This article questions the common assumptions in legal theory regarding Derrida’s well-known Declarations of Independence. Through a close reading of this text, well-known ground such as the relation between speech and writing, the notion of representation, speech act theory, the signature, and the proper name is covered. The contribution that this analysis makes in the present context lies in the additional ‘step’ that it takes. The article seeks to give an explanation of the laws at work in Derrida’s thinking in the above respects and to explain more specifically how they find expression in Declarations of Independence. The article in this regard also investigates the importance and role of the ‘notions’ of death, loss of meaning, loss of ownership, and loss of sovereignty in Derrida’s thinking. The contention is that if we take account of Derrida’s reading in Declarations of Independence, it is possible to view constitutions in a very different way, more specifically their ‘origins’, with inevitable implications for constitutional interpretation.
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J. Derrida, “Declarations of Independence”, in Negotiations: Interventions and Interviews, 1971–2001 (Stanford: Stanford University Press, 2002), 46–54. This translation first appeared in Caucus for a New Political Science 15 (1986), 7–15. Hereafter cited parenthetically in the text as DI.
A number of texts have dealt with Derrida’s essay. Although my analysis differs in various respect from these, I have benefited particularly from the reflections of C. Norris, Derrida (Cambridge, Massachusetts: Harvard University Press, 1987), 194–199; J.C. Evans, “Deconstructing the Declaration: A Case Study in Pragrammatology”, Man and World 23 (1990), 175–189; B. Honig, “Declarations of Independence: Arendt and Derrida on the Problem of Founding a Republic”, The American Political Science Review 85 (1991), 97–113; P. Fitzpatrick, “Modernism and the Grounds of Law” (Cambridge: Cambridge University Press, 2001), 79–84; P. Hanafin, “Constitutive Fiction: Postcolonial Constitutionalism in Ireland”, Penn State International LR 20 (2002): 339–61; S. Motha, “The Sovereign Event in a Nation’s Law”, Law and Critique 13 (2002), 311–338; B. Collins, “The Belfast Agreement and the Nation that ‘Always Arrives at its Destination’”, Penn State International LR 20 (2002), 385–413; N. Horwitz, “Derrida and the Aporia of the Political, or the Theologico-Political Dimension of Deconstruction”, Research in Phenomenology 32 (2002), 156–176; J.C. Barton, “Iterability and the Order-Word Plateau: ‘A Politics of the Performative’ in Derrida and Deleuze/Guattari”, Critical Horizons, 4 (2003), 227–264; S. Bischoff, Gerechtigkeit – Verantwortung – Gastfreundschaft: Ethik-Ansätze nach Jacques Derrida (Freiburg: Switzerland, 2004), 175–178; and P. Fitzpatrick, “‘What are the Gods to Us Now?’: Secular Theology and the Modernity of Law”, Theoretical Inquiries in Law 8 (2007), 161–190.
J. Derrida, “Force of Law: The “Mystical Foundation of Authority”, in D. Cornell, M. Rosenfeld and D. Gray Carlson, eds., Deconstruction and the Possibility of Justice (New York: Routledge, 1992), 3–67; J. Derrida, “Before the Law”, in Acts of Literature (New York: Routledge, 1992), 181–220; and J. Derrida, “The Laws of Reflection: Nelson Mandela, in Admiration”, in J. Derrida and M. Tlili eds., For Nelson Mandela (New York: Seaver Books, 1987), 13–42.
J. Derrida, Positions 2nd edn (London: Continuum, 2002), 23, pp. 38–39; J. Derrida “Signature Event Context”, in Margins of Philosophy (Chicago: The University of Chicago Press, 1982), 329–330.
This is not to assert that deconstruction is a method, doctrine or general procedure. In an interview dating from 1978, Derrida hesitantly described it as a nomadic war, a war “consisting of small clandestine operations”; see F. Tellez and B. Mazzoldi, “The Pocket-Size Interview with Jacques Derrida”, Critical Inquiry 33 (2007), 386.
I retain this word, which is perhaps not the most appropriate, using it in a specific sense. ‘Analysis’ usually has connotations of neutral ‘constative’ description, whereas Derrida’s ‘analyses’ are also of a performative and even pure or meta-performative nature, as we will see below; see also J. Derrida, Rogues: Two Essays on Reason (Stanford: Stanford University Press, 2005), 91–92.
See J. Derrida and M. Ferraris, A Taste for the Secret (Cambridge: Polity Press, 2001), 31. J. Derrida, Glas (Lincoln: The University of Nebraska Press, 1986).E.-W. Böckenförde, Die verfassunggebende Gewalt des Volkes – Ein Grenzbegriff des Verfassungsrechts (Frankfurt am Main: Alfred Metzner Verlag, 1986); H. Mohnhaupt and D. Grimm, Verfassung: Zur Geschichte des Begriffs von der Antike bis zur Gegenwart 2nd edn (Berlin: Duncker & Humblot, 2002), 100–141; G.F. Schuppert, Staatswissenschaft (Baden-Baden: Nomos, 2003), 157–160 (on internal and external sovereignty), 745–151; J. Rubenfeld, “Legitimacy and Interpretation”, in L. Alexander, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998), 194–234. On the possibility of constitutions beyond a national state and a people; see inter alia P. Häberle, Europäïsche Verfassungslehre (Baden-Baden: Nomos, 2006), 187–193; and T. Herbst, Legitimation durch Verfassunggebung: Ein Prinzipienmodell der Legitimität staatlicher und supranationaler Hoheitsgewalt (Baden-Baden: Nomos, 2003), 177–181.
This does of course not imply that there has been no reflection in legal scholarship on the relation between language and law. A number of approaches have been developed including ones based on the ideas of classical speech act theory, which will be referred to in more detail below; see inter alia T.A.O. Endicott, “Law and Language”, in J. Coleman and S. Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002), 935–968 for a discussion of some of these approaches and for further references. The implications of Derrida’s texts that deal with the privileging of speech and the denigration of writing in the metaphysical tradition have on my reading not as yet been adequately explored in the legal context.
See e.g. K. Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland 20th edn, (Heidelberg: CF Müller, 1999), 14–15.
U. Haltern, “Internationales Verfassungsrecht? Anmerkungen zu einer kopernikanischen Wende”, Archiv des öffentliches Recht 128 (2003), 532.
Häberle, supra n. 9, at 204.J. Derrida, Who’s Afraid of Philosophy? Right to Philosophy 1 (Stanford: Stanford University Press, 2002), 34.
Ibid., at 81. Derrida uses the term ‘mark’ or ‘trace’ rather than sign because of the sign’s metaphysical presuppositions – based on the notions of a signifier and a signified; see J. Derrida, Speech and Phenomena and Other Essays on Husserl’s Theory of Signs (Evanston: Northwestern University Press, 1973), 138; Derrida, supra n. 4 (Positions) at 17–22.
For an excellent commentary, see Bischof, supra n. 2 at 123–155. Derrida, supra n. 4 (Margins), at 312. Ibid., at 311. Ibid., at 309, 311. Ibid., at 312. See also Derrida, supra n. 4 (Positions), at 21–22.See also R.S. McDonald, “Thomas Jefferson’s Changing Reputation as Author of the Declaration of Independence: The First Fifty Years”, Journal of the Early Republic 19 (1999), 169–195.
See J. Derrida, “Plato’s Pharmacy”, in Dissemination (London: Continuum, 2004), 91–97. The role is nevertheless an ambivalent one, as will be indicated below.
Ibid., at 136, 153. Derrida, supra n. 15, at 76, 77. Derrida, supra n. 22, at 126; Derrida, supra n. 15, at 10, 54. Derrida, supra n. 15, at 77–78.Derrida, supra n. 4 (Margins), at 313. This loss of presence which occurs through writing has of course been part of the reason why writing has been condemned so often and consistently in the history of philosophy; see e.g. J. Derrida, Of Grammatology (Baltimore: John Hopkins University Press, 1974). See also Derrida, supra n. 4 (Positions), at 22–23.
Derrida, supra n. 4 (Margins), at 313. See also Derrida, supra n. 15, at 80–81; and Derrida, supra n. 14, at 26 where he refers to this kind of approach as “a techno-semiotic, purely conventionalist and instrumentalist approach to language”.
Derrida, supra n. 4 (Margins), at 315–316. Ibid., at 316; and Derrida, supra n. 15, at 40, 93–97. Derrida, supra n. 4 (Margins), at 317; and Derrida, supra n. 22, at 116.Derrida, supra n. 4 (Margins), at 317. An essential feature of the mark is that it can function independent of the intention of the producer. Words or parts of words can furthermore be cut out from their original context and grafted into new contexts. This force of a mark is due to spacing which constitutes the written mark; the spacing that separates it from other elements of the internal contextual chain and also from present referents.
Ibid., at 318. This is necessarily tied to Derrida’s discussion of différance which engages inter alia with the contention of Ferdinand de Saussure that in language there are only differences without positive terms and that language is not a function of the speaking subject; see J. Derrida, “Différance”, in Margins of Philosophy (Chicago: The University of Chicago Press, 1982), 1–27.
See further J. Derrida, Limited Inc (Evanston: Northwestern University Press, 1988), 47–54 on this structural law.
Derrida, supra n. 15, at 45 note 4, 57 note 6. Ibid., at 54.See ibid., at 49–50, 56l; and Derrida, supra n. 4 (Margins), at 316–318. Also in the case of spoken communication this takes place by means of the unity of a signifying form, which in turn can only function as such because of its iterability – its ability of being repeated in the absence of its referent as well as in the absence of a determined signified or a present intention of signification.
Derrida, supra n. 4 (Margins), at 320. As Derrida, supra n. 22, at 91–97 read with fn 29 (at 173–174) reminds us, in Egyptian mythology, Thoth – the god of writing (who is also the son of the sun-god Ra, the secretary of Ra, a supplement to Ra, the nocturnal representative of Ra (the moon), the god of death, the god of non-identity) ultimately eclipses his father, becomes the god of the gods, the god thus also of the king, the father of speech.
Derrida, supra n. 4 (Margins), at 315.J. Derrida, Monolingualism of the Other; or, The Prosthesis of Origin (Stanford: Stanford University Press, 1998), 23–25, 40, 68.
See Derrida, supra n. 4 (Margins), at 18–19 on the pleasure and reality principles in Freud’s Beyond the Pleasure Principle.
In quotation marks because it is not a presence. Derrida, supra n. 3 (“Force of Law”), at 38. See also Derrida, supra n. 22, at 126. Derrida, supra n. 6, at 112. Derrida, supra n. 40, at 34, 58.See Derrida, supra n. 6; and J. Derrida, “Faith and Knowledge: The Two Sources of ‘Religion’ at the Limits of Reason Alone”, in J. Derrida and G. Vattimo, eds., Religion (Stanford: Stanford University Press, 1998), 1–78; J. Derrida, Memoires for Paul de Man (New York: Columbia University Press, 1986 and 1989), 96–97.
See, for example, A. Kalyvas, “Popular Sovereignty, Democracy, and the Constituent Power”, Constellations 12 (2005), 238 who, referring to Carl Schmitt, describes democracy as the regime in which “the people is the subject of the constituent power and gives to itself its own constitution”.
This “law” should obviously not be confused with the law in the sense of the legal system. See in this respect also Derrida, supra n. 3 (“Before the Law”), at 183 where he speaks of the law of law or the law itself which as the text makes clear, has to be brought into relation with iterability, différance, unconditional justice, etc in Derrida’s other texts. This is confirmed by Derrida, supra n. 3 (“Force of Law”), at 17. See also Derrida, supra n. 3 (“Laws of Reflection”), at 22–29, 34, 37–38 where a superior law, also referred to as justice, the law of laws – a law which has not as yet presented itself – is invoked in the name of which Mandela challenges the apartheid legal system.
See Derrida, supra n. 3 (“Force of Law”), at 28; J. Derrida, Given Time: I. Counterfeit Money (Chicago: The University of Chicago Press, 1992); J. Derrida and A. Dufourmantelle, Of Hospitality (Stanford: Stanford University Press, 2000).
Derrida, supra n. 4 (Margins), at 310, 316. This should not be confused with plurality or masterable polysemy; see ibid., at 310; Derrida, supra n. 40, at 26.
Supra n. 27.J. Derrida, The Post Card: From Socrates to Freud and Beyond (Chicago and London: University of Chicago Press, 1987), 257–409. See also J. Derrida “Envoi” in Jacques Derrida, Psyche: Inventions of the Other vol I (Stanford: Stanford University Press, 2007), 94–128.
