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 by Brian Milstein
 Submitted originally for the "Field Seminar in Political Theory," Fall 2003, at the Graduate Faculty of the New School for Social Research, Nancy Fraser, Instructor Cite as: Milstein, Brian. "Between Voluntarism and Universal Autonomy: Jacques Derrida's 'Force of Law.'" Unpublished paper, New School for Social Research, New York (accessed on [DATE] at http://magictheatre.panopticweb.com/aesthetics/writings/polth-derrida.html). I am calling this essay an "exposition" of Derrida's lecture on law, although it might better be referred to as a "reduction." Essentially, I am aiming to locate Derrida's critique of law in the theory of the State as it developed from early modernity through the Enlightenment. For this purpose, I will briefly contrast two representative theoretical paradigms, Bodin's voluntarist theory of sovereignty and Kant's idea of universal right grounded in autonomy. I believe Derrida reads a persistence of conflict between a concept of universal autonomy (Kant) that intensifies the violence internal to a state apparatus that never quite shed its voluntaristic soul (Bodin). Sovereignty and Voluntarism. Sovereignty is generally classified as "internal" or "external." Internal sovereignty has long been defined in part by a "monopoly on the organization of violence," by the capacity to establish and maintain the "social compact," as it were, by force: "Covenants without the sword are but words" (Hobbes 1994, 106). External sovereignty has, since at least the time of Aquinas, been marked by what is often called the right to go to war. The phrasing is significant, particularly given the bearing that the external sovereignty of a state has on its internal sovereignty. Right for the sovereign is demarcated vis-a-vis other sovereigns -- by the fact the the sovereign is himself answerable to none but God -- and war is the very measure of this demarcation. This association of course predates any notion that the legitimacy of the sovereign stems from popular consent; rather, in Medieval political cosmology, the ruler's commitment to the "common weal" is derived from a mandate from above. The "divine right of the king" is manifested at the worldly level by the prerogative to deem and wage just war, on the one hand, and to execute justice in defense of the common weal, on the other. In both cases, the relation of the sovereign to right and to the just is through the medium of corporal violence. Right thus originates from the sovereign by virtue of this gift of violence -- through a mimicry of the divine wrath that declares it (which we can trace in French absolutism, for example, in the works of Kantorowicz, Foucault, and Agamben). The concept of sovereignty, particularly as formulated by Jean Bodin, is bound up with the will, with the volition of the sovereign (Dyson 1980, 32). It is hardly surprising that the Latin words voluntas and volo, the noun and verb forms of "will," alternately mean signification or meaning but also ordination. To will is to sign and to ordain. According to voluntarist theology, such as that of Duns Scotus and Ockham, the right, the just, and the good are functions of divine will without recourse to the immanent justification of content (Schneewind 1998, 24-5). The right signified by law points directly to the volition of he who ordained it: "But whenever the law and its rectitude are in the power of the agent, so that the law is right only because it has been established, then the agent can freely order things otherwise than this right law dictates and still can act orderly, because he can establish another right or just law according to which he may act orderly" (Duns Scotus, qtd. in Schneewind 1998, 24). Right, emanating from the will of the king as its very manifestation, does not bind the king himself. Bodin declares that "it is as impossible by nature to give one's self a law as it is to command one's self to do something that depends on one's own will," and proceeds, significantly, to quote in Latin: "Nulla obligatio consistere potest, quae a voluntae promittentis statum capit" ("No obligation can [potest: has power to] exist that depends on the will of the person promising" [Bodin 1992, 12]). The power of violence that establishes right is inseparable from a correlate power to retract it and to do so, in principle, at will. Thus Derrida, echoing Schmitt, declares that the mystical founding violence of law "is, in droit, what suspends droit" (Derrida 1992, 36). As we shall see, a relation exists -- sovereignty, violence, right -- in which each must continually strengthen the other and at the same time betray it. It is the contingency of right -- contingent by virtue of its retractability -- that reinforces its power by virtue of its backing by the exceptional and exceptionally fearful power of the sovereign. The founding violence of the State is on one hand maintained through a preserving violence that obtains its effectiveness precisely through the fear inherent in the sovereign exception. This preserving violence manifests itself heterogeneously, by reiterating founding violence: "Iterability requires the origin to repeat itself originarily, to alter itself so as to have the value of origin, that is, to conserve itself" (43). Right, linked to the violence that is its foundation, is reinforced by a violence that cannot but reenact the violence of foundation and thereby violate it. All violence is violation (both of which sound like "volition"). Right as Universal Autonomy. As J.B. Schneewind writes, a defining mark of Enlightenment political rationality -- most notably of Kant's -- is the rejection of voluntarism. It is in fact not long after Bodin that Hugo Grotius authors a conception of international law that detaches sovereignty from the divine will. Law and will as concepts become less dependent on one another as both are subjected by Grotius to the law of nature (Schneewind 1998, 74-5). Samuel Pufendorf, while clinging to a variation of the voluntarist position to preserve the link between God and morality, makes the radical move of rejecting the association of morality and being that was presupposed in previous theories of ethics (123, 138-9). These conceptual moves are crucial aspects of a shift in moral and political thinking that will culminate in the theories of "practical reason" suggestive of an autonomous moral domain -- one which distinguishes the moral question of "right action" from the ethical question of "the good life" (cf. Habermas 1990, 17). In this paradigm, the relation between right and will are ostensibly reversed: right is no longer the emanation and manifestation of the awesome will of the sovereign; sovereignty is now the agent of a form of an unimpeachable right that preexists it. The sovereign is himself the subject of reason. Right describes a condition of social organization: a "rightful condition," a civil society, an association of citizens not subjects. The immanence of right is transferred from sovereignty to citizenship, of which Kant lists three essential attributes: "lawful freedom, the attribute of obeying no other law that that to which he has given his consent; civil equality, that of not recognizing among the people any superior with the moral capacity to bind him as a matter of right in a way that he could not in turn bind the other; and third, the attribute of civil independence, of owing his existence and preservation to his own rights and powers as a member of the commonwealth, not to the choice of another among the people. From his independence follows his civil personality, his attribute of not needing to be represented by another where rights are concerned" (Kant 1996, 457-8 [6:314]). These propositions are in direct conflict with Bodin's theory. The attribute of freedom, after all, declares law to be precisely the kind of self-obligation he thought contradictory (nulla obligatio). Kant's notion of equality, moreover, is unthinkable on the verge of blasphemous from the voluntarist point of view, as right action requires "orderly obedience" as called for by an absolute superior, such as God or a divinely righteous overlord: "His astonishing claim is that God and we share membership in a single moral community only if we equally legislate the law we are to obey. The mature Kant does not hesitate to make an explicit comparison between human agents and God. ...[O]ur will gives us a law that must also be law for God" (Schneewind 1998, 512-3). Finally, the attribute of independence in citizenship declares absolute sovereignty to be an encroachment upon right, not its originator. Kant works out his political theory to take over the operations of the state. This is particularly true in the external right of the state: he preserves the "right to go to war" as "the way in which a state is permitted to prosecute its right against another state" (Kant 1996, 484 [6:346]). The Thomist natural law tradition, as appropriated by Bodin, associated natural with divine law, leaving human law in the hands of the sovereign through prerogatives received from above. Kant reverses this directionality by locating natural law in the power of reason indigenous to human autonomy -- rational will obviates the will of God and divine right (Schneewind 1998, 521). The State remains, but now the moral law comes from below; thus, "Kant subverts natural law theory in the course of reworking some of its central tenets" (522). The will, that is, the volitional power of right, is diffused into civil society and may be taken up by the lawful freedom of each of its participants. Kant insists that it is improper for individuals to take it upon themselves to break laws they consider unjust; nevertheless, his theory grants a notion of universal right which exceeds that of the State, but which at the same time can be claimed by any one of its citizens. The volitional organization of the State could thus be considered as being at odds with itself: it is in principle the final arbiter of a right that is not its own, but of which it is a mere representative; it must stand as a unitary agent in relation to other states as if it were the originator of its right, when in fact it is not; the State retains its monopoly on violence but not on volition, or, in relation to the universality of right, on violation. How does this relate to the aporias of justice that Derrida, by way of Walter Benjamin, links to the critique of violence? Sovereignty, Violence, Right. Seyla Benhabib (1991) argues that what is at stake lies in a "dualism of law as coercion and law as normativity." She notes Derrida's invocation of Montaigne and Pascal at the beginning of his lecture on "Force of Law." Both are voluntaristic in their philosophical viewpoints, particularly Montaigne, and it is to him that Derrida attributes the "mystical foundation of authority." He cites the following passage: "And so laws keep up their good standing, not because they are just, but because they are laws... Anyone who obeys them because they are just is not obeying them the way they ought to" (qtd. in Derrida 1992, 12). Derrida proposes to employ the notion of the mystical to refer to the "performative power" that founds and preserves orders of law (13-4). Derrida views the State in terms of its volition: "Since the origin of authority, the foundation or ground, the position of the law can't by definition rest on anything but themselves, they are themselves a violence without ground" (14). Abandoning the role of the divine, this founding violence is without moral value. Droit is itself founded in this violence, yet Derrida wants to argue that this groundlessness continues to haunt it in its application through three aporias, all of which amount to this: while the institutions of law are put in place to ensure the universal application of justice, in practice such applications are inextricably laden with a particularity that admits of the arbitrary. For Bodin, this may be less than a problem as it is the sovereign's primary prerogative to "give law to all in general and each in particular" (Bodin 1992, 56). The sovereign's monopoly on right ensures the orderliness of his application of it. In any case, Derrida is more interested in modern society, where juridical norms and practices are measured against universal justice. It is in this context that he turns to Benjamin. Right, freed from the sovereign's hands, interacts with him in an uneasy triangle -- sovereignty, violence, right. On one hand, the sovereign's function is to employ his monopoly on violence to impose and preserve right. Yet right, qua universal autonomy, can be reclaimed by the subject as citizen and turned around against the State as a counter-violence (e.g., the general strike). Finally, the amoral founding violence of the State repeats itself in the ostensibly "conservative" violence aimed to preserve right, creating points of rupture. These points of rupture, which reenact the founding of the State, are multiplied in democratic societies as the volition of the State is dispersed among separated powers, sprawling bureaucracies, and police organizations. For Benjamin, this "corruption" of the originary violence of the State signifies a degeneracy in droit; meanwhile, the body of the State entrusted with droit, the legislature, loses its connection with the violence that created it and which underlies the ideal of its mandate (Derrida 1992, 46-8). Derrida is selective in his choice of texts, selecting first perspectives on authority with a critical while distinctively voluntarist bent (Montaigne and Pascal) and then one that reflects on a democratic society on -- at least in hindsight -- a clear trajectory of degeneration (Benjamin on the Weimar Republic). The barely concealed figure in the shadows is of course Carl Schmitt, in references to "undecidability," the "suspension" of droit, and the general casting of the political as antagonism of forces. Kant, to be sure, referred to antagonism of a sort ("unsocial sociability"), but he did so in terms of a process of the development of individual "talents" and the gradual harmonization of human interests such that "a pathologically enforced social union is transformed into a moral whole" (Kant 1991, 44-5). Derrida's characterization of law as antagonism at the expense of the normative is highly limited, but neither wrong nor useless. It begs the question not of How are we to eliminate violence? but rather What kinds of violence (Gewalt) are necessary? in a modern democracy. Today, political and legal systems are still organized in a basic framework of the State, one which Bodin thought was thoroughly unsuited for democracy. There is a wisdom, then, in locating his critique of the "force of law" in the context of political-philosophical debates in the exemplary Weimar Republic -- a context in which, from today's point of view, the cautious words of Bodin are strangely prescient: "It will be not commonwealth but anarchy, which is worse than the cruelest tyranny" (Bodin 1992, 92 note "*"). Benhabib, Seyla (1991) "Some Comments on Deconstruction, Justice and the Ethical Relationship" in The Cardozo Law Review 15(4). Cassell's Latin Dictionary, fifth edition (1968) Macmillan, Inc. Derrida, Jacques (1992) "Force of Law: The 'Mystical Foundation of Authority'" in Deconstruction and the Possibility of Justice, edited by Drucilla Cornell, Michael Rosenfeld, and David Gray Carlson. Dyson, Kenneth (1980) The State Tradition in Western Europe: A Study of an Idea and Institution. Oxford University Press. Habermas, Jurgen (1990) Moral Consciousness and Communicative Action, translated by Christian Lenhardt and Shierry Weber Nicholsen. MIT Press. Hobbes, Thomas (1994) Leviathan, edited by Edwin Curley. Hackett Publishing. Kant, Immanuel (1991) Political Writings, edited by Hans Reiss and translated by H.B. Nisbet. Cambridge University Press. (1996) Practical Philosophy, translated and edited by Mary J. Gregor. Cambridge University Press. Schneewind, J.B. (1998) The Invention of Autonomy: A History of Modern Moral Philosophy. Cambridge University Press.
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