“To be or not to be?” – in a sense that has always been the question of ethics, of the life worth living, and philosophy would be the search for the answer to that question. In this essay I would like to propose an alternative formulation and interpret it, rather grotesquely (Shakespeare I'm not), as the following: “To ontologize the ethical or not to ontologize the ethical: that is the question of politics.” Ultimately, I would like to suggest that this is a question that must but cannot be answered, or at least answered by philosophy, by a philosophy that retains the ideal of an “answer” that conforms to the form of knowledge. The vehicle for this exposition will be several texts by Jacques Derrida (primarily “Force of Law: The ‘Mystical Foundation of Authority'” and Specters of Marx). My hope is that this discussion will ultimately justify (or at least excuse) my grotesque paraphrase of Hamlet as well as my rather pretentious subtitle.

In these notes, I reflect on the possibilities of confronting the darkest chapters of East-Central European history, namely, genocide. This problem is closely related to the moral refoundation of society, law and politics. My concerns are primarily related to the role of law in the process, both descriptively, by trying to explain very contradictory developments in Hungary, and normatively, by arguing for a shame dictated legal policy.

[Editorial Comment: This engaging dialogue between the two authors is a selection from a much larger piece including a wider exploration of Derrida's intellectual context and his current interlocutors in law and the social sciences in general. The editors of this Special Section hope to publish further parts of this conversation in a subequent issue of German Law Journal.]

The fundamental right to an effective remedy as guaranteed in Art. II-107(1) of the ‘Treaty establishing a Constitution for Europe’ (CT) is part of a comprehensive guarantee of effective legal protection and procedural guarantees. In the following, this fundamental right and how it relates to Parts I and III of the CT will be investigated in detail. First, the scope of Art. II-107(1) CT will be identified in Part B. Part C comments on the binding effect of this right. Finally, in Part D, some aspects of the Union's system of legal protection will be investigated in the light of Art. II-107(1) CT, and it will be discussed whether this right could be an instrument to close gaps in the legal protection of individuals against measures of the European Union.

It seems by now an established fact that “social identity” implies a construction against an “Other”. This includes the fact that it is much easier to say who “we are not” than “who we are” (and what this means). The fact that “we Europeans” cannot say “who we are” is commonly accepted and blamed as one of the major deficits of the European Union. One possible approach to overcome this deficit might, therefore, be to say “who we are not.”

There has perhaps been no greater thinker of the future than Jacques Derrida. Throughout his entire body of work Derrida constantly returns to the thinking of the “perhaps,” of the arrizant. This thinking of the “perhaps” takes shape as what is “new” and other to our world, something that is therefore unknowable even as a horizon of ideality that both arises out of and points to what ought to be in any given world. I renamed deconstruction the philosophy of the limit so as to emphasize Derrida as the protector of what is still yet to come. My argument was fundamentally that Derrida radicalized the notion of the Kantian meaning of “laying the ground” as the boundaries for the constitution of a sphere of valid knowledge, or determinant judgment. In Kant, to criticize aims to delimit what is decisive to the proper essence of a sphere of knowledge, say for example science. The “laying of limits” is not primarily a demarcation against a sphere of knowledge, but a delimiting in the sense of an exhibition of the inner construction of pure reason. The lifting out of the elements of reason involves a critique in the sense that it both sketches out the faculty of pure reason and surveys the project as the whole of its larger architectonic or systematic structure.

In the 1970s and 80s, the philosophical works of Jacques Derrida became known well beyond the borders of France and beyond the limits of the French language. It was a radical and disturbing new form of materialism which made Derrida's thought so notorious: a philosophy of writing, of différance, of the movements of negation which always escape our grasp – with the effect that all theoretical trust in the idea of “presence” is undermined. Derrida develops his thought relentlessly on the border between form and content. It could be said that he balances on this border. And he conceives these diverse, experimental balancing acts, which are portrayed as readings of other texts, as a procedure in its own right – a procedure, called “deconstruction”, which has a distinctly irritating effect on the reader.

In a letter of 1952, the former German judge Lothar Kreyssig launched his idea of a reconciliation programme based on the religious – Christian – concept of atonement. From the manual work of German volunteers, those who had formerly been persecuted and their enemies, namely, the State and the People of Israel and Jews on the one hand and Great Britain and the British on the other, should benefit. The addressee of this letter was Graf Paul Yorck von Wartenburg, the brother of the executed resistance fighter Peter Yorck, then working for the Ecumenical Council of Churches in Geneva, who later worked as a German diplomat with a consul assignment in Lyon.

The main purpose of this paper is to consider the impact of the Treaty establishing the Constitution for Europe (hereinafter: the Constitutional Treaty or CT) on the realization of the Area of Freedom, Security and Justice (hereinafter: the Area or AFSJ). The paper has two parts. The first part deals with the Area in current law, whereas the second part focuses on the provisions of the Constitutional Treaty concerning the Area.

In his famous talk “The Force of Law,” given at Cardozo Law School in 1989, Derrida linked his work with the Critical Legal Studies movement. This lecture signposted a change of direction in deconstruction. Early deconstruction had been criticized for formalism, aestheticism and scant recognition of political realities. Derrida's (in)famous statement that “there is nothing outside of the text,” was a rare philosophical sound-bite meaning that language, communication and social interaction cannot avoid, as commonly assumed, the uncertainties and ambiguities of the written text. But the aphorism was often misinterpreted to signify extreme idealism, disregard for the real world and literary and philosophical reductionism. But the “Force of Law” signified a clear turn towards political and ethical engagement, symbolized by the discussion of law and justice. After that talk, deconstruction became obsessed with questions of ethical responsibility, the meaning of friendship and the complex relationship with the other. Before his death, Derrida wrote a number of essays on contemporary political events. He denounced the Kosovo and Iraq wars and devoted a book to ‘rogue’ elements and states, in which he attacked the United States as the greatest rogue. Just before his untimely death in 2004, Derrida had become preoccupied with the concept of sovereignty at the basis of the tragedies and abuses of modernity. It is this political and ethical turn of deconstruction that I would like to address in the context of critical legal theory.

A project concerning itself with the effects of the past on the European integration process must also raise the question of the emergence of guiding historical images in the course of this process. As the past is not objective truth, but a perception generated by various actors (e.g., politicians, populist movements) as well as by history as a science in accordance with its own aims and rationality criteria, it appears in very different narratives. Many such historical images of Europe are generated by legal history. Since the Treaty on the European Union brought European integration a deeper, political dimension, a euphoria about Europe has broken out in legal history.

As Europe forges its legal order, constitution, and self-understanding, many appear to believe that identifying and enacting laws and a legal framework that correspond to shared concepts of justice and human rights will solve the problem of legalized barbarism which once plagued Europe and which has been a recurrent feature throughout time and across the globe. The historical propensity of courts, even in democratic states, to legitimate and enable policies of persecution and discrimination provides compelling evidence that the current level of faith in law is misplaced.

This provocative assertion, sharply contrasting with the decades-old criticism of deconstruction as an aesthetisizing apolitical and ahistorical exercise, recapitulated in 1989 the stakes of an infinite task and responsibility that, in spite of and because of its infinity, cannot be relegated to tomorrow: “[…] justice, however unpresentable it may be, doesn't wait. It is that which must not wait.” It is in the spirit of such urgency, of a responsibility that cannot be postponed, that Jacques Derrida was an active and outspoken critic and commentator on issues such as South Africa's Apartheid, the Israeli-Palestinian conflict, the bloody civil war in his native Algeria, human rights abuses, French immigration laws, the death penalty, and on what Richard Falk has termed “the great terror war”.

Many scholars of European integration have treated the Common Foreign and Security Policy (CFSP) as a specific area of the EU. This is due to the fact that CFSP, and before it the European Political Cooperation (which was a nucleus of CFSP), have remained primarily an intergovernmental framework, although other EC pillars evolved to a much higher supranational degree over the years. For some theorists of European integration it was a clear sign that foreign and security policy would always remain the realm of national governments, which occasionally were willing to coordinate their national interests. According to the old dictum of Stanley Hoffmann, this area of state activity belongs to so-called “high politics,” meaning that advanced integration in this field, in the sense of a creation of supranational institutions, will never materialize. This train of thought, called neo-realism in the discipline of International Relations, regards foreign policy as a highly controversial area guarded by national governments. This is so because foreign policy is essential to the survival of states and their citizens.

Given the remarkable consistency in Jacques Derrida's work over several decades, it is not hard to draw a line from “Force of Law: The ‘Mystical Foundation of Authority’” to his last seminars, on pardon and forgiveness. The aporias of forgiveness are analogous to those of the gift and of justice he had analyzed in detail in previous decades, as Derrida states in “To Forgive: The Unforgivable and the Imprescriptible” — to that extent his last seminars and lectures were part of the same deconstructive project on the possibility of justice. At the same time, Derrida postulates that forgiveness is an experience outside or heterogeneous to the rule of law. In considering this juncture in Derrida's work, this paper will juxtapose the logic and history of amnesty with Derrida's analysis of pardon: the latter pivots on a monotheistic heritage, a Biblical-Koranic sense that is demarcated from the former concept, that of amnesty between an ethics of forgiveness and the politics of forgetting.

Last year marked the tenth anniversary of the Rwandan genocide when more than 800,000 people were slaughtered within 100 days under the watch of the international community. As the United Nations has since acknowledged, “[t]he international community did not prevent the genocide, nor did it stop the killing once the genocide had begun.” The whole world failed the victims – a failure the UN Report called a fundamental “failure of the international community [and] failure of the United Nations system as a whole.” Those who could did little or nothing to help. Indeed, some actively concealed or denied the unfolding genocide. Interestingly, the genocide took place more than half a century after the victorious allies of World War II vowed “Never Again!” to genocide in response to the Nazi holocaust. Also, by 1994 the 1948 Convention on the Punishment and the Prevention of the Crime of Genocide under which states assumed a legal duty to prevent and punish the crime of genocide was nearly half a century old.

European Directives impose upon Germany the obligation to incorporate antidiscrimination provisions in its civil law. The anti-discrimination legislation is intended to provide effective civil law remedies against discrimination in everyday life by private persons, e.g. access to housing, restaurants and education. For the purposes of this article, discrimination may generally be defined as any treatment – including a refusal to deal with – by a private party that is less favorable than to another person and is conditioned upon a characteristic such as racial or ethnic origin, sex, etc.