Derrida: Law

This essay is an exploration of the relationship between Agamben’s 1995 text, Homo Sacer, and Derrida’s 1992 “Force of Law” essay. Agamben attempts to show that the camp, as the topological space of the state of exception, has become the biopolitical paradigm for modernity. He draws this conclusion on the basis of a distinction, which he finds in an essay by Walter Benjamin, between categories of life, with the “pro-tagonist” of the work being what he calls homo sacer, orbare life—life (...) that is stripped of its humanity and value. Five years earlier, in 1990, Derrida had given a lecture at UCLA in which he had analyzed the very same essay by Benjamin and had highlighted the distinction between “base life” and “just life.” The implications of his analysis show a discomforting prox-imity between Benjaminian messianism and the Nazi “final solution,” a conclusion that Agamben dismisses entirely. Inthis paper, however, I demonstrate that the structures of the two works are quite similar in many important ways. I argue that, though the broad scope of Agamben’s work is original in many respects, and I would not wish to reduce Agamben’s work to Derridean repetitions, he nevertheless utilizes much more of Derrida’s analysis, specifically with respect to the categori-zation of life, than he would like the reader to believe. (shrink)

Derrida zielt mit „Gesetzeskraft“ auf eine Reflexion der komplexen Bedingungsstruktur normativer Praktiken überhaupt, für die rechtliche Praktiken auf besondere Weise erhellend sind. Am Falle des Rechts kann deutlich werden, dass Normativität an ihrem Grund sowie in ihrer Anwendung und Durchsetzung wesentlich auf eine Dimension der Kraft oder Gewalt verwiesen ist. Kraft ohne Gerechtigkeit wäre tyrannisch, aber Gerechtigkeit ohne Kraft bleibt unwirksam. Am Recht zeigt sich so nach Pascal, dass man „Gerechtigkeit und Kraft (Gewalt) zusammenstellen [muß], damit was gerecht und angemessen (...) auch stark und kräftig“ ist. Indem Derrida das gespannte Verhältnis von Gesetz und Kraft genauer entwickelt, legt er eine Auffassung von Normativität frei, die über die dominanten Entgegensetzungen von (1.) Naturrecht und Positivismus, (2.) Gesetz und Willkür, (3.) allgemeiner Norm und besonderem Fall hinausweist. (shrink)

The reviewer connects Derrida's Gloss of the Genesis event to the book under review and discusses the topic of the book under review as an important site for discussing our zeitgeist.

My thesis offers a philosophical and psychological examination of our ability to forgive strangers post-atrocity. Forgiveness is often considered impossible because atrocities involve unforgivable violations of moral values. Viewed through the lens of deconstruction, however, it is precisely where forgiveness seems impossible that it becomes possible, and more importantly, necessary in order to curb the desire for vengeance. Granting this radical understanding of the value of forgiveness---the ability to forgive the unforgivable---what hinders our ability to forgive? My work focuses on (...) public vindictiveness towards Karla Homolka, who was released in 2005, having served her 12-year sentence for her role in the rape and murder of 14-year-old Leslie Mahaffy and 15-year-old Kristen French. My thesis aims to show how reflective engagement with forgiveness can tell us something about ourselves as ethical persons by demonstrating how and why our ongoing resentment towards others is often morally unjustified. (shrink)

At the beginning of Derrida's ‘Before the Law’, a reading of Kafka's story with that title, is an epigraph from Montaigne's Essays: ‘… science does likewise (and even our law, it is said, has legitimate fictions on which it bases the truth of its justice)…’. Derrida again refers to this quotation in ‘Force of Law’, asking what a ‘legitimate fiction’ might be and what it would mean to establish the basis for the truth of justice. With reference to these writings (...) on the status of narrative and the law, as well as to other texts by Derrida, this paper examines the story of the judge-penitent in Camus' The Fall and, in particular, this ironic reading of the aporetic experience of standing ‘before the law’. What does the narrative, The Fall, entail? Camus writes that the man who speaks in this text is involved in a ‘calculated confession’. How are the borders between truth and fiction, justice and the law, negotiated in this reckoning ‘before the law’? (shrink)

Ce travail a pour objectif d'analyser les reflexions ä propos du droit et de la justice faites par Jacques Derrida et Gianni Vattimo. L'objectif principal est de mettre l'accent sur les traits dominants qui distinguent ces reflexions quand elles touchent aux exigences de la praxis (juridique, ethique, politique), ä laquelle les deux philosophes s'adressent de fagon differente. D'un cöte, il y a la deconstruction deridienne, qui denonce le manque de fondement du droit, sa violence originelle, et au moyen d'une double (...) seance et un double mouvement se deplace en un exercice intellectuel lucide, radical et incessant; de l'autre, l'ontologie faible [debole) et nihiliste du philosophe italien dont la proposition est une hermeneutique qui n'en reste pas ä la phase de la denonciation mais veut "faire justice", de fagon pratique et concrete, en essayant d'affaiblir et de reduire peu ä peu la violence originelle du droit. (shrink)

The foundations of law have been the object ofintense philosophical scrutiny since antiquity.Most importantly, it has been asked whetherthere are really any foundations other thansheer force to be found once more comfortingillusions are abandoned. This paperinvestigates four influential theorists ofradical legal philosophy and postmodern thought who dealwith this problem in comparable ways despitetheir different theoretical outlooks. Themerits of these theories having been assessed,mentalism in ethics and law is introduced as apossible alternative to both the widespreadfoundationalism of the past and theanti-foundationalism (...) of the postmodern present. (shrink)

Neo- pragmatists Richard Rorty and Stanley Fish have recently argued that philosophy has no consequences for legal practice (except, in the case of Fish, insofar as it carries rhetorical force). They have asserted not only that philosophy cannot provide absolute metaphysical foundations for legal practice, but also that philosophy cannot be used to criticise law. This essay examines Fish and Rorty's reasons for denying the practical force of philosophy. Although I agree with Rorty and Fish's non-foundationalism, I argue that in (...) practice lawyers employ discursive categories and concepts that can be described as philosophical. I suggest also that philosophy has a critical function and that the characterization of philosophy offered by these theorists amounts to a conservative assertion of the formal completeness and substantive justice of existing liberal legal systems. Against Fish and Rorty, I argue and selectively demonstrate that lawyers can usefully draw upon 'public ironists' such as Nietzsche, Foucault and Derrida to criticise and improve upon extant legal practices. S. Afr. J. Philos. Vol.22(1) 2003: 82-97. (shrink)

A recent collection of essays,Feminist Perspectives on Law and Theory,is here taken as the starting point for an analysis of the political trajectory of feminist jurisprudence. The ‘new wave’ of feminism borrows much of its inspiration from continental theory – from Derrida, Deleuze and Irigaray – and has been subject to criticism for its attention to language and its turn towards culture and aesthetics. Reviewing the materialist bases of the new wave, and particularly its concern with the immediacies of the (...) body and events, it is argued here that it represents a return to the radicalism of feminist legal theory. (shrink)

RESUMEN Se estudia el vínculo entre literatura y derecho en el pensamiento de Jacques Derrida. Se indican algunos recorridos de lectura y se dilucida lo que se entiende por literatura como institución, y su vínculo y alcances en relación con el plagio y con el derecho a decirlo todo en literatura. ABSTRACT The paper examines the connection between literature and law in the thought of Jacques Derrida. On the basis of certain readings, it explains literature as an institution, as well (...) as its relation and significance with respect to plagiarism and the right to say anything in literature. (shrink)

In this article the author explores Jacques Derrida’s reading in The Purveyor of Truth of Edgar Allan Poe’s The Purloined Letter. In his essay, Derrida proposes a reading which differs markedly from the interpretation proposed by Lacan in his Seminar on ‘The Purloined Letter’. To appreciate Derrida’s reading, which is not hermeneutic-semantic in nature like that of Lacan, it is necessary to look at the relation of Derrida’s essay to his other texts on psychoanalysis, more specifically insofar as the Freudian (...) death drive is concerned. The present article explores this ‘notion’ as elaborated on by Freud in Beyond the Pleasure Principle as well as Derrida’s reading of this text. It also investigates the importance of the ‘notion’ of the death drive as well as the significance of Derrida’s reading of The Purloined Letter for constitutional interpretation. (shrink)

Tracing the sign -- Signing the trace -- The messianic without messianism -- Mourning terminable and interminable : law and (commmodity) fetishism -- Justice, law, and Antigone's singular act -- Generalizing the economy of fetishism.

In his 1992 text ‘Force of Law’ Jacques Derrida makes the radical claim that the aura of law’s legitimacy is always achieved by virtue of an ideological sleight of hand. I argue that the radicality of this claim does not lie in its abandonment of the rule of law, nor is this claim a call to political quietism. Rather, Derrida charges us with the responsibility of interrogating the moments of law’s force or ideology. Following this suggestion I argue that one (...) important way that the law has maintained its aura of legitimacy is on the basis of an ideological appeal to the presumed natural or transparent nature of sexual complementarity. Through a reading of Hegel’s use of the Greek mythological Antigone, I argue that one important way that the im possibility of the necessary encounter between law and the singular case has been covered over, is by way of an appeal to the presumed naturalness of heterosexuality. The conclusion of my analysis is that the illusion of law’s legitimacy is not necessarily achieved with reference to the feminine, nor by virtue of an appeal to the transparency of heterosexuality, but it is no coincidence that it has been achieved in this way so often in the history of political philosophy either. However, no matter how the illusion of law’s legitimacy is achieved, it will always require a sleight of hand; it will always be ideological and therefore political. This analysis therefore serves as an example of how deconstruction can be mobilized as much more than a philosophical meditation on the impossibility of justice; rather, it offers a mode of analysis of critical importance to social and legal theorists. Key Words: Antigone • Derrida • Hegel • sexual difference. (shrink)

Derrida often insists that ethics must be the experience and encounter of a certain impossible. A proposition all the more troubling, as it is proposed by Derrida in the context of a return precisely to the conditions of possibility of ethics. It will appear that returning to the possibilities of ethics implies a return to its limits, to its aporias, which are both constitutive and incapacitating, possibilizing and impossibilizing. The purpose of this paper is to begin exploring this aporetic structure (...) of ethics and to identify how it is tied to the impossible. I will pursue this inquiry by reconstituting how Derrida appropriates Heidegger's expression of "possibility of the impossible," and by reconstituting the aporias of the law, of moral decision, of responsibility, and of an ethics of hospitality as welcome of the event of otherness. ABSTRACT FROM AUTHOR]; Copyright of Research in Phenomenology is the property of Brill Academic Publishers and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to alls.). (shrink)

This article provides a critical evaluation of Ben Golder’s and Peter Fitzpatrick’s recent Foucault’s Law, which it characterizes as a decisive intervention into both legal theory and Foucault scholarship. It argues in favour of Golder’s and Fitzpatrick’s effort to affirm the multiplicity of Foucault’s work, rather than treat that work as either unified by a consistent position or broken into a series of relatively stable periods. But it also argues against Golder’s and Fitzpatrick’s analysis of Foucault’s understanding of the law (...) through a conceptual framework borrowed from Derrida, and especially Derrida’s distinction between law and justice. It shows how this approach to reading Foucault effectively transforms some of his more powerful criticisms of the law into defences of justice. In place of this interpretation, the second half of this paper initiates a reading of Foucault’s later work on ethics and the self in the ancient world. It develops the theme of an ethics, or a way of life, that takes shape at a distance from politics on the one side and law on the other. (shrink)

…: ainsi faict la science ; . Un titre résonne parfois comme la citation d'un autre titre. Mais dès lors qu'il nommerait autre chose, il ne citerait plus simplement, il détournerait l'autre titre à la faveur d'un homonyme. Tout cela n'irait jamais sans quelque préjudice ou usurpation.

The purpose of this volume is to rethink the questions posed by Derrida's writings and his unique philosophical positioning, without reference to the catch phrases that have supposedly summed up deconstruction.

The paper reconstructs Luhmann’s conception of legal argumentation and justice especially focussing on the aspects of contingency and self-referring operative closure. The aim of his conception is to describe/explain in a disenchanted way—from an external, of “second order” point of view—the work on adjudication, which, rather idealistically, lawyers and judges present as being a matter of reason. As a consequence of some surface similarities with Derrida’s deconstructive philosophy of justice, Teubner proposes integrating the supposed reductive image of formal justice described (...) by Luhmann with the ideal conception of justice presented by Derrida. Here this kind of attempt is rejected as epistemologically wrong. In addition, Luhmann’s theory is argued to have other shortcomings, namely: the failure to understand the pragmatic function of principles, and the incapacity to describe the current legal questions linked with cultures and legal pluralism, which characterise our society. (shrink)

The European Legacy, Volume 17, Issue 3, Page 399-400, June 2012.

Indigenous peoples face a number of hurdles intaking cases to Australian law courts. In thecase that the social and economic problems canbe overcome, they face problems related to theintellectual structures of the court and thelanguage and philosophical beliefs that thecourt systems are based on. Derrida shows thatWestern metaphysics privileges speech overwriting, and this counts against indigenouscultures in which narrative knowledge is a formof writing. Due to this privileging, there is adifferend involving the courts and indigenouspeoples which makes the achievement of (...) justicedifficult in the legal arena in Australia. Thisarticle questions whether the courts are thecorrect bodies to deal with indigenous issues.The achievement of justice is made moredifficult again by the truth-producing effectsof legal decisions, which render native titleas a weaker form of property right. Finally,indigenous Australians are caught in a catch-22situation, in which in order to receivejustice, they must Westernise their thought toadapt to the court system, and yet not allowany Westernisation of their culture. Such aWesternisation can be forced upon indigenouspeoples by the truth-producing effects oflanguage. (shrink)

This article uses a close reading of Jacques Derrida’s short work Archive fever: A Freudian impression (1996), in order to show the structural impossibility for law and the wider legal system to protect itself from the destabilising effects of deconstruction. It shows law’s inability to stabilise/close the system and hence its inability to ‘assure order’.

Deconstruction both by its friends and enemies has come to be associated with a set of cliches that completely misunderstands its ethical aspiration. It is particularly within the field of law that we can see the ethical force of deconstruction, and also illuminate its concrete and practical importance. In The Philosophy of the Limit Drucilla Cornell examines the relationship of deconstruction to questions of ethics, justice and legal interpretation. She argues that renaming deconstruction "the philosophy of the limit" will allow (...) us to be more precise about what deconstruction actually is philosophically and hence to articulate more clearly its significance for law. Cornell explores the ethical and juridical significance of the so-called postmodern rebellion against metaphysics. A shared ethical rebellion links philosophers as different as Theodor Adorno, Jacques Derrida, Jacques Lacan, and Emmanuel Levinas. Together they present a new ethical configuration, new in its difference from both the critical social theory of J$u$urgen Habermas and the analytic jurisprudence of Nagel and Rawls. A key aspect of this newness is the centrality given to the relationship between questions of ethics and sexual difference. Cornell argues that the appeal of Lacan's analysis to feminists is that it helps to explain the profound hold the gender hierarchy has over Western culture, including its theories of political transformation. Under a Lacanian analysis the law of gender identity will be replicated in the laws of an existing legal system. This means that we cannot hope to sustain legal reforms unless the gender hierarchy is challenged. Cornell examines Derrida's position on the significance of the gender hierarchy in philosophy and explores its ethical and political importance. Derrida's intervention against legal positivism has important implications for the legal reforms necessary to protect marginalized groups. His emphasis on the limit, she argues, is crucial to thosewhose well-being and very lives may depend on legal transformation, women and homosexuals, for example. In an important contribution to legal philosophy, Cornell explores the affinities of Derrida's writings with recent liberal analytic jurisprudence. She also explores the differences. Comparing Rawls's and Derrida's accounts of justice, she argues that Derrida gives greater attention to the necessary utopian moment in his insistence on maintaining the divide between law, established norms, and justice. Cornell's focus on the importance of the limit and the centrality of the gender hierarchy allows her to offer a view of jurisprudence different from both critical social theory and analytic jurisprudence. As we watch the long-fought-for civil rights of women systematically overturned, we have reason to think about how the connections she makes shed light on an underlying truth of our social, political, and legal reality. (shrink)

Against a background of Heidegger's project of tracing the other back through the history of metaphysics, Derrida attempts to think the other as outside of identity or presencing philosophy. The other is neither present nor absent. The other is differance with an 'a'. In his important essay 'Differance', Derrida suggests that whereas difference presupposes identity, differance with an 'a' is a 'middle voice' which precedes and sets up the opposition between identity and non-identity. The soft 'a' refers to the production (...) of differences, and the 'differences between differences'. Derrida calls this preceding moment before metaphysics and before language 'the play of differ ences'. Key Words: Derrida • ethics • legal • phenomenology • semiotics. (shrink)

How to introduce 'politics' as a specific concept within a deconstructive style of thinking? In order to answer this question, this contribution compares Derrida with Laclau. According to the former the starting-point of a deconstructive style of thinking is différance. It links together the economic detour of homecoming and the relation to otherness. Laclau's analysis of politics as hegemonization within a situation of undecidability presupposes this notion of différance and can therefore be useful in introducing politics within a deconstructive style (...) of thinking. But there still is a major difference between Derrida and Laclau's decisionism: if différance as the relation without relation of economy and otherness cannot avoid decisions based on power in order to stabilize the social, these decisions are always marked by passivity and therefore deconstructible in the name of 'justice' that exceeds politics even if it takes place nowhere but within politics. Key Words: decisionism • . Derrida • . hegemony • . Laclau • . law. (shrink)

This paper revisits Giorgio Agamben’s text The Time That Remains and through a comparative analysis contrasts the author’s reading of St Paul’s Romans to relevant Derridean thematics prevalent in the text. Specific themes include language, the law, and the subject. I illustrate how Agamben attempts to revitalise the idea of philosophical anthropology by breaking away from the deconstructive approach. Agamben argues that language is an experience but is currently in a state of nihilism. Consequently, the subject has become lost; or, (...) more specifically, the subject and its object have not disappeared in language but through language. The resuscitation of experience is thus required to defeat this condition: only in language does the subject have its site and origin. Unlike deconstruction, which highlights an inherent paradox within a situation unearthing a questionable foundation, Agamben argues that, by investigating the “exception,” one finds neither a norm nor an inherent truth of the situation, but the confusion which surrounds them both. (shrink)

This new edition of Drucilla Cornell's highly acclaimed book includes a substantial new introduction by the author, which situates the book within current ...