From jurisdiction to juriswriting: deconstruction at the limits of the law

Matthews, Daniel (2015) From jurisdiction to juriswriting: deconstruction at the limits of the law. PhD thesis, Birkbeck, University of London.

Abstract

Juris-­‐diction is the “speaking of the law,” the performative and enunciatory mode of normativity. As the expressive register of the law, jurisdiction names practices for declaring, showing and determining the limits and possibilities of legality. Read in these terms, jurisdiction poses centrally important questions to law and jurisprudence but, as a principle in its own right, it has received little attention. Contributing to a small but growing critical literature on jurisdiction this thesis contends that jurisdiction has a unique character that deserves careful theorising. Taking the common law tradition as its primary site of engagement, the thesis argues that jurisdiction has a dual aspect, functioning to both offer a ground for positive or formal law and reflect an extant set of informal practices. In this sense, jurisdiction operates as a third term for the law, mediating between two lawful registers: the positive law and a “law of originary sociability.” I argue that, though attempting to fix and determine this relation, jurisdiction is marked by ambivalence and instability. This indeterminacy, however, is often overlooked; jurisdiction is presented as if it were simply a matter of sovereign force or fiat. Rather than conceive jurisdiction as an expression of the law’s sovereign authority, the thesis argues that jurisdiction is a privileged point at which we can see the law’s fragility. Jurisdiction, then, is a legal technique open to critical intervention and interruption. Such strategies of intervention, that seek to occupy jurisdiction’s function but articulate it otherwise, I name “juriswriting.” My approach to jurisdiction is developed through the philosophy of Jacques Derrida and Jean-­‐Luc Nancy. Both thinkers understand law to have two distinct, but related, senses. On the one hand, there is the law as positive, determinative and violent, on the other hand, law is presented as inoperative and indeterminative, connected either to the law of différance or an ontological assertion of our “being-­‐with” (Mitsein). Both Derrida and Nancy reserve a place for “law” that exceeds the positive law and is, in fact, bound to it in a paradoxical double bind, both providing its conditions of possibility and denying its full efficacy. This characterisation of a doubled aspect to law provides the theoretical frame for my understanding of jurisdiction and is traced through my engagements with Kafka; the sixteenth century constructions of the common law; jurisdiction’s performative and declaratory mode; as well as jurisdiction’s role in bringing political community into relation with the law. The engagement with Derrida and Nancy not only provides the theoretical orientation for this study of jurisdiction but represents a second strand to the argument pursued in the thesis. Moving away from the Levinasian inspired understanding of deconstruction and the law of the 1990s, the thesis seeks to offer a more holistic reading of Derrida’s work, drawing on both his later texts with a specifically juridico-­‐political bent, as well as the earlier interventions on writing and speech act theory. Nancy – particularly his ontology of “being-­‐with” and his work on community – provides a useful supplement to Derrida’s thinking. As the ethical readings of deconstruction in the 1990s turned to Levinas, I turn to Nancy in order to foreground a political current within Derrida’s work. Reading Derrida with Nancy allows me to develop a sense of the political possibilities at stake in reimagining jurisdictional practices and techniques, particularly important for my understanding of juriswriting.

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