Wednesday, February 23, 2005

Derrida and the Bush administration

While we were going to Bhangra concerts in New York over the weekend, Scott McLemee was attending a serious conference on the legal implications of Jacques Derrida's work. The primary emphasis was Derrida's oft-cited 1989 essay "Force of Law." Towards the end of his column on the event at Inside Higher Ed, McLemee reports on the comments of a Yale University law professor named Jack Balkin:

The oddest and most contentious turn in the discussion may have been the remarks of Jack Balkin, a professor of constitutional law at Yale, who, in a sardonic way, implied that there might be a hotbed of deconstructionist legal thought in the Bush administration. He sketched an outline of Derrida's formulation of three "aporias" (that is, unpassable points or double binds) in the relationship between justice and law.

For example, there is the aporia that Derrida calls "singularity." The law consists of general rules, and to be just, those rules must be equally binding on everyone. Yet while it is illegal to kill another person, it would be unjust to impose the same penalty on an assassin and someone defending herself from attack. Thus, justice exceeds even a just law.

Likewise, Derrida pointed to the aporia of "undecidability" -- the law guides the judge's decision, but the judge must decide which particular laws apply in a given case. And there is an aporia of "urgency" -- for while the legal process unfolds in time, "justice," as Derrida put it, "is that which must not wait." In each case, justice requires the law, but exceeds it.

"The Justice Department," said Balkin, "has invoked all three aporias of law" in the "war on terror." He ran through the list quickly: The suspension of due process in some cases (singularity). The government must have the discretion to apply the law as it sees fit, given its knowledge of circumstances (undecidability). And justice demands swift, even immediate action (urgency). "I am afraid that Bush has hoisted Derrida by his own aporias," said Balkin.

This is a clever point. But does it necessarily invalidate Derrida's theorizing? It's quite possible that what is true for Bush was equally true for Clinton.

The contestable point, then, might not be the question of whether Derrida's theory is essentially liberal or conservative. Probably it is neither, in the sense that it is useless to both. The real question is whether it makes any sense to call Bush a "deconstructionist" of the law for the ways in which he has simultaneously "applied" the law and "exceeded" it.

But in textbook deconstruction, deconstruction simply happens -- in structure, in authority, and in social order. With the Law, we could say that the law does it to itself; deconstruction isn't something that is claimed ideologically or mastered. So it's pointless to worry about Bush's performance of deconstruction. In this way of thinking (and if I'm understanding McLemee's synopsis of Balkin's point), Balkin's is essentially a clever debating point, not a reading of Derrida.


Adam Kotsko said...

I'll go a step further: Balkin's argument is obscene, insofar as the reference to "justice" in the case of Bush is completely inapplicable. He might talk about "freedom" (as in "economic freedom" -- almost every time he says that word, "economic freedom" is the only thing that makes sense in context), but he doesn't really talk about justice. Or hospitality, or welcome, or pardon, or any other distinctive Derridean theme.

To tear one part of Derrida's teaching out of context (indeed, out of the context of the very essay in which it appears) and compare it in a superficial way to the behavior of a terrible ruler who is friend only to the wealthy and powerful -- is offensive and obscene. Not clever, not provocative -- but stupid.

6:11 PM  
amcorrea said...

Forgive my ignorance, but I read Balkin's comment as a devastating critique of the Bush administration. By using "Derrida's formulation of three 'aporias'" he demonstrates that the "war on terror" is actually a contradiction of itself--a vacuous tautology.

9:01 AM  

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