Judith Butler: Ethics, Law, Politics

Elena Loizidou

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135309480
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The first to use Judith Butler's work as a reading of how the legal subject is formed, this book traces how Butler comes to the themes of ethics, law and politics analyzing their interrelation and explaining how they relate to Butler's question of how people can have more liveable and viable lives.

Acknowledging the potency and influence of Butler's 'concept' of gender as process, which occupies a well developed and well discussed position in current literature, Elena Loizidou argues that the possibility of people having more liveable and viable lives is articulated by Butler within the parameters of a sustained agonistic relationship between the three spheres of ethics, law and politics.

Suggesting that Butler's rounded understanding of the interrelationship of these three spheres will enable critical legal scholarship, as well as critical theory more generally, to consider how the question of life's unsustainable conditions can be rethought and redressed, this book is a key read for all students of legal ethics, political philosophy and social theory.

Chapter 1

---

Introduction

---

The public sphere is constituted in part by what can appear, and the regulation of the sphere of appearance is one way to establish what will count as reality, and what will not. It is also a way of establishing whose lives can be marked as lives, and whose deaths will count as deaths. Our capacity to feel and to apprehend hangs in the balance. But so, too, does the fate of the reality of certain lives and deaths as well as the ability to think critically and publicly…

(Butler, 2004a: xx–xi)

Judith Butler is the Maxine Elliot Professor in the Departments of Rhetoric and Comparative Literature at the University of Berkeley, California. Her work has exerted great influence in a variety of academic and extra-academic environments since the publication of her book Gender Trouble (1990, 1999a). Gender Trouble set out to question those understandings of gender, in which gender is seen to be based on sexual difference, consequentially only recognising masculinity and femininity. Butler showed instead how gender is a process, and not some essence that pre-exists a subject’s formation. As such, she introduced the concept of gender performativity into academia. The practice of gender performativity unveils the ways in which the above assumption prevents subjects outside the categories of femininity and masculinity from becoming culturally intelligible. Simultaneously, the notion and practice of gender performativity orients us to seeing that such preclusions and foreclosures reveal a certain resistance towards this totalising understanding of gender, thus enabling the possibility of so-called ‘abjected’subjects to become culturally intelligible.

To date, Gender Trouble sold something like more than 100,000 copies and in 1993 inspired the creation of a fanzine called Judy!.¹ To understand the success of the book on purely market grounds will of course give us a rather impoverished understanding of why her thought has been influential. Sales are indicators of some kind (and they matter to publishers) and while they might explain the desirability of an object at least at the moment of purchase, they do not explain an object’s afterlife. They fail, in other words, to account for how it triggers certain transformations or even, as exaggerated as it might sound, life itself. A friend conveyed to me how he first came across Gender Trouble: he found it lying discarded on a street in Amsterdam. We do not know whether the book has been dropped on the streets because the original owner found it unfathomable or because its carrying vessel was too overloaded causing it to fall out of it. The friend picked it up and began reading it, as the book had been frequently mentioned by his law professors in Australia but he had never before had the opportunity to read it. At an anecdotal level, his story captures the unreliability of sales as an index of how ideas get received, circulate and become influential.

The success of the book was also unexpected for Butler. As she writes, in its tenth Anniversary edition,

I did not know that the text would have as wide an audience as it has had, nor did I know that it would constitute a provocative ‘intervention’ in feminist theory or be cited as one of the founding texts of queer theory.

(1999a: vii)

But how then does she account for its success? ‘The life of a text has exceeded my intentions … that is surely in part the result of the changing context of its reception’ (1999a: vii). But this in itself cannot explain how it came to be so influential. It does, however, enable us to see that success and influence can be understood through the afterlife of a book. In order to understand how Gender Trouble had an afterlife and indeed succeeded in affecting so many academic fields and institutions,² we have to try to recognise both the direct or immediate contribution that its notion of gender as process has made and its more succinct intervention by problematising our living conditions.

It is thus Gender Trouble’s critique of the way in which understandings of the relationship between ‘life’ and the institutions that promote, regulate and sustain it, that guaranteed its entry into different academic fields and spheres of life. The book appeared at the time when US feminism was influenced by the work of Marxist feminists such as Andrea Dworkin and Catherine Mackinnon, as well as European feminist post-structuralist thought. Dworkin’s and Mackinnon’s writings focused on the exploitation of women and the collusion of the State in producing unequal relations. At the centre of their critique stood their demand for the recognition of women’s equality to men, one that would be enacted by the transformation of civil rights, criminal justice, employment, tort and contract law and other state-promoted institutions. Their diagnostic critique paid attention to the structures limiting women’s lives, like the State or the law, yet this critique paradoxically came at the expense of presenting women as passive hostages to these structures. To be fair, this representation of women was unintentional; the result of their Marxist theoretical background which does not allow to escape such a position. French post-structuralist feminism, initially a post-1968 ‘French’³ women’s movement, invested its energy in critiquing the ways in which the lives of women, and ‘woman’ more specifically, were negated, by utilising for example linguistics, psychoanalysis and philosophy. Through these analytical tools they exposed the disavowal of women from public life and language; ‘woman’ was represented as the other of man, as a creature whose role in life was identified with procreation, care and domestication. Luce Irigaray for example, in An Ethics of Sexual Difference (1993b), addresses the absence of the feminine in western philosophical texts, focusing in particular on Plato, Kant, Hegel and Lacan. I use Irigaray as an example but it is important to remember that post-structuralist feminism did not expose the erasure of the feminine from the symbolic and linguistic field in a unilateral way. The importance of the movement lay in offering a sophisticated critique of the socio-symbolic and linguistic sphere and in producing a set of ‘transformative’ strategies aimed at creating an alternative space for women. In taking the difference of women from men, and in particular their ‘sexual difference’, as their point of departure they made feminine subjectivity the very ground of their politics. The movement, unlike the Anglo-American one which hoped that the State would provide equality to women, articulated that a transformation of the lives of women would necessitate an understanding of their difference to men and would have to be wider than any State-imposed changes. It would require the engendering of a feminine language, affectivity and ‘symbolic’.

In taking to task Anglo-American and French post-structuralist feminism, Butler exposed the limits of their thought and politics. It is this intervention that explains in some way the success of Gender Trouble. Yet Butler was and still is also influenced by Foucault’s work. Gender Trouble relied on his understanding of power (juridical, disciplinary, bio-power) to unveil the short-cuts of Anglo-American feminism’s conception of power. In Discipline and Punish (1991a), Foucault addressed the misconceptions that Marxist thought had in relation to state power. Sovereign or juridical power (which we can loosely identify as power associated with the state in his vocabulary) was revealed as not being invested in transforming the lives of its subjects or citizens. On the contrary, sovereign power was seen by Foucault as being concerned with sustaining its own authority and territoriality. His genealogy of power explains this in more detail. Focusing on the sovereign’s right to take a life or let one live, Foucault argued that this right is exercised in order to sustain the sovereign’s authority and domination over subjects. It is therefore not concerned with the security and welfare of subjects. Foucault also identified two other modalities of power in his work namely disciplinary power and bio-power. These two modalities did not cause the disappearance of sovereign/juridical power in modernity; rather they became the more visible and potent modalities of regulating people and populations.

Through Foucault’s critique of sovereign/juridical power, Butler argues that the Anglo-American feminist movement had to become more critical of the operation of State power if it was to progress its political agenda. It was pertinent to reflect on the operation of sovereign/juridical power as well as to consider to what extent woman, the subject of feminism, is embedded in the other two modalities of power. She indicates how sovereign/juridical power is unable to promote women’s equality or encourage a wider political recognition of women’s issues, as its paramount concern lies with sustaining its own authority and not in promoting the welfare of its subjects. Still the essence of Butler’s critique is not just in pointing out the suicidal attachment that this feminist movement had to the State or the law, but also in enabling feminist thought, preoccupied with questions of power and domination, to consider a different way of articulating how subjects are formed. Butler considers how disciplinary practices enable our formation. For example, the naming (an iterative practice) of somebody as either a girl or a boy at birth, reveals that such naming reproduces certain normative preconceptions of what it means to be a boy or a girl. To put it differently, the naming disciplines us into the subjects that we become. Moreover, in contrast to sovereign/juridical power, disciplinary power is not located in one space or in the hands of the ruler, but it is to be found everywhere. This affects our formation as subjects. In Gender Trouble, she considers how disciplinary power forms subjects and in particular gender subjects. Through this move Butler offers at least two fathomable observations: (a) it alerts us to the possibility that we are not outside power and its formative force; and (b) that we ought to reflect on the ways in which we become the subjects that we are. In doing so we need to form a genealogy of the subject of feminism and ‘woman’, and pay attention to the ways in which language and power form it.

Her intervention introduced a refreshing perspective in feminist thought. Women were not any more to be viewed as passive, repressed by power and waiting for the regime of power to alter, recognise and ‘represent’ them in order to be able to transform their conditions of livability. But as subjects embedded in power or, to be more precise, as subjects being formed by power and language, it meant that women could resist the conditions of their formation. Her outlook presents us with an un-static and active relation to our lives (and its constitutive forms: power and language). It would be wrong, though, to assume that Gender Trouble offers a transformative political blueprint for feminism. On the contrary, the whole point of her critique is precisely to trouble the idea of a transformative politics characterised by a belief in redeeming and liberatory political agendas, and instead to offer a more complex understanding of power and our productive relation to it.

Her quarrel with French feminism is of a different kind, as the state is not central to it. As I have already mentioned they argued that women had been excluded from the socio-symbolic sphere, and constituted as the Other, and worked via different methods towards promoting a feminine subjectivity based on the concept of sexual difference. Gender Trouble explores the limits of ‘sexual difference’. To put it simply, the book argues that the marker of ‘sexual difference’ is grounded on a monolithic understanding of desire. Their genealogy did not account for those subjects whose lives could not be unilaterally encompassed within the ‘sexual difference’ marker, like those of gay men and lesbian women. ‘Sexual difference’ assumes that desire has always already been heterosexual. As a result gender becomes the cultural consequence of the male/female differentiation. Butler troubles this proposition and enables an understanding of gender, beyond the binary divisions of masculine and feminine that ‘French feminism’ offered.

The success of Gender Trouble is necessarily linked to the above critical interventions. But there is also another reason that, in my opinion, might explain the success of her work. In her critical account of these epistemologically different traditions, the first being based on Marxism and the other on post-structuralism, Butler synthesises a new way of approaching questions of formation, and especially of gender formation. This brought continental post-structuralist philosophy to the social concerns of the American feminist tradition. In the anniversary edition of the book, she alludes to this when she writes that her aim ‘was not to “apply” poststructuralism to feminism, but to subject those theories to a specific reformulation’ (1999: ix). Reformulation is inevitably concerned with the social issues dominating feminism. In critiquing both Anglo-American and French feminism, she sowed the seeds for the creation of a new academic discipline, namely queer studies. Queer studies found in Butler’s work its own philosophical/theoretical grounding, which enabled the new discipline to bring to post-structuralism its own social concerns, to rework Bulter’s own version of gender, expand it and ultimately criticise it (Eldeman, 2004; Prosser, 1998).

Gender Trouble was also the start of a series of related books by Butler herself. Gender Trouble had an afterlife. My narrative offers an explanation of its success based on her bringing together philosophical and social concerns. But at the same time it is worth mentioning that its subject matter and the way it was approached guaranteed this success. Gender Trouble puts life and its conditions of viability at its centre and provides a fresh outlook to the problems of life without offering the illusion that forms (identity) or institutions (state, law) could resolve them. The success of the book lays precisely in its interest in the unfinished and imperfect business of life and materiality. Putting life rather than gender as the subject matter of Gender Trouble might sound surprising, given that its analysis of gender formation seemed to have had the most impact in the academic world. Her reluctant endorsement of identity politics, or at least her troubling of the static-ness of identity discourses, however allows me to suggest that Gender Trouble is a book about the complexity of life, yet seen through the shades of gender. In dealing with the imperfection and unfinished state of life, Gender Trouble itself also unfolds these characteristics. Imperfection enables a space for potential investigation, for issues to be addressed later on, for an afterlife. In reflecting upon their earlier work, artists often refer to them as non-perfect or unfinished, whilst explaining that it is precisely ‘that’ that enabled them to continue producing works of art. Imperfection establishes precisely an afterlife of a work. It is the afterlife of Gender Trouble that Judith Butler: Ethics, Law, Politics is concerned with. As explained below, I take this book as a point of departure. I bring together Butler’s subsequent work with contemporary critical non-legal thought in order to think and imagine how her work and the questions she raises concerning life relate to those of critical legal studies.

Judith Butler: Ethics, Law, Politics acknowledges the potency and influence of Butler’s ‘concept’ of gender as process but instead of focusing on this, a well-developed, analysed and discussed position (see Chapter 6), it utilises the practice-based analysis of subject formation that she so incisively produced to excavate a different set of themes that are central to her work but have been less emphasised.

So what are these themes? The themes explicated in this book relate to Butler’s conceptual understanding of ethics, law, and politics and their interrelation. The book traces how she comes to these concepts. Her inquiry into these concepts is threaded together by one question: ‘How can we have more livable and viable lives?’ The question is neither rhetorical nor normative. She does not raise this question for mere reasons of effect, nor does she ask it in order to provide us with an answer to it. Instead I suggest that her work reflects upon the agonistic relation between these concepts in their articulation not only of life.

Each of these expressions of life – ethical, legal, political – emphasises particular practices and expresses different aspects or ways of life. If, for example, we focus on ethics and not moral philosophy, or, as I explain in Chapter 3, on ethical theories deriving from the work of the philosopher Levinas, we could say that the question of life is addressed in relation to our response to the Other who asks for our help. It necessitates an impulsive reaction, one that takes place before any subjective considerations kick in either to stop me from responding or to respond because of them. Ethics, or a response to a life in need, requires within this scope of thought a practice of responsibility prior to any egoistic considerations. One could even say that the parameters of an ethical and viable life have to be considered within this proposition. The legal approach to the question of life will focus on the practices of judgment and decision. An understanding of life here is one that is legitimised via the authority of law, which is ‘grounded’ or represents itself as ‘grounded’ on rational and legitimate rules. As individuals, we ought to follow the law and any infringement of the law is seen as a violation of the expression of life that law represents, and at the same time an error of judgment. Law, in such cases, interferes to correct this, to offer a judgment on the error, via either punitive or private sanctions. We could say that it intervenes to readjust the imbalance that was created in the spectrum of life, or the image of a happy life that it represents.

But, as is clear from the above, these two conceptual accounts of life express diametrically opposing views. An ethical life necessitates that we strip ourselves of any presupposed knowledge and act spontaneously towards the call for assistance, while the life that law accounts for is somehow a calculative life, a life that could only be sustained through a calculative response: a response that above all else requires a knowledge and reflection upon the law. Put differently, one expression of life puts at its centre, or envisages the subject of life, a spontaneous pre-reflective subject (ethical subject) and the other the precise opposite (legal subject). The asymmetry of their account of life, or their aspirations for life (and inevitably our involvement in this process), creates an antagonism, a warring between these spheres of life. As I explain here, Butler does not merely represent this state of affairs. In addition, she alerts us to the problems we encounter, when one of these accounts, or competing expressions of...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Table of cases and statute
• 1 Introduction
• 2 Gender performativity as method
• 3 Ethical sisters
• 4 Double law
• 5 The melancholic drag queen and its political potential
• 6 Butler’s reception
• Bibliography
• Index