The Rule of Law and its Shadow: Ambivalence,Procedure,and the Justice Beyond Legality

Abstract

The subject capable of liberal legality ought to be revised such that the self-sufficient autonomous individual cohabits with a passive self always already burdened with responsibilities she did not choose. This essay uses the philosophy of Emmanuel Levinas to delineate the relationship of this new subjectivity to liberal theories of justice, and reveals a productive ambivalence with regard to justice residing within rule of law scholarship: why is it that we sometimes have to transgress the rule of law in order to do justice to what it stands for? Emerging debates about the rule of law in calls for international humanitarian intervention help us think through this question in its concrete urgency. The linkage then demonstrates that law's justice exists only as a delicate and never-concluded balancing process between the demands of ethics and those of politics — a process of balancing that is mirrored in the new account of a subject who aspires to justice and therefore makes justice beyond strict legality possible. Ambivalence is inevitable, but its effects are not limited to nihilistic resignation. Rather, ambivalence can point out for us mani-fest responsibilities too often overlooked by liberalism's autonomous individualized subject. Law, Culture and the Humanities 2007; 3: 225—243