Derrida's Territorial Knowledge of Justice

Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or decomposition of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick’s articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida’s theory of laws as universals and with Derrida’s theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official’s decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call ‘individuality’. Derrida’s theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida’s theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law’s legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signified or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida’s theory of law. I claim that this rupture permeates Derrida’s writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick’s exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida’s legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida’s legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge

Which Takes Precedence: Collective Rights or Culture?

This Paper claims that, contrary to the common assumption of Anglo-American jurists, collective rights are secondary to a analytically and experientially prior culture. Culture constitutes the identity and content of a collective right. The thrust of my Paper examines the disjunction between collective rights and the culture constituting a collective right. The clue to the disjuncture is that a collective right is assumed to be a rule or principle signified or represented in a written language. A rule or principle is a concept. A culture, in contrast, is constituted from an experiential knowledge in an unwritten language. I raise two contexts where a collective right cannot be identified without a consideration the analytically prior culture of the social group protected by a collective right: peremptory norms in international law and affirmative discrimination clauses in constitutional law. I then highlight a crucially important factor generating the unwritten language of a culture: namely, the collective memories of a group. Although a personal memory is experienced in a context-specific event, a member of a group absorbs its collective memory. The collective memory of the group exists before one is a member. Such a memory may defer to some event centuries earlier. The event may possess a mythic or even false character which cannot be verified except as a myth or historical falsity. One cannot be accepted as a member of a group without the group’s collective memory. Shared assumptions and expectations characterise a collective memory generating a culture. Such assumptions and expectations constitute meant objects. Meant objects are not posted by some source 2 external to the individual members. Meant objects are experienced. A jurist cannot analyze the signified collective rights without examining the social culture said to be represented by the boundary of the collective rights. One may be able to rationally justify a collective right in terms of its source, such as a basic constitutional text, the regularity of behaviour of lawyers and judges or some ultimate concept such as dignity. Such a rational justification, however, does not address why an individual is obligated to defer to the collective rights of an in-group in a state. One has to examine the social-cultural assumptions and expectations presupposed in the content of such collective rights in order to understand why the rights are obligatory. Such an examination dissolves the traditional boundary of legal knowledge which has excluded cultural phenomena generating the collective rights

Human Rights and the Forgotten Acts of Meaning in the Social Conventions of Conceptual Jurisprudence

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law

Municipal Corporations—Liability for Police Negligence—Duty to Protect Informers

Municipal Corporations—Liability for Police Negligence—Duty to Protect Informers (Schuster v. City of New York, N.Y. 1958

Landlord and Tenant—Waste—Implied Covenant Restricting Use of Premises

Landlord and Tenant—Waste—Implied Covenant Restricting Use of Premises (Turman v. Safeway Stores, Inc.

Montana Constitution—State Debt Limit—Submission to the People

Montana Constitution—State Debt Limit—Submission to the People (Cottingham v. State Board of Examiners, Mont. 1958

Chaos For the Halibut?

A generalized method for analyzing stability potential in discrete time renewable resource models subject to market-driven harvest is discussed. Two means by which harvest activity can influence dynamical properties of renewable resource models are identified: the "growth factor" and the "market response effect". The growth factor is a systematic influence on stability tied to changes in the position of the bioeconomic equilibrium point along a given open access supply locus. The market response effect involves variation in harvest in response to stock level changes. The analysis is applied to a model of the Pacific Halibut Fishery: a modified discrete-time version of the traditional Schaefer model. In order to investigate potential instability, we vary certain parameters of the model and study the resulting effects on stability. We find that enhancing harvest response by changing the slope of the demand schedule can thrust the model into instability, chaos, and extinction, without changing the bioeconomic equilibrium point for the Pacific Halibut Fishery Model. We also show that enhancing harvest response via slope preserving increases in market demand can push the model into instability, chaos, and even extinction. Finally, we show that similar adjustments in market demand may be capable of eliminating instability and chaos rooted in powerful intrinsic growth of the stockStability Analysis, Chaos, Open-Access Fisheries, Renewable Resource Models., Environmental Economics and Policy, Production Economics,

The Constitutional Prism of Louis-Philippe Pigeon and Jean Beetz

Après avoir expliqué ce qu'il entend par notion de constitution (“image of a constitution”, l'auteur examine les écrits judiciaires et doctrinaux des juges Pigeon et Beetz dans le but de voir quelle idée l'un et l'autre se faisaient de ce qu'est une constitution. Ces écrits, selon lui, se fondent sur des conceptions articulées du rôle des textes comme source du droit, du rôle des normes comme prétention de départ de l'analyse constitutionnelle, du rôle scientifique du juriste et, enfin, des positions respectives des différentes règles de droit. L'auteur conclut que cette façon de voir s'inscrit à l'intérieur d'une conception globale du droit dont les tenants et aboutissants n'ont jamais été vraiment étudiés.After introducing the concept of an "image of a constitution", Mr Conklin examines the federalism writings and judgments of Justices Pigeon and Beetz with a view to identifying the bounderies of their respective concepts of a constitution. He argues that their writings presuppose coherent answers to such boundaries as the role of a text as the primary source of law, the posited character of rules, rules as the starting point of constitutional analysis, the scientistic role of a lawyer, and a horizontal / vertical spectrum of posited rules. Mr. Conklin claims that their understanding of law collapses into a more primordial image of law whose boundaries we have for too long left unexamined

A Practical Legal Education

One of the central issues in regard to legal education during the past half century has been whether law faculties ought to have a theoretical or practical character. The debate has been an intense one. It has taken on many forms and grown from many diverse circumstances. Law societies periodically resurrect the issue. Professional law faculties interminably debate it. Positions are taken, factions are formed, and the unresolved outcome of the debate has left curriculum and initial assumptions relatively unchatged. This essay questions one of the most important assumptions of that debate - namely, that a practical legal education is a non-evaluative, non-philosophical one. Sometimes a practical legal education is conceived to be non-philosophical in that it is believed to be bound up with the discovery of legal rules as opposed to some normative evaluation of those rules. More recently, a practical legal education has been conceived to be non-philosophical in that it has been believed to be bound up with experience (most notably presumed to be found in a law clinic). And experience has been bound up with feelings or preferences rather than ideas