The Philosophy of the Limit 1st edition by Cornell, Drucilla (1992) Paperback

by Drucilla Cornell

Deconstruction both by its friends and enemies has come to be associated with a set of cliches that completely misunderstands its ethical aspiration. It is particularly within the field of law that we can see the ethical force of deconstruction, and also illuminate its concrete and practical importance. In The Philosophy of the Limit Drucilla Cornell examines the relationship of deconstruction to questions of ethics, justice and legal interpretation. She argues that renaming deconstruction "the philosophy of the limit" will allow us to be more precise about what deconstruction actually is philosophically and hence to articulate more clearly its significance for law. Cornell explores the ethical and juridical significance of the so-called postmodern rebellion against metaphysics. A shared ethical rebellion links philosophers as different as Theodor Adorno, Jacques Derrida, Jacques Lacan, and Emmanuel Levinas. Together they present a new ethical configuration, new in its difference from both the critical social theory of J$u$urgen Habermas and the analytic jurisprudence of Nagel and Rawls. A key aspect of this newness is the centrality given to the relationship between questions of ethics and sexual difference. Cornell argues that the appeal of Lacan's analysis to feminists is that it helps to explain the profound hold the gender hierarchy has over Western culture, including its theories of political transformation. Under a Lacanian analysis the law of gender identity will be replicated in the laws of an existing legal system. This means that we cannot hope to sustain legal reforms unless the gender hierarchy is challenged. Cornell examines Derrida's position on the significance of the gender hierarchy in philosophy and explores its ethical and political importance. Derrida's intervention against legal positivism has important implications for the legal reforms necessary to protect marginalized groups. His emphasis on the limit, she argues, is crucial to thosewhose well-being and very lives may depend on legal transformation, women and homosexuals, for example. In an important contribution to legal philosophy, Cornell explores the affinities of Derrida's writings with recent liberal analytic jurisprudence. She also explores the differences. Comparing Rawls's and Derrida's accounts of justice, she argues that Derrida gives greater attention to the necessary utopian moment in his insistence on maintaining the divide between law, established norms, and justice. Cornell's focus on the importance of the limit and the centrality of the gender hierarchy allows her to offer a view of jurisprudence different from both critical social theory and analytic jurisprudence. As we watch the long-fought-for civil rights of women systematically overturned, we have reason to think about how the connections she makes shed light on an underlying truth of our social, political, and legal reality.

Genres: Philosophy

Unknown Binding

First published April 10, 1992

About the author

Drucilla Cornell is National Research Foundation Professor in Customary Law, Indigenous Ideals, and the Dignity Jurisprudence at the University of Cape Town in South Africa and Professor of Political Science, Women & Gender Studies, and Comparative Literature at Rutgers University.

Reviews

[James Askari · Rating 4 out of 5]

Cornell renames deconstruction 'the philosophy of the limit' to bring out how, for Derrida, thought does not adequate reality or succeed in 'going all the way down' (her conciliatory cast of mind has a great ability to make deconstruction sound like other movements in contemporary or loosely 'postmodern' thought, here Adorno's negative dialectics). The book is concerned to rehabilitate Derrida for debates in Anglo-American jurisprudence, perhaps more in principle than for actual use. For Cornell, deconstruction enacts an ethical relation to the other, without necessarily saying that it is doing so (or aspires to do so); to say this would be to reassert a primacy of self to other, or rest on a 'phenomenological asymmetry' in this regard, and--as Cornell relates in Derrida's reading of Levinas's post-ontology--recapitulate a tradition of ontological (more than epistemological) thinking in which the subject's privilege of knowing subordinates others to her experience. Ethics for the range of thinkers Cornell assesses in the book (Derrida as a sympathetic critic of Levinas, and also Adorno, Luhmann and Lacan) entails opening to a non-dominative and -violative relation to the other, a 'being-alongside' or a being 'otherwise-than-being', in Levinisian terms--a difficult project to describe without a fall into a language of being programmatically considered suspect.

The book is unusually sincere and available in, counterintuitively and often in polemical or at least combative fashion, presenting Derrida as a 'utopian' thinker whose 'double gesture' of deconstruction permits the possibility of social transformation. The 'double gesture' understands e.g. that the postulation, in Rousseau, of the origin of law in a state of full interpersonal reciprocity is a 'myth', yet holds that, in judging justly, we are bound to 'remember the future'. The law is endless deconstructible (we can always show that in deciding, judgment appeals to a precedent which it breaks, or from which it is necessarily independent), yet, in order to secure its validity (or operation), 'justice' can never be deconstructible. Derrida's stress on the potential transformation of a system of law in response to an ethical claim (from the 'outside', as much as in accordance with an internalised norm) distinguishes Derrida's legal thinking from that of systems theory, where the law develops (the system comes into contact with the 'environment') by projecting a future which is not of time or is purely an extension of the present. Derrida's deprivileging of the present through his conception of differance (traces of the past shoot through the present, which anticipates the future) is key to his critique of Luhmann. (Luhmann would understand difference rather as that which is assimilated in prompting a change of the system in terms of its 'information processing'; the system rests on norms, such as 'murder is wrong; murderers should be punished', but faces questions ascertaining facts regarding e.g. who is a murderer).

Though the chapters are clearly conceived as separate essays, the book builds a sequential argument in stating the affinities between Derrida and constructivist (i.e. non-positivist, non-quietistic or antifoundational) approaches in American jurisprudence. The introduction aligns Derrida with Rawls and against the neo-Kantianism of Habermas on the question whether the law is purely concerned with justice, leaving matters of the good to ethics. The centrality of tolerance means, for Rawls, that the law (or a series of 'overlapping consensuses' between different historical legal doctrines) sides in partiality with some rights, or claims to right, against others. The first chapter on Adorno mediates a figure in essential respects like Derrida and Levinas in wanting not to totalize a subject-centred cognitive or ethical schema. The next again finds common ground in the three thinkers in how they reject the Hegelian identification of existing communities' values as the norms that should determine legal decisions. There is always a tension between the Good (the principle that a legal system should converge on just outcomes), the Right (the discourse of justification for the subject) and existing constituted systems of law. A chapter treats remains, remnants or the unsublated (the junk picked up by the 'chiffonier') as a motif for what has resisted interiorization as the other of the self (this is sexual difference, for Cornell). Chapters on Derrida's deconstruction of legal principles claim that this does not licence a nihilism (a worry rehearsed, and respectfully listened to by Cornell, by Dominick LaCapra) in, for example, its being impossible to decide whether the founding violence of a new legal order (i.e. of a new nation; of revolutionary violence) is justified until well after the event. Rather, this acknowledgment of the 'non-ethical opening of ethics' (it begins not in an arche, but in delays, detours, writing and differance), although ethics has to concern others, emphasises the responsibility of the judge both to draw out legal principles and to heed the call of justice and 'be just with Justice'.