Derrida Dead and Alive

Jacques Derrida died last month, and while his contribution to philosophy remains limited and controversial, there is one area in which his influence has been profound – American law.The philosophy of Derrida (“deconstruction”) came into prominence in the late 1960s and early 1970s, and from this emerged in American law schools what came to be known as the Critical Legal Studies movement. That movement was to affect the thinking, consciously and unconsciously, of an entire generation of law students – students who now comprise the upper strata of legislators, judges, legal scholars, and attorneys in this country.The vulgarized lesson of deconstruction was that language was contingent: Detached from truth, words were wholly the shifting product of social and historical forces.No longer was language to be viewed as a collection of neutral signs that reflected an objective reality; instead, language advanced the interests of those who wrote and interpreted it.From this, the Critical Legal Studies movement drew the conclusion that the language of statutes and judicial decisions could no longer be trusted and that even if the hidden assumptions of the law were identified and the laws rewritten, there was no way of trusting the new law, given the inherent limitations of language as set forth by Derrida (i.e., that language can never attach to reality or transcendent truth).It is this distrust for the law, this nihilism, that has led those lawyers who were once students in law schools that promoted deconstruction – and who are now in positions to write and interpret the law – to defy precedent, to willingly advance legal claims that are at odds with the interests of society, and to promote unquestioningly the agenda of those who pay their salaries.But if legal nihilism is a problem, it is hardly the fault of Derrida. Derrida’s views on the law are complex and ambiguous, and, as a number of authors have pointed out, framed by moral concerns, specifically the idea that deconstruction is an avenue toward a more just society.Madeliene Plasencia, in her article on Derrida, quotes this passage from Derrida’s essay “Force of Law: ‘The Mystical Foundation of Authority'”: “Justice is what gives us the impulse, the drive, or the movement to improve the law, that is, to deconstruct the law. Without a call for justice we would not have any interest in deconstructing the law.”Similarly, J. M. Balkin, in defending deconstruction, states: “Deconstruction is not a denial of the legitimacy of rules and principles; it is an affirmation of human possibilities that have been over looked or forgotten in the privileging of particular legal ideas.”The problem of lawyers and judges (both conservative and liberal) who have little or no respect for the law lies with the law schools of this country.By any academic measure, law school education is laughable and it is laughable from the top to the bottom of the hierarchy of law schools.Part of this is that those who teach at law schools have had no graduate training other than law school (where, it should be added, there is no requirement of sustained reflection and writing on a particular topic) and thus lack the intellectual substance or inclination to rigorously examine the work of philosophers, economists, or political scientists.As a result, law professors tend to grab hold of philosophical movements (such as deconstruction) with an enthusiasm and misunderstanding that comes from having no critical, intellectual basis from which to judge them. Law schools thus become museums for theories from other fields (philosophy, economics, political science) that have long since been rejected by those within the field that gave rise to the theory.If this is to be corrected, law schools should require two semesters of legal philosophy and also require that those who teach these courses have a doctorate in philosophy. In this way, deconstruction can be taught but with the complexity that it deserves and in the context of other theories of the law that represent opposing approaches.The response to this, as is often voiced, is that law schools are not serious graduate programs but rather technical schools. If that is so, then they are, by all studies of the subject, incompetent at that as well. In any case, lawyers are now too influential in our society to allow law schools to be as intellectually slothful as they currently are. Mr. Rips, who was a law clerk to Justice Brennan, practiced law in New York. His book, “The Face of a Naked Lady: An Omaha Family Mystery,” will be published in the spring of 2005 by Houghton Mifflin.

Derrida Dead and Alive

Derrida Dead and Alive

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