The man in a room: Remarks on derrida's force of law

Law and Critique

Volumn 7, Issue 1, 1996, Pages 35-64

  Wolcher, Louis E ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

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EID: 0347644170     PISSN: 09578536     EISSN: 15728617     Source Type: Journal    
DOI: 10.1007/bf01128513     Document Type: Article

References (72)

1. J. Derrida, "Force of Law: The 'Mystical Foundation of Authority'", trld. M. Quaintance, Cardozo Law Review 11 (1990), 921-1045.
2. Ibid., at 921-23. One might say that Force of Law rejects the law of the excluded middle. In other words, Derrida refuses to play in a game one of whose rules is: "Either deconstruction permits justice or it does not -there is no third possibility."
3. W. Benjamin, "Critique of Violence", in P. Demetz, ed., Walter Benjamin: Reflections, Essays, Aphorisms and Autobiographical Writings, trld. E. Jephcott (New York: Schocken Books, 1986), 277-300,
4. originally published as "Zur Kritik der Gewalt", Archiv für Sozialwissenschaft und Sozialpolitik 47 (1920-21), 809-32.4 Supra n. 1, at 949.
5. Ibid., at 945.
6. N. Malcolm, Ludwig Wittgenstein: A Memoir (Oxford: Oxford University Press, 1984, 2nd ed.), 44.
7. M. Heidegger and B. Fink, Heraclitus Seminar, trld. Charles Seibert (Evanston: Northwestern University Press, 1993), 17.8 Sometimes translated as "all things" or "the universe": ibid., at 169 (Glossary). Robinson renders ta panta as "the totality of things" in this translation of the entire fragment: "And thunderbolt steers the totality of things". Heraclitus, Fragments, trld. T.M. Robinson (Toronto: University of Toronto Press, 1987), 43.
8. Supra n.7, at 16-17. The concept of the "hermeneutic circle" can be illustrated by paying close attention to the question "What is the meaning of the words 'is' and 'meaning'?". The meaning of the words in italics must already be understood by the reader (if only vaguely and unthematically) in order for the enquoted words to be interrogated as to their meaning. Yet the words that do the questioning, and the words that are questioned, are also the same words. One way to express this connection is to say that there is a "circle" running between that which is doing the questioning and that which is questioned. The circle is called "hermeneutic" to draw attention to the fact that what is going on here is an interpretation. (The word "hermeneutic" comes from the Greek hermèneutikè, meaning "interpretive," and before Heidegger it was primarily used as the name for the science or art of biblical interpretation.)
9. F. Kafka, The Trial, trld. W. Muir and E. Muir (New York: Random House, 1956), 267-69 (parable "Before the Law").
10. The reference to the striking-out of Being is from Heidegger's Zur Seinsfrage, discussed in J. Derrida, Of Spirit: Heidegger and the Question, trld. G. Bennington and R. Bowlby (Chicago: University of Chicago Press, 1989), 52. Strictly speaking, Heidegger proposed striking out the word "Being" under a line of erasure in the form of a cross (Kreuzweise Durchstreichung), to recall the "fourfold play of the world" that is brought together at the placing of the cross: ibid.
11. And Was Heisst this "Denken"! Compare M. Heidegger, What Is Called Thinking?, trld. J.G. Gray and F, Wieck (New York: Harper & Row, 1968), first published in 1954, as Was Heisst Denken?.13 Compare L. Wittgenstein, Tractatus Logico-Philosophicus, trld. D.F. Pears and B.F. McGuinness (Atlantic Highlands: Humanities Press, 1974), §7, at 74 ("What we cannot speak about we must pass over in silence") with L. Wittgenstein, Philosophical Investigations, trld. G.B.M. Anscombe (New York: Macmillan, 1958), §133, at 5 le ("The real discovery is the one that makes me capable of stopping doing philosophy when I want to -The one that gives philosophy peace, so that it is no longer tormented by questions which bring itself in question.")
12. Supra n,7, at 17. M. Heidegger, On the Way to Language, trld. P. Hertz (San Francisco: Harper & Row, 1982), is riddled with remarks like this.
13. This word appropriates an image from Robinson's translation of Heraclitus' Fragment Number 64: "And thunderbolt steers the totality of things". Heraclitus, supra n.8, at 43.
14. Tractates Logico-Philosophkus, supra n. 13, §6.44, at 73.
15. L. Wittgenstein, "A Lecture on Ethics", in J. Klagge and A. Nordmann, eds., Philosophical Occasions: 1912-1951 (Indianapolis: Hackett, 1993), 37, 41.
16. L. Wittgenstein, "Apropos of Heidegger", in B. McGuinness, ed., Wittgenstein and the Vienna Circle: Conversations Recorded by Friedrich Waismann, trld. J. Schulte and B. McGuinness (Oxford: Basil Blackwell, 1979), 68.
17. Finch says that "[tjhis is Wittgenstein's single reference, known so far, to Heidegger." H. Finch, Wittgenstein -The Later Philosophy: An Exposition of the "Philosophical Investigations" (Atlantic Highlands: Humanities Press, 1977), 262
18. n.5.19 M. Heidegger, An Introduction to Metaphysics, trld. R, Manheim (New Haven: Yale University Press, 1959), 1,
19. See supra textaccompanyingn.il,
20. Finch, supra n.18, at 263.
21. That this marks a difference between the thought of Heidegger and that of Wittgenstein I am hardly the first to notice. See ibid.
22. Preliminary proof that he knows this may be found in the following fragment of his song: Streets that follow like a tedious argument Of insidious intent To lead you to an overwhelming question.,. Oh, do not ask, "What is it?' Let us go and make our visit.
23. T.S. Eliot, "The Love Song of J. Alfred Prufrock", in Selected Poems (San Diego: Harcourt Brace Jovanovich, 1930), 11.24 This paragraph appropriates images from a stanza in The Love Song of J. Alfred Prufrock (ibid., at 13): And I have known the eyes already, known them allThe eyes that fix you in a formulated phrase, And when I am formulated, sprawling on a pin, When I am pinned and wriggling on the wall, Then how should I begin To spit out all the butt-ends of my days and ways ? And how should I presume ?
24. The "Post-Scriptum" was added to a lecture Derrida delivered on April 26, 1990, to open a colloquium at the University of California at Los Angeles on Nazism and the "Fined Solution": Probing the Limits of Representation, The UCLA lecture (and postscript) interrogate Benjamin's essay, Critique of Violence, supra n.3, at 277-300. The text of Derrida's UCLA lecture (without the introduction or the postscript) was already presented in written form, but was not read, at the opening of a colloquium at the Cardozo Law School on Deconstruction and the Possibility of Justice, which took place several months before the UCLA colloquium. When all was said and done, the editors of the Cardozo Law Review published the whole thing together under one title, Force of Law: "The Mystical Foundation of Authority", consisting of: "Part One" (the address given at the Cardozo colloquium), "Part Two" (the Benjamin paper, unread at Cardozo, but which Derrida later read at UCLA), and the "Introduction" and "Post-Scriptum" (added to the UCLA lecture). Supra n.l.
25. More will be said about Benjamin's Critique of Law later. For now, the following characterization of his "destruction" will suffice: it is the "obligatory" destruction of the historical function of all legal violence, and its task poses again the question, of whether there is a "pure immediate violence [=divine violence] that might be able to call a halt to mythical [=legal] violence". Supra n,3, at 296-97; see supra n.l, at 981,
26. Here it seems appropriate to appropriate a fragment from Heidegger (Being and Time, trld. J. Macquarrie and E. Robinson (San Francisco: Harper & Row, 1962), 44): If the question of Being is to have its own history made transparent, then this hardened tradition must be loosened up, and the concealments which it has brought about must be dissolved. We understand this task as one in which by taking the question of Being as our clue, we are to destroy the traditional content of ancient ontology until we 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. The destruction [Destruktion] of the history of ontology is essentially bound up with the way the question of Being is formulated, and it is possible only within such a formulation.
27. Supra n.l, at 1045.
28. In the course of a passage concerning the inevitable ethiiocentrism of any social science that is organized by the concepts of the European scientific tradition, we see these words (J. Derrida, Writing and Difference, trld. A. Bass (Chicago: University of Chicago Press, 1978), 289):But if no one can escape this necessity, and if no one is therefore responsible for giving in to it, however little he may do so, this does not mean that all the ways of giving in to it are of equal pertinence. The quality and fecundity of a discourse are perhaps measured by the critical rigor with which this relation to the history of metaphysics and to inherited concepts is thought. Here it is a question both of a critical relation to the language of the social sciences and a critical responsibility of the discourse itself. It is a question of explicitly and systematically posing the problem of the status of a discourse which borrows from a heritage the resources necessary for the de-construction ofthat heritage itself.
29. Supra n.23, at 11.31 J. Derrida, Edmund Husserl's Origin of Geometry: An Introduction, trld. J. Leavey (Lincoln: University of Nebraska Press, 1989), 153.
30. Ibid., at 152.
31. Ibid.
32. Ibid., at 153.
33. Supra n.l, at 1045.
34. Ibid.,at941,
35. Supra n.23, at 11, 12.
36. Here I incur the great risk of quoting Wittgenstein, and, moreover, of quoting him out of context: "People who are constantly asking 'why' are like tourists who stand in front of a building reading Baedeker and are so busy reading the history of its construction, etc., that they are prevented from seeing the building." L. Wittgenstein, Culture and Value, ed. G.H. von Wright and N. Nyman, trid. P. Winch (Chicago: University of Chicago Press, 1980), 40e.
37. The yellow fog that rubs its back upon the window-panes, The yellow smoke that rubs its muzzle on the window-panes Licked its tongue into the corners of the evening, Lingered upon the pools that stand in drains, Let fall upon its back the soot that falls from chimneys, Slipped by the terrace, made a sudden leap, And seeing that it was a soft October night, Curled once about the house, and fell asleep. Supra n.23, at 11-12.
38. Compare supra n.l, at 943 (asserting that "silence is not exterior to language").41 New York Times, Aug. 24th 1995, at A6. The Argentine Supreme Court later reversed this decision and ordered that Priebke be extradited to Italy. He was extradited on November 20th 1995, and his trial for war crimes opened in an Italian courtroom on December 8th 1995. See New York Times, November 15th 1995, at A3, and December 8th 1995, at A4.42 The italicized words are taken verbatim from Derrida, see supra n.l, at 975 n., who says in the same place that he relies (but conditionally, always conditionally) on the "constant logic" of Benjamin's discourse in Critique of Violence in order to place the language of signs in opposition to "a language of names, a language or a poetics of appellation". One hears in this "language of names" the echo of a certain Heideggerian language, a language which authentically summons, or frees, entities into the world as entities -into their being what they are as entities. M. Heidegger, "The Way to Language", in On the Way to Language, supra n.14, at 111-36. Derrida clearly shows the difficulties with, as well as his fascination for, this Heideggerian language of names in Of Spirit, See supra n.ll, ch. VI, at 47-57. As for the difficulties: the unclarified position of the animal, who for Heidegger is "poor in world" (weltarm), but still not "without world" (weltlos ) in the manner of a stone this is the aporia, the Derridaian non-road, which fails to lead to the "as" structure of a Heideggerian language of names. Supra null, at 48.
39. Compare supra n.l, at 969 (Austin's distinction between "eonstative" and "performative utterances are inadequate to describe the moment of the decision, as such, in law). See also J. Derrida, "Signature Event Context", in A Derrida Reader: Between the Blinds, ed. P. Kamuf (New York: Columbia University Press, 1991), 82,106-09.
40. See supra n.l, at 942-43.
41. Compare ibid., at 931, where "deconstructive interrogation" is characterized as being "neither foundationalist nor anti-foundationalist".
42. Oh, do not ask "What is it?" Let us go and make our visit. Wittgenstein nowhere defines "language-game" (Sprachspiel), but instead elucidates it by means of a virtually endless series of examples. The process by which these examples are sedimented into "language-game" is akin to the process by which language is learned. The closest he gets to what might be called a definition of the term is the first time he mentions it in the Investigations, after describing what he calls the "primitive language" of the builders: "I shall also call the whole, consisting of language and the actions into which it is woven, the 'language-game'." Philosophical Investigations, supra n.13, §7, at5e,
43. Yes, "concepts" -from a certain point of view,
44. The 1929 quotation in the box is from Wittgenstein, supra n.18, at 68-69. The 1950 quotations are from Wittgenstein, supra n.38, at 84e. The image of an old man's physical shrinkage is from The Love Song of J, Alfred Prufrock, supra n.23, at 15: "I grow old.,. I grow old.,. /I shall wear the bottoms of my trousers rolled".49 The questions are questions which Prufrock asks. Supra n.23, at 15-16. The "certain predicating act" whose text is quoted in the box comes from this passage in Heidegger's An Introduction to Metaphysics:The works that are being peddled about nowadays as the philosophy of National Socialism but have nothing to do with the inner truth and greatness of this movement (namely the encounter between global technology and modern man) -have all been written by men fishing in the troubled waters of "values" and "totalities".Supra n.19, at 199. Wolin asserts (based on an article written in 1987 by one of Heidegger's assistants) that Heidegger inserted the parenthetical into this quotation in 1953 (while also changing "National Socialism" to "this movement") in the course of preparing the text of his 1935 lectures for their first appearance in print. R. Wolin, The Politics of Being: The Political Thought of Martin Heidegger (New York: Columbia University Press, 1990), 192 n.9. As for the possibility that this bringing-into-view of Heidegger's predication is not crude enough, cf. ibid., at 156-57 (criticizing Derrida's handling of the question of Heidegger's relation to Nazism). A certain Derrida, no doubt, would say that Wolin is being too crude on the subject. Cf. supra n.ll, at 31-46 (deconstructing Heidegger's infamous 1933 Rectorship Address -an address of which Karl Löwith wrote that "the listener was in doubt as to whether he should start reading the pre-Socratics or enlist in the SA"). Karl Löwith, "The Political Implications of Heidegger's Existentialism", in New German Critique, trld. R. Wolin and M. Cox (1988), 45, 125.And would it be altogether too crude to draw a connection here between Derrida's characterization of the axiomatics that govern today's dominant juridical discourse as "so theoretically weak and crude that I need not emphasize it here" and Heidegger's attempt, in Being and Time, to distance himself from the "ordinary" (Vulgär) conception of conscience? Compare supra n.l, at 965 with supra n.27, at 335. On the differences between Heidegger and Wittgenstein on this point, see S. Cavell, Philosophical Passages: Wittgenstein, Emerson, Austin, Derrida (Oxford: Blackwell, 1995), 156.50 "Natural law attempts, by the justness of the ends, to 'justify' the means, positive law to 'guarantee' the justness of the ends through justification of the means." Supra n.3, at 278.
45. Ibid., at 279.
46. Ibid., at 286.53 Ibid, at 287.
47. Ibid, at 295,
48. Ibid., at 294-95, On page 296 Benjamin asserts that mythical violence is "fundamentally identical with all legal violence".56 Leto punished Niobe for the arrogance of disparaging her and her two children, Apollo and Artemis. Leto sent the god and goddess to slay Niobe's children, but they left Niobe herself physically untouched -and thus able to experience a full measure of grief and remorse, R. Graves, The Greek Myths (Baltimore: Penguin Books, 1955), 1.258-59. Remarks Benjamin: "True, it might appear that the action of Apollo and Artemis is only a punishment. But their violence establishes a law far more than it punishes for the infringement of one already existing." Supra n.3, at 294.
49. God destroyed Korah, Dathan, and Abriham, and their families, for having challenged Moses' leadership over the people of Israel -He did this by causing the earth to split open and swallow them whole. Then God consumed with fire the 250 other men who had followed Korah. Numbers 16:31-35. Remarks Benjamin about the non-mythical (non-legal) nature of God's violence in this story: "It strikes privileged Levites, strikes them without warning, without threat, and does not stop short of annihilation. But in annihilating it also expiates, and a deep connection between the lack of bloodshed and the expiatory character of this violence is unmistakable.,. The dissolution of legal violence.,. purifies the guilty, not of guilt, however, but of law." Supra n.3, at 297.
50. Supra n.3, at 297.
51. Derrida's version of the loop, what he calls a "performative tautology or a priori synthesis, which structures any foundation of law", is as follows: "[O]ne performatively produces the conventions that guarantee the validity of the performative, thanks to which one gives oneself the means to decide between legal and illegal violence". Supra n.l, at 987.60 Supra n.3, at 297.
52. Supra n.J., at 1045.
53. Supra n.3, at 300.
54. Aid, at300.
55. Ibid., at 291-92 (citing Marx and Sorel in the context of the distinction between the "political strike", which is called "lawmaking", and the "proletarian general strike", which is called "anarchistic"). For a general discussion of Benjamin's relationship with other members of the Frankfurt School, see A. Arato, "Introduction", in A. Arato and B. Gebhardt, eds., The Essential Frankfurt School Reader (New York: Continuum, 1992), 3-25. Peter Demetz notes Benjamin's lifelong attraction to anarchist theory in supra n.3, at xii-xiii.65 Supra n.3, at 300.
56. "But all mythical, lawmaking violence, which we may call executive, is pernicious. Pernicious, too, is the law-preserving, administrative violence that serves it. Divine violence, which is the sign and seal, but never the means of sacred execution, may be called sovereign violence." Ibid.,
57. Ibid., at 296.
58. Supra n.l, at 1045.
59. Compare supra n.38, at 34e (Wittgenstein: "Nothing is so difficult as not deceiving oneself).70 Philosophical Investigations, supra n,13, §352, at 112e.
60. Ibid., §352, at 112e.72 Supra n. 1, at 949,
61. Ibid., at 935.
62. Ibid., at 961.75 Ibid., at 961.
63. Ibid., at 961. Derrida borrowed the words "fresh judgment" from Stanley Fish's article, "Force", in S. Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham: Duke University Press, 1989), 503-24.
64. Supra n.l, at 967.
65. Ibid., at 967.
66. Ibid., at 962-63.80 Ibid., at 964-65.
67. Ibid., at 959. The other "style" he describes is "more historical or more anamnesic, [and] seems to proceed through readings of texts, meticulous interpretations and geneologies". Ibid. Undoubtedly he would put Part Two of Force of Law, which gives his reading of Benjamin's Critique of Law, into this second category.82 Ibid., at 945.
68. Ibid., at 957.84 Ibid., at 935.
69. Ibid., at 962-63 (brackets added to quotation).
70. Ibid., at 945 (brackets added to quotation).
71. Ibid., at 953.88 Compare ibid., at 935,
72. And would it have been worth it, after all, After the cups, the marmalade, the tea, Among the porcelain, among some talk of you and me, Would it have been worth while, To have bitten off the matter with a smile, To have squeezed the universe into a ball To roll it toward some overwhelming question, To say: 'I am Lazarus, come from the dead, Come back to tell you all, I shall tell you all'If one, settling a pillow by her head,Should say: 'That is not what I meant at all.That is not it, at all.' Supra n.23, at 14.90 Supra n. 1, at 1045.91 Supra n.23, at 16.