Textual properties: The limit of law and literature – Towards a Gothic jurisprudence

Abstract

Textuality within the Western tradition has functioned in Derrida's analysis as the essential, yet disavowed supplement of a logos that perpetually sets itself against the necessary interventions of writing. Derrida compares textuality to a pharmakon, an ambivalent substance that has the capacity to act as both poison and cure. The ‘cure’ that textuality offers to the law pertains to the law's inability to establish its own permanence, or presence, without some literary intervention: only once it is ‘put into writing’ does the law remain ‘on record’, its permanence ‘ensured [by the text] with the vigilance of a guardian’ (Derrida, 2000b, p. 113). At the same time, however, textuality could be said to commit a kind of crime against the logos: it improperly appropriates the ‘presence’ of the law, steals it and substitutes itself for it. Writing is, as Maurice Blanchot puts it, ‘the enemy of all relationships of presence, of all legality’ (Blanchot, 1987, p. 156). The law's ‘presence’ nevertheless depends upon this criminal narrativity. In particular, the emergence of law requires the emergence of a narrative capable of resolving the trauma that attends the inception of communal and individual subjectivity: the law acquires its ‘presence’ only after a certain violent communal fantasy has established a vital untruth about the law's origins. The founding moment of Western law is a representation of a fictive transgression that serves to account for the terrifying, symbolically unrepresentable rupture that separates the individual and the community from the pre-symbolic void. In order for the law to take its place, it is necessary to stage a ‘crime’ and then to re-present it as the law's sure foundation. This crime is parricide and Derrida links it explicitly to the advent of narrativity as the law's uncanny, necessary condition of being:[…] this quasi-event bears the marks of fictive narrativity (fiction of narration as well as fiction as narration: fictive narration as the simulacrum of narration and not only as the narration of an imaginary history). It is the origin of literature as well as the origin of law – like the dead father, a story told, a spreading rumour, without author or end, but an ineluctable and unforgettable story. (Derrida, 1992, p. 199)

Citation

Chaplin, S. (2008), "Textual properties: The limit of law and literature – Towards a Gothic jurisprudence", Sarat, A. (Ed.) Special Issue Law and Literature Reconsidered (Studies in Law, Politics, and Society, Vol. 43), Emerald Group Publishing Limited, Leeds, pp. 113-131. https://doi.org/10.1016/S1059-4337(07)00605-9