This Article examines the treatment of deconstruction in United States judicial opinions.' A handful of cases have directly referred to the French philosopher and literary theorist, Jacques Derrida.2 In each of these cases, the court has rejected Derrida's philosophy, apparently out of a fear that recognition of any legitimacy of Derrida's thoughts would lead to the self-destruction of the legal world. These courts have misunderstood that consideration or recognition of Derrida's philosophy in the legal context would not unavoidably lead to the end of all meaningful legal discourse in the United States. A discussion of these cases will serve as a springboard for an examination of traditional methods of legal interpretation, and how these methods interact with deconstruction.
Derrida's philosophy, which gave rise to the philosophy known as deconstruction, contends that in Western culture our conception of the world depends upon a logocentric view. One of Derrida's examples of this logocentrism involves the favoring of written communication over verbal communication. The hallmark of Derrida is his discussion of the internal contradictions of language which, undermine any contention that language is capable of uniform meaning.
The question of why judges are concerned with justifying or defending their decisions from the followers of Derrida?, is posed in this Article both generally, as a matter of legal interpretation, and specifically, within the context of the issue(s) presented in the examined cases. By examining the concerns articulated by the judges in these cases and then referring back to the writings of Derrida, this Article describes the likely outcome if Derrida's views of (legal)interpretation are in fact applied in judicial opinion-making.
In Parts II and III, this Article introduces the reader to important concepts in Derridean deconstruction. These concepts include notions of "privileging," "iterability," and the "free" play of text. Derrida's work is presented generally and is examined in light of his writings concerning law, justice, and authority. In Part IV, this Article demonstrates the protean nature of law3 by an examination of contract law. Part V examines the relationship of statutory law and common law as a doubling of the difficulties of applying law uniformly and coherently. As this Article demonstrates, the intent of the legislative body in enacting law is thwarted by individual judges' reading and writing of the law in the conjugation of caselaw. Finally, this Article demonstrates that the inherent difficulties in interpreting and applying laws lie in the relationship between the ultimate arbiter of law and the text of the law itself.
Madeleine M. Plasencia, Who’s Afraid of Humpty Dumpty: Deconstructionist References in Judicial Opinions, 21 Seattle U. L. Rev. 215 (1997).