Madness and the law

Chapter 4



Madness and the law



Not only the reason of millennia – the madness of millennia too breaks out in us. It is dangerous to be an heir.


Nietzsche Thus Spoke Zarathustra 102


The law is mad. The law is mad, is madness; but madness is not the predicate of law. There is no madness without the law; madness cannot be conceived before its relation to law. This is the law, the law is madness.


Derrida ‘The law of genre’ (AL 251)


In ‘Force of law’ Derrida describes justice as ‘without reason and without theoretical rationality, in the sense of regulating mastery’. He then notes that ‘one can recognize in it [i.e. in justice], even accuse in it a madness’, and adds that ‘deconstruction is mad about and from such justice, mad about and from this desire for justice’ (AR 254). Derrida furthermore refers to Kierkegaard who describes the instant of decision as madness (AR 255). The relation posited here between justice and madness stems at least partly from Derrida’s earlier debate with Foucault on the question of madness.1 In Derrida’s 1963 lecture ‘Cogito and the history of madness’ (WD 31–63), which likewise includes a reference to the above-mentioned passage from Kierkegaard, he provides a detailed reading of Foucault’s History of Madness, published in 1961.2 Foucault responded in 1972 in two texts (Foucault 2006: 550–90). The debate with Foucault is continued posthumously in Derrida’s 1991 lecture, ‘“To do justice to Freud”: the history of madness in the age of psychoanalysis’ which specifically traces the intersection between the thinking of Foucault and Freud (Res 70–118). Although the debate between Derrida and Foucault has been the subject of much academic discussion,3 the relation between the Foucault–Derrida debate and law has not as yet been fully explored.4 This chapter will seek to do so through a reading of Derrida which will specifically concern itself with the ‘site’ from which Foucault launches his radical critique of the practices of modernity which we tend to view as ‘normal’.5 As will be seen, this does not lead to the rejection of Foucault’s project, but its further radicalisation.6 The chapter will start with a reading of ‘Cogito and the history of madness’. This will be followed by a reading of Derrida’s ‘To do justice to Freud’, which enquires into Foucault’s thinking on power and pleasure. The chapter will conclude by pointing to the implications of Derrida’s reading of Foucault for law.


Cogito and the history of madness


In his reading of Foucault’s History of Madness, Derrida focuses primarily on the Preface of the History as well as Foucault’s reading of Descartes’ Meditations (1641) in chapter II of part one of the History. Only a small part of Foucault’s History of Madness concerns itself explicitly with an interpretation of Descartes’ Meditations, but according to Derrida the whole of Foucault’s project is tied to this interpretation.7 Despite appearances to the contrary, Derrida does not seek to undermine Foucault’s project or place it in question, but rather to sharpen its edges ‘philosophically’.8 In analysing these two texts, and before engaging in a fairly detailed analysis of Derrida’s reading of Descartes’ Meditations, we will seek answers to the following questions:


•   Can a history of madness in fact be written?


•   From which ‘site’ does Foucault write his history of madness?


•   When did the ‘internment’ of madness start?


•   With which concept of madness does Foucault work?


The impossibility of a history of madness


Central to Derrida’s concerns is Foucault’s claim to write the archaeology of the silence imposed on madness through the division between madness and reason. In other words, Foucault attempts to write a history of madness itself, by letting madness itself speak (WD 33–4; Foucault 2006: xxviii, xxxii). Stated yet differently, Foucault does not want to write this history from within the language of reason, of madness interned, but of madness before its capture by knowledge. This history, as Derrida (WD 34) puts it, purports to be a history of untamed madness before being caught by classical reason, whilst using the language that was used to capture madness. The language of reason is however itself the language of order and of the system of objectivity which necessarily captures or objectifies madness. This raises the question whether a ‘history’ of silence can in fact be written, as all history, per definition, is of rationality and meaning in general (WD 308 fn 4). In his later discussion of Descartes’ Meditations, Derrida (WD 53–4) phrases this principle thus:


[I]f discourse and philosophical communication (that is, language itself) are to have an intelligible meaning, that is to say, if they are to conform to their essence and vocation as discourse, they must simultaneously in fact and in principle escape madness … By its essence the sentence is normal.9


The question this raises is whether one can, by elaborating on the ways in which psychiatry has excluded reason and by suspending the language of psychiatry (as Foucault does), return to innocence and end one’s own complicity in the exclusion of madness by the rational and political order (WD 35; Flynn 1989: 203). The psychiatrist is after all only a delegate of this order, one of many. As Derrida points out, all European languages are implicit in the adventure of Western reason as well as in the delegations which have led to the capture of reason. It therefore seems to be impossible to put on trial this history (of the objectification of madness) as Foucault seeks to do, as the proceedings as well as the verdict are, due simply to their articulation, bound to repeat the crime. Even an archaeology of silence amounts to a logic, an organised language, an order and a work. Foucault’s archaeology of silence therefore effectively amounts to a repetition of the act of excluding and objectifying madness, also at the moment when this exclusion is denounced (WD 35, 53–4). Derrida nevertheless reads Foucault as being aware of this, at least on a certain level, as Foucault at certain points acknowledges the impossibility of writing this archaeology of silence (WD 36–7). Foucault (2006: xxxii) acknowledges, for example, the necessity and impossibility of having to write his discourse without the support of the syntax of reason. Derrida comments that Foucault could perhaps be said to perform this feat (that is, his archaeology of silence) through his practice rather than his formulation. In other words, because the silence cannot be spoken without at the same time re-captivating it within logos – the language of objectification – Foucault gives expression to it through his pathos, by means of his new and radical silent praise of folly. Behind Foucault’s explicit project, another project can in other words be said to take place in silence.10 This raises the question of conditions of possibility. What makes possible Foucault’s feat? How does it happen that Foucault can at the point in time that he writes his History of Madness, understand and enunciate this breaking point in the classical age (spanning from approximately 1650 to 1800) between a determined reason and a determined madness (to be distinguished from reason and madness in general)? Foucault does not explicitly reflect on this in his History. Derrida’s contention is that this could happen only because of a certain liberation of or dislocation within madness (WD 38). Implicit in this statement is the importance of Freud’s thinking which Foucault at times denies (Res 73).11 Derrida enquires into the relation between Foucault and Freud in his ‘To do justice to Freud’ which will be discussed below.


Behind Foucault’s projected archaeology of silence, another project is therefore engaged in. To understand what is at stake here, we need to enquire into the way in which these two projects proceed. Because the silence of madness is not an original silence but one which (according to Foucault) was imposed at a certain point in history, Foucault feels the need to find the origin of this imposition. He has to find the origin of the separation between reason and madness (unreason) in contrast with their free circulation and exchange up to that point (WD 38). Foucault (2006: xxxiii) refers to this origin as ‘the decision’. Derrida believes that a slight change in vocabulary is required here: the split between reason and madness should rather be referred to as a ‘dissension’, in order to point to the self-dividing action at stake here, namely what is made exterior, is the interior (WD 38–9). Madness is thus not exterior to philosophy, but at a certain ‘moment’ interior, and then cast out as if it was already exterior. Once one recognises the importance of this change in vocabulary, a number of questions are raised which require a rethinking of some aspects of Foucault’s analysis. These relate specifically to the question referred to earlier as to when the internment of madness started. Foucault (2006: xxix) more particularly presents the Greek logos as having had no contrary. At the same time he refers to the ‘reassuring dialectic of Socrates’ in relation to the Greek notion of hybris, which as Derrida points out, shows (when read together with the texts of Greek philosophers) that the Greek logos had ‘already expulsed, excluded, objectified or (curiously amounting to the same thing) assimilated and mastered as one of its moments, “enveloped” the contrary of reason’ (WD 40). This means, contrary to Foucault’s assertion, that the separation between reason and its other had not taken place (for the first time) in the classical age, but long before then. The entire history of philosophy and of reason in fact bears witness to this struggle. Since the Greeks, reason has been divided against itself, and whatever happened afterwards (including the events as described by Foucault) are only socio-economic epiphenomena that take place on the surface. Madness therefore does not start being confined in the classical age; this internment already starts with the awakening of language. The risk Foucault runs in writing a history of madness in this way is to assume a unity of original presence followed by a subsequent event of division, thereby confirming metaphysics in its fundamental operation.12


This brings us to the question of the concept of madness in the History. Derrida points out that the concept of madness is never submitted to thematic scrutiny by Foucault. Nonetheless:


everything transpires as if Foucault knew what ‘madness’ means. Everything transpires as if, in a continuous and underlying way, an assured and rigorous precomprehension of the concept of madness, or at least its nominal definition, were possible and acquired. In fact, however, it could be demonstrated that as Foucault intends it, if not by the historical current he is studying, the concept of madness overlaps everything that can be put under the rubric of negativity.


(WD 41)


The allusion here is of course to Hegel, and the implication is that Foucault understands madness in a restricted sense, more specifically in terms of the popular and equivocal notion of madness (WD 41). Derrida’s ‘understanding’ of madness as we will see below is much more ‘radical’ for the reason, as he points out, that reason’s constitution of itself, lies at the origin of history; it is historicity itself. In other words, the exclusion of a certain madness is the condition of possibility of meaning and of language. This at the same time implies that what happens in the classical age as described by Foucault ‘has neither absolute privilege nor archetypal exemplarity’ (WD 42). It is merely an example among others of the way in which a certain madness is dealt with in history. As we will see below, much of this ‘criticism’ is later implicitly accepted by Foucault.


Descartes’ Meditations


We next arrive at the important discussion of Descartes’ Meditations, which Foucault engages in at the beginning of chapter II of part one of the History of Madness. It goes to the heart of the question of the ‘meaning’ of madness and thus requires careful scrutiny. Foucault views these passages as the philosophical internment of madness (WD 44) and we can see clearly from his reading how he understands madness in a restricted sense (in line with Hegel’s negativity).13 Descartes in the First Meditation seeks to question all the opinions he has held up until then so as to ultimately arrive at a point where he holds onto only those opinions which are certain and indubitable. For this purpose he does not enquire into every opinion so held but only into its foundations. This is carried through in three successive stages. (1) He first enquires into the senses as a source of knowledge and points out that although our senses sometimes deceive us in relation to things that are not clearly perceptible and things at a great distance, it would be unreasonable to doubt certain things that are presented to our senses. The senses are in other words mostly trustworthy. For example, the fact that he is sitting by the fire, in his dressing gown, with a piece of paper in his hand of which he is aware through his senses, cannot reasonably be doubted. That is, unless he were a madman, who believes that he is a king when he is in fact poor; or who believes that he is wearing gold and purple when in fact he is naked; or who imagines that his head is made of earthenware, that he is a pumpkin or is made of glass. But, says Descartes, he himself is clearly not mad, and it would be foolish of him to follow their example and deny the truthfulness of the senses. (2) Let us then go further, says Descartes, and consider that I might be asleep and dreaming everything that my senses represent to me – that is, that I am sitting here in front of the fire, etc. In sleep we are after all often deceived into believing that what we experience is an experience in real life. Let us assume then that I am asleep, Descartes says, are there then not still certain things which remain indubitable? Indeed. It is like a painter who paints something which does not exist in reality. Even then the forms or at least the colours will be real. Similarly physics, astronomy, medicine, etc. may contain many doubtful things, but ultimately they are based on mathematics, geometry and other similar sciences which, despite the fact that they may not exist, are certain and indubitable. These are in other words truths of a non-sensory origin which are true, whether or not one is awake or asleep (WD 46). Even if I am asleep, Descartes concludes, ‘two and three together always make five, and a square never has more than four sides’ (Descartes 1968: 98). (3) Descartes then goes even further to place all his certainties in doubt, this time by going beyond both sensory and non-sensory foundations, and questions the metaphysical foundations of his knowledge. He now imagines that the God in whom he has always believed as being all-powerful may actually be an evil genius who has decided to deceive him so that all the certainties he has just established are only such because of deception. This places in doubt all his certainties, Descartes acknowledges.


For Foucault, the most important stage in the above process of questioning is the first one, and specifically the following sentence of Descartes (1968: 96): ‘But these are madmen, and I would not be less extravagant if I were to follow their example.’ Foucault focuses his analysis on the first two parts of the procedure ((1) and (2) above) and draws a distinction between three forms of doubt: (a) error of the senses (b) dreams and (c) madness. In the case of (a) and (b), truth does not slip away completely. There is still a residue of truth that remains in both instances. In the words of Foucault (2006: 45):


Thus neither sleep peopled with images nor the clear consciousness that the senses are deceived can lead doubt to its most universal point: we might admit that our eyes can deceive us, and ‘suppose we are asleep’, but the truth will never slip away entirely into darkness.


It is however different with madness. Here all truth dissolves, Foucault contends. Descartes consequently does not delve on madness as extensively as he does on dreams, but simply excludes it by decree as appears from the quotation from Descartes’ Meditations referred to above. This is because to think (ego cogito ergo sum) excludes the possibility of being mad. There can be little doubt about the originality of this reading by Foucault, which provides an excellent introduction to this chapter which will, following upon this ‘philosophical internment’, continue to trace the political decree of the great internment of madness. It however comes at a price. Apart from the fact that Descartes’ text needs to be distorted to arrive at this reading,14 it restricts the meaning of madness to something calculable and excludes from the reading Descartes’ consideration of ‘total madness’ which exceeds metaphysics. This ‘total madness’ nonetheless corresponds with Foucault’s definition of madness as ‘the absence of a work’ or ‘the absence of an œuvre’ (WD 54; Foucault 2006: xxxi).15


In his analysis of Descartes’ First Meditation, Derrida (WD