ArticlesVolume 21, Number 2 (2011)

Law in Drag: Trials and Legal Performativity

Abstract

To import Judith Butler’s work into a conversation about law is to unfurl a provocative new map of a familiar landscape and to revel in the pleasure of traveling it, off-road, looking anew at landmarks so many have passed by for so long. She has a way of talking about law that pins down its complicity in a stubbornly enduring social order even as she breathes life into it as a domain for exploration and critique. The force of her thinking-for me, particularly her thinking about performativity -shatters conventional ideas about what law is by enabling us to ask how it is enunciated, what it produces, how it is “done.” Can one think of law as a kind of subject formation in itself, one that authorizes itself via what Butler has called a “sovereign conceit” but that in fact is called into being in the very act of calling others to account? Taking up performativity this way might seem slightly off- color. After all, as Butler has framed it, the interpellative process has a political edge to it. “Its purpose,” as she proposes in Excitable Speech, “is to indicate and establish a subject in subjection.”‘ One could hardly argue that law is a “subject in subjection.” And yet, in what follows, I will try to elaborate on the ways in which at least one kind of legal operation, the trial, is implicated in an interpellative process2 that destabilizes its own relation to state power, though neither fully nor innocently.┬áMoreover, I will argue that the trial is a legal space ripe for critical analyses of identity formation, a place in which the norms that bring certain kinds of moral or moralized subjects into being are contested rather than assumed. In trials, alterity (that is, difference or otherness) within norms can be at least partially exposed because of the ways in which trials stage their own performative relation to “law.”