2AC FW
Our affirmative approach as a foundational criticism is necessary to resolve the
structural antagonisms that formulate law – even the most progressive left legal
reforms recreate those problems and attempt to disentangle the complexities of
gender issues – your framework results in serial policy failure – Our aff is a
prerequisite
Wendy Brown & Janet Halley, 2002 (Left Legalism/Left Critique, Wendy Brown is First Professor of
Political Science at the University of California, Berkeley, where she is also affiliated with the Department of Rhetoric,
and where she is a core faculty member in the Designated Emphasis in Critical Theory. Janet Halley is the Royall
Professor of Law at Harvard Law School. p. 18-25 // JED)
Left legalistic projects, entwined as they are with the regulatory tugs of liberalism and legalism, are going
to produce unintended consequences. We want a critical theoretical engagement with left legalism in part because we want to
apprehend these side effects. To see and to evaluate them, we need to step back from our legalism, to open up the space
for politics that can put legalism under a viewfinder, and to examine both politics and legalism with the
attitude of critique. Legalism's Political Outside Is there such a thing as nonlegalistic political practice, a politics even a few degrees
outside legalism, especially if legalism is not defined simply in reference to the state and law, but no less institutionally codified practices and
So saturated by legalism is contemporary political life that it is often difficult to imagine alternative
ways of deliberating about and pursuing justice. Yet the legal realist point that law is politics by other means should not
commit us to its converse: that all endeavors to shape and order collective Iife are legalistic. Legalism not only carries a politics
(and liberal legalism carries a very specific politics) but also incessantly translates wide-ranging political questions into
more narrowly framed legal questions. Thus politics conceived and practiced legalistically bears a certain
hostility to discursively open-ended, multigenre, and polyvocal political conversations about how we
should live, what we should value and what we should prohibit, and what is possible in collective life.
The preemptive conversion of political questions into legal questions can displace open-ended discursive
contestation: adversarial and yes/no structures can quash exploration; expert and specialized languages
can preclude democratic participation; a pretense that deontological grounds can and must always be found masks the
historical embeddedness of many political questions; the covertness of norms and political power within
legal spaces repeatedly divests political questions of their most crucial concerns. When the available
range of legal remedies preempts exploration of the deep constitutive causes of an injury (think hate speech and
the racial order that makes it sting), when the question of which rights pertain overrides attention to what occasions
the urgently felt need for the right (think abortion and the way reproductive work is organized, valued and [un]remunerated in maledominant orders), we sacrifice our chance to be deliberative, inventive political beings who create our
collective life form. Legalism that draws its parameters of justice from liberalism imposes its own
standards of fairness when we might need a public argument about what constitutes fairness; its
formulas for equality when we may need to reconsider all the powers that must be negotiated in the
making of an egalitarian order; its definitions of liberty at the price of an exploratory argument about the
constituent elements of freedom. As we incessantly refer our political life to the law, we not only sacrifice
opportunities to take our inherited political condition into our own hands, we sacrifice as well the chance
to address at a more fundamental or at least far-reaching level various troubling conditions which appear to
require redress. Consider: What if some of the disturbing aspects of contemporary sex harassment doctrine,
in which redress of gender subordination has been increasingly usurped by greater sexual regulation, can
be traced to a certain failure on the part of second-wave feminism actually to effect a significant
transformation in the social construction of women and men, a project that was once deeply constitutive
effects?
of that political and cultural enterprise? And what if the tendency toward ever more intensive legal
regulation of gender and sexuality is a compensatory response to that failure, a response that
effectively gives up on the project of transforming gender in favor of protecting a historically
subordinated group from some of the most severe effects of that subordination, even as it tacitly defines
women through those effects? If feminism once aimed to make women the sexual equals of men, this aim
entails the complex social, psychological, and political project of making gender differently, and not
simply the legal one of protecting (historically and culturally produced) vulnerable women from
(historically and culturally produced) rapacious men. Indeed, the legal project, in its instantiation of
sexuality as subordinating, especially of women, may be substantially at odds with the political project of
fashioning women as men's substantive equals, that is, as people who cannot be "reduced to their gender" through
an unwanted sexualizing gesture or word. This is not to argue that there is some pure left political space independent of legalism,
nor that left political projects implicated in legalism inevitably sacrifice their aims and values. Rather, it is to assert the possibility of
political life and political projects not fully saturated by legalistic constraints and aims. It is to recover
radically democratic political aims from legalism's grip in order to cultivate collective political and
cultural deliberation about governing values and practices. We remember a mode of activism among
antipornography feminists that was more political than legalistic. Women walked into porn shops and
trashed the pornography, shamed the customers, and mock-shamed themselves. They also led tours through the
porn districts, offering feminist interpretations of pornographic representations and marketing of women, interpretations which others could and
sometimes did argue with. The antiporn activists worked in the name of feminism, and though all feminists did not condone the stance toward
porn and the depiction of women that this activism represented, our dissension itself was not monolithic or fully codified. This
mode of
antiporn activism thus provoked argument and reflection among and across feminists and nonfeminists
alike. This political mode presupposed an interlocutory relationship between those who valued
pornography and those who condemned it, indeed between porn and its consumers or audiences. In that
interlocutory relationship, many women encountered and studied pornography for the first time. As this occurred, women found
themselves having all kinds of responses to porn that could not simply be classified as for or against: some
were distressed by it but grasped their distress as an index of the sexual shame their gender construction entailed; others were drawn to it and
flatly delighted to be let into a sexual order previously designated for men; others were more ambivalent, liking the idea of porn or liking bits of it
but troubled or turned off by the misogynistic (or racist or colonial) strains in it (some were confusingly turned on by these very same strains);
still others were inspired to try to make good porn for women. What was the political cache of this rich array of responses? It produced a wave
old new feminist work on sexuality: new questions, new theories, new domains of research, new practices, new arguments, new positions in every
sense of the word. Hence followed as well new possibilities of alliances with gay men as well as new forms of alliance across a presumed
heterosexual-homosexual divide, the possibility of queer thought, and the invention of new sexual subjectivities and identities through a
proliferation of cultural discourses of and cultural struggles over sexuality. "Feminism"
so constituted was a field of widely
divergent values, beliefs, and practices, all of which had to contest with one another over the question of
"the good" for women. Compare this marvelously fertile political contestation and intellectual exploration
with the social and ideological concomitants of antipornography activists' turn to the state. Antipornography
activism took a legalistic turn with the invention of a tort claim for damages arising from the injury to women's sexual status supposedly inflicted
by pornography (rights legalism) and the deployment of zoning ordinances to shut down the public space devoted to sex commerce (governance
the politics of sexuality in feminism and feminist communities, and the
form of feminist internal critique, changed dramatically. Defining porn narrowly (and badly) as "the graphic sexual
subordination of women," the legalists promulgated local ordinances establishing porn as a violation of women's
civil rights. This move brought into play local governments and judges as authoritative decision
makers. And the arguments that could then be addressed to those decision makers were as flat and impoverished as the arguments
characteristic of the political struggle were multidimensional and rich: to participate in the legalistic moment, feminists had
to declare themselves for or against porn, and even for or against sex, as they took a position on the
ordinances.4 The debate about porn became framed by the terms of free speech, censorship, and privacy rights. In short, it
became consolidated by a narrow rights framework: Should your right not to be violated/offended trump my right to
consume what I want? Does Larry Flynt's free speech silence Catharine MacKinnon's? In this consolidation, all the complexities of
sexual representation, of the imbrication of sexuality and gender, of the relation of fantasy to reality, and
above all, of the extraordinary and detailed range in the sexual construction and desires of women and
legalism). Wherever feminists took this turn,
men were eclipsed. The adversarial structure of rights legalism as deployed by all the parties meant that the stakes
were now "winner takes all." In that context neither side could risk nuance, internal dissension, or
differentiation of positions along a continuum. Hence the debates produced a new form of internal
silencing of each side's constituents; solidarity and a united front became mandatory. Above all, neither side could afford to
break with liberalism (a notoriously impoverished discourse on the subject of sexuality) in its arguments:
the terms of the new debate were set not only by established definitions of equality, civil rights, and free
speech, but by flat and monolithic conceptions of gender, women, sexuality, and representation. And
this debate, desiccated because it adopted rather than contested the terms of liberal legalism, was the form in which the feminist question about
open-ended
political contestation in unbounded spaces and unregulated by settled rules of engagement can be an arena for
raw aggressions and un-self-knowing posturing of the most grandiose sort. Thus, in the political struggle, women
pornography hit the mainstream. To be sure, the porn wars in their political mode had their brutal and punitive dimensions;
accused each other of false consciousness, mocked each other's sexual desires, set themselves up as sexually righteous, and denounced each other
viciously for their positions in these battles. But the
political mode had several virtues that the legalistic mode
distinctively lacked: it was open-ended in the questioning and conversations it incited; it was accessible
to a wide variety of participants (and was probably the most interracial, cross-class, and intersexual
political moment second-wave feminism had); and it occurred in a range of different idioms, from
analytic position papers to poetry to biography. Perhaps most important, because the arguments were about sex,
gender, and representation rather than free speech, censorship, and civil rights, the political mode incited
a substantial body of rich new political, cultural, and psychological inquiry and political
understandings that were both valuable in themselves and gave new life to the social movements that
bred them.
We embrace a fractured communicative community – this is the only way to
encounter difference with appreciation instead of violence
Secomb 00(Linnell, a lecturer in Gender Studies at the University of Sydney “Fractured Community” Hypatia – Volume 15 Number 2
Spring 2000 pg. 138-139
This reformulated universalist model of community would be founded on "a moral conversation in which
the capacity to reverse perspectives, that is, the willingness to reason from the others' point of view, and
the sensitivity to hear their voice is paramount" (1992, 8). Benhabib argues that this model does not assume
that consensus can be reached but that a "reasonable agreement" can be achieved.
This formulation of community on the basis of a conversation in which perspectives can be reversed, also implies a
new understanding of identity and alterity. Instead of the generalized other, Benhabib argues that ethics, politics, and
community must engage with the concrete or particular other. A theory that only engages with the generalized other
sees the other as a replica of the self. In order to overcome this reductive assimilation of alterity, Benhabib
formulates a universalist community which recognizes the concrete other and which allows us to view others as
unique individuals (1992, 10). Benhabib's critique of universalist liberal theory and her formulation of an
alternative conversational model of community are useful and illuminating. However, I suggest that her vision still
assumes the desirability of commonality and agreement, which, I argue, ultimately destroy difference. Her
vision of a community of conversing alterities assumes sufficient similarity between alterities [End Page 138]
so that each can adopt the point of view of the other and, through this means, reach a "reasonable agreement."
She assumes the necessity of a common goal for the community that would be the outcome of the "reasonable
agreement." Benhabib's community, then, while attempting to enable difference and diversity, continues to
assume a commonality of purpose within community and implies a subjectivity that would ultimately collapse
back into sameness. Moreover, Benhabib's formulation of community, while rejecting the fantasy of consensus,
nevertheless privileges communication, conversation, and agreement. This privileging of communication
assumes that all can participate in the rational conversation irrespective of difference. Yet this assumes
rational interlocutors, and rationality has tended, both in theory and practice, to exclude many groups and
individuals, including: women, who are deemed emotional and corporeal rather than rational; non-liberal
cultures and individuals who are seen as intolerant and irrational; and minoritarian groups who do not adopt
the authoritative discourses necessary for rational exchanges. In addition, this ideal of communication fails to
acknowledge the indeterminacy and multiplicity of meaning in all speech and writing. It assumes a singular,
coherent, and transparent content. Yet, as Gayatri Spivak writes: "the verbal text is constituted by concealment as
much as revelation. . . . [T]he concealment is itself a revelation and visa versa" (Spivak 1976, xlvi). For Spivak,
Jacques Derrida, and other deconstructionists, all communication involves contradiction, inconsistency, and
heterogeneity. Derrida's concept of différance indicates the inevitable deferral and displacement of any final
coherent meaning. The apparently rigorous and irreducible oppositions that structure language, Derrida contends,
are a fiction. These mutually exclusive dichotomies turn out to be interrelated and interdependent: their meanings
and associations, multiple and ambiguous (Derrida 1973, 1976). While Benhabib's objective is clearly to allow all
groups within a community to participate in this rational conversation, her formulation fails to recognize
either that language is as much structured by miscommunication as by communication, or that many groups
are silenced or speak in different discourses that are unintelligible to the majority. Minority groups and
discourses are frequently ignored or excluded from political discussion and decision-making because they do
not adopt the dominant modes of authoritative and rational conversation that assume homogeneity and
transparency. The feminist critiques of community have usefully revealed the exclusion of difference and
the abstraction from the specificity of corporeal existence which characterize the dominant philosophical
models of community. Many feminist theorists, however, continue to endorse the apparent necessity of a final
agreement or a unifying solidarity within community. While some, like Young, propose an alternative politics "conceived as a
relationship of Strangers" (Young 1992, 234), there continues, even in this endorsement of heterogeneity, to be an assumption that these diverse
strangers would share a common goal and that this would be the basis for the polity. The goal for Young is a radical, egalitarian democratic
politics (248–56) which enables the differentiation, variety, eroticism, and publicity of city life (236–41). While Young overcomes the liberal and
communitarian imperative of unity and fusion of identity she continues to endorse a commonality in the goal and purpose of community. I
suggest, however, that this risks the re-creation of an affinity between the strangers of the city which would
once again undermine their difference through a fusion of common political projects and goals which
would create a merging of alterity into an identity founded on common purpose. In order to overcome the unifying
and totalizing tendency of community it is necessary both to emphasize the specificity of citizens, as Benhabib has done, and the radical
in order to avoid a final
conflation into sameness through the creation of a common goal it is also necessary to envisage a
community without common ends and projects. Jean-Luc Nancy's work on community develops this
possibility by describing community as an "unworking" without common purpose. UNWORKING
differences of strangers within the polity which is the basis of Young's formulation of city life. However,
COMMUNITY Nancy's
thinking on community marks a radical departure from the universalist conceptions of both
community and subjectivity. Nancy's vision of community and singularity, formulated in the light of Heidegger's Dasein and Mitsein, puts
in question accepted ideas about human existence and society (Heidegger 1992). For Nancy, as for Heidegger, the human existence is not an
individual, subject, or citizen, but, in Heidegger's terms, a "being-there," or in Nancy's, a "singularity." For Nancy, the human existence is a
singularity that is from the outset an inclining towards others and a sharing with and exposure to others.
Legalization perpetuates the idea that prostitutes need to be regulated, which
further stigmatizes them Thompson 00 (Susan, J.D. Candidate, Capital University Law School, 2000, “Prostitution: A Choice
Ignored”, Hein Online///TS)
Lastly, the legalization of prostitution through a system of licensing and registration stigmatizes
prostitutes as a group of women in need of regulation and control. 493 Although prostitutes are no longer
stigmatized as criminals, under a system of criminalization, they are stigmatized as "bad girls., 494 The
system of legalization perpetuates the ideology of the whore/ madonna dichotomy by emphasizing that
whores are the source of diseases and licensing is the only way to control their behavior. 495
Alternatively, the madonna is the pure, good girl, who unlike the "other" woman, does not have to be
controlled by strict regulations. Arguably, there is a fine line between the whore/madonna which can
easily be crossed by not only selling sex, but by giving it away improperly through adultery or
promiscuity.496 This forced stigmatization may cause some prostitutes to work illegally, for fear that
registration and licensing may make their identity known.497 Under this scheme of control, the prostitute
is not granted the same rights of privacy afforded to the clients who enter the brothels.498 Clients who
seek the service of a, brothel prostitute do not face registration or risk friends and family finding out about
their activities without their knowledge. 499 Had clients been forced to register, before visiting a brothel,
one is left to wonder, how many, if any, would continue to frequent brothels under such strict conditions?
AT: Property as Person
Pateman’s analysis is too sweeping – it denies female sexual desire and ignores
issues such as race and class
Boucher 2003 – Joanne is a professor at University of Winnipeg, Male power contract theory: Hobbes
and Locke in Carole Pateman’s The Sexual Contract, Canadian Journal of Political Science 23.1 http://search.proquest.com/docview/204618798?pq-origsite=summon
Carole Pateman’s The Sexual Contract offers a powerful re-interpretation and critique of social contract
theory. It has been widely praised and well received; indeed, it seems to have achieved the status of a
classic work of feminist theory. Nonetheless, several commentators have taken issue with Pateman’s
sweeping critique of contractualism. For instance, Susan Moller 0km contends that “Pateman gives up too
easily on the potential uses of contract for feminism” and Jane S. Jaquette offers that “what contract
provides indispensably is a strong commitment to individual agency and a clear indication of what justice
in a dynamic society requires: equality, choice, negotiation. Contract theory does not deny community but
calls on members actively to create it” (Jaquette, 1998: 218; 0km, 1990: 666). While in agreement with
these concerns about Pateman’s dismissal of contract as such, this article focuses on problems associated
with her use of the concept “law of male sex right” to underpin her claim that a sexual contract precedes
the social contract. I will concentrate on Pateman’s interpretation of Hobbes’s and Locke’s contractualism
in order to illustrate the limited utility of the concept “law of male sex right” as the prism through which
contractualism may be analyzed. This focus on Hobbes and Locke is warranted given that Pateman
identifies them as the pivotal figures who originate modem social contract theory. I will show that
Pateman’s interpretation of their contractualism based on the notion of “law of male sex right” is far too
strained in terms of the logic of her argument as well as the textual evidence. Underlying the specific
concerns about the persuasiveness of Pateman’s reading of Hobbes and Locke is a more general one about
the usefulness of the notion of the “law of male sex right.” It is my view that this concept does not offer
as fruitful a basis on which to establish a gendered critique of contract theory as Paternan hopes; indeed, it
arguably presents a host of problems. For instance, it presents a model of (hetero)sexuality in which
sexuality seems to be exclusively about male desire. Moreover, male sexual desire is assumed inevitably
to entail aggression. This is a one-side notion of sexual relations which does not recognize female sexual
desire. Further, the use of the notion leads Pateman to focus on sexuality as the lynchpin of women’s
oppression at the expense of other equally important dimensions, such as child bearing and child rearing.
This notion of “male sex right” posits an overly cohesive and uniform concept of male power which does
not account for the complexity of power in social relations, notably those produced by racial and class
inequalities. However, in raising these questions about Paternan’s analysis, I recognize that she does not
claim to be offering an account of all these dimensions of power relations; indeed, she explicitly indicates
that her work may be seen as part of a broader and emerging critique of contract theory. What I am
suggesting is that Paternan’s starting point may not be the most useful. it is this broader issue of specific
analyses of Hobbes’s and Locke’s contractualism that is dealt with in this article.
The neg’s IFeminist (libertarian feminism) is incompatible with any progress made
by feminism at all – our radical approach that recognizes prostitution as a symptom
of the larger structure is necessary for any solvency.
Sorooshyari, 2011 (Nahid, attorney NYC, “The Tensions Between Feminism and Libertarianism: A Focus on
Prostitution” 3 Wash. U. Jur. Rev. 167 (2011)
IFeminists address the abolitionist proposal of partial decriminalization and argue that it is impractical. First, IFeminist Almodovar claims that the
policy does not address whether police would be expected to arrest all customers of prostitutes, or only the customers of "streetwalkers," thus
"leaving alone the vast number of customers who use the services of call girls, escorts, or massage therapists[.]"17°Since it would be impossible
to arrest even all customers of "streetwalkers," IFeminists worry that partial decriminalization would lead to arbitrary enforcement of the policy,
thus leaving room for police discrimination and coercion.171 IFeminists also argue that partial decriminalization would encourage police to
threaten to arrest prostitutes for failure to cooperate if they would not give the police information on their clients.172 Finally, IFeminists worry
that partial decriminalization would exacerbate the problem of resource allocation by taking money and manpower away from the investigation of
truly violent crimes.173 While
the autonomy perspective is the leading feminist perspective on prostitution,
different strains of feminism lend different nuances to the approach. In particular, the radical feminist and the sexpositive feminist have unique takes on prostitution. Radical feminists view sexual objectification as the root of all
gender inequality,I74 and thus for a radical feminist, prostitution is a symptom of the problem. A radical feminist
would not be opposed to partial decriminalization or the abolitionist perspective in general, but would not
focus her efforts there. Instead, the radical feminist would focus on empowering women caught within the
institutional structure of sexual objectification itself. A sex- positive feminist is skeptical of traditional feminism's
views on prostitution, because a sex-positive feminist fears any rhetoric or policy that could undermine a women's sexual expression.I75Sexpositive feminists would, however, support the abolitionist perspective as long as its efforts are not co-opted to further an agenda of anti-sex
morality. Thus, the pure abolitionist perspective poses no problems for sex-positive feminists, but they will be skeptical of any ways in which the
abolitionist agenda or rhetoric is used to oppress women's sexuality. Since the abolitionist perspective in its true form does not undermine
women's free sexual agency, sex-positive feminists should not ordinarily take issue with the abolitionist perspective; instead, they add a layer to
The IFeminist sees the
abolitionist perspective as harmful to women and sees the abolitionist idea of partial decriminalization as
illogical. The different solutions IFeminists and feminists propose for dealing with prostitution are reflections of each theory's view of the
problem. IFeminists view the problem as the regulation of prostitution; feminists view the problem as the
existence and maintenance of prostitution through a patriarchal system. For IFeminists, prostitution's
existence presents no problem, because it is a valid economic choice for women to make. There are no
structures present in today's society to prevent women from making any choices they wish to make about
their personal and professional lives. IFeminism, just like libertarianism, denies the present existence of
patriarchy, which is apparent in their view on prostitution. A belief in the existence of patriarchy and its
effect on the lives of women is paramount to any type of feminism.176 For this reason, the IFeminist
theory seems not to be an extension of traditional feminist values. It seems that IFeminism is an extension
of libertarian values to the lives of women. V. CONCLUSION This Note has shown the tensions between libertarian philosophy
its analysis. The IFeminist view on prostitution is more aligned with the libertarian view than the feminist view.
and feminist philosophy. In doing so, this Note has pointed to core beliefs in the two philosophies that make them inherently incompatible. Now
that the government no longer explicitly sanctions discrimination of women or inequality between the sexes, the tensions between libertarianism
and feminism are heightened. The debate around prostitution is representative of these modern day tensions. IFeminist philosophy illustrates
IFeminism is such
a break from the core beliefs of traditional feminism that it is not representative of traditional feminism.
Women are, and should be, factored into different philosophies. One must ask whether the IFeminist
philosophy is merely libertarianism's incorporation or consideration of women and concerns specific to
women rather than a mode of feminist thinking. This Note, through its theoretical analyses and application of these theories to
these tensions. While it is not this Note's aim to claim that IFeminists are not truly feminists, this Note does suggest that
the issue of prostitution, suggests the former. 174 Elizabeth Bernstein, What's Wrong with Prostitution? What's Right with Sex- Work?
comparing Markets in Female Sexuality, 10 HASTINGS WOMEN'S L. J. 91, 95-6 (1999). "[S]exual mastery is the major means through which
men¶ affirm their manhood. When a man enters into the prostitution contract he is not interested in sexually indifferent, disembodied services; he
contracts to buy sexual use of a women for a given period." CAROLE PATEMAN, THE SEXUAL¶ CONTRACT 207 (Stanford Univ. Press
1988). 175 Bernstein, supra note 176, at 98.