Derrida’s Law
| Author | Chris Lloyd |
| Published date | 01 April 2017 |
| Date | 01 April 2017 |
| DOI | http://doi.org/10.1177/0964663916659788 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2017, Vol. 26(2) 208–229
Derrida’s Law: The
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DOI: 10.1177/0964663916659788
Meta-Ethical; La and Le
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Politique
Chris Lloyd
Oxford Brookes University, UK
Abstract
This article critically engages with a particular reading of Jacques Derrida’s decon-
structive legal theory which argues that his methodology marginalizes engagements with
the ‘socio-historical’ of law at best or is incapable of such engagements at worst. After
explaining this meta-ethical reading, the piece offers a retort via a broader and more in-
depth reading of Derrida’s legal theory. Here the article problematizes the distinction at
the core of the meta-ethical reading; this being that Derrida’s work established a
mutually exclusive separation between a ‘sociolegal’ critique of law and one considered
of ‘critical legal theory’. This separation will be shown to be misleading by firstly referring
to Derrida’s essay ‘Force of Law’ and arguing that therein the sociolegal and ‘critical legal’
theories are in fact mutually dependant and that Derrida’s concept of surenche`re illus-
trates this. Secondly, a wider reading of Derrida’s work will then illustrate that such a
conceptual binary is incompatible with his deconstructive metaphysical critique. This will
be evidenced with reference to what is argued to be the central point of the meta-ethical
reading, something which is itself born from Derrida’s work; this being the distinction
between la and le politique, ‘politics’ and ‘the political’. With due regard for the history of
this important and complicated deconstructive distinction, it will be argued that the
reductive reading in the meta-ethical critique does not do justice to the inherent paradox
in maintaining a separation between sociolegal theory, la politique, and critical legal
theory, le politique.
Corresponding author:
Chris Lloyd, Faculty of Humanities and Social Sciences, School of Law, Oxford Brookes University, Headington
Hill Hall, Headington, Oxford, OX3 0BP, UK.
Email: clloyd@brookes.ac.uk
Lloyd
209
Keywords
Deconstruction, Derrida, la/le politique, law, metaphysics, sociohistorical
Introduction
The Meta-Ethical Reading of Deconstructive Legal Theory
Jacques Derrida’s theory of deconstruction has had a profound impact on legal studies
since it entered the jurisprudential fray in the 1980s.1 The varying interpretations of
deconstruction within legal studies have produced readings ranging from ‘methodolo-
gical’ to ‘postmodern’ and from ‘ethical-liberal’ to ‘cosmopolitan’, among many others
(De Ville, 2011: 3–13). Within these readings, deconstruction has been cited by a
plethora of legal scholars, leading to ‘references [which] have varied from the sympa-
thetic to the downright hostile’ (p. 2). This article investigates yet another interpretation
of Derrida’s deconstructive legal theory and the corresponding reading of his juridical
thought.2 The investigation of this reading is acute and slow, for ‘[t]he slower the
reading, the greater the receptiveness to the work’ (Fitzpatrick, 2012: 198).
The reading in question argues that Derrida’s deconstructive legal theory at best
marginalizes, and at worst prohibits, engagements with the ‘socio-historical’ (Norrie,
2000). That is, his theory does not, or cannot, ‘[expose] the ideological, superstructural
nature of law by showing that it operates in the service of social, economic, and political
forces that are posited as external and prior to the law’ (Fraser, 1991: 1325). In short,
because Derrida’s work lacks ‘credence and validity in the kind of socio-historical
approach [seen] as central to critique’ (Norrie, 2005a: 14), it consequently holds no
utility for those concerned with social justice. This reading has been proposed by several
scholars, beginning most vocally with the American critical theorist Nancy Fraser
(Fraser, 1984, 1989, 1991) and then continuing strongly thereafter with the well-
known British sociolegal scholar Alan Norrie (Norrie, 1996, 2000, 2003a, 2003b, 2005a,
2005b, 2010).3 This reading of deconstruction is a ‘meta-ethical’ one, as Norrie states:
Although Derrida says that deconstruction operates in part by looking historically at the
genealogies of concepts, he does not relate deconstruction as an ethical project to the
‘possible or useful’ socio-historical project he also identifies. Thus, the socio-historical
critique is marginalised by the deconstructive (metaphysical-ethical) approach which comes
after it. (Norrie, 2005a: 6)4
This reading highlights Derrida’s methodological preference for ‘metaphysics as
ethical abstraction’ over and above a ‘socio-historical critique’ within legal theory
(Norrie, 2003a: 130), which consequently ‘short-circuits’ legal analysis so that it
‘bypass[es] its sociohistorical character’ (p. 129). Similarly, Fraser opines that ‘so long
as Deconstruction remains committed to privileging even negative transcendental reflec-
tion . . . it will never get to ethics or politics’ (Fraser, 1991: 1326). Thus, deconstruction
is itself ‘a metaphysical barrier to a serious critique of law’ (Norrie, 2000: 96) and to an
understanding that ‘[h]uman beings live in society and history, by and through norms,
forms and relations that are historically structured and shaped, including those of the
210
Social & Legal Studies 26(2)
law’ (Norrie, 2005a: 79–80). The meta-ethical reading posits that deconstruction shuns
law’s relation to the socio-historical and is left bereft, as an abstract methodology bear-
ing no relation to the everyday.
Article’s Aims
This article engages with, and offers a retort to, this reductive meta-ethical reading by
illustrating why Derrida’s deconstructive engagement with law cannot but engage with
the socio-historical of law. The importance of this retort is twofold. Firstly, it impedes
the consignment of deconstructive legal theory to an apolitical realm or worse to political
nihilism. Secondly, it attests to the ‘Derridean politics’ (Cusset, 2008: 126) which
emanated from Derrida’s work, not least of all for legal studies but also for ‘feminists
and thinkers of postcolonialism’ among others (p. 126).5 For Derrida was, lest it be
forgotten:
an active and outspoken critic and commentator on issues such as South Africa’s apartheid,
the Israel/Palestine conflict, the bloody civil war in his native Algeria, human rights abuses,
French immigration laws, the death penalty, and on what Richard Falk has termed ‘the great
terror war’. (Weber, 2013a: 1)
It is submitted that his juridcio-political works on these issues constitute socio-
historical engagements.
The retort will be comprised of two interconnected parts. The first relates to readings
of Derrida’s most influential text on law: ‘Force of Law: The ‘‘Mystical Foundation of
Authority’’’ (Derrida, 1990, 2002c). Here, the retort is not that scholars have misread
Derrida’s deconstructive legal theory per se but rather that a surface-level reading has led
them to incorrectly establish two mutually exclusive critical routes for legal theory via a
‘bifurcation’ which creates a socio-historical and a ‘metaphysical-ethical’ route (Fraser,
1991: 1325; Norrie, 2000: 86). Against this, an alternative reading will be proposed
based upon a close reading of Derrida’s essay and his concept of surenche`re.
The second part is grounded on an attentive reading of Derrida’s work on the rela-
tionship between politics and philosophy. Here, it will be argued that the aforementioned
bifurcation between the two critical routes of legal theory is incompatible with Derrida’s
metaphysical critique. Here, the scholars’ concerns with the neglect of ‘real-world geo-
historical effects’ in favour of the ‘abstract, mysterious [and] ungrounded’ (Norrie, 2010:
227, 228) will be transposed onto the division in deconstructive theory between la and le
politique, that is between ‘politics’ and ‘the political’ (Lacoue-Labarthe and Nancy,
1997a, 1997b). This transposition will illuminate the seminal division which, it is argued,
motivates their critique that Derrida’s legal theory ‘disable[s] or impede[s] the possibil-
ity of political thought about the relation between violence and law’ (Fraser, 1991:
1327). However, in referring to prior attempts to cleanly separate la and le politique
using Derrida’s deconstructive theory, it will be shown that such a thing is a near
impossible task. For there is a profound deconstructive connection between politics and
the political rather than ‘the tendency in Derrida to neglect material and cultural struc-
tures’ (Norrie, 2010: 87).
Lloyd
211
This article begins by explaining the meta-ethical reading through two brief sections:
the first accounts for the origins of this reading from the 1980s and 1990s and the second
then elucidates the theoretical grounds for this reading.
A Reductive Reading of Derrida
Origins of the Meta-Ethical Reading
The meta-ethical reading of deconstructive legal theory begins with early critiques of
Derrida’s work. In 1984, Fraser noted that ‘there is one sort of difference which decon-
struction cannot tolerate: namely, difference as dispute, as good, old-fashioned, political
fight’ (Fraser, 1984: 142). Then, from one of Norrie’s earliest accounts with regards to
deconstructive legal theory in 1996 we recall that:
In seeking a critical standpoint in what lies ‘beyond’ poststructuralism ultimately has a
problem in coming to terms with the forms of the social world as they are....
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