Toward cosmopolitan law.

• Author: Janda, Richard
• Position: Teaching law and philosophy - Canada

The term "transsystemic law" was coined to characterize the study of law in which the McGill Faculty of Law has been engaged ever since it combined civil law and common law education into a single curriculum. In seeking to characterize and reflect on the possible significance of the transsystemic idea, the author draws on a parallel attempt to recharacterize the curriculum and study of philosophy undertaken by Jacques Derrida.

To reinvent the legal curriculum as a study of legal pluralism using transversal categories not proper to any particular jurisdiction or legal tradition opens up the concept of law itself and beckons us to revisit the relation between law and philosophy. Derrida had already discovered that to reinvent the philosophy curriculum involved in particular the need to overcome the division between continental and analytic traditions, moving beyond the idea of philosophic systems so as to seek out a paradoxical and charged cosmopolitan standpoint. For Derrida, the prolegomenon to this task involved revisiting and reinvesting the relation between philosophy and law. To teach transsystemic, cosmopolitan law is an attempt to fashion what Kant had called "the universal law of hospitality": hospitality between law and other disciplines, hospitality among legal traditions, hospitality between guest and stranger. Hospitality is sought out and provided in the name of a certain emancipatory justice that would unconditionally provide for and forgive the debts we owe each other.

L'expression > a ete imaginee afin de caracteriser le mode d'etude du droit dans laquelle la Faculte de droit de McGill s'est lancee depuis qu'elle a combine l'enseignement du droit civil et de la common law dans un seul et meme cursus. En cherchant a definir et reflechir quant a la portee possible de l'idee transsystemique, l'auteur s'inspire de la tentative parallele de refondre le cursus et l'etude de la philosophie entreprise par Jacques Derrida.

Reiventer le cursus juridique en une etude du pluralisme juridique utilisant des categories transversales n'appartenant pas a une juridiction ou tradition juridique specifique revient a defricher le concept du droit lui-meme et nous invite a repenser la relation entre droit et philosophie. Derrida avait deja decouvert que reinventer le cursus de philosophie impliquait en particulier le besoin de surmonter la barriere entre traditions continentales et analytiques, d'aller au-dela de l'idee de systemes philosophiques afin de rechercher un point de vue cosmopolite paradoxal et tendu. Pour Derdda, au nombre des prolegomenes a cette tache figurait la necessite de revisiter et reinvestir la relation entre philosophie et droit. Enseigner le droit transsystemique et cosmopolite est une tentative de faconner ce que Kant avait appele > : hospitalite entre droit et autres disciplines, hospitalite entre traditions juridiques, hospitalite entre hote et etranger. L'hospitalite est recherchee et offerte au nom d'une certaine justice emancipatoire qui rembourserait et oublierait les dettes que nous nous devons les uns aux autres.

Introduction I. Legal Pluralism II. Transsystemism III. Cosmopolitanism IV. Instrumentalism Conclusion Introduction

A rather ill-tempered 21 October 2004 obituary in the Economist that marked the death of Jacques Derrida concluded with an observation and a remark: "In his final years he became increasingly concerned with religion, and some theologians started to show interest in his work. God help them." Something similar might have been observed about Derrida's latter-day writings on law. The philosopher might perhaps have smiled at the thought that although jurists have as much reason to be interested in his work as do theologians, they have less fight to invoke God's aid when approaching a text like Du droit a la philosophie. (1) Yet approach this text I will, because it offers a privileged position from which to consider what it means to pose law's questions afresh in a new programme of study that would emancipate law from the authority of jurisdiction; that is, to engage in transsystemic legal inquiry. More precisely, obliged as we are to identify what it is that we seek to privilege in McGill's new programme of study for law, we have the privilege of attending to how and why Derrida felt obliged to discuss the relation between law and philosophy in proposing a new programme of study for philosophy.

The title, Du droit a la philosophie, was first proposed twenty years ago when Derrida gave a seminar on the occasion of his appointment as director of the College international de philosophie. (2) The philosopher was about to be charged with a legally constituted function--and not for the first time. That investiture prompted him to reflect on how law traversed philosophical institutions and was therefore the ground of the possibility of philosophy. Derrida thus began to trace a disciplinary inversion in which philosophy, the architectonic science, found itself tributary to law, instituted as it were by that which it claimed to institute. As he pursued this reflection in subsequent years, he kept the title for his 1990 tome and both delimited and augmented it for the 1997 essay Le droit a la philosophie du point du vue cosmopolitique. (3)

There is an engaging polysemy to the words "droit a la philosophie" that cannot be captured in a single English phrase. The first sense concerns the movement "From Law to Philosophy": "Il s'agira plus precisement encore du rapport des structures juridiques qui soutiennent, implicitement ou explicitement, les institutions philosophiques (enseignement ou recherche) a la philosophie elle-meme, si quelque chose de tel existe en dehors, avant ou au-dela d'une institution." (4) Derrida is prepared to treat the relationship between juridical structures and philosophy on the jurist's terms, acknowledging that his title is also a contract--a contract between law and philosophy, and also a contract that is promised "a plus d'un paradoxe." (5)

A first paradox is already lurking in the relationship between a law that renders philosophy possible by placing it in an institutional setting and a philosophy that renders law possible by identifying its idea. Further paradoxes lurk in the other readings that can be given to the title.

A second reading given to the title concerns the need to speak "Of Law to Philosophy"--Derrida adds as an afterthought "to speak to philosophy of law." Here Derrida remains on the outskirts of what a jurist would call the philosophy of law, through which the jurist appropriates a province of philosophy. Rather, Derrida has in mind a pedagogical task aimed at having philosophers become engaged by the questions of law. He identifies "l'enorme continent de la problematique juridique," (6) a territory about which philosophers speak too little. Philosophers in the past have spoken of law and claimed it within the province of their inquiry, but this territory is one that contemporary philosophers have been reluctant to survey; they have forgotten how "immense et foisonnante" it is. (7) There are the makings of a dispute as to who will successfully claim that territory, philosophers or jurists, and thereby establish their right, their droit. Philosophers are being asked to return to a territory the grandeur of which they can perceive, better perhaps than the jurists who have occupied and administered it.

A third reading given to the title, which might occur first to the jurist, is somewhat startling: "Of the Right to Philosophy". What kind of fight is this? What does it mean to have access to philosophy guaranteed by law? For whom and against whom is it claimed? This formulation is all the more remarkable in that "right" is linked to philosophy itself, not to an individual's effort to conceive it or to express it, as in the case of freedom of conscience or expression. It suggests access to a private or public domain where philosophy is found, to places where the activity of philosophy is conducted, and to institutions and media that convey it. It also suggests that philosophy forms a conceptual unity to which one can have access. In other words, the acknowledgement of a right to philosophy entails singularity, identity and generality to philosophy, the very possibility of which raises vexed questions for philosophy itself, and leads Derrida to ask who can legitimately pretend to speak for philosophy. Yet Derrida himself did, first in 1982 when he co-chaired the mission that led to the founding of the College international de philosophie, and then in 1989, when he co-chaired the Commission de reflexion pour l'epistemologie et la philosophie, which proposed a grand reorganization of education in philosophy extending all to way to kindergarten. In those two settings, he was able to speak legitimately on behalf of philosophy because of official mandates conferred on him according to French law. If curricular reform is the foundation of a fight to philosophy, it also exemplifies the relation between law and philosophy.

The fourth, adverbial sense given to the title concerns whether it is possible to proceed "Right to Philosophy", that is, directly, without any form of detour. Derrida casts doubt on whether it is still possible--despite what some believe--to philosophize "tout droit", (8) implying therefore that it was possible, or at least believed possible, to do so in the past. (9) If philosophy is now mediated by upbringing, teaching, philosophical institutions and indeed by language, it loses its immediacy and hence any guarantee that it might have to being universal or natural. Proceeding right to philosophy would be the shortest distance between two points--from here to universality--and thus would allow philosophy to be conducted sub specie aeternitas. Yet, proceeding fight to philosophy, without curve or deflection, invokes rectitude as a governing principle for philosophy. That, too, is a form of mediation...