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Derrida on Law and Justice: Borrowing (Illicitly?) From Plato and Kant

Published online by Cambridge University Press:  09 June 2015

Douglas Litowitz
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In 1989, Jacques Derrida was the keynote speaker at a Cardozo Law School symposium entitled “Deconstruction and the Possibility of Justice.” Derrida’s speech was entitled “Force of Law: The ‘Mystical Foundation of Authority’” (hereinafter, “Force of Law”). As the title of the symposium indicated, the conference was organized to address, and perhaps quell, the widely-held impression that deconstruction lacks a coherent conception of justice. Derrida’s lecture is a bold response to those critics who have charged deconstruction with political nihilism, irrationalism, and conservatism. Surprisingly, in “Force of Law,” Derrida comes very close to setting up a full-scale theory of justice and an accompanying account of law. And because Derrida’s recent work affirms the account of justice set forth in “Force of Law,” his lecture merits a close reading.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 8 , Issue 2 , July 1995 , pp. 325 - 346
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Copyright © Canadian Journal of Law and Jurisprudence 1995

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References

1. The proceedings of the Symposium, including the text of Derrida’s lecture and the responses thereto, were published in “Deconstruction and the Possibility of Justice” (1989) 11 Cardozo L. Rev. 919–1726. Many of these papers, along with Derrida’s text, were later compiled in Cornell, Drucilla, Rosenfield, Michel & Carlson, David Gray, eds, Deconstruction and the Possibility of Justice (New York: Routledge, 1992).Google Scholar All subsequent page references to Derrida’s lecture will be to the 1992 version published by Routledge.

2. Due to time constraints, Derrida presented only the first half of his text during the colloquium. The remaining half was delivered at UCLA in 1990, at a conference on “Nazism and the ‘Final Solution’: Probing the Limits of Representation.” See Deconstruction and the Possibility of Justice supra note 1 at 3. The first half of the lecture (upon which I will be focusing) deals directly with issues of law and justice, while the second half involves a close reading of Walter Benjamin’s essay, “Critique of Violence.” Derrida’s reading of Benjamin was the subject of a second symposium at Cardozo Law School, and the papers were published in (1991) 13 Cardozo L. Rev. 1081–355.

3. For the notion that deconstruction cannot generate a coherent ethical program, see Thomas McCarthy, “The Politics of the Ineffable: Derrida’s Deconstructivism” in Ideals and Illusions: On Reconstruction and Deconstruction in Contemporary Critical Theory (Cambridge, MA: MIT Press, 1991). For the notion that deconstruction ultimately lapses into a sort of conservative inaction, see Habermas, Jurgen, The Philosophical Discourse of Modernity (Cambridge MA: MIT Press, 1987) at 161–84.Google Scholar For a possible line of defense against Habermas’ critique, see Couzens Hoy, David, “Splitting the Difference: Habermas’ Critique of Derrida” in Working Through Derrida (Evanston: Northwestern University Press, 1993) at 230–51.Google Scholar

4. In this paper, my arguments will focus upon Derrida’s “Force of Law” essay, but this text will be supplemented with some of Derrida’s other writings that deal more or less directly with the issues of justice and law (of which there are, surprisingly, quite a few). In “Force of Law,” Derrida points out that many of his earlier works address the problematic of law and justice, especially “Declarations of Independence” (1986) 15 New Political Science at 7–17; ‘“The Laws of Reflection’: Mandela, Nelson, in Admiration” in For Nelson Mandela, Derrida, J. & Tlili, M., eds, (New York: Holt & Co., 1987);Google Scholar “Before the Law” in Acts of Literature (New York: Routledge, 1992); and “Violence and Metaphysics” in Writing and Difference (Chicago: University of Chicago Press, 1978).

Some of Derrida’s more recent work also touches upon issues of justice and law, especially Specters of Marx (New York: Routledge, 1994) at xix, 59, and 183–4; Aporias (Stanford: Stanford University Press, 1993) at 16–20; and The Other Heading: Reflections on Today’s Europe (Bloomington: Indiana University Press, 1992) at 76–83.

5. “Force of Law”, supra note 1 at 3–5.

6. Ibid. at 19.

7. Ibid. at 19.

8. Ibid. at 10.

9. Ibid. at 16.

10. Ibid. at 17.

11. Ibid. at 16.

12. Derrida stops short of wholesale adoption of Levinas’ notion of justice toward the other, since Levinas’ analysis carries additional commitments (presumably of a religious character) that Derrida wants to avoid in his lecture on law. Ibid. at 22. Derrida’s appropriation of Levinas in this lecture serves to extend and solidify Derrida’s earlier discussion of Levinas in “Violence and Metaphysics”:

Ethics, in Levinas’ sense, is an Ethics without law and without concept, which maintains its non-violent purity only before being determined as concepts and laws…Levinas does not seek to propose laws or moral rules, does not seek to determine a morality, but rather the essence of the ethical relation in general.

See Writing and Difference, supra note 4 at 111.

13. Given Time 1. Counterfeit Money (Chicago: University of Chicago Press, 1992).

14. “Force of Law”, supra note 1 at 25.

15. The notion of a duty beyond law is explored further in Aporias:

Duty must be such an over-duty, which demands acting without duty, without rule or norm (therefore without law)…[A] responsible decision must obey an “it is necessary” that owes nothing, it must obey a duty that owes nothing, that must owe nothing in order to be a duty, a duty that has no debt to pay back, a duty without debt and therefore without duty.

Supra note 4 at 16. That is, a genuine duty is categorically binding, regardless of the empirical situation in which one finds oneself, and regardless of whether one will be rewarded for doing one’s duty.

16. Wittgenstein provides an excellent example of tracing justifications back to their source in mere customs:

If I have exhausted the justifications I have reached bedrock, and my spade is turned. Then I am inclined to say: “This is simply what I do.”

Wittgenstein, Ludwig, Philosophical Investigations (New York: MacMillan, 1958) sec. 217 at 85e.Google Scholar

17. Quoted by Derrida in “Force of Law”, supra note 1 at 12.

18. Ibid.

19. Ibid. at 13.

20. There are problems with Derrida’s claim that the founding of every state involves an act of interpretive violence. This formulation renders every foundation violent, and therefore obscures the fact that some foundations are truly violent (apartheid South Africa, the former military dictatorship in Haiti) while other foundations are based largely on the consent of the governed (as in the United States). By saying that all law involves force, Derrida fails to distinguish between legitimate force which follows a rule of law, and illegitimate force which occurs at the whim of the powers that be. See my “Derrida and Lyotard’s Misreading of Founding Documents” (unpublished manuscript). A similar point is made by Fraser, Nancy, “The Force of Law: Metaphysical or Political?” (1991) 13 Cardozo L. Rev. 1325.Google Scholar

21. “Force of Law”, supra note 1 at 14.

22. See “Before the Law” in Acts of Literature, supra note 4 at 191–94, and “The ‘Laws of Reflection”’ in For Nelson Mandela, supra note 4 at 18.

23. Derrida’s more recent work affirms that the call to responsibility requires an experience of the impossibility of justice. By experiencing this aporia, we avoid “good conscience,” a term which denotes the mistaken belief that one has successfully encapsulated the infinite demand of justice into a technical rule. See Aporias, supra note 4 at 19, and The Other Heading, supra note 4 at 81. The notion of “good conscience” has a Sartrean ring to it, and in essence Derrida’s “good conscience” resembles Sartre’s “bad faith,” in that both are a flight from infinite responsibility.

24. “Force of Law”, supra note 1 at 14.

25. Ibid. at 13–14.

26. Drucilla Cornell has focused heavily on Derrida’s notion of “the limit,” and she even refers to deconstruction as “the “philosophy of the limit.” Cornell, Drucilla, The Philosophy of the Limit (New York: Routledge, 1992).Google Scholar By this she means that deconstruction exposes the structural conditions which make a legal system possible in the first instance, but which are themselves outside the system.

27. “Force of Law”, supra note 1 at 15. At times, Derrida seems to contradict this claim that justice cannot be (fully) present. For example, he argues that it is just to address the other in the language of the other, and that it is unjust for one group of people (say, imperialists) to impose its language upon a minority. I think that in such cases, Derrida is committed to saying that a particular action is “just” or “unjust”, which seems to entail that justice or injustice is present in such cases. Of course, since Derrida eschews the metaphysics of presence, he has difficulty explaining (without using metaphysical language) how justice can be present as such.

28. Derrida’s notion that justice is never fully present, and is different from itself, harkens back to his critique of the metaphysics of presence and to his notion of différance. See “Différance” in Margins of Philosophy (Chicago: University of Chicago Press, 1982).

29. “Force of Law”, supra note 1 at 16.

30. Ibid. at 22.

31. Ibid. at 23.

32. Query whether this is a genuine “paradox” or “aporia”. For example, H.L.A. Hart points out that legal rules must be open-textured to allow for flexible application to new situations, so uncertainty is built into the judicial process, for good reason. Hart, H.L.A., The Concept of Law (Oxford: Oxford University Press, 1961) at 127–28.Google Scholar No doubt Derrida is correct that a judge should not be a mere “calculating machine,” nor can a judge ignore precedent altogether, and this makes the judge ‘regulated yet unregulated,’ in a certain sense. However, contra Derrida, it seems quite possible for a judge to successfully juggle these two demands. That is, a judge could avoid the paradox by following the law in most cases, unless she felt that the law was unconstitutional or unjust, in which case she would overrule the law with reference to a higher authority. Hence there is no true “aporia” here, but only contradictory demands between following precedent and being free to ignore precedent. And indeed, one could use similar reasoning to dissolve all three of Derrida's aporias of justice, since the mere existence of competing demands does not necessarily give rise to unpassable aporias.

33. “Force of Law”, supra note 1 at 24.

34. Ibid. at 26.

35. Ibid.

36. Ibid. at 27–28.

37. Specters of Marx, supra note 4 at 18

38. “Force of Law”, supra note 1 at 28.

39. Ibid.

40. Specters of Marx, supra note 4 at 59, xix. Derrida also speaks of a call to the other which involves the duty of action without repayment, in Aporias, supra note 4 at 16.

41. It might be argued that Derrida’s project is not to erect a notion of ‘deconstructive justice’ in the sense of providing a positive program for jurisprudence, but rather to provide a method for questioning the very possibility of a successful and complete legal theory. This reading of Derrida would be similar to the reading given by Hoy, David Couzens, in “Splitting the Difference” in Working Through Derrida, supra note 3 at 251.Google Scholar Yet I think that “Force of Law” is an attempt to explain what justice and law are, in their essence. On my reading, Derrida appears to sketch the outlines of justice and law as such, and therefore he provides the grounds for a positive legal theory over and above his critique of classical jurisprudence. That is, he is not concerned merely with deconstructing, but also with explaining legal principles that can be used in actual cases.

42. For the notion that Derrida’s theory of law employs a type of Platonic transcendentalism (including at least some of the accompanying metaphysical baggage), see Balkin, J.M., “Transcendental Deconstruction, Transcendental Justice” (1994) 92 Mich. L. Rev. 1131.CrossRefGoogle Scholar

43. See, for example, Phaedo at 100d:

[T]he one thing that makes the object beautiful is the presence in it or association with it, in whatever way the relation comes about, of absolute beauty.... [I]t is by beauty that beautiful things are beautiful.

Collected Dialogues of Plato, Hamilton, Edith, & Cairns, Huntington, eds, (Princeton NJ: Princeton University Press, 1961) at 81–82.Google Scholar Similarly, it is by Justice that various actions are deemed just.

44. See Republic, at 479e, in Collected Dialogues, ibid. at 719–29.

45. “Force of Law”, supra note 1 at 25.

46. Ibid. at 16.

47. As some of Derrida’s critics have pointed out, correctly or not, Derrida has a tendency to speak of certain concepts as if they were quasi-transcendental, and hence similar to Platonic forms. This is especially true of Derrida’s notion of “différance” and “arche-writing” which sometimes appear as super-transcendental forces with causal powers. See Freudlieb, Dieter, “Deconstructionist Metaphysics and the Interpretation of Saussure” (1990) 4 J. of Speculative Phil. 105–31. at 113.Google Scholar

48. Derrida discusses certain Kantian elements of his work in the afterword to Limited Inc. (Evanston, IL: Northwestern University Press, 1988)(“Toward an Ethic of Discussion”). In that piece, Derrida speaks of an unconditional responsibility that is not quite outside of all contexts, but manages to penetrate into all contexts. Ibid. at 152–53.

49. Kant, Immanuel, Critique of Pure Reason (New York: St. Martin’s Press, 1965) at 533;Google Scholar Groundwork of the Metaphysics of Morals (New York: Harper & Row, 1964) at 126–31.

50. Immanuel Kant, Ibid. at 127.

51. In an interesting parallel, Kant foreshadowed Derrida’s point that law should not be confused with justice:

[The jurist] can indeed state what is laid down as right, that is, what the laws in a certain place and at a certain time say or have said. But whether what these laws prescribed is also right, and what the universal criterion is by which one could recognize right as well as wrong—this would remain hidden from him… Like the wooden head in Phaedrus’ fable, a merely empirical doctrine of Right is a head that may be beautiful but unfortunately it has no brain.

Kant, Immanuel, The Metaphysics of Morals. Part I: Metaphysical First Principles of the Doctrine of Right (Cambridge: Cambridge University Press, 1991) sec. 229–30. at page 55.Google Scholar

52. “Force of Law”, supra note 1 at 24–25.

53. Ibid. at 25–26.

54. The key question, which is beyond the scope of this paper, is whether Derrida would embrace a version of Kantian theory that has been sufficiently denuded of metaphysics. One example of an ethical theory that fits this description would be Habermas’ discourse ethics, which incorporates certain Kantian notions of universality and reciprocity, yet purportedly eschews Kantian metaphysics. It appears that Derrida finds Habermas’ program weighed down with too many metaphysical assumptions, especially concerning the primacy of communicative speech over other forms of expression, the stability of communicative contexts, and the shared horizons of understanding between persons in an ideal speech scenario. For a discussion of a possible rapprochement between Derrida and Habermas, as perhaps suggested by Christopher Norris, see Hoy, Terry, “Derrida: Postmodernism and Political Theory” (1993) 19 Phil. & Soc. Criticism at 243–57.Google Scholar

55. Westphal, Merold, “Derrida as a Natural Law Theorist” (1994) 34 Int’I Phil. Quart. at 247–52.CrossRefGoogle Scholar

56. Ibid. at 252.

57. Derrida, supra note 48 at 152 (my emphasis).

58. Ibid. at 153 (my emphasis).

59. “Force of Law”, supra note 1 at 22, quoting from Levinas, Emmanuel, Totality and Infinity (Pittsburgh: Duquesne University Press, 1969) (see the section on “Truth and Justice”).Google Scholar

60. “Force of Law”, supra note 1 at 15.

61. See “Différance” and “The Ends of Man” in Margins of Philosophy, supra note 28. Of course, there is a potential contradiction at work in Derrida’s simultaneous denial of the unified subject and his notion that justice involves a duty from one subject to another subject. William Richardson explains the problem nicely:

[H]ow can one talk about emancipation without a conception of a subject that is free and inviolable? …But there is nothing in Deconstruction that can account for a subject that is stable enough to be capable of response, responsibility or freedom.

“Law and Right” (1991) 13 Cardozo L. Rev. 1339 at 1340. Richardson’s point captures the key argument in this paper: for Derrida to generate a notion of justice, he must make metaphysical assumptions (regarding the self, the other, communication, stability of contexts) which he has elsewhere rejected.

62. It would be interesting to explore the ways in which Derrida’s Kantianism is similar to Rawls’ Kantianism. Rawls would agree with Derrida that laws should be assessed on the basis of whether they respect fundamental justice owed to others. But Rawls wants to argue that particular arrangements of positive law can be deemed “just” if they satisfy certain enumerated principles of justice, whereas Derrida thinks that one can never say that the law is just. So Derrida’s view is more Utopian, in die sense that he holds out justice as a transcendental idea that cannot be instantiated in the imminent legal order. For a short comparison, see Drucilla Cornell, The Philosophy of the Limit, supra note 26 at 182.

63. Philosophy of the Limit, supra note 26 at 1.

64. See “The ‘Laws of Reflection’” in For Nelson Mandela, supra note 4 at 20.

65. “Force of Law”, supra note 1 at 8 (emphasis added).

66. It might be argued that Derrida conceives of justice solely as the procedure of questioning the foundations of legal systems, and that he does not put forth a substantive theory of justice. That is, Derrida sees justice as ‘procedural’ and not ‘substantive,’ since he does not provide substantive principles of justice, but only a procedure for interrogating the law. From my perspective, this view fails to capture the fact that Derrida spends a great deal of time discussing justice per se, as if it were something apart from the mere process of interrogating the legal system. I take Derrida’s account to be both procedural and substantive.

67. “Différance”, supra note 28 at 10.

68. “Force of Law”, supra note 1 at 15.

69. Ibid. at 27.

70. Ibid. at 27–28 (emphasis added).

71. Derrida makes a similar claim in “Before the Law,” namely that the duty to the other is beyond history:

To be invested with its categorical authority, the [moral] law must be without history, genesis, or any possible derivation. That would be the law of the law. Pure morality has no history: as Kant seems at first to remind us, no intrinsic history.

Acts of Literature, supra note 4 at 191.

72. “Signature, Event, Context” in Margins of Philosophy, supra note 28 at 320.

73. Philosophy of the Limit, supra note 26 at 8.

74. Ibid. at 182–83.

75. Some of the problems at issue between Derrida and Gadamer (and Habermas, though less directly), are discussed in Behler, Ernst, “Deconstruction Versus Hermeneutics” in Confrontations: Derrida/Heidegger/Nietzsche (Stanford: Stanford University Press, 1991) at 137–57.Google Scholar Interestingly, Habermas argues that his discourse ethics is sufficiently removed from traditional philosophic claims about truth, presence, and totality: “so little is this totalitarian, that there is no call for a totalizing critique of reason against it.” The Philosophical Discourse of Modernity, supra note 3 at 408–09. Habermas claims that since discourse ethics is fallibilist and non-metaphysical, there is no reason for deconstmctionists to suppose that Habermas is caught in a totalizing metaphysics of presence. As for Derrida’s engagement with J.L. Austin’s speech-act theory (and with John Searle), see Limited Inc, supra note 48.

76. See Foucault, Michel, “Technologies of the Self” in Technologies of the Self: a seminar with Michel Foucault, Martin, Luther et al., eds, (Amherst: University of Massachusetts Press, 1988) at 16–49.Google Scholar A description of the changes made by Foucault in his later work can be found in Simons, Jon, “From Resistance to Polaesthics: Politics after Foucault” (1991) 17 Phil. & Soc. Criticism at 41–55.Google Scholar