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Introduction

A colleague of ours was giving a paper on the vexed problem of veiling among contemporary Islamic women and Western feminist responses to it. From the audience, an American woman of South Asian descent challenged our colleague, a feminist Arab secularist, for intervening in a domain properly belonging to religious Arab women: "What right have you to be saying such things?" "Right?" our colleague responded. "I have no right - I have a critique!"

This collection emerges from conversations enjoyed and endured by the coeditors as we explored the intersection of certain progressive political projects we care about and certain intellectual undertakings we were pursuing. We were both veterans of various feminist, antiracist, multicultural, sexual liberationist, and antihomophobic efforts. We were both engaged, in different ways, in teaching, thinking, and writing about nationalism. We were both convinced that contemporary traditions of social, political, and literary theory offer rich hypotheses that can be vital ways of testing our own political situations and desires. And we shared an absorption with the many ways that the political projects in which we are involved depicted various elements in the legal system as "the problem" to which they address themselves and framed strategies for social change - indeed, models sometimes of justice itself - that turned in some crucial way on law reform.

Our intellectual and political concerns were thickly intertwined: if we could help identify effective ways to loosen the grip of gender strictures at work, in sex, at home; beat back even by an inch the effects of racism on the educational environments in which we work and social environments in which we live; slow down even by a moment the ranking and reranking of new immigrant groups in an ever more elaborate racial paradigm; pry apart even by a millimeter sexual shame from sexual desire; revive even slightly a practical critical recognition of the way a capitalist political economy shapes the parameters of freedom and equality in our time - we would think we'd really accomplished something.

But we were increasingly frustrated with ourselves and with the intellectual and political environment we were operating in. It seemed to us less and less an environment in which the question of what the left should be "for" and what kinds of concrete projects could embody and activate those visions was eagerly asked and openly debated. It also seemed to us less and less an environment in which left-allied critical assessments of any putatively progressive political or legal project were welcome. We reviewed, in this regard, all the times that we had let the following sentences - uttered by students, embedded in the work of valued colleagues, lobbed at academic progressives from allies "in the trenches" - slow down our thinking and persuade us to mince words:

- My injury is real; you are just theorizing.

- Why, just now, when women (blacks, Latinos, homosexuals) are finally gaining subjectivity, must we engage in a critique of the subject?

- Writing that's difficult to understand is elitist (and hence bad).

- Writing that's difficult to understand can't be politically effective; anyone who teaches, uses, or produces writing that's difficult to understand must not care about politically inflicted suffering.

- Difficult writing can't be understood by the masses, so it can't possibly be useful to political mobilization.

- Postmodern social and critical theory is an indulgence of "tenured radicals" and has nothing to say about how power really works.

- What can all these abstractions do for a woman living in a fifth-floor cold water walkup?

- It's easy to criticize; what do you have to offer that's better?

- You couldn't possibly understand, not being [fill in here the name of any congealed, subordinated identity], and therefore lack authority to speak about the needs of people bearing that identity.

- You couldn't possibly understand, not having had the experience of [fill in here the name of any politically inflicted suffering], and therefore lack authority to speak about how it feels or how to stop it.

- The dignity of my group depends on [fill in the name of any law reform effort undertaken to address group-based stigma]; questioning the premises of that law reform effort reinflicts the stigma.

- The safety and survival of my group depend on [fill in the name of any law reform effort undertaken to protect a subordinated group]; questioning the premises of that law reform effort endorses our subordination.

- Questioning the premises of [fill in the name of any law reform effort currently understood to be "left"] gives aid and comfort to "the right."

[Then pick one of the following normative denunciations:]

The questioner is naïve.

The questioner is covertly, perhaps subconsciously, on "the right."

Avoiding co-optation by "the right" is categorically, or perhaps merely obviously , more important than reexamining the current commitments or project of "the left."

- Questioning the premises of [fill in the name of any rights-claiming effort currently understood to be "left"] is pointless; after all, we are talking here about human, or civil, or fundamental rights . QED.

- Your critique is so far removed from the language of the courtroom or everyday politics that it can't possibly be of practical value.

- Your critique is a luxury we can't afford; what we need right now is solidarity and consensus, not deconstruction.

- I'm offended.

- It's unacceptable.

We were dismayed to find ourselves ceding to these precepts not only because the "common sense" they represented was, upon close examination, almost always intellectually incoherent, but because their invocation in political and intellectual debate bestowed sacred cow status on certain law reform projects whose problematics worried us and which we yearned to understand. Affirmative action, sex harassment, the immersion of the ideal of equality in rights claiming, the displacement of distributive concerns by equality, the central place given to injured subjectivity and ideas of personal dignity in hate speech efforts and sexual liberation projects, the merger of racial justice into the language of essentialized identity and cultural preservation, the deployment of identity-based claims in the form of rights supposedly trumping all competing normative claims: Would these various legal undertakings seem liberatory - would they seem left - if the prohibitive dicta listed above were suspended and the acid of critical theory had a chance to work on them?

And so we set out to write, and to find, work that upended or ignored these precepts and that illuminated what could happen in our understanding of what the left could do with (or without) the law if their prohibitive power were suspended. The essays collected here reflect what we discovered: the state of the art of "left internal critique" focused on law reform. With this volume, we are attempting to reinvigorate and revalue the tradition of critique as vital to what the intellectual left has to offer, and, perhaps, to the very existence and health of the left itself. The book is thus intended as a case for the worth of critique on interconstitutive intellectual, political, and hedonic grounds.

We have gathered essays that examine the tensions between state-centered left legalism, on the one hand, and left theoretical critiques of the state, the law, and identity, on the other. Together, they function as exercises in left critique of certain contemporary left legal and political conventions. They do not advocate a unified political position on the value of left legal reform, nor do they agree about appropriate strategies for such reform. Instead, these essays vary widely - and the differences arise just as much from the specific "real world" problem to which each author is attending as from differences in the kind of justice-seeking project by which each author is guided. Yet, in their different ways, each asks: What are the limits, paradoxes, and perils attending contemporary practices of left legalism? What can we learn from studying these effects? What politics might be refashioned from the critiques?

Between concern with being politically "relevant," usually understood as being "practical," and concern with holding the fort (and hence not criticizing what the fort holds), critique has come to be cast increasingly as an unaffordable luxury, or as simply to one side of the action of political life. We propose instead that theoretical critique is a crucial practice for understanding how legalism can transform and attenuate the values and aims that leftists bring to it. How might left legalism convert into liberal legalism? How or when does legalism sap the political substance from a highly politicized issue or event? How do desires to transform identity unwittingly become projects that instantiate identity? When do strategies of redress become techniques of domination? We do not argue, nor do any of our authors, that legalism or liberalism is irredeemable or that left projects oriented to the state, and more specifically to law, can or should be foresworn. But we do believe that the left's current absorption with legal strategies means that liberal legalism persistently threatens to defang the left we want to inhabit, saturating it with anti-intellectualism, limiting its normative aspirations, turning its attention away from the regulatory norms it ought to be upending, and hammering its swords into boomerangs.

The Left/Liberal Distinction

What is the difference between left legalism and liberal legalism? These, of course, are terms without fixed meaning and, in part, the essays collected here plumb, negotiate, and even aim to invent anew their possible meanings and relations. Indeed, it would be hubristic as well as contrary to our political impulses to offer, for example, a definitive account of what counts as "the left" here. It is not possible to circumscribe that project at this point in history, nor would we want to engage in the kind of gatekeeping and policing that such a definition would entail. However, given our desire to drive a distinction between liberal legalism and left critique, indeed, between liberal and left legalism, neither can we forgo some venture into this terrain. So we offer the following as partial, provisional, and contestable-a conversational gambit rather than a definitive account.

What has conventionally distinguished the left from liberalism is not merely a matter of attitude or precept, but turns on the objects of affirmation and negation that each takes as central to justice. Attempting to map this distinction returns us to the classical meaning of liberalism-not a political position opposite to conservatism but a political order that replaces Tudor monarchy rooted in explicit class privilege with modern democratic constitutionalism rooted in abstract individualism. It is the liberal political order, and not simply an ideological position, that leftists conventionally challenge as inadequate to the production of substantive freedom and equality. Thus leftists often refer to liberalism without making distinctions between "liberals" and "conservatives" or between "liberals" and "communitarians" - all of whom, in a left analysis, inhabit comfortably the liberalism that the analysis seeks to question. However, in what follows, we also try to mark a few of the ideological differences within liberal formulations of justice; to that end, we distinguish between a liberal political order and a "liberal" political position by putting the latter in quotation marks.

Liberalism presumes the legitimacy of a state in which we are guaranteed equality before the law and in which individual liberty is paramount. It presumes as well a rough equation of freedom with individual rights. Liberal justice is an order in which this equality and this freedom are maximized to the point where they would begin to cancel one another. Within the liberal order, "free market" and "libertarian" conservatives usually draw the line closer to freedom (as distinct from "moral conservatives," who argue for strong limits on both equality and freedom), and "liberals" usually draw it closer to equality (and thus differ from "civil libertarians," whose primary desideratum is liberty). But these are differences of degree; almost no one in contemporary political life disaffirms one in favor of the other.

Law and the state are ordinarily figured as technically neutral within liberalism, even if "liberals" recognize that these institutions have been historically beholden to socially dominant powers, and even if "conservatives" sometimes regard the state as an inappropriate intruder into the domain of personal and economic freedom. The challenge for "liberal" reformers is to wield the state on behalf of those on the lower end of various social hierarchies or at the losing end of various maldistributions; "conservatives" generally aim to wield it for purposes of consolidating the moral and political order, or to release putatively autonomous individuals or market forces from inappropriate constraints.

Left analysis takes its bearings from what it conceives the liberal formulation of justice to elide, as well as from a different vision of justice itself. Thus, a left political orientation begins with a critique-not necessarily a rejection-of liberalism itself as well as an explicit focus on the social powers producing and stratifying subjects that liberalism largely ignores. Of these, capital, male dominance, racial formations, and regimes of sexuality have been of persistent importance, but there are, of course, others. Liberalism's dearest treasure, equality before the law, though preferred to inequality before the law, is regarded by leftists as too abstract to produce substantive egalitarianism without transformation of the social powers that produce inequality. Equal access to rights and opportunities is seen as a false bouquet to those who, consequent to a range of possible constraints issuing from these social powers, cannot make equal use of them. Rights within liberalism are thus conceived as equal only at the formal level, and in concrete terms are seen as differentially deployed by differently situated subjects in a complexly stratified society. To the extent that rights themselves are powers, this differential itself constitutes both an index and a reinforcement of social inequality. This does not mean that leftists necessarily oppose rights, but rather that they are wary of liberalism's generally more sanguine equations between rights and liberty, equal rights and equality.

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Excerpted from Left Legalism / Left Critique Copyright © 2002 by Duke University Press
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