|View As PDF
Derrida’s American legal experience was at Cardozo School of Law. He brought the rhythm of the Continental, the exoticism of the foreign, and the kudos of theory to the foundling Law School beginning in 1985. He joined the faculty, an unusual though prescient move on the part of the School, and for the decade and a half following Cardozo’s Deconstruction and the Possibility of Justice conference, he would visit the School for a fortnight or so each fall. He took this curious new world juridical assignment very seriously. He would attend classes, comment on seminar papers, deliver works in progress as well as public lectures.
He was inordinately generous, and even in the last years, older and in weaker health, he still came. The last time he visited, he talked on the death penalty and, as I was walking him down Fifth Avenue to his next engagement, he was nervous—he always was—and a little overwhelmed. Scuttling along somewhat shorter than me, he muttered gruffly yet humorously, “All these commitments, these are my death penalty.” I watched him disappear into the haze of Washington Square and marveled that despite that sense of penalty or pressure he had just spent three hours at Cardozo lecturing and answering interminable questions before rushing on to yet another engagement, a further commitment, one more drain on his time.
If Cardozo was known in the common rooms of law schools across Europe and America, in Australia and Japan, it had a lot do in those early years with the intellectual support and human warmth of Derrida’s commitment to the School. At the same time we should also acknowledge that Cardozo played an important role in introducing Derrida to America and in promulgating deconstruction as a method of interpreting law. Derrida became a star in legal studies through his connection with Cardozo. It wasn’t a one-way street. It was a friendship both political and ethical. It lasted to the end of his life.
He died last fall, and in spring 2005 an international gathering of scholars at Cardozo celebrated and critically appraised Derrida’s contribution to law and to theory. Under the rubric Derrida /America, the School reprised the earlier conference and traced the impact and influences of the French philosopher who in legal terms was the most influential of all. In an appropriately multilayered sense, Derrida’s contribution to legal thought, his roles as critic, scourge, oracle, and enfant terrible were excoriated and enjoyed again. The law school that gave Derrida his J.D. bid J.D. goodbye. The following remarks are extracted from my own contribution to the conference.
JACQUES DERRIDA. J.D. FOR SHORT. And J.D. of course is titular. It is Derrida’s monogram, forsure, but it is also the abbreviation for Juris Doctor. It signifies a lawyer or one wise in the law. If we are to recollect and celebrate his life in its juridical context and significance, then Jacques Derrida, J.D., is not a bad place to start. Technically, of course, and despite the legal sounding initials, J.D. was not a lawyer. He did, however, hold a visiting appointment at Cardozo, and some of his most influential articles were onthe subject of law or were delivered and published first in a legal forum. His essay on Kafka’s parable Before the Law signaled an early interest, and so too did his widely circulated paper on the law of genre. And then came his lengthy and hugely influential exposition, “Force of Law,” published in the Cardozo Law Review. He kept coming back to law: he inhabited its margins, searched for its supplements, dwelt on its traces.
Looking back, fondly and critically, I think Derrida’s influence on legal scholarship was significant enough for the abbreviation J.D. to be appropriate. He was a lawyer in the classical sense of a scholar who gave opinions on law, anamicus, a juris consultus, or further back still, in a meaning to be explained later, he was a nomikosor adviser to lawyers. He was equally, however, a philosopher and critic, a humanist, a literateur amongst the lawyers, an outsider looking in and causing a touch of panic. He looked at positive law from the perspective of a prior or first law, that of writing or, to quote a phrase, that of “structure, sign, and play.” Such was his gift, his genius, and his challenge. He played with the norm and with the law of genre. To follow that contribution, both the critical pricks and the public persona, nomos and mark, it is the law of writing in the writing of law that he called into question.
For those of us residing in the West—in the Anglophone world, before Derrida was Derrida in America, before he became “French Theory,” there was the baroque translation of his most complexwork: Of Grammatology. This was his study of the “gramma” or the accumulations of marks that make up writing systems. It was his emblematic work, his first American intervention, and I will take it, for that reason, as my initial theme.
My method is both simple and radical. I will focus on his gram in its various forms, as recognized by philologists and rhetoricians. Here is the list: J.D. the monogram interpreted through the pictogram, the logogram, the lipogram, the chronogram, the anagram and the nomogram. I confess I more or less made the last term up. It is the punch line. You will have to wait. Though not forlong. Just for a gram or two.
SO FIRST THE PICTOGRAM. My favorite instance comes from a paper delivered by Roman Jakobson’s collaborator, Louis Halle. He took an early manuscript of the 23rd Psalm and showed that if you turned the psalm on its side, it made a castle. He claimed that this provided a hermeneutic key to the poem: it was a defensive exercise, an apology, and so on. Quite right too, and very persuasive. But what about Derrida’s name? I have put it sideways, upside down, diagonal, and at first, I confess, it didn’t seem to illustrate much. Not apromising start; but wait, just look at the name inordinary cursive, and in time, depending on your font, you will see a ship. A firm initial capital “D,” the perilunar flourish forms a vigorous rudder, “D” the gubernator. The second “d,” in lower case, a funnel or a mast—depending upon your sailing prowess. The final “a” with its forward curlicue makes a prow, a fine Norse nose cutting through the waters on the way to new worlds. And what are we to make of such a pictogram, Derrida the ship? It is, I think, an appropriate image of a heterotopic space, the sign of a moving mark, a floating signifier. Hermeneutically that is apt, it marks as it must Derrida the friend, the ship who passes in the night, and Derrida the courier or messenger, the advocate of deconstruction, alone and passing through. Europe in America, doing the Continental.
That takes us nicely to the logogram, to the philology and etymology of the proper noun. In the old legal jargon, in a Latin gloss to the Corpus Iuris, we learn that the name in heres in the bones—nomina ossibus inhaerent—and this must be taken to mean that the name is its own law, the name as nomos appropriates the person, and it is the name that, to borrow from Baldus, makes the body walk. And so: Derrida, Jacques. The name is first and most obviously from the Latin derideo, to scoff at, to deride. This is not an obvious root. It should thus be noted that derideo has a stronger meaning than in English and implies that the person deriding has an advantage enabling him to do so with reason: thus to ridicule. Etymologically at least, Derrida derided for good causes; he was a scholar, an erudite practitioner of the supplementary interpretation, an irreverent philosopher who allowed words to have their say. Take the play on the name a little further, and we can note that in Medieval Latin, Derrida can be given a root in rida meaning ridge. There is a further cognate meaning associated with ad deridicula or to extremes, all the way to the ridge, to the limit as it were. And finally, as another supplement, there is an alternate etymology from the Old English ridere, from ridan to ride, which is the occupational name of a messenger.
Derrida is here again and variously the mercurial hermeneut, the itinerant figure of passage, of transmission of meaning. He is not, however, your usual messenger. His play upon interpretation, the elements of deconstruction and supplement, the philological ploys all make for an honesty, a candid refusal to reduce, that was early on interpreted to be somewhat mocking of accepted norms of academic discourse. Derrida was always most generous towords. He would play, mock, ride the ridge, push to extremes, and, peculiarly troubling for law, offer a Janus face, a double reading. So his name is not far from his nomos; his logogram is close to the mark. If one sought a figure that captured this naming, then my choice would be ‘epimone,’ also termed in Latin versus intercalaris. This figure refers to a verse that is inserted several times in a poem and carries—bears the burden of—its meaning. The figure of epimone originally had a musicalcontext and so suggests something of the lyricaland rhythmic, a submerged beat, a refrain. Puttenham gives an example from Sir Philip Sidney: “My true love hath my heart and I have his,” repeated three times in a poem to friendship.
It is a good example. Derrida was all out for friendship, and the epimone that his name suggests can be found most explicitly in his book on friendship, which has as its versus intercalaris the Aristotelian phrase, “Oh my friends, there is no friend.” For Derrida, I suspect, there was no friend because the singular and unique relationship of amity or amorousness necessarily escaped the abstraction of friendship, the public token of amity in the market. For Derrida, friendship occupied a space of silence and the decipherment of its intimations. Here I will use his own words from an interview after the death of Althusser, “Everything took place underground, in the said of the unsaid. ”i Hence, in a sense, to the intercalated phrase: there is no friend, only the becoming of friendship, the struggle towards friendship, the failed attempt at the self-presence of friends, to use Derrida’s own early terminology. In sum, friendship has its own law. That is what Jacques kept saying, what he repeated in his many different ways.
FROM LOGOGRAM TO LIPOGRAM. The third category of gram, the lipogram, refers to a type of witticism, the classical device of dropping a letter from a word or, as in the case of Tryphiodorus, from anentire Odyssey or epic poem. Addison, the Augustan satirist whose essay on wit is a principal source on this practice, cites Seneca on the lipogrammatists: “operose nihil agunt” (busy about nothing) and so indeed it is fortunate that Derrida never resorted to any simple lipogram, but he did famously drop an “e” and substitute an “a,” changing“différence” to “différance.” Différance is used in the argument that writing is presupposed in speech, that speech carries the trace of the written in a phonetically indiscernible manner. We can simply note that it is a gram, and in fact it is one of Derrida’s more famous grams, a repeated term, and maybe even another epimone.
Fourth is the chronogram. We can link it to the lipogram. If the latter drops a letter, the former reads those letters in a name that are also Roman numerals. The numerals in the name are then added up to form a number, the chronogram. Not only is the chronogram a species of lipogrammatic substitution, it also shows the power of the con-cept of différance which argues that all meaning is potentially undecidable, that all words arecodes or metaphors requiring the justice of interpretation. Choices have to be made, prejudices and precedents suspended, while the words are attended to, letters substituted, corruptions reformed, perhaps, and meanings put into play. That is the project that the court of literature imposes upon the practices of law. In this case the issue is the numerical value, the numerological significance, of Jacques Elie Derrida.
Add it up and we can truthfully say that wehave Derrida’s number. Here it is: CLIDID—100,
50, 1, 500, 1, 500. It comes to 1,152 if one counts Arabic numbers, the total is 18. First off, 1152 is
not an insignificant date. We can place 1152 at the cusp that marks the transition from the late Middle Ages to the Renaissance. It is the era of the troubadour lyric and the reception of Ovid’s Art of Love. The comedy of eros was rampant; the laws of love were being formulated and promulgated; the flowers of rhetoric were being sown; and we might hazard that philosophy would later and ambivalently watch them bloom. Put it differently, differantly even, the first postclassical—cisalpine—postcards were being sent, the love notes of the courtly lyric, the first laws of the gay grammar, not Socrates to Freud so much as A.D. to J.D., Arnaut Daniel to Jacques Derrida and beyond.
Add to that the number 18, the age of majority, birth as a symbolic subject, entry into legal subjectivity, and we hardly need the chronogram; it is hardly worth dropping the second D, the latter 5, so as to turn 18 into 13. But I will anyway and in honor of Derrida’s Jewish roots. Thirteen is the age of maturity for males in the Judaic tradition. We can add to that the observation that according to the Torah there are 13 divine attributes, and 613 commandments. Thirteen is a wonderfully ambiguous sign, it is constantly at play,lucky and unlucky, powerful and portentous. We could add, though this is cream on cream, ad derridiculaas it were, that 13 was classically a sign of power and that Zeus sat as the 13th and most powerful God. In Tarot, the 13th major arcanumis Death, meaning not ending but fresh beginning. So 13 is a kind of numerical equivalent of différance, and it too can be taken to mark an impossible space or fractured origin. And that is appropriate, granted that both the number and the concept are the products of lipograms, and both signify a peculiarly Derridean hermeneutic play.
THAT TAKES US TO THE FINAL GRAM, the nomogram. It is a term coined from nomos and gramma, a combination that joins order or measure to mark, trace, or sign.
Nomos is derived from the verb neme in meaning to appropriate and, by extension, to name. What did Derrida name? More precisely, what did he appropriate, measure, make his own? The trajectory I have traced through his name, his own gram, is one that moves from gay science to law, from postcards to legal texts, from justice to judgment. There is first the attention to play, and specifically the play of words. In his book The Post Card, Derrida plays upon the desire that subtends writing. He sends postcards and love letters as a species of literary acrostic that marks how every text is a fragment and exemplifies the hermeneutic necessity of attending to the lyrical and lexical,the unintended or marginal features of writing. His position was very consistent. The troubadour, the poet lawyer, the scholar who attends to the measure that underpins law, is a distant lover, an infinitely patient reader, and attentive to every detail, to every syllable, sound, and letter. Thus his injunction to his correspondents: listen. The protocol of listening is attention, waiting, doubting, holding on. Suspend the rush to judgment, do not be determined to decide, don’t decide in advance. Good readers are not afraid to retrace their path nor hesitant to examine how they came towhere they now are.
Lawyers decide. They judge, they determine, they legislate. There is no avoiding legal writs, the statutes, injunctions, subpoenae. Derrida asked, what comes before the law? What precedes the rush to judgment? How do we understand law in terms of whence it came? In his essay on the force of law, Derrida held up the institutional siteof legal judgment to scrutiny. He argued thatbefore law there has to be a moment of suspension, an instance of in attention to law, a hearing of the particular, person and event, prior to rule or determination. Justice meant holding backfrom calculus and judgment. The instant precedes the rule. It was an argument made in a legal forum and with reference to the Levinasian concep tof the face-to-face of justice, the call of theother. I will end by suggesting that, in fact, the legitimate force of law is for Derrida both richer and more complicated than his initial take in that essay suggests.
The clue lies in the epimone. For law to be just, the judge has to enter into a relation with the judged. The subject of judgment has to be seen and heard. That is axiomatic. The judge has to listen and remind the judged that law is something held in common. Justice says, in effect, “Oh my friends, there is no friend.” A curious reprise, astrange if implicit judicial utterance. But Derrida was very much about the implicit in the legal andabout the attitude or tone that came prior to law. For him friendship preceded law, it was the implicit relationship, the moment of amity being the expression of justice in the intimate space in which law was suspended. The judge cannot be a friend—there is no friend—but the judge exists amicably, in a loving relationship, amongst friends. Law will turn the singular into the general,the particular into the abstract, instance to rule. That is what law does; but before it does it, there is a moment of amity, an attention to friendship, to things held in common. It is a position that has its origins in Aristotle’s Ethics, of course,and in the aphoristic dictum that “good legislators pay more attention to friendship than to law, ”ii but Derrida’s genius was to take that principle seriously, to play with it, to apply it directly to the legislations of lawyers.
Friendship, living together, holding things incommon, inhabiting the same institution, these are the preconditions of law. Amity is nomos. Amity is more important than law because it isamity that grounds law and makes justice possible. That is Derrida’s main argument, his nomogram,his measure of law. He was in that sense anomikos, a term that appears in a few postclassical manuscripts, and that means someonewho is not a lawyer but one who advises lawyers, and specifically judges, on the meaning of law.Derrida. Nomikos. J.D. deserved his J.D.
There is a black and white photograph in our faculty seminar room. It shows Jacques at Cardozo in 1995. He is sitting and listening. Big hair. White as snow. He is leaning back, face turned, with a hand on his cheek. He looks younger then, but also tired, supporting his face with his hand, maybe hiding the blind side, the bad side. Whatever the tenor or pitch of the head, his gaze is generous, deep, attentive. He looks infinitely patient. He is attending the conference. He is waiting, waiting and listening to the lawyers talk as lawyers will. There is distance, time, stillness and a certain melancholy, a composed strangeness as well as an exceptional amicability in the portrait. He is not one of them, the eyes seem to say, but he is amongst them. Oh my friends, there is no friend. That is the lyrical and always potentially ludic position that his posture conveys. It is an image of intimacy, hung in a public place. A gesture of love in a professional domain. The photo remains. It shows Derrida from the inside, looking out. It offers a lesson for lawyers. Derrida the nomikos. J.D. in the process of getting his J.D. Or put it like this. He sent a nomogram. A postcard image. He was amicus curiae, a friendly critic of law.