ArticlesVolume 21, Number 2 (2011)

Performativity between Logos and Nomos: Law, Temporality and the Non-Economic Analysis of Power

Abstract

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 modem, 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 deconstruction of the speech act, the idea of performativity reveals itself as a temporal play that cuts across two broadĀ 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. 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.