Identity Politics and the Law in the United States

Mariana Valverde. Feminist Studies. Volume 25, Issue 2. Summer 1999.

In the United States, debates on issues of power, politics, and justice have come to be conducted largely in terms of identity-based claims. Women, gays, disabled people, African Americans, Hispanics, and other marginalized groups have deployed experiential and historical knowledges of oppressed identities to further their claims in the political arena. These struggles have in turn shaped the development of both empirical and theoretical critical scholarship in disciplines from social psychology to literature to philosophy. By comparison, feminist legal scholarship has been somewhat slow to enter the fray of identity. The profoundly individualistic character of the U.S. legal system has meant that most of the significant victories won by the U.S. women’s movement in legislative and judicial arenas have had to be played out in terms of individual rights rather than group identity. Like grassroots activists, most critical legal scholars do not believe for a minute that liberal individualism is an adequate framework to explain the subordination of oppressed groups through law. However, in a country that sees law schools as professional training schools rather then as sites for philosophizing about justice (as is the case in much of Continental Europe), legal scholarship is fundamentally constrained by and oriented to actually existing legal battles.

In the 1980s, the most influential feminist legal thinker to break with the reformist liberal individualist law school tradition was Catherine MacKinnon. Although her work became very influential in the development of feminist legal theory, MacKinnon met with little success at the level of legal practice. Her attempts to make pornography into a gender-specific form of collective civil rights violation were pronounced unconstitutional by the courts and were in any case not universally supported even by feminists critical of liberal individualism. For some years MacKinnon was virtually the only alternative to liberal feminism presented in law school curricula (socialist feminism, strong in the social sciences and in feminist history circles, was never a force in law schools). The development of critical race theory in the second half of the 1980s, as an uneasy but fruitful synthesis of the analytical tools of critical (mainly Marxist) legal studies and the identity politics developed by a handful of legal academics of color, began to change the horizons of feminist legal thought. Now, at the end of the 1990s, a number of distinct identity-based strategies are available within progressive legal scholarship, from lesbian/gay legal studies to “critical race feminism.”

Given the wide range of political goals and intellectual sources in recent legal scholarship drawing upon some version of “identity”—or, minimally, “community”—identity politics is no longer the sort of thing that one can be for or against. Identity politics appears to have dispersed and to have given rise to several quite distinct theoretical and strategic projects, even though this dispersal is not always acknowledged even by the participants, who often write as if identity politics were a single project.

Reflecting the broader debates among both grassroots and academic intellectuals, within legal scholarship “identity” has come under attack both theoretically and politically, in debates about whether all identity claims are necessarily essentializing and about whether it is possible to conduct identity politics without creating new exclusions. These debates are explicitly addressed by nearly all the books under review. However, although many of the contributors simply take sides in the existing and by now rather stale battles, some participants offer insights that may allow us soon to move beyond the impasses of the 1980s and 1990s.

Wendy Brown’s important 1995 book, States of Injury: Power and Freedom in Late Modernity, sidesteps the debates about the character of the “we” of identity politics by reflecting not on the subject of identity politics but rather on the form that these politics tend to take. The experiences and political desires that are currently fueling identity politics could potentially give rise to diverse political forms, but it so happens that in the United States progressive politics have come to be identified with “injury politics,” that is, claims and counterclaims about who has been injured and how. Political interests are now no longer defined in the conventional terms of ideologies or interests but in terms of the self-righteous anger of the injured. Political claims for justice have been distorted, Brown argues, by a tendency to “rage,” based not on a positive idea of the good society but rather on what Brown, following Nietzsche, calls “ressentiment.” Ressentiment is a powerful political force, Brown argues, but its effects are often self-defeating, particularly when the injury that is constitutive of a certain group is thought of primarily in terms of injury to self-esteem rather than in terms of material and structural injustice. Those who organize against symbolic and emotional injury tend to ask not for an equalization of material resources but for symbolic goods to ease the injury, such as hate speech laws or antipornography ordinances. The quest for these symbolic goods, however well intentioned, often ends up endowing the authorities with new legitimation, thus robbing identity politics of its revolutionary potential.

Brown’s analysis will irk many people, but it struck a chord with me, particularly because I happened to be rereading the book for review purposes just as some of my fellow activists in a group organizing a new “sexual diversity studies” program at my university wrote irate letters to the campus paper demanding that writers of homophobic graffiti be criminally charged. Working in criminology has made me aware of the fact that law and order campaigns usually end up being controlled and defined by the police and the prosecutors, not by the activists who started them, and that campaigns against pornography and against racist hate speech—and even campaigns against domestic violence—often end up further empowering racist and sexist police and prison apparatuses. Thus, although it is marketed as political theory rather than as legal studies, Brown’s States of Injury has made an important contribution to the literature on identity politics and the law, because it encourages us to stop taking sides for or against identity and to start reflecting on the way in which identity is constituted in our own time.

Brown is unusual among U.S. feminist thinkers in that she points out that the privileging of “injury” as a source of identity is a specifically American phenomenon that is in some ways an integral part of the very liberal reformism it claims to reject. It is a symptom of the dangerous isolationism of the law profession, including its critical wing, that this work is not being either used or refuted in any of the legal scholarship under review.

And yet, Brown’s analysis sometimes homogenizes identity-based claims, ignoring the major differences between the more essentialized versions of identity promoted by Mari Matsuda and by the authors included in Adrien Wing’s Critical Race Feminism: A Reader, on the one hand, and, on the other hand, the more historically specific versions of identity politics developed by many authors in the Critical Race Theory: The Key Writings That Formed the Movement in analyses that avoid simplistic injury claims. To that extent, Brown’s thoughtful analysis does not clearly challenge the construction of the debate on identity politics as an either/or choice. A 1998 review in the Women’s Review of Books, for instance, tells us that Marl Matsuda is in favor of identity politics while Martha Minow (a well-known feminist legal scholar) has many reservations about the ways in which identity politics separates oppressed groups from one another—a comment that, although accurate enough, tends to erase the growing differences between different versions of both “identity” and “politics.” Given the fragmentation of identities and their politics visible in debates within critical race theory, it makes little sense to re-enact the stale debates for and against identity politics. It is more useful to document the dispersal of identities and the reconstitution of politics, analyzing the ways in which different agendas and contexts produce very different results even when the same general language of group oppression and community building is used.

There are of course those who have rather belatedly discovered the pleasures of identity and are naively unaware of its dangers; perhaps the gay campus activists calling for the imprisonment of graffiti writers count among them. But when Wendy Brown chastizes Patricia Williams for arguing that although liberal legal systems are inherently racist, the history of American slavery makes “rights” a necessary and by no means inglorious part of critical legal theory, the limitations of Brown’s approach are revealed. (See pages 122-28 where Brown criticizes Williams’s much-read 1981 book, The Alchemy of Race and Rights.) It seems to me that Williams’s more positive attitude toward “civil rights” is not due to a theoretical lack but rather to the historical fact that civil rights has been a crucial tool of antiracist politics in the United States. Williams and most other critical race theorists are not uncritical of civil rights strategies; but their approach seeks to validate and learn from the experiences and legal victories of African American communities, paying due respect to the “Negro” identities built in the 1950s and 1960s. It is important for today’s younger legal scholars to engage with the Marxist critique of rights developed in the 1970s by critical legal studies: but taken on their own, philosophical critiques of liberal individualism run the risk of letting theoretical consistency dictate political practice. As those of us brought up in Marxist circles remember, those with the most theoretical rigor did not always give the best political advice. This cautionary note notwithstanding, it seems to me that even the critical race theorists that are most positive about rights strategies may find it useful to consider—as Judith Butler and Wendy Brown both suggest, in different ways—that identity-based political campaigns that focus primarily on the racist and sexist speech and acts of private individuals and institutions can end up unwittingly reinforcing the illusion that the U.S. legal apparatus is a neutral tool that can be expected to remedy injustice.

Butler’s critique (in chapter 2 of Excitable Speech: A Politics of the Performative) of the approach to hate speech laws promoted by Mari Matsuda in Where Is Your Body? And Other Essays on Race, Gender, and the Law is heavily influenced by Marx’s insight about the power of the state. But Butler is not quite returning to Marx’s analysis of the fundamental violence of law, insofar as her analysis of law as the state’s speech is modified by poststructuralist understandings of both meaning and subjectivity.(3) For Butler, neither the state’s speech (law) nor the wounding words of hatemongering individuals have the sovereign power to completely fix the meanings of words (even “the N word,” it would seem) and hence ascribe a fixed, uncontestable identity to any of us. Matsuda seems to feel that the meaning of insulting words is fixed: in Where Is Your Body? she goes so far as to insist that the typesetters use “f-g” as if the mere existence of the word “fag” on the page constituted an unbearable insult for gay readers. In my view, such typographical conventions are nothing but fodder for our enemies, who are then able to gleefully cite such practices to ridicule our overseriousness and our “political correctness.” Butler seems to agree with my pragmatic argument but prefers to use Matsuda’s typing practices as an opportunity to show that post-structuralist theories of language are highly relevant to today’s political battles. Brilliantly combining Foucault’s analysis of the somewhat illusory total power of “sovereignty” with a Marxist analysis of the state and a Derridean analysis of the indeterminacy of language, Butler argues that people like Matsuda falsely believe that certain words are inherently powerful and intrinsically injurious. Butler claims that whatever power to hurt the word “fag” has is not due to the word’s intrinsic meaning or even to the ill intentions of the people who use such words but rather to the very real power that state machineries have to define what is free speech, what is obscenity, what is libel, and what is nonspeech.

The state produces hate speech, and by this I do not mean that the state is accountable for the various slurs, epithets, and forms of invective that currently circulate throughout the population. I mean only that the category cannot exist without the state’s ratification…. The inflated and efficacious utterance attributed to hate speech in some of the politicized contexts discussed above is itself modeled on the speech of a sovereign state, understood as a sovereign speech act, a speech with the power to do what it says. This sovereign power is attributed to hate speech…. Precisely this power of legal language is that to which we refer when we call upon the state to effect the regulation of offensive speech. (P. 77)

That seeking remedies for one’s victimization may in the end empower the state more than oneself or one’s allies is a useful insight to salvage from the ruins of Marxist thought. Campus arguments about whether rap groups, homophobic students, or white professors are guilty of hate speech tend to unwittingly perpetuate the mainstream liberal assumption that justice is a good that can be dispensed by university administrators or courts of law.

Butler’s analyses of the politics of political rhetoric are by and large site specific; Brown’s inquiry into identity and state power, however, is conducted in more general terms, which makes sense if one is doing “political theory” but which could present problems if the theory is “applied” to practice without sufficient analysis of the specifics of the situation. There is no necessary dichotomy between theory and practice, of course; but a number of institutional and political traditions and alliances have come together to create a much sharper split between philosophy and sociolegal studies in the United States than is the case in other English-speaking countries. Thus, although more philosophical writers like Butler and Brown are often ignored both by law schools and by social science departments, U.S. sociolegal scholarship has tended to marginalize not only theory considered as “postmodern” but theory in general. It is symptomatic of this split between philosophy and applied social and legal studies that Kimberle Crenshaw, whose work is more sophisticated and interdisciplinary than most, nevertheless tends to regard social theory as a single entity that can be rejected in toto.

If one of the problems with current debates is that many participants are failing to engage fully with the complexities and nuances of “the other side,” what sort of diagnosis can be made with a view to the future? If a reviewer who is neither a law professor nor an American can claim the prophetic privilege conventionally granted to the genre of review essays, I would predict that within progressive legal scholarship, the days of simple identity politics are numbered. Gazing deep into my crystal ball what I see is that within feminist legal theory, gender reductionism will be replaced not by postmodern ironic play (as many feminists fear) bur rather by sober analyses more interested in documenting the effects of local constellations of power than in pontificating about politics in general. Many white feminist law professors will undoubtedly continue to write about women in general and to recommend that judges reason “relationally” rather than through the individualistic premises of the adversary system, as Robin West does (in “The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory” in Feminist Legal Theory, pp. 423-42). But this type of race-blind feminist essentialism is the version of identity politics that is the most likely to end up eventually on the garbage heap of U.S. history, not necessarily because ethnocentrism has become passé among feminists, but for the demographic reason that younger feminists of all races seem increasingly skeptical about the woman-as-nurturer essentialisms that were popular in the heyday of Susan Griffin and Carol Gilligan.

The decline of essentialist white feminism, in both its MacKinnonite form and its neomaternal or cultural feminist versions, as well as the development of Black feminist perspectives that challenge some of the assumptions of older Black nationalisms, do not necessarily involve the decline of identity politics as such. The most useful thing I have learned from current U.S. legal debates on race and gender is that some people are quietly developing a nonessentialist and antitriumphalist version of identity politics that holds much promise for activism as well as for scholarship. Although refusing to be silent about the profound sexism of many African American male leaders, Crenshaw and Williams are careful to avoid the sort of victim-oriented politics critiqued by Wendy Brown. Their work, which relies on and is supported by that of many of the male writers included in Critical Race Theory, avoids grand generalizations and thus opens the door for historically specific analyses. Neither Crenshaw nor Williams have themselves carried out extensive empirical investigations, but their work promotes the use by legal scholars of the work of historians and social scientists and to that extent breaks with the professional school ethos that has often limited even the best of feminist legal scholarship. In pursuing interdisciplinary work that does not presume the centrality of law, Crenshaw and Williams are particularly careful to encourage legal scholars to integrate the research findings of those who have documented the strengths as well as the injuries of African American women and their communities. The work of sociologists who write about Black women’s experiences in U.S. prisons or in the welfare system is used to ground legal strategies, a move which may seem perfectly obvious to social scientists but is quite original in a legal context. This type of sociolegal analysis has had much resonance within antiracist scholarship outside of law schools, but it has been taken up within legal circles only unevenly.

Crenshaw, Williams, and their allies represent just one stream within critical race scholarship, however Another perspective, one that has only a weak connection to critical legal studies, and few links with Marxist legal thought or contemporary developments in the social sciences, has been developed by Mari Matsuda, well known for her articulate arguments in favor of criminalizing hate speech. Matsuda’s speeches and essays, reprinted in Where Is Your Body? are very useful political documents, even though many readers will be annoyed by the way in which she constructs her version of identity politics as the only alternative to reactionary and liberal mainstream approaches.

Matsuda’s work on law is enriched by her political commitment to oppressed groups throughout U.S. society; although spending some of her time discussing the specificity of her own identity as a Japanese American, she is more interested in building coalitions across oppressions rather than in promoting narrower versions of identity politics. Her analysis is marred by the all-too-common American assumption that speaking about oppression is the same as analyzing or even overcoming it, an assumption that has been extensively challenged by feminist thinkers outside of law schools in critiques that do not seem to have reached Matsuda’s ears. Nevertheless, her work is important in that it attempts to build alliances among different racial minorities and between antiracist and other struggles, namely feminism and gay rights, and is very effective at that political level whatever its theoretical weaknesses:

As lawyers working in coalition, we develop a theory of law taking sides rather than law as value neutral. We imagine law to uplift and protect the sixteen-year-old single mother on crack rather than law to criminalize her. We imagine law to celebrate and protect women’s bodies; law to sanctify love between human beings, whether women to women, men to men, or women to men as lovers may choose to love; law to respect the bones of our ancestors; law to feed the children; law to shut down the sweat shops; and law to save the planet. (P. 63)

This coalition-building impetus is much weaker in a newer anthology with the promising title of Critical Race Feminism: A Reader. Adrien Wing’s version of Black feminism will likely help to solidify networks of African American women lawyers, but most of the authors are unable to build on existing work in critical race theory. Unlike Patricia Williams, who manages to use her experiences carefully and selectively to shed new light on the most fundamental questions of legal theory, most other contributors to Critical Race Feminism merely tell the story of how they became law professors despite all sorts of obstacles without using the stories to make analytical points. Wing’s own contribution, grandiosely entitled “Brief Reflections toward a Multiplicative Theory and Praxis of Being,” opens with a personal anecdote about overcoming the racism of an airline ticket clerk by flashing an American Express Gold card and a faculty ID card. The clerk had questioned Wing’s claim to a first-class seat, and after the clerk’s challenge (undoubtedly arising out of racism) was overcome by documentary evidence of upper-middle-class identity, Wing thinks about the experience as follows:

On the plane, I replayed the scene in my head. I realized that this experience could be interpreted in several ways. What if I had not been black? Well I was still a woman. What if I had not been young? Well, I was still black. Somehow I thought that one of my young white male colleagues would not have been challenged in the same way even if he were in blue jeans.

The meaning of the American Express Gold card, however, is left unmentioned, as Wing goes on to other issues assuming that her experiences are representative of African American women.

Wing’s anthology is not wholly devoted to first-person accounts; some articles deal with current issues and events. These pieces, however—on the O.J. Simpson trial and the Clarence Thomas confirmation hearings—do not add anything to the rich analyses found in the 1992 Toni Morrison anthology, Race-ing Justice, Engendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality. It is also unfortunate that, for Wing and most of her contributors, “race” functions not as a key analytic category but simply as a synonym for African Americans—there are a few contributions by Hispanics and other people of color, but very few of the articles echo Matsuda’s strong coalition politics.

Although Wing’s collection is not a major contribution to legal scholarship, because it resembles the collections of “coming-out stories” popular in lesbian communities in the 1970s more than the thoughtful analyses of critical race theory, its existence is amply justified by the continuing exclusion of race-critical perspectives not only from mainstream law school curricula but even from most feminist work. Some noted white U.S. feminist legal scholars have in recent years attempted to rethink gender through race. Martha Fineman, for instance, still generalizes too broadly about motherhood, sometimes failing to distinguish between maternal welfare policies in the United States and motherhood in general; but she has made a significant effort to think about welfare and family law from the point of view of Black U.S. mothers, and her writing on these matters has been favorably cited by African American women lawyers. Unfortunately, however, Fineman is not typical. The most famous feminist legal academic in the United States—and indeed in the whole English-speaking world—Catherine MacKinnon, persists in writing as if race were adequately addressed by regarding it as a minor subdivision of gender; and anthologies designed for courses on “women and the law” tend to assume that race is relevant in substantive areas such as international law and welfare rights but is not an analytical category for the development of “Theory.” The repetition of such subordinating moves by white U.S. feminist legal scholars is bound to give some impetus to the more essentialized race politics favored by many of Wing’s contributors.

The more essentialized versions of identity politics within U.S. critical race theory also happen to be philosophically naive, a situation that has led to an unfortunate identification of “Theory” in general with anti-identity political perspectives. In that context it is very useful to be reminded that there is a stream within postmodern feminist theory that supports a (nonsociological) version of identity politics: the stream represented by advocates of L’écriture féminine. Peter Goodrich, an English legal theorist now teaching at the Cardozo Law School, has over the years made a thoroughgoing effort to develop a critique of the masculinity of law using Lacan and French feminisms as resources, developing a corpus of philosophical-legal writing that Luce Irigaray might have herself written if she had suddenly become a law professor with the unlikely specialty of early modern canon law. Goodrich’s work is too concerned with both sexual difference and law to be of much interest to most postmodern male theorists, and so it is rarely cited in “general” philosophical debates. It is also likely to remain uninfluential in feminist legal circles for a different reason, namely that the writing is so full of obscure, erudite allusions that it makes Judith Butler’s books read like detective novels. The Courts of Love: Literature and Other Minor Jurisprudences is nevertheless relevant to this review because it evokes the (probably apocryphal) early medieval institution of women’s courts with jurisdiction over erotic disputes in such a way as to highlight the ways in which modern law is fundamentally constituted not only by the subordination of women’s legal/political interests—as Carole Pateman influentially argued—but also by the subordination of femininity, eroticism, and interpersonal ethics to and under the patriarchal rule of law.

Contrary to what essentialist feminists would do, Goodrich does not suggest that the women’s courts of love—be they myth or history—can be mined with a view to constructing a present-day positive alternative to the patriarchal law of right and might. He uses French medieval legal writings in a purely deconstructive manner, not to create a new feminine law but to destabilize modern law, particularly English common law: “The study of minor jurisprudences is hence also a history of law’s residues, of imaginary and fictive laws, of `itinerancy’ and fiction as also of contingent and local practices…. It promises a history of the legal unconscious” (p. 3).

Goodrich’s project reproduces the Lacanian tendency to deploy a race-blind notion of sexual difference; but it has a methodological affinity with critical race theory’s attempt to understand the deeper, less empirically obvious ways in which white supremacy shapes what Goodrich calls the unconscious of law. Cheryl I. Harris’s contribution to Critical Race Theory, “Whiteness as Property,” for instance, develops an innovative analysis of white identity in U.S. law that uses a wealth of legal evidence convincingly to argue that whiteness functions in U.S. jurisprudence exactly as a form of property. Her article avoids generalizations about law (and about society), giving us instead interesting new thoughts about whiteness and about the presuppositions of property law. Anthony E. Cook, in “Beyond Critical Legal Studies: The Reconstructive Theory of Dr. Martin Luther King, Jr.,” on his part, eschews the generalizations about Black identity found in Wing’s collection in favor of a meticulously documented, historically specific analysis of the potential relevance of Martin Luther King Jr.’s thought, and African American theology in general to theorizations of U.S. law. This article, also in Critical Race Theory, manages to provide a wealth of information about African American thought while simultaneously challenging the tendency of U.S. clinical legal studies to assume the armchair stance of deconstructing law’s authority without giving much thought to the parallel task of building what King called “the Beloved Community.” Like Crenshaw and Williams, Cook argues that the theoretical work of deconstructing concepts and categories needs to be balanced by an effort to develop the conceptual implications of practical community building work.

Cook’s piece, along with well-chosen complementary articles in Critical Race Theory by Gary Pellet, Duncan Kennedy; Gerald Torres and Kathryn Milun, and Patricia Williams, together present an alternative to mainstream rights strategies that manages to walk the fine line between the Scylla of essentializing identities and the Charybdis of dismissing identity from the standpoint of high philosophy. It is unfortunate that gender is not better integrated, substantively, into these articles; but feminists who approach them with a generous spirit will find much food for thought. This invaluable anthology provides rich resources for feminist legal scholars of all races who are dissatisfied with essentialized gender politics but who do not want to follow Drucilla Cornell in jumping out of the frying pan of identity politics only to land in the fire of classic liberalism.

Cornell’s recent work may be out of touch with grassroots activism, but there are other possible theoretical interlocutors—particularly outside of law schools—that could be of use to postessentialist critical race theory. The Lacanian approach presented by Peter Goodrich will not appeal to many, insofar as psychoanalytic thought of all kinds is out of favor among U.S. feminists (with the exception of literary theorists). However, other perspectives that are loosely poststructural without dogmatically following any one Theorist, such as those pursued in postcolonial studies and queer theory, would be very relevant, if only progressive law professors were to read them. Kimberle Crenshaw’s highly influential article, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color”—in Critical Race Theory but absent from the Critical Race Feminism anthology, incidentally—rejects the self-serving politics of righteousness often found under the banners of identity and community. But it also rejects, in even stronger terms, what she calls “vulgar constructionism,” that is, the belief that discovering that race is socially constructed means that one has to minimize racialization as a political factor. Crenshaw has a point insofar as the language of social construction has in many places been appropriated by liberals to attack radicals: but her critique of “vulgar” social constructionism in no way touches the nonvulgar theorizations of gender and sexual identity developed in recent years by Chandra Talpade Mohanty, Ann Stoler, and a host of other poststructuralist writers whose work could further the development of antiracist feminist legal analysis.

Although Crenshaw’s analysis would be enriched by a more vigorous engagement with postcolonial studies and contemporary theory more generally, her analysis passes the pragmatist test (does it work?) with flying colors. Crenshaw argues that identity claims should be modified by the recognition that collectivities such as African Americans are a “coalition,” and she further suggests that insofar as racial oppression continues to operate on the assumption that all Blacks are the same, the “coalition” that is African Americanness will be worth working on and even fighting for. She pragmatically concludes that “history and context determine the utility of identity politics,” an eminently sensible point that could help to dissolve more than one stale debate.

Perhaps “identity,” whatever its political uses at an earlier point in history, has now become an abstraction that blinds us to the very different ways in which oppression and resistance work in different locations. Instead of continuing to wonder whether the work of Derrida, Foucault, and Lacan has indeed put an end to identity claims—a question that, whatever one’s answer, presupposes that politics ought to be philosophically driven—we might do better to learn from the work of William James and John Dewey. James was notorious in his day because, instead of participating in the traditional debate about the existence of God, he decentered the debate between Christians and secularists by saying that God exists insofar as people act according to certain beliefs. That is also what Foucault said about madness and about sexuality: these constructions are real insofar as they have real effects. That is why the view, cited by Crenshaw, that calling something socially constructed amounts to diminishing its importance, is so misleading. Only a hopeless positivist would believe that if one discovers that race or sex or insanity are socially constructed, that makes them somehow less real. From the perspective of U.S. pragmatism—which happens to coincide with Foucault’s view—it makes no sense to ask whether race or gender are socially constructed, because all that matters from the pragmatist perspective are the unquestionably real effects, not the supposed ontology of the phenomenon studied.

If William James were alive today, he would likely agree with Crenshaw that “identity” is a dangerous abstraction and that the task of scholarship is not to argue about abstractions but to document the rich “variety of identity experiences”—that is, the diverse, unpredictable ways in which people are oppressed through identity formation while finding resources for change in that very same identity. “Variety” is a key word here, because—unlike some feminists—James would never have claimed that one’s own experience or that of people just like ourselves will teach us very much. We only understand our identity processes when we educate ourselves about others and are thus able to see our own life in its specificity. Without such knowledge, we will likely leap to generalities about power in general—or about “the” relation between race in general and gender in general—from our personal experience.

Thinking about the various paths taken by critical legal theorists in the United States in relation to identity politics, I am led to the conclusion that when people wave their race or gender or sexual orientation as if that gave them moral authority and instant knowledge, that is identity all right, but it isn’t politics. Conversely, the critique of identity on purely philosophical grounds tends to ignore that oppressed groups do need cultural affirmation, not only as a psychological support but also as a crucial intellectual resource drawing on and affirming the practical community-based efforts that are the lifeblood of critical theory. Cultural affirmation has often meant, in the United States, waving one’s injury as an identity and making others feel guilty—the strategy critiqued by Wendy Brown that has led to such problematic practices as assuming that Black Americans speak for Africans or making straight women feel that their loves are not fit subjects for feminist conversations. But if identity is understood in its historical specificity and is as freed from the dynamic of liberal guilt and shame as is humanly possible, at least some versions of identity-based politics—particularly when they are self-conscious about their own historical specificity—can be valuable, indeed indispensable, resources for critical theories of law and state power.

Identity politics is dead; long live identity. Or is it long live politics?