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1693


SCHMITTIAN POSITIONS ON LAW AND
POLITICS?: CLS AND DERRIDAon P. McCormick*


INTRODUCTION
The resurgence of interest in Carl Schmitt over the last fifteen
years has sparked scholarly examinations not only of Schmitt
himself, but, naturally, of those thinkers or schools of thought that
Schmitt influenced as well. As the title of this conference suggests,
this examination has involved not only an analysis of Schmitts
thought, but also of his legacy. Schmitts legacy continues to be a
fruitful line of inquiry, considering the many important postwar
intellectuals who openly acknowledged his influence on their
thinking and also, perhaps, the many more who neglected to do so
for obvious reasons.
An alternate way of thinking about Schmitts legacy entails
the exploration of affinities between Schmitt and others who were
not necessarily influenced by him directly. This essay follows such
an approach. I examine the extent to which two examples of very
broadly defined poststructuralist legal theory share categories of
thought with Schmitt: the North American progressive movement
in legal scholarship, Critical Legal Studies (CLS), and the
landmark legal treatise of Jacques Derrida, Force of Law.1
Critics often dismiss poststructuralism on the grounds that it
promotes nihilism and, subsequently, authoritarianism all too
= Paper prepared for presentation at the conference, Carl Schmitt: Legacy and
Prospects, held at Columbia University and Cardozo Law School, 23-25 April 1999.
Portions of Part I of this essay are drawn from John P. McCormick, Three Ways of
Thinking Critically About the Law, 93 AM. POL. SCI. REV. 413-28 (1999). Part II was
composed especially for the occasion.
* John P. McCormick (AB, 1988, Queens College, CUNY; Ph.D., 1995, University of
Chicago) is an assistant Professor of Political Science, Yale University. He is the author of
CARL SCHMITTS CRITIQUE OF LIBERALISM: AGAINST POLITICS AS TECHNOLOGY
(1997), as well as articles on legal, political and social theory in journals such as the
AMERICAN POLITICAL SCIENCE REVIEW and POLITICAL THEORY, and the editor of, and
contributor to, the volume, CONFRONTING MASS TECHNOLOGY AND MASS
DEMOCRACY: ESSAYS IN TWENTIETH CENTURY GERMAN POLITICAL AND SOCIAL
THOUGHT (forthcoming 2000).
1 Jacques Derrida, Force of Law: The Mystical Foundations of Authority, in
DECONSTRUCTION AND THE POSSIBILITY OF JUSTICE 3-67 (1992).
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similar to the ones harbored and espoused by Schmitt, even if
poststructuralists do so in a different manner than he didthat is,
naively and with progressive intent. Part I of this essay confirms
the seriousness of this charge against poststructuralist thought in
the form of CLS. Part II, however, suggests that there are vast
differencesdifferences too often overlooked by criticsbetween
a philosophy of law such as Derridas and that of Schmitt.
I. CLS: INDETERMINACY AND THE SPECTER OF COERCIVE LAW
A. Legal Indeterminacy
CLS has gained influence by advancing the argument that the
fundamental indeterminacy of law exposes the arbitrary nature of
legal adjudication, and provides occasion for more liberating
strategies pertaining to law and social justice. In the ultimate lack
of congruence between juridical rules, and the social situations to
which they are applied, CLS posits a moment of opportunity to
address injustices generated by society that are ignored, or
perpetuated, by the law.2 Through such an approach, CLS,
radically progressive in its self-understanding, seeks to unmask
every hypocrisy of the liberal rule of law, deconstruct all of its
hegemonic structures, and, sometimes, ultimately trash it,
wholesale, in favor of a more truly democratic approach to law.3
But perhaps no one in any century has brought attention to
indeterminacy, gaps in statutory law and exceptions in
constitutional law, to the level of high theory as strikingly as did
Weimar reactionary lawyer, and eventual Nazi, Carl Schmitt.4 The
Schmitt example suggests that the ramifications of celebrating
legal gaps and exceptions, and of focusing extensively on
indeterminacy, are not necessarily liberating.
2 See ROBERTO M. UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT (1986)
[hereinafter UNGER, CRITICAL LEGAL STUDIES]; ROBERTO M. UNGER, WHAT SHOULD
LEGAL ANALYSIS BE LIKE? (1996); Duncan Kennedy, Psycho-Social CLS, 6 CARDOZO
L. REV. 1013-31 (1985); Mark Tushnet, Critical Legal Studies: An Introduction to Its
Origins and Underpinnings, 36 J. LEGAL EDUC. 505-17 (1986); Mark Tushnet, Critical
Legal Studies: A Political History, 100 YALE L.J. 1515-44 (1991) [hereinafter Tushnet, A
Political History].
3 See ANDREW ALTMAN, CRITICAL LEGAL STUDIES: A LIBERAL CRITIQUE (1990);
PETER FITZPATRICK & ALAN HUNT, CRITICAL LEGAL STUDIES (1987); MARK
KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES (1987).
4 See PETER C. CALDWELL, POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN
CONSTITUTIONAL LAW: THE THEORY AND PRACTICE OF WEIMAR
CONSTITUTIONALISM (1997); JOHN P. MCCORMICK, CARL SCHMITTS CRITIQUE OF
LIBERALISM: AGAINST POLITICS AS TECHNOLOGY (1997).
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B. Formalism and Indeterminacy
According to Schmitt, liberalisms theory of law, including
legal positivism, is deluded by a notion of the law as a closed,
highly formal, vaguely machine-like system.5 In this system, cases
are decided logically by applying the correct rule to the facts at
hand. I accept for purposes of argument, both Schmitts and CLSs
collapsing of legal liberalism and legal formalism.6 CLS scholars,
most prominently Roberto Unger and Duncan Kennedy, criticize
formalism in the liberal rule of law, because it upholds dominant
ideologies that reinforce existing hierarchical relations of
inequality. On the other hand, Schmitt criticizes legal formalism,
ostensibly, only on functional grounds. CLS criticizes liberal law
as the mask behind which hide the ideological function of judicial
and state administrative officers.7 Schmitt, however, criticizes legal
formalism because it hampers the effective workings of judges
and the state.
In the 1920s, Schmitt criticized liberal legal theory for
avoiding the reality of jurisprudence by denying the existence of
gaps within the lawnamely, the fact that the formal rules of
statutory law cannot possibly cover all instances of concrete
reality. First, liberalism demotes judges to the status of mere
vending machines that mechanically dispense the law upon cases,
without intellectual reflection or active contribution. Second,
liberalism leaves the legal theorist inadequately equipped to
analyze exactly how the law is applied. According to Schmitts
decisionist alternative to liberalism, only a person, not a rule
within a larger system, can determine how to enforce or realize the
law. Purely formal jurisprudence endangers the personality of
the judgehis or her ability to engage in the concrete particularity
of a given case by confining him or her to the mechanical
application of a pre-given statute. For Schmitt, between the law
5 CARL SCHMITT, LEGALIT?T UND LEGITIMIT?T (1988) [Legality and Legitimacy];
CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF
SOVEREIGNTY (George Schwab trans., 1988) [hereinafter SCHMITT, POLITICAL
THEOLOGY].
6 See DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION: FIN DE SICLE (1997);
ROBERTO M. UNGER, LAW IN MODERN SOCIETY (1976); UNGER, CRITICAL LEGAL
STUDIES, supra note 2; Duncan Kennedy, Legal Formality, 2 J. LEGAL STUD. 351 (1973).
7 See ROBERTO M. UNGER, KNOWLEDGE AND POLITICS (1975); Duncan Kennedy,
Distributive and Paternalistic Motives in Contract and Tort Law, 41 MD. L. REV. 563
(1981-82) [hereinafter Kennedy, Distributive and Paternalistic Motives]; Duncan Kennedy,
Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976)
[hereinafter Kennedy, Form and Substance]; Duncan Kennedy, Toward an Historical
Understanding of Legal Consciousness: The Case of Classical Legal Thought in America,
1850-1940, 3 RES. LAW & SOC. 3 (1980).
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and concrete reality there will always be a gap that must be
mediated by a judge. This is the humanity or life of the law.
According to Schmitts account, liberal jurists, such as Hans
Kelsen, refuse to acknowledge anything but formal imperatives in
adjudication.8 Moreover, they pretend that the law is applied
consistently and appropriately most, or all, of the time.
CLS ultimately indicts postwar North American liberal
adjudication on the same grounds. Less concerned with
metaphysical assertions about juridical reality or life than
Schmittindeed, questioning the very existence of such
phenomenaCLS points primarily to the uncertain nature of
meaning in language as the source of the indeterminacy of
deciding cases. Legal rules are so far from clear, regarding where
and how they should be applied, that there is no possibility of their
being applied consistently or objectively. According to CLS, this
lack of determinacy shakes the very foundations of liberal
formalist notions of efficiency and justice. As a result, both
Schmitt and CLS conclude that, to some extent, judges make the
law. The difference is that CLS wishes to expose the subjective
decision-making that goes on behind the supposedly objective
formal rule of law, in order to undermine the generally
conservative rulings of judges. Schmitt wants to emphasize the
personal quality of decisions so that conservative rulings might be
rendered with less liberal constraint. But the theories may
converge in more fundamentally disconcerting ways, as we will see
below.9
B. Law as Politics
The subjective-judging criticism also allows both Schmitt and
CLS to criticize legal liberalism for falsely separating politics from
the law. For both, there is no sharp distinction between objective
law and subjective politics. Scholars like Mark Tushnet, James
Boyle, Roberto Unger, and, most recently and elaborately,
Duncan Kennedy, argue that political value judgments infiltrate
the law at every turn.10 The law embodies specific political and,
8 HANS KELSEN, DAS PROBLEM DER SOUVER?NIT?T UND DIE THEORIE DES
V?LKERRECHTS: BEITR?GE ZU EINER REINEN RECHTSLEHRE (1920); HANS KELSEN,
DER SOZIOLOGISCHE UND DER JURISTISCHE STAATSBEGRIFF: KRITISCHE
UNTERSUCHUNG DES VERH?LTNISSES VON STAAT UND RECHT (1928); HANS KELSEN,
GRENZEN ZWISCHEN JURISTISCHER UND SOZIOLOGISCHER METHODE (1911).
9 See WILLIAM E. SCHEUERMAN, BETWEEN THE NORM AND THE EXCEPTION: THE
FRANKFURT SCHOOL AND THE RULE OF LAW 245-47 (1994).
10 KENNEDY, supra note 6; MARK TUSHNET, RED, WHITE AND BLUE: A CRITICAL
ANALYSIS OF CONSTITUTIONAL LAW (1988) [hereinafter TUSHNET, RED, WHITE AND
BLUE]; see also UNGER, supra note 7; James Boyle, The Politics of Reason: Critical Legal
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especially, economic values like self-interest, individualism, and
advantage, and reflects the personal prejudices of particular
judges. There is no consensus in the CLS literature on the exact
nature of these judicial prejudices.11 Kennedy is perhaps most
cynical in his assertion that judges generally pursue ideological
projects of varying stripes, but mostly decide cases so as to curry
favor with, and secure the interests of, what he calls the
intelligentsiaNew York intellectuals and Beltway insiders.12
Moreover, judges deny such strategic political behavior,
according to Kennedy, in deliberate bad faith.13 CLS
acknowledges the presence of more progressive countervalues in
legal discourse, such as solidarity and altruism, which also
constitute the human psyche, but these seem overwhelmed by the
more conservative ones mentioned above.14 Worse still for CLS,
the very pervasiveness of contradictory values embedded in
different laws and precedents manifests the incoherence of the
whole systema system in perpetual war with itself.
For Schmitt, as well, despite claims of being insulated from
politics, legal formalism is compromised politically. The fact that
the personality of judges interacts with the law makes for
unacknowledged state action. The emphasis on abstractly valid
principles, in particular, betrays liberalisms prejudice against
Schmitts preferred model: the more subjective, personalist
theories of judging associated with European absolutism. And yet,
as a result of this denial and bias, liberalism allows such political
judging to proliferate undetected, unmonitored, and unregulated.
According to Schmitt, in their revulsion at arbitrary
discretion, liberals sought to eliminate the state institutionally
from jurisprudential concerns, just as they wished to eliminate,
hermeneutically, the personal, subjective, decision from such
matters. But they were equally unsuccessful in each endeavor.
Specifically, the adherence to legal formalism under conditions of
an emerging welfare-state allows more state intervention than was
ever dreamed of by absolute monarchs. To Schmitts mind, in the
early twentieth century, the formalism of liberalism serves as an
ideology that belies the so-called materialization of law that is
Theory and Local Social Thought, 133 U. PA. L. REV. 685 (1985); Mark Tushnet, Critical
Legal Studies and Constitutional Law: An Essay in Deconstruction, 36 STAN. L. REV. 623
(1984) [hereinafter Tushnet, Critical Legal Studies]; Tushnet, A Political History, supra
note 2.
11 See Mark Tushnet, The Dilemmas of Liberal Constitutionalism, 42 OHIO ST. L.J. 413
(1981).
12 KENNEDY, supra note 6, at 1-5, 115.
13 Id. at 5.
14 See Mark Tushnet, Conservative Constitutional Theory, 59 TUL. L. REV. 910 (1985).
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brought about by state activity in the new era of welfare-state or
Sozialstaat interventionism. Schmitt observes presciently that, as
state activity addresses complex and variegated social and
economic situations, law is formulated in a more open-ended, and
less discernible, manner. In the service of widespread state
intervention into particular spheres of society, more discretion
becomes exercised by bureaucratic administrators, including
judicial officers, in implementing broadly defined social policy.
Rather than a formal guideline for members of society, law
becomes a material part of social reality.15
By repressing the state, the legal formalists not only do not
prevent arbitrary state functioning, but they allow its activity to
proliferate more extensively, and undetected to an even greater
degree. However, Schmitts concern with this situation is not, as
claimed by CLS at a later date, that state officials and the powerful
interests they represent potentially abuse their power through such
functioning, but rather, that the state is actually, in the end,
exhausted by it. The welfare-state is a weakened state that
overextends itself; not a dangerously strong coercive state.
CLS, for its part, criticizes more recent incarnations of legal
formalism for a similar nonchalance regarding state application of
law. Postwar legal positivists like H. L. A. Hart attempt to
preserve the purity of the primary rules of jurisprudence by
being quite indulgent toward vast latitudes of discretion in the
application of the law at a secondary level.16 Some semblance of
determinacy must be lost as bureaucracies freely apply law in
innumerable ways at the lower level of quite diverse social
realities.17 Schmitt wants such arbitrariness to be practiced in good
conscience and only in ways that benefit the state. In general, CLS
writings suggests that since these policies are arbitrary, they might
as well be for the sake of more rather than fewer, and weaker
rather than stronger, segments of the population. In their boldest
moments, representatives of the movement encourage further
judicial arbitrariness, so as to accelerate the demystification of the
lawe.g., Unger calls for CLS to recognize and develop
disharmonies of the law.18 With the rule of law sufficiently
15 See DILEMMAS OF LAW AND THE WELFARE STATE (Gnther Teubner ed., 1986);
JRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE
THEORY OF LAW AND DEMOCRACY (William Rehg trans., 1996); SCHEUERMAN, supra
note 9.
16 H. L. A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 1961 (1983).
17 See Gerald Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV.
1276 (1984).
18 UNGER, CRITICAL LEGAL STUDIES, supra note 2, at 578 (emphasis added); see also
Mark Kelman, Trashing, 36 STAN. L. REV. 293 (1984).
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debunked, legislative majorities can enact their will without being
thwarted by judicial subversion and obfuscation.19
Schmitts strategy is decidedly more subtle and unequivocally
more sinister. After drawing attention to it, Schmitt then conceals
the particular welfare-state moment that conditions his insights
with an appeal to a supposedly timeless jurisprudential and
political truth: namely, there will always, and inevitably, be
unforeseen or unexpected occurrences that can never be predicted,
for which accounts or plans can never be made, and over which
political or legal discretion must be exercised. Such phenomena
may be grouped under the notion of the exception.20 The vital
substance of an exception shatters the formal iron cage of liberal
jurisprudence and its institutional theory. The ramifications of
Schmitts call for more honest legal adjudication become clear as
Schmitt transposes the micro-juridical logic of statutes, judges,
cases, verdicts, and gaps, with the macro-political logic of
constitutions, sovereigns, emergencies, decisions, and exceptions.
Just as a judge must mediate the gap between the law and a
particular case with a personal decision, a sovereign must address
the political exceptionthe situation for which constitutions
provide no explicit directionwith a personal decision as well. If
CLS wishes to fill the moment of indeterminacy with a vigorous
majoritarianism, Schmitt wishes to fill it with a faux
majoritarianism. For Schmitt, this revenge of the exception takes
shape in the fascist promotion of a substantive democracy,
embodied personally in a plebiscitarily legitimated president.21
Such a democracy destroys the abstract illusions of impersonal,
merely legal statutes that are characteristic of parliamentary
liberalism.
This intention, obviously, is fundamentally at odds with those
of CLS, although the ensuing consequences of CLSs program
might ultimately share something of a family resemblance with
that of Schmitt. CLS generally promotes a concrete, more
directly-democratic substance to fill in the gaps left by the liberal
rule of law, but in a way that ameliorates, rather than reinforces,
social injustice. However, CLS never sufficiently delineates the
precise characteristics of injustice, nor an institutional agenda
19 See KENNEDY, supra note 6, at 2.
20 See SCHMITT, POLITICAL THEOLOGY, supra note 5, at 3.
21 CARL SCHMITT, DIE HTER DER VERFASSUNG (1931). Schmitt was able to test his
theories before the German High Court in 1933 by defending President Hindenburgs
imposition of national state authority over and against the Social Democratic regional
government of Prussia the previous year. For a gripping theoretical-historical account of
the case, see David Dyzenhaus, Legal Theory in the Collapse of Weimar: Contemporary
Lessons?, 91 AM. POL. SCI. REV. 121 (1997).
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that would ensure the progressive, rather than the regressive,
results they desire. Of course, CLS opposes unjust hierarchies
associated with racism, classism, and sexism, but unfortunately
does not specify their natures to a significant extent.22 Not
surprisingly, the solutions to such relatively undefined problems
are less than clear as well. Scholars like Kennedy posit
counterideals like altruism, sharing, and sacrifice, and advocate
policies such as worker protection, to those marketand
hierarchyfriendly ones that pervade legal liberalism.23 But
institutional methods to encourage, develop, or secure these are
categorically ruled out, largely because of a rather elusive
understanding of social reality.24 Kennedy unashamedly associates
fundamental socio-political problems with the status quo rather
than capitalism.25 Simply because the latter has proven to be a
less than satisfactory category of domination for many is no reason
to retreat into a category, like the former, that is completely
devoid of content.
Unger is something of an exception in this regard, as there is
no shortage of political prescription in much of his theoretical
work.26 Whether this has an adequate connection to practicable
reality has always been an open question.27 What is consistent with
his CLS associates is that, when faced with criticisms that his
theories lead to potentially extremist results, Unger retreats from
more radically anti-Enlightenment positions to those that are
decidedly more liberal.28 But the retreats are never permanent; the
wholesale assaults inevitably return in subsequent arguments. In
his latest book, Kennedy ranges from the classic all-out assault on
liberal adjudication at the outset, to more sober references to the
22 See Lawrence Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U.
CHI. L. REV. 462, 467-68 (1987).
23 Kennedy, Distributive and Paternalistic Motives, supra note 7; Kennedy, Form and
Substance, supra note 7, at 563.
24 See TUSHNET, RED, WHITE AND BLUE, supra note 10; Claire Dalton, An Essay in
the Deconstruction of Contract Doctrine, 94 YALE L.J. 997, 999-1114 (1985); Duncan
Kennedy & Peter Gabel, Roll Over Beethoven, 36 STAN. L. REV. 293 (1984).
25 KENNEDY, supra note 6, at 5.
26 ROBERTO M. UNGER, POLITICS, A WORK IN CONSTRUCTIVE SOCIAL THEORY
(1987).
27 See STEPHEN HOLMES, THE ANATOMY OF ANTILIBERALISM 160, 163-65 (1993);
IAN SHAPIRO, POLITICAL CRITICISM 245-46 (1990); Rogers M. Smith, After Criticism: An
Analysis of the Critical Legal Studies Movement, in JUDGING THE CONSTITUTION 92-124
(Michael McCann & Gerald Houseman eds., 1989); Perry Anderson, Roberto Unger and
the Politics of Empowerment, 173 NEW LEFT REV. 47, 47-52 (1989).
28 Compare UNGER, supra note 7, and Kennedy, Form and Substance, supra note 7,
with Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical
Phenomenology, 36 J. LEGAL EDUC. 518 (1986), and Kelman, supra note 18.
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downside of the rule of law during a patented retreat,29 back to
more radical claims further on in the work.
To his credit (?), Schmitt is more consistent in his practical
program, however unsavory that may be. The executive as the
directly elected agent of social homogeneity must eclipse
parliamentary law-making and judicial law-interpretingavenues
too susceptible to illegitimate particularist interests. Democratic
substance, for CLS, is based on societal plurality or difference, not
homogeneity. CLS exhibits a clear discomfort with totalizing
notions of the people associated with the excesses of the
traditional left, and in Schmitts case, the right as well. But
something prevents CLS from making the kind of firm institutional
and jurisprudential prescriptions necessary to definitively separate
its notion of the democratically concrete from those formulated
by the likes of Schmitt.
CLSs frequent retreats to reconstructed liberal positions, or
to what Neil MacCormick calls a fancy form of the West
European welfare-state, are quite telling.30 Specifically, they
reveal an awareness on some level that their goals cannot be
realized within the ambit of their strong critique of legal liberalism
and their vague calls for an overhaul of it. In his latest work,
Kennedy, for instance, invokes a definition of the rule of law that
itself cannot escape his own radical critique of legal liberalism, and
is thus inappropriate as a means of carrying out or enforcing his
progressive agenda.31 There ought not to be a refuge for Kennedy
in a fortress that he and his consociates have already razed to the
ground. Susceptibility to legal arbitrariness and vulnerability to
naked might, are two likely outcomes of the CLS program, and
neither will satisfactorily effect its goals. First, the kind of
indeterminacy that CLS wants to make commonplace threatens
the legitimacy of legal orders in ways likely to make the
enforcement of legislative majorities less than effective. If legal
decisions were encouraged to be the particular outcome of power
conflicts at any particular time, law would be enforced so
haphazardly that principles as consensually accepted as, for
instance, equal protection would be impossible to uphold. Yet
neither Unger nor Kennedy wants to forsake these advantages of
the rule of law.
If, as Tushnet suggests, judges do, and should, promote their
own personal views under the guise of legality, who would
29 KENNEDY, supra note 6, at 14.
30 Neil MacCormick, Reconstruction After Deconstruction: A Response to CLS, 10
OXFORD J. LEGAL STUD. 539, 539 (1990).
31 KENNEDY, supra note 6, at 13.
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seriously abide by such decisions once recognized as widespread?32
What separate arm of government would bother to enforce them
once law is so discredited? What guidelines, rules, institutions, or
principles will advance altruism, generosity, and solidarity,
and enforce policies like worker protection in such a scheme of
law? The modus vivendi compromises that achieve them at one
moment could, and very likely would, collapse at the very next.
Judicial capriciousness is simply incompatible with a liberal, or
social, democratic conception of justice; it would fail to
operationalize the very mode of justice that CLS desires. It may
inhibit, as much as facilitate, more popular law-making through
the increase in the number of super-judgesFhrer judges, if you
willwho seek to change policy unilaterally through landmark
decisions.33 Even though most CLS-ers back down when faced
with the implications of their rhetorical thunder, the strong
criticisms stick.34 At a time when social scientists interested in
justice realize that the means to attain it are predicated, to a
significant extent, on the fine clarification of indeterminacy
problems,35 CLSs blaring yet, in reality, indolent critique seems
somewhat less than fully responsible.
Second, there is even more at stake than the issues of
decreased efficiency and diminished respect for the law. Even the
most trivial recapitulation of the dangers of tyrannical majorities
would suggest that these empowered legislative majorities that
CLS speaks of so hopefully are not necessarily bearers of justice
especially when argued for from a standpoint that is avowedly
post-rights.36 Legal procedures are still the best way of refining,
articulating, and temperingfor its own sakea popular will that,
on the basis of sheer power alone, is not inherently progressive.37
Benjamin Gregg recognizes the fundamental danger that resides in
the argument that, since law is indeterminate, it therefore is, and
should be, conflated with politics: force.38 Simply put, CLSs
32 Tushnet, supra note 11.
33 See LIEF CARTER, CONTEMPORARY CONSTITUTIONAL LAWMAKING (1985).
34 See William Ewald, Ungers Philosophy: A Critical Legal Study, 97 YALE L. J. 665
(1988); J. W. Harris, Ungers Critique of Formalism in Legal Reasoning: Hero, Hercules
and Humdrum, 52 MOD. L. REV. 42 (1989).
35 See JAMES BOHMAN, NEW PHILOSOPHY OF SOCIAL SCIENCE: PROBLEMS OF
INDETERMINACY (1991).
36 See KENNEDY, supra note 6; see also Mark Tushnet, The Critique of Rights, 47 SMU
L. REV. 23 (1993).
37 See Stephen Holmes, Precommitment and the Paradox of Democracy, in PASSIONS
AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY 134 (1995); Ian Shapiro,
Three Fallacies Concerning Minorities, Majorities, and Democratic Politics, in
DEMOCRACYS PLACE 16 (1996).
38 Benjamin Gregg, Possibility of Social Critique in an Indeterminate World, 23
THEORY & SOCY 327, 344, 364 (1991).
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endeavors to mutually identify politics and the law, pave the way
for the Schmittian strategy of reducing the law to brute strength.
The attempt to merely shrug off the question of nihilism
whatever that iswill simply not do.39 It seems as though
Thrasymachus must, once again, be put to school.
Thus, the similarities of the critiques, accompanied by a lack
of adequate policy prescription on the part of CLSdespite a vast
difference in political intentionsdo not rule out results closer to
those promoted by Schmitt than anything that could be called
progressive. In fact, they may invite such results. Having
undermined the imperfect, but semi-objective, formal standards of
the liberal rule of law, and reluctant to employ criteria discredited
as metanarratives, which might distinguish healthy expressions
of social particularity from pathological ones, what guarantees that
the CLS strategy will remain emancipatory? Schmitt rejected
normative grounds to distinguish his concretely democratic,
discretionary-presidential state from what he claimed were the
more dishonest and dangerous kinds of concrete regulation and
adjudication that were operating in the liberal welfare-state. The
results of Schmitts subsequent political endorsements are selfexplanatory.
Schmitt sacrificed the law to the state; CLS runs the
risk of sacrificing it to an undifferentiated and perhaps naive
notion of society. CLS would scoff at Schmitts belief that an
executive-state can be in any way neutral, much as it derides the
very notion of legal neutrality. However, Schmitt would argue
that CLS, while quite attuned to the presence of illegitimate socioeconomic
interests embedded in the state, has no means by which
to evaluate different kinds of groups within society and their
expanded influence on the law once important legal standards
have been removed. Weimar and recent trends around the world
remind us that all social movements are not necessarily benign,
especially once they have unqualified access to legal apparatuses.
For CLS, the competing market and welfare-state,
individualistic and communitarian values of, respectively,
autonomy/self-interest and solidarity/altruism are warring aspects
of the human psyche.40 That CLS ultimately attributes such
impulses to the potentially ahistorical realm of human psychology
would not be so problematic had CLS not detected them, to begin
with, in the midst of a very concrete historical situation. It is
through the study of the consequences of postwar materialized
39 See KENNEDY, supra note 6, at 25.
40 See Boyle, supra note 10; Jay Feinman, Critical Approaches to Contract Law, 30
UCLA L. REV. 829 (1983); Gary Peller, Debates About Theory Within CLS, 1 LIZARD
(1984).
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administrative and contract law, that CLS detects the interplay of
the different competing and contradictory values that render the
law supposedly indeterminate. Schmitt, however, understood the
shifts between values in adjudication to be ideological, and sought
to manipulate them through a thorough understanding of the
Fordist Sozialstaat and its mid-century conversion from welfare to
warfarefrom embodying class solidarity to nationalism.
The de facto strategy of reducing all cases to exceptions
leads CLS to the conclusion that, since there is no coherence to
liberal-democratic law, there is no justice. Because each law is
capable of contradicting another, a fact exacerbated by subjective
judging, the whole legal order is suspect. Schmitt and CLS
basically pose an ultimatum between nineteenth-century-style
formal law and twentieth-century-style material law, each of
which, if practiced alone in an advanced industrial legal order,
would compromise the coherence and legitimacy of adjudication.
If one observes and evaluates the operation of welfare state
materialized law with the standard of nineteenth-century formal
law, the former is likely to appear incoherent or indeterminate.
However, if one approaches them with historical and analytical
honestyas Schmitt intentionally, and CLS inadvertently, do
noteach type of law can be equally coherent or determinate in
its appropriate sphere of jurisdiction. As Lawrence Solum
succinctly puts it, legal formalism can significantly constrain
outcomes even if they do not mechanically determine them.41
CLS and Schmitt claim that liberalism violates a promise for
determined outcomes that it never made to begin with. Thus, they
play what might be called determinacy blackmail with liberal
law.
The purpose of comparing Schmitt and CLS in the first part of
this essay is not to pursue a strategy of guilt by association.
Quite the contrary; in certain respects, CLS would have done
better to be more like this unsavory apologist of tyranny. Schmitt
emerges out of the German administrative law of the turn of the
century Bismarkian Sozialstaat. He observes the crumbling of
formal law, claims general timeless significance for the
phenomenon, but pursues his political agenda in the historically
specific character of his times. CLS emerges out of American
administrative and private law of the 70s and 80s, observes a
crisis of formal law, and draws general, timeless theoretical
conclusions about the law. CLS then merely facilitates the
further corruption of the normative potentialities of contemporary
41 Solum, supra note 22, at 475.
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law, but puts virtually nothing constructive in its place, except a
kind of situational jurisprudence. These are charges frequently
leveled against Derrida, especially after his foray into legal
philosophy, Force of Law. In the second part of this paper we will
have to evaluate whether this is a fair and legitimate
representation.
II. DERRIDA: UNDECIDABILITY AND THE POSSIBILITY
OF NON-COERCIVE LAW
A. Deconstruction on Trial
Derridas work on law is often cited as the clearest
capitulation of poststructuralist thought to quasi-Schmittian
categories.42 I would like to argue that Derridas deconstruction
actually diverges widely from Schmitts theory, much as CLSs
project is a deconstruction of close convergence with that theory.
Critics of poststructuralism tend to assume a standpoint of such
generality that all modes of thought that do not conform to
Kantian liberalism (or what used to be called bourgeois
materialism) are lumped together in some dangerously ecstatic or
vitalist totalitarian category. Whereas CLS maintains close
affinities with Schmitt upon the very closest level of inspection,
Derrida moves further and further away from him the more
carefully one reads Force of Law.
Force of Law reveals itself to be an ambitious, if often deeply
implicit, deconstruction of the history of the Western political
tradition, from Platos Republic to the Holocaust. It is precisely in
the difference between deconstruction and Schmitts and, to a
lesser extent, Heideggers Destruktion of that tradition that
Derridas distance from Schmitt gradually becomes clear. Derrida
begins Part I of the almost book-length treatise with a complaint
over obligation, even compulsion: Derrida is compelled to speak in
a language, English, that is not his own, and on a topic, justice, on
which he did not volunteer to expound.43 This obligation is
necessitated by the rules of the Cardozo Law School conference at
which the paper was delivered, the need to be understood by the
audience, presumably the desire to publish a volume from the
conference, not to mention the general hegemony of the U.S. and
42 See, e.g., Richard Wolin, Derrida on Marx, or the Perils of Left Heideggerianism, in
LABYRINTHS: EXPLORATIONS IN THE CRITICAL HISTORY OF IDEAS 231 (1995); Mark
Lilla, The Politics of Jacques Derrida, 45 N.Y. REV. OF BOOKS 36 (1998); Richard Wolin,
Derrida as Political Romantic 27-30 (Aug. 1998) (unpublished paper presented at the
American Political Science Association Annual Meeting) (on file with author).
43 Derrida, supra note 1, at 3.
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the English language throughout Europe and the world after
World War II. Derrida raises the specter of an ill-tempered
speaker who might contest in terms of rhetoric,44 in an unjust
way, and in bad faith,45 the mode of discussion of the topic at
hand. However, Derrida is quick to transgress the norms of this
arrangement by reverting to French before the end of the very first
page, and throughout the first part of the essay.
All of these elements furtively direct the reader to Book I of
the Republic where Socrates is compelled by force, albeit friendly
force, to discuss justice rather than enjoy himself during a festive
evening.46 The continuity of the ensuing Socratic dialogue is
disrupted by the outburst of Thrasymachus, the violent rhetorician
who asserts that justice is the rule of the strong. The Republic
exhibits many moments evoking the theme of transgression, as the
discussion of justice proceeds throughout the book. Derridas
discourse soon takes up themes from Platonic dialogues
subsequent to The Republic; it soon becomes an apologia for
deconstruction and its relationship to justicea more specific, but
no less dramatic, form of apology, like Socratess own on behalf of
philosophys relationship to the city. The Cardozo conference and
this volumeorganized by lawyers of self-understood democratic
stripebecome the trial of deconstruction.
Derrida first undertakes the apologia by contesting the forced
conjunction of deconstruction with justice as the topic of the
lecture, and does so in terms evoking other leitmotifs of Western
political thought. The constraint is a fearful, violent, inquisitorial,
and tortured imposition.47 The conditions of Derridas speech are
soon explored through successive definitions of justice that have
been explicated in European political theory: majority rule, will of
the strongest, opennessor lack thereofto a foreigner, a selfimposed
set of rules, love, the contract.48 Derridas exercise, thus
far, most vividly brings to mind the element of coercion, or of
force, which exists before law as a topic can even be broached.
Force and coercion are necessary components of law, its
establishment, or its enforceability, but are also threats to justice.
The establishment of a system of justice itself presupposes a
moment of violence that could not have been sanctioned by
arrangements agreed upon by those over whom the violence is
exercised. Hence, law and legitimacy depend on the illegal and
44 Id.
45 Id. at 4.
46 PLATO, THE REPUBLIC (G.M.A. Grube trans., 1997).
47 See Derrida, supra note 1, at 4.
48 Id. at 5.
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illegitimate to establish themselves. Post-founding, more
generally, how can the regular and daily applicability of law be just
if it entails force? Derrida, however, asks: if violence is
presupposed in the law, are there different kinds of violence, some
more just than others?
In this context, Derrida continues his apologia in defense of
deconstruction against the conventional tradition of political
thought that, like Socratess students and, later, the legal
authorities of the Athenian democracy, demands that Derrida and
deconstruction foreground the question of ethics or politics.
Derridas essay struggles with the demand by critics of
deconstruction to arbitrarily commit to, decide over, take a
stand on, ethical/political matters. By not deciding, Derrida is
supposedly guilty of nihilism, by allowing arbitrary force to remain
unidentified as wrong, as unjust. Critics often read into such
reluctance to decide an implicit acquiescence in decisionism of a
Schmittian sort. Without explicit ethical or political intervention,
deconstruction allows what is decided everyday to pose as what is
just. In response, one of the essays central claims is that the
collapsing of what is legal and what is just in such an intervention,
in what would be a decision, is itself a surrender to nihilism. But
simply because Derrida refuses to mechanically collapse the legal
and the just in an immediately practical or programmatic way,
does not mean that his deconstruction forsakes justice.
Derrida implies, through comparison to other authorslike
Kafka, for instancethat discourses on double affirmation, the
gift beyond exchange and distribution, the undecidable, the
incommensurable, or the incalculable, or on singularity, difference
and heterogeneity are obliquely concerned with justice.
Deconstructions apparent affirmation of what conventional
philosophy tries to reconcile, or make commensurable, or solve
is precisely the holding out of hope for a justice that is not
ultimately eradicating or annihilating. The exposing of the aporiai
and the margins of the traditional is an act of resistance and an
openness toward the future:
[B]y destabilizing, complicating, or bringing out the paradoxes
of values like those of the proper and of property in all their
registers, of the subject, and so of the responsible subject, of the
subject of law (droit) and the subject of morality, of the juridical
or moral person, of intentionality, etc., . . . such a deconstructive
line of questioning is through and through a problematization
of law and justice. A problematization of the foundations of
law, morality and politics. This questioning of foundations is
neither foundationalist nor anti-foundationalist. Nor does it
pass up opportunities to put into question or even exceed to the
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possibility or the ultimate necessity of questioning, of the
questioning form of thought, interrogating without assurance or
prejudice the very history of the question and of its
philosophical authority. For there is an authorityand so a
legitimate force in the questioning form of which one might ask
oneself whence it derives such great force in our tradition.49
The essay itself performs this wish in, among other things,
Derridas frequent remarks along the way that he has yet to even
begin his analysis;50 rather, his analysis is presented as persistent
provisionality and a continual prologue of the deconstructive
enterprise.
Somestudents of Leo Strauss, for instancemight argue
that this open-ended mode of questioning invoked above is
precisely what is practiced in the founding texts of Western
political philosophy by Plato, when the latter is properly
understood by taking better account of the dialogical structure of
his works.51 As opposed to straightforward readings of the
dialogues that interpret them as expositional, or declarative
arguments that ultimately appeal to the absolute of the Forms,
Strauss suggests that the dialogues point up the irreconcilable
aporiai, the permanent problematization, of reason, experience,
justice, etc. But the question raised with great force by
Derridas last sentence in the quote above is: what, then, is the
intended purpose of the more conventionally-read layer of Platos
argument, the one that promotes the myths of the Ideas and
Forms? Is the literary structure of the dialogues intended as a
social filter, a gatekeeper, to make sure that the wrong people
do not get through to the more aporetic, and purportedly more
dangerous, layers of the argument?
Derrida, unlike Plato and, later, Heidegger, seeks the ruthless
questioning that does not capitulate to the socially-coercive and
hierarchy-imposing imperative that results from an unconcealing
that is also simultaneously a concealing. Platonic revealing to the
philosophic is a concealing to the unphilosophic, notably the
masses. Deconstruction, as Derrida defends it, pursues the
unceasing interrogation of the authority of all opinions,
conventional or political, even those of philosophers. He does this
in a way that seeks not to cover its tracks with new myths, as
responses to the fear of the populist or egalitarian, and hence
49 Id. at 8.
50 Id. at 5, 10, 15.
51 See CATHERINE H. ZUCKERT, POSTMODERN PLATOS (1996); Leo Strauss, On
Platos Republic, in THE CITY AND MAN 50 (1990); Steven B. Smith, Leo Strausss
Platonic Liberalism (April 2, 1999) (unpublished paper presented at the Faculty
Colloquium, Political Science Department, Yale University) (on file with author).
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purportedly unphilosophic, socio-political ramifications that might
emerge from such questioning. In this sense, Derridas
deconstruction moves closer to what is often called critical theory,
and away from Platonism in its Greek and German forms.52 The
literary aspect of Derridas text must then be interrogated to
reveal what is more universal about the aporetic renderings of its
critique.
Proceeding, then, with this immanent critique of the Western
political-philosophic tradition in Part I of his essay, Derrida
devotes his most extensive analysis to the antinomies of law in his
own traditionthat is, the French language tradition of Pascal
and Montaigne.53 The philosophical-biographical details of
Derridas life and work that problematize this notion of his own
tradition are a serious issue. The criticism of the language of law
in Derridas own intellectual-linguistic tradition suggests a
resistance to the affirmation of some chauvinistic nationalism,
which itself responds to a perceived violence imposed by some
linguistic other, in this case the hegemony of English. For Derrida,
speaking in anothers language is first cast as a surrender, even a
sacrifice, but then he considers it the condition of all possible
justice, even though it may entail appropriation and assimilation,
and even though it may be experienced as an ordeal.54
The national language of law in each of the European Great
Powers has meant the establishment of wider interaction across
larger geographical territories, but also the obliteration of local
particularity and the nationalizing of local identities. French itself
only became a national language by supplanting provincial ones; a
diplomatic language by setting aside other European ones; a
colonial language by imperializing non-European ones. Derrida
reminds us that the imposition of language on someone,
particularly a national or ethnic minority, is violence.55 In this
tradition, language is too often a sacrifice, signs in place of
something else that facilitate other kinds of representation, the
swapping of one for another, or the sacrificing of one for the other.
In the European state-building tradition, those who would resist
52 Thus, Force of Law may be interpreted as signaling the kind of turning in Derridas
oeuvre that Michel Foucaults What is Enlightenment? portended for his own. MICHEL
FOUCAULT, What is Enlightenment?, in THE FOUCAULT READER 32 (Paul Rabinow ed.,
1984). The question of whether Derrida can be judged to have successfully followed
through on the kind of turn that mortality prevented Foucault from fully pursuing would
depend on an evaluation of Derridas Politics of Friendship. JACQUES DERRIDA,
POLITICS OF FRIENDSHIP (George Collins trans., 1997). Space constraints prevent me
from undertaking such an evaluation here.
53 Derrida, supra note 1, at 11-15.
54 Id. at 16-17.
55 Id. at 21.
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national consolidation are explicitly described as sacrifices who
must be offered so that the rest of the population may live in
peace. This kind of representation of the few for the whole
implies death and life, the double quality of blood; Derrida speaks
of the cannibalism, the sacrificial quality of eating meat, retained
in all nursing, love, mourning, or all representationall putting in
place one thing for another.56 Both nurturing and coercion have
depended on such representation.
But Derridas apparent suspension between the more just
speaking in anothers language and the unjust compulsion to do
so does not entail an abandonment of ethical or political concerns,
a relativist indifference to one or the other: what is currently
called deconstruction would not correspond (though certain
people have an interest in spreading this confusion) to a quasinihilistic
abdication before the ethico-politico-juridical question of
justice and before the opposition between just and unjust.
57
Again, to arbitrarily commit, to decide, as Derridas critics
demand, by conflating what is legal and what is just is a
compromise with nihilism. The possibility of justice, for Derrida,
depends upon a leaving open as unresolved the tension between
justice (which is infinite, incalculable, rebellious to rule and
foreign to symmetry, heterogeneous and heterotropic) and law
(right, legitimacy, legality, stabilizable and statutory, calculable, a
system of regulated and coded prescriptions).58
Derrida concludes this first part of his treatise with three
aporiai of law that were raised by Schmitt and that were evident in
the indeterminacy of law approach of CLS, as described in the first
part of this paper. But Schmitt and CLS arbitrarily resolve
indeterminacy, respectively, in a regressively or progressively
coercive manner. Derrida, who coolly distances himself from CLS,
leaves opencoercively, one might saythe aporiai.59
The aporetic dilemmas are as follows: (1) judges apply
previously established rules, on one hand, yet create law freshly in
the moment of decision. As a result, they conserve, yet destroy,
the law; they function in one way as machine, but in another as
founder. Legitimacy is threatened because, on the one hand, each
case is different and should be treated as such; on other,
consistency is required to prevent arbitrariness. (2) Derrida
emphasizes the undecidablethat which cannot be sublated under
a rule, or even, for that matter, a prudential decision. It haunts
56 Id. at 19.
57 Id.
58 Id. at 22.
59 Derrida, supra note 1, at 9.
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not just hard cases but, as if a ghost, even routine cases. Finally,
(3) there is the imperative of urgency, the fact that a decision must
be rendered now and cannot be put off. There is a madness to
this aspect of the decision.60
By not attempting to resolve these dilemmas, critics charge,
Derrida undermines law and justice, and, moreover, allows
someone assuredly unjust to resolve them. This, for instance, is
the Straussian imperative: at least set forth a myth of justice to
resolve these dilemmas if you cannot do so yourself in good faith.
Or, tis better to promote a noble lie, than an invitation to the
unmediated rule of the strong. But it is not clear that appeals to
Platonic myth themselves satisfactorily forestall domination by the
strong. It is necessary at this juncture only to mention the political
engagement of most of Strausss students, and their role in the
American virtue-industry that is meant to distract citizens from
the necessity of social and economic justice.61 For his part,
Schmitt, after all, was engaged in myth-making, as well as the
facilitation of unjust domination.62 CLS may engage in leftist
myth-making, which, as noted above, does not necessarily rule out
force. But if Derrida avoids Schmitt, or CLS, by not deciding in
favor of one or the other side of these dilemmas, is he nevertheless
copping out? Is deconstruction passively complicitous in the rule
of force by not specifying how to evaluate different kinds of force
normatively? Without such delimitation there can be no justice.
For Derrida, the posing of these dilemmas does not mean that
law is inherently corrupt, or justice an impossibility. After all, this
tradition of law inaugurated the rights of man, the abolition of
slavery, etc.all of which Derrida decides in favor of now. In
this context, Derrida avers, nothing seems to me less outdated
than the classical emancipatory ideal.63 But this is not his last
word on the matter. This is not a final decision in favor of the
Enlightenment tradition of law.
B. Mythic and Mystic Violence
Part II of the essay is less conciliatory towards the judicialphilosophic
tradition of the West than the conclusion of Part I
might suggest. In fact, Part II hinges upon the possibility of
another kind of law that is opposed to the kind discussed in Part I,
which Derrida claims depends upon founding and applicating
violence. It is, of course, Schmitt who emphasized the extralegal
60 See id. at 23-28.
61 See, e.g., SHADIA DRURY, LEO STRAUSS AND THE AMERICAN RIGHT (1997).
62 See MCCORMICK, supra note 4, chs. 2, 6.
63 Derrida, supra note 1, at 28.
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pre-political moment, and, more importantly, raised the possibility
of it being continually invoked after the foundation of government
as moments of refounding in executive and judicial decisions.
Schmitt sought to recall the violence of originary decision, a
reminder in a hyper-Machiavellian and Hobbesian sense, of the
fear and terror of the pre-political and the constructive violence
that established order by eradicating the chaos which came before
it.64 In a footnote to this second part of his essay, Derrida
identifies this kind of violence as Greek, as enlightenment,65 and
later, as mythic. This is the violence which undergirds the kind
of law that Derrida discussed in the first part, a legal tradition
whose progressive achievements he did not impugn.
Derrida turns to Walter Benjamins Critique of Violence to
explore the question of this kind of violence.66 Benjaminwho,
like Derrida, is quite often, perhaps too readily, associated with
Schmitt67explored this kind of violence and, more importantly,
sought to keep open the possibility of another kind of violence.
Benjamins oft-noted fascination with Schmitts theory of the
exception and of sovereignty is taken to be a flirtation with, or
even surrender to, the mythic form of violence. In Derridas essay,
mythic violence is inherent in the Greek tradition from Plato
through Machiavelli and Hobbes, and most pathologically
manifested in Schmitt: the violence that eradicates the chaos of the
pre-political in the establishment of the political, yet nevertheless
violently resorts back to founding power in its self-maintenance.
Derrida remarks that Benjamins text is haunted by this kind
of violence. After all, it is in mythic violence in its most evil form,
as theorized by Schmitt and practiced by National Socialismin
the eradicating, annihilating, and exterminating violence of
Nazismthat Benjamins life would be consumed, even if through
64 THOMAS HOBBES, LEVIATHAN (Richard Tuck ed., 1996); NICCOL
MACHIAVELLI, THE DISCOURSES ON LIVY (Peter Bondanella trans., 1999).
65 Derrida, supra note 1, at 63 n.6.
66 Walter Benjamin, Critique of Violence, in REFLECTIONS 277-300 (Peter Demetz ed.,
1978). I cannot pretend to do justice to Benjamin or his essay here. Consult the following
excellent discussions of the piece, particularly the status of Georges Sorel within it. See
Stathis Gourgouris, Enlightenment and Paranomia, in VIOLENCE, IDENTITY, AND SELFDETERMINATION
119 (Hent De Vries & Samuel Weber eds., 1997); Beatrice Hanssen, On
the Politics of Pure Means: Benjamin, Arendt, Foucault, in VIOLENCE, IDENTITY, AND
SELF-DETERMINATION, supra, at 236; Tom McCall, Momentary Violence, in WALTER
BENJAMIN: THEORETICAL QUESTIONS 73 (David S. Ferris ed., 1996); Samuel Weber,
Taking Exception to Decision: Walter Benjamin and Carl Schmitt, 22 DIACRITICS 5 (1992);
Jan-Werner Mller, Myth, Law and Order: Schmitt and Benjamin Read Reflections on
Violence (1996) (unpublished paper presented at the Graduate Student Conference on
Mythology and Ethics, Cornell University) (on file with author).
67 Ellen Kennedy is often singled out in this regard. Ellen Kennedy, Carl Schmitt and
the Frankfurt School, 71 TELOS 37 (1987).
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his own hand.68 Benjamins essay holds out the possibility of a
different kind of violence, suggested by another tradition of
Western political thought: the messianic, mystical violence of
the Jewish tradition. This violence, may cleanse without the
bloodletting so central to the Greek, mythic form of violence.69
Christianity, then, is deeply collusive in mythic violence, in the
mind of Derrida as well as Benjamin, judging from the invocation
in this context of Aristotles, cum John the Evangelists, word,
logos.70 The gospel of imperializing love, as well as anti-Semitism,
begins with the same notion as Aristotles reflections on the polis,
The Politics: logos.71 Whatever their differences, the Greek
testament of the Bible, like the Greek philosophic tradition,
privileges the word or reason in a way that is potentially
idolatrous, from the standpoint of Judaism. If it is not fully
idolatrous, it certainly has homogenizing, imperializing, or
coercive tendencies. In Derridas text, the Greek testament, Part
I, comes first; while the more Hebraic one, Part II, is the newer or
more recent testament.
In this context, interestingly enough, Derrida proceeds to
explore a redefinition of love: not universal love, not love of the
abstract and eternal, but rather love of what is precisely mortal
and finite.72 This is clearly not Christian love. But it is not
altogether clear whether Derridas testament is an attempt to
reclaim Jerusalem from its Greek appropriation. Such a
reclamation would emphasize something other than the universal
love that renders violence mythic through representation and
homogenizing imperatives.73
But what actually characterizes messianic or mystic, as
opposed to mythic, violence? Benjamin was attracted to the
workers right to strike; the states sanctioning a form of violence
to something other than an extension of itself.74 And, of course,
the violence of the strike is qualitatively different than the violence
of the state; it is action that is the cessation of activity, not the
physically harmful exercise thereof. Violence like that of the
strike raises alarm without the threat of blood (unless state or
corporate power threateningly challenges it). This holds a clue for
an understanding of messianic violence. The violence of the
strikepassive nonphysical violenceis hence akin to Messianic
68 See Derrida, supra note 1, at 64 n. 6.
69 See id.
70 Id. at 10.
71 ARISTOTLE, THE POLITICS (Peter Simpson ed. & trans., 1997).
72 Derrida, supra note 1, at 44.
73 See id.
74 See id. at 34.
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violence for Benjamin. Recalling Machiavellis return to
beginnings and Hobbess natural condition, mythic founding
violence is terrifying, not only because of the physical suffering of
torture and crime, but also because of the sheer epistemological
psychological uncertainty and anxiety that accompanies such
violence.75
But Derrida is careful not to identify too closely with
Benjamins idiosyncratic Jewish-philosophic outlook. He cautions
that Benjamin, like many Jewish-Germans at the time, was too
close in thinking to the right, the militaristic, the nationalistic side
in Weimar Germany.76 Yet Derrida may be unjust himself, in
identifying Benjamin and Arendt along with, for instance, Cohen
and Rosenszweig in this sense. This raises a question concerning
many of Derridas treatments of Benjamin in the essay: are they
straightforward or performative? At times it seems as if such
descriptions are rhetorically intended to make possible a reading
that sees the justice of Benjamins political philosophy without
Derridas own mere assertion of it, or crude apology for it.
Whereas Cohen and Rosenszweig would have endorsed the
imposition of state authorityeven coercively violent authority
in the name of order, Benjamin endorses a different kind of
violence and authority altogether. Derridas reading of Benjamin
points in this direction, but then reverses. His own judgment of
Benjamin is nondecisive, nondeclarative, and nonviolent in his
defense of Benjamin.
Derrida evokes some of the classic motifs of realist political
thought in the West to show the stakes involved in mythic
founding, as opposed to messianic-mystical, violence: the
founder/legislator as criminal; the substitution of violence from the
state of nature/war to that of peace/society; the place of
compulsory military service; and the fact of crime-making on the
part of the police, rather than its prevention or punishment.77
Founding violence always leaves the residue of death in the order
that it founds, and then conserves. But where is that violence and
order that will structure without physical violence, without blood,
without death?
Certainly, founding violence is somewhat tempered when
conserved in the rituals that repeat the founding78rituals which
are often gentler than the founding murder. In the act of
representing, violence may have a place in such ritualsreligious
75 See id. at 35.
76 Id.; see also id. at 64 n.6.
77 Id. at 40-41.
78 See id. at 41.
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or politicalbut not in a way that completely returns to the
founding moment. Herein lies the difference between Schmitt, on
one hand, and Hobbes and Machiavelli, on the other; the latter
would represent beginnings as reminders, while Schmitt would
recreate beginnings wholesale, or, at least, seems to offer no way
of halting its recreation, its recurrence. A return to beginnings
and/or a natural condition is a past, however real or metaphoric,
that can be allegorically represented in a ritual in the present. The
exception suggests a ground zero starting againa moment when
the distinction between friends and enemies is reinscribed, when
real blood must be spilled. What other action could accompany
the sovereigns decision?
Derrida does echo Schmitts discussion of sovereignty, but in
ways that tacitly emphasize the difference between his concerns
and those of Schmitt. Recall how Schmitt remarked that the
welfare-state intruded into society more extensively than did the
absolute monarchs. In similar terms, Derrida observes how
founding violence now permeates society more thoroughly
through police activity than under absolute monarchs. Schmitt
criticizes law to justify a security state; Derrida does so to
underscore how it supports a police state. The police, for Derrida,
are an unpresented presence, a specter; a spiritual, not natural,
reminder of the presence of death; bearers of the death penalty.79
But Schmitts logic justified state intervention into society that
secured a stable relationship between the twoi.e., statemotivated
exceptional dictatorial action or regular police activity.
Derrida uses a Schmittian analogy to criticize a law-and-violence
paradigm reminiscent of Schmitt. For Schmitt, welfare-state
intervention was initiated by societyintervention not understood
in terms of nonviolent and legal attempts to ameliorate socioeconomic
justice, but rather as grabby and aggressive brigandage
against the state. In short, this contrast suggests that any
association of Derrida and Schmitt on the basis of this essay would
blatantly misunderstand the different types of force with which
they sympathizerespectively, mystic and mythical violence.
In the midst of such considerations of the police state, Derrida
seems to conflate Benjamins critique of parliamentary democracy
with Schmitts.80 Again, is this the whitewashing of Schmitt or the
besmirching of Benjamin that some critics charge, or is it rhetorical
or performative? According to Derrida, Benjamins critique is
reactionary as much as revolutionary, because it holds
79 Id. at 45.
80 CARL SCHMITT, THE CRISIS OF PARLIAMENTARY DEMOCRACY (Ellen Kennedy
trans., 1985).
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democracy up to the standard of its name, which is necessarily a
return to origins.81 This would suggest a refounding of sorts, which
thus entails mythic violence in action, or at least in representation.
This would indeed be a Schmittian move. But Schmitts critique
was disingenuous, which is not the same as performative; he held
parliamentarism and democracy up to standards in which he
himself did not believe.82
Derrida makes Benjamins critique more Schmittian: he draws
from Benjamins text the argument that parliamentary
compromise is complicitous in, not generative of, the public
disorder encouraged, not defused, by the police. According to this
line of thought, this is an active forgetting on the part of
parliaments of the founding violence from which they emerged.83
Derridas version of Benjamin at this juncture is precisely
Schmitts critique of parliamentarism, with added metaphysical
language. But just as Derrida overdrew the connection between
Benjamin and Weimar Jewish conservatives, he overextends an
affiliation with Schmitt: Benjamins concern here unlike Schmitts,
is not with order per se, social order secured by police or military
violence. Benjamin unlike conservatives such as Cohen and
Rosenszweig or reactionaries like Schmitt, is aware of the states
encouragement of social disorder, of state law-breaking and topdown
coups.84 Therefore, the re-establishment of order is not
pure for Benjamin, but rather tainted with violence. Benjamin
wants parliament to be replaced with something else beyond
violent order.
Derridas treatment of both Benjamin and Schmitt continues
in this odd manner as the essay proceeds. Besides painting
Benjamin too much like figures on the right and apparently
minimizing Schmitts radical tendencies, Derrida greatly
exaggerates the relationship between the two of them. Along
these lines, Derrida mentions a correspondence between Schmitt
and Benjamin, when only one letter exists! One would think that
they were regular pen pals. Is Derrida just factually incorrect, or is
he creating a dialogue where one should have existed? Or is he
forcing an identification that itself demonstrates a dissociation?
81 Derrida, supra note 1, at 46.
82 On this aspect of Schmitts critique of parliamentarism, as well as a comparison of
his theory of representation with that of Benjamin, see John P. McCormick, Feudalism,
Fascism, and Fordism: Weimar Conceptions of Representation and Their Legacy in the
Bonn Republic, in FROM LIBERAL DEMOCRACY TO NAZISM: POLITICAL AND LEGAL
THEORY IN THE WEIMAR REPUBLIC (Peter C. Caldwell & William E. Scheuerman eds.,
2000).
83 See Derrida, supra note 1, at 47.
84 See Dyzenhaus, supra note 21.
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Derrida remarks on conceptual distinctions that bring Schmitt and
Derrida together,85 yet the essay itself is a forced conjunction of
the two that only drives them further apart. Is this Derridas
demonstration, contra critics and distinct from Schmitt and CLS,
of how deconstruction discusses justice?
Derrida comes close to admitting as much when he implies
that Benjamin understood something fundamental that Schmitt
did not: liberalism only poses language in opposition to violence,
but does not understand the violence of language itselflanguage
as representation; language as means.86 Schmitts
Liberalismuskritik focuses on one but exacerbates the latter. It
points out the instability of politics that thinks it can replace force
with discussion. There is something idolatrous in the liberal or
communicative-socialist reification of language for Derrida. But
Schmitt lapses into a domination through language when he takes
up the representative narrative of sovereignty. The sovereign
person, the Reichspr?sident, is said to represent the whole German
people, ready for action, but in a way that does violence to the
people in any sensible understanding of them.
Benjamin holds out for a violence like the general strike,
which does not found a state, but undermines it without triggering
the chaos of the very civil war predicted or promised by realists
like Schmitt. Benjamin attempts to make way fornot actively in
the sense of programs, but passively in the sense of preparing to
receivethe messianic arrival of a world without structure. In
such a world, all relations would be governed like diplomatic ones,
only even more free of force than those of diplomacy; relations not
only beyond national law but also beyond interstate power.87
The aporetic legal dead ends that conclude Part I result from
law understood and deployed as means. But Gods violence,
destinal violence, is beyond meansat least when God is
thought of as the wholly other. This God is different from the
reason that informs Montaignes and Pascals conception of law.
Derrida does not want to make too much of the fact that this may
result from their status as nominal Christians, but it is significant.
Language in the Jewish tradition is originally not a means, not a
mode of communication; it only becomes such after the fall, after
sin.88 Christianity, particularly in the most Greek gospel, makes
God, man, and language all one prior to the fall. The fall and the
messianic coming become means to something else in the salvation
85 Derrida, supra note 1, at 48.
86 Id. at 49.
87 Id.
88 See id. at 50.
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narrative. Benjamins interpretation of the Jewish notion of
language attributes the development of good and evil to the
babble of instrumental language, not the fruit of the tree. The
universalization of language and linguistic definition of good and
evil stand counterposed to God, who alone can decide the
legitimacy of means and the justice of ends, which may be
different in every single case.89
Derrida intimates that Benjamins invocation of God is an
invocation of decision. Is this not exactly what Schmitt does in
Political Theology? By equating Gods miracle with the decision
of the sovereign, is Schmitt not the same as Benjamin? No.
Benjamins/Derridas God acts out of anger, that force which is
beyond means and ends: it has no object other than to show and
show itself;90 Divine anger is disinterested, immediate and
uncalculated.91 Mythic violence of the gods or the Christian
God has a purpose. It is strategic, seeking to instill fear,
manipulate humans, serve as exemplar, create a state. Schmitts
God/sovereign acts with the purpose of restoring an order; and in
the attempt to suppress those seeking justice in the Weimar
context, it is a decidedly unjust order. Such interventions are
seldom carried out without blood sacrifice. The anger of the
Jewish God is not sated by blood sacrifices as are these other,
more or less pagan, more or less Greek, divinities. The distinction
between Greek mythic violence and Jewish divine violence is
made most stark by Derrida in the following passage:
Instead of founding droit, it destroys it; instead of setting limits
and boundaries, it annihilates them; instead of leading to error
and expiation, it causes to expiate; instead of threatening, it
strikes; and above all, this is the essential point, instead of
killing with blood, it kills and annihilates without bloodshed.
Blood makes all the difference.92
Mythic violence lets blood, and sacrifices blood for its own sake,
while divine violence eliminates life for the sake of the living, not
at its expense, which the shedding of blood always is. A
comparison of crucifixion and circumcision comes to mind.93 In
89 See id. at 51. Two recent attempts to understand law generally through the prism of
Hebraic law are Arthur J. Jacobson, The Idolatry of Rules: Writing Law according to
Moses, with Reference to Other Jurisprudences, 11 CARDOZO L. REV. 1079 (1990), and
George P. Fletcher, Our Secret Constitution: Gettysburg and the Quest for the American
Nation (Apr. 1999) (unpublished selections presented to the Political Theory Workshop,
Yale University) (on file with author).
90 Derrida, supra note 1, at 51.
91 Id.
92 Id. at 52.
93 The pagan quality of crucifixion is fairly obvious. Freuds study of Moses suggests,
on the contrary, the rationalizing function of circumcision. SIGMUND FREUD, MOSES
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secular terms, the mythic sacrifices to the building of the state,
from Machiavelli and Hobbes to Schmitt, are to give way to this
other, mystic, kind of sacrifice. Benjamins divine decision cannot
be done by proxy or represented by a human sovereign, whether
Prince of Peace, il principe, Mortal God-Leviathan, or
Reichspr?sident, because this means sacrificing justice.94 The
aporetic legal dead ends of Part I are now shown to be sacrificing
justice to the law.
C. A Final Solution?
In his postscript to the two-part essay, Derrida attempts to
come to terms with National Socialism and the Final Solution.
Without reducing it to founding mythic violence, Derrida
nevertheless reads Nazism and, again, the Holocaustwhich he
acknowledges is not fully reducible to Nazismin terms of mythic
violences attempt to wipe out divine violence, the possibility of
the nonrepresenting, the non-instrumental, the non-bloodletting
form of violence.95 Following Benjamin, in whose name Derrida
posthumously conducts this analysis, he does not force this
distinction, and declares that he is not renouncing the
Enlightenment, imbued as it is, and had to be, with mythic
violence.
But Derrida breaks with Benjamin in fear of being even
remotely comfortable with any compromise between the two
violences that might leave the Holocaust as an uninterpretable,
unrepresentable form of divine violence. To succumb to this
temptation would mean reserving judgment on the Holocaust as
a result of the apparent bloodlessness of the mechanical mass
death at its core. Derrida then accuses Benjamins text of being
too Heideggerian, too messianico-marxist or archeoeschatological
for me.96 One is compelled to ask: is Derrida
serious? Derrida, who is obviously far more Heideggerian than
Benjamin ever was, collapses three very different strands of
thoughtdisallowing difference, if you willin the worst way. It
is Derrida who has been forcing Heidegger on Benjamin
throughout the essay. Derrida may demonstrate that he is not
Schmittian at all; how Heideggerian he appears is another story
altogether. But why the forced interpretation? What are we to
AND MONOTHEISM (Katherine Jones trans., 1939). Although, as we will see below,
Derridas analysis points to the abolition of any practice that involves bloodletting,
including the eating of meat, and presumably, circumcision.
94 See Derrida, supra note 1, at 55-56.
95 Id. at 60.
96 Id. at 62.
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think when a theorist who insists on dismantling forced identities
participates in the crude construction of what ought to be dealt
with in a more differentiated manner?
Here it is again important to raise the question of whether
Derrida has vindicated Benjamin, by not rehabilitating him in a
positive sense that may ultimately do injustice to his thought.
Derridas treatment of Benjamin, like Benjamins of the strike,
may be a clearer glimpse into nonmythic violence. In other words,
it is better to bring Benjamin nearer to the danger of being
remotely complicitous in the very constellation that impelled him
to take his own life. It is also better to suggest his affinity with
some vitalist or, broadly speaking, anti-liberal tradition, so that
the readers might come to see this difference themselves, so that
Benjaminor Walter, as he signs his own essaymight speak for
himself. Jacquess abrupt abandonment of Walter toward the end
of the work allows the two not to be mutually identified and allows
the latter to serve as a witness for himself. Specifically, Derrida
may seem soft on Schmitt in the essay, but only in some
superficial way that, in fact, more subtly, more unobtrusively, more
negatively, if you will, yet no less decisively, overcomes
Schmitt and the tradition that it is fair to say that he represents.
CONCLUSION
The critics will still ask insistently: Is Derridas treatise
ultimately practical or practicable? Does Derrida offer the study
of law anything more than salon radicalism and pretentious
obscurantism? Moreover, how is he free from any of the criticisms
leveled earlier against CLS?
One possible answer is this: more resolutely and more subtly
than is CLS, Derrida refuses to abandon the Enlightenment
element of mythic law, and thereby is much less susceptible to its
excesses than is CLS. CLS rejects much of the liberal
Enlightenment so bombastically, it embraces as definitive some
leftist version of it so unreflectively, and it shrugs off the question
of force so irresponsibly, that it is far more unfaithful to the
Enlightenment than is Derrida. Or, if CLS does address these
issue, it immediately retreats to a liberal fortress that it has already
razed to the ground. Derrida much more immanently traces out
the accomplishments of the Enlightenment legal tradition, like the
abolition of slavery, the declaration of the rights of man, etc. At
the same time, he indicates the coercive tendencies that attend
these advances. His essay suggests that one need not have an
overarching theory of justice to call for just practices; and that
coercively homogenizing strategies can be avoided without
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sacrificing progressive prescriptions about the contemporary
world.
Deconstruction, as Derrida (unlike CLS) practices it, does not
surrender law to justice, or conversely justice to law; yet it retains a
force of law. CLS wants to demonstrate the shortcomings of the
formal qualities of law, while Derrida more substantially makes us
understand their indispensability as well as their limits. Derrida
consistently resists the temptation to invoke some substantive
quality against the formalism of the Enlightenment, as does
Schmitt and, in the end, CLS, because he recognizes the violence
and mythology of such stands. Again, Derridas hesitation does
not necessarily spell political agnosticism, ambivalence, or
abdication.
The question of force, in particular, which is irresponsibly
ignored or played with in CLS, is taken very seriously by Derrida.
He gives us a much clearer idea of what the stakes of law with and
without force are, despite the abstract level at which he operates.
CLS, at the more practical level of legal analysis, actually seems
more removed from fundamental political questions. Its
supporters betray the fact that they have never worked through
the positivist quality of the notion of progressive law that they
inherited from Legal Realism. The latter can be forgiven for
underestimating the regressive ends to which law can be put
through appeals to popular power; CLS can not be so absolved,
privileged as it is with hindsight about World War II and its
accompanying events.
Derridas relationship to Enlightenment or liberal principles,
is not a retreat as are those of CLS. These principles are never
really absent from, or extraneous to, his considerations. The
mystic versus the mythic distinction that, in a remarkably coherent
way, makes the Enlightenment less and less mythic (that is, in the
critique of the blood sacrifice that still remains latent in the
Enlightenment, from its tolerance of, in notable contexts, capital
punishment, and in others, the eating of meat). But it does not
succumb to the mythic by declaring that the mythic can be
overcome here and now, or anytime soon. Derridas facilitation of
Benjamins engagement with the mythic is a constant, but never
complete clearing away or preparing the way for the messianic. In
the invocation of a supposedly progressive moment that merely
mirrors the authoritarian ones it criticizes, CLS appears crudely
incoherent, arbitrary, and violently mythic in comparison with
Derrida.
To conclude on a note of submissionspecifically, submission
to the so-called realists who want to see the practicable
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ramifications of Derridas approachI turn to a more applied
setting, a setting where law was as closely identified with absolute
injustice as anywhere in the world since 1945. David Dyzenhauss
uncompromising criticism of the apartheid judiciary in South
Africa brings to mind the messianic vision of law revived by
Derrida, through Benjamin, in Force of Law.97 Dyzenhaus
understands his own project to be a critique that reveals the
resources for justice, even in legal orders presumed least likely to
afford them; a critique that is relentless, leaving no shelter behind
which to hide, except finally fidelity to law.98
Derrida draws our attention to all of the intellectual
antinomies of lawabstract and concrete, formal and material,
rule and case, creation and destruction, decision and
undecidabilityand all the injustices retained within legal orders
after their establishment and perpetuated in their practice
specifically, the violence of regime-founding and regimeconservation.
But he also attunes us to the possibility of a justice
that is like the messianic, if not how to bring it into existence.
Thus an intuition about justice remains: one that delivers
retribution without letting blood, and one that establishes equality
without dominating and homogenizing the variety of the world.
97 DAVID DYZENHAUS, JUDGING THE JUDGES, JUDGING OURSELVES: TRUTH,
RECONCILIATION AND THE APARTHEID LEGAL ORDER (1998). On justice in a
postcolonial context more generally, see GAYATRI CHAKRAVORTY SPIVAK, A CRITIQUE
OF POSTCOLONIAL REASON: TOWARD A HISTORY OF THE VANISHING PRESENT (1999).
98 DYZENHAUS, supra note 97, at xiv; John P. McCormick, David Dyzenhaus Judging
the Judges, Judging Ourselves, N.Y.U. REV. L. & SOC. CHANGE (book review)
(forthcoming 2000).