Abstract
This paper addresses the question of the constitution of ‘the people’. It argues that J.L. Austin’s concept of the ‘perlocutionary’ speech act gives us a framework for understanding the constitutive force of a specific constitutional document: the American Declaration of Independence. It does so through responding to Derrida’s analysis of the Declaration, which itself draws on Austin’s work. Derrida argues that the Declaration’s constitutive force lies in the fact that it cannot be simply understood as either ‘performative’ or ‘constative’, in Austin’s terminology. According to Derrida, ‘the people’ do not pre-exist the Declaration, but are constituted in the act of declaration itself. In response, I argue that while Derrida’s insight regarding the constitution of ‘the people’ is sound, his analysis misses two key aspects of the Declaration. These two lacunae point the way to an understanding of the constitutive force of the Declaration in terms of Austin’s ‘perlocutionary’ speech act.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
A constitution-al document, one which forms (at least part of) the foundation for a particular political society, should be distinguished from a ‘constitution’ insofar as the former does not create legal rights or duties; although, as we shall see, the Declaration was in at least one important way a legal document and purported to have legal effect.
The gold I attempt to mine in this paper bears connections to that provided by other post-Austinians who apply his speech-act theories, in particular, Quentin Skinner’s account of historical meaning, but is distinguishable from Skinner’s theory by its conceptual focus on the speaking subject as a constituted subject; that is, as a political or a legal subject. Unlike Skinner’s project, then, which provides a theory of historical utterance-meaning which proceeds methodologically by reconstructing the contextualised intentions-in-action of the speaker, what I am providing is a primarily philosophical account of political subjecthood, and only secondarily and derivatively concerned with the meaning of a text. That is, my account is inverse to Skinner’s, which focuses first on the historical meaning of a text and only derivatively on the acting subject of that text.
‘It is certain that the perlocutionary sense of “doing an action” must somehow be ruled out as irrelevant to the sense in which an utterance, if the issuing of it is “doing an action”, is a performative, at least if that is to be distinct from a constative’ (Austin 1975, p. 110).
For example, John Searle, in his magisterial work Speech Acts, mentions the perlocutionary only in passing and generally with pejorative implications. In critiquing Grice’s theory of ‘non-natural meaning’ as a full account of the meaning of utterances (Searle 1969, pp. 44–46), Searle takes the perlocutionary to function causally or ‘naturalistically’. It is thus akin to Davidson’s (1963) concept of ‘motive’ and therefore inadequate to explain ‘meaning’. Searle claims the perlocutionary therefore cannot account for the ‘institutional’ character of language-as-communication; that is, of ‘meaning’ as a realm of human action (Searle 1969, p. 71). See further Austin (1975, p. 115), Gu (1993). Similarly to Searle’s causal construal of the perlocutionary, Habermas’ account of ‘communicative action’ relegates perlocutionary speech acts to the realm of irrational and non-universalisable ‘strategic action’ (Habermas 1984, pp. 99–101; pp. 286–310). Quentin Skinner’s speech-act based ‘New History’ largely ignores the perlocutionary, again focusing solely on the illocutionary speech act; his methodological works bear only scant mention of the term, and then only to sideline it, e.g.: ‘I shall concede that a writer’s perlocutionary intentions (what he may have intended to do by writing in a certain way) do not need to be further considered. They do not seem to need any separate study, since the question of whether a given work was intended by its author, say, to induce sadness does seem to be capable of being settled (if at all) only by considering the work itself and such clues about its intended effects as may be contained within it’ (Skinner 1972, p. 403). This reduction of ‘perlocutionary intentions’ to ‘illocutionary intentions’ is evident in Skinner’s understanding of ‘to ridicule’ as an illocutionary act, rather than a perlocutionary act. ‘I ridicule you’, unless uttered in strange circumstances, is not to ridicule you; and ‘I ridicule that X’ is nonsensical (Skinner 1989, pp. 270–271; Austin 1975, pp. 103–104).
See Austin (1975, pp. 14–15) for his set of felicity criteria. I do not have space to analyse these criteria in this paper.
In principle, a similar argument could be levelled at any reduction of performative (‘external’) meaning to something like ‘propositional content’. Austin’s argument, taken at its most abstract, is that one cannot think of the meaning of any utterance (that is, any act of speaking, by someone, to someone else) as reducible to the external, outward ‘expression’ of content ‘in the mind’ of the speaker. Crary (2002, 2006) has argued convincingly—though I do not address her argument here—that Austin’s target is the idea of ‘literal meaning’, or meaning that attaches to a set of words independently of any context of utterance.
Perhaps Austin’s message is simply that we must pay more attention to what the words we use actually do; that is, to make those words more ours. This injunction, like all deceptively simple philosophical injunctions, is harder to obey than it might at first seem. One is always in danger, as Humpty Dumpty was, of falling off the wall on either side. In this respect, it is instructive that the debate about the ‘essence’ of linguistic meaning, post-Austin, has been largely between some form of Lewisian ‘conventionalism’ and some form of ‘mentalism’ or ‘intentionalism’.
At least ‘truth’ understood as a correspondence between a proposition and the world: ‘the adequation-congruence between a judicative utterance and the thing itself’ (Derrida 1988, p. 14). the legal metaphor is interesting. Derrida is connecting the normative sense of ‘to judge’ with what we may want to call a descriptive sense: ‘to judge’ the correspondence of one thing to another. His point is, presumably, that both sorts of judging (to the extent that they can be separated) rely on already-existing networks of meaning: the truth-relation does not stand outside and above (as the ‘thing-in-itself’) our (conventional) world of humanly existing things: a very Austinian thought.
For Derrida, Austin’s conception of meaning still has an implicit teleology: the goal of an utterance is to perform (felicitously) a specific speech-act. While he thinks this is a step beyond a conception of meaning which merely focuses on communication (of ‘content’, compare with, for example, Dummett (1973, p. 298): ‘the utterance of a [declarative] sentence does not need a particular context to give it a point… The utterance of a sentence serves to assert something’), Derrida’s point is that Austin still thinks that the value of an utterance is to be judged by reference to its (intended) goal.
One may recall here Austin’s insistence that there are not ‘infinite uses of language’ and his love of categorisation. For example, this pithy comment: ‘Certainly there are a great many uses of language. It’s rather a pity that people are apt to invoke a new use of language whenever they feel so inclined, to help them out of this, that, or the other well-known philosophical tangle; we need more of a framework in which to discuss these uses of language; and also I think we should not despair too easily and talk, as people are apt to do, about the infinite uses of language. Philosophers will do this when they have listed as many, let us say, as seventeen; but even if there were something like ten thousand uses of language, surely we could list them all in time’ (Austin 1979a, b, p. 234).
There is a shift here in Derrida’s reading of Austin, from the notion of a self present-to-itself to the notion of a fully specifiable meaning. Both can be seen as conceptions of the broader concept, important to Derrida, of ‘presence’. The two notions are equivalent, for Derrida’s purposes here, insofar as the self present-to-itself is only one way of getting to the more basic notion of fully specifiable meaning. This latter notion is the more appropriate one for the problem at hand here.
Whether or not Austin is committed to the notion of a self present-to-itself in addition to a notion of (contextualised) fully specifiable meaning is not a question I have room to address here; however, the best reading of Austin on this point, I think, must take into account his work on excuses, where Austin’s focus on where, despite our best ‘intentions’, words go wrong seems to indicate, to me at least, that Austin is sensitive to the problems entailed by a notion of the self present-to-itself. It is worth noting in this regard that Searle, and following him, Habermas, both, I think, hold to both notions. Searle, for instance, takes intentions to precede and cause actions; in a successful act, the content of the intention is the same as (and determines) the content of the action. The issue is complicated further by the specifics of the constitutional case. The self-constitution of the constitutional subject seems to have the consequence that a full explication of constitutional meaning is equivalent to a self wholly present-to-itself. I am thankful to an anonymous reviewer for pointing this problem out.
The Declaration’s constitutionality was recognised by the Founding Generation. James Madison strikingly described the document as ‘the fundamental Act of Union of these States’, and John Hancock called it ‘the Ground and Foundation of a Future Government’ (Mahoney 1986, p. 46). John Quincy Adams, sixth President of the United States of America, described the Declaration in his 1831 Independence Day oration as ‘the first example of a self-constituted nation proclaiming to the rest of mankind the principles upon which it was addressed’ (Adams 1831). Arendt (1963, p. 125), over a century later, wrote that the Declaration initiated the ‘process which prepared and culminated in the Constitution of the Union, the foundation of the United States’.
Modern commentators make similar claims: Mahoney (1986, p. 46) claims that ‘it is the Declaration that constitutes the American nation’; Lutz (1989) argues the Declaration, as a ‘covenant’ between the American people, created that national people; similarly, according to Balkin (1999, p. 168), ‘[t]he Declaration is our constitution… because it constitutes us, constitutes us as a people “conceived in liberty, and dedicated to a proposition”.’ Other writers stress the close connection between the political principles contained in the Declaration and those of the US Constitution (Tushnet 1996; Himmelfarb 1990).
This is not to say, of course, that the Declaration cannot be understood as performing other acts; it may have other functions. One of these other functions may have been, as Armitage (2002) argues, to act as a signal to France that the American colonies were again ‘open for business’, in order to prosecute successfully the war against Britain.
I do not consider the question of representation in this paper, although it is an essential part of Derrida’s reading of the Declaration—and, I think, central to the way in which speech act theory must be understood in connection to political or legal theory. Arendt (1963, p. 236) is on to something when she writes that ‘the whole question of representation, one of the crucial and most troublesome issues of modern politics ever since the revolutions, actually implies no less than a decision on the very dignity of the political realm itself’. See further Derrida’s (1974) comments on Rousseau.
It is interesting that Austin (1975, p. 68) recognises a similar problematic with respect to the verb ‘to hold’. He lists it, along with ‘to class’, as verbs which are ‘in a way [constative], in a way [performative]’. The ambiguity Derrida identifies is already present in Austin’s own work, even without the claim to self-evidence which reinforces it in the Declaration.
See further Honig (1991), who usefully compares Derrida’s conception of the Declaration to Arendt’s.
‘It is certain that the perlocutionary sense of 'doing an action' must somehow be ruled out as irrelevant to the sense in which an utterance, if the issuing of it is the 'doing of an action', is a performative, at least if that is to be distinct from a constative. For clearly any, or almost any, perlocutionary act is liable to be brought off, in sufficiently special circumstances, by the issuing, with or without calculation, of any utterance whatsoever, and in particular by a straightforward constative utterance (if there is such an animal)’(Austin 1975, p. 110).
Wills (1978) argues that Jefferson’s concept of ‘common sense’ is central to understanding the Declaration, and has its roots in the Scottish Enlightenment use of the term.
Becker argues that although they may have been ‘common sense’ to the Whigs in Congress, they were certainly not common sense to the average American. On Becker’s reading, the Declaration was much a plea to the American people (inviting a response) as it was a justification to the British. Note, however, that modern American republican historians, including Bailyn (1967) and Wood (1969), do argue that these Lockean ideas were more or less common among the populace, spread by pamphlets and newspapers.
Wills argues this explains the excision by Congress of Jefferson’s original inclusion, in the list of concerns, of the King’s perpetuation of the slave trade. Since the King’s perpetuation of slavery was not a constitutional concern going to the rights of the Americans as Englishmen, it was not relevant to their petition (Wills 1978, p. 59; pp. 67–69).
The petition of 1774 enjoined Britain to ensure the colonists their rights as Englishmen, and the petition of 1775 outlined the Reasons for Taking Up Arms in defence of those rights.
See futher von Gentz (1977). Admittedly, there were reasons why the Americans did not claim their rights explicitly as British citizens. As Becker (1942, pp. 80–134) outlines, the American arguments against British taxation had evolved, by the 1770 s, to the stage where they could not coherently distinguish between legitimate and illegitimate taxation. Their move was thus to reject British Parliamentary sovereignty altogether, while still arguing that they owed allegiance to the King. This is why none of the grievances listed in the Declaration are grievances against Parliament.
‘It is often forgotten that the document which we know as the Declaration of Independence is not the official act by which the Continental Congress voted in favour of separation from Great Britain’ (Becker 1942, p. 3).
I thank an anonymous reviewer for pushing me on this clarification.
Cavell does not use these terms; however, I do think they are an accurate encapsulation of (at least some of) the themes that he grapples with in that engaging paper. See, in particular, his seventh ‘perlocutionary condition’ (intended to contest Austin’s own felicity criteria): ‘You may contest my invitation to exchange, at any or all of the points marked by the list of conditions for the successful perlocutionary act, for example, deny that I have standing with you, or question my consciousness of my passion, or dismiss the demand for the kind of response I seek, or ask to postpone it, or worse. I may or may not have further means of response’: (Cavell 2006, p. 182).
Austin’s work on excuses is relevant here. I am thankful to an anonymous referee both for the example and for pushing me on this point.
This mix of active and passive has consequences for the kind of normativity that attends perlocutionary acts, as well as the kind of responsibility one takes for them, and for one’s response to them. I cannot be blamed for finding your promise alarming, though in a sense I am partially responsible for it being alarming, insofar as, given the right circumstances and the right relations between us, I could find it otherwise than alarming. The question of the kind of normativity attached to a perlocutionary act is a topic for another discussion.
I reiterate that perlocutionary acts are ‘essentially contestable’; they need not necessarily be contested. There is merely the necessary potential for contestation.
One such line of argument would focus on the processes of social recognition that occur in and through speech acts, and which are part of the process of constitution of the political subject. Another line of argument (the ‘republican’ line of argument) would focus on the development of individual character through perlocutionary speech acts in the public sphere. I think, in fact, that these two lines of argument are closely related [as Pettit (1997, Ch.4) suggests; see also Skinner (1978) and, in a different key, Taylor (1991), who also addresses the idea of a ‘reversion’ to the private from the public] and need to be brought together; but I do not have space to support this further suggestion here. Arguably, Rousseau makes a version of this argument in The Social Contract in his contrast between the public body and the private body; see Strong (2002).
Both Hutchinson and Lind contested not only the accuracy of the facts contained in the Declaration, but also—as good lawyers—the claim that independence was a necessary result of those facts, even if they did obtain. However, the bulk of their responses was directed to the factual accuracy of the Declaration (Wills 1978, pp. 65–66).
Cover further refers to Blackstone’s account of punishment for treason in his Commentaries, namely to be hanged, drawn, and quartered. The extreme violence of this punishment reflects the seriousness of the ‘crime’ (of treason) committed by the Americans: it was not only a breach of a law, but an attack on the very human relations that underlie law. It is the recognition of this fact (Wills 1978) in the Declaration that gives it such perlocutionary force.
References
Adams, Abigail, John Quincy Adams, L.H. Butterfield, Marc Friedlaender, and Mary-Jo Kline. 1975. The book of Abigail and John: selected letters of the Adams family, 1762–1784. Cambridge: Harvard University Press.
Adams, John Quincy. 1831. An oration addressed to the citizens of the town of Quincy: on the fourth of July, 1831, the fifty-fifth anniversary of the independence of the United States of America. Boston: Richardson, Lord & Holbrook.
Arendt, Hannah. 1963. On revolution. London: Faber and Faber.
Armitage, David. 2002. The Declaration of Independence and international law. The William and Mary Quarterly 59: 39–64.
Austin, John Langshaw. 1975. How to do things with words. Cambridge: Harvard University Press.
Austin, John Langshaw. 1979a. Performative utterances. In Philosophical papers, ed. J.O. Urmson, and G.J. Warnock, 232–252. Oxford: Oxford University Press.
Austin, John Langshaw. 1979b. A plea for excuses. In Philosophical papers, ed. G.J. Warnock, and J.O. Urmson, 175–202. Oxford, New York: Oxford University Press.
Bailyn, Bernard. 1967. The ideological origins of the American revolution. Harvard: Belknap Press.
Balkin, Jack M. 1999. The Declaration and the promise of a democratic culture. Widener Law Symposium 4: 167–180.
Becker, Carl L. 1942. The Declaration of Independence: A study in the history of political ideas. New York: A.A. Knopf.
Butler, Judith. 1993. Bodies that matter: On the discursive limits of ‘sex’. New York: Routledge.
Butler, Judith. 1997. Excitable speech: A politics of the performative. New York: Routledge.
Cavell, Stanley, ed. 2006. Performative and passionate utterance. In Philosophy the day after tomorrow, 155–191. Harvard: Belknap Press.
Constable, Marianne. 2007. Just silences: The limits and possibilities of modern law. Princeton: Princeton University Press.
Constable, Marianne. 2010. Our word is our bond. In Speech and silence in American law, vol. 22, ed. A. Sarat. New York: Cambridge University Press.
Constable, Marianne. 2011. Law as a claim to justice: Legal history and legal speech acts. U.C. Irvine Law Review 1: 631–640.
Cover, R. 1985. Violence and the word. Yale Law Journal 95: 1601–1629.
Crary, Alice. 2002. The happy truth: J.L. Austin’s How to do things with words. Inquiry 45: 59–80.
Crary, Alice. 2006. Austin and the ethics of discourse. In Reading Cavell, ed. A. Crary, and S. Shieh, 42–67. New York: Routledge.
Davidson, Donald. 1963. Actions, reasons, and causes. Journal of Philosophy 60: 685–700.
Davidson, Donald. 1984. Communication and convention. Synthese 59: 3–17.
De Ville, Jacques. 2008. Sovereignty without sovereignty: Derrida’s Declarations of Independence. Law and Critique 19: 87–114.
Derrida, Jacques. 1973. Speech and phenomena: and other essays on Husserl’s theory of signs. Trans. David B. Allison. Boston: Northwestern University Press.
Derrida, Jacques. 1974. Of grammatology. Baltimore: John Hopkins University Press.
Derrida, Jacques. 1986. Declarations of independence. New Political Science 7: 7–15.
Derrida, Jacques. 1988. Signature, event, context. In Limited, Inc., Trans. Samuel Weber, and Jeffrey Mehlman. ed. Jacques Derrida, 1–22. Evanston, IL: Northwestern University Press
Derrida, Jacques. 1990. The force of law: The ‘mystical foundation of authority’. Cardozo Law Review 11: 920–1045.
Detweiler, Philip F. 1962. The changing reputation of the Declaration of Independence: The first fifty years. The William and Mary Quarterly 19: 557–574.
Dummett, Michael. 1973. Frege: Philosophy of language, 1st ed. Cambridge: Harvard University Press.
Gallie, William B. 1956. Essentially contested concepts. Proceedings of the Aristotelian Society 56: 167–198.
Gu, Yueguo. 1993. The impasse of perlocution. Journal of Pragmatics 20: 405–432.
Habermas, Jürgen. 1984. The theory of communicative action. Trans. T. McCarthy. Boston: Beacon Press.
Himmelfarb, Dan. 1990. The constitutional relevance of the second sentence of the Declaration of Independence. Yale Law Journal 100: 169–187.
Honig, Bonnie. 1991. Declarations of Independence: Arendt and Derrida on the problem of founding of a republic. The American Political Science Review 85: 97–113.
Hutchinson, Thomas. 1776. Strictures upon the declaration of the Congress at Philadelphia: in a letter to a noble lord, &c. London: Eighteenth Century Collections Online.
Kukla, Rebecca, and Mark Lance. 2009. ‘Yo!’ and ‘Lo!’: The pragmatic topography of the space of reasons. Cambridge: Harvard University Press.
Lewis, David. 1969. Convention: A philosophical study. Cambridge: Harvard University Press.
Lewis, David. 1975. Languages and language. Minnesota studies in the philosophy of science 7: 3–35.
Lind, John. 1776. An answer to the Declaration of the American Congress. London: Cadell, Walter, Sewell.
Lutz, Donald S. 1989. The Declaration of Independence as part of an American national compact. The Journal of Federalism 19: 41–58.
Mahoney, Dennis. 1986. Declaration of Independence. Society 24: 46–48.
Norval, Aletta. 2007. Aversive democracy. Cambridge: Cambridge University Press.
Norval, Aletta. 2009. Passionate subjectivity, contestation and acknowledgement: Rereading Austin and Cavell. In Law and agonistic politics, ed. A. Schaap, 163–178. Surrey: Ashgate.
Pettit, Philip. 1997. Republicanism: A Theory of freedom and government. Oxford: Oxford University Press.
Pryor, Judith. 2007. Constitutions: Writing nations, reading difference. NY: Birkbeck Law Press.
Riley, Patrick. 1974. On finding an equilibrium between consent and natural law in Locke’s political philosophy. Political Studies 22: 432–452.
Riley, Patrick. 1976. Locke on “voluntary agreement” and political power. Political Research Quarterly 29: 136–145.
Rousseau, Jean-Jacques. 2003. The social contract and other later political writings. ed. Victor. Gourevitch, Cambridge: Cambridge University Press.
Saward, Michael. 2010. The representative claim. New York: Oxford University Press.
Searle, John. 1969. Speech acts. London: Cambridge University Press.
Sesonske, Alexander. 1965. Performatives. The Journal of Philosophy 62: 459–468.
Skinner, Quentin. 1970. Conventions and the understanding of speech acts. The Philosophical Quarterly 20: 118–138.
Skinner, Quentin. 1972. Motives, intentions and the interpretation of texts. New Literary History 3: 393–408.
Skinner, Quentin. 1978. The foundations of modern political thought. New York: Cambridge University Press.
Skinner, Quentin. 1989. A reply to my critics. In Meaning and context: Quentin Skinner and his critics, ed. James Tully, 234–290. Princeton: Princeton University Press.
Strawson, Peter. 1964. Intention and convention in speech acts. The Philosophical Review 73: 439–460.
Strong, Tracy B. 2002. The politics of the ordinary. Lanham: Rowman and Littlefield.
Taylor, Charles. 1991. The ethics of authenticity. Cambridge: Harvard University Press.
Tushnet, Mark. 1996. Constituting we the people. Fordham Law Review 65: 1557.
Urmson, James Opie. 1977. Performative utterances. Midwest Studies in Philosophy 2: 120–127.
von Gentz, Friedrich. 1977 [1800]. The origin and principles of the American Revolution, compared with the origin and principles of the French Revolution. Trans. J.Q. Adams. New York: Scholars’ Facsimiles and Reprints.
White, James Boyd. 1989. Heracles’ bow: Essays on the rhetoric and poetics of law. Madison: University of Wisconsin Press.
White, Morton. 1978. The philosophy of the American Revolution. New York: Oxford University Press.
Wills, Garry. 1978. Inventing America: Jefferson’s Declaration of Indepedence. London: Athlone Press.
Wood, Gordon. 1969. The creation of the American Republic 1776–1787. Chapel Hill: University of North Carolina Press.
Acknowledgements
Thanks must go to my supervisors, Professor Helen Irving and Dr Kevin Walton, for their constant encouragement and support, to David Allinson and Andrew Cooper for comments and clarifications, and to the editors of Res Publica and anonymous referees for their insightful criticisms.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Hominh, Y. Re-Reading the Declaration of Independence as Perlocutionary Performative. Res Publica 22, 423–444 (2016). https://doi.org/10.1007/s11158-015-9289-7
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11158-015-9289-7