2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Chapter 7 Derrida's territorial knowledge of justice William E. Conklin Introduction Peter Fitzpatrick's writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or decomposition of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick's articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida's theory of laws as universals and with Derrida's theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official's decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call 'individuality'. Derrida's theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida's theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law's legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is 295_07_Reading Modern Law.indd 102 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 103 constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signified or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida's theory of law. I claim that this rupture permeates Derrida's writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick's exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida's legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida's legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge. The vacuous foundation of law Permit me to turn to Fitzpatrick's work as my entry point into Derrida's theory of law. When Fitzpatrick seeks the foundation of law in various contexts, including judgments in Canada and Australia, access to justice, and post-colonial thought, he invariably exposes the foundation as nothingness. A foundation must radically differ from the ordinary forms as laws. If the foundation were an ordinary analysable unit or form, there would be no finality in the trace of one unit to another in search of a foundation. So, the foundation, being knowable and yet external to laws as forms, is a mere form without particular content. As Fitzpatrick puts it, the foundation is 'empty', 'vacuous', 'nothingness', 'beleaguered' (2002: 242; 2005: 9–13; 2008a). Relying heavily upon Derrida's 'Force of law' (1990), Fitzpatrick emphasizes that the foundation has a mystical character, in that language (the signifier/signified relation) cannot access it. This mysticism colours the foundation despite the rationalist pretensions of the professional knowers and despite the rhetoric of the rule of law. I have described the foundation as invisible because of its inaccessibility to legal language.1 This inacessibility of the foundation has led, ironically, 295_07_Reading Modern Law.indd 103 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 104 W. E. Conklin to its construction by legal officials and philosophers. We officials and pedagogues have done so by decomposing concepts into their features or elements on faith that by doing so we would access laws and justice. We have ironically done so in the name of the foundation. Because of this selfgenerating character of the system of forms and concepts, and because of the need for an externality to the analysis of forms, the ultimate form is not decomposable into further units. The state fulfils this quest for a finality to the analysis of forms. Because of the emptiness of the ultimate form of the system of legal units, legal philosophers end up concealing the vacuous foundation of law as they analyse theories about the discrete analysable units. Fitzpatrick offers several contexts where such concealment permeates judicial reasoning. In the first context he quotes Kant's oft-forgotten assertion (oftforgotten even in contemporary readings about ethics and political philosophy) that it is treasonous to question the foundation of the modern legal order (Fitzpatrick 2003b: 436, quoting Kant 1797/1996: 95; see also Fitzpatrick 2006b: 167, 175, 183). In a second context he recalls how the universal truth embedded in law was relied upon by European states in the process of colonizing much of the globe (see, for example, Fitzpatrick 2002: 242). In a third context the impact of the vacuity of the foundation of the system of legal units upon Anglo-American analytical jurisprudence is exposed. Law has been associated with an autonomous system of rules or a coherent narrative structure, both of which are said to depart from the behaviour and the beliefs that a founding rule or a background structure of conceptions represent. Once we are left with the autonomous system of rules or principles, there remains a forgotten 'sub-standard, abnormal case containing within it the threat that the legal system will dissolve' (Hart 1994: 123; Hart's original 1961 edition quoted in Fitzpatrick 1992: 210). In a fourth context, to be discussed later in the chapter as 'being with', the foundation of law is sometimes associated with social bonding. This concern with social bonding as the legitimizing source of the system of rules is also forgotten once officials begin to analyse the chains of rules. Finally, Fitzpatrick turns to the impact of the vacuity of the foundation to international law. Given the vacuity of the state's legitimacy and given that the state is the primary legal person of international law, the legal official needs to address the mystical foundation of the state's domestic legal order before that official can sustain the existence of international law (Fitzpatrick 2003b). Against the above contexts, law is self-posited and self-determined (Fitzpatrick 2004: 122). The structure of concepts dissolves into the power of state officials. The rule of law becomes a mere rhetorical device to sustain the power of lawyers and judges. The critical aspect of this is that because the concepts themselves are not accessible – always being deferred by the trace of one sign, which represents a signified concept to 295_07_Reading Modern Law.indd 104 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 105 another representing sign – the power of officials is entangled with their knowledge of legal language. Since professional law schools introduce and protect that language, professional legal education is instrumental in sustaining the power relations of society (see further Conklin 1993, 1998). And legal education does so in the name of the law and access to justice. The consequence is that the foundation is actually constructed by officials as they search for more rigorous lower-levelled forms or concepts in the metaphysical objectivity of higher-ordered forms. The foundation is effectively constructed inside, not outside, the structure of forms as officials aspire to access legal objectivity. This is the point where Fitzpatrick's work impacts upon the analytic methodology of contemporary jurisprudence, legal teaching materials, and scholarship about the law. What so many contemporary jurisprudes describe as the 'existence conditions' of the legal order – the social facts, the law beyond law, the state of nature, the General Will, the People, the Grundnorm – is a myth. In contemporary analytic parlance, concepts are valid if they are reasons for action by officials of the state. The gist of Fitzpatrick's originality might be framed in the language of analytical jurisprudence as follows. The 'existence conditions' of a legal order can be put to the side as not binding reasons for action. Fitzpatrick insists that the philosopher just cannot separate the particular rules of a legal order from the existence conditions that the self-generating and self-defining Recht excludes. Further, when one traces a reason for action to another reason for action, one ultimately recognizes that the existence conditions of the legal order are nested in the power relations of state officials. The consequence is that legal forms, so much a part of contemporary legal education in professional law schools, ultimately depend upon the self-defining law itself. Again, the ultimate foundation of law is what Fitzpatrick describes as 'vacuous', 'empty', and a 'layered irony'. The self-defining system of rules and institutions is thereby violently imposed upon inhabitants in the name of the rule of law and objectivity. Fitzpatrick draws from Žižek's reading of Kant to the effect that the origins of the legitimate order are 'lawless origins' that are cancelled by the historico-empirical circumstances that generate the legal order (Žižek 1991: 205). An explanation of the origins of the legal order 'a priori puts us outside'. The myth and mysticism of the origins remain a secret so long as contemporary legal theorists, law teachers, and other officials colour their analyses as the rule of law and objectivity. The secrecy is reinforced by disparaging rhetoric directed towards anyone, whether inside or outside the chains of analysed forms, who attempts to pierce the veil of the invisible foundation. Social bonding among the non-expert knowers of legal forms remains an outside possibility. The very existence of conditions of law – the 'social facts', 'the People' and the like – only depends upon the officials of the territorial state and the power relations internal to the state. 295_07_Reading Modern Law.indd 105 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 106 W. E. Conklin Contemporary Anglo-American legal philosophy, so much a part of and dependent upon the dominance of a state-centred legal order, misses law's inward self-determined and metaphysical construction of the foundation. The quest for the origin of laws in an external source, such as the social facts or a perfect coherent narrative, sustains legal philosophy in an air of naivety and denial. As Hart (1994) described from time to time, he was 'haunted' by the prospect that the existence conditions of the legal order were nested in a social bonding that the analysis of concepts could not access. Such conditions, he admitted, were unrecognized and unrecognizable because they were exterior to the self-conscious writing of the officials of the state. They were 'unstated', prior to the writing of officials. And yet, even that prospect of unstated unrecognized social behaviour remained excluded from legal philosophy. What mattered was power: [O]nly officials might accept and use the system's criteria of validity. The society in which this was so might be deplorably sheeplike; the sheep might end in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of a legal system. (Hart 1994: 117) But an inquiry beyond the positing and analysis of the elements of a form or concept of recognition or an intellectually coherent narrative in an effort to decompose concepts as reasons for action would amount to 'naïve' beliefs and 'emotion rather than truth', as Matthew Kramer puts it, 'folk theories', 'half-baked', 'intuition-mongering', and 'psychological facts', as Brian Leiter expresses it, or, as Hart asserts, a 'nightmare' that incidentally 'haunts' legal philosophy.2 The consequence of the vacuity of the foundation, then, is that power determines law's own legitimacy. Thrasymachus has won out over Soc rates' inward voice of inquiry. Fitzpatrick (2006a) examines the ultimate power relations at the foundation of the modern legal order in several contexts. The most obvious one today is the imperial quest of the United States. Another is the failure of international lawyers to address the sovereign's mystical foundation, a mysticism that legitimizes the primary legal persons of international law (Fitzpatrick 2003b). Perhaps the most consistent context of his exposure of the vacuous foundation is his examination of the power of European states as they imposed their concepts upon Australian, African, and North American indigenous inhabitants (Fitzpatrick 1990, 1998, 2001b, 2002, 2008a; Mostert and Fitzpatrick 2004). The signs (or words if we use the latter metaphorically) represent such forms, and such sign/signified relations constitute a language. The language is violent. Raw power and violence, not the rule of law, explain the imposition of forms upon indigenous social life precisely because the origin of 295_07_Reading Modern Law.indd 106 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 107 the rule of law rests in vacuity. For Fitzpatrick, Derrida's theory of law offers an important explanation as to why this is so. Fitzpatrick's argument goes like this. When X resists Y, Y's integrity is elevated at the very moment that Y is diminished and parasitic upon X (2008b: xi). In order to maintain its determinacy, law, as form, must respond to, as well as resist, the diminished and parasitic exteriority of the structure of forms. The latter privileging of the supplemental alien-ness poses an ironic twist. For, although law must resist the individual event, law must also respond to the latter in order for law to be determinate. As a consequence, law, to be law, requires a relation between the indeterminate form on the one hand and the determinate particularity on the other. The one cannot exist without the other, and yet the identity of each must remain autonomous of the other. The indeterminacy of pre-legality is 'always' on the other side of the divide. And yet, law needs content – its forms being universal – and this, in turn, requires that law respond to the particularities of the indeterminate pre-legality. Pre-legality is indeterminate because legal language, which represents analysed forms, cannot access the non-cognitive determinate experiences. In order to be determinate, law must 'extend beyond, exceed', or respond to what is determinate in a judicial or legislative decision for the time being (ibid.: 440). This responsive relation would lack the character of the 'violent word' or language which is otherwise superimposed upon the concrete, contextspecific experiences. The universal forms are superimposed upon the stranger as the voice of such experiences (Fitzpatrick 2001d: 145–6). Derrida's sense of law Now I shall take up the relation of universal forms to the individual presence of a particular experiential event, an event that Derrida claims is inaccessible to the forms. This response of the forms to the experienced event, described by Derrida as a decision, faces a formidable problem, namely that so long as we presuppose what I shall call a territorial sense of knowledge, instead of an experiential knowledge, there is an untranslatable rupture between our legal knowledge of universals on the one hand and the immediacy or presence of the identity of utterer and decision on the other. This rupture between territorial knowledge and the outside and pre-existing experiential world raises this prospect: law's response to its antithetical other does not and cannot bring closure to the determinacy of law. This is so because law's response occurs through the configurations of signs with which officials and philosophers are familiar precisely because they are situated in the legal space on the territorial side of the rupture. The best that we can do is picture (or imagine) the identity of the stranger on the other side of the territorial boundary, which defines the outer limit of our knowledge of universals. The best that we can do is translate such 295_07_Reading Modern Law.indd 107 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 108 W. E. Conklin an imagined identity into our own familiar language. Derrida especially emphasizes this inevitable need to translate the voice of the stranger into our own language. Again, Derrida understands language as the configuration of the interrelations of signifiers (see Derrida 1985). The consequence is that there is always an extra-ordinary or inaccessible remainder to legal language. Even the rupture between universals and the individuality of a decision cannot be reconciled within the paradigm of legal knowledge, which Derrida takes for granted. Let us gain a closer understanding of Derrida's theory of law in order to appreciate the presupposed rupture that contains law. First, what does Derrida signify by 'law'? Second, what does Derrida signify by 'individuality'? Law as form Derrida takes for granted that law is composed of a system of contentindependent forms. It is important in this respect that although Derrida did write about Hegel's logic, Derrida takes Kant for his understanding of the identity of law.3 In this respect he is especially influenced by Kant's preoccupation with moral law as a conditional or categorical imperative or form (Derrida 1987: 32; 1990: 245, 275; 1992: 191). Conditional and the categorical imperatives intellectually transcend experience. Imperatives are universals because they are purged of social-cultural content. This is so because difference arises from the differentiation of the boundary of one form from the boundary of another. This preoccupation with the boundary of forms is reinforced by our own association of laws with doctrines, rules, principles, tests, and other forms. The consequence is that the interrelation of forms defers to a sameness. A form is important because of its utilitarian relation to another form. A form is stuck in acts of intellectualization. The differences are homogenous. Put another way, what might be considered 'difference' is a difference among signified forms in a given disciplinary language. Hegel describes such differentiation as Verstand.4 Although one might literally translate Verstand as 'understanding', Verstand misses the embodiment of meaning. Gadamer (as did Husserl and Merleau-Ponty) associates understanding with such meaning. Objects can be meant as well as perceived. Meant objects draw from the experiential body so that understanding is lived. Understanding thereby defers to the prejudicia or prejudgements and forestructures of the experiential body. Verstand lacks such an inquiry into such prejudgements and forestructures of meaning because Verstand lifts Gadamer's 'understanding' above lived experiences by distinguishing between the boundaries of signified (and empty) forms. Since law, for Derrida, is composed of signified forms, the justice of legal space – the justice being concrete or immediate (or present) acts of meaning – is inaccessible to such forms. Legal space is highly reified vis-à-vis the ipseity of 295_07_Reading Modern Law.indd 108 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 109 decisions – that is, reified as configurations of signifiers. Signifiers can be intellectually used by officials without ever having to address the experiential content of forms. So too, the intellectual differentiations of forms miss the immersion of the officials and of the forms in the prejudicia of a shared ethos.5 The consequence of this sense of a system of laws (lois) as forms is that the forms are content independent. If the forms represent social relations as they are or as they ought to be, this is a mere happenstance. And yet the forms are said to be universally applied to all social relationships that fall inside the boundary of the forms. Inhabitants, as subjects, fall 'under' and 'before' the forms. They are 'equal' under and before the boundary within which the familiar knowledge of forms exists. Because the forms are content independent, the forms possess some surpassing reductive ability to contain responsiveness, to ensure that 'the aleatory margin . . . remains homogenous with calculation, within the order of the calculable' (Derrida 1989: 55, quoted in Fitzpatrick 2005: 4, emphasis added). The forms, as universals, assimilate all threatening forms 'out there' beyond their boundaries. All language is thereby written in the sense of being signifying relations – that is, in the sense that signifiers represent signified forms in terms of other signifiers without ever accessing the forms (see further Conklin 1996). Language, in this context, is thereby public rather than privately thought out inside one's intentional consciousness. Derrida takes Edmund Husserl's theory of meaning to represent a theory of language as private. Husserl (2001: esp. 560–2) claims that a subject may be present or immediate with intended or meant objects. Derrida claims that such an immediacy occurs through speech. Speech itself, however, is nested in the configurations of signifiers, according to Derrida. For Derrida, concepts just do not exist independent of chains of signifiers – that is, of writing. One signifier defers to another signifier, not to the signified forms (see especially Derrida 1974). Indeed, we can never access universals except as signifiers. We are entrapped in the prison-house of language or, as Derrida put it, of differance. Joining this early focus of signification to his later works on law, universals (lois) are the never-ending configurations of signifiers (or names). Signifiers re-present universals (which we associate with doctrines and rules). We believe that laws are forms but we can never access the forms through language – at least, as Derrida understands language as configurations of signifiers. The inaccessibility of the forms signified by configurations of signifiers leads us to conclude, according to Derrida, that law (droit) can never be 'presently [and] fully just' (1990: 253, as quoted in Fitzpatrick 2005: 4). Presence, after all, returns us to Husserl's or embodied experiential language, something which is not possible, Derrida had claimed in his earlier works. As Fitzpatrick emphasizes, the system of forms (droit), to be universal (i.e. as forms), 'cannot be contained in its determinate presence' (ibid.: 6). 295_07_Reading Modern Law.indd 109 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 110 W. E. Conklin The consequence for Derrida's own understanding of laws with universal forms is that the forms are nested inside chains of signifiers, not in the constitution of meaning by bodily experiences. Power relations, as a result, determine who is recognized as a legal person. The 'private domain' of the foreigner is recognized as a legal person by the act of officials 'choosing, electing, filtering, selecting their invitees, visitors, or guests, those to whom they [officials of the state] decide to grant asylum, the right of visiting, or hospitality' (Derrida and Dufourmantelle 2000: 55). As Fitzpatrick quotes affirmatively from Derrida, law is 'a system of regulated and coded prescriptions' (Derrida 1990: 250, quoted in Fitzpatrick 2005: 4). And again, law is understood as an 'existing, coded rule' that 'can . . . guarantee absolutely' the ultimate decision by a judge or other official' (Derrida 1990: 251, quoted in Fitzpatrick 2005: 4). The boundaries of forms are 'coded' by configurations of signifiers. So, legal analysis, in its effort to access legal objectivity, differentiates one signifier in terms of another signifier. The problem is that the discrete laws are never determinate in human experience, at least as long as we assume that laws are contentindependent forms. As Derrida (1973: 129–60) emphasizes, the signifier represents a universal (i.e. a form or concept), which in turn is always deferred from being accessed. So, the indeterminacy of forms arises from the never-ending trace of one signifier to another. The re-reading of signifiers never accesses the signified forms nor the individual context-specific experiences of meaning-constituting subjects. This deferring of an immediacy or presence (or embodiment of meaning) to doctrines, rules, tests, and other forms is especially apparent when one re-reads Derrida's reading of Kafka's parable of 'the man from the country'. A castle represents or signifies the Law as a system of forms. The castle does have a door to the exteriority. A sentry, representing the legal official, stands on guard at the door. The guard gazes outward towards the man from the country. The man from the country waits and waits in order to access the Castle through the door. If officials deeper in the Castle decided to admit the man from the country, such a decision would be determinate. Until that moment, the Castle merely represents universals about rights and duties. Because the universals make claims without ever being opened for the man to enter into them, the Law remains indeterminate. The lived experiences of the man are excluded from the Law. The social relations that the man has experienced prior to his lifetime waiting before the Castle represents how the excluded man and his excluded lived experiences were 'before' the Law. They are phenomenologically and analytically before the law. The justice with which we legal officials are familiar – the justice of legal forms – is misdirected because justice rests in the experiential world that Kafka so powerfully describes of K. The universals, which the Castle represents, are inaccessible from the experiential world because an untranslatable rupture is believed to separate the language of the man from 295_07_Reading Modern Law.indd 110 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 111 the country from the language of the guards of the Castle of Law. The language of the Castle cannot be just: To address oneself to the other in the language of the other is both the condition of all possible justice, it seems, but, in all rigor, it appears not only impossible (since I cannot speak the language of the other except to the extent that I appropriate it and assimilate it according to the law [loi] of an implicit third) but even excluded by justice as law, inasmuch as justice as law seems to imply an element of universality; the appeal to a third party who suspends the unilaterality or singularity of the idioms. (Derrida 1990: 245) Since justice, according to Derrida, dwells in what Husserl describes as lived or experiential meaning, and because such meaning is excluded from writing, justice remains untranslated and untranslatable by the Castle's officials. This is the secret of the Law. This secret is 'an extremely painful thing' (Kafka 1988: 437, as quoted in Fitzpatrick 2005: 13). Fitzpatrick exemplifies this painful consequence of law with reference to the civilizing mission of the colonialist on the one hand and the indigenous experiences of the aboriginal peoples in North America and Australia on the other. So long as we remain in the illusion that the system (droit) of laws (lois) has a foundation, we will pursue the colonizing project. Fitzpatrick brilliantly exposes how Chief Justice Lamer of the Canadian Supreme Court defined aboriginality in a way that aboriginal rights could not be defined except within the Enlightenment (i.e. Kantian) philosophical precepts of 'general and universal' (R. v. van der Peet [1996] 2 Supreme Court Reports 507, paras 17–19). And Fitzpatrick (2002) explains how the Australian High Court held the concept of terra nullius invalid only by the Court's refusal to challenge the concept of colonial acquisition. By inference, indigenous rights are not rights unless they are guided by the universal sameness inside the form(al) legal language of the Europeanized state. Rights are thereby distinguished from each other without addressing the social relations presupposed in the content of the rights as forms. But it is not surprising that Derrida would consider the law, as Recht, to be indeterminate. By associating laws (lois) with empty forms, Derrida finds it easy to represent justice as the unrepresentable and unsignifiable immediacy of utterer with intended objects, an immediacy that Derrida associates with a decision. Individuality Given that laws are understood as forms (or universals), we have to ask, 'What is the exteriority to the system of forms?' Derrida uses the terms 295_07_Reading Modern Law.indd 111 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 112 W. E. Conklin ipseity and 'individuality' to describe the exteriority to the forms. What does he signify by individuality? One might respond to this question by returning to the embodiment of meaning by the subject. We have seen, however, that in Derrida's theory of language, all there is is writing, and, as such, there is no subject except as constructed from the configurations of signs. The being is recognized as a legal person with rights and duties. The being is given a place with a name (Derrida and Dufourmantelle 2000: 35). That said, Derrida not infrequently describes the exteriority to law as a heterology of experienced events. Such events crystallize as a decision. There is no doubt, that is, that, in contrast to his early work (Speech and Phenomena and Of Grammatology), Derrida in later writings recognizes that the experiential meanings do exist, but his legal theory claims that they are excluded from the chains of signifiers which represent forms. Indeed, Derrida describes such experienced meanings as justice. Fitzpatrick too associates individuality or ipseity with 'the determinate presence' or immediacy upon which 'the universals are dependent' (2005: 4). The experiential meanings become an object of consciousness in a decision. These intended objects render the forms determinate. That is, the forms gain content. Yet the presence or immediacy of author with a decision is only a moment in experiential time. As such, it cannot be signified as a universal inside the border of Recht – so long as we understand Recht as empty universals or forms. With this in mind, this may be what the guard of the doorway to the Castle of law meant when he ended the parable with the explanation that the doorway is only for the man from the country and no one else. If the man had been called to enter a doorway, some individual official would have had to make a determinate decision (Derrida and Dufourmantelle 2000: 61). The possibility arises that law would be other than form at that moment of decision (Fitzpatrick 2005: 6). The decision would determine the particular content of the form. Meaning-constituting acts of experiential knowledge would give body to such a determinacy. The determinate decision is lived. A decision about the forms depends upon this experiential event for its content. This being so, law – as a system of forms – needs to respond to the experienced exteriority in order to have determinacy. The experiential meanings of the man from the country incorporate that determinacy. Without the response of codified forms to the context-specific experienced event, we are left with a selfgenerating and self-defining system of signifiers which construct the deific state and then claim legitimacy by tracing the signifiers to the state as an empty form. This is the point where Fitzpatrick departs from Derrida. If officials, like the guard of the Castle, can never cross the boundary of the system of forms, the determinate legal decision is an unaccessed remainder to the system of laws as forms. For Fitzpatrick, the remainder is constituted from 295_07_Reading Modern Law.indd 112 24/1/12 15:48:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 113 the individuality of a decision. The individuality, being a determinate decision, concerns a social being-with others (Fitzpatrick 2005: 14–15). It involves being because the exterior pre-legality is unreified by the chains of legal signs. It involves being with, because the beings only exist with other strangers to the chains of signs. It seems that Fitzpatrick leaves this social relationship as a 'given' in his argument. He is thereby able to locate social relationships in the very justice that is experienced before the contentindependent forms are analysed (that is, decomposed). But because the forms are so dependent upon the pre-legal social relationships that law craves to enclose in determinate decisions – if only for a fleeting experienced moment – law must respond to unreified social relationships, according to Fitzpatrick. This is difficult for Derrida, because Derrida presupposes a territorial-like boundary that excludes the individuality of a decision (or intuition) as a remainder to laws as a system of forms. Such a boundary stands in the way of Law and of its discrete laws becoming Good. The Good, as a remainder, thereby exceeds the Law and laws (Derrida 1990: 257, quoted in Fitzpatrick 2005: 4). The territorial sense of legal knowledge I now wish to ask why it is that violence is considered part and parcel of Derrida's theory of law as a structure of forms. I wish to do so by claiming that the self-defining and self-sustaining system of forms presupposes a special sense of legal knowledge. Legal knowledge (about lois) and knowledge about law (as droit) presuppose a territorial-like boundary that separates familiar concepts from an unrecognizable chaos. This territorial knowledge is presupposed about the analysis of laws as empty forms. Such knowledge is ironically preconceptual . It is a priori, or prior to the positivity of concepts, facts, and values. The territorial knowledge assumes a special sense of space and of time. Territorial (as opposed to experiential) space exists as the enclosure of a wild territory by a border. A physical thing exists if it can be located and measured inside the boundary of the space. A thing can be located by objective standards of longitude and latitude. The thing can be measured by a land survey. The thing can be perceived as a physical-chemical mass in territorial space. Even the actions of a human being can be perceived as if locatable on a measurable space within the boundary. Now, it is a short step from such a sense of space as territorial or physical to a likened knowledge as possessing a territorial-like character. A territorial boundary demarcates an inside and from an outside. As Derrida describes the territorial-like knowledge, which pre-censors the foreigner, 'what is at issue . . . is once again the trace of a frontier between the public and the non-public, between public or political space and individual or familial home' (Derrida and Dufourmantelle 2000: 49–51). The foreigner 295_07_Reading Modern Law.indd 113 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 114 W. E. Conklin on the other side of the frontier of legal knowledge is neither a subject nor an object. Derrida describes this aporia in this manner: What is a foreigner? What would a foreign woman be? It is not only the man or woman who keeps abroad of the outside of society, the family, the city. It is not the other, the completely other who is relegated to an absolute outside, savage, barbaric, precultural, and prejuridical, outside and prior to the family, the community, the city, the nation, or the State. The relationship to the foreigner is regulated by law, by the becoming-law of justice. This step would take us back to Greece, close to Oedipus and Socrates, if it wasn't already too late. (ibid.: 73) The frontier of legal knowledge dwells in a twilight between the familiar forms inside the boundary of territorial knowledge and the chaos that remains unrecognized beyond the boundary. Subjectivity is believed to be situated in such a chaos. Law must be and remains objective so long as officials analyse the boundaries of forms. Permit me to suggest several contexts where the common law presupposes territorial knowledge. First, constitutional law is preoccupied with the study of the boundary of legal knowledge. So too, federalism law has accepted territorial knowledge as the key to constitutionality. When constitutional bills of rights address whether to recognize the foreigner, the bills of rights presuppose just such a boundary between the language of rights on the one hand and pre-conceptual experiential knowledge on the other. If legal officials picture the being as outside the boundary of constitutional rights, the being remains nameless and her or his or its voice silent. Second, territorial knowledge is also manifested in the radical title of the state to territory. Property is private to the state because, as a legal claim, the form of property represents all territory which is possessed and controlled within a territorial boundary. So too, private property is recognized as legal knowledge because the property is believed to possess a territorial-like boundary, which mirrors the territorial boundary that physically demarcates myself from yourself. Third, even custom is juridified if it can be pinpointed as located on a territorial space and on the calendar date. If so pinpointed, custom is existent with a name (signifier). Both the custom and the culture with which it is identified must have a recognizable name. Interestingly, indigenous cultures began to take on names and on the distinct recognition of a 'tribe' after the Europeans pressed North American inhabitants further and further west, at least to the Rocky Mountains (Albers 1996: 90–118). Territorial knowledge recognizes the identity of beings. As Anne Dufourmantelle writes, '[T]his geography leads throughout the seminar to the revelation of the question 295_07_Reading Modern Law.indd 114 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 115 'Where?' as being the question of man' (Derrida and Dufourmantelle 2000: 52). The point that needs emphasis is that time only begins when the claim to knowledge inside a territorial boundary is established and space only exists as a legal condition once there is such a claim to territorial knowledge. Without such a boundary it is difficult for a legal official to speak of knowing the stranger. The consequence of this territorial sense of time and space is that one knows something if that thing has a name which is recognized inside the 'known' boundary of knowledge. Knowledge is territorial. Officials recognize concepts, including the rule (i.e. concept) of recognition, from inside the territorial-like boundary of knowledge. The official's or philosopher's personal opinion about the content of a concept matters little. Such a personal opinion is something external to the boundary of knowledge. What matters is whether a form is recognizable inside the territorial-like boundary of knowledge. A concept itself is also territorial-like intra vires or ultra vires. And yet the boundary, being humanly constructed, presupposes a rupture or gap between the inside of legal knowledge and outside the wall. Territorial knowledge is prior to the possibility of the vacuous foundation (droit) of the system of forms (lois) as a whole. There is another consequence of the territorial sense of knowledge. If a being inhabits a territory on the other side of territorial space, that being is a foreigner, a stranger, an alien (Conklin 2006a). The being is unrecognized and unrecognizable as a legal person with rights and duties. The being is undefined by statutory or common law rights and duties. Territorial knowledge needs this unrecognizable foreigner in order to maintain the boundary and frontier of legal knowledge. For there to be an inside and an outside, an intra vires and ultra vires, legal persons and aliens, citizens and non-citizens, familiar rules and unfamiliar rules, law and justice – for there to be such dichotomies, there has to be a territorial-like boundary that severs the inside from the outside. This boundary is so steadfast in our thinking that Derrida describes it and accepts it as 'the law of the law' (Derrida and Dufourmantelle 2000: 65). Derrida ironically seems to accept the boundary as an uncontrollable law – as a natural law, that is. These two consequences of territorial knowledge are most obviously highlighted in the doctrine of terra nullius or 'vacant land', for example. When the Europeans began to settle in Australia, New Zealand, North and South America, and Africa, they brought with them this territorial-like sense of knowledge. Concepts such as the concepts of territorial control and entitlement to property required a fixity in a structure of knowledge. Since the indigenous societies were predominantly nomadic to the west of present-day south-western Ontario and James Bay and east of the Rockies (Albers 1996: 116), it is difficult to invariably describe an indigenous sense of territoriality as associated with a geographical fixity on land. Exclusivity, let alone title to property, hardly characterizes the sense of knowledge of 295_07_Reading Modern Law.indd 115 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 116 W. E. Conklin nomadic groups. And yet, without a sense of the fixed and exclusive possession of territory it is difficult to understand how indigenous nomadic societies possessed private property, individual rights, and autonomous nations. Along similar lines, if the indigenous community lacked a semblance of a centrally organized government whose single leader the European military officials could identify with as an equal, treaties with such a community tended to lack a binding character upon the European party to the treaty. Such a territorial view of legal knowledge confers title to territory. The state owns 'ultimate title' or 'underlying title', as property, of all territory that it possesses and symbolically controls. States even extend this knowledge claim, of recent days, to the territorial space of the Arctic Ocean and the moon. The entitlement to the territory includes all resources, land, plants, and animals on, under, and above the territory. The best that strangers, unrecognized inside the territorial-like structure of forms, can claim is an 'inchoate' usufructory right to property. Interestingly, the usufructory right is a term adopted by Roman lawyers to describe the rights of slaves to possess, but not own, things.6 If space can only exist if there is a boundary surrounding a territory, and if indigenous societies did not share such a sense of space or institutionalize their life-worlds in terms of territorial knowledge, the European states could consider the settled lands as terra nullius or vacant even though many millions inhabited the territory prior to the transmission of disease and killing by Europeans. With the belief that legal knowledge was constrained by territorial-like boundaries, legal reasoning could even generate what the foreigners looked like as 'social fact'. Legal reasoning could also generate the foundation of the territorial knowledge. This construction of foreigner and of foundation could be maintained as objective fact and as consistent with the rule of law because officials only claimed knowledge within the territorial-like boundary. The boundary of territorial knowledge required that officials imagine the foreigner and the foundation as the inversion of their self-image as officials in a legal order. This inversion underlies Fitzpatrick's comment that civilization imagined itself as 'the kind of society which no longer recognizes any alternative to itself' (2004: 122, quoting Bauman 2001: 99). The consequence is that violence threatens a legal order from within legal language, not from without (Fitzpatrick 2001a: 292). The rule by laws unknowingly disguises violence against the pre-conceptual experiential knowledge as well as against the strangers whom the laws will not recognize with a name. Valid laws are intra the vires. Invalid laws are ultra vires. This territorial-like knowledge impacts upon contemporary legal reasoning. Like the Law (droit) as a whole, each discrete form has a boundary within which the form has a universal scope. The unknowable is preconceptual . What extends beyond the form's boundary is the unknowable world. Each discipline has its own territorial-like boundary. Legal reasoning 295_07_Reading Modern Law.indd 116 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 117 excludes bodily intuitions, feelings, attitudes, and other 'subjectivist' phenomena as extra-legal, political or moral. Being outside legal knowledge, such extra-legal experiential phenomena are considered arbitrary and chaotic for the legal professional. Such non-legal factors in legal reasoning represent an absence of the possibility of law and of practical reason. We lack names for such a pre-conceptual world. More correctly, we do confer a name on the pre-conceptual world, and that is the name 'power'. Power is juxtaposed with law; the pre-conceptual pre-legal world on the other side of the threshold of knowledge is juxtaposed with the acts of intellectualization inside the threshold. We officials must protect the possibility of a prelegal world. It is our secret: this has been the social function of the professional North American law school. Officials can, at best, attempt to escape from the prison-house of language by picturing the unreified world on the other side of the frontier by a metaphor. Professional knowers of the familiar signifying relations take the standpoint of the knowable structure, not of the heterology of the voices of strangers on the other side of the border, when picturing the unreified world. The heterologous voices of the stranger, as Derrida (and Merleau-Ponty) emphasize, are silent (Derrida and Dufourmantelle 2000: 25–35). The analysis of forms as laws forgets the language of the foreigner on the other side of the rupture between the familiar and the unknowable, in advance. This pre-censorship of the heterology of voices, as Hart hints in his legal theory and in his private life, causes an 'indefinable anxiety' (Hart 1994: 87; Lacey 2004: 26). The silent voice of the stranger exterior to the threshold of territorial knowledge is 'that terrible thing which opens language to its own beyond' (Derrida 1985: 76). And so, to take one example, and only as an example, international law presupposes territorial knowledge as a legal space that pre-exists the lawyer and legal critic. The boundary that makes this space possible legitimates the space as well as the rules, doctrines, and other forms, such as the state, which are locatable inside the boundary of legal space as knowable things. This territorial boundary of legal and moral knowledge remains manifested in the international law doctrine of domaine réserve whereby the territorial state alone has legitimacy to decide who is a citizen, who may enter its territorial borders, and whom it may expel from its borders. Unless categorized within the boundary of legal knowledge, a being is excluded from legal entitlement of certain rights and duties. One is an 'alien'. This is even so in many judicial decisions if one is habitually resident in the territory of the state for a long period of time. Indeed, the state officials enclose legal space within a structure of concepts such as the concept of property. This prior legitimizing territorial-like boundary was taken for granted in the early modern view of international law: international law existed, according to Fitzpatrick, 'from an already-encompassing scheme of things within which the nations found their existence' (2008a: 279). 295_07_Reading Modern Law.indd 117 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 118 W. E. Conklin This already-existing scheme was attributed to natural law, in the early modern period. Fitzpatrick (ibid.: 289) rightly quotes from Zygmunt Bauman (1989: 53) to describe the more recent colonial world as 'fully and exhaustively divided into national domains . . . [with] no space left for internationalism'. This pre-existing division of the globe into legal spaces whose territorial-like boundaries set the limit to legal knowledge continues to the present day. Territorial knowledge prevents any transcendent commonality between the inside and the exteriority. Boundaries have separated legal persons (and therefore legal knowledge) throughout the globe. The boundaries render legal knowledge possible. And human beings invariably fail to be recognized as legal persons inside and outside the territorial boundary of many states. Aside from the legal recognition of foreigners, territorial knowledge provides the background to our usual sense of freedom as negative. John Stuart Mill recognized this point in the context of his social philosophy as well as in his international legal theory. A boundary protected the territorial-like 'inner sphere of life' of an individual (Mill 1848/1970: 306). Inside the boundary the individual was free to choose and to act unless the individual caused harm by crossing the boundary of familiarity to the incomprehensible world of foreigners. At that point, one's acts were 'other-regarding' and, therefore, open to social scrutiny of the harm caused to other beings (Mill 1859/1962: 129). Mill (1984: 111–24) extended this image of territorial knowledge to the interrelations of the territorial state. My point for raising this example of territorial knowledge in international law is to emphasize how territorial knowledge reinforces the disguised violence of discrete forms as well as of the ultimate foundation of the forms. The universalist claim of the ultimate foundation of a secular legal order – the state – absorbed the universalism of the medieval Christendom (see especially Fitzpatrick 2006b). Legal philosophers from Bodin to Hart have acknowledged the need both to ground law in something external to knowable legal rules (the state of nature, the general will, the People, social facts) and, at the same time, to describe the system of rules as 'autonomous, enclosed in itself, coherent in itself, and, in a sense above all, self-generating' (Fitzpatrick 2009: 5). To this end, the rule of law (the rule by law) is an all-or-nothing matter: either self-contained forms or, alternatively, externalized unknowable chaos. In either case, power relations determine the outcome of disputes. Law is juxtaposed to power and power to law. If I am right that territorial knowledge is presupposed in the argument that the foundation of law (droit) and the forms (lois) of law are vacuous, then violence is part and parcel of the rule by laws – so long, that is, as we retain territoriality as the paradigm of knowledge. And so, the best that we can do within the boundary of territorial knowledge is to imagine the strangeness on the other side of the boundary of 295_07_Reading Modern Law.indd 118 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 119 familiar concepts. Knowledge of the stranger is a territorial knowledge. The stranger is pictured. And the picture offers a typified form rather than a crossing of the form's boundary to the concrete experienced events of a concrete context-specific being, to the particularity of a decision by an official heror himself. This ontic character of legal reasoning about strangers is necessary once we accept that knowledge exists within a territorial-like boundary. Anything that does not come within the universal has to be 'utterly antithetical' or of a 'totally different existence' (Fitzpatrick 2003c: 11). One has to picture or imagine the totally different existence that the selfdefining law has failed to enclose. The picture re-presents the stranger in terms that are familiar to officials of the state. One cannot know the nonform, this being the individuality of an experienced event by the stranger or even by the official. The interrelated system of forms, better known as primary and secondary rules, without a picture of the stranger outside the boundary of the system, cannot be known. One cannot know the stranger's language except through our own configurations of signifier and form inside the make-believe wall of territorial knowledge. Nor can one know the rule of law, as a form, without picturing its opposite: rational chaos. Lawyers and judges have to imagine what it would be like without private property, the association of morality with legal rights, the juridification of lived experiences, a secular state, and centralized institutions. Thus, the radical stranger, as antithetical to law, is an optic product because the officials 'perceive' the stranger as inverted to their own self-image as professional knowers of forms. Early common law judgements and authorities (e.g. Blackstone, Adam Smith), contemporary judges (Brennan and Lamer), and legal philosophers (John Austin and Hart) share such an optic vision of the stranger. They are 'undeveloped' or 'primitive'. So, given the theological origin of law in a secularized ideology and given the self-defined universalism of a form, anything outside the boundary of the form has to be included. The universalist aspiration of the form is undermined if the exterior is not included. What is not included within the boundary of knowledge remains alien to the system of forms. The outside offers a challenge for assimilation or conquest. The consequence is that laws are invariably violent against groups and individuals who do not share the content of the forms. The self-generating and self-regulative legal forms require that law must resist the very possibility of something or someone radically strange to the forms (see Fitzpatrick 2003a: 219–21; 2003b: 438–46; 2003c: 10–16; 2008a: 181–6). Forms enclose everything, and yet can never fully enclose everything. The remainder resists the forms. The latter remainder resists the forms. Fitzpatrick explains the necessary resistance as follows: If it [law] were not coherent but contradictory, something else could resolve the contradiction. If it were not closed but open, then something else could enter and rule instead of or along with law. If it were 295_07_Reading Modern Law.indd 119 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 120 W. E. Conklin incomplete and not a whole corpus juris and thence necessarily related to something else, then that something else could share in the ruling with law. Finally, a law which in any of these situations is not going to be dependent upon something else must also be of self-originating and self-regulating. (2003b: 432) Accordingly, law must either resist or conquer the 'utterly antithetical' chaos and indeterminacy on the other side of law (Fitzpatrick 2003c: 11).7 And so, here, we find a paradox. On the one hand, law must resist the radical strangeness of individuality in order to sustain its universality. On the other hand, law must respond to this radically antithetical strangeness for law to be determinate in content. In the absence of such a response there remains something unrecognized 'out there', far beyond the boundary of the universal legal forms. But this remainder contradicts and undermines the very identity of law as empty forms. The radical strangeness to forms is, drawing from well-known Kafka's parable, before the law – 'before' because particular experiences, such as K's, are, as I read Kafka, unreified by the territorial knowledge of the decisions of professional knowers. The territorial knowledge of justice Now, once we entertain that forms attempt to assimilate yet forms need the exteriorized justice (as the heterology of meant or embodied objects) in order to be determinate, we must ask whether Derrida's theory of law is well taken. In order to respond to this issue, let us gain a better idea of what is the justice that Derrida considers external to territorial knowledge. To this end, Fitzpatrick offers four contexts. First, the rule by law conceals the violence that the legal structure perpetuates against infinite individualities that Derrida has associated with justice. Second, so long as professional knowers believe in the deific foundation, the legal structure cannot possibly represent or manifest a social bonding (Fitzpatrick 2001c: 6; 2005: 14). After all, the legal structure is constituted from empty universals and the determinate decision is an individuated decision. There might be 'Being with', as Heidegger and Ben-Dor (Ben-Dor 2007) claim, but such a Being is inexpressible and inaccessible if we are limited to our ontic picture of the Being on the other side of the territorial boundary between law and the stranger. Such an idealized 'Being-with', however, is hardly what Fitzpatrick has in mind when he uses the term 'being with' as the remainder of law. Third, forms, as universals, lack an incorporation of the pre-conceptual objects, which the third (the judge) means (in Husserl's sense of meant objects in his Logical Investigations).8 This absence of meant objects also characterizes the languages of beings who lack legal recognition. Although the Greeks used the term 295_07_Reading Modern Law.indd 120 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 121 nomos to represent the drawing of a territorial boundary in the sand, nomos also represented the emotions and beliefs experienced by a group (Fitzpatrick 2001c: 211–12, 221). In a fourth context, Kafka's parable of the man from the country raises the prospect of the individuality of the one's experiences and the inability of the guard to the castle of law to allow the man to enter the universals of law through the doorway especially made for him (see Derrida 1992: 191, discussed in Fitzpatrick 2005: 9). Further, as I have already observed of H. L. A. Hart (1994: 87), a dread overcomes the jurist and philosopher who faces the prospect that concepts do not control decisions (see also Lacey 2004). Today, philosophers describe this dread of individuality as idiosyncratic, subjective, arbitrary, and the like. Now, what is interesting is that for Derrida, justice is the very presence or immediacy, which in his earlier works he had argued was inaccessible to language (Derrida 1973). For Derrida, forms lack an immediate bonding or presence of the individual with the forms (see especially Fitzpatrick 2005: 6). Yet Husserl had claimed that just such a bonding of utterer with signifiers characterizes acts of embodied meaning. The bonding is manifested in an intuition. This intuition characterizes a decision. Because experience, expressed as meaning rather than as signification (the signifier/ signified relation), determines a decision, law, as signified forms, excludes the 'distinctiveness' of 'the singularity of lived experience' (Fitzpatrick 2009). This excluded, yet necessary, determinacy ironically begs that we study the role of phenomenology in le droit as well as in des lois. We cannot know law without knowing the experiential pre-conceptual world that territorial knowledge has excluded as unknowable. Fitzpatrick has a different name for this phenomenology: the 'sociologic' or 'meta-ethics' (2003b: 444).9 Territorial knowledge has so far presupposed a rupture between the forms of territorial knowledge and the experiential meanings best manifested in intuition or a decision. The question I raise is whether there is another sense of legal knowledge, one that does not require a leap from Verstand to phenomena or from phenomena to Verstand. After all, as von Uexküll urged, 'the secret of the world is to be sought not behind objects [such as indeterminate forms], but behind subjects' (1926: 29). Such subjects embody determinate meant objects. My point bears repeating. As legal officials we tend to recognize the stranger by assimilating the stranger into the metaphysical boundaries of concepts, the concepts being rights, duties, and rules. This act of juridification leaves the language of the stranger unassimilated. The sociability of the stranger remains uncodified. I have elaborated the complexity of this uncodified sociability elsewhere (Conklin 1998: 222–48).10 This social bonding is experienced as immediacy without the intervention of concepts. A determinate decision cannot represent what is not enclosed within its concepts. Accordingly, sociability characterizes the presence of unreified beings that the coded rules, representing forms, do not and 295_07_Reading Modern Law.indd 121 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 122 W. E. Conklin cannot access inside the boundary of territorial knowledge. Legality depends upon this sociability because, contrary to the whole thrust of contemporary analytical jurisprudence that concepts can be and are reasons for action, 'in law' ' "no existing, coded rule can or ought to guarantee absolutely" in advance [of] the outcome of any decision' (Derrida 1990: 251, quoted in Fitzpatrick 2009: 17). That Derrida even acknowledges presence or immediacy as important for an understanding of law is interesting, given his claim that just such a presence lies at the core to the philosophy of metaphysics. One needs to be mindful of Derrida's critique of presence throughout his works about language. The unrepresented presence of sociability is really 'a law of originary sociability, prior to all determined law, qua natural law or positive law, but not prior to law in general' (Derrida 1997: 231, quoted in Fitzpatrick 2005: 7, emphasis in original). The 'law in general', of course, is composed of the empty universals. Of course, once the foundation is exposed as vacuous, we are left with the social belonging that is other than transcendent, content-independent forms. Derrida understands justice as otherwise than content-independent forms. Justice, for Derrida, is excised from the metaphysics of forms (Fitzpatrick 2005: 6). Fitzpatrick makes an analytic argument as to why law must respond to justice in Derrida's sense of justice. First, Fitzpatrick restates Nancy's point that an excluded singularity cannot be with another singularity without the pre-existence of both the included and excluded singularities. An ontological community thereby exists in a far deeper sense than 'man as a social being' (Nancy 1991: 28).11 Next, Fitzpatrick draws from Davidson, who explains that different entities can only be distinct and yet have a relation with each other 'if there is a common coordinate system on which to plot them' (Davidson 1985: 130, quoted in Fitzpatrick 2008a: 289). Fitzpatrick reverses this idea by suggesting that if different entities are things-in-themselves and yet are beingwith each other, then the only commonality possible is external to sameness. Thus, a community 'as a continuate being-with cannot be contained within any existent realization of it . . . it must ever extend receptively beyond present existence, otherwise it will not be able to continue "in being" ' (ibid.: 289). So, law forever responds to the excluded 'being-with' that remains unrealized in empty universals at any one determinate moment. A law, considered an empty form, depends upon what is excluded from it for its determinate content. For example, both the universal and general laws of the colonial states and the universal ius gentium of international law are empty of content by virtue of their claim to universality. And yet they are dependent upon the absent infinite individualities of aboriginal peoples and of the particular ethe of nations for their content. This being so, 'this vertiginous alternation' between the (posited formal) law on the one hand and then its determinate response to the 'existently singular' of 'being-with' on the other is the 'pointed place for [justice as] access' (Fitzpatrick 2005: 14). 295_07_Reading Modern Law.indd 122 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 123 This argument holds only so long as we share Derrida's sense of laws as empty forms, however. Given the universal as a metaphysical construct, given the emptiness of such a universal, and given that the universal is signified in writing, these three conditions necessitate that singularity be excluded upon the positing of the legal decision. Justice is thereby derived from the exteriority on the other side of the territorial-like boundary of law. But such formalist law presupposes the territorial sense of knowledge. What is recognized as a universal is signified inside the territorial boundary of the familiar. The walled construction is signified in writing vis-à-vis speech. Such a view of legal knowledge reinforces the territorial sense of law and, accordingly, of justice. What remains unrecognized is excluded as non-law. The experiential body of the third is also excluded. But if lived experiences remain untouched by legal forms, does not this raise the need to reconsider the identity of laws as discrete, content-independent universals? Is not experiential knowledge important in understanding 'what is a determinate law'? And if this is so, is there some sense of law otherwise than universal forms? Regrettably, space (territorial space) prevents me from elaborating a theory of law as social content (see Conklin 2008). Derrida, it bears reminding, relies heavily upon Kant's moral and legal works for Derrida's own understanding of the identity of law. For Kant, again, a universal transcends social phenomena by virtue of its emptiness of social-cultural content. A universal, however, is a norm whose content is shared in an ethos. The function of the decision-maker is to identify the presupposed reciprocal social relations in the content of a form and then to address whether those reciprocal relations are coherent with the said relations in the ethos of which formal laws are only one element (see Conklin 2008: 83–112, 156–87). Hegel argues, rightly, that the critical issue is not 'what is law?' but 'what identified form is legitimate?' A determinate decision does not exist as a legally binding decision unless the meant, as opposed to signified, objects of its content manifests a reciprocal recognition of beings. This view of the legitimacy of law undermines Derrida's legal formalism. More, this view of the legitimacy of Law and of laws explains on my terms (rather than Fitzpatrick's) why Law and laws must respond to justice as Derrida (and Fitzpatrick) understand justice. Discrete determinate decisions (including Derrida's concern for determinacy in a decision) cannot exist without such a determinate decision being legitimate. And the legitimacy of a law, in turn, depends upon the reciprocal recognition of individuals as presupposed in the content of a discrete form. Laws do not exist, that is, without the very content that Kant excludes from the universal form of das Recht and that Derrida believes only arrives on the scene in the decidability of an official's reasoning about empty forms. If Hegel's understanding of discrete laws is compelling, then the antithetical chaos, savagery, and feminine – the locus of experiential 295_07_Reading Modern Law.indd 123 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 124 W. E. Conklin time and space – is not dependent upon the universal form of the foundation such as the state or humanism. Rather, determinate laws are nested in the experiential and shared meanings of a pre-legality. This pre-legality has heretofore been excluded from 'the law' and from the study of law in the analytic tradition. This is so both analytically and phenomenologically before universal forms are ever posited as the starting point of the philosophy about the nature of law. Accordingly, the secret of determinate laws lies in the subject's constitution and fulfilment of meanings. The exposure of such a secret, though, begs that one inquire into the legitimacy of universals. If inquiry proceeds behind such forms to the subject's constitution and fulfilment of embodied meaning, it may be that such meaning provides the determinacy that has heretofore been excluded from law. Once we reconsider Derrida's understanding of law and of laws as empty forms, a whole series of issues is begged. Most importantly, 'does the judge as "the third" address justice, as lived experiences, when the third makes a determinate decision?' And if so, 'are determinate decisions rendered with reference to standards that are not posited but rather are constituted from the intentional acts of the third (that is, of the lived acts of meaning according to Husserl)?' A phenomenology of the pre-legal world undermines Derrida's theory of law. As a consequence, the phenomenology of the pre-legal world is the call for justice. The contemporary professional knower of 'legal' signs has been satisfied with the positing of social facts or with the justification of forms nested in posited beliefs and values. Until the rich writings of Fitzpatrick are recognized, jurists and philosophers will continue to bury their heads in the sand and to close their eyes as if blind to the vacuity of the foundation of a legal structure. The problem is especially critical because of the risk that we forget that we have even forgotten the vacuity of the foundation of a modern legal order and thereby the excision of the pre-legality from legal recognition. If one forgets an experience, one can remember it (sometimes with the aid of a therapist). But if one forgets that one ever forgot the experience, one can never remember it. We have claimed to be lawyers and legal philosophers who know how to imagine the outside but we do not know what we have been talking about. We have been content with the decomposition of concepts as signified by the analytic methodology. And yet, 'There is still here a primary assertion of the bounded to which a ranging beyond remains tethered. There has to be yet more. Nomos cannot be positioned only in the bounded but must somehow extend intrinsically to an "outside" ' (Fitzpatrick 2001c: 221). The outside is inside – that is, the officials and philosophers of the state themselves posit who is outside, a foreigner, to a legal order, and the outside is derived from the inside of territorial knowledge. A phenomenology of the pre-legal world has been introduced elsewhere (Conklin 1998, 2006a, b, 2008). What I need to emphasize at this 295_07_Reading Modern Law.indd 124 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 125 point is that experiential knowledge raises the prospect that the identity of law radically differs from the empty forms with which Derrida derives his understanding of laws. For just as lived meanings embody the stranger's, as K's, individuality upon which legal forms depend, so too the professional knower incorporates meant or experienced objects that determine one's decisions. Such meant objects radically differ from the posited determinate standards that officials and legal philosophers have heretofore taken for granted as objectivity. Such determinate standards are meant. And meant objects are shared in the collective memories of an ethos. Meant objects are not the same as perceived or posited objects. Meant objects are concealed inside the forms that Derrida takes for granted as the essence of law. Such meant objects draw from bodily experiences rather than from the objectivity of the signifier/form relations with which Derrida identifies le droit and les lois. The issue is whether embodied meanings in an ethos play a role in the identity of law and of laws. Are the objects of experiential knowledge shared in such a deep and self-conscious way that one can speak about social bonding and a social ethos as integral parts of laws? And if a form's content is determinate – that is, if the phenomenology of meaning constitutes determinate forms – does sociability still dwell exterior to the law? Justice is access, just as Fitzpatrick claimed. But the access is directed towards the intentional acts of the official, just as access also addresses the intentional acts of non-officials. Shared intentional meanings constitute the social bonding that legitimizes the content of determinate decisions. Derrida's sense of law sets out such bonding as somehow another law that differs from the Kantian empty universals. But such formalism is hardly recognizable as a system of laws precisely because forms are not legal units if their content lacks legitimacy and if legitimacy addresses the reciprocal relations of individuals in an ethos presupposed by the content of a form's boundaries. Territorial knowledge fails to address such a possibility because territorial knowledge posits a boundary between the inside and outside, formalism and social-cultural ethos, universal and individuality, law and justice. Without an inquiry into the content of the inside – of the forms and universals – the territorial-like boundary misdirects what is law and, therefore, of law's call for justice. Notes 1 I explain this point in more detail in Conklin (2001: 37–55). 2 See, for example, Kramer (2007: 16, 75) and Leiter (2007: 55, 101, 133, 258). For Hart's view, see Hart (1977: 969). According to Hart, the pre-legal experience of social bonding 'haunts much legal thought' (1994: 87) as if it were 'a chain binding those who have obligations so that they are not free to do what they want'. Hart acknowledged that pre-theoretical differences might well have explained why Hart and Fuller saw the world so differently: 'I am haunted by 295_07_Reading Modern Law.indd 125 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 126 W. E. Conklin the fear that our starting-points and interests in jurisprudence are so different that the author and I are fated never to understand each other's work' (1983: 343). Nicola Lacey (2004) describes how Hart dreaded the intervention of experience into rationality in his day-to-day life. 3 On this point, see, for example, Derrida (1990: 233, 245, 254, 275; 1992: 191, 194; 1994: 28, 190; 2002: 3–18) and Derrida and Dufourmantelle (2000: 69–73, 147–51). Fitzpatrick incorporates the problematic as Kant's in many of his writings (see, for example, Fitzpatrick 2005: 11). 4 This notion is generally explained in Conklin (2008: 95–9). 5 This is explained in more detail in Conklin (2008: 99–112, 162–87). 6 Although the slave could use the peculium as a source of capital income and, over time, could amass sufficient funds, the slave could not own property (see Borkowski and du Plessis 2005: 96–7). 7 Here, the resistance is not to law nor against law but of law. Modern law must resist its antithetical alien, the experience of individuality. 8 A meant object is generated from the act of meaning of the individual's experiential body. This contrasts with an object that is posited by a source external to such an act of meaning. Edmund Husserl explains this distinction in his Logical Investigations (1970), and the distinction is elaborated in Conklin (1998: 30, 103, 207). 9 The possibility of understanding law as such ethicality in the content of legal forms is addressed in further detail in Conklin (2008: 169–87). 10 This sociability arises because an individual, by heror himself, does not exist unless she or he relates to other beings, according to Fitzpatrick (2006b: 82). 11 Fitzpatrick cites Nancy's analysis on several occasions. References Albers, P. C. (1996) 'Changing patterns of ethnicity in the northeastern plains', in J. D. Hill (ed.) History, Power and Identity: Ethnogenesis in the Americas, 1492–1992, Iowa City: University of Iowa Press. Bauman, Z. (1989) Modernity and the Holocaust, Cambridge: Cambridge University Press. Bauman, Z. (2001) The Individualized Society, Cambridge: Polity Press. Ben-Dor, O. (2007) Thinking about Law: In Silence with Heidegger, Oxford: Hart. Borkowski, A. and du Plessis, P. (2005) Textbook on Roman Law, 3rd edn, Oxford: Oxford University Press. Conklin, W. (1993) 'Teaching critically within a modern legal genre', Canadian Journal of Law and Society 8: 33–57. Conklin, W. (1996) 'The trace of legal idealism in Derrida's grammatology of law', Philosophy and Social Criticism 22: 17–42. Conklin, W. (1998) Phenomenology of Modern Legal Discourse, Aldershot, UK: Dartmouth. Conklin, W. (2001) Invisible Origins of Legal Positivism, Dordrecht: Kluwer. Conklin, W. (2006a) 'A phenomenological theory of the human rights of the alien', Ethical Perspectives 13: 245–301. Conklin, W. (2006b) 'Lon Fuller's phenomenology of language', International Journal for Semiotics of Law 19: 93–125. Conklin, W. (2008) Hegel's Laws: The Legitimacy of a Modern Legal Order, Stanford, CA: Stanford University Press. 295_07_Reading Modern Law.indd 126 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 127 Davidson, D. (1985) 'On the very idea of a conceptual scheme', in J. Rajchman and C. West (eds) Post-analytic Philosophy, New York: Columbia University Press. Derrida, J. (1973) 'Differance', in Speech and Phenomena and Other Essays on Husserl's Theory of Signs, trans. D. B. Allison, Evanston, IL: Northwestern University Press. Derrida, J. (1974) Of Grammatology, trans. G. Chakravorty Spivak, Baltimore: Johns Hopkins University Press. Derrida, J. (1985) The Ear of the Other: Otobiography, Transference, Translation, trans. P. Kamuf, ed. C. McDonald, Lincoln: University of Nebraska Press. Derrida, J. (1987) 'The laws of reflection: Nelson Mandela, in admiration', in J. Derrida (ed.) For Nelson Mandela, New York: Saver Books. Derrida, J. (1989) 'Psychic inventions of the other', in L. Waters and W. Godzich (eds) Reading de Man Reading, trans. C. Porter, Minneapolis: University of Minnesota Press. Derrida, J. (1990) 'Force of law: The "mystical foundation of authority" ', trans. M. Quaintance, Cardozo Law Review 11: 919–1045; reprinted in J. Derrida (2002) Acts of Religion, ed. Gil Anidjar, New York: Routledge [citations are to the latter translation]. Derrida, J. (1992) 'Before the law', in D. Attridge (ed.) Acts of Literature, New York: Routledge. Derrida, J. (1994) Specters of Marx, New York: Routledge. Derrida, J. (1997) Politics of Friendship, trans. G. Collins, London: Verso. Derrida, J. (2002) Ethics, Institutions, and the Right to Philosophy, trans. and ed. P. Trifonas, Lanham, MD: Rowman & Littlefield. Derrida, J. and Dufourmantelle, A. (2000) Of Hospitality, trans. R. Bowlby, Stanford, CA: Stanford University Press. Fitzpatrick, P. (1990) 'Custom as imperialism', in J. M. Abun-Nasr, U Spellenberg, and U. Wanitzek (eds) Law, Society and National Identity, Hamburg: Helmut Buske Verlag. Fitzpatrick, P. (1992) Mythology of Modern Law, London: Routledge. Fitzpatrick, P. (1998) 'Traversing terra nullius: Legal origins and Freudian fictions', Law, Text, Culture 4: 18–47. Fitzpatrick, P. (2001a) 'Consolations of the law: Jurisprudence and the constitution of deliberative politics', Ratio Juris 14: 281–97. Fitzpatrick, P. (2001b) 'Magnified features: The underdevelopment of law and legitimation', in I. Pardo (ed.) Morals of Legitimacy: Between Agency and System, Oxford: Berghahn Books. Fitzpatrick, P. (2001c) Modernism and the Grounds of Law, Cambridge: Cambridge University Press. Fitzpatrick, P. (2001d) 'Why the law is also nonviolent', in A. Sarat (ed.) Law, Violence and the Possibility of Justice, Princeton, NJ: Princeton University Press. Fitzpatrick, P. (2002) ' "No higher duty": Mabo and the failure of legal foundation', Law and Critique 13: 233–52. Fitzpatrick, P. (2003a) 'Breaking the unity of the world: Savage sources and feminine law', Australian Feminist Law Journal 19: 47–60, reprinted in P. Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism, Burlington, VT: Ashgate [citations are to the latter reprint]. Fitzpatrick, P. (2003b) ' "Gods would be needed . . .": American empire and the rule of (international) law', Leiden Journal of International Law 16: 429–66. 295_07_Reading Modern Law.indd 127 24/1/12 15:48:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 128 W. E. Conklin Fitzpatrick, P. (2003c) ' "In God we trust" can relieve us of trusting each other', The Believer 3: 63–72, reprinted in P. Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism, Burlington, VT: Ashgate [citations are to latter reprint]. Fitzpatrick, P. (2004) 'Terminal legality? Human rights and critical being', in P. Fitzpatrick and P. Tuitt (eds) Critical Beings: Law, Nation and the Global Subject, Aldershot, UK: Ashgate. Fitzpatrick, P. (2005) 'Justice as access', Windsor Yearbook of Access to Justice 23: 3–16. Fitzpatrick, P. (2006a) 'Righteous empire', Unbound: Harvard Journal of the Legal Left 2: 1–18. Online, available at: www.law.harvard.edu/students/orgs/ unbound/articles/2UNB001-Fitzpatrick.pdf. Fitzpatrick, P. (2006b) ' "What are the Gods to us now?": Secular theology and the modernity of law', Theoretical Inquiries in Law 8: 161–90. Fitzpatrick, P. (2008a) 'Latin roots: Imperialism and the making of modern law', Clave: Counterdisciplinary Notes on Race, Power and the State. Online, available at: www. clave.org/latinroots.pdf; reprinted in P. Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism, Burlington, VT: Ashgate [citations are to the latter reprint]. Fitzpatrick, P. (2008b) Law as Resistance: Modernism, Imperialism, Legalism, Burlington, VT: Ashgate. Fitzpatrick, P. (2009) 'Law as theory: Constitutive thought in the formation of (legal) practice', Socio-Legal Review 5: 1–20. Hart, H. L. A. (1977) 'American jurisprudence through English eyes: The nightmare and the dream', Georgia Law Review 11: 969–89. Hart, H. L. A. (1983) 'Lon L. Fuller: The morality of law', in H. L. A. Hart, Essays in Jurisprudence and Philosophy, Oxford: Clarendon. Hart, H. L. A. (1994) Concept of Law, 2nd edn, Oxford: Clarendon. Husserl, E. (1970) Logical Investigations, trans. J. N. Finley, vol. 2, London: Routledge & Kegan Paul. Husserl, E. (2001) Logical Investigations, vol. 2, trans. J. N. Findlay, London: Routledge [first published in German in 1900–1]. Kafka, F. (1988) 'The problem of our laws', in Collected Short Stories of Franz Kafka, trans. W. Muir and E. Muir, London: Penguin. Kant, I. (1797/1996) Metaphysics of Morals, trans. M. Gregor, Cambridge: Cambridge University Press. Kramer, M. H. (2007) Objectivity and the Rule of Law, Cambridge: Cambridge University Press. Lacey, N. (2004) A Life of H. L. A. Hart: The Nightmare and the Noble Dream, Oxford: Oxford University Press. Leiter, B. (2007) Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy, Oxford: Oxford University Press. Mill, J. S. (1859/1962) On Liberty, ed. M. Warnock, Glasgow: William Collins. Mill, J. S. (1848/1970) Principles of Political Economy, ed. D. Winch, London: Penguin Books. Mill, J. S. (1984) 'A few words on non-intervention', in J. Robson (ed.) Essays on Equality, Law and Education – Collected Works of J. S. Mill, vol. 2, Toronto: University of Toronto Press. Mostert, H. and Fitzpatrick, P. (2004a) ' "Living in the margins of history on the edge of the country": Legal foundation and the Richterveld community's title to land', Journal of South African Law 2: 309–23. 295_07_Reading Modern Law.indd 128 24/1/12 15:48:52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Derrida's territorial knowledge of justice 129 Nancy, J. L. (1991) The Inoperative Community, ed. P. Connor, Minneapolis: University of Minnesota. R. v. van der Peet [1996] 2 Supreme Court Reports 507. Uexküll, J. von (1926) Theoretical Biology, trans. D. L. Mackinnon, London: Kegan Paul. Žižek, S. (1991) For They Know Not What They Do: Enjoyment as a Political Factor, London: Verso. 295_07_Reading Modern Law.indd 129 24/1/12 15:48: