Deconstruction and the Possibility of Justice

Drucilla Cornell, Michel Rosenfeld, David Gray Carlson, Drucilla Cornell, Michel Rosenfeld, David Gray Carlson

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781134935222
• Edition: 1
• Topic: Philosophie
• Subtopic: Geschichte & Theorie der Philosophie

The purpose of this volume is to rethink the questions posed by Derrida's writings and his unique philosophical positioning, without reference to the catch phrases that have supposedly summed up deconstruction.

Part Two

Deconstruction and Legal Interpretation

3

The Idolatry of Rules: Writing Law According to Moses, With Reference to Other Jurisprudences

Arthur J. Jacobson

Moses, unlike Socrates, writes. He writes about writing. He writes about writing law. He writes about reading it, erasing it, learning and teaching it.

The first mention of writing in the Five Books occurs in the second, which English speakers call by the Greek name Exodus, but which Hebrew speakers call Names.¹ The scene is the first battle of the people of Israel after their flight from Egypt. The battle is against Amalek, in Refidim. It is the occasion in Moses* text for the introduction of Joshua, Moses’ aide-de-camp.² It is also the moment in which the people of Israel, who have been slaves in Egypt for 430 years,³ first collaborate as partners with God in fighting the enemies of Israel.⁴

Moses makes seven more references to writing in Names, all during the sojourn of the Israelites at Mr. Sinai.⁵ He also includes a reference to reading,⁶ directly after the first Sinaitic reference to writing, and one to erasure,⁷ between the fourth and fifth Sinaitic references to writing. Moses thus refers to writing eight times and the activities surrounding it twice immediately before, during, and immediately after the revelations at Mt. Sinai.⁸

The point of view of the narrator in Moses’ text is virtually unavailable to modern writers. Modern narrators speak in one of two voices. Either the author narrates, or a character narrates.⁹ The first voice presents a narrator who knows everything about the world in the novel, because the voice of the narrator has created it.¹⁰ The narrator is a god. “He” rules the novel directly, if not frankly. The second voice, by contrast, speaks only as a particular consciousness in the world created by the author. The narrator knows only certain things, because he has not created the world. The author remains all-knowing and powerful. He is a hidden god, alternately embracing and rejecting the limited point of view of the narrator. He rules the novel indirectly, behind the back of the narrator.

The narrator in Moses’ “novel” does not take the perspective of the all-knowing, powerful creator. He does not play God. He resists the temptation to be Pharaoh. Moses knows only what he sees and what God tells him, nothing more. He writes, and acknowledges that he writes. He writes about his own writing, and God’s. Nor does the narrator take the perspective of the ordinary, limited consciousness. Moses is not God, but he has spoken with God. He is the “friend” of God.¹¹ The claim of the narrator, that he has spoken with God, is a lesser claim than the claim of modern authors, one less familiar to moderns.

Moses was not unfamiliar with those who assume the godlike perspective of modern authors. He calls them “elohim” —”rulers,” “judges,” or “gods.” He also calls God “Elohim”—“Rulers”—when he wishes to refer to God as an author—the all-knowing, powerful creator of the narrative’s world. (To call God “Elohim” is to criticize the opinion that rulers are the source of their own rule. “Rulers” rules, not rulers.) He calls God “Yahweh,” when he wishes to refer to Him as a character interacting with other characters in the world created, and therefore ruled by Elohim. The name “Yahweh” in Hebrew makes no sense in ordinary terms. It is said to be made up of particles from the tenses—past, present, and future—of the verb “to be.” “Yahweh” is “That Which Is What Has Been And Will Be.”¹² Yahweh is character defining itself through past interactions and committed to change through further interactions. Yahweh is “Friend.” Where Elohim rules, Yahweh interacts. Man approaches Elohim as a child approaches a parent, a creation approaches a creator, a subject approaches a ruler. He approaches Yahweh as a collaborator, a friend.¹³

Moses, who is both narrator of the Five Books and a character in them, has relations with both Elohim and Yahweh. As narrator, Moses “takes dictation” from Elohim, the all-knowing, powerful God of the narrative. As a character, Moses is friend of Yahweh. The story of Elohim’s narrative is the drama of Moses and Yahweh. It is the conflict between Moses as narrator and Moses as character.

The drama of Moses and Yahweh, the conflict between Moses as narrator and Moses as character, may be seen as a struggle over the names of God, “Elohim” and “Yahweh.” Elohim rules over types and classes. Single characters cannot be the friend of Elohim. To be a character is to challenge the rule of types and classes. Yahweh is the name of God who befriends characters, who tolerates challenges to Elohim. Yahweh challenges his own rule, the rule of Elohim. The drama of the text is the question: Does Elohim rule or does Yahweh collaborate with characters?

The text gives the question a legal formulation: Do legal rules rule or do characters? Legal rules rule by commanding or prohibiting classes of specific acts, and by punishing disobedience with sanctions. Characters rule by ruling themselves according to ten propositions (ten d’varim, dekalogoi). Propositions rule by assent, by the aspirations of characters, not by commanding or prohibiting classes of specific acts using sanctions. To rule by propositions is to engage in ceaseless conversation with Yahweh.¹⁴ The text at once poses rules to substitute for the collaboration of characters with Yahweh, and challenges rules when characters reconstruct themselves through action according to propositions.

The text also formulates the drama as a relentless concern with graven images.¹⁵ An idol is a completed creation. Creation is complete, when Elohim rules. When Yahweh collaborates with characters, creation is ongoing. To approach God only as Elohim is to treat creation as finished. It is to consider things as products, not as constituents of further creation. It is to treat things as idols. Everything that will be has been given. It is, because it has been. Yahweh asserts that what will be, is not, because it has not been. Nothing is given. Creation is incomplete. Things are constituents of further creation, not idols. To bow to idols is to assert that what will be has been given. It is to treat God only as Elohim. It is to approach Him as a subject, rather than as a collaborator. If Elohim must rule and not characters, then rules too must be graven: Moses must reduce the rules to writing. Yet Moses warns repeatedly against graven images at crucial moments in the drama. The crisis of Mt. Sinai is a crisis of graven images. It is a crisis of writing.

The text thus poses the drama as a struggle over writing: Does Elohim write or does Moses? If only Elohim writes, then characters have no role in creation. Moses must write in order to befriend Yahweh. He must destroy and replace Elohim’s writing. But if Moses writes, then people will bow to the text as a graven image. They will want Moses to be Pharaoh. They will be without character. Yahweh/Moses must write a second time what Elohim first wrote and Moses destroyed. Moses must write as a collaborator of Yahweh, not as elohim/Pharaoh.

WRITING AND THE EPISODES AT MT. SINAI

The sojourn at Mr. Sinai covers the climactic weeks in Moses’ entire narrative of the Five Books, from the beginning of time¹⁶ to Moses’ death just before the arrival of the Israelites in Canaan. The text presents an elaborate and puzzling sequence of events during these weeks. One must know the sequence in order to appreciate the role of writing in the Sinaitic revelation. In outlining the sequence, I want to avoid two tendencies, each of which is, nevertheless, quite instructive.

The first is the effort to order and rationalize the sequence in a prosaic chronology. Rashi, the authoritative French commentator, proceeds in this manner.¹⁷ He does so, I believe, for two reasons. He wants the text not to offend strict dramatic logic. He also wants the multiple references to writing in the text—Moses’ writing, God’s writing, and Moses’ account of his own and God’s writing—to work together without conflict. Rashi thus seeks to make sense of the text in ordinary terms, a sense not directly available from the text without interpretation.

Take, as an example Rashi does not discuss for this point, Jethro’s criticism of Moses, just prior to the revelation at Mt. Sinai.¹⁸ In the two-or-so months from the departure from Egypt to the arrival in Refidim, Moses sat to judge the people without the aid of other leaders. Jethro, who was Moses’ father-in-law, arrived in Refidim with Tsipporah, Moses’ wife, and their two sons, directly after the battle with Amalek. When Jethro observed Moses judging, he sternly criticized him for undertaking too heavy a burden. Moses, he said, must appoint subordinate judges for ordinary matters. Otherwise he will wear himself out.¹⁹ Moses closes the scene by stating that “Moses sent away his father-in-law; and he went his way into his own land [Midyan].”²⁰ The very next statement in the text records the arrival of the Israelites at Mt. Sinai. Thus it would appear that Jethro left the Israelite encampment prior to the arrival at Mt. Sinai. Yet we know from later scenes that Jethro was present in the encampment after the revelation at Mt. Sinai.²¹ The text does not record his return from Midian. Was Jethro present in the camp during the sojourn at Mt. Sinai? We do not know. The mystery of the passage deepens when we consider that Jethro’s departure precedes the bulk of the revelations recorded in Names and the following books. We know that God revealed “a decree [h.ok] and a rule [mishpat]” at Marah, just after the departure from Egypt.²² But Moses did not have much revelatory law to use in Refidim.²³ Did he use the customary law the Hebrews undoubtedly possessed prior to Sinai?²⁴ Moses tells Jethro that he is using revelatory, not customary law. Why does Moses choose to discuss the burdens of judging at this moment, in Refidim? Or was the discussion after Mt. Sinai, as the Jethro story suggests? Again, we do not know.

The second tendency I want to avoid is the critical dissolution of the text into distinct traditions, separated by purpose and origin, only to be united by a hypothetical single or group compiler in later ages.²⁵ Apart from the “interpretive” grounding of this approach, lacking as it is in documentation outside the text, we must be permitted to assume that the compiler, at least, was an artful arranger. Why would the compiler leave oddities and inconsistencies in the text, such as the Jethro episode? Surely, one purpose of the compiler would be to eliminate oddities and inconsistencies. If he or they did not, we must ask what purpose the compiler had in leaving them in. All we can do, reading as we must behind the veil of ignorance, is puzzle out for ourselves the purposes, whether those of an historical Moses, or some later compiler or compilers of diverse traditions, whom we might as well give the name, Moses.

An overview of the events at Mt. Sinai encompasses eight (or possibly six) ascents Moses made to confer with God, together with two (or possibly four) episodes in which Moses conferred with God without going to the top of the mountain. In the first of the two episodes, Moses met with God on the slopes of the mountain; in the second, in the Tent of Meeting.²⁶

First meeting (first ascent): Yah weh’s first message to the people.²⁷

[Moses tells the people Yahweh’s propositions and the people answer.]²⁸

Second meeting (second ascent): Moses tells Yahweh the peop...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Introduction
• Law, Violence and Justice
• Deconstruction and Legal Interpretation
• Comparatıve Perspectives on Justice, Law and Politıcs
• Index
• Contributors