Feminism, Aestheticism, Law

ANNE BARRON
FEMINISM, AESTHETICISM AND THE LIMITS OF LAW
ABSTRACT. This article seeks to identify and address the normative void that resides at the heart of postmodernist-feminist theory, and to propose a philosophical framework beyond postmodernism, but incorporating its central insights for thinking through the normative questions with which feminists are inevitably confronted in their engagements with positive law. Two varieties of postmodernist-feminism are identied and critically analysed: the corporeal feminism of Elizabeth Grosz and Judith Butler, which seeks to ground feminist critical practice in the irruptive capacities of the material body considered as an artefact of social construction; and the deconstructionist feminism of Drucilla Cornell, for whom the feminine is an indeterminate but disruptive force beyond its construction in law and in other social sites. The rst component of the argument elaborated here is that each of these approaches ultimately reduces to a form of aestheticism which is incapable of generating a worthwhile and workable feminist approach to the restructuring of politics and law. The second component of the argument involves a return to aesthetics, in particular to the philosophical aesthetics of Kants Critique of Judgement. Kants aesthetic philosophy, it will be suggested, yields a framework of concepts which, duly re-manipulated, could speak to the very concerns that have inspired postmodernistfeminism: how to attend to (bodily) particularity while avoiding the dangers associated with essentialism; and how to theorise the propensity of the unrepresentable power of the feminine to exceed both embodied human capacities and the conning rein of socially privileged rationalities. Crucially, however it also responds to a set of preoccupations those of the feminist lawyer that cannot be accommodated by postmodernism: how to translate embodied experience into (legal) norms; generalise from the particular; seek consensus; and codify an endless potentiality in the form of law. KEY WORDS: aesthetics, deconstruction, embodiment, genealogy, image, imaginary, negativity, postmodernism, psychoanalysis, universality
I NTRODUCTION This article is a response to what I consider to be a worrying lack of explicit and focused normative reection in much contemporary feminist theory. Feminism has been well and truly infected with the postmodernist disease: a radical distrust of anything that appears to serve as a universalising foundation for critical thought about politics or law, and a refusal to commit to determinate normative prescriptions for fear that these must necessarily appeal to the subjective essences or grand narratives that
Feminist Legal Studies 8: 275317, 2000. 2000 Kluwer Academic Publishers. Printed in the Netherlands.
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postmodernism is believed to have discredited beyond redemption. This postmodernist scepticism, it should be said, has not been entirely a bad thing for feminism, for it has fuelled a well-warranted antagonism both to the extant institutions of politics and law, and to the normative foundations notably reason, autonomy, and a conception of justice organised around the universal subject and its abstract rights that have been invoked to justify these institutions. Modern jurisprudence theorises law as freedomguaranteeing, and maintains that laws condition of possibility resides in the rational (male) will of the universal subject. Postmodernist legal theory, including postmodernist-feminist legal theory, imagines law to be founded on a repression of the desiring, embodied, particular (female) other, thus bringing into view what is excluded or denied in the elevation of this abstract reason as the source of laws authority. To draw attention to the repressive (in every sense) implications of the conceptions of reason/universality/subjectivity/right presupposed by existing political and legal arrangements is an entirely appropriate strategy within a feminist theory of politics and law. The difculty, however, is that the postmodernist denunciation of the repressive force embedded in these conceptions appears to extend to any and every conception of reason or the subject, every appeal to universality and every claim of right. Consequently, postmodernism seems to yield a wholly negative approach to politics which is corrosive not only of liberal political and legal norms, but in principle of every normative framework including that of feminism itself. A number of undesirable consequences have, in my view, owed from the ascendancy of this postmodernist negativity in feminist thinking. Its most obvious manifestation is a palpable reluctance on the part of feminists now to formulate political programmes or proposals for legal reform that purport to articulate the interests and needs of women in general for fear of essentialising the feminine in the process of doing so. Clearly, there are good reasons for building the feminist movement on as broad a base as possible, and so for eschewing a narrow or exclusionary characterisation of the Woman at its centre that would privilege the needs and aspirations of white, bourgeois, heterosexual, able-bodied women at the expense of others. But these ethical and strategic concerns could not account for the utter paralysis of political reection that the spectre of essentialism appears to have induced in the work of many feminist theorists at the present time, and it seems to me, rather, that this new quietism is in large part attributable to the theoretical frameworks that postmodernisms hegemony within the academy has driven feminists to adopt. Broadly speaking, these frameworks including especially Foucaultian genealogy,
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Lacanian psychoanalysis and Derridean deconstruction converge around an account of sexed identities not as pre-discursive essences, but as effects of discourse. Further, discourse the stable order of cultural representations is imagined here as itself the effect of processes of exclusion and repression: processes which also, in the same moment, produce an other scene of identities and meanings that cannot be signied within the dominant order, but that continually return to disrupt and undermine it. Guided by this understanding of the production of subjectivity and the status of meaning, postmodernist-feminism takes its primary task to be that of excavating the dynamic of repression-and-return that generates both an appearance of the stability and given-ness of sexed identities, and the possibility of resistance to them. Its questions, therefore, are primarily how questions oriented towards investigating what has been repressed in the constitution of both man and woman, and tracking the symptoms of the return of this repressed other-ness in various manifestations of subversive femininity. Indeed in some strands of postmodernist-feminist thinking, it has become fashionable to insist that the feminine cannot be represented at all, and can only manifest itself as a dispersed and uctuating force of disruption within the symbolic order. What is of interest to postmodernist-feminism, then, is not at all the essence of Woman, but how a particular construction of sexed subjectivity is able to pose as an essence: what erasures and exclusions sustain this construction as natural, authentic and inevitable. Not even the material body has proved immune from this kind of analysis. Within some feminist literatures, as is well known, femininity itself has been equated with specically female anatomical capacities reproduction and nurturing in particular and the latter appealed to as a grounding for an alternative ethical order of care and responsibility. In the work of a contemporary theorist like Judith Butler, however, the body and its capacities are no less constructs of discourse for being apparently material: matter itself must be deconstructed, and to deconstruct matter is, once again, to interrogate the exclusionary operations which . . . delimit it (Butler, 1993, p. 29).1 Yet interesting though this kind of procedure often is, it cannot generate the ought propositions characteristic of normative thinking. While acknowledging that resistance is the inevitable consequence of the exclusionary operations that produce constructions of Woman masquer1 Through this manouevre, Butler attempts to displace the terms of a debate in which the sexed specicity of the female body gures as the ground and authorisation of feminist critical practice: how and why, she asks, has materiality become the sign of irreducibility, and what kinds of constructions are foreclosed through the guring of this site as outside or beneath construction itself? (Butler, 1993, p. 28).
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ading as essences, the framework of postmodernist-feminist thought cannot prioritise particular features of these constructions as more worthy of resistance than others, nor can it give reasons for resistance in general. It cannot even state that resistance is absolutely opposed to repression, because its analysis of repression shows that the other which resists is actually an effect of this repression, and could not therefore be a radical alternative to it. There is no ultimate escape, this feminism says, from the structures of power which have made us what we are: even the outside is a constitutive outside, its subversive potential given, if not quite choreographed, by the very regulatory schemes it would disrupt. Because this potential is given, subversion is indeed inevitable, but this feminism can only predict that it will happen, never recommend the precise form it should take: hence its characteristic stance is one of observing the contours of political struggle as it occurs rather than prescribing in advance what these should be. The modes of political struggle that emerge into view under this postmodernist-feminist gaze appear, moreover, frustratingly tiny and inconsequential to the eye of one interested in large-scale social and political change: local resistances; parodic performances by individuals of the gender roles assigned to them; small recongurations of the reiterative practices through which the dominant system of meaning is sustained. No mass movement of women can be envisaged from this perspective, for that would invoke the dreaded essence it has become so fashionable to denounce. Even more obviously, no programme of sustained feminist engagement with the institutions of state is conceivable from this point of view. To advance political demands would necessarily require a relatively stable conception of the woman in whose name those demands were being made; and to succeed in having those demands encoded in the form of law would x and institutionalise that conception, thereby generating a legal essence of woman which can only prompt the same debilitating array of anxious postmodernist interrogations all over again: How has this essence become possible? What feminine other has been excluded and denied in the process of its construction? What subversions will this other effect against the repressive signications which have produced her . . . ? It seems to me that feminist theory in general has become dazed and confused by the endless deferrals forced upon it by the framework of postmodernist thinking. But for feminist legal theory, this loss of focus is particularly problematic. As feminists who are also lawyers, we need to tailor our theoretical frameworks to the specicities of the institution with which we are primarily engaged: that of law. Law is not literature, or art, or poetry, or even primarily a system of meaning, though it verges on posi-
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tivist heresy now to point this out. Law is a system of prescriptions which performs a particular function and is oriented towards a particular conception of legitimacy. Its function is to stabilise expectations and imbue social interactions with a degree of patterning and predictability; its legitimacy resides in the conformity of its prescriptions to a conception of justice which is necessarily given that law prescribes for all of us universalistic. To register in law at all, therefore, a claim must be both determinate enough to be clothed in the form of a right that can be enforced and observed, and amenable to universalisation by reference to some conception of justice. These limits on what law is and does, and what validates its existence, must be taken into account by those feminist legal theorists who wish to remain legal theorists. Yet they cannot be accounted for within a postmodernist framework that links determinacy to the essentialising of (sexual) difference and universality to its forcible elimination, and so rules out determinate and universalistic claims as hopelessly compromised by different but related modalities of repression.2 Does the inadequacy of postmodernist theory then necessitate that feminist legal theorists should give up theory, and resign ourselves to a strategy of pragmatic engagement with positive law? Emphatically not. Theory is an indispensable intellectual space in which to reect on and formulate feminist demands, but to be usable by feminist lawyers it must be capable of attending to the twin necessities of universalising those demands, and producing determinate expressions of them. My argument in this paper thus contains two broad components. The rst is a critique of those theoretical frameworks which fail to attend to one or other of these limiting conditions of legal feminism, on the ground that they cannot generate the kinds of normative propositions that feminists need to advance in order to engage effectively and progressively with the institution of law. What animates this critique is a pragmatic acknowledgement of the necessary constraints imposed on feminist practice by the limits of the legal institution, constraints which do not operate in other cultural contexts where a more expansive conception of that practice might well be feasible. Thus on the one hand, the necessity of an appeal to universality in feminist encounters with the legal system would seem to militate against any theoretical framework which seeks to derive a politics from the given specicities (whether given by biological reality or processes of social construction) of the sexed body or of the contexts of womens lives the various essentialisms condemned so roundly by postmodernism
2 For a sustained commentary on postmodernisms failure to produce a positive juris-
prudence, that is, a normative theory of right and justice which can be used as a framework for deciding cases and enacting statutes, see Litowitz (1997, p. 5).
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for these are too particular, too local, and too marked by their implication in the machinations of power to be normatively compelling.3 On the other hand, the need for determinate articulation of claims would seem to rule out any theoretical framework that proceeds from a notion of the feminine as indeterminate, a disruptive but indescribable force outside discourse the postmodernist answer to essentialism for this by denition always remains beyond accommodation (Cornell, 1991) by the concessions, however well-intentioned, through which the system would seek to respond to and manage it. In the rst of these frameworks, it is the real (biologically given or socially constructed) body which serves as a grounding for feminist critical practice; in the second, the feminine as a repressed (thus by analogy with psychoanalysis unconscious) force of disruption beyond the real. Each of these frameworks, I will argue, produces a form of aestheticism which is incapable of generating a worthwhile and workable feminist approach to the restructuring of politics or law, however appropriate either or both may be in a context of feminist engagement with other cultural phenomena and institutions. To illustrate what I argue is the impoverishment of feminist theorys capacity to prescribe convincingly for law through its association with these versions of aestheticism, I turn the focus of the paper in Parts I and II towards two themes the body and the image explicitly invoked by two male theorists, respectively to reactivate aesthetics as the basis for a politics (the project of Terry Eagleton), and to revive the problematic of an aesthetic of law (Peter Goodrich). There are, I will argue, two specic and related problems with Eagletons and Goodrichs work around these themes, problems which appear also in the aesthetic-feminisms mentioned above. The rst problem arises from the tendency to equivocation that pervades this work, a tendency that serves only to subvert the evident concern of both authors to re-launch aesthetics as a theoretical basis for a radical critique of the liberal political system and its laws. Two contradictory moves produce this tendency: rst, a repudiation of the rationality underpinning the dominant political and legal culture and which the aesthetic in turn is said to sustain as entirely lacking any claim to normative validity; second, the re-siting of the normative foundation of
3 Even where, as in the work of Luce Irigiray, the appeal to biological essence is strategic and knowingly metaphorical, its translation into the institutional xities of legal rights to virginity, motherhood by choice, preferential guardianship of children and caring for the home (Irigiray, 1994, p. 81) presents very obvious difculties. Thus Nicola Lacey, writing from the perspective of a feminist lawyer, has noted that Irigiray is more persuasive in her poetic and speculative than in her political-institutional mode (Lacey, 1995, p. 35) and that her argument for special rights for women provides neither a compelling image of difference nor a comprehensible political strategy (ibid., p. 36).
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politics and law in that which refuses and undermines this rationality: that is to say once again the aesthetic. The rst move identies the body and the image as bound up with the dominant ideology (Eagleton) or an imaginary structure of belonging (Goodrich, 1991, p. 250): a system of representation which is determinate (because xed in law, amongst other institutions) but entirely evacuated of normative authority. Move two, by contrast, gures the body and the image as repositories of an unconscious energy which (because it disrupts the dominant ideology, or the legal imaginary) is deemed by these writers to be both ethical and just. The second problem here, however, is that this alternative normative foundation turns out to be incapable of generating the radical rethinking of politics and law that these theorists purport to want. Instead, what both perspectives ultimately offer are forms of aestheticism which, whatever else might divide them, share the unfortunate characteristic of being both politically reactionary and philosophically regressive. Eagletons aestheticism yields an account of politics as a kind of superstructure, underpinned by a base of bodily needs and desires which in his view have the inherent potential to resist the domesticating force of the dominant ideology; many so-called essentialist feminisms reproduce several of the features of Eagletons account. Goodrichs aestheticism, on the other hand, yields a postmodernist account of law in which the image gures as laws amorphous repressed other, continually returning to sabotage the legal systems claim to rational authority; postmodernist-feminisms guring of the feminine as a subversive potential, banished to the outside of discourse, but haunting its borders, mirrors this approach. Yet the celebration of a given substrate of embodied life (whether biological or socially constructed) is both inherently conservative and wedded to a philosophical position perilously close to that of Thomas Aquinas not a thinker noted for his feminist sympathies. Goodrichs image or the feminine Other, meanwhile, is nothing more than an indescribable indeterminacy subsisting in a utopian universe that remains always necessarily outside the real. As such, it is a pure potential for subversion that recommends no particular alteration to the actually existing contours of the legal institution, and commits its proponents to a metaphysics of absence just as problematic as the metaphysics of presence they would wish to subvert. The rst component of my argument, then, is that these (feminist and non-feminist) versions of aestheticism have so far run into a series of dead ends insofar as they purport to say anything normative about the conduct of politics or the critique of law. In its deconstructive mode, the aesthetic attack on the rationality that justies the state and its laws reduces to a wholly negative diagnosis of these institutions as hopelessly
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dependent on the very forces that they repress, and hopelessly vulnerable to the continual return of these forces as saboteurs of their pretensions to universal authority. In its reconstructive mode, this supposedly postEnlightenment anti-rationalism simply reverses the familiar dichotomies of Enlightened thought: valorising the underprivileged term, nding in the body or the unconscious an alternative basis for justice, but eschewing the task of explaining why the norms emerging from the body or the unconscious if indeed these can be coherently identied could have any claim to universal authority in their turn. In the absence of such an explanation, these attempts at normative reconstruction yield only two alternatives that are equally useless in realising the radical ambitions that apparently inspire them. Eagleton, and feminist body-theorists, recommend an appeal to the particularities of bodily experience which cannot be generalised as a legitimate political demand or claim of legal right, while Goodrich, and theorists of a feminine imaginary, invoke a disruptive energy which is beyond all possible experience and so by denition refuses reduction to a determinate political demand or claim of legal right. Despite the limitations of these aesthetic approaches for a feminist theory of law, it seems to me that a feminist theory of law must seek nonetheless to accommodate the insights that inspire them: insights that connect woman with particularity, embodiment, context, and yet also with subversion, ux and innite productivity. Thus a feminist-legal theory would be one which could hold the binary opposites of law and the feminine universality and particularity; determinacy and indeterminacy in a relation of tense coexistence, rather than privileging the logic of one over the other. It is for this reason that the second component of my argument in this paper involves a return to aesthetics, and in particular to the philosophical aesthetics of Kants Critique of Judgement. Kants explanation of aesthetic response in the third Critique suggests an approach which could think the coexistence of law and its other: which could, in other words, theorise the relationship between these as one of tension and mutual provocation rather than one of authority and subordination or stability and disruption. Further, Kants account of aesthetic judgement offers a framework which could both account for laws necessary determinacy and make the case for its orientation to an other, deferred, justice: a framework which owns up to the need for claims of legal right to be both universalisable and determinate, but conditions this, not on a priori principles, but on the possibility of a consensus which is provisional, fallible, and premised on a conception of the political community as inhabited by embodied rather than purely willing subjects.
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In arguing for a return to Kants aesthetics, I am of course explicitly recommending a return to a philosophical tradition that has been the object of the most virulent postmodernist antipathy, and calling for a recognition of the failure of this antipathy to produce answers to the questions that it has rightly placed at the forefront of academic debate.4 Feminist hostility to Kantianism in particular and more generally to the philosophical tradition he inaugurated is entirely understandable, not least because it has come to be regarded as the source of some of the most arid, complacent and unreective insights of male-stream jurisprudence. It was Kant, after all, who in his second Critique (Kant, 1788) attempted to ground the liberal state in a conception of justice presupposing a universal human faculty of reason dened by its sovereignty over what Kant often describes in this context as the pathological, cancerous or animalistic determinants of action: passions; affects; sensible inclinations; everything, in short, associated with (female) corporeality, desire and imagination. Yet my argument is that there exists another interpretation of Kants philosophical project albeit one at which Kant himself would most certainly have balked that speaks eloquently to the preoccupations of feminism and is available to be retrieved from the icy grip of male jurisprudence. In pursuing this other Kantianism, therefore, I have in the words of Elizabeth Grosz
refused to simply abandon [the ground of male philosophy] to the men who rst claimed it; and I have refused to labour on it, to look after it, to tend it with respect and reverence, as women are usually expected to do. I have, however tried to use this terrain to bear products that its proprietors may not be happy with and that may threaten to reshape that land in terms which contest this proprietary relation (Grosz, 1994, p. xiv).
P RELUDE : W HAT I S A ESTHETICS ? The emergence of the modern understanding of the aesthetic It will become clear in Part III that Kants own use of the category of the aesthetic departs radically in many crucial respects from the use made of it by the theorists I am about to consider. It might therefore be useful to preface the discussion which follows with a brief survey of some of the many extant meanings that proliferate around this term, for the aesthetic, it must be said, supports a plurality of interpretations. That which currently poses as the dominant meaning is best seen as the effect of a merger, in the
4 In doing so, I am in one sense disavowing the theoretical commitments implicit in some of my earlier work: see e.g. Barron (1990, 1992, 1993). Only in one sense, however, because the concerns underlying those commitments can, as I hope to show, be more effectively accommodated within a re-worked Kantian philosophical framework.
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eighteenth century, of discourses pertaining to art or the arts, aisthesis or judgements of sense, and beauty or taste that had hitherto occupied more or less separate intellectual elds, and the reception of this new hybrid as a tting object of philosophical investigation. Simultaneously and this is the particular achievement of Kants Critique of Judgement the aesthetic, as a philosophical category, came to occupy its own conceptual territory and to be elaborated in terms of a discrete vocabulary which was quite distinct from that deemed proper to the understanding of both cognition (theoretical reason) and morality (practical reason), spheres with which it had previously been understood to be intimately linked. Since then, the consolidation of the Anglo-American analytic tradition in philosophy has privileged one meaning of the term: for this tradition, aesthetics is rst and foremost a discourse about the kind of experience involved in the practice of responding to art. Yet all of the elements that combined to form the category in the rst place remain present in this analytic interpretation, for on the orthodox reading of Kants third Critique not since fundamentally contested by analytic philosophy aesthetic experience is prompted by an object of sensory perception (e.g. an object of sight or hearing); accessed through the faculty of taste; registered by means of an ineffable feeling of pleasure; and attributed to a quality (beauty) that is supposed to inhere in the object or event occasioning that feeling. For my purposes here, two interesting distinctions are crucial even to this orthodox understanding of the nature of aesthetic experience. First, an aesthetic response to an object is conceived to be of a qualitatively different character to the kind of process involved in acquiring knowledge of the object or making a moral determination in relation to it. To say of a particular object this is a rose, for example, is to make a cognitive judgement about it which proceeds by bringing the object within the genus rose and thus subsuming its many particular characteristics under a single general concept. This operation is necessarily reductive: the diversity of impressions made upon the viewer by the object becomes, as it were, killed off in classifying the object as a mere instance of a type, for the focus that permits the judgement is upon that which makes this object the same as all other objects that are conceptualised as roses. To say of the object this is beautiful, however, is to attend precisely to the particularity of the object this (whatever it is) is beautiful and so to eschew reductive conceptualisation in favour of a response which indulges and entertains its irreducible specicity: a response, therefore, which is affective rather than cognitive. But second, this kind of response is also distinguishable from one which merely registers a sensation, even a pleasurable one: to judge an object beautiful is not the same as saying this object pleases
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my senses. True, every aesthetic response proceeds in the rst instance from an encounter with an object of sensation. Judgements of beauty, however, are reserved for those encounters which prompt something other or more than a sensation a feeling which is both ineffable (because preor non-conceptual), and disengaged from any appreciation of the objects instrumental usefulness, whether for satiating ones sensory demands or for any other purpose. In other words, it is the disinterested contemplation of an object solely in relation to its form and independent of any purpose it might serve, be it objective conformity to some concept or subjective gratication of the senses, that makes possible a judgement of beauty. Perhaps because it is so obviously linked to conservative conceptions of gender, the notion of beauty has alienated feminist art theorists, put off by its evident associations, in Kants own thought, with an ideal of femininity emphasising qualities such as grace, form, charm and domestication (Battersby, 1995). The allegation of gender-specicity could also be raised in relation to the second component of Kants aesthetic theory: the analytic of the sublime. For Kant, the sublime is also experienced as feeling, but now a feeling of negative pleasure (Kant, 1987, p. 98), occasioned by an exceedingly large natural object which the imagination cannot capture in one apprehension, or an overwhelmingly powerful natural phenomenon (Kant refers to mighty waterfalls and devastating volcanoes) that dwarfs the human capacity for resistance. To the extent that it pays attention to this aspect of Kants aesthetics at all, analytic philosophy reads the sublime feeling as a feeling of admiration or respect, directed not at that which in nature engulfs and overpowers the subject, but resulting, rather, from an awareness of the supersensible faculty of reason as superior to nature: reason can think the totality in response to the suggestion of innity in nature and can legislate for the will in response to the suggestion of irresistible might in nature. On this view, then, the feeling of sublimity arises from a palpable experience of the triumph of autonomous reason, and since the latter is the very agency of moral action is especially apt to dramatise the sovereignty of the will and so induce a respect for the moral law based upon it (Guyer, 1996). Yet as Christine Battersby has shown, Kants account of the experience of the sublime is quite evidently gendered as male: sublime pleasure is closed off to all except the moral man who has been educated into condence in the power of his own ego over nature (Battersby, 1995, p. 233). Nonetheless, my argument in Part III below will be that Kants aesthetic philosophy can be re-appropriated for feminist legal theory. This will seem odd for two reasons. The rst has already been adverted to: Kant himself was no feminist, and entertained a deeply conservative under-
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standing of the proper relationship between the sexes which emerges between the lines of the Critique of Judgement itself. The second is that the aesthetic philosophy enunciated in this text ostensibly has nothing to do with Kants practical (legal/moral) philosophy at all: indeed his entire Critical project is premised upon the assumption that aesthetic, cognitive and moral propositions are conceptually distinct. Taken together, these two objections make the attempt to recuperate the Critique of Judgement for a feminist philosophy of law seem like a perilous undertaking. I am by no means the rst feminist, however, to see some interesting possibilities in the Kantian Critical scheme. Christine Battersby, for example, though acknowledging that Kants universe is not a space in which a feminist can move freely, argues that it can and should be reorganised, its divisions and distinctions re-arranged to produce a woman-centred philosophy (ibid., p. 105; Battersby, 1998). There are precedents, too, for re-working all or some of the elements of Kants aesthetics towards an understanding of politics that addresses and advances the critique of the Enlightenment framework of political and legal thought that Kant himself was instrumental in bringing about (Adorno, 1997; Arendt, 1982; Bernstein, 1992; Lyotard and Thbaud, 1985). Both of these tendencies will be reected in the analysis presented in Part III below. First, however, consideration must be given to two other interpretations of the aesthetic which feature prominently in the work of the authors who form the focus of Parts I and II. The category of the aesthetic in cultural theory and continental philosophy To the extent that those working within the elds of cultural theory and Continental philosophy have made use of the category of the aesthetic at all, they have tended, as I have explained elsewhere (Barron, 2000a), to dis-aggregate the elements constituting the received modern understanding of the category, placing the emphasis on one element in the mix over the others or re-conguring the relationship between them so as to render the aesthetic relevant to their own preoccupations. In general, cultural theorists have deployed the aesthetic against a hitherto dominant conception of culture as the production (or undoing) of meaning, and have thereby (wittingly or otherwise) retrieved the idea that lies at the heart of Kants explanation of aesthetic response: that the category of the aesthetic picks out an experience and an order of value that is irreducible to the terms of representation (Melville and Readings, 1995, p. 11). Alongside this general understanding of the aesthetic as that which is ultimately unassimilable to conceptuality, cultural theory has of course recently discovered
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the body to be a key site of identity formation and a possible basis of resistance to the signifying forces through which subjectivity is moulded and organised. The connection between this new corporealism in cultural theory and the Aristotelian notion of aisthesis as sensory perception is evident, and is explicitly forged in the proposition with which Terry Eagleton commences his The Ideology of the Aesthetic: that aesthetics is not so much a discourse about art as a discourse of the body (Eagleton, 1990, p. 13). By forging this connection, Eagleton hopes to appropriate aesthetics for the project that has dominated debates around the body in cultural theory generally: how to uncover the hidden complicity between corporeal experience and the effects of power without reducing the former to the latter, and how to theorise that excess in embodied human life that subsists beyond power while simultaneously avoiding a lapse either into biologism or a kind of transcendentalism of the body. Bizarrely, Eagleton makes no reference at all in his work on aesthetics to any feminist theorist, or to any of the parallel debates in feminist theory, although feminists have also tended to place the body at the centre of theoretical attention and have long grappled with the very dilemmas he confronts. Nonetheless, my argument in Part I, as I have hinted already, will be that neither Eagletons aestheticism nor the various extant corporeal feminisms have provided satisfactory responses to these dilemmas: all have yielded philosophical positions which are intellectually untenable and all carry unpalatable political implications. However the reason why Eagleton at least is unreective about his philosophical commitments is that his treatment of the aesthetic is quite deliberately not structured by the conventions of philosophical argument or driven by a concern to re-think the boundaries of the category in philosophical terms. Peter Goodrich and Drucilla Cornell, on the other hand, take most of their theoretical cues from a corpus of contemporary French theory which is self-consciously philosophical, to the extent that it engages primarily with the texts and arguments that constitute the Western philosophical tradition. This tradition has also given a new spin to the discourse of aesthetics by fore-grounding those of its elements most appropriate to its own concerns. The current of thought to which I am referring here is that constituted by the writings of such authors as Georges Bataille, Jacques Derrida, Jean-Luc Nancy, Jean-Francois Lyotard and Gilles Deleuze, all of whom (whatever else might divide them) have from time to time relied on aesthetic categories to express the distinction between the process of normative and conceptual calculation and what may be described as the incalculable (Beardsworth, 1996, p. xiii; Habermas, 1996). From their perspective, no less than that of cultural theory, the experience that
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aesthetics attempt to theorise cannot be designated a mere matter of taste; nor can it be reduced to that pleasure which results from an encounter with art; nor can it be accounted for by reference to a term as tame and domesticated as beauty has now become. Instead, the aesthetic is understood by these writers as a shorthand for the ineffable tout court, albeit sometimes conjoined with an account of the latter as rooted in or accessible through bodily or affective states.5 Hence, in this intellectual context, the aesthetic points towards what cannot be grasped by applying a concept, or produced by following a rule; a negativity that resists the rationality characteristic of cognitive and moral-practical (including legal) processes. It is for this reason that this tradition emphasises sublimity, rather than beauty, as a paradigmatically aesthetic form of experience. In the hands of these French philosophers, however, sublimity is presented as in effect de-sublimated: the emphasis, that is, is upon the (negative) moment of undoing that precedes that of the selfs redemption through reason. It is this reinvention of the aesthetic as a catch-all for the other of knowledge or will that reason denies but still requires, or for that experience of an ungraspable beyond which, in disorienting the senses, unravels the self in a way that exceeds recuperation by reason which, hitched to the currently fashionable methodological project of psychoanalysis, appears to be the major inspiration behind Goodrichs use of the category. In his work, the forging of connections between law and aesthetics has been achieved through a reliance upon the notion of image, which he now regularly and enthusiastically propounds as a category through which to deconstruct the boundaries of the [legal] text and so revive the problematic of an aesthetic of law (Goodrich, 1991, p. 250). Although Goodrichs work around this theme is confused and incoherent, he ultimately commits himself to an understanding of the image as an indenite creative possibility within the legal text (by which he presumably means laws system of representation, or in Eagletons terms, its ideology), and so to a recognisably French understanding of the aesthetic as pertaining to a disruptive force of negative energy. Again, there are parallels between this aestheticism and some versions of feminism. Deconstructionist-feminism invokes the feminine, not as an experience of material embodiment, but
5 Georges Batailles limit experience is exemplary in this regard, for it refers to an alien, overwhelming force which touches the subject at moments of extreme ecstasy, horror, pain, risk, disgust, and in other states of excess. The body here gures in its capacity to register something that tears the subject apart, disarms predictable patterns of thinking and feeling, and gives access to an impossible realm beyond lived experience, the reality lived and ordered by systems of discourse and practice: what is emphasised here is not pleasure but convulsion and dissolution, or in Lacanian terms, jouissance. See e.g. the essays collected in Bataille (1985).
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as that which is other and irreducibly other, to any of the denitions imposed by patriarchy (Cornell, 1992, p. 134). This feminism which is clearly reected in the work of Drucilla Cornell therefore also focuses on that excess which is beyond representation by the discursive systems that sustain the gender hierarchy, and so ts with a French aestheticism celebrating the disruptive power of diffrance. Yet this romance of a creative possibility or feminine difference venir reduces in the end, as I aim to show, to nothing more than a principle of indeterminacy which is normatively agnostic and politically inexpressible. As will become clearer in Part III, the shifts of meaning forced upon the category of the aesthetic under the inuence of both cultural theory and contemporary French philosophy have been achieved by disregarding or undermining important elements of Kants conceptual vocabulary, at considerable cost to the potential of the category to re-invigorate critical, including feminist, thought about law. In saying this, I am by no means arguing for slavish delity to Kants authorial intentions. The suggestion, rather, is that Kant should neither be discarded nor obeyed, but re-written. Kants aesthetic philosophy, that is to say, yields a framework of concepts which, duly re-manipulated, could speak to the very concerns which have inspired postmodernist-feminism: how to attend to (bodily) particularity while avoiding the dangers associated with essentialism; and how to theorise the propensity of the unrepresentable power of the feminine to exceed both embodied human capacities and the conning rein of (male) reason. Crucially, however it also responds to a set of preoccupations those of the feminist lawyer that cannot be accommodated by postmodernism: how to translate embodied experience into (legal) norms; generalise from the particular; seek consensus; and codify an endless potentiality in the form of law. PART I: A ESTHETICS , F EMINISM B ODY-P OLITICS
AND
In the rst section of this Part, I consider Terry Eagletons attempt to reactivate aesthetics as a discourse of the body (Eagleton, 1990, p. 13) through an amalgamation of Marxian ideology-critique and Freudian psychoanalysis. Eagletons contribution on this front merits careful attention, not least because it has been largely responsible for the qualied resurrection of aesthetics within cultural studies in recent years as a general term for that which pertains to corporeality, desire and the realm of the senses, and as a conceptual framework through which to analyze how this realm is connected with structures of social power, including not only the positive legal institution but more broadly the dominant ideology; the
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order of culture; the symbolic law. In Eagletons work, however, it is the body in its literal materiality that is proposed as a possible foundation for an ethics and a politics; and aesthetics now presented as a predictably gritty discourse of affections and aversions, of how the world strikes the body on its sensory surfaces, of that which takes root in the gaze and the guts and all that arises from our most banal, biological insertion into the world (Eagleton, 1992, p. 19) that is championed as a language which could articulate the nature of lived bodily experience and the norms which arise therefrom. In the second section of this Part, I focus on the corporeal feminism of Elizabeth Grosz and Judith Butler. This feminism, I argue, moves beyond the biologism that is evident in Eagletons aesthetic theory, and in essentialist feminisms that ground their analysis in a conception of the female body as a natural given, by invoking Michel Foucaults genealogical method to account for the body as an artefact of normalising practices of cultural inscription. Nonetheless, in attempting to reconcile the positivism of this method with the urge to reect normatively upon the available forms of sexed subjectivity, this feminism ends up in a series of impasses that are resolved only by lapsing into Foucaults own version of aestheticism: a project of artistic, inventive transguration of the (sexed) self that is difcult to distinguish from narcissism. Eagletons aesthetics: A discourse of the (male?) body For Eagleton, aesthetic experience is an eminently contradictory phenomenon (Eagleton, 1990, p. 3): simultaneously the arena in which the dominant ideology takes hold of and moulds the subjects feelings, tastes and emotions the very responses, that is, that seem most immediate and innate to a shape appropriate to the requirements of the capitalist social order, and a site of potential resistance to the reied social relations generated by capitalism. Thus on the one hand, the aesthetic tradition in German rationalist thought is, for Eagleton, an elaborate recipe for the inscription of bourgeois manners on the body and in the affects of the individual subject. To the extent that this inscription is successfully implemented, aesthetic experience, despite its appearance of purity and spontaneity, is nothing other than ruling class ideology materialised (and masquerading) as taste: when moral-ideological imperatives no longer impose themselves with the leaden weight of some Kantian Ought but inltrate the very textures of lived experience as tact and know-how, intuitive good sense or inbred decorum (Eagleton, 1992, p. 20), structures of class power become misrecognised, and thereby naturalised, as structures of feeling (ibid., p. 21). Yet on the other hand something can be rescued from this otherwise somewhat disreputable current of bourgeois thought
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(ibid., p. 29) for a Marxist analysis of culture. As well as providing at the very heart of Enlightenment, the most powerful available critique of bourgeois possessive individualism and appetitive egoism (ibid.) aesthetic discourse, because it openly acknowledges the sensate determinants of human action, is compatible with a materialist account of consciousness, ethics and politics. If the consciousness that bourgeois ideology takes as given is that of the sovereign individual, able to transcend its empirical determinations through the faculty of reason, then a materialist alternative would have to think everything through again . . . from the standpoint of the body itself . . . rather than the body incorporated into a reason which is always already in place (Eagleton, 1990, pp. 196197). What if it were possible, Eagleton asks, to retrace ones steps and reconstruct everything ethics, history, politics, rationality from a bodily foundation? (ibid., p. 197). Quite apart from the question of the capacity of his reconstruction to compel conviction as to which more below it is difcult to extract from Eagletons work a coherent account of what exactly constitutes the bodily foundation in terms of which this new materialism is to be elaborated. Often he renders it in straightforwardly sensationalist terms as the whole of our sensate life (ibid., p. 13), including bodily habits/inclinations, pleasures and drives, passions, energies, appetites, spontaneous reexes, instinctual responses, or the esh; or occasionally as the unconscious desires that manifest themselves in these bodily impulses. Sometimes it is less the somatic than the affective that is emphasised: compassion, feelings, empathetic imagination, sentiment. Occasionally, too, Eagleton employs the notion of the aesthetic as a by-word simply for experience; elsewhere, with yet another twist, as connoting particularity or the concrete. Ultimately, though, Eagletons theorisation of bodily experience turns into an attempt to marry the theoretical programmes of Marx and Freud within a materialism that can accommodate both the givenness of human nature and the instability with which this nature is borne: a materialism which is an aesthetics, in Eagletons very broad sense of the term, in that it attends both to the forms of sensory fulllment that underpin the physical survival of the human animal and, beyond this, to the pleasureseeking urges that threaten/promise to put it in contradiction with itself. Hence Eagletons bodily foundation is an amalgam of needs and desires which, though not rigidly unalterable, is not innitely plastic either: the rational will is to be understood as a superstructural effect of these bodily forces. If the human animal is able to go beyond, make something creative and unpredictable of what makes it (ibid., p. 409), nonetheless
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such creative self-making is carried out within given limits, which are nally those of the body itself (ibid., p. 410). Clearly, what Eagleton is attempting to negotiate here is the relation between the body as a material given and the locus of a capacity to go beyond its given-ness. Yet his proposed route out of this conundrum turns out to be an understanding of need/desire which exceeds its ideological role as a power-effect only insofar as it is a biological function. At times he suggests that the emancipatory potential of desire is inextricably tied to its political uses as an effect of powers subtle invasions of the body: To lend . . . signicance to bodily pleasures and drives . . . if only for the purpose of colonising them more efciently, is always to risk foregrounding and intensifying them beyond ones control (ibid., p. 28). Elsewhere, however, Eagleton surmises that there is something in the body which can revolt against the power which inscribes it (ibid., emphasis added), as if this something were already lodged in the body prior to the ideological colonisations which would mould and tame its responses. When Eagleton attempts to specify what this excess in the body might be passion, imagination, sensuality6 he appears to gesture towards a psychoanalytic understanding of the political subject: to hint at the unconscious as that in the body which escapes ideology, subsists beyond interpellation, and enables the disruption of the bourgeois imaginary. Yet here again Eagletons localisation of unconscious desire in the body performs a biologistic reduction of the id: it is the bodys own libidinal impulses which continually traverse and de-stabilise the regulatory schemes organising its conscious sensate life. This reduction yields an account of the unconscious which, in seeing the latter as a pure biological origin for the insubordinate eruptions in the body of passion, imagination and sensuality, cannot account for the cultural organisation of desire itself (as opposed to the modes by which desire is repressed). Because of its blindness to the ways in which both need and desire are bound up with the regulatory schemes of culture schemes through which both are gendered in very specic ways Eagletons attempt to derive a set of political values from this irreducible biological substrate ends up looking suspiciously like a version of natural law theory. Certain human needs for nourishment, warmth, rest, shelter, labour and sexual reproduction proceed transhistorically, he argues, from the biological structure of the body and have therefore bulked largest (ibid., p. 410) in the course of human history; the capacity for pleasurable gratication
6 The aesthetic as custom, sentiment, spontaneous impulse may consort well enough
with political domination; but these phenomena border embarrassingly on passion, imagination, sensuality, which are not always so easily incorporable (Eagleton, 1990, p. 28).
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is no less a fact of human nature, although pleasure has in the course of social development become the preserve of a few (ibid., p. 411). [T]he highest values we can realise, he goes on, spring from part of our nature, and are not arbitrary choices or constructs (ibid., p. 412, emphasis added). The highest of these in turn is reciprocal self-fullment, which can only be fully realised through a transformation of the social and political order. Eagletons profoundly inconclusive conclusion is that the key political struggle of the present is an aesthetic one: between those who wish to divert the forces of production to the end of allowing social life to become a gratifying end in itself, and those who . . . resist it (ibid., p. 411). Precisely whose understanding of self-fulllment and what forms of gratication he has in mind here are not articulated, but Eagletons refusal to interrogate the cultural forces that produce and mould the pleasure-seeking urges of the human animal is consistent with an implicit celebration of a voracious male libido as not only natural, but highly desirable. Foucauldian aestheticism and corporeal feminism Given Eagletons commitment to materialism, it is surprising that he gives such short shrift to Michel Foucaults work on the body, because Foucaults refusal to countenance any such notion as real need or authentic desire would appear to make him the more thorough-going materialist of the two that is, if materialism is understood in non-physicalist terms as referring to the formation of the subject to social processes and relations. For the Foucault of Discipline and Punish (Foucault, 1977), at least, the body of the modern subject is a normalised, docile machine, actively constituted as such through the workings of disciplinary technology. This political anatomy acts on the body to produce it as an object simultaneously of intervention and investigation (or power/knowledge): it institutes a regime of visibility on the basis of which the normal can be distinguished from the pathological, and envelops the body in a dense mesh of continuous and uninterrupted processes (Foucault, 1980, p. 97) which train and optimize its capacities and aptitudes, govern its gestures and organise its responses by reference to the norms identied by a relentlessly vigilant gaze. In sharp contrast to Eagletons biologism, Foucaults insistence on the material productivity of these power/knowledge apparatuses is apparently such as to deny the body any real existence outside their operations. Further, Foucaults genealogical account of the desiring subject offers a compelling refutation of any attempt, including Eagletons, to theorise desire as pure foundation. Despite an early irtation with the notion that a way out of the iron cage of discourse might be found in a beyond that exceeds the reality produced by normalising technologies
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a primordial Unreason (Foucault, 1965), or a limit experience (Foucault, 1998) it is impossible to interpret the later Foucault as endorsing any such notion as the libidinal body: the body as the seat of an irrationality or an eroticism that cannot be constrained through discourse (or, in Eagletons terms, ideology). In the three volumes of his History of Sexuality project (Foucault, 1979, 1990a, 1990b), Foucault breaks decisively with the idea that desire could be conceived of as an historical constant, with only the forms of its repression being open to historical variation. The repressive hypothesis which postulates an essential nature held in check by the force of law is associated here as much with psychoanalysis as with positivist jurisprudence, only to be dismissed for its representation of desire as an essential truth rather than as a construct of scientic discourse and its associated confessional technologies. Instead, the desiring subject is exposed in these works to a genealogy of how it has become possible historically: an analysis, that is, of the practices by which individuals have come to identify themselves as subjects who can discover in desire the truth of their being. Far from proposing a strategy of freeing desire, Foucault aims through these investigations to free contemporary thought from any sense of the necessity or inevitability of thinking being in terms of desire. What accompanies this thorough-going historicisation of bodily experience and the disruptions of desire, however, is a kind of positivism which precludes Foucault from articulating a normative basis for resistance to the regulatory norms through which individuality is shaped. In particular, there is no hint in Discipline and Punish that the body could be the site of a Grand Refusal that is not already caught up in power/knowledge relations: though resistance is everywhere within the disciplinary order, it is thoroughly implicated in powers functioning, if not one of its effects (Foucault, 1980). Hence there is no attempt in Discipline and Punish to offer a basis for biopolitical counter-strategies of this kind in terms of a right to bodily integrity or indeed in any other terms (Fraser, 1981; Habermas, 1985, pp. 266293).7 Signicantly, however, Foucault responded towards the end of his life to disquiet at his silence in this regard,
7 The very notion of a right, moreover, is presented in Foucaults work of this period
as inextricably bound up with the logic of sovereignty. Since this logic, though heterogeneous to that of discipline, is also necessary to its functioning, the assertion of juridical rights cannot, in Foucaults scheme, operate as a pure mode of resistance to them. It is not through recourse to sovereignty against discipline that the effects of disciplinary power can be limited, because sovereignty and disciplinary mechanisms are two absolutely integral constituents of the general mechanism of power in our society (Foucault, 1980, p. 108). Although Foucault adverts to a new form of right, one which must indeed be antidisciplinarian, but at the same time liberated from the principle of sovereignty (ibid.), this notion is never developed in his writings.
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advancing as a model for action an aesthetics of existence, ostensibly drawn from ancient Greece, which Foucault represents rather schematically as a project of permanent creativity in the constitution of our selves. From the idea that the self is not given to us, Foucault declares, there is only one practical consequence: we have to create ourselves as a work of art (Foucault, 1983, p. 237).8 Yet this is an aestheticism which is a substitute for, rather than being, a politics. As Pierre Hadot has rightly pointed out, what Foucault is propounding here is nothing other than a new form of Dandyism (Hadot, 1985, p. 211)9 which in fact glories personal choice and creative individuality (without explaining how this individuality could be other than an effect of power relations), and recommends a form of self-absorption which is insufciently oriented towards the world of others beyond the self: the world, that is, of politics.10 Given the normative deciencies of Foucaults method, it is surprising that it has proved so inuential in recent attempts by Elizabeth Grosz and others to elaborate what has been called a corporeal feminism (Grosz, 1994). Groszs work, it must be said, is undoubtedly a major step beyond Eagletons own attempt to reconstruct everything from a bodily foundation. Though she privileges the subjects corporeality (ibid., p. vii) as
8 See also Foucault (1986). 9 Hadots argument is that while it may well be interesting to draw from antiquity a
model of life that may be useful in the present, Foucaults work on the ethical practices of the ancient Greeks simply misreads as practices of the self practices, that is, focused entirely on the self what were in fact spiritual exercises oriented towards transcending the self in order to participate in the universal order of the cosmos and accede to a wisdom which partook of a universal reason. The goal of Stoic exercises [of abstinence, examination of conscience, efforts at self-possession] is to go beyond the self, and think and act in unison with universal reason (Hadot, 1985, p. 207). Hence the movement of interiorisation involved in these exercises was linked to another kind of encounter with the exterior universal nature. In this way, one identies with an Other: nature, or universal reason as it is present within each individual. This implies a radical transformation of perspective, and contains a universalist, cosmic dimension, upon which . . . Foucault did not sufciently insist (ibid., p. 211). 10 As Venn points out, what is not elaborated within Foucaults aesthetics is a conception of the conditions which would free every person for the practice of endless self-fashioning that he recommends: a conception, in other words, of justice (Venn, 1997). For an interesting attempt to think together Foucaults aesthetic conception of freedom and a conception of justice adapted from Derrida, see Valverde (1999). Valverdes work, however, is premised on an opposition between philosophy and what she calls an historicized approach to justice (ibid., p. 406); and a privileging of practice-based ethical reections over theory (ibid., p. 420) in the elaboration of a postmodernist approach to ethics and politics. My project, on the other hand (see Part III below), is to seek to transform philosophy by forcing it to take seriously the historical and cultural specicity of normative claims.
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her preferred framework for explaining all the effects of subjectivity, all the signicant facets and complexities of subjects (ibid.),11 including especially sexual difference, Grosz would reject the base/superstructure analysis employed by Eagleton as a version of the body/mind dualism from which she rightly wishes to escape (ibid., p. 191).12 And although declaring her commitment to a materialism of the body,13 Grosz nonetheless insists that bodies are materialities that are uncontainable in physicalist terms alone (ibid., p. xi).14 What this means is, rst, that (contra Eagleton) bodies must take the social order as their productive nucleus (ibid.) and, second, that bodies have the capacity to always extend the frameworks which attempt to contain them, to seep beyond their domains of control (ibid.). Judith Butler, too, insists, rst, that the matter of bodies is indissociable from the regulatory norms that govern their materialisation (Butler, 1993, p. 2)15 and, second, that the regulatory schemes producing bodies that matter are historically revisable because productive also of an excluded domain of abjected bodies that challenges the hegemony of the symbolic order. Yet these conclusions, while they take Grosz and Butler well beyond Eagletons crass biologism, are not compatible. The rst commits each of them to the broadly Foucaultian position that [historical] representations and cultural inscriptions quite literally constitute bodies and help to produce them as such (Grosz, 1994, p. x). Yet if this is so, it is difcult to see how anything more is achieved here than the substitution of one (nonphysicalist materialist) account of the
11 Groszs project is to invert the primacy of a psychical interiority by demonstrating
its necessary dependence on a corporeal exteriority (Grosz, 1994, p. xii). 12 Grosz prefers a model which insists on (at least) two surfaces which cannot be collapsed into one and which do not always harmoniously blend with and support each other (ibid., p. 189). 13 [N]otions such as agency, reection, consciousness indeed, all the categories of interiority . . . can be re-mapped, regured, in terms of models and paradigms which conceive of subjectivity in terms of the primacy of corporeality (ibid., p. viii). 14 Elsewhere, however, Grosz acknowledges that [t]he body is constrained by its biological limits (ibid., p. 187). She advances an interesting analogy with the process of etching a recalcitrant surface to explain the interaction of biological materiality an open materiality, a set of (possibly innite) tendencies and potentialities which may be developed, yet whose development will necessarily hinder or induce other developments and other trajectories (ibid., p. 191) and cultural inscription: this analogy, she argues (unlike that of writing on a blank page), take[s] into account the specicities of the materials being thus inscribed and their concrete effects in the kind of text produced (ibid.). 15 Hence there is, Butler argues, an originary complicity with power in the formation of the I. . . . Although this constitutive constraint does not foreclose the possibility of agency, it does locate agency as a reiterative practice, immanent to power and not a relation of external opposition to power (Butler, 1993, p. 15).
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structure of bodily experience for another (biological materialist) account. Though undoubtedly more nuanced and sophisticated, this new account is no more capable of generating an explanation of how the reconstruction of corporeal/subjective experience could be possible, much less a compelling set of prescriptions for that reconstruction. The Grosz-Butler analysis, in other words, yields a grid through which to understand how the cultural inscription of the body produces certain specic subject positions, and in particular sexed subject positions, but it can offer no prescriptions as to what should become of these: what normative signicance should be attached to them or what alternatives might be preferable. Doubtless aware of this, Grosz gestures towards a capacity for insubordinate irruption that supposedly resides beyond the bodys discursive determinations its tendency to extend . . . [or] to seep beyond these determinations as the basis for resistance to the regulation of sexual difference. Yet her work is silent on the question of how this capacity could itself escape the domains of control encircling the corporeal subject, and if so, which amongst its resistances would be worth defending. If it is itself an effect of power it cannot offer a way out of powers iron cage; if it subsists beyond this cage it cannot be theorised at all within Groszs materialist grid. Either way, the subversive potential appealed to here is normatively agnostic: it is a pure force of refusal which indifferently confounds every institutional arrangement in which sexed identities are xed and valorised. Judith Butler, too, employs a psychoanalytic model of the social emphasising the constitutive force of exclusion, erasure, abjection and its disruptive return within the very terms of discursive legitimacy (Butler, 1983, p. 8) to explain how the excluded realm of the abject could be both an effect of regulatory norms and capable of challenging them. For her, the discursive possibilities opened up by the constitutive outside of hegemonic positions (ibid., p. 12) enable the disruptive return of the excluded from within the very logic of the heterosexual symbolic (ibid.). But if this is so, what specic kinds of discursive possibilities should actually be prioritised by feminists? What disruptions, exactly, are worth celebrating? No answers are forthcoming,16 because Butlers genealogical/psychoanalytic framework precludes their formulation: for Butler, as for Foucault, subversion is subversion, and it can in principle go in any direction (Nussbaum, 1999, p. 15). In particular, since subversion disrupts
16 Martha Nussbaum argues that Butler does offer a conception of politics as a parodic performance (Nussbaum, 1999, p. 10) of socially produced identities, but, echoing Hadots critique of Foucault, dismisses this as self-involved (ibid.) and, in its fascination with drag and cross-dressing as paradigms of feminist resistance, focused narcissistically on personal self-presentation (ibid., p. 20).
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the very terms of discursive legitimacy, all normative frameworks democratic as well as fascist; feminist as well as patriarchal; egalitarian as well as authoritarian would appear to be equally vulnerable to subversion, irrespective of the particular norms of discursive legitimacy they employ.
PART II: T HE I MAGE ,
THE
F EMININE
AND THE
L AW
Thus far it has been suggested that aesthetics, considered in Eagletons terms as a discourse about the body, yields a set of normative criteria for the conduct of political life which, while arguably determinate (because rooted in the brute facticity of biological needs and desires), rest on a dubious account of human nature. There are clearly no lessons for feminism here: on the contrary, the work of feminist theorists such as Elizabeth Grosz and Judith Butler has moved well beyond the biologism that was once such an abiding feature of some feminist literatures, and for good reason. Yet it is not clear that the new corporeal feminism offers compelling solutions to the problems with which Eagleton also grapples: how to account for the body as both an effect of and outside power, and how to theorise this outside as a coherent basis from which to argue for progressive political change. One of the keys to the shortcomings of the work of Grosz and Judith Butler in this regard is the theoretical framework deployed by both of them: an uneasy mix of Foucaults genealogical method and a psychoanalytic mode of explanation drawn from Jacques Lacan. Briey put, genealogy produces an account of the bodys formation in social processes of representation and inscription; psychoanalytic theory points towards the irruptive capacity which could undo those processes. As I have argued above, these approaches are not compatible, and they leave us none the wiser as to what particular normative commitments might be entailed by their use either individually or in combination. They appear to be married once again in the work of Peter Goodrich, who describes his project citing Foucault as a genealogy of the image in law (Goodrich, 1995, p. 11), but provides what purports to be a psychoanalytic interpretation of images as indexes of an invisible, unconscious or oneiric logic of institutional speech (ibid., p. 183). As it turns out, this marriage is bogus Goodrich can in no sense be described as a Foucaultian genealogist and the dominant inuence on his work is clearly psychoanalytic theory17 but his
17 A method that purports to yield a history of laws institutional imagination, a
history of the unconscious of a human science, a history of the multiple images of justice, person, thing and action which form . . . the symptoms of legal culture (Goodrich, 1995,
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recourse to the image as a category through which to revive the problematic of an aesthetic of law similarly winds up in a normative vacuum. Now stripped of any analysis of the sediment deposited by material practices of inscription, Goodrichs account of the image ultimately presents it as that ineffable icker of difference which eludes all formalisation, that giddy moment of failure, slippage or jouissance (Eagleton, 1990, p. 370) that Eagleton rightly dismisses as too indeterminate a basis on which to found a politics. Uncontaminated though it may be by the arbitrary positivities that produce lived (corporeal) experience technologies of power; material practices; legal rules; political institutions the oneiric logic to which Goodrichs image purportedly gives access is at the same time, I will argue, so far removed from these positivities that its engagement with them is impossible to imagine, much less enact. Peter Goodrich: The image and the void It must be stated at the outset that the theoretical orientation of Goodrichs meditations on the image dees any easy characterisation, even in terms of psychoanalysis. Indeed much of what follows is an attempt to work through these meditations with a view to locating them within a recognisable framework of theoretical argumentation so that the claims they imply may be identied and evaluated.18 If my analysis appears laboured
p. 25) is the very antithesis of a Foucaultian genealogy, since it brackets the question of the historicity of psychoanalysis itself the very human science which, Foucault would argue, has produced the unconscious as an object of knowledge and trained its proponents to nd the truth of (legal) culture through an interpretation of the symptoms of unconscious repression. 18 It might be suggested that to analyse Goodrichs work in this way is to miss the point of his project, which is precisely to confound the institutional prose of academic scholarship with the poetry of (his) rhetoric (see Goodrich, 1992). From this perspective, careful exegesis of Goodrichs texts will be derided as an exercise in pedantry; attentiveness to their inconsistencies, non sequiturs and terminological confusions dismissed as an attempt to conne their boundless plenitude within the arid territory mapped out by the scholarly criteria of clarity, rigour and accuracy. One response to this objection might be that bad poetry is in no way deserving of the suspension of intellection that good poetry may induce. The better response, however, is that Goodrich himself asks that his work be read as critical legal scholarship (ibid.), and this necessarily commits him to engaging with (even where the point of the engagement is to subvert) the limits which have come to be associated with the practices and institutions of critique, law and scholarship. To be sure, these limits are contestable and actively contested, but one interpretation of what they currently imply can be briey stated: to engage in the critique of law is to examine, compare and judge the actual processes and effects of a positive institution; critical scholarship pursues this task using the extant concepts and frameworks organising theoretical debate in the academy and acknowledges a responsibility to persuade others, by argument, that ones interpretation of these is worth pursuing on the ground that, otherwise, the reader becomes
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at times, it may be because more than a little labour is required to wade through the dense mire of Goodrichs prose. The record of that effort is reproduced here in full, because the argument it nally reveals is not unrelated to the manner in which the reader is continually kept at bay by the hedge of obfuscatory verbiage that surrounds it: both style and substance conspire to reduce Goodrichs writings to an aestheticism in which deferral takes the place of critique. A preliminary difculty with Goodrichs writings on the image is that, as in Eagletons work on the body, the referents to which the term image is supposed to point are various and incommensurable: they include visible signs that in striking the corporeally situated eye implicate the sense of sight; literary or rhetorical gures that in appealing to the inner eye of the imagination of the senses (Goodrich, 1995, p. 242) (sic) move the soul; indices of the unconscious; and, most generally, the sign . . . of a historically feminine difference within the text of law (ibid., pp. 181 182). Specula Laws: Image, Aesthetic and Common Law (Goodrich, 1991) exemplies some of these ambiguities. Here Goodrich makes a series of assertions about the power of the visual, of the image (ibid., p. 234) which reduce to the suggestion that law, despite its apparently textual nature, relies crucially upon images: through its construction of legal identity within an imaginary structure of belonging . . . liation and descent (ibid., p. 250); in the rhetorical tropes and gures of speech that inhere in its hermeneutic method; and in the symbols including not only its books (considered as written monuments) but also its architecture, statuary, dress, heraldry, painting and insignia (ibid., p. 234) by which it inscribes itself upon the soul of the citizen. Clearly, the notion of image as it is used here is not conned to, though it includes, that which is literally visible to the eye: the visible sign represents an invisible presence, it manifests a deep structure or law which otherwise escapes the senses and could not hold (fascinate) the imagination (ibid., p. 235). But what exactly it is, other than the name image, that links objects of sight with objects of the imagination, and both with laws imaginary structure of belonging, is not explicitly theorised. Scattered references to the unconscious in conjunction with the imagination or the soul hint that a deeper opposition might be at work here: between the material body (in particular, the literally embodied sense of sight) and the imagistic movements of the unconscious, with the latter being posited as somehow foundational
so diverted by the task of deciphering and evaluating ones message that its critical edge becomes fatally blunted. Goodrich himself has offered no convincing reason to depart from this conception of critical legal scholarship. What follows, then, is a reading of Goodrichs work as it apparently asks to be read.
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in relation to the former. This theme, however, is not developed; nor is the reader offered any indication of whether or how an awareness of the capacity of the image to fascinate the soul of the legal subject could be turned to critical effect within a radical politics. Indeed if anything, the suggestion here is that the image functions entirely as an element within what Eagleton would call the dominant ideology: as the aesthetic form in which the power of law manifests itself to and within the subject. If Specula Laws plays inconclusively with the ambiguities surrounding the word image, Goodrichs subsequent work around this theme (see e.g. Goodrich, 1992, 1995, 1997b, 1999) refers much more explicitly to Freud, though a version of Freud mediated by the work of the French jurist and psychoanalyst Pierre Legendre. The relative (in)signicance of the literally visual is claried: the governance of [visual] perception is to be understood as merely a route to the governance of the soul and the regulation of exterior images as directed at control of interior images (Goodrich, 1995, p. x). Moreover the locus of these interior images is now openly described in the language of psychoanalysis:
To the degree that the imagery of a system of precedent is unconscious, that its gurative expressions, narratives and visual structures, contexts and modes of representation are unconscious, they imply some degree of recourse to psychoanalysis as the explicit study of the repressed mechanisms at work in the reproduction of the imagery of law (Goodrich, 1992, p. 224).
But this overtly psychoanalytic account of the image and its role in law brings further ambiguities in its train. The passage just quoted implies that the imagery of law is in some sense brought into existence through repression and subsists as the secondary process of legal discourse: as legal consciousness.19 This does not sit easily with the suggestion that, on the contrary, the image is connected with that which both is repressed, and yet returns within, law considered as a rational corpus of textual contents. Further, whereas the association of the image with repression rests on an opposition between imagery and textuality the institution of written law, it is observed, has been premised upon the exclusion of visual images20
19 In this guise, the image of law plays [an] explicit or at least obvious role in the power,
sensibility and permanence of the institution. Attachment to law or belief in its reason and value are not so much forms of attachment to any specic content of the normative textual system as they are adherence to, faith in and desire for the generic continuance of an image or images of laws presence and value, its authority and desirability, its inescapable place (Goodrich, 1995, p. 224). Confusingly, Goodrich refers to this dimension of the image of law as laws positive unconscious (ibid.). See also Goodrich (1999, pp. 105106), where the image is referred to as the mark of power and of legitimacy. 20 See Goodrichs discussion of the antirrhetic as a discourse against images (Goodrich, 1995, p. 11 and Chapters 3 and 4).
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its identication with what returns within the legal text rests on their conation: repression of the image only results in the displacement of [its] power . . . from plastic to textual forms (Goodrich, 1995, p. 181), i.e. having been eliminated as the literally visual, the image returns within legal discourse as the literary trope or gure.21 Here again, Goodrichs treatment of the concept of the image yields only equivocation the image, it would seem, is both the same as, and other to, the text; and it is effect, casualty and even agent22 of repression all at once and this in turn makes it extremely difcult to extract a coherent message as to what its role might be in the critical-political programme of jurisprudence. In so far as a thesis can be discerned here at all, it is that images considered as those gures that erupt symptomatically within legal discourse give a disguised expression to an unconscious legal order, their distorted forms corresponding to the primary processes of condensation and displacement (Goodrich, 1995, p. 228 and n. 137).23 In this role, the image (now invoked as a creative imaginary or the imaginary as difference within the text of law (Goodrich, 1995, p. 182)) exceeds and outmanoeuvres the image considered as a stabilising emblem of legitimacy: the imaginary invariably escapes the image. The creative process of the image, in other words, cannot be rationalistically conned by reference to concepts of visibility (imitation) and legibility (iconology) . . . (Goodrich, 1992, p. 234). The task of critical legal studies, it would seem, is to tune in to this creative energy through a symptomatic reading (Goodrich, 1995, p. 182) of the texts of law. Freuds account of the role of dreams in providing access to the unconscious is explicitly referred to in this context:24 indeed it is suggested that there is an ontological afnity (Goodrich, 1995, p. 33) between the subjects unconscious and the legal unconscious, a functional similarity between the dreams of the individual and the images of law, and thus the need for a method, analogous to Freuds mode of interpreting dreams, that is cognisant of a poetics repressed within institutional prose,
21 [T]he image became an aspect of, and internal to, the text (Goodrich, 1999, p. 108). 22 The immobile mask or image, the rule or law conceived as a repetition of a prior or
precedent form, repeats so as to repress the process of reproduction, the creative act, which the image precisely screens, internalizes or hides (Goodrich, 1992, p. 224, 1995, p. 14). 23 See also Goodrich (1995), p. 12 (outlawed images . . . [rely] on contiguity or metonymy, upon a free association, a mobility that passe[s] through law but always also exceed[s] it) and p. 33 (Images in the text and in the other verbal and plastic representations of law are distortive forms both of recollection and representation; they are the affects, the symptoms, the intensities or condensations of the desire that law hides or conceals behind the reason of rules.) 24 In The Interpretation of Dreams (Freud, 1991), Freud indicates that dreams are essentially comprised of images.
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of . . . a power in its reason, an image in its logic . . . (ibid., p. 30, p. 182; Goodrich, 1997b). However if we are to take this claim literally, it amounts to the argument that the unconscious to which laws creative imaginary gives access is to be understood as Freud himself understood it: in quasi-biological terms, as a distinct realm with its own specic contents erotic drives and their ideational representatives. If, as seems likely, Goodrich wishes to avoid the dubious implications of this position,25 then some alternative interpretation needs to be offered, one which could account for the constant movement that creates and recreates [the legal] text (ibid., p. 32) in terms of something other than the ow of a kind of libidinal energy out of an other scene constituted of repressed desires (ibid., p. 220).26 Yet the only alternative Goodrich suggests although he does not thematise it as such because he fails to perceive the slippage here returns him precisely to a linguistic conception of the unconscious. This alternative is Jacques Lacans redenition of the unconscious as simply the exteriority of the symbolic in relation to man (Lacan, 1977, p. 709) and desire as the form in which the play of the signifying process manifests itself against the appearance of stasis and transparency in language. In the Lacanian account, the unconscious is neither a biologically determined substance nor the ontologically distinct locus of a determinate set of contents, but simply the primacy of the signier over the signied within discourse (Dews, 1987). But further, for Lacan, the Imaginary is the order in which this primacy is denied: the illusory effect of meaning, and the illusion of an intentional production of that meaning, is precisely the imaginary aspect of every act of enunciation (ibid., p. 99). In this respect, Lacan aligns himself with other anti-ocular tendencies within contemporary French thought, which have, in one way or another, condemned the hegemony of vision as the noblest of the senses for its complicity with the modern privileging of the I/eye: the rational subject as observer-spectator (Jay, 1994; Levin, 1993).27
25 Though see Goodrich (1997b) on the relevance of the study of the unconscious, or
acknowledgement of the emotions, of the body and of its repressions or hidden domains of desire (ibid., p. 5) to the analysis of positive law. 26 Goodrich characterises the contents of the legal unconscious as a bestiary . . . of lost objects, exiled subjects, illicit images, condemned words, and failed memories (Goodrich, 1995, p. 221). 27 It should be noted that for Lacan, identication with an image of the I as stable, unied and autonomous is premised on a misrecognition, and is achieved only by a splitting of the subject from its immersion in what Lacan calls the Real, a primordial and undifferentiated allness which precedes any boundaries amongst or between subjects and objects. This primal fantasy of disintegration a fantasy in which mourning for the loss of the Real is accompanied by fear of its return is never entirely dispelled, and it
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The apparent transition from a Freudian to a Lacanian conception of the unconscious in Goodrichs work is signalled by the suggestion that rhetoric, which studies the tropes and gures of [legal] language . . . studies also the unconscious of the institution (Goodrich, 1995, p. 183, emphasis added) or in other words that rhetoric is the premodern [jurisprudential] form of psychoanalysis (ibid., p. 181). Yet the problems posed for Goodrichs own notion of a creative imaginary by this apparent shift towards a Lacanian conception of the unconscious as structured like a language given Lacans fundamentally opposed understanding of the imaginary in relation to the unconscious are simply ignored. A further terminological twist only adds to the confusion: this (textualised) imaginary is characterised as the object, not of a psychoanalytic theory of law, but of an aesthetic of law which studies both the creativity of legal acts of judgement and the objects, the fabrications, ctions and lived institutions which such acts create (ibid., p. 235, emphasis added). And for Goodrich,
[a]esthetics is . . . the study of subjectivity; its analysis of judgement is an elaboration of the contingency of law in Kants terms, it studies a conformity to law without law, the legality of the contingent and so of those sensibilities, tastes and styles that govern the public sphere or sensus communis. The positive object of critical legal study is thus an indeterminacy that accompanies and belongs to the legal tradition as its style, its discrimination, its mode of deciding or, in a classical sense, its ethics (ibid., p. 234).
Quite what warrants these shifts of theoretical gear from a version of psychoanalysis, to rhetoric, to aesthetics, to ethics is difcult to discern, and they succeed only in obscuring a clear view of where the imaginary creativity to which Goodrich refers resides, what its structure is and what exactly would be involved in invoking its disruptive power against the legal image (whatever that might mean). Tellingly, however, Goodrichs most recent formulation renders the space of indenite creative possibility where law encounters aesthetics (Goodrich, 1999, p. 114) and which we came across earlier as an imaginary space lled with repressed
manifests itself in images that disturb the egos fragile sense of autonomy and identity. The image, then, is doubly signicant in Lacans work: it is both the delusive, integrative mirror image of the Imaginary, and the trace of an encounter with Real dissolution. Importantly, however, since the Real (and its image) is extrinsic to the signifying process, even that of the unconscious it is beyond the return [of the repressed as symptom or signier], the coming-back, the insistence of the signs by which we see ourselves governed by the pleasure principle (Lacan, 1979, pp. 5354); it is therefore also beyond the dream (ibid., p. 60) it cannot be theorised by reference either to language or desire. Hence the vocabulary of concepts Lacan uses in relation to the Real is quite distinct from that used in relation to the Symbolic: tuch; repetition; foreclosure; jouissance. There is no evidence, however, that Goodrichs equivocal use of the term image is intended to grasp the complexities of its dual signicance within Lacans framework.
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contents as empty or blank. Here, nally but apparently unwittingly, Goodrich confronts the logic of his position: the image, as the image of an absence, is itself nothing; the space where it supposedly resides a void. Beneath the bloated verbosity of Goodrichs writings on the image, then, lies one rather simple idea: the image is the trace within law of a utopian beyond that is both indescribable and empty. To an extent, this characterisation of the creative imaginary follows from the structure of Goodrichs preferred framework: psychoanalytic theory. However Goodrichs use of psychoanalytic theory is itself fundamentally incoherent, poised as it is between an imagistic conception of the unconscious apparently derived from Freud, and a linguistic conception that seems indebted to Lacan. From the Lacanian perspective, image carries a negative connotation to the extent that it is linked with the Imaginary, the order of specular identications premised on misrecognition, on denial, and on a blocking both of the overwhelming force of the Real and the disruptive force of the signier: law and the image, then, signies a certain complicity or cooperation, and this indeed is the implication of some of Goodrichs work around this theme. But precisely the opposite position is also evident within his work: image carries a positive connotation (via Freuds theory of dreams) as gure, that is, as the form in which the repressed others of rational thought re-emerge in and against the legal text. This equivocation installs a fundamental ambiguity at the heart of his project. To put it crudely, is the image properly the target (as the site of social reproduction (Goodrich, 1995, p. 14)) or the weapon ([t]he other scenes of law its images, its gures, its architecture, its rites, myths and other emotions are potentially the economies of resistance to law (ibid., p. 15)) of critical legal studies? To respond that the image is both inside and outside, both law and desire, sign and sentence, symptom and word (ibid., p. 34) simply hides imprecision under the pretence of a dialectic. Further, the impression of normative vacuity is compounded by the inclusion in the category of the repressed, to which critical legal studies must listen, a seemingly inexhaustible list of others, for the history of the common law has been one of the repression, not only of the image, but of the vernacular, of nature, of equity, of justice, of women, of aliens, of ethics, of subjectivities, and more distantly and darkly of violence, desire and the failures and miscarriages of law (ibid., p. 37). The indenite creative possibility postulated by Goodrich is, it would seem, in the end nothing more than a crypto-metaphysical principle of indeterminacy and one, moreover, which though endlessly evoked in his work is never adequately theorised in relation to a broader history of philosophical thought. Consequently, he cannot do other than gesture at a
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connection between this indeterminacy and ethics much less justice although the claimed radicalism of his project depends on a demonstration of that very connection. To the extent that Goodrich adopts a recognisable philosophical position at all, it is that of the philosophers of negativity referred to earlier, who oppose institutionalised (legal and other) rationalities with nothing more specic than an impulse: the impulse to refuse rationality as such. This is not so much a position as a pose, an attitude, that permits no engagement whatsoever with the positive institutions in which determinate conceptions of justice, of women, of aliens, of ethics, of subjectivities and everything else are actually produced, stabilized and argued over:28 here Foucaults absence from Goodrichs texts is evident, and in this respect at least unfortunate.29 Diana Coole offers an eloquent diagnosis of the impasses to which this (non-politics) leads:
[P]hilosophies that begin with heterogeneity and ux, with pure processes of negativity, are inimical to the subsequent derivation of a politics. . . . [P]recisely because the political is the domain of collective life, it necessarily engenders, and indeed requires, shared practices, norms, languages, no matter how diverse its participants. . . . In other words, the political must entail relatively enduring structures and practices, as well as negation and critique. For politics means carving up the ux of social life, imposing boundaries, limits, laws that its apparatus then polices. These may be experienced as coercive but, also, as empowering. As such, the political cannot be conceived as a direct expression of negativity in its more evanescent and wild modulations. For it is impossible to understand or interpret the rhythms of this more turgid realm where power and inertia as well as desire conspire to x the positive, and where the given necessarily changes according to the rather slow tempo collective action and structural imperatives entail if the choreography of generativity is understood in too mobile a fashion (Coole, 2000, p. 9).
28 It seems safe to say that Goodrichs call for [utopian] rights . . . to poetry and imagination, to the fantasm of identity and the chimerical space of relationship (Goodrich, 1997a, p. 442) which is as close he gets to a political programme is likely to remain unanswered, for it is incapable of being answered. 29 Despite early indications in Goodrichs work on the image that it is through laws visible symbols that it inscribes its authority upon the soul of the citizen or in other words that the phenomenological experience of seeing conditions the possibility of willed obedience he offers no sustained analysis of the various scopic regimes by which visual experience is regulated, or of the specic practices through which a subjective attachment to a particular order and organisation of experience (Goodrich, 1991, p. 234) is put into play in particular times and places. This refusal to engage in anything approaching a sociological investigation of the image in favour of one which presents it as a pure, transcendental force of creativity arguably reects a (gendered) privileging of the noumenal over the phenomenal (Battersby, 1998), and in a sense mirrors Eagletons insistence on theorising desire as a pure biological force of libidinal energy, equally uncontaminated by social processes and relations.
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Drucilla Cornell: An aesthetic of feminine disappearance? One of Goodrichs most telling characterisations of the methodology inspiring the current preoccupation with the role of the image in law renders it as an aesthetic of feminine disappearance (Goodrich, 1997a30 ). Though predicated upon the observation that nothing, not even woman, disappears absolutely or without trace (ibid., p. 439), and directed towards recovering the traces of absent women (ibid., p. 440) in law, this orientation, Goodrich concedes, is necessarily both . . . oppositional and . . . precarious (ibid., p. 439) because the woman who disappears is a shadowy gure, her presence registered only via traces which are eeting and elliptical, both hard to discern and hard to interpret (ibid.). It is signicant that it is womans disappearance that serves as the focus of this characterisation, and interesting that Goodrich should in this context refer to the work of Drucilla Cornell, a feminist legal theorist who has also placed the imaginary though in her case a specically feminine imaginary at the centre of a theoretical framework built of concepts drawn from deconstruction and psychoanalysis. Unlike Goodrich, Cornell is one who has over many years demonstrated an acute awareness both of the signicance, and the specic rhythms, of the political, and has devoted much of her work to careful elaboration of schemes for the transformation of the legal system towards the undoing of patriarchy. I therefore hesitate to suggest that her position dovetails with Goodrichs melodramatic quietism, but there is at least one respect in which it does. The key to understanding Cornells oeuvre is to bear in mind that it operates in two distinct registers that of an indeterminate feminine imaginary, and that of determinate rights (what she calls equivalent rights) for women. It is the rst of these that replicates Goodrichs negativity, while the second admittedly proceeds from a normative vision oriented towards legal reform. For Cornell, a central preoccupation is how to afrm the feminine within sexual difference [so as to challenge the gender hierarchy] without appealing to essentialist or naturalist theories of who we truly are as women (Cornell, 1993, p. 5). The answer, in her view, is to be found in a radicalisation, made available by Derridean deconstruction, of Lacans psychoanalytic theory. Lacan offers an account of Woman as a castrated Other, lacking the afrmative qualities associated with the phallus, and this, according to Cornell, has led some Lacanians to insist that there cannot be an afrmative evaluation of [the feminine within] sexual difference (ibid., p. 140). Derrida, however undermines Lacans political pessimism by showing us why the gender hierarchy, if it
30 Reviewing Young (1996).
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is constituted through language, cannot protect itself against the slippage of meaning inherent in linguistic structures that, in turn, cannot ground themselves in an accurately designated outside referent (ibid., p. 6), namely the penis. So the feminine on this Derridean account just is the possibility of the slippage of meaning that disrupts the gender hierarchy, an endless possibility of remetaphorisation and displacement (ibid., p. 115) that shifts the boundaries of our current identities imposed by our engendered reality (ibid., p. 142). Hence Cornell refers to this possibility in terms of a feminine imaginary which seeks a new symbolization of the meaning of sexual difference (ibid., p. 134).31 Unlike Goodrich, Cornell places her treatment of the imaginary rmly within a sophisticated reading of Lacanian psychoanalytic theory, and so is fully cognisant of the conceptual distinctions between the Imaginary, the Symbolic and the Real. Her project is to challenge the rigid divide between these orders by insisting, against Lacan, on the possibility of a symbolisation of that which is foreclosed by the (masculine) Imaginary (and is thus, for Lacan, the impossible (Lacan, 1979, p. 167)): a feminine imaginary of (Real, in Lacanian terms) heterogeneity, ux, and an undistorted relation to the Other.32 However, Cornells conception of this possibility is similar to that of Goodrich to the extent that nothing in particular is actually imagined that could esh it out, as such, or imbue it with substance. Hence it does not rest on a positive description of Woman (Cornell, 1992, p. 11) but only on the search for a new symbolization, where the new is not specied except as that which is other than the given. Thus the feminine reduces to the possibility of reperformance, of actions beyond the xing determination of the phallic signier (ibid., p. 166). Cornell breaks radically with Goodrich, however, when she enters her second register, that of programmatic intervention into actually existing legal structures. As Cornell acknowledges, such attempts at intervention are necessary if her project is not to collapse into Goodrichs aesthetic of feminine disappearance: in their absence, as she rightly points out, we are seemingly left with an abstract difference which, through its very abstractness, potentially erases the specic contours of feminine difference, and by so doing reinscribes the repudiation of the feminine, and even indiffer31 It is elsewhere referred to as the explosive force of an imaginary that cannot be completely shut out (Cornell, 1991, p. 2). 32 Thus although she acknowledges that [i]n one sense . . . it is a technical impossibility, if one accepts the Lacanian . . . framework, to represent the mother/daughter relationship in the symbolic as a beyond to the phallic order because the symbolic forecloses the expression of the daughters libidinal relationship to the mother (Cornell, 1991, p. 22; see n.27, supra), Cornell refuses to accept the implications of this, on the ground that it undermines the utopian power of the feminine imaginary (ibid.).
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ence to womens suffering (Cornell, 1991, p. 14, emphasis added). Yet although she presents her programme of equivalent rights as the practical analogue of the afrmation of the feminine the translation of the latters ethical injunction into the legal sphere (ibid., p. 6) the two strategies do not logically entail each other. On the contrary, legal initiatives that seek to instantiate the feminine-as-possibility (and so fold the rst register into the second) necessarily, on Cornells own account, betray and violate it. Cornell acknowledges this:
[Equivalent rights] avow what has been disavowed, afrm what has been repudiated, as one moment in the political struggle of feminism. This afrmation is explicitly ethical in that it deliberately challenges the gender hierarchy in which the feminine within sexual difference is refused, or more precisely, is identied as refuse. But the afrmation necessarily operates within a performative contradiction precisely because the feminine within sexual difference is what is not there, except as the projected Other to man, as the abject, as the refuse. . . . Ethical feminism denies the truth of the gender hierarchy by afrming the feminine within sexual difference as other to its current identications (Cornell, 1992, p. 142, emphasis in original).
The principle that the feminine is other to its current identications is indeed in contradiction with the project of re-inscribing the feminine in law, for the success of this project vis--vis the law the translation of the feminine into legal discourse is at the same time its failure vis--vis the principle: the feminine can never be reduced to its current denitions (ibid., p. 6), even the new denitions presupposed by Cornells programme of equivalent rights. On its own, therefore, the feminine-aspossibility cannot generate this programme, and indeed in elaborating it Cornell looks elsewhere to a conception of equality of well-being and capability drawn from the work of Amartya Sen (Cornell, 1992), and to fairly uncontroversial feminist understandings of what womens well-being would consist in and how law could accommodate it for inspiration. For example, Cornell does not disguise her admiration for Robin Wests admittedly naturalistic and essentialist attempt to construct a feminist jurisprudence from a conception of bodily experience which places womans reproductive capacity at its core: in spite of the philosophical weaknesses of her approach, [West] has shown the political and ethical power of the afrmation of feminine difference within the eld of law (Cornell, 1991, p. 21, emphasis added). Cornells sympathy for Wests normative jurisprudence follows from her conviction that it is politically necessary to afrm the feminine by tak[ing] off from within [the extant constructions of] sexual difference (ibid., p. 100); she departs from West to the extent that she insists that this must involve more than simply stabilising one of these constructions as the denition of what Woman is. Instead, Cornell argues, we must risk metaphoric transference (ibid.), an
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assertion of identication, through transference, with metaphors that evoke the feminine:
Metaphor as transference and analogy always implies both the like and the not like . . . Metaphor, in turn, allows both for expansion of meaning and for reinterpretation. The characterization cannot be cemented in stone precisely because it is designated as metaphor. Therefore, the realization of feminine being as metaphor is what allows us to reinterpret, and more important, to afrm the feminine as other, and irreducibly other, to any of the denitions imposed by patriarchy (Cornell, 1992, pp. 133134).
But which metaphors should we identify with? Which expansions of meaning and reinterpretations should be entertained? And under what conditions would it be possible to say that a particular metaphor or re-metaphorisation was more or less, or not at all, imposed by patriarchy? Deconstruction cannot answer these questions because it is more preoccupied with what cannot be captured by metaphors than with what can and Cornell can only do so by slipping in a quite separate normative theory of what it is about the feminine, as lived, that is worth afrming in law: a theory, moreover, for which she does not provide an adequate philosophical justication. Briey put, when Cornell does normative feminist jurisprudence, she is not doing postmodernism, and when she does postmodernism, she is not doing normative feminist jurisprudence. Yet she tries to do both at the same time, on the ground that the latter is philosophically weak and the former politically unpalatable. The whole, however, is no greater than the sum of its parts: what Cornell ends up with is a politics and a philosophy that are radically at odds with each other. It is not enough, it seems to me, to brush this problem aside with an acknowledgement that of course one operates within a performative contradiction. What is missing from Cornells work is a meta-philosophy which could think together the endless potentiality of the feminine and the determinacy of law. Neither deconstruction nor jurisprudence (as Cornell understands it) can provide this, for they enable the theorisation of one or the other, but not both together. It is precisely this thinking together, I would argue, that Kants aesthetic philosophy makes possible, and it is to that which I now turn.
PART III: W HAT C OULD A ESTHETICS B E ? What can be retrieved from the discourse of aesthetics for a feminist critique of politics and law? The answer to this question is to be found, it seems to me, in a serious engagement with philosophical aesthetics, a tradition in which the category of the aesthetic operates as much more than
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a byword for a biological (Eagleton), social (Grosz, Butler) or noumenal (Goodrich, Cornell) excess that subsists beyond accommodation by the order of discourse. The key gure in that tradition is Immanuel Kant, a philosopher whose work has so far been received more as a provocation to, than as an inspiration for, feminist legal theorists. As has been indicated already, this is because Kants second Critique, the Critique of Practical Reason, effectively launched the vocabulary of mainstream jurisprudence and political philosophy: a vocabulary in which the autonomous rationality of a universal subject is set up as the origin of, and justication for, legal structures and political arrangements in opposition to the empirical determinants that, in Kants view, enslave the embodied individual and make moral action impossible. Clearly, this model is antithetical to feminists, for whom the autonomous will institutionalised in law is a thinly disguised cover for a specically male form of reason, and the embodied, contextualised, particular individual a gure of femininity and a possible basis for an alternative normativity. My argument here, however, is that the aesthetic theory of Kants third Critique, the Critique of Judgement, carries the potential to equip feminist legal theory with a rmer conceptual basis for its strategy of problematising laws rational authority than ritual invocations of the volatile body or the creative imaginary, while also permitting the elaboration of claims that are both normatively persuasive and capable of signifying with the legal domain. Kants project in the rst part of the third Critique is to analyse the kinds of experiences that prompt one to say of an object or event this is beautiful, and to identify the conditions under which such a proposition could be universally and necessarily valid, i.e. valid for every human subject a priori. Put slightly differently, his theory of beauty has two components: an explanation of the feeling of pleasure occasioned by a beautiful object, and an analysis of the judgement of beauty as a claim of universal and necessary validity for that feeling of pleasure. The rst component accounts for the feeling of pleasure that constitutes an aesthetic response to an object as caused by a particular kind of relationship between the human faculties of imagination and understanding: a relationship of harmonious play. There are many ambiguities associated with this latter notion, and its signicance is perhaps best approached by means of a comparison with what in Kants view is involved in the process of ordinary cognition, such as occurs when one arrives at the judgement that this is a rose. Ordinary cognition, Kant had explained in his Critique of Pure Reason, occurs through the interaction of the two stems of human knowledge: sensibility and understanding (Kant, 1996, p. 67). Sensibility enables the subject to have intuitions of (and so be affected by) particular objects and
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events in the world; understanding is the faculty which yields concepts (e.g. the concept rose) for organising or determining intuited material so that knowledge of it is possible. In this context, the faculties of imagination and judgement gure respectively in the roles of apprehending the otherwise disordered manifold of sensible intuitions as a unity (by generating an image), and subsuming this unied manifold correctly under concepts supplied by the understanding. In ordinary cognition, then, imagination is not free it submits to the understanding by synthesising the manifold of intuitions according to the latters concepts and so here the image is, as it were, subordinated to the concept. The kind of aesthetic response with which Kant is concerned in the third Critique, on the other hand, involves a different relationship between imagination and understanding: a relationship of play between understanding in its lawfulness and imagination in its freedom (Kant, 1987, p. 151). The imagination operates freely when it apprehends a unity in the manifold, without this unity or image then being subsumed under any determinate concept supplied by the understanding; and arguably also where it apprehends other possible forms of unity other images beyond those presupposed by any concepts which may determine the object. This freedom is only in harmony with the understandings criterion of lawfulness, however, when the unities it apprehends full the general condition for the possibility of applying concepts, and this will be the case when a quality of unity or order, albeit indeterminate, is apprehensible in the manifold of intuitions presented to the perceiver of the object: it is this quality that tends to be referred to as the objects beauty. The faculty of judgement performs the role of checking imagination in its freedom by holding it accountable to the understanding in its lawfulness in this general way: judgement subsumes the . . . imagination under the condition which must be met for the understanding to proceed in general from intuitions to concepts and thus the power of intuitions or exhibitions (the imagination) under the power of concepts (the understanding) (ibid.). It is important to bear in mind that the term object refers in this context not to a thing as it is in itself which is inaccessible but to that which appears to the subject within the limits of the human faculties of understanding and sensibility: for Kant, the objective, empirical world is only available to human experience as constituted by the subject. Nonetheless, Kants account of aesthetic response announces an interesting departure from the position he enunciated in the Critique of Pure Reason concerning the conditions under which experience is possible. There Kant had argued that since an appearance exists only in cognition, an appearance which is not an object of cognition is nothing at all (Kant, 1996, p. 167): that
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is to say, absolutely beyond experience. From the Critique of Judgement, however, it seems that there can be a pre-conceptual or non-conceptual experience of an object apart from its actual cognition (and the conceptual determinations which characterise cognition) that manifests itself in a feeling: the feeling of pleasure. The notion of the image is a crucial source of tension in Kants explanation of how this kind of experience could be possible. The image faces, so to speak, in two directions at once: vis-vis the disordered manifold of sensible intuitions, it performs the role of integration and synthesis; vis--vis the law of the concept, it asserts its freedom to elude or exceed. In Lacanian terms, the operation of the image in its rst guise equates to the mirror stage: it interposes against the chaotic ux of raw nature which cannot be experienced as such a representation which precedes and enables experience, but only by denying the chaos of the Real manifold and to that extent being inadequate and incomplete. This account of the image could, it seems to me, be useful in formulating a corporeal feminism that meets the concerns underlying the objections to essentialism. It exposes as illusory any model of sensate life as a given, universal substance that is immediately accessible to experience and immediately available as a basis for ethical or political judgement; but it also makes it possible to speak of the body as imaged: that is, to work with representations of embodiment that acknowledge their inadequacy to represent the real. Further, reading Kant in relation to Lacans account of the Imaginary and Foucaults account of body-formation, it becomes possible to say that these images are necessarily social, being formed in particular matrices of social understandings and material practices which inect them with signicance, including the signicance attached to sex. Thus regarded, Drucilla Cornells suggestion that we identify, through transference, with metaphors that invoke the feminine, and so assert both likeness and non-likeness to the extant constructions of sexual difference, can be re-interpreted as an invitation to work with and exploit the tension between images of the feminine as lived and their inadequacy to the Real. As has been shown above, however, Cornells commitment to deconstruction precludes her, qua postmodernist, from confronting the other face of the image: the face that it turns towards the law of the concept (viz. the normative order of positive law). From the perspective afforded by deconstruction, lawful determination of the image can only result in its subordination, and the suppression of the potential for new images to emerge in its place: the image and the law are thus radically at odds. In Kants account of aesthetic response, however, they enjoy a relationship of playful antagonism: the image produces a feeling of pleasure only to the extent that it is both amenable to a possible conceptualisation and irre-
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ducible to a concept, viz. where it reects a synthesis that is purposive without purpose or lawful without a law (ibid., p. 92). In terms of normative feminist jurisprudence, this can be read as expressing the recognition that, though potentially innite in their diversity and productivity, images of the feminine must be organised by reference to the turgid (Coole, 2000, p. 9) requirements of the expressive forms of politics and law in order to register in order, that is, to have any chance of producing a (political or legal) response. But further, Kant explicitly theorises that which validates this response. In claiming of an object this is beautiful, Kant argues, one supposes that the subjectively felt pleasure occasioned by the harmonious play of freedom (in imaging the manifold of sensible intuition) and lawfulness (in seeking to determine this image) is by rights communicable to or valid for everyone and demands that everyone ought to feel it. This supposition (and therefore the demand for agreement based upon it) is justied if the felt pleasure registers a common sense (a sensus communis) which, as such, can indeed be presuppose[d] in everyone else (ibid., p. 54) and so assumed to be universally and necessarily communicable even if not actually shared in a given instance. Here, then, Kant presents a model of universal validity which is not dependent on an absolute standard formulated from some Archimedean point beyond experience, for it inherently invokes the possibility of a realm of shared experience, accessed through a mode of feeling that, in being common, is irreducible to private caprice. Yet this shared realm is not given in advance: access to it is contingent both on an embodied experience of particularity and on an appeal for a consensus about its status which cannot be guaranteed, and one can never be sure that the ground of the feeling induced by an object of aesthetic contemplation is indeed a generalisable experience rather than a merely subjective whim. Thus, whereas the moral law obligates absolutely and command[s] that everyone approve (ibid., p. 126) a proposition of the form this is beautiful can only claim general assent. Claims of this form, then, are in Kants text fundamentally ambivalent: universal but partial; conceptual but indeterminate;33 necessary but contingent; and grounded by a sensus communis whose only possible index is an inherently unreliable feeling experienced through an actual encounter with an object of sensation. Although space does not permit its full elaboration here,34 I would suggest that a normative jurisprudence fully responsive
33 A judgement of [beauty] is based on a concept . . . but this concept does not allow us to
cognize and prove anything concerning the object because it is intrinsically indeterminable . . . and yet this same concept does make the judgement . . . valid for everyone, because (though each persons judgement is singular and directly accompanies his intuition) the basis that determines the judgement lies, perhaps, in the concept of what may be considered the supersensible substrate of humanity (Kant, 1987, p. 213). 34 See further Barron (2000b).
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to the preoccupations of postmodernist legal feminism might be developed through the elaboration of this model, a theory in which that most feminine of responses, feeling, is made the very condition of claims of legal right, though only to the extent that it is amenable to a possible universalisation. Feeling in this context, of course, should not be understood literally, but as indicating a precarious and fallible sense of which metaphors that invoke the feminine are both available and worthy to be afrmed in law. The difculties attendant upon universalising this sense are obvious: it cannot be grounded in reality; it rests on images of the feminine which cannot themselves be universal since they emerge from particular historical contexts and social formations; and it always necessarily awaits, even as it argues for, the agreement of others. Yet the horizon of that possible consensus of phenomenal subjects limited, alienated, and bounded by context though they are should be kept in view. For it is only against that horizon that politics itself the collective elaboration of relatively enduring structures and more or less shared norms is possible.
ACKNOWLEDGEMENTS Thanks are due to Anne Bottomley for her support and helpful suggestions, and to the referees selected by Feminist Legal Studies for their comments on an earlier draft.
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Law Department London School of Economics and Political Science Houghton Street, London WC2A 2AE Email: A.Barron@lse.ac.uk

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ANNE BARRON

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

PART II: T HE I MAGE ,

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

FEMINISM, AESTHETICISM AND THE LIMITS OF LAW

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