California State University, Dominguez Hills
University of Wisconsin, Parkside
Created: March 30, 2001
Latest update: March 30, 2001
jeannecurran@habermas.org

Text for one of our ACJS papers in Washington in April 2001.

Our goal in this analysis, as Hal Pepinsky so graciously clarified for us, is to describe praxis that we believe has enabled us to establish a climate of interaction in which crime, as harm inflicted by one upon an "other," is less likely to occur because of the different orientation the climate offers for interpersonal relationships.

Susan, I'm just going to go through this as we did on the phone. We'll edit tomorrow. I'm too tired tonight to be coherent.

First, Hal is right. We are not trying to prevent crime within the dominant discourse of the criminal justice system. But we have good reason for not doing so, very similar reasoning to that used by Spivak when she quotes particularly Amin on the way in which capitalism, through the colonization of less dominant sovereign territories, was able to capture a forum, for the North (or Western Civilization as we are wont to call it).

The North captured the forum in at least two ways I want to deal with here. One way was superior aggressive force. We won the war. And even the U.S. Supreme Court said, in the Native American cases that fought over land tenure in Florida, "we won the war; we make the rules. I believe my law professor said of that "Indians, 0, U.S. 3." But we weren't the only ones. Most of our wars have been over territory and resources, and the sovereignty that won has generally been the one with the most fire power. I think we could safely call that adversarial.

The second way I want to discuss is the North's profound interest in what I think Habermas would call instrumental reasoning, reasoning aimed at getting what we want. In that interest, since what most of the sovereigns wanted was to plunder resources for their own benefit, witness the gold of South America and the taxes in Boston that led to the Boston Tea Party, the language that grew up around the trade that produced so much wealth was the language the North brought into the Sourth, and that language, the dominant discourse, constrained the imaginary of those who lived in that structural context. When the South began to re-examine the tenets of their own beliefs as colonialism ended, one of the after-effects was that they could not shake completely the dominant discourse under which they had been colonized, for they had learned to think in such patterns, and to have their ideas accepted and acted upon (their agency, in other words) according to the degree to which they fit in with the dominant discourse.

Think for example of Galileo and Copernicus and Einstein, everyone who ever challenged the basic concepts of the dominant discourse. Because the dominant discourse is generally out-of-awareness and is made up of normative expectations, it is hard to resist in the manner described by Covaleskie that reseembles disciplinary power.

And here we encounter Foucault. I am bothered by Noam Chomsky's dismissal of Foucault and many of the French school as not leading to praxis. Article is in Noam Chomsky's archives online. I agree that it's a pain to try to wade through so much esoteric language and splitting off of sub-disciplines, but I find it structurally violent to decide that just because someone doesn't present his validity claim adequately, he doesn't have one. I think Habermas' insistence for legitimacy upon the right of every citizen to be heard in good faith requires us to make an effort to apply our skills at reasoning and/or praxis to the re-interpretation of those claims, that they might be more effectively heard and taken into consideration. I like Chomsky so much, and I don't blame him for his frustration with Foucault, but I think what Derrida is saying in Spivak's citations of him is that we don't throw out the philosophy with the obtuse explication of the philosopher. Instead, we need to search out nuggets of thought that could lead us to alternative theories and praxis, as we stand upon the shoulders of giants (Merton). Derrida considers Neitzche thus. Jonathan Lear does the same with Freud. And so do many others. Unless I'm mistaken this is paralogy (Lacan?).

Spain foisted her appropriation of land as a means of land tenure in Latin and South America. England through trade, foisted a similar land speculation in the colonies.According to Amin, via Spivak, when England colonized India her representatives had little interest in acculturating the Indians into a capital system. They simply wanted a market for trade so they could benefit from India's many resources. But in the process of developing that market and that trade, many learned that holding land meant profit. And so began the shift to land tenure as practiced in the North.

Now Amin and Spivak bring up another point: Marxism was developed primarily as opposing capitalism, as an attempt to humanize a social system that Marx saw as injust. Amin and Spivak present the thesis that the North developed capitalism as a response to a weak feudal system in the North. If I understand correctly, that means that others won the right to sovereignty of some of the land from the sovereign, as in the Magna Carta, but the system of holding the land in fee tail and turning the land itself into a commodity, was not the same as the pattern of land tenure in the South.

Amin's and Spivak's points, and I may be mixing them up a little, are that, unlike the North, the South had a strong feudal system from which spun a system of land tenure based on tribute. They maintain that Marx was unable to account for the growth of capitalism only in the developed North, which had a weak feudal system. In the strong feudal system of the South, land was held more in common, and not seen as a commodity in and of itself. So also might we explain the land tenure of indigenous peoples in the Americas.

Derrida, in this instance via Spivak, says that one cannot excuse Marx simply on the grounds that this was the 19th Century. Marx was aware that his predictions of the eventual rise of the oppressed to establish a system of greater justice as fairness, was unable to predict the results that occurred in the South. They attribute this failure to comprehend the application of the theory to the "Asian Mode of Production" was based on the difficulties even great thinkers encounter in moving beyond the constraints of the structural context which surroungs them. Agency is limited by structural context, with which it is interdependent.

Now how does this lead to the role of feminist theory in transforming discourse? Oy, this is complex. Women, like colonials, in most of the countries which led to today's corporate globalization patterns, lost the war. Men held, for the most part, the sovereign power that could make war and control those it had forced to submit. But aside from the history of this early development, women learned the language and ideas of the structural context in which they lived. That constrained their imaginary, making it seem as if the context in which they found themselves was invevitable, natural, and right. Then, as they began to discover, often through consciousness raising, (MacKinnon, Towards Theory of a Feminist State??) the feelings, the imaginary, that had for so long been suppressed, and as they tried to speak of this imaginary, they were challenged on the grounds that what they offered was not valid, for the dominant discourse "knew" what alternatives were and were not possible. They "knew" that difference was deviant, and that the majority ruled. And here the language harmed us as it harmed all those of the South

When we come to express an idea, such as "What women say is to be taken as valid, and they need not prove that they are right. That was Catharine MacKinnon's contribution. She insisted that the ideas expressed in consciousness raising sessions were valid. But the language troubled us, and other feminists came to explain why wwe seemed to think and judge differently from men. Women had their own way of knowing (Ways of Knowing, Belinsky et al.), and Carol Gilligan ascribed to us a different "voice." Not necessary. Women had had no access to any forum to speak of their validity claims except those controlled by men and those within the confines and limitations of their own "appropriately situated context." It was considered inappropriate for women to be aggressive or competitive. Is it little wonder then that we tend to judge less competitively and take into more consideration interpersonal relationships. We had largely been confined to the private sphere in which such relationships loomed, not to the public sphere which saw no need to tend to the relationships that were left more appropriately in our hands.

I think this can be stated in terms of Fellman's paradigm shift. There are not two ways of thinking. There is one continuum, with the ever-present tension between the individual and the community. We need not to consign either men or women to the individual or the community concerns exclusively, or even primarily, but to recognize that both men and women need to learn judgment and cognitive skills to balance the two, just as Fellman says he seeks neither adversarialism nor mutuality, but a balance between the two. Instrumental reason, tempered by mutuality, is the balance we are seeking.

We have actually attempted to do this in our classrooms. We are trying to teach in a non-violent way, both structurally non-violent and with attention to the ease with which we harm others through a lack of sensitivity to difference. We are turning the classroom environment into a trusting climate in which the community of the group is considered.

Then, Susan, the new Table of Contents should be illustrative of the approach we have used to transform the discourse in a structurally violent institution of higher learning.

References:

• Hal Pepinsky, A Peacemaking Primer. In Criminal Justice, Social Justice.
• Martha Minow, Making All the Difference: Inclusion, Exclusion in American Law.
• Gayatri Spivak, A Critique of Postcolonial Reason.

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