Self‐subversive Justice: Contingency or Transcendence Formula of Law?

Dominated by social and legal philosophers, the present debate on justice oscillates between the poles of universality (Rawls, Habermas) and alterity (Levinas, Derrida). The article contrasts them with a third position, a sociological theory of justice in which justice appears as the 'contingency formula' of law (Luhmann). Here, the question of justice is no longer primarily a problem for philosophy but for concrete social practices in the changing self-descriptions of law. This opens perspectives for historical analyses to investigate into affinities of varieties of justice with changing social structures. More important is its potential to reformulate the concept of justice under present conditions which could give directives for legal theory and practice. The central argument confronts Luhmann's with Derrida's ideas on justice. Parallel to Luhmann's concept, justice is neither an internal legal norm, nor is it an external social, moral or political program, but aims - now in contrast to the case of Luhmann - at the transcendence of law, which is unattainable to legal operations but whose demands they are continuously subject to. Luhmann's sociology does not address this question; instead, it is solely concerned with the immanence of law, the positivity of legal acts, legal rules, and law's relation with the social environment. To the extent that Levinas and Derrida emphasise the irreconcilable difference between positive law and such a form of justice, they formulate the transcendent dimension of law. From such a confrontation of contingency and transcendence in the concept of justice a deeper understanding emerges for subversive practices of self-transcendance in law which are neglected in official legal theory and doctrine.