Transcendental Deconstruction, Transcendent Justice– Part III

Transcendental Deconstruction, Transcendent Justice– Part III

Originally Published in 92 Mich. L. Rev. 1131 (1994).
Copyright 1999 Jack M. Balkin. All Rights Reserved.

V. Deconstruction as a Normative Chasm

I want to conclude this essay by juxtaposing two different claims. I began this essay by noting that the normative import of any particular deconstructive argument depends largely upon what the deconstructor chooses to deconstruct, and the values and commitments that she brings to her act of deconstruction. As we have seen, (112) Derrida tends to pick targets for deconstruction that correspond to the injustices he perceives. He deconstructs inegalitarian conceptions, but not egalitarian ones; he deconstructs the cultural practice of apartheid and Western practices that support it, but not arguments against apartheid; he deconstructs unfair accusations of Paul de Man, but not those assessments which he believes to be fair. At the same time, I have argued for a transcendental version of deconstruction: When we employ deconstruction to discuss questions of justice, we always refer to the discrepancy between human law, culture, and convention, and the human values which they articulate.

When we put these two claims together, we arrive at a curious problem. If deconstruction makes reference to transcendent values, why should the results of deconstructive argument turn on the target of our deconstruction? How is it possible that deconstructive arguments can be wielded for contrary purposes? Why isn’t deconstructive argument always a force for good?

In the three essays I have discussed, Derrida does not deal adequately with the many difficult questions concerning the ethics of deconstructive argument. He is preoccupied with showing that deconstruction is not necessarily nihilistic. (113) Nevertheless, he never offers much of an argument for why deconstructive argument cannot lead to contradictory normative positions or even be used to promote injustice. In Biodegradables, he does little more than scoff at the notion that one can use deconstruction to promote both good and evil political regimes; he demands proof that deconstruction could ever be used for a bad purpose. (114) This burden is easily met, however: As the first part of this essay shows, it takes very little effort to produce numerous examples of deconstructive arguments that point in opposite directions. (115)

In his Cardozo Law School address, Derrida tries a different tack. He seems to suggest that any example of deconstruction that leads to injustice is not really deconstructive, just as no example of law is ever fully just. In his view, both deconstruction and justice are impossible. Thus, deconstruction itself can never be unjust; in fact, Derrida asserts, “Deconstruction is justice.” (116) In these passages, Derrida simply offers a mystical equation between justice and deconstruction; he strings together provocative metaphysical formulas but does not begin to offer a convincing argument for them.

Nevertheless, it is possible to make sense of deconstruction’s proper relationship to justice, and, in the process, to offer a more charitable interpretation of Derrida’s rather obscure discussion. To solve this quandary, let us distinguish between deconstructive arguments made by human beings, which we might call the rhetorical practice of deconstruction, and the relationship of mutual dependence and differentiation that exists between human values and human language, convention, and culture. In this relationship, human conventions articulate human values but never fully capture them. Let us call this relationship of simultaneous inadequacy and dependence the normative chasm between inchoate human values and their cultural articulations. (117)

What is the relationship of the rhetorical practice of deconstructive argument to this normative chasm? When people make deconstructive arguments about justice, they make use of this chasm in two ways. First, their arguments implicitly rely on values which, to some indefinite degree, transcend human conventions. Second, their critiques partially describe the discrepancy between law, convention, and culture and the human values of justice and truth. Yet deconstructive arguments that make use of this normative chasm are not themselves identical to this chasm, nor do they ever articulate it completely. Indeed, because human values are inchoate and indeterminate and human conventions are indefinite in their reach and scope, the relationship between the two is doubly problematic. It may even be misleading to think of this normative gap as a single, homogenous thing that any mind could ever grasp or describe as a totality. Thus, there are two things that human law, language, and convention fail adequately to capture: The first are the human values on the other side of the normative chasm; the second is the chasm itself.

The human practice of deconstructive argument always involves a limited use of the normative gap between value and articulation. It is limited in two senses. First, a deconstructive argument must always begin somewhere, at a certain place or with a certain target. Each deconstructive argument shows the instability of the distinctions with which it starts, and the mutual dependence and differentiation of the conceptual oppositions it targets. Yet these deconstructive arguments themselves must rely on distinctions and conceptual oppositions, otherwise they could not be expressed in language and understood by others. Furthermore, no deconstructive argument destabilizes all of the conceptual structures in language or culture at once; for every distinction it contests, it leaves unexamined thousands more. Thus, every deconstructive argument fails ultimately to offer an adequate account of the normative chasm; instead it examines and articulates only a little part of this phenomenon, using conceptual tools that are already symptoms and effects of this chasm.

Second, each deconstructive argument must come to an end. It generally ends with a conclusion that a particular distinction or set of distinctions is effaced, undecidable, or more complicated than one had first imagined. It ends when the deconstructor believes that she has reached an appropriate degree of enlightenment from the process of deconstructive argument. (118) For example, Derrida ends his essay on de Man by showing that de Man’s situation is more complicated than his critics thought. So deconstruction as practiced by human beings always arrives at a conclusion in two senses of the word - both an end and a result of reasoning. Yet the decision to stop and assess the conclusions of one’s argument, to state them as conclusions - in both senses of that word -leaves unspoken the many further steps that could be taken. These additional steps could lead to a partial or even a complete transformation of the conclusions just arrived at. Thus, from another perspective, the conclusion of a deconstructive argument is a conclusion in neither sense of the word: for it does not end the possible lines of deconstructive argument, nor does it lead to a fixed and determinate result.

We thus obtain the curious result that the discrepancy between value and articulation that makes each human practice of deconstruction possible is itself indescribable through the finite rhetorical practice of deconstruction. One might try to imagine a God’s-eye point of view from which all the mutual differentiations and dependences, all the uncanny reversals and undoings of human conceptual structures, could be understood and appreciated. But such a view is not possible for any human intelligence. Thus, the rhetorical practice of deconstructive argument is always inadequate to express the predicament of human culture that makes this sort of argument possible.

It is possible that, when Derrida speaks of “Deconstruction” in his more mystical pronouncements, he has in mind something like this normative chasm, this essential inadequation between transcendent human values and human culture. If so, then no human practice of deconstructive argument is “Deconstruction,” because no argument ever fully describes the relationship between value and articulation. Indeed, such a complete description would be impossible. It would not follow, however, that “Deconstruction” itself was impossible, only a fully adequate account of it. So Derrida’s equation between Deconstruction and justice is flawed. Justice is “impossible” only in the sense that one never finds a fully and categorically just act in this world. Yet “Deconstruction” is not impossible, even though one never finds a fully deconstructive argument. The relationship of mutual dependence and differentiation that exists between culture and value is not impossible; it is the case. Moreover, it is simply not true, as Derrida asserts, that Deconstruction is justice. This assertion is a confusion of the normative chasm between culture and value with a particular inchoate and indefinite human value. Derrida’s mystical formula simply obscures a valuable insight. (119)


This account of Deconstruction also explains two other puzzling Derridean statements. The first is Derrida’s insistence that Deconstruction is not a method or a technique. (120) The second is his assertion that Deconstruction itself, like justice, is not deconstructible. (121) Derrida’s repeated denial that deconstruction is a method or a practice -and therefore, unlike these denials, not repeatable - has struck many as strange and possibly a clever way of dodging criticism: if deconstruction is not a method, then only a certain elect - presumably Jacques Derrida and his followers - can tell whether a given argument is truly deconstructive or not. They can thus disown all examples that put their practices in a bad light. Whether or not Derrida has sought to shield himself from criticism through obfuscation, there is another, more charitable way of accounting for his statements. Derrida’s insistence on separating deconstruction from “method” is consistent with a view of Deconstruction as a normative chasm that cannot adequately be captured by any human rhetorical practice of deconstructive argument. This chasm is not part of any conventional practice of deconstruction; rather, it is what these conventions imperfectly articulate. The human practices of deconstructive argument are conventional, repeatable, transmissible, and hence deconstructible. In contrast, Deconstruction - which is the case that there is an indescribable inadequacy between human values and their articulations - is not a convention, and hence it is not deconstructible. (122)

Nevertheless, it follows that deconstructive arguments are surely part of a practice or convention of deconstructive rhetoric. This claim has two consequences. First, the practice of deconstructive argument is as deconstructible as any other set of conventional understandings and practices. This resolves the question left unanswered earlier in this essay. We noted that if deconstruction argument were a repeatable rhetorical practice, expressible through repeatable linguistic signs and conventions, it would be subject to “ideological drift”: The insertion of deconstructive arguments into new and different contexts would result in arguments with widely varying political and moral valences. This would mean both (1) that deconstructive arguments could be used for a variety of different political purposes, depending on the context in which they were offered; and (2) that any normative uses of deconstruction would themselves be subject to further deconstructive critique.

These conclusions are fully warranted. Deconstructive argument, like all other forms of rhetoric, is a communal practice existing in various human institutions. It can be - and is - learned and taught, copied and parodied, understood and misunderstood. It can be - and is - the subject of countless Ph.D. theses and books. It is repeatable and transmissible, like all other features of human life existing in and articulated through human language and human social conventions. It is therefore subject to the vagaries of iterability and ideological drift. It is deconstructible. (123) Furthermore, because deconstructive argument is a practice of rhetoric, it is hardly surprising that it can be used for good or for ill. Like all rhetoric, deconstructive argument is a form of persuasive advocacy. As Aristotle pointed out, the advocate always takes large portions of her audience’s beliefs for granted and does not try to contest them. (124) Instead, she focuses on specific questions and makes use of beliefs and attitudes that she and her audience hold in common. (125) Some of these beliefs may be only partially correct; others may even be the result of unthinking acceptance of community norms. Nevertheless, the advocate refrains from attacking them because they actually assist her in making her argument.

In this regard the human practice of deconstructive argument is much the same as other forms of persuasive rhetoric. It begins somewhere and ends somewhere. It takes certain features of culture and convention for granted and uses them to deconstruct others. Thus, people can use deconstructive argument for different purposes because they can begin their critiques with different texts or different features of the same text. Because the normative chasm between value and articulation applies to all aspects of human culture and convention, there will always be some discrepancy or instability to deconstruct in every conceptual structure and in every normative position. Thus, depending upon where one starts and where one ends, one can put into question different distinctions and conceptual oppositions that support or justify different interpretations or different actions.

If deconstructive argument is a form of rhetorical practice, then the ethical status of deconstruction is very much like the question of the relationship of rhetoric to ethics. The latter question has been the focus of a great historical debate. Quintilian, the great Roman theorist of rhetoric, claimed that good oratory is a good person speaking well. (126) This statement might be read to suggest that well-done oratory must also serve a just objective and, conversely, that arguments motivated by an unjust purpose or a bad character will always manifest poor rhetorical style. (127) Although this position has had its adherents throughout history, (128) many people consider it wishful thinking. (129) A more common position on the ethics of rhetoric is that of Plato, who compared rhetoric to cosmetics, flattery, and the baking of pastries. (130) Plato argued that rhetoric misleads people by giving certain positions an artificial appeal, just as a pastry chef gives food an artificial appeal that is undeserved given its lack of nutritional value. (131) Thus, far from always serving just ends, rhetoric was a device inherently designed to falsify and obfuscate.


Aristotle struck a middle position between these two extremes. He emphasized that rhetoric is a useful and important feature of public life. (132) But its publicity means that it can be used for many different purposes. (133) It is surely wrong to employ rhetoric for evil ends; nevertheless, it is worthwhile to be able to argue both sides of a case precisely so that one can better respond to the unjust use of rhetoric when one encounters it. (134) Although one can use rhetoric for good or for ill, the same can be said of many useful things, like strength, health, wealth, and strategic expertise. (135)

Rhetoric’s ability to be employed for both good and wicked purposes should lead us to recognize the responsibility that each of us has for the arguments that he or she makes. Each of us - Derrida and de Man included - may become skillful at persuasion. Yet with this skill comes responsibility. Like all other kinds of rhetoric, we must use the practice of deconstruction responsibly, because the practice itself will not guarantee the purity of our motives or the goodness of our actions.



The encounter between deconstruction and justice has changed both parties; yet, of the two, deconstruction appears to be the more transformed. If deconstructive practice is to be of any use to the question of justice, it must become a transcendental deconstruction. It must exchange the logic of the infinite for that of the indefinite. It must act in the service of human values that go beyond culture, convention, and law. It must recognize the chasm that differentiates human value from articulated conceptions of it, and it must identify Deconstruction with that chasm. Finally, one must understand deconstructive practice as a rhetorical practice that employs Deconstruction but is not identical to it. Because deconstructive practice is a practice, it is repeatable, teachable, and alterable like any other human convention. Because it is rhetorical, it can be used for good or for ill.

There is one more transformation yet to come. Understanding the subject of justice must lead us to reunderstand the subject. Derrida speaks repeatedly of the “infinite demand” of justice. But his metaphor obscures a central point: Justice does not demand anything, for justice is not a person that could demand. Justice is a human value. It is a value lodged in the hearts of human beings. It is people who demand justice, and who demand it of one another.

Derrida’s placement of justice in the role of the grammatical subject - the subject who demands justice - obscures the fact that the real subject of justice is, and always has been, not a concept, not a grammatical subject, but a person. This subject of justice is someone who can experience justice and injustice, who can feel wronged or vindicated, harmed or helped, who can understand that she or someone else has been treated justly or unjustly.

There is something uncannily appropriate in Derrida’s way of expressing himself, replacing the individual subject with a grand abstraction. Deconstruction first came to public attention in the wake of structuralism, an intellectual movement that effaced the human subject and sought to explain it as an effect or byproduct of language and culture. These attempts to dissolve the human subject were in turn part of a larger tendency in French thought toward antihumanism. (136) Derrida broke with structuralism in several respects, but not in this one. He adopted the largely antihumanist assumptions then reigning in French intellectual life, as well as the unfortunate tendency in Continental philosophy to make grammatical subjects out of philosophical predicates.

In fact, there has always been the temptation in Derrida’s work to do without the individual human subject, to speak of Deconstruction, but not of deconstructors; of signs, but not those who signify; of meanings, but not those who mean; of justice, but not of people who value the just. Especially in his early works, one sometimes finds the suggestion that there are simply signs pointing to each other, without the necessary support of any human intelligence. (137)

Nevertheless, this raises a serious difficulty. How can there be signs without subjects to understand them? After all, as Charles Sanders Pierce defined it, a sign is something that stands for something else to somebody in some relation or context. (138) Without the “somebody” to make or understand the sign, signification becomes impossible, and Derrida’s philosophical project falls apart. Thus, although antihumanism and semiotics are often identified with each other, in fact they are mutually incompatible.

One way out of this difficulty is to postulate a Transcendental Subject who does all of the work of meaning and understanding all signs. This is the Hegelian solution; it projects human intelligence onto a single great Mind. The second solution, which Derrida has occasionally toyed with over the years, is semiotic materialism. (139) It argues that signs are material traces or are formed from the juxtapositions of material elements. Thus, a sign does not need to be understood by anyone in order to exist as a sign; its semiotic character is ensured by its relationship to other signs without the mediation of a consciousness. Moreover, instead of explaining signs in terms of consciousness, as Pierce did, we explain consciousness in terms of signs. So the self becomes an “effect” or “determination” of a system of differentiated signs. (140)

Neither of these solutions is completely satisfactory. A third and better solution is simply to abandon antihumanism and to reemphasize the importance of individual subjects in the creation of a culture that in turn creates them.

Deconstruction’s confrontation with questions of justice presses this third alternative upon us; confronting the question of justice raises the problem of the subject with renewed urgency. Derrida wants to speak of responsibility and choice; he wants to say that de Man’s critics are unfair and that de Man was a good and generous person. He wants to assert that each of us has an infinite responsibility to the Other. Yet, in order to speak in this way, he needs subjects who are response-able - who can make choices and can be praised or blamed, rewarded or held responsible for them. His arguments about justice become incoherent unless he assumes the existence of individuals who are more than the products of cultural writing, and who can bear a responsibility to others, whether this responsibility is infinite or indefinite.

Thus, the antihumanist vocabulary that has for so long been associated with deconstruction must be abandoned when deconstruction confronts questions of justice in the real world. Once again, it is interesting to look at the treatment of the subject in Derrida’s essays about Paul de Man. In these essays, Derrida jettisons the antihumanist rhetoric of his earlier writings. He speaks of individual actions, individual meanings, and individual responsibilities. (141) Indeed, when Derrida discusses the ethical responsibilities of de Man and his critics in these writings, one could easily be forgiven for mistaking his discourse with familiar liberal notions of autonomy and free will.

The subject who emerges from deconstruction’s encounter with justice may not be in all respects the relatively autonomous subject of traditional political theory; nevertheless, she is a person who can choose and hence bear the responsibility for her choices.(142) Deconstruction’s encounter with justice shows how urgently the concept of a socially constructed subject needs revision. The challenge is to integrate deconstructive insights about language and meaning with the reality of individual subjects and the claims of individual responsibility. The transcendental conception of deconstruction can prove helpful in this endeavor. It argues that human beings articulate their values through culture and conventions. But this articulation is by no means uniformly limiting. To the contrary, the articulation of human values through language and culture simultaneously empowers individuals. Although the cultural articulation of human values fails fully to capture these values, at the same time it opens up possibilities for action and hence for responsibility. It creates degrees of moral and practical freedom. (143) Thus, contrary to antihumanist assumptions, culture and language do not efface human autonomy but are the conditions of its very possibility.

In one sense, it was inevitable that deconstructionists would have to rethink deconstruction’s relationship to the subject the moment they became concerned with questions of justice. The notion of responsibility toward others presupposes people who can be responsible. The idea of an indefinite demand presupposes people to whom this demand can be addressed. The attempt to deconstruct systems of law or legal doctrines presupposes concern about the people unjustly affected by them. Finally, the transcendental conception of deconstruction inevitably leads us back to the individual subject. For this conception locates justice not as a determinate, unchanging Idea in Heaven but as a value or urge within the human soul; hence the importance of paying attention to the person possessing that soul.


112. See supra notes 9, 15, 31-40 and accompanying text.


113. For example, he insists that deconstruction does not “correspond (though certain people have an interest in spreading this confusion) to a


quasi-nihilistic abdication before the ethico-politico-juridical question of justice and before the opposition between just and unjust.” Derrida, supra note 4, at 953. But this failure of correspondence may mean either that

deconstruction - properly employed and understood - need not lead to injustice, or that it cannot do so. Even if people do not use deconstructive arguments to efface the distinction between the just and the unjust, they might still use deconstructive arguments to argue for what is unjust through sophistical means.


114. See, e.g., Derrida, Biodegradables, supra note 8, at 827 (rejecting the claim of a critic that deconstruction can be used for either “fascist” or “liberal” purposes and demanding “some proof, please, some arguments, some examples, at least one example!”).


115. See supra text accompanying notes 40-45; see also Balkin, supra note 3, at 1613-25 (offering competing readings of a U.S. Supreme Court opinion on parental rights).


116. Derrida, supra note 4, at 945.


117. Perhaps unsurprisingly, Plato was among the first philosophers to stress this relationship; it is a principal motivation for his theory of Forms. Cf. Seung, supra note 24, at 209-10. Nevertheless, one does not have to accept the entire ontological baggage of the Forms to acknowledge Plato’s genius in recognizing this fundamental inadequacy between our indeterminate values and their articulations in the world of culture.


118. See Balkin, supra note 1, at 766.


119. In other words, if Derrida were correct that Deconstruction is justice because both are impossible of attainment, then Deconstruction would not only be justice, but also beauty, wisdom, and temperance, as none of these virtues is perfectly realized in this world. A more appropriate view would be Derrida’s assertion that “deconstruction takes place in the interval that separates the undeconstructibility of justice from the deconstructibility of droit (authority, legitimacy, and so on).” Derrida, supra note 4, at 945 (first emphasis added). In other words, Deconstruction is the gap itself, rather than one side or another of this gap.


If by Deconstruction Derrida means this normative gap, Deconstruction would not even be an activity of human beings. Instead Deconstruction would simply be the case that there is a fundamental inadequation. Thus, elsewhere Derrida suggests that “deconstruction takes place, it is an event that does not await the deliberation, consciousness, or organization of a subject, or even of modernity. It deconstructs it-self.” Letter from Jacques Derrida to a Japanese Friend 4, reprinted in Derrida and Differance 1-5 (David Wood & Robert

Bernasconi eds., 1988) hereinafter Letter from Derrida. This “it,” Derrida insists, “is not … an impersonal thing that is opposed to some egological subjectivity.” Id. It is not the result of a subject applying a force to an object. It would perhaps be better to say simply that “Deconstruction happens,” or “There is Deconstruction”.


120. See Letter from Derrida, supra note 119, at 3.


121. Derrida, supra note 4, at 945.


122. A similar argument would apply to justice. Only human culture, law, and convention are deconstructible because, and to the extent that, they depend upon but vary from inchoate human values. A human value like justice would not be deconstructible, although any particular articulation of it would be, just as the normative gap - Deconstruction itself - would not be deconstructible, although any particular articulation of it would be.


123. It might seem strange for me to note the obvious - that people learn to deconstruct in departments of comparative literature, that theses on

deconstruction that repeatedly apply deconstructive arguments are produced in great numbers, that these theses are criticized or applauded as good and bad examples, that people can apply the varieties of deconstructive arguments they find in certain texts to later problems, and that other members of the relevant interpretive community of deconstructive scholars agree that these later

applications are also deconstructive. I emphasize these features - the repeatability and the communal nature of deconstructive practice - precisely because Jacques Derrida has always been so uncomfortable with such statements, leading as they do to the conclusion that there is, after all, a deconstructive method, that can be taught, practiced, and repeatedly applied in new situations. At the same time, Derrida has been quick to point out that certain arguments are misstatements of deconstruction, that others are poorly performed versions of deconstruction, and that particular deconstructive readings are themselves subject to further deconstruction. My theory of Deconstruction as a normative chasm shows how one might consistently hold these positions; nevertheless it commits Derrida - and other deconstructionists - to something like a transcendental account of deconstruction.

124. See Aristotle, The “Art” of Rhetoric, Book I, 1.12 (John H. Freese trans., Loeb Classical Library 1982).


125. See id.

126. 4 Quintilian, Institutio Oratoria, Book XII, 1.1 (H.E. Butler trans., Loeb Classical Library 1961).


127. See id., 1.3-.13.


128. A recent example is Richard Weisberg, Poethics 5-15 (1992), which argues that unjust judicial opinions usually display rhetorical flaws.


129. Quintilian himself recognized that “common opinion is practically unanimous in rejecting this view.” Quintilian, supra note 126, 1.14. His claim is all the more puzzling given that he was involved in the training of lawyers, who are taught to argue both sides of a case with equal ability. However, Quintilian’s position was motivated by a much more plausible one: He believed that the proper use of rhetoric could only be guaranteed by a rigorous moral education that produced a good character; hence he felt that rhetorical and moral education must occur together. See id., 2.1-.2.


130. Plato, Gorgias, in Collected Dialogues, supra note 20, at 229 (W.D. Woodhead trans., 1953).


131. Id. at 245-57.

132. Cf. Aristotle, supra note 124, Book I, 1.10 (offering arguments for the utility of rhetoric).


133. As George Kennedy reminds us, “Aristotle was the first person to recognize clearly that rhetoric as an art of communication was morally neutral, that it could be used either for good or ill.” George A. Kennedy, Introduction to Aristotle On Rhetoric ix (George A. Kennedy trans., Oxford Univ. Press 1991).


134. Aristotle, supra note 124, Book I, 1.12.


135. See id., 1.13.

136. On French antihumanism, see Kate Soper, Humanism and Anti-Humanism (1986).

137. See, e.g., Derrida, supra note 75, at 25 (“The meaning of meaning … is infinite implication, the indefinite referral of signifier to signifier.”).


138. 2 Collected Papers of Charles Sanders Pierce 228 (Charles Hartshorne & Paul Weiss eds., 1960).

139. Cf. Richard Harland, Superstructuralism: The Philosophy of

Structuralism and Post-Structuralism 146-54 (1987); T.K. Seung, Structuralism and Hermeneutics 256-57 (1982).


140. See Jacques Derrida, Speech and Phenomena 147 (David B. Allison trans., Northwestern Univ. Press 1973) (1967-1968). Of course, the words “effect” and “determination” must be put in quotes because the very notions of “cause” and “effect” become inadequate in Derrida’s approach. Id.


141. See, e.g., Derrida, Biodegradables, supra note 8, at 825-28.


142. Drucilla Cornell reaches a similar conclusion in her study of the ethics of deconstruction. See Cornell, supra note 75, at 149; cf. Binder, supra note 75, at 1383 (“There can be no right of self-determination if there is no self.”).


143. These arguments are further elaborated in J.M. Balkin, Cultural Software, 15 Cardozo L. Rev. (forthcoming 1994).