Sentencing Derrida

Published date01 March 2011
DOIhttp://doi.org/10.1111/j.1468-2230.2011.00848.x
AuthorSimon Glendinning
Date01 March 2011
REVIEWARTICLE
Sentencing Derrida
Simon Glendinning
n
Peter Goo drich,FlorianHo¡mann,Michel Rosenfeld and Cornelia Vismann (eds),
Derrida and Legal Philosophy, London: Palgrave Macmillan, 2008,pp 288, d55.00.
MISSING LINKS
Jacques Derrida ¢rst became a signi¢cant presence in discussions of ‘theory’
during the late 1960s. However, with the publication of his essay ‘Force of Law:
The ‘‘Mystical Foundation of Authority’’
1
in 1992 it became impossible not to
register special connections between what Derrida was calling ‘deconstruction’
and speci¢callylegal theory. In that essay, Derridadrew his own work into relation
with themesright at the heart of legal thinking, and did so in a newand dramatic
way. Deconstruction, the movement of the (not simply) philosophical disman-
tling of theWestern philosophical heritage (which was disclosed as already never
simply philosophical through and through), was not to be thought of merely
as a procedure or practice or process that promised a more just theoretical end or
some kind ofjudicious advance for critical thinking, but as the very movement of
justice in its relation to law.‘Deconstruction’, Derrida announced,‘is justice’.
There had been Derridean writings on law-related themes before, and a num-
ber of legal scholars had attempted to apply lessons from deconstruction to
lawyerly concerns, but the audacious identi¢cation of deconstruction with justice
opened the door to something rather di¡erent. Not just the application of a
motley of newly-minted theoretical concepts (di¡e
Łrance,trace,undecideability,
iterability, arche-writing, invagination, dissemination, logocentrism, phono-
centrism and so on)to the old domain of legal philosophybut the potential trans-
formation of that domain. Legal philosophy, one might think, could do much
more than‘apply’ or ‘use’ Derrida or ¢nd his work ‘helpful’for existing concerns;
it could retrace its steps and learn anew how to read its own heritage, formation
and problematic ¢eld.
‘Force of Law’ invites this re newal in two related ways. Fir st, through a speci¢c
challenge that it raises to the two great traditionswhich have dominated philoso-
phyof law for centuries, to Platonism and conventionalism;and second, through
the manifest embeddedness of this challenge within the wider Derridean corpus.
So a book entitledD errida and L egal Philosophy has th eoppor tunity of providing an
original and richly illuminating introduction to Derrida’s thought: one that pre-
sents him not only as an important thinker for legal philosophy to be concerned
n
European Institute, London School of Economics & Political Science.
1D.Cornell, M. Rosenfeld and D.Carlson (eds), Deconstruction and the PossibilityofJustice (Abingdon:
Routledge,1992)3^67.
r2011The Author.The Modern Law Review r2011 The ModernLaw Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(2) 306^321
with, but as someone who, when understood aright, should come into focus
quite generally as ‘the most jurisprudential of thinkers’ (as the cover blurb states).
Even on its own, then, ‘Force of Law’ should provide ample material for an
assessmentof Derrida underthis title. As I have just indicated, central to thatessay
is the elaboration of fundamental criticisms of both Platonism (by which Imean
the theoretical stance claiming that a satisfactoryresponse to the question‘What is
justice?’ requires rational, theoretical, insight into the idea of justice, a matter
devolving into questions concerning the objectively ideal form of human social
and individual life) and conventionalism (by which I mean the theoretical stance
claiming that legal institutions and laws have their ‘foundation’ in what are ulti-
mately arbitrary conventions). The latter demands of anyone seeking to under-
stand what we call ‘justice’ that he or she adjusts his or her reasoning to
something like ‘what we do round here’; the former demands that he or she
adjustshis or her reasoning to‘how things(essentially) are’.The reader of Derridas
‘Force of Law’ will ¢nd an emphasis on performativity (developing J.L. Austins
groundbreaking work onperformative utterances)which challenges the privilege
accorded to truth and theoretical cognition that one ¢nds in classic Platonism and,
equally, an emphasis on a certain unpresentable ‘there is’ of justice which chal-
lenges the reduction of justice to arbitrary rules and localcustoms that one ¢nds
in classic conventionalism. Derridasignals the route for a thirdway betweenthese
positionswhen he states that his central argument‘takes the use ofthe word‘‘mys-
tical’’ [as found in co nventionalist texts by Montaigne and Pascal] in what I’d ven-
ture to call a rather Wittgensteinian direction’ (14). Derrida also hints at the
possibility of bringing his discussion into relation with other important texts in
contemporary legal philosophy: for example, with ‘Stanley Fish’s discussion in
‘‘For ce’’ (Doing What Comes Naturally)ofHartsConcept of Law,andseveralothers,
implicitly including Rawls’ (14). There is, then, considerable scope for further
development, discussion and explorationof the ideas broached by Derrida in his
workon the theme of the possibilityof justice.
Neither Platonism nor conventionalism, nor J.L. Austin and the analysis of
performative utterances, nor Wittgenstein and the novel use of the word ‘‘mysti-
cal’’, nor any texts by Montaigne, Pascal, Fish, H.L.A. Hart, orRawls, geta si ngle
mention in this book. Not one.
One does not have to read very far in this book before one gets a sense that
manyof those most keen to ¢nd Derrida ‘helpful’to their ambitions for legal the-
ory would be impatient with e¡orts to explore such topics at any length.These
theorists would rather cut to the chase: the question is not the philosophical one
about the foundations of legal authorityand the possibility of justice, but the poli-
tical one about the violence of existing legal authority and the current absence of
justice. The latter are themes for Derrida, without a doubt. Indeed, what, in ‘Force
of Law’he calls ‘the experience of inadequation’ of existing laws with respect to
justice (20) is fundamental to his e¡ort consistently to follow, as far as possible ^
though insisting as well thatit is not ‘a true distinction’ (22)^ Montaigne’s contrast
between laws (droit) and justice. And Derrida is equally insistent that the aporias
he attends to should in no way stop one in one’s tracks (leaving one without a
path, a-poros), and thus prevent one from getting actively involved in juridico -
political battles’ (28). On the contrary, what is required, he argues, is precisely
Simon Glendinning
307
r2011The Author.The Modern Law Review r2011 The ModernLaw Review Limited.
(2011)74(2) 306^321

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