[D]econstruction cannot be transgression of the Law. Deconstruction is the Law. It’s an affirmation, and an affirmation is on the side of the Law.
Derrida ‘WB’ 149
‘Deconstruction is justice’, Derrida states famously in ‘Force of law: the “mystical foundation of authority”’. ‘Deconstruction is the Law’, Derrida says in the above epigraph, dating from 1984. Is this not a clear instance of Derrida (again) contradicting himself? Did he not in ‘Force of law’ strain to distinguish between justice and law? Yet here, in the context of a discussion of ‘Before the law’, he seems to associate deconstruction with law. In his early texts on law, as we have often been told in commentaries, Derrida points to the absence of a legitimate foundation for law. The attempt to find such a foundation, he allegedly says there, leads to infinite regress. In ‘Force of law’ Derrida is said to repeat this claim and then in addition to argue that justice is about a concern for the singular individuals before the law, as opposed to law’s generality. Read thus, there can indeed be said to be a belated turn to ethics in ‘Force of law’. The above epigraph would then serve as further evidence of such a ‘turn’. In line with this reading, Derrida in 1989 wished no longer to simply associate deconstruction with the absence of foundations, but also with singularity. Such a reading, which is incidentally not uncommon in the legal context, misses everything that is at stake in Derrida’s thinking. As Derrida himself notes in ‘Force of law’ (AR 235), the themes of justice, ethics and politics were at the forefront of many of his earlier texts, such as the texts devoted to Levinas, including ‘Violence and metaphysics’ (1964), as well as Glas (1974), ‘To speculate–on Freud’ (1980), ‘Before the law’ (1982), ‘Declarations of Independence’ (1976), ‘The laws of reflection: Nelson Mandela, in admiration’ (1986), etc. He furthermore notes that ‘[i]t goes without saying that discourses on double affirmation, the gift beyond exchange and distribution, the undecidable, the incommensurable or the incalculable, on singularity, difference and heterogeneity are also, through and through, at least oblique discourses on justice’ (AR 235). This means that all his texts can in a way be said to relate to justice. Little attempt has been made thus far to enquire into this assertion by Derrida, and to establish what it means for an understanding of the concept of law. Law as Absolute Hospitality seeks to do so, through a slow, detailed and contextual reading of a number of Derrida’s texts, including some of those mentioned above.1 It will seek to chart a new direction in the reception of Derrida in the legal context and, at least to some extent, beyond that context as well. What will come to the fore is a very different understanding of the concept of law than has dominated legal discourse up until now. The main focus of this introductory chapter will be an outline of Derrida’s broader ‘project’. Without a grasp of this project, it is simply impossible to contemplate the transposition of his thinking to the legal context. Derrida’s relation to Heidegger, Husserl, Levinas and Freud will, because of their significant influence on his project, play an important role throughout this book and will be briefly considered here within the context of Derrida’s project. Before coming to that, we will first analyse some of the most influential readings of Derrida in the legal context thus far, which Law as Absolute Hospitality will seek to distinguish itself from. This analysis will at the same time introduce certain aspects of Derrida’s thinking. To conclude the chapter, an explanation will be given of the title of the book and a brief analysis will be undertaken of the sequence and content of Chapters 2 to 8.
Dominant readings of Derrida in the legal context
Since Derrida appeared on the legal radar in the 1980s, his texts have been discussed and referred to in numerous legal works. Such references have varied from the sympathetic to the downright hostile. Almost without exception, the hostile readings are characterised by a superficial reading of Derrida. Detailed attention will not be given to these readings here, although Law as Absolute Hospitality as a whole seeks precisely to address the many misconceptions that exist in relation to Derrida’s thinking. The sympathetic readings unfortunately sometimes fare little better. As noted above, they are in many instances similarly informed by a lack of appreciation or disregard of Derrida’s broader project. In what follows, a number of influential readings of Derrida in the legal context will be briefly engaged with. The scholars to be discussed are faithful to Derrida’s thinking in varying degrees. The engagement with the readings of these scholars will set the scene for a different reading of Derrida in the legal context, which will seek to follow him as closely as possible.2
The methodical reading
In the early reception of Derrida by Critical Legal Studies (CLS) in the United States, Derrida’s deconstruction of hierarchical oppositions, such as that between speech and writing, was employed to ‘deconstruct’ hierarchical oppositions to be found in law.3 One of the problems that plagued the CLS reception of Derrida was the descendance of CLS from legal realism. Legal realism, as is well known, promoted a view of law freed from all transcendentalism. Derrida’s challenge to transcendentalism made him appear as a kindred spirit, whereas the position was much more complex. In the early reception of Derrida his analysis of language was consequently relied on to show that some legal concepts and doctrines are usually or traditionally privileged over others (in US law), for no definitive reason, and that legal concepts and doctrines are thus ultimately constructs which have no basis in reality. In the case of CLS this ‘deconstruction’ was motivated by left political thinking. From this early reception of Derrida it was however easy to derive the conclusion that deconstruction is simply a technique of argumentation which could be relied on by both the political left and the right. Deconstruction in some hands thus soon became a politically neutral method which could be used to overturn the preferences shown in any argument or rule. In one highly influential version of this reading,4 Derrida’s deconstruction of the speech–writing opposition was understood as entailing the ‘temporary’ reversal of this hierarchy, by viewing speech as a kind of writing. This new privilege could however, in turn be reversed. What Derrida ultimately shows, it was contended, is that neither of the two terms can be privileged, as they are mutually dependent on each other. This same ‘method’ can, so the argument goes, be applied in the legal field to any kind of hierarchy that exists, for example in relation to rules informed by a view on human nature: that is, whether human nature is characterised by self-interest vis-à-vis the belief that it is characterised by altruism and community. Neither of these two ways of viewing human nature can however serve as a foundation, as they are both different from and mutually dependent on each other. Deconstruction in this way, it was argued, provides the possibility of emancipation from dominant ways of thinking – that is, the belief that there is one foundational, complete and self-sufficient principle.
This reading of Derrida, as well as other similar readings, tends to retain a distinction between language on the one hand and (social) reality on the other. Derrida’s famous statement that ‘[t]here is nothing outside of the text’ (OG 158) is as a result understood to mean that language only imperfectly represents reality. In this reading of Derrida, truth thus remains fully intact, with all attempts to grasp it through language being incomplete. Derrida’s understanding of the notion of ‘text’ is however very different from the way it is presented in this reading. Because of the importance of this issue for the rest of our analysis, it will be useful to now already give attention thereto. Different from the way in which Balkin and others understand it, ‘text’ for Derrida already includes a description and a grasping of ‘things’ or ‘reality’. Hegel was the first to propagate this view regarding the relation between thinking and reality, noting in relation to Kant’s noumenon or ‘thing in itself’ that there is no beyond to the phenomenon (Hyppolite 1974: 125). Things are simply the way they appear to us. For Heidegger (1962: 246–52), similarly, in so far as man’s relation to the world is concerned, Dasein is already thrown into the world and ‘is’ thus Being-in-the-world. This means that there is no world or reality outside of Dasein the existence of which has to be proven, as for example Descartes attempted or Kant’s ‘thing in itself’ to which one has no access. Both these ‘metaphysical’ approaches assume a subject that is world-less and that seeks to assure itself of a world (Heidegger 1962: 250). Language for Derrida similarly does not stand vis-à-vis ‘reality’, but is already in its construction of ‘reality’ a ‘text’, which is why he states that ‘there is nothing outside of the text’ or that ‘life is a text’ (‘FT’ 27). He has explained his notion of ‘text’ as follows:
What I call ‘text’ implies all the structures called ‘real,’ ‘economic,’ ‘historical,’ socio-institutional, in short: all possible referents. Another way of recalling once again that ‘there is nothing outside the text.’ That does not mean that all referents are suspended, denied, or enclosed in a book, as people have claimed, or have been naïve enough to believe and to have accused me of believing. But it does mean that every referent, all reality has the structure of a differential trace, and that one cannot refer to this ‘real’ except in an interpretive experience.
The ‘text’, or what Derrida refers to elsewhere as ‘the text in general’ (Pos 44, 59, 60) furthermore does not have an inside that can be clearly distinguished from an outside, in the same way in which life cannot simply be opposed to death, as is assumed by metaphysics. As appears from the reference to the ‘differential trace’ in the above quotation, and following from the analysis of Derrida’s relation to Freud,5 the text is structured by a ‘desire’ for death (Pos 88) which is what motivates every deconstruction. Although it is therefore not incorrect to point to Derrida’s adherence to the view that language has no basis in reality, it is premature to stop at this point, and to believe that this is all that Derrida asserts. The view that language has no basis in ‘reality’ is to be found also in ‘structuralist’ thinking such as with Saussure, a view which Derrida further develops. Derrida more particularly seeks to analyse with reference to Freud’s notion of drives and of the unconscious, the ‘laws’ which determine constructions of ‘reality’.
The postmodern reading
A kind of reading of Derrida which ties in closely with the above methodical reading is to the effect that Derrida exposes all views or constructions of reality as subjective, which would have the consequence that he himself cannot complain about ‘incorrect’ readings of his own texts. In my own interaction with ‘postmodern’ legal scholars I am likewise often confronted with the argument that Derrida’s approach emphasises the instability of written texts, and that his own texts speak of undecidability, indeterminacy and dissemination. Multiple readings of Derrida’s texts would therefore be possible and no objective criteria would be available to judge one reading as ‘better’ or ‘more accurate’ than another.6 Viewed as such, the present book would simply provide a partial reading of Derrida, a ‘Freudian’ or ‘Heideggerian’ reading perhaps. Just as valid would be a ‘Nietzschean’, ‘Levinasian’ or ‘Foucauldian’ reading of Derrida. The relativist or ‘postmodern’ reception of Derrida in the legal context has made debate about the content of Derrida’s texts or his relation with other thinkers more or less impossible, as all interpretations of these texts are viewed as ‘subjective’.
Derrida has frequently disassociated himself from postmodernism.7 In ‘No (point of) madness – maintaining architecture’ Derrida (Psy II 87–8) notes that the idea of the postmodern ‘still surrender[s] to the historicist compulsion’. He continues as follows in his evaluation of this categorisation of time periods:
It is as if one wished yet again to order a linear succession, to periodize, to distinguish between the before and the after, to limit the risks of reversibility or repetition, transformation or permutation: a progressivist ideology.
(Psy II 88)
Derrida has responded similarly to attempts to associate deconstruction with modernity, noting that as soon as:
we give it the label of ‘modernity’, we inscribe it in a certain historical system of evolution and progress (a notion derived from Enlightenment rationalism) which tends to blind us to the fact that what confronts us today is also something ancient and hidden in history. I believe that what ‘happens’ in our contemporary world and strikes us as particularly new has in fact an essential connection with something extremely old which has been covered over (archi-dissimulé).
These comments, where the repetitive nature of Freud’s death drive feature prominently (‘something ancient and hidden in history’ and ‘something extremely old’) again show the importance of an understanding of Derrida’s broader project when one seeks to comprehend his relation to law. The association of deconstruction with relativism has in similar fashion been clearly refuted by Derrida. In another interview he expresses himself as follows in this respect:
[R]elativism is a doctrine which has its own history in which there are only points of view with no absolute necessity, or no references to absolutes. That is the opposite of what I have to say. Relativism is, in classical philosophy, a way of referring to the absolute and denying it; it states that there are only cultures and that there is no pure science or truth. I have never said such a thing.
Derrida’s problematising of truth does not therefore mean the total rejection of truth, nor does it simply lead to the belief that there are many truths, but instead to an investigation into that from which truth derives (Ltd 150).9 In so far as the charge of relativism refers to interpretation as a subjective exercise, it can clearly be seen from the above quotation that Derrida does not subscribe to such an approach.10 As a reading of any of his texts will furthermore show, he always respected the basic principles of reading, even though he at the same time sought to go beyond these principles. This subversion of the traditional rules of reading however happened in a very rigorous manner, as the rest of this book will seek to show. The notions of truth, correctness and accuracy are thus not abandoned by Derrida, but re-inscribed (Ltd 150). They therefore retain their value and can in a way be used, also against Law as Absolute Hospitality, to contest the accuracy of the readings argued for here. Even if Derrida has distanced himself from postmodernism and relativism, there are of course still academics who insist on reading him in this way as they themselves believe that interpretation is something purely subjective (independent of what Derrida might have to say on the subject). Derrida, and Heidegger before him, however clearly and convincingly showed that such an approach is founded in the metaphysics of presence, more specifically the illusion of the self-presence of the subject.11 Freud hammered the final nail into the coffin, in respect of both reading and writing.
What is therefore required in determining Derrida’s relation to law is a careful and as rigorous as possible a reading of his texts, in context, as Derrida often insisted should happen.12 In so far as Law as Absolute Hospitality can, for attempting such a reading, be accused of attempting to ‘police’ the reading of Derrida, this ‘policing’ takes place with the aim of fending off a metaphysical reading of Derrida; and metaphysics, it needs to be noted, always relies on a police force itself for its own protection, and a much more powerful one at that.13 It is for similar reasons in this book not about claiming any proprietary right over Derrida, but precisely about insisting on the force of expropriation in his texts. It is also not about claiming to be a (or ‘the only’) legitimate heir, but precisely to point to and affirm that which is ‘illegitimate’ in Derrida’s texts14 and which often escapes scrutiny. This said, are things not perhaps different in the legal field? Do rigorous readings of philosophers in the legal field really matter? Legal scholars have after all through the ages interpreted philosophers in a variety of ways to make their thinking applicable and useful to law. This has not always taken place with the greatest degree of rigour, but law has nonetheless often benefited immensely from such adaptations.15 Even though there may on the face of it be merit in this argument, it does appear that something different is at stake in the case of Derrida’s thinking. To give a metaphysical interpretation to Derrida, as often happens in the legal context, can no doubt have some benefit for law, and ultimately for the community served by that law. This is however precisely the problem with the argument. Derrida’s attempt to exceed metaphysics concerns itself not in the first place with the strengthening of law and of the community, but exactly with the suspension of law, and tied to that, with the auto-immunity (or desire for death) of the community served by such law. Interpreting Derrida in a metaphysical manner can thus be done, and it may indeed benefit law and the community it serves, but it is perhaps the ultimate form of injustice towards a thinker like Derrida to interpret him in this way. If more attention is given to the nuances of Derrida’s thinking than has happened thus far, a conception of law can be developed which can (to some extent) exceed metaphysics with its circular economy. Anyone who has a concern for justice and ethical responsibility has little choice but to take up the radical challenge posed by Derrida’s texts.
The ethical–liberal reading
A more sophisticated and less instrumentalised interpretation of Derrida has made it difficult to distinguish between deconstruction and political liberalism. This was astutely observed by Frank Michelman (2002: 246–62) in comparing his own (republican) liberalism with one of these versions of deconstruction. In this version, judges are in light of Derrida’s analysis of justice called upon to recognise the plurality of interests (the political); to re-evaluate in each new case the sacrifices deemed just(ified) in earlier (similar) cases, and ultimately to acknowledge (and mourn) the destruction of plurality or the unjust sacrifice decided upon.16 In this version, we can say that justice, which is understood as the (full) recognition of the plurality of interests, is tragically impossible. The only thing which (this version of) deconstruction seems to do different from political liberalism, Michelman noted, is to view as unjust the ‘sacrifice’ in pursuit of a social goal that goes along with politico-legal decision-making. Liberalism on the other hand accepts this as an inevitable feature of decision-making and moreover does not refrain from regarding a legal decision as ‘just’ when it is adequately justified. This kind of ethical–liberal version of deconstruction has been adopted by a number of (legal) commentators, although they diverge at certain points. Levinas is often invoked as additional authority in arriving at this kind of reading of Derrida.17 This is often tied to a similar kind of argument as we find in the methodical reading earlier referred to, that is, that representational systems such as a legal system cannot adequately represent reality, here individual interests.
The argument in another influential ethical–liberal version of deconstruction which adopts these ideas goes briefly thus: Levinas points to the claim which others make on me. This claim goes beyond the rights and duties allocated by means of the legal system. Derrida adopts this position of Levinas. The responsibility of a judge consequently is towards the parties to a dispute rather than the legal system. This (seeming) insistence of deconstruction on the singular, it is believed, has the potential of leading to greater transformation (Cornell 1992). Others, adopting a similar reading of Derrida, have however criticised this ‘deconstructive ethics of difference’ for making impossible the evaluation of competing claims. Derrida’s condemnation of religious fundamentalism in an interview after the events of September 11, 2001, is as a result viewed as contradictory, as an ‘ethics of difference’ after all calls for the equal recognition of all others (Rosenfeld 2008). The contention of Law as Absolute Hospitality is that these ethical–liberal readings each in their own way entail an unjustified and unfortunate domestication of Derrida’s thinking.18 Derrida’s concern with the other has much more radical consequences than is typically portrayed in these readings.19 That is the case because deconstruction concerns itself with the impossible, not simply with what is impossible. Furthermore, although it can indeed not be disputed that Levinas plays an important role in Derrida’s thinking, there are also significant divergences in their thinking.20 In this respect one needs to carefully consider the implications of Derrida’s thinking on ‘the other’ for subjectivity. In some of these liberal readings of deconstruction, the subject tends to be left in place even when something of the ‘ethical’ dimensions of Derrida’s thinking is grasped. Derrida’s response to a question from Vattimo about the self making room for the other in A Taste for the Secret, shows that much more is at stake here than a subject with an ‘ethical responsibility towards the other’:
‘Leaving room for the other’ does not mean ‘I have to make room for the other’. The other is in me before me: the ego (even the collective ego) implies alterity as its own condition. There is no ‘I’ that ethically makes room for the other, but rather an ‘I’ that is structured by the alterity within it, an ‘I’ that is itself in a state of self-deconstruction, of dislocation. This is why I hesitated just now to use the word ‘ethical’. This gesture is the possibility of the ethical but is not simply ethical, which is why I speak of the messianic: the other is there in any case, it will arrive if it wants, but before me, before I could have foreseen it.
Which means that I am not proprietor of my ‘I’, I am not proprietor of the place open to hospitality. Whoever gives hospitality ought to know that he is not even proprietor of what he would appear to give.
The cosmopolitan reading
The last reading to be discussed here can be termed a cosmopolitan or utopian understanding of deconstruction. This refers to the important and unique contribution of Douzinas, one of the first legal scholars to have commented on Derrida’s texts. Douzinas’s reading is based on a fusion of sorts of the insights of, among others, Derrida, Levinas, Lacan and Foucault. In his earlier texts, Douzinas, in collaboration with others, adopted a Levinasian approach in setting out the relation between the self (or the law) and the singular other, which he viewed as similar to the relation posited by Derrida in ‘Force of law’ between (universal) law and (unique, singular) justice (Douzinas and Warrington 1994: 231–2; Douzinas 2000: 348–51).21 This was combined with a Lacanian understanding of desire, that is, a desire for the (m)other, also referred to as jouissance or the death drive, the latter being understood by Douzinas (1995: 1326–7) in an essentially Oedipal sense. The face-to-face relation with the other, according to Douzinas, in other words at the same time evokes unconscious desire. In a recent text, Human Rights and Empire, Douzinas combines the above model with Derrida’s notion of a ‘democracy to come’ in developing a political philosophy of cosmopolitanism. Douzinas takes account of Derrida’s relation to Marx, and in doing so, admirably goes beyond the ethical–liberal readings analysed briefly above. It exposes and resists, like Derrida (as well as Foucault and others), the (still) totalitarian character of liberal democracies. To his further credit, and here he indeed seems very close to Derrida, Douzinas (2007: 294) subscribes to a notion of cosmos which ‘uproots every city, disturbs every filiation, contests all sovereignty and hegemony’, extending ‘beyond nations and states, beyond the nation-state’. At stake here is what Douzinas (at 293) refers to as a ‘cosmopolitanism to come’, which he compares favourably with Derrida’s notion of a new International in Specters of Marx.22 From Douzinas’s subsequent contention, it however becomes clear that Derrida is invoked to support a thinking of cosmopolitanism in oppositional terms. Similar to CLS in the United States, the paradoxes detected by Douzinas, do not become aporias in the sense that they do in Derrida.23 Douzinas’s contention (at 295), invoking Derrida’s Rogues, that ‘this attack on sovereignty does not take place in the name of non-sovereignty but in that of another sovereign, the individual’ therefore raises certain questions. The reading given to Rogues clearly corresponds with the above Lacanian–Levinasian model. The (metaphysical) opposition between the particular and the universal – that is, between presence and representation, as a result – however remains. This reading does not quite do justice to what Derrida is saying in Rogues, when read in context. In line with the exposition of Derrida’s project in this chapter, Derrida seeks to show here how the concept of sovereignty is in the process of self-destruction, in a more accelerated form today than in earlier times. One of the ways in which this happens is (indeed) by way of international human rights. Derrida is not however arguing here for the opposition of one form of sovereignty by another. This is made clear in Rogues itself, in the texts where he problematises the foundation of (human) rights in the notion of sovereign subjectivity (AR 246–7, PTT 132–3), as well as in ‘Violence and metaphysics’ where he challenges Levinas’s analysis of the relation with the other. 24 The analysis in Rogues is thus about the auto-immunity or ‘implosion’ of the concept of sovereignty itself. This is one of the ways in which the (metaphysical) opposition between the singular and the universal, as well as other metaphysical oppositions is transcended. Whereas for Douzinas (2007: 295) the principle of sovereignty thus ultimately remains intact (playing itself out in oppositional form),25 Derrida seeks to affirm auto-immunity as the condition of possibility, as well as the displacement of sovereignty, with implications for both the state/law and the individual.
As we will see in more detail in Chapter 3, serious difficulties furthermore present themselves when one attempts to construct a philosophical model based on a belief in the universality of the Oedipus complex, as Douzinas does. The adoption of Lacan’s notion of the Real, understood in an Oedipal sense (Douzinas 2007: 46–7), for instance makes it impossible for this ‘political philosophy’ to escape from what characterises metaphysics par excellence, that is, circular exchange.26 Because of its Levinasian heritage, and especially because it does not fully take on board Derrida’s reading of and problematising of Levinas’s thinking, the positing of an ‘ontology’ of alterity or of plural singularities’, as Douzinas acknowledges himself, remains within metaphysics (Douzinas 2000: 349–51; 2007: 296).27 This retention of a discourse within metaphysics will almost inevitably lead to difficulties in founding a radical left legal politics in the long run. This difficulty also stems from the reading given to Rogues, where the (sovereign) self, the I as (lacking) subject, even though it becomes somewhat destabilised or ‘shifting’, ultimately remains in place in Douzinas’s model.28 To give only one example, the Levinasian attachment to (only) the human face, almost inevitably leads to an alignment with the traditional man–animal distinction,29 with all its accompanying cruelties.30 The notion of absolute hospitality, which as Derrida (CF 16–17) points out, relates to ‘a manner of being there, the manner in which we relate to ourselves and to others’, appears to have a much more ‘radical’ political potential, at least in this respect.31 The ‘Great Law of Hospitality’, as Derrida notes in speaking of the medieval tradition, entails:
An unconditional Law, both singular and universal, which ordered that the borders be open to each and every one, to every other, to all who might come, without question or without their even having to identify who they are or whence they came.
Although Douzinas’s approach can in many respects be commended, especially in its taking on board of certain psychoanalytical insights, it is necessary to go beyond the Oedipus complex, in teasing out the implications of Derrida’s thinking for law.
Derrida and the metaphysics of presence
Although Derrida’s ‘project’ has been analysed many times before, this needs to be returned to here. What appears to have happened in the legal context is that legal scholars have in their understanding of Derrida generally been restricted to the insights offered by commentaries which do not in all respects appreciate the nature of Derrida’s broader project. Where legal scholars have relied on Derrida’s texts themselves, insufficient attention has often been given to detail. Law as Absolute Hospitality will seek to steer clear of these pitfalls by not only enquiring into what Derrida says, but also into why he says it – that is, by enquiring into his broader project. Without an appreciation of Derrida’s ‘project’, notions which he often refers to in his texts such as undecidability, singularity, the other, aporia, the impossible, difference, deference, différance, the text, iterability, the future, the ‘to come’, responsibility, as well as Derrida’s relation to conceptuality in general, can easily be misunderstood. An understanding of Derrida’s broader project is also essential to be able to appreciate his relation with earlier thinkers and it is moreover only then that a meaningful debate can take place with contemporary philosophers. When speaking of Derrida’s project, the reference is of course to his deconstruction of the metaphysics of presence. Metaphysics (from meta = after, beyond; and physis = nature)32 of course concerns itself with the founding principles of existence or being, for example Plato’s Ideas. In brief, Derrida’s contention is that all Western philosophy (even when, as in for example empiricism and logical positivism, metaphysics is seemingly rejected), is based on a desire for ‘presence’ as its founding principle. Because of their (implicit) reliance on philosophy, that is, metaphysics, the language (specifically Western languages) used in academic discourse and everyday thinking are based on the same principle (Pos 19). In his texts Derrida shows the problematic nature of this founding principle in its many guises and at the same time seeks a passage beyond it. One of the manifestations of metaphysics is the setting up of hierarchical oppositions, such as that between good–evil, pure–impure, proper–improper, meaning–nonsense, essential–accidental, original–imitation, normal–abnormal, speech–writing, nature–culture, literal–metaphorical and reason–madness, where the first term serves as foundation or as a form of ‘presence’, with the second term representing a ‘fall’ from presence which is to be understood in terms of the first term.
Plato’s Ideas is one of the ways in which this oppositional structure has been grounded in Western philosophy.33 In considering Derrida’s relation to law – our specific aim here – a basic understanding of this project is all the more essential because of law’s enclosure within metaphysics through its reliance on the concepts and typical thought-processes of metaphysics (Pos 13).34 It is then also specifically by considering Derrida’s relation to the thinking of Husserl, Heidegger, Freud and Levinas that we can come to a better understanding of this project.35 As the relation between the thinking of Heidegger and Derrida is analysed in detail in Chapters 4 and 7, the discussion of Heidegger here will be relatively brief, in comparison with the others. As will become clear from the discussion that follows, Derrida’s project can be summed up by saying that what is ultimately at stake is the relation between life and death.36
In Derrida’s first texts the ‘project’ of deconstructing the metaphysics of presence proceeds through an analysis of the texts of Husserl (PG, HOG, SP). In the legal context, Derrida’s relation to Husserl is seldom explored. In the texts of Derrida referred to, he shows the problematic nature of certain assumptions of Husserl, whose phenomenological thinking for Derrida represents the high point of metaphysics (OG 49), more specifically the belief in the ‘presence of sense to a full and primordial intuition’ (SP 5) – that is, the possibility of meaning, present to consciousness without the need for mediation through indicative signs or signifiers. Husserl’s texts nonetheless point to a way beyond metaphysics by showing that presence is always invaded by nonpresence. What Derrida will ultimately seek to show, is the interrelationship between life and death, which is illustrated par excellence by writing. Two of Derrida’s texts on Husserl will be briefly analysed here so as to introduce Derrida’s project.37
In Derrida’s ‘Introduction’ to Husserl’s Origin of Geometry he explores the implications for truth and meaning of Husserl’s analysis of the necessarily historical dimension of ideas, that is, their need to be expressed in language, and specifically in writing. Whereas Husserl believes that ideality remains unaffected by its expression in writing, Derrida shows by analysing the structure of writing that this cannot be the case. The reason for expressing an idea for the first time in writing, as Derrida points out, is the insufficiency of the speaking subject in so far as the absolute grounding of such ideal objectivity is concerned (HOG 87–9). What is necessary for the ideal objectivity of meaning to be constituted is the possibility of it being repeated or reactivated and shared by others, even after the death of the original inventor and his initial audience. Ideas expressed in graphic signs as a necessary requirement for their constitution, as a consequence become public property, with the unavoidable risk of losing their (original) meaning, of becoming empty repetition, of the death of sense (meaninglessness), in other words. The necessary expression of truth in language furthermore goes along with the irreducible, radical equivocity of language which always again needs to be rendered univocal by the author as well as the reader (HOG 100–4). Its expression in graphic signs moreover carries the risk that the sign may be destroyed (HOG 87–94). Truth and ideal objectivity are thus made possible by what at the same time places it at risk of absolute destruction. Death seems in a strange way to be lodged ‘within’ the concept itself, one could say (HOG 88). To summarise: the graphic sign within which an idea finds the possibility of its indefinite repetition as well as its possible disappearance is what in advance and in the first place makes meaning and truth possible. As we will see, this has important implications for the concepts employed in law, including the very concept of law itself.
The (metaphysical) idea of the possibility of meaning fully present to consciousness, which Husserl himself complicates through his analysis of time as well as of language, is explored by Derrida in Speech and Phenomena (1967). This analysis, as Derrida will also point out in a later text, ultimately tells us something about the structure of experience in general (Ltd 10). In so far as language is concerned, Derrida shows that Husserl, and in this he (Husserl) follows in the footsteps of all his metaphysical predecessors, shows a preference for the voice, as simulating the conservation of presence, over and above the graphic sign (SP 15–16). This appears more specifically in the distinction which Husserl draws between signs functioning as expression (Ausdruck) and as indication (Anzeichen), which he (Husserl) nevertheless himself later complicates by admitting that in all instances of communication, signs fulfil an indicative function. The problem for Husserl is that the relation of indicative signs with meaning is via a detour, whereas expressive signs involve no such mediation (Marrati 2005: 65). This prejudice in favour of the voice, Derrida contends, has to do with the attempt of metaphysics to seek its foundation in the living present (SP 5), and thereby to deny the necessary relation to death (SP 10, 54). This relation is expressed in the graphic sign (SP 40, 54), which explains the prejudice against writing. Derrida, tying in with his analysis in the ‘Introduction’, but here more critical of Husserl, will thus in Speech and Phenomena seek to show:
an irreducible nonpresence as having a constituting value, and with it a nonlife, a nonpresence or nonself–belonging of the living present, an ineradicable nonprimordiality.
(SP 5– 6)
In his reading of Husserl, Derrida shows that the self can relate to itself only via language understood in terms of writing (that is, by way of indicative, as compared to expressive, signs), so that truth and meaning can never be fully present in consciousness (for example in interior monologue, as Husserl contends), but always require mediation through signifiers, marks or traces (indicative signs). No examples can thus strictly speaking be given of signs fulfilling an expressive function. The indiscernibility of consciousness and language, Derrida notes, introduces ‘nonpresence and difference (mediation, signs, referral back, etc.) in the heart of self-presence’ (SP 15). Similar to what we saw in the ‘Introduction’ to the Origin of Geometry, Derrida furthermore shows that meaning is not the result of an intentional act. Instead, the (radical) absence of the speaker/writer, as well as of the object described, shows itself to be a structural condition for meaning (SP 92–7). This even applies in saying ‘I’ or ‘I am’ in representing oneself to oneself in so-called solitary mental life, which in Husserl’s phenomenology functions as full presence and origin (SP 95):
the signifying function of the I does not depend on the life of the speaking subject … [W]hether or not life as self-presence accompanies the uttering of the I, is quite indifferent with regard to the functioning of meaning. My death is structurally necessary to the pronouncing of the I.
In so far as time is concerned, Derrida challenges Husserl’s contention of a present moment where meaning can be fully present to consciousness. Husserl specifically contends that this is the case in interior monologue where there is no need for signifiers (signs functioning as indication) as these mental acts ‘are “lived by us in the same instant” (im selben Augenblick)’ (SP 59). At stake here, Derrida notes, is a perception of the present ‘as punctuality of the instant’ (SP 61). This privilege accorded to the present (living) now, Derrida adds, ‘defines the very element of philosophical thought, it is evidence itself, conscious thought itself, it governs every possible concept of truth and sense’ (SP 62). Husserl (1999: 186–221) in The Phenomenology of Internal Time-Consciousness seems to adopt a somewhat different view, noting that every present moment or ‘now’ is essentially linked with the retention of the past and an anticipation or protention of the future. In terms of the latter view there can thus be no present moment which is completely isolated from the past and the future.39 Husserl nonetheless even here can be said to rely on the now as source point (SP 61–2; OG 67). This view of time and its relation to consciousness can be challenged with reference to, and by way of the further development of, Freud’s notion of the unconscious (SP 63).40 Husserl’s original analysis of time nevertheless allows us to no longer think of the present as a simple self-identity and thus to challenge his (Husserl’s) idea of ‘the same instant’ as well as his argument against the need for signs in the self-relation (SP 64–6). Although, as Derrida acknowledges, there is clearly a difference between the representation of signs and the retention of the past (in thinking about temporality), both involve repetition, not from a position founded on presence, but the repetition and return of what Derrida refers to here as a ‘primordial’ trace (SP 67).41 The structure of writing, which Derrida discloses here, that is, ‘the operation of differing which at one and the same time both fissures and retards presence’, including its effaceability as a trace, thus in a strange way points to an ‘originary’ movement through which presence (as well as its metaphysical opposite, absence) appears. Derrida also refers to this ‘movement’ as différance or the ‘differential trace’. This movement is a necessary one as full presence would entail both being absolutely alive and being absolutely dead (SP 102).42 The nonpresence which was shown to be lodged within presence, that is, death, in other words produces the desire for presence in a return movement. This desire for presence, or what can also be termed the understanding of Being43 as presence, has characterised metaphysics from the start, as we will see below in our discussion of Heidegger. The reasons for this movement, which clearly shows the contamination rather than the separation of life and death, will become clear in the discussion of Heidegger, and perhaps even more so, in the discussion of Freud.
The implications of the above analysis for law will likewise become clear later on, although we can now already briefly mention some of these, in light of the structure of writing as analysed above, which will, in his later work, partly inform Derrida’s hyper-ethics or hyper-politics. It is precisely the life–death structure first explored in the readings of Husserl, which will determine Derrida’s ‘ethico-political’ explorations. Before we come to that, it is necessary to point out that the assumptions of metaphysics necessarily determine the way in which concepts are viewed, that is, in terms of an ideal essence. Berns (1998: 60) summarises the metaphysical idea of conceptuality as follows:
The aim of knowledge is the concept. A concept is an idealisation in which the object itself is present to consciousness. Such presence of the object in its singularity requires that rigorous and exact distinctions are made. The telos of the concept is to be distinguished in order to bring things to presence in their ideality. Vague concepts, concepts which flow over into other concepts or which entail empirical gradations, are not concepts. It is this or that but never (a little) this and (a little) that. Idealisations are thus always identities. Therefore a concept is also in principle repeatable in the strict sense of the word [as we see clearly in Husserl’s analysis].44