Petra Gehring (Can The Legal Order Respond)

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Can the Legal Order ‘Respond’?
Petra Gehring
Technical University Darmstadt
ABSTRACT. After a brief explanation of my approach, this paper questions the
foundations of a phenomenological theory of law, deploying the argument in
three steps. In a first step I reconstruct the connection between Anspruch and
Anrecht as developed in Waldenfels’ paradigm of responsiveness. Can law be
characterised as an order that is able to ‘respond’ in this specific sense? The sec-
ond step confronts the radical perspective of a phenomenology of the alien with
the question of order. Can a theory of order characterise law as ‘just,’ given that
modern positive law is explicitly contained in and founded on itself? In a third
step I review the boundaries of law. Would a phenomenology of law acknowl-
edge law as a dimension that – inside the boundaries of law as order – is struc-
turally able to react to the alien and to respond to alien appeals? The overall
answer to these questions will be negative. A phenomenology of the alien will
not surmount the boundaries inherent to the legal order as order – which push-
es the question of justice to the outer limits of the law. The question of the alien,
then, does not refer to questions within law; rather, it refers to the problem of
juridification or to the sacrifices to be made to obtain access to rights. Decisive
is the step into the realm of law, not a certain rule or a decision within that realm.
If one is to pursue the phenomenological viewpoint of the alien and the dual
theme of Anspruch (claim, appeal,and address) and Antwort, legal phenomena
should be considered from the problem of order – in a critical vein to be sure.
KEYWORDS. Bernhard Waldenfels, legal order, response, alien, phenomenol-

ogy, appeal, answer
“The claim of law is not addressed to anyone since it asserts itself

regardless of the person concerned.”
Bernhard Waldenfels, Bruchlinien der Erfahrung, p.133
“Heeding ‘unknown laws’ is no substitute for legislation….”

Bernhard Waldenfels, Antwortregister, p. 585
ETHICAL PERSPECTIVES: JOURNAL OF THE EUROPEAN ETHICS NETWORK 13, no. 3 (2006): 469-496.
© 2006 by European Centre for Ethics, K.U.Leuven. All rights reserved. doi: 10.2143/EP.13.3.2017783
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ETHICAL PERSPECTIVES – SEPTEMBER 2006
INTRODUCTION
L et me briefly sketch the framework of my argument with two gener-

al remarks, one on the cumbersome relationship between law and
phenomenology, the other on the expectations that may be raised by a
Waldenfelsian account of phenomenology.
a) Phenomenology and Law
Law, that is, modern, positive law, is no simple subject for phenomenol-
ogy. In contrast to moral certitude or theoretical truth, the law has no
form of ‘Evidence’ or ‘appearing’1 that can be accounted for in tradition-
al phenomenological terms. That is to say, it seems to defy the categories
in which we express the intertwinements of our awareness and the world
as it appears from a first person perspective. It is difficult to relate it to
experience inasmuch as it neither appears as a matter of conscience (but
rather as a matter of order) nor as an empirical fact (but rather as a nor-
mative ordering authority). It may well not be at all conceivable as given
for what phenomenology calls ‘experience.’
Of course law can be described. It is possible to discern ethical or
rational factors that play a role in the normative body of law. But law is
not determined as such if it is characterised as a ‘normative’ or ‘rational’
order. Neither of these predicates is basic when it comes to describing the
way in which we experience law imposing itself on us. This is one prob-
lem that phenomenology encounters in the field of law: the positive legal
order is not Evident in the sense of an order of experience. A phenome-
nology of law would thus first have to clarify the specific character of the
experienceability of modern law as positive law.
There is then a second problem: to conceive law as an independent
subject matter (if that is what it is), specifically to conceive it in its rela-
tionship to morals, phenomenology must make a decision about the spe-
cific character of the is-ought relationship in law. Is it the link to morals,
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GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?
i.e., to ‘justice,’ that tends to characterise the legal order? Or is it rather the
fact that law as an order transcends moral ideals of justice in a move
towards rational binding force? In the first case, law as an order would be
primarily ‘just,’ in the second case it would be primarily a ‘rational’ reduc-
tion, a minimum program, or a proceduralisation of morals.
Since Reinach’s day, there has been an awareness in phenomenology
that this opposition is to be set aside as superfluous and that it should be
given a positive turn with phenomenological resources: law is not just
‘neither-nor’ or reducible to something of one sort or another. Rather,
there is law, there are legal orders. Specifically, differentiated modern posi-
tive law shall thus be described by phenomenology as an order, as an
order of its own kind.
b) Order and Response: Waldenfels’s Phenomenology of Law
By virtue of two major shifts, Bernhard Waldenfels has fundamentally

changed phenomenology: he radicalised the idea of order, and he intro-
duced the motive of response into phenomenology. According to the first
idea, phenomena are not only set in constituting orders, but also in self-
inclusive, thus exclusive orders; and this inclusive and exclusive character
of orders is found in the midst of the world, in the midst and among the
phenomena themselves. And, according to the second idea, phenomena
bear upon us. We experience them in a mode of intentionality that is
already responsive to them. Even the mere givenness of something inti-
mates the alien, something not reckoned with in the initial and pre-pred-
icative sense we attempt to make of the world, and thus an ethical demand
in the midst of the world, in the midst of and among the phenomena
themselves.
Though Waldenfels’s phenomenology is a political phenomenology,
consistently analysing phenomena as results of ordering and normalising,
it is capable of radical description in the best sense of the word. It hones
the sensibility for boundaries, for effects of exclusion, and remains on the
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track of the implicitly responsive character of sense patterns. It is ethical-

ly sensitive and can still yield a cool description of normative states of
affairs, that is to say, a phenomenologically precise description. Is there
any reason why the tools of this thought, of a phenomenology of order
and of response, would not also advance the philosophical theory of law
and legal order? The question imposes itself, and since Waldenfels picks
up the topic at various points, it is not merely tempting, but indeed justi-
fied to bring it to bear on his work, inasmuch as it is a relatively funda-
mental problem.
Thus, I would like to reconstruct the perspectives of phenomenological

reflections on law with the help of three working questions that all con-
cern the complex of the order properties and the responsive properties of
law. Waldenfels characterises law as an order, more specifically as an order
that responds in the ethical sense. Thus, my question is: can the legal
order ‘respond’? To answer this question, I am going to reconstruct the
perspectives of the various phenomenological observations on law by
means of three working questions, corresponding to three sections, all
relating to the complex relationships between the specific properties of
law as order and as response.
In section (1), I shall reconstruct the relationship between ‘claim’ and
‘title’ (Anspruch and Anrecht) in Waldenfels’s paradigm of responsivity; in
this connection, I would like to raise the question to what extent law is an
order that can ‘respond.’ In section (2), I would like to treat the directly
ensuing question, namely whether law can be called ‘just’ from the radical
perspective of a phenomenology of the Other. In section (3), I shall bring
the matter to a head with the question of the limits of law. Should phe-
nomenology, based on the response as its ethical motive, characterise the
order called law as irreducible in a certain sense and as refractory to ethical-
political grounding? Should phenomenology constitutively determine law
such that within its limits as an order it would be structurally in a position
to respond to the address put by an Other, i.e., the Alien? Or should not
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the radical perspective critical of order dominate – a theme also proper to

Waldenfelsian phenomenology? In this case, the phenomenology of law
would, so to speak, bring the idea of the Alien to bear against law from
without; the legal order need not and could not be ‘irreducible’ for radi-
cal ethical reasons or in terms of a structural ‘responsive character.’ It
could then be said that because law is an order, the matter of the radical
Other is structurally ‘outside’ of the law. This means: precisely because
law, like all order, has limits, a phenomenology of order and of the radical
Other cannot take issue with the immanent sense limits of law, but rather
must pick up the point at which the law asserts itself in the name of jus-
tice as a purportedly all-competent order, and ‘juridifies’ practices, fields,
orders: in short, that which is alien to law.
This is the appeal with which my essay ends: it is not the Other in the
law, but rather the Other to law that marks the threshold of the legal order
and thus its essence. Responses to what is other can only be found
beyond the limits of juridification. It may be that a phenomenology of
law, a phenomenology of the genesis and application of law as order, can-
not be aligned with the radically ethical motive of response.
1. ‘CLAIM’ AND ‘TITLE’: CAN THE LEGAL ORDER ‘RESPOND’?
The topic of law only occurs in Waldenfels’s wide-ranging book

Antwortregister (Responsive Registers) after a basic correlation has been careful-
ly elaborated. This is the basic motif of the book: all modes of responding
– and all practice, all constitution of sense, all forms of Evidence irre-
ducibly involve response – are borne by ethical impulses. A ‘claim’ is
always involved in responding. Ethical subjection, the overwhelming sense
of being moved by an infinite demand, what Levinas calls the trace of the
Other, of the alien – these are the constitutive factors. Thus, there are no
‘mere’ objects, and there is no ethically neutral sense – just as the response
would not be a response without an ethical dimension.
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Against the background of the leitmotiv of the claim, Antwortregister

poses the question of the possibility of a “responsive ethics.” In what
form would it be possible by way of an ethics to come to terms with the
fact of being addressed, although this address inevitably has the form of
an “overclaim” so that it per se demands too much?2
Waldenfels’s proposal for a solution of the problem brings the law to
bear. Such an ethics, based “not on ought and can,” but on “claims to
which we respond” (AR, 557), is supposed to approach the threshold to
a “moral-legal prescriptive and proscriptive order” (ibid.). But it does this
very cautiously. Responsive ethics wants to begin with the Other without
transforming it into “a certain identifiable something” (ibid.). It would
remain alien to what is traditionally called the realm of the ethical as well
as the realm of law. From the perspective of a radical phenomenology of
response, this fundamental distance is nothing other than consistent. For
as Waldenfels stresses, “the question as to whether claims are justified or
not cannot stand at the beginning inasmuch as it itself presupposes a legal
or moral order within which rights and duties are allocated according to a
certain standard” (AR, 575). Establishing these orders is already respon-
sive to a specific address. It is the address or claim, however, that stands
“at the beginning” in this sense.
The claim made in this address by the Alien is something that con-
ceptually precedes the law. In contrast, law complies with an order, as do
traditional ethics or morals. Rather than responding to the address, it
gives form to what we ignore in it. The priority of something that is eth-
ically over-determined is disallowed by the very idea of legitimacy. Mores
and law are, as it were, always secondary. The soul of the normative, how-
ever, would only appear on the basis of the breach of the normative order.
The radical claim laid bare by phenomenology is called “extra-ordi-
nary,” and the model case of its contrary within the order is law.
Waldenfels calls the standard concept of the moral claim which refers to
orders of claims a mere “title” (Anrecht). There is a “contrast between
claim and title” (AR, 557), and thought in terms of responsivity has to
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reject the title because of its pretension of a rule to which it subjects the
alien. Phenomenology abrogates the rule. It proceeds from “an extra-
ordinary claim that has no place in any whole and is not subject to any
rule, from a claim that is not covered by any title” (AR, 575). This poses
the fundamental question: “Are there not within the juridification of the
circumstances of life certain aspects that are not subject to this juridifica-
tion?” (JS, 443). And because the Other’s claim is not subject to a moral
law or a juristic law from the very beginning, “the ethical in terms of the
claim [must be] strictly distinguished from certain rights and duties, from
juristic rights and duties” (JS 449). This view is a challenge to legal
thought. By virtue of this challenge, precisely that which the law as law
misses, that is, what it misses in its juristic character, is brought into view.
Thus, the following would be, I think, outside of the law, in a properly a-
juristic realm: The refugee who has burned his passport, thus abandoning
his legal existence, so that he cannot be deported to the country that
counted him in as a ‘citizen.’ The senior who hides the fact that he has
lost his memory and his capacity for action out of fear for his legal capac-
ity. The illiterate person who is rendered defenceless by this inability to
read. The witness who never reported to the authorities because someone
is blackmailing her family. And the classical example: the victim and the
perpetrator of an act that cannot be proved to have taken place at all. The
series of examples can be readily extended.
On the basis of the criticism of what is called “title,” Antwortregister
develops, on the one hand, a responsive ethics. This ethics would balance
as it were on the very threshold to order, it would not postulate, but rather
display its appeal in a sort of pointillism. Such an ethics seems difficult,
but not impossible. As an asymmetrical gesture, as a retention of the form
of address, as a hesitation, as a commitment to the situation, as a waiver
of appeal to judicial hierarchy – even as a renunciation of language itself.
On the other hand, here again, the limit of responsive ethics is the thresh-
old to order. The mere ‘title’ threatens to replace the claim, and this is
indeed the ethically questionable normal case in reality. An ethics of the
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‘rule’ would thus disqualify itself to the extent that it establishes an order
just as does the law as the ‘hardest’ form of normative order.
It is only consistent that Antwortregister does not envisage a possible
responsive mode for the legal order as distinct from ethics. Only the
moral order is interpreted as a deficient ethics, as a denial of the “respon-
sive difference” (AR, 565ff.). If claims founder on morals, the argument
goes, then responsivity becomes “irresponsivity” (cf. AR, 565). But there
is no talk of a law that founders in an analogous manner and is thus “irre-
sponsive,” though potentially “responsive.” As distinct from morals, law
seems to be limited to the form of an irresponsive order. Thus, even
though Antwortregister sometimes unites the two as a “moral-legal prescrip-
tive and proscriptive order,” it draws a distinction between morals and
law as regards potential responsivity.
At the very least, when it comes to conflict, questions of ethical valid-
ity tend to be transmuted automatically into questions of law. By means
of this reflection, Antwortregister brings not only the universal legitimation
figure ‘title’ into view, but also the legal system in the narrower sense. The
argument used in dispute does not only implicitly suggest ‘titles,’ it explic-
itly brings assertions of legitimacy into play: “The claim that is raised
assumes the form of a legal claim” (AR, 558). According to Waldenfels, it
may well be that such an assertion of extralegal claims does in fact “refer”
in some manner to pre-legal claims (AR, 561). Nonetheless, the form of
the assertion is momentous. Within the law, there is no avoiding the form
of the claim asserting a right inasmuch as the juridic only provides for the
positing of title. But precisely this transforms the claim in such a manner
that its ethical register falls silent. Thus, it seems that in Antwortregister, law
is in much the same position as Lyotard’s distinction between différend and
litige: the principle of the juridic as such is doomed to fail. The différend, the
conflict which reality has with itself and in which “something demands
‘positing’” (Lyotard, 33) is destroyed by the form of the litige, the legal
action. Accordingly, Waldenfels characterises the law with Nietzsche as
“equalising the unequal” (Nietzsche, Werk, 1, 880; 6, 150) or with Levinas
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as “comparing the incomparable” (Levinas, 345). In other words: if we

follow Antwortregister, every extra-ordinary claim must founder on the
rigidity of the legal form. There is no room within the law for the ethical
claim in the proper sense.
The fact that this is the case results from the logic of order.
Antwortregister brings the idea that the law is an order just as staunchly to
bear as it does the logic of the claim which is supposed to be conceived
without reduction as an over-claim. And the juristic sphere is determined
by the logic of order. In this book, Waldenfels’s phenomenology of an
ethical force of the legal order is closer to Foucault’s and Benjamin’s con-
ception of order than it is to Levinas’s ethics of the claim. It is not the
overstrained subject, but rather the relentless institution that limits ethical
infinity.
In Antwortregister, there is indeed another strand that brings the law closer
to the mode of the ethical: the figure of ‘law.’ This third facet, in addition
to the ‘title’ and the lack of responsivity, recognisably brings address and
claim into play and is reminiscent of Levinas. The text characterises the
juridic as an appeal to a claim of law by virtue of which, within the law,
something transcends the profane order character of positive law: where
the law is a “voice,” “the law itself contains a surplus of legal force” (AR,
562). This may well impinge upon an operative aspect of normativity in
general – but it would characterise a radical surpassing of order, and thus
not really what is addressed in Antwortregister as order. The law as a ‘pure’
command – that would be more a primal scene pertaining to the Old
Testament or psychoanalysis than a description of operative realities of
the juridic, of the order phenomenon law. The idea of the ‘surplus’ in law
touches the law no differently that it does all normative phenomena – that
is, no more than in general.
To characterise the modern positive legal order, it is better not to focus
on the trauma of the law of the father. It is more apt to aim at the pro-
fane, everyday process of order called law – which is what Antwortregister
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also does. That is, at that strangely inalienable, comforting, perhaps even
weird3 ability of the modern legal system – that point at which it only
admits of ‘titles’ and ‘legal claims’ and nonetheless functions excellently.
It is precisely here that we find what primarily compromises the legal
order from the perspective of responsivity: it cannot respond at all. The
claim has always already become a ‘case,’ the genuine and ethical dimen-
sion of which escapes both the law and administration of justice.
According to Waldenfels, there is a “blind spot of the legal order” here
(IAO, 10) corresponding to Nietzsche’s “blind spot of morals” (AR, 584).
And the spot is immediately due to its character as order.
Though this model is indeed quite clear – the law is an order, and the
order does not respond – at some places Antwortregister surprisingly
resolves the problem of the transition from the claim to the title in favour
of the title.
Ultimately, it does not stop with the diagnosis that the legal order is
simply given as an order, that the law does not ethically overstrain itself,
that it destroys the claim and thus has, from an ethical perspective, a
destructive effect. Waldenfels does indeed write: “From the perspective
of responsivity, all forms of law and justice … are tainted by an indelible
stain of injustice” (AR, 585f.). Nonetheless, the argument continues, in
everyday life we should distinguish “fulfilable” and “unfulfilable desires”
(AR, 582ff.), by the same token “entreaties” (Aufforderungen) that “invite”
and “entreaties” that “lay claim to something” (AR, 570). Responsive
ethics cannot exist alone. “Heeding ‘unknown laws’ is no substitute for
legislation, and the Other’s claim does not make the allocation of titles or
the establishment of protective rights superfluous” (AR, 585). We read
that in spite of all the aporias involved in such claiming, it must be “admit-
ted that without an order within which rights and duties are allocated no
everyday, institutional reliability can be conceived” (AR, 581 f.). In other
words: from the perspective of responsivity the legal order does indeed
possess a certain legitimacy – is it an ethical, political or rational legitima-
cy? – which must yet be better understood. Does the legal order then
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indeed respond? Does it respond as a legal order? Or is it as an order itself

a kind of response?
2. DOES THE LEGAL ORDER DO JUSTICE TO THE ALIEN?
With the four volumes on the phenomenology of the Other (Phänomenologie

des Fremden), the book on fault-lines of experience (Bruchlinien der Erfahrung)
and the manuscript on the inside and outside of order (Innerhalb und
Außerhalb der Ordnung), Waldenfels extends the spectrum of his phenome-
nological reflections on law. Several other figures complement the idea of
the law as a rigid order of mere ‘title’ without explicitly qualifying it. They
take a perspective as it were within the legal order, and they corroborate the
impression just indicated: although the law is an order and destroys the
claim of the Other, there is a specific sense immanent to law, a sense from
the perspective of the response and the Other. I discern at least five options
that are suggested in various passages.
(1) Antwortregister already contains a theory of the third party in terms
of a concomitant claim, that is, a claim within the framework of a triadic
relation. This admits of application to the law. The purportedly ‘neutral’
claim of the law can also act for the Other, for the right of the absent
other, or, to put it in more apt terms, it can advocate the claim of the
Other as of right; or a transition “from you as an Other to you and me as
one among others” (BE, 257) can be made imperceptibly. A ‘Somebody’
in general assumes, as it were, the import of the ethical Thou. This figure
is reminiscent of Levinas’s theory of justice. It accepts a paradox:
Something that apparently does not admit of representation can still be
represented indirectly by a supervening third party (AR, 571; BE, 251ff.).
2) With a view to law, Antwortregister develops a distinction between
person and thing that makes it possible to distinguish two realms as it
were: an ethical sphere (related to persons) and a juridic sphere (related to
things) (AR, 573). In Antwortregister, this distinction permits a reasonable
delimitation of the ethical sphere, particularly in everyday life: not every
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thing addresses us in a genuinely ‘ethical’ manner. The difference could

also be used for a (partial) determination of the juridic.
(3) In Bruchlinien der Erfahrung and in Innerhalb und Außerhalb der
Ordnung, this is complemented by the concept of law as an ‘operative
order.’ This focuses on the aspect that the third-party order (the represen-
tation of the Other conceived with Levinas in accordance with the first
option above) can only take effect in the name of the other – and the author-
ity that mediates this force always “retains a touch of the foreign body”
with respect to both the Other and me (BE, 257). Thus, the legal order
assumes the specific function of a medium. Thus, the law does indeed
abstract. But the ‘new’ otherness of the universal claim which it brings
about in its characteristic manner gives it a kind of legitimacy characteris-
tic of the juridic which at least makes it unmistakable. Here, Waldenfels
seems to approach Habermas’s theory of law. In contrast to ethics, law is
not immediately compromised by the element of ‘trans-subjective’ claims
to validity and fulfilment. Rather, such validity and fulfilment claims are
constitutive for the order of law (IOW, 5).
(4) At the same time, justice is redefined as an “interruption of the
course of law,” as “something that belongs to the legal order by escaping it”
(IAO, 10). With one stroke, this characterisation sweeps Habermas into
the distance and is more reminiscent of Derrida’s characterisation of jus-
tice in the Force of Law: Justice is an “experience of the impossible” (33),
namely of the impossibility of complying with the requirement of justice;
but this experience can only emerge within the aporias of law.4 An inter-
ruption, but one that belongs to the law: such a definition of justice direct-
ly presupposes the legal order. In return, it may even suggest an indirect
definition of the legal order: accordingly, is the legal order not precisely
that order that is able to organise ‘interruptions’ such that the claim of the
Other becomes manifest in them?
A phenomenology of law from this new perspective could be inte-
grated into Waldenfels’s motive of address or ‘claim.’ But it does stand in
a certain tension to the approach of Antwortregister, namely the criticism of
all order as order as well as the opposition between claim and title.
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(5) Finally, as is pointed out in Innerhalb und Außerhalb der Ordnung, the
work of a ‘genealogy’ can annul the injustice of the legal order. “A geneal-
ogy of morals and of law preserves us from the compulsion to moralise
and legalise life and from the consequences of an anthropodicy which
tries to justify what is prior and transcendent to all justification” (IAO,
11). This would mean that there is an ethical-emancipatory hope in the
work of developing a genealogical history, in observing, in understanding.
If it should become possible to keep in mind the idea of the development
of order in thinking about order, this would make for a certain distance
and may even modify enforcement.
The passage quoted leaves the question open as to whether this plea for
a genealogy impinges only upon phenomenology or also the law. Is it pos-
sible for a legal order to take a genealogical attitude to what it ‘is’? Can it,
in its character as an order, absorb its own genesis? Waldenfels has sug-
gested that this possibility is given for the political sphere.5 However, he
has characterised the law as being dependent on living only in its own
“here and now” (cf. IAO, 16). A genealogical law would seem to be a con-
tradiction in itself. Read precisely, Waldenfels accordingly warns against a
“compulsion” to “legalisation.” Thus, the genealogist’s gaze falls upon
order from the outside. He does not observe the immanent striving for jus-
tice, but rather the limits of the order of law.
The law seems to be both just and unjust at the same time. It excludes and
includes the claim. In an attempt to unite these facets, it is my conjecture
that the joint in the deliberations is the question of the concept of ‘order’
itself.
At any rate, for Waldenfels there is a fundamental level at which order
and claim are indeed linked. “‘There is order’ inasmuch as the Other’s
claim is united with the claim of a third party,” he writes in Antwortregister
(573). Thus, in a certain way the theory of the concomitant claim – the
possible motive in Waldenfels’s phenomenology of law mentioned above
(1) – is congruent with his theory of orders in general. This need not be
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in contradiction to the corresponding statement in Topographie des Fremden:

“There is no consensus, no agreement, no settlement between claim and
response inasmuch as claim and response do not refer to a common third
element in their performance, but to each other” (TF, 76f.). For orders
always overarch conflict
This third element is never a common third – this idea touches on the
third point, although with a slight shift: away from the representative
adoption towards a universalising bringing to bear of the Other’s perspec-
tive. It would be possible to reduce the specific ordering work of law to
the neutral Otherness of validity claims standing above the parties, to the
rule that for its part is interpreted as a ‘claim.’ There is tradition to this
motive: if the rule embodies a claim of reason, then the order, even com-
pulsion can prove to be good in ethical-political terms. But does the law
embody the Other’s claim in this sense reliably enough? For a prudent
phenomenology of the Other, this aspect of validity claims that legitimise
the legal order can only be one among many.
By virtue of the second point, Waldenfels has complemented his gen-
eral reflections on the concomitant claim in Antwortregister with the small
but systematically important reflection on the claim of law that comes to
bear precisely inasmuch as a law in the narrower sense “makes itself heard
in the Other’s claim” (AR, 573). The complement seems to be meant in a
Kantian sense: Requests that make a claim to things become legal claims
against persons as soon as there is a sovereign symbolic order that initial-
ly expropriates everything – and in return only grants the formal equality of
personhood. Later, Waldenfels called something similar the “dialogical or
communicative structure of law” (IAO, 4). In law, one figures only as a
validity variable – the law recognises its subjects as ‘persons’ on its own
account. It is precisely this point that ensures reciprocity and equality. It
can be conjectured that with this cautious avowal of the legal distinction
between ‘person’ and ‘thing,’ Antwortregister also commits itself to the
Kantian formula that the law is the totality of the conditions under which
the free will of all can be reciprocally interrelated with respect to what is
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external to their actions.6 In this sense, the legal order would be ‘just’ pre-
cisely as law – and only it alone. The claim of the Alien would thus have
at best a moral import.
However, the practical distinction between person and thing is not
located on the level of pre- or extra-legal claims. Waldenfels mentions the
“bag” that is casually hung over one’s shoulder as an example of a “mate-
rial request” (Anforderung) that makes no claim (AR, 570). A prior legal
aspect is nonetheless implied. Even a bag is no longer a temptation or is
only a temptation to commit theft precisely when a legal system declares
bags to be mere ‘things’ and when it trivialises them as it were as nothing
more than somebody’s property (which includes the sanctions placed on
the violation of another person’s custody of the thing as being ‘theft’). In
the exterritoriality of the legal realm, even ‘material’ phenomena could
lose their clarity – just as, the other way round, outside of the realm of
property things such as a bag could regain their ethical ‘claims’ on us.
Even the presumption of a request that makes no claim, and that does not
obligate as such, must contain in a nutshell the order that generates this
lack of claim. Separating a ‘purely’ material sphere from the sphere of
obligation in which a Somebody “makes a claim to something” already
presupposes legal categories.
The fourth motive brings up a further aspect of ‘order.’ Can it be
that the legal order can and must be conceived purely from within? Like
Derrida, Waldenfels does indeed speak in the negative when in his
newest texts it comes to the question of justice. As distinct from the crit-
icism of ‘order’ in Antwortregister, they no longer fundamentally deny the
law’s relationship to justice. Moreover, the idea of a transcendental jus-
tice seems to be directly linked to the matter and the order of law. This
sounds like a recognition of the irreducibility of law. This is perplexing
from the point of view of the Alien. But it would make statements like
the ones quoted above explicable – that legislation, the allocation of
titles, and also the establishment of protective rights are “not superflu-
ous” (AR, 585).
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Waldenfels has given a broad outline for the legal order in his phenome-
nology with the concept of operative law (3), to which the aspects of the
idea of justice (4) and of genealogical foundation (5) probably pertain. For
the one part, he extends the line drawn in Antwortregister specifically with
respect to the “strategic reciprocity” (AR, 605) of exchange on a contrac-
tual basis. The law feeds (3) from the ideal of a pure binding force of a
universal that is supposed to be represented in the law: do ut des is
exchanged for the authority of an abstract validity or at least the claim to
validity. “Everyone can assert the same legal claim” – “However, this
means that the difference between myself and the Other is denied,” as
Antwortregister again clearly asserts with regard to the context of private
contractual law (AR, 604). Furthermore, the “ambiguous force of the law”
– the classical objection to a pure normativism in law – would suddenly
become “powerlessness if nothing pertained to it beyond mere validity”
(AR, 604).
In spite of the fact that its essence is to be an order and in spite of the
universalising dimension of “claims to validity and fulfilment” without
which law as law cannot do, there is also supposed to be such a thing as jus-
tice (4) which can be defined as an “interruption of the course of law,” as
“something that belongs to the legal order by escaping it” (IAO, 10). The
Other’s claim – prior to the binary pairs just and unjust, is and ought, in its
incomparable singularity – introduces a “rift” (Zwiespältigkeit) into the level
of law. At this point, the spatial metaphor of the inside and outside of order
encounters its limits. In all stringency, the strong basic idea of a phenome-
nology of the Alien should apply to the theory of law: “What is outside is
not inside: that is the only way for the alien to address us” (SF, 40).
There remains the general motive of a rift within the ‘law,’ something that
already plays an important role in Antwortregister, but which touches the
ethical realm just as it does the legal. There are good reasons to doubt
whether a phenomenology in Waldenfels’s sense would primarily describe
the legal order as an order of ‘laws.’ Phenomenology has too acute a sense
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for institutions, for the practical, for the technical and for the implicit
aspects of the genesis of normativity. Waldenfels’s texts do not offer a
special characterisation of juridical law in the narrower sense, nor do they
explicitly distinguish it from other laws, commandments, and normative
gestures – something that points in the same direction. That is logical –
especially when the law is not conceived on the basis of laws.
In Innerhalb und Außerhalb der Ordnung, the ambivalence of claim and
order is applied to the sphere of the administration of justice in the archaic
figure of the ‘voice’ of the law. The administration of justice, too, seems
to be just and unjust. It is not only confronted with a hermeneutic task
that is de jure insolvable, but it must also be regarded as a ‘performative
process.’ “Operative law is divided in itself and doubled,” writes
Waldenfels in analogy to the “doubling of the act of saying on the one
hand and what is said on the other” (IAO, 15).
This brings one aspect of law, of ‘operative’ law in the proximity of the
body. The law as an operative element no longer appears primarily as an
order in the sense of a positive institution, but rather extends to the opera-
tive extraordinary factor in the world in general: the power of the voice.
This brings a sort of natural law into play that may well impinge on
the normativity of order in general. The law would be an order in the
same quasi-ontological sense as the perceptual world always presents itself
as ordered, or as language is always an order. In Bruchlinien der Erfahrung,
he writes: “The inevitable fundamental fact that ‘there is order’ involves
the fact that ‘there are laws’ that exist neither purely ideally not purely real-
ly.” “It is no accident that equality is held to be an essential property of
law and justice, independently of the standard they are measured by” (BE,
253). There is, as it were, already something legal in the ‘there is’ of order.
In a comprehensive sense, the “ordinal force” of which Waldenfels
speaks is irreducible on this level; he unconditionally distinguishes it from
legitimate, illegitimate and hypostasising force (cf. BE, 264).
This transcendental juridic character, as it were the normativity of
order in general (and in this sense of ‘law’ and ‘rule’) certainly cannot
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describe the specific character of the legal order. Indeed, ‘operative law’
only characterises the phenomenon of law as law or the legal order as dis-
tinct from other (normative) orders inasmuch as it is not a logic of order,
but rather a phenomenology of order that characterises its juridic aspect.
At any rate, in Waldenfels’s most recent deliberations on law, Innerhalb und

Außerhalb der Ordnung, there are statements that are not made in
Antwortregister. First, as does every order, the law involves the danger of
hypostasising; but as an operative order, in the moment of the operative
law, this order seems to be more open to the issue of the ethical claim
than previously. Second, where the legal order and ‘juridic character’ of
order in general fuse, it seems that the two are equally irreducible. The
question is whether law as an order has an exterior at all.
Moreover, there is a statement impinging on legal theory in the nar-
rower sense. The judiciary, that is, the administration of justice, seems, as it
were, to be the central ‘responsive’ organ of the legal system. The court
room and the rift within the judge in which the performative false bottom
of law becomes apparent would be the exemplary scene of an ‘interrup-
tion’ of law.
3. HOW ALIEN IS THE CLAIM TO WHICH THE LEGAL ORDER IS A RESPONSE?
3.1. Limits
Does the law – in its character as order – destroy the Other’s claim? And
does perhaps the normativity of law embody the totality of the rigid nor-
mativity of ‘law’ and of ‘order’ in general? Or is the law – in its character
as order – responsively permeable and in this sense ‘just’ from the ethical
point of view?
I would like to retain these questions, but suggest a shift in outlook.
Let us complement the aspects of order, appeal, and response with the
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question of the specific limits of law. For it is in dealing with the question
of the limits of an order that it is decided whether in terms of the topo-
logical image of ‘order’ this legal order is to be conceived solely from
within, say as the transcendental order of the law, or also on the basis of
its limits. It is decided whether there is, in a phenomenology of law,
‘something’ necessarily operating in terms of natural law – for example,
the idea that the legal as the manifest form of the normative, so to speak
as its historical-political body (in analogy to Kant) is not merely one pos-
itive order among orders. But that it is ultimately irreducible, irreducible
even with respect to the Other.
Is positive law a limited order among orders, or are we in the midst
of the legal order because the principle of the normative order speaks
through it? I think that it is with precisely this question that we have to
return to the two fundamental problems stated at the beginning, the prob-
lems with which any phenomenology of law will be confronted. For they
confront us here. For the one part, the problem of experience: how can
the specific status of law be determined? As an order, is it empirical or
transcendental? Is it experienceable as a phenomenon in its limits, or can
it only be thought as a principle? For the other part, the problem of is and
ought: for phenomenology, is law located on the side of ought? Does it,
as it were, institutionalise – in its character of being an order – morals
more or less well, morals that it must stand with by force of natural law?
Or can we discover the legal order (as well as what makes the law law)
somewhere between ought and is, or even apart from them, without a
direct link to morals? Could it be that its proper and specific phenomenal
status must yet be determined?
A simple test will refer the question of the limits of law back to the prob-
lem of the response to the Other: in the face of a claim, why should legal
categories be mobilised, why should they not not be mobilised? Does not
the issue of the claim, taken radically, demand that the exterior of the
(positive) legal order be thought?
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Quite specific questions are meant here: the passport, the mere pos-
session of which is a danger, the disease that threatens somebody’s legal
capacity, the lack of access to language, complete susceptibility to black-
mail, the deed that leaves no trace behind, etc. The point here is the exis-
tence of thresholds of juridification and dejuridification of a situation –
and the phenomenological exposition of this threshold. In what situations
is ‘law’ required at all, and at what point could an evasive, dissident,
diverse, non-legal manner of dealing with a social reality be possible and
reasonable, taking the force from a legal order?
This can be an ethical question: in addition to the obvious and fun-
damental possibility that is always given, namely declaring in the name of
the Other the law to be competent, is there not also a claim that stands
against the legalisation of situations? It can also be an epistemological
question: where does the phenomenologist who affirms the order see lim-
its at all? Is there not an open horizon of thought that amounts to a rejec-
tion of ‘ordinal’ force – the force of a legal order, though perhaps not the
force of ethics? Or it can be a question for the philosophy of law: cannot
modern positive law be in fact regarded from outside as a closed order, as
a normativity of its own kind – as something that has come to be, some-
thing that (from a historical point of view) can be done without or lost,
something that at any rate is limited in its essence?
If the phenomenology of law conceives the legal order in its limits, then
not only ethical questions will remain as free as possible of the legal exam-
ple – this is the impetus of Antwortregister. Politics, too, need not be per se
a politics of ‘entitlement’ or of the ‘third party’ or of the ‘law.’ When, from
what time, and in particular, from what standpoint it can be said to be ‘just’
to pay the ethical-political price to be paid for introducing the third party
by approving the action of the ordering force of law: this question could
be kept productively open. The phenomenology of law would not have to
commit in one breath its own perspective to the immanence of a self-
authorising order of law within which it at the same time wants to be a
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9282-06_Eth_Persp_05 25-10-2006 09:53 Pagina 489
phenomenology of the Other and of the claim which takes effect “on a
pre-normative level” (GN, 82).
3.2. The legal order as a real order
It is precisely the radical thinkers of the limits of order who have never
made peace with the legal order. And there are reasons for this. Nietzsche,
Benjamin, Foucault and in a certain sense Levinas have, each in his own
way, preferred the irregular normative, the singular stroke of normative
force to the fundamental affirmation of law as the order or orders. In say-
ing no to law, they have defended their way of thinking the extreme.
For, anyone who speaks of a legal order must mean a reality in which
only juridic concepts of justice count and can count. Legal justice is
defined in terms of the formal universality of these concepts. The fact that
they are ethically or politically insufficient is not even a blind spot in the
eyes of the law. For it is precisely in terms of this blind spot that it recog-
nises and defines itself, either in philosophical terms (from Kant to
Habermas), or in a legal-pragmatic manner. The point at which actions
merely concur ‘externally’ is, as it were, brightly lit. It is the point of the
validity claims which, under specific constraints, are specifically authorised
to prevail – authorised, say, by “procedural justice” (Habermas, 1992).
The modern legal order does not come on the scene at the last resort,
as the exceptional appearance of ‘the’ law; rather, its workings remain
largely implicit (by way of procedural rules that the expert handles). It
functions more as a technical-practical context of reference that process-
es and elaborates what approaches it in the manner that it requires (name-
ly the ‘regular’ manner) and adopts its linguistic and practical options in
the prescribed manner.
One need not necessarily speak of a “system” in Luhmann’s sense. It
is also not necessary for there to be a simple principle of a ‘leading differ-
ence’ distinguishing the law as a compact, effective order from the non-
legal, or from what is legalised in a merely metaphorical sense (for exam-
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ple the moral reference to ‘titles’ or ‘rights’). The law is not only a dis-
course treating the difference ‘just/unjust,’ it is also an institution. With
Foucault, I would accordingly designate it as a “deployment” (Dispositiv).7
But does the ‘operative’ or ‘real’ legal order in this sense have anything to
do with the ethical claim and the Other? Is it indeed the claim of the alien
that can at least be ‘saved’ in the universality of the form to which the
legal order reacts as a whole and through the quality of its being? Is the
thinking of the legal restricted to the Kantian type of ‘order,’ to law as a
transcendental necessity of order?
An author such as Habermas would doubtlessly affirm this. He would
refer to the aspect of rationality in procedure as well as the procedural jus-
tice institutionalised by the indirect, proceduralist forms of the modern
legal system. From the point of view of Habermas’s discourse theory, in
the constitutional state it is the legal form that has advanced to become
the central ethical-political medium guaranteeing the “inclusion” of the
Other (Habermas, 1996).
A second author who universalises the legal order under the sign of
ethics in the Kantian sense is Jacques Derrida. In the decision paradox of
the administration of justice, he sees the model for the free ethical orien-
tation of the decision on an ‘idea of justice’ – leaving the question open
as to whether the latter should be articulated in terms of individual
morals, values, or fundamental ethics. In Derrida’s view, the law serves in
this feature as a kind of model case for the ethos of deconstruction. The
law does indeed fall short of the idea of justice, but in this point it is trans-
parent, ‘deconstructable.’ Derrida adopts the perspective of the judge’s
decision and imputes to him a maximum of ethical inspiration – this
would seem to be the parallel to deconstruction as a decision within the
realm of scientific truths.8 With Derrida, one must bank on “events” in an
intermediate space between the idea of justice and the legal executive.
Derrida has not precisely specified these aspects,9 but it seems that the
action of the individual representing the order is what is meant: the ‘good’
expert so to speak, the expert who knows of the limits of his possibilities.
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9282-06_Eth_Persp_05 25-10-2006 09:53 Pagina 491
In a certain way, Derrida’s idealism of the legal idea of justice seems

to be even more naive than Habermas’s idea of procedural justice
removed from the morals of the acting subject. Where Derrida can only
more or less appeal to the judge’s individual morals, Habermas accentu-
ates institutional and, by means of the postulate of a ‘deliberatively’ inte-
grated public, political mechanisms.
With Waldenfels, however, both solutions can and must be rejected
in terms of the alien Other. The legal order is an order, and it may be
interpreted as open to claims – say in the form of the positive-law insti-
tution of the European type. It is susceptible to structural irritation
(Luhmann). In its ‘operative’ character (Waldenfels), it can be more or –
perhaps better – it can be less than it is, as we can say with Waldenfels.
Thus, it may refer beyond itself in some points. But simply because this is
not excluded, is the law already ethically legitimated as law? Is the legal
order as an order a ‘response’ to the Alien because, though it excludes
claims, it indirectly reacts to the ethical contents of claims? Is ethics, as it
were, the latent intention of the law? Is it the ground, the claim to which
the legal order is a response?
I think not, and I again call to mind that it is not the same claims which
are lost to ethics and which then circulate in the law – albeit indirectly or
with a ‘false bottom,’ involving claims prior to law which can be proce-
duralised only in law. It is not the claims of an Other that suddenly sur-
face in the law – say when a judge has difficulties with his decision.
Rather, it is claims that are quite familiar to the law that ‘interrupt’ the
course of law: there are no dilemmas that the law does not already know.
That is to say, even interruptions will be dealt with in legal categories, and
if the order is disturbed by being reminded of the ‘blind spot’ of its work
in the course of performing its business, then it will not feel the Other,
but itself.
Accordingly, I do not think that it is the claim of the Other to which
the legal order’s desire for justice is due. Rather, I think that the claim to
which the law itself is a response – the modern positive legal order in its
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real functioning and operating – is its very own claim. It may be that there
are sometimes ‘just’ constellations within the law despite the law – but
then it is not the legal form that made them possible. The legal form itself
is not committed to the Alien, but rather to a specific reason by virtue of
which it is obliged to confront the Alien with a normativity that, though
mitigated, is nonetheless total.
When Waldenfels opts for the a-juridic and sees an “overclaim” (Über-
anspruch) at work within law, a claim within the legal order that “surpasses
legal and moral claims” (IAO, 12), this should be complemented with
regard to the limits of law. There may also be a profane a-juridic, an a-
juridic at the outer limit of juridic immanence. For example the request
not to mobilise the law, but rather to stay on this side of the law, as it
were, and rely on the normative force of other orders: art, friendship,
faith, political action – or, as Benjamin describes that which is external to
law: “kindness of heart, love of peace, inclination, trust” (191). Justice, a
just ‘response’ to the alien can also be found where one takes another path
than the law. That is, where one does not go through the legal order, but
remains aloof from it.
From the perspective of a ‘responsive’ ethics, it may speak well of
modern legal orders that as ‘operative orders’ they are not subject to rigid
rules, but rather modifiable rules or rules that at least are variably usable.
Thus, the law provides rules that open a certain latitude.10 At the same
time, it is not decided whether these latitudes have something other than
the radical Other in view. It may be that the latitudes organised by the law
itself are latitudes in which the law in its character as order has learned to
implement its ordering claims in the best possible legal manner. It is pri-
marily the divergent and well defined requirements of legal practice itself
that modern law intertwines in this manner. These, too, are claims – not,
however, the Other’s claims, but rather claims made by other orders (dis-
courses and institutions). It is primarily other orders that make use of the
specific guarantees of the legal order.
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9282-06_Eth_Persp_05 25-10-2006 09:53 Pagina 493
Thus, in a thoroughly legalised society such as ours, majorities can

indeed ultimately feel quite comfortably at home within the law. Many who
understand how to make use of the low-threshold guarantees of the legal
order also know that the ‘ethical’ price of participation in justice could be
worthwhile – for them personally. They, too, knowingly accept the equal-
isation of the unequal.
The Alien is knowingly excluded, on the basis of a rational calculation
– and it is precisely this point that, as far as I am concerned, distinguish-
es the law from other orders. The legal form excludes. It does this like
every order. But as distinct from other orders, it does not simply organ-
ise this exclusion tacitly. Rather, in the juridic context, the precarious
maxim that the claim must not, must never be really responded to is
explicitly raised to the status of the specific achievement of the system. It
may be that the law is thus in certain manner doubly irresponsive, to apply
Waldenfels’s order concept here. Equalising the unequal and comparing
the incomparable is at any rate not only a necessity for the positive legal
order, but rather its normative principle. It is the basis for irreversible
decisions, and these decisions are executed as equal treatment of the
unequal and as unequal treatment of the equal.
“As many Othernesses as orders,” writes Waldenfels in the Topographie des

Fremden (35). As far as the law is concerned – inasmuch as its point is not
the authority of the law, but in more modern terms, the general context of
a positive legality that is justified as a juridic context, and the entirety of all
institutions and procedures acting in a legalistic manner – this descriptive
perspective cannot really exist. Modern positive law is an immanent order.
It is aware of itself as an order of orders. It operates pragmatically. And the
Other is not alien to it – albeit only the juristically transformed ‘Other,’ not
a radical other; it is at least sufficiently familiar with it to have its own
‘responses’ ready for it. Precisely to be armed with its own language, mod-
ern law keeps itself flexible by means of the idea of justice. This is what I
mean when I say that the law does indeed admit claims, but that it does
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not necessarily respond to the claim of something radically Other. Too

rigid a law proves to be inflexible and also disturbs the needs of those who
profit from the law or who are at home in legal guarantees. To this meas-
ure, the judgement of a ‘good’ judge will speak the language of a victor.
Not the language of a transcendental necessity, but rather the language of
a majority that relies on the security ensured by a legal order.
It is not the authority of the ‘law’ that constitutes the force of legal valid-
ity phenomena today, but it is also not a normative irreducibility of law.
Rather, it is the order of law in its limits and in its context, the technical
intertwining with a well-tuned ordered structure and routine that is ‘juri-
oid’ down to the everyday conditions of its ‘experienceablity.’ The law
extends to the horizon – where the question is no longer raised as to
whether it could not also not be, and where the question falls prey to the
pragmatism to which it may well be an answer. It is precisely the pragmat-
ic-pluralistic foundations of law that do not take into consideration what
matters most for Waldenfels: namely a form of Otherness that is defini-
tively alien to law.
In my view, this is good cause for a phenomenology of the limits of
the legal order. This order is more than and different from its own nor-
mative sense.
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einer Phänomenologie des Fremden: Ms. 2002 [abbreviation: IAO].
— 495 —
9282-06_Eth_Persp_05 25-10-2006 09:53 Pagina 496
NOTES
1. The German word Evidenz has a different, a wider meaning than can be translated by the
English word ‘evidence.’ Evidenz means the stroke of certitude in immediate clarity that something
is thus and not otherwise – or that something is given as something. It is not the corroboration of
knowledge that is meant, but rather the acquisition of knowledge, an epistemological process.
Thus, the German word retains the old sense of the Latin word evidentia – as does phenomenolog-
ical usage. To keep this distinction in mind, the German word Evidenz will here be translated as
‘Evidence’ (with a capital E).
2. Waldenfels does not restrict the idea of the overclaim to the question as to whether an
order admits of ‘more’ or ‘fewer’ claims. As in Levinas, the infinite claim is not a shortcoming sus-
ceptible of real reduction. On the contrary, it is the orders that are open to claims that demon-
strate how ‘unsettlable’ the claims dimension is in practice. “Forms of order such as open linkage
and open encounter are characterized by the fact that the claim is an excessive claim and the chal-
lenge an excessive challenge, since every response falls short of the claim that is raised” (OZ, 176;
Engl. trans, 112).
3. ‘Weird’ (gespenstisch, literally: ghostly): just as Benjamin characterises the police as a weird
force inasmuch as it is shapeless, representing a mixture of both law-making and law-enforcing
force (cf. Benjamin, 189). I think that in modern legal systems precisely this mixture has long
become a feature of the juridic itself.
4. “A will for justice, a desire for justice, a claim for justice, a demand for justice whose
structure does not consist in the experience of this aporia would have no chance of being what
they want to be: a just and appropriate call for justice” (Derrida, Einige Statements, 33).
5. “An order could only absorb its own genesis if the diachronism of the order process
could be suspended in the synchronism of an ‘absolute present’. The self-foundation of order is
one of the temptations of political ordering efforts …” (Waldenfels, VM, 64).
6. Kant, however, states the point more forcibly. The free will of the one should be “united”
with that of the other “in accordance with a universal law of freedom” (337, 339 [AB 33; AB 36]).
7. Cf. on law as “deployment” and on its juridic “evidence” Gehring (1999).
8. Cf. Jacques Derrida, Force de loi. Le “fondement mystique de l’autorité”. It seems to me that the
deconstructive approach is not really appropriate for the analysis of the law itself (cf. Gehring 1997,
226-255).
9. On the contrary, he states that the principle ‘that something happens’ is ultimately the
only prescription that can be linked to the event. “Something would finally get the chance to hap-
pen or take place, that is all. It is not yet settled, it is not predictable – it is simply better that some-
thing happens. That is everything.” This “dizzying choice” is “prior to all ethics, all politics, all aes-
thetics, all historical and social reality.” (Derrida, Einige Statements, 37). Naturally, this can mean
everything, from the ‘literal’ interpretation of a legal norm to an overextension of that very norm,
from a storm on a prison or a courtroom to the defence of a court action against an unforeseen
disturbance. Both the establishment of order and the questioning of – precisely – order can be an
‘event’ ‘between’ this order and an idea transcending it.
10. I hold it to be questionable whether indeed “the order is at stake in the court action” (IAO,
16). The order of procedure per se is never at stake in the proceedings – otherwise the police will come.
— 496 —

Petra Gehring (Can The Legal Order Respond)

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9282-06_Eth_Persp_05 25-10-2006 09:53 Pagina 469

Can the Legal Order ‘Respond’?

KEYWORDS. Bernhard Waldenfels, legal order, response, alien, phenomenol-

“The claim of law is not addressed to anyone since it asserts itself

“Heeding ‘unknown laws’ is no substitute for legislation….”

ETHICAL PERSPECTIVES – SEPTEMBER 2006

L et me briefly sketch the framework of my argument with two gener-

a) Phenomenology and Law

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

b) Order and Response: Waldenfels’s Phenomenology of Law

By virtue of two major shifts, Bernhard Waldenfels has fundamentally

ETHICAL PERSPECTIVES – SEPTEMBER 2006

track of the implicitly responsive character of sense patterns. It is ethical-

Thus, I would like to reconstruct the perspectives of phenomenological

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

the radical perspective critical of order dominate – a theme also proper to

1. ‘CLAIM’ AND ‘TITLE’: CAN THE LEGAL ORDER ‘RESPOND’?

The topic of law only occurs in Waldenfels’s wide-ranging book

ETHICAL PERSPECTIVES – SEPTEMBER 2006

Against the background of the leitmotiv of the claim, Antwortregister

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

ETHICAL PERSPECTIVES – SEPTEMBER 2006

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

as “comparing the incomparable” (Levinas, 345). In other words: if we

ETHICAL PERSPECTIVES – SEPTEMBER 2006

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

indeed respond? Does it respond as a legal order? Or is it as an order itself

2. DOES THE LEGAL ORDER DO JUSTICE TO THE ALIEN?

With the four volumes on the phenomenology of the Other (Phänomenologie

ETHICAL PERSPECTIVES – SEPTEMBER 2006

thing addresses us in a genuinely ‘ethical’ manner. The difference could

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

ETHICAL PERSPECTIVES – SEPTEMBER 2006

in contradiction to the corresponding statement in Topographie des Fremden:

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

ETHICAL PERSPECTIVES – SEPTEMBER 2006

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

ETHICAL PERSPECTIVES – SEPTEMBER 2006

At any rate, in Waldenfels’s most recent deliberations on law, Innerhalb und

3. HOW ALIEN IS THE CLAIM TO WHICH THE LEGAL ORDER IS A RESPONSE?

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

ETHICAL PERSPECTIVES – SEPTEMBER 2006

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

3.2. The legal order as a real order

ETHICAL PERSPECTIVES – SEPTEMBER 2006

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

In a certain way, Derrida’s idealism of the legal idea of justice seems

ETHICAL PERSPECTIVES – SEPTEMBER 2006

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

Thus, in a thoroughly legalised society such as ours, majorities can

“As many Othernesses as orders,” writes Waldenfels in the Topographie des

ETHICAL PERSPECTIVES – SEPTEMBER 2006

not necessarily respond to the claim of something radically Other. Too

GEHRING – CAN THE LEGAL ORDER ‘ RESPOND ’?

ETHICAL PERSPECTIVES – SEPTEMBER 2006

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