Law, Cross-Pressures, and Deconstruction

One of the things that struck me powerfully when I first began to study it, was the sense of being in cross-pressured fields where arguments (concerned with case law, statutes, treaty provisions, and other legal sources) lead in diametrically opposed directions. I looked for methodological approaches to understand these cross-pressures and, found in the writings of Jack Balkin an entry point into deconstruction. Some examples will focus what I mean by cross pressures. A judge considering the creation of a new liability rule in negligence law may see it as offering enhanced security. But she may be uneasy about reducing the freedom of action of potential defendants. An academic whose field of study is EU law may, while seeing attractions in the idea of ‘ever closer union’, recognize that member-states think inter-governmentalism important. Cross pressures of this sort can induce in those who experience them the condition that philosophers label ‘aporia’ (which arises when perplexity overwhelms people who seek to move forward in particular fields). This sense of being at a loss comes with the territory of law. As a way of approaching the study of texts, deconstruction helps us to understand it more fully.

Deconstruction is a critical interpretative practice that rapidly gained currency in the field of literary theory over half-a-century ago. Subsequently, a number of legal academics (e.g., Drucilla Cornell and Jack Balkin) took it up with a view to revealing the inherent instability of legal language. When legal academics work along these lines, we might see them as doing no more than alerting us to a fact about what Balkin has called ‘human culture’ (the cross pressures that exist in our linguistic resources). But this would be to downplay the interpretative burdens that deconstruction places on readers. These burdens led Jacques Derrida, who introduced the term ‘deconstruction’, to describe it (somewhat reluctantly) as an ‘exorbitant’ method.

The relevance of this method to the cross pressures that exist in legal contexts is easy to explain. Lawyers who engage in deconstruction read texts closely with the aim of identifying within them what they call ‘binary oppositions’. Here, we can talk (taking our cues from Derrida) of explication de texte (which involves poring over a text so as to identify its most prominent features). But explication de texte is only the first of two components in the practice of deconstruction. Once a binary opposition has come into view, deconstructionists dwell on the relationship between its two poles.  Their aim in doing so is to establish which of the two enjoys a privileged position relative to the other (whose position is marginal). This interpretive activity is a prelude to a deconstructive reversal. This involves a switch in the order of priority as between the two poles. Here, deconstructionists talk of ‘hermeneutic violence’. This might, for example, involve an EU lawyer in arguing not for ‘ever closer union’ (or ‘more Europe’) but, rather, for a new relationship between member-states in which inter-governmentalism has a central place. As expressions like ‘binary opposition’, ‘explication de texte’, and ‘hermeneutic violence’ illustrate, a vocabulary has grown up around deconstruction that may seem rather forbidding. This point also applies to another term that has a central place in deconstruction. This term is ‘the metaphysics of presence’. Derrida uses it to bring into focus the tendency people have to assume that sources of enduring truth can be found in the values (e.g., security) or ends (e.g., ‘ever closer union’) they prioritize. To the extent that people think along these lines, it becomes possible to see why the phrase ‘hermeneutic violence’ has relevance to deconstructive reversals. Such reversals reduce to a marginal status the building blocks of contexts that have acquired a familiar appearance (e.g., a value, such as security, that bulks large in tort lawyers’ minds).

This is a point that applies to political and constitutional theory in societies such as the USA and the UK. In these contexts, the writings of John Rawls and Ronald Dworkin have encouraged the idea that it is possible to move towards an ideal end-state (in which an enduring commitment to social justice exists). Rawls encourages this idea in his account of ideal political theory (which develops the conception of a ‘perfectly just’ social structure). However, he also introduces the idea of ‘non-ideal’ political theory (which relates to ‘less happy’ circumstances that can impede the pursuit of justice). Rawls’s distinction presents us with a binary opposition. Moreover, we might perform a deconstructive reversal by using non-ideal theory to argue that we are situated on a ship of state on a sea of contingency, rather than poised to take up residence in an enduring end-state.

Here, again, we encounter cross-pressures. They will not disappear from our work. But deconstruction can help us understand them rather better.