Between ?truth? and ?difference?: Poststructuralism, law and the power of feminism

Feminist Legal Studies Vol.III ~o. 1 [ 1995]

BETWEEN "TRUTH" AND "DIFFERENCE": POSTSTRUCTURALISM, LAW AND THE POWER OF

FEMINISM

FL~LPH SANDLAND *

In the last few years feminist legal scholarship has evolved from a critique of sexism in the law into an increasingly sophisticated jurisprudence. 1 However, this development is now entering a critical phase. On the one hand law has proven largely impervious to rneaning~ul reform, by which I mean reform which materially alters the reality of gender relations. 2 On the other, the claims to represent "women's truth" which underpin feminists' arguments and demands have been revealed as prob - lematic. One interesting and provocative response which conjoins these twin dilemmas has been the emergence of what Carol Smart has described as a "poststructuralist feminist" perspective on law. My aim is to interrogate Smart's position for its (law) reformist potential.

The schema of the paper is as follows. Part 1 explains the basis of Smart's position on law, truth and sexuali~ty and the implications of her position for law reform. Part 2 argues that Smart's scepticism in respect of law reform does not follow inexorably from the model which she expounds, but rather from her understanding of its potential. Part 3 attempts to substantiate the claim that an approach which functions within the tensions thrown up at the interface of poststructuralism and feminism may indeed be able to produce reformist strategies. Part 4 considers how such strategies might pan out in practice.

* Lecturer in Law, University of Nottingham. 1 A brief but informative overview of these developments can be obtained by

reading first N. Lacey, "Feminist Legal Theory", Ox~rdJourna! of Legal Studies (1989), 383-394, and then C. Smart, "The Woman of Legal Dis- course", Social and Legal Studies 1 (1992), 29-44.

2 See for example M. Thornton, "Feminism and the Contradictions of Law Reform", International Journal for the Sociolog 7 of Law 19 (1991), 453-474; W. Brown, "Finding the Man in the State", Feminist Studies 18/1 (1992), 7-34.

4 RALPH SANDLAND

1 Poststructuralist Feminism

Poststructuralist Feminism and Truth

The development of poststructuralist feminism is often traced back to French writers such as Helene Cixous, Julia Kristeva and Luce Irigaray, and through them to Lacan and Derrida, 3 but Smart's understanding of the term derives more from the work of Michel Foucault. 4 The main tenet of this position is a sustained scepticism towards the concepts of Truth/Science/Objectivity. Smart understands these concepts as interchangeable, as "strategies", to be deployed in order to ele- vate a point of view, a subjective interpretation, to the status of accepted, unproblematic reality. As far as law is concerned, she argues that the question of legal reasoning as a distinctive way of thinking is "neither here nor there. "5 What is important is that law's power derives from its claim to truth, since "it is a feature of modernism 6 that knowledge which

3 I should emphasise that my concern here is with Smart's version of poststructuralism, rather than with poststructuralism, or even poststructuralist feminism, more generally. Smart does not cite these authors and her work differs in significant ways from them. By the same token Smart's work is not cited in discussions of poststructuralist feminism (for an introduction to the work of the French poststructuralist feminists see R. Tong, Feminist Thought: A Comprehensive Introduction (London: Allen & Unwin, 1989), Ch.8). As such, my argument does not claim to be of general application.

4 At least, this is Smart's claim. However, I shall argue below that Smart's approach is in fact - - at crucial m o m e n t s - more at one with that taken by writers such as Jean-Francois Lyotard and Jean Baudrillard than it is with the work of Foucauk.

5 C. Smart, "Law's Power, the Sexed Body and Feminist Discourse", Journal of Law &Society 17 (1990a), 194-210, at 197.

6 Smart uses the term "modernism" to mean the period since the Enlighten- ment, which has sought to apply rationality and reason rather than religious belief (superstition) in the understanding of the material and social world. As such she implies that this is the age of Truth. There is now considerable debate over the continued descriptive purchase of this term. Lyotard, for example, has argued that we have witnessed the death of the metanarrative (Truth) and its replacement with a technocratic rationality; that "The question (overt or implied) now asked by the professionalist student, the State, or institutions of higher education is no longer "is it true?" but "what use is it? .... J-F. Lyotard, The Postmodern Condition (Manchester: Manchester University Press, 1984), at 51. For a good introduction to this debate see chapter 5 of S. Lash, Sociolog 7 ofPostmodernism (Routledge: London,

BETWEEN "TRUTH" BaND "DIFFERENCE" 5

can claim to be true (rather than belief, superstition, opinion, and so on) occupies a higher place in the hierarchy of knowledges. The claim to truth is therefore a claim to deploy power. ''7 Hence power, knowledge and truth are intimately connected: they produce each other. At the level of the specific what we get are "discourses": identifiable configurations of power/knowledge which profess expertise but which really function as evidence of their own legitimacy as institutions of social control. Law and medicine are obvious examples. At the level of the general, these discourses function as competing explantations of the social world. Interpretation is all for poststructuralism, and this amalgam of power/truth/knowledge is seen as "producing" reality by providing the lens through which reality is interpreted. Dominant concepts and meanings are generated and disseminated, thus proscribing and delimiting what may be thought. It is in this way that knowledge is structured as a hierarchy. Law, for Smart, is heavily implicated in this process. Law's normative and normalising functions are seen as incompatible with freedom. For example, law can only recognise gendered individuals, and then only two genders. These categories are said to be unchallengeable within the context of legal discourse: law cannot "think" outside of these categories. 8

By positing law as a modern "discipline" Smart breaks with Fou- cault's reading of law, as being the regulatory mechanism of the premodern or corporal era. For Foucault law functioned as the expres- sion of centred sovereignty, the absolutist, historically feudal, characteris- tically repressive, model of power. For Foucau~t law's modern role is as an anachronism which masks the real functioning of power, located now in the production of the subject-as-obiect by the discourses of the

1990). Lash argues that modernism has now been replaced by "modernity", a term which he correlates to the demise of the metarlarrative. My own view is that, whilst the trends which Lyotard detects are certainly present in many areas of social and cultural life - - education being the obvious example - - some areas, sexuality included, remain steeped in Truth. In other words, I would argue that Smart's use of the term "modernism" (rather than "modernity") is accurate in the context within which she is working. S¢~ra n.5, at 196. On the claim that law can "think", see for example C. Smart, scqara n. 1, citing H. Alien, J~estice Unbalanced (Milton Keynes: Open University Press, 1987), and G. Teubner, "How the Law Thinks: Towards a Constructivist Epistemology of Law", Law & Socie~' Review 23 (1989), 727-757.

6 RALPH SANDLAND

human and social sciences. Today the courts do not judge the act which has offended law but the actor which has offended the normative codes produced by the social sciences. Law's primary r o l e - - to regulate human a c t s - has been rendered obsolete because power is not now concerned with bodies (acts) per se, but rather, power has invested our souls, producing bodies only as an incident of producing "individuals", what Foucault called "docile useful bodies". Smart's objection to this is that law does in fact share enough of the characteristics of the modern disciplines identified by Foucault - - primarily in that law functions as a discourse which produces and disseminates truth, which therefore constitutes and reconstitutes (and hence regulates) the "self" - - to refute the charge of anachronism. Rather, law at once provides the mandate for increasing intrusion, and has fused with social scientific knowledge as an instrument of regulation. Although law has been hypostatized by modernism it is nevertheless the case that law is one (although not the) site of truth production. In short, law operates discursively to produce the subject and maintain the modernist form of knowledge. 9

The converse of this, the necessary consequence of the way that knowledge is structured hierarchically, is that some knowledges are not merely denied the status of truth but are "subjugated", "othered", rendered inaudible and un-real. Smart's argument forks at this point. First she argues that under this "regime of truth" the substance and the form of knowledge are conflated. The hierarchy of truths correlate with the hierarchies of gender, class, race, and so on which undoubtedly exist. It is truth, for example, which holds that the difference between men and women is at root biological, rather than an interpretation of biological differences (themselves produced through interpretation and discourse) which are essentially meaningless. Substantively, the truths which have greatest currency in our society (in no particular order, because they have no particular order) are white, male, heterosexual, bourgeois.

Secondly, however, she argues that form is independent of substance. Returning to law, what this means is that "law does not stand outside gender relations and adjudicate upon them. Law is part of these relations and is always already gendered in its principles and practices. We cannot separate out one practice - - called discrimination - - and

See further ch.1 of C. Smart, Feminism and the Power of Law (London: Routledge, 1989), and see also A. Hunt, "Foucault's Expulsion of Law: Toward a Retrieval", Law and Social Enquiry 17/1 (1992), 1-38, where Hunt essentially endorses and expands the points that Smart makes.

BETWEEN "TRUTH" AND "DIFFERENCE" 7

ask for it to cease to be gendered as it would be a meaningless request". 10 Law, in common with other forms of knowledge which derive their legitimacy from a claim to be able to "get at the truth", is irredeemably entwined with the reproduction of existing social relations/categories irrespective of its substance. The real enemy is essentialism. In other words, it is not that the currently dominant truths silence other, currently submerged truths: the problem is the concept of truth itself. Her critique of feminist jurisprudence 11 puts some flesh on the bones of this claim.

Smart castigates the various theories of law which have been offered by feminists. Her point can. be put very simply. Feminism has developed several approaches to law: those based on a meta-theory which is purported to be able to explain all oppressions in time and space; those which implicitly claim to be external to theory, being premised instead on experience and methodologically geared around consciousness-rais- ing; those which posit that differential socialisation practices produce "different realities" rendering women a priori strangers in the public sphere; and those which argue that law should reflect a female perspective on harm. In each version, Smart argues, essentialism is present. Each assumes that a "women's theory" is possible or that a "women's consciousness" exists and so on. These are essentialist claims to the truth about women, as if"woman" was an homogeneous category whose con - stituents are interchangeable. "Woman" has been constructed by fern- inism in opposition to "man". Yet increasingly and convincingly it has been shown that this is not a tenable position to take.~2 And it is not merely that social, racial, geographical and cultural differences fracture this Unified Woman, although this is the case. It is also that as individ - uals we are "decentred".

What is meant by this term is that it is not merely the metacategories (man, woman, black, white and so on) which are discursively created, but also specific examples of these categories, i.e. the individuai. The self

10 C. Smart, "Feminist approaches to criminology or postmodern women meets atavistic man", in Feminist Perspectives in Crirninalogy, ed. L. Gei- sthorpe & A. Morris (Milton Keynes: Open University Press, 1990b), 80.

11 See ch.3 of Smart, supra n.9 and C. Smart, "Feminist Jurisprudence", in Dangerous Supplements, ed. P. Fitzpatrick (London: Pluto Press, 1991).

12 A good example of what is now a burgeoning literature on this topic is Angela P. Harris, "Race and Essentialism in Feminist Legal Theory", Stan- fordLaw Review 42/3 (1990), 581-616.

8 RALPH SANDLAND

is a social construct. The poststructuralist reading of the self highlights its (our) frailty and contingency. The primacy accorded to interpretation by poststructuralism necessarily posits that we do not exist un - til we have interpreted ourselves, and even those attributes which seem to be most "given" are the result of this process. Interpretation of the self is a social activity: the self is understood in relation to the meanings which are available to allow us to make sense of it (us). Modernism im - plores and demands from us that we cultivate an essential self. t3 But this is misleading; we have no essence but rather exist in our social relations. So, for example, gender is not an attribute but a relatian that one is more or less aware of, and which has a different meaning, depending upon the context within which the relationship is being played out. To be a "gendered" individual does not determine one's experience(s) o f gender. Skin colour too has a varied, not fixed, significance. The idea of ethnicity is socially constructed in situationally-specific ways, with the effect sometimes that the ethnicity of an indigenous population is invisible in the same measure that that of an "ethnic minority" is visible, and at other times in reverse, so that the ethnicity of the indigenous minority is highlighted to the same degree that that of the immigrant is invisible. As individuals we are more or less aware of our own "ethnicity", depending on the context which gives it meaning. Smart's point is that it is not tenable to frame arguments, demands and strategies in essentialist terms such as those implied by concepts like "woman .... black" and so on. These categories as once overpredict a commonality based on biological referents and also, therefore, collapse and obscure differences. Truth, consequently, is seen to have a normative, hence "normalizing" function; the effect of Truth is to totalize knowledges both between and within individuals: it must, therefore, dominate and strait-jacket. Hence an appeal to Truth can form no part o f a poststructuralist feminist strategy.

It is, I think, extremely important to be aware of Smart's use of the "Other" in this critique of Truth. Sometimes in poststructuralist thought the Other is the subjugated or the disempowered 14 (as opposed

13 Kipling's poem "If" is a paradigmatic example of this modernist tendency towards producing "ourselves" as an essence, whilst also signifying the absence of a female essence.

14 At times Foucault uses the Other in this sense. In "Two Lectures", in Power~Knowledge: selected interviews and other writings 1972-1977, ed. C. Gordon (London: Harvester Wheatsheaf, 1980), for example, he argued that "by subjugated knowledges one should understand ... a whole set of


to the powerful, the set-in-discourse), for example the Female (as opposed to male). But it is vital to appreciate that for Smart the Other is not merely the disempowered or the non-discursive but the unpresentable. For her the Other is not merely the knowledge at ~:he bottom of the hierarchy of knowledges (discourses)° Rather, it is that knowledge which does not (yet) exist; knowledge produced outside of Truth. To put it another way, the significant division for Smart is not that between Truth and Superstition. Although there is clearly a power imbalance between the claims of Truth and the claims of superstition there is no sig nificant ontological difference. Superstition is merely a less successful Truth. The crucial distinction is between knowledge which is and knowledge which is not couched in terms of Truth. We must attempt to know ourselves outside of the discursive context within which we exist - - no easy task when that discursive context/~ our "self". Smart's recognition of the socially constructed nature of the basic categories of "woman" and "man" carries the implication that woman cannot be the "non-discursive Other". For Woman is in fact steeped or saturated in discourse and thus implicated in the conspiracy to propagate the myth of Truth. This is why, as we have seen, Smart is so critical of modernist feminism: it is disempowered precisely through its acceptance of the "non- (or pre-) discursive woman". Recognising Woman as a product of Truth requires instead that the category as such be &constructed and moved beyond.. There can be no Woman stripped of oppression, conditioning, control because Woman /s oppression, conditioning, control. In Smart's thought the Other is emphatically outside of Identity. This is particulax- ly clear in her work on sex(uality)/gender. 15

15

knowledges that have been disqualified as inadequate to their task or insuf- ficiently elaborated: naive knowledges, located low down on the hierarchy, beneath the required level of cognition or scientificity ... (such as that of the psychiatric patient, of the ill person, of the nurse, of the doctor ... that of the delinquent, etc.), and which involve what I would call a popular knowledge (le savoir des gem)", at 82. V. Bell, "Beyond the "Thorny Question": Feminism, Foucault and the Desexualization of Rape", International Journal for the Sociology of Law t9 (1991), 83-100, has pointed out that the use of the term "sex" is problematic and fluid in debates around sexuality and gender. However, whilst not wishing to dispute this I use the term sex(uatity)/gender in order to capture the interrelationship between sex (biology), sexuality and gender. That is, I argue that gender is seen as being predetermined by sex, and sexuality is seen as being predetermined by gender, and that it is this triple conflation

10 RALPH SANDLAND

Pos, rtructuralist Feminism and Sex(uality)/Gender

The general thrust of Smart's argument here is that sex(uality)/gender have been the most successful examples of normative power within modernity because these things are seen as "given" not "constructed". They have been allocated to biology and seen as being outside power. Sexuality is thus responsible for a radical separation of power and truth which in fact entirely reverses the actual relationship. Smart here adopts without reserve Foucault's position that sex(uality)/gender represents, on the one hand, identity, and on the other, control. 16 That is, sexuality is understood as an invention which increasingly gained in currency from the 18th century 17 and which links into a change in emphasis from act to actor: "the sodomite had been a temporary aberration; the homosexual was now a species, "~8 for example. In this displacement, as part of it, "natural" and theological discourses around sex were increasingly challenged and supplanted by a scientific discourse intent on discovering the truth about sex. For example, at the 1929 Congress of the World League for Sexual Reform, Magnus Hirschfeld in his presidential address announced that "A sexual ethics based on science is the only sound sys - tem of ethics." 19 The secrets of sex were to be laid bare by scientific investigation. Sex(uality) held out the promise of disclosing the Truth of the individual.

The repercussions of this shift have been two-fold, although interde- pendent. First, sex came to be identified with self, as "the ultimate truth of a person ... each individual's most secret and yet most telling property. ''~° The edict to "save yourself" for marriage is really a request to "save your sex". Similarly, involvement in sexual activity is commonly understood as "giving yourself''. The idea of carnal knowledge invokes

which we should seek to tease apart. This is not to argue that these terms are used interchangeably within modernism, but rather that these three "ideas" are linked by modernism in specific causal relationships.

16 M. Foucault History of Sexuality (London: Allen Lane, 1979), 155. 17 M. Foucault, "The Confession of the Flesh", in Gordon, s~ra n.14. 18 S~ra n.16, at43. 19 M. Hirschfeld, "Presidential address: The development and scope of sexol-

ogy", in World League for Sexual Reform: Proceedings of the Third Congress, ed. N. Haire (London: Publisher, 1930), xiv, cited in J. Weeks, Sexuality (Chicester/London; Ellis Harwood/Tavistock, 1986), 111.

20 S~ra n.5, at 206.


these ideas of intimacy, secrecy and violation, ~Cor example. Secondly, the conflation of sex with identity permits the regulation of selves through the construction of discourses around sexuality. These discourses - - psychological, popular, legal, etc, - - have shrunken the options for sexual activity, "othering" other sexualities. Today carnal knowledge is a phallocentric concept, presuming heterosexual intercourse as a normative structure, yet is derived from the Latin caro, which originally referred to bodily sensations more generally.

Sexuality is thus seen to constrain on two levels. The latter of these might be called the normative-substantive level. The range of possibilities open to the individual as a sexual being is funnelled towards conjugalivy, heterosexuality, monogamy. 21 But before being deployed in this way the idea of sexuality must be developed. This is the former, what might be called the individual-constitutive, level of constraint. Here, sexuality produces individuals as effects of power. In other words, the invention of sexuality by modernism has had a profound normative effect. Sexuality has become a constant and complex grid of power rdations, so infused now" with Truth that it has achieved a high degree of hegemony: we are produced as "individuals", just as power at this point successfully posits itself as its absence. 22 From this point of view, for example, the problem with rape is not that being raped violates one's individuality, one's s e l f - - but that rape illustrates all too painfully that through the conflation of sex and identity one's identity can be deployed against one's self.Z3 As such, sexuality must be rejected as much if not more

21

22

23

The "othering" of homosexuality by s.28 of the Local Government Act 1988 provides a clear example of this. That is to say that when power is at its most powerful it is normative, hence "invisible". Rape of course does not simply result in physical but also in psychological damage. The point is accentuated by a consideration of the rape trial, which many women experience as being as much a violation as the actual rape itself, notwithstanding the absence of any bodily invasion as such. The self can be raped without the body being touched. See for example Z. Adler Rape on Trial, especially chapter 7 (London: Routlege & Kegan Paul, 1987). In male-on-male rape it is widely agreed that the "rapee" is femi- nized. Research on rape in male prisons has shown that this is the case, and that the participants revert to heterosexual relationships on release (see for example N. Conacher, J. Low and J. Proctor, "Case Report; the predatory facultative homosexual of prisons", Journal of Forensic Psychiatry 4/t (1993), 147-152, and references cited therein). Rape thermCore has a particular (gendered) significance, again emphasising that it is not the body but the

12 RALPH SANDLAND

than any other truth. The strategy which emerges from this position is "desexualization". Foucault argued that "sexuality as such, in the body, has a preponderant place, the sexual organ isn't like a hand, hair or nose. It therefore has to be protected, surrounded, invested in any case with legislation that isn't pertaining to the rest of the body. "24 Desexualiza- tion should be understood as the attempt to reverse or undermine this reification of the genitalia, this inscription of the body with power relations. "Desexualization" may therefore be seen as deconstruction as applied to sexuality.

Smart uses Foucault's insights to good effect. She points out that this approach problematicises the sex/gender distinction which has heretofore been accepted by feminist analyses. It is no longer sustainable to base arguments around the presupposition that sex is given but gender is learnt. Sex is already gendered:

It is not just ... gendered identities that count, but also the sexed body which can rarely be escaped and which is constantly reproduced in law. By sexed body I do not mean the body which is saturated (totally encoded) with sex...I mean also biological womanness...natural sex differences do not exist before being brought into consciousness through language. 25

Her general critique of truth, which as we have seen is carried through to the point where method separates from substance, is repeated in this context: "Law may benevolently or malevolently confirm us in our discursive place as women: the point is that it does so "~6. The possibility of a sexual politics based on Identity is debarred from poststructuralist feminist strategies as much as is the use of law. The claim that law reform can usefully advance liberatory causes is, from this position, doubly indicted.

Smart's Position on Law Reform

There are undoubted and seriously problematic tensions in this position. I shall return to these below. Before I do I want to raise the ques-

self which is the target of rape. 24 M. Foucault, "Confinement, Psychiatry, Prison", in Michel Foucault: Poli-

tics, Philosophy, Culture. Interviews and Other Writings, ed. L. Kritzman (London: Routledge, 1988), 201-202.

25 Supra n.5, at 203, 204. 26 Ibid., at 204.


tion of the relationship between Smart's poststructuralist feminism and law reform. The jist of her approach seems to be that the refusal to uti- lize truth forecloses on the possibility of law reform. She argues:

there is no single foundation to jurisprudence and no single outcome to the application of any principle...it is more complex and less of a conspiracy than the model implied by much of the work on feminist jurisprudence...This leads to the question of whether it is sensible to try to impose a unitary standard on law...A simplified model of law may be useful in the construction of a critique, but it is a poor basis for a reform strategy. 27

Her approach, then, eschews the reformative potential of feminist jurisprudence as currently constituted and in any case "decentres" law and legal method. Law is seen now as a grid of power relations, not a hierar- chical structure, what has been described as a "flat, one-dimensional collage of disjointed agencies of regulation" 28 thus rendering legal struggles less significant and central to the maintenance/overthrow of existing gender relations. But Smart seems to go further than this. Whilst she cautions against "abandoning law as a site of struggle ''29, a site, moreover, which is "not monolithic and unitary," 33 she claims also that an oppositional strategy which engages with law on law's terms "preserves law's place in the hierarchy of discourses which maintains that law has access to truth and justice. It encourages a "turning to law" for solutions, it fetishizes law rather than &constructing it." 31 Strategies for change which look to law are indicted both for their complicity and their irrelevance. Law expresses The Rule: it cannot cope with a multiplici- tous standard. 32 The appropriate strategy is to "decor~struct law's truth rather than unwittingly colluding with it."~3 Feminist jurisprudence as

27 Smart, s~epra n.11, at 155. 28 A. Carry & J. Mair, "Some Post-Modern Perspectives on Law and Society",

Journal of Law andSociety 17/4 (1990), 395-410, at 396. 29 Smart, supra n.1, at 40. 30 Ibid. 31 Smart, supra n.9, at 88-89. 32 Recent struggles around &fences in criminal law, in particular the defence

of provocation, show that law cannot even contemplate a dual standard: see R.v. Thornton, 96 Cr.App.R. 112. For a possible way out of the impasse see K. O'Donovan, "Defences for Battered Wives Who Kill", Journal of Law and Society 18/2 (1991), 219-240 (arguing for an "experiential" approach).

33 Smart, sulora n.5, at 208. It should be noted that Smart does not use the term "deconstruction" in the strictly Derridean sense. She does not, for ex-

14 RALPH SANDLAND

such must be abandoned: "we need to start from somewhere else fundamentally to challenge the power of law and the heritage of traditional jurisprudence." 34 Insofar as engagement with law can be fruitful, the mode of engagement is to deconstruct, and not to attempt to reform, legal truths.

This dichotomy erected between reform and deconstruction seems to sit uneasily with Smart's claimed rejection of binary modes of analysis. Yet on closer examination it is revealed as an inevitable product of her methodology. Smart's radical rejection of Law is posited around her attempt to escape Modernism at a more general level. Here the Modern is opposed with the Postmodern. 35 "Truth" with "Difference", "Self" with "Other", politics with philosophy. In each instance the dichotomy is erected so that its "modernist" pole can be first, identified, and, second, jettisoned. The opposition of Law Reform with Deconstruction of Law follows inexorably from this approach. Smart's position can properly be described as "a kind of absolute relativism ''36 which refuses to articulate any normative base, as to do so is to deploy Truth, i.e. to "modernize". I want now to argue that this radical separation of modern and postmodern misconstrues the relationship between them, faltering as a consequence into an unwarranted nihilism which fails to recognise the strategic potential of a feminism informed by poststructuralist thought to pursue a deconstructivist agenda within legal arenas and discourses. I shall then offer an alternative reading of poststructuralism which can inform reformist strategies, one which accentuates the potential for resistance and, whilst acknowledging the problematic nature of truth claims, nevertheless advocates their (reflexive) deployment in specific struggles.

34 35

36

ample, read texts with the purpose of seeking out moments of "undecidability" or aporias. Smart, supra n. 11, at 156. Smart uses the terms poststructuralism and postmodernism interchangeably. S. Harding, "The Instability of the Analytical Categories of Feminist The- ory", in Sex and Scientific Inquiry, ed. S. Harding & J.F. O'Barr (London: University of Chicago Press, 1987), 286.

BETWEEN "TRUTH"/hND "DIFFERENCE" ! 5

2 Wishful Thinking (?)

Smart is of course not alone in her ambivalence to law reform, but her allegiance to poststructuralism does distance her from the mainstream of feminism, 37 just as she distances herself from it. Many feminists have been concerned that poststructuralism may undermine the polemic force of feminism. ~8 Smart's poststructuralism carries the potential to destabilize her feminism: the former "fractures" the latter as much as it fractures modern thought more generally.. In this section t attempt to explicate this tension between poststructuralism and feminism (as a modernist discourse). My argument is that Smart, in her critique of feminist jurisprudence, fai|s to engage with the exact nature of the relationship between her continued allegiance to feminism in the face of her poststructuralism. I want to show that, necessarily, "poststructuralist feminism" contemplates a dialogue between the "post" discourses and modernism, or, if you prefer, be~:ween the absence of sdf (or Other) and a situated, value-laden interest-driven self; and that ap- preciating this fact (that the modern/postmodern distinction is illusory)

37 Of course, it is debatable to what extent feminism has a "mainstream". But from Smart's point of view, as we have seen, feminism predicated on Woman (e.g. radicalism) or feminism that is associated with some other metanarrative (e.g. liberal and marxist strands of feminism) are linked through their belief in Truth. Jana Sawicki, in a similar vein, argues that radicalisrn and liberalism share a "repressive" model of power, and that the similarities between the two positions are in fact more marked than the differences (J. Sawicki Disciplining Foucault: feminism, power and the body (London: Routledge, 1991). Despite her critique, however, Smart's work tends to be used fairly uncritically by "modernist" feminists. As of yet there are only murmurs of discontent amongst feminist writers (See for e.g.A. Bottomley and J. Conaghan, "Feminist Theory and Legal Strategy", Journal of Law and Society 20/1 [1993], 1-5). Criminologists, by contrast, have been quick to respond to Smart's amusingly disparaging rejection of their discipline (Smart, supra n.I0). The "Left Realist" school, which was the main target of Smart's attack, has been particularly vociferous in its response. R. Matthews and .}. Young in their introductory essay to the collection Rethinking Criminology: The Realist Debate (London: Sage, I992), argue that Smart's position "melts into air" (at 13). But then, they would say that.

38 See for example S. Bordo, "Postmodern Subjects, Postmodern Bodies", Feminist Studies 18/1 (1992), 159-175; C. Di Stefano, "Dilemmas of Dif- /~-ence: Feminism, Modernity, and Postmodernism", in Femi- -is~v/Postmodernisrn, ed. L. Nicholson (London: Roudedge, 1990).

16 RALPH SANDLAND

serves to liberate the "post" discourses from their se/f-imposed silence. As we have seen, Smart's methodology may be described as a whole-

sale commitment to the deconstructive impulse. Events, debates and claims must be bracketed off in order to discover their discursive referents. "Reality" functions as a second-level discourse where one must constantly be aware that so much is always already given. Smart's position here has resonances of Baudrillard's "ironic detachment ''39 and politics of "nonparticipation of nondesire, of nonknowledge, of silence of...total resistance to the ultimatum of historical and political reason. "~° Yet by placing herself alongside this sort of approach Smart removes herself to a point from where, for all her protestations that law must be seen as "refracted "41 and contradictory rather than monolithic and in- ternally consistent, the haphazard and uneven surface of law cannot be deciphered. Smart, in her insistence that law must be deconstructed and defetishized seems to be saying that the substance afthe law is irrelevant, or not worth bothering with. When law is engaged with on its own terms so much is always already given that such engagement can only be counter-productive. From her point of view, for example, all cases are wrongly decided, and they would still be wrongly decided if the substan - tive outcome been different, since all cases must fall to be decided within a given (legal) framework which fails to challenge the deployment of sex(uality)/gender-as-identity, on the one hand, and which legitimizes Law on the other. Smart seems to feel that it is not enough (indeed, it is self-defeating) merely to speak with the voice of Other. One must rather speak from the vantage point of Other. Attempt, that is, a discourse of the non-discursive.

The popularity of this strategy owes much to Lyotard's ~ influential attempt to define the postmodern. For Lyotard "The postmodern is that which, in the modern, puts forward the unpresentable in presentation itselt~ that which denies itself the solace of good form, the consensus of a

39 J. Baudrillard In the Shadow of the Silent Majorities (New York: Semio- text(e), 1983), 108-109, cited in P.M. Rosenau Postmodernism and the So- cial Sciences: Insights, Inroads and Intrusions (Oxford: Princetown University Press, 1992), 140.

40 J. Baudrillard, "The Masses", in Jean Baudrillard Selected Writings, ed. M. Poster (Cambridge: Polity, 1988), 217.

41 Smart, supra n.9, at 97. 42 Lyotard, "What is postmodernism?", in The Postmodern Condition, supra

n.6.


taste which would make it possible to share collectively the nostalgia for the unattainable.., our business is not to supply reality but to invent allusions to the conceivable which cannot be presented. ''&3 Whereas modernism is posited on the rock of its own History and (although this claim is becoming harder to sustain) its own Future, postmodernism by contrast rests on shifting sands. To bring the postmodern into being, one must think the unthinkable and speak the ur~speakable. Hence, the postmodern cannot exist since existence 'would be to modernise. Or rather, it can only exist as "allusions", as an intuition but one that remains unarticulated. Postmodernism is something like the dream that modernism forgets, knowing it has forgotten it, in the process of awak- ening: "not modernism at its end but in the nascent state, and that state is constant. ''~4 And this, for Lyotard, redefines the field of conflict. Politics is rejected as being always already constituted and irredeemable: "The language game of legitimation is not state-political but philosophi- ca]." 45

Lyotard erects this (suspiciously modernist-looking) dichotomy between politics and philosophy in order to distance himself from Marxism and emphasise that power resides not in the "State" but in the "System". Since the State cannot be anything but the congealment of truth, one must bracket it and its problems in order to locate its various discursive and systemic antecedents. Yet having located tl~e System one must ther~ refuse to acknowledge it, deny its possibility, fail to recognise the possibility of its possibility. Having located philosophy as the locus of truth- production (language and concepts) philosophy is made a vortex, at the same time as the se l f - - its s u b j e c t - is fractured. The Other appears, and it is outwith the bounds of Truth. But my concern is that to speak from the vantage point of Other is not to speak at all, at least not coher- ently. ~6

43 44 45 46

Ibid., at 81. IBM., at 79. Lyotard, supra n.6, at 33. My contention is that Lyotard and Baudrillard (and Stoat0 posit a distinction between speaking the voice of Other and speaking from the vantage point of Other. Thus the "transgressions" of French poststructuralist feminism, in speaking the voice of woman as though she were Other in fact complement the fundaments of moderrfism, viz. that "Woman" exists. This, for Smart, simply does not escape the discursive/the Modern. It is necessary to move outside of" such "descriptive" (constructive) categories. And this is why the task of speaking from the vantage point of Other is so

18 RALPH SANDLAND

This, it seems to me, is to offer a strategy of "no resistance", one posited on (implicitly looking forward to) the "end of identity" but which is unable to deal with the Here and Now, which offers no mechanism to actualize its vision. To forsake politics for philosophy in this way is not merely methodologically suspect (because it constitutes these disciplines in the process) but it also renders the "post" discourses politically suspect on their own terms because in making this distinction these d i s c o u r s e s - as d i scourses - - recognise their own modernity (hence Baudrillard's irony). Faced with this choice between having to accede to modernity in giving voice to the Other, or resisting modernity through silence, both Baudrillard and Lyotard opt for the latter v. My point here is that Smart's work too is an example of this tendency. For exam pie, in her discussion o f rape she refuses to react politically but onl~

philosophically. She rejects the relevance of her "visceral reaction and anger" to the legal construction of rape because reacting in terms of one's identity "does not allow for the desexuating of women's bodies. ''4~ Women, she argues, must reject their construction as "victims" of rape because "victim" is an always already loaded term. Deployed in an analysis of rape the idea of woman-as-victim intersects the familiar range of cultural meanings which speaks of women's inferiority. Woman-as- victim merely "confirms women in their discursive place" as woman-as- victim ° .

Yet is it the case that all discourse must be rejected if we are to es-

problematic: because in rejecting the basic modernist categories as the basis of understanding, all reference points are obl i te ra ted- there is no place outside of discourse/language from which to articulate oppos i t i on - yet this is the position from which Smart, qua poststructuralist, claims to speak.

47 It is certainly possible to find a similar line of thought in Foucault's work. In "Two Lectures", sul)ra n. 14, he wondered "is it not perhaps the case that these fragments of genealogies are no sooner brought to light, that the particular elements of the knowledge that one seeks to disinter are no sooner accredited and put into circulation, than they run the risk of re-codifica- tion, re-colonisation?", at 86. This, however, should not be taken to be definitive of Foucault's position on this question, as I shall show below.

48 Smart, supra n.5, at 207. 49 ... of course, this concern of Smart for woman as victim is to shift usages of

the "Other". Here woman is presented by Smart in the orthodox feminist sense as man's other. Therefore, it is possible to detect either a contradiction (a weakness) or a tension (a strength) in Smart's thought. I shall argue below that it is the latter view which should prevail.


cape the confines of Truth? Can we in fact situate ourselves outside of the power~truth/discourse nexus? As I have already argued above, Smart's claim rests on the view that through dichotomising politics and philosophy, etc, and then jettisoning the former and collapsing the la.t- ter, we can indeed do this. However, as she confesses, "This may mean ... moving out into unchartered territory. ''5° And this vagueness and uncertainty, I would argue, speaks of the unresolved tension inherent in "presenting the unpresentable" This conceptual blockage, it seems to me, is only required because of Smart's rigid allegiance to her di- chotomous model of analysis - - the philosophy/politics, etc, distinctions that she makes. But if we collapse the distinction(s) then does not the tension re-emerge as a space for dialogue? That is, instead of accepting this modernist dichotomy uncritically, we appreciate both the constraint that it places on us a~d its contingency. Pat Carlen has recently argued that the challenge posed by the "post" discourses is how we are to learn to work within "the contradiction of having to recognise (in the process of politics) but needing to deny (in the process of knowledge-production)"51. So, for example, rather than refusing to enter into (the) discourse (of the victim of rape) is it not more fruitful (at least sometimes) to attempt to supplant the notion of victim with an empowering discourse, based on the concept of Survivor? 52 __ even if this does not challenge the discursive category "Woman"?

For sure, this approach must acknowledge that in the act of presenting the unpresentable it becomes the presentable. That is, the necessity to function critically u, ithin the categories that we seek to deconstruct is conceded. But in so doing the embargo on intervention is lifted. A strategy of non-participation is now seen as an essentialist position which is insensitive to the contingency of dominant meanings and which re- duces the strategic possibilities to be derived from poststructuralism to an a priori theoretical commitment to the rejection of Identity. Similarly, to argue, as Smart does, that every statement which can be in - terpreted as a truth claim is implicitly posited on an essentialist ethic is itself also a totalising claim, tn the desire to escape Truth all speech is

50 Smart, su]~ra n.5, at 208. 51 P. Carlen, "Criminal women and criminal justice: the limits to, and poten-

tial of, feminist and left realist perspectives", in Iss,¢es in Realist Crirninolo~,, ed. R. Matthews and J. Young (London: Sage, 1992), 53.

52 L. Alcoff and L. Gray, "Survivor Discourse: Transgression or Recupera- tion?", Sisns, (Winter 1993), 260-289.

20 RALPH SANDLAND

demonized as modernist, to the extent that the requirement to disengage becomes a Truth in itself. And here is the hub of it. Even "silence" is posited on a foundational belief, a first principle, albeit that it is the principle that there can be no principle. Silence then begins to look suspiciously like a Grand Theory.

Poststructuralism, if it is to recognise its own investment in the will to knowledge, must cultivate a sceptical perspective on its own scepticism 53. The limits of deconstruction must also be recognised. Smart's argument comes unstuck because she appears to claim that the analytical tools of"deconstruction" and "fragmentation" do not merely undermine the concept of truth, but are treated as though they nulli~ the effects o f its deployment. That is, she treats society as i f it were free from the metanarrative, and uses "decentredness" as ~fthe forces represented by these meta-narratives had not "always already" infiltrated our thought patterns. It is almost as if, for Smart, illustrating the contingency of gender is, of itself, sufficient to eradicate gender both conceptually and in its material effects ~. Silence then begins to look suspiciously like wishful thinking.

Ultimately, the justification for the primacy that Smart, following Lyotard, accords to philosophy over politics can only be that the former gives greater autonomy than the latter. This implies that to abandon politics is somehow to abandon values, subjectivities, lesser forms of, or contaminated, knowledge. But of course Smart's poststructuralism is a recognisable political position in itself. Falling into her own trap, she fails to see that one cannot "be" a poststructuralist. Such a claim is too "determinate". Smart eloquently warns of the dangers in couching claims in terms of identity, but her case is not so strong that it precludes all such claims. She does not tackle the central problematic in her posi-

53

54

Therefore the distinction commonly made (see for example Rosenau, supra n.39) between "sceptical" and "affirmative" postmodernism is false. Being sceptical of scepticism allows one to mediate between scepticism and affirmation. See D.L. Rhode, "Feminist Critical Theories", Stanfard Law Re- view 42/3 (1990), 617-638. This point has been made by M.J. Frug, "A Postmodern Feminist Legal Manifesto (An Unfinished Draft)', Harvard Law Review 105 (1992), 1045- 1105, at 1051-1052, where she argues that "Sceptics tend to think, I be- lieve, that the legal &construction of"woman" - - in one paper or in many papers, say, written over the next d e c a d e - will entail the immediate de- struction of "women" as identifiable subjects who are affected by law reform projects ... [but] "women" cannot be eliminated from our lexicon very quickly ... "


tion, which is that appeals couched in terms of (something which looks like) truth are all that are available to us in the present position. 55 We m u s t - empirically, politically, by reference to some normative measure - - weigh the tactical and strategic advisability of both silence and the positive articulation of opposition in the specific context which has arisen. We must decide when to trade only in "allusions" and the unsaid and when (and then how) to represent the unpresentable in a discourse which is comprehensible to modernity. We must work within this ten - sion of being sceptical of truth and sceptical of our scepticism; within this space opened up between "truth" and "difference".

3 BetweenTruthandDifference

Reform is a "stupid and hypocritical" notion 56

movements labelled "sexual liberation" ought to be understood as movements of affirmation "starting with" sexuality. Which means two things: they are movements that start with sexuality ... and which make it function to the limit; but, at the same time, they are in motion relative to it, disen- gaging themselves and surmounting it. 57

As mentioned above, Smart's poststructuralism draws most explicitly on the work of Foucault. Yet it is clear from these two citations that Foucault can not be pinned down to a consistent approach. Even as a genealogist there is the earlier Foucault of Discipline and Punish and the first volume of The History of Sexuality who worked with a notion of power which saw power relations as unilateral and unfailing, and the later Foucault who added a new inflection to his analysis, namely an emphasis on resistance, on an "ethics of the self" as a potential site for the establishment of counter-identity. As Merquior puts it "the self remains prey to power, but now the story of its production by power is told., as it were, j%m the inside. "58 Analytically, Smart is aligned with the earlier work. Her recent output has utilised Foucault's positive-pro-

55 Sawicki, supra n.37, at 101. 56 M. Foucault Interview with J.-L. Ezine in Nouvelles litteraires, 2477 (17-25

March 1975), cited in J.G. Merquior, Foucauit (London: Fontana, 1991), 118.

57 M. Foucault, "Power and Sex", in Kritzman, st~pra n.24, at 114-115. 58 Merquoir, supra n.56, at 119 emphasis in original. See also P. Dews, "The

Return of the Subject in the Late Foucault", Radical Philosophy 52 (1989), 37.

22 RALPH SANDLAND

ductive reading of power to critique Law, laws, criminology and feminism. Each has been damned for its failure to escape modernism and reject the possibility of Truth. But the problem here is that she has not taken on board Foucault's triangularization of t e r m s - dominance- submission-resistance - - preferring instead to operate within the domi - nance-submission binarism that is the more familiar territory of modernist radical feminism. "Law", "woman", and so on are recognised only for their dominatory effects. 59

Yet arguably it is the later focus in Foucault's work which has been more central to feminist investigations of its value c°. Although it is not unproblematically useful, Foucaults's exhortation that we resist power through creating ourselves as works of art, because it reintroduces the sited subject, confounds simplistic pigeon-holing of Foucault as a post- modernist 61 and affirms a notion of political agency which can co-exist within and against discursive power configurations.

This is not the place to explicate a detailed consideration of Foucault's views on the self. But briefly, Foucault saw his work on sexu - ality as becoming less concerned with sexual practices and their regulation and more concerned with the "technologies of the self". Sexuality, Foucault discovered, is only the most recent vehicle for the practice of these technologies. He saw in the mechanics through which the self is constituted and reconstituted a reciprococity and dialogue that was ab- sent in his earlier work. In 1982 he conceded that "perhaps I've insisted too much on the technology of domination and power". His attention was now more explicitly focused on "the history of how an individual acts upon himself, in the technology of the self. ''ca The rhetoric of "docile, useful bodies" was now set in tension with an active subject. In

59 Smart, for example, seems almost at one with Catherine MacKinnon on the meaning of the abolition of the marital rape exemption: see below.

60 See, in addition to the works cited in this paper, the collections Feminism and Foucault: Reflections on Resistance, ed. I. Diamond and L. Quinby (Boston: Northeastern University Press, 1988) and Up Against Foucatdt: Explorations of some tensions between Foucault and Feminism, ed. C. Ra- mazanoglu (London: Routledge, 1993).

61 L. McNay Foucault and Feminism (Cambridge: Polity, 1992), especially at 130-132.

62 M. Foucault, "Technologies of the Self". Originally given as a seminar in 1982, this paper was published posthumously in 1988 in the collection Technologies of the Self, ed. L. Martin, H. Gutman and P. Hutton (London: Tavistock, 1988), 19.


an interview, conducted at the time that The Care o f the Se/fwas in progress, Foucault explained that

What I want to ask is: Are we able to have an ethics of acts and their plea- sures which would be able to take account of the pleasure of the other? Is the pleasure of the other something which can be integrated in our pleasure? 63

This, then is Foucault shifting to a middle ground which still rejects the meta-narrative and the Freudian creation of sex-as-identity but which also rejects the postmodernism of Lyotard or Baudrillard as operating with a rather unsophisticated and counter-intuitive understanding of difference as total and unbridgeable. That is, Foucault seems to be saying that mutual sexual pleasure acts as a metaphor for a dialogue betwee1~. Self and Other more generally and, therefore, that a degree of consensuality in political action is possible:

It is perhaps a critical aim to maintain at all times: to ask onesdfwhat pro- portion of non-consensuality is implied in such a power relation, and whether that degree of non-consensuality is necessary or not, and then one may question every power relationship to that extent. The farthest i would go is to say that perhaps one must not be for consensuality, but one must be against non-consensuality. 64

Foucautt's work always rested on the vague use of some key terms - - no- tably " p o w e r " - - but here he acknowledges that power can be more or less powerful, more or less total in its effects, and that, therefore, an oppositional agenda can transcend the individual. That is, a campaign against the "government of individuality" can be, in some measure, a collective campaign.

Foucault's idea of the self as a work of art has been criticised for its aestheticism, as having tendencies that are the presewe of % privileged elite who do not have to face the harsh political and material realities of life. ''65 But this criticism seems to be without force, because it is appli- cable to any oppositional political movement, and in fact is a good deal less relevant to Foucault's stance which, like feminism but unlike, say, Marxism, locates revolutionary politics in the realm of everyday life.

63

64

65

M. Foucault, "On the Genealogy of Ethics: An Overview o1~ Work in Progress", in The Fo,~cau# Reader, ed. P. Rabinow (London: Penguin, 1984), 346. M. Foucault, "Politics and Ethics: An Interview", in Rabinow, s,~t>ra n.63, at 379. McNay, s~tpra n.61, at 159.

24 RALPH SANDI AND

The more pertinent point made by McNay is that Foucault does not elaborate on how we are to recognise the self-constituted-self from the normalized self. In other words, Foucault's constant and well-known refusal to explicate a normative base for resistance gives us a rather sketchy idea of what the self-constituted-self might look like, or how it is to be achieved. Furthermore, she argues, the analytical primacy that Foucault gives to the Self over the Other leaves open vital questions for political activity:

the individual cannot distinguish between what constitutes a radical exploration of identity and what is simply an arbitrary stylization of life. Without an understanding of how the individual's actions are constantly mediated through interaction of other individuals, Foucault cannot explain how the potential uncovered in the exploration of identity can be commu- nicated to others in order to initiate progressive change. 66

Additionally Foucault continued in the final phase of his work to fail to rescue gender from the margins of his analysis.

Yet there is clearly much common ground here both with feminism and with non-feminist critical theory, tn particular, there is a conver- gence between the fracturing of the Unified Woman and Foucault's positing of a middle ground between "Truth" and "Difference". And there is now a growing body of work developing outside of 67 and from within a feminist perspective ca which is intent on exploring the possibilities to develop what has been called an "ontology of difference" by Coles or a "politics of difference" by Sawicki, which is intent on fleshing out Foucault's unelaborated remarks and which begins with an understanding of truth as subsisting within this triangulated but also open- ended grid of dominance-submission-resistance.

This approach shares Smart's reading of truth and sex-as-identity but uses the idea of fragmentation as a positive tool, as the basis for an alter-

66 McNay, supra n.61, at 165, and see also N. Fraser, "Foucault's Body Lan- guage: A Posthumanist Political Rhetoric?", ch.3 of Unruly Practices: Power, Discourse and Gender in Contemporary Social Theory (Cambridge: Polity, 1989).

67 R. Coles, "Foucault's Dialogical Artistic Ethos", Theory, Culture andSociety 8 (1990), 99-120.

68 In addition to the work of Sawicki, McNay and the collections edited by Diamond and Quinby, and by Ramazanoglu, see also N.S. Love, "Politics and Voice(s): An Empowerment/Knowledge Regime", Differences 3/1 (1991), 85-103; and K. Soper, "Postmodernism and its Discontents", Fem- inistReview 39 (Autumn 1991), 97-108.


native, multi-centred truth which affirms our differences in a non-hier- archial fashion. The overriding prescription is for a paradigm of tolera- tion, dialogue and reciprocity. Love has argued that poststructuralism has overemphasised the metaphor of power as vision, (as in Foucault's reading of the Panopticon as the eye of power), which is inconsistent with the view of power as relational. She suggests that vision must be com- bined with the metaphor of voice. Coles too argues that to reveal the "otherness" which has been subjugated in all of us requires "dialogical engagement ''69 because "our experience of otherness begins when we sense the surplus of the other." ~

It might seem pedestrian to insist on this inter-exchange of vision and voice, but its importance lies in the fact that it points to the totalizing tendencies in Smart's position. Having identified Sameness through Truth, she advocates an allegiance to difference which is so splintered that the individual, let alone the group, is denied the possibility of self- recognition and self-reflection. Smart seems to be saying that we are ail so hopelessly "decentred" that we are unable to form a view or interpretation, even on a temporary basis. To argue in this way is to collude in the project of building theories for use in some wished-for society where there is always already nothing but difference, and fail to take on board the fact that within modernism differences have been radically collapsed and levelled: that paradoxically, shared oppression/identity/readings of identity is the common thread which can unite individuals and thus form a basis for resistance. Foucault recognised this when he argued, against the notion of Auflelarung, that there is "another way to go further towards a new economy of power relations, a way which is more empirical, more directly related to our present situation, and which implies more relations between theory and practice. It consists of taking the forms of resistance against differing forms of power as a starting point." 71

Thus contra Smart, a dialogically-oriented ontology recognises that the possibility of finding or negotiating common ground inheres not in the firming up of a prescriptive commonality but in the dialogical exchange. This is not the Sameness of the meta-narrative which categorises with relentless binary logic, but the recognition that there is enough

69 Coles, sl¢pra n.67, at ! 12. 70 Ibid., at 115. 71 M. Foucault, "The Subject and Power", in MichelFoucault: Beyond&ruc-

turalism and Hermenutics, ed. H. Dreyfus arid P. Rabinow (London: Har- vester, 1982), 210-211.

26 RALPH SANDLAND

common ground between individuals and groups, at specific times and places, to authorise political demands without falling into the essentialist trap. ~2 If poststructuralism is prepared to take this step then it can begin to move out o f the metaphysical impasse o f the modernism/postmodernism dualism and the "dilemma of knowledge" which it creates and begin to sketch out criteria for the construction of inter- ventionist strategies. In short changing the metaphor is what enables us to collapse the distinction between philosophy and politics: "Here is not a question of an analytic of truth, but what one might call an ontology of the present. ' '~ That is, the preoccupation with essentialism simply becomes less of an issue. We might even deploy "essentialism" if to do so is strategically indicated. 74 The concern now is, whenever possible, to accentuate commonality: with the question "What do we agree upon today ?"

This approach has resonances of the pluralism of American liberal

72 The concept of consensus has been to a large extent hijacked by Habermas with his theory of communicative rationality. And it might seem that the notion of consensus through dialogue is uncomfortably similar to Haber- mas' position. It is well known that Lyotard has lambasted Habermas on the grounds that, conceptually, communicative rationality "ravages the het- erogeneity of the play of language [and] would do away with the dissent which is at the root of inventions" (supra n.6, at 8). However, I would argue that in Lyotard's replacement (of"dissensus") there is, at a minimum, an agreement to disagree, and that this is not incompatible with an approach to dialogue which both looks for agreement but also accommodates contradictory views without attempting to reconcile them, and that, therefore, Lyotard takes his argument further than is warranted by the concepts which he is using. Here I am following Sawicki (supra n.37, at 28), who argues that "difference can be a resource insofar as it enables us to multiply the sources of resistance to particular forms of domination and to discover distortions of our understandings of each other and the world. In a politics of difference ... redefining our differences, learn ing from them, becomes the central task".

73 M. Foucault, "Kant on Enlightenment and Revolution", Economy and Sod- ay 15/1 (1986), 88-96, cited in Coles, supra n.67, at 106.

74 It has been argued that the important question is not whether a particular argument or text can be seen as essentialist, but rather "what motivates its deployment, how and why it is invoked and, most importantly, what are its political effects": McNay, supra n. 61, at 21, citing D. Fuss, Essentially Speaking: Feminism, Nature and Difference (London: Routledge, 1989), at p.xi, in which Fuss develops an exemplary argument to this effect.


politics vS, and indeed it is a Politics of the Maverick. But this is a su- perficial similarity. Liberalism never achieves the liberal goal. As a morally informed discourse it is posited on restraint. In its more radical form, as a liberatory discourse, it forgoes dialogue and hence lacks normative grounding. It has been argued, for example, that "sexual freedom requires ... refusing to draw the line on what counts as politically correct sexuality. ''76 This radical liberalism is aligned with Smart in its aban- donment of politics and values. It parts company with Smart, and the alternative reading of poststructuralism offered here, in its cavalier attitude to the oppressive features of sexuality. Using the dominance- submission-resistance framework emphasises ambivalence - - that sexual - ity is "given" in a very real sense, and has pornographic and oppressive purchase, and yet is potentially a site for liberation. In other words, this triangularization of terms, when activated in the legal-political sphere, does not see the dilemma which insists that we reject interventionism with the rejection of Truth, as Smart argues, but sees instead the tension which reveals that "relaxing restraints on sexuality is not inherently lib- erating" 77 and which therefore forecloses on disengagement as an on-going response. The road to desexualization, from where we stand no,v, is fraught with danger and uncertainty. It requires a politically engaged jurisprudence.

Such a jurisprudence must necessarily advocate a somewhat eclectic attitude to law reform. It must prioritize the abolition of legal restraints on sex(uality)/gender (i.e. the &construction of the legally-sexed sub ject) and yet immediately temper the "purity" of this aim with an awareness of its risk factor. My point here is that Smart's concerns with tl~e construction of identity, and the manufactured and totalizing quality of truth actually free up the possibility of thinking in this way. The heuris - tic power of her model excavates the cultural, geographical and temporal specificity of sex, and reveals the "erotic populations" who benefit from these particular configurations. Her work, in that it simultaneously ac- cepts the reality of oppression on the grounds of gender, sexual orienta- tion, race, etc, and yet dismisses these categories as contingent and frag- ile, is itself produced in this dialogical tension between recognition and

75 A point made by Rosenau, supra n.39, at 165. 76 A. Ferguson, "Sex War: The Debate between Radical and Libertarian

Feminists", Signs 10/1 (1984), 106-112, cited in Sawicki, s,~pra n.37, at 34. 77 Sawicki, s~ra n.37, at 39.

28 RALPH SANDLAND

denial. 78 I want to suggest that this leads, not to deconstruction over reform, as Smart argues, but towards a case by case evaluation of the merits o f one goal over the other. The aim should be to identify those situations in which deconstruction and reform merge. In the legal arena it is no longer a case of sex-as-truth, but rather the question of how, and when, phallocentric truth can best be subverted. In the final section of this paper I want to illustrate how such an understanding of the implications of poststructuralism impacts upon the construction of strategies geared towards sexual freedom.

4 Deconstruction Through Reform: Some Examples

One point on which there is almost universal agreement amongst critical legal scholars is that law tends to be blind to difference, on the one hand, and to collective identity on the other. All before law are equal: no gender, no race, no class. And it is well-appreciated that it is this refusal to accommodate substantive inequalities within legal discourse which is law's most pernicious feature. Life is lost in the translation to law. Meanings are variously selected, rejected and refashioned to make them amenable to legal discourse. The preferred strategy of law is the promulgation of a focus on technicalities which bemuses and mysti- ties and allows law systematically to change the subject, thus giving rise to the possibility of the legal non-discourse on sexuality and gender. Both feminism and poststructuralism have been concerned to mount a critique of this methodology. 79 But most often the agenda has been to unpack or deconstruct law's claims in order to reveal law's oppressive and essentialist underpinnings. I want to start from a slightly different position, by asking: Why does law always attempt to change the subject? Maybe part of the answer is that entering into a debate on sexuality is a dangerous strategy for law. Perhaps we would do well to appreciate that law appreciates the danger to its own legitimacy in entering into such a discourse. In other words, I want to suggest that a "de-fetishized" understanding of law should be sensitive both to law's claim to Truth and to the contingency of such claims. I want further to suggest that this

78 I think it likely that in the final analysis my criticism of Smart is not so much aimed at what she does but at what she says that she is doing, i.e. at her deconstructionist rhetoric.

79 For a good recent example see R. Graycar and J. Morgan, The Hidden Gen- der of Law (Annandale: Federation Press, 1990).


point is particularly pertinent when gender or sexuality is "the" issue precisely because gender and sexuality are constructed by law as being "beyond construction" and in this sense "beyond law": these things are seen as "given" and hence not "constructed" at all. \Y4hen law is called upon to adjudicate on gender or sexuality, the fallacy of this claim is implicitly acknowledged. And it seems to me that only an essentialist, monolithic reading of law could suggest that, in every instance, it is law's legitimacy (or, at least, only law's legitimacy) which stands to benefit from this entering into discourse. In this final section I want to look at three recent appellate court decisions (R. v. R. [1991], 80 U.K.v. Cossey [1991] 8~ and/~ v. Brown andothers [1993182), each of which raises different questions and demands a particular refinement of the general strategy of desexualization/deconstruction.

The first case i want to consider is R. v. R. R. v. R. constitutes the final nail in the coffin of the so-called marital rape exemption, the cu]- mination of a gradual chipping away at the principle that a man is au- thorised by the fact of marriage to unfettered sexual access to his wife. As such, the case was widely recognised as a "good decision". But the curious point is that, whilst meeting with muffled praise from within the legal establishment, a3 it is also the case that feminist contemplations of the abolition of the marital rape exemption have been similarly lacldus - tre, although for different reasons. I want first to look at the case from the point of view of legal orthodoxy, and then consider what can be learnt about this unease and its implications for decentring lave.

To understand the ambivalence of the mainstream of legal thought it is necessary to put the substantive issue aside and look at the mode of reasoning employed by Lord Keith, who gave the only judgement in the House of Lords. The case hinged on the wording of S. 1 of the Sexual Offences Act 1956 as amended by the Sexual Offences (Amendmel~t) Act 1976, which provides, inter alia, that

a man commits rape i f - - (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse did not consent to it...

80 [1991] 4 All E.R. 481-490. 81 [1991] ECHR Reports Series A no. 184. 82 [1993] 2 All E.R. 75-124. 83 See for e×ample J.C. Smith, "Comment on R. v. R.", ~1992] CriminalLaw

Review 208-209, and M. Giles, "Judicial Law-making in the Criminal Courts: the case of marital rape", [1992] Criminal Law Review 407-417.

30 RALPH SANDLAND

Counsel for the appellant argued that the word "unlawful" should be taken to mean "outside of marriage", as intercourse in the absence of consent was in any case unlawful and hence the word added nothing to the subsection, other than to affirm the common law rule i.e. the marital rape exemption. The logic of this argument seems unassailable and the weight of academic opinion was firmly behind it. This is perhaps not surprising given that it was indeed Parliament's intention 84 in 1976 to retain the exemption, as

However, Lord Keith rejected this approach. He pointed out that "That is not the most natural meaning of the word...in modern times sexual intercourse outside of marriage would not ordinarily be described as unlawful." m From this he drew the conclusion that "the fact is that it is clearly unlawful to have sexual intercourse with any woman without her consent and the use of the word in the subsection adds nothing. "87 In other words, Lord Keith took the view that the word "unlawful" was "meaningless" because the only meaning which could be attached to it was that the marital rape exemption was thereby retained, and his lordship was simply not going to give the subsection that interpretation.

The reason for this purposeful (mis)reading of the Statute and disregard for the common law presumption against surplusage is not hard to find. That the marital rape exemption should continue to have currency is an idea that "in modern times any reasonable person must regard...as quite unacceptable. ''88 His lordship concluded by citing with approval the comment of Lord Lane in the Court of Appeal that the exemption "has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it." m The "absurdity of the fiction ''s° of consent was finally recognised as such. And Lord Keith's strategy (of holding that social conditions had changed, so that the exemption had "become" anachronistic 9I) cannot disguise the deci-

84 I shall let this fiction pass. 85 V. Laird, "Reflections on R. v. R.", Modern Law Review 55 (1992), 386-

392. [1991] 4 [1991] 4 [1991] 4 [1991] 2

86 ALL E.R. 481, at 488. 87 ALL E.R. 481, at 489. 88 ALL E.R. 481, at 484. 89 ALL E.R. 257, at 266. 90 [1991] 4 ALL E.R. 481, at 486. 91 See further the discussion in chapter one of K. O'Donovan, Family Law

Matters (London: Pluto, 1993).


sion as a departure from 250 years of settled law. In the process both the Court of Appeal and the House of Lords brought the law into "disrepute", cocked a snook at the constitutional orthodoxy of the UK and usurped the deliberations of the Law Commission, which at the time the case was decided was pursuing a brief to recol~sider the efficacy of the exemption. It is perhaps not going too far to say that R v. R, in legal terms, was a quite heretical decision.

If the purpose of this enquiry was to consider, say, claims that law functions as a "normatively closed" system, R. v. R. could be taken as evidence that this is in fact not so. Ra~her, I would suggest that in this case legal method was in fact jettisoned and usurped by other considerations: that is, this "reform" is notable both because legal method was usurped and for the identity of the usurping discourse. This view, however, is not shared by Smart or Catherine MacKinnon. Both view the abolition of the marital rape exemption as a reform of marginal or no significance. Smart has argued that in the area of rape law "reforms are not simply slow but [] may be injurious to women or they may simply hide or relo - cate the fundamental problem. "92 Likewise, MacK~nnon conjectures that "[a]s marital rape exemptions erode, preclusions for cohabitants and voluntary social companions may expand .o. In this light, the partial ero - sion of the marital rape exemption looks less like a change in the equation between women's experience of sexual violation and men's experience of intimacy, and more like a legal adjustment to the social fact that acceptable heterosexual sex is increasingly not limited to the ~uclear family. ''~ This is a forceful argument, not least because it "fits the facts". Men who cohabit outside of marriage did not fall within the ambit of the exemption. But rules of evidence which incorporate the "assumption of consent" afford protection equally m husbands and ~hose men otherwise acquainted with their attackees prior to t.he rape. The marital rape exemption can therefore be seen as both anachronistic and superfluous to the task of protecting men from a rape conviction, as much at it is anachronistic in the sense of being "offensive".

But to sustain this analysis it is necessary to make several unacceptable moves. First, experience must be totalized and essentialized (every heterosexual relationship is, and in the same rneasure, a microcosm of

92 Smart, 5ultra n.9, at 43. 93 C. MacKinnon, To,yards a Fern#~ist 7~heo~3v of t/~e Stare (London: Harvard

University Press, 1989), 176.

32 RALPH SANDLAND

the patriarchal blueprint). 94 Second there is an implicit reading of history as being explicable in terms of one dynamic (male sexuality) which leaves no room to take account of resistance and opposition to its functioning. Nor is there any countenance taken of malfunction, dysfunc- tion or less than total effect of this dynamic. Thirdly, it must be possible, either to impute this analysis to Lord Keith (this was the basis on which he came to his conclusion), or to rely on notions of false consciousness, as applied to men (they don't know what they're doing, but they nevertheless get the result they "want" i.e. continued protection from charges and convictions of rape). And taken together, these three points suggest a fourth, which is more significant. The danger inherent in this view - - that the general international trend of which R. v. R is an example is best characterised as an adjustment (with negative consequences for oppositional political positions) rather than a refarm (with positive consequences) - - is that the su~Cace of the law is of no concern, or rather, that it functions merely so as to make "male dominance both invisible and legitimate ''95 providing a beneficent veneer beneath which lurk ulterior, properly patriarchal, motives.

This sort of analysis is useful insofar as it reminds us of the multiplicity of patriarchal strategies, and of the fact that what looks like a victory can be hollow in itself, or can be subverted so that what we get is a displacement rather than a reduction in the hegemonous control of patriarchal power. Power and control are, on this analysis, merely fed through to different locations on the social grid. But perhaps, ultimately, it is not a helpful analysis. It falls into the modernist trap with its invitation to look for conspiratorial explanations and essentialist outcomes. This in turn does not invite an analysis of the legal text as gener- ating a multiplicity of meanings which may be contradictory. Instead, we are required to decide whether R. v. R is "really" a victory or whether it is "merely" a strategic shift. This implies a unity in the text which simply cannot survive the poststructuralist critique. If we are operating with a "flattened", refracted, understanding of law, no reading is necessarily "deeper" or truer than any other since this sort of "depth herme- neutics" is rejected as a methodology. In short, this type of approach forecloses on the struggle for meaning by positing that the battle is already lost at some deeper "theoretical" level.

94 E. Jackson, "Catherine MacKinnon and Feminist Jurisprudence: A Critical Reappraisal", Journal ofLau, & Society 19/2 (1992), 195-213.

95 Mackinnon, sttpra n.93, at 237.


A further problem with this approach is that it also falls into the revolutionary trap which posits that anything short of immediate and to - tal victory is defeat. Given that, when the issue in question is the social construction of reality, total victory as a concept makes no sense, the "modern" revolutionary must always fail: what looks like a victory is in fact a victory for the other side. Again this would seem to be overly pes - simistic because defeat is seen as inevitable. But the nature of ontological change is piecemeal, incremental and alinear.

Turning this around, it can be argued that this an'alysis rests on the (unacknowledged) contradiction that, in MacKinnon's words "the state is male, ''96 or in Smart's, that the problem is the "rnaleness of law, "97 whilst on the other hand the philosophical rejection of the impossibility of marital rape is ascribed to liberalism (law). But the idea that a man. can rape his wife is demonstrably nat a liberal idea: liberalism for the best part of its history has propounded quite the opposite. In short, femi o nism, whether radical or poststructuralist, seemingly has a reluctance to define outcomes in the struggle against patriarchy in positive terms. Rather, attention is focused on the "strategic shift" in patriarchal domination. The question of why such a strategic shift was rendered necessary is left begging ... What oppositional power forced the change in strategy? How, why and which social relationships have changed so that, at last, the marital rape exemption can no longer be justified?

Putting the point bluntly, I feel that there is a danger in this sort o£ approach of understating its own political and jurisprudential purchase as a subversive force interrupting the "unmodified" liberal paradigm. A more "post" analysis would require a more contextual, less meta-.theoret- ically informed approach that would locate R. v. R, as a symbolically significant juncture in one particular struggle around the meaning of sex and the invisibility of gender (woman) in legal discourse. This is not to deny that the arguments for the non-possibility of rape within rnarriage are amongst the weakest in the range of patriarchal justifications, and so amongst the easiest to knock down. But it is to insist that, first, the symbolic is as significant as the material when considering the construction of real i ty-- so that it is incorrect to see a "symbolic" victory as being "merely phyrric", and undermined by the material reality of (marital) rape. O'Donovan 98 has argued that the continued existence

96 MacKinnon, supra n.93, at t61. 97 Smart, supra n.9, at 26. 98 K. O'Donovan, "Marriage: A Sacred of Profane Love Machine?", Feminist

34 RALPH SANDLAND

and attraction of marriage is explicable in terms of its symbolic aspects, its "mythic tradition", which have been relatively untouched by the ma- terialist critique. The same is true in the present context. It is as important to deconstruct the symbolic aspects of male sexuality-as-dominance, alongside changing the practices and relations of gender. Second, the affiliation to grand theory which requires that specific events - - such as R. v. R. - - are ascriptively located within a methodology which moves from the general to the particular, and so detects no particularities, but merely examples of a general proposition, must likewise be rejected. "Decentring" the law does not render this approach useless, but if we are to look for a range of meanings within the text of R. v. R. then we can place alongside it recognition of a significant event in the genealogy of and opposition to patriarchal power. My point here is that although Lord Keith purported to apply legal method and reasoning techniques, his decision was the product of another, different mode of reasoning, informed by a different "truth". 99 In Smart's terminology, Lord Keith was, at this moment of his "fractured" existence, a feminist. Whatever the link between the abolition of the marital rape exemption and the rules of evidence in rape trials, Lord Keith posits an autonomy residing in the body of the married woman that abruptly interrupts the discourse of the female body-as-property that was propounded by Hale and has operated normatively and covertly for much of the ensuing time-period.

This, I would argue, is a positive reconstruction of Woman by law which in the process demonstrates the open-endedness of legal discourse. It suggests a strategy which would seek to identify those points in the discourse where an appeal to "justice" might be sufficiently compelling to persuade law to bring itself into "disrepute". Moreover, there is of course little cause to resist the abolition of marital rape as a legal impos -

99 LegalStudies 1/1 (1993), 75-90, at 81. C. Bell in a case note on Planned Parenthood of Southeastern Pennsylvania et al. v Robert Casey et al., Ferainist Legal Studies 1/1 (1993), 91-102, makes a similar point about the judgement of O'Connor et al in Casey, arguing that "Although this decision (i.e. Casey) will negatively affect many women who seek abortion, it contains glimpses of a type of discussion which is feminist in means as well as ends" (at 97). And see also the dissenting opinion of Judge Martens in Cossey and the dissenting opinion of Lord Mustill in Brown. Although I do not have space here to consider these judgements in detail, it seems to me that the carving out of a space in the text of law for counter-discourse is a project which can only help both to decentre law and promote alternative versions of reality.


sibility. What this case does show us, therefore, is that poststructuralist feminism, in isolating the particular relations of power that are manifest in the exemption, must be ready to extend the legal control of sexuality when to do so has the effect of displacing male oppression of women with legal censure of a construction of a masculinity which has hitherto been exalted. This tactic, which would be anathema to Smart, is suggested by poststructuralism. Mary Joe Frug has argued that law constructs Woman through the juxtaposition of images which provide for the terrorization, the maternalization, and the sexualization of the female body. She argues that "By deploying these images, legal discourse ratio - nalizes, explains and renders authoritative the female body rule net- work." 100 The marital rape exemption can be seen to sit at the inter- section of these three images. ~°1 As such, its abolition interrupts this configuration in that it desexualizes the Wife, at the same time that it sexualizes the rapist-husband through regulating (albeit at the symbolic level) his behaviour.

The relevance of this to the present discussion is that R. v. R. reminds us that desexualization as a general strategy is of problematic and uncertain application because sex is not a "thing" but a relation and so the implementation of a particular approach will impact differently upon the various actors involved. This is why, as I suggested earlier, it is im- possible to be "against" reform as an on-going strategy: because on occa- sion a given reform will equate with desexualization from one point of view, but not from another. 102 The wisdom of engaging in reform then becomes a strategic and political question, resting on an analysis of power relations. So for example, deconstruction-through-reform might be feasible here, but not with regard to the category of "rape" itself. It can (and has) been argued forcibly that the desexualization of rape as a strategy "fails to consider the very real power differences betsveen men

100 Frug, supra n.54, at 1050. 101 Rape of course is sex in its terrorized form. Rape (in marriage) emphasizes

most graphically the enforcement of motherhood and the relationship between this and male power. Ironically, when debates around reproduc- tive technology are addressing the right to procreate, the fact is that in practice many men do have this "right" already.

102 R. Colker, "The Example of Lesbians: A Posthumous Reply to Professor Mary Joe Frug', Harvard Law Review 105 (1992), 1084-1093, makes the similar point that for heterosexual women motherhood oppresses through inclusion, whereas for lesbian women motherhood oppresses through exclusion.

36 RALPH SANDLAND

and women, and that rape is in many ways a mere extension of what are culturally defined as "normal" heterosexual relations "~°3 and that it would be improvident, having the effect of bolstering the legal non-discourse on gender, to deny "rape" conceptually. Instead, as I suggested earlier, the better strategy might be to produce "survivor discourse". That is, to change the dynamics of the situation rather than attempt to &construct the category. ~04 It seem to me that implicit in the R. v./~ judgment is the recognition of the socially constructed and asymmetrical notion of (male) desire, so that the sexuality of the married man can properly be brought within the ambit of legal regulation; his sexuality is not outside power/the social after all. Such ambivalence as is caused by R. v. R. stems from the recognition that the decision of itself does nothing to address the shameful state of the law of rape and the extra-legal impediments to combating rape in 1°5 or out 106 of marriage effectively. But the judgement in this case, if phyrric in this sense, does emphasise the possibility for infiltrating and destabilizing legal method.

The second case I want to consider is U.K v. Cossey [1991], which was concerned with "transsexual rights". The transsexual is a particularly problematic entity in gendered terms, on the one hand unsettling the male/female dichotomy, on another cementing it as the defining charac- teristic of being a transsexual (a man/woman in a woman'slman's body). In Cossey, Caroline Cossey had been born a biological male but had un- dergone a sex-change operation, thereafter carrying on life as a women. The point at issue here was the right of the post-operative transsexual to raarry. This translated into the technical question of the legal status of a birth certificate, since the production of such is necessary to enable one to marry. Cossey argued that the details of her certificate were out- moded and should be changed to reflect her female status. This argument was rejected by the English courts, who ruled that a birth certifi-

103 W. Woodhull, "Sexuality, Power and the Question of Rape", in Diamond and Quinby, supra n.60, at 170.

104 M. Los, "Feminism and rape law reform", in Gelsthorpe and Morris, supra n.10, details the unsuccessful attempts to desexualize rape in Canada and the ensuing "backlash" against feminism.

105 See D. Russell, Rape in Marriage (Bloomington: Indiana University Press, 1990).

106 J. Temkin, Rape and the Legal Process (London: Sweet and Maxwell, 1987), although slightly out of date, remains the best analysis of rape as a legal process. See also Adler, st~pra n.23.


care is a document of historical fact recording the details of the birth and therefore cannot be changed to accommodate a change of sex at a later date in the holder's life.

Cossey took her case to the European Court of Human Rights who upheld the ruling of the English courts. She continues to be classified in English law as a male for the purposes of marriage. Now, the interesting point here is not so much that the law reports reveal the centrality to the case of the birth certificate issue, although they do. Rather, it is that the legal debate was framed by a rather shaky allegiance to the male/ferule dualism as biological truths in the face of the clear refutation of this premise to which the existence of transsexualism testifies. ~07 In the more recent case of B v. France ~°8 the appellant, in a similar position to Cossey, argued that it could now be demonstrated scientifically that transsexualism has a biological base. The ECHR, however, rejected this, finding that "there still remained some uncertainty as to the essential na - ture of transsexualism." 109

What we see here is a naked appeal to essentialism. That is, transsexualism as a substantive issue has the capacity to subvert the legal strategy of translation into technicality/changing the subject and forces law to face questions of sex(uality)/gender in a much more direct way than. is ordinarily the case. Law's fundamental values and beliefs are put up for discussion and examination. Although less distasteful and Canute-like than other judicial dicta on transsexualism, I~0 the E C H R ruling never-

107

108 109 110

K. O'Donovan, Sexual Divisions in Law (London: Nicholson & Wei- denfeld, 1985), ch.3. [1992] Council of Europe 25/3/1992; [1992] 2 F.L.R. 249. [1992] 2 F.L.R. 249, at 264. One thinks particularly of Ormrod J.'s outrage in Corbett v. Corbett [1970] 2 W.L.R. 1306. His lordship held that transsexual marriage could not be condoned by the courts because intercourse with a post-operative transsexual "is the reverse of ordinary, and in no sense natural. When such a cavity has been constructed in a male, the difference between sexual intercourse using it, and anal or intra-cural intercourse is, in my judgement, to be measured in centimetres." What a very strange thing even for a judge to say! I must confess that I have never been able to understand the reference to centimetres in this passage from his lordship's judgement, other than to realise that his lordship seemed to view a medically constructed vagina as being more comparable to an anus than a "real" vagina, which analogy seems to beg more questions than it a n s w e r s . . .

38 RALPH SANDLAND

theless exhibits a quite schizophrenic attitude to essentialism, on the one hand affirming the biological-essentialist chromosomal/gonadal/genital test of sex and, in B, searching vainly for a comparably concrete test by which to classify transsexualism, whilst accepting that the time might ar- rive when sex is more properly assessed by psychological and social indi- cators, as is indeed already the case in parts of the USA and several European states. This gives rise to the contradiction that essentialism is both appealed to and yet is implicitly acknowledged as providing a less than permanent explanation of sex(uality)/gender. Transsexualism, in short, forces law into revealing the contingency of its claim to truth. O'Donovan puts this well when she says that

The behaviour of transsexuals, as boundary crossers, illuminates what it means to "pass" as a woman or a man. The significance and the rootedness of our notions of femininity or masculinity becomes apparent, as does the degree to which we pass as woman or man on a daily basis. Perhaps this is why transsexuals are perceived as threatening marriage and unsettling the eternal biological family. ~i 1

This point was also noted by Judge Martens in his dissenting judgement in Cossey: "It seems that the transsexual's attempts to "change sex" in- fringe a deeply rooted taboo ''112. The substance of the taboo is obvious. It is the challenge posed by transsexualism to the easy slippage between "sex" and "gender" that underpins the male/female distinction. Perhaps it is not merely marriage and the family which is threatened by transsex - ualism but the binary categorisation ofsex(uality)/gender more generally.

In the light of the B case, and the possibility that a biologically couched "explanation" for the transsexual as a third category of gender- identity may be on the horizon, it seems to me that the strategy at the present point in time should be to agitate for the adoption by law of a different yardstick. In the Superior Court of New Jersey case of M.T.v. ~.T. 113 the court, upholding the "right to marry" of a post-operative transsexual held that % person's sex or sexuality embraces an individual's gender, that is, one's self-image, the deep psychological or emotional

111 O'Donovan, s~ra n.98, at 83. 112 Per Judge Martens, U.K v. Cossey [1991] E.C.H.R. Reports Series A No

184, at 23. 113 140 N.J Super 77, 355 A 2d 204 (1976). For the position in Australia see

H. Finlay, "Transsexuals, Sex Change Operations and the Chromosome Test: Corbett v Corbett Not Followed", Western Australia Law Review 19 (1989), 152-157.

BETWEEN °'TRUTH" AND "DIFFERENCE" 39

sense of sexual identity or character". For Smart, as we have already seen, this appeal to Identity is inherently problematic. But what ! want to suggest is that the crucial difference between this ~'psychosexual" test and the "biological" test of gender identity is that the former opens a space for difference and self-deflnition whereas the chromosomal/go- nadallgenital test as a referent forecloses on such a possibility.

At this point in time the legal status of the transsexual, then, is a topic of controversy. There is also a distinct possibility that "transsexual rights" will be recognised by the courts at some stage in the future. And as such it seems to me that it is this appreciation (of the fact that whether such rights will be grounded on biological or gendered referents is problematic and open to contest) that strategies should be geared around. Here the focus of reformist attention might rest on the tactical advisability of the endorsement of transsexualism as a new "essentialist" category, weighing up the cost of adopting this "truth" on the one l~and with the subversion of binary logic which transsexualism constitutes on the other, what, after Woolf, we might call the Orlanda factor. Although problematic and dangerous, we must embrace those openings in the legal discourse of binary sex(uality)/gender. The strategy becomes to produce discourse, to engage in the struggle over meaning. Carl we make transsexualism function as evidence of the contingency of gender categories? This would entail an attempt to redefine transsexualism as a positive principle which might begin to dislocate the gendered body from the biological being, and disarticutate the meanings which flow from this conflation of biology and culture. Such an ager~da would seem consonant with Foucault's publication of texts concerning herma- phroditism. ~4 The legal recognition of a "problematic" sex(uality)! gender category might operate as a base from which to generate counter- discourse, and explicate a more "phased" normative view of gender differences.

It is useful to remember that transsexualism is an invented category. The term was first used as recently as 1954. I~5 Indeed, it may be a

114 F. Bartowski, °'Epistemic Drift In Foucault", in Diamond and Quinby, supra n.60, for example, sees these texts ~s "Foucault working in a place of resistance", at 51.

115 H. Benjamin, "Transsexualism and transvestism as psychosomatic and somato-psychic syndromes", American Jaurnal afPsychotherapy 8 (1954), 219, cited in D. Meyers, The Human Body and use Law (Edinburgh: Edinburgh University Press, 1990), 219. There are earlier references to

40 RALPH SANDLAND

fruitful task which scrutinises the genesis of transsexualism as a medical "syndrome". Might we not discover behind the medico-positivist ap- propriation and (re)definition of this particular "deviation" an altogether more fragmented range of sex(ualities)/gender identities which might more dangerously oppose the common sense linkages between sex, gender and sexuality? The present medically produced understanding of transsexualism presupposes the male/female distinction - - it is this categorisation which is transgressed (but not transcended) - - and hence transsexualism supports as much as it challenges binarism. But if it is appreciated that transsexualism was initially defined by reference to the already existing categories of male/female, then there is room to think that perhaps we have been too trusting of the medical profession (again) in accepting this definition. Certainly, Meyers 116 tells us that there are more or less "severe" cases of transsexualism and that so-called conver- sion surgery is "administered [only] in severe cases and then only after other less dramatic measures, including psychiatric and hormonal treat- ment of the patient, have failed." 117 And this recognition of shades of transsexualism implicitly concedes that the category as such is too overdeterminate of those individuals who are so categorised. I acknowledge that to argue that this medically constructed category of deviance should now also be concretised in legal discourse is a problematic claim, but this is an empirical rather than theoretical question which depends not so much on the genesis of the category as on its present meanings and subversive potential. It is possible to say with some certainty that liberation precisely does not await "further scientific research" as one legal commentator has recently argued. 118 B u t - - and this is the crux of my a r g u m e n t - the point at which law is prepared to accept a gender category not based on biological referents is the point at which a deconstructivist and a reformist agenda conflate.

The final case I want to consider is R. v. Brown and others. Here a group of men had engaged in consensual "sadomasochistic" 119 acts in

transsexualism, but not as a medical syndrome, and the term was not used. 116 Ibid. 117 Ibid., at 219-220. 118 A. Mowbray, "Transsexuals and human rights", Journal of Forensic

Psychiatry 3/3 (1992), 531-535, at 535. 119 The inverted commas speak of my recognition of the problematic and

open-ended nature of this term.

BETWEEN "TRUTH" AND "DIFFERENCE" 4 i

which they variously inflicted and suffered pain in the pursuance of li- bidinal pleasure. After several years the activities of the group came to the attention of the police and the men involved were charged and con - victed of various species of assault. 120 Several of the participants appealed against conviction and at length the case came before the House of Lords. The substantive issue of law before the cottrt was the proper construction of the offence of assault. The appellants argued that the presence of consent in the "victim" 121 precluded the commission of an offence. The majority of the House held that consent could only oper - ate as a defence to charges laid under the relevant sections of the 1861 Act, and then only when the circumstances in question "fall within one of the well-known exceptions," 122 of boxing, the chastisement of chil- dren, and so on. Violence inflicted in the course of sadomasochistic encounters - - even where the "victim" consented to the "assault" - - was not such an exception. Lord Templeman held that "sex is no excuse for violence," i23 and that "I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty. "124 Lord Lowry distinguished the instan~ circumstances from boxing and other violent and dangerous contact sports on the grounds that sadomasochistic encounters "can scarcely be regaa'ded as a "mar~ly diversion."' 125 Rather, this was a "diversion" which attracted custodial sen- tences of between three and eighteen months for the unfortunate participants.

The opinions handed down in the House of Lords provide ripe pickings for deconstruction. The analyses of the law of assault are shot through with a vilification of homosexuality which wil~ fortify discrimination elsewhere in legal decision-making. !26 But I am not interested

120 Ss.20 and 47, Offences Against the Person Act 1861. 121 It is instructive that Lord Templeman, giving the main opinion for the

majority in favour of upholding the convictions, felt the need to surround his use of this word with speech marks, in an implicit recognition that the law must construct a victim in order to secure a co~.viction. (Lord Jauncey used the term "receiver".)

122 [1993] 2 All E.R. 75, at 90,per Lord Jauncey. 123 [1993] 2 All E.R. 75, at 84. 124 [1993] 2 ALL E.R. 75, at 83. 125 [1993] 2ALL E.R. 75, at !00. 126 For example in Re D (An Infant) (Adoption: Parental Consent) [1977] A.C.

617, a case in which the need to obtain the consent of a gay birth father to

42 RALPH SANDLAND

here in undertaking a full exegesis of the normative assumptions which are to be found in Brown. Rather, I am interested to consider the implications of the case for the formulation of oppositional reformist strategies. That people should suffer incarceration as a result of their involvement in consensual sexual activities represents a particularly graphic example of the deployment of sexuality as a form of social control. Foucault of course argued that "sexuality can in no circumstances be the object of punishment." 127 Brown would seem to be an obvious site from which to articulate a desexualization-through-reform campaign.

Yet I have doubts about the efficacy of any strategy conceived along such lines. These doubts are both theoretical and empirical. Theore- tically, I have argued above that poststructuralism points to the fallacy of radical libertarian arguments which espouse a total suspension of normative judgements on the propriety of sexual activity of any kind. We have to resist the liberal impulse with its positing of the unity and autonomy of the subject, and its disregard for the oppressive potential of sexuality as a mode of categorisation, censure and disqualification of the actor-through-the-act. Rather, our starting point must be "a decisive move away from the morality of "acts" ... in the direction of a new relational perspective which takes into account context and meaning. ''128 Instead of asserting the right of the actor to engage freely in all sexual acts, the question then becomes the meaning-in-context of the act, both in the Way that it goes to constitute the actor, and in its "transferability" into other sexual configurations. Posed in this way, the (metatheoreti- cal) advocacy of sadomasochism - - of a right to be sado-masochistic - - becomes problematic.

The Brown case in fact presents a particularly acute problem. The judgements are constructed along three interpenetrative levels or contin - uums: (1) violence-consent; (2) sadomasochism-"normal" sexual activities; (3) gay-straight. Liberal appeals against the decision in this case en-

127 128

the adoption of his son was dispensed with on the grounds of hishomo- sexuality, Lord Simon, noting the criminal regulation of male homosexuality by the Sexual Offences Act 1967, pointed out that "the law does not regard the father's way of life with neutrality" ([1977] A.C. 617, at 637). The Brown case, together with s.28 of the Local Government Act 1988, provides a fresh supply of ammunition of the judiciary, particularly, I would suspect, in the area of family law. M. Foucault in Kritzman, supra n.24, at 200. Weeks, s~ra n. 19, at 81.


gage only with the first and third of these levels. Having, as we have seen above, collapsed the second level through a refusal to articulate sexual norms, the issues in Brown are simply that liberalisn-i does not permit discrimination on matters of personal taste or preference, and that violence is nullified by the consent of the recipient. The social meaning of sadomasochism is reduced to an aspect of the discrimination against homosexuality by law. 129 However, the adoption of a relational approach does not offer easy solutions to this problem. Weeks suggests that it is necessary to ask: "Does sado-masochism involve a submersion in dangerous fantasies of violence, or is it no more than a harmless play- ing out of eroticized power relations?" 130 As a matter of theory, this is of course a non-question, presuming an essential unity to the meaning o£ sadomasochism, both conceptually and as a form of social relation. The question then becomes an empirical one. Sadomasochism intersects various sex(uality)/gender identities, but in differing ways with different meanings. We can expect, therefore, that the subversive potential o f sadomasochism will vary according to context. I think that the strategically useful distinction that might be made TM if we ~tre to evaluate this potential in any given situation is that between transgressive sex(uality)/ gender identities which juxtapose, invert or reverse the "normal" social relationships which inhere in the binary categorisation, but which do not fundamentally challenge their logic; and transcenda~nt identities which carry the potential to usurp or destabilize these categories. Reformist strategies should focus on instances of the latter, but at the same time be sensitive to the inability of law to make such a distinction, or to "think" in this way.

Focused so, the problem as I see it is this. On the one hand there is perhaps an argument to be made out that the situation in Brown is one of transcendence. Judith Butler has argued that sex roles utilising the

129 As such, the liberal reading of the issues in this case are sharply at variance with the text of the judgements, wherein the main concern is with the sadomasochistic nature of the acts rather than the homosexual identity of the actors. This is not to suggest that the text is not properly open to interrogation for its homophobic leanings, but merely that., as with a radical feminist reading of R. v. R., the surface o1[ the judgements is subordinated in favour o.~ an emphasis on their "real, hidden" meanings by~ in this case, a libertarian reading.

130 Weeks, s1¢iora n.19, at 86. 131 And this is not to suggest a simple either/or choice, but merely a useful

heuristic model.

44 RALPH SANDLAND

dominance/submission dynamic outside of the heterosexual convention cannot be understood merely as variations on the heterosexual theme: "The replication of heterosexual constructs in the non-heterosexual frames brings into relief the utterly constructed status of the so-called heterosexual origin." 132 Looked at in this way, Brown, like Cossey, carries the potential to problematicize the binary sex(uality)/gender distinction - - to say nothing of what it does to the law's beneficent construction of the (hetero)sexual male. And this in turn would seem to suggest that Brown, like Cossey, presents itself as a target and a base for strategies aimed at &construction through reform.

Yet on the other hand, there are reasons to query this conclusion. First, the transferability of sadomasochism is not good. Whilst sadomasochism might be oppositional and "radically transgressive" 133 in the context of gay sexuality, the same cannot be said in the heterosexual context. Here sadomasochism functions as gender relations writ large; the meaning of sadomasochism is very different, and not at all transgressive, much less transcendant. Second, there is the problem of the abstractness and unity of law. Law cannot operate at a level of sophistication which detects and categorises instances of transcendence on the one hand and instances of the oppressive deployment of power relations on the other. Even if the task were as simple as sorting out homosexual from hetero - sexual sadomasochistic encounters - - which it is not - - it would be beyond the capabilities of law, even if "Law" was prepared to undertake such a task. Law presents an all-or-nothing choice. "Freedom" for one group could only be achieved at the expense of "oppression" for other groups. We would need to try and measure the extent to which "gay sadomasochism" feeds into other concerns - - surrounding pornography, violent sexual practices and oppressive gender identities - - before advo- cating this "freedom".

Thirdly, Brown as a base frames any opposition to the sexualization of the participants in such a way that the equation of homosexuality with sadomasochism is always already given. To insist on, or at least accommodate, this l i n k - as a demand for rights would have to do - - risks a foreclosure rather than a freeing up of possible sex(uality)/gender identities. If we are prepared in the short term to campaign around "gay

132 J. Butler, Gender Trouble: Feminism and the &~bversion of Identity (London: Routledge, 1990), at 31.

133 Weeks, supra n.19, at 85.


rights" at the level of claims to identity, l~ I have argued in this paper that this can only be in situations where the notion of Identity, can be problematicized and pluralized. There is a danger that Brown itself pre- vents this from being achieved. On the contrary, it might well be that the equation of homosexuality with sadomasochism will reflect un- favourably on the former and provide a focus for homophobic senti- ments. In this sense, Brown forms a poor basis for a reformist strategy. The fourth point, or the same point put differently, is that I am not sure how, if desexualization entails the rejection of binary modes of understanding and sex(uality)/gender roles, sadomasochism is anything other than an "arbitrary stylization of life". It is for these reasons that the usefulness of Brown as the basis for a reformist strategy must be problematic. This does not mean that it is necessary to be "against" sadomasochism. It simply means that, at the present point in time, this particular configuration of issues does not have the capacity, when raised in. the legal arena, to "disengage from and surmount" the contemporary function of sexuality.

In each instance, the strategy to be adopted would not be "read off" a pre-given agenda but measured against the forces historically constitutive of the present situation and the relative gains and losses consequent on the adoption of a given position. This question must be mediated through two others. The first, recognising that law will take our cau- tious claim and essentialize it, is concerned to identify those claims which, if so essentialized, have the effect of making law's construction of gender problematic. I have suggested, as an example, that transsexualism might have the capacity to positively challenge the binary division of gender by law, so that we might decide that its recognition by law as an "essentialist" category is, on balance, worthwhile for the space which it creates for counter-discourse and the opportunities it represents to multiply the available range of gender identities, to make law less prescrip- tire. The second question recognises that law as a discursive arena feeds into other arenas of struggle, so that, again for example, to campaign for desexualization around the Brown case might be considered too dangerous, feeding the fires of sexual prejudice and providing an opening for those "old conservatives" who wish to retain the binary division which

134 Although clearly problematic, I would still hold that these campaigns have been fruitful in achieving reforms with real effects. See for example S. Jeffery-Poulter, Peers, Queers, and Commons: The Struz, gle for Gay Law Re- ar,m from I950 to the Present (London: Routledge, 1991).

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sadomasochism writes large. I emphasise that ! do not offer these thoughts as "strategies" in themselves, but simply as examples of the sorts of question which need to be asked. My concern has been to show the potential for formulation of strategies around law reform, and not to specify what those strategies should necessarily be. I have shown that law's first instinct is to attempt to submerge questions of sexual politics behind "technicalities" by the use of a methodology which actively and constantly (re)creates the reality/truth of any given situation in a way which neutralises it, thus rendering it amenable to purportedly objective, neutral investigation and adjudication. But we know that law does not live up to this claim. In particular, sexuality and gendered "deviance" delimit the success of this strategy, dislocating legal method from judicial pronouncement. Within the context of legal discourse, because of its concrecity in contrast to other disciplines, the issue of sex(uality)/gender can be challenged, possibly redefined. When law talks sex, so can we. 135 Our strategies should be geared towards deciding when this discourse is worth entering into. In the final analysis, a poststructuralist reading of Truth does not require us to forsake law but de-reify it and cultivate the irreverence that will deny the dichotomy of truth/difference, and the awareness that tells us when to engage with and when to disengage from the "economy of truth".

5. Concluding Thoughts

At the start of this paper I specified that my concern was to interrogate Smart's poststructuralism for its reformist potential. It might ap- pear that I have moved some way beyond this. But that would be to misread my argument, which is that poststructuralism can inform feminist strategies. My objective has been to break the consensus which seemingly exists between advocates of this approach and its opponents, that in political (reformist) terms it is use-less: a consensus for which poststructuralists are largely responsible and which stems out of a mis- understanding of the implications of critique of essentialism. This in

135 Law is vulnerable amongst the range of modern disciplines precisely because it functions with a repressive (visible) model of power when normative (invisible) power falters. My argument is that when law talks sex, rather than talking law, it has crossed this threshold from the normative (invisible) to the repressive (visible) and it is in its visibility that law is vulnerable.


turn results from the tack of a place for dialogue in the face of the relational understanding of the workings of power. This type of poststructuralism evacuates itself of political-strategic worth, emptying relationships of anything other than dominance and submission. But, once the grid of reference is triangulated and the potential for resistance is added to our contemplations, poststructuralism becomes "true to itself', at the moment that it becomes sceptical of scepticism. It is at this point also that its reformist potential becomes apparent.

I have attempted to show (1) that "desexualization" as it has hitherto been deployed would seem to suggest an on-going strategy of resistance- through-silence, through a radical rejection of Identity; and (2) that this understanding represents a premature closure of the options that desex - ualizarion offers. In particular, I have argued that the dichotomy which seems to have been constructed between deconstruction/desexualization and law reform is unhelpful because sometimes it may be the case that law's (binary) construction of identity can be subverted through "reformist" strategies couched (ostensibly) in terms of rights. But my main argument is that poststructuralism does not suggest one strategy but an empirical approach which recognises the danger and contingency of our arguments and alliances. We must ask what can be done today to weaken the regulation of individuals through their sex(uality)/gender. Finally, I should emphasise one further point. Smart is undoubtedly correct to be concerned about the fetishization of law. But I do not argue that struggles must be played out solely or even principally in the legal arena. Rather, law is but one site where hegemony, or in her own terms "phallogocentric discourse," 136 must be challenged. My point is simply that, having recognised the power of law, Smart is correct to argue that challenges to law must "start from somewhere else fundamentally". But deconstruction which does not engage with law leaves law functioning to undermine gains made elsewhere. Unless these challenges are at some stage shifted into the legal arena the power of law will remain fundamentally unchallenged.

136 Smart, suDra n.9, at 86.

Documents

Between ?truth? and ?difference?: Poststructuralism, law and the power of feminism