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Deconstruction and Law: Derrida, Levinas and Cornell

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Deconstruction and Law: Derrida, Levinas and Cornell DECONSTRUCTION AND LAW: DERRIDA, LEVINAS AND CORNELL Jacques de Ville* Drucilla Cornell's book The Philosophy of the Limit hasfor a long time been an important referencepoint in attempting to understand the relation between deconstruction and law. This article examines some of the themes discussed by Cornell in this influential book. The article specifically evaluates the translation of Derrida's thinking into law as argued for by Cornell and concludesfrom this reading that Cornell to some extent misrepresents and also unnecessarily "tames" Derrida's thinking. Instead of leading to the radical transformation of law and society, Cornell's book gives support to an understanding of the relation between law and justice that is unlikely to have this effect. The article expounds a different reading of deconstruction based on a number of Derridean texts and argues that Derrida's thinking poses a more radical challenge to law than thatpresented by Cornell. Le livre The Philosophy of the Limit de Drucilla Cornell est depuis longtemps un point de refdrence important pour tenter de comprendre la relation entre la dconstruction et le droit. Cet article examine quelques-uns des thmes que discute Cornell dans ce livre imposant. Plus exactement l'auteurporte un jugement sur le transfert de la pensie de Derrida vers le droit tel que le soutient Cornell et en conclut que jusqu'a un certain point, Cornell donne une impression incorrecte de la pensie de Derrida et 4 att6nue- sans n6cessiti Plut6t que de mener a la transformation radicaledu droit et de la societ6, le livre de Cornell appuie une conception de la relation entre le droit et la justice qui rend un tel effet improbable. L'article prisente une interpritationdiffrente de la ddconstruction basie sur un nombre de textes de Derridaet soutient que la pensie de Derrida lance au droit un defi plus radical que celui que prisente Cornell. Professor of Law, University of the Western Cape. This article was first presented as a paper at the Society of Law Teachers of Southern Africa Conference at the University of Cape Town, 3-6 July 2006. I would like to express my gratitude to Paul Cilliers, Pierre de Vos and Solly Leeman, as well as two anonymous reviewers for their helpful comments on a previous draft of this article. HeinOnline -- 25 Windsor Y.B. Access Just. 31 2007 Windsor Yearbook of Access to Justice 2007 I. INTRODUCTION In Cornell's wonderful and influential book, The Philosophy of the Limit,' she attempts to bring about a fusion between the thoughts of inter alia Derrida and Levinas.2 Legal scholars are clearly indebted to Cornell for being one of the first to point out that Derrida is not simply a 'relativist' and that deconstruction does not entail a method,3 but that there is an "ethical dimension" to his thinking which had hitherto gone unnoticed. This book remains one of the most authoritative books on the relation between deconstruction and law. As it appears from recent contributions to the Cardozo Law Review,4 the question of the "translation" of Derrida into law remains a contentious issue. This article, although written many years after the publication of PoL, aims at contributing towards that debate through a close reading of PoL in order to ascertain whether its claims (to entail an accurate reflection of the relation between deconstruction and law) are justified. In other words, the question is whether the "translation" of Derrida into law has been faithfully executed by Cornell.5 My answer to this question is regrettably to a large extent in the negative. My aim in this article will be to examine those "inaccuracies" of translation. This is one reading of PoL which in my view has not been adequately undertaken in spite of a number of reviews and discussions of this fine book.6 I hope that my reading of PoL will provide a basis for an alternative translation of Derrida into law. It could be argued that some of the criticism that is voiced in this article (assuming that it is accurate) is unfair because many of the Derridean themes that are referred to here were developed by Derrida only after the publication of Cornell's book. My response to this charge would be that, as Derrida has often said, these themes were already evident in his many texts before 1992, z although perhaps in a less developed form. Even if the criticism voiced in this article is unfair in the first sense, I believe that my discussion of Cornell's reading of Derrida is relevant if for no other reason than that it shows the differences in thinking between her and Derrida on the relation between deconstruction and law. It must be acknowledged that my task, fourteen years after the publication of PoL and with the assistance of many more texts of 1 Drucilla Cornell, The Philosophy of the Limit (New York and London: Routledge, 1992) [Cornell, PoL]. 2 See Preface to ibid. 3 See Pierre Schlag, "A Brief Survey of Deconstruction" (2005) 27 Cardozo L. Rev. 741 [Schlag, "Survey"]; and Jack M. Balkin, "Deconstruction's Legal Career (2005) 27 Cardozo L. Rev. 719 for respectively an analysis and a defence (of deconstruction as a method). 4 (2005) 27 Cardozo L. Rev. 631-845. 5 For reasons of space and competence I refrain in this article from evaluating the accuracy of Cornell's translation of Levinas into law. 6 See Anne Barbeau Gardiner, "The Philosophy of the Limit" (Winter 1993) 22(2) CLIO 180 for a review by someone who, because of Cornell's left politics, does not think the book is so "fine". 7 See Jacques Derrida, Rogues: Two Essays on Reason, trans. by Pascale-Anne Brault & Michael Naas (Stanford: Stanford University Press, 2005) at 39 [Derrida, Rogues]; Jacques Derrida et al, "Hospitality, Justice and Responsibility: A Dialogue with Jacques Derrida" in Richard Kearney & Mark Dooley eds., Questioning Ethics: Contemporary Debates in Philosophy (London and New York: Routledge, 1999) 65 at 80-82 [Derrida et al, "Hospitality"]. HeinOnline -- 25 Windsor Y.B. Access Just. 32 2007 Vo. 25. (1) Deconstruction,Derrida, Levinas & Cornell Derrida and on Derrida,' is no doubt, in a sense easier than the one Cornell set for herself in the 1980s and early 1990s, when her "alliance" with Derrida was most explicit It furthermore can be noted that Cornell, as recently as 2003, repeated many of her earlier claims espoused in PoL regarding Derrida and law." My main "charge" against Cornell, as will appear from the discussion below, is that she "modifies" and "tames" Derrida's radical thinking in translating it into law. One could argue that this move of Cornell is deliberate; that she intentionally decides to follow (her reading of) Levinas (and in this way go "beyond" Derrida) in synchronizing "the affirmation of the Saying with its negation in the said"" or, stated differently, in aspiring "to enact the ethical relation."12 Cornell nevertheless still claims to be following Derrida, in that she will be "attempting to say what Derrida does," and that she will "take us beyond Derrida's own relative silence."13 She also frequently refers to "Derrida's philosophy of the limit." 4 The accuracy of these claims has to be tested." As will appear from the discussion below, I believe that there are a 8 My reliance on secondary texts will of course not be indiscriminate. In support of my reading of Derrida and criticism of Cornell, I will rely on those texts which, on my reading, remain very close to Derrida's texts. 9 See note 14 below on the notion of 'alliance' in Cornell's texts. 10 See Drucilla Cornell, "Rethinking Legal Ideals after Deconstruction" in Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey eds., Laws Madness (Ann Arbor, University of Michigan Press, 2003) 147. This analysis contains no reference to Derrida's many later texts of the 1990s. In Drucilla Cornell, Between Women and Generations: Legacies of Dignity (Lanham: Rowman & Littlefield Publishers, 2005), a hauntingly beautiful and personal text, Cornell does make reference to a few of Derrida's later texts [Cornell, Between Women]. This is also the case in Drucilla Cornell, "Derrida. The Gift of the Future" (2005) 16 (3) Differences: A Journal of Feminist Cultural Studies 68 where Cornell reflects on some of the reactions to Derrida's death. 11 Cornell, PoL, supra note 1 at 89. 12 Ibid. at 84. See also at 64 where Cornell states that instead of preferring one to the other, she will read Derrida and Levinas together in order to enact a non-violent relation to otherness. The ethical relation is at times linked to the utopianism that Cornell detects (wrongly, in my view) in Derrida's thinking; see at 8, 186 fn 13. A discussion of utopianism and its relation to deconstruction follows below. 13 Cornell, PoL, supra note 1 at 90. 14 Ibid. at 130, 138 and 178. It is interesting to note that in some of her other publications Cornell criticizes Derrida or expressly indicates her disagreement with Derrida; see e.g., Drucilla Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law (New York and London: Routledge, 1991) 96, 110, 118 [Cornell, Beyond Accommodation]; and Cornell, "Rethinking Legal Ideals after Deconstruction" supra note 10, at 164 on points similar to those discussed in PoL which are attributed to Derrida and incorporated within the model presented in PoL. In Beyond Accommodation at 96-97 Cornell presents her approach as merely "an alliance" with deconstruction. This is not the case in PoL. Cornell has explained her use of the notion of "alliance" in an interview with Penny Florence; see Drucilla Cornell, "Toward the Domain of Freedom: Interview with Drucilla Cornell by Penny Florence" in Cynthia Willet ed., Theorizing Multiculturalism:A Guide to the Current Debate (Oxford: Blackwell, 1998) 219, at 230.
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