Speaking in 1976 at the University of Virginia in Charlottesville Derrida prefaced a lecture on Nietzsche with some remarks on The American Declaration of Independence. In this brief text — subsequently published in Negotiations (2002) as “Declarations of Independence” (hereafter “Declarations”) — Derrida assesses the status of “the people” as the sovereign guarantor of the constitution. Derrida asserts that the people is not only radically indeterminate and internally differentiated but also temporally deferred and so can never be presented as such. This clearly troubles the narrative, so beloved by constitutionalists, that state law is legitimated by the people’s authority as pouvoir constituant. But Derrida is not exclusively concerned with disavowing the putative “foundations” of the state or state institutions. His reading, by excavating the conditions of possibility on which these “foundations” rest, seeks to displace the economy which keeps them in place. Though it may seem, on first reading, a rather technical text, “Declarations” evidences a radicalism that is more clearly on show in later, overtly political, interventions like Spectres of Marx (1994), The Politics of Friendship (1997) and Rogues: Two Essays on Reason (2004). Nonetheless, grasping (at least some of) the technicality of Derrida’s analysis is crucial if we are to understand the broader significance of the elliptical suggestions in “Declarations”.
The timing of the text’s presentation is significant. Not only is 1976 the bicentenary of the American Declaration of Independence but also comes only a year before Derrida’s infamous, and extensive, rejoinder to (American analytic philosopher of language) John Searle’s criticisms of Derrida’s essay on J. L. Austin, “Signature Event Context”.1“Signature Event Context” was first presented in 1971 at a conference on the theme of “communication” and later published in Marges de la Philosophy (1972). The first English translation appeared in Glyph in 1977. In a second volume of Glyph from 1977 John R. Searle published a response to Derrida’s essay entitled “Reiterating the Differences: A Reply to Derrida”. Derrida countered Searle’s salvo with a 70 page essay: “Limited Inc a b c…”. Derrida’s two essays are collected in Limited Inc, ed. Gerald Graff (Evanston: Northwestern University Press, 1988). Searle declined to have his essay included in the collection. Without descending into the minutiae of the argument, “Signature Event Context” develops a couple of key points that will help us unpick “Declarations”.
Firstly, we should note how Derrida treats the “performative utterance.” Austin’s notion of the performative speech act aims to illustrate that language has affects beyond the dissemination of truths of falsities: language performs and produces effects. The meaningfulness of a performative, for Austin, depends on the context in which it is spoken: “I pronounce you man and wife,” spoken at the end of wedding ceremony, has meaning and affect only if certain conditions are in place. If the same words were spoken in a play or on screen the sense would be quite different. This suggests that meaning is not attached in an intractable or permanent way to a particular set of signs, marks or sounds. The effect of an Austinian performative depends on the context in which an utterance is made. In “Signature Event Context” Derrida argues that this context-dependence is a constitutive feature of all utterances. In this sense, Derrida radicalises Austin and rather than determining the strict criteria that properly contextualise a performative, Derrida asserts that all contexts are themselves contingent. There are, Derrida maintains only contexts ‘without any centre or absolute anchoring’.2Derrida, Limited Inc, 12
A second issue in “Signature Event Context” turns on the status of intention. Derrida asserts that for utterances (whether spoken or written) to be communicable they must be necessarily understandable in the absence of the speaker or author. Derrida gives the following example:
At the very moment “I” make a shopping list, I know… that it will only be a list if it implies my absence, if it already detaches itself from me in order to function beyond my “present” act and if it is utilizable at another time, in the absence of my being-present-now… in a moment, but one which is already the following moment, the absence of the now of writing.3Derrida, Limited Inc, 49.
Derrida displaces the dominance of intention in the production of meaning by suggesting that communicable utterances (whether written or spoken) have a life outside that in which they were originally circumscribed. Intention is traditionally tied to a metaphysics of presence: intention is privileged because the meaning of a statement is generally thought to be connected to the present thoughts of a speaker or author. But, as Derrida’s description of writing the shopping list illustrates, presence is always divided. The written mark, even in the very (“present”) moment in which it is written, must be able to function in the absence of the author. Intention, though relevant, cannot be the centre point around which meaning orientates, rather, meaning is produced through a context that is without centre. It is, in fact, the absence of a centre and the absence of any present ground that is the condition of possibility for any meaningful communication at all.
How, then, does Derrida bring this to bear on the question of “the people” that supposedly guarantees the legitimacy of the declaration? “Declarations” turns on two questions: ‘who signs, and with what so-called proper name, the declarative act that founds an institution?’4Derrida, “Declarations” in Negotiations: Interventions and Interviews 1971-2001, ed. Elizabeth Rottenberg (Stanford: Stanford University Press, 2002), 47. With regards to the American Declaration of Independence, on first blush, the answer might appear uncontroversial: it is signed by the representatives of the United States of America in General Congress. But these representatives sign, ‘in the name and by the authority of the good people… of these united states’.5Derrida, “Declarations,” 49.
The “good people” subsist in the signature of the representatives; it is in the name of the good people that the representatives sign. This trace, the fact that the “good people” must in some sense inhabit the signature, presents a difficulty. Does the declaration announce that “the good people” are freed from British rule and are now, by signing — or at least having others sign on their behalf — simply describing their freedom? Or is the very act of signature that which establishes their freedom? The signature is both descriptive (of an already existing state of affairs) and performative (establishing a state of affairs). The sort-after effect of the declaration lies in the instability, or undecidibility, between the performative and constative. As Derrida puts it, before the representatives sign, “the people,”
do not exist as an entity, the entity does not exist before this declaration, not as such. If it gives birth to itself, as free and independent subject, as possible signer, this can hold only in the act of the signature. The signature invents the signer.6Derrida, “Declarations,” 49.
Derrida leaves us with an aporia: the representatives sign on behalf of the people but “the people” does not exist before the signature. The representative’s can only be thought to represent something after the signature itself. Everything happens post factum. The authority of the people is conjured through a retroactive affirmation and so the people as guarantor of the constitution is caught in temporal flux. Like Derrida as he pens his shopping list, the people, at the moment they are supposedly present in the declaration, necessarily infer their radical absence; they are only able to persist as a spectral trace of a future affirmation.
The performative force of the declaration is undeniable but the subject of that declaration is radically unstable. We cannot say who or what the people is, its precise coordinates and parameters are unknowable. The signature that signs on behalf of “the good people of these united states” seeks to enclose and determine the people as “the people” and thus render this collectivity present and stable. But this is an impossibility: “the people” as a present unity is a nonsense produced by a metaphysics of presence. The people is never here or there but can only appear as traces of traces whenever it is evoked. In terms of the statement itself, Derrida’s displacement of intention and his emphasis on an open and indeterminate process of contextualisation infers that the meaning and effect of such a declaration is not closed or unified but radically and necessarily open.
Derrida’s assertion that the people is never present but always deferred might be disquieting to some. Does this not disavow the power of the constituent assembly? Does this not render radical change impossible? I think not. If the people is never present or clearly definable there is an irreducible gap between the revolutionary people as constituent power and the static assertion of “the people” as constituted power. There is no sovereign moment of closure where the people is present and delimited once and for all. This gap is determined by a temporal and spatial differentiation which at once makes the constituent and constituted “people” an impossibility. But, the impossibility of a truly present people that guarantees the constitution is also such a constitution’s condition of possibility. The pouvior constituant of the people changes form in Derrida’s hands: it is precisely because the people can never be closed, stabilised or present that the people has power.
In “Declarations” Derrida’s reorientation of the metaphysics of time confronts the temporal economy that governs political commitments that we might take for granted. If presence is always divided then there can be no end point (telos) at which constituent power becomes constituted. There is no safe place from which we can look back and assess the legitimacy of the constitutive moment. Equally, there can be no sure ground from which we can start: no political “we” that is ever present to itself, no “people” that is without differences, omissions and elisions.
In Spectres of Marx, Rogues and elsewhere, Derrida is clear that this in no way implies a quietism in the face of ethico-political exigencies. The urgency of engagement and action is clear but the terms that frame such an engagement are anything but firmly secured. What is truly radical about Derrida’s thought in “Declarations” is that it displaces the economy of presence that keeps claims to legitimacy in place. By undermining the temporality of the declaration, Derrida gestures towards a politics that no longer needs the myths of presence and unity that the declaration propagates. Derrida asks who signs, and with what so-called proper name, the declarative act? Who is the “we” that “the people” supposedly signifies? If the declaration has any use beyond its defunct invocation of a present and stable “people,” it is to hold such a people in suspense, as a question that should always be the subject of political contestation and negotiation.
Daniel Matthews is a PhD candidate at the Birkbeck Law School, University of London where he teaches contract law.