JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(9) Philosophy of Law

Jacques Derrida

Jacques Lacan in Theory

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Jacques Lacan

 The French psychoanalyst, Jacques Lacan (19011981) is frequently described as the architect of postmodern psychoanalytic semiotics. Drawing on the ideas of Freud, Saussure, and Lévi-Strauss, he argues that the unconscious is structured like a language; it is therefore crucial to identify the inner workings of that discourse that takes place within the unconscious – the repository of knowledge, power, agency, and desire. We do not control what we say; rather the structure of language is predetermined by thought and desire. He employs a psychoanalytical, Freudian conception of the divided human subject - ego, superego, and the unconscious - to demonstrate that the ‘I’ expressed by language (which he calls the ‘subject of the statement’) can never represent an individual’s ‘true’ identity (which he calls the ‘subject of enunciation’).

In the first eighteen months of our lives we experience this disjunction between identity and its representation, and thereafter it is forever lost. We construct a semblance of individual and social stability only by fantasy, which cannot be sustained. The subject is thus divided or decentred. The language of the unconscious is the arbiter of all experience, knowing, and living. The idea of justice becomes, in Lacanian terms, a fantasy that camouflages the unattainable desire of a harmonious community.

 

 

Jacques Derrida

 

The controversial French philosopher Jacques Derrida (1930-2004) is closely associated with the concept of deconstruction. He employs the term - which he borrowed from the German philosopher, Martin Heidegger – to explicate the notion of différance. This neologism describes the state of interdependence and difference between hierarchical oppositions. ‘Difference’ is based on the French word différer, which means both to differ and to defer. He replaces an ‘e’ with the ‘a’ in différance. The words are indistinguishable in spoken French.

Based on the semiotics of the Swiss linguist, Ferdinand de Saussure, Derrida draws a distinction between ‘signifiers’ and ‘signified’. Saussure distinguished between langue, the deep structure of linguistic rules, and parole, the set of speech acts made by members of a linguistic community. The former is, in the understanding of language, the more important element because it is the system of relations among various signs that constitutes a language. So, for example, the word ‘dog’ does not correspond to the creature we know and love. But we understand it by virtue of its difference from similar sounds such as ‘bog’, ‘cog’, or fog’. Derrida postulates that, since the meaning of ‘dog’ emerges from this contest of differences between signifiers, its meaning - like the meaning of all signifiers - is infinitely deferred. He concludes that stability can be achieved only by ‘deconstructing’ language in order to show how the meaning of one signifier includes within it another signifier (the ‘other’). Derrida’s undertaking is ambitious: to expose the ‘metaphysics of presence’ in Western philosophy. By this he means that, in every set of oppositions, one kind of ‘presence’ is privileged over a corresponding kind of ‘absence’. Western philosophy, he argues, is based on the hidden premise that what is most apparent to our consciousness – what is obvious or immediate - is most real, foundational, or important.

Derrida’s disquieting deduction is that, since language emerges from this unstable structure of differences, it will always be indeterminate. The prospect of establishing the subject of identity - and hence of an individual right-holder – is consequently poor.

Though postmodern legal theory has garnered a sizeable following, one is bound to question whether it greatly assists our understanding of law. How, for example, can deconstruction provide a constructive insight into the concept of law? Since, as we have seen, the legitimacy of the law lies in some conception of justice, and the language of the law is unavoidably normative, it is hard to see how Lacanian psychoanalysis or Derrida’s deconstruction advance our comprehension of legal ideas.

 

Feminist legal theory

 

Traditional jurisprudence conspicuously overlooked the position of women. Feminist legal theory has been remarkably successful in remedying this neglect. It has had a considerable impact, not only on university law curricula, but on the law itself, for feminist jurisprudence extends well beyond the purely academic to comprehensive analysis of the many inequalities to be found in the criminal law, especially rape and domestic violence, family law, contract, tort, property, and other branches of the substantive law, including aspects of public law. In recent years, for example, both English and American courts have abandoned the common law principle that a husband cannot be prosecuted for raping his wife, despite her refusal to consent to sexual intercourse. The wife was deemed by the fact of marriage to have consented. While the judges make no explicit reference to feminist jurisprudence, its influence may well have played a part in these decisions.

Not surprisingly, in view of its unease about the injustices experienced by women, feminist writing is often overtly polemical. ‘The personal is political’ was the compelling slogan adopted by early feminists. It represented in part a denunciation of the professed radicalism of social movements that failed to address the routine subjugation of women at home or at work. Nor, of course, do feminists speak with a single voice. There are at least five major strands of legal feminism. What follows is an outline of their diverse perspectives, as well as a summary of the achievements of the feminist movement in theory and practice.

 

Liberal feminism

 

Liberalism prizes individual rights, both civil and political. Liberals assert the need for a large realm of personal freedom, including freedom of speech, conscience, association, and sexuality, immune to state regulation, save to protect others from harm. Liberal feminism perceives individuals as autonomous, rights-bearing agents, and stresses the values of equality, rationality, and autonomy. Since men and women are equally rational, it is argued, they ought to have the same opportunities to exercise rational choices. (This emphasis on equality, as we shall see, is stigmatized by radical feminists as mistaken, because asserting women’s similarity to men assimilates women into the male domain, thereby making women into men.)

The majority of liberal feminists, while conceding that the legal and political system is patriarchal, refuse to accept the blanket assault that is a significant, though not universal, item on the radical agenda. The liberal battleground is the existing institutional framework of discrimination, particularly in the domain of employment.

Liberal feminism accentuates equality, while radical feminism is concerned with difference. Among the most critical anxieties of liberal feminists is the border between the private and the public domain. This is largely because women tend to be excluded from the public sphere where political equality is realized. Likewise, the private domain of the home and office is the site of the subordination and exploitation of women. Crimes of domestic violence normally occur within the home into which the law is often reluctant to intrude. Liberalism may itself therefore be implicated in the subjugation of women, according to radical feminists.

 

Radical feminism

 

Leading radical feminist Catharine MacKinnon (b. 1946) contests the idea that, since men have defined women as different, women can ever achieve equality. Given that men dominate women, she argues that the question is ultimately one of power. The law is effectively a masculine edifice that cannot be altered merely by admitting women through its doors or including female values within its rules or procedures. Nor, the radical position contends, is reforming the law likely to assist since, in view of the masculinity of law, it will simply produce male oriented results and reproduce male dominated relations. In the words of MacKinnon: ‘Abstract rights . . . authorize the male experience of the world.’ Radical feminism rejects what it regards as the liberal illusion of the neutrality of the law. It seeks to expose the reality behind the mask so that women will recognize the need to change the patriarchal system which subjugates them. Carol Smart denies that the law can produce real equality. Ann Scales is eloquent in her dismissal of change through the form of law: We should be especially wary when we hear lawyers, addicted to cognitive objectivity as they are, assert that women’s voices have a place in the existing system. . . . The injustice of sexism is not irrationality; it is domination. Law must focus on the latter, and that focus cannot be achieved through a formal lens.

Christine Littleton advocates ‘equality as acceptance’, which emphasizes the consequences rather than the sources of difference, an approach that has obvious legal consequences in respect of equal pay and conditions of work. Radical feminism seeks to expose the domination of women by ‘asking the woman question’ to expose the gender implications of rules and practices that might otherwise appear to be impartial or neutral.

 

Postmodern feminism

 

Postmodernists, we have seen, generally reject the idea of the ‘subject’. And they exhibit an impatience with objective truths such as ‘equality’, ‘gender’, ‘the law’, ‘patriarchy’, and even ‘woman’. Indeed, the very idea that things have properties which they must possess if they are to be that particular thing (i.e. that they have ‘essences’) is repudiated by many postmodernists. This ‘essentialism’ is discerned by postmodern feminists in the approach of radical feminists such as Catharine MacKinnon who argues that below the surface of women lies ‘precultural woman’. Drucilla Cornell and Frances Olsen draw on the work of Jacques Derrida and Julia Kristeva to construct what Cornell calls an ‘imaginative universal’ which transcends the essentialism of real experience and enters the realm of mythology. The maleness of law - the ‘phallocentrism’ of society - is a central theme in postmodern feminist writing. Katherine Bartlett identifies at least three feminist legal methods that are used in investigating the legal process: ‘asking the woman question’, ‘feminist practical reasoning’, and ‘consciousness-raising’. The first attempts to expose the gender implications of rules and practices that may appear to be neutral. Feminist practical reasoning challenges the legitimacy of the norms that, through rules, claim to represent the community, especially in cases of rape and domestic violence cases. Thirdly, consciousness-raising seeks to understand and reveal women’s oppression.

 

Difference feminism

 

Difference (or cultural) feminism is uncomfortable with the liberal feminists’ attachment to formal equality and gender. This position, it maintains, undermines the differences between men and women. Instead, difference feminism endeavours to reveal the unstated premises of the law’s substance, practice, and procedure by exposing the miscellaneous kinds of discrimination implicit in the criminal law, the law of evidence, tort law, and the process of legal reasoning itself. This includes an attack on, for example, the concept of the ‘reasonable man’, the male view of female sexuality applied in rape cases, and the very language of the law itself. It argues that equality is a more subtle and complex objective than liberals allow. Thus Carol Gilligan, a psychologist, demonstrates how women’s moral values tend to stress responsibility, whereas men emphasize rights. Women look to context, where men appeal to neutral, abstract notions of justice. In particular, she argues, women endorse an ‘ethic of care’ which proclaims that no one should be hurt. This morality of caring and nurturing identifies and defines an essential difference between the sexes. Difference feminism focuses upon the positive characteristic of women’s ‘special bond’ to others, while radical feminism concentrates on the negative dimension: the sexual objectification of women, through, for example, pornography, which MacKinnon describes as ‘a form of forced sex’.

 

Critical race theory

 

CRT originated in Madison, Wisconsin, in 1989 as a reaction against what it saw as the deconstructive excesses of CLS. Nevertheless, it is no less sceptical of Enlightenment ideas such as ‘justice’, ‘truth’, and ‘reason’. Its mainspring, however, is the need to expose the law’s pervasive racism; privileged white, middle-class academics, in its view, cannot fully uncover its nature and extent. Those who have themselves suffered the indignity and injustice of discrimination are the authentic voices of marginalized racial minorities. The law’s formal constructs reflect, it is argued, the reality of a privileged, elite, male, white majority. It is this culture, way of life, attitude, and normative behaviour that combine to form the prevailing ‘neutrality’ of the law. A racial minority is condemned to the margins of legal existence.

CRT diverges most radically from full-blown postmodernist accounts (see above) in respect of the recognition by at least some of its members of the importance of conventional ‘rights talk’ in pursuit of equality and freedom. Its analysis of society and law therefore seems, in some cases, to be a partial one. This retreat from the postmodernist antagonism towards rights signifies an apparent readiness to embrace the ideals of liberty, equality, and justice. Several CRT adherents, however, evince profound misgivings about liberalism and the formal equality it aspires to protect, and a distaste for individual rights and other contents of the liberal package.

CRT scholarship often draws on ‘auto/biography’ to appraise social and legal relations. Patricia Williams, for example, amalgamates legal analysis and personal narrative to criticize legal subjectivity. CRT regards the hostility of traditional legal scholarship to the auto/biographical as a method by which to distance the law from the very social relations, especially racial and gender discrimination, that it generates.

An offshoot of CRT pursues the postcolonial thesis that the dismantling of colonial governments has failed to end the racial divisions and assumptions of these societies.

 

The differences - or dualisms - between the genders, according to Frances Olsen, are ‘sexualized’. Masculine characteristics are considered superior.

 

MALE - FEMALE

 

Rational - Irrational

Active - Passive

Thought - Feeling

Reason - Emotion

Culture - Nature

Power - Sensitivity

Objective - Subjective

Abstract – Contextualized

 

 

(Adapted from Frances Olsen, ‘Feminism and Critical Legal Theory: An American Perspective’ (1990) 18 International Journal of the Sociology of Law 199.)

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