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

Abstract

Judith Butler's signature theorizing of performativity requires attention to full ethico-political range of meanings of law, from self-discipline to convention to juridical logic of sovereignty. That is, performativity spans continuum across political rule and ethical rules, and play of processes of subjectivization, subjecthood and subjection. Problematizing sovereign subject, Butler unpacks a priori, intending legal subject by reading law at once as text, thus cracking open self-referential and universalist moves of sealed juridical logic, and also as context, as norms that are always on move. Considering law's performativity challenges authorial and authoritative transparency of law--its sovereignty--by demanding a temporally robust approach to very idea of context. A theorizing of iteration and citationality, performativity poses context as more than just historical and empirical framework for law, contemplating it instead as historicity of law itself, of law understood as ever-shifting convention, or always already situated norms that become sites for citation. My work on installation of rule of law in colonial India, particularly colonial law's staging of society as market, and its temporal politics, that is, its production of modern, contracting economic subjects as opposed to anachronistic subjects of custom, brings me back to these thematics of convention, context and historicity in Butler's work. In British India, a mission to systematize law confronted array of customs and conventions among local populations. Butler innovatively engages such tensions across different forms of law. A deconstmction of speech act, idea of performativity reveals itself as a temporal play that cuts across two broad concepts of law: logos and nomos. Logos, traditionally translated as reason or speech, also evokes a divine performative, word or sovereign command, as well as notion of law as a sealed logic or system. Law as nomos, on other hand, refers to law as convention, what is done and what is accepted. The idea of nomos evokes ways of being, settled norms and values, while at same time exposing a problem of agency: who is agent of convention? In legal scholarship, both explicitly and implicitly, concept of law as nomos has informed robust readings of legal regimes as lived worlds, as normative universes that are made, maintained and remade. (1) Butler's performativity complicates and finesses such critical approaches. To show how, I draw attention to temporal and spatial situatedness of convention and pose nomos as a marker of context, its consistent remaking, and so its (im)possibility. I would like then to emphasize Butler's wide-angle approach to law, which renders her a unique legal theorist whose legal philosophy stems from a relentless focus on slippages across, and temporalities of, law as nomos and as logos. After discussing Excitable Speech to highlight these moves, I will consider ways in which they cite and speak to another influential mapping of ethico-political continuum of law: Foucault's analysis of discourses of governing/government, particularly in his late College de France lectures, and what he calls non-economic analysis of power, which informs his genealogy of governmentality. (2) In a much-cited early lecture, Foucault asks if it is possible to imagine relations of power differently from classical models of social contract that structure liberal democratic legal systems today, models which conceptualize power as an economy or exchange of rights. (3) Butler's theorizing of performativity challenges liberal templates of law and legal procedure in just this way. To further pursue this connection between Butler and Foucault on relationship of law and governmentality, and to bring early Butler of Excitable Speech (4) to Butler of Precarious Life, (5) I will pose questions that are opened by story of rule of law in British India, especially legal institutionalization of that ubiquitous modern social imaginary, the economy. …