THEORETICAL PRELIMINARIES

The genre of the law is itself subject to what Derrida has termed the law of genre, the principle that the “mark of belonging does not belong” to the corpus so demarcated. This mark of belonging constitutes a point of intrinsic otherness, a double inscription, which “gathers up the corpus and, in the same instant, in the same blink of an eye, keeps it from closing, from identifying itself with itself.” The concept of justice can be said to represent the mark of belonging or propriety of the law; to be just is the imperative whose perceived fulfillment translates tyrannical force into legitimate authority. Any system of rule entails, at least implicitly, a canon of justice, some principle of proportional treatment, power, and opportunity among diverse groups, rival claims, and competing perspectives in accordance with relatively fixed criteria for defining and assessing those groups, claims, and perspectives. But at the same time, justice can never simply belong to or be absorbed by that system, for reasons that are themselves strictly de jure. The law may indeed wish to enjoy a purely formal, hence integrated existence, as Stanley Fish has proposed, to be a self-monitoring, self-transforming, self-regulating system or autopoesis. But it cannot, either in principle or in fact, so long as it also aspires to the condition of justice. The law of equity is the always imperfect equity of the law.