Violence, Ethics, and Law

The paradoxical relationship between law and violence is a familiar puzzle in legal and political theory. On the one hand, the legitimating ideology of modern law – most obviously in purportly liberal-democratic systems – is founded on two aspirations. First, law aspires to distinguish, among actions which on their face appear to constitute „violence“, the authorized from the unauthorized, the legitimate from the illegitimate. Second, law purports to underpin an institutional framework which allows both governmental and (within strictly defined limits) non-governmental actors [1] to act, in a variety of ways, against illegitimate violence and, on occasion, the threat of such violence.

To put the aspirations of modern law in this way is already to suggest the dilemma referred to in my title. For, on the other hand, law itself may plausibly be understood as founded in – even as a system of – violence, since it can carry within itself no account of its own legitimacy. This point is perhaps made most graphically in Derrida’s well known essay Force of Law;[2] but it is at the heart of a long tradition within legal theory which engages with the fact that ‘positive law’ can, by definition, generate no explanation of its own foundations and hence has to be understood as a distinctively institutionalised system of force. [3] 

The unpalatable taste of this conclusion, with its apparently devastating implications for the supposed normativity of law, tends to call forth one of two general responses among legal theorists. The first response, sticking to its positivist guns, as it were, sidesteps the problem of violence by espousing an „internal“ or „legal“ point which focuses on the capacity of legal discourse to generate a system of norms which is coherent on the basis – or presupposition [4] – that a particular agent such as a judge adopted this perspective. In effect, this banishes the problem of violence to another discipline – to sociology, moral or political philosophy, economics, psychology, psychoanalysis, or political science. The second response is that of the natural law tradition. It has a more inclusive and ambitious approach to legal theory, in that it denies that the question of violence can be banished to another realm of inquiry, and insists that the (moral) legitimacy of law is internally related to law’s validity. On the natural lawyers view, law is a moral system and not merely the institutionalisation of force: the idea of law as violence is roundly rejected in favour of the idea of law as an institutionalisation of practical ethics. Neither of these responses, of course, is likely to satisfy anyone who takes the sort of position espoused by Derrida in Force of Law.

Interestingly, the idea that law’s violence can be tempered by an ethics has now begun to emerge in the context of a different genre of legal theory. In recent postmodern and critical legal theory, there has been a marked focus on ethics. [5] Conversely, writers on what one might loosely call ‘postmodern ethics’ [6] are taking a renewed interest in the juridical sphere. Law’s violence, and its ethical limits and possibilities have, in short, provided a productive seam of inquiry in contemporary social theory. [7] Yet the sense of the ethical which is invoked here appears to be significantly different from that in ancient or modern natural law traditions. Indeed, the relevant debates are clouded by movements back and forth between ideas of the ethical as ‘good’, ‘right’ or ‘desirable’ (in a sense which either echoes the natural law tradition or evokes modernist moral and political theory), and of the ethical as ‘open’ or ‘beyond’ (as invoked by those taking deconstructionist or postmodern approaches). [8] Not only the idea of ethics, but also the relationship between the ethical, the just, and the moral, are being used in different senses.

Another distinctive feature of this recent literature is its tendency to associate the ethical or the just with the feminine or with sexual difference. [9] Given the persuasive feminist interpretation of law’s masculinity, and the fact that both ethics and justice are often defined by contrasting them to law, this tendency to feminise the ethical is perhaps understandable. It also ties up with the postmodern conception of the ethical as ‘open’ or ‘beyond’, via the Lacanian argument that woman’s jouissanceescapes representation in language, and hence symbolises that which lies beyond violent or differencerepressing institutionalisation. Yet, as I shall argue, this feminisation of the ethical puts an undue theoretical burden on the concept of sexual difference, and one which threatens not only to collaps into a form of essentialism but also to confer upon the femininea set of associations or responsibilities which bear a striking resemblance of those imposed on woman in nineteenth and early twentieth century anti-feminist or separatist discourse. [10]

Similar difficulties attend the use to which the concept of violence is being put on the other side of this theoretical coin. In researching this paper, I have found myself increasingly bemused about just what is meant by ‘violence’; more and more troubled by the need to unpick the analytic and rhetorical aspects of the claim that law may – or must? – be understood as violence, or as founded in violence, or as having violent aspects; and occasionally affronted by the potential trivilisation of the sorts of violence perpetrated by legal institutions upon, for example, criminal defendants within an inflated rhetoric of law’s generally violent or objectifying method. Nevertheless, in what follows, I shall remain within the framework of violence and ethics, while interrogating and adapting it as my argument develops. For, even as I have struggled with the problems just rehearsed, I have found that a more differentiated conception of violence and ethics indeed provides a useful interpretive framework within which to assess some of the central issues of contemporary legal theory.

Law’s Violence

 So far, I have focussed on the difficulty of distinguishing legitimate from illegitimate force as the key to the paradoxical relationship between law and violence. But from Derrida’s point of view, and in particular in the context of the distinction which he wants to emphasise between law and justice, the issue of law’s violence has not merely to do with the legitimacy of legal force. Rather, it has to do with the nature of legal judgement and legal subjectivity. In fixing subjects and events within a particular framework, and in drawing practical and ultimately – at least internally – unchallengeable conclusions, the enforcement of law (anticipated, inevitably, in law itself) closes off the ‘possibility of justice’; in applying general rules to specific cases, the irreducible particularity of the human world is foreclosed. This, as much as the violent foundations of law which reverberate in the moment of judgement, lies at the heart of Derrida’s argument, and it relates to the social practice of law understood in either positivist or naturalist terms.

The same is true of another, rather different way of thinking about law as violence. This is the idea, central to socio-legal studies, that the social practice of law has disciplinary effects – effects which stretch beyond the juridical and sovereignty aspects of legal power. [11] Like law’s violence in Derrida’s sense, these aspects of legal or quasi-legal power – including the power to shape the kinds of social subjects which we may become – are difficult to rationalise within either the liberal accounts of law’s legitimacy espoused by positivists or in terms of naturalist accounts of law’s moral credentials. I mention this argument because it expands the horizon of Derrida’s argument. For it implies that we may usefully interrogate the violence of law’s determinations well beyond the obvious forum of judicial decision. And in doing so, as I shall argue below, it opens up the possibility – indeed necessity – of theorising law not merely as a body of doctrine but also as a social practice, deploying and enacting various different forms of power.

I want to focus on this debate about the contours of ‘violence’, because I think that it helps to shed light on some crucial issues in contemporary legal theory. For the position which we take on law’s violence – how we conceptualise it, whether we think it is inevitable and, if so, whether we think it is interesting or problematic – makes a decisive difference to our position on the relationship between the ethical and the legal. If it is the case not only that law is founded in (by definition unlegitimated) violence but also that the practice of law – the force of law anticipated and enacted by the enunciation of legal standards – implies violence, then the consequences for what we might call the ‘utopian’ voice in legal theory seem significant. If violence is located within the deep structures of, for example, language or law, difficult questions arise about how to construct strategies of opposition (indeed even of critique). To put it in another way, equally familiar in recent critical legal theory, if law inevitably (‘violently’) flattens out or represses difference and particularity, [12] fixing subjects in pre-given identities, the project of finding some ethical space within law seems destined to find its terrain only on the margins of legal practice, in law’s failures and incompletenesses rather than its (possibly reconstructed) successes. This, of course, is one way of reading the Derridaean project of celebrating the ‘play of difference’; it is also one way of looking at reception within some critical legal theory of the Lacanian assertion of an excess which escapes language (or law). [13] The logical impossibility of challenging linguistic or legal violence through language or law therefore pulls in the direction of the postmodern notion of the ethical as ‘beyond’. And, as I shall argue, this link has important implications for the relationship between critique and the progressive political interventions from which even Derrida is reluctant to distance himself.

My particular interest in these questions of violence and ethics in legal theory derive from my engagement with feminist legal theory. [14] Feminist scholars have been among the most rigorous and forthright critics of the substance and structure of law in modern societies, and feminist legal theory has drawn on Derridaean deconstruction. Foucaultian conceptions of power and a Lacanian analysis of the sexual dynamics of language – the necessary role of the repressed ‘Other’ in the constitution of legal subjectivity – to produce an analysis of law’s violence. Yet much feminist thought is also preoccupied to a significant degree by the idea that law might be otherwise than it has been and is: that we might imagine (and institutionalise?) a law capable of delivering sexual justice, or at least a law significantly less sexually unjust than contemporary law has been shown to be. This sort of ‘ethical’ voice in feminist legal theory is perhaps most obviously represented by the substantial tradition of feminist legal reformism, much of it located within liberal or marxist political values. [15] The contrasting, postmodern vision of the ‘ethical’ (or perhaps utopian) in relation to law is exemplified by Luce Irigaray’s engagement with the question of special rights for women [16] and by Drucilla Cornell’s idea of an ‘ethical feminism’. [17] These feminist writers draw on the techniques of critique and deconstruction to produce an analysis of law’s specifically sexual violence. In Cornell’s case, this analysis is premised on a broadly Lacanian view of sexual difference; Irigaray’s philosophy, though critical of aspects of Lacans’s account of sexual difference, also has a substantially psychoanalytic orientation. And both make an explicit link between the deconstruction of law’s sexual violence and ‘ethics’.

Does it make sense at once to espouse a broad deconstruction of law’s violence and to entertain utopian dreams about either an ethical law or an ethical space within and around law? And how, if at all, do these utopian feminist projects relate to the tradition of reformist scholarship?

Conceptualising the Subject of Law

Now, I want to set out some of the main themes in feminist legal theory which might plausibly be concerned with the critique of the violence of legal judgement or legal power more broadly conceived. Perhaps the most fundamental issue in this context is the debate about how modern law conceptualises its subjects. Though taking different forms in different feminist traditions, a key concern has been to develop a critical analysis of the ways in which law conceptualises its subjects as autonomous, self-identical and (in some versions) purportedly disembodied individuals. [18] This is an ambitious argument, because it tries to locate sexual difference in the very conceptual framework out of which law is constructed. Moreover, it connects directly with the questions of violence and ethics, in that the feminist critique suggests that legal subjectivity to be a site of violent sexual exclusion. However, a significant strand of feminist theory has also argued for a reconstruction of the legal subject in less violent – and hence more ethically appealing – terms; and it is this ambivalence about the inevitability of law’s violence, and the shifts between different senses of the ethical, in feminist legal theory which are of particular interest to the project of this paper.

Synthesising from a wide range of feminist work, we could put the main contours of the debate about the legal subject in the following way. First, it has been argued that modern law conceptualises its subjects as pre-social individuals; in other words, it takes itself to be responding to persons pre-legally constituted as individuals with certain ‘natural’ characteristics, interests, needs. The important point about this is that it disguises the dynamic role which law itself plays in constituting social and legal subjects in specific ways. In other words, law is one important social institution or practice which constitutes us as subjects. Of course, this argument is not distinctively feminist but more broadly constructionist. For example, the debate about corporate liability for crime takes place against a backcloth of assumptions about the ‘fictitious’ nature of corporate personality as opposed to ‘natural’ human personhood. Yet from a constructionist perspective, the way in which we are constituted as subjects for the purposes of criminal law is neither natural nor given: law itself decides/selects which features of our lives are relevant for the purposes of interpreting us as subjects of criminal law.

This constructionist argument does, however, have some very striking feminist applications. For example, and most vividly, the law of rape constitutes us as subjects sexed in particular ways; and the particular ways in which rape law constitutes sexed subjects provides an excellent example of the varieties of legal power. It is not just a question of the ‘violent’ exclusion of the rape victim’s experience – her (or his) constitution as an ‘unspeakable subject’ – with its direct consequences for criminal law’s capacity to respond to sexual violence. It is also a question of sexual offences’ disciplinary power – the capacity of a range of criminal laws -. making it possible or impossible, easy or difficult to live certain kinds of lives. This set of arguments connects closely with an important group of debates in contemporary feminist philosophy – particularly those concerned with the constitution of the body in social practices. [19]

Secondly, and following on from this, it has been argued that legal subjects are typically conceptualised in terms of distinctive characteristics which are culturally associated with the masculine. This argument generally takes off from the analysis of a number of dichotomies in Western thought, male/female; public/private; reason/emotion; active/passive; individual/community; form/substance – which are interpreted as both hierachised and sexualised. [20] To the extend that this interpretation is convincing, we can construct arguments about the ‘sex’ or ‘gender’ of social institutions. In legal terms, and staying for the moment with the analogy of criminal law, the argument goes something like this: The subject of criminal law is defined, doctrinally, in terms of a particular set of capacities. Three sorts of capacities are of particular importance: the cognitive capacities of reason and understanding; the volitional capacity to control one’s behaviour; the moral capacity to know right from wrong. These capacities are in turn associated with the masculine in western culture: they are the capacities of the mind and of reason rather than emotional or embodied attributes. In substantive offences such as rape, this cashes out in terms of a conceptualisation of both wrongdoing and harm in primarily mental, rational or proprietary terms. [21]

Thirdly, it has been argued that the legal subject, particularly in civil or public law, is typically interpreted as the bearer of individual rights, and that both rights themselves and rights-based reasoning are constructed in ways which are either culturally marked as masculine or inimical to women’s interests or both. For example, drawing on Carol Gilligan’s work, feminist legal theorists have noted the marginalisation of relational reasoning in deductive legal reasoning; the cultural celebration of the ‘sharpness’ and ‘rigour’ of analytic, deductive reasoning in both legal practice and legal education; the cultural inferiority of the ‘feminine voice’ in moral reasoning and its silencing in law; the marginalisation of emotion, commitment, relationship; and the interpretation of anything approaching an ‘ethics of care’ as impossible or difficult to articulate within law. [22] This strand of analysis has generated a huge debate about the ‘feminine’ voice in adjudication and legislation, [23] as well as a controversy about whether Gilligan’s gender-association of the two voices really holds up to further empirical scrutiny. But whatever one’s view of the general adequacy of Gilligan’s approach, there can be no doubt that her argument has been of great importance in pointing up features of legal reasoning which may have exclusionary effects along a number of different lines.

This kind of analysis has been associated with a widespread feminist critique of rights. In a range of feminist work, [24] rights have been criticised as competitive, individualistic, and ultimately indeterminate. [25] Significantly from the point of view of our question about violence and ethics, this has led, in the work of writers from such different traditions as Jennifer Nedelsky [26] and Luce Irigaray, to a feminist move to reconstruct or reconceptualise rights in less atomistic, competitive and more intersubjective, relational terms. [27] Renata Salecl’s argument about the location of rights within an empty space of Kantian universalism, while differing significantly from the ‘standard’ feminist critique of rights and of the Cartesian conception of subjectivity, suggests why rights have constituted a figure of promise as well as an object of critique in recent feminist thought. [28] From her Lacanian perspective, the discourse of universal human rights represents the ‘fantasy scenario in which society and the individual are perceived as whole, as non-split’: but the discourse also allows us to discern an alternative ‘feminine’ or ‘postmodern’ logic of rights which moves beyond an idea of rights as a form of property, as something which can be possessed. I will return to these debates later in my analysis of ‘utopian’ projects in feminist legal theory. [29]

Summing up, constructionist ideas about the nature of human being have been invoked as part of the conceptual framework out of which feminist legal theory has begun to shape what we might call the project of ‘sexing the subject of law’. [30] This project has three distinct senses. First, it may be regarded as providing a critical analysis geared to unearthing law’s gendered assumptions about the ideal-typical legal subject – i.e. interpreting the law as sexed (in its most ambitious forms, at a conceptual level), and revealing the ‘violent’ exclusion of the (feminine) ‘other’ whose identity is the necessary underpinning of the phantasmatic, self-identical legal subject. Second, it may be regarded as working towards an understanding of the dynamic role of law in producing sexed identity, and sexed social subjects – i.e. interpreting the law as a sexing practice. Third, it may be regarded as implicitly utopian; as moving towards the horizon of ‘resexing’ law: i.e. changing the shape of its assumptions about sexed and sexual identity. It is this third sense which reveals most clearly the split between different senses of the ethical and of violence and which tracks feminist theory’s ambivalent stance vis-à-vis modernist and (non-pragmatist) postmodernist perspectives. This is not always apparent, however, because the three different senses of the ‘sexing’ project have not always been carefully distinguished in contemporary feminist thought.

Specific Debates Emerging from the Sexing Analysis

One can illustrate the elision of critical, reformist, or utopian projects with some specific debates which emerge from the „sexing“ analysis. Unacknowledged shifts in conceptions of the violent and the ethical appear to be one of the main symptoms – or maybe causes – of this elision. [31]

I shall set out from the basic premise of the feminist critique of the legal subject: modern law assumes a rationalistic conception of the person as individual abstracted from its social, bodily and affective contexts, and this conception of the person is implicitly marked as male. This leads to two kinds of feminist legal strategy. The first, which may be called ‘contextualisation as critique’, engages in a critical analysis which aims to show that this conceptualisation of the legal subject is itself a contextualisation, a contruction; that law is not ‘innocently’ acting as ‘the mirror of nature’; [32] that the construction of legal subjectivity is a contextualisation which represses ‘the other’; and, finally, that the shape of this specific contextualisation is in any case inconsistently realised in law. For example, the shaping of the time frame in rules of criminal law and evidence shifts in arbitrary ways: [33] An array of defences broaden the legal subject in terms of pre-existing factors (the experience of long-term domestic violence, for instance) which amount to conditions under which subjectivity is realised. [34] Similarly in the law of contract, the recognition of losses caused by one party’s reliance on the other as grounding a claim for damages has broadened out the concept of the contractual relationship in certain areas: for certain purposes, yet not others, the contracting subject is seen not just as an agent making a bargain at a particular moment, but also as part of a web of social and economic relationships which generate legal responsibilities. [35] This immanent critique of law’s shifting framework is once again a way of emphasising law’s dynamic role in shaping our conceptions of the world: It reveals the stereotype of the rational, atomistic legal subject to be not a seamless ideological fiction but a form which is unevenly realised in legal doctrine.

Our perception of the unevenness of law’s conceptualisation of subjectivity is sharpened if we widen our perspective to look beyond legal doctrine to the broader legal and social discourses which shape women’s and men’s insertion into the doctrinal framework. And it is surely important to do so if – as a social theorist must be – we are interested in law not merely as an articulated body of doctrine but as a developing social practice. Certainly, we can find doctrinal examples of the abstracted legal subject. We can also find telling doctrinal examples of the subject contextualised in sexual and bodily terms: English criminal law’s incest provisions, which differentiate the sexual position of woman and man as, respectively, passive and active, is an obvious one. [36] But this does not mean that we can get an adequate feminist analysis of the law of incest, rape or anything else just by looking at legal rules. We also need to look at the broader interpretive frames which shape the impact and meaning of doctrine: rules of evidence, enforcement practice and so on. The examples which we have considered suggest that even within its current conceptual limits, law is nonetheless capable of contextualising – indeed does contextualise – its subjects in ‘embodied’ or ‘situated’ ways, albeit not consistently. So there is always a risk of overplaying the ambitious conceptual claim in feminist legal theory. Again, it may be helpful to think about the analogy with corporate criminal liability: it is not just law which is important in marginalising corporate liability, but also broader social discourses of responsibility, conduct, agency and blame which underpin legal arrangements.[37]

The second kind of feminist project proceeding from the sexing analysis may usefully be called ‘contextualisation as strategy’. Again, drawing on Carol Gilligan’s work, it sometimes seems to be assumed that if we were to broaden the ways in which the legal subject is contextualised – bringing in a wider array of social relationships, bodily attributes or states, emotional experiences as relevant evidence contemplated by legal rules, broadening the context in which legal disputes can be framed – we might break down the association of the legal subject with the masculine and hence make law more accessible/sensitive to women’s concerns. In other words, we would have an impact on this particular aspect of law’s exclusionary violence, rendering law more open and flexible, and hence more ethically sensitive to multiple subject positions, capable of moving closer to the ‘possibility of justice’. In this argument, crucially, the two rather different senses of the ethical mentioned above – the ethical as ‘good’ and the ethical as ‘open’ or ‘beyond’ – are elided. And with this elision, an important distinction between what I shall call – tracking my earlier distinction between critical, reformist and utopian projects – ‘institutional reformist strategy’ and ‘utopian rhetorical strategy’ is lost. [38]

The strategy of contextualisation is, however, double-edged, and this feature holds some cautionary insights for the critical focus on „law’s violence“. When understood as recontextualising a violent encounter in terms of, for example, the effect of long term violence within a relationship, the impact of gendered stereotypes on sexual behavior, or the effects of shock on the demeanor of witnesses in criminal trials, recent criminal law developments towards mediation or the acknowledgment of a „battered woman syndrome“ undoubtedly expand law’s capacity to accommodate particularity and avoid violent exclusions. But – as becomes clear once we move from legal rules to legal discourse, from law as body of doctrine to law as social practice – their tendency to be interpreted in ways which are closely related to prejudicial stereotypes about male and female bodies and sexualities („woman as victim of hormones“, for example) suggests that the strategy has its dangers. It suggests, significantly, that law’s violence is a product not only of its own dispositive method but also of the surrounding relations and vectors of power.

The lessons for our general puzzle about ‘law as violence’ and the ‘ethical space in law’ lie in the intellectual questions raised by the strategy of contextualisation. In terms of the violence of judgement – of closing off challenge and inquiry, of imposing binary structures, of repressing difference – it seems obvious that the ‘ethical appeal’ of recontextualisation depends not merely on the nature of the specific recontextualisation proposed but also on the sense in which we are deploying the idea of the ‘ethical’. On the ‘postmodern’ notion of the ethical, any legal recontextualisation will be ‘violent’ because of the features of legal judgement already noted. This may be logically persuasive, but it does not take forward the political concern implied by the rhetorical invocation of ‘violence’. On the ‘modern’ notion of the ethical, by contrast, any potential recontextualisation demands a further substantive assessment of the ‘pros and cons’ of the particular strategy. The same is true of a third, ‘pragmatist’ notion of the ethical, according to which we may continue to espouse and pursue ideals, values and commitments even once we have let go of the ‘modernist illusion’ that they have metaphysical foundations or transcendent status. [39]

We can illustrate this with examples drawn respectively from what would probably be regarded as modernist and postmodernist camps. Starting with the former, an obvious example would be the feminist argument for the embrace of an embodied, relational (feminine) subjectivity in law. There is an analogy here with the communitarian critique of liberalism in political theory, which uses a social constructionist approach to subjectivity not only to criticise but also to move beyond the partiality of liberal individualism. [40] Charles Taylor, for example, argues in his essay on multiculturalism that women should be allowed access ‘to their own culture’. [41] As many commentators have noted, this move risks replacing one ‘logic of identity’ with another, [42] (as well as romanticising its central recontextualising frame of ‘community’, a characteristic which one might argue also applies to some postmodern invocations of ‘the ethical’). [43]

There is an interesting – and troubling – analogy here with controversy about so-called ‘cultural defences’ in criminal law. Should evidence of white anglo-saxon protestant, or african-american, or asian-american, or hispanic culture be taken into account in deciding, for example, whether a particular defendant reacted in a ‘reasonable’ way, or in deducing what they actually intended or foresaw? If so, are we committed to the view that, for example, the male rape defendant who says that he genuinely thought a dissenting woman was consenting because of the sexist culture in which he was educated has a presumptive cultural defence? Are we to take ‘expert evidence’ on ‘special’ cultures? And, if so, how are we to avoid the implication that the legal process is reifying these ‘cultures’, fixing defendants and plaintiffs alike in their cultural pigeonholes as part of the complex fabric of the case – well removed from the more obviously ‘violent’ decision, yet equally ‘violent’ in their effects, particularly once the constitutive, normalising power of law and legal processes is taken on board? There is a real worry here about fixing women within a sexually-based culture which feminism has always struggled to redefine. It is this kind of problem which gives the postmodern conception of the ethical as ‘open’ or ‘beyond social practice’ its critical bite in contemporary legal theory. And yet it is arguably a strength of both modernist and pragmatist approaches that they allow for a debate about the substantive ethics or politics of specific recontextualisations – a debate which appears to be closed off or at least inhibited by these ‘postmodern’ conceptions.

Let us turn now to a rather different example: Luce Irigaray’s argument for women’s access to a distinctive culture, a distinctive subjectivity. Irigaray’s argument is that a recognition of special rights for women is a precondition for women’s being treated as fully human subjects rather than merely as ‘other’ to the self-identical masculine ego. Irigaray’s analysis goes to the core of the problematic way in which dominant liberal discourse represses difference, and in particular of the way in which it excludes the feminine from subject status. Her argument is that a relational conception of rights would have to be premised on the recognition of irreducibly different subjectivities which relate in an intransitive way to one another. [44] Until women, in other words, are recognised as full subjects, those of us with female bodies will never be either citizens or right-bearers. But if women were accorded special rights appropriate to the feminine genre – including rights to virginity and motherhood, to guardianship of the home, as well as rights to equal institutional representation and access to economic resources – this would itself represent a recognition of our subjectivity, which would in turn change the nature of our possible relations with men and with one another.

Irigaray’s argument is distinctive because it is explicitly premised on the idea that human identity is made up not of one but of two poles; masculine and feminine; and that discourses and institutions such as law must accomodate these two genres of human being if they are to break out of the repressive (violent) exclusion of the (female) other. Hers is a strategy of metaphor and mimesis. The aim is to disrupt conventional metaphorical associations, and to effect a revaluation – indeed a humanisation – of the feminine by mimicking, ironically, the masculine construction of the feminine and changing its meaning in the process. It is a reading and speaking against the grain of contemporary institutions, whether legal, political, or linguistic. As such, it is a philosophy whose conception of ethics is literally utopian. Hence sexual difference – like the unrepresentable feminine in Lacanian thought – becomes the metaphor for an ethics of ‘becoming’ rather than an ethics of moving towards – let alone arriving at – a fixed destination.

Yet, notwithstanding her ironic method, I would suggest that the rhetorical impact of Irigaray’s case for special rights for women risks, in her own terms, doing just as much ‘violence’ as does the more generally criticised elision of feminity with accondition of victimisation. [45] There are two main reasons. First, the implicit prioritisation of sexual over other differences might itself be argued to entail a form of difference-repressing violence: indeed, this would be one way of viewing critical race theory’s critique of feminism. One way of understanding Irigaray’s argument is that it replaces one universalism – a universalism which has been effectively deconstructed as totalising and excluding – with two. These two are mapped onto the masculine and the feminine. They take no account of the many other differences which structure subjectivity and experience. [46] There is a liberatory potential in Irigaray’s thought that ‘je suis sexué(e)’ implies ‘je ne suis pas tout(e)’. But this depends on our reading her analysis of sexual difference as a metaphor for difference more generally. We need, in other words, to resist the binarism which her analysis of sexual difference as fundamental reasserts, and to locate the ethical impulse to ‘attend to otherness’ not just within the vector of sexual difference but within those of racial, ethnic, national, class and other differences too.

The second difficulty with Irigaray’s position on rights, and one which is of particular relevance to this paper, is that in constructing an argument which is a blend of critique and of what might be called postmodern ethics, Irigaray borrows (unusually within her work) the language of a very different project – that of institutional reform in the modernist sense. In doing so, she apparently espouses a curiously naive and instrumental optimism about legal reform and takes up a position which assumes a dubious autonomy of law. Read literally, she also invites a policy response which, in the current political, economic and legal conditions of either France or Britain, would be retrogressive. Understood as political rhetoric, the replay of sexual stereotypes is already problematic. [47] Understood as a programme for reform, it is potentially disastrous. We have only to think of actual instances of ‘special rights’ for women – those surrounding pregnancy are the best example – to see their adverse implications for women in a world in which activities such as child-rearing have not been effectively economically or culturally valued. In the world of real politics, irony may not be the best policy.

The utopian strategy of contextualisation sets out to tap the resources of the imagination: to read and speak against the cultural grain, and hence to make possible the impossible task of thinking beyond the present towards a different future. Yet, however radical its theoretical credentials, it is easily (mis)read as a standard reformist project which risks obscuring the full range of law’s violence by focussing on one of its aspects – an aspect which is unevenly realised in actual legal arrangements. By losing sight of the varying ways in which legal practices currently contextualise their subjects, the argument makes it seem as if everything about law’s violence turns on the repression of difference in the moment of judgment or formal classification. And this emphasis occludes our perception of law’s more pervasive – and, at least rhetorically, equally violent – disciplinary power, not to mention the material ‘field of pain and death’ within which law operates. [48]

Of course, one could argue that every contextualisation entails its own logic of identity, and hence its own excluding violence. This is logically impeccable, but it has the disadvantage that it blunts our perception of real shifts in the mode of contextualisation – shifts which we may have pragmatic and political reasons for wanting to track. More fundamentally, it trivializes the argument about law’s violence both because it is generalizable and because it directs attention away from all the other – extra-legal as well as legal – factors which block the ‘possibility of justice’ in more historically contingent – and hence potentially tractable – ways. If the impossibility of justice through law is a matter of logic, then all radical lawyers can go home, or take early retirement, or retrain as poets or freedom fighters. But if law’s violence is not – as Derrida suggests – such as entirely to close off progressive legal analysis and political action, we need some framework for distinguishing between its different aspects. Such a framework must be grounded in a socio-historical analysis of the conditions of particular social orders at particular points in time, and in applying it, we must show a willingness to argue for our ethical commitments.

Conclusion

This review of feminist work on the legal subject confirms some of the difficulties of any attempt to convert a critical, deconstructive argument about the shape of legal subjecthood into a utopian argument about opening law to the „play of difference“. When a further elision is made with reformist arguments for policies such as informalising legal processes, widening laws of evidence, and making explicit law’s accommodation of certain kinds of difference, the difficulties multiply. Yet this review also demonstrates that feminism’s political impulses will tend to draw it – in crude terms – from the deconstructive to the reconstructive. But all feminist issues may be approached from a number of different points of view – of legal theory, of the sociology of law and of social theory, and of critical techniques of deconstruction. The question of how laws might or should construct subjectivity may be seen as a reformist question, as a moral and a political/democratic issue, or as a „utopian“ issue in postmodernist mode. From the postmodern perspective, we cannot go further without simply reproducing the problems of law’s excluding violence which are the objects of its own critique. But this perspective risks effacing political action. As soon as – like Irigaray – the postmodernist is drawn back into the field of political action, she must confront if not modernise then at least pragmatist ethical questions: What will be the effects of this (rhetorical) strategy; what are the recommendations of the likely outcome?

Throughout this paper, I have argued for a focus on the influence of extra-legal discourses in shaping the excluding force of law, and insisted on the need for a certain pragmatism in assessing the recommendations of particular recontextualisations. These arguments imply that the Derridean focus on law’s violence suffers from much of the formalism, the ahistoricism, the focus on power as sovereignty to the exclusion of power as discipline, and the doctrinal orientation which characterises analytic legal theory. The violence of judgment which Derrida locates in law infects, on his own analysis, any discourse, just as any linguistically articulated practice will contain, in the logic of the Derridaean system, the shifting play of difference and hence the possibility of justice. While Derrida’s analysis of the force of law is highly suggestive, its invocation of law’s violence and its evocation of justice (like, one might add, „the ethical space“ in so much contemporary legal philosophy) remain rhetorical rather than substantial. They are hence of limited interest to those who, while accepting in large part the proposition that law can never attain justice, would nonetheless like to think that the degree of injustice perpetrated by law can gradually be affected by critical analysis and pragmatic political action. And feminism, in short, should be pragmatic in its deployment of a range of critical and reformist arguments, while being pragmatist in its espousal and pursuits of the commitments which define it. And for both pragmatic and pragmatist reasons, it needs to handle the undifferentiated rhetoric of law’s violence with care.

 

[1] It is often said that the constitutional state claims the monopoly of violence, but this is an exaggeration; rather, it claims a monopoly in defining the circumstances under which violence is legitimate. See Joseph Raz: The Authority of Law. Oxford 1979, chap. 2.

[2] Jacques Derrida: „Force of Law: the ‘Mystical Foundation of Authority’“. In: Drucilla Cornell/Michael Rosenfeld/D.Gray Carlson (eds.): Deconstruction and the Possibility of Justice. New York 1992. The intimacy of law and violence is often associated with Robert Cover’s claim in the opening paragraph of „Violence and the Word“ that legal interpretation takes place „in a field of pain and death“. Yale Law Journal 95, 1986, 1601. Cover’s argument depends upon a significant distinction between ‘the word’ of law and the violence which marks its implementation.

[3] See Margarete SeeSeeMargarete(1996): Delimiting Law. Davies: Delimiting Law. London 1996.

[4] As, respectively in the positivist theories of H.L.A. Hart: The Concept of Law. Oxford 1961; Hans Kelsen: General Theory of Law and State. Cambridge, Mass. 1945.

[5] See Zygmunt Bauman: Postmodern Ethics. Cambridge, Mass. 1993.

[6] See Alison Young/ Austin Sarat (eds.): „Beyond Criticism: Law, Power, and Ethics“. In: Social and Legal Studies 3, 1994. Judith Butler: Exitable Speech. New York 1996.

[7] See Luce Irigary: An Ethics of Sexual Difference. Ithaca, N.Y. 1993.

[8] See Costas Douzinas/Ronnie Warrington/Shaun McVeigh: Postmodern Jurisprudence: The Law of Text in the Texts of Law. London 1991. Douzinas/ Warrington: Justice Miscarried: Ethics and Aesthetics in Law. New York 1994. And their „Face of Justice: A Jurisprudence of Alterity“. In: Young/Sarat 1994 (see note [6]). Douzina’s and Warrington’s interpretation of ethics is drawn from Lévinas, and hence explores the responsibilities generated by radical alterity.

[9] This is true not of feminist works such as Irigaray’s 1993 (see note [7]), invoke the figure of Antigone to symbolise the commitment to justice in contrast to law. See also Peter Goodrich: Law in the Courts of Love: Literature and Other Minor Jurisprudences. London 1996, exploring medieval texts describing laws created and administered by women and, significantly, represssed within the canon of legal history.

[10] For further discussion, see below. See also Mariana Valverde: Life and Death Questions: Gender Justice and Irony (manuscript 1999).

[11] See Michel Foucault: Discipline and Punish. New York 1977. The History of Sexuality. Vol. 1. New York 1988. For further discussion, see Nicola Lacey: Unspeakable Subjects: Feminist Essays in Legal and Social Theory. Oxford/ Evanston, Ill. 1998, chap. 8. And, from a different point of view: Iris May Young’s conceptualisation of violence as one aspect of power: Justice and the Politics of Difference. Princeton, N.J. 1990.

[12] As Alan Norrie has recently noted („From Critical to Social-Legal Studies. Three Dialectics in Search of a Subject“. In: Social and Legal Studies 9, 2000, 85), this aspect of Derrida’s argument reveals his retention of a primarily analytic, rather than socio-historical, approach to legal critique. I shall take up later in this paper the question of whether such analytic generalisations are an appropriate method for critical possibilities of the legal.

[13] See Drucilla Cornell: Beyond Accommodation. Ethical Feminism, Deconstruction, and the Law. New York 1991; The Philosophy of the Limit. New York 1992.

[14] Lacey 1998 (see note [11]).

[15] See, in different veins, Catharine MacKinnon: The Sexual Harassment of Working Women: A Case of Sex Discrimination. New Haven 1979. Sandra Fredman: Women and the Law. Oxford/ New York 1998.

[16] Luce Irigary: J’aime à toi: Esquisse d’une félicité dans l’ histoire. Paris 1992; Je, Tu, Nous: Toward a Culture of Difference. New York 1993; Thinking Difference: For a Peaceful Revolution. New York 1994. For the philosophical background to Irigaray’s specific interventions in law, see her Marine Lover of Friedrich Nietzsche. New NietzscheNieztscNewYork; Speculum of the Other Woman (1985); This Sex is not One (1985).

[17] Cornell 1991/ 1992 (see note [13]). See also her Transformations. New York 1993. And: The Imaginary Domain. New York 1995.

[18] See Ngaire Naffine: Law and the Sexes: Explorations in Feminist Jurisprudence. Sydney/London 1990; Jennifer Nedelsky: „Reconceiving Autonomy“. In: Yale Journal of Law and Feminism 1, 1989, 7.

[19] See Judith Butler: Gender Trouble. New York 1990; Bodies that Matter. New York 1993; Moira Gatens: Imaginary Bodies: Ethics, Power, and Corporeality. New York 1995; Elizabeth Grosz: Volatile Bodies. Towards a Corporeal Feminism. Bloomington 1994.

[20] See Frances Olsen: „Feminism and Critical Legal Theory: An American Perspective“. In: International Journal of the Sociology of Law 18, 1990, 199.

[21] See Lacey 1998: chap. 4 and 7 (see note [11]).

[22] Carol Gilligan: In a Different Voice: Psychological Theory and Women’s Development. Cambridge, Mass. 1982. See also Mary Joe Frug: Postmodern Legal Feminism. New York 1992; Nel Noddings: Caring: A Feminine Approach to Ethics and Moral Education. Berkeley 1984; Selma Sevenhuijsen: Citizenship and the Ethics of Care. Feminist Considerations on Justice, Morality, and Politics. London 1998.

[23] See Suzanna Sherry: „Civic virtue and the feminine voice in constitutional adjudication“. In: Virginia Law Review 72, 1996, 543.

[24] Similar arguments are of course to be found in the Marxist and socialist traditions: See Tom Campbell: The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights. London/Boston 1983. Jeremy Waldron (ed.): Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man. London 1987. Some of them may even be argued to derive from Jeremy Bentham. See Lacey: „Bentham as Proto-Feminist?“ In: Current Legal Problems 51, 1998, 441.

[25] See Judy Fudge: „The Effect of Entrenching a Bill of Rights on Political Discourse“. In: International Journal of the Sociology of Law 17, 1998, 445. Judy Fudge/Harry Glasbeek: „The Politics of Rights: A Politics with Little Class“. In: Social and Legal Studies 1, 1992, 45. Elizabeth Kingdom: What’s Wrong with Rights? Problems of Feminist Politics of Law. Edinburgh 1991.

[26] „Reconceiving Rights as Relationship“. In: Review of Con-stitutional Studies 1, 1993.

[27] There is an interesting contrast here between feminist critique of rights and critical race theorists’ more pragmatic approach. See Patricia J. Williams: The Alchemy of Race and Rights. Cambridge, Mass. 1991.

[28] Renata Salecl: The Spoils of Freedom: Psychoanalysis and Feminism after the Fall of Socialism. London/New York 1994, chap. 8.

[29] Salecl’s argument about rights, though it concludes by contrasting modern and postmodern logics, seems to me to gesture at a framework which might be used to challenge the dichotomy. On the capacity of pragmatism to disrupt aspects of the modernist/postmodernist opposition, see further below.

[30] See Ngaire Naffine/Rosemary Owens (eds.): Sexing the Subject of Law. North Ryde, N.S.W./ London 1997.

[31] It is illustrated in both MacKinnon’s work on pornography and Irigaray’s work on rights, 1994 (see note [15]).

[32] Richard Rorty: Philosophy and the Mirror of Nature. Princeton, N.J. 1979.

[33] See Mark Kelman: „Interpretive Construction in the Substantive Criminal Law“. In: Stanford Law Review 33, 1981, 591.

[34] Alan Norrie: Crime, Reason and History. London 1993.

[35] Hugh Collins: The Law of Contract. London 1998.

[36] Sexual Offences Act 1956 ss. 10 & 11.

[37] See Lacey: „Philosophical Foun-ations of the Common Law: Social not Metaphysical“. In: J. Horder (ed.): Oxford Essays in Jurisprudence (4th Series) (forthcoming 2000).

[38] Another example of such elision may be drawn from the widespread debates about alternative dispute resolution. See Lacey 1998 chap. 5 (see note [11]).

[39] Both Bauman (see note [5]) and Rorty describe their positions as ‘postmodern’ because of their anti-foundationalism (see in particular Rorty: „Postmodern Bourgeois Liberalism“. In his collection: Objectivity, Relativism and Truth. Cambride, England/New York 1991.) The pragmatist position differs, however, from the postmodern (or perhaps deconstructionist) evocation of the ‘ethical’ as ‘open’, in that it envisages a substantive debate about values and ideals and a political struggle to realise them.

[40] See Elizabeth Frazer/Nicola Lacey: The Politics of Community. Toronto 1993.

[41] See Taylor’s contribution to Amy Gutman (ed.): Multicul-turalism and the ”Politics of Recognition”. Princeton, N.J. 1992.

[42] See in particular Young 1990 (see note [11]).

[43] On this point, see Rose Gillian: „Athens and Jerusalem: A Tale of Three Cities“. In: Austin/Sarat 1994 (see note [6]).

[44] See Irigaray 1992, 1993, 1994 (see note [16]).

[45] This is a criticism frequently voiced in relation to Catharine MacKinnon’s radical feminism (Toward a Feminist Theory of the State. Cambridge, Mass. 1989; for discussion of this aspect of MacKinnon’s work, see Wendy Brown: States of Injury: Power and Freedom in Late Modernity. Princeton, N.J. 1995.

[46] Hence it may be argued that, in the final analysis, such arguments re-essentialize sexual difference. See Valverde 1999 (see note [10]).

[47] For a defence of Irigaray as concerned with „remetaphorising the feminine“ as opposed to „describing women“, see Penelope Deutscher: Luce Irigaray’s Sexuate Rights and the Politics of Performativity (manuscript 1999).

[48] See Cover 1986 (see note [2] ).