Deconstructive Practice and Legal Theory– Part I

Deconstructive Practice and Legal Theory

J. M. Balkin

The stone that the builders rejected

has become the chief cornerstone. –Psalms 118:22

The purpose of this Article is to introduce legal readers to the ideas of the French philosopher Jacques Derrida, and to his philosophical practices regarding the interpretation of texts, sometimes known as deconstruction.⁽¹⁾ The term “deconstruction” is much used in legal writings these days⁽²⁾ and in this Article I propose to explain its philosophical underpinnings. Many persons who use the word “deconstruction” regard it as no more than another expression for “trashing” that is, showing why legal

doctrines are self-contradictory, ideologically biased, or indeterminate.⁽³⁾ By the term “deconstruction,” however, I do not have in mind merely stinging criticism, but specific techniques and philosophical ideas that Derrida and his followers have applied to various texts. These techniques often do involve teasing out the hidden antinomies in our language and thought, and that is primarily how I came to be interested in them.⁽⁴⁾ However, I hope to demonstrate that “deconstruction,” as I use the term, is not simply a fancy way of sticking out your tongue, but a practice that raises important philosophical issues for legal thinkers.

Lawyers should be interested in deconstructive techniques for at least three reasons. First, deconstruction provides a method for critiquing existing legal doctrines; in particular, a deconstructive reading can show how arguments offered to support a particular rule undermine themselves, and instead, support an opposite rule. Second, deconstructive techniques can show how doctrinal arguments are informed by and disguise ideological thinking. This can be of value not only to the lawyer who seeks to reform existing institutions, but also to the legal philosopher and the legal historian. Third, deconstructive techniques offer both a new kind of interpretive strategy and a critique of conventional interpretations of legal texts.

Although Derrida is a philosopher, his work has been applied mainly to problems of literary criticism; as a result much of the literature on deconstruction is written by literary critics and scholars.⁽⁵⁾ Adapting the work of Derrida and other literary critics to the problems of legal and political thought is not, however, as difficult as might first appear. Derrida is above all interested in the connection (and misconnection) between what we want to say and the signs we use to express our meaning. In short, he is interested in the interpretation of texts, and that is hardly strange territory for lawyers, who spend most of their time trying to understand what other lawyers have said in legal texts. On the other hand, explaining deconstructive practice is no small undertaking. Like many French intellectuals of his day, Derrida was schooled in the continental tradition of philosophy, whose major influences are Hegel, Husserl, and Heidegger. None of these philosophers is known for clarity of exposition, and Derrida often does little better than his intellectual predecessors.⁽⁶⁾ For this reason, I will attempt to translate his ideas into a form that can be more easily understood by those familiar with the Anglo-American schools of philosophy.

The use of the term “translation” is quite deliberate. It is now commonplace to suggest that a translation can never fully capture the sense of the original. However, this point is especially significant in discussing Derrida’s work. Derrida has chosen a self-consciously obscure and selfreferential style, overflowing with concealed allusions and counterallusions. As I will discuss more fully later, his style may reflect his critique of Western thought’s emphasis on unambiguous and foundational concepts.⁽⁷⁾ I am thus put in an especially precarious position because my goal is to represent clearly and simply the ideas of a philosopher who eschews clarity and simplicity in his own work. My explanation must involve a kind of alteration–I must simplify, interpret, and reinterpret Derrida as much as I explain him.⁽⁸⁾

I also engage in translation in the sense that Derrida does not write about legal, but rather about philosophical and literary, texts. In explaining Derrida’s practices to a legal audience, I will focus on those areas of his work that have the most relevance to legal writing and thought. This too, requires selection, editorial judgment, and reinterpretation. What interests me most about Derrida’s work is the possibility that deconstruction can shed light on theories of ideological thinking: how people form and use ideologies, consciously or unconsciously, in legal discourse. Derrida’s work is not primarily about epistemology or the sociology of knowledge, but his work has relevance to these disciplines. For that reason, I emphasize some points in Derrida’s writings that others (including Derrida) might not choose to emphasize.

A final obstacle to explaining deconstruction comes from the nature of Derrida’s project. Because Derrida and his followers insist that deconstruction is not a philosophical position but rather a practice,⁽⁹⁾ it is neither possible nor desirable to state a deconstructionist creed. Thus, my goal in this Article is to offer ways of bringing the concerns and methods of deconstructionists to the study of legal issues. Instead of describing what a deconstructionist believes, I will explain what a deconstructionist does and will attempt to show how one does “it” to legal texts. Not surprisingly, underlying deconstructive activities are philosophical presuppositions about language, thought, and the world. Such presuppositions are implicated in

Derrida’s work, even if he himself would not admit to them as a statement of a “position.” I will try to make clear these hidden assumptions as the need arises.⁽¹⁰⁾

The two deconstructive practices that this Article will address are the inversion of hierarchies and the liberation of the text from the author. I believe these issues have the most relevance to what legal thinkers do when they analyze legal texts. They also have the most relevance to the study of ideology and the social and political theories underlying our legal system.

I. THE INVERSION OF HIERARCHIES

A. The Metaphysics of Presence

Described in its simplest form, the deconstructionist project involves the identification of hierarchical opposition, followed by a temporary reversal of the hierarchy. Thus, to use Derrida’s favorite example, if the history of Western civilization has been marked by a bias in favor of speech over writing we should investigate what it would be like if writing were more important than speech. We should attempt to see speech as a kind of writing, as ultimately parasitic upon writing, as a special case of writing, rather than the other way around. In so doing, we reverse the privileged position of speech over writing, and temporarily substitute a new priority. This new priority is not meant to be permanent, for it may in turn be reversed using identical techniques. The point is not to establish a new conceptual bedrock, but rather to investigate what happens when the given, “common sense” arrangement is reversed. Derrida believes that we derive new insights when the privileging in a text is turned on its head.

For Derrida, hierarchies of thought are everywhere. They can be found in the following assertions: A is the rule and B is the exception; A is the general case and B is the special case; A is simple and B is complex; A is normal and B is abnormal; A is self-supporting and B is parasitic upon it; A is present and B is absent; A is immediately perceived and B is inferred; A is central and B is peripheral; A is true and B is false; A is natural and B is artificial. Indeed, my labelling of these ideas as A and B involves a hierarchical move because the letter A precedes B in the alphabet.

For Derrida, any hierarchical statements about a set of ideas A and B is an invitation for a deconstructive reversal–to show that the property we ascribe to A is true of B and the property we ascribe to B is true of A. Our deconstruction will show that A’s privileged status is an illusion, for A depends upon B as much as B depends upon A. We will discover, then, that B stands in relation to A much like we thought A stood in relation to B. Indeed, it is possible to find in the very reasons that A is privileged over B the reasons that B is privileged over A. Having reversed the hierarchy, we are able to see things about both A and B that we had never noticed before.⁽¹¹⁾

Any hierarchical opposition of ideas, no matter how trivial, can be deconstructed in this way. For Derrida, however, deconstruction is more than a clever intellectual parlor game. It is a means of intellectual discovery, which operates by wrenching us from our accustomed modes of thought. In fact, Derrida was led to this practice of deconstruction by his dissatisfaction with Western philosophical practice from Plato’s time to our own.⁽¹²⁾

Derrida sees his major project as exposing the bias in Western philosophy he calls the “metaphysics of presence.”⁽¹³⁾ Each of the above opposition privileges a kind of “presence” over a corresponding kind of “absence.” To Derrida, Western conceptions of philosophy proceed from the hidden premise that what is most apparent to our consciousness–what is most simple, basic, or immediate–is most real, true, foundational, or important.

For example, the philosophical positions of an empiricist like Hume indicate a bias in favor of immediately perceived sense data.⁽¹⁴⁾ This is a privileging of “presence” in Derrida’s sense of the word. However, what Derrida means by “presence” need not be the presence of sense data to the mind, for a philosopher like Plato would argue that it is a Form or Essence which the mind grasps most immediately⁽¹⁵⁾ and which is therefore most “present.” Rather, Derrida sees the theories of Western philosophers as expressing, at various times, a series of different metaphysical valuations: subject over object, normal over abnormal, good over evil, positive over negative, identity over difference, being over non-being, ideal over non-ideal. Western philosophy has used the preferred concept as a ground for theorizing and has explained the other concept in terms of it. In each case, the preferred concept constitutes a belief in “presence,” a selfsufficient, immediately cognizable existence.⁽¹⁶⁾

Three examples may help to demonstrate how Derrida hopes to reverse these oppositional hierarchies. I will begin with perhaps the most fundamental concept in Western thought–the notion of identity. Philosophers have regarded identity as a basic ground for metaphysical thought: Anything that exists is identical to itself. Difference is a derivative concept based upon identity: Two things are different if they are not identical. The deconstructionist wants to show that the notion of identity, which seems so basic, so “present,” actually depends upon the notion of difference. Self-identity depends upon difference because a thing cannot be identical to something unless it can be different from something else. Identity is only comprehensible in terms of difference, just as difference can only be understood in terms of identity. We have just deconstructed the opposition identity/difference by showing the mutual dependence these ideas have upon each other. In doing so, we show that what was thought to be foundational (identity) is itself dependent upon the concept it was privileged over (difference).

It is true that having reversed this hierarchy, we could then show that difference cannot be a foundational term for metaphysics; difference depends upon identity as much as identity depends upon difference. This outcome is not a refutation of our previous deconstructive reading. The conclusion that neither term is foundational, but that both are mutually dependent upon each other, is precisely the conclusion that Derrida wants us to reach.

Next consider the opposition between serious discourse and non-serious discourse.⁽¹⁷⁾ This opposition also involves the metaphysics of presence, although at first glance the connection is not quite as obvious. When I am speaking seriously, I mean what I say to you, so that my true intentions are immediately present in the meaning of what I say. On the other hand, when I am not being serious, for example, when I am joking, Lying, or reciting lines in a play, I do not really intend what I say. There is a divergence between my true thoughts and intentions and what you hear me saying. Now philosophers naturally are more concerned with serious discourse than non-serious, for serious discourse is, obviously, to be taken seriously. A philosopher would use the paradigm of serious communication as the foundation either for a theory of meaning or for a theory of performative speech acts like promising, warning, or marrying. Nonserious discourse, such as jokes, lies, or dramatic readings, is an aberration, an additional feature of discourse that one would explain in terms of serious discourse after one has worked out the basic theory of serious communication.

The opposition between the serious and the non-serious can be deconstructed in the same manner as the opposition between identity and difference. Once again, the goal is to subvert the notion that serious discourse is a self-contained, self-supporting ground upon which we can base a philosophical theory of meaning or promising.

To deconstruct this opposition, we must introduce the notion of iterability. Iterability is a property of signs. If one makes a sign, one can make the sign again at another time, in another place, in another context. In a simple sense, words are like signs. We are able to communicate because we can use words and combinations of words over and over again. If we had to create new signs to express our thoughts every time we attempted to communicate, we would never be able to communicate with anyone. Thus, iterability, or the property of being able to be repeated in many different contexts, is essential to any form of communication. When I say “It is raining outside” or “I promise to pay you thirty dollars for that coat,” the statements I make are iterable. They can be repeated many different times, in many different places, and in many different contexts. I can say them when in fact I believe it is raining, or when I do intend to make a promise. But the feature of iterability means that I can also say them when I am merely joking or reciting lines in a play. Indeed, we are brought to the surprising conclusion that we could not use words to express ourselves seriously unless we could use the same words non-seriously. The same property of words that allows us to express what we mean requires that we also be able to express what we do not mean.

Serious discourse thus depends on the ability to make statements whether or not they conform with our true intentions. That is to say, the serious ultimately depends upon the prior existence of the non-serious. Indeed, we can go further. If we now reconceptualize “non-serious” statements as those statements in which there is no necessary connection between the statement and real intention, we may describe serious statements as merely a special case of iterable non-serious statements in which what we say happens to coincide with what we really intend.⁽¹⁸⁾

The work of the Swiss linguist Ferdinand de Saussure presents a third example of deconstruction. Saussure distinguished between langue, the background system of linguistic rules, and parole, the set of speech acts made by members of a linguistic community.⁽¹⁹⁾

Saussure argued that langue was the more important element in the understanding of language because the system of relations among various signs is what constitutes a language. Specific examples of parole, that is specific speech acts by speakers in a linguistic community, are only possible because of the preexisting langue that speakers unconsciously rely upon to understand each other. Thus, the word “cat” is possible in English because English speakers can distinguish it from “mat,” “cot,” and “cad.” In this sense, languages are systems of differences; when an English speaker uses English words, those words carry with them the system of differences that makes them intelligible to other English speakers. In Derrida’s terminology, English words carry the “traces” of other words from which they are distinguished and in opposition to which they possess intelligibility.⁽²⁰⁾

However, Saussure’s privileging of langue over parole as the basis of language leads to an historical paradox: How did language begin at a time in which there was no established system of differences that constituted a language? As Jonathan Culler explains, “If a cave man is successfully to inaugurate language by making a special grunt signifying ‘food,’ we must suppose that the grunt is already distinguished from other grunts and that the world has already been divided into the categories ‘food’ and ‘non-food.’”⁽²¹⁾

Language must have begun with speech acts, and through history the collection of past speech acts (parole) was consolidated to create a linguistic system (langue). On the other hand, speech acts could not have been understood without some pre-existing structure that made others understand that certain primordial grunts signified “This is a rock,” rather than “I am in pain.” No matter how far back we go in history, each speech act seems to require a pre-existing linguistic and semantic structure in order to be intelligible, but any such structure could not come into being without a history of pre-existing speech acts by past speakers. Neither langue nor parole could be a foundational concept in a theory of language because each is mutually dependent upon the existence of the other.⁽²²⁾

B. Differance and Trace

The three examples of privileging that I have given all have a single feature in common. Once the hierarchy of the more basic term over the less basic term is deconstructed, we see that the more basic term depends upon the less basic. Because we already know that the less basic term depends upon the more basic, we end up asking the proverbial question: “Which came first, the chicken or the egg?” This question neatly summarizes what Derrida is trying to show in deconstructing hierarchical oppositions. He is not attempting to show that we were wrong in thinking that difference is dependent upon identity, that the non-serious is dependent upon the serious, or that parole is dependent upon langue. Rather, he wants to expose what we have forgotten: that identity is also dependent upon difference, the serious is also dependent upon the non-serious, and langue is also dependent upon parole. In other words, neither term of the opposition can be originary and fundamental because both are related to each other in a system of mutual dependencies and differences. Each is continually calling upon the other for its foundation, even as it is constantly differentiating itself from the other.

Derrida has a special term for the chicken-and-egg quality of mutual dependence and difference that the terms of hierarchical oppositions have for each other: differance. Differance is a pun based upon the French word differer, which means both to differ and to defer. Derrida replaces an “e” with “a” in difference to make it differance; the two words sound exactly the same in French.⁽²³⁾

Differance simultaneously indicates that (I) the terms of an oppositional hierarchy are differentiated from each other (which is what determines them); (2) each term in the hierarchy defers the other (in the sense of making the other term wait for the first term), and (3) each term in the hierarchy defers to the other (in the sense of being fundamentally dependent upon the other).

From differance, we can understand the idea of “trace.” Both of the terms in a hierarchical opposition rely for their coherence on the differentiation between them. The relation between identity and difference, serious and non-serious, langue and parole, is one of mutual dependence and difference, or differance. However, Derrida would also say that in each case the first concept bears the traces of the second concept, just as the second concept bears the traces of the first.

The word “trace” is a metaphor for the effect of the opposite concept, which is no longer present but has left its mark on the concept we are now considering.⁽²⁴⁾ The trace is what makes deconstruction possible; by identifying the traces of the concepts in each other, we identify their mutual conceptual dependence.⁽²⁵⁾

One might ask whether the ideas of differance and trace between two opposed concepts could form a new ground for explaining both. However, differance and trace are not stable conceptions; they simply represent the play of differences and dependencies between two mutually opposed concepts. Neither differance nor trace could serve as a foundational concept.”⁽²⁶⁾

Having seen one originary concept after another fall under the deconstructionist sword, the reader might be tempted to ask whether Derrida means to deny that there is any self-sufficient, originary foundation for a system of thought. This is precisely the point of the deconstructionist critique of Western philosophy. Proposed foundational terms all depend ultimately upon the subordinate concepts we would like to depend upon those foundational terms. Derrida is denying the validity of the Cartesian project of discovering an unquestionable, self-sufficient ground for philosophy.⁽²⁷⁾

The notions of differance and trace suggest a revolutionary theory of how people grasp abstract ideas. Our commonsense view is that one holds an idea in one’s mind, and that idea is immediately present as one conceives it. Thus, when I think about the idea of identity, I am thinking about it, and not about another idea (difference). When I think about speech, I am thinking about speech and not about writing. But we can read Derrida’s work as challenging this commonsense conception. When we hold an idea in our minds, we hold both the idea and its opposite; we think not of speech but of “speech as opposed to writing,” or speech with the traces of the idea of writing, from which speech differs and upon which it depends.⁽²⁸⁾ The history of ideas, then, is not the history of individual conceptions, but of favored conceptions held in opposition to disfavored conceptions.⁽²⁹⁾

It might seem at first that deconstructive practice is less important to lawyers than to philosophers. Derrida’s critique of foundational thinking might be of great concern to philosophers searching for ultimate truth. Philosophy usually involves a search for ultimate groundings, and so the power of Derrida’s critique is troubling. On the other hand, we do not expect that all or even most legal doctrines can be proven to have a basis in objective moral truth. Law is a much more pragmatic enterprise than philosophy. However, Derrida’s critique is not simply directed at metaphysics. Derrida’s point is that the privileging of presence may be found in everyday thought as much as in abstract philosophy. Any system of thought that proceeds by marking out the fundamental, the essential, the normal, or the most important–in short, virtually any rational system–can be analyzed from the standpoint of deconstructive practice.

Our understanding of legal ideas may indeed involve, as Derrida says of speech and writing, the simultaneous privileging of ideas over their opposites. Legal doctrines are based upon a group of foundational concepts and principles. Thus, in tort law, one learns the basic concepts of fault, intent, or causation, and more recently, the notions of cost-benefit analysis and economic efficiency. Such concepts are building blocks for further development. Using Derrida’s methods, we discover that each legal concept is actually a privileging, in disguise, of one concept over another. By revealing the opposition, and deconstructing it, we are brought to an entirely different vision of moral and legal obligation. One example of legal doctrines’ reliance on privileging is the Supreme Court’s doctrine of standing. By holding that the Constitution requires a plaintiff to show “actual” injury in order to sue,⁽³⁰⁾ the Court has created a privileging of plaintiffs who have actual injury over plaintiffs whom the Court classifies as purely “ideological.”⁽³¹⁾ One way to deconstruct this opposition would be to show how arguments in favor of the actual injury requirement “undo” themselves. The goal would be to examine the standard arguments for the actual injury requirement: Plaintiffs with actual injury are more reliable, more adversarial, and more likely to present a concrete record for decision. We could then use these arguments against themselves to demonstrate that ideological plaintiffs also possess these desired traits. Conversely, we could show how plaintiffs who possess actual injury, but who lack ideological zeal, are less dependable less adversarial, and less likely to produce a concrete record for decisionmaking than their ideological counterparts.⁽³²⁾

This example suggests that law provides a fertile field of discourse for deconstructive readings. Lawyers are continually involved in establishing principles of regulatory behavior, whether in contract law, constitutional law, or other areas, and this project necessitates the privileging of concepts. Deconstruction can serve another purpose. The law reflects social visions that involve privilegings of particular conceptions of human nature. As we deconstruct legal principles, we deconstruct the ideology or world view that informs them. Although we can use deconstruction to show that doctrines are incomplete, or that the arguments for a given doctrine “undo” themselves, we can also use deconstruction as a tool for ideological and historical analysis.

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Footnotes

I would like to thank my research assistants, Linda Talley, Suzanne Bardgett, and Jan Dodd, for their help in the preparation of this Article, and my colleagues, Joan Mahoney and James Kushner, for their comments on a previous draft.

1. Derrida has developed his ideas in several books and essays dating from 1967, some of which have only recently been translated into English. J DERRIDA, DISSEMINATION (B Johnson trans 1981) [hereinafter DISSEMINATION] J DERRIDA, MARGINS OF PHILOSOPHY (1982) [hereinafter MARGINS OF PHILOSOPHY]; J DERRIDA, OF GRAMMATOLOGY (1976) [hereinafter OF GRAMMATOLOGY]; J DERRIDA, Positions (1981) [hereinafter Positions]; J DERRIDA, SPURS (1979) [hereinafter SPURS]; J DERRIDA, SPEECH AND PHENOMENA (1973) [hereinafter SPEECH AND PHENOMENA]; J DERRIDA, WRITING AND DIFFERENCE (1978) [hereinafter WRITING AND Difference]; Derrida, The Law of Genre, 7 GLYPH 202 (1980); Derrida, Limited Inc abc…, 2 GLYPH 162 (1977) [hereinafter Limited Inc abc]. The best general introduction to Derrida’s thought is J CULLER, ON DECONSTRUCTION (1982). Other good sources are H. STATEN, WITTGENSTEIN AND DERRIDA (1984) (suggesting Anglo-American philosophical approach to deconstruction); Johnson, Translator’s introduction to DISSEMINATION, supra, at vii; Rorty, Philosophy as a Kind of Writing: An Essay on Derrida, 10 NEW Literary HIST. 141 (1978); Spivax, Translator’s Preface to OF GRAMMATOLOCY, supra, at ix (essay requires familiarity with continental philosophers and Freud) None of the these considered the relevance of Derrida’s thought to legal theory.

2. See, e.g, Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276, 1288-99 (1984) (citing Derrida’s notions of “dangerous supplement”); Hegland, Goodby to Deconstruction, 58 S. CAL. L. REV. 1203 (1985); Spann, Deconstructing the Legislative Veto, 68 MINN. L. REV. 473 (1984); Tushnet, Critical Legal Studies and Constitutional Law: An Essay in Deconstruction, 36 STAN. L. REV 623 (1984); Note, Overshooting the Target: A Feminist Deconstruction of Legal Education, 34 AM. U.L. REV. 1141 (1985); Hutchinson, From Cultural Construction to Historical Deconstruction (Book Review), 94 YALE L.J. 209, 229-35 (1984).

3. For example, Spann associates deconstruction with a critique of formalism in legal reasoning, or with the more general project of demonstrating that legal reasoning is indeterminate. Spann, supra note 2, at 536-43. But see Hegland, supra note 2, at 1203-05 (uses term “deconstruction” in same way, but argues that premise of deconstruction is wrong; principles can be determined).

4. I have argued that legal and moral thought in general is antinomal though not irrational Balkin, The Crystalline Structure of Legal Thought, 39 RUTGERS L. REV. M (1987); Balkin, Talking Ideology Seriously: Ronald Dworkin and the CLS Critique, 55 U.M.K.C. L. REV. (forthcoming).

5. Eg, H. BLOOM, P. DE MAN, J. DERRIDA, G HARTMAN & J. MILLER, DECONSTRUCTION AND CRITICISM (1979), J. CULLER, supra note l; B. JOHNSON, THE CRITICAL DIFFERENCE (1980); V LEITCH, DECONSTRUCTIVE CRITICISM (1983); P. DE MAN, ALLEGORIES OF READING: FIGURAL LANGUAGE IN ROUSSEAU, NIETZSCHE, RlLKE AND PROUST (1979); P. DE MAN, BLINDNESS AND INSIGHT (1983).

6. At least one writer believes that struauralist and post-struauralist thinkers, most of whom were French, deliberately adopted an obfuscatory style in reaction to the bourgeois French preference for la clarite a simple, clear, and elegant style in accordance with the “narrower stylistic bounds of orthodox academic discourse” expected of French intellectual. Stearic, Introduction to STRUCTURALlSM AND SINCE 16-17 (J. Stearic ed. 1979). The style of modern French philosophical writers, such as Jacques Lacan, Roland Banhes, Michel Foucault, and Derrida, was designed to challenge that paradigm of “proper” philosophical expression. Id. If this were in faa the goal of these writers, it bears noting that one can always have too much of a good thing.

7. See infra text accompanying notes 12-16.

8. Indeed, a deconstruaionist might argue that the process of repetition alters as it repeats. so that any explanation involves alteration of some son. See infra note 53. This point takes on a special urgency with a writer as elusive as Derrida, whose very work celebrates the gap between that which represents and that which is represented.

9. E.g., J. CULLER, supra note 1, at 95 (deconstruction as philosophical strategy); C. NORRIS, DECONSTRUCTION: THEORY AND PRACTICE 31 (1982) (“Deconstruction is … an activity of reading which remains closely tied to the texts it interrogates, and which can never set up independently as a self-enclosed system of operative concepts.”); C. NORRIS, THE DECONSTRUCTIVE TURN: ESSAYS IN THE RHETORIC OF PHILOSOPHY 6 (1983) (“It has become almost a ritual gesture among writers on deconstruction to insist that what they are doing is in no sense a species of conceptual exegesis or analysis. Deconstruction is first and last a textual activity”)

10. In doing so, my descriptions may well be seen by literary theorists, for example, as untrue to their understanding of deconstruction. However, just as deconstructive theorists take pride in the inability of others to systematize their work, I take comfort in the fact that an “orthodox deconstruction” is a contradiction in terms.

11. The word “hierarchy” probably has political connotations to many legal readers. These connotations are unfortunate, for they may lead to a misunderstanding and oversimplification of Derrida’s critique. Derrida’s work is not concerned with the privileging of certain social groups over others (although it can be so applied), but with the privileging of certain ideas over others. We may, in fact, discover as we deconstruct legal texts that the privileging of ideas (as occurs in an ideology) has a connection to the privileged place that certain social groups enjoy. However, this connection is not a direct one. Our first task to investigate the connections among ideas.

12. See J. CUllER, supra note 1, at 92-94,100; OF GRAMMATOLOCY, supra note 1, at 3,10-18, 46; see also Rorty, supra note 1, at 145.

13. See OF GRAMMATOLOCY, supra note 1, at 49 (metaphysics of presence is irrepressible desire for transcendental signified presence, the thing itself, or truth); see also J. CULLER, supra note 1, at 92 (“Philosophy has been a ‘metaphysics of presence,’ the only metaphysics we know.”).

14. See generally D. HUME, A TREATISE OF HUMAN NATURE (L. Selby-Bigge 2d ed. 1888) (all knowledge derived from sense data).

15. See PLATO, THE COLLECTED DIALOGUES OF PLATO 40, 575 (E. Hamilton & H. Cairns eds. 1961) (theory of Forms in Phaedo and Republic).

16. SEE WRITING AND DIFFERENCE, supra note 1, at 278-79; Limited Inc abc, supra note 1, at 236.

17. The discussion that follows is loosely based on Derrida’s deconstruction of J.L. Austin’s work in MARGINS OF PHILOSOPHY, supra note 1, at 307, 321-29, and in Limited Inc abc, supra note 1, at 162

18. In this last statement, I have used the word “non-serious” in a new sense. Originally, I used it to mean “not serious ” By the end of the deconstruction, however, it has taken on a new meaning, namely, “stated without regard to whether the statement conforms to real intention ” In reversing the serious/non-serious opposition, I have created a broader notion of non-serious speech upon which both the serious and the non-serious (in the former sense of the word) depend. This is a common practice in a deconstructive reversal and involves the creation of a paleonym, a new concept with an old name that recalls the previously subordinated concept See infra text accompanying notes 42-44

19. F. De Saussure, Course in General Linguistics 9, 13-15,17-20, 77(3d ed. 1959).

20. See infra note 25 and accompanying text

21. See J. CULLER, supra note 1, at 96.

22. See J. DERRIDA, Semiology and Grammatology, in POSITIONS, supra note 1, at 15, 17, 28 [hereinafter Semiology and Grammatology]. Culler refers to this as the paradox of structure and event. J. CULLER, supra note 1, at 94-96. The same problem arises for theorists who explain obligations in terms of the existence of “practices.” See Rawls, Two Concepts of Rules, 64 PHIL. REV. 3 (1955). Promissory obligations, for example, are explained by the practice of promising. See H.L.A. HART, THE CONCEPT OF L~w 42-43 (1961). By arguing that acts of promising could not come into being before the creation of a practice of promising, these thinkers face the problem of showing how a practice of promising could have arisen before there were any specific acts of promising.

23. See Margins of Philosophy, supra note 1, at 3; J. Derrida, Positions, in Postitions supra note 1, at 39-40 [hereinafter Positions]; Semiology and grammatology, supra note 22 at 26-28.

24. See OF GRAMMATOLOGY, supra note 1, at 46-47

25. See id. at 62-63. The phoneme /b/ is a sound in English because of its differentiation from the set of other available sounds in that language. The idea of “trace” may be compared to the way in which speakers are able to distinguish /b/ from other phonemes, while simultaneously being able to identify the /b/ spoken by one person with the /b/ spoken by another. In a similar way, the concepts in hierarchical oppositions create the possibility for each other’s existence; they form, shape, or identify each other by their absence. This necessary conceptual support is the “trace” of the absent concept.

26. See Positions, supra note 23, at 39-40. Note that this statement is itself deconstructible. The concept of differance is essential (hence foundational?) to Derrida’s own thought, at least as I present it here.

Two points follow from this deconstruction. First, if we attempted to give concepts like “differance” and “trace” a special status, whether as foundations for deconstruction or as ineffable concepts that escape analysis, we would fall into the very trap that Derrida seeks to avoid. Rorty, supra note 1, at 151-53. Thus, trace cannot be “divinized,” as Rorty says, id. at 153, and neither can differance. These conceptions must simply describe the situation of foundationlessness, provisionality, or reversibility. The second point is that this lack of foundational concepts puts any expositor of Derrida’s thought in an unfortunate situation. These concepts are important to understand Derrida, and one cannot do justice to his work without discussing them. I therefore present them as essential, although Derrida would not approve. This dilemma merely demonstrates the impossibility of giving a fully deconstructionist account of deconstruction See infra note 54.

27. See Rorty, supra note 1, at 159.1 use the term “Cartesian” because in many ways Descartes is the high priest of the metaphysics of presence: Descartes believed that one could ultimately base a philosophical system upon the indubitable truth that one’s existence is immediately present to one’s own consciousness. R. DESCARTES, Meditations on First Philosophy, in THE PHILOSOPHICAL WORKS OF DESCARTES 131 (E. Haldane & G. Ross trans. 1911).

The cogito of Descartes attempted to ground philosophy on a metaphysics of presence. Derrida did not need to deconstruct the assertion because David Hume had already performed the task. Hume argued that one’s sense of identity is dependent upon the continuous flow of thoughts that one experiences. Thus, instead of thought being dependent upon the self’s identity, identity is dependent upon the experience of thought. When Descartes said, “I think, therefore I am,” he believed that he had demonstrated the privileged nature of existence over thought (I must be, in order to be thinking at all). Instead, Hume showed that Descartes’ conclusion made knowledge of identity only an inference from the continuous experience of thought (I know that I exist because there is a continuous stream of thoughts). D. HUME, supra note 14, at 6. A deconstructive reading of Descartes’ cogito, then, demonstrates that identity and thought are mutually dependent upon each other in a relation of differance

28. See Semiology and Grammatology, supra note 22, at 26. What speech is opposed to, of course, depends upon the context.

29. This is an epistemological interpretation of Derrida. Derrida does not purport to offer a theory specifically about epistemology, metaphysics, or any traditional field of philosophy. Indeed, Derrida would probably resist the idea that his theories were “about” anything in particular, although it is my belief that they have many applications in such fields as literary criticism, philosophy, psychology, and law. I offer my interpretation because of the connection I am about to make between privileging and ideological thinking. If we apply Derrida’s work to the way people formulate and use legal concepts, we are making a point about human psychology and the sociology Of knowledge. An epistemological interpretation is consistent with the work of Derrida’s. structuralist predecessors, such as Saussure and Levi-Strauss. These thinkers argue that human consciousness is structured in terms of mutually defined oppositions. see generally T. HAWKES, STRUCTURALISM AND SEMIOTICS 19-58 (1977).

30. see, e.g., Warth v. Seldin, 422 U.S. 490 (1975).

31. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974); Sierra Club v. Morton, 405 U.S. 727 (1972).

32. For example of deconstruction of this doctrine, see Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 HARV L. REV. 1698 (1980); J. Balkin, Deconstructing Article III (Sept. 27, 1986) (unpublished manuscript on file at Yale Law School Library)