*We can think of a system of law as a community’s attempt to realize human ends. This presupposes a description of the good and bad in human nature: what people want from their lives and what their limitations are. This description necessarily involves privileging of certain aspects of human nature over others. Later, we justify our system by claiming that it is the best, given the natural constraints of the human condition.
For example, an advocate of laissez-faire might argue that, given the natural self-interestedness of people, unregulated market transactions are the best way to realize human goals. But the deconstructive critique reminds us that our social vision and system of laws are not based upon human nature as it really is, but rather upon an interpretation of human nature, a metaphor, a privileging. We do not experience the “presence” of human nature; we experience different versions of it in the stories we tell about what we are “really like.” These stories are incomplete; they are metaphors and can be deconstructed. Too often we forget that our systems of law are based upon metaphor and interpretation; we mistake the dominant or privileged vision of people and society for real “present” human nature, as Rousseau confused speech with the presence of thought.
At that point, the metaphor becomes mistaken for what it describes. But latent within the metaphor is a countervision that can be located and brought to the surface through deconstruction. It exists within the privileged conception because the latter ultimately depends upon it in a relation of differance.
Any social theory must emphasize some human values over others. Such categorizing necessarily involves a privileging, which in turn can be deconstructed. But the goal of deconstruction is not the destruction of all possible social visions. By recalling the elements of human life relegated to the margin in a given social theory, deconstructive readings challenge us to remake the dominant conceptions of our society. We can choose to accept the challenge or not, but we will no longer cling to our social vision blindly. Nor can we assume that this vision is the “real essence” of human nature because that would be a claim to have experienced presence, an experience that Derrida denies that we can ever have.
As Robert Gordon has observed, people “build structures, then act as if (and genuinely come to believe that) the structures they have built are determined by history, human nature, economic law.”* Deconstruction allows us to see that ideologies are signs or metaphors that describe social life. They are privileged conceptions of social reality; they are supplements, which can in turn be supplemented. Like Derrida’s signs, they are not self-sufficient, but ultimately depend upon the very aspects of human life that they deny and from which they differentiate themselves. Every ideology suffers from an elementary lack: its dependence on what it denies, on what it is exalted over. This lack, this differance, is what we seize upon and exploit in a deconstructive reading.
We now see that the legal deconstructor deconstructs ideologies, which are manifested in particular legal doctrines. By challenging what is “given,” deconstruction affirms the infinite possibilities of human existence. By contesting “necessity,” deconstruction dissolves the ideological encrustations of our thought.
Let us consider, as an example, a published opinion of a judge appearing in a case reporter. What is the legal effect of this opinion on subsequent cases? The simple theory of interpretation would suggest that (if the precedent is binding) what the judge/author intended is the principle that controls succeeding cases. However, this will not do. The intent of the author does not control, but rather the interpretation of the author’s intent as derived by subsequent readers of the text controls. It is the text as read, and not the text as written, that becomes the law.
In addition, the Rule of Law is based upon the premise that it is not the individual wills of people that control, but laws passed by elected representatives or case law construed and developed by judges. Rule by the arbitrary will of persons would violate the Liberal principle of autonomy;* social coercion is not achieved according to arbitrary will, but according to general, equally applicable rules. Once the rules are established by the governing authority, the rules constitute the authority for deciding cases. Thus, the Rule of Law presupposes that texts rule, and not the persons who created them.
Of course, in deciding the proper application of the rule, we look to the purpose of the governing body that created it. However, that body may not have had a single purpose or it may not have explicitly considered the factual situation at issue. Indeed, many of the legislators may not have read the measure thoroughly before voting on it.
The “purpose” used by a legal interpreter or decisionmaker is not the pure present purpose of the creator of the legal text. Instead, it is a constructed purpose: a reading of the text (a statute or decision) and of other texts (legislative history) in a particular context. The “purpose” that we discover and use in the application of a legal rule comes from texts, and not from the author.*