IS SUBJECTIVITY POSSIBLE? THE POSTMODERN SUBJECT IN LEGAL
© James Boyle 1991(2)
62 U. Colo. L. Rev. 489 (1991)
Jurisprudence, in my judgment, need not vex itself about the "abysmal
depths of personality." It can assume that a man is a real indivisible
entity with body and soul; it need not busy itself with asking whether
a man be anything more than a phenomenon, or at best, merely a succession
of states of consciousness. It can take him as a reality and work with
him, as geometry works with points, lines and planes. John Chipman
The individual is not to be conceived as a sort of elementary nucleus, a primitive atom, a multiple and inert material on which power comes to fasten or against which it happens to strike, and in so doing crushes or subdues individuals. In fact, it is already one of the prime effects of power that certain bodies, certain gestures, certain discourses, certain desires come to be identified and constituted as individuals. The individual, that is, is not the vis-a-vis of power; it is I believe, one of its prime effects. Michel Foucault (1980)(4)
This article puts forward a thesis and then attempts to prove (or at
least to develop) that thesis in two related areas. The thesis is that
legal theory in general, and critical legal theory in particular, has concentrated
too much on critiques of objectivity, wrongly assuming that "subjectivity"
was an unproblematic term.(5) Subjectivity,
like mortality, has seemed not only attainable but inevitable. It is objectivity
which is presumed to be the problematic goal of our theories and our attempts
at doctrinal interpretation. This article reverses the focus, concentrating
on the construction of subjectivity in law and social theory.
In the first half of this article, I try to locate my discussion as
part of a larger methodological debate. I describe the tension in critical
theories between their "structuralist" and "subjectivist"
strands and discuss the impact on these theories of the intellectual moment
referred to, rather pretentiously, as the "death of the subject."
This part of the essay builds on the ideas I developed in an earlier work,(6)
and it may help the reader unfamiliar with critical theory to understand
the context of my discussion.
In the second half of the article, I turn to the topic mentioned in
my title. Having pointed out that critical theories focus mainly on the
impossibility of reaching "objectivity," I show that some of
the same critiques can be turned on the construction of "subjectivity"
as well. The parallelism is more than mere symmetry. Just as the concept
of objectivity can be used to armor decisions or social practices, so theoretical
results and ideological slant can be dictated by loading up the abstract
"subject" of a political or economic theory with a particular
set of drives, motivations, and ways of reasoning. Having given an example
of this process, I then turn to the legal "subject" around whom
the law revolves and try to develop a sketchy history of the changing qualities
which that subject has been believed to possess. I conclude that the ideas
associated with postmodernism are a useful framework for understanding
the subject in legal theory and in legal practice. In fact, bizarre as
it may seem, the law already incorporates a more postmodern view of the
subject than either economics or mainstream political theory.
THE PROBLEM OF METHOD
A. Structuralism and Subjectivism
Any discussion of method occurs in a context. The context for the discussion
of the subject put forward in this article is the theoretical project of
critical legal studies. Here is my best effort at conveying that context.
Most activities, social practices, or institutions have an attached set of implicit or explicit "justifications," which play an important role in the exercise of power. (As you will see below, I use "justification" in a deliberately fuzzy way, meaning to cover everything from the fetishism of the economic system to the functional justifications of the arms race, or classroom power, or the public/private split.)
The more one looks at these justifications, the more it appears that there are remarkable similarities between the most abstract (for example, the liberal theory of the state) and the most concrete (for example, workplace organizing, bosses' relationships with their subordinates, or everyday assumptions about ownership and control). This analogy between high theory and politics in daily life may be an overly hopeful attempt to justify our professional lives by providing an illusory link to political action, or it may be a genuine fusion of theory and emancipatory action.
This focus on justification and legitimation certainly fits well into
a number of intellectual traditions. The most obvious connection is to
the Sartrean critique of false necessity and bad faith. Actions that seem
both natural and neutral are, in fact, neither.
If we are to make anything of this critique we will need some mode of thinking that will allow us to recognize and transcend false necessity.(7) An example might be helpful. Taking labor law as an example, the substance of the theory would look something like this: Because of the way that we divide up the world it seems as though ownership and control are inextricably linked. Thus, we find it hard even to think about ways in which more humane, democratic, and participatory workplaces could be organized.(8) The boss is the boss. Looking at the very different social relationships that an owner has to a sweatshop and that I have to my apartment, we nevertheless choose to view them as metaphorically the same because each involves an abstraction called a "property right." Thus, a challenge to the boss' control of the workplace appears to be a challenge to my "ownership" of my own apartment.(9) But the appearance is a false one. In fact, since the legal realists, we have viewed "property" as a bundle of rights, which can be divided up and parcelled out differently in different social contexts. There is a very different relationship of ownership to control in the context of a commercial radio frequency, a public utility, a private university which receives federal grant money, and a private house. No one relationship can dictate what the others should be. We could decide that employees should have a right to representation on the board of the company or to free speech rights comparable to those they would possess in a public park. Thus, the apparent immutability of the workplace setting is an example of false necessity. We can, and perhaps should, do things very differently.(10)
This type of theory will have to rest on, but also to transcend, the
experience of those involved in the particular area of social life we are
looking at. It will involve phenomenologies of personal experience and
accounts of structural constraint. In the labor law example, certain experiences
will be seen as false and delusionary and others as true and emancipatory.
What is more, certain structures or patterns of thought will be identified
as the important or relevant ones. Who is to say that the apparent immutability
of the workplace comes from the objectification of "property rights,"
the anaesthetic grip of any status quo, the apathy of a public convinced
of its inability to effect national politics, or from the replacement of
the labor theory of value with the market theory of value? Which ideological
structure is the important one?
The two strands (personal experience and the structural critique of
ideology and false consciousness) will be in constant tension.(11)
Sometimes social reality will be presented as though it were created by
heroic, acting subjects able to make history with will and consciousness.
Sometimes it will seem that individual human beings are mere pawns in the
hands of some structure of power, class, gender, race, or ideology. This
tension between subject and structure will reappear at every level of a
theory. Does linguistic meaning come from subjective intention or from
frozen, external codes of signification? Does the feeling that a legal
rule "should" be interpreted a particular way come from our intuitions
about the "intent" of those who wrote it or from the structure
of legal consciousness? Are the individual experiences of workplace alienation
reducible to a structural marxist account of the political economy of oppression?
The mediating devices that are used to reduce this tension will simply
defer it.(12) For example, it might appear
that one could escape from these methodological problems by limiting oneself
to description and critique. "I can't tell you what the deep structure
of workplace oppression is, but I can tell you, as a matter of factual
description, that workers are deluded into thinking that value is inherent
in the objects they produce, instead of realizing that value comes only
from the worker's own labor." Yet if one claims merely to be criticizing
the pre-existing structural delusion of many individual subjects, one must
still show that X and not Y is the delusion. Think of the conflicting marxist,
feminist, liberal, and psychoanalytic explanations of workplace alienation.
Think of the arguments that construe the feminization of poverty as a result
of: a) "the delusion of women's rights," b) the social logic
of the corporate welfare-state, or c) the dominance of patriarchy and "male
There is no way to solve this problem--the "privileged" theory,
which claims to have science or biology on its side, merely produces an
oppositional form of false necessity, which is often even more murderous
than the entrenched form. (I make the customary cite to Stalinism.) But
this does not leave us bereft of possibilities. In fact, it ties in with
a vision of provisional, local political practice: everyday morality that
does not seek to erect the solution arrived at on Monday into a panacea
for the rest of the week. This local theory must acknowledge the tension
between subjectivist phenomenology and de- personalized structuralism--but
not in the hope of settling the perfect balance between the two. To acknowledge
the tension in this way, we need to understand the methods that
each strand offers us.
The structuralist theories (which generally did pretend to a certain
finality) have left us with a number of conceptual tools--tools that work,
under most of the self-referential definitions of "working" that
we could use. Their characteristic imprimatur is to claim that there is
some deep (and often pernicious) logic to the activities going on around
us. For example, structuralist anthropological methods apply, all too neatly,
to legal doctrine and social theory.(13)
They pull apart the rules and arguments with the kind of analytic power
that a Kingsfield might envy, but at the same time they cut through to
an underlying political vision, a set of deep metaphors that are woven
into law and social life. In fact, they seem to offer the totalizing method
of formalism without its conservative politics or its arid disciplinary
The subjectivist, phenomenological side of the story exalts the importance
of personal experience and the immediate moment.(14)
Its appeal springs from the fact that at the instant of closure, at the
moment when one apparently acquiesces in the collective fantasy that things
have to be this way, there is also a momentary backlash of rage, a trace
of indignation that can be uncovered by a phenomenological archaeology.
When you deferred to the boss (even though he was mistaken) or acted like
a lawyer would act (mentally tailoring your own intellectual straight-jacket),
there was a mental energy-release, a flash of cognitive dissonance that
could be pieced together with all the other times when things seemed to
be wrong. In fact, it is only by doing this "quilting" of dissonant
experiences that you find out what is going on and thus can act in good
rather than in bad faith.
There is more to this tension than merely the question of, "When
do you trust the participants' explanation of their own actions and when
do you rely on some structural explanation of delusion?" The most
interesting versions of structuralism and subjectivism are not merely in
tension; they violently contradict each other on an epistemological level.
The phenomenologists seem to endow their subjects with a measure of genuine,
unalienated subjectivity: a residual true consciousness that is always
threatening the closure imposed by dominant ideologies.(15)
Some notion of the subject is also fundamental to existentialism, to the
liberal political vision--in fact, to most of the discourses of the Enlightenment.
Yet, the modern gurus of structuralism and post-structuralism have claimed
that the "subject" is dead,(16)
that it was an aberration caused by a particular (and particularly unpleasant)
way of viewing the world. What happens to liberalism, to legal theory,
to existentialism--to all of the "humanist" disciplines if the
subject is indeed dead? What would that mean? What of the many left wing
critiques of the authority of "objectivity"? How are these affected
by the death of the subject? What is the subject anyway? Are the reports
of its death greatly exaggerated? Does it matter? The rest of this article
attempts to answer these questions in some convincing way. At the same
time, it orbits the subjectivist/structuralist tension I have just described
in an erratic and uneasy flight.
B. The Death of the Subject
Structuralism seems to be exactly the intellectual thread to link critical
legal theory, radical social thought, and the epistemological status of
subjects and objects. There are two obvious reasons for this. First, structuralist
anthropology seems to have been made for application to the legal system.
Where else can you find such a beautifully documented belief system, complete
with plausible binary oppositions and overt claims to rationality? Where
else can you find a discourse that really does look as though its users
are overtly fixated on denying or mediating the recurring contradictions
generated by those binary oppositions? (One can tell a convincing story
about legal doctrine that begins with the opposition between Self and Other
and builds all the way up to the prohibition of punitive damages in contract
law.) Second, in the imaginary intellectual history of the recent past,
which provides academics with many of their criteria for sophistication,
structuralism is defined by its critique of an epistemology based
on subject and object. In the next few paragraphs I want to lay out something
vaguely resembling this critique--all the usual disclaimers apply.
We have constructed our discourses around mythical subjects and objects.
The mystical high point of knowing is supposed to come when knowledge is
actually fused with the objects of its study, when it becomes "objective"
in the sense that there is no way to distinguish between the object and
the knowledge of the object. This is the dream of objective meaning (meaning
that exists without or before interpretation) or of objective
science (building on theory-free descriptions of fact).
Conceived of this way, rational discourse has a strange self-destructive
role--it is a method of bridging the gap between a subject and an object
that can only truly be said to have succeeded when it has annihilated itself,
leaving the self-revelatory object naked to the gaze of the subject. We
are all familiar with the critiques of this notion of knowledge--criticisms
of the notion of value-free history or objective social science, of a transcendent
and a-historical scientific method, of neutral legal principles, of objective
interpretation of words or texts or social situations. These critiques
occupy a strange position in the languages of power within our various
institutions-- accepted and avoided or ignored by the centrist sophisticates,
rejected and condemned by many of the practitioners of normal science.
Often, though by no means always, it has been the left that has developed
the critiques of objectivity--generally on the ground that "objectivity"
covered domination with the mantle of neutrality and inevitability. As
examples one might cite the anti-positivist work of the Frankfurt School
and of critical sociologists in general, the vague leftist tinge to the
work of most textual deconstruction workers, attacks, like those of Marcuse,
on ordinary language philosophy, and of course the critical legal studies
critiques of legal process theory, law and economics, and neutral legal
Most of these critical projects (with the possible exception of deconstruction
in literary criticism) have concentrated on the notion of objectivity--assuming,
as I pointed out earlier, that it was the problematic term in the subject-object
dichotomy. For example, many critical legal studies articles seem to assume
that, having failed to reach a privileged objective position, legal discourse
must inevitably slide back down into subjectivity and politics--the underprivileged
terms in the subject/object, politics/law opposition. Subjectivity and
politics are assumed to be meaningful terms; it is the other side of
the opposition that mainstream theorists aim for, so it is on those that
the critique is mounted. One would no more spend one's time wondering about
whether subjectivity was possible or conceivable than one would spend one's
time wondering whether mortality was possible--the objectivity and
immortality sides of the distinctions are the sexy ones; the others are
just residual categories. Is this assumption justified? Let us take a closer
look at the notion of subjectivity.
The structuralist story goes something like this: In our collective
epistemological fantasies a presuppositionless, ageless, classless, raceless,
sexless knower sits, arachnidean, in the center of the web of knowledge
that constitutes the discourse. When Foucault proclaimed the "death
of man," it seems to me that it was this "person" to whom
he was referring and this mode of knowing that was supposed to die. "From
the beginning of this century, psychoanalytic, linguistic, and ethnographic
research has ousted the subject from the forms of his speech, from the
rules of his actions, and from the systems of his mythical discourses."(20)
If one takes the approach suggested by the quotation above, then structures
of thought come to be seen as more than the coding and decoding mechanisms
through which a subject views or represents an object. Drawing on the modernist
insight that a pure "subject-domain" or a pure "object-domain"
is literally inconceivable, we can uncouple both ends of the classical
epistemology of truth.
If all knowledge is socially located, then the subject has to be thought
of as an actual person, who is part of a speech-community, a particular
society, an historical period, a professional discourse, and so on. At
the same time an object can never be perceived, described, or thought about,
except within a pre-existing interpretive construct. In other words,
the notions of subject and object are every bit as "metaphysical"
(in the derogatory sense in which that word is now used) as the Platonic
forms. Uncoupled from subjects at the perceiving end, and objects at the
end perceived, truth can only be seen as the matrix of social power that
constitutes the reality in between. But one cannot say "in
between," since the structuralist epistemology seems to reject the
notion of subjects or objects altogether. Both subject and object have
been inducted into the notion of structure--there is only structure, thinking
itself through, occasionally relying on the metaphors of subject and object.
This is the central line of the structuralist critique, a line that
bears a suspicious resemblance to the free will/determinism debate. In
this vision individuals do not have consciousness, as such; they merely
work out the progressions and glissades of whatever structure they
are determined, defined, and constituted by, be it material, linguistic,
or cosmological. If both subject and object have disappeared into the structure,
it seems bizarre that we would go on theorizing in subject/object terms.
"Subjectivity" becomes just as much of a construct as "objectivity,"
so that we could use the same tools to show that it is impossible for law
and science to be "subjective" as we had just used to show that
they could not be "objective." The theories, the practitioners,
the "world" to which they refer, our "own" approaches
to these discourses--everything is revealed to be part of a complicated
set of overlapping structures, or so say the structuralists. At the same
time the "subject" at the center of our political theories falls
apart. This is not just the demise of the rights-holding subject in the
liberal world of formal equality. The structuralist story is equally hard
on the unalienated true- consciousness to whom we dedicate our critiques
of false necessity. It seems as though we can no longer appeal to the real
self hidden under oppressive layers of work and sex roles. The real self
has suffered the fate of Southern California--there is no "there,"
there. "Subjectivity was not waiting for philosophers . . . . They
constructed it, and in more than one way. And what they have done must
perhaps be undone."(21)
This leaves us with some rather large problems:
** How do we even manage to think in a world in which both subjectivity
and the object-domain have disappeared into the awful mushiness of a structure?
** More specifically, how can we theorize or act politically, given
that many of the values of the "party of humanity" come from
a humanistic vision of the acting subject? Luckily, these aren't our only
problems. I say "luckily" because the other questions seem to
cut exactly the opposite way. They raise the issue of whether any of this
makes any sense, whether it is right.
The first point is a basic one. Who says we should look at things this
way? Post-structuralists and post-modernists spend a lot of time talking
about the death, the erosion of the subject. They say that subject and
object are fantasies. But they talk as though they were real fantasies,
not merely metaphors by which social beings first choose and then emphasize
certain aspects of experience. Subject and object are not out there waiting
for us to discover. (We cannot privilege the structural side of our critique
merely by insisting that it is immanent). An example might help to clarify
the point. We can choose to see cubism and positivism as the same
(since they both claim to focus on a truer layer of reality that lies beneath
surface chimera). Or we can choose to see them as different, because
one derives its authority from the transcendental subjectivity of the artist's
vision and the other from the verifiable objectivity of science. Similarly,
we can choose to see every discourse as being constituted around
a subject/object division. Or we can choose to privilege some other metaphorical
representation of the epistemology of the discourse, say, by focusing on
the role of authoritative communities in validating the method. This is
a move which has frequently been made in all of the academic discourses.
("Science is not an objective method of representing reality--it is
that which is acquiesced to by the micro-community of scientists working
in a particular area of research." "Law is not Langdellian science,
it is what judges say it is.")(22)
The second problem is one that besets any powerful criticism. Does the
critique undermine itself? Can't we undermine the structuralist story in
exactly the same way that it undermined the idea of subject and object?
Both subject and object seem to collapse into the notion of structure,
but unless we are going to end up doing solipsistic forestry, we have to
imagine a set of minds, material processes, or patterns of culture which
create the structure, as well as an analyst to observe it. In other words,
both stories collapse into each other. If you start with subject and object,
someone can point out to you that there is no such thing as a pure object-domain,
no world of vacuumpacked facts uncontaminated by the interpretive structure
of observers, and that the idea of a "subject" presupposes a
vast, contingent mental structure. But if you start with a world of structures,
the opposite will happen. There must be subjects to be determined by structures
and objects to be filtered, processed, and re-presented. You can pick your
jargon to describe all of this-- an antinomy of epistemologies,(23)
dangerous supplementarity large,(24) or
whatever--anyway, they contradict each other and yet rely on each other.
The third problem is more mundane. Which structure is it that is supposed
to be swallowing the subject? It is not that it is difficult to reduce
subjectivity and objectivity to the workings of some implacable structure.
It is that there are far too many structures, each of which purports
to explain everything. Look at Althusserian marxism,(25)
feminism in the style of Chodorow or Dinerstein,(26)
and Levi-Straussian anthropology.(27) Each
of them describes a structure that constitutes both the subject and the
object. I cannot even conceive of "myself," nor does "the
world" exist except within:
i. the structure of overlapping material and ideological striations
and endless feedback loops which appear to be necessary to maintain marxism's
claim to be "true science;"
ii. the mental structures, produced by mother-monopolized childrearing,
which lead me to deny my feelings of dependency by objectifying both the
material world and other people, seeing them as "things" put
there for my own pleasure;
iii. the universal binary structures of differentiation, and thus of
meaning, which order my world for me and which can be discovered within
the pacifiers that work out conflicts between cosmology and real life through
the algebra of myth.
All are convincing (some of the time). All seem to work (some of the
time). All claim to be the structure (all of the time). Into which
of these are we to dissolve subject and object?
In the first part of this article, I have tried to explain some of the
problems that the subject poses to critical theory. Building on my earlier
work, I claimed that all critical theories could usefully be understood
as being organized around a tension between a subjectivist and a structuralist
strand. Does meaning come from the intention of an acting subject or the
frozen codes of meaning encoded in some social structure? Is human agency
possible or are we determined by external structures--whether material
or ideological? Are judicial decisions "just the judge's subjective
values" or are they a mere resultant of a doctrinal structure produced
by some fundamental contradiction? Increasingly, the tendency in modern
thought has been to collapse the subject into the structural side of the
story. The Foucault and Merleau-Ponty quotes are good examples. Is the
subject is dead?
This question is not an idle one. The world of subject and object seems
vital to most of the theory that we work with, whether it is a critique
of objectivity or a phenomenology of the alienated subject. If we wanted
a master metaphysic that was going to say something definitive about subjects
and objects, then structuralism's story about the death of the subject
and the illusion of the object seems to fit. This story has fairly radical
consequences for our theorizing: denying the reality of subjectivity as
well as objectivity, undermining a large part of the tradition of "the
party of humanity" and thus putting the "true self," to
whom we direct our critiques of false necessity, in a rather tenuous position.
But there are at least three problems in all of this. There are too many
structures, all of which claim to be correct. The structuralist epistemology
and the subject/object epistemology depend on each other and yet deny each
other. And, perhaps most interestingly, the structuralist critiques portray
the epistemology of subject and object as a real fantasy, that is
to say, something which is already out there, which we need only criticize.
By doing so they ignore or minimize the act of choice necessary to pick
the metaphors of subject and object out of our intellectual and social
practices. In a most uncharacteristic fit of literalism for the people
who taught the deconstructionists that "every reading is a re-writing,"
they are claiming that the subject/object epistemology is just there--no
contingent act of interpretation is required to establish its presence.
What is to be done? I hope I have shown already that the answer is not
to return to the world of subject and object. Nor, for the reasons given
in the last paragraph, do I think that we could dispense with subject and
object, moving instead to some "new epistemology." After all,
the epistemology of subject-object and the epistemology of "structures
of thought" are antinomian; they simultaneously depend on and contradict
each other. In the second half of this paper I am going to claim that if
we actually focus on the subject in context and consider the subject as
it appears in legal theory, social theory, and economics, we will see that
there is a more profitable way to proceed--one guided by the ideas of postmodernism.
What then, does a postmodern analysis of the subject look like, and how
does it deal with the methodological problems I have outlined so far?
POST-MODERNISM AND SUBJECTIVITY
A. Modernism and Post-Modernism
The first response to a paper that connects postmodernism with law would
probably be disbelief. In fact, Pierre Schlag began his introduction to
this conference by saying that it was interesting to think of postmodernism
in the law because we had never even had modernism. I want to challenge
that statement and suggest that we indeed have had modernism and that one
of the reasons for the rise of critical legal studies was in an attempt
to get past some of the problems that the modernist project left.
What do I mean by modernism? One vision is that modernism, particularly
modernism in the arts, consists of a rage against the existing order.(28)
Modernism exalts the attack on form, the belief that an ability to go beyond,
to transcend, to break through, is the raison d'etre of art and
perhaps of life. In this sense, the idea of artistic progression is of
a series of revolts against the prior form of art. In fact, the whole idea
of a history of "forms" of painting--representational painting
being succeeded by impressionist painting, being succeeded by surrealism,
by cubism, and so on--is dependent on the idea that the new form establishes
itself precisely by its challenge to the tenets of the prior form. Hence,
the paradox that modernists are both obsessed and repelled by form. The
form inevitably cabins, limits, distorts, and freezes human experience.
It is, in one sense, a barrier to full human realization, but in another
sense a tragic necessity.(29) And so one
vision of modernism is that we must strive to go beyond form, or at least
beyond the last form.
This vision of "form" should be relatively familiar, because
it is in large part the idea that animated the early parts of the legal
realist movement.(30) Consider the paradigmatic
teaching method of the first year of law school. The student is presented
with a case or a hypothetical that seems to cry out for some sort of resolution.
The student's first response is to shoehorn the case into the doctrine--the
form--at hand. Then the professor, with varying degrees of sadism, proceeds
to explode first one, then another, then another part of the student's
formulation to show that the doctrine would lead to unjust results, be
too rigid or too flexible, be too policy-oriented or too formalist. It
would be strange if this endlessly repeated experience did not lead the
student to question the very idea of form. Yet this first-year experience
is only one of the thousands of artifacts which bear witness to the realist
The realists showed that the "form" of rights was different
than had previously been imagined(31) and
that the form of interpretive doctrinal reasoning tended to exclude considerations
of value or of social science data.(32)
They challenged the idea that the great formal or qualitative distinctions
in our society, such as that between public and private, could intelligibly
When it was originally mounted, the realist critique was mounted against
a heavily formalist discipline. It seemed, I think, that this critique
of form might open up some free space; we would free ourselves from some
of the Langdellian encrustations of the law, give ourselves a little more
room, and be more free to be flexible, policy-oriented lawyers.(34)
The modernists in architecture felt that once all the baroque ornamentation
of traditional architectural forms was stripped away, then the only determinant
of form would be function. Similarly, some of the realists believed that
if the "transcendental nonsense" that went along with the "form"
of legal analysis were removed, then we would gain access to the true functions
of each rule. But after this critique of the limiting qualities of form
comes a certain fear of the abyss.(35)
"Wait a minute--if we trash this, what is left? Doesn't this lead
to nihilism? Doesn't this even lead to fascism?" And just as the early
modernist artists were accused of fomenting fascism, of breaking down Western
civilization, of undermining the cultural forms that uphold all that is
good and just, so the legal realists were accused of exactly the same thing:
of breaking down the structure of society, of preparing the way for some
sort of awful anarchy or revolution.(36)
At that point, at least in law, you see a backing away from the abyss,
a return to various forms of reconstruction.(37)
So that is one reading, a similarity which one could draw between modernism
and legal realism. I am not claiming for a moment that it is an inevitable
How does postmodernism come in? One of the things that interests me
about postmodernism is that it suggests there is no "beyond."
There is no place outside of the forms, no art that could break free from
the restraints in which it is, for the moment, embedded. Instead, postmodernism
suggests that the best one could hope for is ironic juxtaposition. Modernism
attempted to move beyond the traditional "forms" of architecture
so that the design of the building was determined solely by its function,
becoming a simple geometric rectangle. In contrast, a piece of postmodernist
architecture might put Victorian ornamentation next to minarets and Ionic
columns. One of postmodernism's defining features is the juxtaposition
of styles which, although individually they might have coherence, seem
collectively to put each other into question. Merely by placing them side
by side we seem to say, "Here, look how this style embodies a particular
vision of a building and how it is challenged by the style next to it,
and by the style next to that."
For the moment, I want to leave that version of postmodernism on the
table. The notion is one of ironic juxtaposition. One relies on tradition,
but not merely to restate it. Instead, we recreate something out of the
shards and fragments of the past. Thus, we can do something useful--build
a building--but also challenge the settled nature of the very traditions
and forms upon which we relied. It is that double movement of creation
and simultaneous questioning that is the heart of the legal strategy I
mean to suggest here. In the final part of my paper, I will argue that
this is one fruitful way of seeing the kind of legal work that is now being
done, both in critical legal studies and by other people in the legal academy
and in legal practice. The progress of my argument will be as follows.
First, to justify my contention that "subjectivity" needs as
much attention as "objectivity," I will give some examples of
the way that the subject can be used to confer epistemological privilege
and social authority on a particular vision of the world. Second, I will
examine the recent history of the subject in American law. Third, I will
argue that post-modernism offers us some useful ways to understand and
even use this history.
B. Critical Legal Studies and Objectivity
In the first part of this paper I claimed, without substantiation, that
much critical legal theory is devoted to critiques of objectivity. Critical
legal studies work on law and economics, for example, takes arguments that
purport to be justified by objective legal economic analysis and then shows
that the economic models both depend on and deny the importance of wealth
distribution.(38) Thus, the facade of objectivity
is just that, a facade.
More famously, critical legal scholars have questioned the objectivity
of legal interpretation. In brief, their argument has been that any determinacy
in legal interpretation in fact depends on community expectations, visions
of what counts as a good legal argument, structures of legal consciousness
that restrict the availability of analogies, and so forth.(39)
Thus, determinacy is possible, although there is more free play than many
people are willing to admit. But determinacy can only be achieved by relying
on these community expectations and so forth--features of legal argument
which are marked precisely by the fact that they are deeply charged, highly
political, value- laden, and extremely socially contentious. Legal interpretation,
therefore, is anything but "objective" in the sense apparently
required by the liberal political vision.(40)
Critical legal scholars have also talked about the objectivity or perceived
objectivity of social forms. For example, most of American labor law has
assumed that the basic question is how to divide up a very small profit
margin between bosses and workers.(41)
If one assumes that this is the central issue, then the discourse of labor
law becomes a technical discussion of how potential conflict on that issue
should be managed, channeled, and administered. Again, critical legal historians
have argued that there is a false objectivity here. There are many other
issues that could be raised even within the current legal regime, including
workplace government, worker property rights in the workplace, and so forth.
All of these run far beyond the conventional, objectified image of the
domain of labor law and, for that reason, they are never likely to be addressed.
Finally, critical legal studies work has looked beyond objectivity to
objectification--the objectification of women,(42)
the objectification of texts,(43) the objectification
of institutions. All the critiques that I have identified so far have as
their goal the idea that these apparent "objectivities" are,
in fact, false. Things could be otherwise. And all of them focus on the
object side of the subject/object dichotomy. They are critiques of objectivity,
of objectification, of the apparent objectivity of social practices.
But, as I pointed out in the first section, there are few critiques
of subjectivity. This is strange, if you think about it, because it is
not obvious that the intellectual apparatus necessary in order to create
a subject is any less contentious than the intellectual apparatus necessary
to claim that you are being objective. For example, every day in a law
school classroom you hear someone saying, "It is just my subjective
viewpoint." That means, presumably, that they are claiming there is
a single "I," not many "I's," that they are neither
reducible to their race, their gender, nor their class. They do not dissolve
back into the culture which has animated them, the language which they
speak, or the various parts of their personality. They are not even constituted
by various roles they adopt. But is this true? Worse still, students tend
to come into law school as formalists, believing that the interpretation
of law is objective, only to decide after ten weeks that it is completely
subjective-- that the judge simply follows his or her "subjective
desires." The idea that these "desires" might be structured
by something a tad larger than the individual subject--structures of consciousness,
class attitudes, ideologies, and so on--simply drops out of the picture.
We are left with an image that if all these judges would stop "choosing
to be subjective," the problems would disappear.
If we are structured by a hundred cross-cutting determinants, if we
are an assemblage of conflicting personas, doesn't this challenge the notion
that there is a single "I," a single subject? Is not subjectivity,
then, as contentious as objectivity? And what might we do with that notion?
Let me sketch out a few potential lines of critique.
My first question is this: Are there uses of subjectivity rather than
objectivity in order to privilege, to armor, to give authority to particular
statements, particular theories, particular visions of society? I think
the answer is clearly "yes," and I will offer four examples to
prove my point.
A. The Subject and Political Theory -- Rawls
My first example is Rawls' theory of justice.(44) Rawls' argument depends on the possibility of describing an essential, stripped-down subject. By "stripped-down" I mean to suggest something like a Chevette. Take away all the other attributes of car-ness--the air conditioning, the turbocharger, the leather seats--and all you have got is your basic Chevette. Imagine a set of stripped-down, Chevette-like subjects behind a veil of ignorance. Supposing they are ignorant not only of who they are going to be, but what place they are going to occupy in a society which they designed--they do not know whether they are going to be a black woman or a white man; they do not know whether they are going to be rich or poor. Rawls says the society that those subjects would design is a society that embodies the principles of justice.
The subjects floating behind the veil of ignorance are supposed to be
little essences of rational subjectivity--the lowest common denominator,
the residue left when you have boiled away all social particularity. It
is this status as universal subjects that is supposed to give their musings
about normative matters such weight. (Note the paradox; pure subjectivity
has many of the privileged features of objectivity). But, as I am sure
many people have pointed out before me, Rawls' rational monads end up sounding
suspiciously like middle class white male American liberals. For example,
they decide in their kindly but materially self-interested way that it
is acceptable to have inequalities of wealth if those inequalities would
put the worst-off people in the society in a better position than they
would be in a more egalitarian society. Pareto must be with them behind
that veil of ignorance.
Notice how these subjects have, as it were, been tricked into structural
justice through individual ignorance. They do not know who they are, so
they think, "Better not have a society that really screws people of
color, because I might end up being one; better not have a society that's
incredibly hierarchical--I might be at the bottom." But at the same
time, they want a society with some level of prosperity in primary goods,
because they might not be at the bottom. The balances that they would strike,
the principles that they would choose to guide their conduct, make up Rawls'
theory of justice. Thus, he claims to have produced if not an objective,
then at least an inter-subjective theory, a theory which claims to be more
than just his political viewpoint.
To accomplish all of this, Rawls must take a number of things away from
his subjects. He says that he wants subjects that are motivated neither
by altruism nor envy.(45) It sounds as
if we have a pointer with three positions. The positive extreme is altruism.
The negative extreme is envy. But when the pointer is at rest, it comes
back to the neutral position--the one that is the natural or essential
position for the subject of a moral theory, and that position is neutrality
to the interests of others. Self-interest, after all, is seen as rational.(46)
Altruism, one must presume, is emotional. Envy, similarly, is emotional.
But surely one could imagine subjects, even stripped-down Chevettelike
subjects, who had as part of their own self-interest the idea that they
didn't want to live in an inegalitarian society. What if the stripped-down
subjects were designed by Kropotkin and Confucius, rather than by Mandeville,
Smith, and Pareto? These imaginary subjects do not prefer egalitarianism
because they care for other people. That would be altruism, which Rawls
wants to rule out of the question. Instead, they have the avoidance of
inegalitarian societies as part of their personal self- interest, in the
same way our rational subjects would prefer sunshine to rain or wealth
to poverty. Somehow Rawls means to tell us that it is a natural, neutral,
or essential part of the rational subject to want wealth and pleasure but
not equality.(47) That subject, of course,
would design a very different society and hence a very different theory
of justice than my selfishly egalitarian subject.
Now, this isn't even very much of a relativist move. One doesn't have
to resort to worlds in outer space or tribes in Papua-New Guinea. There
are many classical republicans who would have explained to Rawls that disparities
of wealth (even Pareto-justified ones) are fatal to the commonweal. But
Rawls does not seem to have a notion of commonweal, and his subjects can
only be trapped into a functional equivalent of altruism by information
deficiencies about where they are going to end up in the society they design--private
greed, public good.
Another way of putting the point would be to conduct the following thought
experiment. Two competing groups of stripped-down subjects sit behind veils
of ignorance. One group was designed by Rawls, the other by a radical republican.
They are offered a choice between two different sets of principles for
the distribution of primary goods. Under scheme A, the society is marked
by a considerable level of inequality. Nevertheless, the overall "wealth"
generated by the society is such that the poorest and most deprived citizen
under scheme A is slightly richer in terms of primary goods than the average
citizen under scheme B. Society B is an extremely egalitarian society with
only small disparities in distribution of primary goods. It has enough
resources to supply everyone with food, clothing, shelter--as well as some
of the less tangible criteria included in Rawls' list of primary goods--but
it will not be as wealthy as society A. Under this scenario, one can make
a fairly good argument that Rawls' subjects will choose society A and the
republican's subjects, society B. Being "rational," Rawls' subjects
see that--no matter who they are in the resulting society--scheme A will
make them better off in Rawlsian terms. The republican subjects would disagree.
Among their rational, selfish preferences (which include many of the same
preferences as Rawls' subjects) is a preference for egalitarian societies.
They believe that major disparities of wealth and power are subversive
of community bonds in a way that will make life less pleasant for them
personally--whoever they turn out to be. The likelihood of a marginal increase
in their holdings of primary goods would not be enough to compensate them
for the loss of the personal rewards of community. Exercising their rational
self-interest, the republicans choose society B. Rawls would claim that
the choice made by his subjects is correct because his subjects have the
necessary universal attributes. I disagree. Familiar attributes, yes. Universal
So the first criticism is that the subject cannot escape to a world
beyond particularity and relativism any more than knowledge can fuse with
the object. Attempts like Rawls' are only convincing because the values
smuggled into his subjects, such as love of material wealth and freedom
of action, are too familiar to understand. De-personalized subjects rely
on their supposed universality for their epistemological and rhetorical
utility. But a truly universal subject is, by definition, contentless.
Self-interest is an empty term, until you have defined what a self is and
the kind of things it is interested in.
B. The Subject and Political Theory--Hobbes
Now that I have given the description of Rawls' stripped-down, rational
subjects, it will be easier to present my second example of the authoritative
subject--Thomas Hobbes' theory of law and state.(48)
Where Rawls' subjects command our agreement because of their depersonalized
rationality, we must obey Hobbes' "artificial man, the commonwealth,"
because there is no objective rationality that stands above particular
conflicts, and thus we must put our trust in a determinate, authoritative
That Law can never be against Reason, our Lawyers are agreed; and that
not the Letter (that is, every construction of it,) but that which is according
to the Intention of the Legislator, is the Law. And it is true: but the
doubt is, of whose Reason it is, that shall be received for Law. It is
not meant of any private Reason; for then there would be as much contradiction
in the Lawes, as there is in the Schooles; nor yet, (as Sr. Ed. Coke makes
it,) an Artificiall perfection of Reason, gotten by long study, observation,
and experience, (as his was). For it is possible long study may encrease,
and confirm erroneous Sentences: and where men build on false grounds,
the more they build, the greater is the ruine: and of those that study,
and observe with equall time, and diligence, the reasons and resolutions
are and must remain discordant: and therefore it is not that Juris prudentia,
or wisedome of Subordinate Judges; but the Reason of this our Artificial
Man the Common-wealth, and his Command, that maketh Law. . . . The subordinate
Judge, ought to have regard to the reason, which moved his Soveraign to
make such Law, that his sentence be according thereunto; which then is
his Soveraigns Sentence; otherwise it is his own, and an unjust one.(49)
It is no wonder Hobbes' work has such a modern feel to it. In only a
few lines, Hobbes stakes out a position on one of the central jurisprudential
debates of our day. He finds objectivity to be impossible, and instead
plumps for a kind of privileged secular subjectivity. The Sovereign becomes
a "transcendental" subject, but only in the sense that the sovereign's
decision on some issue of interpretation is on a different, a higher level
of validity. Hobbes does this, not because the sovereign can claim a superior
insight into the moral universe, not because the purposes and ideas of
the legislator will always actually be clear or decipherable to the "subordinate
judge"--but because all laws need interpretation, and that interpretation
must be final and authoritative. Hobbes rejects the idea of self-revealing
texts, and he rejects the idea that a professional speech community can
acquire any meaningful degree of authoritative consistency. The "reason"
that drives the law is going to have to be that of the "artificial
man," the commonwealth. Legal interpretation will not, cannot, be
"objective," it must come from some unanswerably authoritative
Liberal political and legal philosophers have tried to edge away from
this conclusion. They try to make the authority of the interpretation look
as though it were "objective," as though the law came from within
the fetishized textual objects rather than from some authoritative Will.
But Hobbes, like Marx and Feuerbach, scorns the attempt to deny that some
choice is going to have to be made. Law is about power, and when you give
Hobbes the happy naturalistic conceit that it can never be against reason,
he turns the whole meaning of the phrase on its head by agreeing and then
saying, "[W]hose reason?"
So the first two examples give us two perspectives on the subject in
liberal state theory. The critique of Rawls shows how one can "load
up" one's theoretical subjects with the very choices about the foundational
arrangements of a state that one needs to justify. The excerpt from
Hobbes shows the difficulty of making it appear that decisions within
a state come from objective reason and not a subjective will. In the
next section, my third critique of the subject, inspired by a curious mixture
of legal realism and Marx's On The Jewish Question,(50)
shows the connection between the idea of the stripped-down subject in philosophy
and the attributes imputed to the legal subject in a liberal, Western state.
At the same time it continues the progression of increasing particularity
started by the first two examples--it offers a critique of formal equality
that addresses the particular ideologies and legal arrangements of Western
C. The Legal Subject
I will turn now from political theory to the subject in legal theory.
At the beginning of this essay I quoted John Chipman Gray reassuring lawyers
that jurisprudence need not concern itself with the "abysmal depths
of personality," that it could take the individual as "a real
indivisible entity" and get on with the work at hand.(51)
I followed that quote with another one, far less sanguine about the naturalness,
the indivisibility and the innocence of the concept of the subject.
The individual is not to be conceived as a sort of elementary nucleus,
a primitive atom, a multiple and inert material on which power comes to
fasten or against which it happens to strike, and in so doing subdues or
crushes individuals. In fact, it is already one of the prime effects of
power that certain bodies, certain gestures, certain discourses, certain
desires, come to be identified and constituted as individuals. The individual,
that is, is not the vis-á-vis of power; it is, I believe,
one of its prime effects.(52)
How does this line of thought apply to the construction of the legal
subject? My first suggestion is that we look at legal history in order
to answer questions similar to the ones I posed about Rawls' theory of
justice. Who gets to be a subject? What qualities or attributes about them
are included in the box of subjectivity and what attributes are excluded?
I cannot attempt such a comprehensive history here, but I venture to suggest
what we might find. First, the definition of the subject will be one of
the most important parts of the legal consciousness of the time--although
it will probably also be seen as something that "goes without saying."
Second, the definition of the subject will change radically through time.
Indeed some of the most important conflicts between modes of legal consciousness
and groups in the profession will be around the definition of subjectivity,
although they will not be understood that way--precisely because each side
has an investment in proving that their vision of the legal subject is
not artificial but natural, not chosen but discovered.
During the period of classical legal thought,(53)
for example, the definition of the subject had certain rigorous requirements.
When we insist on formal equality, we can do so only by drawing a very
narrow picture of what it is to be a legal subject, the universal and formally
defined actor of civil society. I am equal to one of the Rockefellers because
we are both political subjects, we are both formally equal, and the "form"
is very narrow. Disparities of wealth, power, and status are defined out
of existence precisely because they are placed outside the realm of political
subjectivity. Does he have the vote?(54)
Is he a citizen? Does he have the right to speak freely? Then of what relevance
is it that he has no political power, that he is effectively disenfranchised,
and that he does not have the resources to make himself heard? As a political
subject he is equal to anyone.(55)
My students frequently disparage the opinions in Coppage v. Kansas(56)
and Lochner v. New York(57) as clear
examples of biased decision making by judges eager to serve the interests
of the ruling class. In the former case, the question is whether an employer
who tells his workers they will be fired if they refuse to sign a yellow
dog contract--a promise not to join a trade union--can be prosecuted under
a Kansas statute. The statute specifies that it shall be unlawful for an
employer to "coerce, require, demand, or influence" any persons
to enter into such an agreement and also forbids making it a condition
of employment.(58) Writing for the majority,
Justice Pitney agrees that it would have been to the advantage of Hedges
"from the pecuniary point of view and otherwise" to keep his
job and still remain a member of the union.(59)
Nevertheless, he is quick to add that "aside from this matter of pecuniary
interest, there is nothing to show that Hedges was subject to the least
pressure or influence, or that he was not a free agent, in all respects
competent, and at liberty to choose what was best from the standpoint of
his own interests."(60)
For the railroad to tell him they will fire him (unless he contracts
away the right to join the union) could only be coercion if the parties
were unequal in some way. Hedges has the right to leave. The railroad has
the right to fire him or refuse to hire him. In the Court's mind, the situation
is one of the most profound equality, in all cognizable respects.
No doubt, wherever the right of private property exists, there must
and will be inequalities of fortune; and thus it naturally happens that
parties negotiating about a contract are not unhampered by circumstances.
. . . And, since it is self-evident that, unless all things are held in
common, some persons must have more property than others, it is from the
nature of things impossible to uphold freedom of contract and the right
of private property without at the same time recognizing as legitimate
those inequalities of fortune that are the necessary result of the exercise
of those rights.(61)
To my students, the idea that an employer and an employee are in equal
bargaining positions (particularly if employers are allowed to enforce
yellow dog contracts) is a ludicrous one. They conclude that the court
was biased towards the employer.(62) But
to Justice Pitney, the nature of our social system logically dictates those
qualities which can be included within the legal subject. Inequalities
of wealth and power cannot be recognized--just as Rawls' subjects are not
allowed "envy" or "altruism." Mr. Hedges must be a
legal subject, formally equal to the legal subject of the corporation with
which he negotiates. As the court in Lochner put it, the bakers
are not "wards of the state." The only disabilities which can
be recognized in the subject are those which affect the exercise of the
will--narrowly conceived to mean the capacity to make calculations of means-ends
rationality within the existing "inequalities of fortune."(63)
Thus, the classical and post-classical jurists tie themselves in knots
discussing exactly who does, and who does not, possess "will,"
and in explaining how a legal subject which does not possess will can nevertheless
have rights and duties. John Chipman Gray's Borgesian catalogue of the
types of legal subject is a fine example of the genre.
In books of the Law, as in other books, and in common speech, "person"
is often used as meaning a human being, but the technical legal meaning
of a "person" is a subject of rights and duties. . . . In various
systems of Law different kinds of persons are recognized. They may be classified
thus: (I) Normal human beings; (II) abnormal human beings, such as idiots;
(III) supernatural beings; (IV) animals; (V) inanimate objects such as
ships; (VI) juristic persons, such as corporations. Some of these persons,
such as idiots, ships, and corporations, have no real will. How are we
to deal with them? That is the most difficult question in the whole domain
It seems as though the problems surrounding the classical project of
specifying the content of real equality for formally defined legal subjects
are analogous to the problems in explaining substantive knowledge-acquisition
or a theory of justice, in terms of universal (contentless) epistemological
subjects. In both, it is the exclusion of the most important aspects
from the constructed "subjectivity" that gives the system its
If we were to stop here, it would appear that the law, like philosophy,
psychology, political theory, and economics, has constructed an essentialist
subject, excluding on supposedly formal criteria large amounts of human
experience, social context, class power, and racial, sexual, and gender
difference, and thus claiming to be a universal and apolitical authority.
The key feature of this subject is that it looks empty, but is actually
full. To put it another way, the subject's biases, motivations, and assumptions
are the same ones honored in the dominant culture. It is transparent to
our gaze so, like a fragment of glass in water, it can be seen to exist
as an artifact only at moments of the most severe refraction and distortion--such
as the moments provided by Coppage v. Kansas and Lochner v. New
The interesting twist comes when we realize that the development of
the legal subject did not stop with classical legal thought. As John Chipman
Gray's quote suggests, the law already had to deal with a number of "subjects"
which strained the classical conception to the maximum. The debates over
the nature of corporate personality are only the most obvious sign. With
the coming of legal realism the subject. . . . Well, the subject exploded.
The realist attack on the classical legal subject came on a multitude
of fronts. Classical legal thought had stripped its subjects of any of
their social and economic power before allowing them through the gates
of the law. The realists insisted that there was no coherent and epistemologically
defensible way that this could be done(66)
and that the attempt to do it would lead to substantively poor decisions.(67)
The realist attack was particularly effective in corporation law, where
the "constructed" nature of the subject was more apparent. In
Transcendental Nonsense and the Functionalist Approach,(68)
Felix Cohen suggests that the question "where is a corporation"
is the kind of nonsense you can expect from scholastics drunk on their
own wordy theories. In fact, talking about whether the corporation is "in
the jurisdiction"--or even exists at all--is simply a way of expressing
our conclusions about the "policy question" of whether we wish
to hold the corporation liable, or grant its directors immunity from suit,
or whatever. In other words, to talk of the legal subject is merely to
restate a conclusion reached on other grounds. Legal subjects pop in and
out of being as a (mysteriously arrived at) set of policy conclusions changes
and shifts. In this, Cohen and Foucault are in complete agreement. "In
fact, it is already one of the prime effects of power that certain bodies,
certain gestures, certain discourses, certain desires come to be identified
and constituted as individuals."(69)
Of course, it is only in jurisprudence courses that the adoption of
ideas produces a completely consistent set of results in the world. The
result of the realist revolution has been to produce not one, but a host
of legal subjects. Sometimes, we decide that the subjects who are allowed
inside the veil of the law will not merely be "competent contracting
parties"--who meet some minimum standard of age and rationality but
otherwise have no identifying characteristics. Thus, the illustrations
to section 364 of the Second Restatement of Contracts indicate specific
performance will be refused on the grounds of unfairness where "an
aged illiterate farmer, inexperienced in business" makes a contract
with an "experienced speculator in real estate" who "takes
advantage of [the farmer's] ignorance" of a developer's offer in order
to make a killing.(70) We have, in other
words, decided to allow some more features of the subject inside the charmed
circle of the law.(71) Sometimes we decide
that the subject needs to be identified by gender or race--as in the varying
levels of scrutiny in constitutional law. But although the law sometimes
acts as if it had abandoned the classical conception of the subject, it
does not necessarily talk that way. Thus, when the Reagan or Bush administrations
wanted to roll back civil rights decisions or scholarships to historically
disadvantaged groups, they conjured up the world of formally equal race-less,
classless subjects and decried as "discrimination" any attempts
either to remedy past oppression or to distribute social wealth to disadvantaged
communities.(72) It is the unacknowledged
paradox of a professional practice, which challenges the classical subject
and a public discourse which pays homage to it, that is typical of legal
discourse at the end of the twentieth century.
D. The Professional Subject
The subject is not merely of theoretical interest. My final suggestion
is that we might focus on the way that the people who work with the languages
of power in our society (law, science, economics, policy science) are actually
constituted as social subjects by a set of reified roles which they imagine
they are deducing from the structure of their disciplines. The scientist
creates herself as "a scientist" by imagining, rehearsing, and
then playing out the features that are appropriate to the subject in the
scientific world of subject and object. Desire, gender, class, political
judgment--all of these are extraneous to the disciplinary boundaries of
subjectivity. The law professor thinks that there is a role which comes
ready-made--attached to the professional discourse of the law. In other
words, it is not simply that these disciplines lay false claims to objectivity.
They are also thought by their practitioners to contain a blue-print for
the professional subject.
My thesis--and I take this to be one of Pierre Schlag's points(73)--is
that we should concentrate on the constitution of legal subjectivity
in another sense as well: in the creation and maintenance of the "purified"
fantasy persona that confronts and receives legal knowledge. "I do
not demand the respect for myself, you understand. It's the robe, not the
man, the law, not its servant." Instead of writing another critique
of law and economics, we should be looking at the bizarre mechanisms by
which a fancy formal discourse produces the felt necessity of a "real
life" persona--a false subject for a false objectivity. Sartre expresses
the point nicely in one of his spurts of amphetamine prose.
[A]mong the thousands of ways which the for-itself has of trying to
wrench itself away from its original contingency, there is one which consists
in trying to make itself recognized by the Other as an existence by right.
We insist on our individual rights only within the compass of a vast project
which would tend to confer existence on us in terms of the functions which
we fulfill. This is the reason why man tries so often to identify himself
with his function and seeks to see in himself only the "Presiding
Judge of the Court of Appeal," the "Chief Treasurer and Paymaster"
etc. . . . But these efforts to escape original contingency succeed only
in better establishing the existence of this contingency. Freedom can not
determine its existence by the end which it posits. . . . Actually, freedom
is not a simple undetermined power. . . . It determines itself by its very
upsurge as a "doing." But as we have seen, to do supposes
the nihilation of a given.(74)
For Pierre Schlag, the question is, "Who is the 'we' to whom our
discussions are aimed?" For me, the question is also, "How is
the professional self that we construct shaped by a reified set of functions
we imagine ourselves having to fulfill?" Lyotard or Merleau-Ponty
might help one answer the first question. Melville and Kafka have some
interesting things to say about the second.(75)
E. A Toolkit for Making Subjects
In a useful sense, the four "subjects" that I have just described
are actually the same. The subject is loaded up, consciously or unconsciously,
with a particular set of qualities or attributes. That subject then reflexively
produces a kind of society, a legal decision, or a professional practice.
I could have multiplied my examples ad nauseam. For instance, I think one
sees the same thing in law and economics, where the subjects are motivated
by just that degree of graspingness and selfish paranoia which economists
deem to be so laudable--but in a way which fundamentally begs the question.
The assumptions of exogenous preferences, risk neutrality, and so on, have
profound political consequences that are concealed because they are loaded
into the subject at such an early point in the theory.(76)
Clearly it is not just objectivity which is used as a device in order to
armor, to protect our languages of power.
Hopefully, my four examples of subjectivity have shown the varied roles
and consistent importance which may be imputed to subjectivity. If we put
all of those examples together with the idea that the subject/object split
is projected into, rather than present within, each theory we can actually
generate a taxonomy of subjectivity.
In each of the examples I have given so far, the leverage of the subject depends on what role the subject and the object have been "given" to play. These roles are not random, but neither are they hierarchically organized. The standard role pairs are:
and a whole lot more depending on how you cut it up.
In the Rawls example, the philosophical privilege comes from the particular/universal
opposition. Subjects occupy a constitutive role in working out the details
of the state. They are imbued with a kind of rationality that Rawls sees
as universal and uncontentious and, given only this drive, their lack of
knowledge about what substantive position they will occupy in the resultant
society departicularizes their choices, thus purifying them of the "tainted"
kind of subjectivity, which is partial (in both senses), undisciplined,
and private. The "bad" parts of their subjectivity are swallowed
by the framework within which they are constructed, and Rawls imagines
(wrongly, I believe) that this structure does not also "load them
up" with the very set of choices they were supposed to justify.
Hobbes starts from exactly the opposite premise. There is no universal
reason that can oversee legal interpretation, and thus we must privilege
a particular subjectivity. Because society is made up of those who share
the undisciplined, corrupt, and private qualities of the right hand side
of the table, we must construct an authoritative subjectivity that balances
them with the formal, disciplined, and public qualities of the left. Thus
the analysis does, in the end, rely on a universal description of subjects--the
theory of appetites and aversions, which lays bare the need for the authoritative
The marxist and neo-marxist critiques of liberal legal equality point
out the formal nature of the legal subject, its "freedom" from
the substantive realities of social life, and the way that it defines most
of the "real" inequalities into the residual capacity of private
life, thus favoring the particular interests of one class while operating
under the banner of universality.(77) The
legal realist attack on the formal, universal classical subject offered
instead a vision of the subject that reversed the categories: a subject
that was particularized and substantively determined, shaped by the structure
of social interaction to such an extent that it popped in and out of existence
according to the dictates of public policy. To Cohen, as to most of the
realists, the question of corporate personality was simply a shorthand
for every policy goal concerning corporations.
Finally, the professional persona, the role constructed in the interstices
of the economic or scientific or legal language of power--what of it? More
than any of the others, I think, it goes down the left side of the oppositions--
formal, public, disciplined, swallowed by the structure into which it fits.
The professional persona is, in other words, the exact opposite of the
person conjured up by the phrase, "But that's just my subjective view"
(particular, private, substantive, impure, etc.).
It is fairly easy to fit other theories into this matrix--a sort of
"social- thought-by-numbers." Just go down the menu and pick
your arrangement of factors--"I'll have a constituting, structure-swallowing,
substantively defined, purified subject, please, easy on the mayo."
And the radical emancipatory theories are ordering from the same menu,
making the same moves as the theories they criticize. Habermas' ideal speech
situation focuses on qualities that are supposed to be immanent in speech
in order to allow him to create a universal subject which is less fixated
on form than the liberal Lockean equivalent and more interested in holding
social relations up to a purified (constitutive?) benchmark of social and
discursive substantive equality.(78) Alienation
theories appear to depend on the idea of a pure, undisciplined private
and residual subject, which will be revealed in all of its glory when we
strip away the seven veils of false consciousness and formal roles. The
critical legal studies critiques of legal neutrality often sound as though
they are being directed to a subject who is as pure in her capacity for
rational, liberated subjectivity as the words of the law were supposed
to be in their rational, self-revealing objectivity. Feminist theorists
have long stressed the possible connections between the qualities described
in the grid above and a gendered reading of life, law, or social theory.
Sartre's picture of bad faith is dependent on a picture of the acting subject
that, at times, simply seems to be a mirror (i.e., reversed) image of Rawls'.
It really does start to look like social theory by numbers, with the critical
and emancipatory theories just picking a different configuration of the
"subject" from the matrix given above.
Yet social theory by numbers is a profoundly depressing idea. It also
fails to capture the experience of (some) legal scholarship and political
practice--an experience of creative, useful transformative activity--informed
by tradition but not reducible to it. And this is where postmodernism comes
F. A Postmodern Subject
I can now state the appropriately ironic conclusion towards which I
have been wending my way. Professor Wicke's paper gives a fascinating and
erudite discussion of a postmodern view of the subject. She discusses the
way in which postmodernism emphasizes the multitudinous, cross-cutting
definition of each of us as subjects. In the extreme version of postmodernism,
the determinants of class and race and age and group and religion and sexual
orientation and role and mood and context constitute us in a changing pattern
from moment to moment. From their varied intersection springs up a postmodern
self. "I" am merely the place where these things happen. To be
a postmodernist is to echo Walt Whitman. "Do I contradict myself?
Very well then, I contradict myself. I am large. I contain multitudes."
Professor Wicke expresses guarded approval of the postmodern tendency
in culture, but she draws the line at law. In law, she suggests, we need
to keep the unitary, rights-holding subject of liberalism--at least if
we are to hold out hope for the disadvantaged in our society. I disagree,
but in any case the point is moot. In my view, the legal subject has seemed
distinctly postmodern for a very long time indeed.
Take corporations. (Surely the coldest of all examples.) What is a corporate
entity? Well, it depends. In one mode we think of a corporate entity as
a vehicle that aims at protecting shareholders from liability and that
seeks to maximize economic output. In another mode we think of it as a
legal fiction. The legal subject is overtly a fiction, the placeholder
for a set of policy goals, only one of which is the protection of shareholders.
At another moment, we act as if the corporation was a real entity--with
concerns and entitlements indistinguishable from a breathing person. At
moments in legal history, the corporate form has even seemed to offer a
higher form of commonality, of togetherness.(79)
Gierke meets "Ben & Jerry's." These clashing visions of corporation-ness,
of corporate personality, are clearly postmodern. We accept all of them.
We talk as though all of them were equally true. They are obviously mutually
exclusive, and we have no theory for explaining why we are "in"
one rather than in the other.
As far as I am concerned (to the extent such unabashedly first person
singular comments are still allowed), this is not necessarily a bad thing.
At the beginning of this essay, I offered a vision of modernism and postmodernism.
Modernism always wanted to go beyond, to stress the extent to which the
"form" distorted and limited human experience. A modernist attack
on the subject would try to take Cohen's article one stage further--to
say that every "form" must be dictated entirely by mysteriously
arrived at policy goals. There would be no stable legal subject whatsoever.
We would go beyond the current form . . . only to discover that, in the
process, we had created another one.
The idea of postmodernism that I tried to develop indicated that there
was no "beyond." We would always be both limited and empowered
by the traditions and forms of our past. The postmodernist's "freedom"
lies in the notion of ironic juxtaposition. To repeat the example I used
before, just as the conflicting architectural styles and genres of a postmodern
building both create something together and simultaneously call each component
part into question, I think our legal practice, our scholarship, and our
vision of the subject are usefully illuminated by the postmodern paradigm.
The double movement of simultaneously using and challenging tradition should
be familiar to us. It is what we do every day. Professor Wicke's paper
seems to suggest we should keep, or perhaps reconstruct, the classical
subject.(80) The modernist mood suggests
we should abandon it altogether. To my mind, neither of these strategies
is epistemologically possible, politically feasible, or morally desirable--at
least as compared to the postmodern vision I offer here instead. I draw
some comfort from the fact that this vision of theory seems accurately
to describe existing forms of scholarship and legal practice. Let me give
two final examples.
Think of the battered spouse defense. You have a woman who is in a marriage
which is extremely abusive; she has been beaten for five years, she has
been repeatedly threatened, her husband has shot her in the leg on one
occasion. Finally, when he's asleep, she grabs up a knife and stabs him.
The standard notion of legal self-defense, given our stripped-down subject,
sees no self- defense here. How can there be? The husband is asleep. There
is no immediate threat in the brief time horizon of our genderless, contracting
subject. But the battered spouse's defense lengthens the time horizon of
the subject and makes the subject exist through time.(81)
The lawyers and scholars who created this defense argued that the time-horizon
for self-defense in this case was five years and not five minutes. Now
what is that but a broadening, a temporal stretching, if you will, of the
legal subject? Yet, at the same time that they are using the traditional
genre of legal arguments about the subject and self-defense, these advocates
are also calling that genre into question-- the apparently fixed world
of free will and its limited exceptions around which criminal law is constructed.
The postmodern metaphor seems to work beyond legal practice that is
directed at the construction of subjects. The lawyers who are working to
have gay marriages recognized believe that gays should be entitled to the
important legal rights that marriage gives. At the same time, their actions
are an opening up, a destabilization of the very notion behind marriage--that
mutual commitment, support, and love are exclusively heterosexual. This
is the optimistic vision of postmodern legal practice. You can both work
with and destabilize; you can have your minarets and your Victorian garrets;
both will function, and they might at the same time ironically call each
other into question, and thus leave us with an area of free play otherwise
What about the other subjects in my list of examples? At the very least,
I hope I have met the first goal of the paper, which was to show that the
subject and subjectivity deserved far more attention than they have hitherto
been given. Each of these subjects was capable of reflexively producing
the view of society or professional practice that had been coded into it.
Using the toolkit of subjectivity, we can deconstruct the subjects at the
center of our discourses. But what comes after deconstruction? The answers
are not as clear as they seemed to be with the legal subject. We might
ask ourselves, for example, why it is that law--out of all the disciplines
of market and society--has been the only one with a postmodern subject?
(Even if it was not often recognized as such.) We might try to imagine
a new political theory, a new economics, built around a subject which,
precisely because of its multitudinous and variegated qualities, could
not claim to offer the deductive authority of its unitary ancestors. As
for the professional subject, it has always been important to show that
more than one persona can be deduced from the alleged functional requisites
of the discipline. The rhetoric of postmodernism carries the argument a
little further. After all, if the abstract legal subject can do it, why
The message of this article is that the debates about subject and object
are most important on a more mundane level than that at which they are
normally discussed. Rather than attempting to engage in cosmic philosophy
about the configuration of the "new" epistemology which might
appear "now that the subject has been removed from the picture,"(82)
our work should be concentrating on the social realities represented by
these arguments about epistemology. If I say a certain mode of knowledge
is "breaking down," I am implicitly referring to the social situations
(in courts, prisons, classrooms, hospitals, or even in the pages of political
theory) where a particular kind of authority has been challenged or undermined
by an attack on the mode of discourse that supports it. The fancy philosophical
abstraction is only useful insofar as it allows us to think about the roots
of these diverse challenges. For this to mean anything interesting (as
far as I am concerned) it would have to make a concrete difference to something--be
it the experience of a deconstructionist critique, a political strategy,
or the configuration of power in the courtroom. This was the idea behind
my earlier work on methodology: the vision of local theory and the tension
between subjectivism and structuralism. To my eyes, that vision of methodology
seems to have been reinforced and amplified by the rhetoric of postmodernism.
In this article I have argued that in those concrete situations the critique of objectivity has drawn attention away from the profound implications of our subjects. Throughout the article I have quoted a passage from Foucault, a passage which concludes, "The individual, that is, is not the vis-á-vis of power; it is, I believe, one of its prime effects." My thesis takes Foucault one step further. The subject is not only an effect of power, it is also a cause. Thus I have argued that contemporary legal and political argument can best be understood as a debate over the essential characteristics of the subjects whose actions those arguments describe and prescribe. The subjects of our economic theories and the legal subjects of corporate law, the subjects behind the veil of ignorance and the subjects of civil society all mingle uneasily, finding little in common, like guests at a bad cocktail party. If postmodernism has anything to offer here, it is by giving us another stylistic prejudice, which might offer a new arrangement of our material--not the modernist "man without qualities," but a riotously clashing collage of subjects, homo faber and homo oeconomicus, the transcendental subject and Mrs. Daly. Bizarre as it may seem, the way we handle the legal subject could offer us a vision of postmodern practice--a practice that could simultaneously use and transform its raw material. For lawyers and legal scholars, that might be enough. If we could generalize that vision beyond law, into political theory and economics, who knows? The subject would still be basic to our theorizing but there would be important differences. We might desert deduction for biography.
1. Copyright 1991 by James Boyle
2. Professor of Law, American University. Thanks are due to the editors of the University of Colorado Law Review for their courtesy and charm (both as editors and as hosts), to Jae Won Kim for expert research, and to Pierre Schlag for inspiring the event. Mark Hager, Mark Tushnet, Jamin Raskin, and Jim May provided thoughtful comments.
3. J. CHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW 29 (1908; 2d ed. 1921).
4. M. FOUCAULT, POWER/KNOWLEDGE 98 (1980).
5. For exceptions, see Heller, Structuralism and Critique, 36 STAN. L. REV. 127 (1984); Peller, The Metaphysics of American Law, 73 CALIF. L. REV. 1151 (1985); Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. PA. L. REV. 685 (1985); Schlag, The Problem of the Subject, 69 TEXAS L. REV. __ (forthcoming 1991).
6. See Boyle, supra note 3, at 685.
8. See Gordon, Critical Legal Histories, 36 STAN. L. REV. 57 (1984); Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 MINN. L. REV. 265 (1978); Klare, Labor Law and the Liberal Political Imagination, 62 SOCIALIST REV. 45 (1982); Stone, The Post-War Paradigm in American Labor Law, 90 YALE L.J. 1509 (1981); Raskin, Reviving the Democratic Vision of Labor Law (Book Review), 42 HASTINGS L.J. 1067 (1991).
9. For the classic description, see Gordon, New Development in Legal Theory, in THE POLITICS OF LAW 281-93 (D. Kairys ed. 1982).
10. For a general introduction, see Boyle, Editor's Introduction to CRITICAL LEGAL STUDIES: SELECTED READINGS (forthcoming 1991) [hereinafter SELECTED READINGS].
11. See Boyle, supra note 3, at 762-78.
13. See Kennedy, The Structure of Blackstone's Commentaries, 28 BUFFALO L. REV. 209 (1979); Kennedy, Theses on International Law Discourse, 23 GERMAN Y.B. INT'L L. 353 (1980); Boyle, supra note 8, at 5-6.
14. See Gabel, Reification in Legal Reasoning, 3 RES. L. & SOC. 25 (1980); Gabel, The Phenomenology of Rights-Consciousness and the Past of the Withdrawn Selves, 62 TEX. L. REV. 1563 (1984).
15. See J.P. SARTRE, BEING AND NOTHINGNESS (1956).
16. See F. DALLMARY, TWILIGHT OF SUBJECTIVITY (1981); M. FOUCAULT, THE ORDER OF THINGS (1970). "Subjectivity was not waiting for philosophers. . . . They constructed it, and in more than one way. And what they have done must perhaps be undone." Merleau-Ponty, Everywhere and Nowhere, SIGNS 153 (1964).
17. See, e.g., J. HABERMAS, The Scientization of Politics and Public Opinion, in TOWARD A RATIONAL SOCIETY 62 (1970) and the other intellectual movements discussed in Boyle, supra note 3, at 697-702.
18. See Boyle, supra note 3, at 691-720.
19. See id. at 691-720, 736-80.
20. Foucault, Geneaologie des Sciences, 9 CAHIERS POUR L'ANALYSE 12 (Summer 1968).
21. Merleau-Ponty, supra note 14, at 153.
22. See T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970); PARADIGMS AND REVOLUTIONS (G. Gutting ed. 1980); J. SEARLE, SPEECH ACTS (1969); and Boyle, supra note 3, at 730 n.141.
23. See R. UNGER, KNOWLEDGE AND POLITICS (1975).
24. See J. DERRIDA, OF GRAMMATOLOGY (G. Spivak trans. 1976).
25. See L. ALTHUSSER, FOR MARX (B. Brewster trans. 1969).
26. See N. CHODOROW, THE REPRODUCTION OF MOTHERING: PSYCHOANALYSIS AND THE SOCIOLOGY OF GENDER (1978).
27. See C. LEVI-STRAUSS, STRUCTURAL ANTHROPOLOGY (1963).
28. See M. BERMAN, ALL THAT IS SOLID MELTS INTO AIR (1982); MODERNISM, 1890- 1930 (1976).
29. See R. UNGER, PASSION: AN ESSAY ON PERSONALITY (1984); Boyle, Modernist Social Theory: Roberto Unger's PASSION (Book Review), 98 HARV. L. REV. 1066 (1985).
30. J. Boyle, Modernism, Realism and Critical Legal Studies in CRITICAL LEGAL STUDIES; A YOUNG PERSON'S GUIDE (materials prepared for the 1984 Conference on Critical Legal Studies; unpublished manuscript on file with the University of Colorado Law Review); R. UNGER, POLITICS: A WORK IN CONSTRUCTIVE SOCIAL THEORY (1987) (this work is contained in three volumes: Social Theory: Its Situation and Its Task; False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy; Plasticity into Power: Comparative-Historical Studies on the Institutional Conditions of Economic and Military Success); Luban, Legal Modernism, 84 MICH. L. REV. 1656 (1986).
31. See Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975.
32. See Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935).
33. See Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. PA. L. REV. 1349 (1982); Horwitz, The History of the Public/Private Distinction, 130 U. PA. L. REV. 1423 (1982); Klare, The Public/Private Distinction in Labor Law, 130 U. PA. L. REV. 1358 (1982).
34. The optimistic tone in Felix Cohen's Transcendental Nonsense, reveals much about the animus behind many of the realist critiques. See Cohen, supra note 30.
35. D. BELL, THE CULTURAL CONDITIONS OF CAPITALISM 51 (1976).
36. See E. PURCELL, THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM AND THE PROBLEM OF VALUE 159-78 (1973).
37. Readers interested in this aspect of modernism are referred to the wonderful account given in The Crisis of Democratic Theory. See id.
38. See Baker, The Ideology of the Economic Analysis of Law, J. PHIL. & PUB. AFF. 3 (1975); Kennedy, Cost-Benefit Analysis of Entitlement Problems: A Critique, 33 STAN. L. REV. 387 (1981).
39. See Boyle, Politics of Reason, supra note 3; Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. LEGAL EDUC. 518 (1986); Kennedy, Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 3 RES. L. & SOC. 3 (1980) [hereinafter Kennedy, Towards an Historical Understanding].
40. But see A. ALTMAN, CRITICAL LEGAL STUDIES (1990). Altman believes that all of these elements become part of the law. This seems unobjectionable, but also does not seem to solve the problem.
41. See Klare, supra note 6; Stone, supra note 6; Gordon, supra note 6; SELECTED READINGS, supra note 8.
42. See Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983); Finley, Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate, 86 COLUM. L. REV. 1118 (1986); MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS 515 (1982); C. MACKINNON, FEMINISM UNMODIFIED (1987).
43. See Frug, Re-Reading Contracts: A Feminist Analysis of A Contracts Casebook, 34 AM. U.L. REV. 1065 (1985).
44. J. RAWLS, A THEORY OF JUSTICE (1971).
45. Rawls' subjects do not suffer from either "envy" (id. at 143) or altruism (id. at 128). They are assumed to meet each other in conditions of moderate scarcity and mutual disinterest. "Unless these circumstances existed there would be no occasion for the virtue of justice, just as in the absence of threats of injury to life and limb there would be no occasion for physical courage." Id. at 128.
46. Rawls is convinced that he is not taking a particularly contentious position. "At the basis of the theory, one tries to assume as little as possible." Id. at 129. He sees mutual disinterest as a formal component of the conditions of justice, in the same way that conditions of relative scarcity are a formal, necessary component for the question of justice to arrive. "In an association of saints agreeing on a common ideal, if such a community could exist, disputes about justice would not occur. . . . But a human society is characterized by the circumstances of justice. The account of these conditions involves no particular theory of human motivation." Id. at 129-30. But this begs the question entirely. One could agree that in a society of saints, questions of justice would not have the content we give to them in our society. But the ability to state circumstances which are outside the conditions of justice does not imply that Rawls' definition of what is inside those conditions has the status of a universal truth. In fact, a society made up of individuals who had "selfish" desires to avoid living in inegalitarian social conditions would also raise questions of justice. To put it another way, the choice is not a binary one--either saints or Rawls' subjects. How could it be?
47. Some defenders of Rawls have argued that this critique does not hit home because Rawls is only creating a theory of justice, not a theory of human nature. Indeed, this objection was made powerfully by Dale Jamieson during the conference and has been made in print by Ed Baker. "Rawls undertakes only to derive the limits that justice would impose on acceptable frameworks for human interaction. To do so, he need only postulate certain universal qualities that we do or should attribute to the person, or to acceptable human interaction. Rawls only needs a theory of those aspects of a person or of human interaction that are relevant to his enterprise." Baker, Sandel on Rawls, 133 U. PA. L. REV. 895, 896 (1985). I remain completely unconvinced. Needing "only" to be able to postulate universal qualities that we should attribute to personhood within a theory of justice, seems to me just as demanding as the task of postulating a universal subject, tout seul. The same epistemological and political difficulties are involved whether one is divining the essential features of the subject in a moral theory or the essential features of human nature. It is no easier to build a small perpetual motion machine than a large one.
48. This section was first printed, in a slightly different form, in my article, Boyle, Thomas Hobbes and the Invented Tradition of Positivism: Reflections on Language, Power, and Essentialism, 135 U. PA. L. REV. 383 (1987).
49. T. HOBBES, LEVIATHAN 316-17 (C. B. McPherson ed. 1968).
50. Marx, On the Jewish Question, in THE MARX-ENGELS READER 26 (R. Tucker ed. 1978).
51. J. CHIPMAN GRAY, supra note 1, at 29.
52. M. FOUCAULT, supra note 2, at 98.
53. See Kennedy, Towards an Historical Understanding, supra note 37; Mensch, The History of Mainstream Legal Thought, in THE POLITICS OF LAW, supra note 7, at 18.
54. I use the male form advisedly. Here is a quote from a 19th century constitutional text, extolling the equality of legal subjects--within limits. "Those who make the laws 'are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough."' T. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 559 (1906). This seems fair enough until one looks at the editor's footnote which accompanies this broad statement. "This principle is not to be carried so far as to put all persons on an equality as to rights which are not natural rights. So though there be a statute providing that the masculine shall include all genders, a woman is not entitled to admission to the bar under a statute that 'any male citizen,' possessing certain qualifications, shall be admitted and such statute is valid." Id. at 559 n.1 (citations omitted).
58. Coppage v. Kansas, 236 U.S. at 8.
62. Actually, they say that Justice Pitney was being "subjective," a classic example of how the language of subjective and objective fails to convey the way that legal consciousness is value-laden but is also structured and constrained by belief systems which are constructed by groups rather than individuals. There is nothing of whim, caprice, or individual eccentricity in Justice Pitney's opinion. Admittedly, all categorical systems group together actions which seem entirely dissimilar if viewed from the perspective of a different system. One useful way of testing one's categorical system is to ask how well it performs the standard tasks required of it. How useful, then, is it for a lawyer or legal scholar to look at Justice Pitney's opinion and describe it as "subjective," the same word a philosopher might use about individual tastes in ice cream? In that particular act of homologization, I would say that we lose more than we gain.
63. See Peller, supra note 3, at 1207.
64. J. CHIPMAN GRAY, supra note 1, at 27-28. The next stage of the histories of subject within the law would be to focus on those legal subjects who were marginal to the conceptual scheme but central to economic life--i.e., corporations. My colleague Mark Hager has already made an excellent start. Hager, Bodies Politic: The Progressive History of Organizational 'Real Entity' Theory, 50 U. PITT. L. REV. 575 (1989).
65. These moments of refraction are many and varied. Bradwell v. State, 83 U.S. (16 Wall.) 130 (1872), makes sure that women understand that they are not legal subjects, whatever the explicit language to the contrary. Plessy v. Ferguson, 163 U.S. 537 (1896), reassures black Americans, on the other hand, that they are full legal subjects and--precisely for that reason--they should not take legislated apartheid as being a form of inequality. Since as a formal matter, we have declared them legal subjects, and since the subject by definition has no race, the fact that these rules keep whites separate from blacks does not mean there is any inequality between each side as formally defined legal subjects. One group of raceless subjects is simply being told to occupy a different space than another group of raceless subjects. If there is any inferiority or stigma, reasons the court, it must be entirely in the minds of the black population.
66. For example, decisions about duress could not be made using a decontextualized subject because duress flowed precisely from the disparities of power, information, and wealth between actual parties. To put it another way, no objectively justified line could be drawn between permissible (economic) and impermissible (physically coercive or overreaching) forms of duress. Hale, Bargaining, Duress, and Economic Liberty, 43 COLUM. L. REV. 603 (1943); Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Peller, supra note 3.
67. The realist arguments are still being restated. The power of Judge Noonan's book (J. NOONAN, PERSONS AND MASKS OF THE LAW (1976)) comes from the fact that it is one of the few mainstream accounts to recognize how impoverished a conception of a person the legal subject provides and to argue that this results in definite unfairness to those who do not fit into the Procrustean box of legal subjectivity. I suspect that Judge Noonan and I disagree on many political issues. Still, after reading his elegant and humane account I was unsurprised to find that he had been a student of Lon Fuller's. Somehow, it is hard to imagine a student currently studying law and economics producing a similar book in the year 2021.
69. M. FOUCAULT, supra note 2.
70. RESTATEMENT (SECOND) OF CONTRACTS § 364 (1981).
71. Although, in this case, the "features" are considered only where specific performance is involved.
72. For a sense of how the post-modern slant fits into all of this, see Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DUKE L.J. 705; Peller, Race Consciousness, 1990 DUKE L.J. 758.
74. J.-P. SARTRE, supra note 13, at 485.
75. H. MELVILLE, Bartleby, in BILLY BUDD AND OTHER STORIES (H. Beaver ed. 1956); F. KAFKA, THE TRIAL (1937).
76. See Kelman, Choice and Utility, 1979 WIS. L. REV. 769.
77. Marxism itself repeats this process of theoretical construction. In the Marxist vision, the working class is a particular historical actor with universal potential--as the historical vehicle for the realization of the species being, it has the potential to achieve a world in which all of these dichotomies will be erased. It is precisely because the working class has been thrust into the position of the guardian of the residual interests of the species, unrealized in bourgeois society, that it is granted its temporary warrant of universality. The working class is swallowed, determined by capitalist society in just the same way as the bourgeoisie, but it is pushing history in the direction of a world in which free subjects will make history with will and consciousness, will swallow rather than be swallowed by the structures of determination.
78. J. HABERMAS, LEGITIMATION CRISIS (1975); J. HABERMAS, THEORY OF COMMUNICATIVE ACTION (1984).
80. See Wicke, Postmodern Identity and the Legal Subject, 62 U. COLO. L. REV. 455 (1991).
81. See Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U. L. REV. 589 (1986).