JACQUES DERRIDA LAW AS ABSOLUTE HOSPITALITY JACQUES DE VILLE NOMIKOI CRITICAL LEGAL THINKERS Jacques Derrida Jacques Derrida: Law as Absolute Hospitality presents a comprehensive account and understanding of Derrida’s approach to law and justice. Through a detailed reading of Derrida’s texts, Jacques de Ville contends that it is only by way of Derrida’s deconstruction of the metaphysics of presence, and specifi cally in relation to the texts of Husserl, Levinas, Freud and Heidegger, that the reasoning behind his elusive works on law and justice can be grasped. Through detailed readings of texts such as ‘To Speculate – on Freud’, Adieu, ‘Declarations of Independence’, ‘Before the Law’, ‘Cogito and the History of Madness’, Given Time, ‘Force of Law’ and Specters of Marx, de Ville contends that there is a continuity in Derrida’s thinking, and rejects the idea of an ‘ethical turn’. Derrida is shown to be neither a postmodernist nor a political liberal, but a radical revolutionary. De Ville also controversially contends that justice in Derrida’s thinking must be radically distinguished from Levinas’s refl ections on ‘the Other’. It is the notion of absolute hospitality – which Derrida derives from Levinas, but radically transforms – that provides the basis of this argument. Justice must, on de Ville’s reading, be understood in terms of a demand of absolute hospitality which is imposed on both the individual and the collective subject. A much needed account of Derrida’s infl uential approach to law, Jacques Derrida: Law as Absolute Hospitality will be an invaluable resource for those with an interest in legal theory, and for those with an interest in the ethics and politics of deconstruction. Jacques de Ville is Professor of Law at the University of the Western Cape, South Africa. Nomikoi: Critical Legal Thinkers Series editors: Peter Goodrich Cardozo School of Law, New York David Seymour School of Law, Lancaster University, UK Nomikoi: Critical Legal Thinkers presents analyses of key critical theorists whose thinking on law has contributed significantly to the development of the new interdisciplinary legal studies. Addressing those who have most influenced legal thought and thought about law, the aim of the series is to bring legal scholarship, the social sciences and the humanities into closer dialogue. Other titles in the Series Judith Butler: Ethics, Law, Politics, Elena Loizidou Evgeny Pashukanis: A Critical Appraisal, Michael Head Giorgio Agamben: Power, Law and the Uses of Criticism, Thanos Zartaloudis Forthcoming titles in the Series Carl Schmitt: Law as Politics, Ideology and Strategic Myth, Michael Salter Henri Lefebvre: Critical Legal Studies and the Politics of Space, Chris Butler Deleuze & Guattari: Emergent Law, Jamie Murray Jacques Lacan on Law, Kirsten Cambell Jacques Derrida Law as Absolute Hospitality Jacques de Ville First published 2011 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 A GlassHouse Book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2011 Jacques de Ville The right of Jacques de Ville to be identifi ed as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identifi cation and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication Data De Ville, Jacques. Jacques Derrida : law as absolute hospitality / Jacques de Ville. p. cm. Includes bibliographical references. 1. Law–Philosophy. 2. Derrida, Jacques. 3. Law–Interpretation and construction. 4. Deconstruction. I. Title. K232.F7D4 2011 340′.1–dc22 2010054210 ISBN 13: 978-0-415-61279-1 (hbk) ISBN 13: 978-0-203-80947-1 (ebk) Typeset in Times New Roman by Graphicraft Limited, Hong Kong Contents Acknowledgements vii List of abbreviations ix 1 Introduction 1 Dominant readings of Derrida in the legal context 2 Derrida and the metaphysics of presence 13 Title and series 37 Sequence and overview of chapters 40 2 Declarations of independence 43 Speech acts: founding a state 45 Representation 57 The signature 60 The proper name 67 Beyond sovereignty 72 3 Before the law 74 Freud’s Totem and Taboo 75 Lévi-Strauss on totemism and the prohibition of incest 77 Derrida on Lévi-Strauss 81 Before the law 84 Originary guilt and parricide 92 4 Madness and the law 95 Cogito and the history of madness 96 Doing justice to Freud 107 Law and madness 111 vi Contents 5 The gift beyond exchange 113 Heidegger and metaphysics 114 Mauss’s The Gift 122 Derrida on the gift 125 The gift, time and law 138 6 Force of law 141 Justice, singularity and the event 141 Undecidability 150 The ‘mystical foundation of authority’ 153 Repetition and law-enforcing violence 158 ‘Applying’ justice 162 7 The haunting of justice 165 Heidegger’s reading 166 Derrida’s reading 181 The revolution 191 8 Hospitality towards the future 192 Rethinking conceptuality 194 Law, politics and hospitality 196 Legal philosophers of a new species 197 Bibliography 200 Index 214 Acknowledgements This book would not have been possible if it were not for the support and encouragement of a number of people through the years. These include: Paul Cilliers and Johan van der Walt who awakened an interest in Derrida’s thinking in me. Chris Pettty who introduced me to psychoanalysis. Lourens du Plessis who introduced me to academic writing and who has supported me in many ways since. Nico Steytler – mentor, colleague and friend – who helped me with the for- mulation of the title of this book. Costas Douzinas and Anne Wagner who supported the publication of my work in recent years. Colin Perrin, for his enthusiasm in relation to the present publication, as well as the assistance of Melanie Fortmann-Brown. Colleagues and friends to whom I am grateful for their insight and support, in the past, more recently, or over the years: Porchia Adonis, Riccardo Baldissone, Jaco Barnard, Oren Ben-Dor, Narnia Bohler-Muller, Anél Boshoff, Henk Botha, Jan Botha, Danie Brand, Jan Broekman, Cosmin Cercel, Emilios Christodoulidis, Carol Clarkson, Pierre de Vos, Peter Fitzpatrick, Danie Goosen, Marian Hobson, Frans Jacobs, Makoto Katsumori, Michael Krennerich, Irma Kroeze, Wessel le Roux, Susanna Lindroos, Cees Maris, Panu Mink- kinen, Gerhard Mostert, Michael Naas, George Pavlich, Linnell Secomb, Carles Serra, Thomas Smit, Elina Staikou, Gavin Sullivan, Philippe van Haute, Karin van Marle, André van der Walt and Dimitris Vardoulakis. My colleagues at the University of the Western Cape Law Faculty. Lynn Thomas and Hazel Jeftha for invaluable administrative assistance. The Dean of Law, Julia Sloth-Nielsen for her support. My parents, as well as my wife Phoebe, and my daughter Zanél, for their love and encouragement. The biggest part of the research for this book was conducted in Germany with the fi nancial assistance of the Alexander von Humboldt Foundation viii Acknowledgements from January 2007 to July 2008. Francois Venter, David Dyzenhaus, Hennie Strydom, Derek van der Merwe, Lourens du Plessis and André van der Walt need to be thanked for their support. Gratitude is further expressed to Ms Britta Krämer from the foundation as well as to my host, Prof. Dr Folke Schuppert, and his assistants Kristina Kühl and Florian Meinel. The South African National Research Foundation has generously funded my research over the past few years. Some of the material presented in this book has been revised and rewritten from essays published elsewhere. Chapter 2 was previously published as (2008) ‘Sovereignty without sovereignty: Derrida’s Declarations of Independence’, Law and Critique, 19: 87–114, and a shorter version thereof appeared in (2010) C. Barbour and G. Pavlich (eds) After Sovereignty: On the Question of Political Beginnings, London and New York: Routledge, 54 – 67. Chapter 3 was previously published as (2011) ‘On law’s origin: Derrida reading Freud, Kafka and Lévi-Strauss’, Utrecht Law Review, 7: 77– 92. Chapter 4 was pre- viously published as (2010) ‘Madness and the law: the Derrida/Foucault debate revisited’, Law and Critique, 21: 17–37. Chapter 5 was previously published as (2010) ‘The gift and the meaning-giving subject: a reading of Given Time’, in A. Wagner and J. Broekman (eds) The Prospects of Legal Semiotics, Dordrecht: Springer, 79–105. Chapter 6 was previously published as (2009) ‘Desire and language in Derrida’s “Force of law”’, Archiv für Rechts- und Sozialphilosophie, 95: 449–73. Chapter 7 was previously published as (2009) ‘Rethinking the notion of a “higher law”: Heidegger and Derrida on the Anaximander fragment’, Law and Critique, 20: 59–78. I thank the publishers for permission to use these texts. List of abbreviations For ease of reference, the following abbreviations are used for the texts of Derrida. Full references are given in the Bibliography. A Adieu: To Emmanuel Levinas (1999) AF Archive Fever: A Freudian Impression (1995) ‘Ai’ ‘As if I