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

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PSYCHOANALYTIC THEORYiN THE CONTEXT OF A TRANSFORMATIVEPOLITICSbyLeonidas Jason GlynosB.A., The University of Cambridge, 1989LL.B., The University of British Columbia, 1993A THESIS SUBMI1TED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTERS OF LAWSinTHE FACULTY OF GRADUATE STUDIESFaculty of LawWe accept this thesis as conformingto thquied standardTHE UNIVERSITY OF BRiTISH COLUMBIASeptember 1994© 1994 Leonidas Jason GlynosIn presenting this thesis in partial fulfillment of therequirements for an advanced degree at the University of BritishColumbia, I agree that the Library shall make it freely availablefor reference and study. I further agree that permission forextensive copying of this thesis for scholarly purposes may begranted by the head of my department or by his or herrepresentatives. It is understood that copying or publication ofthis thesis for financial gain shall not be allowed without mywritten permission.(SignatureDepartment of LkvjThe University of British ColumbiaVancouver, CanadaDateIIAbstractIn contemplating social change in the context of policy development and legaldecision-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 contemporarylegal and political debates, especially when viewed against the background of thegrowing number of new social movements: feminism, critical race, anti-poverty,environmentalism, and so on. Our thesis suggests that a psychoanalytic approach cansuccessfully contribute to this critical discussion.In a first approach, our thesis develops some basic psychoanalytic categories, suchas ‘fantasy’ and ‘identification,’ to show how Lacan’s view of the subject as a lack yieldssome surprisingly fruitful insights. What we have in mind here is his view that thesubject is not a fully-formed individual with a clear and undisputed will. Rather, I.acansuggests 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, howpsychoanalytic ideas can further the debates over ideological critique and ‘false-consciousness’.Now, in making our analysis relevant to contemporary political and legalscholarship, we have applied our theoretical framework to the discussion of the rightsdiscourse. We find that many of the impasses centering on the public-private issue; onthe formal versus substantive opposition; on the question of whether rights reproduce the111capitalist mode of production; can be usefully portrayed in terms of the assumptions thatunderlie legal positivism and legal postmodernism; and we show how Lacan can provideus with a much-needed alternative account of the rights phenomenon. In this newformulation, rights users are tied directly to the subject-as-lack. And, contrary to areactionary interpretation of this new formulation which might point to an apparentpessimism and apathy, we find that our narrative opens up the way to a highly productiveand passionate ethics.We immediately see the relevance of such contemplations to political and legalstrategists. We argue that Justice is impossible in the strictest sense of the term, and thatour proposed ethics provides us with a means to cope with this knowledge. We suggestadopting 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 ofSlavoj Zizek, Ernesto Laclau, Chantal Mouffe, Joan Copjec, and Renata Saleci, provideus with a panoply of remarkably sophisticated (Lacanian) theoretical tools for thepurposes of presenting this paradoxical relationship.ivTable of ContentsAbstract.iiTable of Contents ivAcknowledgments viiiAbbreviations viCHAPTER ONE: Setting the Stage for a Lacanian Displacement 1Introduction 1A Chapter Itinerary 6A Thesis Itinerary 7What is Psychoanalysis: Toward a Science of the Real 9Law and Psychoanalysis in Context: A Brief Sketch 13Toward a Lacanian Psychoanalytic Jurisprudence and an Ethics ofTransformation 19Problematizing the Politics of Transformation: Toward an EthicalDiscourse of the Analyst 20A Survey of Psychoanalytic Concepts 25Lacan’ s Mathemes 25An Ethics of the Real in the Context of Ideological Interpellation 31TheSubject 33Ethics Revisited: Traversing the Fantasy 39Relevance to the Critique of Ideology 42Specifying the Lacanian Contribution to Legal Theory in the Context of aTransformative Politics 46The Subject of Ethics 47The Function of Law: Justice or Appeasement? 55On Authority 57On the MaterialistlPoststructuralist Opposition 59On Superegoic Repression and the Desire of Rights 64Lacan as a Poststructuralist: Strategies, Power Relations, andStructural Constraint 67Power Relations 69Structural Constraint 70Conclusion 74Notes to Chapter One 76CHAPTER TWO: Doing Theory 85The Logic of the Signifier: Toward a Science of Discourse Analysis 85Sample Readings 98Gay Rights and Gay Strategies 98Undecidability and Identification: Politicizing the LegalCategories of Homosexuality and Pregnancy 102Emptying the ‘Family’ 103Postmodernism as the Limit of Modernism: Variations on a Theme 107On the Onto-epistemological Issue 107Fixity versus Nihilism: Anatomy of a false dichotomy 115VOn Power, Resistance, and Structural Constraint.121On the (im)possibiity of Justice 127On Discourse, Ideology, and False-Consciousness 132Notes to Chapter Two 135CHAPTER THREE: The Law and Politics of Rights and Identities 137Rights Discourse: The Traditional Debate 137The Critique of Rights 137Does Public State Neutrality Mean Invisibility of PrivateInequalities’ 139Rethinking the public/private and politicallsocialdichotomies 141Formal versus Contextual Approaches to Resolving EqualityIssues 145Taking a Closer L.ook 146Do Rights Reproduce the Form of the Capitalist Mode ofProduction7 149Individualism: Alienating or Not7 151Abstract Indeterminacy: Beyond Good and Evil 154Reification and Objectivity 157Conclusion 159Rights and the Logic of Desire 160Identity Politics 172The Process of Identification 172Identity and Power: Structural Constraints Revisited 177Identifications in Legal Discourse 180On Representing Interests 184Notes to Chapter Three 187CHAPTER FOUR: The Real as an Internal Moment of the Political 194The Political: From Communitarianism to Liberalism to Radicaldemocracy 194Three Lacanian Orders: Im -- Sym -- Re 195...And Their Relation to the Political 198Utilitarianism 204Specifying the Radical Democratic Anti-Utopian Utopia 214Role for the Progressive Legal Scholar 224Problematizing Strategy and Targeting a Radical DemocraticArtegy 236Notes to Chapter Four 244Concluding Remarks 249Selected Bibliography 253Appendix: Lacan’s Graph of Desire 261Notes to Appendix 267viAbbreviationsBE Laclau, Ernesto, ‘Beyond Emancipation’ (1992) 23(3) Development andChange 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 TheoryCollective, ed,, Community at Loose Ends (Minneapolis: University ofMinnesota Press, 1991) at 83.E Lacan, Jacques, Ecrits: A Selection, Jacques-Alain Miller, ed., AlanSheridan, trans. (New York: W. W. Norton, 1977).EP Zizek, Slavoj, For they Know Not What They Do: Enjoyment as aPolitical 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) CanadianJournal of Political and Social Theory 24.LA Zizek, Slavoj, Looking Awry: An Introduction to Jacques Lacan throughPopular Culture (Cambridge: MIT Press, 1991).LTA Laclau, Ernesto, ‘Letter to Aletta’ in his New Reflections on the RevolutionofOur Time (London: Verso, 1990) at 159.MPI ‘Introduction’ in Laclau, Ernesto, ed., The Making ofPolitical Identities(London: Verso, 1994) at 1; and Laclau, Ernesto, and Lilian Zac,‘Minding the Gap: The Subject of Politics’, in Laclau, Ernesto, ed., TheMaking ofPolitical Identities (London: Verso, 1994) at 11.NR L.aclau, Ernesto, ‘New Reflections on the Revolution of Our Time’ in hisNew Reflections on the Revolution ofOur Time (London: Verso, 1990) at3.vuPLM Laclau, Ernesto, ‘Politics and the Limits of Modernity’ in Ross, Andrew(for the Social Text Collective), ed., Universal Abandon? The Politics ofPostmodernism (Minneapolis: University of Minnesota Press, 1988) at 63.PM Laclau, Frnesto, ‘Psychoanalysis and Marxism’ in his New Reflections onthe 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’ inhis 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 UniversityPress, 1993).UPI Laclau, Ernesto, ‘Universalism, Particularism, and the Question ofIdentity’ (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 andPolitics ofSocial Diversity (London: Rivers Oram Press, 1994) at 167.viiiAcknowledgmentsButfor Professor J. C. Smith (my primary supervisor) this thesis would not havebeen possible -- in too many ways to even attempt to list or give justice to. Introducingme to Jacques Lacan has made him responsible for the single most traumatic encounterthat has ever befallen me. In doing so, however, he has also made possible the birth of anew and rewarding world-view. His unwavering faith in my efforts to grapple with thelittle bit of the real provided a constant source of anxiety-- but a productive kind ofanxiety 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 ofErnesto Laclau and Chantal Mouffe has resulted in a profound mutation in my theoreticaland academic trajectory. His productively critical and insightful commentary also helpedme refine many issues and give focus to the thesis.I also thank Karin Mickelson; mom, dad, and Byron; and Angela; all of whomwere a constant source of support and encouragement.Finally, I thank my refrigerator which developed an uncanny knack at producinglittle tid-bits of edibles when least expected but when most needed.ixI love you, but, because inexplicably I lovein you something more than you -- the objetpetit a -- I mutilate you.Jacques Lacan1[Mly frank opinion is that [Lacan] was aconscious charlatan, and was simply playinggames with the Paris intellectual communityto see how much absurdity he could produceand still be taken seriously.Noam Cbomsky21CHAPTER ONE: Setting the Stage for a LacanianDisplacementIntroductionWhat causes change? What induces us to want change? What is it in others, inourselves, in discourse, that unsettles us; that triggers our will (to power)? Why do wedesire? 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 psychoanalyticcategory of thought of surprising theoretical clout. It will provide us with the necessary‘missing link’ to tie psychoanalytic concepts such as identification, subjectood, and ethicsto contemporary theoretical issues surrounding progressive social change. The relevanceto the new social movements and minority critical legal studies, therefore, should beapparent. Indeed, we could say that, though our primary reference materials consist oftheoretical 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 toeffect some meaningful and concrete changes at a grassroots level (to close the incomediscrepancy gap, to make the world a physically and psychically safer place to live in forChapter One: Setting the Stage for a Lacanian Displacement 2women and sexual and racial minorities, and so on). Now, in an effort to discern whethersuch contemplations are utopian in the negative sense (ie., naive and impossible) orutopian in the positive sense (ie., tangibly possible), critical scholars have turned to amultiplicity of disciplines for assistance in mapping out possible approaches. Rapidlyattaining hegemonic status are conceptual tools drawn from disciplines which havealready accepted and assimilated the poststructural and postmodern ethos. Indeed,current critical literature indicates an almost obsessive compulsion on the part of theirauthors to eschew phrases and ideas that might betray the slightest trace of essentialism ormetaphysics. And, of course, the recent theoretical backlash against CatherineMacKinnon 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 existenceoutside of discourse; that there is no ‘prediscursive’ reality; that nothing meaningfulexists beyond the language games we engage in. Such a premise, of course, carriesprofound implications vis-a-vis one’s world view, way of life and, consequently, strategyconsiderations. Nevertheless, it seems that, in the current struggle among competingphilosophical schools of thought, European continental philosophy (especially that ofDerrida and Foucault) is steadily marching toward the limelight.We can see, therefore, why, at least at the level of explicit theory, current legalscholarship is engaged in a more or less concerted effort to bury any remaining vestigesintimating the presence of natural law or legal positivism. Critical legal scholars havedeconstructed court judgments to reveal how underlying assumptions constantly subvertrational argumentation and how, ultimately, legal reasoning is circular. The question thenbecomes what is it that sustains, pins down, legal argument? If reason and logic are notsufficient 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 otherChapter One: Setting the Stage for a L.acanian Displacement 3social 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, socialrelations 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 thelegal discourse comes from an examination of the interrelationship of these dimensions.It is acknowledged that making social relations the analytic unit of legal theory ishelpful in bringing about a crucially important shift in perspective. It shows us, forexample, that a narrow focus on legal materials is no longer adequate in achieving acomprehensive 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 thecontentious issue of social transformation, especially from the progressive standpoint.We argue that what is missing from contemporary debates in legal theory is a properproblematization of the process of identification which frames the very social relationsthat many theorists take as their starting point.However, we are not simply concerned with creating a typology of the variousmodes of identification that we engage in. Indeed, investigating the discursivemechanisms that are responsible for the construction of the multitude of subject positionsmaking up social relations is fast becoming an academic commonplace among legaltheorists. Rather, we are more interested in such processes of identification inasmuch asthey constitute mechanisms of escape. But escape from what? The Lacaniancontribution to theories both of law and of transformation can be seen as providing ananswer to this question. We will argue that detailed considerations of the twin conceptsof subjecthood and ethics are the crucial elements that are absent from contemporarylegal debates.Chapter One: Setting the Stage for a Lacanian Displacement 4Our starting point in establishing a theoretical framework is the work of Laclauand Mouffe (HSS) which conceives the political and social field in terms of signifiers andsocial antagonisms. Their opus will operate as a kind of background common sense uponwhich a Lacanian approach to legal theory will be developed. It is their theorization ofthe social antagonism which is responsible for their famous statement that ‘society doesnot exist’, ie., that society as a fully sutured entity and in complete identity with itself isan illusion of the (Lacanian) imaginary order. Society is always traversed by socialantagonisms which surface as antagonistic relations such as those between the capitalistand socialist, industrialist and environmentalist, patriarch and feminist, etc. Now, if weadd to these observations pertaining to political theory the fact, as the Realists andCritical Legal Scholars never tire of pointing out, that law constitutes an important sitefor political and ideological struggles, the relevance of their comments to legal theoryshould be clear.The Lacanian contribution to poststructural political theory can perhaps be framedin terms of the subject. Postmodern and poststructural theorists have properlyinterrogated the notion of an essential, unitary, and autonomous subjecthood. However,from Zizek’s perspective, the standard poststructuralist notion of the subject needs to berevised or, more precisely, emptied.4 In psychoanalytic theory the subject represents theasymptotic limit of the process by which each of the substantive subject positionsoccupying the empty space is removed one by one. In other words, the psychoanalyticsubject is a lack or, alternatively, the split between its substantive content and its emptyform. So, it is in this homologous sense, that we argue that legal theory has notadequately problematized the subject, and that Lacan, through Zizek, can provide theimpetus for remedying this deficiency.5 The idea is to inquire more precisely into thenature of the subject and to show how its constitutive split (between the subject ofChapter One: Setting the Stage for a Lacanian Displacement 5enunciation and the subject of the enunciated) is none other than the Zizekian fetishisticsplit between (unconscious) real knowledge and (conscious) symbolic belief.In the context of a transformative politics, the question that is at the forefront ofsuch an inquiry is ‘why are deconstructive readings not sufficient?’ le., why is thestaging of a category’s discursive overdetermination not often sufficient to diffuse ourtendency to cling to an ‘irrational’ essentialism, to treat ‘woman’, for example, as acategory with an intrinsic property that justifies physical or mental abuse? Why is it notsufficient 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 dolittle 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 ofbehaviour? In engaging with Lacanian psychoanalysis we hope to show how aprioritization of the signifier over the signified can help us access, and come to termswith, the real of our subjeethood, our internal antagonism, our own extimate blockage,our jouissance. For psychoanalysis deals with that which escapes the significationprocess: jouissance (enjoyment). Its function is to locate and assume this surplusenjoyment by examining its traces in the discursive medium (repetition, inconsistencies,paradoxes, circularity).We can now answer the question we posed earlier. The mechanisms of imaginaryand symbolic identifications constitute means of escape from, or veiling of, the realdehiscence of our subjecthood (or the inconsistency of the symbolic Other). The ethics ofa feminine jouissance, therefore, suggests the assumption, rather than repression oreradication, of the fetishistic split with which the subject is marked.As already mentioned, the necessity of a review of the subject stems from theobservation that symptomal (ie., deconstructive) readings are not sufficient to effectchange; from the perspective of critical legal theory (including the new socialmovements) we need also to identify with the symptom by recognizing the way we enjoyChapter One: Setting the Stage for a Lacanian Displacement 6the symptom. This corresponds to the final moment in the psychoanalytic ‘traversal offantasy’, ie., the act with which one can view the symptom as the truth of ourselves, suchthat a relation is, to use Chantal Mouffe’s terms, transformed from an antagonistic one toan agonistic one.So, to conclude, the aim of our thesis is to rethink traditional and poststructuraltheoretical concepts from a Lacanian perspective, and to transcribe them into the domainof a transformative politico-legal theory. These concepts include ideas such assubjectivity, identification, ethics, social relations, structure, power, authority, legitimacy,etc. The purpose of such an interrogation will be to examine the potential for apsychoanalytic contribution to current debates in the realm of law. We propose that aLacanian perspective offers us the opportunity to rethink some basic theoretical conceptsand thus to significantly advance the debate in the area of social change by emphasizingthe 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 theanalytic. Our thesis will thus constitute a preliminary inquiry into the limits of theoryitself (inasmuch as theory connotes the order of description and prediction6)and,specifically, the limits to any kind of strategic-transformative project. The themeunderlying our thesis, therefore, urges that legal theory will have much to gain insupplementing the standard (traditional) postmodern poststructural approach with aLacanian psychoanalytic approach.7A Chapter ItineraryIn order to set the stage for a Lacanian critique of current theories of law andpolitical philosophy, this chapter will address several preliminary issues. First, we willoffer a thumbnail sketch describing what constitutes psychoanalysis and its object ofChapter One: Setting the Stage for a Lacanian Displacement 7study: In what sense can it claim scientific status? How does Lacan’s re-reading ofFreud alter our approach to analysis?Second, we will briefly outline the manner in which the discipline ofpsychoanalysis has impinged upon the legal discourse. In effect, we investigate thisintersection along two axes: the historical-diachronic axis, and the theoretical-synchronicaxis. Third, we will consider, in fairly general terms, in what sense our thesis can bedistinguished as a separate and unique locus of intersection: In what sense do we think itoffers 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 asfantasy, subject as lack, etc., for some familiarity with them will be assumed in theremaining 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, andpopular culture. In this part, we will also draw out some implications for the critique ofideology. And lastly, we will attempt to delineate more precisely the Lacaniancontribution 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, forexample, at such issues as authority, power relations, and rights. Its purpose is not somuch to be comprehensive as it is to suggest the kind of theoretical displacement wethink is long overdue and which our subsequent chapters will try to more fullysubstantiate.A Thesis ItineraryWe shall follow our introduction to psychoanalytic theory with a theoreticalchapter whose purpose will be to make more explicit its relationship to the laws of thesignifier. Chapter two will also explore the relevance of the logic of the signifier tocontemporary theoretical debates centering about postmodernism. In chapter three, ourChapter One: Setting the Stage for a Lacanian Displacement 8account of the traditional rights debate will suggest that a critique of rights based on thefailed materialization of preconceived progressive outcomes is locked into an essentialistmode of thought. We will show how the notion of a split signifier accounts for theremarkable capacity of the rights discourse to transform social relations into politicalrelations of oppression and antagonism. Finally, in chapter four, we examine what kindof progressive politics survives an anti-essentialist critique. We do this by looking at howthe three L.acanian orders (imaginary, symbolic, and real) can serve to frame debateswithin political theory and how such an approach sides favourably with a real ethics ofradical democracy. We will then conclude by examining, more specifically, theimplications for a progressive lawyerly practice.As a final note, we wish to make explicit what will soon become obvious fromour work. We wish to acknowledge our immense theoretical debt to Slavoj Zizek whoseinsightful exposition of Lacan’s work is without parallel; to Ernesto Laclau forspecifying, with the utmost rigour, Lacan’s logic of the signifier; and to Chantal Mouffefor her very clear presentation of the debates in political theory, including her owntheoretical contribution by way of the radical democratic project. Of central thematicimportance to our thesis is the notion of the subject as a (real) lack and the processes ofidentification meant to appease this lack; the logic of the signifier which accounts for theemergence of the subject as lack; and an ethics of the real which radical democracyaspires to. In this sense, therefore, we could say that our thesis consists of a series ofessay-variations on a Lacanian theme.Chapter One: Setting the Stage for a Lacanian Displacement 9What is Psychoanalysis: Toward a Science of the RealEver since Freud, psychoanalysis has been concerned with human action whichdoes not accord with conscious or rational motivations. Slips of tongue, dreams,obsessive compulsive behaviour, intractable relationships, and uncontrollable addictionswere just some of the examples taken as evidence of an agency not normally accessible tothe conscious mind: the unconscious. The psychoanalyst was usually called upon toattend to a symptom, ie., a particular kind of behaviour which struck the individualexperiencing it as undesirable. The task of analysis, then, consisted in relating theanalysand’s symptom to her/his psychic makeup, often by recollecting and examiningher/his family history.Thus, the psychoanalytic relationship is born out of a desire to understand andeliminate a symptom experienced by an analysand. And the typical psychoanalyticencounter 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., constellationof signifiers) of that particular person, as the art of psychoanalysis is premised on the factthat every individual is unique. As Jacques-Alain Miller notes:the analytic attitude is just this: never, never suppose you speak the sametongue as your analysand. Never suppose you know what he means whenhe says anything: that is, the analyst must suspend the common sense ofthe tongue. And I believe it’s clear that there is no common sense inpsychoanalysis. There is only particular, peculiar sense. Besides commonsense, both analyst and analysand aim at the most particular sense valid forthis subject, and not for any other. You really don’t know what theanalysand means when he speaks. But he came to analysis preciselybecause he himself suspected he didn’t know what he meant when hespoke. And that is why he offered himself up to interpretation.Some people use Lacan to say that the analysand speaks inreference to a subject-supposed-to-know what it all means. As an analystyou know nothing about the particular tongue of your analysand. Youknow nothing more than this: that what he means is what he enjoys.8Chapter One: Setting the Stage for a L.acanian Displacement 10The 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 ofthe socio-cultural. And this shift is made plausible by acknowledging the strictly socialcharacter of the individual. In other words, the subject is socialized into an Individualthrough the processes of imaginary and symbolic identifications, ie., the introjection ofcommon, 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 bringsus to the question of science in the context of psychoanalysis. In his effort to legitimatepsychoanalysis as a science, Freud attempted to trace human behaviour back to abiological-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 ishere that Lacan makes his most important contribution. He devoted much time to rereading Freud’s texts and, in doing so, found in them an implicit yet heavy reliance on thelinguistic medium. (After all, the psychoanalytic cure is accomplished by words, notsurgical instruments.9)Lacan was able to find a resonating coherence in Freud’s workwhen 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 (thusgiving a more explicitly verbal twist to Freud’s concepts of condensation anddisplacement) but also to the privileging of the signifier over the signified, and anacknowledgment of the significance of culture in a person’s psychic make-up -- a seriesof significations condensed into Lacan’s concept of the ‘big Other’1°or ‘symbolic order’.Thus, the well-known psychoanalytic terminology encompassing Freud’s castrationanxiety, Oedipus complex, transference, etc., came to be understood primarily in terms ofsignifiers, not biology.The influx of Saussurian and Levi-Straussian cultural semiotics, therefore, made itpossible for Lacan to re-entertain the notion of psychoanalysis as a linguistic, rather thanChapter One: Setting the Stage for a L.acanian Displacement 11biological, science. However, far from reducing everything to language, as critics oftencharge L.acan, psychoanalysis retains its most distinctive feature whose origins stem fromthe Freudian Id and the repetition compulsion: jouissance. Notorious for its persistentresistance to definition, this concept belongs to the register of the Lacanian real. It is akind of paradoxical enjoyment in pain (or pain in enjoyment) which both escapes (in theguise of the plus-de-jouir, or objet petit a) and sustains (in the guise ofjouissance 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 eachother. They are radically external to each other, yet they intersect in a mutuallysupportive manner. And since meaningful existence (exist-sense) pertains only to thefield of the symbolic (but made apprehensible by the imaginary), we have access to thereal only through the inconsistencies (slips, paradoxes, symptoms, etc.) that it engendersin the discursive medium. The privileging of the symbolic order, therefore, should not beseen to be a Habermasian attempt to either ignore, gentrify, or eradicate the real in orderto attain a communicative ideal, but rather as our only possible means to locate it andaccept it in its profound meaninglessness.11 To radicalize this observation, we could saythat communication is a strictly ideological process which is made possible only througha necessary misrecognition, a misrecognition of the real contingency of the interpellativeact. It is in this sense that we can say that psychoanalysis deals with that which escapesthe signification process. The paradox, of course, is that evidence of this objet petit a canonly be found on the level of the signifier. And the trick is to find a way to harness thiselusive substance so as to make it analytically useful.To broach the issue of science again, we might ask how psychoanalysis can claimscientific status when it starts from the presupposition that the foundation of discourse issenseless rather than rationally meaningful. Do we not need an ordered, linear,Newtonian world before we can have any semblance of a science? The answer, ofcourse, since the arrival of quantum physics at the turn of the century, and the moreChapter One: Setting the Stage for a L.acanian Displacement 12recent emergence of complexity theory, would seem to suggest otherwise. We candescribe chaotic systems using, for example, non-linear equations, even though we maynot be able to predict outcomes with a high degree of specificity. The task has becomemore formal, rather than substantive: we acknowledge the intractability of exactsolutions of non-linear equations, and so we strive to locate and ascertain the form orpattern of behaviour of chaos itself. Hence, strange attractors, Mandeibrot sets, etc. Inthe 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 13Law and Psychoanalysis in Context: A Brief SketchThe link between psychoanalysis and law as a social discourse should now beclear. The proposition advanced in this chapter is that Lacanian psychoanalysis offers usa set of conceptual tools which allow us to locate and deal with discontinuities in thediscursive domain. And though it is acknowledged that psychoanalysis has traditionallybeen understood as belonging primarily to the realm of personal discourse andtransformation, ever since Freud12,Marcuse’3,and Fromm’4,the argument has beenadvanced that its conceptual framework is equally relevant at the level of socialdiscourse.It could be argued that the incidence of the psychoanalytic onto the legaldiscourse has produced subdiscourses which can be usefully grouped into threecategories: those which concern themselves with the origins of law; those which dealwith the general nature and operation of law; and those which present psychoanalyticinsights as essential justificatory components in the legal decision-making process. Theparadigmatic instantiation of the former category, of course, is Freud’s Totem andTaboo.’5 A more recent example, which addresses the first and second categories, isSmith’s Neurotic Foundations of Social Order.16 Finally, the third category refers tospecific contributions that psychoanalysis has made in the reasoning contained not onlyin court judgments, but also in academic articles and texts. They usually concern specificdoctrines of the law. Examples include insanity, temporary insanity and automatism,sexual)gender differences, racism, child abuse, the battered wife syndrome, best interestsof the child, etc.The psychoanalytic renditions of the origins of law can be further classified intotwo 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 14determined 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 subsequentevolutionary development of the superego (associated with the neocortex) resulted in thesuppression of some of the limbic brain’s functions.17 So the origin of law can be tracedto the ancient taboos against incest and parricide which, “not only were attempts to helpblock man’s Oedipal wishes, but constituted his first laws as welL”8 Anthropologicallyspeaking, this translates to the transition from the ‘primal hordes’ in which the powerfulruling male kept all the women to himself, to the insurrection of the sons resulting in theprimal parricide (death of the imaginary father) and erection of a totem in his place(emergence of the symbolic father).19There are, however, scholars who caution against a biological reductionism thatobfuscates the complexity of human behaviour and feelings. Leonard Kaplan and RobertMiller,20 for example, examine the psychoanalytic state of anxiety to show that thebiologization of psychiatry stems primarily, not from a fuller comprehension of minddynamics, but rather from the apparent pharmacological successes in treating severemental 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 insightoriented psychotherapy’, and competition from non-medical mental health workers, as invarious family and group therapy practices.Moving on to examine contributions made by psychoanalysis to specific areas oflaw, 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 withintention and material impact in race discrimination cases. Rather, he suggests that amore fruitful approach would consider the cultural dimension of discrimination. Heproposes, for example, “a new test to trigger judicial recognition of race-based behaviour.Chapter One: Setting the Stage for a Lacanian Displacement 15It posits a connection between unconscious racism and the existence of cultural symbolsthat have racial meaning. It suggests that the ‘cultural meaning’ of an allegedly raciallydiscriminatory act is the best available analogue for, and evidence of, a collectiveunconscious that we cannot observe directly.” In short, Lawrence, “urges a morecomplete understanding of the nature of human motivation”2’in the context of raceissues.Taking a psycho-feminist perspective, Barbara Stark examines how conscious andunconscious gender ideologies shape divorce law (mainly through provisions offeringvery generous judicial discretion) and its impact on women’s concerns, including childcustody and post-divorce standard of living.22 She highlights three contributions ofpsychoanalysis to the examination of divorce law. “First, it has been suggested thatwomen 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 ‘allpowerful mother’]; and third, that the dynamics of dominance and submission aregendered.”2 At the time of her article, nine of the 39 U.S. state task forces investigatinggender-differentiated impact found that “gender bias detrimental to women permeatesevery aspect of marital dissolution and child support.”24In considering the broader impact of psychoanalysis on legal theory, we mightjoin Leon Sheleff in noting how sociological jurisprudence provides a link between “themore traditional philosophies of law and the more psychologically orientedapproaches.“ Thus, early sociologists of law such as Weber and Durkheim emphasizedprinciples 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 tothe American School of Legal Realism, Jerome Frank drew upon Freudiaii ideas tohighlight to the inconsistencies and uncertainties of everyday life, and how law’s functionwas an ideological one-- a comforting but illusory resolution of disputes in a clear-cut,Chapter One: Setting the Stage for a L.acanian Displacement 16objective manner. Thus, “[fJar from there being a rational law, there are rationalizationsof the law.”27 Frank was concerned first, to mark the importance of lower court decisions(in contradistinction to the usually-emphasized higher level decisions) in establishing theparameters which characterize the nature of law; second, to explain how exactly“political, economic, and moral factors impinge on a judge’s thinking and decision-making;”28 and third, to expose and explain that “the process of judging [not necessarilyonly in a court situation] seldom begins with a premise from which a conclusion issubsequently worked out. Judging begins rather the other way around -- with aconclusion more or less vaguely formed; a man ordinarily starts with such a conclusionand afterwards finds premises which will substantiate it.”29 There is, therefore, at thisearly time a strong sense that legal argument can be, and is, sustained to a very largeextent by non-legal ideologies imported during the decision-making and justificatoryprocess, and whose function is to quell our daily uncertainties and unpredictability.Writing in 1935, Edward Robinson30echoed Frank’s sentiments in predicting that“it will be a fundamental principle of the new philosophy of law to recognize that everyimportant legal problem is at bottom a psychological problem and that every one of themany traditions about human nature which are to be found in legal learning needs to begone over from the standpoint of modern psychological knowledge.” “The law isconcerned with the regulation, mitigation, and composition of human disputes. Thefundamental stuff with which it deals is therefore psychological.”3’Albert Ehrenzweig32(1972) and C. G. Schoenfeld33 (1973) have also taken Frank’s lead in mining the veinsformed by the intersection of psychoanalysis and law. However, as Sheleff points out,there has been no recent, thorough theoretical development in this area.34As 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 rethinkdoctrinal law in general from a Lacanian perspective.35 However, it is clear that heChapter One: Setting the Stage for a L.acanian Displacement 17remains 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 legaldiscourse and attributing to these sites the status of an unconscious importation ofexternal ideologies. Not that this is not helpful. Rather, the point is that it remains withinthe ‘false-consciousness’ problematic of traditional modernist ideological analysis.Caudill misses the opportunity to highlight the significant contribution psychoanalysishas to make vis-a-vis the subject. Indeed, he makes frequent reference to the gaps inknowledge and the attempt by the legal discourse to fill in the gap36. He notes, forexample, thatthe deep structure or foundation of contract doctrine operates like, or is,language. Not only is the gap in a contract filled by language, and notonly are the rules for filling the gap textual, but the ground of contract lawis mediated by words. In Lacanian terms, contracting parties are caught inthe web of the language that will determine who they become.Judges and legislators attempt to fill in the secondary or incidentalgaps of what is assumed to be the primary text of the contract. The gaps,however, contain the meaning of the contract. The contract only hidesthat 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 shiftin emphasis teaches that the unsaid is often more important than what issaid?7However, Caudill does not make the link between the gap and the subject as lack, ie., thefunction of law in appeasing the discomfort of the abyssal nature of the subject. In thisview, 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 thelack is veiled, In other words, he misses the analytical usefulness of the real order byreading L.acan as a structuralist.38Others who attempt to bring to legal theory some Lacanian insights focus ontracing doctrinal inconsistencies to specific ideological anchoring points in areas such ascrim&9and sexuality.40 Overall, however, there is little theoretical development beyondthe immanent critique of critical legal scholars and the ideological analyses of ‘law andChapter One: Setting the Stage for a L.acanian Displacement 18society’ scholars. More importantly, there has been very little or no effort to relateLacan’s views on the subject/structure problematic to legal theory,41 a topic of centralimportance to our thesis.Chapter One: Setting the Stage for a Lacanian Displacement 19Toward a Lacanian Psychoanalytic Jurisprudence and an Ethics of TransformationWe could say, therefore, that psychoanalysis and, specifically, Lacanianpsychoanalysis, has not yet been systematically invoked to make ideologico-discursiveanalyses at the level of legal theory and philosophy. As mentioned above, the plausibilityof such a project will depend on the extent to which concepts developed to deal withanalysands 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 topolitical theory. in our view his oeuvre demonstrates the analytical power of Lacan’sconceptual framework, and especially the relevance of his mathemes: SI42, S243,$,a45. In a certain sense, therefore, we could say that these psychoanalytic concepts exhibitthe property of invariance in moving from the personal to the social, just as certainobjects in the field of chaos exhibit the property of self-similarity in moving along theaxis of scale.When discussing topics such as order, predictability, and fairness in the context oflaw and social policy, one invariably confronts issues of authority, legitimacy, andideology. Though this confrontation has historically been staged within the confines ofonly a few isolated disciplines (such as jurisprudence, political philosophy, sociology oflaw, and comparative law) and within the purview of a small number of scholars, theissues have now such wide currency it is hard to find a legal scholar who has notseriously thought them through. This outward proliferation of ‘raised-consciousnesses’among legal scholars can be traced to the results of the deconstructive efforts of legalrealists and critical legal theorists and, more recently, to the expressed concerns offeminist legal scholars, ecological scholars, and critical race scholars. And the list ofcritical perspectives continues to grow.Chapter One: Setting the Stage for a Lacanian Displacement 20It 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 aframework within which to analyse political discourse. It is the aim of our thesis,therefore, to elaborate upon this framework with the intention of examining itsimplications for an analysis of legal and social theory under the gaze of the socialmovements.Problematizing the Politics of Transformation: Toward an Ethical Discourse ofthe AnalystWhen we talk of ideological analysis for the purposes of exploring the potentialfor 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 multipleeffects any one instrument of intervention might have.Now, in contemplating such strategies, it is also important to consider their meansof implementation from an ethical perspective. And here, we might ask whatpsychoanalysis can offer us in the form of guidance. In contrast to the traditionalapproach to social change which begins with a fixed idea of the ‘good’ and proceeds topromote the values which accord with it irrespective of the heterogeneity of the socialfabric, psychoanalysis favours a response-oriented approach to change.46 This is not onlymeant to address concerns about the possible effects of specific interventions (forexample, the effect on sexual minority groups of banning pornography), but also to querythe assumption embedded in the notion of social transformation itself, namely, themotivations driving the desire for change in the first place.Chapter One: Setting the Stage for a Lzcanian Displacement 21This, of course, brings up the contentious issue of ethics: Who determines whatthe social symptom is? Who decides what strategy to adopt? Is not implicit in thepsychoanalytic approach another version of the ‘good’? The problem with thesequestions, 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 willdepend, to a large extent, on the respondent. Nevertheless, even if we remain at this highaltitude of abstraction, we could formulate an ethical stance which, though nevercompletely free of some content, will serve as a kind of regulative ideal. What we havein mind here is the distinction Lacan makes between the discourses of the master and theuniversity on the one hand, and the discourses of the hysteric and the analyst on theother.‘ The idea is to move away from the notion of social transformation through animposition of master signifiers onto the subject (either explicitly, as in the masterdiscourse, or implicitly, as in the university discourse) toward an attempt to hystericizethe socialized individual in an environment conducive to the production of his or her ownmaster 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 (orindividual-historical) narrative formation; that each historical ‘turning point’ or ‘decision’is revealed in its Kierkegaardian ‘becoming’, its profound undecidability, and whoseradical openness is only retroactively converted into necessity, thus effacing themultitude 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. Smithin the field of artificial intelligence concerning the deep structures of specific areas of thelaw could be construed as remarkably successful attempts at identifying structuringmaster signiflers within highly specialized legal cultures. The question, therefore, forlegal and political theory from the perspective of psychoanalysis, is to what extent is itChapter One: Setting the Stage for a Lacanian Displacement 22possible or desirable to expect the legal and political discourses (of a predominantlymaster and/or university ilk) to become hystericized via their analytic relative. Our focusbecomes less what the symptom is and more how the ‘who’ that perceives it is implicatedin the very construction of the symptom it wishes to distance itself from. Let us examinethis 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 inprinciple, the implicit assumption is that once a supposed illusion has been exposed, theindividual labouring under the unfortunate veil of false-consciousness will see the error ofher/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 losswhen it comes to strategic intervention with an eye to social transformation. Theyconsider themselves without any other option but to offer alternative (‘proper’, ‘correct’,‘better’) knowledges with the hope that the veil of behavioural false-consciousness (asopposed to the usual cognitive false-consciousness) will soon be pierced. This is not tosay that the concept of false-consciousness is not useful (despite its relatively recent badpress49). Rather, this view, at least at the level of strategic intervention, leavesuntheorized, and thus unrefined, at least two types of individuals: those who remainunconvinced of the error of their ways/beliefs (Jews/blacks/gays/lesbians are abnormaland subhuman, people on welfare are lazy bums)50,and those who are convinced anddesire to modify their behaviour and yet are unable to do so. And it is worth noting thatthese observations are not at all of the same order as those made by the law and societyscholars, namely of the discrepancy between ‘law in the books’ and ‘law in practice’, forthis still appeals to a version of traditional false-consciousness. Rather, they referprimarily to the fetishistic split of the Lacanian subject: ‘I know very well.... (thatJews/homosexuals are just like any other person; that many of my daily activities are aChapter One: Setting the Stage for a Iacanian Displacement 23contributing source to environmental degradation; that I must seek help for my alcohol-related abuse of my wife; that money and property have become my fetishes andmanipulate me; that I need to get started on my paper now) nevertheless, I believe (thatJews/homosexuals are corrupters of this world; that the Earth will heal itself; that I do nothave an alcohol problem; that I control my money and property; that I can postpone thestart of my paper another day). It should be apparent, therefore, that, to the extent thatprogressive scholars are concerned with social transformation, and to the extent that thebulk of the targeted social transformation potential consists in addressing individualsbelonging to the two groups described above, traditional logical-rational modes ofargumentation will not be sufficient. It is here that Lacanian psychoanalysis has the mostto offer. In the instance of the above-mentioned example, the first step in a Lacanianapproach involves the recognition of such a fetishistic split as the very definition of thehuman subject; that it constitutes our very condition humaine; and that we must firstundertake to assume it rather than ignore or suppress it. In other words, the split is thesource of our symptoms: our symptom is nothing but the external symbolic reaction-formation to an internal antagonism.We can now begin to appreciate the care and delicacy with which thepsychoanalyst must treat an analysand’s symptom. It is the symptom, after all, thatconstitutes the analysand. We could even say that the symptom is the subject, for thesubject is inextricably dependent on it. Perhaps we can also begin to see the significanceof the famous Lacanian statement that ‘woman is the symptom of man’. And when weconceive of the Jew as the symptom of the Social, we realize the potential relevance ofLacanian psychoanalysis beyond the realm of the individuaL For did we not say that thestake of psychoanalysis is to show that it is applicable to the social field, even if only todefine the limits of any kind of social theorizing?5’Chapter One: Setting the Stage for a lacanian Displacement 24In closing this section, we could perhaps highlight an apparent paradox. In aneffort to address the impasse of the individual/community dichotomy, poststructurallstshave pointed out that the increasing complexity of life has led to a stupendousproliferation of discourses. Our identity is as fragmented as the number of discourses wetraverse, and any semblance of unitary, autonomous subjecthood that may have existed ina less informationally aggressive era has now virtually disappeared. But has it? Thehegemonic status of liberal ideology in the political, legal, and economic domains seemsto dictate otherwise. The idea that we are rational and autonomous agents fullyresponsible for our choices and actions still commands respect, and is heavily reliedupon, in many academic and professional disciplines. Perhaps more importantly, it stillhas 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 25A Survey of Psychoanalytic ConceptsLacan’s MathemesAs 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 theoreticalconcepts, not only in Lacan’s theoretical corpus, but also in recent philosophicotheoretical history: the real objet a, a paradoxical object which both escapes and sustainsthe symbolic order.We can begin by recalling the essentialist (descriptivist) position whereinIntentional 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 anyobject that satisfies them will be recognized as a ‘chair’ or ‘table’. The theoretical pointis that these properties exist independently of the ‘christening’ process; that they belongto an a priori Platonic realm on which their correlative (and imitative) phenomenalembodiments depend for identity. In contrast, the non-essentialist (anti-descriptivist)highlights the retroactively contingent nature of the naming process itself.52 In otherwords, it is the act of ‘baptism’ which links together and retroactively constitutes a set ofdescriptive 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, inorder for a word to be meaningful, we must eradicate from our consciousness all aspectspertaining to the purely phenomenal and leave those which pertain to the symbolic, ie.,the signifiers.54We could put it this way: what is obviously true of the proper name (ie., thecontingent nature by which a set of descriptive properties -- colour of eyes and hair,Chapter One: Setting the Stage for a Lacanian Displacement 26characteristics such as shyness or responsibleness, talents such as musicianship orathieticism -- is linked to the proper name) is true of any other name. The antidescriptivist view, therefore, allows for the possibility of a complete replacement of oneset of descriptive features (S2) by another, while leaving the signifier under which theyare 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‘something in it more than itself’55 that can survive a complete facelift of its definingproperties? In other words, what is it that the master signifier, Si, refers to? It is, ofcourse, none other that the Lacanian objec petit a, the product of the signifying processitself. “[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 theemergence of the signifier.” (SO, 95) It is that which remains constant over a period oftime when, for example, the defining properties of an element (eg., ‘sodium’) completelychange from the physical-phenomenal to the chemical-atomic. Or, it is that whichremains constant when the ‘meter’ is defined no longer in terms of a bar of platinum inParis, but in terms of the speed of light in a vacuum. And, of course, this applies mutatisnustandis 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 remainsconstant as an invariant, it cannot be pinned down to any specific positive property. Theparadox is that on the one hand, its presence is real (ie., defies symbolization), and on theother, its presence can only be detected in reality (the imaginary and symbolic network ofmeaning). Or alternatively: the signifying process produces the objet petit a which isretroactively posited as its own cause. We have here, in other words, an instancewhereby the effect precedes its cause! Thus, we can say (retroactively) that the objet petita is what the master signifier56aims at in an object (whether phenomenal or noumenal)and is thus its correlative. Thus, what guarantees “the identity of the object in allcounterfactual situations -- through a change of all its descriptive features -- is theChapter One: Setting the Stage for a Lacanian Displacement 27retroactive effect ofnaming itse/ it is the name itself, the signifier, which supports theidentity of the object.” (SO, 94-95)Under the (Zizekian) antidescriptivist view of things then, what exactly happenswhen 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 ofenunciation; that it is a ‘signifier without a signified’; that it is, in effect, only anembodiment of a “self-referential, tautological, performative operation” (SO, 99), ie., thatit is a piece of the real which is repeatedly referred to and affirmed as ‘chair’ by theintersubjective community (the big Other); that it is disingenuous or dishonest of us tosay otherwise? Or do we draw up an appropriate list of positive descriptive features andthus risk propagating the myth that these properties constitute the definitive properties ofits essence? Of course, we opt for the latter.57 But why?The short answer58 is that this deception or illusion is a necessary prerequisite toone’s accession to meaning and constitutes a crucial ingredient of the logic oftransference (SO, 102). We are in transference when we think that each of the positiveproperties or elements offered to describe a chair possess a meaning immanent tothemselves. It is only after a necessary retroactive (and unconscious) inversion thatmeaning is pinned down (SO, 96-97); that the incessant metonymic sliding of thesignified under the signifier is arrested. (This explains why Lacan insists that ‘truth arisesthrough misrecognition’). Thus, the cart must always be put before the horse, so tospeak. Only later, after careful (deconstructive) detective work, does it become apparentthat the list of positive properties (what Lacan designates as S2) serves only to deceiveus, ie., to disguise the fact that a ‘chair’ (the master signifier, Si) is only a ‘chair’ to theextent that the big Other guarantees that a particular piece of the real is stigmatized as‘chair’.59 This ‘error of perspective’ is what Zizek calls ideological anamorphosis,Chapter One: Setting the Stage for a Lacanian Displacement 28following Lacan’s own discussion of anamorphosis (FC, 79), especially in the context ofHolbein’s painting of the ‘Ambassadors’. (FC, 86) Ideological criticism, therefore, musttake the form of identifying and flaunting that meaningless spot or stain (ie., the puresignifier whose function is purely structural) which gives consistency to the entirety ofthe ideological edifice. (SO, 99-100)We should notice, now, how we can already detect some very significantimplications 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, thennaming is not just the pure nominalistic game of attributing an emptyname to a preconstituted subject. It is the discursive construction of theobject itself. The consequences of this argument for a theory of hegemonyor politics are easy to see. If the descriptivist approach were correct, thenthe meaning of the name and the descriptive features of the objects wouldbe given beforehand, thus discounting the possibility of any discursivehegemonic variation that could open the space for a political constructionof social identities. But if the process of naming of objects amounts to thevery act of their constitution, then their descriptive features will befundamentally unstable and open to all kinds of hegemonic rearticulations.The essentially performative character of naming is the precondition for allhegemony 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 bourgeoisfreedom’; or such that ‘state’ signifies the means by which the ruling class guarantees itshegemonic 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 thespace which makes possible the effect of meaning. This is because, as we know fromChapter One: Setting the Stage for a Lacanian Displacement 29Saussure, 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 ofa blank space, the $. In other words, the subject as lack is nothing but the place ofinscription 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 mastersignifier is ‘that which represents the subject for all other signfiers’. In other words, thetransition from the ‘simple’ signifier to the ‘master’ signifier corresponds to, what inLacanian terminology, is the transition from a feminine ‘non-all’ (open) set to amasculine ‘all’ (closed) set through the process of capitonnage, ie., the emergence of apure signifier Si, whose real Other is the subject as lack, $.The a, therefore, is the substanceless object which remains constant and whoseconsistency is guaranteed by the Si of the big Other.61 An object or person’s identityrelies on the union of Si and a, on the fact that a ‘sticks’ to Si; and the consequences ofbecoming unstuck may be horrifying-, an event which is related to the Lacanian conceptof separation. We may get a glimpse of the nature of separation by referring to NeilJordan’s The Ciying Game. This movie’s efficacy is staked upon a scene at about themid-point of the film in which a person’s (biologicallsexual) identity is revealed for whatit ‘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 whichit referred (the objet a). In other words, someone (something) is not who (what) wethought s/he (it) was. The horror experienced by a thoroughly duped heterosexuallyidentified viewer is portrayed by the protagonist’s reaction (uncomprehending shock anddisgust, vomiting, etc.). It embodies the real chasm left open by the temporary absence ofthe symbolic identity which concealed it. The suffocation persists until the objet a can begentrified through the attribution of an alternative Si (eg., ‘transvestite’).62 We begin tosee how the nature of this horror is similar to that experienced by protagonists in scienceChapter One: Setting the Stage for a Lacanian Displacement 30fiction films in which they are transported from the tranquil past to the foreign andshocking future, or in which they encounter horrifyingly unfamiliar extra-terrestrial lifeand/or objects. In effect, we have an objet a without an appeasing Si, ie., a foreign objectwhich has not been symbolized and is perceived as a singularity.The gap between Si on the one hand, and S2 (which flows through the emptyobjet petit a) on the other, can also be conceived in terms of a decision (Si) and itsjustification (S2). The presence of this gap is, of course, acknowledged by the commonnotion that an opposite decision can always be supported by the same reasons used tojustify the original decision.63 Under this view, the justification is a retroactiveeffect/product of the decision itself. In the legal context, the strictly circular andtautological nature of the decision-making process is highlighted in cases decided byjuries. Here, a decision is made by fellow citizens who have had no prior legal training inmatters of evidence or reasoning. It is a process whose function, in effect, is to short-circuit 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 followingpre-prescribed rules than set out to fall in love with someone by following a set ofinstructions. ‘I am in love’ is a state which always already was. That you are in lovewith 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 tolist the attributes that provided the impetus in arriving at a legal or romantic decision. Itwould be a mistake, however, to assume that an exhaustive list of such reasons werepossible or even desirable. This is why, on the level of common sense, it is perceived asoffensive, in answer to the question ‘why do you love me,’ to attempt to enumerate suchproperties. (TN, 125) At the level of law, the attempt to exhaustively explicate a legaloutcome in terms of rules and principles is none other than to succumb to the positivistChapter One: Setting the Stage for a Lacanian Displacement 31temptation. And what exactly do these chains of knowledge (S2) aim at when justifyinga particular decision (Si)? The objet petit a, of course.Thus, the objet a is very paradoxical: it is simultaneously a product of thesymbolic 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 asto scientifically locate the objet a); and the very attempt at grasping it creates thesymbolic order. In other words, the impossibility of grasping it is the very condition ofthe symbolic order’s possibility. The idea, then, from a psychoanalytic perspective, is toachieve a certain distance from the big Other, so as not to succumb, as in the Nazi-Jewscenario, 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 InterpellationIn this account, we also get to glimpse the beginnings of a Lacanian ethic--anethics of the real. This ethic is encapsulated in his famous dictum ‘don’t give way toyour desire’. It signals an attempt to briefly suspend the symbolic Other (a ldnd ofDerridean differance), to note the ideological gesture of symbolic interpellation, ie., torecognize 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 amoment of illusion proper to ideology. In other words, “when I recognize myself as theaddressee of the call of the ideological big Other (Nation, Democracy, Party, God, and soforth), when this call ‘arrives at its destination’ in me, I automatically misrecognize that itChapter One: Setting the Stage for a Iacanian Displacement 32is this very act of recognition which makes me what I have recognized myself as -- I don’trecognize myself in it because I’m its addressee, I become its addressee the moment Irecognize myself in it.” (ES, 12) Assuming a symbolic mandate, therefore, entails acertain misrecognition, or untruth. The ideological illusion consists in the presuppositionof the existence of the big Other. And his ethics of suspension is what Iacan callsseparation. 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 legaldiscourseM. 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 assumingidentifications 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 thisalienation. The only solace we can aspire to, therefore, is to achieve a certain distancefrom the Other, from the object of desire, to accept the fact that (to use anotherLacanianism) the ‘Other does not exist’, to not give way to our desire; to become furtheralienated through separation; to attempt an overlap between our lack ($) and the lack ofthe big Other (S(ø)).Let us now move on to examine, more precisely, the nature of the Lacaniansubject and how this leads us to an ethics of the real.Chapter One: Setting the Stage for a Lacanian Displacement 33The SubjectIn order to glimpse the significant shift introduced by Lacan in the construction ofthe subject, it is perhaps easiest to start with another conception which is fast achievinghegemonic status: the poststructuralist subject. The current poststructuralist viewdispenses 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 thepoststructuralist subject-theme, one can attempt a ‘typical’ reading -- one often assumedby Foucauldian and/or Derridean apologists. Here, the subject is conceived as a series ofattributes or subject positions which are only temporarily and precariously sutured abouta 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 subjectparticipates via imaginary and symbolic identifications (ie., in answering the ideologicalcalls of the imaginary other and the symbolic Other). They can never be exhaustivelyenumerated, for they cannot be fixed: they are constantly being threatened and subvertedby the very openness of the socio-symbolic landscape (ie., the start-stop metonymicsliding of the signified under the signifier). Thus, the subject can never achieve fullidentity with itself. It is decentred.Now, to understand the proper dimension of the Lacanian subject we can beginfrom this state of a successfully subjectivized individual. In a bid to subjectfr, we mustnow remove each of these subject positions one by one until none remain. The emptyform we are left with, the lack, the abyss, is the subject. In this view, therefore, thesubject emerges when there is a failure of identification. Hence, Lacan’s denotation ofthe 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 lackChapter One: Setting the Stage for a Lacanian Displacement 34which remains once the substantive predicates have all been withdrawn. As Zizekexplains:Our predominant idea of the subject is, in Lacanian terms, that of the‘subject of the signified’, the active agent, the bearer of somesignifications who is trying to express himself in language. Lacan’sstarting point is, of course, that symbolic representation always distorts thesubject, that it is always a displacement, a failure -- that the subject cannotfind a signifier which would be ‘his own’, that he is always saying toolittle or too much: in short, something other than what he wanted orintended to say.... To put it paradoxically: the subject of the signifier is aretroactive effect of the failure of its own representation; that is why thefailure of representation is the only way to represent it adequately....[Thus,] we have a kind of dialogic economy: we articulate a propositiondefining the subject, our attempt fails, we experience the absolutecontradiction, the extreme negative relationship between the subject andthe predicate -- and this absolute discordance is the subject as absolutenegativity. (SO, 175) [“In other words, all my positive consistency is akind of ‘reaction-formation’ to a certain traumatic, antagonistic kernel: if Ilose this ‘impossible’ point of reference, my very identity dissolves.” (SO,176)1We can see now the significance of Zizek’s critique of Althusser. The emphasis ofAlthusser 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 thesubject’s abyss is veiled.And it is worth noting that, to use psychoanalytic terminology, the hysteric is theone who has bared naked the abyssal nature of his or her subjecthood. The failure ofinterpellation is betrayed by the question ‘why me?’ ie., of someone who simultaneouslyquestions the symbolic mandate foisted upon her/him, and desires to be pacified bycovering up his/her lack. A recent exemplification of the hysterical subject is the youngJerry Conlan figure in Jim Sheridan’s In the Name ofthe Father. We have, here, a cleardepiction of the failure of the interpellation process, ie., the failed attempt by the State todefine this victim of contingency (his mere presence in the vicinity of the pub explosionis sufficient) as an ‘IRA terrorist’. In effect, the question that Conlan constantly asks is“Why me?’65Chapter One: Setting the Stage for a Lacanian Displacement 35This is why hystericization is the aim of analytic discourse. It is an attempt tobring the analysand into a position from which he or she may realize the contingency ofthe assumption of a symbolic mandate, and thus of a particular fantasy. The analysandcan then hope to achieve a certain distance from his or her own fantasy so that it becomesmore flexible. And we can immediately see the importance of this if we accept that werelate to one another only insofar as the other takes up a position in one’s fantasy. This iswhy Lacan never tires of repeating that ‘there is no sexual relationship’: in theheterosexual instance, man can relate to woman only insofar as she embodies the objet ain his fantasy ($>a). In this way, we might say that relationship ‘problems’ are a functionof fantasy rigidity. And this, of course, can have potentially tragic consequences, aswhen 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 clearlyappears a difference between the Derridean and Lacanian subjects. Zizek describes thisdifference: “With Derrida, as with Lacan, the identity of the subject -- the processleading to it (identification, interpellation, ‘recognizing oneself as subject’) -- is alwaystruncated, failed, the subject’s condition of possibility is simultaneously the condition ofits impossibility.” “With Lacan, however, it is not enough to say that the subject’sidentity is always, constitutively, truncated, dispersed because of the intrusion of anirreducible 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 itsfull identity-with-itself.” “[Tjhe subject is the negative of the strange body whichprevents substance from achieving identity with itself.” Thus, the passage from Derridato Lacan can be articulated by the “inversion of ‘mutilated subject’ into ‘subject quamutilation’.” (EP, 95) “It is in this sense that the enigmatic Lacanian phrase defining thesubject as an ‘answer of the Real’ is to be understood: we can inscribe, encircle the voidChapter One: Setting the Stage for a Lacanian Displacement 36place of the subject through the failure of his symbolization, because the subject isnothing 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 beseen as an eclipse of the subject (as is the case in the structuralist world-view), but ratheras an attempt to highlight the subject’s very heavy dependence on it. In this sense, wecan say that language lives through us, not the other way around. The subject can only beretroactively posited as an effect of the symbolic order’s inconsistency. If the symbolicorder 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 takesDerrida more seriously than Derrida himself. Lacan acknowledges the debt to Derrida’sclose readings (of, for example, Husserl, Saussure, Levi-Strauss, Rousseau, Condillac,Freud, etc). They demonstrate, with utmost rigour, the cornmonsense awareness of howmeaning can never achieve full closure; how something always escapes or prevents itsself-identity; how one never says exactly what one means and never means exactly whatone 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 sametheme. 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. Itrepresents an attempt by Lacan to formalize the impossibility of closure. We can clarifythis further by referring again to the antagonistic relation.The paradigmatic antagonistic relation is, of course, the Hegelian Lord andBondsman. Here, the relation is seen to be composed of two subject positions. But theimportant thing to realize is that the relation is asymmetrical: the Bondsman cannotachieve full identity with himself; he is marked by a certain failure or blockage; and it isthis blockage which becomes externally projected onto the Lord, such that the Lord isperceived as a foreign element which prevents the Bondsman from achieving self-Chapter One: Setting the Stage for a Lacanian Displacement 37identity. In other words, the Lord is the external manifestation of the internal blockage ofthe 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 seethat the drive to homogenize the political field (as in Rawis), though well-meaning, canbe dangerous. This phenomenon of the constitution of the Social by the alienation, if notelimination, of an Other can be clearly observed in the breakdown of communism inEastern Europe and Russia. It explains the irruption of enjoyment (ie., jouissance) in theform of anti-semitism, nationalism, and religious fundamentalism-- a development thathas come as a shock to many pundits who thought pluralist democracy was aninevitability. It is not. Why? Because the disintegration of an enemy means that a newone must be found for the purposes of consolidating one’s identity. (And, today, theusual targets are immigrants.)We can see now that the totalitarian temptation consists in the Socialmisperceiving this Outside as foreign to itself, as menacing, and thus in need ofelimination. The psychoanalytic stake consists in creating an environment in which theextimate nature of the relation can be apprehended. In Mouffe’s terms, the aim is toconvert 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, thedeadline lies on the horizon, just out of view; and, for many, this translates into a processwhereby many interesting and inventive practices are born in a bid to sustain aprocrastinating habit. As the deadline approaches, its imminence being directlyproportional to the workpace, one realizes that even a frenzied attempt at the last momentwill not be sufficient to produce a satisfactory result. The deadline, therefore, is viewedas an impediment or obstacle to the ‘perfect’ paper, the successful product. In short, theChapter One: Setting the Stage for a Lacanian Displacement 38deadline prevents us from reaching our desired ego ideal (pertaining to the symbolicorder) or ideal ego (pertaining to the imaginary order); it prevents us from achieving fullidentity with ourselves. In other words, the fantasy involves the possibility of full closurebutfor the deadline and, in this manner, it structures our desire. The lesson to learn fromthe Lord and Bondsman scenario, of course, is that this impediment is nothing but anexternal projection of an internal blockage. And this is why, for those (procrastination-prone) individuals, the most subversive strategy (from the instructor’s perspective) is tounhesitatingly grant an extension. The idea is that the student will come to realize his orher impossible relationship to the deadline such that it is no longer so intensely reified asan external obstacle.This analysis applies also to the opposition language/external reality. The ideahere is that language can only become a totality, a closed volume, against an ‘externalreality’. In the absence of an ‘external reality’ or an equivalent master signifier, we areleft with an open and ceaseless circularity. Witness the feeling of ‘chasing one’s tail’ inattempting to pin down the meaning of a word through the characteristically never-endingcross-referencing of a dictionary. What must be grasped is that this ‘external reality’ isnothing but the external manifestation of the internal antagonism of the linguistic mediumitself. Missing this point leads to a reification-fetishization of ‘external reality’, involvingthe futile attempt to grasp it independently of language. Finally, and by no meansexhaustively, we could mention how the Lord and Bondsman paradigm also addresses theissue of empathy and communication. Here, we might observe that empathy andcommunication between individuals and between cultures is possible not because of anycommon values, but rather because of a common blockage, a common lack. (TN, 31) Itis this lack which is the engine of language.We can see now the problem with advocating such warm fuzzy things as dialogicintersubjectivity (Hutchinson67),or a Habermasian communicative ideal, or a RawisianChapter One: Setting the Stage for a Lacanian Displacement 39homogeneous public, political field devoid of conflict. The moralizing strategies whichpreach non-violent relations with others need to be radicalized such that the Other is seento be a positivization of the lack at the centre of our being. In other words, it is ourposition that there is a striking difference between conceiving full subjectood as possibleand conceiving it as impossible. In viewing the antagonistic Other as a projection of ourown self blockage, the totalitarian temptation can be assuaged into a more manageableagonism.69 In other words, we must make a shift from a perception of the Other asexternal to the Other as an external projection of an internal self-impediment.7°Ethics Revisited: Traversing the FantasyWhat this account suggests, therefore, is the significance of language and cultureinasmuch as they provide us with the material signifiers with which to structure ourdesires (ie., fantasize) and cover the lack of both ourselves and the big Other. Derridarepeatedly shows us how we can never achieve full identity with ourselves, that we neversay what we mean to say, that we always say too much or not enough, that everystatement that we make is always subverted by a dangerous supplement. L.acan’sontological 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 theforever elusive objet petit a by attempting to list all the defining characteristics of, forexample, a person or an object. It means that we must come to accept the split whichdefines us as humans, and to avoid perceiving external objects as the cause of ourinability to achieve a4bigher state of consciousness’. On the social level, it also serves todeflect the totalitarian temptation whereby Society’s internal antagonistic split isChapter One: Setting the Stage for a Lacanian Displacement 40projected onto an external object (the Jew, for example) that embodies the obstacle to itsfull identity, and must therefore be eliminated.It would be reasonably accurate to regard Lacan’s later work as an attempt tofocus and further theorize upon that ‘little piece of the real’ which escapes thesignification process: the objet petit a. Let us now attempt to more precisely delineate itsrelation 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 asubject becomes “integrated into a given socio-symbolic field” (SO, 110); that she adoptscertain socio-symbolic mandates. The important thing to notice is that this mechanism bywhich the individual is (retroactively) interpellated into subject is not as smooth andclean-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, facedwith 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 canbe partially listed as “‘You’re telling me that, but what do you want with it, what are youaiming at?’,” (FC, 214; SO, 111) ‘what do you really want?’, ‘why am I what I’msupposed 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 Iwhatyou [the big Other] are saying that Jam?’ (50, 113). Che Vuoi? aims to discover whatthe desire of the big Other is (in the subjective genitive sense, ie., what is the big Other’sdesire?). “The hysterical question opens the gap of what is ‘in the subject more than thesubject’, of the object in subject which resists interpellation -- subordination of thesubject, its inclusion in the symbolic network.” (SO, 113)71And what is the answer to che vuoi? It is, of course, fantasy. It is whatconstitutes the subject’s attempt at answering this question, albeit unconsciously; ofdealing 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 symbolicidentification, the mother’s desire, with its fathomless ‘Che vuoi?’, marks a certain limitat which every interpellation necessarily fails.”72 (SO, 121) The most troubling aspect ofthis desire of the Other is that the question betrays a certain want, a certain lack. This iswhat 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)73to 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 ofJews 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 thatfantasy functions as a construction, as an imaginary scenario filling out thevoid, the opening of the desire of the Other: by giving us a definiteanswer to the question ‘What does the Other want’, it enables us to evadethe unbearable deadlock in which the Other wants something from us, butwe are at the same time incapable of translating this desire of the Otherinto a positive interpellation, into a mandate with which to identify. (SO,114-115)We can understand, therefore, why the psychoanalytic ethical encounter calls for atraversal of fantasy: to show how the fantasy conceals a nothing, the Other’s lack whichis also our own.Chapter One: Setting the Stage for a Lacanian Displacement 42Relevance to the Critique of IdeologyHere, it is worth quoting generously as Zizek outlines, and argues for, a two stepprocess to ideological critique. The important point to grasp is that a Lacanian-informedcritique of ideology has as its target not so much the realm of imaginary and symbolicidentifications. It does not concern itself so much with interpellation per Se. Rather, itaims more at the real register which escapes the process of signification, ie,, thedimension beyond interpellation. Referring to Lacan’s graph of desire,75 we could saythat 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 ofpoststructural discursive analysis.[T]he impossible ‘square of the circle’ of symbolic and/or imaginaryidentification never results in the absence of any remainder; there isalways 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 canfinally return to the problematics of ideology: the crucial weakness ofhitherto ‘(post-)structuralist’ essays in the theory of ideology descendingfrom the Aithusserian theory of interpellation was to limit themselves tothe lower level, to the lower level of L.acan’s graph of desire-- to aim atgrasping the efficiency of an ideology exclusively through the mechanismsof imaginary and symbolic identification. The dimension ‘beyondinterpellation’ which was thus left out has nothing to do with some kind ofirreducible dispersion and plurality of the signifying process-- with thefact that the metonymic sliding always subverts every fixation of meaning,every ‘quilting’ of the floating signifiers (as it would appear in a ‘poststructuralist’ perspective). ‘Beyond interpellation’ is the square of desire,fantasy, lack in the Other and drive pulsating around some unbearablesurplus-enjoyment.....[Thus, there are] two complementary procedures of the ‘criticism ofideology’:-one is discursive, the ‘symptomal reading’ of the ideological textbringing about the ‘deconstruction’ of the spontaneous experienceof its meaning-- that is, demonstrating how a given ideologicalfield is a result of a montage of heterogeneous ‘floating signifiers’,of their totalization through the intervention of certain ‘nodalpoints’ [ie., tracing how a certain category, such as ‘woman’ or‘Jew’ is constructed (overdetermined) by the operation of a rangeof different discourses];Chapter One: Setting the Stage for a Lacanian Displacement 43-the other aims at extracting the kernel of enjoyment, at articulatingthe way in which— beyond the field of meaning but at the sametime internal to it -- an ideology implies, manipulates, produces apre-Ideological enjoyment structured in fantasy. [“As such,fantasy is not to be interpreted, only ‘traversed’: all we have to dois experience how there is nothing ‘behind’ it, and how fantasymasks precisely this ‘nothing’. (But there is a lot behind asymptom, a whole network of symbolic overdetermination, whichis why the symptom involves its interpretation.)” (SO, 126)1 (SO,124125)76We can see, therefore, how a Lacanian psychoanalytic theory brings an insightfulcontribution to the debate on ideology through the concept of fantasy. This contributioncould 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 whatside 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 iton the side of knowledge. Thus, his standard definition of ideology (in his Capira1”) asfalse consciousness follows the pattern 4they don’t know what they are doing, but theyare doing it anyway’. (SO, 28) Now, if we could only disabuse ourselves of thisknowledge-illusion, (ie., become aware of the true nature of things: that money andproperty are the expression of social relations, not fetishistic ‘objects-in-themselves’), wewould indeed not be disillusioned. It is in this context that Zizek suggests that we shouldview Peter Sloterdijk’s contribution to the debate. In his Critique ofCynical Reason,78heargues 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 itanyway’. (SO, 29). Thus, in conceiving ideological illusion on the side of knowledge, wecan 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 44What post-ideological cynics “overlook, what they misrecognize, is not thereality, their real social activity. They know very well how things really are, but still theyare doing it as if they did not know. The illusion is therefore double: it consists inoverlooking the illusion which is structuring our real, effective relationship to reality.And this overlooked, unconscious illusion is what may be called ideological fantasy.” Inother words, the proper and “fundamental level of ideology.., is not of an illusion [on theside of knowledge] masking the real state of things but that of an (unconscious) fantasystructuring our social reality itselP9... Cynical distance is just one way -- one of manyways -- to blind ourselves to the structuring power of ideological fantasy: even if we donot 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 bigOther. 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, inother 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 upperlevels of Lacan’s graph of desire. Placing ideology solely on the side of knowledge isequivalent to restricting ideological critique to symptomal, deconstructive, andinterpretive readings (ie., the lower level of the graph corresponding to the universe ofmeaning). Opening up the side of activity to ideological analysis provides the key toisolating the fantasy and its correlative, the sinthome, that structure reality itself, ie., thevery ground from which our actions spring (ie., the upper level of the graphcorresponding to jouissance, the source of the big Other’s inconsistency).Chapter One: Setting the Stage for a lacanian Displacement 45The foregoing discussion centering on some of Lacan’s basic concepts, includingtheir implications for the critique of ideology, will serve as a backdrop for a more detailedelaboration upon his potential contribution to legal theory in the context of atransformative politics.Chapter One: Setting the Stage for a Lacanian Displacement 46Specifying the Lacanian Contribution to Legal Theory in the Context of aTransformative PoliticsIn considering more precisely the specific contribution of a Lacanian approach tolegal and political theory, it is perhaps helpful to begin by problematizing the status oftheory itself. For theory does not belong to a realm separated from the events of ourevery day lives (at least for those who seriously subscribe to it). Rather, it represents aworld view through which we apprehend the trivialities and vagaries with which we areconstantly confronted.Like any discursive formation, theories are identified by the unique signifierpatterns that congregate about specific issues (ie., the specific attempts throughsymbolization to grasp the real). Thus, issues concerning decision-making processes,interpretive constraint, and the rights discourse will be framed differently (and willtherefore give rise to different assessments) depending on the legal theory invoked:natural law, positivism, law and economics, materialist marxism, poststructuralistpostmarxism, etc.We can get some idea, therefore, of the specific nature of a Lacanian contributionto contemporary legal theory by looking at the manner in which it modifies currentapproaches to these issues. It is in this sense that we advocate a Lacanian displacement, adisplacement whose causal nexus is the subject and its failed attempts at identification.We have already suggested why we think our thesis goes beyond the traditionalpsychoanalytic forays into law. It is now incumbent on us to show, in more detail, whywe think Lacan can offer something unique to today’s theoretical debates in legalacademia, especially from the progressive standpoint. And we could abbreviate hiscontribution with two words: subject and ethics.Chapter One: Setting the Stage for a Lacanian Displacement 47The Subject of EthicsOne could argue that there is no political or legal theory that does not rely, eitherexplicitly or implicitly, on a particular epistemology/ontology and on a particular view ofsubjectivity or agency. And since one of the foundational and most powerful pillars ofpsychoanalysis is its theory of subjectivity, it will undoubtedly prove critical in anyendeavour first, to launch a Lacanian critique of existing political and legal theories, andsecond, to establish the contours of a revised theory.Psychoanalysis dispenses completely with any notion of an essential, unitary, andrational 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 bybeing reduced to) the number of discourses it traverses. Now, current legal theoreticianssubscribe 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, moreprecisely, a void. As we have already seen, the Lacanian subject, like the democraticsubject (according to Claude L.efort80),is the subject as lack: $.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 theoreticallandscape. In a first approach, we could point out how we are forced to reconceive thepsychoanalytic process of identification -- a process which currently serves as the mainfocus of many poststructuralist legal academics. Acts of imaginary and symbolicidentification are seen not so much as mechanisms of identity consolidation, but more asso many ways of evading the true lack of subjecthood. And can we not, here, detect theintimations of an ethics?We should remark that the above allusion to an ‘evasion’ should not be taken todownplay efforts made by minorities and the oppressed to create new identities. On theChapter One: Setting the Stage for a Lacanian Displacement 48contrary, reconceiving the subject as lack means that identity formation is an inevitableand crucial part of one’s psychic development. More importantly, it highlights the socialcharacter of the individual. It shows us that the subject is radically empty and at themercy 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 welook more closely at what propels the process of identification: the subject as lack and itsdesire to fill it.One of the key poststructural contributions to theory concerns the nature ofidentity: symbolic identity is differential; it is sustained by the bundle of its differencesfrom other signifiers in the symbolic order. Often, it is consolidated by its opposition toanother subject position which condenses a series of meanings. Thus, we very rapidlycome to recognize many such mutually supportive identities: Nazi/Jew,Patriarch/Feminist, Industrialist! Environmentalist, etc.To understand more precisely what psychoanalysis adds to this poststructuralistcommon sense, we could compare their respective strategic responses. And here theethical colours begin to show. Some poststructuralists advocate a non-violentrelationship to the Other as part of their strategy. Others advocate a proliferation ofidentities so as to diffuse the starkness of the oppositions. Now, the danger with suchprogrammatic approaches is that they can often come across as strikingly moralistic andself-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 approachescorrespond to the master (and university) discourses in which master signifiers areimposed upon the subjects. And, of course, this only highlights the difficulties faced byeducational institutions (at both the secondary and post-secondary levels) which attemptChapter One: Setting the Stage for a Lacanian Displacement 49to 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 formlooks remarkably modernist Indeed many, such as Gayatri Chakravorty Spivak, haveopenly assumed such a paradoxical stance by retaining the full poststructural rigour at thelevel of analysis but adopting the attitude of ‘strategic essentialism’ at the level ofplanning. Even so, as we have just seen, this approach seems to make little change interms of one’s world view and practice. One could even say that things are made harderbecause the historicist’s systematic reduction of practically everything to discourse,including the subject, means that we are left with precious little with which to garnersupport or to attach hope.Lacan, on the other hand, elevates historicity at the expense of historicism. Noteverything can be relativized for the real order resists all modes of symbolization. And itis in this sense that the subject, emptied of all content, belongs to the real dimension. Itexists as a meaningless stain, a point of singularity which defies gentrification. Whatmust not be missed, from the Lacanian perspective, is what makes possible the creationof the antagonism: the subject opens up the space into which its antagonistic subjectposition slips. In psychoanalytic jargon, this translates as the projection of our owninternal blockage onto an external Other which embodies the objet petit a, and whichtherefore constitutes the correlative of the subject as lack. In other words, the Jew is nolonger 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 theantagonistic Other the materialization of our own self-blockage; that your relationship tothe Other is an externalization of one’s self-relationship. We see, therefore, howprecisely this ethical attitude can be articulated. As soon as we succumb to thetemptation of filling in our lack so as to conceal it, we give in to our desire, and we fallChapter One: Setting the Stage for a L.acanian Displacement 50for the totalitarian temptation. The idea is not to avoid identification, but to avoid it as ameans ofavoiding our lack. This ethics, therefore, is formulated negatively (as was doneby Freud) as a call to resist the lure, to maintain a separation between the symbolicidentification and the lack which it veils. And we could add here that the traversal offantasy consists in nothing but the staging of this absence; that the fantasy invoked inresponse to the ‘cite vuoi?’ is nothing but the attempt to conceal the inconsistency of theOther.The relevance to legal theory should now be apparent. From a theoreticalperspective we see how it adds a crucial element to the study of law whose unit ofanalysis is the social relation; and also how it may cause us to reconsider both the attitudeand manner in which we go about considering issues of social transformation. It is nolonger sufficient to say that a social relation must be examined in terms of itsmultidimensionality; to describe how the dimensions of which it is comprised interactwith the legal dimension. Neither, however, is it sufficient to break down a socialrelation into its component subject positions and demonstrate how each is discursivelyoverdetermined; to show how each defines itself only through its opposition from theother. One can no longer rely on a model which subscribes to a traditional conception offalse-consciousness which purports to modify behaviour by demonstrating the illusionthat we are labouring under; to simply show how things could be otherwise; tohistorically contextualize a social relation; in short, to engage in symptomaldeconstructive readings whose premise is that more (but differently organized)information will effect progressive change, and whose result is often a kind offetishization 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 whichour thesis (in concert with the new social movements) is most concerned to address: bowto transform destructive antagonistic sites into less pathological agonistic sites.Chapter One: Setting the Stage for a Lacanian Displacement 51Symptomal readings are crucial because they are an important source of floatingsigniflers; they constitute indispensable elements for a kind of Hegelian ‘weaving of thespirit’. In other words, they are a means by which the surface lying at the bottom of atradition is disturbed-- a surface whose thusly unsettled and disengaged signiflers cometo embrace a newly discovered free-floating state. And it is from this pool of floatingsigniflers that new meanings emerge; that new jouissances are circumscribed.But if we take seriously the insights of Lacan, we find that though suchsymptomal readings are a necessary prerequisite to social transformation, they are notsufficient. Indeed, strictly speaking, neither is the much touted psychoanalytic traversalof fantasy -- the process by which we come to see not only that ‘things could have beenotherwise’, but that our identifications and imagined scenarios conceal nothing, a lack, avoid in ourselves and in the Other. Rather, the stake of psychoanalysis is to create thecircumstances in which the analysand can come to identfy with the sinthorne; to realizethat the form of the symptom betrays her real jouissance; to recognize in the antagonisticrelation to the Other (the symptom) the truth about herself; to fully assume, rather thanevade or cynically alienate, the fetishistic split that defines our very condition humaine.We can now better understand Lacan’s ethical stance toward the socialtransformative project. And perhaps we could also consider it against the background ofthe current dilemma that faces many critical legal theorists, especially feminist legalscholars. 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) byour confrontation of the radically contingent nature of social construction. If everythingis political, if my opinion is as good as yours, if values are always relative, how can wejustify our appeals to a ‘better’ norm, to a more ‘equitable’ standard?At the outset, we should note that appeals to a ‘better’ explanation or narrativeneed not be seen as negating the plurality of perspectives. Indeed, one could say thatChapter One: Setting the Stage for a Lacanian Displacement 52such appeals rely on it. For such a view queries the rigid and essentialist temptation todefine, for example, what ‘really’ constitutes woman. In its place we find a more fluidcategory, whose character is always determined by the particularity of context. Fantasy,in other words, is always characterized by specificity of signifier constellations. It resistsuniversalization. The implication, of course, is that incompatibility between fantasies isinevitable, that hegemonic interpretive battles are a natural, and even welcomed,outcome. Such an approach dispenses with ideas which subscribe to the notion thatoppression can and should be eradicated once and for all, for such projects entail givingway to the totalitarian temptation of defining in advance all possible substantive evils.Rather, the poststructural psychoanalytic strategy advocates that we deal with each caseone by one, and by resisting the temptation to uniformly and arbitrarily apply the rules.And the practical relevance of such observations to environments comprising disputeresolution 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 ofone never imposed on the study of another. In terms of [the] feministproject, this means that.... it attempts to determine, through analysis, thespecific concept of woman that each discourse constructs and the specificactions it directs toward her. The oppressive notion of woman’soppression’ thus vanishes and is replaced by detailed descriptions of thepractices that bring a particular category of woman into being, excludeher, make her visible, invisible, valuable, redundant, dangerous, etc.Vanished, too, is the dream of a total revolution that would deliverwoman’s freedom. Dreaming is replaced by intervening -- one by one --in practices that can only limit power, never totally deny it.81But these reconsiderations, which have been prompted by the barrage of critiqueslaunched from within the feminist movement, and which are becoming more and morecommonplace in virtually all critical legal movements, still remain firmly within thepoststructural problematic. And while such reformulations are important, they, likesymptomal readings and fantasy-traversals, are not sufficiently up to the transformativeChapter One: Setting the Stage for a Lacanian Displacement 53task. This is because the emphasis is more on the hegemonic and hermeneutic strugglesrather 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 todiscern. In a way, we could say that by defining the subject as real, as dehiscent, the deckis stacked in their favour. Why? Well, because it offers us something constant;something which repeatedly defies all our attempts to gentrify it; something whichpersistently resists all modes of symbolization; something that has the property ofinvariance, much like Einstein’s theory of relativity exhibits the property of invariancefrom one spatiotemporal frame to another. In other words, it attempts to overcome theimpasse confronting theorists whose models appear to be stuck between two horns: theappeal to the notion of shared values and the notion of a conflict of values. Lacansuggests we dispense with the pre-Kantian idea of a substantive subject and replaces itwith the substanceless point of pure apperception, the Cartesian subject in all itsabstraction. 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 notquite for, as Zizek points out, Rorty still associates pain with the breakdown of specificimaginary and symbolic identifications. (LA, 158) So, he ends up with just anothervariation on the value theme. He misses the real dimension which such identificationsattempt to appease, and the possibility of expanding the purview of empathy is therebylost. In other words, the ability to empathize is still attached to the idea that we mustshare some common experience, some common symbolic or imaginary identity. And isthis not one of the central arguments in support of policies of positive discrimination?82That white heterosexual middle class males just do not have the experience to justifygenuine 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 lackof empathy at the radical level of the real. In this sense, therefore, it has very little to doChapter One: Setting the Stage for a Lacanian Displacement 54with the standard, but valid, counterargument which suggests that, strictly speaking, noexperience can ever be identical-- an argument which is responsible, for example, for theongoing minority-propelled phenomenon of feminist movement multi-furcation. Indeed,it goes in the opposite direction: it expands the empathizing group. And what’s more, itexplains the otherwise anomalous situation in which a white heterosexual middle classmale can and does genuinely empathize and fight for a seemingly unrelated-to-himprogressive cause.This is because Lacanian empathy lies on the level of the real. The subject as lackimplies a desire to fill that lack, and that is the condition that we can empathize with. Weeach have our own very personal history; our unique narrative; our specific trajectory ofexperiences; our own historically contingent series of imaginary and symbolicidentifications. But the real lack is the rock that stands firm, the immutable wound thatdefines 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’. Thiswould involve recognizing that the contingent nature of one’s own fantasy construction isjust one of many ways that our lack can be appeased. We then achieve a certain distancefrom our fantasy without compromising its crucial role in structuring our lives. Weperform 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 toempathize with another subject; that we can come to regard another subject’s fantasy withreverence. (LA, 156-157)Now, it is true that the idea of the subject as lack can come across as being undulydepressing and tragic. What remains, therefore, is for us to transform this reaction-observation into a positive theoretical proposition. Do we have to remind ourselves ofhow disasters and tragedies have a remarkable bonding effect? Is this not related to theChapter One: Setting the Stage for a Lacanian Displacement 55intuition that led Rorty to suggest pain as the foundation for solidarity? So, by heedingour earlier critique of Rorty, all we need do is locate this ‘disaster’, this dehiscence, onthe 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 denominatoramong human beings, not some appeal to shared (or conflicting) values -- an appealwhich operates at the levels of the imaginary and symbolic. Perhaps we can betterunderstand now our earlier statement which made synonymous the redefinition of thesubject 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 canethically orient our lives.The Function of Law: Justice or Appeasement?The ethics of resisting the lure83 is, of course, applicable to the legal decision-making process. The lure is comprised of the rules and the institutional and personalbiases that frame the issue. We could say that a properly ethical or just decisioncorresponds to the Lacanian act, the paradoxical manner in which one both follows theLaw (the big Other) and suspends it. It marks a impossibly sharp point of pureundeciclability by which the final link which tethers us to the Other is severed. And it ishere that Derrida comes closest to the dimension of the real. For, in discussing his notionofjustice 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 ifthere is one, be both regulated and without regulation: it must conservethe law and also destroy it or suspend it enough to have to reinvent it ineach case, rejustify it, at least reinvent it in the reaffirmation and the newand free confirmation of its principle.84Chapter One: Setting the Stage for a Lacanian Displacement 56And, of course, this moment of pure singularity corresponds to the subject as lack whichalways already was in the past and never is in the present. It is what installs a gap in thesubstance which can only be retroactively inferred from a structural inconsistency. Wecould say that the process of legal decision-making, strictly speaking, corresponds to thepsychoanalytic process whereby the hysteric is appeased. For the hysterical subject isone whose lack has become exposed and who desperately seeks to be filled. Hence, hissearch for a master, for someone who will attempt to cover up the real wound with mastersigniflers.And can we not see here what Zizek has in mind when he talks of the appeasingnature of law? The anxiety we feel in making or awaiting a decision relates not to thedistance that separates us from some long lost (Mother-) object with which we seek tomerge. Rather, it signals our overproximity to loss itself -- an overproximity whichtempts us to seek a master by engaging in either the discourse of the master or thediscourse of the university. And Law is just such a discourse. From the perspective ofscholars who concern themselves with social change in the context of law, the appeasingfunction of law should not be underestimated. Appeasement corresponds to alienation inthe big Other, and its effect is felt from the very moment a (hysterical) subject seeks theservices of a lawyer. And this pacifying effect does not derive simply from theknowledge that a wrong may be righted, or that one’s interests will be represented, or thatjustice will be done. Rather, the appeasing effect resides in the very act of transformingone’s status from subject to individual; the act of transcribing one’s complaint into theformal language field of the big Other. In other words, legal pacification has little to dowith the pleasure principle which relates to incentives and rewards. It has to do withdistancing 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 57But there is something more in this shaping of the complaint. While yourlawyer filters, posits and formalizes your complaint, you realize thatsomewhere you are satisfied. In the process of formalization itself, eventhough nothing has been done to mend your displeasure, which is alwaysthere, and causes the whole affair, in some place you are happy, happybecause your displeasure has been formalized. Your are happy I may say,despite having infringed the pleasure principle. Therefore you graspmaybe 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.85On AuthorityIn returning very briefly to the question of justice in the legal decision-makingprocess, we could perhaps broach the issues of legitimacy and authority. (We havealready touched on the issue of justification (S2) as it relates to the decision (Sl) in oursection on Lacan’ s mathemes.) Of course, by doing so, we are launching ourselves intothe very traditional debate on the nature of law: what ‘is’ law? But we will not evenattempt 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 withan alternative way of conceiving the binding effect of law. In particular, it shows us howhis conceptual apparatus, especially as it relates to the real order in general, and the objetpetit a in particular, has an uncanny affinity for paradox. And this peculiar predispositioncan assist us in better apprehending paradoxes and inconsistencies. In this sense, wecould say that we experience the appeasing effect of Lacan’s own big Other, ie., histheoretical panoply. And the relevance of this conceptual apparatus is, of course, notlimited to law, nor to specific subdiscourses of law.Here, for example, we could use our discussion on legal obedience as an excuse toaddress the (traditionally) vexing question: is international law ‘really’ law? We beginChapter One: Setting the Stage for a Lacanian Displacement 58by noting that the question whether international law is law is phrased in a manner thatsuggests that it can be answered only after one has arrived at a particular conception oflaw itself. If, for example, law is conceived primarily in terms of enforcement (ie., interms of orders backed by realizable threats, whether physical or economic), as JohnAustin argues, we may get one answer. If, alternatively, law is conceived primarily interms of criteria of legitimacy and validity (as in a contract bargaining process whoseresultant treaties could be said to have an international jurisdiction) such that secondaryrules of recognition can be discerned with an eye to settling conflicts between primaryrules of application, as Hart argues,86we may get another answer. And so on.What the poststructuralist tells us is that lurking behind the term ‘really’ in ourquestion is the essentialist temptation so clearly succumbed to by those belonging to theschools of Natural law (whether in terms of God or Reason) and Positivism (whether interms of rules or state actors). Such foundationalists subscribe to something inherent,inevitable, and unchangeable in the nature of law. What a Zizekian approach highlightsis the affinity of the question ‘what is law?’ with the equally confounding question, ‘whatis (transferential) love?’ In both cases we are dealing with the psychoanalyticphenomenon of transference; and insofar as law is bound up with the concept oftransferential authority, it may prove helpful to examine this in more detail.Following Kierkegaard, Zizek specifies the foundation of authority: “the ultimateand only support of a statement of authority is its own act of enunciation.” (ES, 94) Morespecifically, it tells us that authority which is founded upon punitive threats is not, strictlyspeaking, 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, wefeel obliged to follow it unconditionally.” (ES, 94) This is why authority has aparadoxical flavour to it. On the one hand, we respond to the call of a statement notbecause of its contents, but because of the authority vested in the enunciator; and on theChapter One: Setting the Stage for a Lacanian Displacement 59other hand, we only accept such authority on the condition that the messenger is madetransparent to the message. So where, then, does authority lie? The answer, of course, isin the objet petit a: the empty set constituted by the intersection of the messenger’spersonal characteristics (his institutional links, for instance) and the message’s content. Itconstitutes 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 morethan itself: the objet petit a of authority.On the MaterialistlPoststructuralist OppositionSo far we have discussed issues relating to the topics of the subject and ethicsfrom a Lacanian perspective, and we are now moving on to consider the nature oflanguage and its relationship to non-linguistic entities. We will therefore examine inmore detail Lacan’s stance in regard to the epistemological and ontological debate as itrelates, for example, to the materialism/discourse opposition.But before going on to talk about the specific contribution that psychoanalysismakes in reconceiving this dichotomy, it is perhaps worth reminding ourselves of thetraditional debate, with the poststructuralists on one side, and the materialists on theother. The materialist critique of the poststructuralist position points to an undueemphasis on language-games at the expense of concrete power relations. The message ofmaterialists can be conveyed anecdotally: ‘enough of empty words, lets get down tosome serious action’. Such calls are common. Indeed, we could risk the generalizationthat 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 notrequire detailed justification. This is not to say that such criticisms are alwaysChapter One: Setting the Stage for a Lacanian Displacement 60unwarranted. Indeed, it sometimes seems that poststructuralists are oblivious to thepower of the words they themselves use; or underestimate the rhetorical force of appealsto an ‘external reality’. But what many try to point out is that the proliferation of glibdismissals may harbour the danger of missing the significant poststructural contribution.In other words, at the level of empty criticism, the poststructuralist could just as easilyretort that power relations themselves obfuscate the materiality of the signifier. It is,poststructuralists insist, the material nature of court-room language-games which result invery real effects87 (or, to invert the above anecdotal gibe, as Zizek does, ‘enough ofempty acts, lets get down to some serious word-games’). This is why Lacan, in hispoststructuralist guise, often referred to books as kilograms of signiflers: to emphasizetheir materiality: Power relations are themselves an effect of the structure of thesignifier.88 In other words they must be seen as abbreviations of specific signifierconstellations.89For purposes of clarity, we have portrayed the debate as highly polarized. Ofcourse, many who engage in this debate find themselves at different points along thespectrum-- a spectrum whose extremes can be characterized by those who, on the onehand, wish to establish non-linguistic materiality as the social determinant of the ‘lastinstant’; and those who, on the other hand, wish to establish discourse as the socialdeterminant of the ‘last instant’. And the relevance to the contemporary debate on therights discourse should be readily apparent. Are rights determined by a material ordiscursive matrix? Do these two extremes not also share a homologous affinity with thepolar opposites in the traditional dichotomies of content/form or substance/process?Perhaps we should now consider how Lacan contributes to the debate. At firstsight, it may seem that his linguistic forays betray him as a die-hard poststructuralist. Is itnot the case that he adds nothing which could rupture the circular nature of ourentrapment that he does not assist us in achieving some distance from the entrancingeffect of the harmonic system-- a system defmed by the theoretical pendulum that swingsChapter One: Setting the Stage for a Lacanian Displacement 61from one extreme to the other? Our position, of course, compels us to answer in thenegative; that Lacan does indeed introduce a crucial displacement whose effect is totransform the hypnotizingly repetitive circle into a more productive spiral. We couldeven say that Lacan’s own theoretical trajectory outlines this spiral. From his earlyimaginary-substantive phase, he moved onto his symbolic-structural phase and finallycame full ‘spiral’ to his real-paradoxical phase. Lacan’s displacement could also beconceived in terms of the Mobius strip: if we progress far enough on the side ofdiscourse, we end up on the side of ‘external reality’. Or, if we progress far enough onthe side of form, we end up on the side of content. He suggests that everything cannot bereduced to discourse; but, at the same time, the real which escapes discourse does nothave an a priori status which serves to constrain it. Hence its paradoxical status: the realdimension is both presupposed (jouissance) and posed (objet petit a) by the symbolicorder.In order to more fully appreciate this displacement, we could expose thepresupposition that unites the two extreme positions as outlined above. And that is thehighly deterministic (in the case of the materialist) or overdeterministic (in the case of thepoststructuralist) nature by which the social is conditioned. In other words, they bothsubscribe to a theoretical model of the universe which is linear and causal, even if thecomplete network of causes and effects cannot be mapped out in practice. Lacan makeshis mark by installing a gap in the causal chain, a gap which is subsequently effaced, andwhich is responsible for our intuitive sense of free-will and contingency which is alwaysretroactively converted into (over)deterministic necessity. And this gap, which alsoaccounts for the linguist’s version of psychoanalytic castration, is nothing other than theLacanian 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 62The paradox, of course, is that though the real order resists and escapes thesymbolic and imaginary orders, it constitutes their only support. Signifiers congregatearound, and attempt to gentrify, real disruptions of the symbolic surface. These rawpockets of jouissance, then, are what provide the ‘sticky’ substance that accounts for thestructural 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 isindeed 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 theoryand 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 almostinfinite range of possibilities-- a state of potential anarchy. Yet, once we move from themicroscopic to the macroscopic, we find that there is an unmistakable order, which at thatlevel, seems to justify the appeal to such notions as predictability and probability. We arereferring, of course, to the phenomenon of emergent behaviour, a theoretically sound andexperimentally-verified occurrence which applies to a wide spectrum of activities foundin biological systems (as in the theory of evolution), physical systems (as in the transitionfrom the quantum level to the macroscopic level), economic systems, etc.Now we should, perhaps, pause to consider the reason Lacan is oftenmisconstrued as a (traditional) poststructuralist. What we need to realize is that the realpsychoanalytic substance (fouissance) that sustains the symbolic order can be accessedonly through the signifier. It is only through a close study of discursive patterns ofrepetition, inconsistencies, etc., that the discursive structure’s interstitial glue can begrasped. Thus, his prioritization of the signifier, and the symbolic order in general, is inChapter One: Setting the Stage for a L.acanian Displacement 63recognition of the fact that, for instance, a particular signifier constellation is what betraysthe presence of jouissance. It is the signifier pattern that points to an object’s subliminalor, alternatively, disgusting status. (This is also related to Lacan’s concept ofseparation.) The line between them is a lot finer than we would suspect and is strictlydependent on the object’s location in the particular culture’s symbolic universe. In otherwords, how an object gets caught in the symbolic web will determine its status as either asublime (Freudian) Thing, or a disgusting protuberance. And its status is alwaysprecarious. The transition from one to the other is what Lacan referred to in his FourFundamental Concepts ofPsychoanalysis (FC) as the operation of changing the ‘preciousgift’ into a ‘gift of shit’. Here, we might think of the ancient Chinese practice of footbinding, or the tribal practice of adorning women with a series of ring necklaces so as tophysically extend the neck. Perhaps this indicates to us, as Zizek notes, another form ofideological 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 culturaldifferences are often taken to indicate the superiority of one over the other rather than thecontingency of each.In an effort to further expose the inextricable link between the real and symbolicorders, we may recall our explication of the role of the objet petit a in countering thedescriptivist’s epistemological-ontological view. Was that not a clear example of howsuch a real substanceless object is both presupposed and produced by the symbolic order?Could we not say that it pushes the discursive-poststructuralist/material structuralistdebate beyond the symbolic/imaginary opposition and into the paradoxical realmcharacterized 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. Thesymbolic order (language, culture), just like the Laclau and Mouffean Social, is traversedChapter One: Setting the Stage for a L.acanian Displacement 64by real antagonisms; and the imaginary order is responsible for reifying the projection ofthis internal real impediment as an external Other.A final alternative in conceiving the move beyond the poststructuralistlmaterialistsnare is to realize how each position subscribes to a teleological model of the world. InLacanian terms, they both misunderstand the male ‘all’ logic, a logic that even Derridamisses, according to Zizek, when he criticizes Lacan’s famous conclusion that ‘the letteralways arrives at its destination’ (ES, 12). In a style homologous to the illusory processof interpellation, each assumes that the addressee (‘external reality’ in the case of thematerialist, ‘signifier’ in the case of the poststructuralist) precedes the ideological call.Thus, Lacan problematizes this teleological presupposition and offers us a realalternative: the paradoxical and retroactively contingent creation of a cause.On Superegoic Repression and the Desire of RightsHow else can we conceive of the Lacanian contribution to legal theory? We couldhighlight how he offers us a standpoint from which to critique Foucault’s concept of lawin a way which makes it relevant from the point of view of scholars interested in socialtransformation. As we have noted elsewhere, law for Lacan is associated with the bigOther. Now, Foucault went to great lengths to point out that the law (and otherdisciplinary apparatuses), despite its prima facie prohibitory guise, functions to present orproduce the object of desire. In Lacanian terminology, when the split subject looksoutward for an object to fill its void, the law (as big Other) provides a means to satisfythat desire. Foucault repeatedly emphasized the productive function of disciplines(discourses of sexuality produce sex) and dismissed a more negative or repressiveChapter One: Setting the Stage for a Lacanian Displacement 65function-- an observation which constituted the foundation of his attacks onpsychoanalysis.In taking up this last point, it should be noted that, though his insistence on theproductive aspect of regulation did much to change the traditional approach to discourseanalysis in which the regulatory object was somehow defined in advance andindependently of the discursive process, Foucault also managed to misrepresent thepsychoanalytic notion of repression by confusing its two incarnations and by missing thesubtlety of the notion he intended to criticize.90 The first version of repression refers toprimal repression, ie., the negation which both founds and splits the subject. It signals thesubject’s accession to the symbolic order through the expulsion of the real, makingcommunication possible and laws intelligible. We come now to the second version ofrepression, the one that Foucault takes aim at in his tirade against psychoanalysis. Theprimal negation, having made laws conceivable, opens up the possibility of viewing lawas either productive or repressive. And in one sense, psychoanalysis (by which we meanboth Freudian and Lacanian) would affirm its productive aspect. It is productive, asalready mentioned, because it creates a desire targeted at the object being prohibited. Butwhat usually gets missed (most notably by Foucault), is the fact that desire also folds inon itself so that what is produced is not only a desire for the forbidden object, but also adesire not to desire the forbidden object. The psychaonalytic name for the agencypresiding over this latter desire is the superego, and it accounts for the feeling of guilt weexperience after an act of transgression-- a phenomenon which is unaccounted for usingthe 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 aimto effect behavioural modification through legal means. And perhaps we can brieflyremark on the relevance of Lacan’s concept of desire to the discourse of rights.Chapter One: Setting the Stage for a Lacanian Displacement 66We will not here engage in the traditional debate raging in the critical legalstudies literature concerning the progressive potential of the rights discourse. In thatdebate traditional marxists argue that the form of rights is too strongly imbued with thedominant and individualistic form (of the capitalist mode of production) to serve as auseful tool in bringing about meaningful change. Taking their cue from currentpoststructuralist theories of language and action, post-marxists dismiss the attempt to linkrights to material economic conditions ‘in the last instance’ as a profoundlyfoundationalist gesture. They argue that marxists undere’stimate the function ofdiscourse. In this view, the transformation of rights into a progressive instrument is madeplausible by creating new alternative equivalential links.While acknowledging the importance of such a discussion from the perspective ofa transformative politics in general, our purpose is only to hint at a possible alternativeapproach to the issue. Here we will have recourse to Lacan’s theory of the dialectic ofdesire.Marx’s well known critique of the abstract nature of rights focuses on itsideological function, ie., the operation by which underlying inequalities are concealed.As already mentioned, many CLS scholars further push the point home by arguing thatrights 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 thediscourse of rights operates, argues very strongly for their retention. He agrees that thereis 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 keepthese two notions separate.) Nevertheless, the danger attached to the absence of rights asempty universals would be far greater. Rights are, he insists, indispensable to our modernnotion of democracy because they serve as the empty space from which a critique ofexisting social relations is made possible in the first place. It is the appeal to a universalwhich is responsible for the split between power and legitimacy.Chapter One: Setting the Stage for a 1_acanian Displacement 67In 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 ofthe democratic project is to keep this place, the democratic subject (homologous to theLacanian subject), empty. As soon as we attempt to define the subject by enumerating orcodifying its subject positions, we fall into the totalitarian trap. It is in this sense that wecan say that it is undesirable to exhaustively present all our rights. A Lacanian caveat inimplementing the discourse of rights for progressive purposes, therefore, would be that itmight give us the impression that we have found our object(s) of desire: all we have todo is describe them and transcribe them into legal form so that our society may at last befree of conflict. This would constitute a fantasy in need of traversal.92Lacan as a Poststructuralist: Strategies, Power Relations, and StructuralConstraintWhat is clear from a Lacanian approach to legal theory, is the relevance andimportance of the function of the signifier in concealing a lack or impediment. Thesignificance of discursive (symptomal) analysis stems from the fact that it is the solemeans with which we may isolate the real jouissance (as in, for example, the Laclau andMouffean social antagonism) which structures (and is produced by) the symbolic order(ie., the discursive formation). Discourses must be scrutinized for those couplingsignifiers (woman, gay, proletarian) responsible for interdiscursive connectivity and forthe transmitted equivalential logics. Ideological and psychoanalytic investigation mustthen attempt to map out the social psyche in terms of the master signifiers that structureit. In the broadest of terms, this is done by identifying patterns of repetition andChapter One: Setting the Stage for a Lacanian Displacement 68inconsistency 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 investigationconcerns 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 theyinteract with a person’s or society’s symbolic order. Psychoanalysis is thus a socialscience of signifiers, not of hard facts existing in some ‘external reality’. Poststructuralistpsychoanalysts, such as Lacan, are often accused of denying the reality of such things asphysical pain and psychic anguish; of not taking seriously the plight of marginalizedgroups by reducing everything to language games. Such analysis, critics charge, ignoresthe truth of political dynamics and power relations.Of course, it would be silly to assert that we cannot feel something when we stubour toe unless we can label that experience with an appropriate signifier. What Lacanattempts to point out, however, is that what is important from the perspective of socialanalysis is how that phenomenal sensation is localized by the symbolic order. There issimply 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 oursymbolic universes because it is they that cathect and circumscribe our jouissances. Thisdoes 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 froman 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-mediationis to engage in the metaphysical quest for an ultimate truth. Thus, critics who dismisspoststructural psychoanalysis for the reason that it reduces objects and relations tosignifiers miss the psychoanalytic mark. From the strategic point of view, one is notinterested in correspondence theories per Se. Rather, one is interested in howChapter One: Setting the Stage for a Lacanian Displacement 69representations themselves are formulated through signifier chains, and how those chainslink up with other chains in a way which serves to appease our lack.93Power RelationsThis brings us nicely to the topic of power relations. The usual materialistcritique is merely a replay of the language/external reality opposition. Surely, the criticsexclaim, poststructuralists’ emphasis on language ignores the very real power relationsthat imprint any given social milieu. Here again, the poststructuralist could again pointout that an emphasis on power relations is not analytically helpful when it comes tostrategizing. This is not to say that talking in terms of power relations, or of physical andformal (political, legal, etc.) structures are not useful per Se; that they cannot serve asuseful concepts in explaining how a range of ideas or outcomes can be confined to acertain range of possibilities. Rather, from the poststructural point of view the danger isthe possible and frequent elision exhibited by the passage from an object’s or relation’scharacteristics to an object or relational essentialism. In other words the signfiers becomefixed to an external reality, and the opportunity for formulating alternative equivalentiallogics 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 upthe topic of power relations in detail, for we shall discuss them more thoroughly in laterchapters. We will only mention that Laclau and Mouffe’ s typology of relations (in termsof subordination, domination, and antagonisms) reveal an insightful link between thetraditional poststructural approach to power relations and what might be conceived as aLacanian poststructural approach to power relations.Chapter One: Setting the Stage for a Lacanian Displacement 70Structural ConstraintHow can we make structural constraint relevant to law? In a first approach, wecould cite examples of structural constraint which occur in the domain of law, forexample, the time for legal argument, rules for admission of evidence (eg., nativenarrative histories, sexual assault admissibility rules), rules regarding interveningarguments. But, we could also tie the issue of structural constraint to interdiscursiveconnectivity. Law can be conceived as a site of political transformation, a site ofideological confluence, or as itself a source of ideologies. For present purposes, we couldperhaps use the idea of scripts to describe law. We have a set of rule-like scripts whosevariables are combined in a specific fashion and whose outcomes can have physical anddistributional consequences ranging from the minimal to the extreme. These mightinclude voting or citizenship eligibility, incarceration, damages, or medical and otherbenefits for couples. Thus, the legal process involves the transcription of facts intolegally recognizable (client-favourable) phraseology. In tort law, for example, facts maybe used to bolster one or more factors going to the standard of care tests of what areasonable person ought to have foreseen, or of what a reasonable person ought to havedone once armed with that foresight. The importance of legal definitions and scripts canbe 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 ormutually exclusive to the point of not recognizing the category of ‘marital rape’. Theimpact on women in traditionally conceived couples is not too hard to imagine. Theimpact on individuals as members of same-sex couples is more complicated, but realnevertheless.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 orChapter One: Setting the Stage for a Lacanian Displacement 71statement) is repeated, the system with which such behaviour is affiliated is marked by acertain rigidity. And to the extent that such repetition is normalized, as in the judicialpractice of precedent, we have ‘legislated’ constraint (and thus legitimation). In otherwords, legal principles can be said to constrain to the degree that there is a clear dividingline between permissible and impermissible signifier links. This explains, for example,the crucial importance of setting up the facts even before legal argument begins. It alsoexplains the difficulty with which new equivalential links may be introduced, such asbetween ‘person’ and ‘woman’/’person of colour’; or between ‘couple’ and‘gay’!’lesbian’; or between ‘family’ and ‘homosexuality’; or, in the context of religiousinstitutions, between ‘priest’ and ‘woman’/’gay’; or , in the context of politicalinstitutions, between ‘rights’ and ‘relationality’/’ state intervention’.It is clear, therefore, that the supreme ideological gesture invoked by the conceptof ‘constraint’ (and its ‘henchconcepts’ of precedent or citation) involves its performativeforce-- a force which gives it an air of inevitability. As is the case with any interpellativeact, we assume a symbolic mandate not because we recognize ourselves in the call butbecause our very act of recognition retroactively posits a symbolic mandate to beassumed. In the context of the disciplines of sexuality, Judith Butler, invokes Den-ida’sconcept of citation, to make a similar point: “[I]f a subject comes to be through asubjection to the norms of sex, can we read that ‘assumption’ as precisely a modality ofthis kind of citationality? In other words, the norm of sex takes hold to the extent that itis ‘cited’ as such a norm, but it also derives its power through the citations it compels.”94From a strategic point of view, therefore, we may wonder how we might produce a kindof Derridean iteration, ie., how we might introduce a slight displacement in the citationalpractice so as to effect a more pronounced disruption of an intended closure. At theintersection of law and sexuality, Butler inserts the following question: “What would itmean to ‘cite’ the law to produce it differently, to ‘cite’ the law in order to reiterate andChapter One: Setting the Stage for a Lacanian Displacement 72coopt its power, to expose the heterosexual matrix and to displace the effect ofnecessity?”95Consideration of such a project should not be taken as a simplistic affront tonotions of predictability and legitimation, and a corresponding apotheosis of uncertaintyand wild abandon. Rather, it should be taken to problematize practices whose legitimateexistence depends heavily on repetition and convention. Such strategies are meant tocreate the space for new mental maneuvers and to give confidence in exploring newmodes of thinking. The Lacanian conception of the subject gives us a powerfulexplanatory model which accounts for strong institutional resistance to change. It tells usthat such traditionally rigid symbolic orders as those of the Church and Law are apossible (but not inevitable) consequence of the subject’s and society’s split. Institutionalopposition to new ideas is related to the anxiety experienced when we come too close tothe objet petit a, ie., when we begin to sense the utter contingency and meaninglessnessof our existence, and that things could just as well have been otherwise.The above examination of the concepts of ‘power relations’ and ‘structuralconstraint’ are not, of course, meant to solve difficult issues, to provide ready-madeanswers to troubling questions. Rather, they are meant to permit a reconceptualization ofthe terrain on which debates take place. So, when a progressive lawyer is fighting acustody battle on behalf of a lesbian mother, the question remains: does one riskentrenching 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 willgrow up straight? Or, does one attempt to insert a displacement in the well-worn tracksof 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 hearingthe case, and so on.96 The point, however, from a Lacanian perspective, is to understandthe mechanics of identification and the function of law in appeasing society’s dehiscence.Chapter One: Setting the Stage for a L.acanian Displacement 73It helps us recognize that, though practices usually do constrain, they need not do so. Onthe one hand, it keeps us on our toes such that we may grasp an opportunity for changewhen it arises (as opposed to resign ourselves to ‘fate’ and ‘inevitability’). And on theother hand, it jolts us from complacency; in other words, it shows us how signifyingpractices can have profound effects on people caught in its cracks and folds.Chapter One: Setting the Stage for a Lacanian Displacement 74ConclusionThe purpose of this chapter was to serve as an introduction to some basicLacanian ideas, especially those pertaining to a new ethics of subjecthood; and to brieflyconsider their potential value in reconceiving legal theory in the context of atransformative politics. It is acknowledged that some legal concepts were dealt with inless detail than others, and that some concepts were not even mentioned. However, weintend to deepen our psychoanalytic sensibility vis-a-vis legal and political theory in thefollowing chapters.The idea was to introduce a new perspective so as to reformulate currenttheoretical impasses and paradoxes. In a way the aim was to introduce new floatingsignifiers so as to facilitate a disruption of well-worn thought patterns and create anopportunity for new meanings, new connections, creative capitonnages. As such, themessage that psychoanalysis has to offer is that a progressive strategy would be moreeffective if its energy were directed less at attempting to control specific content andmore at attempting to foster an attitude of deferral or Derridean djfferance. In otherwords, good intentions and the promotion of ‘better values’ are no longer sufficient forprogressive change. That is not to say, however, that content is of no concern. Itcertainly 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 increasinglyinformation-based society. Nevertheless, there is an important ethical shift to be madeaway from simply countering certain values with other values, toward a response-orientedapproach in which certain values are questioned/subverted without aggressivesubstitution77To conclude, we reiterate that the object of our thesis is to begin to rethink andrearticulate traditional problems and concepts (both from a theoretical and strategic-Chapter One: Setting the Stage for a Lacanian Displacement 75practical perspective98)through a Lacanian lens. The important message we wish toconvey is the danger inherent in any approach which subscribes to the belief that it ispossible to achieve a (politico-legal) totality devoid of (ant)agonism, whether on the levelof the social or on the level of the individual. In this respect and in following ChantalMouffe, 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 (whichevokes the idea of (ant)agonism and hegemonic struggle).Chapter One: Setting the Stage for a Lacanian Displacement 76Notes to Chapter One1Lacau, Jacques, The Four Fundamental Concepts of Psychoanalysis, Jacques-Alain Miller, ed., AlanSheridan, trans. (New York: W.W. Norton, 1978) at 263.2Chomsky, Noam, ‘An Interview’ (1989) Radical Philosophy 31 at 32.3Hunt, Alan, Explorations of Law and Society: Towards a Constitutive Theory of Law (London:Routledge, 1993).4Zizek, Slavoj, ‘Beyond Discourse Analysis’ in Ernesto Laclau, New Reflections on the Revolution of OurThne (London, Verso, 1990) at 254.5The remedy, however, is not to be viewed as a panacea, of making things ‘fine and dandy’; but rathermore in the style of ‘the wound is healed only by the spear that smote you’. (TN, 165) It entailsrecognizing that, though language is responsible for the subject’s split (in the same sense that society issplit), it is also our only source of consolation.6llere, we might mark the confluence of social and physical sciences from the perspective of complexity(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 canbe described using a set of rules: metaphor and metonymy. It is the interaction of large numbers of suchunits 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 ofthe second law of thermodynamics). Complexity theory has been used to explain such patterned behaviouras that of a flock of birds negotiating an obstacle in their line of flight or the emergence of mind from anetwork 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 ofcomplexity theory) to build computer software specifically with social and political theorists/strategists inmind.The general idea is that one need not predict outcomes with exact specificity; that one can learn agreat deal from patterns and forms, as in the study of weather patterns in meteorology. Thus, notions ofstrange attractors and the Lacanian objet petit a could be conceived as mathemes which permit aninvestigation into the limits of theory. But in what sense can we say that the science of complexity altersour 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-chaostheory shows us that, for complex adaptive systems, the space of possible steady-state solutions/finaloutcomes is, in contrast to standard linear systems, drastically reduced. This is why the standard Darwinianmodel must be revised. For example, starting with 200,000 bulbs (or genes), each connected to any twoothers 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 topass through the entire space of possibilities (subjecting each to the principle of natural selection) forecastby 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 significantlyreduced set ofpossible final states. It is worth noting again that the specific characteristics of the long-termfinal 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.7mis difference in emphasis is not at all meant to present the two approaches as mutually exclusive.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 amore engaging examination of concepts within postmodernism)poststructuralism itself. This difference inemphasis can be seen, first, in poststructuralism’s preoccupation with the idea that meaning is alwaysoverdetermined or intertextual, that what one says always either is in excess or falls short of what oneintends to say, that what one means to say is always subverted by a negative supplement; whereaspsychoanalysis is more concerned with the process by which the slippage of the signified under thesignifier is halted (through the process of capitonnage). Second, poststructuralism often works with theassumption that the juxtaposition of intended meaning with its exposed negative supplement is sufficientfor the effect of subversion to take place. In other words, there is an implicit subscription to a rationalistmodel of the world. Psychoanalysis problematizes this. Third, psychoanalysis exposes the somewhatChapter One: Setting the Stage for a Lacanian Displacement 77‘safe’ poststructuralist position that ‘there is no metalanguage’ as itself a metaphysical symptom. Ratherthan take ‘there is no metalanguage’ to mean that there is no pure transparent object language (ie., a thirdmedium through which an ‘external reality’ can be apprehended without distortion), psychoanalysis prefersthe maxim to be interpreted as indicating that there is nothing but object language — specifically, thelanguage of the objet petit a. (SO, 158) Fourth, poststructuralism construes the subject as a collection ofsubject positions, whereas psychoanalysis construes it as a lack.8Miller, Jacques-Alain, ‘Duty and the Drives’ (1992) 6(1/2) Newsletter of the Freudian Field 5 at 5-6.91t is in this sense that psychoanalysts can be viewed as information, or social, engineers. This view alsoprovides us with a hint as to why the issue of ethics figures prominently in his theoretical expositions. Itcould be construed as analogous to the ethical considerations that arise in the case of genetic engineering.10’The big Other refers to the symbolic order which operates in the register of language-culture (signifiers)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.ll’j’h,j5,of course, implies an alternative ethics. More specifically, it implies an ethics of the real, a topicwhich we will be examining in more detail later.12Freud, Sigmund, Civilization and its Discontents, James Strachey, trans. (New York: W.W. Norton,1961).13Marcuse, Herbert, Eros and Civilization (New York: Vintage, 1962).14Fromm, Erich, The Crisis of Psychoanalysis: Essays on Freud, Marx and Social Psychology (NewYork: Holt, Rinehart, Winston, 1970).15Freud, S, Totem and Taboo: Resemblances between the Psychic Lives ofSavages and Neurotics, A. A.Brill, trans. (New York: Vintage Books, 1946). See also West, Robin, ‘Law, Rights, and Other TotemicIllusions: Legal Liberalism and Freud’s Theory of the Rule of Law’ (1986) 134 University of PennsylvaniaLaw Review 817 where it is argued that Freud’s naturalistic version of the Rule of Law provides a sounderdefence of legal liberalism than those offered by such theorists as Owen Fiss, Lawrence Tribe, and RonaldDworkin.t6Smith, 3. C, The Neurotic Foundations ofSocial Order (New York: New York University Press, 1990).17Schoenfeld, C. G., ‘The Origins of Law: A Psychoanalytic Interpretation’ (1992) 20(3) Journal ofPsychiatry and Law 351.18JJ&j at 371.19As has been pointed out by 3.-A. Miller, the replacement does not come about without a certainremainder: the real (superegoic) father who incites us to jouissance. And, of course, the tripartiteclassification of the father has a homologous affinity with the triad need-demand-desire.20Kaplan, Leonard V., and Robert D. Miller, ‘On psychiatry and its Disavowal of Mind: Legal andCultural Implications’ (1991)19(3/4) Journal of Psychiatry and Law 237.21Lawrence III, Charles R., ‘The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism’(1987) 39 Stanford Law Review 317 at 324.22Sk, Barbara, ‘Psychoanalysis: In Dreams Begin Responsibilities’ (1991) 38 UCLA Law Review 1483.IbkL at 1503.24pjid. at 1519, quoting Schafran, ‘Gender and Justice: Florida and the Nation’ (1990)42 Fl. L. Rev. 181at 186 and n.18.25Sheleff, Leon Shaskolsky, ‘The Illusions of Law -- Psychoanalysis and Jurisprudence in HistoricalPerspective’ (1986) 9(2) International Journal of Law and Psychiatry 143 at 144.26Frank, Jerome, Law and the Modern Mind (Garden City: Doubleday, 1963 [orig. 1930]). Also byJerome Frank: Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton UniversityPress, 1949).27Sheleff, supra at 148.28Sheleff, supra at 148.29Sheleff, supra at 149, quoting Frank, Jerome, Law and the Modern Mind, supra at 116.30Robinson, Edward, Law and the Lawyers (New York: MacMillan, 1935).31Sheleff, supra at 154, quoting Robinson, Edward, Law and the Lawyers (New York: MacMillan, 1935)at 72.32Ehrenzweig, Albert, Psychoanalytic Jurisprudence: On Ethics, Aesthetics and ‘Law’ -- On Crime, Tort,and Procedure (Dobbs Ferry: Oceana, 1972).33Schoenfeld, C. G., Psychoanalysis and the Law (Springfield, Ill.: Charles C. Thomas, 1973).Chapter One: Setting the Stage for a Lacanian Displacement 7834Sheleff, supra at 157.35Caudill, David S., ‘Lacan’s Law and Ours’ (1993) 16(4) Legal Studies Forum 421; Caudill, David S.,‘Lacan and Legal L.anguage: Meanings in the Gaps, Gaps in the Meanings’ (1992) 3(2) Law and Critique169; Caudill, David S., ‘Freud and Critical Legal Studies: Contours of a Radical Socio-LegalPsychoanalysis’ (1991)66(3) Indiana Law Journal 651.36As Lacan says (and remembering that the big Other is the locus of the signifier):Any statement of authority has no other guarantee than its very enunciation, and it ispointless for it to seek it in another signifier, which could not appear outside the locus inany 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 whoclaims 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 itsauthority. (E, 310-311)37Caudill, ‘Lacan and Legal Language’, supra at 210.38See, for example, his statement that “[wibile one may accuse Lacan of reducing everything to language,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 withstructure. He thus ignores the critical dimension of the real order’s jouissance which both escapes andsustains that structure.39Salecl, Renata, ‘Crime as a Mode of Subjectivization: Lacan and the Law’ (1993) 4(1) Law and Critique3.40Butler, Judith, Bodies That Matter (New York: Routledge, 1993). And Cornell, Drucilla,Transformations (New York: Routledge, 1993).41Perhaps we could view a small group of scholars as an exception to this sweeping statement. SlavojZizek, Ernesto Laclau, Chantal Mouffe, Renata Saleci, and Joan Copjec all address issues of politicalphilosophy, including rights, the democratic subject, and social laws. So, inasmuch as these issues also cutacross the legal discourse, we should consider them as having preempted, even laid the groundwork for, amore direct Lacanian problematization of the law.42Known invariably as the master signifier, point de capiton, or pure signifier. It denotes the sigrnfierswhich structure our symbolic universes (the big Other, the symbolic order).43This signifier denotes the chains of knowledge that are structured by the master signifiers.44The split subject; the subject as lack.45The Lacanian objet petit a, the surpiusjouissance, or plus-de-jouir (named after Marx’s surplus value).Cf. Bracher, Mark, Lacan, Discourse, and Social Change (Ithaca: Cornell University Press, 1993).47Abrief description of Lacan’s discourse types appears in chapter two.48See, for example, Smith, 3. C., D. Gelbart, and D. Graham, ‘Building Expert Systems In Case-basedReasoning’ (1992) 4(2) Expert Systems with Applications; and Gelbart, Daphne, and J. C. Smith, ‘TowardsCombining Automated Text Retrieval and Case-Based Expert Legal Advice’ (1992) 1(2) Law TechnologyJournal 19. As we have already mentioned, court judgments fall within the discourse of the university (InLacanian mathemes, S2IS 1); however, they will sometimes show characteristics of the master discourse inwhich master signifiers appear on the ‘surface’ of the text (S1I$).49This is probably because of the intimation of ‘superiority’ and its correlative ‘derogation’ in the prefix‘false’. Catherine MacKiunon and Andrea Dworkin have been the most viciously criticized for their use ofthe term in the context of feminist legal discourse and comparative cultural studies. However, the morebenevolent (naive?) user of the term generally intends the word more in the sense of retrospectiveenlightenment or even moral relativism.50This category would also include those individuals who may not feel happy about their actions, but beingsubject to a ‘higher’ principle, must nevertheless continue to act the way they do.51Tbis is meant on a level akin to the present teachings in theoretical physics among whose most startlingcontributions since the turn of the century is the Heisenberg Uncertainty Principle. Thus, for example, thevelocity and position of an electron cannot simultaneously be known in principle. In other words, on thestrictest level of analysis, certainty is unattainable. We are left with only possibilities and probabilities --anirreducible undecidability.Chapter One: Setting the Stage for a Lacanian Displacement 7952”The radical contingency of naming implies an irreducible gap between the [Lacanian] real and modes ofits symbolization: a certain historical constellation can be symbolized in different ways; the real itselfcontains no necessary mode of its symbolization.” (SO, 97)It is because the real itself offers no support for a direct symbolization of it -- becauseevery symbolization is in the last resort contingent -- that the only way the experience ofa given historic reality can achieve its unity is through the agency of a signifier, throughreference to a ‘pure’ signifier. It is not the real object which guarantees as the point ofreference the unity and identity of a certain ideological experience — on the contrary, it isthe reference to a ‘pure’ signifier which gives unity and identity to our experience ofhistorical reality itself. Historical reality is of course always symbolized; the way weexperience it is always mediated through different modes of symbolization: all Lacanadds 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, issupported by some ‘pure’, meaningless ‘signifier without the signified’. (SO, 97)53As Zizek notes, this is identical to the Derndean process by which elements are constantly marked andre-marked, whether in the realm of drawing (figure and ground), music (motif and accompaniment), film(objective and subjective), etc. (EP, 76-78)54We can understand, therefore, why Lacan modified Saussure’s exemplification of the relationshipbetween signifier and signified from [‘tree’]/[image of tree] to [‘ladies’-’gents’]![image of two identical andthus indistinguishable (on the level of the imaginary-phenomenal) doors].55ie., ‘something in it (ie., the object being referred to — the objet peril a) more that itself (the object as a(temporary) bundle of positive properties)’56Altematively referred to as rigid designator, point de capiton, master signifier, pure signifier. The pointde capiron or pure signifier denotes a signifier without a signified: “the point de capiton is... the wordwhich, as a word, on the level of the signifier itself, unifies [quilts] a given field, constitutes its identity: itis, so to speak, the word to which ‘things’ themselves refer to recognize themselves in their unity.” (SO, 95-96) 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 veryquestion of meaning.58A long answer involves a detour through Lacan’s graph of desire-- a detour which we will forgo fornow. However, for purposes of completion, we include Zizek’s rendition of it in the Appendix.590ne might wonder what would happen if, for some reason, the big Other suddenly revoked its guarantee.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 sufficientto recollect the scene in James Cameron’s Aliens, in which the protagonists are marching down a corridorin a former colony looking for survivors when, suddenly, the surrounding walls begin to undulate. It thusbetrays its status as the inside of a living alien. The horror corresponds to the separation between thesymbolic identity as ‘corridor’ and the object to which it refers. Similarly, the final scene in Chaplin’s CityLights stages a separation when the flower girl’s identification of the generous person as ‘prince charming’collapses into a disgusting ‘tramp’. (ES, 1-9)60Using the example of ‘democracy’ as a master signifier, Zizek elaborates at length:[Tihe essentialist illusion consists in the belief that it is possible to determine a definitecluster of features, of positive properties, however minimal, which defines the permanentessence of ‘democracy’ and similar terms — every phenomenon which pretends to beclassified as ‘democratic’ should fulfill the condition of possessing this cluster offeatures. In contrast to this ‘essentialist illusion’, Laclau’s anti-essentialism compels usto conclude that it is impossible to define any such essence, any cluster of positiveproperties which would remain the same in ‘all possible worlds’ — in all counterfactualsituations.In the last resort, the only way to define ‘democracy’ is to say that it contains allpolitical movements and organizations which legitimize, designate themselves as‘democratic’; the only way to define ‘Marxism’ is to say that this term designates allChapter One: Setting the Stage for a Lacanian Displacement 80movements and theories which legitimize themselves through reference to Marx, and soon. In other words, the only possible definition of an object in its identity is that this isthe object which is always designated by the same signifier -- tied to the same signifier. Itis 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 notionof democracy and the real-socialist theory, according to which the basic feature of ‘realdemocracy’ is the leading role of the Party representing the true interests of the peopleand 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 oftrue democracy -- in the final analysis, ‘democracy’ is defined not by the positive contentof this notion (its signified) but only by its positional-relational identity-- by itsopposition, its differential relation to ‘non-democratic’ -- whereas the concrete contentcan vary in the extreme: to mutual exclusion (for real socialist Marxists, the term‘democratic’ designates the very phenomenon which, for a traditional liberalist, are theembodiment of anti-democratic totalitarianism). (SO, 98-99)6lfli,j5,of course, is analogous to the psychoanalytic situation in which the analyst serves as guarantor ofmeaning, ie., as ‘subject supposed to know’.62Lacan’s concepts of separation and symbolic order can also be used to explain the phenomenon of ‘losingface’ (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 symbolicorder (repository of S is), the more necessary it is to attempt to conduct oneself in the company of others ina manner which will ‘save face’. The rigidity of the Japanese big Other, for example, explains why ‘savingface’ (ie., the staving off of the social vertigo experienced when one discovers that someone is no longerthe person whom you thought they were) is so important in the social discourse. (ES, 63, note 17)63Here we may think of the examples of a person of colour who makes a decision to go to a particular lawschool based on its race-discrimination policies; or of a person who attempts to enumerate the failures ofanother’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 inDostoyevsky’s The Brothers Karamazov. Did he not repeatedly point out how an argument can cut bothways?In the context of pornography we could refer to a case in which the argument being advancedemphasized its harm so as to distinguish it from its competing definition of speech, the latter of which is, ofcourse, 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 courtheld that pornography’s importance as speech can be measured by its effectiveness in doing the harm that itdoes”: Catherine MacKinnon, ‘Pornography as Defamation and Discrimination’ (1991) 71 BostonUniversity Law Review 793 at 812.64See, for example, Gabel, Peter, ‘The Phenomenology of Rights-Consciousness and the Pact of theWithdrawn Selves’ (1984)62 Texas Law Review 1563.65The paradigm, of course, is Kafka’s Joseph K. in The Trial. In that case, the victim of the bureaucracy-gone-awry also persists in searching for some meaning to his arrest; or else he persists in believing thatrational argument can convince the State of the absurdity of the situation. The acute sensitivity to theirreducible contingency in the generation of meaning and its accompanying feeling of arbitrariness is, ofcourse, very relevant to the plight of the Jewish people during the second world war and depicted sopoignantly by Steven Spielberg in &hindler’r List.Rorty approaches this idea when be states that solidarity should be conceived as “the ability to see moreand more traditional differences (of tribe, religion, race, custom, and the like) as unimportant whencompared 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 problematicby 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 81however, does not come off without a certain pathological remainder: Saleci, Renata, ‘Woman asSymptom of Rights’ (1993) 12(2) Topoi 89 at 93-94.67S, for example, Hutchinson, Allan, Dwelling on the Threshold (Toronto: Sweet & Maxwell, 1988).68Jt is in this sense that the Alien trilogy can be read as an essay on the Lacanian subject. In the RidleyScott (Alien) and James Cameron (Aliens) versions we see how the identity of lieutenant Ripley (SigounieyWeaver), or of the community, is consolidated by its opposition to an external alien. In David Fincher’sAlien3,however, we see in the final scene how this foreign substance is actually within the subject herself.The parallel to traditional mythic narratives describing the hero’s trials and tribulations in his bid to slay themonster 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 theexternal impediment will bring things to a euphoric state of bliss. (See also So, 78-79, and TN, 275, note32.)69Md this is why it is a bit worrisome when, in the context of the environmental movement, we hearpeople talk of a return to a fully-balanced, dynamically interconnective, wholesome, relational state of theearth devoid of conflict (as if this were possible). If one is not careful, this can quickly turn into a recipefor totalitarianism.70Jn the Nazi-Jew scenario, this would, in effect, entail recognizing the Jew as ourselves.71Cf. the hysterical Mary in Rossetti’s painting ‘Ecce Ancilla Domini’, or the hystericization of Christ inScorsese’s ‘The Last Temptation of Christ’. (SO, 114) Both subjects ask the same question: ‘Why me?’72Cf. Shakespeare’s Hamlet in which the imposed mandate (by the ghost of Hamlet’s father) to avenge hisfather’s death is subverted by the supplementary instruction not to harm his mother. It is she, therefore,who triggers, for Hamlet, the Che Vuoi9 (SO, 120)An important caveat:The usual defmition of fantasy (‘an imagined scenario representing the realization ofdesire’) is... somewhat misleading, or at least ambiguous: in the fantasy-scene the desireis not fulfilled, ‘satisfied’, but constituted (given its objects, and so on) -- throughfantasy,we learn ‘how to desire’. In this intermediate position lies the paradox of fantasy: it isthe frame co-ordinatiug our desire, but at the same time a defence against ‘Che vuoi?’, ascreen concealing the gap, the abyss of the desire of the Other. Sharpening the paradox toits utmost — to tautology — we could say that desire itsefis a defence against desire: thedesire 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 byLacan (‘not to give wy on one’s desire’) coincides with the closing moment of thepsychoanalytic process, the ‘going through the fantasy’: the desire with regard to whichwe must not ‘give way’ is not the desire supported by fantasy but the desire of the Otherbeyond fantasy. ‘Not to give way on desire’ implies a radical renunciation of all therichness of desires based upon fantasy-scenarios. In the psychoanalytic process, thisdesire of the Other assumes the form of the analysis’s desire: the analysand tries at firstto evade its abyss by means of transference -- that is, by means of offering himself as theobject of the analyst’s love; the ‘dissolution of transference’ takes place when theanalysand 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; howdoes it begin to contain some X, some unknown quality, something which is ‘in it morethan it’ and makes it worthy of our desire? By entering the framework of fantasy, bybeing included in a fantasy-scene which gives consistency to the subject’s desire. (SO,119)74We could also add that the traversal of fantasy is not a one off thing. It requires the hard work ofrepeated traversals, ie., to show in as many ways possible how our fantasy is a contingent formation. In thissense, we could say that Zizek’s work constitutes an attempt to take philosopher-theoreticians through theirown fantasy of subject construction. Could we not view his work as just so many different ways to traverseour fantasy vis-a-vis the subject?75See Appendix.Chapter One: Setting the Stage for a L.acanian Displacement 8276Zizek illustrates this process by referring to the paradigmatic Jewish case:To exemplify this necessity of supplementing the analysis of discourse with the logic ofenjoyment we have only to look again at the special case of ideology, which is perhapsthe purest incarnation of ideology as such: anti-semitism. To put it bluntly: ‘Societydoesn’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 isnot split by an antagonistic division [ie., the lack or inconsistency of the big Other], asociety 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 ofantagonism [the real jouissance that resists symbolizationi: fantasy is precisely the waythe antagonistic fissure [the lack of the big Other] is masked... The thesis of L.aclau andMouffe that ‘Society doesn’t exist’, that the Social is always an inconsistent fieldstructured 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 ofideology’, supplementing the one given above: to detect, in a given ideological edifice,the element whicb represents within it its own impossibility. Society is not preventedfrom achieving its full identity because of Jews: it is prevented by its own antagonisticnature, by its own immanent blockage, and it ‘projects’ this internal negativity into thefigure of the ‘Jew’. In other words, what is excluded from the Symbolic (from the frameof 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 likewisecorrelative to identification with the symptom. Jews are clearly a social symptom: thepoint at which the immanent social antagonism assumes a positive form, erupts on to thesocial surface, the point at which it becomes obvious that society ‘doesn’t work’, that thesocial 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 andcorruption of the social edifice-- it appears as an outward positive cause whoseelimination would enable us to restore order, stability and identity. But in ‘going throughthe fantasy’ we must in the same move identify with the symptom. we must recognize inthe properties attributed to ‘Jew’ the necessary product of our very social system; wemust recognize in the ‘excess’ attributed to ‘Jews’ the truth about ourselves. (SO, 125-128)77Marx, Karl, Capital, Ben Fowkes, trans. (New York: Penguin, 1976).78Sloterdijk, Peter, Critique ofCynical Reason (Minneapolis: University of Minnesota, 1987).79”What we call ‘social reality’ is in the last resort an ethical construction; it is supported by a certain ‘asif’ (we act as if we believe in the almightiness of bureaucracy, as if the President incarnates the Will of thePeople, 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 theeffective functioning of the social field) is lost, the very texture of the social field disintegrates.” (SO, 36)80Ifoft, Claude, Democracy and Political Theory (Minneapolis: U. of Minnesota Press, 1988).8tCopjec, Joan, ‘rn/f, or Not Reconciled’ in Parveen Adams and Elizabeth Cowie, eds., The Woman inQuestion (Cambridge, Mass.: MIT Press, 1990) at 12.82Another, perhaps more persuasive, argument appeals to empirical studies which clearly show a systemicdiscrepancy between population breakdown (along lines of class, race, gender, etc.) and, for example,employment type breakdown.83Ie., the temptation of filling in the lack with essentializing pathological content.841)enith Jacques, ‘Force of Law: The “Mystical Foundations of Authority” (1990) 11 Cardozo LawReview 919 at 943. We could relate Derrida’s suspension of the law to the court-room process. Could notthe procedure of distinguishing a case on its facts be conceived as a supremely ethical gesture whose aim isto garner respect for the specificity of the case (analogous to the particularity of fantasy)? Is not itsChapter One: Setting the Stage for a Lacanian Displacement 83function to briefly suspend the law so that it can be reinvented anew (ie., rearticulated to another principleof interpretation)?85Miller, Jacques-Alain, ‘The Formal Envelope of the Symptom’ (1991) 4 Lacanian Ink 13 at 17.86H, H. L A., The Concept ofLaw (Oxford: OUP, 1961) at 208-23 1.87Though the effects of phraseology are more dramatic in the context of legal battles, such effects shouldnot go unnoticed in our daily lives. This can perhaps be brought to the fore in the well-recognizedobservation (in areas of empirical research) that the manner in which signifiers are strung together in surveyquestions can have profound effects on the kinds of answers elicited. Thus, though the question posed tomale employees of whether they would desire a ‘parental leave’ option is met with resistance, the questionphrased in terms of ‘a few days off to spend with the children’ would produce a more positive response.88Lacan plays on the French word for word (mot) when he refers to the ‘moterialisme’ of the symbolicorder: Lacan, Jacques, ‘Geneva Lecture on the Symptom’ (1989) 1 Analysis 7.89Here it might be helpful to think of particular instances of physical/economic power relations (between,for example, man and woman; porn industry and women; logging industry and environmentalists).See Copjec, ‘rn/f, or Not Reconciled’, supra at 15-16.9tSalecl, ‘Woman as Symptom or Rights’, supra at 92.92Salecl, ‘Woman as Symptom or Rights’, supra at 96.93Using the signifier universe model to apprehend the legal decision-making process shows us in what waythe anecdotal observation that ‘a legal outcome depends on what a judge had for breakfast’ has a grain oftruth. It is also instructive to relate it to the popular renditions of chaos theory. Is the reference to breakfastnot meant to convey the subtle mechanics of meaning? Is it not meant to show us how a purely contingentand trivial occurrence can result in the emergence of a new master signifier which, through a kind ofdomino effect, can translate into a significantly transformed symbolic order and corresponding universe ofmeaning? Can we not see, here, the butterfly effect, and how, in this case, personal ideologies canpotentially affect judicial outcomes?So, if psychoanalytic social theory is concerned with empirical studies which map out symbolicuniverses, how exactly do empirical statistical studies fit in this picture? Of what use are studies thattabulate trends in income differentials generally and comparatively? Of what use are statistics showingnumbers of single mothers on welfare vis-a-vis single fathers on welfare? Apart from the usual interpretivecaveat when it comes to any kind of statistical study, the poststructural approach treats each of thesefindings as separate floating signifiers which have the potential to be equivalentially linked about specificmaster 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 hegemonicstruggle. For example, statistics showing that the average Asian high-school student consistently scoreshigher than the average North American high-school student may be taken to justify the natural superiorityof Asians over North Americans, or it can be taken to justify a reexamination of teaching methods, and soon. Also witness the debate among environmentalists, loggers, and logging companies: statistics onhectares of lost forests are linked to the images of open wounds and of an ailing earth, while the statisticsshowing numbers of lost jobs are linked to struggling family units whose disintegration threatens our fragilesocial fabric. In the equally charged abortion debate, on the one hand, numbers of abortions are tied tobiblical scriptures, to the right to life, and to foetal images in their advanced stage of development; while onthe 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 variouslogics is limited only by the weaver’s imagination. When confronted with an especially twisted andoffensive series of equivalences, it does no good to point out that the twisted portrayal of facts does notcorrespond to the ‘hard’ facts that the statistics were meant to convey. Such a response will not convertanyone 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, ofcourse, is the relative accessibility to information media through which such equivalential logics can betransmitted. What accounts for perceived informational imbalances: unconscious ‘structural constraints’,conscious ‘vested interests’, etc? This will be taken up in subsequent chapters.)94Butler, Judith, Bodies That Matter, supra at 13.95ibid. at 15.96A11 the while remembering that such factors are abbreviations of particular signifier constellations (of thejudge, of the client, etc.).Chapter One: Setting the Stage for a L.acanian Displacement 8497To what extent such an ethical shift will be perceived as a shift with noticeably differing results is adifferent issue. The cynic will doubtless point out that this new tactical form cannot obviate the possibilityof abuse, namely, to serve as a convenient cover or conduit of implicit values. Such a charge, of course, isvalid. The problem, however, is that it is always valid -- even to the point of subverting its ownconstructive intention. The psychoanalytic stake is the fostering of a less pathological state, both on thepart of the progressive strategist (ie., an attempt to avoid the totalitarian temptation of eliminating all thatcould possibly be conceived as a threat to the state), and on the part of the respondent (ie., to achieve acertain distance from his or her fantasy).98Much of this chapter dealt with theory. However, it is hoped that the practical, especially strategic,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 thatthey should be seen more as a political process. In other words, they should be seen as processes in whichan antagonism is transformed into an agonism. Also, our analysis in terms of signifiers (our only access tojouissance) means we can more fully appreciate difference between a simple, low profile, family case, acriminal 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.85CHAPTER TWO: Doing TheoryIn this theoretical chapter, we intend to appeal to the previous chapter’s outline ofSlavoj Zizek’s psychoanalytic onto-epistemology and to attempt to highlight the way inwhich 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 thenattempt an ‘application’ of this logic to specific contexts in order to show its explanatorypotential. Finally, we will engage with the broader debate over the limits of modernismand the significance of postmodernism.The Logic of the Signifier: Toward a Science of Discourse AnalysisThe logic of the signifier describes the laws by which any system of significationworks. 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 thenature of discourse directly, but rather by looking at it askance. We hope to show that anunderstanding of such laws can best be achieved as a by-product rather than a mainproduct, 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 moreChapter Two: Doing Theory 86thorough comprehension of the mechanics of signification will emerge by attempting tothink the limits of discourse.What can we say about such limits? Well, we could begin by pointing out thatthese limits, indeed any limits, in order to qualify as legitimate must announce theirpresence 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 wecould so apprehend them with the symbolic resources at our disposal, they wouldimmediately, and by definition, cease to be limits. Let us clarify this last remark byrecalling the Saussurian commonplace that all identity is differential in nature; that eachsignified comprises the bundle of a signifier’s differences from all other signifiers. Oursystem, 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 andcannot, therefore, signify its limits in a direct way. In other words, the limits of discoursecannot have a signifier of its own.So, how to resolve this impasse? Simply by recognizing that every signifier, andthus every identity, is constitutively split. On the one hand, it must represent its ownparticular content (the bundle of differences from all other signiflers in the system); andon the other hand, it must have the capacity to represent the limits of the system (and thusthe constitution of the system along with the radical exclusion this entails). In otherwords, relational identity is split between its other-differential (System, S2) and Other-antagonistic (Anti-System, $) guises. We can also think this split using theheterogeneous logics of difference and identity. On the one hand we have the logic ofdifference which, as we pointed out, is responsible for the meaning of the signifier. Onthe other hand, we have the logic of equivalence by which signifiers are united as, andthus simplified into, a system. We see, therefore, that for a signifier to signify a totalitythe logic of simplification (identity) must dominate over the logic of complexificationChapter Two: Doing Theory 87(difference). And what can this mean but the gradual evacuation of the signifier’sdifferential identity to a point of pure nonsense; to a vessel devoid of differentialmeaning? We now have another way to conceive of Iacan’s empty (master) signifier andits accompanying mechanics of capitonnage. In its empty mode of existence, this‘chosen’ signifier serves as a surface of inscription upon which each of the system’ssignifiers inscribe themselves. We have, in other words, a transition from the Lacanianformula ‘every signifier represents the subject for another signifier’ (ie., the non-all logicof the feminine) to ‘the master signifier represents the subject for all other signiflers (ofthe system)’ (ie., the male logic of the ‘all’).So, the emergence of a master signifier (Si) constitutes, and represents, a systemof differential signifiers (S2). But, as we have also seen, establishing a system implies aradical exclusion of a real, unconscious Other ($). This Other, therefore, is implicated ineach of the system’s signifiers and is thus also represented in Si, but in inverted form. Inother words, Si is indelibly marked by $. We can appreciate this better by recalling thatSi is the empty signifier, the signifier ofthe lack; whereas $ is the inverse of this: thelack ofthe signifier. In short, they constitute two sides of the same object: the objetpetita. And it may help us to refer to the paradoxical geometry of the mobius strip toconceive of this relationship. The local property of such an object points to a certaindissonance or incompatibility between the two sides; whereas the global property pointsto a (surface) commonality which betrays a radical relation of interpenetration and mutualreliance.And do we not here have just another way of describing the contingent nature ofLaclau and Mouffe’s classic notion of antagonism; that every identity is always groundedin a ‘constitutive 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 twoaspects. First, that, though the specific content of each of those positions isChapter Two: Doing Theory 88circumscribed by the availability of potential fillers (floating signifiers), they are notdetermined by them. And second, that, though each is not determined by the other, eachdepends on the other for the constitution of its identity. And it is this second aspectwhich addresses the false accusation, usually lodged by traditional marxists and rightistconservatives, that the contingency anti-essentialists are so ready to valorizeautomatically degenerates into radical nihilism. The limiting horizon of availablepossibilities (floating sIgniflers) always prevents a nihilistic infinite play.But if we cannot rationally deduce the particular content (objet petit a) to embodywhat Laclau calls the ‘form of fullness’ (Si) from the horizon of possibilities we areconfronted with, what process do we invoke to create a link? In other words, if weacknowledge the irreducible incommensurability between filler and filling function, whatestablishes such a relationship (which, incidentally, can only be temporary andprecarious)? The answer, of course, is hegemony: the political-interpretive struggle tohegemonize 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 theseparation of empty form from particular content that betrays a contingent relation andthus 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 thecontingent as necessary; and the revelation of the contingent in the heart of necessityexpands the horizon of possibilities. And can we not see, now, why progressive scholarsmust advocate as an internal moment of their political program such a traversal offantasy? And can we not also see how this insight has been made possible by fullyassuming the split nature of the signifier, a theoretical model which we stumbled upon bytrying to delineate the contours of discursive limits; and a model which will help us betterunderstand the nature of the subject as structural failure?Chapter Two: Doing Theory 89Let us now specify a bit more precisely the significance and operation of themisperception of the contingent as necessary. In a first approach, we could say that itbelongs to the Lacanian imaginary order, an order in which closure and full identity isachievable; where the filler is rigidly linked to, and misperceived as, the form of fullnessitself. 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 thisfusion that is responsible for the overwhelming feeling of fullness and positivity, afeeling often associated with ego caressing. And we can see now how a democraticethics of the real calls for a separation of Si from its object-content (Real=S i-a) so as topermit a hegemonic struggle among alternative competing fillers. As we have notedelsewhere, 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 ofthe real’) dislocates the imaginary filler (objet a) from its hegemonic status as form offullness (Si) to reveal the real lack ($) that it attempts to conceal -- a lack which isnothing but the subject itself. Thus, we can say that dislocation marks the emergence ofthe subject. It locates the point at which the structure fails to achieve full identity withitself. We thus have a new relationship between subject and structure: the subject is thecontingent failuie of structure.In opposition to the belief that a ‘valorization’ of contingency implies a nihilisticinterrogation and abandonment of structure, contingency actually presupposes structure.In other words, the critique of anti-essentialism which suggests that contingency implieslack of structure must be radicalized and transformed. Contingency does imply lack ofstructure, but not in the usual nihilistic sense of the phrase. Instead it implies the lack ofthe structure: a structural antagonism. The structure, though it necessarily circumscribes,cannot ever be determinative, not because of empirical limits, but because the logic of theChapter Two: Doing Theory 90signifier dictates a radical exclusion and thus a radical unknown whose effects cannot bepredicted. We see, therefore, why such unknowns can only be dealt with one by one asthey manifest themselves as instances of the return of the real; in other words, as eachsuccessive constitutive outside begins to impose itself upon the system whose veryexistence and identity relies on that exclusion.Let us elaborate. We saw how the logic of the signifier is born out of its splitnature. A system of knowledge (S2) is formed through the emergence of an emptysignifier (Si) which is occupied and represented by a filler (a) and tied, as if by anumbilical cord, to its excluded Other ($).‘ In developing this formulation, therefore, wecould say that the internal split of the signifier is projected outward onto the politicallandscape as a social antagonism. In short, Laclau and Mouffe’s social antagonisms aremade possible by the structure of the signifier.Now, every identity, every signifier, is supported by such an exclusion. In thissense, each is always already antagonistic, even if its Other has yet to show up. This alsoexplains why, as a matter of strategy, a simple affirmation of difference (between anidentity and its Other, as in the American as Good and the Russian as Evil) furtherentrenches their respective identities. Only with the use of a common language such asthe rights discourse, and thus the possibility of an equivalential logic, can the Other beginto impose itself by subverting the identity that excluded it.But how exactly does its antagonistic Other emerge? We have already suggestedan answer: As the ‘return of the real’. In other words, what has been excluded from thesymbolic order (and thus relegated to the real) in order to constitute itself, eventuallybegins to reimpose itself. And since the real can make itself felt in the system only interms of the signifiers available in that system, its presence will be marked by itsidiosyncratic symbolic-structural inconsistencies and defects. When, for example,women demand the right to vote or to work, they point to the legal order’sinconsistencies. On the one hand, it advocates equality before the law for all persons, andChapter Two: Doing Theory 91on the other, it attempts to exclude women from the category ‘persons’. The firstpolitical articulation of such a demand marks the emergence into the social of anantagonism. We can begin to see, therefore, the significance of the rights discourse forthe expression-externalization of relations of domination. This is because rights are, ifnot theoretically understood as such, certainly circulated in a fashion that suggests anacknowledgment of their split character. They represent not only the specific demandbeing articulated; they also represent the form of fullness which totalizes similar demandsinto a coherent opposition (anti-system) that pits itself against the system. The rightsdiscourse provides a language which permits an otherwise excluded Other to begin to beheard in a fashion which, in other circumstances, might have led to a more ready resort toviolence.We could say that the rights discourse takes us a long way along the path to anethical politics of the real. The separation between the form of fullness and its particularcontent opens up the space for change. And this separation, of course, is only madepossible by the radical ambiguity implied in the split of the signifier, namely, that theparticular content stands not only for its own differential meaning, but can also stand fora totalized system of contents which have been linked through articulation. As to whichof a number of floating signifier emerges as master, this can only be decided by acontingently hegemonic struggle.We see, therefore, how the rights discourse attempts to keep alive the split of thesignifier in order to accommodate one by one the demands arising from the returns of thereal. The alternative to this feminine ‘non-all’ approach is to enumerate all the possibledemands in advance. This would constitute the totalitarian temptation and wouldsubscribe to the masculine logic of the ‘all’. For the ‘all’ logic ignores the laws of thesignifier which imply a radical (and thus unknowable) exclusion for the purposes of theconstitution of the symbolic order. (EP, 12 1-126) The totalitarian wallows in theimaginary order because he mistakes the filler as the form of fullness. He does notChapter Two: Doing Theory 92recognize that the property that is responsible for such things as overdetermination,radical ambiguity, subversion, politics, humour, and guilt is also responsible for anecessary exclusion-antagonism. He is forced, in other words, to conceal the irreduciblesplit of the Social by repressing it in a symptom. Everything that prevents the Socialfrom constituting itself, no matter how absurd or inconsistent, gets funneled into thesymptom (eg., the Jewish conspiracy) and so deflects attention away from the constitutivenature of antagonism. Thus, the totalitarian temptation consists in creating long lists ofsymptomal properties that must be eliminated. Why? To keep alive the fantasy that theIdeal Society is possible; to keep at bay the real of subjecthood by covering it up with apathological 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 thesignifier, and we have since invoked it as a principle of intelligibility with regard to suchthings as identity construction, social antagonisms, the rights discourse, radicaldemocracy, totalitarianism, etc. Are we not justified in claiming that the law of thesignifier is too good to be true? And while we are at it, why not interrogate the status ofthis ‘law’? In what sense can we say that such a logic makes overtures toward what wecould call a science? And, perhaps more importantly, in what sense does it pretend tostand aloof from the social practices that it purports to describe? Indeed, Judith Butlergoes so far as to suggest that Laclau’s own invocation of these laws of logic suffers froma historico-contextual amnesia. She says, for example, that “Laclau offers us adescription of the logical features by which any social practice proceeds, therebypostulating a logic to which social practices are subject but which is itself subject to nosocial practice.”2 Or, elsewhere, she asks “[w]hat accounts for the apparent separabilityof the logical from the social, such that one might appeal to the logic of the social, as ifthat logic were itself not the distilled and sedimented effect of social practices?”3Chapter Two: Doing Theory 93Of course, we sympathize with Butler’s position that no principle of intelligibilitycan exist independently of the discursive horizon that engenders its coordinate systemand thus orients it. However, to suggest that Laclau should somehow be exempting theoperation of this logic from the influence of social practice not only goes against the mainthrust of his whole corpus, but also verges on critical negligence, even intellectualdishonesty. This is all the more surprising when one takes into account her normally veryclose and sophisticated readings of theoretical texts. But here, we have a suggestion sofar 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 bebrash enough to suggest that the laws of the signifier occupy a position akin to Newton’slaws of motion. Whereas the latter apply to the discursively constructed physical world,the former apply to the discursively constructed discursive world. Now, does thepostulation of such laws imply their radical exemption from the world that gave birth tothem? If it is possible to misperceive them as such, Thomas Kuhn’s work” should, bynow, have laid any such illusions to rest. Not only are scientific laws born out of thephenomenal 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 whichcan only return as the real. An ethics of science, therefore, would suggest that we besensitive to observations which are ‘abnormal’, which don’t quite ‘fit’, with the reigningprinciple of intelligibility. In other words, the ‘return of the real’ provides a source ofperturbatory feedback, forcing a constant re-evaluation of scientific laws and remindingus of their inextricable link to the real order -- a real order which can only manifest itselffrom within our symbolic universe through inconsistencies, paradoxes, anomalies. And,as we have said, these comments apply with equal force to the laws of motion whichgovern the interaction of physical bodies and to the laws of the signifier which govern theinterrelation of signifiers, antagonisms, symptoms, and the like. This is why Laclau isexplicit on this point, noting that “it is only through a multitude of concrete studies thatChapter Two: Doing Theory 94we will be able to move towards an increasingly sophisticated theory of hegemony andsocial antagonisms.” (Emphasis added) (TDS, 235)We could say, therefore, that the law of the signifier takes its own demise intoaccount in advance. Its reign implies the repression of alternative laws which will returnlater as the real, either to modify or to replace. We see this quite clearly in the domain ofphysical science. First, Galileo invented the telescope. Then, Tycho Brachae amassed atowering collection of planetary observations. This was then followed by a grindingdistillation into a few simple laws by Johannes Kepler, which were promptly perfected byNewton’s inverse square laws. But were they really immutably perfect? Of course not.Technological development opened up the door to measurements of ever increasingsensitivity -- 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 thedislodgment and replacement of the hegemonic status of Newton’s laws by Einstein’sgeneral theory of relativity. We see, therefore, how we can argue that the laws of thesignifier 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 tothe logic of the signifier. For it is becoming increasingly apparent that the rapidtechnological development and social change that accompanies our late capitalistsocieties helps us more fully grasp this logic. We live in a world in whichcommodification is the name of the game and in which there is a simultaneouslydiminishing commodity life expectancy. Under these circumstances, we necessarilybecome aware of the contingency of the definitional process, even if this awarenessoperates on an subconscious level. However, in a world that subscribes to predictability,tradition, order, and inter-generational constancy, objects appear to possess anunchanging and definable essence. We can see, here, how the (traditional) marxist versusChapter Two: Doing Theory 95postmarxist debate can be historically located at a critical point of late capitalistdevelopment.The accelerated rate of social change operates to dislodge the appeal toessentialism from its hegemonic status. It reveals essentialist categories such as ‘class’ tobe only special cases of a more general anti-essentialist sensibility, just as Newton’s lawsof gravitation constituted a special case of Einstein’s general theory of relativity. Wecould 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 becausethe old world of tradition subscribed to a descriptivist view in which meaning was fixedand 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 wasmisperceived as the form of fullness (Sl+a). Today’s world, however, repeatedlyconfronts us with the arbitrary, happenstance, and precarious nature of the definitionalprocess. We experience, in other words, a plethora of separations (Si-a) which give riseto a new common non-sense that recognizes (though may not want to admit) the constantoverdetermination, subversion, and unfixity of meaning. We have, in other words, theemergence of empty signifiers (non-sense), whose existence makes possible the symbolicorder, 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 regressingto a nostalgia for a long-lost certainty. The contingency of meaning is so unbearable thatwe often redouble our efforts to pin down a common sense. And the ambivalencebetween fully assuming the radical historicity of all being and attempting to ignore it byappealing to foundationalism can be seen reflected in the legal discourse, from naturallaw, legal positivism, legal liberalism, and legal marxism, to legal realism, critical legalstudies, 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 aChapter Two: Doing Theory 96radical democratic project. Can we not now appreciate the significance of the work ofsuch authors as Laclau, Mouffe, and Zizek? They have fully recognized the totalitarianregression that our rapidly changing society could easily encourage. The proliferation ofnationalisms in the wake of the Communist break down, and the sprouting of religiousfundamentalisms and racisms in Western capitalistic societies should present us withsufficient sobering evidence.We need to acknowledge and fully assume the life-cycle of the signifier. Andhere we could point out, though it should come as no surprise, how such a life cycle isplayed out in I.acan’s typology of the four discourses. Let us begin with the discourse ofthe university.5 This discourse evokes such notions as objectivity, spatiality, reification,sedimentation; in short, an ordered social. We are presented with a system (S2) that isassumed to be natural and inevitable but which conceals the empty signifiers (Si) thatstructure that system. We find ourselves, in other words, in the imaginary realm ofideological illusion. The paradigm exemplification of this mechanics, of course, occursin the legal discourse. In that instance, we have an attempt to resolve disputes byasserting an unquestionable essence of legal categories and the inevitability of justoutcomes. However, the attempt to impose the system of knowledge upon disputantsinvariably causes the hysterical subject to emerge: there is always a residual resistancethat evidences the ungentrifiable real of the subject. As we noted in chapter one, thisresistance often comes in the form of the question ‘why me?’, ‘why are you telling mewhat Jam?’A quarter of a revolution brings us to the discourse of the analyst.6 Here, the realsubject produced in the discourse of the university surfaces into consciousness. Weexperience a lightning sensation of dissatisfaction with the reigning order. Suddenly thatwhich tried to pass as Order is seen as Disorder, and the particular content whichincarnated that Order is dislodged from its hegemonic position. Such dislocation givesChapter Two: Doing Theory 97rise to an alternative content that seeks to incarnate a new Order in antagonisticopposition to the old (dis)Order. The discourse of the analyst, therefore, is of the order ofthe temporal or political. It is responsible for the creation of new, empty master signifiersinto which new contents can be inserted. It reproduces the Lacanian act whereby thecontent is separated from its form of fullness to open up the space for new alternatives. Itreveals how every identity (signifier) is dislocated insofar as it is traversed by anantagonism (split) and thus prepares the way for the discourse of the hysteric.7Now, we just saw how the frustration experienced in the analytic discourse gaverise to new master signiflers. In the discourse of the hysteric, we have the subject as lackin 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 atthe stage of hegemonic struggle and political argument. And this brings us directly to thediscourse of the master8,for the decision declaring what content should finally incarnatewhich master signifier can only be tautological. It can never be grounded in a rationalfoundation. It can only be the result of a radically contingent and hegemonic interventionwhich attempts to conceal its antagonistic Other. But let us remember: Once thedecision has been made, if the historicity of its being is not kept alive, we find that it soonbecomes an unquestioned part of the social fabric. In other words, we come full circle tothe discourse of the university whose ordered and stable system of differences concealsthe 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 (andsubject) 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 whichstrive to appease the lack (discourse of hysteric). And finally, we have the contingenthegemonization of the form of fullness by a particular content (discourse of the master)Chapter Two: Doing Theory 98whose history, if forgotten, returns us to the covering-over of the split (discourse of theuniversity)-- a split without which such cyclical reifications and dereifications wouldhave been impossible.9Now, lest we begin to think that these theoretical ruminations have no practicalrelevance, let us see how the logic of the signifier can be used to explain severaldiscursive developments in the realm of law. (Of course, we intend to make a morethorough implementation of the laws of the signifier and its subject in the context of therights discourse, but this should serve to quench an immediate curiosity.)Sample ReadingsGay Rights and Gay StrategiesIn the context of the gay movement, we will see how mainstream heterosexualidentity is consolidated through its opposition to a gay and lesbian ‘outside’. Gays andlesbians 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 theone hand, the heterosexual is incomplete inasmuch as it relies on an Other to recognizeitself as heterosexual. On the other, the homosexual is incomplete insofar as the Other isperceived as an obstacle to the realization of his or her full identity. In looking at the lifecycle of this particular antagonism, we hope to show how the logic of the signifier canserve as a powerful explanatory model in accounting for the critical role played by therights discourse in making the gay and lesbian movement one of the strongest minoritylobbies in the US.Chapter Two: Doing Theory 99In the beginning-- a beginning which could, perhaps, be traced to the raid of theNew York gay bar, Stonewall Inn, on June 27, 1969 -- there was antagonism: verbal andphysical harassment of gays, followed by reciprocal and retributive behaviour, followedby a spiraling escalation in intensity and frequency. The retroactive byproduct of such atemporal 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, andone which we would gladly return to. The myth, therefore, is not only retrospective. Itfunctions as an impetus toward an idealfi#ure -- one that will serve to heal the wound ofthe social: the real antagonism. And it does so by offering itself up as a surface ofinscription: a general form of fullness which competing programs (interpretiveprinciples) vie to incarnate.The problem, of course, is that the reigning program (systematic silencing andmarginalization of gays and lesbians through written laws and unwritten customs; theinsistent non-recognition of gays as a minority group) is usually so well installed in itsposition of the solution that the contingent nature of its hegemonic status is hidden. Inother words, the content has become synonymous with the very form of fullness, thuscollapsing and concealing their radical incommensurability. In this instance we find thatby offering the exact counter program matters were exacerbated. Why? Because astrategy which advocates an open and insistent demand for visibility and affirmation ofthe d/ference of identity is merely the inverted image of the dominant strategy. It merelyassists in the entrenchment of each antagonist’s (partial) identity.The worsening antagonistic stalemate that such a strategy gives rise to wasexemplified 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 was10 viewing them as deviant, sick, immoral, and evil. In this context, therefore, anaffirmational strategy involving such slogans as ‘say it loud, gay is proud’, ‘gay is good’,Chapter Two: Doing Theory 100and ‘three-five-seven-nine, lesbians are mighty fine’ merely served to cement mainstreamheterosexual identity through antagonism.So what would a subversive strategy look like? How can one wrest the dominantand 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 bothantagonistic forces and to the particular demands made by the oppressed. It is suggestedthat 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 constitutivelysplit. It designates not only a particular demand (the right to spousal benefits, the right tobecome a member of the clergy), but also a universal demand (the right to a right, theright to be treated equally). Drawing from the same discursive material used by thedominant group to justify exclusion,1’and by creating a series of equivalential linksbetween the particular demands made by the minority group and the already satisfieddemands by the dominant group, a displacement is effected such that the stark lineseparating the ‘friend’ from the ‘enemy’ is blurred and transformed into a more fluidboundary separating ‘friend’ from ‘adversary’.And this is exactly what we see in the development of the gay movement. Gayactivists found they were able to begin conversation by engaging in the rights rhetoric.Significant strides were made possible as the affirmation/scourge impasse was supersededby a reorientation of the discourse toward the issue of discrimination. This wasfacilitated by the growing number of violent anti-gay incidents and the emergence of anew sociological category, ‘gay-bashing’, which was, in turn, quickly subsumed underanother classifier, ‘hate crimes’ -- a class which included crimes against already-recognized minority groups, such as black, Hispanic, and Jewish persons. Through suchdisplacements, mainstream society was thus confronted simultaneously with the visibilityof sexual minorities and their (for once) legitimate recognition. The fact that suchrecognition was accorded through victimage rhetoric and negative rights (rather thanChapter Two: Doing Theory 101affirmation rhetoric and positive rights) should not obscure its manifestly subversivefunction (recognition of gays as a legitimate minority group). And as Andrew Jacobspoints out, this shift in discourse so apparent in popular discourse can also be readilydiscerned in both judicial discourse (for example, Bowers v. Hardwick’2),and politicaldiscourse (for example, the debates surrounding the proposed (but vetoed) 1991California Assembly Bill 101 13).So what conclusions can we draw from this general pattern of discourse evolutionsuch that while public disapproval of homosexuality has remained constant, there hasnevertheless been an increase in ‘formal’ tolerance. Can we not detect the quiet operationof the logic of the signifier? What is the production of the category ‘gay-bashing’ if notevidence of the emergence of an empty signifier which points to social dislocation; whichsuggests that something is out of joint; that something doesn’t quite fit; that something isamiss; that something needs to be set straight? The empty signifier, therefore, operates asa 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 removeinstitutionalized norms which discriminate against gays and lesbians? It provides somebreathing space-- a buffer zone -- to ease an otherwise brittle and highly volatileantagonistic deadlock.And what is this if not evidence of the subject as vanishing mediator socharacteristic of Lacan’s discourse of the analyst? For a brief moment we witness theemergence of a structural lack; a point at which the social structure is not at peace withitself. And no sooner do we become aware of it than it is quickly filled in by ahegemonic ‘solution’, thus covering up the traces of the contingent nature of itsinstitution.Chapter Two: Doing Theory 102Undecidability and Identification: Politicizing the Legal Categories ofHomosexuality and PregnancyIn his article ‘Representing Identities’, Dan Danielsen has convincingly arguedthat legal discourse is inhabited by an irreducible undecidability’4that is the hallmark ofwhat Chantal Mouffe calls the political: an arena in which an array of possibleinterpretations-decisions vie for hegemony. In his attempt to reveal this basicundecidabiity, Danielsen examines doctrinal argumentation and legal representation inthe context of pregnancy15and homosexuality.16In both contexts, the doctrinal approach proves unhelpful in establishing aframework with which to predict outcomes or plan strategies. He finds, for instance, thatestablishing the courts’ positions on certain key issues (Is the agent responsible forhis/her conduct? Is his/her trait a result of natural or social environment? Does the agenthave 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 critiqueof the portrayal of pregnancy and homosexuality in legal discourse vis-a-vis more‘authentic’ representations. This approach draws upon criteria other than legal doctrinesor 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 extralegal common sense. We find, for instance, appeals to a person’s identity as inherent andstatus-like, or manifest and conduct-like, or a mixture of both.What the above two approaches have in common, Danielsen implies therefore, isa reliance on an old-fashioned concept of false-consciousness; that there is, indeed, adiscoverable and objective truth that we can discern and use as a point of criticaldeparture. They share the common presupposition that identities are either re-presentedChapter Two: Doing Theory 103or mis-re-presented; that they are always present (fully constituted) in advance and thateach representation is therefore either true or false. They do not allow for the possibilityof a deficient or partially-constituted identity; an identity in the making. In short, theyignore the possibility of an in-situ attempt to create a new identity, thereby suppressingthe emergence of the subject as lack. We can thus begin to discern a role for theprogressive critic: to expose the empty space which is so rapidly filled; to make plain thehistoricity of being; to make visible the contingent relation between the content of theidentity and the lack which it attempts to fill. The critic thereby widens the horizon ofpossible (and partial) identities which can compete for hegemony. Danielsen concludes:Perhaps we must recognize that legal discourse is itself a site for ongoinginterpretive struggle over the meaning of identity, rather than anindependent system of fixed images and rhetorical tropes which merelydescribes and distorts our experience. To do so might involve a legalpractice which seeks to understand and strategize about the ways in whichlegal discourse through its very indeterminacy, might be able to providethe space for our complexity and differentness to be represented but notdetermined.’7Emptying the ‘Family’The constitutive gap that defines every signifier can also be seen in legaldiscourse within the context of the family. Ever since this gap’s early manifestation asthe crack that separated Church and State, the split has traveled ever more deeply into thesedimented strata of our society. And one of its more recent casualties has been theinstitution of the family.As a result of the penetration of the democratic ideal of equality into evermoresocial spaces, there have been a growing number of dislocations. Many of these havecentred around the family which has, therefore, increasingly become a site of politicalChapter Two: Doing Theory 104struggle. In other words, it is serving as a surface of inscription upon which individualgroup complaints and demands become inscribed.Numerous genealogical and deconstructive studies conducted by feminist, criticalrace, and sexual minority legal scholars have shown how the family has historically beenrigidly 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 significantimplications because many state (and private) benefits are dispensed on the condition thatfamily ‘criteria’ are satisfied.The dislocation has been particularly acute in the case of lesbian and gay personswishing to adopt (or retain custody of) children as couples or single parents. Childcustody law, therefore, has proved to be a particularly useful window into the shiftingdiscourse surrounding the family.How exactly is the logic of the signifier operating here? In a first approach, wecan 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 oflife. The reaction to its suddenly being put into question is to point to a list ofcharacteristics which are meant to capture the ‘essence’ of family. But, as we saw inchapter one, the ‘essence’ (the objet petit a) always escapes the frantic attempts to pin itdown in an exhaustive enumeration of defining features. There is a constant andconstitutive overflowing.Nevertheless, there is a concerted effort to arrest this slippage of the signifiedunder the signifier of ‘family’. Oppositional logic is enlisted to help defend thisconsecrated institution. Drawing from such discourses as psychiatry, biology, religion,and political morality, sexual minority and mixed-race parenting are invoked to raise thespectres of impending threat, fear, and death. The very questioning of the sanctity of thefamily becomes synonymous with the disintegration of civilization. Tampering with thefamily is seen as pure evil and a potential return to the state of nature. Conservatives areChapter Two: Doing Theory 105most reactionary: women who seek to adopt children without experiencing the ‘proper’sexual relationship have obvious psychological problems; ‘virgin’ mothers are selfishbecause they are childless by choice and are prepared to ‘steal’ medical (insemination)and institutional (adoptive) resources away from those women who really need (anddeserve) them; lesbians and gays must have dubious reasons for wanting children;children of ‘virgins’ will develop a jaundiced view of sexual relationships; gays are arepository of all sorts of diseases, such as AIDS, which threaten the very fabric ofsociety; gays and lesbians are promiscuous and engage in unnatural acts, and aggressivelyproselytize the innocent. The liberals, for their part, adopting the immutability theory (incontrast to the conservatives’ ‘choice/social construction’ theory) seem to implicitlyendorse the hierarchy between heterosexuality and minority sexuality by accepting themas potentially legitimate members of a family so long as they do not flaunt theirhomosexuality. And, the oppressed, in their turn, see the family in its present incarnationas 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 aclear illustration of the process of identification. Defenders of the heterosexual ideal notonly view the family as possessing a list of positive properties. They also construe anyattempt to question those properties as an anti-social threat. Any attempt to affirm analternative family as ‘good’ will be seen as a threat and will serve as a means toconsolidate the conservative identity.However, as we already noted, there is always an inevitable slippage. Mixed-raceadoptive parents, for instance, is more or less acceptable as a legitimate component oftoday’s family. This has been done by focusing on the similarities between ‘traditional’families and potentially ‘new’ families, ie., by establishing a (subversive) equivalentiallink. Further demands by sexual minorities are introducing an even further expansion ofthe meaning of the family. It becomes obvious that the family has become a site ofpolitical struggle. In other words, ‘family’ now operates as the signifier for an idealChapterTwo: Doing Theory 106society ridded of oppression and all threats to its well-being. The myth of a better societyserves 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 linkswith the signifier ‘family’ by repeated association with it. It has thus gradually beenemptied of the particular content with which it was originally associated and has becomethe focal signifier designating opposition to the status quo. The political character of thefamily has thus become visible, and the question then becomes whether the courts arebest suited to supervise the hegemonic struggle between its different possibleconceptions. 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 aparticular content) is made possible on account of its originary constitutive split.And need we point out how the rights discourse has been instrumental in givingvoice to the demands of the oppressed and how it has provided the resources forsubversive 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 107Postmodernism as the Limit of Modernism: Variations on a ThemeEven a brief perusal of the literature centering about the postmodern debatesleaves one with the impression that advocates on either side of the fence are, more oftenthan 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 amore fruitful dialogue. In doing so, we have chosen to concentrate on several themeswhich are often evoked in this area of contestation: Onto-epistemology; Fixity versusNihilism; Power, Resistance, and Structural Constraint; the (im)possibility of Justice; andDiscourse, Ideology, and False-Consciousness.On the Onto-epistemological IssueHere, we might recall our discussion in chapter one of the materialistpoststructuralist debate. How else might we approach the issue? We could, perhaps,begin by remarking that postmodernism (or postmarxism) arises as a result of trying tothink the limits of modernism (traditional marxism). Though postmodernism’sbeginnings may be traced to a mutation in the discourse of aesthetics, it has graduallyspread into ever-new areas, steadily becoming the new horizon of our political andcultural existence. (PLM, 63)This new postmodern sensibility is characterized by an awareness of theprecarious and contingent nature of identification; that things could very well have beenotherwise. In short, postmodemism announces the historicity of being. And what exactlyhas made this new ethos possible? What historical account can we give to explain theemergence of this new mood? The answer has already been suggested by FredricJameson: the cultural logic of late capitalism.’9 In other words, the very rapid, indeedcrescendoing, pace of developmental change (based on wage labour), combined with theChapter Two: Doing Theory 108unevenness of the social, has made visible the process of definitional negotiation asopposed to definitional discovery. Rapid change has thus been the cause of a growingnumber of dislocations, antagonisms, and accompanying empty signifiers. Think, forinstance, 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 haveserved as just some of the rallying points for the new social movements. And it is theexposure 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 ofmodernist values such as reason, autonomy, freedom of thought, etc. Rather, it is theontological status of these values that is being interrogated. It is submitted that theconflation of these two positions, namely the political choice of values and the ontoepistemological status of these values, has created much of the confusion in thecontemporary postmodern debate. Let us take, for example, Christopher Norris whoenlists Norman Geras in his tirade against postmarxists such as Ernesto Laclau andChantal Mouffe.Norris’ essay ‘Getting at Truth’2°provides a clear example of the kind ofliterature that attempts to pass as academically productive and engaging; that tries toadvance 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 apersistent unwillingness to engage with issues raised by Laclau and Mouffe.Unfortunately, pretences of engagement (by means of occasional references to otherpeoples’ work (Geras) about still other peoples’ work (Laclau and Mouffe)) do notconstitute sufficient grounds for off-hand dismissals. Frustrated at not being able to dighis teeth into a meaty issue, Norris finds an unfortunate outlet: lashing out atpostmarxists, the harbingers of nihilism and mayhem. His lack of thorough engagementwith Laclau and Mouffe is evidenced by his heavy reliance on Geras. However, he doesoccasionally attempt a more direct portrayal of their project. It is here that glaringChapter Two: Doing Theory 109inaccuracies blind the reader. And no amount of erudition and deployment of theoreticalartillery will cover up this gaping deficiency.In a bid to illustrate our point let us present a few pairs of juxtaposed extracts andlet them speak for themselves:Dismissive Accusation I:Laclau and Mouffe can go as far as to argue that there is simply no relationbetween class or gender as conceived in ‘traditional’ (ie., Marxist orfeminist) terms and the range of strategies that is now opened up for a‘democratic socialism’ happily disabused of such ‘essentialist ideas andwilling to take its chance with one or other of the discourses on offer.21Antecedent reply I:To what extent do social classes exist nowadays? It would certainly befalse to say that they have entirely disappeared. If one thinks of theworkers in a mining enclave, for example, it is evident that the category ofclass may to a large extent be useful in characterizing them, since onefinds a fundamental continuity and stability between all their subjectpositions. And the same could be said for a variety of other sectors. But ifone thinks of the generalization of the phenomena of combined anduneven development in contemporary society, of the rapid rate oftechnological transformation and of the increasing commodification whichtakes place in late capitalism, it is clear that the prevailing tendencies leadto the decline of ‘classes’ as a form of constituting collective identities.This could also be reformulated in the following terms: there is a declineof the social -- as a set of sedimented objectivities-- and an expansion ofthe field of the political. (LTA, 165-166)Dismissive Accusation II:[Laclau and Mouffej show little grasp of their disabling politicalconsequences.22Antecedent reply II:This lack of closure modifies the nature and importance of politicalargument in two important senses. In the first place, if an ultimate groundis posited, political argument would consist in discovering the action of areality external to the argument itself. If, however, there is no ultimateground, political argument increases in importance because, through theconviction that it can contribute, it itself constructs, to a certain extent, thesocial reality. Society can then be understood as a vast argumentativetexture through which people construct their own reality.Abandonment of the myth of foundations does not lead tonihilism, just as uncertainty as to how an enemy will attack does not leadChapter Two: Doing Theory 110to passivity. It leads, rather, to a proliferation of discursive interventionsand arguments that are necessary, because there is no extradiscursivereality that discourse might simply reflect. (PLM, 78-79)And more recently:Many rationalists will certainly accuse such a political philosophy ofopening the way to ‘relativism’ and ‘nihilism’ and thus jeopardizingdemocracy. But the opposite is true because... the recognition that they donot have an ultimate foundation creates a more favourable terrain for theirdefence [ie., because it is not given in advance and thus must be argued forand justified-- JiG]. When we realize that, far from being the necessaryresult of a moral evolution of mankind, liberal democracy is an ensembleof contingent practices, we can understand that it is a conquest that needsto be protected as well as deepened. (RP, 145)Dismissive Accusation III:Theorists like Laclau and Mouffe... can argue that ‘reality’ is entirely aconstruct of linguistic, discursive or textual representation.23Antecedent reply 111:[T]he concept of discourse is not linguistic but prior to the distinctionbetween the linguistic and the extralinguistic.... Because every socialaction has a meaning, it is constituted in the form of discursive sequencesthat articulate linguistic and extralinguistic elements.” (PLM, 71) “[T]hedistinction between linguistic and non-linguistic elements does not overlapwith the distinction between ‘meaningful’ and ‘not meaningful’, since theformer is a secondary distinction that takes place within meaningfultotalities.” (PWA, 83) “The entire development of contemporaryepistemology has established that there is no fact that allows its meaningto be read transparently.” (PWA, 84) “[A]s a member of a certaincommunity, I will never encounter the object in its naked existence-- sucha notion is a mere abstraction; rather, that existence will always be givenas articulated within discursive totalities. (PWA, 85)Conflating the linguistic and the discursive, whose separation has been a majorconcern 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 Geraswhose work24 is a rejoinder to a L.aclau and Mouffe article (PWA) the substance of whichNorris clearly shows himself to be ignorant of.In turning to Geras, however, and in trying to move beyond Norris’ hot but emptytheoretical firepower, let us tackle more precisely the issue at hand, namely, how to graspChapter Two: Doing Theory 111the limits of modernism. In answering this question, we shall also see what makespossible 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 letus do this by considering the frequently-maligned concept of ‘utopia’.Utopia, understood as a blueprint for an ideal society (TDS, 232) devoid ofantagonism, constitutes the driving force behind political activity. The crucial issue,however, is how to distinguish between an essentialist utopia and an anti-essentialistutopia (anti-utopia). It is the irreducible ambiguity that accompanies any such attemptthat permits the above-mentioned slippage. This slippage surfaces in the followingpassage by Geras:Overtly denying that there is any being-as-such, any in-itself, in terms ofwhich competing discourses might be adjudicated, they [Laclau andMouffe] 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 tounderstand the reality of the social; as determinist, therefore misconstruinghistory’s actual openness etc.; which allows them to employ a language ofexternal reference, of objectivity, of truth... which allows them that long,that tireless, that never-ending ‘this is how it is’ with which the relativisttells you why you cannot say ‘this is how it is’, thus sending knowledgeand consistency to the devil.In a move reminiscent of ones made by Kate Soper, Diana Fuss, and other feministwriters,26 Geras has turned the self-declared anti-essentialist into an unwittingessentialist. Geras thereby touches the tip of a potentially fruitful question, but prefers toreturn to his now practiced scourge rhetoric. The question is how has this transformationbeen made possible? How has Geras managed to read a supposed anti-essentialist as anessentialist? In more simple terms, how can we distinguish between these two positionswithout throwing up our arms and declaring (somewhat unhelpfully) that ‘you know an(anti-)essentialist when you see one!’?Chapter Two: Doing Theory 112It is here that the issue of the limits of modernity emerge most forcefully. And weare 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 mostsophisticated theoretical apparatus to date to tackle this issue. Let us see how we mightshed some light.In a first approach, we could say that what differentiates utopia from anti-utopia isan implicit acknowledgment by the latter of the constitutive impossibility of the utopiandream; that antagonism is the condition of both its impossibility and possibility; that thesocial 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 makesthis line of reasoning plausible can be traced to an incomplete comprehension of thesubtle nuances of the logic of the signifier. The problem lies in the ambiguity evoked bythe split of the signifier; or, in Joseph Campbell’s terms, by the difference betweendenotation and connotation.We therefore realize that we are dealing with nothing less than the limits oflanguage. We know, from Saussure, that each signifier’s signified consists in its bundleof differences from other signifiers. So, we might attempt to introduce a new signifier todenote the limit of the social. But a problem immediately arises: since this new signifierderives its meaning from its opposition to all other signiflers within the social system, itis an internal moment of the latter, thereby disqualifying itself as limit. For a legitimatelimit must be radically external. (WES, 168-169) And this is true for each and everysignifier. So, how to overcome this theoretical dead-end?If we accept that what is internal to the social is meaningful, that which is externalwill 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, weChapter Two: Doing Theory 113are inescapably led the conclusion that each signifier is constitutively split. Not onlydoes a signifier denote; it also connotes.Perhaps we can now see why Geras is able to read anti-essentialism asessentialism: he moves entirely within the dimension of denotation; and like a two-dimensional 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 asGeras would have us believe. Anti-essentialism is not simply the symmetrical reverse ofessentialism. Rather, it is its negative supplement. In a similar fashion, we could also saythat postmarxism is the negative supplement of marxism; or that postmodernism thenegative supplement of modernism. And this implies not a rejection of modernism, butrather 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 madesuch advances possible. And what’s more, it is the anti-essentialist epistemology thatwill ensure a more robust and secure support of modernist values and themes. Thetransition is subtle, but full of progressive potential.Thus, the line separating a sublime limit from a pathological content is indeedfme. 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.) Inthis sense, then, it is also a gaping and unbridgeable chasm: the Lacanian real. Thecorresponding anti-essentialist ethics would therefore suggest a full assumption of thissplit. It is simply not good enough to insist that Marxism’s view of the category ofknowledge 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 self-transparency of a category like ‘class’ or ‘natural phenomenon’; that categories existwhich are the ‘true’ and, therefore, legitimate explanatory matrix in our historico-materialChapter Two: Doing Theory 114universe. This has already been clearly pointed out by Laclau and Mouffe. “Thus,” theyargue, 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’. Theproblem is not, of course, that it does not make perfect sense in our culture to call certainbeliefs ‘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 thoughtconcerning 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 thepast, we have today a direct and transparent access to things, which is not mediated byany theory.” (PWA, 89-90, note 17)So, in answer to our posed question, namely, how can we distinguish theessentialist utopia from the anti-essentialist anti-utopia we are forced to answer: withdifficulty. But can we not say that, thanks to Lacan’s logic of the signifier, we haveadvanced beyond the exasperated response ‘you know it when you see it’? If we were toreply that the distinction is based not so much on what you say but on how you say it; andif we simultaneously recall our foregoing theoretical detour establishing the constitutivesplit of the signifier; could we not say that the distinction has been scaled up a notch ortwo in terms of focus?Chapter Two: Doing Theory 115Fixity versus Nihilism: Anatomy of a false dichotomyAs we have seen, the constitutive ambiguity subverting every identity makestheoretically unsound any attempt to establish, on an a priori basis, the defmitive criteriafor specific categories of thought. In the minds of many, however, the admission of thisultimate historicity of being is only the first step in a chain of events which leadsinexorably to ultra-relativism and nihilism--an admittedly sordid state of affairs in whichjudgment and justice have become all but impossible. In this section, we shall expose thefalse reasoning that such a position entails by showing how it is caught within thedebilitating discourse of modernism; in other words, by showing how such conclusionscan 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 hackneyeddichotomies of freedomIdeterminism, subject]structure, and the like, it will also evoke itssister issue: What are the implications for a progressive-programmatic politics? Thoughreferences to this latter issue will be inevitable, we hope to establish our presentinvestigation primarily on a theoretical level, leaving the problem of strategy to a laterchapter. Here, we intend to concentrate on the mechanics of identification and how, inthe context of law, this might deepen our understanding of the nature of our sub-title’sdichotomy.Like so many other arguments centred around the postmodern debates,participants of most political persuasions proceed by locating themselves firmly onmoderate grounds and dismissing (straw-man) counter-arguments as extreme. As was thecase in the run-of-the-mill disputes among essentialists and anti-essentialists, this leads tolittle or no advance in our understanding. Mmost no theoretician holds a position ofunqualified relativism or unqualified determinism. So, to establish one’s theoreticalstance as moderate solely on the reactionary recoil from either extreme is no more than anempty gesture. Rather, the crucial task is to define more precisely what makes possibleChapter Two: Doing Theory 116the 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 ofidentification.As we may recall from chapter one, identification is driven by the constitutivelack of every subject. The important question is how this lack gets filled. In the absenceof any hint of undecidability, the filler must already be predetermined. In this view, othersignifiers which present themselves as available and, therefore, possible ‘fillercandidates’ 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 wasalso an illusion, for if its filler is determined in advance by a governing force, this lackwould merely be an internal moment of the already constituted identity of this governingforce. ‘Choice’ is thereby relegated to the realm of false-consciousness and is renderedimpossible in a genuine fashion.On the other hand, in the absence of any hint of determinism, the filler is not nowdrawn only from what signfiers are actually available. Rather, it is drawn from what islogicoily possible. Moreover, the lack of any determining force means there can be nocriteria of choice. We are simultaneously confronted with an expansion of possibilitiesand a vanishing criteriology. We are again presented with the impossibility of choice.We conclude, therefore, that the poles of our dichotomy are rendered identical ineffect. Both lead to the absence of freedom inasmuch as the latter is characterized by ameaningful capacity to choose (and not, for instance, by a Spinozist consciousness ofnecessity). In engaging with the modernist modes of analysis we have come up against aclear impasse: an attempt to grasp each extreme ‘on its own’ without reference to itsOther proves to be a meaningless exercise. Like a mobius strip, every identity is splitinto two incommensurable sides (local property) which are, nevertheless, united by thesame surface (global property). Ernesto Laclau describes this equivalence of poles interms of autonomy and determinism:Chapter Two: Doing Theory 117[T]he notions of total determination and total autonomy are absoluteequivalents. 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 thedevelopment of a certain activity, we can indeed propose the need toautonomize that activity in terms of the intervention interfering in itsdevelopment. The determination by the interfering force is clearly anexternal intervention in this case, since it is resisted by the person onwhom it is practised. Without interference, then, autonomy does not exist.The degree of autonomy may vary, but the concept of total autonomy isdevoid 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 toresist, the two will be partially effective and neither will manage topredominate exclusively. The field of relative autonomy is therefore a warof position in which neither of the two participant forces can achieveabsolute victory. This once again confirms what our whole analysis hasasserted: that the field of social identities is not one of full identities, butof their ultimate failure to be constituted. A realistic analysis of sociopolitical processes must therefore abandon the objectivist prejudice thatsocial forces are something, and start from an examination of what they donot manage to be. (NR, 38)We see, then, how postmodernism, in the guise of anti-essentialism, complicates ourmodernist picture. We can no longer begin from the assumption that identities are fullyconstituted. But, in so complicating matters, postmodernism opens up the space for thefreedom so dear to the ‘commonsensical’ moderate position. The two poles of theopposition point to separate, though mutually dependent, antagonistic forces. Each relieson the other for meaningful existence, but at the same time is not fully determined by theother. And every identity is traversed by this antagonism which, as we have said, isconstitutive.This is why the category of contingency best characterizes antagonism. Itharbours, within its midst, a constitutive tension. A relation between two elements iscontingent 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 inhabitedby its constitutive outside. And it is this negative supplement that is the driving force ofboth its existence and its subversion. So we have the paradoxical result that an identityexists only insofar as it is blocked and can never be fully constituted.Chapter Two: Doing Theory 118Let 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 showsthe manner in which an identity’s existence relies on an excluded Other. (And as wehave argued, this ‘showing’ can only take place within the modernist horizon but has theeffect ofpointing to that horizon-- a pointing or ‘showing’ which is characteristic of thepostmodern ethos.) Anti-essentialism exposes the relational (and contingent) character ofall identity. Identity, in other words, cannot help but be relational, even though thespecifics of relationality (and the excluded Other making such relationality and identitypossible) cannot be specified in advance. It is in this sense that we can say that identity isrooted. Not in some specifiable essence (list of properties or features), but rather in itssubversive Other. And we can now see why absolute relativism or nihilism as a criticismaimed at anti-essentialism misses its mark. It is only from an essentialist perspective thatthe 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 willimply eradication of that identity, no matter how minor the modification. And if each andevery identity is subject to doubt and modification, we are inevitably left with totalrelativism and nihilism. (We should point out, too, that a frequent positivist variation onthis theme consists in positing a totalizing essence but a core essence or meaning, thecounterpart to which, in legal jurisprudence, takes the form of a penumbra/umbradistinction vis-a-vis legal rules. But this attempt does not resolve anything; it merelypushes 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 andevery identity always relies on a repressed Other (unconscious, constitutive outside, etc.).So, a modification of characteristics implies a shfting of identity, not its radicalannihilation.Chapter Two: Doing Theory 119So far, we have exposed the traditional moderate who positions himlherself inreaction to one or other extremes to be standing on theoretically unsound ground. Inother words, modernist moderates have not been able to specify directly (and fullyassume) the ambiguous space they occupy because they are still wedded to an essentialistworld-view. But, perhaps, we can further speculate as to where the appeal to a nihilisticthreat owes its persuasiveness to. Can we not say, for instance, that unprecedentedtechnological growth accompanied by staggering rates of social change might havesomething to do with it? There is, in other words, a mushrooming feeling of uncertaintyas the openness of the social is revealed in all its nakedness. We are confronted with avery powerful desire for Order. What we have, in other words, is the emergence of thesubject 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 byfilling it.The danger arises when we are still caught in a modernist frame of mind whosepoint of reference is Truth and Reason, or in a premodernist frame of mind whose pointof reference is Truth and God. Do we have to remind ourselves of the constant newscoverage that suggests an unabating resurgence of nationalism, religious fundamentalism,racism, etc.? Far from indicating a regression to the past, this announces a possiblefz#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 betheorized more precisely in terms of let’s say, radical democracy. We need a theoreticalgrounding which will permit us to more fully assume our split and its accompanyinganxiety. We might even risk the thesis that our historical epoch of late capitalism marks atransition in our society from a very recent history of tradition and order to, what in thedomain of complex adaptive systems is referred to as, the ‘edge of chaos’ -- a state ofmaximum flexibility and adaptability. In this sense, we would suggest that the science ofChapter Two: Doing Theory 120complex adaptive systems possesses a panoply of theoretical concepts that are of directrelevance to social theory.And a more sophisticated theoretical framework usually translates into a morefine-tuned practical outlook. The crudest practical form of such (anti-essentialist)theoretical ruminations, of course, is the election. What are elections if not anacknowledgment of the (democratic) empty place of power,28 of a sense of non-permanence, of interrogation, of possibility, of deferral? Now, perhaps, we can begin tounderstand 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 thatwe 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 fullidentity consolidation that makes freedom and politics possible. For the completerealization of a substantive democracy erases its political-hegemonic origins bymisrecognizing its substantive content for the form of fullness it aspires to. And is thisnot exactly the same motif represented by the subject-structure dichotomy? There issubject inasmuch as the structure fails to achieve full identity with itself. There isautonomy inasmuch as there is no determinative ‘last instance’. Failure marks theemergence of the subject as lack and its accompanying anxiety for, and anticipation of,fullness. Successful identification implies the retroactive assumption of a subjectposition 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 trajectoriesthat 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 121On Power, Resistance, and Structural ConstraintModernist discourse operates on the assumption that a discoverable causal nexusexists that animates the development of our social universe. We have already seen thedebilitating consequences of such a determinist view. But we also saw how such aposition is inhabited, and thus salvaged, by its negative supplement.It is for this reason that Laclau can argue that Power, in the singular, does notexist. (MPI, PR) This is due to the presence of power’s Other: Resistance. Each relieson the other for its existence. Each cannot fully determine the other; which means thatonly powers, in the plural, exist. Thus, it is a Power’s failure to constitute itself as Powerthat creates the space necessary for the emergence of a surface onto which resistance (or acrisis of legitimacy) can be inscribed. Yet again, we find that conflict and antagonism areirreducible. Whereas power moves in the direction of reducing and concealing thenumber of possible historical trajectories, resistance moves in the direction of increasingand making visible the number of possible historical trajectories.We can conclude, therefore, that inasmuch as power operates to constrainbehaviour by reducing the number of available options, structural constraint has itsextimate limits. The impasse in the debate framed by such considerations (ie., the debatethat pits determinism against autonomy) could be diffused by a displacing question: Towhat extent does the pole of structural constraint dominate the social field at the expenseof a potentially more open and political alternative? In other words, the crux of theimpasse 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 isthe emphasis placed by postmarxists on the contingency with which historical events arelinked and decisions made. If, they argue, contingency is indeed so pervasive why is itthat change for the ‘better’ is slow (if at all) in coming? Why are so many patterns ofoppression so visible and predictable? The postmarxist rejoinder, however, consists notChapter Two: Doing Theory 122of denying these claims. On the contrary, such social critiques are fully assumed.Indeed, the apparent paradox is that such criticisms are made possible by acknowledgingthe constitutive contingency of every identity. It is precisely because specific identityformations are not necessary that a critique of the status quo is conceivable. In otherwords, an unwavering insistence on a historico-material determinism unwittinglyprecludes the utopia that traditional marxists so aspire to. Instead, we must fully theorizehow it is possible to on the one hand acknowledge that social behaviour may bepredictable and oppressive and, on the other, that it need not be so. So, the questionbecomes how to displace and dissolve oppressive structures from within an antiessentialist frame of reference.29Let us take the example of sexual abuse/harassment in the workplace, an examplewhich will also permit us to link our seemingly abstract account of power (as antagonisticand 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 makespossible the emergence of the category ‘sexual harassment’ in the context of (to be morespecific) employer-employee relationships? We can attempt a rough answer as follows.First, one person (the employee) is subject to the decisions of another person (theemployer). Second, the employer is sexually attracted to the employee, and sexualadvances are made. Third, the sexual advances made by the employer begin to be seen asinappropriate, offensive, even threatening by the employee.Now, it is important to realize that, though these moments may together constitutea threshold test in female sexual harassment claims made against males, they are notlinked to each other in any essential way. In other words, having authority over someonedoes not necessarily lead to sexual attraction which does not necessarily lead to sexualadvances which does not necessarily lead to an uncompromising insistence. However, aseries of historical events and ideologies, whose contingent roots have been erased, have‘conspired’ to make sexual harassment cases more numerous.Chapter Two: Doing Theory 123First, we had (and often still have) a particular family ideology which stresses theimportance of the man’s role as provider. (This ideology plays out in very many waysand is often linked to other institutional ideologies such as the Church. Somestereotypical factors militating against women who do apply for jobs include: tooemotional, easily distracted, pregnancy/child liabilities, etc.) It is not surprising that theoverwhelming majority of positions of authority are occupied by men. Second, we havea whole semiotics of sexual arousal fed by mass media, pornography, personalexperimentation, 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 rightto sexual gratification; that sexual prowess is a sign of virility and a badge of pride; thatwomen really do want sex, even if they seem to be protesting. In addition we have apublic discourse of sexual equality which relegates issues of sexual morality to theprivate sphere.Thus, we see that the contingent coincidence of these moments at a particularhistorical 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 actsof physical abuse per Se. Rather, it derives from the repression of the other possibleoptions 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 hystericalmode. Progressive critique, therefore, could proceed by uncovering the contingency of aseries of such acts, and by presenting an alternative set of options.To return to our example, one of the standard progressive strategies consists insimultaneously exposing the series of events which culminate in males dominating thejob market and promoting, say, an affirmative action plan to encourage female entry intothe workforce, especially in management positions. Alternatively, or in addition, wecould, as Duncan Kennedy does, attempt to dissolve the perceived necessary link betweensexual arousal and sexual gratification;3°in other words, to foster an attitude whereby, forChapter Two: Doing Theory 124example, 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’sinput) to experiment with dress.What such strategies have in common, then, is the attempt to loosen the seeminglynecessary ties between several sequential moments by exposing their contingentarticulation. But, here, we must issue a caveat. For mere recognition/acknowledgment ofthe histoncity of being does not necessarily result in change. We must remember that theelements present in the contingent articulation themselves each stand for, or abbreviate, awhole array of contingent-turned-necessary constellations. This, by the way, also appliesto the creation of ‘interests’: vested interests emerge as a result of a long and tortuoushistory whose contingent traces are erased by social sedimentation. And the deeper theseroots go, the more the deconstructive work that needs to be done, and the longer it willtake before it enters our consciousness so as to facilitate change.Sensitivity to the mechanics of such a transition (ie., from the sedimentation of thesocial to the openness of the political) puts us in a position to critique liberals such asCamille Paglia who, in the wake of the Hill-Thomas affair, for instance, suggests thatwomen who are subject to sexual harassment should merely ‘pick themselves up andleave’; and Alan Dershowitz who suggests that the battered women syndrome is aninjustice perpetrated on behalf of women who are stupid enough not to leave theirhusbands. 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 connotespatiality) completely overpowers diachronicity (meant to connote temporality). Theyalso assume an a priori fully constituted identity which simply needs the will power toaccess 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 ofhistory, ie., the still considerably heavy social sediment. Progressive reforms must,Chapter Two: Doing Theory 125therefore, be sensitive to what we could call their ‘depth reach’. The deeper into thesocial sediment reforms reach, the greater the potential dislocatory effects. We couldmention 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 ofconcealing the by definition uneven character of the social. And here we can discern theroots of the traditional marxist social critique. The second is the potential of a backlashstemming 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 theSpirit’. In other words, he suggests working hard at the ‘edges’ of interests; workingdiligently to disrupt seemingly far-removed assumptions and presumptions underpinningan 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 multipledislocations but will also make visible the radical histoncity of being and will open upnew political spaces where none existed before. New possibilities will emerge andhistorical trajectories will be more fluid. We can now, perhaps, see what Laclau has inmind when he suggests thatthe more dislocated a structure is, the more the field of decisions notdetermined by it will expand. The recompositions and rearticulations willthus operate at increasingly deeper structural levels thereby leading to anincrease in the role of the ‘subject’ and to history becoming less and lessrepetitive. (NR, 39-40)And what we must keep in mind at all times is that the undertaking of progressivestrategies must not lead us to believe that we act as fully constituted agents upon, andwithout 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 ournotion of power as repression. As a start, we must acknowledge that the space for changeChapter Two: Doing Theory 126does not emerge from a fully constituted will residing in the agent and exerting pressureon society. But neither does it emerge through a fully constituted society exertingpressure on an agent. Rather, change becomes possible only with the failure of identity-constitution. As such, the subject-as-will is always evanescent; it always was or alwayswill have been. In other words, change only becomes conceivable when the structure, ofwhich the agent and society are two moments, is dislocated. The incidence of an externaldiscourse supporting a right to be free from harassment upon a relation of subordinationconverts this into an antagonistic site of oppression. It is the realization that things couldbe otherwise (and better to boot) that accounts for the transformation of this relation andopens the space for critique. In short, we have the emergence of the subject as lack -- alack which wishes to be appeased by a signifier other than the one so overwhelmingly onoffer and which we now read as, for example, ‘submissive female’.Thus, we could say that the power inherent in the suppression of alternativeidentities is exposed and another little bit of the social sediment becomes politicized. Wehave the social equivalent of what Lacan calls the return of the repressed: each historicaljuncture is based upon a repression of alternative trajectories. And, as all identity isultimately unstable, precarious, and subject to subversion, there will always come a timewhen the real (ie., the radical unaccountability-contingency of a relation) will erupt.Chapter Two: Doing Theory 127On the (im)possibility of JusticeLet us now consider the vexing jurisprudential question as it is traditionallyposed: Does the judge discover the law, or does sfhe make it? Intuition tells us that it isneither one nor the other but, somehow, both. The problem arises when an attempt ismade 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 liberalRonald Dworkin, not unlike H. L A. Hart, relies on the notion of a core textual meaningthat constrains the interpretive activity, allowing creativity to play itself out only at theedges, the ‘penumbra’. And this despite Dworkin’s explicit efforts to displace constraintfrom text to practice. For Fish would readily accept Dworkin’s explicit approach, if onlyhe were to follow through with it.As is his common practice, Fish has recourse to an interpretive community, itselfhistorically 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 hascome to mean.”32 In this view, Dworkin’s appeal to a ‘core’ meaning merely highlightsthe vestiges of an outmoded essentialism that have yet to be shed.Can we not see the relevance of the debate between the structural marxists andpostmarxists to this legal issue? On the one hand, Dworkin, recognizing the evidentpresence of constraint, attempts to track down its source. Though he explicitly places iton the shoulders of judicial practice, the irreducible negative supplement causes his ownscholarship to seif-deconstruct, exposing an alternative source: the text. On the otherhand, Fish argues for the ultimate historicity of all being, including the interpretivecommunity which purports to ground the text.It seems that it is this last step that Dworkin is unwilling to take. And thisexplains the inevitable ‘revenge of the supplement’. By denying the contingency of theChapter Two: Doing Theory 128judicial practice itself, Dworkin is forced to regress back into a search mode whose aim isto uncover an ultimate ground, a settled shared meaning. Hence Fish’s claim thatDworkin is a positivist.Now, how exactly can psychoanalytic theory, via the logic of the signifier and themechanics of identification, help us better comprehend the false dichotomy betweendiscovering and making law? Let us begin with discovery. Here, the presupposition isthat the item to be discovered is already fully constituted as an identity, and that thediscovery 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 fully-formed 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 byantagonism, the distinction between discovery and willful creation becomes problematic.We immediately see the relevance of our earlier discussion on the false dichotomydeterminism/nihilism. Both poles have spatial-structural extent and completely miss thedimension of the temporal-subject.So, what exactly happens when a judge makes a decision? How can we conceiveof 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 bythe accused party (patriarch, heterosexist, logging company, landlord, racist, etc.). Thejudge, therefore, just like the place of power at the moment of a political election, isempty. S/he serves as a surface of inscription onto which demands and counterdemandsare inscribed and fight for hegemony. The act of decision-making hegemonizes onedemand at the expense of others. The decision necessarily represses an alternative set ofpossible outcomes whose actualization would inevitably have led to a different historicalChapter Two: Doing Theory 129trajectory. Thus, for example, a heterosexist conception of the family might achievehegemony over other possible conceptions, with all the consequences that entails.The difference between a judicial decision and a political election, however, isthat the former, unlike the latter, must be backed by clearly articulated and documentedreasons. It is here that the DworkinlFish debate becomes relevant, for the issue is how fardoes the principle of stare decisis (at least in common law jurisdictions) go in curtailingunfettered judicial activism? Or, to put it differently, how does the doctrine of precedentmake an outcome more predictable than, say, a decision based on a stochastic electoralprocess?To explain this difference, we must return to a previous discussion in which weimplied the Husserlian distinction between sedimentation and reactivation. Thesedimented nature of the social refers to the unquestioned and natural aspect of ourquotidian practices. In other words, it refers to those activities whose status as hegemonichas not been pointed out and can therefore not even be conceived as such. Such activitiesare strictly habitual: we do them because we’ve always been doing them; because itbelongs 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 asedimented social formation; of saying ‘things could be otherwise’; of exposing thepolitical in the social, the contingent in the necessary. (And can we not, here, see how thesedimentation/reactivation opposition closely and insightfully corresponds to thetraditionally dichotomized opposition of factlvalue?)We can see, therefore, that what is responsible for sedimentation (ie., the erasureof the political character) is repetition. Now we can appreciate the relevance of thecitational practice of the judiciary, which we alluded to in the first chapter. The functionof the doctrine of precedent is nothing short of the repeated veiling of the political. Thisexplains why common law reform has historically been, at best, incremental. It has alsobeen responsible for a good deal of the mystique of law; that reason and rationality couldChapter Two: Doing Theory 130deliver an indisputably correct decision (let us recall Dworkin’s Hercules); that thejudge’s role was to discover the true workings of the law and objectively deliver aninevitable outcome.But, alas, things are not so simple any more. Rapid social change spurred on byburgeoning new knowledges and diminishing geographical distances has beenresponsible 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 nosurprise that the Legal Realists and their heirs, the Critical Legal Scholars, whose task itwas precisely to uncover such politicking, should have emerged just as the fast-pacediterative logic of late capitalism was tightening its grip on developed societies. We couldeven say that the judicial penchant for precise legal logic made such a task easier. This isbecause, among other reasons, judgments sharpened to a point their inevitableinconsistencies and circularity, especially when accompanied by dissenting decisionswhich claimed the same ‘objective’ laws as their source of reasoning.Though many die-hards still defy such trends by staunchly defending the sanctityof 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 legalreasoning. Structural constraint through citational practice is further threatened by agrowing number of increasingly antagonistic, split decisions. All these factors translateinto a gradual erosion of faith in our judicial system’s ability to transparently access andjustify legal decisions. Explicit references to past practices in an effort to ground ourreasoning will no longer hold water when such sedimented activities are themselvesbeing reactivated and struggled over. Think, for instance, of the attempt to justify rape bypointing to provocative dress codes; or of imputing consent in the lack of physicalresistance shown by the victim. Each attempt to ‘pass the buck’ for the purposes ofgrounding a decision fails because the ‘natural’ meaning of these social practicesChapter Two: Doing Theory 131(provocation, lack of resistance) are abbreviations of other sedimenteddiscourses/ideologies which are themselves being contested.Thus, together with an increasing rate of social change, we see that the ‘depthreach’ can only extend to even deeper levels of social sediment, thereby making legaldecision-making (and history) less predictable. Law is being stripped of its judiciallymetaphysical dress to reveal raw politics. In short, late capitalism has unwittinglyannounced 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 fullrealization is synonymous with its dissolution. Why? Because justice implies criteria ofjudgment. But justice also implies absence of bias, which is just another name for criteriaof judgment. We are thus led to accept the existence of an irresolvable paradox: justiceis possible so long as its final realization is radically impossible. In other words, itsimpossibility is its condition of possibility. And here lies, as Derrida points out, thescandal of the expression ‘enforceability of law’, for it implies a source which can beeither just or unjust in its application of the law.33 What we have learnt, however, is thatlaw can only be tautologically grounded: law is just because it is the law. And anyattempt to defmitively ground it in distinct reasons simply conceals the violent andradical exclusion of alternative reasons.But what are the implications for critique? If justice is simultaneously possibleand impossible how can we aspire to make any claim about anything? The answer issuesforth once we abandon the hope for a transcendent logic which can guarantee ourreasoning. Instead, we must fully assume political reasoning as the only defensible (butnot guaranteed) approach to legal decision-making. Law, in other words, constitutes butanother political forum in which the logic of the signifier is played out to the fullest. Inthis view, distinctions between status and conduct, authorial intent and textual meaning,hard cases and easy cases are subsumed under different political strategies whichChapter Two: Doing Theory 132establish precarious chains of equivalences in favour of one or another outcome. Thedrawing of lines and the creation of distinctions, therefore, is always a political act andwill always be subject to challenge and redefinition.Now, in order to interrogate more closely the nature of political argument andhow that relates to a perceived unjust social landscape we will devote the following shortsection to an examination of ideology and false—consciousness.On Discourse, Ideology, and False-ConsciousnessWe can make relevant our discussion on structural constraint and justice to thevexing issue of false-consciousness through the question: Does there remain anylegitimate use for this latter category?False-consciousness, as traditionally understood, relies on some notion ofstructural constraint This is because it is premised upon an observed pattern ofbehaviour -- 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 whichare offered as the truly genuine and accurate account of how the world operates. Theaccurate 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 falselytreated as a thing-in-itself instead of treating it as an abbreviation of a specific relationbetween 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 sexuallyliberating 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 transparentlyaccessible to a chosen few. It makes as much sense to declare one’s certainty as to adiscovered Truth as it does to establish once and for all the meaning of the shark inChapter Two: Doing Theory 133Spielberg’s Jaws. Does it signify the ultimate symptom of capitalism: exploitation? Is itthe 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 totalitariantemptation -- a state of affairs that permits no discussion and no dissent. Let us not forgetStalin, 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 thesedimented domain of the social and the reactivated domain of the political. Whatconstitutes the former are a predictable set of practices brought about by the unthinking(unquestioned) repetition of specific sequences. In order to effect change, therefore, wemust first expose the contingently connected steps of such sequences which have onlyretroactively, and through repetition, been converted into necessity. Offering alternativesequences provides a way to make visible this contingency. Offering alternativesequences as the way things ‘really are’, however, achieves at least two things. First, itpropagates the myth of the ‘neutral’, ‘objective laws of history’ by keeping the politicalcharacter of social relations concealed: all we need to do is ‘open our eyes and see thingsfor what they really are!’ Instead of looking at such ‘uncovering’ as a process by whichwe gain access to a revealed Truth, we must consider it as an uncovering of a truth -- atruth, however, which we are willing to fight for.[hf social relations are contingent, it means that they can be radicallytransformed through struggle, instead of that transformation beingconceived as a self-transformation of an objective nature; if power isineradicable, it is because there is radical liberty that is not fettered by anyessence; and if opaqueness is constitutive of the social, it is precisely thiswhich 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 thana plurality of options) is offered as an alternative. A psychoanalytic ‘crossing of theChapter Two: Doing Theory 134fantasy’ would involve exposing this contingency-turned-necessity. A full assumption ofthe antagonism, in its ultimate meaninglessness, widens the horizon of possibleinterpretive principles. The point is to transform the unthought, unproblematized socialpractice into a political site; to institutionalize the emergent antagonism by creatingconditions 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 answermust be negative. However, again from the postmodern perspective, the notion of false-consciousness may still have a role to play if reconceived as a practice of giving way toone’s desire; of giving way to the totalitarian temptation; of veiling the split of thesIgnifier; of succumbing to the will to totality; of misperceiving SI and the objet petit aas fused; in short, of striving for closure once and for all. At the same time, however, wemust recognize that, as part of our ‘will to critique’, the elimination of ideology is bothimpossible and undesirable; for without it, even a partially constituted Society would beinconceivable. We shall conclude with Laclau’s rendition of the new roles for ideologyand false-consciousness as members of the critical tool-bag.The critique of the ‘naturalization of meaning’ and of the ‘essentializationof the social’ is a critique of the misrecognition of their true character.Without this premise, any deconstruction would be meaningless. So, itlooks as if we can maintain the concept of ideology and the category ofmisrecognition only by inverting their traditional content. Theideological would not consist of the misrecognition of a positive essence,but exactly the opposite: it would consist of the non-recognition of theprecarious character of any positivity, of the impossibility of any ultimatesuture. The ideological would consist of those discursive forms throughwhich a society tries to institute itself as such on the basis of closure, ofthe fixation of meaning, of the non-recognition of the infinite play ofdifferences. The ideological would be the will to ‘totality’ of anytotalizing discourse. And insofar as the social is impossible without somefixation of meaning, without the discourse of closure, the ideologicalmust be seen as constitutive of the social. The social only exists as thevain attempt to institute that impossible object: society. (IS, 27)Chapter Two: Doing Theory 135Notes to Chapter Two1We can see, here, why the objet petit a is impossible top down, even in theory. Sometimes it evokes theorder 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 afully-sutured identity. Sometimes it evokes the symbolic Other inasmuch as it points to a particularcontent-meaning derived from the system of signification, S2. And sometimes it again evokes the order ofthe real inasmuch as it represents the real Other which is often perceived as the impediment to full identity.2Butler, Judith, ‘Poststructuralism and Postmarxism’ (1993)23(4) Diacritics 3 at 9.31bki at 10.4Kuhn, Thomas, S., The Structure ofScientjfic Revolutions (Chicago: U. of Chicago Press, 1962).S2 a51n Lacaman mathemes: — —Si $cx $6hi Lacaman mathemes: — —S2 Si$ Si71n Lacarnan mathemes: — —a S2Si S281n Lacanian mathemes: — —$ a9See 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 1-35.10Jacobs, Andrew M., ‘The Rhetorical Construction of Rights: The Case of the Gay Rights Movement,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 homosexualityas ‘always wrong’, and 74% did in 1989”: Jacobs, ibkL at 730, again referring to Wood, ibiS at 583.11”Scourge rhetors deploy moral (Biblical), medical (plague/sickness), and other debasing (vermin) imagesto 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 notviolate the constitutional privacy rights of gays by enacting a law that criminalized private, consensualhomosexual 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 groupbased on status) by referring to Georgia’s presumed disdain for sexual sodomy and to “Judeao-Christianmoral and ethical standards” (at 96). Justice Blackmun, in his dissent, made the case for ‘groupness’ byreferring 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) 388U.S. 1 holding that a Virginia statute barring mixed race marriages was unconstitutional)) and showing thatBiblical 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 onehand, and limiting their demands to a right to be free from actual harassment (the presence of unenforcedanti-sodomy laws qualified only as potential harassment). The Bowerr decision shows a very definite splitbetween the public discourse of tolerance and the private discourse of disgust.13This was “a measure designed to protect lesbians and gays from housing and employmentdiscrimination”: Jacobs, supra at 742-743. Here again we have a shift from the affirmation/scourge type ofdiscourse to the victünageltolerance type of discourse. Though the bill was eventually vetoed, it wasdebated primarily within the latter matrix. In other words, it was vetoed not because homosexualityconnoted immoral conduct, but rather because, though homosexuality was a recognized characteristic of agroup, already-existing anti-discrimination legislation was adequate.t4Danielsen, Dan, ‘Representing Identities: Legal Treatment of Pregnancy and Homosexuality’ (1992) 26New England Law Review 1453. See also Yablon, Charles M., ‘The Indeterminacy of the Law: CriticalLegal Studies and The Problem of Legal Explanation’ (1985) 6 Cardozo Law Review 917, where he notesChapter Two: Doing Theory 136that “[t]he Critical (Legal Studies] claim of legal indeterminacy may be understood as a declaration thatdoctrine can never be an adequate explanation of legal results.”15Here, he considers the following three groups of cases: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.1196.16Here, he considers the following three cases:1) On hiring policy: Padula v. Webster (1987) 822 F. 2d 97 (D.C. Cu.)2) On firing policy: Rich v. Secretary ofthe Army (1984) 735 F.2d 1220(10th dr.)3) On hiring policy: Jantz v. Mud (1991) 759 F.Supp. 1543 (D. Kan.)t7Darnelsen, supra at 1507-1508.185ee, for example, Cooper, Davina, and Didi Herman, ‘Getting “The Family Right”’: LegislatingHeterosexuality in Britain, 1986-1991’ (1991) 10 Canadian Journal of Family Law 41; Boyd, Susan, ‘SomePostmodernist Challenges to Feminist Analyses of Law, Family and State: Ideology and Discourse inChild Custody Law’ (1991) 10 Canadian Journal of Family Law 79.19Jarneson, Fredric, Postmodernism, or, the Cultural Logic ofLate Capitalism (Durham: Duke UniversityPress, 1991).20Nomis, Christopher, The Truth About Postmodernism (Oxford: Blackwell, 1993) at 257.2lfljJ at 290.2pjj at 291.2311)W at 291.24Geras, Norman, Discourses of Extremity: Radical Ethics and post-Marxist Extravagances (London:Verso, 1990).25Jbi at 163, as quoted in Norris, Christopher, The Truth About Postmodernism , supra at 292.26See, for example, RP, 87, and RP, 89, note 16.27Geras, Norman, Discourses ofExtremity, supra at 162, as quoted in Norris, Christopher, The Truth AboutPostmodernism, supra at 190.28Lefoft, Claude, Democracy and Political Theory (Minneapolis: U. of Minnesota, 1988).29In order to visualize our problem more clearly, it might be analytically helpful to distinguish between twonot unrelated moments of the structural totality: structural constraints in the operation of agents; andstructural constraints in the operation of society itself. In order to illustrate the first instance, we mightcompare two subjects in identical ‘external’ circumstances. In making a decision, one subject considersmore factors than the other. (Of course, it is assumed that each individual’s historical trajectory up to themoment of decision will have been structured differently.) In order to illustrate the second instance, wemight compare two subjects with identical historical trajectories up to the moment of decision, but whosuddenly find themselves in different ‘external’ surroundings, one offering a greater selection of options toconsider than the other. The question then becomes whether we can come up with a useful explanatoryframework to account for these differences.30Kennedy, Duncan, ‘Sexual Abuse, Sexy Dressing and the Eroticization of Domination’ (1992) 26 NewEngland Law Review 1309.31Fish, Stanley, Doing What Comes Naturally: Change, Rhetoric, and the Practice in Literary and LegalStudier (Durham, NC: Duke University Press, 1989).32Kaplan, Leonard, ‘Without Foundation: Stanley Fish and the Legal Academy’ (1991) 16(3) Law andSocial Inquiry 593 at 601.33Derrida, Jacques, ‘Force of Law: The “Mystical Foundation of Authority”’ (1990) 11 Cardozo LawReview 919 at 925.137CHAPTER THREE: The Law and Politics of Rightsand IdentitiesIn this chapter we will describe the rights debate as it is often discussed inscholarly literature. ,The purpose of this account is to provide a backdrop against whichour running (postmarxist) commentary and our subsequent sections (regarding a Lacaniancontribution to the rights debate) can be read. And, because the rights discourse isresorted to by individuals and groups as an integral instrument in the representation oftheir interests and, therefore, in the construction of their identities, we shall also examinein more detail the significance of the political process of identification.Rights Discourse: The Traditional DebateThe Critique of RightsThe 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 saythat the most vocal opposition to, and denigration of, rights has come from a group ofChapter Three: The Law and Politics of Rights and Identities 138traditional marxists within the CLS group. We have in mind, here, such scholars as CohnSumner, Judy Fudge, Harry Glasbeek, Ronald Weitzer, Jay Feinman, Peter Gabel, andothers. And what do we mean by traditional marxism? We mean to refer to a particularstream of marxism which, in contradistinction to postmarxism, aspires to some form offoundationalist grounding, whether in the guise of instrumental determinism or structuraldeterminism, with or without minor modifications of the ‘relative autonomy’ type.We can briefly summarize the main criticisms. First, there is the argument thatthe state, normally taken to designate the public arena, in explicitly ascribing rights toeveryone Irrespective of distinctions based on race, sex, sexual orientation, etc., has madeeasier the logically illegitimate deduction to be made that equality in the public domainimplies equality in the private domain, ie., that defacto equality exists in a realm of dejure equality. Critics claim that substantive inequality has been made invisible onaccount of a pervasiveformal equality. In this view, equality issues do not even have theopportunity to arise in the private realm. Of course, this critique, as does the. liberalideology the criticism is aimed at, presupposes a clearly delineated public realmuncontaminated by the private. We will argue that such a stark distinction is problematicfrom 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), theirresolution is sought through an overwhelmingly formal, rather than contextualizedapproach. This has the effect of perpetuating formal equality at the expense ofsubstandve equality. And finally, that rights themselves are indelibly marked withinjustice. 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 ofthe (unjust) capitalist mode of production. Thus, the debilitating forms of the capitalistmode of production, which cannot help but be expressed through the rights discourse,include individualism with its alienating tendencies, reified abstraction with its’ appeal toChapter Three: The Law and Politics of Rights and Identities 139a dubious neutrality and objectivity, and irreducible indeterminacy with all theincapacitating 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 ofridding the state of a unique religious identity, pointed out that “[t]he limits of politicalemancipation are seen at once in the fact that the state can free itself from a limitationwithout man actually being free from it, in the fact that a state can be a free state withoutmen becoming free men.”1 In a private, social landscape where imbalances (whetherbased on property, religion, gender, race, sexual orientation, etc.) are absent, theabolishing of such explicit state allegiances is certainly in accord with the principle ofliberty and equality, on both a formal and substantive level. However, in a landscape ofdeep substantive inequalities, pretences of equality are just that: pretences.In the context of the transition away from the ancien regime, and the state’spronouncement that the right to property will no longer officially and politically beconfined to the few and privileged but, rather, available to all, Marx went on:mhe political annulment of private property not only does not abolish itbut even presupposes it. The state abolishes distinctions of birth, rank,education, and occupation in its fashion when it declares them to be nonpolitical distinctions.... Nevertheless the state permits private property,education, and occupation to act and manifest their particular nature asprivate property, education, and occupation in their own ways. Far fromovercoming these factual distinctions, the state exists only bypresupposing them.2Similarly, in the feminist and race contexts, the state has divested itself of itssexist3 and white supremacist forms by abolishing all explicit references to distinctionsChapter Three: The Law and Politics of Rights and Identities 140based 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 atnon-state sites. It relegates responsibility for their ‘resolution’ to the socio-civil sphere,whose uneven terrain provides innumerable opportunities for the development of sites ofoppression and antagonism.4For example, collective agreements and union constitutions are held to be privateand not subject to public scrutiny, despite evidence that such documents often result inlarge differences between wages received by men and women. “The emphasis is uponwhether the impugned act can be identified with the formal attributes of governmentalauthority and not upon whether it has actually inhibited or damaged the interests ofparticular citizens.” So, “[bjecause the courts have opted for a liberal approach to thescope of rights and freedoms guaranteed by the Charter, the coercion of privacy remainsintact in the employment relation.”5We can see, therefore, how a series of equivalential displacements linking stateneutrality to the idea that ‘true’ freedom comes from keeping the state at bay, results in anegative 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 bewelcomed. Indeed such formal recognition is an important first victory that cannotsimply be dismissed. Marx was clear on this point: “Political emancipation is indeed agreat step forward.”6 Rather, it is to imply that political emancipation is not the end butthe beginning of an uphill hegemonic battle centering around the nodal points of libertyand equality.Chapter Three: The Law and Politics of Rights and Identities 141Rethinking the public/private and politicallsocial dichotomiesThe above account is typical of the traditional marxist critique of the neutrality ofthe state. Postmarxism, however, while in agreement with the marxist sentiment thatstate-centred equality should not be mistaken for non-state-centred equality, would insiston 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 formto public to political to state on the one hand, and equality to substance to private tosocial to non-state on the other. Thus our agreed-upon observation that non-stateinequities may persist/exist even if we accept that state inequities have been eliminated isillegitimately transformed (and causing a divergence of opinion between traditionalmarxists and postmarxists) into a desire for substantive equality and a condemnation offimnal equality.Our (postmarxist) quarrel centres on the formal/substantive dichotomy. Thereason for this derives from the fact that it often serves to import a traditionalunderstanding of false-consciousness. Thus, formal equality evokes a sense of illusionand false-consciousness, and substantive equality functions to promote a sense of‘realness’ and truth. As we have argued elsewhere, however, a postmodern antiessentialist approach forces us to revise such a conception in favour of one which seeks toestablish 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 theessentialist tendencies shared by both the liberals and their (traditional) marxist criticsstrike the eyes. For both disputants presuppose a fully constituted public space that canclearly be delineated from the private space, and whose demarcation coincides exactlywith the separations implied in the pairs political/social and state/non-state. Theequivalential chain that links, and then opposes, each side of these dichotomies is strictlyChapter Three: The Law and Politics of Rights and Identities 142articulatory and thus hegemonic. It is an articulation that even ‘moderate’ liberals, suchas Rawis, rely on in order to expunge issues of religion and sexuality from the publicdomain.What a postmarxist approach teaches us is that every hegemonic articulation issubject to a constant signifier-signified slippage whose propelling overdeterminationallows it only two degrees of freedom: fast-forward, or slow-forward. Slow rates ofsocial change have led to sedimented and unquestioned meanings. Slow-forwardness isthus misperceived as static and essential. Increased rates of social and technologicalchange have resulted in increased tensions -- tensions which are constantly prying openmore and more sedimented social spaces to politically contested horizons.By disarticulating this long-surviving chain, we find a whole new set ofpossibilities opening up. The state no longer has to be identified with the political oreven with the public. This means that discriminatory hiring practices conducted in the‘private’ sphere can be legitimately contested on a political level. Disarticulating thestate from the political also means that, though state apparatuses (legislative, executive,judicial) have been, and still are, useful avenues for political debate and contestation, theyneed not be the only ones. New arenas for hegemonic struggle can be invented andestablished. But we must remember that the process of disarticulation is not somethingthat has sprung up out of logical necessity. Of course, it was always afready logicallypossible; but it also has a specific historical origin, namely the rapid rates of growth andexpansion and the accompanying proliferation of new social movements so characteristicof 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 analternative approach to conceiving the split. Instead of attempting to classify relations aseither public/political or private/social on an a priori basis, perhaps we can entertain thenotion that each element of the pair relies on the other for its existence, and that howChapter Three: The Law and Politics of Rights and Identities 143exactly each becomes entangled with, or connected to, other signifiers is a matter ofhistorical contingency and contextual specificity.How else can we explain the feminist motto that the ‘personal is political’? Whatwas always taken to be of a private ilk (the personal) has suddenly been dramaticallytransformed into a site of political contestation. The political does not entail a necessarylink to the state. Indeed, as it is often argued, it is the very absence of the state in, forexample, spousal abuse cases that has spurred political debate. Nevertheless, the factremains that, in contemporary society, most avenues of political satisfaction lie at thedoorstep of the state (whichever of the three branches of government one chooses). Thus,issues in which the state is primafacie absent must, in the end, always be converted intoones 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 non-state fora (for instance, liocal and national media-mediated, interactive, issue-specific,polling and voting) or quasi-state fora (minimally bureaucratic, administrative tribunalsand ad-hoc commissions) become more accessible.We see, therefore, that what is political cannot be determined in advance. This isbecause the political is about contested meanings, and meanings are overdetermined andconstantly evolving. On a general level, we could say that the political refers tointerrogation, contestation, and hegemony. The social, on the other hand, refers to anunquestioned mode of existence, to what is assumed, uncontested, habitual. Each of thepolitical and the social (and any other such dichotomy, for that matter) requires itsopposite for support: the social tries to hegemonize the political, and the politicalconstantly disrupts the social. They exist in a permanent and irresolvable tension inwhich 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 ourapparently neat compartmentalization. And this has to do with the temporal nature of theChapter Three: The Law and Politics of Rights and Identities 144political, which is, of course, linked to Lacan’s real order and to Laclau and Mouffe’santagonism. The political as a signifier is at once meaningless and meaningful -- in otherwords, split. And this split makes the social possible. In this sense, the political haslogical priority over the social. Why? Because it is the very pronouncement of aparticular political demand (eg., the right to economic equality for women) whichretroactively creates the political/social split. Again, we see here the logic of thesignifier: the particular political demand manifests its split by shedding its particularcontent to totalize and focus a diffuse sense of dislocatory injustice into a coherentopposition to....what? The social.Now, to conclude this discussion, let us draw out the implications stemming fromrefusing to hear a new demand. What happens, in other words, when no public forum(usually linked to the state) serves as a site at which the status quo can be challenged?Clearly, this would result in the build-up of antagonistic tension. The antagonized forcewould either be coerced into silent submission or would be forced to seek alternativeavenues of expression (civil disobedience, media-mediated information campaigns,violence, etc.). We have, here an indication of what Chantal Mouffe is aiming at whenshe calls for a transformation of antagonism into agonism. It is not so much thatantagonism is eliminated, but rather that it is channeled into an environment in whichstruggles to hegemonize relevant empty signifiers are more likely to be conducted withwords rather than with swords.So, assuming that an issue is recognized and accepted as political (ie., contestable,revisable) and has found a suitable political forum, let us now examine the traditionalrights debate as it tackles the issue equality and how that plays out in the legal arena.Chapter Three: The Law and Politics of Rights and Identities 145Formal versus Contextual Approaches to Resolving Equality IssuesThe legislature and judiciary, as part of the state apparatus, are not onlyinstruments with which, as we have just seen, the socio-political space is artificiallycarved into the formal and public sphere on the one hand, and the informal and privatesphere on the other hand; rather, they are also the instruments with which the concept ofequality is defmed, once it is determined that we are on the public side of the divide.These are the two private/public hurdles that Judy Fudge identifies as restricting theability of women to attain substantive equality in the context of Canadian Charterlitigation:First, it is used by the courts to determine the scope of the rights andfreedoms guaranteed in the Charter. Secondly, once the hurdle of theCharter’s application is surmounted the distinction arises, albeit covertly,in the formal approach to equality rights which has typically characterizedliberal constitutional jurisprudence.7It is apparent, according to Fudge, that the conception of formal equality haspredominated in the legal discourse, which usually involves unfolding the tautologicalAristotelian definition of equality8 in terms of the sameness-difference logic which, asMartha Minow points out,9 is usually done without reference to that from which theassessment of sameness or difference is made. Thus, numerous feminist studies by, forexample, Carol Smart and Catherine MacKinnon, have shown that upon closer scrutiny, itbecomes apparent that this reference point can be taken to be, more often than not, themale sex. 10 The argument, in other words, is that a male-biased formal equality concealsa female-burdened substantive inequality.The result of such a conception of equality is, among other things, “equalitychallenges by men to legislation designed specifically to address women’s economicsubordination,”11thus depriving “women of important material benefits provided by theChapter Three: The Law and Politics of Rights and Identities 146State”2and causing feminist organizations “to spend precious time, energy and money inthe courts defending legislation that it took many women many years to achieve.”13And we find the same frustration exhibited by scholars in the context of the racestruggle. Kimberle Crenshaw, for instance, remarks that “[w]hite race consciousness,which includes the modern belief in cultural inferiority, acts to further Blacksubordination by justifying all the forms of unofficial racial discrimination, injury, andneglect that flourish in a society that is only formally dedicated to equality.”4 Indeed,“[w]orking in tandem with legal consciousness, race consciousness legitimates theinequities of contemporary society.”’5Now, the most often cited counterpart to, and remedy of, the fininal conception ofequality is the contextualized conception of equality. This “requires the court to considerthe socio-historic roots of current inequality.” Indeed as Fudge points out, in the feministcontext, “regardless of the different perspectives on the aetiology of women’s socialinequality [whether economic, familial, sexual, etc. -- LJG] the vast majority of feministsnow advocate a contextualized approach to equality questions which requires that judicialrecognition be given to women’s private experience of subordination.”16 However, asFudge goes on to say, the fact that it is logically possible to invoke such an interpretationdoes not mean that it is likely, at least on a systematic basis. 11Taking a Closer LookWhat the above account implicitly highlights is the precarious nature ofpurportedly forceful distinctions which aim beyond the confines of a particularizedexample. We witness, again, the subtle but noticeably subversive slippage which worksChapter Three: The Law and Politics of Rights and Identities 147to undermine both the liberal legal framework and the marxist-feminist critique of it. Letus examine this more carefully.At first, we had the invocation of the public/private dichotomy in order to excludenew equality demands. Think, for instance, of the sexual assault charge lodged by a wifeagainst her husband which, on account of her status as wife (and, therefore, a privatematter) was until very recently invalidated by tort law. Now we have the re-invocation ofthe public/private distinction by liberal legal ideology in an effort to exclude otherwiserelevant evidence in the assessment of a (public) equality claim. This so-called‘exclusionary’ practice is what feminist and race critics stigmatize as the formal approachto equality. And in opposition to this, they advocate a contextualized approach whosemain characteristic will be to be more ‘inclusionary’.What often happens, however, is that ‘formal’ equality becomes strongly imbuedwith the notion of illusion, and ‘contextualized’ equality becomes identified with reality— a slippage similar in form to the one we outlined in our discussion on the neutrality ofthe state. In other words, we slip into a traditional ‘false-consciousness’ mode of critiquein which the contextualized approach is hegemonized by a particular ‘real’ description(and its accompanying ideal) and treated as the only alternative to the liberal status quo.How, then, can we maintain our critique of the liberal status quo withoutappealing to a transparent truth? Simply by insisting on, and maintaining, the distancebetween the challenge to the status quo (the empty signifier) and its multiple possibleincarnations (the fillers). We see, therefore, that conservative-liberal jurisprudence hastraditionally operated to exclude other possible alternatives, mainly through the citationalmechanism: The standard practice of stare decisis operates to maintain and entrenchsignifying structures. We can thus contrapose this mode of rigidification with one whichaspires to greater fluidity: the contextual-historical approach, which is meant to consider,for example, “the structures of power in society and the systemic legacies of exclusioninvolving the group based characteristics of individuals.”’8Chapter Three: The Law and Politics of Rights and Identities 148What we must bear in mind, however, is that no pathological appeal is made to aunique, ‘really’ existing state of affairs. What is suggested is a widening of the horizonof possible evidence to be considered for judicial reasoning. This translates into anincreased pool of floating signifiers (via, for example, social science data) from which tofashion new equivalential links to equality. No doubt predictability and certainty willsuffer on account of this broader approach. But, happily, such loss is readilycompensated by the freedom that rushes in to take its place.’9One last comment before we move on. Increased freedom does not mean that(what someone might consider) progressive outcomes will follow. It means only that therange of possible outcomes and justifications increases. Let us recall Judy Fudge’scomplaint that ‘formal’ equality provisions have necessitated the investment of valuabletime and money to defend progressive legislation. Here, we see Fudge fall into theessentialist trap whereby a progressive piece of legislation is seen to warrant and deservethe status of Truth and permanence. In short, we have the conflation of ‘progressive’with ‘substantive’ with ‘unique’ with ‘real’. When we fully assume the precarious andhegemonic nature of the political (here, within the legal) we realize that gains must beconstantly defended and justified just as much as losses must serve as impetus to furtherlobbying and persuasive action. The very real frustration experienced in losing recentlyfought-for gains should not tempt us to reach for ‘substantive’ equality without debate.What is this if not the surfacing of the totalitarian temptation? Instead we must persist inbeing creative in our progressive strategizing.Chapter Three: The Law and Politics of Rights and Identities 149Do Rights Reproduce the Form of the Capitalist Mode of Production?We come, now, to the final criticism of the rights discourse that we will beexamining. The challenge to the rights discourse from this perspective asserts that thenotion of rights is itself inseparable from, and inextricably linked to, the mode ofproduction-- here, the capitalist mode of production. Thus, no matter how good theintentions of a rights user are, their use will only further perpetrate the deep-seated evilsof capitalism, namely class oppression and increased commodification.2°“In short, thepolitics of the new social movements may be channeling struggles without challengingthe deeper relations of subordination.”21 Thus, it is suggested that the tendency of rightstoward abstraction “is characteristic of legal methodology... [and] in fact part of the verystructure of liberal law under capitalism.”22 Others more visibly essentialist suggest that“ultimately... the realization of meaningful civil liberties and a meaningful rule of lawdepends on the overthrow of capitalist economic relations and the establishment of ademocratic socialist mode ofproduction.”23The postulation of a link between the mode of production24and forms of politicsand law has been in common currency since, most prominently, the time of Marx. In histerminology, the base (the economic system) instrumentally (or structurally) determinesthe superstructure (ideas, beliefs, modes of thought, etc.).23 Thus, with the replacementof use-value by exchange-value, there followed a transformation in the form of thoughtfrom the concrete to the abstract, content to form., and quality to quantity -- a process,Marx suggests, which inevitably leads to a ‘fetishism of commodities’. It is thistransformation that has permeated the whole of the superstructure. The law, therefore, aspart of that superstructure, has inevitably reflected this transformation. So, as has beenmost forcefully argued by Pashukanis, the analogous and paradigmatic form in the law isnone other than the ‘fetishism of rights’. Integral to such a conception of rights are theideas of individualism (contracts are entered into voluntarily by autonomous and self-Chapter Three: The Law and Politics of Rights and Identities 150determining agents), universality and abstraction (all legal subjects have the legal-- notnecessarily real -- capacity to own property), indeterminacy (rights can also serve toentrench the dominant interests), and formal equality (legal subjects are to be treated asequal, despite unequal defacto circumstances).27The question, which is of central importance to this section, then becomes to whatextent can rights (and accompanying forms), whether in the political or legal arenas,assume a sufficiently autonomous life so that their existence and use do not necessarilyor, under certain conditions, even probably, rely on or support a mode of production andits associated ‘evil’ ideologies and practices.28 Ultimately, can they be used to subvertthose associated evils, or even the very mode of production to which they arguably owetheir life to?As we have afready discussed the concept of formal equality, we will nowdescribe several other concepts which are typically offered as debilitating forms of thecapitalist mode of production. It will, perhaps, be helpful to think of several questions aswe read on. Is it possible, for example, to “establish on the one hand the mechanismswhereby the legal [or political] system operates as a specifically capitalist structure, andon the other hand those features of legal relations within (but not of) capitalism which arenot so inscribed with its logic and hence potentially transferable to alternative socialsystems”29? Can the legal system operate against itself, in the sense that internalinconsistencies and contradictions (of forms and ideologies) can be highlighted andexploited to create the space necessary for counter-hegemonic dereifications andreifications?30 To what extent can the ideologies oflaw3land the ideologies in law32 bedeconstructed, diffused, and demystified so as to escape the aura of inevitability thatparalyses us into inaction?3 Can rights be appropriated by a different discourse, and thusconceived differently and perhaps progressively? In other words, does the fact thathistorical events are overdetermined mean that the privileging of particular conditions(here the mode of production) in the context of an explanation is nothing more than aChapter Three: The Law and Politics of Rights and Identities 151hegemonic articulation, and thus subject to a competing or subversive articulation?Indeed, are rights as conceived by a liberal ideology, to some extent already appropriatedby subversive discourses? And how does one deal with the fact that a hegemonicarticulation may itself change the configuration of past events so as to convert certainevents’ status into ones with an aura of centrality and inevitability?Individualism:. Alienating or Not?What does it mean to say that rights are individualistic? What does it mean to saythat individualism fosters a sense of alienation? In what sense is this bad? In what senseis this good? These are the kinds of questions we will try to address by responding to thefollowing sample of the debate over the individualistic nature of rights.Let us look at a typical account of rights as debilitatingly individualistic andalienating. Such an account usually begins by pointing to its close affinity with thenotion of negative liberty, ie., “the right to do and perform anything that does not harmothers.”34 In the words of Marx, “the political liberators reduce citizenship, the politicalcommunity, to a mere means for preserving these so-called rights of man [sic] and that thecitizen thus is proclaimed to be the servant of the egoistic man [sic].”35It is this ‘egoistic man’, in his legal rights-bearer incarnation, that Gabel describesas being caught in the rather unfortunate double-bind situation of on the one handdenying himself the recognition of his need to experience a substantive connectionbetween himself and others by subscribing to an alienating individualistic form of rights;and o