Jacques Derrida

Law as Absolute Hospitality

Jacques de Ville

• Publisher: Routledge
• Year: 2012
• Print ISBN: 9780415612791
• eBook ISBN: 9781136675577
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Jacques Derrida: Law as Absolute Hospitality presents a comprehensive account and understanding of Derrida's approach to law and justice. Through a detailed reading of Derrida's texts, Jacques de Ville contends that it is only by way of Derrida's deconstruction of the metaphysics of presence, and specifically in relation to the texts of Husserl, Levinas, Freud and Heidegger - that the reasoning behind his elusive works on law and justice can be grasped. Through detailed readings of texts such as To speculate – on Freud, Adieu, Declarations of Independence, Before the Law, Cogito and the history of madness, Given Time, Force of Law and Specters of Marx, De Ville contends that there is a continuity in Derrida's thinking, and rejects the idea of an 'ethical turn'. Derrida is shown to be neither a postmodernist nor a political liberal, but a radical revolutionary. De Ville also controversially contends that justice in Derrida's thinking must be radically distinguished from Levinas's reflections on 'the other'. It is the notion of absolute hospitality - which Derrida derives from Levinas, but radically transforms - that provides the basis of this argument. Justice must on De Ville's reading be understood in terms of a demand of absolute hospitality which is imposed on both the individual and the collective subject. A much needed account of Derrida's influential approach to law, Jacques Derrida: Law as Absolute Hospitality will be an invaluable resource for those with an interest in legal theory, and for those with an interest in the ethics and politics of deconstruction.

Chapter 1 Introduction

DOI: 10.4324/9780203809471-1

[D]econstruction cannot be transgression of the Law. Deconstruction is the Law. It's an affirmation, and an affirmation is on the side of the Law.

Derrida ‘WB’ 149

‘Deconstruction is justice’, Derrida states famously in ‘Force of law: the “mystical foundation of authority”’. ‘Deconstruction is the Law’, Derrida says in the above epigraph, dating from 1984. Is this not a clear instance of Derrida (again) contradicting himself? Did he not in ‘Force of law’ strain to distinguish between justice and law? Yet here, in the context of a discussion of ‘Before the law’, he seems to associate deconstruction with law. In his early texts on law, as we have often been told in commentaries, Derrida points to the absence of a legitimate foundation for law. The attempt to find such a foundation, he allegedly says there, leads to infinite regress. In ‘Force of law’ Derrida is said to repeat this claim and then in addition to argue that justice is about a concern for the singular individuals before the law, as opposed to law's generality. Read thus, there can indeed be said to be a belated turn to ethics in ‘Force of law’. The above epigraph would then serve as further evidence of such a ‘turn’. In line with this reading, Derrida in 1989 wished no longer to simply associate deconstruction with the absence of foundations, but also with singularity. Such a reading, which is incidentally not uncommon in the legal context, misses everything that is at stake in Derrida's thinking. As Derrida himself notes in ‘Force of law’ (AR 235), the themes of justice, ethics and politics were at the forefront of many of his earlier texts, such as the texts devoted to Levinas, including ‘Violence and metaphysics’ (1964), as well as Glas (1974), ‘To speculate–on Freud’ (1980), ‘Before the law’ (1982), ‘Declarations of Independence’ (1976), ‘The laws of reflection: Nelson Mandela, in admiration’ (1986), etc. He furthermore notes that ‘[i]t goes without saying that discourses on double affirmation, the gift beyond exchange and distribution, the undecidable, the incommensurable or the incalculable, on singularity, difference and heterogeneity are also, through and through, at least oblique discourses on justice’ (AR 235). This means that all his texts can in a way be said to relate to justice. Little attempt has been made thus far to enquire into this assertion by Derrida, and to establish what it means for an understanding of the concept of law. Law as Absolute Hospitality seeks to do so, through a slow, detailed and contextual reading of a number of Derrida's texts, including some of those mentioned above. ¹ It will seek to chart a new direction in the reception of Derrida in the legal context and, at least to some extent, beyond that context as well. What will come to the fore is a very different understanding of the concept of law than has dominated legal discourse up until now. The main focus of this introductory chapter will be an outline of Derrida's broader ‘project’. Without a grasp of this project, it is simply impossible to contemplate the transposition of his thinking to the legal context. Derrida's relation to Heidegger, Husserl, Levinas and Freud will, because of their significant influence on his project, play an important role throughout this book and will be briefly considered here within the context of Derrida's project. Before coming to that, we will first analyse some of the most influential readings of Derrida in the legal context thus far, which Law as Absolute Hospitality will seek to distinguish itself from. This analysis will at the same time introduce certain aspects of Derrida's thinking. To conclude the chapter, an explanation will be given of the title of the book and a brief analysis will be undertaken of the sequence and content of Chapters 2 to 8.

1 In the legal context, this kind of approach (analysing in detail the texts of Derrida) has not as a rule been followed, perhaps with the exception of commentaries on ‘Force of law’. Outside of the legal context, it is more often employed.

Dominant readings of Derrida in the legal context

Since Derrida appeared on the legal radar in the 1980s, his texts have been discussed and referred to in numerous legal works. Such references have varied from the sympathetic to the downright hostile. Almost without exception, the hostile readings are characterised by a superficial reading of Derrida. Detailed attention will not be given to these readings here, although Law as Absolute Hospitality as a whole seeks precisely to address the many misconceptions that exist in relation to Derrida's thinking. The sympathetic readings unfortunately sometimes fare little better. As noted above, they are in many instances similarly informed by a lack of appreciation or disregard of Derrida's broader project. In what follows, a number of influential readings of Derrida in the legal context will be briefly engaged with. The scholars to be discussed are faithful to Derrida's thinking in varying degrees. The engagement with the readings of these scholars will set the scene for a different reading of Derrida in the legal context, which will seek to follow him as closely as possible. ²

2 This said, there are of course limits to the extent of ‘closeness’ to Derrida's thinking in a book of this nature. Law as Absolute Hospitality gives an account of Derrida's thinking, and thus proceeds by way of reason and calculation, which is of course exactly what Derrida places in question in his writing. Closeness would furthermore require following Derrida's ‘style’, which would make it difficult to explain Derrida's thinking in an accessible way. This book will therefore almost without exception be in the constative mode, even when its primary ‘theme’ is Derrida's notion of absolute performativity (see Chapter 2).

The methodical reading

In the early reception of Derrida by Critical Legal Studies (CLS) in the United States, Derrida's deconstruction of hierarchical oppositions, such as that between speech and writing, was employed to ‘deconstruct’ hierarchical oppositions to be found in law. ³ One of the problems that plagued the CLS reception of Derrida was the descendance of CLS from legal realism. Legal realism, as is well known, promoted a view of law freed from all transcendentalism. Derrida's challenge to transcendentalism made him appear as a kindred spirit, whereas the position was much more complex. In the early reception of Derrida his analysis of language was consequently relied on to show that some legal concepts and doctrines are usually or traditionally privileged over others (in US law), for no definitive reason, and that legal concepts and doctrines are thus ultimately constructs which have no basis in reality. In the case of CLS this ‘deconstruction’ was motivated by left political thinking. From this early reception of Derrida it was however easy to derive the conclusion that deconstruction is simply a technique of argumentation which could be relied on by both the political left and the right. Deconstruction in some hands thus soon became a politically neutral method which could be used to overturn the preferences shown in any argument or rule. In one highly influential version of this reading, ⁴ Derrida's deconstruction of the speech–writing opposition was understood as entailing the ‘temporary’ reversal of this hierarchy, by viewing speech as a kind of writing. This new privilege could however, in turn be reversed. What Derrida ultimately shows, it was contended, is that neither of the two terms can be privileged, as they are mutually dependent on each other. This same ‘method’ can, so the argument goes, be applied in the legal field to any kind of hierarchy that exists, for example in relation to rules informed by a view on human nature: that is, whether human nature is characterised by self-interest vis-à-vis the belief that it is characterised by altruism and community. Neither of these two ways of viewing human nature can however serve as a foundation, as they are both different from and mutually dependent on each other. Deconstruction in this way, it was argued, provides the possibility of emancipation from dominant ways of thinking – that is, the belief that there is one foundational, complete and self-sufficient principle.

This reading of Derrida, as well as other similar readings, tends to retain a distinction between language on the one hand and (social) reality on the other. Derrida's famous statement that ‘[t]here is nothing outside of the text’ (OG 158) is as a result understood to mean that language only imperfectly represents reality. In this reading of Derrida, truth thus remains fully intact, with all attempts to grasp it through language being incomplete. Derrida's understanding of the notion of ‘text’ is however very different from the way it is presented in this reading. Because of the importance of this issue for the rest of our analysis, it will be useful to now already give attention thereto. Different from the way in which Balkin and others understand it, ‘text’ for Derrida already includes a description and a grasping of ‘things’ or ‘reality’. Hegel was the first to propagate this view regarding the relation between thinking and reality, noting in relation to Kant's noumenon or ‘thing in itself’ that there is no beyond to the phenomenon (Hyppolite 1974: 125). Things are simply the way they appear to us. For Heidegger (1962: 246–52), similarly, in so far as man's relation to the world is concerned, Dasein is already thrown into the world and ‘is’ thus Being-in-the-world. This means that there is no world or reality outside of Dasein the existence of which has to be proven, as for example Descartes attempted or Kant's ‘thing in itself’ to which one has no access. Both these ‘metaphysical’ approaches assume a subject that is world-less and that seeks to assure itself of a world (Heidegger 1962: 250). Language for Derrida similarly does not stand vis-à-vis ‘reality’, but is already in its construction of ‘reality’ a ‘text’, which is why he states that ‘there is nothing outside of the text’ or that ‘life is a text’ (‘FT’ 27). He has explained his notion of ‘text’ as follows:

3 See e.g. Tushnet (1984); Dalton (1985); and Frug (1984). For a brief analysis and other similar types of argument, see Douzinas and Gearey (2005: 64–9). 4 Balkin (1986–7). Balkin, to his credit, indicates that his version of deconstruction does not necessarily correspond with that of Derrida. This way of proceeding nonetheless assumes that different brands of ‘deconstruction’ can be constructed at random (and ‘sold’ to legal scholars).

What I call ‘text’ implies all the structures called ‘real,’ ‘economic,’ ‘historical,’ socio-institutional, in short: all possible referents. Another way of recalling once again that ‘there is nothing outside the text.’ That does not mean that all referents are suspended, denied, or enclosed in a book, as people have claimed, or have been naïve enough to believe and to have accused me of believing. But it does mean that every referent, all reality has the structure of a differential trace, and that one cannot refer to this ‘real’ except in an interpretive experience.

(Ltd 148)

The ‘text’, or what Derrida refers to elsewhere as ‘the text in general’ (Pos 44, 59, 60) furthermore does not have an inside that can be clearly distinguished from an outside, in the same way in which life cannot simply be opposed to death, as is assumed by metaphysics. As appears from the reference to the ‘differential trace’ in the above quotation, and following from the analysis of Derrida's relation to Freud, ⁵ the text is structured by a ‘desire’ for death (Pos 88) which is what motivates every deconstruction. Although it is therefore not incorrect to point to Derrida's adherence to the view that language has no basis in reality, it is premature to stop at this point, and to believe that this is all that Derrida asserts. The view that language has no basis in ‘reality’ is to be found also in ‘structuralist’ thinking such as with Saussure, a view which Derrida further develops. Derrida more particularly seeks to analyse with reference to Freud's notion of drives and of the unconscious, the ‘laws’ which determine constructions of ‘reality’.

5 See below.

The postmodern reading

A kind of reading of Derrida which ties in closely with the above methodical reading is to the effect that Derrida exposes all views or constructions of reality as subjective, which would have the consequence that he himself cannot complain about ‘incorrect’ readings of his own texts. In my own interaction with ‘postmodern’ legal scholars I am likewise often confronted with the argument that Derrida's approach emphasises the instability of written texts, and that his own texts speak of undecidability, indeterminacy and dissemination. Multiple readings of Derrida's texts would therefore be possible and no objective criteria would be available to judge one reading as ‘better’ or ‘more accurate’ than another. ⁶ Viewed as such, the present book would simply provide a partial reading of Derrida, a ‘Freudian’ or ‘Heideggerian’ reading perhaps. Just as valid would be a ‘Nietzschean’, ‘Levinasian’ or ‘Foucauldian’ reading of Derrida. The relativist or ‘postmodern’ reception of Derrida in the legal context has made debate about the content of Derrida's texts or his relation with other thinkers more or less impossible, as all interpretations of these texts are viewed as ‘subjective’.

6 I should perhaps confe...

Table of contents

• Cover Page
• Half Title Page
• Other Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• List of abbreviations
• 1 Introduction
• 2 Declarations of independence
• 3 Before the law
• 4 Madness and the law
• 5 The gift beyond exchange
• 6 Force of law
• 7 The haunting of justice
• 8 Hospitality towards the future
• Bibliography
• Index