Book Review: Derrida and Legal Philosophy
A review of Derrida and Legal Philosophy
This book brings together fifteen essays on Jacques Derrida’s approach to justice, law, and politics. It succeeds in demonstrating that Derrida, who died from pancreatic cancer in October of 2004, was not a political nihilist. In fact, he spent much of the last two decades of his life writing about law and justice, and he was deeply concerned about persons who were disempowered and marginalized. This concern was evidenced in his theoretical writings and in his personal commitment to progressive causes. Derrida is not widely considered a major figure in the philosophy of law, but he has definitely impacted the field in two ways. First, during the 1980s, his “deconstructive” strategy for textual analysis was picked up by scholars associated with the critical legal studies movement. Second, a small but devoted group of scholars was profoundly influenced by his 1989 lecture at Cardozo Law School entitled “Force of Law,” as well as subsequent books on Marxism, forgiveness, friendship, gifts, and international politics. Therefore a compendium of essays on Derrida’s legal philosophy is a laudable project, and this book will be useful for those who are interested in, or already committed to, Derrida’s position.
February 16th, 2009 at 2:12 pm
If there is any problem with Derrida, it is that he engaged in out-of-body thinking, and so his approach to real-world problmes is often convoluted and confusing, because he has to substitute his imagination for what most people get by simple insight. However, when he is talking about text, he is often very perceptive, because test is a head thing, purely conceptual, and does not need the body as a whole.
His out-of-body thinking starts with his source epistemology. He gets the language for his epistemology from Husserl. Phenomenology starts with a “principle of principles” that “primordial presence to intuition is the source of sense and evidence, the a priori of a prioris.”
This means that “the certainty, itself ideal and absolute, that the universal form of all experience (Erlebnis), and therefore of all life, has always been and will always be the present. The present alone is and ever will be. Being is presence or the modification of presence. The relation with the presence of the present as the ultimate form of being and of ideality is the move by which I transgress empirical existence, factuality, contingency, worldliness, etc.” [Speech and Phenomena, 53-54.]
However, the choice of the words “present” and “presence” to indicate the ground of all knowledge has some very unfortunate consequences. That choice sets up a confusion between two completely different meanings of the word “presence.”
One meaning is “phenomenological presence”. This refers to the immediate access to being in the original act of knowledge. It does not refer to time at all. So, phenomenological presence might be better expressed by calling it presence-to-being. That would save it from being confused with the other meaning of “presence”, what we should call “temporal presence”, that is, the occurrence of an event at a particular moment in
time.
Derrida also calls this living presence “the now”. This reinforces the confusion between presence-to-being and occurrence-at-a-particular-moment-in-time. It is also unfortunate that Derrida uses the word “form” in the phrase “the universal form of all experience”. What he wants to refer to is the “universal basis of all experience”, which is not a form. It is an act. But this word-slippage is also quite telling, and one of the many clues in Derrida’s work that he is confusing the order of abstract concepts and the order of actual reality.
This epistemology leads to the cornerstone mistake of claiming that iterability is an a priori condition of knowing, whereas in fact iterability is an a posteriori result of knowing. An original presence-to-being (insight) occurs in time. Consequently it is repeatable. So, iterability is not “inside” phenomenological presence, it is extrinsic to it. This mistake is made all the more easy since both relationships are necessary. Once you get this, then all of Derrida’s objections to realist epistemology collapse, and his core philosophical system collapses into imaginary ashes.
I have discussed these issues at length in my article “Dealing With Derrida”, which you can find on the Radical Academy web site. http://radicalacademy.com/studentrefphilmhd1.htm
Although running down Derrida’s mistakes in his text is difficult, once you get the key point that he was dissociated, the whole pattern of his out-of-body thinking makes sense. Once you discover Derrida’s dissociation, you find it in many thinkers. There is a lot of out-of-body thinking in philosophy and social theory. Perhaps leaving one’s body is an occupational hazard for professional thinkers. Dissociation is the result of trauma, and trauma is easy to come by.
There are many sources of insight into dissociation. I recommend Trauma and the Body (2006) by Pat Ogden et al. as a start.