Transcendental Deconstruction, Transcendent Justice-- Part I

Originally Published in 92 Mich. L. Rev. 1131 (1994).
Copyright 1999 Jack M. Balkin. All Rights Reserved.

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Transcendental Deconstruction,

Transcendent Justice

 



Introduction

 

A meaningful encounter between two parties does not change only the weaker or the stronger party, but both at once. We should expect the same from any encounter between deconstruction and justice. It might be tempting for advocates of deconstruction to hope that deconstruction would offer new insights into problems of justice, or, more boldly, to assert that "the question of justice" can never be the same after the assimilation of deconstructive insights. But, as a deconstructionist myself, I am naturally skeptical of all such blanket pronouncements, even - or perhaps especially - pronouncements about the necessary utility and goodness of deconstructive practice. Instead, in true deconstructive fashion, I would rather examine how deconstructionists' claims of what they are doing - which are often refused the name of "theory" or "method" -are uncannily altered by their encounter with questions of justice. In fact, as I hope to show, when deconstruction focuses on specific and concrete questions of justice, we will discover that deconstruction has always been something quite different from what most people thought it to be.

When I first began to write about deconstruction and law, I faced the task of translating deconstructive arguments in philosophy and literature to the concerns of law and justice. In the process, I proposed an understanding of deconstruction that enabled it to be employed in a critical theory of law. I fully recognized then that, in translating the insights of deconstructionists to the study of law, I was also working a transformation - for to translate is to iterate, and iterability alters. (1) Not surprisingly, I was subsequently accused of misunderstanding both Derrida and deconstruction, and of emphasizing a logocentric version of deconstruction that misinterpreted Derrida's texts and subverted and undermined "true" or "proper" deconstruc tive practice. (2)

 

There is a certain irony to this accusation - the subversion of a putatively "orthodox" or properly performed deconstruction by a closet logocentrist. Yet it must be true, mustn't it, that there is a better and a worse way to engage in deconstructive argument? After all, deconstructive arguments are studied in departments of philosophy and comparative literature, and tests are given, and Ph.D. theses written, and degrees awarded, on the basis of this assumption. Aren't these tests graded as better or worse, and aren't these theses subjected to examination and sent back for revisions? How could one make sense of what deconstructionists do if there were not a better and a worse way to understand and perform deconstructive arguments? Surely it cannot be the case that "everything goes," where the determination of what is or is not a better use or understanding of deconstruction is concerned.

 

Nevertheless, I shall short-circuit this deconstructive quandary, which is potentially interminable. I plead guilty to the charge. If one is to adapt deconstruction to the critical study of law, the practice of deconstruction must, in fact, be altered, changed, modified, and, I would even say, improved. Certain features of Derrida's texts, for example, must be emphasized and others deemphasized and regarded as mistaken. Only in this way can deconstructive argument be made a useful tool of critical analysis. Only in this way can it escape the many criticisms of nihilism that have been leveled at it.

 

How logocentric of me.

 

So, I freely confess, I am a traitor to deconstruction. Yet, as we know, "traitor" and "tradition" come from the same root: The traditionalist hands down, while the traitor hands over. In both cases there is a passing off, a changing. (Yet the ambiguities continue: one can pass off a baton, as in a relay race, or pass off counterfeit money or goods.) The traitor-traditionalist distinction, with all of its accompanying uncertainties, is surely one of the most interesting for a deconstructionist. (3) There is an important sense in which I am continuing in the tradition of deconstructive argument even as I am insufficiently deconstructive by the standards of a purportedly "pure," "orthodox," "properly performed" deconstruction. If every traditionalist is also, in some sense, a traitor to what she preserves in the name of tradition - by altering it, freezing it in time, sucking the life out of it, and substituting the dry husk of unthinking imitation - might not every traitor also be, in some sense yet to be determined, a traditionalist of the first order?

 

As a traitor, however, I have an even greater satisfaction. As time has passed, Derrida himself has followed my perfidy. He has left the ranks of his apostles and joined the ranks of the apostates. His encounter with justice has brought him to many of the same conclusions about the meaning and use of deconstruction I have offered. So perhaps I was following him all along, in following the direction in which he later followed me. Perhaps I agreed with him all along, in agreeing with that with which he would later agree. Who is the traitor, and who the traditionalist now?

 

A key deconstructive idea is that iterability, or the capacity to be repeated in new contexts, results in change. Nevertheless, in examining how repetition is linked to change, we must always keep in mind two possible explanations, two different paths of explanation. The first claims that what we understand later really is different from the original and is consequently an improvement or a falling away. The second claims that this repeated thing has really always been the same; the new context has merely altered our understanding of it, with a consequent improvement or falling away of that understanding. Often it is very difficult to tell which claim we are making. It is often unclear whether we are traditionalists, who preserve the old in new guises and new understandings, or betrayers, who offer only an altered, imperfect substitute. After all, everyone is familiar with sectarian disputes between competing groups of believers - whether religious, political, or academic - who offer competing interpretations concerning the common object of their belief, branding their opponents as traitors while describing themselves as keepers of the faith.

 

It is this type of perfidy (which is at the same time a form of faithfulness), this alteration of deconstruction (which is at the same time not an alteration) that I would like to discuss here.

 

Of course, a deconstructionist must have texts to work with, texts to make her argument with. I take as my texts three writings by Jacques Derrida. The first is a lecture he gave in 1989 at a conference at the Cardozo Law School on "Deconstruction and the Possibility of Justice." This talk was later published under the title Force of Law: "The Mystical Foundation of Authority". (4) In this address, he an swered critics who accused deconstruction of nihilism or (perhaps worse) political quietism and complete irrelevance to questions of justice. Derrida replied that, far from failing to address the question of justice, deconstruction had addressed little else. (5) As evidence he listed a series of recent articles he had written that, in his opinion, concerned questions of justice. (6)

 

Of course, from a deconstructionist's standpoint, what might be most interesting about this list are the articles that Derrida did not choose to mention. One might think that these articles were withheld because they were wholly irrelevant to questions of justice. After all, in several of the writings that Derrida does mention, it takes quite a stretch to see them as directly addressing the question of justice. (7) A fortiori, the articles not mentioned must be even more divorced from these issues. Yet no deconstructionist worth her salt would accept such an obvious attempt at marginalization so readily; it would be like waving a red flag in front of a bull. Let us look, then, at the discarded, irrelevant parts of the Derridean corpus. Among them we find two substantial pieces on the controversy surrounding Paul de Man's wartime journalism. (8)

The basic story surrounding this scandal is by now well known. (9) Paul de Man, Sterling Professor of Comparative Literature at Yale University, was a close friend of Jacques Derrida and one of the central figures in the development of literary deconstruction. He died in 1983, a beloved and respected teacher and scholar. In 1987, a young graduate student doing research for a thesis on de Man discovered articles de Man had written between 1940 and 1942 for the Belgian newspaper Le Soir. During the Nazi occupation of Belgium, Le Soir was seized by pro-German forces and used as a mouthpiece for pro-Nazi propaganda and antisemitic statements. (10) De Man wrote for Le Soir during that period. He was still in his early twenties. Some of his articles were exclusively literary, while others were in various degrees concerned with politics. Moreover, as Derrida himself puts it, the "massive, immediate, and dominant effect" of de Man's political articles conformed to the "official rhetoric ... of the occupation forces." (11) And one article in particular, The Jews in Contemporary Literature, (12) is overtly antisemitic.

The revelation of these writings created a furor in the academy over de Man's posthumous reputation, the relation of his past writings to his later academic work, and the possible relationship between de Man's wartime activities and the normative claims - or lack of normative claims - of deconstruction. Many silly and intemperate accusations were leveled on all sides of this dispute. In the midst of this controversy, Derrida wrote two substantial articles. In the first, The Sound of the Deep Sea Within a Shell: Paul de Man's War, (13) he defends his old friend - and deconstruction itself - from what he regards as unjust accusation, and he tries to place de Man's life and works in their proper perspective. In the second, Biodegradables: Six Literary Fragments, (14) he responds to six critics of the previous essay. Here he defends not only de Man and deconstruction, but also himself, from what he regards as unjust treatment and unfair criticism.

One can agree or disagree with Derrida's particular stance on these issues. Nevertheless, it is hard to argue that these articles do not raise, on every line of every page, issues of justice, responsibility, and fair treatment. Their major concerns are how one should judge de Man, deconstruction, and Derrida himself, and how various critics have fairly or unfairly treated them. The question of responsibility overhangs the entire discussion - responsibility for the Holocaust, responsibility for collaboration, responsibility for one's silence about collaboration, responsibility in reading the work of another person, and responsibility in judging another's life and works.

 

Posed in the often byzantine setting of academic disputes and academic reputations, these articles concern the most concrete questions of justice and raise the most impassioned prose from Derrida. Indeed, the second article borders on the polemical. They stand in marked contrast to the relatively abstract pronouncements on justice and re sponsibility Derrida offers in his Cardozo Law School address, Force of Law: The Mystical Foundation of Authority.

 

Thus, it is all the more puzzling that Derrida did not think to list these essays in his catalogue of examples of deconstruction's encounter with justice. Derrida could hardly have forgotten them, for they had only recently been published when he gave his address at Cardozo. Nor could he have expected that his audience would not know about them, for they were published in a well-known literary journal; indeed the first article had attracted considerable controversy and led to a symposium of critiques in which the second appeared as a response. (15) Nor can one object that these two articles do not discuss deconstruction or employ deconstructive techniques. In fact, both possess interesting and sustained discussions of deconstruction and its place in the academy, as well as many passages explicitly offering and rejecting possible connections between deconstruction and justice, or between deconstruction on the one hand and fascism or totalitarianism on the other.

 

Perhaps one might think that these articles are not worthy of mention precisely because they are so concerned with a particular event, and therefore lack universalizability. Yet, as Derrida himself reminds us in his Cardozo address, justice is always addressed to events and persons in all of their singularity. (16) What better way, one might think, to discover what Derrida really thinks about justice than to study his remarks concerning an issue about which he feels the most deeply, which gets him, as the saying goes, "where he lives"? We often witness people speaking abstractly, in high sounding phrases, about what is just and what is good. Yet, one might believe, we only see what they really think about these matters when they are faced with a concrete question of justice that truly affects them. So I read these three texts together - the abstract disposition on justice with the more concrete discussions of the de Man controversy. The first is sedate, the others brimming with anger and anguish. The relationship of deconstruction to justice lies somewhere in the conversation between them.

Of course, there is a sense, too, in which even the more abstract Cardozo Law School address, which nowhere explicitly mentions de Man, is motivated by and concerns the de Man controversy. For by the late 1980s this scandal had raised anew accusations that deconstruction was the easy refuge of nihilists or those without values or conscience, that a doctrine that found complications of meaning in all texts was tailor-made for collaborationists with evil, unscrupulous opportunists, or simply weak-willed souls unable to commit to a just course of action when faced with obstacles or uncertainties. Thus, when Derrida rose to address the audience at the Cardozo Law School in the fall of 1989 - which was also the fall of the 1980s - it was all the more important to establish that deconstruction was not, nor had it ever been, nihilistic, opposed to justice, or even (God forbid) unconcerned with justice, but that it was, quite the contrary, fully committed to the critique of injustice and the creation of a more just world. Deconstruction, Derrida hoped to convince his audience, could properly be used for beneficial purposes of social and cultural critique, and indeed, it was perhaps most correctly used for such purposes.

Yet, in rising to respond to these critics, just as he had previously responded to the critics of de Man, Derrida offered examples of deconstructive argument that were not wholly consistent with all of his previous deconstructive writings. They are, however, consistent with the practice of deconstruction that I have advocated. This is Derrida's perfidy, his betrayal of deconstruction. Yet it is a betrayal that I heartily endorse.

In these essays, Derrida offers four different statements of the possible connection between deconstruction and justice. First, deconstruction can call into question the boundaries that determine who is a proper subject of justice -that is, to whom justice is owed. Second, deconstruction demands "a responsibility without limits." (17) Third, deconstruction requires one to address the Other in the language of the Other. Fourth, deconstruction is opposed to all intellectual forms of totalitarianism, and hence, by analogy, to political totalitarianism as well.

Like Derrida, I am also concerned with deconstruction's possible relationship to justice. In this essay, I offer an extended critique of Derrida's views in order to make two basic points about the relationship between justice and deconstruction. First, Derrida offers deconstructive arguments that cut both ways: Although one can use deconstructive arguments to further what Derrida believes is just, one can also deconstruct in a different way to reach conclusions he would probably find very unjust. One can also question his careful choice of targets of deconstruction: One could just as easily have chosen different targets and, by deconstructing them, reach conclusions that he would find abhorrent. Thus, in each case, what makes Derrida's deconstructive argument an argument for justice is not its use of deconstruction, but the selection of the particular text or concept to deconstruct and the way in which the particular deconstructive argument is wielded. I shall argue that Derrida's encounter with justice really shows that deconstructive argument is a species of rhetoric, which can be used for different purposes depending upon the moral and political commitments of the deconstructor.

Second, and equally important, Derrida's use of deconstructive argument to critique existing arrangements as unjust presumes belief in an idea of justice that may be indeterminate but is not reducible to any conventional notion of justice. Derrida's arguments simply make no sense unless he is relying on a transcendent idea of justice, which human law only imperfectly articulates. Moreover, I shall argue, he admits this, albeit only tentatively and haltingly, in his more recent writings on deconstruction.

Derrida's resistance to such a recognition is altogether understandable. A postulation of transcendent human values brings us a long way from the philosophical conception Derrida offered in Of Grammatology. (18) There he argued against the very existence of a "transcendental signified" and made his famous statement that "there is nothing outside of the text." (19) Nevertheless, I believe that a transformation of deconstruction becomes inevitable when deconstructionists begin to confront real questions of justice and injustice. If deconstruction can have salutary effects for the study of legal theory, there are equally salutary effects that law can have for deconstruction. So, I argue, when we try to make sense of Derrida's arguments about law and justice and read them charitably to avoid confusing and self-contradictory interpretations, we arrive at an important variant of deconstructive practice, which relies on the existence of human values that transcend any given culture. For want of a better name, I shall call this type of deconstruction transcendental deconstruction. It is the form of deconstruction I have advocated in my own work.

A belief in transcendent values is often associated with the tradition of Platonism. However, the view I am concerned with is not the Platonism of the Republic. (20) It does not assert the existence of eternal and unchanging Ideas that exist in a Platonic Heaven. It does not postulate normative standards of determinate content. Rather, it is concerned with those indeterminate values or urges located in the human soul, which human beings articulate through positive morality and cultural conventions, and which nevertheless always escape this articulation.

Surprisingly enough, the origins of this nonplatonic transcendentalism also lie in Plato's work. Plato came to a similar view after he had written the Republic, in later dialogues like the Statesman, (21) Sophist, (22) and particularly the Laws. (23) he abandoned his earlier dreams of political perfection for a more democratic, skeptical vision. (24) By the time of the Laws, Plato realized that our idea of justice is inchoate and indeterminate. It is a mere skeleton; it must be fleshed out in the world of culture. For this reason, we must construct a conception of justice using our human values and intuitions. T.K. Seung has called this approach "platonic constructivism"; he argues that it is a substantial modification of the more familiar Platonism we recall from the Republic. (25)

But Seung's constructivism has a curious consequence: The articulation of our values in human culture, law, and convention makes these concrete articulations different from the inchoate values they articulate. It is this gap or discrepancy that deconstructive argument seizes upon as the basis for its critique. The essence of what I am calling transcendental deconstruction, then, is to note the interval between the human capacity for judgment and evaluation that inevitably and necessarily transcends the creations of culture, and the prescriptions and evaluations of that culture, which in turn articulate and exemplify human values like justice. It is in this sense that transcendental deconstruction depends, as Platonism itself does, on a conception of values that "go beyond" the positive norms of culture and convention. But these transcendent values do not come to us in a fully determinate form; they need culture to turn their inchoate sense into an articulated conception. And these transcendent values do not exist in an imaginary Platonic Heaven; they exist rather in the wellsprings of the human soul. The idea of values that "transcend" culture might suggest that when human beings evaluate they do so from a place outside culture. But it is difficult to make sense of this claim, because culture helps constitute us as individuals. Thus, standing outside of culture would be like standing outside of ourselves. We can only express our values through their articulations in culture. How, then, is it possible to speak of transcendent human values when the ways we express our values must always be immanent in culture? How can values be both immanent and transcendent?

To understand how values can be transcendent, we must recognize that value is properly a verb, not a noun. People do not "have" values as if they were objects that could be kept in their pockets. Rather, they possess an inexhaustible drive to evaluate - to name the beautiful and the ugly, the better and the worse. This feature of human evaluation is poorly captured by our standard metaphors of value. These are metaphors of determinate measurement: Values work like scales or rulers, and to evaluate is to measure. These metaphors have two important conceptual entailments: The first is that a value provides a fixed standard of measurement; the second is that there is a necessary separation between the value that measures and the thing measured. If a value is a standard of measure, it must be determinate just as a ruler is of a determinate length. Moreover, it must exist separately from the thing it measures. One cannot use a ruler to measure itself any more than one can use a balance to weigh itself. Hence, the metaphor of measurement leads us to assume that values can be transcendent only if they somehow exist as determinate standards apart from the culture that they measure. This leads to Plato's ontology, and, I submit, to Plato's error.

Instead we must consider a contrasting metaphor of value - that of an indeterminate urge or demand. Instead of viewing values as determinate standards of measurement, we should understand them as a sort of insatiable and inchoate drive to evaluate. Because they are inchoate they can never be made fully determinate; because they are insatiable they can never be fully satisfied. Our values are like an inexhaustible yearning for something that cannot clearly and fully be described; hence our values always demand more of us than we can ever satisfy, despite our best efforts.

Thus, we have two metaphorical accounts of value: one of determinate measurement, and one of indeterminate longing. Each is helpful in its own way, but neither can be usefully employed in all contexts and circumstances. To understand the phenomenon of transcendence we must recognize the metaphor of measurement as a metaphor, and exchange it for a different one.

The metaphor of value as an insatiable urge or demand offers a more plausible account of how our values are transcendent and why our articulations of them are imperfect. Under the metaphor of measurement, our institutions fail to be just because they are imperfect representations of a determinate standard of justice; this standard is transcendent because it exists separate and apart from culture. Thus, virtue is a matter of copying, and the virtuous person is a good copyist. Under the contrasting metaphor, values are inchoate yearnings that we attempt to articulate through our cultural constructions. To be just we must construct examples of justice using the indeterminate urge for justice as our goad rather than as our guide. This means that the virtuous person is not a good copyist but a good architect. She attempts to satisfy her sense of justice by constructing just institutions. Nevertheless, she responds to an indefinite and indeterminate value. This has two consequences. First, there will be many different ways of constructing a just institution, depending upon the situation in which she finds herself and the resources she has available to her. Second, her constructed example of justice will never exhaust the insatiable longings of human value. Thus, human cultural creations will always fail to be perfectly just, but not because they are defective copies of a determinate standard. Their imperfection arises from the necessary inadequation that must exist between an indeterminate and inexhaustible urge and any concrete and determinate articulation of justice. This relationship of inadequacy between culture and value is what we mean by "transcendence." The goal of transcendental deconstruction is to rediscover this transcendence where it has been forgotten.

Some people have thought that deconstruction is aimless; that it has no goal or purpose. Others have argued that at best its goal is the mindless destruction and annihilation of all conceptual distinctions. Neither charge applies to the form of deconstructive practice I advocate here. Transcendental deconstruction has a goal; its goal is not destruction but rectification. (26) The deconstructor critiques for the purpose of betterment; she seeks out unjust or inappropriate conceptual hierarchies in order to assert a better ordering. (27) Hence, her argument is always premised on the possibility of an alternative to existing norms that is not simply different, but also more just, even if the results of this deconstruction are imperfect and subject to further deconstruction. Such a deconstruction assumes that it is possible to speak meaningfully of the more or the less just; it decidedly rejects the claim that nothing is more just than anything else, or that all things are equally just. Rather than effacing the distinction between the just and unjust, it attempts to reveal the mistaken identification of justice with an inadequate articulation of justice in human culture and law.

If this analysis is sound, deconstructive argument becomes something quite different from what most of its critics (and even some of its adherents) have imagined. Now deconstructive argument is premised on the assumption of transcendent yet only imperfectly realizable values of justice and truth. The practice of deconstructive argument may be skeptical about the perfection of any and every particular example of justice, but it is decidedly not nihilistic. Indeed, it is a deconstruction founded on faith - faith in human values which, although only articulable through culture, surpass and hence act as a perpetual admonition to culture. This is the type of deconstructive practice I have advocated, and the one that makes the most sense when applied to law and political theory.

Jacques Derrida, I shall argue, has gradually come around to a similar view, although he would not perhaps use the term transcendental to describe it. Yet it is an inevitable consequence of the connections he now wishes to draw between deconstruction and justice. Moreover, he has begun to insist that something like this is what he always had in mind by deconstruction. (28) Is this an adequate description of his project or a specious substitution? Is this tradition or betrayal? That is for the reader to judge.

 

I. Deconstruction and the Subjects of Justice

 

The first connection between justice and deconstruction that Derrida hopes to demonstrate concerns the definition of who is a subject of justice, that is, who can be treated justly or unjustly. Throughout Western civilization, Derrida argues, the category of subjects of justice has been limited. (29) Deconstruction furthers justice, he insists, because it calls these limitations into question. (30) Derrida argues that Western civilization has traditionally considered justice and injustice to be concepts that apply only to persons, in particular to persons who possess the capability of language. (31) These are persons whom one can speak to - and hence reason with. "One would not speak of injustice or violence toward an animal, even less toward a vegetable or a stone." (32) For example, "an animal can be made to suffer, but we would never say, in a sense considered proper, that it is a wronged subject, the victim of a crime ... and this is true a fortiori, we think, for what we call vegetable or mineral or intermediate species like the sponge." (33) Indeed, Derrida continues, throughout human history "there have been, there still are many "subjects' among mankind who are not yet recognized as subjects and who receive this animal treatment ...." (34) To treat a person as an animal - that is, one who is incapable of being addressed in language - is to consider that person's treatment not to be a question of justice or injustice. This argument reminds one of Chief Justice Taney's famous assertion in Dred Scott v. Sandford (35) that blacks "had no rights which the white man was bound to respect." (36) Derrida even suggests that the primitive tradition of animal sacrifice confirmed and supported the notion of a separation between human subjects - who can speak and are the subjects and objects of just and unjust treatment - and "animals" who, by the logic of this opposition, are not capable of being treated unjustly. (37)

The boundaries of justice, in other words, are determined by the boundaries of who is "human" as opposed to who is merely an "animal" - that is, one without language or, alternatively, without a recognized right to speak. Yet these boundaries and the justifications for these boundaries can be deconstructed, even to the point, as some animal rights activists would maintain, of calling into question the exclusion of animal life from questions of justice. At this point the distinction between "human" and "animal" would no longer serve to distinguish subjects of justice from nonsubjects; we would have to invent a new distinction.

Thus, Derrida argues, the opposition "subject of justice" versus "nonsubject of justice" is unstable. Because of its instability, it may continually be questioned, and the criteria that separate the subjects of justice from those nonsubjects - earlier identified by the distinction between "humans" and "animals" - must continually be revised. Hence, Derrida wants to insist, deconstruction is relevant to justice because we can deconstruct the boundaries of who is considered a "person" or, more generally, a proper subject of justice. By challenging these boundaries, we can move from a world in which the conception of a subject of justice is wrongfully limited to one in which it receives a just expansion. (38) In this way, Derrida insists, the use of deconstruction might not lead to nihilism or injustice. Instead deconstruction would form part of a progressive project that sought increasingly to expand political rights to those other than white male European human beings by deconstructing the boundaries of who are and are not the proper subjects of justice. As he says, in a slightly different context, "nothing seems to me less outdated than the classical emancipatory ideal." (39)

These egalitarian sentiments are surely to be applauded. Yet Derrida has not shown a necessary connection between deconstruction and justice. He has merely pointed out that one might deconstruct certain oppositions in a way that produces increasingly egalitarian conclusions. He has not shown that these are the only oppositions one might deconstruct. Nor has he shown that one can only deconstruct these oppositions in a way that produces increasingly egalitarian results.

Derrida might have chosen to deconstruct or problematize the distinction between justice and injustice, between liberty and slavery, or between tolerance and bigotry. He does not do so. But nothing in deconstructive theory - if such a thing exists - directs him or forbids him from doing so. Deconstructive argument does not cease to operate when the conclusions one might draw from it are inegalitarian, although it is hardly surprising that Jacques Derrida sees egalitarian consequences flowing from his use of deconstruction. Indeed, this possibility is admitted by his very claim that deconstruction "does not necessarily lead to injustice ... but may ... lead to a reinterpretation" that is more just. (40) Derrida, like every good deconstructor, picks his targets carefully. Moreover, even given the targets of his deconstruction - the historically enforced oppositions between the subjects and nonsubjects of justice - Derrida has not shown that the only way in which these oppositions might be deconstructed leads to increasingly just results. If deconstruction calls into question the boundaries of subjects of justice, it does not follow that the only way to question these boundaries is to advocate their expansion. They may well be unstable, as Derrida insists. Yet their instability might be evidence that they are about to implode, rather than expand. Furthermore, even if there must be an expansion, one can expand the boundary in two opposite directions - by expanding the scope of what is assigned to the "human," who is a subject of justice, or by expanding the scope of what is assigned to the "nonhuman," which is not a proper subject of justice. In this way, the instability of these boundaries might well be used, as it has in the past, to show that blacks, or Asians, or women are not fully human beings, or that the distinction between women and animals, for example, is so unstable that it cannot fully be maintained.

Indeed, one can understand the history of bigotry as the continuous deconstruction of an imagined unity of humankind. It is the perpetual claim that the unity of humankind is a pious fiction, a papered-over discontinuity and heterogeneity, and that the Other within this imagined unity must be located and understood in all of its difference and inferiority. The egalitarian claims to rediscover the true similarity of the subjects of justice by reclaiming those who were wrongly grouped with nonsubjects; the bigot claims to rediscover the true similarity of nonsubjects of justice by rejecting those who were wrongly grouped with the subjects of justice. Both deconstruct boundaries and categories, and the act of deconstruction does not decide between them.

One might also use deconstruction to show that the boundaries of who may possess certain civil and political rights are unstable. Thus, early American feminists argued that the expansion of political rights to black males required the expansion of political rights to women. However, a similar criticism applies here. The claim that the current limitations of political rights - like the franchise or the right to life - are unstable and that the justifications for these boundaries are self-deconstructing may argue in favor of further restricting the scope of these rights rather than expanding them. If the extension of antidiscrimination laws to disabled persons cannot be squared with the denial of such rights to homosexuals, then perhaps this result counsels in the direction of shrinking the rights of the disabled rather than expanding the rights of homosexuals. The strongly egalitarian bias of the academy makes this an unthinkable position, but it is not made unthinkable by any feature of "deconstructive theory." It is made unthinkable by the preexisting moral commitments of those who make the deconstructive argument.

If one begins with an egalitarian ideology, one can easily be misled into thinking that the "emancipatory ideal" that Derrida endorses is the same as deconstruction. But this assumption is based on an implicit opposition or conceptual homology - namely, that deconstruction is to logocentrism as emancipation is to slavery, or as expansion of the subjects of justice is to contraction of the subjects of justice. Of course, one of the most important deconstructive techniques is the demonstration that the homology "A is to B as C is to D" is reversible; one deconstructs ideologies by subverting the conceptual homologies upon which they rest. My point is that this technique can be performed as easily with the present set of conceptual oppositions as with the opposition between speech and writing in Of Grammatology.

Furthermore, even if one accepted that deconstruction necessarily led to an increased domain of subjects of justice, Derrida's argument rests on the additional assumption that increasing the number of subjects of justice increases justice. But it does not. The second half of the nineteenth century saw two great expansions of the domain of subjects of justice in the United States. The first was the emancipation of the slaves and the bestowal of civil and political rights upon them through the Thirteenth, Fourteenth, and Fifteenth Amendments. The second came twenty years later in Santa Clara County v. Southern Pacific Railroad, (41) in which the U.S. Supreme Court held that corporations were persons for purposes of the civil and political rights guaranteed by the Fourteenth Amendment. In Derrida's terms, corporations too became subjects of justice, and indeed, through the same constitutional amendment that granted civil rights to blacks. The result of this decision was that corporations had contract and property rights against other individuals that the courts were constitutionally bound to enforce, and they did so with a vengeance during America's Gilded Age, with results that today make most economic egalitarians shudder. (42) The legacy of Santa Clara continues to this day: The Supreme Court has held that corporations as constitutional "persons" have First Amendment speech rights like those of private citizens. (43)

This holding seems unexceptional but for the fact that corporations usually have considerably more money and therefore can exercise their speech rights more effectively than the average citizen, through donations to political campaigns, purchase of time and space on broadcast and print media, and so on. The recognition and protection of corporate civil and political rights has enabled corporations to convert huge concentrations of property rights into concentrations of political power and thereby exercise considerable control over the American political process. Not surprisingly, some scholars on the left find these results to be perverse and to represent a net loss of individual liberty. (44)

In recent times, one of the most pressing questions before the American public has been the scope of the right to abortion. Antiabortion activists have been on the forefront of expanding the boundaries of personhood. One might almost believe that they were taking their cue from Derrida, for their arguments are nothing if not deconstructive: Effacing the distinction between fetus and child, they have argued that fetuses are "babies" and doctors who perform abortions are "baby killers." Insisting on the undecideability of any boundaries (such as viability) between the person and the nonperson, they have characterized the current law of the United States as the most violent act of mass murder since the Holocaust. If, as Derrida points out, justice and injustice have been reserved in Western culture to the possessors of language, and if this reservation is itself in need of destabilizing and deconstructing -in the case of animals, for example - the contemporary antiabortion advocate can hardly be faulted for seeing in this claim an argument for the protection of defenseless fetuses, who lack the power of speech and are routinely slaughtered by those who possess this power. Everything that Derrida says about the exclusion of animals from the domain of justice, they might argue, could be said on behalf of the human fetus: If a cat or a chimpanzee should be protected from torture or vivisection, how much more so should the human fetus who likewise lacks the power of speech, and who likewise is slaughtered for the benefit of those whom the state has already recognized as subjects of justice -women?

Needless to say, many women's groups and commentators on the left (including, one assumes - although one does not know this for certain - Derrida himself) would find such an argument abhorrent. But is the argument abhorrent because it is not deconstructive or rather because it is deconstructive - because nothing in "deconstruction" prevents such an argument? Is the reason that a feminist who employs deconstruction would not make such an argument because deconstruction forbids it or because it conflicts with her deeply held moral and political commitments - her sense of the just and the unjust? In other words, isn't she really using deconstructive argument to make sense of her existing commitments, to articulate her values?

In the examples of corporate speech, or the pros and cons of abortion, we witness what I call "ideological drift" at work. (45) An argument or principle that appears on its face to have determinate political consequences turns out to bear a very different political valence when it is inserted into new and unexpected contexts. Yet because, as deconstruction itself reminds us, one cannot fully control the contexts into which an argument or a claim can be inserted, one cannot fully control its political valence in future situations. The notion of ideological drift follows from the basic deconstructive point that iterability alters. We have merely applied this point to the practice of deconstructive argument itself. If the practices of deconstruction by human beings are themselves subject to the insights of deconstruction, this alteration seems inevitably to follow. The practice of deconstruction by human beings must also be subject to ideological drift. So is Derrida then hoisted on his own petard? If what is called "deconstruction" is a rhetorical practice, a series of arguments, a set of approaches that can be taught, repeated, iterated, used again and again in different contexts, places, and times, all this would seem to follow. Deconstruction, or more correctly deconstructive arguments made by human beings, must be iterable in ways that lead to both just and unjust results.

What, then, of this "if"? We are not prepared to answer this question. At least not yet.

 

II. A Responsibility Without Limits

 

A. The Infinite and the Indefinite

Let us continue. Derrida posits a second possible relation between deconstruction and justice - it is "the sense of a responsibility without limits." (46) This responsibility is "necessarily excessive, incalculable, before memory." (47) Deconstruction leads to justice because it reveals the limitlessness of our responsibility. Nevertheless, a responsibility without limits is not the same thing as justice. We do not necessarily increase justice by increasing responsibility. Suppose a plaintiff is injured in a traffic accident. The plaintiff picks a name at random from the phone directory and sues this person as a defendant. We do not necessarily increase justice by holding this person liable for the accident. Justice is increased by eliminating her responsibility.

Nor do we necessarily increase justice by increasing the responsibility of all persons. Suppose that a defendant strikes a plaintiff because the plaintiff is homosexual and the defendant hates homosexuals. We can justly hold the defendant responsible for this brutality. Suppose, however, that the defendant argues as follows: His parents are also responsible because they abused him as a child. The bystanders on the street are responsible because they did not intervene on the plaintiff's behalf. The police are responsible because they did not prevent the injury from occurring. The state's mental health agencies are responsible because they did not offer the defendant free counseling to deal with his aggression and his hatred of homosexuals, and so on.

The difficulty is that to increase the responsibility of one person is often to decrease the responsibility of another. Here the defendant attempts to decrease his responsibility by shifting it to third parties. There is no problem in increasing the responsibility of all persons as long as we insist that the defendant also remains fully responsible. Indeed, this may be a more adequate description of the situation. The difficulty arises anew, however, when we determine the appropriate remedy for an injustice. How are we to divide up the responsibility when the plaintiff demands compensation? The more persons who are held responsible, the less each will have to pay, all other things being equal. We might try to avoid this dilemma by allowing the plaintiff full recovery from each person held responsible, but surely this solution creates its own form of injustice. (48)

The demand for an increase of justice is not necessarily the demand for increased responsibility. It is rather the demand for an appropriate apportionment of responsibility. That is what "just" means - neither too much nor too little, but just the right amount of responsibility for each person. The very notion of apportionment implies the possibility that the responsibility of some persons will be decreased, if not eliminated. Justice involves the recognition that people are simply not responsible for some of the things for which others would like to hold them responsible. Furthermore, the demand for an appropriate apportionment of responsibility presupposes that there is a notion of appropriateness - that not every assertion of responsibility is as valid as any other. If the deconstructive argument is to make sense, it must assume that one's responsibility goes as far as it should, but no further, whether or not this can be known for certain.

In this light, Derrida's essays on Paul de Man offer a useful counterweight to his more abstract formulation. In these essays, Derrida does not assert that either he, or de Man, have limitless responsibility. Rather, he attempts to put de Man's responsibility in its proper perspective. He attempts to offer a just apportionment of responsibility, blame, and innocence regarding de Man, himself, and his critics.

First, Derrida argues, de Man is not responsible for all of the many evils of Nazism or for the Holocaust. To compare him to Mengele, as one writer did, is unjust. (49) Second, it is unjust to read de Man's later writings as an admission of guilt or responsibility - or as an attempt to deny responsibility - for what he did during World War II. (50) Third, although de Man wrote a series of articles expressing the ideology of the occupation forces and one article which is blatantly antisemitic, it is unjust to judge his whole life based on that one episode in his youth. (51) Fourth - and this is the most controversial point in his argument - Derrida suggests that de Man's articles are not as damning as one might be led to expect when they are read in the appropriate context. According to Derrida, the explicit antisemitism of the worst article is equivocal, and it is hardly as bad as many other articles in Le Soir. (52)

In the same way, Derrida responds to the critics who attacked his discussion of de Man by arguing that his responsibility and that of the institution they call "Deconstruction" is less than they imply or contend. They are unjust to Derrida, a Jew who was a teenager during the Second World War: "I ... who have nothing whatever to do with everything that happened; I who, at the time, was rather on the side of the victims." (53) They are unjust as well to the practitioners of deconstruction, "which at the time was at year minus twenty-five of its calendar!" (54)

These remarks suggest that Derrida cannot mean by "a responsibility without limits" a limitless responsibility. Otherwise, he, de Man, and indeed all of us are responsible without limits for the Holocaust and many other horrible crimes, both past and present. But this would not be just: The demand of justice is often the demand that we are not responsible, even though we have been unjustly accused.

Instead, we must offer an alternative account of "a responsibility without limits" that saves it from these difficulties. This account inevitably leads us to the transcendental conception of deconstruction. A limitless responsibility could be an infinite responsibility, or it could be a responsibility whose full contours cannot be defined in advance. This is the distinction between the infinite and the indefinite. We can say, both in the case of the infinite and the indefinite, that one cannot draw determinate and clear boundaries, so that in both cases we are, in a sense, "without limits." The meaning of "without limits," however, is different in each case. The infinite cannot be bounded because it is infinite. The indefinite has no clear boundaries because its scope is so heavily dependent on context, and not all possible future contexts can be prescribed in advance. The indefinite has boundaries, but we do not know precisely where they are. The infinite has no boundaries, and we know this for certain.

Thus, the indefinite is unlimited, but not in the way that the infinite is. It makes perfect sense to say that an individual's responsibility is "without limits" because it is always indefinite - that is, because the full contours of this responsibility can never be completely articulated - but it is nevertheless limited in another sense because it is not infinite. Paul de Man's responsibility for his wartime journalism is without limits because its scope cannot be fully demarcated: His actions will have had effects on individuals that he could not have foreseen. Moreover, his actions will continue to have effects about which modern day judges of his responsibility do not and cannot know. In this sense, Paul de Man indeed has a responsibility without limits. But it is not an infinite responsibility. He is not responsible for the Holocaust, or the Lockerbie plane bombing, or the French Revolution.

We can also apply the distinction between the infinite and the indefinite to the meanings of texts. People often associate deconstruction with the claim that the meaning of texts is indeterminate. Yet there are two ways to claim that meaning is indeterminate: One can say that a text's meaning is infinite - that is, that it means everything - or one can say that its meaning is indefinite. If the meaning of every text is infinite, then all texts mean the same thing, because all texts have every meaning. But if one says that the meaning of every text is indefinite, we mean that the contexts in which the text will take its meaning cannot be specified in advance, and therefore the text will always have an excess of meaning over that which we expect (or intend) it to have when it is let loose upon the world. The first view of texts is consistent with a nihilistic account of deconstruction; the second is consistent with the type of deconstruction I advocate.

The choice between these two approaches also corresponds to two different explanations of how one deconstructs a conceptual opposition. The strategy of the nihilistic view is one of total effacement - all conceptual distinctions are imaginary because the meanings of each side of the opposition are infinite. Therefore both sides mean the same thing. The strategy of transcendental deconstruction is one of nested opposition. A nested opposition is an opposition in which the two sides "contain" each other - that is, they possess a ground of commonality as well as difference. (55)

In this case, the deconstruction argues that the two sides are alike in some contexts and different in others; the logocentric mistake has been to assert categorically that they were simply identical or simply different. Because the two sides form a nested opposition, their similarity and their difference rely on context, but because context cannot be fully determined in advance, the scope of their similarity and difference is indefinite. In this way the transcendental conception of deconstruction preserves the possibility of conceptual distinctions, while the nihilistic version does not. (56)

The distinction between transcendental deconstruction and its unworkable alternative rests upon the distinction between the indefinite and the infinite. However, since one can deconstruct any distinction, one should also be able to deconstruct the distinction between the indefinite and the infinite. Even here, however, we need to ask what conception of deconstruction we should use to critique the theory - the transcendental or the nihilistic. If we use a nihilistic conception, we would be effacing this distinction. We would say that there is no difference between the indefinite and the infinite in any circumstance or situation. So, for example, we would be saying that everything with indefinite boundaries is infinite in extension. It would follow that each day is infinite in length because the boundary between day and night is indefinite. Thus, the use of nihilistic deconstruction leads to an untenable position, just as it leads to the destruction of many other useful distinctions. But this is a reason to think that the nihilistic conception of deconstruction is seriously flawed.

Instead, we might deconstruct the distinction between the indefinite and the infinite using the technique of transcendental deconstruction. To deconstruct a conceptual opposition is to show that the conceptual opposition is a nested opposition - in other words, that the two concepts bear relations of mutual dependence as well as mutual differentiation. (57) For example, we might discover that they have elements in common, which become salient in some contexts, but that in other contexts we note very important differences between them, so that they are not the same in all respects. In fact, we would note that the meaning of each depends in part on our ability to distinguish it from the other in some contexts.

Thus, transcendental deconstruction, which relies on the indefi niteness rather than the effacement of all conceptual boundaries, would insist that although we can offer relatively clear examples of bounded but indefinite concepts - for example, between day and night - we cannot demarcate in advance every example of the indefinite from every example of the infinite. Some of the things that we currently think are indefinite may turn out, in a different context of judgment, to be infinite and vice versa. We cannot know for sure because this distinction, like all others, is context dependent. Nevertheless, the very fact that this distinction is so heavily dependent upon context means that we cannot say that the distinction is meaningless, or that the terms collapse into each other. (58)

 

B. Deconstruction and Reconstruction

 

We have seen that, if Derrida's arguments about responsibility are to make sense, he must be committed to a transcendental conception of deconstruction, whether or not he specifically recognizes this fact. Moreover, the concept of an indefinite, rather than an infinite, responsibility better corresponds to the very important relationship of mutual differentiation and dependence that must always exist between law and justice. Laws apportion the comparative responsibility of parties. But laws can never perform this apportionment perfectly. They can never determine and assign completely the full responsibility of each and every person, living or dead, in exactly the right amount. First, laws must limit their concern to certain features of a situation and to certain effects that have already happened (or that can be proved in a court of law to have happened). Second, laws can extend their reach only to some parties, but not to all who might, in some larger sense, be responsible - for example, those who escape judgment because they are dead, out of the relevant jurisdiction, or bankrupt. Third, laws must speak in general terms that must be applied to many different factual contexts and therefore at best can fit each of these contexts like a mass-produced suit fits a body - perhaps well enough in some circumstances to be presentable, but certainly not perfect in all respects. Because responsibility is so deeply tied to context - both the contexts which have already emerged and those which in the fullness of time will emerge - human law must always, even in its best moments, be merely a heuristic, a catch-as-catch-can solution to the problem of responsibility rather than a fully adequate solution. Thus, to speak of the indefiniteness of human responsibility, and to speak of its failure to be fully measured, apportioned, and captured by human laws and human conventions, are really two ways of saying the same thing.

At the same time, our notion of justice can only be articulated and enforced through human laws and conventions. We may have an idea of justice that always escapes law and convention, but the only tools we have to express and enforce our idea are human laws and human conventions. In this sense our conception of the just relies for its articulation and enforcement on the imperfect law from which it must always be distinguished.

In sum, law is never perfectly just, but justice needs law to be articulated and enforced. This argument is exemplary of a transcendental approach to deconstruction, the only approach that can rescue deconstruction from the nihilistic abyss of infinite meaning. It assumes that human values like justice transcend the positive norms of human culture, even as they depend upon these norms for their articulation and expression. Human values like justice are always indeterminate; they must be constructed and articulated through culture, law, and convention. Yet any articulation of human value never fully exhausts the scope of human evaluation. We may offer a theory of what is just, and this theory may assist our judgments of what is just, but it does not ever fully displace our sense of justice. We always retain the ability to understand that our conventions, laws, and theories of justice fall short of our value of justice. Thus, our indeterminate values continue to demand more from us than our articulations of them can ever give; our urge to evaluate serves as a perpetual reminder of the gap between our values and their articulations in law or convention.

Equally important, my argument assumes that it makes sense to speak of the more just and the less just in a given context, even though our sense of justice is always indeterminate and indefinite. It denies that every conceptual articulation of justice is as good as any other, or that every solution to the problem of justice is as good as any other. If I claim that a human law only imperfectly captures the responsibility of individuals, I must assume that there is another accounting of responsibility that would be more just, even if I cannot describe a perfectly just solution. If I do not assume this, then my argument has no critical import. If there is no more just solution, then either the solution which I criticize is the best possible solution - in which case I have no reason to criticize it - or this solution is as good as any other solution I might offer as an alternative - in which case there is no reason to choose between them.

Thus, the transcendental conception of deconstruction is premised on the possibility of an alternative reconstruction that is superior to the given target of deconstruction. In this sense, deconstruction always depends on reconstruction, even though this reconstruction may be subject to further deconstructive critique. At the same time, theoretical (re)construction always depends on the tools of deconstruction. If we wish to construct a just account of moral or legal responsibility, we must be able to choose between competing alternatives and discard those that prove unsatisfactory. However, to critique the various possibilities, and discover their hidden incoherences, we need the critical tools of deconstruction. (59)

A deconstructionist, Derrida included, can hardly avoid this analysis. Does he accept it? In his later writings, he seems to move toward it. Deconstruction, he argues, demands that we "constantly ... maintain an interrogation of the origin, grounds and limits of our conceptual ... apparatus surrounding justice." (60) This demand does not "neutralize an interest in justice" but "on the contrary ... hyperbolically raises the stakes of exacting justice." (61) Deconstruction requires a "sensitivity to a sort of essential disproportion" between existing law or custom and justice. (62) The deconstructive attitude "strives to denounce not only theoretical limits but also concrete injustices, with the most palpable effects, in the good conscience that dogmatically stops before any inherited determination of justice." (63) Hence, Derrida connects the notion of limitless responsibility with deconstruction's "engagement" by an "infinite demand ... for justice." (64)

Yet the claim of an essential disproportion between law and justice simply restates the point that there is an idea or value of justice that transcends any specific example of justice, whether embodied in law, custom, or convention. Indeed, as Derrida later notes, "the deconstruction of all presumption of a determinant certitude of a present justice itself operates on the basis of an infinite "idea of justice.' " (65) This is perhaps the closest Derrida comes to the transcendental conception. He hesitates at this point because he does not wish "to assimilate too quickly this "idea of justice' to a regulative idea (in the Kantian sense), to a messianic promise or to other horizons of the same type." (66)

Nevertheless, Derrida's hesitation is unnecessary, for the deconstructive approach I advocate is not based on a fixed and determinate Idea of justice, but an indeterminate and indefinite human value. This value is the very sort of "demand" that Derrida identifies with justice: an insatiable urge that is never fully realized in the products of human law, culture, and convention.

 

Notes

 

* Charles Tilford McCormick Professor of Law, University of Texas. - Ed. My thanks to Guyora Binder, David Gray Carlson, Sandy Levinson, Jay Mootz, and Tom Seung for their comments on previous drafts of this essay.

1. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 Yale L.J. 743, 745 & n.8, 761 n.56 (1987) (comparing the account of legal deconstruction to a translation or alteration of it, and offering it as a dangerous supplement to Derridean deconstruction).

 

2. See Pierre Schlag, The Problem of the Subject, 69 Texas L. Rev. 1627, 1695 (1991) ("This is not Derrida, and it is not deconstruction."); see also Pierre Schlag, "Le Hors de Texte, C'est Moi": The Politics of Form and the Domestication of Deconstruction, 11 Cardozo L. Rev. 1631, 1641-42 (1990).

 

3. For a discussion, see J.M. Balkin, Tradition, Betrayal, and the Politics of Deconstruction, 11 Cardozo L. Rev. 1613, 1619-20 (1990).

 



4. Jacques Derrida, Force of Law: The "Mystical Foundation of Authority," 11 Cardozo L. Rev. 919 (1990) (Mary Quaintance trans.). A slightly different version of this essay appears in Deconstruction and the Possibility of Justice 3 (Drucilla Cornell et al. eds., 1992).

 

5. Derrida, supra note 4, at 935.

 

6. Id. at 929 (listing various writings on Levinas, Hegel, Freud, Kafka, Nelson Mandela, and the Declaration of Independence).

 

7. See, for example, Jacques Derrida, Glas (1974), whose subject matter has never precisely been determined.

 

8. Jacques Derrida, Biodegradables: Seven Diary Fragments, 15 Critical Inquiry 812 (1989) (Peggy Kamuf trans.) hereinafter Derrida, Biodegradables; Jacques Derrida, Like the Sound of the Sea Deep Within a Shell: Paul de Man's War, 14 Critical Inquiry 590 (1988) (Peggy Kamuf trans.) hereinafter Derrida, Paul de Man's War.

 

9. For various accounts, see David Lehman, Signs of the Times:

Deconstruction and the Fall of Paul de Man (1991); Responses: On Paul de Man's Wartime Journalism (Werner Hamacher et al. eds., 1989) hereinafter Responses.

 

10. See Werner Hamacher et al., Paul de Man, a Chronology, 1919-49 in Responses, supra note 9, at xiii. Members of the Belgian public derisively

 

referred to the captured institution as Le Soir vole ("The Stolen Evening"). Id.

 

11. Derrida, Paul de Man's War, supra note 8, at 607 (emphasis omitted). Derrida offers the same formula in Derrida, Biodegradables, supra note 8, at 822, as proof that he was not underplaying the malignancy of de Man's writings.

 

12. Paul de Man, Les Juifs dans la Litterature Actuelle, Le Soir, Mar. 4, 1941, at 1.

 

13. Derrida, Paul de Man's War, supra note 8.

 

14. Derrida, Biodegradables, supra note 8.

 

15. See Symposium, On Jacques Derrida's "Paul de Man's War," 15 Critical Inquiry 765 (1989).

 

16. Derrida, supra note 4, at 949.

 

17. Id. at 953.

 

18. Jacques Derrida, Of Grammatology (Gayatri C. Spivak trans., Johns Hopkins Univ. Press 1976) (1967).

 

19. Id. at 158 (emphasis omitted).

 

20. Plato, Republic, in The Collected Dialogues of Plato 575 (Edith Hamilton & Huntington Cairns eds., Bollingen Foundation 1961) hereinafter Collected Dialogues (Paul Shorey trans., 1930).

 

21. Plato, Statesman, in Collected Dialogues, supra note 20, at 1018 (J.B. Skemp trans., 1952).

 

22. Plato, Sophist, in Collected Dialogues, supra note 20, at 957 (Francis M. Cornford trans., 1935).

 

23. Plato, Laws, in Collected Dialogues, supra note 20, at 1225 (A.E. Taylor trans., 1934).

 

24. Here I draw on the excellent discussion in T.K. Seung, Intuition and Construction: The Foundation of Normative Theory 175-211 (1993).

 

25. T.K. Seung, Kant's Platonic Revolution (forthcoming 1994).

 



26. I borrow this expression from T.K. Seung. Id.

 

27. For a defense of this normative approach to deconstruction, see J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 Yale L.J. 105, 124-27 (1993).

 

28. Here one must be sensitive to the possibility that my assessment of Derrida applies with equal force to me: Repetition of older arguments in new contexts may have produced changes in views that I claim always to have held.

 

29. Derrida, supra note 4, at 951-53.

 

30. Id. at 953-55.

 

31. Id. at 951.

 

32. Id.

 

33. Id.

 

34. Id.

35. 60 U.S. (19 How.) 393 (1857).

 

36. 60 U.S. (19 How.) at 407.

 

37. Derrida, supra note 4, at 951.

 

38. As Derrida puts it:

A deconstructionist approach to the boundaries that institute the human subject (preferably and paradigmatically the adult male, rather than the woman, child or animal) as the measure of the just and the unjust, does not necessarily lead to injustice, nor to the effacement of an opposition between just and unjust but may, in the name of a demand more insatiable than justice, lead to a

reinterpretation of the whole apparatus of boundaries within which a history and a culture have been able to confine their criteriology.

Id. at 953.

 

39. Id. at 971.

 

40. Cf. id. at 953 (emphasis added).

 

41. 116 U.S. 394 (1886).

 

42. I want to emphasize here that the granting of "personhood" and even "citizenship" to corporations was originally designed to protect the property interests of individuals who owned shares in a corporation. To this extent, the expansion of corporate rights seems a perfectly justifiable protection of individual property rights - assuming always that the theorist in question believes that the basic structure of economic rights is justified. It therefore furthers, rather than detracts from, the "emancipatory ideal." However, one might protect these individual property rights in ways other than by creating a new legal subject with constitutional rights. The egalitarian critique, as I understand it, is that the choice of this strategy has had unexpected

consequences that cannot all be explained as necessary to protect the (just) rights of shareholders. To some degree the fiction of the corporation as a person has taken on a life of its own and has been used to work injustices and denials of individual rights. See, e.g., Connecticut Gen. Life Ins. Co. v. Johnson, 303 U.S. 77, 87-90 (1938) (Black, J., dissenting) (arguing that Santa

 

Clara should be overruled); C. Edwin Baker, Human Liberty and Freedom of Speech 220-21 (1991). For an examination of some of the alternative ways the issue might have been conceptualized and the consequences of the Santa Clara decision, see Morton J. Horwitz, Santa Clara Revisited: The Development of Corporate Theory, 88 W. Va. L. Rev. 173 (1985).

 

43. See First Natl. Bank v. Bellotti, 435 U.S. 765 (1978) (striking down limitations on corporate spending designed to influence voters).

 

44. See, e.g., Mark Tushnet, Corporations and Free Speech, in The Politics of Law 253 (David Kairys ed., 1982); cf. Owen M. Fiss, Why the State?, 100 Harv. L. Rev. 781, 787-91 (1987) (describing the media's control of public debate and business's control of the political process). Indeed, the U.S. Supreme Court has itself been somewhat equivocal on the question of whether the scope of this First Amendment right should be equal in all respects to the right enjoyed by natural persons. See Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). The question for Derrida, of course, is whether further deconstruction of the boundary that excludes corporations from full membership as "subjects of justice" would be a good thing or a bad thing.

 

45. See J.M. Balkin, Ideological Drift and the Struggle Over Meaning, 25 Conn. L. Rev. 869 (1993).

 

46. Derrida, supra note 4, at 953.

 

47. Id.

 

48. Increasing responsibility, moreover, always comes at a cost. The more things for which people are held responsible, the less time and money they have for their own pursuits. Responsibility to others comes at the price of one's freedom of action as well as one's security. An infinite protection of security for all will result in an infinite responsibility for all, which will

paradoxically abolish the liberty of all, and with it the security of all. The demand for infinite responsibility is like the paradoxical predicament of the pantheist who finds she must remain motionless because she fears that any movement on her part will inadvertently destroy a bug or a microorganism. Whatever she does, she is responsible. Yet her failure to act makes her doubly responsible.

 

49. See Derrida, Biodegradables, supra note 8, at 821.

 

50. Derrida, Paul de Man's War, supra note 8, at 640-51.

 

51. Id. at 650-51.

 

52. Id. at 621-32. In fact, Derrida asserts that, because de Man

specifically distances himself from so-called "vulgar" antisemitism, one can even read his article as implicitly rebuking the more virulent examples of antisemitism in the pages of Le Soir. Id. at 625-26.

 

53. Derrida, Biodegradables, supra note 8, at 820.

 

54. Id.

 

55. For a fuller discussion, see J.M. Balkin, Nested Oppositions, 99 Yale L.J. 1669 (1990) (book review).

 

56. Note that even when deconstructive arguments are employed to efface a particular distinction, they do not necessarily efface the distinction in all contexts. Thus they should be distinguished from a strategy of total effacement. Take for example the distinction between writing and speech discussed in

Derrida, supra note 18. Derrida argues that speech and writing are special cases of a more general form of "writing." He claims that people often assume that speech is closer to truth or true meaning than writing, but this assumption is not necessarily justified. Both possess the same features of signification, which are simply more obvious in the case of writing. Derrida's argument uses deconstruction for purposes of rectification; it argues that this new conception is a better - that is, truer - way of viewing things than the received wisdom. It is not a strategy of total effacement because his argument does not in fact efface the distinction between writing and speech in all contexts; it does so only with respect to the issue of semiotic function. Writing is still written, and speech is still spoken; hence even after the deconstruction we cannot say that writing and speech are identical in all contexts of judgment. This is a deconstructive argument of rectification; it shows not that speech and writing are identical, but that there is a nested opposition between the two concepts. See Balkin, supra note 55, at 1689-93.

 

57. Id. at 1676.

 

58. I have argued that transcendental deconstruction is premised on the assumption of transcendent values, and that this assumption inevitably leads to a logic of indefinite rather than infinite meanings. We might be tempted to identify transcendent values with the infinite rather than the indefinite because people sometimes think of the transcendent as that which surpasses all others. However, the question of transcendent values really concerns the

relationship between general normative concepts like justice or beauty and their particular instantiations in the real world. Our notion of justice is

transcendent because no particular example of justice in the world is perfectly just; it is indefinite because it cannot be reduced to any determinate formula. These are two ways of describing the same phenomenon.

 

Nevertheless, our idea of justice is not infinite; it does not lack

boundaries, even if these are not fully determined. For example, the value of justice is not the same thing as the value of beauty. If general normative concepts really had no limits, they would all be identical because there would be no way to distinguish them from each other. So, although our transcendent notion of justice is not specific enough to match any determinate example of justice or any determinate formula of justice, it is specific enough to be distinguished from other normative concepts. That is why it is indefinite but not infinite.

 

59. For a fuller discussion of the relationship between deconstruction and reconstruction, see Balkin, supra note 27, at 124-27.

 

60. Derrida, supra note 4, at 955.

 

61. Id.

 

62. Id.

 

63. Id.

 

64. Id.

 

65. Id. at 965.

 

66. Id. By a "regulative idea," Kant meant an idea that we must postulate or employ as a heuristic, in order to assist our use of reason. The self, the world, and God are examples of regulative ideas. See Immanuel Kant, The Critique of Pure Reason 549-60 (Norman K. Smith trans., London, MacMillan 1929) (1781).

 

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