Tag Archives: Debate

Looking Ahead: Deconstruction and Justice

At first glance, my reply to Derrida’s claim “Deconstruction is Justice” is that of agreement. For all its clarity and poignancy, the answer is not easily deduced. To make sense how the agreement came to be, the internal workings of the text require critical analysis. The practice of deconstruction is to unlock provisional conventions and to make space for unanticipated patterns of being (Pavlich, p. 170). The presence of concepts and of definitions is at all times over the horizon. It is a reflexive relationship between openness and closure. The modus vivendi—our way of life—carried with our language and our text will always stand on the end of a new frontier. For Derida and all human beings, everything is language. The power of language and of words comes to define us, unite us, and separate us from others and from ourselves. To ascribe a single definition to a word is to take away its vitality. Justice, like language, is something that is in constant ebb and flow. Weber (2005) claims that justice is “of the incalculable and the unpredictable” (p. 38). It is through the process of deferring to other terms and to calculable externalities—such as law—where infinite concepts, like ‘justice’, may create “meaning, being, and presence” (Pavlich, p. 170). In this sense, one cannot revise a few definitions to the exclusion of all others.

The concept of justice is circular. The end is unknown and its beginning is undistinguished. From where I stand, Derrida (1997) is not mistaken when he claims that “Deconstruction is Justice”. The concept of justice is something that is on the verge of becoming but requires an externality to make it known. For instance, at one point in time it was legally permissible for a husband to rape his wife in Canada without legal ramifications involving responsibility (Criminal Code, 1970). In 1983, Bill C-127 was introduced into legislation to create space for conversation and to make martial rape a criminal offence. From this perspective, it can be said that justice could not be materialized in and of itself; it required the externality of law. Justice may also be observed as a measure that asks for or demands others to state what it is or what it is not. Although it is held that “law does not guarantee justice anymore than justice guarantees good law” (Pavlich, p. 173). Consequently justice, like deconstruction, is provisional and subject to reversal.

The concept of deconstruction is something that happens from within that which already exists or is said to exist. It is shaped by one’s sociological and political context (p. 174), which creates meaning and understanding through language. Deconstruction as a practice is holistic as it opens up concepts that have not been fully unpacked. For concepts and texts that appear fixed or fully understood, deconstruction becomes crucial. In summary, both deconstruction and justice are concepts that favour innovation and development; bridging the gap between theory and process, abstract and concrete. To deconstruct justice is to make possible the unattainable and provisional moments in time. Justice cannot be made a reality in and of itself. It is constantly evolving, changing shape and is in need of other words, subjects and objects that are not present. Life is not static and neither is the praxis of deconstruction or justice.

References

Bill C-127, S.C. 1983, c. 125.

Criminal Code of Canada, R.S.C. 1970, c. C-34.

Derrida, J. (1997). Deconstruction in a Nutshell: A Conversation with Jacques Derrida. Edited with a commentary by John D. Caputo. New York: Fordham University Press.

Pavlich, G. 2011. Law & Society, Refined. London: Oxford University Press.

Weber, Elisabeth (2005). “Deconstruction is Justice”, SubStance 34(1): 38-43

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Morality Within Law: Its Positively Natural!

For my second blog, or “musing,” I have decided to address the Hart-Fuller debate regarding positivism and natural law. Although I had originally intended on directly pursuing the “food for thought” topic for this week, our class discussion regarding the Hart-Fuller debate has proven far to enticing to not address. Moreover, I feel that a discussion regarding the Hart-Fuller debate, maintains the spirit of discussion as laid out in this week’s “Food For Thought.”

Before we begin the crux of this musing, we should first identify both Hart and Fuller, while defining their positions on law and legality. For the purposes of this blog, I will attempt a short and concise summary of each scholar’s contributions regarding the debate of morality within law(s).

Herbert Hart can be identified as a legal scholar/theologian who’s basic principles essentially suggest that even though certain laws may be seen as immoral, as we will see with the forthcoming Nazi example, they are still valid, binding laws as they have been both legitimately enacted and legitimately followed/enforced/maintained; as the issue of legitimacy is not in question, one cannot disrupt the validity of said laws by claiming they were never legitimate to begin with as the possessed zero moral grounds (Pavlich, 2011).

Lon Fuller, also a legal scholar/theologian, suggested law in itself contains morality to some degree, that this morality is what can be seen to justify and validate a laws legal authority (Pavlich, 2011). Furthermore, Fuller incorporated this concept of legal morality in his understanding of law making, by describing law making as the “craft of law making” (Pavlich, 2011). Fuller’s description of law making as a “craft” can be seen his prime indication that there is something more occurring within law than just simply legality. Much like any tradesman/tradeswoman, there are elements of intangible talent that one possesses in order to be considered “good” (Pavlich, 2011). This point is reflected by Pavlich (2011) when he continues to describe Fuller’s position by stating “the craft of lawmaking has what he calls a unique ‘internal morality’ that allows us to identify it, legitimately, as law” (p. 30).

The swell of the Naturalist/Positivist standoff came to a head during a post World War Two German court case where the legitimacy/validity of previous laws (laws enacted by the Nazi regime) were tested to determined whether or not those that had acted in accordance with specific Nazi laws had acted rightfully (legally) or not (Pavlich, 2011). For the purposes of this blog I will not go into great detail regarding the specific case at hand. However, so that everyone reading this is on par, I will continue with a summarized version of the proceedings:

A woman (living in Germany, under the Nazi regime), reported her soldier husband to authorities as he had mentioned to her that he was disappointed that a recent assignation attempt on Adolf Hitler had been unsuccessful; this was a crime at the time as the Nazi party had enacted laws to prevent and punish such communications. After the wife of the German soldier reported this to Nazi officials, the German soldier was arrested and sentenced to death. Although the death sentence was not carried out, he was sent to the front lines of the war; a technical death sentence at the time. After the war ended, and her husband surviving, she was charged and convicted under new regulations which declared the previous regulation(s) imposed by the Nazi regime to be invalid and as such, of no legal authority. (Pavlich, 2011).

With this case at hand, Hart and Fuller found themselves disagreeing upon the legitimacy/validity of the Nazi law the woman had “followed.” Although this debate can be seen as a battle between two men, in reality it is the collision of the two very differently minded legal positions, positivism and natural law.

Positivism would suggest that the woman, regardless of motivation, acted appropriately and in accordance with a justifiable law. Furthermore, positivism would suggest that if immoral, ulterior motives knowingly did exist within her decisions to report her husband, it would not matter as that is not the issue of debate. Positivism, through its perspective, sees no room for morality within in law. Moreover, one could suggest that positivism outright pushes away the sense of law entangled with morality. However, Fuller and natural law theorists would have us believe otherwise.

Natural law theorists would suggest that any law based on injustice or immorality loses its credibility and validity, ultimately striking away its power, disregarding the law altogether. Essentially, this removes any perceived legal responsibility on the part of those the law would normally regulate. Furthermore, natural law theory can be seen to suggest that an outside source of justice must exist for anyone to make this claim. For if we are able to suggest that a law, even one legitimately enacted, retains no power due to its immorality, a separate barometer of right and wrong must exist outside the spectrum of law.

When all is said and done, I find myself leaning toward, and ultimately siding with, Fuller’s position. Although Hart’s position is quite logical and understandable, especially when looking at his scathing critique of the naturalist position, I cannot but help remember the quote by great legal scholar/theologian St. Augustine, “an unjust law is no law at” (Pavlich, 2011, p. 22). Furthermore, one could suggest the post World War Two courts agreed and sided with the Naturalist position, as the woman charged in the case study, was eventually convicted on the ground that the Nazi enacted law retained no legal authority, regardless of its legitimate creation.

Ultimately the validity of law remains within its inherent morality, as no single individual would agree to be ruled by laws and regulations that were not at least based on some moral underpinning; at the very least ones own personal moral underpinning. Suggesting legal rules and regulations are exempt from moral reasoning and rationale is absurd and should be extinguished. Law is not intended to be arbitrarily created, enacted or altered, as though it is a child’s playground where rules are made at whim in order to satisfy those in charge. Laws are intended to be basic, fundamental rules and regulations that we as a society agree upon, social, guiding principles that remain true yesterday, today and tomorrow. As far I’m personally concerned, positivism, although well-intentioned in its focus, neglected to give weight to the intangible elements of law and society, giving way to cold, calculated machine-like perspective on legality; not surprisingly embraced by the cold, calculated Nazi regime. Ultimately, it is my view that positivism failed in its attempt to dehumanize regulations intended to govern humans, and that appears ironically irrational.

Note*

Below is a link to an interesting article discussing the compatibility of law and morality. Additionally, I have included a video that attempts to break down and explain the debate between Natural Law and Positivism, enjoy.

Article:http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1185&context=wmlr&sei-redir=1&referer=http%3A%2%2Fwww.google.ca%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dhart%2520fuller%2520debate%2520articles%26source%3Dweb%26cd%3D14%26ved%3D0CDEQFjADOAo%26url%3Dhttp%253A%252F%252Fscholarship.law.wm.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1185%2526context%253Dwmlr%26ei%3DC2lmUJLUFqXgiwLaoIDIBg%26usg%3DAFQjCNExIPwJ1TiRNmgmnR5qWZnyFKhY1Q#search=%22hart%20fuller%20debate%20articles%22

Video: http://www.youtube.com/watch?v=ge7UowL0d3U

References

Pavlich, G. (2011). Law and Society Redefined. Ontario, Canada: Oxford.

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