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Samuel A. Chambers
his essay enters into a set of somewhat abstract philosophical debates through the terms in which they have been recently
staged by leading thinkers in social and political theory.1 But it does
so in order to speak to very practical, some might even say banal,
political matters. Therefore, I want to open this essay rather unconventionally by beginning not with the outline of those philosophical
debates (I will come to them) but with a brief preface of sorts, one
that looks at a completely hypothetical but thoroughly recognizable
political example and attempts to read it in a number of speciWc and
distinct ways.
As an employee of the State of Maryland I receive a relatively
generous package of health care, retirement, and insurance beneWts.
These beneWts can be shared with my legal spouse and with my
dependents. In order to get them, however, the state asks in the former case for an ofWcial copy of a marriage license and in the latter for
an ofWcial adoption or birth certiWcate. In making employee beneWts
contingent on these basic legal requirements, Maryland follows the
majority of states (with a few key exceptions) in providing beneWts
only to straight married couples and their children. Let us assume
that a group of lesbian, gay, bisexual, transgender, and even gayfriendly faculty at my college decide to challenge this policy by
demanding from the college and thereby the State of Maryland the
same beneWts for lesbians, gays, and perhaps unmarried straights as
those received by married couples.
In all likelihood, such a demand for domestic partner beneWts will
be presented in the language of rights. Indeed, the language of rights
Cultural Critique 54Spring 2003Copyright 2003 Regents of the University of Minnesota
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I take my cues for both the title and the main argument of this
essaythat democracy today requires a ghostly concept of rights, an
understanding of rights as ghostlyfrom Jacques Derridas suggestion
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that the death of Stalinism may well mark the rise of the specters of
Marx. This argument develops the project of preserving a certain discourse of rights in the face of the powerful critiques launched in
recent years from both the left and the right.5 Conservatives have
argued that more and more claims for rights from supposedly disenfranchised groups actually turn out to be subversive attempts to
create special rights and unfair privileges for particular minority
groups. And radical thinkers have launched their own critique of the
discourse of rights, suggesting that more and more claims for rights
from the state tend only to consolidate state power, moralize rather
than politicize problems, and reinstantiate the very historical traumas for which the claim to rights sought relief.6 These critiques prove
to be substantively signiWcant both within the political sphere, where
challenges to special rights have proved both potent and effective,
and on theoretical terrain, where the logic of ressentiment calls into
question a great number of ostensibly democratic political practices.7
As a response to these challenges, I have chosen to develop
Ernesto Laclaus work on hegemonic politics. I aim my efforts speciWcally at applying (and thereby transforming) Laclaus rethinking
of the relation between universal and particular to the theory and
practice of rights. Laclau develops a logic of hegemonic articulations
in which the universal always emerges out of a particular political
demand. I suggest that rights must be interpreted as existing within
a set of discursive practices that make hegemonic articulations possible. In other words, a local political demand, when made in the language of rights, points toward a broader universal. Working through
this logic brings me to the conclusion that the viability of the discourse of rights in contemporary politics depends on conceptualizing
rights as empty signiWers. An empty signiWer is precisely that term
within a discursive practice that has the potential to be Wlled with
a signiWed content that gestures toward the universal. The discourse
of rights turns out to be a discourse of universalization, in which a
political groups particular demands achieve, through a hegemonic
articulation, the status of universal within a given political context.8
But how do we explain or account for the signiWcance of rights as
empty signiWers? What is the political efWcacy of reconsidering rights
through the logic of hegemony?
I wish to begin that accounting process in this essay. I will argue
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sexual difference serve only to indicate a normative orientation protected from challenge by remaining in the pure, formal realmreentrenching the very sexual norms that Butlers work so often seeks
to challenge (145).21 Her answer to this problem proves rather predictable, but not for that reason any less important: we must challenge sexual difference as a transcendental claim so as to oppose its
normative weight; we must expose the social functioning of the
term and seek to alter both its force and its implications (148). This
is not to reject sexuality or even sexual difference en toto but rather to
deconstruct its formalist presentation and pretension within Lacanian theory. It is precisely those pretensions that Butler emphasizes
in her critique of izek.
Butlers argument proves much more sympathetic to Laclau,
partially because she sees the potential of what we might call postformalism in his work.22 Despite this common ground, Butler and
Laclau clash on two points. SuperWcially, they seem to disagree on
what role the theory of Hegel might have to play in radical democracy.23 Their more signiWcant dispute emerges in Butlers opening
essay when she accuses Laclau ofsurpriseunsuspectingly falling
back on a formalism of language. Butler rightly notes that Laclau
develops his conception of empty signiWers out of Saussures formal
model of langue, which establishes all linguistic identities strictly
within a system of negative differences.24 Butler challenges the overly
formal emptiness of this particular concept of the empty signiWer and
questions its political efWcacy. The Saussurian approacheven given
Laclaus poststructuralist reading of Saussure25may separate a formal analysis of language from a description of its use and practice
within speciWc political contexts. Butler asks a signiWcant question
here with respect to my discussion of temporality to come: why
should we conceive of universality as an empty place which awaits
its content in an anterior and subsequent event? (34). Butler will
always insist on theorizing language in its discursive practice, not in
its formal structure.
Laclau responds by emphasizing, with the example of Barthes,
the very transformation of formal categories of language through
their application to contingent and always shifting social and political contexts. That is, there is no immutable formal structure of language, since the formal categories will be subject to revision through
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that they are far from offhand. And as I have suggested elsewhere,
the logic of the ghost, the reappearance of the specter, will always disrupt timeliness.26 What I am tempted to call the haunting of this text
suggests an approach to temporality that evades the very formalist
impasse in which the authors often Wnd themselves trapped. And
Butlers contributions, in particular, point decidedly to the signiWcance of the specter and the time of the ghost. The conversations
carried out in these exchanges often appear to be joined by more than
three interlocutors, and these ghosts prove fundamentally important
to the theory of rights. In beginning to build my own theory of rights,
I will try to summon these ghosts from their exchange.
On the Wrst page of her Wrst essay, Butler describes the politics
of hegemony as follows: democratic polities are constituted through
exclusions that return to haunt the polities predicated upon their
absence (11). This formulation appears innocent enough, but it translates modern democratic theory and practice into an effort to do away
with or silence ghostsor at the least, it founds modern democracy
on the false pretense that there really are no ghosts. And it makes radical democracy into a politics of the specter, since radical democracys
central concern rests with this return to haunt. In fact, I think it is
fair to characterize Butlers formulation of the universal/particular
relationon which both the larger project of radical democracy and
my smaller project on the discourse of rights both hingeas a
spectral one. Butlers articulation evokes the logic of the ghost, and it
preserves Laclaus insights into the politics of hegemony while simultaneously displacing the relation from the frame of formalism.
In trying to show the operation of what, following Derrida, Im
calling the logic of the ghost within Butlers text, I do not seek to
dismiss Butlers turn to Hegel. But I am concerned to show that what
this move serves to accomplish is not exactly a Hegelian reconceptualization of the concrete/universalsomething that Laclau himself cannot accept, and for which he therefore consistently criticizes
Butler. Instead, the reading of Hegels text allows Butler to bring a
dimension of radical temporality to bear on the theory of the universal/particular. Butler argues that Hegels critique of Kant performs
a split of universality into its ofWcial (i.e., formal) form and a spectral universality (23). Butler reads the contamination of the abstract
by the concrete through the logic of the ghost; the universal always
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formalist poles. The ghost that appears at a speciWc point and time
does indeed embody the particular, but at the same time the ghost
only appears by reappearing, by reiterating a past appearance.31 So
the specter always transcends any particular time and place and can
always reappear at other times and places. Time is out of joint. Thus
the ghost escapes conWnement to radical historicism and always
expresses a broader universalism. This is not a transcendental universalism but a spectral onenot an ontology but a hauntology.
izek demands that some dimension must prove more fundamental than the plane of radical historicism, and through this ghostly
approach to the problem of formalism we may wind up agreeing
with him, to a point. izek insists that there must be a historicity that
makes contingent historical formulations possible. The solution here
lies not with the Lacanian bar or the Lacanian Real, since each of
these theoretical constructs produces only a static, timely (thoroughly
ahistorical) variant of historicityone posited at an unchanging (and
as Butler would say, unrevisable) fundamental level. What we need
instead is an untimely conception of historicity. An untimely approach to history will allow us to move beyond both brute empiricism on the one hand, and end-of-history theses on the other. Butler,
I would submit, suggests very much the same approach when she
writes, we [must] rethink the meaning of history beyond both positivism and teleology (138). Butler insists that she can Wnd in Hegels
writings much more than an end-of-history claim: the Phenomenology, for instance, operates according to a temporality that is irreducible to teleology (172). Again, what we need is not an ontology
but a hauntology.
Hauntology hints at foundations in much the same way as hegemony hints at universals. A hauntology is the condition of (im)possibility for ontology. It is both that radical temporality that even
Heidegger says makes ontology possible and also that which draws
the internal limits of ontology (something Heidegger never mentions).
Derrida describes hauntology as follows: this logic of haunting would
not be merely larger and more powerful than an ontology or a thinking of Being. It would harbor within itself, but like circumscribed
places or particular effects, eschatology and teleology themselves. It
would comprehend them, but incomprehensibly.32 Hauntology emerges
only by reworking ontology through the logic of the ghost.
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reply. And this is probably just the reason that Butler asks the question in such seemingly simple terms, even though she herself goes on
to show that there is no straightforward answer. The point is not
then to answer these questions but to permit them an opening, to
provoke a political discourse that sustains the questions and shows
how unknowing any democracy must be about its future (41). Butlers response highlights the untimeliness of democracy, as it gestures
toward la-venir. My own response centers on the notion that within
the rather untimely terms of radical democracy we can only think
rights as ghostly rights.
The phrase ghostly rights calls to mind, simultaneously, two
important movements of thought. It suggests the need to theorize a
concept of rights through the logic of the ghost, while it also implies
a reconsideration of rights as themselves spectral. I already focused,
at some length, on this Wrst notion as I tried to show that any viable
theory of rights in contemporary politics requires a move beyond the
formalist dilemma, but I still need to demonstrate that the logic of the
ghost enables this very shift. In this Wnal section I wish to focus more
closely on this second notion. What does it mean for a right to be the
right of ghost? And to what would the political productivity of such
a notion amount?
Derrida argues that a belief in ghosts or the ghostly must always
call into question our assumptions about the difference between the
real and the unreal. The decision to grapple with ghosts must be
anathema to the scholar:
[T]here has never been a scholar who really, and as scholar, deals with
ghosts. A traditional scholar does not believe in ghostsnor in all that
could be called the virtual space of spectrality. There has never been a
scholar who, as such, does not believe in the sharp distinction between
the real and the unreal, the actual and the inactual, the living and the
non-living, being and non-being.34
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closely, suggests we think more critically about the effects that the
pursuit of this strategy has both on the lesbian and gay movement in
general and on rights in particular. The strategy for the right to gay
marriage bundles together a whole host of rights, privileges, and
responsibilities, including adoption, health care, inheritance, hospital
visitation, and tax breaks. But we can also see a rather dark underside
to this shift:
[T]he successful bid to gain access to marriage effectively strengthens
marital status as a state-sanctioned condition for the exercise of certain
kinds of rights; it strengthens the hand of the state in the regulation of
human sexual behavior; and it emboldens the distinction between legitimate and illegitimate forms of partnership and kinship. (176)
This exacerbation of the illegitimate/legitimate distinction has signiWcant and insidious effects. It increases the normalizing power of
marriage. If gay marriage actually increases state power over the regulation of sexuality and if it ties a large number of fundamentally important rights to the institution of marriage, then marriage becomes
much more than simply a right; it becomes a disciplinary institution
(which, of course, it already is to begin with). Warner formulates
this point in succinct yet powerful terms: as long as people marry
the state will continue to regulate the sexual lives of those who do
not marry.41
There seems to be no doubt that, contrary to the intuitive belief
that rights are always a good thing, the right to marry is haunted.
There is nothing neutral about the strategy to seek the right to marry;
it has signiWcant spectral effects. Successfully achieving the right to
marriage will effectively bar lesbians, gays, certain single persons,
and nonmarried straights from access to a long list of other rights,
since all those rights that are bundled into the institution of marriage
will now be open to all. That is, they will be open to all who are
able to and choose to enter into the institution of marriage, an institution that will now have the potential to bestow beneWts on gays and
straights alike. But those gays who seek the association of marriage
will now be severing their ties to other groups and individuals whose
sexual lives made them queer with respect to the sexual norm. The
lesbian/gay alliance with these people . . . is broken by the petition
for marriage (Butler, 176). Moreover, gay marriage does not challenge
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be fought piecemeal on a number of different fronts, with no guarantees of victory and no assurances that victory, if won, will be permanent. But the struggle is now one to be waged on the terrain of
hegemonic politics. Thus, this is still a battle for rights, but it takes up
a strategy that accepts the spectral quality of rights. It rejects the one
single, universal goal of the right to marrywhat Laclau would
call an effort at a Wnal suture of the socialand works on universalizing a number of particulars. It tries to preserve the possibility of
allowing the spectrally nonhuman to participate in the universal in a
future-to-come, la-venir, through new legal arrangements and different structures of kinship. The pursuit of ghostly rights must always
remain open to these democratic futures.
My conclusion can be stated rather brieXy by way of a crude
reformulation of this sections heading: only an insistence on the
spectrality of rights can keep alive the possibility of afWrming the
rights of the specter. And the rights of the specter can only be sought
through a strategy that confronts and seeks to undermine the norm,
through the reiteration of sexuality beyond the dominant terms
(Butler, 177). This is precisely a politics of hegemony. In other words,
the theory of ghostly rights that I have worked to articulate here
provides an adequate account of the spectral remainder and insists
on maintaining that openness to la-venir necessary for the project
of radical democracy to be both meaningful and, possibly, successfulwhich does not, indeed cannot, mean that the project could ever
come to a Wnal end. Here I return to Butlers initial formulation of
radical democracy as a project that is politically effective precisely
in so far as the return of the excluded forces an expansion and rearticulation of the basic premises of democracy itself (11). A theory of
rights proper to the project of radical democracy and, I would suggest, a viable theory of rights for contemporary politics in general must
respond to previous hauntings, it must be able to await the return of
the specter, the revenant whose appearance is always a reappearance.
Notes
For helpful comments, criticisms, and suggestions on earlier drafts of this essay,
I owe debts to Iris Marion Young, Lisa Disch, Patrick Finn, and Rebecca Brown. I
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also thank the St. Marys summer writing group, and two anonymous reviewers
for Cultural Critique.
1. The debates may be safely called abstract because the languages of
psychoanalytic, poststructuralist, and Marxist-Gramscian theory prove rather
rareWed, but I use the word precisely because so many of the writers within these
debates call into question any simplistic distinction between, on the one hand,
plain and simple language or common sense and, on the other, specialized language or jargon.
2. Of course, the issue here could also be framed as one of equal pay, particularly with respect to educational institutions since Title IX forbids discrimination on the basis of marital status. If enforced to the letter it would prohibit
the granting of unequal beneWts packages to the married and nonmarried. This
approach to the problem of rights would also avoid the entire framework of identity politics. My thanks to an anonymous reviewer of Cultural Critique for sharing
this important insight.
3. Jacques Rancire deWnes this claim by those who have no claim as the
very essence of politics. See his Disagreement: Politics and Philosophy, trans. Julie
Rose (Minneapolis: University of Minnesota Press, 1999).
4. Jacques Derrida, Specters of Marx: The State of the Debt, the Work of Mourning, and the New International, trans. Peggy Kamuf (New York: Routledge, 1994), 4.
5. Initiated in Giving Up (on) Rights? Currently under review for publication in the American Journal of Political Science.
6. Wendy Brown articulates this argument most cogently and forcefully.
See her States of Injury: Power and Freedom in Late Modernity (Princeton, N.J.:
Princeton University Press, 1995).
7. See Browns States of Injury, where she uses Nietzsches logic of ressentiment critically, as a tool of leverage for broadening our conception of democratic
practice. She is particularly concerned with the limited space of freedom offered
by liberal pluralism.
8. Although I will not pursue the distinction in any detail here, it seems
prudent to note the possible gap between universal and particular that is mapped
by the difference between human rights and civil rights, respectively. Talal Asad
provides an illuminating discussion of Malcolm Xs appeal to human rights as a
critique of the American civil rights movement. See Asads What Do Human
Rights Do? An Anthropological Enquiry, Theory and Event 4, no. 4 (2000), at
http://www.press.jhu.edu/journals/theory_&_event, where he cites Malcolm X,
The Ballot or the Bullet, in Malcolm X Speaks: Selected Speeches and Statements, ed.
G. Breitman (New York: Grove Press, 1990).
9. Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Paton (New
York: Harper, 1964), 55; emphasis added.
10. Kant, Critique of Pure Reason, trans. Norman Kemp Smith (New York: St.
Martins Press, 1965).
11. Kant, Groundwork, 79.
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12. Kant, On the Proverb: That May Be True in Theory, But Is of No Practical
Use, in Perpetual Peace and Other Essays, trans. T. Humphrey (Indianapolis: Hackett,
1983), 71; quoted in Habermas, Between Facts and Norms: Contributions to a Discourse
Theory of Law and Democracy, trans. William Rehg (Cambridge: MIT Press, 1998), 93.
13. This starting point is also rejected by the discourse theory of democracy,
which always insists on a postmetaphysical concept of reason. See Habermas,
Between Facts and Norms, as well as note 29.
14. Often this ground turns out to be a seemingly pragmatic, but not, for
that reason, any less dogmatic variant of humanism. Here I would cite the work
of George Kateb, who adamantly defends a theory of rights-based individualism
(particularly in the face of utilitarian or communitarian challenges) on the
grounds that only a theory of rights can fully honor human dignity. Kateb writes,
why make so much of human dignity? I do not Wnd much to say. Im not even
sure that much should be said. Kateb runs short of words just as his theory runs
into the bedrock of humanism, but if postfoundational political theory has accomplished anything, it lies in a demonstration of the important political (indeed,
democratic) necessity of questioning even these grounds, at least for the sake of
opening them up to democratic contestation. See Kateb, The Inner Ocean: Individualism and Democratic Culture (Ithaca, N.Y.: Cornell University Press, 1994), 4.
15. This last formulation, of course, expresses the difference between right
and rights. Obviously Thrasymachuss doctrine seeks to assert that moral right or
justice is only the expression of the strongest or of those in power. But the formula
still applies, across time and space, to a cultural relativism of rights, since the latter tells us that rights must be explained only as the practices of particular communities, suggesting that in some communities those in power grant rights to
citizens and in some they do not. This turns rights, which are meant to be claims
against power, into the product of the powerful. The mighty therefore make right
and give rights.
16. Judith Butler, Ernesto Laclau, and Slavoj izek, Contingency, Hegemony,
Universality: Contemporary Dialogues on the Left (London: Verso, 2000). Hereafter,
all references to this work will appear parenthetically in the text with page number and, where necessary, author.
17. Unlike the issue of formalism that constitutes the key topic for debate,
postfoundationalism serves as an implicit and governing assumption of that
debate.
18. The humor is, of course, not lost on the authors themselves, whose styles
and tone in this volume seem to create a unique mix of criticism and collegiality.
This approach allows them to forward powerful substantive challenges to one
another while still never taking themselves too seriously. Butler, in particular,
makes explicit mention of this comedy of formalisms (137).
19. The move beyond formalism proves crucial, in other words, because if
thinking rights through the logic of hegemony as empty signiWers just means seeing them as formal a priori structures, then this conception turns out to be no
more helpful than contemporary weakened variants of natural rights theory.
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20. Butler repeatedly accuses izek of, at times, using Hegels philosophy
itself as a formalist schemaclearly a signiWcant misreading from Butlers perspective since it must overlook one of Hegels most important contributions to
modern thought. Butler makes reference to izeks tendency to render [Hegel]
compatible with a Kantian formalism on more than one occasion. She cites
izeks Tarrying with the Negative in support of this assertion, although in the limited space of these exchanges she offers no actual reading of that text. See izek,
Tarrying with the Negative: Kant, Hegel, and the Critique of Ideology (Durham, N.C.:
North Carolina University Press, 1993). But for her most focused attack on izeks
work, Butler targets not Hegel but Lacan. This is not the Wrst time that Butler, who
quite clearly appreciates both izeks contributions to Lacanian theory and his
work as a searing social critic (27), has called izek to task for his commitments
to Lacanian doxa (6); she devotes an entire chapter of Bodies That Matter to formulating a sympathetic, but no less piercing critique of izeks appropriation of
the Lacanian Real. In that work Butler vigorously questions izeks insistence
that the Lacanian Real remains utterly prior to the symbolic realm and therefore
outside of the realm of contingency and revisability. By precluding the Real from
social and political critique, izek reiWes the heterosexual injunctions of the Oedipal scenario by inscribing them into the Lacanian law. See Bodies That Matter: On
the Discursive Limits of Sex (New York: Routledge, 1993).
21. In her work on Antigone, Butler continues this critique by engaging
directly with the narratives that ground much of psychoanalysis; she challenges
the formalism of Lacanian doxa, for example, by asking George Steiners question, what would happen if psychoanalysis were to have taken Antigone rather
than Oedipus as its point of departure? See Butler, Antigones Claim: Kinship
between Life and Death (New York: Columbia University Press, 2000); and George
Steiner, Antigones (New Haven, Conn.: Yale University Press, 1996).
22. Butler and Laclau develop a very productive dialogue on the similarities
in their thinking of hegemony, particularly the shared afWnities between Laclaus
concept of chains of equivalence and Butlers notion of cultural translation.
Both are efforts to articulate the universal dimension of politics from within particular realms.
23. Their dispute on this point is less noteworthy or substantive than it
might appear, because each author seems to take Derridas deconstruction of the
Hegelian Aufhebung quite seriously. Laclau reads that deconstruction as a critique
and repudiation of Hegel: Hegel interprets all antagonism between the concrete
and the abstract as reconciliation (sublation) when we should be reading it as contamination (192), while Butler takes that deconstruction to inaugurate a new
Hegel, one whose own text allows for the possibility of contamination in what
appears to be only reconciliation. In other words, Butlers Hegel has already been
deconstructed by Derrida; thus, hers is a much more radical Hegel, whose texts
are full of potential. When it comes to the actual relationship between the abstract
and the concrete, Laclau and Butler end up saying almost precisely the same
thing; they only differ on whether a notion of the abstract as contaminated by the
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concrete proves to be an idea that refutes Hegel or one that can be found in
Hegels own text (Butler, 39; Laclau, 193). And at the end of these exchanges,
Laclau himself says as much: I do not object to the language games that Butler
plays around Hegelian categories, so long as it is clear that, in playing them, she
is clearly going beyond Hegel (296). Butlers Wrst book has been republished
with a new preface by the author centering on the role and relevance of Hegel
in contemporary theory. See Subjects of Desire: Hegelian ReXections in TwentiethCentury France (New York: Columbia University Press, 1999). For Derridas reading
of Hegel, see his Glas, trans. John P. Leavey and Richard Rand (Lincoln: University
of Nebraska Press, 1986).
24. Laclau goes on to push this Saussurian approach in the direction of Derridas deconstruction when he asks questions about the limits of the system of
signiWcation. Within this system of negative differences, the universal can only
emerge as the external limit to the system of signiWcation. Laclau, Why Do
Empty SigniWers Matter to Politics? in his Emancipation(s) (London: Verso Press,
1996), 40.
25. And here I have to agree fully with Butler, although it is rather ironic to
see her making the same observation about his reading of Saussure that might
well be made by Laclau about her reading of Hegel. The system of signiWcation
as a system of negative differences is no doubt a part of Saussures text, but the
idea that the limit to that system of signiWcations sets in motion the very systematicity of the system is something difWcult to develop without the help, again,
of Derridas reading of Saussure. See Derrida, Of Grammatology, trans. Gayatri
Spivak (Baltimore: Johns Hopkins University Press, 1974).
26. For an elaboration on the logic of the ghost, see my Spectral History,
Untimely Theory, Theory and Event 3, no. 4 (2000), at http://www.press.jhu.edu/
journals/theory_&_event.
27. Linda Zerilli, The Universalism Which Is Not One, Diacritics 28, no. 2
(1998): 320.
28. Toward the conclusion of these exchanges, Laclau himself seems to
accept a modiWcation of his appropriation of empty signiWers for the theory of
hegemony. He writes, there is not, strictly speaking, a signiWer which is truly
empty, but one which is only tendentially so (304).
29. On the surface, it might appear at this point that the move my argument
is takingto reject a Kantian (formalist) understanding of rights by bringing in a
dimension of temporality oriented toward the futuremirrors the recent work of
Jrgen Habermas, particularly his effort to apply discourse theory to law and
democracy in Between Facts and Norms (BFN). After all, Habermas rejects Kants
subordination of rights to the moral law just as he has clearly insisted (at least
since Remarks on Discourse Ethics) on a postmetaphysical concept of reason
(one not grounded on religious or metaphysical worldviews). Thus, he clearly
wishes to avoid an empty formalist thinking of universality when it comes to
the question of rights. Habermas goes on to insist that political autonomy be
founded on the internal connection between popular sovereignty and human
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rights (BFN, 101). And he locates this internal connection in his discourse principle: the sought for internal connection between popular sovereignty and human
rights lies in the normative content of the very mode of exercising political autonomy,
a mode that is . . . secured . . . only through the communicative form of discursive
processes of opinion- and will-formation (BFN, 103). In other words, communicative action itself becomes the ground for rights or, as Habermas himself puts
it, a logical genesis of rights (BFN, 121). Emphasis in quotations is in the original.
Moreover, this internal connection that overcomes the impasse between liberals and civic-republicans only exists in the dimension of time. Habermass recent
Political Theory article elaborates on this particular pointone already implicit in
Between Facts and Norms. He writes, this internal connection between will and
reason can develop only in the dimension of timeas a self-correcting historical
process (Constitutional Democracy, 768). Habermas makes the apparently
postfoundational (thereby postmetaphysical) argument that neither universal
human rights nor a particular political communitys popular sovereignty can
be the ultimate ground for democracy. Instead, the apparent regress merely
expresses the future-oriented character, or openness, of the democratic constitution. Habermas calls this a tradition-building project that produces the selfcorrecting learning process of democratic societies. There is no vicious circle
between popular sovereignty and human rights precisely because democracies
have this self-correcting temporal-historical dimension built in, as it were. Thus,
with Habermass application of discourse theory to democracy, we have a rejection of the Kantian conception of rights inextricably linked to a temporal dimension, indeed, a future-oriented temporal dimension.
However, rather than offering a complement to the conception of ghostly
rights that I develop here and in the text following, Habermass current application of his theory of communicative action actually provides the perfect counterexample for my theory of rights. Habermass understanding of democracy
maintains a temporal dimension, but it is by no means ghostly or untimely.
Indeed, Habermas offers us a clear case of a linear, timely conception. As Bonnie
Honig powerfully illustrates in her response to Habermas, his understanding of
time proves to be thoroughly linear and progressivist. He robs democracy of the
very open-ended character he points to by tying democratic citizens to a speciWc
tradition in the past, and placing on their shoulders the responsibilities of unfolding this tradition in the future. She asks, In what sense is Habermass gesture to
futurity meaningful if that future is always already known to be governed by
progress? In what sense can the people be said to be learning from their experience if their learning process is said to be self-correcting? (Dead Rights, Live
Futures, 795). In going on to stress the democratic importance of questioning faith
in progress, Honigs critique of Habermas does gesture in the direction of the theory of ghostly rights that I try to outline here; for the purposes of my argument,
her critique shows quite clearly why adding a temporal dimension to democracy
is not nearly enough to produce an untimely or ghostly conception of rights. The
live futures that Honig says we must maintain in order to invigorate democratic
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activism are precisely the ghostly futures that I try to describe here. For the
Habermas and Honig articles, see Political Theory 29, no. 6 (2001): 76681 and
792805, respectively.
30. Again, this is why merely considering a dimension of time does not get
one around formalism or allow one to arrive at an untimely theory of rights.
31. Derrida argues that the ghost is always a revenant, one who appears only
by reappearing: a specter is always a revenant. One cannot control its comings
and goings because it begins by coming back (Specters, 11; emphasis in original).
32. Ibid., 10.
33. For example, in insisting on the necessity of locating the very ontological condition of historicity (18687), Laclau gestures in the direction of the very
hauntology that I am working through here. For his part, izek points to Kant,
who he says implicitly outlined a theory of the structural necessity of ghosts
(235). izeks more recent work meditates at greater length and depth on the
question of ghosts. See The Fragile Absolute (London: Verso, 2000).
34. Derrida, Specters, 11.
35. As Derrick Bell has recently put it, rights dont really exist if youre
not willing to stand up for them. Bell, RedeWning Racial Issues for the Next
Decade, speech given at St. Marys College of Maryland, February 6, 2001.
36. To a certain extent, William Eskridges The Case for Same-Sex Marriage:
From Sexual Liberty to Civilized Commitment (New York: Free Press, 1996) operates
on precisely the same level, particularly when he makes the constitutional argument for same-sex marriage.
37. Derrida, Specters, 11.
38. For one angle into this issue, see In Campaign, High Court Is High on
the Agenda, at http://washingtonpost.com/wp-dyn/articles/A6696-2000Jul8.
html (accessed January 10, 2001).
39. We can also follow out one other crucial implication of this line of logic:
rights are the last thing that can be assimilated to a formal or historicist logic,
even though the history of political thought is marked by efforts to assimilate
them to both models (through natural rights and cultural relativism).
40. Among others, including Butler herself, see especially Michael Warner,
The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life (New York: Free
Press, 1999).
41. Ibid., 96.
42. Ibid., 82.
43. SpeciWcally, the court upheld antihomosexual sodomy. An ironic and
more obviously homophobic decision, given that the Georgia law in question
outlawed all anal and oral sex, with no mention made of sexual orientation.
44. And as bit of a side note, I would point out here that the so-called marriage tax penalty, which is said to unfairly and unduly burden married couples,
has only become a burden because the structure of the family has changed. In
other words, current tax law with respect to marriage actually beneWts married
couples and it beneWts precisely the vision of the family that many conservatives
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still hold dear. The 1950s suburban household in which the husband works and
the wife stays home still receives tax beneWts from the current law: the husbands
standard deduction is higher since he has a wife. And this tax law therefore still
serves a certain 1950s-era disciplining function in that it encourages single men to
take a wife. The problem, as we all know, is that there are no longer that many
1950s households around, and the current law does not beneWt married couples
in which both partners work outside the home.
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