Balkinization  

Tuesday, December 13, 2005

Deconstruction's Legal Career

JB

My new article on deconstruction and legal scholarship is now available on SSRN. Originally written in 1998, I have revised it a bit to take into account my latest thinking on the relationship bewteen law and deconstruction. Here is the abstract.
This article describes law's encounter with deconstruction, and how it changed deconstruction. In the hands of lawyers, deconstruction became a set of rhetorical strategies for critiquing legal distinctions and showing their ideological character. Legal scholars used deconstructive arguments to offer normative prescriptions in ways quite different from literary critics or philosophers. Although in theory all texts and distinctions are deconstructable, legal scholars assumed that some interpretations were better than others. Legal deconstruction thus became a set of repeatable rhetorical practices used for pragmatic purposes; and it revealed that these rhetorical and pragmatic features were already present in literary and philosophical deconstruction.

Deconstruction's encounter with law also overturned several popular assumptions about deconstruction. First, legal deconstruction does not assert that legal texts have no meaning or that their meanings are indecipherable. Rather, it argues that texts are overflowing with meanings that point in different directions and emerge over time. Second, one deconstructs conceptual oppositions not to show that legal concepts have no boundaries, but that their boundaries are fluid and appear differently as the conceptual opposition is placed into new interpretive contexts. Legal deconstruction asserts that legal distinctions are nested oppositions - conceptual oppositions whose terms bear a relation of mutual dependence and differentiation; this complicated relationship is revealed as interpretive contexts change. Ideological drift, in which concepts change their political valance as they are repeatedly invoked at different points in history, is a special case of this phenomenon. Third, instead of asserting that legal doctrine is radically indeterminate, legal deconstruction suggests that social construction places ideological constraints on legal decisionmaking and helps produce the sense that some arguments are better than others. Finally, far from denying the existence of fundamental human values, legal deconstruction presupposes a transcendent value of justice which law attempts to express but always fails fully to articulate.


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