QUESTION
In The Mystical Foundations of Authority, Jacques Derrida argues that the ‘ultimate foundation of law is by definition unfounded’. He distinguishes between law, which he says is deconstructible, and justice, which exists outside or beyond law, and which is not deconstructible. By reference to the unit's study materials, evaluate Derrida’s distinction between law and justice. Why, in Derrida’s view, is justice incapable of deconstruction? Do you agree? Why, or why not?
SOLUTION
Law is a colossal system of rules, strictures, guidelines, and regulations to monitor the demeanour of those bound by it and acts as a base for making its subjects comprehend right from wrong. Law acts as a line that declares some behaviours to be legitimate while declaring others to be illegitimate[1]. It is of tremendous importance in society and is considered supreme. This is evident from the famous words of the English Writer Thomas Fuller who stated, "Be thee ever so high, the Law is above thee[2]." But, when we analytically construe the edifice on which Law stands, we see no fixed definition for the same. Jacques Derrida portrays this idea in 'The Mystical Foundations of Authority' when he puts forth his argument that the 'ultimate foundation of law is by definition unfounded.'
Upon looking into the conception and foundation of Law, scholars have varied opinions. Gerald Postema points out that Law arose out of the political scenario in England during the sixteenth century and stood on the edifices of Justice, common good, and expediency[3]. Conversely, the theoretical division of the state and governmental authority from religion, morality, and legal systems has served as the foundation for modern Western concepts of Law[4].
Jacques Derrida puts forth the distinction between Law and Justice and asserts that Law is capable of deconstruction, whereas Justice, which exists beyond Law, is not so. The difference between Justice and Law in modern jurisprudence (and formalism) is that Justice is typically thought of in terms of moral and political things, whereas Law is just a set of rules. Put differently, the legal answer may not always be what we consider the just one. The formalist argument, in particular, contends that the legal solution can and should be chosen without considering morality or Justice[5].
[1] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 14.
[2] Susan Ratcliffe, Oxford Essential Quotations, (Oxford University Press, 4th ed, 2016).
[3] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 40.
[4] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 80.
[5] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 158.
Various debates have been regarding the importance of Law and its role in society. As discussed above, many believe that Law is supreme and all must adhere to it. But there is a contrary theory too. Such is the theory provided by the famous French thinker Michel Foucault[6]. According to this learned scholar, power is of utmost importance in a society and is distinct from physical force or legal guidelines. Also, it is not hostile to truth or freedom. It performs the task of disciplining and punishing to maintain social order. According to him, the use of power makes us docile, which enables a society to flourish[7]. Therefore, as per his conception of a society, the role of Law takes a back seat giving prime importance to disciplinary power. Nonetheless, his theory does not entirely expel 'law' but merely does not consider it supreme.
Legal philosophers have tried to develop an overarching theory of Law that would serve as an essential foundation for all legal systems[8]. But just like Philosophy, it is found that Jurisprudence is not unified. This has caused difficulty in finding one true basic foundation for all legal systems.
Many elements of substantive Law, as well as the concept of Law itself, as it has traditionally been conceived, are based on the idea of a unified actor who is independent and rational. Criminal Law, Contracts, Torts, and other areas of Substantive Law all rest on the concept of independent thinking and acting subject. These autonomous rational components are combined to form the system which they simply act and respond upon. Ngaire Naffine has shown that the Law, which is built on the Enlightenment Model of a rational, independent person, holds out a concept of the legal actor and places this specific ideal of subjectivity at the very centre of Law. This person's autonomous nature is portrayed by representing him as an island.
In philosophical modernity, there is an attempt to formulate fundamental universal theories that remain true irrespective of the changes in society. This is mainly done to achieve 'closure' to ensure that such philosophical ideas have no gaps. But the same may not always be true as these philosophical enquires are based on assumptions involving the rational and autonomous individual, not facts. To counter this notion, Michel Foucault[9] stated that the man whom we consider an island for being autonomous and who is regarded as the 'ultimate' intellectual in the Enlightenment Model, with a sound conception of Law, may have been, as a matter of fact, an actual person who used to exist in the nineteenth and early twentieth centuries, upholding the principles of one true ideal Law by rendering Justice. Hence, here too, it is evident that there are notions and counter notions, not giving rise to a true and ultimate foundation of Law.
[6] Raymond Wacks, Understanding Jurisprudence, (Oxford University Press, 6th ed, 2021) 222.
[7] Raymond Wacks, Understanding Jurisprudence, (Oxford University Press, 6th ed, 2021)
[8] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 346.
The lack of an ultimate answer by modernism paved the way for the era of postmodernism which was governed by the ideals of pessimism. It challenged the preconceptions provided in the age of modernism[10]. The main aim of post-modernistic thought was to show the fragmentation in the ideas that were portrayed as a whole in the era of modernism.
According to Jean-François Lyotard, a glimpse of an almost endless number of new fields of thinking has emerged due to the proliferation of knowledge forms and the dissolution of the historically distinct divisions between fields of study. As a result, the concept of a universal unifying principle is now practically impossible[11]. This, in fact, supports Jacques Derrida's argument that the 'ultimate foundation of law is by definition unfounded.' Hence, it is understood that jurisprudence is a very complex and nuanced subject whose foundation cannot be considered a single source of Law like the Grundnorm. However, rather it is made up of many intricate legal relationships, including opinions from the community, judicial precedents, and legislative acts[12].
Law being the primary subject of study in legal philosophy, Anglo-American legal philosophers have frequently thought that a positive definition of Law could be found that would be specific in defining what Law is. However, in doing so, a line was always needed to be drawn to separate Law from not-law in order to maintain analytical clarity. We must be able to describe what Law is before we can define it. There are arguments that such a goal, to differentiate Law from morality and other normative systems analytically, not only does but must fail. These arguments are the crux of the concept of 'deconstruction.'[13]
[9] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 348 (footnote 14).
[10] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 349.
[11] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 352.
[12] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 354.
[13] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 361.
"Deconstruction" is a term that is frequently used to define aspects of Jacques Derrida's views[14]. Derrida emphasises that Western philosophy is "logocentric," which means that it consistently tries to place one term or word at the centre of theory. He said that such is the case with Law, since the Western Philosophers tried to present Law as a part of a unified legal system[15]. He undermined the same and said that a concept such as Law could never be self-defining or wholly present[16]. Conversely, a concept is defined by what it is lacking. Rodolphe Gasché[17] supports this by explaining the 'impurity of concepts' and stating that philosophical concepts are not homogenous in nature, they get all their attributes owing to the presence of 'otherness,' that is, external influences, in them.
As it is now understood, Law consists of many varied views, including the dominant and minor ones. These are given by jurists and philosophers across different schools of Jurisprudence, like the Positive School, Analytical School, Historical School, and so on. Hence, it would be possible to deconstruct Law as varied opinions and views are a sine qua non for deconstruction, which basically creates altered versions of dominant views. Deconstruction, in this regard, entails the disclosure of ideologies. It does not involve careless destruction but rather a thoughtful and responsible inquiry into the subject. It eventually invites a critical evaluation of the fundamental presuppositions of Western philosophy[18]. Another reason which gives way to such varied views in Law is the nature of Law. This is because Law as a concept is not static and keeps on changing according to the needs and mindset of society. Hence, such a dynamic field is bound to have nuanced views on it, making Law favourable for deconstruction.
Just like Derrida, positivists have also undertaken the task of making distinctions with regard to Law. This is because, to understand Law completely, it is essential to see the difference between Law and non-law. Talking about non-law, they have laid the main emphasis on the concepts of morality. According to them, Law is a closed system since it appears to be self-contained, but on the other hand, concepts like morality are outside and beyond the constraining refines of Law, and hence a distinction should be drawn between them. This way of thought resonates with Jacques Derrida's difference of Law and Justice, wherein he stated that Law is capable of deconstruction, whereas Justice which is beyond and outside it, is not.
[14] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 382.
[15] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 383.
[16] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 384.
[17] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 384.
[18] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 388.
In this regard, Joseph Raz has given a clear view of limit of Law as he stated that Law has a limited purview and is not infinite in its ambit. He emphasised that there is a boundary showing the limits of Law beyond which exists non-law[19]. So, while stating the same, he has, in fact, supported the notion presented by Jacques Derrida that Justice is distinguishable from Law since it is outside and beyond Law.
According to Derrida, the origin of Law is mystical since we are not able to completely comprehend the legality of Law either from historical or an analytical point of view[20] as it befuddles our sense of legal, non-legal, or illegal. Hence, summing up, Derrida firmly emphasizes that Law in this regard is 'essentially capable of being deconstructed.' In addition, Derrida partially distinguishes between Justice and the Law. He puts forth that Justice is not a new normative system that exists on a different level from Law; instead, it is only made possible by the presence of Law and the fact that it is deconstructible. The essence of this distinction he made was that since Law can be deconstructed, Justice is achievable[21].
I firmly support the argument given by him that Law is "deconstructible" because it is based on norms and other criteria that, at some point, lose their certitude or determinacy due to linguistic barriers or the paradoxical nature of the foundation of Law, which causes Law to become undecidable at a point when a judgement is necessary.
The reasons to support the argument supporting the distinction between Law and Justice and why is Justice not deconstructible, whereas Law is, appears nuanced. Firstly, since Law simplifies and excludes uniqueness and dominates its field of operation, it cannot be equated to Justice. On the other hand, Justice pays more attention to the application of Law[22]. Secondly, Law fails to focus on the peculiarity in each case and neglects the distinctive factors which each case presents. It simply straight-jackets the case into the rules and regulations that are applicable therein. This is because the primary purpose of Law is to operate in order to progress in the matter, but this, in turn, causes a lack of focus on the variations in each case. Yet, conversely, Justice exists to address the uniqueness of a case. If there is no law suitable for that particular scenario, then in such a case, justice 'reinvents' a modified version of the Law to cater to the case in order to ensure that the path of righteousness is followed. Thus, Justice is the most effective tool which helps to fill the gaps in the circumstances where an applicable law does not exist. This proves that Justice is much more significant than Law owing to its broader ambit and is definitely outside and beyond Law, as argued by Jacques Derrida.
[19] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 390.
[20] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 396.
[21] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 396.
[22] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 397.
According to my understanding of Law and Justice, based on Jacques Derrida's arguments, Law is merely mechanical because it is limited to the rules that are made. This creates Law as a calculable field. On the other hand, Justice is incalculable and is much larger than mere legal rules because it is a sense of righteousness that exists amongst each of us and is that sense in us which helps us create Law whenever the situation so demands[23]. It can be said that Justice is a bigger and more powerful concept that can make or break laws, whereas the reverse is not true. Justice is the most potent tool in the legal realm as it has the power to distinguish just from unjust, right from wrong. Hence, the incalculable nature of Justice is the prime factor why Justice is not deconstructible. These reasons made me agree with the arguments provided by Jacques Derrida.
Therefore, I agree entirely with Jacques Derrida's argument that Justice is not deconstructible, whereas Law is. After perusing all of the theories and points mentioned above, I also believe that the distinction made between Law and Justice by Jacques Derrida is appropriate and gives the concept of Law and Justice more clarity with his postmodernism concept of 'Deconstruction.' Hence, through this method of understanding, the idea at hand has become simple and comprehendible.
[23] Margaret Davies, Asking the Law Question, (Thomson Reuters, 4th ed, 2017) 398.