary to be aware of the possible image-associationbetween sea and possessive individualism, and capitalism), but in thefree decision to deny it, to abandon it – to abandon the abandon-ment.27 This is exactly where Nancy sees the problem of Evil. Therewould be no need for a decision if freedom were by its own meansexposed to itself, transparent. The law of existence must be enacted sothat freedom be exposed. There must be a decision, either for aninsistence on freedom, a gift of freedom to freedom – in other wordsthe inessential existent decides to be exposed to the abandonment ofbeing that constitutes it – or a denial of freedom, the revengefuldenouncing of the existent by the existent, which appears in turneither as dense, the absolute revolution, or banal, the absolute res-ignation. If this latter decision is free, it also denies the opportunityfor the event and for singularity. Evil happens when freedom happensin a mode of presence, in any of its many manifestations – albeitconceivable to think of the many degrees through which presence canbe effective. The most radical effects of presence – the ruin of anychance for the event, in the camp for instance – can only be felt as arelapse, as a falling back to a condition that had been forsaken bymodernity. Here is the reason for the self-perception of the malaise ofmodernity, the vertigo of the repeated fall – and the relapse is alwaysmore damning than the lapse, the first fall – which conserves somehonour (the honour of foundation, the honour of defiance).28

26 C. Schmitt, Land and Sea (Washington, DC: Plutarch Press, 1997), 52–53.27 J.-L. Nancy, The Birth to Presence (Stanford, CA: Stanford University Press,

1993), 36–47.28 Nancy, ‘‘Lapsus judicii’’, supra n. 18, at 40.


If there is a ‘good ’ decision, this is a decision for the undecidable(that which is opened to decisions), a decision for deliberation, and arejection of the presence of freedom, for the sake of freedom. This isnot a mandatory ethics, an answer to the legal-political problems ofdecision-making. But this is indeed an arch-ethics, upon the extremelimit of all ethics, aimed at exactly the reinvention of the alternativesthat seemed to be foreclosed in political, juridical and ethical terms.29

Nancy ’s chapter seven of the Experience of Freedom is the perfectexample of this attempt to re-activate a realm in which changes canbe made, in which political alternatives are available. For that matter,nothing is more just than recalling the revolutionary tradition. Ifmodernity is inaugurated with the possibility of revolution, as op-posed to the ancient idea of political foundation30, modern politicscannot but express this openness, this space of risk, and this pluralityof ways of organizing the social world. Revolution, however, thatwhich is immeasurable, that which accepts no constraints, must takeplace within the framework of freedom. A revolutionary thoughttoday must take place within the realm of freedom, and of a decisionto freedom. Hence, the social revolution ought to be just, in the senseof striving to strike the just measure between its very excess and theexcessive measure of all existence – the law of freedom, and the law offreedom ’s affirmation. It means a measuring of that – i.e. the pos-sibility of revolution – which is incommensurable. Here Nancy pointsout a way:

Essentially, this excess of freedom, as the very measure of existence, is common. The

community shares freedom ’s excess . . . it has a common measure, but not in thesense of a given measure to which everything is referred: it is common in the sensethat it is the excess of the sharing of existence.31

Only then would a revolutionary praxis be available to the post-war generations. The problem in this respect, however, touches thevery aporetic nature of this program. Revolution, a modern tradition,and politics itself involve measures, calculation. Those who wish toput it forward again should embrace the task of understanding andfinding better ways of negotiating between these two requirements ofthis same tradition: first, the immeasurable spacing of freedom, one

29 For more on an ethics of the existent in relation to law, see P. Fitzpatrick,

‘‘‘Gods would be needed ’: American Empire and the Rule of (International) Law’’,Leiden Journal of International Law, 16 (2003), 444.

30 H. Arendt, On Revolution (London: Faber and Faber, 1963), 13–52.31 Nancy, supra n. 7, at 71–72.


that allows the singular to come, and second the measures, thetechnique, and the very accountable tradition that produces a mea-surable space, without it there is no chance for any event. Theseproblems will be dealt with through the work of Derrida, andafterwards through his uneasiness with regard to the work of Nancy.

A REASONABLE DERRIDA: ROGUES DELIBERATE

Derrida’s work has been used several times to challenging delibera-tive democracy. Derrida himself, though, has never – or perhaps onlyobliquely – dealt with contemporary deliberative theory. When hementioned deliberation it was to give it his own account. In Spectresof Marx he says: ‘Hesitation to take revenge, deliberation’,32 an el-lipse in the context of a reading of Hamlet, and of the time out ofjoint. In this line of thought, deliberation becomes the primary mo-ment of the ethical–political–juridical, or the previous or quasi pre-critical moment that renders a decision possible, in its undecidabilitythat urges for a decision.

ROGUES TO COME

In the context of an address to the rogues, about the rogues, a ref-erence both to freedom and to what we could name an experience ofdeliberation will appear. In more widely known derridean texts,deliberation could be articulated to the waiting condition of thecountryman in Kafka ’s short story, Before the Law.33 He waits,dreams, persists before the law – whereby there might be, along withthe idea that he suffers, another one, a positive one, which can berelated to a passage in The Trial34 where it is suggested that thecountryman could actually have deceived the Guard. By not enteringthe law the countryman gives birth to the law (co-guardian of thelaw), or to the sovereignty of law (even though, there, in the coun-tryman’s disposition, lies the secret for the unconditional, beforesovereignty) – therefore his position should also be seen as the passivedecision, bypassing activity and passivity, a spacing through whichthe event comes, hence the foundation of Law. Ferreting out the roots

32 J. Derrida, Specters of Marx (London: Routledge, 1994), 26.33 J. Derrida, ‘‘Before the Law’’, in Acts of Literature (London: Routledge, 1992),

181–220.34 F. Kafka, The Trial (London, Everyman ’s Library, 1992), 239.


of Kafka’s countryman, the man of the earth, Derrida encounters theradicality of being-before.

In his Voyous (Rogues), Derrida provides neither a text about theinternational law of the rogue state, nor just a rogue answer to therogue states that rule the world. This is a text about the street, thepeople in the street, without qualification, privilege – people beforethe name people had been given, before ‘The People ’. A text on thewheel (roue) and yet it appears as the theme of the turn, round, returnmovement towards oneself, the same. The wheeled person, deprived,detached, taken to the utmost logic of technique in his/her own body– the wheeled person suffers in the torture apparatus of the wheel.35

In a way, rogue means the most fragile, excluded – before the fencesof the town, in the suburbs. Nevertheless, they can equally be con-ceived as the strongest – a marginal etymology resonates voyous toloup-garou, the werewolf; those who own reason itself – when reasonis the reason of the strongest.

This rogue and powerful animal is capable of anything, it is free.Any power or faculty whatsoever is directly connected, in Derrida ’swords, to our idea of freedom: either as in the Greek words eleutheriaor exousia.36 The first, according to a certain interpretation of Platoand Aristotle, should be understood as shared freedom (‘la liberte enpartage ’),37 whereas exousia would be a license, freedom to doeverything, or even licentiousness. This seductive license is what acertain philosophical tradition depicts and criticizes: a license thatallows several different forms of life, in a way that leads democracy tobecome a cheerful, beautiful, and seductive polity – not actually todeserve the name of constitution.

This is where the most interesting and quasi-symmetrical differ-ence between Derrida and Nancy can be portrayed. Derrida, on theone hand, conceives his discourse of a democracy to come asindebted, amongst other things, to that that Plato despised: theplurality of democracy, the undecidability of its very nature;38

35 Derrida, supra n. 2, 30.36 The ancient Indo-European form (e)leudheros meant originally a form of

vegetable growth, Liberty is rooted, then, in a ‘belonging to an ethnic stock desig-nated by a metaphor. Such membership confers a privilege which a stranger and aslave will never possess ’. See E. Benveniste, Indo-European Language and Society

(London: Faber and Faber, 1973), 263–264. Derrida is aware of this predicament ofLiberty. Here, his resistance to liberty is clarified.

37 J. Derrida, supra n. 2, 46.38 Ibid., 47.


whereas, he would not assume any idea of freedom without strongreservations: freedom accounts for a power that reinforces the selfand the same.39 Nancy, on the other hand, as we know, has tried todeconstruct freedom in order to provide it with a contemporary placein politics; but as far as democracy is concerned he who is a demo-crat, by all means (we agree with Derrida),40 approaches the refusalof a relevant contemporary thought on democracy.41 Nevertheless,democratic freedom, the freedom that is shared is a place only knownthrough the common, and this does lie in the core of Nancy ’s thought– a paradox, perhaps, given Derrida ’s discomfort with freedom andhis own engagement with exousia.

Derrida seems to resist any being-in-common, and despite hisallegiance to license, it is clear that the people (rogues) that he elects inthis work do undertake a fundamentally ‘social ’ endeavour. Roguescall for a democracy to come, rogues belong to the world of ademocracy to come, which is far more advanced than an application ofdifferance to democracy, as a polity that is built upon the trace. Thereis something beyond that – which yet is called upon by differance.42 Itis the promise or act of faith in what comes, albeit im-possible, un-touchable by the believer. It is a waiting, or hope, without horizon ofhope, regulative ideal, or even idea or potentiality, and a persistence inthe ‘what if ’, in an ‘if ’.43 Only the im-possible, the unforeseen happensas event that is not comprised in a causal and logical chain of dis-courses.44 This possibility of impossibility is perceived in an uncon-ditional becoming-rogue, unconditional hospitality – also the onlypath for the ‘social ’. This unconditional, incalculable, incommensu-rable event is only thinkable through the measure, and the world ofconditions. In a certain way, it is only the reason of the strongest – law,sovereignty – that opens the space and time for another reason tocome. This is why Derrida calls for a delicate mediation between thesetwo reasons, which would be reasonable.45

39 Ibid., 69/81–83.40 Ibid., 69.41 Nancy, supra n. 7, at 79.42 Derrida, supra n. 2, 53/64.43 J. Derrida, ‘‘University Without Condition’’, in P. Kamuf, ed., Without Alibi

(Stanford: Stanford University Press, 2002), 235.44 Ibid., 123.45 J. Derrida, ‘‘The World of the Enlightenment to Come (Exception, Calculation,

Sovereignty)’’, Research in Phenomenology 33 (2003), 23.


REASONABLE, RATIONAL, UNCONDITIONAL

How does this mediation operate? Derrida offers a few clues. One ofthem is that this ‘reasonable ’ interacts with incompatible demands ofreason that are perfectible, perhaps universal, and that it is aporetic.It is on the basis of this aporia, of this failed way, this radical absenceof sublation that Derrida sees the injunction of the reasonable. This isan aporia that Derrida did not find explicitly exposed in Nancy ’sExperience of Freedom. Although it was there all the time, Nancywould not have dealt adequately with this problem: ‘it is this aporiathat is propagated ‘‘today’’ still, ‘‘right here’’, but without beingavowed as such ’.46 There is no way towards truth, the truth of thematter to be decided, no truth, or definitive truce between the cal-culation and the im-possible, between conditionality and uncondi-tionality. However, things happen between these two rationalities,and one always calls for the other. Let us follow Derrida ’s mainexplanations of the figure of the reasonable, which is an attempt toput forward what he shares with Nancy, namely the thought of theaporia. ‘If I had to attribute a meaning . . . to this well-worn, indeeddiscredited word ‘‘reasonable’’, I would say that ‘‘reasonable’’ is thereasoned and considered wager of a transaction between calculationand the incalculable ’.47

It is a wager; one can infer that it leaves the realm of the rational,or that it acknowledges, in dealing with the rational, that there issomething untouchable to the rational. It is considered; it isthoughtful, heavy as any thought (penser–peser, pensar–pesar),thankful as any thought (denken–danken, thinking–thanking).48

Derrida pursues here a materiality, an openness, and a gravity of thereasonable. Still a certain suspicion, or suspension of the reasonableis operated here. The reasonable carries a history, of which Derrida isaware, and pays respect. This reasonable moment of thought, on theone hand, is hesitation, and carefully deliberates with consideration,the arguments available for deliberation, the arguments that areknown, common, those that announce the conditions for some sort ofshared decision. On the other hand, but by the same move of thought,the reasonable allows an address to the other, and as such it conveyscredit in this Pascalien wager. But he carries on, at a later moment ofthe text; ‘To be responsible, to keep within reason [garder raison],

46 Derrida, supra n. 2, 75.47 Derrida, supra n. 45, at 42.48 See Derrida, supra n. 6, at 333.


would be to invent maxims of transaction for deciding between twojust as rational and universal but contradictory exigencies of reasonas well as its enlightenment ’.49

This is the strange home of reason. Reason, strange to itself, re-quires two different grammars, two different rational and universalexigencies. Yet it is this other reason, or this same reason underanother perspective, which seems to be missing: the capacity to in-vent, and one can only invent the im-possible. This im-possible seemsto be able to provide all the answers; it alone saves reason, one mightsay. However, that which is im-possible, the event, has a decision tomake, there is a choice before any singularity, any use of singularity,one that is placed in the world, and also universalizable. This choice isnot even foreign to reason – although it is foreign to the rational.There is a spark of reason in the calculation that opens itself to thesingular, to the outburst of the singular, avoiding nothingness and theimmanence of resignation. There is also a spark of reason in theunconditional singularity that opens itself to conditions, as soon as itappears. The custodian of reason exceeds the rational, and this excessposes a choice, and an abyss before the rational, and it is onlythinkable through the stretched position of this choice. It comes be-fore the subject, before the nation-state, and human rights, before theuniversal, and the perfectible:

The reasonable would be that which, in conveying pre-ference itself in all that itconveys [portant dans sa portee la pre-ference meme], will always be preferable – and

thus irreducible to the rational that it exceeds . . . The reasonable . . . would be arationality that takes account of the incalculable so as to give an account of it, therewhere it appears impossible, so as to account for or reckon with it, that is to say, withthe event of what or who comes.50

How to understand this ‘with ’? With rationality, with singularity,with no matter what or whom, an exposure to what comes – how canthe ‘with ’ itself happen? The unconditional to come is rational. It isunconditional, it is necessary, and it is universal (or the opportunityof the universal. The conditional calculation or proportion is ra-tional, again necessary and universal. That which guards the rational,however, that which wraps the rational from within, that is unnec-essary, contingent, topical, and free. That is the site of the reasonable,the site of a reasonable faith. A reasonable faith that is only possibleby means of such a hiatus within reason. In every rational act, in

49 Derrida, supra n, 45, at 49.50 Ibid., 49–50.


every ratio, proportion there will always be a promise, an act ofbelief, and the moment before any conveyance, or any message, thatis already a decision, pre-ference. This very act accounts for thepossibility of the social bond, the possibility of ‘the with ’.

Derrida attempts to point out a difficult distinction between thereasonable and the rational. Since the beginning of the text, Derridasets the tone of the issue with a recourse to Latin etymology: ‘reormeans I believe, I think, I calculate, and ratio: reason or calculation,account or proportion ’.51 In addition, Derrida proposes an ambi-tious reading of Plato, Kant, and Husserl in order to identify theunconditional or incalculable rationality in the core of Westernphilosophical canon: ‘a rational and rigorous incalculability pre-sented itself as such in the greatest tradition of rational idealism ’.52

This as such, though, is the key to understanding the fiction and thefaith that lies behind and within any rational assertion. But thiscannot be understood without regard to what we have alreadymentioned, the slight distinction between the fictions of the ‘as such ’and the ‘as if ’, and their most radical element: the ‘what if ’, and the‘perhaps in this if ’ – that exceeds all conditionality. Yet Derrida ’sconcern with the reasonable can be illustrated by his peculiar view ofthe work of Jean-Luc Nancy. Moreover, through this encounter, wewill be able to expand on the deliberativeness of the reasonable, andits dependence on a certain freedom of and in law.

‘I WOULD DISSIMULATE IN ANY CASE LESS THAN HE DOES ’53

Derrida has indeed provided us with a prudential world. But notonly in the sense that we might have expected: not only the concernwith evil, as in justice ’s and freedom ’s proximity to evil, but alsothe concern with what is so central to Nancy: the ‘with ’, or thesocial bond. In both cases, Derrida offers a thought that posesserious objections to Nancy ’s work, but it can also be seen ascomplementary and useful for a further development of Nancy ’saccount of freedom and the deliberation of freedom. Now we shallbriefly assess these two points, before a further discussion of theopportunity of deliberation.

51 Ibid., 11.52 Ibid., 25.53 Derrida, supra n. 2, at 76.


The quotation that appears above shows the unavoidable need ofdissimulation, fiction perhaps. Derrida speaks about the need of agreater intellectual frankness. But he did not say that this is for thesake of honesty. Dissimulation should not be abused. It is the men-dacious core of common sense – for love of fiction – that Derridaachieves with his obliqueness. Neither he nor Nancy looks straight atthe aporia. The aporia is unseeable, or if seen, it is lethal. Yet,Derrida grasps the aporia through a wise device. He evokes thetechnique of mediation, the technique of translation, the technique,beyond technique, of believing – thence, Nancy ’s aporia is workedout with another aporia. Here is where we dwell, if something otherthan what is (as presence) is (as factuality) to come. The fact of thematter is that as much as the aporia should not be dissimulated,neither should dissimulation – this is the sense of this beautiful andoblique confession: ‘I would dissimulate. . . ’.

This is also the unavowed issue of his Voyous: an exposure of theroguishness of the nation-state, an exposure of the roguishness ofthe people, and above all the exposure of Derrida ’s own roguish-ness: ‘my maternal grandmother called me often, feigning to com-plain about me, when I was a child, ‘‘rogue [voyou], get going[va]’’ ’.54 But there is something good in this acquiescence to evil – inthe rogues that we are. There is a belief that there may be somedignity in this armature of dissimulation – that it is possible to savethe honour of reason.55 This dignity, and this honour are found inthe sane core of mendacity, of any fiction, of dissimulation, and thisis expressed by the very opportunity of the what if that only therecan be forged.

WhenDerrida evokes the common, common sense, and his very ownunderstanding of the social bond, he is also saying to Nancy – oh myfriend, it is just there, the secret of the aporia, where you always thought itwas, in the common space that we, perhaps, share out. This common,however, is not available to any community, as we have agreed,56 neither to

54 Ibid., 115.55 Derrida, supra n. 45, at 10.56 For Derrida ’s criticism of community, in the context of his reading of

Nietzsche, and articulated with a criticism of fraternity that he regrets to find both inNietzsche and in the work of Bataille, Blanchot, and Nancy, see J. Derrida, Politicsof Friendship (London; Verso, 1997), 46–48, 80–82, 297–299, 306. For Nancy ’s at-

tempt to avoid the use of community and its relation to friendship see J.-L. Nancy,‘‘The Confronted Community’’, Postcolonial Studies, 6/1 (2003), 31–32.


the common itself, nor to fraternity (there our disagreement could not bestronger).57 The space we share, our bond, if there is such a thing – alongwith the abyss that separates us – it comes but through an expression, atouch of faith.AndDerridahas toappeal to this commonality, heappealsto ‘good sense ’ as in explaining his argument on the unconditional: ‘Iappeal . . . to good sense itself, to common sense, thatmostwidely sharedthing in theworld ’58 (– andwhat an irony,might have rebukedNancy) –there is no other way to address these infinite issues, no alibi. This spaceof the social bond is only possible throughwhat fills the gap between thetwo reasons: ‘the hiatus between these two equally rational postulationsof reason . . .would alsobe the irreducible spacing of the very faith, creditor belief without which there would be no social bond, no address to theother. . . ’.59

This social bond, this sharing out of what is incommensurable,Nancy has once called fraternity. It appears as exactly that immea-surable measure, as what Derrida would call the reasonable. Derridarejects this fraternity, though. In Nancy ’s text the term is justified intwo major ways. First, it is a matter of reactivating the revolutionarytradition, which would have this term as one of its dearest expres-sions. Second, Nancy sees there not the Christian common substance,the matter of communion, or the natural bond, but a community ofthose ‘whose Parent [in the French original, Pere, hence Father], orcommon substance has disappeared ’.60 Derrida has critiqued that onthe basis of his understanding of the phallogocentric origins of fra-ternity. In a political context tainted by the hegemony of thepatriarchal, and familial models, any ‘frater ’ implies the brother, thefamily, the natural bonds, the here Christian, but also in othercontexts, Roman, and Greek attachments to the other as equal andsubsumed to the ‘self ’: ‘I would simply be concerned, as to politicsand democracy, to see fraternalism at least being tempted to agenealogical inclination that drives back to autochthony, nation, evenif not to nature, in any case to birth ’.61

It could be remembered that in Derrida, this very insistence on thesocial bond, that which addresses the aporia, this can be found in

57 Derrida ’s criticism of fraternity in relation to Nancy ’s work is more explicit in

his Voyous, supra n. 2, 85–93.58 Derrida, supra n. 45, at 39.59 Ibid., 44.60 Nancy, supra n. 7, at 72; J.-L. Nancy, L ’Experience de la liberte (Paris: Galilee,

1988), 97.61 Derrida, supra n. 2, at 92.


what he calls friendship – there he tries to escape fraternity.62

Friendship would favour a different experience of being together that,with Blanchot and Nietzsche, might offer an alternative to thehegemonic models that we face today. In this threatening relation-ship, dissymmetry prevails over equality, over sameness. This dis-symmetry is introduced by love, by love of being together in spite ofall incommunicability, all radical otherness. That is why Derrida usesthe term aimance63 a loving friendship – one that is eventuallypervaded by danger, by cruelty, by sexuality. Friendship is always achoice, for one and not the other, and a faith in the possibility of thesocial, and that our dividing abyss might be witnessed together. Andif there will always be, if there must be a choice in friendship, for one,and not another, it is nourished by an exposure. But an exposure towhom? To whoever comes, no matter whom. This is the way tohandle the all powerfulness of the one – the sovereign one, either Godor subject. Derrida evokes ‘another truth of the democratic, the truthof the other, of the heterogeneous, of the dissymmetrical, of thedisseminating multiplicity, of the anonymous whoever, of the nomatter whom, of each one, undetermined ’.64 No expected brothers,natural bonds, or bonds of soil, citizens, patriots, nationals – such isthe arrival of the unexpected, ex-position.

DE-LIBERATION

De-liberation – this is what deliberative theory misses today. Athought whose density flees the already old and tiresome contradic-tion between human rights and popular sovereignty, freedom of themoderns and freedom of the ancients. All deliberative theoristshave attempted to resolve this contradiction, either by finding itsArchimedean point, or through a number of theoretic-fictionaldevices. It is time to abandon it with contempt. Of course, that it canbe said, and should be said that human rights and popular sover-eignty will persist as important incommensurable discourses that

62 Here indeed one could speak of a difference of style between Derrida andNancy, especially with regard to the proper names of the onto-theological tradition:from confrontation to evasion, or dislocation – from audaciousness to prudence. . .See F. Guibal and J.-C. Martin, Sens en tous sens – Autour des travaux de Jean-LucNancy (Paris: Galilee, 2004), 167–168.

63 Derrida, supra n. 56, at 69.64 Derrida, supra n. 2, at 35.


reach different articulations in liberal democratic societies.65 How-ever, it is not their paradox that underlies our concern in this text, it iswhat they share. They share a discourse of presence. The subject ispraised as the one who is present to itself, equal to itself, absolute,inviolable as a sacred, unconditional micro-polis, inwards-oriented,whereas the people are understood as having some unitary will, someunitary matter, historical or sociological, that binds one to the other,and excludes those who are deprived of it. In both cases, freedom, aswe understand here, finds no spacing.

The subject, this free subject, on the one hand, and the autochthonmove of the self, back to itself, this power of the determinant, on theother hand, and their interplay, here rests Derrida ’s concerns withthe use of the term freedom. He is correct in his prudence. And as wesaw this is the sort of prudence that, however, asks for imprudence.But Nancy, the audacious, has invoked the name of the political in anall too other way; he has dared to say revolution in a time when thiswas/is foreclosed. He has not only written about freedom, but alsogiven himself, in his work, to the risk of freedom. This act should notbe forgotten, neither the act, the unusual fact, of freedom. How toarticulate these two moments? The audacious spell of freedom thatappeals to the facts, and the prudent, thoughtful reason that appealsto the event? Deliberation arises, in this manner, as the chora of thisencounter. It means the unlocatable space, and the disjointed timewhere/when these two thoughts touch each other – a kiss through agaze, as intense and exposed that they meet when day and night donot matter any more.66

In deliberation, we evoke freedom, this spacing and exposure ofthe law of existence, or the law of the law that Nancy sees as traced bysingularities, but at the same time it calls for the deconstruction of theway freedom has been put forward, the history of freedom, either assubjective faculty, or power of the same. In deliberation, we alsoevoke decision, the mad decision, and the singular moment that is tocome by virtue of an exigency of reason. We call for the reasonableand what the reasonable produces, this moment before the law, readyto deconstruct exceptional decisionism. We insist on the deliberativeperhaps, here and now.

Deliberation, furthermore, should be taken as the liberation fromthe hegemonic bonds of our political models, from any model of

65 See Mouffe, supra n. 4, at 5–10.66 This is the sort of gift that Derrida intended to offer to Nancy. Cf. Derrida,

supra n. 6, 11–12, 326–327.


legitimacy. Deliberation designates another mode of political theory,detached from any telos, and from the sovereignty of the theoreticalidea. With deliberation, the discourses of people or rights are noteffaced; they thrive in their infinite interplay, and in their multiplealliances. What we propose is that around and within them – fromtheir mutual core, freedom, for good and evil – another discourse isannounced, one that challenges the legimating structures of oppres-sion, one that is at the service of social movements, at the service ofthe political, as another writing of politics, when saying revolution isnot foreclosed. Plunged into thought, deliberation provides anunderstanding of the juridico-political, in which both reasons come tothe fore, even though without forsaking their shelter, the reasonable,and their basic law, with its dissimulative fiction. De-liberationhappens when the shelter of reason is exposed, De-liberation happenswhen the law is exposed.

PABLO SANGES GHETTI

School of Law, BirkbeckUniversity of LondonMalet Street, BloomsburyWC 1E 7HX, LondonUKE-mail: [email protected]


laws of deliberation: from audaciousness to prudence... and back

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