Fraser, Nancy

English

LARC Cardoso Law (Yeshida Univ)

THE FORCE OF LAW: METAPHYSICALOR POLITICAL?Nancy Fraser*In Part One of his essay, Force of Law: The "Mystical Foundationof Authority,"' Jacques Derrida distinguishes two different ways ofthinking about the relations between force and law, and justice andviolence. The first approach, styled "critique," exposes the ideologi-cal, superstructural nature of law by showing that it operates in theservice of social, economic, and political forces that are posited asexternal and prior to the law.2 The second approach, in contrast,styled "deconstruction," addresses a relation between violence andlaw that is held to be more "intrinsic," "internal," and "complex,"since it uncovers "the origin of authority, the foundation or ground,the position of the law" in a "violence without ground." 3 In Der-rida's view, the second, deconstructive approach is the preferred one;it penetrates deeper than the critical approach to the heart of the rela-tion between violence and law.4That valuation is also presupposed in the title of the present sym-posium. Inviting reflection "On the Necessity of Violence for AnyPossibility of Justice," this title characterizes the relationship betweenviolence and justice as one of necessity as opposed to contingency.Consequently, it suggests that violence cannot fail to be implicated inany possible legal institution in any possible society, thereby insinuat-ing, at least to my ear, that it would be folly to aspire to eliminate it.Finally, the symposium title implies that the level at which violence isimplicated in law is very deep; the suggestion is that violence consti-tutes the enabling ground or condition for the possibility of justice.Together, these presuppositions entail that the relationship of justiceto violence needs to be approached by means of a transcendental in-quiry. To be sure, this will be a negative or quasi-transcendental in-quiry, since it turns out in deconstructive thought that the ground inquestion is precisely an Abgrund (abyss). Nonetheless, the fact re-mains that quasi-transcendental reflection on violence as a necessary* Associate Professor of Philosophy and Research Faculty, Center for Urban Affairs andPolicy Research, Northwestern University.I Derrida, Force of Law: The "Mystical Foundation of Authority," 11 CARDOZO L. REV.919 (1990).2 Id. at 940-41.3 Id. at 943.4 Id. at 942-45.1325CARDOZO LAW REVIEWcondition for justice will take precedence over critical forms of in-quiry. Attempts to understand the relationship of violence and lawthrough, say, critical social theory, political sociology, or culturalstudies will be deprivileged as merely empirical and hence, compara-tively superficial.I have argued elsewhere that those versions of Deconstructionthat privilege the transcendental, even in this qualified form, incur adisability when it comes to thinking politically.' My argument is notthe usual complaint that Deconstruction leads to nihilism, immoral-ity, or amorality. That complaint assumes that a quasi-transcendentaldeconstructive reflection can entail a normative orientation, an as-sumption I reject. Actually, insofar as quasi-transcendental reflectionpertains to the conditions that enable any possible practices and insti-tutions, it cannot tell us much about which of those possible practicesand institutions are morally defensible; nor can it tell us what moralattitude we should adopt toward actually existing practices and insti-tutions. Thus, the standard objection to Deconstruction fails. How-ever, this will provide only limited comfort to those who defend quasi-transcendentalized versions of Deconstruction, since the argumentcuts two ways. It tells equally against any defense of Deconstructionalong the following lines: Contrary to those who think Deconstruc-tion entails nihilism, precisely the reverse is true. What is reallyentailed by the radical ungroundedness of judgment is a paradigmati-cally ethical disposition: a heightened sense of responsibility, an ex-hortation to vigilance, and a commitment to the future that is all themore ethically intense for its lack of guarantees.6 This response isentirely on a par with the original objection. It, too, supposes thepossibility of deriving a normative conclusion from a quasi-transcen-dental premise. It, too, therefore, is unsound.Thus, the argument about whether Deconstruction entails nihil-ism or an ethics of responsibility ends in a stalemate. So long as thediscussion remains on this plane, it cannot be resolved. More gener-ally, so long as Deconstruction remains committed to privileging evennegative transcendental reflection, so long as it continues to concen-trate its efforts on disclosing the prior, enabling Abgrund behind everymerely critical normative judgment about every merely ontic state ofaffairs, it will never get to ethics or politics. For, as Aristotle under-5 N. FRASER, The French Derrideans: Politicizing Deconstruction or Deconstructing thePolitical?, in UNRULY PRACTICES: POWER, DISCOURSE, AND GENDER IN CONTEMPORARYSOCIAL THEORY 69 (1989).6 Derrida's essay contains one version of this defense. See Derrida, supra note 1, at 960-69. For another version, see Cornell, Time, Deconstruction, and the Challenge to Legal Positiv-ism: The Call to Judicial Responsibility, 2 YALE J.IL. & HUMAN. 267 (1990).1326 [Vol. 13:1325METAPHYSICAL OR POLITICAL?stood, politics is a matter of just those contingent but warrantablenormative judgments about just those historically and culturally vari-able practices and institutions that negative transcendental reflectionseeks to get behind.7 To assume, therefore, as Derrida does in hisessay, that Deconstruction must get beneath critique to a deepermode of negative transcendental reflection, is to disable or impede thepossibility of political thought about the relation between violence andlaw.I want to illustrate this claim by contrasting two ways of under-standing "the force of law." In Derrida's terms, these two ways are"deconstruction" and "critique." However, in my view, the crucialissue that divides them is: What is the nature of "the force of law"? Isthat "force" metaphysical or political?In Derrida's deconstructive account, "the force of law" inheresmost elementally in the ungroundedness of the judge's judgment.'Legal judgment, in his view, is necessarily underdetermined at themoment of decision, however persuasively it may be justified ex postfacto. Judging, therefore, can never be "calculation" but always in-volves a "leap." 9 It is here, in the "madness" or "mystique" of aradical freedom,' 0 that the "violence" of legal judgment resides. "Theforce of law," then, is inscribed in the deep structure of judgment. Itis not a matter of contingent institutions or social relations that couldin principle be altered.There are three things worth noting about this account of "theforce of law." The first is the unnecessarily paradoxical character ofthe discussion of judgment. Derrida goes too quickly from the uncon-troversial claim that judgment is not calculation to the hyperbolicand, I think, indefensible claim that it is "madness," "mystique," and"violence." There is no discussion of intermediate positions, such asthose derived from the Aristotelian conception of phronesis, whichunderstand judgment as neither the application of an algorithmic de-cision procedure nor the exercise of an irrational will. Because hefails to consider alternatives like these, which give nonaporetic ac-counts of noncalculative judgment, Derrida fails to justify his claimthat judgment is shot through with aporias." On substantivegrounds, then, his account is flawed.This substantive flaw in Derrida's account of judgment finds ex-7 ARISTOTLE, Politics Book I, in THE WORKS OF ARISTOTLE (B. Jowett trans. 1921).8 See Derrida, supra note 1, at 960-69.9 Id. at 960-63.10 Id. at 967 ("The instant of decision is a madness, says Kierkegaard.").II Id. at 960-69.1991] 1327CARDOZO LAW REVIEWpression in a second problem at the level of his rhetoric. Why stylizeas "force" or "violence" the fact that judging escapes calculation?This choice of word is troubling, regardless of whether we prefer tothink of judging as phronesis or as "madness." It ups the rhetoricalante too quickly and risks the loss of important normative politicaldistinctions by conflating a view about the (presumably inescapable)interplay of freedom and constraint in interpretation with (contin-gent, alterable) modes of individual and institutional coercion.This brings me to my third and most serious objection to Der-rida's account of "the force of law." His account directs our attentionto a level of so-called "violence" in law that is constitutive and ines-capable.1 2 This is a "violence" that can in no meaningful sense becalled "political," since it is independent of any specific institutionalor social arrangements and since it is not subject, even in principle, tochange. Thus, "the force of law" in Derrida's account is essentiallymetaphysical.Let me contrast that view to an alternative approach that wouldunderstand "the force of law" as political. This would be an ap-proach that would locate law's force in contingent social relations andinstitutionalizations of power. It would foreswear quasi-transcenden-tal reflection on the "violence" that must inhere in any possible legalinstitution in favor of analysis and (mere) critique of the forms ofmasked, structural violence that enter into social processes of judgingin, for example, our legal system. I specify the object of critique as"forms of masked, structural violence" because these-as opposed tothe overt, punctual violence of criminals, armies, and police-are themost difficult and most important to understand. Included here are arange of deadly systemic social processes, responsibility for whichcannot easily be attributed to identifiable individual agents, but whichculminate in massive harms such as malnutrition, medical neglect,and environmental toxicity.A political critique of the "force of law" would seek to identifythe various levels at which masked, structural violence enters into ourinstitutionalized practices of legal judgment. Let me suggest threesuch levels that merit critical scrutiny. The first is the level of thebasic constitutional principles that constrain legal interpretation. Inmany cases, these constitutional principles are uncontroversial andunproblematical, at least as abstractions, but in some cases, they arenot. The most problematical case seems to me to be the entrenchedcentrality of the principle of property right in our constitution. I am12 Id. at 942-43.1328 [Vol. 13:1325METAPHYSICAL OR POLITICAL?.not talking about the right to personal property, but rather aboutwhat we used to call in the old days "private property in the means ofproduction." To be sure, that discourse has lost its cultural legiti-macy, but the problem it names has not gone away. It is still possiblein our legal system for small numbers of people to make decisionswith impunity that imperil the health and livelihood of many others,while degrading the quality of life of everyone. Thus, one task for apolitical critique of "the force of law" would be to show how an appa-ratus of legal judgment can be a vehicle for the operation of masked,structural violence when it is constrained by constitutional principleto protect private property in the means of production.A second level for critique is the deep grammar of our legal rea-soning. One salient feature of this deep grammar is evident in the factthat in our legal system it is exceedingly difficult, indeed often impos-sible, to press claims for harms one has suffered by virtue of belongingto a social group. In contrast, it is comparatively easy to press claimsin cases where the parties are identifiable individuals and the allegedharm is the result of a breach of contract or other definite assignableobligation. Thus, the deep grammar of our legal reasoning is individ-ualistic. Problems arise, however, insofar as the legal grammar of in-dividualism is seriously out of phase with the nature of our socialsystem. In our social system, a great deal of harm does not take theform of individuals ripping off individuals but is rather a result ofmore impersonal systemic processes and of structural relations amongdifferentially advantaged social groups. This sort of harm, however,is not usually legally admissible. In fact, the deep grammar of indi-vidualist justice presents obstacles to anyone who seeks judicial stand-ing to claim that a systemic injustice has occurred. Thus, even beforelegal judging officially begins, there has already been an operation ofprejudgment that has severely restricted the scope of the judge-able.This prejudgment, which embodies the individualist, deep grammar ofour legal reasoning, is itself a form of masked, structural violence inthe law. A political critique of "the force of law" would theorize andname it as such.13Finally, there remains a third level at which a political critiquecould unmask the "force of law." This is the level of cultural back-ground. When people make judgments, when they weigh the evidenceand decide which principle applies and which precedent is applicable,they do so against a background of cultural assumptions. Whether we13 For a book that I consider a model of this sort of critique, see generally P. WILLIAMS,THE ALCHEMY OF RACE AND RIGHTS (1991). Interestingly, Williams uses deconstructivetechniques in the service of critical, as opposed to quasi-transcendental, reflection.1991] 1329CARDOZO LAW REVIEWare talking about professional judges or ordinary citizens serving onjuries, there are necessarily many such assumptions in play. Back-ground assumptions-for example, about human nature, the causes ofpoverty, what counts as work, and proper gender roles-constitutethe inescapable horizon of any judgment. Yet, in a society that isstratified by gender, color, and class, many of the most culturally au-thoritative and widely held assumptions about such things work tothe disadvantage of subordinated social groups. They are themselves,therefore, aspects of the sociocultural structure of injustice. Whenthey serve as elements of the tacit backdrop against which foregroundlegal judgments are made, they, too, become part of "the force oflaw."' 14A good example of this is the congeries of androcentric assump-tions that has led many judges and juries to reject self-defense as alegal defense in cases where women are accused of attacking or killingmen who have battered them over a period of many years. It has beenassumed that any legitimate act of "self-defense" must occur in theheat of an assault and cannot involve use of a deadly weapon againstan assailant who has used "only" his fists. Yet surely those assump-tions are premised on a model of male aggression that is seriouslyaskew of many women's socialization and experience with violence.15To the degree that such androcentric assumptions about self-defensepermeate the horizon of judgment in cases involving battered women,the "force of law" will come down with a thud on the side ofpatriarchy.Let me conclude by summarizing this portion of my argumentand connecting it to what went before. I have outlined three aspectsof a political critique of "the force of law." In every case, the task ofcritique is to render visible forms of masked, structural violence thatpermeate, and infect, legal judgment. But the legal judgment that isthe object of this critique is not any possible legal judgment whatso-ever. Rather, it is a specific, institutionalized regime of justice reason-ing situated in a specific, structured, sociocultural context. The pointof a political critique of "the force of law," then, is not to identifyforms of "violence" that are "necessary for any possible justice"; it isto identify forms of violence that are precisely not necessary.The value of identifying unnecessary, "surplus" violence that isrooted in unjust and potentially remediable social arrangements is, I14 Again, the outstanding exemplar is P. WILLIAMS, supra note 13.15 See Schneider, The Dialectic of Rights and Politics. Perspectives from the Women's Move-ment, 61 N.Y.U. L. REV. 589, 642-48 (1986) (argument that issues of sexual harassment andlegal protection for battered women emerged from feminist thinking of the 1970s).1330 [Vol. 13:13251991] METAPHYSICAL OR POLITICAL? 1331hope, obvious. This, after all, is the sort of violence we might aspireto eliminate or reduce. And that aim in the end is what dictates myown sense of priorities. To put the matter bluntly: it seems to me tohave matters precisely backwards to claim priority for a quasi-tran-scendental Deconstruction of "the force of law" over a "merely"political critique.

The Force of Law: Metaphysical or Political?

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The Force of Law: Metaphysical or Political?

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LARC Cardoso Law (Yeshida Univ)