Deconstructive Practice and Legal Theory-- Part II

Copyright 1998 Jack M. Balkin. All Rights Reserved.

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C. Arguments that Undo Themselves

Deconstructive reversals show that the reasons given for privileging one side of an opposition over the other often turn out to be reasons for privileging the other side. The virtues of the first term are seen to be the virtues of the second; the vices of the second are revealed to be true of the first as well. This undoing of justifications for privileging is part of the deconstructionist aim of "ungrounding" preferred conceptions by showing that they cannot act as self-sufficient or self-explanatory grounds or foundations.

The most famous example of this "ungrounding" is Derrida's treatment of speech and writing in Of Grammatology.(33) Derrida finds in the texts of several writers, including Rousseau, Saussure, and Levi-Strauss, a consistent valuing of speech over writing as a form of communication.(34) Derrida argues that this preference is not accidental; it relates to the general "logocentric" bias of Western thought.(35) By "logocentric," Derrida means centered on the concept of logos, which he often equates with the idea of presence. Derrida believes that a privileging of speech over writing is a symptom of a more general bias in favor of presence as a foundational term in Western philosophical thought.(36) One might ask why speech is more "present" than writing, and why it is more highly valued. Derrida considers several plausible arguments to explain the privileging. First, writing is only a method of representing speech. It was invented as a means of recording what people said.(37) Writing consists of a series of signs that stand for spoken words. Thus, writing is only a substitute for speech, and an imperfect substitute at that. For example, written language often uses non-phonetic spellings. People who have encountered certain words in writing but not in speech often mispronounce them, and written language occasionally leads to corruptions and alterations in natural forms of speech.

Second, speech is connected more closely to the immediate thoughts of the communicator than is writing. When one hears a person talk, that person's intention is immediately communicated by her speech.(38) Our understanding is derived not only from words, but also from inflections and tone of voice. Sarcasm, enthusiasm, and a hundred other nuances are immediately apparent when we listen to a person; they are less discernible when the text of a speech has been transcribed.(39) Thus, the preference for speech over writing is a privileging of presence: The immediacy of meaning in speech is privileged over the mediation of thought that occurs in writing.(40) Speech is immediate, unambiguous, and sincere; writing is distant, ambiguous, and potentially misleading.(41)

There are additional connections between speech and presence. Normally, a speaker is physically present when she talks to you; in contrast, you may be reading the words written by a person who is far away and perhaps no longer even alive. A person who is speaking to you can be interrupted and asked to clarify what she means. The same cannot be done with the author of a text one is reading. The author is not present, and only the representations of her past thoughts remain on the page.

After identifying all of the characteristics that define writing, and after arguing how they make writing inferior to speech, one can deconstruct the opposition of speech to writing by showing how the arguments "undo themselves." One can demonstrate that each identified characteristic of writing is true of speech as well; in other words, speech is a kind of "writing" that suffers from the same inadequacies attributed to writing.

First, speech itself is only a sign of what is present in a person's mind; it too is only a signifier of thought. A person's true thoughts and real meanings must be mediated through the use of speech. Furthermore, speech can be as unclear and ambiguous as writing, as most persons who have attended a law school lecture can testify.

Second, for speech to function as a signifier, as a sign, speech must be iterable. lt must be possible to speak when one does not mean what one says. Speech also can be separated from the speaker and the moment of intention, in both space and time. One can listen to a politician speak over a radio or television, with no chance to stop the speaker and ask for clarification. One can play a recording of a speech by Martin Luther King over and over again; the sounds one hears are no longer connected to the thoughts of a living person. The emotional impact of recorded speech does not come from the presence of living thought in the speech, but only from its efficacy as a signifier of past thoughts, which have long ago faded away.

Derrida thus shows that speech, as a signifier of thought, shares all of the properties that we had associated with writing. Speech is merely a special case of a generalized idea of writing. This "arche-writing"(42) is the iterable representation of a signified by a signifier. Speech and writing (in the normal sense of the word) are both varieties of this more generalized form of "writing."

Derrida uses the word "writing" in this broader sense to stand for three basic properties of signification: (I) the substitution of the signifier for what it signifies; (2) the mediation of the experience of the signified by the signifier, and (3) the iterability of the signifier at different times and in different contexts.(43) "Writing," as used by Derrida, is a paleonym(44)--a word with an old meaning which has had a new meaning grafted on to it. "Writing" in Derrida's general sense recalls the reversal of the hierarchy of speech over writing from which the broader conception arises. Derrida's project, at least in its initial incarnation, was a call for a science of "writing," or a Grammatology, which would investigate and expose the hidden logocentric biases of Western thought.(45)

 

D. The Logic of the Supplement

Derrida also deconstructs the hierarchy of speech over writing through the "logic of the supplement." The term "supplement" comes from Rousseau, who describes writing as a "supplement" to speech.(46) Writing is a supplement to speech in that it represents speech. The "natural" condition of language is spoken; writing is merely added later:

[S]peech being natural or at least the natural expression of thought, . . . writing is added to it, is adjoined, as an image or representation. In that sense, it is not natural. It diverts the immediate presence of thought to speech into representation and the imagination. This recourse is not only "bizarre," but dangerous. It is the addition of a technique, a sort of artificial and artful ruse to make speech present when it is actually absent. It is a violence done to the natural destiny of the language ....(47)



However, the word "supplement" has many meanings. First, it can mean something added to an already complete or self-sufficient thing. For example, I teach out of the latest edition of a constitutional law casebook. The book is finished, complete in itself, but every year the publisher distributes a supplement adding cases decided by the Supreme Court after the date of the casebook's publication. However, the fact that the publisher provides a supplement to my casebook indicates that the casebook is incomplete as a teaching aid--it needs supplementation to make it complete. This is the second meaning of "supplement"--something added to something lacking in order to complete it, as one takes vitamin supplements to achieve a healthy diet.

If writing is a supplement to speech, in the sense that it is added to speech, it may well be dangerous. Writing may infect the naturalness of speech, alter speech, or even supplant it. Some people may begin to speak in the same stylized way in which they write. Writing may lead to mistakes in pronunciation. For example, uneducated French people occasionally pronounce the silent consonants in their language. As time passes, writing may become so important that all official acts are recorded, certain types of oral promises are no longer enforced, and storytellers and town criers are replaced by authors and journalists. Rousseau's life provides an example of the displacement of speech by writing. Rousseau, who exalted the naturalness of speech, was a writer by profession; he is now best remembered not for what he said, but for what he wrote.(48)

Yet, Derrida would argue, writing can only supplement speech in the first sense (representation of speech) if speech can be supplemented in the second sense (having a lack that could be fulfilled). By now we know what that lack is: Speech is not thought made present to the listener, but aural symbols that represent thoughts. Speech only appears to possess "presence," or a direct connection to the mind of the speaker because of the fortuity that people speak and think simultaneously. In reality, however, speech-as-thought is a sham; like writing, speech is a mediation of thought, a delaying through representation. It is for that reason that writing can supplement, or take the place of, speech.

Thus, we see a new meaning of the term "dangerous supplement." Writing is indeed a dangerous supplement, not because, as Rousseau feared, it might infect the purity of speech, but because the supplementary capacity of writing demonstrates that speech already possesses that which we dislike about writing. It is as if one met a lover's relatives and saw for the first time unpleasant qualities common to the whole family.

From this Derrida wants to make a larger claim: If we thought that speech was present and writing a mere representation of speech, we now see that speech, too, is only a mediation of something more present. Speech, like writing, is a supplement. (Note the crucial move in Derrida's argument: A signifier supplements that which it signifies.) But if speech is a supplement, that which it supplements must also be lacking, for otherwise speech could not represent it. That new thing must, in turn, be a supplement (signifies), which represents something further, and so on.The result is a chain of supplements, reaching towards an unmediated,complete, self-sufficient presence.(49) To speak the language of signs, the result is a chain of signifies, each pointing to the next, each reaching towards a pure, unmediated signified.(50)

But now comes the great irony of this logic. The Real Thing, Presence Itself, must, by definition, be something that could not be supplemented or represented by a sign, for it is self-sufficient, and could not serve as a signifies or supplement. The world as we know it is only a world of representations, and representations of representations, ad infinitum. Every signified is actually a signifies in disguise. Derrida describes the ultimate reconstruction of presence:

There is nothing outside of the text .... What we have tried to show by following the guiding line of the "dangerous supplement," is that in what one calls . . . real life . . . there has never been anything but writing; there have never been anything but supplements; substitutive significations which could only come forth in a chain of differential references.... [T]he absolute present, Nature, . . . ha[s] always already escaped, ha[s] never existed....(51)

"Writing" is all there is. This conclusion follows from Derrida's argument that a sign can only represent still another sign. Derrida's famous aphorism il n'y a pas de hors-texte (there is nothing outside of the text) is a metaphor which proclaims that all understanding is metaphorical.(52) The "text" of which Derrida speaks is not merely words, but life itself: "[O]ur very relation to 'reality'. . . functions like a text."(53)

Derrida's critique can be viewed as nihilistic because it appears to deny the existence of objective truth. On the other hand, Derrida's own arguments subtly rely on the notion of truth. The basic claim is that a signifies only imperfectly represents the thing it signifies. This is not a mistake of logic, or an oversight on Derrida's part. We speak in logocentric terms, so that our critique of logocentrism must rely on suspect categories of thought. This is the case with all reconstructions; each uses the conceptual apparatus of the very thing that it wishes to subvert.(54) 1rrida's seemingly nihilistic conclusion must be understood in the context of his method of reaching it. Derrida does not deny the existence of objective truth as much as he affirms the interpretative character of our attempts to comprehend truth. Our "truth"--the conceptual apparatus we create to explain the world to ourselves--is only a sign or metaphor for an endless succession of still other signs and metaphors, and we have forgotten that it is only that. Thus, the Real Truth seems always beyond our grasp, outside the dominant conceptual apparatus, because that apparatus is necessarily always incomplete and capable of further supplementation.

Our frustration in our attempts to experience the Real Thing, whether we call it "truth" or "presence," stems from the desire in Western philosophy to foundationalize. Here is the agenda of traditional Western philosophy: One can only seek truth if one discovers fundamental principles and builds upon them.(55) We should recognize this "agenda" by now as privileging. The act of privileging requires the privileged term to be foundational, complete, self-sufficient; however, it is none of these things. It is related to the non-privileged term in a system of mutual differentiation and dependence, or differance.

The privileged concept is incomplete; it is only a supplement, a signifier, a metaphor. For that reason, we are able to use it against itself, to deconstruct it. The act of privileging, of asserting that one of two mutually dependent concepts is really foundational, is like drinking from the springs of the mythical river Lethe, after which we forget our past. Once we have accepted the privileging, we forget that the foundational concept was only a metaphor, a supplement. Deconstruction awakes us from our dogmatic slumber, and reminds us that our "truth" is only an interpretation.



E. Deconstruction and Ideology

Although these issues seem metaphysical, we can translate Derrida's concerns into a legal setting.(56) Legal doctrines both reflect and regulate social life. The choice of protected rights and of enforcement technique reflect views, whether obvious or obscure, about social relations. Law tell a story about what people are and should be.(57)

To give an obvious example, laws that permit (or enforce) discrimination on the basis of race or sex tell a different story about people than laws that prohibit such discrimination. The principles of a social theory like Liberalism tell a story about human nature, which some accept and others criticize.(58) Even the seemingly most insignificant or neutral doctrines and rules, taken as a whole, have a story to tell, if we are willing to listen to them.(59)

We can think of a system of law as a community's attempt to realize human ends. This presupposes a description of the good and bad in human nature: what people want from their lives and what their limitations are. This description necessarily involves privileging of certain aspects of human nature over others. Later, we justify our system by claiming that it is the best, given the natural constraints of the human condition. For example, an advocate of laissez-faire might argue that, given the natural self-interestedness of people, unregulated market transactions are the best way to realize human goals. But the deconstructive critique reminds us that our social vision and system of laws are not based upon human nature as it really is, but rather upon an interpretation of human nature, a metaphor, a privileging. We do not experience the "presence" of human nature; we experience different versions of it in the stories we tell about what we are "really like." These stories are incomplete; they are metaphors and can be deconstructed. Too often we forget that our systems of law are based upon metaphor and interpretation; we mistake the dominant or privileged vision of people and society for real "present" human nature, as Rousseau confused speech with the presence of thought.

At that point, the metaphor becomes mistaken for what it describes. But latent within the metaphor is a countervision that can be located and brought to the surface through deconstruction. It exists within the privileged conception because the latter ultimately depends upon it in a relation of differance.

The argument of the laissez-faire advocate presupposes a vision of what is most important about people, and necessarily relegates other aspects of the human condition, such as altruism and community, to marginal status. We could deconstruct this vision of humanity by showing how economic individualism ultimately depends upon social cooperation and the sharing of values. We could show the incompleteness of this vision of human nature, its poverty in describing what people are like and the nature of their relations to each other. A part of humanity will always escape this vision because it is only a metaphor, a signifier. The vision suffers from a lack that needs to be supplemented, and the supplement is a countervision that has been relegated to the periphery. This supplement is indeed "dangerous," for it threatens to subvert the picture of human nature posed by the dominant conception.(60)

The deconstruction of legal concepts, or of the social vision that informs them, is not nihilistic. Deconstruction is not a call for us to forget about moral certainty, but to remember aspects of human life that were pushed into the background by the necessities of the dominant legal conception we call into question. Deconstruction is not a denial of the legitimacy of rules and principles; it is an affirmation of human possibilities that have been overlooked or forgotten in the privileging of particular legal ideas.

Any social theory must emphasize some human values over others. Such categorizing necessarily involves a privileging, which in turn can be deconstructed. But the goal of deconstruction is not the destruction of all possible social visions. By recalling the elements of human life relegated to the margin in a given social theory, deconstructive readings challenge us to remake the dominant conceptions of our society. We can choose to accept the challenge or not, but we will no longer cling to our social vision blindly. Nor can we assume that this vision is the "real essence" of human nature because that would be a claim to have experienced presence, an experience that Derrida denies that we can ever have.

As Robert Gordon has observed, people "build structures, then act as if (and genuinely come to believe that) the structures they have built are determined by history, human nature, economic law."(61) Deconstruction allows us to see that ideologies are signs or metaphors that describe social life. They are privileged conceptions of social reality; they are supplements, which can in turn be supplemented. Like Derrida's signs, they are not self-sufficient, but ultimately depend upon the very aspects of human life that they deny and from which they differentiate themselves. Every ideology suffers from an elementary lack: its dependence on what it denies, on what it is exalted over. This lack, this differance, is what we seize upon and exploit in a deconstructive reading.

We now see that the legal deconstructor deconstructs ideologies, which are manifested in particular legal doctrines. By challenging what is "given," deconstruction affirms the infinite possibilities of human existence. By contesting "necessity," deconstruction dissolves the ideological encrustations of our thought.



F. Deconstruction as a Critical Theory

One might object that a deconstructive reassessment of our legal and social institutions offers us no logical stopping point. If the results of a deconstructive reading can themselves be deconstructed, deconstruction threatens to become an endless series of reversals and counter-reversals. Once again, nihilism seems an unavoidable consequence.

To answer this charge, I would like to compare deconstructive practice (or at least my interpretation of it) to psychoanalysis. Such an analogy is not at all farfetched. The psychoanalyst engages in a process similar in many ways to deconstruction. The psychoanalyst reverses the privileging of the conscious over the unconscious as the explanation of human behavior.'(62) The psychoanalyst also performs a deconstructive reversal by focusing on seemingly marginal or unimportant elements of the patient's experience, such as everyday events, free associations of ideas, and dream material, to understand the deeper connections that are the key to unconscious motivation."(63)

Furthermore, both deconstruction and psychoanalysis offer critical theories.(64) A critical theory may be distinguished by three characteristics. First, the goal of a critical theory is not to develop a series of true factual propositions, but to achieve enlightenment and emancipation.(65) Second, a critical theory is self-referential; it may be applied to itself or to the process of its application.(66) Third, a critical theory is confirmed not by a process of experimentation and empirical verification, but through a more complicated process of self-reflection. The critical theorist determines whether she has achieved enlightenment and emancipation in terms of knowledge and beliefs she has developed in the course of applying the critical theory.(67) Psychoanalysis possesses all of the characteristics of a critical theory. Its goal is emancipation of the patient from unfulfilling behavior patterns caused by unconscious repressed material.(68) This emancipation is achieved by a process of progressive enlightenment: The patient learns how her behavior patterns have been caused by unconscious forces and this, in turn, alters her behavior.(69) Psychoanalysis is potentially self-referential because the process of analysis itself can be understood and criticized in terms of hidden motivations and desires of the analyst.(70) Finally, the success of analysis often can only be judged through a process of self-reflection by the patient, aided by the therapist.(71)

Like psychoanalysis, deconstructive readings of texts offer the possibility of emancipation from customary ways of thinking. Deconstruction operates by a momentary reversal of privileging. This reversal alters our view of the privileging, just as the act of uncovering repressed material liberates the psychoanalytic patient.

As a critical theory, deconstruction can also be a self-referential activity because it can be performed on previous deconstructive readings indefinitely. It is this very property that leads to the charge of nihilism. However, the analogy to psychoanalysis shows us why this charge is ill-founded. We do not think that psychoanalysis is futile because a patient can be psychoanalyzed indefinitely or because the act of psychoanalysis can itself be investigated psychoanalytically. Rather, we believe that the psychoanalyst is performing a meaningful function even though her own work is potentially subject to further psychoanalysis. More importantly, the psychoanalyst and patient may properly decide that the patient has progressed sufficiently to end analysis. Similarly, deconstruction need not continue indefinitely if it has achieved the goals of emancipation and enlightenment.

On the other hand, how is one to tell when these goals have been achieved? There is no foolproof answer to this question for deconstruction, but the same may be said for psychoanalysis. There is simply no mechanical method for the analyst and patient to identify when analysis should end. The decision is an act of self-reflection on the part of both that the patient has been sufficiently enlightened and emancipated from the burdens of repressed material.(72) Of course, this decision may be questioned on the grounds that it is subjective, that one person's "enlightenment" may be another's neurosis. However, the analyst and patient are entitled to employ a personal judgment based upon a vision of normalcy and good mental health developed in the course of the analysis.(73)

In the same fashion, the deconstructionist must engage in a process of self-reflection to determine when the insights provided by deconstruction have produced sufficient enlightenment with respect to a view of law, legal doctrine, or human society previously accepted as privileged, natural, or complete. This decision is, of course, a political and moral choice, but it is one informed by insights gained through the activity of deconstruction itself. At the moment the choice is made, the critical theorist is, strictly speaking, no longer a deconstructionist. However, the purposes of engaging in the deconstruction have been served. In both psychoanalysis and deconstruction, the justification of when one should cease analysis may appear self-supporting, and so it is. But such justification is a characteristic of any critical theory.(74)

 

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Footnotes

 

33. OF GRAMMATOLOGY, supra note 1, at 34-43, 166-67.

34. Id. at 29-44 (discussing Saussure); id. at 101-268 (discussing Levi-Strauss and Rousseau)

35. Id. at 3; see infra text accompanying notes 53-55.

36. Derrida also speaks of "phonocentrism," or the privileging , of voice See, e.g., OF GRAMMATOLOGY, supra note 1, at 11-12. Phonocentrism normally appears in discussions of the privileging of speech over writing.

37. Speech is prior to writing both culturally and historically. J. GREENBERG, ANTHROPOLOGICAL LINGUISTICS 22-23 (1968). Spoken language arrives in a culture before written language, and to this day there are primitive cultures that have no written language. Id at 22; see also S MULLER, THE WORLDS LIVING LANGUAGES 107, 119 (1964) (most languages in Africa, Indonesia, and New Guinea still unwritten). Thus, speech is a prior, and therefore more fundamental, development in the creation of cultures and civilizations than writing.

38. Derrida argues that the direct temporal connection between speech and thought leads us to this conclusion. He points out that in French, the expression s'entendre parler means both to hear oneself and to understand oneself. OF GRAMMATOLOGY, supra note I, at 98.

39. An old joke illustrates this point.

A man walks past a laundry which bears a sign reading: "My name is Fink /and what do you think /I'll do your wash for free." Thinking he has spotted a bargain, the man takes his laundry there. The next day, when he returns to pick up his laundry, the proprietor, Mr. Fink, asks for a payment of five dollars. "Five dollars?" asks the man. "What about your sign?" "Can't you read?" replies Fink. "The sign says: "'My name is Fink, and what do you think, I'll do your wash for free?' " The joke seems to demonstrate the capacity of writing to mislead and the superior expressive abilities of speech. However, this joke also undermines the very point that the phonocentrist (the privileger of speech) wants to make, because it was possible, in writing, to express inflection and avoid misunderstanding by using the correct punctuation. Indeed, were it otherwise, no one would understand the joke in its written form. Conversely, if Mr. Fink had spoken his lines in a monotone, he still might have been misunderstood.

40. Indeed, many people prefer to receive information from a lecture rather than by reading because they find it easier to comprehend and assimilate meaning from what a person is saying than from what she has written. The belief that speech is a privileged way of understanding the "true meaning" of communication is connected to Derrida's notion of logocentrism, or the privileging of presence.

41. Barbara Johnson sums up the privileging of speech over writing:

The spoken word is given a higher value because the speaker and listener are both present to the utterance simultaneously. There is no temporal or spatial distance between speaker, speech, and listener, since the speaker hears himself speak at the same moment the listener does. This immediacy seems to guarantee the notion that in the spoken word we know what we mean, mean what we say, say what we mean, and know what we have said. Johnson supra note 1, at viii.

42. See Of GRAMMATOLOGY, supra NOTE AT 56-57.

43. see id. at 44-45, 55-57; H. STATEN, supra note 1, at 60-61, 121; Limited Inc abc, supra note 1, at 189-90.

44. See supra note 18.

45. See Semiology and Grammatology, supra note 22, at 35-36

46. See OF GRAMMATOLOCY, supra note 1, at 144. Similarly, Rousseau speaks or culture as a supplement to nature and masturbation as a supplement to normal sexual relations. The latter supplement Rousseau refers to as a "dangerous supplement," a phrase Derrida seizes upon as characteristic of all supplementation. see infra text accompanying note, 47-48.

47. OF GRAMMATOLOGY, supra note 1, at 144.

48. Writing may be dangerous in still another way. Derrida argues that both Rousseau and Levi Strauss identified speech with nature and writing with culture. The invention of writing and its introduction to primitive peoples brought a moral and spiritual decline that is closely associated with the corrupting influence of culture upon nature. See id. at 101-40.

49. CF.id.at 152-57 (describing chain of supplements involved in Rousseau's love object)

50. Id. at 49-50

51. Id. at 158-59

52. Id. at 158.

53. Johnson, supra note 1, at xiv.

54. Derrida demonstrates the Precarious position of the deconstructionist by placing certain concepts sous rature (under erasure ). For example, he uses the word "is" with a line through it to show that the word is logocentrically biased ("being" is the ultimate expression of presence) yet necessary for expansion. OF GRAMMATOLOGY, supra note 1, at 19.

It should now become clear why explanations of reconstruction necessarily involve a modification of it. My attempt at explanation is a logocentric project. I seek to present the foundations of Derrida's thought in clear, easily comprehensible, logical progression, beginning with simple ideas and then working to more complicated results. Obvious, there is something paradoxical about using logocentric methods to develop a critique of logocentrism. However,to argue that a logocentric presentation of deconstruction is suspect because it misstates the "true" content of Derridean thought is simply to engage in another logocentric move, that is, that there is privileged reading of Derrida, a true unmediated presence, of which all interpretation are inferior copies.

55. OF GRAMMATOLOCY, supra note 1, at 97 (history of metaphysics is history of logocentrism); J. CULLER, supra note 1, at 92-93 (logocentric practice in Western philosophy moves from fundamental ideas to elaboration of ideas); Limited Inc abc, supra note 1, at 236 (single recurrent gesture in Western metaphysics is move from good, positive, pure, simple, and essential to evil, negative, impure, complex, and accidental).

56. Note that I am presenting my interpretation of Derrida, which is my own "dangerous supplement" to his work and my own metaphor.

57. Clare Dalton uses this metaphor in her deconstruction of contract doctrine. Dalton, supra note 2, at 999.

58. For example, it is often asserted that Liberalism's emphasis upon individual autonomy ignores other aspects of human nature, such as the need for communal sharing of values. The vision of human personality and responsibility that Liberalism poses is disputed both by the right and the left. Libertarians argue that Liberals violate principles of self-determination and autonomy by asking people to contribute to a common good, while Marxists argue that Liberal capitalism hides the real nature of relations between worker and capitalist under a veneer of free exchange. Of course, one also can criticize each of these alternatives to Liberalism as portraying a fundamentally false picture of human nature.

59. In her deconstruction, Dalton argues that the ideology of contract law, which privileges the view of contracts as the "neutral facilitator of private volition," and is "concerned at the periphery with the imposition of social duties," Dalton, supra note 2, at 1014, is also present in the doctrines of implied contracts, parol evidence, and consideration. Id. at 1014-24,1048-52, 1066-95. She concludes that although these doctrines in contract law may seem less overtly political in nature than others, such as duress and unconscionability, the same tensions are at work: "[In]contract doctrine . . . a comparatively few mediating devices are constantly deployed to displace and defer the otherwise inevitable revelation that public cannot be separated from private, or form from substance, or objective manifestation from subjective intent." Id at 1113.

60. See supra notes 46-48 and accompanying text (discussing danger in supplementation). The deconstruction of the philosophy of economic individualism is a favorite topic of the Critical Legal Studies movement. For a classic discussion of the differance between individualism and altruism, see Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976). Kennedy's famous statement of the "fundamental contradiction" of social life is a more general expression of differance. Kennedy, The Structure of Blackstone's Commentaries, 28 BUFFALO L. REV. 209, 211-13 (1979) ("[T]he goal of individual freedom is at the same time dependent on and incompatible with the communal coercive action that is necessary to achieve it.... [R]elations with others are both necessary to and incompatible with our freedom.").

61. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW 289 (D. Kairys ed. I 982).

62. Michels,The Basic Propositions of Psychoanalytic Theory, in INTRODUCING PSYCHOANALYTIC THEORY 12 (S. Gillman ed. 1982) (psychoanalysis reveres emphasis on outer world as determinant of human behavior and concerns itself with inner dispositions of individual).

63. See L. KOLB & H. BRODIE, MODERN CLINICAL PSYCHIATRY 750-55 (lOth ed. 1982); see also F. REDLICH & D. FREEDMAN, THE THEORY AND PRACTICE OF PSYCHIATRY 276 (1966) ("Free association [involves] full and unedited reponing of mental events, including seemingly trivial or obnoxious details.").

64. In this discussion of critical theory, I follow the idea~ developed in R. GEUSS, THE IDEA OF A CRITICAL THEORY 55-95 ( 1 98 1 )

65. Id. at 55.

66. This distinguishes critical theories from other types of theories. For example, Newton's theory about panicles in motion is not itself a panicle in motion, and therefore, does not refer to or explain itself. Id. By contrast, Marxism as a social theory is potentially self-referential. Id at 56. It tries to explain not only the connections between a person's beliefs and her relation to various economic classes in society, but also why a Marxist holds the belief that she does.

67. Id at 55-56, 85-86.

68. L. KOLB & H. BRODIE, supra note 63, at 748-49.

69. Id at 749, 755.

70. For example, psychoanalytic psychotherapy applies the techniques of analysis to the analyst herself when it addresses mistakes and failures in therapy due to countertransference:

[C]ountransference reactions arise in the therapist as a result of the patient's influence on the physician's unconscious feelings and have their origin in the latter's irrational projections and identifications. The therapist must not permit his own unconscious feelings and attitudes,aroused during phases of treatment, to intrude in his relations with the patient.

Id at 752; see also S LORAND, TECHNIQUE OF PSYCHOANALYTIC THERAPY 209-22 (1946) (discussing countenransference); Peters, Transference, in INTRODUCING PSYCHOANALYTIC THEORY, supra note 62, at 99-101 (same).

71. See M. BASCH, DOING PSYCHOTHERAPY 36--37, 52, 178 (1980).

72. Id.

73. Cf; F. REDLICH & D. FREEDMAN. supra note 63. at 277

("Analysis is essentially an educational process. . . After a successful analysis, the patient will take with him the ability to introspect . . . with candor and to apply such insight, . . . to life problems.").

74. See R. GEUSS, supra note 64, al 85-88. Compare Unger, The Critical Legal Studies Movement, 96 HARV. L. REV. 561, 580 (1983) ("Legal doctrine rightly understood and practiced is the conduct of internal development through legal materials.") with J. RAWLS, A THEORY OF JUSTICE 48-51 (1971) (sense of justice comes from matching initial convictions with proposed reconceptions in attempt to achieve reflective equilibrium). Note that the establishment of a "reflective equilibrium" creates a new privileging. The defense of the new privileging is a constructive, and not a deconstructive, activity.

 

 

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