Declarations of independence

Chapter 2

Declarations of independence

‘Declarations of independence’ (hereafter ‘DoI’), dating from 1976, the year marking two hundred years of US Independence, is one of the earliest essays of Derrida which explicitly has law as its theme. It is a short essay, presented for the first time at the University of Virginia in Charlottesville, which draws on Derrida’s other texts in which he enquires in more detail into concepts such as speech acts, representation, the proper name and the signature. In ‘Force of law’ (AR 235) Derrida refers to this essay among others in refuting the claim that his texts hitherto had shown little or no concern for the themes of justice, ethics and politics. Close scrutiny of ‘DoI’ confirms that there is no break or turn in Derrida’s thinking from the time of the presentation of this essay to ‘Force of law’. With the benefit of hindsight, all the claims Derrida makes about justice in ‘Force of law’ are already to be found, or at least anticipated, in ‘DoI’. Moreover, the undeniably ‘ethico-political’ placing in question of sovereignty in Derrida’s texts of the 1990s and the early 2000s is clearly already at stake here. In ‘DoI’, Derrida more specifically seeks to challenge the traditional view that a state is founded by the people as sovereign and as the originating source of political power (pouvoir constituant), and thus of the notions of self-government and democratic self-determination. The point of this deconstruction is not however simply to reveal the consequent absence of origin in the founding of a state, nor to simply reject these founding democratic ideas, but to enquire into their ‘pre-origin’ or condition of possibility, thereby reinscribing these ideas within new ‘concepts’ which go beyond the restricted economy of metaphysics.

The difficulty with this text of Derrida is its brevity and accompanying elusiveness as well as the fact that in challenging sovereignty, it relies without referring to them explicitly, on a range of his other texts which challenge traditional philosophical ideas about language. Different from what is at times stated, and as is shown by a somewhat more careful analysis of his texts, Derrida never abandons his earlier analysis of language and literature, when he starts to address more openly politico-legal issues. This is to be seen, for example, in ‘Force of law’ and Specters of Marx where the notion of performative speech acts plays a prominent role. These later texts thus rely either explicitly or implicitly on Derrida’s earlier analysis of language and literature. To understand the nature of Derrida’s analysis in ‘DoI’, it is furthermore essential to keep in mind his relation to structuralism (Chapter 3). In this respect the texts of Lévi-Strauss are of course paradigmatic, for example his analyses of myth. Lévi-Strauss shows himself to be less concerned with finding the meaning of individual myths, than with exposing the structure which underlies all myths. Derrida’s relation to the work of Lévi-Strauss and to structuralism in general is complex and it would perhaps be accurate to say both that he places in question the central presuppositions of structuralism (Sedgwick 2001: 194) and that he takes structuralism to its ultimate consequences (Berns 1998: 25). Derrida finds specifically problematic structuralism’s reliance on the fundamental principles of metaphysics such as the search for an origin, its reliance on metaphysical concepts, as well as its reliance on the typical oppositional structure of metaphysics.¹ Moreover, structuralism’s emphasis on ‘the accomplished, the constituted, the constructed’, in Derrida’s view, disregards the importance of force in giving rise to the construct (WD 5). ‘Force’ is here to be understood in a specific ‘sense’, as a force of weakness which gives rise to language (WD 27); it is itself without meaning, and finds expression for example in the notions of ‘iterability’ and ‘performative powerlessness’ which will be explored below. As we will see in this chapter, Derrida, as typically happens in structuralist texts, explores underlying structural conditions in his analysis of concepts, but these show an acute regard for ‘force’. We could moreover say that Derrida’s reliance on the notion of ‘structure’ is no longer to be understood in its metaphysical sense, but in a quasi-transcendental sense which exceeds metaphysics and which, as we saw in Chapter 1, he sometimes refers to as a ‘stricture’.²

To enable a close reading of ‘DoI’, it is also necessary to address briefly the way in which Derrida deals with the conceptual oppositions of metaphysics.³ The most well-known example of this is the speech-writing opposition which is analysed in Of Grammatology and ‘Plato’s pharmacy’. Often, in relying on or relaying this typical deconstruction of hierarchical oppositions in the legal context, not enough care is taken in discerning as well as in explaining the motivation behind the steps taken in doing so, the steps themselves as well as the ‘translation’ of such deconstruction into law.⁴ In attempts at ‘translation’, it has been contended, for example, that deconstruction sanctions the overturning of all or any hierarchical opposition(s) in a specific legal system.⁵ This in turn easily leads to the conclusion that deconstruction is relativistic as well as that it can be instrumentalised. Things are somewhat more complex as will also appear from the more detailed discussion below. One of the themes of ‘DoI’ is, for example, the distinction between constative and performative speech acts. With reference to what was said above, it is important in reading ‘DoI’ to note that in deconstructing texts or hierarchical oppositions, Derrida does not simply overturn or equalise, and thereby expose the ‘undecidability’ between (an existing hierarchy of) concepts. What he does or what happens through his reading of texts is that a further inscription takes place. Derrida searches for and brings out the condition of possibility of concepts. This leads to the invention of ‘non-concepts’ such as iterability, general writing or différance within which the concept(s) analysed are reinscribed. Derrida’s analysis of constative and performative speech acts, representation, the signature, and the proper name, which are the most prominent themes in ‘DoI’, illustrates this well and will be explored within this context in what follows. Although all of these aspects are closely interlinked, they will be discussed separately for explicatory purposes.

This passage, in two instances, clearly relies on both the performative and the constative modes, by invoking God to secure this conjoining (Neg 51–2).6 In so far as the first instance is concerned, as Derrida points out, in spite of what the Declaration may claim, the people do not ‘exist’ as an entity before the signing of the Declaration. The people give birth to themselves only through the act of signature (Neg 49–50).7 The representatives, when they ‘sign’ in the name of the people, likewise only obtain this right or the legitimacy to sign, retroactively (Neg 50). The people, through the intervention of their representatives, thus give themselves a name, as well as the power, right or ability to sign, and they do so in the future perfect tense (Neg 50).⁸ The second instance of a performative–constative structure involves the erasure of another state signature, by dissolving the paternal or maternal link with the colonial country (Neg 50).

‘DoI’ does not fully explore and only alludes to Derrida’s other texts which deal with the performative-constative speech-act distinction initiated by J. L. Austin.⁹ A constative speech act consists in the saying or describing of what exists and can be tested for its truth or falsity against reality. An example: ‘It is raining today.’ A performative speech act on the other hand does something in so far as it is uttered (Austin 1975: 6). Examples of performative speech acts are promises (‘I promise to do this or that’), apologising, the naming of a ship, marrying (‘I do take this woman as my lawful wedded wife’), the making of a bet, bequeathing something to someone, making a gift, bidding someone welcome, forgiving someone, making a judgement, and here, declaring one’s own independence (Austin 1975: 5, 9, 45–6). These utterances cannot be evaluated as to their truth or falsity. They are rather to be evaluated as to their success or failure, depending on whether the conditions conventionally required by the context are fulfilled (Austin 1975: 14–15). When I make a promise, for example, I am not commenting on an event; my speech act instead constitutes the event, produces the event (‘CIP’ 446). The importance of the discovery of performative speech acts by Austin for Derrida lies in the fact that a performative speech act does not have its ‘reference’ outside of itself. It in other words does not refer to something that exists beyond language and prior to language (Ltd 13). It rather produces or transforms a situation. Although, as Austin later acknowledges, a constative speech act can actually be said to do the same, Derrida notes that this is not constitutive of its internal structure; it is not its manifest function or aim (Ltd 13). Another important aspect of the identification of the performative for Derrida lies in the movement away from the truth value of an utterance and its replacement by the value of force, that is, the original production of an effect rather than the transference of a thought-content. The performative thus departs from the traditional idea of communication, that is, and as we will see further below, the transmission of a prior meaning, idea or thought dominated by an orientation towards the truth (Ltd 13–14). In ‘DoI’, Derrida at first stresses the performative nature of the Declaration, despite its pretension, in order to legitimise itself, to be a constative speech act:

One may be tempted to infer from this emphasis of Derrida on the performative nature of the Declaration as well as from his later statement about the people not existing before the Declaration, that he simply wishes to question the legitimacy of this performative, to expose its vicious circularity, or that he wishes to emphasise the fact that a foundational origin (in this case God) is always needed. From the fact that Derrida describes this retroactivity, with reference to Francis Ponge, as ‘fabulous’, one might even be tempted to conclude the converse: that he praises in Arendtian fashion performatives of this nature (Neg 50).10 One could also focus on Derrida’s remark about the obscurity or ‘undecidability between, let us say, a performative structure and a constative structure [which] is required to produce the sought-after effect’ (Neg 49) and conclude that he simply points to a contradiction or instability in the founding of a state.¹¹ Such readings perhaps do not go far enough. When account is taken of other texts of Derrida where he challenges the constative-performative speech-act distinction, it is clear that the point he is making may be somewhat more complex. The Austinian structure analysed above implies that a performative utterance such as the Declaration of Independence brings about an event as a consequence of the conscious and intentional presence of the person(s) who participate(s) in the accomplishment of the performative. Derrida seeks to problematise these notions, that is, the conscious and intentional presence of a subject, which Austin still associates with performative utterances (Ltd 14; Austin 1975: 15), as well as the notion of an ‘event’. Derrida’s problematisation proceeds specifically by way of an analysis of the notion of iterability – that is, the iterable structure of the signs, marks or traces that are employed in such utterances. As we will see, this has important implications for the notions mentioned above, and for constitutional theory in general. The notion of iterability has to be understood with reference to Derrida’s analysis of the metaphysics of presence as well as of the structure of communication, and requires a slight detour here.

As noted in Chapter 1, Western philosophy from Plato to Heidegger is in Derrida’s view characterised by the metaphysics of presence. Metaphysics, as we saw, is based on certain assumptions and prejudices tied to an ideal of presence. This is not so by accident or because of a mistake, but for necessary reasons, which are as we saw ‘quasi-psychoanalytical’¹² in nature. All the metaphysical thinkers through the ages have sought a secure foundation for truth, origin or telos, which effectively coincides with itself, on which their philosophical systems are built, for example Plato’s ideas, Descartes’ ‘thinking I’, Kant’s transcendental subject, Hegel’s absolute spirit and Heidegger’s Being. These philosophical models regard this pure foundation as independent from anything exterior, for example the material element of a sign with which such a truth or origin is posited. For Derrida, metaphysics, which covers the whole of Western philosophy as well as its derivatives, is characterised by its insistence on the existence of the intelligible (the truth, meaning, or the signified) without the need for exterior representation. Since Descartes specifically, it is believed possible for the subject to have a meaning or truth in his mind and only thereafter to express this meaning in words through reliance on the material elements (sounds or marks) of speech and writing. The advance made by Saussure was to posit a sign (signe) consisting of an auditory or acoustic image (signifier, signifiant) and a corresponding concept, ideal object or meaning (signified, signifié). Saussure, through the notion of the sign, thus posits against the metaphysical tradition a signified which is inseparable from a signifier, a two-sided unity in other words. Another important step that Saussure takes, in tension with his construction of the phonic character of the linguistic sign, is to state that ‘[l]inguistic signals are not in essence phonetic. They are not physical in any way. They are constituted solely by differences which distinguish one sound pattern from another’ (de Saussure 2008: 164). Saussure furthermore proceeds by stating that the value of a sign within language is not an inherent characteristic of such sign, but a consequence of the differences between signifiers and between signifieds. It is in other words not substance that makes the functioning of signs possible (as one might think based on Saussure’s construction of the sign), but difference. That this is indeed the case, Saussure, in spite of his preference for speech as the model of language, illustrates with reference to writing which shows (better than speech) the process of differentiation at work. Saussure explains the importance of difference in this respect as follows:

As Derrida points out in ‘Signature, event, context’ (dating from 1971), the traditional approach to communication (which is also relied on in speech-act theory by Austin) is based on a specific idea of how meaning is constituted. In accordance with this model, the signifiers used in writing or speech do not in principle have any effect on the meaning, ideas or thoughts it is supposed to transmit (Ltd 4). These signifiers simply serve as a vehicle, transport or site of passage for meaning, ideas or thoughts. They follow upon a pure presence. Derrida’s reference in ‘DoI’ to Jefferson as merely the ‘secretary’ and ‘draftsman’, as responsible for writing (not in the creative or initiating sense of the term), who cannot sign, as having been delegated ‘the task of drawing up what they [the delegates] knew they wanted to say’ (Neg 48, 52) seems to allude to this traditional understanding of writing.13 Jefferson plays the same subordinate role as Theuth (Thoth), the god of writing, in Plato’s Phaedrus, analysed by Derrida in ‘Plato’s pharmacy’.¹⁴ In this view, ‘[w]riting thus only intervenes at a time when a subject of knowledge already possesses the signifieds, which are then only given to writing on consignment’ (Dis 136).¹⁵ The problem with this model, as Derrida points out, and tying in with our discussion in the previous section, is that it fails to recognise the constitutive role of language, and more specifically that language should be understood in terms of writing, and not speech.¹⁶ The proponents of the traditional model, because of their privileging of speech, as a consequence fail to enquire into the structure of writing. It is important to note that Derrida’s focus here on writing is not due simply to an overturning of the traditional speech–writing hierarchy. As we will see, this privilege accorded to writing is merely a transitional step and is at this point motivated by the fact that writing (as Saussure also realised) displays somewhat better than speech the way in which signifiers operate in the constitution of meaning. Derrida’s contention is that the proponents of the traditional model of communication specifically do not examine in writing the structural absence of the sender from the marks he or she abandons and which continue to produce effects beyond his or her presence. This clearly happens in writing, but it is not restricted to writing (Ltd 5). This ‘absence’ is traditionally understood as a continuous modification and progressive extenuation of presence (Ltd 5–6).

Classical speech-act theory is thus in Derrida’s view based on a theory of communication which fails to recognise the constitutive role of writing and as a result does not investigate or take account of the conditions of possibility of writing itself. Following in the footsteps of the metaphysics of presence, it furthermore privileges speaking or the voice. The latter happens because of the fact that what is said, seemingly does not cease to belong to the speaker, and because the sensible ‘body’ of the signifier seems to disappear in the act of speaking (SP 76–8). According to Derrida, this privilege accorded to speech and the condemnation of writing is directly related to the attempt made by metaphysics to domesticate, dissimulate and annul death (SP 53–5;Dis 123–30).17 There are in other words, as pointed out above and as will be enquired into in more detail below, quasi-psychoanalytical reasons for the prejudice. The seemingly self-present living act of speech appears not to ‘risk death in the body of a signifier that is given over to the world and the visibility of space’ (SP 77–8). Derrida then enquires specifically into the implications of the notion of ‘absence’, which bears a specific meaning here and which is such a clear characteristic of writing, but which does not remain restricted to writing in this sense. It can likewise be said of language in general, of speech, and even of experience in general (Ltd 10). In order for it to function as writing, thus its condition of possibility, one’s written ‘communication’ must remain legible, repeatable, or iterable in the absolute absence and thus in the event of the death of every determined addressee in general (Ltd 7). This structure also applies in so far as the sender or producer of written words is concerned. The disappearance, absence or death of the sender does not prevent in principle the signs or marks from continuing to function, to be legible and to produce effects. The marks ‘signed’ by an author continue to function in his or her radical absence, thus also in the event of his or her death. These marks can furthermore be read without knowing what the author consciously intended to say (Ltd 9). In addition, it is possible for a mark to break with the context of its present inscription (including all the ‘presences’ which organise such inscription, i.e. sender, intention, addressee, referent, meaning) and be inscribed in a different context (Ltd 9, 12). This force of rupture, which structures the mark, is according to Derrida caused by spacing, the separation of the mark from all other elements in the context within which it is inscribed, including possible referents (Ltd 9–10). For Derrida this structure with its specific inclusion of (non-identical) repetition and alterity (iter), which he refers to as ‘iterability’, is not simply a characteristic of writing, but its condition of possibility, its ‘law’ (Ltd 15, 17). He explains this as follows:

[I]f one admits that writing (and the mark in general) must be able to function in the absence of the sender, the receiver, the context of production, etc., that implies that this power, this being able, this possibility is always inscribed, hence necessarily inscribed as possibility in the functioning or the functional structure of the mark.

Could a performative utterance succeed if its formulation did not repeat a ‘coded’ or iterable utterance, or in other words, if the formula I pronounce in order to open a meeting, launch a ship or a marriage were not identifiable as conforming with an iterable model, if it were not then identifiable in some way as a ‘citation’?

It should be clear that what is at stake here is not simply a feature or characteristic of writing, but a condition of possibility in the quasi-structuralist sense referred to earlier. Derrida’s argument in relation to death as a condition of possibility of communication is also underpinned by the Freudian analysis discussed in Chapter 1, which considerably strengthens the argument. To grasp what is at stake in the notion of iterability, it is essential to understand the role of Freud’s thinking in this respect. This quasi-Freudian analysis further undermines the reliance in classical speech-act theory on the conscious ego in identifying a performative utterance, namely the belief that speech acts have a fully conscious structure. This approach is, as we have seen, typical of philosophy since Descartes, philosophy having been constructed on the basis of the full presence of the subject of consciousness to itself. Derrida shows that this is an illusion. This belief ignores what happens unconsciously in speech acts or what Derrida refers to as the ‘structural unconscious’ of speech acts (Ltd 73–7).¹⁸ A certain kind of dislocation from self-present experience always takes place. Self-consciousness is itself structured by iterability. Self-consciousness can in other words only occur, self-consciousness can only arrive at itself, because of what Derrida refers to elsewhere as arche-writing, that is (the desire for) death (OG 60, 68–9). The notion of iterability, understood thus, therefore complicates significantly the traditional notion of communication, as well as the understanding of the Declaration of Independence as a performative speech act. Iterability problematises specifically Austin’s assumption that conscious intention fully determines the force of a performative utterance (Ltd 14). Its force, it now appears, is determined by what Derrida refers to as the ‘essential absence of intending the actuality of utterance … [a] structural unconsciousness … [which] prohibits any saturation of the context’ (Ltd 18). Iterability furthermore shows that what is understood, in the traditional view, to communicate meaning (i.e. language on the model of writing), actually expropriates, dispossesses or dislocates the control supposedly retained by the subject.¹⁹

Performative powerlessness

At stake in Derrida’s analysis in ‘DoI’ is therefore not simply the undecidability between the constative and the performative speech acts of the Declaration.20 Of greater importance is the structure of the performative speech act of the Declaration as always already split. This structure is explored further by Derrida in some of his other texts, confirming what was stated in the introduction of this chapter regarding the overturning of metaphysical oppositions as well as the Freudian aspect of the notion of iterability referred to in the preceding paragraph. In Rogues Derrida for example elaborates further on the ‘notion’ of undecidability of the constative and performative touched on in ‘DoI’, showing clearly that something more is at stake here than an undecidability in the ordinary sense:

Now, just like the constative, it seems to me, the performative cannot avoid neutralizing, indeed annulling, the eventfulness of the event it is supposed to produce. A performative produces an event only by securing for itself, in the first person singular or plural, in the present, and with the guarantee offered by conventions or legitimated fictions, the power that ipseity gives itself to produce the event of which it speaks – the event that it neutralizes forthwith in so far as it appropriates for itself a calculable mastery over it.

(R 152)²¹

Performativity in its classical sense has a necessary relation with legitimised power (‘PP’ 466–7). In ‘Force of law’ Derrida therefore speaks of the ‘time’ of justice in terms of an ‘overflowing of the performative’ (AR 256). As compared to the intentional consciousness of performative speech acts, justice, he contends, entails an irreducible ‘thoughtlessness and unconsciousness’ as well as a to-come which must be rigorously distinguished from the future (AR 255, 256). A few pages later, Derrida mentions in similar fashion a ‘pure performative’ and an ‘absolute performative’, when he compares the revolutionary founding of law with Kafka’s Before the Law (AR 270). In Specters of Marx Derrida refers to an ‘originary performativity’ which does not, as performative speech acts do, conform to existing conventions, but ‘whose force of rupture produces the institution or the constitution’ (SM 36). Alluding to his own ‘Before the law’, he refers to this originary performativity as ‘[v]iolence of the law before the law and before meaning, violence that interrupts time, disarticulates it, dislodges it’ (SM 37). In The Post Card, in analysing Freud’s Beyond the Pleasure Principle, Derrida reads Freud’s speculations in this respect as themselves overflowing the pleasure principle, even though Freud will remain non-committal about such a beyond (PC 301–2). Freud is thus effectively engaging in a ‘perverformative’ which goes beyond his conscious intentions (PC 136).