Defending Derrida

On Sunday, about 200 people crowded into the Jacob Burns Moot Court of the Cardozo School of Law in New York City to speak of Jacques Derrida -- a.k.a. "Jackie" and "JD" -- at a conference called "Derrida/America: The Present State of America's Europe." The throng was down to a third of that size by Monday morning. Maybe everyone else went off to see "The Gates," Christo's installation of saffron banners running around Central Park. The installation wouldn't last forever, while the job of sorting out the legacy of deconstruction might take a while.

Certainly the dominant note of the event (a gathering "in celebration and mourning," as a few speakers put it) was to insist that Derrida's work deserved more serious notice than it had received in the American press following his death in September. In welcoming the audience, Peter Goodrich, a professor of law at Cardozo, noted that people who were "unimpeded by any knowledge of what they're talking about" evidently felt an especially passionate urge to denounce Derrida. Although no speaker mentioned it as such, the most egregious example was undoubtedly the obituary in The New York Times -- a tour de force of malice and intellectual laziness, by someone whose entire knowledge of Derrida's work appeared to have been gleaned from reading the back of a video box for the Woody Allen film Deconstructing Harry.

But the problem is not simply with the American public at large. "There is something I've wanted to say in public for some time," announced Simon Critchley, a professor of philosophy at New School University. "The treatment of Derrida by philosophers in the Anglophone world was shameful. They weren't stupid. They knew better. They hadn't read Derrida, and they knew they hadn't. But philistinism -- combined with envy at Derrida for being smart, charismatic, good looking, and a snappy dresser -- made them behave in a way that was, there is no other word for it, shameful."

The crowd applauded. "Now I feel better," he said.

Posthumous compliments for Derrida, and cathartic insults for his enemies, were only a small part of the program. Speakers came back repeatedly to "Force of Law: The 'Mystical Foundation of Authority' " -- a lecture on the complex and contradictory relationship between law and justice that Derrida gave in 1989, at a colloquium called "Deconstruction and the Possibility of Justice," held at Cardozo, the law school of Yeshiva University. Derrida's paper is now most readily available now in Acts of Religion, a collection of his writings published by Routledge.

Among the scores of books and essays that Derrida published over the final 15 years of his life, "Force of Law" looms as one of the most important. In 2003, not long before he was diagnosed with pancreatic cancer, Derrida published a book on the possibility of global democracy called Rogues, just released in an English translation from Stanford University Press. Many of its themes were anticipated in the Cardozo lecture, making "Force of Law" almost a prerequisite to understanding Derrida's final book. (Or so I figured out the hard way, a few months ago, by reading Rogues first.)

"What is currently called deconstruction," said Derrida in 1989, "would not at all correspond (though certain people have an interest in spreading this confusion) to a quasi-nihilistic abdication before the ethico-politico-juridical question of justice and before the opposition between just and unjust...."

His goal, in effect, is to point to a notion of justice that would be higher than any given code of laws. Likewise, in other late writings, Derrida seeks to define a notion of forgiveness that would be able to grapple with the unforgivable. And, he asks, might it be the case that Levantine traditions of hospitality (of welcoming the Other into one's home) transcend more modern conceptions of ethics?

For someone constantly accused of relativism, Derrida often sounds in these late works like a man haunted by the absolute. There is a sense in which, although he was an atheist, he practiced what a medieval scholar might have recognized as "negative theology" -- an effort to define the nature of God by cutting away all the misleading conceptions imposed by the limits of human understanding.

The implications were political, at least in some very abstract sense. In his keynote talk at the American Academy of Religion in 2002, Derrida proposed a notion of God that, in effect, utterly capsized the familiar world of monotheism by stripping it of all our usual understandings of divine authority. Suppose God were not the all powerful king of the universe (the image that even an atheist is prone to imagine upon hearing the name "God"). Suppose, rather, that God were infinitely weak, utterly vulnerable. What then? What would it mean that human beings are made in His image?

Such moments in Derrida's work could be very moving. Or they could be very irritating. At the Cardozo conference, it sounded at times as if the jury were still out on "Force of Law." Some speakers indicated that the lecture had radically transformed the way they understood legal theory, while a couple of dissenters suggested that Derrida had at most made a very late contribution to the school known as critical legal studies -- or even served up "warmed over legal realism" with a rich French sauce.

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

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

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

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

Of course this formulation did not go unchallenged by members of the audience during the discussion afterward. But it did call to mind something that Peter Goodrich had said earlier, in recalling Derrida's first visit to Cardozo. "Law school depressed him," as Goodrich put, "both the environment and the inhabitants." Perhaps it was, at best, a distraction from the philosophical pursuit of pure justice, in all its impossible beauty.

On Thursday, Derrida, the university, global democracy, and some flashbacks to the 1980s, when the abyss was just a seminar away.