Jacques Derrida: Law as Absolute Hospitality

233 Pages·2011·1.234 MB·English

by  Jacques de Ville

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: ACritical Appraisal, Michael Head
GiorgioAgamben:Power,LawandtheUsesofCriticism,ThanosZartaloudis
Forthcoming titles in the Series
Carl Schmitt: Law as Politics, Ideology and Strategic Myth, Michael Salter
Henri Lefebvre:CriticalLegalStudiesand thePoliticsofSpace,ChrisButler
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 were dead: an interview with Jacques Derrida’, in Applying:
To Derrida (1996)
AIA The Animal that Therefore I Am (2008)
AL Acts of Literature (1992)
‘AO’ ‘Abraham, the Other’, in Judeities: Questions for Jacques Derrida
(2007)
Ap Aporias (1993)
AR Acts of Religion (2002)
BS The Beast and the Sovereign, vol. I (2009)
‘CC’ ‘Composing “Circumfession”’, in Augustine and Postmodernism
(2005)
CF On Cosmopolitanism and Forgiveness (2001)
‘CIP’ ‘A certain impossible possibility of saying the event’, Critical
Inquiry (2007)
DCC ‘Dialogue with Jacques Derrida’, in Dialogues with Contemporary
Continental Thinkers: The Phenomenological Heritage (1984)
Dem The Instant of My Death/Demeure: Fiction and Testimony, with
Maurice Blanchot (1998)
Dis Dissemination (2004)
‘E&F’ ‘Epoché and faith: an interview with Jacques Derrida’, in Derrida
and Religion: Other Testaments (2005)
EO The Ear of the Other (1988)
ET Echographies of Television, with Bernard Stiegler (2002)
Fors ‘Foreword: Fors: the anglish words of Nicolas Abraham and
Maria Torok’, in The Wolf Man’s Magic Word: A Cryptonomy
(1986)
‘FT’ ‘Following theory’, in Life After Theory (2003)