Feminist Legal Studies (2006) 14:271–291 Ó Springer 2007

DOI 10.1007/s10691-006-9038-6

ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

BEFORE IDENTITY, GENDER AND HUMAN RIGHTS

ABSTRACT. This is the beginning of an exploration of before as the thesis ‘before’

(temporally) and ‘be-fore’ (spatially) difference. Before denotes the origin and the
desired destination. Before (in the double sense of ‘before’ and ‘be-in-the-fore’) opens
up a space of pre-difference, of origin and of forgotten memory, as well as a space of
desire, objective, illusion of teleology, unity, completion. Applied to the two domains
of Human Rights and Sex/Gender, the space of ‘before’ yields two slightly different
vistas: in human rights, a premodern, functionally undifferentiated society which had
to invent human rights as its safeguards of functional differentiation. In Sex/Gender,
‘before’ brings a self-referential construction: that of ipseity, as the form of identity
beyond comparison that does not play with id but with ipsum. Ipseity is inoperable
but not useless. It is inoperable because it cannot be observed from anywhere
without suffering rupture. It is not useless because it offers a ground for the recon-
ceptualisation of difference, both through awe and desire.

KEY WORDS: difference, gender, human rights, identity, ipseity, Luhmann,

paradox, utopia

BEGINNING

Every beginning is arbitrary, since there is nearly always something

before the beginning that the one who begins ignores or chooses to
ignore. A small, self-indulgent example: I had a dream of my mother
(in a red dress) just before I woke up this morning. Now that I am
having my breakfast, mother, dress and dream are already behind me.
Mother is always before my breakfast. But as I gulp noisily my
morning tea, Mother (wearing nothing that remotely resembles a red
dress) stands before me, dis/approving of my breakfast habits.
Mother is in front of me, stands before me reminding me of my dream.
Whatever I have for breakfast, Mother remains before me.
Mother aside, the focus of this article is precisely an exploration of
the arbitrary but necessary rupture between the two meanings of the
word before: on one hand, what can be prima facie viewed as its
temporal dimension, which denotes that something has come ‘before’
me and indicates a certain relation of temporal priority (has come
272 ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

before me in a generation, in a queue, in a bidding); and on the other,

what is readily described as its spatial dimension, which refers to
something that stands ‘be-fore’ me, that is ahead of me, in front of
me, facing me, and to which I wish to arrive.
I employ these two seemingly antithetical meanings of before
together in an attempt to conflate, on the one hand, the origin of
memory, as expressed by the ‘before’ that is prior to me, and on the
other hand, desire as the result of the priority of origin (but also the
origin of priority) in the sense that whatever I desire and seek is
always situated in front of me, ‘be-fore’ me. While this is done to
some extent in abstracto, the focal point of the essay is the application
of ‘before’ in the two domains of Human Rights and the sex/gender
division, with an aim to revisit the present prioritisation of a male
discourse within and outside the confines of human rights.
The journey ‘before’ human rights and sex/gender leads to the
discovery of an atopic (in the sense of unclassifiable and perpetually
self-renewing) space of identity. For this primordial form of identity I
use the term ipseity and I link it with the totality of non-difference. In
its inobservability, the space of absolute and originary annihilation of
difference becomes a space of production of awe, which shakes up any
identity formation. This totality is further conceptualised as the origin
of desire, in the sense of tautology between ‘before’ and ‘be-fore’. For
relative clarity’s sake, ‘before’ here stands for the temporal aspect of
the concept, the one that lies behind me; ‘be-fore’, the spatial, the one
that stands in front of me; and before signifies the utopian unity of
both aforementioned meanings. The total space of awe (schematically:
‘before’) and desire (schematically: ‘be-fore’), namely the totality of
before (as the space that lies before not just difference but before the
difference of difference), shakes up the prioritising methodology and
opens up an opportunity to abandon existing distinctions and rese-
miologise gender and human rights discourse. The purpose of this
journey is to introduce a pre-ontological space of utopian dimensions,
which will operate as a canvas on which further reconceptualisations
can be projected more meaningfully.
My methodology is eclectic: I am using (and twisting) Luhmann’s
theory on human rights in order to gain a conceptual understanding
of a space before human rights. I am also employing deconstruction,
identity politics, Hegelian synthesis, psychoanalysis, all in various
forms and levels of obviousness, in order to construct a theory of
paradox within the specific context. The eclectic use of the references
 BEFORE IDENTITY, GENDER AND HUMAN RIGHTS 273

is a reflection of the poetics of reading: the reader is invited to con-

struct a path, parallel to the one described here, based on personal
associations and references which are hinted at but not exhaustively
consolidated in the text. The reason for this is manifold: in a bout of
performativity, the text itself sheds away any need for epistemic
categorisation, and looks for its ‘identity’ in the leaps between the
various methodological positionings. In so doing, the text sets the
map for the journey in the space of before, pointing out in advance
that any theoretical stability is simply an illusion of comfort shattered
before the pre-ontology of before. By not succumbing to one episte-
mic paradigm and by purposefully confounding the boundaries
between systems theory, psychoanalysis, identity politics and decon-
struction, the text desires to melt its epistemology and ontology in
one incestuous embrace, as part of an attempt to augur the collapse
of existing prioritisations after the encounter with the space of
before.1

BEFORE

The two dimensions of before, namely ‘before’ and ‘be-fore’, work

together in their antithesis. They determine the way the word before
stretches from memory to desire and back, without losing track of its
elusiveness. Before maps its dimensions and guides both utterer (the
one ‘before’) and receiver (‘be-fore’) deeper in its différance. This is
because the word loses itself in its competing dimensions, and the
signifieds mutually and circularly annul each other. The working of
the word is a spanning of spatiotemporal dimensions which extends
from the Socratic atopos as an originary moment, the always new and
always unclassifiable origin (Barthes, 1990), to the Utopian topos as
the place of no-place, the ever-receding end of the journey. The two
topoi circularly feed into each other in a relation of paradox.
Paradoxical or not, circular or not, one carries on along the same
pattern. Thus (and this is the pattern), the two before are separated
at conception, because otherwise (if one does not systematically

1
The space of before, as opened by Walter Benjamin’s dealing with Kafka’s short
story Before the Law, has been visited by Derrida (1992) and Agamben (1999) in
relation to the messianic. While I have refrained from explicit references to it, the
messianic in the Derridean sense of the thing that cannot wait, crops up everywhere
in the text. For a differently de-contextualised analysis, see Philippopoulos-Miha-
lopoulos, (2007).
274 ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

disregard the tautology between ‘before’ and ‘be-fore’), there could

never be any question worth asking: one would know everything
there was to know. Hence the arbitrary but necessary rupture
between the two. Indefatiguably, origin inflates memory and memory
breeds desire. Memory is the link between these, producing asym-
metries while enabling being and becoming to flow within each
other.2 Thus, ‘before’ constructs an edifice of memory, the locus of
the absolute beginning, the primordial soup of my dream. In its turn,
‘be-fore’ climbs on said edifice and erects on top of it a cathedral of
utopian desire right in front of me. The journey from ‘before’ to ‘be-
fore’ is a tracing of the memory from ‘be-fore’ to ‘before’. There is a
continuum between these seemingly opposing extremes. In that
continuum, desire and its origin can be located and, should one
wishes to, causally explained: for what is ‘chemistry’ other than an
inadequate term, which, nevertheless, seems more appropriate than
the rather eccentric and possibly uncomfortable term ‘familiarity’?
The ‘unknowable’ of the link between lovers is reinforced by the
generic and non-descriptive word ‘chemistry’, just as the ‘knowable’
but possibly repressible reason for which we choose the lovers we do
is illuminated by the term ‘familiarity’ (‘I miss you but I haven’t met
you yet’ sings Björk). ‘Familiarity’ links precisely these two dimen-
sions of before: the origin and the desire, the behind and the ahead of
me, where I come from and where I want to arrive: I want you
because you are familiar to me (because you remind me of someone/
something that I have loved/hated; because you are ‘before’ me and I
want you to be-for-me, to be ‘be-fore’ me); and even when you are
not familiar to me, I want you precisely because of that – but in every
case, the measure for what will stand ‘be-fore’ me is the ‘before’ of my
origin.
So, why would one want to undertake the journey between the two
sides of before? The flow is uroborous, and its only benefit seems to be

2
Any meaningful analysis of memory is practically impossible here due to the
usual limitations and the different focus. For more, see Chapter 6 of my Absent
Environments (2007), where a discussion on memory from an autopoietic point of
view can be found. At this point, however, suffice it to describe memory as the
present linking of a redundant and an imagined state of understanding the past (a
sort of ‘being’ and ‘becoming’), which begets a future-present desire. Memory is the
production of difference between an obscure ‘before’ and an equally obscure ‘be-
fore’, which translates at present as the unity of intelligence (and one would be
tempted to venture a construction of intelligence on the basis of before – but this is
clearly beyond whatever this article is even imagining itself capable of doing).
 BEFORE IDENTITY, GENDER AND HUMAN RIGHTS 275

a hermeneutic one, of why aim at the specific utopia. But isn’t this
best left to psychoanalysis? Even so, it seems that one has to
undertake that journey, however backwards one seems to be heading.
This is not about the importance of history, nor about the necessity of
finding one’s origin. This is sheer futurology: I carry on by going
back, by revisiting the atopos anew and by baptising my utopia
according to what I bring back from the origin. In other words, going
‘before’ is a pragmatic step towards constructing a ‘better’ ‘be-fore’.
The question, thus, can be refocused: why is the utopia that presently
stands ‘be-fore’ me inadequate? Why not choose a different utopia
out of a fan of innumerable constructions that are equally possible –
although not necessarily equally probable? Why prioritise this over all
those? This is the crux of the matter indeed: the rupture between
origin and desire is the source of every (inadequate) prioritisation.
The difference between Eden and End is the origin of prioritisation
and the locus of responsibility, blame and guilt. However, bridging
that difference is not the purpose of this article: in fact, the purpose
here is to go before the rupture and pose some questions: can there be
End without Eden? Can there be humanity before the symbol? Can
there be humanity without its being marked by and against itself?
Can there be a space of no difference before the word? And can this
space remain confined in the barbican of its unmarked utopia?
The journey between the two sides of before entails a double
construction. On the one hand, the construction of the memory of
desire (which is the outcome of going backwards ‘before’ me); and on
the other, the reconstruction of desire on the basis of a prioritisation
of origin (the outcome of envisaging what stands ‘be-fore’ me in its
utopian ideal). The journey that this article undertakes is one of
constant return. I start from visiting the past. Which means of course
that I remember (presently) the past (always in the present), and on
its basis I construct a memory, a passing presence or simply the
reinstatement of an impression. During this part (that of ‘before’), I
construct the memory of desire (the latter already seeping in, a not-
so-distant echo of the next part of the circularity). The locus of such
memory is sought ‘before’ two concepts: Human Rights, and the sex/
gender difference. I end up in the atopos of the unmarked space, the
luminous locus of ipseity as the forgotten and irrevocable mother of
identity. From there, I return. In fear and trembling desire, I spread
my findings ‘be-fore’ me as a map that guides me away from ipseity
and safely into the embrace of comparisons, horizons and choices.
276 ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

Illusions become my best friends while utopia looms in front of me, a

mirror reflecting what lies behind me. But this utopia is a truly dif-
ferent space, an outcome of the encounter with the pre-ontological
space of ‘before’, a locus of desire constructed on the basis of an
origin without trace that resemiologises existing prioritisations,
thereby escaping the usual fate of utopia as a simple critique of the
present. But I can never dwell for long on this utopia that I have
constructed ‘be-fore’ me. The journey calls me back, to the space of
‘before’, and then expels me again back to ‘be-fore’. It is that journey
between atopos and utopia that I reconstruct (the circularity of
before), a paradox that revolves around itself without respite, and
stands before me as burden, choice, horizon, limitation, destiny,
authority.

‘BEFORE’ HUMAN RIGHTS

A society prior to the invention/discovery/recognition of human

rights is not simply a society without human rights. Although human
rights could not have been described as ‘rights’ or ‘human’ at a time
before the ability to describe them as such had emerged, society’s
turning toward itself at a moment of functional differentiation,
resulted in the semantic recognition of human rights. Indeed, if
human rights are given simply on the basis of their subjects being
‘human’, then one can only talk about ‘recognition’ (Douzinas, 2002)
in the sense of something that has been (latently or visibly) present all
along. In this respect, human rights have always already been around,
certainly with no attachment to humanism or to rights discourse as
one would be inclined to describe them nowadays, but with a view to
a retroactively sanctioning universalisation. It remains, however, that
a society before human rights is a society linked with a fearsome lack
of onomatology: lack of name is, in this case, lack of the named
(Villey, 1983). The fear originated in the individual, and extended to
the rest of society who was facing itself in all its monolithic dis-
placement. Until the arbitrary point of modern differentiation, where
society was epistemologically observed to be separated into different
systems with different functions (law, religion, politics, and so on),
society was a primordial soup where only segmentary and
hierarchical divisions could be observed (Luhmann, 1995). At the
height of modernity, law, religion, politics, economics, science etc.
were to recognise their limits (while, arguably, at this instance of
 BEFORE IDENTITY, GENDER AND HUMAN RIGHTS 277

postmodernity, the same systems recognise their limitations. While

the latter may belong to the psychologically projected sphere of
systemic awareness, the former is a fact, albeit contestable.) Func-
tional differentiation is the bastion of contemporary societal orga-
nisation, and a basis for any expectation of reliability on behalf of the
system: it is because we can reasonably expect that civil law will not
normally succumb to religious beliefs or economic manipulation, that
we can still trust the court to come up with a legally enforceable
judgement (however satisfactory or unsatisfactory this may be to us).
Society ‘before’ human rights is an object of schematic description,
which makes sense only after (‘be-fore’) human rights. The two before
enable one to construct a relatively insular idea of what society must
have looked like at the time before human rights. Luhmann’s (1995)
arbitrary point of societal differentiation into separate function
systems is a good point to launch both a perambulation in the
‘before’ and a utopian stare into the ‘be-fore’. Luhmann’s sociology
marks societal continuity with a division between the premodern and
the modern. The former is characterised by a hierarchical organisa-
tion of compartmentalised subjective status, whose overcoming was
practically impossible. One remained in the social position in which
one was born, melting away in the hierarchical delimitation of one’s
origin and, hence, one’s future. ‘Subjective’ rights, in the sense of ‘‘of,
and because of, the subject’’, were superfluous in such immovable
social conditions since individuality and social position were identical
(Luhmann, 1999; Verschraegen, 2002). The passage from premodern
to modern society is characterised by an obligatory abandonment of
such stratification, and the construction of separate function systems.
The said abandonment has been facilitated by the absence of an
overarching authority of legal, political or divine calibre. Subjective
rights emerge as a vehicle that enables the ‘subject’ to pick and mix
social positions, thus reinstating the universal impact of human rights
while emphasising the possibility of subjective differentiation. Human
rights appear as the compensation for the loss of a relatively stress-
free yet claustrophobically fixed social position (Luhmann, 1993). At
the same time, human rights are the mechanism that maintains
functional differentiation by preventing any one system from
colonising another – say, politics colonising law and dictating legal
decisions that cannot be accommodated by a legal system complying
with the rule of law and respecting human rights. In other words,
human rights can be seen both as the ‘grid’ that separates systems and
278 ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

keep them this way, and the ‘vehicle’ that moves along the lines of the
grid and allows for the individual to alight at any of the said systems
without being fixed to any of them.
Luhmann’s theory of human rights is an appropriate outsider to
the usual discussions on human rights, mainly on account of its
recasting the issue in a fundamentally differentiated manner. Looking
at human rights from a systemic perspective, which internalises
hierarchy, power and responsibility (Schütz, 1994), entails a resemi-
ologisation of the habitual issues of universal/particular, empiricism/
constructivism, social/individual, and so on3. The above discussion,
although oversimplified, reveals several points of interest to the
present analysis. First, it depicts society before human rights as a
functionally undifferentiated organisation that relied on a randomly
inherited subjective positioning, and an entirely mapped out history
and potential of personal identity. Premodern society features as an
amorphous mass of religious, scientific, political, legal and economic
mélange that makes any movement impossible. The space of ‘before’
looks daunting, impermeable, obscure, unenlightened.
Interestingly, and this is where the second point of relevance
arises, this mass is only shaped (even in its amorphous state) by the
epistemological transition from the undifferentiated to the differen-
tiated. The relative line that separates them is a moment of episte-
mological necessity (hence, arbitrary) that divides an otherwise
unified space into two. Thus, the state before difference is entirely
dependent on the state after difference, for it is only after the foray
into difference that Luhmann, or anyone else for that matter, would
possess the epistemological tools and methodological suspicion to
revisit the space before difference and describe it through the glass of
difference. To put it otherwise, the first part (that of the undifferen-
tiated) can only be brought forth after a dip into the second part (the
differentiated). And while the undifferentiated is what has happened
‘before’, the differentiated is the space that stands ‘be-fore’ us, an
ideal positioning where, not only all systems are securely differenti-
ated, but also systemic colonisation is (ideally) kept in check through
the versatile operation of human rights. It is clear that ‘before’ and
‘be-fore’ come together in one space of undifferentiated ideality
(before), where the terror/desire of what has been, is transposed to the
desire/terror towards what may be in the future-present. It is only

3
For a Further analysis of Human Rights from a Luhmannian/deconstructive
point of view, see Andreas Philippopoulos Mihalopoulos, 2007, chapter 5.
 BEFORE IDENTITY, GENDER AND HUMAN RIGHTS 279

through the primordial marking of the space in ‘before’ and ‘be-fore’

that the present arises as a fleeting, arbitrary and always deferred
demarcating line. And if one (contra Luhmann, 1998) accepts the
further division of postmodernity, then modernity is always the
demarcating line of limits, while postmodernity remains the utopian
‘be-fore’ as the epiphany of limitations.
The last point to which I would like to draw the attention of the
reader is that of the paradoxical appearance of human rights as both
separating grid and connecting vehicle. Of course, there is nothing
especially new to this paradox. Human rights discourse has been char-
acterised by the utopian echoing of the universal into the particular
(Douzinas, 2000), and this is exactly what the metaphor of grid and
vehicle expresses. What is new here is the contextualisation of the par-
adox as the demarcating act that splits the undifferentiated into two.
Seen in this way, human rights retain their relevance but conditioned by
their two extremes of a dystopian universality that materialises in
undifferentiated uniformity, and a utopian particularism which ideally
(but not feasibly) enables everyone to reach one’s full potential mobility.
The three points, namely the daunting space before difference, the
epistemological connection between ‘before’ and ‘be-fore’, and the
paradox, will return shortly. But the voyage into another ‘before’ has
priority: the space ‘before’ sex/gender differentiation will be visited in
the next section, and the above three points will be seen in an alto-
gether not-too-different light.

‘BEFORE’ SEX/GENDER

The importance of reaching ‘before’ the division sex/gender is exem-

plified by the problematic endeavour to conceptualise any significant
difference between the two. This does not mean that they are the same.
It simply denotes the conceptual futility of a meaningful division that
could go far enough into the exploration of difference and be of some
use. No doubt, historically, the trajectory from one to the other, and
then back via the backdoor, has been both instructive and arguably
necessary. And there is little doubt that the itinerary has had several
seminal stops: first, sex as the universalising difference (in the sense of
Atkins and Hoggett, 1984); then, gender as the vehicle for multiple
social positioning (e.g. Bartlett & Kennedy, 1991); and now, the
unfolding of gender, as either simply one out of an array of categories
(Spelman, 1990); or as a power offspring (MacKinnon, 1994); or
280 ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

indeed as a deconstructible signifier that variably operates together

with a space of orientation or a sexed language (e.g. Olsen, 1990;
Irigaray, 1994, 1993; Cornell, 1998; Cixous and Clement, 1986). This
development of notions and their application has served, and still
does, various purposes in the theory (see Lacey, 2004). But there is
nothing especially constructive about this anymore: the question
whether the compared quantities are same or different is obsolete. The
division itself between sameness/difference has reached an unpro-
ductive impasse, since it is transparently couched in the discourse of
sameness. This can be observed both in the strict ambits of the femi-
nist theory, as has been convincingly shown by Cornell (1999, esp.
chapter 3) and Butler (1990, 2004), as well as in the greater identity/
difference discourse, which, itself being significantly fed by its subset,
i.e., the feminist sameness/difference discourse, finds itself in compa-
rable need of rethinking (Ford, 2002). But such rethinking cannot
come from the existing terminology. Any attempt to a reconceptual-
isation will have to admit its defeat, suspend itself, and search else-
where: ‘‘The identity is in suspense...(T)he utopian element is
ultimately a component of identity’’ (Ricoeur, 1986, p. 311).
Utopia, however, requires an understanding of its paradox (an
ideality, which is lost as soon as found). Any comparison, any par-
allelism, any mutual exploration of even multiple aspects of difference
are attempts to inscribe afresh the terrific paradox of ‘same because
different’ and vice versa (Philippopoulos-Mihalopoulos, 2005a).
Regardless (or precisely because) of the impasse, the need for the
discussion to carry on is indisputable – and I would not dream of
offering an end to it; but perhaps a new beginning in the form of,
what else, a looming return. This fusion can be sought before the
difference of difference.
The move ‘before’ the relatively narrow ambits of the sex/gender
difference has already been performed a few times (e.g. Butler, 1990;
Berlant & Warner, 1999), and can be without too much trouble
construed as a move beyond sex difference, gender difference, or even
societal prioritisation of the existing binarisms between woman and
man, female and male or straight and gay; thus, the term ‘difference’
is now to be read as the limited signifier of an elusive signified: to put
it in Derridean parlance, the diffe´rance of ‘gender’ includes and pre-
cludes its difference to sex, and its deferral with regard to all the other
candidate categories (race, age, sexuality, ethnicity, class, etc). While
it can be convincingly argued that the above has been conceptualised
 BEFORE IDENTITY, GENDER AND HUMAN RIGHTS 281

successfully, the present project sets for itself a slightly more

adventurous goal: that of looking for the space ‘before’ the difference
of difference, a space beyond the superimposition of dialectics, and
well within the inoperationality of negation of identity. The difficulty
and novelty of the present endeavour in relation to previous attempts
to go ‘before’ difference is that here one is required to think beyond
the usual ‘pre’-gendered/sexual/etc., and into the pre-subject, pre-
alter, pre-invitational, pre-observational, pre-linguistic, pre-evolu-
tionary, pre-theological, pre-theic, pre-thetic. The quest for such a
space presupposes a semi-epistemological level of exploration, con-
ditioned indeed by its very impossibility and its inbuilt promise of
return to the habitual difference/non-difference discourse (which is
subsequently constructed as the space ‘before’ difference, e.g., the pre-
gender/sexual/sexuate etc.). But just as ‘before’ leads to before, in the
same way ‘before’ difference leads to ‘before’ difference of difference.
This means that, although the quest goes before and beyond theories
and politics of difference (even ‘before’ difference), it does not con-
stitute a criticism of them, since their contribution is essential to the
endeavour, both in their role as launching pad and next destination.
What is there ‘before’? In the human rights part of the quest, and
according to Luhmann, the amorphous mass of a (functionally)
undifferentiated society defined individual identity as a fixed social
position. Likewise, the space ‘before’ difference reveals an individual
identity conditioned by its fixity as absolute in the sense of incom-
parable, unobservable, unmarked. The space ‘before’ difference of
difference is an uncontainable void that escapes description or com-
parison, and lends itself only to banal metaphors. Going ‘before’
uncovers the impossibility of observation: the space of ‘before’ is one,
undivided, absolute, without a vantage point from which it could be
observed. No one can open the door (to use a banal metaphor) and
look into it: no one can introduce the outside to it, or indeed step in it
and observe it. Lacking the line that would divide it into observer and
observed, the space remains inaccessible to any observation. In this
sense, the space ‘before’ difference is an absolute space, whose
deferral is immobilised by the diminution (to the point of total,
vertical and irretrievable erasure) of the spaces between the elusive
signifieds. In such a pre-edenic space, no line can be marked and no
observatory can be delineated; for then, the voyager will be turning
her back to the space of ‘before’ and will be instituting difference/
similarity, observation, description, blind spots that can never be
282 ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

observed, object and subject divisions, even desire, maps, direction,

teleology, divine überobservers and hierarchies of truth: in short, the
mechanics of identity. But this is exactly what is missing here, with a
vociferous absence that swallows any macho name-giving capacity
(Dworkin, 1997): there is no one to assume or confer identity.
Identity designates as well as categorises (Bucholtz et al., 1999).
Identity denotes who I am, but also where I belong. Having an
identity means that I am part of the recognisable unities of a dis-
course, I have a name and I can be called by that name: identity is the
name I call myself. Etymologically, identity derives from the Latin
pronoun is-ea-id, which translates as he-she-it: a point of identifica-
tion, both by the subject herself, but also, and perhaps decidedly, by
the other (Hegel, 1967; Taylor, 1994). It is a personal as well as a
deictic pronoun, a marking line of connection and division, a border
between uniqueness and acknowledgement of commonality: a faint
line that fluctuates between, on the one hand, the obsolescence of
identity in the absence of the other, and on the other, the obsessive
desire for self-definition. Above all, identity is the rupture between
the self and its self-description, and for this, the very possibility of
description of any sort, the tool of observation, the line that marks
the abyss from its mirror. Is-ea-id become idem-eadem-idem: a
reflection of itself in an elevated marriage between the self and its self-
description: I am me, and however different, I cannot be without me.
In a space where there is no one to observe ‘me’ and confer identity,
no mirror on which ‘I’ can admire its reflection, identity is devoured by
ipseity: a monad of self-definition, a unique beyond comparison, a self-
constructing, self-perpetuating and self-referential construction that
would bring awe and trembling if it could ever be observed. Ipseity
draws from the self-referentiality of ipse-ipsa-ipsum as the ultimate self-
affirmation (ego ipse: I myself), the uncontrollable and incomparable
expanse of the absolute unity.4 ‘Before’ difference of difference, ‘before’
humanity, ‘before’ the beginning, the origin that is not ‘origin’ since
nothing of it can be remembered, dreamt of or reconstructed.
The premodern space encountered ‘before’ human rights reap-
pears here in its daunting unobservability. Mere contemplation of
ipseity resuscitates the solitude of the moribund, and before death
4
Ricoeur (1992) employs idem-identity and ipse-identity as the concordance be-
tween identity of the self and identity of the same. Ricoeur sees an overlap between
them – here the overlap has been reduced to a constantly deferred tautology between
the two. See also Nancy’s (1999), following Bataille, ‘plural’ ipseity, and Henry’s
(2000) theo-phenomenological ipseity.
 BEFORE IDENTITY, GENDER AND HUMAN RIGHTS 283

(indeed before the union between awe and desire, the ultimate
moment of satiety) prioritisations are shaken, homologation is de-
morphologised (Irigaray, 1984), subjected and subjugated become
triumphant tentacles of an ipseity that can never look at itself in the
mirror. Precisely on account of their unobservability, these spaces
(‘before’ the difference of difference) bring with them a foundational
questioning of prioritisations. What is there to prioritise if there is
only one, and this ‘one’ is never in par with itself, it is never one as
absolute or one as other or one as self, but one as no-one? What is
there to do in a space with no shadows? Indeed, how can such a space
operate or be operated? The answer is simple: it cannot.
Inoperability is less of a disadvantage than it may initially appear.
This will become clearer after I have spelt out what the space of ‘before’
is not. To start with, it is not an essentialist space, because its very
inoperability renders it inessentialist: thus, the notion of ‘before’ can
escape to an utopian realm, deprived of any essentialist pretence that
would be remindful of a supposed shared core of personhood, of which
radical feminism has been criticised (Spelman, 1990; O’Neill, 1993).
Indeed, any essentialist streak runs dry with the fugue to identity as the
necessary return to operability. As such, ‘before’ is inoperable, ineffa-
ble, indescribable, unsynthesisable: a Hegelian Sittlichkeit with
nowhere to look back from. If such is our common core (if the destiny of
the core is to be common, if common is a withdrawal from community),
it is perhaps destined to remain a tautology which no metaphor can
break open, no signified can describe, and no prayer can reach. Its
meaningfulness remains fallibly unreliable.
Likewise, the space ‘before’ difference does not promote a pre-social
idea of the individual in the way liberal feminism seems to be doing
(Nussbaum, 2000). Although the direction in both cases is, as it were,
backwards in time, ‘before’ difference does not lead to any formal
conception of equality that operates regardless of power structures. In
fact, it does not refer to any idea of equality, or indeed power. The space
‘before’ difference is a necessary stage of abstraction, which only after
and precisely because of its being escaped, does it allow the trait-
attaching process (inevitably in its turn imbued in social significations).
But until then, the space of ‘before’ offers nothing socially meaningful.
Its meaningfulness arises in absentia as the shadow cast over gender
prioritisations after ipseity has been encountered and deferred.
Finally, ‘before’ neither degenders, nor revalues the feminine, as
Nash (2002) has eloquently put the liberal/radical dichotomy.
284 ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

Agreed, if seen in isolation, ‘before’ seems to have nothing to do with

gender – thus, one could assume that it is closer to a liberal idea of
resemiologising the gender dichotomy, or even advocating some sort
of gender neutrality (Lacey, 1998). However, ‘before’ can never be
considered in isolation – and this is where the second point of the
human rights exposé becomes relevant again. ‘Before’ and ‘be-fore’
occupy the opposite ends of the same spectrum, and the oscillation
between them is the inevitable return to the escape of before. The
space of ‘be-fore’ emerges as the nest of desire, but only through and
after the escape from the origin, the awe of ‘before’. It may initially
seem that the escape from ipseity leads to identity; but identity (itself
a prioritisation) is of the present, in the middle as it were, of the
trajectory between the two extremes. Identity is the line that
demarcates the rupture between ‘before’ and ‘be-fore’, and, as
demarcations go, it also enables continuity between them. Both
continuity and rupture are epistemological tools of rapprochement.
On the basis of these, appearing as a boundary between the extremes,
‘before’ and ‘be-fore’ come together in an arbitrary marriage of
before. It is to this fragmented unity that the text now turns.

BEFORE

The space of before has been encountered elsewhere in the theory.5 In

its most generic form, it stands for the space of ignorance, any
interpretation of which is based on a projected hypothesis in the form
of a demarcating line: either demarcating the space from other spaces,
or attempting to demarcate the space itself into observer and
observed. Transcendental or Cartesian, the space remains on the
other side of any demarcation, a memento vanitas of human thinking,
the echo of a collapsing Babel. In the form described here, namely as
the continuous rupture between ‘before’ and ‘be-fore’, before acquires
a quality of future desire steeped into the awe of origin. The space of
before remains inoperable, just like its two extremes contained within
its span. Before is the locus where desire is satiated and awe is
paralysing even before they are conceived; where life and death lose
their illusionary polarity; where ‘before’ and ‘be-fore’ clash with
5
To mention a few examples, Freud’s uncanny, Lacan’s real, Luhmann’s form,
Plato’s whole as it appears in Aristophanes’ monologue in Symposium, Derrida’s
aporia, and so on. These are neither syntheses nor fractures, but attempts to
encapsulate both in a difference.
 BEFORE IDENTITY, GENDER AND HUMAN RIGHTS 285

disarming fervour, and before and after life melt into one solid
ipseity.
For, what is there before ‘‘the first distinction’’ (Spencer-Brown,
1979, p. 3), the rupture that marks continuum and difference against
the primordial inoperability of chaos? What comes before the origin?
One way – the easy way – of answering this is that any first distinction
is arbitrary, any beginning is capricious. But this does not answer the
question – it simply postpones it to another level of arbitrariness.
Another answer usually comes from the Freudian idea of origin: who
is the Father (and who is the totem) (Fitzpatrick, 2001)? But again,
this is simply another bifurcation: the Father needs the Mother (the
savage, the son, the other, and so on). Finally, there is yet another
answer, usually left out because of its unsatisfactory paradox: that the
beginning is the end. Before the difference of difference (this time
decontextualised) there is nothing to describe and nowhere to
describe from. There is just an uncontainable flow towards the
beginning, any beginning, a Kierkegaardian ‘nothing’ in which
knowledge and ignorance annul each other, where ‘‘the whole actu-
ality of knowledge projects itself in anxiety as the enormous nothing
of ignorance’’ (Kierkegaard, 2000, p. 141; for further analysis, Phil-
ippopoulos-Mihalopoulos, 2005b). The space of before is where
beginning and end are fused in an undifferentiated nothing.
The inoperability of before necessarily produces the rupture
between ‘before’ and ‘be-fore’.6 Expulsion from Eden is only an
anagram in order to discover an End within. The rupture between
origin and desire makes either of the two ‘before’ inadequate on its
own. One must always be measured in its antithesis to the other. Of
course, neither constitutes a realisable position. On the side of
‘before’, ideality is revealed as a malign return to the ‘Happy Days’,
as the awe before ipseity. On the side of ‘be-fore’, all utopias on
human rights and equality of difference parade, the prioritisation of
which would remain a subject of opposition, criticism, covered con-
fidence, reliance or even indifference towards existing prioritisations,
as defined at present in a society whose beginning has never been
visited. However, the atopic space of ‘before’ offers the opportunity
for a prioritisation that would reflect the existential shock of ipseity.

6
Inoperability is converted into something operable only through its rupture.
Thus, before is divided into two fragments (‘before’ and ‘be-fore’), which, although
equally inoperable on their own, they become operable through (that is, by revisiting
and deferring) their initial form of unity.
286 ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

Thus, the version of utopia that rises on the antipodes of ‘before’ is a

‘socially baptised’ version of ipseity, one that accepts the unique as
the elevated (and only) form of individual socialisation: an ipseity
conditioned by a passage from identity. The origin of desire meets the
desire for origin. Eden revisited. But not just once: again and again,
the pendulum swings from ‘before’ to ‘be-fore’. In this oscillation, a
schizophrenic jigsaw puzzle is put together, where, although the
pieces (‘before’ and ‘be-fore’) do not match, the puzzle (before) looks
right. A malfunction? A paradox more likely.
In order to look more closely at this paradox, the previous
description of human rights can be of succour. Human rights were
shown to operate both as the grid and the vehicle that guarantees
systemic differentiation, while enabling individual access to societal
echelons. This differentiated way of conceptualising rights attempts
to reinscribe the habitual paradox in the heart of human rights,
namely the antithesis between universal and particular. Lévinas
(1997, p. 176) puts the latter lyrically: ‘‘[Human rights express]...the
alterity of that which is unique and incomparable, attributable to the
suspension of every person in humankind, which ipso facto and
paradoxically, abolishes itself so as to leave each human being unique
in their own genre.’’ Uniqueness and incomparability which ‘‘do not
make a specific or individualising difference’’ (1997, p. 176), but mark
the ideality of ipseity while taking into consideration the fact that
each one of such alterities floats in an environment of social inter-
locution (see also Derrida, 1987, 1997). Thus, particular and (or even
better, because) universal: this is the paradox of human rights at its
best operational form. However, the exact same paradox has been
described by Brown (2002) as problematic from the feminist point of
view: if too ‘universal’, generic and neutral, human rights simply
reinstate the status quo; if too specific and particularised, they
maintain the fence around identity and discrete components of suf-
fering, with which women identify and in which they remain
immured.
The same problematic emerges when looking at the gender/sex
difference. Even with meaningful entries such as ‘sexuate beings’
(Cornell, 1998), or ‘parler femme’ (Irigaray, 1985), the paradox
between the useful and the detrimental effect that such discussion can
have is rampant. If the discussion is too abstract and all-inclusive,
specificity is left out and phalogocentric structures are maintained; if
too specific, it is deprived of its summative force. Continuing the
 BEFORE IDENTITY, GENDER AND HUMAN RIGHTS 287

discussion is no longer a theoretically valid option; ceasing it is not

yet a practically valid option. There are still tangible equality prob-
lems waiting to be addressed, thought of and dealt with, and the
discussion on difference is one of the tools in which the issue is
advanced – but, also, set back.
The fact that the paradox can be seen both as positive and neg-
ative is, facetiously, in its ‘nature’. A paradox is the perpetual oscil-
lation between doxa (‘belief’) and para-doxa, a discussion that
concludes nowhere but to the gap between the two extremes. One is at
a loss as to how to deal with it and where to go from there: the
paradoxical description of before as both beginning and end is a non-
descriptive, non-conclusive answer, which remains prima facie
unsatisfactory. The obvious dealing with the paradox is, of course,
that of deparadoxification, which usually requires a prioritisation
between the two values, and a decisive blow to the gordean com-
plexity of the problem. But then, different sets of problems arise, all
echoing the initial complexity. With this, I am not suggesting that one
should surrender to the haziness of paradoxes. Nor am I suggesting
that paradoxes are good (or bad for that matter); rather, what I am
suggesting is that they can be put to use. Thus Luhmann (1998,
p. 112): ‘‘[the paradox] can be understood as an inducement, even
a compulsion to solution. This means: as a challenge to reconstruc-
tion with the help of distinctions that enable stable identification.’’ In
other words, paradoxes keep us awake by relentlessly repeating
the same question. The answer remains irrelevant (Philippopoulos-
Mihalopoulos, 2005a).
Thus, the questions: how to begin in a space of absolutes, where
beginning and end flow into each other while interrupting each other?
What is the way in/out of a space of paralysing awe and desire? How
can ‘be-fore’ carry on existing in view of the luminosity of before? Is
there any way to freeze the relentless oscillation between the atopic
space of ipseity and the utopian space of an ipseity-baptised identity?
In view of these, the irrelevance of the answer becomes obvious: the
actual oscillation (in other words, the continuous questioning and its
suspension; Philippopoulos - Mihalopoulos, 2003) is the only relevant
move, taking place in the inescapable space of before. Before remains
inaccessible except through its vinous shoots on the planes of ‘before’
and ‘be-fore’, as nightmares of annihilation and presentiments of
total non-difference. However, after the adumbration of before, the
two (‘before’ and ‘be-fore’) can never be pulled away from their
288 ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

mutual rupture. The passing from constructed origin to reconstructed

desire can be epistemologically sketched; but since the oscillation is
continuous, awe is intertwined with desire, identity with ipseity,
dystopia with utopia, pathos with pothos, paradox with its reflection.
This paradoxical set of dyads becomes the very precondition of
marking. The unmarked space of before, of pure ipseity and luminous
futurity, is the means to the marked. With before, a mnemonic locus of
negated theology is constructed, which resemiologises prioritisations in
the light of total non-difference. After the visitation to (and, signifi-
cantly, the escape from) this space of the peculiar production of awe
and desire, of the Lacanian real that reverberates both behind and in
front of the visitor, the foundations of any method of prioritisation are
shaken: different and same (identity), and one and none (ipseity) are
neither ruptured nor continued. Humanity is defined by its escape from
its total presence, and its awe in front of its total desire. The answer is in
the question. The question is dipped in the claustrophobia of an
unobservable, unvisitable, inoperable space. Its interrogatory tentacles
appear in mnemonic and oneiric instances, and force a new ethics of
marking. For marking remains important. Every marking is a reluctant
acquiescence to the illusionary stability of identity. But identity is no
longer what it thought it was. Marked, it will remain. But this marking
is now aware of its lugubrious contingency. Any stability is powerfully
relativised by the passage from the hall of mirrors, where the paradox of
ipseity remains unobservable in its blinding visibility.
This text begins the present project. Nothing as admirably ambi-
tious as Irigaray’s creation of a sexual difference politics, or Cixous’s
pre-exclusionary language; nothing as radical as Kristeva’s collapse
of gendered subjectivity or Lacan’s reduction of difference to lin-
guistic positions; not even anything as hands-on as Cornell’s recog-
nition of the right to the imaginary domain. Nothing of the above,
because the present project is destined to remain out of bounds.7 Its
only possible access has been eradicated by a fundamental paradox:
that the project annihilates itself. Had one been able to look into the
space of before, the space itself would have shifted and the observer
would have been blinded. Before can only be adumbrated via its
extremities, namely ‘before’ and ‘be-fore’. In its turn, the pre-onto-
logical space ‘before’ difference (of any difference) remains impossible

7
Arguably, what the present project shares with all these is a utopian character,
especially in the way defined by Cornell (1998, p. 185): ‘‘what is possible cannot be
known in advance of social transformation’’.
 BEFORE IDENTITY, GENDER AND HUMAN RIGHTS 289

to observe but through its diametrical reflection – that of ‘be-fore’,

the locus of ideality, the desire for utopia. The two points of ‘before’
and ‘be-fore’ are brought together in a fragmented topos of para-
doxical self-perpetuation constituting the space of before.
Before stands somewhere in the inner folds of the map to utopia,
never to be reached and thus, always annulling any distinction, pri-
oritisation, marking, utopia. The Sirens of before invite the utopist
with their song, only to devour him later in a pool of contractual
fatalism. Awareness, but not indulgence, is required. The space of
before is available as a bracketed au-delà that guides the utopist’s
search for utopia, as long as the latter never approaches the bound-
aries of before. It operates negatively by bringing into perspective the
futility of identity marking, the ridicule of one’s smug stability of self,
the passionate need for recognition, the despairing inadequacy of
human rights. It operates positively by enabling the tracing of the
epistemology between ‘before’ and ‘be-fore’. But that’s it. Once
traced, the route has to be abandoned. What is left is the marks we
carry around and believe them to be our rightful human identity. If
this belief is shaken, then the present text will have begun its project.

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School of Law
University of Westminster
4-12 Little Titchfield Street
London W1W 7UW
UK
E-mail: andreaspm@westminster.ac.uk