Judith Butler: Performativity

criticallegalthinking.com/2016/11/14/judith-butlers-performativity/

Stephen Young November 14, 2016

Key Concept

Butler’s notion of ‘performativity’ is most famously associated with her views on gender and
is important for critical legal thinkers because performativity is deeply entangled with politics
and legality. Her focus on performance has been widely influential because performance
and performativity enable discussants to move beyond analyses of legal definition or status
to consider the political and social discursive forces that construct and normalize legal or
political practice. For Butler, performativity is not solely an extension of discourse theory as
her later works suggest bodies “speak” without necessarily uttering. This brief review will
provide an abbreviated history on the conceptual genesis of the term “performativity,” how
Butler (re)defines and employs it, and finally how Butler’s account may be useful for critical
legal thinking.

John Austin was an “ordinary language” philosopher who is credited with initiating the study
into performatives. Ordinary language philosophers tend to collapse the use/meaning
distinction and replace it with the notion that the meaning of a word is its use.1 Austin
analyzed performative utterances in three parts: locution, illocution and perlocution.2 His
project, somewhat similar to late Wittgenstein’s, theorized how speech-acts do or mean
things in ways other than generating true and false sentences. Although each sentence may
be said to be true or false, sentences do more than provide true or false pictures of the
world. For Austin a ‘performative utterance’ was a speech act that creates events or relations
in the world. An example is when a bride/groom and groom/bride say “I do” at a wedding,
they may then actually become married. Every utterance is a locution, the noise of an

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utterance when “saying something.”3 The illocution is the effect intended in saying something
(the locution determined by social conventions in particular situations, i.e. marriage), while
perlocution is the effect (upon listeners and in society) by saying something.4

Without going into too much nuanced details of Austin’s theory, one should attend to the
distinction between performance and performative. All utterances are performed, but not all
utterances are performatives. When an utterance meets the social conventions it is has
felicitous uptake making it into a performative that transforms. The bride(s)/groom(s) must fit
into socially constructed roles, i.e. “bride(s)/groom(s)”, that allow them to say “I do” for those
utterance to enact “marriage.” Saying “I do” at a rehearsal dinner will not enact marriage.
Performatives are utterances that engender formative force per the utterance (formative +
per (utterance) = performative). Performatives are, even without a Butlerian slant, fecund
arena for legal interrogation.

Although Butler does not strictly adhere to an Austianian notion of speech-act theory,
occasionally (re)citing John Searle, Derrida and many others, the notion that speech does
something beyond the intended semantic and syntactical meanings remains a central aspect
of her writings.5 Importantly, she combines speech act theory with a phenomenological
theory of “acts,” Lacanian psychoanalysis, as well as a heavy dose of Foucault’s notions of
subject formation to explain how social agents constitute and reconstitute reality through
their performance of language, gesture and sign.6 Under Butler’s account, “agency” already
implies “social agency,” which is to say that someone exhibiting agency is already publicly
identifiable. Performatives are then “inserted in a citational chain, and that means that the
temporal conditions for making the speech act precede and exceed the momentary occasion
of its enunciation.”7

Early Butler focused on the production of women as subjects of feminism. Following

Foucault, who argued that subjects are constructed through the juridical notions of power to
produce the subjects they come to represent, Butler seeks to uncover how it is that “woman”
comes to be a subject and how subject status allows one to stand before the law.8 This
notion that someone comes to stand before the law through the (re)construction of
subjective agency is continually explored through her texts. The “law” Butler speaks of does
not necessarily mean juridical law. Instead, it could be “heterosexual law” which is a bundling
of juridical and disciplinary forms of power into a discursive performance as a way of being.
Throughout the course of one’s life, one reiterates performances of gender that conform to a
gender norm, which has the discursive function of re-inscribing gender performatives and
rendering the individual intelligibile. As such, “gender is always a doing, though not a doing
by a subject who might be said to pre-exist the deed.”9

To see how this works, consider a doctor/nurse’s announcement, “It’s a girl!” The
doctor/nurse’s utterance is a performative act that initiates and constitutes that infant’s way
of being in the world. One could too hastily object that the infant is sexed and is therefore a
girl. That objection elides the doctor/nurse’s performative utterance that collapses
sex/gender into social identity formation. Consider the terms cited in the following sentence:
“the infant had female-body parts that allowed the doctor to exclaim it is a girl.” The “infant-
body,” which is also called “it” before it is “girl-ed” or “boy-ed,” has no social identity. When
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the body is identified as “girl,” the utterance imposes “girl-ness” upon the body, therein
interpellating the “infant”/”it” into “girl.” The act of the doctor/nurse is not mere performance.
It is performative because the act of naming the body a “girl” also constructs “her” identity as
“girl.” This is not a natural fact of the body, but a forcible “citation of a norm, one whose
complex historicity is indissociable from relations of discipline, regulation, punishment’. It is
salient to Butler’s account that before being girl-ed or boy-ed the “infant-body” or “it” is also
excluded from social identification by the re-iterability of the norm.

As connected with legal studies, she writes “Law is not literally internalized, but incorporated,
with the consequences that bodies are produced which signify that law on and through the
body.” Law dictates the form of performance but one performs the law through their
expression even if it not necessarily of their choosing. The doctor’s/nurse’s or someone else’s
performative initiates a ‘script’ (or form) that “governs” and gives rise to the performance of
and on the body. This does not mean one cannot reject that script and adopt a new one.
Much has happened since Gender Trouble was published in 1990! The point is that the
subject only remains a subject so long as they are able to reiterate oneself as an identifiable,
intelligible and hence governable subject, which is dependent on the subject’s ability to
reiterate performatives coherently. If one initiates a performative without a script, one that is
fully outside the bounds of intelligibility, the performance or identity will be unheeded, but it
does not mean they are outside the bounds of power. What renders one intelligible also
demarcates what is unintelligible.

The performative naming of a body upon birth, either male/female or girl/boy, engages an
artificial binary that suppresses more subversive sexual disruptions of hegemonic
heteronormative discourse. However, the disciplinary apparatus that produce discourses of
subjection bring about the very conditions for subverting that same apparatus. “In other
words, the law turns against itself and spawns version of itself with oppose and proliferate
its animating purpose.” Those performatives, those most “injurious interpellations” may then
become sites of radical reoccupation and resignification because those ‘signs/scripts/forms’
are discursively constructed. Were gender identities fail to fit within the binary form one
may enact an identity that challenges intelligibility while subverting the gender binary.

The subversive uses of performativity are manifest through citation and re-citation of the
performative. It is the use of “ordinary language” in “non-ordinary” ways, or what Derrida
would call “reinscription” that a term can break with discourse to engender insurrectionary
potential.13 The iterability of the performance is generated from the citationality of the sign
that allows one to ‘make trouble’ by citing or reciting the performative in ways that are
contrary to or revealing of the instability of heteronormative hegemony.14 Instead of saying
“it’s a girl” the doctor/nurse could have uttered “it’s a lesbian!” For Butler, “the queer
appropriation of the performative mimes and exposes both the binding power of the
heterosexualizing law and its expropriability.”15

Although there is a subversive use, there is always the fear that (re)citing the performative
either re-inscribes the heteronormative hegemony or falls outside of the intelligible. For
instance, one might query whether gay marriage promotes or opposes heteronormative
hegemony? One might easily say that it opposes hegemonic powers because gay marriage
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makes marriages gay. However, following Michael Warner, gay marriage might also make
gays who marry more heteronormative thereby re-entrenching the status quo and further
marginalizing those that are not yet before the law. A way out of this, I think, is the notion
that whatever is the status quo that gives rise to the real, the “forms” or the “scripts” that are
performed giving rise to intelligible performance, is discursively constituted. This always
allows for rearticulation and re-inscription.

For Butler, there are no natural bodies or bodies that pre-exist societal or cultural inscription.
Unlike Arendt, who appears to believe that there are bodies that can remain private, Butler
disagrees. Although a body may not be in the space of appearance, or the sphere of the
polis, their exclusion from that realm is a result of discursively constructed performative
effects upon the body that marginalize or exclude it. They are still “saturated” in power
relations. There is no zoe to the bios or “bare life” in Agamben’s sense. Revealing and calling
attention to that discursive operation through performances can assist in reimaging how
bodies relate to one another.

The ability to continually challenge is more clearly illustrated in Butler’s later works. Where
Butler’s early works are more focused on, perhaps, the individual, recent works are more on
“precarity,” or the making of those who are precarious or on the margins. Again, this recites
how one comes to stand before the law – or how the law disallows people to stand before it.
Not everyone can come before the law, but the legal construction that acts to marginalize
those who cannot come before it generates the very conditions of destabilization. While
performatives enact structures of exclusion, they are the same that give rise to conditions of
radical demonstration.

Performative contradictions, those speech acts that undermine their performative use in the
act of speaking, demonstrate the failure of norms to be universalizing and totalizing. For
instance, in terms of legal censorship, the regulation that “states what it does not want stated
thwarts its own desire…that throws into question that regulation’s capacity to mean and do
what it says[.]” 19 Performative contradictions can be tactically performed to publicly
destabilized pretenses of universality by highlighting it’s spatial and temporal dimensions.
For instance, Butler discusses how undocumented people in Los Angeles took to the streets
to sing the American National Anthem in Spanish in 2006.20 When so-called illegal aliens,
who are “supposed” to be in the dark, appropriate a public space, especially in an “illegal
public demonstration” to sing “America’s” National Anthem in Spanish, they enact multiple
contradictions that interject conflicting ruptures within notions of public/private, legal/illegal,
self/other, and national/non-national “ownerships.” It is the legality that makes the illegal,
and the performative reclamations, possible. The performance of bodies, even those that do
not or cannot sing, enact “speech” through performative contradictions in spaces and times,
momentary flickers, that question who owns what and who is it one thinks one is.

Butler writes of three uses for performativity: 1) it “seeks to counter a certain kind of
positivism,” which might be with regard to gender or the state, 2) it may “counter a certain
metaphysical presumption about culturally constructed categories and to draw our attention
to the diverse mechanisms of that construction” and 3) it is also useful in beginning to
articulate the processes that produce ontological effects, or the naturalized assumptions of
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what constitutes reality. I also add that Butler’s account is useful for understanding how
struggles for subject status interpellate individuals who seek to interpolate which may
produce the unintended effect of further marginalizing those who are already precarious.

Although Butler is recognized for her influence in gender/queer studies, her work is widely
influential. Performatives are generally useful to legal studies because the announcements
of law are often performative. How a judge reads a verdict that has (or fails to have)
performative power to transform relations is a potential object of further inquiry. When
combined with Butler’s interest in the location of the social subject, questions about who
may be the subject of the performative utterance, who is the speaker with the ostensibly
authority to make performative utterances, or who is the unseen or unheard body not yet
before the law.

Stephen Young is working on a PhD at UNSW.

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