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The Story of Non-Origin of Law: Breaking down Before the Law

  • Writer: The Demiurgic
    The Demiurgic
  • May 9, 2023
  • 6 min read

Jacques Derrida was arrested in 1982 by the Czechoslovakian government for leading a conference without government authorization and charged with drug trafficking. He claimed the drugs were planted on him, but this reasoning was refuted on the lines that every drug trafficker would use the same pretense. This Kafkaesque experience of Derrida where he was unaware of his true crime, the true mastermind behind the conspiracy and the true reason behind his arrest forms the background of his essay "Before the Law". "Before the Law" is a classic deconstructionist essay on Kafka's famous text "Before the Law" which was first published as a part of his work "The Trial".

In this essay, Derrida questions legal admissibility- what separates 'Law' from 'Literature'. (Using the word fiction instead of literature gives us a better understanding of Derrida's contention, hence in the coming parts of the blog both will be used interchangeably).


Themes

  1. Law vs. Literature

  2. Legal and non-legal space

  3. Search for genesis of Law and the story of Non-origin

  4. Differance- Deferral of any ultimate meaning in a word, herein for example- the word Law itself

  5. Singular and Universal Law

  6. Unsophisticated and Sophisticated understanding of Law

  7. Accessibility to Law

  8. Origin of Morality

  9. Non-distinction of boundaries

  10. Law of the Laws and its enforcement

  11. Narrow understanding of Law and every action related to Law itself

  12. Signifier and signified


Derrida in the beginning of his essay lays down four axiomatic presuppositions; the minute details that we as readers of the parable must have overlooked but they form the actual truth and question of the entire story. These presuppositions are:

  1. Identity of the text guaranteed by Law: Every text has two identities. One is its intrinsic qualities which includes its genre, theme, background and the like. The second is the legal identity more specifically copyright. Law guarantees a piece of "Literature" an identity, but how does it differentiate between what is Literature and what is not Literature? Who has/had that authority to differentiate what comes in the legal domain and what does not come therein? Why a myth or a lie is not literature but a fantasy work is literature? Why some experiences (biographies/autobiographies) are literature while some (stories told by our parents, say for example) are not literature.

  2. Identity and existence of the author: Similarly, Law guarantees the label of "author' or the rights related to authorship to some creators and not all. Where does it draw the boundary and on what basis? What is the criteria? Why is IT the criteria? Who has/had the authority to identify and label?

  3. Both of the above presuppositions point towards one conclusion- there exists two spaces- Legal and Non-legal. There exists a boundary which separates Law from Literature, Legal from Non-Legal.

  4. But none of us know who judges and why. Who was given the authority and why?


Discussion

When we say "Before the Law" in its idiomatic sense we signify that a person is to be on a trial. In almost every language, the connotation is pretty much the same. The phrase 'before the the law' is the (signifier) of the image/ contextual meaning (signified) that we derive from it. In its metaphorically literary sense it would mean to 'face the law' which is impossible since Law has no physical state or form. To face something abstract is a fictional idea then why is this idiom a 'Legal' act and not a 'Literary' act? What is this boundary that differentiates the two and gives us definitions of legal and non-legal which cannot be studied in a concrete sense because the genesis is unknown. We don't know why we treat a phrase as a title in one context and as a part of the sentence in another. The title to the essay "Before the Law" stands in a different hierarchy as THE title of the text, however when used in a sentence it gains its idiomatic meaning of facing the law. As a title it also means what comes before law, the question of its genesis but from where are we deriving this distinction in homonymity and synonymity. The parable pretty much describes coming 'before the law', then what makes it a fictitious literature piece when the act itself is 'real'. What makes some statement legally admissible and some not? Who is the judge?


Kafka's story divides space into Legal and Non-legal, the deciding authority of which is unknown. People might say that Pure Morality (Kantian Philosophy) is the genesis of Law but then Law becomes a singular entity of which every person sets a different parameter and boundary. However, Law is a general entity; it is decided by some to be applicable on supposedly 'everyone', but this accessibility also breaks down as the 'gatekeepers' deny actual access to face the law while acting only as mere instruments in the exercise of Law. The gatekeepers decide (in the parable the gatekeeper decides and orders the country men to keep him out of the gate) but Law can never actualise itself to deliver face-to-face. What we experience when we are 'before the law' is merely a superficial manifestation of confronting Law when in reality all that we actually get access to is an instrument. Law remains way beyond a common man's reach; made by few, applicable on many barring a few.


The entire understanding of Law is based on juxtaposition. We understand it as what is allowed and what carries deterrence in the form of punishment. This difference is what makes law Law. To understand the Legal space, we have to have an understanding of the Non-legal. Law stands on the understanding of opposites. But to reach its actual meaning we need to find an origin. To define any discipline of knowledge, what needs to be understood first is its origin. Example- Psychology emerged when people started exploring human behavior and hence, it is defined as a science of human behavior.


But with Law, we do not known of the genesis. Its necessity to curb chaos is pretty much evident but where did we derive that distinction of what is chaos and what is not? Who decided what Law will be? Who is the judge? We only know it as an unlimited undefinable unexplainable necessity and that is DIFFERANCE. We never arrive at a meaning or give a meaning but all we can do is provide the setting to create one by using opposites. The true meaning is deferred/postponed and its superficial meaning keeps on changing with writing and speech, reference and context.


What Law is for a common man and for the creators and gatekeepers is quite different. The unsophisticated understanding of Law is that it is universal and accessible to all. However, the elite sophisticated understanding of Law makes it clear that on some it is applicable differently or not at ll. The rustic countrymen thinks he can access Law when he demands as it is 'universal', however, the gatekeeper is governed by a Law that empowers him to stop him. The Law is divided on the basis of the domain it governs. However, all of them are governed by one supreme Law that created a boundary of differentiation between Legal and Non-legal. This Law is nevertheless untraceable. At best it can be concretized but not yet be traced. You have agents of enforcement of this difference, but nobody knows what is exactly that these protectors are protecting. Since Law is abstract, of no origin, a product of human consensus then why does it need protection like a physical entity.


We have a very narrow understanding of Law. What we know is the right and wrong differentiation as adjudged by a handful of individuals. What was the origin and rationale of differentiation is rather unknown. Even the criteria by which we differentiated the the creator and the subjects of Law is unknown. Law creates a hierarchy, but even those at the top of this hierarchy are unaware of the genesis- Why do they decide what they decide? All of it lies beyond understanding of that distinction. They are the supposed determiners of what is Law and the distinction of Legal and Non-legal spaces, but they are unawa.re of this ridiculously invisible Law that decides this distinction and who can be the judge of such Law and by what Laws can it be judged. A confrontation with Law is promised but always deferred/ postponed. Who, why and how are always left untouched and unanswered.



Notes

  1. Kafkaesque- This style of writing is the birthchild of Kafka's thinking. It entails description of a pure event, an event which has no past or a future but exists individually. It is untouched by history and details.

 
 
 

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