Is Trump attempting a “deconstruction” of the law? The likely answer is: Yes

In his excellent, well-argued and panoptic book, The Seduction of Unreason:  The Intellectual Romance with Fascism from Nietzsche to Postmodernism (2004), historian Richard Wolin makes the case that recent intellectual figures on the French left – notably Derrida and Foucault – inherited an antihumanism that actually derived from the German right of the 1920’s, in particular Heidegger. Wolin calls the problem: “left Heideggerianism”.[1] That the unrepentant Heidegger has been incriminated as author of the notorious Black Notebooks - and, thus, thoroughly discredited as Nazi philosopher king - is the subject of Wolin’s latest work.[2]  It is also worth pointing out that French postmodernists shared in the same stream of Counter-Enlightenment thinking as can be found among the minds of Catholic reactionaries from the era of the French Revolution: de Maistre, the Royalist, and de Bonald, the traditionalist.

The phenomenal reception of Jacques Derrida’s “deconstructionism” by those in North American academe (though, not nearly as much in his native France) is of special interest here.  This may have been due to the fact that Derrida offered “Marx without Marxism” for the theoretically deprived.[3]  But did he really offer a theory of criticism informed by reason, or was it something else? If we look to Derrida’s 1989 essay: “Force of Law: The ‘Mystical Foundations of Authority’”, he strips Law of all presumption, arguing, in effect, that it is based on a “mystique”, thereby following from Montaigne, a cultural relativist, and then Pascal, who is steeped in the poetic sensibilities.[4]   In effect, Derrida questions Reason as well as the Enlightenment and, by implication, formal procedures because, in his view, “the law is deconstructible”.

We can also see this in Donald Trump’s behaviour and in his all-out attacks on the law with its representatives each time he has been indicted.  Special Prosecutors, District Attorneys, Judges, Juries, the Justice Department, other Presidents – you name it: everything but the incriminating evidence itself is subject to the sorcerer’s venom.  So, in the name of “deconstruction”, Trump is borrowing an approach from the Left, which, as Wolin demonstrates, was never far removed from the Right.  And it is not merely the law that is subject to such deconstructionist disparaging, but the state of disunion itself, which Trump aims to further.  Consider Derrida’s own words, below, quoted here at length for context, with added emphases:

Since the origin of authority, the foundation or ground, the position of law can’t by definition rest on anything but themselves, they are a violence without ground.  Which is not to say that they are in themselves unjust, in the sense of “illegal”.  They are neither legal nor illegal in their founding moment.  They exceed the opposition between founded and unfounded, or between any foundationalism or anti-foundationalism.  Even if the success of performatives that found law or right (for example, and this is more than an example, of a state as a guarantor of right) presupposes earlier conditions and conventions (for example in the national or international arena), the same “mystical” limit will appear at the supposed origin of said conditions, rules or conventions, and at the origin of their dominant interpretation.

The structure I am describing here is a structure in which law (droit) is essentially deconstructible, whether because it is founded, constructed on interpretable and transformable textual strata (and that is the history of law [droit], its possible and necessary transformation, sometimes its amelioration), or because its ultimate foundation is by definition unfounded.  The fact that law is deconstructible is not bad news.  We may even see in this a stroke of luck for politics, for all historical progress.  But the paradox that I’d like to submit for discussion is the following: it is this deconstructible structure of law (droit), or if you prefer of justice as droit, that also insures the possibility of deconstruction.  Justice in itself, if such a thing exists, outside or beyond law, in not deconstructible.  No more than deconstruction itself, if such a thing exists.  Deconstruction is justice.[5]

…. The deconstruction of all presumption of a determinant certitude of a present justice itself operates on the basis of an infinite “idea of justice”, infinite because it is irreducible, irreducible because owed to the other, owed to the other, before any contract, because it has come, the other’s coming as the singularity that is always other.  This “idea of justice” seems to be irreducible in its affirmative character, in its demand of gift without exchange, without circulation, without recognition or gratitude, without economic circularity, without calculation and without rules, without reason and without rationality.  And so we can recognize in it, indeed accuse, identify a madness.  And perhaps another sort of mystique.  And deconstruction is mad about this desire for justice.  This kind of justice, which isn’t law, is the very movement of deconstruction at work in law and the history of law, in political history and history itself, before it even presents itself as the discourse that the academy or modern culture labels “deconstructionism.”[6]

---

[1] Richard Wolin, The Seduction of Unreason: The Intellectual Romance with Fascism from Nietzsche to Postmodernism, 2^nd ed. (Princeton: Princeton University Press, 2019), p. 247.

[2] Richard Wolin, Heidegger in Ruins: Between Philosophy and Ideology (New Haven: Yale University Press, 2022).

[3] Wolin, Seduction of Unreason, p. 224.

[4] Jacques Derrida, “Force of Law: ‘The Mystical Foundations of Authority’” in Deconstruction and the Possibility of Justice, ed. Drucilla Cornell, et al. (New York: Routledge, 1992), p. 14. Derrida’s Essay was a keynote address delivered in October 1989.

[5] Ibid., pp. 14,15.  Emphasis added.

[6] Ibid, Emphasis added.