Derrida’s territorial knowledge of justice
Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or decomposition of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick’s articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida’s theory of laws as universals and with Derrida’s theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official’s decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call ‘individuality’.
Derrida’s theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida’s theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law’s legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signifier or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida’s theory of law.
I claim that this rupture permeates Derrida’s writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick’s exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida’s legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida’s legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge.
The Vacuous Foundation of Law
Permit me to turn to Fitzpatrick’s work as my entry point into Derrida’s theory of law. When Fitzpatrick seeks the foundation of law in various contexts, including judgments in Canada and Australia, access to justice, and post-colonial thought, he invariably exposes the foundation as nothingness. A foundation must radically differ from the ordinary forms as laws. If the foundation were an ordinary analysable unit or form, there would be no finality in the trace of one unit to another in search of a foundation. So, the foundation, being knowable and yet external to laws as forms, is a mere form without particular content. As Fitzpatrick puts it, the foundation is ‘empty’, ‘vacuous’, ‘nothingness’, ‘beleaguered’ (2002: 242; 2005: 9–13; 2008a). Relying heavily upon Derrida’s ‘Force of law’ (1990), Fitzpatrick emphasizes that the foundation has a mystical character, in that language (the signifier/signified relation) cannot access it. This mysticism colours the foundation despite the rationalist pretensions of the professional knowers and despite the rhetoric of the rule of law.
I have described the foundation as invisible because of its inaccessibility to legal language.1 This inacessibility of the foundation has led, ironically, to its construction by legal officials and philosophers. We officials and pedagogues have done so by decomposing concepts into their features or elements on faith that by doing so we would access laws and justice. We have ironically done so in the name of the foundation. Because of this self- generating character of the system of forms and concepts, and because of the need for an externality to the analysis of forms, the ultimate form is not decomposable into further units. The state fulfils this quest for a finality to the analysis of forms.
Because of the emptiness of the ultimate form of the system of legal units, legal philosophers end up concealing the vacuous foundation of law as they analyse theories about the discrete analysable units. Fitzpatrick offers several contexts where such concealment permeates judicial reasoning. In the first context he quotes Kant’s oft-forgotten assertion (oft- forgotten even in contemporary readings about ethics and political philosophy) that it is treasonous to question the foundation of the modern legal order (Fitzpatrick 2003b: 436, quoting Kant 1797/1996: 95; see also Fitzpatrick 2006b: 167, 175, 183). In a second context he recalls how the universal truth embedded in law was relied upon by European states in the process of colonizing much of the globe (see, for example, Fitzpatrick 2002: 242). In a third context the impact of the vacuity of the foundation of the system of legal units upon Anglo-American analytical jurisprudence is exposed. Law has been associated with an autonomous system of rules or a coherent narrative structure, both of which are said to depart from the behaviour and the beliefs that a founding rule or a background structure of conceptions represent. Once we are left with the autonomous system of rules or principles, there remains a forgotten ‘sub-standard, abnormal case containing within it the threat that the legal system will dissolve’ (Hart 1994: 123; Hart’s original 1961 edition quoted in Fitzpatrick 1992: 210). In a fourth context, to be discussed later in the chapter as ‘being with’, the foundation of law is sometimes associated with social bonding. This concern with social bonding as the legitimizing source of the system of rules is also forgotten once officials begin to analyse the chains of rules. Finally, Fitzpatrick turns to the impact of the vacuity of the foundation to international law. Given the vacuity of the state’s legitimacy and given that the state is the primary legal person of international law, the legal official needs to address the mystical foundation of the state’s domestic legal order before that official can sustain the existence of international law (Fitzpatrick 2003b).
Against the above contexts, law is self-posited and self-determined (Fitzpatrick 2004: 122). The structure of concepts dissolves into the power of state officials. The rule of law becomes a mere rhetorical device to sustain the power of lawyers and judges. The critical aspect of this is that because the concepts themselves are not accessible – always being deferred by the trace of one sign, which represents a signified concept to another representing sign – the power of officials is entangled with their knowledge of legal language. Since professional law schools introduce and protect that language, professional legal education is instrumental in sustaining the power relations of society (see further Conklin 1993, 1998). And legal education does so in the name of the law and access to justice. The consequence is that the foundation is actually constructed by officials as they search for more rigorous lower-levelled forms or concepts in the metaphysical objectivity of higher-ordered forms. The foundation is effectively constructed inside, not outside, the structure of forms as officials aspire to access legal objectivity.
This is the point where Fitzpatrick’s work impacts upon the analytic methodology of contemporary jurisprudence, legal teaching materials, and scholarship about the law. What so many contemporary jurisprudes describe as the ‘existence conditions’ of the legal order – the social facts, the law beyond law, the state of nature, the General Will, the People, the Grundnorm – is a myth. In contemporary analytic parlance, concepts are valid if they are reasons for action by officials of the state. The gist of Fitzpatrick’s originality might be framed in the language of analytical jurisprudence as follows. The ‘existence conditions’ of a legal order can be put to the side as not binding reasons for action. Fitzpatrick insists that the philosopher just cannot separate the particular rules of a legal order from the existence conditions that the self-generating and self-defining Recht excludes. Further, when one traces a reason for action to another reason for action, one ultimately recognizes that the existence conditions of the legal order are nested in the power relations of state officials. The consequence is that legal forms, so much a part of contemporary legal education in professional law schools, ultimately depend upon the self-defining law itself. Again, the ultimate foundation of law is what Fitzpatrick describes as ‘vacuous’, ‘empty’, and a ‘layered irony’. The self-defining system of rules and institutions is thereby violently imposed upon inhabitants in the name of the rule of law and objectivity. Fitzpatrick draws from Žižek’s reading of Kant to the effect that the origins of the legitimate order are ‘lawless origins’ that are cancelled by the historico-empirical circumstances that generate the legal order (Žižek 1991: 205). An explanation of the origins of the legal order ‘a priori puts us outside’. The myth and mysticism of the origins remain a secret so long as contemporary legal theorists, law teachers, and other officials colour their analyses as the rule of law and objectivity. The secrecy is reinforced by disparaging rhetoric directed towards anyone, whether inside or outside the chains of analysed forms, who attempts to pierce the veil of the invisible foundation. Social bonding among the non-expert knowers of legal forms remains an outside possibility. The very existence of conditions of law – the ‘social facts’, ‘the People’, and the like – only depends upon the officials of the territorial state and the power relations internal to the state.
Contemporary Anglo-American legal philosophy, so much a part of and dependent upon the dominance of a state-centred legal order, misses law’s inward self-determined and metaphysical construction of the foundation. The quest for the origin of laws in an external source, such as the social facts or a perfect coherent narrative, sustains legal philosophy in an air of naivety and denial. As Hart (1994) described from time to time, he was ‘haunted’ by the prospect that the existence conditions of the legal order were nested in a social bonding that the analysis of concepts could not access. Such conditions, he admitted, were unrecognized and unrecognizable because they were exterior to the self-conscious writing of the officials of the state. They were ‘unstated’, prior to the writing of officials. And yet, even that prospect of unstated unrecognized social behaviour remained excluded from legal philosophy. What mattered was power:
[O]nly officials might accept and use the system’s criteria of validity. The society in which this was so might be deplorably sheeplike; the sheep might end in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.
(Hart 1994: 117)
But an inquiry beyond the positing and analysis of the elements of a form or concept of recognition or an intellectually coherent narrative in an effort to decompose concepts as reasons for action would amount to ‘naïve’ beliefs and ‘emotion rather than truth’, as Matthew Kramer puts it, ‘folk theories’, ‘half-baked’, ‘intuition-mongering’, and ‘psychological facts’, as Brian Leiter expresses it, or, as Hart asserts, a ‘nightmare’ that incidentally ‘haunts’ legal philosophy.2
The consequence of the vacuity of the foundation, then, is that power determines law’s own legitimacy. Thrasymachus has won out over Socrates’ inward voice of inquiry. Fitzpatrick (2006a) examines the ultimate power relations at the foundation of the modern legal order in several contexts. The most obvious one today is the imperial quest of the United States. Another is the failure of international lawyers to address the sovereign’s mystical foundation, a mysticism that legitimizes the primary legal persons of international law (Fitzpatrick 2003b). Perhaps the most consistent context of his exposure of the vacuous foundation is his examination of the power of European states as they imposed their concepts upon Australian, African, and North American indigenous inhabitants (Fitzpatrick 1990, 1998, 2001b, 2002, 2008a; Mostert and Fitzpatrick 2004). The signs (or words if we use the latter metaphorically) represent such forms, and such sign/signified relations constitute a language. The language is violent. Raw power and violence, not the rule of law, explain the imposition of forms upon indigenous social life precisely because the origin of the rule of law rests in vacuity. For Fitzpatrick, Derrida’s theory of law offers an important explanation as to why this is so.
Fitzpatrick’s argument goes like this. When X resists Y, Y’s integrity is elevated at the very moment that Y is diminished and parasitic upon X (2008b: xi). In order to maintain its determinacy, law, as form, must respond to, as well as resist, the diminished and parasitic exteriority of the structure of forms. The latter privileging of the supplemental alien-ness poses an ironic twist. For, although law must resist the individual event, law must also respond to the latter in order for law to be determinate. As a consequence, law, to be law, requires a relation between the indeterminate form on the one hand and the determinate particularity on the other. The one cannot exist without the other, and yet the identity of each must remain autonomous of the other. The indeterminacy of pre-legality is ‘always’ on the other side of the divide. And yet, law needs content – its forms being universal – and this, in turn, requires that law respond to the particularities of the indeterminate pre-legality. Pre-legality is indeterminate because legal language, which represents analysed forms, cannot access the non-cognitive determinate experiences. In order to be determinate, law must ‘extend beyond, exceed’, or respond to what is determinate in a judicial or legislative decision for the time being (ibid.: 440). This responsive relation would lack the character of the ‘violent word’ or language which is otherwise superimposed upon the concrete, context- specific experiences. The universal forms are superimposed upon the stranger as the voice of such experiences (Fitzpatrick 2001d: 145–6).
Derrida’s Sense of Law
Now I shall take up the relation of universal forms to the individual presence of a particular experiential event, an event that Derrida claims is inaccessible to the forms. This response of the forms to the experienced event, described by Derrida as a decision, faces a formidable problem, namely that so long as we presuppose what I shall call a territorial sense of knowledge, instead of an experiential knowledge, there is an untranslatable rupture between our legal knowledge of universals on the one hand and the immediacy or presence of the identity of utterer and decision on the other. This rupture between territorial knowledge and the outside and pre-existing experiential world raises this prospect: law’s response to its antithetical other does not and cannot bring closure to the determinacy of law. This is so because law’s response occurs through the configurations of signs with which officials and philosophers are familiar precisely because they are situated in the legal space on the territorial side of the rupture. The best that we can do is picture (or imagine) the identity of the stranger on the other side of the territorial boundary, which defines the outer limit of our knowledge of universals. The best that we can do is translate such an imagined identity into our own familiar language. Derrida especially emphasizes this inevitable need to translate the voice of the stranger into our own language. Again, Derrida understands language as the configuration of the interrelations of signifiers (see Derrida 1985). The consequence is that there is always an extra-ordinary or inaccessible remainder to legal language. Even the rupture between universals and the individuality of a decision cannot be reconciled within the paradigm of legal knowledge, which Derrida takes for granted. Let us gain a closer understanding of Derrida’s theory of law in order to appreciate the presupposed rupture that contains law. First, what does Derrida signify by ‘law’? Second, what does Derrida signify by ‘individuality’ or ‘singularity’?
Law as Form
Derrida takes for granted that law is composed of a system of content- independent forms. It is important in this respect that although Derrida did write about Hegel’s logic, Derrida takes Kant for his understanding of the identity of law.3 In this respect he is especially influenced by Kant’s preoccupation with moral law as a conditional or categorical imperative or form (Derrida 1987: 32; 1990: 245, 275; 1992: 191). Conditional and the categorical imperatives intellectually transcend experience. Imperatives are universals because they are purged of social-cultural content. This is so because difference arises from the differentiation of the boundary of one form from the boundary of another. This preoccupation with the boundary of forms is reinforced by our own association of laws with doctrines, rules, principles, tests, and other forms. The consequence is that the interrelation of forms defers to a sameness. A form is important because of its utilitarian relation to another form. A form is stuck in acts of intellectualization. The differences are homogeneous.
Put another way, what might be considered ‘difference’ is a difference among signified forms in a given disciplinary language. Hegel describes such differentiation as Verstand.4 Although one might literally translate Ver-stand as ‘understanding’, Verstand misses the embodiment of meaning. Gadamer (as did Husserl and Merleau-Ponty) associates understanding with such meaning. Objects can be meant as well as perceived. Meant objects draw from the experiential body so that understanding is lived. Understanding thereby defers to the prejudicia or prejudgements and forestructures of the experiential body. Verstand lacks such an inquiry into such prejudgements and forestructures of meaning because Verstand lifts Gadamer’s ‘understanding’ above lived experiences by distinguishing between the boundaries of signified (and empty) forms. Since law, for Derrida, is composed of signified forms, the justice of legal space – the justice being concrete or immediate (or present) acts of meaning – is inaccessible to such forms. Legal space is highly reified vis-à-vis the ipseity of decisions – that is, reified as configurations of signifiers. Signifiers can be intellectually used by officials without ever having to address the experiential content of forms. So, too, the intellectual differentiations of forms miss the immersion of the officials and of the forms in the prejudicia of a shared ethos.5
The consequence of this sense of a system of laws (lois) as forms is that the forms are content independent. If the forms represent social relations as they are or as they ought to be, this is a mere happenstance. And yet the forms are said to be universally applied to all social relationships that fall inside the boundary of the forms. Inhabitants, as subjects, fall ‘under’ and ‘before’ the forms. They are ‘equal’ under and before the boundary within which the familiar knowledge of forms exists. Because the forms are content independent, the forms possess some surpassing reductive ability to contain responsiveness, to ensure that ‘the aleatory margin . . . remains homogenous with calculation, within the order of the calculable’ (Derrida 1989: 55, quoted in Fitzpatrick 2005: 4, emphasis added). The forms, as universals, assimilate all threatening forms ‘out there’ beyond their boundaries.
All language is thereby written in the sense of being signifying relations – that is, in the sense that signifiers represent signified forms in terms of other signifiers without ever accessing the forms (see further Conklin 1996). Language, in this context, is thereby public rather than privately thought out inside one’s intentional consciousness. Derrida takes Edmund Husserl’s theory of meaning to represent a theory of language as private. Husserl (2001: esp. 560–2) claims that a subject may be present or immediate with intended or meant objects. Derrida claims that such an immediacy occurs through speech. Speech itself, however, is nested in the configurations of signifiers, according to Derrida. For Derrida, concepts just do not exist independent of chains of signifiers – that is, of writing. One signifier defers to another signifier, not to the signified forms (see especially Derrida 1974). Indeed, we can never access universals except as signifiers. We are entrapped in the prison-house of language or, as Derrida put it, of differance. Joining this early focus of signification to his later works on law, universals (lois) are the never-ending configurations of signifiers (or names). Signifiers re-present universals (which we associate with doctrines and rules). We believe that laws are forms but we can never access the forms through language – at least, as Derrida understands language as configurations of signifiers. The inaccessibility of the forms signified by configurations of signifiers leads us to conclude, according to Derrida, that law (droit) can never be ‘presently [and] fully just’ (1990: 253, as quoted in Fitzpatrick 2005: 4). Presence, after all, returns us to Husserl’s or embodied experiential language, something which is not possible, Derrida had claimed in his earlier works. As Fitzpatrick emphasizes, the system of forms (droit), to be universal (i.e. as forms), ‘cannot be contained in its determinate presence’ (ibid.: 6).
The consequence for Derrida’s own understanding of laws with universal forms is that the forms are nested inside chains of signifiers, not in the constitution of meaning by bodily experiences. Power relations, as a result, determine who is recognized as a legal person. The ‘private domain’ of the foreigner is recognized as a legal person by the act of officials ‘choosing, electing, filtering, selecting their invitees, visitors, or guests, those to whom they [officials of the state] decide to grant asylum, the right of visiting, or hospitality’ (Derrida and Dufourmantelle 2000: 55). As Fitzpatrick quotes affirmatively from Derrida, law is ‘a system of regulated and coded prescriptions’ (Derrida 1990: 250, quoted in Fitzpatrick 2005: 4). And again, law is understood as an ‘existing, coded rule’ that ‘can . . . guarantee absolutely’ the ultimate decision by a judge or other official (Derrida 1990: 251, quoted in Fitzpatrick 2005: 4). The boundaries of forms are ‘coded’ by configurations of signifiers. So, legal analysis, in its effort to access legal objectivity, differentiates one signifier in terms of another signifier. The problem is that the discrete laws are never determinate in human experience, at least as long as we assume that laws are content-independent forms. As Derrida (1973: 129–60) emphasizes, the signifier represents a universal (i.e. a form or concept), which in turn is always deferred from being accessed. So, the indeterminacy of forms arises from the never-ending trace of one signifier to another. The re-reading of signifiers never accesses the signified forms nor the individual context-specific experiences of meaning-constituting subjects.
This deferring of an immediacy or presence (or embodiment of meaning) to doctrines, rules, tests, and other forms is especially apparent when one re-reads Derrida’s reading of Kafka’s parable of ‘the man from the country’. A castle represents or signifies the Law as a system of forms. The castle does have a door to the exteriority. A sentry, representing the legal official, stands on guard at the door. The guard gazes outward towards the man from the country. The man from the country waits and waits in order to access the Castle through the door. If officials deeper in the Castle decided to admit the man from the country, such a decision would be determinate. Until that moment, the Castle merely represents universals about rights and duties. Because the universals make claims without ever being opened for the man to enter into them, the Law remains indeterminate. The lived experiences of the man are excluded from the Law. The social relations that the man has experienced prior to his lifetime waiting before the Castle represents how the excluded man and his excluded lived experiences were ‘before’ the Law. They are phenomenologically and analytically before the law. The justice with which we legal officials are familiar – the justice of legal forms – is misdirected because justice rests in the experiential world that Kafka so powerfully describes of K. The universals, which the Castle represents, are inaccessible from the experiential world because an untranslatable rupture is believed to separate the language of the man from the country from the language of the guards of the Castle of Law. The language of the Castle cannot be just:
To address oneself to the other in the language of the other is both the condition of all possible justice, it seems, but, in all rigor, it appears not only impossible (since I cannot speak the language of the other except to the extent that I appropriate it and assimilate it according to the law [loi] of an implicit third) but even excluded by justice as law, inasmuch as justice as law seems to imply an element of universality; the appeal to a third party who suspends the unilaterality or singularity of the idioms.
(Derrida 1990: 245)
Since justice, according to Derrida, dwells in what Husserl describes as lived or experiential meaning, and because such meaning is excluded from writing, justice remains untranslated and untranslatable by the Castle’s officials. This is the secret of the Law. This secret is ‘an extremely painful thing’ (Kafka 1988: 437, as quoted in Fitzpatrick 2005: 13).
Fitzpatrick exemplifies this painful consequence of law with reference to the civilizing mission of the colonialist on the one hand and the indigenous experiences of the aboriginal peoples in North America and Australia on the other. So long as we remain in the illusion that the system (droit) of laws (lois