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Published : November 06, 2016 | Author : Priyanka Chakraborty
Category : Jurisprudence | Total Views : 1962 | Rating :

Priyanka Chakraborty
LL.B (IP), IIT Kharagpur

Deconstruction theory: Its importance in law

Commonly known as inversion of hierarchy theory, this theory was put forward by Jacques Derrida which gave rise to a seismic shift in critical thought.

Jacques Derrida introduced the concept of ‘deconstruction’ in his book Of Grammatology, published in France in 1967 and translated into English in 1976.

‘Deconstruction’ became a banner for the advance guard in American literary studies in the 1970s and 80s, scandalising departments of English, French, and comparative literature. Deconstruction rejected the project of modern criticism: to uncover the meaning of a literary work by studying the way its form and content communicate essential humanistic messages.

Deconstruction, like critical strategies based on Marxism, feminism, semiotics, and anthropology, focuses not on the themes and imagery of its objects but rather on the linguistic and institutional systems that frame the production of texts.

As an aesthetic theory pertaining to Postmodernism, Deconstruction enables us toslice through the history of art and lay bare all preconceived notion, forcing us toexamine every aspect of our relation to the world, to the notion of culture and each other.

Deconstructionism is basically a theory of textual criticism or interpretation that denies there is any single correct meaning or interpretation of a passage or text.

The heart of the deconstructionist theory of interpretation are two primary ideas :-

First is the idea that no passage or text can possibly convey a single reliable, consistent, and coherent message to everyone who reads or hears it.

The second is that the author who wrote the text is less responsible for the piece's content than are the impersonal forces of culture such as language and the author’s unconscious ideology- that is “Separate text from the Author”.

It is better to explain what deconstruction is not than what it is.

According to Derrida, deconstruction is not an analysis, a critique, or a method. Deconstruction is a constant reminder of the etymological link between ‘crisis’ and ‘criticism’. It’s a theory to bring out the hidden falacity of law. There are various fields in which we regularly commit mistakes, but are unable to find those out, this theory by its inherent nature helps to find the loopholes.

How Deconstruction Works

Deconstruction’s reception was coloured by its intellectual predecessors, most notably structuralismand New Criticism. Beginning in France in the 1950s, the structuralist movement in anthropology analyzed various cultural phenomena as general systems of “signs” and attempted to develop “metalanguages” of terms and concepts in which the different sign systems could be described. Structuralist methods were soon applied to other areas of the social sciences and humanities, including literary studies. Deconstruction offered a powerful critique of the possibility of creating detached, scientific metalanguages and was thus categorized (along with kindred efforts) as “post-structuralist.” Anglo-American New Criticism sought to understand verbal works of art (especially poetry) as complex constructions made up of different and contrasting levels of literal and nonliteral meanings, and it emphasized the role of paradox and irony in these artifacts. Deconstructive readings, in contrast, treated works of art not as the harmonious fusion of literal and figurative meanings but as instances of the intractable conflicts between meanings of different types. They generally examined the individual work not as a self-contained artifact but as a product of relations with other texts or discourses, literary and nonliterary. Finally, these readings placed special emphasis on the ways in which the works themselves offered implicit critiques of the categories that critics used to analyze them.

‘Deconstruction’ takes apart such oppositions by showing how the devalued, empty concept lives inside the valued, positive one. The outside inhabits the inside. Consider, for example, the opposition between nature and culture. The idea of ‘nature’ depends on the idea of ‘culture’, and yet culture is part of nature. It’s a fantasy to conceive of the non-human environment as a pristine, innocent setting fenced off and protected from the products of human endeavour—cities, roads, farms, landfills.

The fact that we have produced a concept of ‘nature’ in opposition to ‘culture’ is a symptom of our alienation from the ecological systems that civilisation depletes and transforms.

A crucial opposition for deconstruction is speech/writing. The Western philosophical tradition has denigrated writing as an inferior copy of the spoken word. Speech draws on interior consciousness, but writing is dead and abstract. The written word loses its connection to the inner self. Language is set adrift, untethered from the speaking subject. In the process of embodying language, writing steals its soul. Deconstruction views writing as an active rather than passive form of representation. Writing is not merely a bad copy, a faulty transcription, of the spoken word; writing, in fact, invades thought and speech, transforming the sacred realms of memory, knowledge, and spirit. Any memory system, in fact, is a form of writing, since it records thought for the purpose of future transmissions.

Deconstruction's central concern is a radical critique of the Enlightenment project and of metaphysics. One typical form of deconstructive reading is the critique of binary oppositions, or the criticism of dichotomous thought. Examples include:-
# speech over writing
# presence over absence
# identity over difference
# meaning over meaninglessness
# life over death
# light over darkness

The “privileging” of speech over writing is based on what Derrida considers a distorted (though very pervasive) picture of meaning in natural language, one that identifies the meanings of words with certain ideas or intentions in the mind of the speaker or author. Derrida’s argument against this picture is an extension of an insight by the Swiss linguist Ferdinand de Saussure. For Saussure, the concepts we associate with linguistic signs (their “meanings”) are only arbitrarily related to reality, in the sense that the ways in which they divide and group the world are not natural or necessary, reflecting objectively existing categories, but variable (in principle) from language to language. Hence, meanings can be adequately understood only with reference to the specific contrasts and differences they display with other, related meanings

This deconstruction is effected in two ways:-
First attempts to compensate for these historical power imbalances, undertaking the difficult project of thinking through the philosophical implications of questioning and presenting complications to show the contingency of such divisions.

The second way involves the emergence or eruption of a new conception.

The oppositions challenged by deconstruction, which have been inherent in Western philosophy since the time of the ancient Greeks, are characteristically “binary” and “hierarchical,” involving a pair of terms in which one member of the pair is assumed to be primary or fundamental, the other secondary or derivative.

Examples include nature and culture, speech and writing, mind and body, presence and absence, inside and outside, literal and metaphorical, intelligible and sensible, and form and meaning, among many others.

Deconstruction can be called upon to reveal the contradiction that emerge when thinking is pushed against its limitations in various problematic situations. Law can be seen as the discourse which more than any other translates the effect of self legitimising power into a knowledge. Deconstruction is chiefly concerned with logic of value laden binary distinctions, contrasting terms which always can be shown to exist in a state of reciprocal dependence.

For example:- To a normal person it is a very common noting that light is the base of our existence. But 24 hours light will definitely hamper the normal being of a human. So there are contrasting truth of existence, that both light and darkness is foundational.

So this theory helps us to discover the basic crux of reality which would otherwise go unnoticed.

Application of this theory in legal studies helps in basically three different ways. Those are:-

First, deconstruction provides a method to criticise critical legal doctrines.

Second, deconstructive techniques can show how doctrinal arguments are informed by and disguise ideological thinking.

And thirdly, deconstructive theory provides a new kind of interpretive strategy and a critic of conventional interpretations of legal texts.

The “privileging” of speech over writing is based on what Derrida considers a distorted (though very pervasive) picture of meaning in natural language, one that identifies the meanings of words with certain ideas or intentions in the mind of the speaker or author.

In the United States, the Critical Legal Studies movement applied deconstruction to legal writing in an effort to reveal conflicts between principles and counter principles in legal theory. The movement explored fundamental oppositions such as public and private, essence and accident, and substance and form.

One can use deconstructive arguments to attack categorical distinctions in law by showing that the justifications for the distinction undermine themselves, that categorical boundaries are unclear, or that these boundaries shift radically as they are placed in new contexts of judgment.

Any hierarchical opposition of ideas, no matter how trivial, can be deconstructed.

Deconstruction is more than a clever intellectual parlour game. It is a means of intellectual discovery, which operates by wrenching us from our accustomed modes of thought.

The basic technique of reversing conceptual privileging has obvious applications to legal and policy argument. Law is full of conceptual oppositions because it is full of distinctions. A distinction creates a conceptual opposition because it separates things inside the category from things that fall outside it.

Deconstruction involves a process substantially different from merely trashing one’s position.

Deconstruction is the subject of at least three main types of criticism:-
· Lack of usefulness
· Unintelligibility, Meaninglessness
· Lack of seriousness and transparency

Critics take issue with what they believe is a lack of seriousness and transparency in deconstructive writings, and with what they interpret as a political stance against traditional modernism.

In addition, critics often equate deconstruction with nihilism or relativism and criticize deconstruction accordingly.

Deconstructionism is part of a movement called post structuralism. Like deconstructionism, this movement has many problems with it. Post structuralism builds on many ideas developed by structuralism, its precursor.

Deconstruction theory questions the fundamental conceptual distinctions, or “oppositions,” in Western philosophy through a close examination of the language and logic of philosophical and literary texts.

A common criticism of deconstruction is that it is inherently self-contradictory because while it asserts that all linguistic meaning is indeterminate or uncertain, this assertion is strongly believed to be determinate or certain.

Also, while it maintains that nothing is true, this relativist statement is treated like an absolutely true canon. This criticism, however, may be incorrect, since people who adhere to deconstruction are usually aware that it cannot escape itself.

The diffusion of the theory was met with a sizeable body of opposition. Some philosophers, especially those in the Anglo-American tradition, dismissed it as obscurantist wordplay whose major claims, when intelligible, were either trivial or false. Others accused it of being ahistorical and apolitical. Still others regarded it as a nihilistic endorsement of radical epistemic relativism. Despite such attacks, deconstruction has had an enormous impact on a variety of intellectual enterprises.

Since the surfacing of the term ‘deconstruction’ in design journalism in the mid-1980s, the word has served to label architecture, graphic design, products, and fashion featuring chopped up, layered, and fragmented forms imbued with ambiguous futuristic overtones.

In all the fields it influenced, deconstruction called attention to rhetorical and performative aspects of language use, and it encouraged scholars to consider not merely what a text says but rather on the relationship—and potential conflict—between what a text says and what it “does.” In various disciplines, deconstruction also prompted an exploration of fundamental oppositions and critical terms and a re-examination of ultimate goals.

We argue that deconstruction is not a style or ‘attitude’ but rather a mode of questioning through and about the technologies, formal devices, social institutions, and founding metaphors of representation. Deconstruction belongs to both history and theory. It is embedded in recent visual and academic culture, but it describes a strategy of critical form-making which is performed across a range of artefacts and practices, both historical and contemporary.

Deconstruction does not show that all texts are meaningless, but rather that they are overflowing with multiple and often conflicting meanings.

Either reality is objectively knowable or reality is not objectively knowable. Either absolute truth exists or absolute truth does not exist. Either there is one way to truth or there is no one way to truth. Either there is one way to God or there is no one way to God. Since the second statements in each of these four sentences are clearly false, we must conclude, therefore, that reality is indeed objectively knowable, that absolute truth does indeed exist, that there is indeed one way to truth, and that there is indeed one way to God.

Similarly, deconstruction does not claim that concepts have no boundaries, but that their boundaries can be parsed in many different ways as they are inserted into new contexts of judgment.

Although people use deconstructive analyses to show that particular distinctions and arguments lack normative coherence, deconstruction does not show that all legal distinctions are incoherent. Deconstructive arguments do not necessarily destroy conceptual oppositions or conceptual distinctions. Rather, they tend to show that conceptual oppositions can be reinterpreted as a form of nested opposition.

A nested opposition is an opposition in which the two terms bear a relationship of conceptual dependence or similarity as well as conceptual difference or distinction. Deconstructive analysis attempts to explore how this similarity or this difference is suppressed or overlooked.

Hence deconstructive analysis often emphasizes the importance of context in judgment, and the many changes in meaning that accompany changes in contexts of judgment. Although deconstructive arguments show that conceptual oppositions are not fully stable, they do not and cannot show that all such oppositions can be jettisoned or abolished, for the principle of nested opposition suggests that a suppressed conceptual opposition will usually reappear in a new guise.

Moreover, although all conceptual oppositions are potentially deconstructible in theory, not all are equally incoherent or unhelpful in practice. Rather, deconstructive analysis studies how the use of conceptual oppositions in legal thought has ideological effects: how their instability or fuzziness is disguised or suppressed so that they lend unwarranted plausibility to legal arguments and doctrines. Because all legal distinctions are potentially deconstructible, the question when a particular conceptual opposition or legal distinction is just or appropriate turns on pragmatic considerations.

Hence, deconstructive arguments and techniques often overlap with and may even be in the service of other approaches, such as pragmatism, feminism or critical race theory

Some philosophers, especially those in the Anglo-American tradition, dismissed it as obscurantist wordplay whose major claims, when intelligible, were either trivial or false. Others accused it of being ahistorical and apolitical. Still others regarded it as a nihilistic endorsement of radical epistemic relativism. Despite such attacks, deconstruction has had an enormous impact on a variety of intellectual enterprises.

# https://www.typotheque.com/articles/deconstruction_and_graphic_design_history_meets_theory , Last Accessed- 5/11/2015
# http://www.academia.edu/2206231/On_Deconstruction_as_an_Aesthetic_Theory , Last Accessed- 29/10/2015
# http://www.gotquestions.org/deconstructionism.html , Last Accessed- 26/10/2015
# http://www.mohamedrabeea.com/books/book1_4004.pdf , Last Accessed-26/10/2015
# Ibid at p. 1
# http://www.newworldencyclopedia.org/entry/Deconstruction , Last Accessed-29/10/2015
# http://www.britannica.com/topic/deconstruction, Last Accessed-27/10/2015
# http://www.jstor.org/stable/1410052?seq=2#page_scan_tab_contents , Last Accessed-26/10/2015
# http://www.jstor.org/stable/796361?seq=2#page_scan_tab_contents , Last Accessed-30/10/2015
# http://www.yale.edu/lawweb/jbalkin/articles/deconessay.pdf , Last Accessed-31/10/2015
# http://www.yale.edu/lawweb/jbalkin/articles/decprac1.htm , Last Accessed-31/10/2015
# http://www.yale.edu/lawweb/jbalkin/articles/deconstructionslegalcareer1.pdf, Last Accessed-31/10/2015
# http://www.answers.org/issues/derrida.html ,Last Accessed- 11/11/2015
# Ibid at p. 2
# Ibid at p. 1
# Ibid at p. 4
# http://www.yale.edu/lawweb/jbalkin/articles/deconessay.pdf , Last Accessed-2/11/2015
# Ibid at p. 4


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