In this article the author revisits Carol Smart’s 1989 publication Feminism and the power of law. She engages with Smart’s main claims by way of a number of other thinkers. Following Marianne Constable’s description of contemporary American legal thought as socio-legal, the author tentatively considers if it could be argued that some strains in contemporary legal feminism that adopted a sociological method resulted in a similar absence of justice that concerns Constable. Smart’s caution against the development of a feminist jurisprudence (...) is critically analysed with the benefit of hindsight. Drawing on Deleuze and Guattari, Foucault and Goodrich, the author tentatively considers the becoming of a feminist jurisprudence as a minor jurisprudence. What we most lack is a belief in the world, we’ve quite lost the world, it’s been taken from us. (Deleuze 1995, 176)Sociology takes social creation to be the whole of what is and will be. (Constable 1994a, 589). (shrink)

Recent case law on sexual violence crimes heard before the ad hoc international criminal tribunals and courts, that interpret them in connection with ethnic conflict, raises the question of which acts can be defined as sexual violence. The International Criminal Court, in the situation of Kenya, does not regard acts of forced nudity, forcible circumcision and penile amputation as sexual violence when they are motivated by ethnic prejudice and intended to demonstrate the cultural superiority of one tribe over another. The (...) Court argues that not every act of violence that targets parts of the body commonly associated with sexuality should be considered an act of sexual violence. This recent interpretation of what counts as sexual violence provides another example of the complicity of international criminal law institutions in the ongoing construction process of female subordination. The ICC, in the Kenya situation, implicitly confirms the mutilation of female agency by interpreting penile amputation as a kind of power game between males, and by instrumentalizing the male sexual organ as an indicator of masculinity and manhood. (shrink)

Globalization processes imply the self-deconstruction of the hierarchy of legal norms. Thus, legal pluralism is no longer only an issue for legal sociology, but becomes a challenge for legal practice itself. Traditionally, rule making by `private regimes' has been subjugated under the hierarchical frame of the national constitution. When this frame breaks, then the new frame of legal institutions can only be heterarchical. The origin of global non-state law as a sequence of recursive legal operations is an `as if', not (...) only a founding myth as a self-observation of law, rather the legal fiction of concrete past operations. This fiction, however, depends on social conditions outside legal institutions, on a historical configuration in which it is sufficiently plausible to assume that in earlier times, too, legal rules were applied. (shrink)

This paper re-examines debates surrounding Irigaray’s ‘essentialism’, arguing that these debates have generated a widespread assumption that realist essentialism is philosophically untenable and that Irigaray must therefore be read as a non-realist, merely ‘political’, essentialist. I suggest that this assumption is unhelpful, as Irigaray’s work shows increasing commitment to a realist form of essentialism. Moreover, I argue that political essentialism is internally unstable because it aims to revalue femininity and the body as symbolized, thereby reinforcing the traditional conceptual hierarchy of (...) the symbolic over the corporeal. I reinterpret Irigaray’s own work as moving away from her earlier political essentialist project of revaluing symbolic femininity, towards the realism of her recent thought, which urges us to revalue and transfigure real, sexually differentiated, bodies by pursuing their cultural expression and enhancement. I aim to show that Irigaray’s recent work is philosophically coherent and sophisticated, and that it opens up the possibility of a radical and transformative kind of realist essentialism. (shrink)

This article argues—against the present compatibilist orthodoxy in the philosophy of criminal law—for the contemporary relevance of a kind of critique of criminal law known as the ‘determinist challenge’, through a reconstruction of Theodor Adorno’s thought on freedom and determinism. The article begins by considering traditional forms of the determinist challenge, which expressed a widespread intuition that it is irrational or inappropriate for the criminal law to hold people responsible for actions that are causally determined by social and psychological forces (...) in such a way that they cannot be said to have acted freely. Yet as traditionally presented it was possible for its opponents to interpret this challenge as an incompatibilist position within the traditional free will/determinism debate, and to present compatibilist arguments against it—in particular, that the determinist challenge is unmotivated and has implausible implications. It is argued that these compatibilist objections hold only on a certain interpretation of the determinist challenge, but that this interpretation is not the only one available. Adorno’s distinctive position on freedom and determinism is presented as an alternative version of the challenge, which cannot be assimilated to the terms of the traditional compatibilist/incompatibilist disputes. This novel, ‘metacritical’ version of the determinist challenge is essentially a social–historical, not metaphysical, thesis about the moral significance of the freedom-undermining effects of modern social forms. As such, it is argued, it is invulnerable to the usual compatibilist objections, and presents a serious challenge to our criminal legal institutions. (shrink)

Much contemporary work on agency offers only a partial account because it remains within an essentially negative understanding of subject formation. This essay examines the work of Judith Butler and Drucilla Cornell and argues that the negative paradigm needs to be supplemented by a more generative theoretical framework, if feminists are to develop a fuller account of agency. In the negative paradigm, the subject is understood in passive terms as an effect of discursive structures. This tends to overlook ideas of (...) self-interpretation that introduce more active dimensions into understandings of subject formation and agency. Furthermore, an unqualified notion of indeterminacy does not unpick the imbrication of relations of time and power that overdetermine agency. Ultimately, structural accounts of subject formation need to be integrated more closely with hermeneutic perspectives of the self in order to understand better the complexities of agency in a post-traditional society. (shrink)

The central argument of this article is twofold. First, contemporary feminist gender theory, particularly as it has been used by feminist sociologists in recent years, has been misinterpreted by sexual difference theory in ways that may prevent scholars from fully appreciating current feminist work in the social sciences. Second, gender theory and sexual difference theory rely on different conceptualizations of fundamental concepts in feminist theory, including notions of “gender,”“sexuality,” and “symbolic.” An analysis of three key texts that critique the turn (...) to “gender” in favor of an allegorical notion of “sexual difference” suggests that feminist gender theory is a more useful perspective for feminist theory and research. The article concludes that gender theory allows feminist scholars to ask a wider range of empirical questions that are more readily of use for political action than does a sexual difference paradigm. (shrink)

This article traces recent developments in European social theory and psychoanalysis on the theory of the human subject. Critically examining the recent psychoanalytic departures of Julia Kristeva and Jean Laplanche on the status of primary repression as a condition for the constitution of subjectivity, an analysis is presented of the state of the subject in its unconscious relational world. The article suggests ways in which the analyses set out by Kristeva and Laplanche can be further refined and developed, partly through (...) a reconsideration of the intertwining of unconscious representation and repression as developed in the writings of Cornelius Castoriadis, Thomas Ogden and others. For existing psychoanalytical accounts the article suggests we should substitute the concept of ‘rolling identification’, the psychical basis of the shift from self-referential representational activity to an elementary form of inter-subjectivity. Rolling identifications are defined as a representational flux that permits human subjects to create a relation to the self-as-object and pre-object relations. Such primal identification, the article suggests, operates through a ‘representational wrapping of self and others’. The article concludes with a consideration of the cultural significance of primary repression, and the politicization of identification. (shrink)

This paper engages with debates around transformations in the production and circulation of images and the changes in modes of perception that these offer. Paul Virilio has argued that technological developments have produced a shift in the site of meaning‐production from the material reference space of the image to the time of visual contact by the viewer. I consider what significance these temporalities have in relation to social difference, and I develop debates around the performative to consider how the viewer (...) is constituted in visual performativity. This focus on time and performativity opens up questions of how vision may constitute the agency, intention and responsibility of the viewer. Drawing on an example of visual irony in advertising, I explore how the temporal suspension of meanings allows for a suspension of the terms of intent and responsibility. This visual performative accesses and reworks the terms of social difference and privilege in what I have called ‘retroactive intentionality’. (shrink)

: In this essay, Cornell first invokes the concept of 'imaginary domain' to challenge the legal legitimacy of heterosexism in any form. She then claims that the imposition of heterosexism on the imaginary is a trauma whose severity can be grasped only with the help of psychoanalysis. Second, she argues that we cannot understand or undermine the power of heterosexist ideas without an alternative ethic of love. In beginning to think about a love that would necessarily pit itself against heterosexism, (...) Cornell draws on Jacques Derrida's metaphor of the lovance. (shrink)

In this essay, Cornell first invokes the concept of ‘imaginary domain’ to challenge the legal legitimacy of heterosexism in any form. She then claims that the imposition of heterosexism on the imaginary is a trauma whose severity can be grasped only with the help of psychoanalysis. Second, she argues that we cannot understand or undermine the power of heterosexist ideas without an alternative ethic of love. In beginning to think about a love that would necessarily pit itself against heterosexism, Cornell (...) draws on Jacques Derrida's metaphor of the lovance. (shrink)

In the 1980s extra-parliamentary social movements and critical theories of race, class, and gender added a new sociocultural understanding of justice—recognition—to the much older socioeconomic one. The best-known form of the struggle for recognition is the identity politics of disadvantaged groups. I argue that there is still another option to conceptualize their predicament, neglected in recent political philosophy, which understands exclusion not in terms of injustice, more particularly a lack of sociocultural recognition, but in terms of a lack of freedom. (...) I draw my inspiration from Hannah Arendt's model of political action. Arendt diagnoses exclusion not solely as a mode of injustice, but as a lack of participation and public freedom. Consequently, she advocates a struggle for participation, political equality, and freedom as a strategy for emancipation or empowerment. Arendt could help feminists see that collective empowerment is made possible not by a shared identity (the target of poststructuralist critics) but by common action in the service of a particular worldly issue or common end. In other words, feminists would do well to appreciate the revolutionary quality and heritage of the feminist movement better, that is, its character as a set of practices of freedom. (shrink)

The past twenty five years have seen an explosion of feminist writing on the philosophical canon, a development that has clear parallels in other disciplines like literature and art history. Since most of the writing is, in one way or another, critical of the tradition, a natural question to ask is: Why does the history of philosophy have importance for feminist philosophers? This question assumes that the history of philosophy is of importance for feminists, an assumption that is warranted by (...) the sheer volume of recent feminist writing on the canon. This entry explores the different ways that feminist philosophers are interacting with the Western philosophical tradition. (shrink)