Abstract
The aim to rationalize balancing seems to follow this movement towards the juridification of politics. Robert Alexy’s defense of rationality is a relevant source to grasp how this process could be legitimately justified according to some predetermined rules and formulas. Yet, his theory poses some necessary questions and possibly leads to the question of whether there is a metaphysical standpoint behind his central premises. In this respect, to challenge Alexy’s premises with Jacques Derrida’s complex, fascinating and powerful philosophy is an interesting and instigating theme, insofar as his deconstruction leads to an incessant questioning of all our beliefs and certainties. There cannot be a metaphysical standpoint behind our activities, for this results in the forgetfulness of the other’s otherness, and there cannot be a logos behind the dualism between law and justice, for this culminates in the practice of violence with ground, and thus injustice. For this reason, it is necessary to verify whether Alexy’s claims to correctness, rationality and legitimacy are not metaphysically justified, and, if they are, which are the consequences they bring about to constitutional democracy. Particularly, as long as the principle of separation of powers is a fundamental issue here, the problem of the legitimacy of balancing through Alexy’s idea of an “argumentative representation” must face the question of “who are the people?” in order to show the risks of a possible construction of a substantive comprehension of democracy in this process. It is here where iterability, undecidability, autoimmunity, and responsibility in the negotiation between constitutionalism and democracy and between law and justice demonstrate their critical potential towards the other’s otherness, and hence towards doing justice to the case.
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Notes
- 1.
See the second and third chapters.
- 2.
Gary John Percesepe, Future(s) of Philosophy: The Marginal Thinking of Jacques Derrida (New York: Lang, 1989), 1.
- 3.
In this respect, we remark the BVG’s and STF’s shift to activism, as examined in the second and third chapters.
- 4.
In this respect, the emphasis is on Robert Alexy’s Theory of Constitutional Rights. See the last chapter.
- 5.
Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority’”, Cardozo Law Review 11 (1990), 945.
- 6.
Ibid., 931.
- 7.
In the next chapter, the procedimentalist approach will challenge this metaphysical thinking, as the second counter-metaphysical source.
- 8.
Richard Rorty, Truth and Progress: Philosophical Papers, Vol. 3 (Cambridge: Cabridge University Press, 1998), 310.
- 9.
Derrida, “Force of Law,” 957.
- 10.
Jacques Derrida, “Declarations of Independence,” in Negotiations: Interventions and Interviews, 1971–2001 (Stanford, CA: Stanford University Press, 2002), 46–54.
- 11.
Ibid., 47.
- 12.
See Derrida, “Force of Law,” 973–1045 (Part Two). See also Walter Benjamin, “Zur Kritik der Gewalt,” in Zur Kritik der Gewalt und andere Aufsätze (Frankfurt a. M.: Suhrkamp, 1965).
- 13.
This application of Derrida’s philosophy to practical problems is, nonetheless, contested by some approaches. Jürgen Habermas, for instance, sustains that the Derridian philosophy loses its seriousness, and also its suitability for the praxis, when he mentions that “the linguistic contextualist approach, imbued with life philosophy, is insensitive to the factual strength of the counterfactual” (Jürgen Habermas, Der philosophische Diskurs der Moderne: Zwölf Vorlesungen (Frankfurt a.M.: Suhrkamp, 1985), 242, translation mine). Richard Rorty, in turn, remarks that “Heidegger’s and Derrida’s only relevance to the quest for social justice is that, like the Romantic poets before them, they make more vivid and concrete our sense of what human life might be like in a democratic utopia – a utopia in which the quest for autonomy is impeded as little as possible by social institutions” (Rorty, Truth and Progress: Philosophical Papers, Vol. 3, 310).
- 14.
See Jacques Derrida, Rogues: Two Essays on Reason (Stanford, CA: Stanford University Press, 2005), 86.
- 15.
Ibid.
- 16.
Jacques Derrida, “Politics and Friendship,” in Negotiations: Interventions and Interviews, 1971–2001 (Stanford, CA: Stanford University Press, 2005), 180.
- 17.
The purpose of unmasking and undercutting metaphysics Derrida suggests, which continues somehow the Heidegger’s project, does not mean, as further examined, that he projects a kind of world without metaphysics. This would lead to an affirmation of a future-present and close the realm of possibility that the emphasis on différance sets forth. What he seeks is to disclose this metaphysics of presence existing in the Western philosophy and the consequences it brings about. Moreover, at the same time, he seeks to bring forth a thinking that is concerned with the other’s otherness, which means the incessantly opening to interpretability and invention mediated by language. This is, nonetheless, in its finite character, metaphysics. Richard J. Bernstein understands that it is a usual erroneous interpretation of Derrida, when one calls his theory a project that nails down the effective destruction of metaphysics. This would mean, however, the opposite of différance as an incessantly opening to the future, albeit never a future-present. Instead, for Derrida, “we are never simply ‘inside’ or ‘outside’ metaphysics”:
Derrida is acutely aware that we cannot question or shake traditional ethical and political claims without at the same time also drawing upon these traditional claims. The very dichotomy of ‘inside-outside’ is also deconstructed. We are never simply ‘inside’ or ‘outside’ metaphysics. Derrida has been read – I think seriously misread – as if he were advocating a total rupture with metaphysics, as if some apocalyptic event might occur that would once and for all release us from the metaphysical exigency. But he mocks the very idea of such an apocalyptic happening. He tells us that ‘the idea that we might be able to get outside of metaphysics has always struck me as naïve’, and that ‘we cannot really say that we are ‘locked into’ or ‘condemned to’ metaphysics, for we are, strictly speaking, neither inside nor outside’ (Richard J. Bernstein, “An Allegory of Modernity/Postmodernity: Habermas and Derrida,” in The Derrida-Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 81).
- 18.
Jacques Derrida, De la Grammatologie (Paris: Les Éditions de Minuit, 1967), 74, translation mine.
- 19.
Toni Tholen, Erfahrung und Interpretation: Der Streit zwischen Hermeneutik und Dekonstruktion (Heidelberg: Universitätsverlag C. Winter, 1999), 25, translation mine.
- 20.
The use of the term différance instead of différence reveals much of Derrida’s thinking, for it exposes the difference in the very concept of difference. According to Geoffrey Bennington, “it is a good Derrida’s word: the difference between “différence” and “différance” is only noted in the writing, which takes then a certain revenge on the speech by obliging it to take as reference its own written trace, as if it wanted, for example, in the course of a conference, to say that difference” (Geoffrey Bennington, “Derridabase,” in Jacques Derrida (Paris: Éditions de Seuil, 1991), 70, translation mine). Indeed, this connects the term différance to his analysis of the marginalization of the writing throughout the Western philosophy. For a better comprehension of this discussion, see Jacques Derrida, L'écriture et la Différence (Paris: Éditions de Seuil, 1979) and De la Grammatologie (Paris: Les Éditions de Minuit, 1967).
- 21.
According to Derrida, he “since then had doubtless to start thinking that there was no center, that the center could not be thought in the form of a present Being, that the center had no natural place, that it was not a fixed place, but a function, a form of no-place where it would be thrown itself towards the infiniteness of signs replacements” (Derrida, L′Écriture et la Différence, 411, translation mine).
- 22.
Derrida, De la Grammatologie, 92, translation mine.
- 23.
Miroslav Milovic, Comunidade da Diferença (Ijuí, RS; Rio de Janeiro: Unijuí; Relume Dumará, 2004), 103, translation mine.
- 24.
The presence of Heideggerian philosophy in Derrida’s thinking is so intense that he himself acknowledges that “nothing of what [I] attempted would be possible without the opening of Heideggerian questions” (Jacques Derrida, Positions (Paris: Minuit, 1972), 18, translation mine). This is, besides, what his critics usually remark, as Rodolphe Gasché, who mentions that, despite the influence and referred indispensability of Heidegger’s questions and also his critical reflection on his philosophy, “even this criticism, including Derrida’s ‘disseminative gesture’, is made, at least to a certain degree, in Heideggerian language” (Rodolphe Gasché, Inventions of Difference: on Jacques Derrida (Cambridge, MA: Harvard University Press, 1994), 78). Richard Rorty, in turn, sustains that “Derrida’s books are just what you need if you have been impressed and burdened by Heideggerian language but want to avoid describing yourself in terms of it” (Rorty, Truth and Progress, 307). Notwithstanding the acknowledgement of Heidegger’s influence on Derrida´s philosophy, there are critics, however, that emphasize that Derrida is no Heideggerian, even in works as Of Grammatology. This is Joshua Kates’s interpretation: “Nevertheless, granting all this, even at this moment of perigee in respect to Derrida’s and Heidegger’s orbits, Derrida, I would argue, is still no Heideggerian: especially when it comes to these issues of the epoch and the totality of metaphysics – to themes that can be summed up as falling under the heading of history” (Joshua Kates, Essential History: Jacques Derrida and the Development of Deconstruction (Evanston, Il: Northwestern University Press, 2005), 160).
- 25.
See Martin Heidegger, Sein und Zeit (Tübingen: Neomarius, 1949). See also Martin Heidegger, Identität und Differenz (Pfullingen: Neske, 1957), in which Heidegger brings to the discussion the Being as difference. Rodolphe Gasché’s interesting analysis of this matter shows, however, that, although Heidegger had thematized difference, he still interpreted it as only the ontological difference between Being (sein) and beings (seined), which is a vestige of a metaphysics of presence in his thinking. See, for this purpose, Gasché, Inventions of Difference: On Jacques Derrida, 100–101.
- 26.
The Heideggerian thinking expressed in his book Sein und Zeit (Being and Time) opens up a new dimension in Western philosophy. By radicalizing the Husserlian phenomenology, which, in turn, attacked the Kantian “thing itself” by stressing the phenomenon and disrupting any reference to an essence conditioning the world, Heidegger sustains that the Being was forgotten by philosophy. Here, Husserl’s message that the conscience is not a thing, but an act, is renewed with distinct contours by the discussion of Dasein. The Being, on the contrary, is revealed as an expression of the time, and the difference appears as the consecration of this existential discovery. It comes out as a possibility of self-comprehension, as a project of comprehension whereby the beings opens itself in its very possibility. Therefore, the Being can only be comprehended in its possibility, which is opened over time. Consistent with this view, the Being is no longer a structure, a thing itself, a logos, but rather it appears as an existential condition. Instead of an essentialism, the stress now is on the particular. As Habermas mentions, Heidegger intends to “comprehend the very world-projected subjectivity as Being-in-the-world, as a singular Dasein that finds itself in the facts of a historical contour, which, however, needs not forfeit its transcendental spontaneity” (Jürgen Habermas, Nachmetaphysisches Denken: philosphische Aufsätze (Frankfurt a.M.: Suhrkamp, 1988), 49, translation mine). It is a new moment for the philosophical thinking, insofar as the hermeneutic circle, the temporality radicalizes now the traditional resting place of conscience. “Instead of the transcendental distinction between constituens and constitutum, another one appears: the ontological difference between the projection of the world, which opens up the horizon for possible meetings in the world, and that one which factually occurs inside of it” (Ibid., 49, translation mine). See, for this purpose, Heidegger, Sein und Zeit.
- 27.
Although Heidegger adopted the term Differenz (See Heidegger, Identität und Differenz) and questioned the continuous search for a rational basis – which becomes a forgetfulness of the Being, according to this perspective – it seems that he still held the metaphysics of presence in this reinforcement of the value of the Being. Indeed, notwithstanding that Heidegger demonstrated that the comprehension of the Being is self-comprehension and an opening to a spectrum of comprehensibility and possibilities, he did not escape from a certain reference towards the Dasein in his hermeneutics. As Miroslav Milovic remarks: “the Heideggerian difference seems more a reified difference determining – we could say – the places for the appearance of the authentic” (Miroslav Milovic, “A Impossibilidade da Democracia,” Anais do Congresso Nacional do Compedi 14 (Florianópolis: Fundação Boiteux, 2005), 259, translation mine). By the same token, Habermas remarks that “the problem of intersubjectivity becomes insoluble under the accepted premises of a Dasein, which can only in loneliness authentically be projected into its possibilities” (Habermas, Nachmetaphysiches Denken, 50, translation mine).
- 28.
As Derrida remarks: “The system of language associated with the phonetic-alphabetic writing is the one in which the logocentric metaphysics, by determining the sense of the Being as presence, has been produced” (Derrida, De la Grammatologie, 64, translation mine).
- 29.
Ibid., 23, translation mine.
- 30.
Ibid., 16, translation mine.
- 31.
For instance, the metaphysics of objectivity that we observe in classical philosophies, such as in Plato and Aristotle; the metaphysics of subjectivity in the Kantian transcendental conscience and the Hegelian phenomenology of Spirit; the metaphysical solipsism still verified in Husserl’s phenomenology and Heidegger’s ontological difference, only to cite some. All of them expressed a sort of logos that was not undercut, not overcome by the dimension of différance.
- 32.
Derrida, De la Grammatologie, 16, translation mine.
- 33.
Ibid., 25, translation mine.
- 34.
Françoise Dastur, Philosophie et Différence (Paris: Les Éditions de la Transparence, 2004), 113, translation mine.
- 35.
Kates, Essential History: Jacques Derrida and the Development of Deconstruction, 166.
- 36.
Dastur, Philosophie et Différence, 109, translation mine.
- 37.
According to Derrida, “this deconstruction of presence realizes itself through the deconstruction of conscience, therefore through the irreducible notion of traces (Spur), as it appears in the Nietzschean as well as in Freudian discourse” (Derrida, De la Grammatologie, 103, translation mine).
- 38.
Dastur, Philosophie et Différence, 114, translation mine.
- 39.
This term is used by Françoise Dastur to describe Derrida’s emphasis on free play of signs. According to her, “(...) the lack of the presence, in place of being experienced as a defect, should be an invitation to an active interpretation. This doubtless means, if we retranslate it in Nietzschean terms, that we should be capable of transforming the passive nihilism, which is a denial of life, into an active nihilism, which is invention and creation, and as such free of all nostalgia and all hope in an afterlife (au-delà) that would be that of the full presence” (Ibid., 114, translation mine).
- 40.
Derrida, De la Grammatologie, 206, translation mine.
- 41.
Ibid., translation mine.
- 42.
Bennigton, “Derridabase,” 74, translation mine.
- 43.
Ibid., translation mine.
- 44.
See Derrida, De la Grammatologie, 92.
- 45.
Ibid., 206, translation mine.
- 46.
See Ibid., 92.
- 47.
Pierre Chassard, Derrida: La Destruction du Monde (Brussel: Mengal, 2004), 86, translation mine.
- 48.
Derrida, De la Grammatologie, 206, translation mine.
- 49.
Jacques Derrida, Marges de la Philosophie (Paris: Les Éditions de Minuit, 1972), 47, translation mine.
- 50.
Chassard, Derrida: La Destruction du Monde, 84, translation mine.
- 51.
Derrida, Marges de la Philosophie, 47, translation mine.
- 52.
In his Sein und Zeit (Being and Time), we could still consider the difference as still connected to the metaphysical structure of the Being in the project of finding the “authentic.” See note 806 supra.
- 53.
Derrida, L′Écriture et la Différence, 426, translation mine.
- 54.
Ibid., 427, translation mine.
- 55.
Milovic, Comunidade da Diferença, 130, translation mine.
- 56.
See Derrida, L′Écriture et la Différence, 427.
- 57.
Jacques Derrida, “The Deconstruction of Actuality,” in Negotiations: Interventions and Interviews, 1971–2001 (Stanford, CA: Stanford University Press, 2002), 93.
- 58.
Bernstein, “An Allegory of Modernity/Postmodernity: Habermas and Derrida,” 83.
- 59.
See Habermas, Der philosophische Diskurs der Moderne, 219/46.
- 60.
Bernstein, “An Allegory of Modernity/Postmodernity: Habermas and Derrida,” 93.
- 61.
Jacques Derrida, “Entretien par Jerôme-Alexandre Nielsberg – Penseur de l'événement,” L'Humanité 28 (January 2004), translation mine.
- 62.
Jacques Derrida, The Politics of Friendship (London, New York: Verso, 2005).
- 63.
Derrida, Rogues: Two Essays on Reason, 86.
- 64.
Derrida, “Politics and Friendship,”182.
- 65.
Derrida, The Politics of Friendship, 306.
- 66.
Derrida, “Politics and Friendship,”180.
- 67.
Elisabeth Rothemberg, “Introduction,” in Negotiations: Interventions and Interviews, 1971–2001 (Stanford, CA: Stanford University Press, 2002), 5.
- 68.
Jacques Derrida, “Negotiations,” in Negotiations: Interventions and Interviews, 1971–2001 (Stanford, CA: Stanford, 2002), 17.
- 69.
Ibid., 13.
- 70.
Ibid.
- 71.
Ibid.
- 72.
Derrida, Rogues: Two Essays on Reason, 38.
- 73.
Ibid.
- 74.
Derrida, “Negotiations,” 14.
- 75.
According to Derrida, “So negotiation is constantly under way, the negotiation which is none other than deconstruction itself” (Ibid., 16).
- 76.
Ibid.
- 77.
Ibid.
- 78.
According to Derrida, “To invent is to produce iterability and the machine for reproduction, simulation and simulacrum.” (Jacques Derrida, Psyché: Inventions de l'Autre (Paris: Galilée, 1987), translation mine).
- 79.
Jacques Derrida, “As If It Were Possible,” in Negotiations: Interventions and Interviews, 1971–2001 (Stanford, CA: Stanford University Press, 2002), 352.
- 80.
According to Derrida:
“What announced itself thus as ‘différance’ had this singular quality: that it simultaneously welcomed, but without dialectical facility, the same and the other, the economy of analogy – the same only deferred, relayed, delayed – and the rupture of all analogy, absolute heterology. Yet one could also, in this context, retreat this question of différance as a question of legacy. The legacy would consist here in remaining faithful to what is received (…), while breaking with the particular figure of what is received” (Derrida,“As if It Were Possible,” 352).
- 81.
Ibid., 358–359.
- 82.
Derrida, “Negotiations,” 16.
- 83.
Derrida, Rogues: Two Essays on Reason, 86.
- 84.
Bernstein, “An Allegory of Modernity/Postmodernity: Habermas and Derrida,” 87.
- 85.
As Simon Critchley correctly remarks by stressing the non-regulative idea behind its concept:
“Democracy-to-come is much easier to describe in negative rather than positive terms. Recalling the deconstruction of the idea of presence in his earlier work, Derrida is particularly anxious to distinguish democracy-to-come from any idea of a future democracy, where the future would be a modality of presence, namely the not-yet-presence. Democracy-to-come is not to be confused with the living present of liberal democracy, lauded as the end of history by Fukuyama, but neither is it a regulative idea or an idea in the Kantian sense; nor is it even a utopia, insofar as all these conceptions understand the future as modality of presence. For Derrida, and this is something particular clear in Spectres of Marx, it is a question of linking democracy-to-come to the messianic experience of the here and now (l´ici-maintenant), without which justice would be meaningless. Namely, what was described above as ‘the universal dimension of experience’ that ‘belongs to all languages’. So, the thought here is that the experience of justice as the here and now is the à venir of democracy. In other words, the temporality of democracy is advent, it is futural, but it is arrival happening now, it happens – and one thinks of Benjamin – as the messianic now blasting through the continuum of the present” (Simon Critchley, “Frankfurt Improptu – Remarks on Derrida and Habermas,” in The Derrida-Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006). 108).
In this respect, Derrida remarks that “in speaking of an unconditional injunction or of a singular urgency, in invoking a here and now that dos not await an indefinitely remote future assigned by some regulative idea, one is not necessarily pointing to the future of a democracy that is going to come or that must come or even a democracy that is the future” (Derrida, Rogues: Two Essays on Reason, 90).
- 86.
Derrida, “Negotiations,” 17.
- 87.
Ibid.
- 88.
Derrida, Rogues: Two Essays on Reason, 90.
Derrida, “Negotiations,” 17.
- 89.
Derrida, “Politics and Friendship,” 180.
- 90.
John D. Caputo, “L´Idée Même de L'à Venir,” in La Démocratie à Venir: Autour de Jacques Derrida, ed. Marie-Louise Mallet (Paris: Galigée, 2004), 302, translation mine.
- 91.
Bonig Honnig, “Dead Rights, Live Futures: On Habermas's Attempt to Reconcile Constitutionalism and Democracy,” in The Derrida-Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 169.
- 92.
Derrida, “Politics and Friendship,” 180.
- 93.
Ibid.
- 94.
See Gasché, Inventions of Difference, 228.
- 95.
Derrida, “As if It Were Possible,” 344.
- 96.
Gasché, Inventions of Difference, 228.
- 97.
See Derrida, “Force of Law,” 955.
- 98.
Ibid.
- 99.
Ibid.
- 100.
Rodolphe Gasché, “L'Étrange Concept de Responsabilité,” in La Démocratie à Venir: Autour de Jacques Derrida, ed. Marie-Louise Mallet (Paris: Galilée, 2004), 364, translation mine.
- 101.
Jacques Derrida, “Performative Powerlessness – A Response to Simon Critchley,” in The Derrida-Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press', 2006), 113–114.
- 102.
See Derrida’s analysis of Carl Schmitt in his book The Politics of Friendship. A very interesting debate on this subject can also be found in Critchley, “Frankfurt Improptu – Remarks on Derrida and Habermas,” 98–109.
- 103.
Derrida, The Politics of Friendship, 219.
- 104.
Derrida, Rogues: Two Essays on Reason, 36.
- 105.
Derrida, The Politics of Friendship, 219.
- 106.
Critchley, “Frankfurt Improptu – Remarks on Derrida and Habermas,” 105.
- 107.
Mark Dooley and Liam Kavanagh, The Philosophy of Derrida (Stocksfield: Acumen, 2007).
- 108.
Lasse Thomassen, “‘A Bizarre, Even Opaque Practice': Habermas on Constitutionalism and Democracy,” in The Derrida-Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 185.
- 109.
Ibid., 186.
- 110.
Lassen Thomassen sums up, in a very clear manner, this perception in the following passage:
“The relationship between constitutionalism and democracy is not one of either internality or externality, either mutually enabling conditions or limits. You cannot have one without the other, yet they stand at a slight distance from one another. It is not a distance that can be measured, or a gap that can be closed, though. This lack (or lag), the slight but infinite distance between constitutionalism and democracy, cannot be recuperated; it is constitutive. This is what makes constitutional democracy [go] around. Without the undecidability, constitutional democracy would not work. Without democracy as its condition of possibility, constitutionalism would not be properly constitutional, yet democracy, at the very moment it makes constitutionalism possible, also limits it. But, if democracy needs constitutionalism (and vice versa), then democracy cannot repair a lack in constitutionalism, because democracy will itself be lacking as a result of this incompleteness in constitutionalism. We cannot escape the vicious circularity and infinite regress” (Ibid., 186).
- 111.
Derrida, Rogues: Two Essays on Reason, 87.
- 112.
Derrida, “The Deconstruction of Actuality,” 93.
- 113.
Bernstein, “An Allegory of Modernity/Postmodernity: Habermas and Derrida,” 85.
- 114.
Derrida, Rogues: Two Essays on Reason, 86.
- 115.
See Derrida, “Force of Law,” 967.
- 116.
Bernstein, “An Allegory of Modernity/Postmodernity: Habermas and Derrida,” 84.
- 117.
Derrida, “Negotiations,” 31.
- 118.
We shall examine this discussion further in order to show how methods and criteria, such as balancing, can become a sort of logocentrism that fills the gap between constitutionalism and democracy.
- 119.
See, for this purpose, Derrida, “Declarations of Independence,” 46–54.
- 120.
See Milovic, “A Impossibilidade da Democracia,” 259.
- 121.
Derrida develops a very instigating analysis of democracy and its autoimmune character in his book Rogues: Two Essays on Reason in which he remarks that, by assuming that every identity presupposes the other and thus cannot be entirely filled, autoimmunity is part of democracy as a means to keep it open to the realm of possibilities, including the threat of the closeness of the play. According to him:
“If an event worthy of this name is to arrive or happen, it must, beyond all mastery, affect a passivity. It must touch an exposed vulnerability, one without absolute immunity, without indemnity; it must touch this vulnerability in its finitude and in a nonhorizontal fashion, there where it is not yet or is already no longer possible to face or face up the unforeseeability of the other. In this regard, autoimmunity is not an absolute ill or evil. It enables an exposure to the other, to what and to who comes – which means that it must remain incalculable. Without autoimmunity, with absolute immunity, nothing would ever happen or arrive; we would no longer wait, await, or expect, no longer expect one another, or expect any event” (Derrida, Rogues: Two Essays on Reason, 152).
- 122.
Ibid., 86.
- 123.
Derrida,“Force of Law,” 945.
- 124.
Ibid., 961.
- 125.
Ibid., 963.
- 126.
Jacques Derrida, “Deconstruction and the Possibility of Justice,” Cardozo Law Review II, no. 5–6 (July–August 1990).
- 127.
Derrida, “Force of Law,” 945.
- 128.
Ibid., 943.
- 129.
Derrida, Rogues: Two Essays on Reason, 149–150.
- 130.
See Derrida, “Negotiations,” 16.
- 131.
Ibid.
- 132.
Derrida, Rogues: Two Essays on Reason, 150.
- 133.
Derrida, “Negotiations,” 17.
- 134.
Derrida, “Force of Law,” 925.
- 135.
According to Derrida:
“A first precaution against the risks of substantialism or irrationalism that I just evoked involves the differential character of force. For me, it is always a question of differential force, of difference as difference of force, of force as différance (différance is a force différée-différante), of the relation between force and norm, force and signification, performative force, illocutionary or perlocutionary force, of persuasive and rhetorical force, of affirmation by signature, but also and especially of all the paradoxical situations in which the greatest force and the greatest weakness strangely enough exchange places. And that is the wholly history” (Ibid., 929).
- 136.
Ibid., 935.
- 137.
Ibid., 943.
- 138.
Ibid.
- 139.
Ibid.
- 140.
Ibid., 945.
- 141.
Ibid.
- 142.
Ibid., 960.
- 143.
Ibid., 961.
- 144.
Ibid.
- 145.
Ibid.
- 146.
Ibid., 963.
- 147.
Ibid., 965.
- 148.
Ibid.
- 149.
Ibid.
- 150.
Derrida, “The Deconstruction of Actuality,” 93.
- 151.
Derrida, “Force of Law,” 967.
- 152.
Ibid., 969.
- 153.
Ibid., 967.
- 154.
Ibid.
- 155.
Ibid., 969.
- 156.
Ibid., 971.
- 157.
Ibid.
- 158.
Ibid.
- 159.
See the fourth chapter.
- 160.
Bennington, “Derridabase,” 74.
- 161.
See Robert Alexy, “Balancing, Constitutional Review, and Representation,” International Journal of Constitutional Law (Oxford University Press and New York School of Law) 3, no. 4 (2005): 580.
- 162.
Ibid., 579.
- 163.
See Robert Alexy, Theorie der Grundrechte (Frankfurt a.M.: Suhrkamp, 1994), 71–74.
- 164.
See Ibid., 100.
- 165.
Ibid., 75.
- 166.
See Robert Alexy, Recht, Vernunft, Diskurs (Frankfurt a.M.: Suhrkamp, 1995), 104.
- 167.
As we will shortly see, even this discursive character turns into a monologue.
- 168.
See the last chapter.
- 169.
See Alexy, “Balancing, Constitutional Review, and Representation,” 577.
- 170.
See Ibid., 577; Alexy, Theorie der Grundrechte, 498–501; Alexy, Recht, Vernunft, Diskurs: Studien zur Rechtsphilosophie; Robert Alexy, “Discourse Theory and Human Rights,” Ratio Juris 9, no. 3 (August 2007): 209–35.; Robert Alexy, Theorie der juristischen Argumentation: Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung (Frankfurt a.M.: Suhrkamp, 1989).
- 171.
See the last chapter (Sect. 4.2).
- 172.
See Alexy, Theorie der Grundrechte, 37–38.
- 173.
According to Alexy, the internal justification relates to the connection between the justification and the premises, that is, whether the decision resulted from a justification that logically followed the premises (See Alexy, Theorie der juristischen Argumentation, 273). It refers to the formal-analytical structure of legal justification, which guarantees its universality. We can call it the “rule and form of the formal justice” (Ibid., 280, translation mine). The internal justification differs from the external justification, which relates to the justification of the premises that are adopted in the internal justification, and which, according to Alexy, can have different origins: “(1) rules of positive law, (2) empirical statements, and (3) premises that are neither empirical statements nor rules of positive law.” They are thus the contents inserted into the logical system of justification.
- 174.
Alexy, “Balancing, Constitutional Review, and Representation,” 574.
- 175.
See Robert Alexy, “Law and Correctness,” in Law and Opinion at the End of the Millenium:Current Legal Problems, ed. Michael D. A. Freeman (Oxford: Oxford University Press, 1988), 221.
- 176.
Alexy, “Balancing, Constitutional Review, and Representation,” 581.
- 177.
We can observe this characteristic in Alexy’s defense of his theory when he, by observing the decision of the Titanic case (BverfGE, 86, 1) with respect to the inconvenience of an interference with the freedom of the press, affirmed that “this is an argument, and it is not a bad argument” (Robert Alexy, “Constitutional Rights, Balancing, and Rationality,” Ratio Juris 16, no. 2 (June 2003): 139); or when he, by recognizing the intensive interference with the plaintiff’s freedom of personality on account of the word “cripple,” mentioned that “this is, first, argument, and, second, a good argument” (Ibid., 139). Neither the graduation of the interference (which leads to the result of the decision) nor the result was achieved by linguistic interaction; they both stemmed from the judge’s capacity to place herself in the plaintiff’s situation and understand whether the interference was light, moderate or intense. As we will investigate through Habermas’s approach, the validity claim – associated with the claim to correctness –, in this situation, is not projected into a discursive interaction but stems from an observation made by the judge’s conscience. Obviously, the judge has the capacity to express whether the argument is good or not (this is, besides, a condition of any critique), but, democratically speaking, any judgment based on validity claims needs to be projected into an intersubjective perspective. This refers to the external legitimacy of any discourse.
- 178.
Ibid., 139.
- 179.
See Alexy, “Balancing, Constitutional Review, and Representation,” 575. See also the last chapter.
- 180.
Robert Alexy, “Discourse Theory and Fundamental Rights,” in Arguing Fundamental Rights, ed. Agustín José Menéndez and Erik Oddvar Eriksen (Dordrecht: Springer, 2006), 27.
- 181.
See Alexy, “Law and Correctness,” 208.
- 182.
Ibid.
- 183.
Ibid., 217.
- 184.
See Ibid., 205–221.
- 185.
Ibid., 208.
- 186.
Ibid.
- 187.
Ibid.
- 188.
Ibid., 209.
- 189.
Ibid., 221.
- 190.
Derrida, “Force of Law,” 929.
- 191.
Ibid., 971.
- 192.
See Alexy, “Law and Correctness,” 216.
- 193.
Ibid., 221.
- 194.
Ibid., 211.
- 195.
Ibid., 216.
- 196.
Evidently, in adjudication, these different types of arguments are also relevant for the decision, but, as we will shortly examine, they cannot be balanced with legal arguments as sources of equivalent weight, for this can disrupt the enforceability of law and, mostly, the very premise of separation of powers.
- 197.
Erik Oddvar Ericksen, “Democratic or Jurist-Made Law?,” in Arguing Fundamental Rights, ed. Agustín José Menéndez and Erik Oddvar Eriksen (Dordrecht: Springer, 2006), 83.
- 198.
Alexy, “Law and Correctness,” 207.
- 199.
Ibid.
- 200.
Ibid.
- 201.
Ibid.
- 202.
See the last chapter.
- 203.
Alexy attempts, in response to his critiques, to sustain that his theory of legal discourse as a special case of general practical discourse respects the institutional background. He remarks that “what is correct in a legal system essentially depends on what is authoritatively or institutionally fixed and what fits into it. It must not contract the authoritative and coherence with the whole. If one wants to express this in a short formula, it can be said that legal argumentation is bound to statutes and to precedents as to observe the system of law elaborated by legal dogmatics” (Alexy, “The Special Case Thesis,” 375). However, although bringing this defense of coherence and institutional background, at the end, the focus is on how different arguments can fit into the analytical-structure of reasoning in which balancing is employed. It suffices that non-institutional arguments be integrated in this structure: “General practical arguments have to float through all institutions if the roots of these institutions in practical reason shall not be cut off. General practical arguments are non-institutional arguments. General non-institutional arguments floating through institutions may be embedded, integrated, and specified as much as one wants, as long as they remain arguments they retain what is essential for this kind of argument: their free and non-institutional character” (Ibid., 384). We will examine this issue in the next chapter.
- 204.
See the first chapter.
- 205.
See the last chapter.
- 206.
Eriksen, “Democratic or Jurist-Made Law?,” 84.
- 207.
Alexy, “Balancing, Constitutional Review, and Representation,” 579.
- 208.
See Alexy, “Law and Correctness,” 209.
- 209.
This is also the basis of Alexy’s critique of theories based on coherence, as we can observe in Klaus Günther’s Der Sinn für Angemessenheit: Anwendungsdiskurse in Moral und Recht (Frankfurt a.M.: Suhrkamp, 1988). For the claim to legal correctness requires a claim to moral correctness, there is no possibility to think that the legal system alone can provide the answers in the realm of constitutional adjudication. As we will investigate in the next chapter, for Alexy, “radical coherence theories do not put up with the doubtlessly reasonable and correct thesis that systematical completeness and systematical connection are essential criteria of rationality and correctness. They assert further that coherence is a sufficient and, indeed, the only criterion in hard cases” (See Alexy, “Law and Correctness,” 217). See also his critique of coherence in Robert Alexy, “Coherence and Argumentation or the Genuine Twin Criterialess Super Criterion,” in On Coherence Theory of Law, ed. Aulis et al. Aarnio (Lund: Juristförlaget I Lund, 1998), 47.
- 210.
Alexy, “Law and Correctness,” 217.
- 211.
See the last chapter.
- 212.
See Alexy, Theorie der Grundrechte, 18, translation mine.
- 213.
See Alexy, “Balancing, Constitutional Review, and Representation,” 577.
- 214.
See Alexy, Theorie der Grundrechte, 27.
- 215.
See Alexy, Theorie der juristischen Argumentation.
- 216.
See Ibid., 15.
- 217.
See ALEXY, Theorie der Grundrechte, 32.
- 218.
According to Alexy, balancing, for example, says what has to be rationally justified. See Alexy, Theorie der Grundrechte, 152.
- 219.
Ibid., 19.
- 220.
See Robert Alexy’s following texts: “The Special Case Thesis”; “Balancing, Constitutional Review, and Representation”; “On Balancing and Subsumption. A Structural Comparison”; “Discourse Theory and Fundamental Rights”; “Coherence and Argumentation or the Genuine Twin Criterialess Super Criterion”; “Postscript,” in A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002), 388–425; Recht, Vernunft, Diskurs (Frankfurt a.M.: Suhrkamp, 1995).
- 221.
See Carlos Bernal Pulido, “The Rationality of Balancing,” Archiv für Rechts – und Sozialphilosophie 92, no. 2 (2006); Carlos Bernal Pulido, “On Alexy’s Weight Formula,” in Arguing Fundamental Rights, ed. Agustín José Menéndez and Erik Oddvar Eriksen (Dordrecht: Springer, 2006); Laura Clérico, Die Struktur der Verhältnismäßigkeit (Baden-Baden: Nomos, 2001); Luís Virgílio Afonso da Silva, “O Proporcional e o Razoável,” Revista dos Tribunais, no. 798 (April 1992): 23–50; Virgílio Afonso da Silva, Grundrechte und gesetzgeberische Spielräume (Baden-Baden: Nomos, 2003) [In Portuguese: Silva,. Direitos fundamentais: Conteúdo Essencial, Restrições e Eficácia (São Paulo: Malheiros, 2009)].
- 222.
We can see, for example, Alexy’s response to Jürgen Habermas’s critique. The debate is centered on demonstrating, through formulas and some BVG’s decisions, the rationality he defends. See Alexy, “Balancing, Constitutional Review, and Representation”; Alexy, “Constitutional Rights, Balancing, and Rationality.”
- 223.
Alexy, “Coherence and Argumentation or the Genuine Twin Criterialess Super Criterion,” 47.
- 224.
Ibid., 47. Alexy calls these criteria, as the coherence, “criterialess criteria of rationality” (“Kriterienlose Rationalitätskriterien”).
- 225.
Alexy, “Postscript,” 404.
- 226.
Alexy says:
“Epistemic discretion in balancing gives rise to particular problems on account of its proximity to structural discretion in balancing, which can also be found in the decision just discussed (…) If the legislature is permitted to base its interferences with constitutional rights on uncertain premises, then it is possible that the protection afforded by constitutional rights will be refused on the basis of false assumptions, even though constitutional rights have in reality been breached. Constitutional rights would offer more protection if the legislature were to be refused an epistemic discretion” (Ibid., 416, emphasis mine).
- 227.
According to Alexy, “(…) the legislature could only interfere in any way with constitutional rights on the basis of empirical premises the truth of which was assured” (Ibid., 417).
- 228.
Derrida, Rogues: Two Essays on Reason, 151.
- 229.
Ibid.
- 230.
Ibid.
- 231.
Ibid., 150.
- 232.
Ibid., 151.
- 233.
Derrida, “Force of Law,” 981.
- 234.
Ibid.
- 235.
Kai Möller stresses, for example, that “for Alexy’s enterprise to succeed, his theory must have the potential to be applied fruitfully to different substantive theories of constitutional rights – to a socialist perspective, a libertarian perspective, or a liberal perspective. I call this the ‘framework character” of Alexy’s theory. Kai Möller, “Balancing and the Structure of Constitutional Rights,” International Journal of Constitutional Law 5, no. 3 (2007): 458).
- 236.
See Alexy, Theorie der Grundrechte, 27.
- 237.
Ibid., 17.
- 238.
Derrida, “Force of Law,” 971.
- 239.
Derrida, “Negotiations,” 17.
- 240.
Ibid.
- 241.
Dastur, Philosophie et Différence, 114.
- 242.
Bernstein, “An Allegory of Modernity/Postmodernity: Habermas and Derrida,” 81.
- 243.
Derrida, “Force of Law,” 967.
- 244.
Ibid.
- 245.
Derrida, “Negotiations,” 13.
- 246.
Derrida, “Force of Law,” 971.
- 247.
Derrida, “Negotiations,” 17.
- 248.
See the discussion of the logos of correctness in the last section.
- 249.
See Alexy, Theorie der Grundrechte, 38.
- 250.
See Ibid., 27.
- 251.
See Massimo La Torre, “Nine Critiques to Alexy’s Theory of Fundamental Rights,” in Arguing Fundamental Rights, ed. Agustín José Menéndez and Erik Oddvar Eriksen (Dordrecht: Springer, 2006), 59.
- 252.
According to Alexy, “balancing is not an alternative to argumentation but an indispensable form of rational practical discourse” (Alexy, “Constitutional Rights, Balancing, and Rationality,” 131).
- 253.
See Alexy, Theorie der Grundrechte, 71–104.
- 254.
Ibid., 79–80.
- 255.
Indeed, there are some cases to which the BVG did not apply balancing as a consequence of the nature of principles as optimization requirements. One important example is brought by Kai Möller:
“(…) Alexy does not come close to a full examination of the German jurisprudence: on a closer look, the claim that all constitutional rights are principles qua balancing norms cannot be sustained.”
“This becomes particularly clear in the case of the right to human dignity, protected in article 1 (1) BL. According to German constitutional theory, any interference with the right to dignity is prohibited: there is no balancing. Thus, there is at least one right that is not open to balancing and, therefore, not a principle in the Alexian sense. Alexy tries to resist this conclusion by arguing that the right to dignity is a rule in the sense that interference with it cannot be justified, but that its language is to open that courts can always do the necessary balancing beforehand, when determining whether something pertains to human dignity. This means for him that human dignity is, in truth, a principle (a balancing norm) just like other constitutional rights.”
“(…) However, there have been developments in German jurisprudence since 1985 that show the limits of Alexy’s approach.”
“One of the laws passed in Germany as a response to the terrorist attacks of September 11, 2001, is the Aviation Security Act [Luftsicherheitsgesetz of January 11 2005, Bundesgesetzblatt 2005 I], allowing the government to shoot down planes that had been hijacked and were likely to be used as terrorist weapons. The FCC has declared this unconstitutional and a violation of human dignity, arguing that shooting down a plane with innocent passengers aboard violates the human dignity of those passengers [BVERG, 1 BvR 357/05 of February 15, 2006]. There was no balancing involved. Even in a case where it was clear that many more people would die if the plane were not shot down, the destruction of the plane would still be impermissible. The concern here is not with the merits of this or any specific judgment, doctrine, or conception of rights, but only to demonstrate that even in the jurisprudence of the FCC, which is the material on which Alexy builds his theory, there are cases where the Court obviously rejects a balancing approach. Moreover, these are cases which Alexy’s theory has no capacity to explain, other than by conceding that some constitutional rights are “rules,” or, as I prefer to call them, balancing-free norms.” (Möller, “Balancing and the Structure of Constitutional Rights,” 465–466, emphasis mine).
- 256.
In Brazilian reality, for instance, only recently the principle of proportionality and balancing in particular, similarly to their configuration in Germany, has been deployed. The history of STF’s decisions is marked by distinct approaches to the interpretation of constitutional rights that are not directed linked to the perspective of principles as optimization requirements. In the United States, as largely known, the Supreme Court has historically based its interpretation on a variety of arguments, and, in many of its cases, did not understand principles with this optimization perspective.
- 257.
In the next chapter, we will investigate other different approaches in order to show that balancing, from the premise that principles are optimization requirements, is not uncontroverted.
- 258.
Alexy derives the consequence that principles are optimization requirements by differentiating them from rules. See Alexy, Theorie der Grundrechte, 75.
- 259.
See Alexy, “Balancing, Constitutional Review, and Representation,” 572.
- 260.
See Alexy, Theorie der Grundrechte, 100.
- 261.
Ibid.
- 262.
Ibid., 272.
- 263.
See La Torre, “Nine Critiques to Alexy’s Theory of Fundamental Rights,” 59–60.
- 264.
See Alexy, Theorie der Grundrechte, 272.
- 265.
Ibid.
- 266.
Derrida,“Force of Law,” 967.
- 267.
Ibid.
- 268.
Alexy, “On the Structure of Legal Principles,” 295. See the last chapter.
- 269.
See Alexy, “On Balancing and Subsumption: A Structural Comparison,” 440.
- 270.
For instance, the double-triadic model. See Ibid., 445.
- 271.
See the last chapter.
- 272.
See Alexy, Theorie der juristischen Argumentation, 263ff. See the last chapter.
- 273.
See Alexy, “Law and Correctness,” 217.
- 274.
Ibid.
- 275.
See the second chapter.
- 276.
See the last chapter.
- 277.
Derrida, Rogues: Two Essays on Reason,150.
- 278.
Derrida, “Force of Law,” 929.
- 279.
See Alexy, Theorie der Grundrechte, 32–38.
- 280.
Möller, “Balancing and the Structure of Constitutional Rights,” 460.
- 281.
See Alexy, Theorie der Grundrechte, 32.
- 282.
Ibid., 31, translation mine.
- 283.
See Alexy, “Law and Corretness,” 217.
- 284.
See Alexy, Theorie der Grundrechte, 29.
- 285.
See Alexy, “Law and Correctness,” 217.
- 286.
Derrida, “Force of Law,” 929.
- 287.
Derrida, “Negotiations,” 16.
- 288.
Derrida, “Force of Law,” 929.
- 289.
Ibid.
- 290.
Ibid., 935.
- 291.
See Derrida, “Force of Law,” 943.
- 292.
See next chapter, where we explore this characteristic regarding the distinction Ronald Dworkin sets forth between arguments of policies and arguments of principles. See also the first part, where we examined the BVG’s and STF’s shift to activism, and thus to the deployment of political arguments in decision-making.
- 293.
This is one more example of how Alexy seems to confuse values with principles. According to him, “the application of evaluative criteria that have to be balanced with each other corresponds to the application of principles.” See Alexy, Theorie der Grundrechte, 131.
- 294.
Derrida, “Force of Law,” 929.
- 295.
Ibid.
- 296.
Ibid.
- 297.
See Ibid.
- 298.
Ibid.
- 299.
Alexy, “The Special Case Thesis,” 377, emphasis mine.
- 300.
See Alexy, Theorie der juristischen Argumentation, 259–360.
- 301.
Alexy, “Balancing, Constitutional Review, and Representation,” 578.
- 302.
According to Alexy, the parliament works with the concepts of election and majority rule. However, to achieve the configuration of a deliberative democracy, it must develop according to arguments, which makes this representation “volitional or decisional as well as argumentative and deliberative” (Ibid., 579).
- 303.
Ibid.
- 304.
Ibid.
- 305.
Ibid., 580.
- 306.
Ibid.
- 307.
Ibid.
- 308.
Ibid.
- 309.
Ibid.
- 310.
Ibid.
- 311.
Alexy, “The Special Case Thesis,” 377.
- 312.
See Alexy, “Balancing, Constitutional Review, and Representation,” 580.
- 313.
Derrida, “Declarations of Independence,” 47.
- 314.
Derrida acknowledges that every new order is full of history, “every signature finds itself thus affected” (Derrida, “Declarations of Independence,” 49). He remarks that there is no pure founding moment, since it is always already affected by iterability (See Derrida,“Force of Law,” 997). Yet, this revolutionary moment, notwithstanding the suspension of the law, is the very history of law. His words:
“This moment of suspense, this épokhè, this founding or revolutionary moment of law is, in law, an instance of non-law. But it is also the whole history of law. This moment always takes place and never takes place in a presence. It is a moment in which the foundations of law remain suspended in the void or over the abyss, suspended by a pure performative act that would not have to answer to or before anyone. The supposed subject of this pure performative would no longer be before the law, or rather he would be before a law not yet determined, before the law as before a law not yet existing, a law yet to come, encore devant et devant venir” (Ibid., 993).
- 315.
See Ibid., 943.
- 316.
See Derrida, “Declarations of Independence,” 51.
- 317.
Seyla Benhabib, “Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida,” in The Derrida-Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 133.
- 318.
See Derrida, “Force of Law,” 943.
- 319.
Derrida, “Declarations of Independence,” 47.
- 320.
See Benhabib, “Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida,” 134.
- 321.
Derrida, “Declarations of Independence,” 48.
- 322.
Derrida, “Force of Law,” 943.
- 323.
See Derrida, “Declarations of Independence,” 48.
- 324.
Ibid.
- 325.
Ibid.
- 326.
Ibid.
- 327.
Ibid., 49.
- 328.
Ibid.
- 329.
Ibid.
- 330.
See Derrida, “Force of Law,” 997.
- 331.
Ibid.
- 332.
Derrida, Rogues: Two Essays on Reason, 86.
- 333.
Although Seyla Benhabib argues that Derrida’s philosophy does not exactly point out a new principle of political legitimation in history, for, according to this philosophy, “appeals to humanity and morality appear all too indefensible” (Benhabib, “Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida,” 143), Derrida does not diminish the value of history, its tensions and institutions as indispensable elements to constitutional democracy. He only does not see here the need to transform them into a sort of moralizing principles or a regulative idea that overcomes the singularity of the context. This is why, when he introduces the concept of iterability, he establishes at the core of this “calculable” the opening to the other, as a stress on the singularity of the context. This is, obviously, a complex question, but it does not mean that Derrida is only, as Benhabib’s words seem to demonstrate, examining the American Declaration of Independence as if it were “harboring the conflation of the performative with the constative and the normative” (Ibid., 143). This tense relationship between the constative and performative is marked by deconstruction, which is not, as before mentioned, destruction, but rather the “whole history” (Derrida, “Force of Law.” 929). Therefore, there is, indeed, a principle of political legitimacy, which is not a moralizing principle, but rather the iterability, which is shaped by the negotiation between the “calculable” and the to come.
- 334.
Derrida, “Force of Law,” 1007–1009.
- 335.
Derrida, Rogues: Two Essays on Reason, 85.
- 336.
Ibid., 86.
- 337.
Ibid., 86–87.
- 338.
See Derrida, “Force of Law,” 997.
- 339.
See Derrida, “Declarations of Independence,” 50.
- 340.
Undecidability, examined in Derrida’s second aporia of his Force of Law, is, according to him, “the experience of that which, though heterogeneous, foreign to the other of the calculable and the rule, is still obliged – it is of obligation that we must speak – to give itself up to the impossible decision, while taking account of law and rules” (Derrida, “Force of Law,” 963).
- 341.
Derrida, “Declarations of Independence,” 50.
- 342.
Ibid., 51.
- 343.
Ibid., 50.
- 344.
Ibid., 51.
- 345.
Ibid.
- 346.
Ibid., 52.
- 347.
Ibid., 51.
- 348.
Ibid., 52.
- 349.
Benhabib, “Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida,” 140.
- 350.
Ibid., 141.
- 351.
See Derrida, “Force of Law,” 943.
- 352.
Ibid., 997.
- 353.
Ibid., 925.
- 354.
See Derrida, Rogues: Two Essays on Reason, 87.
- 355.
See Derrida, “Declarations of Independence,” 49. On the impossibility of pure foundation, see Derrida, “Force of Law,” 997.
- 356.
Derrida, “Force of Law,” 981.
- 357.
Ibid.
- 358.
Ibid., 983.
- 359.
Ibid., 985.
- 360.
In the particular case of the United States, we can observe this aspect in the exclusion of Black American slaves and American Indians, who, as Bernhabib remarks, “are included in the second ‘we’, in the we to whom the law of the land applies, but they have no voice in the articulation of the law of the land” (Benhabib, “Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida,” 136).
- 361.
Milovic, “A Impossibilidade da Democracia,” 259, translation mine.
- 362.
Derrida, “Force of Law,” 995.
- 363.
Milovic, “A Impossibilidade da Democracia,” 259.
- 364.
Derrida, “Force of Law,” 1009.
- 365.
See the cases discussed in the first chapter and the analysis of the development of the German BVG and the Brazilian STF in the second and third chapters, respectively.
- 366.
Alexy, “The Special Case Thesis,” 377.
- 367.
See Alexy, “Discourse Theory and Fundamental Rights,” 27.
- 368.
Derrida, “Force of Law,” 1003.
- 369.
Ibid.
- 370.
Alexy, “Balancing, Constitutional Review, and Representation,” 578.
- 371.
Ibid., 580.
- 372.
See the last chapter.
- 373.
Jürgen Habermas, Between Facts and Norms (Cambridge: Polity Press, 1996), 263.
- 374.
See Ibid., 262.
- 375.
We will develop another way of examining this problem in the next chapter through the differentiation between discourses of justification and discourses of application.
- 376.
Alexy, “Balancing, Constitutional Review, and Representation,” 580.
- 377.
Ibid.
- 378.
As Lasse Thomassen argues: “Constitutionalism is supposed to protect the singularity of each individual, but must itself be mediated by democracy” (Thomassen, “A Bizarre, Even Opaque Practice: Habermas on Constitutionalism and Democracym,” 180).
- 379.
Alexy, “Balancing, Constitutional Review, and Representation,” 578.
- 380.
In the next chapter, we will explore this question through the discussion of the mutual and presupposed relationship between private and public autonomy. In constitutional democracy, both must be, despite their tense character, continuously reinforced. This is, besides, one of the constitutional courts’ roles, as Habermas remarks: “The constitutional court should keep watch over just that system of rights that makes citizens’ private and public autonomy possible.” (Habermas, Between Facts and Norms, 263).
- 381.
Derrida, Rogues: Two Essays on Reason, 87.
- 382.
Derrida, “Force of Law,” 1003.
- 383.
In a more radical perspective, which is certainly not Alexy’s one, we can mention the problems of a substantive conception of democracy. The history, as a matter of fact – as we can observe in discourses of identity, nationalisms, which have inspired many wars and regimes – is plenty of examples of how the assumption of a substantive content behind democracy can reveal this erosion of the singular. By the same token, the philosophy has many examples that expressed the essentialism by reinforcing the unity of people in opposition to the particular (we could indicate, for instance, Rudolf Smend’s substantive concept of politics in the construction of a content that would integrate the community (See Rudolf Smend, Verfassung und Verfassungsrecht (Berlin: Duncker & Humblot, 1928)) or Carl Schmitt’s homogenizing and unifying concept of people through the dichotomy between friend and enemy (See Carl Schmitt, Verfassungslehre (Berlin: Duncker & Humblot, 1957)).
- 384.
Another possible and interesting investigation in this matter we see in Hannah Arendt’s concept of “banalization of evil,” in which she stresses the death of politics, when the individuals, instead of actively participating in the construction of the public sphere through arguments, are manipulated as instruments for the exercise of power. In this case, without the critique of this form of domination, the totalitarian ideology transforms the individuals into a collectivity under the argument of a controlling power. See Hannah Arendt, Was ist Politik?: Fragmente aus dem Nachlaß (München: Piper, 1993); Hannah Arendt, Eichmann in Jerusalem: ein Bericht von der Banalität des Bösen (Leipzig: Reclam, 1990).
- 385.
Alexy, “Balancing, Constitutional Review and Representation,” 580.
- 386.
Ibid.
- 387.
Ibid.
- 388.
Alexy sustains that the examples he brought forward regarding some BVG’s decisions demonstrate how those objections are not strong enough to disturb his theory: “The analysis of the examples presented above shows that rational argument and, thereby, objectivity is possible in constitutional argumentation to a considerable degree. It shows, too, that the existence of cases in which the arguments lead to a stalemate represents no danger at all for constitutional review (Ibid.).
- 389.
This metaphysics will be better verified when, through the concept of limited rationality, we will critically reexamine these cases in the eighth chapter.
- 390.
See the first part.
- 391.
Alexy, “Balancing, Constitutional Review and Representation,” 580.
- 392.
Ibid.
- 393.
Ibid.
- 394.
Ibid., 579.
- 395.
See the second and third chapters.
- 396.
Derrida, Rogues: Two Essays on Reason, 86.
- 397.
Derrida, “Declarations of Independence.”
- 398.
Alexy, “Balancing, Constitutional Review, and Representation,” 578.
- 399.
Ibid., 580.
- 400.
See the first part.
- 401.
Martin Morris, “Deliberation and Deconstruction: The Condition of Post-National Democracy,” in The Derrida-Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 249.
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Benvindo, J.Z. (2010). When Différance Comes to Light: Balancing Within the Context of Deconstruction. In: On the Limits of Constitutional Adjudication. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-11434-2_5
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DOI: https://doi.org/10.1007/978-3-642-11434-2_5
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