Abstract
The article begins by examining two arguments used by Derrida in work published in 1967. The first claims against Lévi-Strauss that an empirical pattern of events cannot be injected into or superimposed onto an historical pattern claiming universality, for then there can be no disconfirmation of what is said. (This argument is used against Marxian history by some who write in the wake of Existentialism, Paul Roubiczek for instance.) The second claims against Foucault that he does not distinguish between reason as part of thinking and language and reason as an empirical historical structure capable of modification along time. The article then discusses the use of very similar if not identical arguments in Derrida’s much more recent work on laws, Force of law. The intelligibility, the interpretability, of laws and their history comes after the laws, not before, and is thus not fully universalisable.
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Notes
The terms here at this point of this paper are mine, used for speed of description.
Derrida rightly counts public recitation as memorialization and thus as a kind of writing.
There is clear but here unflagged reference to the philosophy of Emmanuel Levinas.
The language at this point is directly critical: “Is it sufficient to speak of superstructure and to denounce in an hypothesis an exploitation of man by man in order to confer a Marxian pertinence on this hypothesis” [2, p. 120].
“The genealogical relation and the social classification are the point of junction of arche-writing, condition of the (so-called oral) language, and of writing in its ordinary meaning” [2, p. 125], translation modified.
“Selon la distinction à laquelle il semble tenir”. “According to the distinction he seems to hold to” ([2, p. 186], my translation).
Epimenides the Cretan states that all Cretans are liars; Lévi-Strauss implies that all awareness of historical position is itself historically positioned, and thus limited. In relation to the last section of the present paper, on Derrida on Benjamin, it is worth noting that Benjamin wrote a short paper, not published during his lifetime, “The paradox of the Cretan”, and that the paper makes no reference to the immediately contemporary logical analyses of the paradox, but seeks to integrate it into a theory of appearance where the difficulty of the paradox and “its appearance of logicality is constituted through its subjective form” [7, p. 312].
Here Derrida in what might be a reflection on part of his own philosophical context seems to me to show a link to a kind of existentialist current when he began to write, and which he is turning from. But this should not stop the reader reflecting on freedom as he brings it in in this place of his argument. It suggests that he is indeed thinking about a “law of universal form” and what it might be, even if in his work he will use this in a muted, or rather, evolved fashion—he is definitely rejecting the Lévi-Straussian view here.
“The struggle against illiteracy, is thus indistinguishable from the increased powers exerted over the individual citizens by the central authority. For it is only when everyone can read that Authority can decree that ‘ignorance of law is no defence’” [2, pp. 131–132].
I discussed this many years ago in “Deconstruction, empiricism and the postal services” [9].
This title is adopted later. At its first publication, 1961, the title is Folie et déraison: Histoire de la folie à l’âge classique, [Madness and unreason: history of madness in the classical age].
Even mathematics expressed in formulæ is also embedded in a natural language; and mathematical writing, whether in notation or in the natural language, comes with an historical “index” to it, which cannot be totally excised. One can tell what its date is, for the notation of the formulæ has a history too.
That there are problems with the empirical accuracy of this as a generalisation even about European countries has often been pointed out by critics.
Translation revised; note that de fait was translated as “actual”, here modified to “in fact” and that there is a sentence missing but supplied here, in a passage du même au même; also that the translation passim gives “determined” for “determinate” which I have corrected passim. (Both are déterminé in French; but the philosophic term in English is “determinate”). Clearly, the distinction “en droit/en fait” is smudged in the English if “fait” circulates between words like “fact”, “actual”, “reality”. Derrida is a very careful writer, with a careful eye on cumulative effects, and is best read in the original French.
“If the decision through which reason constitutes itself by excluding and objectifying the free subjectivity of madness is indeed the origin of history, if it is historicity itself, the condition of meaning and of language, the condition of the tradition of meaning” [4, p. 42].
An attempt to render the ambivalence of “Du droit à la justice”, the title of the first part of Force de loi: le “Fondement mystique de l’autorité”. I will partly rely on the excellent English translation of this text by Mary Quaintance [11].
The “ethical warriors” who constitute most of those who write on or against Derrida in this vein, have seldom read patiently enough to pick up the implications explored in my first sections.
“I want to insist at once to reserve the possibility of a justice, indeed of a law [loi] that not only exceeds or contradicts law, but also, perhaps has no relation to law, or maintains such a strange relation to it that it may just as well demand law as exclude it” [11, p. 233].
“One cannot speak directly about justice, thematize or objectivize justice” [11, p. 237].
From Montaigne, “De l’experience”, quoting Florio’s translation.
The remark pointing this out is in parentheses and seems likely to be an addition for the French printed version.
For Derrida will point out that this Montaignien position (not a constant one, be it noted) is one that is often, wrongly, pinned on deconstruction as “a quasi-nihilistic abdication before the ethico-politioc-juridical question of justice” [11, p. 247].
Cf. §6.44 of Wittgenstein’s Tractatus Logico-Philosophicus, “It is not how things are in the world that is the mystical, but that it is” ([12], my translation).
I have discussed negotiation in Chap. 3 of Jacques Derrida: Opening lines [13], the chapter concerned with singularities.
As already indicated, the title of the second essay in Force de loi.
“Since every constative utterance itself relies, at least implicitly, on a performative structure…the dimension of justesse or truth of theoretico-constative utterances (in all domains, particularly in the domain of the theory of law) always thus presupposes the dimension of justice of the performative utterances, that is to say their essential precipitation, which never proceeds without a certain dissymmetry and some quality of violence” [11, p. 256].
“Mais quel ordre du droit? L’ordre du droit en general ou cet ordre du droit institué et mis en œuvre (“enforced”, italics JD) par la force de cet état (italics MH)” [6, p. 84].
For—Derrida does not make the general connection, but he had during his lifetime an informed and continuous interest in international law—it raises the problem current now, in the early years of this century, of universal jurisdiction, of whether a court in Madrid for instance, can order the arrest of Colonel Pinochet in London.
A related thought occurs, almost at the level of the satirico-grotesque, when reading the story of D.H. Lawrence, “The Woman who Rode Away” [15].
This paper was written in thought of Heinz Graf von Gluszewski (1895–1980).
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Hobson, M. Laws and Universality, Laws and History. Int J Semiot Law 23, 265–281 (2010). https://doi.org/10.1007/s11196-010-9153-1
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DOI: https://doi.org/10.1007/s11196-010-9153-1