Derrida and Law

jan 2016

Short presentation of a talk delivered
at the Centre for the Study of Law and Governance at JNU, Delhi
on 13 January 2016

Judging by its ingredients, the alchemy of Derrida and Law was all but assured. In 1949, the young Jackie Derrida, freshly arrived in Paris from Algeria, opted for studies in philosophy as he believed to be unequipped to tackle the classics, logical pathway for the passionate reader of literature and aspiring writer whom he was. Only the patient labour of a few decades against the grain of academic writing would provide him with fame and recognition. By the early 1980s, Derrida’s initial domains of exploration, looking into the large question marks of writing, language or reason, widened to reach topics of immediate societal relevance. The scandals and pseudo-scandals of Paul De Man’s antisemitic texts, the rediscovery of Heidegger’s Nazi affiliations and a few other cases close to the life and thought of Derrida, brought the rising philosopher under the spotlight of popular judgement. “Deconstruction”, the composite and approximate appellation for the condensation of Derrida’s core intuitions, was then further discovered as a fertile land to explore many burning questions of society. Derrida’s writing increased in pace and scope, most publications consisting in the reworking of lectures delivered on topics suggested by conference organisers from around the globe. Thus did he enter into new fields of enquiry, trying his quill to the new parameters of each domain while furthering his creative readings of the major figures of literature and philosophy. Each time, a multifold question is asked through the prismatic probing of a term, its history, its etymology, its games of evocation, as Derrida spots an unnoticed utterance between two lines of Heidegger or a curious usage in a lost fragment of Nietzsche. Derrida’s texts are thus encounters, pluralistic meetings, meticulous stagecrafts bringing together lexicon, conceptual thinking, literature and contexts of relevance in a surprising fashion. Thus could deconstruction engage highly pertinent reflections in unexplored directions, through the margins of our artistic and political heritages.

In 1980, his essay “The Law of Genre” challenges the reader to enter a new perspective on legality and justice via a creative re-reading of a récit or account by enigmatic French writer Maurice Blanchot: La Folie du Jour, The Madness of the Day. Already, the idioms of literature and justice mingle:

“What will I ask of La Folie du Jour? To answer, to testify, to say what it has to say with respect to the law of mode or the law of genre, and more precisely, with respect to the law of the récit…”

Derrida unveils the legal-like modalities of literary genres, developing the conceptual implications laid by this account of a police encounter, and enters Law through the backdoor. But suddenly, Blanchot spots the turning point: “the law is in the feminine”. Blanchot looks into an intuition, a subliminal sign: law, la loi in French, is in the feminine gender. Far gone the assumptions of neutrality and universality: law is partial, so peculiar and embodied that she even has a gender.

“And the affirmative “I,” the narrative voice, who has brought forth the representatives of the law to the light of the day, claims to find the law seductive—sexually seductive.”

Evocation set, conceptual landscape opened: Derrida’s job is done.

Two years later, with “Before the Law,” it is to Kafka that Derrida turns. Not Kafka of The Trial, tired textbook reference for cultural perspectives on justice, but the less known piece Before the Law. Kafka’s language is mythical, fable-like, and Derrida quotes him at length, extricates and tallies with passages to comment and build on the short story’s power of revelation.

“The doorkeeper stands before the law. This may mean that he respects it: to stand or appear before the law is to submit to it and respect it, the more so as respect keeps one at a distance, on the other side, forbidding contact or penetration. But this could mean that, standing before the law, the doorkeeper enforces respect for it. In charge of surveillance, he does guard duty before the law by turning his back to it, without facing up to it, as it were, and thus not “in front” of it; he is a sentry guarding the entry to the edifice and holding at a respectful distance visitors who present themselves before the castle.”

One of Derrida’s many signatures: enter time and its delay, the eternal postponement. The multiplication and difference of doors becomes a différance highlighting the deferral of justice and of its promises. But it also evokes the very law of the text, the text of law but also Kafka’s text and its heritage, guarded like a tribunal by the authoritative figures of publishers, critics and academics.

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Interrogations, perhaps, remain the strongest legacy of Derrida’s works, and they become the Ariadne’s thread able to come back in the new contexts and challenges of our times… If law is the eternal deferral of justice, its différance, what have become of the ideals of fairness?

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This brief mention of Derrida’s foray into law could not be complete without “Force of Law”, a lecture delivered in 1990, in which the philosopher swings between English and French to create a new path of exploration of justice, its language and its secret conditions. Derrida stops at the English expression “enforcing the law”, to echo the necessary paradoxical, classical association of a modern, universal and secular Law, with its culturally particular and generally religious sources. Law resides there, down in the pit separating principled right and de facto force, when states rediscover the fundamentally religious basis of their constitutive violence. The text exemplifies Derrida in his style and remarkable ambition: after bringing new conceptual check-ups on tentative definitions of legal violence, he moves towards German philosopher Walter Benjamin for the second part of the text. Indeed, Benjamin had brought intimately close in his intellectual and life project, the rational heritage of a critique of Enlightenment, the social urgency of dialectical materialism, and a genuine mystical aspiration. Derrida’s text, as often, is elliptical and resonating, wilfully leaving more new questions opened, than old ones answered. It is not Derrida’s project to attempt a summary or an essentialisation of another author’s thought, but rather to highlight surprising details or unnoticed expressions. As his commentarial scholarship is also already one of philosophical creativity, it makes the task of any commentator of Derrida, in turn, doubly impossible. Interrogations, perhaps, remain the strongest legacy of Derrida’s works, and they become the Ariadne’s thread able to come back in the new contexts and challenges of our times. Derrida opens up questions for the foundations and practice of law, through and beyond his texts and his times. If law is the eternal deferral of justice, its différance, what have become of the ideals of fairness? If law is a bottomless abyss of doors, as in Kafka’s tale, how can practitioners grow faith in legal orders which affirm their command and claim the function of reasonable meditations at one and same time? Derrida and law — precious musings of a field-outsider, from another time. Derrida and law — the heritage of eternal and contextual concerns, common denominators with a vital potential, as we undertake today to practice law without forgetting the promises of justice.

Image courtesy: Dewitt Park

Find the quotes and points discussed during the discussion
in the following file:

Derrida & Law - notes--