The Following essay is written for "SOC354 - Sociology of Law" Course at Middle East Technical University. The essay received a full grade by Prof. Erdoğan Yıldırım.
Essay Subject: Elaborate on Jack Derrida's discussion of the aporia between law and justice) as they are presented in his 1996 address in Cordoza Law School with the title "Force of Law: The Mystical Foundation of Authority."
To understand Jack Derrida’s discussion on aporia between law and justice, one needs to first understand deconstruction. Developing his ideas on criticizing structuralists like Ferdinand de Saussure and Claude Lévi-Strauss, he works on literary theory to understand and shed light on concepts. One of his key ideas being deconstruction is about deconstructing and analyzing concepts using their relations with their opposites. He believes that border between binaries such as man and woman, strong and weak, hot and cold and etc. is not a clear and rigid boundary and one should study how this border is defined. Through deconstruction, he further suggests that there is usually a hierarchy in the binary and one of the sides is favored over the other despite being related and somehow dependent on the inferior side. he suggests that the binaries for example, the “man” will only have a meaning if the “woman” exists while being considered superior to woman. Similarly, the word “strong” will refer its meaning from “weak” despite being superior in public understanding. He believes that this binary hierarchy will lead to a limited vision and a limited ability to understand the world around us and make correct decisions, as a result of this, he developed “deconstruction” where one can break this binary hierarchy and have a widen perspective by reaching the state of `aporia`. Aporia meaning `doubt` and `puzzlement` in Greek is the state of not assigning to any side of the binary and living in the uncertainty between which he favors as a state of maturity.
Related to our discussion, one of the important binaries is the binary between law or justice and violence. Law and justice are two concepts which are usually used interchangeably but are essentially different as I will describe throughout this essay. At this stage, believing in the notion that law is the actualization of justice through does and don’t, and violence is `forcing` something on someone despite their own will, the general understanding is that law and violence are in a opposing binary and law is the superior side, meaning that we simply have laws in order to annihilate violence in the name of justice, but going through deconstruction shows that the law itself has the characteristic of `enforcement` enclosed in it similar to violence. A law is not a law without force since it should be imposed on people so that they follow it despite their own will. A simple example would be underage drinking where law must `enforce` itself on the underage drinkers to actualize itself. This analysis shows that the law is not so distinctly different than violence since it has the elements of `force` within it, which leads to the notion that law is not exactly the same as justice. (Force of Law, p233, Derrida)
At this stage, it would be important to understand what makes the force of law distinct than any other form of force and violence? Why it is that force of law is considered just, and other forces are considered as unjust?
At this stage, it would be useful to mention a quote by Blaise Pascal in his book called `Pensées`: “It is right that what is just should be obeyed; it is necessary that what is strongest should be obeyed. Justice without might is helpless; might without justice is tyrannical […] And thus being unable to make what is just strong, we have made what is strong just.” Which suggests that the main difference between the force of law and other forces is that the force of law is imposed by the stronger which lead to it considered as “just”. Going through this strain of thought will lead to the idea of “mystical foundation of the authority of the law” which aims to suggest that the foundation of the authority of law is not basically justice in its universal meaning; it is rather that our perception of the definition of justice is based on law and law nearly has no basis, hence it has a mystical foundation.
Throughout this essay, I have shown that law and justice despite looking similar are actually two separate a sometimes-opposing notions. The difference and opposition between these two are not as clear as the opposition of the examples that I have given in the first paragraph and also their relationship is not as simple as them, law tends to legitimate itself in the basis of justice and justice tends to actualize itself in the basis of law for applicability. (Force of Law, p250-251, Derrida) this opposing binary, calls for a deconstruction, which then leads to the aporia between law and justice. Derrida himself mentions some aspects of this aporia which I shall go through in the text.
The first aspect is the “ephoke of the rule” where he extends his texts on the judgement of acts based on law and justice. Fundamentally, it is important to judge actions in everyday life simply for applicability, but it is important to understand how should we do it? Derrida suggests that judging based on pre-established, pre-existing, and constant law which is written before us, and we are nearly unaware of its roots is unjust. He believes in a dynamical process of judgement rather than a constant process which just looks at those pre-existing notions and applies them without questioning. He seeks a system where we re-think, re-analyze, and even re-write our laws for each situation and for each judgement. This simply means that we should not take laws for granted or just simply because they are established, and we shall treat each situation uniquely. In the second and the third aspect of the aporia titled as `the haunting of the undecidable` and `the urgency that obstructs the horizons of knowledge` he further digs deep into the meaning of this aporia. He mentions how justice needs a crosscut decision to actualize itself and one cannot just wonder around without deciding. This leads to how every decision regarding whether something is legal or not, must go through a calculable process and how judge should always fully study and judge the case by a full strain of thought instead of only following the written procedures. He further mentions how every decision is open-ended in this sense and how each decision has the ghost of the `undecidability` hidden in it. He goes further by stating that every decision without going through this process of undeciding and studying each case, is not a free decision but a merely a continuous unfolding of calculable process. In the third aporia, he mentions how the idea of justice is infinite and incalculable in its totality but how this shouldn’t lead us to losing hope in the idea of justice by trying to reach to it in our every decision.
Overally, the three aporias together suggest while justice and law are different, we shall try to go through deconstruction (which it is safe to say that Derrida itself believes is justice) by not letting any previously existing law and order get taken for granted and as justice in itself, and then further trying to reconstruct or reinvent the logical and correct basis of law for that unique situation.
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