Deciding to Repeat Differently: Iterability and Decision in Judicial Decision-Making

Abstract

This article examines the extent to which judges have a responsibility to engage in subversive legal interpretations. It begins by showing that despite strong legal and political discourses, there remains space for the judge to resist the force of these discourses. To illustrate this point, the article discusses the strong and unified crisis discourse that was used to justify the shift in legal discourse from prosecution of terrorism to prevention of terrorism after 9/11. Subsequently, Jacques Derrida's concept of iterability is used to examine how space to resist crisis discourse was present and used by the court of first instance in the seminal post-9/11 terrorism case of Hamdi v. Rumsfeld. The article proceeds to address the conditions under which the judge had the responsibility to resist this crisis discourse. Here Derrida's work on undecidability is brought into conversation with Ronald Dworkin's classic theory of judicial interpretation. In doing so, I push beyond Dworkin's recognition of the role of political morality in legal interpretation and show that the judge cannot engage in legal interpretation without becoming a participant in the struggle over meaning. This article provides judges guidance in responding to their inevitable implication in this struggle.