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Psychoanalytic theory in the context of a transformative politics Glynos, Leonidas Jason 1994

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PSYCHOANALYTIC THEORY iN THE CONTEXT OF A TRANSFORMATIVE POLITICS by  Leonidas Jason Glynos B.A., The University of Cambridge, 1989 LL.B., The University of British Columbia, 1993  A THESIS SUBMI1TED IN PARTIAL FULFILLMENT OF  THE REQUIREMENTS FOR THE DEGREE OF MASTERS OF LAWS in THE FACULTY OF GRADUATE STUDIES Faculty of Law  We accept this thesis as conforming to thquied standard  THE UNIVERSITY OF BRiTISH COLUMBIA September 1994 © 1994 Leonidas Jason Glynos  In presenting this thesis in partial fulfillment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted the head by of department my or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.  (Signature  Department of  Lkvj  The University of British Columbia Vancouver, Canada Date  II  Abstract  In contemplating social change in the context of policy development and legal decision-making we are necessarily led to consider what the limits are to such change. And it is not surprising to find this issue gaining widespread currency in contemporary legal and political debates, especially when viewed against the background of the growing number of new social movements:  feminism, critical race, anti-poverty,  environmentalism, and so on. Our thesis suggests that a psychoanalytic approach can successfully contribute to this critical discussion. In a first approach, our thesis develops some basic psychoanalytic categories, such as ‘fantasy’ and ‘identification,’ to show how Lacan’s view of the subject as a lack yields some surprisingly fruitful insights. What we have in mind here is his view that the subject is not a fully-formed individual with a clear and undisputed will. Rather, I.acan suggests that it is the very absence of a concrete will which defmes the human subject. These insights are further developed in relation to the standard theoretical categories of ‘power relations’ and ‘structural constraint’. We thus demonstrate, for example, how psychoanalytic ideas can further the debates over ideological critique and ‘falseconsciousness’. Now, in making our analysis relevant to contemporary political and legal scholarship, we have applied our theoretical framework to the discussion of the rights  discourse. We find that many of the impasses centering on the public-private issue; on the formal versus substantive opposition; on the question of whether rights reproduce the  111  capitalist mode of production; can be usefully portrayed in terms of the assumptions that underlie legal positivism and legal postmodernism; and we show how Lacan can provide us with a much-needed alternative account of the rights phenomenon. In this new formulation, rights users are tied directly to the subject-as-lack. And, contrary to a reactionary interpretation of this new formulation which might point to an apparent pessimism and apathy, we find that our narrative opens up the way to a highly productive and passionate ethics. We immediately see the relevance of such contemplations to political and legal strategists. We argue that Justice is impossible in the strictest sense of the term, and that our proposed ethics provides us with a means to cope with this knowledge. We suggest adopting a paradoxical stance in which Justice is conceivable, and in this sense possible, on the basis of a constitutive impossibility. Our thesis demonstrates how the work of Slavoj Zizek, Ernesto Laclau, Chantal Mouffe, Joan Copjec, and Renata Saleci, provide us with a panoply of remarkably sophisticated (Lacanian) theoretical tools for the purposes of presenting this paradoxical relationship.  iv  Table of Contents  Abstract Table of Contents Acknowledgments Abbreviations  ii iv viii vi  CHAPTER ONE: Setting the Stage for a Lacanian Displacement Introduction A Chapter Itinerary A Thesis Itinerary What is Psychoanalysis: Toward a Science of the Real Law and Psychoanalysis in Context: A Brief Sketch Toward a Lacanian Psychoanalytic Jurisprudence and an Ethics of Transformation Problematizing the Politics of Transformation: Toward an Ethical Discourse of the Analyst A Survey of Psychoanalytic Concepts Lacan’ s Mathemes An Ethics of the Real in the Context of Ideological Interpellation TheSubject Ethics Revisited: Traversing the Fantasy Relevance to the Critique of Ideology Specifying the Lacanian Contribution to Legal Theory in the Context of a Transformative Politics The Subject of Ethics The Function of Law: Justice or Appeasement? On Authority On the MaterialistlPoststructuralist Opposition On Superegoic Repression and the Desire of Rights Lacan as a Poststructuralist: Strategies, Power Relations, and Structural Constraint Power Relations Structural Constraint Conclusion Notes to Chapter One  1 1 6 7 9 13  CHAPTER TWO: Doing Theory The Logic of the Signifier: Toward a Science of Discourse Analysis Sample Readings Gay Rights and Gay Strategies Undecidability and Identification: Politicizing the Legal Categories of Homosexuality and Pregnancy Emptying the ‘Family’ Postmodernism as the Limit of Modernism: Variations on a Theme On the Onto-epistemological Issue Fixity versus Nihilism: Anatomy of a false dichotomy  85 85 98 98  .  19 20 25 25 31 33 39 42 46 47 55 57 59 64 67 69 70 74 76  102 103 107 107 115  V  On Power, Resistance, and Structural Constraint On the (im)possibiity of Justice On Discourse, Ideology, and False-Consciousness Notes to Chapter Two  .  CHAPTER THREE: The Law and Politics of Rights and Identities Rights Discourse: The Traditional Debate The Critique of Rights Does Public State Neutrality Mean Invisibility of Private Inequalities’ Rethinking the public/private and politicallsocial dichotomies Formal versus Contextual Approaches to Resolving Equality Issues Taking a Closer L.ook Do Rights Reproduce the Form of the Capitalist Mode of 7 Production Individualism: Alienating or Not 7 Abstract Indeterminacy: Beyond Good and Evil Reification and Objectivity Conclusion Rights and the Logic of Desire Identity Politics The Process of Identification Identity and Power: Structural Constraints Revisited Identifications in Legal Discourse On Representing Interests Notes to Chapter Three  121 127 132 135 137 137 137 139 141  145 146 149 151 154 157 159 160 172 172 177 180 184 187  CHAPTER FOUR: The Real as an Internal Moment of the Political The Political: From Communitarianism to Liberalism to Radical democracy Three Lacanian Orders: Im Sym Re ...And Their Relation to the Political Utilitarianism Specifying the Radical Democratic Anti-Utopian Utopia Role for the Progressive Legal Scholar Problematizing Strategy and Targeting a Radical Democratic Artegy Notes to Chapter Four  194 195 198 204 214 224  Concluding Remarks Selected Bibliography Appendix: Lacan’s Graph of Desire Notes to Appendix  249 253 261 267  --  --  194  236 244  vi  Abbreviations  BE  Laclau, Ernesto, ‘Beyond Emancipation’ (1992) 23(3) Development and Change 121.  BNL  Laclau, Ernesto, ‘Building a New Left: An Interview with E. Laclau’ (1988) 1 Strategies: J. Theory, Culture, and Politics 10.  CIP  Laclau, Ernesto, ‘Community and Its Paradoxes’ in Miami Theory Collective, ed,, Community at Loose Ends (Minneapolis: University of Minnesota Press, 1991) at 83.  E  Lacan, Jacques, Ecrits: A Selection, Jacques-Alain Miller, ed., Alan Sheridan, trans. (New York: W. W. Norton, 1977).  EP  Zizek, Slavoj, For they Know Not What They Do: Political Factor (New Yoric Verso, 1991).  ES  Zizek, Slavoj, Enjoy Your Symptom! (New York: Routledge, 1992).  FC  Lacan, Jacques, The Four Fundamental Concepts of Psycho-Analysis, Jacques-Alain Miller, ed., Alan Sheridan, trans. (New York: W. W. Norton, 1977).  HSS  I.aclau, Ernesto, and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (L.ondon: Verso, 1985)  IS  Laclau, Ernesto, ‘The Impossibility of Society’ (1991) 15(1/3) Canadian Journal of Political and Social Theory 24.  LA  Zizek, Slavoj, Looking Awry: An Introduction to Jacques Lacan through Popular Culture (Cambridge: MIT Press, 1991).  LTA  Laclau, Ernesto, ‘Letter to Aletta’ in his New Reflections on the Revolution ofOur Time (London: Verso, 1990) at 159.  MPI  ‘Introduction’ in Laclau, Ernesto, ed., The Making of Political Identities (London: Verso, 1994) at 1; and Laclau, Ernesto, and Lilian Zac, ‘Minding the Gap: The Subject of Politics’, in Laclau, Ernesto, ed., The Making ofPolitical Identities (London: Verso, 1994) at 11.  NR  L.aclau, Ernesto, ‘New Reflections on the Revolution of Our Time’ in his New Reflections on the Revolution of Our Time (London: Verso, 1990) at 3.  Enjoyment as a  vu  PLM  Laclau, Ernesto, ‘Politics and the Limits of Modernity’ in Ross, Andrew (for the Social Text Collective), ed., Universal Abandon? The Politics of Postmodernism (Minneapolis: University of Minnesota Press, 1988) at 63.  PM  Laclau, Frnesto, ‘Psychoanalysis and Marxism’ in his New Reflections on the Revolution ofOur Time (London: Verse, 1990) at 93.  PR  Laclau, Frnesto, ‘Power and Representation’ in Poster, Mark, ed., Politics, Theory, and Contemporary Culture (N.Y.: Columbia University Press, 1993) at 277.  PWA  Laclau, Ernesto, and Chantal Mouffe, ‘Post-Marxism Without Apologies’ (1987) 166 New Left Rev. 79.  RP  Mouffe, Chantal, The Return ofthe Political (London: Verso, 1993).  SO  Zizek, Slavoj, The Sublime Object ofIdeology (London: Verso, 1989).  TDS  Laclau, Ernesto, ‘Theory, Democracy, and Socialism: An Interview’ in his New Reflections on the Revolution ofOur Time (London: Verse, 1990) at 197.  TM[  Laclau, Ernesto, ‘Totalitarianism and Moral Indignation’ (1990) 20(3) Diacrtics 88.  rJ  Zizek, Slavoj, Tarrying with the Negative (Duhram: Duke University Press, 1993).  UPI  Laclau, Ernesto, ‘Universalism, Particularism, and the Question of Identity’ (1992) 61 October 83.  WES  Laclau, Ernesto, ‘Why do Empty Signifiers Matter to Politics?’ in Weeks, Jeffrey, ed., The Lesser Evil and the Greater Good: The Theory and Politics ofSocial Diversity (London: Rivers Oram Press, 1994) at 167.  viii  Acknowledgments  But for Professor J. C. Smith (my primary supervisor) this thesis would not have been possible  --  in too many ways to even attempt to list or give justice to. Introducing  me to Jacques Lacan has made him responsible for the single most traumatic encounter that has ever befallen me. In doing so, however, he has also made possible the birth of a new and rewarding world-view. His unwavering faith in my efforts to grapple with the little bit of the real provided a constant source of anxiety  --  but a productive kind of  anxiety whose effect was the generation of new master signifiers and new meanings. Another big ‘but for’ comes in the form of a proper name: Professor Joel C. Bakan (my secondary reader). Only he knows how his introducing me to the work of Ernesto Laclau and Chantal Mouffe has resulted in a profound mutation in my theoretical and academic trajectory. His productively critical and insightful commentary also helped me refine many issues and give focus to the thesis. I also thank Karin Mickelson; mom, dad, and Byron; and Angela; all of whom were a constant source of support and encouragement. Finally, I thank my refrigerator which developed an uncanny knack at producing little tid-bits of edibles when least expected but when most needed.  ix  I love you, but, because inexplicably I love in you something more than you the objet --  petit a  --  I mutilate you.  Jacques Lacan 1  [Mly frank opinion is that [Lacan] was a conscious charlatan, and was simply playing games with the Paris intellectual community to see how much absurdity he could produce and still be taken seriously.  Noam Cbomsky 2  1  CHAPTER ONE: Setting the Stage for a Lacanian Displacement  Introduction  What causes change? What induces us to want change? What is it in others, in ourselves, in discourse, that unsettles us; that triggers our will (to power)? Why do we  desire? Jacques Lacan has a precise answer to these questions: the objet petit a. As our thesis unfolds, we will see this little object develop into a psychoanalytic category of thought of surprising theoretical clout. It will provide us with the necessary ‘missing link’ to tie psychoanalytic concepts such as identification, subjectood, and ethics to contemporary theoretical issues surrounding progressive social change. The relevance to the new social movements and minority critical legal studies, therefore, should be apparent. Indeed, we could say that, though our primary reference materials consist of theoretical texts, the vector of our work points toward the new social movements: feminism, critical race, environmentalism, anti-poverty, peace, etc.  In general terms, we could say that the aim of the new social movements is to effect some meaningful and concrete changes at a grassroots level (to close the income discrepancy gap, to make the world a physically and psychically safer place to live in for  Chapter One: Setting the Stage for a Lacanian Displacement  2  women and sexual and racial minorities, and so on). Now, in an effort to discern whether such contemplations are utopian in the negative sense (ie., naive and impossible) or utopian in the positive sense (ie., tangibly possible), critical scholars have turned to a multiplicity of disciplines for assistance in mapping out possible approaches. Rapidly attaining hegemonic status are conceptual tools drawn from disciplines which have already accepted and assimilated the poststructural and postmodern ethos. Indeed, current critical literature indicates an almost obsessive compulsion on the part of their authors to eschew phrases and ideas that might betray the slightest trace of essentialism or metaphysics.  And, of course, the recent theoretical backlash against Catherine  MacKinnon evidences this tendency. Taking centre stage in this new wave of theoretical rethinking is the notion of ‘social construction’: the idea that objects and identities have no meaningful existence outside of discourse; that there is no ‘prediscursive’ reality; that nothing meaningful exists beyond the language games we engage in. Such a premise, of course, carries profound implications vis-a-vis one’s world view, way of life and, consequently, strategy considerations. Nevertheless, it seems that, in the current struggle among competing philosophical schools of thought, European continental philosophy (especially that of Derrida and Foucault) is steadily marching toward the limelight.  We can see, therefore, why, at least at the level of explicit theory, current legal scholarship is engaged in a more or less concerted effort to bury any remaining vestiges intimating the presence of natural law or legal positivism. Critical legal scholars have deconstructed court judgments to reveal how underlying assumptions constantly subvert rational argumentation and how, ultimately, legal reasoning is circular. The question then becomes what is it that sustains, pins down, legal argument? If reason and logic are not sufficient for grounding legal argument, what is? In an attempt to answer this question, law and society scholars have endeavoured to open up legal theory to virtually all other  Chapter One: Setting the Stage for a L.acanian Displacement  3  social domains. In moving away from notions of legal autonomy and legal relations,  social relations have increasingly become the focus of study. 3  In this view, social  relations comprise a multitude of dimensions of which the legal dimension is only one, and the key to understanding the justificatory process (and thus legitimating power) of the legal discourse comes from an examination of the interrelationship of these dimensions. It is acknowledged that making social relations the analytic unit of legal theory is helpful in bringing about a crucially important shift in perspective. It shows us, for example, that a narrow focus on legal materials is no longer adequate in achieving a comprehensive understanding of the legal decision-making process. Our thesis, however, proposes that, though such a move is necessary, it is not sufficient to the analytic task. Nor does its theoretical framework offer us any insight or guidance with respect to the contentious issue of social transformation, especially from the progressive standpoint. We argue that what is missing from contemporary debates in legal theory is a proper problematization of the process of identification which frames the very social relations that many theorists take as their starting point. However, we are not simply concerned with creating a typology of the various modes of identification that we engage in.  Indeed, investigating the discursive  mechanisms that are responsible for the construction of the multitude of subject positions making up social relations is fast becoming an academic commonplace among legal theorists. Rather, we are more interested in such processes of identification inasmuch as they constitute mechanisms of escape.  But escape from what?  The Lacanian  contribution to theories both of law and of transformation can be seen as providing an answer to this question. We will argue that detailed considerations of the twin concepts of subjecthood and ethics are the crucial elements that are absent from contemporary legal debates.  Chapter One: Setting the Stage for a Lacanian Displacement  4  Our starting point in establishing a theoretical framework is the work of Laclau and Mouffe (HSS) which conceives the political and social field in terms of signifiers and social antagonisms. Their opus will operate as a kind of background common sense upon which a Lacanian approach to legal theory will be developed. It is their theorization of the social antagonism which is responsible for their famous statement that ‘society does not exist’, ie., that society as a fully sutured entity and in complete identity with itself is an illusion of the (Lacanian) imaginary order. Society is always traversed by social antagonisms which surface as antagonistic relations such as those between the capitalist and socialist, industrialist and environmentalist, patriarch and feminist, etc. Now, if we add to these observations pertaining to political theory the fact, as the Realists and Critical Legal Scholars never tire of pointing out, that law constitutes an important site for political and ideological struggles, the relevance of their comments to legal theory should be clear.  The Lacanian contribution to poststructural political theory can perhaps be framed in terms of the subject.  Postmodern and poststructural theorists have properly  interrogated the notion of an essential, unitary, and autonomous subjecthood. However, from Zizek’s perspective, the standard poststructuralist notion of the subject needs to be 4 In psychoanalytic theory the subject represents the revised or, more precisely, emptied. asymptotic limit of the process by which each of the substantive subject positions occupying the empty space is removed one by one. In other words, the psychoanalytic subject is a lack or, alternatively, the split between its substantive content and its empty form.  So, it is in this homologous sense, that we argue that legal theory has not  adequately problematized the subject, and that Lacan, through Zizek, can provide the impetus for remedying this deficiency. 5 The idea is to inquire more precisely into the nature of the subject and to show how its constitutive split (between the subject of  Chapter One: Setting the Stage for a Lacanian Displacement  5  enunciation and the subject of the enunciated) is none other than the Zizekian fetishistic split between (unconscious) real knowledge and (conscious) symbolic belief. In the context of a transformative politics, the question that is at the forefront of such an inquiry is ‘why are deconstructive readings not sufficient?’ le., why is the staging of a category’s discursive overdetermination not often sufficient to diffuse our tendency to cling to an ‘irrational’ essentialism, to treat ‘woman’, for example, as a category with an intrinsic property that justifies physical or mental abuse? Why is it not sufficient to point out the inconsistent, irrational behaviour in order to effect change? Why does mere knowledge (at the level of the signified) of inconsistent behaviour do little to disrupt a certain pattern of behaviour? Indeed, how is it that the notions of ‘irrationality’ and ‘inconsistency’ are attributed to some but not other modes of behaviour?  In engaging with Lacanian psychoanalysis we hope to show how a  prioritization of the signifier over the signified can help us access, and come to terms with, the real of our subjeethood, our internal antagonism, our own extimate blockage, our jouissance. For psychoanalysis deals with that which escapes the signification process: jouissance (enjoyment). Its function is to locate and assume this surplus enjoyment by examining its traces in the discursive medium (repetition, inconsistencies, paradoxes, circularity). We can now answer the question we posed earlier. The mechanisms of imaginary and symbolic identifications constitute means of escape from, or veiling of, the real dehiscence of our subjecthood (or the inconsistency of the symbolic Other). The ethics of a feminine jouissance, therefore, suggests the assumption, rather than repression or eradication, of the fetishistic split with which the subject is marked. As already mentioned, the necessity of a review of the subject stems from the observation that symptomal (ie., deconstructive) readings are not sufficient to effect change; from the perspective of critical legal theory (including the new social movements) we need also to identify with the symptom by recognizing the way we enjoy  Chapter One: Setting the Stage for a Lacanian Displacement  6  the symptom. This corresponds to the final moment in the psychoanalytic ‘traversal of fantasy’, ie., the act with which one can view the symptom as the truth of ourselves, such that a relation is, to use Chantal Mouffe’s terms, transformed from an antagonistic one to an agonistic one.  So, to conclude, the aim of our thesis is to rethink traditional and poststructural theoretical concepts from a Lacanian perspective, and to transcribe them into the domain of a transformative politico-legal theory.  These concepts include ideas such as  subjectivity, identification, ethics, social relations, structure, power, authority, legitimacy, etc. The purpose of such an interrogation will be to examine the potential for a psychoanalytic contribution to current debates in the realm of law. We propose that a  Lacanian perspective offers us the opportunity to rethink some basic theoretical concepts and thus to significantly advance the debate in the area of social change by emphasizing the dimension of the real, ie., the dimension which resides in the interstices of knowledge —  an emphasis which would entail a shift in discourse type from the university to the  analytic. Our thesis will thus constitute a preliminary inquiry into the limits of theory itself (inasmuch as theory connotes the order of description and prediction ) and, 6 specifically, the limits to any kind of strategic-transformative project. The theme underlying our thesis, therefore, urges that legal theory will have much to gain in supplementing the standard (traditional) postmodern poststructural approach with a Lacanian psychoanalytic approach. 7  A Chapter Itinerary  In order to set the stage for a Lacanian critique of current theories of law and political philosophy, this chapter will address several preliminary issues. First, we will offer a thumbnail sketch describing what constitutes psychoanalysis and its object of  Chapter One: Setting the Stage for a Lacanian Displacement  7  study: In what sense can it claim scientific status? How does Lacan’s re-reading of Freud alter our approach to analysis? Second, we will briefly outline the manner in which  the discipline of  psychoanalysis has impinged upon the legal discourse. In effect, we investigate this intersection along two axes: the historical-diachronic axis, and the theoretical-synchronic axis. Third, we will consider, in fairly general terms, in what sense our thesis can be distinguished as a separate and unique locus of intersection: In what sense do we think it offers us a way to advance today’s theoretical debates in law and politics? Fourth, we will undertake a survey of some basic psychoanalytic concepts such as fantasy, subject as lack, etc., for some familiarity with them will be assumed in the remaining part of this chapter and in subsequent chapters. Tn explicating these concepts, we will have recourse, as far as is possible, to simple everyday objects and activities, and popular culture. In this part, we will also draw out some implications for the critique of ideology.  And lastly, we will attempt to delineate more precisely the Lacanian  contribution to legal theory in the context of a transformative politics. In a sense, therefore, this last section could be viewed as a thesis in miniature. We will look, for example, at such issues as authority, power relations, and rights. Its purpose is not so much to be comprehensive as it is to suggest the kind of theoretical displacement we think is long overdue and which our subsequent chapters will try to more fully substantiate.  A Thesis Itinerary  We shall follow our introduction to psychoanalytic theory with a theoretical chapter whose purpose will be to make more explicit its relationship to the laws of the signifier. Chapter two will also explore the relevance of the logic of the signifier to contemporary theoretical debates centering about postmodernism. In chapter three, our  Chapter One: Setting the Stage for a Lacanian Displacement  8  account of the traditional rights debate will suggest that a critique of rights based on the failed materialization of preconceived progressive outcomes is locked into an essentialist mode of thought. We will show how the notion of a split signifier accounts for the remarkable capacity of the rights discourse to transform social relations into political relations of oppression and antagonism. Finally, in chapter four, we examine what kind of progressive politics survives an anti-essentialist critique. We do this by looking at how the three L.acanian orders (imaginary, symbolic, and real) can serve to frame debates within political theory and how such an approach sides favourably with a real ethics of radical democracy.  We will then conclude by examining, more specifically, the  implications for a progressive lawyerly practice.  As a final note, we wish to make explicit what will soon become obvious from our work. We wish to acknowledge our immense theoretical debt to Slavoj Zizek whose insightful exposition of Lacan’s work is without parallel; to Ernesto Laclau for specifying, with the utmost rigour, Lacan’s logic of the signifier; and to Chantal Mouffe for her very clear presentation of the debates in political theory, including her own theoretical contribution by way of the radical democratic project. Of central thematic importance to our thesis is the notion of the subject as a (real) lack and the processes of identification meant to appease this lack; the logic of the signifier which accounts for the emergence of the subject as lack; and an ethics of the real which radical democracy aspires to. In this sense, therefore, we could say that our thesis consists of a series of essay-variations on a Lacanian theme.  Chapter One: Setting the Stage for a Lacanian Displacement  9  What is Psychoanalysis: Toward a Science of the Real  Ever since Freud, psychoanalysis has been concerned with human action which does not accord with conscious or rational motivations.  Slips of tongue, dreams,  obsessive compulsive behaviour, intractable relationships, and uncontrollable addictions were just some of the examples taken as evidence of an agency not normally accessible to the conscious mind: the unconscious. The psychoanalyst was usually called upon to attend to a symptom, ie., a particular kind of behaviour which struck the individual experiencing it as undesirable. The task of analysis, then, consisted in relating the analysand’s symptom to her/his psychic makeup, often by recollecting and examining her/his family history. Thus, the psychoanalytic relationship is born out of a desire to understand and eliminate a symptom experienced by an analysand. And the typical psychoanalytic encounter consists of a free-associational recounting of life-events by the patient himself. The idea, of course, is to map out the idiosyncratic symbolic universe (ie., constellation of signifiers) of that particular person, as the art of psychoanalysis is premised on the fact that every individual is unique. As Jacques-Alain Miller notes: the analytic attitude is just this: never, never suppose you speak the same tongue as your analysand. Never suppose you know what he means when he says anything: that is, the analyst must suspend the common sense of the tongue. And I believe it’s clear that there is no common sense in psychoanalysis. There is only particular, peculiar sense. Besides common sense, both analyst and analysand aim at the most particular sense valid for this subject, and not for any other. You really don’t know what the analysand means when he speaks. But he came to analysis precisely because he himself suspected he didn’t know what he meant when he spoke. And that is why he offered himself up to interpretation. Some people use Lacan to say that the analysand speaks in reference to a subject-supposed-to-know what it all means. As an analyst you know nothing about the particular tongue of your analysand. You know nothing more than this: that what he means is what he enjoys. 8  Chapter One: Setting the Stage for a L.acanian Displacement  10  The stake of psychoanalytic social theory, of course, is that the strictly unique character (and thus symbolic universe) of every individual applies mutatis mutandis at the level of the socio-cultural. And this shift is made plausible by acknowledging the strictly social character of the individual. In other words, the subject is socialized into an Individual through the processes of imaginary and symbolic identifications, ie., the introjection of  common, and thus social, signifiers. Notice that what is common is not the signified (ie., the meaning), but the signfier. Now, the distinction elaborated by Saussure between signifier and signified brings us to the question of science in the context of psychoanalysis. In his effort to legitimate psychoanalysis as a science, Freud attempted to trace human behaviour back to a biological-physiological causal nexus, whether of a neurological or libidinal sort. However, until the very end of his life, he felt unsatisfied with these attempts. And it is here that Lacan makes his most important contribution. He devoted much time to re reading Freud’s texts and, in doing so, found in them an implicit yet heavy reliance on the linguistic medium. (After all, the psychoanalytic cure is accomplished by words, not surgical instruments. ) Lacan was able to find a resonating coherence in Freud’s work 9 when read through the now famous axiom ‘the unconscious is structured like a language’. This refers not only to the linguistic transformations of metaphor and metonymy (thus giving a more explicitly verbal twist to Freud’s concepts of condensation and displacement) but also to the privileging of the signifier over the signified, and an acknowledgment of the significance of culture in a person’s psychic make-up  --  a series  of significations condensed into Lacan’s concept of the ‘big Other’ ° or ‘symbolic order’. 1 Thus, the well-known psychoanalytic terminology encompassing Freud’s castration anxiety, Oedipus complex, transference, etc., came to be understood primarily in terms of signifiers, not biology. The influx of Saussurian and Levi-Straussian cultural semiotics, therefore, made it possible for Lacan to re-entertain the notion of psychoanalysis as a linguistic, rather than  Chapter One: Setting the Stage for a L.acanian Displacement  11  biological, science. However, far from reducing everything to language, as critics often charge L.acan, psychoanalysis retains its most distinctive feature whose origins stem from the Freudian Id and the repetition compulsion: jouissance. Notorious for its persistent resistance to definition, this concept belongs to the register of the Lacanian real. It is a kind of paradoxical enjoyment in pain (or pain in enjoyment) which both escapes (in the guise of the plus-de-jouir, or objet petit a) and sustains (in the guise of jouissance proper) the symbolic order, and therefore does not belong to the field of meaning. The two orders of the real and symbolic are, in a certain sense, orthogonal to each other. They are radically external to each other, yet they intersect in a mutually supportive manner. And since meaningful existence (exist-sense) pertains only to the field of the symbolic (but made apprehensible by the imaginary), we have access to the real only through the inconsistencies (slips, paradoxes, symptoms, etc.) that it engenders in the discursive medium. The privileging of the symbolic order, therefore, should not be seen to be a Habermasian attempt to either ignore, gentrify, or eradicate the real in order to attain a communicative ideal, but rather as our only possible means to locate it and accept it in its profound meaninglessness. 11 To radicalize this observation, we could say that communication is a strictly ideological process which is made possible only through a necessary misrecognition, a misrecognition of the real contingency of the interpellative act. It is in this sense that we can say that psychoanalysis deals with that which escapes the signification process. The paradox, of course, is that evidence of this objet petit a can only be found on the level of the signifier. And the trick is to find a way to harness this elusive substance so as to make it analytically useful. To broach the issue of science again, we might ask how psychoanalysis can claim scientific status when it starts from the presupposition that the foundation of discourse is senseless rather than rationally meaningful.  Do we not need an ordered, linear,  Newtonian world before we can have any semblance of a science? The answer, of course, since the arrival of quantum physics at the turn of the century, and the more  Chapter One: Setting the Stage for a L.acanian Displacement  12  recent emergence of complexity theory, would seem to suggest otherwise. We can describe chaotic systems using, for example, non-linear equations, even though we may not be able to predict outcomes with a high degree of specificity. The task has become more formal, rather than substantive:  we acknowledge the intractability of exact  solutions of non-linear equations, and so we strive to locate and ascertain the form or pattern of behaviour of chaos itself. Hence, strange attractors, Mandeibrot sets, etc. In the context of psychoanalysis (or, more generally, discourse and ideological analysis) such a science might be called a science of contingency, or a science of the real.  Chapter One: Setting the Stage for a Lacanian Displacement  13  Law and Psychoanalysis in Context: A Brief Sketch  The link between psychoanalysis and law as a social discourse should now be clear. The proposition advanced in this chapter is that Lacanian psychoanalysis offers us a set of conceptual tools which allow us to locate and deal with discontinuities in the  discursive domain. And though it is acknowledged that psychoanalysis has traditionally been understood as belonging primarily to the realm of personal discourse and , the argument has been 4 transformation, ever since Freud , Marcuse’ 12 , and Fromm’ 3 advanced that its conceptual framework is equally relevant at the level of social discourse. It could be argued that the incidence of the psychoanalytic onto the legal discourse has produced subdiscourses which can be usefully grouped into three categories: those which concern themselves with the origins of law; those which deal with the general nature and operation of law; and those which present psychoanalytic insights as essential justificatory components in the legal decision-making process. The paradigmatic instantiation of the former category, of course, is Freud’s Totem and 5 A more recent example, which addresses the first and second categories, is Taboo.’ Smith’s Neurotic Foundations of Social Order. 16 Finally, the third category refers to specific contributions that psychoanalysis has made in the reasoning contained not only in court judgments, but also in academic articles and texts. They usually concern specific doctrines of the law. Examples include insanity, temporary insanity and automatism, sexual)gender differences, racism, child abuse, the battered wife syndrome, best interests of the child, etc.  The psychoanalytic renditions of the origins of law can be further classified into two types: a biological type; and a non-biological type tending toward the linguistic. Thus, we have C. G. Schoenfeld who subscribes to a somewhat rigid biologically-  Chapter One: Setting the Stage for a Jacanian Displacement  14  determined origin which can be linked to, for example, the seat of primitive human (Oedipal) emotions and desires, ie., the limbic brain. In this account, the subsequent evolutionary development of the superego (associated with the neocortex) resulted in the suppression of some of the limbic brain’s functions. 17 So the origin of law can be traced to the ancient taboos against incest and parricide which, “not only were attempts to help block man’s Oedipal wishes, but constituted his first laws as welL” 8 Anthropologically speaking, this translates to the transition from the ‘primal hordes’ in which the powerful ruling male kept all the women to himself, to the insurrection of the sons resulting in the primal parricide (death of the imaginary father) and erection of a totem in his place (emergence of the symbolic father). 19 There are, however, scholars who caution against a biological reductionism that obfuscates the complexity of human behaviour and feelings. Leonard Kaplan and Robert 20 for example, examine the psychoanalytic state of anxiety to show that the Miller, biologization of psychiatry stems primarily, not from a fuller comprehension of mind dynamics, but rather from the apparent pharmacological successes in treating severe mental disorders such as schizophrenia. Other (economic) reasons for the neglect of, say, a more discourse-oriented psychiatry, include pressure from third party providers (eg., government and private medical insurance) unwilling to support ‘long-term insight oriented psychotherapy’, and competition from non-medical mental health workers, as in various family and group therapy practices.  Moving on to examine contributions made by psychoanalysis to specific areas of law, we might cite two examples. In the areas of (U.S.) constitutional law, for instance, Charles Lawrence III has proposed that courts ought not be exclusively concerned with intention and material impact in race discrimination cases. Rather, he suggests that a more fruitful approach would consider the cultural dimension of discrimination. He proposes, for example, “a new test to trigger judicial recognition of race-based behaviour.  Chapter One: Setting the Stage for a Lacanian Displacement  15  It posits a connection between unconscious racism and the existence of cultural symbols that have racial meaning. It suggests that the ‘cultural meaning’ of an allegedly racially discriminatory act is the best available analogue for, and evidence of, a collective unconscious that we cannot observe directly.”  In short, Lawrence, “urges a more  ’ in the context of race 2 complete understanding of the nature of human motivation” issues. Taking a psycho-feminist perspective, Barbara Stark examines how conscious and unconscious gender ideologies shape divorce law (mainly through provisions offering very generous judicial discretion) and its impact on women’s concerns, including child 22 She highlights three contributions of custody and post-divorce standard of living. psychoanalysis to the examination of divorce law. “First, it has been suggested that women internalize the values of the domestic sphere (which thereby become ‘feminine’ values); second, that women as well as men fear and hate powerful women [the ‘all powerful mother’]; and third, that the dynamics of dominance and submission are 2 At the time of her article, nine of the 39 U.S. state task forces investigating gendered.” gender-differentiated impact found that “gender bias detrimental to women permeates 24 every aspect of marital dissolution and child support.”  In considering the broader impact of psychoanalysis on legal theory, we might join Leon Sheleff in noting how sociological jurisprudence provides a link between “the more traditional philosophies of law and the more psychologically oriented approaches. “ Thus, early sociologists of law such as Weber and Durkheim emphasized principles of the same ilk as those in more traditional approaches to jurisprudence, including the usually unquestioned logical operation of law. In 1930, as a contributor to the American School of Legal Realism, Jerome Frank drew upon Freudiaii ideas to highlight to the inconsistencies and uncertainties of everyday life, and how law’s function was an ideological one  --  a comforting but illusory resolution of disputes in a clear-cut,  Chapter One: Setting the Stage for a L.acanian Displacement  16  objective manner. Thus, “[fJar from there being a rational law, there are rationalizations 27 Frank was concerned first, to mark the importance of lower court decisions of the law.” (in contradistinction to the usually-emphasized higher level decisions) in establishing the parameters which characterize the nature of law; second, to explain how exactly “political, economic, and moral factors impinge on a judge’s thinking and decision28 and third, to expose and explain that “the process of judging [not necessarily making;” only in a court situation] seldom begins with a premise from which a conclusion is subsequently worked out.  Judging begins rather the other way around  --  with a  conclusion more or less vaguely formed; a man ordinarily starts with such a conclusion and afterwards finds premises which will substantiate  9 it.”2  There is, therefore, at this  early time a strong sense that legal argument can be, and is, sustained to a very large extent by non-legal ideologies imported during the decision-making and justificatory process, and whose function is to quell our daily uncertainties and unpredictability. Writing in 1935, Edward Robinson 30 echoed Frank’s sentiments in predicting that “it will be a fundamental principle of the new philosophy of law to recognize that every important legal problem is at bottom a psychological problem and that every one of the many traditions about human nature which are to be found in legal learning needs to be gone over from the standpoint of modern psychological knowledge.” “The law is concerned with the regulation, mitigation, and composition of human disputes. The fundamental stuff with which it deals is therefore psychological.” ’ Albert Ehrenzweig 3 32 (1972) and C. G. Schoenfeld 33 (1973) have also taken Frank’s lead in mining the veins formed by the intersection of psychoanalysis and law. However, as Sheleff points out, there has been no recent, thorough theoretical development in this area. 34  As far as a specifically Lacanian take on psychoanalysis and law is concerned, David Caudill is one of a small minority of legal scholars who has attempted to rethink doctrinal law in general from a Lacanian perspective. 35 However, it is clear that he  Chapter One: Setting the Stage for a L.acanian Displacement  17  remains locked into a traditional mode of application of psychoanalysis to legal theory. This, of course, involves the convention of tracking inconsistencies and gaps in the legal discourse and attributing to these sites the status of an unconscious importation of external ideologies. Not that this is not helpful. Rather, the point is that it remains within the ‘false-consciousness’ problematic of traditional modernist ideological analysis. Caudill misses the opportunity to highlight the significant contribution psychoanalysis has to make vis-a-vis the subject. Indeed, he makes frequent reference to the gaps in knowledge and the attempt by the legal discourse to fill in the gap . He notes, for 36 example, that the deep structure or foundation of contract doctrine operates like, or is, language. Not only is the gap in a contract filled by language, and not only are the rules for filling the gap textual, but the ground of contract law is mediated by words. In Lacanian terms, contracting parties are caught in the web of the language that will determine who they become. Judges and legislators attempt to fill in the secondary or incidental gaps of what is assumed to be the primary text of the contract. The gaps, however, contain the meaning of the contract. The contract only hides that meaning. Parties often think of the contract as ordering the situation, but the situation is ordered at the outset by what is not said. L.acan’s shift in emphasis teaches that the unsaid is often more important than what is 7 said?  However, Caudill does not make the link between the gap and the subject as lack, ie., the function of law in appeasing the discomfort of the abyssal nature of the subject. In this view, the processes by which the gap is filled, though not something we can do without, corresponds to the processes of symbolic identification  --  the mechanisms by which the  lack is veiled, In other words, he misses the analytical usefulness of the real order by reading L.acan as a structuralist. 38 Others who attempt to bring to legal theory some Lacanian insights focus on tracing doctrinal inconsistencies to specific ideological anchoring points in areas such as 9 and sexuality. crim& 40 Overall, however, there is little theoretical development beyond the immanent critique of critical legal scholars and the ideological analyses of ‘law and  Chapter One: Setting the Stage for a L.acanian Displacement  18  society’ scholars. More importantly, there has been very little or no effort to relate Lacan’s views on the subject/structure problematic to legal theory, 41 a topic of central importance to our thesis.  Chapter One: Setting the Stage for a Lacanian Displacement  19  Toward a Lacanian Psychoanalytic Jurisprudence and an Ethics of Transformation  We could say, therefore, that psychoanalysis and, specifically, Lacanian psychoanalysis, has not yet been systematically invoked to make ideologico-discursive analyses at the level of legal theory and philosophy. As mentioned above, the plausibility of such a project will depend on the extent to which concepts developed to deal with analysands on an individual basis will be found to be relevant on the order of the social. And recently, Slavoj Zizek has attempted just such an application of Lacanian ideas to political theory. in our view his oeuvre demonstrates the analytical power of Lacan’s conceptual framework, and especially the relevance of his mathemes: SI , S2 42 , $, 43 . 4 a 5 In a certain sense, therefore, we could say that these psychoanalytic concepts exhibit the property of invariance in moving from the personal to the social, just as certain objects in the field of chaos exhibit the property of self-similarity in moving along the axis of scale.  When discussing topics such as order, predictability, and fairness in the context of law and social policy, one invariably confronts issues of authority, legitimacy, and ideology. Though this confrontation has historically been staged within the confines of only a few isolated disciplines (such as jurisprudence, political philosophy, sociology of  law, and comparative law) and within the purview of a small number of scholars, the issues have now such wide currency it is hard to find a legal scholar who has not seriously thought them through. This outward proliferation of ‘raised-consciousnesses’ among legal scholars can be traced to the results of the deconstructive efforts of legal realists and critical legal theorists and, more recently, to the expressed concerns of feminist legal scholars, ecological scholars, and critical race scholars. And the list of critical perspectives continues to grow.  Chapter One: Setting the Stage for a Lacanian Displacement  20  It is in this context, therefore, that we wish to examine the work of Slavoj Zizek. Drawing heavily upon Jacques Lacan and, to a lesser extent Hegel, Zizek develops a framework within which to analyse political discourse. It is the aim of our thesis, therefore, to elaborate upon this framework with the intention of examining its implications for an analysis of legal and social theory under the gaze of the social movements.  Problematizing the Politics of Transformation: Toward an Ethical Discourse of  the Analyst  When we talk of ideological analysis for the purposes of exploring the potential for social transformation, we are directly concerned with human behaviour. All laws are, in one way or another, meant to circumscribe and guide our actions as social agents. Legal and political strategists, therefore, must be doubly aware of the potential multiple effects any one instrument of intervention might have. Now, in contemplating such strategies, it is also important to consider their means of implementation from an ethical perspective.  And here, we might ask what  psychoanalysis can offer us in the form of guidance. In contrast to the traditional approach to social change which begins with a fixed idea of the ‘good’ and proceeds to promote the values which accord with it irrespective of the heterogeneity of the social fabric, psychoanalysis favours a response-oriented approach to change. 46 This is not only meant to address concerns about the possible effects of specific interventions (for example, the effect on sexual minority groups of banning pornography), but also to query the assumption embedded in the notion of social transformation itself, namely, the motivations driving the desire for change in the first place.  Chapter One: Setting the Stage for a Lzcanian Displacement  21  This, of course, brings up the contentious issue of ethics: Who determines what the social symptom is? Who decides what strategy to adopt? Is not implicit in the psychoanalytic approach another version of the ‘good’?  The problem with these  questions, of course, is that there is no single ‘correct’ answer at this level of abstraction. And even at the concrete level, in taking the response-oriented approach, the answer will depend, to a large extent, on the respondent. Nevertheless, even if we remain at this high altitude of abstraction, we could formulate an ethical stance which, though never completely free of some content, will serve as a kind of regulative ideal. What we have in mind here is the distinction Lacan makes between the discourses of the master and the university on the one hand, and the discourses of the hysteric and the analyst on the other. ‘ The idea is to move away from the notion of social transformation through an imposition of master signifiers onto the subject (either explicitly, as in the master discourse, or implicitly, as in the university discourse) toward an attempt to hystericize the socialized individual in an environment conducive to the production of his or her own master signifiers. This process is referred to as the traversal of the social (or individual) fantasy, ie., the exposure and highlighting of the contingent nature of socio-historical (or individual-historical) narrative formation; that each historical ‘turning point’ or ‘decision’ is revealed in its Kierkegaardian ‘becoming’, its profound undecidability, and whose radical openness is only retroactively converted into necessity, thus effacing the multitude of possible alternative historical trajectories.  In Lacan’s typology, law clearly pertains to the discourses of the university and, to a lesser degree, to the discourse of the master. Indeed, the recent work of J. C. Smith in the field of artificial intelligence concerning the deep structures of specific areas of the law could be construed as remarkably successful attempts at identifying structuring master signiflers within highly specialized legal cultures. The question, therefore, for legal and political theory from the perspective of psychoanalysis, is to what extent is it  Chapter One: Setting the Stage for a Lacanian Displacement  22  possible or desirable to expect the legal and political discourses (of a predominantly master and/or university ilk) to become hystericized via their analytic relative. Our focus becomes less what the symptom is and more how the ‘who’ that perceives it is implicated in the very construction of the symptom it wishes to distance itself from. Let us examine this in a little more detail. Current work on legal ideology is still steeped in a rationalist model of the world, whether in principle or in practice. For those who subscribe to such a world view in principle, the implicit assumption is that once a supposed illusion has been exposed, the individual labouring under the unfortunate veil of false-consciousness will see the error of her/his ways and proceed to lead a more ‘genuine’ existence. Many theorists, however, are only too aware of the very human trait which pits ‘irrational’ behaviour against ‘rational’ knowledge within the same person. Nevertheless, these theorists are at a loss when it comes to strategic intervention with an eye to social transformation. They consider themselves without any other option but to offer alternative (‘proper’, ‘correct’, ‘better’) knowledges with the hope that the veil of behavioural false-consciousness (as opposed to the usual cognitive false-consciousness) will soon be pierced. This is not to say that the concept of false-consciousness is not useful (despite its relatively recent bad ). 49 press  Rather, this view, at least at the level of strategic intervention, leaves  untheorized, and thus unrefined, at least two types of individuals: those who remain unconvinced of the error of their ways/beliefs (Jews/blacks/gays/lesbians are abnormal and subhuman, people on welfare are lazy bums) , and those who are convinced and 50 desire to modify their behaviour and yet are unable to do so. And it is worth noting that these observations are not at all of the same order as those made by the law and society scholars, namely of the discrepancy between ‘law in the books’ and ‘law in practice’, for this still appeals to a version of traditional false-consciousness. Rather, they refer primarily to the fetishistic split of the Lacanian subject: ‘I know very well.... (that Jews/homosexuals are just like any other person; that many of my daily activities are a  Chapter One: Setting the Stage for a Iacanian Displacement  23  contributing source to environmental degradation; that I must seek help for my alcoholrelated abuse of my wife; that money and property have become my fetishes and manipulate me; that I need to get started on my paper now) nevertheless, I believe (that Jews/homosexuals are corrupters of this world; that the Earth will heal itself; that I do not have an alcohol problem; that I control my money and property; that I can postpone the start of my paper another day). It should be apparent, therefore, that, to the extent that progressive scholars are concerned with social transformation, and to the extent that the bulk of the targeted social transformation potential consists in addressing individuals belonging to the two groups described above, traditional logical-rational modes of argumentation will not be sufficient. It is here that Lacanian psychoanalysis has the most to offer. In the instance of the above-mentioned example, the first step in a Lacanian approach involves the recognition of such a fetishistic split as the very definition of the human subject; that it constitutes our very condition humaine; and that we must first undertake to assume it rather than ignore or suppress it. In other words, the split is the source of our symptoms: our symptom is nothing but the external symbolic reactionformation to an internal antagonism. We can now begin to appreciate the care and delicacy with which the psychoanalyst must treat an analysand’s symptom. It is the symptom, after all, that constitutes the analysand. We could even say that the symptom is the subject, for the subject is inextricably dependent on it. Perhaps we can also begin to see the significance of the famous Lacanian statement that ‘woman is the symptom of man’. And when we conceive of the Jew as the symptom of the Social, we realize the potential relevance of Lacanian psychoanalysis beyond the realm of the individuaL For did we not say that the stake of psychoanalysis is to show that it is applicable to the social field, even if only to define the limits of any kind of social theorizing? ’ 5  Chapter One: Setting the Stage for a lacanian Displacement  24  In closing this section, we could perhaps highlight an apparent paradox. In an effort to address the impasse of the individual/community dichotomy, poststructurallsts have pointed out that the increasing complexity of life has led to a stupendous  proliferation of discourses. Our identity is as fragmented as the number of discourses we traverse, and any semblance of unitary, autonomous subjecthood that may have existed in a less informationally aggressive era has now virtually disappeared. But has it? The hegemonic status of liberal ideology in the political, legal, and economic domains seems to dictate otherwise.  The idea that we are rational and autonomous agents fully  responsible for our choices and actions still commands respect, and is heavily relied upon, in many academic and professional disciplines. Perhaps more importantly, it still has purchase in the popular imaginary. It is hoped that, by problematizing the subject, psychoanalysis may provide an explanation for this phenomenon and, in doing so, provide a much needed alternative.  Chapter One: Setting the Stage for a Lacanian Displacement  25  A Survey of Psychoanalytic Concepts  Lacan’s Mathemes  As will become very clear during the course of this discussion, Lacan’s mathemes (Si, S2, a, $) will have much to say about the essentialist versus anti-essentialist debate. It will also serve to explain more precisely one of the most significant theoretical concepts, not only in Lacan’s theoretical corpus, but also in recent philosophico theoretical history: the real objet a, a paradoxical object which both escapes and sustains the symbolic order. We can begin by recalling the essentialist (descriptivist) position wherein Intentional meaning precedes the name to which it is attached. Here, a name such as ‘chair’ or ‘table’ denotes a set of descriptive and/or functional properties such that any object that satisfies them will be recognized as a ‘chair’ or ‘table’. The theoretical point is that these properties exist independently of the ‘christening’ process; that they belong to an a priori Platonic realm on which their correlative (and imitative) phenomenal embodiments depend for identity. In contrast, the non-essentialist (anti-descriptivist) highlights the retroactively contingent nature of the naming process itself. 52 In other words, it is the act of ‘baptism’ which links together and retroactively constitutes a set of descriptive features as descriptive features (S2) under the ‘banner’ of a master signifier (Si), such as ‘chair’ or ‘table’  From this description, it should be apparent that, in  order for a word to be meaningful, we must eradicate from our consciousness all aspects pertaining to the purely phenomenal and leave those which pertain to the symbolic, ie., the signifiers. 54 We could put it this way: what is obviously true of the proper name (ie., the contingent nature by which a set of descriptive properties  --  colour of eyes and hair,  Chapter One: Setting the Stage for a Lacanian Displacement  26  characteristics such as shyness or responsibleness, talents such as musicianship or athieticism  --  is linked to the proper name) is true of any other name. The anti  descriptivist view, therefore, allows for the possibility of a complete replacement of one set of descriptive features (S2) by another, while leaving the signifier under which they are organized (Si) intact. There is, in other words, an irreducible gap between Si and S2. But what exactly is this ‘thing’, this ‘impossible-real’ kernel, this ‘surplus’, this 55 that can survive a complete facelift of its defining ‘something in it more than itself’ properties? In other words, what is it that the master signifier, Si, refers to? It is, of course, none other that the Lacanian objec petit a, the product of the signifying process itself. “[W]e search in vain for it in positive reality because it has no positive consistency --  because it is just an objectification of a void, of a discontinuity opened in reality by the  emergence of the signifier.” (SO, 95) It is that which remains constant over a period of time when, for example, the defining properties of an element (eg., ‘sodium’) completely change from the physical-phenomenal to the chemical-atomic. Or, it is that which remains constant when the ‘meter’ is defined no longer in terms of a bar of platinum in Paris, but in terms of the speed of light in a vacuum. And, of course, this applies mutatis nustandis at the level of the purely noumenal, as in, for example, ‘rights’, ‘law’, etc. We thus get our first glimpse of its paradoxical nature: while the objet a remains constant as an invariant, it cannot be pinned down to any specific positive property. The paradox is that on the one hand, its presence is real (ie., defies symbolization), and on the other, its presence can only be detected in reality (the imaginary and symbolic network of meaning). Or alternatively: the signifying process produces the objet petit a which is retroactively posited as its own cause. We have here, in other words, an instance whereby the effect precedes its cause! Thus, we can say (retroactively) that the objet petit 56 aims at in an object (whether phenomenal or noumenal) a is what the master signifier and is thus its correlative. Thus, what guarantees “the identity of the object in all counterfactual situations  --  through a change of all its descriptive features  --  is the  Chapter One: Setting the Stage for a Lacanian Displacement  27  retroactive effect ofnaming itse/ it is the name itself, the signifier, which supports the identity of the object.” (SO, 94-95)  Under the (Zizekian) antidescriptivist view of things then, what exactly happens when we are asked by someone (who honestly does not know) what a ‘table’ is, or what a ‘chair’ is? Indeed, how should/can we answer? Do we, as true Zizekians, declare that a ‘chair’ is and can only mean.., a ‘chair’; that its signification overlaps the very act of enunciation; that it is a ‘signifier without a signified’; that it is, in effect, only an embodiment of a “self-referential, tautological, performative operation” (SO, 99), ie., that it is a piece of the real which is repeatedly referred to and affirmed as ‘chair’ by the intersubjective community (the big Other); that it is disingenuous or dishonest of us to say otherwise? Or do we draw up an appropriate list of positive descriptive features and thus risk propagating the myth that these properties constitute the definitive properties of its essence? Of course, we opt for the latter. 57 But why? The short answer 58 is that this deception or illusion is a necessary prerequisite to one’s accession to meaning and constitutes a crucial ingredient of the logic of transference (SO, 102). We are in transference when we think that each of the positive properties or elements offered to describe a chair possess a meaning immanent to themselves. It is only after a necessary retroactive (and unconscious) inversion that meaning is pinned down (SO, 96-97); that the incessant metonymic sliding of the signified under the signifier is arrested. (This explains why Lacan insists that ‘truth arises through misrecognition’). Thus, the cart must always be put before the horse, so to speak. Only later, after careful (deconstructive) detective work, does it become apparent that the list of positive properties (what Lacan designates as S2) serves only to deceive us, ie., to disguise the fact that a ‘chair’ (the master signifier, Si) is only a ‘chair’ to the extent that the big Other guarantees that a particular piece of the real is stigmatized as 59 This ‘error of perspective’ is what Zizek calls ideological anamorphosis, ‘chair’.  Chapter One: Setting the Stage for a Lacanian Displacement  28  following Lacan’s own discussion of anamorphosis (FC, 79), especially in the context of Holbein’s painting of the ‘Ambassadors’. (FC, 86) Ideological criticism, therefore, must take the form of identifying and flaunting that meaningless spot or stain (ie., the pure signifier whose function is purely structural) which gives consistency to the entirety of the ideological edifice. (SO, 99-100) We should notice, now, how we can already detect some very significant implications of this anti-descriptivist approach for the essentialist-poststructuralist debate, especially in the context of political theory and strategy. [hf the unity of the object is the retroactive effect of naming itself, then naming is not just the pure nominalistic game of attributing an empty name to a preconstituted subject. It is the discursive construction of the object itself. The consequences of this argument for a theory of hegemony or politics are easy to see. If the descriptivist approach were correct, then the meaning of the name and the descriptive features of the objects would be given beforehand, thus discounting the possibility of any discursive hegemonic variation that could open the space for a political construction of social identities. But if the process of naming of objects amounts to the very act of their constitution, then their descriptive features will be fundamentally unstable and open to all kinds of hegemonic rearticulations. The essentially performative character of naming is the precondition for all hegemony and politics. (SO, xiv) ° 6  So, meaning pertains to the order of the symbolic, and is thus dependent on the signifier. The field of knowledge (floating signifiers, S2) is structured. by master signifiers (Si). Thus, the master signifier of ‘communism’ will fix the meaning of, for example, ‘freedom’ such that it means ‘effective freedom’ as opposed to ‘formal bourgeois freedom’; or such that ‘state’ signifies the means by which the ruling class guarantees its hegemonic status, etc. And the master signifiers of ‘liberal-democratic’ or ‘conservative’ would, of course, produce different significations. (50, 102)  And where in all this does the subject as lack  ($) figure? Quite simply, it is the  space which makes possible the effect of meaning. This is because, as we know from  Chapter One: Setting the Stage for a Lacanian Displacement  29  Saussure, meaning is nothing but the bundle of differences among the signifiers (S2) structured by Si. And the effect of difference can only emerge against the background of a blank space, the  $. In other words, the subject as lack is nothing but the place of  inscription of the master signifier, Si. This is why Lacan’s definition of the signifier is ‘that which represents the subject for another signifier’; and his definition of the master signifier is ‘that which represents the subject for all other signfiers’. In other words, the transition from the ‘simple’ signifier to the ‘master’ signifier corresponds to, what in Lacanian terminology, is the transition from a feminine ‘non-all’ (open) set to a masculine ‘all’ (closed) set through the process of capitonnage, ie., the emergence of a pure signifier Si, whose real Other is the subject as lack, $.  The a, therefore, is the substanceless object which remains constant and whose consistency is guaranteed by the Si of the big Other. 61 An object or person’s identity relies on the union of Si and a, on the fact that a ‘sticks’ to Si; and the consequences of becoming unstuck may be horrifying  -,  an event which is related to the Lacanian concept  of separation. We may get a glimpse of the nature of separation by referring to Neil Jordan’s The Ciying Game. This movie’s efficacy is staked upon a scene at about the mid-point of the film in which a person’s (biologicallsexual) identity is revealed for what it ‘really’ is. In Lacanian terms, we have a discordance or separation between Si and a. The symbolic identity, Si, of ‘woman’ is suddenly detached from the ‘essence’ to which it referred (the objet a). In other words, someone (something) is not who (what) we thought s/he (it) was. The horror experienced by a thoroughly duped heterosexually identified viewer is portrayed by the protagonist’s reaction (uncomprehending shock and disgust, vomiting, etc.). It embodies the real chasm left open by the temporary absence of the symbolic identity which concealed it. The suffocation persists until the objet a can be gentrified through the attribution of an alternative Si (eg., ‘transvestite’). 62 We begin to see how the nature of this horror is similar to that experienced by protagonists in science  Chapter One: Setting the Stage for a Lacanian Displacement  30  fiction films in which they are transported from the tranquil past to the foreign and shocking future, or in which they encounter horrifyingly unfamiliar extra-terrestrial life and/or objects. In effect, we have an objet a without an appeasing Si, ie., a foreign object which has not been symbolized and is perceived as a singularity.  The gap between Si on the one hand, and S2 (which flows through the empty  objet petit a) on the other, can also be conceived in terms of a decision (Si) and its justification (S2). The presence of this gap is, of course, acknowledged by the common notion that an opposite decision can always be supported by the same reasons used to 63 justify the original decision.  Under this view, the justification is a retroactive  effect/product of the decision itself. In the legal context, the strictly circular and tautological nature of the decision-making process is highlighted in cases decided by juries. Here, a decision is made by fellow citizens who have had no prior legal training in matters of evidence or reasoning. It is a process whose function, in effect, is to shortcircuit the otherwise circular and never-ending quest for a ‘reasonable’ or ‘fair’ outcome. We can no more set out to arrive at a ‘just’ outcome in a legal debate by following pre-prescribed rules than set out to fall in love with someone by following a set of instructions. ‘I am in love’ is a state which always already was. That you are in love with someone only hits you after the fact; after you are already in love. Strictly speaking, therefore, one does not find oneself in the state of ‘falling’; rather, one has (or has not)  already ‘fallen’. And, as far as justification is concerned, one may of course attempt to list the attributes that provided the impetus in arriving at a legal or romantic decision. It would be a mistake, however, to assume that an exhaustive list of such reasons were possible or even desirable. This is why, on the level of common sense, it is perceived as offensive, in answer to the question ‘why do you love me,’ to attempt to enumerate such properties. (TN, 125) At the level of law, the attempt to exhaustively explicate a legal outcome in terms of rules and principles is none other than to succumb to the positivist  Chapter One: Setting the Stage for a Lacanian Displacement  31  temptation. And what exactly do these chains of knowledge (S2) aim at when justifying a particular decision (Si)? The objet petit a, of course.  Thus, the objet a is very paradoxical: it is simultaneously a product of the symbolic process and its cause-resistance. The real is what we try to grasp, but cannot (here we might think of the Nazi attempt to enumerate the characteristics of the Jew so as to scientifically locate the objet a); and the very attempt at grasping it creates the symbolic order. In other words, the impossibility of grasping it is the very condition of the symbolic order’s possibility. The idea, then, from a psychoanalytic perspective, is to achieve a certain distance from the big Other, so as not to succumb, as in the Nazi-Jew scenario, to the totalitarian temptation, ie., the temptation to eliminate the objet a which, as will become clearer later, is just an external manifestation of an internal antagonism.  An Ethics of the Real in the Context of Ideological Interpellation  In this account, we also get to glimpse the beginnings of a Lacanian ethic  --  an  ethics of the real. This ethic is encapsulated in his famous dictum ‘don’t give way to your desire’. It signals an attempt to briefly suspend the symbolic Other (a ldnd of Derridean differance), to note the ideological gesture of symbolic interpellation, ie., to recognize that by assuming a symbolic mandate, SI (eg., ‘daughter’, ‘worker’, ‘liberal’, ‘Nazi’, etc.), we elude the truth of our subjecthood.  Symbolic identification (ie.,  identification with an Si), however, cannot function as an eluding tactic unless there is a moment of illusion proper to ideology. In other words, “when I recognize myself as the addressee of the call of the ideological big Other (Nation, Democracy, Party, God, and so forth), when this call ‘arrives at its destination’ in me, I automatically misrecognize that it  Chapter One: Setting the Stage for a Iacanian Displacement is this very act of recognition which makes me what I have recognized myself as  32  --  I don’t  recognize myself in it because I’m its addressee, I become its addressee the moment I recognize myself in it.” (ES, 12) Assuming a symbolic mandate, therefore, entails a certain misrecognition, or untruth. The ideological illusion consists in the presupposition of the existence of the big Other. And his ethics of suspension is what Iacan calls  separation. In a sense it consists in alienating the alienating agency. We could, perhaps, remark that Peter Gabel’s lamentations concerning the alienating function of the legal discourseM. ignores the fact that ‘normal’, non-legal existence is also always alienating. In other words, alienation is synonymous with symbolic identification. In a sense, we could say that we deceive ourselves and others by assuming identifications presented to us by the Other. We act as if they are intrinsic to our being, that they define our essence. And what’s more, there is virtually no escape from this alienation. The only solace we can aspire to, therefore, is to achieve a certain distance from the Other, from the object of desire, to accept the fact that (to use another Lacanianism) the ‘Other does not exist’, to not give way to our desire; to become further alienated through separation; to attempt an overlap between our lack  ($) and the lack of  the big Other (S(ø)).  Let us now move on to examine, more precisely, the nature of the Lacanian subject and how this leads us to an ethics of the real.  Chapter One: Setting the Stage for a Lacanian Displacement  33  The Subject  In order to glimpse the significant shift introduced by Lacan in the construction of the subject, it is perhaps easiest to start with another conception which is fast achieving hegemonic status: the poststructuralist subject. The current poststructuralist view dispenses with the now vulgar-metaphysical conception of the subject as a unitary, centred, and autonomous agent. At the risk of reducing the many fine variations on the poststructuralist subject-theme, one can attempt a ‘typical’ reading  --  one often assumed  by Foucauldian and/or Derridean apologists. Here, the subject is conceived as a series of attributes or subject positions which are only temporarily and precariously sutured about a constantly decentred centre, and which always fail to represent the subject accurately. These subject positions are (over)determined by a set of discourses in which the subject participates via imaginary and symbolic identifications (ie., in answering the ideological calls of the imaginary other and the symbolic Other). They can never be exhaustively enumerated, for they cannot be fixed: they are constantly being threatened and subverted by the very openness of the socio-symbolic landscape (ie., the start-stop metonymic sliding of the signified under the signifier). Thus, the subject can never achieve full identity with itself. It is decentred. Now, to understand the proper dimension of the Lacanian subject we can begin from this state of a successfully subjectivized individual. In a bid to subjectfr, we must now remove each of these subject positions one by one until none remain. The empty form we are left with, the lack, the abyss, is the subject. In this view, therefore, the subject emerges when there is a failure of identification. Hence, Lacan’s denotation of  the subject as a crossed-out fullness, $. We can see, then, how it is the very process/structure of subjectivation (ie., assumption of subject positions) that masks the true nature of the subject, namely the lack  Chapter One: Setting the Stage for a Lacanian Displacement  34  which remains once the substantive predicates have all been withdrawn. As Zizek explains:  Our predominant idea of the subject is, in Lacanian terms, that of the ‘subject of the signified’, the active agent, the bearer of some significations who is trying to express himself in language. Lacan’s starting point is, of course, that symbolic representation always distorts the subject, that it is always a displacement, a failure that the subject cannot find a signifier which would be ‘his own’, that he is always saying too little or too much: in short, something other than what he wanted or intended to say.... To put it paradoxically: the subject of the signifier is a retroactive effect of the failure of its own representation; that is why the failure of representation is the only way to represent it adequately.... [Thus,] we have a kind of dialogic economy: we articulate a proposition defining the subject, our attempt fails, we experience the absolute contradiction, the extreme negative relationship between the subject and the predicate and this absolute discordance is the subject as absolute negativity. (SO, 175) [“In other words, all my positive consistency is a kind of ‘reaction-formation’ to a certain traumatic, antagonistic kernel: if I lose this ‘impossible’ point of reference, my very identity dissolves.” (SO, 176)1 --  --  We can see now the significance of Zizek’s critique of Althusser. The emphasis of Althusser was on the process of identification and not its object-cause. In other words, Aithusser’s account omits the significance of interpellation as a mechanism by which the subject’s abyss is veiled. And it is worth noting that, to use psychoanalytic terminology, the hysteric is the one who has bared naked the abyssal nature of his or her subjecthood. The failure of interpellation is betrayed by the question ‘why me?’ ie., of someone who simultaneously questions the symbolic mandate foisted upon her/him, and desires to be pacified by covering up his/her lack. A recent exemplification of the hysterical subject is the young Jerry Conlan figure in Jim Sheridan’s In the Name of the Father. We have, here, a clear depiction of the failure of the interpellation process, ie., the failed attempt by the State to define this victim of contingency (his mere presence in the vicinity of the pub explosion is sufficient) as an ‘IRA terrorist’. In effect, the question that Conlan constantly asks is 65 “Why me?’  Chapter One: Setting the Stage for a Lacanian Displacement  35  This is why hystericization is the aim of analytic discourse. It is an attempt to bring the analysand into a position from which he or she may realize the contingency of the assumption of a symbolic mandate, and thus of a particular fantasy. The analysand  can then hope to achieve a certain distance from his or her own fantasy so that it becomes more flexible. And we can immediately see the importance of this if we accept that we relate to one another only insofar as the other takes up a position in one’s fantasy. This is why Lacan never tires of repeating that ‘there is no sexual relationship’:  in the  heterosexual instance, man can relate to woman only insofar as she embodies the objet a in his fantasy ($>a). In this way, we might say that relationship ‘problems’ are a function of fantasy rigidity. And this, of course, can have potentially tragic consequences, as when a woman refuses to act out the male fantasy-ritual of clitorectomy.  To return to our discussion of the subject proper, we could say that there clearly appears a difference between the Derridean and Lacanian subjects. Zizek describes this difference: “With Derrida, as with Lacan, the identity of the subject  --  leading to it (identification, interpellation, ‘recognizing oneself as subject’)  the process --  is always  truncated, failed, the subject’s condition of possibility is simultaneously the condition of its impossibility.” “With Lacan, however, it is not enough to say that the subject’s identity is always, constitutively, truncated, dispersed because of the intrusion of an irreducible outside. The point is rather that the ‘subject’ is nothing but the name for this ‘mutilation’, for this impossibility of the ‘substance’ to realize itself fully, to achieve its full identity-with-itself.” “[Tjhe subject is the negative of the strange body which prevents substance from achieving identity with itself.” Thus, the passage from Derrida to Lacan can be articulated by the “inversion of ‘mutilated subject’ into ‘subject qua mutilation’.” (EP, 95) “It is in this sense that the enigmatic Lacanian phrase defining the subject as an ‘answer of the Real’ is to be understood: we can inscribe, encircle the void  Chapter One: Setting the Stage for a Lacanian Displacement  36  place of the subject through the failure of his symbolization, because the subject is nothing but the failure point of the process of his symbolic representation.” (SO, 173) It is worth noting that the priority given by Lacan to the signifier should not be seen as an eclipse of the subject (as is the case in the structuralist world-view), but rather as an attempt to highlight the subject’s very heavy dependence on it. In this sense, we can say that language lives through us, not the other way around. The subject can only be retroactively posited as an effect of the symbolic order’s inconsistency. If the symbolic order were to achieve full identity with itself, there would be no subject.  Another way to look at the Derrida-Lacan relationship is to say that Lacan takes Derrida more seriously than Derrida himself. Lacan acknowledges the debt to Derrida’s close readings (of, for example, Husserl, Saussure, Levi-Strauss, Rousseau, Condillac, Freud, etc). They demonstrate, with utmost rigour, the cornmonsense awareness of how meaning can never achieve full closure; how something always escapes or prevents its self-identity; how one never says exactly what one means and never means exactly what one says; how what one says is always already subverted by its dangerous supplement. Indeed, it is in this sense that one can say that his work is always a variation on the same theme. But Lacan does not stop there. Rather, he takes this as his starting point. (SO, 175) It is in this context that the function of the objet petit a becomes apparent. It represents an attempt by Lacan to formalize the impossibility of closure. We can clarify this further by referring again to the antagonistic relation. The paradigmatic antagonistic relation is, of course, the Hegelian Lord and Bondsman. Here, the relation is seen to be composed of two subject positions. But the important thing to realize is that the relation is asymmetrical: the Bondsman cannot achieve full identity with himself; he is marked by a certain failure or blockage; and it is this blockage which becomes externally projected onto the Lord, such that the Lord is perceived as a foreign element which prevents the Bondsman from achieving self-  Chapter One: Setting the Stage for a Lacanian Displacement  37  identity. In other words, the Lord is the external manifestation of the internal blockage of the Bondsman. It is in this sense that we can say that the relation is one of extimacy, where the prefix ‘ex’ denotes something external to one’s intimate being. This analysis also applies to the case of the Social vis-a-vis the Jew. We can see that the drive to homogenize the political field (as in Rawis), though well-meaning, can be dangerous. This phenomenon of the constitution of the Social by the alienation, if not elimination, of an Other can be clearly observed in the breakdown of communism in Eastern Europe and Russia. It explains the irruption of enjoyment (ie., jouissance) in the form of anti-semitism, nationalism, and religious fundamentalism  --  a development that  has come as a shock to many pundits who thought pluralist democracy was an inevitability. It is not. Why? Because the disintegration of an enemy means that a new one must be found for the purposes of consolidating one’s identity. (And, today, the usual targets are immigrants.) We can see now that the totalitarian temptation consists in the Social misperceiving this Outside as foreign to itself, as menacing, and thus in need of elimination. The psychoanalytic stake consists in creating an environment in which the extimate nature of the relation can be apprehended. In Mouffe’s terms, the aim is to convert the pathological antagonism into a simple neurotic agonism.  The Lord and Bondsman template can be used to explain a variety of behaviours. Take the issue of handing in to an instructor one’s paper assignment. Initially, the deadline lies on the horizon, just out of view; and, for many, this translates into a process whereby many interesting and inventive practices are born in a bid to sustain a procrastinating habit.  As the deadline approaches, its imminence being directly  proportional to the workpace, one realizes that even a frenzied attempt at the last moment will not be sufficient to produce a satisfactory result. The deadline, therefore, is viewed as an impediment or obstacle to the ‘perfect’ paper, the successful product. In short, the  Chapter One: Setting the Stage for a Lacanian Displacement  38  deadline prevents us from reaching our desired ego ideal (pertaining to the symbolic order) or ideal ego (pertaining to the imaginary order); it prevents us from achieving full identity with ourselves. In other words, the fantasy involves the possibility of full closure  butfor the deadline and, in this manner, it structures our desire. The lesson to learn from the Lord and Bondsman scenario, of course, is that this impediment is nothing but an external projection of an internal blockage. And this is why, for those (procrastinationprone) individuals, the most subversive strategy (from the instructor’s perspective) is to unhesitatingly grant an extension. The idea is that the student will come to realize his or her impossible relationship to the deadline such that it is no longer so intensely reified as an external obstacle. This analysis applies also to the opposition language/external reality. The idea here is that language can only become a totality, a closed volume, against an ‘external reality’. In the absence of an ‘external reality’ or an equivalent master signifier, we are left with an open and ceaseless circularity. Witness the feeling of ‘chasing one’s tail’ in attempting to pin down the meaning of a word through the characteristically never-ending cross-referencing of a dictionary. What must be grasped is that this ‘external reality’ is nothing but the external manifestation of the internal antagonism of the linguistic medium itself. Missing this point leads to a reification-fetishization of ‘external reality’, involving the futile attempt to grasp it independently of language. Finally, and by no means exhaustively, we could mention how the Lord and Bondsman paradigm also addresses the issue of empathy and communication. Here, we might observe that empathy and communication between individuals and between cultures is possible not because of any common values, but rather because of a common blockage, a common lack. (TN, 31) It is this lack which is the engine of language.  We can see now the problem with advocating such warm fuzzy things as dialogic intersubjectivity (Hutchinson ), or a Habermasian communicative ideal, or a Rawisian 67  Chapter One: Setting the Stage for a Lacanian Displacement  39  homogeneous public, political field devoid of conflict. The moralizing strategies which preach non-violent relations with others need to be radicalized such that the Other is seen to be a positivization of the lack at the centre of our being. In other words, it is our position that there is a striking difference between conceiving full subjectood as possible and conceiving it as impossible. In viewing the antagonistic Other as a projection of our own self blockage, the totalitarian temptation can be assuaged into a more manageable 69 In other words, we must make a shift from a perception of the Other as agonism.  external to the Other as an external projection of an internal self-impediment. ° 7  Ethics Revisited: Traversing the Fantasy  What this account suggests, therefore, is the significance of language and culture inasmuch as they provide us with the material signifiers with which to structure our desires (ie., fantasize) and cover the lack of both ourselves and the big Other. Derrida repeatedly shows us how we can never achieve full identity with ourselves, that we never say what we mean to say, that we always say too much or not enough, that every statement that we make is always subverted by a dangerous supplement. L.acan’s ontological version of the subject as lack provides us with a first draft of an explanation. It also implies an ethic  --  an ethic which mocks the essentialists’ attempt to pin down the  forever elusive objet petit a by attempting to list all the defining characteristics of, for example, a person or an object. It means that we must come to accept the split which defines us as humans, and to avoid perceiving external objects as the cause of our inability to achieve a 4 bigher state of consciousness’. On the social level, it also serves to deflect the totalitarian temptation whereby Society’s internal antagonistic split is  Chapter One: Setting the Stage for a Lacanian Displacement  40  projected onto an external object (the Jew, for example) that embodies the obstacle to its full identity, and must therefore be eliminated.  It would be reasonably accurate to regard Lacan’s later work as an attempt to focus and further theorize upon that ‘little piece of the real’ which escapes the signification process: the objet petit a. Let us now attempt to more precisely delineate its relation to fantasy; and we shall do this by a detour through the hysterical subject. As we have seen, it is through imaginary and symbolic identifications that a subject becomes “integrated into a given socio-symbolic field” (SO, 110); that she adopts certain socio-symbolic mandates. The important thing to notice is that this mechanism by which the individual is (retroactively) interpellated into subject is not as smooth and clean-cut as it seems: there is always a gap or leftover that serves to unsettle the subject. This unsettling effect is strongest and most manifest in the hysterical subject who, faced with the big Other’s edict to assume a symbolic mandate (‘you are my master, my wife, my king’), must ask the big Other ‘Che Vuoi?’ (E, 312), a question whose variations can be partially listed as “‘You’re telling me that, but what do you want with it, what are you aiming at?’,” (FC, 214; SO, 111) ‘what do you really want?’, ‘why am I what I’m supposed to be, why have I this mandate?’, ‘why am I...a teacher, a master, a king...?’, “what is it in me that makes me the...wife, the king?” (LA, 131) Briefly: ‘Why am Iwhat  you [the big Other] are saying that Jam?’ (50, 113). Che Vuoi? aims to discover what the desire of the big Other is (in the subjective genitive sense, ie., what is the big Other’s desire?). “The hysterical question opens the gap of what is ‘in the subject more than the subject’, of the object in subject which resists interpellation  --  subordination of the  subject, its inclusion in the symbolic network.” (SO, 113)71 And what is the answer to che vuoi? It is, of course, fantasy. It is what constitutes the subject’s attempt at answering this question, albeit unconsciously; of dealing with the surplus (the little piece of the real) that escapes the signification process.  Chapter One: Setting the Stage for a Lacanian Displacement  41  “If the Name-of-the-Father functions as the agency of interpellation, of symbolic identification, the mother’s desire, with its fathomless ‘Che vuoi?’, marks a certain limit at which every interpellation necessarily fails.” 72 (SO, 121) The most troubling aspect of this desire of the Other is that the question betrays a certain want, a certain lack. This is what Lacan calls the lack of the Other, S(ø). It is this lack that gives rise to Che Vuoi?, and it is the function of fantasy ($a) 73 to conceal the Other’s void. In the case of anti-Semitism, for example, “the answer to ‘What does the Jew want?’ is a fantasy of ‘Jewish conspiracy’: a mysterious power of Jews to manipulate events, to pull the strings behind the scenes.” (SO, 114) The crucial point that must be made here on a theoretical level is that fantasy functions as a construction, as an imaginary scenario filling out the void, the opening of the desire of the Other: by giving us a definite answer to the question ‘What does the Other want’, it enables us to evade the unbearable deadlock in which the Other wants something from us, but we are at the same time incapable of translating this desire of the Other into a positive interpellation, into a mandate with which to identify. (SO, 114-115)  We can understand, therefore, why the psychoanalytic ethical encounter calls for a traversal of fantasy: to show how the fantasy conceals a nothing, the Other’s lack which is also our own.  Chapter One: Setting the Stage for a Lacanian Displacement  42  Relevance to the Critique of Ideology  Here, it is worth quoting generously as Zizek outlines, and argues for, a two step process to ideological critique. The important point to grasp is that a Lacanian-informed critique of ideology has as its target not so much the realm of imaginary and symbolic identifications. It does not concern itself so much with interpellation per Se. Rather, it aims more at the real register which escapes the process of signification, ie,, the dimension beyond interpellation. Referring to Lacan’s graph of desire, 75 we could say that such a critique places itself firmly within the upper level rather than the lower level, the latter of which serves as the primary arena for the fast-becoming norm of poststructural discursive analysis. [T]he impossible ‘square of the circle’ of symbolic and/or imaginary identification never results in the absence of any remainder; there is always a leftover which opens the space for desire and makes the Other (the symbolic order) inconsistent, with fantasy as an attempt to overcome, to conceal this inconsistency, this gap in the Other. And now we can finally return to the problematics of ideology: the crucial weakness of hitherto ‘(post-)structuralist’ essays in the theory of ideology descending from the Aithusserian theory of interpellation was to limit themselves to the lower level, to the lower level of L.acan’s graph of desire to aim at grasping the efficiency of an ideology exclusively through the mechanisms of imaginary and symbolic identification. The dimension ‘beyond interpellation’ which was thus left out has nothing to do with some kind of irreducible dispersion and plurality of the signifying process with the fact that the metonymic sliding always subverts every fixation of meaning, every ‘quilting’ of the floating signifiers (as it would appear in a ‘post structuralist’ perspective). ‘Beyond interpellation’ is the square of desire, fantasy, lack in the Other and drive pulsating around some unbearable surplus-enjoyment. ....[Thus, there are] two complementary procedures of the ‘criticism of ideology’: --  --  -one is discursive, the ‘symptomal reading’ of the ideological text bringing about the ‘deconstruction’ of the spontaneous experience of its meaning that is, demonstrating how a given ideological field is a result of a montage of heterogeneous ‘floating signifiers’, of their totalization through the intervention of certain ‘nodal points’ [ie., tracing how a certain category, such as ‘woman’ or ‘Jew’ is constructed (overdetermined) by the operation of a range of different discourses]; --  Chapter One: Setting the Stage for a Lacanian Displacement  43  -the other aims at extracting the kernel of enjoyment, at articulating the way in which beyond the field of meaning but at the same time internal to it an ideology implies, manipulates, produces a pre-Ideological enjoyment structured in fantasy. [“As such, fantasy is not to be interpreted, only ‘traversed’: all we have to do is experience how there is nothing ‘behind’ it, and how fantasy masks precisely this ‘nothing’. (But there is a lot behind a symptom, a whole network of symbolic overdetermination, which is why the symptom involves its interpretation.)” (SO, 126)1 (SO, 124125)76 —  --  We can see, therefore, how a Lacanian psychoanalytic theory brings an insightful contribution to the debate on ideology through the concept of fantasy. This contribution could also be conceived in terms of the fetishistic split between knowledge and action, ie., between our internal antagonism and its external symptomatic projection. Here, the debate can be formulated in terms of the following question: ‘On what side does ideological illusion lie  --  on the side of knowledge, or on the side of action (ie.,  the doing)’?’ (SO, 30-31) As Zizek points out, Marx (and most current theorists) places it on the side of knowledge. Thus, his standard definition of ideology (in his Capira1”) as false consciousness follows the pattern 4 they don’t know what they are doing, but they are doing it anyway’. (SO, 28) Now, if we could only disabuse ourselves of this knowledge-illusion, (ie., become aware of the true nature of things: that money and property are the expression of social relations, not fetishistic ‘objects-in-themselves’), we would indeed not be disillusioned. It is in this context that Zizek suggests that we should view Peter Sloterdijk’s contribution to the debate. In his Critique of Cynical Reason, 78 he argues that Marx’s ‘false-consciousness’ pattern of behaviour has been superseded by the ‘cynical’ pattern of behaviour: ‘they do know what they are doing, but they are doing it anyway’. (SO, 29). Thus, in conceiving ideological illusion on the side of knowledge, we can legitimately say that we are living in a ‘post-ideological’ world. Zizek, however, disagrees. This is because ideological illusion can be found on the side of action.  Chapter One: Setting the Stage for a Lacanian Displacement  44  What post-ideological cynics “overlook, what they misrecognize, is not the reality, their real social activity. They know very well how things really are, but still they are doing it as if they did not know. The illusion is therefore double: it consists in overlooking the illusion which is structuring our real, effective relationship to reality. And this overlooked, unconscious illusion is what may be called ideological fantasy.” In other words, the proper and “fundamental level of ideology.., is not of an illusion [on the side of knowledge] masking the real state of things but that of an (unconscious) fantasy structuring our social reality itselP ... Cynical distance is just one way 9 ways  --  --  one of many  to blind ourselves to the structuring power of ideological fantasy: even if we do  not take things seriously, even if we keep an ironical distance, we are still doing them.” (SO, 32-33) The trap the cynic falls into could also be articulated in terms of Lacan’s big Other. He recognizes full well that the ‘big Other does not exist’. What he ignores, however, is the efficacy of the big Other despite its inexistence. He underestimates, in other words, the real consequences stemming from subjects-supposed-to-believe. (SO, 185-186) This, of course, is just a replay of the distinction between the lower and upper levels of Lacan’s graph of desire. Placing ideology solely on the side of knowledge is equivalent to restricting ideological critique to symptomal, deconstructive, and interpretive readings (ie., the lower level of the graph corresponding to the universe of meaning). Opening up the side of activity to ideological analysis provides the key to isolating the fantasy and its correlative, the sinthome, that structure reality itself, ie., the very ground from which our actions spring (ie., the upper level of the graph corresponding to jouissance, the source of the big Other’s inconsistency).  Chapter One: Setting the Stage for a lacanian Displacement  45  The foregoing discussion centering on some of Lacan’s basic concepts, including their implications for the critique of ideology, will serve as a backdrop for a more detailed elaboration upon his potential contribution to legal theory in the context of a transformative politics.  Chapter One: Setting the Stage for a Lacanian Displacement  46  Specifying the Lacanian Contribution to Legal Theory in the Context of a Transformative Politics  In considering more precisely the specific contribution of a Lacanian approach to legal and political theory, it is perhaps helpful to begin by problematizing the status of theory itself. For theory does not belong to a realm separated from the events of our every day lives (at least for those who seriously subscribe to it). Rather, it represents a world view through which we apprehend the trivialities and vagaries with which we are constantly confronted. Like any discursive formation, theories are identified by the unique signifier patterns that congregate about specific issues (ie., the specific attempts through symbolization to grasp the real). Thus, issues concerning decision-making processes, interpretive constraint, and the rights discourse will be framed differently (and will therefore give rise to different assessments) depending on the legal theory invoked: natural law, positivism, law and economics, materialist marxism, poststructuralist postmarxism, etc. We can get some idea, therefore, of the specific nature of a Lacanian contribution to contemporary legal theory by looking at the manner in which it modifies current approaches to these issues. It is in this sense that we advocate a Lacanian displacement, a displacement whose causal nexus is the subject and its failed attempts at identification. We have already suggested why we think our thesis goes beyond the traditional psychoanalytic forays into law. It is now incumbent on us to show, in more detail, why we think Lacan can offer something unique to today’s theoretical debates in legal academia, especially from the progressive standpoint. And we could abbreviate his contribution with two words: subject and ethics.  Chapter One: Setting the Stage for a Lacanian Displacement  47  The Subject of Ethics  One could argue that there is no political or legal theory that does not rely, either explicitly or implicitly, on a particular epistemology/ontology and on a particular view of subjectivity or agency. And since one of the foundational and most powerful pillars of psychoanalysis is its theory of subjectivity, it will undoubtedly prove critical in any endeavour first, to launch a Lacanian critique of existing political and legal theories, and second, to establish the contours of a revised theory. Psychoanalysis dispenses completely with any notion of an essential, unitary, and rational agent who is fully conscious of his or her thoughts and actions. But so, also, does it eschew the poststructural agent which is as fragmented as (or which is effaced by being reduced to) the number of discourses it traverses. Now, current legal theoreticians subscribe to one or more of the versions of the subject so readily dismissed by Lacan. We might ask, therefore, what remains. And the answer is, of course, nothing; or, more precisely, a void. As we have already seen, the Lacanian subject, like the democratic ), is the subject as lack: 80 subject (according to Claude L.efort  $.  This (re)definitional move may, at first sight, seem trivial, even offensively so. But we shall see that it harbours the potential to significantly alter the theoretical landscape. In a first approach, we could point out how we are forced to reconceive the psychoanalytic process of identification  --  a process which currently serves as the main  focus of many poststructuralist legal academics. Acts of imaginary and symbolic identification are seen not so much as mechanisms of identity consolidation, but more as so many ways of evading the true lack of subjecthood. And can we not, here, detect the intimations of an ethics? We should remark that the above allusion to an ‘evasion’ should not be taken to downplay efforts made by minorities and the oppressed to create new identities. On the  Chapter One: Setting the Stage for a Lacanian Displacement  48  contrary, reconceiving the subject as lack means that identity formation is an inevitable  and crucial part of one’s psychic development. More importantly, it highlights the social character of the individual. It shows us that the subject is radically empty and at the mercy of the big Other (the symbolic order). Its lack is the object-cause of its desire, causing it to turn outward and assume a symbolic mandate (eg., ‘mother’, ‘son’, ‘lesbian’, etc.). But while it is necessary to attend to the issue of how certain identities (eg., ‘woman’, ‘gay’, etc.) intersect with the symbolic order in general, Lacan suggests we look more closely at what propels the process of identification: the subject as lack and its desire to fill it. One of the key poststructural contributions to theory concerns the nature of identity: symbolic identity is differential; it is sustained by the bundle of its differences from other signifiers in the symbolic order. Often, it is consolidated by its opposition to another subject position which condenses a series of meanings. Thus, we very rapidly come to recognize many such mutually supportive identities:  Nazi/Jew,  Patriarch/Feminist, Industrialist! Environmentalist, etc. To understand more precisely what psychoanalysis adds to this poststructuralist common sense, we could compare their respective strategic responses. And here the ethical colours begin to show.  Some poststructuralists advocate a non-violent  relationship to the Other as part of their strategy. Others advocate a proliferation of identities so as to diffuse the starkness of the oppositions. Now, the danger with such programmatic approaches is that they can often come across as strikingly moralistic and self-righteous. It suggests that some subject positions are good and some are not so good; that I am right and you are wrong; thou shalt love thy neighbour. These approaches correspond to the master (and university) discourses in which master signifiers are imposed upon the subjects. And, of course, this only highlights the difficulties faced by educational institutions (at both the secondary and post-secondary levels) which attempt  Chapter One: Setting the Stage for a Lacanian Displacement  49  to introduce self-declared ‘progressive’ courses to address issues of poverty, racism, sexism, etc. The irony in many such poststructural strategies resides in the fact that their form looks remarkably modernist Indeed many, such as Gayatri Chakravorty Spivak, have openly assumed such a paradoxical stance by retaining the full poststructural rigour at the level of analysis but adopting the attitude of ‘strategic essentialism’ at the level of planning. Even so, as we have just seen, this approach seems to make little change in terms of one’s world view and practice. One could even say that things are made harder because the historicist’s systematic reduction of practically everything to discourse, including the subject, means that we are left with precious little with which to garner support or to attach hope. Lacan, on the other hand, elevates historicity at the expense of historicism. Not everything can be relativized for the real order resists all modes of symbolization. And it is in this sense that the subject, emptied of all content, belongs to the real dimension. It exists as a meaningless stain, a point of singularity which defies gentrification. What must not be missed, from the Lacanian perspective, is what makes possible the creation of the antagonism: the subject opens up the space into which its antagonistic subject position slips. In psychoanalytic jargon, this translates as the projection of our own internal blockage onto an external Other which embodies the objet petit a, and which therefore constitutes the correlative of the subject as lack. In other words, the Jew is no longer seen as external but rather as exrimae and contingent. It is now a short step to recognize the ethics implied in the preceding paragraph. Such an ethics of the real calls for a full assumption of our lack; to recognize in the antagonistic Other the materialization of our own self-blockage; that your relationship to the Other is an externalization of one’s self-relationship. We see, therefore, how precisely this ethical attitude can be articulated.  As soon as we succumb to the  temptation of filling in our lack so as to conceal it, we give in to our desire, and we fall  Chapter One: Setting the Stage for a L.acanian Displacement  50  for the totalitarian temptation. The idea is not to avoid identification, but to avoid it as a means ofavoiding our lack. This ethics, therefore, is formulated negatively (as was done by Freud) as a call to resist the lure, to maintain a separation between the symbolic identification and the lack which it veils. And we could add here that the traversal of fantasy consists in nothing but the staging of this absence; that the fantasy invoked in response to the ‘cite vuoi?’ is nothing but the attempt to conceal the inconsistency of the Other. The relevance to legal theory should now be apparent. From a theoretical perspective we see how it adds a crucial element to the study of law whose unit of analysis is the social relation; and also how it may cause us to reconsider both the attitude and manner in which we go about considering issues of social transformation. It is no longer sufficient to say that a social relation must be examined in terms of its multidimensionality; to describe how the dimensions of which it is comprised interact with the legal dimension. Neither, however, is it sufficient to break down a social relation into its component subject positions and demonstrate how each is discursively overdetermined; to show how each defines itself only through its opposition from the other. One can no longer rely on a model which subscribes to a traditional conception of false-consciousness which purports to modify behaviour by demonstrating the illusion that we are labouring under; to simply show how things could be otherwise; to historically contextualize a social relation; in short, to engage in symptomal deconstructive readings whose premise is that more (but differently organized) information will effect progressive change, and whose result is often a kind of fetishization of knowledge. However, this is not meant to dismiss the critical significance of such hard work. On the contrary, they constitute an indispensable first step to tackling the issues which our thesis (in concert with the new social movements) is most concerned to address: bow to transform destructive antagonistic sites into less pathological agonistic sites.  Chapter One: Setting the Stage for a Lacanian Displacement  51  Symptomal readings are crucial because they are an important source of floating signiflers; they constitute indispensable elements for a kind of Hegelian ‘weaving of the spirit’. In other words, they are a means by which the surface lying at the bottom of a tradition is disturbed  --  a surface whose thusly unsettled and disengaged signiflers come  to embrace a newly discovered free-floating state. And it is from this pool of floating signiflers that new meanings emerge; that new jouissances are circumscribed. But if we take seriously the insights of Lacan, we find that though such symptomal readings are a necessary prerequisite to social transformation, they are not sufficient. Indeed, strictly speaking, neither is the much touted psychoanalytic traversal of fantasy  --  the process by which we come to see not only that ‘things could have been  otherwise’, but that our identifications and imagined scenarios conceal nothing, a lack, a void in ourselves and in the Other. Rather, the stake of psychoanalysis is to create the circumstances in which the analysand can come to identfy with the sinthorne; to realize that the form of the symptom betrays her real jouissance; to recognize in the antagonistic relation to the Other (the symptom) the truth about herself; to fully assume, rather than evade or cynically alienate, the fetishistic split that defines our very condition humaine.  We can now better understand Lacan’s ethical stance toward the social transformative project. And perhaps we could also consider it against the background of the current dilemma that faces many critical legal theorists, especially feminist legal scholars. What we have in mind here is, of course, the nauseous ‘pulling of the carpet’ effect caused (through the invocation of a whole array of deconstructive techniques) by our confrontation of the radically contingent nature of social construction. If everything is political, if my opinion is as good as yours, if values are always relative, how can we justify our appeals to a ‘better’ norm, to a more ‘equitable’ standard? At the outset, we should note that appeals to a ‘better’ explanation or narrative need not be seen as negating the plurality of perspectives. Indeed, one could say that  Chapter One: Setting the Stage for a Lacanian Displacement  52  such appeals rely on it. For such a view queries the rigid and essentialist temptation to define, for example, what ‘really’ constitutes woman. In its place we find a more fluid category, whose character is always determined by the particularity of context. Fantasy, in other words, is always characterized by specificity of signifier constellations. It resists universalization. The implication, of course, is that incompatibility between fantasies is inevitable, that hegemonic interpretive battles are a natural, and even welcomed, outcome. Such an approach dispenses with ideas which subscribe to the notion that oppression can and should be eradicated once and for all, for such projects entail giving way to the totalitarian temptation of defining in advance all possible substantive evils. Rather, the poststructural psychoanalytic strategy advocates that we deal with each case one by one, and by resisting the temptation to uniformly and arbitrarily apply the rules. And the practical relevance of such observations to environments comprising dispute resolution processes, including those conducted in a court of law, should be obvious. Thus, an ‘ethical’ feminist approach translates into an attitude in which [tihe specificity of individual discourses is always respected, the norms of one never imposed on the study of another. In terms of [the] feminist project, this means that.... it attempts to determine, through analysis, the specific concept of woman that each discourse constructs and the specific actions it directs toward her. The oppressive notion of woman’s oppression’ thus vanishes and is replaced by detailed descriptions of the practices that bring a particular category of woman into being, exclude her, make her visible, invisible, valuable, redundant, dangerous, etc. Vanished, too, is the dream of a total revolution that would deliver woman’s freedom. Dreaming is replaced by intervening one by one in practices that can only limit power, never totally deny it. 81 --  --  But these reconsiderations, which have been prompted by the barrage of critiques launched from within the feminist movement, and which are becoming more and more commonplace in virtually all critical legal movements, still remain firmly within the poststructural problematic. And while such reformulations are important, they, like symptomal readings and fantasy-traversals, are not sufficiently up to the transformative  Chapter One: Setting the Stage for a Lacanian Displacement  53  task. This is because the emphasis is more on the hegemonic and hermeneutic struggles rather on the object-cause of such identity competitions, namely the subject as lack. The benefit, from the perspective of progressive scholars, should not be hard to discern. In a way, we could say that by defining the subject as real, as dehiscent, the deck is stacked in their favour. Why? Well, because it offers us something constant; something which repeatedly defies all our attempts to gentrify it; something which persistently resists all modes of symbolization; something that has the property of invariance, much like Einstein’s theory of relativity exhibits the property of invariance from one spatiotemporal frame to another. In other words, it attempts to overcome the impasse confronting theorists whose models appear to be stuck between two horns: the appeal to the notion of shared values and the notion of a conflict of values. Lacan suggests we dispense with the pre-Kantian idea of a substantive subject and replaces it with the substanceless point of pure apperception, the Cartesian subject in all its abstraction. By regarding the subject as a wound desiring to be healed we have, at last, another basis of commonality: the lack. In a way, this is similar to Rorty’s call to solidarity through shared pain. But not quite for, as Zizek points out, Rorty still associates pain with the breakdown of specific imaginary and symbolic identifications. (LA, 158) So, he ends up with just another variation on the value theme. He misses the real dimension which such identifications attempt to appease, and the possibility of expanding the purview of empathy is thereby lost. In other words, the ability to empathize is still attached to the idea that we must share some common experience, some common symbolic or imaginary identity. And is this not one of the central arguments in support of policies of positive discrimination? 82 That white heterosexual middle class males just do not have the experience to justify genuine empathy with women, with gays, with people of colour, with a welfare recipient? As we have already hinted, the Lacanian approach locates the source of this lack of empathy at the radical level of the real. In this sense, therefore, it has very little to do  Chapter One: Setting the Stage for a Lacanian Displacement  54  with the standard, but valid, counterargument which suggests that, strictly speaking, no experience can ever be identical  --  an argument which is responsible, for example, for the  ongoing minority-propelled phenomenon of feminist movement multi-furcation. Indeed, it goes in the opposite direction: it expands the empathizing group. And what’s more, it explains the otherwise anomalous situation in which a white heterosexual middle class male can and does genuinely empathize and fight for a seemingly unrelated-to-him progressive cause. This is because Lacanian empathy lies on the level of the real. The subject as lack implies a desire to fill that lack, and that is the condition that we can empathize with. We each have our own very personal history; our unique narrative; our specific trajectory of experiences; our own historically contingent series of imaginary and symbolic identifications. But the real lack is the rock that stands firm, the immutable wound that defines us. Empathy can also be conceived in terms of one’s respect for another’s fantasy. We have just seen how each subject’s fantasy is uniquely defined. We can attempt, therefore, an alternative reading of Lacan’ s ethical dictum ‘do not cede your desire’. This would involve recognizing that the contingent nature of one’s own fantasy construction is just one of many ways that our lack can be appeased. We then achieve a certain distance from our fantasy without compromising its crucial role in structuring our lives. We perform a kind of simulated self-immolation such that our fantasy becomes less rigid. And its only in achieving a certain distance from our own fantasy that we can come to empathize with another subject; that we can come to regard another subject’s fantasy with reverence. (LA, 156-157) Now, it is true that the idea of the subject as lack can come across as being unduly depressing and tragic. What remains, therefore, is for us to transform this reactionobservation into a positive theoretical proposition. Do we have to remind ourselves of how disasters and tragedies have a remarkable bonding effect? Is this not related to the  Chapter One: Setting the Stage for a Lacanian Displacement  55  intuition that led Rorty to suggest pain as the foundation for solidarity? So, by heeding our earlier critique of Rorty, all we need do is locate this ‘disaster’, this dehiscence, on the register of the real. In this view, the subject is always already marked by tragedy. And it is this tragic mark that can serve as the only legitimate common denominator among human beings, not some appeal to shared (or conflicting) values  --  an appeal  which operates at the levels of the imaginary and symbolic. Perhaps we can better understand now our earlier statement which made synonymous the redefinition of the subject with the progressive new social movement ethos. Paradoxical as it may sound, the substanceless subject has real clout, a peculiar clout which possesses a vector that can  ethically orient our lives.  The Function of Law: Justice or Appeasement?  83 is, of course, applicable to the legal decisionThe ethics of resisting the lure making process. The lure is comprised of the rules and the institutional and personal biases that frame the issue. We could say that a properly ethical or just decision corresponds to the Lacanian act, the paradoxical manner in which one both follows the  Law (the big Other) and suspends it. It marks a impossibly sharp point of pure undeciclability by which the final link which tethers us to the Other is severed. And it is here that Derrida comes closest to the dimension of the real. For, in discussing his notion ofjustice as aporia, he describes its constitutive paradox, the hallmark of jouissance: [F]or a decision to be just and responsible, it must, in its proper moment if there is one, be both regulated and without regulation: it must conserve the law and also destroy it or suspend it enough to have to reinvent it in each case, rejustify it, at least reinvent it in the reaffirmation and the new and free confirmation of its principle. 84  Chapter One: Setting the Stage for a Lacanian Displacement  56  And, of course, this moment of pure singularity corresponds to the subject as lack which always already was in the past and never is in the present. It is what installs a gap in the substance which can only be retroactively inferred from a structural inconsistency. We could say that the process of legal decision-making, strictly speaking, corresponds to the psychoanalytic process whereby the hysteric is appeased. For the hysterical subject is one whose lack has become exposed and who desperately seeks to be filled. Hence, his search for a master, for someone who will attempt to cover up the real wound with master signiflers. And can we not see here what Zizek has in mind when he talks of the appeasing nature of law? The anxiety we feel in making or awaiting a decision relates not to the distance that separates us from some long lost (Mother-) object with which we seek to merge. Rather, it signals our overproximity to loss itself  --  an overproximity which  tempts us to seek a master by engaging in either the discourse of the master or the discourse of the university. And Law is just such a discourse. From the perspective of scholars who concern themselves with social change in the context of law, the appeasing function of law should not be underestimated. Appeasement corresponds to alienation in the big Other, and its effect is felt from the very moment a (hysterical) subject seeks the services of a lawyer.  And this pacifying effect does not derive simply from the  knowledge that a wrong may be righted, or that one’s interests will be represented, or that justice will be done. Rather, the appeasing effect resides in the very act of transforming one’s status from subject to individual; the act of transcribing one’s complaint into the formal language field of the big Other. In other words, legal pacification has little to do with the pleasure principle which relates to incentives and rewards. It has to do with distancing oneself from the suddenly very proximate nature of one’s empty objet petit a. We conclude with Miller’s account of this feeling:  Chapter One: Setting the Stage for a Lacanian Displacement  57  But there is something more in this shaping of the complaint. While your lawyer filters, posits and formalizes your complaint, you realize that somewhere you are satisfied. In the process of formalization itself, even though nothing has been done to mend your displeasure, which is always there, and causes the whole affair, in some place you are happy, happy because your displeasure has been formalized. Your are happy I may say, despite having infringed the pleasure principle. Therefore you grasp maybe how the shaping of the message, even its legalese ciphering, produces a jouissance, or more accurately an extracted plus-de-jouir, drawn out from displeasure itself through this formalization. 85  On Authority  In returning very briefly to the question of justice in the legal decision-making process, we could perhaps broach the issues of legitimacy and authority. (We have already touched on the issue of justification (S2) as it relates to the decision (Sl) in our section on Lacan’ s mathemes.) Of course, by doing so, we are launching ourselves into the very traditional debate on the nature of law: what ‘is’ law? But we will not even attempt a survey of existing theories of law and how they account for obedience. Rather, the aim of the present exercise is to offer us a glimpse of the way Lacan presents us with an alternative way of conceiving the binding effect of law. In particular, it shows us how his conceptual apparatus, especially as it relates to the real order in general, and the objet  petit a in particular, has an uncanny affinity for paradox. And this peculiar predisposition can assist us in better apprehending paradoxes and inconsistencies. In this sense, we could say that we experience the appeasing effect of Lacan’s own big Other, ie., his theoretical panoply. And the relevance of this conceptual apparatus is, of course, not limited to law, nor to specific subdiscourses of law. Here, for example, we could use our discussion on legal obedience as an excuse to address the (traditionally) vexing question: is international law ‘really’ law? We begin  Chapter One: Setting the Stage for a Lacanian Displacement  58  by noting that the question whether international law is law is phrased in a manner that suggests that it can be answered only after one has arrived at a particular conception of law itself. If, for example, law is conceived primarily in terms of enforcement (ie., in terms of orders backed by realizable threats, whether physical or economic), as John Austin argues, we may get one answer. If, alternatively, law is conceived primarily in terms of criteria of legitimacy and validity (as in a contract bargaining process whose resultant treaties could be said to have an international jurisdiction) such that secondary rules of recognition can be discerned with an eye to settling conflicts between primary 86 we may get another answer. And so on. rules of application, as Hart argues, What the poststructuralist tells us is that lurking behind the term ‘really’ in our question is the essentialist temptation so clearly succumbed to by those belonging to the schools of Natural law (whether in terms of God or Reason) and Positivism (whether in terms of rules or state actors). Such foundationalists subscribe to something inherent, inevitable, and unchangeable in the nature of law. What a Zizekian approach highlights is the affinity of the question ‘what is law?’ with the equally confounding question, ‘what is (transferential) love?’  In both cases we are dealing with the psychoanalytic  phenomenon of transference; and insofar as law is bound up with the concept of transferential authority, it may prove helpful to examine this in more detail. Following Kierkegaard, Zizek specifies the foundation of authority: “the ultimate and only support of a statement of authority is its own act of enunciation.” (ES, 94) More specifically, it tells us that authority which is founded upon punitive threats is not, strictly speaking, authority (ie., symbolic authority), but rather an “agency of brute force: authority proper is at its most radical level always powerless, it is a certain ‘call’ which ‘cannot effectively force us into anything’, and yet, by a kind of inner compulsion, we feel obliged to follow it unconditionally.” (ES, 94)  This is why authority has a  paradoxical flavour to it. On the one hand, we respond to the call of a statement not because of its contents, but because of the authority vested in the enunciator; and on the  Chapter One: Setting the Stage for a Lacanian Displacement  59  other hand, we only accept such authority on the condition that the messenger is made transparent to the message. So where, then, does authority lie? The answer, of course, is in the objet petit a: the empty set constituted by the intersection of the messenger’s personal characteristics (his institutional links, for instance) and the message’s content. It constitutes the object-cause of desire whose void is filled in by fantasy. To conclude, therefore: International law is law insofar as we accept that it has something in it more than itself: the objet petit a of authority.  On the MaterialistlPoststructuralist Opposition  So far we have discussed issues relating to the topics of the subject and ethics from a Lacanian perspective, and we are now moving on to consider the nature of language and its relationship to non-linguistic entities. We will therefore examine in more detail Lacan’s stance in regard to the epistemological and ontological debate as it relates, for example, to the materialism/discourse opposition. But before going on to talk about the specific contribution that psychoanalysis makes in reconceiving this dichotomy, it is perhaps worth reminding ourselves of the traditional debate, with the poststructuralists on one side, and the materialists on the other. The materialist critique of the poststructuralist position points to an undue emphasis on language-games at the expense of concrete power relations. The message of materialists can be conveyed anecdotally: ‘enough of empty words, lets get down to some serious action’. Such calls are common. Indeed, we could risk the generalization that the frequency of such accusations has risen in the wake of the ‘politics of experience’ movement. This is why they command sufficient respect and empathy to often not require detailed justification.  This is not to say that such criticisms are always  Chapter One: Setting the Stage for a Lacanian Displacement  60  unwarranted. Indeed, it sometimes seems that poststructuralists are oblivious to the power of the words they themselves use; or underestimate the rhetorical force of appeals to an ‘external reality’. But what many try to point out is that the proliferation of glib dismissals may harbour the danger of missing the significant poststructural contribution. In other words, at the level of empty criticism, the poststructuralist could just as easily retort that power relations themselves obfuscate the materiality of the signifier. It is, poststructuralists insist, the material nature of court-room language-games which result in very real effects 87 (or, to invert the above anecdotal gibe, as Zizek does, ‘enough of empty acts, lets get down to some serious word-games’). This is why Lacan, in his poststructuralist guise, often referred to books as kilograms of signiflers: to emphasize their materiality:  Power relations are themselves an effect of the structure of the  88 In other words they must be seen as abbreviations of specific signifier signifier. 89 constellations. For purposes of clarity, we have portrayed the debate as highly polarized. Of course, many who engage in this debate find themselves at different points along the spectrum  --  a spectrum whose extremes can be characterized by those who, on the one  hand, wish to establish non-linguistic materiality as the social determinant of the ‘last instant’; and those who, on the other hand, wish to establish discourse as the social determinant of the ‘last instant’. And the relevance to the contemporary debate on the rights discourse should be readily apparent. Are rights determined by a material or  discursive matrix? Do these two extremes not also share a homologous affinity with the polar opposites in the traditional dichotomies of content/form or substance/process? Perhaps we should now consider how Lacan contributes to the debate. At first sight, it may seem that his linguistic forays betray him as a die-hard poststructuralist. Is it not the case that he adds nothing which could rupture the circular nature of our entrapment that he does not assist us in achieving some distance from the entrancing effect of the harmonic system  --  a system defmed by the theoretical pendulum that swings  Chapter One: Setting the Stage for a Lacanian Displacement  61  from one extreme to the other? Our position, of course, compels us to answer in the negative; that Lacan does indeed introduce a crucial displacement whose effect is to transform the hypnotizingly repetitive circle into a more productive spiral. We could even say that Lacan’s own theoretical trajectory outlines this spiral. From his early imaginary-substantive phase, he moved onto his symbolic-structural phase and finally came full ‘spiral’ to his real-paradoxical phase. Lacan’s displacement could also be conceived in terms of the Mobius strip: if we progress far enough on the side of discourse, we end up on the side of ‘external reality’. Or, if we progress far enough on the side of form, we end up on the side of content. He suggests that everything cannot be reduced to discourse; but, at the same time, the real which escapes discourse does not have an a priori status which serves to constrain it. Hence its paradoxical status: the real dimension is both presupposed (jouissance) and posed (objet petit a) by the symbolic order.  In order to more fully appreciate this displacement, we could expose the presupposition that unites the two extreme positions as outlined above. And that is the highly deterministic (in the case of the materialist) or overdeterministic (in the case of the poststructuralist) nature by which the social is conditioned. In other words, they both subscribe to a theoretical model of the universe which is linear and causal, even if the complete network of causes and effects cannot be mapped out in practice. Lacan makes his mark by installing a gap in the causal chain, a gap which is subsequently effaced, and which is responsible for our intuitive sense of free-will and contingency which is always retroactively converted into (over)deterministic necessity. And this gap, which also accounts for the linguist’s version of psychoanalytic castration, is nothing other than the Lacanian subject; the singularity which cannot be tamed by the symbolic order; the ‘missing link’ which pertains to the real order and which never ‘is’ but can only ever be ‘was’ or ‘will have been’.  Chapter One: Setting the Stage for a Lacanian Displacement  62  The paradox, of course, is that though the real order resists and escapes the symbolic and imaginary orders, it constitutes their only support. Signifiers congregate around, and attempt to gentrify, real disruptions of the symbolic surface. These raw pockets of jouissance, then, are what provide the ‘sticky’ substance that accounts for the structural order of the big Other.  It presents us with an answer to the question  (hypothetically) posed by the materialist and addressed to the poststructuralist: if it is indeed true that, due to the radical indeterminacy and openness of our discursive medium, ‘anything can happen’, including the establishment of a more equitable and just society, why is it that ‘anything’ (a just society) does not actually come to pass?  Here, we might comment on the uncanny parallel between psychoanalytic theory and the theory of complex adaptive systems. At the level of the component units (signifiers) and their rules of interaction (metaphor and metonymy), we have an almost infinite range of possibilities  --  a state of potential anarchy. Yet, once we move from the  microscopic to the macroscopic, we find that there is an unmistakable order, which at that level, seems to justify the appeal to such notions as predictability and probability. We are referring, of course, to the phenomenon of emergent behaviour, a theoretically sound and experimentally-verified occurrence which applies to a wide spectrum of activities found in biological systems (as in the theory of evolution), physical systems (as in the transition from the quantum level to the macroscopic level), economic systems, etc.  Now we should, perhaps, pause to consider the reason Lacan is often misconstrued as a (traditional) poststructuralist. What we need to realize is that the real psychoanalytic substance (fouissance) that sustains the symbolic order can be accessed only through the signifier. It is only through a close study of discursive patterns of repetition, inconsistencies, etc., that the discursive structure’s interstitial glue can be grasped. Thus, his prioritization of the signifier, and the symbolic order in general, is in  Chapter One: Setting the Stage for a L.acanian Displacement  63  recognition of the fact that, for instance, a particular signifier constellation is what betrays the presence of jouissance. It is the signifier pattern that points to an object’s subliminal or, alternatively, disgusting status.  (This is also related to Lacan’s concept of  separation.) The line between them is a lot finer than we would suspect and is strictly dependent on the object’s location in the particular culture’s symbolic universe. In other words, how an object gets caught in the symbolic web will determine its status as either a sublime (Freudian) Thing, or a disgusting protuberance.  And its status is always  precarious. The transition from one to the other is what Lacan referred to in his Four  Fundamental Concepts of Psychoanalysis (FC) as the operation of changing the ‘precious gift’ into a ‘gift of shit’. Here, we might think of the ancient Chinese practice of foot binding, or the tribal practice of adorning women with a series of ring necklaces so as to physically extend the neck. Perhaps this indicates to us, as Zizek notes, another form of ideological critique, namely of adopting toward one’s own belief structure a foreign gaze --  an attitude whose effect would be to subvert the usual tendency in which cultural  differences are often taken to indicate the superiority of one over the other rather than the contingency of each. In an effort to further expose the inextricable link between the real and symbolic orders, we may recall our explication of the role of the objet petit a in countering the descriptivist’s epistemological-ontological view. Was that not a clear example of how such a real substanceless object is both presupposed and produced by the symbolic order? Could we not say that it pushes the discursive-poststructuralist/material structuralist debate beyond the symbolic/imaginary opposition and into the paradoxical realm characterized by an inessentially essential (or essentially inessential) object? So how can we re-phrase and re-grasp the Lacanian contribution to the debate? We could simply say that the discourse/materiality split falls within discourse itself. The symbolic order (language, culture), just like the Laclau and Mouffean Social, is traversed  Chapter One: Setting the Stage for a L.acanian Displacement  64  by real antagonisms; and the imaginary order is responsible for reifying the projection of this internal real impediment as an external Other. A final alternative in conceiving the move beyond the poststructuralistlmaterialist snare is to realize how each position subscribes to a teleological model of the world. In Lacanian terms, they both misunderstand the male ‘all’ logic, a logic that even Derrida misses, according to Zizek, when he criticizes Lacan’s famous conclusion that ‘the letter always arrives at its destination’ (ES, 12). In a style homologous to the illusory process of interpellation, each assumes that the addressee (‘external reality’ in the case of the materialist, ‘signifier’ in the case of the poststructuralist) precedes the ideological call. Thus, Lacan problematizes this teleological presupposition and offers us a real alternative: the paradoxical and retroactively contingent creation of a cause.  On Superegoic Repression and the Desire of Rights  How else can we conceive of the Lacanian contribution to legal theory? We could highlight how he offers us a standpoint from which to critique Foucault’s concept of law in a way which makes it relevant from the point of view of scholars interested in social transformation. As we have noted elsewhere, law for Lacan is associated with the big Other. Now, Foucault went to great lengths to point out that the law (and other disciplinary apparatuses), despite its prima facie prohibitory guise, functions to present or  produce the object of desire. In Lacanian terminology, when the split subject looks outward for an object to fill its void, the law (as big Other) provides a means to satisfy that desire. Foucault repeatedly emphasized the productive function of disciplines (discourses of sexuality produce sex) and dismissed a more negative or repressive  Chapter One: Setting the Stage for a Lacanian Displacement function  --  65  an observation which constituted the foundation of his attacks on  psychoanalysis. In taking up this last point, it should be noted that, though his insistence on the productive aspect of regulation did much to change the traditional approach to discourse analysis in which the regulatory object was somehow defined in advance and independently of the discursive process, Foucault also managed to misrepresent the psychoanalytic notion of repression by confusing its two incarnations and by missing the subtlety of the notion he intended to criticize. 90 The first version of repression refers to primal repression, ie., the negation which both founds and splits the subject. It signals the subject’s accession to the symbolic order through the expulsion of the real, making communication possible and laws intelligible. We come now to the second version of repression, the one that Foucault takes aim at in his tirade against psychoanalysis. The primal negation, having made laws conceivable, opens up the possibility of viewing law as either productive or repressive. And in one sense, psychoanalysis (by which we mean both Freudian and Lacanian) would affirm its productive aspect. It is productive, as already mentioned, because it creates a desire targeted at the object being prohibited. But what usually gets missed (most notably by Foucault), is the fact that desire also folds in on itself so that what is produced is not only a desire for the forbidden object, but also a desire not to desire the forbidden object. The psychaonalytic name for the agency presiding over this latter desire is the superego, and it accounts for the feeling of guilt we experience after an act of transgression  --  a phenomenon which is unaccounted for using  the Foucauldian conceptual framework. It is in this sense that law is seen as repressive (from the psychoanalytic perspective) in the second mode of negation. We can see, therefore, the relevance of the dialectic of desire to strategies that aim to effect behavioural modification through legal means. And perhaps we can briefly remark on the relevance of Lacan’s concept of desire to the discourse of rights.  Chapter One: Setting the Stage for a Lacanian Displacement  66  We will not here engage in the traditional debate raging in the critical legal studies literature concerning the progressive potential of the rights discourse. In that debate traditional marxists argue that the form of rights is too strongly imbued with the dominant and individualistic form (of the capitalist mode of production) to serve as a useful tool in bringing about meaningful change.  Taking their cue from current  poststructuralist theories of language and action, post-marxists dismiss the attempt to link rights to material economic conditions ‘in the last instance’ as a profoundly foundationalist gesture.  They argue that marxists undere’stimate the function of  discourse. In this view, the transformation of rights into a progressive instrument is made plausible by creating new alternative equivalential links. While acknowledging the importance of such a discussion from the perspective of a transformative politics in general, our purpose is only to hint at a possible alternative approach to the issue. Here we will have recourse to Lacan’s theory of the dialectic of desire. Marx’s well known critique of the abstract nature of rights focuses on its ideological function, ie., the operation by which underlying inequalities are concealed. As already mentioned, many CLS scholars further push the point home by arguing that rights serve only to propagate the capitalist form of relation. Claude Lefort, however, though acknowledging the need to be clear about the material conditions within which the discourse of rights operates, argues very strongly for their retention. He agrees that there is a danger due to the possibility of conflating two separate ideas: ‘everyone is equal’ and ‘everyone should be equal’. (And it is the job of academics and social critics to keep these two notions separate.) Nevertheless, the danger attached to the absence of rights as empty universals would be far greater. Rights are, he insists, indispensable to our modern notion of democracy because they serve as the empty space from which a critique of existing social relations is made possible in the first place. It is the appeal to a universal which is responsible for the split between power and legitimacy.  Chapter One: Setting the Stage for a 1_acanian Displacement  67  In other words, it is from the point of pure lack (absence of contents such as race, sex, age, etc.) that a critique of differential treatment becomes possible. 91 The stake of the democratic project is to keep this place, the democratic subject (homologous to the Lacanian subject), empty. As soon as we attempt to define the subject by enumerating or codifying its subject positions, we fall into the totalitarian trap. It is in this sense that we can say that it is undesirable to exhaustively present all our rights. A Lacanian caveat in implementing the discourse of rights for progressive purposes, therefore, would be that it might give us the impression that we have found our object(s) of desire: all we have to do is describe them and transcribe them into legal form so that our society may at last be free of conflict. This would constitute a fantasy in need of traversal. 92  Lacan as a Poststructuralist:  Strategies, Power Relations, and Structural  Constraint  What is clear from a Lacanian approach to legal theory, is the relevance and importance of the function of the signifier in concealing a lack or impediment. The significance of discursive (symptomal) analysis stems from the fact that it is the sole means with which we may isolate the real jouissance (as in, for example, the Laclau and Mouffean social antagonism) which structures (and is produced by) the symbolic order (ie., the discursive formation). Discourses must be scrutinized for those coupling signifiers (woman, gay, proletarian) responsible for interdiscursive connectivity and for the transmitted equivalential logics. Ideological and psychoanalytic investigation must then attempt to map out the social psyche in terms of the master signifiers that structure it. In the broadest of terms, this is done by identifying patterns of repetition and  Chapter One: Setting the Stage for a Lacanian Displacement  68  inconsistency in and around the discourses and issues under investigation. In short, psychoanalytic legal analysis is nothing but a version of cultural analysis. What must be brought home is the fact that a psychoanalytic investigation concerns itself not so much with the ‘material’ facts as they ‘actually’ are or happen. Rather, it emphasizes the importance of how such facts are perceived and how they interact with a person’s or society’s symbolic order. Psychoanalysis is thus a social science of signifiers, not of hard facts existing in some ‘external reality’. Poststructuralist psychoanalysts, such as Lacan, are often accused of denying the reality of such things as physical pain and psychic anguish; of not taking seriously the plight of marginalized groups by reducing everything to language games. Such analysis, critics charge, ignores the truth of political dynamics and power relations. Of course, it would be silly to assert that we cannot feel something when we stub our toe unless we can label that experience with an appropriate signifier. What Lacan attempts to point out, however, is that what is important from the perspective of social analysis is how that phenomenal sensation is localized by the symbolic order. There is simply nothing to be gained in engaging in a debate about whether something ‘really’ exists ‘out there’. In other words, what is important are the signifiers that constitute our symbolic universes because it is they that cathect and circumscribe our jouissances. This does not mean that the notion of ‘external reality’ does not serve an important function. It does. It serves as an external reference through which language transforms itself from an open-ended ‘non-all’ order to a closed ‘all’ order. And to seek to establish this ‘external reality’ as it ‘really is’ without the contaminating effects of language-mediation is to engage in the metaphysical quest for an ultimate truth. Thus, critics who dismiss poststructural psychoanalysis for the reason that it reduces objects and relations to signifiers miss the psychoanalytic mark. From the strategic point of view, one is not interested in correspondence theories per Se.  Rather, one is interested in how  Chapter One: Setting the Stage for a Lacanian Displacement  69  representations themselves are formulated through signifier chains, and how those chains link up with other chains in a way which serves to appease our lack. 93  Power Relations  This brings us nicely to the topic of power relations. The usual materialist critique is merely a replay of the language/external reality opposition. Surely, the critics exclaim, poststructuralists’ emphasis on language ignores the very real power relations that imprint any given social milieu. Here again, the poststructuralist could again point out that an emphasis on power relations is not analytically helpful when it comes to strategizing. This is not to say that talking in terms of power relations, or of physical and formal (political, legal, etc.) structures are not useful per Se; that they cannot serve as useful concepts in explaining how a range of ideas or outcomes can be confined to a certain range of possibilities. Rather, from the poststructural point of view the danger is the possible and frequent elision exhibited by the passage from an object’s or relation’s characteristics to an object or relational essentialism. In other words the signfiers become fixed to an external reality, and the opportunity for formulating alternative equivalential logics is missed. Explanations which rely heavily on concepts such as ‘power relations’ and ‘structural constraints’ should, in this view, be taken not as ‘things-in-themselves’, but rather as abbreviations of specific signifier constellations. Here, we will not take up the topic of power relations in detail, for we shall discuss them more thoroughly in later chapters. We will only mention that Laclau and Mouffe’ s typology of relations (in terms of subordination, domination, and antagonisms) reveal an insightful link between the traditional poststructural approach to power relations and what might be conceived as a Lacanian poststructural approach to power relations.  Chapter One: Setting the Stage for a Lacanian Displacement  70  Structural Constraint  How can we make structural constraint relevant to law? In a first approach, we could cite examples of structural constraint which occur in the domain of law, for example, the time for legal argument, rules for admission of evidence (eg., native narrative histories, sexual assault admissibility rules), rules regarding intervening arguments. But, we could also tie the issue of structural constraint to interdiscursive connectivity. Law can be conceived as a site of political transformation, a site of ideological confluence, or as itself a source of ideologies. For present purposes, we could perhaps use the idea of scripts to describe law. We have a set of rule-like scripts whose variables are combined in a specific fashion and whose outcomes can have physical and distributional consequences ranging from the minimal to the extreme. These might include voting or citizenship eligibility, incarceration, damages, or medical and other benefits for couples. Thus, the legal process involves the transcription of facts into legally recognizable (client-favourable) phraseology. In tort law, for example, facts may be used to bolster one or more factors going to the standard of care tests of what a reasonable person ought to have foreseen, or of what a reasonable person ought to have done once armed with that foresight. The importance of legal definitions and scripts can be readily seen in the case of marital rape. Until recently, and in many jurisdictions yet, the legal concepts of ‘married couple’ and ‘rape’ were considered incompatible or mutually exclusive to the point of not recognizing the category of ‘marital rape’. The impact on women in traditionally conceived couples is not too hard to imagine. The impact on individuals as members of same-sex couples is more complicated, but real nevertheless. We can now attempt to address more directly the issue of structural constraint. We could say, perhaps, that the constraint of scripts (rules, interpretations, judgments, etc.) is a function of repetition; that to the extent that a specific behaviour (act or  Chapter One: Setting the Stage for a Lacanian Displacement  71  statement) is repeated, the system with which such behaviour is affiliated is marked by a certain rigidity. And to the extent that such repetition is normalized, as in the judicial practice of precedent, we have ‘legislated’ constraint (and thus legitimation). In other words, legal principles can be said to constrain to the degree that there is a clear dividing line between permissible and impermissible signifier links. This explains, for example, the crucial importance of setting up the facts even before legal argument begins. It also explains the difficulty with which new equivalential links may be introduced, such as between ‘person’ and ‘woman’/’person of colour’; or between ‘couple’ and ‘gay’!’lesbian’; or between ‘family’ and ‘homosexuality’; or, in the context of religious institutions, between ‘priest’ and ‘woman’/’gay’; or  ,  in the context of political  institutions, between ‘rights’ and ‘relationality’/’ state intervention’. It is clear, therefore, that the supreme ideological gesture invoked by the concept of ‘constraint’ (and its ‘henchconcepts’ of precedent or citation) involves its performative force  --  a force which gives it an air of inevitability. As is the case with any interpellative  act, we assume a symbolic mandate not because we recognize ourselves in the call but because our very act of recognition retroactively posits a symbolic mandate to be assumed. In the context of the disciplines of sexuality, Judith Butler, invokes Den-ida’s concept of citation, to make a similar point: “[I]f a subject comes to be through a subjection to the norms of sex, can we read that ‘assumption’ as precisely a modality of this kind of citationality? In other words, the norm of sex takes hold to the extent that it is ‘cited’ as such a norm, but it also derives its power through the citations it compels.” 94 From a strategic point of view, therefore, we may wonder how we might produce a kind of Derridean iteration, ie., how we might introduce a slight displacement in the citational practice so as to effect a more pronounced disruption of an intended closure. At the intersection of law and sexuality, Butler inserts the following question: “What would it mean to ‘cite’ the law to produce it differently, to ‘cite’ the law in order to reiterate and  Chapter One: Setting the Stage for a Lacanian Displacement  72  coopt its power, to expose the heterosexual matrix and to displace the effect of 95 necessity?” Consideration of such a project should not be taken as a simplistic affront to notions of predictability and legitimation, and a corresponding apotheosis of uncertainty and wild abandon. Rather, it should be taken to problematize practices whose legitimate existence depends heavily on repetition and convention. Such strategies are meant to create the space for new mental maneuvers and to give confidence in exploring new modes of thinking.  The Lacanian conception of the subject gives us a powerful  explanatory model which accounts for strong institutional resistance to change. It tells us that such traditionally rigid symbolic orders as those of the Church and Law are a possible (but not inevitable) consequence of the subject’s and society’s split. Institutional opposition to new ideas is related to the anxiety experienced when we come too close to the objet petit a, ie., when we begin to sense the utter contingency and meaninglessness of our existence, and that things could just as well have been otherwise.  The above examination of the concepts of ‘power relations’ and ‘structural constraint’ are not, of course, meant to solve difficult issues, to provide ready-made answers to troubling questions. Rather, they are meant to permit a reconceptualization of the terrain on which debates take place. So, when a progressive lawyer is fighting a custody battle on behalf of a lesbian mother, the question remains: does one risk entrenching the status quo by arguing on the basis of (and hence citingllegitimating) the ‘accepted’ factor in determining the best interests of the child, namely, that the child will grow up straight? Or, does one attempt to insert a displacement in the well-worn tracks of this legal doctrine and thus risk complete derailment? The answer is that strategy will, as always, depend on such factors as the client’s disposition, the specific judge hearing the case, and so on. 96 The point, however, from a Lacanian perspective, is to understand the mechanics of identification and the function of law in appeasing society’s dehiscence.  Chapter One: Setting the Stage for a L.acanian Displacement  73  It helps us recognize that, though practices usually do constrain, they need not do so. On the one hand, it keeps us on our toes such that we may grasp an opportunity for change when it arises (as opposed to resign ourselves to ‘fate’ and ‘inevitability’). And on the other hand, it jolts us from complacency; in other words, it shows us how signifying practices can have profound effects on people caught in its cracks and folds.  Chapter One: Setting the Stage for a Lacanian Displacement  74  Conclusion  The purpose of this chapter was to serve as an introduction to some basic Lacanian ideas, especially those pertaining to a new ethics of subjecthood; and to briefly consider their potential value in reconceiving legal theory in the context of a transformative politics. It is acknowledged that some legal concepts were dealt with in less detail than others, and that some concepts were not even mentioned. However, we intend to deepen our psychoanalytic sensibility vis-a-vis legal and political theory in the following chapters. The idea was to introduce a new perspective so as to reformulate current theoretical impasses and paradoxes. In a way the aim was to introduce new floating signifiers so as to facilitate a disruption of well-worn thought patterns and create an opportunity for new meanings, new connections, creative capitonnages. As such, the message that psychoanalysis has to offer is that a progressive strategy would be more effective if its energy were directed less at attempting to control specific content and more at attempting to foster an attitude of deferral or Derridean djfferance. In other words, good intentions and the promotion of ‘better values’ are no longer sufficient for progressive change. That is not to say, however, that content is of no concern. It certainly has a very important role to play in fostering this attitude of reflective deferral; and equal and fair access is an important issue to resolve in the context of an increasingly information-based society. Nevertheless, there is an important ethical shift to be made away from simply countering certain values with other values, toward a response-oriented approach in which certain values are questioned/subverted without aggressive 7 substitution7  To conclude, we reiterate that the object of our thesis is to begin to rethink and rearticulate traditional problems and concepts (both from a theoretical and strategic-  Chapter One: Setting the Stage for a Lacanian Displacement  75  practical perspective ) through a Lacanian lens. The important message we wish to 98 convey is the danger inherent in any approach which subscribes to the belief that it is possible to achieve a (politico-legal) totality devoid of (ant)agonism, whether on the level of the social or on the level of the individual. In this respect and in following Chantal Mouffe, it is perhaps worth remembering the etymology of the word ‘politics’: polis (which evokes the idea of commonality, as in the subject as lack), and polemos (which evokes the idea of (ant)agonism and hegemonic struggle).  Chapter One: Setting the Stage for a Lacanian Displacement  76  Notes to Chapter One  Lacau, Jacques, The Four Fundamental Concepts of Psychoanalysis, Jacques-Alain Miller, ed., Alan 1 Sheridan, trans. (New York: W.W. Norton, 1978) at 263. Chomsky, Noam, ‘An Interview’ (1989) Radical Philosophy 31 at 32. 2 Hunt, Alan, Explorations of Law and Society: Towards a Constitutive Theory of Law (London: 3 Routledge, 1993). Zizek, Slavoj, ‘Beyond Discourse Analysis’ in Ernesto Laclau, New Reflections on the Revolution of Our 4 Thne (London, Verso, 1990) at 254. The remedy, however, is not to be viewed as a panacea, of making things ‘fine and dandy’; but rather 5 more in the style of ‘the wound is healed only by the spear that smote you’. (TN, 165) It entails recognizing that, though language is responsible for the subject’s split (in the same sense that society is split), it is also our only source of consolation. llere, we might mark the confluence of social and physical sciences from the perspective of complexity 6 (anti-chaos) theory. The homologous nature of psychoanalysis and complexity is easy to spot. Psychoanalytic social theory deals with well defined units (signiflers) which interact in a manner which can be described using a set of rules: metaphor and metonymy. It is the interaction of large numbers of such units in accordance with certain rules that gives rise to the phenomenon of structured, or ordered, emergence (a counterintuitive, but in the end reconcilable, notion when viewed against the background of the second law of thermodynamics). Complexity theory has been used to explain such patterned behaviour as that of a flock of birds negotiating an obstacle in their line of flight or the emergence of mind from a network of neurons. The question is: to what extent can such ideas be transferred to the social domain. The idea seems to be at least plausible given the recent efforts at the Santa Fe Institute (the hub of complexity theory) to build computer software specifically with social and political theorists/strategists in mind. The general idea is that one need not predict outcomes with exact specificity; that one can learn a great deal from patterns and forms, as in the study of weather patterns in meteorology. Thus, notions of strange attractors and the Lacanian objet petit a could be conceived as mathemes which permit an investigation into the limits of theory. But in what sense can we say that the science of complexity alters our usual conception of science? Here, we could, perhaps, refer to Darwin’s theory of evolution. We could say that, beginning with specific starting states and rules of interrelation, anti-chaos theory shows us that, for complex adaptive systems, the space of possible steady-state solutions/final outcomes is, in contrast to standard linear systems, drastically reduced. This is why the standard Darwinian model must be revised. For example, starting with 200,000 bulbs (or genes), each connected to any two others with a random relational rule, we end up with around 320 final states in a very short period of time. (This is remarkably close to the approximately 250 types of cells in the human body: liver, kidney, heart, etc.) According to Darwin’s theory, we would need a time period of the order of the universe in order to pass through the entire space of possibilities (subjecting each to the principle of natural selection) forecast by simple linear combinatorial or permutational configurations. A modified version of his theory, therefore, would retain the principle of natural selection, but it would be seen to act on a significantly reduced set of possible final states. It is worth noting again that the specific characteristics of the long-term final states cannot be predicted in their particularity. Investigating the limits of theory would, of course, involve questioning more precisely the nature of such predictions and their implicit boundaries. mis difference in emphasis is not at all meant to present the two approaches as mutually exclusive. 7 Indeed, we will argue, toward the end of this chapter, that there is room for a Lacanian poststructuralism. Rather, it is meant to foster a conception of psychoanalytic theory as an almost inevitable consequence of a more engaging examination of concepts within postmodernism)poststructuralism itself. This difference in emphasis can be seen, first, in poststructuralism’s preoccupation with the idea that meaning is always overdetermined or intertextual, that what one says always either is in excess or falls short of what one intends to say, that what one means to say is always subverted by a negative supplement; whereas psychoanalysis is more concerned with the process by which the slippage of the signified under the signifier is halted (through the process of capitonnage). Second, poststructuralism often works with the assumption that the juxtaposition of intended meaning with its exposed negative supplement is sufficient for the effect of subversion to take place. In other words, there is an implicit subscription to a rationalist model of the world. Psychoanalysis problematizes this. Third, psychoanalysis exposes the somewhat  Chapter One: Setting the Stage for a Lacanian Displacement  77  ‘safe’ poststructuralist position that ‘there is no metalanguage’ as itself a metaphysical symptom. Rather than take ‘there is no metalanguage’ to mean that there is no pure transparent object language (ie., a third medium through which an ‘external reality’ can be apprehended without distortion), psychoanalysis prefers the maxim to be interpreted as indicating that there is nothing but object language specifically, the language of the objet petit a. (SO, 158) Fourth, poststructuralism construes the subject as a collection of subject positions, whereas psychoanalysis construes it as a lack. Miller, Jacques-Alain, ‘Duty and the Drives’ (1992) 6(1/2) Newsletter of the Freudian Field 5 at 5-6. 8 1t is in this sense that psychoanalysts can be viewed as information, or social, engineers. This view also 9 provides us with a hint as to why the issue of ethics figures prominently in his theoretical expositions. It could be construed as analogous to the ethical considerations that arise in the case of genetic engineering. ’The big Other refers to the symbolic order which operates in the register of language-culture (signifiers) 10 and is often embodied in (though can never be reduced to) an authority figure (eg., God, father/mother, etc.) or institution (eg., the Church, Law, etc.), or even a collection of individuals representing a community. , of course, implies an alternative ethics. More specifically, it implies an ethics of the real, a topic 5 ll’j’h,j which we will be examining in more detail later. Freud, Sigmund, Civilization and its Discontents, James Strachey, trans. (New York: W.W. Norton, 12 1961). Marcuse, Herbert, Eros and Civilization (New York: Vintage, 1962). 13 Fromm, Erich, The Crisis of Psychoanalysis: Essays on Freud, Marx and Social Psychology (New 14 York: Holt, Rinehart, Winston, 1970). Freud, S, Totem and Taboo: Resemblances between the Psychic Lives ofSavages and Neurotics, A. A. 15 Brill, trans. (New York: Vintage Books, 1946). See also West, Robin, ‘Law, Rights, and Other Totemic Illusions: Legal Liberalism and Freud’s Theory of the Rule of Law’ (1986) 134 University of Pennsylvania Law Review 817 where it is argued that Freud’s naturalistic version of the Rule of Law provides a sounder defence of legal liberalism than those offered by such theorists as Owen Fiss, Lawrence Tribe, and Ronald Dworkin. Smith, 3. C, The Neurotic Foundations ofSocial Order (New York: New York University Press, 1990). t6 Schoenfeld, C. G., ‘The Origins of Law: A Psychoanalytic Interpretation’ (1992) 20(3) Journal of 17 Psychiatry and Law 351. JJ&j at 371. 18 As has been pointed out by 3.-A. Miller, the replacement does not come about without a certain 19 remainder: the real (superegoic) father who incites us to jouissance. And, of course, the tripartite classification of the father has a homologous affinity with the triad need-demand-desire. Kaplan, Leonard V., and Robert D. Miller, ‘On psychiatry and its Disavowal of Mind: Legal and 20 Cultural Implications’ (1991)19(3/4) Journal of Psychiatry and Law 237. Lawrence III, Charles R., ‘The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism’ 21 (1987) 39 Stanford Law Review 317 at 324. Sk, Barbara, ‘Psychoanalysis: In Dreams Begin Responsibilities’ (1991) 38 UCLA Law Review 1483. 22 IbkL at 1503. pjid. at 1519, quoting Schafran, ‘Gender and Justice: Florida and the Nation’ (1990)42 Fl. L. Rev. 181 24 at 186 and n.18. Sheleff, Leon Shaskolsky, ‘The Illusions of Law Psychoanalysis and Jurisprudence in Historical 25 Perspective’ (1986) 9(2) International Journal of Law and Psychiatry 143 at 144. Frank, Jerome, Law and the Modern Mind (Garden City: Doubleday, 1963 [orig. 1930]). Also by 26 Jerome Frank: Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton University Press, 1949). Sheleff, supra at 148. 27 Sheleff, supra at 148. 28 Sheleff, supra at 149, quoting Frank, Jerome, Law and the Modern Mind, supra at 116. 29 Robinson, Edward, Law and the Lawyers (New York: MacMillan, 1935). 30 Sheleff, supra at 154, quoting Robinson, Edward, Law and the Lawyers (New York: MacMillan, 1935) 31 at 72. Ehrenzweig, Albert, Psychoanalytic Jurisprudence: On Ethics, Aesthetics and ‘Law’ On Crime, Tort, 32 and Procedure (Dobbs Ferry: Oceana, 1972). Schoenfeld, C. G., Psychoanalysis and the Law (Springfield, Ill.: Charles C. Thomas, 1973). 33 —  --  --  Chapter One: Setting the Stage for a Lacanian Displacement  78  Sheleff, supra at 157. 34 35 David S., ‘Lacan’s Law and Ours’ (1993) 16(4) Legal Studies Forum 421; Caudill, David S., Caudill, ‘Lacan and Legal L.anguage: Meanings in the Gaps, Gaps in the Meanings’ (1992) 3(2) Law and Critique 169; Caudill, David S., ‘Freud and Critical Legal Studies: Contours of a Radical Socio-Legal Psychoanalysis’ (1991)66(3) Indiana Law Journal 651. As Lacan says (and remembering that the big Other is the locus of the signifier): 36 Any statement of authority has no other guarantee than its very enunciation, and it is pointless for it to seek it in another signifier, which could not appear outside the locus in any way. Which is what I mean when I say that no metalanguage can be spoken, or, more aphoristically, that there is no Other of the Other. And when the Legislator (he who claims to lay down the Law) presents himself to fill the gap, he does so as an impostor. But there is nothing false about the Law itself, or about him who assumes its authority. (E, 310-311) Caudill, ‘Lacan and Legal Language’, supra at 210. 37 38 for example, his statement that “[wibile one may accuse Lacan of reducing everything to language, See, the notion of language is at the same time expanded to include, or become, structure itself’: Caudill, ‘Lacan’s Law and Ours’, supra at 427. In other words, according to Caudill, everything is coextensive with structure. He thus ignores the critical dimension of the real order’s jouissance which both escapes and sustains that structure. Salecl, Renata, ‘Crime as a Mode of Subjectivization: Lacan and the Law’ (1993) 4(1) Law and Critique 39 3. Butler, Judith, Bodies That Matter (New York: Routledge, 1993). And Cornell, Drucilla, 40 Transformations (New York: Routledge, 1993). Perhaps we could view a small group of scholars as an exception to this sweeping statement. Slavoj 41 Zizek, Ernesto Laclau, Chantal Mouffe, Renata Saleci, and Joan Copjec all address issues of political philosophy, including rights, the democratic subject, and social laws. So, inasmuch as these issues also cut across the legal discourse, we should consider them as having preempted, even laid the groundwork for, a more direct Lacanian problematization of the law. Known invariably as the master signifier, point de capiton, or pure signifier. It denotes the sigrnfiers 42 which structure our symbolic universes (the big Other, the symbolic order). This signifier denotes the chains of knowledge that are structured by the master signifiers. 43 The split subject; the subject as lack. 44 The Lacanian objet petit a, the surpiusjouissance, or plus-de-jouir (named after Marx’s surplus value). 45 Cf. Bracher, Mark, Lacan, Discourse, and Social Change (Ithaca: Cornell University Press, 1993). A brief description of Lacan’s discourse types appears in chapter two. 47 See, for example, Smith, 3. C., D. Gelbart, and D. Graham, ‘Building Expert Systems In Case-based 48 Reasoning’ (1992) 4(2) Expert Systems with Applications; and Gelbart, Daphne, and J. C. Smith, ‘Towards Combining Automated Text Retrieval and Case-Based Expert Legal Advice’ (1992) 1(2) Law Technology Journal 19. As we have already mentioned, court judgments fall within the discourse of the university (In Lacanian mathemes, S2IS 1); however, they will sometimes show characteristics of the master discourse in which master signifiers appear on the ‘surface’ of the text (S1I$). This is probably because of the intimation of ‘superiority’ and its correlative ‘derogation’ in the prefix 49 ‘false’. Catherine MacKiunon and Andrea Dworkin have been the most viciously criticized for their use of the term in the context of feminist legal discourse and comparative cultural studies. However, the more benevolent (naive?) user of the term generally intends the word more in the sense of retrospective enlightenment or even moral relativism. This category would also include those individuals who may not feel happy about their actions, but being 50 subject to a ‘higher’ principle, must nevertheless continue to act the way they do. Tbis is meant on a level akin to the present teachings in theoretical physics among whose most startling 51 contributions since the turn of the century is the Heisenberg Uncertainty Principle. Thus, for example, the velocity and position of an electron cannot simultaneously be known in principle. In other words, on the strictest level of analysis, certainty is unattainable. We are left with only possibilities and probabilities --an irreducible undecidability.  Chapter One: Setting the Stage for a Lacanian Displacement  79  52 radical contingency of naming implies an irreducible gap between the [Lacanian] real and modes of ”The its symbolization: a certain historical constellation can be symbolized in different ways; the real itself contains no necessary mode of its symbolization.” (SO, 97) It is because the real itself offers no support for a direct symbolization of it because every symbolization is in the last resort contingent that the only way the experience of a given historic reality can achieve its unity is through the agency of a signifier, through reference to a ‘pure’ signifier. It is not the real object which guarantees as the point of reference the unity and identity of a certain ideological experience on the contrary, it is the reference to a ‘pure’ signifier which gives unity and identity to our experience of historical reality itself. Historical reality is of course always symbolized; the way we experience it is always mediated through different modes of symbolization: all Lacan adds to this phenomenological common wisdom is the fact that the unity of a given ‘experience of meaning’, itself the horizon of an ideological field of meaning, is supported by some ‘pure’, meaningless ‘signifier without the signified’. (SO, 97) --  --  —  As Zizek notes, this is identical to the Derndean process by which elements are constantly marked and 53 re-marked, whether in the realm of drawing (figure and ground), music (motif and accompaniment), film (objective and subjective), etc. (EP, 76-78) We can understand, therefore, why Lacan modified Saussure’s exemplification of the relationship 54 between signifier and signified from [‘tree’]/[image of tree] to [‘ladies’-’gents’]![image of two identical and thus indistinguishable (on the level of the imaginary-phenomenal) doors]. ie., ‘something in it (ie., the object being referred to the objet peril a) more that itself (the object as a 55 (temporary) bundle of positive properties)’ Altematively referred to as rigid designator, point de capiton, master signifier, pure signifier. The point 56 de capiron or pure signifier denotes a signifier without a signified: “the point de capiton is... the word which, as a word, on the level of the signifier itself, unifies [quilts] a given field, constitutes its identity: it is, so to speak, the word to which ‘things’ themselves refer to recognize themselves in their unity.” (SO, 9596) The process by which a field is unified is called capitonnage. Unless, of course, I am directly engaged in a very principled and pedantic discourse addressing the very question of meaning. A long answer involves a detour through Lacan’s graph of desire a detour which we will forgo for 58 now. However, for purposes of completion, we include Zizek’s rendition of it in the Appendix. 0ne might wonder what would happen if, for some reason, the big Other suddenly revoked its guarantee. 59 The answer?: An experience of obscene disgust and horror. Lacan has an exact term fur this ‘revocation’: separation (FC, 213) It refers to the separation between the object’s symbolic identification (SI) reality and the objet petit a the real. As an illustration of how this experience may come about it is sufficient to recollect the scene in James Cameron’s Aliens, in which the protagonists are marching down a corridor in a former colony looking for survivors when, suddenly, the surrounding walls begin to undulate. It thus betrays its status as the inside of a living alien. The horror corresponds to the separation between the symbolic identity as ‘corridor’ and the object to which it refers. Similarly, the final scene in Chaplin’s City Lights stages a separation when the flower girl’s identification of the generous person as ‘prince charming’ collapses into a disgusting ‘tramp’. (ES, 1-9) Using the example of ‘democracy’ as a master signifier, Zizek elaborates at length: 60 —  --  .  —  --  —  [Tihe essentialist illusion consists in the belief that it is possible to determine a definite cluster of features, of positive properties, however minimal, which defines the permanent essence of ‘democracy’ and similar terms every phenomenon which pretends to be classified as ‘democratic’ should fulfill the condition of possessing this cluster of features. In contrast to this ‘essentialist illusion’, Laclau’s anti-essentialism compels us to conclude that it is impossible to define any such essence, any cluster of positive properties which would remain the same in ‘all possible worlds’ in all counterfactual situations. In the last resort, the only way to define ‘democracy’ is to say that it contains all political movements and organizations which legitimize, designate themselves as ‘democratic’; the only way to define ‘Marxism’ is to say that this term designates all —  —  Chapter One: Setting the Stage for a Lacanian Displacement  80  movements and theories which legitimize themselves through reference to Marx, and so on. In other words, the only possible definition of an object in its identity is that this is the object which is always designated by the same signifier tied to the same signifier. It is the signifier which constitutes the kernel of the olect’s ‘identity’. Let us return again to ‘democracy’: is there on the level of positive, descriptive features really anything in common between the liberal-individualist notion of democracy and the real-socialist theory, according to which the basic feature of ‘real democracy’ is the leading role of the Party representing the true interests of the people and thus assuring their effective rule? Here we should not be misled by the obvious but false solution that the real socialist notion of democracy is simply wrong, degenerated, a kind of perverse travesty of true democracy in the final analysis, ‘democracy’ is defined not by the positive content of this notion (its signified) but only by its positional-relational identity by its opposition, its differential relation to ‘non-democratic’ whereas the concrete content can vary in the extreme: to mutual exclusion (for real socialist Marxists, the term ‘democratic’ designates the very phenomenon which, for a traditional liberalist, are the embodiment of anti-democratic totalitarianism). (SO, 98-99) --  --  --  -  --  --  --  l5 6 , fli,j of course, is analogous to the psychoanalytic situation in which the analyst serves as guarantor of meaning, ie., as ‘subject supposed to know’. Lacan’s concepts of separation and symbolic order can also be used to explain the phenomenon of ‘losing 62 face’ (ie., when the identity of someone, whose real person was attached to a particular SI as in ‘honourable’, ‘respected’, ‘trustworthy’, etc is put into question), Thus, the more rigid the symbolic order (repository of S is), the more necessary it is to attempt to conduct oneself in the company of others in a manner which will ‘save face’. The rigidity of the Japanese big Other, for example, explains why ‘saving face’ (ie., the staving off of the social vertigo experienced when one discovers that someone is no longer the person whom you thought they were) is so important in the social discourse. (ES, 63, note 17) Here we may think of the examples of a person of colour who makes a decision to go to a particular law 63 school based on its race-discrimination policies; or of a person who attempts to enumerate the failures of another’s partner in a bid to convince him/her to abandon him/her. Alternatively, we could recall Fetyukovitch’s famous speech as counsel for Dmitri Karamazov in Dostoyevsky’s The Brothers Karamazov. Did he not repeatedly point out how an argument can cut both ways? In the context of pornography we could refer to a case in which the argument being advanced emphasized its harm so as to distinguish it from its competing definition of speech, the latter of which is, of course, protected by the first amendment. As the Hudnut case [American Booksellers Association v. Hudnut 771 F. 2d at 323 (7th Cire. 1985)] showed, such evidence can be turned on its head: “[T]he court held that pornography’s importance as speech can be measured by its effectiveness in doing the harm that it does”: Catherine MacKinnon, ‘Pornography as Defamation and Discrimination’ (1991) 71 Boston University Law Review 793 at 812. See, for example, Gabel, Peter, ‘The Phenomenology of Rights-Consciousness and the Pact of the 64 Withdrawn Selves’ (1984)62 Texas Law Review 1563. The paradigm, of course, is Kafka’s Joseph K. in The Trial. In that case, the victim of the bureaucracy65 gone-awry also persists in searching for some meaning to his arrest; or else he persists in believing that rational argument can convince the State of the absurdity of the situation. The acute sensitivity to the irreducible contingency in the generation of meaning and its accompanying feeling of arbitrariness is, of course, very relevant to the plight of the Jewish people during the second world war and depicted so poignantly by Steven Spielberg in &hindler’r List. Rorty approaches this idea when be states that solidarity should be conceived as “the ability to see more and more traditional differences (of tribe, religion, race, custom, and the like) as unimportant when compared with similarities with respect to pain and humiliation” (Rorly, Richard, Contingency, frony, Solidarity (Cambridge: CUP, 1989) at 192) as quoted in Saleci, Renata, ‘Cogito, its Rights and Fantasy’ (1992) 9(2/3) American Journal of Semiotics 105 at 115. However, as Saleci points out, he still remains firmly within the imaginary/symbolic problematic by subscribing to a clear split between the public (bazaar) and the private (club). The appeal to pure form, --  —  Chapter One: Setting the Stage for a Lacanian Displacement  81  however, does not come off without a certain pathological remainder: Saleci, Renata, ‘Woman as Symptom of Rights’ (1993) 12(2) Topoi 89 at 93-94. 67 for example, Hutchinson, Allan, Dwelling on the Threshold (Toronto: Sweet & Maxwell, 1988). S, Jt is in this sense that the Alien trilogy can be read as an essay on the Lacanian subject. In the Ridley 68 Scott (Alien) and James Cameron (Aliens) versions we see how the identity of lieutenant Ripley (Sigouniey Weaver), or of the community, is consolidated by its opposition to an external alien. In David Fincher’s , however, we see in the final scene how this foreign substance is actually within the subject herself. 3 Alien The parallel to traditional mythic narratives describing the hero’s trials and tribulations in his bid to slay the monster should be apparent. The external monster to be killed is merely the positivization of the ‘internal’ monster, ie., our own internal blockage. Here, the fantasy consists in the belief that the eradication of the external impediment will bring things to a euphoric state of bliss. (See also So, 78-79, and TN, 275, note 32.) Md this is why it is a bit worrisome when, in the context of the environmental movement, we hear 69 people talk of a return to a fully-balanced, dynamically interconnective, wholesome, relational state of the earth devoid of conflict (as if this were possible). If one is not careful, this can quickly turn into a recipe for totalitarianism. Jn the Nazi-Jew scenario, this would, in effect, entail recognizing the Jew as ourselves. 70 Cf. the hysterical Mary in Rossetti’s painting ‘Ecce Ancilla Domini’, or the hystericization of Christ in 71 Scorsese’s ‘The Last Temptation of Christ’. (SO, 114) Both subjects ask the same question: ‘Why me?’ Cf. Shakespeare’s Hamlet in which the imposed mandate (by the ghost of Hamlet’s father) to avenge his 72 father’s death is subverted by the supplementary instruction not to harm his mother. It is she, therefore, who triggers, for Hamlet, the Che Vuoi 9 (SO, 120) An important caveat: The usual defmition of fantasy (‘an imagined scenario representing the realization of desire’) is... somewhat misleading, or at least ambiguous: in the fantasy-scene the desire is not fulfilled, ‘satisfied’, but constituted (given its objects, and so on) through fantasy, we learn ‘how to desire’. In this intermediate position lies the paradox of fantasy: it is the frame co-ordinatiug our desire, but at the same time a defence against ‘Che vuoi?’, a screen concealing the gap, the abyss of the desire of the Other. Sharpening the paradox to its utmost to tautology we could say that desire itsefis a defence against desire: the desire structured through fantasy is a defence against the desire of the Other, against this ‘pure’ trans-phantasmic desire (ie., the ‘death drive’ in its pure form). We can now see why the maxim of psychoanalytic ethics as formulated by Lacan (‘not to give wy on one’s desire’) coincides with the closing moment of the psychoanalytic process, the ‘going through the fantasy’: the desire with regard to which we must not ‘give way’ is not the desire supported by fantasy but the desire of the Other beyond fantasy. ‘Not to give way on desire’ implies a radical renunciation of all the richness of desires based upon fantasy-scenarios. In the psychoanalytic process, this desire of the Other assumes the form of the analysis’s desire: the analysand tries at first to evade its abyss by means of transference that is, by means of offering himself as the object of the analyst’s love; the ‘dissolution of transference’ takes place when the analysand renounces filling out the void, the lack in the Other. (SO, 118) --  —  —  --  tAnd] how does an empirical, positively given object become an object of desire; how does it begin to contain some X, some unknown quality, something which is ‘in it more than it’ and makes it worthy of our desire? By entering the framework of fantasy, by being included in a fantasy-scene which gives consistency to the subject’s desire. (SO, 119) 74 could also add that the traversal of fantasy is not a one off thing. It requires the hard work of We repeated traversals, ie., to show in as many ways possible how our fantasy is a contingent formation. In this sense, we could say that Zizek’s work constitutes an attempt to take philosopher-theoreticians through their own fantasy of subject construction. Could we not view his work as just so many different ways to traverse our fantasy vis-a-vis the subject? See Appendix. 75  Chapter One: Setting the Stage for a L.acanian Displacement  82  Zizek illustrates this process by referring to the paradigmatic Jewish case: 76 To exemplify this necessity of supplementing the analysis of discourse with the logic of enjoyment we have only to look again at the special case of ideology, which is perhaps the purest incarnation of ideology as such: anti-semitism. To put it bluntly: ‘Society doesn’t exist’, and the Jew is its symptom. [In other words, “the stake of social ideological fantasy is to construct a vision of society which does exist, a society which is not split by an antagonistic division [ie., the lack or inconsistency of the big Other], a society in which the relation between its parts is organic, complementary.” (SO, 126) “The notion of social fantasy is therefore a necessary counterpart to the concept of antagonism [the real jouissance that resists symbolizationi: fantasy is precisely the way the antagonistic fissure [the lack of the big Other] is masked... The thesis of L.aclau and Mouffe that ‘Society doesn’t exist’, that the Social is always an inconsistent field structured around a constitutive impossibility, traversed by a central ‘autagonism’...[iinphies the necessary failure of every interpellation/identification]” (SO, 126-127)1  -  [VIJe can articulate another formula of the basic procedure of the ‘crIticism of ideology’, supplementing the one given above: to detect, in a given ideological edifice, the element whicb represents within it its own impossibility. Society is not prevented from achieving its full identity because of Jews: it is prevented by its own antagonistic nature, by its own immanent blockage, and it ‘projects’ this internal negativity into the figure of the ‘Jew’. In other words, what is excluded from the Symbolic (from the frame of corporatist socio-symbolic order) returns in the real as a paranoid construction of the ‘Jew’. We can also see, now how ‘going through’ the social fantasy is likewise correlative to identification with the symptom. Jews are clearly a social symptom: the point at which the immanent social antagonism assumes a positive form, erupts on to the social surface, the point at which it becomes obvious that society ‘doesn’t work’, that the social mechanism ‘creaks’. If we look at it through the frame of (corporatist) fantasy, the ‘Jew’ appears as an intruder who introduces from the outside disorder, decomposition and corruption of the social edifice it appears as an outward positive cause whose elimination would enable us to restore order, stability and identity. But in ‘going through the fantasy’ we must in the same move identify with the symptom. we must recognize in the properties attributed to ‘Jew’ the necessary product of our very social system; we must recognize in the ‘excess’ attributed to ‘Jews’ the truth about ourselves. (SO, 125128) --  77 Karl, Capital, Ben Fowkes, trans. (New York: Penguin, 1976). Marx, Sloterdijk, Peter, Critique ofCynical Reason (Minneapolis: University of Minnesota, 1987). 78 ”What we call ‘social reality’ is in the last resort an ethical construction; it is supported by a certain ‘as 79 if’ (we act as if we believe in the almightiness of bureaucracy, as if the President incarnates the Will of the People, as if the Party expresses the objective interest of the working class...). As soon as the belief (which... is definitely not to be conceived at a ‘psychological’ level: it is embodied, materialized, in the effective functioning of the social field) is lost, the very texture of the social field disintegrates.” (SO, 36) Ifoft, Claude, Democracy and Political Theory (Minneapolis: U. of Minnesota Press, 1988). 80 Copjec, Joan, ‘rn/f, or Not Reconciled’ in Parveen Adams and Elizabeth Cowie, eds., The Woman in 8t Question (Cambridge, Mass.: MIT Press, 1990) at 12. Another, perhaps more persuasive, argument appeals to empirical studies which clearly show a systemic 82 discrepancy between population breakdown (along lines of class, race, gender, etc.) and, for example, employment type breakdown. Ie., the temptation of filling in the lack with essentializing pathological content. 83 1)enith Jacques, ‘Force of Law: The “Mystical Foundations of Authority” (1990) 11 Cardozo Law 84 Review 919 at 943. We could relate Derrida’s suspension of the law to the court-room process. Could not the procedure of distinguishing a case on its facts be conceived as a supremely ethical gesture whose aim is to garner respect for the specificity of the case (analogous to the particularity of fantasy)? Is not its  Chapter One: Setting the Stage for a Lacanian Displacement  83  function to briefly suspend the law so that it can be reinvented anew (ie., rearticulated to another principle of interpretation)? Miller, Jacques-Alain, ‘The Formal Envelope of the Symptom’ (1991) 4 Lacanian Ink 13 at 17. 85 H, H. L A., The Concept ofLaw (Oxford: OUP, 1961) at 208-23 1. 86 Though the effects of phraseology are more dramatic in the context of legal battles, such effects should 87 not go unnoticed in our daily lives. This can perhaps be brought to the fore in the well-recognized observation (in areas of empirical research) that the manner in which signifiers are strung together in survey questions can have profound effects on the kinds of answers elicited. Thus, though the question posed to male employees of whether they would desire a ‘parental leave’ option is met with resistance, the question phrased in terms of ‘a few days off to spend with the children’ would produce a more positive response. Lacan plays on the French word for word (mot) when he refers to the ‘moterialisme’ of the symbolic 88 order: Lacan, Jacques, ‘Geneva Lecture on the Symptom’ (1989) 1 Analysis 7. Here it might be helpful to think of particular instances of physical/economic power relations (between, 89 for example, man and woman; porn industry and women; logging industry and environmentalists). See Copjec, ‘rn/f, or Not Reconciled’, supra at 15-16. Salecl, ‘Woman as Symptom or Rights’, supra at 92. 9t Salecl, ‘Woman as Symptom or Rights’, supra at 96. 92 Using the signifier universe model to apprehend the legal decision-making process shows us in what way 93 the anecdotal observation that ‘a legal outcome depends on what a judge had for breakfast’ has a grain of truth. It is also instructive to relate it to the popular renditions of chaos theory. Is the reference to breakfast not meant to convey the subtle mechanics of meaning? Is it not meant to show us how a purely contingent and trivial occurrence can result in the emergence of a new master signifier which, through a kind of domino effect, can translate into a significantly transformed symbolic order and corresponding universe of meaning? Can we not see, here, the butterfly effect, and how, in this case, personal ideologies can potentially affect judicial outcomes? So, if psychoanalytic social theory is concerned with empirical studies which map out symbolic universes, how exactly do empirical statistical studies fit in this picture? Of what use are studies that tabulate trends in income differentials generally and comparatively? Of what use are statistics showing numbers of single mothers on welfare vis-a-vis single fathers on welfare? Apart from the usual interpretive caveat when it comes to any kind of statistical study, the poststructural approach treats each of these findings as separate floating signifiers which have the potential to be equivalentially linked about specific master signifiers. It tells us that one cannot in advance determine the master signifier it will be linked to. Indeed, it frequently serves to support several, often incompatible, master signifiers. Hence, the hegemonic struggle. For example, statistics showing that the average Asian high-school student consistently scores higher than the average North American high-school student may be taken to justify the natural superiority of Asians over North Americans, or it can be taken to justify a reexamination of teaching methods, and so on. Also witness the debate among environmentalists, loggers, and logging companies: statistics on hectares of lost forests are linked to the images of open wounds and of an ailing earth, while the statistics showing numbers of lost jobs are linked to struggling family units whose disintegration threatens our fragile social fabric. In the equally charged abortion debate, on the one hand, numbers of abortions are tied to biblical scriptures, to the right to life, and to foetal images in their advanced stage of development; while on the other, statistics on poverty, population, and psychic traumas resulting from being brought up unwanted, are linked to corresponding signifiers, including bodily violations of women, and to the right to security. The status of statistics as floating siguifiers means that how exactly they get threaded into various logics is limited only by the weaver’s imagination. When confronted with an especially twisted and offensive series of equivalences, it does no good to point out that the twisted portrayal of facts does not correspond to the ‘hard’ facts that the statistics were meant to convey. Such a response will not convert anyone who is not already converted. It has little value except as a rhetorical ploy. lii this way of thinking, the ‘correct’ response would be to counter with another (subversive) equivalential logic. (Of issue here, of course, is the relative accessibility to information media through which such equivalential logics can be transmitted. What accounts for perceived informational imbalances: unconscious ‘structural constraints’, conscious ‘vested interests’, etc? This will be taken up in subsequent chapters.) Butler, Judith, Bodies That Matter, supra at 13. 94 ibid. at 15. 95 A11 the while remembering that such factors are abbreviations of particular signifier constellations (of the 96 judge, of the client, etc.).  Chapter One: Setting the Stage for a L.acanian Displacement  84  97 what extent such an ethical shift will be perceived as a shift with noticeably differing results is a To different issue. The cynic will doubtless point out that this new tactical form cannot obviate the possibility of abuse, namely, to serve as a convenient cover or conduit of implicit values. Such a charge, of course, is valid. The problem, however, is that it is always valid even to the point of subverting its own constructive intention. The psychoanalytic stake is the fostering of a less pathological state, both on the part of the progressive strategist (ie., an attempt to avoid the totalitarian temptation of eliminating all that could possibly be conceived as a threat to the state), and on the part of the respondent (ie., to achieve a certain distance from his or her fantasy). Much of this chapter dealt with theory. However, it is hoped that the practical, especially strategic, 98 implications will be apparent. For instance, when combined with the ethics of the real, the implication, from the legal perspective, especially insofar as it concerns itself with dispute resolution processes, is that they should be seen more as a political process. In other words, they should be seen as processes in which an antagonism is transformed into an agonism. Also, our analysis in terms of signifiers (our only access to jouissance) means we can more fully appreciate difference between a simple, low profile, family case, a criminal case, and a case whose outcome is seen to affect a larger segment of the population (loggers vs. environmentalists). This could be conceived, for example, in terms of the signifier’s inertia. --  85  CHAPTER TWO: Doing Theory  In this theoretical chapter, we intend to appeal to the previous chapter’s outline of Slavoj Zizek’s psychoanalytic onto-epistemology and to attempt to highlight the way in which it can be said to follow the logic of the signifier. In doing so, we shall draw upon a ‘background’ working knowledge of the recent work of Ernesto Laclau. We will then attempt an ‘application’ of this logic to specific contexts in order to show its explanatory potential. Finally, we will engage with the broader debate over the limits of modernism and the significance of postmodernism.  The Logic of the Signifier: Toward a Science of Discourse Analysis  The logic of the signifier describes the laws by which any system of signification works. And by signification we mean to imply that which is meaningfid: the discursive. Now, one way to approach the logic of the signifier is not so much by looking at the nature of discourse directly, but rather by looking at it askance. We hope to show that an understanding of such laws can best be achieved as a by-product rather than a main product, much like (falling in) love cannot be pursued directly (ie., planned) but simply ‘falls’ from the outskirts of desire. In other words, we are suggesting that a more  Chapter Two: Doing Theory  86  thorough comprehension of the mechanics of signification will emerge by attempting to think the limits of discourse. What can we say about such limits? Well, we could begin by pointing out that these limits, indeed any limits, in order to qualify as legitimate must announce their presence from within the system whose limits we are trying to think. At the same time, however, we are prevented from directly signifying those limits. Why? Because if we could so apprehend them with the symbolic resources at our disposal, they would immediately, and by definition, cease to be limits. Let us clarify this last remark by recalling the Saussurian commonplace that all identity is differential in nature; that each signified comprises the bundle of a signifier’s differences from all other signifiers. Our system, in this view, is a symbolic order of differences. Thus, adding another signifier, another difference, to the system in order to signify its limits is a self-defeating exercise. This is because this new signifier is an internal moment of the system of signification and cannot, therefore, signify its limits in a direct way. In other words, the limits of discourse cannot have a signifier of its own. So, how to resolve this impasse? Simply by recognizing that every signifier, and thus every identity, is constitutively split. On the one hand, it must represent its own particular content (the bundle of differences from all other signiflers in the system); and on the other hand, it must have the capacity to represent the limits of the system (and thus the constitution of the system along with the radical exclusion this entails). In other words, relational identity is split between its other-differential (System, S2) and Otherantagonistic (Anti-System,  $) guises.  We can also think this split using the  heterogeneous logics of difference and identity. On the one hand we have the logic of difference which, as we pointed out, is responsible for the meaning of the signifier. On the other hand, we have the logic of equivalence by which signifiers are united as, and thus simplified into, a system. We see, therefore, that for a signifier to signify a totality the logic of simplification (identity) must dominate over the logic of complexification  Chapter Two: Doing Theory  87  (difference). And what can this mean but the gradual evacuation of the signifier’s differential identity to a point of pure nonsense; to a vessel devoid of differential meaning? We now have another way to conceive of Iacan’s empty (master) signifier and its accompanying mechanics of capitonnage. In its empty mode of existence, this ‘chosen’ signifier serves as a surface of inscription upon which each of the system’s signifiers inscribe themselves. We have, in other words, a transition from the Lacanian formula ‘every signifier represents the subject for another signifier’ (ie., the non-all logic of the feminine) to ‘the master signifier represents the subject for all other signiflers (of the system)’ (ie., the male logic of the ‘all’).  So, the emergence of a master signifier (Si) constitutes, and represents, a system of differential signifiers (S2). But, as we have also seen, establishing a system implies a radical exclusion of a real, unconscious Other  ($). This Other, therefore, is implicated in  each of the system’s signifiers and is thus also represented in Si, but in inverted form. In other words, Si is indelibly marked by  $. We can appreciate this better by recalling that  Si is the empty signifier, the signifier ofthe lack; whereas  $ is the inverse of this: the  lack ofthe signifier. In short, they constitute two sides of the same object: the objet petit a. And it may help us to refer to the paradoxical geometry of the mobius strip to conceive of this relationship. The local property of such an object points to a certain dissonance or incompatibility between the two sides; whereas the global property points to a (surface) commonality which betrays a radical relation of interpenetration and mutual reliance. And do we not here have just another way of describing the contingent nature of Laclau and Mouffe’s classic notion of antagonism; that every identity is always grounded in a ‘con stitutive outside’ whose specific content can never be determined in advance? For contingency, as it concerns the two poles (Si and $) of a relation, seeks to evoke two aspects.  First, that, though the specific content of each of those positions is  Chapter Two: Doing Theory  88  circumscribed by the availability of potential fillers (floating signifiers), they are not determined by them. And second, that, though each is not determined by the other, each depends on the other for the constitution of its identity. And it is this second aspect which addresses the false accusation, usually lodged by traditional marxists and rightist conservatives, that the contingency anti-essentialists are so ready to valorize automatically degenerates into radical nihilism. The limiting horizon of available possibilities (floating sIgniflers) always prevents a nihilistic infinite play. But if we cannot rationally deduce the particular content (objet petit a) to embody what Laclau calls the ‘form of fullness’ (Si) from the horizon of possibilities we are confronted with, what process do we invoke to create a link? In other words, if we acknowledge the irreducible incommensurability between filler and filling function, what establishes such a relationship (which, incidentally, can only be temporary and precarious)? The answer, of course, is hegemony: the political-interpretive struggle to hegemonize the universal form of fullness by one of a number of particular contents. We see, therefore, why Laclau emphasizes the importance to (radical democratic) politics of empty signifiers.  Quite simply, they make politics possible.  It is the  separation of empty form from particular content that betrays a contingent relation and thus the possibility of an alternative articulation. And the more empty signifiers emerge, the freer the society. For a belief in structural determinism comes from misperceiving the contingent as necessary; and the revelation of the contingent in the heart of necessity expands the horizon of possibilities. And can we not see, now, why progressive scholars must advocate as an internal moment of their political program such a traversal of fantasy? And can we not also see how this insight has been made possible by fully assuming the split nature of the signifier, a theoretical model which we stumbled upon by trying to delineate the contours of discursive limits; and a model which will help us better understand the nature of the subject as structural failure?  Chapter Two: Doing Theory  89  Let us now specify a bit more precisely the significance and operation of the misperception of the contingent as necessary. In a first approach, we could say that it belongs to the Lacanian imaginary order, an order in which closure and full identity is achievable; where the filler is rigidly linked to, and misperceived as, the form of fullness itself. In Lacanian jargon, we could describe the emergence of the imaginary order as the (illusory) fusion of the objet petit a with its empty form, Si (Imaginary=S 1 + a). It is this fusion that is responsible for the overwhelming feeling of fullness and positivity, a feeling often associated with ego caressing. And we can see now how a democratic ethics of the real calls for a separation of Si from its object-content (Real=S i-a) so as to permit a hegemonic struggle among alternative competing fillers. As we have noted elsewhere, separation is often accompanied by feelings of deflation, disappointment, negativity, even horror. But why does the empty master signifier emerge in the first place? The answer, according to Laclau, is dislocation. The incidence of an external discourse (the ‘return of the real’) dislocates the imaginary filler (objet a) from its hegemonic status as form of fullness (Si) to reveal the real lack  ($) that it attempts to conceal  --  a lack which is  nothing but the subject itself. Thus, we can say that dislocation marks the emergence of the subject. It locates the point at which the structure fails to achieve full identity with itself. We thus have a new relationship between subject and structure: the subject is the contingent failuie of structure. In opposition to the belief that a ‘valorization’ of contingency implies a nihilistic interrogation and abandonment of structure, contingency actually presupposes structure. In other words, the critique of anti-essentialism which suggests that contingency implies lack of structure must be radicalized and transformed. Contingency does imply lack of structure, but not in the usual nihilistic sense of the phrase. Instead it implies the lack of  the structure: a structural antagonism. The structure, though it necessarily circumscribes, cannot ever be determinative, not because of empirical limits, but because the logic of the  Chapter Two: Doing Theory  90  signifier dictates a radical exclusion and thus a radical unknown whose effects cannot be predicted. We see, therefore, why such unknowns can only be dealt with one by one as they manifest themselves as instances of the return of the real; in other words, as each successive constitutive outside begins to impose itself upon the system whose very existence and identity relies on that exclusion. Let us elaborate. We saw how the logic of the signifier is born out of its split nature. A system of knowledge (S2) is formed through the emergence of an empty signifier (Si) which is occupied and represented by a filler (a) and tied, as if by an umbilical cord, to its excluded Other ($).‘ In developing this formulation, therefore, we could say that the internal split of the signifier is projected outward onto the political landscape as a social antagonism. In short, Laclau and Mouffe’s social antagonisms are made possible by the structure of the signifier. Now, every identity, every signifier, is supported by such an exclusion. In this sense, each is always already antagonistic, even if its Other has yet to show up. This also explains why, as a matter of strategy, a simple affirmation of difference (between an identity and its Other, as in the American as Good and the Russian as Evil) further entrenches their respective identities. Only with the use of a common language such as the rights discourse, and thus the possibility of an equivalential logic, can the Other begin to impose itself by subverting the identity that excluded it. But how exactly does its antagonistic Other emerge? We have already suggested an answer: As the ‘return of the real’. In other words, what has been excluded from the symbolic order (and thus relegated to the real) in order to constitute itself, eventually begins to reimpose itself. And since the real can make itself felt in the system only in terms of the signifiers available in that system, its presence will be marked by its idiosyncratic symbolic-structural inconsistencies and defects. When, for example, women demand the right to vote or to work, they point to the legal order’s inconsistencies. On the one hand, it advocates equality before the law for all persons, and  Chapter Two: Doing Theory  91  on the other, it attempts to exclude women from the category ‘persons’. The first political articulation of such a demand marks the emergence into the social of an antagonism. We can begin to see, therefore, the significance of the rights discourse for the expression-externalization of relations of domination. This is because rights are, if not theoretically understood as such, certainly circulated in a fashion that suggests an acknowledgment of their split character. They represent not only the specific demand being articulated; they also represent the form of fullness which totalizes similar demands into a coherent opposition (anti-system) that pits itself against the system. The rights discourse provides a language which permits an otherwise excluded Other to begin to be heard in a fashion which, in other circumstances, might have led to a more ready resort to violence. We could say that the rights discourse takes us a long way along the path to an ethical politics of the real. The separation between the form of fullness and its particular content opens up the space for change. And this separation, of course, is only made possible by the radical ambiguity implied in the split of the signifier, namely, that the particular content stands not only for its own differential meaning, but can also stand for a totalized system of contents which have been linked through articulation. As to which of a number of floating signifier emerges as master, this can only be decided by a contingently hegemonic struggle. We see, therefore, how the rights discourse attempts to keep alive the split of the signifier in order to accommodate one by one the demands arising from the returns of the real. The alternative to this feminine ‘non-all’ approach is to enumerate all the possible demands in advance. This would constitute the totalitarian temptation and would subscribe to the masculine logic of the ‘all’. For the ‘all’ logic ignores the laws of the signifier which imply a radical (and thus unknowable) exclusion for the purposes of the constitution of the symbolic order. (EP, 12 1-126) The totalitarian wallows in the imaginary order because he mistakes the filler as the form of fullness. He does not  Chapter Two: Doing Theory  92  recognize that the property that is responsible for such things as overdetermination, radical ambiguity, subversion, politics, humour, and guilt is also responsible for a necessary exclusion-antagonism. He is forced, in other words, to conceal the irreducible split of the Social by repressing it in a symptom. Everything that prevents the Social from constituting itself, no matter how absurd or inconsistent, gets funneled into the symptom (eg., the Jewish conspiracy) and so deflects attention away from the constitutive nature of antagonism. Thus, the totalitarian temptation consists in creating long lists of symptomal properties that must be eliminated. Why? To keep alive the fantasy that the Ideal Society is possible; to keep at bay the real of subjecthood by covering it up with a pathological filler. And, of course, this is why Lacan’s formula for fantasy is $Ga.  Now, we opened our theoretical discussion by deducing the Lacanian logic of the signifier, and we have since invoked it as a principle of intelligibility with regard to such things as identity construction, social antagonisms, the rights discourse, radical democracy, totalitarianism, etc. Are we not justified in claiming that the law of the signifier is too good to be true? And while we are at it, why not interrogate the status of this ‘law’? In what sense can we say that such a logic makes overtures toward what we could call a science? And, perhaps more importantly, in what sense does it pretend to stand aloof from the social practices that it purports to describe? Indeed, Judith Butler goes so far as to suggest that Laclau’s own invocation of these laws of logic suffers from a historico-contextual amnesia.  She says, for example, that “Laclau offers us a  description of the logical features by which any social practice proceeds, thereby postulating a logic to which social practices are subject but which is itself subject to no 2 Or, elsewhere, she asks “[w]hat accounts for the apparent separability social practice.” of the logical from the social, such that one might appeal to the logic of the social, as if that logic were itself not the distilled and sedimented effect of social practices?” 3  Chapter Two: Doing Theory  93  Of course, we sympathize with Butler’s position that no principle of intelligibility can exist independently of the discursive horizon that engenders its coordinate system and thus orients it. However, to suggest that Laclau should somehow be exempting the operation of this logic from the influence of social practice not only goes against the main thrust of his whole corpus, but also verges on critical negligence, even intellectual dishonesty. This is all the more surprising when one takes into account her normally very close and sophisticated readings of theoretical texts. But here, we have a suggestion so far off the mark that we must pause to regain our balance. Let us be explicit in order to drive the point home. For the moment, let us be brash enough to suggest that the laws of the signifier occupy a position akin to Newton’s laws of motion. Whereas the latter apply to the discursively constructed physical world, the former apply to the discursively constructed discursive world. Now, does the postulation of such laws imply their radical exemption from the world that gave birth to them? If it is possible to misperceive them as such, Thomas Kuhn’s work” should, by now, have laid any such illusions to rest. Not only are scientific laws born out of the phenomenal world, they are also constantly being re-tested and modified.  Why?  Because the hegemonic status of any set of laws always entails a radical exclusion which can only return as the real. An ethics of science, therefore, would suggest that we be sensitive to observations which are ‘abnormal’, which don’t quite ‘fit’, with the reigning principle of intelligibility. In other words, the ‘return of the real’ provides a source of perturbatory feedback, forcing a constant re-evaluation of scientific laws and reminding us of their inextricable link to the real order  --  a real order which can only manifest itself  from within our symbolic universe through inconsistencies, paradoxes, anomalies. And, as we have said, these comments apply with equal force to the laws of motion which govern the interaction of physical bodies and to the laws of the signifier which govern the interrelation of signifiers, antagonisms, symptoms, and the like. This is why Laclau is explicit on this point, noting that “it is only through a multitude of concrete studies that  Chapter Two: Doing Theory  94  we will be able to move towards an increasingly sophisticated theory of hegemony and social antagonisms.” (Emphasis added) (TDS, 235) We could say, therefore, that the law of the signifier takes its own demise into account in advance. Its reign implies the repression of alternative laws which will return later as the real, either to modify or to replace. We see this quite clearly in the domain of physical science. First, Galileo invented the telescope. Then, Tycho Brachae amassed a towering collection of planetary observations. This was then followed by a grinding distillation into a few simple laws by Johannes Kepler, which were promptly perfected by Newton’s inverse square laws. But were they really immutably perfect? Of course not. Technological development opened up the door to measurements of ever increasing sensitivity  --  measurements which could not properly be explained by Newton’s laws.  We had, in other words, a case of the return of the real the upshot of which was the dislodgment and replacement of the hegemonic status of Newton’s laws by Einstein’s general theory of relativity. We see, therefore, how we can argue that the laws of the signifier belong to a science in the strictest sense of the term.  And this brings us nicely to the topic of social change and how that is related to the logic of the signifier. For it is becoming increasingly apparent that the rapid technological development and social change that accompanies our late capitalist societies helps us more fully grasp this logic.  We live in a world in which  commodification is the name of the game and in which there is a simultaneously diminishing commodity life expectancy. Under these circumstances, we necessarily become aware of the contingency of the definitional process, even if this awareness operates on an subconscious level. However, in a world that subscribes to predictability, tradition, order, and inter-generational constancy, objects appear to possess an unchanging and definable essence. We can see, here, how the (traditional) marxist versus  Chapter Two: Doing Theory  95  postmarxist debate can be historically located at a critical point of late capitalist development. The accelerated rate of social change operates to dislodge the appeal to essentialism from its hegemonic status. It reveals essentialist categories such as ‘class’ to be only special cases of a more general anti-essentialist sensibility, just as Newton’s laws of gravitation constituted a special case of Einstein’s general theory of relativity. We could say that we live in an era of a new common sense. But if we wanted to be accurate, we would have to say that we are living in an era of common nonsense. This is because the old world of tradition subscribed to a descriptivist view in which meaning was fixed and independently graspable. In that world, we could indeed have a common sense, shared by anyone and everyone. We lived in an imaginary order in which the filler was misperceived as the form of fullness (Sl+a). Today’s world, however, repeatedly confronts us with the arbitrary, happenstance, and precarious nature of the definitional process. We experience, in other words, a plethora of separations (Si-a) which give rise to a new common non-sense that recognizes (though may not want to admit) the constant overdetermination, subversion, and unfixity of meaning. We have, in other words, the emergence of empty signifiers (non-sense), whose existence makes possible the symbolic order, and which are always linked to their radical Other (jouis-sense). What we find, however, more often than not, is an attempt to suppress this shocking fact by regressing to a nostalgia for a long-lost certainty. The contingency of meaning is so unbearable that we often redouble our efforts to pin down a common sense. And the ambivalence between fully assuming the radical historicity of all being and attempting to ignore it by appealing to foundationalism can be seen reflected in the legal discourse, from natural law, legal positivism, legal liberalism, and legal marxism, to legal realism, critical legal studies, minority critical legal studies, and law and society scholarship. This is why the theorization of this new common (non)sense  --  anti-essentialism  --  is of crucial importance to the progressive left and, specifically, to the viability of a  Chapter Two: Doing Theory  96  radical democratic project. Can we not now appreciate the significance of the work of such authors as Laclau, Mouffe, and Zizek? They have fully recognized the totalitarian regression that our rapidly changing society could easily encourage. The proliferation of nationalisms in the wake of the Communist break down, and the sprouting of religious fundamentalisms and racisms in Western capitalistic societies should present us with sufficient sobering evidence.  We need to acknowledge and fully assume the life-cycle of the signifier. And here we could point out, though it should come as no surprise, how such a life cycle is played out in I.acan’s typology of the four discourses. Let us begin with the discourse of 5 This discourse evokes such notions as objectivity, spatiality, reification, the university. sedimentation; in short, an ordered social. We are presented with a system (S2) that is assumed to be natural and inevitable but which conceals the empty signifiers (Si) that structure that system. We find ourselves, in other words, in the imaginary realm of ideological illusion. The paradigm exemplification of this mechanics, of course, occurs in the legal discourse. In that instance, we have an attempt to resolve disputes by asserting an unquestionable essence of legal categories and the inevitability of just outcomes. However, the attempt to impose the system of knowledge upon disputants invariably causes the hysterical subject to emerge: there is always a residual resistance that evidences the ungentrifiable real of the subject. As we noted in chapter one, this resistance often comes in the form of the question ‘why me?’, ‘why are you telling me what Jam?’ A quarter of a revolution brings us to the discourse of the analyst. 6 Here, the real subject produced in the discourse of the university surfaces into consciousness. We experience a lightning sensation of dissatisfaction with the reigning order. Suddenly that which tried to pass as Order is seen as Disorder, and the particular content which incarnated that Order is dislodged from its hegemonic position. Such dislocation gives  Chapter Two: Doing Theory  97  rise to an alternative content that seeks to incarnate a new Order in antagonistic opposition to the old (dis)Order. The discourse of the analyst, therefore, is of the order of the temporal or political. It is responsible for the creation of new, empty master signifiers into which new contents can be inserted. It reproduces the Lacanian act whereby the content is separated from its form of fullness to open up the space for new alternatives. It reveals how every identity (signifier) is dislocated insofar as it is traversed by an antagonism (split) and thus prepares the way for the discourse of the hysteric. 7 Now, we just saw how the frustration experienced in the analytic discourse gave rise to new master signiflers. In the discourse of the hysteric, we have the subject as lack in the position of social lack  --  a lack which solicits competing master signifiers for  (ful)flhlment. In other words, in terms of the logic of the signifier, we find ourselves at the stage of hegemonic struggle and political argument. And this brings us directly to the discourse of the master , for the decision declaring what content should finally incarnate 8 which master signifier can only be tautological. It can never be grounded in a rational foundation. It can only be the result of a radically contingent and hegemonic intervention which attempts to conceal its antagonistic Other. But let us remember: Once the decision has been made, if the historicity of its being is not kept alive, we find that it soon becomes an unquestioned part of the social fabric. In other words, we come full circle to the discourse of the university whose ordered and stable system of differences conceals the power relations that made it possible. Can we not see here, therefore, the replication of the cycle of the signifier (or, alternatively, the life-cycle of an antagonism)? First, the split nature of the signifier (and subject) is concealed in the deep recesses of the social (discourse of the university). Then, we have the surfacing of the split, the emergence of the real subject of the signifier (discourse of analyst). Following that, there is a struggle among competing fillers which strive to appease the lack (discourse of hysteric). And finally, we have the contingent hegemonization of the form of fullness by a particular content (discourse of the master)  Chapter Two: Doing Theory  98  whose history, if forgotten, returns us to the covering-over of the split (discourse of the university)  --  a split without which such cyclical reifications and dereifications would  have been impossible. 9  Now, lest we begin to think that these theoretical ruminations have no practical relevance, let us see how the logic of the signifier can be used to explain several discursive developments in the realm of law. (Of course, we intend to make a more thorough implementation of the laws of the signifier and its subject in the context of the rights discourse, but this should serve to quench an immediate curiosity.)  Sample Readings  Gay Rights and Gay Strategies  In the context of the gay movement, we will see how mainstream heterosexual identity is consolidated through its opposition to a gay and lesbian ‘outside’. Gays and lesbians have been, and often still are, perceived as a threat to the heterosexual norm. Now, what is this if not an exemplary case of Laclau and Mouffe’s antagonistic relation? We have two identities which are only partially and antagonistically constituted. On the one hand, the heterosexual is incomplete inasmuch as it relies on an Other to recognize itself as heterosexual. On the other, the homosexual is incomplete insofar as the Other is  perceived as an obstacle to the realization of his or her full identity. In looking at the life cycle of this particular antagonism, we hope to show how the logic of the signifier can serve as a powerful explanatory model in accounting for the critical role played by the rights discourse in making the gay and lesbian movement one of the strongest minority lobbies in the US.  Chapter Two: Doing Theory In the beginning  --  99  a beginning which could, perhaps, be traced to the raid of the  New York gay bar, Stonewall Inn, on June 27, 1969  --  there was antagonism: verbal and  physical harassment of gays, followed by reciprocal and retributive behaviour, followed by a spiraling escalation in intensity and frequency. The retroactive byproduct of such a temporal dislocation of the social fabric, however, was to push back in time the ‘original’ beginning and create a myth of origins  --  a nostalgic origin devoid of antagonism, and  one which we would gladly return to. The myth, therefore, is not only retrospective. It functions as an impetus toward an idealfi#ure  --  one that will serve to heal the wound of  the social: the real antagonism. And it does so by offering itself up as a surface of inscription:  a general form of fullness which competing programs (interpretive  principles) vie to incarnate. The problem, of course, is that the reigning program (systematic silencing and marginalization of gays and lesbians through written laws and unwritten customs; the insistent non-recognition of gays as a minority group) is usually so well installed in its position of the solution that the contingent nature of its hegemonic status is hidden. In other words, the content has become synonymous with the very form of fullness, thus collapsing and concealing their radical incommensurability. In this instance we find that by offering the exact counter program matters were exacerbated. Why? Because a strategy which advocates an open and insistent demand for visibility and affirmation of the d/ference of identity is merely the inverted image of the dominant strategy. It merely assists in the entrenchment of each antagonist’s (partial) identity. The worsening antagonistic stalemate that such a strategy gives rise to was exemplified in the historical trajectory of the gay movement. It is worth recalling that “polls in the early 1970s showed that over 70% of Americans thought homosexuality was 10  viewing them as deviant, sick, immoral, and evil. In this context, therefore, an  affirmational strategy involving such slogans as ‘say it loud, gay is proud’, ‘gay is good’,  Chapter Two: Doing Theory  100  and ‘three-five-seven-nine, lesbians are mighty fine’ merely served to cement mainstream heterosexual identity through antagonism. So what would a subversive strategy look like? How can one wrest the dominant and repressive program from its role of hegemonic (im)posture? The only way to do this, of course, is to appeal simultaneously to a universal principle which unites both antagonistic forces and to the particular demands made by the oppressed. It is suggested that the concept of rights can and does act as just such a Derridean hinge. As we noted earlier, the notion of ‘right’ (or any other signifier) is constitutively split. It designates not only a particular demand (the right to spousal benefits, the right to  become a member of the clergy), but also a universal demand (the right to a right, the right to be treated equally). Drawing from the same discursive material used by the dominant group to justify exclusion, ’ and by creating a series of equivalential links 1 between the particular demands made by the minority group and the already satisfied demands by the dominant group, a displacement is effected such that the stark line separating the ‘friend’ from the ‘enemy’ is blurred and transformed into a more fluid boundary separating ‘friend’ from ‘adversary’. And this is exactly what we see in the development of the gay movement. Gay activists found they were able to begin conversation by engaging in the rights rhetoric. Significant strides were made possible as the affirmation/scourge impasse was superseded by a reorientation of the discourse toward the issue of discrimination.  This was  facilitated by the growing number of violent anti-gay incidents and the emergence of a new sociological category, ‘gay-bashing’, which was, in turn, quickly subsumed under another classifier, ‘hate crimes’  --  a class which included crimes against already-  recognized minority groups, such as black, Hispanic, and Jewish persons. Through such displacements, mainstream society was thus confronted simultaneously with the visibility of sexual minorities and their (for once) legitimate recognition. The fact that such recognition was accorded through victimage rhetoric and negative rights (rather than  Chapter Two: Doing Theory  101  affirmation rhetoric and positive rights) should not obscure its manifestly subversive function (recognition of gays as a legitimate minority group). And as Andrew Jacobs points out, this shift in discourse so apparent in popular discourse can also be readily discerned in both judicial discourse (for example, Bowers v. 2 Hardwick’ ) , and political discourse (for example, the debates surrounding the proposed (but vetoed) 1991 California Assembly Bill 101 13). So what conclusions can we draw from this general pattern of discourse evolution such that while public disapproval of homosexuality has remained constant, there has nevertheless been an increase in ‘formal’ tolerance. Can we not detect the quiet operation of the logic of the signifier? What is the production of the category ‘gay-bashing’ if not evidence of the emergence of an empty signifier which points to social dislocation; which suggests that something is out of joint; that something doesn’t quite fit; that something is amiss; that something needs to be set straight? The empty signifier, therefore, operates as a surface of inscription on which different ‘rectifying’ proposals compete for hegemony: do we pass anti-hate laws for the protection of gays and lesbians? Do we remove institutionalized norms which discriminate against gays and lesbians? It provides some breathing space  --  a buffer zone  --  to ease an otherwise brittle and highly volatile  antagonistic deadlock. And what is this if not evidence of the subject as vanishing mediator so characteristic of Lacan’s discourse of the analyst? For a brief moment we witness the emergence of a structural lack; a point at which the social structure is not at peace with itself. And no sooner do we become aware of it than it is quickly filled in by a hegemonic ‘solution’, thus covering up the traces of the contingent nature of its institution.  Chapter Two: Doing Theory  102  Undecidability and Identification: Politicizing the Legal Categories of Homosexuality and Pregnancy  In his article ‘Representing Identities’, Dan Danielsen has convincingly argued that legal discourse is inhabited by an irreducible undecidability’ 4 that is the hallmark of what Chantal Mouffe calls the political:  an arena in which an array of possible  interpretations-decisions vie for hegemony.  In his attempt to reveal this basic  undecidabiity, Danielsen examines doctrinal argumentation and legal representation in the context of pregnancy 15 and homosexuality. 16 In both contexts, the doctrinal approach proves unhelpful in establishing a framework with which to predict outcomes or plan strategies. He finds, for instance, that establishing the courts’ positions on certain key issues (Is the agent responsible for his/her conduct? Is his/her trait a result of natural or social environment? Does the agent have any choice over his/her traits?) does not have any bearing on the final decision. Indeed, he finds that identical doctrinal stances can lead to opposite results. Similarly, the representational approach leaves no room for a consistent critique of the portrayal of pregnancy and homosexuality in legal discourse vis-a-vis more ‘authentic’ representations. This approach draws upon criteria other than legal doctrines or outcomes with which to judge a decision, namely, representations in the ‘real’ world. The problem, of course, is that the experience outside the courts is not homogeneous. Rather, we tend to find an irreducible diversity/incompatibility of images in our extra legal common sense. We find, for instance, appeals to a person’s identity as inherent and status-like, or manifest and conduct-like, or a mixture of both. What the above two approaches have in common, Danielsen implies therefore, is a reliance on an old-fashioned concept of false-consciousness; that there is, indeed, a discoverable and objective truth that we can discern and use as a point of critical departure. They share the common presupposition that identities are either re-presented  Chapter Two: Doing Theory  103  or mis-re-presented; that they are always present (fully constituted) in advance and that each representation is therefore either true or false. They do not allow for the possibility of a deficient or partially-constituted identity; an identity in the making. In short, they ignore the possibility of an in-situ attempt to create a new identity, thereby suppressing the emergence of the subject as lack. We can thus begin to discern a role for the progressive critic: to expose the empty space which is so rapidly filled; to make plain the historicity of being; to make visible the contingent relation between the content of the identity and the lack which it attempts to fill. The critic thereby widens the horizon of possible (and partial) identities which can compete for hegemony. Danielsen concludes: Perhaps we must recognize that legal discourse is itself a site for ongoing interpretive struggle over the meaning of identity, rather than an independent system of fixed images and rhetorical tropes which merely describes and distorts our experience. To do so might involve a legal practice which seeks to understand and strategize about the ways in which legal discourse through its very indeterminacy, might be able to provide the space for our complexity and differentness to be represented but not 7 determined.’  Emptying the ‘Family’  The constitutive gap that defines every signifier can also be seen in legal discourse within the context of the family. Ever since this gap’s early manifestation as the crack that separated Church and State, the split has traveled ever more deeply into the sedimented strata of our society. And one of its more recent casualties has been the institution of the family. As a result of the penetration of the democratic ideal of equality into evermore social spaces, there have been a growing number of dislocations. Many of these have centred around the family which has, therefore, increasingly become a site of political  Chapter Two: Doing Theory  104  struggle. In other words, it is serving as a surface of inscription upon which individual group complaints and demands become inscribed. Numerous genealogical and deconstructive studies conducted by feminist, critical race, and sexual minority legal scholars have shown how the family has historically been rigidly designated as the pillar of society, comprising a middle class, single race, heterosexual unit with the woman as primary caregiver.’ 8 This, of course, has significant implications because many state (and private) benefits are dispensed on the condition that family ‘criteria’ are satisfied. The dislocation has been particularly acute in the case of lesbian and gay persons wishing to adopt (or retain custody of) children as couples or single parents. Child custody law, therefore, has proved to be a particularly useful window into the shifting discourse surrounding the family. How exactly is the logic of the signifier operating here? In a first approach, we can see how the family has, for a remarkably long period of time, forgotten its political (and thus contingent) origins and presented itself as a natural and unquestionable fact of life. The reaction to its suddenly being put into question is to point to a list of characteristics which are meant to capture the ‘essence’ of family. But, as we saw in chapter one, the ‘essence’ (the objet petit a) always escapes the frantic attempts to pin it down in an exhaustive enumeration of defining features. There is a constant and constitutive overflowing. Nevertheless, there is a concerted effort to arrest this slippage of the signified under the signifier of ‘family’. Oppositional logic is enlisted to help defend this consecrated institution. Drawing from such discourses as psychiatry, biology, religion, and political morality, sexual minority and mixed-race parenting are invoked to raise the spectres of impending threat, fear, and death. The very questioning of the sanctity of the family becomes synonymous with the disintegration of civilization. Tampering with the family is seen as pure evil and a potential return to the state of nature. Conservatives are  Chapter Two: Doing Theory  105  most reactionary: women who seek to adopt children without experiencing the ‘proper’ sexual relationship have obvious psychological problems; ‘virgin’ mothers are selfish because they are childless by choice and are prepared to ‘steal’ medical (insemination) and institutional (adoptive) resources away from those women who really need (and deserve) them; lesbians and gays must have dubious reasons for wanting children; children of ‘virgins’ will develop a jaundiced view of sexual relationships; gays are a repository of all sorts of diseases, such as AIDS, which threaten the very fabric of society; gays and lesbians are promiscuous and engage in unnatural acts, and aggressively proselytize the innocent. The liberals, for their part, adopting the immutability theory (in contrast to the conservatives’ ‘choice/social construction’ theory) seem to implicitly endorse the hierarchy between heterosexuality and minority sexuality by accepting them as potentially legitimate members of a family so long as they do not flaunt their homosexuality. And, the oppressed, in their turn, see the family in its present incarnation as an obstacle to the full realization of their identity as human beings. What we have here, therefore, is a clear case of the birth of an antagonism and a clear illustration of the process of identification. Defenders of the heterosexual ideal not only view the family as possessing a list of positive properties. They also construe any attempt to question those properties as an anti-social threat. Any attempt to affirm an alternative family as ‘good’ will be seen as a threat and will serve as a means to consolidate the conservative identity. However, as we already noted, there is always an inevitable slippage. Mixed-race adoptive parents, for instance, is more or less acceptable as a legitimate component of today’s family. This has been done by focusing on the similarities between ‘traditional’ families and potentially ‘new’ families, ie., by establishing a (subversive) equivalential link. Further demands by sexual minorities are introducing an even further expansion of the meaning of the family. It becomes obvious that the family has become a site of political struggle. In other words, ‘family’ now operates as the signifier for an ideal  ChapterTwo: Doing Theory  106  society ridded of oppression and all threats to its well-being. The myth of a better society serves as a surface of inscription for competing demands. But how exactly, has this become. possible? The idea is that the demands, originating from more and more quarters of the population, establish equivalential links with the signifier ‘family’ by repeated association with it. It has thus gradually been emptied of the particular content with which it was originally associated and has become the focal signifier designating opposition to the status quo. The political character of the family has thus become visible, and the question then becomes whether the courts are best suited to supervise the hegemonic struggle between its different possible conceptions. Of course, it goes without saying that the dual role played by the signifier ‘family’ (ie., its role as designating the ‘filling function’ and its role as bearer of a particular content) is made possible on account of its originary constitutive split. And need we point out how the rights discourse has been instrumental in giving voice to the demands of the oppressed and how it has provided the resources for subversive equivalential links (albeit without any guarantees)? But more of this later. Now, we will turn to consider the highly volatile debate on postmodernism.  Chapter Two: Doing Theory  107  Postmodernism as the Limit of Modernism: Variations on a Theme  Even a brief perusal of the literature centering about the postmodern debates leaves one with the impression that advocates on either side of the fence are, more often than not, arguing cross-purposes without engaging each other in a meaningful manner. This section is a first attempt at clarifying the issues so as to establish the terrain for a more fruitful dialogue. In doing so, we have chosen to concentrate on several themes which are often evoked in this area of contestation: Onto-epistemology; Fixity versus Nihilism; Power, Resistance, and Structural Constraint; the (im)possibility of Justice; and Discourse, Ideology, and False-Consciousness.  On the Onto-epistemological Issue  Here, we might recall our discussion in chapter one of the materialist poststructuralist debate. How else might we approach the issue? We could, perhaps, begin by remarking that postmodernism (or postmarxism) arises as a result of trying to think the limits of modernism (traditional marxism).  Though postmodernism’s  beginnings may be traced to a mutation in the discourse of aesthetics, it has gradually spread into ever-new areas, steadily becoming the new horizon of our political and cultural existence. (PLM, 63) This new postmodern sensibility is characterized by an awareness of the precarious and contingent nature of identification; that things could very well have been otherwise. In short, postmodemism announces the historicity of being. And what exactly has made this new ethos possible? What historical account can we give to explain the emergence of this new mood? The answer has already been suggested by Fredric Jameson: the cultural logic of late capitalism.’ 9 In other words, the very rapid, indeed crescendoing, pace of developmental change (based on wage labour), combined with the  Chapter Two: Doing Theory  108  unevenness of the social, has made visible the process of definitional negotiation as opposed to definitional discovery. Rapid change has thus been the cause of a growing number of dislocations, antagonisms, and accompanying empty signifiers. Think, for instance, of the creation of new sites of struggle such as the ‘family’, ‘rape’, ‘pornography’, ‘gay bashing’, and the ‘precautionary principle’. It is these sites that have served as just some of the rallying points for the new social movements. And it is the exposure of the social-in-the-making that has forced a rethinking of modernism. But let us be clear: what we have in mind here, is not the abandonment of modernist values such as reason, autonomy, freedom of thought, etc. Rather, it is the  ontological status of these values that is being interrogated. It is submitted that the conflation of these two positions, namely the political choice of values and the onto epistemological status of these values, has created much of the confusion in the contemporary postmodern debate. Let us take, for example, Christopher Norris who enlists Norman Geras in his tirade against postmarxists such as Ernesto Laclau and Chantal Mouffe. Norris’ essay ‘Getting at Truth’ ° provides a clear example of the kind of 2 literature that attempts to pass as academically productive and engaging; that tries to advance the debate in a meaningful way. However, this is exactly what it does not do. Instead, what we get is an unmistakable air of superiority and smugness manifested in a persistent unwillingness to engage with issues raised by Laclau and Mouffe. Unfortunately, pretences of engagement (by means of occasional references to other peoples’ work (Geras) about still other peoples’ work (Laclau and Mouffe)) do not constitute sufficient grounds for off-hand dismissals. Frustrated at not being able to dig his teeth into a meaty issue, Norris finds an unfortunate outlet:  lashing out at  postmarxists, the harbingers of nihilism and mayhem. His lack of thorough engagement with Laclau and Mouffe is evidenced by his heavy reliance on Geras. However, he does occasionally attempt a more direct portrayal of their project. It is here that glaring  Chapter Two: Doing Theory  109  inaccuracies blind the reader. And no amount of erudition and deployment of theoretical artillery will cover up this gaping deficiency. In a bid to illustrate our point let us present a few pairs of juxtaposed extracts and let them speak for themselves:  Dismissive Accusation I: Laclau and Mouffe can go as far as to argue that there is simply no relation between class or gender as conceived in ‘traditional’ (ie., Marxist or feminist) terms and the range of strategies that is now opened up for a ‘democratic socialism’ happily disabused of such ‘essentialist ideas and willing to take its chance with one or other of the discourses on offer. 21 Antecedent reply I: To what extent do social classes exist nowadays? It would certainly be false to say that they have entirely disappeared. If one thinks of the workers in a mining enclave, for example, it is evident that the category of class may to a large extent be useful in characterizing them, since one finds a fundamental continuity and stability between all their subject positions. And the same could be said for a variety of other sectors. But if one thinks of the generalization of the phenomena of combined and uneven development in contemporary society, of the rapid rate of technological transformation and of the increasing commodification which takes place in late capitalism, it is clear that the prevailing tendencies lead to the decline of ‘classes’ as a form of constituting collective identities. This could also be reformulated in the following terms: there is a decline of the social as a set of sedimented objectivities and an expansion of the field of the political. (LTA, 165-166) --  --  Dismissive Accusation II: [Laclau and Mouffej show little grasp of their disabling political 22 consequences. Antecedent reply II: This lack of closure modifies the nature and importance of political argument in two important senses. In the first place, if an ultimate ground is posited, political argument would consist in discovering the action of a reality external to the argument itself. If, however, there is no ultimate ground, political argument increases in importance because, through the conviction that it can contribute, it itself constructs, to a certain extent, the social reality. Society can then be understood as a vast argumentative texture through which people construct their own reality. Abandonment of the myth of foundations does not lead to nihilism, just as uncertainty as to how an enemy will attack does not lead  Chapter Two: Doing Theory  110  to passivity. It leads, rather, to a proliferation of discursive interventions and arguments that are necessary, because there is no extradiscursive reality that discourse might simply reflect. (PLM, 78-79) And more recently: Many rationalists will certainly accuse such a political philosophy of opening the way to ‘relativism’ and ‘nihilism’ and thus jeopardizing democracy. But the opposite is true because... the recognition that they do not have an ultimate foundation creates a more favourable terrain for their defence [ie., because it is not given in advance and thus must be argued for and justified JiG]. When we realize that, far from being the necessary result of a moral evolution of mankind, liberal democracy is an ensemble of contingent practices, we can understand that it is a conquest that needs to be protected as well as deepened. (RP, 145) --  Dismissive Accusation III: Theorists like Laclau and Mouffe... can argue that ‘reality’ is entirely a construct of linguistic, discursive or textual representation. 23 Antecedent reply 111: [T]he concept of discourse is not linguistic but prior to the distinction between the linguistic and the extralinguistic.... Because every social action has a meaning, it is constituted in the form of discursive sequences that articulate linguistic and extralinguistic elements.” (PLM, 71) “[T]he distinction between linguistic and non-linguistic elements does not overlap with the distinction between ‘meaningful’ and ‘not meaningful’, since the former is a secondary distinction that takes place within meaningful totalities.” (PWA, 83) “The entire development of contemporary epistemology has established that there is no fact that allows its meaning to be read transparently.” (PWA, 84) “[A]s a member of a certain community, I will never encounter the object in its naked existence such a notion is a mere abstraction; rather, that existence will always be given as articulated within discursive totalities. (PWA, 85) --  Conflating the linguistic and the discursive, whose separation has been a major concern of postmarxist theorists like Laclau and Mouffe, surely evidences Norris’ egregious casuistry. And to add insult to injury, he calls on the services of Norman Geras whose work 24 is a rejoinder to a L.aclau and Mouffe article (PWA) the substance of which Norris clearly shows himself to be ignorant of. In turning to Geras, however, and in trying to move beyond Norris’ hot but empty theoretical firepower, let us tackle more precisely the issue at hand, namely, how to grasp  Chapter Two: Doing Theory  111  the limits of modernism. In answering this question, we shall also see what makes possible for both Geras and Norris the transformation in status of ‘postmodernism’ from a “precious gift into a gift of shit (as Lacan put it in his Seminar XI)..” (LA, 129) And let us do this by considering the frequently-maligned concept of ‘utopia’. Utopia, understood as a blueprint for an ideal society (TDS, 232) devoid of antagonism, constitutes the driving force behind political activity. The crucial issue, however, is how to distinguish between an essentialist utopia and an anti-essentialist utopia (anti-utopia). It is the irreducible ambiguity that accompanies any such attempt that permits the above-mentioned slippage. This slippage surfaces in the following passage by Geras: Overtly denying that there is any being-as-such, any in-itself, in terms of which competing discourses might be adjudicated, they [Laclau and Mouffe] install somewhere out of sight a secret tribunal of truth, mysterious in its ways, which allows them to judge here: as ‘essentialist’, hence wrong about the nature of the world; as economist, thus unable to understand the reality of the social; as determinist, therefore misconstruing history’s actual openness etc.; which allows them to employ a language of external reference, of objectivity, of truth... which allows them that long, that tireless, that never-ending ‘this is how it is’ with which the relativist tells you why you cannot say ‘this is how it is’, thus sending knowledge and consistency to the devil.  In a move reminiscent of ones made by Kate Soper, Diana Fuss, and other feminist 26 Geras has turned the self-declared anti-essentialist into an unwitting writers, essentialist. Geras thereby touches the tip of a potentially fruitful question, but prefers to return to his now practiced scourge rhetoric. The question is how has this transformation been made possible? How has Geras managed to read a supposed anti-essentialist as an essentialist? In more simple terms, how can we distinguish between these two positions without throwing up our arms and declaring (somewhat unhelpfully) that ‘you know an (anti-)essentialist when you see one!’?  Chapter Two: Doing Theory  112  It is here that the issue of the limits of modernity emerge most forcefully. And we are suggesting that Lacan’s logic of the signifier, as developed by Jacques-Alain Miller, Slavoj Zizek, Ernesto I.aclau, Joan Copjec, and others, present us with perhaps the most sophisticated theoretical apparatus to date to tackle this issue. Let us see how we might shed some light. In a first approach, we could say that what differentiates utopia from anti-utopia is an implicit acknowledgment by the latter of the constitutive impossibility of the utopian dream; that antagonism is the condition of both its impossibility and possibility; that the social has limits. In this context, the elision that Geras effects could be stated thusly: (utopia)  +  (limits)  =  (anti-utopia)  =  (just another version of utopia). Now, what makes  this line of reasoning plausible can be traced to an incomplete comprehension of the subtle nuances of the logic of the signifier. The problem lies in the ambiguity evoked by the split of the signifier; or, in Joseph Campbell’s terms, by the difference between denotation and connotation. We therefore realize that we are dealing with nothing less than the limits of  language. We know, from Saussure, that each signifier’s signified consists in its bundle of differences from other signifiers. So, we might attempt to introduce a new signifier to  denote the limit of the social. But a problem immediately arises: since this new signifier derives its meaning from its opposition to all other signiflers within the social system, it is an internal moment of the latter, thereby disqualifying itself as limit. For a legitimate limit must be radically external. (WES, 168-169) And this is true for each and every signifier. So, how to overcome this theoretical dead-end? If we accept that what is internal to the social is meaningful, that which is external will be meaningless. In short, we need a signifier which has been emptied of its content; of its meaning; of its differential identity. In other words, we require an empty signifier. And since we have access only to signifiers within the current horizon of the social, we  Chapter Two: Doing Theory  113  are inescapably led the conclusion that each signifier is constitutively split. Not only does a signifier denote; it also connotes. Perhaps we can now see why Geras is able to read anti-essentialism as essentialism: he moves entirely within the dimension of denotation; and like a twodimensional creature well-set in its ways, he is insensitive to the subtle presence of an (external) third dimension. We are thus clearly dealing with asymmetry, not symmetry as Geras would have us believe. Anti-essentialism is not simply the symmetrical reverse of essentialism. Rather, it is its negative supplement. In a similar fashion, we could also say that postmarxism is the negative supplement of marxism; or that postmodernism the negative supplement of modernism. And this implies not a rejection of modernism, but  rather the separation (in the Lacanian sense) of modernism from its essentialist ties. Indeed, it is the very modes of modernism (reason, critical thought, etc.) that have made such advances possible. And what’s more, it is the anti-essentialist epistemology that will ensure a more robust and secure support of modernist values and themes. The transition is subtle, but full of progressive potential. Thus, the line separating a sublime limit from a pathological content is indeed fme. But it is constitutive. (It is responsible, as we noted before, for transforming ‘postmodernism’ from a sublime object to a disgusting protuberance; or vice versa.) In this sense, then, it is also a gaping and unbridgeable chasm: the Lacanian real. The corresponding anti-essentialist ethics would therefore suggest a full assumption of this split. It is simply not good enough to insist that Marxism’s view of the category of knowledge was never of an absolutist nature; that its contents are “always provisional” and “subject to revision in the light of new information” that they are therefore “open to ‘pluralist’ discussion and criticism;” 27 when, with the same breath, one aspires to “cognitive objectivity” and an unwavering stance on the permanence and selftransparency of a category like ‘class’ or ‘natural phenomenon’; that categories exist which are the ‘true’ and, therefore, legitimate explanatory matrix in our historico-material  Chapter Two: Doing Theory  114  universe. This has already been clearly pointed out by Laclau and Mouffe. “Thus,” they argue, Geras “says that to call an earthquake an expression of the wrath of God is ‘superstition’, whilst calling it a ‘natural phenomenon’ is to state ‘what it is’. The problem is not, of course, that it does not make perfect sense in our culture to call certain beliefs ‘superstitions’. But to counterpose ‘superstitions’ to ‘what things are’ implies: (1) that world views can no longer change (that is to say, that our forms of thought concerning the idea of ‘the natural’ cannot be shown in the future to be contradictory, insufficient, and therefore ‘superstitious’); (2) that, in contrast to men and women in the past, we have today a direct and transparent access to things, which is not mediated by any theory.” (PWA, 89-90, note 17)  So, in answer to our posed question, namely, how can we distinguish the essentialist utopia from the anti-essentialist anti-utopia we are forced to answer: with difficulty. But can we not say that, thanks to Lacan’s logic of the signifier, we have advanced beyond the exasperated response ‘you know it when you see it’? If we were to reply that the distinction is based not so much on what you say but on how you say it; and if we simultaneously recall our foregoing theoretical detour establishing the constitutive split of the signifier; could we not say that the distinction has been scaled up a notch or two in terms of focus?  Chapter Two: Doing Theory  115  Fixity versus Nihilism: Anatomy of a false dichotomy  As we have seen, the constitutive ambiguity subverting every identity makes theoretically unsound any attempt to establish, on an a priori basis, the defmitive criteria for specific categories of thought. In the minds of many, however, the admission of this ultimate historicity of being is only the first step in a chain of events which leads inexorably to ultra-relativism and nihilism  --  an admittedly sordid state of affairs in which  judgment and justice have become all but impossible. In this section, we shall expose the false reasoning that such a position entails by showing how it is caught within the debilitating discourse of modernism; in other words, by showing how such conclusions can be drawn only by turning a blind eye to the limits of a modernist epistemology. Discussion of this issue will inevitably trigger explorations into the hackneyed dichotomies of freedomIdeterminism, subject]structure, and the like, it will also evoke its sister issue: What are the implications for a progressive-programmatic politics? Though references to this latter issue will be inevitable, we hope to establish our present investigation primarily on a theoretical level, leaving the problem of strategy to a later chapter. Here, we intend to concentrate on the mechanics of identification and how, in the context of law, this might deepen our understanding of the nature of our sub-title’s dichotomy. Like so many other arguments centred around the postmodern debates, participants of most political persuasions proceed by locating themselves firmly on moderate grounds and dismissing (straw-man) counter-arguments as extreme. As was the case in the run-of-the-mill disputes among essentialists and anti-essentialists, this leads to little or no advance in our understanding. Mmost no theoretician holds a position of unqualified relativism or unqualified determinism. So, to establish one’s theoretical stance as moderate solely on the reactionary recoil from either extreme is no more than an empty gesture. Rather, the crucial task is to define more precisely what makes possible  Chapter Two: Doing Theory  116  the distinction between the two poles in the first place; what, exactly, is meant by a ‘moderate’ position? And to do this, let us begin by reconsidering the process of identification. As we may recall from chapter one, identification is driven by the constitutive lack of every subject. The important question is how this lack gets filled. In the absence of any hint of undecidability, the filler must already be predetermined. In this view, other signifiers which present themselves as available and, therefore, possible ‘filler candidates’ are superficial and unnecessary. They only serve to conceal the ‘true’ operation of the social. This would mean, in turn, that the original lack of the subject was also an illusion, for if its filler is determined in advance by a governing force, this lack would merely be an internal moment of the already constituted identity of this governing force. ‘Choice’ is thereby relegated to the realm of false-consciousness and is rendered impossible in a genuine fashion. On the other hand, in the absence of any hint of determinism, the filler is not now drawn only from what signfiers are actually available. Rather, it is drawn from what is  logicoily possible. Moreover, the lack of any determining force means there can be no criteria of choice. We are simultaneously confronted with an expansion of possibilities and a vanishing criteriology. We are again presented with the impossibility of choice. We conclude, therefore, that the poles of our dichotomy are rendered identical in effect. Both lead to the absence of freedom inasmuch as the latter is characterized by a meaningful capacity to choose (and not, for instance, by a Spinozist consciousness of necessity). In engaging with the modernist modes of analysis we have come up against a clear impasse: an attempt to grasp each extreme ‘on its own’ without reference to its Other proves to be a meaningless exercise. Like a mobius strip, every identity is split into two incommensurable sides (local property) which are, nevertheless, united by the same surface (global property). Ernesto Laclau describes this equivalence of poles in terms of autonomy and determinism:  Chapter Two: Doing Theory  117  [T]he notions of total determination and total autonomy are absolute equivalents. The concept of autonomy is only useful or rather, meaningful when neither of the two extremes (equivalents) is achieved. For if an external intervention is experienced as an interference in the development of a certain activity, we can indeed propose the need to autonomize that activity in terms of the intervention interfering in its development. The determination by the interfering force is clearly an external intervention in this case, since it is resisted by the person on whom it is practised. Without interference, then, autonomy does not exist. The degree of autonomy may vary, but the concept of total autonomy is devoid of all meaning. In this sense, autonomy will always be relative, since if one force has the power to interfere and the other the power to resist, the two will be partially effective and neither will manage to predominate exclusively. The field of relative autonomy is therefore a war of position in which neither of the two participant forces can achieve absolute victory. This once again confirms what our whole analysis has asserted: that the field of social identities is not one of full identities, but of their ultimate failure to be constituted. A realistic analysis of socio political processes must therefore abandon the objectivist prejudice that social forces are something, and start from an examination of what they do not manage to be. (NR, 38) --  --  We see, then, how postmodernism, in the guise of anti-essentialism, complicates our modernist picture. We can no longer begin from the assumption that identities are fully constituted. But, in so complicating matters, postmodernism opens up the space for the freedom so dear to the ‘commonsensical’ moderate position. The two poles of the opposition point to separate, though mutually dependent, antagonistic forces. Each relies on the other for meaningful existence, but at the same time is not fully determined by the other. And every identity is traversed by this antagonism which, as we have said, is  constitutive. This is why the category of contingency best characterizes antagonism. It harbours, within its midst, a constitutive tension. A relation between two elements is contingent inasmuch as each element’s meaningful existence is dependent upon the other; and inasmuch as the particular Other is not necessary. Each identity is always inhabited by its constitutive outside. And it is this negative supplement that is the driving force of both its existence and its subversion. So we have the paradoxical result that an identity exists only insofar as it is blocked and can never be fully constituted.  Chapter Two: Doing Theory  118  Let us recap. Essentialism is characterized by an attempt to specify in advance, and in exhaustive detail, the identity of a person, object, or idea. Anti-essentialism shows the manner in which an identity’s existence relies on an excluded Other. (And as we have argued, this ‘showing’ can only take place within the modernist horizon but has the effect of pointing to that horizon  --  a pointing or ‘showing’ which is characteristic of the  postmodern ethos.) Anti-essentialism exposes the relational (and contingent) character of all identity. Identity, in other words, cannot help but be relational, even though the specifics of relationality (and the excluded Other making such relationality and identity possible) cannot be specified in advance. It is in this sense that we can say that identity is rooted. Not in some specifiable essence (list of properties or features), but rather in its subversive Other. And we can now see why absolute relativism or nihilism as a criticism aimed at anti-essentialism misses its mark. It is only from an essentialist perspective that the threat of nihilism holds sway. If identity is to be found and defined in its immediate, inherent, and identifiable characteristics, a modification of those characteristics will imply eradication of that identity, no matter how minor the modification. And if each and every identity is subject to doubt and modification, we are inevitably left with total relativism and nihilism. (We should point out, too, that a frequent positivist variation on this theme consists in positing a totalizing essence but a core essence or meaning, the counterpart to which, in legal jurisprudence, takes the form of a penumbra/umbra distinction vis-a-vis legal rules. But this attempt does not resolve anything; it merely pushes the inquiry a further step back. In other words, it remains, at least theoretically, thoroughly essentialist.) By contrast, the anti-essentialist position holds that each and every identity always relies on a repressed Other (unconscious, constitutive outside, etc.). So, a modification of characteristics implies a shfting of identity, not its radical annihilation.  Chapter Two: Doing Theory  119  So far, we have exposed the traditional moderate who positions himlherself in reaction to one or other extremes to be standing on theoretically unsound ground. In other words, modernist moderates have not been able to specify directly (and fully assume) the ambiguous space they occupy because they are still wedded to an essentialist world-view. But, perhaps, we can further speculate as to where the appeal to a nihilistic threat owes its persuasiveness to. Can we not say, for instance, that unprecedented technological growth accompanied by staggering rates of social change might have something to do with it? There is, in other words, a mushrooming feeling of uncertainty as the openness of the social is revealed in all its nakedness. We are confronted with a very powerful desire for Order. What we have, in other words, is the emergence of the subject as lack in the form of an empty signifier. We have come ‘too close’ to the ‘truth’ of our being, our lack, and we immediately seek to distance ourselves from it again by filling it. The danger arises when we are still caught in a modernist frame of mind whose point of reference is Truth and Reason, or in a premodernist frame of mind whose point of reference is Truth and God. Do we have to remind ourselves of the constant news coverage that suggests an unabating resurgence of nationalism, religious fundamentalism, racism, etc.? Far from indicating a regression to the past, this announces a possible  fz#ure. And the logic of the signifier offers us a means to apprehend this ‘evolution’. That is why the epistemological common(non)sense of anti-essentialism needs to be theorized more precisely in terms of let’s say, radical democracy. We need a theoretical grounding which will permit us to more fully assume our split and its accompanying anxiety. We might even risk the thesis that our historical epoch of late capitalism marks a transition in our society from a very recent history of tradition and order to, what in the domain of complex adaptive systems is referred to as, the ‘edge of chaos’  --  a state of  maximum flexibility and adaptability. In this sense, we would suggest that the science of  Chapter Two: Doing Theory  120  complex adaptive systems possesses a panoply of theoretical concepts that are of direct relevance to social theory. And a more sophisticated theoretical framework usually translates into a more fine-tuned practical outlook.  The crudest practical form of such (anti-essentialist)  theoretical ruminations, of course, is the election.  What are elections if not an  acknowledgment of the (democratic) empty place of power, 28 of a sense of nonpermanence, of interrogation, of possibility, of deferral? Now, perhaps, we can begin to understand the significance of such theoretical tools in developing this sensibility further. We need to deepen it and make it part of a political project of radical democracy so that we may increase our chances of foreclosing a resurgence of totalitarianism. We see, also, why Laclau and Mouffe can claim that it is the failure of full identity consolidation that makes freedom and politics possible. For the complete realization of a substantive democracy erases its political-hegemonic origins by misrecognizing its substantive content for the form of fullness it aspires to. And is this not exactly the same motif represented by the subject-structure dichotomy? There is subject inasmuch as the structure fails to achieve full identity with itself. There is autonomy inasmuch as there is no determinative ‘last instance’. Failure marks the emergence of the subject as lack and its accompanying anxiety for, and anticipation of, fullness. Successful identification implies the retroactive assumption of a subject position veiling the originary lack. And this entails a ‘forgetting’ of origins  --  a  ‘forgetting’ that comes in the form of a repression of the alternative historical trajectories that presented themselves as possible at the time of identification-decision. And this brings us nicely to the topic of power relations....  Chapter Two: Doing Theory  121  On Power, Resistance, and Structural Constraint  Modernist discourse operates on the assumption that a discoverable causal nexus exists that animates the development of our social universe. We have already seen the debilitating consequences of such a determinist view. But we also saw how such a position is inhabited, and thus salvaged, by its negative supplement. It is for this reason that Laclau can argue that Power, in the singular, does not exist. (MPI, PR) This is due to the presence of power’s Other: Resistance. Each relies on the other for its existence. Each cannot fully determine the other; which means that only powers, in the plural, exist. Thus, it is a Power’s failure to constitute itself as Power that creates the space necessary for the emergence of a surface onto which resistance (or a crisis of legitimacy) can be inscribed. Yet again, we find that conflict and antagonism are irreducible. Whereas power moves in the direction of reducing and concealing the number of possible historical trajectories, resistance moves in the direction of increasing and making visible the number of possible historical trajectories. We can conclude, therefore, that inasmuch as power operates to constrain behaviour by reducing the number of available options, structural constraint has its extimate limits. The impasse in the debate framed by such considerations (ie., the debate that pits determinism against autonomy) could be diffused by a displacing question: To what extent does the pole of structural constraint dominate the social field at the expense of a potentially more open and political alternative? In other words, the crux of the impasse seems to reside in the extent to which there is openness of the social. Let us try to be more specific. What often elicits the ire of structural marxists is the emphasis placed by postmarxists on the contingency with which historical events are linked and decisions made. If, they argue, contingency is indeed so pervasive why is it that change for the ‘better’ is slow (if at all) in coming? Why are so many patterns of oppression so visible and predictable? The postmarxist rejoinder, however, consists not  Chapter Two: Doing Theory  122  of denying these claims. On the contrary, such social critiques are fully assumed. Indeed, the apparent paradox is that such criticisms are made possible by acknowledging the constitutive contingency of every identity. It is precisely because specific identity formations are not necessary that a critique of the status quo is conceivable. In other words, an unwavering insistence on a historico-material determinism unwittingly precludes the utopia that traditional marxists so aspire to. Instead, we must fully theorize how it is possible to on the one hand acknowledge that social behaviour may be predictable and oppressive and, on the other, that it need not be so. So, the question becomes how to displace and dissolve oppressive structures from within an anti essentialist frame of reference. 29 Let us take the example of sexual abuse/harassment in the workplace, an example which will also permit us to link our seemingly abstract account of power (as antagonistic and repressive) to the more usual, but less well defined, notions of ‘power relation’ or ‘relation of dominationloppression’. The relevant question in this case is what makes possible the emergence of the category ‘sexual harassment’ in the context of (to be more specific) employer-employee relationships? We can attempt a rough answer as follows. First, one person (the employee) is subject to the decisions of another person (the employer). Second, the employer is sexually attracted to the employee, and sexual advances are made. Third, the sexual advances made by the employer begin to be seen as inappropriate, offensive, even threatening by the employee. Now, it is important to realize that, though these moments may together constitute a threshold test in female sexual harassment claims made against males, they are not linked to each other in any essential way. In other words, having authority over someone does not necessarily lead to sexual attraction which does not necessarily lead to sexual advances which does not necessarily lead to an uncompromising insistence. However, a series of historical events and ideologies, whose contingent roots have been erased, have ‘conspired’ to make sexual harassment cases more numerous.  Chapter Two: Doing Theory  123  First, we had (and often still have) a particular family ideology which stresses the importance of the man’s role as provider. (This ideology plays out in very many ways and is often linked to other institutional ideologies such as the Church.  Some  stereotypical factors militating against women who do apply for jobs include: too emotional, easily distracted, pregnancy/child liabilities, etc.) It is not surprising that the overwhelming majority of positions of authority are occupied by men. Second, we have a whole semiotics of sexual arousal fed by mass media, pornography, personal experimentation, and so on, which fix the parameters of what constitutes sexiness. Third, we have a particular male ideology which fosters the belief that men have a virtual right to sexual gratification; that sexual prowess is a sign of virility and a badge of pride; that women really do want sex, even if they seem to be protesting. In addition we have a public discourse of sexual equality which relegates issues of sexual morality to the private sphere. Thus, we see that the contingent coincidence of these moments at a particular historical juncture make possible, for example, the phenomenon of sexual quid pro quo. We see that power, in the sense we have been using it, does not necessarily comprise acts of physical abuse per Se. Rather, it derives from the repression of the other possible options for action that presented themselves prior to the master’s act of decision-making (as in hiring or firing), ie., at the moment the discourse found itself in the hysterical mode. Progressive critique, therefore, could proceed by uncovering the contingency of a series of such acts, and by presenting an alternative set of options. To return to our example, one of the standard progressive strategies consists in simultaneously exposing the series of events which culminate in males dominating the job market and promoting, say, an affirmative action plan to encourage female entry into the workforce, especially in management positions. Alternatively, or in addition, we could, as Duncan Kennedy does, attempt to dissolve the perceived necessary link between sexual arousal and sexual gratification; ° in other words, to foster an attitude whereby, for 3  Chapter Two: Doing Theory  124  example, sexy dressing is seen as an end in itself. Men would then, so the logic goes, have an erotic interest in refraining from sexual abuse by allowing women (with men’s input) to experiment with dress. What such strategies have in common, then, is the attempt to loosen the seemingly necessary ties between several sequential moments by exposing their contingent articulation. But, here, we must issue a caveat. For mere recognition/acknowledgment of the histoncity of being does not necessarily result in change. We must remember that the elements present in the contingent articulation themselves each stand for, or abbreviate, a whole array of contingent-turned-necessary constellations. This, by the way, also applies to the creation of ‘interests’: vested interests emerge as a result of a long and tortuous history whose contingent traces are erased by social sedimentation. And the deeper these roots go, the more the deconstructive work that needs to be done, and the longer it will take before it enters our consciousness so as to facilitate change. Sensitivity to the mechanics of such a transition (ie., from the sedimentation of the social to the openness of the political) puts us in a position to critique liberals such as Camille Paglia who, in the wake of the Hill-Thomas affair, for instance, suggests that women who are subject to sexual harassment should merely ‘pick themselves up and leave’; and Alan Dershowitz who suggests that the battered women syndrome is an injustice perpetrated on behalf of women who are stupid enough not to leave their husbands. These liberals are typical of a breed of intellectuals who subscribe to a radical (a)historicism (as opposed to historicity) in which synchronicity (meant to connote spatiality) completely overpowers diachronicity (meant to connote temporality). They also assume an a priori fully constituted identity which simply needs the will power to access the strength necessary to leave an inhospitable situation or take a case to court. But this, again, is symptomatic of current liberal historical amnesia. To avoid such pitfalls, it is necessary to appreciate the very material weight of history, ie., the still considerably heavy social sediment. Progressive reforms must,  Chapter Two: Doing Theory  125  therefore, be sensitive to what we could call their ‘depth reach’. The deeper into the social sediment reforms reach, the greater the potential dislocatory effects. We could mention at least two factors that should be taken into account under these circumstances. The first is that the presence of, say, equality reforms may have the unintended effect of concealing the by definition uneven character of the social. And here we can discern the roots of the traditional marxist social critique. The second is the potential of a backlash stemming from the sedimented interests that such reforms attempt to disrupt. It is here, perhaps, that we can appreciate Hegel’s dictum concerning the ‘silent weaving of the Spirit’. In other words, he suggests working hard at the ‘edges’ of interests; working diligently to disrupt seemingly far-removed assumptions and presumptions underpinning an interest; then, when all is changed but the name, to formally issue the performative. (EP, 66-66) Now, the increased pace of social change will not only create multiple dislocations but will also make visible the radical histoncity of being and will open up new political spaces where none existed before. New possibilities will emerge and historical trajectories will be more fluid. We can now, perhaps, see what Laclau has in mind when he suggests that the more dislocated a structure is, the more the field of decisions not determined by it will expand. The recompositions and rearticulations will thus operate at increasingly deeper structural levels thereby leading to an increase in the role of the ‘subject’ and to history becoming less and less repetitive. (NR, 39-40)  And what we must keep in mind at all times is that the undertaking of progressive strategies must not lead us to believe that we act as fully constituted agents upon, and without being modified by, a partially constituted society in an attempt to suture it.  Let us now draw this section to an end by tying our dislocatory comments to our notion of power as repression. As a start, we must acknowledge that the space for change  Chapter Two: Doing Theory  126  does not emerge from a fully constituted will residing in the agent and exerting pressure on society. But neither does it emerge through a fully constituted society exerting pressure on an agent. Rather, change becomes possible only with the failure of identityconstitution. As such, the subject-as-will is always evanescent; it always was or always  will have been. In other words, change only becomes conceivable when the structure, of which the agent and society are two moments, is dislocated. The incidence of an external discourse supporting a right to be free from harassment upon a relation of subordination converts this into an antagonistic site of oppression. It is the realization that things could be otherwise (and better to boot) that accounts for the transformation of this relation and opens the space for critique. In short, we have the emergence of the subject as lack  --  a  lack which wishes to be appeased by a signifier other than the one so overwhelmingly on offer and which we now read as, for example, ‘submissive female’. Thus, we could say that the power inherent in the suppression of alternative identities is exposed and another little bit of the social sediment becomes politicized. We have the social equivalent of what Lacan calls the return of the repressed: each historical juncture is based upon a repression of alternative trajectories. And, as all identity is ultimately unstable, precarious, and subject to subversion, there will always come a time when the real (ie., the radical unaccountability-contingency of a relation) will erupt.  Chapter Two: Doing Theory  127  On the (im)possibility of Justice  Let us now consider the vexing jurisprudential question as it is traditionally posed: Does the judge discover the law, or does sfhe make it? Intuition tells us that it is neither one nor the other but, somehow, both. The problem arises when an attempt is made to give a more complete theoretical account of this paradoxical relation. Let us begin by noting that, as has been shown by Stanley Fish, 31 the legal liberal Ronald Dworkin, not unlike H. L A. Hart, relies on the notion of a core textual meaning that constrains the interpretive activity, allowing creativity to play itself out only at the edges, the ‘penumbra’. And this despite Dworkin’s explicit efforts to displace constraint from text to practice. For Fish would readily accept Dworkin’s explicit approach, if only he were to follow through with it. As is his common practice, Fish has recourse to an interpretive community, itself historically contingent, as the sole constraining mechanism in the interpretation game. Thus, as Leonard Kaplan points out, “Fish responds that even the most radical judge, right or left, is constrained not so much by the text but by what the practice of judging has come to mean.” 32 In this view, Dworkin’s appeal to a ‘core’ meaning merely highlights the vestiges of an outmoded essentialism that have yet to be shed. Can we not see the relevance of the debate between the structural marxists and postmarxists to this legal issue? On the one hand, Dworkin, recognizing the evident presence of constraint, attempts to track down its source. Though he explicitly places it on the shoulders of judicial practice, the irreducible negative supplement causes his own scholarship to seif-deconstruct, exposing an alternative source: the text. On the other hand, Fish argues for the ultimate historicity of all being, including the interpretive community which purports to ground the text. It seems that it is this last step that Dworkin is unwilling to take. And this explains the inevitable ‘revenge of the supplement’. By denying the contingency of the  Chapter Two: Doing Theory  128  judicial practice itself, Dworkin is forced to regress back into a search mode whose aim is to uncover an ultimate ground, a settled shared meaning. Hence Fish’s claim that Dworkin is a positivist. Now, how exactly can psychoanalytic theory, via the logic of the signifier and the mechanics of identification, help us better comprehend the false dichotomy between  discovering and making law? Let us begin with discovery. Here, the presupposition is that the item to be discovered is already fully constituted as an identity, and that the discovery process itself leaves it undisturbed. Likewise, in the case of making the law, the presupposition is that the maker is fully constituted as an identity (ie., has a fullyformed idea of what is to be created) and is unaffected by the process of creation. If we recall, however, that every identity is constitutively split, traversed by antagonism, the distinction between discovery and willful creation becomes problematic. We immediately see the relevance of our earlier discussion on the false dichotomy determinism/nihilism. Both poles have spatial-structural extent and completely miss the dimension of the temporal-subject. So, what exactly happens when a judge makes a decision? How can we conceive of her role? We could say it comprises an attempt to settle a dispute between two parties, to intervene in a relation which has become antagonistic in the strict sense of the term. The aggrieved party (feminist, sexual minority, environmentalist, tenant, ethnic minority, etc.) brings a case before the court because a perceived injustice has been perpetrated by the accused party (patriarch, heterosexist, logging company, landlord, racist, etc.). The judge, therefore, just like the place of power at the moment of a political election, is empty. S/he serves as a surface of inscription onto which demands and counterdemands are inscribed and fight for hegemony. The act of decision-making hegemonizes one demand at the expense of others. The decision necessarily represses an alternative set of possible outcomes whose actualization would inevitably have led to a different historical  Chapter Two: Doing Theory  129  trajectory. Thus, for example, a heterosexist conception of the family might achieve hegemony over other possible conceptions, with all the consequences that entails. The difference between a judicial decision and a political election, however, is that the former, unlike the latter, must be backed by clearly articulated and documented reasons. It is here that the DworkinlFish debate becomes relevant, for the issue is how far does the principle of stare decisis (at least in common law jurisdictions) go in curtailing unfettered judicial activism? Or, to put it differently, how does the doctrine of precedent make an outcome more predictable than, say, a decision based on a stochastic electoral process? To explain this difference, we must return to a previous discussion in which we implied the Husserlian distinction between sedimentation and reactivation.  The  sedimented nature of the social refers to the unquestioned and natural aspect of our quotidian practices. In other words, it refers to those activities whose status as hegemonic has not been pointed out and can therefore not even be conceived as such. Such activities are strictly habitual: we do them because we’ve always been doing them; because it belongs to tradition; because ‘that’s the way things are’. Reactivation, on the other hand, refers to the act of putting into question; of exposing the contingent nature of a sedimented social formation; of saying ‘things could be otherwise’; of exposing the political in the social, the contingent in the necessary. (And can we not, here, see how the sedimentation/reactivation opposition closely and insightfully corresponds to the traditionally dichotomized opposition of factlvalue?) We can see, therefore, that what is responsible for sedimentation (ie., the erasure of the political character) is repetition. Now we can appreciate the relevance of the citational practice of the judiciary, which we alluded to in the first chapter. The function of the doctrine of precedent is nothing short of the repeated veiling of the political. This explains why common law reform has historically been, at best, incremental. It has also been responsible for a good deal of the mystique of law; that reason and rationality could  Chapter Two: Doing Theory  130  deliver an indisputably correct decision (let us recall Dworkin’s Hercules); that the judge’s role was to discover the true workings of the law and objectively deliver an inevitable outcome. But, alas, things are not so simple any more. Rapid social change spurred on by burgeoning new knowledges and diminishing geographical distances has been responsible for the pent-up tension between new-found mores and old-style conventions. It has brought into high relief the political nature of the judicial process. And it is no surprise that the Legal Realists and their heirs, the Critical Legal Scholars, whose task it was precisely to uncover such politicking, should have emerged just as the fast-paced iterative logic of late capitalism was tightening its grip on developed societies. We could even say that the judicial penchant for precise legal logic made such a task easier. This is because, among other reasons, judgments sharpened to a point their inevitable inconsistencies and circularity, especially when accompanied by dissenting decisions which claimed the same ‘objective’ laws as their source of reasoning. Though many die-hards still defy such trends by staunchly defending the sanctity of the Law, cracks are becoming too wide for even the most sophisticated cover-up job. Social science data, for instance, are gaining increasing legitimacy as constitutive of legal reasoning. Structural constraint through citational practice is further threatened by a growing number of increasingly antagonistic, split decisions. All these factors translate into a gradual erosion of faith in our judicial system’s ability to transparently access and justify legal decisions. Explicit references to past practices in an effort to ground our reasoning will no longer hold water when such sedimented activities are themselves being reactivated and struggled over. Think, for instance, of the attempt to justify rape by pointing to provocative dress codes; or of imputing consent in the lack of physical resistance shown by the victim. Each attempt to ‘pass the buck’ for the purposes of grounding a decision fails because the ‘natural’ meaning of these social practices  Chapter Two: Doing Theory  131  (provocation, lack of resistance) are abbreviations of other sedimented discourses/ideologies which are themselves being contested. Thus, together with an increasing rate of social change, we see that the ‘depth reach’ can only extend to even deeper levels of social sediment, thereby making legal decision-making (and history) less predictable. Law is being stripped of its judicially metaphysical dress to reveal raw politics. In short, late capitalism has unwittingly announced what can now only be considered obvious: Law’s Empire has no clothes.  We can now see why justice, just like the democratic ideal, is impossible. It’s full realization is synonymous with its dissolution. Why? Because justice implies criteria of judgment. But justice also implies absence of bias, which is just another name for criteria of judgment. We are thus led to accept the existence of an irresolvable paradox: justice is possible so long as its final realization is radically impossible. In other words, its impossibility is its condition of possibility. And here lies, as Derrida points out, the scandal of the expression ‘enforceability of law’, for it implies a source which can be either just or unjust in its application of the law. 33 What we have learnt, however, is that law can only be tautologically grounded: law is just because it is the law. And any attempt to defmitively ground it in distinct reasons simply conceals the violent and radical exclusion of alternative reasons. But what are the implications for critique? If justice is simultaneously possible and impossible how can we aspire to make any claim about anything? The answer issues forth once we abandon the hope for a transcendent logic which can guarantee our reasoning. Instead, we must fully assume political reasoning as the only defensible (but not guaranteed) approach to legal decision-making. Law, in other words, constitutes but another political forum in which the logic of the signifier is played out to the fullest. In  this view, distinctions between status and conduct, authorial intent and textual meaning, hard cases and easy cases are subsumed under different political strategies which  Chapter Two: Doing Theory  132  establish precarious chains of equivalences in favour of one or another outcome. The drawing of lines and the creation of distinctions, therefore, is always a political act and will always be subject to challenge and redefinition. Now, in order to interrogate more closely the nature of political argument and how that relates to a perceived unjust social landscape we will devote the following short  section to an examination of ideology and false—consciousness.  On Discourse, Ideology, and False-Consciousness  We can make relevant our discussion on structural constraint and justice to the vexing issue of false-consciousness through the question:  Does there remain any  legitimate use for this latter category? False-consciousness, as traditionally understood, relies on some notion of structural constraint This is because it is premised upon an observed pattern of behaviour  --  a shared set of beliefs leading to a predictable set of (undesirable) practices.  These beliefs, then, are presented in contraposition to another set of descriptions which  are offered as the truly genuine and accurate account of how the world operates. The accurate description, therefore, is meant to expose the false-consciousness (false belief) that has been reified into a set of social practices. Thus, for example, property is falsely  treated as a thing-in-itself instead of treating it as an abbreviation of a specific relation between persons. Or rights are treated as empowering an individual or group when, ‘actually’, they alienate them. Or, pornography is used by women and men as sexually liberating when, ‘in fact’, it co-opts them into a male dominating patriarchy. We immediately see the problem with this kind of maneuver. In asserting the ‘true’ state of affairs, there is an appeal to an external reality which is transparently accessible to a chosen few. It makes as much sense to declare one’s certainty as to a  discovered Truth as it does to establish once and for all the meaning of the shark in  Chapter Two: Doing Theory  133  Spielberg’s Jaws. Does it signify the ultimate symptom of capitalism: exploitation? Is it the harbinger of nature’s revenge on civilization’s untamed development? And so on. (TN, 149) Such metaphysics has been the deconstructive stuff that Derrida thrives on. But, more importantly, the danger with such appeals lies in the very real totalitarian temptation  --  a state of affairs that permits no discussion and no dissent. Let us not forget  Stalin, Mao Tse-Tung, MacArthur. So, how can we reconceive false-consciousness so that it may remain analytically (and democratically) useful? Let us, for a moment, recall our discussion surrounding the sedimented domain of the social and the reactivated domain of the political. What constitutes the former are a predictable set of practices brought about by the unthinking (unquestioned) repetition of specific sequences. In order to effect change, therefore, we must first expose the contingently connected steps of such sequences which have only retroactively, and through repetition, been converted into necessity. Offering alternative sequences provides a way to make visible this contingency.  Offering alternative  sequences as the way things ‘really are’, however, achieves at least two things. First, it propagates the myth of the ‘neutral’, ‘objective laws of history’ by keeping the political character of social relations concealed: all we need to do is ‘open our eyes and see things for what they really are!’ Instead of looking at such ‘uncovering’ as a process by which we gain access to a revealed Truth, we must consider it as an uncovering of a truth  --  a  truth, however, which we are willing to fight for. [hf social relations are contingent, it means that they can be radically transformed through struggle, instead of that transformation being conceived as a self-transformation of an objective nature; if power is ineradicable, it is because there is radical liberty that is not fettered by any essence; and if opaqueness is constitutive of the social, it is precisely this which makes access to the truth conceived as an unveiling (aletheia) possible. (NR, 35-36)  Second, the antagonism thus erupted is made brittle because only one option (rather than a plurality of options) is offered as an alternative. A psychoanalytic ‘crossing of the  Chapter Two: Doing Theory  134  fantasy’ would involve exposing this contingency-turned-necessity. A full assumption of the antagonism, in its ultimate meaninglessness, widens the horizon of possible interpretive principles. The point is to transform the unthought, unproblematized social practice into a political site; to institutionalize the emergent antagonism by creating conditions for the hegemonic struggle of competing political positions. So, does ideological false-consciousness survive as part of our critical panoply? From an anti-essentialist perspective, and in reference to its traditional usage, the answer must be negative. However, again from the postmodern perspective, the notion of falseconsciousness may still have a role to play if reconceived as a practice of giving way to one’s desire; of giving way to the totalitarian temptation; of veiling the split of the sIgnifier; of succumbing to the will to totality; of misperceiving SI and the objet petit a as fused; in short, of striving for closure once and for all. At the same time, however, we must recognize that, as part of our ‘will to critique’, the elimination of ideology is both impossible and undesirable; for without it, even a partially constituted Society would be inconceivable. We shall conclude with Laclau’s rendition of the new roles for ideology and false-consciousness as members of the critical tool-bag. The critique of the ‘naturalization of meaning’ and of the ‘essentialization of the social’ is a critique of the misrecognition of their true character. Without this premise, any deconstruction would be meaningless. So, it looks as if we can maintain the concept of ideology and the category of misrecognition only by inverting their traditional content. The ideological would not consist of the misrecognition of a positive essence, but exactly the opposite: it would consist of the non-recognition of the precarious character of any positivity, of the impossibility of any ultimate suture. The ideological would consist of those discursive forms through which a society tries to institute itself as such on the basis of closure, of the fixation of meaning, of the non-recognition of the infinite play of differences. The ideological would be the will to ‘totality’ of any totalizing discourse. And insofar as the social is impossible without some fixation of meaning, without the discourse of closure, the ideological must be seen as constitutive of the social. The social only exists as the vain attempt to institute that impossible object: society. (IS, 27)  Chapter Two: Doing Theory  135  Notes to Chapter Two  We can see, here, why the objet petit a is impossible top down, even in theory. Sometimes it evokes the 1 order of the real by forever eluding the grasp of symbolic-imaginary attempts to pin it down as essence. Sometimes it evokes the order of the imaginary as the filler which promises to satisfy the demands of a fully-sutured identity. Sometimes it evokes the symbolic Other inasmuch as it points to a particular content-meaning derived from the system of signification, S2. And sometimes it again evokes the order of the real inasmuch as it represents the real Other which is often perceived as the impediment to full identity. Butler, Judith, ‘Poststructuralism and Postmarxism’ (1993)23(4) Diacritics 3 at 9. 2 1bki at 10. 3 Kuhn, Thomas, S., The Structure ofScientjfic Revolutions (Chicago: U. of Chicago Press, 1962). 4 S2 a 1n Lacaman mathemes: 5 Si $ —  hi Lacaman mathemes: 6 1n Lacarnan mathemes: 7 1n Lacanian mathemes: 8  —  cx  $  —  —  S2  $ —  a Si  Si Si —  S2 S2  —  —  $  a  9 S ee also Miller, Jacques-Main, ‘Suture (elements of the logic of the signifier)’ (1977/7 8) 18(4) Screen 24; EP, 42-50; and MPI, 3 1-35. Jacobs, Andrew M., ‘The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 10 1969-1991’ (1993) 72 Nebraska Law Review 723 at 729, citing Wood, Floris, An American Profile Opinions and Behaviour, 1972-1989 (1990) at 584. “[un 1977, 72% of Americans viewed homosexuality as ‘always wrong’, and 74% did in 1989”: Jacobs, ibkL at 730, again referring to Wood, ibiS at 583. ”Scourge rhetors deploy moral (Biblical), medical (plague/sickness), and other debasing (vermin) images 11 to assert the intrinsic evil of lesbians and gays”: Jacobs, ibiS at 729. 12(1986) 478 U.S. 186. “In a sharply divided five-to-four decision, the Court held that Georgia did not violate the constitutional privacy rights of gays by enacting a law that criminalized private, consensual homosexual sodomy”: Jacobs, supra at 737. Justices White and Burger likened homosexual sodomy to “adultery, incest, and other sexual crimes” (at 196) and justified the condemnation of homosexual conduct (which is what defines the homosexual in their view, and which disqualifies them as a legitimate group based on status) by referring to Georgia’s presumed disdain for sexual sodomy and to “Judeao-Christian moral and ethical standards” (at 96). Justice Blackmun, in his dissent, made the case for ‘groupness’ by referring to groundbreaking discrimination cases (such as Brown v. Board of &Juca:ion (1954) 347 U.S. 483 holding racial segregation in public education to be unconstitutional, and Loving v. Virginia (1967) 388 U.S. 1 holding that a Virginia statute barring mixed race marriages was unconstitutional)) and showing that Biblical sensibilities (such as an aversion to interracial marriage) have been subsequently declared immoral. Powell’s deciding opinion walks a fine line between recognizing gays and lesbians as a group on the one hand, and limiting their demands to a right to be free from actual harassment (the presence of unenforced anti-sodomy laws qualified only as potential harassment). The Bowerr decision shows a very definite split between the public discourse of tolerance and the private discourse of disgust. This was “a measure designed to protect lesbians and gays from housing and employment 13 discrimination”: Jacobs, supra at 742-743. Here again we have a shift from the affirmation/scourge type of discourse to the victünageltolerance type of discourse. Though the bill was eventually vetoed, it was debated primarily within the latter matrix. In other words, it was vetoed not because homosexuality connoted immoral conduct, but rather because, though homosexuality was a recognized characteristic of a group, already-existing anti-discrimination legislation was adequate. Danielsen, Dan, ‘Representing Identities: Legal Treatment of Pregnancy and Homosexuality’ (1992) 26 t4 New England Law Review 1453. See also Yablon, Charles M., ‘The Indeterminacy of the Law: Critical Legal Studies and The Problem of Legal Explanation’ (1985) 6 Cardozo Law Review 917, where he notes --  Chapter Two: Doing Theory  136  that “[t]he Critical (Legal Studies] claim of legal indeterminacy may be understood as a declaration that doctrine can never be an adequate explanation of legal results.” Here, he considers the following three groups of cases: 15 1) On employment discrimination: Geduldig v. Aiello (1974) 417 U.S. 484; General Electric Co. i Gilbert (1976) 429 U.S. 125. 2) On foetal protection: Wright v. Olin Corp. (1982) 697 F.2d 1172 (4th Cir.); Oil, Chemical & Atomic Workers International Union v. American Cyanamid Co. (1984) 741 F.2d 444 (D.C. Cir.) 3) On foetal protection: International Union, UAW v. Johnson Controls Inc. (1991) 111 S. Ct. 1196.  Here, he considers the following three cases: 16 1) On hiring policy: Padula v. Webster (1987) 822 F. 2d 97 (D.C. Cu.) 2) On firing policy: Rich v. Secretary of the Army (1984) 735 F.2d 1220(10th dr.) 3) On hiring policy: Jantz v. Mud (1991) 759 F.Supp. 1543 (D. Kan.) Darnelsen, supra at 1507-1508. t7 18 for example, Cooper, Davina, and Didi Herman, ‘Getting “The Family Right”’: 5ee, Legislating Heterosexuality in Britain, 1986-1991’ (1991) 10 Canadian Journal of Family Law 41; Boyd, Susan, ‘Some Postmodernist Challenges to Feminist Analyses of Law, Family and State: Ideology and Discourse in Child Custody Law’ (1991) 10 Canadian Journal of Family Law 79. Jarneson, Fredric, Postmodernism, or, the Cultural Logic ofLate Capitalism (Durham: 19 Duke University Press, 1991). Nomis, Christopher, The Truth About Postmodernism (Oxford: Blackwell, 1993) at 257. 20 lfljJ at 290. 2 pjj at 291. 2 11)W at 291. 23 Geras, Norman, Discourses of Extremity: Radical Ethics and post-Marxist Extravagance 24 s (London: Verso, 1990).  Jbi at 163, as quoted in Norris, Christopher, The Truth About Postmodernism supra at 292. 25 See, for example, RP, 87, and RP, 89, note 16. 26 Geras, Norman, Discourses of Extremity, supra at 162, as quoted in Norris, Christopher, The Truth 27 About Postmodernism, supra at 190. Lefoft, Claude, Democracy and Political Theory (Minneapolis: U. of Minnesota, 1988). 28 In order to visualize our problem more clearly, it might be analytically helpful to distinguish 29 between two not unrelated moments of the structural totality: structural constraints in the operation of agents; and structural constraints in the operation of society itself. In order to illustrate the first instance, we might compare two subjects in identical ‘external’ circumstances. In making a decision, one subject considers more factors than the other. (Of course, it is assumed that each individual’s historical trajectory up to the moment of decision will have been structured differently.) In order to illustrate the second instance, we might compare two subjects with identical historical trajectories up to the moment of decision, but who suddenly find themselves in different ‘external’ surroundings, one offering a greater selection of options to consider than the other. The question then becomes whether we can come up with a useful explanatory framework to account for these differences. Kennedy, Duncan, ‘Sexual Abuse, Sexy Dressing and the Eroticization of Domination’ 30 (1992) 26 New England Law Review 1309. Fish, Stanley, Doing What Comes Naturally: Change, Rhetoric, and the Practice in Literary 31 and Legal Studier (Durham, NC: Duke University Press, 1989). Kaplan, Leonard, ‘Without Foundation: Stanley Fish and the Legal Academy’ (1991) 32 16(3) Law and Social Inquiry 593 at 601. Derrida, Jacques, ‘Force of Law: The “Mystical Foundation of Authority”’ (1990) 33 11 Cardozo Law Review 919 at 925. ,  137  CHAPTER THREE: The Law and Politics of Rights and Identities  In this chapter we will describe the rights debate as it is often discussed in scholarly literature. ,The purpose of this account is to provide a backdrop against which our running (postmarxist) commentary and our subsequent sections (regarding a Lacanian contribution to the rights debate) can be read. And, because the rights discourse is resorted to by individuals and groups as an integral instrument in the representation of their interests and, therefore, in the construction of their identities, we shall also examine in more detail the significance of the political process of identification.  Rights Discourse: The Traditional Debate  The Critique of Rights  The critique of rights has often been associated with the CLS movement. However, because the CLS movement also comprises advocates of the rights discourse, we should, perhaps, identify more precisely the more critical strand. Thus, we could say that the most vocal opposition to, and denigration of, rights has come from a group of  Chapter Three: The Law and Politics of Rights and Identities  138  traditional marxists within the CLS group. We have in mind, here, such scholars as Cohn Sumner, Judy Fudge, Harry Glasbeek, Ronald Weitzer, Jay Feinman, Peter Gabel, and others. And what do we mean by traditional marxism? We mean to refer to a particular stream of marxism which, in contradistinction to postmarxism, aspires to some form of foundationalist grounding, whether in the guise of instrumental determinism or structural determinism, with or without minor modifications of the ‘relative autonomy’ type. We can briefly summarize the main criticisms. First, there is the argument that the state, normally taken to designate the public arena, in explicitly ascribing rights to everyone Irrespective of distinctions based on race, sex, sexual orientation, etc., has made easier the logically illegitimate deduction to be made that equality in the public domain implies equality in the private domain, ie., that defacto equality exists in a realm of de  jure equality. Critics claim that substantive inequality has been made invisible on account of a pervasiveformal equality. In this view, equality issues do not even have the opportunity to arise in the private realm. Of course, this critique, as does the. liberal ideology the criticism is aimed at, presupposes a clearly delineated public realm uncontaminated by the private. We will argue that such a stark distinction is problematic from a postmodern perspective and accounts for an illegitimate elision on the critic’s part. Second, when issues of equality do become visible (ie., pass into the public arena), their resolution is sought through an overwhelmingly formal, rather than contextualized approach.  This has the effect of perpetuating formal equality at the expense of  substandve equality. And finally, that rights themselves are indelibly marked with injustice. In this view, the very form of rights is synonymous with the form of inequity. Rights merely reproduce and deepen material inequalities because it is a direct product of the (unjust) capitalist mode of production. Thus, the debilitating forms of the capitalist mode of production, which cannot help but be expressed through the rights discourse, include individualism with its alienating tendencies, reified abstraction with its’ appeal to  Chapter Three: The Law and Politics of Rights and Identities  139  a dubious neutrality and objectivity, and irreducible indeterminacy with all the incapacitating implications this entails.  Does Public State Neutrality Mean Invisibility of Private Inequalities?  It was Marx who, in discussing the right to freedom of religion in the context of ridding the state of a unique religious identity, pointed out that “[t]he limits of political emancipation are seen at once in the fact that the state can free itself from a limitation without man actually being free from it, in the fact that a state can be a free state without  1 In a private, social landscape where imbalances (whether men becoming free men.” based on property, religion, gender, race, sexual orientation, etc.) are absent, the abolishing of such explicit state allegiances is certainly in accord with the principle of liberty and equality, on both a formal and substantive level. However, in a landscape of deep substantive inequalities, pretences of equality are just that: pretences. In the context of the transition away from the ancien regime, and the state’s pronouncement that the right to property will no longer officially and politically be confined to the few and privileged but, rather, available to all, Marx went on: mhe political annulment of private property not only does not abolish it but even presupposes it. The state abolishes distinctions of birth, rank, education, and occupation in its fashion when it declares them to be non political distinctions.... Nevertheless the state permits private property, education, and occupation to act and manifest their particular nature as private property, education, and occupation in their own ways. Far from overcoming these factual distinctions, the state exists only by presupposing them. 2  Similarly, in the feminist and race contexts, the state has divested itself of its 3 and white supremacist forms by abolishing all explicit references to distinctions sexist  Chapter Three: The Law and Politics of Rights and Identities  140  based on such notions. Now, rights are no longer withheld on the basis of sex or race. The state, therefore, absolves itself of inequities rooted in race or gender propagated at non-state sites. It relegates responsibility for their ‘resolution’ to the socio-civil sphere, whose uneven terrain provides innumerable opportunities for the development of sites of 4 oppression and antagonism. For example, collective agreements and union constitutions are held to be private and not subject to public scrutiny, despite evidence that such documents often result in large differences between wages received by men and women. “The emphasis is upon whether the impugned act can be identified with the formal attributes of governmental authority and not upon whether it has actually inhibited or damaged the interests of particular citizens.” So, “[bjecause the courts have opted for a liberal approach to the scope of rights and freedoms guaranteed by the Charter, the coercion of privacy remains 5 intact in the employment relation.” We can see, therefore, how a series of equivalential displacements linking state neutrality to the idea that ‘true’ freedom comes from keeping the state at bay, results in a negative conception of liberty, rather than a positive conception of equality. However, this is not to imply that the move to shed the state’s previously explicit biases is not to be welcomed. Indeed such formal recognition is an important first victory that cannot simply be dismissed. Marx was clear on this point: “Political emancipation is indeed a 6 Rather, it is to imply that political emancipation is not the end but great step forward.” the beginning of an uphill hegemonic battle centering around the nodal points of liberty and equality.  Chapter Three: The Law and Politics of Rights and Identities  141  Rethinking the public/private and politicallsocial dichotomies  The above account is typical of the traditional marxist critique of the neutrality of the state. Postmarxism, however, while in agreement with the marxist sentiment that state-centred equality should not be mistaken for non-state-centred equality, would insist on a number of clarifications which may obviate an essentialist slip. What we have in mind, here, is a series of displacements that link equality to form to public to political to state on the one hand, and equality to substance to private to social to non-state on the other. Thus our agreed-upon observation that non-state inequities may persist/exist even if we accept that state inequities have been eliminated is illegitimately transformed (and causing a divergence of opinion between traditional marxists and postmarxists) into a desire for substantive equality and a condemnation of  fimnal equality. Our (postmarxist) quarrel centres on the formal/substantive dichotomy. The reason for this derives from the fact that it often serves to import a traditional understanding of false-consciousness. Thus, formal equality evokes a sense of illusion and false-consciousness, and substantive equality functions to promote a sense of ‘realness’ and truth. As we have argued elsewhere, however, a postmodern anti essentialist approach forces us to revise such a conception in favour of one which seeks to establish a difference between closure, certainty, and truth on the one hand; and openness, undecidabiity, and hegemony on the other. But how exactly was the illegitimate divergence made possible? It is here that the essentialist tendencies shared by both the liberals and their (traditional) marxist critics strike the eyes. For both disputants presuppose a fully constituted public space that can clearly be delineated from the private space, and whose demarcation coincides exactly with the separations implied in the pairs political/social and state/non-state.  The  equivalential chain that links, and then opposes, each side of these dichotomies is strictly  Chapter Three: The Law and Politics of Rights and Identities  142  articulatory and thus hegemonic. It is an articulation that even ‘moderate’ liberals, such as Rawis, rely on in order to expunge issues of religion and sexuality from the public  domain. What a postmarxist approach teaches us is that every hegemonic articulation is subject to a constant signifier-signified slippage whose propelling overdetermination allows it only two degrees of freedom: fast-forward, or slow-forward. Slow rates of  social change have led to sedimented and unquestioned meanings. Slow-forwardness is thus misperceived as static and essential. Increased rates of social and technological change have resulted in increased tensions  --  tensions which are constantly prying open  more and more sedimented social spaces to politically contested horizons. By disarticulating this long-surviving chain, we find a whole new set of possibilities opening up. The state no longer has to be identified with the political or even with the public. This means that discriminatory hiring practices conducted in the ‘private’ sphere can be legitimately contested on a political level. Disarticulating the state from the political also means that, though state apparatuses (legislative, executive, judicial) have been, and still are, useful avenues for political debate and contestation, they need not be the only ones. New arenas for hegemonic struggle can be invented and established. But we must remember that the process of disarticulation is not something that has sprung up out of logical necessity. Of course, it was always afready logically possible; but it also has a specific historical origin, namely the rapid rates of growth and expansion and the accompanying proliferation of new social movements so characteristic of a late capitalist society. So, where does that leave the dichotomies we were so ready to deconstruct? Certainly, we are not suggesting that we can do without them. Rather, we are offering an alternative approach to conceiving the split. Instead of attempting to classify relations as either public/political or private/social on an a priori basis, perhaps we can entertain the notion that each element of the pair relies on the other for its existence, and that how  Chapter Three: The Law and Politics of Rights and Identities  143  exactly each becomes entangled with, or connected to, other signifiers is a matter of historical contingency and contextual specificity. How else can we explain the feminist motto that the ‘personal is political’? What was always taken to be of a private ilk (the personal) has suddenly been dramatically transformed into a site of political contestation. The political does not entail a necessary link to the state. Indeed, as it is often argued, it is the very absence of the state in, for example, spousal abuse cases that has spurred political debate. Nevertheless, the fact remains that, in contemporary society, most avenues of political satisfaction lie at the doorstep of the state (whichever of the three branches of government one chooses). Thus, issues in which the state is prima facie absent must, in the end, always be converted into ones in which the state is implicated: the state becomes present through its very absence. And this ‘jumping through the liberal hoop’ will be necessary unless and until new nonstate fora (for instance, liocal and national media-mediated, interactive, issue-specific, polling and voting) or quasi-state fora (minimally bureaucratic, administrative tribunals and ad-hoc commissions) become more accessible. We see, therefore, that what is political cannot be determined in advance. This is because the political is about contested meanings, and meanings are overdetermined and constantly evolving.  On a general level, we could say that the political refers to  interrogation, contestation, and hegemony. The social, on the other hand, refers to an unquestioned mode of existence, to what is assumed, uncontested, habitual. Each of the political and the social (and any other such dichotomy, for that matter) requires its opposite for support: the social tries to hegemonize the political, and the political constantly disrupts the social. They exist in a permanent and irresolvable tension in which the social sediment is temporally disrupted by, and spatially dominating of, political reactivation. In this view of things, we can begin to see a basic asymmetry which unsettles our apparently neat compartmentalization. And this has to do with the temporal nature of the  Chapter Three: The Law and Politics of Rights and Identities  144  political, which is, of course, linked to Lacan’s real order and to Laclau and Mouffe’s antagonism. The political as a signifier is at once meaningless and meaningful  --  in other  words, split. A