The Trans Ordinary

“…Thus, norms (whether norms of liberty, equality, to bodily integrity or personal cultivation) within these legal contexts do not, a fortiori, take difference and otherness (to use a philosophically laden term) seriously. They can only count upon what fact-situations are at play in the present instance of the case, and make subjects legible in relation to those facts.

Habermas admits of this, but is far from criticizing its far-reaching effects. Habermas, in dealing with how Dworkin disposes two legal cases according the Herculean theory of adjudication: “In the first case, law crystallizes around the rights of the private market participant, in the second case, around the entitlements of clients of welfare agencies. Such paradigms relive Hercules of the hypercomplex task of surveying an unordered set of prima facie valid principles and norms that must be related directly with the naked eye, as it were, to the relevant features of a situation apprehended as fully possible” (1999, 221; italics my own). This crystallizing effect, however, situates and fixes more than an otherwise unordered set of imaginary socio-legal norms for adjudicative ease; it situates and fixes the identities and lifeworlds of subjects who intend to claim them. Is this not Levinasian violence?”