The Surprise of Invention: Making Fun of the Statutory

Article excerpt

For this special issue of The Australian Feminist Law Journal we asked contributors to critically address questions about law in its relation to, and as, technology through the thematic of invention. Invention, as the late French philosopher Jacques Derrida argued, is both necessary and impossible. Law is inventive or it is nothing at all! At least, that's what we said then. This slogan, which echoes Derrida: Oeconstruction is inventive or it is nothing at all'1 requires further elaboration. Now, in this introduction we consider three aspects of invention that we have found (invented and/or discovered) in the papers collected here: Plasticity, Creativity and Justice. Although Derrida linked deconstruction and invention (and as we shall see, law and technology) he also wrote that deconstruction

does not settle for methodical procedures, it opens up a passageway, it marches ahead and marks a trail; its writing is not only performative, it produces rules - other conventions - for new performativities and never installs itself in the theoretical assurance of a simple opposition between performative and constative.2

For Derrida, invention is intricately connected to singularity and alterity through technology. With modernity, he writes in 'Psyche: Inventions of the Other,' came a 'new regime of invention.'3 Originally, two competing meanings coexisted. Firstly, there was the notion of invention as discovery, of 'invention of what was already there and came into view as an existence or as meaning and truth.'4 This meaning was overtaken in the seventeenth century by 'the productive invention of a technical apparatus that was not already there as such,'5 that is, as Landgraf explains, the understanding of invention as 'a mode of producing the singular and new.'6 The modern understanding, linked to technology, conceives invention extemporaneously7 as that which offers 'a place upon finding it.'8 Prior to this reinvention of invention, 'its place was found there where it was already located?*

Invention, in this modern, technologically-minded sense, is impossible without law. According to Derrida, invention, must, by definition, Overflow, overlook, transgress, negate'10 that from which it comes. It exists, in other words, solely on the condition that it transgresses the 'status' with which it is supposed to comply.11 This status acts as law and is constituted as 'stable, established, and legitimated by a social or symbolic order in an institutionalizable code, discourse, or text.'12 That is why, for Derrida, 'every invention should make fun of the statutory;'13 it always presupposes some illegality, or 'the breaking of an implicit contract.'14 Invention without law, or what Derrida calls the 'invention of the other,'15 is an impossibility because there can be no invention 'without a prevailing statutory context.'16

The singular event of invention thereby demands simultaneous capture within a system of conventions that will ensure its position more generally in culture and society.17 Whilst the event of invention 'can take place only once,'18 invention more generally must be 'essentially repeatable, transmissible, and transposable.'19 To invent,' writes Derrida, 'is to produce iterability,' that is, repetition of the originary inventive event. It is therefore a paradox or aporia that invention is founded solely on singularity and uniqueness and yet can only be recognized as inventive by compromising its singularity in 'repetition' and 'generality.'20 Wholly dependent on generality for recognition and legitimation, invention remains forever lodged within the 'order of the calculable,' the 'order of the same,'21 which is, for Derrida, the order of law.22 To be otherwise would make its recognition as invention impossible. Invention thus needs to be with law to be inventive. Its originality can only be 'display [ed],'23 can only be brought into presence or made present, through law, through the 'values of form and composition. …