Essays in refusal: pre-theoretical commitments in postmodern anthropology and critical race theory.

• Author: Jinks, Derek P.

The necessity of reform mustn't be allowed to become a form of blackmail

serving to limit, reduce or halt the exercise of criticism. Under no

circumstances should one pay attention to those who tell one: "Don't

criticize, since you're not capable of carrying out a reform." That's

ministerial cabinet talk. Critique doesn't have to be the premise of a

deduction which concludes: this then is what needs to be done. It should

be an instrument for those who fight, those who resist and refuse what is.

Its use should be in processes of conflict and confrontation, essays in

refusal.

--Michel Foucault(1)

1. INTRODUCTION: THE SOCIOLOGY OF CRITIQUE

   Michel Foucault's compelling and poetic methodological manifesto describes the nature of "critique" and, thereby, the proper role of the critic. For Foucault, "critique" was more than a means to an end; criticism was itself an act of resistance and refusal.(2) Toward this end, Foucault sought to decouple criticism from positive programs for social and political change.(3) Criticism is, according to this view, a negative operation--"essays in refusal"--resisting and rejecting "what is" without regard for "what needs to be done."(4) For this reason, Foucault's views have occasionally been labeled Such "rejectionist"(5) claims, in turn, exemplify the most feared aspects of a new challenge to traditional legal thought: postmodernism.(6)

   In this Note, I challenge Foucauldian "rejectionism" by suggesting, through an example, that criticism cannot and should not assume an irreducibly oppositional stance. Critique is indeed "a challenge directed to what is";(7) this challenge, however, should not be reduced to an "insurrectionary gesture."(8) I forward two broad claims. First, criticism itself should be understood as a social practice. Such an understanding demonstrates that certain characterizations of postmodernism as an antifoundational, nihilistic retreat from struggles for justice have no referent in the social world.(9) Second, this sociological understanding of criticism provides scholars with useful conceptual resources with which to guide the productive incorporation of postmodern insights into legal scholarship.

   Debates about the propriety of postmodernism's anti foundational thinking have rapidly assumed a central role in many areas of legal inquiry.(10) Many legal scholars lament the arguably paralyzing, solipsistic mood of postmodernism,(11) while others celebrate postmodernism's putative emancipatory commitment to multiplicity, subjectivity, and indeterminacy.(12) Without engaging these debates directly, this Note analyzes the impact of the "postmodern turn" on the Critical Race Theory (CRT) movement.(13)

   CRT is often characterized--usually as a precursor to criticism--as postmodern.(14) In fact, CRT seemingly strikes an ambivalent pose on the postmodern question;(15) some CRT scholars applaud the incorporation of postmodernism into "outsider jurisprudence,"(16) while others warn of the dangers of narcissism(17) and political paralysis.(18) This surface ambivalence, however, masks a deeper consensus: While CRT scholars reach different conclusions on the usefulness of postmodernism, they apply the same pre-theoretical Criteria(19) in the course of generating their respective conclusions. That is, CRT does not (and should not) embrace Foucault's understanding of the critic as "rejectionist."(20) This Note elaborates on this point by offering an examination of the ways in which another discipline--anthropology--selectively appropriates insights from postmodernism. Such an exercise demonstrates that the practice of CRT, properly understood, is not an antifoundational. enterprise.

   Although my understanding of the law's conceptual and normative commitments is shaped in no small measure by the insights of CRT, this Note is properly understood as a commentary on CRT rather than an instance of CRT. Additionally, I offer no criticism of CRT; nor do I suggest abandoning existing CRT research programs. Rather, this Note provides a sociological perspective(21) on the practice of CRT(22) as a way of deciphering the socially constructed boundaries that encircle and limit the CRT project.(23)

   More specifically, I suggest that CRT occupies a delimited domain of legal thought within which the range of acceptable propositions is a function of identifiable pre-theoretical commitments.(24) Pre-theoretical commitments are the unquestioned assumptions that make any theoretical discourse possible.(25) Any distinctive style or method of analyzing problems necessarily entails certain conceptual commitments. Consider, for example, theories of gaming or strategy. Chess strategists may disagree about the most appropriate defense against an English opening, but they unambiguously agree on, among other things, the game's ultimate objective. This consensus is a condition of possibility for the range of disagreements that comprise chess theory. Simply put, chess is chess in virtue of this agreement.

   These pre-theoretical commitments therefore establish pragmatic foundations for any theoretical discourse.(26) The identifiable pre-theoretical commitments of CRT establish discursive limits on the range of theoretical propositions that could properly be characterized as CRT. That is, any project that involves departure or derogation from these commitments is not identifiable as CRT. My claim is not that scholars are unable to theorize or interrogate the pre-theoretical commitments of CRT. Rather, I suggest that the ability of the scholar to reflect on any issue from within a disciplinary framework is constrained by that discipline's pre-theoretical commitments.(27)

   Three related propositions are suggested by this analysis. First, CRT--even in its most deconstructive moments--inhabits an identifiable "political location."(28) Second, this "political location" provides firm foundations that structure CRT as a theoretical (and practical) discourse. Third, the source of these foundations is social. Toward this end, I aim to demonstrate some of the ways in which CRT--as a socially organized practice--necessarily involves and informs what Michel Foucault derided as "ministerial cabinet talk."(29) In short, the characterization of CRT as antifoundational--postmodern in the strong sense--is flawed. Furthermore, I claim that CRT's pre-theoretical commitments specify the conditions under which CRT should appropriate the insights of postmodernism. In this way, the Note strives to articulate a "sociology of critique" that would provide an account of the uses and abuses of "postmodern CRT."(30)

   The Note's argument proceeds as follows. Part II outlines and analyzes the debate over postmodernism in CRT. In this part, I point out some of the conceptual difficulties encountered by Critical Race Theorists in their attempts to answer Foucault's call for "essays in refusal." I suggest that the very ways in which CRT assumes an oppositional stance to traditional civil rights scholarship limit the breadth and depth of CRT's critical project. This analysis suggests that CRT qua CRT involves certain pre-theoretical commitments: namely, CRT is committed to the concept of racial justice--a concept that is in turn wedded to a range of other conceptual commitments. The reasoning in this part suggests that the question, properly specified, on the relationship between CRT and postmodernism is the following: What is the relationship between these pre-theoretical commitments and the theoretical orientation of of CRT?

   In Part III, I offer postmodern anthropology as an informative analogue. Analysis of anthropology's confrontation with postmodernism underscores the descriptive power of the notion of "pre-theoretical commitments." Anthropology's pre-theoretical commitment to the ethnographic method places discernible limits on the discipline's appropriation of postmodern critique.(31) That is, the intellectual domain of anthropology is defined--as against other fields of inquiry and other forms of knowledge--by its commitment to the clarification of concepts such as "culture" and "difference" through ethnography. As such, the incoherence of ethnographic representation prefigures the incoherence of anthropology itself. The example of "postmodern anthropology" clearly demonstrates the proper limits of radical critique: The apex of critical discourse within any field of inquiry is a reflexive turn aimed at specifying the field's pre-theoretical commitments.(32) Theoretical reflexivity--reflection upon the process of theorizing itself--generates what political scientist William Connolly calls "theoretical self-consciousness."(33)

   In Part IV, I apply the lessons of anthropology's encounter with postmodernism to CRT. I suggest that the critic's positionality--clarified by reflexive analysis--is a function of the relevant discourse's pre-theoretical commitments. Additionally, I argue that postmodern insights might inform a reflexive critique of CRT without renouncing the pre-theoretical commitments of CRT.

   In Part V, I conclude with a reflection on Foucault's clarion call for "essays in refusal." I argue that understanding "criticism" as a socially organized practice with identifiable, foundational commitments counsels against embracing the Foucauldian notion of irreducibly oppositional critique.

2. THE POLITICS OF RECONSTRUCTION: THE PERILS OF POSTMODERNISM AND THE PRE-THEORETICAL COMMITMENTS OF CRITICAL RACE THEORY

   CRT is often characterized as "postmodern,"(34) "antifoundational,"(35) or "nihilistic."(36) Given the controversy surrounding postmodernism in the legal academy,(37) these characterizations (regrettably) inform much of the debate on the merits of CRT.(38) Additionally, the genealogical relationship between CRT and Critical Legal Studies (CLS) gives rise to a deep tension in CRT that complicates the relationship between CRT and postmodernism.(39) As a radical discourse utilizing CLS methodology, CRT challenges and rejects...