On Deconstruction and Closed Courts
Force of Law: The “Mystical Foundation of Authority” is one of Jacques Derrida’s most widely read and influential texts. It is a text in which Derrida sought to “foreground the theme of justice” (Derrida,1992: 7). He questions whether justice “exists...outside or beyond law” (1992: 14). By way of preliminary conclusion, he states: if “such a thing exists… deconstruction is justice” (Derrida, 1992: 14-15).
In English civil and criminal law, increasing recourse is being made to closed court hearings at which cases are determined on the basis of evidence that has not been subjected to the normal processes of scrutiny.
We cannot use Force of Law to argue that such closed court hearings pose a problem of justice because of any particular decision reached, for that would be to “speak directly about justice” (Derrida, 1992: 10). Rather, closed court hearings are troubling because they attempt to conceal the possibility of a justice which exists outside or beyond them.
Closed court hearings form an integral element of what Nisha Kapoor recently alluded to as “secret justice” (2018: 72-80). Characteristic of such ‘justice’ systems is an absence of “... a paper trail in the form of judicial documentation...of state arguments and the ultimate rationalities of judicial decisions” (Kapoor, 2018: 19).
The absent history of a legal decision attempts to give the lie to Derrida’s assertion that the very structure of law is deconstructible. In closed hearings, the law, as represented in the judicial decision, cannot as readily be the object upon which deconstruction is enacted. It cannot be easily subjected to deconstructive methods, which involve “destabilizing” and “complicating” (Derrida: 1992: 8).
The current stage of the undercover policing Inquiry, in which anonymity applications of former Special Demonstration Squad (SDS) officers are heard partly in closed sessions, is arguably the least malign manifestation of the secret justice about which Kapoor writes so compellingly. However, the “…fine-tuned operational capacity for the use of closed courts and secret evidence...” Kapoor, 2018: 78) has now been exported from its origins at the Special Immigration Appeals Commission (SIAC) to a public inquiry process. One consequence of the appearance of ‘secret justice’ in the public realm is that the fact that legal processes exist which enable the making of decisions on the basis of thin evidentiary justification has attracted rather more attention than has been the case when those very same legal processes sanctioned the deportations, extraditions and physical deprivations of those whose citizenship rights are always contingent (Kapoor, 2018).
Some non-state core participants in the undercover policing inquiry have decided to take no further part in the anonymity applications process. They are so determined because the Inquiry Chair, relying on powers contained in the Inquiries Act 2005, has repeatedly withheld from public scrutiny the full judicial paper trail pertaining to decisions on anonymity applications. Seemingly, the breaking point for such participants was the now infamous “brick wall of silence” which the Inquiry Chair erected around two former SDS officers. Its invocation sought to repel “deconstructive interrogation” (Derrida: 1992: 8), instead the truth about the nature of law was revealed in a way that only “cases framed within a national security context” could (Kapoor, 2018: 76). There can be no better symbol of a law which is the “violence without ground” (Derrida, 1992: 14) than that contained in the idea of the legally constructed brick wall.
If justice is indeed no more than deconstruction, the challenges directed at the element of the inquiry dealing with anonymity applications must not abate. In its ordinary operation, law can be interrogated because it is “constructed on interpretable and transformable textual strata...” (Derrida:1992: 14) and, when, as in the instance of the inquiry, law appears in an extraordinary guise, it is still deconstructible because “its ultimate foundation is by definition unfounded” (Derrida, 1992: 14).
Derrida, Jacques, “Force of Law: The Mystical Foundation of Authority” in Cornell, D, Rosenfeld, M and Carlson, D (eds.), Deconstruction and the Possibility of Justice. London and New York: Routledge, 1992.
Kapoor, Nisha, Deport, Deprive, Extradite: 21st Century State Extremism. London and New York: Verso Books, 2018.