Rawls and Derrida on the Historicity of Constitutional Democracy and

International Justice

Johan van der Walt

Introduction

This article explores the different perspectives that the political philosophies of John

Rawls and Jacques Derrida offer us on the question of the possibility of constitutional democracy

and international justice. As will become clear in section I, I also understand this exploration as a

response to the challenge posed to Henk Botha and me in an article in this journal by Frank

Michelman in 2002.1

The crucial questions put to Botha and me in that article were these: To what extent do

we really part ways with Rawlsian liberalism? And if we do not, how can we consistently claim

to be able to sever the demand for the reasonable justification of all instances of governmental

coercion in liberal societies from the demands of justice, as we did in an article in this journal in

2000?2

Sections I and II articulate my response to these questions. They also serve to make clear

why I believe the comparison between Rawls and Derrida undertaken in this article is pertinent

for political and legal theory. Section III begins by pointing out an apparent resonance between

Derrida and Rawls on the question of the possibility of constitutional democracy and justice.

This resonance, however, dissipates rapidly when one takes into account the obvious differences

between the moral psychologies and understandings of history that underlie Derrida and Rawls’

respective responses to the possibility of justice and democracy. The rest of section III explores

these different moral psychologies in Rawls and Derrida’s thought. It does so in order to prepare

the ground for the comparative reflection in section IV of the two key concepts that respectively

mark their thinking on justice and democracy, namely, public reason and hospitality. The point

of this reflection is not to play off Rawls against Derrida or vice versa so as to decide or argue

which of these two philosophers “should be followed.” The completely different planes of

political thinking on which they work and the completely different questions that they address

render the idea of choosing between them inane. The point is rather to illuminate the

incommensurability between their respective thoughts on politics so as to highlight what remains

largely unsaid in each of their approaches to political thought. My hope is in fact that the article

will contribute to a more productive discussion between Rawlsian and Derridean scholars,

because both these thinkers respectively addressed crucial concerns that the other only addressed

marginally or superficially. Section V should make this clear through concluding the article with

an explication of Rawls’ thinking as mostly concerned with the immanence of normative ideals

and Derrida’s thinking as mostly concerned with the imminence or sheer historicity of human

existence. This section ends with the contention that political and legal theory should be attentive

to both the immanence of normative ideals and the imminence of human existence. In other

words, political theory should be attentive to the full complexity of the “immimanence” through

which normative ideals and existential historicity condition our political responsibility and to the

courage that this immimanence exacts from us.3

1. Delinking Justice and Justification Yet Again

Frank Michelman posed the following challenge to Henk Botha and me in this journal in 2002:

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“VWB [Van der Walt and Botha] imagine persons in society just as political liberals

do: persons as conscious of themselves and cognizant of others as free and equal;

society as rent by deep ethical conflict; positive legal ordering as inevitable. What is

more, VWB share with political liberals the resulting justificational anxiety. (As we’ve

noted, what they specifically decry is not the urge to justification but rather the urge to

connect justification with justice.) Where, then, exactly do VWB part company from

political liberalism?4

I wonder whether they really do. In the end, Rawls takes his stand on the perception

that the possibility of political justification, in modern pluralist conditions, among

participants reciprocally recognized as free and equal, depends on everyone’s

acceptance of a commitment to give reasons for their constitutional interpretations –

their human rights interpretations – that they in all sincerity believe can be found

reasonable by reasonable and rational, free and equal others. Do VWB differ with that?

If they do differ, then how can they continue to speak, as they do, of any discourse of

justification (be it only by disavowing justice)? What else, what less could justification

possibly be? And if they do not differ, then how can they claim, any more than Rawls

would dream of claiming, to have given up the idea of justification by justice? By

which I mean justice in the most pristinely proceduralized, political liberal sense of

adherence to a principle of reciprocity of recognition of everyone as free and equal (if

you want to call that principle “procedural”), which reflects a substantive principle (if

you want to call this principle “substantive”) of equal moral worth or dignity of every

person.”5

To answer for myself to the first question put to us in these passages, but I am confident

that my friend Henk Botha will agree, I do not differ with the Rawlsian understanding of

justification. This leaves me to confront the second question: How can we really claim to have

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given up the idea of justification by justice? How can one delink justice from justification? This

is the really the question that requires an answer, because Michelman surely stresses the point:

Inescapably, justification imports ‘because this act is an act that you must admit I can

reasonably defend before you as fully considerate of everyone as free and equal, as

therefore all that you or anyone reasonably can demand in our modern conditions of

conflict and disagreement, supposing us all to be not only free but moral, not only

rational but reasonable.’ But according to political liberalism as I come to understand it,

that is just about tantamount to calling the act a just one. All that is missing is a denial

that the act in question violates the uncontested central range of any basic liberty. In other

words: According to political liberalism, a commitment to respect those central ranges,

and furthermore, to refrain from political acts that one cannot sincerely explain as fully

considerate of each and all (etc.), is not a poor excuse for justice; it is justice.6

I could begin to say that Botha and I never considered justification to be a poor excuse

for justice. We conceived of justification as something that had to live up to the requirements for

a good excuse for justice, in fact, to live up to the demands of the very best excuse for justice that

human beings are capable of. But let me move on to the crucial question of whether justification

is indeed not just an excuse for justice, but is in fact a matter of justice itself.

1Notes

? Frank Michelman, “Postmodernism, Proceduralism, and Constitutional Justice: A comment on van der Walt and Botha,” Constellations 9 (2002): 246-262.

2 Johan van der Walt and Henk Botha, “Democracy and Rights in South Africa: Beyond a Constitutional Culture of Justification,” Constellations 7 (2000): 341-362.

3 “Immimanence” is a neologistic conjunction of the words “imminence” and “immanence” that I have begun to use in recent articles in order to describe and discuss the differential junction between normative and existential concerns in legal in political theory. Cf. especially Van der Walt “Immimanence; Law’s Language Lesson,” Law Culture and the Humanities 2 (2006): 2-16. I request the reader’s patience with the stylistic awkwardness of the word, so as to allow for the economic efficiency with which it names the critical divide and junction between normativity and existence.

4 Michelman, “Postmodernism, Proceduralism, and Constitutional Justice,” 259.5 Ibid, 259-260.6 Ibid, 260-261.

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Michelman appears to assume in the passages quoted above that an endorsement of

Rawls’ ideas regarding justification and public reason necessarily commits one to an

endorsement of Rawls’ equation of public reason and justice. The passages appear to suggest that

Botha and I have painted ourselves into the corner of logical inconsistency by endorsing the need

for justification, on the one hand, but refusing to equate justification with justice as Rawlsian

liberals do, on the other. I do not think that this suggestion is warranted. There is no logical

impediment to endorsing Rawls’ thought on one count and rejecting it on another if there is no

necessary or analytical (in the Kantian sense) link between these two counts. To aver that “a

justified or justifiable act is a just act” may appear at first glance to be an analytical statement

because of the etymological and linguistic kinship between the words “justification” and

“justice.” But to aver that “a justified or justifiable act is a just act” is not like averring “a

geometrical circle is perfectly round” or “a triangle has three corners.” One way of

understanding what Botha and I endeavoured to do in our article is to clear up the confused

conflation of the etymological, the linguistic and the analytical in the equation between “justified

or justifiable acts” and “just acts.”

To expand the etymological and linguistic relation between justification and justice in

order to turn it into an analytical relation, one would need a sufficiently simple and transparent

definition of justice from which clear logical inferences can be drawn. It would then make sense

to call these logical inferences “justifications.” Do Rawlsian liberals really claim to have cracked

the ageless question of true and truly universal justice in such a geometrically or mathematically

transparent fashion? I would be surprised and not just a little incredulous if they do. Rawls, for

one, has made it clear that his theory of justice does not provide us with a metaphysical

definition of justice that applies to all socio-political paradigms.7 It offers us a very specific

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political definition of justice, namely a political liberal definition of justice. And it is clear from

Michelman’s own words in the passages above that his own argument is also squarely based on

this very specific understanding of justice, this political liberal understanding of justice. Twice

do we encounter the qualification “according to political liberalism” in the exposition of the third

passage quoted above.

Now, the position that Botha and I took in our article is very simple to explain in view of

these considerations. Had we been political liberals and had we endorsed a political liberal

definition of justice, we would surely have been logically disqualified from arguing that

justification always takes place with reference to unjust grounds in the way we did then. This is

so because we offered no real argument to show that justification invariably or at least often

enough fails to comply with the demands of political liberal justice, as I believe I do in this

article. But we never claimed to share with political liberals their definition of justice. Nothing

therefore prohibited us from endorsing the typical liberal concern with justification in public

discourse, but nevertheless refusing to accept that such justification constitutes justice. We

indeed refused to equate justification with justice because we either had a different

understanding of justice or we had no particular definition of justice. But we nevertheless

considered what regularly passes as justification of an act before everyone as “fully considerate

of everyone as free in equal”8 in the world we live in not to live up to the immense normative,

emotional and existential expectations that are raised whenever this word “justice” is uttered.

And all too often, we might have felt, it does not even live up to the least of the expectations

raised when this word is uttered.

7 Cf. the essay “Justice as Fairness: Political not Metaphysical” in Rawls Collected Papers (Cambridge, Massachusetts: Harvard University Press, 1999), 388-414.8 Michelman, “Postmodernism, Proceduralism, and Constitutional Justice,” 260.

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So Michelman’s question to us should not have been how Van der Walt and Botha can

endorse the political liberal concern with justification before everyone as considerate of everyone

as free and equal, but nevertheless reject the political liberal view that such justification

constitutes justice, as if this cannot be done without falling into some kind of logical

inconsistency. The question should rather have been why we reject the political liberal

conviction that such justification constitutes justice, while clearly endorsing the need for such

justification in public discourse. I would like to believe that our article did answer this question

to some extent. I would like to believe that especially our discussion of the case of Soobramoney

v Minister of Health, Kwazulu Natal9 provided some explanation for our concern with the

injustice of justification. I shall nevertheless address this question again in what follows. And I

shall partly stagger the argument. I shall argue in the first part of the next section that the link

between justice and justification remains spurious even when viewed from within the confines of

a more narrowly defined political liberal justice. I shall do this by illuminating the inevitable

failures of political liberal justice that political liberalism has to concede whenever it comes to

deal with serious cases of socio-political dissent or conflict.

Serious cases of socio-political dissent and conflict expose the spuriousness of a

surreptitious equation at the root of political liberalism, namely the equation between its concern

with an act that can be reasonably defended before everyone concerned as fully considerate of

everyone as free and equal and an act that truly treats everyone as free and equal. All cases of

9 (1977) 12 BCLR 1696 (CC). The case concerned Mr. Soobramoney’s claim in the Constitutional Court of South Africa that the rights to life and healthcare entrenched in the South African Constitution obliged the government to provide him with urgently needed kidney dialysis treatment for which he could not pay himself. The health authorities of Kwazulu Natal (the province in which Mr. Soobramoney lived) argued in response that resources were limited and that kidney dialysis treatment had to be restricted to patients whose overall health condition justified the treatment. Mr. Soobramoney had a serious heart condition on top of his kidney problems which disqualified him from receiving the dialysis treatment from the state. The Constitutional Court accepted the arguments of the health authorities and dismissed Mr. Soobramoney’s claim. Mr. Soobramoney died a week after the judgment was passed.

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serious social dissent expose an unbridgeable and abyssal gap between these distinctly different

kinds of acts. An aporetic gap, Derrida might have called it.10 I shall show below that Rawls was

aware of this gap, but only paid marginal attention to it. This gap, however – which is really the

gap between formal (or legal) and substantive justice with which political and legal theory have

been familiar for ages11 – does pose a major and not just a marginal problem for political

liberalism. For how can a truly liberal political theory of justice sincerely maintain that it takes

the concern with every one as free and equal seriously when it more or less complacently – or

more or less anxiously (what difference does it make?) – conceptually resigns itself to the fact

that an act that is reasonably defendable before everyone as considerate of everyone as free and

equal does not add up to actual treatment of everyone as free and equal in cases when it really

matters? This resignation, I shall argue below, exposes political liberalism to accusations of the

worst political cynicism thinkable, namely the cynicism that defends political expedience in the

name of the respect for everyone as free and equal.

I shall illuminate this crack in the foundations of liberalism under the two subheadings of

the following section, namely, the failure of public reason and the failure to comply with public

reason. Under the failure of public reason I shall elaborate the point that public reason often fails

to resolve social disputes because both parties to the dispute can convincingly state their claims

in terms of public reason. Under the failure to comply with public reason I shall elaborate the

point that people or groups of people often fail or refuse to comply with the demands of public

10 As he basically did with reference to Nancy’s notion of the sharing of liberty as a measuring of the immeasurable and the incommensurable. Cf. Derrida, Voyous (Paris: Galilée, 2003), 73-76. Derrida’s comment on Nancy on these pages is basically that Nancy does not acknowledge the aporetic nature of this measuring of the immeasurable and incommensurable: “Nancy ne parlerait pas, lui, d’aporie, je crois, là où pourtant ses formulations ressemblement, à mes yeux, à ce que j’appelle, moi, aporie.”

11 In terms of which Botha’s and my argument would have been the well known one that the formal justice reflected in justification does not amount to true justice if it does not effect substantive justice.

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reason in ways that render the appeal to public reason against their unreasonableness, at best,

politically naïve, and at worst, self-serving and expedient, if not vindictive.

II. The Crack in the Foundations of Liberalism

The failure of public reason

Public reason cannot be said to fail when one of the parties to a serious dispute simply fails or

refuses to abide by public reason. Cases in which conflict is fuelled by one party’s failure or

refusal to abide by public reason do not constitute failures of public reason, but failures or

refusals to comply with public reason to which I turn under the next sub-heading below. Failures

of public reason concern those cases where public reason fails to resolve a dispute despite and

exactly because of the fact that both parties to the dispute can be said to comply with the

demands of public reason.

As I show in more detail in section III, Rawls himself admits that public reason fails

when both parties to a dispute abide by the requirements of public reason, that is, when both

parties have claims that can be reasonably defended before the other as fully considerate of

everyone as free and equal. When this happens, one of the parties will have to be coerced to

submit to the other’s version of public reason, and this coercion can of course clearly no longer

be justified in terms of public reason and the understanding of justice linked to it. In other words,

public reason often or at least sometimes runs out even in terms of Rawls’ own theory of public

reason. And when this happens, cooperation must be demanded and coercion must be justified

with reference to considerations external to public reason. As I show below, Rawls argues that

dissidents must in such cases “be urged” not to let this conflict undermine the extent to which we

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can otherwise rely on public reason. They must “be urged” not to let the conflict affect our

agreement over constitutional essentials and matters of public justice.

There is an obvious conceptual or logical gap between “persuading someone in terms of

principles of public reason that are held in common” and “persuading someone not to jeopardise

the principles of public reason that are held in common when that person cannot be persuaded in

terms of these principles.” The first act of persuasion turns on a normative discourse. The second

turns on a non-normative or extra-normative discourse that aims to move someone rhetorically,

psychologically and existentially to do or not to do something in view of the failure of normative

discourse to accomplish this persuasion.12 Rawls’ use of the word “urge” in this context reflects

the difference between these acts of persuasion aptly. It also makes it abundantly clear that

whatever element of “justification” one would want to attach to or associate with this “urging,”

this element of justification can at most be said to take place for the sake of Rawls’ principles of

justice and not in terms of these principles. And this “justification for the sake of” clearly

introduces a normative and existential remoteness between the failing principles of justice and

the decision to nevertheless abide by them that effectively delinks the decision from the

normative principles of justice that it hopes to safeguard.13 Effective urging, that is, effective

rhetorical, psychological and existential persuasion may move the losing party to bridge or close

– existentially or psychologically – the gap between the failing principles of public reason and

the decision to abide by them. But it should be clear that no amount of reasoning in terms of

Rawls’ political liberal principles of justice will ever serve to close or bridge the normative gap

12 For a more detailed account of the relation between rhetorical and existential persuasion, cf. Van der Walt Immimanence (fn. 3 above).

13 This delinking becomes the more vivid the more acutely one keeps in mind the incircumventable existential and psychological resistance that has to be overcome to abide by principles of justice that have failed to honour one’s very reliance on these principles. Realistically speaking, the “urging” that Rawls’ invokes in this regard amounts to nothing more than the endeavour to affect a more or less silent self-coercion that would avoid the politically dangerous unmasking of the crisis of normativity that inevitably takes place with every instance of external coercion.

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that has opened here between the failing principles of public reason and the decision to

nevertheless abide by them. Whatever happens in this gap cannot be explained in terms of public

reason.

To be sure, the normative considerations embodied in public reason can still play a role in

the motivational urging not to jeopardise the general survival of public reason when public

reason fails in a particular case, but they can no longer play a justifying role under these

considerations. They can only play a motivational role. And the crisis that this transformation of

public reason from a normative to a motivational consideration causes for public reason should

be clear. Public reason now not only has to admit to not actually or substantively treating

everyone as free and equal, it must also motivate the very person who is not substantively treated

as free and equal to continue to respect it. On what basis can it do so? It can basically only do so

on the basis of a utilitarian argument, that is, by imparting the message that more rather than

fewer individuals will suffer from a general failure to respect public reason and that even the

very person who in this particular case cannot enjoy the protection of public reason can therefore

still expect to be generally better off under circumstances where public reason is generally

respected.

It is doubtful that a person whose life chances are being seriously affected negatively in

the here and now will be impressed by a general utilitarian argument. But the crisis that this

resort to utilitarian reason causes for political liberalism, relates only superficially to the

weakness of the argument under these particular circumstances. No, the real and fundamental

crisis that any such resort to utilitarian reasoning would cause for political liberalism relates to

the way such reasoning would deprive it of any conceptual ground on the basis of which it could

distinguish itself from sheer political expedience of any sort. The most autocratic of political

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rulers can offer the argument that his subjects would generally be better off if they would respect

his rule irrespective of the specific occasions on which he unfortunately has to impair their

freedom and equality. Political liberals would surely wish to distinguish themselves from such

rulers on more than just utilitarian grounds, utilitarian grounds, one must add, that will always be

rather shaky.

Having laboured the point somewhat, one can now state concisely the nature of the crisis

that liberalism faces in cases where public reason fails to resolve serious social conflict as a

result of both parties to the conflict being able to state their claims in terms of public reason.

These cases expose an abyssal gap between the formal defensibility of an act as reasonable or

justifiable before everyone as considerate of everyone as free and equal and the actual or

substantive treatment of everyone as free and equal. And this gap deprives political liberalism of

all conceptual grounds on the basis of which it can distinguish itself from “less decent” forms of

political expedience. And to the extent that it reconciles itself with this position without honestly

facing up to it, that is, without facing up to the frequent if not invariable unjustness of the

justifications it offers in the name of public reason, it exposes itself to accusations of the worst

political cynicism thinkable, namely, the cynicism of justifying political expedience in the name

of a sincere respect for everyone as free and equal.14

One would have thought that the true liberal would in these cases prefer not to lose the

conceptual grounds of defence against such accusations by taking the conceptually less cynical

position of admitting that the justification required by public reason often sadly but inevitably

turns on grounds that are unjust, unjust even in terms of political liberal justice.15 Rawls, I shall

14 One should recall Schmitt’s cynicism regarding the cynical invocation of “humanity” as a just cause of war where he cites Proudhon’s comment that “those who cry ‘humanity’ wish to cheat”. Cf. Carl Schmitt, Der Begriff des Politischen (Berlin: Duncker & Humblot, 1996), 55. The point here is not to share Schmitt’s cynicism, but to avoid it. Those who invoke the equality and liberty of everyone concerned expose themselves to exactly this kind of cynical accusation of cynicism whenever they do no own up to the ways in which the very attempt to safeguard equal liberty invariably violates the equal liberty it seeks to safeguard.

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argue below, can be shown to have effectively done this, albeit it only in marginal comments that

many would argue do not play a central role in his work. I shall nevertheless highlight these

comments to show what is interesting in Rawls’ work, not only from a strictly Derridean

perspective, but also and especially from the immimanent position between Rawls and Derrida

that I develop towards the end of this article.

The failure to comply with public reason

The discussion above of the failure of public reason turned on cases where justification

as such is embroiled in a crisis because both parties to the dispute can justify their acts before the

other as defendable before everyone concerned as considerate of everyone as free and equal. In

the cases that will be discussed now, justification appears not to be in a crisis at all, given the

patent lack of justification for the acts of one of the parties. Justification would appear to be

simple in these cases, given one party’s patent failure to comply with public reason.16 The

obvious examples that come to mind here are the justification in terms of international or

national law of military or police action against a hostile rogue government or hostile rogue

political movement that rejects the principles of public reason and the justification of the

conviction and sentence of a remorseless and hardened criminal who shows only contempt for

the law. In the argument that follows, I shall refer to all three of these, the rogue hostile

government, the rogue political movement and the remorseless and contemptuous criminal as the

deviant other.

15 One might object by arguing that justification in these cases does not turn on unjust grounds but simply on non-just grounds, but the incircumventible social reality that only one of the two “reasonable” parties to an irresolvable dispute will be required to shoulder the burden of this “non-justice,” renders the distinction between injustice and non-justice meaningless in these cases.

16 I wish to make clear that I do not think that the distinction between the failure of public reason and the failure to comply with public reason is watertight, but it is instructive to work with this distinction as if it is.

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In these cases, one could be tempted to indeed link justification to justice because of the

apparently unproblematic nature of the justification involved. “Something that is so clearly and

simply justifiable must surely also be just” is a sentiment one can easily imagine to prevail in

these cases. I nevertheless wish to show in what follows that here too does the link between

justice and justification run into serious difficulty. It does so because of the conceptual dismissal

of alternative and possibly better ways of dealing with the deviant other that is evident in every

case of unproblematic justification, for such justification cannot be seen as unproblematic if it is

in the slightest degree haunted by the myriad of ways in which the unreasonableness of the other

can also be addressed. At issue under this question of the myriad of measures that can be taken

against the deviant other is also the question of the correct measure of the measures taken. If

violent opposition or suppression is chosen as the correct measure to be taken, how much

violence must one decide upon? How much violence will be just enough and not too much? And

if it is possible to assess this “just enough,” how can one assure that the violence unleashed can

be restricted to this “just enough” so that no one – no enemy soldier, insurgent, “terrorist,” or

civilian – caught up in crossfire dies or suffers fortuitously and unjustifiably? What is the correct

measure of punishment that exactly measures up to the remorseless deviance of the convicted

criminal and the threat this deviance poses to society? What is the correct measure of punishment

and violent suppression that also reflects accurately the possible degrees of systemic complicity

in the deviance of the other?

If these questions were to be answered with due consideration of the last microscopic

detail that counts when the question of the appropriate measure and the correct measure of the

appropriate measure to be taken against the deviant other is concerned, no decision would ever

be taken, let alone taken in time. So here too the political liberal understanding of justification in

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terms of defensibility before everyone as considerate of everyone as free and equal can clearly

be seen not to extend to the actual treatment of everyone as free and equal. It can never be said

that, considering the exact degree to which violent suppression, punishment or other forms of

unequal treatment match and thus only counter-act the deviance of the deviant other and the

threat that this deviance poses to decent others, the deviant other is still in essence being treated

as an individual that is as free and as equal as everyone else. One talks to oneself and justifies

only oneself when one raises normative arguments in the face of deviant or rogue others. This is

so not only because these deviant others are obviously not listening. It is also because no amount

of normative argument can assess their positions accurately enough to construct them as

effective listeners despite themselves (which is of course the unspoken aspiration or end of all

normative argumentation). No amount (or only an infinite amount) of normative reasoning can

hope to close the abyssal gap that again opens up here between reasonable defensibility before

and actual treatment of everyone as free and equal.

So in both cases of justification – justification of an act before a reasonable other and

justification of an act before an unreasonable or deviant other – does the gap between reasonable

defensibility before and actual treatment of everyone as free and equal actually reduce

justification to a matter of self-justification before everyone supposedly free and equal. This is so

because justification can never amount to effective justification to the other or in the eyes of the

other. The “before” in the phrase “justification before everyone concerned” never has the reach

the other, be it the reasonable or the unreasonable other. The “before” thus constitutes nothing

more than a more or less obscene, if not pathological, “in front of.”17

Constitutional democracies and other “decent” peoples that more or less endorse a

Rawlsian conception of public reason surely cannot generally be accused of a pathologically

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sovereign self-display.18 But in view of the need to regularly decide matters and forgo the infinite

deliberation that alone could claim to have taken into account the coerced other, be it the

reasonable or unreasonable or deviant other, none of these decent peoples can claim not to

constitute themselves generally by means of acts of coercive closure and imposure on this

reasonable or unreasonable other. The most decent of constitutional democracies and other

decent peoples constantly need to constitute or re-constitute themselves in and through moments

of coercive closure. And a crucial element of their decency would turn on the degree to which

they honestly seek to justify these moments of closure. But another crucial element of this

decency, as I understand it, would be to also avoid the conceit of claiming that they are doing

justice when they move towards such justified coercive closures. This conceit can only have one

source, namely a complete disregard for the way “justification before everyone concerned”

invariably implies “justification in front of everyone concerned.” It rarely if ever constitutes a 17 Consider two obscene (if not pathological) examples of justification turning into murderous monologues of

self-justification invoked by Scott Veitch, Law and Irresponsibility (London: Routledge-Cavendish, forthcoming 2007): “When asked on US television whether the death of 500,000 Iraqi children as a result of sanctions was justified [Secretary of State] Madelaine Albright replied “I think this is a very hard choice, but the price, we think the price is worth it.”’; “The British Prime Minister was asked about the consequences of the 2003 invasion: ‘How do you sleep at night, knowing you’ve been responsible for the deaths of 100,000 Iraqis?’, to which his response was, ‘I think you’ll find it’s closer to 50,000.’” All of this could of course be justified, if you were pressed to do so, by the unreasonableness of the deviant other, the rogue Saddam Hussein. But reliance on the unreasonableness of the other as the ground for the reasonableness of your own actions, however harmful they may be, is a cynical move that flouts all possible meanings of the words responsibility and justice. The 1999-2000 report of the United Kingdom Parliament’s Select Committee on International Development maintained that the suffering in Iraq was ultimately the responsibility of the Iraqi regime, but nevertheless observed the following (as quoted by Veitch): “This does not, however, entirely excuse the international community from a part in the suffering of Iraqis. The reasons sanctions were imposed in the first place were precisely the untrustworthiness of Saddam Hussein, his well documented willingness to oppress his own people and neighbours, his contempt for humanitarian law. The international community cannot condemn Saddam Hussein for such behaviour and then complain that he is not allowing humanitarian exemptions to relieve suffering. What else could be expected? A sanctions regime which relies on the good faith of Saddam Hussein is fundamentally flawed.” PAGE #s My argument in this article, however, takes a stricter stance on cases like these. When one knows and expects that the conduct of the other will be unreasonable, the responsibility for how one is to deal with this unreasonableness becomes entirely one’s own. There is no point in invoking the unreasonableness of the other under these circumstances, unless one wants to terminate questions of responsibility and justice and switch to a discourse of sovereign self-justification and self-assertion. Extreme or obscene cases of such sovereign self-justification before or in front of others such as those of Madelaine Albright and Tony Blair cited here, prompt one to compare it with the obscenity that goes by the name of “public indecency.” Public indecency or “flashing” sometimes also goes by the name of “indecent exposure.” The indecency and obscenity that are involved here nevertheless have little to do with exposure. At issue in such cases of “indecent exposure” is obviously not self-exposure, but the more or less naked and brutal display of pathologically self-enclosed selves. At issue in these cases is indeed not exposure but sovereign imposure.

16

“justification to everyone concerned.” It rarely if ever does justice to the other, be this other a

reasonable or unreasonable other.19 The decency of truly “decent” peoples depends on their

willingness to acknowledge the extent to which their regular need for closure involves them in

moments of sovereign imposure from which a certain indecency can never be eradicated fully.

The question remains whether the word “justice” can still play any significant role in the

political and legal discourses of decent peoples. Is the upshot of all the above that one has simply

removed the word “justice” from the registers of political and legal discourse and reserved it for

the discourses of philosophy, theology, religion and poetry? Not quite. One plausible way of

retaining political and legal significance for the word “justice” is to reserve it for the politically

and legally more imaginative, more creative and – not only ethically but also rationally – more

responsible open experimentation with more accommodating ways of dealing with the

reasonable and the unreasonable other in the hope of finding or creating more humane and more

symbiotic ways of human co-existence on the face of the earth. This would mean and require that

one consistently refrain from using the words “justice” or “just” to characterise a present or

future state of affairs (a present or future state of closure), irrespective of whether these present

or future states of affairs are indeed ones of increased humaneness or increased mutual

benevolence between humans. It would require that one tentatively reserve the word “justice” for

the present, continuous “doing of justice” that takes place in an interim of open experimentation,

however fleeting this interim may be. To the extent that one would wish to employ the word

“justice” positively and not just negatively through the acknowledgment of injustices, one would

have to reserve it for an experimental moment of deferral, for a moment of deferring for as long

as possible the inevitable moment of accusation that lies at the heart of all acts of closure and

self-constitution.20

17

This interim open experimentation with a more humane and symbiotic world that for now

defers the safety and comfort of closure so as to consider possibilities of human co-existence that

have appeared impossible up to now will nevertheless only be a “doing of justice to an other” to

the extent that it is a “doing of justice with” – and not just in front of or before – the other. It will

only be a doing of justice to the extent that it truly moves from imposure to exposure. It will be a

doing of justice to and with the other to the extent that it truly allows for an exposure to the real

risk and threat that the equal liberty of the other always holds, that is, to the extent that it signals

a move into a moment of imminence in which anything can happen. This is what it means to

respect the equal liberty of the other, irrespective of whether one considers this other as a

reasonable or unreasonable other.21

This understanding of justice as an experimental exposure to the risk that the equal liberty

of the other poses for the self is one (plausible) way of coming to terms with what Derrida might

have meant by the words “justice” and “hospitality.” And this, I shall show below, is exactly

what Rawls thought could and should ever increasingly be excluded from “public reason.”

18 But none of them can claim never or not often to have succumbed to such pathological acts of pathologically sovereign self-display. The records of conduct with which especially the United States and United Kingdom chose to mark their legacy for the 21st century are clear cases in point. Cf. again footnote 16.

19 It might be argued that it is only Michelman’s incidental and perhaps (for his own argument) unfortunate choice of the phrase “an act that you must admit that I can reasonably defend before you as fully considerate of everyone as free and equal” that allows me to articulate my argument in the way I have done above. It should nevertheless be abundantly clear that my argument is not just rhetorically exploiting an unfortunate phrase. I may have had to argue the point in a slightly different way had I used, for instance, Rawls’ “criterion of reciprocity” as my point of departure, but it surely would not have prevented me from making the same point. The criterion of reciprocity holds that “our exercise of political power is proper only when we sincerely believe that the reasons we offer for our political action may reasonably be accepted by other citizens as a justification of those actions.” Cf. Rawls Political Liberalism (New York: Columbia University Press, 1996), xlvi. A close reading of this passage shows that the criterion of reciprocity breaks down in the very definition of the criterion that Rawls offers here. At issue in it is really only the criterion whether we sincerely believe that we are offering reasons that everyone can reasonably accept, and not whether everyone sincerely and actually believes that we are offering reasons that everyone can reasonably accept. At issue in other words, is the same gap between the merely formal or procedural, on the one hand, and the actual and substantive, on the other, exposed in the argument above, namely, the gap between the formal procedure of asking ourselves whether everyone can accept the reasons offered as reasonable, on the one hand, and the actual acceptance by everyone of the reasons offered as reasonable, on the other. Again, it is only self-justification and sovereign self-assertion before or in front of others that is at issue here, albeit sincere sovereign self-assertion.

18

III. Rawls and Derrida on Political Psychology and History

Let us suspend for a moment the conclusion above that the word “justice” should be

reserved for the acknowledgment of injustices and the experimental openness towards otherness.

Let us begin the discussion anew by looking at what Rawls and Derrida say about justice in their

respective texts.

Rawls stresses in the beginning of Political Liberalism and at the end of The Law of

Peoples that his political liberalism is informed by the assumption that constitutional democracy

and domestic and international justice are possible. He does this both times with reference to

Kant’s remark that it would no longer be worthwhile for men [sic] to live on earth should justice

perish.22 The point of the thoughts developed in Political Liberalism and The Law of Peoples is

to show how justice is indeed possible. At issue in these works is thus, according to Rawls, not a

naïve but a realistic utopia.23

In the paper Force of Law: The Mystical Foundation of Authority that he presented at the

Cardozo Law School in 1989, Derrida, in contrast to Rawls, stressed the impossibility of

justice.24 The impossibility of justice that he invoked in this paper, however, was never to be

understood as a simple or blank denial of the possibility of justice. As Derrida would later put it

in Fichus (the text written for the occasion of his receiving the Adorno prize in 2002), his work

had for such a long time (depuis si longtemps) been an exploration of the possibility of the

20 I am indebted here to the probing essays of George Pavlich. Cf. George Pavlich “Accusation: Landscapes of Exclusion” in William Taylor, ed., The Geography of Law: Landscape, Identity and Regulation (Oxford: Hart Publishing, 2006), 65-85; “The Lore of Criminal Accusation” (forthcoming in Philosophy and Criminal Law); “Forget Crime: Governance, Accusation and Criminology,” The Australian and New Zealand Journal of Criminology 33, 2 (2000) 136-152.

21 Cf. in this regard also the section on “maintaining the imminent threat of the other’s liberty” in Van der Walt Law and Sacrifice: Towards a Post-Apartheid Theory of Law (London: Birkbeck Law Press, 2005), 238-242.

22 John Rawls, Political Liberalism, lxvii; The Law of Peoples (Cambridge, Massachusetts: Harvard University Press, 1999), 128.

23 Rawls, The Law of Peoples, 11-23.

19

impossible.25 The impossibility at issue here, allowing as it does for the possibility of the

impossible, is clearly not a simple impossibility. As he would remark two years earlier in an

important text on psychoanalysis and politics to which we shall pay more attention below, the

impossibility at issue here does not concern a simple negativity or negation. At issue is an

experience of a non-negative im-possibility (l’expérience d’un impossibilité non-négatif).26 And

in the same context, in fact, in the paragraph preceding the one in which he makes this

observation regarding a non-negative im-possibility, he remarkably also invokes the Kantian

concern with a life worth living that Rawls invokes in Political Liberalism and The Law of

Peoples. A life worth living, argues Derrida, cannot be contemplated in terms of power and the

economy of the possible on which power turns. It cannot be contemplated in terms of an “I can”

(je peux). “The only life worth living is an im-possible life beyond the economy of the possible,”

a life thus beyond the economy of the “I can,” beyond the economy of what can be done, beyond

the economy of programmes that can be launched and realised (“une vie autre que celle de

l’économie du possible, une vie im-possible sans doute…mais la seule qui vaille d’être

vécue…”).27

Rawls’ and Derrida’s thoughts converge here on the Kantian question of a life worth

living, but their thoughts already separate in this very convergence. For Rawls it is a certain

possibility that makes life worth living, the possibility of justice. For Derrida it is an

impossibility that makes life worth living, indeed, the impossibility of justice. The paradoxical

and perhaps contradictory ways in which both of them deal with this possibility and impossibility

in the statements cited above, nevertheless seem to suggest a certain resonance between their

respective positions on the possibility and impossibility of justice. Once can almost hear the 24 Jacques Derrida, Force de Loi: Le ‘Fondament Mystique de L’Autorité’ (Paris: Galilée, 1994), 16.25 Jacques Derrida, Fichus (Paris: Galilée, 2002), 20.26 Derrida, États d’âme de la psychanalyse (Paris: Galilée, 2000), 83.27 Ibid, 82.

20

words “possible impossibility” ring in the phrase “realistic utopia” and vice versa. They are,

however, not saying the same thing. The different political psychologies and understandings of

history at work in their respective writings make this quite clear.

Rawls bases the “realism” of his realistic utopia of constitutional democracy and

international justice between well-ordered societies (constitutional democracies and other decent

societies) on the benevolent circular relationship between public reason and the moral

psychology on which public reason turns. I shall, in the course of developing this section argue

that Rawls’ realism actually lies elsewhere, but let us first look at what Rawls says.

Public reason consists in the ability and willingness to forgo, as far as the basic

arrangements of social life are concerned, insistence on the truths of the various comprehensive

worldviews that inform the variety of cultures in modern democracies. It consists in the

acceptance, for the sake of social unity and stability, that the basic arrangements of social life can

and must not turn on substantive cultural truths that in any way exceed or take leave of the basic

principle of reciprocal recognition of everyone as free and equal.28

The underlying moral psychology that according to Rawls makes public reason possible

and is in turn strengthened by public reason is this: People who grow up in stable constitutional

democracies where public reason prevails learn to trust the public institutions of constitutional

democracies. They thus become more inclined to accept that the reasonable comprehensive

views of others pose no threat to their own comprehensive views and less inclined to insist that

public arrangements be a reflection of their own comprehensive views. In other words, the

mutual trust that results from public reason strengthens public reason over time.29

28 Rawls, Political Liberalism, 11-15, 212-254.29 Rawls, A Theory of Justice (Oxford: Oxford University Press, 1973), 490-496; Political Liberalism, 142, 154-

164.

21

In The Law of Peoples, Rawls transposes this mutually constituting and enhancing

relation between public reason and its underlying moral psychology to the relation between

constitutional democracies and other well-ordered societies. Well-ordered societies, he

maintains, are satisfied societies that pose no ideological or other threat to one another. The

peace between them is not the provisional and unstable modus vivendi in the wake of a mere

truce, but a stable peace that turns on international public reason. This international public reason

sets off the same positive circle between trust and reason invoked in A Theory of Justice.30

Rawls also invokes in this regard the history of peace between constitutional democracies as the

basis for his “realistic” hope that the future of humankind will be one of increasingly long-lasting

peace.31

Now, this argument clearly reflects a rather optimistic view of national and international

political relations, but this optimism is certainly not naïve. Rawls is well aware of the frailty and

fragility of public reason and mutual trust on the national and international levels of human co-

existence. This frailty and fragility are due to mainly three things. 1) Public reason is

existentially unsatisfactory because it cannot live up to the fullness of the substantive beliefs and

convictions embodied in comprehensive worldviews. 2) Public reason does not always answer

questions univocally and therefore often fails to resolve social conflict satisfactorily and thus

leaves the parties to the conflict legitimately free to take leave of the principles of public reason.

3) Individuals and peoples who endorse public reason are susceptible to the temptation to take

leave of public reason in the course of encounters with individuals and people who do not

endorse public reason. The following three passages from Political Liberalism and The Law of

Peoples articulate these three weaknesses of public reason well:

30 Rawls, The Law of Peoples, 15-16, 19, 44-48.31 Ibid., 8, 51-54.

22

1) As institutions and laws are always imperfect, we may view that form of discourse as

imperfect and in any case as falling short of the whole truth set out by our comprehensive

doctrine. Also, that discourse can seem shallow because it does not set out the most basic

grounds on which we believe our view rests. Yet we think we have strong reasons to

follow it given our duty of civility to other citizens. After all, they share with us the same

sense of its imperfection, though on different grounds, as they hold different

comprehensive doctrines and believe different grounds are left out of account.32

2) One difficulty is that public reason often allows for more than one reasonable answer

to any particular question. This is because there are many political values and many ways

they can be characterised. Suppose, then, that different combinations of values, or the

same values weighted differently, tend to predominate in a particular fundamental case.

Everyone appeals to political values but agreement is lacking and more than marginal

differences persist. Should this happen, as it often does, some may say that public reason

fails to resolve the question, in which cases citizens may legitimately invoke principles

appealing to non-political values to resolve it in a way they find satisfactory…The ideal

of public reason urges us not to do this in cases of constitutional essentials and matters of

basic justice.33

3) The principles [of international public reason] most likely to be violated [in cases of

conflict with outlaw states] are the norms for the just duty of assistance owed to burdened

societies. This is so because the reasons for supporting these principles call for great

foresight and often have powerful passions working against them. But it is the duty of

statesman to convince the public of the enormous importance of these principles. To see

32 Rawls, Political Liberalism, 243.33 Ibid., 241.

23

this, recall the discussion of the role of the statesman in the conduct of war against an

enemy state, and the emotions and hatreds the statesman must be prepared to resist.[34]

Similarly with the duty of assistance [to burdened societies]: there may be many aspects

of the culture and people of a foreign society living under unfavourable conditions that

interfere with the natural sympathy of other societies, or that lead them to underestimate,

or fail to recognize, the great extent to which human rights are being violated in the

foreign society. A sense of social distance and anxiety about the unknown make these

feelings stronger. A statesman may find it difficult to convince public opinion in his or

her own people of the enormous importance to them of enabling other societies to

establish at least decent political and social institutions.35

All three these passages evince Rawls’s clear regard for the fact that the normative

principles of public reason often do not themselves suffice to secure the continued endorsement

of these principles. In other words, the endorsement of these normative principles often turns on

non-normative factors and considerations which render this endorsement highly precarious. The

use of the expression “public reason urges us” in the second passage and the statement that a

“statesman may find it difficult to convince public opinion…” in the third passage makes this

abundantly clear. It is in expressions and statements such as these, I would like to contend, that

Rawls’ real realism is to be found, and not in the invocation of the all too brief history of peace

between constitutional democracies on which he himself relies as the basis of his realism. These

statements regarding the frailty of public reason also constitute the points where Rawls almost

touches upon Derrida’s regard for the impossibility of justice and democracy. Rawls’ regard for

the frailty of public reason would, from a Derridean perspective constitute the strongest points of

34 Rawls refers here among other things (such as the bombing of Hiroshima and Nagasaki) to Churchill’s failure as a statesman in the heat of the tensions and passions of war at the time of the bombing of Dresden. Cf. Rawls, The Law of Peoples, 101.

35 Ibid., 126.

24

his argument. It is here that Rawls moves away from his rather facile normative history (of peace

between constitutional democracies) and approaches the aporetic historicity which conditions all

normative histories in the first place. This is where Rawls, as Derrida might have put it, moves

beyond a metaphysical concept of history to a thinking of historicity.36

There is indeed some resonance between Rawls’ recognition of the frailty of public

reason in the passages quoted above and Derrida’s political thinking. Derrida in comparison,

however, would appear to be even more aware of this frailty and one can ask the question if he is

not downright pessimistic about the prospect of reasonable national and international political

relations.37 In his États d’âme de psychanalyse, Derrida stresses the need that political, legal and

ethical thinking take into account the insights of psychoanalysis. It is the responsibility of

political thought to take into account the dark truths of human existence that psychoanalysis

teaches. Foremost among these dark truths is an irreducible cruelty that appears to have haunted

mankind from its beginnings, no, from before its beginnings. Derrida refers in this regard to a

36 Derrida, Spectres de Marx (Paris: Galilée, 1993), 120: “C’est là qu’une autre pensee de l’historicité nous appellerait au-delà du concept métaphysique d’histoire et de fin de l’histoire, qu’il soit dérivé de Hegel ou de Marx.” The “là” or “there” in this sentence refers to the normatively unrepresentable latency period that preceded (and thus deferred) the final collapse of totalitarian communist states. Francis Fukuyama interprets this collapse of totalitarian communism normatively in terms of the final historical triumph of constitutional democracy over totalitarian ideologies without paying sufficient if any attention to the fact that in the real historical process, or rather, in the historicity or eventness of this historical process to which Derrida refers here as the latency period, things could have gone in any direction and things could have taken much longer. And in the interim of this undeterminable latency or eventness, any notion of something like a necessary normative history or outcome of history would have remained empty and unconvincing metaphysical rhetoric. And this eventness, latency or historicity of history, Derrida maintains, never passes. It is never over. That is why any normative interpretation of the outcome of history remains empty and unconvincing rhetoric that attests to nothing but the underlying anxiety (the false triumphant mode of mourning) of this rhetoric itself. Rawls would have made the same mistake had he simply inferred from the history of peace between constitutional democracies that history would ultimately end with the universal recognition of the superiority of constitutional democracy as a form of government and a political idea. But it should be evident from the above that Rawls’ realistic utopia has little (but perhaps not nothing) in common with this empty metaphysical rhetoric. In view of his regard for the many ways in which the future of constitutional democracy can come to turn on the fragile urging and precarious persuasion by fallible statesmen that we do not take leave of public reason, the historical evidence of peace between constitutional democracies indeed points to nothing more than a chance of longer periods of peace in the future of mankind. The normativity that Rawls invokes has no historical guarantees to rely on. It remains subject to the eventness and historicity of history. For the perhaps rather Derridean Rawls that I am constructing here, the latency period, the period of urging and difficult persuasion, is also never over.

37 But then, has a certain pessimism, from Hobbes onwards, not always been the hallmark of and test for honest political thought?

25

“cruelty as old as and possibly older than mankind [une cruaté aussi vieille et sans doute plus

vieille que l’homme].”38

Derrida’s phenomenology of sovereignty in his last works points to an understanding of

sovereignty as a response to and further embodiment of this ancient or pre-ancient cruelty.

Sovereignty is a cruel response to cruelty, he suggests.39 He does not refer to Girard in this

regard, but echoes of Girard’s circles of violence are quite evident in these thoughts on

sovereignty.40

In fact, circularity characterises the existential embodiment of sovereignty in Derrida’s

thinking. The phenomenology of sovereignty in Voyous characterises sovereignty in terms of

circular turns that turns the self into an insulated tower of selfhood that no longer responds to

otherness and the other. Sovereignty is for Derrida the towering turn or return of the self to and

around a nuclear core of selfhood.41 One can regard these observations as an incisive engagement

with Schmitt’s explanation of sovereignty and of the political in terms of the existential

intensification that gives rise to the friend/enemy distinction.42 Be it as it may, large parts of

Voyous consist in exposing the degree to which the discourse of international law still allows for

nation states to decide unilaterally whether to engage in hostilities with other states, the degree,

in other words, to which international law allows so called lawful states to turn to themselves as

regards decisions to go to war or not.43 It is against this background that Derrida finds the

distinction between lawful and unlawful or rogue states fundamentally unstable.44

It is also against the background of this phenomenology of sovereignty in terms of the

suspension of relations with otherness and of the turn or return of the self to a nuclear core of

selfhood at the expense of all concerns with otherness that the significance of another central

38 Derrida, États d’âme de la psychanalyse, 70.39 Cf. ibid, 81-82 for an express link between sovereignty and cruelty.40 Cf. Girard La Violence et le Sacré (Paris: Editions Bernard Grasset, 1972).

26

theme in Derrida’s later works becomes clear, namely, the Levinasian concern with hospitality.

This hospitality requires the self to relate to the other at the complete expense of the self or

selfhood. Hospitality requires the self to give to the other more than it has to give.45 Hospitality,

one can say, is thus the completely non-circular and selfless (that is, devoid of any turn or return

to the self) opposite of sovereignty. The next section will compare Rawls’ concern with public

reason with Derrida’s concern with hospitality so as to highlight some resonances but also the

ultimately undeniable points of difference and divergence between these key concepts in their

respective political thinking.

IV. Public Reason and Hispitality

To be sure, Derrida nowhere claims or suggests that we must give positive effect to

hospitality in our political institutions and deliberations. Hospitality is an element of responsible

political deliberation that ultimately gets destroyed by responsible political deliberation itself.

Derrida refers in this regard to the internal and tragic self-destruction of hospitality.46 We cannot

give institutional or practical effect to hospitality. Institutionally and practically speaking,

hospitality is impossible. It is the im-possible horizon that can never be the outcome of

41 Cf. in this regard the wordplay between tower and turn, la tour and le tour in Derrida, Voyous, 25.42 Schmitt, Der Begriff des Politischen, 30, 38. The political, claims Schmitt, concerns the degree of intensity

(Intensitätsgrad) of the association and dissociation between people. The political thus also concerns the most intense opposition (der intensivste und äußerste Gegensatz) between self and other.

43 At issue is section 51 of the United Nations Charter that allows member states to resort to armed conflict to defend themselves as long as the United Nations do not take sufficient measures to come to their defence and keep or restore peace. Derrida points out in this regard that this exception to the prohibition to resort to armed conflict to settle disputes has up to the end of the cold war been the effective licence of the two super powers to take unilateral military action whenever their interests were threatened. Soon after the dissolution of the Soviet Union, President Clinton expressly stated that the United States would make use of section 51 as they saw fit. They would act against rogue states, “multilaterally if possible, unilaterally if necessary”. William Cohen, Secretary of Defence at the time, would later reiterate that the United States were ready for unilateral military intervention whenever their vital interests were at stake. According to Cohen, vital interests included access to key markets, energy supplies and strategic resources and anything else that a domestic jurisdiction would deem to be a vital interest. Cf. Derrida, Voyous, 142, 147.

44 Ibid, 150.45 Derrida, Manifeste pour le Hospitalité (Grigny: Éditions Paroles d’Aube, 1999), 140-141, 150.46 Ibid, 100.

27

responsible political deliberation, but always conditions or allows for the possibility of

responsible political deliberation.

As an impossible or im-possible horizon of responsibility, hospitality never figures as a

presence within the realm of the do-able or make-able. It does not figure within the realm of the

je peux. This, however, does not render it irrelevant for the realm of responsible judgment and

the realm of the do-able or the je peux that responsible judgement must always take into account.

Without an experience or encounter with hospitality as the im-possible horizon of responsibility,

political deliberation becomes a matter of sheer sovereign expedience. In the absence of an

encounter with hospitality, the political decision becomes a function of the sovereign return to

the exclusive concern with the self, with what the self can afford. It becomes a function of the

self’s incessant turning around its own je peux. One can argue that Derrida contemplates in this

regard a certain scale of concepts that runs from sheer economic expedience, on the one end, to

absolute hospitality, on the other. Responsible judgement features as a tragic traversal of the

possibilities that become possible between these ends. It features as a tragic compromise between

expedience and hospitality in which expedience always has the last say.47

But how does this moment of hospitality feature in responsible judgment if it does not

feature as an identifiable presence, if it proves, when the scoreboard comes up, always to have

been displaced by expedience? Can hospitality really be said to make a difference? A cogent

answer to these questions, I wish to argue, can be inferred from a deeper scrutiny of the different

moral psychologies of Derrida and Rawls that we invoked above. And this deeper scrutiny, I also

wish to maintain, also illuminates the crucial difference between Rawls’ notion of public reason

and Derrida’s notion of hospitality.

47 Ibid, 114.

28

Derridean hospitality would appear to constitute a crucial moment in Rawlsian public

reason, just as it does in the decentred reason of Habermasian discourse ethics.48 Public reason,

after all, requires a certain accommodation of otherness that exacts the price of giving up notions

of comprehensive truth that are often deeply dear to the self. This accommodation of otherness,

however, always comes with and at an exact price in Rawls’ thinking. It concerns a certain

purchasing of reciprocal civility and social stability that has nothing to do with the selfless

exposure to otherness that Levinas and Derrida have in mind when they talk about hospitality.

This economic trade-off or purchase does not only apply to the initial stages of a modus vivendi

from which public reason must be clearly distinguished, according to Rawls, despite the fact that

he himself recognises that such a modus vivendi often constitutes the beginning of development

that eventually gives rise to public reason properly speaking.49 That a deeply self-concerned

economic trade off remains central to public reason becomes clear when we again consider the

moral psychology that Rawls invokes to explain the viability or possibility of public reason. As

we have seen above, the moral psychology that Rawls invokes to substantiate the possibility of

public reason, turns on the crucial element of increasing trust that others in national and

international communities will comply with the requirements of public reason and thus also

subject themselves to its limitations. It turns on the increasing trust that we can meet one another

halfway.50 In other words, Rawls’ understanding of public reason thus clearly depends on an

economic calculation that public reason will not require the self to give up core interests of

selfhood. It does not require the element of selfless hospitality that Derrida takes to be a crucial

element of political responsibility. Not only does public reason not require this selfless

hospitality, it only becomes possible on the basis of the increasing trust that public reason will

29

not require this selfless hospitality. Rawls’ understanding of public reason turns on the increasing

erasure of the possibility of Levinasian or Derridean hospitality.

Derrida’s “moral psychology,” on the other hand, that is, his concern with the dark truths

of psychoanalysis, requires him to make hospitality a crucial element of responsible political

deliberation. Why is this so? It is so because his psychology, which is much rather an existential

than a moral psychology, does not allow for the assumption of increasing reciprocal trust that

everyone will abide by the limitations and demands of public reason. Derrida remains haunted by

the pre-ancient cruelty of mankind. This regard for the pre-ancient cruelty of mankind leaves him

with an acute sense of the huge risks that relations with others and the other hold for us. A

responsibility that truly responds, that is, a responsibility that avoids an immediate sovereign

return to or turning around itself, but exposes itself to otherness and others, thus requires the

acceptance of grave risks. And it is in this acceptance of the grave risks that the encounter with

others exacts from the self that the self exposes itself to otherness at its own expense or at least

the very real possibility of its own expense. Here lies the moment of hospitality in Derrida’s

understanding of political responsibility. Rawls’ notion of trust in public reason does not allow

for this.

V. Immimanence, Imperfection and Courage

Whether one regards Rawls or Derrida as the more pertinent political philosopher of our

time would seem to turn on the moral and/or existential psychology to which one subscribes. I

shall comment tentatively on the relative merits of Rawls’ and Derrida’s moral and existential

psychologies towards the end of this article, but wish to note that I ultimately refuse to relate the

merits of their respective theoretical stances to the relative merits of their moral or existential

30

psychologies. Rawls’ and Derrida’s political thoughts move on two altogether different planes

and hardly bear comparison, let alone comparison that would too quickly invoke the respective

merits of their respective theoretical endeavours. The comparative reflections above should

therefore rather be understood as a juxtaposing of their theoretical endeavours in order to grasp

better the different planes that their respective thoughts traverse and to identify points where

these planes appear to touch one another. In this way, one can also come to an understanding of

what remains unsaid or largely unsaid in each of their respective modes of thinking.

Rawls’ thought, I suggested above, moves mostly on the plane of a normative

historiography and a normative thinking that elaborate the fundamental set of coherent concepts

required to contemplate the logical and therefore, as Rawls would have it, “realistic” possibility

of constitutional democracy and international justice. As I have also shown, he sometimes also

48 The intersubjective cultural discussion and decentred reason that underlie Habermas’ discourse ethics also require a willingness to let go of the certainty of and the insistence on one’s own convictions. As far as I can recall, Habermas never addresses the crisis of this “letting go.” He never discussed the resistances that the self experiences against “letting go” and against considering the conviction of the other. In other words, he never scrutinises the dynamics of the fundamental graciousness or grace required to hear the other, that is, the event of hospitality to otherness that is the very condition of possibility of any discourse ethics. It is as if he simply assumes that an intrinsic normativity will simply guide the decentred discussion of modernity towards ever greater reasonableness. This assumption can perhaps be traced to the Hegelian roots of his thinking. That the decentred discussion that constitutes the learning process of modernity is conditioned by an open eventness or historicity, that it is as much subject to the risk of going seriously wrong as it is the chance of felicitous learning, never seems to concern Habermas’ theoretical endeavours.

49 Rawls, Political Liberalism, xxxix-xliii, 146-149; The Law of Peoples, 44-45. 50 When I first presented this argument in a workshop in Prague, May 2005, Frank Michelman asked the

question whether I am not confusing public reason with modus vivendi, that is, whether the economic trade-off that I read into Rawls’ understanding of public reason is not more characteristic of a modus vivendi than it is of public reason. My response to this question was and still is that the very possibility of public reason turns for Rawls on a moral psychology which is permeated by an economic reasoning (increasing trust that everyone will comply with the requirements of public reason, that our encounters with others will be safe and will not require the self to put at risk the key interests of selfhood recognised by public reason). This economic reasoning is certainly more upfront and vivid in the case of a modus vivendi, but it does not simply disappear when modus vivendi eventually turns into a real overlapping consensus, that is, when the truce of modus vivendi turns into a moral consensus and is adhered to for the right reasons. The economic reasoning does not and cannot disappear thus, because the very movement from mere truce to moral consensus depends on it. But one must add that it is not only the movement from truce to consensus that is marked by this economic reasoning. I think it is clear from Rawls’ understanding of the role of his moral psychology in the establishment of public reason that the “maintenance” of a well established moral consensus would still be dependent on this moral psychology. This is perhaps another way of saying that the distinction between modus vivendi and public reason or overlapping consensus is never watertight. Here too do we always find ourselves in the latency period, the historicity and eventness of normative histories that can either move us closer to a moral consensus and further away from mere modus vivendi, or vice versa.

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moves away from this “normatively logical and therefore realistic” mode of thinking so as to

touch upon the very real existential requirements (leadership or statesmanship that can only urge

and precariously persuade) that ultimately condition the historical possibility of his normative

ideals. These ventures into existential inquiries regarding the possibility of public reason,

constitutional democracy and international justice (the real points of realism in his thought from

a Derridean point of view), however highlighted above, ultimately remain marginal in his

thinking.

Derrida’s thought, on the other hand, predominantly moves on the plane of the

fundamental existential conditions of democracy and justice. He sometimes mentions, almost in

passing, the need for normative thinking, but it is not an exaggeration to say that he never

engaged directly let alone systematically with normative political thought.51 On this count, it

might even be fair to say that Rawls’ occasional ventures into existential inquiry are more

compelling than Derrida’s passing remarks on the need for normative inquiry.52 This, however, is

hardly an interesting contention, in any case not for a thinking that is more interested in coming

to understand how normative and existential inquiry ultimately relate to one another. In the hope

of doing just this, I have recently embarked on an attempt to understand law and language in

terms of the homonyms immanence and imminence.53 Immanence of law and language concerns

the complete but in the same breath always limited spectrum of what is sayable. At issue here is

the Wittgensteinian insight that the scope of the sayable is determined by and thus restricted to

the normative practices of a language community.54 Imminence of law and language concerns the

insight that nothing will be sayable (nothing will ever be communicated) in law and language if

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the sayable is restricted to the mere repetition of that which has already been said. Sayability thus

ultimately also turns on the possibility (or impossibility) of saying again what has already been

said as if saying it for the first time. The normative stock of language and law will become

lifeless relics of spent histories if they are not somehow sayable today in ways that recapture the

existential thrust and force that marked the birth of their “first” saying.

Rawls touches upon the plane of the imminence of law and language when he recognises

the fragile “urging” and “persuasion” on which public reason ultimately turns, but his theory of

political liberalism predominantly explores the normative or logical limits of law and language,

that is, the immanence of law and language. Derrida, on the other hand, is just marginally

interested in the immanence (normative sayability) of law and language. His thinking dwells

incessantly on the imminence (existential sayability or saying) of law and language. The task of

political thinking today should perhaps be understood in terms of the need to scrutinise

rigorously the relation between the immanence and imminence of language. For the sake of

economy we can refer in this regard to the task of scrutinising the immimanence of law and

language. And for the sake of beginning to scrutinise further or at least preparing the ground for

scrutinising this immimanence of law and language, I shall now indeed risk some brief

observations regarding the relative pertinence and merits of the respective approaches of Rawls

and Derrida to political philosophy or political theory.

51 Derrida, L’Autre Cap (Paris: Les Éditions de Minuit, 1991), 51-52.52 I am not sure of this, but am prepared to consider it. The point is in any case that the merit of Derrida’s

thinking lies elsewhere, namely, in the way he illuminated the historical, linguistic and existential conditions of and for normative thinking. And the task of engaging in this kind of thinking is surely no less important than engaging with normative thinking itself.

53 Van der Walt, “Immimanence: Law’s Language Lesson,” 2-16.54 Ludwig Wittgenstein, Philosophical Investigations (Oxford: Basil Blackwell, 1958), 226 and especially para.

114-115 at 48: “‘The general form of propositions is: This is how things are.’ – That is the kind of proposition that one repeats to oneself countless times. One thinks that one is tracing the outline of the thing’s nature over and over again, one is merely tracing round the frame through which we look at it…A picture held us captive. And we could not get outside it, for it lay in our language and language seemed to repeat it to us inexorably.”

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I think that no one in his or her right mind can seriously deny the immense contribution

that the works of Rawls have made to modern political theory. “Radical” political and social

philosophers who indeed wish to deny Rawls’ contribution in this regard should ask themselves

whether they can really think of other comparable theoretical endeavours that so meticulously

and consistently articulate a coherent range of fundamental concepts in terms of which the

normative questions of human co-existence in complex multi-cultural national and global

societies can be addressed. Having said this, the question remains, on the other hand, what

contribution Derrida’s incessant and at times almost literary dwelling on the existential

conditions of democracy and justice makes to the theoretical engagement with humanity’s quest

for justice. The question is important because simplistic dismissal of Derrida’s contribution in

this regard is rife in analytical and normative political theory.55 A first step towards addressing

this question can be taken by indeed considering now the question regarding the relative merits

of the psychologies on which Rawls’ and Derrida’s respective theoretical endeavours rely. The

question can be articulated thus:

Can one convincingly claim today that we are close to a point in the history of the world

that warrants the trust that the other is going to meet us halfway in the civil compromise between

comprehensive worldviews? Does the short history of relative peace between constitutional

democracies really give us reason to believe that humanity is heading for increasingly long-

lasting peace and stability? If the answer to this question is yes, Derridean thinking must take a

bow and leave the stage of political philosophy. It would have to accept that it belonged to a time

in which the question of justice on earth was still a real problem, an aporia in fact, and not just a

matter of ironing out the last hitches in the final realisation of justice towards the end of history.56

55 The distasteful controversy regarding Derrida’s contribution to philosophy that again erupted at the time of his death certainly testifies to this rife and in my view reckless dismissal.

56 For a fascinating literary suggestion that this may be the case, cf. Michel Houellebecq, Les particules élémentaires (Paris: Flammarion, 1998), 391-394.

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If the answer is no, we can discard as irrelevant for the time being all Hegelian metaphysical

questions as to whether history is heading for a state of reciprocal recognition of every one as

free and equal. And if the answer is indeed no, it may be well worthwhile to consider the way

Derrida has articulated our options for now:

1) We can resort to the ancient history of sovereignty, the ancient history of an exclusive

concern with selfhood, and thus simply perpetuate the ageless cruelty that has always attached to

sovereignty, the ageless cruelty that has always marked the marrow of sovereignty. Derrida

refers in this regard to the necessity of the worst, la nécessité du pire.57

2) We can take the risk of relating to the other, the risk of responsibility or the risk of the

selfless hospitality that conditions responsibility.

An essential part of the point that this article makes turns on the recognition that

humanity is bound to remain caught in the tension between these options and cannot realistically

expect to break completely free from either one of them. Let us nevertheless separate them

conceptually so as to understand what is at issue here.

The first option, when completely separated from the second, would basically amount to

a capitulation as far as an honest concern with justice is concerned. The second option resists this

capitulation. It can however, not save us from the realistic recognition that the human concern

with justice is bound to remain, not only disappointed for a long time still, but also often shocked

and shattered at that. Does this recognition imply that life on earth will then not be worth living,

as Kant and with him Rawls seem to suggest?

Not necessarily. The recognition that the human concern with justice is bound for a long

time still to be disappointed, shocked and shattered invites us to contemplate another

57 Derrida, Spectres de Marx, 57.

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understanding of the worth of human life that locates this worth not in the reaching of pre-

defined and posited goals or ideals, but in the courage to live a life that is fundamentally more

complex and profound than one of merely defining, positing and realising goals or ideals,

however lofty these ideals may be. It invites us to understand the worth of life in terms of the

courage to expose all our pursuits to a fundamentally risky hospitality, that is, to a concern with

those who are not accommodated in these pursuits and may even come to threaten these pursuits

and cause us to fail in them.58This understanding of the worth of life does not turn on the

perfection of ideals. It turns on the grace and courage to live as well as we can with the

imperfections of human existence and the always imminent frustrations of our immanent ideals,

imperfections and frustrations that most often issue from the cruel pursuits of perfection and

ideals.

As I have shown above, Rawls had a regard for the imperfections of public reason and he

can clearly be read to have pleaded for the courage to live with these imperfections so as not to

ruin public reason completely. This regard for the imperfection of public reason exposes those

who participate in public reason to the demands of a quasi Levinasian or Derridean hospitality,

demands that require them to give more than they will receive and more than they will have:

Public reason cannot always respect your reasonable concerns, but you are urged to always

respect the concerns of public reason. This is a marginal aspect of Rawls’ thinking that is at odds

with the emphasis on reciprocity that marks the core of his concerns with public reason. It is

therefore to be expected that followers of Rawls will not be too keen to emphasise this regard for

58 Derrida, Manifeste pour le Hospitalité, 137. Hospitality (elaborated in Spectres de Marx in terms of Hamlet’s reference to “a time that is out of joint”), risks, in fact, the possibility of evil, but without this risk, this opening towards otherness, there remains, beyond good and evil, only the necessity of the worst. Cf. again Derrida, Spectres de Marx, 57: “Être out of joint, que ce soit là l’être ou le temps présents, cela peut faire mal et faire le mal, c’est sans doute la possibilité même du mal. Mais sans l’ouverture de cette possibilité, il ne reste, peut-être, au-delà du bien et du mal, que la nécessité du pire.” For further reflections on courage, cf. my essay “Interrupting the myth of the partage: Reflections on sovereignty and sacrifice in the work of Nancy, Agamben and Derrida” Law and Critique 16 (2005): 278-299.

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imperfection in his thought, for it exposes a deep tension in his work that no amount of

normative analysis can hope to resolve. But Michelman does not shy away from this regard for

the imperfection of public reason. In fact, few have articulated the regard for the grace and

courage to live with the imperfections of law and public reason more forcefully. He writes:

“It does mean we never let ourselves forget that any of society’s goals respecting

democracy, self-government, and a rule of law or of reason must be ones of

approximation, of holding in check the misfortune of how things are, of choosing

among necessarily compromised offerings, of necessarily damaged goods.”59

It is a courageous, honest and frank theorist of public reason that speaks here. But his insistence

that all these imperfections go by the name of “justice”, albeit only “justice in the most pristinely

proceduralized, political liberal sense” of the word,60 is puzzling and counter-intuitive. It appears

to simply turn its back on normative and existential aspirations that have for ages been associated

with the word “justice”. Perhaps there is a rare frankness and extreme courage at play in this

insistence – sober public justice for a brave post-metaphysical world - for which not even

Derridean scholarship prepares us.61 But I wonder whether Michelman really wants to turn his

back on the unfathomable aspirations that critical political and legal theory associate with the

59 Michelman Brennan and Democracy (Princeton: Princeton University Press, 2000) 8.60 Michelman, “Postmodernism, Proceduralism, and Constitutional Justice,” 260.61 I have paid tribute to the frankness and honesty of Frank Michelman’s political liberalism on several occasions (cf.Van der Walt “The Crisis of Im/purity” in Christodoulidis and Tierney (eds) Public Law and Politics (Hampshire: Ashgate, 2008 and “Frankly befriending the Fundamental Contradiction, Frank Michelman and Critical Legal Thought in Botha et al (eds) Rights and Democracy in a Transformative Constitution (Stellenbosch: SUN Press, 2004)) and wish to do so again here. I also wish to pay tribute with this essay to Frank Michelman as a generous teacher from whom I have learned more than I can ever thank him for. His way is to teach by allowing and inviting critical argument and it is in this spirit that I offer the response in this essay to the questions he put to Henk Botha and me in Michelman, “Postmodernism, Proceduralism, and Constitutional Justice.” I also wish to express thanks here to Henk Botha, Emilios Christodoulidis, Wessel le Roux, Lindsay Farmer, Joe Singer, André van der Walt and Scott Veitch for reading and commenting on earlier drafts of this essay and helping me to improve it. Responsibility for remaining shortcomings of course remains strictly mine.

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word “justice”. For if he does, with reference to what, in comparison to what, or in contrast to

what will he remain able to recognise “the misfortune of how things are”? With reference to

what will he be able to maintain a critical awareness of the “goods” and “offerings” of the best of

current liberal democracies as “damaged” and “compromised”?

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