Unspeakable Subjects: Feminist Essays in Legal and Social Theory

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What would a 'Nietzschean' view of self and world look like?

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On the one hand, the legitimating ideology of modern law — most obviously in purportly liberal-democratic systems — is founded on two aspirations. 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.

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. 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.

Unspeakable Subjects: Radical Possibilities | SpringerLink

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.

In recent postmodern and critical legal theory, there has been a marked focus on ethics. Another distinctive feature of this recent literature is its tendency to associate the ethical or the just with the feminine or with sexual difference. 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 feminine a 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.

Similar difficulties attend the use to which the concept of violence is being put on the other side of this theoretical coin. 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. 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.

Rather, it has to do with the nature of legal judgement and legal subjectivity.

Unspeakable Subjects

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. 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. 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.

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.

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? And how, if at all, do these utopian feminist projects relate to the tradition of reformist scholarship? 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.

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. 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. 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.

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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.

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. 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. 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.

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.

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.

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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. Nicola Lacey - - Routledge. Duff, Lindsay Farmer, S.

Alon Harel - - Criminal Law and Philosophy 10 3 The Territory of the Criminal Law. Abstraction in Context. Transformations: Recollective Imagination and Sexual Difference. Drucilla Cornell - - Routledge. Added to PP index Total views 2 1,, of 2,, Recent downloads 6 months 1 1,, of 2,, How can I increase my downloads? Sign in to use this feature.

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History of Western Philosophy.