Adriana Cavarero

Resistance and the Voice of Law

Elisabetta R. Bertolino

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351259545
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Critical legal scholars have made us aware that law is made up not only of rules but also of language. But who speaks the language of law? And can one lawfully speak in one's voice? For the Italian philosopher Adriana Cavarero, to answer these questions we must not separate who is speaking from the very act of speaking; moreover, we must recuperate the material singularity and relationality of the mouth that speaks. Drawing on Cavarero's work, this book focuses on the potentiality of the voice for resisting law's sovereign structures. For Cavarero, it is the voice that expresses one's living and unrepeatable singularity in a way that cannot be subsumed by the universalities and standards of law. The voice is essentially a material and singular passage of air and vibration that necessarily reveals one's uniqueness in relationality. Speaking discloses this uniqueness, and so one's vulnerability. It therefore leads to possibilities of resistance that, here, bring a fresh approach to longstanding legal theoretical concerns with singularity, ethics and justice.

Part I
The voice and its possibilities of resistance

Chapter 1
Can one speak in one’s voice? One’s voice and the critique and resistance of the law: a review of the literature

The ontological horizon that is disclosed by the voice – or what we want to call a vocal ontology of uniqueness – stands in contrast to the various ontologies of the fictitious entities that the philosophical tradition, over the course of its historical development, designates with names like “man,” “subject,” “individual.” For what the universal categories share is the neglect of the “uniqueness” of those human beings.¹

For Adriana Cavarero, the voice is essentially unique, springing from a specific and corporeal mouth. It implies a corporeal selfhood, in that there is the passing and breathing of air in one’s throat and a singular body in action.² I will be using the term “one’s voice” to distinguish it from the voice as general and abstract. The voice I am referring to is the voice emitted by a singular and corporeal selfhood. I prefer the term “one’s voice” because it slightly downplays the sense of possessiveness of the voice, whereas in the term “one’s own voice” the emphasis is more explicitly on ownership. The voice is not possessed by one but it is rather constitutive of who one is and one’s uniqueness. One’s voice is revealed in the exposure, when one speaks, and thus it expresses a situation of relationality and plurality.

The voice carries possibilities for thinking about sexual difference, ontology, politics, subjectivity and ethics. From a traditional and essentialized sexual difference perspective, the subject reflects the masculine traits of being, whereas the feminine subject is marginalized and objectified by being associated with the body. A focus on the voice, however, implies paying attention to those traits of our subjectivity that are stereotypically associated with the feminine. The gendered traits become unraveled and one’s voice shows that those traits are part of the uniqueness of anyone. Thus the voice allows us to go beyond gender and sexual difference distinctions by touching the radical uniqueness and materiality of each of us.

Adriana Cavarero’s thought comes from a position of sexual difference. She was originally part of a group of Italian scholars called Diotima who chose to cut themselves off from the language of men, took a separatist stance and worked to construct their own language, valorizing the originality and strength of women as a group.³ Cavarero began to deconstruct the text of Western philosophy, to work both with and against language. Her focus on the voice as corporeal and singular represents her original position on sexual difference.

In ontological terms, the voice carries a relational and anti-metaphysical ontology because it occurs in communication with another and belongs to a unique being made of flesh and bones. The uniqueness of selfhood always resonates in the voice: one’s uniqueness is always revealed when one speaks, because one’s voice is always different from another’s.

The ontology of one’s voice provides an anti-metaphysical strategy, capable of re-vocalizing Logos, politics and the law. One’s voice interrupts the symbolic and normative order of thinking.⁴ The ontology of the voice also contains radical political aspects because it is capable of giving one the possibility of speaking with a unique voice, together with other voices, as opposed to the sovereign, general and devocalized voice of current politics. One’s voice offers a different way of speaking in law, too, going beyond the voice in terms of consent. Consent in law refers to a rational individual, thought of in terms of a divided subjectivity. I will say more in relation to consent in Chapter II.

In terms of subjectivity, from the Cavarerian perspective on voice the current legal subject is cut off and divided from her uniqueness, corporeality and relationality. The voice, understood as one’s voice, exemplifies precisely the excess, what is cut out from our subjectivity and a moment beyond the general naming. One’s voice and thus singularity, corporeality and relationality, are those unique aspects of the self that are excluded by the normative symbolic order and its related subjectivity. Those aspects become superfluous and are not taken into consideration by the symbolic framework. In legal discourse, the voice in terms of singularity is not spoken.

Law as a discourse of the symbolic order speaks the voice of the general and universal legal subject and is unable to include singularity and uniqueness. Law also reflects the liberal perspective of an autonomous and independent subject who enjoys rights; whereas speaking in one’s voice implies awareness of vulnerability, connection, relationality and leaning toward others. Our voice has a profound relationship with our selfhood and the way we imagine our subjectivity.

Finally, ethically, the voice – being an expression of singularity and corporeality – connects to vulnerability. A focus on the voice leads to awareness of one’s vulnerability and that of others. Such awareness leads to the possibility of ethical conduct beyond the justice of law. The justice of law, in fact, requires punishment in the case of inflicted wounds because the law insists on restoring balance, on what is right, after an injury, focusing on a specific type of righteous and independent subjectivity. Hence I explore the possibility of speaking through an ontology that resists the cuts and divisions operated upon the subject and the reproduction of violence. Such an ontology reminds us that although one may be constructed in law and other symbolic discourses as sovereign and righteous, there is an aspect of one’s existence that does not belong to such a formation of subjectivity.

Cavarero’s insights on the voice call for a reflection on a series of questions, allowing us to rethink resistance. Can such a space of resistance be applied to the law? Would this space be a moment of suspension or an engagement with law and institutions? Can the focus on the voice provide an ontology that overcomes the cut and separations of the legal subject? What type of ontology would this be? Would this approach have significance for the division of essentialized sexual difference? Can a critique and resistance that starts from the voice be applied to empirical and gendered contexts such as female genital cutting (FGC) and sex work? Is there an implication in terms of ethical responsibility? What would this mean for law and justice?

The focus on the voice and on those juridical questions attempt to continue the critique of law as developed by the critical legal studies movement and its feminist thinking. The focus on the voice relates also to feminist scholars within critical legal studies, in that it has a similar intention of deconstructing the masculine and abstract subject of law. The recent book edited by Maria Drakopoulou, Feminist Encounters with Legal Philosophy, illustrates, for instance, how the interpretation of established legal texts has been the most significant form of feminist critical legal practice.⁵ Working with texts has allowed the exposure of the patriarchal and phallocentric nature of law and women’s exclusion from the legal symbolic order. In Feminist Encounters with Legal Philosophy, legal texts are interrogated in order to identify their male and patriarchal thinking. In “Samuel Pufendorf, Feminism and the Question of Women and Law” Maria Drakopoulou scrutinizes the critical insights offered by feminist political and legal theory, whereas Patrick Hanafin, in “A Voice Beyond the Law: Reading Plato, Reading Cavarero,” employs Italian feminist philosophy and Cavarero’s theory to read law in a different way.⁶ In the UK, other critical legal scholars have engaged with feminist critique, operating a sort of deconstruction of the law. In Judith Butler: Ethics, Law, Politics Elena Loizidou points out, for instance, how the feminist work of Judith Butler on the livable and viable life can question the legal subject itself, whereas in her book Law and Literature: Journeys from Her to Eternity, Maria Aristodemou has highlighted the similarities between literary and legal texts as a means to better understand the origin of law and literature. By touching the origins of both texts, she shows the tension between law and literature and underlines how jurisprudence can overcome law’s formal structure and become more a cross-disciplinary investigation. In her view literature represents an ancient mode of connecting with what is alive. There is therefore in her work the search for what it means to be a legal subject in terms of a living human being, man or woman.⁷

With the influx of postmodernism and deconstruction, British critical legal studies has moved away from Marxism, rethought the terms of critique and connected more deeply to the continental tradition.⁸ The main philosophical tendencies are informed by the works of Freud, Foucault, Lacan, Levinas and in particular Derrida and deconstruction.⁹ There is an attempt to criticize the legal discourses and their texts by focusing on what has been repressed and excluded, and thus to have a more diverse voice. The Derridean deconstructive approach has meant, for some critical legal scholars, the analysis of the law as a pure text and as a sign.¹⁰

Peter Goodrich and Costas Douzinas are among the critical legal scholars who have approached law as text and language. For instance, in his work Languages of Law Goodrich gives the example of the annunciation, which is described as the process whereby the Holy Spirit is announced as present, the divinity in the womb of the virgin mother of Christ.¹¹ Then Goodrich goes on to compare the legal tradition to a secular version of Christian morality.¹² Law uses speech to announce something similar to the Holy Spirit. As a consequence, law becomes absolute Law and life gets denied.

Goodrich’s critique of the metaphysics of the legal is also inextricably linked to a feminist critique of the patriarchal truth of the law. For instance, in his book The Law of Love Goodrich counterposes normative law with amorous law. Contrary to rules, rights and obligations, in amorous law there are neither absolute rights nor individual autonomy capable of excluding a lover and it is possible to suspend judgments in favour of erotic conversations.¹³ In another essay, “Gender and Contracts,” Goodrich also reflects on two different conceptions of relationship, namely the legal proprietary and restrictive contract and an agreement that is instead expressive of love. This latter attaches to a relationship occurring at a particular time and in a particular place.¹⁴

In his metaphysical critique of the patriarchal text of law, Goodrich follows the Derridean perspective, where speech appears to carry the presence of metaphysics whereas the text seems more distant from it.¹⁵ In a grammatological sense, the legal text reiterates a sign of the sign that is already dead and thus more suitable to be studied by deconstruction. Studying legal texts can lead to an understanding of this denial of life. Through repetition, the text’s attachment to the metaphysics of presence can be uncovered.¹⁶ Goodrich says:

In interpretative terms, the text sees nothing, it hears nothing, it says nothing. It runs scared, scared of its desire, scared of the po...