Fictions of Justice 
Jelica Sumic-Riha 
My ambition is to examine implications of the deconstructive approach in rethinking politics in general and relationship between Law and Justice 
in particular. One can ask: does deconstruction have any political implications 
despite the widespread assumption that Derrida has so consistently, skilfully 
and, perhaps, deliberately avoided the topics of politics? What sort of political 
thought remains possible once one has deconstructed all the traditional bases 
of political reflection? Is it possible to rethink the political from a Derridian 
standpoint? Is it possible to articulate a deconstructive politics? One could say, 
of course, that there is already a politics implicit in his work. According to 
Derrida, there is something political in the very project of attempting to fix the 
content of utterances. Thus one could »extract« the following a guideline 
»extracted« from Limited Inc. 
»This is inevitable; one cannot do anything, least of all speak without deter-
mining (in a manner that is not only theoretical but practical and performative) 
a context. Such experience is always political because it implies, insofar as it 
involves determination, a certain type of non-«natural« relationship to others 
... non-natural relations of power that by essence are mobile andfounded upon 
complex conventional structures«.1 
Once this general and a priori structure has been recognised, he adds, 
»the question can be raised, not whether a politics is implied (it always is), but 
which politics is implied in ... a /given/practice of contextualization. This you 
can then go on to analyse, but you cannot suspect it, much less denounce it, 
expect on the basis of another contextual determination every bit as political. 
In short, I do not believe that any neutrality is possible here«.1 
It is along those lines that I wish to address the following question: why should 
it be necessary to rethink, to re-thematise the relationship between justice and 
law, and what have this questioning to do with democracy? My first, provi-
1 J. Derrida, Limited Inc., Evanstone: Northwestern University Press, 1989, p. 136. 
2 Ibid., p. 147. 
Fil. vest. /Acta Phil., XV (2/1994), 67-126. 
68 Jelica Sumic-Riha 
sional answer to this question is to say that the awareness of the gap, or the 
conflict, antagonism even between law and justice is constitutive of democ-
racy. 
I will start my questioning by quoting Lefort's thesis according to which 
democracy is characterised by the »dissolution of the markers of certainty«. 
For Lefort, as you may know, a democratic society is »a society in which 
power, law and knowledge are exposed to a radical indétermination, a society 
that has become a theatre of an uncontrollable adventure, so that what is 
instituted never becomes established, the known remains undetermined by the 
unknown, the present proves to be undefinable.«3 Following this line of 
argument, we need to examine various implications that the thesis of the 
impossibility of any ultimate foundation or final legitimation may have for one 
of the key constituents of democratic society, »the rule of law«. 
Because this issue concerning the groundlessness of »the rule of law« is all the 
more acute today. With the collapse of real socialism, it seems that the model 
of liberal democracy has been imposed as the only possible articulation of the 
contemporary political and social. As the »new world order«, it is claimed to 
be the final victory of the democratic invention. Yet this globalisation of 
liberal democracy is accompanied by something that could be called the 
negation of democracy, its dark side. In this Europe of human rights, a war 
rages; nationalism, racism and antidemocratic populism are spreading. How 
are we to conceptualise these negative and pathological phenomena with 
respect to the victory of »democratic culture«? Is this a historic regression, 
caused by circumstances, and thus something marginal in relation to the 
universal model of democracy, an exception to the rule? Or is it a return of the 
foreclosed which subverts the universal democratic culture as such? In the 
light of this questioning, democracy appears to be a precarious, »weak« order 
demanding to address the following question: what is, in fact, so problematic 
about democracy that its very foundations can continuously be questioned? 
According to Lefort, as pointed out earlier, democracy is characterised by a 
radical lack which Lefort conceptualise as the empty place of power. The 
structural necessity of the empty place of power is grounded in the paradoxical 
nature of the legitimating instance of the power. In democracy, the role of the 
sovereign is played by the People. 
The People in the role of the sovereign is a problematic, divided entity. On the 
one hand the People is a symbolic entity which legitimises the power. On the 
other hand, the people is also conceived as a collection of those who are 
subjected to the power. As a non-totalisable collection of atomised individuals 
1 Cf. Cl. Lefort, The Political Forms of Modern Society, Oxford, 1986, p. 305. 
Fictions of Justice 69 
it, no doubt, exists. As a symbolic authority, it clearly does not exist, or, rather, 
it exists only as a »fiction«. The place of power remains by necessity - that is, 
as a consequence of this division - empty. It is a place that no-one, no 
representative of the people can claim as his own, nor can legitimately occupy. 
Any attempt to incarnate this absent, impossible entity, the symbolic people, 
leads therefore into totalitarianism.This irreducible gap between the People as 
a Symbolic entity and the people as a non-totalizable, non-substantial entity is 
constitutive of democracy. It is because of this insurmountable division that 
democracy must be conceived as an ethico-political dilemma. It is because of 
its radical openness that democracy is always facing a threat of a fall into its 
opposite: a non-democracy, and totalitarianism. Once it is admitted that de-
mocracy is an »eternally« open question - due to the this paradox of the self-
legislator who is at the same time his own subject - we need to rethematise the 
precarious status of the Law and its relationship to its own specific, constitu-
tive, I would add, outside. 
What is at stake here is precisely the question of what is this Other of Law, this 
non-Law, if Law in democracy is posited as all encompassing universal, as an 
instance which nothing escapes. And vice versa: what is this Nothing which, 
as we shall see shortly, constitutively escapes the Law? What is this Nothing 
which, by evading the Law, renders the Law incomplete? In an attempt to 
examine the precarious nature of democracy in its relation to Law, I will 
address the proper object of my inquiry, namely the dilemma of the incom-
pleteness of the Law. My objective is to show how the modernist project on 
the one hand and the postmodernist on the other - two major endeavours of our 
time - situate themselves with respect to the dilemma of Law and to suggest a 
possible solution to the problem. In the first part of my presentation I will 
focus on the modernist conception of justice as elaborated in Rawls's A Theory 
of Justice and indicate those points at which this conception turns into its 
opposite. In the second part, I will present the postmodernist critique of 
modernist approach. I will then elaborate on some problematic implication of 
the postmodernist conception of justice as exemplified by Lyotard's The 
Differend. In the third part I will focus on the antagonistic relationship be-
tween modernist and postmodernist approach as actualisation, or realisation of 
the antagonism between law and justice, and suggest a possible rethematisation 
of this relationship. 
1. 
The modernist and postmodernist conception of the opposition between law 
and justice can be thematised, as I pointed out earlier, in terms of a radical 
rupture or a differend, to use Lyotard's own term. This differend between the 
70 Jelica Sumic-Riha 
two theoretical approaches, I argue, needs to be reappraised in the light of an 
internal blockage, impossibility, or aporia of the Law itself. The thesis that I 
wish to defend here is precisely that this theoretical differend »stages« the 
differend that always already exists between law and justice. The theoretical 
differend, I argue, enunciates the truth of the relationship between law and 
justice, that is, the impossibility of bringing together two heterogeneous log-
ics: on the one hand the symbolic, universalistic logic which characterises the 
Law, and on the other hand the logic of the real, as always singular (particu-
lar), contingent logic which is, in my view, constitutive of Justice. 
My basic point is that despite the fact that this impasse characterises the 
rapport or rather non-rapport between law and justice, there is nevertheless a 
way out of it. And this possible way out of the impasse concerns, in my view, 
not only democracy »to come« (a venir), as Derrida puts it, but also the 
possibility of (radical) changes in present-day more or less democratic societ-
ies. 
In order to suggest a possible solution to this problem, I will draw on Derrida's 
recasting of the relationship between the law and justice. In »Force of Law: 
The 'Mystical Foundation of Authority'«, the lecture that Derrida delivered as 
the keynote speaker in the conference consacrated to Deconstruction and the 
possibility of justice at the Cardoza School of Law in 1989, the issue that I 
wish to address here, namely the antagonistic relationship between law and 
justice is articulated as »the absence of rules, of norms, and definitive criteria 
that would allow one to distinguish unequivocally between droit (law) and 
justice.« 4 
I believe that both, Rawls and Lyotard, would accept this formulation of the 
problem. It could constitute their provisional meeting point. They would agree 
also that the central question of the contemporary theorising about ethics, 
politics and law is the question of how to produce a discourse on justice, law 
and politics when one no longer relies on pre-existing rules, in other words, 
when the norms for deciding the norms, rules and laws become themselves a 
problem. What characterises contemporary democratic societies and theorising 
about them is precisely a rupture with the idea of totalizing unity and the idea 
of subject as self-legislator on the one hand and awareness of the immanence 
of norms, rules and criteria on the other. Rawls and Lyotard would agree, I 
believe, that, in an age that can no longer rely on any »given« criteria, the 
problematic of the law and justice cannot be inscribed in the horizon of the 
4 Cf. J. Derrida, »Force of Law: 'Mystical Foundation of Authority'«, in Deconstruction and the 
Possibility ojJustice, (eds., J. Cornell, M. Rosenfeld, D.G. Carlson, Routledge, London, New 
York 1992, p. 4. 
Fictions of Justice 71 
Good. So we could say that for Rawls and for Lyotard the Good in the sense of 
the Law of Law, the Other of Law, the instance in which the Law is grounded, 
does not exist. In short, both would agree that there can be no foundationalist 
grounding of any given system of legal rules and norms in the Law of Law. 
Yet, from this provisional agreement they proceed in completely opposite 
directions. As pointed out earlier, Rawls's starting point is the assumption that 
the Good in the role of the foundation is lost. According to his view, the Good 
we know of exists only as a multitude of particular, conflicting conceptions of 
the Good that render any consensus impossible. For Rawls, any form of 
political justification appropriate to present-day societies must acknowledge 
that there can be no general agreement on one vision of the Good, and that a 
plurality of opposing and incommensurable conceptions must be taken as 
given. Thus, for Rawls, the Good in the role of the foundation and guarantee is 
at best irrelevant and at worst a regression to the premodern. 
What is problematic about Rawlsian position is that, while admitting the lack 
of the Good as the Law of Law (in the traditional sense of transcendence: God, 
Nature, Reason, etc.), Rawls represses it at the same time. Rawls rightly 
rejects the Law of Law, grounded in the Good. Yet he establishes as its 
replacement, as its substitute the self-grounded Law. 
Lyotard on the other hand, while agreeing with modernists that the Good does 
not exist, nevertheless rejects the proposed solution, that is, the ideal of self-
grounding Law. For Lyotard, the very idea of a self-grounding and, as a 
consequence, of a self-legislation is an illusion. Contrary to this idea of the 
self-grounding Law, the Law of Law is »present« only in its absolute absence. 
The Law of Law, in other words, is an instance whose role is precisely to 
repress and dissimulate an initial fragmentation due to the loss of the Good. 
The central difference between Rawlsian and Lyotardian approach, I will 
suggest, lies however in their divergent opinions on the way the loss of the 
Good relate to justice. Ralws's conception of justice can be considered as an 
attempt to fix, to localise, and to neutralise the dissensus, fragmentation and 
contingency which characterise the contemporary political and social. The 
guideline of his theorising can be fonnulated as follows: how is social unity to 
be understood in the face of seemingly limitless diversity? His answer is to 
separate the formal question of justice from the substantive, material question 
of the Good. The unity of social and) political order is not to be found in the 
Good, that is, in a finite set of shared values, ideals, aims, etc. The Good 
cannot produce an »overlapping consensus«, to use Rawls« expression. On the 
contrary, given its conflicting interpretations, it can only lead to violent con-
flicts and antagonisms. Which is why justice is conceived as a normative ideal 
presented as a universable set of rules and procedures, recognisable and 
acceptable by all. 
72 Jelica Sumic-Riha 
This conception of justice is underpinned, as is well known, by the conviction 
that all conceptions of truth or justice are commensurable. That is, »able to be 
brought under a set of rules which will tell us how rational agreement can be 
reached on what would settle the issue on every point where statements seem 
to conflict.«5 In short, the conception of justice, desired by Rawls, is purely 
regulative: that is to say, a conception of justice which can be acknowledged 
by all as »a common point of view from which their claims may be adjudi-
cated,« as Rawls puts it.6 
2. 
However, it is precisely this association of justice with (rational) consensus 
that Lyotard denies. The modernist conception of justice is, according to 
Lyotard, questionable to the extent that it is grounded in an assumption of the 
subject who is also legislator. Yet this division of the subject is dissimulated 
by the interchangeability of the addressee and author of the Law. 
The very idea that the roles of the addressee and author of the Law are 
interchangeable is inspired by a certain ideal of communication which identi-
fies, assimilates the speaker and the hearer. For Lyotard, on the contrary, »to 
place oneself in the position of enunciator of the universal prescription« 7 is 
clearly an illusion. Yet it is a dangerous illusion because it wrongs the Other. 
And to the extent that the idea of a consensus is an »absolute injustice«, as 
Lyotard puts it,8 he defends an »idea of justice that is not linked to that of 
consensus«.9 
Lyotard's ambition is to analyse those situations where social interaction 
cannot be experienced as an exchange between two equal partners, where the 
position of the other remains irreducibly other. This irreducible gap between 
the two positions testifies, according to Lyotard, to the fact that the Social 
itself is fragmented, dispersed into a multiplicity of incommensurable »lan-
guage games«. Postmodern society is a society characterised by »an absence 
of unity, and absence of totality«.10 It is therefore a society without a set of 
stable criteria which would guide politics or its appraisal. 
5Cf. R. Rorty, Philosophy and the Mirror of Nature, Oxford, Blackwell, 1980, p. 316. 
"Cf. J. Rawls, A Theory of Justice, Cambridge, Mass. Harvard University Press 1971, p. 6. 
7Cf. J.F. Lyotard, The Postmodern Condition, Minneapolis: University of Minnesota Press, 
1984, p. 60. 
»Ibid. 
9 Ibid., p. 66. 
10 J.F. Lyotard, J.L. Thebaud, Just Gaming, Minneapolis: University of Minnesota Press, 1985, 
p. 94. 
Fictions of Justice 73 
Postmodern conception of justice could be therefore a conception which 
remains faithful to the heterogeneity and incommensurability of language 
games. It is a conception that preserves the »agonistic aspect of society«." 
Once it is admitted that there is no privileged, unifying discourse, we are faced 
with a situation in which a general theory of justice does not apply. In other 
words, the Social characterised by the absence of unity and impossibility of 
totalisation demands, according to Lyotard, a new conception of Justice. This 
conception of justice cannot be founded on the category of the autonomous 
subject, an entity which can place itself in a position outside an endlessly 
changing discourses, and there assume a perspective from which the whole 
chaotic field of discourses might be assessed and dominated. 
One of the premises of Lyotard's conception of justice is precisely to reject this 
idea of the self, freed from the risk of exposure and destabilization. On the 
contrary, according to Lyotard, the starting point of any theorising about 
justice is to insist on the impossibility of autonomy and equivalence, in short, 
to insist on the dissolution of the self within a complex texture of social 
relations. Social relations and discourses which constitute them cannot be 
mastered, dominated by the subject because they not only precede him but 
make its constitution, positioning possible. The heterogeneity and incommen-
surability of language games on the one hand and the dissolution of the self on 
the other demands a re-thematisation of justice. Justice, according to this view, 
can only be local, multiple, and provisional. It is subject to contestation and 
change, allowing no generalisation of (universal) rules or principles. Once the 
heterogeneity and incommensurability of language games is admitted, we are 
faced with a situation where conflicting claims cannot be settled by referring 
to a common rule or criteria, for they do not and cannot exist. In short, we are 
faced with a situation in which one must judge without criteria, as Lyotard puts 
it.12 
In Just Gaming Lyotard illustrates this point by using as an exempla Aristotle's 
judge who has no criteria to guide his judgement. According to Lyotard, the 
problem of judgement is precisely the problem of having to make a good 
judgement without resorting to already existing rules. It should be noted, 
however, that Lyotard's point is the invention of rules rather than the absence 
of rules. 
Lyotardian idea of a plurality of justices and a »justice of multiplicities« lays 
the basis for a different, postmodernist, politics. This political strategy is 
claimed to do justice to plurality, heterogeneity and incommensurability of 
11 Ibid., p. 16. 
"Ibid. 
74 Jelica Sumic-Riha 
language games. There is only one principle that operates in politics adjusted 
to »justice of multiplicities«: one must accept the assumption that the Social is 
grounded in a radical, insurmountable dissension. In other words, challenging, 
contestation and putting into question must always be allowed or else we are 
faced with totalitarian terror rather than not justice. Also no one language 
game can mediate between competing language games, nor can specific prin-
ciples or rules settle disputes. 
Lyotard's main point, however, is that the modernist idea of justice is not only 
inadequate. It is absolute injustice. It is injustice to the extent that the unanim-
ity, rationality, and sameness, that is, the constituents of the modernist idea of 
justice, are produced by the process of exclusion, marginalisation and suppres-
sion of the heterogeneous and differences. Denouncing this active subordina-
tion of plurality to a set of universal principles, Lyotard advocates for a 
»vengeance« against the conception, according to which, justice is subsumed 
under the universalistic form of Law. 
On its way to the »right answer«, to use Dworkin's expression, justice identi-
fied with the universal law inevitably excludes and marginalises cases which 
cannot be accommodated within its own framework. It is precisely this aspira-
tion to the universalisation, a crucial characteristics of the modernist concep-
tion of justice and the rule of law, which, according to Lyotard, generates cases 
of unresolvable differends, that is, cases of a radical injustice or a wrong (le 
tort).The issue of differend is introduced by way of postulating that there is a 
necessary redundancy of genres of phrases which is suppressed by the limited 
number of idioms that can survive. This superfluity causes an agonistic »selec-
tion«, if I may say so, which allows only a fewer stronger variants to survive 
and suppress a great number of weaker ones. These become victims unable to 
express the violence they have suffered. 
Lyotard's ambition is to put forward the notion of the differend, that is, the 
notion of activating and bearing witness to conflict, as a political strategy. At 
issue here is not the question of how differences are to be resolved, but rather 
the question of whether they can be articulated, »phrased«. The difficulty lies 
in the fact that one can only perceive the harmless kind of conflict which 
Lyotard calls »litige« (litigation). In this case, it is possible to find an idiom 
which can solve the conflict because it covers both parties and provides a »rule 
of adjudication« (a regie du jugement). A »differend«, by contrast, is a conflict 
which for structural reasons cannot be resolved equitably. In this case, there is 
no idiom applicable to both parties. A case of differend between two parties 
»takes place,« says Lyotard, »when the 'regulation' of the conflict which 
Fictions of Justice 75 
opposes them is done in the idiom of one of the parties, while the injustice 
suffered by the other is not signified in that idiom.«13 
The crucial question is what implications can one draw from Lyotard's attempt 
to »rephrase« the political in terms of the justice of multiplicities which, in 
turn, is grounded in the notion of a differend? 
In order to assess Lyotard's contribution to contemporary political theorising it 
should be noted that his emphasis on dissensus is no doubt a valuable contribu-
tion. He attempts to account for the antagonistic, conflicting nature of the 
political. His concept of the differend points to the need to articulate differ-
ences between competing political positions. In addition, the concept de-
nounces some of the ways and strategies used by the mainstream political 
though in practices in their attempt to disregard and, ultimately, to suppress the 
heterogeneous. 
Yet the initial openness to the otherness of the other, to differences, and the 
insistence on the incommensurability of multiples discourses, although in 
itself indisputable, may lead to problematic consequences. The fundamental 
undecidability with respect to the question of which side engaged in a conflict 
is right, when no criteria available are acceptable for both sides, may lead to a 
conclusion not only that all political and social demands are legitimate, but 
also that the outcome depends on the capability of the stronger to impose his/ 
her vision of the just on the weaker or defeated side. 
Many commentators objected to Lyotard's conception of justice because it is 
grounded in a position of a self-conscious equivocation with respect to con-
flicting demands and discourses. Such a position is considered disastrous since 
it does not allow for the distinction between true and illusory consensus, a just 
and unjust society, a good and a bad action. This inability to draw a line of 
demarcation between what can and what cannot be tolerated, which characterises 
the position of cynicism as well as the position of indifference, undermines, 
according to their view, the very foundations of democracy. 
This critique, although pointing to some of the problematic features of Lyotard's 
conception of justice, is questionable to the extent that its starting point is the 
normative view. And it is for that reason that they seeks the original sin in 
Lyotard's conception of the incommensurability of language games and, as a 
consequence, in a radically antagonistic nature of discourses which constitute 
the Social and the political, that is to say, precisely in those theorisation which 
constitute Lyotard's main contribution to the teorising of political. 
13 J. F.Lyotard, The Differend, Manchester University Press, Manchester, 1988, p. 12. 
76 Jelica Sumic-Riha 
However, the very possibility of the subversion of an initial openness and 
tolerance in its opposite requires a radical reappraisal of Lyotard's conception 
of justice as well as his critique of the relationship between law and justice. 
While modernist privileging of the universal law, as Lyotard rightly points out, 
wrongs justice conceived as always only contingent, singular, and particular; 
Lyotard's own view, which starts with the rejection of the universalistic law as 
totalitarian, by privileging the justice of multiplicities, the incommensurability 
of various visions of the just, may lead, in the last instance, to the destruction 
of the very idea of justice. 
What is at stake here is precisely the relation between the initial incommensu-
rability of all claims and, as a consequence, a radical undecidability with 
respect to the legitimacy and justifiability of those claims to justice. This 
question is, in my view, more than justified since the only conclusion one can 
draw from the radical incommensurability, which denies the very possibility 
of a rule or criteria for decision and judgement, is that all claims to justice are 
legitimate. 
Yet, if politics and legal adjudication involve a decision-making, the question 
arises of how to ground and account for a decision-making that does not refer 
to common, universal criteria and rules. Is not this suspension of decision 
ethically irresponsible and politically harmful, as critics of postmodernism 
repeatedly point out? 
3. 
So far I have tried to confront modernist and postmodernist conception of 
justice. Now I would like to examine some of the consequences of their 
antagonistic relationship. This relationship generates - as has been pointed out 
- a differed, an unresolvable conflict. I have started this presentation with the 
thesis that the differend between the two theoretical approaches is but a 
repetition, an actualisation of the original differend which constitutes the 
relationship between law and justice. In an attempt to explain the relationship 
between the Rawlsian and Lyotardian conception of justice, the Lacanian 
formula of communication may be of some help. According to this formula, 
the speaker receives from the addressee his own message, yet in its inverted, 
that is, true meaning. Thus it could be said that both modernist and postmodernist 
conceptions return to the other its own lack. The postmodernist critique rightly 
calls attention to the fact that the universality of law, as such, is contaminated 
with the particularity of the place of its enunciation. On the other hand, the 
modernist critique of postmodernist conception could show that the very idea 
of incommensurability of justices, the insistence on the absolute heterogeneity 
Fictions of Justice 77 
of justice in relation to the law, on an absolute undecidability as to which side 
in a conflict is right, paradoxically turns into its opposite: a universalised 
injustice, or in other words, radical evil. Thus we could say that the two 
approaches share something in common: their unwillingness to bear responsi-
bility for the aporia of the relationship between law and justice. While it is true 
that Lyotard is at least sensitive to this aporia - as opposed to Rawls who does 
not perceive it at all. However, Lyotard's failing lies in the fact that, for him, 
the aporia is to be conceived as the solution to the problem of the incommensu-
rability between law and justice. As a consequence, law and justice are 
substantivated and fixed in their mutual exteriority and exclusivity. 
My ambition is, on the contrary, to thematise this irreducible gap between law 
and justice which, I believe, is constitutive of both. How is their mutual 
heterogeneity, irreducibility to be conceptualised? Is there a possibility of their 
reconciliation? Here, I think, Derrida's approach may be of help. Despite the 
fact that Derrida himself was accused of avoiding the discussion of political 
and ethical questions, I believe that his deconstructive reading of law and 
justice suggests a way out of this impasse. One may, of course, doubt if 
Derrida is capable of providing such a solution given the fact that he privileges 
responsibility (political, ethical, legal) over mere decision-making, which is 
understood as choosing between alternatives. Moreover, according to Derrida, 
what characterises responsibility is precisely its undecidability, to the extent 
that one could say that a responsible answer to the aporia of decision is its 
constant deferring to the future, in short, its suspension. Derrida, for example, 
points out that »there can be no moral or political responsibility without this 
passage by way of the undecidable«.14 What, then, one could ask, could count 
as a responsible attitude toward the universality of law on the one hand and the 
singularity and heterogeneity of justice on the other? In other words, is it 
possible to avoid traps of both the modernist and postmodernist conception of 
justice? Against both modernists, who subsume justice under the universal 
law, and against postmodernists who, on the contrary, insist on the multiplicity 
of justices while denying the universal law, Derrida seems to insist on a 
paradoxical subjection to both: law and justice. According to Derrida, one 
needs to obey universal rules, while at the same time, one must respect the 
contingency and particularity of justice. 
So how are we to conceptualise this »impossible« reconciliation of both law 
and justice? One could say that Derrida attempts to achieve an impossible 
»synthesis« of both positions, modernist and postmodernist. In other words, it 
seems as if Derrida accepts to a certain degree a modernist conception of law 
14 J. Derrida, Limited Inc., p. 116. 
78 Jelica Sumic-Riha 
since he admits that the law, in contrast to justice, can be accounted for in 
terms of a good rule applied to a particular case. As to justice, it seems as if 
Derrida follows a postmodernist line of argument: justice, for Derrida, in-
volves singularity and contingency. It concerns the »otherness of the Other« in 
a unique situation, irreducible to principles of duty, rights, or universal law. In 
short, justice is incalculable by definition. It is incalculable because it entails 
moments in which the decision between just and unjust cannot be insured by a 
rule. Thus one could say that justice is the experience of incommensurability, 
of the impossible, of the undecidable, of the aporia, as Derrida puts it. 
Yet the difficulty about this position is that in order to be faithful to incalcu-
lable justice one needs, paradoxically, to calculate, to obey the calculable law. 
And vice versa: even in those instances where the singular case of the »other« 
is to be applied to the universalisable law of the »same«, there remains a trace 
of undecidable which Derrida identifies with justice. He writes: 
»The undecidable is not merely the oscillation or tension between two deci-
sions, it is the experience of that which, though heterogeneous, foreign to the 
order of the calculable and the rule, is still obliged ...to give itself up to the 
impossible decision while taking account of law and rules. A decision that 
didn't go through ordeal of the undecidable would not be a free decision, it 
would only be the programmable application or unfolding of a calculable 
process. It might be legal, it would not be just«.15 
The undecidability of justice is therefore that which subverts the legal and 
political decisions' claims to certainty and legitimacy. No decision is uncondi-
tionally decidable. No decision is ever totally pure, wholly present to itself. No 
decision is wholly subsumed under rules, since an element of incalculable 
singularity always contaminates it. On the other hand, there is never a com-
pletely, absolutely just decision, since some element of rule determination is 
always present. In short, all decisions are to some degree impure. 
Yet there is another aspect of the opposition between law and justice. Accord-
ing to Derrida, the law is always deconstructible. Justice, on the other hand, is 
immune to deconstruction. In fact, justice is identified with deconstruction. 
Now, how can we account for this divide between law and justice with respect 
to deconstruction? In terms of Lacanian theory, the gap between law and 
justice could be rephrased as the gap between the Symbolic and the Real. Thus 
it could be said that justice - being always singular, but repetitive, inert, 
returning to the same place - in a relation to the universal law presents an 
insurmountable limit, a transcendence which renders the law incomplete. On 
15 J. Derrida, »Force of Law: The 'Mystical Foundation of Authority'«, p. 24. 
Fictions of Justice 79 
the other hand, the paradox of justice could be described as follows: justice -
while referring to the singularity and heterogeneity of the other, appeals to a 
rule. In so far Derrida is right in saying that it is just that law exists, but this 
does not mean that the law can be identified with justice. If justice could be 
reduced to a mere application of the law, than justice, in the true sense of the 
word, would simply disappear. 
How are we to conceptualise the relationship between justice and law? In 
order to link them together we may try to do so by bringing into play the 
concept of repetition. While it is easy to grasp the repetitive character of the 
law. After all, the essence of law consists in a repetitive application of the 
same universal form to various singular cases of violation of law. But it seems 
difficult if not impossible to conceptualise justice, as always singular, contin-
gent, etc. in tenns of repetition. Yet I will try to do so. 
What constitutes the law as universal is precisely a repetition of a signifier, a 
trait in relation to which different cases of violation are reduced as violation of 
a particular norm or rule. Justice, I argue, as only ever singular, contingent, 
etc. is precisely that which does not allow for a repetition. Thus the rendering 
of justice cannot be reduced to a mere application of rules to the extent that it is 
conceived as radically unique. And this impossibility of »taming« justice and 
subsuming it to the law, and vice versa, this impossibility of the law to 
integrate justice, this repetitive failure of law to encompass justice is what I 
call a traumatic encounter of the Real. Thus Derrida's »call for justice«, »a 
desire for justice« which is not law, but deconstruction in actu of law and 
politics presents itself as the Real which emerges in the field of universal Law 
and disrupts it. 
Is there a solution to the aporia of Law and justice? We shall look for it in the 
direction already indicated by Derrida. Yet what is crucial in this suggested 
solution is the fact that it is grounded on three instances of »blindness« or 
suppression. 
Firstly, the suspension or the epokhe of the rule. A judge must found his/her 
decision on a rule, yet the act of just decision is never a result of a simple 
application of a rule. His/her decision is conceived as a just decision only if it 
is perceived as an act which posits its own rule. A just decision therefore must 
presuppose a rule and, at the same time, its suspension. 
Secondly, in order to be a decision (just or unjust) we must blind ourselves to 
the radical undecidability in which all decisions are grounded. Although there 
is no moment in which a decision is fully present and just, as Derrida puts it, 
since a decision either has not been made according to a rule - thus we cannot 
call it neither just nor unjust - or it follows an established rule which means 
80 Jelica Sumic-Riha 
that a decision is reduced to calculation and cannot therefore be called just. 
However, in order to be a decision we must blind ourselves to this irreducible 
gap between calculation and a decision which follows no rules. In other words, 
we must pretend as if the moment of a decision is a coincidence of an invention 
of a rule and its following. 
Thirdly, a decision is accomplished in haste, in urgency. A just decision, as 
Derrida puts it, is called immediately, it cannot wait. This haste, this urgency 
which leads to a suspension of knowledge about facts and situation, a suspen-
sion of a rule suggests that a decision is acting »in the night of non-knowledge 
and non-rule«,16 as Derrida puts it justifying in this way his quotation from 
Kierkegaard who identifies a moment of decision with madness.To put it 
differently, even it we believe that we behave and decide according to a rule, 
the decision is, in the final instance, a jump into the unknown, into an abyss. 
Thus the paradox of the relationship between justice and law could be formu-
lated as follows: we know that law as such is not and cannot be just. However, 
if we accept that and behave according to this knowledge, we will have lost not 
only justice, but also law. Law is namely conceived as an instance that appeals 
to justice which means that a law that does not refer to justice is simply not a 
law. It is therefore in some way necessary to blind ourselves to this knowl-
edge. In other words, we must blindly believe that justice can be rendered only 
by respecting laws. In Derrida's terms: even if justice cannot be reduced to 
rule-governed activity we must respect rules. We must respect them because in 
the very undecidability of justice on the one hand and groundlessness of law 
on the other lies the danger that the right to do justice can be usurped by bad 
legislators. 
16 Op. cit., p. 24.