Bong Chul Choi - Postmodernism and Postmodern Judgment

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POSTMODERNISM AND POSTMODERN JUDGMENT

Bong-Chul Choi*

I. Introduction

This article attcmpts to give the term "postmodem" its due and proposesthat legal academics take postmodernism seriously. I dare to say that onlya few people know how to deal with the term as of yet. In pursuing theproper meaning of the term, I have the Korean context in mind. Some mightassociate the postmodern with the notion of a historical period and relateit to post-industrial society. If the term postmodern conveys such an implica-tion, it should be rejected. The postmodern or postmodemism should beregarded as a type of mood, attitude, thinking and living which is foundeverywhere. If one understands non-Euclidean geometry or Heisenberg, ifone feels affection for Eckhardt or Nietzsche, if one does not despise theteachings of Buddhism, Taoism or what might be called the Eastern wayof life, if one suspects a dichotomy in fact and value, science and ethicsor living and working, if one does not conceive of the Enlightenment asthe most worthy historical product, he/she is already postmodern.

Throughout this paper, I reconstruct postmodemism mainly by relyingon the ideas of contemporary French thinkers. However, I do not intendto assert that the postmodern is product of only French thinkers; rather,French postmodemism can be understood as a version of, and a part of,postmodernism. There are many versions of postmodernism. I imagine thatthe common elements which hold various versions together could be therecognition of the unnameable and the demand of struggle with it. In thispaper, I will not try to construct a Korean version of postmodernism, buthope this paper will convey how near postmodemism is to us.

In the latter part of this paper, I will show a postmodern judgment.

* Assistant Professor of Law, Hong-Ik University ; LL.B., LLM., Seoul National University;

M.L. L, SJ.D, University of Wisconsin Law School.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

The text upon which I rely is Jacques Derrida's "Force of Law : The MysticalFoundation of Authority."' Derrida's writing may, be hard to understand,because he creates his own terminologies, finds his arguments on contempo-rary philosophy of language, and above all, wants the readers to stand inhis own territory. Some might complain of Derrida's writing because of itslack of transparency and plainness. However, I think he performs his bestwhen he writes ; he regards writing not merely for communication but alsofor performance. Although reading his work is difficult, his closures are surp-risingly ordinary.

This paper is composed of two parts. In the first part, I try to properlyconstruct the term "postmodem" as it should be in the Korean context.In the second part, I show a type of postmodern judgment by examiningDerrida's "Force of Law." My implicit claim in showing it is that postmodernjudgment be discussed.

I. Defining the Postmodern

A. Short History of the Term "Postmodem"

In order to give the term proper meaning, I will look into the historyof the term. Scholars have traced the origin of the term to as far backas 1930s. In 1934, Federico de Onis, a Spanish literary critic, used it todescribe Spanish and Latin American verses which appeared to react againstmodernist decorativeness. In 1939, Arnold Toynbee used the term 'post-modem age' to describe the period from World War I onwards ; later, in1954 he expanded his definition to include from circa 1875 on. Accordingto Toynbee, the postmodern age is marked by the rise of a new industrialurban working class in the West, along with the growth of other non-Westernproletariat, non-Christian religions, cult, and new sciences. Despite de Onis'

1 Jacques Derrida, "Force of Law : The Mystical Foundation of Authority," CardozoL. Rev.(1990) " 919-1045. Later, this article appeared in a book Decontniaion and thePossibilitey ofJustice (New.York : Routledge, 1992).

1995) POSTMODERN JUDGING

and Toynbee's use of the term, it did not gain wide repercussions amongthe people.

The wide usage of the term must be attributed to the intellectuals inthe fields of architecture, visual and performing arts, music, and literaturein the 1970s and 1980s. Leslie Fiedler raised the question of what forma new postmodernist criticism might take, and proposed that postmodernistliterature cross the gap between high and popular culture, expanding onthe popular. Ihab Hassan, literary critic, claimed that the postmodern texts,whose representative is Finnegan's Wake, include the writings of Barth, -arthelme,-ecker, -ense, -lanchot, -orges, -recht, -rroughs, -utor. His criteria for the post-modem text includes not only indeterminacy, but also certain elements ofmodernism like urbanism, technologism, dehumanization, primitivism, eroti-cism, antionominalism experimentalism, and so on. He does not designatepostmodemism as a break from modernism so much as a continuation ofit in that it carries the modem elements forward toward the postmodern.Charles Jencks, a critic of architecture, sets up the criteria of postmodernism.He calls it 'double-coding' by which he means "the combination of moderntechniques with something else (usually traditional techniques)."2 His post-modern aesthetics of double-coding does not aim to achieve integration, orsynthesis among different forms and styles so much as to preserve irony,ambiguity, and contradiction among them in order to create the momentof anamnesis or return to the absent center. To him, the postmodemismpresented by Jameson, Lyotard, Baudrillard, Hassan, etc., was late-modernismwhich "still committed to the tradition of the new and does not have acomplex relation to the past, pluralism, or the transformation of Westernculture - a concern with meaning, continuity and symbolism."3

Since the late 1970s there has been a shift in the discussion over post-modernism. One factor causing the shift is the influence of the French thinkerssuch as Lacan, Foucault, Derrida, Lyotard and Kristeva. These thinkers cameto be widely discussed by writers on postmodemism, and they finally obtai-

2 Charles Jencks, What Is Postmdemism ? (New York " St. Martin's Presss, 1987), 14.3 Id., 38.


ned the label of postmodemists though most of them remain indifferentto or even critical of the term postmodem.

Along with the French influence, the discussion over postmodemismhas no longer been confined to issues of artistic matters ; it has been extendedand spilt over into the broader study of cultural complexes. Scholars haveidentified certain cultural manifestations as postmodem, investigating whythey have become so prevalent and what their potentials are. Jean Baudrillard,Fredric Jameson and Terry Eagleton are representatives. They have takenpessimistic and negative views on postmodem culture and thought. Baudril-lard estimates postmodem culture as the cultural tendency from the mimicryof pseudo reality through the simulacrum and finally to whole destructionof meaning, i.e. one-way street whose end erases all the differences.

Fredric Jameson, in Postmodernism or the Cultural Logic of Late Capitalism,4 assertsthat postmodemism is simply the cultural product of the logic of late capita-lism. According to his analysis, the characteristics of postmodem elementsare the new depthlessness, the replacement of historical explanation by awhole culture of the image or the simulacrum, and the appearance of aschizophrenic or decentered subject, and diagnoses their prevalence as theeffects of the market's decentered logic leading to an ever greater globalpenetration and colonization. For a way-out, he proposes an expanded depth-wish able to offer more comprehensive accounts and stronger theories.

Terry Eagleton, in The Ieology of Aesthetics,5 asserts that the postmodemistculture is janus-faced. It is radical and iconoclastic but at the same timeconservative and incorporated. Like Jameson, he sees the postmodem assaulton bourgeois high culture, the critique of the replete subject, and the hostilityto uniqueness and distinction as arising from the very logic of commodityin late capitalism. According to him, "the commodity is transgressive, promis-cuous, polymorphous : in its sublime self-expansiveness, its levelling passionto exchange with another of its kind, it offers paradoxically to bring low

4 Fredric Jameson, Postmodrism or the Cultural Logic of Late Capitalism (Durham DukeUniv. Press, 1991).

5 Terry Eagleton, The Ideology of Aesthetics (Cambridge, MA : Basil Blackwell, 1990).


the very finely nuanced superstructure which serves in part to protect andpromote it."6 Therefore, the logic of commodity is welcomed to consumptionmanagers, but unacceptable to production regulators who wish to preservetheir uniqueness, difference and privileges.

After pointing out the postmodemism's dependency on commodity eco-nomy, he criticizes postmodem projects such as Foucault's and Lyotard's.He thinks that their confrontation with the unknowable source is so dange-rous that they are not capable of blaming terror. He says, "What is valuableabout the Idea (of Lyotard) is that it permits us to think outside of habit,of received opinion, which is no doubt as accurate a characterization ofMussolini as it is of Mayakovsky."7 Instead, he proposes that all humanprojects start with the recognition of such basic needs as food, shelter, associa-tion, protection from injury and so on, which he regards as firm biologicalnature: otherwise they are hubris.

Jean Francois Lyotard in The Postmodem Condition,8 a key text in the diffusionof French postmodemism, defines the postmodern condition as 'incredulitytoward the metanarratives,' while designating the modem as what legitimizesitself with reference to metanarratives, for example "the dialectics of spirit,the hermeneutics of meaning, the emancipation of the rational and workingsubject, or the creation of the wealth."' At the beginning of this book, Lyotarduses the term postmodem as a periodizing concept and as a correlationto the postindustrial as well. According to him,

our working hypothesis is that the status of knowledge is altered

6 Id. 374.7 Id, 399.8 Jean-Francois Lyotard, The Postmderm Condtion : A Report on Knouledge (Minneapolis : Univ.

of Minnesota Press, 1984). Barry Smart's initial configuration of the layers of Lyotard'spostmodem theory is useful. He contends the term postmodern in Lyotard has three conno-tations. First, an aesthetic sense of the term ; second, deliberations on the current conditionof knowledge; third, a conception of postmodernism as a politics of resistance. BarrySmart, Modern Conditiom, Postmk-krn Contrersies (London and New York : Routledge, 1992),175-176.

9 Id, xxiii.


as societies enter what is known as the postindustrial age andcultures enter what is known as the postmodern age. This transitionhas been under way since at least the end of the 1950s, whichfor Europe marks the completion of reconstruction.'

His characterization should not be understood without condition. I wishthat when he wrote, he had paid full attention to the implications of thepassage above. By connecting the 'postmodem' and 'age', and putting thepostmodern age and the postindustrial age side by side, he himself contributesto the confusion of the term postmodern. The passage should be understoodonly as describing the Western capitalist societies, and the postindustrialshouldn't be regarded as the prerequisite of the postmodem.

Though he explicitly admits, he seems to give up defining the postmodernin such a way. In a later essay, Lyotard defines the postmodern as "a moodor better, a state of mind,"" and in Just Gaming, he mentions that "postmodemis not to be taken in a periodizing sense." 2 He also contrasts the ijtmodemattitude of ana- with repetition. He says, "the 'post-' of postmodern doesnot signify a movement of comeback, flashback, or feedback, that is, nota movement of repetition but a procedure in 'ana-' " a procedure of analysis,anamnesis, anagony, and anamorphosis that eleborates an 'initial forgetting'." "

10 Id, 3.11 Lyotard, "Rules and Paradoxes and Svelte Appendix," Cultural Critique 5 (1986-

7), 209.12 LyotardJust Gaming (Minneapolis : Univ. of Minnesota Press, 1985), 16. A reading

of a paragraph in that book shows that to him, the relation of the postmodern andthe postindustrial is contingent "I don't happen to think that to be pagan [pagan isalmost interchangeable with postmodern] is the essence of human being, nor do I thinkthat in the dialectic of history a pagan moment is now necessary after the era of religionsand totalitaiian sects. Neither essence nor necessity to uphold this prescription. At most,it is regulated by an Idea." at 18.

13 Lyotard, "Note on the Meaning of 'Post'," Tlx Postmtrkn Explaimd (Minneapolis,Univ. of Minnesota Press, 1993), 80.


B. What Might Be A Proper Meaning of Postmodemism.

In this section, I will try to construct the meaning of postmodemismby utilizing the data presented above. Toynbee as a historian uses the termpostmodern as a tool to denote the contemporary period. Federico de Onis,Leslie Fiedler and Ihab Hassan indicate certain tendency in literature bypostmodernism. Fredric Jameson and Terry Eagleton regards postmodemismas the product of late capitalism by never forgetting historical materialism.I think Jameson's charges on postmodernism is not correct because he doesnot want to pay attention to the complexity of postmodernism. He describespostmodernism as lacking in-depth search and refusing comprehensive accou-nts * they do, however. As a critic, Dana Polan points out, his text of postmo-demism is limited to "that sort of upper-West-side-New-York-culture thatis a source of cliched parody in the films of Woody Allen."14

Terry Eagleton warns against the danger of the postnodern politics dueto its relativistic tendency. I agree with him to some extent, but postmodernistsuch as Derrida, Foucault, Lyotard, etc. will make distinction between Maya-kovsky and Mussolini. Various postmodernism does subscribe prescriptionsthough the set of prescriptions is small. Lyotard is blameable insofar as thedefinition of postmodernism in The Postmodern Condition is concerned. However,he turns to the right track.

Let me hold a good example of the definition of postmodernism. Itis Kristeva's. In a short essay, "Postmodernism ? " she defines postmodernismas an effort to signify the imperceptible, unnameable, unthinkable or "toexpand the limits of the signifiable" against "the positive trap, the necessarilyphantasmagorical desire to see a particular spirit - that affirmative, unifying,convocational, phallic spirit." In her book In the Beginning Was Love, she alsogives an excellent account of postmodern thinking. She writes on the postmo-

14 "Postmodernism and Cultural Analysis Today," in E. Ann Kaplan ed., Postmodrmismand Its Discontents (London : Verso, 1988), 52. For discussions over Jameson's choice ofpostmodern texts, see Victor Li, "Naming the System : Fredric Jameson's Postmodernism,"ARIEL 22/4 (October 1991), 138-139. For Jameson's reductive and electic critiqueof postmodern architecture, see Margaret A. Rose, The Postmodmism Only to Prove the Effea ofthe Logic of Late Capitalism on Characterization of Postmadem Pastiche.


dem attitude, "I am someone else, I cannot say who. There are things thatcannot be said, and I am entitled to play with them so that I can understandthem better."' 5

Though Lyotard misrepresents postmodernism at the openning of The Post-modern Condition, Lyotard characterizes the postmodem attitude well in otherplaces. He regards it as an awakening through the paradox of absence andnon-meaning. According to him, postmodernism shares with modernism thesense of absence or the unpresentable, but it differes from modernism inthat while the mourning of absence in modernism evokes nostalgia, the mour-ning in postmodernism brings about activation of absence. In his words,

I would say that the modern is the consciousness of the absenceof value in many activities. If we are interested in what is newin modernity, it is not knowing how to respond to the problemof meaning. Romanticism, as the absence of meaning and the cons-ciousness of the loss of meaning, but also the activation of theloss. 6

On the distinction between passive and active nihilism, Raoul Vaneigemcomments that the passive nihilist believes simply in nothing, and passivenihilism is an overture to conformism. On the other hand, the active nihilistcriticizes the causes of disintegration by speeding up the process. Activenihilism is pre-revolutionary : passive nihilism is counter-revolutionary. " "

As Krsteva sets her point of attack, Lyotard, at the closing passage

15 Julia Kristeva, In the Beginning Was Love " Psychoanalysis and Faith (New York : ColumbiaUniv. Press, 1987), 51.

16 Lyotard, "Rules and Paradoxes and Svelte Appendix," 209.17 Vaneigem, The Retvoltion of Everyday Lift (London : Left Bankd and Rebel, 1983),

136. Nietzsche distinguished active nihilism from passive. Nietzsche says, "Nihilism. Itis ambiguous : A. Nihilism as a sign of increased power of the spirit : as active nihilism.B. Nihilism as decline and recession of the power of the spirit " as passive nihilism," inWalter Kaufmann 8 R., J. Hollingdale tr. The Will to Power (New York : Random House,1967), Bk I sec. 22.


of The Postmodem Condition represents the objects of his criticism. The passagereads :

Let us wage a war on totality ; let us be witnesses to the unprese-ntable ; let us activate the differences and save the honor ofthe name.18

Paraphrasing it, totality exists in the thought which does not duly payattention to otherness and infinity, and which interprets the world in aruled and principled manner without recognizing paradoxes of interpretation.Seeming consensus is often neighbor to convention, and transparent commu-nication is actually exchanged-valued, commodified. Rules and principles areabstract constructs at the expense of othemess and concreteness. Consensusdemands the sacrifice to silenced dissenters. Therefore we are asked to besensitive to incommensurable differences.

In conclusion, I propose that postmodernism be understood as a typeof thinking, living while French postmodernism be regarded as a type ofWestern thinking which has been recollected and based on current achieve-ments of philosophy of language. Contemporary postmodernism will be morecomprehensible, when the Eastern version of postmodernism can contributeto it. Perhaps, the Eastern version of postmodernism might recognize thevalue of the Sirens' song retold by Horkheimer and Adorno. In Dialecticof Enlightenment, they assert that the enlightenment way of living is nota simple invention of the historical period known as the Enlightenment,but goes back as early as the Greeks. They offer Odysseus' encounter withthe Sirens as the destructiveness of the Enlightenment ideal of control. Odys-seus plugged up the ears of his seamen and tied himself to the mast inorder to escape the allure of the Sirens' song which, Odysseus had heardfrom Circe, had an ineffable, incomprehensible, and threatening nature. Prom-pted by the fear of it, Odysseus chose not to confront the Sirens. In orderto escape the threat, he had to control himself and his oarsmen. Later in

18 Lyotard, The Postmodem Condition, 82.


his life, Odysseus was destined to maintain his omnipotent identity by assimi-lating the ineffable to the order of self-knowledge, and finally eliminatingthe ineffable.'9

III. Postmodern Judgment

A Aporia of Judgmmt

Derrida, in his essay, "Force of Law : The Mystical Foundation of Autho-rity," reflects his own concern with the themes of jurisprudence and theethics of deconstruction - more precisely deconstructive justice, judging, theresponsibility of judges, and so on. At the beginning of that essay, he saysthat his previous writings on Levinas, Hegel, Freud, Kafka, Nelson Mandela,and the Declaration of Independence are already explorations on the ethicsof deconstruction, and also that his notions on double affirmation, the gift,the undecidable, the incommensurable or the incalculable, or on singularity,difference and heterogeneity are the components for his discourse on ethicsand justice. For the deconstruction of law, Den-ida formulates the followingthesis :

First, the deconstructibility of law, of legality, legitimacy or legiti-mation (for example) makes deconstruction possible. Second, thedeconstructibility of justice also makes deconstruction possible, in-deed is inseparable from it. Third, the result : deconstruction takesplace in the interval that separates the undeconstructibility of jus-tice from the deconstructibility of droit (authority, legitimacy, andso on).2o

Where should judging be taken place ? In the story of deconstructive

19 See, Max Horkheimer and Theodor W. Adorno, Dialeefic of Enlighemmm (NewYork : Continuum, 1972), 31-36. For the episode of the Sirens' song, see Homer, Odyssey,Bk XIL

20 Derrida, "Faire of Law," 945.


ethics of judging, it should be located in the interval between deconstructiblelaw and undeconstructible justice. Let me pause here in order to introduceCaputo's recount of the story of deconstructive ethics of judging becauseCaputo's recount will make Derrida's arguments more understandable. Ca-puto explains the Derridean notion of the singular which justice demands : itis "from the start impossible, a failed project, deferred."2 The singular requiresthe immediacy of a here and now,22 but because it is always already mediatedby representation through philosophical (metaphysical) language, "the singu-lar one is gone, vorbei, passed on, past, absolutely past." 23 He continues

The absolutely singular one is not a past presence but absolutelypast; not a future presence, but absolutely unforeseeable. Theimmediacy of the singular is blocked off by the massive mediationof here and now." The lure of singularity is a useless passion.24

Contrary to justice whose demand is always singular, law is the universal.Caputo says, "The universal is consistently haunted by the ghost of its other,the singular.25 Any ambition to universalize the singular objects, howeverconcrete it may be, is destined to failure. The universal is always betrayedby the incessantly haunting ghost of the singular. Caputo says:

The universal never fits, can never find an absolutely appropriateapplication. The concrete situation is always more complicated,and it was never possible to anticipate, to have in advance, the

21 John D. Caputo, "Hyperbolic Justice : Deconstruction, Myth and Politics," in Researchi Pmooo xx (1991), 14.

22 For a clear understanding of the Derridean notion of here and now, see EugenioDonato, "Here, Now/Always Already : Incidental Remarks on Some Recent Characteriza-tions of the Text," Diacritics (Fall 1976) : 24-29.

23 Caputo, "Hyperbolic Justice," 14.24 Id, 15.25 Id


idiosyncrasies of the particular. It is never possible to prepare theuniversal for the disruptiveness of the singular." The lure of theconcrete universal is likewise a failed project 26

According to Caputo, "deconstruction traverses the terrain between thefailed universal and the inaccessible singular, swings across the abyss whichopens up between the impossible universal and the singular that steals away."27

Let me now return to Derrida's text. Derrida says the call of justicedemands double responsibility. First, the call of justice evokes the responsibi-lity to the primordial, immemorial which exceeds the actual, and out ofthat responsibility, deconstructionists question the metaphysical, philosophicalconceptualization of justice and its normative apparatus which supports it.The metaphysical apparatus always appropriates radical alterity by homologi-zing and categorizing it. Thus, the metaphysical, philosophical building ofjustice is always subject to deconstruction.

Derrida's deconstruction has often been criticized. The criticism is thatbecause deconstruction assaults the traditional conceptions of subjectivity,it erases the possibility of a potent agent of political action, and that becausedeconstruction does not provide reliable knowledge and criteria for decision-making, it cannot speak of politics.28 Derrida's response is that the limitof cognitive mastery and philosophical foundation must be experienced. Hesays:

26 Id27 Id, 16.28 On the summary of charges against deconstruction and response, see Thomas Kee-

nan Deconstruction and the Possibility of Justice," Gardozo L. Rev. 11 (1990), 1676.The criticism on deconstruction's ethico-political pertinence is based on the observationthat "deconstruction appears to ruin the categories on which political discourse has triedto found itself for as long as it can rmember, subjectivity and agency, and the reliableknowledge (whether positively, ttheologically, or hermeneutically determined) that allowsit to act." See also Bill Reading, "Deconstruction of Politics," in IAndsay Walters & WladGodzich eds., Reading de Alan Reading (Minneapolis : Univ. of Minnesota Press, 1989), 224.


There is no justice without this experience, however impossibleit may be, of aporia. Justice is an experience of the impossible.A will, a desire, a demand for justice whose structure wouldn'tbe an experience of aporia would have no chance to be whatit is, namely, a call for justice.29

The interval or space, the anxiety-ridden moment of suspension is theonly chance for "transformations, indeed juridico-political revolutions."'

Deconstructive legal decision-making revolves around the two impossibleaxes : Law and justice, the universal and the singular. According to Derrida,the old maxim also supposes the inseparable interdependence of two axes :"Law claims to exercise itself in the name of justice, and justice is requiredto establish itself in the name of a law that must be enforced."3 ' Thus,Derrida proposes that deconstructive legal decision-making be judging gonethrough aporetic experience. Following Derrida, the aporetic experience inlegal decision-making is classified into three parts.

The first aporia comes from the contradictory demands of two heteroge-nous orders, that is, the order of law, universality, calculability, and theorder of justice, singularity, incalculability. Under the demand of the firstorder, a judge must respect the calculable and programmable prescriptionsnamed law. With the demand of the second order, a judge cannot but dealwith the singular, and thus she must put both orders into negotiation. Derridasays :

In short, for a decision to be just and responsible, it must, inits proper moment if there is one, be both regulated and withoutregulation : it must conserve law and also destroy it or suspendit enough to have to reinvent it in each case, rejustify it, at leastreinvent it in the reaffirmation and the new and free confirmation

29 Derrida, "Force of Law," 947.30 Id., 957.31 Id, 959.


of its principle. Each case is other, each decision is different andrequires an absolutely unique interpretation, which no existing,coded rule can or ought to guarantee absolutely.32

The deconstructionist judge would learn, read, understand and interpretlaw by assuming the duty to respond to law, on the one hand, and he/shewould search for the unique singularity of each case by following the dutyto justice. As a result, he/she arrives at the position of not being able tofollow each demand. If he/she follows only the demand of law, he/sheis not just, free and responsible at all, and he/she finds herself a calculator.In reverse, "if he doesn't refer to any law, to any rule or if, because hedoesn't take any rule for granted beyond his own interpretation, he suspendshis decision, stops short before the undecidable or if he improvises andleaves aside all rules,"33 he/she is a naive and irresponsible anarchist. Thus,he/she must arrive at "two significations or two contradictory and verydeterminate rules."3" Two very determinate rules are, in his example, respectfor equity and universal rights on the one hand, and respect for the alwaysheterogeneous and unique singularity of the unsubsumable example, on theother.

Here comes the second aporia of judging, what he calls the ghostlinessof undecidability. To reach a decision, she must pass the ordeal of undecida-bility before two determinate rules. She cannot but decide the case beforeher, but as soon as she decides, the ghost of the undecidable haunts. The

32 Id33 Id, 961.34 Id Derrida speaks of the imaginary and thereby impossible reconciliation of the

universal and the singular. "The victory of one law or other is always a catastrophefor Sittlichkiet, since it opens in Sittlichkeit a colpos in which everything is regularly engulfed,each border of which, rather, rhythmically caves in. Consequently, for Sittlichkeit to accom-plish itself, the engulfing must be engulfed and the caving-in cave in. The equilibriumbetween the two laws will be attained when absolute right, reconciling objective rightand subjective right, will engulf the two opposites, will make their incessant fall fall. Suchwill be, appeasing victory of destiny : Only in the downfall of both sides alike is absoluteright accomplished." in Glas (Lincoln : Univ. of Nebraska, 1986), 174-5.


ghostliness of undecidability begins to deconstruct from within "any assura-nce of presence, any certitude or any supposed criteriology that would assureus of the justice of a decision, in truth of the very event of a decision." "

The third aporia of judging is the antinomy between infinite deliberationaccompanying undecidability and precipitate urgency of justice. Justice doesn'tallow deferral. Following Kierkegaard, Derrida calls this moment of decisionmadness, which is for Kierkegaard divine wisdom. It is a finite momentof urgency and precipitation.

B. The Logic of Spectre

We cannot reach the immediacy of the objects, and thus we have todepend on the mediation through the metaphysical language. That is thechiasmic encounter of Derrida and Levinas. Bemasconi says:

We could fail completely to recognize how far Derrida's early rea-ding of Levinas accomplished the double movement of a deconstru-ction, if we saw in Violence and Metaphysics only an attemptto reassimilate Levinas to the tradition. The necessity which impo-ses itself on Levinas is that of lodging oneself within traditionalconceptuality in order to destroy it. That is to say, if Levinas attimes succumbs to philosophical discourse, that is not a failingbut, according to Derrida, the only way he can renounce it."

35 Id, 965.36 Robert Bernasconi, "Deconstruction and the Possibility of Ethics," in John Sallis

ed., Deconstuction and Philosophy : Thx Te of Jacques Derrda (Chicago : Univ. of Chicago Press,1987), 127. See, Derrida's text, "Violence and Metaphysics," in Writing and Difference (Lon-don : Routledge E4 Kegan Paul, 1978), 111. Bennington also concedes that the chiasmicmeeting affirms the unavoidable necessity of speaking alterity in the philosophical languageof the Greek logos, in Bennington, "Derridabase" in Bennington & Derrida, Jacques Denida(Chicago : Univ. of Chicago Press, 1993), 303. See also, Simon Critchley, "The Chias-mus : Levinas, Derrida and the Ethical Demand for Deconstruction," Textual Politics 3/1(Spring 1989), 102.


Derrida in reading legal texts emphasizes the call of justice. The guidinglight is ethical responsibility to the call. On the project of deconstruction,Derrida says, "Deconstruction is, in itself, a positive response to an alteritywhich necessarily calls, summons or motivates it. Deconstruction is thereforea vocation - a response to a call".

In the latter part of Force of Law, Derrida investigates Benjamin's earlierthought of redemptive, anarcho-messianic politics presented in "Critique ofViolence" (1921). In "The Tower of Babel" (1985), he has already interro-gated Benjamin's earlier view on language presented in "On language in Gene-ral and Human Language" (1916), and "The Task of Translator" (1923).The theory of language has a previleged status within Benjamin's system,for he explains politics by analogue to language. Derrida, who presumesthe necessary contamination of origin, disagrees with Benjamin's accountof language as well as with the way of overcoming deteriorated language.

Benjamin reads the book of Genesis as if it were the story of the genesisand deterioration of language; from the language of the original state tothe language after the Fall and the tower of Babel. According to Benjamin,the original language, what he calls pure language or the language of names,is the reflex of divine word and God's gift. Adam's language is perfect, andhe names the world as it is. The language conveys a spiritual being, thatis, a communicability pure and simple. In pure language, the unsayable doesnot exist.

Benjamin marks the Fall as the end of perfection and the beginningof decay. After the event, language becomes a mere means, and the nameand word degenerate into mediatory signs. Through the subsequent eventof God's destruction of the Babel tower, human language becomes multiplifiedand confused. The Babel story recounts that "the tribe of the Shem (theword Shem means name in Hebrew) wanted to make a name for itselfby building a tower and imposing its language alone on all the peoplesof the earth. To punish them for this outrageous ambition, Yahweh destroyed

37 Richard Kearney, "Deconstruction and the Other : An Interview with Derrida,"in Dialogues with Contemporary Continental Thinkers : The Phenomendogical Heritage (Manchester : Man-chester Univ. Press, 1984), 118.


the tower, shouting out his name 'Bavel' or 'Babel' which sounds (confuse-dly) like the Hebrew word which means 'confusion', and imposed linguisticdifferentiation on the earth."3 Thus the paradigm of language is shifted fromthe order of manifestation to the order of means and representation.

Now, let me read Derrida's reading of "Critique of Violence." In thatessay, Benjamin counterposes two forms of force in Western culture, law-making violence and law-conserving violence which originates from "mythicalviolence" of the Greek Gods, and the divine violence of the Judaic originwhich destroys the law itself. Derrida's reading shows that Benjamin's distinc-tions of law-founding and law-preserving violence and of the Greek andJudaic violence are not pure, but overlap and contain each other, respectively.

First, I will examine the mythical violence of the legal field : law-foun-ding and law-preserving forces. Both Derrida and Benjamin agree that positinglaw is in itself an unjustified violence. No new law can found itself byappealing to existing laws. Derrida reads the founding act of law as doublebind. He says:

A double bind or a contradiction that can be schematized as fol-lows. On the one hand, it appears easier to criticize the violencethat founds since it cannot be justified by any preexisting legalityand so appears savage. But on the other hand, and this reversalis the whole point of this reflection, it is more difficult, more illegi-mate to criticize this same violence since one cannot summon itto appear before the institution of any preexisting law ; it doesnot recognize existing law in the moment that it founds another. 39

In short, "The subject of the pure performative (here, the performativeact of founding law) would be no longer before the law, or rather he wouldbe before a law not yet existing, a law yet to come, encore devant et devant

38 Geoffrey Bennington, "Derridabase," in Bennington & Derrida, Jacques Dmida (Chi-cago : Univ. of Chicago Press, 1993), 174.

39 Derrida, "Force of Law," 1001.


venir."Commonly held views on the relation between founding law and conser-

ving law usually presume the qualitative difference between them. Benjaminthought the distinction should be clear, but in reality was not. Benjamin'sexample was police power. The police have vast power beyond law-enforcing,equivalent to that of law-makers by publishing ordinances, exercising delibe-ration, etc. He regards such an impurity as a modem culmination after theFall, like the fate of human language which must represent and thus resultsin confusion. Benjamin says, "The absence of a frontier between the twotypes of violence, the contamination between foundation and conservationis ignoble, the ignominy of the police.""' Contrary to Benjamin, Derrida rega-rds the impurity and suspension of the distinction as a necessity, the paradoxof iterability.

With regard to the relation of law-founding and law-preserving violence,Derrida proposes the interpretation according to which the very violenceof the foundation or position of law must envelop the violence of conservationand cannot break with it. Derrida says:

Position is already iterability, a call for self conserving repetition.Conservation in its turn refounds, so that it can conserve whatit claims to found. Thus there can be no rigorous opposition bet-ween positioning and conservation, only what I call a differentialcontamination between the two, with all the paradoxes .42

Law-conserving acts including judge's decision-making are not merelya constative act : they assume the full negotiation between performative andconstative out of undecidability. Derrida says, "There is no justesse, no justice,no responsibility except in exposing oneself to all risks, beyond certitudeand good conscience."" a

40 Id, 993.41 L4 1005.42 Id, 997.43 Id, 1025.


Along with the distinction between law-founding and law-conservingviolence, Derrida interrogates another distinction : the mythical violence ofthe Greek origin and the divine violence of the Judaic origin. Benjamin coun-terposes two forms of violence feature for feature. "Instead of founding law,the violence of God destroys it ; instead of setting limits and boundaries,it annihilates them; instead of leading to error and expiation, it causesto expiate; instead of threatening, it strikes ; and above all, this is theessential point, instead of killing with blood, it kills and annihilates withoutbloodshed." " Thus the violence of God stands for the decisive realizationof justice, and the destruction of the cycle of decay and the contaminatedrepetition of mythical violence. Benjamin's politics is that of returning tothe origin. At this point, Derrida contends that the Benjaminian divine viole-nce also retains undecidability -- the difference between unlimited, infinite,unnameable God and the finitude of humankind. As Derrida points out,Benjamin's position results from what can be called 'the logic of specularity,'while his can be named 'the logic of spectre.' Henry de Vries commentson that:

In the measure in which in Benjamin's discourse an authentic origi-nality and destruction are tightly knotted together and mirror eachother, it should be caught in this metaphysical specularity andwhich might therefore be more effective in resisting the worst.Derrida calls this other logic ..... a logic of spectre. Unlike the specu-larity of the performative of the divine founding and annihilationthat marks Benjamin's interpretation of the mystical postulate, thespectral logic that Derrida invokes here and elsewhere precludesthe possibility of any ontological or textual resisting point, eventhe one presupposed by the theory which claims that meaningis subjected to a permanent drifting.45

44 Id, 1027.45 Henry de Vries, "Anti-Babel :The Mystical Postulate in Benjamin, de Certeau

and Derrida," MLN 107, 474.

THE KOREAN JOURNAL OF COMPARATVE LAW (Vol 23

Den-ida finally says that we have two forms of violence, divine andmythical, but this is different from Benjamin's intended distinction. Benjamin'sdistinction is that all undecidability is situated, blocked in, accumulated onthe side of mythological violence and all decidability stands on the sideof divine violence. Derrida says that though divine violence is "the mostjust, the most historic, the most revolutionary, the most decidable or themost deciding,"46 it is not accessible to human determination and knowledge."On the one hand, decision, justice beyond law and the state, but withoutdecidable knowledge, and on the other, decidable knowledge and certaintyin a realm that structurally remains that of undecidable.""7 Thus, the taskof deconstruction, he continues, is to be accomplished "in an impure, conta-minating, negotiated, bastard and violent way." "

C. Chiasmic Encounter between Derida and Lemnas.

As the titles of his two major books indicate,49 Levinas' project seeksto articulate unpresentable infinity, or beyond the Greek philosophy, onto-theology, being and essence. Essence originates from Esse which means inte-rest etymologically, and being is the point of start and destination. The Greeksubject always returns to origin after and by discovering itself in every other.It is the circuitous journey of Ulysses in opposition to Abraham's foreverwandering. The confrontation with others leads the subject to apprehension,thereby reducing the othemess of others. Against that tradition, Levinas relieson and constructs the Judaic tradition which commands the subject to besubject to errant cause, Ileity. The Good or God orders the subject to bearwitness to unnameable alterity or the face of the Other. A face is trace.'It is near but never present The face of the Other always comes to mein the way that the Other presents himself, exceeding the idea of the other

46 Id, 1033.47 Id, 1035.48 Id49 Emmanuel Levinas, Towaiiy and infinity, tr. Alphonso Lingis (Pittsburgh : Duquesne

Univ. Press, 1969) ; OThise Than Being or Beyond Essence (Hague : Martinus Nijhoff, 1981).50 Levinas, Othmme Than Being 91.


in me."' To face the other is to bear witness to unnameable alterity. It stripsthe ego of its pride and the dominating imperialism characteristic of it.52

According to Levinas :

The presence of a face thus signifies an irrecusable order, a com-mand, which calls a halt to the availability of consciousness. Cons-ciousness is put into question by a face. The putting into questionis not reducible to becoming aware of this being into question.The absolutely other is not reflected in consciousness. It resistsit to the point that even its resistance is not converted into acontent of consciousness. The visitation consists in overwhelmingthe very egoism of the I; a face baffles the intentionality thataims at it."3

Levinas's ethics do not specify the prescriptions and rules of conduct;rather, they specify the condition of morality and politics. The attitude whichLevinas's ethics ask of us is the vigilant passivity to the call of the Other.Levinas says that one cannot escape his responsibility on the ground ofreciprocity because one's responsibility for the Other surpasses the responsibi-lities of the others.54 The I is a designated hostage who is asked to sacrifice.As he often says "you shall not kill," it is impossible to kill the Other becauseI can never succeed in eradicating it. The ghost of the Other would always

51 Levinas, Totality and Infinity, 50.52 Levinas, Otherwtse Than Being 110.53 Levinas, "The Trace of the Other," in Deconstruction in Contex " Literature and Philosophy,

ed. by Mark C. Taylor (Chicago Univ. of Chicago Press, 1986), 352-3.54 Levinas, Ethics and Infinity Conversation with Philippe Neno, tr. by Richard A. Cohen

(Pittsburgh : Duquesne Univ. Press, 1985), chap. 8 Responsibility for the Other. Levinasmentions in another place the instance that we find enemy. He says:

If your neighbor attacks another neighbor or treats him unjustly, what can you do ?Then alterity takes on another character, in alterity we can find an enemy, or at leastthen we are faced with the problem of knowing who is right and who is wrong, whois just and who is unjust. There are people who are wrong. in Levinas, Levinas Reader,ed. by Sean Hand (Cambridge: Basil Blackwell, 1989), 294.


linger on. I am irresistible to the call of the Other; it is antecedent tomy freedom.

Robert Bernasconi gives an attractive account for reading Levinas. Hecontends that Levinas is partly responsible for banal interpretations on hiswork, for his texts as a whole are conflicting. But Bernasconi suggests thatLevinas's work cannot be understood properly without considering Levinas'sself-conscious employment of rhetoric. Tracing his idea on the pairs of ethicsand politics, responsibility and justice, we find that interpretations are locatedwithin the range between the two poles of mad responsibility and universaljustice. Bemasconi assumes one important way to get into the right tracklies in the careful exploration of the meaning of often mentioned phrasesin Levinas's works : "desire without satisfaction, eschatology without hopefor oneself, love without eros, gratuitously without worrying about reciprocity,saying without said, prayer without demand.""5 Bernasconi maintains thatif one interprets those phrases in a literal sense, Levinas is seen to condemnus to a form of madness or to "unproductive frustration and self-destructiveguilt."56

He proposes that the meaning of the exclusion marked by "without"be understood as "Levinas's attempt to mark the moments which interruptor disturb the dominant order, though not by opposing it directly."57 Hisexplanation goes on:

The saying is not opposed to the said; desire is not opposedto need; love is not opposed to expectation of return and soon with the other phrases. A saying without a said, a desire withouteros, a gift without expectation do not represent extreme cases,exceptions in a world dominated by the said, by need, or by eros.The logic of Levinas's without seems to suggest rather that thereis no saying without a said, no desire without need, no love without

55 Robert Bernasconi, "The Ethics of Suspicion," Research in Phenomenology 20(1990), 10.

56 See Id, 10-11.57 Id, 14.


eros, no gift without thought of some reciprocity because, as embo-died, we live in a world dominated by the said, eros, economicsand so on. 8

Levinas does not propose to abolish the order of reciprocity, returnand need, but to put into question that order.

Let me move on to the order of reciprocity, return and need whichLevinas acknowledges. As seen above, Bemasconi emphasizes that Levinas'sethics is, above all, that of suspicion, while recognizing that the human worldneeds that order of eros, exchange, return, need, reciprocity, etc. Bernasconifurther points out that Levinas's goal is not to generate an ethics (or rules),for he limits his task to finding the sense of ethics. Levinas himself says,"One can without doubt construct an ethics in the function of what I havejust said but this is not my own theme." 59 "What he has just said" is asfollows :

How is it that one can punish and repress ? How is it that thereis justice ? I answer that it is the fact of the multiplicity of menand the presence of someone else next to the Other, which condi-tion the laws and establish justice. If I am alone with the Other,I owe him everything; but there is someone else. Do I knowwhat my neighbor is in relation to someone else ? Do I knowif someone else has an understanding with him or his victim ?Who is my neighbor ? It is consequently necessary to weigh, tothink, to judge, in comparing the incommensurable. The interperso-nal relation I establish with the Other, I must also establish withother men; there is thus necessity to moderate this previlegeof the Other ; from whence comes justice. Justice, exercised th-rough institutions, which are inevitable, must always be held incheck by the initial interpersonal relation.6'

58 Id59 Levinas, Ethics and Infniy, 90.60 Id, 90.


As Levinas shows in the first half of the above passage, the momentof multiplicity in the ethical relation of the I and the Other is inevitable.The ethical relation is not an I-Thou relation. He has clarified the relationin several places. He says, "The direct encounter with God, this is a Christianconcept. As Jews, we are always threesome: I and you and the Third whois in our mist. And only as a Third does He reveal himself."6" From thebeginning of the ethical relation of the I and the Other, the third partyintervenes in the ethical relation of I to the Other in the way that it "looksat me in the eyes of the Other."6" In the conclusion to Totality and Infinity,Levinas says :

In the measure that the face of the Other relates us with thethird party, the metaphysical relation of the I with the Other movesinto the form of the We, aspires to a State, institutions, laws, whichare the source of universality.6 3

This passage indicates to me that Levinas recognizes the necessity ofgovernment and institutions, and takes it for granted that their way of opera-tion is carried out by principles and universality.

In the second half of the above passage, Levinas touches on the problemof justice. Levinas's justice carries a political function, which is to judge,criticize, blame and accuse. But it must be empowered, recoiled, intensifiedby proximity in order to compare the incommensurable. Levinas says thatif the order of eros, need, exchange, return and reciprocity is not informedand interrupted by the alterity of all other persons, justice is not worthyof the name. Thus, the condition of justice is proximity. According to Levinas,

proximity is a derangement of the rememberable time. One cancall that apocalyptically the break-up of time. But it is a matterof an effaced but unnameable dia-chrony of non-historical, non-

61 Levinas, "Ideology and Idealism," in The Ltinas Reader, 247.62 Levinas, Totality and Iniity, 213.63 Id, 300.


said time, which cannot be synchronized in a present by memoryand historiography, where the present is but the trace of an imme-morial past."

The proximity dwells prior to and outside ontology, cognition and recu-perable historical time. It is an anarchic relation and the trace of the infinite.Thus Levinas says.

Justice is impossible without the one that renders it finding himselfin proximity. His function is not limited to the function of judg-ment, the subsuming of particular cases under a general rule. Thejudge is not outside of the conflict, but the law is in the midstof proximity. Justice, society, the State and its institutions, are com-prehensible out of proximity. This means that nothing is outsideof the control of the responsibility of one for other.65

The condition of justice relies on proximity. That is, any project orprogram set up by calculation and measurement must be informed andinterrupted by proximity. He has shown us that universality must be interru-pted by the pre-original anarchy of the ethical relation. Up to this point,Levinas's ethics are not different from Derrida's deconstruction, in that Levi-nas's proximity can be understood as Derrida's non-site, and in that bothrecognize the necessity of disruption of arche by anarchy. But one of theimportant differences between them seems to lie in Levinas's relatively strongrecognition of the necessity of the search for a principle. Levinas says:

From responsibility to the problem - such is way. The problemis posed by proximity itself, which, as the immediate itself, iswithout problems. The extraordinary commitment of the Otherwith regard to the third party calls for control, to search for justice,

64 Levinas, Otherwise Than Being, 89.65 Id, 59.


to society and the State, to comparison and possession, and tocommerce and philosophy, and, outside of anarchy, to search fora principle. Philosophy is this measure brought to the infinity ofthe being-for-the-other of proximity, and it is like the wisdomof love.6

Why do we need to search for a principle ? It is needed because thereis the third party against which every individual responsibility for the Otheris to be compared, weighed and checked. Search for a principle is seenas an activity to thematize the differences between the conflicting individualethical relations.

Drucilla Cornell translates Levinas's search for a principle as elaboratingprinciples of justice, that is, constructing proper principles. The question atthis point is whether 'search for a principle' or 'elaborating principle' isthe proper phrase in light of Levinas's thought. One example of Levinas'ssearch for a principle is found in his commentary of the Talmud. In "Pact,"67

Levinas says that "general principles and generous principles can be invertedin the course of their application."6' He acknowledges the danger of thoseprinciples; "all generous thought is threatened by its own Stalinism." 69

Thus for Levinas, the Talmud's casuistry is 'the special discipline whichstudies the particular case in order to identify the precise moment withinit when the general principle is at risk of turning into opposite."70 Inferringfrom Levinas's position presented in Pact, his search for a principle is farfrom establishing well-organized system of abstract principles from whicha conclusion is deducted. It is more a questioning of the totalizing effectof that system. On the one hand, the search for a principle can be seenas an activity of elaborating principles. For example, a foundational principlethat all citizens should be treated with egual respect and concern can be

66 Id, 161.67 Levinas, The Letnis Reader, 220.68 Id69 Id70 Id


countered by the concern of a particular and, as a result, it is more differentia-ted and so elaborated. On the other hand, the elaboration is also an activityof disrupting the principle.

Thus, the search for a principle should be understood as a paradoxicalnecessity. The relationship between the Saying and the Said explains theparadox. According to Susan Handelman :

Though the saying is non-thematizable, non-representable, beyondthe gatherings of history and memory, an-archic (i. e., prior toall arche, origins and foundations), it still always must be said,betrayed in the very language one uses to speak about it. Thesaid, however, retains a trace of the saying and Levinas redefinesthe phenomenological reduction precisely as the movement backto the saying from the said. In it the indescribable is described.(Otherwise Than Being, 53) ; philosophy is indescretion in relationto the inexpressible. (Solomon Malka, Lire Levinas, 108)"'

Philosophy appears to justify the laws of being and of the city, butat the same time criticizes them. That is also the politics of decision.

Let me move from Levinas to Drucilla Cornell. She seems to me topropose to do what Levinas does not want to do : as we have seen above,that is probably the last thing he would do. Cornell seems to assume elabora-ting principles of justice to go beyond the Derridean impasse of politics andthe aporia of judging. Thus, she contends:

We cannot also escape our responsibility, particularly if we arelaw professors, judges, and lawyers, to elaborate principles of justicewhich can guide us in an effort to synchronize the competingclaims of individuals and to adjudicates between divergent interp-retations of doctrines.72

71 Susan Handelman, "Parodic Play and Prophetic Reason : Two Interpretations ofInterpretation," Poetics Today 9/2 (1988), 411.

72 Cornell, Philosophy of the Limit, 100.


For her, a principle such as reciprocal symmetry is "a guiding light,the light that comes from the lighthouse, a light that guides us and prevents

us from going in the wrong direction." 3

As far as law and legal institutions are concerned, we may not escapethe logic of universality and impersonality. The language of modern lawassumes itself "in service to the system of generalized statements, clausesand abstract provisions which give the appearance of applying in a purelyobjective, machine-like way without the least admixture of circumstantialinterest and motive." " Legal language has exerted violence to the singular.Nevertheless, Levinas and Cornell give the existence of law and legal institu-tions necessity. Cornell says:

It is true that legal principles inevitably categorize, identify, andin that sense violate difference by creating analogies between thelike and the unlike. If we cannot escape this violence of differencein a legal system, however, we can still develop principles thatminimize it."

Now, let me clarify the difference between Levinas and Derrida throughthe confrontation between a Derridean and a Levinasian scholar : ThomasKeenan and Drucilla Cornell. Cornell's text, Keenan reads, is "Post-Structura-lism, the Ethical Relation and the Law,"76 in which Cornell formulated herposition that she maintains in her recent book, Philosophy of the Limit. Keenanreads Cornell's writing as a hesitation between "politically provocative opera-tions" and "ethico-political vigilance and responsibility"77 because she knows

73 Id., 106.74 Christopher Norris, "Law, Deconstruction and the Resistance to Theory," in Deconst-

ruction and the Interests of Thory (Norman : Univ. of Oklahoma Press, 1989), 136.75 Cornell, Philosophy of the Limit, 105.76 Drucillar Cornell, "Post-Structuralism, the Ethical Relation, and the Law," Cardozo

L. Rev. 9 (August 1988) " 1587-628.77 Thomas Keenan, "Deconstruction and the Impossibility of Justice," Cardozo L.

Rev. 11 (1990), 1976.


the former cannot be pursued without sacrificing the latter, the alterity ofthe future. Keenan quotes Comell's concluding remarks :

We can no longer read off what the ideal is as if it were there,present in the actual - as if our task was only passive. Whenwe interpret, we posit the very ideal or the ethical we promiseto remain true to it. Or promise of fidelity to the ethical or tothe ideal is precisely what breathes life into the dead letter ofthe law and provides a barrier against the violence of the word.If we understand that legal interpretation is not simply exposition,but only a promise, if we recognize that law is always fallen be-cause the law cannot fully realize the call to the ethical, thenwe can see that we have our basic task cut out for us, at leastfor those of us who are lawyers and law professors. To heed thecall to responsibility within the law is both to remind our studentsof the disjuncture between law and the ideal and to affirm ourresponsibility to make promise to the ideal, to aspire to counterthe violence of our world in the name of universal justice.78

Keenan contends Cornell's "aspiration to nothing short of universal jus-tice, the inspiriting of the dead letter with the breath of life does appearto lack the symmetrical negativity, the respect for impossibility, often associa-ted with deconstructive gestures. To breathe life into the dead letter, tomark the disjunction between actual and possible (as ideal), hence to offeragainst particular violence the protection of the universally just, all suggesta certain resurfacing of the phono- or logo-centrism which has dominated(and largely crippled) critical political discourse and to which deconstructionhas formulated the most startling challenges."79 Thus, Keenan concurs withDerrida. He says "Justice and responsibility are only possible, if they havea chance of happening at all, starting from their exposure to their strict

78 Id, 1678-9 : Cornell, -Post-Structuralism, the Ethical Relation, and the Law,"1628.

79 Id, 1679.


and unpredictably recurring impossibility ..... The 'we' here can be a commu-nity without any ground in any common likeness and without a universallaw, without the present in which any subject might articulate itself, butonly a terrifying proximity."80 Keenan's remark is what Derrida has alreadysaid. According to Derrida :

A community of decision, of initiative, of absolute initiality, butalso a threathened community, in which the question has not yetfound the language it has decided to seek, is not yet sure of itsown possibility within the community. A community of the ques-tion about the possibility of the question. This is very little - almostnothing - but within it, today, is sheltered and encapsulated anunbreachable dignity and a duty of decision. An unbreachableresponsibility. Why unbreachable ? Because the impossible hasalready occured."81

IV. Concluding Remarks

In the above, I proposed that postmodernism be defined as a type ofthinking, which already happens. Its elements are first, the recognition ofthe unnameable and second, play on it as shown in Kristeva's defintionof postmodemism very well. The rhetoric of the unnameable implies thattruth is unattainable. It is a warning against the optimism of the Enlighten-ment humans.

Likewise, for most of postmodemists, legal decision-making is the taskof determining the indeterminable. If Lacan and Lyotard had spoken of it,they would have taken the position similar to Derrida. Foucault told aboutlaw and legal decision-making. I will not espouse Foucault's view here, buthe is not much different from Derrida, Lacan, and Lyotard. Perhaps, onemight say that postmodernism's understanding of judging has been told sinceantiquity. It is very familiar to us. The recent postmodemism retells, andurges us to activiate that view in theory and practices.

80 Id, 1681.81 Derrida, Writing and Diffrence, 121.

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Bong Chul Choi - Postmodernism and Postmodern Judgment

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