Chapter Ten The Law of Signatures

Chapter Ten

The Law of Signatures1

Michael Hancher2

I In criticizing J. L. Austin. 's theory of speech acts, Jacques Derrida and Jonathan. Culler

have argued, in. part, that Austin. misunderstands how signatures function. They claim

that he ignores the essentially formal and "iterable" structure of a signature - a

structure that betrays the absence of any subjective consciousness on the part of the

sign.or. I argue that their concept of iterability does not fully apply to this case. Rather,

legal practice in England and the United States countenances a wide range of variation

for signatures, variation that is consistent with and legitimized by Austinian. assumptions

about personal agency. The fact that the legal situation is somewhat different in. France

may explain the structure of Derrida's argument.

II Napoleon authenticated documents and indicated his will by in.scribing

the abbreviation "Nap" or the mere in.itialletter "N." Underour law, there

is no disability in. lesser men to do the like. Each one of us has the

privilege of adopting any combination ofletters or other hieroglyphic as

his written name, and the power to produce legal results by using it as his

signature. Corbin on Contracts3

This essay begins in a dispute between a live philosopher and a dead one, a dispute that

never took place. Jacques Derrida is the live philosopher; the dead one was J. L. Austin.

228 Law and Aesthetics

- "dead at age 48," as his Parisian publishers announce in a brisk epitaph on the back

cover of his major book. 4 The dispute is about the nature of signature: sign/nature, that

is, in an archetypal form.

Austin introduced the topic casually, while identifying the surface forms that a

performative utterance might take. Aside from the explicitperformative, featuring the

first person singular pronoun coupled with a verb in the first person singular present

indicative active mood (e.g., "I [hereby] grant you permission to go"), there are two

other forms, in which the agent and the speech act are expressed only implicitly or

indirectly. These are: elliptical forms (like, "Sure, fine") in which neither the agent for

the speech act nor the act itself is coded in the surface grammar; and what Austin called

"impersonal passive forms with signature appended" -such as, "Permission granted,

[signed] John Jones."5

Because a performative utterance is "something which is at the moment of

uttering being done by the person uttering" (p. 60), it matters who that person - the

agent of the act- is. To use the pronoun "I" is one way to locate the agent explicitly.

It is also enough simply to be "the person who does the uttering - what we may call

the utterance - origin."6 Alternatively, the person doing the uttering will be identified

in written utterances (or "inscriptions["]), by his appending his signature

(this has to be done because, of course, written utterances are not tethered

to their origin in the way spoken ones are).

The "I" who is doing the action does thus come essentially into the

picture. An advantage of the original first person singular present

indicative active form - or likewise of the second and third impersonal

passive forms with signature appended- is that this implicit feature of

the speech-situation is made explicit.7

Derrida discusses this passage near the end of his now famous paper on Austin,

"Signature Event Context."8 As Derrida interprets Austin's notion of signature, it

presupposes that the signer has a unique, transcendental, original and originating

subjective consciousness wholly self-possessed and self-conscious - a convenient

target for deconstruction.

The Law Of Signatures 229

Derrida's response to Austin's remark about signatures is terse, partly because

it resonates with the earlier parts of his critique of Austin (not to mention with the rest

of his writings). But it carries considerable weight; for Derrida proposes at the outset

that the objections he will lodge against Austin's notion of written "signature" will be

"equally valid for that oral 'signature' constituted- or aspired to - by the presence

of the 'author' as a 'person who utters,' as a 'source,' to the production of the

utterance" .9 Later, scolding John Searle for ignoring this part of his critique of Austin,

Derrida insisted on its importance: "the section on signatures concerns the putative

'origin' of oral or written utterances, and thus, the constant and indispensable recourse

of all speech act theory. "10

In "Signature Event Context" Derrida argues against Austin that signatures

cannot signify a unique self at a unique moment because they are inherently multiple,

replicable, "iterable" (Derrida's technical term): a person's signatures constitute an

indefinitely large paradigm of identical inscriptions. "In order to function, that is, to

be readable, a signature must have a repeatable, iterable, imitable form."11 Derrida

later amplified this point: "I imitate and reproduce my 'own' signature incessantly.

This signature is imitable in its essence."12 If a person's signature always varied, and

never turned out the same way twice, how could it be a signature? Essentially

repeatable - at a later time, deferred - a signature is essentially ahistorical. It is

"detached from the present and singular intention of its production."13 As a self

imitation a signature is essentially counterfeit, forged, inauthentic, "improbable" ("i.e.

having little chance of coming to pass and in any case impossible to prove").14

Furthermore, of course, signatures commonly survive their signers, dramatizing

their historical alienation from any "source." The general situation of signatures turns

out to be just the reverse of what Austin assumed. "By definition, a written signature

implies the actual or' empirical non-presence of the signer. "15

Jonathan Culler has summarized and illustrated Derrida's critique. "A proper

signature, one that will validate a check or some other document, is one that conforms

to a model and can be recognized as a repetition.''16 Such formal iterability, Culler

notes, can be just as well provided by a facsimile check-signing machine as by a person


- indeed, better; and the fact that such checks get cashed proves that subjective

intentions are irrelevant to the functioning of such marks. "The requirement that a

signature be recognizable as a repetition introduces the possibility of a machine as part

of the structure of the signature at the same time as it eliminates the need for any

particular intention at the point of signature."17

Culler's particular example is a strong one, about as strong as he could have

chosen. For signatures on checks can legally be required to conform to a type. But

such formalism does not characterize the Anglo-American law of signatures in

general. Often the law requires nothing of a signature other than that it be a

documentary mark intended by the signer to be (and to be accepted as) a signature.

Furthermore, though this is a point of lesser importance, the production of signatures

by means other than that of personal signing - for example, by machine - does not,

in the law, subvert the personal authority that the signature represents.

The following summary paragraphs are from a standard legal encyclopedia, the

Corpus Juris Secundum; they indicate how variable signatures can be under American

law:

As a general rule and in absence of a statute providing otherwise, a

person may use any character, symbol, figures, or designation he thinks

proper to adopt as a signature, and be bound thereby, provided it is used

as a substitute for his name. A person may also use a fictitious name, a

firm name, or the name of another; and a signature used by a person may

be sufficient to give validity to an instrument even though it is illegible.

It is not necessary that the entire name should be written, and the insertion

in, or the omission from, a signature of a middle name is immaterial.

Signature may be by contraction of the real name. A signature may

be made by the use of initials only unless it is contemplated that the usual

and complete name should be used. Initials alone, if used as a signature,

are as efficacious as a signature as the whole name at length.

The Law Of Signatures

Generally, in the absence of a statute providing otherwise, a signature

may be made by the use of a mark where the signer is unable to write his

name, or even, according to some authorities, where he is capable of

Writing.18

231

Arthur Corbin, the author of a standard treatise on contracts, elaborates on this

informality, this lack of iterability:

The courts have been uniformly liberal inholding [a] memorandum to be

sufficiently signed without regard to the form of signature or the manner

of inscribing it. The signature of William Shakespeare would have

satisfied the statute [i.e., the Statute of Frauds, 1677, which codified

contract law] on each of three documents, even though he spelled it in

three markedly different ways and wrote it so illegibly as to require the

services of a paleographer to decipher it. A man may adopt any name as

his own and use it. The statute is satisfied by a signature that is much less

than the signer's full name. It may be an abbreviation, with no more than

the initial letters or even a single initial. It may be any symbol adopted

for the purpose.19

Corbin does immediately add a word of caution, but it does not weaken the

general point that I would make here:

Nevertheless, it is desirable to have a man's usual business signature, in

the customary business place on the paper. The more unusual it is in these

respects, the more testimony in addition to the face of the writing itself

may be required to establish the fact that the writing is "signed.''20

Here Corbin alludes to the fact that the authenticity of a signature is never fully

evidenced by the signature itself, but depends upon aspects of the historical context in

which it was inscribed. In doubtful cases extrinsic evidence is admissible - indeed,

necessary - to ascertain that context.

Oral evidence is undoubtedly admissible to explain the name or symbol

appearing on the document and to show the purpose for which it was put

there. No document can ever prove its own execution and delivery.


Whatever the form of the alleged signature, extrinsic testimony is always

necessary to prove when, by whom or by whose authority, and for what

purpose it was attached. (Corbin, above, 762)

Such questions arise most obviously in the case of a signature by mark, but they

are a general predicate of all signatures.

The crucial questions concerning a signature do not have to do with whether it

conforms to type. The crucial questions are: Who signed it? (Or: On whose authority

was it signed?) And also: With what intention was it signed? If it was signed with the

intention of testing a pen or practicing handwriting it was not a legally authentic

signature. Or, if it was signed with the intention of witnessing the signatures of others

on a contract it was not a legal signature to the contract itself. For a contract signature

must be affixed with the intention of authenticating the whole document.

Thus when one party or his agent merely adds his signature to the

document as witness of the signature of the other, the former is not bound

by the signature.21

The Uniform Commercial Code defines the word "signed" so as to include "any

symbol executed or adopted by a party with present intention to authenticate a

writing."22 A note repeats the stipulation: "The question always is whether the symbol

was executed or adopted by the party with present intention to authenticate the

writing."23

"To write one's name is not yet to sign it. What, then, is lacking for it to be a

signature?" The observation and the question, both apropos, are raised by Derrida

himself in Signeponge!Signsponge, a long essay about the poet Francis Ponge, which

he composed a few years after "Signature Event Context."24 Derrida merely raises the

question; he does not frame an answer. In fact "what is lacking" in such a case is

"present intention to authenticate the writing."

According to an article in the New York Times, there are "dozens of Richard

Nixon resignation statements in public hands, the result of Mr. Nixon's agreeing after

the fact to sign statements typed up by [autograph] collectors - usually on White

House stationery - and mailed to him." These typically take the following form:


Dear Mr. Secretary:

I hereby resign the Office of President of the United States.

Sincerely,

[signed] Richard Nixon

Though Nixon inscribes his name on these documents himself, he does not

legally sign them - no more than the presence of the perf ormative adverb "hereby"

renders his words an actual illocutionary act of resignation. The purported performance

is void not only because of defective circumstances (Nixon can hardly resign what he

no longer possesses), but also because in writing his name he does not intend to

authenticate a present act of resignation. Maybe what he does intend is to devalue the

despised original letter by multiplying bogus copies. But according to the Times, the

autograph market places a low value on such imitation "signatures"; collectors prefer

authentic documents.

III A speaker ordinarily knows what she says, but a signer may well not know whatever

is said in a document she signs. She may have signed it without reading it, or without

understanding it. This difference between the speaker's speaking and the signer's

signing, which both Austin and Derrida ignore, may seem to justify Derrida's

description of a signature as fundamentally alienated from the signer. ("By definition,

a written signature implies the actual or empirical non-presence of the signer.")26

Certainly a person who did not understand what she was signing would fail to satisfy

the impossibly exacting criteria that Derrida projects upon Austin's model oflanguage

use.

Derrida repeatedly satirizes these (supposed) criteria as demanding omniscience.

Derrida's Austin requires that the speaker of a speech act completely apprehend the

total context of action, and possess an absolute self-awareness. The speaker can act

only in "an exhaustively definable context," and "in order for a context to be

exhaustively determinable, in the sense required by Austin, conscious intention would


at the very least have to be totally present and immediately transparent to itself and

others" (Derrida, 188, 192). (A person who signed a document without reading it

would obviously come nowhere near satisfying either criterion.)

The case can be made that is an exorbitant characterization of Austin's theory.

A philosopher whose notion of truth favors carefully hedged, situation-specific

predications along the lines of more-or-less true, in these particular circumstances and

for these particular purposes is not fairly to be charged with envisioning a totalizing

omniscience of the sort that Derrida here ridicules.27

Fully intentional acts may have vague contents. I may ask you to bring me "the

books on the dining-room table" without knowing precisely which books they are.28

You may agree to buy a pig in a poke. I may agree to buy lOOsharesofIBMatthe start

of business on some future day, at whatever the market priCe then may be, without

knowing now what that price is. As Corbin states, "It is quite possible for a party to

assentto be bound in accordance with terms of which he is then ignorant, just as he may

promise to pay a sum to be determined by the future market or by an arbitrator. ''29 Or

I may sign a document without having read it, intending nonetheless thereby to

authenticate it and to subscribe to its terms.30 Vagueness does not necessarily

undermine the intentionality of signature.

On the other hand, the signer must have some generic understanding of what she

is signing. Otherwise the verbal act that the signed document represents can be

repudiated as "not her deed." If she has been tricked into signing a document she may

plead non est factum; the purported act may be found void. 31 Various modem equitable

pressures would in effect enlarge the scope of that plea; one commentator on contract

law sees a progressive weakening of the "duty to read" rule and a movement toward

a doctrine of "true assent" (a matter of actually informed assent), away from the

formalist doctrine of "apparent objective assent."32 In any case, some degree of

intentional awareness is needed for a signature to be valid - though that degree may

fall well short of the totalizing subjectivity that Derrida fantasizes for Austin.


IV Thus far my discussion has centered on handwritten signatures, and the question of

how narrowly they must conform to type. The answer is that they do not need to

conform to any iterable form: rather, their authenticity depends upon the intentional

act of signing. But the latitude allowed to signatures includes even more than lexical

(name) variability, and orthographic variability; the medium can vary too. For

signatures need not be written at all: "Authentication may be printed, stamped or

written; it may be by initials or by thumbprint."33

In the absence of a statute prescribing the method of affixing a signature,

it may be affixed in many different ways. It may be written by hand, and,

generally, in the absence of a statute otherwise providing, it may be

printed, stamped, typewritten, engraved, photographed, or cut from one

instrument and attached to another. A signature lithographed on an

instrument by a party may be sufficient for the purpose of signing it ...

Facsimile signature of a person may be a genuine signature.34

Most of these options might seem to favor iterability: for aside from the option

of (variable) handwriting, they all involve rigorous replication according to type. (In

this respect they are like the impressions made by medieval seals, which anticipate

modem signatures in many respects.) But it is important that none of these iterable

formats is necessary to a signature; rather, any is sufficient, under specific subjective

circumstances. One may sign a document by imprinting it with one's name spelled out

in Times New Roman type, or by using a rubber signature stamp, or some other

instrument that will always make the signature the same; but it is not necessary to use

any such method- no more than it is required to use one signature stamp rather than

another - or one name rather than another. All that is necessary is that the signer

"attach a name or cause it to be attached by any of the known methods of impressing

the name on paper with the intention of signing it. •'3s

So in general it is misleading for Culler to define a "proper signature" as "one

that conforms to a model and can be recognized as a repetition." And it is misleading


for Derrida to propose that "by definition, a written signature implies the actual or

empirical non-presence of the signer." A person's signatures may be indefinitely

various. Furthermore, a person's signature must at the moment of signing be intended

as a signature. Normally, the person signing, the signature, and the signing intention

will be "present" at the same moment.

But it is also possible (not necessary) for the person signing to be absent,

deferred, "present" at the moment of signing only by proxy, thanks to some duly

authorized agent - and, possibly, some machine used by that agent.

Generally, a signature may be made for a person by the hand of another,

acting in the presence of such person, and at his direction, or request, or I

with his acquiescence, unless a statute provides otherwise. A signature

so made becomes the signature of ~e person for whom it is made, and it

has the same validity as though written by him .... It is not necessary under

all circumstances that the signature of a person made by the hand of

another at the request of such person should be made in the presence of

such person .... A signature may be made through an authorized agent.36

Note that this extension of signing-intention from the signer through an agent

is a legal phenomenon that is independent of the question of how the signature is

physically applied - how "iterable" it is formally. It is not iterability that creates

agency, but personal assignment. USA Today once proclaimed, with a hint of alarm,

"Federal computers make more than 2 billion payments a year without human

overseers."37 But surely there is more to it than that. Some duly authorized person

oversees the issuing of the bureaucratic checks that I cash, even though it is true, as

Culler observes, that the "signatory never saw the check nor entertained a specific

intention to pay [me] the sum in question."38 (The problem here is with the word

"specific." "Specific intention" is too strong a requirement, whereas "general

intention" would make sense. The strategy, once more, is to exaggerate the psychological

prerequisites for a successful performance of a speech act: the result is a straw man

easily knocked down.)


Here I should consider to what extent Culler's example - and argument- are

strong. Culler speaks of "a proper signature" on "a check or some other document."

The argument from iterability can not hold for just any document, but it might seem

to hold for a check or similar nepotiable instrument. The law provides that when a

depositor and a bank enter into an agreement whereby the bank will disburse funds

under a written order from the depositor, the bank may take the precaution of requiring

the depositor to file with the bank a typical specimen signature, and also of requiring

the depositor (or her agent, using a machine or not) to conform to that signature, more

or less, when signing instructions to the bank. 39 Such a precaution makes it easier for

the bank to judge, from reading the signature, who signed it, or on whose authority it

was signed. In such special cases, because of a commercial need for efficiency,

typicality is relied upon to indicate personal identity; and it may seem but a step to the

conclusion that personal identity is an epiphenomenon of the type. But these are

narrow cases - not parasitic, nor yet fundamental, just special. The general rule in

Anglo-American law is that personal identity may find legal expression in atypical

signatures.

v What, however, of French law? What is required for a signature to be valid in the legal

culture that nurtured Derrida's critique of Austin? More is required in France than in

England. The French Civil Code distinguishes between documents executed under the

aegis of a notary (privileged in their very name as actes authentiques) and documents

executed without such supervision, "under private signature" (actes sous seing

prive).40 Derrida construes Austin's comments on signature under the latter rubric.41

Although the Code provides that this less formal arrangement can achieve full legal

effect, the courts and commentaries impose certain qualifications. These can be

summarized under two heads: a signature must be distinctive (that is, it must be special

to the signer); and preferably it will be typical (that is, customary or usual for that

signer).


The requirement of distinctiveness bars personal signatures that are not written

by hand, and also signatures that are written by hand but are mere crosses, even if the

person is illiterate. (By contrast, as we have seen, both kinds are tolerated in Anglo

American law.)

The preference for typicality qualifies what is otherwise a liberal tendency in

French legal practice to tolerate a variety of forms of a name. French courts do not

require that the first name or the last name be used, or both, <,>r even that the writing be

legible; but it is desirable that the form of the signature be one habitually used by the

signer. That is, customariness - repetition, iteration - matters; it helps for the

signature to be always "the same." If presented with a dubious signature the court is

advised to consider "if the signatory signs habitually in the same manner with the same

mistakes and the same improprieties."42

1 Presumably such a privileging of habit and predictability, relatively more

marked in French law than in Anglo-American law, shapes Derrida's notion of the

"iterability" of signatures. Disciplined by a legal system that favors formal (habitual,

repeatable) signatures, Derrida subverts and escapes it by imagining formal iteration

as an endless repetition and an unauthorized deferral of essence, inviting imitation and

forgery.

Confronting Austin, Derrida projects upon him his own formalist assumptions,

which he proceeds to deconstruct. His parochial bias is understandable. Culler, an

American, follows suit incautiously, for Anglo-American law cares less about the

formal stability of signatures. Iterability may condition French signatures in general

and American bank-draft signatures in particular, but not all signatures.

Instead of the iterability that Derrida posits, the Anglo-American law credits

variability. Usually a person's signature need not be any particular name "always

already" the same, but may be any name; it may be any alphabetic form of any name;

it may be any graphic form of any alphabetic form of any name - made by any

productive or reproductive process -just so long as it is made by an authorized person

and in accord with the proper intention. Self-deconstructing as an informal mark, a


signature does not displace but depends upon and defers to subjective intention.

Furthermore, variability and intentionality are not marginal or parasitic aspects of the

concept of signature, but perpetual possibilities inherent to it and definitive of it. In

that respect signatures typify all speech acts.43

1.

2.

3.

4

5.

6.

7.

8.

NOTES

Michael Hancher is Professor of English at the University of Minnesota, Minneapolis.

I have presented versions of this paper in several settings: the annual meeting of the Midwest Modern Language Association, Minneapolis, Nov. 1983; the Fourth Annual Colloquium, International Association of Law and Semiotics, Penn State University- Berks, May 1988; and faculty seminars at the University of Minnesota Law School, Nov. 1988, and Tulane Law School, New Orleans, Dec. 1988. My colleagues Norman Fruman and Gordon Hirsch made helpful comments on an early draft. I owe particular thanks to Roberta Kevelson (Penn State) and Jeanne Louise Carriere (Tulane) for their help and encouragement.

Arthur L. Corbin, 1950, Corbin on Contracts: A Comprehensive Treatise on the Rules of Contact Law, St. Paul, Minn.: West Publishing, 2:768 n. 73.

J. L. Austin, 1970, Quand dire, c' est faire, trans. Gilles Lane, Paris: Seuil, back cover.

J. L. Austin,1962, 1965, How to Do Things with Words, New York: Oxford, pp. 61, 62 (example adapted).

Ibid., p. 60 (Austin's emphases).

Ibid., pp. 60-61 (Austin's emphases).

Jacques Derrida, 1977, "Signature Event Context," trans. Samuel Weber and Jeffrey Mehlman, Glyph 1, pp. 172-197. This essay, a conference paper first delivered in 1971, was published in French as "Signature evenement contexte," first in Derrida's Marges de la philosophie, 1972, Paris: Minuit, pp. 365-93; then in the volume of conference proceedings, La communication: Actes du XVe congres de l' Association des societes de philosophie de languefrancaise, 1973, Montreal: Montmorency, pp.49-76, where it was supplemented by a transcript of the discussion of the paper (pp. 393-431 ). The Marg es text was translated by Alan Bass for Derrida's Margins of Philosophy, 1982, Chicago: Univ. of Chicago Press, pp. 307-330. "Limited Inc ab d ... ,"in which Derrida replies to a critique of"Signature Event Context" by John R. Searle, was published in Glyph, 2,1977, pp. 162-254. The WeberMehlman translation of"Signature Event Context" is reprinted in Derrida's, 1988, Limited

240

9.

Law and Aesthetics

Inc. Evanston, Ill.: Northwestern Univ. Press, pp. 1-23, together with "Limited Inc ab c .. . "(pp.29-110), and an exchange with Gerald Graff titled "Afterword: Toward and Ethic of Discussion" (pp. 111-54). Except as otherwise noted, I quote from the versions of"Signature Event Context" and "Limited Inc a b c ... " that appeared in Glyph.

Derrida, "Signature Event Context," p. 194. In referring to the concept of" 1 'auteur' comme 'personne qui enonce,' comme 'source,"' Derrida uses quotation marks not only to cite but also to criticize Austin's supposed notion of the speaker as author ("Signature evenement contexte," La communication, p. 74). In fact this grand notion is an artifact of the French translation that Derrida used (Quand dire, c'estfaire, p. 60).

10. Derrida, "Limited Inc ab c ... ,"pp. 197-98.

11.

12.

13

14.

15.

16.

17.

18.

19.

Derrida, "Signature Event Context," p. 194.

Derrida, "Limited Inc ab c ... ," p. 167.

Ibid. In the discussion that followed his reading of his paper at the conference in 1971, Derrida insisted, in more explicit detail than in the' paper itself, on the formal iterability of signtures: Pour que ces signatures aient effet de signature dans le meilleur des cas, les cas ou le cheque et la trait[e] sont honores parce qu'il y a provision en banque et que le traite de paix est respecte, dans tous ces cas, les meilleurs des cas, pour que la· signature fonctionne comme telle, il faut qu'elle soit identifiable, lisible, que sa forme soit reconnaissable, c'est-a-dire repetable. Une signature qui n'aurait lieu qu'une fois dans une forme non cod'e, non lisible; ne serait pas une signature. Par consequent, pour qu'une signature ait lieu une fois, il faut qu'elle ait deja eu lieu plusiers fois ou qu'elle aitdeja pu avoir lieu plusieurs fois. (Derrida, "Signature evenement contexte," discussion, p. 406)

Derrida, "Signature Event Context," p. 196; "Limited Inc ab c ... ," p. 167.


Jonathan Culler, 1982, On Deconstruction: Theory and Criticism after Structuralism, Ithaca: Cornell Univ. Press, p. 126.

Ibid., pp. 126-27. Culler is one of many critics to recite and endorse Derrida's concept of the iterable signature. For more recent examples see Peggy Kamuf, 1988, Signature Pieces: On the Institution of Authorship, Ithaca, N.Y.: Cornell Univ. Press, especially pp. viii-x; and Jonathan Goldberg, 1990, Writing Matter, discussed below in note 40.

"Signatures," 1953, Corpus Juris Secundum, St. Paul, Minn.: West Publishing, 80: 1286-87, 1289 (notes omitted).

Corbin on Contracts, 2: 767-68 (notes omitted; emphasis added).

20 .

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.


Ibid., pp. 767-68 (note omitted).

Chitty on Contracts, 23rd ed.,1968, London: Sweet and Maxwell, p. 86.

American Law Institute, 1978, Uniform Commercial Code, 9th ed. Philadelphia: American Law Institute, p. 16.

Ibid., p. 21.

"Ecrire son nom n'est pas encore signer, de quoi s'en faut-il?" Jacques Derrida, 1984, Signeponge/Signsponge, trans. Richard Rand, New York: Columbia Univ. Press, pp. 106, 107. This project dates back at least to 1975 (p. ix).

Robert D. Hershey, 31 Aug. 1987, "A Quirky Market for Autographs," New York Times, Chicago ed.; the letter appears in an accompanying photograph.


See my article, "Performative Utterance, the Word of God, and the Death of the Author," Semeia 41, 1988, pp. 27-40, especially pp. 35-36, 37 n. 8. Gerald Graff challenges Derrida on this general strategy of exaggeration in "Afterword: Toward an Ethic of Discussion," Limited Inc. p. 115. Derrida responds at some length (pp. 115-31), equivocating the question at the outset.

My memory, perhaps inaccurate, would credit this example to E. D. Hirsch, Jr.; it suits the general argument of Validity in 1 nterpretation, 1967, New Haven, Conn.: Yale Univ. Press, especially pp. 46-49. "It is possible to will an et cetera without in the least being aware of all the individual members that belong to it" (p. 49).

Corbin on Contracts, §607.

Ibid.

Samuel Williston, 1970, A Treatise on the Law of Contracts, 3rd ed., ed. Walter H. E. Jaeger, Rochester, NY: Baker, Voorhis, pp. 332-34.

John D. Calamari and Joseph M. Perillo, 1977, The Law of Contracts, 2nd ed., St. Paul, MN: West Publishing Co., p. 346. See also the comments by Mary Joe Frug on a contract case, quoted by Tamar Lewis, "For Feminist Scholars, Seconds Thoughts on Law and Order," New York Times, Chicago ed., 30 Sept. 1988.

American Law Institute, Uniform Commercial Code, p. 16.

Corpus Juris Secundum, 80: 1292-94, (notes omitted; emphasis in original). Contrast Derrida, Signeponge/Signsponge, p. 126: "Autograph may ... be reproduced, but then it is no longer original, merely reprinted."

I.

,, !

242

35.

36.

37.

38.

39.

40.

Law and Aesthetics

Corpus Juris Secundum, 80: 1284-85 (note omitted).

Corpus Juris Secundum, 80: 1291-92 (notes omitted).

John Hillkirk, "Computer Age Brings New Fears," USA Today, 4 Oct. 1983.

Culler, op. cit., p. 126.

Henry J. Bailey, 1979, Brady on Bank Checks, 5th ed., Boston: Warren, Gorham, and Lamont, n.p., §§ 3.1-2. But a bank may properly pay "a check bearing the genuine signature of its depositor, even though the signature on the check in not in the same form as on the signature card on file with the bank",(§§ 3.1, emphases added).

The relevant article of the Code is no. 1322: "L'acte sous seing prive, reconnu par celui auquel on I' oppose, ou legalement tenu pourreconnu, a, entre ceux qui I' ont souscrit et entre leurs heritiers et ayants-cause, la meme foi que l'acte authentique", Code Civil, Paris: Litec, 1982, p. 508. ("An instrument under private signature, acknowledged by the opposite party or legally held to be acknowledged, has, among those who signed it and among their heirs and assigns, the same effect as a certified instrument"; John H. Crabb, 1977, trans., The French Civil Code, South Hackensack, N.J.: Fred B. Rothman, p. 244. The generalizations that follow are derived from the notes to article 1322 provided in the Litec edition of the Code (pp. 508-09); from the annotations to the Code Civil, 1978, 78th ed., Paris: Dalloz, pp. 621-22; from the annotation provided to article 1322 by Georges Wiederkehr, 1979, in Juris-Classeur Civil, Paris: Techniques, n.p. ( §§ 25-27); from the article on proof in Repertoire de droit civil, 1970-79, 2nd ed., Paris: Dalloz, 6: 61; and from a leading authority, E. Normand, 1930, De la signature des actes authentiques et prives, Paris: Les Presses Modernes, pp. 9-38.

41. "That all the difficulties encountered by Austin intersect in the place where both writing and presence are in question is for me indicated in a passage such as that in Lecture V in which the divided instance of the juridic signature [seeing] emerges." "Signature Event Context," p. 193 (bracketed phrase in original; emphasis added).

42. Normand, De la signature, pp. 30: "Parfois il arrive ... que sans etre incomplete, la signature soit incorrecte, mal orthographiee. Dans ce cas, croyons-nous, il faut toujours rechercher si le signataire signait habituellement de la meme maniere avec les memes fautes et les memes incorrections." See also p. 31: "en maniere d 'acte sous signature privee ... nous croyons que pour qu'une signature illisible soit reconnue valable, il faut que las personne qui a trace ces traits indechiffrables soit dans l 'habitude signer ainsi." Wiederkehr cites the authority of Normand among others in framing his definition of signature as "une marque distinctive, propre a son auteur, et sous lequelle la personne se fait habituellement connaitre" ( § 25, emphasis added). See also Repertoire de droit civil, 6: 61: "L'inscription du prenom ou du sum om suffit sic' est laf orme habituelle utilisee par la personne pour signer" (notes omitted; emphasis added).

43.


For a recent and subtle argument antithetical to my own, see Jonathan Goldberg, 1990, Writing Matter: From the Hands of the English Renaissance, Stanford, Ca.: Stanford Univ. Press, expecially chapter five, "Signatures, Letters, Secretaries: Individuals of the Hand." With Derridean bravura Goldberg examines Renaissance English and continental handwriting textbooks and related materials, identifying cultural pressures that would normalize personal literacy by reducing variety both in individual handwriting styles (partly through the successive hegemonies of italic and rounded hands), and in forms of personal signatures. He sees such tendencies towards normalization as ironically depersonalizing the very "individual" that is constructed by literate education in the service of state. However, the generally restrictive cultural processes that Goldberg describes only dramatize by contrast the generous indulgence that English and American courts extend to indefinitely variable signatures.

NEW STUDIES IN AESTHETICS

Robert Ginsberg General Editor

Vol. 11

PETER LANG New York• San Francisco• Bern

Frankfurt am Main • Berlin • Wien • Paris

Roberta Kevelson, Editor

Law and Aesthetics

PETER LANG New York • San Francisco • Bern

Frankfurt am Main • Berlin • Wien • Paris

Library of Congress Cataloging-in-Publication Data

Law and aesthetics / Roberta Kevelson, editor. p. cm. -(New studies in aesthetics; vol. 11)

Includes bibliographical references. 1. Law and aesthetics. I. Kevelson, Roberta.

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Law and aesthetics / ed. by Roberta Kevelson.-N ew York; Berlin; Bern; Frankfurt/M.; Paris; Wien: Lang, 1992

(New studies in aesthetics; Vol. 11 ISBN 0-8204-1817-X

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Acknowledgements

We gratefully acknowledge the Pennsylvania State University's support. We

especially thank the following: the Berks Campus, the Commonwealth Educational

System, the College of the Liberal Arts and the Philosophy Department.

Thanks also to Keith Wuchter in preparing this manuscript for publication.

Support for preparation and publication of this Volume, Law and Aesthetics,

was made available through the Center for Semiotic Research in Law, Government and

Economics of Penn State, and a grant from the Xerox Foundation designated for

publication sponsored by the Center.

We also wish to express our appreciation of the special support for the Center's

publication projects made possible by contributions from the Office of Research and

Graduate Studies of Penn State.

Documents

Chapter Ten The Law of Signatures