1. María Lugones, "Playfulness, World-Traveling, and Loving Perception," in Women, Knowledge, and Reality, ed. Ann Garry and Marilyn Pearsall (Boston: Unwin Hyman, 1989), 275-290; Trinh T. Minh-ha, Framer Framed (New York: Routledge, 1992); and Gloria Anzaldúa, Borderlands, La Frontera: The New Mestiza (San Francisco: Aunt Lute Books, 1987).

2. See Judith Butler's response to Seyla Benhabib in "Contingent Foundations: Feminism and the Question of 'Postmodernism,'" Praxis International II, no. 2 (July 1991), 150-165.

3. See the contributions to the following: At the Boundaries of Law: Feminism and Legal Theory, ed. Martha Albertson Fineman and Nancy Sweet Thomadsen (New York: Routledge, 1991); Feminist Jurisprudence, ed. Patricia Smith (New York: Oxford University Press, 1993); and Feminist Legal Theory: Foundations, ed. D. Kelly Weisberg (Philadelphia: Temple University Press, 1993).

4. See Shane Phelan, Identity Politics: Lesbian Feminism and the Limits of Community (Philadelphia: Temple University Press, 1989).

5. See the essays collected in Home Girls: A Black Feminist Anthology, ed. Barbara Smith (New York: Women of Color Press, Kitchen Table, 1983); and This Bridge Called My Back: Writings by Radical Women of Color, ed. Cherríe Moraga and Gloria Anzaldúa (New York: Women of Color Press, Kitchen Table, 1981).

6. Todd Gitlin, "The Rise of Identity Politics," Dissent (spring 1993), 172.

7. See the critical assessment of identity politics within feminism from Mary Louise Adams, "There's No Place Like Home: On the Place of Identity in Feminist Politics," Feminist Review 31 (spring 1989), 22-33.

8. Nancy Fraser, "Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy," in Habermas and the Public Sphere, ed. Craig Calhoun (Cambridge: MIT Press, 1992), 123.

9. See Martha Minow, Making All the Difference (Ithaca: Cornell University Press, 1990), 36. break

10. Ed Cohen, "Who are 'We'? Gay Identity as Political (E)motion," in Inside/Out: Lesbian Theories, Gay Theories, ed. Diana Fuss (New York: Routledge, 1991), 172.

11. Ibid., 73. See also Diana Fuss, Essentially Speaking: Feminism, Nature, and Difference (New York: Routledge, 1989), 104; Judith Butler, "Imitation and Gender Insubordination," in Inside/Out 13-31; and Bonnie Honig, "Toward an Agonistic Feminism: Hannah Arendt and the Politics of Identity," in Feminists Theorize the Political, ed. Judith Butler and Joan W. Scott (New York: Routledge, 1992), 215-235.

10. Ed Cohen, "Who are 'We'? Gay Identity as Political (E)motion," in Inside/Out: Lesbian Theories, Gay Theories, ed. Diana Fuss (New York: Routledge, 1991), 172.

11. Ibid., 73. See also Diana Fuss, Essentially Speaking: Feminism, Nature, and Difference (New York: Routledge, 1989), 104; Judith Butler, "Imitation and Gender Insubordination," in Inside/Out 13-31; and Bonnie Honig, "Toward an Agonistic Feminism: Hannah Arendt and the Politics of Identity," in Feminists Theorize the Political, ed. Judith Butler and Joan W. Scott (New York: Routledge, 1992), 215-235.

12. Combahee River Collective, "A Black Feminist Statement," in This Bridge Called My Back, ed. Moraga and Anzaldúa, 212.

13. Fuss, Essentially Speaking, 101.

14. See Nancy Fraser, "Toward a Discourse Ethic of Solidarity," Praxis International 5, no. 4. (January 1986), 425-429; and Richard Rorty, Contingency, Irony, and Solidarity (Cambridge: Cambridge University Press, 1989).

15. See Axel Honneth, "Integrität und Missachtung. Grundmotive einer Moral der Anerkennung," Merkur 12 (December 1990), 1043-1053; Jürgen Habermas, "Justice and Solidarity: On the Discussion Concerning Stage 6," Philosophical Forum 21, nos. 1-2 (fall-winter 1989-90), 32-52; and Sharon Welch, "An Ethic of Solidarity and Difference," in Postmodernism, Feminism, and Cultural Politics, ed. Henry A. Giroux (Albany: State University of New York Press, 1991), 83-99.

16. Kathleen B. Jones, Compassionate Authority: Democracy and the Representation of Women (New York: Routledge, 1993), 228-229.

17. Chandra Mohanty, "Cartographies of Struggle," introduction to Third World Women and the Politics of Feminism, ed. Chandra Talpade Mohanty, Ann Russo, and Lourdes Torres (Bloomington: Indiana University Press, 1991), 2.

18. See Nancy Fraser's interesting and important account of the possibility of alliances between poststructuralism and critical theory, "False Antitheses: A Response to Seyla Benhabib and Judith Butler," Praxis International 11, no. 2 (July 1991), 166-167. Pointing out the convergence between her arguments and various others often thought to represent "opposing camps," Bonnie Honig makes a similar point; see her Political Theory and the Displacement of Politics (Ithaca: Cornell University Press, 1993), 14.

19. See Richard J. Bernstein, The New Constellation: The Ethical-Political Horizons of Modernity/Postmodernity (Cambridge: MIT Press, 1992); Axel Honneth, "Das Andre der Gerechtigkeit: Habermas und die ethische Herausforderung der Postmoderne," Deutsche Zeitschrift für Philosophie 2 (1994), 195-220; Emilia Steuerman, "Habermas vs. Lyotard: Modernity vs. Postmodernity," in Judging Lyotard, ed. Andrew Benjamin (London: Routledge, 1992), 99-118; and Stephen White, Political Theory and Postmodernism (Cambridge: Cambridge University Press, 1991). Habermas himself has also acknowledged the importance of a Foucaultian approach, finding it "useful for revealing hidden asymmetries and power structures. . . . It's a good guess to suppose that most discourses are of that kind, that they do imply power structures that are not only hidden but systematically latent, that is, structurally concealed from their participants." See Jürgen Habermas, "Concluding Remarks," in Habermas and the Public Sphere, ed. Calhoun, 478. break

1. I take this formulation, in part, from Ronald Dworkin, "A Year Later, the Debate Goes On," New York Times Book Review, 25 October 1992, 39. See also the essays on the Thomas hearings in Race-ing Justice, En-gendering Power, ed. Toni Morrison (New York: Pantheon Books, 1992).

2. bell hooks, Feminist Theory: From Margin to Center (Boston: South End Press, 1984), 43-65.

3. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990), 14-15.

4. See Seyla Benhabib, "The Generalized and the Concrete Other," in Feminism as Critique, ed. Seyla Benhabib and Drucilla Cornell (Minneapolis: University of Minnesota Press, 1987), 87.

5. Ibid.

4. See Seyla Benhabib, "The Generalized and the Concrete Other," in Feminism as Critique, ed. Seyla Benhabib and Drucilla Cornell (Minneapolis: University of Minnesota Press, 1987), 87.

5. Ibid.

6. This expression comes from Elizabeth V. Spelman's "On Treating Persons as Persons," Ethics 88 (1977-78), 150-161. She writes, "I treat you as the person you are just insofar as I recognize and respond to those features of you which, in your view, are necessary to who you are" (151).

7. See also Axel Honneth's discussion of intimate relationships of mutual recognition in "Integrity and Disrespect," Political Theory 20, no. 2 (May 1992), 192-193.

8. Nel Noddings writes, "The caring attitude, that attitude which expresses our earliest store of memories of both caring and being cared for, is universally accessible." Nel Noddings, Caring (Berkeley: University of California Press, 1984), 5. See also Gilligan's contention that "an ethic of care rests on the premise of non-violence—that no one should be hurt." Carol Gilligan, In a Different Voice (Cambridge: Harvard University Press, 1982), 174.

9. See Noddings, Caring, 84.

10. Rorty, Contingency, Irony, and Solidarity, 192.

11. Ibid., 190.

12. Ibid.

10. Rorty, Contingency, Irony, and Solidarity, 192.

11. Ibid., 190.

12. Ibid.

10. Rorty, Contingency, Irony, and Solidarity, 192.

11. Ibid., 190.

12. Ibid.

13. This seems to be what Nancy Fraser has in mind with her concept of the standpoint of the collective concrete other: "This standpoint would require one to relate to people as members of collectivities or social groups with specific cultures, histories, social practices, values, habits, forms of life, vocabularies of self-interpretation and narrative traditions." Fraser, "Toward a Discourse Ethic of Solidarity," 428.

14. bell hooks, Yearning: Race, Gender, and Cultural Politics (Boston: South End Press, 1990), 37.

15. Dworkin, "A Year Later," 38.

16. Manning Marable, "Clarence Thomas and the Crisis of Black Political Culture," in Race-ing Justice, ed. Morrison, 74-75.

17. Dworkin, "A Year Later," 38.

18. Kimberlé Crenshaw, "Whose Story Is It, Anyway?" in Race-ing Justice, ed. Morrison, 417.

19. "The deification of Thomas and the vilification of Anita Hill were prefigured by practices within the black community that have long subordinated gender domination to the struggle against racism. In the process, the particular continue

experiences of black men have often come to represent the racial domination of the entire community, as is demonstrated by the symbolic currency of the lynching metaphor and the marginalization of representations of black female domination." Crenshaw, "Whose Story Is It, Anyway?" 417.

20. Kendall Thomas, "Strange Fruit," in Race-ing Justice, ed. Morrison, 370.

21. Crenshaw, "Whose Story Is It, Anyway?" 420.

22. Ibid., 435.

21. Crenshaw, "Whose Story Is It, Anyway?" 420.

22. Ibid., 435.

23. Compare Michael Walzer, "It is not difficult to imagine a community whose members have no honor to defend: their solidarity would be extraordinary, beyond all doubt, beyond testing." Michael Walzer, Obligations: Essays on Disobedience, War and Citizenship (Cambridge: Harvard University Press, 1970), 201.

24. See hooks's account of the way in which the expectation that one's "sisters" would provide unqualified approval at any point, that "sisters" were always to avoid conflict and mutual criticism, clashed with the confrontations and disagreements that were always part of the women's movement. hooks, Feminist Theory, 43-65.

25. For example, see Michael Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982).

26. Lynet Uttal, "Nods That Silence," in Making Face, Making Soul: Haciendo Caras, ed. Gloria Anzaldúa (San Francisco: Aunt Lute Books, 1990), 317-331.

27. Ibid., 318.

28. Ibid., 319.

26. Lynet Uttal, "Nods That Silence," in Making Face, Making Soul: Haciendo Caras, ed. Gloria Anzaldúa (San Francisco: Aunt Lute Books, 1990), 317-331.

27. Ibid., 318.

28. Ibid., 319.

26. Lynet Uttal, "Nods That Silence," in Making Face, Making Soul: Haciendo Caras, ed. Gloria Anzaldúa (San Francisco: Aunt Lute Books, 1990), 317-331.

27. Ibid., 318.

28. Ibid., 319.

29. My analysis of these two different ways of using the term "we" relies heavily on Jürgen Habermas's discussion of the asymmetry between speech acts in the first-person singular and first-person plural. He writes: "The expression "we" is used not only in collective speech actions vis-à-vis an addressee who assumes the communicative role of you, under the reciprocity condition that we in turn are you for them. In individual speech actions, we can also be used in such a way that a corresponding sentence presupposes not the complementary relation to another group but that to other individuals of one's own group." Jürgen Habermas, "The Development of Normative Structures," in Communication and the Evolution of Society, trans. Thomas McCarthy (Boston: Beacon Press, 1979), 107-108.

30. Uttal, "Nods That Silence," 319.

31. See also Charles Taylor's "Theories of Meaning," in Human Agency and Language: Philosophical Papers, vol. 1 (Cambridge: Cambridge University Press, 1985). He writes: "What the expression has done here is to create a rapport between us. . . . Language creates what one might call a public space, or a common vantage point from which we survey the world together" (259).

32. Uttal, "Nods That Silence," 319.

33. My discussion here draws from Jürgen Habermas, The Theory of Communicative Action, vol. 1, Reason and the Rationalization of Society, trans. Thomas McCarthy (Boston: Beacon Press, 1984), 302. Habermas argues that the binding effect of a speaker's utterance, its ability rationally to motivate a hearers acceptance, stems not from the validity of the utterance itself, but from the warranty that the speaker can redeem the claim to validity. He thus distinguishes between continue

three components of action oriented toward reaching understanding: the validity of the action or underlying norm; the claim that the conditions for its validity are satisfied; and the redemption of the validity claim, in other words, grounding the claim that the conditions for the validity of the action or norm are satisfied.

34. Trinh T. Minh-ha, "Not You/Like You: Postcolonial Women and the Interlocking Questions of Identity and Difference," in Making Face, Making Soul, ed. Anzaldúa, 375.

35. Uttal, "Nods That Silence," 317.

36. George Herbert Mead, Mind, Self, and Society (1934; reprint, Chicago: The University of Chicago Press, 1962), 261.

37. See Linda Alcoff "Cultural Feminism versus Postmodernism: The Identity Crisis in Feminist Theory," Signs 13, no. 3 (1988), 405-436; Kimberlé Crenshaw, "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics," in Feminist Legal Theory: Foundations, ed. Weisberg, 383-395; and Norma Alarcon * , "The Theoretical Subject(s) of This Bridge Called My Back and Anglo-American Feminism," in Making Face, Making Soul, ed. Anzaldúa, 365-366.

38. Anzaldúa, Borderlands, 79.

39. Mead, Mind, Self, and Society, 168.

40. Benhabib, "The Generalized and the Concrete Other," 87.

41. Ibid.

42. Ibid.

40. Benhabib, "The Generalized and the Concrete Other," 87.

41. Ibid.

42. Ibid.

40. Benhabib, "The Generalized and the Concrete Other," 87.

41. Ibid.

42. Ibid.

43. Mead, Mind, Self, and Society, 154.

44. To be sure, respect for the difference of the other does not mean that one must blindly accept the other's claims. Depending on the context, the other, when questioned, may be obliged to offer good reasons for the assertion that her difference is relevant in the context at hand.

45. hooks, Yearning, 8.

46. Cornel West, "Black Leadership and the Pitfalls of Racial Reasoning," in Race-ing Justice, ed. Morrison, 397.

47. Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990), 167.

48. I am indebted to Lutz Wingert for this point. See also Jürgen Habermas, Faktizität und Geltung (Frankfurt: Suhrkamp Verlag, 1992), 374.

49. Julia Kristeva, Nations without Nationalism, trans. Leon S. Roudiez (New York: Columbia University Press, 1993), 29.

50. Chantal Mouffe, "Democratic Citizenship and the Political Community," in Dimensions of Radical Democracy, ed. Chantal Mouffe (London: Verso, 1992), 234-235.

51. Elizabeth Mensch and Alan Freeman, The Politics of Virtue (Durham: Duke University Press, 1993).

52. See also Jürgen Habermas, "Nachholende Revolution und linker Revisionsbedarf: Was heisst Sozialismus heute?" in Die Moderne—ein unvollendetes Projekt (Leipzig: Reclam-Verlag, 1990). Habermas writes: "In the setting of a politically extensive integrated society, indeed one in the horizon of a worldwide communication net, the idea of a solidary social existence is itself only to be had in an abstract form, namely in the shape of a justifiable intersubjectively shared expectation. All would have to be able to expect from the institutionalized pro- soft

cedure of inclusive and democratic opinion and will-formation that these processes of public communication have for them a justifiable supposition of reasonableness and effectiveness" (232). (My translation).

53. Nancy Fraser explodes the ambiguities involved in the general assumption that people need shelter to live: "Do homeless people need forbearance, so that they may sleep undisturbed next to a hot-air vent on a street comer? A space in a subway tunnel or a bus terminal? A bed in a temporary shelter? A permanent home? Suppose we say the latter. What kind of permanent housing do homeless people need? Rental units in high-rises in central city areas remote from good schools, discount shopping and job opportunities? Single-family homes designed for single-earner, two-parent families? And what else do homeless people need in order to have permanent homes? Rent subsidies? Income supports? Jobs? Job training and education? Day care?" Nancy Fraser, Unruly Practices: Power, Discourse and Gender in Contemporary Social Theory (Minneapolis: University of Minnesota Press, 1989), 163.

54. Rorty divides "the human race into the people to whom one must justify one's beliefs and the others. The first group—one's ethnos —comprises those who share enough of one's beliefs to make fruitful conversation possible." Richard Rorty, "Solidarity or Objectivity?" in Objectivity, Relativism and Truth: Philosophical Papers, vol. 1 (Cambridge: Cambridge University Press, 1991), 30.

55. See Lutz Wingert, "Haben wir moralische Verpflichtungen gegenüber früheren Generationen? Moralischer Universalismus und erinnernde Solidarität," Babylon 9 (November 1991), 78-93.

56. I owe this example to Carolin Emke.

57. Habermas, "Justice and Solidarity," 47.

1. Henry A. Giroux, "Living Dangerously: Identity Politics and the New Cultural Racism: Towards a Critical Pedagogy of Representation," Cultural Studies 7, no. 1 (January 1993), 6.

2. See Wendy Brown, "Wounded Attachments," Political Theory 21, no. 3 (August 1993), 390-410; and Kirstie McClure, "On the Subject of Rights: Pluralism, Plurality, and Political Identity," in Dimensions of Radical Democracy, ed. Mouffe, 108-127.

3. For a brief yet comprehensive overview, see Steven Seidman, "Identity and Politics in a 'Postmodern' Gay Culture: Some Historical and Conceptual Notes," in Fear of a Queer Planet: Queer Politics and Social Theory, ed. Michael Warner (Minneapolis: University of Minnesota Press, 1993), 105-142. For a comparative and historical discussion of the lesbian and gay movement, see Barry D. Adams, The Rise of a Gay and Lesbian Movement (Boston: G. K. Hall and Company, 1987).

4. Seidman, "Identity and Politics," 111.

5. Adams, The Rise of a Gay and Lesbian Movement, 64.

6. Vera Whisman, "Identity Crises: Who Is a Lesbian, Anyway?" in Sisters, continue

Sexperts, Queers: Beyond the Lesbian Nation, ed. Arlene Stein (New York: Plume, 1993), 51.

7. See Phelan, Identity Politics, 37-45; and Radicalesbians, ''The Woman-Identified Woman," in Out of the Closets: Voices of Gay Liberation, ed. Karla Jay and Allen Young (New York: New York University Press, 1972), 172.

8. Adrienne Rich, "Compulsory Heterosexuality and Lesbian Existence," in The Lesbian and Gay Studies Reader, ed. Henry Abelove, Michèle Aina Barale, and David M. Halperin (New York: Routledge, 1993), 239.

9. Thus, in Lesbian Nation: The Feminist Solution (New York: Simon and Schuster, 1977), Jill Johnson writes: "The lesbian/feminist is the woman who defines herself independently of a man" (153).

10. Cheryl Clarke, "Lesbianism: An Act of Resistance," in This Bridge Called My Back, ed. Moraga and Anzaldúa, 128.

11. Seidman, "Identity and Politics," 114. See also Allen Young, "Out of the Closets, Into the Streets," in Out of the Closets, ed. Jay and Young, 6-31.

12. Adams, The Rise of a Gay and Lesbian Movement, 78.

13. Douglas Crimp writes: "All queers have extensive experience with the closet, no matter how much of a sissy or tomboy we were as children, no matter how early we declared our sexual preferences, no matter how determined we are to be openly gay or lesbian. The closet is not a function of homosexuality in our culture, but of compulsory and presumptive heterosexuality." Douglas Crimp, "Right On, Girlfriend!" in Fear of a Queer Planet, ed. Warner, 305.

14. Judith Butler, "Imitation and Gender Subordination," in Inside/Out, ed. Fuss, 16.

15. Seidman, "Identity and Politics," 125.

16. See also Shane Phelan, "(Be)Coming Out: Lesbian Identity and Politics," Signs 18, no. 4 (summer 1993), 765-790.

17. Lisa Kahaleole Chang Hall, "Bitches in Solitude: Identity Politics and Lesbian Community," in Sisters, Sexperts, Queers, ed. Stein, 227.

18. See Cindy Patton's discussion of the connections between new-right and queer identity. She writes: "Gay identity comes from spilling the beans, from coming out of the closet to claim the other's derogatory speech as one's inverted reality. New-right identity cloisters self-revelation, reinterprets proud gay speech as confessions to the distinctive perversion that gay liberation's reversal sought to expose as fraud. If coming out says, 'We're queer, we're here, get used to it,' new-right identity appropriates this to say, 'We knew it,' and to society, 'We told you so.' What operates as a performative act of identity assertion for 'queers' is read by the new right as descriptive, as not performative at all." Cindy Patton, "Tremble, Hetero Swine!" in Fear of a Queer Planet, ed. Warner, 146-147.

19. Of course, the move away from separate strategies for lesbians and gay men and toward a larger alliance was also a result of the AIDS crisis and the increased homophobia of the eighties.

20. Hall, "Bitches in Solitude," 229. See also Biddy Martin, "Lesbian Identity and Autobiographical Difference[s]," in The Lesbian and Gay Studies Reader, ed. Abelove, Barale, and Halperin, 274-293.

21. Dan Danielson, "Representing Identities: Legal Treatment of Pregnancy and Homosexuality," New England Law Review 26 (summer 1992), 1453-1508. break

22. Lauren Berlant and Elizabeth Freeman, "Queer Nationality," in Fear of a Queer Planet, ed. Warner, 193-229.

23. David J. Thomas, "Gay Political Visions: The 'Q' Word" (paper presented at the annual meeting of the American Political Science Association, Washington, D.C., September 1993), 21.

24. Ibid., 16.

23. David J. Thomas, "Gay Political Visions: The 'Q' Word" (paper presented at the annual meeting of the American Political Science Association, Washington, D.C., September 1993), 21.

24. Ibid., 16.

25. See Janet E. Halley, "The Construction of Heterosexuality," in Fear of a Queer Planet, ed. Warner, 82-104; Teresa de Lauretis, "Queer Theory: Lesbian and Gay Studies, An Introduction, " differences 3, no. 2 (1991), iii-xviii; John D'Emilio, "Capitalism and Gay Identity," in The Lesbian and Gay Studies Reader, ed. Abelove, Barale, and Halperin, 467-476; and Butler, Gender Trouble .

26. Cornell West, Keeping Faith: Philosophy and Race in America (New York: Routledge, 1993), 17.

27. Jean Smith, "I Learned to Feel Black," in The Black Power Revolt, ed. Floyd B. Barbour (Boston: Porter Sargent Publisher, 1968), 211.

28. West, Keeping Faith, 283.

29. Stokely Carmichael, "Power and Racism," in The Black Power Revolt, ed. Barbour, 65.

30. West, Keeping Faith, 279.

31. Glenn C. Loury, "Free at Last? A Personal Perspective on Race and Identity in America," in Lure and Loathing: Essays on Race, Identity, and the Ambivalence of Assimilation, ed. Gerald Early (New York: Penguin Books, 1993), 7-8.

32. For an interesting overview, see Diana Fuss's chapter "Poststructuralist Afro-American Literary Theory" in Essentially Speaking, 73-96.

33. hooks, Yearning, 37.

34. Ibid., 6.

33. hooks, Yearning, 37.

34. Ibid., 6.

35. West, Keeping Faith, 19-27.

36. A dialogue between bell hooks and Cornel West, "Black Women and Men: Partnership in the 1990s," in hooks, Yearning, 213.

37. Michael Eric Dyson, Reflecting Black: African American Cultural Criticism (Minneapolis: University of Minnesota Press, 1993), xvii.

38. West, Keeping Faith, 238.

39. Patricia Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991), II.

40. Ibid., 67.

41. Ibid., 149.

42. Ibid., 234.

39. Patricia Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991), II.

40. Ibid., 67.

41. Ibid., 149.

42. Ibid., 234.

39. Patricia Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991), II.

40. Ibid., 67.

41. Ibid., 149.

42. Ibid., 234.

39. Patricia Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991), II.

40. Ibid., 67.

41. Ibid., 149.

42. Ibid., 234.

43. See Robin West, "Jurisprudence and Gender," in Feminist Jurisprudence, ed. Smith, 495-497.

44. Susan Sherwin, "Philosophical Methodology and Feminist Methodology: Are They Compatible?" in Women, Knowledge and Rationality, ed. Garry and Pearsall, 27.

45. See Judith Grant, Fundamental Feminism: Contesting the Core Concepts of Feminist Theory (New York: Routledge, 1993), 24-31.

46. Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989), 87.

47. Catharine A. MacKinnon, Only Words (Cambridge: Harvard University Press, 1993), 3. break

48. Alarcon[Alarćon], "The Theoretical Subject(s)," 358-359.

49. One of the best critiques of "experience" comes from Joan W. Scott, "Experience," in Feminists Theorize the Political, ed. Butler and Scott, 22-40. See also Teresa de Lauretis, Alice Doesn't (Bloomington: Indiana University Press, 1984), especially chapter 6.

50. Butler, Gender Trouble, 14.

51. Ibid., 15.

50. Butler, Gender Trouble, 14.

51. Ibid., 15.

52. Describing late-modern postindustrial societies, Wendy Brown writes: "The increased fragmentation, if not disintegration, of all forms of association until recently not organized by the commodities market—communities, churches, families—and the ubiquitousness of the classificatory, individuating schemes of disciplinary society combine to produce an utterly unrelieved individual, one without insulation from the inevitable failure entailed by liberalism's individualistic construction. In short, the characteristics of late modern secular society, in which individuals are buffeted and controlled by global configurations of disciplinary and capitalist power of extraordinary proportions, and are at the same time nakedly individuated, stripped of reprieve from relentless exposure and accountability for themselves, together add up to an incitement to ressentiment that might have stunned even the finest philosopher of its occasions and logics." Brown, "Wounded Attachments," 402.

53. See Jürgen Habermas, "Discourse Ethics: Notes on a Program of Philosophical Justification," in Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholsen (Cambridge: MIT Press, 1990), 89.

54. Teresa de Lauretis, "Upping the Anti (Sic) in Feminist Theory," in Conflicts in Feminism, ed. Marianne Hirsch and Evelyn Fox Keller (New York: Routledge, 1990), 266.

55. Donna Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature (New York: Routledge, 1991), 109.

56. Biddy Martin and Chandra Talpade Mohanty, "Feminist Politics: What's Home Got to Do with It?" in Feminist Studies, Critical Studies, ed. Teresa de Lauretis (Bloomington: Indiana University Press, 1986), 192.

57. Ibid., 210.

58. Ibid., 195.

56. Biddy Martin and Chandra Talpade Mohanty, "Feminist Politics: What's Home Got to Do with It?" in Feminist Studies, Critical Studies, ed. Teresa de Lauretis (Bloomington: Indiana University Press, 1986), 192.

57. Ibid., 210.

58. Ibid., 195.

56. Biddy Martin and Chandra Talpade Mohanty, "Feminist Politics: What's Home Got to Do with It?" in Feminist Studies, Critical Studies, ed. Teresa de Lauretis (Bloomington: Indiana University Press, 1986), 192.

57. Ibid., 210.

58. Ibid., 195.

59. Haraway, Simians, Cyborgs, and Women, 123.

60. Phelan, Identity Politics, 170.

61. Martha Minow shows this beautifully in Making All the Difference .

62. Dorothy Allison, Skin: Talking About Sex, Class, and Literature (Ithaca: Firebrand Books, 1994), 24-25.

1. See Chantal Mouffe, "Feminism and Radical Politics," in Feminists Theorize the Political, ed. Butler and Scott, especially 373-377.

2. Jean Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge: MIT Press, 1992). break

3. Carole Pateman, "Feminist Critiques of the Public/Private Dichotomy," in The Disorder of Women (Stanford: Stanford University Press, 1989), 118-140.

4. Claude Lefort, "The Question of Democracy," in Democracy and Political Theory, trans. David Macey (Minneapolis: University of Minnesota Press, 1988), 17.

5. Claude Lefort, "Permanence of the Theologico-Political?" in Democracy and Political Theory, ed. Macey, 226.

6. Lefort, "Permanence of the Theologico-Political," 227; "The Question of Democracy," 18.

7. For example, important discussions have focused both on the notion of a black public sphere and the relevance of the concept of the public sphere to African American political history. This work, although it often draws attention to the position of black women, generally thematizes race and the problem of racial exclusions within the modern conception of the public in a way similar to the feminist focus on gender and sexual difference. See Elsa Barkley Brown, "Negotiating and Transforming the Public Sphere," Public Culture 7, no. 1 (fall 1994), 108-112; and, in the same issue, Michael Dawson, "A Black Counterpublic?" 195-223.

8. Early overviews of feminist theory tended to use the categories of liberal feminist, marxist feminist, socialist feminist, and radical feminist. As the complexity of the debate grew during the early eighties, the categories of black feminism, cultural feminism, lesbian feminism, psychoanalytic feminism, and French feminism were added and then supplemented by various subgroups like black lesbian feminism, S/M lesbian feminism, dual structuralist feminism, and so forth. While these distinctions have been useful in pinpointing the diversity of women's experiences and concerns, they often serve to occlude the formal similarities among the various types of feminist argument. For an interesting account of the way some of the similarities emerged out of radical feminism, see Grant, Fundamental Feminism .

9. As in, for example, the classic texts by Mary Wollstonecraft, Olympe de Gouges, Harriet Taylor and John Stuart Mill, Elizabeth Cady Stanton, and Susan B. Anthony.

10. The effort to secure an Equal Rights Amendment in the United States is a clear example. See also the Bill of Rights of the National Organization of Women. For a defense of the continuing struggle for rights against the Critical Legal Studies critique, see Elizabeth M. Schneider, "The Dialectics of Rights and Politics: Perspectives from the Women's Movement," in At the Boundaries of Law, ed. Fineman and Thomadsen, 301-319. For a thorough account of the successes, failures, and general complexity surrounding women's rights claims, see Deborah L. Rhode, Justice and Gender (Cambridge: Harvard University Press, 1989).

11. See Frances Fox Piven, "Women and the State: Ideology, Power and the Welfare State," and Alice Kessler-Harris, "The Debate over Equality for Women in the Workplace: Recognizing Differences," both in Families and Work, ed. Naromi Gerstel and Harriet Engel Gross (Philadelphia: Temple University Press, 1987).

12. See Lorenne M. G. Clark, "Women and Locke: Who Owns the Apples continue

in the Garden of Eden," in The Sexism of Social and Political Theory, ed. Lorenne M. G. Clark and Lynda Lange (Toronto: University of Toronto Press, 1979), 16-40; Christine Di Stefano, "Masculinity as Ideology in Political Theory: Hobbesian Man Reconsidered," in Hypatia Reborn, ed. Azizah Y. Al-Hibri and Margaret A. Simons (Bloomington: Indiana University Press, 1990), 90-109; Zillah Eisenstein, The Radical Future of Liberal Feminism (New York: Longman Press, 1979); Jean Bethke Elshtain, Public Man, Private Woman (Princeton: Princeton University Press, 1981); Joan B. Landes, Women and the Public Sphere in the Age of the French Revolution (Ithaca: Cornell University Press, 1988); Lynda Lange, "Rousseau on Women," in The Sexism of Social and Political Theory, ed. Clark and Lange, 42-52; Linda Nicholson, Gender and History (New York: Columbia University Press, 1986); Patricia Jagentowitcz Mills, "Hegel and the Woman Question,'' in The Sexism of Social and Political Theory, ed. Clark and Lange, 74-98; and Susan Moller Okin, Women in Western Political Thought (Princeton: Princeton University Press, 1979).

13. See especially Landes's account of the development of a gendered conception of the public sphere as it emerged during the French Revolution. She writes that "while the norms of publicity, authenticity, transparency and universal reason may have affirmed men's participation in the public realm, an emerging code of gender propriety prescribed that women were most in conformity with these norms when their behavior and conduct were least public." Landes, Women and the Public Sphere, 147.

14. Rhode, Justice and Gender, 94, 96.

15. Rhode writes: "Female flight attendants in hot pants and high boots allegedly were necessary to personify Southwest's [Airlines] 'sexy image' and take passengers 'skyward with love.'" Ibid., 94. Naomi Wolf, The Beauty Myth (London: Vintage, 1991), 37-42.

16. See Christine Di Stefano, Configurations of Masculinity: A Feminist Perspective on Modern Political Theory (Ithaca: Cornell University Press, 1991).

17. "The civil sphere gains its universal meaning in opposition to the private sphere of natural subjection and womanly capacities. The 'civil individual' is constituted within the sexual division of social life created through the original contract. The civil individual and the public realm appear universal only in relation to and in opposition to the private sphere, the natural foundation of civil life. Similarly, the meaning of civil liberty and equality, secured and distributed impartially to all 'individuals' through the civil law, can be understood only in opposition to natural subjection (of women) in the private sphere. Liberty and equality appear as universal ideals, rather than as the natural attributes of the men (the brothers) who create the social order within which the ideals are given social expression, only because the civil sphere is conventionally considered on its own. Liberty, equality and fraternity form the revolutionary trilogy because liberty and equality are the attributes of the fraternity who exercise the law of male sex right." Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988), 113-114. See also Pateman's essays in The Disorder of Women .

18. "The unbreachable line between public and private values rests on the tacit assumption that women will continue to preserve and protect personal life, the task to which they have been assigned. In this way the political morality can continue

sustain the fiction of the wholly autonomous individual, whose main concern is a system of rights that protects him from other individuals like himself. The public world is conceived as a place in which direct recognition and care for others' needs is impossible—and that is tolerable as long as the private world 'cooperates.'" Jessica Benjamin, The Bonds of Love (New York: Pantheon, 1988), 197.

19. "Feminism does not begin with the premise that it is unpremised. It does not aspire to persuade an unpremised audience, because there is no such audience. Its project is to uncover and claim as valid the experiences of women, the major content of which is the devalidation of women's experience. This defines the task of feminism not only because male dominance is perhaps the most pervasive and tenacious system of power in history, but because it is metaphysically nearly perfect. Its point of view is the standard for point-of-viewlessness, its particularity the meaning of universality. Its force is exercised as consent, its authority as participation, its supremacy as the paradigm of order, its control as the definition of legitimacy. In the face of this, feminism claims the voice of women's silence, the fullness of 'lack,' the centrality of women's marginality and exclusion, the public nature of privacy, the presence of women's absence." Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989), 117.

20. Habermas, "Nachholende Revolution und linker Revisionsbedarf," 232. (My translation.)

21. Young, Justice and the Politics of Difference, 110-111.

22. Habermas, "Discourse Ethics," 66.

23. Klaus Günther, "Universalistische Normbegründung und Normanwendung in Recht und Moral," in Generalisierung und Individualisierung im Rechtsdenken, ed. M. Herberger, U. Neumann, and H. Russmann (Stuttgart: Franz Steiner Verlag, 1992), 6-7. Habermas, "Discourse Ethics," 83-85.

24. Benhabib, "The Generalized and the Concrete Other," 81.

25. Jürgen Habermas, "Morality, Society and Ethics," Acta Sociologica 33 (1990), 96-97.

26. See Klaus Günther, Der Sinn für Angemessenheit: Anwendungsdiskurse in Moral und Recht (Frankfurt: Suhrkamp Verlag, 1988).

27. See Günther, "Universalistische Normbegründung und Normanwendung."

28. See Susan Moller Okin's discussion of the breakdown of a clear distinction between the domestic and public spheres in Justice, Gender and the Family (New York: Basic Books, 1989), 128-133. See also Donna Haraway's rejection of the public/private distinction and her notion of the "integrated circuit," in Simians, Cyborgs, and Women, 170 ff.

29. "It has been common forever to speak of the public functions of the family in producing and socializing the 'next generation.' Using this and other rationales the state attempts to determine the content of and then enforce the performance of familial roles, both of parents and children. Modern statutory schemes authorize social welfare agencies backed by the courts to intervene on no more precise grounds than 'the best interests of the child' or the child's 'need for supervision.'" Duncan Kennedy, "The Stages of the Decline of the Public/Private Distinction," University of Pennsylvania Law Review 139 (1982), 1356. See continue

also Frances Olsen, "The Family and the Market: A Study of Ideology and Social Reform," Harvard Law Review 96, no. 7 (May 1983), 1497-1578.

30. See Carol B. Stack's discussion of the complexities of household composition in a poor section of an American Midwestern community, "Sex Roles and Survival Strategies in an Urban Black Family," in Woman, Culture and Society, eds. Michelle Zimbalist Rosaldo and Louise Lamphere (Stanford: Stanford University Press, 1974), 113-128. Additionally, Frances Olsen's "The Myth of State Intervention in the Family" reveals some of the ways in which the designation of a group as a family tends to empower some members at the expense of others. In Journal of Law Reform 18, no. 4 (summer 1985), 835-864.

31. Fraser, "Rethinking the Public Sphere," 109-142.

32. For example, see Elshtain, Public Man, Private Woman; and Annette C. Baier, "What Do Women Want in a Moral Theory?" Nous 19, no. 1, 53-63.

33. Jürgen Habermas, "Three Normative Models of Democracy" Constellations 1, no. 1 (April 1994.), 1.

34. Cohen and Arato, Civil Society and Political Theory, 346.

35. In their critique of Foucault (and Luhmann), Cohen and Arato refer to the following concepts as the "key categories" of civil society: the juridical subject; the autonomous, self-reflective moral individual; normativity; legality; publicity; democratic control; and plurality. Jean Cohen and Andrew Arato, "Politics and the Reconstruction of the Concept of Civil Society," in Zwischenbetrachtungen Im Prozess der Aufklärung, ed. Axel Honneth, Thomas McCarthy, Claus Offe, and Albrecht Wellmer (Frankfurt: Surhkamp Verlag, 1989), 490. I will not address legality and normativity per se insofar as these concepts are intertwined with the notions of the juridical subject and the autonomous, self-reflective moral individual.

36. My alternative to the public/private distinction thus differs from Chantal Mouffe's. Although I agree with her that "every situation is an encounter between 'private' and 'public' " I disagree with her claim that "wants, choices, and decisions are private" while "performances" are public. As I see it, wants, choices, and decisions have a public dimension in that they are constructed interrelationally and always situated in cultural representations, discourses, and matrixes of power. In other words, we can be called upon to defend and justify our choices and decisions and we are often accountable for the ways in which wants and decisions are constructed and imputed. See Mouffe, "Feminism and Radical Politics," 378.

37. Cohen and Arato conceive of five complexes of rights: those concerning cultural reproduction (freedoms of thought, press, speech, communication); those insuring social integration (freedoms of association, assembly); those securing socialization (protection of privacy, intimacy, inviolability of the person); those mediating between civil society and the capitalist economy (rights of property, contract, labor); and those mediating between civil society and the modern bureaucratic state (electoral rights of citizens, welfare rights of clients). See Cohen and Arato, "Politics and the Reconstruction of the Concept of Civil Society," 441. While a number of these rights would clearly fall under the general category of discursive rights (inviolability of the person, freedom of thought and speech, freedom of association), others would lose their fundamental character and become just one consideration among others within a dilemma or dispute. break

38. Rhode, Justice and Gender, 3.

39. Cohen and Arato, "Politics and the Reconstruction of the Concept of Civil Society," 490.

40. Dyson, Reflecting Black, xxiii.

41. As Cohen and Arato argue: "Both the complexity of and the diversity within contemporary civil societies call for the posing of the issue of democratization in terms of a variety of differential processes, forms, and loci depending on the axis of division considered," Cohen and Arato, "Politics and the Reconstruction of the Concept of Civil Society," 415.

42. Ibid., 417.

41. As Cohen and Arato argue: "Both the complexity of and the diversity within contemporary civil societies call for the posing of the issue of democratization in terms of a variety of differential processes, forms, and loci depending on the axis of division considered," Cohen and Arato, "Politics and the Reconstruction of the Concept of Civil Society," 415.

42. Ibid., 417.

1. Lefort, "The Question of Democracy," 19.

2. Habermas, Faktizität und Geltung, 78. I am indebted to William Rehg for making available to me his translation of this text. Unless otherwise noted, all translations are his.

3. Ibid., 141.

4. Ibid., 144.

2. Habermas, Faktizität und Geltung, 78. I am indebted to William Rehg for making available to me his translation of this text. Unless otherwise noted, all translations are his.

3. Ibid., 141.

4. Ibid., 144.

2. Habermas, Faktizität und Geltung, 78. I am indebted to William Rehg for making available to me his translation of this text. Unless otherwise noted, all translations are his.

3. Ibid., 141.

4. Ibid., 144.

5. See Minow, Making All the Difference, 292-303.

6. Habermas, Faktizität und Geltung, 68.

7. Claude Lefort, "Human Rights and the Welfare State," in Democracy and Political Theory, trans. Macey, 39.

8. See Margaret Jane Radin and Frank Michelman, "Pragmatist and Poststructuralist Critical Legal Practice, University of Pennsylvania Law Review 139, no. 4 (1982), 1024-1027; Habermas, Faktizität und Geltung, 247-248; and Drucilla Cornell, The Philosophy of the Limit (New York: Routledge, 1992). Cornell writes: "Legal positivism argues that legal systems are self-enclosed hierarchies that generate their own elements and procedures as part of the mechanism of the self-perpetuation of the system. In Anglo-American jurisprudence, legal positivism has traditionally been based on the writing of H. L. A. Hart. Hart proposed that all legal systems are based on the master rule of recognition, which establishes the initial hierarchies of the elements of the legal system. From out of this master rule of recognition, Hart argued that it would be possible to directly derive two categories of secondary rules: the rules of process by which the law is applied, and then the rules of prescription we think of as doctrine in a common law system" (101).

9. Minow, Making All the Difference, 164. For an overview of the Critical Legal Studies (CLS) movement, see Mark Kelman, A Guide to Critical Legal Studies (Cambridge: Harvard University Press, 1987). For a collection of CLS writings that includes a number of seminal works from Duncan Kennedy, Clare Dalton, Frances Olsen, Peter Gabel, and Mark Tushnet, see Allan C. Hutchinson, ed., Critical Legal Studies (Totowa, N.J.: Rowman and Littlefield Publishers, 1989).

10. Radin and Michelman, "Pragmatist and Poststructuralist Critical Legal Practice," 1036. For an analysis which condenses the various versions of the in- soft

determinacy thesis in CLS circles into three main variants ("the unruly social-political world," "the unruly legal practice," and "the unruly rule of law"), see Günter Frankenberg, "Down by Law: Irony, Seriousness, and Reason," Northwestern University Law Review 83, nos. 1-2 (fall-winter 1988), 391-393.

11. Cornell, The Philosophy of the Limit, 101.

12. Drucilla Cornell, Transformations (New York: Routledge, 1993), 25.

13. For a discussion of the process of application in communications-theoretic terms (application discourses), see Günther, Der Sinn für Angemessenheit, and "Universalistische Normbegründung und Normanwendung.

14. Frank Michelman, "Law's Republic," Yale Law Journal 97 (1988), 1513-1514 (citations omitted).

15. Ibid., 1529.

14. Frank Michelman, "Law's Republic," Yale Law Journal 97 (1988), 1513-1514 (citations omitted).

15. Ibid., 1529.

16. See Günther, "Universalistische Normbegründung und Normanwendung," 28-31. Similarly, Duncan Kennedy writes: "It is impossible to think about the legal system without some categorical scheme. We simply cannot grasp the infinite multiplicity of particular instances without abstractions. Further, the edifice of categories is a social construction, carried on over centuries, which makes it possible to know much more than we could know if we had to reinvent our abstractions in each generation. It is therefore a priceless acquisition. On the other hand, all such schemes are lies. They cabin and distort our immediate experience, and they do so systematically rather than randomly." Duncan Kennedy, "The Structure of Blackstone's Commentaries," in Critical Legal Studies, ed. Hutchinson, 142.

17. Bowers v Hardwick, 478 US 186 (1986) (upholding Georgia sodomy law). Among others see, Richard D. Mohr, Gays/Justice: A Study of Ethics, Society, and Law (New York: Columbia University Press, 1988); Phelan, Identity Politics; and Vincent J. Samar, The Right to Privacy: Gays, Lesbians, and the Constitution (Philadelphia: Temple University Press, 1991).

18. For a good example of a strategic use of the division aimed at reformulating privacy see Elizabeth M. Schneider, "The Violence of Privacy," Connecticut Law Review 23 (1991), 973-999.

19. Much of the success in this area can be attributed to the work of Catharine MacKinnon. See her Feminism Unmodified (Cambridge: Harvard University Press, 1987), 103-116; and Sexual Harassment of Working Women (New Haven: Yale University Press, 1979).

20. Meritor Savings Bank, FSB v Vinson, 477 US 57 (1986) (holding that "hostile environment" harassment is a form of sex discrimination in violation of Title VII).

21. Meritor, at 65 and 67 (quoting Henson v Dundee, 682 F2d 897, 904 [11th Cir 1982]). A number of feminist commentators have pointed out the similarity between the consent standard in rape law and the unwelcome requirement in sexual harassment law. For critical discussions of the unwelcome requirement, see Martha Chamallas, "Consent, Equality, and the Legal Control of Sexual Conduct," Southern California Law Review 61 (1988), 777-862; Susan Estrich, "Sex at Work," Stanford Law Review 43, no. 4 (1991), 813-861; and "Note: Did She Ask for It?: The 'Unwelcome' Requirement in Sexual Harassment Cases," Cornell Law Review 77 (1992), 1558-1592. break

22. See Lucinda M. Finley, "A Break in the Silence: Including Women's Issues in a Torts Course," Yale Journal of Law and Feminism 1 (1989), 41--3.

23. Rabidue v Osceola Refining Co., 805 F2d 611 (6th Cir 1986), cert. denied, 481 US 1041 (1987), at 627 (Keith, J., dissenting).

24. Rabidue, at 624 (Keith, J., dissenting).

25. Ellison v Brady, 924 F2d 872 (9th Cir 1991).

26. Ellison, at 878-880.

27. Eileen M. Blackwood, "The Reasonable Woman in Sexual Harassment Law and the Case for Subjectivity," Vermont Law Review 16 (1992), 1021. See also Deborah S. Brenneman, "From a Reasonable Woman's Point of View: The Use of the Reasonable Woman Standard in Sexual Harassment Cases," Cincinnati Law Review 60 (1992), 1281-1306.

28. Estrich, "Sex at Work," 846; and Kathryn Abrams, "Gender Discrimination and the Transformation of Workplace Norms," Vanderbilt Law Review 42 (1989), 1202.

29. Naomi R. Cahn, "The Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice," Cornell Law Review 77 (1992), 1416.

30. See Blackwood, "The Reasonable Woman," 1023; Cahn, "The Looseness of Legal Language," 1403.

31. Finley, "A Break in the Silence," 64; Cahn, "The Looseness of Legal Language," 1416.

32. Blackwood, "The Reasonable Woman," 1005.

33. Nancy S. Ehrenreich, "Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law," Yale Law Journal 99, no. 6 (1990), 1178. As she makes this argument, Ehrenreich is following Duncan Kennedy's method in "The Structure of Blackstone's Commentaries."

34. Ibid., 1188-1189.

35. Ibid., 1191.

36. Ibid., 1198.

37. Ibid.

38. Ibid., 1206.

33. Nancy S. Ehrenreich, "Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law," Yale Law Journal 99, no. 6 (1990), 1178. As she makes this argument, Ehrenreich is following Duncan Kennedy's method in "The Structure of Blackstone's Commentaries."

34. Ibid., 1188-1189.

35. Ibid., 1191.

36. Ibid., 1198.

37. Ibid.

38. Ibid., 1206.

33. Nancy S. Ehrenreich, "Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law," Yale Law Journal 99, no. 6 (1990), 1178. As she makes this argument, Ehrenreich is following Duncan Kennedy's method in "The Structure of Blackstone's Commentaries."

34. Ibid., 1188-1189.

35. Ibid., 1191.

36. Ibid., 1198.

37. Ibid.

38. Ibid., 1206.

33. Nancy S. Ehrenreich, "Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law," Yale Law Journal 99, no. 6 (1990), 1178. As she makes this argument, Ehrenreich is following Duncan Kennedy's method in "The Structure of Blackstone's Commentaries."

34. Ibid., 1188-1189.

35. Ibid., 1191.

36. Ibid., 1198.

37. Ibid.

38. Ibid., 1206.

33. Nancy S. Ehrenreich, "Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law," Yale Law Journal 99, no. 6 (1990), 1178. As she makes this argument, Ehrenreich is following Duncan Kennedy's method in "The Structure of Blackstone's Commentaries."

34. Ibid., 1188-1189.

35. Ibid., 1191.

36. Ibid., 1198.

37. Ibid.

38. Ibid., 1206.

33. Nancy S. Ehrenreich, "Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law," Yale Law Journal 99, no. 6 (1990), 1178. As she makes this argument, Ehrenreich is following Duncan Kennedy's method in "The Structure of Blackstone's Commentaries."

34. Ibid., 1188-1189.

35. Ibid., 1191.

36. Ibid., 1198.

37. Ibid.

38. Ibid., 1206.

39. Rabidue, (Keith, J., dissenting) at 624.

40. Ehrenreich, "Pluralist Myths," 1223.

41. Ibid., 1224.

40. Ehrenreich, "Pluralist Myths," 1223.

41. Ibid., 1224.

42. I am indebted to Karen Engle for pointing out the potentially radical character of Ehrenreich's formulation.

43. To be sure, the understanding that sex is at the basis of sexual harassment has tended to have been overlooked in the focus on "welcomeness" ( Meritor ) and the reasonableness of the victim's claims ( Rabidue, Ellison ). Nonetheless, I contend that it is precisely the element of sex that operates underneath decisions in sexual harassment cases and that must be brought to the fore.

44. Ehrenreich, "Pluralist Myths," 1210.

45. Rabidue, at 623.

46. Rabidue, at 623.

47. Rabidue, at 624 (Keith, J., dissenting).

48. Rabidue, at 624 (Keith, J., dissenting).

49. Ellison, at 873. break

50. Ellison, at 879.

51. Ellison, at 880.

52. Theresa Harris v Forklift Systems, Inc., 1993 WL 453611 (US) (holding that to be actionable as "abusive work environment harassment" conduct need not seriously affect an employee's psychological well-being or lead the plaintiff to suffer injury).

53. Harris, at 2.

54. Indeed, in his concurring opinion Justice Scalia writes: "'Abusive' (or 'hostile,' which in this context I take to mean the same thing) does not seem to me a very clear standard—and I do not think clarity is at all increased by adding the adverb 'objectively' or by appealing to a 'reasonable person's' notion of what the vague word means. Today's opinion does list a number of factors that contribute to abusiveness . . . but since it neither says how much of each is necessary (an impossible task) nor identifies any single factor as determinative, it thereby adds little certitude. As a practical matter, today's holding lets virtually unguided juries decide whether sex-related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages." Harris, at 5.

55. Harris, at 3.

56. Ehrenreich, "Pluralist Myths," 1205.

57. Griswold v Connecticut, 381 US 479 (1965) (holding that Connecticut birth-control law violates right of marital privacy).

58. The Lochner era was characterized by the active intervention of the judiciary. Courts in this period used the Due Process clause to strike down economic regulation. For an overview, see Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Cambridge: Harvard University Press, 1990), 11-46.

59. Eisenstadt v Baird, 405 US 438 (1972) (striking down Massachusetts law prohibiting the transfer of contraceptives to single persons).

60. Roe v Wade, 410 US 113 (1973) (allowing for abortion).

61. See Ruth Colker, Abortion and Dialogue (Bloomington: Indiana University Press, 1992); Norman Viera, " Hardwick and the Right of Privacy," The University of Chicago Law Review 55 (1988), 1181-1191; Rosalind Pollack Petchesky, Abortion and Woman's Choice (Boston: Northeastern University Press, 1990); Reva Siegel, "Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection," Stanford Law Review 44 (January 1992), 261-381; and Kendall Thomas, "Beyond the Privacy Principle" Columbia Law Review 92 (1992), 1431-1516.

62. See Jean L. Cohen, "Redescribing Privacy: Identity, Difference, and the Abortion Controversy," Columbia Journal of Gender and Law 3, no. 1 (1992), 43-117; Rhonda Copelon, "Losing the Negative Right of Privacy: Building Sexual and Reproductive Freedom," Review of Law and Social Change 18 (1990-91), 15-50; Morris B. Kaplan, "Autonomy, Equality, Community: The Question of Lesbian and Gay Rights," Praxis International II, no. 2 (July 1991), 195-213; Michelman, "Laws Republic"; and Jeb Rubenfeld, "The Right of Privacy,'' Harvard Law Review 102, no. 4 (February 1989), 737-807.

63. Copelon, "Losing the Negative Right of Privacy," 41.

64. Ibid., 45 (emphasis added). break

63. Copelon, "Losing the Negative Right of Privacy," 41.

64. Ibid., 45 (emphasis added). break

65. Faye D. Ginsburg, Contested Lives: The Abortion Debate in an American Community (Berkeley: University of California Press, 1989); and Kristin Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1984).

66. Ginsburg, Contested Lives, 110.

67. For an interesting discussion of the variety of conceptions of identity in discrimination law, see Dan Danielson, "Representing Identities: Legal Treatment of Pregnancy and Homosexuality," New England Law Review 26 (summer 1992), 1453-1508.

68. Bowers, at 2843.

69. As Nan Hunter points out, "Opponents of the rights claim [of lesbians and gay men] have focused on the volitional nature of sexual conduct." See Nan Hunter, "Life after Hardwick, " Harvard Civil Rights-Civil Liberties Law Review 27 (1992), 549 (citations omitted).

70. Bowers, at 2847 (Blackmun, J., dissenting).

71. Bowers, at 2852 (Blackmun, J., dissenting) (citation omitted).

72. See also the brief amicus curiae for Lesbian Rights Project et al. in support of Michael Hardwick. It provides a privacy argument constructed in terms of choice and sameness. Review of Law and Social Change 14 (1986), 953-972.

73. See Thomas, "Beyond the Privacy Principle," 1443-1448. In addition to the relational and decisional models of privacy, Thomas provides an overview of the zonal conception of privacy. This third model, which lies beyond the scope of my discussion, can be summed up by the phrase, "a man's home is his castle." In other words, here privacy protects particular spaces from government intrusion.

74. Karen Engle makes a similar point with regard to the power of the private in international law in "After the Collapse of the Public/Private Distinction: Strategizing Women's Rights," in Reconceiving Reality: Woman and International Law, ed. Dorinda G. Dallmeyer (Washington, D.C.: American Society of International Law, 1993), 149-150.

75. As Jeb Rubenfeld argues, "Underlying the idea that a woman is defining her identity by determining not to have a child is the very premise of those institutionalized sexual roles through which the subordination of women has so long been maintained." Rubenfeld, "The Right of Privacy," 782.

76. Ibid.

75. As Jeb Rubenfeld argues, "Underlying the idea that a woman is defining her identity by determining not to have a child is the very premise of those institutionalized sexual roles through which the subordination of women has so long been maintained." Rubenfeld, "The Right of Privacy," 782.

76. Ibid.

77. Planned Parenthood of Southeastern Pennsylvania v Robert P. Casey, 112 Sup. Ct. 2791 (1992).

78. Halley, "The Construction of Heterosexuality," 90.

79. As Cindy Patton writes: "Homosexuals' attempts to gain protection to practice sex as private have produced a legal paradox: to insert privacy in the already accepted package of civil rights (to political participation, equal access, protection from discrimination) requires establishing lesbians and gay men as a publicly inscribed class. In the most immediate sense, a gay person must 'come out' in order to get the right to privacy." Patton, "Tremble, Hetero Swine," 170.

80. Thomas, "Beyond the Privacy Principle," 1455.

81. See Michelman, "Law's Republic," 1534-1535.

82. Cohen, "Redescribing Privacy," 59.

83. Ibid., 113, note 212. break

82. Cohen, "Redescribing Privacy," 59.

83. Ibid., 113, note 212. break

84. Kenneth Karst, "Forward: Equal Citizenship under the Fourteenth Amendment," Harvard Law Review 91, no. 1 (November 1977), 32.

85. Ibid.

84. Kenneth Karst, "Forward: Equal Citizenship under the Fourteenth Amendment," Harvard Law Review 91, no. 1 (November 1977), 32.

85. Ibid.

86. As Jean Cohen points out, "The personal dynamics of shifting involvements among separate spheres, roles, and commitments required by life in a highly differentiated modern society create the need and the possibility for each individual to develop a strong sense of self, along with the ability to form, affirm, and express her unique identity as it develops and changes over time in an open multiplicity of contexts." Cohen, "Redescribing Privacy," 99.

87. Ibid., 48.

86. As Jean Cohen points out, "The personal dynamics of shifting involvements among separate spheres, roles, and commitments required by life in a highly differentiated modern society create the need and the possibility for each individual to develop a strong sense of self, along with the ability to form, affirm, and express her unique identity as it develops and changes over time in an open multiplicity of contexts." Cohen, "Redescribing Privacy," 99.

87. Ibid., 48.

88. Williams, The Alchemy of Race and Rights, 146-165.

89. Morris Kaplan, "Intimacy and Equality: The Question of Lesbian and Gay Marriage," Philosophical Forum 25, no. 4 (summer 1994), 354.

90. Cohen, "Redescribing Privacy," 116.

91. Ibid., 112.

90. Cohen, "Redescribing Privacy," 116.

91. Ibid., 112.

92. Michelman makes a similar point: "Just as property rights—rights of having and holding material resources—become, in a republican perspective, a matter of constitutive political concern as underpinning the independence and authenticity of the citizen's contribution to the collective determinations of public life, so is it with the privacies of personal refuge and intimacy." Michelman, "Law's Republic," 1535.

93. See Habermas, "Three Normative Models of Democracy." Habermas writes: "Discourse theory altogether jettisons certain premises of the philosophy of consciousness . These premises either invite us to ascribe the praxis of civic self-determination to one encompassing macro-subject or they have us apply the rule of law to many isolated private subjects. The former approach views the citizenry as a collective actor that reflects the whole and acts for it; in the latter, individual actors function as dependent variables in system processes that move along blindly. Discourse theory works instead with the higher-level intersubjectivity of communication processes that flow through both the parliamentary bodies and the informal networks of the public sphere" (13).

94. Cohen, "Redescribing Privacy," 100.

95. Ibid., 102-103, note 169.

94. Cohen, "Redescribing Privacy," 100.

95. Ibid., 102-103, note 169.

96. See Mary Joe Frug, Postmodern Legal Feminism (New York: Routledge, 1992), 123.

97. Habermas, Faktizität und Geltung, 152-154.

98. Michelman, "Law's Republic," 1529.

99. Ibid., 1529.

98. Michelman, "Law's Republic," 1529.

99. Ibid., 1529.

1. Trinh, Framer Framed, 185.

2. Ibid.

1. Trinh, Framer Framed, 185.

2. Ibid.

3. See Seyla Benhabib, "The Generalized and the Concrete Other," Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (New York: Routledge, 1992), 148-177; Jessica Benjamin, The Bonds of Love (New York: Pantheon Books, 1988); Clark, "Women and Locke," 16-40; Di Stefano, "Mas- soft

culinity as Ideology in Political Theory," 90-109; Eisenstein, The Radical Future of Liberal Feminism; Elshtain, Public Man, Private Woman; Alison Jaggar, Feminist Politics and Human Nature (Totowa, N.J.: Rowman and Allenheld, 1983); Lange, "Rousseau on Women," 42-52; Genevieve Lloyd, "The Man of Reason," in Women, Knowledge and Reality, ed. Garry and Pearsall, 111-128; Nicholson, Gender and History; MacKinnon, Toward a Feminist Theory of the State; Okin, Women in Western Political Theory; Pateman, The Disorder of Women, and " 'God Hath Ordained to Man a Helper': Hobbes, Patriarchy and Conjugal Right," in Feminist Interpretations and Political Theory, ed. Mary Lyndon Shanley and Carole Pateman (University Park, Penn.: University of Pennsylvania Press, 1991), 53-73; and Iris Marion Young, "Impartiality and the Civic Public,'' in Feminism as Critique, ed. Benhabib and Cornell, 56-76.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

4. Butler, "Contingent Foundations," 7.

5. Ibid.

6. Ibid., 6.

7. Ibid., 7.

8. Ibid., 7.

9. Ibid., 8.

10. Ibid., 12.

11. Ibid., 9-10.

12. Ibid., 10.

13. Ibid., 11.

14. Ibid., 13.

15. See Fraser's "False Antithesis," 173.

16. See Habermas, The Theory of communicative Action, vol. 1, 2: "All attempts at discovering ultimate foundations, in which the intentions of First Philosophy live one, have broken down."

17. Jürgen Habermas, "Philosophy as Stand-in and Interpreter," and "Reconstruction and Interpretation in the Social Sciences," in Moral Consciousness and Communicative Action, trans. Lenhardt and Nicholsen; and Jürgen Habermas, "Erläuterungen zur Diskursethik," in Erläuterungen zur Diskursethik (Frankfurt: Suhrkamp Verlag, 1991), 190-196. See also Seyla Benhabib, Critique, Norm, and Utopia (New York: Columbia University Press, 1986), 280-282; and Stephen White, The Recent Work of Jürgen Habermas (Cambridge: Cambridge University Press, 1988), 128-136.

18. bell hooks, Talking Back: Thinking Feminist, Thinking Black (Boston: South End Press, 1989), 31.

19. Ibid., 42-43.

18. bell hooks, Talking Back: Thinking Feminist, Thinking Black (Boston: South End Press, 1989), 31.

19. Ibid., 42-43.

20. Butler, "Contingent Foundations," 8-9.

21. Quoted by Patricia Williams in "Lani, We Hardly Knew Ye: How the Right Created a Monster out of a Civil Rights Advocate and Bill Clinton Ran in Terror," The Village Voice 38, no. 24 (15 June 1993), 27.

22. Ibid.

21. Quoted by Patricia Williams in "Lani, We Hardly Knew Ye: How the Right Created a Monster out of a Civil Rights Advocate and Bill Clinton Ran in Terror," The Village Voice 38, no. 24 (15 June 1993), 27.

22. Ibid.

23. See Jürgen Habermas's discussion of Nietzsche, Horkheimer, and Adorno in "The Entwinement of Myth and Enlightenment: Re-Reading Dialectic of Enlightenment, " trans. Thomas Y. Levin, New German Critique 26 (spring-summer 1982), 13-30.

24. Habermas, "Discourse Ethics," 66. break

25. Habermas, The Theory of Communicative Action, vol. 1, 19.

26. Habermas, "Discourse Ethics," 89.

27. Jürgen Habermas, "Moralbeswusstsein und kommunikatives Handeln," in Moralbewusstsein und kommunikatives Handeln (Frankfurt: Suhrkamp Verlag, 1983), 131. (My translation. The English version mistakenly refers to the particular interests of each. See "Moral Consciousness and Communicative Action," in Moral Consciousness and Communicative Action, trans. Lenhardt and Nicholsen, 120.)

28. Habermas, "Discourse Ethics," 65.

29. See Günther, "Universalistische Normbegründung und Normanwendung," 6-7; and Habermas, "Discourse Ethics," 66-68.

Habermas justifies the universalization principle with two arguments. First, he grounds it on the presuppositions of argumentation through a "transcendental-pragmatic derivation." Insofar as participants in discourse have to observe the roles outlined above, they implicitly acknowledge the universalization principle. If they do not observe these rules, they permit a "pefformative contradiction." For example, if I try to claim that certain people should not be allowed to express their views in a discussion regarding the validity of a norm that applies to them, I would first have to convince them that they should be excluded. Yet by including them in this discussion, I am already contradicting my previous intention to exclude them. But why, one might ask, do I enter into argumentation at all? Couldn't I simply refrain from talking about norms and go on excluding whomever I please? The answer to this question provides the second justification of the universalization principle. Habermas argues that once we understand argumentation as a reflective, more demanding type of communication, we see that, as members of ethical communities, we have no choice but to enter into practical discourse. Simply put, we are deeply intermeshed within relationships and societies. Our identities, in fact, are dependent upon them. Our personalities, cultures, and societies reproduce and integrate themselves through the communicative interaction of members. Daily we take "yes" or ''no" positions on criticizable claims to validity. So, our choice is either argumentation or the termination of our "membership in the community of beings who argue—no more and no less." Habermas reminds us that choosing the latter is only possible if we are ready to flee into suicide or serious mental illness. See Habermas, "Discourse Ethics," 93, 100.

30. Jürgen Habermas, Postmetaphysical Thinking, trans. William Mark Hohengarten (Cambridge: MIT Press, 1992), 35-6.

31. Habermas, "Philosophy as Stand-in and Interpreter," 14.

32. "Starting primarily from the intuitive knowledge of competent subjects—competent in terms of judgment, action, and language—and secondarily from systematic knowledge handed down by culture, the reconstructive sciences explain the presumably universal bases of rational experience and judgment, as well as of action and linguistic communication. . . . Fallibilistic in orientation, they reject the dubious faith in philosophy's ability to do things single-handedly, hoping instead that the success that has for so long eluded it might come from an auspicious matching of different theoretical fragments." Ibid., 15-16.

33. As Habermas explains: "To be sure, the intuitive knowledge of rules that subjects capable of speech and action must use if they are to be able to partici- soft

pate in argumentation is in a certain sense not fallible. But this is not true of our reconstruction of this pretheoretical knowledge and the claim to universality that we connect with it. The certainty with which we put our knowledge of rules into practice does not extend to the truth of proposed reconstructions of presuppositions hypothesized to be general, for we have to put our reconstructions up for discussion in the same way in which the logician or the linguist, for example, presents his theoretical descriptions." Habermas, "Discourse Ethics," 97.

34. Thus, I am puzzled by Shane Phelan's claim that Habermas "has not been able to subvert the charge that his claims are particular to a certain, modern Western, world." Habermas has not been able to subvert this charge because he accepts it. But it does not undercut the ideal of open, uncoerced communication. Nor does it suggest a "retreat" to rationalism as much as a renewed understanding of rationality in communicative terms. Moreover, Habermas meets Phelan's own criteria for serious consideration. She writes: ''Those who have been ignored or degraded within the Western tradition may justly retain their skepticism toward those theorists . . . who do not specifically address the question of their inclusion." Habermas has written explicitly about the struggle for inclusion of women, homosexuals, people of color, and the colonized. See Phelan, Identity Politics, 148; and Jürgen Habermas, "Anerkennungskämpfe im demokratischen Rechsstaat," in Multikulturalismus und die Politik der Anerkennung, trans. Reinhard Kaiser (Frankfurt: S. Fischer Verlag, 1993), 147-196.

35. Thomas McCarthy, "Practical Discourse: On the Relation of Morality to Politics," in Habermas and the Public Sphere, ed. Calhoun, 55.

36. Seyla Benhabib, "In the Shadow of Aristotle and Hegel," in Situating the Self, 37.

37. Chantal Mouffe, "Democratic Politics Today," in Dimensions of Radical Democracy, ed. Mouffe, 13. Mouffe also mistakenly claims that Habermasian universalism is grounded on a stagist conception of moral development. As my account of rational reconstruction attests, however, developmental moral theories such as Kohlberg's do not ground discourse ethics; they provide independent corroboration and are themselves open for revision and critique.

38. Habermas, "Discourse Ethics," 66.

39. Jürgen Habermas, "Diskursethik—Notizen zu einem Begründungs programm," in Moralbewusstsein und kommunikatives Handlen, 113. (My translation.) See "Discourse Ethics," 103.

40. Jürgen Habermas, "Lawrence Kohlberg und der Neoaristotelismus," in Erläuterungen zur Diskursethik (Frankfurt: Suhrkamp Verlag, 1991), 97; and Habermas, "Individuierung durch Vergesellschaftung," in Nachmetaphysisches Denken (Frankfurt: Surhkamp Verlag, 1988), 191.

41. See Lutz Wingert, "Haben wir moralische Verpflichtungen gegenüber früheren Generationen? Moralischer Universalismus und erinnernde Solidarität," Babylon 9 (November 1991), 78-3.

42. Habermas, "Justice and Solidarity," 70.

43. Jürgen Habermas, "Morality and Ethical Life," in Moral Consciousness and Communicative Action, trans. Lenhardt and Nicholsen, 213; and "Justice and Solidarity," 45-47.

44. Habermas, "Justice and Solidarity," 47. break

45. Habermas, "Morality and Ethical Life," 202.

46. Jürgen Habermas, The Theory of Communicative Action, vol. 2, Lifeworld and System: The Critique of Functionalist Reason, trans. Thomas McCarthy (Boston: Beacon Press, 1987), 93.

47. Ibid., 142-143.

46. Jürgen Habermas, The Theory of Communicative Action, vol. 2, Lifeworld and System: The Critique of Functionalist Reason, trans. Thomas McCarthy (Boston: Beacon Press, 1987), 93.

47. Ibid., 142-143.

48. "The processes of reaching understanding upon which the lifeworld is centered require a cultural tradition across the whole spectrum. In the communicative practice of everyday life, cognitive interpretations, moral expectations, expressions, and valuations have to interpenetrate and form a rational intercon- nectedness via the transfer of validity that is possible in the performative attitude," Ibid., 327.

49. Benhabib, "In the Shadow of Aristotle and Hegel," 37.

50. See Jürgen Habermas, "Volkssouveräität als Verfahren," in Die Moderne—ein unvollendetes Projekt (Leipzig: Reclam Verlag, 1990), 206.

51. Habermas, "Justice and Solidarity," 48.

52. Habermas, Postmetaphysical Thinking, 117.

53. Ibid., 143.

54. Ibid., 140.

52. Habermas, Postmetaphysical Thinking, 117.

53. Ibid., 143.

54. Ibid., 140.

52. Habermas, Postmetaphysical Thinking, 117.

53. Ibid., 143.

54. Ibid., 140.

55. As Habermas writes: "The transitory unity that is generated in the porous and refracted intersubjectivity of a linguistically mediated consensus not only supports but further accelerates the pluralization of forms of life and the individualization of lifestyles." Ibid., 140.

56. Benhabib, "The Generalized and the Concrete Other," note 12, 177, and "Models of Public Space," in Situating the Self, 89-93; Cohen and Arato, Civil Society and Political Theory, 688, note 27. Nancy Fraser has also accused Habermas of repeating the division between the public and private spheres in his system/lifewodd distinction; Fraser, "What's Critical about Critical Theory?" in Feminism as Critique, ed. Benhabib and Cornell, 31-55. (For a thorough critique of this and other aspects of her argument, see Cohen and Arato, Civil Society and Political Theory, 532-548.) What I find strange about all of these arguments is that Habermas never claims to abandon a split between the public and private spheres. This distinction plays a role in his work from The Structural Transformation of the Public Sphere through The Theory of Communicative Action . Given that he already accepts this distinction, he has no need or reason to introduce it "covertly'' via other sets of oppositions.

57. Benhabib, "Models of Public Space," 90-92.

58. Jiirgen Habermas, "Vom pragmatischen, ethischen und moralischen Gebrauch der praktischen Vernunft," in Erläuterungen zur Diskursethik, 111-112.

59. See Jürgen Habermas, Autonomy and Solidarity: Interviews, ed. Peter Dews (London: Verso, 1986), 170.

60. Habermas, Theory of Communicative Action, vol. 2, 100.

61. Ibid., 35.

60. Habermas, Theory of Communicative Action, vol. 2, 100.

61. Ibid., 35.

62. David Wiggins, "Universalizability, Impartiality, Truth," in Needs, Values, Truth (Oxford: Basil Blackwell, 1987), 82. See also Habermas, "Lawrence Kohlberg und der Neoaristotelismus," 95-96; and Günther, "Universalistische Normbegründung und Normanwendung," 8-9.

63. Habermas, "Erläuterungen zur Diskursethik," 143. break

64. For an enlightening and entertaining discussion of the illusory neutrality of the word "man," see Janice Moulton, "The Myth of the Neutral 'Man,'" in Women, Knowledge and Reality, ed. Garry and Pearsall, 219-232. One of Moulton's best examples comes from her discussion of Bertrand Russell's paper, "On Denoting." She quotes Russell: "Suppose now we wish to interpret the proposition, 'I met a man.' If this is true, I met some definite man; but that is not what I affirm. What I affirm is, according to the theory I advocate: '''I met x and x is human" is not always false.'" "If Russell were correct," writes Moulton, "then parents familiar with his theory would have no cause for anxiety if their young female child, on arriving home several hours late from kindergarten said, 'I met a man.'" (226-227).

65. Trinh, Framer Framed, 169.

66. Williams, The Alchemy of Race and Rights, 73. break