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POSTMODERNISM AND POSTMODERN JUDGMENT

Bong-Chul Choi*

I. Introduction
This article attcmpts to give the term "postmodem" its due and proposes
that legal academics take postmodernism seriously. I dare to say that only
a few people know how to deal with the term as of yet. In pursuing the
proper meaning of the term, I have the Korean context in mind. Some might
associate the postmodern with the notion of a historical period and relate
it to post-industrial society. If the term postmodern conveys such an implication, it should be rejected. The postmodern or postmodemism should be
regarded as a type of mood, attitude, thinking and living which is found
everywhere. If one understands non-Euclidean geometry or Heisenberg, if
one feels affection for Eckhardt or Nietzsche, if one does not despise the
teachings of Buddhism, Taoism or what might be called the Eastern way
of life, if one suspects a dichotomy in fact and value, science and ethics
or living and working, if one does not conceive of the Enlightenment as
the most worthy historical product, he/she is already postmodern.
Throughout this paper, I reconstruct postmodemism mainly by relying
on the ideas of contemporary French thinkers. However, I do not intend
to 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 that
the common elements which hold various versions together could be the
recognition of the unnameable and the demand of struggle with it. In this
paper, I will not try to construct a Korean version of postmodernism, but
hope 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 Mystical
Foundation of Authority."' Derrida's writing may, be hard to understand,
because he creates his own terminologies, finds his arguments on contemporary philosophy of language, and above all, wants the readers to stand in
his own territory. Some might complain of Derrida's writing because of its
lack of transparency and plainness. However, I think he performs his best
when he writes ; he regards writing not merely for communication but also
for performance. Although reading his work is difficult, his closures are surprisingly ordinary.
This paper is composed of two parts. In the first part, I try to properly
construct the term "postmodem" as it should be in the Korean context.
In the second part, I show a type of postmodern judgment by examining
Derrida's "Force of Law." My implicit claim in showing it is that postmodern
judgment 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 history
of the term. Scholars have traced the origin of the term to as far back
as 1930s. In 1934, Federico de Onis, a Spanish literary critic, used it to
describe Spanish and Latin American verses which appeared to react against
modernist decorativeness. In 1939, Arnold Toynbee used the term 'postmodem age' to describe the period from World War I onwards ; later, in
1954 he expanded his definition to include from circa 1875 on. According
to Toynbee, the postmodern age is marked by the rise of a new industrial
urban working class in the West, along with the growth of other non-Western
proletariat, non-Christian religions, cult, and new sciences. Despite de Onis'

1 Jacques Derrida, "Force of Law : The Mystical Foundation of Authority," Cardozo

L. Rev.(1990) " 919-1045. Later, this article appeared in a book Decontniaion and the
Possibilitey ofJustice (New.York : Routledge, 1992).

1995) POSTMODERN JUDGING

and Toynbee's use of the term, it did not gain wide repercussions among
the people.
The wide usage of the term must be attributed to the intellectuals in
the fields of architecture, visual and performing arts, music, and literature
in the 1970s and 1980s. Leslie Fiedler raised the question of what form
a new postmodernist criticism might take, and proposed that postmodernist
literature cross the gap between high and popular culture, expanding on
the 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 postmodem text includes not only indeterminacy, but also certain elements of
modernism like urbanism, technologism, dehumanization, primitivism, eroticism, antionominalism experimentalism, and so on. He does not designate
postmodemism as a break from modernism so much as a continuation of
it 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 modern
techniques with something else (usually traditional techniques)." 2 His postmodern aesthetics of double-coding does not aim to achieve integration, or
synthesis among different forms and styles so much as to preserve irony,
ambiguity, and contradiction among them in order to create the moment
of anamnesis or return to the absent center. To him, the postmodemism
presented by Jameson, Lyotard, Baudrillard, Hassan, etc., was late-modernism
which "still committed to the tradition of the new and does not have a
complex relation to the past, pluralism, or the transformation of Western
culture - a concern with meaning, continuity and symbolism."3
Since the late 1970s there has been a shift in the discussion over postmodernism. One factor causing the shift is the influence of the French thinkers
such as Lacan, Foucault, Derrida, Lyotard and Kristeva. These thinkers came
to 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.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

ned the label of postmodemists though most of them remain indifferent

to or even critical of the term postmodem.
Along with the French influence, the discussion over postmodemism
has no longer been confined to issues of artistic matters ; it has been extended
and spilt over into the broader study of cultural complexes. Scholars have
identified certain cultural manifestations as postmodem, investigating why
they have become so prevalent and what their potentials are. Jean Baudrillard,
Fredric Jameson and Terry Eagleton are representatives. They have taken
pessimistic and negative views on postmodem culture and thought. Baudrillard estimates postmodem culture as the cultural tendency from the mimicry
of pseudo reality through the simulacrum and finally to whole destruction
of meaning, i.e. one-way street whose end erases all the differences.
Fredric Jameson, in Postmodernism or the Cultural Logic of Late Capitalism,4 asserts

that postmodemism is simply the cultural product of the logic of late capitalism. According to his analysis, the characteristics of postmodem elements
are the new depthlessness, the replacement of historical explanation by a
whole culture of the image or the simulacrum, and the appearance of a
schizophrenic or decentered subject, and diagnoses their prevalence as the
effects of the market's decentered logic leading to an ever greater global
penetration and colonization. For a way-out, he proposes an expanded depthwish able to offer more comprehensive accounts and stronger theories.
Terry Eagleton, in The Ieology of Aesthetics,5 asserts that the postmodemist
culture is janus-faced. It is radical and iconoclastic but at the same time
conservative and incorporated. Like Jameson, he sees the postmodem assault
on bourgeois high culture, the critique of the replete subject, and the hostility
to uniqueness and distinction as arising from the very logic of commodity
in late capitalism. According to him, "the commodity is transgressive, promiscuous, polymorphous : in its sublime self-expansiveness, its levelling passion
to exchange with another of its kind, it offers paradoxically to bring low

4 Fredric Jameson, Postmodrism or the Cultural Logic of Late Capitalism (Durham Duke

Univ. Press, 1991).

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

1995)

POSTMODERN JUDGING

the very finely nuanced superstructure which serves in part to protect and
promote it."6 Therefore, the logic of commodity is welcomed to consumption
managers, but unacceptable to production regulators who wish to preserve
their uniqueness, difference and privileges.
After pointing out the postmodemism's dependency on commodity economy, he criticizes postmodem projects such as Foucault's and Lyotard's.
He thinks that their confrontation with the unknowable source is so dangerous that they are not capable of blaming terror. He says, "What is valuable
about 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 of
Mussolini as it is of Mayakovsky. "7 Instead, he proposes that all human
projects start with the recognition of such basic needs as food, shelter, association, protection from injury and so on, which he regards as firm biological
nature: otherwise they are hubris.
Jean Francois Lyotard in The Postmodem Condition,8 a key text in the diffusion
of French postmodemism, defines the postmodern condition as 'incredulity
toward the metanarratives,' while designating the modem as what legitimizes
itself with reference to metanarratives, for example "the dialectics of spirit,
the hermeneutics of meaning, the emancipation of the rational and working
subject, or the creation of the wealth."' At the beginning of this book, Lyotard
uses the term postmodem as a periodizing concept and as a correlation
to 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's
postmodem theory is useful. He contends the term postmodern in Lyotard has three connotations. First, an aesthetic sense of the term ; second, deliberations on the current condition
of knowledge; third, a conception of postmodernism as a politics of resistance. Barry
Smart, Modern Conditiom, Postmk-krn Contrersies (London and New York : Routledge, 1992),
175-176.
9 Id, xxiii.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol

23

as societies enter what is known as the postindustrial age and

cultures enter what is known as the postmodern age. This transition
has been under way since at least the end of the 1950s, which
for Europe marks the completion of reconstruction.'
His characterization should not be understood without condition. I wish
that when he wrote, he had paid full attention to the implications of the
passage above. By connecting the 'postmodem' and 'age', and putting the
postmodern age and the postindustrial age side by side, he himself contributes
to the confusion of the term postmodern. The passage should be understood
only as describing the Western capitalist societies, and the postindustrial
shouldn't be regarded as the prerequisite of the postmodem.
Though he explicitly admits, he seems to give up defining the postmodern
in such a way. In a later essay, Lyotard defines the postmodern as "a mood
or better, a state of mind,"" and in Just Gaming, he mentions that "postmodem
is not to be taken in a periodizing sense." 2 He also contrasts the ijtmodem
attitude of ana- with repetition. He says, "the 'post-' of postmodern does
not signify a movement of comeback, flashback, or feedback, that is, not
a 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 (19867), 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 and
the postindustrial is contingent "I don't happen to think that to be pagan [pagan is

almost interchangeable with postmodern] is the essence of human being, nor do I think
that in the dialectic of history a pagan moment is now necessary after the era of religions
and 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.

1995)

POSTMODERN JUDGING

B. What Might Be A Proper Meaning of Postmodemism.

In this section, I will try to construct the meaning of postmodemism
by utilizing the data presented above. Toynbee as a historian uses the term
postmodern as a tool to denote the contemporary period. Federico de Onis,
Leslie Fiedler and Ihab Hassan indicate certain tendency in literature by
postmodernism. Fredric Jameson and Terry Eagleton regards postmodemism
as the product of late capitalism by never forgetting historical materialism.
I think Jameson's charges on postmodernism is not correct because he does
not want to pay attention to the complexity of postmodernism. He describes
postmodernism as lacking in-depth search and refusing comprehensive accounts * they do, however. As a critic, Dana Polan points out, his text of postmodemism is limited to "that sort of upper-West-side-New-York-culture that
is a source of cliched parody in the films of Woody Allen."14
Terry Eagleton warns against the danger of the postnodern politics due
to its relativistic tendency. I agree with him to some extent, but postmodernist
such as Derrida, Foucault, Lyotard, etc. will make distinction between Mayakovsky and Mussolini. Various postmodernism does subscribe prescriptions
though the set of prescriptions is small. Lyotard is blameable insofar as the
definition 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. It
is Kristeva's. In a short essay, "Postmodernism ? " she defines postmodernism
as an effort to signify the imperceptible, unnameable, unthinkable or "to
expand the limits of the signifiable" against "the positive trap, the necessarily
phantasmagorical desire to see a particular spirit - that affirmative, unifying,
convocational, phallic spirit." In her book In the Beginning Was Love, she also
gives an excellent account of postmodern thinking. She writes on the postmo-

14 "Postmodernism and Cultural Analysis Today," in E. Ann Kaplan ed., Postmodrmism

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

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

dem attitude, "I am someone else, I cannot say who. There are things that
cannot be said, and I am entitled to play with them so that I can understand
them better."' 5
Though Lyotard misrepresents postmodernism at the openning of The Postmodern Condition, Lyotard characterizes the postmodem attitude well in other
places. He regards it as an awakening through the paradox of absence and
non-meaning. According to him, postmodernism shares with modernism the
sense of absence or the unpresentable, but it differes from modernism in
that while the mourning of absence in modernism evokes nostalgia, the mourning in postmodernism brings about activation of absence. In his words,
I would say that the modern is the consciousness of the absence
of value in many activities. If we are interested in what is new
in modernity, it is not knowing how to respond to the problem
of meaning. Romanticism, as the absence of meaning and the consciousness of the loss of meaning, but also the activation of the
loss. 6
On the distinction between passive and active nihilism, Raoul Vaneigem
comments that the passive nihilist believes simply in nothing, and passive
nihilism is an overture to conformism. On the other hand, the active nihilist
criticizes the causes of disintegration by speeding up the process. Active
nihilism 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 : Columbia
Univ. 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. It
is 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," in
Walter Kaufmann 8 R., J. Hollingdale tr. The Will to Power (New York : Random House,
1967), Bk I sec. 22.

1995)

POSTMODERN JUDGING

of The Postmodem Condition represents the objects of his criticism. The passage
reads :
Let us wage a war on totality ; let us be witnesses to the unpresentable ; let us activate the differences and save the honor of
the name.18
Paraphrasing it, totality exists in the thought which does not duly pay
attention to otherness and infinity, and which interprets the world in a
ruled and principled manner without recognizing paradoxes of interpretation.
Seeming consensus is often neighbor to convention, and transparent communication is actually exchanged-valued, commodified. Rules and principles are
abstract constructs at the expense of othemess and concreteness. Consensus
demands the sacrifice to silenced dissenters. Therefore we are asked to be
sensitive to incommensurable differences.
In conclusion, I propose that postmodernism be understood as a type
of thinking, living while French postmodernism be regarded as a type of
Western thinking which has been recollected and based on current achievements of philosophy of language. Contemporary postmodernism will be more
comprehensible, when the Eastern version of postmodernism can contribute
to it. Perhaps, the Eastern version of postmodernism might recognize the
value of the Sirens' song retold by Horkheimer and Adorno. In Dialectic
of Enlightenment, they assert that the enlightenment way of living is not
a simple invention of the historical period known as the Enlightenment,
but goes back as early as the Greeks. They offer Odysseus' encounter with
the Sirens as the destructiveness of the Enlightenment ideal of control. Odysseus plugged up the ears of his seamen and tied himself to the mast in
order to escape the allure of the Sirens' song which, Odysseus had heard
from Circe, had an ineffable, incomprehensible, and threatening nature. Prompted by the fear of it, Odysseus chose not to confront the Sirens. In order
to escape the threat, he had to control himself and his oarsmen. Later in

18 Lyotard, The Postmodem Condition, 82.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

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

III. Postmodern Judgment

A Aporia of Judgmmt
Derrida, in his essay, "Force of Law : The Mystical Foundation of Authority," reflects his own concern with the themes of jurisprudence and the
ethics of deconstruction - more precisely deconstructive justice, judging, the
responsibility of judges, and so on. At the beginning of that essay, he says
that his previous writings on Levinas, Hegel, Freud, Kafka, Nelson Mandela,
and the Declaration of Independence are already explorations on the ethics
of 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 ethics
and justice. For the deconstruction of law, Den-ida formulates the following
thesis :
First, the deconstructibility of law, of legality, legitimacy or legitimation (for example) makes deconstruction possible. Second, the
deconstructibility of justice also makes deconstruction possible, indeed is inseparable from it. Third, the result : deconstruction takes
place in the interval that separates the undeconstructibility of justice from the deconstructibility of droit (authority, legitimacy, and
so on).2o

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

19 See,Max Horkheimer and Theodor W. Adorno, Dialeefic of Enlighemmm (New

York : Continuum, 1972), 31-36. For the episode of the Sirens' song, seeHomer, Odyssey,
Bk XIL
20 Derrida, "Faire of Law," 945.

1995)

POSTMODERN JUDGING

ethics of judging, it should be located in the interval between deconstructible

law and undeconstructible justice. Let me pause here in order to introduce
Caputo's recount of the story of deconstructive ethics of judging because
Caputo's recount will make Derrida's arguments more understandable. Caputo explains the Derridean notion of the singular which justice demands : it
is "from the start impossible, a failed project, deferred." 2 The singular requires
the immediacy of a here and now,22 but because it is always already mediated
by representation through philosophical (metaphysical) language, "the singular one is gone, vorbei, passed on, past, absolutely past." 23 He continues

The absolutely singular one is not a past presence but absolutely

past; not a future presence, but absolutely unforeseeable. The
immediacy of the singular is blocked off by the massive mediation
of 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, however
concrete it may be, is destined to failure. The universal is always betrayed
by the incessantly haunting ghost of the singular. Caputo says:
The universal never fits, can never find an absolutely appropriate
application. 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 Research

i Pmooo xx (1991), 14.

22 For a clear understanding of the Derridean notion of here and now, see Eugenio
Donato, "Here, Now/Always Already : Incidental Remarks on Some Recent Characterizations of the Text," Diacritics (Fall 1976) : 24-29.
23 Caputo, "Hyperbolic Justice," 14.
24 Id, 15.
25 Id

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

idiosyncrasies of the particular. It is never possible to prepare the

universal for the disruptiveness of the singular." The lure of the
concrete universal is likewise a failed project 26
According to Caputo, "deconstruction traverses the terrain between the
failed universal and the inaccessible singular, swings across the abyss which
opens 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 justice

demands double responsibility. First, the call of justice evokes the responsibility to the primordial, immemorial which exceeds the actual, and out of
that responsibility, deconstructionists question the metaphysical, philosophical
conceptualization of justice and its normative apparatus which supports it.
The metaphysical apparatus always appropriates radical alterity by homologizing and categorizing it. Thus, the metaphysical, philosophical building of
justice is always subject to deconstruction.
Derrida's deconstruction has often been criticized. The criticism is that
because deconstruction assaults the traditional conceptions of subjectivity,
it erases the possibility of a potent agent of political action, and that because
deconstruction does not provide reliable knowledge and criteria for decisionmaking, it cannot speak of politics.28 Derrida's response is that the limit
of cognitive mastery and philosophical foundation must be experienced. He
says:

26 Id
27 Id, 16.

28 On the summary of charges against deconstruction and response, see Thomas Keenan Deconstruction and the Possibility of Justice," Gardozo L. Rev. 11 (1990), 1676.
The criticism on deconstruction's ethico-political pertinence is based on the observation
that "deconstruction appears to ruin the categories on which political discourse has tried
to found itself for as long as it can rmember, subjectivity and agency, and the reliable
knowledge (whether positively, ttheologically, or hermeneutically determined) that allows
it to act." Seealso Bill Reading, "Deconstruction of Politics," in IAndsay Walters & Wlad
Godzich eds., Reading de Alan Reading (Minneapolis :Univ. of Minnesota Press, 1989), 224.

1995)

POSTMODERN JUDGING

There is no justice without this experience, however impossible

it may be, of aporia. Justice is an experience of the impossible.
A will, a desire, a demand for justice whose structure wouldn't
be an experience of aporia would have no chance to be what
it is, namely, a call for justice.29
The interval or space, the anxiety-ridden moment of suspension is the
only chance for "transformations, indeed juridico-political revolutions."'
Deconstructive legal decision-making revolves around the two impossible
axes : 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
required
to establish itself in the name of a law that must be enforced."3 ' Thus,
Derrida proposes that deconstructive legal decision-making be judging gone
through aporetic experience. Following Derrida, the aporetic experience in
legal decision-making is classified into three parts.
The first aporia comes from the contradictory demands of two heterogenous orders, that is, the order of law, universality, calculability, and the
order of justice, singularity, incalculability. Under the demand of the first
order, a judge must respect the calculable and programmable prescriptions
named law. With the demand of the second order, a judge cannot but deal
with the singular, and thus she must put both orders into negotiation. Derrida
says :
In short, for a decision to be just and responsible, it must, in
its proper moment if there is one, be both regulated and without
regulation : it must conserve law and also destroy it or suspend
it enough to have to reinvent it in each case, rejustify it, at least
reinvent it in the reaffirmation and the new and free confirmation

29 Derrida, "Force of Law," 947.

30 Id., 957.
31 Id, 959.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

of its principle. Each case is other, each decision is different and

requires an absolutely unique interpretation, which no existing,
coded rule can or ought to guarantee absolutely.32
The deconstructionist judge would learn, read, understand and interpret
law by assuming the duty to respond to law, on the one hand, and he/she
would search for the unique singularity of each case by following the duty
to justice. As a result, he/she arrives at the position of not being able to
follow each demand. If he/she follows only the demand of law, he/she
is 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 he
doesn't take any rule for granted beyond his own interpretation, he suspends
his decision, stops short before the undecidable or if he improvises and
leaves aside all rules,"33 he/she is a naive and irresponsible anarchist. Thus,
he/she must arrive at "two significations or two contradictory and very
determinate rules."3" Two very determinate rules are, in his example, respect
for equity and universal rights on the one hand, and respect for the always
heterogeneous and unique singularity of the unsubsumable example, on the
other.
Here comes the second aporia of judging, what he calls the ghostliness
of undecidability. To reach a decision, she must pass the ordeal of undecidability before two determinate rules. She cannot but decide the case before
her, but as soon as she decides, the ghost of the undecidable haunts. The

32 Id
33 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 catastrophe
for 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 accomplish itself, the engulfing must be engulfed and the caving-in cave in. The equilibrium
between the two laws will be attained when absolute right, reconciling objective right
and subjective right, will engulf the two opposites, will make their incessant fall fall. Such
will be, appeasing victory of destiny : Only in the downfall of both sides alike is absolute
right accomplished." in Glas (Lincoln : Univ. of Nebraska, 1986), 174-5.

1995) POSTMODERN JUDGING

ghostliness of undecidability begins to deconstruct from within "any assurance of presence, any certitude or any supposed criteriology that would assure
us 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 deliberation
accompanying undecidability and precipitate urgency of justice. Justice doesn't
allow deferral. Following Kierkegaard, Derrida calls this moment of decision
madness, which is for Kierkegaard divine wisdom. It is a finite moment
of urgency and precipitation.
B. The Logic of Spectre

We cannot reach the immediacy of the objects, and thus we have to

depend on the mediation through the metaphysical language. That is the
chiasmic encounter of Derrida and Levinas. Bemasconi says:
We could fail completely to recognize how far Derrida's early reading of Levinas accomplished the double movement of a deconstruction, if we saw in Violence and Metaphysics only an attempt
to reassimilate Levinas to the tradition. The necessity which imposes itself on Levinas is that of lodging oneself within traditional
conceptuality in order to destroy it. That is to say, if Levinas at
times succumbs to philosophical discourse, that is not a failing
but, 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 (London : Routledge E4Kegan Paul, 1978), 111. Bennington also concedes that the chiasmic
meeting affirms the unavoidable necessity of speaking alterity in the philosophical language
of the Greek logos, in Bennington, "Derridabase" in Bennington & Derrida, Jacques Denida
(Chicago : Univ. of Chicago Press, 1993), 303. See also, Simon Critchley, "The Chiasmus : Levinas, Derrida and the Ethical Demand for Deconstruction," Textual Politics 3/1

(Spring 1989), 102.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

Derrida in reading legal texts emphasizes the call of justice. The guiding
light is ethical responsibility to the call. On the project of deconstruction,
Derrida says, "Deconstruction is, in itself, a positive response to an alterity
which necessarily calls, summons or motivates it. Deconstruction is therefore
a vocation - a response to a call".
In the latter part of Force of Law, Derrida investigates Benjamin's earlier
thought of redemptive, anarcho-messianic politics presented in "Critique of
Violence" (1921). In "The Tower of Babel" (1985), he has already interrogated Benjamin's earlier view on language presented in "On language in General 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 presumes
the necessary contamination of origin, disagrees with Benjamin's account
of 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 genesis
and deterioration of language;

from the language of the original state to

the 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, and
he names the world as it is. The language conveys a spiritual being, that
is, a communicability pure and simple. In pure language, the unsayable does
not exist.
Benjamin marks the Fall as the end of perfection and the beginning
of decay. After the event, language becomes a mere means, and the name
and word degenerate into mediatory signs. Through the subsequent event
of God's destruction of the Babel tower, human language becomes multiplified
and confused. The Babel story recounts that "the tribe of the Shem (the
word Shem means name in Hebrew) wanted to make a name for itself
by building a tower and imposing its language alone on all the peoples
of 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 : Manchester Univ. Press, 1984), 118.

1995)

POSTMODERN JUDGING

the tower, shouting out his name 'Bavel' or 'Babel' which sounds (confusedly) like the Hebrew word which means 'confusion', and imposed linguistic
differentiation on the earth."3 Thus the paradigm of language is shifted from
the order of manifestation to the order of means and representation.
Now, let me read Derrida's reading of "Critique of Violence." In that
essay, Benjamin counterposes two forms of force in Western culture, lawmaking violence and law-conserving violence which originates from "mythical
violence" of the Greek Gods, and the divine violence of the Judaic origin
which destroys the law itself. Derrida's reading shows that Benjamin's distinctions of law-founding and law-preserving violence and of the Greek and
Judaic violence are not pure, but overlap and contain each other, respectively.
First, I will examine the mythical violence of the legal field : law-founding and law-preserving forces. Both Derrida and Benjamin agree that positing
law is in itself an unjustified violence. No new law can found itself by
appealing to existing laws. Derrida reads the founding act of law as double
bind. He says:
A double bind or a contradiction that can be schematized as follows. On the one hand, it appears easier to criticize the violence
that founds since it cannot be justified by any preexisting legality
and so appears savage. But on the other hand, and this reversal
is the whole point of this reflection, it is more difficult, more illegimate to criticize this same violence since one cannot summon it
to appear before the institution of any preexisting law ; it does
not recognize existing law in the moment that it founds another. 39
In short, "The subject of the pure performative (here, the performative
act of founding law) would be no longer before the law, or rather he would
be before a law not yet existing, a law yet to come, encore devant et devant

38 Geoffrey Bennington, "Derridabase," in Bennington & Derrida, Jacques Dmida (Chicago : Univ. of Chicago Press, 1993), 174.
39 Derrida, "Force of Law," 1001.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

venir."
Commonly held views on the relation between founding law and conserving law usually presume the qualitative difference between them. Benjamin
thought the distinction should be clear, but in reality was not. Benjamin's
example was police power. The police have vast power beyond law-enforcing,
equivalent to that of law-makers by publishing ordinances, exercising deliberation, etc. He regards such an impurity as a modem culmination after the
Fall, like the fate of human language which must represent and thus results
in confusion. Benjamin says, "The absence of a frontier between the two
types of violence, the contamination between foundation and conservation
is ignoble, the ignominy of the police.""' Contrary to Benjamin, Derrida regards the impurity and suspension of the distinction as a necessity, the paradox
of iterability.
With regard to the relation of law-founding and law-preserving violence,
Derrida proposes the interpretation according to which the very violence
of the foundation or position of law must envelop the violence of conservation
and 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 what
it claims to found. Thus there can be no rigorous opposition between positioning and conservation, only what I call a differential
contamination between the two, with all the paradoxes .42
Law-conserving acts including judge's decision-making are not merely
a constative act : they assume the full negotiation between performative and
constative out of undecidability. Derrida says, "There is no justesse, no justice,
no responsibility except in exposing oneself to all risks, beyond certitude
and good conscience."" a

40 Id, 993.
41 L4 1005.
42 Id, 997.
43 Id, 1025.

1995)

POSTMODERN JUDGING

Along with the distinction between law-founding and law-conserving

violence, Derrida interrogates another distinction : the mythical violence of
the Greek origin and the divine violence of the Judaic origin. Benjamin counterposes 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 causes
to expiate; instead of threatening, it strikes ; and above all, this is the
essential point, instead of killing with blood, it kills and annihilates without
bloodshed." " Thus the violence of God stands for the decisive realization
of justice, and the destruction of the cycle of decay and the contaminated
repetition of mythical violence. Benjamin's politics is that of returning to
the origin. At this point, Derrida contends that the Benjaminian divine violence 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 comments
on that:
In the measure in which in Benjamin's discourse an authentic originality and destruction are tightly knotted together and mirror each
other, it should be caught in this metaphysical specularity and
which might therefore be more effective in resisting the worst.
Derrida calls this other logic ..... a logic of spectre. Unlike the specularity of the performative of the divine founding and annihilation
that marks Benjamin's interpretation of the mystical postulate, the
spectral logic that Derrida invokes here and elsewhere precludes
the possibility of any ontological or textual resisting point, even
the one presupposed by the theory which claims that meaning
is 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 and
mythical, but this is different from Benjamin's intended distinction. Benjamin's
distinction is that all undecidability is situated, blocked in, accumulated on
the side of mythological violence and all decidability stands on the side
of divine violence. Derrida says that though divine violence is "the most
just, the most historic, the most revolutionary, the most decidable or the
most deciding,"46 it is not accessible to human determination and knowledge.
"On the one hand, decision, justice beyond law and the state, but
without
decidable knowledge, and on the other, decidable knowledge and certainty
in a realm that structurally remains that of undecidable.""7 Thus, the task
of deconstruction, he continues, is to be accomplished "in an impure, contaminating, negotiated, bastard and violent way." "
C. Chiasmic Encounter between Derida and Lemnas.

As the titles of his two major books indicate,49 Levinas' project seeks
to articulate unpresentable infinity, or beyond the Greek philosophy, ontotheology, being and essence. Essence originates from Esse which means interest etymologically, and being is the point of start and destination. The Greek
subject always returns to origin after and by discovering itself in every other.
It is the circuitous journey of Ulysses in opposition to Abraham's forever
wandering. The confrontation with others leads the subject to apprehension,
thereby reducing the othemess of others. Against that tradition, Levinas relies
on and constructs the Judaic tradition which commands the subject to be
subject to errant cause, Ileity. The Good or God orders the subject to bear
witness 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 me
in the way that the Other presents himself, exceeding the idea of the other

46
47
48
49

Id, 1033.
Id, 1035.
Id
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.

1995) POSTMODERN JUDGING

in me."' To face the other is to bear witness to unnameable alterity. It strips

the 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 command, which calls a halt to the availability of consciousness. Consciousness is put into question by a face. The putting into question
is not reducible to becoming aware of this being into question.
The absolutely other is not reflected in consciousness. It resists
it to the point that even its resistance is not converted into a
content of consciousness. The visitation consists in overwhelming
the very egoism of the I; a face baffles the intentionality that
aims 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 which
Levinas'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 of
reciprocity because one's responsibility for the Other surpasses the responsibilities 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 because
I 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. Levinas

mentions 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 least
then we are faced with the problem of knowing who is right and who is wrong, who
is just and who is unjust. There are people who are wrong. in Levinas, Levinas Reader,
ed. by Sean Hand (Cambridge: Basil Blackwell, 1989), 294.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

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

my freedom.
Robert Bernasconi gives an attractive account for reading Levinas. He
contends that Levinas is partly responsible for banal interpretations on his
work, for his texts as a whole are conflicting. But Bernasconi suggests that
Levinas's work cannot be understood properly without considering Levinas's
self-conscious employment of rhetoric. Tracing his idea on the pairs of ethics
and politics, responsibility and justice, we find that interpretations are located
within the range between the two poles of mad responsibility and universal
justice. Bemasconi assumes one important way to get into the right track
lies in the careful exploration of the meaning of often mentioned phrases
in Levinas's works : "desire without satisfaction, eschatology without hope
for oneself, love without eros, gratuitously without worrying about reciprocity,
saying without said, prayer without demand."" 5 Bernasconi maintains that
if one interprets those phrases in a literal sense, Levinas is seen to condemn
us to a form of madness or to "unproductive frustration and self-destructive
guilt."56

He proposes that the meaning of the exclusion marked by "without"

be understood as "Levinas's attempt to mark the moments which interrupt
or disturb the dominant order, though not by opposing it directly."5 7 His
explanation goes on:
The saying is not opposed to the said; desire is not opposed
to need; love is not opposed to expectation of return and so
on with the other phrases. A saying without a said, a desire without
eros, 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 there
is 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 SeeId, 10-11.
57 Id, 14.

1995) POSTMODERN JUDGING

eros, no gift without thought of some reciprocity because, as embodied, we live in a world dominated by the said, eros, economics
and so on. 8
Levinas does not propose to abolish the order of reciprocity, return
and need, but to put into question that order.
Let me move on to the order of reciprocity, return and need which
Levinas acknowledges. As seen above, Bemasconi emphasizes that Levinas's
ethics is, above all, that of suspicion, while recognizing that the human world
needs that order of eros, exchange, return, need, reciprocity, etc. Bernasconi
further 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 have
59
just said but this is not my own theme." "What he has just said" is as
follows :
How is it that one can punish and repress ? How is it that there
is justice ? I answer that it is the fact of the multiplicity of men
and the presence of someone else next to the Other, which condition the laws and establish justice. If I am alone with the Other,
I owe him everything; but there is someone else. Do I know
what my neighbor is in relation to someone else ? Do I know
if someone else has an understanding with him or his victim ?
Who is my neighbor ? It is consequently necessary to weigh, to
think, to judge, in comparing the incommensurable. The interpersonal relation I establish with the Other, I must also establish with
other men; there is thus necessity to moderate this previlege
of the Other ; from whence comes justice. Justice, exercised through institutions, which are inevitable, must always be held in
check by the initial interpersonal relation.6'

58 Id
59 Levinas, Ethics and Infniy, 90.

60 Id, 90.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

As Levinas shows in the first half of the above passage, the moment
of 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 relation
in several places. He says, "The direct encounter with God, this is a Christian
concept. As Jews, we are always threesome: I and you and the Third who
is in our mist. And only as a Third does He reveal himself."6" From the
beginning of the ethical relation of the I and the Other, the third party
intervenes in the ethical relation of I to the Other in the way that it "looks
at 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 the
third party, the metaphysical relation of the I with the Other moves
into the form of the We, aspires to a State, institutions, laws, which
are the source of universality.6 3
This passage indicates to me that Levinas recognizes the necessity of
government and institutions, and takes it for granted that their way of operation is carried out by principles and universality.
In the second half of the above passage, Levinas touches on the problem
of justice. Levinas's justice carries a political function, which is to judge,
criticize, blame and accuse. But it must be empowered, recoiled, intensified
by proximity in order to compare the incommensurable. Levinas says that
if the order of eros, need, exchange, return and reciprocity is not informed
and interrupted by the alterity of all other persons, justice is not worthy
of the name. Thus, the condition of justice is proximity. According to Levinas,
proximity is a derangement of the rememberable time. One can
call that apocalyptically the break-up of time. But it is a matter
of 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.

1995) POSTMODERN JUDGING

said time, which cannot be synchronized in a present by memory

and historiography, where the present is but the trace of an immemorial past."
The proximity dwells prior to and outside ontology, cognition and recuperable 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 himself
in proximity. His function is not limited to the function of judgment, the subsuming of particular cases under a general rule. The
judge is not outside of the conflict, but the law is in the midst
of proximity. Justice, society, the State and its institutions, are comprehensible out of proximity. This means that nothing is outside
of the control of the responsibility of one for other.65
The condition of justice relies on proximity. That is, any project or
program set up by calculation and measurement must be informed and
interrupted by proximity. He has shown us that universality must be interrupted 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 Levinas's proximity can be understood as Derrida's non-site, and in that both
recognize the necessity of disruption of arche by anarchy. But one of the
important differences between them seems to lie in Levinas's relatively strong
recognition of the necessity of the search for a principle. Levinas says:
From responsibility to the problem - such is way. The problem
is posed by proximity itself, which, as the immediate itself, is
without problems. The extraordinary commitment of the Other
with regard to the third party calls for control, to search for justice,

64 Levinas, Otherwise Than Being, 89.

65 Id, 59.

THE KOREAN JOURNAL OF COMPARATIVE LAW

(Vol 23

to society and the State, to comparison and possession, and to

commerce and philosophy, and, outside of anarchy, to search for
a principle. Philosophy is this measure brought to the infinity of
the being-for-the-other of proximity, and it is like the wisdom
of love.6
Why do we need to search for a principle ? It is needed because there
is the third party against which every individual responsibility for the Other
is to be compared, weighed and checked. Search for a principle is seen
as an activity to thematize the differences between the conflicting individual
ethical relations.
Drucilla Cornell translates Levinas's search for a principle as elaborating
principles of justice, that is, constructing proper principles. The question at
this point is whether 'search for a principle' or 'elaborating principle' is
the proper phrase in light of Levinas's thought. One example of Levinas's
67
search for a principle is found in his commentary of the Talmud. In "Pact,"
Levinas says that "general principles and generous principles can be inverted
in the course of their application." 6' He acknowledges the danger of those
principles; "all generous thought is threatened by its own Stalinism." 69
Thus for Levinas, the Talmud's casuistry is 'the special discipline which
studies the particular case in order to identify the precise moment within
it when the general principle is at risk of turning into opposite."70 Inferring
from Levinas's position presented in Pact, his search for a principle is far
from establishing well-organized system of abstract principles from which
a conclusion is deducted. It is more a questioning of the totalizing effect
of that system. On the one hand, the search for a principle can be seen
as an activity of elaborating principles. For example, a foundational principle
that all citizens should be treated with egual respect and concern can be

66 Id, 161.
67 Levinas, The Letnis Reader, 220.
68 Id
69 Id
70 Id

1995)

POSTMODERN JUDGING

countered by the concern of a particular and, as a result, it is more differentiated and so elaborated. On the other hand, the elaboration is also an activity
of disrupting the principle.
Thus, the search for a principle should be understood as a paradoxical
necessity. The relationship between the Saying and the Said explains the
paradox. According to Susan Handelman :
Though the saying is non-thematizable, non-representable, beyond
the gatherings of history and memory, an-archic (i. e., prior to
all arche, origins and foundations), it still always must be said,
betrayed in the very language one uses to speak about it. The
said, however, retains a trace of the saying and Levinas redefines
the phenomenological reduction precisely as the movement back
to the saying from the said. In it the indescribable is described.
(Otherwise Than Being, 53) ; philosophy is indescretion in relation
to the inexpressible. (Solomon Malka, Lire Levinas, 108)"'
Philosophy appears to justify the laws of being and of the city, but
at the same time criticizes them. That is also the politics of decision.
Let me move from Levinas to Drucilla Cornell. She seems to me to
propose 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 elaborating principles of justice to go beyond the Derridean impasse of politics and
the aporia of judging. Thus, she contends:
We cannot also escape our responsibility, particularly if we are
law professors, judges, and lawyers, to elaborate principles of justice
which can guide us in an effort to synchronize the competing
claims of individuals and to adjudicates between divergent interpretations of doctrines.72

71 Susan Handelman, "Parodic Play and Prophetic Reason : Two Interpretations of

Interpretation," Poetics Today 9/2 (1988), 411.
72 Cornell, Philosophy of the Limit, 100.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 23

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."

As far as law and legal institutions are concerned, we may not escape
the logic of universality and impersonality. The language of modern law
assumes itself "in service to the system of generalized statements, clauses
and abstract provisions which give the appearance of applying in a purely
objective, machine-like way without the least admixture of circumstantial
interest and motive." " Legal language has exerted violence to the singular.
Nevertheless, Levinas and Cornell give the existence of law and legal institutions necessity. Cornell says:
It is true that legal principles inevitably categorize, identify, and
in that sense violate difference by creating analogies between the
like and the unlike. If we cannot escape this violence of difference
in a legal system, however, we can still develop principles that
minimize it."
Now, let me clarify the difference between Levinas and Derrida through
the confrontation between a Derridean and a Levinasian scholar : Thomas
Keenan and Drucilla Cornell. Cornell's text, Keenan reads, is "Post-Structuralism, the Ethical Relation and the Law,"76 in which Cornell formulated her
position that she maintains in her recent book, Philosophy of the Limit. Keenan
reads Cornell's writing as a hesitation between "politically provocative operations" and "ethico-political vigilance and responsibility"77 because she knows

73 Id., 106.
74 Christopher Norris, "Law, Deconstruction and the Resistance to Theory," in Deconstruction 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.

1995)

POSTMODERN JUDGING

the former cannot be pursued without sacrificing the latter, the alterity of
the 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. When
we interpret, we posit the very ideal or the ethical we promise
to remain true to it. Or promise of fidelity to the ethical or to
the ideal is precisely what breathes life into the dead letter of
the 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 because the law cannot fully realize the call to the ethical, then
we can see that we have our basic task cut out for us, at least
for those of us who are lawyers and law professors. To heed the
call to responsibility within the law is both to remind our students
of the disjuncture between law and the ideal and to affirm our
responsibility to make promise to the ideal, to aspire to counter
the violence of our world in the name of universal justice.78
Keenan contends Cornell's "aspiration to nothing short of universal justice, the inspiriting of the dead letter with the breath of life does appear
to lack the symmetrical negativity, the respect for impossibility, often associated with deconstructive gestures. To breathe life into the dead letter, to
mark the disjunction between actual and possible (as ideal), hence to offer
against particular violence the protection of the universally just, all suggest
a certain resurfacing of the phono- or logo-centrism which has dominated
(and largely crippled) critical political discourse and to which deconstruction
has formulated the most startling challenges."79 Thus, Keenan concurs with
Derrida. He says "Justice and responsibility are only possible, if they have
a 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.

THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol

23

and unpredictably recurring impossibility ..... The 'we' here can be a community without any ground in any common likeness and without a universal
law, without the present in which any subject might articulate itself, but
only a terrifying proximity."80 Keenan's remark is what Derrida has already

said. According to Derrida :

A community of decision, of initiative, of absolute initiality, but
also a threathened community, in which the question has not yet
found the language it has decided to seek, is not yet sure of its
own possibility within the community. A community of the question about the possibility of the question. This is very little - almost
nothing - but within it, today, is sheltered and encapsulated an
unbreachable dignity and a duty of decision. An unbreachable
responsibility. Why unbreachable ? Because the impossible has
already occured."81

IV. Concluding Remarks

In the above, I proposed that postmodernism be defined as a type of
thinking, which already happens. Its elements are first, the recognition of
the unnameable and second, play on it as shown in Kristeva's defintion
of postmodemism very well. The rhetoric of the unnameable implies that
truth is unattainable. It is a warning against the optimism of the Enlightenment humans.
Likewise, for most of postmodemists, legal decision-making is the task
of determining the indeterminable. If Lacan and Lyotard had spoken of it,
they would have taken the position similar to Derrida. Foucault told about
law and legal decision-making. I will not espouse Foucault's view here, but
he is not much different from Derrida, Lacan, and Lyotard. Perhaps, one
might say that postmodernism's understanding of judging has been told since
antiquity. It is very familiar to us. The recent postmodemism retells, and
urges us to activiate that view in theory and practices.
80 Id, 1681.
81 Derrida, Writing and Diffrence, 121.