Force of law

Chapter 6

Force of law

‘Force of law’ is one of Derrida’s most commented-on essays and more than any other, it has been dominated by a liberal reading. This reading will be contested in the present chapter. As indicated in Chapter 1, an appreciation of Derrida’s broader project is essential should one wish to understand what is at stake in his texts on law. This applies a fortiori here. ‘Force of law’ cannot be understood without an appreciation of Derrida’s relation to the thinking of especially Husserl, Heidegger, Freud and Levinas. Chapters 1 to 5 of Law as Absolute Hospitality have attempted to lay the basis, so to speak, for the reading of ‘Force of law’ that will follow. A close relation will appear here between Derrida’s analysis of writing, and specifically the notion of iterability with reference to Husserl, and the origin of law; Derrida’s analysis of the gift which gives Being with reference to Heidegger, and justice; the stricture of différance in the analysis of the Freudian death drive, and justice; Derrida’s analysis of the preconditions for a relation with the other in Levinas, and justice; as well as Foucault’s tracing of the history of madness and Derrida’s deconstructive ‘implosion’ of this concept, and justice. If ‘Force of law’ is understood within this context, as Derrida himself advises (AR 235), a number of important, but difficult issues in this essay can be clarified. These include the relation between justice and singularity, the notion of the event, the notion of undecidability, the idea of the ‘mystical’ foundation of law, as well as the problem of good and evil. It may at first sight appear that this chapter is engaged in a hair-splitting exercise. The distinctions drawn here are however essential to enable us to move away from the dominant liberal reading of ‘Force of law’. The analysis undertaken here will not attempt to provide a close reading and explanation of the whole essay, but will rather focus on specific issues which have thus far plagued commentaries.

Justice, singularity and the event

In line with the predominant liberal reading, in seeking to spell out the implications of ‘Force of law’ (and even preceding that text), great importance has been attached to the notion of singularity in Derrida’s thinking, and especially in this text, by (legal) scholars, both by those sympathetic to and those critical of his thinking. In these readings singularity is often placed in opposition to the generality of law (and of language).1 Such readings tie in closely with and in some instances are informed explicitly by traditional readings of the relation posited by Levinas between the other and the third.² Translated into the context of judicial decision-making, ‘Force of law’ has as a consequence been said to require what is impossible: simultaneous compliance with the universal rule and its pertinent individualised exceptions (Rosenfeld 2005: 818–21). In readings which place greater emphasis on singularity, every party in a court case has been said to be a potential other to the legal system (Thurschwell 1994: 1636–7; Cornell 1992: 143). In the introductory chapter to a recent collection of essays on Derrida and legal philosophy, the editors similarly state that the thesis in ‘Force of law’ is:

that each judgment presents the call of the other; it literally brings the party accused or defended, before the judge. It is the face, the unique and irreducible image of the other, to which the judge must attend and respond. The face has been seen, the voice heard, the pain felt, if pain there be.

(Goodrich et al. 2008: 12)³

In yet other versions, not everyone, but only those who are marginalised or in a position of suffering are viewed as the (singular) other to whom a responsibility is owed (Caputo 1993: 85–92; 1997: 131). In some of these and related approaches, law has, in line with the above readings, been denounced for its generality and (representational) violence and therefore its inability to do justice to the singular other(s).⁴ This denouncement has then in some instances been followed by calls for a model of decision-making which would concern itself with the singular other(s), that is to say the parties in a court case, rather than the legal system (Cornell 1992: 143). In similar vein, ‘Force of law’ has been read as requiring of decision-makers to take personal responsibility for their decisions, rather than hiding behind or seeking to justify their decisions solely with reference to the law (Thurschwell 1994: 1636–9). In some versions the emphasis on singularity (recast as a plurality of interests) has furthermore been accompanied by a call for a reconciliation of the different interests in a legal dispute; and in light of the impossibility thereof, an acknowledgement of sacrifice (van der Walt 2005a: 11–12).5 The brief analysis of ‘Violence and metaphysics’ and of Adieu in Chapter 1, as well as the analysis of the preceding chapters, should already have shown that these claims are all to a greater or lesser extent problematic. They oversimplify and moderate the radical claims made by Derrida in ‘Force of law’. There is simply no room in Derrida’s texts for an interpretation which would oppose the generality of law or of representational systems to the concrete other (person(s)), with a privilege now accorded to the latter. Such a reading would imply that Derrida, like all metaphysicians, privileges presence (the actual parties and their claims) as opposed to representation (law as a representative system).⁶ Such a reading takes no account of Derrida’s broader project of deconstructing the metaphysics of presence. As specifically shown in Chapter 1, Derrida also does not simply adopt the Levinasian approach to the other (ethics) and the third (justice). He radically transforms Levinas’s thinking in this respect. The readings of ‘Force of law’ referred to above fail to see that the notion of justice which Derrida invokes here exceeds Being, rather than being focused directly on (human) beings.⁷ As we saw in Chapter 5, justice, like the perfect gift, ‘is’ Being’s other without belonging to it.⁸

A close scrutiny of ‘Force of law’ itself is nonetheless required to ascertain whether there is authority for the above claims. The passages which seem to come closest to supporting these readings provide the following:

An address is always singular, idiomatic, and justice, as law [droit], seems always to suppose the generality of a rule, a norm or a universal imperative. How to reconcile the act of justice that must always concern singularity, individuals, groups, irreplaceable existences, the other or myself as other,9 in a unique situation, with rule, norm, value, or the imperative of justice that necessarily have a general form, even if this generality prescribes a singular application in each case?

…
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 [droit], 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.

(AR 245)

These passages indeed seem to oppose law’s generality to the singular other. The multiple appearance of the word ‘seems’ in these passage as well as the question mark at the end of the one passage, however indicate that one should tread carefully here. To understand what is involved in this ostensible ‘opposition’, we should moreover not stop reading here. If we accept that this is Derrida’s understanding of justice, how should we then understand later passages which refer to justice as a ‘demand of gift without exchange’ (AR 254), as madness (AR 254), as an experience of absolute alterity (AR 257), to say nothing of the analysis of Benjamin’s Critique in the second part of the essay, more specifically the figure of the general strike, the notions of the ruin and of the spectral nature of law, and divine violence? If the gift is owed to the (singular) other, to which other or others exactly is this gift then owed? Especially towards the end of the second part of ‘Force of law’, it becomes clear that Derrida is, in the above-quoted passages, still slowly, patiently on the way towards the deconstruction of the metaphysical concept of justice. He is raising a difficulty here, asking a question, posing possibilities tied to his opening remark (‘This is for me a duty, I must address myself to you in English’ (AR 231)). He is by no means, in typical metaphysical style, positing a definition of justice in oppositional terms. He is instead alluding here to a Benjaminian and/or Levinasian-type distinction between singularity on the one hand and generality or representation on the other (AR 295; Chapter 1). In so far as Levinas is concerned, Derrida will note a little later, just before elaborating on the different forms of aporia in the relation between justice and law, that he ‘would be tempted, up to a certain point, to bring the concept of justice … closer to Levinas’s’ (AR 250). After pointing to attractive features of Levinas’s discourse on justice and the other, he however stops himself short because of certain ‘other difficult questions’ he has ‘about Levinas’s discourse’ so that he ‘cannot be content to borrow a conceptual trait without risking confusions or analogies’ (AR 250). As appears also from the analysis in Chapter 1, although there are clear correspondences between the thinking of Derrida and Levinas, the differences are considerable too, and Derrida cannot be said to simply take over Levinas’s thinking, specifically not in so far as the relation to the other and the third, which is alluded to in the above passages, is concerned.¹⁰

In so far as Benjamin is concerned, in Critique of Violence he in fact attempts to ‘apply’ his earlier theorisation of language to law (AR 259; Staikou 2008: 270). The distinction between singularity and generality/representation accordingly corresponds with Benjamin’s view that the originary destination of language was appellation, nomination, the giving or the appeal or presence of the name, that is that language is originally (as expression) not a means to an end (AR 259, 297).¹¹ Benjamin’s thinking about singularity, as Derrida points out, clearly privileges presence, as opposed to representation (AR 259–60). At the same time, Benjamin acknowledges that the language of communication and representation cannot be clearly distinguished from that of expression (AR 297; Staikou 2008: 269). Benjamin likewise acknowledges in applying his theory of language to law, as we will see below, that the (pure) founding of law cannot be clearly distinguished from its conservation. That is because the founding violence finds itself repeated and ‘represented’ in every act of conservation (AR 260). Pointing to this kind of ‘contamination’ between presence and representation has been part of Derrida’s deconstructive ‘strategy’ since his first texts on Husserl’s phenomenological reflections on language.¹² The strategy employed here involves pointing to a paradox. In the case of the deconstruction of the hierarchical opposition between speech and writing, Derrida likewise points to a paradox: writing is devalued by metaphysics, but speech, which is privileged, is shown to include the same features as writing.¹³ This strategy does not however come to a rest at this point, but proceeds further towards what he in earlier texts referred to as the emergence of a new ‘concept’ (Pos 42).14 In ‘Force of law’, the paradox opens the way towards an aporia in a similar way in which in Specters of Marx, the contradictions in liberal-capitalism (the disjointedness in time) opens the possibility of justice (Chapter 7). The above quoted passages in ‘Force of law’ cannot therefore be read or invoked as the ‘final outcome’ of a strategy of deconstruction, but instead bears a resemblance to what in his earlier texts were the first ‘phases’ of such a strategy.¹⁵ Derrida is thus contending in these passages of ‘Force of law’ that there is a seeming tension between the requirement of justice of relating to someone as other in a purely idiomatic way (for example through the proper name), and the other requirement of justice – generality or universality as characteristic of law and language. As in other contexts (for example, the event, the date, the invention, a performative speech act), Derrida is ultimately concerned here with showing that there can be no pure event, pure idiom, pure invention, pure performative, as there is always already, from the first moment, representation, repetition, mechanisation and technology.¹⁶ This idea of repetition at the origin is of course expressed by the Derridean notion of ‘iterability’ (AR 272, 277–8).¹⁷

This seemingly paradoxical situation, as noted above, requires another strategic ‘phase’, namely thinking of justice in terms of an aporia, that is, ‘something that does not allow passage … a nonpath’ (AR 244).¹⁸ With reference to the section on Freud in Chapter 1, we can say that the ‘concept’ of justice, after its deconstruction, is no longer a concept in the traditional sense. It now incorporates the contradictory operation of ‘desire’, and as a result exceeds economy.¹⁹ Derrida speaks in this regard of justice in the sense of ‘a responsibility without limits, and so necessarily excessive, incalculable, before memory’, an experience of inadequation or an incalculable disproportion, as a gift without exchange, and with reference to Levinas, as absolute dissymmetry (AR 247–51). The discussion in Chapters 1 to 5 already made clear that the formulation of this new ‘concept’ of justice cannot be viewed in isolation from Derrida’s broader project – that is, the deconstruction of the metaphysics of presence. The readings referred to above, take little account of this broader project or of the context of Derrida’s remarks on singularity/generality. It is at this stage necessary to determine the implications for singularity of this re-inscription. What Derrida’s analysis of law and justice shows (and the abovequoted passage already indicate this) is that the technicality or generality of law is not a negative accident, something that happens by mistake to law. Instead, it is a necessary part of its structure. This structure, as we will again see below with reference to law-founding and law-preserving violence, furthermore points to that which makes law possible – (unconditional) justice, or as Derrida also refers to it: the law (la loi) of law (le droit), alluding therewith to the analysis of Kafka’s Before the Law (AR 233; Chapter 3). When we take account of some of Derrida’s other texts on the concept or notion of singularity we can see that singularity is, similar to law, but almost imperceptibly, deconstructed in ‘Force of law’, in a movement away from presence towards a thinking of unconditional, incommensurable or immeasurable singularity.²⁰ The relation between justice/the unconditional and singularity for example comes to the fore in Derrida’s discussion of unlimited hospitality, which he refers to as the ‘unique and singular and absolutely only great Law of hospitality’ requiring an unconditional welcome (OH 81).²¹ This thinking of singularity is of course still related to law, but requires a new relation between itself, justice and law. This does not consist in opposing a specific party or even all the parties in a court case to the law, but in a relation – a differantial relation (or aporia) we could say – beyond this opposition. Derrida makes this clear also when he discusses the three examples of the impossible experience of aporia in ‘Force of law’ and when he says that a judge cannot, if she wants to do justice, simply apply a rule to a case; there has to be a suspension or destruction of law, and a reinvention in each case. This is because ‘[e]ach case is other, each decision is different and requires an absolutely unique interpretation which no existing, coded rule can or ought to guarantee absolutely’ (AR 251). There is no opposition at stake here between the singular case or singular others on the one hand, and the generality of law on the other. The tension, differantial relation or aporia lies between incalculable justice or singularity ‘reconceptualised’ as a general economy on the one hand and law as a restricted economy on the other.

As appears inter alia from Derrida’s analysis of Benjamin’s Critique of Violence, every act of conservation (of law) and therefore every act of interpretation evokes the possibility of a general strike. In other words, justice, which as we saw, entails incalculable disproportion and a loss or an expropriation of the proper, lies at the ‘origin’ of every interpretation, which also has to take account of the law (AR 252). This understanding of justice corresponds closely with the analysis in Chapter 1 of the ‘stricture’ of différance as involving both a disseminating unbinding and a conserving binding (AR 234–5). Derrida’s analysis by way of Kant as well as of Pascal of the inherent force of law (AR 233, 238–9)²² likewise ties in closely with the notion of a differantial relation of forces. At stake in the relation between justice in itself (if it exists) and justice as law, is on the one hand an absolute astricture, a powerless, impotent force (AR 238) or the greatest/an essential weakness (AR 235; Neg 226), namely justice as the perfect gift, beyond reason and law; and on the other, a binding, stricture or mastery of forces.²³ The forces at stake here are like the German word Gewalt, neither legal nor illegal, or both at the same time, in the same way in which the foundation of a state (and ultimately every self-conserving act of law) goes beyond this opposition (AR 234).²⁴

It may still be contended that there are many passages in ‘Force of law’ where Derrida refers to the other and that these passages indicate the importance of understanding justice in terms of singularity.²⁵ There can be little doubt as to the importance of singularity within this context. The question is how to understand these references to the other. In discussing the second aporia, Derrida for example notes that the infinite idea of justice is ‘irreducible, irreducible because owed to the other, owed to the other, before any contract, because it has come, it is a coming [parce qu’elle est venue], the coming of the other as always other singularity’ (AR 254). This passage, and others that may be referred to, should similarly not be read out of context, and especially in light of what was said in Chapter 1 about the relation between Derrida and Levinas as well as the role of language and conceptuality in Derrida’s thinking. This passage in ‘Force of law’, it is important to note, is immediately followed in the same paragraph by a reflection on justice in terms of the gift without exchange and the ‘desire’ for justice. At stake is thus no longer the traditional concept of justice, but a concept which has been ‘auto-deconstructed’ (AR 362–4), and by way of which it becomes possible to encounter the other (Naas 2003: 93–114). Derrida is thus not positing here that a direct relation to the other as other is possible in the context of law; he is speaking of the other in another ‘sense’, of absolute alterity. The passage in question where the coming of the other is invoked can be further clarified when we take account of Derrida’s reflections elsewhere on the concept of the event, which is often used to describe the coming of the other (FWT 58). When Derrida speaks of the third aporia (urgency) in ‘Force of law’, he for example invokes the notion of justice that remains to come. He continues as follows:

‘Perhaps’ – one must [il faut] always say perhaps for justice. There is an avenir for justice and there is no justice except to the degree that some event is possible which, as event, exceeds calculation, rules, programs, anticipations and so forth. Justice, as the experience of absolute alterity, is unpresentable, but it is the chance of the event and the condition of history.

(AR 257)

Derrida’s other texts on the concept of the event show that the event has a similar ‘structure’ as was described above in respect of singularity (FWT 58). The incalculability of justice (as well as of other concepts such as friendship, democracy and the gift) is what allows for a new thinking of the event, and of the future. It is in other words only when we are ‘prepared’ by way of a deconstructed concept of justice, hospitality, friendship, democracy and the gift, to encounter that which comes with a certain defenselessness or exposure, without mastery and without sovereignty, without horizon of expectation, that the future has a chance.26 This is to be compared with a situation where the future is approached from the perspective of determinate concepts (also of justice) which have been constructed from within a thinking which privileges presence and which through its totalising horizon closes one off from that which comes. Responsibility, Derrida says elsewhere, requires that the other (which is not, or at least not without qualification, to be understood as another person) take the decision in me.²⁷ Derrida’s thinking about the event moreover and very importantly goes beyond humanism as it involves an openness to whatever or whoever comes. As should be clear, this openness and exposure still involves singularity, but without being tied to presence.²⁸

Undecidability

It should be evident that the above structure does not leave us without any criterion to choose between the interests of the different parties to a dispute, and thus only with the task of a reconciliation of interests, or a personal, ethical responsibility for the outcome. It also does not mean that a court should simply always decide in favour of those who can be regarded as ‘suffering others’. Much more is clearly required if a judge is to be responsible in this hyperbolic sense. In elaborating on the second aporia in ‘Force of law’, Derrida likewise makes clear that ‘undecidability’ does not, as is sometimes contended²⁹ mean relativism. Undecidability is in other words not merely about an oscillation or tension between two different approaches to a matter, two different (calculable) interpretations of the same rule or between the universality of law and the singularity of a unique situation. The ‘undecidable’ rather corresponds with the notion of justice as elaborated on above:

Undecidable – this is the experience of that which, though foreign and heterogeneous to the order of the calculable and the rule, must [doit] nonetheless – it is of duty [devoir] that one must speak – deliver itself over to the impossible decision30 while taking account of law and rules.

(AR 252)

Undecidability thus entails going beyond calculation as well as beyond a simple opposition between universality and singularity. Both of these ways of understanding undecidability would imply retaining the metaphysical notion of subjectivity (both in an individual and in a collective sense), which Derrida clearly dislocates in ‘Force of law’, noting that ‘a subject can never decide anything’ (AR 253). As Derrida also points out in Politics of Friendship, the traditional, metaphysical concept of decision entails the decision of a sovereign subject, autonomous, fully conscious, identical to himself and unaffected by the decision. This also happens in the decisionism of Carl Schmitt (PF 68). Such a view of the decision, neutralises the event, and has the consequence that nothing actually happens. For a decision to bring about an event (which is not foreseeable, programmable, calculated), Derrida argues, it has to be passive and unconscious (PF 68 –9). Tying the decision to his thinking on hospitality, Derrida furthermore notes that this involves the ‘recalling’ of ‘an old forgotten decision’ (PF 68)³¹ and continues as follows: ‘The passive decision, condition of the event, is always in me, structurally, another event, a rending decision as the decision of the other. Of the absolute other in me, the other as the absolute that decides on me in me’ (PF 68). It should be clear that Derrida’s relation to Freud’s unconscious as explored in Chapter 1 is at stake here, rather than a duty of the decision-maker to decide in favour of (one of) the parties to a dispute. As Derrida also indicates elsewhere, there is no identity (whether of the self or the nation) which is only afterwards confronted by the arrival of the other. There is no such thing as a subject with the ability (and free choice whether or not) to welcome the other. Identity is always already dissolved in and through the welcome, which does not entail a return to the self, but instead the violation and expropriation of the self (AR 361). At stake is thus a rethinking of the concept of subjectivity as well as the idea of the other as an actual person with determinable attributes. As pointed out earlier, Levinas in Totality and Infinity refers to the subject as host, and in Otherwise than Being as hostage. Derrida analyses this strange paradox as follows (A 111):