Derrida's Social Ontology: Institutions in Deconstruction 3031414942, 9783031414947

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Derrida’s Social Ontology Institutions in Deconstruction rya n a . gus ta f son

Derrida’s Social Ontology

Ryan A. Gustafson

Derrida’s Social Ontology Institutions in Deconstruction

Ryan A. Gustafson The New School New York, NY, USA

ISBN 978-3-031-41493-0    ISBN 978-3-031-41494-7 (eBook) https://doi.org/10.1007/978-3-031-41494-7 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

Acknowledgments

I first want to express my thanks for the support, guidance, and inspiration that I have been continually given by the Faculty of Philosophy at The New School for Social Research while I was a graduate student there. The first outlines of this project emerged through an independent study with Simon Critchley, who, through multiple changes in life and in writing, in many meetings and check-ins, generously provided guidance and encouragement that made it possible for me to develop the idea that eventually became this book. I also want to express my thanks for the feedback of Jay Bernstein, James Dodd, and Dominic Pettman on this manuscript. And I am grateful as well to Alan Bass, whose lectures on psychoanalysis and deconstruction first sparked my interest in Derrida as a graduate student. I have also been grateful for the support of many other colleagues and mentors among the faculty and staff that I have worked with at The New School over the last twelve years. I couldn’t have finished this book without philosophical friends at The New School and particularly conversations with Alex Altonji, Meg Beyer, Alexis Dianda, P.J. Gorre, John Milligan, Benjamin Norris, Joshua Pineda, and Hunter Robinson. Aaron Neber provided excellent and thoughtful suggestions for the final manuscript. I am grateful for Brian Kloppenberg’s continual support, especially over the last several years, which was vital to my being able to finish this project. Without the support, sacrifice, and encouragement of my parents, Crandon Gustafson and Dallas Jamison, none of this would have been

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possible, and this book is in part a tribute to them. Finally, I wrote most of these words, and certainly wouldn’t have been able to put them all together in the end, without the love and support of my partner, Caleb Shomaker.

Contents

1 Introduction  1 1.1 Du droit à la philosophie: Or Making Sense of Derrida  1 1.2 Deconstruction as Extramural Activity (Derrida’s Institutions I: The University)  7 1.3 Overview and Structure of the Argument 20 References 26 2 Of  Historicity: The Theme of Deconstruction (1962–1967) 29 2.1 Introduction: Deconstruction at the End of History 29 2.2 From Phenomenology to Deconstruction: The Question of Historicism in Derrida’s Reading of Husserl 35 2.3 From Destruktion to Déconstruction: The Concept of Historicity as the Heideggerian Opening of Derrida’s Thought  43 2.4 Deconstruction Contra Postmodernism: Revisiting the Stakes of the Derrida-Foucault Debate 51 References 70 3 Of  Declarations, Signatures, and Titles: Derrida on the Historicity of Institutions (1971–1986) 73 3.1 Institutional Presuppositions: On Derrida’s “Social Ontology”  73 3.2 Derrida on the Origin of Institutions: A Reading of “Declarations of Independence” 84 3.3 Reckoning Accidents: Toward a Theory of General Performativity 89 vii

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3.4 Titles and the Question of Criteria (Derrida’s Institutions II: The Law of Literature)102 References116 4 Of  Force & Right: Questions of Responsibility in the Later Derrida (1989–2004)119 4.1 On Ethical and Political “Turns”: Reframing the Normative Question as an Institutional Question for “Derrida Studies”119 4.2 Derrida on the Historicity of Right: A Reading of “The Force of Law”131 4.3 Deconstruction as—Perhaps—The Deconstruction of the Death Penalty (Derrida’s Institutions III: Psychoanalysis)152 References176 5 Of  Lies: A Concluding Post-Script179 Reference186 Index187

About the Author

Ryan A. Gustafson, PhD, teaches at The New School, New York City, USA. His previous writings on Derrida have appeared in The Undecidable Unconscious: A Journal of Deconstruction and Psychoanalysis and Derrida Today.

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Introduction

1.1   Du droit à la philosophie: Or Making Sense of Derrida The rhythm of this deconstruction cannot be that of a seminar or a discourse ex cathedra. This rhythm is first of all the rhythm of what is happening in the world. […] In this seminar, we are only beginning to reflect on, and take into account as consequentially as we can, what is happening. (Derrida 2009, 76)

What, ultimately, was the philosophy of Jacques Derrida about? Whether this question would be posed in sympathy or hostility, indifference or adoration, it certainly continues to dog readers of Derrida. And perhaps its persistence is not accidental. After all, Derrida self-consciously eschewed writing the kind of systematic treatise to which one might turn in order to find a satisfying solution to this question; unlike the authors of the tomes of the great transcendental tradition he so much admired—say Kant’s Critiques, Hegel’s Phenomenology or Logic, or Heidegger’s Being and Time—one cannot credibly direct a newcomer to Derrida’s writings to one single Great Book that would offer an architectonic summation of his project. Indeed, Derrida’s writing practice was intentionally and inextricably—and, for some readers, maddeningly—occasional. “In what you call my books,” he quips in an early interview, “what is first of all put in question is the unity of the book and the unity ‘book’ considered as a perfect totality” (1981, 3). From the standpoint of philosophical commentary, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 R. A. Gustafson, Derrida’s Social Ontology, https://doi.org/10.1007/978-3-031-41494-7_1

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statements like this—which, it should be noted, Derrida never stopped repeating—raise an important question: is it justifiable, when interpreting Derrida’s vast and variegated oeuvre, to identify some principle thought or central thesis organizing it, in its totality, when the philosopher in question persistently called into question precisely this kind of practice of reading? “What was Derrida’s philosophy about?” Is this even the right question to ask when reading this particular philosopher? In his text, “Privilege: Justificatory Title and Introductory Remarks,” the essay that introduces his collection Who’s Afraid of Philosophy? Right to Philosophy I, Derrida, looking back at his philosophical output to date, offers a helpful set of coordinates for thinking through this question of how to make sense of his project. There, with what had become by then a characteristic gesture, Derrida begins this introductory essay by reflecting on the words that compose the title of his book. Derrida refers to this gesture of beginning a text by analyzing its title as the act of “decapitalizing” (Derrida 2002a, 1), and he employs this word—decapitalizing—to invoke the convention according to which the legal title of a work (in this case, Who’s Afraid of Philosophy? Right to Philosophy I) should have its nouns, adjectives, and verbs capitalized. Namely, what sets these words apart as title—what makes these words title words—is this capitalization that announces a certain privilege. The privilege that Derrida says that title words enjoy is the privilege of doing without sentences, standing forth with a pretense of self-evidence. From this point of view, to decapitalize a title would be to question this “authority, of reserve and right” that every title presupposes, by deploying its words in sentences that sets their meaning adrift, such that “the power of the title dissolves and discussion begins.” And not only does discussion begin, but also, Derrida adds somewhat elliptically, “democracy too, no doubt, and in a certain manner philosophy.” It is in this spirt of decapitalization that I would like to introduce Derrida’s Social Ontology: Institutions in Deconstruction, by saying a few words about its title. In so doing, I will also have something to say about those title words that Derrida chose to analyze and decapitalize in Who’s Afraid of Philosophy?—for the words of that book’s title, “right to philosophy” (du  droit à la philosophie), are also fitting words to introduce the theme of Institutions in Deconstruction. As Derrida observes, as soon as one decapitalizes these words—“right to philosophy” (du droit à la philosophie)—and tries them out in sentences, one is exposed to at least three or four possible meanings depending on

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the stress that is placed on the single word à (“to”) or the sense of the word droit (“right”). First of all, Derrida’s title could be read as posing a question about the relationship between philosophy and “right,” where the latter term is understood as a reference to the juridical or legal order of a state. This ties into the second sense of the phrase that Derrida underlines: droit à la philosophie could also be understood as an injunction to talk about “right,” in this sense, to philosophers, to the extent that the juridical order immanently determines the practice of philosophy itself as a social practice. Third, Derrida notes that droit à la philosophie could be heard as a reference to a “right to philosophy” in the sense of human rights—that is, to a question about the conditions that determine who does and does not have access to the training involved in becoming a philosopher. And finally, droit à la philosophie can be read as a question about whether it is “possible to go right to philosophy” (3)— about whether it is possible “to go straight to it, directly, without detour,” without institutional training or accreditation. While Derrida telegraphically summarizes these themes in this introduction, what becomes clear over the course of the essays collected in Who’s Afraid of Philosophy? is that he does have a series of definite stances toward the plurality of questions announced in this title. For my purposes here, what is most important to highlight is that Derrida sees philosophy as something that one cannot “go right to,” as if philosophy corresponded to an innate experience; rather for Derrida, the right to philosophy is in fact a correlate of having access to training in particular and historically specific discursive traditions. Against the notion that philosophical practice could extricate itself from its socio-historical situation and determination as a finite and particular tradition, Derrida insists on the need to thematize its social, historical, and institutional conditions. In fact, in this essay Derrida is led to make a remarkable claim about the relationship of his own philosophical practice—deconstruction—to institutions. Deconstruction, Derrida suggests, should not only be understood as opening up new possibilities of thought through an interpretation of texts, but is just as much undertaken as a responsibility to transform the institutional arrangements in which it finds itself. It is in this context that Derrida offers a definition of his philosophy: deconstruction, he says, is “an institutional practice” (Derrida 2002a, 53), although one for which “the concept of the institution remains a problem.” The present book’s subtitle—Institutions in Deconstruction—is an invocation of these meditations by Derrida on the “right to philosophy”

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(droit à la philosophie) and the self-interpretation that Derrida developed of his own oeuvre during the 1990s, in works like this and elsewhere, according to which deconstruction needed to be understood as immanently involved in substantive questions of the ethical, the political, and the juridical. As I show here, the concept of “the institution” poses a “problem” for Derrida in the specific sense that he believes that the social and political world, to the extent that it is mediated by institutions, is constituted by a certain paradox that is worthy of philosophical reflection. This paradox, or—to use Derrida’s word—aporia, concerns the relationship between institutions and the “right” [droit]—the legitimate force or authority—that they appeal to as a condition of their functioning. For Derrida, the defining characteristic of an institution is that it is entitled to confer titles— socially constructed rights, powers, and possibilities of being—upon people and things. This act of conferral occurs through institutional performatives: a set of speech acts that are effective in conferring statuses and meanings upon people and things by virtue of the institution that authorizes them. Such performatives, as Derrida notes, can only function if the institutional context that they invoke is already presumed to be in force or rightful in the first place; indeed, it belongs to the structure of every institutional performative to always re-assert the authority of the institution from which it derives its own force to establish the social world. However, this right or entitlement of an institution to confer titles becomes paradoxical as soon as one asks about its origin: by what right has the institution been authorized to confer rights? In Derrida’s estimation, the response to this question seems to take the form of a circle or infinite regress: the entity that confers titles (the institution) can only do so if it has itself already been entitled, but this entitlement can always be questioned in turn. Although in “Privilege” Derrida refers to this feature of institutional life as “the institutional presupposition,” it is important to note that for him it is not a mere presupposition in the sense that it could be corrected, discarded, or avoided, but instead constitutes the condition for the possibility of holding oneself accountable to and for the socialpolitical world of the present—a world that has meted out normative entitlements to some and not others. Turning to  some of the title words of this book: Institutions in Deconstruction presents the first dedicated study of Jacques Derrida’s philosophy as a philosophy of institutions; it puts itself forth as a new reading of Derrida’s social and political philosophy insofar as it aims to treat, not only this or that particular intervention on Derrida’s part on an institution

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(others, as I trace below, have ably theorized Derrida’s interventions upon particular institutions like the university, the law, and psychoanalysis as discrete interventions), but instead to reconstruct and defend the concept of the institution that I argue subtends Derrida’s social and political thought as a whole by situating that concept in the context of his philosophical development. The motivation for pursuing this reading of deconstruction as an institutional practice is in part to consider what it would mean to take Derrida’s own later self-interpretation of his philosophy seriously—a task that I do not believe has been taken up in a systematic fashion, at least to date, in the scholarly reception of his work. Institutions in Deconstruction also aims to put Derrida’s thought into conversation with social and political philosophy more broadly by arguing that what is unique about Derrida’s account of social and political institutions is his attempt to reconcile an acknowledgment of their historicity with the possibility of their normativity; Derrida is distinctive, this study contends, in showing how thinking institutions as historical does not merely entail a skeptical negation of the social facts that they found (a la postmodern relativism), but is actually the condition for the possibility of our becoming responsible for the social and political world. Arguing against prominent readings of Derrida’s philosophy that have identified it with a method of reading, a normatively neutral logic, or a speculative ontology, this book not only aims to give an account of the theory of institutions implicit in Derrida’s writings, but also the notion of responsibility that Derrida suggests is entailed by thinking institutions as historical. Also arguing against a tendency in the reception of Derrida’s philosophy to neatly divide his oeuvre between a pre-ethical/political period and a properly ethical/political period, the study attempts to ask what it would mean to follow Derrida in not thinking about the relationship between his earlier and later works as that of an ethical or political “turn”—a term that he always rejected—but as in some sense a continuous thinking of institutionality. In this vein, my main argument here as a reader of Derrida is that the question of institutionality offers the best throughline for making sense of his philosophical output as a whole. This question, I want to suggest, is the royal road to a reading of this philosopher that will allow us to make sense of his belief that deconstruction is a philosophical practice defined by a substantively normative commitment to critiquing the social and political world as it is mediated by institutions. Deconstruction, in a word, should ultimately be understood asa practice of philosophical testimony, or truth-telling, about the violences that institutions authorize,

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undertaken as a response to an unconditional responsibility to those others with one shares a social world. In advancing this new reading of Derrida’s philosophy as a philosophy of institutions, I offer a reinterpretation of key texts by Derrida at each stage of his philosophical development: the book first argues for the need to situate Derrida's later, explicit philosophy of institutions by returning to a specific problematic in his writings from the 1960s—the question of “historicity”—by underscoring that the word “deconstruction” emerges in his work through Derrida’s engagement with a set of debates within phenomenological philosophy as a name for a new form of social-historical reflection (Chap. 2); it then traces how, during the 1970s and 1980s, this novel approach to thinking history that Derrida calls deconstruction came to inform his account of the origin of social and political institutions in particular as historical entities (Chap. 3); finally, it tracks Derrida’s analysis and critique of “sovereign cruelties” authorized by juridical institutions, and in particular his commitment of deconstruction to the cause of the abolition of the death penalty, as he increasingly engaged with the institution of psychoanalysis in an attempt to defend a new notion of democracy and rights during the 1990s and early 2000s (Chap. 4). Over the course of this itinerary I am also led to reassess the relationship of Derrida’s thought to a number of his contemporaries who shared or influenced his articulation of the concept of the institution: from Husserl, Heidegger, and Foucault (Chap. 2), to Austin, Searle, Lyotard (Chap. 3), and Nietzsche and Freud (Chap. 4). If this is the structure of the argument of the present study, by way of closing this initial section, I would like to say a word about its method. For this book is a new reading to the extent that it is structured as a series of essays that follow a genre of philosophical commentary that, for lack of a better term, I would affiliate with close reading. The aim here, in a word, is to make sense of Derrida’s words. In this vein, one of the protocols of the reading of Derrida that guides me here is that the manner in which this philosopher articulated his philosophy—the specificities of language and idiom, self-reflexivity, and linguistic play—that characterize its style are non-incidental features of its enactment as philosophy. While it may be tempting to translate this occasional philosopher into a philosopher who discretely operated according to the dictates of some speculative system or core logic, it seems to me that doing so risks putting one in the position of actually being unable to make sense of so much of what Derrida has written. While the present study cannot itself claim to be exhaustive, its

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essays should offer readers a model for reading and making sense of Derrida’s social and political philosophy and, by attempting to faithfully reconstruct the dominant intention of a few exemplary texts from his oeuvre, should make Derrida’s theory of institutions available to a wider audience. In making sense of this philosopher who attempted to make sense of a world that he saw as itself undergoing deconstruction, perhaps we are also giving ourselves a model for what a philosophical critique of our institutions at present might entail.

1.2   Deconstruction as Extramural Activity (Derrida’s Institutions I: The University) In his 1980 essay “Mochlos, or The Conflict of The Faculties,” Derrida begins by remarking upon a certain misperception about the philosophical enterprise most associated with his name: deconstruction. In the remark in question, Derrida, having become increasingly attuned to the public reception of his philosophy, goes on to put forward a counter-­interpretation of deconstruction in an attempt to save this word from a certain abuse. I begin this study of Derrida’s social and political philosophy by considering this counter-interpretation, since it distills the notion of deconstruction that I set out to reconstruct and defend here: deconstruction as a critical, philosophical reflection on institutional life. Before turning to the passage in question directly, however, it will be helpful to have the context for “Mochlos” in mind, for—as will soon become apparent—attending to the institutional contexts and singular occasions in which this philosopher wrote is indispensable to interpreting the content of his writing. And in attending to this context we will be led to consider the first of a series of exemplary institutions that preoccupied Derrida throughout his oeuvre: the University. Attending then to the textual and institutional context of “Mochlos”: first of all, it should be noted that this essay is the one that Derrida chose to place at the head of the last section of the second volume of Du droit à la philosophie (translated into English as Eyes of the University: Right to Philosophy 2): a collection of essays, spanning the 1970s and 1980s, that both contains Derrida’s reflections on the institutional conditions of the teaching and practice of philosophy, as well as a set of reflections on a philosophical tradition that has taken the question of right [droit] as its theme: the philosophy of right first propounded by Immanuel Kant.

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Notably, the institutional context of “Mochlos” is itself salient to this broader project of Du droit à la philosophie. Namely, as the note that is appended to “Mochlos” identifies, this essay itself was originally delivered in the context of an institutional event—“in English on April 17, 1980 at Columbia University, for the centenary of the founding of its graduate school and after Derrida has been given an honorary doctorate” (2004, 288)—and the substance of the essay is an attempt to reflect on this seemingly mundane institutional event and the possibility of events like it. Specifically, in “Mochlos,” having received this honorary title from Columbia, on the occasion of the commemoration of this institution’s founding, Derrida chooses as the theme of his lecture the question of the origin of this institutional power to entitle or legitimate the discourses of certain individuals and not others. In the case of this particular institution—a university—Derrida is specifically interested in interrogating the origin of the most basic activity that it entitles or authorizes: interpretation. Notably, Derrida broaches this theme of the socio-historical context of scholarly interpretation through an interpretation of a text: Kant’s major treatise on the university, The Conflict of The Faculties. As Derrida makes clear, he is interested in returning to Kant on this occasion in order to articulate a new conception of what he calls “university responsibility” (2004, 83). With this phrase, “university responsibility,” Derrida has in mind the ethical and political obligations of those who speak and act within the university. He turns to Kant in order to articulate this new notion of responsibility because he maintains that Kant’s treatise introduced a system of concepts for comprehending the university that has determined its institutionalization—from the University of Berlin that the Conflict inspired, to the institutions of higher education for which this University was prototypical—even if the Kantian idea of the university has been surpassed. Namely, for Derrida, a certain reflective maneuver and conceptual innovation is called for vis-à-vis the distinctions Kant introduced for thinking the university as the institution that licenses scholarly interpretation—a maneuver that Derrida will call “deconstruction.” However, as he also goes on to explain, such an innovation or transformation of our reflection on the university is called for not only for empirical reasons—that is, not only because the historical conditions that obtained in Kant’s time no longer obtain today (although that is certainly true as well)—but because Derrida contends that the logic of Kant’s system contains a contradiction that in some sense calls for its own transformation. As

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we are about to see, the transformation in question concerns two sovereignties: a certain paradoxical sovereignty that characterizes the university as an institutional form and the sovereignty of the state that entitles this institutional form with authority in the first place. As Derrida goes on to describe it, this auto-deconstruction of the Kantian idea of the university is concentrated in Kant’s attempts to defend a notion of free speech or scholarly autonomy that the university qua institution ought to guarantee. As Derrida recounts, Kant—whose own reflections on the university were influenced by his experience of the state censorship of his Religion Within the Limits of Reason Alone—sets himself the task in The Conflict of vindicating the notion of a particular license of speech for scholars as such and philosophers in particular. More specifically, Derrida observes, Kant set out to justify an unconditional autonomy for philosophical speech in relation to state authorities—the principle that “scholars alone can judge other scholars” (2004, 85)—whenever philosophical speech is engaged in an exercise of judgment about what is true and false. In this respect, as Derrida notes, Kant’s proposal for the institution of the university is peculiar in that it implies that the state, in its sovereignty, should license or entitle an institution that is itself insulated from and—up to a point—a counterpower to the governmental power that authorizes it: Kant asks of governmental power that it itself create the conditions for a counterpower, that it ensure its own limitations and guarantee the university, which is without peer, the exercise of its free judgment to decide on the true and the false. The government and the forces it represents, or that represent it (Civil society), should create a law limiting their own influence and submitting all its statements of a constative type (those claiming to tell the truth) and even of a ‘practical’ type (insofar as they imply a free judgment) to the jurisdiction of university competence and, finally, we will see, to that within it which is most free and responsible in respect to the truth: the Faculty of Philosophy. (2004, 96)

As Derrida notes, however, Kant is able to justify this maximal notion of scholarly autonomy only by positing a sharp opposition between speech that occurs within the walls of the university (intramural speech) and the speech of a scholar as it is received and interpreted by the public (extramural speech); namely, Kant will argue that so long as it remains intramural, the speech of the scholar should in a certain sense be sovereign, not subject to any state force, but as soon as the scholar’s speech can be

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interpreted as extramural—or even as engendering effects in the world— the state would retain the right to censor such an utterance. As Derrida puts it, glossing this opposition between the intramural and the extramural as it is articulated in The Conflict: the logical condition for the possibility of this unconditional license of philosophical speech within the walls of the University is, paradoxically, that this speech also be “responsible to a non-university agency” (2004, 86)—the State—to the extent that it circulates and engenders “political effects” outside of those walls. In other words, the logical condition for the possibility of this autonomy of philosophical speech is a certain heteronomy and subjection of philosophy to sovereign power. In this respect, Derrida remarks, the Kant of The Conflict asks that the sovereign enter into a peculiar kind of agreement in granting credit and licensing the university institution: Kant’s university implies a division or fissuring of the State’s sovereign power, but also a gesture of containment and suturing aimed at neutering philosophical speech of any public effect. As Derrida goes on to observe, in only allowing the university and its faculty of philosophy’s power of decision to be strictly “theoretical and discursive” (2004, 97)—much in line with the Kantian dictum of “What is Enlightenment?” according to which there would be an unconditional right to speech that is concomitant with an unconditional obligation to obey—Kant ultimately “defines a university that is as much a safeguard for the most totalitarian of social forms as a place for the most intransigently liberal resistance to any abuse of power, a resistance that can be judged in turns as most rigorous or most impotent.” Such an impotence is required, for as soon as speech becomes public it “would involve an action, an executive power denied the university.” However—and here is where the Kantian idea begins to deconstruct itself—this series of oppositions between private and public, intramural and extramural, constative and performative, etc. is, as Derrida observes, ultimately untenable, because it presupposes a theory of language that is self-contradictory: Kant needs, and he says so, to trace, between a responsibility concerning truth and a responsibility concerning action, a linear border, an indivisible and rigorously uncrossable line. To do so he must submit language to a particular treatment. Language is the element common to both spheres of responsibility, and it deprives us of any rigorous distinction between the two spaces that Kant would like to dissociate at all costs. It is language that opens the passage to all parasiting and simulacra. In a certain way, Kant speaks only of language in The Conflict of the Faculties, and it is between two languages,

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that of truth and that of action, that of theoretical statements and that of performatives (especially of commands) that he wishes to trace the line of demarcation. (2004, 98)

Following this, the beginning of the deconstructive moment of this text, Derrida goes on to say that the purity of these Kantian oppositions is ultimately undone by a certain characteristic of theoretical language that Kant himself must acknowledge. Namely, Derrida will not merely claim that Kant appeals to an empirically implausible interpretation of language when he maintains that it must be possible for there to be such a thing as language that is purely a statement of fact (theoretical statements), in contrast with a public sphere of linguistic acts that would be subject to the sovereign (performatives). Rather, Derrida argues that it is a characteristic of those very theoretical statements that Kant seeks to shield from the public realm that such statements make a claim to objective validity and thereby a claim to truth that, according to its own immanent sense, must in principle hold for the world. Appealing here to a notion of language that ultimately takes its inspiration from Husserl, Derrida here caches out this deconstruction of Kantian distinctions through recourse to the vocabulary of speech act theory. As he puts it in the following passage, as soon as one acknowledges that the sort of constative utterance, which a sovereign power allows to circulate within a university, makes a claim about and upon the world, according to its intention, the gesture of containment that Kant attempts to broker between the university and sovereign power is in some sense undone: The element of publicity, the necessarily public character of discourse, in particular in the form of the archive, designates the unavoidable locus of equivocation that Kant would like to reduce. Whence the temptation: to transform, into a reserved, intra-university and quasi-private language, the discourse, precisely, of universal value that is that of philosophy. If a universal language is not to risk equivocation, it would ultimately be necessary not to publish, popularize, or divulge it to a general public that would necessarily corrupt it. (2004, 98–9)

Notably, Derrida ties this structural publicity of theoretical language to the case of Kant’s own censorship for the Religion. For both in The Conflict and in his account of the Religion, Kant’s defense against censorship rests upon a plea that he only published these thoughts on religion as scholarly utterances not fit for public consumption. Kant will claim, namely, that the

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faculties ought to judge his book as harshly as they like, but the government ought to leave it free from coercion. As Derrida notes, however, Kant’s distinctions and precautions notwithstanding, “this in no way keeps the performative structure from being excluded by right from the language whereby Kant regulates both the concept of the university and thus what is purely autonomous in it, namely, as we will see, the ‘lower faculty,’ the Faculty of Philosophy” (2004, 99).  This essential performativity of philosophical discourse cannot be excluded by right by the philosopher (in this case Kant), even if he would want to dutifully attend to this obligation to the State to remain an intramural speaker, because, qua philosopher, all of his discursive acts—including even those discursive acts that would attempt to rope off a division between intramural and extramural speech, effacing his own performativity—necessarily intend to make a claim to objectivity that, qua objective, must be posited as shareable by those others (the public) with whom one also shares a world. In a word: no objectivity sans performativity. To insist otherwise, to protest against this fact, is itself to be engaged somnambulantly in a performative act that has failed to think itself as such. The reason that Derrida believes that the upshot of this deconstruction of the Kantian idea of the University is a new notion of responsibility is that as soon as one accepts that theoretical speech, such as philosophical speech, intrinsically involves making a claim upon the world, it becomes necessary to account for its social, historical, and institutional conditions of possibility. In this vein, Derrida suggests that even the most basic constative utterances and acts of interpretation that characterize the practices of academic life—“the interpretation of a theorem, poem, philosopheme, or theologeme” (2004, 101)—are always implicitly or explicitly engaged in “proposing an institutional model, either by consolidating an existing one that enables the interpretation, or by constituting a new one in according with this interpretation.” As Derrida puts it, invoking the interpretation of a text in a seminar, the most mundane of institutional acts within the university: When, for example, I read a given sentence in a given context in a seminar (A reply by Socrates, a fragment from Capital or Finnegan’s Wake, a paragraph from The Conflict of the Faculties), I am not fulfilling a prior contract: I can also write and prepare for the signature of a new contract with the institution, between the institution and the dominant forces of society. And this operation, as with any negotiation (precontractual, that is, continually

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transforming an old contract), is the moment for every imaginable ruse and strategic ploy. (2004, 101)

It is in this context that Derrida calls for a “politics of a community of interpreters” that would develop a reflective self-awareness of the institutional frames of reference that condition academic activity. In other words, what Derrida wants to ultimately invoke in this lecture is a responsibility to reflect philosophically upon the institutional situation in which philosophy occurs: “But today the minimal responsibility and in any case the most interesting one, the most novel and strongest responsibility, for someone belonging to a research or teaching institution, is perhaps to make such a political implication, its system and its aporias, as clear and thematic as possible” (2004, 102). As Derrida goes on to elaborate, there is a kind of pre-comprehension of the institutional situation “with students and the research community, in every operation we pursue together (a reading, an interpretation, the construction of a theoretical model, the rhetoric of an argumentation, the treatment of historical material, and even a mathematical formalization),” such that “we posit or acknowledge that an institutional concept is at play, a type of contract signed, an image of the ideal seminar constructed, a socius implied, repeated, or displaced, invented, transformed, threatened, or destroyed.” In this respect, institutional forms would not be an exogenous feature of philosophical or any other kind of theoretical reflection, but instead a condition of its possibility: “An institution is not merely a few walls or some outer structures surrounding, protecting, guaranteeing, or restricting the freedom of our work; it is also and already the structure of our interpretation.” And it is in the context of this account of institutions and interpretations that Derrida engages in that aside I began by mentioning, in which he offers a corrective counter-interpretation of the scholarly activity most associated with his name—deconstruction: Deconstruction is never a technical set of discursive procedures, still less a new hermeneutic method working on archives or utterances in the shelter of a given and stable institution; it is also, and at the least, the taking of a position, in the work itself, toward the politico-institutional structures that constitute and regulate our practice, our competences, and our performances. Precisely because deconstruction has never been concerned with the contents alone of meaning, it must not be separable from this politico-­ institutional problematic, and has to require a new questioning about responsibility […]. (2004, 102)

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Here, Derrida, contradicting the notion that deconstruction is a formal procedure of reading that could be abstracted from a worldly situation, instead argues that the acts of interpretation identified as “deconstruction” happen within a historical context, at the nexus of a set of forces and within a determining institutional context. From this perspective, to adopt a purely formalistic hermeneutics would itself imply a decision about this institutional situation—even if the decision is to exist in a kind of naiveté about that situation. From such a point of view, the interpretative act that locates the interpreter in the context of a tradition would be inseparable from an institutional framework in which such interpretation occurs. The upshot of Derrida’s argument here is that the field of possible interpretations of the signs that comprise the world needs to be understood as itself historically sedimented and potentially subject to a critical glance, even if it is true that one can always keep one’s eyes blinkered shut to the institutional situation that frames one’s interpretation. All of this is to say, as Derrida does in closing “Mochlos,” that the scholarly activity of interpretation—of making sense of the world—presupposes, whether naively or critically, some conception of the institutions in which this activity occurs; moreover, to be philosophically responsible as a scholar is not only to theorize the empirical institutional conditions of one’s activity but also to develop a reflection on institutions as such—the development of a philosophy of institutions. That is, if institutions in some sense lay down the law of interpretation—governing the field of possible manners in which one can make sense of the world—then this new notion of university responsibility requires thematizing what Derrida calls the “question of the law of law [droit du droit]” (2004, 109) that governs interpretation. With the phrase, droit du droit, Derrida throws into relief the order of these reflections: at stake is not the question of this or that empirical droit that entitles an institution to confer titles, but instead a question about the origin and justification of right—any right—as such. To ask about the “founding or foundation of law/right” that an institution like the graduate school of Columbia University presupposes, and that Kant took as his theme in The Conflict, is thus to not merely pose “a juridical question”—to the extent that positive laws and norms that legitimate a university can only presuppose the right to this legitimacy—and therefore “the response cannot be either simply legal or simply illegal, simply theoretical or constantive, simply practical or performative” in the sense that “the foundation of a law [droit] is no more juridical or legitimate than is the foundation of a university is a university or intra-­university

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event.” The conclusion that Derrida would like to draw here is that “if there can be no pure concept of the university, if, within the university, there can be no pure concept of the university,” as might be suggested by his deconstruction of the oppositions upon which Kant’s account of the university rests, this is because “the university is founded,” which is to say that it is finite, fragile, and fungible. In this sense, an institution like the university is always an event in that it makes possible something like a tradition—a set of protocols for making sense of things—that could not be anticipated in advance: “The foundation of a university institution is not a university event. The anniversary of a foundation may be, but not the foundation itself. Though such a foundation is not merely illegal, it also does not arise from the internal legality it institutes” (2004, 109). To found a university, and to found the right to a certain freedom of speech that this institution guarantees, is thus to take responsibility for the particularities of its historical tradition and in turn to leverage the impure tradition of which one is an inheritor. Here, in speaking about leverage and strategy, Derrida plays upon the Greek word mochlos—“a wooden beam, a lever for displacing a boat, a sort of wedge for opening or closing a door, something, in short, to lean on for forcing and displacing”—to describe the kind of maneuver that this responsibility for a historical tradition calls for, saying that “when one asks how to orient oneself in history, morality, or politics, the most serious discords and decisions have to do less often with ends, it seems to me, than with levers” (2004, 111). Mochlos, as a figure for deconstruction, would stand for the possibility of a radical pivot, break, or irruption within the history of an institutional form—in this case the university—and the attempt to orient oneself in thought and in the world in relation to that pivot. In closing this section, I turn to “The University Without Condition,” an essay collected in Without Alibi that is in many respects a sequel to “Mochlos,” and in which Derrida further specifies some of these points of leverage with respect to the university institution. Originally titled “The Future of the Profession; or, The University Without Condition (Thanks to the ‘Humanities,’ What Could Take Place Tomorrow),” in this essay Derrida proposes to consider the practice of interpretation characteristic of scholars as the act of professing, and in glossing this term, Derrida further develops this account of the responsibility implicit in scholarly activity, describing it as a practice of truth-telling—testimony—that cannot be described as either constative or performative.

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Derrida arrives at this account of professing by advancing a normative thesis at the outset of his essay, when he says that “the modern university,” defined exemplarily by Kant’s Conflict, “should be without condition” (2002b, 202) in multiple senses of the term. First of all, with this phrase Derrida wants to invoke the Kantian endeavor, which has left its mark on the “European model” of higher education, to institutionalize the possibility of something like free inquiry into the truth: an “unconditional freedom to question and to assert, or even, going still further, the right to say publicly all that is required by research, knowledge, and thought concerning the truth.” However, Derrida also interprets the unconditionality characteristic of this right in a non-traditional direction that would have the chance of breaking with this properly European model. Namely, speaking in the context of a conference that had enjoined Derrida to address the question of the humanities, Derrida notes that any free speech worthy of the name—that is, any right to speech—would also have to license a right to speaking about the history of the concepts and institutions through which such a right has come to be instantiated in the world. And so when it comes to the question of rights and human rights, Derrida will insist that the university cannot dogmatically insist upon a set of concepts that are imbricated in its own intelligibility as a liberal institution committed to these values, but must also welcome something like a reflection that could portend the chance or threat of its own historical transformation. That is, even if for historical reasons such a reflection must “in principle find its space of unconditional discussion and, without presupposition, its legitimate space of research and re-elaboration, in the university and, within the university, above all in the Humanities” (2002b, 203), it nevertheless remains the case that the meaning of the university and the notion of the human ought to be subject to an endless re-elaboration. 1 In saying that what is called the university is the proper institutional site for these questions, Derrida clarifies, his point is not to say that they should remain sheltered there in perpetuity, but in fact should remain there only 1  And Derrida will identify deconstruction with such a critical practice when he writes that: “From this point of view, at least, deconstruction (and I am not at all embarrassed to say so and even to claim) has its privileged place in the university and in the Humanities as the place of irredentist resistance or even, analogically, as a sort of principle of civil disobedience, even of dissidence in the name of a superior law and a justice of thought. Let us call here thought that which at times commands, according to a law above all laws, the justice of this resistance or this dissidence. It is also what puts deconstruction to work or inspires it as justice” (2002b, 208).

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to the extent that this allows for a kind of commerce with the public. For—and this is the third sense in which Derrida will say that the university should be “without condition”—this idea of the university as a site of endless discourse “does not, in fact, exist” (2002b, 204) for essential reasons. Namely, rather than treating this idea as if it had been factually instantiated at some point in history at a moment that it would be one’s duty to protect in its purity, Derrida wants to suggest that this idea of the university should be the source of what he calls “critical resistance—and more than critical—to all the powers of dogmatic and unjust appropriation” (2002b, 204) that characterize the world in which the university finds itself. Namely, if critique grants itself a certain right to criticize unjust appropriations of the university, what defines the hyper-critique of deconstruction is that it criticizes not only these forms of appropriation but also the very categories and terms through which such critique occurs as historically sedimented. What Derrida envisions, in other words, is an affirmation of the university institution as the site of an unconditional right to critique, which includes the right to critique the conditional and historically sedimented interpretations of that right and the system of concepts that underlies it. In licensing this unconditional right, the university thus sets itself, at least potentially, in opposition to “state powers […] to economic powers […] to the power of the media, ideological, religious and cultural powers, and so forth—in short, to all the powers that limit democracy to come” (2002b, 205). On the other hand, Derrida is quick to point out that, despite his defense of the unconditionality of the university as a normative principle, one should bear in mind that “this unconditionality exposes as well the weakness or the vulnerability of the university” (2002b, 206) as an institution, insofar as, in its autonomy, it is “a stranger to power, because it is heterogeneous to the principle of power, the university is also without any power of its own.” What does Derrida mean by this? Derrida’s claim is not that in fact and in practice the university is not bound up in power relations; indeed, as he is quick to note, the university is often prey to the re-­ imaginings of corporate and state interests. However, given this co-optation of the university, Derrida thinks it is important to raise a question about it that “is not merely economic, juridical, ethical or political,” namely: “Can the university (and if so, how?) affirm an unconditional independence, can it claim a sort of sovereignty without ever risking the worst, namely, by reason of the impossible abstraction of this sovereign independence, being forced to give up and capitulate without condition, to let itself be taken

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over and bought at any price?” For Derrida, responding to this question will ultimately require one to give up on the fetish of a certain idea of the university as ivory tower in isolation from the world and in placid complacency with the powers-that-be that ultimately limited the Kantian idea of the university. For it also needs to be said that the university has, although not for the first time, certainly in recent years—and even more so since Derrida delivered these remarks—been subject to a “virtualization” (2002b, 210) as an institution. Such that today one would need to ask: “Where is to be found the communitary place and the social bond of a ‘campus’ in the cyberspatial age of the computer, of tele-work, and of the World Wide Web?” (2002b, 210). For Derrida, this theme of virtuality, though undoubtedly pressing today, is actually proper to the university, in even its most classical forms, in the sense that the act of professing, as an act of speech, always rests upon a virtual structure: This word of Latin origin (profiteor, professus sum, eri; pro et fateor, which means to speak, from which also comes “fable” and thus a certain “as if”), to “profess” means, in French as in English, to declare openly, to declare publicly. In English, says the OED, before 1300 it had only a religious sense. “To make one’s profession” then meant “to take the vows of some religious order.” The declaration of the one who professes is a performative declaration in some way. It pledges like an act of sworn faith, an oath, a testimony, a manifestation, an attestation, or a promise. It is indeed, in the strong sense of the word, an engagement, a commitment. To profess is to make a pledge [gage] while committing one’s responsibility. “To make profession of” is to declare out loud what one is, what one believes, what one wants to be, while asking another to take one’s word and believe this declaration. I insist on this performative value of the declaration that professes while promising. (2002b, 214)

What Derrida wants to insist on here is that even if professing entails a constative element, an attempt to speak the truth, such a constative discourse always presupposes and takes place within a performative structure that, as we saw with “Mochlos,” commits one’s speech to a social and political world. As Derrida observes, performatives—even performatives that aim at the declaration and constitution of truth—can only give rise to works to the extent that they rely upon and are “authorized by a set of conventions or conventional fictions, of ‘as ifs’ on which an institutional community is founded and to which it agrees” (2002b, 218). Nevertheless, Derrida also wants to suggest that it is important, rather than giving up on

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the idea of the university, to still subscribe to the possibility of creating a space in which a “certain neutral theoreticism” (2002b, 218) has a chance to be practiced. The university institution is peculiar, in other words, because qua institution it is defined by a non-performativity, but this non-­ performativity is performatively constituted. Extending his skepticism, elaborated previously in “Mochlos,” about this limit dividing constative, intramural discourse, and extramural, performative discourse, Derrida notes that this “theoreticism limits or forbids the possibility for a professor to produces oeuvres or even prescriptive or performative utterances in general” (2002b, 219). And despite noting how archaic this notion of intramural space is both in fact and in principle, Derrida nevertheless maintains that “the idea of this space of the academic type has to be symbolically protected by a kind of absolute immunity, as if its interior would be inviolable” (2002b, 220), even if contra Kant, he will assert that “like all acts of institutions, those that we must analyze [when it comes to the institution of the disciplines belonging to The Humanities] will have had a performative force and will have put to work a certain ‘as if’” (2002b, 230–231). For Derrida, if every “as if,” which is to say, if every conditional event— every event that appeals to a shared set of conventions and a horizon that makes them possible—is intelligible within an institutional present, then “this small word, ‘as,’ might well be the name of the true problem, not to say the target, of deconstruction” (2002b, 234). And what is ultimately at stake for Derrida in undoing the constative/performative distinction, from “Mochlos” to this essay, is the thought of the exposure of the university institution to the world: It is there that the university is in the world that it is attempting to think on this border, it must therefore negotiate and organize its resistance. And take its responsibilities. Not in order to enclose itself and reconstitute the abstract phantasm of sovereignty, whose theological or humanist heritage it will perhaps have begun to deconstruct, if at least it has begun to do so. But in order to resist effectively, by allying itself with extra-academic forces, in order to organize an inventive resistance, through its oeuvres, its work, to all attempts at reappropriation (political, juridical, economic, and so forth), to all the other figures of sovereignty. (2002b, 236)

That is, what would always define the university and deconstruction within the university would be the possibility of a radical kind of civil disobedience. Rather than conceiving of this disobedience as intramural, Derrida, conceiving of this peculiar commerce between university and world as

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deconstruction, would insist that the latter is extramural. And it is in this context that Derrida makes the remarkable suggestion that the idea of the university and the institutionalization of a university “is not situated necessarily or exclusively within the walls of what is today called the university. It is not necessarily, exclusively, exemplarily represented in the figure of the professor. It takes place, it seeks its place wherever this unconditionality can take shape” (2002b, 236). All of this is to say that a commitment to the idea of the university, today, might call for institutional forms other than those that have been licensed at present—that the practice of testimony, or truth-telling, which characterizes the profession of professing, might be shared by others outside the walls of yesterday’s or today’s universities. And indeed, over the course of this study, we will see Derrida invokes a number of other institutional sites—literature, law, and psychoanalysis, to name just those that I consider below—that might bear this responsibility.

1.3   Overview and Structure of the Argument I begin this study of Derrida’s philosophy by citing “Mochlos” and “The University Without Condition” at length because it seems to me that their image of deconstruction as an engaged philosophical practice—enmeshed within and undertaken in response to a set of politico-institutional structures and a concrete historical situation—is one that has been somewhat lost in the reception of Derrida’s work, or at least in one dominant strain of that reception in recent years. For if throughout much of the 1980s and 1990s there were a series of attempts to identify an ethics and politics of deconstruction (most notably in Cornell 1992 and Critchley 2014), in recent years there has been a tendency to downplay the substantively normative, ethico-political stakes of deconstruction, in the name of reformulating this philosophical practice as an anormative ontology or logic (most notably in Hägglund 2008, as I treat at length in Chap. 4). And while it is true that there has been a recent historiographical and biographical interest in Derrida’s own activism in founding educational institutions both within and outside of France in the wake of the Haby Reforms, as well as renewed interest in the import of Derrida’s writings on the university for

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the philosophy of education and philosophical pedagogy, 2 with a few exceptions, Derrida’s reflections on institutions have yet to yield an analysis that acknowledges their centrality to his conception of philosophy as such. 3 As I describe in more detail in Chap. 4, in this study I join those who have sought to defend the substantively normative stakes of deconstruction by imagining what it would mean to take seriously Derrida’s suggestion of reading his philosophy—not just in one place or phase of his

2  See Wortham (2006) for a study of Derrida’s writings on the university as a model for “counter-institutional” thinking and Orchard (2011) for a study of Derrida’s interventions in particular in the French educational system and the Collège International de Philosophie. More recently, Cillian Ó Fathaigh (2021) has developed a more comprehensive account of the idea of critical institutions in Derrida’s terms by focusing on Derrida’s engagement with the Collège international de philosophie and the Parlement international des écrivains. One respect in which my approach differs from these authors is that they primarily restrict themselves to reading Derrida as a philosopher of institutions to the context of Derrida’s reflections on a particular institution: the university. That is, they make the question of institutions in Derrida’s philosophy a regional one (teasing out the implications of Derrida’s writings on the university for a philosophy of education) rather than the stronger claim that I make that deconstruction as such is a form of institutional practice and critique—one that extends beyond Derrida’s writings on education to address a variety of other social and political issues. 3  Samuel Weber’s Institution and Interpretation (2002) is perhaps the most sustained attempt at an account of institutions that takes inspiration from a deconstructive problematic. The essays collected in Institution and Interpretation are, however, not so much a reading of Derrida’s philosophy of institutions as an attempt to develop a theory of institutions on Weber’s own terms. It should be said that Derrida’s reflections on institutions were undertaken in part in an engagement with Weber’s writings that is especially marked in Derrida’s reflection on universities and the humanities. While the present book shares an affinity with Weber’s conception of deconstruction, it also represents a different path to the extent that it offers a reconstruction and defense of Derrida’s philosophy of institutions— including, up to, and after the period when most of the essays in Institution and Interpretation were written. In addition to Weber, Samir Haddad’s account of Derrida’s notion of democracy as involving a normative responsibility of inheritance (Haddad 2013) represents an approach to deconstruction that has an affinity with that of this study. Edward Baring’s The Young Derrida and French Philosophy, 1945–1968 (2011) is another important influence on this book, in its attempt to situate Derrida’s philosophical practice in relation to a concrete history of institutional structures. While Baring focuses primarily on the impact of educational institutional structures upon the philosophy of the early Derrida, his attempt to actually re-read Derrida’s philosophy in the context of its socio-historical and institutional backdrop is one that the present study would recommend throughout Derrida’s oeuvre.

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oeuvre, but instead as a whole—as a critical intervention upon institutional structures. 4 To this end, in this book I argue that Derrida’s principal contribution to social and political philosophy is his articulation of a novel philosophical theory of institutions that also calls for a substantively normative set of interventions upon the world. Namely, if the term “institution” can be said to refer to those entities that confer socially agreed upon statuses, titles, rights, and obligations, then my central claim here is that Derrida not only offers a distinctive account of the ontology or nature of institutional entities, but also delineates the conditions for the possibility of critiquing the social world to the extent that the latter is mediated by our commitments to institutions. I advance this reading of Derrida’s philosophy over the course of three essays, each of which develops an interpretive reconstruction of some fundamental concepts to which Derrida appeals in articulating his theory of institutions: the concepts of historicity (Chap. 2), signature, declaration, title (Chap. 3), force, and right (Chap. 4). My contention is that by giving a reconstruction of this battery of concepts one will be in a position to say what an institution is on Derrida’s account and also in what meaningful sense one can be responsible for the institutional world. These three essays also advance a chronological reading of Derrida’s philosophy as it developed in the mid-1960s until Derrida’s final writings in the early 2000s. To begin with the problematic of Chap. 2, it should be noted that the notion that the social-historical world and the normative commitments that institutions make possible within it are contingently constructed is not a thesis novel to Derrida. It is for this reason that, in Chap. 2, before turning directly to Derrida’s account of social and political institutions, I begin by arguing that it is necessary to reckon with what 4  It should be noted that the prominence of the theme of “the institution” in Derrida’s writings has been the subject of important discussions in a number of other commentaries on his work. In addition to the authors mentioned above, in the essay “Foundations” in Not Half No End: Militantly Melancholic Essays in Memory of Jacques Derrida, Geoffrey Bennington highlights that as early as Of Grammatology Derrida conceived of deconstruction as a discourse that sought to problematize the usual concept of an institution, suggesting that Derrida’s early reflections on the “instituted trace” would ultimately come to shape his “more thematised reflections on institutions and institutionality” (Bennington 2011, 23) in his later work. Here I aim to build on this literature that has recognized the significance of the theme of institutions in Derrida’s writings by offering an account that systematically traces the emergence of this theme in his oeuvre and that considers how Derrida himself came to center this theme in his later work.

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is specific to Derrida’s understanding of institutions as historical entities by turning to the concept of history that I want to suggest is operative throughout his analysis of them. For if Derrida has sometimes been derisively referred to as a postmodern relativist who nullifies all substantive claims to value, it needs to be said that his philosophical problematic— deconstruction—actually emerged in the context of a series of debates within phenomenological philosophy about history and philosophy and that Derrida himself was acutely aware of the problem of relativism as a reader of these debates. To this end, in Chap. 2 I argue that in order to understand Derrida’s writings on institutions, and in particular what is distinctly deconstructive about his thinking of institutions, it is crucial to turn to one of his earliest but also most abiding concepts: historicity. Specifically, following Derrida’s own characterization of his philosophical development, according to which “deconstruction” first comes onto the scene in his oeuvre as a name for an attempt to think a new concept of history, I turn to his analyses of the concept of history in both Husserl (Derrida’s Introduction to Husserl’s “The Origin of Geometry”) and Heidegger (his 1964–1965 seminar at the ENS, Heidegger: The Question of Being and History). In returning to these phenomenological reflections on history, I consider how what Derrida calls the deconstruction of metaphysics emerges as a name for the attempt, within and at the limits of philosophy, to think what philosophy has always tended to disavow: the historical. In contrast with the ahistorical idealisms of Plato and Kant, but also in contrast with the historicizing relativism of post-Hegelian Weltanschauung philosophy, Derrida finds in both Husserl and Heidegger an attempt to reflect on the conditions for the possibility of historical phenomena, and philosophy as a historical tradition, which gives him a template for later accounting for the historical character of the normative entitlements that institutions make possible. In Chap. 2 I also consider how Derrida’s inheritance of these phenomenological debates on history differentiates him, early on, from the perhaps most important rival account of both history and institutions within the so-called Continental tradition—that of Michel Foucault. Returning to Derrida’s “Cogito and the History of Madness,” I show how Derrida repurposes these phenomenological reflections on history, historicism, and historicity, in order to argue that the epoch in which he finds himself—the epoch in which philosophy has come to reflect on itself as a finite and worldly discursive tradition—is defined by an attempt to both maintain the philosophical while also not falling prey to a form of relativizing

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new historicism that Derrida identifies as a temptation for Foucault. What is at stake for Derrida here is the task of articulating the conditions for the possibility of criticizing historical structures like institutions—a task that, Derrida will insist, contra Foucault, calls for and presupposes an affirmation of the modern philosophical tradition that Derrida believes Foucault wrongly indicted in his reading of Descartes in The History of Madness. This engagement with Foucault, I argue by way of conclusion, is an important moment in his development, in that it provides Derrida a framework for explicitly thinking social and political institutions that he will deploy again in the mid-1970s. In this vein, in Chap. 3, I explore how, beginning in the mid-1970s and through the 1980s, Derrida begins to supply an answer to the question, “What is an institution?” by giving a quasi-phenomenological account of the origin of institutions and the social and political world that institutions structure. As I explore, central to Derrida’s theory of institutions is an observation about a certain aporia—a necessary and insuperable impasse of thought—when it comes to accounting for their origins. That observation is the following: on the one hand, socially agreed upon facts ultimately appeal to a set of legitimating institutions in order to be credible; on the other hand, one can ask in turn about the legitimacy of the acts that gave rise to those legitimating institutions in the first place. This—what Derrida refers to as “the institutional presupposition”—is perhaps the most important feature of his account of institutions, I argue, not because his observation of its existence is novel, but rather because his account of its status and, in particular, its ethico-political implications is distinctive within the history of philosophy. Namely, rather than dogmatically deriving the legitimacy of institutions from a metaphysical story that underwrites their credibility (a historical foundationalism) and rather than seeing in the irreducibly finite and constituted character of institutions and the social facts they make possible a sterile negation of their normativity (historical relativism), Derrida argues that attending to the historical character of institutional life is the condition for the possibility for understanding how the normative commitments authorized by institutions could be intelligible, and how we could be said to be responsible for them, in the first place. This leads me to trace how Derrida gives a distinctive account of the performative constitution of institutional structures. As I show, for Derrida, declarations, understood as those speech acts that found institutions, have a quasi-fictional or fabulous structure: it is a constitutive

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feature of a declaration qua performative to at least implicitly tell a certain constative story about the naturality of the social facts that it makes possible, but the truth of this fable narrated by a declaration is always in some sense presupposed by its own utterance. In this vein, I explore how, for Derrida, in order to think the logic of declarations as speech acts that found and invoke institutions  requires also thinking a logic of the signature—the source or subject of the declaration. This also leads me to revisit Derrida’s rapprochement with speech act theory, as I try to situate his engagement with that discourse on more productive grounds, including bringing Derrida into conversation with the discourse of social ontology initiated by John Searle. Finally, I close Chap. 3 by considering some exemplary cases of institutions in Derrida’s oeuvre during the 1970s: literature and law. As I show, through readings of his engagement with these institutions, for Derrida literature and law are exemplary as modern institutions to the extent that each of them inscribes, self-reflexively, a relationship to their own finite and thus irreducibly historical constitution within their own tradition— even if they at times also attempt to disavow their own historicity. Following his readings of Ponge and Kafka, I show how the basic structure of Derrida’s account of the origin of institutional life is enriched by the light that each of these authors sheds on the question of institutionality. If my aim in Chap. 3 is to show how Derrida describes the origins of social-historical institutions as normative entities, then in Chap. 4, turning to Derrida’s writings from the late 1980s and onward, I trace how Derrida comes to engage his own philosophy—deconstruction—in an institutional practice that is oriented by a certain idea of justice. While it is true that, as I show in Chap. 3, Derrida’s reflections on the institution of law, the juridical, the ethical, and the political, develop as early as the 1970s, my claim here is that it really is not until the later 1980s and early 1990s that Derrida is led to couple his reflections on the historicity of institutions to an idea of justice. This is what leads me in Chap. 4 to differ with prevailing accounts, within what has come to be called “Derrida Studies,” that have insisted that deconstruction cannot be substantively normative. As I try to show in this chapter, Derrida in fact deploys the same reflection on historicity that had been the abiding preoccupation of his earliest works in order to think through the historical character of the tradition of right [droit] and rights. Namely, as I explore, Derrida argues that a rational reflection on the idea of right and the rights tradition, understood as a merely finite and worldly tradition, implies a notion of unconditional

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responsibility for it. That is, when Derrida comes to say that “Deconstruction is Justice”—a statement that many Derrideans have basically stopped defending or have ignored altogether—I want to say that Derrida is appealing, not to some abstract and universal idea, but to a notion that, beginning with the emancipatory discourses of the French Revolution, belongs to a particular discursive tradition that has posited an essential relationship between the declaration of rights and their historical unfolding and perfection. Derrida takes it to be the case, I contend, that deconstruction stands for a critical attempt to transform this emancipatory tradition by acknowledging the finite, limited, and unjust forms in which it has been instantiated. As a case in point, in the final section of Chap. 4, I argue that Derrida’s late commitment to the abolitionist cause is in some sense a test case for this understanding of deconstruction as a critical institutional practice. Namely, in his seminar on the Death Penalty, I argue that Derrida finds an exemplification of what it would mean to deconstruct right in the name of an idea of justice—tracking the conceptual genealogy according to which the rights tradition has required something like killing. In so doing, I trace how Derrida avers a substantive normative commitment to life—what he calls, speaking in a psychoanalytic register, a certain life drive. In this vein, in reconstructing Derrida’s commitment to the politics of abolition, I am also led to reflect on his broader engagement with the institution of psychoanalysis as an example of an institution whose production of knowledge about human suffering and cruelty calls for an engagement with the social and political world. In concluding the book with this reflection on Derrida’s abolitionism I also end by taking stock of some potential legacies of Derridean deconstruction. In a concluding post-script on Derrida’s “History of the Lie,” I make my final argument for understanding deconstruction as a critical institutional practice by commenting on Derrida’s account of the practice of testimony—truth-telling—and its institutional conditions of possibility, while also identifying what I take to be the stakes and implications of the reading of Derrida advanced in this study.

References Baring, Edward. 2011. The Young Derrida and French Philosophy, 1945–1968. Cambridge: Cambridge University Press. Bennington, Geoffrey. 2011. Not Half No End: Militantly Melancholic Essays in Memory of Jacques Derrida. Edinburgh: Edinburgh University Press.

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Cornell, Drucilla. 1992. The Philosophy of the Limit. New York: Routledge. Critchley, Simon. 2014. The Ethics of Deconstruction: Derrida and Levinas. Edinburgh: Edinburgh University Press. Derrida, Jacques. 1981. Implications: Interview with Henri Ronse. In Positions. Trans. Alan Bass. Chicago: University of Chicago Press. ———. 2002a. Privilege: Justificatory Title and Introductory Remarks. In Who’s Afraid of Philosophy? Right to Philosophy 1, 1–66. Trans. Jan Plug. Stanford: Stanford University Press. ———. 2002b. The University Without Condition. In Without Alibi, ed. Peggy Kamuf, 202–237. Stanford: Stanford University Press. ———. 2004. Mochlos, or The Conflict of the Faculties. In Eyes of the University: Right to Philosophy 2, ed. Werner Hamacher and David E. Wellbery, 83–112. Stanford: Stanford University Press. ———. 2009. The Beast and The Sovereign: Volume I. Chicago: University of Chicago Press. Trans. Geoffrey Bennington. Haddad, Samir. 2013. Derrida and the Inheritance of Democracy. Bloomington: Indiana University Press. Hägglund, Martin. 2008. Radical Atheism: Derrida and the Time of Life. Stanford: Stanford University Press. Ó Fathaigh, Cillian. 2021. Critical Institutions: Alternative Modes of Institutionalisation in Derrida’s Engagements. Derrida Today 14(2): 169–185. Orchard, Vivienne. 2008. Jacques Derrida and the Institution of French Philosophy. New York: Routledge. Weber, Samuel. 2002. Institutions and Interpretation. Stanford: Stanford University Press. Wortham, Simon. 2006. Counter-Institutions: Jacques Derrida and the Question of the University. New York: Fordham University Press. ---2009, The Beast and The Sovereign: Volume I. Chicago: University of Chicago Press. Trans. Geoffrey Bennington.

CHAPTER 2

Of Historicity: The Theme of Deconstruction (1962–1967)

2.1   Introduction: Deconstruction at the End of History So one might be tempted to say—and this is the path Heidegger will take—that the philosophy of the Presence of the Present misses history. Heidegger: The Question of Being and History. (Derrida 2016, 143)

In Specters of Marx, the book-length version of his 1993 address at the University of California-Riverside conference, “Whither Marxism?,” Derrida took the opportunity to address recent debates that were then sparked by Francis Fukuyama’s thesis concerning an “end of history,” in order to address the relationship of his own philosophical practice— deconstruction—to a certain philosophy and politics of history. As is well known, according to Fukuyama, humankind could be said to have arrived at the “end of history” in the sense that it had discovered the ideal forms of social and political organization—free market capitalism and political liberalism—that now only needed time to be actualized. From Fukuyama’s perspective, the achievement of the “end of history” implied that whatever trace Marx’s critique of capital had made on the world would be swept aside in due course. In this context, writing against Fukuyama, but perhaps more importantly also answering Left critics who had called into question the criticality of deconstruction, in Specters Derrida goes out of © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 R. A. Gustafson, Derrida’s Social Ontology, https://doi.org/10.1007/978-3-031-41494-7_2

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his way to affirm his solidarity with a certain interpretation of the emancipatory project announced by Marx in The Communist Manifesto—even going as far as to say that what he calls “deconstruction” would not have been possible but for that project. Namely, contrasting his own position with that of both Fukuyama and doctrinal Marxists, Derrida argues that the legacy of Marx continues to haunt the present, not so much as a pesky ideology to be stamped out (as liberals like Fukuyama would suggest), nor as a system to be defended at all costs (as his imagined Left critics would hold that he has failed to do), but instead as an unrelentingly demanding call to justice. Echoing the Manifesto’s declaration that communism is a “specter” haunting European civilization, Derrida argues that both Marxism as a theoretical possibility and the historical forces that Marx analyzed should be thought of as “specters” too. Namely, for Derrida, the emancipatory project that Marx initiated still exists and has actually been inherited and taken up in sundry forms despite being disavowed by dominant institutional forces, leaving its mark on the world as a kind of revenant. On Derrida’s reading, even Fukuyama, albeit despite himself, testifies to a certain legacy of Marx: his evangelical thesis concerning the “end of history” aligns itself with an (albeit philosophically suspect) version of Hegelian and Marxist philosophy of history. For this philosophy of history, whatever does not conform to the ideal end or telos of its concept is merely an empirical accident: if actual exploitation, immiseration, and death are more widespread now than ever at the so-called end of history— that is, if there is a proliferation of empirical events that would seem to refute Fukuyama’s end of history thesis—this can be dismissed by saying that the facts of history have simply yet to approximate the ideal end to which they have been destined. It is in the context of criticizing the “end of history” thesis as an ideological and teleological conception of history that Derrida inserts a very lengthy parenthetical remark, in which he recalls that his own philosophical problematic—deconstruction—first emerged as an attempt to think a certain concept of “historicity” against philosophies of history like this one: Permit me to recall very briefly that a certain deconstructive procedure, at least the one in which I thought I had to engage, consisted in putting into question the onto-theo-but also archeo-teleological concept of history—in Hegel, Marx, or even in the Epochal thinking of Heidegger. Not in order to oppose it with an end of history or an anhistoricity, but, on the contrary, in order to show that this onto-theo-archeo-teleology locks up, neutralizes, and finally cancels historicity. It was then a matter of thinking another historicity—not a new history or still less a ‘new historicism,’ but another ­opening

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of event-ness as historicity that permitted one not to renounce, but on the contrary open up access to an affirmative thinking of the messianic and emancipatory promise as promise: as promise and not as onto-theological or teleo-eschatological program or design. Not only must one not renounce the emancipatory desire, it is necessary to insist on it more than ever, it seems, and to insist on it, moreover, as the very indestructibility of the “it is necessary” [il faut]. This is the condition of a re-politicization, perhaps of another concept of the political […]. (Derrida 1994, 94)

Derrida makes several claims in this somewhat elliptical passage about the origins of his philosophical project that are worth unpacking and questioning. First, he suggests that deconstruction—the “certain deconstructive procedure” that he believed he needed to adopt in his early works—is rooted in a critique of a certain concept of history found in writers like Hegel, Marx, and even Heidegger: history interpreted through the prism of a philosophical position that Derrida identifies as “onto-theo-archeo-­ teleology.” With this term Derrida wants to suggest that each of these writers, in their own way, can be construed as reducing historical happenings or events to some originary principle (arkhe) that determines their ultimate destination (telos), whether such an arkhe be God, Reason, Capital, or Being, etc. However, in criticizing these classical philosophies of history, Derrida notes that he is also not advocating for “anhistoricity,” which can be glossed here as any pre-Hegelian philosophical position that would dispense with questions about history and historical determination altogether. Moreover, Derrida also clarifies that his critique of these metaphysical philosophies of history should not lead one to identify deconstruction with a form of “historicism”—new or old—that would suggest that all claims to reason are merely contingently valid for the particular socio-historical situation in which they happen to be articulated. Derrida juxtaposes to these three approaches—or, better yet, non-approaches—to the historical what he calls “another thinking of historicity.” Significantly, Derrida identifies this other thinking of historicity with deconstruction. What Derrida has to say positively about this deconstructive procedure of attending to “historicity” is that it will allow one to do justice to the possibility of events: that is, the coming about of what, from the standpoint of the historical past and present, would appear to be impossible. In this respect, what Derrida is calling historicity has a formal similarity to the messianic—the advent or coming about of a justice undreamt of within the world—although, as Derrida specifies elsewhere in Specters, this should not suggest that Derrida is endorsing a commitment to the content of any revealed religion. To take what Derrida is calling “historicity” seriously, in

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other words, is to find oneself responsive and responsible in ways that one could not have predicted in advance. It is to forgo any kind of clean conscience about the present. Of course, taken on its own, this passage provokes more questions than it answers. Namely, one is tempted to ask: what exactly is this structure of “historicity” that Derrida invokes? How does bracketing what has been deemed true or just in the past or at present, in order to be open to the possibility of events, disclose an obligation to transform institutional arrangements, such as those of international law and the human rights tradition that Derrida goes on to discuss in Specters? In order to answer these questions—and in order to reckon with Derrida’s later reflections on institutions—in this chapter I want to suggest that it will be important to take a cue from Derrida here and turn to those texts in which he first engaged in the “deconstructive procedure” mentioned above: his reflections on the concepts of history, historicity, and historicism in his early writings on phenomenological philosophy. That is, if for Derrida (as we will see in Chap. 4) institutional entities are an indispensable condition of justice, and if for Derrida such entities are irreducibly social and historical in both their factual institution and normative justification, it will be necessary to reconstruct the notion of history—namely, “historicity”—that underlies Derrida’s understanding of the origin of institutions. As its title suggests, the thesis of the present chapter is that Derrida’s reflection on historicity—and thereby his reflection on institutions as historical entities—is not merely one among a medley of themes treated in Derrida’s oeuvre, but instead the theme that preoccupies what Derrida calls “deconstruction” across his writings. I pursue this thesis in two phases in this chapter. First, I begin by returning to a pair of texts that I want to suggest offer the most programmatic picture of Derrida’s early treatment of what he invokes as “historicity” in Specters: his monograph-length, 1962 commentary on Edmund Husserl’s essay, “The Origin of Geometry,” and his 1964–1965 seminar at the École Normal Supéreriure that was posthumously published as Heidegger: The Question of Being and History. The overriding claim that I advance in this section of the chapter is that Derrida came to define his philosophical project over the course of these commentaries by exploring a certain problem that confronted Husserl and Heidegger when these transcendental phenomenologists came to grapple with a phenomenon that had always been allusive for transcendental and ontological questioning: history. Namely, as I will trace, the young Derrida was principally interested in how, on the one hand, Husserlian phenomenology and its extension in Heideggerian “ontology” are rooted in a critique of the relativistic

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historicisms of the nineteenth century, while, on the other hand, this phenomenological tradition, in its fidelity to describing the structures that condition the constitution of sense or meaning, cannot merely avoid the problem of the historical determination of sense and meaning altogether. Namely, on the one hand, Derrida will argue that Husserl’s later philosophy represents perhaps the most significant attempt of transcendental philosophy to reckon with the finitude of history; on the other hand, as we will see in particular in Derrida’s commentary on Heidegger, the word “deconstruction” comes onto the scene in his writing as an attempt to render the Heideggerian call for a “destruction” [Destruktion] of those concepts that philosophy, including Husserlian phenomenology, has constructed in order to fortify itself against the finitude of historicity. As we will see, for Derrida, phenomenology’s relationship to the problem of history is structured as a kind of disavowal: on the one hand, phenomenology acutely registers the sense in which meaning can only come to be constituted in the context of a socio-historical tradition, but, on the other hand, phenomenology ultimately repudiates this intrinsic finitude when it interprets genuine history as only ever being possible for a European culture that has the idea of Science as its telos. Returning to Derrida’s engagement with phenomenological debates concerning history is ultimately important for the purposes of this study because it clarifies the sense in which Derrida’s own discourse on institutions does not fall prey to the kinds of facile charges of “postmodern relativism” that have been lobbed against it. For such charges are anachronistic to the extent that debates during the 1990s and 2000s concerning modernity and postmodernity, foundationalism and relativism, etc. had already been anticipated in this phenomenological reckoning with the problem of history and historicism of which Derrida had himself been an acute observer; that is, it becomes somewhat difficult to lob a simple charge of postmodern relativism against Derrida as soon as one appreciates the extent to which Derrida himself takes on board a Husserlian critique of the naïve historicism of his own day: the Weltanschauung philosophy of Dilthey and others. In the final section of this chapter, I argue that this is particularly evident in Derrida’s first published engagement with the writings of Michel Foucault in a 1963 lecture that was subsequently revised and published in 1967 in Writing and Difference as “Cogito and the History of Madness.” Foucault, I argue, is a helpful foil to consider in reconstructing Derrida’s account of historicity—and ultimately social and political institutions as historical entities—because Derrida sees in the project of Foucaultian archeology a contemporary attempt to account for the relationship between philosophical critique and historical structures that risks

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replicating the historicist position that Husserl critiqued. In this vein, I argue that the significance of Derrida’s early engagement with Foucault has been unfortunately misunderstood because Derrida’s text has primarily been read as a pedantic correction of Foucault’s apparent misreading of a passage from Descartes’s Meditations in The History of Madness.1 This conventional assessment of the Derrida-Foucault debate mirrors a commonplace and, I will argue, inaccurate historiography of twentieth-­century continental philosophy that identifies Derridean deconstruction with a merely bibliophilic preoccupation with undermining the presuppositions of canonical philosophical texts, in contrast with the concrete institutional interventions of Foucaultian archeology. In contrast with this reductive reading of the Derrida-Foucault debate, I argue that Derrida’s encounter with Foucault’s project can be read more fruitfully in the context of his early preoccupation with this phenomenological question of history and the debates concerning historicism that framed it. For if Derrida is critical of phenomenological teleology, he is no less critical of Foucaultian neo-­ historicism—and in fact deploys phenomenology’s critiques of historicism in criticizing Foucault. Indeed, as we will see in returning to this debate in the context of Derrida’s early commentaries on Husserl and Heidegger from the same period, Derrida does not merely dismiss the project of institutional critique that Foucault undertakes, but instead aims to clarify the methodological conditions of possibility of such a project. As we will see, what is ultimately at stake for the early Derrida in such a project is clarifying the conditions for the possibility of a critical attitude toward institutionally established facts. If Derrida shares this question with Foucault, however, where he departs from him is in insisting that any kind of critical project vis-à-vis institutions will depend upon the maintenance and transformation of another institution in particular: philosophy. It is ultimately by taking this detour through Derrida’s early writings on history and 1  My analysis in this section of the chapter builds upon recent attempts to revisit the Foucault/Derrida debate on more productive grounds, building on work collected in the volume Foucault/Derrida: Fifty Years Later: The Futures of Genealogy, Deconstruction, and Politics and in particular Samir Haddad’s “A Petty Pedagogy? Teaching Philosophy in Derrida’s ‘Cogito and the History of Madness,’” in its attempt to reframe each side of the debate from the standpoint of Foucault and Derrida’s respective visions of the status of philosophy, as well as Thomas Khurana’s “The Common Root of Meaning and Nonmeaning: Derrida, Foucault, and the Transformation of the Transcendental Question,” in its assertion that Foucault and Derrida’s agon boils down to where each of these thinkers falls on the side of a debate about the status of transcendental philosophy. The present chapter builds on this work by situating the Foucault/Derrida exchange in the context not only of Derrida’s affiliation with transcendental phenomenology but also more broadly his interest in the question of institutions.

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historicity that we will put ourselves in a position to understand what is distinctive about Derrida’s account of institutions as historical entities in Chap. 3.

2.2  From Phenomenology to Deconstruction: The Question of Historicism in Derrida’s Reading of Husserl As has been traced in a variety of studies of Derrida’s work, phenomenology is clearly the philosophical antecedent of Derridean deconstruction; nevertheless, the keen interest that Derrida paid in his early works to the phenomenological concepts of history and historicity in particular perhaps has not been sufficiently appreciated heretofore.2 For in his early commentaries on Husserl and then Heidegger, Derrida incessantly returns to a question that these phenomenologists raise—and that Derrida will come to raise in turn to post-phenomenological  contemporaries like Bataille, Blanchot, Levinas, and Foucault in his first major series of publications— concerning the problem of history for philosophy. At the outset, in considering these commentaries, it is important to clarify what Derrida takes to be the stakes of the problem of history for phenomenology. For on Derrida’s reading of them, Husserl and then later Heidegger are not so much interested in history qua phenomenologists for the sake of doing a phenomenology of history, i.e., undertaking a description and clarification of the ontology of historical objects that would take its place among other regional ontologies that phenomenology would clarify for the positive sciences. Rather, from Derrida’s perspective, the problem of history cuts deeper for phenomenology. Specifically, 2  The present study builds upon Leonard Lawlor’s Derrida and Husserl: The Basic Problem of Phenomenology and its thesis, advanced through a close reading of several of Derrida’s writings on Husserl, Heidegger, and Levinas, that Derrida’s early writings are preoccupied with the phenomenological problem of the genesis of sense. For Lawlor, while Derrida undoubtedly has critical things to say about Husserl, nevertheless the starting point for deconstruction is a certain phenomenology and “Derrida’s critique of phenomenology is always a critique of its teleology” (Lawlor 2002, 24) in particular, as opposed to a mere refutation of the phenomenological starting point for philosophy altogether. I differ from Lawlor, however, when he argues that Derrida “transform[s] this basic phenomenological problem of genesis into the problem of the sign (or the problem of language)” (2002, 22), in that this exclusive emphasis on language fails to locate the early Derrida’s much broader engagement with Husserl and with phenomenology as a reflection on history. The problem of the sign and language are undoubtedly Derrida’s point of entry to a degree here, but his critique and ultimate departure from phenomenology are not reducible to a difference with phenomenology as it relates to the question of language alone.

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Derrida’s contention is that if one grants, as both the later Husserl and Heidegger do, that the phenomenon of sense or meaning only ever comes to be constituted (Husserl) or comes to presence (Heidegger) in the context of some kind of socio-historical tradition, no matter how dimly one might be aware of this tradition, it is incumbent upon the philosopher to give an account of what makes this irreducible relationship to tradition— traditionality—possible. In other words, for methodological reasons, an inquiry into the possibility of historical experience (Husserl) or historical existence (Heidegger) comes to assume the status of a kind of first philosophy for phenomenology—the question of history becoming the ur-­ question of all transcendental inquiry. In contrast with Historie, understood as the positive science of history and factual historical happenings, Geschichtlichkeit or “historicity”—a word that appears in Husserl’s later writings, but is thematized more explicitly in Derrida’s estimation in Heidegger—comes to stand for this attempt of philosophy to develop a transcendental reflection on history and on philosophy’s own possibility as a world-historical phenomenon. As a reader of phenomenology, Derrida’s major interpretive claim, under the influence of Heidegger, is that as soon as phenomenology is exposed to and takes it seriously, the problem of history implies the need for a revision of its fundamental concepts and a transformation of the “transcendental” value of phenomenological research—and indeed even a departure from the phenomenological project toward another mode of reflection. Beginning first with Derrida’s Introduction to the Origin of Geometry, it is worth it to start by underscoring why Husserl’s late essay, “The Origin of Geometry,” carries such an outsized significance in Derrida’s view when it comes to addressing these questions—to the point that the young Derrida translated this approximately 25-page essay by Husserl and appended to it an approximately 150-page commentary. For at first blush it might seem strange that Husserl and then Derrida identify the case of the history of geometry as an exemplary one for thinking history in general. Now, according to Derrida, the historical question that Husserl poses about the “origin” of geometry carries a special significance during the period of the Crisis when history becomes a central preoccupation for Husserl because the case of geometry serves as an opportunity to reflect on the possibility of a “universal history in general” (Husserl 1989, 157).3 By “universal history” Husserl has in mind the history of any tradition of knowledge, such as geometry, that aspires to an objectivity that is not  Page references to “The Origin of Geometry” here refer to the reprinting of this essay in the English translation of Derrida’s Introduction. 3

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merely empirically true hinc et nunc, but posits itself as true transhistorically. Namely, for Husserl, the sense of geometry is “universal” insofar as the truths of geometry are valid, according to their inner sense, not merely for the empirical psyche of the individual geometer who first conceived of the geometrical project at a certain moment in history, but actually remains true for anyone else who would access and contribute to it at another time or place. In Husserlian parlance: the validity of geometry is that of an ideal and objective validity. Now, the reason that the case of geometry and its “origin” or history ultimately matters for Husserl is because he believes that the task of philosophy as a distinctive discursive tradition also presupposes the possibility of accessing the same kind of ideal and objective validities in both the theoretical and practical realms. In other words, Husserl’s attention to the question of the history of geometry is not an accidental choice when he attempts to develop a philosophy of history: this inquiry into the origin of geometry qua ideal science is ultimately undertaken by Husserl for the sake of vindicating a certain conception of philosophy as the search for eternal truths. Philosophy, Husserl posits, rests upon the same possibility as geometry: the possibility of a distinctly human experience of contributing to a project that is an infinite task. Nevertheless, for Derrida, this tendency in Husserl to defend the ideality of geometry and thereby the possibility of maintaining a relation to the ideal as such—a tendency that, he notes, marks Husserl’s project from its beginnings—is also in tension with another commitment of phenomenology: its insistence upon treating truths, and even the truths of ostensibly the most ideal of ideal sciences like logic and geometry, as resting upon the actual and concrete acts of some intuiting consciousness.4 That is, the infinite tasks of which Husserl thinks human beings are capable are always tasks undertaken by finite individuals—tasks that never needed to become a project for human beings in the first place. It is in this insistence on thinking consciousness as act and accomplishment that Husserl’s idealism, in Derrida’s view, will always be inoculated against at least facile charges of Platonism, but this also introduces a series of complications for transcendental phenomenology—complications that Derrida wants to suggest are

 Husserl’s “principle of all principles” in Ideas I is perhaps the best distillation of this core commitment of phenomenology: “Enough now of absurd theories. No conceivable theory can make us err with respect to the principle of all principles: that every originary presentive intuition is a legitimizing source of cognition, that everything originarily (so to speak, in its ‘personal’ actuality) offered to us in ‘intuition’ is to be accepted simply as what it is presented as being, but also only within the limits in which it is presented there” (Husserl 1982, 44). 4

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latent in Husserl’s project from the beginning and that come to a head in “The Origin of Geometry.” These complications are for Derrida particularly manifest in Husserl’s earlier work in his ambivalent reaction to another prominent theoretical current of his time, and one which offers a helpful foil for understanding what is distinctive about Husserl’s philosophy of history: the historicism or Weltanschauung philosophy of “world views” championed by Wilhelm Dilthey. As Derrida notes in his commentary on “The Origin,” citing frequently from Husserl’s 1906 essay, “Philosophy as a Rigorous Science,” Dilthey’s Weltanschauung philosophy was in a certain sense salutary in Husserl’s view to the extent that it criticized the then prominent tendency of psychologism to reduce the structures of experience to a mere effect of natural laws; that is, the Weltanschauung philosophers, by taking a “position in the factual sphere of the empirical life of the spirit” (Husserl 1965, 122) as it is given, could provide an immanent account of cultural accomplishments without falling prey to the kind of reductive naturalism that concerned Husserl. In so doing, these philosophers understood the worldview or Weltanschauung of a people to be its traditionalized or habituated wisdom—a kind of folk metaphysics whose description calls for other tools and methods of analysis than those of natural science. Nevertheless, for Husserl, the trouble with calling such a Weltanschauung a philosophy is that if “philosophy” comes to stand merely for the traditionalized wisdom of a particular social group, the possibility of philosophy as a “rigorous science”—science for Husserl referring here to the possibility of a discourse that could offer human beings objectively valid knowledge—is sacrificed, and the problem of skeptical relativism rears its ugly head, such that “each and every question is herein controverted, every position is a matter of individual conviction, of the interpretation given by a school” (1965, 166). This is what leads the early Husserl of “Philosophy as a Rigorous Science,” despite his admiration for Dilthey’s corrective to dogmatic naturalism, to posit a distinction between a Weltanschauung and genuine philosophy: whereas a Weltanschauung is an idea “lying in the finite” (1965, 191)—a world picture that renders things coherent, livable, and practicable in the present for a particular group of human beings— philosophy proper, insofar as it aspires to the status of objective validity, is guided by a commitment to a “supra-temporal” project that has “no relatedness to the spirit of one time.” The idea of science to which philosophy proper aspires for Husserl, in other words, is not merely a function of convenience or a ruthless pragmatism, but instead is meant to survive, serving “the perfection of posterity”; in contrast with the temporal values

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of a Weltanschauung, the value of science is in some sense eternal for Husserl.5 Thus, what ultimately distinguishes the idea of science, to which philosophy aspires as its telos according to Husserl, is the peculiar relationship that science maintains with its own historical character: insofar as it is universal, the idea of science refers to the establishment of a tradition that can be accessed, built upon, and developed, translating itself across generations. Now, for Derrida, what distinguishes the “The Origin of Geometry” is that in this text the conflict between these two tendencies of Husserl’s project reaches its maximum pitch. For in the “Origin,” Husserl is led by his phenomenological commitments to acknowledge that even if the validity of a science like geometry is not reducible to the status of a mere coping mechanism or psychological projection, it is nevertheless also the case that one can only ever access geometry in its universal sense within the context of a factual historical situation—that is, through the archive of geometrical knowledge as it has been recorded and handed down as a finite and worldly accomplishment. For Husserl, in other words, even if we take seriously that it is an essential characteristic of geometrical reflection to contemplate objectivities that are transcendent of the particular time and place in which such contemplation occurs, it is also true that— unless one is willing to appeal to God or some other speculative metaphysical principle to counter-sign the assertions of geometry—the only assurance that reason can provide itself for having faith in the geometrical project will be its own accomplishment as a tradition. What is at stake here is the ability of philosophy to avow something like history without sacrificing scientificity. In a word, the estimable project of geometry qua infinite task ultimately emerged from humble and finite origins—a finitude with which the phenomenologist needs to reckon. Thus, although Husserl, particularly in his earlier work, might appear to subscribe to a kind of conventional Platonism when he argues against the reduction of geometrical knowledge to the status of a merely psychological projection, his commitments to phenomenology lead him to maintain a very non-traditional conclusion: that a felicitous description of the manner in which the universal sense of geometry is available to us reveals that the particular history and tradition through which it has been handed down to us is an irreducible feature of its phenomenon—a kind of comet-tail that trails behind the 5  As Husserl puts it in “Philosophy as Rigorous Science”: “Science is a title standing for absolute, timeless values. Each value, once discovered, belongs thereafter to the treasure trove of all succeeding humanity and obviously determines likewise the material content of the idea of culture, wisdom, Weltanschauung, as well as of philosophy” (Husserl 1965, 191).

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most abstract geometrical reflections, easily missed but nonetheless always there.6 But if geometry is exemplary for Husserl, it is important to note, as Derrida underscores in his commentary, that it is not unique in this regard; indeed, the legibility of any social institution or practice that we encounter at present in what Husserl calls the “life world” always indexes some factual history through which it has been handed down to us.7 If geometry is exemplary in this regard it is because, as a universal form of knowing (and thus, in its immanent sense, omni-temporal), it is for Husserl nonetheless dependent on a particular institution—that is, even geometry, the most ideal of ideal thinking for philosophy, is interwoven with a certain facticity that irreducibly conditions its legibility.8 And Husserl maintains that this irreducibly historical character of cultural accomplishments like geometry, though for the most part an implicit feature of our apprehension of them, can become explicit to our reflection—that something like a “historical disclosure” (1989, 173) of them is possible. Indeed, to understand such 6  In an eloquent passage in the “Origin,” Husserl will speak about the sense of history that accompanies every geometrical intuition as a feature of its style: “Geometry necessarily has this mobility and has a horizon of geometrical future in precisely this style; this is its meaning for every geometer who has the consciousness (the constant implicit knowledge) of existing within a forward development understood as the progress of knowledge being built into the horizon. The same thing is true of every science (Husserl 1989, 159). 7  As Husserl puts it: “[…] to understand geometry or any given cultural fact is to be conscious of its historicity, albeit implicitly” (Husserl 1989, 173). 8  In this vein, Derrida lays particular stress on Husserl’s notion of Rückfrage or “return inquiry” as the approach one needs to adopt when attempting to “read” geometry as a historical phenomenon: “[…] by a necessity which is no less than an accidental and exterior fate. […] I must start with ready-made geometry, such as is now in circulation and which I can always phenomenologically read, in order to go back through it and question the sense of its origin. Thus, both thanks to and despite the sedimentations, I can restore history to its traditional diaphaneity. Husserl here speaks of Rückfrage, a notion no doubt current enough, but which now takes on a sharp and precise sense. We have translated it by return inquiry (question en retour). Like its German synonym, return inquiry (and question en retour as well), is marked by the postal and epistolary reference or resonance of a communication from a distance. Like Rückfrage, return inquiry is asked on the basis of a first posting. From a received and already readable document, the possibility is offered me of asking again, and in return, about the primordial and final intention of what has been given me by tradition. The latter, which is only mediacy itself and openness to telecommunication in general, is then, as Husserl says, “open … to continued inquiry” (Derrida 1989, 50).

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historical phenomena philosophically, for Husserl, presupposes the possibility of reflecting, not just on a particular history of science (as an aggregate of facts and empirical theories), but also on the general structure (essence) by virtue of which it is possible to have a relation to traditionality in the first place: Only the disclosure of the essentially general structure lying in our present and then in every past or future historical present as such, and, in totality, only the disclosure of the concrete, historical time in which we live, in which our total humanity lives in respect to its total, essentially general structure— only this disclosure can make possible historical inquiry [Historie] which is truly understanding, insightful, and in the genuine sense scientific. This is the concrete, historical a priori which encompasses everything that exists as historical becoming and having-become or exists in its essential being as tradition and handing-down. (Husserl 1989, 174)

Husserl’s claim, in other words, is that the factual Historie of a science or any other institution presupposes the possibility of something like a structure of historical consciousness, that this form of historical consciousness is capable of description, and that such a description is integral to grasping historical phenomena in a way that is genuinely understanding or “scientific.” This structure is what Husserl calls the “concrete, historical a priori.” While for previous philosophers, a phrase like “concrete, historical a priori” might be a kind of oxymoron—the “concrete” and the “historical” typically being separated on one side from the “a priori” or “universal” according to good logic—what distinguishes Husserl’s reflection on history, for Derrida, is his insistence on yoking the transcendental to the historical, remaining faithful both to the actual constitution of sense but without thereby devolving into a form of relativistic empiricism. For Derrida, at his best Husserl refuses to reduce the poles of “genesis” and “structure” that characterize any phenomenon. Namely, in Husserl’s estimation, by failing to attend to the subjective conditions of knowing (genesis), one runs the risk of falling into the absurd theories of speculative metaphysics, but if one reduces all sense to the genesis of an empirical

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psyche, it becomes impossible to account for its normativity (structure).9 As Derrida puts it, using italics to make this point about Husserl’s geometry: “geometry’s development is a history only because it is a history” (1989, 52). In this respect, Derrida argues, Husserl’s project calls for a reversal of the architectonic relations that have always characterized classical theories of knowledge (and even that of the early Husserl): rather than treating “history” or the “historical” as a determined region of knowledge with its own regional ontology—that is, rather than conceiving of the philosophy of history as a sub-discipline of philosophy—it turns out that the elucidation of the possibility of “sense and Objectivity in general” (1989, 34), which modern philosophy has always taken to be its task, will ultimately depend upon a prior reflection on the possibility of historical experience that all science presupposes. Nevertheless, if Derrida sees Husserl as having discovered this need to reflect on something like a radical finitude of history, he also sees Husserl as having forsaken this description whenever he insists that genuine history is not possible without the birth of European philosophy as a cultural accomplishment governed by a telos or destiny of Reason—that Husserl ultimately subordinates his phenomenological descriptions of historical experience to an implausible metaphysics of history of the kind that we

9  As Derrida documents in “‘Genesis and Structure’ and Phenomenology,” another important essay from this period, in his estimation, this genesis-structure problem animates Husserl’s project from beginning to end and “leaves every major stage of phenomenology unbalanced” (Derrida 1978a, 157). For example, what distinguishes Husserl’s project in his early Philosophy of Arithmetic is that, on the one hand, Husserl insists on the ideality of mathematical objects—their non-dependence on experience—while, on the other hand, Husserl believes that an account must be given of the “concrete genesis” (1978a, 157) that makes mathematics as a tradition of knowledge possible, i.e., the institution of mathematics. For Husserl, in other words, there can be no empirical-psychological deduction of number, for that would be to misunderstand the very sense of what a number is, and yet our explanation of number must account for its concrete genesis: “Husserl, for his part, seeks to maintain simultaneously the normative autonomy of logical or mathematical ideality as concerns all factual consciousness, and its original dependence in relation to a subjectivity in general; in general, but concretely. Thus he had to navigate between the Scylla and Charybdis of logicizing structuralism and psychologistic geneticism. […] He had to open up a new direction of philosophical attention and permit the discovery of a concrete, but nonempirical, intentionality, a ‘transcendental experience’ which would be ‘constitutive,’ that is, like all intentionality, simultaneously productive and revelatory, active and passive. This original unity, the common root of activity and passivity is from quite early on the very possibility of meaning for Husserl” (1978a, 158).

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saw Derrida describe in Specters.10 As we are about to see in the next section of this chapter, for Derrida, who is strongly influenced by Heidegger in this respect, the lesson of the phenomenological project is the need to “destroy” the system of concepts through which philosophy has fortified itself whenever it has appealed to the notion of a fate or destiny of Reason against the finitude of history. Indeed, for Heidegger, as Derrida reads him, for essential reasons philosophy has constituted itself as philosophy through a disavowal of historicity and this disavowal is exemplarily articulated in Husserlian rationalism. As we will see, turning now to what I want to suggest is effectively a sequel to his introduction to “The Origin of Geometry,” and Derrida’s perhaps most important text from this period, Heidegger: The Question of Being and History, Derrida ultimately comes to conceive of “deconstruction,” his own philosophical practice, as the translation of Heidegger’s call for a “destruction” [Destruktion] of philosophical discourse insofar as it has tended to produce systems of concepts that has disavowed historicity. As we will see, it is this definition of deconstruction as a reflection on historicity that Derrida will come to reactivate in his later works, when he will eventually recast "deconstruction" as both the attempt to describe the genesis of social and political institutions as historical structures and also the unconditional commitment to their historical transformation in the name of a certain idea of justice. 

2.3  From Destruktion to Déconstruction: The Concept of Historicity as the Heideggerian Opening of Derrida’s Thought11 In his 1983 essay, “Letter to a Japanese Friend,” Derrida infamously remarks on the difficulties of translating the word déconstruction, cautioning any prospective translator against presuming that this world already 10  As he puts it in the “Genesis and Structure” essay, for Derrida, Husserl’s commitment to this idea of Reason “force[s] Husserl to transgress the purely descriptive space and transcendental pretention of his research, and to move toward a metaphysics of history in which the solid structure of a Telos would permit him to reappropriate, by making it essential and by in some way prescribing its horizon, an untamed genesis which grew to greater and greater expanse, and seemed to accommodate itself less and less to phenomenological apriorism and to transcendental idealism” (1989, 157). 11  This section of  the  chapter is based on  a  review article of  the  English translation of Derrida’s Heidegger: The Question of Being and History (Gustafson 2017), previously published in The Graduate Faculty Philosophy Journal.

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“corresponds in French to some clear and univocal meaning” (Derrida 2008, 2). As he clarifies, such a presumption would be naïve in part because his own usage of this word was originally an act of translation itself: an attempt to translate and interpret Martin Heidegger’s concept of Destruktion into French. This has suggested to many of Derrida’s readers that he sees the intelligibility of déconstruction—not only the word but also his philosophical practice more generally—as depending upon a certain reading of Heidegger’s project and in some sense an extension of that project. Indeed, Derrida had already said as much explicitly in a 1967 interview, acknowledging that “what I have attempted to do would not have been possible without the opening of Heidegger’s questions,” and in particular, “what Heidegger calls the difference between Being and beings, the ontico-ontological difference such as, in a way, it remains unthought by philosophy” (Derrida 1981), 9). It is helpful to recall remarks like these in the context of the posthumous publication, in 2016, of the lecture notes for Derrida’s 1964–1965 seminar at the École Normal Supéreriure as the book Heidegger: The Question of Being and History. For while it is true that during his lifetime Derrida published several essays dedicated to particular topics in Heidegger’s corpus, it is also true that he never published the kind of architectonic study of Heidegger’s thought that is developed in this seminar. In this vein, in this section I would like to suggest that Derrida’s seminar can be read as offering an explication of the Heideggerian “opening” of Derrida’s thought mentioned in the interview above—an opening that Derrida always intimated and operationalized, but perhaps never sufficiently delineated, in his previously published writings. Crucially, as we will see, this Heideggerian opening involves Derrida in revisiting his early reflections on the problem of history in Husserl’s philosophy and provides him with the framework he will later employ for theorizing the historicity of institutions. While for my purposes here it will not be possible to give a complete account of the seminar’s labyrinthine journey through Heidegger’s corpus—for these teaching lectures are, above all, a meticulous, if at times dizzyingly digressive, exercise in close-reading—it is possible to identify the red thread that guides Derrida’s interpretation: his attempt to make sense of Heidegger’s call for a “destruction” (Destruktion) of the history of ontology—a destruction that, Derrida argues, culminates with Heidegger’s reflections on the relationship between philosophy qua ontology and history. As we will see, on Derrida’s reading of him, for Heidegger,

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philosophy in its dominant tradition as an ontology, culminating in the transcendental idealisms of Hegel and then Husserl, has been defined by a disavowal of history even when it has attempted to take history seriously. In this vein, the seminar’s initial gesture is one of clarification: according to Derrida, although Being and Time appears to bill itself as the positing of a new and “fundamental ontology,” this phrase is (as Heidegger himself ultimately realized as early as Introduction to Metaphysics) a misnomer; for rather than destroying extant ontology in order to propose a new, better, or more fundamental ontology, on Derrida’s reading at least, Heidegger’s writings, from beginning to end, all tend in the direction of attempting to wrest free from any ontological commitment, on the grounds that ontology by necessity has always been circular, metaphysical, and theological. As he puts this thesis, succinctly: “Heidegger’s path is the search for a way out of ontology in general” (Derrida 2016, 17). Here it is helpful to recall that, for Heidegger, any assertion about beings (ontic discourse), by necessity presupposes an interpretation of the beingness or nature of those beings (ontological discourse), but whenever philosophy has attempted to clarify what this “being of beings” is, it has circularly appealed to some other being as the origin, nature, or cause of beings (ontic discourse). As such, ontology has always effaced the difference between being and beings (the ontico-ontological difference): when it asserts that this or that origin, nature, or cause of beings is, it transposes a language pertinent to beings onto being—a transposition that Derrida refers to as “ontic metaphor.” As Derrida reads Heidegger, the reason that philosophy has never been able to pose the question of being—the reason that the question of being has always been decided in advance, dogmatically—is that it has literalized these ontic metaphors as ontology. As such, to reawaken the question of being is to refuse to use ontological language—and indeed the whole ontological procedure—except in quotation marks. According to Derrida, if one takes Heidegger’s project seriously, this implies a new task for philosophy: in the wake of Heidegger, “the work of philosophy in general, or rather, let’s say of thinking” (2016, 190), is to deconstruct these ontic metaphors—to think as metaphor for the first time what has always passed itself off as literally self-evident. To awaken philosophy qua ontology from its dogmatic slumber is thus to engage in a process of “de-metaphorization” (2016, 190)—a procedure akin to the phenomenological epoché, insofar as it requires one to bracket, or refuse to take as the basis for judgment, any dogmatic ontological determinations (i.e., ontic metaphors) sedimented in a given discourse.

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Importantly, the reason that Derrida describes this procedure as a de-­ metaphorization, and not an attempt to substitute one ontic metaphor for another—that is, not as an attempt to substitute one ontology for another—is the fact that what philosophy, in its dominant tradition has determined being to be, is in a certain sense irrefutable. For insofar as philosophy has determined the meaning of being to be presence, and insofar as the present is “the form of all experience and all self-evidence” (2016, 140), one cannot speak—at least not literally—of anything that exceeds the order of the present, for in speaking and thematizing, one necessarily has recourse to the very meaning of being (presence) that one might open to questioning. This is why engaging in the Destruktion or de-metaphorization of philosophy qua ontology can never mean “that one leaves the metaphorical element of language behind” (2016, 190). Instead, as Derrida traces over the course of the seminar, Heidegger can only find language for his discourse of Destruktion by indexing the metaphoricity and insufficiency of the (ontological) language available to him—crossing it out or placing it in quotation marks12—in his attempt to think a cluster of interconnected concepts that are irreducible to and in fact the condition for the possibility of presence: authentic finitude, temporality, and, above all, historicity. Derrida titles the seminar Heidegger: The Question of Being and History for this reason: thinking history is the royal road to reawakening the question of being as a proper question, because history cannot be thought if one privileges the present, as has been the case for philosophy qua ontology.

12  Derrida encapsulates this problem of language in the second session of the seminar as follows: “Whence are we to draw the concepts, the terms, the forms of linking necessary for the discourse of Destruction, for the destructive discourse? Clearly we cannot borrow them simply from the tradition that we are in the process of deconstructing; we cannot simply take them up again, that much is obvious. But neither can we, because destruction is not a demolition or an annihilation, erase them or abandon them in some conceptual storage room, as definitively outdated instruments. Because Destruktion is in its gesture like a Wiederholung, a repetition, it can neither use, nor simply deprive itself of the traditional logos. Simply to deprive oneself of it would be ‘precisely’ to give to traditionalism a meaning that is exactly the one that Heidegger does not want and that belongs to a moment of metaphysics— namely, the meaning of a beginning again from zero in the ahistorical style of Descartes or perhaps (things are less simple) of Husserl. […] Heidegger cannot and precisely does not want to accept the comfort of this ahistorical radicalism and, planning to destroy the history of ontology and ontology, he is always vigilant in making the most radical question of being and the most radical historicity communicate intrinsically and essentially” (2016, 23–24).

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As Derrida observes, in part following the Heidegger of the “Letter on Humanism,” within the history of philosophy, ontological and historical reflection have always seemed to be sundered from one another: It would be easy to show, and I will not dwell on it, that never in the history of philosophy has there been a radical affirmation of an essential link between being and history. Ontology has always been constituted through a gesture of wrenching itself away from historicity and temporality, even in Hegel, for whom history is the history of the manifestation of an absolute and eternal concept, of a divine subjectivity that, in its origin and in its end, seems to gather up its historicity infinitely—that is, to live it in the total of presence of being with itself (i.e., non-historicity). […] After Hegel, philosophy’s thematizing and taking history seriously took the form, precisely, of giving up on the problem of being. (2016, 21)

The argument that Derrida introduces here and that he sustains over the course of the seminar ultimately concerns the relationship of Heidegger’s project of destruction to post-Hegelian philosophy and with reading Husserl’s phenomenology as ultimately captured by Hegelian premises. As Derrida traces, for Heidegger, Hegel can be thought of the “last philosopher” in a very specific sense. Hegel is the last, not in the sense of a “factual limit after which the movement of history would be stopped, arrested”—that is, it is not as if there will no longer be philosophers after Hegel—but rather Hegel is last in the sense that in his philosophy “the horizon and the infinite opening of historicity has finally appeared as such, or finally been thought as such, that is, as infinite opening—the absolute infinite opening being thought as such” (2016, 4). However, despite the fact that Hegel, with his concepts of refutation and dialectical determinate negation, is unique in according a central place to history vis-à-vis philosophy, for Heidegger, as Derrida reads him, Hegel ultimately avoids a sufficient reflection on history due to his commitment to the metaphysics of presence and the teleology of history that secures presence.13 As such, for Heidegger, the destruction of ontology ultimately means a destruction of 13  As Derrida puts it: “In spite of the proximity between this Hegelian relation to the history of philosophy and the Heideggerian relation to the history of philosophy, there remains a decisive difference over which I would like to pause for a moment, to verify for the first time but not the last that, as is indicated by Heidegger’s itinerary and the increasing number of his references to Hegel, it is in the difference between Hegel and Heidegger that our problem is situated” (2016, 6).

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Hegelianism as the consummation of the ontological tradition. However, as was mentioned previously, what characterizes this destructive gesture, or as Derrida will put it, this “deconstruction, a de-structuration, the shaking that is necessary to bring out the structures, the strata, the system of deposits” (2016, 9), is that it does not say anything else “after the Hegelian—that is, Western—ontology that he  [Heidegger] is going to destroy.” For, as was mentioned previously, as Derrida reads him, what Heidegger’s project reveals is a kind of Hegelian law that ontology cannot be refuted or contradicted with another ontology, but can only be questioned from within. To avoid the dogma of philosophy, which has always tried to have done with history, but still to remain philosophy—or at least some kind of post-philosophical thinking—will require a new kind of gesture. As was mentioned previously, one of the main thrusts of Derrida’s account of historicity in Heidegger is his claim that Heidegger’s approach can be measured by how it departs from the approaches to history found in Hegel and Husserl. Here again, as with the Introduction to “The Origin of Geometry,” we see Derrida move from phenomenology to deconstruction. As Derrida traces, unlike Hegel, for whom the absence of historical science (Historie) implies an absence of historicity (Geschichtlichkeit), for Heidegger, “non-history, the absence of historical consciousness” presupposes something like Geschichtlichkeit no less. For Hegel, the European State is the condition for the possibility of history, memory, and transmission, such that cultures without a state are without history. By contrast, for Heidegger, something like a culture without history isn’t possible, insofar as historicity is an existential—or a categorial—feature of Dasein. Likewise, as Derrida traces in Session Five, despite the fact that for Husserl “every time phenomenology encounters history and makes it a theme, it is not a matter of metaphysics and a fortiori not Hegelian metaphysics” (2016, 104), nevertheless, Derrida maintains that “around the time of the Krisis [when] historicity becomes a theme for phenomenology, the teleology of Reason reappears and with it some very Hegelian accents” (2016, 107). As Derrida traces, for the Husserl of the Crisis, as we saw in his commentary on “The Origin of Geometry,” there are also people without history, in a sense very similar to Hegel, in that there are people with only an empirical history. Namely, for Husserl, as long as “the idea of science as the Idea of an infinite tradition” (2016, 107) has yet to be born within a culture, there can be no history in the proper sense: “so long as society is

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not inhabited by this project—a project that has determined the Greco-­ European eidos—it is merely an empirical aggregate.”14 Notably, Derrida, in summarizing this distinction between Heidegger’s position and the “Hegeliano-Husserlian” tradition, begins to articulate another concept of historicity in a parenthetical remark in language that anticipates the language that he will come to employ some thirty years later in the passage from Specters of Marx that I cited at the beginning of this chapter. In the following passage, Derrida suggests that taking leave from this Hegeliano-Husserlian tradition will force one to think history for the first time in the experience of a radical lack of assurance about the difference between reason and unreason, sense and nonsense, that philosophy, even when it appears to take history seriously, still dogmatically solidifies as opposition: So that, be it said in passing, if, against these great rationalisms and infinitisms of the historicity of meaning that Hegel and Husserl still are, one wished to re-affirm the finitude of meaning in order to free oneself from the theologico-­ metaphysical horizon that still remains that of Hegel and Husserl, one would, very curiously, have to reinstate, at a certain level and in a certain sense, a certain foundational a-historicity of meaning. I say ‘very curiously’ because one might seem thus to be going back to a-historicisms of a classical type—those of the seventeenth century—at the very moment one was supposedly shaking in this way the very foundation of metaphysics. The ahistoricity in question, then, would no longer be an eternal theological foundation, but a certain silent permanence of non-meaning, or rather an absence of meaning that precedes the opposition between meaning and non-meaning, an origin of meaning and history that would precede any alternative between Reason and unreason, between a truth and an untruth, 14  In this vein, Derrida also hearkens back in the seminar to the critique of Husserl that he had developed in the closing pages of his commentary on “The Origin of Geometry”: “And you can see clearly that to the extent that Husserl’s attempt remains Cartesian, that it determines historicity on the basis of the Telos of philosophy as science, that it accords the purest historicity to the exact sciences, that it remains a philosophy of the constituting subject, and so on, it indeed does belong to the age of the world-picture. It is enclosed in it. And to the extent that it does not think this closure as such, the historicity it is talking about is not historicity itself but a determination, an epoch of historicity itself, however immense and present this epoch might be. It was during this Weltbild that Husserl was able, in a necessary but limited gesture, to criticize Dilthey’s thesis of Weltanschauung” (2016, 132). Heidegger’s claim, as Derrida reads him, in other words, is that Husserl’s commitment to the idea of philosophy as rigorous science, although the lever of his critique of historicism, ultimately causes him to betray his own descriptions of historicity.

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without which these alternatives could not emerge, no more than could any historicity. I close this parenthesis here. Perhaps we will need to reopen it on another occasion. (2016, 108)

What I would like to suggest is that this parenthesis is in some sense constantly reopened by Derrida throughout his work. Namely, what Derrida wants to suggest here is that against both implausible metaphysical pictures of history (such as those of Hegel and Husserl, but also that of Heidegger, who Derrida frequently suggests betrays his own insights into this problem of historicity) and the ahistorical metaphysics of the seventeenth century (such as in Descartes) there is still the possibility of accounting for the conditions for the possibility of history—the possibility of accounting for a certain opening through which history is possible—without filling or assigning that opening some dogmatic content or destination. In other words, Derrida sees here in Heidegger’s thinking of the ontological difference, and the reflection on historicity that the destruction of ontology calls for, a new approach to thinking history without ground. This of course raises a question: what would it mean—positively—to think historicity in this groundlessness and without teleological assurance without simply becoming a relativizing historicist, as Derrida says he wants to avoid doing? For Derrida’s early reflections on the problem of history for transcendental phenomenology seem to end in an impasse: neither content with the implausible view that history functions according to the kind of aim or telos prescribed by classical philosophies of history, nor with the skeptical relativism implied by a positivistic empiricism or historicism, it is not wholly clear at the outset what it would mean for Derrida to think history otherwise. As I will try to suggest in the final section of this chapter, Derrida does not begin to fully crystallize answers to these questions until he turns to the writings of a contemporary and perhaps the foremost thinker of history and institutions from the twentieth century: Michel Foucault. For it is in his earliest encounter with Foucault during this period that Derrida begins to describe the kind of critical stance that is available to a philosophy that succumbs neither to teleology nor to historicism in reflecting on its own position within a socio-historical and institutionally conditioned situation. If the theme of deconstruction is the (phenomenological) theme of historicity, then it is during the debate with Foucault that the social and political valences of that theme begin to become explicit.

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2.4  Deconstruction Contra Postmodernism: Revisiting the Stakes of the Derrida-Foucault Debate Only an understanding from within the movement of modern philosophy from Descartes to the present, which is coherent despite all its contradictions, makes possible an understanding of the present itself. […] The genuine spiritual struggles of European humanity as such take the form of struggles between the philosophies, that is, between the skeptical philosophies—or nonphilosophies, which retain the word but not the task—and the actual and still vital philosophies. The Crisis of European Sciences and Transcendental Phenomenology. (Husserl 1970, 14–15) For what interests me in the name of deconstruction to be possible, philosophical culture must be alive and well. “Negotiations.” (Derrida 2002b, 13–14)

In his essay, “Must Philosophy be Obligatory? History Versus Metaphysics in Foucault and Derrida,” Colin Koopman, himself returning to this early debate between Foucault and Derrida, helpfully challenges a standard characterization of late twentieth-century French philosophy that reads the major thinkers of this period as members of a kind of postmodern school. According to Koopman, the application of the label “postmodern” to many of the major thinkers of this period in France has had the unfortunate effect of obscuring significant distinctions among them. As Koopman rightly observes, “postmodernism,” understood vaguely as a “certain late-century critique of the last bastions of high philosophy” (2016, 63), becomes a somewhat meaningless term when it is applied wholesale to thinkers as sundry as Lyotard, Baudrillard, Deleuze, Derrida, and Foucault. Taking aim in particular at a common tendency to conflate Derrida and Foucault with one another as “the two high priests of ‘French Theory’” (2016, 64), Koopman argues that a more careful analysis in fact “reveals two philosophers very much of different persuasions about the nature, future, and history of philosophy.” Now, as the title of his essay indicates, for Koopman, the debate that took place between Derrida and Foucault is ultimately a meta-­philosophical disagreement about the priorities of philosophy: the priority of metaphysics versus the priority of history for philosophical practice. In this debate, one party asserts that grappling with metaphysical questions is a necessity

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for philosophy (Derrida), whereas the other maintains that metaphysical discourse is simply avoidable for philosophy once it learns to take the historical character of all discursive practices—philosophy included—seriously (Foucault). On this reading, Derrida is the philosopher who—falsely, in Koopman’s estimation—insists that it is a necessity to attack those “last bastions of high philosophy” signified by metaphysics; by contrast, Foucault would be the philosopher who was finally able to exit from the aporias posed by first philosophy altogether, revealing philosophy to be merely one discursive practice among others: For Derrida, philosophy was that from which we cannot get away, even when we most desire to free ourselves from it—there always was, for Derrida, something obligatory about the residue of philosophy, even if that residuum cannot but be confronted as a kind of stain. For Foucault, by contrast, philosophy was the name of a discursive determination that has had a tight grip on us, to be sure, but whose operations are contingent and so capable of transgression. Thus Foucault throughout his work sought to recreate a new image of work according to which philosophy can maintain its achievements and elaborate its purposes without insisting that it itself is obligatory. For Derrida, a deconstructive methodology would reveal philosophy to be that in which we cannot but find ourselves entangled—or helplessly ensnared— even when we would want or hope to resist it. Philosophy would of necessity enroll us in itself, which means that it would enroll us in the meta-­accounting of the metaphysical. (Koopman 2016, 64–65)

While I share Koopman’s skepticism of the often facile conflations of Derrida’s and Foucault’s respective projects, in this section I will come to a very different conclusion about what this debate reveals about their respective visions of philosophical practice. For Koopman’s positing of a stark opposition between Derrida the (post)metaphysician and Foucault the methodological historicist, although certainly representing an advance upon the hasty conflation of these thinkers as “high priests of postmodernism,” ultimately obscures a distinctive trait about deconstruction as Derrida came to conceive of this philosophical practice. Namely, as I traced in the previous sections of this chapter, “deconstruction” actually comes to be adopted by Derrida in the mid-1960s as a name for a form of philosophical practice that attempts to reckon with history and with itself as a finite and historical phenomenon. In other words, metaphysics and history are not opposed terms for Derrida, as Koopman’s staging of this debate suggests; rather, the problem that the historical poses to philosophy is the

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theme of Derrida’s earliest works—a theme that I want to suggest Derrida shares with Foucault even if he ultimately comes to differ with Foucault about it. Namely, it is true, as we will see, that Derrida is critical of what he refers to as a “historicist” (Derrida 1978b, 57) tendency that at times becomes dominant in Foucault’s writing: the tendency to reduce the status of all discourse, philosophy included, to a mere symptom or reflection of the empirical historical structures and contexts that inform discursive practice; nevertheless, in so doing, we will also see that Derrida maintains, in the positive moment of his essay about Foucault, that “paradoxically, what I am saying here is strictly Foucauldian” (1978b, 54) and that Foucault’s project ultimately points to the need for “accounting for the very historicity of philosophy” (1978b, 309)—a project that Derrida in some sense identifies with his own and that he will go on to redescribe in terms of the question of institutionality. This is all to say, by way of introduction to it, that the debate between Derrida and Foucault is not so much “history versus metaphysics,” as Koopman suggests, as it is a debate between competing interpretations of the meaning of history for philosophy. Although, as we will see, Koopman is right that Derrida does in fact grant a certain prerogative to philosophy among other discursive practices, the rights that Derrida accords to philosophy are by no means given the status of an ahistorical and natural given. As it comes to be described in “Cogito and the History of Madness,” for Derrida, philosophical practice is only possible as a finite and worldly tradition that could just as well have never been and might not be in the future, and grasping this aspect of philosophical practice is integral to understanding it as a critical intervention upon a history of institutions. * * * Turning now to the details of the Derrida-Foucault debate, it is worth noting at the outset that the disagreement between Derrida and Foucault occurs on ground where one might not expect the question of history or institutions to arise at all: a single paragraph in Descartes’s 1641 treatise, Meditations on First Philosophy. Namely, in his History of Madness, at the beginning of its second chapter, “The Great Confinement,” Foucault had argued that when the meditator in Descartes’s text introduces radical doubt as a method for achieving certainty, it is highly significant that, in so doing, the meditator also conjures an image of “the mad” and “the insane” in order to make it clear that such people are not like the meditator when

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the latter calls into question the reliability of sense-experience as a source of knowledge. In the passage in question, the meditator, having resolved to discard all beliefs that have been founded upon sources of knowledge that have proven to be dubious even once, determines that it is necessary to rule out sense-experience as a foundation for cognition; however, the meditator then suddenly recoils and wonders aloud whether they have gone too far in calling all sense-experience into question, for although the meditator can acknowledge some obvious cases in which our senses deceive us, the meditator also asserts that there are some mundane truths about which it would be ludicrous to express any doubt: Yet although the senses occasionally deceive us with respect to objects which are very small or in the distance, there are many other beliefs about which doubt is quite impossible, even though they are derived from the senses— for example, that I am here, sitting by the fire, wearing a winter dressing-­ gown, holding this piece of paper in my hands, and so on. Again, how could it be denied that these hands or this whole body are mine? Unless perhaps I were to liken myself to madmen, whose brains are so damaged by the persistent vapours of melancholia that they firmly maintain they are kings when they are paupers, or say they are dressed in purple when they are naked, or that their heads are made of earthenware, or that they are pumpkins, or made of glass. But such people are insane, and I would be thought equally mad if I took anything from them as a model for myself. (Descartes 1984, 12–13)

On Foucault’s reading, this moment in the Meditations is significant in that it is symptomatic: it indexes the historical epoch in which Descartes was writing and which Foucault recounts in the rest of “The Great Confinement.” As he documents in that chapter, for Foucault “the age of reason” (Foucault 2006, 44) that dawned in Descartes’s seventeenth century was defined by a general cultural project of silencing the mad in the name of institutionalizing a rational form of life. From this point of view, when Descartes stages the meditator as being opposed to the mad and the insane, it is no accident; for insofar as disidentifying oneself from such figures was at least an implicit prerequisite to assuming the cultural status of intelligible subjectivity, Descartes could leave room for doubt about everything except the sanity of his meditator. In other words, on Foucault’s reading, this moment is included in the text so that the meditator can offer readers a model of rational subjectivity that excludes the possibility of the experience of madness; the thinking subject—the Cartesian cogito—thus

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institutes itself as a specifically rational subject here by refusing to take the example of the mad for itself, thereby reproducing the day’s dominant cultural logic—the internment of the mad—as metaphysics. Foucault draws textual support for this reading of the passage by noting that the meditator seems to differentiate the case of madness from other instances in which sense-experience undergoes distortion, claiming that the experience of madness is in an important sense different in kind from these cases for Descartes. Specifically, in cases of perceptual error in which I am looking at something from a distance or something very small, or even when I am dreaming, the meditator reasons that an inability to clearly and distinctly perceive is a function of contingent and external circumstances; by contrast, the case of madness belongs to a different class of sense-distortion altogether insofar as it represents a corruption of the thinking subject as such. While the meditator is thus willing to identify with the possibility of having the former sorts of experiences, it is a sine qua non of the meditator’s status as rational to disidentify with the possibility of being mad. As Foucault puts it, “[I]t is an impossibility of being mad which is inherent in the thinking subject rather than the object of his thoughts” (2006, 45). Unlike the mad, in other words, who would question even something so certain as the fact that “I am here, sitting by the fire, wearing a winter dressing-gown, holding this piece of paper in my hands, and so on,” the meditator resolves to maintain an essential confidence about truths like these and thus the fact of not being mad. In this vein, Foucault proposes to read the Meditations as a kind of conversion narrative and this moment in the text as a temptation—the temptation of reason by madness—that has been overcome. Having been temporarily seduced by the possibility of being mad, the meditator, in Foucault’s retelling of this moment, undertakes a sovereign decision to expel this possibility: The perils of madness have been quashed by the exercise of Reason, and this new sovereign rules a domain where the only possible enemies are errors or illusions. The process of Descartes’ doubt breaks the spells woven by the senses and steers a clear course through the landscape of dreams, constantly guided by the light of true things. But madness is banished in the name of the man who doubts, and who is no more capable of opening himself to unreason than he is to not thinking or not being. (Foucault 2006, 46)

For Foucault, this appeal to the political vocabulary of sovereignty and punishment is significant; for in his view, in this moment, the Meditations

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participates in and defines a general cultural project that produced not only philosophical treatises but also a whole “ensemble of institutions” (2006, 47) that sought to confine the mad. Indeed, Foucault seems to place this brief, three-page reading of the Meditations at the beginning of “The Great Confinement” as a kind of preface—as if to suggest that the Meditations can be read as the philosophical distillation of the cultural logic of the age to which it belongs. Foucault then proceeds in the rest of the chapter to document a bevy of scientific, juridical, and economic discourses and institutions across Europe that enacted this logic of internment as it was expressed by Descartes the preeminent modern philosopher. Now, in “Cogito and the History of Madness,” Derrida homes in on these pages of Foucault’s History, as well as the “Preface” that was included in the original publication of the book, making what at first blush might seem to be a somewhat absurd claim: Foucault’s reading of the Cartesian Meditations, although constituting only a minuscule fraction of the more than 650 pages of the History, deserves the attention of a dedicated essay because “the sense of Foucault’s entire project can be pinpointed in these few allusive and somewhat enigmatic pages” (Derrida 1978b, 32). In other words, if for Foucault the first meditation is a symptomatic moment for Descartes, then for Derrida, Foucault’s reading of this passage is symptomatic as well. Before turning to Derrida’s analysis of these pages of the History, as well as the alternative reading of the cogito that Derrida proposes, it will thus be helpful to first clarify what Derrida means when he argues that Foucault’s project can be “pinpointed” by his reading of Descartes. For it is important to note that in making this claim Derrida does not aim to suggest that by questioning Foucault’s reading of Descartes that he can invalidate or falsify the empirical observations and conclusions documented in the rest of Foucault’s book—a charge that Foucault, in his replies to Derrida, as well as latter day Foucaultians, has imputed to Derrida.15 Rather, Derrida makes clear at the outset of his essay that his ambition is not to challenge Foucault’s empirical claims, but instead to “interrogate certain philosophical and methodological 15  In contrast with Koopman’s characterization of this debate Khurana (2016) rightly observes in this vein that “Derrida and Foucault cannot be opposed in the way their debate suggests: as the conflict of a traditional philosophical program […] and a positivist, historicist program. […] Instead, we are confronted with the conflict of two closely related transformations of the transcendental approach that strive to account for and enable a critical history of reason and unreason” (97).

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presuppositions of this history of madness” (Derrida 1978b, 33) that he believes are exemplified by the manner in which Foucault reads Descartes. As we will see, these presuppositions are interrogated by Derrida ultimately for the sake of raising a more fundamental question about the conditions for the possibility of developing a critical discourse on institutions as historical entities. What are these philosophical and methodological presuppositions? Importantly, for Derrida, these presuppositions, manifest in the above reading of Descartes, are made explicit in some of Foucault’s remarks in the 1961 “Preface” of his book. Before turning directly to Derrida’s remarks on Foucault’s reading of Descartes it will thus be helpful to have his characterization of the “Preface” in mind. To begin with, it is useful to recall that Foucault’s major methodological claim in the “Preface” is that a history of madness cannot just be a history of what those positive sciences that have studied madness have had to say about it. Rather than taking the knowledge of these positive sciences as a given, Foucault argues that it is necessary to return to what he calls “the zero degree of the history of madness” (Foucault 2006, xxvii): the moment, prior to the birth of psychiatry and the other sciences that have studied and codified the mad, when madness was still “undifferentiated experience”—the moment when a binary opposition between Reason and Madness, erected by a psychiatric Reason opposing itself to madness as subject to object, was not taken as obvious or given. Why, from this methodological standpoint, is knowledge about madness gleaned from the positive sciences not sufficient to tell a history of madness? As Foucault notes, these sciences that have studied “madness,” that have coined concepts and accumulated knowledge about madness, all presuppose as a condition of their own possibility the positing of a “caesura that establishes the distance between reason and non-reason” (xxviii); in other words, such sciences are able to accumulate knowledge about their object—madness—only by virtue of taking for granted this opposition through which this object has been constituted. Because these sciences presuppose this division as a condition of the knowledge that they produce, they cannot, at least qua positive sciences, account for that division without falling into a kind of circularity. This limitation of positivistic empiricism points to the need for a new mode of historical inquiry in Foucault’s estimation: “The language of psychiatry, which is a monologue by reason about madness, could only have come into existence in such a silence. My intention was not to write the history of that language, but rather draw up the archaeology of that

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silence.” That is, in contrast with a classical history of science that would have madness as its object, what Foucault calls “archaeology” would be a history that accounts for those moments of constitutive negativity or exclusion through which a culture produced those objects that the classical historian of science could then come to recount. In this sense, archeology does not take something like history for granted, but asks about the possibility of that history: To interrogate a culture about its limits-experiences [such as madness] is to question it at the confines of history about a tear that is something like the very birth of its history. There, in a tension that is constantly on the verge of resolution, we find the temporal continuity of a dialectical analysis confronted with the revelation, at the doors of time, of a tragic structure. (Foucault 2006, xxix)

It is in these quasi-Hegelian terms that Foucault defines madness as “nothing other than the absence of an oeuvre” (xxxi). Namely, if history is a work, or the perpetual institutionalization of a certain form of reason and its culture, then this “work” has always erected itself in opposition to and as the exclusion of some negative remainder. From such a point of view, madness can be understood as a figure for whatever “has no rightful place in history” (2006, xxxii), but that nevertheless makes a certain history possible through its very exclusion. How, then, in Derrida’s view, are these philosophical and methodological questions about the possibility of telling a history of madness related to the reading of Descartes found in “The Great Confinement”? From a Foucaultian point of view, it would appear that the Meditations are the philosophical enactment of this dialectic, whereby reason constitutes itself as the historical culture of Reason by banishing the possibility of madness: the meditator, appearing on the verge of identifying reason with unreason, sense with nonsense, steps back from the edge to assure themselves about their own rationality, joining what Foucault refers to as the “historical ensemble—notions, institutions, judicial and police measures, scientific concepts—which hold captive a madness whose wild state can never be constituted” (2006, xxxiii). Philosophy as a discursive tradition would thus find itself swept up in the movement of history told in Foucault’s History at this moment in the Meditations. Indeed, if one is to take Foucault’s claim seriously, the entire project of modern philosophy, insofar as it claims some legacy of Descartes, whether in affirmation or

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critique, would stand accused as participating in a history that has the internment of the mad as its project. Now, according to Derrida, when Foucault makes this interpretive claim about Descartes’s text, Foucault can be read as implicitly positing a more general claim about the relationship between signs and historical structures: Foucault believes that it is possible to interpret signs—in this case, the Cartesian Meditations—by assigning these signs to a position within an historical structure. Derrida begins his essay by asking two questions about this, what he takes to be a structuralist hermeneutical operation, first about sign and then about structure: (i) has Foucault preliminarily at least accounted for the manifest content of this sign—in this case, Descartes’s text—accurately and in accordance with its stated intention, even if he will go on to critique it? and (ii) does this sign actually maintain the relationship to the historical structure—in this case, the Great Confinement—that Foucault has assigned to it? Importantly, for Derrida, the reason that Foucault’s interpretation of Descartes’s text merits so much attention is that, if one returns to the letter of the Meditations, what one discovers is that Foucault has offered a reading of it that is utterly at cross-purposes with the manifest intentions of Descartes. Namely, Derrida points out that, as anyone who has read the Meditations is aware, many of the beliefs and positions asserted by the meditator in the first meditation, once subjected to philosophical scrutiny, are subsequently revealed to be rooted in non-philosophical presuppositions that can no longer be given credence. And in fact the passage that Foucault cites from the Meditations as the basis for his damning interpretation of the Cartesian project is precisely one of those cases where Descartes dramatizes his meditator as rehearsing a commonsense view that will eventually be rejected. As Derrida puts it, the moment that Foucault cites in the first meditation, in which the meditator seems to disidentify with the possibility of being mad, does not represent Descartes’s “final, definitive conclusions, but rather the astonishment and objections of the nonphilosopher” (Derrida 1978b, 50). Namely, when the meditator resists calling into question all beliefs that are derived from the senses—objecting that, although some could plausibly be doubted from a pragmatic point of view, “there are many other beliefs about which doubt is quite impossible,” and thus that doubting them would be a sign of madness—the meditator is enacting a plausible commonsense objection to the project of radical doubt for pedagogical purposes. In other words, Descartes, anticipating the commonsense attitude toward the decidedly unnatural attitude that his text invites its

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readers to assume—the invitation that this text gives to its readers to hold in abeyance any belief that could in principle be called into question— might sound mad. However, as Derrida points out, the meditator will go on to accept precisely this invitation to adopt an attitude that to commonsense would seem madness: the meditator not only goes on to doubt the immediate truths of sense certainty (the view that the meditator seems to call “mad” and “insane” in the first meditation), but even extends skepticism to the ideal truths of mathematics contemplated by the thinking ego in its purest form. Namely, in the second meditation, noting that there is no assurance, at least in principle, for the veracity of any of these beliefs, the meditator is braced in the skeptical attitude referred to as “madness” in the first meditation by adopting the famous hypothesis of an evil deceiver. As such, far from disidentifying with the possibility of being mad, Descartes’s meditator goes on to assume precisely the attitude that is called madness from the standpoint of commonsense rehearsed in the first meditation. In this sense, as Derrida notes, and contra Foucault, the hypothesis of the evil deceiver can in fact be thought of as a moment in which the meditator encounters “the possibility of a total madness, a total derangement over which I could have no control because it is inflicted upon me— hypothetically—leaving me no responsibility for it” (1978b, 52). Because it does not merely involve a distrust of the body or the senses, but goes so far as to not be assured of the non-sensible truths of mathematics, this attitude represents a “subversion to pure thought and to its purely intelligible objects.” As such, Foucault’s reading of the Meditations, and the project of modern philosophy that it announces, can only be limited in its pertinence: the inferences that Foucault draws from the meditator’s reflections in the first meditation are inferences drawn from a description of madness that is taken from what Derrida, adopting a phenomenological tone with Foucault, calls the “naive, natural and premetaphysical stage of Descartes’s itinerary” (1978b, 52), but these Foucaultian inferences “become vulnerable in turn, as soon as we come to the properly philosophical, metaphysical, and critical phase of doubt.” That is, rather than institutionalizing Reason in opposition to Madness, it is when the meditator becomes philosophical, refusing to take any comfort in any received knowledge about the difference between reason and unreason, sense and nonsense, that the meditator discovers that “nothing is opposed to the subversion named insanity” (1978b, 53). Importantly, as I already intimated, Derrida’s aim here is not merely to correct Foucault for an apparently elementary misreading of the

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Meditations, but instead to observe that this moment of hyperbolic doubt in Descartes’s text actually anticipates some of Foucault’s underlying philosophical and methodological interests in the History. For the project of hyperbolic doubt and skepticism in the face of all certainty—the properly philosophical moment of Descartes’s text—actually achieves the gesture that Foucault himself has announced as attempting in the “Preface”: it has suspended any assurance about knowing the difference between reason and unreason and any narrative that erects itself dogmatically upon such an opposition. That is, rather than simply constructing a vision of rationality that is binarily opposed to un-rationality (Foucault’s accusation against Descartes), the Cartesian project, at least at this moment, is quite radical insofar as it itself precisely attains that “zero point” that Foucault seeks to return to when he asks about the origin of this division. Derrida is worth citing at length here because it is at this moment that he explicitly brings the phenomenological problematic of history, historicity, and historicism, which we discussed in the previous section, to bear upon Foucault: The hyperbolical audacity of the Cartesian Cogito, its mad audacity, which we perhaps no longer perceive as such because, unlike Descartes’s contemporaries, we are too well assured of ourselves and too well accustomed to the framework of the Cogito, rather than to the critical experience of it—its mad audacity would consist in the return to an original point which no longer belongs to either a determined reason or a determined unreason, no longer belongs to them as opposition or alternative. Whether I am mad or not, Cogito, sum. Madness is therefore, in every sense of the word, only one case of thought (within thought). It is therefore a question of drawing back toward a point at which all determined contradictions, in the form of given, factual historical structures, can appear, and appear as relative to this zero point at which determined meaning and nonmeaning come together in their common origin. (Derrida 1978b, 56)

Here Derrida speaks in terms that echo his account of that other thinking of historicity in Heidegger: The Question of Being and History. In so doing, the aim of Derrida’s reading is to underscore what he refers to as the “critical experience” of the cogito: the moment of the cogito that points to the possibility of suspending and breaking with received interpretations of the meaning of reason and unreason. If one asks about the origin of this difference, what one finds is that for the Cartesian project thought is not constituted by the exclusion of madness, but rather that madness and reason are cases of thought about whose difference one will always be able to

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pose a question at least in principle. And what this critical experience of the cogito ultimately allows is a perspective from which one can assess “given, factual historical structures” that have determined the difference between reason and unreason, meaning and non-meaning. In this respect, according to one of its tendencies, Foucault’s project is not so much opposed to that of Descartes as it is an unwitting inheritor of it. But the dominant tendency of Foucault’s text is to read Descartes in just the opposite fashion and ultimately leads to what Derrida calls “an internment of the Cogito similar to the violences of the classical age” (1978b, 57). Namely, Foucault, by attempting to reduce the sign of Descartes’s text to the historical ensemble in which he alleges that it belongs, ends up effacing the criticality of the cogito—and thereby the criticality of the philosophical attitude—that is ultimately the wellspring of his own discourse: Such an effort risks doing violence to this project in turn […] and a violence of totalitarian and historicist style which eludes meaning and the origin of meaning. I use ‘totalitarian’ in the structuralist sense of the word, but I am not sure that the two meanings do not beckon each other historically. Structuralist totalitarianism here would be responsible for an internment of the Cogito similar to the violences of the classical age. I am not saying that Foucault’s book is totalitarian, for at least at its outset it poses the question of the origin of historicity in general, thereby freeing itself of historicism; I am saying, however, that by virtue of the construction of his project he sometimes runs the risk of being totalitarian. (1978b, 57)

Importantly, when Derrida frames “structuralist totalitarianism” as a temptation for Foucault, he also notes that Foucault’s book frees itself from such totalitarianism insofar as it poses the question, as we saw in the “Preface,” about the origin of the history that it narrates: historicity. Derrida homes in on this passage in Foucault’s book, then, because he believes that Descartes’s positing of the question about the origin of meaning (and non-meaning) is a moment that cannot be neatly enclosed within the narrative of Foucault’s History of Madness—and in fact precedes and exceeds it. That is, if Descartes poses the critical question about the possibility of positing a difference between reason and unreason, then Descartes—and modern philosophy—cannot be said to conform to the historical structure or totality that Foucault describes. As Derrida puts it: “I think, therefore that (in Descartes) everything can be reduced to a determined historical totality except the hyperbolical project. Now, this

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project belongs to the narration narrating itself and not to the narration narrated by Foucault. It cannot be recounted, cannot be objectified as an event in a determined history” (1978b, 57–58). Derrida’s claim here is ultimately a transcendental one: insofar as the “hyperbolical project”—the project of radical doubt—suspends any confidence in knowing the difference between reason and unreason, that project cannot be contained within the narrative that Foucault narrates in his book, because that narration tells the story of everything that takes place on the other side of or on the basis of an assumption of the difference between those two terms; at the skeptical moment in Descartes’s text, in other words, there is an excess of what Derrida calls “the infinite and undetermined totality” (1978b, 56) that cannot be thematized within this narrative. The risk that Foucault’s project takes, as evidenced by its reading of Descartes, then, is that of “erasing the excess by which every philosophy (of meaning) is related, in some region of its discourse, to the nonfoundation of meaning.” On Derrida’s reading, “philosophy” would be the name for a fidelity to this excess of non-foundation relative to every finite and historical institutionalization of meaning. This is an excess that, as we will see in the following chapters, Derrida will subsequently come to invest with normative significance in his later writings on social and political institutions. If Derrida is critical of Foucault for reducing this excess, at least in one tendency of his writing represented in his reading of the Meditations, however, it should be noted that “Cogito and the History of Madness,” as I said previously, does not represent a mere critique or dismissal of Foucault’s project. For as Derrida goes on to note, Descartes himself erases this excess in the Meditations when he resolves radical doubt by shoring up the meditator’s knowledge of the difference between reason and unreason, sense and nonsense, when in the third meditation he dramatizes the meditator appealing to the dogmatic and deductive arguments of the Natural Light. Descartes’s philosophy, as a philosophy of meaning, thus ultimately reassures itself against the possibility of madness or unreason—although not in the place that Foucault locates this disavowal: Within Descartes’s text, at least, the internment takes place at this point. It is here that hyperbolical and mad wanderings once more become itinerary and method, ‘assured’ and ‘resolute’ progression throughout the existing world, which is given to us by God as terra firma. For, finally, it is God alone who, by permitting me to extirpate myself from a cogito that at its proper moment can always remain a silent madness, also insures my representations and cognitive determinations, that is, my discourse against madness. It is

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without doubt that, for Descartes, God alone protects me against the madness to which the Cogito, left to its own authority, could only open itself up in the most hospitable way. And Foucault’s reading seems to be powerful and illuminating not at the stage of the text which he cites, which is anterior and secondary to the Cogito, but from the moment which immediately succeeds the instantaneous experience of the Cogito at its most intense, when reason and madness have not yet been separated, when to take the part of the Cogito is neither to take the part of reason as reasonable order, nor the part of disorder and madness, but is rather to grasp, once more, the source which permits reason and madness to be determined and stated. Foucault’s interpretation seems to me illuminating from the moment when the Cogito must reflect and proffer itself in an organized philosophical discourse. That is, almost always. (1978b, 58)

Here it is important to note, however, that for Derrida this suspension of the experience of excess and hyperbole is not simply a mistake that either Descartes or Foucault makes, but answers to a kind of necessity—the kind of which we observed in Heidegger: The Question of Being and History: Beneath this natural comfort [of the meditator’s objection to the project of radical doubt], beneath this apparently prephilosophical confidence is hidden the recognition of an essential and principled truth: to wit, if discourse and philosophical communication (that is, language itself) are to have an intelligible meaning, that is to say, if they are to conform to their essence and vocation as discourse, they must simultaneously in fact and in principle escape madness. And this is not a specifically Cartesian weakness (although Descartes never confronts the question in his own language), is not a defect or mystification linked to a determined historical structure, but rather is an essential and universal necessity from which no discourse can escape, for it belongs to the meaning of meaning. Footnote 21: That is to say, as soon as, more or less implicitly, Being is called upon (even before its determination as essence and existence)—which can only mean, to be called upon by Being. Being would not be what it is if speech simply preceded or invoked it. Language’s final protective barrier against madness is the meaning of Being. (1978b, 53–54)

According to Derrida, in other words, the pre-philosophical attitude of the meditator, of which Foucault was critical, although it cannot justify itself in positing its commonsense distinction between reason and madness, is pre-philosophical in the sense that its natural attitude ultimately rests on a philosophical or principled justification that can be unearthed.

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Namely, Derrida contends, in a fashion that recalls the Heidegger seminar described in the previous section, that language and discourse could not function as language and discourse unless the practice of language in principle excluded something like unreason or nonsense—that linguistic practice necessarily presupposes an intention to mean something or make sense. Moreover, Derrida makes the further claim that this aspect of linguistic practice is not merely an empirical feature of language as it has been in the past or as it will likely be in the future, but an “essential and universal necessity.”16 Significantly, it is at this moment that Derrida says that “paradoxically, what I am saying here is strictly Foucauldian” (1978b, 54). In what respect? According to Derrida, in his methodological remarks in the “Preface” to History of Madness, Foucault is himself acutely aware of this necessity. When Foucault writes that “Madness is the absence of a work,” Derrida takes him to mean that madness is defined as non-­meaning, non-sense, silence, whereas a work would be defined as an institutionally accredited discourse. As such, as soon as there is discourse—even “the most elementary discourse […] the first articulation of a meaning […] the first syntactical usage of an as such”—the experience of madness, understood as the absence of a work, must be excluded. If Derrida is correct that linguistic practice a priori excludes something like a direct acquaintance with the experience of madness qua the experience of nonsense, then a remarkable conclusion follows about the historical claims of Foucault. The internment of the mad, rather than being a feature of a specific historical epoch, would be a generalizable feature of linguistic practice—or at least linguistic practice that has made claims about being—in the totality of its history. Derrida begins to evoke the consequences of this intervention upon Foucault’s text when he writes the following: In its most impoverished syntax, logos is reason and, indeed, a historical reason. And if madness in general, beyond any factitious and determined historical structure, is the absence of the work, then madness is indeed, essentially and generally, silence, stifled speech, within a caesura and a wound that open up life as historicity in general. Not a determined silence, imposed at one given moment rather than another, but a silence essentially linked to an act of force and a prohibition which open history and speech. In general. 16  Here Derrida, although he is ultimately critical of Husserl’s account of the sign, in fact closely echoes Husserl, who, in the Logical Investigations, asserts that the formal structure of an expression requires some intentional object even if no such object actually exists or could not possibly exist empirically.

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Within the dimension of historicity in general, which is to be confused neither with some ahistorical eternity, nor with an empirically determined moment within the history of facts, silence plays the irreducible role of that which bears and haunts language, outside and against which alone language can emerge […].

It is worth dwelling on this passage because in many respects these lines anticipate Derrida’s reflections on historicity in later texts like Specters and also echo the account of historicity that we saw Derrida developing in his reading of Heidegger. Derrida’s claim here is that Foucault, in defining madness as “the absence of work,” has in effect defined madness as “silence” or the absence of sense. If madness is silence, then what Foucault is calling “madness” is not a social construct characteristic of a particular epoch that has been excluded, but is excluded a priori as a condition for the possibility of meaning as such. This is what Derrida refers to as “historicity in general”: a finite institutionalization of sense that requires the exclusion of some non-sense. What is ultimately at stake for Derrida is how one thinks this exclusion—or better yet, the extent to which one is willing to linger with the fact that no authority really grounds it. To this end, Derrida ultimately seems most concerned to preserve for philosophy that moment in the Mediations prior to the invocation of God and the Natural Light, and thus prior to the history that follows from determining the difference between sense and non-sense. Indeed, the question that Derrida would ultimately like to pose in preserving this hyperbolical moment within the Cartesian project is whether that project does not “lend itself to repetition” (1978b, 60). In other words, what is ultimately at stake for Derrida in intervening upon Foucault’s misreading of the Cartesian project is an attempt to rescue the moment in the cogito where skepticism gives rise to a reflection on historicity: By separating, within the Cogito, on the one hand, hyperbole [i.e., hyperbolical doubt] (which I maintain cannot be enclosed in a factual and determined historical structure, for it is the project of exceeding every finite and determined totality), and, on the other hand, that in Descartes’s philosophy (or in the philosophy supporting the Augustinian Cogito or the Husserlian cogito as well) which belongs to a factual historical structure, I am not proposing the separation of the wheat from the tares in every philosophy in the name of some philosophia perennis. Indeed, it is exactly the contrary that I am proposing. In question is a way of accounting for the very historicity of philosophy. I believe that historicity in general would be impossible without

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a history of philosophy, and I believe that the latter would be impossible if we possessed only hyperbole, on the one hand, or, on the other, only determined historical structures, finite Weltanschauungen. The historicity proper to philosophy is located and constituted in the transition, the dialogue between hyperbole and finite structure, between that which exceeds the totality and the closed totality, in the difference between history and historicity; that is, in the place where, or rather at the moment when, the Cogito and all that it symbolizes here (madness, derangement, hyperbole, etc.) pronounce and reassure themselves to fall, necessarily forgetting themselves until their reactivation, their reawakening in another statement of the excess which also later will become another decline and another crisis (1978b, 60).

This passage, which recalls the Husserlian vocabulary that we saw preoccupied Derrida in his commentary on “The Origin of Geometry,” is crucial for understanding Derrida’s intervention upon Foucault because in it he clarifies the status of history for his own conception of philosophy. Specifically, Derrida is at pains to distinguish his position from two, one-­ sided renderings of the question of history: (1) the position that says history is reducible to a series of “determined historical structures, finite Weltanschauungen” [world views]; and (2) the position that holds that there could be some universal and ahistorical philosophical reason. Instead, Derrida identifies the experience of philosophy, as it is articulated in the Cartesian cogito, with an experience of hyperbole, a disentangling from the vocabulary afforded by determined historical structures, in order to ask about the origin of their determination, not from some Archimedean point, but within the outlines of a determinate situation. From this point of view, the trouble with the historicist tendency in Foucault is that it reduces the critical experience of hyperbole—the excessive relationship of thought to the determined historical structures in which it finds itself—by treating the history of madness as a series of worldviews manifest in discursive practices. In fact, Foucaultian archeology, as a project of institutional critique, calls for the privilege of something like an experience of philosophy as an experience of hyperbole, even if, according to another tendency of his text, Foucault would seem to disavow such a privilege. In what then does the privilege of philosophy consist for Derrida contra Foucault? Here it is helpful to close this chapter and look ahead to Derrida’s own writings on institutions by turning again  to an essay in which Derrida had occasion to reflect on the privilege of philosophy in terms that recall this early debate with Foucault: “Privilege: Justificatory

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Title and Remarks.” In that essay that I discussed in the previous chapter, in language that recalls the above description of the cogito and hyperbole, Derrida stipulates that philosophy is privileged only to the extent that as a discursive practice it “clings to the privilege it exposes. Philosophy would be what wants to keep, by declaring it, this ultimate or initial privilege that consists in exposing its own privilege: to danger or presentation, sometimes to the risk of presentation” (2002a, 1–2). While Derrida is at pains to take a stand for the specificity of philosophy, he is also at pains to note that this specificity “must remain of the most paradoxical kind. Its experience is also that of an aporia across which an uncertain path must continually be reinvented” (2002a, 9). In other words, if Derrida is interested in the specificity of philosophy he does not fetishize its integrity, instead seeing in the practice of philosophy a historical practice open to future transformation: “Philosophy, philosophical identity, is also the name of an experience that, in identification in general, begins by ex-posing itself: in other words, expatriating itself. Taking place where it does not take place, where the place is neither natural, nor originary, nor given.” What Derrida is thus ultimately interested in is the deconstructibility of the philosophical tradition and its institutions, which implies a commitment to both its maintenance and transformation. Recalling the opening pages of “Violence and Metaphysics,” another essay from the same era as “Cogito and the History of Madness,” Derrida suggests that the only thing that makes a philosophical community cohere—the minimal determination of philosophical institutionality—would be a pursuit of the question: What is philosophy? “Community here would be constituted as and from the question of philosophy, by the “What is philosophy?” And as Derrida notes, such a question “can be formed, resonate, or give rise to the discourse it appeals to, it can appeal in general, only by instituting or presupposing the community of a certain interlocution” (2002a, 12). There is a “criteriology and titology” (2002a, 15) at work in philosophy as an institution, in other words, because what distinguishes philosophy as a discursive tradition is that, unlike other regions of knowledge, philosophy “has no horizon, if the horizon is, as its name indicates, a limit, if ‘horizon’ means a line that encircles or delimits a perspective” (2002a, 16). Unlike any other science or knowledge domain which can “indeed think their object in an epistemology, transform it by transforming the founding contract of their own institution,” what characterizes the experience that corresponds to the philosophical is the kind of groundlessness that we have seen Derrida describe in these essays from the 1960s. However, if this deconstructibility of the

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contract that guarantees a philosophical institution denotes its precariousness, for Derrida this is also the chance of its transformation in the name of a higher responsibility: “This will always be done in the name of a more demanding responsibility, one more faithful to memory and the promise, one always beyond the present. In the name of this responsibility, yet more will be demanded of the ‘right to philosophy,’ yet more right to philosophy will be demanded” (2002a, 18). In this respect, the difference between philosophy and non-philosophy as it is institutionalized comes less to resemble a dividing line of which one could be certain but instead takes shape as “the experience of a paradoxical responsibility that others are invited to share, to give themselves the means of sharing” (2002a, 19). Rather than conceiving of the self-foundation of a philosophical institution as an absolutely transparent institutionalization that would be immune from exogenous forces or other institutions, Derrida instead proposes to consider its institutionalization along the lines of a promise: “even if the promise is never kept in a presently certain, assured, demonstrable fashion. In this respect, the self, the autos of legitimating and legitimated self-­ foundation, is still to come, not as a future reality but as that which will always retain the essential structure of a promise and as that which can only arrive as such, as to come.” This all ultimately raises a question though: if one were to internalize Derrida’s methodological critique of Foucault, how would this affect one’s attitudes and relationship toward the institutions and practices that have been promulgated through the foreclosure of hyperbole? What would it mean to take the side of those deemed outside history and totality in the name of what Derrida calls the infinite and the excess? These are questions raised by the early Derrida’s engagement with Foucault that ultimately remain as questions in “Cogito and the History of Madness,” but what this essay does indicate is that for Derrida, philosophy, as a reflection on the groundless ground of historicity—a reflection on the excess through which every institutionalization of sense erects itself against nonsense—will have a role to play here. What we can say in sum, in closing this chapter, is that Derrida’s aim in these early works is to vindicate both a historicized view of philosophy and a historicized view of philosophical critique—two tasks that he takes to be reciprocally related. As we are about to see, if Derrida hasn’t yet articulated this approach fully by the time of “Cogito and the History of Madness,” he will ultimately try to chart a path between phenomenological teleology and Foucaultian historicism by developing an account of the

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origin or historicity of institutions during the 1970s. For if historicity is the theme of deconstruction in Derrida’s oeuvre during the period traced in this chapter (1962–1967), it is not until the 1970s that Derrida begins to recognize that this theme calls specifically for him to develop a reflection on the historicity of social and political institutions, as those entities that constitute the difference between reason and unreason, sense and nonsense, in the world. In order to consider how Derrida develops this theory of institutions—in what amounts to the articulation of what I want to suggest is a novel “social ontology”—we will need to consider how Derrida reactivates these phenomenological reflections from the 1960s on historicity as he turns to another vocabulary in the 1970s: speech act theory.

References Derrida, Jacques. 1978a. ‘Genesis and Structure’ and Phenomenology. In Writing and Difference, 154–168. Trans. Alan Bass. Chicago: University of Chicago Press. ———. 1978b. Cogito and the History of Madness. In Writing and Difference, 31–63. Trans. Alan Bass. Chicago: University of Chicago Press. ———. 1981. Implications: Interview with Henri Ronse. In Positions. Trans. Alan Bass. Chicago: University of Chicago Press. ———. 1989. Edmund Husserl’s Origin of Geometry: An Introduction. Trans. John P. Leavey, Jr. Lincoln: University of Nebraska Press. ———. 1994. Specters of Marx: The State of the Debt, The Work of Mourning and The New International. Trans. Peggy Kamuf. New York: Routledge. ———. 2002a. Privilege: Justificatory Title and Introductory Remarks. In Who’s Afraid of Philosophy? Right to Philosophy 1, 1–66. Trans. Jan Plug. Stanford: Stanford University Press. ———. 2002b. Negotiations. In Negotiations: Interventions and Interviews 1971-2001, 11–40. Stanford: Stanford University Press. ———. 2008. Letter to a Japanese Friend. In Psyche: Inventions of the Other: Volume II, ed. Peggy Kamuf and Elizabeth Rottenberg, 1–6. Stanford: Stanford University Press. ———. 2016. Heidegger: The Question of Being & History. Trans. Geoffrey Bennington. Chicago: The University of Chicago Press. Descartes, Rene. 1984. Meditations on First Philosophy. In The Philosophical Writings of Descartes: Volume II. Trans. John Cottingham, Robert Stoothoff, and Dugald Murdoch. New York: Cambridge University Press. Foucault, Michel. 2006. History of Madness. Trans. Jonathan Murphy and Jean Khalfa. New York: Routledge.

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Gustafson, Ryan A. 2017. Heidegger: The Question of Being and History (Review). Graduate Faculty Philosophy Journal 38(2): 499–501. Haddad, Samir. 2016. A Petty Pedagogy? Teaching Philosophy in Derrida’s ‘Cogito and the History of Madness’. In Foucault/Derrida Fifty Years Later: The Futures of Genealogy, Deconstruction, and Politics, ed. Olivia Custer, Penelope Deutscher, and Samir Haddad. New York: Columbia University Press. Husserl, Edmund. 1965. Philosophy as a Rigorous Science. In Phenomenology and the Crisis of Philosophy, 71–148. Trans. Quentin Lauer. New York: Harper and Rowe Publishers. ———. 1970. The Crisis of European Sciences and Transcendental Phenomenology: An Introduction to Phenomenological Philosophy. Trans. David Carr. Evanston: Northwestern University Press. ———. 1982. Ideas Pertaining to a Pure Phenomenology and to a Phenomenological Philosophy: First Book. Trans. F.  Kersten. The Hague: Martinus Nijhoff Publishers. ———. 1989. The Origin of Geometry. In Edmund Husserl’s Origin of Geometry: An Introduction, 155–181, Trans. David Carr. Lincoln: University of Nebraska Press. Khurana, Thomas. 2016. ‘The Common Root of Meaning and Nonmeaning’: Derrida, Foucault, and the Transformation of the Transcendental Question. In Foucault/Derrida Fifty Years Later: The Futures of Genealogy, Deconstruction, and Politics, ed. Olivia Custer, Penelope Deutscher, and Samir Haddad. New York: Columbia University Press. Koopman, Colin. 2016. Must Philosophy Be Obligatory?: History versus Metaphysics in Foucault and Derrida. In Foucault/Derrida Fifty Years Later: The Futures of Genealogy, Deconstruction, and Politics, ed. Olivia Custer, Penelope Deutscher, and Samir Haddad. New York: Columbia University Press. Lawlor, Leonard. 2002. Derrida and Husserl: The Basic Problem of Phenomenology. Bloomington: Indiana University Press.

CHAPTER 3

Of Declarations, Signatures, and Titles: Derrida on the Historicity of Institutions (1971–1986)

3.1   Institutional Presuppositions: On Derrida’s “Social Ontology” In the last chapter, we saw how Derrida’s early reflections on history were in part an attempt to understand the specificity of philosophy as a discursive tradition that relates in a paradoxical way to its own historical character; as we saw, Derrida’s writings from the 1960s tended in the direction of a reflection on what he called “the historicity of philosophy”—in contrast to both relativizing historicisms and foundationalist ahistoricisms— and this leads him to the conclusion that it belongs to philosophers to reflect on philosophy’s institutionalization as a historical tradition. This ultimately implies—as we saw it would for Derrida, in looking ahead to his essay  “Privilege: Justificatory Title and Introductory Remarks”—that a certain responsibility belongs immanently to philosophy to not only reflect on its own empirical sites of institutionalization, but on the question of institutionality as such—and thus to raise a properly philosophical question about institutions: what is an institution? In the conclusion of the last chapter, in passing, I called this type of reflection on institutionality a “social ontology.”

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 R. A. Gustafson, Derrida’s Social Ontology, https://doi.org/10.1007/978-3-031-41494-7_3

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In the present chapter, my aim will be to reconstruct what I want to suggest are the three most important concepts for understanding Derrida’s eventual answer to the question of what an institution is: the declaration, the signature, and the title. More specifically, turning now to Derrida’s writings from the 1970s through the mid-1980s, in this chapter I trace how Derrida comes to explicitly theorize what an institution is by understanding institutions as irreducibly historical entities—in a fashion that recalls his earlier phenomenological reflections on history, historicity, and historicism from the 1960s—by giving an account of their performative genesis. Integral to my analysis of Derrida’s first explicit writings on institutions from the 1970s is the claim that, although Derrida may no longer be commenting on the texts of classical phenomenologists, the analysis of them that we traced in the previous chapter remains operative; indeed, I want to suggest that the only way to make sense of Derrida’s account of what an institution is during this period is to understand him to be providing a quasi-phenomenological analysis of institutionality that is buttressed by the vocabulary of speech act theory. However, before turning to my interpretation of these texts directly, it should be said by way of disclaimer that speaking about Derrida’s “social ontology” requires a note of explanation. For this phrase is one that he never applied to himself and in fact that I am borrowing from one of Derrida’s philosophical adversaries: John Searle. While I would argue that Derrida’s debate with Searle, captured in Limited Inc., is defined by misunderstanding, misreading, and some measure of bad faith on both sides, nevertheless, it seems to me that both Derrida and Searle, in their writings that follow this debate, in fact embarked upon a similar trajectory in the 1970s and 1980s and onward, in that both attempted to give an account of the origin of social and political institutions while drawing from a theoretical legacy about whose stakes they disagreed so vehemently over the course of that debate: J.L. Austin’s speech act theory. As we are about to see, if phenomenology remains deconstruction’s starting point for Derrida during this period of his oeuvre, speech act theory and its problematic of the performative provide Derrida with an indispensable touchstone for bringing those phenomenological reflections on historicity to bear upon the question of how speech acts are constitutive of the social and political world—a

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touchstone that he shares with Searle, their disagreements about the particulars of speech act theory notwithstanding.1 Returning to this debate, what I would like to suggest in what follows is that Derrida can, in a qualified sense, be understood as having articulated a “social ontology” to the extent that his works during this period were preoccupied with a battery of concepts, which we are about to consider—the declaration, the signature, the title—that can help one understand, at the level of philosophical analysis (as opposed to a strictly sociological, historical, or any other kind of empirical analysis), the character of social and political institutions. Nevertheless, if Derrida’s “social ontology” can only be understood as such in a qualified sense, this is because, as we saw, his own philosophical discourse—deconstruction— emerges as the cultivation of a form of historical reflection that begins with the insight that  the historical has always been disavowed by philosophy qua ontology. Derrida’s criticisms of ontology notwithstanding, what I want to suggest in part here is that Derrida’s account of these institutional concepts might have something to say to what has been called “social ontology.” In fact, as will become apparent in what follows, if Derrida follows Heidegger’s criticism of ontology for its disavowal of history, it seems to me that Derrida’s contribution to the discourse of “social ontology” is his development of a reflection on the nature of institutions as historical entities, and that deconstruction exposes what is called “social ontology” to the problem

 For an attempt to reconstruct the literal terms of this debate, see Raoul Moati’s Derrida/ Searle: Deconstruction and Ordinary Language (2014), which offers one of the most promising attempts to diagnose the misunderstandings, but also fruitful and unrealized exchanges, between these two thinkers. As will become clear in what follows, I differ somewhat with Moati’s reading ultimately in that the letter sees Searle as capable of answering Derrida’s criticisms of the voluntarism still inherent in ordinary language philosophy in that Searle shifts this discourse’s account of “the intelligibility of intentions” away from a psychological story about intentions to a story about how social “convention” (Moati 2014, 91) can stabilize meaning. It seems to me that Moati actually underestimates the extent to which Derrida is attuned, albeit in a different sense than Searle, to the conventionality of intention, as his writings on speech act theory in those works that address the theme of institutions make clear. By putting these two thinkers into conversation around the problematic of “social ontology,” I thus hope to build on this work that Moati has done to reestablish a conversation between these traditions—deconstruction and ordinary language—but also complicate Moati’s contention that Derrida maintains a closeted commitment to an ahistoricized Husserlian intentionality. 1

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of history. In a word, I want to suggest that Derrida articulates a “social ontology” to the extent that, if the theme of deconstruction in the 1960s was historicity (as we saw in Chap. 2), then in the 1970s and 1980s the theme of deconstruction is the historicity of institutions and the question of institutionality becomes the dominant question in Derrida’s work during this period. A few words, then, by way of introduction to this term “social ontology.” In his book, Making the Social World: The Structure of Human Civilization, extending his earlier analyses in The Construction of Social Reality, Searle, one of the most influential contributors to this discourse, employs the term “social ontology” while advancing the remarkable thesis that “all human social institutions are brought into existence and continue in their existence by a single logico-linguistic operation that can be applied over and over again” (Searle 2009, 62). More specifically, according to Searle, the cause or origin of every social fact—that is, facts established by the collective intentionality of human beings—is a certain type of speech act. Searle’s name for this ‘logico-linguistic operation’ is the declaration, and he sees the business of social ontology as first and foremost a philosophical analysis of declarations (an insight that, up to a point, as we are about to see, he shares with Derrida). That is, for Searle, any positive account of social life undertaken by the social sciences is ultimately an account of facts that have been established by declarations; as such, insofar as a declaration is a ‘logico-linguistic operation’ that admits of philosophical analysis, there is a role for philosophy to play in clarifying the foundations of the social sciences in that it can account for the logical grammar of this speech act that establishes the facts that these sciences study. In his 1968 paper “Austin on Locutionary and Illocutionary Acts,” and his 1975 paper, “A Taxonomy of Illocutionary Acts,” Searle had already given a definition of declarations as part of a more general attempt to re-­ elaborate J.L. Austin’s theory of speech acts. Searle’s account of declarations there, and thus his later account of human social institutions, needs to be understood in the context of this revision of Austin’s attempt, in How to Do Things with Words, to undo a binary understanding of linguistic practice that would oppose usages of language that describe the world (constative utterances) and usages of language that create or produce effects within it (performative utterances). As Austin notes, the attempt to separate constatives from performatives—by saying that the former are judged by whether they are true or false, and the latter by whether they are successful or unsuccessful—is undone by the fact that the truth/falsehood distinction can be applicable to performatives and the felicity/infelicity

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distinction can be applicable to constatives. However, as Searle observes, in questioning this opposition between performatives and constatives, Austin also proposes another: between locutionary and illocutionary acts. Briefly, a locutionary act refers to an utterance from the standpoint of its literal meaning, whereas an illocutionary act refers to an utterance from the standpoint of its force or what it aims to bring about. Such a distinction is important, Searle notes, because a sentence might have a single locutionary sense while being open to a variety of illocutionary forces as determined by a set of social conventions. In expanding upon Austin and developing his taxonomy of the variety of illocutionary acts that could characterize an utterance, Searle develops a set of twelve criteria for classifying them. Among these criteria, Searle identifies differences in the point or purpose of the act, differences in “direction of fit” (i.e., whether the utterance attempts to match or describe the world, or to bring about an effect so that the world will match it), and differences in expressed psychological states. When it comes to thinking about declarations, Searle’s fifth criteria (differences in the status of the speaker and hearer of the utterance) as well as the tenth criteria (differences between acts that require extra-linguistic institutions for their performance and those that do not) are the most crucial. For declarations are defined for Searle by the fact that they require extra-linguistic conventions—what he refers to as a set of “constitutive rules”—that determine the status and validity of utterances. Declarations are also peculiar for Searle because of the second criteria (direction of fit). Namely, what is distinctive about declarations, according to Searle, is that a successful declaration “brings about the correspondence between the propositional content and reality; successful performance guarantees that the propositional content corresponds to the world” (Searle 1975, 358). The direction of fit in the case of declarations is thus bi-directional: declarations describe as existing a certain state of affairs (the word-world fit) and in so doing bring about that state of affairs (the world-word fit). Notably, in this 1975 paper, Searle remarks upon the apparently paradoxical character of declarations as bi-directional: “But now with the declarations we discover a very peculiar relation. The performance of a declaration brings about a fit by its very successful performance. How is such a thing possible?” (1975, 359). As we are about to see, this is a question that Derrida shares in his own account of declarations and the institutions that declarations found. Now, according to Searle, a clue to it can be found if one considers the fact that declarations all “involve an extra-linguistic institution, a system of constitutive rules in addition to the constitutive rules of language, in order

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that the declaration may be successfully performed” (1975, 359). In other words, declarations are unique insofar as they intrinsically posit a relationship to socially constructed institutional conventions. As Searle notes, purely linguistic conventions are thus necessary but not sufficient to carry out a declaration successfully: “In addition there must exist an extra-­ linguistic institution and the speaker and hearer must occupy special places within this institution. It is only given such institutions as the church, the law, private property, the state, and a special position of the speaker and hearer within these institutions that one can excommunicate, appoint, give and bequeath one’s possessions, or declare war.” How then is it possible for a declaration to bring about a relationship between word and world through its very performance? The answer is simple in Searle’s view: some extra-linguistic institution must provide a status to the utterer of the declaration such that the utterer is authorized to bring about this relationship. Of course, however—and here we draw closer to Derrida’s interest in declarations—this raises the problem of the circularity of criteria: while de facto institutions can help us understand how declarations are successful, how can we understand the status of the declarations that gave rise to those institutions in the first place? The advancement of Searle’s later work, Making the Social World, is at least in part his attempt to answer this question. As Searle’s analysis shows there, in order to understand the efficacy of institutionally backed utterances, one needs to give an account of the declaration that gives rise to the institution (and the declarations that it in turn makes possible). This is illuminated by Searle’s later, more robust account of status or “status function,” which he conceives of as the fundamental unit of social life. A status function for Searle refers to the capacity of human beings to impose purposes, duties, and obligations upon people and things that are collectively recognized, and declarations refer to the act through which a status function is established. These status functions have what Searle refers to as “deontic powers,” in the sense that they endow the person or thing with “rights, duties, obligations, requirements, permissions, authorizations, entitlements, and so on” (2009, 9). In this sense, status functions and the declarations that found them are the glue that holds the social world together: they give us reasons for action that are not strictly bound up with our desires. An institution for Searle is thus “a system of constitutive rules, and such a system automatically creates the possibility of institutional facts.” And in this respect the study of social phenomena ultimately has an objective basis: “Once you see the power of the Declaration to

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create an institutional reality, a reality of governments, universities, marriages, private property, money, and all the rest of it, you can see that social reality has a formal structure as simple and elegant as the structure of the language used to create it” (2009, 16). While the notion that reality is socially constructed through speech acts is certainly not novel to Searle, I would argue that what is remarkable about his book is the status that it assigns to philosophy in accounting for the social construction of reality—a status that converges and diverges from the one that, as we will see, Derrida accords to philosophy. Namely, what Searle refers to as the “very strong claim” (2009, 12) of the book is that “with the important exception of language itself, all of institutional reality, and therefore, in a sense, all of human civilization, is created by speech acts that have the same logical form as declarations” (2009, 13), and for this reason, all social phenomena—and thereby the social sciences that study such phenomena—presuppose something like a social ontology that it would be the task of philosophy to clarify: an interpretation of the fundamental nature and genesis of social facts. In this vein, in the final section of his book, which is entitled “the ontological foundations of the social sciences,” Searle clarifies that it has been his aim to develop a “logical analysis of the fundamental ontology of the entities studied by the social sciences” (2009, 200–201). In what sense then can I mean to say, as the title of this chapter indicates, that Derrida too articulates a “social ontology”? Here it is helpful to turn again to “Privilege: Justificatory Title and Remarks.” There, as we saw, Derrida makes a bold claim about the relationship between his own philosophical practice and institutions. Deconstruction, Derrida suggests, should not only be understood as opening up new possibilities of thought through an interpretation of texts, but is just as much undertaken as a response to a responsibility to transform the institutional arrangements in which it finds itself. Specifically, referencing a series of conceptual oppositions that have characterized what he takes to be the dominant tradition of philosophical discourse, Derrida claims that the deconstruction of these oppositions, “immediately concerns, just as much and just as radically the institutional structures founded on such oppositions” (Derrida 2002a, 53). It is in this context that Derrida offers the definition of his philosophy that the present study has sought to reconstruct and defend: deconstruction, he says, is “an institutional practice,” although one for which “the concept of the institution remains a problem.”

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What I would like to suggest in this chapter is that the concept of the institution poses a “problem” for Derrida in the specific sense that he believes that institutional life, specifically  in its historical character, is inflected by a certain paradox that is worthy of philosophical reflection. This paradox, or—to use Derrida’s word—aporia, concerns the relationship between institutions and the “right” [droit]—the legitimate force or authority—that they appeal to as a condition of their functioning. As Derrida makes clear in Right to Philosophy, the defining characteristic of an institution (in a fashion that, up to a point, is not dissimilar to Searle) is that it is entitled to confer titles—rights, powers, and possibilities of being—upon people and things. By invoking the historically sedimented code of an institution—i.e., that network of fungible norms and rules through which it sustains itself and sustains a certain interpretation of the world—and by being endowed by the institution with the right to invoke this code, one becomes an institutional agent, able to set into motion certain effects by virtue of speech and action. Such institutional acts, as Derrida notes, can only function if the institutional context that they invoke is already presumed to be in force or rightful in the first place; indeed, it belongs to the structure of every such act to always, at least tacitly, re-assert the authority of the institution from which it derives its own force. However—and here is where Derrida parts ways from Searle and the discourse of “social ontology”—for Derrida this right or entitlement of an institution to confer titles is not so simple and cannot be summed up merely with a logical analysis of the formal features of the linguistic act that achieves this function, but in fact becomes paradoxical as soon as one asks about its origin or, to use the terminology of the previous chapter, it’s historicity. This would take the form of a question: by what right has the institution been authorized to confer rights? Now, in Derrida’s estimation, as I described in the introduction, the response to this question seems to take the form of a circle or infinite regress: the entity that confers titles (the institution) can only do so if it has itself already been entitled, but this entitlement can always be questioned in turn. As I will argue over the course of this chapter, Derrida’s account of institutional normativity, to the extent that it assigns a paradoxically productive power to this irreducible non-foundation of any institutional structure, differs from two other approaches that I will describe here for heuristic purposes: institutional foundationalism and institutional historicism. For the foundationalist, institutional normativity can be secured and the circle/regress avoided by referring the legitimacy of the institutional code to some supreme entity, whether divine or worldly (e.g., God, nature,

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or reason). To say, for instance, that the institution of marriage is ordained by God as being between one man and one woman is to justify a present state of arrangements by appealing to a principle (God) that by definition is not to be questioned; such an institution can only be in force by virtue of faith and credit in the same way that the axioms of the Natural Light, as we saw in the last chapter, are for Descartes. By contrast, the historicist, skeptical about this sort of metaphysical assurance, might suggest that the institutional presupposition can only be resolved by being dissolved as a problem; rather than asking about the origins of institutional normativity, the historicist might opt for a strictly positivistic account of the history of institutional forms, their effects, and the possibility of their transformation, avoiding the normative question altogether. As we saw with the case of Foucault, however, if the historicist ever moves beyond description to critique, it will always be possible to ask about the conditions for the possibility of this critical discourse that purports to set itself apart from the history of the institution that it narrates. And Searle would have to be included in this camp as well to the extent that his elaboration of the “ontological foundations” of the social sciences takes as a given the facts the social sciences describe even if it does engage in a formal logical analysis of what something like a social fact presupposes. That is, for Searle, something like the normativity of social facts just is an accomplishment without further mystery—and certainly no aporia—whose facticity can be logically analyzed. As might be expected, given the extent to which Derrida’s reflections on history (as we saw in Chap. 2) were defined by an attempt to chart a middle path between the teleology still latent in phenomenological transcendentalism and the relativizing of a structuralist neo-historicism, when he turns to this question about the historical character of the normative claims of institutions, he develops an account of institutional normativity that differs from both of the ideal types described above. My aim over the course of the next two chapters is to unfold this alternative account. As we will see, Derrida’s claim will be that the groundless ground upon which institutions qua historical entities are erected is irreducible (in contrast to the foundationalist), but he also sees this constitutive disjuncture between positive institutional normativity and its foundation, which can be neither normative nor non-normative, as not entailing a paralyzing skepticism about the claim of social facts. Indeed, Derrida wants to suggest that the only meaningful sense in which I can be said to be responsible for the social world is if the supports of the institutions that sustain this world are fragile and fungible and can, in some sense, never justify themselves with

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a wholly clean conscience by appeal to some metaphysical alibi—for it is only in the absence of such an alibi that something like an ethical and political relationship to institutional life is possible. As we will see, opposed to both the foundationalist stories that have sought to provide a metaphysical alibi for institutions, as well as those empiricist histories that have avoided the question of right and origin altogether, deconstruction—to the extent that it is a critical institutional practice—is unique in giving an account of the historicity of the right and rights that institutions make possible. In a word, Derrida, by inquiring into the origins of the social world, contributes to “social ontology” a reflection on what being responsible for that world presupposes, and he finds that the royal road to such a notion of responsibility is a reflection on the historicity of the social world as it is mediated by institutions. The aim then of the present chapter, which spans Derrida’s writings from the 1970s to early 1980s, is to reconstruct the fundamental concepts that Derrida deploys in what I want to suggest amounts to a philosophical theory of institutions. To begin with, in “Sect. 3.2 Derrida on the Origin of Institutions: A Reading of ‘Declarations of Independence’,” I turn to the text that distills most succinctly Derrida’s understanding of what he refers to as “the institutional presupposition”: his 1976 “Declarations of Independence.” As we will see in turning to Derrida’s analysis of the U.S.  Declaration of Independence, Derrida is up to a point remarkably similar to Searle in understanding institutions to be constituted through a particular type of linguistic usage—the declaration—but differs from Searle to the extent that he argues that this species of language has an irreducibly paradoxical structure that any philosophical analysis worthy of the name needs to account for. As Derrida shows, a declaration is a peculiar type of performative to the extent that it tacitly appeals, in its own enunciation in the future anterior, to the legitimating authority of the normative order that it itself wishes to call into being. In this respect, declarations and the institutions to which they give rise have the structure of a fiction or what Derrida calls “fable.” This irreducible recourse to fiction implies that the signature that is appended to a declaration—the index of the source or origin of a declarative utterance—will always invent the legitimacy of its own signer. In “Sect. 3.3 Reckoning Accidents: Toward a Theory of General Performativity,” I argue for the need to situate this account of declarations in the context of Derrida’s broader engagement with speech act theory and the performative, and I do so through a reading of Derrida’s perhaps

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best known intervention on this discourse: “Signature, Event, Context.” There I explore how, calling into question the values of “ordinary language” and the “ordinary,” Derrida’s intervention upon speech act theory—both in the case of declarations but also more generally—is to say that for it to be justifiable qua theory, it will need to account for—instead of eliminating as an empirical accident—the paradoxical character of parts of speech such as declarations and signatures. At stake here is a clarification of the nature of Derrida’s engagement with the vocabulary of speech act theory that has implications for the emerging notion of responsibility that Derrida affiliates with our relationship to institutions: rather than the reduction or dismissal that it has sometimes been received as by the partisans of Austin (such as Searle), Derrida’s engagement with this discourse is an attempt to account for, as opposed to exclude, the structural possibility of infelicity that Austin observed but never sufficiently theorized. As we will see, Derrida’s suggestion is that the acknowledgment of such a possibility is also concomitant with the taking of a certain responsibility for how one does things with words. Finally, in “Sect. 3.4 Titles and the Question of Criteria (Derrida’s Institutions II: The Law of Literature),” I turn to two institutions that Derrida considers to be exemplary in the attempt to account for the fabular origins of the social world: literature and law. Why these institutions? To begin with, I show how for Derrida literature—in a peculiar sense of this term—is in some sense the exemplary modern institution in that modern literature is itself an institutional form that not only is founded upon laws and norms, but also has the capacity to reflect on its own origins as a work whose legibility depends upon a set of socially agreed upon conventions. Namely, in Derrida’s view, modern literature in the proper sense—in contrast with aesthetic productions more generally—is defined by and made possible by a certain tradition of law, rights, and human rights. In this respect, Derrida argues, the historicity of literature as an institution appeals to and in effect can be read as a commentary on the historicity of law, in that the literary institution would be that domain of license in which it is possible to reflect, play, and speculate upon the juridical conditions of its own possibility. In carrying out this clarification of the fundamental concepts of Derrida’s “social ontology”—the declaration, the signature, the title—we will be in a position in the fourth chapter of the book to understand how Derrida ultimately came to theorize the force and rights that a particular tradition—the emancipatory tradition of the Enlightenment—believed to

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be possible with respect to juridical institutions. More specifically, we will see how Derrida, in bringing to bear his earlier transcendental-historical reflections (discussed in Chap. 2) upon speech act theory in his account of the origins of social and political institutions (this chapter), will come to articulate a notion of responsibility that is rooted in an acknowledgment of the historicity of those juridical institutions that permit the flourishing of some lives and not others (Chap. 4).

3.2   Derrida on the Origin of Institutions: A Reading of “Declarations of Independence” Delivered on the occasion of the bicentennial of the U.S. Declaration of Independence as it was celebrated at the University of Virginia, Charlottesville in 1976, Derrida’s “Declarations of Independence” begins, as was often the case from his works during the 1970s and onward, by citing its own institutional context: “It is better that you know right away,” Derrida starts, “I am not going to keep my promise. I beg your pardon, but it will be impossible for me to speak to you this afternoon, even indirectly, about what it was that I was engaged to discuss. Very sincerely, I would have liked to be able to do so” (Derrida 2002b, 46). As becomes clear with the progression of his talk, these first lines of “Declarations of Independence” are put forward by Derrida as an exemplary speech act— namely, an excuse—that serves as a preface to the theme that he will address in the lecture. Specifically, here Derrida begins with an excuse, begging pardon, to throw into relief the question of what it means to be authorized by an institution to speak and the norms that govern address, not only in an academic space such as this one, but more generally. As Derrida goes on to explain, he had been invited to speak on this occasion by Roger Shattuck to develop a comparative analysis of the U.S. Declaration of Independence and the French Declaration of the Rights of Man, but will not talk about the latter; nevertheless, although he begins the lecture by saying that he will not speak about what he should have spoken about, Derrida goes on to say that he will “say a word about it” in the “form of an excuse.” Namely, rather than speaking directly about the events that the U.S. and French Declarations mark, Derrida begins his lecture by highlighting the fact that a set of normative conventions—that is, an institutional arrangement that authorizes certain statements and not others— in fact conditions his own remarks. In other words, Derrida wants to call attention to the fact that he speaks about questions of right—in this case,

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about the question of declaring, instituting, and founding right—within a situation that is itself governed by relations of right, authority, and authorization, as well as the possibility of their transgression. The upshot here is that his own putatively theoretical discourse on right is itself already pragmatically engaged by normative conventions that inform this discourse. Derrida demonstrates this fact by offering his remarks in the form of an excuse, by begging for pardon, invoking a promise and contract that had authorized him to speak by this institution. In so doing, he attempts to raise more general questions: What does it mean to be authorized to speak—that is, to have the right to speak—by an institution, such as the University of Virginia? What does it mean to engage oneself to speak—to promise to address a topic, to make oneself responsible for one’s utterances, to sign one’s name to those utterances? What does it mean that it is possible that the context and conventions that authorize a speech act also permit transgression and something like an event such as this one to occur? These questions are ultimately consolidated in a single inquiry that is the central focus of Derrida’s lecture: “who signs, and with what so-called proper name, the declarative act that founds an institution?” (2002b, 47). In speaking to the occasion of the Bicentennial, by asking this question about the U.S. Declaration, Derrida specifies right away that this is not— or at least not exclusively—an empirical question about the particular history of this text. As Derrida elaborates in his lecture, the case of the U.S. Declaration—that is, the declarative act that founds the United States as a sovereign entity—is illustrative of a certain aporia, or unavoidable impasse, that structures the experience of declarations as such: namely, that the author or subject of such an act—or, to use Derrida’s jargon, its signatory—is as much itself instituted qua signing subject by the declaration as the institution that this subject “creates.” In other words, the point here is that the declaration needs to state (in the form of a presupposition) the authority that it claims to instate. The word “creates” here needs to be placed in quotation marks because Derrida wants to suggest that declarations, as acts, are not transitive in the classical sense: it is not, as common sense might dictate, that subject A, by uttering declaration x, founds institution B; rather, the declaration x presupposes something like the possibility of the institution B that said declaration purports to found and the status that entitles A to speak in this fashion. There is a philosophical question to be pursued about the signature of the U.S. “Declaration of Independence”—a question about the subject who signs their name to this speech act—just as there is a question about the signature of everyday

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speech acts that appeal to institutional norms (such as Derrida’s own, at the University of Virginia), because the authority or credibility of such acts is only ever guaranteed by what the acts themselves declare or presuppose to have been declared. What this suggests is that a reflection on the origin of institutions cannot be limited to a positive, empirical, social-historical inquiry; this question about the signature and signer of an utterance that gives rise to an institution, or appeals to an institution, is ultimately a question about the conditions for the possibility of a declaration as such. Derrida approaches this question by engaging in what he refers to, with the vocabulary of phenomenology, as an “intentional analysis” of declarations. Notably, however, Derrida develops this intentional analysis—this account of the formal structures of the intentionality that characterizes declarative utterances—by deploying the vocabulary of Austin’s speech act theory. As we are about to see, crucial to Derrida’s analysis of institutions and their founding, as well as his discourse on the performative more generally, is this attempt to wed certain insights from phenomenology with those of speech act theory. Specifically, Derrida finds Austin’s distinction between the constative and the performative to be useful in “Declarations of Independence” because it throws into relief what is philosophically problematic or questionable about the intentionality of declarations that found institutions. In this vein, Derrida notes that although declarations are undoubtedly classifiable as performatives—the intentionality of a declaration (such as the U.S. Declaration) is not simply to describe, but to bring about a state of affairs (the U.S. as sovereign entity)—nevertheless declarations are peculiar because their performative force depends upon their constative form: declarations engender a new social state of affairs (e.g., the sovereign right of the people of the United States), by stating that this state of affairs is the case. Unlike the everyday speech act that presupposes the institutional frame of reference that lends it force and right (the “I now pronounce you man and wife” example described above), a declaration that founds an institution is peculiar as a performative because it founds in the same breath that it describes—undoing any kind of simple opposition between the constative and performative. As Derrida notes, according to the declaration itself, by right, Thomas Jefferson, its original drafter, cannot be understood to be its signer. Yes, Jefferson may have inscribed the majority of the words on a page that came to be the Declaration, but according to the logic of the Declaration,

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its rightful status as declaration is only guaranteed by the U.S. Continental Congress. In this sense, Jefferson cannot be thought of as the pure source of this utterance, but instead as the delegated representative of a representative body. However, the Continental Congress, according to the logic of the Declaration, cannot be said to be its signer either. For these representatives are inscribed in the Declaration as ultimately answerable to the “good people of the United States,” in whose name they commissioned Jefferson to draft the Declaration. By right, then, according to Derrida, it is the people who signs the declaration. But if the people sign the declaration—that is, if Jefferson signs in the name of the representatives who speak in the name of the people—then this signature is paradoxical because it is not clear whether the declaration states a fact about the people of the United States or is itself the act that constitutes this fact of the people as sovereign. The signatures of such declarations are peculiar, in other words, because it is not clear whether such declarations are a constative or performative utterance: it is a formal feature of a declaration to produce the existence of that about which it speaks—namely, a certain order of right—while also in the same breath saying that this right exists. As Derrida puts it, something like “the people of the United States,” as a political subject, could only be said to exist by virtue of the Declaration itself: “One cannot decide […] whether independence is stated or produced by this utterance […] is it that the good people have already freed themselves in fact and are only stating this fact of emancipation in the Declaration? Or is it rather that they free themselves at the instant of and by the signature of this Declaration?” (2002b, 49). According to Derrida, this undecidability—this condition in which it is not possible to decide whether the declaration is constative or performative—is not an empirical accident, but in fact a structural feature of the experience that characterizes declarative acts: “This obscurity, this undecidability between, let us say, a performative structure and a constative structure, is required to produce the sought-­after effect. It is essential to the very positing or position of a right as such […] I would even go so far as to say that every signature finds itself thus affected.” In other words, the act that institutes a right—any right—must take the form of an autoinvention or auto-affection: the people in whose name the “We” of the declaration signs “do not exist. They do not exist as an entity, the entity does not exist before this declaration, not as such. If it gives birth to

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itself, as free and independent subject, as possible signer, this can hold only in the act of the signature. The signature invents the signer. The signer can only authorize him- or herself to sign once he or she has come to the end” (2002b, 50). To say that the signature invents the signer is to say that there is no sovereign subject prior to the declarative act that can found an institution; the force of the declarative utterance ultimately stems from the fact that it both describes and founds—both constates and performs—something like the people in a single breath. In this respect, Derrida points out that properly speaking no right existed to authorize something like the existence of “the signer” of the declaration, since the declaration itself is what introduces something like the possibility of its own signer. As Derrida puts it, appealing to a fiduciary metaphor, any declaration “opens for itself a line of credit, its own credit for itself to itself. The self rises forth here in all cases (nominative, dative, accusative) as soon as a signature gives or extends credit to itself, in a single ‘coup de force,’ which is also a stroke [coup] of writing, as the right to writing.” If this is the formal structure of the experience of founding an institution, however, for Derrida what distinguishes the U.S.  Declaration as a declarative act is that it attempts to disavow its own historicity in much the same fashion as we saw occurred in Derrida’s analysis of the Cartesian appeal to God in the Meditations. For ultimately, in this document, it is not actually the people, but instead God who signs: the signature of the people is counter-signed or under-written by the signature of God, since, the document claims, it is the people who sign “in the name of the laws of nature and in the name of God.”2 This appeal to the theological has the effect of shoring up the peculiarity of the declaration: the U.S. Declaration is able to position itself as a constative utterance—as merely describing a factual state of affairs, i.e., that the Good People of the U.S. are free and equal—by appealing to the “laws of nature” and the God that produced such laws. As Derrida puts it, within the U.S. Declaration, God “founds natural laws, and thus the whole game that tends to present performative utterances as constative utterances” (2002b, 51). As Derrida notes, such a 2  As Geoffrey Bennington observes in “The Signature,” a detailed meditation on this concept in Derrida’s oeuvre, “any signature is a signature only on condition that it calls for or promises a countersignature” (Bennington 1993, 157), in the sense that every signature and thereby every counter-signature inscribes a relationship to the finitude of the signer. It is this relation to finitude that makes the name of God a compelling fantasy as guarantor of signature-effects to the extent that this name offers a fantasy of having done with this finitude.

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declaration is peculiar in that it “conjoins here two discursive modalities”: the descriptive and the normative, the “to be and ought to be, the constation and prescription, the fact and the right.” In this conjuncture, the “and is God,” who in this context is “the name—the best one—for this last instance and this ultimate signature” (2002b, 52). As Derrida puts it, glossing the intentionality of Jefferson’s text: “someone, let us call him Jefferson (but why not God?), desired that the institution of the American people should be, by the same token, the erection of his proper name. A name of state.” The U.S.  Declaration, in other words, both founds an institution and disavows the experience of its founding in the same breath: it is the intention to enact a new set of social facts while also simultaneously offering an interpretation of the ontological status of those social facts that disavows their precarious and ultimately invented authority. The question that Derrida’s analysis of declarations, signatures, and institutions in “Declarations of Independence” ultimately raises, I would argue, is the question of what it would mean to conceive of institutions, not as braced by a sovereign decision and divine seal, but instead in a fashion that avows their finite and historical character. In order to begin to unfold Derrida’s response to this question—and, as we will see in the following chapter, that answer will be emphatically in the affirmative—it will first be necessary to speak in more detail, however, about Derrida’s concept of the signature and the protocols of his engagement with speech act theory more generally. For if in “Declarations of Independence” Derrida diagnoses one example of how the historically contingent and precarious character of institutional life can give rise to phantasies of sovereignty and omnipotence (Jefferson’s God), in “Signature, Event, Context” Derrida attempts to imagine what it would mean to affirm a renunciation of this drive for sovereign authority vis-à-vis institutions.

3.3  Reckoning Accidents: Toward a Theory of General Performativity Signature Event Context analyzes the metaphysical premises of the Anglo-­ Saxon—and fundamentally moralistic—theory of the performative, of speech acts or discursive events. In France, it seems to me that these premises underlie the hermeneutics of Ricoeur and the archaeology of Foucault. Limited Inc. (Derrida 1988, 39)

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In the previous section, we saw that Derrida’s central claim about the performative speech act that founds an institution—the declaration—is that this act of founding bears within it an intrinsically fraught relationship with its own historical character: declarations invent social and political possibilities that, according to the intentional structure of the declaration, both must and cannot exist in advance. To cite Derrida’s fiduciary metaphor: every institution presupposes something like a line of credit, but the substantive backing of this credit is ultimately an invention. If in the previous section we saw Derrida’s critique of foundationalist attempts to shore up the credibility of institutions, here I will try to justify Derrida’s critique of the empiricist or historicist who would try to deny the pertinence of any kind of philosophical questioning about the origins of institutions altogether. For one way of responding to Derrida’s account of the origins of those declarations that give rise to institutions is to say that they are simply positive socio-historical phenomena whose logic can be analyzed and whose origins are mundane (a la Searle). From such a point of view, it would be a mistake to ask about anything other than an empirical origin and history of institutions, because doing otherwise will simply lead one to tell the kind of metaphysical fables about their origins that Derrida himself critiques. In order to see why Derrida thinks that a philosophical theory of institutions needs to begin with an account of origins that is not merely empiricist, but instead attends to a certain nonempirical non-foundation at the heart of institutional life (to borrow the phenomenological vocabulary from the previous chapter), it will be helpful to turn to Derrida’s “Signature, Event, Context.” For it is in this essay that Derrida, responding to the empiricism of speech act theory, sets a benchmark for what a philosophical theory of performative utterances requires. Namely, as we will see, for Derrida the fact that institutional utterances are subject to historicity does not imply a neutrality or relativism about their normative status, but is instead the condition for the possibility of taking responsibility for them. By revisiting “Signature, Event, Context” and its account of the structural infelicity and historicity that affects the social world constructed by declarations we will put ourselves in a position in Chap. 4 to understand how Derrida identifies this condition with a certain notion of responsibility. * * *

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Importantly, “Signature, Event, Context” is the final essay in Derrida’s 1972 collection, Marges de la philosophie, and was published with a note indicating that this text was “a communication to the Congres international des Societes de philosophie de langue francaise, Montreal, August 1971. The theme of the colloquium was ‘Communication.’” The reason that it is important when reading this essay to start by accounting for this note that dates the institutional context in which “Signature, Event, Context” was delivered is because this occasion is remarked upon and inscribed by Derrida from the opening pages of the essay until its end—and, as we are about to see, Derrida’s reflections on the concept of the institutional signature in this essay are bound up with this immanent reflection on the institutional conditions of “Signature, Event, Context.” For in the first, interrogative sentence of the essay, Derrida begins by implicitly asking about the presupposition embedded in the title of this event—this philosophical colloquium on the concept of communication— namely, that something like the concept of communication is known: “Is it certain that there corresponds to the word communication a unique, univocal concept, a concept that can be rigorously grasped and transmitted: a communicable concept?” (Derrida 1982, 309). As Derrida begins by noting, in formulating his own communication about communication (“Signature, Event, Context”)—in implicitly asking the question: what is ‘communication’?—he and the other participants in this conference necessarily will have recourse to some presupposed or operative concept of communication. For example, as Derrida notes in remarking on his own first sentence: in asking about “communication,” and whether there is a communicable concept that corresponds to this word, this sentence seems to suppose that when we talk about communication we are talking about something semantic, understanding communication in the sense of a “vehicle, transport, or site of passage of a meaning, and of a meaning that is one” (1982, 309). However, as Derrida notes, if one even consults the ordinary usage of the word “communication,” what one finds is that communication qua semantic communication is but one possible sense that this word can take on. For one can also speak of non-semantic “communications” as well: “one may, for example, communicate a movement, or that a tremor, shock, a displacement of force can be communicated—that is, propagated, transmitted.” In other words, the fact of polysemy that characterizes ordinary language would seem to indicate that the answer to Derrida’s initial question—“Is it certain that there corresponds to the

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word communication a unique, univocal concept, a concept that can be rigorously grasped and transmitted: a communicable concept?”—is a no: it is not certain that the word communication—or for that matter any other word—can be said to correspond to a singular and univocal meaning, since linguistic usage permits that words can take on a variety of senses. In other words, according to Derrida, there would appear to be no philosophical basis—no principled justification—for attempting to save the idea of unique and univocal meaning—a one-to-one correspondence between word and idea/concept—by insisting that one or another of the senses of the word communication is the “proper” or “literal” meaning. Rather than rooting our capacity to identify the meaning of a word like communication in an intrinsic feature of the word, Derrida notes that the extra-linguistic institutional context in which words occur would seem to offer at least some hope for anchoring meaning. That is, by attending to the particular, empirical, socio-historical context in which a word like “communication” occurs, one might be able to determine the proper sense of this word in said context. In this vein, turning again to the context of his own communication about communication at the Congress, Derrida notes that at a philosophical colloquium such as this one there are a number of conventional codes that would allow one to determine a “structurally vague consensus” (1982, 310) about the meaning and intent of the speech acts—the communications—that will occur there. For instance, by attending to this context, one might be able to suppose that the communications about communication occurring at the Congress will be “in discursive form, colloquial, oral communications destined to be understood and to open or pursue dialogues within the horizon of an intelligibility and truth of meaning, such that in principle a general agreement may finally be established.” Moreover, attending to context would seem to tell one that these communications about communication should occur in a particular language—French—with a particular history that would determine the meaning of this word. Derrida’s point, in other words, is that, at least to a degree, the conjunction between a word and its concept (in this case, the word communication) can be determined by situating it in its institutional context; despite the undeniable fact of polysemy, it will be possible to determine the literal or proper sense of words by attending to the context of their usage.

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However, as plausible as this theory of meaning might be for pragmatic purposes—after all, every day, people seem to be able to get along and know how to do things with words—the thesis that Derrida advances in “Signature, Event, Context” is that although the institutional contexts in which linguistic acts take place can pragmatically offer some assurance about the fit between words and concepts, it is nevertheless the case that in principle “a context is never absolutely determinable, or rather […] its determination is never certain or saturated” (1982, 310). What does Derrida mean by this? Derrida’s aim in “Signature, Event, Context” is ultimately to prove that there is a “theoretical insufficiency of the usual concept of (the linguistic or nonlinguistic) context such as it is accepted in numerous fields of investigation” (1982, 310), including speech act theory. Derrida’s thesis, as we will see, is that there can be no “rigorous and scientific concept” of context unless this concept accounts for the fact that there is an irreducible element of chance or uncertainty that affects meaning in its institutionalization as a historical phenomenon. While from the standpoint of ordinary language, the infelicities that affect our understanding of a word or the effect of an utterance are empirical accidents, from Derrida’s point of view, there is a structural possibility of indetermination, infelicity, and chance that affects linguistic usage that Austin described but never accounted for theoretically. While this aspect of Derrida’s essay is well known in the reception of “Signature, Event, Context,” here I will argue that this argument about the structural indetermination or dissemination of performative utterances like declarations has profound implications, not only for whatever philosophy of language one might impute to Derrida, but also for the account of institutions—the social and political philosophy—that Derrida will come to articulate in later writings. To understand Derrida’s intervention upon Austin, however, it will be necessary to say something more about Derrida’s early work and, in particular, a word about where “Signature, Event, Context” fits within Derrida’s project. Specifically, Derrida’s strategy in “Signature, Event, Context” is to home in on what he considers to be a particularly symptomatic concept, not only in Austin’s texts, but in the philosophical tradition more generally—the concept of writing—in order to unmask a set of dogmatic and ultimately questionable decisions that have historically structured that tradition. Derrida announces this strategy that will guide his reading at the outset of the essay, in his epigraph quoting Austin’s How

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to Do Things with Words, where Austin writes the following: “Still confining ourselves, for simplicity, to spoken utterance.” In the passage in question, Austin announces a methodological decision: in developing his theory of the performative, Austin declares that he will exclude from his consideration so-called abnormal cases, such as when language is used in a written, fictional context; instead, Austin will derive his account of the performative from an analysis of what he takes to be ordinary linguistic usage, which he identifies with sincere spoken utterances. As we will see, in Derrida’s estimation, this sentence is indicative of a suspect methodological and theoretical decision by Austin, and Derrida’s intervention will ultimately be to ask what it would mean to develop a theory of the performative that accounts for the kind of cases that Austin treats as abnormal, parasitical, and derivative.3 Now, the “grammatological” moment in “Signature, Event, Context” occurs when Derrida, having isolated those attributes of the classical concept of writing, makes the argument that all of those attributes not only characterize the written sign, but even those oral utterances that the speech act theorist would like to protect as “normal.” On what grounds  The first section of Derrida’s essay, “Writing and Telecommunication,” sets the stage for this intervention by summarizing the critique of the concept of writing that Derrida had carried out in his first major series of publications from 1967: the triptych of texts comprising Writing and Difference, Of Grammatology, and Voice and Phenomenon. As Derrida puts it in “Implications,” a 1968 interview with Henri Ronse that was subsequently annotated and published in Positions in 1972 (the same year that Derrida published “Signature, Event Context” in Margins), the concept of writing interested him to the extent that it can be read in philosophical discourses as a “particularly revelatory symptom” (1981, 7) of philosophy’s commitment to what we saw described in Chap. 1 as the founding value of presence. What does a philosophy’s statements about writing reveal about this commitment to presence? Derrida unfolds his answer to this question by noting that this tradition, from Plato to Hegel and Husserl, the phonetic writing of the alphabet has always been understood as the essence or telos of writing as such; that is, despite the existence of non-phonetic, non-alphabetic scripts, writing for philosophy has always been determined in its essence as the graphic representation of speech sounds (phonemes). In Derrida’s estimation, this ethnocentric interpretation of writing is not simply a cultural prejudice, bias, or accident; rather, as he puts it in Of Grammatology, this phonocentrism of philosophy exists “for enigmatic yet essential reasons that are inaccessible to a simple historical relativism” (1976, 3). Namely, by treating writing and all that is associated with it as secondary and accidental to the constitution of sense, philosophy privileged speech because this medium of expression would appear to maintain a more immediate relationship to sense, preserving what Derrida, following Heidegger, calls presence: the clear and present intuition of meaning. 3

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does Derrida make this claim? As Derrida notes, any element of spoken language, if it is to maintain “a certain self-identity […] must permit its recognition and repetition. Across empirical variations of tone, of voice, etc., eventually to a certain accent, for example, one must be able to recognize the identity, shall we say, of a signifying form” (1982, 318). Derrida’s claim here is that even in order for an element of spoken language to function, that element must be able to be recognized as the same despite differences in expression across time and place. As Derrida notes, however, “this unity of the signifying form is constituted only by its iterability, by the possibility of being repeated in the absence not only of its referent, which goes without saying, but of a determined signified or current intention of signification, as of every present intention of communication.” This leads to Derrida’s conclusion that “this structural possibility of being severed from its referent or signified (and therefore from communication and its context) seems to me to make of every mark, even if oral, a grapheme in general, that is, as we have seen, the nonpresent remaining (restance) of a differential mark cut off from its alleged ‘production’ or origin.” In order to make this argument that any signifying element, even an oral signifying element, must be able to function in the absence of its referent and in the absence of a signified content (that is, in order to say that the predicates of what philosophy has called writing are characteristic of signification as such), Derrida recalls Husserl’s analysis of the sign in the first of the Logical Investigations—a topic that Derrida had treated it at length in Voice and Phenomenon. As Derrida notes, glossing Husserl, a statement must be able to function even if the referent—the actual object—of the statement is absent. As an example of this, Derrida notes that the statement “The sky is blue” is intelligible even if the speaker of the statement or the person it is communicated to cannot see the object—the sky—that the statement indexes. For Derrida, the key point here is that although it is undoubtedly true that sometimes the statement “The sky is blue” occurs when both its speaker and addressee are looking at an actually blue sky, the “structure of possibility of this statement includes the capability of being formed and of functioning either as an empty reference, or cut off from its referent” (1982, 318–319). The point here is that an oral utterance, not unlike a written mark in this respect, can in principle function and be meaningful if the referent is not present, and thus any theory of language will have to reckon with this structural

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possibility.4 This is what leads to Derrida’s major conclusion: “This is the possibility on which I want to insist: the possibility of extraction and of citational grafting which belongs to the structure of every mark, spoken or written, and which constitutes every mark as writing even before and outside every horizon of semiolinguistic communication.” It is by virtue of the fact, in other words, that every sign can in principle be cited and put in quotation marks that “it can break with every given context, and engender infinitely new contexts in an absolutely nonsaturable fashion. This does not suppose that the mark is valid outside its context, but on the contrary that there are only contexts without any absolute center of absolute anchoring.” If Derrida’s argument has been persuasive up until this point, this raises a number of questions about the status of those performative utterances— declarations—that give rise to the social world. This is the primary question addressed by Derrida in the final section of the essay, and in concluding this chapter, my aim will be to tease out the implications of his treatment of the performative here for a theory of institutions. Now, in this section Derrida at the outset notes that Austin’s problematic of the performative 4  Derrida, following Husserl, notes that a statement must also be able to function in the absence of the signified being present as well. In this vein, Husserl gives three examples of intelligible linguistic usage that occur without a signified content being present to the intention of the utterance: (i) the usage of signs “without in active and current fashion animating them with my attention and intention to signify” (1982, 319), such as occurs, for example, in the manipulation of mathematical symbols; (ii) the usage of signs that have no objective signification that are nonetheless meaningful, such as occurs, for example, if someone were to say “The circle is square”—in this case, the statement has meaning even if it is false or contradictory; (iii) the usage of signs that are characterized by Sinnlosigkeit or what Derrida describes as “agrammaticality,” such as occurs, for example, with the phrases “Abracadabra” or “green is or,” in which there is “no more language attuned to the possibility of the intuition of objects given in person and signified in truth.” Although Husserl, because he privileges the possibility of a purely logical grammar, is led to treat this latter case of agrammaticality as derivative or secondary, as Derrida notes, even Husserl acknowledges that from the standpoint of pure grammar, such cases, in which there is no “relation of knowledge to a possible object” (Derrida 1982, 320) nevertheless represent cases of language that need to be treated in a theory of the sign. As Derrida notes, “it is only in the context of a will to know, by an epistemic intention, by a conscious relation to the object as an object of knowledge within a horizon of truth—it is in this oriented contextual field that ‘green is or’ is unacceptable.” And as he goes on to observe, these examples of agrammatical signification can always be reinscribed in a grammatical context: for example, when the French phrase le vert est ou is translated into German, this phrase can become grammatical, or even the phrase “green is or” can still become meaningful when it is citied as signifying an “example of agrammaticality.”

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is relevant here because Austin “seems to consider acts of discourse only as acts of communication” (1982, 321) and yet nevertheless “Austin’s notions of illocution and perlocution do not designate the transport or passage of a content of meaning, but in a way the communication of an original movement (to be defined in a general theory of action), an operation and the production of an effect.” In other words, if the performative utterance can be comprehended by the concept of communication, as Austin seems to suggest, then this is a peculiar conception of communication: a communication that does not seem to align with the classical conception described in the previous section of the essay—communication as willful, semantic transport. This is all to say that Derrida is interested in the problematic of the performative because he believes that it points in the direction of a critique of the kind of classical concept of communication that he sees as ascendant in the philosophical tradition: “The performative is a ‘communication’ which does not essentially limit itself to transporting an already constituted semantic content guarded by its own aiming at truth (truth as an unveiling of that which is in its Being, or as an adequation between a judicative statement and the thing itself)” (1982, 322). However, Derrida also asserts that despite these appearances of the problematic of the performative breaking with the voluntaristic metaphysics that ultimately arrested, say, Husserl’s concept of language, nevertheless Austin does not take into account “that which in the structure of locution (and therefore before any illocutory or perlocutory determination) already bears within itself the system of predicates that I call graphematic in general, which therefore confuses all the ulterior oppositions whose pertinence, purity, and rigor Austin sought to establish in vain.” What Derrida is claiming here is that the grammatological move that he made in the first part of the essay—demonstrating how the predicates that this voluntaristic metaphysics has assigned to written, in opposition to oral, signification, can be said to characterize signification as such—needs to be made in the case of the performative as well. In making this argument, Derrida specifically claims that the value of context is problematic in Austin’s analysis of the performative. More specifically, Derrida believes that there are a number of questionable assumptions loaded into Austin’s conception of context that are a condition for the possibility of a successful performative utterance. Among these is “consciousness, the conscious presence of the intention of the speaking subject for the totality of his locutory act.” By this Derrida means to say that it is a presupposition of the cases that Austin analyzes as normal that

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one of the felicity conditions for a performative is that its utterer be the communicator of an “intentional meaning. Even if this meaning has no referent in the form of a prior or exterior thing of state of affairs, such as occurs in the case of the constative utterance.” For Derrida, “this conscious presence of the speakers or receivers who participate in the effecting of a performative, their conscious and intentional presence in the totality of the operation, implies teleologically that no remainder escapes the present totalization.” For Derrida this requirement of consciousness reduces the possibility of Austin accounting for the kind of “irreducible polysemia” or “dissemination” that he had demonstrated in the previous section to be a cardinal feature of signification. As Derrida notes in this vein, citing him, Austin seems to suggest that the felicity of a performative depends upon our understanding its speaker to have performed certain physical or mental actions that indicate sincerity. What Derrida finds recalcitrant in Austin’s analysis here, despite his apparent break with the voluntarist metaphysics of say a Husserl, is “the teleological jurisdiction of a total field where intention remains the organizing center” (1982, 323): Austin’s procedure is rather remarkable, and typical of the philosophical tradition that he prefers to have little to do with. It consists in recognizing that the possibility of the negative (here, the infelicities) is certainly a structural possibility, that failure is an essential risk in the operations under consideration; and then, with an almost immediately simultaneous gesture made in the name of a kind of ideal regulation, an exclusion of this risk as an accidental, exterior one that teaches us nothing about the language phenomenon under consideration. This is all the more curious, and actually rigorously untenable, in that Austin denounces with irony the ‘fetish’ of opposition value/fact. (1982, 323)

Here we come to what is Derrida’s probably most important philosophical argument about Austin’s concept of the performative. Namely, Derrida maintains that Austin—and in this respect Austin is analogous, despite appearances, with Husserl—treats negative cases, i.e., infelicities, as empirical accidents as opposed to accounting for these ‘accidents’ within the substance of the theory of language that he is advocating. If this might be thought of as a classical theoretical gesture, what Derrida is proposing to advance is a non-classical theory of the performative: a theory of the performative that treats the structural possibility of failure or infelicity as structural. As Derrida notes, although Austin “recognizes that all

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conventional acts are exposed to failure” (1982, 323), Austin never theorizes this failure “as an essential predicate or law” (1982, 324). More specifically, if it is true, as Austin states, that infelicity is an ill to which all performatives are subject, at least in principle, qua iterable, then Derrida thinks that it follows that Austin would need to incorporate this structural possibility—“the fact that something possible—a possible risk—is always possible, is somehow a necessary possibility”—into what he describes as a “general theory.” Notably, for Derrida, Austin’s unwillingness to develop this kind of general theory of performativity—his unwillingness to account for the rule or law according to which infelicity is always possible to the extent that its success depends upon reiteration—is indicated by a moment of the text in which Austin considers a concept that I have argued to be central to Derrida’s theorization of the origin of institutions: the signature. In the final section of his essay, “Signatures,” Derrida argues that it is no accident that the theoretical blockage that he has identified in Austin’s account of the performative is concentrated in his treatment of writing. In particular, Derrida focuses on the moment when the example of the legal signature arises in How to Do Things with Words. Specifically, in the Fifth Lecture, Austin addresses why he has privileged “the forms of the first-person present indicative in the active voice in the analysis of the performative” (Derrida 1982, 328). For Derrida, what is significant about this privilege given to this particular form of language is that it loads a presupposition about the relationship between an utterance and its source into Austin’s analysis of the performative. Namely, it leads Austin, in Derrida’s view, to not “doubt that the source of an oral statement in the first person present indicative (active voice) is present in the utterance and in the statement.” For Derrida, this presumption about the presence of the source to the utterance in oral utterances is mirrored in Austin’s description of the signature in written utterances. Namely, in Austin’s view, what allows one to have confidence about the link between utterance and utterance-source in writing is a signature. That is, for Austin, a signature in written discourse performs an analogous function to that of the pronoun ‘I’ in oral discourse: it tethers speech to some localizable intentionality. As Austin explains, the signature in a written utterance serves as a supplement, given the fact that, unlike in oral utterances, in which the emission of an utterance from a person ties it to them, written utterances or inscriptions are “not tethered to their origin in the way spoken ones are” (1982, 328). Derrida’s intervention upon Austin’s account of the signature is formally

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analogous to the gesture that he had performed throughout the rest of the essay: he aims to show that the “established predicates” that characterize writing—in this case, the written signature—will also hold true for oral utterances. In this vein, Derrida suggests that the primary predicate of the written signature is “the actual or empirical nonpresence of the signer.” By this Derrida simply means to say that in order for a signature to function— in order for a signature to be a signature—by definition, in principle, it needs to be able to do without its signer, functioning in their absence. It might be the case that I am present with my signature at a particular moment, but it is a structural possibility of every signature, affecting the signature even when I am present with it, to be able to do without me. In order to throw into relief how this paradoxical effect of signature affects the most ordinary speech acts, Derrida closes his oral communication to the Congress on communication by fictively signing and dating his text, appending a paraph to it retroactively. In so doing, Derrida aims to show how the emission of his own communication can be tethered to a singular person, time, and place, but also how this tethering itself always admits of the possibility of being staged, which points to the fact that Derrida’s communication can always do without him, engendering public effects even if he would answer for it after the fact by appending his name to it. This gesture, in other words, serves the purpose of inscribing within and making explicit a fact about textual institutions like this one that is taken as self-evident. And although one might say that Derrida’s speech act is a communication (assuming, again, that one knows what such a thing is) and that Jefferson’s speech act is a declaration (assuming, again, that one knows what such a thing is and when it takes place) what one would have to say about both of these acts as performative utterances is that they introduce chance onto the scene—a chance that, we saw, Jefferson disavows, but that Derrida seeks to avow here. And what is ultimately at stake in this avowal is an attempt, philosophically, to expose the ordinary, in its confidence in the credibility of signatures—that is, its confidence in those performatively, which is to say socially and historically, produced identities—to a non-foundation that, as we saw in Chap. 2, haunts their institution and the institutions that ensure their credit and credibility. This non-foundation, Derrida attempts to demonstrate performatively here, is both the chance of an event that is coeval with the threat of their erasure.

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With this reading of “Signature, Event, Context” in hand we are now in a position to take stock of the first element of Derrida’s theory of institutions: his account of their origin or historicity. Taken together, what I want to suggest here is that Derrida’s analysis of declarations and signatures in “Declarations of Independence” and “Signature, Event, Context” articulates an important structural feature of the act of founding an institution that any “social ontology” will need to consider. Specifically, Derrida’s analysis here shows that, even if, in the natural attitude that characterizes our ordinary usage of language, effects of signature backed by institutions constantly work, the solidity of the social world in fact rests upon an abyss. Derrida ultimately argues for the need of any philosophy of institutions worthy of the name to reckon with this non-foundation of meaning at the root of founded social facts, not in an attempt to deracinate, confuse, or suggest that it all amounts to nonsense, or to oppose the mundane assertion that we know how to do things with words, but to countenance the social given this fact of its constitutive unmooring. As we are about to see, beginning in the next section and especially in the following chapter, what is ultimately at stake for Derrida in reckoning with the irreducibly accidental, contingent, and fungible character of the social world is the possibility of assuming a certain kind of responsibility for it, rather than existing in the naiveté of a clean conscience about the present. More specifically, if the previous two sections of this chapter have shown that a declaration that founds an institutions always calls for or presupposes a coup de force, or the establishment of what from the standpoint of the present is an illicit line of credit that makes new signers and subjectivities possible, this raises the question of what it would mean to account for this fact as opposed to telling stories about it (that is, dispensing with the theological fables of foundationalism) or ignoring this structure altogether (that is, without blinkering oneself to all questions of origin in the manner of the empiricisms of Foucault and Searle). If we have seen Derrida in “Signature, Event, Context” produce a speech act that attempts to inscribe this fraught relationship to the finite historicity of institutionality, one might wonder: are there other institutions and other institution-founding acts that do this? And what would they have to teach us about institutional life? As we are about to see, during the 1970s and early 1980s, for Derrida it is literature, and specifically the institution of modern literature, that offers an exemplar—a guiding light—for understanding this aporia that is constitutive of institutional life.

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3.4  Titles and the Question of Criteria (Derrida’s Institutions II: The Law of Literature) There are most probably grounds for elaborating together a certain historicity of law and a certain historicity of literature. If I say "literature" rather than poetry or belles-lettres, I do so in order to indicate that hypothesis according to which the relatively modern specificity of literature as such retains a close and essential relationship with a moment in the history of law. Before the Law: The Complete Text of Préjugés (Derrida 2018, 68–9)

Notably, in “Declarations of Independence,” when Derrida says that the signature of a declaration invents its signer, he goes on to say that the structure of declarations can be thought of as a kind of fable. “This signer,” Derrida writes of the signing subject of the U.S. Declaration, “can only authorize him-or herself to sign once he or she has come to the end [of the declaration, once the institution has been established]—if one can say this of his or her own signature in a sort of fabulous retroactivity” (Derrida 2002b, 50). In saying that this retroactivity is “fabulous,” Derrida clarifies, he does not mean to say that this would only be true of this particular declarative speech act; instead, Derrida notes, and as he observed in “Signature, Event, Context,” what he refers to as signature-effects—that is, effects stemming from speech acts that implicitly or explicitly draw their force from a declarative structure and the institution it founds—are something that “happens every day,” remarking in passing that, every time he pauses to reflect on this, he thinks of a certain poem of Francis Ponge called “Fable” (2002b, 49–50): a poem that begins with the line, “With the word with begins then this text,” in order to mark the arbitrariness and mundanity of its own origin (the word “with”) and also tacitly invoking but also taking distance from the sovereign assurance of the biblical “In the beginning was the word.”5 In closing this chapter—and in attempting to clarify the sense in which, for Derrida, declarations and the institutions to which they give rise are in some sense fabular—it is helpful to consider Derrida’s reflections in the 1970s and 1980s on a particular institution: modern literature. Why literature? It is a natural question to ask given the fact that, as has been mentioned, Derrida’s reflections on institutions ultimately would go on to  For Derrida’s most sustained analysis of this poem, see “Psyche: Inventions of the Other” (2007). 5

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tend in the direction of an inquiry to questions of law, right, and justice. And indeed, the very idea of thinking of literature as an institution might strike readers at first blush as strange. However, as we are about to see, Derrida is distinguished from other philosophers who write about literature in that he is not actually interested in developing an aesthetic theory or philosophy of literature—or even a method of interpreting literary texts—but is in fact interested in the idea of modern literature as a historically specific tradition that was made possible by a set of juridical conventions. As we will see, the literary texts that interest Derrida are selected by him for analysis to the extent that these texts are able to inscribe a relationship to their own institutionality as socially established phenomena. Derrida’s writings on Ponge are the best place to begin here, and it seems to me no accident that in “Declarations of Independence”—a text ostensibly about the law—he cites the poet Ponge. For during the same period in which he delivered “Declarations of Independence,” Derrida had also undertaken a study of Ponge’s poetics—delivering a lecture at Cerisy-La-Salle in the same year as “Declarations” that would subsequently be published as the monograph Signsponge—in which he elaborated further his theory of the concept that, as we have seen, informs his writings on social and political institutions: the signature. As we are about to see, first considering Signsponge and then Derrida’s reading of Kafka delivered upon his next visit to Cerisy, for Derrida certain speech acts that can be thought of as literary in a specific sense are worth considering for a theory of declarations—and thereby a theory of institutions—to the extent that they illuminate the circular structure of the speech acts that found institutions. In this respect, as we are about to see, Derrida will speak of the institution of literature as itself somewhat exemplary among institutions, in that modern literature, as Derrida understands it, is—or at least can be—defined by a reflexive relationship to its own institutionality. The reason that these texts ultimately come to matter for Derrida is that he sees them as articulating a relationship to the authority or foundation of institutions that is not captured by the phantasy of sovereign omnipotence, or the disavowal of historicity that he believes characterizes the philosophical tradition’s relationship to the juridical. Beginning with Signsponge, then, it is worth noting at the outset that the title of Derrida’s text on Ponge contains a reference to the question of the signature—and, as we will see, in fact communicates directly with this question as it had come up in the context of juridical performatives in “Declarations of Independence.” As Derrida notes, this title in French

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reserves a number of senses: Signéponge, when spoken aloud, can simultaneously be heard as “signed Ponge,” invoking the signature of the poet Frances Ponge, or this word can also be heard in the sense of a sign sponge: an entity that would sponge up or absorb signs. Derrida means to play upon this polysemy because the theme of his monograph on Ponge is what he takes to be the signature feature of Ponge’s oeuvre: throughout his poetic texts, Ponge, betraying a desire akin to the one we saw in Jefferson (and that also inspired Derrida in “Signature, Event, Context”), inscribes his own name—his signature—into his works, in what could be interpreted as a narcissistic desire to live on in these textual institutions. In order to evoke this theme of the signature in Ponge’s poetics, Derrida begins his lecture by citing the speech act “Francis Ponge,” which he notes can mean at least three things: (1) it can function as an interpellation—a call to the one named Francis Ponge (who was in attendance and present at this lecture at Cerisy); (2) it can serve as a deictic function—that is, it can designate the one who is Francis Ponge to others; (3) it can name, not the person Francis Ponge, but the name “Francis Ponge” qua name. As Derrida notes, Ponge’s name “can always do without him” (1984, 2) insofar as the word can be used in this sense. As Derrida goes on to explain, the reason for starting in this way is to call attention to the propensity of Ponge to remark upon himself—marking his own name in his texts. Derrida thus also begins this way, saying “Francis Ponge,” addressing himself to his subject matter, because this is the way Ponge characteristically speaks. Ponge, Derrida notes, is obsessed with naming things. In saying that Ponge “re-marks himself,” or gives a name to himself, he is in fact mimicking Ponge, who, for example, will say of a pine forest that it remarks itself: “Rise up, pine forest, rise up in speech. No one knows you. —Furnish your formula.— It is not for nothing that you have been remarked by F. Ponge…” (Derrida 1984, 6). For our purposes here, it is worth noting that Derrida identifies “three modalities of the signature” (1984, 52) as illuminated by Ponge’s poetics, and he provides a helpful expansion on the concept of signature that he had first developed in “Signature, Event, Context.” First, there is what Derrida refers to as “the signature in the proper sense,” which refers to an inscription of one’s proper name that serves to authenticate the identity of the one who signs. This would be the sense of “signature” as it has been described so far in “Signature, Event, Context.” Second, signature also refers to the “set of idiomatic marks that a signer might leave by accident or intention in his product” (1984, 54). Signature in this sense refers to

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singularity; this can be thought of as the style or “inimitable idiom of a writer, sculptor, painter, or orator.” The third modality of the signature that Derrida identifies is the “general signature, or signature of the signature,” which refers to the act of placing one’s signature within the text and such a signature identifying itself as such. Here Derrida is worth citing at length, because in speaking of the general signature, he makes an advance upon the theory of signatures—and thereby the social ontology—that we have observed to be latent in his engagement with speech act theory during this period: [the general signature is] the fold of the placement in abyss [mise en abyme] where, after the manner of the signature in the current sense, the work of writing designates, describes, and inscribes itself as act (action and archive), signs itself before the end by affording us the opportunity to read: I refer to myself, this is writing, I am writing, this is writing—which exclude nothing since, when the placement in abyss succeeds, and is thereby decomposed and produces an event, it is the other, the thing as other, that signs.

In order to evoke this concept of a signature of the signature, Derrida refers to the artistic practice of mise en abyme, or the act of inscribing a copy of an image within itself and the effect of creating an infinite reproduction of this image; what Derrida calls attention to about this placement of the signature is that the act of monumentalizing oneself within a work— whether a literary work or some other institution (and in this vein it is worth noting that Derrida goes on to say that signature-effects like this are in play “in revolutions” as well as literary works)—has the effect of making the self indexed by the signature into an other. What Derrida thinks is distinctive or signature about Ponge (“signature” in the second sense of the term) is that he appends his name (“signature” in the first sense of the term) within the body of his texts (“signature” in the sense of the general signature). What is signature about Ponge’s poetics is thus his deployment of his own signature and a kind of reflection on the narcissistic desire to reproduce the self: Ponge does not leave his signature outside the work— as convention dictates—but actually inserts his name into the body of the text, in an act that throws into relief the paradox that we observed above, according to which a signature always designates a singular entity, but can also always do without that entity. In this respect, Ponge’s poetics serves an exemplary function: it reveals the extent to which the singularity of subjectivity that a signature always marks can only become objective by

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becoming a thing. In this respect, Ponge’s poems dramatize the same fate to which Jefferson as drafter was subject in that they amplify the sense in which the sovereignty of the subject who signs is in some sense structurally divided from itself, doing without its source, functioning in the absence of that source. That is, this act that seems to have the effect of tethering this textual institution to a presence—named “F. Ponge”—has the effect of making that living presence into a thing in the poem. Derrida’s reflections here on Ponge’s literary works as textual institutions that refer back to their own constituted institutionality—inscribing or signing this institutionality in their merely finite, worldly, thingly character as poetry—is importantly not limited to his writings on Ponge alone, but was also elaborated into a more general theory of literature as an institution during the 1970s and 1980s. In this vein, “This Strange Institution Called Literature,” an interview with Derrida conducted by Derek Attridge in Acts of Literature, provides a helpful point of reference. There, Derrida, in attempting to clarify the nature of his interest in literary texts by Ponge, Kafka, Mallarmé, and Blanchot, provides a helpful set of coordinates for understanding this reflection on the literary institution. To begin with, it is important to note that, according to Derrida, while there are aesthetic phenomena of earlier ages that can partake in certain respects of literature, literature in the sense that interests him is an institution that is a historically specific possibility that only emerged with the modern notions of right [droit] and democracy. As Derrida notes, literature is not “a natural essence, an intrinsic property of a text,” but instead should be understood as the “correlative of an intentional relation to the text […] which integrates in itself, as a component or intentional layer, the more or less implicit consciousness of rules which are intentional or constitutional.” What rules does Derrida have in mind here? In specifying further, Derrida clarifies that a mark can be read as literary when it lends itself to being read as indexing the normative conventions that make it possible as a work, i.e., its own institutional conditions. In this respect, Derrida identifies literature qua institution in the democratic age as “the institution that allows one to say everything [tout dire]” (Derrida 1992, 36), not only in the sense that there is a tradition of protecting the literary work from the penalties of censorship, but also in the sense that literature in principle licenses itself to speak about the norms and conventions that guarantee it qua literature. In this respect, for Derrida, literature is not one institution among others, but an “institution that tends to overflow the institution.” In

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particular, what is exemplary about modern literature for Derrida is that as a historical phenomenon it bears the trace of a relationship to the law, and more specifically copyright law and all the norms that secure something like the possibility of an authorial signature and the title of a work as a designator of its unicity and status as property. As we are about to see, in the following section and over the course of the next chapter, for Derrida the institutions of literature and law share a common destiny—in that literature, like law, founds itself and inscribes its relationship to its own foundation within itself. Although he takes up this theme in his writings on Blanchot, Derrida articulates it perhaps most clearly in Préjugés: Before the Law, a presentation that he delivered at a 1982 Colloquium at Cerisy dedicated to the writings of Jean-Francois Lyotard. Notably, during Derrida’s lifetime, only the second part of this presentation was translated and made widely available in English, under the title “Before the Law”—a reference to the parable of Franz Kafka’s of the same name. Despite its fragmentary character, “Before the Law” was perhaps one of Derrida’s most influential pieces of writing during his lifetime, containing as it does one of his most suggestive accounts of the performative character of juridical utterances. For my purposes here, it will be particularly important, however, to locate “Before the Law” also in the context of Derrida’s presentation in Préjugés, to the extent that the reading of the juridical institution that Derrida derives from Kafka’s parable is just as much informed by the context of his engagement with the writings of Lyotard in the first section of this text. As we are about to see, Derrida’s reflections on Lyotard and Kafka all in fact center around the question of titles and entitlement—both the titles of works, such as Kafka’s, but also titles more generally in the sense of any status that is conferred by normative or juridical conventions. In fact, Derrida will attempt to read the example of the literary work and the juridical conventions through which every work is singled out as a work with a singular title as an occasion to reflect more broadly on the entitling function of institutions to confer statuses on people and things. Notably, the title of the conference at Cerisy, which preoccupies Derrida throughout this text, was Comment juger? (a partir du travail de Jean-­ Francois Lyotard). This title is notable because Derrida’s address begins by addressing itself to this title and its possible meanings in French, and also because the title—as a feature of literary institutions that is founded upon modern copyright law and thus as a site within every literary work that

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indexes the history of law—is the ultimate focus of this lecture. To begin with, Derrida notes, this title (comment juger/how to judge?) can be read as an apostrophe—as a question addressed to Lyotard, asking Lyotard how one might go about engaging in the practice of judgment. But the title can equally also be read as a question about the oeuvre of Lyotard—as a question about how one is to judge or interpret this singular set of works. As Derrida explains, the title of his own address, Préjugés, is ultimately meant to suggest that what is singular about Lyotard’s oeuvre is what it has to teach us about judgment and in particular the question of judgment in the context of juridical decisions. As Derrida notes, as a noun, préjugés can refer to the prejudices that a person might have about a topic. However, as Derrida also notes, the word can be read as an attribute (the state of being prejudged), and in this sense of préjugés, the word would refer to those who find themselves submitted to judgment by some legal authority. Moreover, he notes, the ‘pre’ can also refer to “an order that is prior to judgment—not only older (always older) than the judgment that is its origin, but (if it were possible) without any relationship to judicative authority in general” (Derrida 2018, 12–13). Finally, Derrida notes that another way to scan this title—comment juger?—is to understand it as addressing itself to certain préjugés about the practice of judging itself. Namely, to ask how to judge—how to go about judging—suggests one knows what judging as such is, and that because one knows what judging is one simply is asking about how to deploy it. According to this classical logic, the being of judgment would proceed its exercise. However, according to Derrida, it is also possible to read this phrase in a more paradoxical sense: namely, one can understand judgment to refer to an experience in which “the authority of the ousia [being], of the quod [why], or the quid [what], or of the ‘this is it’ with regard to the nature of judgment” is suspended. That is, in asking the question comment juger? one might be suggesting that judging is the sort of thing that requires one to not know in advance what one is doing with any kind of decidable certainty. As Derrida puts it, this title can have a “radically critical effect on the logic of the presupposition according to which we must know what it means to judge before asking the question ‘How to judge?’ To begin with the question ‘How?’ And not the question ‘What is?’ can imply that we suspend the classical prerogative of judgment, an ontological prerogative requiring that one first say or think the being, that one first of all affirm the essence, for example, of a function, before asking oneself how it functions” (2018, 13).

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In suggesting that one read the title in this fashion, in these opening pages Derrida indexes a theme that will come to define this and other later works: that judgment refers to an experience in which ontology is not fundamental. From the standpoint of this experience, what Derrida refers to here as the ontological prerogative, although seeming to constitute the basis of good sense, would itself be a kind of prejudice according to which judgment is an experience that must take a predicative and accessible form. In this vein, Derrida notes that the title comment juger? can also refer to a kind of anxiety or dread in the face of the question of how one is to go about judging when one lacks the principles to do so but is nevertheless bound to do so. This is what Derrida refers to as a double bind: a situation in which one has “the duty but not the right” (2018, 14) to judge.6 It is this that leads Derrida to also say that this predicament of judgment described by Lyotard also constituted the ‘signature’ of the postmodern epoch that Lyotard famously describes elsewhere: Jean-Francois Lyotard in effect says to us: look out, let me stop you there, there is a paradox, and this is the signature of the postmodern, judgment in fact does not found and is not founded, it is perhaps secondary but it is for that very reason that there is absolutely no question of doing away with it; and, if you think you can do away with it, it will nevertheless not leave you in peace anytime soon. You are pre-judged by it and, in relation to it, you inhabit pre-judgment. It is because judgment rests on nothing, does not present itself, and especially not with its philosophical titles, its criteria, and its reason, that is to say its identity card, that (paradoxically) judgment is ineluctable. (2018, 19–20)

Here Derrida offers a helpfully corrective counter-interpretation of the meaning of the postmodern—a term that, as he notes in this text, he normally eschewed, but that he avows as in some sense defining the horizon of his own thinking. Specifically, against the notion that the postmodern, 6  For Derrida, this predicament of judgment, in which one is obliged to judge in the absence of assured criteria for rendering judgments, is indeed the theme par excellence of Lyotard’s works, particularly in Au Juste. As Lyotard defines it in that text, citing Aristotle’s doctrine of prudence, one can only be just if one judges without any pre-given criteria for making the judgment. For Derrida, glossing Lyotard on the just man, this definition of justice as an experience of judgment in the absence of any given criteria, gives way to a certain paradox: namely, it defines absence of criteria, the absence of decidable laws and norms, as itself the law.

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as an era defined by the lack of shared and steady criteria for judgment, would imply a nihilistic forgetting of the normative question, Derrida insists that the lesson of Lyotard is that the postmodern condition is a condition of unconditional obligation. Namely, to the extent that one no longer has assured titles, criteria, and reasons for action, one finds oneself obliged to judge for the first time without a clean conscience. It is in the context of these preliminary remarks on Lyotard and judgment that Derrida proceeds to advance a reading of Kafka’s “Before the Law,” by reflecting on the scene of judgment that comes into play when one reads a literary work, such as Kafka’s parable, that is singular in the way that it relates to its own institution as a literary object. After citing the entirety of “Before the Law,” Derrida commences his reading of the scene of judgment in that parable, in which a man from the country presents himself allegorically “before the law,” seeking access to it in the face of a guardian barring his way. Rather than proceeding directly to the content of this text, however, Derrida engages in a kind of phenomenological analysis of this literary object by identifying a set of what he calls “axiomatic trivialities or presuppositions” (2018, 25) that are sedimented in our perception of this literary thing. For Derrida, these apparent axioms constitute “an initial consensus” that allows a community of readers of this text to discuss it. Derrida’s point, in other words, is that the interpretation of Kafka’s text appeals to something like “our commonality as subjects sharing, for the most part, in the same culture, and subscribing, within a given context, to the same system of conventions.” Although Derrida is ultimately skeptical about the obviousness of this context and system of conventions that govern reading—indeed, as we will see, he ultimately aims to undermine the obviousness of these institutional protocols of reading—he nevertheless finds that it is necessary to first identify them. As we will see, for Derrida, what is called for here is a kind of quasi-phenomenological reduction of Kafka’s text—a reduction that puts out of play the assumption that this text is literary in order to ask about the institutional conditions for the possibility of its literariness. The first presupposition that Derrida identifies in this vein is that “the text we have just read has its own identity, a singularity and a unity” (2018, 25). By this Derrida means to say that when we judge a literary work we tend to assume that we know its boundaries with a kind of obviousness: “we judge them, in advance, to be untouchable, even though, at the end of the day, the conditions of this self-identity, this singularity and this unity, remain enigmatic.” In what respect are the borders of a text—the

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boundaries that make of it a singular and distinguishable case—enigmatic? For Derrida, it is crucial first and foremost to note that these conditions are conventional and not natural—that the unicity of a work, for example, Kafka’s “Before the Law,” is founded upon a network of préjugés that can be identified. As Derrida notes, we tacitly have recourse to “a certain number of established criteria, that is to say established positive laws and conventions” in order to make these judgments. For example, we presuppose that the text that Derrida has just read out loud at Cerisy is a translation that refers to an original, German version that “constitutes the ultimate point of reference with regard to what might be called the juridic personality of the text, its identity, its unicity, its rights, etc.” (2018, 26). Derrida’s point, in other words, is that the legibility of Kafka’s text, which speaks about the law, is secured for us by a set of laws—in this case copyright law—that has a history. In this sense, as Derrida had already noted in describing the historicity of literary works and other cultural productions in “The Origin of Geometry,” the phenomenon of Kafka’s text is irreducibly historical, offering itself at first blush with a kind of self-evidence that is ultimately propped up on a singular history of conventions that can be interrogated and made explicit in turn. The second, seemingly obvious social fact that constitutes our apprehension of this literary object that Derrida reflects upon is that “this text has an author.” As Derrida notes, here as well, this conventional presupposition has a juridical basis: it is by virtue of the law that we are able to assume that the author of a published work—its signatory—corresponds to an actual person; according to this convention, in contrast to the fictional narrative, this signatory is non-fictional. Derrida’s point, in other words, is that although Kafka’s fable “Before the Law” has the law as its theme, this literary work also relies upon juridical conditions—laws—to be what it is. Therein lies the singularity of Kafka’s work: insofar as it tells of the law, it also tells of the literature that it is. Moreover, given the fact that the legibility of this work—in this case, the status of its author—is an effect of these juridical conditions that are themselves historical, our apprehension of the work is shot through with a historicity as well. Derrida identifies as a third axiom or institutional presupposition that governs our judging of “Before the Law” our belief that “there is narrative [il y a du récit]” and that this narrative “belongs to what we call literature” (2018, 27). According to Derrida, our ability to say that “Before the Law” is a properly literary récit—as opposed to some other récit—is also founded

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upon juridical conventions. In this vein, citing the example of his own imprisonment in Prague on accusation of drug trafficking, Derrida notes that it is possible for him to say that he “appeared before the law,” issuing a récit that apparently begins much in the same fashion as Kafka’s text, although we understand the former to be a non-fictional and the latter to be a fictive narrative. Derrida’s point, in other words, is that there is nothing about the lexical articulation of “Before the Law” that insures our credence that it is literature—that the phenomenon of literature rests upon a set of institutional conditions that we think we know by virtue of consensus. In this respect, in asking the question of how we know that “Before the Law” is literature, Derrida thinks that we find ourselves in a situation described by Lyotard’s problematic: namely, the situation in which a reliable criterion is lacking to judge the difference between literature and non-literature. Rather than treating this absence of criterion in identifying literature qua literature as a merely “aporetic conclusion” (2018, 28), Derrida makes the suggestion that this might be the defining trait of literature—that literature “has no essence, no domain that is properly literary and rigorously identifiable as such, and, finally, since the term ‘literature’ will forever remain improper, having no concept, no guaranteed reference, no criteria, that ‘literature’ would have something to do with the drama surrounding the name, the law of the name, and the name of the law” (2018, 28–29). The reason that Kafka’s parable interests Derrida here is that this text, in its narration, thus seems to narrate the predicament of its own possibility. Finally, the last conventional presupposition that Derrida makes explicit—and this convention, as it becomes clear, is perhaps the most significant to him—is the notion that “Before the Law” is a title of a narrative. As Derrida notes, it is by virtue of convention that we are able to identify where the title of a work is—namely, by virtue of its location in a certain space on the page, coming before the narrative. What distinguishes the title, though, as a feature of the work, is once again its relationship to the law: the title functions as a name for a singular work, identifying its bounds and singling it out for ownership. What interests Derrida in particular about Kafka’s title is that, once again, this work reflects upon its own relationship to the law: a work titled “Before the Law” is significant insofar as the title of this work—certified as title by a set of historically sedimented juridical conventions—can be read as a commentary on titles as such, as if “the law were giving a title to itself or as though the word

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‘title’ were introducing itself insidiously into the title” (2018, 31). What interests Derrida in particular is how our conventional understanding of a title—our capacity to identify a title as title—is not bound up so much with words as their placement, or a certain topology. This is illustrated by the fact that the words composing the title of Kafka’s parable, “Before the Law,” are also the same words as the first words of its narrative; namely, it is only by virtue of the placement of these words that one is able to identify one set as title and another as the beginning of the narrative. Having addressed these four conventional presuppositions that govern one’s judgment of “Before the Law,” Derrida turns again to Lyotard’s philosophy to introduce the theme that will guide him in his reading of Kafka’s work. For Derrida, the account of the law articulated by Lyotard needs to be read in conversation with Kant’s account of the moral law— and in fact it is by virtue of a comparison with Kant that Derrida unfolds his reading of the institution of law that he finds in Kafka. What Derrida is interested in here is “the strange status of the example, the symbol, and the type in Kantian doctrine” (2018, 33). Namely, Derrida has in mind here Kant’s account of goodness as something that is only accessible indirectly—that moral goodness cannot be present in itself but can only be symbolically represented, that the attitude of respect that characterizes moral experiences is never directed directly to things or people except insofar as things or people are an example of the moral law. In this vein, Derrida is also particularly interested in the quasi-historical structure of the second formulation of the categorical imperative—“Act as though the maxim of your action were to become by your will a universal law of nature”—for he sees in this formulation of the imperative an implicit representation of some kind of historical unfolding through which a maxim would be constituted. For Derrida, there is a paradox here because for Kant the moral law seems to be utterly ahistorical and historical in the same breath: “Precisely when the authority of the law seems to exclude any historicity and any empirical narrativity, at the moment when its rationality seems alien to fiction and imagination of any kind (even the transcendental imagination), it seems a priori to still offer its hospitality to these parasites” (2018, 34). For Derrida, it is ultimately this recourse that Kant’s account of the moral law makes to the notion of a narrative and historical unfolding that makes it communicate with Kafka’s narrative in “Before the Law.” And this is what leads to Derrida’s central question of this essay: “What if law, even if it is not through and through literature,

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shared its conditions of possibility with the literary thing [la chose littéraire]?” (2018, 35). As Derrida notes, for the Kantian tradition that has described the moral law, this possibility that law and literature would share a common destiny is foreclosed to the extent that the moral law cannot be reduced to any story about its empirical genesis or history. That is, law would be that thing that “should never give rise to any narrative” and “have no history, no genesis, no derivation whatever,” insofar as in order for the moral law to be pure in Kant’s sense it cannot be empirical. Under this view, any story or narrative that would speak about the law would always be extrinsic to it. In this respect, those who would attempt to think the law are not unlike the man in Kafka’s parable who attempt to approach it. As Derrida puts it, to be addressed by the law is to be “fascinated, provoked by the history of this nonhistory” (2018, 36). It is in these Kantian terms that Derrida interprets the scene that plays out between the man from the country and the guardian of the law. The element of the fable that draws Derrida’s particular attention at this point is the fact that the man from the country is permitted to enter the law by the guardian, but ultimately prohibits himself from entering. In other words, no physical force in fact intercedes to separate him from the law except for his own reaction to the guardian. As Derrida points out, this scene in which the law is a kind of “interdicted space” (2018, 51) mirrors the depiction of the moral law as it is described by Kant: “in order to have some rapport with the law based on respect, one must not, one must not have any rapport with it, the relationship must be interrupted. We must establish a relationship only with its representatives, its example, its guardians. And these are interrupters just as much as messengers” (2018, 52). It is in this respect that Derrida will say that the law is “neither natural nor institutional” (2018, 53). The law is a nothing—a secret—that must be guarded in its nullity. In order to capture this peculiar status of the law, Derrida will say, in language that avoids the verb to be, that “what we have is the law, the law that is not there but that there is [qui n’est pa la mais qu’il y a]” (2018, 54). This formulation is no accident, insofar as for Derrida the lesson of Kafka’s fable is that the moral law is non-ontologizable: “[…] the law has no essence. It escapes from that essence of being that would consist in presence. Its ‘truth’ is that nontruth, of which Heidegger says that it is the truth about truth” (2018, 55). It is in this respect that Derrida comes to conceive of the law, as it is articulated in Kafka’s parable as an address that is prior to responsibility: the law is what sets in motion a scene—the scene of the guardian and the man.

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And it is in its invocation of that which is without essence—the law— that the literariness of “Before the Law” begins. As Derrida notes, in other theoretical discourses (philosophy, science, history, etc.) one would never give “a name to nonknowledge” (2018, 56) as occurs here, “or at least would do so only by accident and not in an essential or constitutive way” (2018, 56–7). What interests Derrida about what literature might have to say about law, in other words, is what might be referred to as its aporetical “foundation”: it is literature—in this case, the experience of Kafka’s “Before the Law”—that can conjure the sense in which our relationship to law is not founded, at least in its origin, upon knowledge, even positive knowledge about various laws. Derrida’s point, in other words, is that Kafka’s parable is as much about the law as it is about itself as a literary institution. Our predicament as readers of “Before the Law” is the predicament of the man from the country described in “Before the Law”: this text, according to Derrida, is unreadable or impenetrable in the sense that we find ourselves in a situation in which we do not have access “to its proper sense, to the possibly inconsistent content that it keeps jealously in reserve. The text guards itself, like the law. It speaks only of itself, but then only of its nonidentity with itself […] It is the law; it makes the law and leaves the reader before the law” (2018, 62–3). In what sense? Derrida’s point here is that Kafka’s “Before the Law” presents “no identifiable content beyond the narrative itself,” not unlike the portal before which the man from the country finds himself. In this sense, the text is “that which we do not have the right to touch” insofar as its form “presents and performs itself as a sort of personal identity that has a right to absolute respect.” As Derrida notes, those same juridical presuppositions or conventional axioms invoked before ensure the identity of this text, such that the status of this text, this identity is not “natural, but is rather the result of a legal performative” (2018, 64). As Derrida will describe this performative: “In effect, the text (for example, what we call a ‘literary’ text, particularly this narrative by Kafka) before which we, the readers, appear as before the law, this text, guarded by its guardians (author, publisher, critics, academics, archivists, librarians, lawyers, etc.) can legislate only if a system of more powerful law (“A more powerful doorkeeper”) guarantees it, beginning with the ensemble of laws or social conventions that authorize all these legitimacies” (2018, 68). What is peculiar about Kafka’s text though is that it has an “evidently autoreferential form”: as literature, it does not simply rest upon the conventions that make it possible qua literary object, but in a certain sense reflects upon them in the form of its narrative.

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All of this to say, by way of conclusion, that Derrida identifies in the poetics of Ponge and this fable of Kafka’s, exemplary cases of social texts that inscribe a relationship to their own institutionalization. And insofar as these works themselves presuppose a standing set of performative juridical acts—acts that established conventions surrounding titles, authors, signatures, etc.—they are exemplary to the extent that they bear a reflexive relationship to those conventions. In other words, these works stage a relationship to their own historicity: what distinguishes literature as an institution here is that rather than underwriting itself with the divine seal of God (a la Jefferson), it has no pretense other than to reflect upon its own groundless ground. However, if in these texts from the 1970s and 1980s it is true that Derrida has begun to develop a reflection on the historicity of the right and rights that make something like the literary institution possible, it also needs to be said that in these works he has not yet engaged substantively with this historical tradition. That is, if by this time Derrida has developed a social ontology as well as a formal account of the performative constitution of the entitlements established by institutions, he has yet to articulate, at least at this point, the sense in which these reflections might be substantively normative. As we are about to see, in turning to Derrida’s writings from 1989 and onward, Derrida will gather together the battery of concepts from his earlier writings on institutions that we have reconstructed in Chap. 2 and this chapter—historicity, declaration, signature, and title— in order to develop a reflection on the violences and rights authorized by juridical institutions.

References Bennington, Geoffrey. 1993. The Signature. In Jacques Derrida. Trans. Geoffrey Bennington. Chicago: The University of Chicago Press. Derrida, Jacques. 1976. Of Grammatology. Trans. Gayatri Chakravorty Spivak. Baltimore: Johns Hopkins University Press. ———. 1981. Implications: Interview with Henri Ronse. In Positions. Trans. Alan Bass. Chicago: University of Chicago Press. ———. 1982. Signature Event Context. In Margins of Philosophy. Trans. Alan Bass. Chicago: University of Chicago Press. ———. 1984. Signéponge-Signsponge. Trans. Richard Rand. New York: Columbia University Press.

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———. 1988. Limited Inc. Trans. Samuel Weber. Evanston: Northwestern University Press. ———. 1992. ‘This Strange Institution Called Literature’: An Interview with Jacques Derrida. In Acts of Literature, ed. Derek Attridge, 33–75. New York: Routledge. ———. 2002a. Privilege: Justificatory Title and Introductory Remarks. In Who’s Afraid of Philosophy? Right to Philosophy 1, 1–66. Trans. Jan Plug. Stanford: Stanford University Press. ———. 2002b. Declarations of Independence. In Negotiations: Interventions and Interviews 1971–2001, 46–54. Trans. Tom Keenan, and Tom Pepper. Stanford: Stanford University Press. ———. 2007. Psyche: Invention of the Other. In Psyche: Inventions of the Other, ed. Page Kamuf and Elizabeth Rottenberg, 1–47. Stanford: Stanford University Press. ———. 2011. Voice and Phenomenon: Introduction to the Problem of the Sign in Husserl’s Phenomenology. Trans. Leonard Lawlor. Evanston: Northwestern University Press. ———. 2018. Before the Law: The Complete Text of Préjugés. Trans. Sandra van Reenen, and Jacques de Ville. Minneapolis: University of Minnesota Press. Moati, Raoul. 2014. Derrida/Searle: Deconstruction and Ordinary Language. New York: Columbia University Press. Searle, John. 1968. Austin on Loctutionary and Illocutionary Acts. The Philosophical Review 77(4): 405–424. Durham: Duke University Press. ———. 1975. A Taxonomy of Linguistic Acts. In Language, Mind, and Knowledge. Minneapolis: University of Minnesota Press. ———. 2009. Making the Social World: The Structure of Human Civilization. New York: Oxford University Press.

CHAPTER 4

Of Force & Right: Questions of Responsibility in the Later Derrida (1989–2004)

4.1   On Ethical and Political “Turns”: Reframing the Normative Question as an Institutional Question for “Derrida Studies” Nothing seems to me less outdated than the classical emancipatory ideal. (Derrida 2002a, 258)

The third chapter of Rogues: Two Essays on Reason, one of the last works that Derrida published during his lifetime in 2003, includes another one of those parenthetical asides characteristic of his later work—not unlike those we observed in Specters of Marx and Right to Philosophy in previous chapters—in which Derrida attempts to situate the present argument of his text in relation to a certain self-interpretation of his own philosophical development. As with those two previous cases that we observed in the preceding chapters, the context for this parenthesis is important to consider and will put us in a position to comprehend Derrida’s reflection on institutions during this last period of his oeuvre. In particular, as we are about to see, Derrida provides here a touchstone for connecting his reflections on institutions to substantively normative questions of justice and right. In this particular chapter of Rogues, “The Other of Democracy, the ‘By Turns’: Alternative and Alternation,” Derrida turns to Aristotle’s concept of “the turn” [kata meros, translated into French as le tour]—the turn-taking or alternation characteristic of rule in a democracy as it is © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 R. A. Gustafson, Derrida’s Social Ontology, https://doi.org/10.1007/978-3-031-41494-7_4

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described in the Politics—in order to consider the suggestion of a purported ethical or political turn in his own work. As Derrida traces, according to Aristotle, democracy is essentially defined as a form of governance by the fact that, in it, the location of sovereign power always alternates between ruler and ruled over time by turn-taking: Now, democracy would be precisely this, a force (kratos), a force in the form of a sovereign authority (sovereign, that is, kurios or kuros, having the power to decide, to be decisive, to prevail, to have reason over or win out over [avoir raison de] and to give the force of law, kuroo), and thus the power and ipseity of the people (demos). This sovereignty is circularity, indeed a sphericity. Sovereignty is round; it is a rounding off. This circular or spherical rotation, the turn of the return upon the self, can take either the alternating form of the by turns, the in turn, the each in turn (we will see this in Plato and Aristotle in a moment) or else the form of an identity between the origin and the conclusion, the cause and the end or aim, the driving [motrice] cause and final cause. (Derrida 2005, 13)

Here, in language that recalls the analysis of the sovereignty of the people that he had developed in “Declarations of Independence,” Derrida speaks of a certain circularity that characterizes democracy as a form of governance. As Derrida explains, going on to cite Tocqueville’s analysis in Democracy in America, there is circularity to democracy because the people or a society in a democracy is “‘the cause and the end of all things; everything rises out of it and is absorbed back into it […]’ ‘The people,’ he [Tocqueville] concludes, ‘reign over the American political world as God rules over the universe. It is the cause and the end of all things; everything rises out of it and is absorbed back into it” (2005, 14). For Derrida, this reference by Tocqueville to God—and, in particular, the analogy that Tocqueville posits between the people and divine principle or mover—is not accidental. Specifically, what interests Derrida here is the historical tie that has linked the concept of sovereignty in political philosophy to a certain theological metaphysics. And what interests Derrida in Rogues is the possibility of deconstructing this link, not in the name of a kind of anarchy, but instead for the sake of affirming a different form of democratic social and political life. That is, rather than conceiving of democracy—and thereby of democratic institutions—as being ruled by the “democratic God of which Tocqueville speaks, this sovereign cause of itself and end for

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itself, [which] would also resemble […] pure Actuality, the energeia of Aristotle’s Prime Mover” (2005, 15), Derrida points to another possibility within the conceptual genealogy of democracy: the link that has been posited, since Plato and Aristotle, between the democratic individual and a certain license, liberty, or roguishness (eleutheria). So understood, what characterizes democracy is a peculiar concept of freedom that Derrida argues—again citing Aristotle from the Politics—is crossed paradoxically with a certain conception of equality. Specifically, the necessity of reconciling the freedom of the singular individual and the equality of the people is what leads one to think rule in a democracy, not in terms of the sovereign return to self of Aristotle’s prime mover, but instead a turn-taking that requires of every citizen a periodic relinquishment of the drive to be sovereign: But one factor of freedom is to govern and be governed in turn [eleutherias de hen men to en merei arkhesthai kai urchin]; for the popular [that is, democratic] principle of justice [to dikaion to demotikon] is to have equality according to number, or worth [kat’arithmon alla me kat’axian], and if this is the principle of justice prevailing, the multitude must of necessity be sovereign [kurion] and the decision of the majority must be final and must constitute justice. […] This then is one mark of freedom which all democrats set down as a principle [horon: rule, limit] of the constitution. And one is for a man to live as he likes [hen de to zen hos bouletai] … and from it has come the claim not to be governed, preferably not by anybody, or failing that, to govern and be governed in turns [kata meros] […] and this is the way in which the second principle contributes to freedom founded upon equality. (Derrida 2005, 23–24)

In his reading of this passage in the Politics, Derrida advances the remarkable and suggestive claim that even before the concepts that compose the concept of democracy—demos and kratos—can be determined, the concept of turns [kata meros] will determine whatever one has to say about them. Specifically, his claim is that for the principles of freedom and equality to be co-equal presupposes turn-taking vis-à-vis sovereign power: in contrast to an absolute freedom sundered from the idea of equality, and in contrast to an absolute equality that would deny the singularity of finite individuals, Derrida contends that democracy calls for an incessant calculation of these competing values. It is in this respect that Derrida will argue that democracy is only possible if it is impossible—that is, only possible if it does not foreclose the chance of its own transformation when faced with

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this requirement to calculate between these two competing principles. And this is what leads Derrida to insist on “the semantic vacancy or indetermination at the very center of the concept of democracy that makes its history turn” (2005, 24)—his claim that because of its intrinsically historical character democracy requires something like a radical openness to the future. Namely, for Derrida, there is what he calls “an essential historicity of democracy, of the concept and the lexicon of democracy (the only name of a regime, or quasi regime, open to its own historical transformation, to taking up its intrinsic plasticity and its interminable self-criticizability, one might even say its interminable analysis)” (2005, 25). Indeed, if deconstruction has a preference for the democratic it is because the latter shares this theme—historicity—that I have tried to suggest over the course of this study has been the theme of deconstruction dating back to Derrida’s initial usage of this term. But for Derrida, this essential indetermination of the concept of democracy that is the chance of any democracy—this historicity of democracy as a finite and worldly tradition—is also in an important respect equiprimordially the threat of non-democracy. As he attests to in commenting on the suspension of democratic elections in his native Algeria—a suspension of elections that was undertaken in the name of saving democracy from a popular religious take-over—for Derrida, in this respect, democracy is autoimmune: the only way to make democracy safe and sound—the only way to assure democracy of existing infinitely as democracy—is to undertake the anti-democratic measure of ejecting anti-democratic elements from the demos. It is in this respect that democracy for Derrida cannot be said to index a positive or actual constitution, but instead a peculiar kind of political experience: the “undeniable, experience of the alterity of the other, of heterogeneity, of the singular, the not-same, the different, the dissymmetric, the heteronomous”—an experience that Derrida connects to his earlier concept of différance. It is in speaking of this differential character of democracy that Derrida is led to highlight not only the risks but also the chances of its historical character and in particular the fact that the rights of democracy have undergone a historical transformation; citing the extension of voting rights, the freedom of the press, and calls for the end of social inequality, Derrida notes that the meaning of these rights deemed concomitant with the democratic way of life has been historically transformed and could not have been predicted in advance. It is in this respect, says Derrida, that democracy is always located “at the unstable and unlocatable border between law and justice, that is between, the

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political and the ultrapolitical” (2005, 39). In other words, from Derrida’s standpoint the institutions of democracy and the rights that those institutions safeguard are subject to a radical historical critique to the extent that they bear within themselves a relation to a contingent origin that can always be summoned and subject to a critical glance. And it is in speaking about this turn-taking and intrinsic historicity of democracy, of deconstruction and the political, that Derrida turns in an aside to his readers to engage in that moment of self-interpretation that I mentioned above, addressing himself to a certain narrative about a “turn” that has been alleged to have taken place in his own thinking in recent years: I recall this in passing, with a quick turn of hand, in an algebraic and telegraphic fashion, simply to recall that there never was in the 1980s or 1990s, as has sometimes been claimed, a political turn or ethical turn in “deconstruction,” at least not as I experience it. The thinking of the political has always been a thinking of différance and the thinking of différance always a thinking of the political, of the contour and limits of the political, especially around the enigma or the autoimmune double bind of the democratic. That is not to say, indeed quite the contrary, that nothing new happens between, say, 1965 and 1990 [italics mine]. But what happens remains without relation or resemblance to what the figure that I continue to privilege here might lead one to imagine, that is, the figure of a ‘turn,’ of a Kehre or turning. (2005, 39)

Here, on the one hand, Derrida, having insisted in these initial sections of Rogues on an affinity between this concept of “democracy to come” and différance, holds that the thinking of différance has always been a thinking of the political. On the other hand, he also holds that this is not to say that nothing “new” happens between 1965 and 1990 with deconstruction. That is, Derrida wants to say that it would be wrong to think that there is an ethical or political “turn” in deconstruction—if by this figure one means the kind of turn or Kehre that has been ascribed say to Heidegger— but also that it would be wrong to say that there haven’t been certain events or unexpected happenings to the project of deconstruction. This passage of course raises questions and one cannot help but detect a certain note of defensiveness in Derrida’s statement here. For one might be tempted to ask why Derrida, in 2003, on the one hand insists that there was no ethical or political turn in deconstruction, while on the other hand singling out a year—1990—in admitting that it would nevertheless be

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wrong to say that nothing new has happened with deconstruction since then. Why 1990? Here I would suggest that it is worthwhile to take instruction from the record of Derrida’s teaching practice, and in particular the fact that from 1989 to 2003 Derrida adopted a new title—“Questions of Responsibility”— to label the itinerary of his teaching seminars during these years, which we now know formed the basis for many if not most of the essays and books that were published during this period. In the “Questions of Responsibility” series, which, as of the writing of this book has only been partially published and translated into English, Derrida undertook a systematic reading of the fundamental ethico-political concepts of the Western juridical tradition—concepts like hostility, hospitality, perjury, pardon, forgiveness, and punishment—from a deconstructive point of view. Moreover, beyond these seminars, around the period of 1989–1990 Derrida also published a series of essay collections—the passages that we have already looked at in Right to Philosophy are exemplary in this regard—that included at their head introductions that sought to characterize the development of deconstruction with an explicit eye toward the ethical, the political, and the juridical. Here I would like to argue that in saying that something new happens in 1990 with respect to deconstruction that Derrida has in mind this project of these seminars and that in declining to call this an ethical or political turn he wants to insist that the project of “Questions of Responsibility” is continuous in some sense with the deconstructive problematic of 1965 that we saw first come onto the scene in his reflections on the problem of historicity in Husserl and Heidegger. If I am right, this implies the need to reframe the questions of normativity—of the ethical, the political, and the juridical—posed by Derrida’s later philosophy, not in terms of their contribution to a moral philosophy, but instead a philosophical theory concerning the historical character of social and political institutions. If I am right, in other words, we should read Derrida not so much as modifying or complicating the modern moral philosophy of the Kantian categorical imperative as he is complicating and offering a rewriting of the Kantian Doctrine of Right. That is, we should see Derrida as a normative thinker not engaged in a practice of pure logic (and its deconstruction), but rather as a normative thinker to the extent that he was engaged in a deconstruction of a concrete and historically specific philosophical tradition’s concepts for thinking right and rights. The aim of the present chapter is in part simply to consider what it would mean to take this self-interpretation of Derrida’s philosophy

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seriously—a task that I want to suggest has been avoided or not pursued systematically by some of the more prominent strains of scholarship that have come to prevail in the recent reception of his work. For if the reception of Derrida’s project in the 1980s and 1990 was marked by a variety of attempts to take seriously the substantive ethical and political consequences of deconstruction—and to make a case for deconstruction on ethical and political grounds—in recent years, some of Derrida’s readers have come to identify this project as normatively neutral and have by and large ignored Derrida’s own avowal that, although his project is continuous, nevertheless, from about 1989 to 1990 and onward that project comes to take shape as a reflection on the ambivalent legacy of a certain emancipatory tradition that has taken the question of rights and their institutionalization as an ethical and political focus. Martin Hägglund’s Radical Atheism is exemplary in this regard and is an important point of reference to consider here given the extent to which this book has framed much of the recent debates concerning the normative stakes of Derrida’s project. Insisting on the “ontological status” (Hägglund 2008, 3) of Derrida’s program, Hägglund has argued that there is an “ultra-transcendental argument” concerning the constitution of time—and therefore, temporal forms of life—that subtends all of Derrida’s writings from beginning to end. In particular, Hägglund— writing against what he considers to be the problematic appropriation of Derrida’s work by negative theologians—attempts to extract what he calls a “radically atheist logic” (2008, 11) from this ultra-transcendental argument. Such a logic stipulates that extra-temporal—i.e., religious—forms of desire and valuation are immanently incoherent, insofar as such forms of desire and valuation misrecognize—in their attempt to transcend—the finite temporality that is the condition of their desiring and valuing in the first place. According to Hägglund, this radically atheistic logic constitutes the spine of Derrida’s corpus. Thus the aim of Radical Atheism: to “fortify” (2008, 19)—by formalizing—such a logic. As such, in adopting what he refers to as an “analytical” (as opposed to an “exegetical”) approach to reading Derrida, Hägglund is led to justify excluding certain elements of Derrida’s work from his consideration. Acknowledging that there may be elements in Derrida’s writings that do not “adhere to […] radically atheist logic,” Hägglund thus insists that such anomalies be dismissed as irrelevant, unless they can be shown in fact to constitute a logic of their own: “Like everyone else, Derrida was liable to be inconsistent. However, in order to turn these inconsistencies into an argument against the logic of

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radical atheism that I establish, one has to show that they are not in fact inconsistencies but rather testify to the operation in Derrida of a different logic altogether” (2008, 12). The upshot of Hägglund’s argument is that one should treat any element in Derrida’s oeuvre that doesn’t strictly cohere with radically atheist logic—and here I think Hägglund must be referring to Derrida’s analyses of religious and ethical forms of experience that are not thoroughgoingly critical of them—as mere accidents. Granting that Hägglund is undoubtedly right that Derrida did not intend to do negative theology, and indeed Hägglund’s book helpfully criticizes some of the less plausible applications of Derrida’s thinking to religious or ethical ends, what concerns me here is the implications of reading Derrida’s philosophy as reducible, as a whole, to the repeated enactment of a “logical” or “ultra-transcendental” argument. For even recent defenders of the normative impulse of deconstruction seem still committed to this thesis of Hägglund’s reading: that deconstruction entails no substantive normative commitments. In this vein, the case of Stella Gaon’s recent book The Lucid Vigil: Deconstruction, Desire, and the Politics of Critique is telling.1 The Lucid Vigil puts forward a compelling and novel argument that the ethics and politics of deconstruction are in fact rooted in Derrida’s inheritance of a specifically Kantian tradition of critique. Gaon argues that Derrida shows that there is a strictly logical and immanent instability that haunts any attempt to justify an emancipatory critical theory—and that attending to this instability itself answers to a normative impulse that is quasi-ethical. Namely, to the extent that any critical theory subscribes to the principle of reason (as it indeed must qua theory, Gaon argues), it will only be able to establish the criteria for critique by appealing to its own ungrounded and ultimately ideological authority. But rather than identifying this structural impasse of reason in its critical function with a nihilistic deflation of the demand for normativity, as Derrida’s critics have alleged it does, Gaon instead argues that reckoning with it “marks the inevitable unfolding of the modern promise of reason” (Gaon 2019, 1). In contrast with those who have sought to supplement Derridean deconstruction with a substantive ethico-political program, Gaon argues for a more formal and minimal account of deconstruction’s normative force. According to Gaon, it is merely in virtue of the fact that 1  The following paragraphs draw substantially from my review of Gaon’s book in Derrida Today (Gustafson 2021). A more detailed engagement with Gaon’s work can be found there.

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deconstruction “puts into question the modern philosophical assumption that a rational justification of political ends is possible in the first place” (2019, 5) that deconstruction is ethical and political. Gaon’s suggestion in this regard is that it is only this “‘negative’ work” (2019, 7) of exposing the precarious validity of normative principles that is the contribution of deconstruction to a critical political theory. In this vein, Gaon suggests that the central question posed by Derrida’s project is: “[W]hat are the political implications of the thesis ‘that no responsibility could ever be taken without equivocation and without contradiction? Or that the self-­ justification of a decision is impossible, and could not, a priori and for structural reasons, be absolutely answerable for itself?’” According to Gaon, this question calls into question the “core of the Kantian idea of Enlightenment,” which maintains that “a legitimate standard of ethical-­ political judgment is something we can teach because it is something we can know” (2019, 10). And in posing this question of justification about the Kantian project of justification, Gaon maintains that Derrida is doing no less than radicalizing that very project, even if he appears to be undermining it. In insisting on this more sparing notion of the normative force of deconstruction, Gaon is led to pose what may be the pivotal question of The Lucid Vigil: “On what grounds, then, can deconstruction be ‘translated’ as a form of normative ideology critique?” (2019, 195) Maintaining that “Derrida does not answer this question directly, nor does he provide resources with which to do so,” Gaon nevertheless notes that in texts like Specters of Marx Derrida does affirm a generalized commitment to the ethics of the “spirit of Enlightenment.” On Gaon’s reading it thus “becomes apparent that the notion of ‘justice as aporia’ as Derrida understands it is ultimately another name for reason in its critical, its normative and emphatic sense” (2019, 197). Rather than taking the normativity of such a reason in its deconstructive moment as given, Gaon maintains that, if one is consistent with deconstructive logic, one would still have to ask about Derrida’s affirmation of this spirit of the Enlightenment in the first place: “The question at hand is why we are bound to such a spirit at all. Why do we feel, if we do, why do we experience ourselves, if we do, as impelled—in the emphatic or ethical sense of that word—to honour reason?” Gaon is undoubtedly right that this question about the normative justification of the Enlightenment project of normative justification is a preoccupation internal to Derrida’s project, but because Gaon insists on the

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wholly formal or logical character of deconstruction’s normative impulse she is led in the final chapters of her book to move to a psychological register in her analysis of this normative impulse—to supplement deconstructive logic with psychological facts. Turning to psychoanalytic theory, and in particular the reformulation of Freudian metapsychology found in the writings of Jean Laplanche, Gaon argues that if Derrida shows how the demand for a rational legitimation of norms is logically impossible, nevertheless, the demand for reason of which deconstruction is a species is nonetheless intelligible and justifiable as a psychological desire: “the desire for an unrelenting, lucid vigilance with regard to the (impossible) conditions of critical reason itself” (2019, 12). The obligation to which deconstruction is a response, Gaon argues, can best be understood as “a drive (Trieb, in the psychoanalytic sense), and not a rational principle at all” (2019, 13). As Gaon puts it, deconstructive readings are in this sense “driven by an unconscious (ultimately non-natural) attachment to rationality—that is, by a psychological investment in the principle of reason that remains opaque to consciousness” (2019, 13). And this is in some sense the decisive move of Gaon’s book. For if the argument of The Lucid Vigil has been persuasive up until this point, then it follows that no strictly logical, non-ideological justification for this commitment to deconstruction qua reason is to be had. And it is this recognition that leads Gaon to shift registers to suggest that if it is impossible to rationally deduce this commitment to reason of which deconstruction is a species we ought to instead “think the desire for reason, historically, socially, politically.” Shifting to “this problematic of socially-constituted desire,” Gaon suggests, offers the most plausible path for understanding the sense in which the desire to deconstruct could be ethical. Identifying this desire to engage in a critique of critique that is characteristic of deconstruction with a “limited normative force,” Gaon thus proceeds to advocate for giving a “socially, politically and historically contextual explanation” (2019, 201) of the form of deconstructive subjectivity that asks about the reason of reason. Agreeing with Hägglund that “no prescriptions can be derived from the logic of deconstruction,” Gaon follows other recent critics of Radical Atheism that quarrel with its claim that “no ‘intrinsic normativity’ can be associated with deconstruction at all,” highlighting the need to distinguish between prescription and normativity. Namely, averring that Hägglund is right to say that prescriptions are not entailed by a logic of deconstruction and that deconstruction “is not substantively normative

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either” (2019, 249), Gaon nevertheless maintains that one can observe at work in this very logical procedure “a quasi-normative impulse, a desire, to deconstruct.” It is perhaps worth noting that such a maneuver—namely, that of shifting from a purely rational deduction of normativity to a psychological description of a socially and historically contingent normative impulse that entails no substantive normative content—might be disappointing for the critical theorists with which Gaon is engaged, but also for readers of Derrida. In particular, one could raise a question about Gaon’s assertion that Derrida himself never provided any resources for how deconstruction could be translated as a form of normative critique and that deconstruction is never substantively normative. For, as we are about to see in this chapter, it would seem to be important here to reckon with the fact that Derrida, precisely in the name of deconstruction, did in fact undertake substantive normative interventions in the face of what he did not hesitate to call cruelty and injustice. In a word, it seems to me that Hägglund—and the modification of Hägglund’s account of normativity found in Gaon’s text—would have been right if it were not for the fact that something new does indeed happen between 1965 and 1990 with deconstruction, even if Derrida himself only gives a kind of tortured admission of this fact in asides like those we have just observed in Rogues.2 Here I want to suggest that in order to make sense of those substantively normative moments in Derrida’s oeuvre, in those places where Derrida makes clear that his philosophical practice is answerable to responsibilities other than those posed by the principle of reason, it would be important to pursue further Gaon’s insight in her conclusion that “something more than mere logic” (2019, 248) is at stake in deconstruction. For if Derrida himself resisted the notion that deconstruction was a methodical logical procedure, undertaken from some Archimedean point, it is perhaps worth underscoring that this is in large part because Derrida’s 2  As Haddad observes in his critique of Hägglund in Derrida and the Inheritance of Democracy, the terms with which Derrida addresses social and political questions are shot through with a historicity that weds this language to substantive normative commitments that cannot be neatly disentangled: “Derrida cannot avoid the performative dimension of evaluation in his deconstructive analyses, since the language with which he must necessarily engage is already infused with value in a sedimented history” (Haddad 2013, 96). Haddad locates this saturation of the normative within Derrida’s discourse principally at the level of language, citing an “inevitable inheritance of language” (99) that entails substantive value commitments from which one cannot disentangle a purely descriptive deconstructive procedure.

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inheritance of the Enlightenment was one that passed, not directly from Kant, but as we saw in Chap. 2, by way of Husserl and Heidegger, for whom it was a necessity to understand the philosophical project of reason as irreducibly historical—the task of a finite and worldly discursive tradition. What I want to argue in what follows is a departure from this logicizing tendency in the recent reception of Derrida’s oeuvre in order to consider how, particularly from his writings in the late 1980s onward, Derrida took deconstruction in some sense to be the articulation of a philosophy of right—a critique of institutions—that does have substantive normative implications. Following Derrida’s suggestion that this is not so much a turn or a break in his thought, what I want to suggest is at work in those “Questions of Responsibility” that Derrida poses from 1990 onward is a deployment of the reflections on historicity that first animated his earliest writings (as we saw in Chap. 2) and that are implicit in his initial texts on institutions from the 1970s through the 1980s (as we saw in Chap. 3). Recalling the passage from Rogues with which I began this chapter: if there is a change or transformation in Derrida’s thinking between 1965 and 1990 it is ultimately that around 1990 Derrida explicitly ties his reflections on the declaration, the signature, and the title—his theory of institutions—to a certain notion of justice. As we will see, the theory of institutions that had been burgeoning in Derrida’s writings in the 1970s and 1980s ultimately crystallizes in the form of a new definition of deconstruction and a re-affirmation of deconstruction as an institutional practice. It is ultimately by recalling the theme of historicity—the theme of his earliest works—that Derrida articulates a new notion of justice and an account of its institutional conditions. This critical reflection on institutions is the “more than mere logic” that seems to me missed by some recent appraisals of Derrida’s philosophy and that the previous chapters of this book have put us in a position to interpret. Divided into two main sections, the chapter proceeds by first giving a reading of the text (“The Force of Law: The Mystical Foundation of Authority”) in which Derrida perhaps most publicly announces the project of “Question of Responsibility”; it then concludes by considering Derrida’s intervention upon a specific institutional practice—capital punishment—as unjust cruelty, by drawing upon the insights of another modern institution—psychoanalysis—as a resource for understanding both the origins of the drive for such cruelty and the possibility of its mediation. Here I both reconstruct Derrida’s discourse on psychoanalysis as an institutional form that has a unique obligation to testify against cruelties like the death penalty and also put this discourse

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into conversation with the ongoing scholarly reception of Derrida’s reflections on capital punishment.

4.2  Derrida on the Historicity of Right: A Reading of “The Force of Law” As we have seen in the previous chapters, Derrida’s reflections on institutions developed during the 1970s and early 1980s through a set of inquiries into the condition for the possibility of institutional normativity. What we discovered in tracing this inquiry into the origin of institutions—that is, this inquiry into what might be called Derrida’s social ontology—is that for Derrida institutions maintain an intrinsic relationship to what he calls “historicity.” That Derrida should approach the question of institutionality and the conditions for the possibility of social facts through the prism of this problematic of historicity should come as no surprise given the extent to which deconstruction emerged as an attempt to reflect on history and philosophy’s own vexed relationship to its historical character. As I have begun to suggest in the introduction to this chapter, Derrida’s reflections on the origins of a set of exemplary modern institutions—law, literature, and, as we are about to see in this chapter, psychoanalysis—ultimately culminate in a reflection, emerging in his oeuvre in the 1980s and continuing until his death, on the relationship between institutions and another set of concepts: force and right. As he turns explicitly to consider the concept of responsibility that might correspond to a deconstructive reflection on institutions, Derrida becomes increasingly preoccupied with the relationship between the state and its juridical institutions. In making this claim, I turn to a pivotal and well-known text that I would like to interpret anew in light of the reading of deconstruction that has been developed over the course of the forgoing pages: “The Force of Law: The Mystical Foundation of Authority.” In what follows, I advance a reading of the concepts of force and right—the next two concepts in the cluster comprising what I am arguing to be Derrida’s critical theory of institutions—in two parts. I will not be able to do justice here to the extensive secondary literature on this text in the scholarly reception of Derrida’s work.3 However, to say a word here about what is “new” with 3  For a more detailed reading of the relationship between Derrida and Benjamin than I can offer here, which also offers a reading of the ethical and political stakes of Derrida’s project to which the present study is sympathetic, see Matthias Fritsch’s The Promise of Memory: History and Politics in Marx, Benjamin, and Derrida (2006).

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the reading that follows: here I offer a reading of “Force of Law” that attempts to follow up on Derrida’s own intimation in his essay that its account of deconstruction is continuous with his earlier philosophy, for it seems to me that there has yet to be attempted a study of this text that does the detailed work of tracing its connections to the texts and themes that Derrida mentions here and that I expound in detail in Chaps. 2 and 3. If Derrida himself in “The Force of Law” is somewhat unpersuasive on this point, given the rough and ready fashion in which he indicates the connections between his earlier and later works on the theme of justice, my hope is that in situating a reading of “The Force of Law” in the context of Derrida’s thinking of institutionality as a whole I will have offered here the most generous possible reading of this claim that he makes. Specifically, first, I begin by following Derrida in giving a formal, phenomenological description of the experience of justice, which he identifies, paradoxically, as an “impossible experience,” to the extent that justice for Derrida both analytically requires the institutionalization of an order of right as an essential predicate and implies a structural moment of uncertainty about the justness of any present state of institutional arrangements. Rather than identifying such an aporia or impasse of the experience of justice with a sterile negation, however, as we will see, Derrida argues that avowing the finite, fungible, and contingent character of the arrangement of institutional forces is the condition for the possibility of being responsible for and intervening—perhaps—justly upon them. What this means effectively is that avowing the historicity of juridical institutions is both the threat of their discredit and the chance of their being answerable to substantive normative demands from those others who have been excluded from them. As Derrida will put it, “[W]hile seeming not to ‘address’ the problem of justice,” he will argue that deconstruction “has done nothing else while being unable to do so directly but only in an oblique fashion. I say oblique [… because] one cannot speak directly about justice, thematize, or objectivize justice, say ‘this is just,’ and even less ‘I am just,’ without immediately betraying justice, if not law” (2002a, 237). Next, in the second part of my analysis, which follows the second part of Derrida’s address, I trace how Derrida, through a reading of Walter Benjamin’s Critique of Violence, moves from a formal, phenomenological description of the experience of justice to an actual intervention upon a determinate tradition of institutional arrangements comprising the modern state. As we will see, Derrida finds in Benjamin the resources for developing an account of the origin of this tradition and in particular its relation

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to violence that presages his writings on capital punishment; namely, on the one hand Benjamin exposes a kind of bloodlust endemic to the state in its law enforcement function, while on the other hand, Derrida, contra Benjamin, casts skepticism on the possibility of a kind of anarchic violence that would strike down the state as a guarantor of rights. As we will see, in this moment, Derrida makes a decision to affirm a certain tradition of right and human rights, taking on board much of the Benjaminian critique of violence, but while also affirming the need to work within and transform this tradition. * * * “Force of Law” begins, as so many of Derrida’s texts that we have read so far, with a speech act and a reflection on the institutional context of that speech act. More specifically, Derrida engages in a speech act designed to raise the normative question that we have been tracking in relationship to deconstruction. The speech act is: “C’est pour moi un devoir, je dois m’addresser a vous en anglaise. This is for me a duty, I must address myself to you in English” (Derrida 2002a, 231). That is, Derrida begins his lecture by speaking in French about a duty to address his audience in English and then proceeds to translate this recitation of an obligation to address his audience into English. For Derrida, this speech act—the invocation in another language of an obligation to speak to the other in the language of the other—is meant to speak to the title of the conference and the conditions in which he speaks: the colloquium held at the Cardozo Law School in October 1989 titled “Deconstruction and the Possibility of Justice.” How so? As he goes on to relate, for Derrida, in the title of this colloquium one can hear something “virtually violent, polemical, inquisitorial,” as if there is an assumption that deconstruction permits no substantive discourse on questions of justice. Derrida begins by engaging in a speech act that answers to an obligation to foreground his response to this suspicion about deconstruction. As he notes, the devoir or duty that he invoked at the beginning of his lecture, in French, to address his audience in English, ultimately already introduces a case of obligation and the demand for justice. As he notes, this obligation to speak to the other in the language of the other does not only correspond to a pragmatic necessity to be understood by the majority of addressees at the conference, but is also juste, “in the sense of justice, a sense which, without thinking about it too much for now, one could call juridico-ethico-political: it is more just to

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speak the language of the majority, especially when, through hospitality, it grants speech to the stranger or the foreigner” (2002a, 232). As Derrida notes, this loi that dictates that one speaks in the language of the majority also presupposes that it is possible for him, the foreigner, to have understood this language well enough to be able to accede to this law and that a translation of his text is possible. As Derrida intimates, it is ultimately “this question of language and idiom” (2002a, 233) that will be integral to his remarks on the question of the relationship between deconstruction and justice. More specifically, Derrida will be interested here in a specific normative question: the relationship between institutions and violence and with the way institutions socially codify violence as legitimate. To broach this question, and in line with this theme of the idiom, Derrida identifies two idiomatic phrases in English that will allow him to introduce a response to this question of the conference about the relationship between deconstruction and the possibility of a discourse on justice and that puts his discourse on justice into conversation with the tradition of critical philosophy, not as moral philosophy articulating an ahistorical normative logic, but rather in its historical-political reflections on the possibility of a philosophy of right. The first of these phrases is “to enforce the law.” For Derrida, this English idiom is particularly useful insofar as it indexes an immanent relationship between law and force that has been a feature of a certain tradition of thinking the law that stems from Kant and his Doctrine of Right: “The word ‘enforceability’ recalls us therefore to the letter. It literally reminds us that there is no law that does not imply in itself, a priori, in the analytic structure of its concept, the possibility of being ‘enforced,’ applied by force” (2002a, 233). As Derrida goes on to explain, the question that will preoccupy him throughout the lecture with respect to law and force is the question of criteria that preoccupied him in “Before the Law”: namely, by what criterion can one differentiate between the force of law and unjust violence? For Derrida, this reference to Kant is not accidental and this question also passes necessarily by way of the idioms of the German language and, in particular, the German word Gewalt. As Derrida notes, Gewalt is in a certain sense untranslatable, insofar as the standard translations of it as “violence” in both French and English overlook that this word can, in German, also refer to “legitimate power, authority, public force” (2002a, 234). Indeed, Gewalt refers precisely to the kind of authority that is exercised by an institution that carries with it legitimacy or right.

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As Derrida begins to intimate here, the question that will preoccupy him in this lecture is ultimately about the relationship between institutions and Gewalt—the relationship between the necessarily ungrounded or a-legitimate act of force that institutes an order of right and the legitimate force or right that this makes possible in turn. Specifically, Derrida wants to link this theme to the presupposition of the conference that deconstruction has had nothing to say about justice, noting that the concept of force—a concept without which one cannot think law and therefore justice—recurs throughout his early work. Notably, here Derrida cites several of the texts that we have analyzed thus far—singling out his writings on performative force in “Signature, Event, Context,” as well as the essays “Declarations of Independence” and “Before the Law,” among others. For my purposes here, the clearest way that one can make sense of Derrida’s claim here is that deconstruction has always been preoccupied with the problematic of historicity—that is, with the question of the origin of cultural accomplishments, among which law would be one case. But what is new here in comparison to the earlier texts that we discussed in previous chapters is that Derrida makes the remarkable claim that deconstruction, as a questioning about the origins or possibility of cultural objects, might be more at home within the University in departments of law than in departments of philosophy or literature, insofar as it is preoccupied with what he calls “politico-institutional problems” (2002a, 236). Rather than remaining a purely theoretical or speculative discourse, Derrida notes that he sees the future of deconstruction in an aspiration “to something more consequential, to change things and to intervene in an efficient and responsible (though always, of course, in a mediated way), not only in the profession but in what one calls the city, the polis, and more generally the world.” In a word, as we have been tracing throughout this study, here Derrida explicitly affiliates deconstruction with an intervention upon social and political structures. Having insisted that deconstruction is not merely theoretical or speculative but in some sense thrown into the world, Derrida proceeds to begin elaborating this claim by addressing the idiomatic phrase “enforce the law.” Specifically, Derrida cites at length the following fragment by Pascal in order to set up a series of reflections about the relationship between force—understood as the legitimate force of coercion—and right [droit] in order to articulate a deconstructive discourse on justice as an impossible experience:

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Justice, Force—It is right that what is just should be followed; it is necessary that what is strongest should be followed. Justice without force is powerless [in other words, justice is not justice, it is not achieved if it does not have the force to be ‘enforced’; a powerless justice is not justice, in the sense of law— J.D.] force without justice is tyrannical. Justice without force is gainsaid, because there are always offenders; force without justice is condemned. It is necessary then to combine justice and force; and for this end make what is just strong, or what is strong, just. (2002a, 238–239)

For Derrida, this fragment points to a curious relationship between law and justice. Namely, on the one hand, even if justice is irreducible to the institutionalization of positive law (to be just might demand more or even the opposite of positive law at present), it is nevertheless the case that justice still requires this kind of positive instantiation to be what it is. There is an obligation, a “must,” a doit that justice give rise to law and thereby also force; in a word, no justice without the concrete institutions to guarantee it in the here and now. On the other hand, it is a necessity that the strongest be followed, which is to say, as Derrida notes, that one can interpret this fragment of Pascal’s according to a “relativistic and empiricist skepticism”—that is, one can read it as implying the deflationary conclusion that the justice of laws is only a function of their force, that justice is merely the mystified codification of hierarchy. And, as Derrida notes, a line of interpretation of Pascal, starting with Arnaud, reads the pensée in this fashion, ascribing this moment of skeptical relativism to Pascal being temporarily under the influence of Montaigne. Derrida, for his part, acknowledges this debt to Montaigne, but chooses to underscore a phrase—indeed, this phrase is the subtitle of Derrida’s own lecture—that he sees Pascal as appropriating from Montaigne for purposes that are not merely skeptical: “the mystical foundation of authority” [fondement mystique de l’autorité] (2002a, 239). As Derrida notes, this phrase occurs in Montaigne’s culminating essai, “Of Experience,” in which Montaigne, inaugurating a tradition of skepticism that would menace modern philosophy evermore, cites the multifariousness of experience, of the case, of the event, as a refutation of any law that would try to subsume the particular under some universal: “Nothing according to reason alone, is just in itself; all changes with time. Custom creates the whole of equity, for the simple reason that it is accepted. It is the mystical foundation of its authority. Whoever carries it back to first principles destroys it.” For Derrida, we might say, Montaigne’s

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“Of Experience” presents a kind of ur-deconstruction of the law, but in pointing to the sense in which justice is always a fabrication of positive law, Montaigne also, Derrida thinks, indexes the sense in which justice is irreducible to law. As Montaigne will put it, in this sense law will always appeal to “certaine lawfull fictions, on which it groundeth the truth of justice” (2002a, 240). As Derrida notes, this tradition that stems from Montaigne to Pascal can be read, on the one hand, as subscribing to a naturalizing and theological tendency, according to which the laws of man, relative to those of God, are imperfect and rely upon certain fictions upon which they are propped up. However, there is also another possible reading of this fragment, which makes force an essential predicate of justice, that identifies what Derrida calls “the premises of a modern critical philosophy, even a critique of juridical ideology, a desedimentation of the superstructures of law that both hide and reflect the economic and political interests of the dominant forces of society” (2002a, 241). In specifying this other relationship that Derrida describes between law and force, it is worth citing him at length, for here Derrida speaks to the institution of law and of its historicity in a fashion that recalls the analyses we have undertaken in the previous two chapters: The very emergence of justice and law, the instituting, founding, and justifying moment of law implies a performative force, that is to say always an interpretative force and a call to faith [un appel la croyance]: not in the sense, this time, that law would be in the service of force, it’s docile instrument, servile and thus exterior to the dominant power, but rather in the sense of law that would maintain a more internal, more complex relation to what one calls force, power, or violence. Justice—in the sense of droit (right or law)— would not simply be put in the service of a social force or power, for example an economic, political, ideological power that would exist outside or before it and that it would have to accommodate or bend to when useful. Its very moment of foundation or institution, besides, is never a moment inscribed in the homogenous fabric [tissue] of a story or history, since it rips it apart with one decision. Yet, the operations that amount to founding, inaugurating, justifying law, to making law, would consist of a coup de force, of a performative and therefore interpretative violence that in itself is neither just nor unjust and that no justice and no earlier and previously founding law, no preexisting foundation, could, by definition, guarantee or contradict or invalidate. No justificatory discourse could or should ensure the role of

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metalanguage in relation to the performativity of institutive language or to its dominant interpretation. (2002a, 241–242)

Derrida’s claim, to begin with, is that the authority of law needs to be understood “performatively”—that is, as produced by a speech act that both presupposes and establishes a set of conventions and criteria. But, as we saw previously with “Declarations of Independence,” what is paradoxical about this founding of conventions and criteria is that it depends upon croyance, believing, in order to be effective. Without this credit that we grant to the founding of these conventions and criteria, the law would have no force. And in this respect the historicity of law is peculiar: law cannot be said to emerge placidly from a set of pre-given conditions that it appeals to, but always in a sense consists in a break with history. An order of right is also essentially interpretable as (unjust) violence as opposed to (just) right, then, in the sense that it births a new order, the validity of which could not have been guaranteed by an anterior convention. As much as one would like to find a “metalanguage” to come to the aid of the law—some theological or naturalistic fable (and naturalism would be theological a priori on this reading)—the fact remains that the force of law is a function of force, such that the circular logic that guarantees law is ineluctable. And this is what leads to Derrida’s theory of what he calls, following Montaigne, “the mystical,” which also recalls his analysis of silence in Foucault’s History of Madness that we observed in Chap. 2 and which he applies to the juridical institution here: There is here a silence walled up in the violent structure of the founding act; walled up, walled in because this silence is not exterior to language. Here is the sense in which I would be tempted to interpret, beyond simply commentary, what Montaigne and Pascal call the mystical foundation of authority. One will always be able to return upon—or turn again—what I am doing or saying here, the very thing that I am saying is done or occurs at the origin of every institution. (2002a, 242)

Here Derrida re-elaborates the theory of institutional normativity that we observed in Chap. 3, according to which the force of institutional utterances always depends upon a discursive act or event that founds an institution, that creates social credit, credibility, and social facts. In this respect, as Derrida notes, from a philosophical perspective, the status of an institution and its credit is “neither legal nor illegal in their founding

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moment” (2002a, 242), insofar as this moment arrogates itself the kind of right to found rights that we saw in Derrida’s analysis of “Declarations of Independence.” It is in this respect that the law, Derrida will say, using a word that was not present in “Declarations,” is deconstructible: the law always rests upon standing performatives that are presumed to be in credit but that, when taken to their first principles, can be destroyed.4 Crucially, for Derrida this deconstructibility is not bad news and in fact is the key to understanding the sense in which one could be responsible for the social world as a complex of historically sedimented normative entitlements. In noting that the social and political depends upon juridical ideology—the institution of what Derrida, following Montaigne, calls a necessary or “lawful fiction”—Derrida asserts that while one might be led to think of this reading of law as lending itself to a kind of skeptical empiricism, the acknowledgment of this non-foundational status of justice as law can be read otherwise: that accounting for the non-foundational status of normativity (that is, its deconstructibility) is faithful to a form of moral reasoning within an institution. Specifically, Derrida’s claim is that “this 4  It should be noted that, at first blush, Derrida does not seem to use the word “deconstruction” here in a way that is consistent with its usage in his earlier work—in which the term bore a reference to Heidegger’s “destruction” of ontology. At first it seems as if saying that the law is deconstructible is to bring to reflective awareness the fact that the form of law is such that it appeals to conventions prior to it—that law in some sense presupposes its own legitimacy or authority to offer rules for deciding between just and non-just acts; to show that those conventions do not necessarily demand the existence of said law is to undermine its currency, or at least expose its contingency. So understood, deconstruction would amount merely to a skepticism that one could identify from Montaigne to Hume and beyond. But where this critique of juridical ideology that is deconstruction moves beyond skepticism is in its account of the status of this circularity—a circularity that Derrida wants to suggest has normative implications. Namely, these skeptical reflections ultimately do not end in mere skepticism but instead reveal how juridical rationality requires a priori the kind of hermeneutic circle that we saw Derrida describe in Heidegger in Chap. 1—a circle whose acknowledgment does not necessitate a merely historicist interpretation. Here it is worth recalling that, as we saw in Chap. 1, the hermeneutic circle of ontology stipulates that any interpretation of beings presupposes some meaning of being, but any attempt to interpret the being of beings will arrive at some being. A discourse on being itself—fundamental ontology—thus cannot command rational justification. And yet the acknowledgment of this weakness of rationality is not so much irrational as it is the crown of reason in Derrida’s estimation. As with being, so too with justice: the decision between just and unjust laws cannot be determined by appeal to an anterior norm except but circularly, for that norm in its turn would have to appeal to a prior norm for justification. The difference between being and beings thus comes to be mapped onto the difference between laws and justice. The deconstructibility of law finds its coordinates from the deconstruction of ontology.

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deconstructible structure of law, or if you prefer, of justice as law” also “ensures the possibility of deconstruction”—that is, the attempt to mark the historicity of the law in those moments when it attempts to disavow its historical founding. And what this means is that in contrast with justice as law, which is deconstructible, what Derrida calls “justice in itself, if such a thing exist, outside or beyond law, is not deconstructible” (2002a, 243), in the sense that one can never know that one is just—that justice has arrived in its presence—except as a form of dogmatism. In a word, justice as law is a condition for the possibility of justice—if such a thing exists—but because justice as law is historical one will always be engaged by a responsibility to undergo an incessant renegotiation of law as justice in the name of more justice. In this vein, one of the key points to note here is that because justice as law is always the function of a contingent performative, one always has to speak of the existence of justice—that is, the presence of justice—conditionally. Derrida says the same of deconstruction: “No more than deconstruction, if such a thing exists.” Deconstruction, like justice, thus breaks with ontology. It is this formal resemblance that leads Derrida to what at first seems to be a bizarre conclusion: “Deconstruction is justice.” In what sense could this be true? Here it is crucial to connect these remarks on deconstruction from “Force of Law” to the theme with which, as we saw in Chap. 2, Derrida always affiliated deconstruction: historicity. If deconstruction is a form of historical reflection—a form of historical reflection that, by virtue of its exposure of the contingency of the present, does justice to the possibility of some unheard event or demand—then this form of historical reflection is uniquely suited to the way that Derrida has described justice in this essay. It is in this respect that Derrida ultimately describes deconstruction as an experience: “the experience of aporia” (2002a, 244). Such a description is paradoxical, for, as Derrida notes, if experience has always been identified with a traversal that arrives at some presence, an aporia would seem to be opposed to experience in that it ends in an impasse: “Yet, in this sense there cannot be a full experience of aporia, that is, of something that does not allow passage. Aporia is a nonpath. From this point of view, justice, insofar as it is an experience of aporia, would be the experience of what we are unable to experience.” Derrida’s contention is that the experience of justice is in this sense always “an experience of the impossible”: “a will, a desire, a demand for justice the structure of which would not be an experience of aporia, would have no chance to be what it is—namely, a just

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call for justice.”5 In other words, Derrida’s contention is that this structure of justice as law that he has been describing, according to which it produces its own authority performatively—a production that is by necessity neither just nor unjust—is an inextricable feature of ethico-politico-­ juridical life, which is to say institutional life. That is, if one were to provide this performative production with a script, leading justice as law back to some principle that authorizes its institution, one would no longer be talking about justice: “Every time that something comes to pass or turns out well, every time that we placidly apply a good rule to a particular case, to a correctly subsumed example, according to a determinant judgment, law perhaps and sometimes finds itself accounted for, but one can be sure that justice does not” (2002a, 244). Derrida’s point here is that there are ways of accounting—that is, of becoming conscious of—the walled silence upon which every social structure erects itself, referring to this as a peculiar form of experience in which the authority of the norms through which we have rendered the social-political world intelligible becomes uncannily unfamiliar. In other words, Derrida is putting forward the perhaps counter-­ intuitive argument that non-knowledge—not knowing that one’s actions are just or that the social world that renders this judgment is just—is a condition for the possibility of justice. And if non-knowledge is not a contingent feature of the experience of justice that could be overcome by the accrual of more knowledge, but rather definitive of this experience, then what it will mean to responsibly navigate the social world produced by those institutions that have established the difference between just and unjust, will be to be responsive to being addressed by cases for which one’s history cannot account: Address, like direction, like rectitude, says something about law [droit] and about what one must not miss when one wants justice, when one wants to be just—it is the rectitude of address. Il ne faut pas manquer d’adresse, one must not miss the address, one must not mistake the address. But the address always turns out to be singular. An address is always singular, idiomatic, and justice, as law, seems always to suppose the generality of a rule, a norm or a universal imperative. […] Is it ever possible to say that an action 5  Here and later in the chapter I invoke a notion of normative experience found in Derrida’s work from this period. For a more detailed discussion of Derrida’s concept of experience, as well as its ethical implications, see David Wood’s Thinking After Heidegger (2002) and Zeynep Direk’s important writings on the concept of experience that informs Derrida’s philosophy (1998).

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is not only legal, but just? A person is not only within his rights [dans son droit] but within justice? That such a person is just, a decision is just? Is it ever possible to say, “I know that I am just”? I would want to show that such confidence is essentially impossible, other than in the figure of good conscience and mystification. (2002a, 245)

What does this all mean for Derrida’s concept of the institution and his notion of deconstruction as an institutional practice? First, insofar as Derrida conceives of institutions as juridical entities—that is, as a socially agreed upon network of norms that facilitate a certain regime of speech and action—what is distinctive about his concept of the institution is its intrinsic historicity. To acknowledge the historicity of institutional life, to acknowledge that the regimes of sense and sense-making that render the world regular are contingent, does not imply the kind of skeptical relativism of which deconstruction has often been accused. To the extent that this possibility of deconstruction—understood as any act that exposes the social and political world to historical transformation—is also the possibility of moral progress. It seems to me that herein lies the whole of Derrida’s political thought: in exchange for a radical acknowledgment of the utterly contingent normative arrangements in which we find ourselves one is granted the chance of progress—a rearrangement of institutional force in the name of some new positive idea of justice that could not be predicted in advance. What Derridean deconstruction offers us is a guardrail against what Nietzsche would call the pigtail of good conscience—a relationship to institutional life that sees in institutions, as juridical entities, the sine qua non of right (right for Derrida being nothing if it is not institutionalized, instantiated in the here and now in a never-ending assessment, an interminable analysis of our situation), but is also deeply skeptical of any attempt to fetishize the institutional present. Indeed, insofar as force is an a priori predicate of a juridical institution—as Derrida will say, following Kant—it will always be the case that in hindsight one may discover what was taken to be legitimate force will have been the worst violence. For example, as Derrida notes, according to the positive, historical tradition of right that has governed the fundamental concepts of political philosophy, it has not been possible to say that animals suffer “an injustice or violence” (2002a, 246). For philosophy, at least in its dominant tradition, the animal merely suffers. And as Derrida notes, this suffering of the animal is the paradigm case for a whole slew of others excluded from right: “and this is true a fortiori one thinks, for what one calls vegetable or

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mineral or intermediate species like the sponge. There have been, there are still, many ‘subjects’ among humankind who are not recognized as subjects and who receive this animal treatment (this is the whole unfinished story and history I briefly alluded to a moment ago)” (2002a, 246). Derrida’s point, in other words, is that the institutionalization of a set of concepts that parcels out right and exclusion from right among beings is fungible, and if one acknowledges this fungibility, it would be possible to develop a “reinterpretation of a whole apparatus of limits within which a history and a culture have been able to confine their criteriology” (2002a, 247). As Derrida will insist: “[W]hat is currently called deconstruction would not at all correspond (though certain people have an interest in spreading this confusion) to a quasi-nihilistic abdication before the ethico-­ politico-­juridical question of justice and before the opposition between just and unjust, but rather to a double movement.” What is this double movement? According to Derrida, deconstruction answers first of all to a “sense of a responsibility without limits.” This responsibility is without limits in the sense that it requires one to cultivate a knowledge of the history of responsibility—that is, a history of the dominant concepts that, in the course of this positive history, have placed limits on what one is answerable for. Importantly, however, Derrida wants to acknowledge that this skeptical moment contains a structure of both chance and peril: But in the moment that the credit or credibility [credit] of an axiom is suspended by deconstruction, in this structurally necessary moment, one can always believe that there is no more room for justice, neither for justice itself nor for the theoretical interest that is directed toward the problem of justice. It is a moment of suspense, this period of epokhe, without which there is, in fact, no possible deconstruction. It is not a simple moment: its possibility must remain structurally present to the exercise of all responsibility if such responsibility is never to abandon itself to dogmatic slumber, and therefore to deny itself. (2002a, 248–9)

Derrida’s claim here is that on the one hand “nothing is more just than what I call today deconstruction” (2002a, 249), in the sense that deconstruction would stand for a reflection on law—justice’s positive instantiation—as irreducibly historical, contingent, and needing to be exposed to transformations in the name of a justice that could never be predicted. On the other hand, this hyper-fidelity to justice is also what can make deconstruction appear, from the standpoint of some contingent set of

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institutional arrangements, as a kind of lawless rogue. What I would want to add to this—and what I think Derrida’s conception of deconstruction as an institutional practice adds to this account of justice—is that actual social and political institutions would be the terrain within which such struggles for justice would occur. With this description of the experience of justice as aporia in hand—and the possibility of critique that such an experience authorizes—we are now in a position to turn to the second section of “Force of Law,” where Derrida intervenes upon a particular articulation of justice as law found in the Western discourse on rights expressed by Walter Benjamin. It is here also that we see Derrida identify deconstruction with a certain tradition of human rights—an extension of the Enlightenment—in contrast with Benjamin. As Derrida notes, Kritik der Gewalt, Benjamin’s essay, can be translated just as much as “Critique of Force” as it can “Critique of Violence,” insofar as der Gewalt in German can refer just as much to the legitimate force exercised by an institution as lawless violence. As Benjamin makes clear at the outset of his essay, he takes it that a “critical” inquiry into Gewalt needs to take the form of a philosophical reflection on its relation to “law and justice.” Derrida’s intervention upon Benjamin occurs principally where Benjamin attempts to make a distinction between the “lawmaking function” (1996, 241) and “law-preserving function” of violence. Whereas lawmaking violence institutes a new legal order, the function of law-­ preserving violence is to conserve the instituted legal order. For Benjamin, what defines the law-preserving function of violence—namely, punishment—is the possibility of threat: it is because the legal system can threaten with violence—and exemplarily the violence of capital punishment—that it is able to preserve itself. As Benjamin will put it, “For in the exercise of violence over life and death, more than in any other legal act, the law reaffirms itself. But in this very violence something rotten in the law is revealed, above all to a finer sensibility, because the latter knows itself to be infinitely removed from conditions in which fate might imperiously have shown itself in such a sentence” (1996, 242). And even more than the institution of the death penalty, Benjamin believes that “in a kind of spectral mixture, these two forms of violence [lawmaking and law-preserving] are present in another institution of the modern state: the police.” On the one hand, the police as an institution is entitled to exercise law-preserving violence in the name of legal ends; on the other hand, insofar as the police is given such wide ranging “authority to decide these ends itself,” the police carries out a quasi-creation of the law: indeed, Benjamin believes that it is with the

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institution of the police that “the separation of law-making and law-­ preserving violence is suspended” (1996, 243). In Benjamin’s estimation, this latitude of the police threatens to outstrip the empirical, legal ends— that is, the law-preserving function of violence—that they are meant to enforce and in which their force is meant to be circumscribed. It is for this reason that Benjamin identifies the police, as a modern institution, as a kind of evil: Unlike law, which acknowledges in the ‘decision’ determined by place and time a metaphysical category that gives it a claim to critical evaluation, a consideration of the police institution encounters nothing essential at all. Its power is formless, like its nowhere-tangible, all-pervasive, ghostly presence in the life of civilized states. And though the police may, in particulars, appear the same everywhere it cannot finally be denied that in absolute monarchy, where they represent the power of a ruler in which legislative and executive supremacy are united, their spirit is less devastating than in democracies, where their existence, elevated by no such relation, bears witness to the greatest conceivable degeneration of violence. (1996, 243)

Despite this horror, however, at the violence wielded by police, Benjamin nevertheless also does not think that it is possible to have a legal order that would do without violence or force altogether. For, as he reasons, any social compact or contract implies “the right to resort to violence in some form against the other, should he break the agreement,” to the extent that, without the possibility of violence, no contract could be meaningful. This is what will lead Benjamin to say that “when the consciousness of the latent presence of violence in a legal institution disappears, the institution falls into decay” (1996, 244). In a criticism of parliamentary democracy that betrays the influence of Carl Schmitt, Benjamin suggests that the spectacle of parliamentary democracy attests to this decay of the juridical institution: insofar as they have been severed from the revolutionary violence that is the root of their institution, such governmental forms are alienated from their own lawmaking potential.6 Benjamin’s normative claim at this point in the essay is that this reveals that all legal violence 6  It is in this context that Benjamin invokes the theory of the strike and violence developed by Sorel. According to Sorel, it is possible to distinguish between a political general strike, which ultimately reinforces state power, and a proletarian general strike that sets itself the goal of destroying the state. Paradoxically, Sorel conceives of the former as violent and the latter as nonviolent; for insofar as the former is a form of coercion, a withdrawal of labor that is instrumentalized to achieve some end granted by the state, the latter has as its goal the eradication of coercion that is a concomitant of the state form.

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warrants a suspicion and even a “certainty of the perniciousness of its historical function, the destruction of which thus becomes obligatory” (1996, 249). As Derrida reads him, Benjamin is engaged in a kind of fantasy of violence—violence of the kind that would destroy the state and the force that is always a correlate of this institution. Walter dreams of Walten here, not unlike the dream of sovereignty that Derrida saw in Jefferson—a dream of pure and bloodless violence that in its destructiveness would not involve itself in the institution of right at all: “I believe this uneasy, enigmatic, terribly equivocal text is haunted in advance (but can one say ‘in advance’ here) by the theme of radical destruction, extermination, total annihilation, and first of all annihilation of the law, if not of justice; and among those rights, human rights, at least such as these can be interpreted within a tradition of natural law of the Greek type or the ‘Aufklarung’ type” (Derrida 2002a, 258–259). Derrida’s concern, as becomes clear, is with the inference that Benjamin draws at the end of his text that the destruction of law qua state violence is an obligation. What concerns Derrida ultimately about Benjamin’s critique of juridical violence is its call for a destruction of the juridical as such—and the destruction of the legacy of a tradition of human rights that this entails. As we will see, it is ultimately in these pages, delivered in 1990, that one can see what Derrida, in Rogues, describes as what might have changed between 1965 and 1990 for deconstruction. Namely, as I would like to suggest in retracing this reading of Benjamin, Derrida couples the thought of institutionality, which had been developing for him since at least the early 1970s, with a certain notion of justice here, and it is roughly in this period of his oeuvre that he comes to re-interpret the theme of deconstruction—historicity—in a fashion that connects this theme to the question of justice and the possibility of its institution. What emerges therefrom is a notion of deconstruction that is committed to the juridical institutions of democracy and human rights. Turning now to the substance of Derrida’s analysis of his text: it is in the context of describing the deconstructibility of the oppositions that structure Benjamin’s text that Derrida advances an additional extension on his account of the origin of the juridical institution. Specifically, Derrida contends that the logic of Benjamin’s text implies that “the very violence of the foundation or positing of law (Rechtsetzende Gewalt) must envelop the violence of the preservation of law (Rechtserhaltende Gewalt)” (2002a,

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272).7 Namely, Derrida will contend that the latter—the violence that is undertaken in the name of preserving the legal order—is enveloped by a “structure of fundamental violence in that it calls for the repetition of itself and founds what ought to be preserved, preservable, promised to heritage and to tradition, to partaking [partage].” That is, Rechtsetzende Gewalt cannot be understood as belonging to an order that is distinct from Rechtserhaltende Gewalt because the foundation of law a priori entails its historical unfolding and repetition. As Derrida will put this point later, it is ultimately the iterable character of the violence or force at the root of law that destabilizes the distinction between these two types of violence: What threatens the rigor of the distinction between the two types of violence—and which Benjamin does not say excluding it or misrecognizing it—is, at bottom, the paradox of iterability. Iterability makes it so that the origin must [droit] repeat itself originarily, must alter itself to count as origin, that is to say, to preserve itself. Right away there is the police and the police legislates, not content to enforce a law [loi] that would have had no force before the police. This iterability inscribes preservation in the essential structure of foundation. This law [loi] or this general necessity is certainly not reducible to a modern phenomenon; it has an a priori worth, even if one understands that Benjamin gives examples that are irreducibly modern in their specificity, and explicitly targets the policy of the ‘modern state.’ Rigorously speaking, iterability precludes the possibility of pure and great founders, initiators, lawmakers (‘great’ poets, thinkers or men of state, in the 7  Because in Benjamin’s view theories of natural law “can only lead to bottomless casuistry”—an endless cycle of circular regress of justification—he proposes to begin with the positive theory of law, as a “hypothetical basis at the outset of this study,” given its capacity to make distinctions between types of violence qua means, rather than simply treating violence as undifferentiated natural kind. Namely, the positive theory of law, as Benjamin construes it, is a good starting point for a critique of violence because it admits of a distinction “between historically acknowledged, so-called sanctioned force and unsanctioned force”— that is, between force that is legitimated by some form of institutional authorization and force that lacks such institutional authorization. Armed with and accepting this hypothetical distinction from the positive theory of law, Benjamin proceeds to the core question of his essay: “The question that concerns us is: what light is thrown on the nature of violence by the fact that such a criterion or distinction can be applied to it at all?” (1996, 237–8). For Benjamin this requires thinking the relationship between violence and law, for it is only within the realm of law that it is possible to make it: it is the institution of law that allows for there to be a discrimination between sanctioned and unsanctioned violence in the first place.

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sense Heidegger will mean in 1935, following an analogous schema concerning the fatal sacrifice of these founders). (1996, 278)

What Derrida is suggesting here is that the prospect of separating something like an originally violent instantiation of an institution and the repetitive violence, force, or coercion through which such an institution perpetuates itself historically, is impossible. Redeploying the analysis of historicity that we saw him engage in as early as his analysis of Husserl’s “Origin of Geometry” in Chap. 2, Derrida argues that an institution will always require something like a police force. In this sense, Derrida will note that something like the police, contrary to Benjamin’s assertion, are not simply the product of modern, European civilization, but instead a kind of a priori of the law: “The police are not only the police (today more or less than ever), they are there [elle est la], the figure without face or figure of a Dasein coextensive with the Dasein of the polis” (2002a, 278). In so arguing, Derrida aims to do away with any notion of a pure foundation, but instead conceives of the institutions in which we find ourselves as freighted with a history of violence that admits of the chance of transformation. And it is in this context that Derrida will appeal to a notion of promising, once again, as we saw in a similar passage from Specters of Marx in Chap. 2, to capture this historicity of right: A foundation is a promise. Every positing (Setzung) permits and promises, posits ahead [permet et pro-met]; it posits by setting and by promising [en mettant et en promettant]. And even if a promise is not kept in fact, iterability inscribes the promise as guard in the most irruptive instant of foundation. […] Positing is already iterability, a call for self-preserving repetition. Preservation in its turn refounds, so that it can pre-serve what it claims to found. Thus there can be no rigorous opposition between positing and preserving, only what I will call (and Benjamin does not name it) a differential contamination between the two, with all the paradoxes that this may lead to. No rigorous distinction between a general strike and a partial strike (again, in an industrial society, we would also lack the technical criteria for such a distinction), nor, in Georges Sorel’s sense, between a general political strike and a general proletarian strike. Deconstruction is also the thought of this differential contamination—and the thought taken by the necessity of this contamination.

This passage is worth unpacking at length, since it contains perhaps the most significant intervention of Derrida’s part on Benjamin’s text. In

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developing Derrida’s reading of the performative in “Signature, Event, Context” and “Before the Law,” we have also prepared ourselves to interpret this passage. At its core, this passage appeals to the same phenomenological distinction that governed his analysis of Austin: the distinction between fact and essence. Namely, Derrida is making an a priori claim about the formal structure of the experience of the act of founding a juridical institution when he says that this experience is the experience of a promise. To found a legal order is to promise to preserve it in time and to marshal the means to do so into the future; in order for a juridical institution to be what it is, it must pledge itself—even if it isn’t aware of this pledge—to the future. While in fact this promise might not be kept, it belongs to the structure of the intention that founds law to be engaged by this promise. Here, just as Derrida pursued the philosophical consequences of Austin’s empirical observation that infelicity is an ill to which all performative utterances are in principle subject, Derrida’s contention is that this possibility of the promise is a formal requirement. For Derrida, the fact that the foundation of law has preservation and repetition inscribed at its core is “for better, or worse,” in the sense that this requirement for the foundation to be reiterated is also a requirement that the actual allocation of force and distribution of violence can be redistributed for better or worse. The trouble, Derrida sees, with the Sorelian strain of Benjamin’s discourse— that is, the moment in his discourse that engages in a kind of narcissistic phantasy about a divine, pure, bloodless, and wholly indemnifiable violence—is that it disavows the fact that there is no criterion, at least in principle, that would allow one to distinguish between the good violence that strikes down oppression and the bad, instrumental violence that keeps oppression’s lock and key. To account for the differential of the good and the bad, as opposed to opposing them here is what Derrida describes as deconstruction: a reflection on the structural predicament in which we find ourselves when it comes to the juridical institution. Ultimately, what worries Derrida about Benjamin’s text is its intransigent desire to save at all costs this opposition between founding and preserving violence. What is at stake for Benjamin in this distinction, Derrida thinks, is an attempt to separate and criticize law-preserving violence relative to founding violence. What Derrida notes, tracing Benjamin’s observation is that, although it appears to be easier to criticize founding rather than preserving violence, because founding violence has no anterior criterion to which it can appeal to justify itself, this is complicated by the fact that founding violence always has the structure of an appeal to some

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anterior authority that, as we saw in “Declarations of Independence,” it invents for itself: On the one hand, it appears easier to criticize the violence that founds since it cannot be justified by any preexisting legality and so appears savage. But on the other hand, and this reversal makes the whole worth of this reflection, it is more difficult, more illegitimate to criticize this same founding violence since one cannot summon it to appear before the institution of any preexisting law: it does not recognize existing law in the moment that it founds another. Between two limits of this contradiction, there is the ungraspable revolutionary insant, of this exceptional decision which belongs to not historical, temporal continuum but in which the foundation of a new law nevertheless plays [joue], if one can say so, on something from an anterior law that it extends, radicalizes, deforms, metaphorizes or metonymizes—this figure here taking the name of war or general strike. But this figure is also a contamination. It effaces or blurs the distinction, pure and simple, between foundation and preservation. It inscribes iterability in orginarity, and this is what I would call deconstruction at work, in full negotiation: in the ‘things’ themselves and in Benjamin’s text. (2002a, 274–275)

Derrida’s claim here is that the institutive act that founds law qua violence is both the easiest to criticize and to justify. How does he account for this contradiction? On the one hand, founding violence is maximally criticizable because qua founding it cannot appeal to any anterior norm or convention to account for itself. On the other hand, the act of instituting law is also maximally justifiable because this act, as part of its intentional structure, takes it to be the case that there is no other law before which it is answerable—that is, because it presents itself as not beholden to any extant law or norm to justify itself. This acknowledgment of the constitutive co-­ implication of law and violence, Derrida thinks, is the linchpin of Benjamin’s skepticism about pacifism and other modern forms of critical discourses on violence. As Derrida puts it, glossing Benjamin, a “purely moral critique of violence would be as unjustified as impotent” (2002a, 275), insofar as it disavows its own recourse to the force/violence that underpins the law. That is, until one calls into question the rottenness at the heart of law, one will never have the means to develop a critique of violence proper. In Benjamin’s estimation one needs to reckon with the “unique fate or history (nur ein einziges Schicksal)” (2002a, 275) of the law to undertake such a critique. And it is on this question of fate or history that Derrida intervenes. For Derrida detects in Benjamin’s invocation

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of this unique fate or history a recourse to a certain “archeo-teleological, indeed archeo-eschataological perspective that deciphers the history of law as a decline or decay (Verfall) since the origin” (2002a, 281) and finds in this nostalgia for a pure origin of law the root of Benjamin’s distaste for democracy. As Derrida observes, given Benjamin’s conviction that violence/power/force is an a priori predicate of law, democracy poses a special problem for law: for in democracy the executive and legislative powers are sundered from one another. Democracy, on Benjamin’s account, would be rooted in a kind of alienation from the violence/power/force that is the sine qua non of any social contract: a “loss of conscience or of consciousness” (2002a, 282) of violence/power/force that has befallen the social order and results in an “institutional degeneration.” As Derrida observes, Benjamin distinguishes this bloody, mythic violence that he associates with the Greek tradition from the bloodless and divine violence of Judaism. Whereas the former founds law, the latter destroys it. For Benjamin, the value of the bloodless and blood plays a decisive role in this logic, which associates blood with life. On this reading, in contrast with the merely immanent order of life and blood (mythic violence), Benjamin associates divine violence in its bloodlessness with something transcendent. What one finds here are two logics of life and sacrifice: a sacrificial logic that takes life for its own sake (mythic violence) in opposition to a sacrificial logic that subordinates the value of life to its justness; whereas mythic violence is undecidable to the extent that it requires preservation and iterability, divine violence is defined by decidability: “revolutionary, historical, anti-state, anti-juridical violence” (2002a, 290). In articulating a critique of Benjamin’s anti-statism on the grounds that this fetishization of divine violence ruins the possibility of a juridical order that could guarantee rights—however unjust such an order of right might be at a given moment—in these closing pages of the essay, Derrida is led to instead affirm a commitment to institutions. For our purposes, his analysis of Benjamin in “Force of Law” is significant in that through this encounter Derrida has added to his “social ontology” two new concepts: force and right. Namely, at this stage in his development Derrida is not only preoccupied with accounting for the formal structure of the acts that found institutions (Chapter 3), as well as the intrinsic relationship to historicity (Chapter 2) that such acts presuppose, but also the violence and normative entitlements that specifically juridical institutions instantiate (Chapter 4). In so doing, Derrida is also led to engage, as he begins to do in texts like “Force of Law,” as we have just now seen, with a substantive

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engagement with Western political philosophy and the actual juridical institutions that this philosophy has described and in some cases prefigured. As we are about to see, Derrida, having begun to describe in “Force of Law” how the historicity of right implies an unconditional responsibility to critique the institutions that guarantees it, turns in the late 1990s and early 2000s to substantively engage in a critique of what he refers to as “sovereign cruelties,” such as the death penalty, which have been required by this discursive tradition. Moreover, in committing deconstruction to the cause of opposing sovereign cruelty, Derrida also draws upon the theorization of cruelty housed within another modern institution: psychoanalysis. As we will see, if in the “Force of Law” Derrida begins to develop a more compelling account of the relationship between institutions, violence, and the possibility of critique, then in his engagement with psychoanalysis Derrida finds a body of knowledge and an institution that—perhaps—could call such violence into question.

4.3  Deconstruction as—Perhaps—The Deconstruction of the Death Penalty (Derrida’s Institutions III: Psychoanalysis)8 At issue here is a history of reason and the mutation that something like psychoanalysis might inscribe in it—which is not an irrationality but perhaps another reason, another putting into play [mise en jeu] of reason. The Death Penalty: Volume II. (Derrida 2014, 159)

On July 16, 2000—approximately four months after concluding his seminar at the École des hautes études en sciences sociales (EHESS) that was posthumously published and translated as The Death Penalty: Volume I—Jacques Derrida delivered an address at the States General of Psychoanalysis entitled “Psychoanalysis Searches the States of Its Soul: The Impossible Beyond of a Sovereign Cruelty.” Derrida’s address begins 8  Portions of  the  text of  this section are drawn from  Gustafson (2015) and  Gustafson (2017). Text from  “The Life Drive of  Derrida’s Abolitionism: A  Review of  The  Death Penalty: Volume 1,” by Ryan Gustafson, is reproduced from The Undecidable Unconscious: A  Journal of  Deconstruction and  Psychoanalysis, vol. 2, 2015, and  text from  “Abolition, Phallocentrism, and  the  Mondialisation of  Psychoanalysis: A  Review of  Derrida’s Psychoanalytic Argument in The Death Penalty: Volume II,” by Ryan Gustafson, is reproduced from  The Undecidable Unconscious: A  Journal of  Deconstruction and  Psychoanalysis, vol. 4, 2017 with permission from the University of Nebraska Press.

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by posing a deceptively simple question to the analysts assembled at the States General: what is cruelty? In particular, Derrida observes that although the semantic unity of the word “cruelty” is often presupposed by its usage in ordinary language, the meaning of this term is in fact divided historically between a Latinate tradition (cruor, crudus, crudelitas), which associates cruelty with violence that specifically involves bloodshed, and a Germanic tradition (Grausamkeit), “unrelated to the flow of blood” (2002b, 238), which identifies cruelty with a desire to inflict suffering simply for the pleasure of inflicting suffering. Speaking before this association of psychoanalysts, Derrida is primarily concerned with addressing the latter sense of the word: cruelty qua sadism. As Derrida explains, he believes that psychoanalysis is the contemporary discourse that is perhaps best suited to thinking this particular modality of cruelty, insofar as analysts have refused to “reduce it, exclude it, deprive it of sense” (2002b, 240); that is, unlike traditional ethical and theological discourses that have treated such cruelty only to dismiss it as senseless evil—thereby leaving its explanation and amelioration in God’s hands— psychoanalysis has soberly attempted to account for its psychogenesis, as well as the possibility of its mediation. For Derrida, psychoanalytic knowledge is thus indispensable to the thinking of cruelty because analysts have been uniquely responsive to the ethical demand (2002b, 273) of analyzing it “without alibi” (2002b, 240). In this regard, Derrida underscores how Freud’s account of aggression, like Nietzsche’s, is distinguished by its willingness to countenance a cruelty without limit—a propensity to aggression that is part and parcel of life as such—that may be vented in more subtle, psychic forms even when it is not consummated in actual bloodshed. However, for Derrida this privilege of psychoanalytic knowledge also implies a worldly responsibility that this discourse, in its present theoretical and institutional articulation, has largely resisted. As Derrida explains, the analysis of cruelty should become “one of the horizons most proper to psychoanalysis” (2002b, 239), not only with respect to the suffering of its individual patients but also with respect to the “axioms” (2002b, 244) governing “the ethical, the juridical, and the political,” particularly in “those seismic places where the theological phantasm of sovereignty quakes and where the most traumatic, let us say in a still confused manner the most cruel events of our day are being produced.” At several points in his address, Derrida issues such an injunction to the institution of psychoanalysis: to analyze the relationship between the value of sovereignty— what he refers to as a “certain onto-theological metaphysics of sovereignty

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(autonomy and omnipotence of the subject—individual or state […])” (2002b, 244)—and the cruelty unleashed worldwide in the name of this value. Significantly, Derrida’s interest here, in conjoining a certain psychoanalytic reflection on cruelty with a discourse on sovereignty and rights, was an abiding preoccupation since at least the 1980s. In this vein, and for the purposes of the present study, it is helpful to situate Derrida’s late remarks on sovereign cruelty in relation to this broader inquiry into the psychoanalytic institution as a domain that might offer resources for a critique of the value of sovereignty and a renewal of the idea of human rights. To this end, “Geopsychoanalysis and ‘the rest of the world’” is a particularly helpful essay to consider because in this text Derrida delineates a set of coordinates for an engagement with psychoanalytic institutions that would ultimately find their fulfillment in his Death Penalty seminars and his address at the States General. The institutional context of “Geopsychoanalysis” is helpful to recall in returning to this essay. Although it was eventually published in Psyche: Inventions of the Other: Volume I, “Geopsychoanalysis” was originally delivered “at the opening of a Franco-Latin American meeting that took place in Paris, February 1981, on the initiative of René Major” (2007, 318), all of the presentations of which were devoted “above all to the institutions and politics of psychoanalysis” and initially “published in Confrontation (Green and Black collection) in 1981, in an issue that took its name from the lecture, with the subtitle: The Undergrounds of the Institution” (2007, 318). The second part of the title of Derrida’s lecture—“and the rest of the world”—in an important sense indexes these institutional preoccupations of Derrida’s address. For this phrase is, as he elaborates at the beginning of the address, a quotation taken from the 1977 constitution of the International Psycho-Analytic Association (IPA). More specifically, Derrida homes in on a sentence from this constitution that reads as follows: “(The Association’s main geographical areas are defined at this time as America north of the United States—Mexican border; all America south of that border; and the rest of the world)” (2007, 318). As Derrida glosses it, this phrase, “rest of the world,” is ultimately a placeholder for both Europe—“the land of origin and old mother country of psychoanalysis, a body covered with institutional apparatuses and tattoos”—and “all the places in the world where psychoanalysis has not yet set foot, so to speak.” What interests Derrida ultimately about this phrase, “the rest of the world,” is that it names both the origin or birthplace of

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psychoanalysis and the potential future of psychoanalysis—all those localities foreign to this institution heretofore. As Derrida goes on to elaborate, invoking the institutional context of his remarks, and in particular the fact that they take place “at the opening of a Franco-Latin American meeting that took place in Paris” (2007, 318), what interests him ultimately in this lecture is the novel status of this institutional event that actually names Latin America—as opposed to consigning it to the status of “the rest.” For Derrida, this question of the relationship between psychoanalysis and Latin America is ultimately connected to what he refers to as the “becoming-­world, this ongoing becoming-worldwide [mondialisation] of psychoanalysis” (2007, 319). Derrida then proceeds to describe the fortuitous series of events that led him to the IPA constitution and the phrase that forms the focus of this essay’s analysis. As he describes it, he happened to see the 144th Bulletin of the IPA and its report on the 31st Congress of the IPA in New York City and more specifically, his attention was arrested by the debate taking place within psychoanalysis, during this time, about whether voting by mail would be acceptable for this institution or whether voting should take place at the business meeting in present and in person. The position had been expressed there that “geographical and economic circumstances” (2007, 324) made it such that voting in person might be more complicated for Latin American Societies. From Derrida’s perspective, this invocation of geographical and economic circumstances can ultimately be read as a symptom and is connected to this IPA document that also invokes violations of human rights in specific countries in order to justify the non-­ extension of psychoanalysis to the rest of the world—“rest of the world” here functioning as an ideological trope that blurs the distinctions between particular countries. Referring to “the violation of human rights which has occurred in certain geographical areas” (2007, 326), this statement proceeds to declaim the use of psychological—or more specifically “psychiatric or psychotherapeutic methods.” While Derrida thinks that there is something positive about a psychoanalytic institution expressing this kind of formal commitment to human rights, he nevertheless expresses a series of questions about it. To begin with, Derrida notes that this precaution expressed by the IPA about the use of psychological knowledge to violate human rights in no way makes reference to psychoanalytic knowledge. As he observes, “Is there any other liberal Western institution that could not have made the same statement?” (2007, 327). Derrida’s worry, in other words, is that the IPA as a properly

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psychoanalytic institution has yet to respond to the question of human rights from the standpoint of psychoanalytic knowledge. And from this worry he draws the inference that if psychoanalysis does not qua psychoanalysis develop an analysis of the violences and violations of human rights in which it finds itself, this institution in turns risks becoming the instrument of them. As Derrida puts it, “This new weapon [psychoanalysis] would be at the disposal not only of what is confusedly called power, a power external to the analytic institution, which it could use in thousands of ways—including even the exploitation of certain effects of certain simulacra of psychoanalytic knowledge in technology of torture.” Moreover, Derrida also poses a critical question about the formalism of the IPA’s commitment to human rights and its unwillingness to refuse to name a particular geographical region. While such formalism is consistent with a certain universalistic tradition of human rights, and could even be salutary for the institution of psychoanalysis, insofar as it might produce a sensitivity among psychoanalysts to ethico-political problems of which they would normally be unaware, Derrida nevertheless wants to push the institution further. Derrida’s questions about this unwillingness of the IPA to name specific violence are worth citing at length: Why cannot the International Psycho-Analytic Association that Freud founded seventy years ago take a position in the face of certain kinds of violence (a word I hope will later be clarified at this colloquium) except with reference to a pre-psychoanalytic and even a-psychoanalytic juridical discourse and even to the most vague and impoverished forms of this classical juridical discourse, to those forms that most modern human rights jurists and advocates themselves deem most inadequate? (2007, 329)

What Derrida wants to suggest, in other words, is that psychoanalysis owes it to itself and owes it to the world to develop a more critical and properly psychoanalytic reflection on the question of human rights. By simply mimicking a popular ideology of human rights, the IPA not only fails to live up to the more radical aspirations of the human rights tradition but also fails to attend to the implications of psychoanalytic discourse to a reflection on rights. For Derrida, the statement from the IPA is ultimately symptomatic of the fact that although there has been much talk of the “‘psychoanalysis-and-politics’ type” (2007, 330), nevertheless today there exists “no political problematic or no code of political discourse that has rigorously integrated the axiomatics of a possible psychoanalysis, if

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psychoanalysis is possible. […] Just as no ethical discourse has integrated the axiomatics of psychoanalysis, likewise no political discourse has done so either.” What concerns Derrida ultimately about this non-relation between psychoanalysis and ethico-political discourses is the potential for the co-optation of psychoanalysis by power. This dissociation between psychoanalysis and an explicit reflection on ethical and political questions is what he believes has led to a statement such as this in which the IPA can only make general commitments to human rights. Speaking in particular about the formalism of the IPA’s statement, Derrida notes that it fails to consider what a “‘right’ might be that is contemporary with the fact of psychoanalysis” (2007, 332). Finally, Derrida notes that it isn’t even clear what tradition of rights that the IPA text refers to, betraying a general ignorance of the history of this tradition in its specificity. From Derrida’s perspective, this non-knowledge about international institutions and traditions of human rights is symptomatic for psychoanalysis—it “signals a state of psychoanalysis (as theory, practice, institution) that is not to be interpreted only as a delay […]” (2007, 334)—and until this symptom is analyzed, interpreted, and transformed, Derrida thinks that psychoanalysis and its schools will remain marred by “an occlusion […] that prohibits the effective emergence of an ethics and a politics contemporary with psychoanalysis” (2007, 335), which in turn will have meant that the theoretical advances of psychoanalysis have been incapable of “giving rise to institutions that integrate them” (2007, 336). Derrida also identifies this “essential occlusion” (2007, 336) in the proposed constitution of the IPA from its conference in Jerusalem in 1977. What disturbs him so deeply about this document is that “any classical institution whose object is knowledge in general, health, or humanitarian aid could subscribe to it [this Constitution]” (2007, 336) and that other than its invocation of Freud’s name there is nothing properly psychoanalytic about it. This rather classical and conventional approach to questions of law and right, Derrida thinks, is reflected in the conventional institutional structures of the IPA, which is figured as a kind of supra-state of psychoanalysis. In Derrida’s view, the dissolution of the IPA as an institution is to some extent something to be welcomed, but he nevertheless wants to also suggest that he does not believe that such a dissolution “should be followed by a wild state of simple non-law, which moreover is never possible” (2007, 337). Invoking an analysis of the law that we observed in the previous section of this chapter, Derrida notes that the transformation of the institutions of psychoanalysis—and in particular the

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dissolution of the IPA—will have the appearance of “savagery” (2007, 337) from the standpoint of the IPA, in this moment of transformation from one law to another. Ultimately Derrida’s address concludes with a normative judgment: “In certain given conditions,” he writes, “once a protocol has been established, to name can become a historical and political act whose responsibility is inescapable” (2007, 342–3), particularly for an institution like psychoanalysis that has committed itself not only to the naming but also amelioration of the effects of psychic violence. In sum, what Derrida derives from his analysis in “Geopsychoanalysis” are a series of theses about psychoanalysis as an institutional form: (1) despite the fact that analysts have developed a discourse on cruelty and violence, that discourse remains naive with respect to the institutional conditions of cruelty and violence; (2) even when psychoanalysis has brought itself to encounter the social and political world that has structured the violences it observes clinically, it has yet to speak to those violences in the register of psychoanalytic knowledge; (3) psychoanalysis itself is a worldly—and, perhaps more importantly, earthly—phenomenon that has come to be institutionalized at certain times and places and not others for reasons that are themselves worthy of analysis. What these theses point to in Derrida’s estimation are the task of an intra-psychoanalytic discourse on the institution of psychoanalysis and a psychoanalysis of institutions. At issue here would be the conditions for the possibility of psychoanalysis developing a discourse of testimony or truth-telling vis-à-vis the violences in the world that shape it and that it in turn might have a responsibility to intervene upon.9 Notably, for Derrida after the period of “Geopsychoanalysis,” the leading indicator of psychoanalysis’s failure to have assumed this task is that it has yet to give a sufficient account of the death penalty—or when it has 9  Derrida’s injunction to psychoanalysis is encapsulated well in this passage on torture from “Geopsychoanalysis”: “Even supposing that psychoanalysis could ground a rigorous discourse of nonviolence or—and this seems to me more problematic—of non-torture, it is not here, to this audience and while barely touching on the subject, that I would venture to recall how this is the very subject of your theory, your practice, and your institutions. On torture, you ought to have essential things to say—and do. And in particular on a certain modernity of torture, on that of contemporary history and therefore contemporary with psychoanalysis, which synchrony remains something to be interrogated in its many ramifications. At the very least, psychoanalysis ought to participate, wherever it is at work and in particular in its official representative structure, both national and international, in all the research under way on this subject. Does it do so? To my knowledge, no, or else it does so too discreetly” (2007, 353).

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done so it has always done so in an ambivalent fashion. As he observes in his seminar on the death penalty, with the exception of “a few words that Freud authorized Theodor Reik to sign in his name” (2002b, 303), psychoanalysis has yet to treat “the problem of the death penalty, and of sovereignty in general.” Derrida is here referring to a text called “Postscript: Freud’s View on Capital Punishment”—a text that, Derrida underscores, was not included in any work signed by Freud as the founder of the analytic institution, but instead appended and thus delegated to another text: Reik’s The Compulsion to Confess: On the Psychoanalysis of Crime and Punishment. In that book Reik had argued that psychoanalysis can—and one day should—replace punishment worldwide as the social institution responsible for addressing criminality. As Derrida traces throughout the second volume of his Death Penalty seminar, Reik claims that psychoanalytic knowledge entails a critique of the two prevailing paradigms in the philosophy of law that have been employed to justify punishment in general and the death penalty in particular: deterrence and retribution. Notably, although Derrida seems to accept at face value Reik’s skepticism about punishment’s effectiveness as a deterrent—according to Reik, psychoanalysis has shown that the prohibition of an act does not so much deter as it unconsciously incites its transgression—his attitude toward Reik’s critique of retributive theory is much more complicated. Derrida’s emphasis on Reik’s engagement with retributive theory is understandable given the overarching goal of his seminars on the death penalty: the development of a philosophical—and for Derrida that means rationally principled as opposed to merely utilitarian—basis for abolitionist discourse. For unlike theories of deterrence, which argue for or against punishment on utilitarian grounds, retributive theorists claim to justify punishment by appealing to pure reason alone; as such, for Derrida, the logic underlying the retributive justification for punishment in particular must be deconstructed if a principled abolitionism is to be possible. Such theorists, beginning with Kant, had argued that even if punishment were an empirically demonstrable deterrent or socially valuable, it would still be immoral—that is, at odds with pure practical reason—to punish a person by appealing to these reasons, since in so doing one would be treating the criminal not as a human person but rather as a means to some desirable social outcome. By contrast, since Kant maintains that human beings qua rational are ends in themselves, he claims that the only legitimate motive for punishment is that of honoring the rationality of the wrongdoer; in fact, he argues that all members of a human community, including even

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the criminal, are honor-bound by their rational vocation to sanction crime with punishment, independently of any question of what empirical good or ill might come of it. Moreover, Kant claims that the quality and quantity of this rational punishment should be calculated to equal the crime it sanctions; such a calculation is possible, he argues, insofar as the maxim underlying any criminal act can be shown to recoil upon the criminal, analytically entailing a punishment that is corollary to the crime. Thus, in the case of the death penalty, Kant will say that the murderer wills their own death.10 From Reik’s psychoanalytic perspective, however, this Kantian logic is nothing more than primitive sadism intellectualized, and its supposedly disinterested rationale for capital punishment is in fact structured by a disavowal of the murderous impulses of Kant’s community of so-called rational agents.11 Indeed, for Reik it is no accident that forgiveness is as foreign to retributive theory as it is to the unconscious, since the talionic code of the former mirrors the retaliatory logic of unconscious sadistic fantasies revealed in psychoanalysis. Thus Reik’s ultimate conclusion with respect to the institution of punishment is that whether it purports to be justified by a purely rational calculus (retribution) or by social utility (deterrence), punishment ought to be replaced by psychoanalysis— understood as a process of confession and expiation that has been decoupled from the physical penalties that had accompanied classical punishment—since only this body of knowledge is privy to the unconscious springs of both the desire for crime and the desire to punish. 10  Kant’s retributive logic is crystallized well in the following passage from his Metaphysics of Morals, which Derrida comments upon at length in the seminar: “But what kind of punishment is it that public justice makes its principle and measure? None other than the principle of equality (in the position of the needle on the scale of justice), to incline no more to one side than to the other. Accordingly, whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself. If you insult him, you insult yourself; if you steal from him, you steal from yourself; if you strike him, you strike yourself; if you kill him, you kill yourself. But only the law of retribution (ius talionis)—it being understood, of course, that this is applied by a court (not by your private judgment)—can specify definitely the quality and the quantity of punishment; all other principles are fluctuating and unsuited for a sentence of pure and strict justice because extraneous considerations are mixed into them” (Kant 1991, 473). For a more detailed discussion of the concept of “calculation” as it operates in Derrida’s seminar on the death penalty, see Kas Saghafi’s “Calculation” (2018), which helpfully situates Derrida’s writings on this theme in relation to Heidegger. 11  As Reik puts it: “Only the fact that mankind shrinks from psychological facts, from acknowledging the facts of unconscious emotional life, delays the victory of the concept of capital punishment as murder sanctioned by law” (Reik 1959, 473).

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In The Death Penalty: Volume II Derrida goes on to affirm this Reikian dream for psychoanalysis, but nevertheless underscores that Freud’s own silence on the death penalty betokens an internal ambivalence about this dream within the institution of psychoanalysis. In this vein, Derrida concludes the fifth session of The Death Penalty: Volume II, by articulating a wish he has for the future of psychoanalysis: “I would not want my irony on the subject of the worldwide-ization [mondialisation] of psychoanalysis to lead to misunderstanding,” he writes, clarifying that he believes one ought to “hope for the worldwide-ization of psychoanalysis, however uncertain, obscure, and indirect its paths” (2017, 134). What Derrida refers to as his “ironic” attitude toward this Reikian dream for psychoanalysis can be observed when he comments that, given Reik’s specifically Freudian understanding of the origin and scope of criminal impulses, if psychoanalysis really were to eclipse punishment as a social institution, then everyone would need to undergo analysis, and the number of analysts-­in-training would need to be exponentially increased. For insofar as Reik, following Freud, maintains that criminal impulses are motivated by unconscious guilt (contradicting both commonsense and the law, which hold that guilt is only ever possible after an actual transgression has occurred), and insofar as Reik, again following Freud, maintains that everyone is burdened by an archaic guilt wrought by the illicit fantasies of the Oedipus complex, it follows that for Reik’s dream to be fulfilled, there would need to be what Derrida refers to as a “worldwide autoanalytic treatment (because if everyone goes into analysis, everyone will have to join in, and there will have to be enough analysts to accommodate the totality of analysands, including Bové and Chevènment, on this enormous worldwide [mondialisé] couch)” (2017, 133–34). Derrida’s ironic reference here to Bové and Chevènment—two anti-­ globalists who would no doubt resist the institution of any mondialisé couch—is connected to a serious theoretical question that preoccupies him throughout this seminar as well as in his writings on psychoanalysis: the question of the relationship of psychoanalysis and the world (monde). In attempting to understand how Derrida’s engagement with psychoanalysis in general and Reik in particular relates to his abolitionism, it is thus first helpful to recall some of Derrida’s more general remarks on the concepts of world and worldwide-ization. To begin with, it should be noted that Derrida developed the concept of “worldwide-ization,” which has become the Standard English translation of the word mondialisation among his translators, during the late

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1990s and early 2000s, in response to what was then being referred to in English as “globalization.” Importantly, however, Derrida differentiates mondialisation from globalization by pointing out that the semantic root of the French word monde is, unlike the quasi-natural or geographical “globe,” a social and historical concept. At stake for Derrida in this difference between a thinking of the globe and a thinking of monde was a more responsible way of understanding the phenomenon that had been (in his estimation, naively) dubbed “globalization.” Specifically, rather than the inevitable product of a natural process, Derrida insisted on understanding such a phenomenon as the historical product of a specific—Western and, in particular, Christian—tradition; indeed, not only this process of mondialisation—this becoming-worldwide of Western metaphysics—but even the very concept of world, he argues, needs be historicized as the product of Western metaphysics. In this vein, Derrida believed that the responsibility of philosophers with respect to mondialisation was that of recollecting the system of Western reason so as to open up the possibility of its transformation. This deconstruction of reason is called for in part because of the link that he sees between reason and cruelty—the exploitation and death that has been dealt out as the economic, political, and juridical rationality of the West has been institutionalized worldwide. In particular, Derrida believes that the principle of sovereignty, founded in the right of the state to kill, constitutes the backbone of this rationality, so much so that by the time of The Death Penalty: Volume II he understood the task of his own philosophical practice, deconstruction, as “becoming or revealing itself finally as that which finds itself grappling, in order to deconstruct it” with the conceptual “scaffolding … of onto-theologico-political sovereignty” (2017, 2). Now, what the above passage on the “worldwide-ization of psychoanalysis,” as well as the rest of his engagement with psychoanalysis in The Death Penalty: Volume II, makes explicit is that Derrida sees psychoanalysis as potentially making a contribution to this project of decoupling reason from the metaphysics of sovereignty. Specifically, when Derrida affirms a commitment to the mondialisation of psychoanalysis during the seminar, he is arguing for something more than a merely quantitative increase in the number of analysts and analysands (although he surely also favors this too); he is further suggesting the need to locate psychoanalysis as a body of knowledge within a more general history of Western reason—that is, with identifying how psychoanalysis is imbricated in this conceptual and institutional history, but also how its findings might require a

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transformation of its basic assumptions and commitments. Derrida describes this task in the seminar as that of a “double problematization” (2017, 110)—a problematization of reason by psychoanalytic knowledge and a problematization of the uncritical inheritance of such reason by psychoanalysis.12 Such a task is called for because, as Derrida puts it in “Psychoanalysis Searches the States of Its Soul,” when it comes to the relationship of psychoanalysis to the specifically ethical, political, and juridical rationalities that are constitutive of the Western concept of world, one can speak of a “double resistance, both that of the world to psychoanalysis and that of psychoanalysis to itself as to the world, of psychoanalysis to psychoanalysis as being-in-the-world” (2002b, 262). That is, on the one hand, there has been a refusal on the part of economic, political, and juridical reason to take account of and incorporate psychoanalytic knowledge—to having their fundamental axioms modified by an exposure to the findings of psychoanalysis; on the other hand, there is internal to psychoanalytic discourse a resistance to the task of reflecting on its own worldliness or historicity. For Derrida, as I said, the leading symptom of this resistance is the apparent absence of a coherent psychoanalytic discourse with respect to the death penalty in particular and the value of state sovereignty more generally: on the one hand, he believes that psychoanalytic knowledge has something to say about these questions; on the other hand, he believes that it is no accident—and indeed, it is a symptom of psychoanalysis’s unconscious internalization and repetition of classical Western reason—that it has not developed a coherent discourse with respect to them. More specifically, as we will see, if psychoanalysis has been unable to testify to this violence it is because as an institution the analytic movement, in its own articulation, continues to internalize a commitment to this value of sovereignty in its own institutionalization. 12  From the time of his earliest essay on psychoanalysis, “Freud and the Scene of Writing,” Derrida understood psychoanalysis to occupy an ambivalent position within this history. On the one hand, insofar as it challenges the authority of the experience of consciousness, for Derrida psychoanalysis at least implicitly breaks with the principle that has organized metaphysical rationality: presence. On the other hand, Derrida also maintains that psychoanalysis, as a discursive tradition, has been marked by a resistance to acknowledging the ways in which its concepts are determined by classical metaphysical oppositions and categories. From the standpoint of deconstruction, Derrida thus “attempts to justify a theoretical reticence to utilize Freudian concepts otherwise than in quotation marks,” calling instead for an immense “labor of deconstruction of the metaphysical concepts and phrases” sedimented in Freud’s discourse (Derrida 1978, 197).

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This explains Derrida’s interest in the institutional context of Reik’s book, which in his estimation is the only instance in which psychoanalysis has seemed to take an official stand with respect to the death penalty. For The Compulsion to Confess not only elaborates a comprehensive psychoanalytic theory of crime and punishment, but in its final chapter, “Freud’s View on Capital Punishment,” Reik puts forth a statement on the death penalty that positions itself as having been authorized by the father of psychoanalysis: Freud. As Derrida shows through a line-by-line reading of the rhetorical gestures of this chapter, as well as some of Freud’s prefaces to Reik’s previous works, Reik speaks in the name of and with the father’s permission when he opposes the death penalty. For Derrida, one has to speak of Freud as the father in this instance because psychoanalysis here rearticulates the very Oedipalized structures that it describes in its own institution as a body of knowledge; in this instance, Reik’s recourse to an Oedipal account of the origins of criminality also Oedipally aligns his discourse with that of Freud’s. What might seem to be a breezy claim here by Derrida in The Death Penalty seminar is in fact a citation of a much longer reading that he had developed of psychoanalytic knowledge and its relationship to its own institutionality that had begun at least as far back as The Post-Card. In reading The Death Penalty it is helpful to have this early text in mind and in particular one of its chapters. In a section of that book called Legs de Freud, the second chapter of “To Speculate—on ‘Freud,’” his reading of Freud’s Beyond the Pleasure Principle, Derrida poses a question about the institution of psychoanalysis that would come to define his subsequent reflections on psychoanalytic theory. As is noted by Alan Bass in his translator’s note to the text, Legs de Freud is a bilingual pun—legs referring throughout the section to both anatomical legs (in English) and also “legacy” (the translation of this word from French into English). This bilingual, punning conjunction of legs and legacy is a rhetorical strategy on Derrida’s part to capture both a signature feature of Beyond the Pleasure Principle and the question of the mark left by the legacy of Freud upon both the science and the institution that he founded: psychoanalysis. More specifically, Derrida’s analysis of Freud’s Beyond takes as its cue a certain theoretical step [pas]—a step into philosophical speculation—that Freud permits himself to undertake in an ambivalent fashion; Freud’s text, whose title promises to take a theoretical step beyond the pleasure principle, also stages a two-step with respect to Freud’s own authority as the signatory or founder of psychoanalysis in the same manner we saw Derrida explore in

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the case of the U.S. Declaration. Namely, in speaking of a beyond of the pleasure principle—or what Derrida, again punning in French, abbreviates as PP (or pépé, father) Freud is also meditating on the beyond of himself, or his finitude as a founder of this institution and the requirement that, if psychoanalysis is to survive as an institution, it must take a step beyond its pépé. That is, Derrida proposes to read Beyond the Pleasure Principle as an autobiography—an autobiography not only of Freud but of the institution Freud founded. And the story that Beyond tells is that of the dominance of the PP—a certain economy or law of the household of this PP, according to which every deviation from its principle is recuperated by it. For Derrida, it is no accident that the second chapter of Beyond quite literally takes the form of autobiography: the famous story of Freud’s grandson, Ernst, who compulsively plays with a spool and ball, saying “Fort” and “Da,” here and there, in a motion mimicking Freud’s own theoretical movements vis-à-vis the PP, but also a set of intra-institutional political movements vis-à-vis psychoanalysis. Derrida reads in this narrative by Freud an identification of Freud with his grandson, describing the consequences of this scene as follows: The description of Ernst’s serious game, of the eldest grandson of the grandfather of psychoanalysis, can no longer be read solely as a theoretical argument, as a strictly theoretical speculation that tends to conclude with the repetition compulsion or the death drive or simply with the internal limit of the PP (for you know that Freud, no matter what has been said in order vehemently to affirm or contest it, never concludes on this point), but can also be read, according to the supplementary necessity of a parergon, as an autobiography of Freud. […] The autobiography of the writing posits and deposits simultaneously, in the same movement, the psychoanalytic movement. It performs, and bets on that which gave its occasional chance. What amounts [revenant] to saying in sum (but who is speaking here?), I bet that this double fort/da cooperates, that this cooperation cooperates with initiating the psychoanalytic cause, with setting in motion the psychoanalytic ‘movement,’ even being it, in its being itself, in other words, in the singular structure of its tradition, I will say in the proper name of this ‘science,’ this ‘movement,’ this ‘theoretical practice’ which maintains a relation to its history like no other. (Derrida 1987, 303–304)

What I want to suggest is at stake in this passage, and indeed at stake in much of Derrida’s interest in psychoanalysis, is the peculiar relationship to its own historicity that is characteristic of psychoanalysis as a science. What

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distinguishes this historicity? For Derrida, this is the relationship that this science maintains, in its tradition, with autobiography and the singularity of individuals—and in this case, the singularity of the founder of psychoanalysis. How so? Derrida’s claim here is that Freud’s insertion and staging of himself in this text is symptomatic of an insertion and staging of himself in the elaboration of psychoanalysis as a theory of mind. That is, the particular history and tradition through which psychoanalysis comes to be articulated by Sigmund Freud is a non-extrinsic feature of whatever theoretical statements that analysis might make; the intelligibility of this science—its scientificity and the status of all of its concepts—is bound up with this domestic scene. To the point that there is a kind of mirror effect between the content of Freud’s writing and the movement that writing propels. To the point that Beyond, as an autobiography, is an autobiography of itself as writing. Moreover, this autobiographical genre of psychoanalytic writing, Derrida wants to suggest, leaves its mark not only on the theory but also the movement of psychoanalysis—psychoanalysis as a tradition and as a finite historical phenomenon. Indeed, for Derrida, the story of the psychoanalytic movement is the story of an identification between patriarch and descendants, the story of a return to the PP, and in this respect psychoanalysis is ultimately distinctive as a science because it bears a fraught relationship to its own history—because it is a science that is qua institution indelibly marked and signed by a proper name, Sigmund Freud. In this respect, Freud finds himself enmeshed, Derrida thinks, in the same paradoxes of institutionality that afflicted Ponge, Jefferson, Benjamin, and others. Derrida ultimately crystallizes this observation about the peculiar historicity of the psychoanalytic movement in the form of a question about its institution: How can an autobiographical writing, in the abyss of an unterminated self-­ analysis, give to a worldwide institution its birth? The birth of whom? Of what? And how does the interruption of the limit of the self-analysis, cooperating with the mise ‘en abyme’ rather than obstructing it, reproduce its mark in the institutional movement, the possibility of this remark from then on never ceasing to make little ones, multiplying the progeniture with its cleavages, conflicts, divisions, alliances, marriages, and regroupings? (1987, 305)

Derrida’s question, in other words, concerns a certain paradox that psychoanalysis poses to institutional life: psychoanalysis is on the one hand

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autobiography—that is, the narrative of the life of the writing of a singular individual—and on the other hand a “worldwide institution.” For Derrida, what is ultimately at stake in this attendance to the autobiographical structure of the psychoanalytic movement is the fact that “to the extent that it constitutes a legacy and the institution of a movement without limit” it must also “take into account, in its very performance, the mortality of the legatees” (1987, 305). What is ultimately at stake for Derrida in this meditation on the life of the psychoanalytic movement is a meditation on death and the finitude of institutions and the participants that find themselves in this institution. For Derrida what Freud ultimately enacts in Beyond is a quasi-transcendental drive for mastery and self-preservation, but also the beyond of this drive and the chance to which history is always exposed.13 Thus, as was the case in Derrida’s close reading of the text of Beyond the Pleasure Principle and the relationship that it inscribes to the historicity of this institutional structure, so too in his reading of the status of Reik’s text, an institutional reading is at work. The question of the institutional status of Reik’s text is ultimately relevant for Derrida in particular because he believes that it explains why “Freud’s View on Capital Punishment” only arrives at an equivocal and somewhat unconvincing psychoanalytic argument for the death penalty’s abolition. As Derrida notes, the psychoanalytic knowledge that Reik, following Freud, appeals to in order to critique the sadism at the heart of juridical reason also entails a pessimistic conclusion about whether the abolition of this sadism is actually possible.14 This is because of the ahistorical and ultimately metaphysical appeal that both Freud and Reik make to the Oedipus complex in attempting to account for the psychogenesis of the criminal impulse. One can formalize this account as follows: Premise 1: Guilt does not follow, but instead motivates crime (and the desire to punish). 13  For a more detailed account of this drive for mastery that also puts Derrida’s discourse on psychoanalysis on this score into conversation with a Foucaultian notion of power, see Elizabeth Rottenberg’s translation and introduction to Derrida’s “Beyond the Power Principle” (2017). 14  In his “On Sovereignty, Psychoanalysis, and The Death Penalty” (2018), Michael Naas helpfully underlines this moment of Derrida’s analysis of Freud and Reik as an emphasis on “the Father as Exception” (79), showing how the logic of sovereignty Derrida traces in juridical discourses is also operative in the Freudian genealogy of the juridical described in texts like Totem and Taboo.

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Premise 2: Crime (and the desire to punish) is the fulfillment of a wish prohibited by the Oedipus complex. Premise 3: This complex is an original and universal feature of psychic life. Conclusion: Crime (and the desire to punish) is an original and universal feature of civilization.

What this ultimately suggests to Derrida—and this seems to me his core argument about psychoanalysis in The Death Penalty: Volume II—is that the mondialisation of psychoanalysis, or the particular manner in which it has been elaborated historically and institutionally, is structurally related to its phallocentrism, which betrays a commitment to an ahistorical and metaphysical account of the centrality of the Oedipus complex in psychic life.15 In other words, on the one hand psychoanalysis is committed to the abolition of the death penalty (and thereby also tacitly committed to the deconstruction of sovereign reason), having identified the roots of punishment in sadism; on the other hand, this very knowledge of the origin of criminal and punitive impulses, as stemming from the universal Oedipalized guilt of the primal horde, would dictate the impossibility of its abolition. As Derrida puts it: Once guilt is posited as the origin or the cause and not the effect of crime, we don't know which comes first: the possible crime or the prohibition of the possible crime. One has the sense that this is a bad way of posing the problem, of a vicious but unavoidable circle, analogous to the one in which one is both closed in and carried away by the fiction of the murder of the originary father. It could be the origin of ethics only because ethics was already there to make the sons or the brothers feel shame. Freud says that morality emerges from this shame and the need to expiate, but there was shame and expiation, conscious or unconscious avowal … only because, already at the time of the murder of the father and even before it, in the possibility of this murder, before the act, there was already something like ethics. (2017, 125–26) 15  As Derrida puts it, “Even when his good disciple Reik advocates, like Freud, the end of the death penalty and even the end of all punishment, which would be like an almost unimaginable upheaval of history, well, even then, an atmosphere of ahistoricity and atemporality reigns over these visions of the future. Not only because this worldwide confession and autoanalysis, this new transparency of humanity, would bring history to a stop, but also, and above all, because the avowal itself would only come to acknowledge a guilt prior to the crime, one that was thus prehistoric, fundamental, radical, and ineradicable: the Oedpius complex, the castration complex, penis envy, etc.” (2017, 239–40).

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It seems to me that this passage raises a few questions: What would this other ethics that is prior to and a condition for the possibility of the shame felt for the murder of the primal father be? What psychoanalysis would be required to theorize it? Are there resources within the psychoanalytic tradition for thinking the phenomenon of guilt or conscience beyond this phallogocentric circle? Does psychoanalytic knowledge in its totality really teach us that the development of the capacity for conscience always entails a proclivity toward crime and punishment? Is the only source of a capacity for concern—the shame and expiation of which Derrida speaks—the Oedipus complex? What I would like to suggest in the following section is that the first volume of Derrida’s death penalty seminar offers a potential indication of an answer to these questions that Derrida himself never quite pursues. As we will see, at first in the conclusion of Volume I of his seminar, and then again in this address at the States General, Derrida appeals to a certain concept of “life drive [pulsion]” (2014, 250) as the inspiration and justification of a psychoanalytically enriched commitment to abolitionism. Before turning to the passage in question, however, it will first be helpful to consider the argumentative structure of the first volume of Derrida’s seminar in order to see why Derrida is led to turn to this concept at its conclusion. For over the course of its 11 sessions and 283 pages, Derrida develops a painstakingly detailed interpretation of the death penalty— ranging from the history of its legal determination in state penal codes and international law, to its justification in Abrahamic religion and Western philosophy, as well as the opposition mounted against it in modern literature, and finally its representation in the politics and media of the United States—in a manner that ultimately shapes his final reflections on the life drive. Given the number of texts that Derrida considers, as well as the microscopic scrutiny to which he subjects each of them, one can easily lose sight of the seminar’s quite definite goal: the development of a philosophical argument against the death penalty.16 More specifically, Derrida believes the development of a coherent abolitionism will require raising certain “critical or deconstructive questions about the abolitionist discourse, about the logic that supports at present the abolitionist discourse,” which, 16  As Derrida clarifies at the beginning of the first session, in remarks that deviate from the prepared text of his lecture: “I say this briefly to indicate the direction. It is obvious that in my argumentation and in the pathos you will hear, my discourse is going to be abolitionist […]” (2014, 5).

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as we will see, ultimately leads him to a psychoanalytic thinking of the life drive. Sessions 2 through 8 of the seminar, which develop a genealogy of abolitionism, are largely dedicated to such questions. Above all, in these sessions Derrida is critical of what he refers to as the “anaesthesial logic” that has driven much opposition to the death penalty. Such a logic, pervasive not only in abolitionist discourse but also in the international Declaration of Human Rights, argues that capital punishment should be curtailed because of its gratuitous cruelty. In sessions 2, 3, and 4, Derrida persuasively demonstrates that this anaesthesial argument against the death penalty has been at best equivocal (as in the case of Beccaria, the father of abolitionism, who argued against the death penalty on the grounds that lifetime imprisonment would be a more effective deterrent— in other words, on the grounds that the death penalty is not cruel enough), and at its worst hypocritical (as in the case of the U.S. Supreme Court, which temporarily suspended the death penalty on the grounds that it was a “cruel and unusual form of punishment,” only to sanction its use later, once more anaesthetized methods of execution like lethal injection had been invented). As Derrida remarks, it is as if abolitionist discourse has been less opposed to the death penalty in principle as it has been opposed to the “cruelty of its application” (2014, 48). Throughout the seminar, Derrida tracks how discourse surrounding the death penalty has always been interwoven with such a desire to develop a “humane” form of punishment, not only among those who have sought its abolition (such as the French abolitionist lawyer and minister Robert Badinter, as Derrida explores in session 2) but also among the death penalty’s staunchest philosophical defenders (such as Plato, Kant, and Hegel, as Derrida explores in sessions 1, 4, and 5), as well as the advocates of modern technologies of the death penalty (the belief that the guillotine and other instruments of death-dealing humanely anaesthetize the instant of a criminal’s death is compellingly explored by Derrida in session 8). Derrida particularly faults this anaesthesial logic for its failure to question the juridical principle underlying the death penalty: the sovereignty of the state, its right over life, and its power to put to death. Throughout sessions 1 and 3, which owe much to Carl Schmitt, Derrida attempts to clarify this juridical specificity of the death penalty, arguing that what distinguishes this punishment from other kinds of state-sanctioned killing is that it is religiously authorized. As he observes, the death penalty has historically functioned as a more or less spectacular actualization of a juridical tie between the sovereign state and a religious authority; the death penalty,

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as Derrida puts it, has functioned as the “hyphen in the theological-­ political” (2014, 23). The upshot of Derrida’s analysis is that any argument for the abolition of the death penalty will need to call into the question the value of sovereignty as much as the cruelty that has always attended this value’s maintenance. In his attempt to develop such a principled opposition to the death penalty, Derrida considers the precedent of Victor Hugo’s abolitionism, and in particular the latter’s appeal to a natural law that asserts the inviolability of human life. Hugo’s writings are exemplary for Derrida in their insistence on the need to not merely curtail but to totally “destroy the death penalty” (2014, 102). For Hugo’s writings would appear to contrast with the abolitionism of Beccaria, as well as the contemporary discourse on human rights that his Of Crimes and Punishments influenced, which aver the right to life while also allowing the state to decide in exceptional cases to put its citizens to death. In other words, what distinguishes Hugo from classical abolitionism is that he would appear to affirm the inviolability of human life without exception—even when it comes to the exception asserted by a sovereign power. While Derrida ultimately subscribes to a modified version of Hugo’s affirmation of life, he nonetheless spends a significant part of the seminar considering Baudelaire’s critique of this strain of abolitionism. Namely, according to Baudelaire, far from being the timeless, principled, and disinterested argument against the death penalty that it purports to be, Hugo’s abolitionism is motivated by the self-interested desire to “save one’s own skin.” As Derrida observes, here Baudelaire echoes the philosophical tradition’s defense of the death penalty when he identifies Hugo’s affirmation of mere life with a regression to animality and femininity. Although Derrida believes that Baudelaire is not wrong to detect the interested character of Hugo’s abolitionism, he also develops a blistering critique of the supposedly disinterested defenses of the death penalty by way of Nietzsche’s genealogy of the institution of penal law. In this vein, Derrida spends much of session 6 reconstructing Nietzsche’s argument that a certain interest in cruelty underlies Kant’s apparently disinterested categorical imperative. Specifically, for Nietzsche, the principle of lex talionis that Kant justifies through the categorical imperative of penal law—the belief that there is a calculable equivalent between a crime (such murder) and its punishment (the death penalty)—can be traced to archaic commercial law, which stipulated that creditors had the right to inflict suffering upon their debtors if the latter failed to make recompense. According to Nietzsche,

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the root of this incredible belief in an equivalence between debt and violence is the sadistic pleasure experienced by the creditor in making the debtor suffer. Derrida compares Nietzsche to Freud in this respect, insofar as both seem to postulate an “originary cruelty” (2014, 159) at the foundation of culture. From this point of view, the apparently abstract and universal rationality justifying the death penalty—a rationality whose actualization in punishment supposedly places man above mere animal life—is in fact a rarified modification of what Freud would call the death drive. As Derrida observes, however, Nietzsche’s and Freud’s ultimately ahistorical and speculatively metaphysical conclusions about the pervasiveness of cruelty also suggest that it would be futile for any abolitionist discourse to attempt to get beyond institutionalized cruelty altogether either; as was mentioned above, throughout the seminar Derrida demonstrates how abolitionists have often spoken out against the death penalty or certain methods of its application while still advocating less grizzly forms of punishment. This is all to say that the principle of Hugo’s abolitionism— namely, the inviolability of human life—would not survive Nietzsche’s critique unscathed either, insofar as the latter conceives of life itself as driven by a recalcitrant desire to violate. In other words, Derrida’s invocation of Nietzsche raises a troubling question for his abolitionist project: “Can those who oppose the death penalty escape cruelty?” Such is the worry expressed by Judith Butler in “On Cruelty,” a review of Derrida’s seminar that was published in The London Review of Books at the time of its posthumous publication. For Butler, the only possible answer to this question that can be derived from Derrida’s seminar is in the negative. Although Butler is willing to concede that “Derrida’s move to expose the way that the abolitionists are implicated in the death drive has a certain intellectual appeal, resting as it does on a dialectical inversion by which those who oppose the death penalty are implicated in its cruelty,” they also believe that this appeal comes at the cost of reducing all abolitionism to a merely more seemly reincarnation of the death drive: Derrida’s position implies that the only route to an abolitionist position is through the violent suppression of the aggressive impulse, a redoubling of aggression that is now conveyed and amplified by moral instruments. But given that aggression can be interrupted by more relational orientations, why wouldn’t opposition to the death penalty emerge from those? […] So the problem with Derrida’s dialectical inversion is that it relies on the death drive, or its principal exponent, aggression, as the only motive operating on the scene.

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It seems to me that Butler’s question about the “more relational orientations” that might motivate abolitionism is the right one to ask. However, the conclusion that they draw in this passage about the capacity of Derrida’s account to answer it rests upon a conflation of his position with that of Nietzsche. Specifically, Butler confuses Derrida’s strategic mobilization of Nietzsche—in order to critique the supposedly disinterested defenders of the death penalty—with a full-blown endorsement of the latter’s metaphysics of the will to power; at the very least, their claim that for Derrida the death drive is “the only motive operating on the scene” would seem to presume as much. However, here it is important to note that Derrida does not actually embrace Nietzsche’s conclusions about cruelty wholesale. Specifically, for Derrida, Freud’s position on cruelty, which is much closer to his own, can be differentiated in one important respect from Nietzsche’s. As Derrida mentions in the concluding sessions of the seminar, and discusses at greater length in “Psychoanalysis Searches the States of its Soul,” while Freud joins Nietzsche in theorizing a cruelty without limit, he nevertheless also parts from Nietzsche in theorizing an opposable term to such cruelty: the life drive. As Derrida notes, for Freud the life drive—“the antagonistic force of Eros, love and the love of life” (2002, 272)—is always operating on the scene in a complex relationship with the death drive that Derrida first described in The Post-Card as “life-death [la vie la mort].” In closing this chapter I would like to suggest how Derrida’s appeal to the life drive in the final sessions of his seminar might point in the direction of precisely the kind of “relational orientations” that Butler suggests would motivate opposition to the death penalty.17 As Derrida makes clear in the ninth, tenth, and eleventh sessions of the seminar, while he believes that it is not possible for abolitionist discourse to indemnify itself a priori from the cruelty of the death drive, he also 17  For a more systematically reconstructed account of the life drive from a deconstructive point of view, see Alan Bass’s Difference and Disavowal: The Trauma of Eros (2002). More recently, Rosaura Martínez Ruiz has pursued the political implications of Derrida’s thinking of cruelty and the possibility of its mediation a la the psychoanalytic theory of eros or the life drive in Eros: Beyond the Death Drive (2021). The present study borrows from and is in dialogue with these works and aims to contribute to this discourse on the life drive, between psychoanalysis and deconstruction, an account of institutions as vectors for sadistic and erotic drives that Derrida began to articulate. For a more detailed discussion of the theme of “lifedeath” in Derrida’s writings, as well as an account of this theme that puts deconstruction in conversation with the sorts of material political concerns that I have suggested are his ultimate aspiration, see Robert Trumbull’s recent book From Life to Survival: Derrida, Freud, and the Future of Deconstruction.

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believes such cruelty is itself a defense against something even more primary: an “anxiety” (2014, 258) about the experience of finitude that in some sense, over the course of this book, I have argued to be the theme of deconstruction. For Derrida, the life drive—the love of life, the desire to live on, to maintain a relationship to some future-to-come—bears a necessary relationship to this anxious experience of finitude. As Derrida explains, in remarks that echo his engagement with Heidegger on this question in Aporias, it is only insofar as I am mortal, only insofar as my experience is inflected by an indeterminate relation to the possibility of my impossibility—a relation to some event that exceeds my possession—that it is it possible for me to affirm my desire to live on in the first place. In other words, for Derrida the life drive is not only generative of opposition to death and thereby perhaps the death penalty too, but is also generative of an anxiety about finitude that makes something like the death penalty (or, as Derrida also observes, suicide) intrinsically compelling as well. Specifically, Derrida maintains that the death penalty, as “the only example of a death whose instant is calculable by machine” (2014, 257), is compelling, not because human beings are driven by a biophysical imperative to cruelty à la Nietzsche, but rather because it offers the illusion of putting an “end to finitude”; “it affirms a power over time; it masters the future; it protects against the irruption of the other.” Moreover, “this experience is constitutive of finitude, of mortality, since this phantasm [of putting an end to finitude] is at work in us, even outside any real scene of verdict and death penalty.” As Derrida concludes, “[W]hat makes the death penalty in its so-called actuality so powerful is that through it we see a dream of our own ‘actually staged,’ we see in projection actually enacted what we are dreaming of all the time.” This leads Derrida to the startling inference that “it will always be vain to conclude that the universal abolition of the death penalty, if it comes about one day, means the effective end of the death penalty” (2014, 282)—that there will always be “some death penalty.”18 This claim also leads back to Derrida’s address to the States General of Psychoanalysis and in particular its subtitle: “the impossible beyond of a 18  Elizabeth Rottenberg helpfully pursues the psychoanalytic consequences of theorizing the desire to dream of the end of the death penalty at greater length, as well as how Derrida’s commitments to this dream differentiates his project of deconstructing the death penalty from Foucault’s critique of the prison in “A New Primal Scene: Derrida and the Scene of Execution” (Rottenberg 2018, 52–53).

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sovereign cruelty.” It seems to me that the conclusion of both the seminar and the address is that the persistence of something like sovereign cruelty—the drive to master finitude by putting the other to death—is existential. That is, on Derrida’s account, a certain anxiety about the precariousness of mortal life inheres in the very form of life itself, generating individual and even global phantasies of omnipotence that would disavow finitude through apotropaic spectacles of violence. Nevertheless, what Derrida’s avowal of a certain psychoanalytic concept of the life drive in both of these texts suggests is that “the chance of a pardon granted, of grace granted” (2014, 283) is coeval with this threat. A “beyond” of sovereign cruelty is “impossible” for Derrida, not in the sense that we are condemned to cruelty without opposition, but because the love of life, given to me by the other, places me in the double bind of this chance and this threat. The “impossible” of Derrida’s “impossible beyond of a sovereign cruelty” is thus not so much the dialectical inversion that Butler describes as it is what Derrida always referred to as a non-negative impossible: an opening or chance. Butler is in this sense right to say that those who oppose the death penalty on Derrida’s account cannot escape cruelty a priori, insofar as no law or norm could ever guarantee the abolition of either, and yet insofar as the condition for the possibility of such cruelty is an anxiety generated by the life drive and the experience of finitude—that is, by the relation of the self to some other that it affirms beyond comprehension—then something like a drive to mediate such cruelty is always operating on the scene a priori as well. While Derrida largely restricted his own reckoning of psychoanalytic knowledge vis-à-vis cruelty to Freud, it would seem that the task announced in these texts would also call for a consideration of other deposits that have been made to the archive of psychoanalytic knowledge of cruelty. If one wanted to develop an alternative theory of the psychogenesis of crime and punishment without the ahistorical and metaphysical stricture that seems to bind that of Freud and Reik, one could perhaps follow Butler’s suggestion and turn to Klein’s writings on the depressive position and early sadism, starting with a short paper that she wrote in 1934 called “On Criminality.” In this paper, Klein seems acutely aware of, and repeats, the Freudo-Reikian logic of crime and punishment—up to a point. Like Freud and Reik, she observes the same “vicious circle” (1975, 259) of guilt and criminality; however, Klein understands the sadistic, talionic fantasies described by Freud and Reik as a product of the Oedipus complex to be in fact the product of pre-Oedipal anxiety. In other words, she does not

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reduce cruelty to the Oedipus complex; for her, the motor of sadism— criminal, punitive, and otherwise—is an anxiety that might come to include, but is not ultimately reducible to, castration anxiety.19 Taken together, The Death Penalty seminars and “Psychoanalysis Searches the States of its Soul” point in the direction of an ethical and political task—to take account of psychoanalytic knowledge in the name of opposing sovereign cruelty—and also provide an example of what Derrida means in speaking of deconstruction as a form of institutional critique. Namely, Derrida’s deconstruction of the death penalty as an instance of unjust institutionalized cruelty—his mobilization of psychoanalytic knowledge and philosophical rationality to critique the rationality that structures this institutional practice—is the realization of a vision of distinctly philosophical critique of institutions that had been developing in his writings since the late 1980s and through this last phase of his oeuvre. Having traced this development, by way of conclusion, I will now turn to another case—the political lie—to consider some of the stakes and implications of the reading of Derrida that I have advanced here.

References Bass, Alan. 2002. Difference and Disavowal: The Trauma of Eros. Stanford: Stanford University Press. Benjamin, Walter. 1996. Critique of Violence. In Walter Benjamin: Selected Writings Volume I (1913-1926), ed. Marcus Bullock and Michael W. Jennings, 236–252. Cambridge: Harvard University Press. Butler, Judith. 2014. On Cruelty. London Review of Books, July 17, 2014.

19  It is perhaps for this reason that she does not reduce the phenomenon of conscience to the Oedipus complex, such that when it came to addressing this anxiety, Klein was not without her own hopes for a certain worldwide-ization of psychoanalysis: “When, in our analytic work, we are always seeing how the resolution of early infantile anxiety not only lessens and modifies the child’s aggressive impulses, but leads to a more valuable employment and gratification of them from a social point of view … we are ready to believe what would now seem a Utopian state of things may well come true in those distant days when, as I hope, childanalysis will become as much a part of every person’s upbringing as school education is now. Then perhaps, that hostile attitude, springing from fear and suspicion, which is latent more or less strongly in each human being, and which intensifies a hundredfold in him every impulse for destruction, will give way to kindlier and more trustful feelings towards his fellow-men, and people may inhabit the world together in greater peace and good-will than they do now” (1975, 257).

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Derrida, Jacques. 1978. Freud and the Scene of Writing. In Writing and Difference, 196–231, Trans. Alan Bass. Chicago: university of Chicago Press. ———. 1987. The Post Card: From Socrates to Freud and Beyond. Trans. Alan Bass. Chicago: University of Chicago Press. ———. 2002a. Force of Law: The ‘Mystical Foundation of Authority’. In Acts of Religion, ed. Gil Andajar, 228–298. New York: Routledge. ———. 2002b. Psychoanalysis Searches the States of its Soul: The Impossible Beyond of a Sovereign Cruelty. In Without Alibi, ed. Peggy Kamuf, 238–280. Stanford: Stanford University Press. ———. 2005. Rogues: Two Essays on Reason. Trans. Pascale Anne-Brault and Michael Nass. Stanford: Stanford University Press. ———. 2007. Geopsychoanalysis’ and the rest of the World. In Psyche: Inventions of the Other, ed. Page Kamuf and Elizabeth Rottenberg, 318–343. Stanford: Stanford University Press. ———. 2014. The Death Penalty Volume I. Trans. Peggy Kamuf. Chicago: University of Chicago Press. ———. 2017. The Death Penalty Volume II. Trans. Elizabeth Rottenberg. Chicago: University of Chicago Press. Derrida, Jacques, and Elizabeth Rottenberg. 2015. Beyond the Power Principle. The Undecidable Unconscious: A Journal of Deconstruction and Psychoanalysis 2: 7–17. Direk, Zeynep. 1998. The Renovation of the Notion of Experience, PhD Ds., University of Memphis. Fritsch, Matthias. 2006. The Promise of Memory: History and Politics in Marx, Benjamin and Derrida. New York: SUNY University Press. Gaon, Stella. 2019. The Lucid Vigil: Deconstruction, Desire and the Politics of Critique. New York: Routledge. Gustafson, Ryan A. 2015. The Life Drive of Derrida’s Abolitionism: A Review of The Death Penalty: Volume I. The Undecidable Unconscious: A Journal of Deconstruction and Psychoanalysis 2: 115–126. ———. 2017. Abolition, Phallocentrism, and the Mondialisation of Psychoanalysis. The Undecidable Unconscious: A Journal of Deconstruction and Psychoanalysis 4: 129–140. ———. 2021. Stella Gaon (2019). In The Lucid Vigil: Deconstruction, Desire and the Politics of Critique (Volume 14, No. 2), 228–235. Edinburgh: Edinburgh University Press. Haddad, Samir. 2013. Derrida and the Inheritance of Democracy. Bloomington: Indiana University Press. Hägglund, Martin. 2008. Radical Atheism: Derrida and the Time of Life. Stanford: Stanford University Press. Kant, Immanuel. 1991. The Metaphysics of Morals. Trans. Mary Gregor. Cambridge: Cambridge University Press.

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Klein, Melanie. 1975. On Criminality. In Love, Guilt, and Reparation and Other Works, 1921-1945, 258–261. New York: The Free Press. Martínez Ruiz, Rosaura. 2021. Eros: Beyond the Death Drive. Trans. Ramsey McGlazer. New York: Fordham University Press. Naas, Michael. 2018. Always the Other Who Decides: On Sovereignty, Psychoanalysis, and the Death Penalty. In Deconstructing the Death Penalty: Derrida’s Seminars and the New Abolitionism, ed. Kelly Oliver and Stephanie M. Straub. New York: Fordham University Press. Reik, Theodore. 1959. The Compulsion to Confess: On the Psychoanalysis of Crime and Punishment. New York: Farrar, Straus & Cudahy. Rottenberg, Elizabeth. 2018. A New Primal Scene: Derrida and the Scene of Execution. In Deconstructing the Death Penalty: Derrida’s Seminars and the New Abolitionism, ed. Kelly Oliver and Stephanie M.  Straub. New  York: Fordham University Press. Saghafi, Kas. 2018. Calculus. In Deconstructing the Death Penalty: Derrida’s Seminars and the New Abolitionism, ed. Kelly Oliver and Stephanie M. Straub. New York: Fordham University Press. Wood, David. 2002. Thinking After Heidegger. New York: Polity.

CHAPTER 5

Of Lies: A Concluding Post-Script

In this post-script, by way of conclusion, I would like to explore one application of the reading of Derrida’s theory of institutions that I have set out to reconstruct and defend here through a reading of Derrida’s 1994 paper, “History of the Lie: Prolegomena.” Specifically, here I would like to consider Derrida’s account of the role that institutions play in the creation of publicly accessible, factual truths, as well as his account of a certain historicity of the lie and the institutional conditions of lying and truth-telling as social practices. In considering truth, lies, and their institutional conditions, I will be led to consider more broadly the stakes of the reading of Derrida advanced here. More specifically, I close this study by considering the case of lying and testimony to the extent that these practices are the basis of narrativizing the sorts of violence that, as we have seen, Derrida proposed to critique in the mode of deconstruction; in so doing, I hope to consider another example of what deconstruction as a practice of institutional critique might involve for readers and inheritors of this philosophical legacy. Attending to the institutional context of “History of the Lie,” it is worth noting that Derrida delivered this paper at the Graduate Faculty of The New School, “within a year after Reiner Schürmann’s death from AIDS in 1993 at age fifty-six” (Derrida 2002, xii), as an address at a conference dedicated to the Schürmann’s works. Subsequently published in The New School’s Graduate Faculty Philosophy Journal and then republished in Without Alibi, in “History of Lie,” Derrida begins his remarks by © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 R. A. Gustafson, Derrida’s Social Ontology, https://doi.org/10.1007/978-3-031-41494-7_5

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inscribing two epigraphs from two former faculty of The New School within his introductory remarks: Schürmann and Hannah Arendt. “We will first hear from two thinkers whose memory we must honor here,” Derrida says, “their memory inhabits this institution” (Derrida 2002, 38–39), going on to note Arendt’s reflections on the history of political lying and Schürmann’s reflections on the relationship between the sacred (Heiligkeit) and history will frame his own interventions here. In this vein, Derrida notes that his title is both an invocation of Nietzsche’s famous fragment on lying collected in Beyond Good and Evil—“The History of An Error: How the True World Became a Fable”—and Arendt’s thesis concerning a specifically modern form of political lying. As becomes clear over the course of his paper, Derrida turns to these figures in particular in order to reflect not only on the historicity of political lies but also on the modern institutional structures that have secured the possibility of testimony and truth-telling. Derrida begins on this score by invoking what he refers to as “the classical and dominant concept of the lie” (2002, 33)—the concept of the lie that has prevailed within the philosophical tradition since Aristotle and that was defined in a Christian context in the writings of St. Augustine. Glossing Augustine, Derrida notes that for this dominant concept, “to lie is to want to deceive the other, sometimes even by saying what is true” (2002e, 31). In other words, lying in the strict sense would require a knowing intention to engage in—and not merely an accidental—deception of the other. As he goes on to clarify, for Derrida, the hypothesis that he will try to prove in this address is that “for structural reasons, it will always be impossible to prove, in the strict sense, that someone has lied even if one can prove that he or she did not tell the truth” (2002e, 34). This is because, as Derrida goes on to say, if the dominant concept of the lie makes a certain form of intentionality-to-lie a necessary condition of lying, this condition can never be met—or at least can never be determined to have been met—with certainty. Nevertheless, for Derrida it is important to begin with this, what he refers to as “the frank concept of the lie” (2002e, 36), because even if this concept is “unrefined and brutal,” it still “delimits a prevalent concept in our culture,” for which “no ethics, no law or right, no politics could long withstand, precisely in our culture, its pure and simple disappearance” (2002e, 37). Derrida’s claim, in other words, is that our world is founded upon and presupposes at least in principle this concept of the lie, as the intent to bring about deception in the other, as an axiom of morality and politics, such that, to speak about a history of the

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lie is also to speak about a transformation in the history of that moral and political culture. For “if such a concept, then, itself had a history, one that is not only ethico-philosophical but also juridical and political,” it would be possible to say that this conception of the lie that we have been bequeathed admits of multiple manners of legacy, inheritance, and transformation. Moreover, Derrida notes, not only lying as a “theoretical concept” (2002e, 38) would be caught up in a certain historicity, but so too would the practice of lying, such that what is called lying is “caught up in a becoming that risks always relativizing its authority and value” (2002e, 37). In order to consider these hypotheses, Derrida proceeds to two stories or examples, the first of which I will consider by way of conclusion. Namely, Derrida considers the case of Jacques Chirac’s recent statement at that time, upon his ascendance as the President of France, that acknowledged “the culpability of the French state under the Occupation in the deportation of tens of thousands of Jews, in the institution of a status des Juifs, and in numerous initiatives that were not undertaken only at the order of the Nazi occupier” (2002e, 46). Derrida considers the case of this speech act by Chirac for the question it raises: if Chirac is telling the truth and engaging the French state in an avowal of guilt, can one say that his predecessors had previously committed the state to a lie? As Derrida notes in raising this question, we would need to begin by noting that Chirac’s acknowledgment of culpability by the French state “is today judged to be a ‘crime against humanity’” and, for this reason, is itself founded upon the presupposition of a set of standing performatives that established the pertinence of this vocabulary in the first place as a social fact. In this regard, Derrida emphasizes the performative structure of Chirac’s act, invoking the vocabulary of declarations and signatures that we explored in Chap. 3, by noting that this speech act is “signed and sealed by a head of state elected by universal suffrage. It is publicly declared in the name of the French state, before the world, in the face of international law, in a theatrical act widely publicized by the written press, by radio, and television. The truth proclaimed by President Chirac has from now on the status, that is, both the stability and the authority, of a public, national, and international truth.” For Derrida, what is significant about this case of a declaration of historical truth is that this “truth concerning a certain history has itself a history,” to the extent that it has only been “legitimated, accredited, established as such more than fifty years after the facts in question.” Indeed, as Derrida notes, between the time of the events that this

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declaration invokes and the declaration itself there have been six presidents who have not endowed the events of the Occupation with this status: “Not one of them believes he was obliged to commit France, the French nation, the French state, the French Republic with a kind of signature that would have come to assume responsibility for this truth: France guilty of a crime against humanity.” As Derrida goes on to note, what is remarkable about such acts of declaration, such as this one by Chirac, is that in them “someone dares dissociate the concept of the state or nation from what had always characterized it, in a constitutive and structural fashion, namely, good conscience” (2002e, 47); as such, “however confused this event may be, and however impure its motivation remains, however calculated and conjectural the strategy, there is here a progress in the history of humanity and its international law, of its science and its conscience.” Moreover, as Derrida notes, the fact of this attestation of a truth about guilt raises questions to the extent that it suggests that truth is dependent in a fundamental sense on political interpretation and the mediatic representation of such interpretations. And this has consequences for the concept of the lie and its history. For one can ask: “Can one speak of lie, that is, of non-­ veracity where the truth cannot be stabilized” (2002e, 49), as had been the case in France prior to this moment? In this regard Derrida notes that Chirac’s successors refused to acknowledge something like a national guilt on the grounds that it did not recognize the Vichy government as an official entity of state, and thus although, for instance, Mitterrand was willing to acknowledge the guilt of that institution, he would not acknowledge the guilt of the French people as such. And this is what leads Derrida to connect this case to the history of the lie in question: Here then is a first series of questions: By not declaring officially what is now a historical truth of state, were former presidents, from de Gaulle to Mitterand, lying or dissimulating? Does one have the right to say that? Could they, in their turn, accuse Chirac of ‘lying’? Are any of them lying? Who lied and who told the truth? Can one speak here of lie? Is that a pertinent concept? And if it is pertinent, what would be the criterion of the lie? What would be the history of this lie? And especially, a still different question, what would be the history of the concept of the lie that would support such questions? (2002e, 50)

As I said before, Derrida pursues these questions by noting that Chirac’s utterance itself, rather than being possible in a vacuum historically, is itself

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founded upon a set of historical accomplishments—standing performatives—that it presupposes. Namely, as Derrida is quick to observe, the avowal of the events in France in the 1940s qua crime against humanity itself rests upon a set of “new juridical concepts, such as ‘crime against humanity,’ that are inventions and thus ‘performatives’ unknown to humanity before this” (2002e, 50). Derrida’s claim, in other words, is that the constitution of a set of international institutions, and a network of concepts that such institutions brought into force and presuppose in their operation, created the public space in which it was possible to “judge or even register such acts—which moreover were not identifiable as such” in the first place. Institutions, in other words, were required for testimony about these acts to be possible. For Derrida it is thus complicated here to speak of Chirac’s declaration as a confession for a lie to the extent that the manner in which he attests to these events is “historical through and through.” As Derrida notes in conclusion, “[W]herever the competence of the Nuremberg Tribunal is contested, the whole edifice that we are analyzing in this moment would be affected or even ruined” (2002e, 51). This is because the “objects in question, those on the subject of which a verdict is to be reached, are not natural realities ‘in themselves,’” but also “depend on interpretations […] performative interpretations.” Derrida’s point, in other words—and here he echoes decades later the language of “The Origin of Geometry” that we traced in Chap. 2—is that it is not as if there are historical things-in-themselves that were interpreted in some fashion at one time and in another fashion at another time, but that there is a “performativity at work in the very objects of these declarations: the legitimacy of a so-called sovereign state, the position of a boundary, the identification or attestation of responsibility are performative acts. […] For better and for worse, this performative dimension makes the truth, as Augustine says. It therefore imprints its irreducibly historical dimension on both veracity and the lie.” This facet of his analysis is what leads Derrida ultimately to his critique of Arendt for not having sufficiently recognized this structure in her own attempt to develop a history of the lie. Situating his critique of Arendt in the context of an article by Alexandre Koyré from 1943 on “The Political Function of the Modern Lie,” Derrida argues that Arendt’s notion of the modern political lie in some sense belongs to the terrain that Koyré describes. What Koyré questions, and that Derrida thinks Arendt is mistaken in not questioning, is whether the concept of the lie is the appropriate one to use to describe totalitarian deception. Noting that Koyré

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identifies a risk in admitting to the possibility that the concept of the lie may not be the appropriate one to describe totalitarian politics, Derrida intervenes to say that Koyré is not wrong to fear this risk, but that it ought to be “treated otherwise, each time taking into account, without any relativism, singular and novel historical situations” (2002e, 59). Noting that Koyré correctly notes that the eradication of the possibility of an objective assent to truth is a characteristic feature of totalitarian societies—instead subordinating objectivity to the spirit of a race, nation, or class—nevertheless Derrida thinks that Koyré is wrong for identifying totalitarianism with “pragmatist and activist” (2002e, 60) interpretations of truth as such. For, as Derrida is quick to point out, such a suspicion not only condemns in its judgment those totalitarian regimes but also “touches on any consideration of performative utterances” altogether, to the extent that the latter as a concept presumes that truth is the product of a socio-historically situated interpretation. As Derrida notes, “[T]he same suspicion would be aimed at any problematic that takes into account, for example, in the area of the political or rhetorico-techno-mediatic res publica, the possibility of institutive and performative speech (be it only testimony, which is always an act that implies a performative promise or oath and that constitutes the element, the medium of all language, including constative language).” Derrida’s claim, in other words, is that the morally responsive practice of truth-telling—testimony—itself presupposes the kind of performative acts of language that are ruled out by Koyré’s quick identification of any conception of language and truth that does not hold fast to the surety of objectivity as totalitarian. Rather than saying that Koyré is wrong to fear the possibilities of distortion and violence that are possible when one becomes open to the performative—which is to say social and historical production—of truth, his aim is to suggest that this predicament of historicity “must remain open, as both a chance and a threat, for otherwise we would no longer be dealing with anything but the irresponsible operation of a programmatic machine.” As Derrida goes on to describe, “ethical, juridical, or political responsibility, if there is any, consists in deciding on the strategic orientation to give to this problematic, which remains an interpretive and active problematic, in any case a performative one, for which truth, no more than reality, is not an object given in advance that it would be a matter of simply reflecting adequately” (2002e, 63). As he goes on to specify, shifting to a “problematic of testimony” from a “problematic of truth” is what Derrida believes is called for here. Namely, rather than resisting the perversion of historical events and the lies that are the

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alibi of such perversion by “establishing by law a truth of state” (2002e, 52), Derrida instead proposes that it would be better to do so by “reinitiating—interminably, if necessary, as I believe it will be—the discussion, the recalling of evidence and witnesses, the work and discipline of memory, the indisputable demonstration of an archive” that he identifies with “an infinite task.” As he clarifies, “[T]his does not mean that the state has to renounce its right or its law; but that one must remain vigilant to make sure it does not do disservice to the cause of truth that, when left to itself, always risks getting perverted into dogmatism or orthodoxy” (2002e, 52). For indeed, as Derrida notes, again citing Koyré’s analysis, it is a characteristic feature of totalitarian regimes to appeal to the stable metaphysical opposition of truth/lie and ground the force of their utterances upon the articulation and declaration of them as truths, such that “the more a political machine lies the more it makes the love of truth into the watchword of its rhetoric” (2002e, 62). Instead, then, of a moralizing denunciation of big lies, Derrida argues for the need to avow that politics itself is structured by the possibility of the lie, for better or worse—that there is “the possibility of this radical perversion and of its infinite survival” (2002e, 72). In closing, what Derrida points to in “The History of the Lie” is the need for thinking something like the historicity of not only the practice of lying but also the practice of testimony—that is, the practice of accounting for what has happened—in the context of a set of institutions that, rather than being stabilized by some sovereign decision, will always themselves be in deconstruction. For without this possibility of their deconstruction—that is, absent an acknowledgment of their historicity—there would be no chance for the performative production of those social facts, such as a “crime against humanity,” through which it has been possible to register particular moral harms. This moral salience of Derrida’s thought of historicity, and the manner in which it informs his reflections on “institutions” as the name for those units that structure socio-historical life, has been the theme of the previous three essays in which I have attempted to elaborate a novel paradigm for reading Derrida’s social and political philosophy. In coming to its end, it might be helpful then to elaborate in a nutshell the upshot of this new reading. In identifying the theme of institutionality and the quasi-­ontology of institutions that I argue is latent in Derrida’s writings as the substance of Derrida’s contribution to social and political philosophy, I have attempted to do two things: (1) offer readers of Derrida’s philosophy a roadmap for making sense of it, from the emergence of the deconstructive

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problematic in his earliest commentaries on the concept of history in phenomenology during the 1960s, to his last writings of the early 2000s that sought to affiliate this problematic with an idea of justice; (2) offer social and political philosophers a reconstructed set of concepts from Derrida’s oeuvre—historicity, declaration, signature, title, force, and right—that are the building blocks of a philosophical theory of institutions with an emancipatory intent. If this attempt to make sense of the project that Derrida called deconstruction has been persuasive, then it perhaps implies the need for a shift of orientation in what has come to be called “Derrida Studies.” For it seems to me that some of the recent trends in that discourse to deny the substantive normative implications of Derrida’s philosophy, on the grounds that such implications can only be theological or metaphysical, and to insist that deconstruction is a “logic” or any kind of formal procedure, need to be revised. At minimum one can say that this prevailing view of Derrida’s philosophical practice fails to account for the fact that Derrida understood philosophy itself to be a finite, contingent, historical phenomenon that finds itself inextricably in a world upon which it depends and about which it reflects. It is in part for this reason that I have insisted on reading Derrida’s oeuvre as the archive, not just of a theory of institutions, but as itself an exemplary philosophical engagement with and testimony about particular institutions. As an exemplar, that practice can only live on to the extent that it is read and inherited with attention, and such an understanding of deconstruction will always call for a reflection on injustice and cruelty in the present. For if Derrida is right that a certain tradition of thinking rights is worth affirming to the extent that this tradition renders itself answerable to an unconditional responsibility, then the meaning and sense of deconstruction in some sense will always find itself enmeshed in the institutional conditions of the world in which we find ourselves at present and at every passing present.

Reference Derrida, Jacques. 2002. History of the Lie: Prolegomena. In Without Alibi, ed. Peggy Kamuf, 28–70. Stanford: Stanford University Press.

Index1

A Abolitionism, 26, 159, 161, 169–173 Aporia, 4, 13, 24, 52, 68, 80, 81, 85, 101, 132, 140, 144, 174 Arendt, Hannah, 180, 183 Aristotle, 109n6, 119–121, 180 Atheism, 126 Austin, J.L., 6, 74, 76, 77, 83, 86, 93, 94, 96–99, 149 B Bataille, Georges, 35 Beccaria, Cesar, 170, 171 Blanchot, Maurice, 35, 106, 107 Butler, Judith, 172, 173, 175

Categorical imperative, 113, 124, 171 Cogito, 54, 56, 61–64, 66–68 Constative utterance, 11, 12, 76, 88, 98 Context, 3–5, 7, 8, 12–14, 16, 20, 21n2, 21n3, 23, 29, 30, 33, 34, 34n1, 36, 39, 44, 53, 76, 79, 80, 82, 84, 85, 89, 91–97, 96n4, 103, 107, 108, 110, 119, 132, 133, 145n6, 146, 154, 155, 164, 179, 180, 183, 185 Criteria, 77, 78, 102–116, 126, 134, 138, 148 Critical theory, 126, 131 Cruelty, 26, 129, 130, 152–154, 158, 162, 170–176, 173n17, 186

C Capital punishment, 130, 131, 133, 144, 160, 160n11, 170

D Death drive, 165, 172, 173 Death penalty, 6, 130, 144, 152–176

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 R. A. Gustafson, Derrida’s Social Ontology, https://doi.org/10.1007/978-3-031-41494-7

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INDEX

Declarations, 18, 22, 24–26, 30, 73–116, 130, 139, 181–183, 185, 186 Deconstruction, 1, 3–21, 16n1, 21n2, 21n3, 22n4, 23, 25, 26, 29–70, 74–76, 75n1, 79, 82, 122–135, 139n4, 140, 142–144, 146, 148–150, 152–176, 179, 185, 186 Democracy, 2, 6, 17, 21n3, 106, 119–123, 145, 146, 151 Descartes, Rene, 24, 34, 46n12, 50, 51, 53–64, 66, 81 Destruktion, 33, 43–50 Différance, 122, 123 Dissemination, 93, 98 Doubt, 2, 40n8, 53–55, 59–61, 63, 64, 66, 99, 161 E Empiricism, 41, 50, 57, 90, 101, 139 End of history, 29–35 Enlightenment, 10, 83, 127, 130, 144 Equality, 121, 160n10 Ethical turn, 123 Event, 8, 15, 19, 30–32, 63, 84, 85, 89, 91, 100, 105, 123, 136, 138, 140, 153, 155, 174, 181–184 Experience, 3, 9, 36–38, 42, 42n9, 46, 49, 54, 55, 61, 62, 64, 65, 67–69, 85, 87–89, 108, 109, 109n6, 113, 115, 122, 123, 126, 127, 132, 135, 136, 140, 141, 141n5, 144, 149, 163n12, 174, 175 F Fable, 18, 25, 82, 90, 101, 102, 111, 114, 116, 138 Finitude, 33, 39, 42, 43, 46, 49, 88n2, 165, 167, 174, 175

Force, 4, 9, 12, 14, 19, 22, 30, 43n10, 49, 65, 69, 77, 80, 81, 83, 86, 88, 91, 102, 114, 119–176, 183, 185, 186 Forgiveness, 124, 160 Foucault, Michel, 6, 23, 24, 33–35, 34n1, 50–67, 56n15, 69, 81, 89, 101, 138, 174n18 Foundationalism, 24, 33, 80, 101 Freedom, 13, 15, 16, 121, 122 Free speech, 9, 16 Freud, Sigmund, 6, 153, 156, 157, 159, 161, 163n12, 164–168, 167n14, 168n15, 172, 173, 175 Fukuyama, Francis, 29, 30 Fundamental ontology, 45, 79, 139n4 G Geometry, 36, 37, 39, 40, 40n6, 40n7, 40n8, 42 God, 31, 39, 63, 64, 66, 80, 81, 88, 88n2, 89, 116, 120, 137, 153 Good conscience, 142, 182 H Hegel, Georg Wilhelm Friedrich, 1, 30, 31, 45, 47–50, 47n13, 94n3, 170 Heidegger, Martin, 1, 6, 23, 29–36, 35n2, 43–50, 46n12, 47n13, 49n14, 65, 66, 75, 94n3, 114, 123, 124, 130, 139n4, 148, 174 Historicism, 23, 24, 31–43, 49n14, 50, 61, 62, 69, 73, 74, 80 Historicity, 5, 6, 22, 23, 25, 29–70, 73–116, 122–124, 129n2, 130–152, 163, 165–167, 179–181, 184–186 History, 6, 29, 73, 122, 180 Hugo, Victor, 171, 172

 INDEX 

Humanities, 16, 16n1, 19, 21n3, 39n5, 41, 51, 168n15, 182, 183 Human rights, 3, 16, 32, 83, 133, 144, 146, 154–157, 171 Husserl, Edmund, 6, 11, 23, 32–45, 35n2, 37n4, 39n5, 40n6, 40n7, 40n8, 42n9, 43n10, 46n12, 47–51, 49n14, 65n16, 94n3, 95, 96n4, 97, 98, 124, 130, 148 I Idealism, 23, 37, 43n10, 45 Idiom, 6, 105, 134 Illocutionary, 77 Infelicity, 76, 83, 90, 93, 98, 99, 149 Institution, 3–26, 21n2, 21n3, 22n4, 32–35, 34n1, 40, 41, 42n9, 44, 50, 53, 56–58, 67–70, 73–116, 119, 120, 123, 124, 130–132, 134–139, 141, 142, 144–146, 147n7, 148–176, 179–183, 185, 186 Institutionality, 5, 22n4, 25, 68, 73, 74, 76, 101, 103, 106, 131, 132, 146, 164, 166, 185 International Psycho-Analytic Association (IPA), 154–158 Interpretation, 3, 4, 7, 8, 11–15, 17, 30, 38, 44, 45, 53, 59, 61, 64, 74, 79, 80, 89, 94n3, 110, 136, 138, 139n4, 169, 182–184 J Jefferson, Thomas, 86, 87, 89, 100, 104, 106, 116, 146, 166 Judgment, 9, 45, 108–111, 109n6, 113, 127, 141, 158, 160n10, 184 Juridical, 3, 4, 6, 14, 17, 19, 25, 56, 83, 84, 103, 107, 108, 111, 112, 115, 116, 124, 131, 132,

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137–139, 139n4, 142, 145, 146, 149, 151–153, 156, 162, 163, 167, 167n14, 170, 181, 183, 184 Justice, 16n1, 25, 26, 30–32, 103, 109n6, 119, 121, 122, 130–137, 139–144, 139n4, 146, 160n10, 186 K Kafka, Franz, 25, 103, 106, 107, 110–116 Kant, Immanuel, 1, 7–12, 14–16, 19, 23, 113, 114, 130, 134, 142, 159, 160, 160n10, 170, 171 Koyré, Alexandre, 183–185 L Law, 5, 9, 14, 16n1, 20, 25, 32, 38, 48, 78, 83, 88, 99, 102–116, 120, 122, 131–152, 157–159, 160n10, 160n11, 161, 165, 169, 171, 175, 180–182, 185 Levinas, Emmanuel, 35, 35n2 Life drive, 26, 169, 170, 173–175, 173n17 Literature, 20, 22n4, 25, 83, 101–116, 131, 135, 169 Locutionary, 77 Logic, 5, 6, 8, 20, 25, 37, 41, 55, 56, 86, 87, 90, 108, 124–130, 134, 138, 146, 151, 159, 160, 160n10, 167n14, 169, 170, 175, 186 Lying, 38, 41, 179–182, 185 Lyotard, Jean-Francois, 6, 51, 107–110, 109n6, 112, 113 M Madness, 54, 55, 57–61, 63–67 Marx, Karl, 29–31

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Messianic, 31 Metaphor, 45, 46, 88, 90 Metaphysics, 23, 38, 41, 42, 43n10, 46n12, 47–53, 55, 97, 98, 120, 153, 162, 173 Montaigne, Michel de, 136–139, 139n4 N Nietzsche, Friedrich, 6, 142, 153, 171–174, 180 Non-philosophy, 51, 69 Normativity, 5, 24, 42, 80, 81, 124, 126–129, 131, 138, 139 O Ontology, 5, 20, 22, 25, 32, 35, 42, 44–48, 46n12, 50, 73–84, 105, 109, 116, 131, 139n4, 140 Ordinary language, 75n1, 83, 91, 93, 153 P Performative, 4, 10–12, 14, 15, 18, 19, 24, 25, 74, 76, 77, 82, 86–90, 93, 94, 96–100, 103, 107, 115, 116, 129n2, 135, 137, 139–141, 149, 181, 183–185 Phenomenology, 32–43, 47, 48, 50, 74, 86, 186 Philosophy, 1–7, 10, 11, 13, 14, 20–25, 21n2, 21n3, 29–40, 34n1, 35n2, 39n5, 42–53, 47n13, 49n14, 58, 60, 62, 63, 66–69, 73, 75, 75n1, 76, 79, 93, 94n3, 95, 101, 103, 113, 115, 120, 124, 126, 130–132, 134–137, 141n5, 142, 152, 159, 169, 185, 186

Philosophy of right, 2, 3, 7, 69, 80, 124, 130, 134 Phonocentrism, 94n3 Plato, 23, 94n3, 120, 121, 170 Platonism, 37, 39 Pleasure principle, 164, 165 Police, 58, 144, 145, 147, 148 Political, 4–8, 13, 17–19, 21n2, 22, 24–26, 29, 31, 33, 50, 55, 70, 74, 75, 82, 84, 87, 90, 93, 103, 119–131, 131n3, 135, 137, 139, 142, 144, 145n6, 148, 152, 153, 156–158, 162, 163, 165, 173n17, 176, 180–186 Ponge, Francis, 25, 102–106, 116, 166 Postmodernism, 51–70 Preface, 56, 57, 61, 62, 65, 84, 164 Presence, 29, 36, 46, 47, 94n3, 97–99, 106, 114, 140, 145, 163n12 Promise, 18, 31, 69, 84, 85, 88n2, 126, 148, 149, 164, 184 Psychoanalysis, 5, 6, 20, 26, 130, 131, 152–176 R Reason, 8, 12, 16, 17, 22, 31, 36, 37, 39, 42, 43, 43n10, 45, 46, 48, 49, 54, 55, 56n15, 57–65, 67, 70, 78, 79, 81, 91, 94n3, 103, 104, 109, 110, 112, 120, 126–130, 136, 139n4, 145, 152, 158, 159, 162, 163, 167, 168, 176n19, 180, 181, 186 Reik, Theodor, 159–161, 160n11, 164, 167, 167n14, 168n15, 175 Relativism, 5, 23, 24, 33, 38, 50, 90, 94n3, 136, 142, 184 Resistance, 10, 16n1, 17, 19, 163, 163n12

 INDEX 

Responsibility, 3, 5, 8, 10, 12–15, 18–20, 21n3, 26, 60, 69, 73, 79, 82–84, 90, 101, 114, 119–176, 182–184, 186 Rights, 2–4, 6, 7, 10, 12, 14–17, 22, 25, 26, 32, 53, 69, 78, 80, 82–89, 103, 106, 109, 111, 115, 116, 119–176, 180, 182, 185, 186 S Sadism, 153, 160, 167, 168, 175, 176 Schmitt, Carl, 145, 170 Schürmann, Reiner, 179, 180 Science, 33, 35–39, 39n5, 40n6, 41, 42, 48, 49n14, 57, 58, 68, 76, 81, 115, 152, 164–166, 182 Searle, John, 6, 25, 74–83, 75n1, 90, 101 Signature, 12, 22, 25, 73–116, 130, 135, 149, 164, 181, 182, 186 Skepticism, 19, 52, 60, 61, 66, 81, 133, 136, 139n4, 150, 159 Social ontology, 25, 70, 73–84, 101, 105, 116, 131, 151 Sovereignty, 9, 17, 19, 55, 89, 106, 120, 146, 153, 154, 159, 162, 163, 167n14, 170, 171 Speech act, 4, 11, 24, 25, 70, 74–76, 75n1, 79, 82–86, 89, 90, 92–94, 100–105, 133, 138, 181 State, 3, 9, 10, 17, 48, 58, 77, 78, 81, 85–89, 98, 99, 108, 131–133, 144–147, 145n6, 154, 157, 162, 163, 169–171, 176n19, 181–183, 185 T Teleology, 34, 35n2, 47, 48, 50, 69, 81

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Testimony, 5, 15, 18, 20, 26, 158, 179, 180, 183–186 Theological, 19, 45, 49, 88, 101, 120, 137, 138, 153, 186 Title, 2–4, 8, 14, 22, 32, 39n5, 46, 51, 73–116, 124, 130, 133, 154, 164, 180, 186 Tradition, 1, 3, 7, 14, 15, 23–26, 32, 33, 36, 37, 39, 40n8, 41, 42n9, 45, 46, 46n12, 48, 49, 53, 58, 68, 73, 75n1, 79, 83, 93, 94n3, 97, 98, 103, 106, 114, 116, 122, 124–126, 130, 132–134, 136, 137, 142, 144, 146, 147, 151–153, 156, 157, 162, 163n12, 165, 166, 169, 171, 180, 186 Transcendental, 1, 32, 33, 34n1, 36, 37, 41, 43n10, 45, 50, 56n15, 63, 113 Truth, 9–11, 16, 18, 25, 37, 49, 54, 55, 60, 64, 76, 92, 96n4, 97, 114, 137, 179–185 U Unconscious, 128, 160, 160n11, 161, 163, 168 Undecidability, 87 University, 5, 7–20, 21n2, 21n3, 79, 135 V Violence, 5, 62, 116, 133, 134, 137, 138, 142, 144–153, 145n6, 147n7, 156, 158, 163, 172, 175, 179, 184 W Walter, Benjamin, 132, 144, 146

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INDEX

Weltanschauung, 23, 33, 38, 39, 39n5, 49n14 World, 1, 4, 5, 7, 10–12, 14–19, 22, 24–26, 29–31, 38, 43, 63, 70, 74, 76–78, 80–83, 90, 96, 101, 120, 135, 139, 141, 142, 154–156, 158, 161–163, 176n19, 180, 181, 186 Worldwide-ization, 161, 162, 176n19

Writing, 1, 5–7, 20, 21n2, 21n3, 22, 22n4, 23, 25, 29, 32–34, 35n2, 36, 44, 45, 50, 53, 54, 63, 67, 73, 74, 75n1, 82, 88, 93–96, 94n3, 99, 100, 103, 105–107, 116, 124, 125, 128, 130, 133, 135, 141n5, 160n10, 161, 165–167, 171, 173n17, 175, 176, 180, 185, 186