Kant and Carl Schmitt, Habermas and Derrida, Baudrillard and Badiou

4 German Law Journal No. 10 (1 October 2003) - Legal Culture Book Review - Giovanna Borradori (Ed.), Philosophy in a Time of Terror. Dialogues with Jürgen Habermas and Jacques Derrida (University of Chicago Press, 2003).

By Martti Koskenniemi

[3] The invocation by Habermas of the Kantian ideal of cosmopolitan law against American unilateralism after "September 11" follows from his discursive theory of politics: the dark (power) politics of the United States, understood as hegemony, against the (weak and uncertain) legalism of Europe.[2] Habermas joins most "old European" intellectuals in seeing the world endangered less by terrorism than by the US response and in complaining about Europe's failure to oppose "the self-centered course of a callous superpower" (27).[3]

Though the International Criminal Court, the ABM Treaty or the Biological Weapons convention, all of which were rejected by the United States, are aspects of an old law, Habermas situates them firmly in a Kantian historical trajectory: "we have long found ourselves in the transition from classical international law to what Kant had anticipated as a state of world citizenry" (38). This is why there is need for American compliance, and why Europe will need to take on "the civilizing role" (27). The view of the tasks of international law, present and future, in the 18-page dialogue that Borradori conducts with Habermas is thoroughly familiar: a fragile voice of an integrating civilisation against the selfish egotism of the powerful.

[4] But when Jacques Derrida confesses that he, too, will "take the side of the camp that, in principle, by right of law, leaves a perspective open for perfectibility in the name of the 'political', 'democracy', 'international law', international institutions, and so on (114)", it may be more difficult to situate this in the context of his philosophy of deconstruction. In this 51-page dialogue, international law appears both as a somewhat ineffective and ambivalent - yet necessary - set of present constraints and as the promise of a cosmopolitan future. Again, the main danger is not from isolated "terrorists" but from the technological modernity that helped bring terrorism about and receives legitimacy from the victimhood now offered to the world's most powerful political entity. Again, the promise of resistance and progress are embodied in a Europe conceived as the representative of law: "Without forsaking its own memory, by drawing upon it, in fact, as an indispensable resource, Europe could make an essential contribution to the future of international law…"(116).

[5] To be sure, neither thinker believes that politics could be replaced by international law, even in the future. In addition to Kant, both take up the name of Carl Schmitt. Habermas accepts that invoking universal law may also sometimes work as an apology of hegemony. To counter the Schmittian reduction of universalism into a smokescreen over particular interests, he insists on democracy's self-correcting character, its nature as Bildung. Habermas accepts that the model of discursive democracy, coupled with loyalty to basic constitutional principles, works internationally in a more fragmented, distanced environment than the domestic order.

The difference is one of degree, however, not of principle, and recent developments towards the legalization of some aspects of international politics have worked to diminish it.[4] In any case, for Habermas, the hegemonic danger is checked by a logical fiat embedded in a truly democratic international public realm: "any deconstructive unmasking of the ideologically concealing use of universalistic discourses actually presupposes the critical viewpoints advanced by these same discourses. Moral and legal universalism is, thus, self-reflexively closed in the sense that its imperfect practices can only be criticized on the basis of its own standards" (42).

[6] Derrida, too, is conscious of the limits of law. He accepts Schmitt's view of the irreducibility of the (political) decision to any anterior structure but turns decisionism on its head. Deconstruction reveals that a universal democracy is always unfulfilled, always a democracy to-come. There is no closed system of ready-made responses that could only be "applied"...[11] Derrida accepts that it may be impossible to capture the present conflict in traditional categories, war, civil war, even "partisan war". The events are situated in an environment of semantic instability. "Terrorism" cannot be fixed in a definition. And yet, he points out, following Schmitt, this is one aspect of the politics of law: the attempt by the dominant power "to impose and, thus, to legitimate, indeed to legalize (for it is always a question of law) on a national or world stage, the terminology and the thus the interpretation that best suits it in a given situation" (105). [9]

Baudrillard suggests that an event can be an event only outside discourse and that it ceases to be one when captured by discourse, supra note 3, 21-5, 35. As discourse gives meaning, an "event" (in the heavy, Heideggerian sense also employed by Badiou) can only be meaningless. Derrida does not go that far. The event may be represented in discourse, even if it may be only revealed in deconstruction, through a glimpse at the "trace" it has left on the conceptual surface.