The autobiographical constitution

ABSTRACT

The idea that the modern constitution can be understood as the autobiography of a people is becoming a frequently invoked metaphor. Autobiography is commonly understood as a narrative of an individual of their own lives, including their origins, the challenges they experienced, significant events that influenced their identity, as well as their values and dreams. A constitution, somewhat similarly, often in its preamble, refers to the history and challenges of a nation, as well as its values and aspirations. This essay looks at what the implications would be of such a reading of the modern constitution, specifically when taking account of Derrida’s analysis of autobiography, inter alia through his reading of Nietzsche. What would, in other words, be the consequences for the modern constitution if one takes seriously Nietzsche’s notions of the eternal return and the will to power, as well as his challenge to the traditional opposition between life and death, and to the notion of self-identity? The essay concludes that those who authoritatively interpret the modern constitution must have an ear for life and death, that is, interpretation should be understood as not only involving a return of the economy of the same, but also of the excess of the an-economic, the wholly other, death. This opening poses both a threat to the (law of the) self and a chance for justice.

KEYWORDS:

• Derrida
• Nietzsche
• Heidegger
• Freud
• autobiography
• identity
• life
• death drive
• eternal return
• justice

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 ‘Autobiography as De-Facement’ (1979) 94(5) MLN 919 at 922.

2 Carl Schmitt, Constitutional Theory (Jeffrey Seitzer tr, Duke University Press 2008) 75–76.

3 See Tom Ginsburg, Nick Foti and Daniel Rockmore, ‘We the Peoples: The Global Origins of Constitutional Preambles’ (2014) 46(2) George Washington International Law Review 305 at 306, 316; and Adeno Addis, ‘Constitutional Preambles as Narratives of Peoplehood’ (2018) 12(2) ICL Journal 125. In both these articles, preambles of constitutions are compared to autobiographies.

4 S v Makwanyane and Another (1995 (3) SA 391 (CC) par 262; see also S v Acheson 1991 (2) SA 805 (Nm) at 813B-C where Mahomed AJ makes a similar claim about constitutions in general, adding that ‘[i]t is a “mirror reflecting the national soul”’ and that ‘[t]he spirit and the tenor of the Constitution must therefore preside over and permeate the processes of judicial interpretation and judicial discretion’.

5 Helga Schwalm, ‘Autobiography’ in Peter Hühn and others (eds), The Living Handbook of Narratology (Hamburg University 2014) https://www-archiv.fdm.uni-hamburg.de/lhn/node/129.html accessed 29 September 2023.

6 See Helga Schwalm ‘Autobiography’ in Martina Wagner-Egelhaaf (ed), Handbook of Autobiography/Autofiction vol I (De Gruyter 2018) 503–04.

7 ibid 503.

8 Space unfortunately does not allow for an analysis here of theoretical approaches that focus on elements of importance for autobiography, such as those with a focus on constitutional identity, e.g. Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Routledge 2010); Monika Polzin, ‘Constitutional Identity as a Constructed Reality and a Restless Soul’ (2017) 18(7) German Law Journal 1595; or on memory, e.g. Johan Snyman, ‘Interpretation and the Politics of Memory’ in Bradfield and Van der Merwe (eds), ‘Meaning’ in Legal Interpretation (Juta 1998) 312; Lourens du Plessis, ‘Interpretation’ in Stu Woolman and Michael Bishop (eds), Constitutional Law of South Africa (2nd edn, Juta 2013) chap 32.

9 See in the latter respect Schwalm ‘Autobiography’ (n 6) 503, 504; and Terry Pitts, ‘The “Impersonal Autobiography” of Annie Ernaux’ Vertigo (February 24, 2020) https://sebald.wordpress.com/2020/02/24/the-impersonal-autobiography-of-annie-ernaux/ accessed 29 September 2023, noting that ‘The Years begins and ends with a reminder of mortality, which is always the ultimate stimulus for every act of autobiography’.

10 See e.g. Charles Berryman, ‘Critical Mirrors: Theories of Autobiography’ (March 1999) 32(1) Mosaic: An Interdisciplinary Critical Journal 71 at 74–75; Anna Thiemann, ‘Postmodernity’ in Handbook (n 6) 778 at 784.

11 Jacques Derrida, Life Death (Pascale-Anne Brault and Michael Naas tr, The University of Chicago Press 2020).

12 Jacques Derrida, ‘Admiration of Nelson Mandela, or The Laws of Reflection’ (2014) 26(1) Law & Literature 9 at 14.

13 Herman Finer, Theory and Practice of Modern Government (Asia Publishing House 1950) 12.

14 ibid 116.

15 ibid.

16 ibid 117.

17 ibid.

18 Ivo Duchacek, ‘National Constitutions: a functional approach’ (1968) 1(1) Comparative Politics 91.

19 ibid 93.

20 ibid.

21 ibid 94.

22 András Sajó, Limiting Government: An Introduction to Constitutionalism (Central European University Press 1999) 2.

23 See also András Sajó and Renáta Uitz, The Constitution of Freedom: An Introduction to Legal Constitutionalism (Oxford University Press 2017) 18.

24 Albie Sachs, Protecting Human Rights in a New South Africa (OUP 1990) vi.

25 Albie Sachs, We, the People: Insights of an Activist Judge (Wits University Press 2016) 13.

26 Writing Autobiographies of Nations: A Comparative Analysis of Constitutional Reform Processes (NIMD Knowledge Centre 2009).

27 ibid 7. Jan-Werner Müller, Constitutional Patriotism (Princeton University Press 2007) 1, likewise points to the ‘interest-based bargains’ in constitutional settlements and quotes Finer as quoted by Sajó (n 22) somewhat selectively, but nonetheless highly instructively, as saying that constitutions ‘are the “autobiography of power”’.

28 ibid 5.

29 ibid 84.

30 (n 4).

31 Muna Ndulo, ‘Constitutions and Constitutional Reforms in African Politics’ in Oxford Research Encyclopedia of Politics (Oxford University Press 2019) https://doi.org/10.1093/acrefore/9780190228637.013.1324 accessed 29 September 2023.

32 Adeno Addis, ‘Constitutional Preambles as Narratives of Peoplehood’ (2018) 12(2) ICL Journal 125 at 139–40. Addis (at 151 n 111) refers in this regard to Benedict Anderson, Imagined Communities: Reflection on the Origin and Spread of Nationalism revised edition (Verso 1991).

33 Adeno Addis, ‘Constitutions as Autobiographies of Peoples (Nations)’ in Future of Comparative Study in Law: The 60th Anniversary of the Institute of Comparative Law in Japan, Chuo University (Chuo University Press 2011) 1 at 14–16.

34 ibid 176.

35 ibid 142.

36 ibid 177.

37 Addis (n 33) 18.

38 ibid 19–22.

39 ibid 22.

40 See François Jacob, The Logic of Life: A History of Heredity (Pantheon Books 1973). The living is in other words programmed, or genetically inscribed, with greater or lesser degrees of flexibility, and thus different ranges of response, depending on the complexity of the specific organism, specifically the nervous system and brain. The living, one can also say, is a machine or text, the structure of which determines its behaviour; see Francesco Vitale, Biodeconstruction: Jacques Derrida and the Life Sciences (Mauro Senatore tr, SUNY Press 2018) 18–27.

41 Derrida, Life Death (n 11) 80.

42 This is inter alia because behind Jacob’s notion of the living as text lies a view of language as transparent medium for conveying a (genetic) message. Derrida (ibid 84–6) further points out that Jacob remains caught within Hegel’s metaphysics, inter alia in his description of the living (living systems) as defined by self-reproduction, thus by seeking an ‘essence’ of the living – as compared to the non-living (inanimate systems), and by holding on to other rigid oppositions, inter alia between inside/outside, necessary/contingent, organism/environment, non-sexuality/sexuality, life/non-life, as well as between genetic and mental memory. In relation to sexuality and death, it is interesting to note that Jacob regards these as later, accidental developments, and thus not as part of the essence of life. For Jacob, life is in other words, in its essence, a closed system, involving autonomous self-reproduction, though he appears to contradict himself in this respect; see Derrida ibid 109–10.

43 ibid 27–8. See also Dawne McCance, The Reproduction of Life Death: Derrida's La Vie La Mort (Fordham University Press 2019) 53.

44 Friedrich Nietzsche, Ecce Homo: How One becomes what one is (first published 1908, Penguin Books 2004). In his ‘Introduction’, Michael Tanner describes this as ‘the most bizarre example’ of the genre of autobiography ‘ever penned’ (vii).

45 Derrida, Life Death (n 11) 114.

46 ibid 81.

47 ibid 77–8.

48 Schmitt (n 2) 75–6.

49 See Jacques Derrida, Points … Interviews, 1974–1994 (Stanford University Press 1995) 347, where he notes that the self does not pre-exist the written text, but only comes into being through it: ‘the self does not exist, it is not present to itself before that which engages it in this way and which is not it. There is not a constituted subject that engages itself at a given moment in writing for some reason or another. It is given by writing, by the other: … born by being given, delivered, offered, and betrayed all at once’. We see this also in Jacques Derrida ‘Declarations of Independence’ in Derrida, Negotiations: Interventions and Interviews, 1971–2001 (Stanford University Press 2002) 46 where he shows that the people only come into existence through the signing of the Declaration, even though the Declaration speaks of these people as existing beforehand as an ontological presence. See also Addis (n 32) 176.

50 Derrida, Life Death (n 11) 28.

51 ibid.

52 ibid 62.

53 T.H. Brobjer, The Close Relationship between Nietzsche’s Two Most Important Books (Palgrave MacMillan 2023) 133 reads this demand as referring to the re-evaluation of values, or possibly, the thought of the eternal return; see also notes to Ecce Homo (n 44) 105.

54 Nietzsche, Ecce Homo (n 44) 3.

55 Martin Heidegger, Nietzsche Vols I-IV (HarperSanFrancisco, 1991).

56 Derrida, Life Death (n 11) 161–62.

57 ibid 163.

58 Heidegger (n 55) I, 10.

59 Heidegger (n 55) IV, 237. According to Heidegger (IV, 238), ‘man [here] secures himself as the being who is in accord with beings as such, insofar as he wills himself as the I-and-we subject, represents himself to himself, and so presents himself to himself’.

60 Derrida, Life Death (n 11) 213–14.

61 Heidegger (n 55) I, 5.

62 ibid III, 3.

63 Derrida, Life Death (n 11) 167. Derrida (30–31), by contrast, points to Nietzsche’s remark in section 3 of the ‘Foreword’ about his own wandering into forbidden territory which has revealed to him the origin of moralizing and idealising, the hidden history of philosophers, the psychology of their great names. At stake here seems to be not only a questioning of identity, but also a suggestion that the life and the work of philosophers and of texts in general should be read in a different way (31).

64 ibid 198–99.

65 ibid 200.

66 ibid 174.

67 ibid.

68 Jacques Derrida, The Ear of the Other: Otobiography, Transference, Translation (Peggy Kamuf tr, University of Nebraska Press 1985) 50.

69 ibid.

70 ibid 8.

71 For McCance (n 43) 62–63, this notion of the contract with the self, amounts to a rejection of the idea of a self that lives in the present, as well as of the notion of the reproduction of sameness.

72 See Addis (n 32) 142.

73 Derrida, Ear (n 68) 50, 51.

74 ibid 50–51.

75 Derrida, Negotiations (n 49) 50; ‘Admiration’ (n 12) 12–13.

76 Derrida, Ear (n 68) 9.

77 ibid 13.

78 See Jacques Derrida, The Gift of Death 2nd edition, and Literature in Secret (University of Chicago Press 2008) 3–35.

79 Jacques Derrida, Of Grammatology (John Hopkins University Press, 1976) 9–11.

80 Derrida, Ear (n 68) 16, 35. Robert Smith, Derrida and Autobiography (Cambridge University Press 1995) 80 points out that at stake here is a figure of temporal excess, or what one can also refer to as a giving of time; see further Jacques Derrida, Given Time: I. Counterfeit Money (University of Chicago Press 1992) 20–22.

81 Derrida, Ear (n 68) 45. Jane Marie Todd, ‘Review: L’Oreille de l’Autre: Otobiographies, Transferts, Traductions. Textes et Debats avec Jacques Derrida by Claude Lévesque and Christie V. McDonald’ (1985) 37(4) Comparative Literature 361 at 362 points out that Derrida ‘reads Nietzsche's account of his genealogy as an irreducible duality between the already-dead and the forever-living, that is, between the loss of the self through writing and the infinite capacity for return that that writing allows. When Nietzsche takes on the task of telling his life to himself, he seems to be contracting only with himself, yet he implicates “on the force of a signature” … future readers and future generations who alone can guarantee that his text returns to his name.’

82 Derrida, Life Death (n 11) 48–49, 54.

83 ibid 35.

84 ibid 36.

85 Nietzsche, Ecce Homo (n 44) 8.

86 ibid 9–10.

87 ibid 10.

88 ibid 106n.

89 ibid 107n.

90 Derrida, Life Death (n 11) 38. Derrida picks up again the notion of the autobiographical as auto-thanato-graphical in The Animal That Therefore I Am (Fordham University Press, 2008) 47 (the Conference title was ‘the autobiographical animal’) where it is linked to the notion of autoimmunity. Derrida here also invokes the phrase ‘Ecce animot’, thereby seemingly alluding to Nietzsche’s text.

91 Derrida, Life Death (n 11) 45.

92 ibid. The ‘machine’ at stake here, Derrida points out, is what makes possible in Nietzsche’s text both progressive and reactive interpretations.

93 The relation between life and death can also be explored through an analysis of the proper name, which Derrida briefly undertakes in Life Death. The proper name is traditionally understood as identifying a unique referent, an actual self-identical person present outside of language. The proper name is however necessarily inscribed within a system of classification and thus of difference. It is a mark like any other. The proper name will furthermore always survive the person it refers to, and can thus be said to announce that person’s death, functioning like a death sentence (Simon Morgan Wortham, The Derrida Dictionary (Continuum 2006) 116–17; Smith (n 80) 72–3). Whereas it gives existence, it withdraws that existence at the same time; see Geoffrey Bennington and Jacques Derrida Jacques Derrida (University of Chicago Press 1993) 104–6. At stake here is a certain fort:da movement, as Jacques Derrida, The Post Card: From Socrates to Freud and Beyond (Alan Bass tr, The University of Chicago Press 1987) 360 puts it: ‘The proper name does not come to erase itself, it comes by erasing itself, to erase itself, it comes only in its erasure, or, according to another syntax, it amounts to, comes back to [revient à] erasing itself. It arrives only to erase itself. In its very inscription, fort:da.’ The proper name is thus a priori a dead person’s name, a name of death; Derrida, Ear (n 68) 7; Life Death (n 11) 28.

94 Derrida, Life Death (n 11) 198. Derrida contests Heidegger’s interpretation of Nietzsche as a thinker of beings ‘as a whole’ or as a ‘totality’, inter alia because of the relation Nietzsche posits between life, truth, error and beings; see ibid 210–13.

95 Friedrich Nietzsche, The Gay Science (first published 1882, Vintage Books 1974) sec 109.

96 Derrida, Life Death (n 11) 3, 180–81.

97 ibid 62.

98 ibid. See also Derrida, Negotiations (n 49) 226: “In a certain sense, by coming to the aid of strength, Nietzsche is coming to the aid of weakness, of an essential weakness. It is in this essential weakness that one can locate the place of the “arche-ethics,” of the “law”’.

99 Jacques Derrida, The Death Penalty I (University of Chicago Press 2014) 142. Nietzsche is of course opposed to such degeneration, and calls for its destruction (the destruction of what is already dead) for the sake of rebirth; see Derrida, Life Death (n 11) 43. In The Genealogy of Morals, this degeneration lies in the inversion of values – that which is hostile to life becomes the strongest value and thereby threatens life. See further Alan Bass, Interpretation and Difference: The Strangeness of Care (Stanford University Press 2006) 2 who points out that for Nietzsche morality and ideals are ‘defensive distortions of the drives’.

100 Friedrich Nietzsche, The Will to Power (first published 1901, Walter Kaufman and R.J. Hollingdale tr, Vintage Books 1968) frag 685; Derrida, Life Death (n 11) 62.

101 Nietzsche, Will to Power ibid frag 685; Derrida, Life Death (n 11) 62.

102 Derrida ibid 62–63.

103 ibid 64. To be noted here is that at the age that Nietzsche’s father died, Nietzsche likewise lost his sight.

104 ibid.

105 Sigmund Freud, The Standard Edition of the Complete Works of Sigmund Freud XVIII (Vintage 2001) 1–64. As Bass (n 99) 113 points out, Derrida in his reading of Freud, rethinks the unconscious as living, differentiating machine. As has become apparent, this machine is always at work in the psyche, in life, as well as in that which life produces.

106 Freud specifically mentions in quotation marks the ‘perpetual recurrence of the same thing [ewige Wiederkehr des Gleichen]’ in Beyond (at 22), without specifically mentioning Nietzsche at this point when he (Freud) speaks of the demonic repetition compulsion; Derrida (n 11) 224–25.

107 As Derrida (ibid 220–22, 224) notes, Freud seeks to deny any debt to Nietzsche (or Schopenhauer), a classical example of denegation (Verleugnung) i.e. denying an uncomfortable fact, the truth of which is overwhelming, as a defence mechanism.

108 Derrida, Life Death (n 11) 227, 257.

109 ibid 242–43.

110 ibid 268.

111 See Jacques Derrida, ‘Coming into One’s Own’ in Geoffrey H Hartman (ed), Psychoanalysis and the Question of the Text (James Hulbert tr, The John Hopkins University Press 1978) 114 at 131 where he equates the pleasure principle with mastery, life.

112 Derrida, Life Death (n 11) 291; Post Card (n 93) 341.

113 Derrida, Post Card (n 93) 341–42.

114 Derrida, Life Death (n 11) 291. This is pleasure with a capital ‘P’, which Derrida analyses in ‘Me-Psychoanalysis: An Introduction to the Translation of “The Shell and the Kernel” by Nicolas Abraham’ (Spring 1979) 9(1) Diacritics 3. As Ann Wordsworth, ‘Household Words: Alterity, the Unconscious and the Text’ (July 1982) 5(2) Oxford Literary Review 80 at 89 points out, it is a matter here of ‘recognising “a preoriginary and presemantic force” latent in all language but here manifest in the capitalised word whose effect exceeds the orders of sense, of presence and of signification.’

115 Derrida, Life Death (n 11) 292. Vitale (n 40) 183 puts it as follows: ‘The living must protect itself from a too-rigid immunitarian system, that is from a too-strong identity, that would be closed in on itself, autistic, deaf to the signals of difference that comes from alterity, that is, from death, which it bears within itself. At the same time, the living must not completely renounce its defences in relation to the other as long as its own identity and thus its life are at stake.’ The same would apply to any system/text, including (constitutional) law.

116 Derrida, Life Death (n 11) 293–94.

117 In Jacques Derrida, ‘Force of Law’ in Derrida Acts of Religion (Routledge 2002) 228 at 264, Derrida, through a reading of Walter Benjamin, refers in this respect to law-preserving violence/force, which cannot be clearly distinguished from law-founding violence/force. The latter involves an ungraspable revolutionary instant where the law is suspended and at the same time, yet to come, already calling for its own repetition.

118 See also Maebh Long, ‘The Auto-Bio-Thanato-Heterographical’ in Claire Colebrook (ed), Jacques Derrida: Key Concepts (Routledge 2014) 10 at 13 who, in view of the structure of the proper name (n 93 above), notes that ‘[t]he presentation of the self is a writing of the death of the self, a thanatography’.

119 Jacques Derrida, The Beast & the Sovereign I (Chicago University Press 2009) 305–06.

120 Jacques Derrida, Margins of Philosophy (Alan Bass tr, The University of Chicago Press 1982) 207; see further Rodolphe Gasché, Derrida and the Philosophy of Reflection (Harvard University Press 1986) 293–95.

121 Jacques Derrida, ‘The Retrait of Metaphor’ in Julian Wolfreys (ed), The Derrida Reader: Writing Performances (University of Nebraska Press 1998) 102 at 117–18; see also Derrida, Life Death (n 11) 58–76.

122 In Acts of Religion (n 117) 254, Derrida distinguishes in this respect between law and justice, the latter which he equates with the perfect gift and absolute hospitality.

123 Jacques Derrida and Elisabeth Roudinesco, For What Tomorrow … (Stanford University Press 2004) 40.

124 See Derrida, Acts of Religion (n 117) 254; Jacques Derrida, Rogues: Two Essays on Reason (Stanford University Press 2005) 49.

125 See For What Tomorrow (n 123) where Derrida notes that to reaffirm ‘means not simply accepting this heritage but relaunching it otherwise and keeping it alive’ (at 3). An active intervention is called for ‘so that a transformation worthy of the name might take place: so that something may happen, an event, some history [de l’histoire], an unforeseeable future-to-come’ (at 4).