But I do want to make two further critical points about the ‘‘politics of the performative’’ that Butler elaborates, both of which relate to her analysis of sovereignty and itseffects within the hate speech debate.
In a second argument against recourse to legal regulation of speech, she notes that calls for such recourse typically rely on an illocutionary model of hatespeech, wherein the speech act brings into being what it says in the very saying of it. This means that there is no temporal distinction between the speech act and its consequences or effects—the speaking is the doing. But, she claims, such arguments for legal regulation of speech wrongly attribute a sovereign efficacy to speech acts, or more precisely to the subject that performs such acts. Such arguments presume that speech acts necessarily do what they say they will do, and thereby elide both the conditions necessary for such felicity and the potential for failure that conditions the speech act. This seems to be the case particularly with regard to hate speech, where the power to injure is located in the speaker of hate, thereby detracting from the recognition of a ‘‘condensed historicity’’ that conditions the terms they use.
This dimension of the speech act ensures that in fact their interpellative force is citational or iterative, deriving from the prior uses or conventionality of terms. As she states, ‘‘the iterability of hate speech is effectively dissimulated by the ‘subject’ who speaks the speech of hate’’.
In contesting this presumption of efficacy, Butler argues that this wrongful attribution of sovereign efficacy also operates within the law, since it relies on the location of the origin of hate speech in an individual subject in order to maintain the legal requirement of culpability. For Butler, the attribution of sovereignty that characterizes illocutionary
models of hate speech is a compensating fantasy that arises from an anxiety over the demise of sovereignty such that power is no longer constrained by its parameters.
This fantasy returns in language, figuring the performative as necessarily efficacious and the subject who speaks hate as the origin of that speech. Thus, the constraints of legal language permit the attribution of responsibility for the injurious effects of speech to an individual who can be held culpable, thereby bringing speech and its effects within a controllable field of operation.
She states, ‘‘by locating the cause of injury in a speaking subject and the power of that injury in the power of speech, we set ourselves free, as it were, to seek recourse to the law—now set against power and imagined as neutral—in order to control that onslaught of hateful words’’.
Against this position, Butler argues that the necessary counter-strategy is to insist on the gap between speech and conduct, to ‘‘lend support for the role of non-juridical forms of opposition, ways of restaging and resignifying speech in contexts that exceed those determined by the courts’’. Hate speech is more appropriately construed as perlocutionary, thus maintaining a distinction between speech and conduct and reopening the temporal disjuncture between the speech act and its effects (267-268).
This opens the possibilities for non-juridical forms of opposition to hate speech in several ways. First, because it challenges the presumption of sovereign efficacy of speech acts, allowing for the failure of terms to do what they say. This also has the consequence that terms are thus available for resignification, and the transformation of their interpellative force that this allows. Second, the failure of the performative is for Butler precisely the site of the political agency of subjects; in other words, the constraints on the efficacy of the performative to do what it says not only signal a failure of action but also generate the opportunity for political action.59 Hence the insistence on resignification as the appropriate strategy of non-juridical opposition is directly related to her commitment to the notion that political potential arises precisely from the structural instability of language and the necessary failure of the signifier to describe that which it purports to name (268).
Given this critique of sovereignty, Butler casts Excitable Speech as an attempt to rethink questions of linguistic agency and responsibility; as she states ‘‘[u]ntethering the speech act from the sovereign subject founds an alternative notion of agency and, ultimately, of responsibility’’. This alternative account addresses the subject’s constitution in language, a position which Butler concedes may well ‘‘intensify our sense of responsibility’’ for linguistic utterance, since ‘‘the one who utters hate speech is responsible for the manner in which such speech is repeated, for reinvigorating such speech, for reestablishing contexts of hate and injury’’.
There appears to be a certain amount of tension, however, between the suggestion that responsibility might be heightened by the citationality of language, and the opposition to legal regulation that Butler maintains. The question to be asked here is how the responsibility that is heightened by citationality differs from and undermines legal responsibility; and it seems that the crucial point of difference is a matter of sovereignty, since for Butler the law is mistaken in its casting of the subject as the origin and sovereign agent of hate speech.
But here, her characterization of the attribution of responsibility in law unnecessarily assumes that legal culpability requires a sovereign subject. For surely it could be the case that the speaker of hate can still be held legally culpable even if the philosophical recognition that the individual is not the origin of such speech is maintained. Cannot the individual be held legally responsible for their citing of a term that carries with it considerable historical and cultural weight as racist or homophobic?
Certainly the determination and attribution of culpability is complicated by this recognition, but it may not yet be undermined completely. In any case, further explication of an alternative account of responsibility and its relation to legal culpability would seem to be required.
Furthermore, there is a sense in which Butler herself fantasizes a certain sovereignty of the law in suggesting that the legal regulation of speech closes down or limits opportunities for extra-juridical opposition in the form of misappropriation and resignification. If legal regulation of speech has such an effect, it would be necessary that the law actually do what it says it will do, that is, demarcate the line of the speakable and the unspeakable and rigorously maintain that demarcation. In other words, to imagine the law as sovereign is not to close down such opportunities but to suggest that such opportunities are foreclosed by legal regulation is to imagine that the state and law is sovereign.
Perhaps what underlies these points of tension within Butler’s argument is a crucial conceptual slippage between the terms of ‘‘conduct’’ and ‘‘efficacy’’. For Butler’s argument is on the one hand an argument against the characterization of hate speech as illocutionary, and thus she insists that a gap between speech and conduct must be maintained. On the other hand though, her arguments against the attribution of sovereignty to the speaker of hate rely on a presumption of efficacy, not precisely on whether or not the speech act is illocutionary.
For it is possible to have an illocutionary speech act which fails to do what it says it will do. In other words, illocutionary speech acts are not always or necessarily efficacious, or felicitious to be more precise—and thus do not presuppose a sovereign speaker—but they nevertheless remain illocutionary utterances. If we uncouple the critiques of sovereignty and illocution in this way, then it seems that these two dimensions of Butler’s argument are in fact at cross-purposes, giving rise to further tensions between the critique of sovereignty that she offers and the suggested consequences or effects of this critique for responding to hate speech.
Returning to the question of Butler’s position vis-a`-vis Foucault’s political pragmatism, so far we have seen that Butler conflates the citational logic of language with the operative logic of power and, further, that her political claims are based on the inevitable instability of political performatives. From these claims, Butler goes on to advocate a strategy of resignification as a ‘‘necessary response’’ to hate speech.64
My contention, then, is that Butler forgoes a contextually contingent pragmatics and instead posits a logic of political action that precedes the conditions which it addresses. Her opposition to the legal regulation of hate speech and the correlative reliance on discursive resignification to contest the interpellative violence that hate speech enacts posits resignification as an a priori response, regardless of the contingent conditions of its realization (270).