Time, Deconstruction, and the Challenge to Legal Positivism: The Call for Judicial Responsibility

Abstract

The central purpose of this essay is to show why the deconstruction of the traditional conception of time, a conception which privileges the present, permits an effective challenge to Niklas Luhmann's systems theory. As we will see, this deconstruction of the privileging of the present helps give us a correct understanding of the relationship between law, justice, and the phenomenology of judging. The traditional conception of time defines the past and the future as modifications or horizons of the "now." By time, I am not evoking chronology, but the privileging of the present as it is understood to be necessary to the establishment of a legal system. Without this present there would be no legal system that could be grasped as simply there for its participants, whether they be lawyers or judges. We find the deconstruction of the traditional conception of time worked through in Jacques Derrida's discussions of différance. I will specifically focus on how the diachronic view of time implicit in the explanations of différance undermines the very possibility of a positivist conception of law as Luhmann conceives of it.