Sunday, October 17, 2004

Derrida, Deconstruction, and Legal Theory

Jacques Derrida, a postmodern philosopher whose work is most closely associated with the idea of "deconstruction," died last week.

I've never fully understood his ideas, in part because I haven't taken a great deal of time to actually read what he's written. Most of what I know about him and his thoughts have been distilled through other sources.

In a nutshell, I've understood Derrida's work as one that questions the meaning(s) of "texts." Text, as the term is used in the postmodern context, tends to refer not only to written documents, but also to physical spaces (a building is a "text" in the po-mo universe). To grossly oversimplofy his thinking, a text means more than what it says, and means more than what it means. There are connections in texts that an author does not intend (and perhaps can never intend), because language is dynamic; and the interplay between, say, words ("signifiers") in a document and the things that they siginify are not fixed.

The typical critique of Derrida is that his philosophy is nihilistic: words don't mean anything, and deconstruction is literally a practice of destroying meaning. An online obituary poked fun at deconstruction using this critique, questioning whether there is a "Derrida," and whether he really was "dead." Whatever that means.

Critics, aided by the fact that Derrida himself was often willfully obscure and consciously self-contradictory, accuse Derrida of undermining the Western philosophical tradition, and--the argument often goes--in so doing, has ushered in a parade of horribles (no language, no communication, no ethics, mere anarchy is loosed upon the world).

I think this critique is too facile -- Derrida's critical theory (to put it in those terms) really doesn't say anything about ethics or politics. It hardly says anything about metaphysics. It seems to me entirely epistemological. In other words, we can't really locate an ethical system in Derrida's work. (For what it's worth, Derrida himself was always politically active, usually on the far left.)

I've wondered recently how Derrida's thought influences law and legal theory. Jack Balkin, a Yale Law prof, wrote an article about this in 1998, and argues that the important consequences lie in how we interpret legal texts -- contracts, statutes, the Constitution. To give an example -- if words mean more than they say, and more than they mean, then how does one interpret a contract? Is there such a thing as staying with the "four corners" of the document? If not, how far out can you go? How iterative is the interpretive process?

Accepting this theory of interpretation seems to me to present profound consequences for constitutional interpretation. Looking to the "Framers' intent," for example, would exclude not only all other possible interpretations, but also all other actual meanings within the text. In other words, we would be refusing to take the text on its own terms.

That said, acceptance of such an interpretive method is not bound to happen anytime soon. I don't know if that's a good or bad thing -- and I don't know if the interpretive system Derrida championed would lead, as many of critics assume, to anarchy. Indeed, I wonder if instead we would find ourselves forced into a more deliberative mode of lawmaking, engaging in a kind of perpetual dialogue with legal texts. In theory, this doesn't sound so bad.

6 Comments:

Blogger Liv said...

Intersting thoughts, Chris. I'll enter the conversation more thoroughly after my bonanza of Divinity School midterms ends on Wednesday. However, initial thought: isn't every epistemological claim (any claim that targets the validity of and appropriate hermeneutic for knowledge) *both* an ethical and political claim? My immediate concern is that to argue otherwise would be to borrow the same (arguably fallacious? See Matt's comments below) logic of those who propose that "value-neutrality" is a viable position.

October 17, 2004 at 10:12 PM  
Blogger Chris said...

To answer -- no, I don't think that every epistemological claim is necessarily a political and/or ethical claim. Now, it may be the case that every epistemological claim has consequences for politics and ethics; and it may also be the case that those consequences necessarily and inexorably fall out of epistemological claims. But I don't think that the one equals the other.

An example, to borrow from Kant: I may say, for example, that the world is made up noumena and phenomena. And I may also say that it is impossible to know the noumena themselves (that is, the "thing in itself"), it is only possible to know phenomena (the thing as I experience it). But, there are universal categories of the mind through which we all experience phenomena -- number, causality, etc.

That does not get me to Kant's ethical system, the Categorical Imperative. Nor does it get me to his thoughts about politics. Hegel, for example, accepted the same epistemological tenets of Kant's idealism, but came up with a very different ethical and political system.

The Sceptical worldview is sort of the same. To say that we can't know causality -- as Hume, Bentham, Berkeley said -- does not necessitate a certain kind of ethics and politics: they all came up with different systems.

Now, perhaps it's different with metaphysics -- perhaps, if we say the world *is* a certain thing, then there are necessary ethical and political consequences that must flow from that. I'm sceptical of that proposition, but I nevertheless think it more likely than saying ethical and political consequences necessarily flow from any given epistemology.

October 17, 2004 at 10:20 PM  
Blogger Liv said...

Are you suggesting, then, that epistemology as a "lens of interpretation" (i.e., Derridean epistemology as a hermeneutic for contract law) can effect "profound consequences" (and presumably, have political/ethical import) -- but that when viewed in a vacuum, epistemology does not possess an ethical/political character?

SN: You're right to challenge me on the "claim" language -- I did not mean to suggest that a given epistemology would lead to *specific* ethical/political claims. However, I'm still uncomfortable with the idea that epistemology is completely value-neutral (though I haven't been able to process through why that might be the case).

Again, more after I finish studying. I don't know any of the Old Testament!! Can you post about the Hebrew scriptures instead, so I can multi-task?

October 17, 2004 at 11:19 PM  
Blogger Chris said...

Possibly, though when you frame it that way it forces me to amend my previous comment.

It depends. The questions is really whether one can every frame an epistemological system in a vacuum. It may be, for example, that Derrida has a particular ethical worldview that frames his epistemology (though, by his own theories of interpretation, he can't really control where that epistemology will take him).

Perhaps I prefer to think of such philosophical projects as rigorous, but blind: that is, they are exercises in thought and methodology, and not in justification (i.e., in justifying an ethical worldview). But I'm sure that's not really how it works.

Nevertheless, even if a given individual creates an epistemological system based on a certain ethical worldview, I wonder if the epistemological system must necessarily lead one to that same worldview? Or does taking the philosophy on its own terms mean that we simply can't examine it in a vacuum?

October 17, 2004 at 11:34 PM  
Blogger Chris said...

I will say, though . . .

The relationship between epistemology and/or and ethics and/or politics is different from the relationship between ethics and politics. I think I actually can be value-neutral in creating an epistemology or ethics, and that the influence it has on an ethical or political system might be quite unexpected.

In contrast, I think that ethics and politics are inextricably intertwined. I don't think you can have a politics that is divorced from an underlying ethics -- and I think it's very difficult (though perhaps not impossible) to form an ethical system that does not take into account a political system.

Maybe I'm thinking too much in terms of Aristotelian priorities. But I think Matt's point -- that you can't claim that your politics are value-neutral because the nature of politics is such that we make value judgments all the time -- does not necessarily apply to the cretion of an epistemology or metaphysics. Perhaps, in this way, I would liken the creation of an epistemology or metaphysics to something not unlike a scientific undertaking (though, if you get going on that subject, I might admit that scientific projects are never value-neutral . . . my point here, though, is that's the creation of an epistemological or metaphysical system tends to be descriptive, rather than normative, and I think that tends not to be the case with the creation of ethical and political systems).

October 17, 2004 at 11:44 PM  
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