Deconstruction and the possibility of justice

Citation preview

EDITED BY

ECONSTRUCTION

!AND!THEI OSSIBILITY USTICE EDITED

BY DRUCILLA CORNELL MICHEL ROSENFELD DAVID

GRAY

�) ��London

New York

•

CARLSON

Published in 1992 by Routledge An imprint of Routledge, Chapman and Hall, Inc. 29 West 35 Street New York, NY 10001 Published in Great Britain by Routledge 11 New Fener Lane London EC4P 4EE Copyright © 1992 by Routledge, Chapman and Hall, Inc.

Chapters 1, 2, 3, 4, 5, 6, 7, 8, 1 0, 1 1 , 14 copyright Cl l 990 in the names of the authors of the essays. Chapter 9 was previously published in Gregory Leyh, ed., Legal Hermeneutics (Univer­ sity of California Press). Copyright ttl 1 992 The Regents of the University of California. Reprinted with permission. Chapter 1 2 was previously published in Agnes Heller, Can Modernity Suroive?, and is reprinted with permission of the University of California Press and Polity Press (UK). Chapter 13 will appear in Alan Wolfe, Human Difference, forthcoming from the Uni­ versity of California Press, and is reprinted with permission. Printed in the United States of America on acid free paper. All rights reserved. No parr of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Library of Gongress Cataloging-in-Publication Data

!

Deconstruction and the possibility of justice I David Gray Carlson, Druc l la nell, and c l e e , ds. . Most of these papers were presented at a symposium held at the Benjamin N. Cardozo School of Law on October 1-2, 1989. Includes bibliographical references and index. ISBN 0-415-90303-3 (CL).-ISBN 0-415-90304-1 (PB) 1. justice 2. Law-Interpretation and construction. 3. Law and politics. 4. Derrida, jacques. I. Carlson, David (David Gray) II. Cornell, Drucilla. Ill. Rosenfeld, Michel. IV. Benjamin N. Cardozo School of Law. K246.D43 1992 91-34742 340'.11-dc20 CIP British Library Cataloging-in-Publication Data also available.

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Contents

vii ix

Acknowledgments Introduction

LY @

Law, Violence and justice Force o f Law: The " Mystical Foundation of Authority" jacques Derrida The Philosophy of the Limit: Systems Theory and Feminist Legal Reform Drucilla Cornell

3 68

Deconstruction and Legal Interpretation

(JJ �

5

@ 7

The Idolatry of Rules: Writing Law According to Moses, With Reference to Other jurisprudences Arthur j. jacobson

95

Deconstruction and Legal Interpretation: Conflict, Indeterminacy and the Temptations of the New Legal Formalism Michel Rosenfeld

152

Judgment After the Fall Barbara Herrnstein Smith

211

In the Name of the Law Samuel Weber

232

Forms Charles M. Yablon

2511

v

vi I Contents

Comparative Perspectives on Justice, Law and Politics 8

On the Margins of Microeconomics David Gray Carlson

265

�

Hermeneutics and the Rule of Law Fred Dallmayr

283

Laying Down the Law in Literature: The Example of Kleist J. Hillis Miller

305

Statistical Stigmata Henry Louis Gates

330

Rights, Modernity, Democracy Agnes Heller

346

13

Algorithmic Justice Alan Wolfe

361

14

Conditions of Evil Reiner Schiirmann (translated from the French by Ian Janssen)

387

Index

404

11

Acknowledgments

This volu me grows out of a symposium entitled Deconstruction and the Possibility of Justice, held at the Benjamin N. Cardozo School of Law on October 1 - 2, 1 989. Most of the papers in this volume were presented at that conference. The proceedings of that conference are published in volume 1 1 of the Cardozo Law Review pp. 9 1 9 - 1 7 26. We gratefully acknowledge the permission of the Cardozo Law Re­ view to reprint portions of some of the papers here. This conference was made possible through the generosity of Jacob Burns, who has founded the Jacob Burns Institute for Advanced Legal Studies. His generosity has made possible a series of ambitious inquir­ ies into philosophies and theories largely unfamiliar in the context of American legal studies, but which promise to have a profound impact on the way law is to be comprehended in the next century. One of these projects has already been published as Hegel and Legal Theory (D. Cornell, M. Rosenfeld and D. Carlson eds. 1 99 1 ).

Introduction

To many, the very title of this book, Deconstruction and the Possi­ bility ofjustice, would seem to be an oxymoron. At least by its critics, deconstruction has been associated with cynicism toward the very idea of justice. Justice, so the story goes, demands reconstruction, not deconstruction. Yet even its critics recognize that deconstruction is, in some way, aligned with the marginalized. As we will see in these essays, they are not wrong in that assumption. The question then becomes whether what has been marginalized should remain marginalized. This ques­ tion indeed constitutes a reconstruction, as well as a deconstruction, of justice. Within literary studies we hear the same cry: deconstruction has brought in its wake the clamor for the recognition of many voices outside the traditional canon. The writing of people of different cul­ tures, nationalities, races and sexes are now given eJWil standing to the work of white men. And, deconstruction, so the story goes, is to blame. This is not to say that all of Derrida 's critics are uncritical defenders of the cultural establishment. "What should be" demands an appeal to some criteria of justice. Derrida's more liberal critics have focused on just this problem. They have insisted that even if one can appreciate deconstruction's alliance with the underdog, deconstruction cannot provide an ethical basis for this alliance, let alone argue the necessity of such an alliance. According to critics, the reason deconstruction cannot help in this enterprise is that it purportedly undermines the social consolidation that must take place if we are even to be able to speak to one another about standards of justice. This group of critics is not concerned with ix

x

I lntrodr.ction

the defense of the established order; they are concerned with justice and, correspondingly, with criteria for justification so we can deter­ mine which theory of justice is ethically better. These critics also as­ sociate deconstruction with a set of code phrases similar to that of the more conservative defenders of order. For them, deconstruction pur­ portedly undermines public reason, rejects communitarian standards of morality, mocks legality and denies even the possibility of shared reality given to us in language. Deconstruction is also accused of de­ bunking the validity of the very normative, social analysis that could explain oppression as oppression, rather than just harmless differen­ tiation among groups. 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 captured decon­ struction in a nutshell. Derrida's own essay, Force of Law: The "Mys­ tical Foundation of A uthority, " clearly expresses his philosophical commitment to justice. All the contributions in this volume refuse easy answers. As a result, we believe it can play an important role in deepening our understand­ ing of deconstruction and its relation to questions of law and justice. Perhaps, more importantly, we hope with this volume, to widen the horizon of how justice can and should be conceived. Drucilla Cornell Michel Rosenfeld David Gray Carlson -September 1991

Part One Law, Violence and Justice

1 Force of Law: The "Mystical Foundation of Authority"

jacques Derrida

C'est ici un devoir, je dois m 'adresser a vous en anglais.This is an obligation, I must address myself to you in English. The title of this colloquium and the problem that it requires me, as you say transitively in your language, to address, have had me musing for months. Although I've been entrusted with the formidable honor of the "keynote address," I had nothing to do with the invention of this title or with the implicit formulation of the problem. "Decon­ struction and the Possibility of Justice " : the conjunction "and" brings together words, concepts, perhaps things that don't belong to the same category. A conjunction such as "and" dares to defy order, tax­ onomy, classificatory logic, no matter how it works: by analogy, dis­ tinction or opposition. An ill-tempered speaker might say: I don't see the connection, no rhetoric could bend itself to such an exercise. I'd be glad to try to speak of each of these things or these categories ("deconstruction," "possibility," "justice") and even of these syncate­ goremes ("and," " the," "of"), but not at all in this order, this taxis, this taxonomy or this syntagm. Translated hy Mary Quaintance. The author would lik� to thank Sam W�ber for his help in the final revision of this text. Except for some footnotes added aft�r the fact, this text corresponds to the version distributed at the colloquium on "Deconstruction and the Possibility of Justice" (October 1989, Cardozo Law School), of which Jacqu�s Der·

rida read only the first pan 10 open the session. For lack of time, Derrida was unable to o.:oncl ude the elaboration of the work in progress, of which this is only a preliminary

version. In addition. the second part of the lecture, the part that precisely was not read but only discussed at the same colloquium, was delivered on April 26, 1 990, to open a

colloquium organized hy Saul Friedlander at the University of California, Los Angeles on Nazism and the "Firral Solutwn ": Probmg th� l.imits of Representation.

4 I The "Mystical Foundation of Authorit)'"

Such a speaker wouldn't merely be in a bad temper, he'd be in bad faith. And even unj ust. For one could easily propose an interpretation that would do the title justice. Which is to say in this case an adequate and lucid and so rather suspicious interpretation of the title'� inten­ tions or vouloir-dire. This title suggests a question that itself takes the form of a suspicion; does deconstruction insure, permit, authorize the possibility of justice? Does it make justice possible, or a discourse of consequence on justice and the conditions of its possibility? Yes, cer­ tain people would reply; no, replies the other party. Do the so-called deconstructionists have anything to say about justice, anything to do with it? Why, basically, do they speak of it so little? Does it interest them, in the end? Isn't it because, as certain people suspect, decon­ struction doesn't in itself permit any just action, any j ust discourse on justice but instead constitutes a threat to droit, to law or right, and ruins the condition of the very possibility of justice? Yes, certain people would reply, no, replies the other party. In this first fictive ex­ change one can already find equivocal slippages between law (droit) and justice. The "sufferance" of deconstruction, what makes it suffer and what makes those it torments suffer, is perhaps the absence of rules, of norms, and definitive criteria that would allow one to distin­ guish unequivocally between droit and justice. That is the choice, the "either/or," " yes or no" that I detect in this title. To this extent, the title is rather violent, polemical, inquisitorial. We may fear that it contains some instrument of torture-that is, a manner of interrogation that is not the most just. Needless to say, from this point on I can offer no response, at least no reassuring re­ sponse, to any questions put in this way ("either/or," "yes or no"), to either party or to either party's expectations formalized in this way. ]e dois, done, c'est ici un devoir, m'adresser a vous en anglais. So I must, this is an obligation, address myself to you in English. Je le dois . . that means several things at once. 1. Je dois speak English (how does one translate this "dois," this devoir? I must? I should, I ought to, I have to?) because it has been imposed on me as a sort of obligation or condition by a sort of sym­ bolic force or law in a situation I do not control. A sort of po/emos already concerns the appropriation of language: if, at least, I want to make myself understood, it is necessary that I speak your language, I must. 2. I must speak your language because what I shall say will thus be more juste, or deemed more juste, and be more justly appreciated, juste this time [in the sense of "just right,"] in the sense of an adequa­ tion between what is and what is said or thought, between what is said and what is understood, indeed between what is thought and said .

jacques Derrida I 5

or heard and understood by the majority of those who are here and who manifestly lay down the law. "Faire Ia loi" (laying down the law) is an interesting expression that we shall have more to say about later. 3 . I must speak in a language that is not my own because that will he more just, in another sense of the word juste, in the sense of justice, a sense which, without worrying about it too much for now, we can call juridico-ethico-political : it is more just to speak the language of the majority, especially when, through hospitality, it grants a foreigner the right to speak. It's hard to say if the law we're referring to here is that of decorum, of politeness, the law of the strongest, or the equi­ table law of democracy. And whether it depends on justice or law (droit). Also, if I am to bend to this law and accept it, a certain number of conditions a re necessary: for example, I must respond to an invi­ tation and manifest my desire to speak here, something that no one apparently has constrained me to do; I must be capable, up to a cer­ tain point, of understanding the contract and the conditions of the law, that is, of at least minimally adopting, appropriating, your lan­ guage, which from that point ceases, at least to this extent, to be for­ eign to me. You and I must understand, in more or less the same way, the translation of my text, initially written in French ; this translation, however excellent it may be (and I'll take this moment to thank Mary Quaintance) necessarily remains a translation, that is to say an always possible but always imperfect compromise between two idioms. This question of language and idiom will doubtless be at the heart of what I would like to propose for discussion tonight. There are a certain number of idiomatic expressions in your lan­ guage that have always been rather valuable to me as they have no strict equivalent in French. I'll cite at least two of them, before I even hegin. They are not unrelated to what I 'd like to try to say tonight. A. The fi rst is "to enforce the law," or "enforceability of the law or contract." When one translates "to enforce the law" into French, by "appliquer Ia loi," for example, one loses this direct or literal allusion to the force that comes from within to remind us that law is always an authorized force, a force that justifies itself or is justified in apply­ ing itself, even if this justi fication may be judged from elsewhere to be u njust or unjustifiable. Applicability, "enforceability," is not an exte­ rior or secondary possibility that may or- may not be added as a sup­ plement to law. It is the force essentially implied in the very concept of justice as law (droit), of justice as it becomes droit, of the law as "droit" ( fo r I want to insist right away on reserving the possibility of a justice, indeed of a law that not only exceeds or contradicts "law" (droit) but also, perhaps, has no relation to law, or maintains such a strange relation to it that it may just as well command the "droit "

6 I The "Mystical Foundation of Authority"

that excludes it). The word "enforceability" reminds us that there is no such thing as law (droit) that doesn't imply in itself, a priori, in the analytic structure of its concept, the possi bility of being "enforced," applied by force. There are, to be sure, laws that are not enforced, but there is no law without enforceability, and no applicability or enforce­ ability of the law without force, whether this force be direct or indi­ rect, physical or symbolic, exterior or interior, brutal or subtly discur­ sive and hermeneutic, coercive or regulative, and so forth. How ar.e we to distinguish between this force of the law, this " force of law," as one says in English as well as in French, I believe, and the violence that one always deems unj ust? What difference is there be­ tw�en, on the one hand, the force that can be just, or in any case deemed legitimate (not only an instrument in the service of law but the practice and even the realization, the essence of droit), and on the other hand the violence that one always deems unjust? What is a just force or a non-violent force? To stay with the question of idiom, let me turn here to a German word that will soon be occupying much of our attention: Gewalt. In English, as in French, it is often translated as " violence." The Benjamin text that I will be speaking to you about soon is entitled "Zur Kritik der Gewa/t," translated in French as "Cri­ tique de Ia violence " and in English as "Critique of Violence." But these two translations, while not altogether iniustes (and so not alto­ gether violent), are very active interpretations that don't do justice to the fact that fJewalt also signifies, for Germans, legitimate power, au­ thority, public force. Gesetzgebende Gewalt is legislative power, geist­ liche Gewalt the spiritual power of the church, Staatsgewalt the au­ thority or power of the state. Gewalt, then, is both violence and legitimate power, justi fied authority. How are we to distinguish be­ tween the force of law of a legitimate power and the supposedly ori­ ginary violence that must have established this authority and that could not itself have been authorized by any anterior legitimacy, so that, in this initial moment, it is neither legal nor illegal-or, others would quickly say, neither just nor unjust? I gave a lecture in Chicago a few days ago-which I'm deliberately leaving aside here, evcm though its theme is closely connected-devoted to a certain number of texts by Heidegger in which the words Walten and Gewalt play a decisive role, as one cannot simply translate them by either force or violence, especially not in a context where Heidegger will attempt to demonstrate his claim that originally, and for example for Heraclitus, Dike-justice, droit, trial, penalty or punishment, vengeance, and so forth-is Eris (conflict, Streit, discord, polemos or Kampf), that is, it is adikia, inj ustice, as well. We could come back to this, if you wish, during the discussion, but I prefer to hold off on it for now.

jacques Derrida I 7

Since this colloquium is devoted to deconstruction and the possibil­ itv of justice, my first thought is that in the many texts considered "deconstructive", and particularly in certain of those that I've pub­ lished myself, recourse to the word "force" is quite frequent, and in strategic places I would even say decisive, but at the same time always or almost a lways accompanied by an explicit reserve, a guardedness. I have often called for vigilance, I have asked myself to keep in mind the risks spread by this word, whether it be the risk of an obscure, substantialist, occulto-mystic concept or the risk of giving authoriza­ tion to violent, unjust, arbitrary force. I won't cite these texts. That would be self-indulgent and would take too much time, but I ask you to trust me. A first precaution against the risks of substantialism or irrationalism that I just evoked involves the differential character of force. For me, it is always a question of differential force, of difference as difference of force, of force as differance (differance is a force diffe­ ree-differante), of the relation between force and form, between force and signification, performative force, illocutionary or perlocutionary force, of persuasive and rhetorical force, of affirmation by signature, but also and especially of all the paradoxical situations in which the greatest force and the greatest weakness strangely enough exchange places. And that is the whole history. What remains is that I 've always been uncomfortable with the word force, which I 've often judged to be indispensable, and I thank you for thus forcing me to try and say a little more about it today. And the same thing goes for justice. There are no doubt many reasons why the majority of texts hastily identified as "deconstructionist"-for example, mine-seem, I do say seem, not to foreground the theme of justice (as theme, precisely), or the theme of ethics or politics. Naturally this is only apparently so, if one consid­ ers, for example, (I will only mention these) the many texts devoted to Levinas and to the relations between "violence and metaphysics," or to the philosophy of right, Hegel's, with all its posterity in Glas, of which it is the principal motif, or the texts devoted to the drive for power and to the paradoxes of power in Speculer-sur Freud, to the law, in Devant Ia loi (on Kafka's Vor dem Gesetz) or in Declaration d'Jndependance, in Admiration de Nelson Mandela ou les lois de Ia n!flexion, and in many other texts. It goes without saying that dis­ courses on double affirmation, the gift beyond exchange and distri­ b u tion, the undecidable, the incommensurable or the incalculable, or on singularity, difference and heterogeneity are also, through and through. at least obliquely discourses on justice. Besides, it was normal, foreseeable, desirable that studies of decon­ structive style should culminate in the problematic of law (droit), of law and justice. (I have elsewhere tried to show that the essence of law

8 I The "Mystical Foundation of Authorit)''

is not prohibitive but affirmative.) Such would even be the most proper place for them, if such a thing existed. A deconstructive interrogation that starts, as was the case here, by destabilizing or complicating the opposition between nomos and physis, between thesis and physis­ that is to say, the opposition between law, convention, the institution on the one hand, and nature on the other, with all the oppositions that they condition; for example, and this is only an example, that between positive law and natural law (the dif(era11ce is the displacement of this oppositional logic), a deconstructive interrogation that starts, as this one did, by destabilizing, complicating, or bringing out the paradoxes of values like those of the proper and of property in all their registers, of the subject, and so of the responsible subject, of the subject of law (droit) and the subject of morality, of the juridical or moral person, of intentionality, etc., and of all that follows from these, such a decon­ structive line of questioning is through and through a problematiza­ tion of law and justice. A problematization of the foundations of law, morality and politics. This questioning of foundations is neither foun­ dationalist nor anti-foundationalist. Nor does it pass up opportunities to put into question or even to exceed the possibility or the ultimate necessity of questioning, of the questioning form of thought, interro­ gating without assurance or prejudice the very history of the question and of its philosophical authority. For there is an authority-and so a legitimate force in the questioning form of which one m ight ask one­ self whence it derives such great force in our tr�dition. If, hypothetically, it had a proper place, which is precisely what cannot be the case, such a deconstructive "questioning" or meta­ questioning would be more at home in law schools, perhaps also­ this sometimes happens-in theology or architecture departments, than in philosophy departments and much more than in the literature departments where it has often been thought to belong. That is why, without knowing them well from the inside, for which I feel I am to blame, without pretending to any familiarity with them, I think that the developments in "critical legal studies" or in work by people like Stanley Fish, Barbara Herrnstein Smith, Drucilla Cornell, Sam Weber and others, which situates itself in relation to the articulation between literature and philosophy, law and politico-institutional problems, are today, from the point of view of a certain deconstruction, among the most fertile and the most necessary. They respond, it seems to me, to the most radical programs of a deconstruction that would like, in or­ der to be consistent with itself, not to remain enclosed in purely spec­ ulative, theoretical, academic discou rses but rather (with all due re­ spect to Stanley Fish) to aspire to something more consequential, to change things and to intervene in an efficient and responsible, though

jacques Derrida I 9

al ways, of course, very mediated way, not only in the profession but in what one calls the cite, the polis and more generally the world. Not, do ubtless, to change things in the rather naive sense of calculated, deli berate and strategically controlled intervention, but in the sense of maximum i ntensification of a transformation in progress, in the name of neither a simple symptom nor a simple cause (other categories are required here). In an industrial and hyper-technologized society, aca­ demia is less than ever the monadic or monastic ivory tower that in any case it never was. And this is particularly true of "law schools." I hasten to add here, briefly, the following th ree points: I . This conjunction or conjuncture is no doubt inevitable between, on the one hand, a deconstruction of a style more directly philosoph­ ical or motivated by literary theory and, on the other hand, juridico­ lirerary reflection and "critical legal studies." 2. It is certainly not by chance that this conjunction has developed in such an interesting way in this country; this is another problem­ urgent and compelling-that I must leave aside for lack of time. There are no doubt profound and complicated reasons of global dimensions, I mean geo-political and not merely domestic, for the fact that this development should be first and foremost North American. 3. Above all, if it has seemed urgent to give our attention to this joint or concurrent development and to participate in it, it is just as viral that we do not confound largely heterogeneous and unequal dis­ courses, styles and discursive contexts. The word "deconstruction" could, in certain cases, induce or encourage such a confusion. The word itself gives rise to so many misunderstandings that one wouldn't want to add to them by reducing all the styles of critical legal studies to one or by making them examples or extensions of Deconstruction with a capital " D." However unfamiliar they may be to me, I know that these efforts in critical legal studies have their history, their con­ text, and their proper idiom; in relation to such a philosophico­ Jeconstructive questioning they are often (we shall say for the sake of brevity) uneven, timid, approximating or schematic, not to mention hdated, although their specialization and the acuity of their technical competence puts them, on the other hand, very much in advance of whatever state deconstruction finds itself in a more literary or philo­ �ophical field. Respect for contextual, academico-institutional, discur­ sive specificities, mistrust for analogies and hasty transpositions, for confused homogenizations, seem to me to be the first imperatives the way things stand today. I hope in any case that this encounter will lea ve us with the memory of disparities and disputes at least as much as it leaves us with agreements, with coincidences or consensus. I said a moment ago: it only appears that deconstruction, in its

1 0 I The "Mystical Fotmdation of Authority"

manifestations most recognized as such, hasn't "addressed," as one says in English, the problem of justice. It only appears that way, but one must account for appearances, "keep up appearances" as Aris­ totle said, and that is how I'd like to employ myself here: to show why and how what is now called Deconstruction, while seeming not to "address" the problem of justice, has done nothing but address it, if only obliquely, unable to do so directly. Obliquely, as at this very mo­ ment, in which I'm preparing to demonstrate that one cannot speak directly about j ustice, thematize or objectivize justice, say "this is just" and even less "I am just," without immediately betraying justice, if not law (droit). • But I have not yet begun. I staned by saying that I must address myself to you in your language and announced right away that I 've always found at least two of your idiomatic expressions invaluable, indeed irreplaceable. One was " to enforce the law," which always re­ minds us that if justice is not necessarily la-.v (droit) or the law, it cannot become. j ustice legitimately or de jure except by withholding force or rather by appealing to force from its first moment, from its first word. "At the beginning of justice there was logos, speech or language," which is not necessarily in contradiction with another in­ cipit, namely, " In the beginning there will have been force." Pascal says it in a fragment I may return to later, one of his famous "pensees," as usual more di fficult than it seems. It starts like this: "Jus­ tice, force.-11 est juste que ce qui est juste soit suivi, il est necessaire que ce qui est le plus fort soit suivi." Uustice, force.-lt is just that what is just be followed, it is necessary that what is strongest be fol­ lowed" frag. 298, Brunschvicq edition) The beginning of this frag­ ment is already extraordinary, at least in the rigor of its rhetoric. It says that what is just must be followed ( followed by consequence, followed by effect, applied, enforced ) and that what is strongest must also be followed (by consequence, effect, and so on). In other words, the common axiom is that the j ust and the strongest, the most just as or as well as the strongest, must be followed. But this " must be fol­ lowed," common to the just and the strongest, is " right" ( "juste") in one case, "necessary" in the other: " I t is just that what is just be fol­ lowed" -in other words, the concept or idea of the just, in the sen"Se of justice, implies analytically and a priori that the just be "suivi," followed up, en forced, and it is just-also in the sense of "just right" -to think this way. "It is necessary that what is strongest be enforced." And Pascal continues: " La justice sans Ia force est impuissante" ("Justice without force is impotent")-in other words, justice isn't

Jacques Derrida I I I

justi ce, it is not achieve� ifi!_ci_o�s� 't have the force to be "enforced;" a powerless justice is not justice, in the sense of droit-"la force sans {t.l justice est tyrannique. La justice sans force est contredite, parce qu'il v u

toujours des mechants; Ia force sans Ia justice est accusee. II (aut ;feme mettre ensemble Ia justice et Ia force; et pour cela faire que ce qui est juste soit fort, ou que ce qui est fort soit juste" ( " force without

justi ce is tyrannical. Justice without force is contradictory, as there are osiJion of the law can't by definition rest on anything but the'!l��lve��yare themselves a violence without ground. Which is not to say that they are in themselves unjust, in the sense of "illegal_." They ar� neither legal nor illegal in their founding moment. They exceed the opposition between founded and unfounded, or between any foundationalism or anti-foundational ism. Even if the success of performatiyes that found law or right (for example, and this is more than an exampte;of a state as guarantor of a right) presupposes earlier co(!d_i_tions a11d conven­ tions (for example in the national or international arena), the same "mystical" limit will reappear at the supposed origin of said condi­ tions, rules or conventions, and at the origin of their dominant inter­ pretation. The structure I am describing here is a structure in which law (droit) is essentially deconstructible, whether because it Is- four1de0, con­ structed on interpretable and transformable textual strata (and that is d1enisfory of law [droit], its possible and necessary transformation, sometimes its amelioration), or because its ultimate foundation is by d'"efinition unfo-unded." The fact that law is deconstrucrible is not-bad ne-;;-·we may even see in this a stroke of luck for politics, for all historical progress. But the paradox that I'd like to submit for discus­ sion is the following: it is this deconstructible structure of law (droit), or if you prefer of justice as droit, that also insures the possibility of deconstruction. Justice in itself, if such a thing exists, outside or be­ yond law, is not deconstructi b le. No more than deconstruction itself,

Jacques Derrida I 1 5 d such a thing exists. Deconstruction i s justice. It i s perhaps because l.lw (droit) (which I will consistently try to distinguish -f��� justicef is constructible, in a sense that goes beyond the opposition between con-.: \ cntionand natu- re;lfi's-pe - r haps insofar as it goes. beyond thisoppo: .;irion th�ri t is constructible and so deconstructible and, what's more, that it makes deconstruction possible, or at teasl the practice of a de­ construction that, fundamentally, always procee4s to_ qu�stion�f droit and to the sub)ect of droit. ( 1 ) The deconstructibility of law idmit), of le.sality, legitimacy or legitimation (for examplermaJreS-ae­ construction possible. (2) The_ undeco-nstnidibility of justice also mak��p_ecqns!r!ICJ.io.n possible, indeed is inseparable from it. (3) the result: d�_const!uction takes place iii- rh� Interval that separ���s _�he undeconstructibility of j ustice from the aeconstructibility of droit (au­ thority, legitimacy, and so on). It is possible as an experience of the impossible, there where, even if it does not exist (or does not yet ex­ ist, or never does exist), there is justice. Wherever one can replace, translate, determine the x of justice, one should say: deconstruction is possible, as impossible, to the extent (there) where there is (uncle­ constructible) x, thus to the extent (there) where there is (the undecon­ structible). In other words, the hypothesis and propositions toward which I'm tentatively moving here call more for the subtitle: justice as the pos­ sibility of deconstruction, the structure of law (droit) or of the law, the foundation or the self-authorization of law (droit) as the possibility of the exercise of deconstruction. I'm sure this isn't altogether clear; I hope, though I 'm not sure of it, that it will become a linle clearer in a moment. I've said, then, that I have not yet begun. Perhaps I'll never begin and perhaps this colloquium will have to do without a "keynote," except th at I've already begun. I authorize myself-but by what right?-to multiply protocols and detours. I began by saying that I was in love with at least two of your idioms. One was the word "en­ forceabil ity," the other was the transitive use of the verb "to address." In French, one addresses oneself to someone, one addresses a letter or . 1 word, also a transitive use, without being sure that they will arrive at their destination, but one does not address a problem. Still less does one address someone. Tonight I have agreed by contract to address, in English, a problem, that is to go straight toward it and straight toward �·ou, thematically and without detour, in addressing myself to you in �·our language. Between law or right, the rectitude of address, direc­ tion and uprightness, we should be able to find a direct line of com­ munication and to find ourselves on the right track. Why does decon­ struction have the reputation, justified or not, of treating things

1 6 I The "Mystical Foundation of Authority"

obliquely, indirectly, with "quotation marks," and of always asking whether things arrive at the indicated address? Is this reputation de­ served ? And, deserved or not, how does one explain it? And so we have already, in the fact that I speak another's language and break with my own, in the fact that I give myself up to the other, a singular mixture of force, justesse and justice. And I am obliged, it is an obligation, to "address" in English, as you say in your language, infinite problems, infinite in their number, infinite in their history, infinite in their structure, covered by the title Deconstruction and the Possibility of justice. But we already know that these problems are not infinite simply because they are infinitely numerous, nor because they are rooted in the infinity of memories and cultures (religious, philosophical, juridical, and so forth) that we shall never master. They are infinite, if we may say so, in themselves, be­ cause they require the very experience of the aporia that is not unre­ lated to what I just called the " mystical." When I say that they require the very experience of aporia, I mean two things. (1) As its name in­ dicates, an experience is a traversal, something that traverses and trav­ els toward a destination for which it finds the appropriate passage. The experience finds its way, its passage, it is possible. And in this sense it is i mpossible to have a full experience of aporia, that is, of something that does not allow passage. An aporia is a non-road. From this point of view, justice would be the experience that we are not able to experience. We shall soon encounter more than one aporia that we shall not be able to pass. But (2) I think that there is no justice without this experience, however impossible it may be, of aporia. J..�stice is an e"perience of the impossible. A will, a desire, a demand for j ustice whose structure wouldn't be an experience of aporia would have no chance to be what it is, namely, a call for justice. Every time that something comes to pass or turns out well, every time that we placidly apply a good rule to a particular case, to a correctly subsumed ex­ ample, according to a determinant judgment, we can be sure that law (droit) may find itself accounted for, but certainly not justice. �Law (droit) is not justice. Law is the element of calculation , and it is just th at there be law, but justice is incalculable, it requires us to calculate with the incalculable; and aporetic experiences are the experiences, as i'!lprobable as they are necessary, of justice, that is to say of moments in which the decision between just -and unjust" is never insured by a rule. And so I must address myself to you and "address" problems, I must do it briefly and in a foreign language. To do it briefly, I ought to do it as directly as possible, going straight ahead, without detour, without historical alibi, without obliqueness, toward you, supposedly -

-

Jacques De"ida I 1 7

the primary addressees of this discourse, but at the same time toward

the place of essential decision for said problems. Address-as direc­

ti on, as rectitude-says something about droit (law or right) ; and what we must not forget when we want justice, when we want to be just, is the rectitude of address. II ne (aut pas manquf!r d'adresse, I might say in French, but above all il ne (aut pas manquer l'adresse, one mustn't miss the address, one mustn't mistake the address and the address always turns out to be singular. An address is always singular, idiomatic, and justice, as law (droit), seems always to suppose the generality of a rule, a norm or a universal imperative. � a_re we to rcconc:iJ����gQf justice that must always concern singularity, indi­ viduals, irreplaceable groups and lives, the other or myself as other, in a unique- s-ituation-, with rule, norm, value or the imperative of justice which _!!�ces_s_ar_ily _have a general fqrm, even if this generality pre­ scribes a singular aJmlication__in �acl!_ case? If I were content to apply a just rule, without a spirit of justice and without in some way invent­ ing the rule and the example for each case, I might be protected by law (droit), my action corresponding to objective law, but I would not be just. I would act, Kant would say, in conformity with duty, but not through duty or out of respect for the law. Is it ever possible to say: an action is not only legal, but also just? A person is not only within his rights but also within justice? Such a man or woman is just, a decision is just? Is it ever possible to say: I know that I am just? Allow me another detour. To address oneself to the other in the language of the other is, it seems, the condition of all possible justice, but apparently, in all rigor, it is 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 of an implicit third) but even excluded by justice as law (droit), inasmuch as justice as right seems to imply an element of uni­ versality, the appeal to a third party who suspends the unilaterality or singularity of the idioms. When I address myself to someone in English, it is always an ordeal for me. For my addressee, for you as well, I imagine. Rather than explain why and lose time in doing so, I begin in medias res, with se veral remarks that for me tie the agonizing gravity of this problem of language to the question of justice, of the possibility of justice. First remark: On the one hand, for fundamental reasons, it seems just to us to "rendre Ia ;ustice, " as one says in French, in a given idiom, in a language in which all the "subjects" concerned are supposedly competent, that is, capable of understanding and interpreting-all the " subjects," that is, those who establish the laws, those who judge and those who are judged, witnesses in both the broad and narrow sense,

1 8 1 The "Mystical Foundation of Authority "

all those who are guarantors of the exercise of justice, or rather of droit. It is unjust to judge someone who does not understand the lan­ guage in which the law is inscribed or the judgment pronounced, etc. We could give multiple dramatic examples of violent situations in which a person or group of persons is judged in an idiom they do not understand very well or at all. And however slight or subtle the differ­ ence of competence in the mastery of the idiom is here, the violence of an injustice has begun when all the members of a community do not share the same idiom throughout. Since in all rigor this ideal situation is never possible, we can perhaps already draw some inferences about what the title of our conference calls "the possibility of justice." The violence of this injustice that consists of judging those who don't understand the idiom in which one claims, as one says in French, that "justice est faite," ("justice is done," " made") is not just any violence, any injustice. This injustice supposes that the other, the victim of the language's injustice, is capable of a language in general, is man as a speaking animal, in the sense that we, men, give to this word lan­ guage. Moreover, there was a time, not long ago and not yet over, in which "we, men" meant "we adult white male Europeans, carnivo­ rous and capable of sacrifice." ln .the space in which I'm situating these remarks or reconstituting this discourse one would not speak of injustice or violence toward an animal, even less toward a vegetable or a stone. An animal can be made to suffer, but we would never say, in a sense considered proper, that it is a wronged subject, the victim of a crime, of a murder, of a rape or a theft, of a perjury-and this is true a fortiori, we think, for what we call vegetable or mineral or intermediate species like the sponge. There have been, there are still, many "subjects" among man­ kind who are not recognized as subjects and who receive this animal treatment (this is the whole unfinished history I briefly alluded to a moment ago). What we confusedly call "animal," the living thing as living and nothing else, is not a subject of the law or of law (droit). The opposition between just and unjust has no meaning in this case. As for trials for animals (there have been some) or lawsuits against those who inflict certain kinds of suffering on animals (legislation in certain Western countries provides for this and speaks not only of the rights of man but also of the rights of animals in general), these are considered to be either archaisms or still marginal and rare phenom­ ena not constitutive of our culture. In our culture, carnivorous sacri­ fice is fundamental, dominant, regulated by the highest industrial technology, as is biological experimentation on animals-so vital to our modernity. As I have tried to show elsewhere,� carnivorous sacri-

Jacques De"ida I 1 9

fice is essential to the structure of subjectivity, which is also to say to rhe founding of the intentional subject and to the founding, if not of rhe law, at least of law (droit), the difference between the law and law ( droit), justice and law (droit), justice and the law here remaining open over an abyss. I will leave these problems aside for the moment, along with the a ffinity between carnivorous sacrifice, at the basis of our cul­ ture and our law, and all the cannibalisms, symbolic or not, that struc­ ture intersubjectivity in nursing, love, mourning and, in truth, in all sv mbolic or linguistic appropriations. · If we wish to speak of injustice, of violence or of a lack of respect toward what we still so confusedly call animals-the question is more topical than ever, and so I include in it, in the name of deconstruction, a set of questions on carno-phallogocentrism-we must reconsider in i ts totality the metaphysico-anthropocentric axiomatic that domi­ nates, in the West, the thought of just and unjust. From this very first step we can already glimpse the first of its con­ sequences, namely, that a deconstructionist approach to the bounda­ ries that institute the human subject (preferably and paradigmatically the adult male, rather than the woman, child or animal) as the mea­ sure of the just and the unjust, does not necessarily lead to injustice, nor to the effacement of an opposition between just and unjust but may, in the name of a demand more insatiable than justice, lead to a reinterpretation of the whole apparatus of boundaries within which a history and a culture have been able to confine their criteriology. Under the hypothesis that I shall only touch lightly upon for the mo­ called deconstruction would not correspond ment, what is currently (though certaln- people have an interest in spreading this confusion) to a quasi-nihilistic abdication before the ethico-politico-juridical ques­ tion of justice and before the opposition between just and unjust, but rather to a double - movement that I will schematize as follows: I . The sen�� � f a re�ponsibility without limits, and so necessarily excessive, incalculable, before memory; and so the task of recalling the history, the origin and subsequent direction, thus the limits, of concepts of justice, the law and right, of values, norms, prescriptions that have been imposed and sedimented there, from then on remaining more or less readable or presupposed. As to the legacy we have re­ ceived under the name of justice, and in more than one language, the task of a historical and interpretative memory is at the heart of decon­ struction, not only as philologico-etymological task or the historian's task but as responsibility in face of a heritage that is at the same time the heritage of an imperative or of a sheaf of injunctions. Deconstruc­ tion is already engaged by this in � �ite demand of justice, for justiCe�

20 I The "Mystical Foundation of Authority "

which can take the aspect of this " mystique" I spoke of earlier. One must be ;uste with justice, and the first way to do it justice is to h·ea_r, i:ead, interpret it, to try to understand where it comes from, what it wants of us, knowing that it does so through singular idioms (Dike, Jus, ;ustitia, ;ustice, Gerechtigkeit, to limit ourselves to European idi­ oms which it may also be necessary to delimit in relation to others: we shall come back to this later) and also knowing that this justice always addresses itself to singularity, to the singularity of the other, despite or even because it pretends to universality. Consequently, never to yield on this point, constantly to maintain an interrogation of the origin, grounds and limits of our conceptuai, ·theoretiCal oiJ:iOrrii.auxe· apparatus surrounding justice is on deconstruction's part anything but a neutralization of interest in ·justice, an insensitivity towarCI iii-fustice. -b n the contrary, it hyperbolically raises the stakes of exacting justice; it is sensitivity to a sort of essential disproportion that must inscribe excess and inadequation in itself and that strives to denounce not only theoretical limits but also concrete injustices, with the most palpable effects, in the good conscience that dogmatically stops before any in­ herited determination of justice. 2. This responsibility toward memory is a responsibility before the very concept otresponsibility that regulates the justice and appro­ p�aienessTiustess e) of our behavior, of our theoretical, practical, ethico-political decisions. This concept of responsibility is inseparable from a whole network of connected concepts (property, intentionality, will, freedom, conscience, consciousness, self-consciousness, subject, self, person, community, decision, and so forth) and any deconstruc­ tion of this network of concepts in their given or dominant state may seem like a move toward irresponsibility at the very moment that, on the contrary, deconstruction calls for an increase in responsibility. But in the moment that an axiom's credibility (credit) is suspended by de­ construction, in this structurally necessary moment, one can alw;tys believe that there is no more room for justice, neither for j ustice itself nor for theoretical interest directed toward the problems of j ustice. This moment of suspense, this period of epoche, without which, in fact, deconstruction is not possible, is always full of anxiety, but who will claim to be just by economizing on anxiety? And t�is a�xjety­ ridden moment of suspense-which is also the interval of spacing in which transformations, indeed juridico-political revolutions take place-cannot be motivated, cannot find its movement and its i mp!Jise (an impulse which itself cannot be suspended) except in the demand for an increase in or supplement to justice, and so in the expe.ri.en�e. .of an in_adequ�tion or an incalculable disproportion. For in the end, where will deconstruction find its force, its movement or its motiva-

jacqr4es Derrida I 2 1

rion i f not in this always unsatisfied appeal, beyond the given deter­ minations of what we call, in determined contexts,- justice, the possi­ bility of justice? But it is still necessary to interpret this disproportion. If I ;ere to s-ay .that I know nothing more just than what f today call deconstruction (nothing more just, I'm not saying nothing more legal or more legitimate), I know that I wouldn't fail to surprise or shock not only the determined adversaries of said deconstruction or of what rhey imagine under this name but also the very people who pass for or take themselves to be its partisans or its practitioners. And so I will not say it, at least not directly and not without the precaution of sev­ eral detours. As you know, in many countries, in the past and in the present, one founding violence of tlle law · or ot the-imposition of state law has consisted in imposing a l anguage on national or ethnic minorities regrouped by the state. This was the case in France on at least tWO occasions, first when the Villers-Cotteret decree consolidated the unity of the monarchic state by imposing French as the juridico­ administrative language and by forbidding that Latin, the language of law and of the Church, allow all the inhabitants of the kingdom to be represented in a common language, by a lawyer-interpreter, without the imposition of the particular language that French still was. It is true that Latin was already a violent imposition and that from this point of view the passage from Latin to French was only the passage from one violence to another. The second major moment of imposi­ tion was that of the French Revolution, when linguistic unifica�ion sometimes took the most repressive pedagogical turns, or in any case the most authoritarian ones. I'm not going to engage in the history of these examples. We could also find them in this country, today, where this linguistic problem is still acute and will be for a long time, pre­ cisely in this place where questions of politics, education and law (droit) are inseparable (and where a debate has been recently begun on "national standards" of education) . Now I am moving right along, without the least detour through historical memory toward the formal, abstract statement of several aporias, those in which, between law and justice, deconstruction finds its privileged site-or rather its privileged instability. Deconstruction is generally practiced in two ways or two styles, althou ghlt most otten grafts one on to the other. One takes on the demonstrative and appar­ ently ahistorical allure of logico-formal paradoxes. The other, more historical or more anamnesic, seems to proceed through readings of texts, meticulous interpretations and genealogies. I will devote my at­ tention to these two practices in turn. First I will drily, d i rectly state, I w i l l "address" the following apo-

22 I The "Mystical Fortndation of A11thority"

rias. In fact there is only one aporia, only one potential aporetic that infinitely distributes itself. I shall only propose a few examples that will suppose, make explicit or perhaps produce a _difficult and uns�able distinction between justice and droit, between justice (i11fi_nite, incal­ culable, rebellious to rule and foreign to symmetry, heterogeneous and heterotropic) and the exercise of justice as law or right, legitimacy or legality, stabilizable and statutory, calculable, a system of regulateef and coded prescriptions. I would be tempted, up to a certain point, to compare the concept of justice-which I'm here trying to distinguish from law-to Levinas's, just because of this infinity and because of the heteronomic relation to others, to the faces of otherness that gov­ ern me, whose infinity I cannot thematize and whose hostage I remain. In Totalite and Infini ( " Verite et Justice," p. 62), Levinas writes: " . . . Ia relation avec autrui-c'est a dire Ia ;ustice" (" . . . the relation to others-that is to say, justice")-which he defines, moreover, as "droiture de /'accueil fait au visage " (p. 54) ("equitable honoring of faces"). Equity (Ia droiture) is not reducible to right or law (le droit), of course, but the two values are not unrelated. Levinas speaks of an infinite right: in what he calls "Jewish human­ ism," whose basis is not "the concept of man," but rather the other; "the extent of the right of the other" is that of "a practically infinite right"; "/'etendue du droit d'autrui [est] un droit pratiquement infin i " ( " Un droit infini, " in Du Sacre au Saint, Cinq Nouvelles Lectures Tal­ mudiques, pp. 1 7-1 8). Here equity is not equality, calculated propor­ tion, equitable distribution or distributive justice but rather absolute dissymmetry. And Levinas's notion of justice might sooner be compa­ red to the Hebrew equivalent of what we would perhaps translate as "sanctity." But since Levinas's difficult discourse would give rise to other difficult questions, I cannot be content to borrow conceptual moves without risking confusions or analogies. And so I will go no further in this direction. Everything would still be simple if this dis­ tinction between justice and droit were a true distinction, an opposi­ tion whose functioning was logically regulated and permitted mastery. But it turns out that droit claims to exercise itself in the name of justice and that justice is required to establish itself in the name of a law that must be "e!:!(orced." Deconstruction always finds itself between -these two poles. Here, then, are some examples of aporias. 1 . First aporia: epokhe of the rule. Our common axiom is that to be just or unjust and to exercise justice, I must be free and responsible for my actions, my behavior, my thought, my decisions. We would not say of a being without free­ dom, or at least of one without freedom in a given act, that its decision

jacques Derrida I 23

is just or unjust. But this freedom or this decision of the just, if it is must follow ii law -or a· prescription, a rule. In this sense, in its very autono � y� in i ts freedom to follow or to give itself la � s, i t � ust have t� power to be of the calculable or programma_ble order, for e xa mple as-an-act of fairness. But if the act simply consists of applying a rule, of enacting a program or effecting a calculation, we might say tha t it is legal, that it conforms to law, and perhaps, by metaphor, that it is just, but we would be wrong to say that the decision was just. To be just, the decision of a judge, for example, must not onlyJol­ low a rule of law or a general law but must al�o assume it, apJ'�?�e_ !t, confirm its value, by a reinstituting act_of interpre_t;uion_, �� if ultima­ tely nothing- previously existed of the Ia� as _ if_ili�llifig_�- hLIB�_elf.i.!l­ ventedtfielaWTnevery case�-No -exercis-e of ju-stice as law can be just unless th·e�e rs- a " fresh judgment" (I borrow this English expression from Stanley Fish's article, " Force," in Doing What Comes Naturally). This "fresh judgment" can very well-must very well-conform to a preexisting law, but the reinstituting, reinventive and freely decisive interpretation, the responsible interpretation of the judge requires that his " justice" not j ust consist in conformity, in the conservative and reproductive activity of judgment. In short, fQ! a decision to be just and responsible, it must, in its proper moment if there is one, be both regulated and without regulation: it must conserve the law and_ ,�lso destroy it or suspend it enough to have to reinvent it in each case, rejus§ �t. at least reinvent it in the reaffirmation and the new and free confirmation of its principle. Each case is other, each decision is different and requires an absolutely unique interpretation, which no existing, coded rule can or ought to guarantee absolutely. At least, if the rule guarantees it in no uncertain terms, so that the judge is a calculating machine, which happens, and we will not say that he is just, free and responsible. But we also won't say it if he doesn't refer to any law, to any rule or if, because he doesn't take any rule for granted beyond his own interpretation, he suspends his decision, stops short before the undecidable or if he improvises and leaves aside all rules, all principles. It follows from this paradox that there is never a moment that we can say in the present that a de_cision is just- {that is, free and responsible), or that someone is a just man-even less, " / am just." Instead of " just," we could say legal or legitimate, in conformity with a state of law, with the rules and conventions that authorize ca l­ culation but whose founding origin only defers the problem of justice. For in the founding of law or in its institution, the same problem of justice will have been posed and violently resolved, that is to say bu­ ried, dissimulated, repressed. Here th� best paradigm is the founding one.

__

24 I The "Mystical Foundation of Authority"

of the nation-states or the institutive act of a constitution that esta­ blishes what one calls in French /'etat de droit. 2. Second aporia: the ghost of the undecidable. justice, as law, is never exercised without a decision that cuts, that divi-des. This decision does not simply consist in its final form, for example a penal sanction, equitable or not, in the order of propor­ tional or distributive justice. It begins, it ought to begin, by right or in principle, with the initiative of learning, reading, understanding, in­ terpreting the rule, and even in calculating. For if calculation is cal­ culation, the decision to calculate is not of the order of the calculable, and must not be. Th e undecidable, a theme often associated with deconstruction, is not merely the oscillation between two significations or two contra­ dictory and very determinate rules, each equally imperative (for ex­ ample respect for equity and- universal right but also for the always heterogeneous and unique singularity of the unsubsumable example). The undecidable is not merely the oscillation or the tension between �o decisions; it is the experience of that which, though heteroge­ n�qus, foreign to the order of the calculable and the rule, is still obli­ �e_g-it is of obligation that we must speak-to give itself up to the impossible decision, while taking account of law and rules. A decision that didn't go through the ordeal of the undecidable would not be � free decision, it would only be the programmable application or un­ folding of a calculable process. It might be legal ; it would not be just. But in the moment of suspense of the undecidable, it is not just either, for only a decision is just (in order to maintain the proposition "only a decision is just," one need not refer decision to the structure of a subject or to the propositional form of a judgment). And once the ordeal of the undecidable is past (if that is possible), the decision has again followed a rule or given itself a rule, invented it or reinvented, reaffirmed it, it is no longer presently just, fully just. There is appa­ rently no moment in which a decision can be called presently and fully just: either it has not yet been made according to a rule, arid nothing allows us to call it just, or it has already followed a rule-whether received, confirmed, conserved or reinvented-which in its turn is not absolutely guaranteed by anything; and, moreover, if it were guaran­ teea, the decision would be reduced-to calculation and w-e -couldn't call it just. That is why the ordeal of the undecidable that I just said must be gone through by any decision worthy of the name is never past or passed, it is not a surmounted or sublated (aufgehoben) mo­ ment in the decision. Th.e...u.n.ckd�!e_remai!l £ �.c�l)ght, lodged, at least as a ghost-but an essential ghost-in every decision, in every event of decision. Its ghostliness deconstructsfrom within any assurance of

]acq11es Derrida I 25

presence, any certitude or any supposed criteriology that would assure us of iJ)e JUStice of a decision, in truth of the very event of a decision. Who will ever-be able to assure us that a decision as such has taken place? That it has not, through such and such a detour, followed a cause, a calculation, a rule, without even that imperceptible suspense that marks any free decision, at the moment that a rule is, or is not, a pplied ? The whole subjectal axiomatic of responsibility, of conscience, of inten tionality, of property that governs today's dominant juridical dis­ course and the category of decision right down to its appeals to med­ ical expertise is so theoretically weak and crude that I need not em­ phasize it here. And the effects of these limitations are massive and concrete enough that I don't have to give examples. We can already see from this second_'!P_o_r!1! QUhis se,ond form of the same aporia that the deconstruction of all presumption of a deter­ minantceititiide of a present justice itself operates on t_h c= basis of an infinite ."idea oljustlce/'_ in�nit�becaus.e. iLis irreduQ.hle. irredUI;ible because owed to the other, owed to the other, before any contract, because it has come, the other's coming as the singularity -thai Is -al­ ways other. This " idea of j ustice" seems to be irreaucible in- its affir­ mative charaCi:��� In its demand of gift without exchange, without cir­ culation, without recognition or gratitude, without economic circularity, without calculation and without rules, without reason and without rationality. Kilo so we can recognize in it, indeed accuse, iden­ tify a madness. And pe-rhaps another sort of mystique. And decon­ struction is mad about this kind of justice. Mad about this desire for justice. This kind of justice, which isn't law, is the very movement of deconstru-ctiOn-at work in law and the history of law, in political his­ tory -and hist-ory Itself, before it even presents itself as the discourse that the academy or modern culture labels "deconstructionism." I would hesitate to assimilate too quickly this "idea of justice" to a regulative idea (in the Kanrian sense), to a messianic promise or to other horizons of the same type. I am only speaking of a type, of this type of horizon that would have numerous competing versions. By com peting I mean similar enough in appearance and always pretend­ ing to absolute privilege and irreducible singularity. The singularity of the historical place-perhaps our own, which in any-case is the one I'm obscurely referring to here-allows us a glimpse of the type itself, as the origin, condition, possibility or promise of all its exemplifica­ tions (messianism of the Jewish, Christian or Islamic type, idea in the Kanrian sense, eschato-teleology of the neo-Hegelian, Marxist or post-Marxist type, etc.) . It also allows us to perceive and conceive the law of irreducible competition (concurrence), but from a brink where

26 I The "Mystical Fo1111dation ol A11thority"

vertigo threatens to seize us the moment we see nothing but examples and some of us no longer feel engaged in it; another way of saying that from this point on we always run the risk (speaking for myself, at least) of no longer being, as they say, "in the running" (dans Ia course). But not to be "in the running" on the inside track, docs not mean that we can stay at the starting-line or simply be spectators­ far from it. It may be the very thing that " keeps us moving," ( fait courir) with renewed strength and speed, for example, deconstruction. 3. Third aporia: the urgency that obstructs the horizon of knowl­ edge. One of the reasons I'm keeping such a distance from all these hori­ zons-from the Kantian regulative idea or from the messianic advent, for example, or at least from their conventional interpretation-is that they are, precisely, horizons. As its Greek name suggests, a hori­ zon is both the opening and the limit that defines an infinite progressor a period of waiting. But justice, however unpresentable it may be, doesn't wait. It is that which must not wait. To be direct, simple and brief, let us say this: a just deci�ion is �hvays reql,!ired immediately, " right away." It cannot fl!rnish itself with infinite information and the unlimited knowledge of conditions, rules or hypothetical imperatives that could justify it. And even if it did have all that at its disposal, even if it did give itself the time, all the time and the necessary facts about the matter, the mqment of decision, as such, always remains a finite moment of ur­ ge_n9: and precipitation, since it must not be the consequence or the effect of this theoretical or historical knowledge, of this reflection or this deliberation, since it always marks the interruption of the juridico- or ethico- or politico-cognitive deliberation that precedes it, that must precede it. The instant of decision is a madness, says Kier­ kegaard. This is particularly true of the instant of the just decision that must rend time and defy dialectics. It is a madness. Even if time and prudence, the patience of knowledge and the mastery of condi­ tions were hypothetically unlimited, the decision would be structur­ ally finite, however late it came, a decision of urgency and precipita­ tion, acting in the night of non-knowledge and non-rule. Not of the absence of rules and knowledge but of a reinstitution of rules which by definition is not preceded by any knowledge or by any guarantee as such. If we were to trust in a massive and decisive distinction be­ tween performative and constative-a problem I can't get involved in here-we would have to attribute this irreducibility of precipitate ur­ gency, at bottom this irreducibility of thoughtlessness and uncon­ sciousness, however intelligent it may be, to the performative structure of speech act and acts in general as acts of justice or law, whether they

jacques Derrida I 2 7 h: performatives that institute something or derived performatives sup posing anterior conventions. A constative can be ;uste (right), in [he sense of ;ustesse, never in the sense of justice. But as a performative .:�mnot be just, in the sense of justice, except byroun-dlng itself on .:onventions and so on other anterior performatives, buried or not, it .1lways -ma1rnairis within itself some irruptive violence, it no longer rcsponcisto-the Jemands of theoretical rationality. Since every consta­ [ivc utterance itself relies, at least implicitly, on a performative struc­ wrc ( " I tell you that, I speak to you, I address myself to you to tell vou that this is true, that things are like this, I promise you or renew ;ny promise to you to make a sentence and to sign what I say when I say that, tell you, or try to tell you the truth," and so forth), the di­ mension of ;ustesse or truth of the theoretico-constatie utterances (in all domains, particularly in the domain of the theory of law) always thus presupposes the dimension of justice of the performative utter­ ances, that is to say their essential precipitation, which never proceeds without a certain dissymmetry and some quality of violence. That's how I wou ld be tempted to understand the proposition of Levinas, who, in a whole other language and following an entirely different discursive procedure, declares that "La verite suppose Ia justice" ("Truth supposes justice") ( " Write et ;ustice," in Totalite et infini 3 , p. 62). Dangerously parodying the French idiom, we could end up saying: "La ;ustice, y a qu '�a de vrai." This is not without conse­ quence, needless to say, for the status, if we still can call it that, of truth. 1 Paradoxically, it is because of this overflowing of the performative, because of this always excessive haste of interpretation getting ahead of itself, because of this structural urgency and precipitation of justice that the latter has no horizon of expectation (regulative or messianic). But for this very reason, it may have an avenir, a "to-come," which I rigorously distinguish from the future that can always reproduce the present. JIJstice remains, is yet, to _come. a venir. it has an, it is a-venir, the very dimension of events irreducibly to come. It will always have it, this a-venir, and always has. Perhaps it is for this �ason that justice, i n sofar as it is not only -a juridical or political concept, opens up for l'.wenir the transformation, the recasting or refounding of law and politics. " Perhaps," one must always say perhaps for justice. There is an avenir for justice and there is no justice except to the degree that \orne event is possible which, as event, exceeds calculation, rules, pro­ grams, anticipations and so forth. Justice as the exper�nce of a_bsolute alterity is u_l)�n:�.IlJa bk.._ b\,lt itis_th�_cha_n�� Q.f ili� .evenJ_iut.d Jb�_c;oJJ­ dition of history. No doubt an unrecognizable history, of course, for those who believe they know what they're talking about when they

28 1 The "Mystical Foundation of Authority "

use this word, whether it's a matter of social, ideological, political, juridical or some other history. That justice exceeds law and calculation, that the unpresentable ex­ ceeds the determinable cannot and should not serve as an alibi for staying out of juridico-political battles, within an institution or a state or between institutions or states and others. Left to itself, the incal­ culable and giving (donatrice) idea of justice is always very close to the bad, even to the worst for it can always be reappropriated by the most perverse calculation. It's always possible. And so incalculable justice requires us to calculate. And first, closest to what we associate with justice, namely, law, the juridical field that one cannot isolate within sure frontiers, but also in all the fields from which we cannot separate it, which intervene in it and are no longer simply fields: eth­ ics, politics, economics, psycho-sociology, philosophy, literature, etc. Not only must we calculate, negotiate the relation between the calcul­ able and the incalculable, and negotiate without the sort of rule that wouldn't have to be reinvented there where we are cast, there where we find ourselves; but we must take it as far as possible, beyond the place we find ourselves and beyond the already identifiable zones of morality or politics or law, beyond the distinction between national and international, public and private, and so on. This requirement does not properly belong either to justice or law. It only belongs to either of these two domains by exceeding each one in the direction of the other. Politicization, for example, is interminable even if it cannot and should not ever be total. To keep this from being a truism or a triviality, we must recognize in it the following consequence: each ad­ vance in politicization obliges one to reconsider, and so to reinterpret the very foundations of law such as they had previously been calcu­ lated or delimited. This was true for example in the Declaration of the Rights of Man, in the abolition of slavery, in all the emancipatory battles that remain and will have to remain in progress, everywhere in the world, for men and for women. Nothing seems to me less outdated than the classical cmancipatory ideal. We cannot attempt to disqualify it today, whether crudely or with sophistication, at least not without treating it too lightly and forming the worst complicities. But beyond these identified territories of juridico-politicization on the grand geo­ political scale, beyond all self-serving interpretations, beyond all de­ termined and particular reappropriations of international law, other areas must constantly open up that at first can seem like secondary or marginal areas. This marginality also signifies that a violence, indeed a terrorism and other forms of hostage-taking are at work (the ex­ amples closest to us would be found in the area of laws on the teach­ ing and practice of languages, the legitimization of canons,

jacques Derrida I 2 9

the military use of scientific research, abortion, euthanasia, problems of organ transplant, extra-uterine conception, bio-engineering, medi­ ..:al experimentation, the social treatment of AIDS, the macro- or rni..:ro-politics of drugs, the homeless, and so on, without forgetting, of course, the treatment of what we call animal life, animality. On this last problem, the Benjamin text that I'm coming to now shows that its author was not deaf or insensitive to it, even if his propositions on this subject remain quite obscure, if not quite traditional). II" If I have not exhausted your patience, let us now approach, in an­ style, the promised reading of a brief and disconcerting Benja­ min text. I am speaking of Zur Kritik der Gewalt ( 1 92 1 ), translated as Critique of Violence. I will not presume to call this text exemplary. We are in a realm where, in the end, there are only singular examples. 1\:othing is a bsolutely exemplary. I will not attempt to justify abso­ lutely the choice of this text. But I could say why it is not the worst example of what might be exemplary in a relatively determined con­ text such as ours. 1 . Benjamin's analysis reflects the crisis in the European model of bourgeois, liberal, parliamentary democracy, and so the crisis in the concept of droit that is inseparable from it. Germany in defeat is at this time a place in which this crisis is extremely sharp, a crisis whose originality also comes from certain modern features like the right to strike, the concept of the general strike (with or without reference to Sorel). It is also the aftermath of a war and a pre-war that saw the European development and failure of pacifist discourse, anti­ militarism, the critique of violence, including juridico-police violence, which will soon be repeated in the years to follow. It is also the mo­ ment in which questions of the death penalty and of the right to pun­ ish in general are painfully current. Change in the structures of public opinion, thanks to the appearance of new media powers such as radio, hegins to put into question this liberal model of parliamentary discus­ sion or deliberation in the production of laws and so forth. Such con­ ditions motivated the thoughts of German jurists like Carl Schmitt, to mention only him. And so I was also interested by several historical indices. For example, this text, at once "mystical" (in the overdeter­ m i ned sense that interests us here) and hypercritical, this text which, in certain respects, can be read as neo-messianical Jewish mysticism !.mystique) grafted onto post-Sorelian nco-Marxism (or the reverse), upon its puhlication won Benjamin a letter of congratulations from other

30 I The "Mystical Foundation of A11thority"

Carl Schmitt, that great conservative Catholic jurist, still a constitu­ tionalist at the time; but you are already familiar with his strange conversion to Hitlerism in 1933 and his correspondence with Benja­ min. But also with Heidegger. As for analogies between Zur Kritik der Gewalt and certain turns of Heideggerian thought, they are impos­ sible to miss, especially those surrounding the motifs of Walten and Gewalt. Zur Kritik der Gewalt concludes with divine violence ( gott­ liche Gewalt) and in the end Walter says of divine violence that we might call it die waltende (Die gottliche Gewalt . . . mag die waltende heif1en) : "Divine violence . . . may be called sovereign violence." " . . . die waltende heif1en" are the last words of the text. It is this historical network of equivocal contracts that interests me in its necessity and in its very dangers. In the Western democracies of 1989, with work and a certain number of precautions, lessons can still be drawn from it. 2. Keeping in mind the thematic of our colloquium, this text seemed exemplary to me, up to a point, to the degree that it lends itself to an exercise in deconstructive reading, as I shall try to show. 3 . But this deconstruction is in some way the operation or rather the very experience that this text, it seems to me, first does itself, by itself, on itself. What does this mean? Is it possible? What remains, then, of such an event? Of its auto-hetero-deconstruction ? Of its just and unjust incompletion ? What is the ruin of such an event or the open wound of such a signature? And also, in what does its strength consist, strength precisely in the sense of Gewalt, that is, its violence, authority and legitimacy ? That is one of my questions. It is a question about the possibility of deconstruction. If you will allow me to cite myself, I happened to write that "the most rigorous deconstructions have never claimed to be . . . possible. And I would say that decon­ struction loses nothing from admitting that it is impossible; and also that those who would rush to delight in that admission lose nothing from having to wait. For a deconstructive operation possibility would rather be the danger, the danger of becoming an available set of rule­ governed procedures, methods, accessible approaches. The interest of deconstruction, of such force and desire as it may have, is a certain experience of the impossible."7 Benjamin's demonstration concerns the question of droit, recht, right or law. It even means to inaugurate, we shall be able to say it more rigorously in a moment, a "philosophy of droit. " And this phi­ losophy seems to be organized around a series of distinctions that all seem interesting, provocative, necessary up to a certain point but that all, it seems to me, remain radically problematic.

Jacques Derrida I 3 1

First, there is the distinction between two kinds of violence in law, in relation to law (droit) : the founding violence, the one that institutes ;tnd positions law (die rechtsetzende Gewalt, "law making violence") and the violence that conserves, the one that maintains, confirms, in­ sures the permanence and enforceability of law (die rechtserhaltende Gewalt, "law preserving violence"). For the sake of convenience, let us continue to translate Gewalt as violence, but I have already men­ tioned the precautions this calls for. As for translating Recht as "law" rrp dange r posed by Midianite women looms over the text. Moses' 1n retations loom over it as well. As we have come to expect in Moses' collaboration with Yahweh, Ya hweh echoes Moses' supplement with a supplement of His own . g d unn their third meeting and conversation: And Yahweh said to Moses: Go down, charge the people, so that th ey w ill not destroy their position w gaze at Yahweh, and many of the m perish. And the priests that come near to Yahweh will sanc­ tify the mselves, lest Yahweh break through upon them. And Moses �aad to Yahweh: The people cannot come up to Mt. Sinai, for you hav e charged us, saying: Set bounds to the mountain, and sanctify lt. And Yahweh said to him: Go, get down, and you shall come up,

1 2 6 I Writing Law According to Moses you and Aaron with you, and the priests. And the people shall nor destroy through to come up to Yahweh, lest He break through upon them. So Moses went down to the people, and told them."'

Moses complains that Yahweh is repeating the command to charge the people. In fact, Moses' complaint is not well founded, for two reasons. The original charge concerned "touching" rather than "gaz­ ing." One might say that Yahweh Himself is anticipating a possible " misinterpretation " of His first charge, that people will "destroy through to gaze," believing they are not physically "touching" the mountain. Yahweh is "interpreting" His own charge. Also, in the course of repeating His charge Yahweh adds to it an "implied" license for the priests to come closer than the people. Yahweh may be " add­ ing" the license, but He may again be "interpreting" a possible " mis­ interpretation" of His original charge, that priests must obey the same restrictions as the people. Either way, Yahweh is changing the words of His original charge in a manner similar to Moses. Both are inter­ preting. Yahweh shows irritation with Moses for not permitting Him the same interpretive "license" that Moses permitted himself. Moses must learn the rules of their collaboration. If man is made in Elohim's im· age, and man must interpret Elohim's commands in order to collabo­ rate with Yahweh, then Yahweh too must interpret His own-Elo­ him 's-commands. The text ratifies the act of interpretation, by showing Yahweh reflect the act of interpretation. Yahweh is Elohim by reflection-the image of an image.142 Moses places the text of Yahweh's interpretation of His own com· mand in apposition with the text of Moses' interpretation. Tlie posi· tion of the priests, we expect, will mirror the position of women. They too are necessary and dangerous. What is a priest? Moses tells us: And all the people see the loud noises and torches, and the voice of the horn, and the mountain smoking. And when the people feared, they moved, and stood in the distance. And they said to Moses: You speak with us, and we will hear. For if Elohim will speak with us, we will die. And Moses said to the people: Do nor fear, for in order to try you Elohim has come, and in order that His fear will be on your faces, so that you will nor sin. And the people stood in the distance, bur Moses drew near to the iog where rhe Elohim was. •••

"Seeing" the voice of Elohim frightens the people. They want Elohirn to speak to Moses, and Moses to speak to the people. They want

Arthur]. Jacobson I 1 27 M oses ro mediate between l l aho ra te with Yahweh, without mediators. A priest is one who me­ ates between the pe?p� e and �lohim. Yah weh 's response IS mstruct Jve:

them and Elohim. They do not want to

'_

d�

And Yahweh said to Moses: Thus you shall say to the children of Israel: You have seen that I have talked with you from the skies. You shall not make with Me gods of silver, and gods of gold you shall not make for yourselves. You shall make to Me an altar of earth and sacrifice on it your burnt offerings and your peace offer­ ings, your sheep and your canle. In every place where I will mention My name I will come to you and bless you. And if you shall make Me an altar of stones, you shall not build it of hewn stones. For if you lift your sword on it, you have profaned it. Neither shall you go up by steps to My altar, that your genitals not be uncovered on ir. •••

Yahweh's first response to the people's request that Moses mediate is to repeat the warning, already stated in the ten propositions, against making idols. Yahweh then lists rwo likely substitutes for idols: beau­ tifully (violently) carved altars, and uncovered genitals. He then tells Moses the rules.14s The rules close with a further warning against making and bowing to idols. l 46 Yahweh follows the rules immediately with a call: And He said to Moses: Come up to Yahweh, you and Aaron, Na­ dav and Avihu, and seventy of the elders of Israel, and bow in the distance. And Moses alone came near w Yahweh. And they did not come near. And the people did not come up with him. ••·

Yahweh establishes the priority of the priests-Aaron, Nadav and Avihu-over the people. The very next passage records Moses engaging in his writing with­ ou t cl e ar textual authority. The full passage is also instructive (W2 and R ) :

And Moses wrote all Yahweh's propositions, and got u p early in the morning, and built an altar beneath the mountain, and twelve monuments for the twelve tribes of Israel. And he sent the young lads of the children of Israel, who offered burnt offerings, and they \aeri heed peace offerings of oxen to Yahweh. And Moses took half the h l ood , and put it in basins. And he threw half the blood against the altar. And he took the book of the covenant, and read it in the car\ of the people. And they said: All that Yahweh has said we will do and hear. And Moses took the blood, and threw it on the people.

1 2 8 I Writing Law According to Moses

And he said: Here is the blood of the covenant, which Yahweh has made with you concerning all these propositions. Then Moses and Aaron, Nadav and Avihu and seventy of the elders of Israel went up. And they saw the Elohim of Israel. And under His feet there was the like of a brickwork of sapphire, the like of heaven for pu­ rity. And He did nor lay His hand on the nobles of the children of Israel. And they saw the Elohim, and are and drank.•••

Then Moses, together with young Joshua (not the priests or elders), rose up and Moses went alone to the top of the mountain for his first forty-day sojourn, where he reports learning instructions about the cult. 149 The passage records Moses carrying out Yahweh's instructions re­ garding altars and sacrifices, with three characteristic and fateful ad­ ditions. Moses retains the blood of the sacrifices and sprinkles it on the people in a convenant ceremony of his own devising. He also adds writing "all Yahweh's propositions" and reading them to the people. He calculates that the sprinkling of blood will remind us of one ele­ ment of the set of decreases of the red heifer-an inappropriate, par­ tial repetition of the purification ceremony Yahweh had reserved for the preparation of the people. 1 so This covenant ceremony-Moses' effort to collaborate with Yah­ weh-will not stick. The people, aided and abetted by Aaron, will turn from Moses' ceremony to making the golden calf. The reasoli they cite for turning the idols is Moses' delay. He is "delayed" for forty days on top of the mountain receiving instructions about the priestly cult and Elohim's tablets. He will smash the tablets, unerring (I am arguing) in his instinct that the people will bow to them as idols. Will they also bow to the mediators-Moses and Aaron ? If they tum to Moses and Aaron because they are frightened, will they collaborate with Yahweh ? Will those to whom they turn as mediators-Moses, Aaron, and Aaron's sons-betray the trust the people place in them ? 1 1 1 The balance of the text of the Five Books circles about these ques­ tions with an extraordinary variety of hints and further questions. I can touch only one or two. Moses leaves no doubt about the uniqueness of his own abilities. When Miriam and Aaron rebel against Moses for marrying a Cushite woman, Moses writes: And Yahweh spoke suddenly to Moses and Aaron and Miriam: Come our the three of you to the Tent of Meeting. And the three came out. And Yahweh came down in a pillar of cloud, and stood

Arthur ). jacobson I 1 2 9 the doo r o f the tent, and called Aaron and Miriam, and they hot h ca m e forth. And He said: Please listen to My propositions: If there will be a prophet among you, in a vision I will make Myself .II

known ro h i m .

In a dream I speak to him. My servant Moses is not is trusted in all My house. I speak with him mouth to mouth, even with sight, and not in riddles. And he can look at the image of Ya hweh. A n d why were you not afraid to speak against My ser­ vant, against Moses ? "' so. He

Moses retains his super-prophetic ability to speak directly with Yah­ weh throughout the Five Books. No other person has it: And Yahweh came down in a cloud, and He talked to him and shaded the spirit [wind, breath] on him and on the seventy men, the elders. And then, when the spirit rested on them and they prophesied and did so no more. And two men stayed in the camp. The name of one was Eldad [ Eiohim's breast) and the name of the other is Maidad [breast's water]. And the spirit rested on them and they were in the scriptures [ktubim, writings). And they did not go out to the tent, and they prophesied in the camp. And the lad ran and told Moses. And he said, Eldad and Maidad are prophesying in the camp. And there responded Joshua-bin-Nun, the servant of Moses and one of his lads. And he said: My sire Moses, jail them. And Moses said to him: Are you jealous for me? If it was only possible that all of Yahweh's people were prophets, for whom Yah­ weh would give his spirit on them.'"

Others can be prophets, but they will not be able to speak face to face �ith Yahweh, as Moses can. Moses' super-prophetic abilities have an I mpo rtant consequence. If the people have questions about the rules, Moses can ask Yahweh to answer the questions. l 54 Others cannot. After M oses dies, the people must answer their legal questions on their own , witho ut Moses' super-prophetic mediation. When Moses renegotiates the covenant, after the failure of the cov­ enant cere mony "of his own devising," Yahweh says that the condi­ ti on of his remai ning "inside" the people is that no human will ever see H1 fa ce a fte r Moses. ' 1 l Yahweh will remain "inside" people. They � tal k W i th Him by t a l king to themselves. They will not talk with Yah­ fa ce to f� cc, a did Moses.l 1' They will collaborate with Yahweh � ollah o ratmg wnh themselv es, and with each other. The second covenant, unlike the first, is nor a covenant initiated by Mo e s � w it h the people. Yahweh simply calls His "proper" name, tW1ce a; �� d . . pro m1ses . works, deeds, m exchange for deeds of the Peor 1•c . 1 h e first covenant was a covenant of blood. The second, a

���� ·

130 I Writing Law According to Moses

covenant of deeds, self-witnessing acts, not words or blood. Moses simply reports the words of the second covenant to the people. He does not ask them to say anything in response, just do and hear. m OTHER JURISPRUDENCES Moses' is not the only jurisprudence to require three writings. Com­ mon law and the jurisprudence of right do as well. Moses' is a juris­ prudence of duty. These three-Moses' law, common law and the jur­ isprudence of right-make up a family of jurisprudences that are dynamic. 1 19 The universe of norms in a dynamic jurisprudence is never static. Legal persons must change the universe of norms in a dynamic jurisprudence in order to follow a single one of them. A dynamic jur­ isprudence requires persons to make law in order to fulfill the funda­ mental obligations of legality. The dynamic jurisprudences treat law as an expression of the per­ sonality rather than an instrument of order. They are dynamic because the personality is dynamic. The amount of personality in the three dynamic jurisprudences differs. In Moses' law, the jurisprudence of duty, the personality strives towards a communally shared image of perfection. In the jurisprudence of right the personality strives to­ wards liberation, defined as recognition by other, similarly striving personalities. In common law, the personality attempts to suppress uncertainty of norms through concerted reciprocal action. The two non-dynamic jurisprudences-positivism and naturalism-treat law as an instrument of order. The static jurisprudences suppress person· ality, in any form, in the interests of order. They treat personality as anarchic. They acknowledge fewer than three writings. Positivism insists that law achieves order only by force, and only by confining the exercise of force to a central bureaucratic apparatus. The "author" of law in a positivist system makes law in two steps. First, the author makes a procedure for making law. The procedure "marks" or "franks" certain norms as law. The procedure marks­ makes-law, such as enacting a statute according to the procedures of statutory enactment or rendering a judicial decision according to the norms of rendering decisions. Persons do not make law directly, only by working the procedures. Unmarked norms are "customs." 160 The first "writing" is the authoritative enactment of the procedure. The author of the first writing is either a single person backed by charis· matic force, or a group of persons agreeing to a procedure and back· ing it by collective physical force or by tradition or a divine author

Arth11r ]. jacobson I I 3 I

ti n g procedure and backing it by force in the way of the world. n ng is the marking or franking of certain norms as law T� secon d writi procedure. Positivism treats the application of norms the ro ac�� rdi ng · · maner. �a rue I aw pnvate unproblematlc-a erestmg, unmt ,,1ses as ro posit ivism i s the product of two writings and two writings only.161 1 0 N at ural i sm asserts that law achieves order naturally, according to no rms ·•w ritten" or "engraved" in nature. Some forms of naturalism ress the fact that persons " read" the "writing," both when they d

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supp act and when they apply law to cases. Once again, persons do not make law, and true law is the product of one or two writings. The static jurisprudences assert that a person cannot have a legal right unless another person simultaneously has a mirror-image legal duty, and vice versa. Rights must always be correlated with duties, and duties with rights. The dynamic jurisprudences agree that rights can never be correlated with duties. They break the correlation of rights with duties. They are dynamic because they break the correla­ tion. The jurisprudence of duty-of which Moses' law is the supreme example-breaks the correlation of rights with duties by abolishing right as an operative category in the jurisprudence. Persons have du­ ties, not rights. A complainant goes to court, not because she is en­ forcing a right to compel another person to fulfill her mirror-image duty, but because she has a duty to report the other person's failure to the court. The duty to report is the duty of every person in the com­ munity. Persons in this jurisprudence are propelled to legal action by a drive to transform their personality in the direction of an image of perfection . In Moses' jurisprudence Yahweh/Eiohim offers the image. Othe r juri sprudences of duty have other images. The jurisprudence of right-of which Hobbes' Leviathan1•2 and Hegel's Philosophy of Right163 are examples-breaks the correlation b_y su ppressing or de-emphasizing the role of duty. Persons want nghr �. but they do not want other persons to reflect the rights as du­ tie s . They want other persons to recognize the rights, not to obey du­ ti es. They a rc willing to engage in contractual exchanges of recogni­ � on Ill o r d e r to get what they want, which is recognition. Persons have Utl c� only when they fail to provide recognition. 1 M Co m mo n la w is the dynamic jurisprudence that asserts that law is . a pplica tion of law -the doctrin� o� precedent. � aking or _ g \ m a legal norm reqUires three a p plications. The first IS the ap­ p Il ca l o n o f the norm in a prior case, a precedent. The second is the �Ph can on o f the norm in the case at hand, using the precedent. The lrd " app lica tion of the norm in the case at hand to a future case.

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132 I Writing Law According to Moses

Persons in common law learn law first by reading prior applica. tions. But they cannot know law just by reading prior cases. The norms generated by the prior cases must be applied in their case before they can know the norm, since the norm is just its application. Persons learn more about the norm as they plan action and act in light of their reading of the prior cases. The norm itself changes as persons act. It is general when they start. It becomes specific and calculable as they continue. Only once they " finish " the actions constituting their case does the norm "exist" as a full judgment on the propriety of their actions. One knows the norm by making it, in action. All action in common law (for that matter, in all dynamic jurisprudence) is legal action. All persons are constantly applying law. No moment in their lives is legally indifferent. Law drenches life and fills the universe. (In static jurisprudence large parts of the universe are legally indifferent, and what persons do in the gaps is their own business. Nothing in dynamic jurisprudence is the person's "own" business.) But complet· ing action in a case does not finish making or knowing the common law norm. In order to know the norm thoroughly, persons must await a further application. The present case yields a complete norm only once it serves as a precedent for further action, a future application. Common law breaks the correlation of rights with duties, but elim· inates or suppresses neither right nor duty. It recognizes that rights and duties are correlated, but that the correlations themselves are dy· namic, constantly changing as persons act, and as further applications revise norms generated in prior application. 165 The dynamic jurisprudences agree that persons make law, and that they cannot make it in one or two writings. Persons make law in three writings. The third writing makes the jurisprudence dynamic. The dynamic jurisprudences always allocate one writing each to a past, a present, and a future. The static jurisprudences allocate writ· ings only to a past and a present. There is no future, hence no dynamic driving the jurisprudence. Moses' law allocates Elohim's writing to a past, Moses' writing to the narrative present, and Yahweh's writing to a collaborative future. Common law allocates precedent to the past, application to the pres· ent, and further application to the future. The jurisprudence of right allocates the state of nature to the past, the contract leading out of the state of nature to the present, and law application to the future. The dynamic jurisprudences differ only with respect to the writ· ing-the past, present, or future-that drives persons in the jurispru· dence, making it dynamic.

Arthur ]. Jacobson I 1 33

Col l abora tion with Yahweh-the writing of the future-drives perprudence of duty. Persons act in order to collaborate so s in the juris They rewrite a model of perfection in an incessant weh. h Yah future perfection. The present is a flight towards the ward ro uggle supplies the judgment of perfection. The future is a past 5pas t. The the present will ana in past perfection. that ect prosp of nature-the writing of the past-drives persons state al leg The udence of right. They act-they struggle to get mutual rispr j u in the of rights-in order to flee the state of nature. The present tion gni co re a threatening past, from the state of non-recognition. from ht flig is The future guarantees that the present will successfully distinguish it­ self from the terrors of non-recognition. Acting according to precedent with an awareness that actions create further precedents-the writing of the present-drives persons in common law. Persons act in order to achieve reciprocal certainty ac­ cording to the doctrine of precedent. They seek certainty of norms, in the present. Past applications and future applications fold into action. Action makes norms by remaking past applications, and by offering further applications for remaking in the future. 166 The writing driving each dynamic jurisprudence is the source of law in the jurisprudence. The originating state of each dynamic jurispru­ dence supplies energy propelling persons into action (necessarily al­ ways legal action, no action being legally indifferent). In the jurispru­ dence of duty the originating state is the future-collaboration with Yahweh. In the jurisprudence of right the originating state is the past-the state of nature. In common law the originating state is the present-action according to precedent with an awareness that action creates precedents. The static jurisprudences, by contrast, recognize only a past and a present. They propose no originating state. The writing of the past serves only to establish a foundation for the writing of the present. The writi ng of the present neither flees from nor seeks the writing of the past. Neither present nor past propels the person into action. Th e sta ti c jurisprudences claim that persons can know law thor­ ?ughly at every moment. Law is always fully present. It never changes I ts re latio n to an originating state, in either past or future. Unlike com­ rn o n Ia \\� the static j urisprudences do not treat the present as an orig­ I n a ting s tate, perpetually unfolding law as persons apply and create Preced e nts in action. Law is fixed. It is fixed forever, even in positiv­ Is m , w hi ch fixes law forever until it marks another norm as law. The ITl a r k s of positivism, the maxims of the legal state of nature, refer only

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1 3 4 I Writing Law According to Moses

to the present. Persons know them completely in the present. Every legal person is conscious at all times of every legal norm. There is no "legal unconscious." The common experience of persons is to the contrary. Even if posi­ tivism and naturalism could fulfill the promise that legal norms be fully present-fully presented by marks and maxims-the bulk of norms must be thin enough to guarantee that legal persons could know all of them at a single moment. That is why positivists, at least, often regard the physical inscription of law as crucial : inscription of law expands the effective memory of persons. When lawmakers re­ duce law to writing, the bulk of norms with which persons can be charged enlarges, since persons have "access" to the writing, a legal "preconscious." 167 Naturalism, by contrast, simply asserts the "pre­ conscious" accessibility of all norms. Dynamic jurisprudence asserts that legal norms may be uncon­ scious. Unlike static jurisprudence, it does not require that norms be present to consciousness or accessible to consciousness (precons­ cious). Dynamic jurisprudence allows for normative material that is not present and not accessible in the present. The normative material is irredeemably past or future. Yet like the unconscious, the normative material affects the normative structure of the legal present. The legal present is a breaching or broaching through action of normative ma­ terial which is not otherwise present. The dynamic jurisprudences tol­ erate, indeed require, a legal unconscious. Positivism makes the clearest statement of any jurisprudence that law to be law must be " marked" or written-once, according to a given procedure. The danger for every non-positivist jurisprudence is a collapse into positivism, a sacrifice of legal material to the apparent needs of unitary order, self-denial or self-rejection by persons, loss of interest in all but the vulgar, narrow version of writing. Moses' law is not the only jurisprudence to face the positivist threat. Common law too has constantly been challenged by positivist distor­ tion. When common law judges began writing opinions in the first third of the nineteenth century, the content and flavor of their judg­ ments altered. Before they wrote opinions, students or reporters re­ corded the colloquies of judges, prior to voting. The written record of early common law decisions does not contain "opinions," but debates amongst judges. The written record presents a debate, followed by a vote and a verdict. It does not present an "opinion," a justification of a vote after the vote has been taken. •bN The style of the modern record is a style of justification, not debate. Old records contain "hypotheticals" on every page-invented factS

Arthur ]. Jacobson I 1 35

debaters to attack the statement of a rule. Hypotheticals use d bv J aw � r sp rsc in modern opinions. If we find them at all, we find a very e re nt h ypothetical. Modern judicial hypotheticals tend to show e and how it works, not that it fails to work. We find t} at a rul works hypothetical mostly in the law school classroom. The ing e attack supporting the common law today is legal education, tion stitu ain in 9 iary. 1 dic • ju not th e Positivism and naturalism share a specific claim that the dynamic ju ris pru dences always reject, each i � its own way. The �lai 11_1 is that the rule is complete, fully formed, pnor to any case applymg tt. Com­ mon law and Moses' law never treat rules as complete, fully formed, prior to applying them. To consider rules complete, from Moses' perspective, is to treat them as engravings. To apply rules to cases as if they are already formed bows to rules as idols. Creation is not complete, even if we want to treat it so. Rules rule only when persons struggle at every moment with them, use them in deeds to create a record. Common law holds a similar doctrine. Rules rule only when persons make them in applications. To make prior applications the last word is to deny that law is application. Positivism and naturalism regard the incessant creation or re­ creation of rules out of the very action the rules are supposed to gov­ ern as a destabilizing invitation to anarchy. The dynamic jurispru­ dences regard the incessant creation or re-creation of rules as at once the striving of persons (toward salvation, liberation, or reciprocity, as the case may be) and a spur to action. Moses' account of the jurisprudence he discovered is our most pas­ sionate, thorough, profound and illuminating discourse on the re­ wards and perils of writing law. His warnings against positivism speak directly to common lawyers, as well as to practitioners of his own legal system. The warnings are as difficult to do and hear today, as they were for those first legal persons in the wilderness, struggling to �ree themselves, body and soul, from slavery. Positivism and natural­ Ism are our own pharaonic temptations.

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XVII, 1 4- 1 6 . From now on I will refer to citations from Names by a nu meral chapter and an arabic numeral verse only. I pre fer to use English rranslations of the Hebrew names of the fit'l.' Books, rJthe r tha n the (mostlv) Greek translations, which are more familiar. The tradi­ tu m na me s each book b y the first significant word in the text of the book. Hence: ro nu n

136 1 Writing Law According to Moses Genesis Exodus Leviticus Numbers Deuteronomy

In the Beginning of (Bereshit) Names (Sh'mot) He Called ( Vayikra) In the Wilderness (Bamidbar) Propositions (D'varim)

English calls the last book Deuteronomy, but d't•arim means words, proposj. tions, discourses, matters, or things. Propositions contains the last propositions or discourses of the dying lawgiver. The best Greek translation is Logoi, nor Deutn. onomos ("second law"). Moses also uses the word "d'varim" to describe the "ten d'varim, " usuaUy translated as "ten commandments." Moses does not call them "command. ments"-"mitsvot"-a word he reserves for other matters. In order to reveal the Hebrew text as well as possible in English, I translate "d'varim" as "propositions• wherever it occurs, regardless of better English choices in context. These names resonate more powerfully than the anglicized Greek with various themes woven elaborately and carefully into the fabric of the Five Books. 2. XVII, 9. joshua will figure prominently at two funher points in the Five Boolu: the second and third of three covenants between God and Israel, at Names, XXXIII, I I ("but his servant joshua-bin-Nun, a young lad, did not depan out of the tent"), and at Propositions, XXXI, 14, 23 and XXXII, 44. 3. XII, 40. 4. The Israelites played a passive role in prior collaborations. During the depanurc, when Pharaoh decided to pursue the Israelites, Moses comfoned the people, say­ ing: " Yahweh will fight for you." XIV, 1 4. Moses writes, "Thus Yahweh saved Israel that day." XIV, 30. And: " And Israel saw the great hand which Yahweh did upon the Egyptians, and the people feared Yahweh and believed in Yahweh and in Moses His servant." XIV, 3 1 . The Israelites did not fight for themselves, up to Refidim. 5. XXIV, 4; XXIV, 12; XXXI, 1 8 ; XXXII, 1 5-16; XXXIV, I ; XXXIV,. 27-28; XXXIX, 30. Though Refidim is the first mention of writing, the first mention of "book • (sefer) is in the first verse of the fifth chapter of In the Beginning Of. Moses de­ scribes In the Beginning Of as the "book of the generations of man [adam]." 6. XXIV, 7. 7. XXXII, 32.

8. Moses thus refers to writing and the acnvmes surrounding it altogether tell times-the number of propositions that are the subject of God's writing on the two tables and the number of meetings between Moses and God at Mr. Sinai.

9. In the epistolary novel, more than one character narrates. The narrative voice of the epistle, at least in the Western tradition, is a late Judaic or early Christian invention. Given the ceaseless search of moderns for markets, I'm sure there ate exceptions to my categories. Maurice Blanchot has written about the narrative voice along these lines in "La Voix narrative," first published in I.'Entretien infini ( 1 969). See Blanchot, The Narrative Voice (the "he," the neuter), in The Gaze of Orpheus and other literar)' essays 1 3 3-43 (l. Davis trans. 1 9 8 1 ).

10. Sometimes authors who speak in this voice nonetheless suggest a distance betweell the narrator and the author. To that extent, the narrator shifts to the second voice.

Arthur }. jacobson I 1 3 7 becomang a character. Often, narrators o f the first son assume the: voice o f a reporrer, without assuming the responsibilities of a creator. The " fate" of the characters excuses the author from responsibility. Here roo, the narrator shifts partly ro the se�ond voice, assuming the role of a character subject to the same fare as his creanons. I I . Jose Faur has discussed the special status of the narrator in the Five 1 I. XX XIII. Boo ks. See Faur, God as a Writer: Omnipresence and the An of Dissimulation, 6 Reli gion & Intel!. Life 3 1 ( 1 989). Erich Auerbach's comparison between the Ho­ meric and Mosaic narratives in Mimesis is less useful. See E. Auerbach, Mimesis ( 1 946 ) . 12. A suitable English translation of " Yahweh" might be a word formed from the first (etters of "That Which Is What Has Been and Will Be": "Twiwhbawb." Yahweh is simpI y four letters in Hebrew: Yud-Hay- Vov-Hay (the Tetragrammaton). One writes it, in Hebrew, but does nor say it. One says, instead, "Adonai, " "Our Sire," "Notre Seigneur." So one would write, "Twiwhbawb," and say, "Our Sire." See infra note 17. Unlike the: Greek " ousia, " which asserts changeless "being," " Yahweh" asserts "becoming," ceaseless moving from past to future through present. Maimonides equates " Yahweh" with "ousia ":

Accordingly it has become clear to you that all names are derived or are used equivocally, as Rock and others similar to it. He, may He be exalted, has no name that is not derivative except the name having four letters, which is the articulated name. This name is not indicative of an attribute but of simple existence [ousia] and nothing else. Now absolute existence implies that He shall always be, I mean He who is necessarily existent. Understand the point at which this discourse has finally arrived. M. Maimonides, The Guide of the Perplexed, pt. I, ch. 63, at 156 (S. Pines trans. 1 963) (footnote omitted). I do not feel the same need to conform to Aristotelian philosophy. I start with Hegel's critique of Aristotle. Sec G. Hegel, Science of Logic 94-1 18 (W. Johnston & L. Struthers trans. 1 929). Maimonides does not disagree, however, that " Yahweh" signifies God in rela­ tion to persons. That is the significance of his striking claim that the Terragram­ maron is the "articulated name" of God. Sec infra note 1 23. The etymology of the English word "God" is disputed. According to the Ox­ ford English Dictionary, a probable Aryan root is "ghuto-m," the neuter of the passive: pluperfect of "gheu, " whose root is either "to invoke" (Sanskrit, "hu") or "to pour, to offer sacrifice" (Sanskrit, "hu"). Hence, "ghuto-m" has been inter­ preted as "what is invoked" and "what is worshipped by sacrifice." 4 The Oxford English Dictionary, "god," at 267 ( 1 970). Translators of the Five Books correctly use "God" for "Eiohim," since "elohim," just like "god," names any object of wo rship as well as the one, true object. They also translate " Yahweh" by the spok en Hebrew substitute: "Our Lord." This translation is, of course, wrong, �•nee the written English should translate: the written Hebrew.

U . Rash a accounts for the different names of God:

Thas name (Eiohim) denotes the attribute of justice (din), but it was changed into the attribute of mercy (rah.amim) through the prayers of the righteous. But the evil behavior of wicked people changes the attribute of mercy into the attribute of justice, as it is said, "and Y saw that the wickedness of man

1 3 8 I Writing Law According to Moses was great," etc., "and Y said, I will erase," although it is the name denoting the attribute of mercy. The Pentateuch and Rashi's Commentary: A Linear Translation into English (A. Ben Isaiah & B. Sharfman trans. 1 950) ( " Rashi's Commentary"), In the Beginning Of, VIII, I ( "And Elohim remembered Noah"). (I use the system of transliteration which sounds "h." as "ch." I have altered the translation when I have thought necessary for consistency or precision.) "Mercy" is the standard translation of the Hebrew " rah.amim." The idea, more exactly, is "pardon," refraining from imposing a just sanction. Rashi thus views Yahweh as "anti-Elohim," inasmuch as Yahweh refrains from imposing Elo­ him's sanctions. I believe that the text gives evidence that Yahweh is something other than "anti-Eiohim," though "anti-Elohim" overlaps with the attribute I claim for Yahweh. I call this attribute "collaboration," "friendship," the sympathy generated by working together on a joint project. (The notion of "collaboration• is also distinct from "h.esed, " which means "benevolence," the gratuitous confer­ ral of a benefit, apan from duty.) Thus collaborators can and should be merciful towards one another-releuc each other from duties, refrain from imposing sanctions suggested by justice. But collaborators will not approach pardon from the emotional posture of " mercy,• which I believe to be the posture of a superior towards a fractious inferior. Col­ laborators approach pardon as the sympathy generated by working together on a joint project, as friends. To join Yahweh with mercy is to retain the "elohim• perspective, the perspective of a subject to a ruler. Yahweh's perspective, I suggest, is the perspective of coworkers on a joint project. Moses, we shall see, influences Yahweh, makes an impression on Yahweh, causes Him to change. He could not do this did Yahweh advocate only release from justice. See infra text accompany­ ing notes 86-87, 140. 14. Today, following Hegel, we would characterize this ceaseless conversation as "self-consciousness." Though the parallels are by no means exact, perhaps the best translation of " Yahweh" is "Self-consciousness" (Selbstbewusstsein), and "Elohim," "Consciousness" (Bewusstein). 15. The Hebrew "pesel, " which is usually translated as "idol" or "graven image," has the root meaning of "statue."

1 6. Unlike Laurence Sterne, Elohim knows how to begin a novel. See L. Sterne, The Life and Opinions of Tristram Shandy, passim ( 1 759).

1 7. See, e.g., Rashi's Commentary, Names, XXXI, 18 ("And he gave unto Moses. etc.") : There i s n o "earlier" o r "later" (i.e., there i s n o chronological order neces­ sary) in Scripture. The incident of the (golden) calf preceded the command­ ment of the construction of the tabernacle by many days, for on the seven­ teenth of Tammuz were the Tables broken and on the Day of Atonement was the Holy One Blessed Be He reconciled to Israel, and on its morrow they began the contributions for the tabernacle, and it was set up on the first of Nisan (tanh.uma). For an example of Rashi's deconstructive technique, look at his commentarY on the missing letter " vov " in the word "le-o/am" ( " forever" ) in the sentence. "This is My name forever." Rashi says that concealment of the letter means that

Arthur ]. Jacobson I 1 3 9 (jod "s na me, Yahweh, ought to b e concealed, that is, wrinen but not Ill, 1 5 (�This is My name forever"). R ashi 's Commentary, Names,

spoken. See

The refusal to say � Yahweh" may be seen as a sign of respect, flowing from the p t mutuality of the relationship with Yahweh, which_ in rurn flows from the ind i\· idu ality of both Yahweh and the person addressmg H1m. These events are described in Names, XVIII. e x ec ed

)8. t9.

20. 21.

XVIII.

1 7-2 3 .

XVIII. 27. In the Wilderness, X, 29-32.

22. xv. 25.

from Marah, the following are the references to deere� (h.ok), rule (mish­ and doctrine (torah-"teaching" or "learning," in non-latinate English):

23. Apart (J