Sunteți pe pagina 1din 14

Ratio Juris. Vol. 11 No. 2 June 1998 (168–79)

NOTES • DISCUSSION • BOOK REVIEWS

The Economy of Violence:

Derrida on Law and Justice

ROBERTO BUONAMANO

A. Law, the Complicity of Right and the Aporetic Experience of Justice

Let me begin by gathering, in a sweeping and paradigmatic move, three “Derridean” propositions about the law:

1. The law always tends towards universality;

2. The law operates to maintain, and thus is inseparable from, rights;

3. The law is bound up with the silence of its own force, and is self-

preserving.

1. This is a reference to the structural formulation of the law (not its

ontology): The moving principle of “intentional content” of the law is gen- erality; “its meaning requires that in its immediacy it must extend beyond the historical, national, geographical, linguistic, and cultural limits of its phenomenal origin” (Derrida 1987, 22). This tendency towards universality might be understood in regard to its implications of disposition, movement and direction. Derrida seems to suggest that whereas the law always presents itself as singular and idiomatic, 1 it disposes and inclines itself, by movement and a direction, to rules, norms and values which, a priori, have a general form. It may apply itself, permit on each occasion to be exercised singularly for each case, and this is in fact its appearance (representation) of accessibility, whereas, or rather precisely by reason that, it necessitates a gravitation to universality (the “right path,” the “good direction,” the “just decision”). It is because the law is universal that it is applicable to everyone and can apply

1 In the sense of Kafka’s representation of the law appearing to the countryman as the beyond of a door and its keeper, a door which has been made specifically for that countryman (Derrida 1992a, 183–84, 210).

© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

Derrida on Law and Justice

169

itself “justly” in each case—this preliminary already raises the apparent para- dox of simultaneous universal and singular, or general and specific, prop- erties, a paradox which establishes the conditions for rendering imperative the distinction between law and justice. We might understand the proposition in another, related sense utilising Kant’s notion of the law as pure form and without substance. It is in the very purity and indeterminacy of the law that its movement to transcendence and universality lie. This would amount, in Deleuzian terms, to equating “pure form” with the law’s concealment of itself, of its object and determination. To be subject to the law is to accede “in advance” to our guilt before it—“the process by which the law manifests itself in its absolute purity and proves us guilty” (Deleuze 1991, 84). The law is manifested universally to the extent that it operates as pure form, irreducibly and perpetually concealing its content. It transcends the phenomena associated with our actions (we obey, that is, accept its authority, in anticipation and supposition of transgression —it exists before and beyond our actions) at the same time that it portends to evaluate those actions (through concepts such as responsibility, guilt and punishment). Derrida relates this transcendence as the impossibility of en- gaging the law in a narrative, for the law cannot furnish any story: “To be invested with its categorical authority, the law must be without history, gen- esis or any possible derivation” (Derrida 1992a, 191). This is the power of sovereignty of the law, the principle by which it prohibits direct experience of it whilst “rendering irresistible the journey toward the place and the origin of law” (Derrida 1992a, 191–92).

2. The nature of “right” assumes an indeterminate and equivocal status in

Derrida’s writings. At one point in Force of Law Derrida equates the term “juste” (translated as just) in one of Pascal’s Pensées (“It is just that what is just be followed” (my emphasis)) with “right” (“But this ‘must be followed’ … is right”) (Derrida 1992b, 10). At another point he translates “droit” as “right or law” (Derrida 1992b, 13); the conjunctives “right or law” appear frequently in the essay, apparently evading a definitive distinction between the two terms. Further, the terms “right” and “law” occasionally appear as synonyms (distinct from conjunctives), one cryptically replacing the other (“To address oneself to the other in the language of the other is, it seems, the condition of all possible justice, but … it is not only impossible … but even excluded by justice as law (droit), inasmuch as justice as right seems to imply an element of universality” (my emphasis) (Derrida 1992b, 17). There is a sense in which “right” operates as a mediating factor between law and justice. To speak of the “just law,” to attempt access to the law, as the inaccessible, one has only the discourse of rights at one’s disposal. Derrida goes some way to implying this in his reference to the laws of literature. To understand a text as a text, writing as literature, amounts to achieving a consensus between readers. This consensus depends upon a system of laws and conventions, which are both of the essence of the text and the tools for

© Blackwell Publishers Ltd 1998.

170

Roberto Buonamano

interpretation. The laws found are manifested through certain presupposi- tions: the text’s identity (singularity and unicity), author (distinct from the characters) and narrative (related events) (Derrida 1992a, 184–87). At one point Derrida conceptualises these presuppositions as rights; hence, articu-

lation of the rights of identity, authorship and narration is the means by which

a reader attempts access to the text, that is, to, and through, an interrogation

of its laws and conventions. We may say that rights are as necessary to law as the law is the source of the maintenance of rights. We might not perceive the law as a door, an access, were it not for the mediation of rights. For all that, rights derive their ontological strength from law, and cannot thus be separated from it, notwithstanding the temptation to align right with justice, with an alternative discourse empowered with the critique of law. Whilst Kafka’s countryman initially perceives his relation to law as one of right to access, the right to engage the law in his peculiar story, to access the rights which the law ensures (“the law, he thinks, should be accessible at all times and to everyone”) (Kafka as quoted in Derrida 1992a, 183), he is confronted with the unexpected difficulties of an indeterminate number, and inde- terminately increasing strengths, of doorkeepers; he is thus confronted with

the realisation that rights do not constitute an entity that is independently possessed and thus permits access to law, but rather are the agent of the law, bound up with its transcendence, merely offering the desire for engagement

with it. 3. The third proposition explicates three assertions: the law as force, the silence of this force, and the self-preserving quality of the silence. Derrida remarks that the phrase “to enforce the law” or “enforceability of the law” reminds us that “law is always authorised force, a force that justifies itself or

is justified in applying itself” (Derrida 1992b, 15). The auxiliary verb “is” in

the quote (“law is always authorised force”) is crucial: The relation is not one of law in the service of force, as Derrida makes clear, nor of force in the service of law; it is rather that of law as founding, justifying and preserving force (the force “in,” “of” and “as” law, simultaneously). It is for this reason that legality and legitimacy are interdependent: The law functions to legit- imise itself, and legitimacy is only meaningful in the context of, and neces- sarily presupposes, a system of laws. Law, in its instituting and founding moment—the origin of authority—consists of “a performative and therefore interpretative violence that is itself neither just nor unjust” (Derrida 1992b, 13). Derrida sees this as its “mystical foundation”: the silence in the violent structure of the founding act. The instituting violence of law defies the justice discourse, for it is ungrounded violence, authority that rests upon itself—the legality, hence legitimacy, of itself. One cannot ground (legitimise) what is the very act of self-legitimating. This mystical silence, mystical in the sense that as silence it nonetheless reiterates and propagates law, speaks the law over and over again, exists at the origin of law and its conditions. So, and this is the beginning and very condition of justice and deconstruction,

© Blackwell Publishers Ltd 1998.

Derrida on Law and Justice

171

law is deconstructible, either because “it is founded, constructed on inter-

pretable textual strata,” or because “its ultimate foundation is by definition unfounded” (Derrida 1992b, 14).

A deconstruction of law, Derrida explicates, does not aim at an effacement

of law “before the ethico-politico-juridical question of justice”; instead, it positively renders justice possible by adopting an excessive and incalculable responsibility to the question. This responsibility is that of memory or recol- lection: a recollection of law as history, the origins and directions of laws, rights and norms, the grounds of our “conceptual, theoretical or normative apparatus surrounding justice”; hence, an understanding of the limits of law and right and what is at stake (what is being asked of us, what justice demands) in speaking of the just and unjust (Derrida 1992b, 19–20). This responsibility, this purposive stance towards the ethical, can only exist “with the experience and experiment of the aporia” (Derrida 1992c, 41). The aporetic experience is necessarily experimental: Where knowledge precedes the path it is illuminating, our actions are merely programmatic; one can act responsibly only because knowledge has not heralded its arrival, because we are faced with an impasse that must be tested. To do justice, therefore, is to

test the aporetic experience of justice, that is, to assume a responsibility for it. To deconstruct the law is to take seriously the incestuous relation between law and justice, rather than to attempt to justify the division and thus master the opposition. Law and justice must be understood as inexorably and non- systematically linked: “It turns out that droit claims to exercise itself in the name of justice and that justice is required to establish itself in the name of a law that must be enforced” (Derrida 1992b, 22). Derrida provides us with some of the aporias involved in this (dis-)juncture of law and justice. First, the exercise of justice presupposes freedom to act and self-willed behaviour. So, the judge, who in judging is required to follow

a law or prescription, qualities inherent in the very definition of “decision”

(there is a sense in which every decision is necessarily legal, though in hier- archical conflict) is nonetheless expected to create a “fresh judgment”: that is, he is expected to both follow a law and confirm and reaffirm it by a free adoption, a “reinstituting act of interpretation” that treats each case as idio- matic and not peremptorily decidable (Derrida 1992b, 22–23). A decision can- not be considered just if it unproblematically follows rules, nor if there is no reference to particular rules or the prescience of general principles; the former amounts to mechanistic calculation, whilst the latter amounts to suspending the decision, since it is confined to the judge’s interpretation. Paradoxically, at no moment can we say in the present (Derrida emphasises these words)

that a decision is just, only that it is “legal or legitimate, in conformity with

a state of law, with the rules and conventions that authorise calculation but

whose founding origin only defers the problem of justice” (Derrida 1992b, 23).

If law cannot be exercised without a decision (which necessarily “cuts” and

“divides”), and if the decision is rightly understood as the multiplicitous

© Blackwell Publishers Ltd 1998.

172

Roberto Buonamano

programme of learning, reading, understanding, interpreting and calculat- ing the rule, the decision to decide (to invoke the law in the name of justice, and to risk a conclusion with inevitably legal and justiciable consequences) must belong to the incalculable, the undecidable. Derrida understands this undecidable as an experience heterogeneous and independent of calculation and the rule, whilst obliged to take account of law and the rule in submitting itself to the “impossible decision” (the just decision). The free decision, that which is not merely the “application or unfolding of a calculable process,” presupposes the “ordeal of the undecidable” (Derrida 1992b, 24). And so we have a second form of the aporia: This ordeal of the undecidable lurks behind every decision, impelling itself as the possibility of justice in the impossibly just decision. It is aptly represented as a “ghost” to reflect its double-binded relation to the present: As the spectre it exists only in the present, and yet in the present it constitutes the memory of an experience that cannot fulfil itself, in the present. The just decision cannot derive from the realised or unfolded calculation process, but it also cannot derive from the suspension of the undecidable, since “only a decision is just.” The moment of the undecidable cannot be “past” or “passed”—it exists, recurs, in the pre- sent but only as the presentiment of its reality. It perpetually puts in doubt the achievement of the presently just decision. In Specters of Marx Derrida utilises the experience of apparition in Hamlet, the notion of a past haunting the present in order to induce the righting of a wrong, to suggest the spectral quality of justice and deconstruction. To the extent that right can only come after the crime (hence, the originary wrong), the attempt to do justice in the present is faced with the injunctions of these wrongs; it is “necessarily second generation, originarily late and thus destined to inherit,” such inheritance requiring a coming to terms with spectres (Derrida 1994, 21). Hamlet’s phrase, “the time is out of joint” (“The time is out of joint: Oh Cursed spite, That ever I was borne to set it right”: Act V Scene I), alludes to a necessary adjunction or conjunction—the expectation or assumption of time being in tune, in alignment, with history; that is, the present reflecting the well-ordering of affairs, the functioning of law. At the same time, we are asked to understand the phenomenon of disjointure, at least the burden it imposes on Hamlet, as a matter of “spite,” that is, ill- natured or the ill-will of nature desiring injury. There is nothing contingent about this disjointure, as Hamlet comes to realise—it is as fateful as time, as the ordering of the present. Derrida locates the aporetic instance in Hamlet’s predicament: If adjoining in general preliminarily presupposes the adjoining or justice of time, what happens when time itself is out of joint (Derrida 1994, 22)? Is justice always and necessarily a justice to come, impossible both in the past and in the present? We understand why justice can never be aligned with the jointure itself, as Heidegger would have it in subsuming the concept of justice under the sign of Presence (Derrida 1994, 27). Justice is born of the very disjointure,

© Blackwell Publishers Ltd 1998.

Derrida on Law and Justice

173

it presupposes the disadjustment of time (“corruption of city,” “moral de- cadence,” “perversion of customs”) which sets up the requisite relation, as distance, difference and deferral, between law and justice. It is only with disjointure, law’s calculation coming apart, a break in the programmatic such that law cannot easily calculate decisions, that the possibility of a rela- tion “to the other” can emerge. To say that the time is out of joint is to accede to the possibility of deconstructing time (history and its laws), to provide the condition for a de-totalising critique—this is to appreciate that justice remains immersed in disjointure, from where it derives (Derrida 1994, 28). If justice is inseparable from the stage of an experience “to come,” we notice a third aporia in the necessary immediacy and urgency of the just decision. The decision “cannot furnish itself with infinite information and the unlimited knowledge of conditions, rules or hypothetical imperatives that could justify it” (Derrida 1992b, 26). It cannot be a response from a privileged theoretical or historical standpoint; in its inescapable finitude, it operates as an “interruption of the juridico- or ethico- or politico-cognitive deliberation that precedes it” (Derrida 1992b, 26), reinstituting the immin- ence of law by depriving it of this basis in knowledge. And yet justice cannot result from such perpetual urgency and precipitation, at least not in the sense of the “Kantian regulative idea” of the “messianic advent”—those “horizons of expectation” as Derrida likes to call them. The “to come” of justice ensures that it remains present in law and its institutions only as a possibility and not as an expectation or idea regulator. The possibility is, inter alia, the possibility of a new history for the law. It allows the transformation of legal systems by refounding, reconstituting and reinstituting them, con- ceiving of new ways in which to overcome the calculation of law and right. Derrida seeks to derive from this aporia an avenue for ethical struggles in the juridical and political spheres, and it is clear from the outset that this avenue can only be contemplated through a critique of violence, of the violence of law and its role in justice.

B. The Threat of Mythic Violence

“And also, in what does its strength consist, strength precisely in the sense of Gewalt, that is, its violence, authority and legitimacy?” Derrida rhetoric- ally asks of Walter Benjamin’s Critique of Violence (Benjamin 1986). Derrida explains his choice of this Benjamin text, its exemplary feature: In critically moving through a series of crucial but self-limiting distinctions (law-making and law-preserving violence, mythical and divine violence, justice and power) the study facilitates its own self-deconstructive reading. Benjamin begins by outlining his problematic. He is not interested in appropriating either natural law theory, with its concern to justify means by claiming the justness of ends, or positive law theory, with its concern to guarantee ends through justification of means. Both theses suffer the same

© Blackwell Publishers Ltd 1998.

174

Roberto Buonamano

dogma, that is, the necessarily causal relation in the justification of means and the justness of ends. Instead, his agenda is “the question of the justifica- tion of certain means that constitute violence,” and specifically an interro- gation of the meaning of the historical distinction between sanctioned and unsanctioned violence (Benjamin 1986, 278–79). Violence exists both within and outside the law—it serves “natural ends” as well as “legal ends.” There is necessarily tension here: Where the violence in natural ends is excessive or beyond the manipulation of legal ends, law comes under direct threat, not in the sense of its legal ends, for the excessive violence would then merely be turned to illegal ends and thus remain in a direct relation with the law, buttressing its legitimacy. Rather, it is the legal order itself which is threat- ened by this violence, which is fundamental in the sense of striking at the very foundation and legitimacy of law. Thus, the law takes an active interest in monopolising violence in order to preserve itself (Benjamin 1986, 280–81). We can see the direct implication for rights discourse. The exercise of a right, which involves the use of force to attain certain ends, is an instance of violence, whether active in attempting to overthrow the legal order that gave it birth (for example, organised labour and the right to strike) or passive in the sense of the power of extortion, and even if the desired ends are natural rather than legal. Benjamin’s thesis that at the origin of law is violence leads him to distin- guish a law-making violence from a law-preserving violence. The former is the very condition of violence: “All violence has a law-making character,” regardless of whether it is in the service of the state or in combat with it. Violence as counter-violence against an existing legal system aims to modify legal conditions, to re-make the law, either by replacing the existing laws (for example, the general political strike) or by destroying the state’s power in favour of a new mode of power (the general proletarian strike) (Benjamin 1986, 291; Derrida 1992b, 48). Law-preserving violence, that which continues and maintains the hegemony of a juridical order, can be seen as the admin- istrative corollary to law-making violence, crucial in responding to the fini- tude of founding violence and allowing it to establish a static presence which all counter-violence (in its law-making functioning) runs up against. Benjamin perceives the worst case of legalised perversion, sanctioned violence in its most extreme form, to exist in the combining of these types of violence in the one institution. His case in point is the modern police force:

“Police violence is emancipated from both conditions. It is law-making, for its char- acteristic function is not the promulgation of laws but the assertion of legal claims for any decree, and law-preserving, because it is at the disposal of these ends … Its power is formless, like its nowhere tangible, all-pervasive, ghostly presence in the life of civilised states.” (Benjamin 1986, 286–87)

Benjamin’s typology of violence, Derrida believes, announces its own irredu- cibility, the distinction self-destructs when taken to its logical conclusion.

© Blackwell Publishers Ltd 1998.

Derrida on Law and Justice

175

First, the founding violence of a state is made possible only by the auto- graphic fiction of its origin. “The total unity of a nation” (Derrida is referring to a new constitution representative of all of a nation’s inhabitants replacing a colonial or racially segregated state)

is not identified for the first time except by a contract—formal or not, written or not— which institutes some fundamental law. Now this contract is never actually signed, except by supposed representatives of the nation which is supposed to be “entire” [the colonial or segregated, unrepresentative, state]. This fundamental law cannot, either in law or in fact, simply precede that which at once institutes it and nevertheless supposes it: projecting and reflecting it! It can in no way precede this extraordinary performative by which a signature authorizes itself to sign, in a word, legalizes itself on its own without guarantee of a preexisting law.” (Derrida 1987, 20)

Thus, the law-making violence that is needed to reform existing laws or replace an existing constitution derives its force from the violence that conserves the existing juridical order, since it is only from within the existing system that the exercise of rights, or even anarchic pretences, can be founded. Put simply, law-making violence cannot precede the performative act, and its concomitant conserving force, which makes it possible. There are inevit- able traces of the law-preserving violence of a previous order in any sub- sequent reform of law. A second and related contradiction is that, whilst “it appears easier to criticize the violence that founds since it cannot be justified by any preexisting legality and so appears savage … it is more difficult, more illegitimate to criticize this same violence since one cannot summon it to appear before the institution of any preexisting law” (Derrida 1992b, 41). We cannot critique violence in the singular, law-making violence, which in founding new law “extends, radicalizes, deforms, metaphorizes or metony- mizes,” is projected by “iterability” even in its “originarity”: it is the implica- tion of a prior law in every performative act of force, or the corruption of reform by its antecedent. These problems represent the double bind of the Benjaminian schematic of violence: Conserving violence constitutes both the threatening face of the law, and that which threatens the law, the law-making power of the law (Derrida 1992b, 42). The distinction is collapsed in this double bind. The double bind is akin to what, in another context, Derrida refers to as the “economy of violence” (Derrida 1978). The violence involved in discourse generally, and specifically in every practice of metaphysics, stages a war in which the task of deconstruction is to counteract the aggression of speech as presence. The peace envisaged is that of a certain silence (“a certain beyond of speech”). “But since finite silence is also the medium of violence, language can only indefinitely tend toward justice by acknowledging and practicing the violence within it. Violence against violence” (Derrida 1978, 117). Inherent in discourse is the violence that represses it, which must be combated with other violence, the violence of otherness. The economic element is the fact that the force of deconstruction or justice derives from violence that it seeks

© Blackwell Publishers Ltd 1998.

176

Roberto Buonamano

to address, at the same time that it desires to go beyond it. One violence is played out against another for the sake of an other condition, a condition which indelibly bears the mark of its history—of the history of its violence and the violence of its history. “This vigilance is a violence chosen as the least violence by a philosophy which takes history, that is, finitude, seriously” (Derrida 1978, 117). For Benjamin, the history of this other condition, that which makes decision possible, lies in replacing the “mythical violence” of the law with the justice of “divine violence.” The violence that founds and conserves law guarantees nothing but power. As it operates to ascribe rights to all parties, even after a war has been won and the victor reigns supreme, law cannot but set bound- aries, decide “frontiers,” which apply universally to inhibit action contrary to its immanent self-protection (Benjamin 1986, 294–97). Benjamin claims that this law-making violence is the manifestation of the existence of Gods, hence the self-sufficient power of the myth. In the instance of its institution, law does not dissolve the violence it seeks to replace; law making sets up violence as the means to an end that is the law “necessarily and intimately bound to it, under the title of power” (Benjamin 1986, 295). It is only divine end-making that truly seeks the destruction of law, the tearing down of boundaries set up by law, and it is able to do so with expiation rather than guilt and retribution, and without spilling blood (Benjamin 1986, 297). Thus divine violence derives its force from being outside the law and its law- making function. Benjamin notes one manifestation of divine violence, cur- rently sanctioned by law, which in its perfected state would be outside law:

education. The educative power is an example of the immediate moment of expiating violence that strikes without bloodshed. Whilst this power is annihilating, it is so in the creation of the good, the right and life itself (Benjamin 1986, 297–98). Benjamin wants us to conceptualise divine power as a new historical era, a history that is non-juridical, that is freed from the violence and authority of the state, to interrupt and replace the history of the myth, which is that of state-sanctioned legal violence. Derrida suggests the aporetic implication of this section of Benjamin’s text. It is too simplistic to take from the thesis a pure and operative distinction between the undecidability of law (mythical violence) and the decidability of justice (divine violence). For Benjamin goes on to say that “only mythical violence, not divine, will be recognizable as such with certainty, unless it be in incomparable effects, because the expiatory power of violence is not visible to men” (Benjamin 1986, 300; my emphasis). It seems that the pure and im- mediate “revolutionary violence” which invokes decision nonetheless remains inaccessible to man, that is, indeterminant knowledge; whereas, the undecid- able mythical violence of the state is experienced as certain knowledge. “On one side the decision without decidable certainty, on the other the certainty of the undecidable but without decision” (Derrida 1992b, 56). Derrida remarks that this dilemma runs at the very core of deconstruction, invoking

© Blackwell Publishers Ltd 1998.

Derrida on Law and Justice

177

the non-singularity and non-localisable structure of justice. It is not possible to set up divine justice in direct opposition to mythical power, and to declare the “sovereign violence” of divine violence, as Benjamin does in exiting this thesis, precisely because what we think of as justice is a plurality of “impure, contaminating, negotiated” and bastardised filiations between the two forms of violence. We are reminded that the decidability of justice implicates the legality, the law-making violence, that is implied in any decision: “In one form or another, the undecidable is on each side, and is the violent condition of knowledge or action” (Derrida 1992b, 56).

C. The Question of Revolt

What are the implications of the economy of violence for the notion of law

reform, taken in its broadest sense (re-formation, re-institution of laws or

a legal system)? I wish to address this question in only a cursory way by

merely raising the problematic relation of justice and revolt. It should not sur- prise that at the heart of each of Derrida’s treatments of law is the question of revolt. We may interpret his reading of Kafka’s Before the Law as, amongst

other things, an attempt to conceptualise the impossibility of direct engage- ment with law in its pure form as implicating the necessary task of challeng- ing, revolting against, its very presence. Similarly, we may consider Derrida’s dedication to Nelson Mandela as a discussion of the stakes involved in bringing the premises of a political-legal system into question, in an attempt to effect a transformation which seeks to efface its foundations whilst aware of the inability to transcend the history of the existing and former political- legal systems. More recently, we can read in Specters of Marx (Derrida 1994) an explicit desire to account for the legacy of Marx’s philosophical revolution, seeing it as indispensable to any critique of current political, legal and moral domains, particularly in light of the hegemonic presence of global-economic

and neo-liberal discourses. However, we should avoid the elementary conclusion that revolt is the practice of justice. It is true that Derrida maintains a relation between justice and revolution, but this relation cannot be reduced to the dominant “theory- praxis” paradigm. It may be that the act of revolt is, in certain circumstances,

a condition for the exercise of justice, perhaps even a pre-condition; none-

theless, they cannot be simplistically reconciled. Revolt exists within law, albeit at its limit, rather than beyond it. In this sense, the revolution is never

anarchic, if this term is understood in its ideological connotations. 2 One cannot overturn fundamental laws or overthrow a legal system from without,

2 Here, the related question of the structure of anarchy is raised. To what extent may anarchy be practised, if such is to act upon a legal system from beyond it and without presupposing a replacing set of conventions and institutional framework? In its ideological context, anarchy exists as a regulative rather than operative concept, precisely because it is trapped in this dilemma of legalism.

© Blackwell Publishers Ltd 1998.

178

Roberto Buonamano

not because one cannot be outside a legal system, but because one cannot be outside the order of law; at least, one cannot act (speak and decide with social ramifications) from beyond legal order. We might say that revolt is at

the end, not in a teleological sense but as a final act in a process of affirmation of discontent, of a certain questioning of law. That is to say, revolt is the last point of this questioning process, perhaps the final question itself. Revolu- tion is neither the beginning nor the end of counter-violence (whether or not this counter-violence is interpreted as Benjamin’s divine violence); it is rather the possibility of an event which, as possibility, mediates the violence. And so, the act of revolt attacks the violent structure of law as it surrenders itself

to the violence and appropriates it for its own use.

We are reminded of a statement Foucault makes on the topic of revolt: that the man who revolts is outside as well as inside history (Foucault 1981, 6). We can replace the word “history” in this proposition with the history of law as violence. Of course, the importance for Foucault of the man of revolt exist- ing inside and outside history is that revolt introduces subjectivity into history:

“A delinquent puts his life into the balance against absurd punishments; a madman can no longer accept confinement and the forfeiture of his rights;

a people refuses the regime which oppresses it” (Foucault 1981, 8). The

revolting person or people becomes a subject of history whilst suspending the history that oppresses it. Although Derrida doesn’t explicitly treat the

issue of subjectivity, one can rethink the act of deconstruction, in its concern with the adoption of responsibility towards history, as tracing the relation between a subject and the presence of law within that subject, and thereby putting into question the justness of the subject’s law-making actions, and ultimately the institution of law in its subject-forming mode. The problematic of revolt is conterminous with that of justice. Just as there

is no pure justice, justice purified of juridical and state (mythical) power,

there is no pure revolution. This is not to deny the force of revolt in challeng- ing law and state; in fact, it is forceful precisely because it cannot be divorced from its relation to the self-preserving violence of authority, and so is able to strike at this authority with the latter’s weapons. If we accept, even tenta- tively, Derrida’s aporias on justice, we must appreciate that to revolt is not to re-make history but to understand the history of law that survives and is revived in each act of revolution and reconstruction.

© Blackwell Publishers Ltd 1998.

The University of New South Wales Faculty of Law Sydney 2052 Australia

Derrida on Law and Justice

179

References

Benjamin, Walter. 1986. Critique of Violence. In Walter Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writing. Trans. Edmund Jephcott. New York: Schocken Books. Deleuze, Gilles. 1991. Coldness and Cruelty. In Gilles Deleuze, Masochism. New York:

Zone Books. Derrida, Jacques. 1978. Violence and Metaphysics. In Jacques Derrida, Writing and Difference. Trans. Alan Bass. Chicago: University of Chicago Press. ——— . 1987. The Laws of Reflection: Nelson Mandela, in Admiration. In For Nelson Mandela. Ed. Jacques Derrida and Mustapha Tlili. Trans. Mary Ann Caws and Isabelle Lorenz. New York: Seaver Books. ——— . 1992a. Before the Law. In Jacques Derrida, Acts of Literature. Ed. Derek Attridge. Trans. Christine Roulston. New York: Routledge. ——— . 1992b. Force of Law: The “Mystical Foundation of Authority.” In Deconstruc- tion and the Possibility of Justice. Ed. Drucilla Cornell, Michael Rosenfeld and David Gray Carlson. Trans. Mary Quaintance. New York: Routledge. ——— . 1992c. The Other Heading: Reflections on Today’s Europe. Trans. Pascale-Anne Brault and Michael B. Naas. Bloomington: Indiana University Press. ——— . 1994. Specters of Marx: The State of the Debt, the Work of Mourning, and the New International. Trans. Peggy Kamuf. New York: Routledge. Foucault, Michel. 1981. Is it Useless to Revolt? Philosophy and Social Criticism 8: 1–9.

© Blackwell Publishers Ltd 1998.

Copyright of Ratio Juris is the property of Wiley-Blackwell and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.