Deconstructive Practice and Legal Theory– Part III
Copyright 1998 Jack M. Balkin. All Rights Reserved.
G. An Example of a Legal Deconstruction
At this point it might be useful to give an example of a deconstructive argument in a legal context. I will use an argument by the noted British legal scholar P.S. Atiyah, who is not generally known as a deconstructionist. There is nothing unusual about the appearance of deconstructive arguments in the texts of non-deconstructionists; recall Hume’s deconstruction of Descartes’ cogito.(75)
In his Promises, Morals, and Law,(76) Atiyah argues against a theory of contract that bases obligation upon individual will or intention. Atiyah notes that the commonsense view of promissory obligation is that promises are binding because of the intent of the party and its objective manifestation by the act of promising. He suggests that the explicit promise, with its deliberate manifestation of intent, is usually viewed as the paradigmatic case of contractual obligation. The law then attempts to explain the binding nature of implied promises in terms of the standard case of promising:
In law and, I think, with most contemporary writers on philosophy, the traditional explanation of an implied promise assumes that the explicit promise is the paradigm case. The implied promise is then treated as a case where no explicit promise is made in so many words, but where, from his words and conduct, it is plain that the party intends to bind himself. Simple examples … concern contracts made by boarding a bus … or ordering a meal in a restaurant…. The lawyer explains these obligations by saying that there are implied promises.(77)
We can already see the hierarchical relationship at work. The paradigmatic case of promissory obligation concerns explicit promises, in which intention is manifested by specific promissory words. Implicit promises are parasitic upon explicit promises: The intention to be bound is manifested (and thus implied) not by the defendant’s words of promise, but by her conduct. Thus, one explains the legal obligation of ordering a meal in a restaurant in terms of previous cases in which people have intended to purchase a meal and have said: “If you serve me food, I will pay you the price listed on the menu,” or words to that effect. But basing the obligatory nature of implied promises upon explicit promises opens the way for a deconstructive reversal of the hierarchy, a reversal that may tell us something new about why promises are binding:
[T]here are difficulties with this traditional explanation. What of the person who does not intend to pay his fare on boarding the bus, or pay for the meal supplied to him in the restaurant? The lawyer brushes aside this difficulty, appealing to what he calls the “objective test” of promise or assent. There is the appearance of a promise and that is enough. But this explanation is not very satisfying. For it dismisses what is–on the traditional view–the very central requirement of a promise. If a person who intends to steal a ride on a bus is liable to pay his fare in exactly the same way as the person who intends to pay his fare, it seems odd to say that it is the intention which creates the liability in both cases.(78)
Atiyah’s argument calls into question whether it is really the intention that creates the obligation. Indeed, even in the case of explicit promises, we may wonder whether intention creates obligation. Imagine the person who walks into the restaurant and says “I promise to pay for the food I consume,” when he has no intention of paying. Will his intention not to be bound shield him from moral culpability or legal liability? Indeed, it is precisely because he lacks the intention that he should be made to pay. Atiyah notes that there is something strange about a theory of contractual liability based upon intent:
[T]o imply a promise suggests that it is because of the promise that the relevant party is bound by an obligation. He is obliged to pay for the meal or pay the bus fare because he has promised. However, it seems quite plausible to suggest that the truth is the other way round. It is because he is bound by an obligation that we generally feel impelled to imply a promise. Naturally, if that is right, the source of the obligation cannot lie in the implied promise itself, but must be sought elsewhere…. [I]t is often, perhaps always, the case that the conduct itself justifies the creation of the obligation…. In the great majority of cases of this nature … the intention to pay will exist, and so will the intention to assume or accept the legal obligation. But we must never forget the defaulter. Occasionally people do order meals in restaurants without any intention of paying. Nobody doubts–least of all the lawyer–that this makes not the slightest difference to the obligation to pay.(79)
We may translate this argument into Derrida’s terminology. The classical theory of contract involves a privileging of explicit promises over implicit promises because in explicit promises the thing that makes the contract binding–the intention of the actor to enter into an agreement and be bound by it–is in some sense more “present.” The speaker’s explicit promise gives evidence of her “real” intentions. In the case of an implied promise, these intentions are hidden, and can only be inferred from the circumstances. A theory of implied promises supplements the will theory, which explains the binding nature of explicit promises. The supplementary theory explains why there is a binding obligation when the promisor’s present intent is not immediately known to the promisee.
Following the logic of the supplement, however, we can argue that a theory of explicit promises can only be supplemented if explicit promises also defer presence (the present intention of the promisor at the moment of promising). Explicit promises are binding because they manifest intent, but the objective manifestation of intent in an explicit promise is only binding because it acts as a signifier for presence (the promisor’s actual will or intent). However, as a sign, the explicit promise must be iterable. Thus, an explicit promise could only bind a promisor if it could bind regardless of the promisor’s intent, that is to say, only if the dishonest promisor also could be bound.
Atiyah has argued that this is how the law treats the dishonest promisor.(80) Promises are binding even if there is no connection between the objective manifestation and the presence of subjective intention. The “presence” of the promisor’s intent at the moment of promising does not create the moral obligation. Rather, we explain the obligation of explicit promises in terms of the reasons implicit promises are binding: They confer a benefit on the promisor that it would be unjust not to repay, or they induce justified reliance on the part of the promisee.
This argument leads to a broader generalization. The privileging of a will theory of contract over a theory based upon effect (unjust enrichment or reliance) involves a relation of differance–of mutual differentiation and dependence. A theory that postulates the will of the promisor as binding must explain the moral obligation involved in cases in which the promisor does not will herself to be bound, but accepts a benefit or creates
detrimental reliance to the promisee. Thus, a will theory ultimately depends upon the theory over which it is privileged.
Of course, the relation between privileging of ideas and construction of ideologies gives Atiyah’s deconstruction additional importance. Atiyah is an historian as well as a legal theorist, and he recognizes the connection between the will theory and the ideology of the nineteenth century.(81) Indeed, he argues that a consequence of the privileging of the will theory of contract was the emphasis on purely executory contracts as the paradigmatic case of moral and legal obligation (in contrast to cases of detrimental reliance or unjust enrichment) and the emphasis on the expectation interest as the paradigm of what the law of contracts was designed to protect (as opposed to the reliance or restitution interest).(82)
Needless to say, the law has moved a considerable distance from the nineteenth century model in both respects. What is important for our purposes is that the deconstruction of a privileging in a limited area of contract doctrine exposes a more pervasive underlying ideology, which gave rise to the privileging. Ironically, it also gives us the chance to investigate the unquestioned ideological assumptions in our current doctrines. Thus, the techniques of deconstruction, as a tool for the analysis of past and present ideological thinking, are especially valuable to the legal philosopher or historian.
Atiyah has used the tools of deconstructive practice to criticize the classical will theory of contract. A deconstruction of an opposition, however, cannot by itself establish a new hierarchy in place of an old one, because the new hierarchy also could be deconstructed. This is a point Atiyah neglects, for he wants to argue that reliance and benefit are the “real” sources of promissory obligation.(83) In so doing, he wants to establish a new hierarchy. However, a theory of contract based wholly upon benefit or reliance must explain why promises are binding immediately after the parties enter into them, before detrimental effects have developed. Atiyah has great difficulty explaining the binding nature of these promises, and concludes that if they are binding (which he doubts they should be), there are only weak grounds for enforcing them.(84) His conclusion is not surprising, because the best explanation for the binding nature of these promises is the intent of the two parties to bind themselves, an explanation Atiyah has already rejected. In essence, Atiyah’s benefit/reliance theory of promissory obligation must admit its own “dangerous supplement” to explain mutually unrelied upon executory promises. This “dangerous supplement,” of course, is a disguised version of the will theory.
Note the irony: In the classical theory, the purely executory promise was the paradigm case; the implied promise was the exception, and the classical theory had to be supplemented with a theory explaining the binding nature of implied obligations. However, this supplement was a dangerous one, as Atiyah has shown. One might view explicit promises as merely a special case of implied promises; that is, promises whose binding nature lies in socially imposed norms and not in the assumption of individual will. On the other hand, under Atiyah’s benefit/reliance theory, the acceptance of benefits or the creation of reliance becomes the paradigmatic case of promissory obligation and the purely executory unrelied upon promise becomes the exception, which must be explained by the use of a supplementary theory of obligation.
Similarly, even Atiyah’s basic premise, that promises are binding if there is a pre-existing obligation in the form of a benefit received or detrimental reliance incurred, must smuggle in the will theory through the back door:
Suppose, for example, that A and B “agree” on the sale of B’s house to A for £ 20,000. A promises to pay the price, and B promises to convey the house…. The promises do not simply create obligations, on their own as it were. A’s obligation to pay the price will not arise just because he has promised: it will arise if and when he receives a conveyance of the house. B’s obligation to convey does not arise just from his promise: it arises if and when he receives the price…. If [A] gets the house, he surely has an obligation to pay, irrespective of the promise: it is not A’s house, and B has no intention of making a gift …(85)
Atiyah argues that A is obligated because B has conferred a benefit on him (and therefore A would be unjustly enriched if he did not perform). This raises the question of how we know that A would be unjustly enriched. Atiyah responds that B did not intend to make a gift of the house. Thus, Atiyah’s benefit/reliance theory of obligation turns upon the intent of B, and we are back to a version of the will theory.
I have not refuted Atiyah’s skeptical arguments regarding the will theory of contract. On the contrary, Atiyah’s deconstruction of the will theory of contract is quite successful. Atiyah is wrong, however, in thinking that he has shown that a new ground of explanation will succeed where the old one has failed. Rather, he has demonstrated that the will theory and the benefit/reliance theory of promissory obligation exist in a relation of differance, that is, of mutual differentiation and dependence. This conclusion is unsatisfying to someone who seeks an ultimate ground for contractual obligation, but Derrida’s work suggests that this is the best that can be done.
II. THE LIBERATION OF TEXT FROM AUTHOR
A. Readings and Misreadings
Derrida’s conclusion that there is only “writing,” that there are only signs and metaphors for still other signs and metaphors, has interesting consequences for a theory of interpretation. These consequences are important to lawyers, who are greatly concerned with the interpretation of texts.
I want to introduce these ideas with a simple paradigm of textual interpretation. According to this simple paradigm, a text is a representation of an author’s intent. Thus, a novel represents a story (and artistic ideas) that a novelist wishes to express. A philosophical treatise represents ideas that a philosopher wishes to convey. A judicial opinion stands for the principles of decision that are used to decide a case. The goal of interpretation is understanding the meaning of the text, that is, the author’s intent. If we interpret correctly, we grasp the author’s intent; if we interpret incorrectly, we miss the author’s intent.
This simple paradigm of interpretation is not a popular theory of interpretation among literary critics these days.(86) However, the simple paradigm of interpretation Continues to be well-respected among legal thinkers as a preferred method of interpreting legal texts. Indeed, if most lawyers or judges were asked how statutes or judicial decisions should be interpreted, they would probably respond that the author’s intent is the most
important factor.(87) As I shall argue later, the strong hold that the theory of authorial intent has upon legal thinkers probably arises from its association with the principle of the Rule of Law.(88)
I would now like to give a particular example of how the simple paradigm of interpretation operates in a legal setting. Suppose that Brown v. Board of Education”(89) had just been decided. A black janitor files suit in a federal district court in Mississippi, contesting a “coloreds only” seating section in a cafeteria at a municipal office building. The district court must decide whether Brown (and the text of the Fourteenth Amendment that it interprets) outlaws the maintenance of “separate but equal” dining facilities in an establishment operated by a municipal government. According to the simple paradigm of interpretation, if the Court holds one way, it has read Brown correctly, while if it holds another way, it has misinterpreted or misapplied Brown.”(90)
It is possible to distinguish Brown on the ground that it applies only to schools, where impressionable children will be greatly affected by the perception of separate treatment. This is a possible interpretation of Brown, and I mention it because it is important to understand that distinguishing a case is as much an interpretation as following it. On the other hand, following the simple paradigm of interpretation, this reading may misinterpret Brown because the authors of Brown intended that all Separate but equal public facilities for blacks and whites should be considered presumptively unconstitutional.
The simple paradigm of interpretation involves a privileging. There are many possible readings of Brown v. Board of Education, and these readings can take place in a multitude of different factual and legal contexts. However, some of these readings are correct, and others are incorrect. Incorrect readings are mistakes of legal reasoning, which should be eliminated from a legal system to the greatest extent possible. The commonsense understanding of legal reasoning, then, is premised upon a distinction between readings and misreadings of legal materials. Therefore, the goal of good legal interpretation is to separate the correct readings from the incorrect readings.(91)
Now this privileging of readings over misreadings can be deconstructed. Culler’s treatment of the subject, although it does not specifically concern legal texts, is excellent:
When one attempts to formulate the distinction between reading and misreading, one inevitably relies on some notion of identity and difference. Reading and understanding preserve or reproduce a content or meaning, maintain its identity, while misunderstanding and misreading distort it; they produce or introduce a difference. But one can argue that in fact the transformation or modification of meaning that characterizes misunderstanding is also at work in what we call understanding. If a text can be understood, it can in principle be understood repeatedly, by different readers in different circumstances. These acts of reading or understanding are not, of course, identical. They involve modifications and differences, but differences which are deemed not to matter. We can thus say, in a formulation more valid than its converse, that understanding is a special case of misunder- standing, a particular deviation or determination of misunderstanding. It is misunderstanding whose misses do not matter. The interpretive operations at work in a generalized misunderstanding or misreading give rise both to what we call understanding and to what we call misunderstanding.
The claim that all readings are misreadings can also be justified by the most familiar aspects of critical and interpretive practice. Given the complexities of texts, the reversibility of tropes, the expendability of context, and the necessity for a reading to select and organize, every reading can be shown to be partial. Interpreters are able to discover features and implications of a text that previous interpreters neglected or distorted. They can use the text to show that previous readings are in fact misreadings, but their own readings will be found wanting by later interpreters, who may astutely identify the dubious presuppositions or particular forms of blindness to which they testify. The history of readings is a history of misreadings, though under certain circumstances these misreadings can be and may have been accepted as readings.(92)
Lawyers’ readings of cases are partial in two senses of the word. First, they are partial in Culler’s sense, in that they represent only some aspects of the meaning of texts. They are also partial in a second sense, in that they are interpretations that benefit (and thus are partial to) the position they advocate. Certainly, the second kind of partiality is likely to lead to the first. The interpretations of judges are no less partial in either sense of the word. The materials of the law–cases, constitutions, and statutes–take on new meanings as legal contexts change. Throughout history, interpretations are constantly offered, some of which are later labelled misreadings. The history of the law is iteration; the development of law is the development of legal materials, which are subjected to new interpretations as we read them over and over again in different factual, historical, and political contexts.
The deconstruction of the opposition of readings and misreadings is at first troubling to lawyers because our legal system seems to depend upon the ability to distinguish readings from misreadings. If all readings of legal materials are actually misreadings, then law cannot be a rational enterprise and the Rule of Law is impossible to achieve. Before reaching this conclusion, however, we should consider exactly what the deconstruction of the understanding/misunderstanding privileging has accomplished. Once again, Culler’s thoughts on the matter prove instructive:
Attacks on deconstructionists … frequently emphasize that if all reading is misreading, then the notions of meaning, value, and authority promoted by our institutions are threatened. Each reader’s reading would be as valid or legitimate as another, and neither teachers nor texts could preserve their wonted authority. What such inversions do, though, is displace the question, leading one to consider what are the processes of legitimation, validation, or authorization that produce differences among readings and enable one reading to expose another as a misreading. In the same way, identification of the normal as a special case of the deviant helps one to question the institutional forces and practices that institute the normal by marking or excluding the deviant.
In general, inversions of hierarchical oppositions expose to debate the institutional arrangements that rely on the hierarchies and thus open possibilities of change–possibilities which may well come to little but which may also at some point prove critical.”(93)
Put another way, the deconstructive reversal has not demonstrated that all readings of Brown v. Board of Education are equally legitimate, but rather has called into question the ways in which we decide that a given interpretation of Brown is illegitimate. This issue is important for two reasons. First, our justifications of what are “proper” interpretations of a text are not always consistent.(94) Second, our method of privileging interpretations as appropriate or inappropriate is often tantamount to deciding a legal issue. It becomes the process by which we formulate legal doctrine, and will serve to foster or foreclose later doctrinal developments.
We may make a comparison here with the use of deconstruction to privilege legal concepts informed by ideological thinking. Just as deconstruction does not prove the bankruptcy of all social visions but rather affirms the many possible characterizations of social life, so too the deconstruction involved here is designed to create possibilities for interpretation rather than to foreclose them. In introducing deconstructive strategies to texts it cannot be stressed too much that freedom and nihilism are not the same thing.
The deconstructive critique of the privileging of readings over misreadings does have a further consequence, which may at first prove unsettling to lawyers: The simple (or intent-based) theory of interpretation of legal texts is necessarily incomplete. However, as I will now show, this consequence is actually necessary for the Rule of Law to operate in the manner we think it should.
B. The Free Play of Text and the Rule of Law
Someone says to me:
“Shew the children a game.” I teach them gaming with dice, and the other says “I didn’t mean that sort of game.” Must the exclusion of the game with dice have come before his mind when he gave me the order?-(95)
One of the most important ideas that Derrida’s work demonstrates is that if (as everyone thinks) we mean more than we say, we also say more than we mean. Our words seem to perform tricks that we had not intended, establish connections that we had not considered, lead to conclusions that were not present to our minds when we spoke or wrote. Students of statutory construction and the law of contracts are no doubt familiar with many examples of this phenomenon. This curious habit of our words to burst the seams of our intentions and to produce their own kind of logic is what Derrida labels the free “play” of text.(96) For Derrida, what we did not intend to say is as interesting as what we did intend. That is why so much of his work makes use of puns, or investigates how what a text says refers to itself or what it does. Much of deconstructive criticism involves the discovery of unintended connections between words. One reason for looking for such connections is that they may condense or crystallize important ideas that are already present in a text. (This is one reason we find slogans and aphorisms so effective in conveying ideas.) But there is a more important reason to investigate the unintended connections between the words in our texts. It is simply a logocentric bias on our part to think that the most important meanings in a text are those the author intended to put there.
In literature, the critic does not think less of her interpretation of Moby Dick because Melville did not see the same connections as he composed his work. A philosopher does not think less of her critique of the Phaedo when she discovers a connection between ideas that Plato did not recognize in his text. Indeed, there is generally great critical importance in discovering that a text says more than the author meant it to say, or that the logic of a text leads to an unexpected difficulty or contradiction. Often. hidden flaws or strengths in a work of literature or philosophical treatise only become apparent over time. Legal texts, like other texts, often present later readers with new meanings, connections, and difficulties that their creators did not contemplate. These meanings are uncovered by the interpretations of successive readers in different historical and cultural contexts.
There are two different reasons that one might be concerned with unintended connections. The first is not Derrida’s purpose, although the second is. One might use unintended meanings in a legal text to criticize the reasoning of the author. In her dissent in City of Akron v. Akron Center for Reproductive Health,(97) Justice O’Connor argued that the viabilitybased doctrine of Roe v. Wade(98) would self-destruct as the point of the fetus’ viability came earlier and earlier during pregnancy while technology assured that the time at which abortions were virtually risk free to the mother came later and later.(99) This consequence of the Roe decision was not envisioned by its author, Justice Blackmun, and Justice O’Connor believed that this unintended consequence was an important criticism of the logic of Justice Blackmun’s opinion.
On the other hand, the discovery of unintended connections and difficulties may not involve any criticism of the author at all. A good example is our current understanding of the equal protection clause. The drafters of the equal protection clause probably did not contemplate that one day its words would strike constitutional scholars and judges as requiring equality between men and women. However, when we read the equal protection clause today, with an expansive notion of equality that would have greatly upset the framers of that amendment, we do not mean to criticize their choice of words. Indeed, we demonstrate how their linguistic commitment to equality has brought us to a deeper political commitment to equality. We celebrate the manner in which the authors’ words have worked themselves pure in spite of the authors’ intentions.
When Derrida hunts for unseen connections in a text, he is usually not attempting to discover errors in the thought of the author. His is not the sort of task that Justice O’Connor undertook in the Akron case. Instead, he is looking for the type of connections that no author can avoid because no author intends them. Derrida seeks to understand the gap between what the author commands by her language and what the language performs–the uncontrollable incongruity in human language and thought. As Barbara Johnson explains, “the deconstructive reading does not point out the flaws or weaknesses or stupidities of an author, but the necessity with which what he does see is systematically related to what he does not see.(100)
There is an important connection between the principle of the “free play” of text and Derrida’s theory of the sign. For Derrida, a sign can only signify to the extent that it can signify repeatedly, in a number of different contexts. The essential property of the sign is its iterability. It follows from Derrida’s theory of the sign that we can use signs if and only if they are separable from our intent–if and only if they “mean” whether or not they mean what we intend. Thus, if I write a heartfelt love letter to my girlfriend, in order to communicate my most deeply felt sentiments through language, it must also be possible for the same words to be written insincerely, in jest, or even through random creation by a computer program. Language can signify only if it can escape the actual present meaning it had to the person who used it.(101)
This surprising conclusion stems from the fact that signs can only be used for communication if they are public. They must be capable of repetition and manipulation by any possible user.(102) But the public nature of communication necessitates that signs signify repeatedly, regardless of the presence or absence of a present meaning that informs them. A piece of graffiti continues to signify as long as it remains on the wall. Thus, to the extent that B can understand A, it is A’s (iterable) signs, and not A’s intention, which permits this understanding. Moreover, the essence of the sign, iterability, carries with it the notion of a repetition of the same in a different context. Language can only operate to the extent that it is repeatable, but language is repeatable only to the extent that what A says means something, albeit not identical to what A meant, to another person B. According to Derrida:
[I]t belongs to the sign to be legible, even if the moment of its production is irremediably lost, and even if I do not know what its alleged author-scriptor meant consciously and intentionally at the moment he wrote it, that is[,] abandoned it to its essential drifting …. [B]y virtue of its essential iterability[,] one can always lift a written syntagma from the interlocking chain in which it is caught or given without making it lose every possibility of functioning, if not every possibility of “communicating,” precisely.(103)
The structural precondition of the sign is its ability to break free from the author, and to mean other than what the author meant. The very act of “meaning” something creates a chasm between the sign and the producer’s intention. This detachability makes iterability, and thus intersubjective meaning, possible. The repetition of the sign in the new context is simultaneously a relation of identity and difference; the repeated sign is syntactically identical, yet semantically different. The result is that the text, as it is repeatedly understood, takes on a life of its own in a relation of differance with the person who “meant” it:
[A]t the very moment when someone would like to say or to write, “On the twentieth … etc.,” the very factor that will permit the mark (be it psychic, oral, graphic) to function beyond this moment–namely the possibility of its being repeated another time–breaches, divides, expropriates the “ideal” plenitude or selfpresence of intention, of meaning (to say) and, a fortiori, of all adequation between meaning and saying. Iterability alters, contaminating parasitically what it identifies and enables to repeat “itself”; it leaves us no choice but to mean (to say) something that is (already, always, also) other than what we mean (to say) … (104)
Derrida’s aphorism, “iterability alters,’(105) is a shorthand way of saying that once the signifier leaves the author’s creation and is let loose upon the world, it takes on a life of its own in the other contexts in which it can be repeated.(106) The liberation of the text from the author at the moment of creation results in the free play of the text.
Moreover, if the meaning of a signifier is context bound, context is boundless–that is, there are always new contexts that will serve to increase the different meanings of a signifier.(107)
This should come as no surprise to a legal thinker: The words in a statute or in a case used as precedent take on new meanings in new factual contexts, and cannot be confined to a limited number of meanings. There are an indefinite number of possible contexts in which a given legal text could be read. For this reason, a text is always threatening to overflow into an indefinite number of different significations.(108)
Most of us assume that the Rule of Law requires that legal materials will be essentially determinate in meaning; that there will be a privileged interpretation of a legal text. If a text had many meanings, and no one “authentic” or privileged meaning, it would be impossible to treat like cases alike according to general and knowable universal principles equally applicable to all citizens. Moreover, if a text had many equally valid interpretations, no interpretation could have an exclusive claim to legitimacy and command the respect of all citizens.
The simple theory of interpretation seems to offer us just such a privileged interpretation. It provides that the privileged interpretation of a legal text is the one consistent with the intention of the author who created it. The simple theory has two advantages. First, it avoids the uncertainty and arbitrariness that would follow if all interpretations were equally valid. It creates the possibility of a single, knowable interpretation of legal materials, which can be applied in a non-arbitrary fashion to all citizens. Second,the simple theory establishes the legitimacy of the interpretation, for it adopts the meaning of the author (judge, framer, or legislator) who had the authority to create the legal text in the first place. Thus, at first glance, the Rule of Law appears to reject the idea of the free play of text and to embrace instead the simple theory of interpretation: The meaning of a legal text is the meaning of its author, which does not change as the text is introduced into new factual situations or contexts.
However, the grounding of the Rule of Law on the privileging of the author’s intent can be deconstructed, and then we see that the relation of the Rule of Law to the author’s intent is not so unambiguous. We discover that the Rule of Law must also depend upon the free play of legal texts, an idea which bears a relationship of differance to the simple theory of interpretation.
Let us consider, as an example, a published opinion of a judge appearing in a case reporter. What is the legal effect of this opinion on subsequent cases? The simple theory of interpretation would suggest that (if the precedent is binding) what the judge/author intended is the principle that controls succeeding cases. However, this will not do. The intent of the author does not control, but rather the interpretation of the author’s intent as derived by subsequent readers of the text controls. It is the text as read, and not the text as written, that becomes the law.
The principle of iterability explains this result. The Rule of Law cannot operate unless legal materials (which in theory, are what bind persons) are iterable. The Rule of Law presupposes that the same corpus of legal materials will be applied to case A as to case B. If a different rule were applied in each case we would not have the Rule of Law.(109) However, the author’s present intent when she creates legal materials is not iterable; it is forever lost at the moment of creation. All that remains is the sign, the existence of which makes intersubjective communication possible. The iterability of the sign of the author’s intent, and not the intent itself, is essential to the operation of the Rule of Law.
In addition, the Rule of Law is based upon the premise that it is not the individual wills of people that control, but laws passed by elected representatives or case law construed and developed by judges. Rule by the arbitrary will of persons would violate the Liberal principle of autonomy;(110) social coercion is not achieved according to arbitrary will, but according to general, equally applicable rules. Once the rules are established by the governing authority, the rules constitute the authority for deciding cases. Thus, the Rule of Law presupposes that texts rule, and not the persons who created them.
Of course, in deciding the proper application of the rule, we look to the purpose of the governing body that created it. However, that body may not have had a single purpose or it may not have explicitly considered the factual situation at issue. Indeed, many of the legislators may not have read the measure thoroughly before voting on it.
The “purpose” used by a legal interpreter or decisionmaker is not the pure present purpose of the creator of the legal text. Instead, it is a constructed purpose: a reading of the text (a statute or decision) and of other texts (legislative history) in a particular context. The “purpose” that we discover and use in the application of a legal rule comes from texts, and not from the author.
Moreover, the Rule of Law requires that a legal text be separated from the purpose present in the mind of the creator of the text. As an example, suppose that airlines lobby for the passage of a law that sets minimum prices for airfares. Assume that legislator A voted for the bill in return for a favor from legislator B. This is not the kind of purpose that a judge can use to construe a statute’s operation in a particular context. Nor could A’s intent to receive a bribe in exchange for a vote be properly considered. The Rule of Law ultimately relies upon a distinction between proper and improper interpretive purposes. This distinction, in turn, can be deconstructed, but my point here is that the decisionmaker who seeks a purpose must reconstitute, reconstruct, or interpret a purpose from still other interpretations or signs. She must separate those purposes which are “appropriate” from those which are inappropriate. This act of discovery is an interpretation and deferral of “presence,” i.e., the purpose “present” to the mind of the creator of the legal text at the time of its creation, and indeed, may even be a rejection of it.
Another example may prove instructive. Assume that the sole purpose of price control regulation is to benefit the airline industry. After intense lobbying, the legislators are convinced that they need to outlaw “cutthroat competition” among the airlines. Suppose that economic conditions then change, and the airlines will lose revenue unless they can increase volume by dropping their prices below the minimum price levels. We would not read the statute to mean that minimum prices no longer control, even though that would achieve the authors’ purpose of benefiting the airline industry. Rather, we must admit that the text of the statute has taken on a life of its own, apart from the original purpose of the legislators who created it.
The statute’s claim to legal authority is derived not from the intent of its framers, but from its present signification. The institutional rules that give binding authority to acts of government recognize the sign (the text) and not the signified (the purpose). The Rule of Law presupposes that the only legitimate solution to the change in economic conditions is to pass a new statute repealing the old price support legislation.(111)
The simple theory of interpretation is a logocentric theory, relying upon the “presence” of the author’s intent at the moment of textual creation. By deconstructing, or “ungrounding” it, we see that the Rule of Law depends upon the free play of text, as much as it depends upon the author’s intent. From this deconstruction emerge two mutually differentiated and dependent visions of interpretative practice:
The one seeks to decipher, dreams of deciphering a truth or an origin which escapes play and the order of the sign, and which lives the necessity of interpretation as an exile. The other, which is no longer turned toward the origin, affirms play and tries to pass beyond [the] man … who . [-] throughout his entire history–has dreamed of full presence, the reassuring foundation, the origin and the end of play . There are more than enough indications today to suggest we might perceive that these two interpretations of interpretation–which are absolutely irreconcilable even if we live them simultaneously and reconcile them in an obscure economy–together share the field which we call, in such a problematic fashion, the social sciences.
For my part although these two interpretations must acknowledge and accentuate their difference and define their irreducibility, I do not believe that today there is any question of choosing–in the first place because here we are in a region (let us say, provisionally, a region of historicity) where the category of choice seems particularly trivial; and in the second, because we must first try to conceive of the common ground, and the differance of this irreducible difference.(112)
The purpose of the deconstruction is not to establish that any interpretation of a text is acceptable, but that the yearning for originary meaning in the simple theory of interpretation is incomplete and cannot serve as a foundation for interpretation. We must, to some degree, acknowledge the free play of the text. However, as Derrida notes above, there can be no question of choosing the free play of legal texts as a new ground for interpretative practice, a fact that critics of original intent theory may too easily forget. The intent theory and a theory of free play must coexist in an uneasy alliance in which neither can be master nor servant. The relation of differance between them prevents either from serving as an originary ground of interpretative practice.
Of course, I have only considered two possible approaches to interpretation: one that looks to the intent of the author, and one that acknowledges the free play of the text. Derrida’s critique, however, extends much further. As soon as the author’s original intent is displaced as the foundation of interpretative practice, the critic finds that she must substitute a new ground for her interpretative theory, and this theory too, must depend upon and define itself in terms of that which it excludes. Thus, the critic who replaces “original intent” by “intersubjective meaning,” “historical development,” or “shared consensus of values,” must reinstitute a new form of presence, which is subject to further deconstruction.(113)
III . CONCLUSION
Deconstruction by its very nature is an analytic tool and not a synthetic one. It can displace a hierarchy momentarily, it can shed light on otherwise hidden dependences of concepts, but it cannot propose new hierarchies of thought or substitute new foundations. These are by definition logocentric projects, which deconstruction defines itself against. Deconstruction is thus revelatory, and what the legal theorist does with the revelation is not dictated by the deconstruction itself, nor could it be.
In theory then, deconstructive readings of legal texts can be a tool of analysis for the right as well as for the left. In practice, left legal scholars will probably make more use of deconstructive techniques for two reasons: first, because of the historical connection between continental philosophy and left political thought, and second, because the left usually has more to gain from showing the ideological character of the status quo than does the right.(114)
Deconstructive readings, at least in the sense used in this Article, do not demonstrate that legal thought is incoherent any more than they demonstrate that all forms of logocentric practice are incoherent. Similarly, deconstructive readings do not demonstrate that legal thought is any more irrational than any other form of logocentric thought. Rather, what deconstruction demonstrates is the differance between what is privileged and what is excluded in legal thought. Deconstruction thus reveals the antinomal character of legal thought, a characterization which is at first disturbing, but in the end is the best description of our actual experience in using legal concepts.
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76. P. ATIYAH, Promises, Morals, AND LAW (1981) [hereinafter PROMISES, Morals, AND LAW.
77. Id. at 173 (footnote omitted).
81. Id. at 4-5, 7, 33. See generally P. Atiyah, THE RISE AND FALL of FREEDOM OF CONTRACT (1479) [hereinafter THE RISE AND FALL Of FREEDOM of CONTRACT] (historical treatment of
nature of contractual and promissory liability).
82. See THE RISE AND FALL of FREEDOM or CONTRACT, supra note 81, at 424-29, 441-43, .56; PROMISES, MORALS AND LAW, supra note 76, at 33.
83. More specifically, he argues that the social group has determined that reliance and benefit are the conditions for primary obligation. PROMISES, MORALS, AND LAW, supra note 76, at 129, 66-67, 1 93-94.
85. Id. at 189-90 (emphasis added).
86. Indeed, the reader-response movement in literary criticism a, championed the role of the reader in constructing the meaning of texts. See generally S. FISH Is THERE A TEXT IN THIS CLASS? (1980); S. MAILLOUX, INTERPRETIVE CONVENTIONS: THE READER IN THE STUDY OF AMERICAN FICTION (1982); THE READER IN THE TEXT (S. Suleiman & I. CROSMAN eds. 1980) READER-RESPONSE CRITICISM (J. Tompkins ed. 1980). Only a few literary critics, such as E.D. Hirsch, still hold to the view that the author’s intent is the primary source of interpretation. See e.g. E.D. HIRSCH, THE AIMS OF INTERPRETATION (1976); E.D. HIRSCH, VALIDITY IN INTERPRETATION (1967). Of course, the argument that the primary source of meaning lies in the readers’s response rather than in the author’s. intention involves a privileging as, much as the reverse claim and therefore is
equally subject to deconstruction. The relation between author and reader is One Of differance.
87. “Although there have been occasional heretics, it is an article of faith among American lawyers that the function of a court when dealing with a statute is to ascertain and effectuate the intent of the legislature.” Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation In the “Modern” Federal Courts, 75 COLUM. L. REV. 1299, 1299 (1975) (footnote omitted); see also R. DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES 36 (1975) (same); J. HURST, DEALING WITH STATUTES 32-40 (1982) (fundamental principle of statutory construction is inquiry into legislative intent); 2A N. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 45.05, al 20-22 (Sands 4th ed. 1984) (“An overwhelming majority of judicial opinions considering statutory issues are written in the context of legislative intent.”). Although Professor Murphy expresses the prevailing view, The number of “heretic~” is greater than his quotation suggest-. See, e.g., Radin, Statutory Interpretation, 43 HARV. L. REV. 863 (1930) (legislative intent fictional and irrelevant concept); H. Hart & A. Sacks, The Legal Process 1410 (tent. ed. 1958) (unpublished manuscript) (legislative purpose created by courts and not identical with intent). In constitutional law, where there is perhaps the greatest controversy y about proper methods of textual interpretation, the simple paradigm remains surprisingly strong. E.g., R. BERGER, GOVERNMENT BY JUDICIARY (1977); Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. I (1971); Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353 (1981). Even more liberal authors often pay lip service to the principle of authorial intent. Ronald Dworkin, who argues that the Framers’ intent is not a psychological fact to be discovered but only something to be invented, still makes an obeisance to the simple paradigm when he proposes that one should look to the Framers’ general abstract concepts of “due process” and “equal protection,” rather than to specific concrete conceptions of these ideas in practice. Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469, 477, 488-91, 497 (1981).
88. See infra text accompanying notes 108-09.
90. This statement is true not only of the simple paradigm. Many other theories of interpretation label readings as proper or improper, although they might reach different results in individual cases.
92. J. CULLER, supra note 1, at 176. The same arguments may be applied to my interpretation of Derrida in this Article. By interpreting Derrida, I present his ideas in a necessarily selective and ordered fashion. My reading of Derrida is partial, and therefore, may be classified as a “misreading” in the more general sense Culler describes. However, to use Culler’s phrase, I would argue that it is a misreading whose misses do not matter much.
94. For example, there are clause of the Constitution we would probably read quite literally, confining our interpretations to the plain meaning of the words. E.g., U.S. CONST. art. II, § 1, cl. 5 (president must be at least 35 years old). Other clauses, like the equal protection clause, are more ambiguous and require a fuller theory of interpretation, which would no doubt be more controversial. In still other cases, we read the Constitution in ways clearly at odds with the ordinary meaning of its language. The Eleventh Amendment, for example, literally bans all suits, in law or equity, against a state by citizens of another state. U.S. CONST. amend. XI. Yet the amendment is most often invoked to bar suits by citizens against their own state, e.g., Edelman v. Jordan, 415 U.S. 651 (1974). Suits in equity against a state are permitted through the fiction of suing a state officer in her official capacity, e.g., Ex Parte Young, 209 U.S. 123 (1908); suits for monetary damages are permitted if the relief sought is prospective rather than retrospective, e.g., Edelman, 415 U.S. at 664, 668. Even suits for retrospective relief in the form of damages are permitted, if the state is held to waive its immunity. Id. at 671-74.
Ironically, the rule for determining waiver is that a state will be deemed to have waived its immunity “only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’” Id. at 673 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)). This interpretative principle is quite at odds with the principles used to interpret the Eleventh Amendment itself.
Our use of different methods of reading constitutional and statutory texts doa not necessarily mean that we are contradicting ourselves. We could defend different hermeneutical principles for interpreting waiver under the Eleventh Amendment and for interpreting the amendment itself on the grounds that the rule for statutory interpretation must be different from those for divining the meaning of the Constitution. A similar explanation could be developed to show why the Eleventh Amendment should be interpreted differently than other clauses of the Constitution. Rather, deconstruction calls these interpretative practices into question and requires us to articulate a political and legal theory to explain the difference. This process also may cause us to reevaluate our hermeneutical practices. Compare Ata- cadero State Hosp. v. Scanlon, 105 S. Ct. 3142 (1985) (defending current Eleventh Amendment doctrines on general grounds of preserving federalism) with Edelman, 415 U.S. at 687-88 (Brennan, J., dissenting) (Eleventh Amendment immunity should be restricted to cases falling within its literal meaning: suits against a state brought by citizens of another state).
95. L WITTGENSTEIN, PHILOSOPHICAL lNVESTIGATION ~ 70 (1953)
96. See, e.g., WRITING AND DIFFERENCE, supra note 1, al 292 (“Play is the disruption of presence”) A more trivial, yet classic, example of unexpected connections between words is the common pun Derrida’s work often relies on puns to emphasize connections among ideas in a text See, e.g., DISSEMINATION, supra note 1, at 65-171,173-285 (“Plato’s Pharmacy” and “The Double Session”)
97. 462 U.S. 416, 458 (1983) (O’Connor, J., dissenting).
99. The Roe framework … is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of
maternal health is moved further forward to actual childbirth. At medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.
462 U.S. at 458.
100. Johnson, supra note 1, at xv.
101. See MARGINS OF PHILOSOPHY, supra note 1, at 317.
106. Under the simple theory of interpretation,we might still insist that the text has a meaning independent from its context:
a clearly definable “core” of meaning that cannot be varied by context. According to this theory, context affects only the “peripheral” meanings of the text while preserving the “core.” Thus, context is only supplementary to the basic,unchanging meaning of the text.
The “core/periphery” distinction can be deconstructed by noting that the “core” depend~ as much on the context as the “periphery” does. Both the core and the periphery are context dependent. The core meaning of the word “cow” provide~ a simple example. If two parties have adopted a code for contracts involving livestock where “cow” means “horse,” the core meaning of “cow” will shift radically. This~ may look like a trick, but it i~ the “normal” context in which we use the word “cow” that gives us its “core” meaning. In Derrida’s terminology, context is a dangerous supplement to the meaning of a text. “Context” indicates both that which accompanies the text (con- as in convocation) and that which is posed against the text, or which the text is read against (con. as in contra). Both readings are important, for the text is both dependent upon and differentiated from its context. Text and context thus exist in a relation of differance There is no text without a context.
108. I use the word “indefinite” and not “infinite.” What is important is not the number of possible new contexts, but their unexpectedness. Theoretically, it always should be possible to derive an infinite number of meanings from a text if we are willing to acknowledge all sorts of bizarre ways of reading the text. However, some of these contexts are probably irrelevant in the further context of our legal institutions. (For example, one might look for meaning in a legal text by searching for hidden anagrams that stated a rule.) Although we can be sure that some contexts will be irrelevant, we cannot predict which contexts will be relevant in the future. The number of such contexts may not be infinite, but it is indefinite. We cannot create an all-inclusive list in advance. To use an earlier example, what makes the equal protection clause uncanny in its moral force is the unexpected nature of classifications we may come to see in time as requiring equal treatment or permitting differential treatment.
109. I pass over the obvious difficulty that the corpus of laws is constantly changing, so that it case B appears later in time than case A, different legal rules may apply to it. This is a problem for the theory of the Rule of Law, not for my deconstruction.
110. The principle of autonomy holds that persons should be free from coercion by the arbitrary will of another. See F. HAYEK, THE CONSTITUTION OF LIBERTY 139-40 (1960). Recognition of legal rights according to the Rule of Law preserves this principle by preventing inconsistent and arbitrary treatment of persons. Id.
111. The same arguments apply to the interpretation or judicial opinions. It the simple theory of interpretation were required by the Rule of Law, we might be tempted to try to solve today’s difficult problems of constitutional law by communicating with the spirit of Chief Justice Marshall, and by asking him what exactly he meant in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). However, I hope that the reader will find something odd about this solution, aside from the idea that judges should be performing seances or raising the dead. Like the Constitution itself, Marbury as text has meaning that live on independently of the meanings of its creator. Therefore, even the author of the text, were he here to communicate with us, would not have a monopoly on the “real” meaning or Marbury. Rather, we understand intuitively that the author has already had his “bite at the apple.” Once he has expressed himself, it is the opinion that binds future judges. This, too, is a necessary consequence of the Rule of Law. Of course, if a Supreme Court Justice writes an opinion, she does, in a sense, have a “second bite at the apple” because she will be able to vote for subsequent applications of the original opinion. But her interpretation of her own writing will not be conclusive; she will have to convince four other Justices. The point is easier to under- tand if one considers a Justice who retires after writing a given opinion. In subsequent cases, it would be inappropriate to ask her what she meant in her opinion and to accept her views as binding.
112. Difference supra no~e 1, at 2912-93.
113. Consider, for example, theorists who advocate using traditional morality as the basis of constitutional interpretation. See, e.g. Lupu, Untangling the Strands of the Fourteenth amendment, 77 MICH. L. REV. 981, 985, 10~41 (1979); Perry, Substantive Due Process
Revisited:Reflections on (and Beyond) Recent Cases, 71 Nw. U.L. REV. 417, 425 (1976);Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 YALE L.J. 221, 284 (1973). Such a proposal involves a privilesing of traditional over non-traditional values, of non-controvenial over controvenial attitudes, and of conventional over non-
conventional morality. Dean Ely deconstructs this privileging by showing that arguments for this interpretative theory undo them- selves:[P]art of the point of the Constitution is to check today’s
majority …. ‘If the Constitution protects only interests which comport with traditional values, the persons most likely to be penalized for their way of life will be these least likely to receive judicial protection.’ ’ J. ELY, DEMOCRACY AND DISTRUST 62 (1980) (quoting Karst, The Supreme Court,1976 Term Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. REV. 70,
136 (1977)). Thus, the argument for enforcing theprivileged concept, traditional values, becomes an argument for enforcing the excluded concept, non-traditional values. Similarly, one can show that the argument for enforcing values agreed upon by a majority of the public deconstruts itself. As Ely notes, “it makes no sense to employ the value judgments of the majority as the vehicle for protecting minorities from the value judgments of the majority.” Id. at 69.
114. On the other hand, an economic libertarian might well use deconstructive techniques to criticize the modern welfare state on the grounds that it rests upon a false privileging of certain aspects of human nature.