Tuesday, January 21, 2020



Excerpted from: Peter Halewood, White Men Can't Jump: Critical Epistemologies, Embodiment, and the Praxis of Legal Scholarship, 7 Yale Journal of Law & Feminism 1 (1995) (125 Footnotes) (Full Document)


Where we are positioned in society, and how we think of and live in our bodies, are questions we do not usually connect to the
PeterHalewood(both everyday and scholarly) claims we make about social and legal problems. “The body” and “knowledge” have traditionally been understood as unrelated categories. However, recent interdisciplinary work in philosophy and law emphasizes “positionality,” and calls into question the abstract, disembodied quality of conventional Western theories of knowledge (epistemologies) which ground the Western conception of law. Western epistemology, its critics say, has artificially bracketed off the material particulars of experience and identity, including the spatial particularity of one's bodily experience, in determining what counts in making and defending claims about society and about law's role in maintaining or changing social order. Abstraction, universality, and reason, rather than embodied experience, govern the validity of truth claims. In turn, much contemporary critical legal theory calls into question the liberal jurisprudence which derives from conventional Western epistemology and ethics. Critics say that law's objectivity and principled determinacy have been defined so as to deny the range of experience and self-understanding common to the oppressed. For example, the range of criteria defining a valid rights-claim under liberal jurisprudence--rule governance, rationality, universalizability-- are values associated (within the Western tradition) with masculinity. Femininity is associated in the same tradition with subjectivity, particularity, and the body. The immediacy and subjectivity of embodied feminine experience has been bracketed off from epistemology and in turn from liberal jurisprudence.

In another Article, I explore the relation of this jurisprudential bracketing to the commodification of the body by biotechnology and gender practice. In this Article, I will examine the narrower, prior issue of the epistemological bracketing of embodiment. Commodification is simultaneously the experience and the result of these two bracketings combined. For example, women experience commodification when their bodies are used for commercial surrogacy; simultaneously, the uniqueness of the embodied female experience of pregnancy is denied by legal discourse governing custody disputes between surrogates and the contracting “parents.” In order to comprehend the injustice of commodification (although there are some instances where it is not unjust), epistemology and jurisprudence must be able to grasp the centrality of embodiment and of the concrete experience of oppression. It is this that the critiques of conventional epistemology aim to promote. I argue that the experience of commodification conditions one's epistemological standpoint. Thus embodiment and commodification constitute a distinct epistemological standpoint that law must validate. I suggest that the epistemological gap between the standpoints of privileged abstraction and oppressed embodiment can be partially bridged by focusing on forms of oppression and embodied experience that are common to men and women, to whites and people of color.

These critiques of disembodied epistemology have prompted a concern about how and by whom legal scholarship that focuses on subordination--for example scholarship relating to the law of gender and race equality--is produced. This is some of the most important scholarship in which legal academics engage. The critiques, and the corresponding pressure for diversity in law schools, call into question the legitimacy of scholarship concerning subordination. This scholarship is often conducted by white male legal scholars. These scholars often employ the disembodied, abstract rationality that I have mentioned. This prompts several related questions that I address in this Article. Can a white male scholar adequately address in his scholarship forms of oppression which he does not and cannot experience? Is a white male scholar situated (personally and “epistemologically,” as the debate goes) so as to be able to really understand, unpack, and contribute constructively to scholarly debate on oppression and law? Is the presence in law reviews of his scholarship on oppression, with its implication of superior understanding, legitimate? Should he engage in scholarship on oppression? How does his white-maleness inform his scholarship? Is he likely to overlook in his scholarship ways in which law is implicated in oppression? Can he restructure his scholarship so as to ally himself with the aims of diversity and empowerment? I believe that these questions have been mischaracterized as reflecting a purely political agenda to advance the “outsider” scholarship of women and minorities by criticizing “insider” scholarship. In fact, they reflect a set of sound philosophical (that is, epistemological) propositions about the relation of scholarly knowledge to embodied experience and social reality.

I, a white and male legal academic, have encountered and reflected upon these questions in my research on problems of race, law, and gender, and while teaching feminist legal theory in several different areas of the law. In this Article, I draw in part upon my experience in scholarship and teaching to illustrate some of the problems that accompany scholarship on subordination issues, and to theorize a new or modified mode of white male scholarship that goes some way toward meeting the legitimate philosophical objections raised against white male scholarship on subordination as it is currently practiced.

These objections concern the relation between overtly political legal problems (commonly sex and race discrimination), and the sex and racial identity of the legal scholar inquiring into them (commonly male and white). The debate is informed in part by recent feminist philosophical and critical race theory literature, both legal and nonlegal. Much of this literature might be characterized as postmodern because it rejects conventional objectivist models of truth and of a fixed human agency. Some of it explicitly or implicitly argues that the white male epistemological perspective is fixed by the elevated position of white men in the social hierarchy, a position achieved in part by having successfully privileged abstraction and disembodiment in Western rationality, epistemology, and jurisprudence. Therefore, the argument goes, the epistemological accuracy of white male scholarship on oppression is uncertain, and perhaps white men should relinquish or radically modify such scholarship. Part of this concern is that white male scholars may appropriate and profit professionally from perspectives lived and articulated by others. For the most part, white male legal scholars can safely write and say things critical of the social order that minority and female legal scholars cannot. Part of the concern is that white men simply “don't get it” on issues of subordination, and consequently cannot adequately address subordination in their scholarship.

My intended audiences are two. First, I wish to engage, both constructively and supportively, those feminist critics and critical race theorists whose critiques of mainstream scholarship are grounded in the assertion that white men cannot and do not write about subordination with an adequate appreciation of the issues. Such critics might argue that, in an epistemological world populated by multiple forms of consciousness, “white men can't jump.” Second, and more centrally, I wish to convince those white male law professors who are unfamiliar with--or unpersuaded by--the critical literature to take its arguments seriously. It is they who wield power and enjoy privilege in legal academia, and whose scholarship is most questionable--and questioned-- in view of this critical literature.

I hope to demonstrate that progressive, committed, white male law teachers should engage in scholarship investigating the relation of law to social and political subordination, provided that they do so in ways that respond to feminist and minority critiques of scholarship, and provided that in doing so they do not preempt or displace scholars who are white women or people of color. I think that while specific forms of subordinated experience are not at hand to white male scholars on which to base their scholarship, nonetheless one usually has some fragment of such experience from which to build bridges to other groups' experiences of subordination. Furthermore, I think that the perspective of subordinated groups is likewise inherently partial experiences of white women, for example, do not mirror those of women of color. Consequently, the best scholars can hope for is to work together and to combine perspectives, each contributing to an improved picture of the social whole.

My primary point, however, is that in view of the feminist and critical race theory epistemological critique, the position of white male scholars in legal academia has been radically altered in ways that demand attention and response in our scholarship. Rather than approaching the subject of law and subordination as neutral, theoretical experts or as political vanguardists, white male legal academics must recognize the legitimacy--even the superiority--of certain “outsider” perspectives on these issues, and assume the role of secondary contributors to the development of scholarship in these areas. Simultaneously, we should redirect the focus of our scholarship to ourselves--to white-maleness--in an effort to discover the myriad ways in which white-maleness has encoded the racialized, gendered privilege and power which white men enjoy and expect in our society. By thus inserting ourselves and our privilege into the scholarly equation, the normative thrust of our scholarship could then be to reconstruct positive, nondiscriminatory forms of white-maleness rather than to dispassionately study the oppression of others.

By “epistemology,” I mean the theory of knowledge one applies in making scholarly or philosophical claims about the nature of reality, whether legal, social, or political reality, or an amalgam of these. In this Article, I am concerned specifically with the claims one makes about law's relation to oppression. Conventional Western epistemology has posited an objectivist or representational relationship between the knower and reality; reality, it was claimed, could be mapped objectively into our consciousness. Knowledge properly conceived must be abstract and perspectiveless; the knower must be a disembodied knower. From post-structuralist and linguistic critiques of conventional epistemology in the 1960s and 1970s have emerged new, postmodern or pragmatic feminist and critical race theory critiques of epistemology. These reject the objectivist, representational aspects of epistemology and posit in their place an embodied, contextualized, and experiential theory of knowledge. Knowledge is narrative. Perspectivelessness is now seen as an ideological move; knowledge properly conceived is (and can only be) concrete and perspectival. Our knowledge of oppression is augmented by including the perspective of embodiment and the subjective narratives of the oppressed.

I begin with a critical discussion of white male “good intention” as a basis for scholarly inquiry into oppression. In Section II, I explore the general theory of scholarly diversity which has produced the crisis of legitimacy for white male scholarship. In Section III, I examine arguments about standpoint and embodied, experiential epistemology made by some feminist and critical race theorists that form the basis of the concern about the legitimacy of white male scholarship. In Section IV, I explore the relation of intention and empathy to progressive scholarship in this new epistemological setting, and suggest a theoretical framework to bridge the gap between the white male standpoint of disembodiment and the subordinated standpoint of embodiment. Finally, I explore ways in which white male scholarship on surrogacy and gender/race commodification might employ my theoretical prescriptions.

[. . .]

Of course, the discussion of commodification and surrogacy above reveals not only the partiality of white male perspective, but also that of feminism or critical race theory as a particular place from which to make law or understand domination. On the other hand, the implicit claim that members of a dominated group may use their experience of being dominated in one sphere to sensitize themselves against dominating in another may be generalizable. Many white men have some experience to call on in that respect--class and economic vulnerability, sexual orientation, physical or mental disability, to name a few. Adopting a subjective epistemology of embodiment would allow white male interpretation to build bridges to others' experiences of oppression. Of course not everyone's experiences are the same, and cannot be, any more than experiences of sex discrimination and race discrimination are the same. The task is rather to use whatever partial experience of domination we do have to build bridges to other people's partial experience in the hope that our collective picture of the truth of domination in society will be thereby improved. In this Article, I have attempted to explain why I think white male scholarship on law and domination must become much more tentative and Other directed in view of the inevitably partial contribution male perspective on domination can make to this collective process.

The conventional liberal argument about legal scholarship on questions of social subordination has seldom questioned the authenticity of the white male scholarly “voice,” apart from questioning the intentions of individual scholars. Scholarship, as a matter of course, has not been linked to scholarly identity and the structural problems of epistemological perspective that accompany identity. Some feminist and critical race writing, I have argued, compels legal scholars to re-examine the supposed importance of intention in scholarship in view of embodiment and epistemological situatedness. Because the epistemological critiques must be taken seriously, a radical re-thinking of position is required of white male legal scholars, both in terms of one's confidence in the accuracy of one's knowledge and in terms of one's political position in the scholarly community. The legitimacy of the claims one makes in scholarship interpreting experiences of subordination that one does not share is called into question. Consequently the conventional role of law professor as “reluctant omniscient,” dispassionate master of theory and principle, is also called into question.

The problem is not, however, fatal to the enterprise of white male scholarship on matters of oppression. What is clear, in view of the epistemological critique, is that a realignment of scholarly priorities is called for on the part of white male legal scholars, one that requires acknowledgment that one's epistemological perspective is only partial. White male legal scholars must acknowledge their own viewpoint and situatedness, and the viewpoint and situatedness embedded in the law. This acknowledgment can be unnerving, and the responses it requires demanding. The relentless contextualization of perspective which results from feminist and critical race theory demands effort. Effort becomes a component of truth-seeking; one must demonstrate self-discipline in order to stretch one's “imagination to identify and understand the perspectives of others.” There must be more self-criticism, more listening, more learning from others, and an effort to earn accountability to the groups whose subordination one wishes to examine in one's scholarship. We white men must avoid appropriating the voices of those who actually experience the subordination that we wish merely to document and interpret.

Most importantly, a shift of scholarly focus is required. There is a promising new movement in legal scholarship focusing on reinterpreting and reconstructing whiteness and maleness. Rather than focusing on the effects of discrimination on the oppressed, we should bring our experiential base to bear on a scholarly analysis of our own complicity and benefit in the oppression of others, and on our own racialized and gendered self-understandings which flow from that benefit. In fact, it is the white-male experience of domination that we white men could best study, rather than others' experiences of oppression. In so doing, white male scholarship will have transformed itself, for not only will what we are looking at have changed, but also where we are looking from.

Assistant Professor, Albany Law School of Union University.

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