As noted in the Introduction to the thesis, the problem of the rule of law is also the problem of modern institutionalisation, when an institution cannot depend on God,
44 Feminist legal scholars have been at the forefront of demonstrating why legal equality requires
the unequal application, or rather, the equitable application, of law. See, eg, MacKinnon’s concept of ‘substantive equality’: Catharine A MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989). See also Michael Rosenfeld, ‘Substantive Equality and Equal Opportunity: A Jurisprudential Appraisal’, California Law Review, vol 74 (1986); Sarat and Kearns, ‘Responding to the Demands of Difference: An Introduction’.
tradition, or any other transcendental source to secure its foundations, which ultimately come to rest upon—or rather in, and through—its subjects. The problem is that this inserts a contradiction into the basis of the institution: ‘it’ can never be absolutely identical with its subjects, whose difference defies such unity and closure; and yet it can never be absolutely separate from its subjects, who constitute its grounds as an entity.
Derrida considers this problem in his essay on ‘Declarations of Independence’, where he examines the act of articulation that is said to found an institution.45 The problem for Derrida is the inability to decide whether the
instituting act is constative—a mere statement of what is as matter of fact—or performative—bringing about the fact through the act of articulating what ‘is’. For instance, in the Declaration of Independence of the United States of America, which Derrida is examining, ‘the good people’ declare their freedom and independence. On one hand, this suggests a statement of fact (what is), which the Declaration then enshrines in law (as what ought to be). On this view, the instituting act, as an act of articulation, appears to make what is matter of fact into matter of right, by law. On the other hand, it also appears that the subject who signs the Declaration ‘by right’—the good people—creates its subjectivity in fact, as a free and independent people, through the act of signature. That is because, while ‘[t]he “we” of the Declaration speaks “in the name of the people” […] these people do not exist. They do not exist as an entity, the entity does not exist before this declaration, not as such.’46 The signature, as matter of right, therefore appears to create the signer, as
matter of fact, in a ‘fabulous retroactivity’ that transforms what ought to be into what is, the very condition for making ‘what ought to be’ into ‘what is’.47
This leaves two contradictory possibilities. As Derrida asks: ‘Is it that the good people have already freed themselves in fact and are only stating the fact of this emancipation in the Declaration? Or is it rather that they free themselves at
45 Jacques Derrida, ‘Declarations of Independence’, in Negotiations: Interventions and Interviews,
1971-2001, ed Elizabeth Rottenberg (Stanford: Stanford University Press, 2002). See also Seyla Benhabib, ‘Democracy and Difference: Reflections on the Metapolitics of Lyotard and Derrida’,
Journal of Political Philosophy, vol 2, no 1 (1994); Jacques de Ville, ‘Sovereignty without Sovereignty: Derrida's Declarations of Independence’, Law and Critique, vol 19 (2008); Bonnie Honig, ‘Declarations of Independence: Arendt and Derrida on the Problem of Founding a Republic’,
American Political Science Review, vol 85, no 1 (1991).
46 Derrida, ‘Declarations of Independence’, 49. 47 Ibid, 50.
the instant of and by the signature of this Declaration?’48 The first (constative)
possibility is a movement from fact to norm, whereby ‘what is now’ is recognized and enacted by law to bring about ‘what ought to be now’. The second (performative) possibility is a movement from norm to fact, whereby ‘what ought to be now’ is recognized and enacted by law to bring about ‘what is now’. The problem, for Derrida, is in deciding which of these movements is at work in the instituting act; and the resolution to the problem, Derrida argues, is precisely in its irresolution. The undecidability—the incoherent oscillation between the two positions—is ‘required to produce the sought-after effect’.49
Thus to begin with, the instituting act is clearly performative: ‘Such an act does not come back to a constative or descriptive discourse. It performs, it accomplishes, it does what it says it does’.50 And yet this performance remains
intentional, and not ontic;51 it requires an ongoing engagement by ‘the signers’, an
ongoing performance, for it to achieve what it says it achieves.
Although in principle an institution—in its history and in its tradition, in its offices and thus in its very institutionality—must render itself independent of the empirical individuals who have taken part in its production, although it has in a certain way to mourn them or resign itself to their loss, even and especially if it commemorates them, it turns out, precisely by reason of the structure of instituting language, that the founding act of an institution—the act as archive as well as the act as performance—must maintain within itself the signature.52
But this is problematic because it appears to leave an instituting act that ‘does what it says it does’, that can never finally achieve its intention, that can never quite do what it says it does—at least never yet. Without a solid, constative beginning, and without a solid, constative end, the institution becomes suspended in an ongoing performance, an endless deferral. Positioning both ‘beginning’ and ‘end’ in the instituting act, the foundations of the institution remain ever in need of founding. To have ‘the sought-after effect’—a constative state in which the instituting act actually does what it says it does—something has to ground this
48 Ibid, 49. 49 Ibid. 50 Ibid, 47. 51 Ibid.
52 Ibid, 47-48 (italics in original). On the significance of the ‘signature’, see also Jacques Derrida,
‘Signature Event Context’, in Limited Inc, ed Gerald Graff (Evanston: Northwestern University Press, 1988).
performance. As Derrida writes: ‘for this Declaration to have meaning and an effect, there must be a last instance’.53 In the case of the US Declaration of
Independence, ‘God is the name—the best one—for this last instance and this ultimate signature’.54 By appealing to God as the last instance, as what conjoins ‘the
to be and the ought to be, the constation and the prescription, the fact and the right’, the performative acquires a constative quality.55
The problem of institutionalisation raises two issues relevant to this chapter on the rule of law. The first is the paradoxical nature of the institution, which makes it simultaneously performative and constative. This returns to the discussion in Chapter 2 of the predicate sentence. On one hand, the instituting act, like the predicate sentence, is a play on and of words: by itself, it merely performs a synthetic function, stating ‘what ought to be now’ as ‘what is now’. Thus, by itself, the instituting act, as an act of articulation, represents nothing actual, or nothing more than what ‘is’, in its purest form, discourse—the stuff of ideology as much as idols. And yet: ‘It performs, it accomplishes, it does what it says it does’: the sentence on and of words becoming a sentence on and of life. Thus the institution remains intentional and not ontic, normative and not definitive; and yet it is nonetheless real, nonetheless empirical. On one side, there is an objectivity to it; it has determinate ‘position’, so to speak. On the other side, its foundations are subjective; and so to speak, it is positioned over an abyss.56 As a result, ‘it’ (the
institution as matter of fact) is enlivened by an other, or rather by others, who give it life, which is problematic because these others remain simultaneously separate and inseparable from the institution, undermining its integrity as an autonomous entity at the same time that they constitute it as an autonomous entity. This is the chasmic structure of the institution that I examined in the previous part of the chapter with regard to the definitive theory of the rule of law.
This chasmic structure of the institution gives rise to the second issue: how to respond to the contradiction? How to respond to a situation that appears to defy
53 Derrida, ‘Declarations of Independence’, 52.
54 Ibid. As the US Declaration of Independence states: ‘We therefore the Representatives of the
United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do in the Name and by the authority of the good People of these Colonies solemnly publish and declare, that these united Colonies are and of right ought to be
free and independent states.’ See ibid, 51.
55 Ibid, 51-52.
56 As the ‘abyss’ of ancient cosmology, the primordial ocean that underlies the earth, upon which
logic, where the institution is simultaneously objective and subjective, with a constative quality that is based on an ongoing performance? Or to use the language of the previous chapter: how to respond to a situation where the very thing that establishes ‘the context of the existential judgment’ (giving the institution its objectivity as an entity) is a subjective act, an act of articulation? This is the question that I consider in the remaining section of the chapter.