Vol. 13 No. 7 (July 2003)
LEFT LEGALISM/LEFT CRITIQUE, by Wendy Brown and Janet Halley (eds.). Durham, N.C.: Duke University Press, 2002. 440 pp. $22.95 paperback. ISBN 0822329689.
Reviewed by Alice Hearst, Department of Government, Smith College, Northampton, MA. Email: firstname.lastname@example.org.
In this volume, Wendy Brown, a political science professor at Berkeley, and Janet Halley, a law professor at Harvard, have gathered a set of essays advancing a left critique of liberal legalism. They argue that the left has become too cozy with the promises of liberal legalism and its associated discourse of human rights. In its embrace of legal rights as the primary site for effecting social change, the left seems to have forgotten that it is “the liberal political order…that leftists conventionally challenge as inadequate to the production of substantive freedom and equality” (p.5). Left critiques, they argue, should continually examine liberalism’s claim to neutrality and the manner in which that legal and political order both produces and sustains social and economic hierarchies.
Instead, they assert, the left has been seduced into an alliance with law that undercuts the critique. The law fossilizes reform efforts, reducing complicated political, economic and social issues into legal ones that in turn produce a unique, narrow and predictable form of political action. Perhaps most importantly, the editors note, this reliance on law imbricates the left with the state in ways that thwart truly transformative change and cedes authority to the state to define and produce “the normal.”
Nine of the eleven essays included here appeared in earlier publications, some as long as five to seven years ago. Many generated commentary at the time of their original publication, so that the critique has a familiar ring, but collecting them in one place gives the reader a good sense of how these various critiques tie together. Each of the essays expresses caution—and in some cases, cynicism—about the left’s engagement with the law. Some track the ways in which the ends of left projects have been subverted by a too facile reliance upon the possibilities of law for achieving those ends; some tell tales of the struggle to get critiques heard at all. Unfortunately, while each contains a concise and undeniable critique of the law, there is little discussion about democratic responses. The editors forcefully argue that the left must “recover radically democratic political aims from legalism’s grip in order to cultivate collective political and cultural deliberation about governing values and practices” (p.20). Given that assertion, it is somewhat odd that none of the essays gives much consideration to discussing how democratic practices themselves can be reshaped to avoid the pitfalls of rights discourse and liberal legalism.
Duncan Kennedy’s essay critiquing rights—the fifth essay in the book—would perhaps have made sense as the first, given its narrative about losing faith in the rights project of liberal legalism. The essay sets the stage for the deep-seated concerns that each of the authors in the volume express about rights. Kennedy critiques three incarnations of rights: first, he argues that liberal constitutionalists embraced a panoply of rights to generate liberal outcomes without sufficient thought to how their articulation would simply generate a counter-reaction of equal force. Second, he argues that the attempts of “fancy theorists” to ground rights in transcendent philosophical doctrines that universalize the claims and interests of oppressed groups simply fail to respond to the particularity of claims, while identity-based rights, the third category he critiques, make the opposite error by being too focused on individual experiences of oppression. All of these formulations, Kennedy argues, efface more radical efforts to change the economic, political and social structure of liberal societies. In the end, he asserts, rights simply resolve into value preferences.
These concerns run throughout the other essays in the volume. Richard Ford’s critique of identity politics advances several cogent criticisms of liberal multiculturalism, and appears for the first time in this volume. While Ford is sympathetic to the concerns of historically marginalized groups, he is wary of the ways in which the law is enlisted to protect and place boundaries around cultural groups, warning that the politics of difference can become as obsessive and myopic in its own way as the politics of assimilation that it was intended to resist. Ford worries that these politics will preserve difference at the price of securing broader racial and social justice. Ford’s analysis of the BAKKE case as having institutionalized a notion of racial difference is interesting in light of the Supreme Court’s recent decisions on the affirmative action programs at the University of Michigan, where echoes of his concerns were apparent in the commentary that followed the decision. Ford is acutely attuned to the consequences of enshrining certain practices as indicative of “essential” cultural attributes and worries about according legal authority to particular members of groups to define what the culture means for the whole group. Where advocates of cultural rights have been concerned to remedy silence and exclusion, he notes, they have not been sufficiently attentive to the dangers of “speaking for others, conscription, and compelled performance” (p.53).
Mark Kelman and Gillian Lester inquire into how liberal multiculturalism’s response to discrimination against the learning disabled has fallen into a trap that justifies the extension of resources in order to allow the disabled to live up to their productive capacities on a par with those not so handicapped. Kelman and Lester introduce the more complicated notion that not all individuals have, or should have, the same productive capacity; society should instead protect individuals with different productive capacities. The standard multiculturalist approach puts power into the hands of a dominant social group that in turn defines the standard of normal productive capacity, instead of recognizing real difference.
Several of the essays are focused on how the liberal legal regime obsessively regulates sexuality and intimate life. Lauren Berlant, in a particularly notable essay, discusses the politics of sentimentality that has emerged over the last twenty years which equates a politics built around the image of the traumatized victim with the achievement of justice. Arising in response to the view that citizenship imposed a national identity upon an abstract subject endowed with specific rights, this alternative vision imagines a nation of suffering individuals whose exclusion from the American Dream belies the state’s claim to legitimacy (pp.107-108). Berlant explores these concerns through an analysis of the laws regulating intimacy, pointing out that when the law is constantly invoked in service of a disempowered victim, the need to understand resistance and empowerment within systems of victimization is elided. Berlant does not suggest that identity politics are all “victim politics.” Politicizing pain, she notes, has exposed the idea of the abstract citizen as a liberal fantasy, but she warns against easy acceptance of the idea that “the traumatized self is the true self [because it suggests that] a particular facet of subjective experience is where the truth of history lies…[and that] the clarity of pain marks a political map for achieving the good life” (p.127).
Janet Halley’s new piece explores the issue of sexual harassment in the wake of ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC., in which the Supreme Court recognized that same-sex harassment could amount to sex discrimination when motivated by erotic attraction. Tracing the Court’s ruling to the success of sexual subordination feminism in shaping the law around gender discrimination, Halley worries that this approach will encourage a torrent of claims generated by homophobia and homosexual panic; she argues that the success of this brand of feminism has so occupied the field of sex discrimination law that it has become repressive in itself, transforming sexual harassment law into sexuality harassment. This liberal framing of sex discrimination law undercuts efforts to see sexuality as fluid and contextual, and she suggests that a better approach would entail the revival of socialist feminism which would be less inclined to view all eroticism at work as inevitably subordinating. She asserts that feminism should not be the “sole authoritative source for left understandings of queer normativity,” and that left thinkers have worked too hard to try to achieve a convergence of aims among feminists, queer theorists and others.
Katherine Franke explores how sexuality is too easily transformed in liberal legal thought into sexism. Her essay explores how sexual practices are labeled and treated as sexism in the law. That facile labeling generates a fixed set of responses that are often inattentive to the real issues of power involved in a particular crime and thus restrict the range of responses. Labeling the crimes against Abner Louima as sex crimes, for example, made it easy for the system itself to ignore the fact that what happened to Louima was an act of humiliation, designed specifically to abase him as a Black man. Thus, the justice claims raised by the case were neatly avoided. Drucilla Cornell worries about the ways in which the debate over abortion is subsumed in a debate over the legal limits of privacy. Cornell suggests that a more fruitful framing of the issue would be attentive to how the right to abortion furthers women’s individuation. Understanding the right to abortion as an aspect of bodily integrity that is “central to a woman’s ability to project herself as a whole over time” would disrupt an argument currently immobilized through the polarization of the interests of the woman in securing a choice, on the one hand, and the interest of the fetus on the other. Judith Butler and Mark Warner raise concerns about gays and lesbians seeking marriage rights. Butler points out that marriage invites gays and lesbians into a realm of sexuality defined by the state, undercutting further reaching efforts to reshape the normative constitution of the sexual field, while Warner follows up on these insights with the observation that gay marriage allows the state and dominant cultural groups to define “good” and “bad” gays.
Each of these essays contains a cogent and convincing warning about the ways in which the left project has been co-opted by the rights discourse of liberal legalism. The editors’ introductory essay points out that critique is often a thankless task; they note that they have “endured” a number of conversations in which their work has been attacked by those who see critique as counterproductive and playing into the hands of the right, especially in the absence of a programmatic alternative. While such a plan for action cannot be expected, nor would it be desirable, it would have been helpful, in revising these essays for the volume, if the authors had spoken even briefly about the forms of radical democratic action that each explicitly or implicitly appears to champion. Rights have long been recognized as being both liberating and confining. Indeed, left theorists concerned with instituting a broader conversation about justice, which is, after all, the aim of this collection, must be preeminently attentive to the deeper question that might be framed as follows: What it is about democratic politics in a liberal state that so easily inclines it to a reliance on rights, and how can critical theory move us toward a new vision of politics itself?
GRATZ v. BOLLINGER, No. 02-516 (2003).
GRUTTER v. BOLLINGER, No. 02-241 (2003).
ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC., 523 US 75 (1998).
REGENTS OF THE UNIV. OF CAL. v. BAKKE, 438 US 265 (1978).
Copyright 2003 by the author, Alice Hearst.