Abstract
Jill Gentile’s response to my review of her book (JAPA 68/3) raises two important concerns. One is whether it is possible to oppose a phallocentric, masculinist order—be it the symbolic order of psychoanalysis, the legal order, the social order, or the order of language itself—without reproducing traditional gender binaries, even if one’s aim is to deconstruct gender essentialism. The second is whether it is possible to synthesize a Lacanian account of desire with the account of intersubjectivity found in object relations and relational psychoanalysis. Conjoined, these two issues challenge us to think more deeply about what it means to dismantle our phallocentric legal and symbolic orders and replace them with a “feminine law”—the title, coinage, and overarching theme of Gentile’s book (2016). As I asked in my review, what makes the alternative that Gentile proposes feminine, and what makes it law?
Although Gentile seems to think otherwise, she and I are in agreement that we need to resist the traditional view of law as located exclusively in the realm of reason, which has traditionally been conceptualized as a male preserve. Like her, I believe the qualities that have historically been excluded from the dominant conception of law, the nonrational sides of human experience, historically associated with the female, are not antithetical to law but, rather, constitutive of another kind of law, one less beholden to the Enlightenment project of autonomous individualism and more attuned, as Gentile rightly says, to the need to surrender to desires that are “not of our individual sovereign choosing.” We—and I include both Gentile and myself in this decidedly nonroyal “we”—call this feminine not to reinstate the traditional gender binary but precisely to upend it by claiming the qualities traditionally denigrated as female by a masculinist order. We call it law because we reject the proposition that the elements of human experience traditionally associated with the female constitute the antithesis of law, order, and authority.
Where Gentile and I part company, I think, is with respect to the question of which of the qualities traditionally associated with the female (and opposed to masculinity) are to be embraced as the basis for a “feminine” law. Broadly speaking, there are two different ways in which the female has traditionally been figured in contradistinction to the male: the caregiver or the carnal temptress, the mother or the lover, helpmate or harlot. Both sides of this Madonna/whore complex are denied the capacity for ratiocination and self-determination traditionally accorded exclusively to (racially and economically privileged) males. Both, therefore, could serve as the basis for an alternative way of conceptualizing, ordering, and practicing law. Yet they are very different. To ascribe to law the traditionally maternal functions of providing a sense of security, stilling anxiety, nurturing, binding, and minding—in the double sense of providing physical and emotional care and of facilitating the primal psychic integration and then populating the mind with perceptions and beliefs—as I have done in my analyses of the knowledge-constituting functions of law, conjures up a form of legal authority very different from one based on liberating the erotic force of desire from the repressive forces of reason and power.
I understand that Gentile wants to resist a binary opposition between desire and reason, choice and constraint, freedom and law; I do too. But it is not at all clear whether it is possible to reconcile the functions of “minding,” which have historically been assigned to the female and, more specifically, the good-enough mother, with the wish to release the “motility of desire and disruptive unconscious elements across the limits and law of the symbolic function.” Nor is it clear that Gentile wants to do so. Like Gentile, I am drawn to a synthesis of Winnicott’s theories (and other object relations and relational ideas) with the French tradition of Lacan. Like her, I object to false binaries, including those between male and female, mothering and desiring, eroticism and authority, caretaking and lawgiving. I, too, prefer to triangulate and find the spaces in between. But before we can arrive at a considered judgment as to whether it is possible (let alone desirable) for law to free and democratize desire, we need to think through what kind of freedom, and what kind of authority, such a law entails. I continue to applaud Gentile for inviting us to think this through; and I continue to have questions about what it means.