Who's Afraid of Humpty Dumpty: Deconstructionist References in Judicial Opinions

• Publication year: 1997
• Citation: Vol. 21 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 2FALL 1997

ARTICLES

Who's Afraid of Humpty Dumpty: Deconstructionist References in Judicial Opinions

Madeleine Plasencia(fn*)

I. Introduction [Is Deconstruction Anathema to Judicial Lawmaking?]

This Article examines the treatment of deconstruction in United States judicial opinions.(fn1) A handful of cases have directly referred to the French philosopher and literary theorist, Jacques Derrida.(fn2) In each of these cases, the court has rejected Derrida's philosophy, apparently out of a fear that recognition of any legitimacy of Derrida's thoughts would lead to the self-destruction of the legal world. These courts have misunderstood that consideration or recognition of Derrida's philosophy in the legal context would not unavoidably lead to the end of all meaningful legal discourse in the United States. A discussion of these cases will serve as a springboard for an examination of traditional methods of legal interpretation, and how these methods interact with deconstruction.

Derrida's philosophy, which gave rise to the philosophy known as deconstruction, contends that in Western culture our conception of the world depends upon a logocentric view. One of Derrida's examples of this logocentrism involves the favoring of written communication over verbal communication. The hallmark of Derrida is his discussion of the internal contradictions of language which, undermine any contention that language is capable of uniform meaning.

The question of why judges are concerned with justifying or defending their decisions from the followers of Derrida?, is posed in this Article both generally, as a matter of legal interpretation, and specifically, within the context of the issue(s) presented in the examined cases. By examining the concerns articulated by the judges in these cases and then referring back to the writings of Derrida, this Article describes the likely outcome if Derrida's views of (legal) interpretation are in fact applied in judicial opinion-making.

In Parts II and III, this Article introduces the reader to important concepts in Derridean deconstruction. These concepts include notions of "privileging," "iterability," and the "free" play of text. Derrida's work is presented generally and is examined in light of his writings concerning law, justice, and authority. In Part IV, this Article demonstrates the protean nature of law(fn3) by an examination of contract law. Part V examines the relationship of statutory law and common law as a doubling of the difficulties of applying law uniformly and coherently. As this Article demonstrates, the intent of the legislative body in enacting law is thwarted by individual judges' reading and writing of the law in the conjugation of caselaw. Finally, this Article demonstrates that the inherent difficulties in interpreting and applying laws lie in the relationship between the ultimate arbiter of law and the text of the law itself.

II. Derrida and Modern Thought

Derrida has been hailed as a genius, as evidenced by the confirmation in May 1992 of an honorary degree in philosophy on Derrida by the University of Cambridge. As noted in the press,One measure of Derrida's influence is revealed by a study of 20th-century authors most cited by other academics. The French philosopher, who has written some 35 works, comes in the top 20, according to the survey by the Institute for Scientific Information, ba[s]ed in Boston.(fn4) In the late 1970s and early 1980s, two of his most quoted works, De La Grammatologie and L'ecriture et la difference, were listed as among the top twenty most cited items.(fn5) His work has been largely influential in the fields of philosophy and literary criticism.(fn6) In the 1980s, his influence expanded into legal scholarship.(fn7) Derrida has been considered the origin of the theory called "deconstruction."(fn8) Decon-struction has been variously defined and interpreted by legal scholars.(fn9) Derrida himself in a recent paper presented at Benjamin N. Cardozo School of Law, in New York, had this to say in hazarding a definition of deconstruction: "Needless to say, one more time, deconstruction, if there is such a thing, takes place as the experience of the impossible."(fn10) His works discuss the elusive nature of the correspondence between language as intended and language as interpreted.(fn11) The signature, and the recognized brilliance of Derrida, lie in his discussion of the contradictory quality of all meaning within any written text.

III. Derrida Illread or Unread?-The Hierarchical Opposition of Ideas, Iterability, and the Free Play of Text

Three prominent concepts permeate the work of Derrida-"privileging," "iterability," and the "free" play of text.(fn12) Derridean deconstruction involves the practice of investigating signified content and questioning the codes inherited from ethics and politics.(fn13) Derrida's project is that of explaining and identifying the hierarchical oppositions that surround language.(fn14) Hierarchy and opposition in this context involves the recognition of the ethnocentric practice in Western culture of positioning one concept before another, and simultaneously giving supremacy to one concept over that which it is not-said to be its opposite. This is closely related to Derrida's concept of privileging. Privileging is used here to mean the favoring of certain ideas over others. In this sense, certain ideas are secondary to those considered to be relatively primary. An example used by Derrida to demonstrate privileging is where writing usurps the principal role in communication over speech.(fn15) Writing, the representative version of the spoken or thought-of concept, now has taken over the role of the first, primary, or preferred.

Iterability is the ability of signs to be repeated and to signify the same meaning in different contexts, regardless of the author's intent in using those signs.(fn16) Hence, iterability equals repeatability or the property thereof.

"Play" in Derrida's philosophy refers to that uncontrollable association or interaction between writing both physically, as in the text on a page and the spaces between text, and temporally, as in the temporal or linear space between the spoken word and its written signifier.(fn17) A more comprehensive overview of these three concepts follows.

A. Privileging

Privileging is the favoring of one concept over another. One of the easiest ways to understand Derrida's notion of privileging is illustrated through his example of favoring writing over speech. For Derrida, one holds an idea and its opposite in mind simultaneously-when thinking of speech we are simultaneously thinking of what speech is not-writing, and vice versa.(fn18)

In his works Positions and Of Grammatology, Derrida discusses the "overturning and displacement" of text by the example of the tendency to favor the written word over speech.(fn19) Derrida postulates that reversing the order-that is, considering the written word as parasitic or dependent upon the speech act-yields new insights when this privileging of one arrangement is reversed or turned on its head.(fn20) Immediacy, physically and temporally, of the speaker and listener accord speech a higher value than writing because, as Balkin so aptly puts it, "[the] immediacy seems to guarantee the notion that in the spoken word we know what we mean, mean what we say, say what we mean, and know what we have said."(fn21) Because of the physical and temporal immediacy of speech, Derrida suggests that perhaps "[w]riting should erase itself before the plenitude of living speech, perfectly represented in the transparence of its notation, immediately present for the subject who speaks it, and for the subject who receives its meaning, content, value."(fn22)

The point made here by Derrida is that speech usually involves the simultaneous physical presence of the speaker and the listener. To this extent, speech should be privileged over writing because the speaker may immediately communicate his or her intention to the listener without the mediation of writing. Speech allows for communication through tone, inflexion of voice, and nonverbal body language-all of which serve to impart the intention of the speaker in what it is he or she is saying. On the other hand, a writer is limited to the alphabetic or phonetic signifiers of language. Also, the writer, usually, would not immediately be present to answer questions from the reader. Thus, ambiguity and ineffectiveness of communication are more likely with writing than with speech.

Derrida suggests that speech, like writing, incorporates three basic properties of signification: "(1) the substitution of the signifier for what it signifies; (2) the mediation of the experience of the signified by the signifier, [sic] and (3) the iterability of the signifier at different times and in different contexts."(fn23) Like the written word, speech stands in as signifier for a particular thought.(fn24) In order for speech to be a signifier, as a sign, speech must be iterable.(fn25) Speech must be able to continue "speaking" long after the speaker has ceased speaking.(fn26) Hence, writing is the introduction of a means of communicating thoughts through marks. The concept of the Derridean "sign" will be revisited shortly. The point here is that the revelation of the lacunae or gaps between that which text...