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human beings from time to time implies.
The question is whether this vision of human existence, and of the role of
women in it, is possible or desirable. If it is neither, and if Cornell is therefore
mistaken in her quest for difference for its own sake, then difference provides
no more reason than equality to change our present understanding of sexual
identity. It would follow that it does not matter whether and to what extent the
present character of sexual identity is a social construct, for there is no need,
or at least no need that can be described in the comparative terms of equality
or difference, to change that identity in order to ensure that women ¬‚ourish.1
Analysis of sex discrimination would then have to begin with an understanding
of sexual identity as it is, and go on to ask what in society™s present conception
of sexual difference, and of the ways in which that difference matters, must be
changed if women are to ¬‚ourish.
Cornell™s account of the nature of difference and of the obligation to respond
to it is rich and complex. Moreover, it draws on Continental writing that may
be unfamiliar to readers in the Anglo-American tradition, speci¬cally the psy-
choanalysis of Jacques Lacan and the postmodernism of Jacques Derrida. As a
result, the journey through her work is challenging. Yet it is not possible to ap-
preciate the possibilities that her account of discrimination gives rise to without
entering to some extent into the Continental mode of thought that she adopts. In
what follows I have done just that, tempering and explaining where necessary.

I. Introduction
Drucilla Cornell™s account of gender2 is built on a re¬guring of the two in-
sights that de¬ne Catharine MacKinnon™s analysis of sex discrimination. Like
MacKinnon, Cornell believes that gender as we know it is not natural but

1 I leave aside here the possibility that sexual difference needs to be changed, not to change the
nature of the relationship between women and men, but to eliminate any immoral qualities or
characteristics that are de¬nitive of one sex or the other. As I indicated in the ¬rst chapter, I doubt
that there are such qualities and so have discounted the possibility.
2 In this chapter I follow Cornell in using the term “gender” rather than “sex” when referring
to the distinction between men and women. Cornell uses the term “sex” in a way that seeks
to transcend that binary distinction, particularly in her more recent work: see The Imaginary
Domain: Abortion, Pornography and Sexual Harassment (New York, 1995), at 5“7; At the Heart
of Freedom: Feminism, Sex, and Equality (Princeton, 1998), at 6“8.
80 difference

socially constructed. Like MacKinnon too, she believes that in our society that
construction has taken place in hierarchical form. But Cornell™s understanding
of the nature and status of the social construction of gender, and the hierarchy
that it embodies, is entirely different from MacKinnon™s.
For Cornell, as for Jacques Lacan, the in¬‚uential French psychoanalyst
whose reasoning she adopts here, people are formed and their identities es-
tablished as a consequence of their entry into the realm of language and the text
of culture. According to Lacan, whatever else may de¬ne them, all people are
inscribed in this manner as either male or female.3 Seen in this way, gender is
a social construct written in the psyche, or as Cornell puts it at one point, a sen-
tence written in ¬‚esh.4 It is a sentence that is quite literally a piece of ¬ction, a
narrative embodied in language and ungoverned by any more fundamental truth
of gender.5 Yet it is this ¬ction that constitutes what we know as gender reality.
The social construction of gender as a narrative ¬ction implies that there is
no prediscursive gender reality to recover.6 This is not to say, however, that the
text of our culture as it is presented to us exhausts the meaning or possibilities
of gender.7 If that were so, gender reality as we know it would be inescapable,
a conclusion that Cornell believes Catharine MacKinnon is driven to and that
she herself deplores.8 On the contrary, the fact that gender is given to us as a
cultural text precludes neither the existence and signi¬cance of a referent for
gender beyond that text, nor the existence of a beyond to the entire realm of
language and culture, the existence of which is inexpressible but implicit in
both text and referent. Far from it; for Cornell, the status of gender as ¬ction
means, ¬rst, that the feminine exists only as it is written and rewritten, and,
second, that like any other ¬ction its meaning lies neither in the text itself, as it
is given to us, nor in some prior sense or referent that is recovered through the
text, but in the undecidable relationship between the two.9 In Cornell™s view
it is a philosophical error, which she labels essentialist, either to try to look
behind language in the hope of discovering there the truth of what it means to
be a woman or to conclude that what it means to be a woman, as that fact is
constructed in our culture and presented in language, is the truth of gender and
not a ¬ction.10

3 Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law (New York, 1991) at
197.
4 Id. at 197, 198. See also Jacqueline Rose, “Introduction-II”, in Feminine Sexuality: Jacques
´
Lacan and the Ecole Freudienne, ed. Juliet Mitchell and Jacqueline Rose, trans. Jacqueline
Rose (New York, 1982), 27“57, at 55.
5 Beyond Accommodation, supra n. 3, at 3, 129.
6 Id. at 104.
7 Drucilla Cornell, “The Doubly-Prized World: Myth, Allegory and the Feminine”, 75 Cornell
Law Review 644, at 675 (1990).
8 Id. at 686.
9 Beyond Accommodation, supra n. 3, at 2, 26“29.
10 Id. at 26“29, 129“30.
I. Introduction 81

While there may be no prediscursive gender reality that can be invoked
as authentic, therefore, the very fact of our entry into the realm of language
indicates the existence of a realm beyond language.11 The ¬ction that we know as
gender implies the Other against which it seeks to consolidate itself, that which it
renders inexpressible.12 This inexpressibility means that the Other, while never
entirely excludable, cannot be directly known or appealed to. Nor, by the same
token, can the ¬ction of gender be simply discarded, for men and women cannot
be separated from the metaphors in which their lives are constituted.13 The Other
is always accessible, but only interstitially, in the excess of meaning inevitably
present in the metaphor of our lives. Any attempt to engage in the rewriting of
the text, then, or as Cornell puts it, to engage in its remetaphorization, is an act
of recovery of the Other, undertaken in the awareness that the Other cannot be
approached directly and that its complete recovery is impossible.
According to Cornell, the present subordination of women is the conse-
quence of the repression of the Other in the realm of language, the realm that
Lacan calls the symbolic order. For all human beings, the consolidation of their
identity as speaking subjects, through entry into the realm of language, creates
an abiding sense of loss. This universal awareness of our relation to what lan-
guage has made Other, and so separated us from, is reduced by our system of
gender to an awareness of and insistence upon the subject™s identi¬cation of
itself in terms of a projected image of what it lacks. Genuine Otherness thus
becomes embodied in the realm of language as a fantasy image that sustains
the subject™s unity and coherence. That fantasy image is then located in women
and established as femaleness. By these means the image of Woman is de¬ned
as other to an equally fantastic image of the unitary subject, an image located
in men and established as maleness.
So mistakenly understood, the Other is not truly different at all, but an aspect
of the subject™s self-de¬nition and an emblem of his self-suf¬ciency. In this way,
all those possibilities and presences that are Other to the symbolic order are
reduced to the negative aspect of the subject™s self-de¬nition and then inscribed
as Woman.14 Women are thus culturally de¬ned in our society not as truly
different, but merely as other to men, “the non-essence to their essence, the
nothing to their substance”.15 Women have no capacity to de¬ne themselves as
presences or subjects in their own right,16 but are culturally identi¬ed in terms
of a lack that de¬nes the identity and presence of men. It is by these means,

11 Id. at 28, 103“4.
12 The Philosophy of the Limit (New York, 1992) at 1, 142.
13 Beyond Accommodation, supra n. 3, at 3, 198.
14 Id. at 82.
15 Id. at 146.
16 In saying that women cannot be subjects in their own right, I mean to say that they cannot be
genuinely Other “. . . in a social world in which the feminine Other is inexpressible as subject”:
id. at 150.
82 difference

Cornell maintains, that the social construction of gender in hierarchical form
takes place.
Cornell™s second insight, then, is to see hierarchy not as a matter of superi-
ority and inferiority, or only consequently so, but as a matter of presence and
lack. In our culture, identity as a human subject is given a false status, one
that consolidates the myth of masculine presence and is sustained by the cor-
relative myth of feminine lack. Gender is thus at once the method by which
hierarchy is established and its embodiment. For Cornell as for MacKinnon,
hierarchy constructs gender as we know it. For Cornell, however, implicit in this
very hierarchy, although repressed and inexpressible there, is its Other, an in-
¬nite set of possibilities that constantly threatens to disrupt the hierarchy and
expose its false status.
Our society™s approach to the construction of gender is to be condemned
not simply because it is false, but because it violates what Cornell describes as
the ethical relation to the Other, replacing acknowledgment of the Other with
repression and denial, which in turn are visited upon women and for which
women pay the price. The goal of feminism, therefore, is not to see that women
are accommodated in what is by de¬nition a masculine culture, but to pursue
an ethical vision of a nonviolent relation to the Other, by af¬rming the feminine
as a site for deconstructing the present cultural order and reinscribing that order
in nonexclusionary terms.
Like MacKinnon, Cornell tends to fuse the presentation of these two insights,
perhaps because they are presented to us as fused in what we know as gender
reality, a ¬ction that is socially constructed in hierarchical form. But, as in
MacKinnon™s case, it is essential to a full appreciation of Cornell™s work to
distinguish the elements of her analysis and their separate implications.


II. The Deconstruction of Gender
Masculinity, in the Lacanian analysis, is formed in the shape of a fantasy about
the nature of human identity. It is a fantasy that presents identity as uni¬ed,
coherent, and independent, and is founded on the suppression and exclusion of
what that identity renders Other. Femininity is formed as the correlative and
sustaining fantasy of woman as the not-all, to use Lacan™s term. According
to Cornell, we can hope to reveal the true character of human existence only
by disrupting these fantasies so as to reveal the presence of the Other that
is implicit in all images of existence. This in turn requires that we establish
what she describes as a nonviolent relationship to the Other, thereby ending its
status as mere otherness, the negative re¬‚ection of our image of identity, and
its location in women.17


17 See The Philosophy of the Limit, supra n. 12, passim.
II. The Deconstruction of Gender 83

In some respects, Lacan™s own account of gender might be thought to contain
an implicit acknowledgment of the possibility of the kind of disruption that
Cornell calls for. On his analysis, the fantasy that we know as sexual difference
in the symbolic order, despite its comprehensiveness, depends upon the notion
that all experience can be equated with conscious experience, and hence upon
the notion that sexuality exists exclusively in the terms in which it is permitted
to be expressed in the symbolic order. In fact, he claims, sexuality is constituted
by the experiences of both the conscious and the unconscious, and it is in the
unconscious that those experiences that are inexpressible within the symbolic
order are lodged and played out. Such experiences are no less lived because
they are inexpressible. As Lacan explains:
It none the less remains that if she is excluded by the nature of things, it is precisely that
in being not all, she has, in relation to what the phallic function designates of jouissance,
a supplementary jouissance. . . .
There is a jouissance proper to her, to this “her” which does not exist and which
signi¬es nothing. There is a jouissance proper to her and of which she herself may know
nothing, except that she experiences it “ that much she does know.18

Moreover, according to Cornell™s reading of Lacan, this experience of jouis-
sance, the experience of the feminine Other,19 is not only lived but intermittently
revealed in the interstices of the symbolic order.20 The character of language is
such that it cannot stabilize itself and prevent slippage in its form. That inevitable
slippage reveals indirectly, through the excess of meaning present in linguistic
¬gures such as metaphor and metonymy, what language has rendered Other.21
To put it succinctly, nothing ever means quite what it is supposed to mean.
As a consequence, given that identity exists as a linguistic construct, the
loss that necessarily attends the achievement of identity is intermittently
revealed through the slippage of language in the shape of jouissance. This
slippage means that the Other possibilities of the feminine, those aspects of
experience that are pushed under and repressed into the unconscious by the
symbolic reduction of woman to man™s other, can never be entirely excluded
despite the fact that they can never be directly known or expressed.
Yet despite this acknowledgment of the existence of jouissance, and the
recognition of its interstitial presence in the symbolic order, Lacan regards the
status of gender as self-replicating and so insoluble.22 In doing so, Cornell
believes, he overlooks the revolutionary implications of his own analysis.23

18 “God and the Jouissance of Woman”, in Feminine Sexuality, supra n. 2, at 144, 145. See also
Beyond Accommodation, supra n. 3, at 40.
19 Beyond Accommodation, supra n. 3, at 211 n. 28.
20 Id. at 40, 79.
21 Id. at 131.
22 Id. at 53, 68, 79“81. See also The Philosophy of the Limit, supra n. 12, at 86, 175.
23 Beyond Accommodation, supra n. 3, at 79.
84 difference

Moreover, she maintains, here following the work of Jacques Derrida, in rec-
ognizing the authority of the present structure of sexual difference, Lacan does
not merely recognize, so as to describe, the social construction of gender in
hierarchical form but actually helps consolidate that hierarchy.24 Through her
representation of Derrida™s theory of deconstruction in the shape of a doctrine
that she calls the philosophy of the limit, and through the application of that
doctrine to Lacan™s analysis of human identity and sexual difference, Cornell
seeks to deconstruct the present status of gender in the symbolic order, and to
show that in its character as a text it has neither the capacity nor the right to
stabilize itself in the face of the Other.


A. The Problem of Escape
i. lacan: nonidentity. For those seeking to reform the world that Lacan
describes, so as to realize this hope of bringing to an end the present fantasy
of gender, it might appear that one possible response to his account would
be to argue that women contain within themselves, or at least are capable of
acquiring, the capacity to transcend their present predicament, so as to achieve
true identity as human subjects. In its most straightforward sense, however,
this response is simply not available to those who are genuinely interested in
reforming the world that Lacan describes, and who consequently take Lacan™s
account of the nature and origins of human identity as their premise. According
to his account, men achieve identity as human subjects only in and through the
act of dominating women in such a way as to deny them identity.25 For those
who accept Lacan™s view, therefore, that to become a human subject and gain
identity as we know it one must adopt a position of dominance in a hierarchy of
sexual difference, it is clearly not possible to argue that both men and women
can become human subjects.
Lacan maintains that implicit in our concept of identity is the idea that
the achievement of identity for anyone entails the enforcement of nonidentity
upon someone else, or more properly, upon something that might have been
someone else but for that act of enforcement. If that is the case, we can prevent
nonidentity only by abolishing identity in the only sense that we have ever
known it, the sense in which we understand ourselves as distinct from one
another, the sense in which we know ourselves as separate human beings. In its
place we would have to develop a fresh understanding of the nature of human
existence, one that was capable of expressing the sense of contingency and
vulnerability that Lacan believes lies at the heart of human existence. This is

24 Id. at 80, 129“30.
25 I refer here to men and women. Cornell, however, refers to masculine and feminine in order
to emphasize that these are positions that may be taken up by biological males or biological
females, although in most cases the masculine position is occupied by men and the feminine by
women.
II. The Deconstruction of Gender 85

an ambition that Lacan is understandably pessimistic about realizing, and it

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