Deconstruction

Deconstruction

The term "deconstruction" was coined by French philosopher Jacques Derrida in the 1960s. In general, deconstruction is a philosophy of meaning, which deals with the ways that meaning is constructed by writers, texts, and readers.

Extending the philosophical excursions of Nietzsche and Heidegger, Derrida criticized the entire tradition of Western philosophy's search to discover the essential structure of knowledge and reality. ….. As an extension of his theory of logocentrism, Derrida posited that all texts are based on hierarchical dualisms (e.g., being/nonbeing, reality/appearance, male/female), where the first element is regarded as stronger and thus essentially true and that all systems of thought have an assumed center …. upon which they are based. In a deconstructionist reading, this unconscious and unarticulated point is revealed, and in this revelation the binary structure upon which the text rests is imploded. Thus what appears stable and logical is revealed to be illogical and paradoxical, and interpretation is by its very nature misinterpretation.

To a deconstructionist, meaning includes what is left out of the text or ignored or silenced by it. Because deconstruction is an attack on the very existence of theories and conceptual systems, its exposition by Derrida and others purposely resists logical definitions and explanations, opting instead for alinear presentations based on extensive wordplay and puns. Deconstructionists tend to concentrate on close readings of particular texts, focusing on how these texts refer to other texts. Certain scholars have severely criticized this movement on this basic point.

Deconstruction

An approach to the reading of literary and philosophical texts that casts doubt upon the possibility of finding in them a definitive meaning, and traces instead the multiplication (or ‘dissemination’) of possible meanings. A deconstructive reading of a poem, for instance, will conclude not with the discovery of its essential meaning, but with an impasse (‘aporia’) at which there are no grounds for choosing between two radically incompatible interpretations. According to deconstruction, literary texts resist any process of interpretation that would fix their meanings, appearing to ‘undo’ themselves as we try to tie them up.

The basis for this apparently perverse approach to reading lies in a certain view of the philosophy of language, and specifically of the status of writing, as developed since 1966 by the French philosopher Derrida, and by his American followers at Yale and elsewhere, including de Man. On this view, derived from a critical reassessment of Saussure, meaning can never be fully ‘present’ in language, but is always deferred endlessly–as when one may look up a word in a dictionary, only to be given other words, and so on ad infinitum. While speech gives the illusion of a fixed origin—the presence of the speaker—that can guarantee the meaning of an utterance, writing is more clearly unauthenticated and open to unlicensed interpretation. Derrida's alarmingly simplified account of the history of Western philosophy since Plato proposes that the dominant metaphysical tradition, in its deep suspicion of writing, has repeatedly tried to erect a fixed point of reference (a ‘transcendental signified’ such as God, Reason, absolute truth, etc.) outside the promiscuous circulation of signifiers, one that could hold in place a determinate system of truths and meanings.

The project of deconstruction, then, is not to destroy but to unpick or dismantle such illusory systems, often by showing how their major categories are unstable or contaminated by their supposed opposites. In philosophical terms, deconstruction is a form of relativist scepticism in the tradition of Nietzsche. Its literary implications are partly compatible with the New Criticism's rejection of the ‘intentional fallacy’ or any notion of the author fixing a text's meanings (see also death of the author), as they are with New Critical interest in paradox as a feature of poetry; but they go further in challenging the claims of any critical system to possess ‘the meaning’ of a literary (or any other) work. In some forms of deconstruction, notably that of de Man, literary texts are held to be more honest than other writings, because they openly delight in the instabilities of language and meaning, through their use of figurative language, for instance. The deconstructive style of literary analysis commonly emphasizes this through puns and wordplay of its own. See also Structuralism and post‐structuralism.

Deconstruction

Deconstruction, form of philosophical and literary analysis, derived mainly from work begun in the 1960s by the French philosopher Jacques Derrida, that questions the fundamental conceptual distinctions, or “oppositions,” in Western philosophy through a close examination of the language and logic of philosophical and literary texts. In the 1970s the term was applied to work by Derrida, Paul de Man, J. Hillis Miller, and Barbara Johnson, among other scholars. In the 1980s it designated more loosely a range of radical theoretical enterprises in diverse areas of the humanities and social sciences, including—in addition to philosophy and literature—law, psychoanalysis, architecture, anthropology, theology, feminism, gay and lesbian studies, political theory, historiography, and film theory. In polemical discussions about intellectual trends of the late 20th-century, deconstruction was sometimes used pejoratively to suggest nihilism and frivolous skepticism. In popular usage the term has come to mean a critical dismantling of tradition and traditional modes of thought.

The oppositions challenged by deconstruction, which have been inherent in Western philosophy since the time of the ancient Greeks, are characteristically “binary” and “hierarchical,” involving a pair of terms in which one member of the pair is assumed to be primary or fundamental, the other secondary or derivative. Examples include nature and culture, speech and writing, mind and body, presence and absence, inside and outside, literal and metaphorical, intelligible and sensible, and form and meaning, among many others. To “deconstruct” an opposition is to explore the tensions and contradictions between the hierarchical ordering assumed (and sometimes explicitly asserted) in the text and other aspects of the text’s meaning, especially those that are indirect or implicit or that rely on figurative or performative uses of language. Through this analysis, the opposition is shown to be a product, or “construction,” of the text rather than something given independently of it.

In the writings of the French Enlightenment philosopher Jean-Jacques Rousseau, for example, society and culture are described as corrupting and oppressive forces that gradually develop out of an idyllic “state of nature” in which humans exist in self-sufficient and peaceful isolation from one another. For Rousseau, then, nature is prior to culture. Yet there is another sense in which culture is certainly prior to nature: the idea of nature is a product of culture, and what counts as “nature” or “natural” at any given historical moment will vary depending upon the culture of the time. What this fact shows is not that the terms of the nature/culture opposition should be inverted—that culture is really prior to nature—but rather that the relation between the terms is not one-sided and unidirectional, as Rousseau and others had assumed. The point of the deconstructive analysis is to restructure, or “displace,” the opposition, not simply to reverse it.

Deconstruction in literary studies
Deconstruction’s reception was coloured by its intellectual predecessors, most notably structuralism and New Criticism. Beginning in France in the 1950s, the structuralist movement in anthropology analyzed various cultural phenomena as general systems of “signs” and attempted to develop “metalanguages” of terms and concepts in which the different sign systems could be described. Structuralist methods were soon applied to other areas of the social sciences and humanities, including literary studies. Deconstruction offered a powerful critique of the possibility of creating detached, scientific metalanguages and was thus categorized (along with kindred efforts) as “post-structuralist.” Anglo-American New Criticism sought to understand verbal works of art (especially poetry) as complex constructions made up of different and contrasting levels of literal and nonliteral meanings, and it emphasized the role of paradox and irony in these artifacts. Deconstructive readings, in contrast, treated works of art not as the harmonious fusion of literal and figurative meanings but as instances of the intractable conflicts between meanings of different types. They generally examined the individual work not as a self-contained artifact but as a product of relations with other texts or discourses, literary and nonliterary. Finally, these readings placed special emphasis on the ways in which the works themselves offered implicit critiques of the categories that critics used to analyze them. In the United States in the 1970s and ’80s, deconstruction played a major role in the animation and transformation of literary studies by literary theory (often referred to simply as “theory”), which was concerned with questions about the nature of language, the production of meaning, and the relationship between literature and the numerous discourses that structure human experience and its histories.

Deconstruction

Jacques Derrida's 1967 work Of Grammatology introduced the majority of ideas influential within deconstruction.
Derrida's original use of the word "deconstruction" was a translation of Destruktion, a concept from the work of Martin Heidegger that Derrida sought to apply to textual reading. Heidegger's term referred to a process of exploring the categories and concepts that tradition has imposed on a word, and the history behind them.

Derrida's concerns flow from a consideration of several issues:
1. A desire to contribute to the re-evaluation of all Western values, carried forward to the 19th century, in its more radical implications, by Kierkegaard and Nietzsche.
2. An assertion that texts outlive their authors, and become part of a set of cultural habits equal to, if not surpassing, the importance of authorial intent. 3. A re-valuation of certain classic western dialectics: poetry vs. philosophy, reason vs. revelation, structure vs. creativity, episteme vs. techne, etc.

According to Derrida and taking inspiration from the work of Ferdinand de Saussure, language as a system of signs and words only has meaning because of the contrast between these signs. As a consequence meaning is never present, but rather is deferred to other signs. Derrida refers to the mistaken belief that there is a self-sufficient, non-deferred meaning as metaphysics of presence. A concept then must be understood in the context of its opposite, such as being/nothingness, normal/abnormal, speech/writing, etc .

Further, Derrida contends that "in a classical philosophical opposition we are not dealing with the peaceful coexistence of a vis-a-vis, but rather with a violent hierarchy. One of the two terms governs the other (axiologically, logically, etc.), or has the upper hand": signified over signifier; intelligible over sensible; speech over writing; activity over passivity, etc. The first task of deconstruction would be to find and overturn these oppositions inside a text or a corpus of texts. But the final objective of deconstruction is not to surpass all oppositions, because it is assumed they are structurally necessary to produce sense. They simply cannot be suspended once and for all. The hierarchy of dual oppositions always reestablishes itself. Deconstruction only points to the necessity of an unending analysis that can make explicit the decisions and arbitrary violence intrinsic to all texts.

Finally, Derrida argues that it is not enough to expose and deconstruct the way oppositions work and then stop there in a nihilistic or cynical position, "thereby preventing any means of intervening in the field effectively". To be effective, deconstruction needs to create new terms, not to synthesize the concepts in opposition, but to mark their difference and eternal interplay. This explains why Derrida always proposes new terms in his deconstruction, not as a free play but as a pure necessity of analysis, to better mark the intervals. Derrida called undecidables, that is, unities of simulacrum, "false" verbal properties (nominal or semantic) that can no longer be included within philosophical (binary) opposition: but which, however, inhabit philosophical oppositions, resisting and organizing it, without ever constituting a third term, without ever leaving room for a solution in the form of Hegelian dialectics (e.g. différance, archi-writing, pharmakon, supplement, hymen, gram, spacing).

Hegelianism believes binary oppositions would produce a synthesis, while Derrida saw binary oppositions as incapable of collapsing into a synthesis free from the original contradiction.

Metaphysics of presence is the desire for immediate access to meaning, the privileging of presence over absence.

Différance: Complete meaning is always "differential" and postponed in language; there is never a moment when meaning is complete and total. A simple example would consist of looking up a given word’s definition in a dictionary, then comparing with dictionaries from different periods in time.

Perhaps Derrida's most quoted and famous assertion, which appears in an essay on Rousseau in his book Of Grammatology (1967), is the statement that "there is no out-of-context" (il n'y a pas de hors-texte). Critics of Derrida have been often accused of having mistranslated the phrase in French to suggest he had written "Il n'y a rien en dehors du texte" ("There is nothing outside the text") and of having widely disseminated this translation to make it appear that Derrida is suggesting that nothing exists but words. Derrida once explained that this assertion "which for some has become a sort of slogan, in general so badly understood, of deconstruction (...) means nothing else: there is nothing outside context. In this form, which says exactly the same thing, the formula would doubtless have been less shocking." According to Derrida, his statement simply refers to the unavoidability of context that is at the heart of différance.

Literary criticism
Derrida's method consisted in demonstrating all the forms and varieties of the originary complexity of semiotics, and their multiple consequences in many fields. His way of achieving this was by conducting thorough, careful, sensitive, and yet transformational readings of philosophical and literary texts, with an ear to what in those texts runs counter to their apparent systematicity (structural unity) or intended sense (authorial genesis). By demonstrating the aporias and ellipses of thought, Derrida hoped to show the infinitely subtle ways that this originary complexity, which by definition cannot ever be completely known, works its structuring and destructuring effects.

Deconstruction denotes the pursuing of the meaning of a text to the point of exposing the supposed contradictions and internal oppositions upon which it is founded—supposedly showing that those foundations are irreducibly complex, unstable, or impossible. It is an approach that may be deployed in philosophy, in literary analysis, and even in the analysis of scientific writings. Deconstruction generally tries to demonstrate that any text is not a discrete whole but contains several irreconcilable and contradictory meanings; that any text therefore has more than one interpretation; that the text itself links these interpretations inextricably; that the incompatibility of these interpretations is irreducible; and thus that an interpretative reading cannot go beyond a certain point. Derrida refers to this point as an "aporia" in the text; thus, deconstructive reading is termed "aporetic." He insists that meaning is made possible by the relations of a word to other words within the network of structures that language is.

Derrida proposed that signs always referred to other signs, existing only in relation to each other, and there was therefore no ultimate foundation or centre.

In contrast to classical forms of literary criticism, Deconstructionists holds that one not only should not attempt to discern the original intent of the author, but that one in fact cannot learn the original intent of the author. Rather, all one can do is deconstruct a text to bring out the subjective meanings discovered by the reader.

Richard Rorty (1931 - 2007) attempted to define Deconstruction as the way in which the "accidental" (or incidental) features of a text can be seen as betraying or subverting its essential message.

Although deconstruction has roots in Martin Heidegger’s concept of Destruktion, to deconstruct is not to destroy. Deconstruction is always a double movement of simultaneous affirmation and undoing. It started out as a way of reading the history of metaphysics in Heidegger and Jacques Derrida, but was soon applied to the interpretation of literary, religious, and legal texts as well as philosophical ones, and was adopted by several French feminist theorists as a way of making clearer the deep male bias embedded in the European intellectual tradition.

To deconstruct is to take a text apart along the structural “fault lines” created by the ambiguities inherent in one or more of its key concepts or themes in order to reveal the equivocations or contradictions that make the text possible. For example, in “Plato’s Pharmacy,” Derrida deconstructs Socrates’ criticism of the written word, arguing that it not only suffers from internal inconsistencies because of the analogy Socrates himself makes between memory and writing, but also stands in stark contrast to the fact that his ideas come to us only through the written word he disparaged (D 61-171). The double movement here is one of tracing this tension in Plato’s text, and in the traditional reading of that text, while at the same time acknowledging the fundamental ways in which our understanding of the world is dependent on Socrates’ attitude toward the written word.

Destruktion
The usual German word for “destruction” is “Zerstörung”, but Heidegger’s concept of Destruktion is also closely related to Abbau or dismantling. Derrida uses the word deconstruction to capture both German terms.
In Being and Time, Heidegger says that the purpose of Destruktion is to “arrive at those primordial experiences in which we achieved our first ways of determining the nature of Being—the ways which have guided us ever since” (BT 44). This is the double gesture referred to above, one that takes apart the European traditions and in so doing finds the basic understanding of Being beneath its surface. This goal separates Destruktion from deconstruction, not because deconstruction is purely negative, but because it has no fixed endpoint or goal. Deconstruction is always an on-going process because the constantly shifting nature of language means that no final meaning or interpretation of a text is possible. Subsequent ages, grounded in a different language and different ways of life, will always see something different in a text as they deconstruct it in the context of the realities with which they live. What is meant by “the written word”, for example, has already evolved substantially since Derrida wrote “Plato’s Pharmacy” due to the explosion in electronic media. All deconstruction can reveal are temporary and more or less adequate truths, not more primordial or deeper ones. For Heidegger, on the other hand, the “primordial experiences” of Being revealed through Destruktion result in a single interpretation that offers a more authentic alternative to philosophy’s misunderstanding of the temporality and historicality of human existence.

Deconstruction

A philosophical movement and theory of literary criticism that questions traditional assumptions about certainty, identity, and truth; asserts that words can only refer to other words; and attempts to demonstrate how statements about any text subvert their own meanings.

a technique of literary analysis that regards meaning as resulting from the differences between words rather than their reference to the things they stand for. Different meanings are discovered by taking apart the structure of the language used and exposing the assumption that words have a fixed reference point beyond themselves.

A process to carefully dismantle or remove usable materials from structures, as an alternative to demolition. It maximizes the recovery of valuable building materials for reuse and recycling and minimizes the amount of waste going to a landfill. Deconstruction options may include reusing the entire building by remodeling; moving the structure to a new location; or taking the building apart to reuse lumber, windows, doors, and other materials.

A POSTSTRUCTURALIST intellectual movement particularly influential in France and the US since the late1960s.Theterm is particularly associated with the work of the French philosopher Jacques DERRIDA who has developed powerful critiques, in particular of PHENOMENOLOGY, Saussurean linguistics, STRUCTURALISM and Lacanian psychoanalysis.

Derrida suggests that language is an unstable medium which cannot in any sense carry meaning or TRUTH directly. He has drawn attention to the ways in which Western philosophies have been dependent on METAPHOR and figurative rhetoric to construct ‘origin’, ‘essence’, or binary conceptual systems (e.g. nature/culture, masculine/feminine, rationalism/irrationalism) in which one term is constituted as the privileged norm setting up hierarchies of meaning which are then socially institutionalized. The project of deconstruction is to reveal the ambivalence of all TEXTS, which can only be understood in relation to other texts (intertextuality) and not in relation to any ‘literal meaning’ or normative truth.

By denying that we have any direct access to reality, unmediated by language, Derrida offers a critique of both POSITIVISM and phenomenology He also traces the extent to which Western linguistics and philosophy have been permeated by phonocentrism - the privileged notion of speech as the voice or ‘presence’ of consciousness – and by logocentrism – the belief that the Word of the transcendental signifier (e.g. God, the World Spirit) may provide a foundation for a whole system of thought. Clearly, for Derrida, any such transcendental origin or essence of meaning is sheer fiction. Further, he argues that social ideologies elevate particular terms (e.g. Freedom, Justice, Authority) to the status of the source from which all other meanings are derived. But the problem here is how any such term pre-exists other meanings through which its meaning is in practice constituted. Thus, any thought system which is dependent upon a first principle is, for Derrida, ‘metaphysical’.

In Derrida's view, then, LÉVI-STRAUSS consistently privileges a particular ethnocentric view of nature over culture; structuralism, generally, is dependent upon the project of constructing general laws based upon binary oppositions; LACAN (productively) sees the unconscious in terms of a language, but then falls into the trap of constituting the unconscious as the origin of ‘truth’. Further, the relationship between deconstruction and MARXISM is a complex one. On the one hand Derrida has pointed to the extent to which Marxist theory has been dependent upon metaphor (e.g. base/superstructure) to erect a totalizing account of the world. On the other, he has, on occasion, declared himself to be a Marxist arguing that deconstruction is a political practice committed to uncovering false logics upon which social institutions maintain their power. While Derrida has continued to stress this progressive, radical critique, his work has been taken up by literary critics in the US in particular(the Yale School of Deconstructionists),stripped of its political force, and turned in a direction which focuses upon the ‘undecidability’ of meaning. Derrida himself has indicated the ways in which, ironically such strategies of deconstruction can ultimately operate in the service of dominant political and economic institutions.

Deconstruction

Deconstruction doesn't actually mean "demolition;" instead it means "breaking down" or analyzing something (especially the words in a work of fiction or nonfiction) to discover its true significance, which is supposedly almost never exactly what the author intended. A feminist may deconstruct an old novel to show how even an innocent-seeming story somehow depends on the oppression of women. A new western may deconstruct the myths of the old West and show lawmen as vicious and criminals as flawed but decent. Table manners, The Sound of Music, and cosmetics ads have all been the subjects of deconstructionist analysis. Of course, not everyone agrees with deconstructionist interpretations, and some people reject the whole idea of deconstruction, but most of us have run into it by now even if we didn't realize it.

Metaphysics of Presence

The concept of the metaphysics of presence is an important consideration in deconstruction. Deconstructive interpretation holds that the entire history of Western philosophy with its language and traditions has emphasized the desire for immediate access to meaning, and thus built a metaphysics or onto-theology based on privileging presence over absence.

In Being and Time (1927), Martin Heidegger argues that the concept of time prevalent in all Western thought has largely remained unchanged since the definition offered by Aristotle in the Physics. Heidegger says, "Aristotle's essay on time is the first detailed Interpretation of this phenomenon [time] which has come down to us. Every subsequent account of time, including Henri Bergson's, has been essentially determined by it." Aristotle defined time as "the number of movement in respect of before and after". By defining time in this way Aristotle privileges what is present-at-hand, namely the "presence" of time. Heidegger argues in response that "entities are grasped in their Being as 'presence'; this means that they are understood with regard to a definite mode of time – the 'Present'". Central to Heidegger's own philosophical project is the attempt to gain a more authentic understanding of time. Heidegger considers time to be the unity of three ecstases, the past, the present and the future.

Deconstructive thinkers, like Jacques Derrida, describe their task as the questioning or deconstruction of this metaphysical tendency in Western philosophy. Derrida writes, "Without a doubt, Aristotle thinks of time on the basis of ousia as parousia, on the basis of the now, the point, etc. And yet an entire reading could be organized that would repeat in Aristotle's text both this limitation and its opposite." This argument is largely based on the earlier work of Heidegger, who in Being and Time claimed that the theoretical attitude of pure presence is parasitical upon a more originary involvement with the world in concepts such as the ready-to-hand and being-with. Friedrich Nietzsche is a more distant, but clear, influence as well.

The presence to which Heidegger refers is both a presence as in a "now" and also a presence as in an eternal present, as one might associate with God or the "eternal" laws of science. This hypostatized (underlying) belief in presence is undermined by novel phenomenological ideas, such that presence itself does not subsist, but comes about primordially through the action of our futural projection, our realization of finitude and the reception or rejection of the traditions of our time.

Metaphysics of Presence

As used by Jacques Derrida, the term “metaphysics of presence” refers to any epistémé which seeks to determine being as presence.
In works such as Speech and Phenomena, of Grammatology, and Writing and Difference, Derrida demonstrates the different forms that this determination of being as presence has historically assumed:
Being as the objectivity present to the sight or to a subject’s mind;
Being as the self-presence and self-proximity of the cogito, consciousness, subjectivity;
Being as the return to the same (the name to the/as proper, the voice to the receptacle of the ear, intention to the subject, meaning to its source).
This is, according to Derrida, the history of metaphysics merges with the history of what he calls logocentrism; in other words, the belief in the self-presentation of meaning. ……..
Derrida considers the subordination of writing to speech (what he terms phonocentrism) as the most revealing symptom of how the notion of presence has functioned within the Western philosophical tradition. This is why, in his effort to deconstruct (take apart and reinscribe) the metaphysical structures on which the tradition depends, he concentrates on the nothing on writing. Beyond the traditional understanding of it, writing in Derrida is that which epitomizes those properties of language: iterability (the possibility that any sign carries within it to function in the absence of both its origin/ator and its referent) and what Derrida calls différance (the continual deferral of any full presence or apocalyptic (self)-manifestation due to infinite play of differences which any sign – according to Saussure – engages in.)

Though Derrida is interested in what fissures and suspends presence, he is far from privileging absence and difference. In fact, one of the main threads in his works has been to problematize any oppositional system of thought which constructs one side of the opposition as the simple exteriority of the other (for example, death to life, absence to presence, writing to speech, signifier to signified, and so on). ….. As such, it marks a new science of writing (grammatology) which keeps itself open to the differential structure of the sign and is no longer predicated on a determination of Being as presence.

Derrida’s interrogation of metaphysics can be traced back to Nietzsche’s mistrust of such dominant Western values as “truth”, “meaning”, “being”, “consciousness” and Heidegger’s critique of what he calls “onto-theology” (that is, the system of essentially theological concepts generated by the Western privileging of presence). In fact, Derrida is following Heidegger in his belief that presence is the cornerstone of the edifice of Western philosophy and, thus, the central target in any attempt to deconstruct it. Both Heidegger and Derrida locate themselves the epoch of the “closure” (die Vollendung in Heidegger, la clȏture in Derrida) of metaphysics, where “closure” refers both to exhaustion of metaphysics and the acceptance of metaphysics as a boundary/limit or even, an obstacle which cannot simply and unproblematically be transgressed/overcome.
Where Derrida departs from Heidegger is in his refusal to ground any double gesture of inscription/erasure or transgression/restoration on what remains a “master-word” for Heidegger, namely Being. Derrida’s shift of focus from “Being” to “trace” constitutes an effort on his part to graft the ground itself (and, thus, all possibility of producing a master-word) into the very movement/force/play of the double gesture.

The Derridian critique of metaphysics as the philosophical privileging of presence has been most influential in the emergence and formation of what are now widely recognized as prominent postmodernist “themes”: the problematization of identity (as the return of the same), consciousness (as self-presence and self-proximity), and experience (as unmediated presence). Within the area of postmodernist aesthetics, it has also serve to challenge both realistic notions of representation and the modernist concern with form. Finally, Derrida’s reenactment of the Heideggerian double gesture towards metaphysics has contributed to a more complex understanding of the “post” in postmodernism as signaling, not a break but, an interrogation from within.

Presence

Presence is a term used in metaphysics to denote the problematic of Being in both the spatial (the presence of objects) and temporal (the present moment) senses.
An issue in a history of philosophy that stretches from Plato’s analysis of speech and writing in the Phaedrus and Aristotle’s examination of time in Physics IV to Postmodernity, the concept of presence underwrites many of the issues under debate I Martin Heidegger’s Being and Time and Jacques Derrida’s notion of deconstruction.
Through different strategies, both Heidegger and Derrida explore the metaphysical mooring of presence in order to disfigure the very foundation of Western thought.
Philosophies that deal with the term encounter peculiar difficulties because of the word’s multi-valence as signifier of self-presence and of the temporal-present, that is as a mode of consciousness in space on the one hand and as a unit of time on the other.

Heidegger’s engagements
Heidegger's analysis of the temporality of Dasein (Being-there) in Being and Time , the term can mean ….. the “present” (Gegenwart) time, and the “presence” (Anwesenheit) of Being. It is in these two meanings that Heidegger’s usage has achieved its importance for postmodern inquiries into the questioning of metaphysics.
Derrida, in “Qusia and Gramme: A Note on a Note from Being and Time”, informs us that the present can signify what Heidegger, following Aristotle, calls the nun - or the now-moment – the present that always slips away, that exists only as the “no longer” of the past or as “not-yet” of the future. Thus, metaphysically, no temporal present exists. The past symbolizes obsolescence as the future implies the soon to be realized. For Heidegger, such an approach to time is inauthentic because it fails to recognize its own historicity as well as the liberatory and visionary possibilities of the present. For Derrida, Heidegger’s work begins to realize that philosophy itself has always been authorized by the “extraordinary right” of the present.
In Of Grammatology, Derrida explains that Western thought sees presence as “the meaning of being in general” – that presence signifies the presence of things, temporal presence as a point in time, presence as true essence, and self-presence as consciousness in the Cartesian sense. Hence for Derrida Heidegger’s analysis of temporality in comes close to a deconstruction of the metaphysics of presence, but finally only sketches the boundaries of the onto-theology it hopes to destroy. That is, Derrida acknowledges that classical ontology “trembles” in Being and Time, but ultimately certain binary oppositions remain intact because they serve Heidegger’s overarching project of opposing the inauthentic to the Primordial. Although Being and Time initiates an interrogation of the notions of presence and presentness that might uncover logocentrism, it finally stops short of this deconstructive turn and instead, contemplates Primordial Being.

Derrida’s engagements
Logocentrism refers to the privileging of speech over writing, but it also refers to the notion that words, ideas, and systems have fixed meanings rooted in the authorizing presence of some center or Ur-speaker.
Derrida’s early work deconstructs these binaries between speech and writing, presence and absence. Unlike Heidegger, Derrida draws on the structuralist linguistics of Ferdinand de Saussure, who posits that language is a system of differences. Hence, unlike thinkers in the hermeneutical tradition, Derrida can view language as a system, a structure that in some sense produces subjects. Logocentric thought privileges speech because when speech occurs a speaker is present to clarify, edit, and explain the meaning of the spoken words. Western thought favors speech over writing because the presence of speaker insures the transference of the proper, unadulterated meaning of a speech. Whereas, writing and absence are open to the proliferation - or dissemination – of a word’s uncontrolled, polyvalent meanings. Although Derrida find logocentrism even in Saussure, he uses the notion of language as system to focus on the erasure of presence, but for a poststructuralist like Derrida this system is never an immutable or monolithic one.

In Derrida’s analysis, cites past meanings and contexts, but in its citation, language also repeats and alters the past by relating old meanings to current situations; thus, language is itself a form of citation and iteration that is altered as it is spoken, changed as it recurs. This process is what Derrida refers to as the logic of the supplement. We cannot stand outside of language as self-present, Cartesian subjects because we are always already produced by language and re-producing language, always citing, iterating, and supplementing it. That is, as much as language constructs subjects, subjects continually alter and fragment language.
As a supplement and trace structure, language is uncontrolled, de-authorized, and as Derrida explains in his reading of Plato’s Phaedrus, language becomes the Pharmakon; a Greek word that bears a double meaning as cure and poison. Therefore, language without an authorizing center contains an element of danger. In his reading of Plato, Derrida argues that the structure of language prohibits the possibility of thinking back to the notion of originating – or metaphysical – presence that might assure and verify meanings. Presence has become a concept under debate by scholars and critics in a wide variety of disciplines that include, but in no means limited to deconstruction, feminism, gender studies, hermeneutics, and structuralism.

Absence

Absence is a lack that disrupts or defers full presence. Insofar as traditional Western thought and its consummation involve a metaphysics of presence, the function of “absence” proves crucial to postmodern critiques of Western thought. Within a metaphysics of presence, primal “truth” is equated with “being”, and being is equated with “presence”: to be true, or truly to be, is to be originarily and fully present. This tie between primal truth and ontological presence informs traditional and modern conceptions of (1) God (the source of all truths as the full presence of being), (2) the human subjects (the truth of whose thought and identity would be realized in rational self-presence), and (3) meaning in language (the truth of whose signifying movement would be sought in the presence of signified).

(1) If the full presence of being, conceived traditionally as God, is understood to constitute the primal source of truth or meaning, postmodernity confronts a crisis of truth or meaning insofar as it inherits a deep sense of God’s absence (notably from Nietzsche’s ‘death of God’). …

(2) Postmodern thinkers likewise evoke absence to critique modernity’s attempt to ground truth in the rational self-presence of self-identical subject. …..

(3) Pivotal to most all postmodern understandings of absence is the question of language and representation, addressed exemplarily by Derrida, who sees absence as basic to the way linguistic signs function. Against the view that signs secure meaning insofar as they re-present the presence of some signified that transcend the movement of signification, Derrida argues that the absence of any such “transcendental signified” is necessary to the very movement of signs: signs signify only in their differential relation to one another, and thus only insofar as they never reach the full presence of an extra-linguistic signified.

The figures of absence that inform postmodern thinking on the language and representation of Being, God, and the subject, have been central also to postmodern literature, criticism, art, and architecture.

Logocentrism and the critique of binary oppositions

Deconstruction's central concern is a radical critique of the Enlightenment project and of metaphysics, including in particular the founding texts by such philosophers as Plato, Rousseau, and Husserl, but also other sorts of texts, including literature. Deconstruction identifies in the Western philosophical tradition a "logocentrism" or "metaphysics of presence" (sometimes known as "phallogocentrism") which holds that speech-thought (the logos) is a privileged, ideal, and self-present entity, through which all discourse and meaning are derived. This logocentrism is the primary target of deconstruction.

One typical form of deconstructive reading is the critique of binary oppositions, or the criticism of dichotomous thought. A central deconstructive argument holds that, in all the classic dualities of Western thought, one term is privileged or "central" over the other. The privileged, central term is the one most associated with the phallus and the logos. Examples include:
•speech over writing
•presence over absence
•identity over difference
•fullness over emptiness
•meaning over meaninglessness
•mastery over submission
•life over death

Derrida argues in Of Grammatology that, in each such case, the first term is classically conceived as original, authentic, and superior, while the second is thought of as secondary, derivative, or even "parasitic." These binary oppositions, or "violent hierarchies," and others of their form, he argues, must be deconstructed.

This deconstruction is effected in two ways ("La Double Séance," i.e., "The Double Session"). He argues that these oppositions cannot be simply transcended; given the thousands of years of philosophical history behind them, it would be disingenuous to attempt to move directly to a domain of thought beyond these distinctions. So, construction first attempts to compensate for these historical power imbalances, undertaking the difficult project of thinking through the philosophical implications of questioning and presenting complications to show the contingency of such divisions.

The second way involves the emergence or eruption of a new conception. One can begin to conceive a conceptual terrain away from these oppositions: the next project of deconstruction would be to develop concepts which fall under neither one term of these oppositions nor the other. Much of the philosophical work of deconstruction has been devoted to developing such ideas and their implications, of which différance may be the prototype (as it denotes neither simple identity nor simple difference). Derrida spoke in an interview (first published in French in 1967) about such "concepts," which he called merely "marks" in order to distinguish them from proper philosophical concepts:

        [I]t has been necessary to analyze, to set to work, within the text of the history of philosophy, as well as within the so-called literary text, …, certain marks, shall we say, … that by analogy (I underline) I have called undecidables, that is, unities of simulacrum, "false" verbal properties (nominal or semantic) that can no longer be included within philosophical (binary) opposition, resisting and disorganizing it, without ever constituting a third term, without ever leaving room for a solution in the form of speculative dialectics. (Jacques Derrida's Positions, pp 42-43)

As can be seen in this discussion of its terms' undecidable, unresolvable complexity, deconstruction requires a high level of comfort with suspended, deferred decision; a deconstructive thinker must be willing to work with terms whose precise meaning has not been, and perhaps cannot be, established. (This is often given as a major reason for the difficult writing style of deconstructive texts.) Critics of deconstruction find this unacceptable as philosophy; many feel that, by working in this manner with unspecified terms, deconstruction ignores the primary task of philosophy, which they say is the creation and elucidation of concepts. This deep criticism is a result of a fundamental difference of opinion about the nature of philosophy, and is unlikely to be resolved simply.

Logocentrism

The term “logocentrism” is derived from the Greek word logos (speech, logic, reason, God’s word) and centrism (to center upon or focus). In philosophical and rhetorical traditions since the classical Greeks, the spoken word and reason have been elevated over the written word and emotion. This privileging of speech and logic occurred because the ancients perceived it better for a speaker and a listener to be in close proximity to an utterance. The immediacy of the speaker and the listener suggested that all participants knew what the other meant, that each intended what was said, and knew what the other said, since there was no temporal or spatial different between the two parties. Distance or absence from the spoken word posed an opportunity for misunderstanding utterances and to open meaning to multiple forms of interpretation.

Since Aristotle, logocentric presence has been equated with Being. Being has been equivalent to “existence” in mush of Western metaphysical thought. Presence as Being is an attempt to characterize existence or reality either as a whole or as particular parts that are immediate to the speaker and listener. The binary opposition that represent logocentric thinking reflect the hierarchical reasoning inherent in a culture’s thoughts about reality. Given that any language maintains certain biases toward distinguishing reality, the dichotomous structures found in logocentrism tell us much in reference to how a culture uses and misuses concepts to create a fixed mental framework that every rational mind in the culture must adopt to reflect the same reality.

Logocentrism depends upon a two-valued orientation mindset that speakers and listeners configure in a specific manner. These two choices are not unbiased opposites. In logocentrism, the first term indicates presence; the second term, absence or the fall away from that which is present. Over time in a culture that promote dichotomous thinking, these terms and their associations become “natural” classifications and responses.
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Critique of the binary, oppositional thinking

One way to understand deconstruction is in terms of a critique of the binary, oppositional thinking that, for Derrida, is central to the history of philosophy. This is to say, each term in the Western philosophical/cultural lexicon is accompanied by its binary opposite: intelligible/sensible, truth/error, speech/writing, reality/appearance, mind/body, culture/nature, good/evil, male/female, and so on. These oppositions do not peacefully coexist, however: one side of each binary opposition has been privileged and the other side devalued. A hierarchy has been established within these oppositions, as the intelligible has come to be valued over the sensible, mind has come to be valued over body, and so on. The task of deconstruction is to dismantle or deconstruct these binary oppositions: to expose the foundational choices of the philosophical tradition and to bring into view what the tradition has repressed, excluded, or—to use the Derridean terminology—marginalized. (Encyclopedia.com)

Deconstruction in relation to structuralism

Derrida's "Letter to a Japanese Friend" explains well about the relationship of deconstruction with structuralism. Deconstruction developed with a milieu of structuralism. According to Derrida, his use of the word deconstruction first took place in a context in which "structuralism was dominant." He states that deconstruction is an "antistructuralist gesture" because "Structures were to be undone, decomposed, desedimented." But for him, deconstruction is nonetheless also a "structuralist gesture" because it is concerned with the structure of texts. Derrida writes that deconstruction involves "a certain attention to structures" and tries to "understand how an 'ensemble' was constituted."
He states that the "use value" of deconstruction "had been determined by the discourse that was then being attempted around and on the basis of Of Grammatology," and that "this word [i.e., deconstruction], at least on its own, has never appeared satisfactory to me (but what word is), and must always be girded by an entire discourse." This determination of the use value of deconstruction by the discourse in which it occurs, and Derrida's refusal to consider deconstruction separately from this discourse, indicates that his understanding of the term is embedded in a structuralist discourse.
It is structural because what the word means is determined by its relationship to other words. It is for this reason that deconstruction was not originally intended by Derrida to be associated with post-structuralism. This is clear from Derrida's note that "especially in the United States, the motif of deconstruction has been associated with 'poststructuralism' (a word unknown in France until its 'return' from the United States)." Deconstruction is for Derrida tied up with what he identifies as the "structural problematic."

Différance

Against the metaphysics of presence, deconstruction brings a (non)concept called différance. Applied to the problem of meaning, the word suggests that meaning always differs from itself (is never stable or fixed) while also suggesting that meaning is always deferred.
This French neologism is, on the deconstructive argument, properly neither a word nor a concept; it names the non-coincidence of meaning both synchronously (one French homonym means "differing") and diachronically (another French homonym means "deferring"). Because the resonance and conflict between these two French meanings is difficult to convey tersely in English, the word différance is usually left untranslated.

Différance

Against the metaphysics of presence, deconstruction brings a (non)concept called différance. Applied to the problem of meaning, the word suggests that meaning always differs from itself (is never stable or fixed) while also suggesting that meaning is always deferred.
This French neologism is, on the deconstructive argument, properly neither a word nor a concept; it names the non-coincidence of meaning both synchronously (one French homonym means "differing") and diachronically (another French homonym means "deferring"). Because the resonance and conflict between these two French meanings is difficult to convey tersely in English, the word différance is usually left untranslated.

Trace

The idea of différance also brings with it the idea of trace. A trace is that from which a sign differs/defers. It is the absent part of the sign's presence. In other words, through the act of différance, a sign leaves behind a trace, which is whatever is left over after everything present has been accounted for.
According to Derrida, "the trace itself does not exist" because it is self-effacing. That is, "in presenting itself, it becomes effaced." Because all signifiers viewed as present in Western thought will necessarily contain traces of other (absent) signifiers, the signifier can be neither wholly present nor wholly absent.

Derrida and the Philosophy of Law and Justice

Excerpt and condensation

Abstract
Readings of Derrida’s work on law and justice have tended to stress the distinction between them. This stress is complicated by Derrida’s own claim that it is not ‘a true distinction’. In this essay I argue that ordinary experiences of the inadequacy of existing laws do indeed imply a claim about what would be more just, but that this claim only makes sense insofar as one can appeal to another more adequate law (whether the projection of a new law or an existing ‘higher’ law). Exploring how Derrida negotiates a subtle path between classical Platonism and classical conventionalism about justice, the attempt is made to take seriously Derrida’s aim to affirm the idea of a ‘mystical’ foundation of the authority of laws by taking ‘the use of the word ‘‘mystical’’ in what I venture to call a rather Wittgensteinian direction’.

I
This more or less anonymous text, countersigned by thousands, attests to at least three and perhaps as many as six theses. First, that there is a history of laws. Second, that the history of laws relates a history of power. Third, that might is not right. Additionally, though these additions are unlikely to be immediately affirmed by its signatories, we might say, fourth, that law is constructed and can therefore be deconstructed. Fifth, that justice is undeconstructible. And, finally, sixth, that this work of deconstruction belongs to a movement of progress in the history of law.

This is perhaps a reasonable ‘simple summary’ of the kind of thinking that Derrida wants to affirm in his text ‘Force of law: The ‘‘Mystical Foundation of Authority’’’ (Derrida 1992). However, the subtitle to that text complicates that simplicity. The simple summary might suggest that the foundation of the authority of the law is external to justice: it is power, political power, a power which is arbitrary in the sense that what it constructs as law is simply in the service of its power. Derrida’s subtitle will announce a complication to that (as I will call it) political conception. The complication is further complicated by the fact that while he will want to affirm something said in it, his subtitle quotes the words of someone else (and he includes the quotation marks in the subtitle), and in order to affirm it he will want to take it in, or read in it, a direction other than its intended one. Rather than simply the political foundation of authority, Derrida’s subtitle speaks (in quotes) of the ‘mystical foundation of authority’. And within the space he subsequently opens up for thinking the problematic relation between law and justice announced by the simple summary, Derrida will also affirm that ‘it is just that there be law’(p. 22).

Derrida became a significant presence in discussions of ‘theory’ during the late 1960s. However, with the publication of ‘Force of Law: The ‘‘Mystical Foundation of Authority’’’ in 1992 it became impossible not to register a special connection between what Derrida was calling ‘deconstruction’ and specifically legal theory. In that essay Derrida drew his own work into relation with themes right at the heart of legal thinking, and did so in a new and dramatic way: deconstruction, the work of reading the movement of the Western philosophical heritage (which was disclosed therein as never simply philosophical through and through),was not to be thought of merely as a procedure or practice or process that promised a more just theoretical end or some kind of judicious advance for critical thinking, but as the very movement of justice in its relation to law. ‘Deconstruction’, Derrida announced, ‘is justice’ (p. 15).

There had been writings by Derrida on law-related themes before, and a number of legal scholars had attempted to apply lessons from deconstruction to lawyerly concerns.
Legal philosophy, one might think, could do much more than ‘apply’ or ‘use’ Derrida, or find his work‘ helpful’ for already existing concerns or ambitions; it could retrace its steps and learn anew how to read its own heritage, formation and problematic field.
As I have tried to show elsewhere, this is not what happened. On the contrary, many of those most keen to find Derrida ‘helpful’ to their cause in legal theory cut to the chase: the question is not the philosophical one about the foundations of legal authority and the possibility of justice, but the political one about the violence of existing legal authority and the current absence of justice.

The latter are themes for Derrida, without a doubt. Indeed, what, in ‘Force of Law’ he calls ‘the experience of inadequation’ of existing laws with respect to justice (1992, p. 20) is fundamental to his effort consistently to follow, as far as possible—though insisting as well that it is not ‘a true distinction’ (1992, p. 22)— the kind of contrast between laws (droit) and justice that is in view in the simple summary. And Derrida is equally insistent that the aporias he attends to should in no way stop one in one’s tracks (leaving one without a path, a-poros), and thus prevent one from getting actively involved in ‘juridico-political battles’ (p. 28). On the contrary, what is required, he argues, is not to take ‘emancipatory battles’ beyond the law, but to take the law, or at least the element of calculation that he regards as essential to legal reasoning, into every field in which there is an appeal to justice. As we shall see, the idea of the calculability of law here relates to the generality of a rule, and of reasoning that in principle would apply to anyone. The corresponding ‘incalculability’ of justice that Derrida also insists upon relates to decisions which are themselves always singular, concerning individuals or collectivities that are radically irreplaceable in situations that resist generalisation. Law, Derrida argues, is nevertheless the best way, the most just way, we have for organising a response—a politicizing response not in the least excluded—to such singularities: ‘incalculable justice requires us to calculate’ (p. 28), it provides the institutional apparatus par excellence through which we can engage in ‘emancipatory battles that remain and will have to remain in progress’ (p.28). Moreover, it enables us to do what we can not only in already identified ‘territories of juridico-politicisation’ (p. 29) but also in new and presently under-discussed areas. Derrida runs through an open list of examples, many of which would be familiar in what is today called ‘applied philosophy’: ‘the area of laws on the teaching and practice of languages, the legitimisation of canons, the military use of scientific research, abortion, euthanasia, problems of organ transplant, extrauterine conception, bio-engineering, medical experimentation, the social treatment of AIDS, the macro- or micro-politics of drugs, the homeless, and so on, without forgetting, of course, the treatment of what we call animal life, animality’ (pp. 28–29). It is in view of a history of progress in the development of law in the past and hope for success in emancipatory battles like these that Derrida will insist, as I have indicated, that ‘it is just that there be law’(p. 22).

But what about the contrast between philosophical questions and political questions? That, surely, is alien to Derrida, alien to the thought that discloses the Western philosophical heritage as never simply philosophical, but as, for example, fundamentally ethnocentric or Eurocentric.
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What is the focus of Derrida’s ‘philosophico-deconstructive’ reflections on law and justice?
Derrida had contrasted what he wanted from his deconstructive questioning from ‘(with all due respect to Stanley Fish)’ a purely theoretical discourse. Nevertheless, it takes its orientation from an effort to negotiate a new theoretical passage between the two great traditions which have dominated theoretical philosophy of law for centuries: Platonism (and its related idealist and intellectualist variations) and conventionalism (and its related empiricist and historicist variations). By Platonism I mean the theoretical stance claiming that a satisfactory response to the question ‘what is justice?’ requires rational, theoretical, insight into the idea of justice; ultimately a matter of grasping the ideal form of human social and individual life. By conventionalism I mean the theoretical stance claiming that legal institutions and laws have their ‘foundation’ in what are ultimately arbitrary and contingent conventions. The latter demands of anyone seeking to understand what is called ‘justice’ that he or she adjusts his or her attention and reasoning to something like the ‘customary ways of going on in some historical time and place’; the former demands that he or she adjusts his or her reasoning to something like ‘the truth of justice as such’. In contrast to both, the reader of Derrida’s ‘Force of Law’ will find an emphasis on performativity (developing J.L. Austin’s ground-breaking work on performative utterances), which challenges the privilege accorded to truth and theoretical cognition that one finds in classic Platonism, and equally, an emphasis on a certain unpresentable ‘there is’ of justice which challenges the reduction of justice to arbitrary rules and local customs that one finds in classic conventionalism. Derrida signals the route for his passage between these positions when he states that his central argument ‘takes the use of the word ‘‘mystical’’ [as found in conventionalist texts by Montaigne and Pascal] in what I’d venture to call a rather Wittgensteinian direction’ (p. 14). ……

When Derrida’s work became fashionable in ‘theory’, it was largely received as a novel and radical critique of the heritage of Western philosophy. I think that idea of it was enjoyed so much at least in part because it was regarded as enjoining the destruction of that heritage. But right from the start Derrida had insisted that ‘deconstruction’, as he understood that, was not destroying. It was not rejecting. Indeed, Derrida insisted that he ‘loves the texts that [he] reads in a deconstructive manner’(1988,p.87). What he wants is not, of course, to repeat the way those texts have tended to be read (even—perhaps especially —by themselves as it were),but to open them, and thus to open the heritage, to a future beyond that self-understanding, and to attest or bear witness to something of this movement already at work and underway within them. If deconstruction announces a kind of break or passage beyond the classic constructions of the philosophical heritage, this is not effected through a critique or intervention from outside it, but this opening — resisted as it certainly is by the dominant structures of its formation —is disclosed within the very heritage itself. Deconstruction attests to the movement of a heritage breaking with itself beyond itself ‘within’ itself.

That ‘beyond’ he calls ‘the future’. …… …….
Derrida also calls this endless movement an openness in every here and now to justice to come. And it is his thoughts specifically about justice that I am going to be exploring in this essay, and how these illuminate both legal reasoning and the limits of justification in legal judgement.

II
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Whenever anything is appealed to as a law in force, we can always step back at each point and ask questions about the authority that brings the law into force, or gives the law force. So, and this is Derrida’s question: what is the origin of the force of law?

In order to bring the regress to a halt one might distinguish between the force of Law of an existing authority, and the coming to force of such a power. It would seem that the latter could not be authorized by any anterior legitimacy, and hence can only be in force from force itself.

With respect to this case, the coming to force of a ruling authority, whatever movement or power brings it into being must be a movement that is in itself, as Derrida puts it, ‘neither legal nor illegal’ (p. 6).

Does this mean, as a crude reading of the simple summary might suggest, that the law is to be seen as ‘in the last instance’ an instrument at the service of an arbitrary power? The law certainly comes to be in history, and ‘to be’ for the law requires a force that has to be, in a certain way, before it. But Derrida resists an historicist reduction of this point, and will argue that the ‘neither legal not illegal’ force that founds the law is not simply external to it. The law will not be seen as the instrument of a force, whether economic, political or ideological, that would exist outside or before the instruments of legality.

The point is a logical one: the sense in which it is before the law is that no justificatory discourse could provide a metalanguage for it that is prior to its institution, or if we did have some justificatory discourse then we could just ask: and where does the force of that derive from? We would again move on our regress—or move in a circle. Derrida’s response will be to deny both that justification comes to an end with a founding act that is self-justifying (or, say, intrinsically just), and to deny that the intrinsically ‘violent structure of the founding act’ makes the law simply an instrument of power.

Derrida’s difficult claim here, the point that will distinguish his thought from an attractive interpretation of the simple summary, is that this moment of violence before the law, which founds the law, is not simply external to the law nor is it something that might be eliminated by an ideally just regime. I am going to try to give some accounting for this thought—a thought which holds off from the political temptation to reduce law to an instrument in the service of power.

III
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Derrida appeals to the idea of a ‘‘‘mystical’’ limit’ (p. 14) that every discourse bumps up against in its effort to find the origin of the force of law. This mystical limit will, he says, reappear at the supposed origin of the conventions of any performative. So at every stage where we seem to find something from which we can establish the source of the force of the law, Derrida will invite the question of its authority. At this point his argument shifts from Austin to another philosopher of language, to Wittgenstein. While he takes the word from a conventionalist text by Montaigne, Derrida says he will ‘take the use of the word ‘‘mystical’’ in what I venture to call a rather Wittgensteinian direction’ (p. 14): a Wittgensteinian sense of the mystical limit.

This is already a novel turn. The critique of conventionalism in the philosophy of law has a standard opponent, and the standard opponent to the conventionalist is the Platonist. The Platonist argues that the force of law derives not from customs and conventions, but from a sense of what justice is that is radically independent of anything we historically elaborate in its name. Our conventions are the right ones if they accord with justice and justice would be thought here as something before the law which the appropriately adjusted mind would grasp: we grasp the form or the truth of justice, and we would do so in a theoretical cognition, something that might be expressed in a constative way. For the Platonist it will be the truth of justice that will underpin the force of law.

That is the standard opposition: between the conventionalist, for whom the force of law derives from contingent conventions, and the Platonist who says that it derives from the form of justice itself utterly independently of historically contingent conventions.

So the fact that Derrida engages critically with conventionalism brings his account into a relation to the standard alternative, with Platonism. And in fact his position has characteristics quite similar to Platonism. However, because he is going to affirm a certain performativity (irreducible to a kind of knowing) internal to the moment-of-judgement in which, as we say, justice is ‘done’, his account is also importantly different from a classic Platonist. There is a constellation of three positions on justification here. A Platonist sense of the limit is to say that justification comes to an end with a legal argument that is rationally compelling, which demands that it is guided and compelled by our grasp of what is just. The conventionalist says that when justification comes to an end we come to (ultimately arbitrary) conventions. Derrida invites a Platonist response to conventionalism by insisting against the conventionalist that when we hit the ‘final convention’ we can still ask where its force comes from. Against the Platonist, however, Derrida will insist that there is no justification—which will ultimately be, as the conventionalist says, an appeal to legal conventions—which closes off every question concerning what it requires of us. The limit we hit when we arrive at conventions is not something we can go back behind, and yet the fact that justification comes to an end with these conventions does not mean that they are the origin of the force of law. Justification comes to an end somewhere. However, it ends only with a convention, not with the demonstration of a truth. This is not a dogmatic limit authorised merely by an arbitrary authority—so that ‘might makes right’—but what Derrida will call, following his ‘Wittgensteinian’ turn, a ‘mystical’ limit.

IV
An ‘experience of inadequation’ of American penal laws (and their application) implies a claim about what would be more just, and hence makes sense only insofar as one can appeal to another more adequate law (whether the projection of a new law or an existing ‘higher’ law). …..
The law or laws through which we (intelligibly) express our sense of the inadequation of existing laws speaks of something about which we cannot intelligibly speak: namely, that there is justice, or to put it better, about the ‘there is’ of justice. This is what we might call an acknowledgment of the mystical limit, and I think it is fundamental to Derrida’s argument in the philosophy of law and justice.

The Platonists say that we have access to the essence of justice. Wittgenstein is saying that insofar as we can speak of access in such a case, it is never given as something that can be put into words. In the midst of law—in the intelligible language of law and laws—the ‘there is’ of justice makes itself manifest. And if you were to say ‘our eyes are opened to justice’ in this context you would have to say equally that we are utterly in the dark. I think this is a very good comparison for thinking about the Derridean thought of the origin of the force of law. It is the nonpresence of the illuminating but unilluminated ‘there is’ of justice that is opened to us in the midst of law. And hence it is ‘just that there be law’.

In ‘Force of Law’ Derrida asserts that what he has called ‘the mystical’ is related to what he calls the aporetic character of any experience of the ‘there is’ of justice (p. 15). This relationship between present laws and the unpresentable ‘there is’ of justice that is invoked whenever there is ‘a call for justice’ is closely related to what Derrida calls the experience of an aporia in the situation of legal reasoning. An aporetic situation in general arises when you are confronted with a puzzle or contradiction which you cannot find a way out of or beyond. A ‘poros’ is a path in Greek, ‘a-poros’ is where you have no path. The experience of aporia that Derrida will explore as internal to the call for justice makes of the latter an ‘experience that we are not able to experience’ (p. 16): the ‘there is justice’ is never given in the form of being present or as something present. This is a crucial distancing from classical ‘theoreticist’ Platonism for which there is a kind of (mental) seeing (theoria) involved here: having our (mind’s-) eyes opened to the ideal logos of justice. Derrida does not completely deny this because he wants to say that the experience of the inadequation of laws presumes this openness to justice. However, Derrida wants to say that this is not an openness to some ideal content that can be put into words, not an openness to anything presentable in the form of something present, not even in the form of an anticipated future present of ideal adequacy or an idea in the Kantian sense. Indeed, as we shall see, having your eyes opened to justice is in a certain way a matter of having your eyes…closed.

To clarify the aporetic character of legal reasoning, Derrida develops a (non pure) distinction between justice and law. Laws have a structure of generality. They apply to any one and they apply to all equally at all times. And when we get involved with legal reasoning, laws and general standards of evidence are articulated in a kind of calculation of a verdict. The justification for a certain verdict, what legal people call ‘argument’, legal argument, can thus be represented as a form of rational calculation. By contrast, according to Derrida, justice concerns a relation that always turns out to be in some way singular: each case is other. The occasion (the case, the defendant) is each time new, and this ‘each one the only one’ brings in a dimension that Derrida calls incalculable. But now the tension between (general) law and (singular) justice would seem to make every effort at doing justice through legal reasoning strictly impossible. If law always implies an element of universality and if justice is always related to the singularity of the case, the unique case to which we must do justice, then law in its generality, would seem to make the rendering of justice through legal reasoning impossible. For Derrida, however, this tension is not a fault in the law that we should strive to remove: it is irreducible, unsurpassable. It is something one can only endure: it characterises the situation for the one who is involved in legal reasoning that they are obliged (by justice) to calculate with the incalculable. It is in law, in the generality of the law, a generality that applies universally, that this owing of justice, this singular owing of justice to the other, is most justly achieved.

Now, that would seem to provide a really easy conventionalist route out of any aporia. Within the situation of existing legal norms and customs all you have to do—all you can do, the best you can possibly do—is act in conformity with what the law requires. So is that it then? Is an aporetic condition avoided because it is just to calculate with the incalculable. No.

Why so? Consider, first, conformity to the law, doing what the law demands of one, and going on with it in the same way as before. Generally speaking, no Judgment or decision will be regarded as just if the judge does not refer to any law at all. If the judge just improvises, leaves aside all rules, all principles, all precedent, we would not say this is a process of justice, of the just decision. Justice, Derrida puts it again, requires us to calculate: it requires legal reasoning.

On the other hand, if the judge simply applies a rule and does so in conformity with all given rules and conventions that would authorise calculation, if the judge makes himself or herself, as Derrida puts it, a kind of calculating machine, a machine that simply outputs a programmable application of a rule, the unfolding of a calculable process, then while that decision may indeed be legal it would not guarantee, says Derrida, that it will be just.

In fact, there are two limits about the just exercise of the law: no exercise of the law can be just unless it is neither pure improvisation nor pure conformity. Here, and within the structure of legal reasoning and judgement, we have an aporia.To be just, the decision cannot be made purely mechanically. It must be made by someone who we would call free and responsible, not mechanical, not simply making himself or herself into a calculating machine. The undertaking of legal reasoning to a decision must be made by someone who is acting in a knowledgeable way in the midst of the law, not operating in a vacuum or in pure improvisation (pure irresponsibility). But this responsibility is no longer responsible if it is pure conformity (pure irresponsibility). The just decision demands both that one acts in the midst of law and in a certain freedom from it, in what Derrida calls a suspension of the law as calculable programme. This is the aporia in the relation of law and justice, and it arises because the just decision must take place both in the midst of the law (reason) and in suspension of the law (freedom). Each time and without any assurance that it is just one must (mechanically) reason but one must also (freely) decide.

The just decision must be neither pure play or improvisation nor pure mechanical calculation. It is, Derrida suggest, recalling Kierkegaard, a moment of madness, a madness within legal reasoning, which is good.

The word ‘madness’ may be thought inappropriate here because when we talk madness we are talking about somebody who is neither reasonable, nor free and responsible. But here, it is precisely a matter of madness as rational responsibility; beyond the programmable and the calculable it signifies a sort of ultra-responsibility on the part of the judge (the deciding authority). So, for Derrida, this notion of the just decision is radically tied toa discourse on responsibility in the midst of law: a discourse of responsible judgment. It is imperative to argue, to reason, to give reasons to provide a justification. But reasoning and justification comes to an end somewhere—and then one must decide. And at that moment, in the moment of madness, at the moment of greatest responsibility, one is precisely not the autonomous, sovereign will of a rational speaking subject, the cogito or the ich denke: in the beginning was the deed, the response, a certain leap in the dark.

So we have the violent structure of the founding deed. But Derrida clearly wants to distinguish this from the assumption behind the simple summary that construes law as merely in the service of arbitrary power, a bare assertion of hegemonic will, where ‘might makes right’. On such a view, the law will be distinguishable from justice until the political question is dealt with and the interests of justice as such reigns supreme. For Derrida, however, a certain violence, a certain limit of justification, is irreducible, unavoidable — and just. It is just that there is this violence.

The conventionalist cannot get beyond conformity to the law. The classical Platonist, on the other hand, refuses to accept that laws are mere conventions, and Insists that the well-adjusted mind has its eyes opened to ‘justice as such’, and hence that the just decision is oriented towards the truth. Derrida shares the Platonist’s objections to conventionalism, and he retains the Platonist’s sense of the importance of reasoning and of ‘getting all the facts’. However, he shares the conventionalist’s objections to the Platonist idea that there is a truth of justice, completely independently of anything that we do. Derrida’s is a non-conventionalist anticognitivism about justice. The attempt to ground decisions on a purely constative operation is always resisted by Derrida. On his account, one can never wholly remove the performativity that belongs both to the founding acts and to decisions they make possible. Wherever there is law there is a performative dimension irreducible to truth, a performativity that speaks of the unpresentable ‘there is’ of justice.

Derrida thinks that even the most revolutionary judgment, the one which would set a completely new precedent or found a new law, still as he puts it, plays on something from an ‘anterior law’ (p. 41) that it will extend or radicalise. So the idea of a pure historical break (as if revolution was a complete separation from the past) is always a kind of illusion for Derrida: there is always some ‘anterior law’ in some form. The fresh judgment, says Derrida, can very well, must very well and in some way conform to preexisting law. On the other hand, it cannot merely do so as if every other, every case, is already anticipated in the horizon of present law leaving nothing to come. And justice is, Derrida thinks, that experience without experience of the ‘to come’ of justice, beyond any horizon of present legality. It is the truth of the simple summary.

But the simple summary is ultimately misleading. Because of the generality of the law, and the singularity that is always involved with questions of justice, the ideal of the finally just system of law, the idea of a system of law of ideal adequacy that would, as it were, deliver justice beyond further reform, and which, crucially, could anticipate every other, is a theoreticist illusion. Indeed, a sort of ‘transcendental illusion’: a shadow cast by the moment of madness that speaks without speaking of the ‘there is’ of justice.

V
I want to finish with a story. The title of the short story is ‘Before the Law’. It is a short story by Kafka in his novel The Trial.
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The structural point that is perhaps most interesting here is the narrated fiction of the singularity of the Law as it is described at the end by the doorkeeper, and the generality of the Law that the man from the country assumes must belong to it, something applicable not just to him but to everyone and at all times. What is revealed to him at the end is that the gate to the Law was only made for him, that the Law is Law only insofar as it maintains a relation to the singular, the unique, the unreplaceable, the unsubstitutable. It will be before the law that the ‘there is’ of justice breaks through inextinguishably—but never in the form of something present or presentable: always, in every present, ‘not yet’ in view.

I had said that I was intrigued that my colleague had interpreted Derrida’s explicit Wittgensteinian reference as a reference to the early Wittgenstein. But we should note that the idea that justification ‘comes to an end somewhere’—and the idea that when reasons give out we ‘act, without reasons’ are quotations from the later Wittgenstein(1958,§484,§211).And I am not convinced that Wittgenstein’s thought on this topic changes much at all. It is not as if, for example, the later Wittgenstein replaces a mystical limit with a practical one. It is not mysticism or pragmatism, ever. Rather, he speaks against the explanatory voices of both historicist conventionalism and intellectualist Platonism, and does so throughout with the phenomenological voice of description of what we do. Derrida’s philosophico-deconstructive questions in the philosophy of law, and his double-handed engagement with conventionalism and Platonism belongs with this tradition, close especially to the Husserlian critique of intellectualism and historicism in his work on the origin of geometry (Husserl 1970, pp.353–378). Derrida’s text does not offer a history of conventions, nor an analysis of a pure ideality. Its ides with the conventionalist in thinking that the only thing we can milk out of different legal institutions are customs and conventions, and it sides with the Platonist in thinking law has a history. But it does not conceive that history either relativistically or teleologically: there is progress, there are advances, through juridico-political struggles against the experienced inadequacy of prevailing laws, and these advances are real and necessary. But they do not have a telos in a condition of ideal adequacy. Rather, they relate to concrete tasks brought to light by the opening onto the ‘there is’ and‘ not yet’ of justice that takes place in the midst of law.

Force and “Mystical Foundation” of Law: How Jacques Derrida Addresses Legal Discourse

Deconstruction have revolved around phenomena or concepts such as “promise” (promesse), “witness” (témoinage), “responsibility” (responsabilité), “gift” (don), “justice” (justice), “hospitality” (hôtilité) and “friendship” (amitié) – in addition to others.

Law and Legal Discourse
Force de loi (“Force of Law”) is made up of two parts, each of which has its own specific perspective. In the first part of the text, Derrida explicitly addresses lawyers; it was written as a lecture for a colloquium of the Cardozo Law School in 1989. Here, Derrida “addresses” legal discourse from within – in a quite literal sense. The topic of this part of Force de loi is the question of the practical possibility of justice in law as law.
The second part of the book consists of a reading of a classic of the political anarchistic questioning of the constitutional state (Rechtsstaat). At issue is the controversial essay “Zur Kritik der Gewalt” which Walter Benjamin wrote in 1921. In this second part of his reflections, Derrida views legal matters – as Benjamin had – as it were from an external perspective. The topic from this perspective is both the question as to what law as law – that is, law as a whole – is based on as well as the question of the possibility of justice outside of law.

Le droit n’est pas la justice / law is not justice”7 – with this Derrida takes the same point of departure as Benjamin (and it is also common to Emmanuel Levinas). The question of justice cannot be treated within law, it must be treated as the question of the justice of law. But law is force – and not just in the sense that in particular cases it ordains certain sanctions, but rather by virtue of the fact that law is based on the enduring possibility of a certain force or violence to enforce laws, that is, on a force (or violence) by means of which it ensures its “applicabilité / applicability”8: as law, as a rule. Walter Benjamin calls this “rechtserhaltende Gewalt”, a law preserving violence; and the point for him is that it is not a result of law, but rather is given with the very form of law. Of a law which preserves itself as an order only as a whole, thanks to a state monopoly on violence (which is tacitly presupposed in the application of law).

Derrida’s reflections emphasise the same point. Law is per se and as such the bringing to bear of a rule, it is “l’élément du calcul / the element of calculation”9, and the validity of any rule is based on and even actualizes violence. Law has the generality of an act which does not address an addressee in the singular – and this aspect contains a sort of violence which is irreducible and inconsistent with the idea of full justice. Derrida draws a parallel between this generalizing violence of law and the violence of language. Language, too, is the application of rules and misses the singularity of a situation, of an “address”. And indeed, reliance on law, on jurisprudence and on jurisdiction, presupposes the regularity of language, more precisely, the disposition to linguistic generalization.

But Derrida is not solely interested in this point, the dimension of “violence conservatrice / the violence that conserves”.10 A second dimension is at least equally important for him, the dimension of a latent reference to violence which law contains from the very beginning. Benjamin emphasizes this aspect with the term “rechtsetzende Gewalt,” which could be translated into English as constitutional or legislative violence. Derrida translates it into French as violence fondatrice (English: violence that founds) (see further on page 1006/1007). What is meant is that all law is based on violence inasmuch as there is no original law, but rather all law was instituted at some time. Inasmuch as the law presupposes the legitimacy of its own origin, it ultimately refers to an extralegal act, to an originating act of violence; and this unnamable instituting violence constitutes the groundwork of the authority of law whenever the law (or statute or an individual judgement) explicitly appeals to the “legitimacy” of its own institution. This historically equivocal dimension of the establishment of law is an obscure foundational secret which recurs in the performative character of legal speech; following Montaigne, Derrida calls it “mystical” in Force de loi.

Il y a là un silence muré dans la structure violente de l’acte fondateur / Here a silence is walled up in the violent structure of the founding act“. The “mystical” is an abyss in the heart of what is supposedly well founded: vanished cruelties at the moment of constituting a state, forgotten terror when new law comes into force, events which remain historically “ininterpretables ou indéchiffrables / uninterpretable or indecipherable”.

This is the dimension which Derrida emphasises in his reading of Benjamin – nota bene because Zur Kritik der Gewalt addresses the violence which preserves law and that which establishes law not merely as attendant circumstances or as a background of law, but as a constitutive factor of what constitutes law as law, or, as I would like to put it, its juridicity, its juridic character as such. Now, Walter Benjamin incorporates reflections into his criticism of violence (not violence within the law nor through the law, but the violence of law) which Derrida is only partly willing to follow. Benjamin regards the connection between the violence which establishes law and that which preserves it as a fatal mixture. To put it more precisely, there is a specific myth-making at work in both cases: concrete means of force or violence are placed in a context of justification so as to minimize their violent character, and abstract ends are instrumentalized in order to disguise the illegitimacy of the means. Benjamin calls this historical superimposition of means and ends a “mythical” violence in history; the historical forms of instituting and preserving legal orders, that latest of which is in the epoch of the state, constitute a “cycle” of legitimation for something which on principle cannot be legitimated.

In Zur Kritik der Gewalt, Benjamin makes a radical step at this point. He is completely separating the realm of means from the question of ends – thus taking leave of the idea of legitimating ends: such “pure” ends are unreal, perhaps “divine,” but at any rate inaccessible to humankind. Against this background, Benjamin’s real interest is in the question of the possibility of “pure means,” and in the attendant question as to whether such “pure means” – if they are conceivable – must without exception be qualified as violence, or whether there are certain conditions under which they need not be.

As is known, Benjamin affirms the possibility of pure means – that is, a practice which is situated fully on this side of the context of aims and legitimation, on this side of the horizon of (juristic?) legitimacy. The Criticism of Violence lists examples: virtues such as “kindness of heart, love of peace, inclination, trust”13 which are situational paths of individual communication, whether in diplomacy or in love; and paradigmatically: language where it consumes itself free of aims in dialogue as an end in itself, as a “technique of civil accord,”14 as he puts it in the text.

Derrida answers the question as to whether “non-violent resolution of conflicts is possible” (to which Benjamin says, “… doubtless”15) with a “no.” This “no” is a matter of principle: Force de loi attacks equally the idea of non-violence as well as the idea of “purity” and the ideal of “criticism” in making a “distinction” or “decision” with which the “pure” might be distinguished from other things.
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(Legal) Justice
“Ultimate insolubility of all legal problems”18 – this is also the point of departure for the first part of Force de loi. Law admits no pure solutions, no good decisions, and in this sense it must admit to being violent just as, according to Derrida, language – everything in which mediation is somehow at work – is necessarily “contaminated.” Force de loi speaks of a “contamination différantielle / a contamination différantielle“.19 Thus, the means which are supposed to lead to justice are contaminated with the violence which (as Benjamin pointed out) is proper to law as law, and this contamination is immediately associated with the basic philosophical idea of deconstruction: the fundamental movement of difference itself has – in regard to that – a certain structure, difference as différance, as Derrida puts it with a modification of spelling which cannot be heard. And this structure of mixture, of ungraspability, of a movement which can never be conceived as pure presence, as ultimate, as decidable, as clear-cut, or the simple movement of something slipping away from our grasp, showing that the character of something being some thing is a metaphysical illusion, such that something strange, alienating, the impression of an other (perhaps a trauma) remains – in sum, this structure of difference/différance irrevocably returned in the practice and dilemmas which characterize droit and justice in French, in English law, legal discourse and the tradition of justice which they open, in the German Recht, Rechtsdiskurs and Justiz as well as Gerechtigkeit.

Even though justice within law and outside of law is impossible, can there then still be something like justice?

Other Commentaries on "Force of Law"

Justice is what is promised by law; its possibility is what keeps us obedient, patient, and hopeful.

In terms of the concept of waiting for justice specifically, Derrida demonstrates a typically (for him) paradoxical position. On the one hand, in “Force of Law” he tells us that justice “doesn’t wait. It is that which must not wait.”[5] He goes on to say that “a just decision is always required immediately, ‘right away.’ It cannot furnish itself with infinite information and unlimited knowledge of conditions.” (26). Citing Kierkegaard, he calls this “instant of decision” a “madness” (26). And yet, in a way that Derrida acknowledges as paradoxical, justice, although it cannot wait, is also not quite here, not quite with us in our own time:

it is . . . 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. Justice remains, is yet, to come, à venir, it has an, it is à venir, the very dimension of events irreducibly to come. . . . “Perhaps,” one must always say perhaps for justice. (27)

‘Force of law’ has as a consequence been said to require what is impossible: simultaneous compliance with the universal rule and its pertinent individualised exceptions (Rosenfeld 2005)

Law has been denounced for its generality and (representational) violence and therefore its inability to do justice to the singular other.

‘Force of law’ has been read as requiring of decision-makers to take personal responsibility for their decisions, rather than hiding behind or seeking to justify their decisions solely with reference to the law (Thurschwell 1994)

Derrida makes this clear also when he discusses the three examples of the impossible experience of aporia in ‘Force of law’ and when he says that a judge cannot, if she wants to do justice, simply apply a rule to a case; there has to be a suspension or destruction of law, and a reinvention in each case. This is because ‘[e]ach case is other, each decision is different and requires an absolutely unique interpretation which no existing, coded rule can or ought to guarantee absolutely’. There is no opposition at stake here between the singular case or singular others on the one hand, and the generality of law on the other. The tension, differantial relation or aporia lies between incalculable justice or singularity ‘reconceptualised’ as a general economy on the one hand and law as a restricted economy on the other.

In elaborating on the second aporia in ‘Force of law’, Derrida likewise makes clear that ‘undecidability’ does not, as is sometimes contended mean relativism. Undecidability is in other words not merely about an oscillation or tension between two different approaches to a matter, two different (calculable) interpretations of the same rule or between the universality of law and the singularity of a unique situation. The ‘undecidable’ rather corresponds with the notion of justice as elaborated on above:

Undecidable – this is the experience of that which, though foreign and heterogeneous to the order of the calculable and the rule, must [doit] nonetheless – it is of duty [devoir] that one must speak – deliver itself over to the impossible decision30 while taking account of law and rules.

Is Derrida engaged in a hair-splitting exercise?

A mystical limit (evoking Montaigne and Pascal) is how Derrida proposes to interpret what they call the "mystical foundation of authority" of laws. Since the origin of authority, the foundation or ground, the position of law cannot rest on anything but themselves, they are themselves violence without ground. But this is not to say that they are in themselves unjust, in the sense of illegal. They are neither legal nor illegal in their founding moment for they exceed the opposition between founded and unfounded.

Derrida's (direct) addressing of the problem concerning the possibility of justice - that is, the possibility that is possible as an experience of the impossible, of the aporia.

Derrida… writes of friendship, community, and a democracy “to come”…. This is not to say that they are to come in a calculable future time. Rather, they are always “to come.” He is clear… that what he calls “the messianic“ is not a matter of a future coming in time, but of a coming that always remains a coming, and is never present…. This is another way to talk about what Derrida has already called différance. Derrida’s point is neither that the community to come is future in time, nor that it is never going to come in any sense at all. His point, rather, is that its coming is not a matter of presence, not a matter of totality, not a matter of everything being all sewed up and everyone living happily ever after. Just as the constant deferral of meaning, for Derrida, does not imply that there is really no meaning, so the deferral of friendship or of community does not imply that there is no real friendship or community. But they will not be totality. They will not be present.
(Peter C. Blum, For a Church to Come: Experiments in Postmodern Theory and Anabaptist Thought (Herald Press, 2013), pp. 118-119.)

The main point that Jacques Derrida wishes to establish in his 1992 essay Force of Law: The “Mystical Foundation of Authority” is that law – droit – is the result of an act of violence whose function is for the sovereign power to exercise its authority, at the moment of inserting the law into society. This authority is by no means just nor unjust but rather, according to Montaigne, it rests on a “mystical foundation”:

In other words, we obey laws “not because they are just but because they have authority.” (p. 12) One straightforward to understand how law and justice are so different is by pointing out the impossibility to find a single example of a universally just law. ….

According to Derrida, there is thus an “unstable distinction between justice and droit” (p. 22) which is the main difficulty in analyzing these concepts. Everything would still be simple if this distinction between justice and droit were a true distinction, an opposition show 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 “enforced”. Deconstruction always finds itself between these two poles. (p. 22)
(Sofian Audry (2011): A Summary of Frames of War (Butler) and Force of Law (Derrida))

We usually regard law and justice as a limitation of freedom, but although law can be analyzed as deterministic and powerful, Derrida shows us, without constituting a binary opposition, that justice can be analyzed as indeterminate and powerless which makes democracy possible since it can maintain freedom.
How can we understand justice as suitable to maintain freedom? Why does its indeterminate character and powerlessness make democracy possible?

The Ethics of Interpretation: Toward Critique Without Judgment

Commentary on Part II: Nazism and the ‘Final Solution’: Probing the Limits of Representation - Derrida's reading of Walter Benjamin’s Zur Kritik der Gewalt (“Critique of Violence”).

In the title Zur Kritik der Gewalt, “critique” doesn’t simply mean negative evaluation, legitimate rejection or condemnation of violence, but judgment, evaluation, examination that provides itself with the means to judge violence. The concept of “critique,” insofar as it implies decision in the form of judgment and question with regard to the right to judge, thus has an essential relation, in itself, to the sphere of law or right. (p.31)

For Benjamin, according to Derrida, critique implies judgment, but it does not necessarily mean negative evaluation or condemnation. Most importantly, if critique does entail decision in the form of judgment, it also implies the questioning of the right to judge. Derrida ultimately condemns Benjamin’s text by stressing its complicity – its participation, involvement, and collusion – with the discourse of Nazism and the final solution. But does Derrida have the right to pass this judgment? Derrida himself suggests that he does not. Given the fact that Benjamin’s text was written in 1921 before the rise of Nazism, and given Benjamin’s own suicide in 1940 at the border between France and Spain in direct response to the threat of the Nazis, Derrida acknowledges that “we would not have the right or we would have only a limited right” (p.57), to ask what Benjamin might have thought of Nazism and the final solution based on his “Critique of Violence.” Yet immediately following this recognition, Derrida asserts that, “in a certain way [he] will do just that” (p.57).

Why? What motivates this judgment that Derrida acknowledges he has no right to make? As I will attempt to make clear in this essay, it is a certain fear. Derrida begins his conclusion by asserting that he finds something about Benjamin’s text “intolerable.” Even more than its supposed affinities with “the worst,” what Derrida finds intolerable is a particular temptation that Benjamin’s text inspires: “the temptation to think the holocaust as an uninterpretable manifestation of divine violence insofar as this divine violence would be at the same time nihilating, expiatory and bloodless … a divine violence that would destroy current law through a bloodless process that strikes and causes to expiate” (p.62). Derrida writes: “One is terrified at the idea of an interpretation that would make of the holocaust an expiation and an indecipherable signature of the just and violent anger of God” (p.62). It is clearly Derrida himself who is frightened. But of whose interpretation is he afraid? Is it not his own interpretation of Benjamin’s text. It is certainly not Benjamin’s interpretation of the holocaust – it could not be. Has Derrida truly resisted the “temptation” that he identifies, or has he rather already been seduced? And if so, is Benjamin’s text solely responsible for this? Isn’t it possible that the complicity that Derrida fears most of all is his own – his own interpretation, his own implication in Benjamin’s text through the centrality of Benjamin’s text to his own? Interpretation is always relational. The interpreter can never be fully separated from, is always intimately bound up with, the object of interpretation. Derrida’s final words concern his desire to mark the “difference between these destructions on the one hand and a deconstructive affirmation on the other.” Yet it is precisely the co-implication of Derrida and Benjamin’s texts that I intend to chart here. In exploring this relationship, I will also be inquiring into the nature of justice, the justness of interpretation, and the relationship of judgment to both.

Commentary on Part I: Force of Law: The "Mystical Foundation of Authority"

In the first part of his paper, Derrida seeks to account for the “mystical foundation of authority” – a phrase he takes from Pascal who borrows it from Montaigne – through recourse to his notion of the performative. According to Derrida, law and justice emerge together through a performative force: “The very emergence of justice and law, the founding and justifying moment that institutes law implies a performative force, which is always an interpretative force”. This founding moment is a coup de force that “in itself is neither just nor unjust and that no justice and no previous law with its founding anterior moment could guarantee or contradict or invalidate”. Justice and law thus emerge together through a performative tautology, each being called upon to validate the other while both remaining groundless. This groundlessness is the mystical foundation of their authority.

Here Derrida pronounces that “deconstruction is justice.” Justice and deconstruction come together for Derrida by virtue of the fact that neither is deconstructible. Being not deconstructible, both are distinct from law, which is deconstructible. However, the paradox is that while deconstruction (and presumably justice) is distinct from law, it is law that insures its possibility. Already we can begin to see how Derrida will argue for a concept of justice that is distinct from law and yet whose possibility resides within law.

This will be a continuous tension in Derrida’s text: wanting on the one hand to hold on to the possibility of a justice that exceeds any given law and is never reducible to law, and wanting on the other hand to locate that justice within law. From the beginning of his text, Derrida has told us that he wants to reserve the possibility of a justice distinct from law – “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”. However, he has also made clear that this distinction is impossible to maintain: “the ‘sufferance’ of deconstruction, what makes it suffer and what makes those it torments suffer, is perhaps the absence of rules and definitive criteria that would allow one to distinguish unequivocally between droit and justice”. Justice and law emerge together for Derrida through a performative coup de force, and no matter how one might try to distinguish them, one is always confronted with the mystical limit of their origin.

However, this does not mean that justice, as distinct from law, does not exist for Derrida. Rather, it exists there in the mystical, in the impossible experience of that aporia. This is where justice resides for Derrida: “Justice is an experience of the impossible”. Deconstruction, because it aims at that aporia, is also associated with an experience of the impossible for Derrida: “The interest of deconstruction, of such force and desire as it may have, is a certain experience of the impossible”. And hence, justice and deconstruction come together for Derrida in their very impossibility, and paradoxically, in their very necessity, for “there is no justice without this experience, however impossible it may be, of aporia”.

The experience of aporia is associated with the moment of decision for Derrida. Thus we can see that for him, justice is connected to judgment from the very beginning. The possibility of justice, as distinct from law, resides within this aporia, but to the extent that Derrida agrees with Pascal that “justice without force is contradictory,” it is necessary, in order for justice to be realized, that a decision or judgment – the performative founding of a law – be passed. Thus, although Derrida wants to hold onto an idea of justice that is distinct from law, the two remain intertwined and implicated in each other. This paradox will become more clear as we explore Derrida’s explication of the aporia that is at the foundation of both law and justice.

Derrida provides three ways of thinking about this aporia.