Violence and Law
The Legitimate Fictions of Political Ontology
Michael M. Millican
Notre droit même a, dit-on des fictions légitimes sur lesquelles il fonde la vérite de sa justice
-Montaigne[1]
What is a legitimate fiction? What does it mean to establish the truth of justice?
-Derrida[2]
What are the origins of law and justice? From whence does the finite figure of the human derive these seemingly immutable foundations of society? The work of Derrida has always sought to interrogate the possibility of discovering the origin of terms such as these. This paper will trace one line of Derrida’s inquiry into the origins of law and justice. Beginning with his distinction between justice and law as it is explicitly formulated in “Force of Law,” an examination into how Derrida’s works have always been engaged in political discourse will trace a trajectory through two of his works in particular, “Violence and Metaphysics” and The Politics of Friendship. The political framework provided by these works will then be followed in order to examine a concrete political context, the South African State under apartheid.
- Justice: Between Responsibility and Law
In “Force of Law: The “Mystical Foundation of Authority” Derrida describes the intimate relationship deconstruction has with the possibility of justice, and the manner in which deconstruction has always (always-already, perhaps), been concerned with the traditional political terms ‘justice’ and ‘law’. Given at the colloquium “Deconstruction and the Possibility of Justice” (October 1989, Cardozo Law School), the text represents a defense of the role of deconstruction in politics and an exegesis, or reevaluation, of the important position deconstruction holds for contemporary politico-philosophical discourse. In politics, deconstruction conditions the possibility of a “reinterpretation of the whole apparatus of boundaries within which a history and a culture have been able to confine their criteriology [for justice].”[3] Deconstruction, which traditionally examines the limits, boundaries, liminal spaces, horizons and margins of philosophy, has also implicated itself in the dialogue of law and justice, by interrogating the determined theoretical contexts in which political distinctions are made, particularly, ethics, ontology, theology and the constitution of the human subject. Derrida schematizes the correspondence of deconstruction and justice and law (droit) in response to the critics of deconstruction who give it the appellation of ‘apolitical’, ‘relativistic’ or ‘nihilistic’. “In the name of a demand more insatiable than justice,”[4] deconstruction responds to the problems of law and the possibility of justice. Derrida finds himself endowed with
…a responsibility without limits, and so necessarily excessive, incalculable, before memory; and so the task of recalling the history, the origin and subsequent direction, thus the limits, of concepts of justice, the law and law (droit), of values, norms, prescriptions that have been imposed and sedimented there, from then on remaining more or less readable or presupposed.[5]
Ever true to the Nietzschean inspired interrogation of origins, deconstruction is bound to the project of philosophizing with a hammer, and the Destruktion of Heidegger espoused in his oeuvre Being and Time.[6] Derrida concerns himself not only with morality, ontology or phenomenology; deconstruction is also associated with the tradition of political theology and law, which have made the determinations of justice programmatic and presupposed. For this legacy in which deconstruction is implicated, Derrida plays a pivotal role.
As to the legacy we have received under the name of justice, and in more than one language, the task of a historical and interpretive memory is at the heart of deconstruction, not only as philological-etymological task or the historian’s task but as responsibility in face of a heritage that is at the same time the heritage of an imperative or a sheaf of injunctions. Deconstruction is already engaged by this infinite demand of justice, for justice… [7]
The heritage with which deconstruction is engaged by an “infinite demand of justice” runs from Socrates to Heidegger and beyond. However, the most important figure of this heritage to which Derrida is connected, with whom he is faced with an incalculable responsibility, is the philosopher of the face and of infinite responsibility, Emmanuel Levinas.[8]
The incalculable responsibility, “before memory” which has lead deconstruction to the “boundaries of the human subject”[9] mirrors the infinite, incalculable and an-archic responsibility to the other of Levinas in his two major works Totality and Infinity and Otherwise than Being.
The responsibility for the other can not have begun in my commitment, in my decision. The unlimited responsibility in which I find myself comes from the hither side of my freedom, from a “prior to every memory,” an “ulterior to every accomplishment,” from the non-present par excellence, the non-original, the anarchical, prior to or beyond essence.[10]
This is the imperative with which Derrida is faced: an infinite/incalculable responsibility that draws him into an interrogation of the origins of responsibility, the presupposed origins on the one hand, and the non-present origins on the other, of justice and law. (Deconstruction has also been involved with Levinas since its inception, particularly in Derrida’s “Violence and Metaphysics.”)[11] For Levinas, the other is an absolute singularity incapable of being subsumed under a general description or rule that would determine the relationship between the self and the other, and the manner in which justice should be done to the other. The other is infinitely transcendent, incapable of sublimation by finite or determined thought. Justice, and especially law, which are always concerned with universality, prescriptions and dictates, work via descriptions that subsume the singularity of the other under a general rule. Responsibility to the singularity of the other and the imperative of justice for everyone, i.e. universal justice, betrays an irreconcilable difference between justice as, on the one hand, general rules of universal good, also known as laws, and on the other, the responsibility to an other that is intractable to generalities. Derrida points to this dissymmetry between justice as law and justice as incapable of being generalized in “Force of Law.”
An address is always singular, idiomatic, and justice, as law, seems always to suppose the generality of a rule, a norm or a universal imperative. How are we to reconcile the act of justice that must always concern singularity, individuals, irreplaceable groups and lives, the other or myself as other, in a unique situation, with rule, norm, value or the imperative of justice which necessarily have a general form, even if this generality prescribes a singular application in each case? [12]
Levinas asks a similar question in Otherwise than Being, which appeared 15 years prior to the publication of “Force of Law”, “What meaning can community take on in difference without reducing difference?”[13] How is it possible to have a common relationship with that which is most uncommon, the infinite alterity of the other with which no common bond is possible? How is rule of law and justice as law possible when the singularity of individuals demand a singular application of justice in each case, a singular idiom to address each singularity? Levinas claims that the possibility of justice begins with the deferral of singularities or the sublimation of incomparable others by a general common law. Justice is possible only through the shared representation of common law.
In comparison of the incomparable there would be the latent birth or representation, logos, consciousness, work, the neutral notion being…Out of representation is produced the order of justice moderating or measuring the substitution of me for the other, and giving the self over to calculus. Justice requires contemporaneousness of representation. It is thus that the neighbor becomes visible, and, looked at, presents himself, and there is also justice for me. The saying is fixed in the said, is written, becomes a book, law, and science.[14]
Law is therefore necessary for the possibility of justice.[15] In Levinas’ terms, justice is only possible through the submission of the self and the other, two irreconcilable singularities, to the neutrality of a third term. The introduction of the ‘third’ in both Totality and Infinity and Otherwise than Being represents the introduction of politics into works that are traditionally viewed as ethical or metaphysical. However, the politics of Levinas are not lost on Derrida, who adopts the Levinasian political framework in his discussion of law and justice.
To address oneself to the other in the language of the other is, it seems, the condition of all possible justice, but apparently in all rigor, it is not only impossible (since I cannot speak the language of the other except to the extent that I appropriate it and assimilate it according to the law of an implicit third) but even excluded by justice as law, inasmuch as justice as right seems to imply an element of universality, the appeal to a third party[16] who suspends the unilaterality or singularity of the idioms.[17]
Law, or the third, represents the suspension of the singular idioms inherent to a community of irreconcilable difference. The introduction of law into the relation to alterity announced as an incalculable responsibility for the other, acts as a recension of said responsibility, through the sublimation of the other via a neutral term. In mourning Levinas in Adieu, Derrida points to the contradiction inherent to Levinas’ account of justice as the third, between the suspension of the singularity of the other, and the incalculable responsibility to the other, the ethical demand.
Justice would begin with this perjury. (Or at least justice as law; even if justice remains transcendent or heterogeneous to law, these two concepts must not be dissociated: justice demands law, and law does not wait any more than does the illeity of the third in the face.) When Levinas says “justice,” we are also to hear “law,” it seems to me. Law would begin with such a perjury; it would betray ethical uprightness.[18]
The suspension of the singularity of the other “betrays” the ethical demand placed on the self to honor its infinite responsibility to the incalculable other. Therefore law, as calculability, is an injustice, a violence done to the other, denying the alterity of the other by submitting the community of difference to a common bond.
- Politics and Law as Ontological Violence
The remission of the singularity of the other through its submission to a common law acts as a form of legitimate tyranny. This neutralization of the other through a third term was the basis for Levinas’ initial critique of ontology in Totality and Infinity. Ontology represents the neutralization par excellence of the other.
This mode (ontology) of depriving the known being of its alterity can be accomplished only if it is aimed at through a third term, a neutral term, which itself is not a being; in it the shock of the encounter of the same with the other is deadened. This third term may appear as a concept or thought. The individual that exists abdicates into the general that is thought.[19]
Metaphysics does violence to the alterity of the other by causing the other to “abdicate” to the generality of ontology. “Violence is a way of acting on every being and every freedom by approaching it from an indirect angle.”[20] (FC 19) From very early on deconstruction has taken the violence intrinsic to ontology into account, especially in Derrida’s “Violence and Metaphysics.” Through an intensive reading of Totality and Infinity, Derrida examines this injustice intrinsic to ontology. Here in this very early work, Derrida is already bound to the questions of justice and politics. The deconstruction of ontology even lays claim to a sort of emancipatory politics by making common cause with the fight against totalitarianism and oppression, which are only possible through the violence of ontology.
Incapable of respecting the Being and meaning of the other, phenomenology and ontology would be philosophies of violence. Through them, the entire philosophical tradition, in its meaning and at bottom, would make common cause with oppression and with the totalitarianism of the same.[21]
The figure of Levinas in the heritage of political discourse with which deconstruction finds itself engaged holds a premiere place in this engagement. His critique of ontology lays the groundwork for Derrida’s later explicit confrontation with justice and law in “Force of Law”. Levinas, therefore, represents an initial deconstruction of the conceptual frameworks that Derrida finds himself repetitively drawn towards. The critique of ontology is through and through political.
All the classical concepts interrogated by Levinas are thus dragged toward the agora, summoned to justify themselves in an ethico-political language that they have not always sought- or believed that they sought- to speak, summoned to transpose themselves into this language by confessing their violent aims.[22]
This process of dragging “classical concepts towards the agora” mirrors the deconstructive critique, which, seeking the justification of its aims, interrogates the history of philosophy. This is especially true in Derrida’s occupation with law in “Force of Law.”
The introduction of the neutral third into the community of difference imposes a juridico-ontology that forces the calculation of the incalculable. This force repeats the violence of ontology.[23] The violence done to the other via ontology is implicit in law: exclusion, sublimation and negation all function within the letter of the law. The violence of law is especially apparent in the foundation of a political community, not only in the founding constitutions of the state (think of the exclusive right of the white male voter in the initial U.S. constitution, or the continued exclusion of all but white voters from the right to vote in the foundation of the Republic of South Africa in 1961[24]), but also in the decision which founds a community and which settles who counts as a member of the community. The distinction between the founding document of a political community and the decision that decides the community in question, is a fragile distinction. In some instances the decision is only possible via the founding document. As Derrida notes in his essay on the United States Declaration of Independence, “Declarations,” the political community only exists as such after the document pronounces the constitution of the community,
The signature invents the signer. The signer can only authorize him- or herself to sign once he or she has come to the end, if one can say this, of his or her own signature, in a sort of fabulous retroactivity.”[25]
Therefore the law constitutes the community. The constitution marks the decision.
The foundation of a community, or political entity, is an ontological violence. The neutralizations of ontology, the third terms Being, logos, etc, mirror the neutralizations of law, the third, which suspends the singularity of idioms in a community of difference. Nowhere is this thought of political ontology as violence more apparent than in the thought of Carl Schmitt. In The Concept of the Political ‘the political’ is defined as:
…The most intense and extreme antagonism, and every concrete antagonism becomes that much more political the closer it approaches the most extreme point, that of the friend enemy grouping.[26]
The friend/enemy grouping of Schmitt is a form of exclusion and ontological violence. The distinction is absolute opposition, aimed at the pure negation of an otherness which threatens the very existence of a people, who thereby seek identification in a political grouping. The community defines itself in opposition to the threatening alterity, thereby excluding the alterity of the other from the community; neutralizing alterity through political ontology or a common bond, or law. Schmitt quotes and shares certain affinities with the Hegel’s definition of the enemy.
‘The enemy is the ethical difference [die sittliche Differenz] (not in the sense of morality [nicht im moralischen Sinne], but in the perspective of ‘absolute life’ in the ‘eternal being of the people’), as the Foreigner to be negativized in his living totality (als ein zu negierendes Fremdes in seiner lebindigen Totalität)[27]
As in Schmitt, the enemy for Hegel is an other/ stranger which must be negated (“foreigner to be negativized”), so that a group of people can maintain their manner of existence. The stranger must be eliminated in his “living totality” because his very existence, his threatening alterity, calls into question the existence of a people.
However, the decision that binds the political community, which must distinguish friend and enemy amongst infinite singularities, each of which maintains an incalculable alterity, as Kierkegaard proclaims and as Derrida is wont to remind us, is unreasonable and without sufficient basis. “The decision is madness.” The decision is made in the “night of non-knowledge,” without a calculable ground to base which singularities actually share a common bond, and should belong together in community. Therefore the decision and the founding law of a community go hand in hand, each seeking the other’s justification for the implicit violence of the ontology they both institute simultaneously.
Since the origin of authority, the foundation or ground, the position of the law can’t by definition rest on anything but themselves, they are themselves a violence without ground.[28]
The foundation of the political community is self-authorizing. The appellation of law justifies the violence and force inherent to the juridical realm. With law, the singularity of idiom is vanquished, thereby the other is denied a voice. Even if the law is signified as unjust in the silenced idiom, law still holds forth itself as justice, authorized and right.
…law is always an authorized force, a force that justifies itself or is justified in applying itself, even if this justification may be judged from elsewhere to be unjust or unjustifiable.[29] (FL 925)
The decision which marks out a political community and the laws which legitimate the decision and function as guard fences which surround the political community, excluding the alterity of the enemy or the political other, are legal fictions, which create the community, as it is, “out of thin air.” These legal fictions take many forms, and operate on various registers. In The Politics of Friendship Derrida examines the ontologies upon which communities are traditionally based, wherein he argues that the most common “common bond” which binds a community is a familial bond, based on the presupposition of blood relations. However, even here, where what is most familiar is traditionally thought of as the most obvious, the decision of familial affliliation occurs in darkness, without a truly stable ground on which to base the presupposition of family.
- Legal Fictions: The conflation of phusis and nomos
Derrida begins Chapter 6 of The Politics of Friendship “Oath, Conjuration, Fraternization or the ‘Armed’ Question” with a quotation from Plato’s dialogue Lysis concerning what constitutes friendship (philia), which also generally constitutes the political community along the Schmittian friend/enemy distinction. “If, then, you two are friendly to each other, by some tie of nature (phúsei pe oikeioi) you belong to each other”[30] The tie of nature (phusis) and friendship (philia) has been the basis of countless political groupings throughout history. The most common political companion or friend is the consanguine brother, or ancestor. However, phusis is an ontological neutralization in the sense described above. The naturalist reduction of incomparable singularities to common phusis is a form of ontological violence, which is retroactively posited in the midnight of decision. Derrida addresses the problem of the ontological reduction of friendship in the opening pages of The Politics of Friendship where he examines the problem of submitting friendship to a question of “what is the friend” as opposed to “who” is the friend. “Who” here represents the incalculable singularity, whereas “what” represents an ontological reduction of the singularity to a calculable entity.
This implicit subjection of the who to the what will call for question on our part- in turn or in appeal. The question will bring with it a protestation: in the name of the friend or in the name of the name. If this protestation takes on a political aspect, it will perhaps be less properly political that it would appear. It will signify, rather, the principle of a possible resistance to the reduction of the political, even the ethical, to the ontophenomenological.[31]
Derrida seeks to dismantle the dependence of nomos, law, justice and politics on the natural ties to which these terms are traditionally bound. This project is implicit in the deconstructive engagement with politics, law and justice in “Force of Law”[32] and is also a continuation of the framework espoused in Levinas and “Violence and Metaphysics.”
The question of birth, fraternization and the family, the conjunction of nomos and phusis, has haunted the political realm since Ancient Greece. In Aristotle’s Politics the family is the fundamental constituent of the state, and every state since has had been constituted on the basis of familial ties.
The concept of politics rarely announces itself without some sort of adherence of the State to the family, without what we call a schematic of fliliation: stock, genus or species, sex, blood, birth, nature, nation-autochthonal or not, tellurian or not. This is once again the abyssal question of the phusis, the question of being, the question of what appears in birth, in opening up, in nuturing or growing, in producing by being produced.[33] (viii)
The conflation of law and fraternity, the ontological violence done to justice in the name of familial affiliation, is also responsible for some the most extreme forms of state sponsored racism and the ideology of racial purity in some of the worst nationalistic societies.
As in every racism, every ethnocentrism- more precisely, in every one of the nationalisms throughout history- a discourse on birth and nature, a phusis of genealogy…regulates, in the final analysis, the movement of each opposition: repulsion and attraction, disagreement and accord, war and peace, hatred and friendship. From within and without. This phusis comprises everything- language, law, politics, etc. [34]
The rhetoric which purports that “nature commands law,” and that therefore equality before the law is dependent upon natural necessity, can only justify itself, according to Derrida, “to the extent that the justification strictly speaking, nomological justification, is founded firmly on the physio-ontological ground of what is in nature, revealing itself in truth at birth…”[35] Derrida openly describes the connection of phusis and nomos as an ontological distinction. Therefore, as discussed above, the affiliation of nature and law, as an ontological determination, is a distinction and a coupling made without ground. The political community outlined by the distinction of fraternity or familial ties is also founded on a distinction without ground. It is again an irrational decision, with all of the connotations Kierkegaard supplies to the term. The community of incomparable singularities exists anterior to the distinction made amongst them along familial lines, therefore the law based on blood right is a retroactive foundation of the origin of the political community: a performative gesture made through an oath, not a necessary or a priori distinction.[36]
In a prolonged parenthetical in Chapter 4, Derrida examines the phantasmatic nature of the consanguine tie that has been so fundamental to politics. Derrida claims that the origin of familial ties is not available to intuition, not understood a priori, and like the problem of origin in general, must be construed after the fact, or presented in a performative gesture, which actually does violence to the singularity of the self, by binding it to an ontological distinction. The performative is enacted as an oath, and is therefore a matter of faith, not of necessity. The passage is worth quoting at length.
We insist on this condition, what we are calling here a phantasm, because a genealogical tie will never be simply real; its supposed reality never gives itself in any intuition, it is always posed, constructed, induced, it always implies a symbolic effect of discourse- a ‘legal fiction’, as Joyce puts it in Ulysses on the subject of paternity…All politics and all policies, all political discourses on ‘birth’, can only remain a belief; others: what can only tend towards an act of faith. Everything in political discourse that appeals to birth, to nature or to the nation- indeed, to nations or to the universal nation of human brotherhood- this entire familialism consists in a renaturalization of this ‘fiction’. What we are calling here ‘fraternization’, is what produces symbolically, conventionally, through authorized engagement, a determined politics, which, be it left- or right-wing, alleges a real fraternity or regulates spiritual fraternity, fraternity in the figurative sense, on the symbolic projection of a real or natural fraternity. Has anyone ever met a brother? A uterine or consanguine (distantly related) brother? In nature?[37]
The legitimate fiction which combines nomos and phusis as the basis for equality before the law, the political distinction of friendship and the exclusion of the enemy, is yet another midnight decision, based on performative instead of necessity.
In chapter 6, Derrida returns to the phantasmatic relationship to paternity, fraternity and consanguinity in a mini-parenthetical dialogue concerning the basis of the tie of phusis and nomos.
To find the brother, the unfindable brother who is never found in an experience of perception, should you not start from memory’s injunction, and thus from some oath? Do you not think, dear friend, that the brother is always a brother of alliance, a brother in law or an adoptive brother, a foster brother? [38](149)
The foundation of con-uterine origin, confraternity, and consanguinity mirrors the retroactive foundation of law, ontology and of the political distinction. The foundation of the origin is only possible through the retroactive violence of an onto-phenomenological distinction. Therefore, the conception of shared-blood as the basis of political community is a violent injustice.
- South Africa Under Apartheid
In “Force of Law” Derrida makes a passing comment concerning the ability of any given juridico-political ontology to do violence to national groups who are not represented by the presupposed national bonds which constitute a national entity.
As you know, in many countries, in the past and in the present, one founding violence of the law or of the imposition of state law has consisted in imposing a language (juridico-political ontology) on national or ethnic minorities regrouped by the state.[39]
The conflation of phusis and nomos heightens the possibility of marginalizing “national or ethnic minorities” within the political realm of a state. This is apparent in the racist nationalisms of the past century. However, more recently (and always contemporary until racism is utterly obliterated), the politics of fraternity and the nationalistic rhetoric of pure-blooded political communities have been center stage in the dismantling of the apartheid system in South Africa. The collusion of nature and law with racism expresses itself in the law of apartheid South Africa. As Xia Jisheng notes in her examination of the 1983 South African Constitution, an attempted revision of the extremely racist constitution of 1961 and the apartheid laws,
By observing the history of the constitutional development in more than seventy years in South Africa and the content of the current South African constitution, it is not difficult to find out that the constitution, as a fundamental state law, is an important weapon of racism. South Africa’s white regime consistently upholds and consolidates its racist rule by adopting and implementing constitutions.[40]
By basing participation in politics on a presupposed natural tie, race, the law echoed the racist ideology which promulgated the separation of white’s and blacks in South Africa, thereby becoming a tool of oppression and racism. According to Mark Sanders in “Remembering Apartheid,” “… what the ideology of race purity and the power that hid behind it really entailed was a foreclosure of the other, and thus of any historical possibility of another social formation…”[41] The naturalist ontology which conjoins phusis and nomos is a violence done to the other, the non-white South African, which thereby submits the other to an idiom which the other is not allowed to speak, because the possibility of the other speaking that idiom is denied within the idiom of the state, or law, itself.[42] In “Racism’s Last Word” Derrida calls apartheid a “quasi-ontological segregation. At every point like all racisms, it tends to pass segregation off as natural and as the very law of the origin.”[43] However, as has been shown, this law of the origin is not quasi-ontological, it is ontological violence through and through.
Ontological violence is a prerequisite for racism. Racism does not exist without language and a singular idiom, which denies or negates a predetermined otherness.
Such is the monstrosity of this political idiom. Surely, an idiom should never incline towards racism. It does, however, and this is not altogether fortuitous: there’s no racism without a language. The point is not that acts of racial violence are only words but rather that they have to have a word. Even though it offers the excuse of blood, color, birth- or, rather, because it uses this naturalist and sometimes creationist discourse- racism always betrays the perversion of a man, the “talking animal.” It institutes, declares, writes, inscribes, prescribes. A system of marks, it outlines space in order to assign forced residence or to close off borders. It does not discern, it discriminates. (292)
The political determinations of the phusis/nomos distinction lie at the heart of racism and the juridical applications of apartheid. However, the violence done to the other of South African society is not limited merely to the disenfranchised of society. The “so called white” population also suffers from the effects of ontological violence. Ontology does not only lay restrictions upon the other, but also upon the self, as other. This problem is highlighted in South Africa, where the true racial purity of the Afrikaner volk is in serious question.
Three centuries of living in a racially mixed society have, as the courts have repeatedly recognized, produced a country in which few persons can vouch for the racial purity of their ancestors more than several generation removed, and in which the children of a single family may come in a variety of hues.[44]
The impossibility of truly confirming the racial purity of any particular individual, means that a certain percentage of the Afrikaner volk[45] who are of mixed heritage, not only do violence to the other by identifying themselves as white, but also violence to the self, the alterity of the self which in this identification they thereby deny. In this case the tie to racial purity can only be a matter of faith or oath. This scenario is intensified in the case of coloured South Africans who had the opportunity to classify themselves as white, if they were able to fit into the descriptions of race provided by the Population Registration Act, (No. 30 of 1959).[46] By submitting themselves to the classification of ‘white,’ these “play-whites” were complicit with the ontological violence of the White South African State. The violence of racist political ontology never only effects the singularities which it excludes in its political determinations, but also those whom it accepts into its own community.
- Political Ontology as non-violent: “Is an aneconomic friendship possible?”
Is a community of difference possible? We return to the question of Levinas, “What meaning can community take on in difference without reducing difference?” How can a community be so constituted so as to avoid the possibility of ontological violence? Derrida has provided a few keys to unlocking this aporia. Political ontology must pay close attention to the exclusions which provide it with a stable identity. Tying the political distinction to natural bonds, here named fictions, soon leads to the racism of state nationalisms, and must be avoided at all cost. A respect for alterity and singularity is part of the ethical demand to which deconstruction is bound, therefore this respect must be inscribed within the law. The telos of all political ontology should be an open society, where the possibility of the question remains, and where the law is respectful of the force by which it is instituted and wary of the violence that it may cause. Finally, friendship must not take the form of exchange, or a relation to that which is most alike, what Derrida terms an aneconomic friendship, is telos of the political community, not emnity based on difference, and affiliation based on similarity.
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[1] “Even our law, it is said, has legitimate fictions on which it founds the truth of its justice,” quoted in Derrida, Jacques The Politics of Friendship trans. George Collins, Verso: 2006. (p. 939, hereafter PF)
[2] Ibid.
[3] Derrida, Jacques “Force of Law: The ‘Mystical Foundation of Authority’” Cardozo Law Review No. 11 1989-90. (pp. 953, hereafter “Force of Law”)
[4] Ibid.
[5] Ibid.
[6] Nietzsche: The origin of a thing and its eventual utility, its actual employment and place in a system of purposes, lie worlds apart; whatever exists, having somehow come into being, is again and again reinterpreted to new ends, taken over, transformed and redirected by some power superior to it; all events in the organic world are a subduing, a becoming master, and all subduing and becoming master involves a fresh interpretation, an adaptation through which any precious ‘meaning’ and ‘purpose’ are necessarily obscured or even obliterated…the entire history of a ‘thing’…can be a continuous sign-chain of ever new interpretations and adaptations. Nietzsche, Friedrich On the Genealogy of Morals and Ecce Homo trans. Walter Kaufmann. Vintage Books Edition 1989: (GM Part II, Section 12).
Heidegger: What has been handed down (through the history of philosophy) it (traditional ontology) hands over to obviousness; it bars access to those original “wellsprings” out of which the traditional categories and concepts were in part generally drawn. Heidegger, Martin Being and Time (BT 19 parentheses mine).
[7] “Force of Law” p.953.
[8] The English translator of the text, Mary Quaintance, translates “…responsibilite devant un heritage qui est en meme temps l’heritage d’un imperatif ou d’un faisceau d’injonctions.” As “…responsibility in face of a heritage that is at the same time the heritage of an imperative or of a sheaf of injunctions.” The use of “in face of” as opposed to ‘before’, the more fitting translation of ‘devant’, highlights the role of Levinas, and his use of the figure of the face, in the heritage of responsibility and justice with which deconstruction is engaged. Derrida’s use of levant also hearkens to one of his earlier texts “Levant la loi,” (“Before the Law”) another text which engages with the questions of law and justice.
[9] Ibid.
[10] Levinas, Emmanuel Otherwise than Being or Beyond Essence trans. Alphonso Lingis, Duquesne University Press: 1998. (pp. 10, hereafter OB)
[11] A work to which we will return within out discussion of Deconstruction’s relation to politics, law and justice.
[12] “Force of Law” p. 949.
[13] OB 154
[14] OB 158-59
[15] Whatever be the ways that lead to the superstructure of society, in justice the dissymmetry that holds me at odds with regard to the other will find again law, autonomy, equality. (OB 127)
[16] The translation here of tiers as third party is troublesome. The same translation of tiers occurs in the work of Levinas. The anthropomorphism of the word tiers into ‘third party’ belies particular assumptions upon the part of the translator. Tiers is a masculine noun, which does not necessarily refer to a person or ‘party’ (which has a certain character of subjectivity). Tiers is used twice in the passage above, and it is only in the second usage that the additional term ‘party’ is supplied to the term. My obsession with this particular term is dependent upon my understanding of Levinas’ use of tiers, which actually speaks against the notion that the term refers to a subject position, or an other ‘other.’ The third in Levinas may not even be a person at all, but a fundamental attribute of the ego and the self, the same, and the other together, i.e. community or law..
[17] “Force of Law” 949
[18] Derrida, Jacques Adieu “A Word of Welcome” p. 33
[19] Levinas, Emmanuel Totality and Infinity: An Essay on Exteriority trans. Alphonos Lingis, Duquesne University Press: 1969. (p. 42, hereafter TI) Also: For the things the work of ontology consists in apprehending the individual (which alone exists) not in its individuality but in its generality. The relation with the other is here accomplished only through a third term which I find in myself (TI 44) And: The relation with Being that is enacted as ontology consists in neutralizing the existent in order to comprehend or grasp it. (TI 45-6)
[20] Levinas, Emmanuel “Freedom and Command” from Collected Philosophical Papers
[21] Derrida, Jacques “Violence and Metaphysics” from Writing and Difference trans. Alan Bass, University of Chicago Press. (p.91, hereafter VM)
[22] VM 97
[23] The emergence of justice and law, the founding and justifying moment that institutes law implies a performative force, which is always an interpretive force: this time not in the sense of law in the service of force, its docile instrument, servile and thus exterior to the dominant power but rather in the sense of law that would maintain a more internal, more complex relation with what one calls force, power or violence. (“Force of Law” 941)
[24] Act No. 32 of 1961.
[25] Derrida, Jacques “Declarations” p. 10
[26] Schmitt, Carl The Concept of the Political trans. George Schwab (p. 29). Also quoted in PF p. 139.
[27] PF 140. The Schwab translation of this passage from Hegel does not do it justice.
[28] “Force of Law” p. 943
[29] “Force of Law” p. 925
[30] ‘Umeis ára eí philoei eston allélois, phúsei pê oikeioi esth’umin autois’ PF p. 138.
[31] PF p. 6
[32] A deconstructive interrogation that starts, as was the case here, by destabilizing or complicating the opposition between nomos and physis, between thesis and physis- that is to say, the opposition between law, convention, the institution on the one hand, and nature on the other, with all the oppositions that they condition; for example, and this is only an example, that between positive law and natural law… such a deconstructive line of questioning is through and through a problematization of law and justice. (FL)
[33] PF p. viii. Derrida continues: If no dialectic of the state ever breaks with what it supercedes and from which it arises (the life of the family and civil society), if politics never reduces within itself this adherence to familial generation, if any republican motto almost always associates fraternity with equality and freedom, as for democracy, it is rarely determined in the absence of confraternity or brotherhood.
[34] PF p. 91
[35] PF p. 99
[36] PF 100
[37] PF 92-3
[38] PF p.149. Also, later: …there has never been anything natural in the brother figure on whose features has so often been drawn the face of the friend, or the enemy, the brother, enemy…The relation to the brother engages from the start with the order of the oath, of credit, of belief and of faith. The brother is never a fact. (159)
[39] “Force of Law” p. 957 (parentheses mine)
[40] Jisheng, Xia “Evolution of South Africa's Racist Constitutions and the 1983 Constitution” Issue: A Journal of Opinion, Vol. 16, No. 1. (1987), pp. 18-23. (p.18)
[41] Sanders, Mark “Remembering Apartheid” Diacritics 32.3–4: 60–80 (p.41)
[42] The differnd of Lyotard occupies a similar position in regard to idiom: “I would like to call a differend the case where the plaintiff is divested of the means to argue and becomes for that reason a victim…A case of differend between two parties takes place when the “regulation” of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.” Lyotard, Jean-François The Differend: Phrases in Dispute trans. Georges Van Den Abeele, The University of Minnesota Press: 1988. (p. 9). The disenfranchised African who is not recognized as a member of the white South African state is thereby denied the means to representation as a victim under apartheid, because the law does not recognize apartheid as a crime, since apartheid is in-itself an effect of the laws of the state; therefore the crime “apartheid” is “not signified” as such in the idiom of the South African State. Furthermore, the ability to protest the law itself had been foreclosed by the declarations of the state concerning African representation under Apartheid.
Derrida also discusses this problem in “Force of Law”: It is unjust to judge someone who does not understand the language in which the law is inscribed or the judgment pronounced, etc. We could give multiple dramatic examples of violent situations in which a person or group of persons is judged in an idiom they do not understand very well or at all. And however slight or subtle the difference of competence in the mastery of the idiom is here, the violence of an injustice has begun when all the members of a community do not share the same idiom throughout. (“Force of Law” p. 951)
[43] Derrida, Jacques “Racism's Last Word” trans. Peggy Kamuf, Critical Inquiry, Vol. 12, No. 1, "Race," Writing, and Difference. (Autumn, 1985), pp. 290-299. (p, 292)
[44] Landis, Elizabeth S. “South African Apartheid Legislation I: Fundamental Structure” The Yale Law Journal, Vol. 71, No. 1. (Nov., 1961), pp. 1-52. (p. 6)
[45] I borrow this term from Mark Sander’s essay on Coetzee and the apartheid theorist Geoffrey Cronjé, “Undesirable Publications: J.M. COETZEE ON CENSORSHIP AND APARTHEID” Law and Literature; Spring 2006; 18, 1. At one point Sander’s uses the term ‘volk-being’ in relation to the racist ideology of Cronjé, which highlights the ontological nature of racism
[46] This scenario frames Zöe Wicomb’s novel Playing in the Light The New Press, 2005.
The Act contains the following definitions:
A white person is one who in appearance obviously is, or who is generally accepted as a white person, but does not include a person who, although in appearance obviously a white person, is generally accepted as a coloured person.
A "native" is a person who in fact is or is generally accepted as a member of any aboriginal race or tribe of Africa. . . .
A person who in appearance obviously is a member of an aboriginal race or tribe of Africa shall for the purposes of this Act be presumed to be a native unless it is proved that he is not in fact and is not generally accepted as such a member.
A colored person is a person "who is not a white person or a native
(Landis, p. 15)
