Performativity between logos and nomos: law, temporality and the 'non-economic analysis of power'.

• Author: Birla, Ritu

Judith Butler's signature theorizing of performativity requires attention to the full ethico-political range of the meanings of law, from self-discipline to convention to the juridical logic of sovereignty. That is, performativity spans the continuum across political rule and ethical rules, and the play of processes of subjectivization, subjecthood and subjection. Problematizing the sovereign subject, Butler unpacks the a priori, intending legal subject by reading law at once as text, thus cracking open the self-referential and universalist moves of sealed juridical logic, and also as context, as norms that are always on the move. Considering law's performativity challenges the authorial and authoritative transparency of law--its sovereignty--by demanding a temporally robust approach to the very idea of context. A theorizing of iteration and citationality, performativity poses context as more than just the historical and empirical framework for law, contemplating it instead as the historicity of law itself, of law understood as ever-shifting convention, or the always already situated norms that become sites for citation.

My work on the installation of rule of law in colonial India, particularly colonial law's staging of society as market, and its temporal politics, that is, its production of modern, contracting economic subjects as opposed to the anachronistic subjects of custom, brings me back to these thematics of convention, context and historicity in Butler's work. In British India, a mission to systematize law confronted the array of customs and conventions among local populations. Butler innovatively engages such tensions across different forms of law. A deconstmction of the speech act, the idea of performativity reveals itself as a temporal play that cuts across two broad concepts of law: logos and nomos. Logos, traditionally translated as reason or speech, also evokes a divine performative, the word or sovereign command, as well as the notion of law as a sealed logic or system. Law as nomos, on the other hand, refers to law as convention, what is done and what is accepted. The idea of nomos evokes ways of being, settled norms and values, while at the same time exposing a problem of agency: who is the agent of convention? In legal scholarship, both explicitly and implicitly, the concept of law as nomos has informed robust readings of legal regimes as lived worlds, as normative universes that are made, maintained and remade. (1) Butler's performativity complicates and finesses such critical approaches. To show how, I draw attention to the temporal and spatial situatedness of convention and pose nomos as a marker of context, its consistent remaking, and so its (im)possibility.

I would like then to emphasize Butler's wide-angle approach to law, which renders her a unique legal theorist whose legal philosophy stems from a relentless focus on the slippages across, and temporalities of, law as nomos and as logos. After discussing Excitable Speech to highlight these moves, I will consider the ways in which they cite and speak to another influential mapping of the ethico-political continuum of law: Foucault's analysis of discourses of governing/government, particularly in his late College de France lectures, and what he calls the "non-economic analysis of power," which informs his genealogy of governmentality. (2) In a much-cited early lecture, Foucault asks if it is possible to imagine relations of power differently from the classical models of social contract that structure liberal democratic legal systems today, models which conceptualize power as an economy or exchange of rights. (3) Butler's theorizing of performativity challenges liberal templates of law and legal procedure in just this way.

To further pursue this connection between Butler and Foucault on the relationship of law and governmentality, and to bring the early Butler of Excitable Speech (4) to the Butler of Precarious Life, (5) I will pose questions that are opened by the story of the rule of law in British India, especially the legal institutionalization of that ubiquitous modern social imaginary, "the economy." As I have asserted in my research, British colonial liberalism's investment in the rule of law relied on institutionalizing the market as a model for all social relations. The history of British colonial liberalism demands that we address forms of legal subjecthood and rights alongside, rather than as the antidote to, the proliferation of governmental technologies directed at managing bodies and enforcing authority over political subjects. A fruitful way to do so, I argue, is to consider the performatives of law in its production of the market as sovereign--as a name for the social itself--a project relevant to the study of both nineteenth-century colonial and contemporary forms of governing.

Butler's work asks: how can we conceptualize and operationalize law within our ever more fine-tuned governmentalities? With this basic and crucial question in mind, I would like to emphasize that Butler's theorizing of the performative constitution of the subject and sovereignty, as well as the impossibility of radical autonomy (that is, auto-nomos, or a kind of self-regulation) elaborate a "non-economic analysis of power" in three broad ways: by unpacking the legal subject with unmediated intention, by locating juridical sovereignty as an effect of technologies of governmentality and by challenging universalizing legal monopolies on definitions of the social.

To supplement, I would like to connect the situated politics of performativity, which appropriate established conventions to enact new forms of community, with a robust reading of the idea of economy. Such a reading embraces the located historicity of law as nomos to challenge the universalizing logos of neoliberal market sovereignty. In its most classical sense, economy, from the greek oikonomia or the nomos (law/convention) that regulates the oikos (household), is itself a notion of law. Through economy, law as convention is embedded within a concept of community and kinship (oikos). Here, I read performative politics as the critical inhabiting of the classical concept of economy and its intimate linking of law, kinship and community. Emphasizing that performativity is an approach to law that addresses the embeddedness of subjects within conventions and insists on the opening up of new temporalities and socialities, I would like to briefly consider in closing analytical approaches that would challenge that thing we call (and are called to protect and obey), that is, "the market" and its logos, its divine performative, or "established conventions of universality," to use Butler's phrase. (6) Interested in the sovereign performatives of law and in the very context-making possibilities that challenge those sovereign performatives, Butler offers tools for reading law as governmentality, tools relevant for unpacking colonial liberalism as well as contemporary neoliberal forms of governance. (7)

Before launching into a closer reading of Butler, let me offer a brief elaboration of the historical lens I bring to this analysis: I have charted the installation of law standardizing the free circulation of capital in British India, not only as case study, but also a site and citation of the genealogy of capitalist modernity itself. (8) This is a story about how the fortification of the rule of law produced a new object of sovereign management, "the market" or "the economy," a supra-local abstraction that introduces and stands in for a novel understanding of community --the notion of the "the public." The history of jurisprudence and statute on market practice in South Asia during the late nineteenth and early twentieth centuries marks the installation of contract law in an arena where extended kinship and customary practice ruled. These dynamics reflect a historical situation in which law as logos--the rule of law manifest in an obsessive Benthamite standardization of market practice--confronted law as nomos, in its most situated sense as shifting customary practices (practices that Hindu and Muslim legal traditions had adjudicated with attention to the specificity of context). Indeed, as many critical scholars have highlighted, the colonial legal regime codified custom itself, casting shifting, situated conventions into the scripted logics of religious personal laws and thus rendering formerly negotiable hierarchies and differences (themselves oppressive, and so not to be celebrated) as rigid and fixed. (9) In other words, colonial legal pluralism evinced governmental imperatives to locate and classify communities, rather than any benign interest in promoting arenas of self-governance, as official policy would claim. (10) I have therefore been especially concerned with colonial law's production of a modern economic subject, as well as the concomitant production of a pre-modern, ancient cultural subject as its Other and its effect. This temporizing of modern self and its anachronistic Other reflected colonial liberalism's remapping of social relations, one which produced new stages--spatial and temporal--for enacting politics: the modern public space of "economy" and the supposedly age-old private arena of native "culture." (11) Especially after 1858, colonial authorities claimed not to interfere with indigenous culture, elaborating a dual legal system in which modernizing civil and criminal law governed "the public," while the domains of personal law regulated the "private" realm of religio-cultural practice, including matters concerning extended family, inheritance and women's status. Thus, in addition to codifying fluid forms of customary practice in the personal law, the colonial legal regime recoded sociality itself along the axis of public (the realm of economy) and private (the realm of culture).

1. PERFORMATIVITY, TEMPORALITY AND THE PROBLEM OF CONTEXT

   Performativity plays...