Bro/l'N

CR I TI CAL T H EO RY LE FT POL I T I CS·

C> /-I,dl<,l'.
Edil"rs WENDY BROWN & JANET HALLEY, EDITORS
In recent decades, left political projects in the United St:ucs CONTRIBUTORS
halT t.1ken a strong legalistic turn. From affirmative action
to protection against sexll;ll harassment, from indigenous Lwrell Berl'1II1
peoples' rights [0 gay marriage, the struggle ro e1imin;He LEFT · LE G A L ISM / LEF T C ITIQUE
subordination or exclusi on and ro achieve substantive W'ulldy Rru/l'1l rr1
equ:t!ity has been waged through courts ;lJ1d IcgisLHioll. At ."
the same time, critiques o f legali sm have generally come to jlldith Butler
be rega rded by liberal and left tefo rmers as politically irrel- -I
(nnt ar best. politically di sull ifr ing .lnd disorienting ;u Drucill,/ CU rl/eli
wurst. This conjunction of a turn towa rd lefr legalislll lVith r-
a (Urn away from critiqul' h;ls h;lrden ed an im el lectl"llly
ddcn£ive, brittle, and unre flective left sensibilitv ;It ,1
Ri./J.ml T Furd rr1
moment when preciscl)' the opposite is needed. Certainly, K,ltherille M. Fr,1II/;:e C)
the left can engage str.:ltegically with the !JIV, but if it docs
nor al so track the effects of thi s engagement-effects that jalll!t H,liley l>
often exc eed or esel1 redound ag;linst its explicit ;lilllS-i t
will ul1lvittil1gl y fu qc r politiccll institutions and doctrines
strikingly at odds with its own values.
Wendy Brown and Janet HaileI' have assembled eSS;lYS
ALlr/;: Kc:!lIIall

D,IL'id KClll ledy

-
r-
(I)
from dilTrse contributors-law professors. philosophets,

--r-
political th eo ri sts, <llld lite"uy critics-united chieny by DllI1eall Kcn nedy
their willingness to think criticall,' from the left about left
legal proj ec ts. The essays them selves vary by topic, by the- Gillian Lester
oretical approach, and by conclusion . While some contrib-
utor s attempt to rework particulat left legal projects, others Ivlichael Warn er ITI
insist upon abandorTirTg o r repbcing those projects. Still
others lea vc open the qu est ion of what is to be done as the y ."
devote their critical attention to understanding what we arc -I
doing. Above all, Left Ll'galislI1 / Left Critique is a rare con-
temporary argument and model for the intellccr ually exh il-
n
arating and politically enriching dimensions of left cri-
::a
Cover im.l,!.:,":: Quint P>l h.. l\ hol /.

-
tique-dimension s rhat persis t everT, and perhaps es peciall y, Der .\elirjn;:a, n S;ln ...... lllh:i

when critique is unsure of the intellectual and political pos- ;\(; Zunch 2.001

-
sibilities it may produce.
-I
Wendy Brown is Professor of Political Science and Wom en 's DUKE UNIVERSITY PRESS

Studies at the Universi ty of California, Berkeley. She is the BOX 90660 /:)
author of States of Injury: Power and Freedom in Late
,V(odemity.
DURH."' , NC 27705 -06 6 0
c:
Janet Halley is Professor of LlIl' at H 'H vard Lalli School. She Q·.o?lJ · I .... 6· 'i
rr1
is the author of Do,,'I: A Reader's Guide to the ,\ Vlit,lry's
ilnti-Gay Polic)" publi shed by Duke University Press.
IIIIII111111
9 7808 22 3296 8 8 DUKE
 CONTENTS

Acknowlcdgmenrs I vii

Wendy Brown and Janet Halley

1ntroduction I 1

Richard T. Ford
Beyond "Difference": A Rductant Critique of Legal 1dentity Politics I 38

Janet Halley
Sexuality Harassment I 80

Lauren Berlant
The Subject of True Fecling: Pain, Privacy, and Politics I ro 5

Mark Kelman and Gilllan Lester

© 2002 Duke Universiry Press AIl reserved 1deology and Entitlement 1134
Printed in rhe Unitcd Sta tes of Ameriea on aeid-frec paper 1>0
Designcd by Rebeeea M. Gimenez Typeset in Sabon by Duncan Kennedy
Keystone Typesetting, lne. Library of Congress Cataloging-in- The Critique of Rights in Critical Legal Studies 1178
Publieation Data appear 011 the ¡ast printed page of this book.
"Sexuality Harassment." Copyright © 2002 by Jal1et Halley. "ls Kinship Judlth Butler
Already Heterosexual?" Copyright © 2002 by Judith Butler. 1s Kinship Always Already Heterosexual? 1229
 421 S UFFERIN G T H E PAR A oo XE S o F RIGHT S

what its hidden cruelties are, what unemanciparory relations of power

it conceals in its sunny formulations of freedom and equality. Indeed,
Spivak's grammar suggests a condition of constraint in the production of
WENDY BROWN our desire so radical that it perhaps even turns that desire against itself,
foreelosing our hopes in a language we can neither escape nor wield on our
Suffering the Paradoxes of Rights own behalf. Patricia Williams refigures this condition of entrapment as one
that might be negotiated through drama tic catachresis. Forcing rights out
of theír usual ruses of abstraction that mystifies and universalism that ex-
eludes, she insists that we procure them for "slaves ... trees ... cows ...
history ... rivers and rocks ... al! of society's objects and untouchables."l
Albeit in a very different register, Drucilla Cornell argues in parallel with
WiIliams, insisting that women's right to "mínimum conditions of indi-
viduation," and in particular to an imaginary domain in which a future
anterior is not beyond women's grasp, is the surest way ro finesse the trade-
It is hard ro acknowledge that liberal individualism is a violating enablement. off between Iiberty and equality that liberal rights discourse is generally
- Gayatri Chakravorty Spivak, Outside in the Teachíng Machine thought to force. 3 Yet even in Williams's and Cornell's critical yet uhi-
mately utopian rapprochements with rights discourse, there is a tacit con-
This essay does not take a stand for or against rights, but rather, seeks fession that recalls Spivak's own weary recognition of the historicallimits
ro map sorne of the conundrums of rights for artículating and redressing of our political imagination. If we are constrained to need and want rights,
women's inequality and subordinatíon in liberal constitutional regimes. do they inevitably shape as well as claim our desire without gratifying it?
The essay responds to the question po sed by the organizer of an American Given the still precaríous and fraught conditions of women's existence
Philosophical Association session as that session's tide: What is the value of in a world ordered by a relentless construction and exploitation of sexual
rights language for women? An impossible question in many ways, espe- difference as subordination, certainly rights appear as that which we can-
cially when it is uninflected by historical, polítical, or cultural specificity, 1 not not want. Qur relative reproductive unfreedom; oue sexual violability
nevertheless tool< it as an opportunity to consider, at a very generallevel, and objectification; the highly exploitable character of much of our paíd
the difficult relatíon between select contemporary feminist ambitions and and unpaid labor; our vulnerability to losing our children, means of subsis-
rights discourse in the United States. There 1S a certain political immediacy tence, and social standing when we resist compulsory heterosexuality - all
to the study oí this relation, given the transposition of venue from the of these require redress if we are not only to survive in this worId but amass
streets to the courtroom of many social movements over the past two de- the strength and standing to create a more just one. And the panoply of
cades. If much of the struggle against male dominance, homophobic prac- rights women have acquired in this century-to vote, work, and divorce; to
tices, and racism now dwells irretrievably in the field of rights claims and keep our children when we deviate from sexual norms; to not be sexually
counterelaims, what are the perils and possibilíties of this dwelling? harassed at work and school; to have equal access to jobs and be paid equal
sums for the work we do side by side with men; to prosecute sexual violence
• without putting our own sexuallives on trial; to decide whether, when, and
Speaking for the disenfranchised in loose cross-cultural fashion, Gayatri how we wiJI have chíldren; to be free of violence in our homes-these are
Spivak depicts Iiberalism (and other moderníst emancipatory formations) things we cannot not want. And if these acquísitions remaín tenuous and
as "that which we cannot not want."l This from a Derridean Marxist partial, then surely procuring and pressing our rights to them can only abet
postcolonial feminist critic keenly aware of what Iiberalism cannot deliver, the process of making them more certain possessions.
 1.
424 W EN DY B ROW N 425 S U F F E R I N G T H E PAR A D O X E S O F R I G H T S

dressed. This is a recurring problem not only in the polítical and legal tend to reinscribe heterosexuality as deflning both what women are and
debates concerning pornography, where it has been extensively rehearsed, what constitutes women's vulnerability and violability. This problem
but in sexual harassment law and numerous corners oí divorce and custody emerges whenever it seems that "woman's dífference" must be addressed.
law. What understanding of the interconstitutive powers of gender and Indeed, gender tends to be treated as synonymous with heterosexualíry in
sexuality is lost when sex discrimination (as sex harassment) is cast as the law, not only because most "gender issues" are framed in terms of
something that women can do to men? On the other hand, what presump- heterosexual women, but also because sex and sexualiry are treated as two
tion about women's inherent subordination through sexuality is presumed different bases of discriminatíon. The framing of reproductive freedom
if sexual harassment is understood as a site of gender discrimination only primarily in terms of accidental and unwanted pregnancy-the need for
for women? What do women lose-in economic standing and custody abortion - represents the flrst problem; conventional codes of nondiscrimí-
claims-when we are treated as equals in divorce courts, and yet what natíon, in which gender and sexual preference are distinct and unrelated
possibility of becoming equals - of sharing responsibility for child rearing ítems in a list, represent the second. Of course, legal reformers working
with men and of having equal potential for earning power-is forfeited if on behalf of gay and lesbian rights have actively sought reforms in laws
we are not treated as equals in this setting? Similarly, if sorne women expe- pertaining to chíldbearing, adoption, and custody by homosexual parents,
rience pornography as a violation and others maintain that it is sexual and have struggled as wel1 to make visible homophobic harassment in
prudishness, shaming, and regulation that constitute their unfreedom, schools and workplaces, but this only reaffirms the extent to which these
what does it mean to encode one or the other perspective as a right in the issues, deflned as gay and lesbian issues, are understood as separate from
name of advancing women's equaliry? Hate speech legislation has pre- the project of securing women's rights. The problem here is not just that
sented a parallel dilemma: whereas Mari Matsuda ínsists that hateful racÍst heterosexualiry continues to be naturalized and normalized by these moves
speech is "shattering" and "restricts its victims in their personal freedo m" while other sexualities are marginalized, but that the extent to which the
and Charles R. Lawrence 1II claims it is equivalent to "receiving a slap in category woman is itself produced through heterosexual norms remains
the face," Henry Louis Gates and others claim a different experience of completely untouched by this approach. In sum, the process by which
racial invective and fear its legal restriction more than its circulation. 6 In the women become women, by which both woman as signifier and woman as
pornography dilemma and the hate speech dilemma, two related problems effect of gender power is produced and sustaíned, is eschewed and thereby
emerge: flrst, how to restrict hateful speech or pornography in the name of reinforced by the heteronormativiry of most women's rights projects. Put
equaliry and through civil ríghts discourse without, on the one hand, in- more generally, the rights that women bear and exercise as women tend to
scribing certain victims of hatred as its permanent victims (Le., as perma- consolidate the regulative norms of gender and thus function at odds with
nently hatable) and without, on the other hand, making all persons equally challenging those norms.
viable as victims of such speech, thereby forfeiting a polítical analysis that This problem emerged in a complexway in the case heard in I997 bythe
recognízes the speciflc function of hateful epithet in sustaining the subor- Supreme Court on same-sex sexual harassment, in which aman claimed
dinatíon of historically subordinated peoples. In other words, how can that he was repeatedly subjected to sexual harassment on the all-male off-
rights be procured that free partícular subjects of the harms that porn, hate shore oil rig where he worked. The plaintiff in Oncale V. Sundowner Off-
speech, and a history of discrimination are said to produce without reifying shore Services argued that same-sex harassment ought to constitute dis-
the identities that these harms themselves produce? Second, how to navi- crimination, whereas the defense argued that aman harassing another man
gate the difficulty of differences within marked groups: this woman feels could not constitute gender discriminatíon, either beca use there was no
oppressed while that one feels liberated by pornography; this black person gender difference between the parties or because there was no way to estab-
is shattered, that one almost indifferent to racial invective; one gay man ís lish that the victim had been harassed because of his gender. (If there had
devastated by homophobic slurs, another speaks them. been women on the oil rig where the harassment occurred, the defense
A second, related dilemma is that rights procured specifically for women argued, perhaps the putative harasser would have treated the women in the
426 WENOY 8 ROWN 427 S U FFER I NG T H E PAR A D oXES oF R 1G H T S

same way.)? The questions raised by this argument, indeed by the Supreme power, has been one of the most severe impediments to the development of
Court Justices themselves, are many: Does gender discrimination transpire a racially inclusive feminism, a feminism that does not require an analytic
only when women and men are treated differently, even if both can be sexu- or political distinction between feminism and the experiences oí women of
ally humiliated or subordinated? Is there no sexual harassment, or simply color. Yet within civil rights law, it is nearly impossible to feature subjects
no gender discrimination when one humiliates both women and men? marked by more than one form of social power (race, gender, age, sexual
Does sexual harassment, defined as gender discrimination, not exist if it is orientation, disability) at a time. Not only must plaintiffs choose a single
equally deployed against both women and men by a single agent (i.e., are basis on which discrimination occurred, but the widely divergent modali-
bisexuals inherently incapable of committing the act of sexual harass- ties of power through which racialized, gendered, and other dimensions
ment)? Does sexual harassment as currently defined in the law then depend of subject production (and injury) are achieved means that even well-
on the sexual orientation of the putative harasser? The confusions in this intentioned críticallegal scholars tend to focus on one form of social power
case suggest, among other things, a disadvantage in the move to cast sexual at a time, or at best, sequentially.9
harassment as gender discrimination if gender discrimination is something Here is the central paradox constitutive of this problem, On the one
that can happen to anyone and be perpetrated by anyone. (This disadvan- hand, varíous markings in subjects are created through very different kinds
tage does not mitigate but does complicate the fact that the Meritor [1986] of powers, not just different powers. That is, subjects of gender, class,
case, which established sexual harassment as gender discrimination, in- nationality, race, sexuality, and so forth are created through different his-
volved a critical feminist recognition about the relationship between wom- tories, different mechanisms and sites of power, different discursive for-
en's subordination and sexual harassment.) These confusions also reveal mations, different regulatory schemes. Thus, theories that articulate the
the extent to which classification of sexual harassment as gender discrimi- workings of social class, or the making of race, or the reproduction of
narÍon tacitly defines gender heterosexually. More broadly, they reveal the gender are not likely to be apt for mapping the mechanisms of sexuality as a
extent to which sexuality and gender have been folded together in the rights form of social power. On the other hand, we are not fabricated as subjects
designed to protect women from injuries sustained on the basis of hetero- in discrete units by these various powers: they do not operate on and
sexually defined gen der. That is, they reveal the extent to which the basis of through us independently, or Jinearly, or cumulatively, and they cannor be
the injury, the heterosexual designation oí women, is reinscribed in the radically extricated from one another in any particular hístorical forma-
formularÍon of rights promising redress. tion. Insofar as subject construction does not transpire along discrete lines
I want to make brief mention of two other paradoxes in the framing of of nationality, race, sexuality, gender, caste, class, and so forth, these pow-
feminist aims in terms of rights. The first pertains to the problem of the ers of subject formarion are thus not separable in subjects themselves. As
compound production of subjects, theorized most prominently in the legal many femínist, postcoloníal, queer, and critical race theorists have noted in
arena by KimberIé Crenshaw as the matter of "intersectionality" in black recent years, ir is impossible to pul! the race out of gender, or the gender out
women's experiencc oí racial and gender subjection; the second pertains to of sexuality, or the colonialism out of caste out of masculinity out of sex-
the problem of confbting acts with identity, theorized most prominently by uality. Moreover, to treat these various modalities of subject formation
Janet Halley as a dilemma for gay rights advocates working against sod- as símply additive or even intersectional is to elide the way subjects are
omy laws. 8 brought into being through subjectifying discourses, the way that we are
Crenshaw argues persuasively that to the extent that black women can- not simply oppressed but produced through these discourses, a production
not have the social perils of their blackness, and hence their existence as that does not occur in additive, intersectional, or overlapping parts but
black women, addressed within the terms oí gender discrimination, gender through complex and often fragmented histories in which multiple social
functions as a category purified of a/l inflection by race, and hence as a powers are regulated through and against one another.
tacitly white category. Historically, the fiction that gender is produced Law and criticaJ legal theory bring this problem - that distinctive mod-
and regulated autonomously, independently of other modalities of social els of power are required for grasping various kinds of subject production,
428 WENOY B R OWN 429 S UFFERI N G TH E PAR A O O X E S OF RIGHT S

yet subject construction itself does not transpire in accordance with any of diverse subjects that we are. This feature of rights discourse impedes the
these models-into sharp relief. Bracketing the sphere of formal and rela- politically nuanced, socially inclusive project to which feminism has as-
tively abstract antidiscrimination law, where discrimination on the basis of pired in the past decade.
a laundry list of identity attributes and personal beliefs is prohibited, it is Janet Halley's reflections on the figure of sodomy reveal a different di-
rare to find the injuries of racism, sexism, homophobia, and poverty har- mension of the troubling way rights discourse not
bored in the same corners of the law. They are rarely recognized or regu- of a monolithic subject but potentially regula tes us mrougn
lated through the same legal categories and are rarely redressed through the In "Reasoning abour Sodomy: Act and Identity in and after Bowers v.
same legal strategies. Consequently, legal theorists concerned with these Hardwick," Halley explores the way the remarkably mobile and unstable
respective identity categories not only turn to different dimensions of the signifier sodomy stabilizes homosexual identity through a routine confIa-
law depending on the identity category with which they are concerned, but tion, by homophobes and homophiles alike, of sexual act with sexual iden-
they often figure the law itself in quite incommensurate ways.l0 Although sodomy's technical definitíon (any form of oral-genital or
Now, given these kinds of variations, it is unsurprising that concern with anal-genital sexuality) itself undoes the linguistically achieved opposition
securing certain legal terrain does not simply differ, but often works at between homosexuality and heterosexuality precisely by undoing the pre-
cross-purposes for differently marked identities. Privacy, for example, is for sumed singularity of the sex acts that take place on either side of the divide,
many feminists a site that depoliticizes many of the constituent activities the equation of sodomy with homosexuality (again, in both anti- and pro-
and injuries of women: reproduction, domestic assault, incest, unremuner- gay discourses) resurrects the binary opposition between homo- and het-
ated household labor, and compulsory emotional and sexual service to erosexuality. Halley calls for exploiting the instability of the term, for dis-
meno Yet for those concerned with sexual freedom, with welfare rights for sociating act and identity, in part to establish more effective coalitions
the poor, and with the rights to bodily integrity historically denied racially among those targeted by sexually repressive legislation, in part to expose
subjugated peoples, privacy generally appears unambiguously valuable. the discursive mechanics of what she ca lis "heterosexual superordina-
Indeed, the absence of a universal right ro privacy was the ground for tion."lI To the extent that heterosexuals engage in sodomítical acts yet are
invading Hardwick's bedroom in Bowers V. Hardwick (1986). This absence immune from their stigma (and crimina lit y) when sodomy operares as a
is also the legal basis on which surprise visits by social workers to enforce metonym for homosexuality, homosexuals appear to be prosecuted not for
the "man in the house rule" for welfare recipients were tolerated for so the kind of sex they are having but for being associated with a kind of sex
many decades. Like rights themselves, depending on the function of privacy that heterosexuality disavows in order ro mark its distance from homosex-
in the powers that make the subject, and depending on the particular di- uality. The point for thinking about rights is not only rhat gay rights activ-
mension of marked identity that is at issue, privacy will be seen variously to ists ignore at their peril the way the act-identity confIation works against
advance or deter emancipation, to cloak inequality or procure equality. them, but that rights in this context must be understood as shoring up a
If the powers producing and situating socially subordinated subjects fictional identity, an identity premised on the fictional singularitv of sexual
occur in radically different modalities, which themselves contain different acts that privileges while masking the privilege of heterosexuals.
histories and technologies, touch different surfaces and depths, form dif- What happens if we think about gender along the lines that Halley has
ferent bodies and psyches, it is little wonder that it has been so difficult for mapped? To what extent is male identity as well as male superordination
politically progressive legal reformers to work on more than one kind of consolidated through the ontological disavowal of certain activities, vul-
marked identity at once. And it has made it nearly impossible to theorize a nerabilities, and labors and their displacement onto women? If gender itself
socially stigmatized legal subject that is not single and monolithic. We ís the effect of the naturalized sexual division of almost everything in the
appear not only in the law but in courts and public policy either as (un- human world, then rights oriented toward women's specific suffering in this
"¡in",.,,"tiated) women, or as economically deprived, or as lesbians, or as division may have the effect of reinforcing the fiction of gender identity and
stigmatized, but never as the complex, compound, and ínternally entrenching the masculinist disavowal of putatively female experiences or
430 WENDY BROWN 431 S UFFERfNG T H E PAR A D oXES oF RI GHTS

labors, from sexual assault to maternity. More generally, ro the extent that confusion about certain political conditions, but as the constraints imposed
rights consolidate the fiction of the sovereign individual generally, and of by those conditions on the truths that may be uttered?
the naturalized identities of particular individuals, they consolidate that Paradox may be distinguished from contradiction or tension through its
which the historically subordinated both need access to-sovereign indi- emphasis on irresolvability: multiple yet incommeQ.surable truths, or truth
viduality, which we cannot not want - and need to challenge insoíar as the and its negation in a single proposition, or truths that undo even as they
terms of that individuality are predicated on a humanism that routinely require each other. But paradox also signifies a doctrine or opinion that
conceals its gendered, racial, and sexual norms. That which we cannot not challenges received authority, goes against the doxa. In Only Paradoxes to
want is also that which ensnares us in the terms of our domination. Offer, a study of nineteenth-century French feminists, Joan WalIach Scott
parlays this definition into a political formation: "Those who put into
• circulatíon a set of truths that chalIenge but don't displace orthodox be/iefs
It would appear that a provisional answer to the question of the value oí create a situation that loose/y matches the technical definition of para-
rights language for women is that it is deeply paradoxical: rights secure our dOX."12 Scott then suggests that the paradoxical utterances and strategies of
standing as individuals even as they obscure the treacherous ways that the feminists she studied emerged as a consequence of arguing on behalf of
standing is achieved and regulated; they must be specific and concrete to women's rights, and of women's standing as individuals, in a discursive
reveal and redress women's subordinatíon, yet potentially entrench our sub- context in which both individuals and rights were relentlessly identified
ordinatíon through that specíficity; they promise increased individual sov- with masculinity. Thus, feminists were arguing for something that could
ereignty at the price of intensifying the fiction of sovereign subjects; they not be procured without simultaneously demanding a transformation in
emancipate us to pursue other political ends while subordinating those the nature of what they were arguing for, name/y, the "rights of man" for
political ends to liberal discourse; they move in a transhistorical register women. This rendered paradox the structuring rather than contingent con-
while emergíng from historically specific conditions; they promise to re- dition of their political daíms.
dress our suffering as women but only by fracturing that suffering - and Scott's insight into nineteenth-century French feminism may be of he/p
us - into discrete components, a fracturing that further violates lives al- in understanding our own circumstances. First, the problem she identifies
ready violated by the imbricatíon of racial, c1ass, sexual, and gendered persists into the present, namely, that women's struggle for rights occurs in
power. the context of a specifically masculinist discourse of rights, a discourse that
Paradox is certainly not an impossible political condition, but it is a presumes an ontologically autonomous, self-sufficient, unencumbered sub-
demanding and frequently unsatisfying one. Its master theorist in the West- ject. 13 Women both require access to the existence of this fictional subject
ern tradition is Jean-Jacques Rousseau, whose thought stands historically and are systematicalIy exduded from it by the gendered terms of liberalism,
as both incitement ro and constraint on radical political aims. The con- thereby making our deployment of rights paradoxical. Second, moving
straint is generally attributed to his own penchant for paradox; indeed, beyond Scott's focus, even as invocations of rights for a particular subject
Rousseau's aporias may be one of the reasons paradox has such abad (e.g., women) on a particular issue (e.g., sexuality) in a particular domain
polítical reputatíon. But if Rousseau insisted that men must be forced to be (e.g., marriage), al! of which have been historical!y excluded from the pur-
free, and that the development of human culture is inevitably accompanied view of rights, may work to politicize the standing of those subjects, issues,
by a descent into unfreedom, inequality, and alienation, how much is the or domains, rights in liberalism also tend to depoliticize the conditions they
paradoxical nature of these daims the consequence of the discourse of articulate. 14 Rights function to articulate a need, a condition of lack or
progress, freedom, and human perfectability into which he was speaking, injury, that cannot be fully redressed or transformed by rights, yet wíthin
and which he was also seeking to displace with an alternative discourse? In existing polítical discourse can be signified in no other way. Thus rights for
other words, to what extent can polítical paradox be read not as truth or the systematically subordinated tend ro rewrite injuries, inequaliries, and
 432 W EN D Y B RO W N •I 433 S U FFER I N G THE PAR A D O X E S OF RIGHTS

impediments to freedom that are consequent to social stratification as mat- 2. Patricia Williams, The Alchemy of Race and Rights (Cambridge, MA: Harvard Univer-
ters of individual violations and rarely articula te or address the conditions sity Press, I99I), I65.
producing or fomenting that violation. Yet the absence of rights in these 3. Drucilla A. Comell, The Imaginary Domain (New York: Routledge, I 99 5 l.
4. Catharine MacKinnon, Feminism Unmodified (Cambridge, MA: Harvard University
domains lea ves fully intact these same conditions.
Press, I987), 73·
If these are the conditions under which rights emerge as paradoxical for
5. Cheryl Harris, "Whiteness as Property," and Neil Gotanda, "A Critique of 'Our Con-
women, as simultaneously politically essential and politically regressive,
stitution Is Color Blind,''' in Critical Race Theory: The Key Writings That Formed the
what are the possibilities for working these paradoxes in politically effica- Movement, ed. Kimberlé Crenshaw, Neil Gotanda, et al. (New York: New Press, I995).
cious fashion? Unlike contradictions, which can be exploited, or mystifica- Mari Matsuda, Charles R. Lawrence III, et al., Words That Wound: Critical Race
6.
tion, which can be exposed, or disavowal, which can be forced into con- Theory, Assaultive Speech, and the First Amendment (Boulder, CO: Westview Press,
frontation with itself, or even despair, which can be negated, the politics I993), 24, 68; Henry Louis Gates, "Truth or Consequences: Putting Limits on Limits,"
of paradox is very difficult to negotiate. Paradox appears endlessly self- ACLS Occasional Paper 22, p. I9.

canceling, as a political condition of achievements perpetually undercut, a 7. "Court Weighs Same-Sex Harassment," New York Times 4 Dec. I997, An. Ir is worth
noting that the argument by the defense attomey that gender discrimination cannot be
predicament of discourse in which every truth is crossed by a countertruth,
proven beca use there were no women on the oil rig where the harassment occurred tacitly
and hence a state in which political strategizing itself is paralyzed.
cloaks the homosexual overtures of the accused by drawing on the trope of the sexually
Yet, it is telling that the language carrying the fatality of paradox occurs frustrated heterosexual prison inmate. Lacking available women to ha ve sex with, this
in the temporality of a progressive historiography: precisely the language reasoning suggests, men will tum to or on one another, but this does not equate with
Marx used in evaluating rights when he argued that "political emancipa- homosexual desire. That this argument has enough salience to be advanced before the
tion certainly represents a great progre ss ... not the final form of human Supreme Court Justices, when it is unimaginable as a defense in the more conventional
emancipation ... but the final form ... within the framework of the scene of aman harassing a female employee, further suggests both the impossibility and
prevailing social order."15 Might the political potential of paradox appear the necessity of conceiving gender and sexual discrimination simultaneously if gender
justice is to be pursued.
greater when it is situated in a nonprogressive historiography, one in which,
8. Kimberlé Crenshaw, "Demarginalizing the Intersection of Race and Sex," University
rather than linear or even dialectical transformation, strategies of displace-
ofChicago Legal I29 (I989), and "Mapping the Margins: Intersectionality, Iden-
ment, confoundment, and disruption are operative? How might paradox
tity Politics, and Violence against Women of Color," in Crenshaw, Gotanda, et al., Criti-
gain political richness when it is understood as affirming the impossibility cal Race Theory; Janet Halley, "Reasoning about Sodomy: Act and Identity in and after
of justice in the present and as articulating the conditions and contours of Bowers v. Hardwick," Virginia Law Review 79·7 (I993).
justice in the future? How might attention to paradox help formulate a 9. A handful of criticallegal scholars escape this categorization, but, probably by their
political struggle for rights in which they are conceived neither as instru- own accounts, none do so with complete success. See the work on race, gender, and
ments nor as ends, but as articulating through their instantiation what sexuality in A. I. Wing, ed., Critical Race Feminism: A Reader (New York: New York

equality and freedom might consist in that exceeds them? In other words, University Press, I977), especially Angela Harris's reprinted essay, "Race and Essential-
ism in Feminist Legal Theory." See also Comell, The Imaginary Domain, which attends
how might the paradoxical elements of the struggle for rights in an eman-
to gender and sexuality inside a single analytic frame.
cipatory context articulate a field of justice beyond "that which we cannot
10. For a fuller development of this argument, see Wendy Brown, "The Impossibility of
not want"? And what form of rights claims have the temerity to sacrifice an Women's Studies," differences 9·3 (I997)·
absolutist or naturalized status in order to carry this possibility? 11. Halley, "Reasoning about Sodomy," I 770-7 I.
12. Joan Wallach Scott, Only Paradoxes to Offer (Cambridge, MA: Harvard University
Press, I996), 5-6.
Notes
13. The masculinism of liberalism generally, and rights discourse in particular, is some-

1. Gayatri Chakravorty Spivak, Outside in the Teaching Machine (New York: Routledge, thing 1 discuss at length in "Liberalism's Family Values," chapter 6 of States of In;ury:
I993),45-4 6. Power and Freedom in Late Modernity (Princeton, NJ: Princeton University Press, 1995)·
434 WENDY BROWN

14.1 have pursued this argumem at lengrh in "Rights and Losses," chapter 5 of States of
Injury. This is the paradox articulated as a troubling conrradiction by Marx in "On the
Jewish Question" in his recognition rhat civil and political righrs for the disenfranchised
both articulare thar disenfranchisemem and trivialize it as a simple failure of universality
CONTRIBUTORS
to realíze itself. However, this paradox is also cast as a certain form of polítical possibility
by Judith Burler in her argument that "the temporalized map of universality's future" is a
kind of "double-speaking" by those who, "with no authorizarion to speak within and as
the universal, nevertheless lay claim to the term." She argues: "One who is excluded from
the universal, and yet belongs to it nevertheless, speaks from a split situation of being at
once authorized and deaurhorized .... Speaking and exposing rhe alterity within the
norm (the alterity without which the nocm would nor 'know itself') exposes rhe faílure of
the norm to effect the universal reach for which ir srands, exposes whar we might under-
seore as the promisíng ambivalence of the norrn" (Excitable Speech: A Polítics of the
Perforrnative [New York: Routledge, 1997),91).
15. Karl Marx, "On the Jewish Question," in The Marx-Engels Reader, 2d ed., ed.
R. Tucker (New York: Norton, 1978), 35.
Lauren Berlant is Professor of English and Director of the Center for Gen-

,
der Studies at the University of Chicago. She is the author of The Anatomy
of National Fantasy: Hawthorne, Utopía, and Everyday Life (1991); The
Queen of America Goes to Washington City: Essays on Sex and Citizen-
ship (1997); and has edíted Intimacy (2000); and, with Lísa Duggan, Our

1 Monica, Ourselves: Clinton, Scandal, and Affairs ofState (2001).

Wendy Brown is Professor of Polítical Scíence and Women's Studies at the

t University of California, Berkeley. Her most recent books are States of
Injury: Power and Freedom in Late Modernity (1995) and Politics Out of
History (2001). She is currently completing a study entitled "Retreat from
Justice: A Critique of Tolerance in the Age of ldentity."

Judith Butler is Maxine ElIiot Professor in Rhetoric and Comparative Liter-

ature at the University of California at Berkeley. She i5 the author of several
books, including Bodies That Matter: On the Discursive Limits of "Sex"
(1993), The Psychic Life of Power: Theories in Subjection (1997), and
Antigone's Claim: Kinship Between Life and Death (2000).

Drucilla Cornell is Professor of Polítical Science and Senior Scholar in

Women's Studies at Rutgers University. She is the author of numerous
works of polítical philosophy and feminist theory, including At the Heart of
Freedom: Feminism, Sex, and Equality (1998),Just Cause: Freedom, Iden-