Law, Deconstruction, and the Resistance to Theory

Abstract

ideal. And this in turn gives rise to the history of variant legal creeds and philosophies, the debate between conservatives, liberals, and radicals all of whom adopt some particular view of how the balance can best be struck. What de Man suggests is that the rhetoric of law more specifically, the tensions that develop in its language between constative and performative modes may be at the root of these differences and affect them in ways not fully understood by exponents of this or that principled viewpoint. Now there might, on the face of it, seem little to choose between de Man's deconstructionist reading of the Social Contract and the arguments put forward by members of the critical legal studies movement. They also make practice of exposing contradictions and antinomies, pointing to areas where law is indeterminate, and claiming that judgments are arrived at not on the basis of impartial reasoning, or in pursuit of justice and truth, but always under pressure of competing political interests. Furthermore, they would appear to follow his example by treating legal discourse in rhetorical terms, as language that works to persuade, win over, or (most often) simply to coerce subjects into accepting the current institutional status quo. Any attempt to derive code of practice from first principles, rules, or natural justice is regarded by these delegitimising critics as ruse in the service of authority and power. Their main target is the doctrine of legal formalism, classically defined (in the words of Roberto Unger) as in the availability of deductive or quasi-deductive method capable of giving determinate solutions to particular problems of legal choice.39 This belief found its most articulate expression in the work of Hans Kelsen, the neo-Kantian theorist who sought to ground jurisprudence in self-sufficient system of priori concepts, ground rules, and regulative terms, and hence to save it from the looming threat of cultural and ethical relativism.40 This strong version of the formalist case has since been subjected to widespread criticism and nowadays has few adherents. But the doctrine survives, according to Unger, in current attempts to distinguish between questions that belong strictly within the province of legal debate, and issues that open into wider contexts of socio-political argument. Formalism in this sense can be defined more generally as a commitment to, and belief in the possibility of, method of legal justification that contrasts with open-ended disputes about the basic terms of social life, disputes that people call ideological, philosophical, or visionary.41 It is the aim of the critical legal studies movement to demolish the grounds of any such distinction, to show that legal reasoning is always bound up with particular interests, values, priorities, or visions of the social good. And this can best be