Laws and Societies

Paul A. Passavant and Jodi Dean

In Excitable Speech, Judith Butler elaborates a theory of political performativity

via a consideration of various acts of hate speech.1 These acts include a cruel joke
played by children on a blind woman, a joke Butler recounts from an essay by
Toni Morrison. They include rap music, pornography, and flag burning. They
include the testimony to homosexual identity in the context of the US military’s
“Don’t Ask, Don’t Tell” policy. They include the restatement of hateful speech by
and in the law as law attempts to regulate hate speech by speaking hate. Butler’s
expanse of examples suggests the evocative richness of a politics of the perfor-
mative, the way such a politics exceeds the confines of the state to pervade the
networks and interactions of a rarely civil society, to infiltrate and reproduce
always vulnerable identities and affiliations. At a time of seemingly pervasive liti-
giousness, such expansiveness pluralizes the sites of politics, suggesting new
alternatives for opposition and contestation.
Linguistic agency, in Butler’s account, offers the possibility of a critical
response, of a political reconfiguration and resistance, unavailable either to legal
redresss or state intervention. But what about law? What about the state? In
considering Butler’s politics of the performative, we examine her rejection of law
and the state as vehicles for ameliorating oppression. Although we agree with her
emphasis on the multiplicity of sites and forms of political engagement, we
suggest that in giving up on law as a vehicle for social change and in moving
away from the state as a site for political action, Butler may stop too soon. She
writes, “My presumption is that speech is always in some ways out of control”
(15). The same presumption might be extended to law and the state to find oppor-
tunities for non-sovereign forms of agency in these sites as well.

Injury and Infelicity

Butler’s critique of hate speech engages Catharine MacKinnon’s anti-pornogra-

phy arguments as well as the influential work of critical race theorists Richard
Delgado and Mari Matsuda.2 Taking up Matsuda’s claim that hate speech consti-
tutes the subject in relations of domination, Butler asks: “But what gives hate
speech the power to constitute the subject with such efficacy? Is hate speech as
felicitous as it appears in this account, or are there faultlines that make its consti-
tuting power less felicitous. . .” (18–19)? Butler wants to exploit the potential of
the infelicitous speech act: in that an offensive utterance may not “do what it

Constellations Volume 8, No 3, 2001. © Blackwell Publishers Ltd., 108 Cowley Road, Oxford OX4 1JF, UK
and 350 Main Street, Malden, MA 02148, USA.
 Laws and Societies: Paul Passavant and Jodi Dean 377

says” (72), its very failure provides an opportunity for critical response. Thus,
Butler first challenges the assumption that hate speech is always efficacious, that
it always constitutes the subject through injury and successfully reproduces struc-
tures of subordination. Second, she suggests that such an assumption relies on an
account of the injury hate speech effects so total that it forecloses the possibility
of a critical response. She notes, third, that the assumption of hate speech’s effi-
cacy might need to be reversed: what may well be more politically significant
than its success is its failure, because precisely this failure is the condition of crit-
ical response.
How can the failure of the injurious address provide a condition for critical
response and in what ways might an account of the injury of hate speech foreclose
this provision? Answering these questions takes Butler into an engagement with
Althusser’s theory of interpellation (26). That is to say, she reads proponents of
hate speech regulation as providing a notion of the injurious effects of hate speech
that can be understood as a kind of interpellation: hate speech calls into being the
subject as subordinate. Here, the speech act is more than simply an element within
a dominant power formation; it is the lynchpin, the key, to the reproduction of
structures of domination. Hate speech works like a threat: it relies on an antici-
pated future, a future that continues and continuously reinforces the subjugation
and denigration of the subject called into being through hate speech. According to
Butler, then, arguments for the regulation of hate speech rely on an account of
injury that reinstalls these structures of subjugation. Moreover, they project the
future installation of these structures insofar as such a future installation is the key
to hate speech’s injurious effects. To the extent that these structures are rein-
stalled, the subject remains caught within them, trapped, unable to move, and
society remains unchanged.
In contrast to such a static, solid account of the reproduction of injured iden-
tity within a social structure of domination, Butler emphasizes the unpredictable,
disruptive elements in the scene of the hateful utterance. Not only is a key dimen-
sion of the injurious address the way it displaces the addressee, exposing her to
an uncertain future, but this very displacement reappears in the interpellative
power of the utterance: destructuration may also be an effect of hate speech’s reit-
eration, repetition, and rearticulation (19). Hate speech, in other words, may not
succeed in its attempt to reassert a structure, a pattern, of domination. Its effects
on the addressee as well as its relation to other acts, practices, incidents, and inter-
pretations cannot be determined in advance by either the hateful speaker or those
who would appeal to law or employ law to prosecute the injurious act.
The subject who speaks hate should thus not be understood as a sovereign
subject whose utterance creates the one who is hailed. No, hate speech is citational,
referring to already existing discursive practices, to already circulating images and
encoded traumas. Whatever efficacy it has stems from its citationality and the
ways the speaker reconnects to the community of hate and the addressee experi-
ences the reenactment of historical trauma. Given this citationality, a focus on the

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speaker of hate over-concentrates hate in a single site, ignoring hate’s historicity

and multiple, interlocking complexities.
Indeed, the emphasis on the singular speaking subject upon which advocacy of
hate speech codes seems to rely overlooks the embeddedness of agency in
language more generally. Any naming precedes my will and may very well occur
behind my back. Butler writes: “A founding subordination, and yet the scene of
agency, is repeated in the ongoing interpellation of social life. . . . The terms by
which we are hailed are rarely the ones we choose (and even when we try to
impose protocols on how we are to be named, they usually fail); but these terms
we never really choose are the occasion for something we might still call agency,
the repetition of an originary subordination for another purpose, whose future is
partially open” (38). Arguments for legal regulation of hate speech, then, misun-
derstand the more pervasive vulnerability of subjects constituted in and through
language. Neither law nor the state can provide a security that we always already
lack. We are necessarily and irrevocably vulnerable – and this vulnerability brings
with it our possibilities for agency.
In their attempts to combat the injuries of hate speech, proponents of hate
speech regulation, Butler argues, tend to disallow the disruptive potentials of
counter-speech. Their foreclosures of possibilities for critical response take a
number of different forms. First, hate speech codes recirculate the hateful utter-
ance. Like the trial of a rape victim, the prosecution of hate speech crimes repeats
and hence reenacts the traumatic injury. To the extent that the harm of the address
is disavowed through its citation in law, hate speech codes perpetuate the very
structure they mean to remedy (38).
Second, by relying on the law, hate speech regulations reassert the sovereignty
and agency of the state. They provide the state with yet another opportunity for
intervention, for establishing the boundaries of the speakable, the permissible, for
enhancing the state’s regulatory power and imposing “a further violence of its
own” (65). In so doing, they reinforce a faith in the state’s sovereign efficacy, its
power to name, decide, and prosecute. Clearly, courts can and do reapply and
redirect laws in ways unforeseen by their supporters, in fact often in ways directly
counter to their aims and intentions.
Third, hate speech regulations reinforce a view of the state as a neutral tool in
the hands of citizen-subjects, to whom a phantasmatic sovereignty is thereby
transferred. “In this shift, it is not simply that citizens are said to act as states, but
the power of the state is refigured as a power wielded by a citizen-subject” (48).
Hate speech codes produce the speaking subject they presuppose as they transfer
to it (and in so doing create) the power of the state. Put somewhat differently, in
these codes the interpellative power of the injurious address is rendered the prop-
erty of a speaking subject whose capacity to injure both occludes the prior
violence of the state and must be matched, contained, by it. Butler writes, “The
performative power of hate speech is figured as the performative power of state-
sanctioned legal language, and the contest between hate speech and the law

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 Laws and Societies: Paul Passavant and Jodi Dean 379

becomes staged, paradoxically, as a battle between two sovereign powers” (81).

Hate speech regulations thus contribute to the compensatory logic that produces
the sovereign subject as the subject of law. “This phantasmatic production of the
culpable speaking subject, spawned from the constraints of legal language, casts
subjects as the only agents of power. Such a reduction of the agency of power to
the actions of the subject may well seek to compensate for the difficulties and
anxieties produced in the course of living in a contemporary cultural predicament
in which neither the law nor hate speech are uttered exclusively by a singular
subject” (80).3
Fourth, just as they presume a capacity to protect linguistic subjects from
linguistic harms, hate speech codes presume that they can “resolve the problem
of a fundamentally unprosecutable history” (50). Because an instance of hate
speech “works” through its reinvocation of racist conventions, to prosecute an
individual for an act of injurious speech is to localize blame in the subject for an
entire racial history that produced this subject’s potential for engaging in the hate-
ful speech act.4 This localization, especially insofar as it produces the citizen-
subject as sovereign, as responsible because guilty of original, efficacious acts of
constitution and injury, forecloses opportunities for a more complex assessment
of the conventions and histories within which racist, sexist, and homophobic
utterances circulate.
In sum, Butler turns the problem of hate speech into an examination of the
problems with hate speech codes, provocatively invoking the specter of a
violence that has remained the privilege and threat of the state. She attends to the
political effects of strategies that deny state violence as they reestablish state
opportunities for regulating and prosecuting the speech of citizens, a speech now
rendered as itself the primary site of injury. At the same time, she insists on the
political advantages that may accompany an insistence on speech’s misfires and
excesses: “the utterance is uncontrollable, appropriable, and able to signify other-
wise and in excess of its animating intentions” (98). If speech misfires, if its
effects can be neither predicted nor controlled, and if vulnerability is always a
necessary condition of linguistic agency, why risk enhancing opportunities for
state intervention and the extension of its regulatory reach?

Agency
This is of course not to say that Butler understates the harm of hate speech. On
the contrary, approaching legal practices with trepidation, Butler endorses
nonjuridical forms of opposition to hateful speech in order to minimize the risk
that legal and state power be turned against progressive legal and social move-
ments. What concerns us is that in so doing she may not take her own insights
seriously enough. Butler emphasizes that indeterminacy inheres in speech acts
such that the attachment of names to persons is contingent and open to constant
reproduction and reappropriation. But this indeterminacy is double-edged:

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reactionary as well as progressive gains may be undone by a progressive poli-

tics of performativity and reappropriation. If so much is true for social
discourse such that it merits Butler’s guarded optimism mixed with a full
understanding of possible future danger, then certainly legal discourse
warrants similar hopes and concerns.
As we noted, Butler’s critique of critical race theory’s endorsement of hate
speech regulations points out a crucial disjunction: these scholars generally fail to
recognize the possibility that hate speech may miss its mark or be reappropriated,
even as they place great hopes in the possibility of turning law to progressive
ends. Although her point here is well-taken, Butler’s description of the dangers of
invoking state law neglects the kernel of her own insights – the perpetual open-
ness of linguistic action to reinflection, an openness that extends to state law.
More to the point, the image of the state and law that emerges from her discus-
sion is, well, rather sovereign and univocal.
Butler criticizes proponents of hate speech codes for putting forth in their
accounts of the individual who utters hateful speech a mistaken image of sover-
eign power, the sort of sovereign power that is more fitting for “a judge backed
by law in a relatively stable political order” (82). She also criticizes critical race
scholars for failing to consider the fact that, when hate speech is prohibited by
law, the intentions motivating such law will be “inevitably misappropriated by the
state” (101, emphasis added). Indeed, the state will reproduce such slurs as “state-
sanctioned speech.” Butler writes: “the state resignifies only and always its own
law, and that resignification constitutes an extension of its jurisdiction and its
discourse” (101). Arguing that the “political neutrality of legal language is highly
dubious,” she concludes that contesting hate speech in the social domain is more
promising than through the state and law because of the dangers involved in
giving over to the state via law the power of adjudicating the injury of speech.
Hate speech regulations that are not state-centered, however, such as university
codes, are “clearly less worrisome” than those promulgated through state law
(101).
Although at a theoretical level Butler joins with Michel Foucault to criticize
conventional political theory’s assumptions of state sovereignty on the grounds
that political power is far more plural than such theory allows, in her critique of
the use of law to regulate hate speech, Butler relies on the very image of sover-
eignty and positive law that she rejects in her critique of critical race theory. This
is the image of a sovereign state whose word is law and whose alchemical touch
turns everything within reach into its own sovereign law, a law always opposed
to the freedoms of its subjects.
Consider the following formulation: “the state produces hate speech” (77). For
Butler, this means “that the category cannot exist without the state’s ratification,
and this power of the state’s juridical language to establish and maintain the
domain of what will be publicly speakable suggests that the state plays much
more than a limiting function in such decisions; in fact, the state actively produces

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 Laws and Societies: Paul Passavant and Jodi Dean 381

the domain of publicly acceptable speech, demarcating the line between the
domains of the speakable and the unspeakable. . .” (77). To what does “the state”
refer? We might think that Butler has in mind a narrow version of the state, the
state as judiciary, as Court, as judge. But if this is right, Butler has overstated her
case: the category of hate speech precedes the courts’ determination of what
counts as hate speech; the work of critical race theorists, for example, circulates
the term before and beyond its invocation and application in particular cases. We
might also think here of MacKinnon’s work on sexual harassment. The concept
circulates in advance of legal outcomes, influencing them, indeed producing the
very opportunities for these outcomes to arise. But perhaps Butler does not have
in mind such a narrow conception of the state. Perhaps she has in mind something
broader, less centralized, more in keeping with Althusser’s ISAs (Ideological
State Apparatuses) or Foucauldian work on governmentality. In such a reading,
the state would encompass a variety of conflicting institutions, practices,
pronouncements, and discourses. But if this is right, then Butler’s emphasis on the
boundary drawing capacity of the state seems overstated, an instance of the
mighty invocation of a sovereign alchemist: the state’s institutions and arms often
conflict; its practices push up against each other with often unpredictable effects.
Here we might think of the differences between states like Georgia and New York
or between the dry counties of Tennessee and the more permissive environments
of Las Vegas and Atlantic City.
To be sure, we agree with Butler that law is not politically neutral. But, from
this it does not necessarily follow that law will be inevitably dangerous. Legal
discourse, like social discourse, is not a neutral instrument with positive meaning.
Rather, its linguistic indeterminacy is ever open to reinflection and reappropria-
tion. And this is why law cannot be a neutral instrument. While such indetermi-
nacy means that the political efficacy of law cannot be guaranteed to
subordinates, this also means that the political efficacy of law cannot be guaran-
teed as necessarily opposed to the interests of subordinates either.
For example, the “clear and present danger” test of proscribable political
speech originated in a Justice Holmes opinion for the Supreme Court as a legal
vehicle to make easy the criminalization of radical speech. Holmes, however,
reappropriates this legal test in famous dissenting opinions with Justice Brandeis
to argue for First Amendment tolerance on behalf of radical speech. Eventually,
the Holmesian misappropriation became the speech-permissive test that it is
today – a very difficult burden for the state to meet when it wants to censor insur-
rectionary speech.5
What is the significance of suggesting that in certain circumstances law as
interpreted by courts may discipline the state, as we have just done in our exam-
ple of insurrectionary speech? The significance of this move is that it fragments
the state and also shows that law and state are joined by a politics of articulation
and thus may be disarticulated in certain contexts. The images of the state and law
that Butler uses in her criticisms of critical race theory, in contrast, suggest that

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the discourse of the law is so deeply embedded within the institution of the state
that they become, for all intents and purposes, one and the same thing. The
passage cited above in which Butler advises against giving over “the task of adju-
dicating the injury of speech . . . to the law,” and then rephrases her concerns, “to
give the task of adjudicating hate speech to the state is to give that task of misap-
propriation to the state,” indicates the interchangeability of the state and law in
the context of her argument against advocates of hate speech codes (101). We
suggest instead an understanding of law and state as plural and an analysis of the
distinction between the two. By pluralizing the law-state unity upon which Butler
relies, moreover, we want to allow for the potential of both law and state to
provide possible sites of resistance for oppressed subordinates that ought not be
ruled out a priori.
The state is at best a decentered cluster of institutions. With the intensification
of conditions of globalization, the decentering and the pluralizing of state-like
institutions increases as well.6 As Eve Darian-Smith has shown, the residents of
Kent, frustrated as a forgotten periphery of the British nation-state, are inventing
and finding new spaces to press their claims and secure resources. Such regional
state and legal forms do not map in a one-to-one relationship with any national
territorial state. Rather, they form one of several overlapping and non-matching
layers of national, international, and transnational socio-political governance.7
In the United States, when a court declares a legislative act unconstitutional,
we have one state institution using law to discipline another. Moreover, we cannot
say that courts have been completely without use in enforcing civil rights, protect-
ing rights to a fair trial, and preserving rights to free speech, privacy, and pay
equity, although their shortcomings in each of these areas are manifest.8 Further,
the decentered nature of the US state “structure” has, on occasion, allowed for a
broader interpretation of rights at the state level than at the federal level. For
example, the US Supreme Court does not find a First Amendment violation in
shopping malls’ claim to property rights as a means of excluding protesters.
Nonetheless, the Court has also allowed states to interpret their state constitu-
tional free speech guarantees in a broader manner, thereby providing a right to
protest at shopping malls in California.9
More fundamentally, however, we wish to emphasize the university as part of
the contemporary fragmented state that may not be without utility for those who
seek to resist forms of racial, sexual, and gendered oppression. Strangely, Butler
refers to universities as non-state centered spaces where hate speech regulations
would be less worrisome (101). While Stanford is a private university that was a
focus of attention for its hate speech code, the most visible universities in the hate
speech controversy are state universities: the University of Wisconsin and the
University of Michigan. Academic freedom is not only an individual freedom, it
is a group freedom. The power of self-governance for colleges and universities
enabled by academic freedom means that these fragments of the state enjoy
substantial autonomy from other branches of the state “structure” to make policy

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for themselves. Thus, speakers with not-ready-for-prime-time perspectives have

been able to present their views at university fora. And, universities have supplied
institutional structures enabling recent student activism against sweatshops.
These examples indicate that the relative autonomy of this state structure ought
not be foreclosed to consideration by progressive activists. Universities have been
a favorite target of conservatives – whether for the critical scholarship produced
by their faculties, their opposition to hate speech, or their support of non-
Eurocentric curricula, affirmative action, and the education of the disadvantaged.
Indeed, the danger this state structure presents is not just as an Ideological State
Apparatus that reproduces fitting subjects for a society structured in dominance,
but as a relatively autonomous institution with the potential for endangering
powerful groups who wish to harness the university to reproduce the necessary
prerequisites for a capitalist system.
The decentered US state structure frustrated early twentieth-century progres-
sives like Charles Beard because victories won in one state institution would then
be contained or negated in another. By mid-century, however, the loosely articu-
lated nature of the US state provided avenues for progressive tactics, specifically
for the civil rights movement.10 The gaps in the pluralized state then may well
provide spaces for the critical responses Butler seeks. By extending her sensitiv-
ity to gaps and indeterminacy in the social realm to the realm of the state, then,
we want to suggest that “the” state may yet provide a strategic forum that progres-
sives ought not rule out too quickly.
In addition to recognizing the plural nature of the state, scholars and activists
would do well to recognize the plural nature of “the” law as well. The image of
sovereign state and law, joined as one, that Butler relies upon in her criticisms of
advocates of hate speech codes perpetuates the state’s fantasy that it owns the law.
To counter, we suggest that the pluralism of law be recognized in two ways. First,
one form of law may be subject to multiple and competing interpretations.
Second, there may be more than one form of law circulating within a territory that
a given state structure seeks to govern.
In an influential Harvard Law Review “Foreword,” Robert Cover argues that
the function of courts is not just to create legal meaning, but, and perhaps more
significantly, to inhibit it.11 Cover recognizes that communities give meaning to
law through their narratives, precepts, and distinct nomos, and he argues that
this leads to a proliferation of legal meaning. In this light, the role of a court
emerges not from a need for law, but from a need to suppress law. The justifi-
cation for the US Supreme Court, Cover argues, citing The Federalist Papers,
is as a solution to the problem of too much law.12 Thus, judges, as officers of
the state, do not create law. They kill it. They are confronted with “the luxuri-
ant growth of a hundred legal traditions, [and] they assert that this one is law
and destroy or try to destroy the rest.” To the extent that communities acquiesce
in or accommodate the judge’s interpretation, they reinforce the judge’s
hermeneutic and extend its social range. Likewise, interpretive confrontation

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challenges the judge’s – and therefore the state’s – authority and the extension
of their law and power.13
By disarticulating law from the state and recognizing that law’s textuality
begets a form of ineradicable pluralism, not only does the possibility for legal
contestation emerge, but the very necessity for legal contestation arises as a chal-
lenge for progressives seeking rights and resources. Precisely because legal
meaning is not stable or given, it must be fought for and won. For example, if we
decenter the state from our legal interpretations, we might be tempted to locate
the beginnings of a constitutional right to privacy in the famous Harvard Law
Review article by Charles Warren and Louis Brandeis, “The Right to Privacy,”
instead of the Supreme Court’s decision in Griswold v. Connecticut (1965).14
With this ruling, personal privacy finally received state acceptance. But privacy
continues to exist in a relation of confrontation with competing legal interpreta-
tions; its status as state law continues to be struggled for according to the very
principles of citationality that Butler recognizes in the realm of the social in her
discussion of the politics of performativity.
Similarly, the law’s openness to interpretive pluralism creates a space from
which to contest state racism. A key strategy in the civil rights movement, for
example, was to argue that the state misinterprets its law, to respond critically, in
other words, in the gap opened up by the state’s misfires. By coming before the
Supreme Court again and again, Thurgood Marshall the lawyer was able to
persuade the Court that, from the perspective of blacks, racial segregation was not
rational and was hence a violation of equal protection. The Court ultimately
incorporated Marshall’s contentions within its interpretation of the Constitution’s
guaranties in this domain.15
Of course, the textuality of law that makes a critical response possible in the
interests of the racially oppressed also leaves open the possibility that racially
inclusive interpretations of the Constitution may be confronted by contrary inter-
pretations where the strength of institutionalized white supremacy is more power-
ful. Pluralism, like indeterminancy, cuts both ways. And this is why legal
contestation is not only possible but necessary for progressives working to extend
the reach of equality.
We also note a second form of legal pluralism, that of multiple forms of law
circulating within a given territory. The history of the modern and the colonial
state has been a history of state law seeking to eradicate, suppress, or incorporate
alternative forms of law in order to bring legal unity to a particular state-governed
space.16 Success in this effort is never total, and the gaps in the state’s success at
projecting a singular and unified law can become spaces in which legal protests
can be made. For example, as US courts remain deaf to pleas that the administra-
tion of the death penalty violates the guaranties of equality and against cruel and
unusual punishment within the US Constitution, we hear emerging cries that the
death penalty violates international law and law as interpreted by the Catholic
Church.17 Similarly, we note that Mari Matsuda invokes international law in order

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to build her case that hate speech violates human dignity and to encourage
Americans to reconsider their current understandings of what equality might
demand in practice.18 Thus, Americans cite international law when an ethnocen-
tric myopia ossifies the meaning of constitutional rights in order to pry apart the
calcified bones of law and breathe new life in the gaps thereby produced.

Affiliation
One of the reasons Butler rejects legal remedies for hate speech is that, in its
orientation toward prosecution, law falsely individualizes social problems, ignor-
ing the conventions cited through the injurious utterance. We want to suggest,
however, that law may be a vehicle of social affiliation, and not simply a means
for the individualization of problems. Our argument is that Butler’s differential
valuation of social and legal action relies on a false dichotomy between law and
society in order to lend support for non-legal avenues of social change. But, if law
and society are not two separate entities, then the law might yet hold out promise
as a vehicle for the pursuit of justice even as it retains dangers similar to those
Butler acknowledges in the social.
Where does sovereignty lie in the United States? As James Wilson describes
the proposed Constitution to the Pennsylvania ratifying convention on November
24, 1787 in a speech publicized well beyond Pennsylvania’s boundaries, sover-
eign power “remains and flourishes with the people.”19 The Constitution repre-
sents the will of the American People. The People, however, did not exist as such
prior to the Constitution. Under the Articles of Confederation, sovereignty rested
with the states. Thus, while the Constitution cannot exist without the prior consent
of the People, this People itself is called into being through the law which claims
to represent it, but which in fact helps to constitute it. In other words, law and
nation, in this example, exist in a mutually constitutive relation. The American
People cannot exist without law that can represent the People and distinguish this
People from other possible peoples and places. The law, however, cannot be
unless the American People wills it into existence.20
What are the implications for understanding law and society not as opposed but
as mutually constitutive entities? We suggest that this leads to an understanding
of law not just as a device for individualizing social problems, but as a vehicle of
both affiliation and violent limits. The referent of the rights in the Bill of Rights
is the “People.” The First Amendment, for example, protects the “rights of the
people peaceably to assemble.” When one makes a legal claim upon the First
Amendment, one simultaneously claims a name – one claims the name of the
American People for one’s self. In this way, one gains a subject position that
allows conduct. Of course there is a gap that must be bridged, as Butler recog-
nizes so well in her analysis of hate speech. Just as the act of hailing may go
astray – its results are indeterminate and susceptible to unforeseeable conse-
quences through a politics of rearticulation – one must claim one’s own identity

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as American precisely because of the contingency of that identity and the possi-
bility that the law may name one differently. For instance, during the Cold War, to
be communist was to be “un-American,” and therefore without a legitimate claim
upon the rights of the American people (although this, too, has been renegotiated).
To claim a constitutional right like freedom of speech is to seek to incorporate
one’s self into the American people. For example, Martin Luther King, Jr. mobi-
lized a national discourse in support of equal rights for black Americans. Speaking
at the Montgomery bus boycott, King proclaimed: “We are here . . . because first
and foremost – we are American citizens – and we are determined to apply our citi-
zenship – to the fullness of its means.”21 He continued: “If we were incarcerated
behind the iron curtains of a communistic nation – we couldn’t do this. If we were
trapped in the dungeon of a totalitarian regime – we couldn’t do this. But the great
glory of American democracy is the right to protest for right.”22
In this example, King attempts to conjure an American people that will autho-
rize a right to protest, that will incorporate as its own the goals of the civil rights
movement. King aligns his American identity through the construction of an
outside – communist totalitarianism. So, while the invention of the “American
people” enables the possibility of claiming rights, “America” is distinguishable
only by virtue of relations of difference: what is not American. American consti-
tutional rights become recognizable through constitutive limits, limits that create
a basis of affiliation.
While King invokes an anti-communist America to sustain the rights claims of
the civil rights movement in Montgomery, in other speeches King cites America’s
foundational legal documents to produce an American imaginary that is not
racialized – a subject position wherein citizens are affiliated on a national rather
than a racial basis. In a commencement address, titled “The American Dream,”
King refers to the Declaration of Independence’s statement that all men are
created equal, and that they are endowed with the inalienable rights of life, liberty,
and the pursuit of happiness. Analyzing this passage, King observes that “One of
the first things we notice in this dream is an amazing universalism. It does not say
some men, but it says all men. It does not say white men, but it says all men,
which includes black men.” In an address on the third anniversary of Brown v.
Board of Education, he describes Brown as a “deathblow to the old Plessy
doctrine of ‘separate but equal.’ It came as a reaffirmation of the good old
American doctrine of freedom and equality for all people.”23 By citing legal
declarations and constitutional decisions, King attempts to make his dream of a
non-racial America a reality. If it already existed, of course, then there would be
no need for King to work so hard to conjure it into being. Therefore, King calls
upon the law not to refer to an America already out ‘there,’ but to constitute an
America that does not yet exist but may come to exist through a process of inter-
pellation, a politics of the performative.24
As these examples show, law and society are not completely separate realms.
Rather, they exist in a mutually constitutive relation. Law and society are hybrid,

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 Laws and Societies: Paul Passavant and Jodi Dean 387

incomplete categories where each makes the other what it is. The law requires a
social supplement to become determinate, while a given society in turn comes
into being with the law that claims to represent it. Constitutional law brings the
American people into being, while the social force of a momentarily stabilized
American imaginary determines the meaning of legal rights. King’s speech acts
intervene at the intersection of law and society, invoking a particular national
imaginary to create the grounds of validity for his rights claims, and in turn using
law to conjure up a national affiliation capable of transcending race.
We read critical race theory as intervening at precisely that point where law and
society mutually constitute each other. Patricia Williams writes that for blacks,
“the attainment of rights signifies the respectful behavior, the collective responsi-
bility, properly owed by a society to one of its own.”25 In other words, having
one’s rights protected signifies one’s membership in the community. Of course,
the converse is also true, that “rights assertion has been limited by delimiting
certain others as ‘extrinsic’ to rights entitlement.” Therefore, how the “people” is
imagined and where the limits to the people are located determines whose rights
are recognized and what practices constitute a social problem for the body politic.
Because, as we learn from Butler and others, communities are imaginary
constructs whose reality depends upon signifying performances, the signifying
dimension of rights practices is highly important for those who have been
excluded from subject positions to which equal concern and respect attaches.
Those who seek equal standing within the political community claim rights as a
symbolic practice to leverage their way into this imaginary space.
Williams notes: “To say that blacks never fully believed in rights is true. Yet it
is also true that blacks believed in them so much and so hard that we gave them
life where there was none before.”26 The civil rights movement produced a narra-
tive of the American people such that legal rights came to have meaning for
blacks in circumstances where they previously appeared all but dead.
Reciprocally, the failure of the law to recognize the violation of racism continues
to make racism’s victims feel like a “stateless person.”27 Precisely because of
legal and social indeterminacy, progressives must engage in socio-legal struggles
– struggles based upon dreams and fantasy – to make more real the basis of affil-
iation that enables the possibility of claiming a right to justice.
In the hands of critical legal scholars, law plays a crucial role in delineating
lines of affiliation although such communities are never without their remainders
– remainders that inspire new claims to justice and redrawn lines of affiliation,
which in turn produce their own remainders, and so on. In contrast, Butler’s
approach as outlined in Excitable Speech might be understood as unintentionally
individualizing. By forsaking the law in the way that she has, Butler places full
and isolated responsibility of critical response upon the victims of identity-based
violences. In so doing, Butler neglects law as the authoritative representation of
the community to which it applies. By making legal remedies available for vari-
ous wrongs, the community acknowledges its obligations to those who suffer

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such pains. Furthermore, by citing the law that makes available such remedies,
the individual re-calls the community to presence in this instance, a community
that does not exist outside of such calls to existence. Such legal practices are not
extrinsic to a politics of performativity. Indeed, a text cannot be law unless it is
cited as law by subjects who recognize it as such. Thus, law and its subjects are
interminably linked until the end of their time.28

NOTES

1. Judith Butler, Excitable Speech: A Politics of the Performative (New York: Routledge,
1997), hereafter cited parenthetically.
2. Catharine MacKinnon, Only Words (Cambridge, MA: Harvard University Press, 1993);
Mari J. Matsuda, Charles R. Lawrence, Richard Delgado, and Kimberlé Williams Crenshaw, eds.
Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder:
Westview, 1993).
3. For a compelling discussion of compensation, see Thomas L. Dumm, A Politics of the
Ordinary (New York: NYU Press, 1999), esp. ch. 3. For an analysis of the compensatory logic at
work in arguments for the death penalty, see William E. Connolly, “The Will, Capital Punishment,
and Cultural War,” in Cultural Studies and Political Theory, ed. Jodi Dean (Ithaca: Cornell
University Press, 2000).
4. For a more detailed critical discussion of this point, see Renata Salecl, “Hate Speech and
Human Rights,” in Feminism and the New Democracy, ed. Jodi Dean (London: Sage, 1997), 81–97.
5. Schenck v. U.S. 249 U.S. 47 (1919); Abrams v. U.S. 250 U.S. 616 (1919); Yates v. U.S. 354
U.S. 298 (1957); Brandenburg v. Ohio 395 U.S. 444 (1969). For a discussion of Justice Holmes’s
change in jurisprudence, see David Rabban, “The Emergence of Modern First Amendment
Doctrine,” University of Chicago Law Review 50 (1983): 1205.
6. For some of the arguments in this domain, see William E. Connolly, The Ethos of
Pluralization (Minneapolis: University of Minnesota Press, 1995); Eve Darian-Smith, Bridging
Divides: The Channel Tunnel and English Legal Identity in the New Europe (Berkeley: University
of California Press, 1999); David Held, et al., Global Transformations: Politics, Economics and
Culture (Stanford: Stanford University Press, 1999); and Saskia Sassen, Globalization and its
Discontents (New York: New Press, 1998).
7. Darian-Smith, Bridging Divides.
8. For a defense of the strategic usefulness of the law in the pay equity movement, see Michael
McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago:
University of Chicago Press, 1994). For a contrary view of law and courts, see Gerald Rosenberg,
The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press,
1991).
9. PruneYard Shopping Center v. Robins 447 U.S. 74 (1980).
10. Mark Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court,
1936–1961 (New York: Oxford University Press, 1994).
11. Robert Cover, “Foreword: Nomos and Narrative,” Harvard Law Review 97 (1983): 4–68, 26.
12. Ibid., 40–41, citing The Federalist, No. 22.
13. Ibid., 53. Emphasis in original.
14. 381 U.S. 479 (1965); Harvard Law Review 4 (1890): 193.
15. Tushnet, Making Civil Rights Law. In this way, we can understand Richard Delgado’s argu-
ments in favor of tort remedies for victims of racial hate speech as a form of law that hails judges
and seeks to interpellate them and thereby win state backing for this law. See Delgado, “Words that
Wound: A Tort Action for Racial Insults, Epithets, and Name Calling,” in Matsuda, et. al., Words
that Wound, ch. 4.

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 Laws and Societies: Paul Passavant and Jodi Dean 389
16. See Peter Goodrich, Law in the Courts of Love (New York: Routledge, 1996); Marc
Galanter, “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law,” Journal of
Legal Pluralism and Unofficial Law 19 (1981): 1; Peter Fitzpatrick, “Law and Societies,” Osgoode
Hall Law Journal 22 (1984): 115; Stanley Diamond, “The Rule of Law versus the Order of
Custom,” Robert Paul Wolff, ed. The Rule of Law (New York: Touchstone, 1971).
17. See Hugo Bedau, “International Human Rights Law and the Death Penalty in America,”
Hugo Bedau, ed., The Death Penalty in America (New York: Oxford University Press, 1997), 246.
18. Mari Matsuda, “Public Response to Racist Speech: Considering the Victim’s Story,”
Michigan Law Review 87 (1989): 2320, 2341–2348.
19. James Wilson, “James Wilson’s Opening Address,” Debate on the Constitution Part One
(New York: Library of America, 1993), 801–802.
20. Drawing from Arendt, Austin, and Derrida, Bonnie Honig analyzes the performative and
constative power of the “We hold. . .” in the American Declaration of Independence, see Political
Theory and the Displacement of Politics (Ithaca: Cornell University Press, 1993), 101–115. For an
account of producing an American people that highlights the American Constitution, see Paul A.
Passavant, “The Governmentality of Discussion,”in Cultural Studies and Political Theory. See also
Jacques Derrida, “Declarations of Independence,” New Political Science 15 (1986): 7.
21. Martin Luther King Jr., quoted in Taylor Branch, Parting the Waters: America in the King
Years, 1954–63 (New York: Simon and Schuster, 1988), 138–139.
22. King in Branch, Parting the Waters, 140. First italics ours.
23. Martin Luther King, Jr., A Testament of Hope: The Essential Writings of Martin Luther
King, Jr., J.M. Washington, ed. (San Francisco: Harper and Row, 1991), 197, 208.
24. Here we draw from Passavant, “The Governmentality of Discussion.”
25. Patricia Williams, The Alchemy of Race and Rights (Cambridge, MA: Harvard University
Press, 1991), 153.
26. Ibid., 159, 163.
27. Matsuda, “Racist Speech,” 2338.
28. Here we are obviously influenced by Jacques Derrida’s essays “Before the Law,” and “The
Law of Genre,” published in Acts of Literature (New York: Routledge, 1992). We are also influ-
enced here by Butler’s own work on law, citation, and reiteration. See Judith Butler, Bodies that
Matter (New York: Routledge, 1993). For example, Butler writes: “ ‘the law of sex’ is repeatedly
fortified and idealized as the law only to the extent that it is reiterated as the law . . . by the very
citations it is said to command” (14). Butler also notes the paradoxical relation between examples
and the law they are meant to exemplify – which produces which (202)? Does the law precede the
examples or do the examples produce the law? Ultimately, neither can exist without the other.
Analogously, we argue here that neither law nor society can exist without the other.

ã Blackwell Publishers Ltd. 2001