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Document Details :
Title: Can the Legal Order 'Respond'?
Author(s): GEHRING, Petra
Journal: Ethical Perspectives
Volume: 13 Issue: 3 Date: september 2006
After a brief explanation of my approach, this paper questions the foundations of a phenomenological theory of law, deploying the argument in three steps. In a first step I reconstruct the connection between Anspruchand Anrecht as developed in Waldenfels’ paradigm of responsiveness. Can law be characterised as an order that is able to ‘respond’ in this specific sense? The second step confronts the radical perspective of a phenomenology of the alien with the question of order. Can a theory of order characterise law as ‘just,’ given that modern positive law is explicitly contained in and founded on itself? In a third step I review the boundaries of law. Would a phenomenology of law acknowledge law as a dimension that – inside the boundaries of law as order – is structurally able to react to the alien and to respond to alien appeals? The overall answer to these questions will be negative. A phenomenology of the alien will not surmount the boundaries inherent to the legal order as order – which push- es the question of justice to the outer limits of the law. The question of the alien, then, does not refer to questions within law; rather, it refers to the problem of juridification or to the sacrifices to be made to obtain access to rights. Decisive is the step into the realm of law, not a certain rule or a decision within thatrealm. If one is to pursue the phenomenological viewpoint of the alien and the dual theme of Anspruch (claim, appeal,and address) and Antwort, legal phenomena should be considered from the problem of order – in a critical vein to be sure.