1 For evidence of other advantages women, on average, may have over men, see Oggins, Jean, Inglehart, Marita, Brown, Donald R., & Moore, William, “Gender Differences in the Prediction of Medical Students' Clinical Performance,” 43 J. Am. Med Women's A. 171, 173 (Nov.-Dec. 1988) (Because of higher person-oriented skills, women medical students do better than men on clinical performance tests).Google Scholar

2 Women make up only 8% of the total number of surgeons in this country (Dalessandri, Kathie, “The Surgical Work Force and Women Surgeons,” 43 J. Am. Med Women's A. 169 (Nov.Dec. 1988) and 11.7% of residents in surgery. Crowley, Anne E., Etzel, Sylvia I., & Shaw, Helen A., “Graduate Medical Education in the United States,” 258 J.A.M.A. 1031, 1036 (1987). The number of women entering medicine generally is rising; 27% of residents in 1986 were female. Only 4.5% of female residents, however, choose surgery. Id.Google Scholar

3 The evidence of gender steering is strongest in the areas of education and employment. The most recent research in education demonstrates that while girls and boys start school roughly equal in skills and confidence, girls are behind boys by the end of high school, especially in math and science scores, and that along the way, girls experience discrimination in the amount of attention they receive from their teachers, in the textbooks they are assigned, in the tests they take, and in how their male classmates treat them. See Greenberg-Lake Analysis Group, Inc. & American Association of University Women Educational Foundation, Shortchanging Girls Shortchanging America (1991). In the employment area, Vicki Schultz has offered the most searching analysis of the institutional structures and practices that affect the kind of jobs in which women have an “interest.” See Schultz, Vicki, “Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument,” 103 Harv. L Rev 1749 (1990).CrossRefGoogle Scholar

4 Some of the best examples of feminist scholarship that have focused specifically on the role of the concept of difference in masking injustice in the social order are found in three edited collections of essays: Hester Eisenstein & Alice Jardine, eds., The Future of Difference (Boston, G. K. Hall, 1980); Elizabeth Meese & Alice Parker, eds., The Difference within: Feminism and Critical Theory (Amsterdam: J. Benjamin Pub, Co., 1988); and Deborah L. Rhode, ed., Theoretical Perspectives on Sexual Difference (New Haven, Conn.: Yale University Press, 1990). Several essays in Linda J. Nicholson, ed., Feminism/Postmodernism (New York: Routledge, 1990), also explore numerous theoretical and practical issues raised by difference. See also Moira Gatens, Feminism and Philosophy: Perspectives a Difference and Equality (Bloomington: Indiana University Press, 1991); Iris Marion Young, Justice and the Politics of Difference (Princeton, N.J.: Princeton University Press, 1990) (“Young, Justice”); Elizabeth V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (Boston: Beacon Press, 1988). Specifically in the legal context, see Katharine T. Bartlett & Rosanne Kennedy, eds., Feminist Legal Theory: Readings in Law and Gender (Boulder, Colo.: Westview Press, 1991), and sources listed in note 10.Google Scholar

5 Minow (at 105–7) labels this either/or approach to difference the “abnormal-persons approach.”.Google Scholar

6 Minow (at 107–10) calls this approach the “rights-analysis approach.”.Google Scholar

7 William E. Connolly, Identity/Difference: Democratic Negotiations of Political Paradox X (Ithaca, N.Y.: Cornell University Press, 1991) (“Connolly, Identity/Difference”.).Google Scholar

8 Board of Education v. Rowley, 458 U.S. 176 (1982).Google Scholar

9 Hence the chapter title “Making All the Difference.”.Google Scholar

10 other feminists have also focused on the social arrangements that construct pregnancy in ways that disadvantage women. See, e.g., Littleton, Christine A., “Reconstructing Sexual Equality,” 75 Calif L Rev 1279 (1987); Lucinda Finley, “Transcending Equality Theory: A Way out of the Maternity and the Workplace Debate,” 86 Colum. L Rev. 1118 (1986).CrossRefGoogle Scholar

11 For a discussion of how thoroughly cultural and nonnative standards of merit tend to be, see Young, Justice 200–206 (cited in note 4).Google Scholar

12 While the law is thought to be better suited to controlling intentional than unintentional forms of discrimination, it seems quite clear that the law has fallen far short in preventing even the most egregious forms of intentional employment discrimination. Minow cites a study by Kristin Bumiller showing that two-thirds of the white women and members of minority groups reporting discrimination on the job do not sue: complaining through the civil rights laws risks being labeled a troublemaker, requires acceptance of the role of victim, and is potentially demeaning and humiliating (at 92, citing Bumiller). More recent anecdotal and survey evidence reported by the New York Times suggests that because of the low monetary stakes in some cases and the increasingly unfavorable precedents set by the Supreme Court in job discrimination cases, victims of job discrimination simply cannot find attorneys willing to take their cases. See Steven A. Holmes, “Workers Find It Tough Going Filing Lawsuits over Job Bias,”N.Y. Times, 24 July 1991, at A1. A survey in May 1991 by the 1,000-member National Employment Lawyers Association, for example, found that 44% of its members rejected more than 90% of the job discrimination cases that had been brought to them. Id The federal agency charged with enforcing job discriminations laws, the Equal Employment Opportunity Commission, brought only 524 suits in 1990 and has a backlog of about 45,000 cases “that have yet to be even investigated.”Id.Google Scholar

Group remedies are the obvious alternative to individual suits against acts of intentional discrimination against particular individuals, but such remedies have been steadily eroded by the federal courts, and it is not clear how much of this erosion will be reversed by the Civil Rights Act of 1991. Minow sees the debate over group remedies to be a debate about shifting the focus from remedial processes that “still locate the source of the difference in the ‘different’ person” to options that change the “usual workplace patterns and presumptions” (at 93).Google Scholar

13 Gerald David Jaynes & Robin M. Williams Jr., eds., A Common Destiny: Blacks and American Society (Washington, D.C.: National Academy Press, 1989) (reporting on current status of black Americans in U.S. society).Google Scholar

14 See Judith N. Shklar, The Faces of Injustice 2 (New Haven, Conn.: Yale University Press, 1990) (“Shklar, Faces of Injustice”.).Google Scholar

15 While analogies between race and sex can be dangerously simplistic, Catharine MacKinnon's analysis of society as an affirmative action plan for men provides a useful point of comparison for the advantages available on the basis of race in this society: [V]irtually every quality that distinguishes men from women is already affirmatively compensated in this society. Men's physiology defines most sports, their needs define auto and health insurance coverage, their socially designed biographies define workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experience and obsessions define merit, their objectification of life defines art, their military service defines citizenship, their presence defines family, their inability to get along with each other—their wars and rulerships—defines history, their image defines god, and their genitals define sex. For each of their differences from women, what amounts to an affirmative action plan is in effect, otherwise known as the structure and values of American society.Google Scholar

Catharine A. MacKinnon, Feminism Unmodified 36 (Cambridge, Mass.: Harvard University Press, 1987) (footnotes omitted).Google Scholar

16 One commentator put it this way: “there is no such thing as a person without a bootstrap. Everybody has the power to choose.” Debra J. Saunders, “Strung up by His Bootstraps,”Ralegh News & Observer, 18 Aug. 1991, at D1, D2.Google Scholar

17 For one challenge to the effort by Thomas's supporters to fuse his identity with that of his grandfather, see “Judge Thomas's Grandfather—and Mine,”N.Y. Times, 8 Sept. 1991, OpEd, at A12. See also Ellen Goodman, “The Trip from the Bottom,”Boston Globe, 25 July 1991, OpEd, at 19.Google Scholar

It is harder to explain how the advantages Justice Thomas received in having been admitted to Yale Law School and in having received a series of appointments and nominations based in substantial part on his race—advantages usually counted as “discriminatory” affirmative action—were reconciled with Justice Thomas's portrayal of himself as a man who had pulled himself up “by his own bootstraps.” In some important measure, of course, this reconciliation was not achieved. By just about any measure, Clarence Thomas was understood to be an unimpressive nominee, having achieved none of the distinction as lawyer, judge, or intellect that one might wish to have on the nation's highest court. Within current assumptions about race in this country, this lack of distinction, along with the tangible evidence that Thomas had been aided along the way by affirmative action, could not but reinforce those extremely damaging stereotypes about the “lesser qualifications” of blacks. By appointing to the Court an unqualified black who had benefited from affirmative action, President George Bush (deliberately?) made a mockery of affirmative action and furthered its damaging construction as an instrument of special advantages for the unqualified.Google Scholar

Clarence Thomas benefited at the hearings to answer Anita Hill's charges of sexual harassment from other unstated norms and expectations. For example, many found it easy to understand how tragic it would be for these charges to destroy him, given that appointment to the Supreme Court was the job toward which he had been striving for many years. One columnist expressed the view of many that Judge Thomas was justified in stonewalling the charges and shading the truth, because his accusers would have exaggerated the significance of what had really happened between him and Ms. Hill and thus eliminated his once-in-a-lifetime career opportunity. See Orlando Patterson, “Race, Gender, and Liberal Fallacies,”N.Y. Times, 20 Oct. 1991, sec. 4, at 15. In contrast, the public seemed to have a hard time understanding why a woman who had been harassed would not have immediately reported the harassment, left her job, or otherwise burned her bridges to the harasser whose endorsement would certainly have been required for any professional advancement to which she may have aspired.Google Scholar

18 A similar phenomenon may have been at work in the highly publicized sexual assault case of William Kennedy Smith. Even as membership in the Kennedy family is seen as the source of great advantage because of the power and influence of that particular family, the support of the Kennedy family during Smith's trial was not seen as an unfair advantage; instead, the support from his family made the prospect of a guilty verdict for Smith seem less deserved and potentially more tragic.Google Scholar

19 See Stephen L. Carter, Reflections of an Affirmative Action Baby (New York: Basic Books, 1991).Google Scholar

20 As Radin, Margaret Jane has written, “the dominant group—those who created the categories of subordination in the first place—controls the discourse … of affirmative action … [to reinforce] those categories of subordination.” Radin, “Affirmative Action Rhetoric,” 8 Soc Philosophy & L 130, 131 (1991).Google Scholar

21 Women surgeons are not only more likely to be unmarried than male surgeons, but even if married, they perform a greater proportion of the family responsibilities. One study showed that 51% of male residents' spouses or partners did the home chores alone, while only 15% of female residents' spouses or partners did so. Landau, Carol, Hall, Stephanie, Wartman, Steven A., & Macko, Michael B., “Stress in Social and Family Relationships during Medical Residency,” 61 J Med. Educ. 654, 658 (1986).Google ScholarPubMed

22 Consider also the example of height, a physical characteristic with a number of consequences generally perceived to be natural or inevitable—lack of competitiveness in basketball, difficulty in reaching water fountains or podiums, the need to alter ready-to-wear clothes, disqualification from consideration as a handsome “stud” or “looker.” Consistent with this perception, the characteristic of shortness is attributed to certain individuals, leaving it to those individuals to seek special accommodations to their environment or to their doctors to alter their condition. See Barry Werth, “How Short Is Too Short: Marketing Human Growth Hormone,”N.Y. Times, 16 June 1991, sec. 6, at 14 (describing powerful, experimental drug treatment prescribed for some children to “correct”“non-growth-hormone-deficiency”—being short without medical explanation—despite uncertainty about the positive or negative effects of the treatments). Rarely is the “normal” environment that defines shortness questioned. Little more insight is demonstrated with respect to the concept of personal beauty. Although it is widely claimed that beauty is “in the eye of the beholder” (and only “skin-deep”), few are able to resist the impulse to judge others as if standards of beauty were objective and timeless, or to attempt to restructure themselves to conform to those standards. The consequences of acting on this impulse are anything but neutral. See, e.g., Naomi Wolf, The Beauty Myth (New York: William Morrow & Co., 1991) (demonstrating how “objective” standards of beauty are founded on assumptions that further male dominance and the subordination of women).Google Scholar

23 485 U.S. 439 (1988).Google Scholar

24 For a more thorough and complex analysis of this case along these lines, see Winter, Stephen L., “An Upside/Down View of the Countermajoritarian Difficulty,” 69 Tex. L. Rev. 1881, 1905–19 (1991).Google Scholar

25 Shklar, , Faces of Injustice 1 (cited in note 14).Google Scholar

26 Id.Google Scholar

27 Id. at 2.Google Scholar

28 For the apparent examples, see Hentoff, Nat, “The Ordeal of the ‘Offensive Professor,’” Village Voice 10–16 April 1991, at 22–23. For the persuasive case that many of these examples are misrepresented and exaggerated accounts, see Tushnet, Mark, “Political Correctness, the Law and the Legal Academy,” 4 Yale L & Humanities 127 (1992).Google Scholar

29 This is certainly true at Duke University, one of the institutions singled out by Dinesh d'Souza and other critics as being a hotbed of political correctness. At Duke, traditional courses in Western civilization, Shakespeare, , Mill, John Stuart, and the like remain securely in place. Only courses in subject areas that are said to be watering down the curriculum—feminist theory, African-American studies, etc.—are under siege. The average female Duke student shuns the label “feminist.” In contrast, no shame appears to attach to association with conservative causes. Outspoken conservative students have their own newspaper. An active chapter of the National Association of Scholars speaks freely. At Duke academic traditionalists head almost all departments and hold almost all chaired professorships. Duke has two females deans, one at the School of Law, the other at the School of Nursing; all other top leadership positions are held by white men. Bartlett, , “Some Facts about Political Correctness,” Wall St. J., 6 June 1991, at A19. See also Tushnet, , 4 Yale L. & Humanities at 128–29 (cited in note 28).Google Scholar

30 Id. at 154.Google Scholar

31 See Lawrence, Charles R. III, “Regulating Racist Speech on Campus: A Modest Proposal 1990 Duke L J. 431; Tushnet, 4 Yale L & Humanities at 128–29, 156–57; Richard Abel, “Evaluating Evaluations: How Should Law Schools Judge Teaching 40 J. Legal Educ. 407, 410 & n.17 (1990).Google Scholar

32 See Mary Ann Hoberman, A House Is a House for Me (New York Viking Press, 1978). The entire book is a close study of relationalism. Consider, for example, the following observation about the fluidity of categories and the alterability of relationships:.Google Scholar

A box is a house for a teabag.Google Scholar

A teapot's a house for some tea.Google Scholar

If you pour me a cup and I drink it all up.Google Scholar

Then the teahouse will turn into me.Google Scholar

33 Thus, even Judge Richard Posner, who is otherwise quite critical of Minow's book, concedes of her social-relations thesis: “All this is true, and important, and still resisted so strenuously as to be worth reiteration.” Richard A. Posner, “Us. v. Them,”New Republic, 15 Oct. 1990, at 47, 48.Google Scholar

34 The strength of familiar ways of thinking reinforced through habit has led, among feminists, to much soul-searching about such matters as why even “liberated women” continue to be the ones who wash the toilets. In an article on the halting progress of feminism, Vivian Gornick offers a partial answer: It often seems to me the progress of feminism is very much like that of psychoanalysis. Roughly speaking, there are two parts to analysis. First comes insight: collecting data on the damage within; then comes extrication from the personality that has developed in response to the damage. The first part is easy, the second part hell. Insight comes in a rush: swift, exciting, dramatic. Extrication is interminable: repetitious, slogging, unesthetic. At least 32 times a year for six or seven years the patient repeats original insight as if for the first time. And then, when the analyst can hardly believe this is going to happen again, the patient announces, “Now I see clearly what I have not seen before.” The analyst passes a tired hand across a weary brow and replies: “You saw that clearly last month, and last year, and the year before. When are you going to act on what you see?”.Google Scholar

“Who Says We Haven't Made a Revolution?”N.Y. Times Mag., 15 April 1990, sec. 6, at 24, 27.Google Scholar

35 Barbara Herrnstein Smith labels this tendency “cognitive conservatism,” in an article which provides a highly sophisticated analysis of the relationship between belief and resistance. See her “Belief and Resistance: A Symmetrical Account,” 18 Critical Inquiry 125 (1991).Google Scholar

36 See Bartlett, Katharine T., “Feminist Legal Methods,” 102 Harv. L Rev. 829, 880–87 (1990) (describing “positional” truths).Google Scholar

37 It is in this same vein that Minow quotes Lon Fuller: “[T]he trouble with the law does not lie in its use of concepts, nor even in its use of ‘lump concepts’… [but] in the fact that we have sometimes put the ‘lumps’ in the wrong places, and … forgotten that the ‘lumps’ are the creations of our minds” (at 370–71).Google Scholar

38 Winter, 69 Tex. L Rev. at 1882 (cited in note 24). Winter, like Minow, is more impressed with the costs of failing to expose and challenge those background assumptions than he is of the costs of instability. He writes of these larger dangers: “To the very extent that the legal decision maker gains the ability to focus her attention and imagination on the task at hand, she will be correspondingly unconscious of the implications of the conceptual tools that she employs in its resolution.”Id at 1883.Google Scholar

39 Along the same lines, Smith, Barbara Herrnstein writes that whether “cognitive conservatism” is advantageous or disadvantageous depends on the conditions. See Smith, 18 Critical Inquiry at 138 (cited in note 35).Google Scholar

40 Connolly, Identity/Difference 64–65 (cited in note 7).Google Scholar

41 Id at ix.Google Scholar

42 Id. at 204.Google Scholar

43 Id. at 94.Google Scholar

44 Id. at 66.Google Scholar

45 For example, Minow quotes the questions asked by Barbara Johnson, a professor of French and comparative literature: “How can the study of suppressed, disseminated, or marginalized messages within texts equip us to intervene against oppression and injustice in the world?” (at 202).Google Scholar

46 This was the suggestion the Supreme Court endorsed in the CalFed litigation. See California Federal Sav. & Loan Ass'n v. Guerra, 479 U.S. 272 (1987). The point of the litigation, of course, was to test the limits of legislative action, not employer prerogative. The ability of private parties to avoid discrimination is not ordinarily a defense to state-created discrimination. Moreover, even if the problem of fairness is shifted to the employer, the normative questions simply reappear: Where does the employer have to stop? Is it enough to offer job security to workers who take leaves for any medical disabilities? Any family-related temporary leave? Temporary leave for any good reason? What is good reason?.Google Scholar

47 Note that one does not have to be completely excluded—as blacks, children, the handicapped, etc., are not completely excluded from our society—to be marginalized. One can have a safe place to go, financial resources, and even a U.S. senator to represent one's group—and still have virtually no power or standing outside the confines of one's group.Google Scholar

48 Minow (at 385) labels this problem the “paradox of intolerance.”.Google Scholar

49 Posner, New Republic, 15 Oct. 1990, at 47, 48 (cited in note 33).Google Scholar

50 Posner writes that when Minow does attempt to address a concrete problem, her solutions are not “reassuring.”Id at 48. The example he cites is Minow's proposal that all the children in a class which includes a deaf child learn sign language. In fact this proposal has been implemented in a school in Albany, California, with excellent results. Telephone conversation between author and Evelyn Frank, 9 Feb. 1992.Google Scholar

51 For different versions of nonfoundationalist normativity, see Bartlett, 103 Harv. L. Rev. at 880–87 (cited in note 36) (positional truth); Donna Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective,” 14 Feminist Stud. 575–84 (1988) (partial, locatable, critical knowledges); Richard A. Schweder, Thinking Through Cultures: Expeditions in Cultural Psychology 29 (Cambridge, Mass.: Harvard University Press, 1991) (multiple objective worlds): Barbara Herrnstein Smith, “The Unquiet Judge: Activism without Objectivism in Law and Politics,” in Allan Megill, ed., Rethinking Objectivity (forthcoming 1992) (“Smith, ‘The Unquiet Judge’”) (constructivist-interactionist accounts of knowledge). A number of theorists have situated their concepts of relational truth in specific evaluative domains. Some have focused on the concept of our best moral selves. See, e.g., Charles Taylor, Sources of the Self The Making of the Modern Identity 58 (Cambridge, Mass.: Harvard University Press, 1989) (we evaluate what is better and worse in reference to the “best account” we have of ourselves); Nel Noddings, Caring: A Feminine Approach to Ethics and Moral Education 5 (Berkeley: University of California Press, 1984) (moral truths determined by “the best picture I have of myself”). Others emphasize the degree of orderedness that any candidate for truth may offer to existing perceptions. See, e.g., Robert O. Johann, “An Ethics of Emergent Order,” in H. Beckley & C. Swezey, eds., James M. Gustafson's Theocentric Ethics 190 (Macon, Ga.: Mercer University Press, 1988) (arguing that reasoned ethical values are those which “fulfill our quest for good order”); Steven L. Winter, “Indeterminacy and Incommensurability in Constitutional Law,” 78 Calif L Rev. 1441, 1505 (1990) (judging his own understanding of the Constitution by what “makes the most sense in terms of what you already know to be true of your own experience”).Google Scholar

52 Again Connolly's relational approach runs parallel, although without explicit reference, to Minow's. To Connolly, ethical life is replete with paradox, and it is the effort to deny or submerge paradox that stimulates authoritarian politics. See Connolly, Identity/Difference 64–94 (cited in note 7).Google Scholar

53 Minow's notion, here, is similar to Drucilla Cornell's notion of the “self that constantly seeks to divest itself of sovereign subjectivity.” See Cornell, Drucilla, “Post-Structuralism, the Ethical Relation, and the Law,” 9 Cardozo L Rev. 1587, 1625 (1988). For other legal theorists who have sought to incorporate the notion of effort into some notion of situated truth seeking, see Bartlett, 103 Harv. L Rev. at 881 n.229 (cited in note 36).Google Scholar

54 Minow's examples of what can happen when this individual effort is made tend to emerge from discussions of how judges ought to look at the cases before them. She argues, for example, that a challenge to the death penalty looks quite different from the perspective of the black defendant who is 4.3 times as likely to be sentenced to death for killing a white than for killing a black (at 66–68) and that a challenge to a zoning ordinance restricting group homes looks quite different from the perspective of persons who have no meaningful opportunity for independence except in group living situations (at 114–18).Google Scholar

55 Jack Balkin makes a similar point in describing the social theory underlying critical legal studies work: “The very structure of individual perception, belief and desire, and thus the terms of individual choice, are already shaped by culture and ideology even before the individual begins to choose.” J. M. Balkin, “Ideology as Constraint,” 43 Stan. L Rev. 1133, 1137 (1991). For the “classic” statement of this position, Balkin cites Peter L. Berger & Thomas Luckmann, The Social Construction of Reality: A Sociology of Knowledge (Garden City, N.Y.: Doubleday, 1966).CrossRefGoogle Scholar

56 Nor does she distinguish the dynamics of individual and institutional acquisition and transformation of belief. For an excellent discussion of both, see Smith, 18 Critical Inquiry 125 (cited in note 35).Google Scholar

57 See Schlag, Philip, “Fish v. Zapp: The Case of the Relatively Autonomous Self,” 76 Geo. L Rev. 37 (1987).Google Scholar

58 Again, William Connolly's work (Identity/Difference, cited in note 7) is helpful in extending Minow's analysis. To Connolly, a unified, self-responsible agent is the version of the self that “contains resentment in its very formation” and therefore that most tends to transform difference into otherness, evil, abnormality, and irrationality. To the extent that individuals are seen (mistakenly) as entirely responsible for themselves, it is easier to judge their differences (and the consequences of those differences) as blameworthy or deserved. Id. at 78.Google Scholar

59 For a discussion of this tension within the CLS movement, see Balkin, , 43 Stan. L. Rev. 1133 (cited in note 55).CrossRefGoogle Scholar

60 Mary Douglas, whom Minow quotes, puts it in terms of “non-fit”: “mercifully, the system of classification never fits. When there is non-fit, there is choice” (at 371–72). See also Schneider, Elizabeth M., “The Dialectic of Rights and Politics: Perspectives from the Women's Movement,” 61 N.Y.U. L Rev. 589 (1986) (describing how legal rights expanded and evolved as existing legal doctrines were made to fit women's actual experiences); Smith, 18 Critical Inquiry at 135–38 (describing how experiences affirm, alter, and winnow beliefs) (cited in note 35) Jack Balkin, among others, has developed a notion of subjective experience as one both dependent on and differentiated from the cultural constraints arising from settled social arrangements. See Balkin, , 43 Stan. L Rev. at 1146 (cited in note 55). See also Winter, 78 Calif L Rev. at 1493–94 (cited in note 51): “The elaboration of meaning is simultaneously the product of past sedimentation, current human intentions, and larger cultural contexts that support its advent.”.Google Scholar

61 Connolly, Identity/Difference at 210 (cited in note 7).Google Scholar

Anthropologist Richard Schweder's work on anthropological understandings of objectivity and subjectivity suggests a possible source of the capacity to identify gaps and to understand other perspectives. In attempting to explain the apparent diversity of human conceptions of reality, Shweder hypothesizes the “universal latency” of all perceptions, “in which everyone has got everything.” coexisting with “specialized institutionalizations of incompatible and diverging manifestations.” Shweder, Thinking Through Cultures 6 (cited in note 51). “Others are not fundamentally alien to us,” Shweder writes, “just inconsistently and importantly different in their conception of things. … Yet the conceptions held by others are available to us, in the sense that when we truly understand their conception of things we come to recognize possibilities latent within our own rationality, or existent in the history of our own reason, and those ways of conceiving of things become salient for us for the first time, or once again.”Id at 5. I read Schweder's hopeful hypothesis to be that if we are born with the capacity to adopt any one of a number of set of cultural assumptions, it is possible that the capacities not yet engaged remain dormant, but (with some effort) retrievable, like learning a new language or way of expressing emotion.Google Scholar

62 Connolly, Identity/Difference at 204 (cited in note 7).Google Scholar

63 Id. at 176.Google Scholar

64 Winter, Steven, in almost everything he has recently written, urges such a blend. See his “Foreword: On Building Houses,” 69 Tex. L Rev. 1595, 1603 n.35 (1991) (collecting references).Google Scholar

Since to some extent what makes sense to us is shaped by the conceptions on which previous categories were made, it is almost inconceivable that those norms will represent a vastly significant break from the past. See Winter, 78 Calif L Rev. at 1468 (cited in note 51). In Winter's view, self-consciousness is not a means to achieve “spontaneous freedom to reconstruct the social world. To the contrary, the potential yield of situated self-consciousness is rather more like a topographic map of the sedimented field in which transformative efforts necessarily take place.”Id at 1502.Google Scholar

65 Efforts by scholars who identify themselves with the postmodern project to make the case for human agency have almost invariably fallen back on the sorts of objectivist premises ruled out of order by that project. See, e.g., Radin, Margaret Jane & Michelman, Frank, “Pragmatist and Poststructuralist Critical Legal Practice,” 130 U. Pa. L. Rev. 1019, 1058 (1991): It seems a possibility worth considering that there is not, and is not going to be, any critical speaker for whom the reconstructive, the visionary, the committed moment is not always already coming, and thus is not always already here. We can deconstruct because we can reconstruct. … As the reconstructive moment seems ineradicable, so too does the human experience of agency. It seems, in other words, a possibility worth considering that the problematic, elusive, “humanist” experience of subjectivity—agency—is an historically irreversible, inexpungible, constitutive aspect of our experience, of (human) being. Part of what we do, as concept-making strivers caught in forms of life, is think about the good—the better—world and ourselves acting towards it. We cannot deny our own agency. (We cannot speak the sentence of denial except as speaking subjects, affirming by speaking the sentence [t]hat the sentence means to deny.) We can call agency into question, and we had better, but to call into question is also to (re) affirm, (re)create, (re)construct. William Connolly takes a different track, although he, too, finds it necessary to make certain (in his case, negative) assumptions about the nature of the human subject: “We are not predesigned to be responsible agents, but we cannot dispense with practices of responsibility. Connolly, Identity/Difference 116 (cited in note 7).CrossRefGoogle Scholar

66 Id at x.Google Scholar

67 Id. at 33.Google Scholar

68 Id. at 46.Google Scholar

69 For Connolly's extended discussion of the multiple forms of contingency, see id. at 173–75.Google Scholar

70 Id. at 34.Google Scholar

71 Id. at 200.Google Scholar

72 By difference in emphasis, I mean not only how prominent the notion is in the overall thesis but how highly valued the notion appears to be. A subtle example arises in each scholar's use of the concept of distance. For Minow, “social distance” is a form of exclusion to be avoided (at 224), while for Connolly, the “distances that divide us” are a value to be acknowledged and preserved, through a respectful engagement among adversaries. Id at 196–97. My point in using this example is not that either would disagree with the substantive point that the other is making but that their respective usages of the concept of distance reveal somewhat different orientations.Google Scholar

73 Id.Google Scholar

74 Id.Google Scholar

75 See, e.g., Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies 1–33 (Durham, N.C.: Duke University Press, 1989) (the abandonment of formalism does not have any normative consequences); Smith, “The Unquiet Judge” (cited in note 51) (the elimination of objectivist claims would not eliminate all respectable justifications for legal or political claims).Google Scholar

76 See Connolly, , Identity/Difference 35 (cited in note 7).Google Scholar

77 For one such criticism, see Fineman, Martha L., “Images of Mothers in Poverty Discourses,” 1991 Duke L J. 274, 282–85.Google Scholar