Derrida, Deconstruction, And The Mystical Foundations Of Law
Updated: Feb 3
By Abhineet Maurya
Jacques Derrida (1930-2004) was a French-Algerian philosopher who laid the foundation of the post-structuralist movement in hermeneutics, linguistics and philosophy. Derrida’s critique of western philosophy, especially its ‘logocentrism’ and ‘metaphysics of presence’ are some of the critical points wherefrom he develops his idea of deconstruction. Derrida borrows from and goes beyond the ideas expounded by structuralist thinkers like Ferdinand de Saussure, Claude Levi-Strauss, among others (hence the term ‘post-structuralist). Derrida’s intervention into our understanding of language has consequences on a range of disciplines including philosophy, sociology, literature, anthropology, historiography, sociolinguistics, psychoanalysis, political theory, and of course, law.
Derrida’s subversive critiques of all of philosophy hold a mirror to human thought. They are subversive in the sense that they seek to undo established foundations and reveal that which lies beneath them, which, in the pretence of neutrality, often hides hierarchised ways of thinking. Through some of his key ideas like ‘deconstruction’, ‘différance’, and ‘trace’, he tries to show how language often tacitly privileges certain aspects of our reality over others. Derrida provides us with an anti-foundationalist approach towards law. This understanding seeks to highlight the limitations of metaphysical constructions that offer a conceptual understanding of the same. In a sense, what Derrida wants to convey that to ground authority in definite rational ontological structures may not always be fruitful because the foundations of authority are, in a sense, always ‘mystical’.
Logocentrism and the Metaphysics of Presence
Derrida introduces the concept of logocentrism in his seminal text Of Grammatology, published in 1967. Derrida holds that the history of metaphysics, from pre-Socratics to Heidegger, has always assigned the origin of truth in general to the ‘logos’ (Derrida, 1967). Broadly speaking, logocentrism, in western philosophy, is the general assumption that there is a realm of ‘truth’ existing prior to and independent of its representation in linguistic signs. That there is a reality that exists outside language instead of being inextricably linked to it is a prejudice that exposes us to treat linguistic signs as distinct from and inessential to the phenomena they represent (Britannica, n.d.). An example of logocentrism can be observed in the way Plato conceived of his theory of Forms. Forms for Plato are aspatial, atemporal entities that give properties and essences their origins. Such Forms represent a higher level of reality that is empirically inaccessible and must be rationally interpreted. This sort of reasoning again treats reality as something ‘out there’ for our rational minds to ‘interpret’. Reality becomes an object of ‘discovery’ of something ‘present’ instead of ‘construction’ through language.
From here, it becomes easy to understand (if that even is an appropriate word to use for Derrida) Derrida’s conception of philosophy as a ‘metaphysics of presence’. The object of philosophy has usually been to make present the ‘truth’ which has before been hidden or obscured by error, ignorance, or language. Language has, therefore, been regarded as an imperfect medium: the object being to get behind the language to the ‘real’ thing (Davies, 1994). One of the clearest examples of this prejudice in favour of presence is the idea of the Cartesian subject. “I think, therefore I am” or that I am here, at this moment, present to myself, and therefore I cannot be doubted.
It is difficult to expound any idea associated with Derrida as something that is the case. This is because doing so may in itself be repugnant to the project which Derrida had embarked on. Derrida has insisted that ‘différance’ is neither a word nor a concept (Reynolds, n.d.). It is a play on the French word différer, which means, at the same time, to differ from and to defer (in time, as in to postpone). Derrida humours himself in the fact that the ‘a’ in ‘différance’ is only read but cannot be heard (Derrida, Postions, 1972). This because the French word différence (the English equivalent of ‘difference’) and ‘différance’ are pronounced the same.
What Derrida wants to denote through ‘différance’ is that meaning is not only, as in the case of Saussurean linguistics, differed from one another, but also deferred in time. For instance, a cat is a cat because it is differed from a dog, a cow, a horse, a lion and other such animals. But what a cat is, is also deferred. A ‘black cat’ may be a qualifier attached to the cat which further gives meaning to the ‘cat’. A ‘black cat which is sitting in my lap’ also adds meaning to the ‘cat’. This process of signification never ends and we may add infinite number of qualifiers, which means that meaning can never be certain. This challenges the Saussurean idea of synchronic linguistics: the idea that there is something like a static language at any given point of time that can be studied as a stock concept. Derrida holds that meaning always has a spatial as well as temporal dimension to it.
Deconstruction is a term that has been used a bit too broadly in academic language. However, Derrida’s usage of the term referred to a particular type of theoretical intervention, not in itself a ‘theory’ the way that the western tradition has understood theory. Derrida’s focus is on the many binaries that are inherent within the western tradition. These include binaries like presence and absence, speech and writing, nature and culture, inside and outside, mind and body etc. These oppositions pose as a peaceful coexistence of a vis-à-vis, but in actuality contain within them a violent hierarchy (Derrida, Postions, 1972). Derrida points out how historically, one end of the binary is always privileged. Presence is privileged over absence, speech over writing, nature over culture, inside over outside, and so on.
Privileging of speech over writing is noticeable in philosophy as back as Socrates, whose prime method of philosophising was having a dialogue with his interlocuter. While Plato wrote down his ideas for wider dissemination, we see how they were written in forms of ‘dialogues’, which reflected that the written word was mainly an instance of and subservient to speech. Jean Jacques Rousseau goes so far to say “Writing is nothing but the representation of speech; it is bizarre that one gives more care to the determining of the image than to the object.” (Rousseau, 1781) This, as Derrida puts it, makes writing a ‘supplement’ to speech. Another aspect of Rousseau which Derrida picks to portray such hierarchy is where in Rousseau’s work Society and Culture are described as corrupting and oppressive forces against the idyllic ‘state of nature’ (Rousseau, Discourse on the Origin of Inequality, 1756). Here again we see nature being raised on a pedestal over culture in a hierarchy that makes itself apparent in this case, but is often implicitly present in our discourse.
But these hierarchies in themselves, as Derrida would demonstrate, are artificially constructed and are far from the position to inscribe all phenomena ‘inside’ it. Derrida takes the example of the opposition that structuralist anthropologist Claude Levi-Strauss makes between nature and culture in his research. He points how incest-prohibition is universal, so it may be implied that it is natural. But it is also a prohibition, a system of norms and interdicts, and in that sense, it is cultural (Derrida, Structure, Sign and Play in the Discourse of the Human Sciences, 1966). This exposes the binary as something that has been constructed in language, rather than being an immutable property of reality itself. A process of any such construction marginalises categories that do not fit into its folds and leads to the domination of a particular perspective of things masquerading as truth, despite being a clearly logocentric perspective of reality.
What remains then, when the deconstruction creates such ruptures in metaphysics? The process of signification is obsessed with making concepts present and apparent to us. Derrida, would however, like us to focus on their absence. The trace is the absent part of the sign’s presence. We saw how in Derrida’s explanation of différance, meaning is always differed and deferred infinitely in an endless chain of signification. Meaning can never be fully present to us. Therefore, there is always a part of the meaning which is absent in the process of signification: only its ‘trace’ is left behind.
There is nothing which as such can be made certain: there can be no final reading of any text, or a ‘correct’ interpretation of any phenomena. Deconstruction leaves us with a profusion of traces which inevitably lead to a freeplay of meaning. However, the mere reversal of a metaphysical oppositions might not challenge the governing framework or the presuppositions that are attempting to be reversed (Derrida, Writing and Difference, 1967).
For instance, it would not do justice to deconstruction if we merely place writing over speech, or culture over nature. Derrida would ask of us in the examination of these metaphysical binaries to expose such traces. The object is not a reversal of the binary, not even its destruction (as in Heidegger’s destruction of metaphysics) but a careful ‘deconstruction’ of it. To highlight that such opposition is constructed and made present, but the reality in fact is that one idea is always dependant on the other. Without the existence of culture, there is no nature to speak of. After the exposition of prejudices, bringing in light what has been left on the margins, we engage in the reconstruction of the ensemble. As Derrida writes, “But the undoing, decomposing, and desedimenting of structures – was not a negative operation. Rather than destroying, it was also necessary to understand how an “ensemble” was constituted and to reconstruct it to this end.” (Derrida, Letter to a Japanese Friend, 1983)
The Mystical Foundations of Law
With an intervention as volatile as deconstruction, there are many consequences that we can imagine with respect to the very idea of law itself. The entire exercise of law as manifested by legal institutions is to separate law from non-law, or as in case of positivists (who are especially interested in closure or self-identification in law), to separate law from ‘morality’. But we do not even need deconstruction to experience the kind of problems such an exercise runs into: our legal theory and practice is replete with them. Deconstruction, however, offers us a good insight as to why this problem occurs in the first place.
One of the most classic examples from jurisprudence that we can take to illustrate the problem that the dichotomy of law and non-law runs into is that of Hans Kelsen: a theorist who famously wished to “free law from the metaphysical mist with which it has been covered at all times.” (Kelsen, 1937) Kelsen conceived of law as a set of principles emanating from the basic law or the grundnorm, for example, a constitution. All that delineates from the grundnorm is law and therefore, legal. However, the grundnorm itself is in a dubious position from the perspective of such an interpretation of law. This is a fact that Kelsen himself recognizes, that the grundnorm is not something that can be explained by jurisprudence; it can just accept it, as a sociological or historical fact (Paton, 1972). Therefore, on the one hand, the grundnorm is in a sense the most fundamental aspect of law: it is the most basic and important law of a jurisdiction; it is at the same time, not law at all, going by Kelsen’s exposition of law. It is the self-contradictory nature of the grundnorm that makes the binary of law and non-law dubious. It is in a sense, a finality which is always requiring more questions to be asked (Davies, 1994).
Similar objections can be drawn on other logocentric approaches to the identification of law, like the Austinian sovereign which subjectifies the sovereign authority as the sole arbiter of law, Fuller’s idea of natural law based on the assumptions that have made themselves present in the very notion of law, and Hart’s Rule of Recognition which lends space to the dominant convention to determine the criteria for the acceptance of the law. Any attempt to create an inside-outside binary within the law is only prone to run into difficulties.
Whereof the foundation of law then? We must understand that law is necessarily like this. It cannot recognise all differences, but simply provides a way of proceeding, without which it could not go anywhere (Davies, 1994). Derrida, however, does not leave us in complete darkness on the question of law and justice. In the 1989 symposium held at New York titled ‘Deconstruction and the Possibility of Justice’ Derrida gives an important keynote address, explaining what he called the ‘force of law’. This force is not always ‘violent’ (although in some cases it might be) but rather refers to something more discursive. For instance, there is force involved in putting the will of the legislature in the form of an Act, the opinion of a judge in form of a judgement, and the grievance of a person in a petition, all of which cast in legal terms something that is phenomenal; that is, it is an act of interpretation. Derrida points out to the expression ‘enforce the law’ while discussing such a force. That is not to say that all laws are enforced, but there can be no law without such hermeneutic force being at work, whether it is direct or indirect, physical or symbolic, interior or exterior (Derrida, Force of Law: The "Mystical Foundation of Authority", 1989).
How do we then make a distinction between and just and violent (unjust) force? As with everything related to Derrida, there is no one clear answer to this. The line delimiting the degree of force required to maintain ‘law and order’ and that which exceeds it is hazy and not all that clear: it cannot be made present (Davies, 1994). The ‘originary violence’ that gives rise to the law in the first place, for example, a revolution that overthrows one regime and replaces it with another, replaces one legality with another. Thus, there is a point where the new legality is illegal as per the old legality: it is neither legal or illegal and both at the same time (Davies, 1994). Hence, through questioning the foundations of law, as Derrida says, we realise it is “neither foundationalist nor anti-foundationalist (Derrida, Force of Law: The "Mystical Foundation of Authority", 1989). These contradictions are something inherent in the law. Therefore, in a way, its origins are always mystical.
However, deconstruction is not without any imperatives to the judges who must construct the law. We must remember that the law by its very nature reduces, simplifies, and excludes that which it deems to be the other. Judges must not forget that law presents us with an inability to distribute justice in a case-by-case manner (Davies, 1994). That job is left to adjudication. Judges must adopt a reflective approach. The Force of Law may make it present to us in an instance but justice may not be found in law itself: it is always deferred. What we can find in law is the trace of justice. Modern liberal democracies often incorporate in their framework the doctrine of separation of powers, which denotes a separation between the creation of law and the application of the law. However, it misses the fact one could easily point out how all “application” is always “creation”, not only because of the fact that it must be interpreted (an act which always involves original input) but also because the facts of the case are always different (Davies, 1994). The possibility of justice, therefore, is opened by the admission of judicial responsibility above other things.
There are many ways to look at the world that Derrida leaves us in. For many critics who (arguably unjustly) consider him a nihilist or a ‘hermeneutic mafia’ who is there to destroy the concept of meaning or the foundations of the much-beloved western tradition, Derrida’s deconstruction leaves us in a dystopian picture. However, it is important to remember that the questioning of dominant structures may present itself as an act of questioning of dominance itself, which may explain all the anxiety related to his name. For others, Derrida presents to us a ready toolbox of interventions through which we can explore and expose our many deep-seated prejudices and assumptions, and present to us a new world that is cast afresh sans the maladies that plagued it. The life and work of Derrida present to us the possibility of new ways to look at a world where the finality of meaning and ideas is no longer a thing: a world where creativity can take new forms and shape and liberate us from the ailment which has affected thought for as long as it has been conceived.
The author is the President of the Philosophy Club and the Editor-in-chief of the Blog.
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