Academic journal article
By Lloyd, Chris
The Australian Feminist Law Journal , Vol. 37
Abstract. Acknowledging Jacques Derrida's insistent claim that deconstruction 'happens' as a metaphysical occurrence, this article seeks to examine deconstruction's happening to law. Through an examination of the English criminal law case R. v R  1 A. C. 599 the article seeks to investigate deconstruction's happenings with regards to the origins, fictions, exceptions, inventions and potentialities found within the case. Tracing Matthew Hale's performative utterance regarding marital immunity from rape through common law history the article questions the significance of deconstruction's workings in the case. Inquiring further into the case's disclosure of fictional origins, instances of exceptional affirmation and moments of emancipatory feminist potential, the article then asks if the case is illustrative of the radical potential inherent in deconstruction's metaphysics for creating 'true' invention in law.
The late critical theorist Jacques Derrida opened his 1967 monograph, Of Grammatology, with an assertion on the concept of writing which would reverberate throughout his oeuvre for nearly 40 years. Due to Derrida's thought being crucial to the argument made with regards to law in this paper, his assertion recalls repeating:
... one says "language" for action, movement, thought, reflection, consciousness, unconsciousness, experience, affectivity, etc. Now we tend to say "writing" for all that and more: to designate not only the physical gestures of literal pictographic or ideographic inscription, but also that totality of what makes it possible ... And thus we say "writing" for all that gives rise to an inscription in general, whether it is literal or not and even if what it distributes in space is alien to the order of the voice: cinematography, choreography, of course, but also pictorial, musical, sculptural "writing."1
This crucial passage posits Derrida's account of writing. Writing, so conceived, produces all inscriptions; from those fundamental to the 'living cell,' to those found in the 'theory of cybernetics.'2 Inscriptions are then vitally important for Derrida because they allow for the bridging of 'spacing [espacement or 'the becoming-space of time or the becoming-time of space (temporisation). ,'3 Hence inscriptions, held within writing, allow for the instances of 'Now A? 'Now W and 'Now C to be bridged, in turn allowing for the production of material existence in time.4 Consequently, phenomena manifests through inscriptions, within what is known as language, 'comprehended^ by writing.5 History's entire materiality is accordingly enveloped by Derrida's account of writing. In short 'history as writing.'6 This theoretical grounding led Derrida to claim that deconstruction is merely 'at bottom what happens or comes to pass [ce qui arrive].'7 It is thus 'neither a theory nor a philosophy ... neither a school nor a method,' but rather 'what is happening today in what they call politics, diplomacy, economic, historical reality, and so on and so forth.'8 Deconstruction's mechanisms merely occur and so provide for, but also limit, all phenomena: 'these limits came into being at the same time as the possibility of what they limited, they opened what they finished and we have already named them: discreteness, differance, spacing.'9 Stated concisely, when an inscription bridges the spacing of time it 'succeeds only in/ by being effaced. It happens and comes about only by effacing itself.'10 Deconstruction illustrates that this 'erasure belong[ing] to its structure' u occurs to all inscriptions and thus to all matter. Deconstruction thus happens via spacing; 'the first word of any deconstruction.'12 This meta-truth conditions all metaphysical social phenomena, including the phenomenon in focus within this paper: law. Of concern in this paper, then, is deconstruction's happening to law. As is perhaps well known to accustomed readers, 'Reconstruction is the law'13 but also '\d\econstruction is justice? …