Vulnerability, for Example: Disability Theory as ExtraordinaryDemand

Kate Kaul

Canadian Journal of Women and the Law, Volume 25, Number 1, 2013,pp. 81-110 (Article)

Published by University of Toronto Press

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Vulnerability, for Example: Disability

Theory as Extraordinary Demand

Kate Kaul

Le present article examine les fonctions de l’analogie et de l’exemple dans latheorie interdisciplinaire de l’incapacite, citant la vulnerabilite comme unexemple eloquent de ce qui unit et oppose les etudes sur l’incapacite et latheorie feministe. Il place le caractere politique et subjectif de l’incapacite aucentre de l’analyse et considere l’interaction entre l’universel et le particulierdans l’operation ou la fonction de l’incapacite comme categorie. La premierepartie de l’article, qui porte sur les exemples et les analogies, presente les theoriesde l’exemple et de l’analogie et les met en relation avec les strategies de l’exempleet de l’analogie que l’on retrouve dans les etudes sur l’incapacite et la theoriefeministe, surtout dans le travail de Robert McRuer, de Rosemarie Garland-Thomson, de Joan W. Scott et de G. Thomas Couser. La deuxieme partie abordel’analyse de Debra Bergoffen de la vulnerabilite et le concept d’universalitegenree ainsi que la possibilite de l’appliquer a une theorie de l’incapacite. La troi-sieme partie analyse l’articulation de la subjectivite vulnerable de Judith Butler etla notion de sujet vulnerable de Martha Fineman. La quatrieme partie se tourneplutot vers le particulier par la lecture de l’argument de Sherene Razack selonlequel la reforme feministe du droit devrait reconnaıtre la difference propre al’incapacite. Cette partie presente egalement les exemples de Couser et de PaulLongmore sur le fonctionnement precis de la vulnerabilite dans l’experience del’incapacite.

This article considers the function of analogy and example in interdisciplinary dis-ability theory, taking vulnerability as an extended example of the shared concernsand the contrasting demands of disability studies and feminist theory. It centres apoliticized disabled subjectivity and considers the interplay of the universal and theparticular in the operation, or function, of disability as a category. The firstsection of the article, “Examples, Analogies,” presents theories of example andanalogy and relates them to strategies of example and analogy in disability studiesand in feminist theory, particularly in the work of Robert McRuer, RosemarieGarland-Thomson, Joan W. Scott, and G. Thomas Couser. The second section,

This work has been supported at various stages by a fellowship from Syracuse University’s Center forHuman Policy, Law and Disability Studies, by a York University contract faculty major researchgrant, and by a week as a visiting scholar with the Feminism and Legal Theory Project at EmoryUniversity School of Law. Julie Petruzzellis, David McNally, Marie-Christine Leps, Julia Creet,Steven Taylor, and Alison Kafer read an earlier version of the work. Participants in workshops heldby the Feminism and Legal Theory School discussed sections that I presented there. I thank all ofyou for your suggestions.

CJWL/RFDdoi: 10.3138/cjwl.25.1.081

“Translation into Politics,” considers Debra Bergoffen’s discussion of vulnerabilityand the gendered universal as well as the possibility of its translation into disabilitytheory. The third section, “Vulnerable Subjects,” discusses Judith Butler’s articulationof vulnerable subjectivity and Martha Fineman’s notion of the vulnerable subject. Thefourth section, “More Vulnerable Subjects?” shifts to the particular with a reading ofSherene Razack’s argument that feminist law reform must recognize disability’sspecific difference and of Couser’s and Paul Longmore’s examples of the particularoperation of vulnerability in disability experience.

Introduction

In “Violence, Mourning, Politics,” Judith Butler presents the odd commonality, theparadox, of embodiment’s universality: “[W]e are alike only in having this con-dition [—this embodiment—] separately and so having in common a conditionthat cannot be thought without difference.”

1For Butler, individuation, embodiment,

and community are linked, inextricable from one another and from the possibility ofviolence. We are, she writes, “as bodies, outside ourselves and for one another.”

2

To be embodied is to be vulnerable.Of course, to suggest that embodiment is universal is, at one level, to state the

obvious. Is any of us not embodied? The reverse is less certain, with anybodywho seems to be just a body, rather than somebody, at risk of being declared notquite one of “us,” in a distressing challenge to our notions of life, death, andhumanity. Drawing attention to the universality of embodiment is tactical, ofcourse, given the term’s particular history, with some of us routinely framed interms of embodiment and its concomitant vulnerability, others in terms thatignore it, that refuse it—terms that take bodies for granted. And yet embodiment,while it is not the only way to think about being—about subjectivity—is, so far,the only way to be.

This article takes vulnerability and its embodiment—in theory and in experi-ence—as an example of some of the difficulties in conceptualizing feminist and dis-ability theory together, reading feminist disability studies as a term that participatestoo readily in the practices of analogy and substitution. In considering not only theshared concerns and strategies, but also the contrasting and sometimes conflictingdemands, of feminist theory and disability theory, this inquiry both draws attentionto, and participates in, a radically inter-disciplinary understanding of disabilitytheory. Disability theory is implicated with other critical theories in complexways, with its imitation, translation, substitution, inversion, and reversal of othercritical theories. This inquiry calls for the close attention to the real effects ofour own textual practice—to the language, terms, and strategies that we use—

1. Judith Butler, “Violence, Mourning, Politics” in Judith Butler, Precarious Life: The Powers ofMourning and Violence (London: Verso, 2006) 19 at 27.

2. Ibid.

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which Joan W. Scott calls for in her now classic 1986 essay, “Gender: A UsefulCategory of Historical Analysis.”

3In considering disability as a category of analy-

sis, this article considers the ways in which Scott’s articulation of gender in aspecific historical moment can be applied to an understanding of disability inthis moment—not in translating one category into another but in taking upScott’s careful attention to language and its material effects. It considers thework of example and analogy in disability theory, which is inextricable from thework—the operation—of disability as example. It cautions against analogies withgender, considers an example of a gendered universal, and suggests the impossi-bility, in these terms, of making an application to disability. And, yet, analogy isa way to make sense, to make meaning—it constructs disciplines, subjects, andreaders. To discuss, even to argue against, this kind of analogy, this kind of appli-cation, is to repeat it—and not so much to operate it (to anticipate DebraBergoffen’s reading of Derrida’s “universal translating machine”) as to watch itoperating.

4The article takes up the difficult politics of the tensions between identity

and function, universal and particular, that are inextricable from disability asproblematic.

My concern in taking up vulnerable embodiment as a specific intersection offeminist and disability-focused concern and inquiry is to consider embodimentnot only as a question of ethics but also as a question of form.

5What kind of uni-

versal is possible, useful, coherent, or imaginable in considering the vulnerability ofembodiment—something we experience only alone, only together? In focusing ondisability, my intention is not to take disability as a limit case—as extraordinaryvulnerability or as extraordinary embodiment, although it is commonly representedin this way—but, rather, as a concept that, in its specific mobilizations of bodies andsubjectivities, the biological and the social, the real and the figural, makes extraordi-nary demands. We might think of the ethics of embodiment, which a recognition ofvulnerability seems to call for,

6as another demanding concept, one that expresses

3. Joan W Scott, “Gender: A Useful Category of Historical Analysis” (1986) 91 American HistoricalReview 1053.

4. Debra Bergoffen, “February 22, 2001: Toward a Politics of the Vulnerable Body” (2003) 18Hypatia 116 at 128, citing Jacques Derrida, Politics of Friendship, translated by George Collins(New York: Verso, 1997) at 196.

5. Definitions of “form”—as the genre, shape, structure, and pattern of a work—tend to lament theterm’s vagueness except in its clear opposition to “content,” an opposition that they immediatelyidentify as, in practice, more of an entanglement. See MH Abrams, A Glossary of LiteraryTerms (Fort Worth, TX: Harcourt Brace, 1993) at 71-2 sub verbo “form”; and Chris Baldick,Oxford Concise Dictionary of Literary Terms (Oxford: Oxford University Press, 2004) at 100-1,sub verbo “form.” Terry Eagleton offers a discussion of this entanglement as dialectical, in theMarxist critical tradition: “[F]orm is the product of content, but reacts back upon it in a double-edged relationship.” Terry Eagleton, Marxism and Literary Criticism (Berkeley, CA: Universityof California Press, 1976) at 21.

6. See Ann Murphy’s discussion of contemporary feminist interest in vulnerability in Ann V Murphy,“Corporeal Vulnerability and the New Humanism” (2011) 26 Hypatia 575 at 589. As she puts it,“[t]he vulnerability of a human body may be an ontological truism, but recent feminist scholarship

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the tension between ethics—which, as the consideration of right action ( judging)necessarily stops short of action itself ( judgment)—and embodiment, which isnot only being-in-a-body, but actualization. Can a discussion of embodimentmove from ethics to politics?

7The Oxford English Dictionary’s definition of

“embodiment” presents the sense of “actualization” with its examples movingeasily between the embodiment, or actualization, of ideas (a remarkable belief, anational feeling, evil) and people, or kinds of people (a sailor, a tradesman), in away that demonstrates the impossibility, not of distinguishing between ideas andpeople but, rather, of using the notion of “embodiment” to do so.

8Embodiment,

then, is never just about bodies.As a phenomenon of representation—a figuring—that at the same time interpel-

lates and identifies, compensates, and stigmatizes real people, disability—or dis-ablement—occupies an odd in-between space in a consideration of the universaland the particular. As an instance of disability’s interdisciplinary operation, vulner-ability points to the ways in which disability enables analogy and exemplarity, tothe ways in which exemplarity and analogy fail disability as a political concept,and to the particular crisis embodied in the collapse of disability’s two functions:as a politics, an experience, a materiality, and, at the same time, as a codedsystem of representation and failure.

Martha Fineman observes, “[u]ndeniably universal, human vulnerability is alsoparticular.”

9What is this universal particularity? Perhaps only an understanding of

the universal particularity of subjectivity and of experience offers the possibilityof understanding disability not as an example, not as an analogy, not as a figureof something else but, rather, on its own terms.

10This may be the epistemological

suggests that it is also much more than that. The vulnerable human body is also the provocation foran ethics insofar as it elicits a response” (at 577).

7. See Tobin Siebers’s extended discussion of the differences and overlaps between ethics,aesthetics, and politics in Tobin Anthony Siebers, The Subject and Other Subjects: On Ethical,Aesthetic and Political Identity (Ann Arbor, MI: University of Michigan Press, 1998),especially at 7-8.

8. The Oxford English Dictionary (OED), sub verbo “embodiment j imbodiment,” online: OED,http://www.oed.com.ezproxy.library.yorku.ca/view/Entry/60906?redirectedFrom= embodiment..

9. Martha Albertson Fineman, “The Vulnerable Subject: Anchoring Equality in the HumanCondition” (2008–9) 20 Yale Journal of Law and Feminism 1 at 10.

10. Robert McRuer writes: “Throughout the 1960s and 1970s, increasingly vocal liberationmovements made disability and homosexuality spectacular in new ways; LGBT people, peoplewith disabilities, and their allies attempted to define sexuality and bodily and mental differenceon their own terms.” Robert McRuer, foreword by Michael Berube, Crip Theory: CulturalSigns of Queerness and Disability (New York: New York University Press, 2006) at 12.McRuer relates the possibility of one’s “own terms” to Williams’s discussion of dominant,residual, and emergent discourses in Raymond Williams, Marxism and Literature (Oxford:Oxford University Press, 1977). McRuer suggests that the assumptions that made gay sexscandalous even in the context of these movements are “arguably residual” (at 12). Williamswrites: “The residual, by definition, has been effectively formed in the past, but it is still activein the cultural process, not only and often not at all as an element of the past, but as aneffective element of the present” (at 122, quoted in McRuer, ibid, at 12, n 12). In this context,

84 Kaul CJWL/RFD

demand of a politicized notion of disability—but, of course, no concept can exist onits own terms. In the context of my inquiry into the politics and practices of inter-disciplinarity, vulnerable embodiment serves as an example of some of the difficul-ties and possibilities at work in the contemporary interplay of feminist theory anddisability studies—an interplay that exceeds any straightforward conceptualizationas “feminist disability studies.”

11The demand that disability makes of an ethics

of embodiment, of any strategic shift in the universal, is that it be neither anexample, nor an exception—that a category based always in notions of difference,be centred. Is this possible? Perhaps this is the demand that disability makes of agenuinely political interdisciplinarity.

Examples, Analogies

A student once told me, in a class discussion of what “counts” as disabilitystudies: “I explain disability studies by saying ‘it’s women’s studies for disabledpeople.’ But now,” she said, “I’m in the critical disability studies program, myfriend said, ‘Oh, critical disability studies; that’s for really, really, disabledpeople’.” The room commiserated—we have all had analogies fail.

12Of course,

the analogy worked too. It worked for the student as an example of how difficultit is to explain disability studies to people who do not understand a critical perspec-tive, let alone a critical perspective on disability. In an effort to engage her listeners,the student had risked including herself in the category of people who thinkwomen’s studies is for women. The example worked as a way to show us, in theroom, how hard the work of definition is—that it is work: action and perform-ance—and that it is our work; it asserted the existence of a group.

Alexander Gelley’s discussion of “unruly examples” points to the overlapbetween analogy and example.

13The strange embeddedness of disability—as a

function, a concept, and an experience—in both example and analogy makes thisexemplarity a nexus for considering the interdisciplinarity of disability studies.This article’s discussion alone draws on feminist theory, queer theory, disability

Williams reminds us not only that the assumptions of the 1960s continue to influence the presentbut that we can have no terms of our own.

11. A difficulty arises here with the language available. There are few easy parallels between“feminism,” a noun that shifts obediently into an adjective to offer “feminist theory,” “feministmovement,” and identifying a group of particular interest—or, at least, focus—“women.” Thereis no noun comparable to “feminism” in the discourse of disability and disability studies, andwhile “disability theory” is available, the phrase “disability rights movement” points to the lackof a convenient adjective parallel to “feminist.”

12. The failure lies in the listener’s assumption that women’s studies is “for” women, rather than “for”the women and men who might benefit from an epistemological centring of “woman” or gender,or sexual difference, from the knowledge made possible by this epistemological project and fromthe change it might produce.

13. Alexander Gelley, “Introduction,” in Alexander Gelley, ed, Unruly Examples: On the Rhetoric ofExemplarity (Stanford, CA: Stanford University Press, 1995) 1.

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theory, feminist legal theory, and critical theory. Is a political understanding of dis-ability even imaginable without analogies to race, to gender, to queerness?

14Yet

disability’s ordinary—we could say, normative—function is to represent differencein a way that explains the normal to the normal. It functions as an example that leadsaway from itself.

15

Gelley discusses the oddly dual function of the example. For Aristotle, hesuggests, exemplarity is—examples are—primarily oriented to a pragmatic functionand to rhetoric. For Plato, in contrast, examples are linked to a cognitive principleand to ontology. “How,” Gelley asks, “are they related?” He writes:

If the example as model, as paradigm, derives from . . . the elevation of asingular to exemplary status—then its meaning becomes dependent not onthe instance itself but merely on its application. Is the example merelyone—a singular, a fruit of circumstance—or the One—a paradigm, aparagon? The tactic of exemplarity would seem to be to mingle the singu-lar with the normative, to mark an instance as fated.

16

Examples go further than what we would think of as simple illustration. Examplesare strategic; they argue almost without arguing; they perform. Certainly—and I amtrying to do this with you—they are a way to interpellate, even to construct, an audi-ence. Drawing on these two traditions, the example, writes Gelley, points bothbackward and forward: “[B]ack to a source, a whole from which the examplederives” (be it real, biblical, or—in a rhetorical context—hypothetical) andforward to an addressee “for whom the example has . . . been selected andfashioned.” Gelley suggests that this outward reach “constitutes the rhetorical—[even] pragmatic—dimension of example.”

17The example is oriented towards a

conclusion, a truth, or principle that the speaker may have in view but that hasnot yet been established. And Gelley offers what he calls “another puzzle regardingexample: is it, semiotically, sample or illustration? Does it work by way of

14. Given the specific history of race politics in the United States, such analogies are often used toargue against the exclusion of people with disabilities in public spaces, comparing this to race-based segregation. See, for example, Joseph P Shapiro, No Pity: People with DisabilitiesForging a New Civil Rights Movement (New York: Times Books, 1994). For a discussion ofqueerness and disability, see McRuer, supra note 10.

15. For an extended discussion of disability, example, and exception, see Kate Kaul, “DisabilityStudies as Critical Theory” (PhD thesis, Graduate Program in Social and Political Thought,York University) [forthcoming].

16. Gelley, supra note 13 at 2. Readers of this journal may recognize this function of the example asthe specific function of law. Gelley discusses Jean-Luc Nancy’s use of a juridical model in which“case stands for example” (ibid, at 12 [emphasis in the original]) as a way to explore the fallibilityat the heart of judgment. “In the logic of law, of justice (le droit), Nancy argues, law should be auniversal code: each case should be foreseen [whereas, in] practice, each needs to be situated andlegitimated, case by case” (ibid, at 11, citing Jean-Luc Nancy, L’Imperatif categorique (Paris:Flammarion, 1983)).

17. Gelley, supra note 13 at 3.

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synecdoche (part for whole) or analogy (similitude)?”18

Gelley cautions: “[T]heanalogical function is usually decisive,” and he warns:

[It] is very easy from this strategy to shift from an analogical to an iconicmode . . . [I]n the rhetorical sense not only does the example picture, it mayalso induce an imitating reproduction on the part of the receptor or audi-ence. The mimetic effect here is linked not, as is usual, to techniques ofrepresentation but to forms of behaviour, to a goal of ethicaltransformation.

19

Gelley’s account emphasizes the performance, the action, of example: “Theexample turns into an exemplar and its function becomes that of propagatingitself, creating multiples.”

20

An example, an analogy, does not just illustrate a known truth, it makes an argu-ment; it leaps. I am not suggesting that we step away from analogy, exemplarity, oreven that the examples I am presenting are not useful, effective, or good. I wantonly to suggest that exemplarity is productive; it has consequences. To say“women’s studies is like disability studies”—for example—is, to some extent, tomake this true. It is to conceive of disability studies as something that is likewomen’s studies and to abandon a conception of disability studies that might bedifferent, contradictory. For example, Rosemary Garland-Thomson’s positioningof disability studies securely within “the critical genre of identity studies”

21is a

narrowing of the scope of disability studies. It situates disability studies in thehumanities and also in a specifically US trajectory that began with the civilrights movement. And the analogy has other consequences, of which RobertMcRuer’s discussion of Judith Butler offers an extended, but important, example.In a chapter entitled “Compulsory Able-bodiedness and Queer/DisabledExistence,”

22he writes:

Able-bodied identity and heterosexual identity are linked in their mutualimpossibility and in their mutual incomprehensibility—they are incompre-hensible in that each is an identity that is simultaneously the ground onwhich all identities supposedly rest and an impressive achievement thatis always deferred and thus never really guaranteed. Hence Butler’s

18. Ibid.19. Ibid.20. Ibid.21. Rosemary Garland-Thomson, “Integrating Disability, Transforming Feminist Theory” (2002) 14:3

National Women’s Studies Association Journal 1 at 1, revised and reprinted in Kim Q Hall, ed,Feminist Disability Studies (Bloomington, IN: Indiana University Press, 2011) 13.

22. The title echoes Adrienne Rich’s influential “Compulsory Heterosexuality and Lesbian Existence”in Ann Snitow, Christine Stansell, and Sharon Thompson, eds, Powers of Desire: The Politics ofSexuality (New York: Monthly Review Press, 1983) 177 (first published in 1980).

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queer theories of gender performativity could be reinscribed within dis-ability studies, as this slightly paraphrased excerpt from Gender Troublemight suggest.

23

McRuer demonstrates this by “bracketing” what he calls “terms having to doliterally with embodiment” for Butler’s own terms of gender and sexuality:

[Able-bodiedness] offers normative . . . positions that are intrinsicallyimpossible to embody, and the persistent failure to identify fully andwithout incoherence with these positions reveals [able-bodiedness] itselfnot only as a compulsory law, but as an inevitable comedy. Indeed,I would offer this insight into [able-bodied identity] as both a compulsorysystem and an intrinsic comedy, a constant parody of itself, as an alterna-tive [disabled] perspective.

24

McRuer continues: “In other words, Butler’s theory of gender trouble might beresignified in the context of queer/disability studies to highlight what we couldcall ‘ability trouble’—meaning not the so-called problem of disability but the inevi-table impossibility, even as it is made compulsory, of an able-bodied identity.”

25

McRuer’s assertion here that “[a]ble-bodied identity and heterosexual identityare linked in their mutual impossibility and in their mutual incomprehensibility”is compelling, but it is important to consider in more detail just how they arelinked. Able-bodied identity and heterosexual identity are linked, connected, intheir operation as categories and constructions, but they are also linked in theimmediate context of McRuer’s text. What is the effect of the way that McRuerhimself is connecting them? If, and I agree with McRuer, each of these identitiesis, in a sense, the ground on which all identities supposedly rest, then each isnecessarily incomprehensible in the terms of the other. But gender and disabilityare separated in the first place, to some extent, because they are analogized; thetactic that brings the two sets of terms together, also separates them. ResignifyingButler’s theory of gender trouble in the context of queer/disability studies surelyneeds to leave concepts and terms “of gender and sexuality” operating. McRuer’sintention, “to highlight what we call ‘ability trouble’”—meaning, he says, “notthe so-called problem of disability but the inevitable impossibility, even as it ismade compulsory, of able-bodied identity”—is an interesting one, but one thatrequires abandoning analogy to consider the complex and difficult interplay ofthese identity constructions. As a strategy, analogy is both partial and productive.McRuer’s analogy is enormously effective in engaging, even constructing, a

23. McRuer, supra note 10 at 9.24. Ibid, quoting and adapting Judith Butler, Gender Trouble: Feminism and the Subversion of

Identity (New York: Routledge, 1990) at 122.25. McRuer, supra note 10 at 10.

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queer-disability studies audience. Yet there are some important differences that theanalogy not only leaves untouched but also produces. Within the frame of theanalogy, we are left with the impossibility of discussing historical representationsof homosexuality as disability, which justified/led to the incarceration of “perverts”in asylums and, more recently, to the diagnosis and treatment of homosexuality as apsychiatric disorder. McRuer’s own extended example, later in his introduction,demonstrates the connections between these two impossible performances, but todo this he has to overturn, exceed, his own framework.

26

In her own response to Adrienne Rich’s essay (and to McRuer’s), “CompulsoryBodies: Reflections on Heterosexuality and Able-bodiedness,” Alison Kaferconsiders the effects of what she calls “the logic of substitution” at play in rewriting,analogizing, in the way that her own paper and McRuer’s do. Her article sets theeffects of this logic of substitution against the gaps in Rich’s essay in an analysisthat demonstrates that the two make each other, with substitution a response thatcannot in itself address the gaps which provoke it.

27For example, Kafer writes:

Queerness, due to its history of medicalization, threatens to disrupt theinstitution of able-bodiedness, while disability, because of its associationswith deviance and perversity, threatens the boundaries of heterosexuality.This interrelationship is lost when heterosexuality and able-bodiedness arediscussed in isolation.

28

Analogy, so valuable in introducing the idea of disability as a political category likesex, race, class, simultaneously forecloses a complex understanding not only of howdisability is different from these other others but also of how it makes their oper-ation possible. The translation that so many theorists have made of Butler’s sex/gender distinction into impairment/disability is now a familiar one in disabilitystudies. It allows us to distinguish between biological and social aspects of disable-ment at least for a moment before we have to acknowledge that these binaries, likeothers, are themselves political, with no “pure” social available for discussion.These are imperfect acts of translation, but they are, necessarily, how we make

26. See McRuer’s reading of disability and homosexuality in the public response to the arrest ofWalter Jenkins (Lyndon Johnson’s chief of staff ) in 1964 for “indecent gestures” (ibid at 10-13).

27. Alison Kafer, “Compulsory Bodies: Reflections on Heterosexuality and Able-Bodiedness” (2003)15:3 Journal of Women’s History 77 at 81.

28. Ibid at 81-2. See also Ellen Samuels, “Critical Divides: Judith Butler’s Body Theory and theQuestion of Disability” (2002) 14:3 National Women’s Studies Association Journal 58, revisedand reprinted in Hall, supra note 21 at 48. Samuels considers the effects of substitutions suchas McRuer’s, arguing that transpositions that substitute “disability” for “gender,” rather thanengaging Butler’s work in the specific context of disability studies, “indicate some of thepotential pitfalls to beware as we embrace that future” (at 62). As Samuels notes, the best ofthis work engages with the differences, rather than the similarities, that the analogy of sex/gender to impairment/disability points out. She cites Mairian Corker in particular, as “usingButler . . . in a contextualized fashion to engage with an important debate about the role ofimpairment in developing feminist disability theory” (at 64, n 5).

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sense to one another. But in what can only be a discourse of analogy and example,attention to these practices takes us from identity politics to questions of therelationship between the particular and the universal. What happens if wecompare, instead of terms, acts of translation, rhetorical appeals, examples?

In turning to Joan Scott’s article, in offering her work as a model, I implicatemyself entirely in the discourse of exemplarity, analogies, and models. But“Gender: A Useful Category of Historical Analysis” offers a historically specificconsideration of gender, one that offers a more concrete, nuanced—we mightsay, discursive—object to compare to disability than the simple, “disability islike gender” assertion (with which it is almost impossible to disagree) at firstsuggests.

29More important, Scott’s close attention to form and to historical

examples offers an articulation of the complexities, politics, and stakes at workin our understanding and use of “gender.” This articulation makes clear that,even twenty-seven years later, the suggestion that disability is like gender—thatanything is like gender—leaves us with a great deal of theory still to do.

30

Scott suggests that “gender” allowed feminists “to insist on the fundamentallysocial quality of distinctions based on sex”; to reject “the biological determinismimplicit in the use of such terms as ‘sex’ or ‘sexual difference’”; to stress “the rela-tional aspect of normative definitions of femininity”; and “to introduce a relationalnotion into our analytic vocabulary,” considering women and men in relation, ratherthan separately.

31At this point, the “relational notion” that Scott refers to is women/

men, rather than the sex/gender the contemporary reader might expect.Scott’s own examples suggest that gender was first articulated and analogized in

terms of class. Scott quotes Natalie Davis, who “suggested in 1975, ‘It seems to methat we should be interested in the history of both women and men, that we shouldnot be working only on the subjected sex any more than an historian of class canfocus entirely on peasants.’”

32Scott herself argues:

The litany of class, race, and gender suggests a parity of each term, but, infact, that is not at all the case . . . [W]hen we invoke class, we are workingwith or against a set of definitions that, in the case of Marxism, involve anidea of economic causality and vision of the path along which history hasmoved dialectically. There is no such clarity or coherence of either race orgender. In the case of gender, the usage has involved a range of theoretical

29. Scott, supra note 3, and McRuer, supra note 10, are among Garland-Thomson’s, supra note 21 at15, own examples of theoretical intertextuality.

30. See Elizabeth Weed, “From the ‘Useful’ to the ‘Impossible’ in the Work of Joan W Scott” inJudith Butler and Elizabeth Weed, eds, The Question of Gender: Joan W Scott’s CriticalFeminism (Bloomington, IN: Indiana University Press, 2011) 287. Weed writes that “gender nolonger destabilizes the familiar” (at 287, commenting on the new preface of the 1999 revisededition of Joan W Scott, Gender and the Politics of History (New York: Columbia UniversityPress, 1999)).

31. Scott, supra note 3 at 1054.32. Ibid.

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positions as well as simple descriptive references to the relationshipsbetween the sexes.

33

Despite these references to both race and class, Scott offers no specific examples ofrace in her discussion.

34While in 1985, class analysis, and Marxist feminism, in

particular, was apparently robust enough to offer a basis for articulating gender,this class analysis has not survived the shift from gender analysis to feminist disabil-ity theory—not, at least, as a framing discourse with which most of the newlyconstructed feminist disability studies audience can be assumed to be familiar.Prioritizing this connection—making disability and class make sense together—may demand a shift in what we think of as feminist disability studies, and this isespecially true in the North American context.

35The clarity and coherence that

Scott attributes to class, but not to race or gender, is likely to be elusive in theorizingdisability.

36

This is not to say, of course, that comparisons between class and gender havebeen, in Scott’s view, always successful. Her discussion of CatharineMacKinnon’s work, for example, points to the limitations of analogy, which canonly suggest a correspondence, without offering causes, reasons, or history. Scottquotes MacKinnon:

“Sexuality is to feminism what work is to marxism: that which is mostone’s own, yet most taken away” . . . Continuing her analogy to Marx,MacKinnon offered, in the place of dialectical materialism, conscious-ness-raising as feminism’s method of analysis . . . Although sexualrelations are defined in MacKinnon’s analysis as social, there is nothingexcept the inherent inequality of the sexual relation itself to explain whythe system of power operates as it does. The source of unequal relationsbetween the sexes is, in the end, unequal relations between the sexes.

37

33. Ibid at 1055.34. This is understandable, given the structure of Scott’s own inquiry, which considers in detail three

theoretical positions that feminist historians have taken up in their use of gender as an analyticcategory: first, attempts to explain the origins of patriarchy; second, attempts to understandgender in the context of “a Marxian tradition”; and a divided third, using either the Frenchpost-structuralist or the Anglo-American object-relations theorists “to explain the productionand reproduction of the subject’s gendered identity” (at 1057-8).

35. For an interesting discussion of some of the broad differences between disability studies in theUnited States and the United Kingdom, where disability studies draws more generally on aMarxist, materialist tradition to approach disability as a social oppression, see Helen Meekosha,“Drifting Down the Gulf Stream: Navigating the Cultures of Disability Studies” (2004) 19Disability and Society 721.

36. For examples of US work that does take a materialist approach to disability, see Nirmala Erevelles,Disability and Difference in Global Contexts: Enabling a Transformative Body Politic(New York: Palgrave Macmillan, 2011); Marta Russell, “What Disability Civil Rights CannotDo: Employment and Political Economy” (2002) 17 Disability and Society 117.

37. Scott, supra note 3 at 1058.

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Crucially, Scott’s analysis takes up the connection between the figural, or formal,function of gender and its real, historical, function in a series of examples in thelast section of her article. Scott writes: “Gender has been employed literally or ana-logically in political theory to justify or criticize the reign of monarchs and toexpress the relationship between ruler and ruled.”

38Her own examples consider

the interplay of the literal and the analogical in which a state’s “assertion ofcontrol and strength” was not just coded in masculine terms “but was [also]given form as [an actual] policy about women.”

39Scott considers the material

effect of analogies between divorce and democracy, between the family and thestate, from the time of the French Revolution to the twentieth century. In her lastexample, Scott argues, “the concept of class in the nineteenth century relied ongender for its articulation.”

40This last example leads to her compelling articulation

of gender “as a primary way of signifying relationships of power.” She writes:

Gender is one of the recurrent references by which political power hasbeen conceived, legitimated, and criticized. It refers to but also establishesthe meaning of the male/female opposition. To vindicate political power,the reference must seem sure and fixed, outside human construction, partof the natural or divine order. In that way, the binary opposition and thesocial process of gender relationships both become part of the meaningof power itself; to question or alter any aspect threatens the entire system.

41

With this necessarily cursory treatment of Scott’s analysis, I hope to emphasize herengagement with form and content simultaneously. This is what we need to takeup—and, in this suggestion, of course, I am agreeing with Rosemarie Garland-Thomson, who notes the importance of considering not only the overlappingconcerns of feminist theory and disability studies—“representation, the body, iden-tity, activism”—but also the importance of feminist methodology to disabilitystudies.

42Scott notes, in tracing the emergence of “gender” in feminist scholarship,

that the term was offered “by those who claimed that women’s scholarship wouldfundamentally transform disciplinary paradigms [not only adding] new subjectmatter but also [forcing] a critical reexamination of the premises and standards ofexisting scholarly work.”

43Certainly, this impulse—we could call it universal-

ist—is active in disability studies, with McRuer arguing, in the example discussedearlier in this article, that both homo/heterosexuality and disability/able-bodied-ness function as foundational categories, the kind of category whose theory

38. Ibid at 1070.39. Ibid at 1072.40. Ibid at 1073.41. Ibid.42. Garland-Thomson, supra note 21 at 4, 19.43. Scott, supra note 3 at 1054.

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might have the power to undo categorization altogether—or at least make itcomprehensible.

44

The struggle between disability as universal and disability as particular is evidentin this conversation. Reviewing the 2002 collection Disability Studies: Enabling theHumanities, Bruce A. White criticizes the impulse towards the universal as bothrepetitive and inappropriate. In his response to Michael Berube’s own hope,expressed in the afterword, “that the volume is indicative of the potential universa-lization of disability,”

45White writes:

If he should live so long, [Berube] would like to see disability studiesbecome “central to any adequate understanding of the human record.”Visionaries in the nascent phase of other disciplines, such as culturalstudies, have expressed similar hopes, but such heady enthusiasm shouldbe tempered . . . Given that the discipline of disability studies is ultimatelygrounded in unique embodiments, then theorization from the particulariza-tion of disability to the universalization of disability will always belimited.

46

This reading suggests that disability studies is necessarily proceeding by analogy,framing disability as just one more example of a category that, in Scott’s words,will force “critical re-examination.”

47Yet these analogies are productive.

Garland-Thomson, for example, transposes Eve Sedgwick’s 1990 version of thepossibility of a universal category. She writes:

A feminist disability theory introduces what Eve Sedgwick has called a“universalizing view” of disability that will replace an often persisting“minoritizing view.” Such a view will cast disability as “an issue of con-tinuing, determinative importance in the lives of people across thespectrum.”

48

44. McRuer counters Lennard Davis’s notion of a “post-modernist” disability studies as a globalizingbody “which could be at the vanguard of a new postidentity world” and so, in McRuer’sinterpretation, “good news for other identity groups.” McRuer, supra note 10 at 202. McRuercalls instead for a recognition of more complex approaches to post-identity analysis, work that“acknowledges the complex and contradictory histories of our various movements, the range ofcritical work that has been done” (ibid, citing Lennard Davis, Bending over Backwards:Disability, Dismodernism, and Other Difficult Positions (New York: New York UniversityPress, 2002) at 26).

45. Michael Berube, “Afterword: If I Should Live So Long” in Sharon L Snyder, Brenda JoBrueggemann, and Rosemary Garland-Thomson, eds, Disability Studies: Enabling theHumanities (New York: Modern Languages Association, 2002) 337.

46. Bruce A White, “Book Review of Disability Studies: Enabling the Humanities” (2004) 4 SignLanguage Studies 210 at 215.

47. Scott, supra note 3 at 1054.48. Garland-Thomson, supra note 21 at 5, quoting Eve Kosofsky Sedgwick, Epistemology of the

Closet (Berkeley, CA: University of California Press, 1990) at 1.

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Of course, Sedgwick’s actual suggestion is that an understanding of what she calls“the homo/heterosexual relation,” not “disability,” will do this, so that Garland-Thomson’s substitution effects an economic presentation of “disability” as arelation parallel to homo/heterosexual, containing both sides of the field itdivides. This translation of queer theory into feminist disability studies, likeMcRuer’s translation of Butler, interpellates queer theorists, or feminists familiarwith queer theory, into Garland-Thomson’s audience. Her examples do the realwork of constructing a discourse by imagining, insisting on, a reader. And re-ima-gining is what is at stake.

Yet an important difference between gender and disability is obscured by theseanalogies and examples, perhaps also by my own. The suggestion that we theorizedisability as a universal category, in the sense of the “ability/disability system”—asGarland-Thomson puts it—in which we all live, is an important one.

49Disability

does seem to have another, related, connection to the universal, one that is incom-patible with positive notions of disability identity, with what I think of as my ownidentity as a disabled person. How do we account, within these translations and ana-logies, for the position of disability not only in the definitions of medicine, law, andpolicy and beyond the symbolic where, as Garland-Thomson suggests, “the culturalfunction of the disabled figure is to act as a synecdoche for all forms that culturedeems non-normative”?

50How do we account for the recurring function of disabil-

ity as marking failure within, even the failure of, other categories? However suc-cessful we are, this demand that we represent failure is surely part of everydisabled person’s experience. No analogy can help us with this. The tensionbetween the figural function of disability and the possibility of disability as apolitical subject position is an important problematic in disability studies.

Within existing power relations—within the ability/disability system—disabilityas a concept, a strategy, a recourse—I would emphasize disability as a function—leaves each of us vulnerable to the de-legitimation and incomprehensibility that are,in Scott’s terms, a failure of experience, in ways that reinforce, re-inscribe, anduphold systems of power: gender and heterosexuality, race and class.

51“We”

counter this with the positive: with disability as a way of encountering and identify-ing with a diverse, interesting, resourceful community, with the energy of activism,and even with the pleasure of critique. This can be an exciting coming-out—orperhaps falling-in—experience for people who fall into disability, or disability iden-tity, through disability activism or disability studies. In these moments of transition,of bodies and identities, this kind of experience (identity formation, communitybuilding, subjectivation) is often clearly, and emphatically, positive. But does allthis challenge the function of disability in supporting these other systems?

49. Garland-Thomson, supra note 21 at 4-5.50. Ibid at 3.51. Scott, supra note 3 at 1073.

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Engaging with the dual function of disability as not only an identity category butalso as the systematic, political, and necessary failure of every other category, orvector, of power and identity means considering race and gender as not analogousto, but inseparable from, disability. In the context of her discussion of gender, Scottconnects this kind of de-legitimation and incomprehensibility to experience:“[W]ithout meaning, there is no experience.”

52To speak from an abject category,

however faulty it may be, to make meaning and experience in this way, has apeculiar political force. Is this the force of shifting from the ethical to the political,of shifting the subject position? The texts, critical conversations, and cultural workthat make up the discourse of disability studies present what they enable us to thinkof as a disability perspective as simultaneously particular and universal. This is thekind of exemplarity, of example work, that does the work of disability studies, thatmakes possible—demonstrates and performs—a kind of disability subjectivity.

What could this politicized, disability-centred, subject position look like?G. Thomas Couser’s work offers a compelling example. In “Life Writing asDeath Writing: Disability and Euthanography,” Couser’s disability-based analysisof the suicide survivor story has a peculiar political force because it re-frames(we could say, it re-examples) a story of absolute vulnerability—of, apparently,the coerced suicide of a depressed woman with advancing multiple sclerosis byher older, male, partner. Couser considers the genre of life writing, or deathwriting, which he calls “the assisted-suicide note”—the note in which a survivorinsists that his action was not murder but, rather, assisted suicide.

53In the assisted

suicide note, the more familiar subject position of the suicide note is reversed. Thesurvivor represents the dead subject in one of the most invested representations ima-ginable, trying to avoid guilt, censure, and prosecution. In his example, Couser’sanalysis frames, represents, this invested account in a way that sets individualexperience—not only the survivor’s diary, which the survivor cites as proof ofhis partner’s readiness to die, but also the misery of a male partner who hasbecome an unsupported, unwilling caretaker—in a social context. But this is asocial context that, insofar as it justifies the survivor’s account as coherent, if notlegitimate (“I was tired, she was needy; my work was affected, she could nolonger write; I was older, she was incontinent”), is rendered as unsympathetic asthe survivor is.

54

In Couser’s analysis, it is not only the writer, but also the anticipated reader—us—that makes this example into disability experience, that takes up the part ofan absent subject as an active subject position, that speaks, acts, argues, and re-pre-sents. The account makes us wish for the dead woman’s side of the story in a way

52. Ibid at 1063.53. G Thomas Couser, Vulnerable Subjects: Ethics and Life Writing (Ithaca, NY: Cornell University

Press, 2004) at 153.54. See Kelly’s discussion of the strange primacy of “incontinence” in discussions of death and

dignity. John Kelly, “Incontinence” (2002) 1 Ragged Edge, online: Ragged Edge online,http://www.raggededgemagazine.com/0102/0102ft3.htm..

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that the survivor’s diary entries, so manipulable and invested, do not present to us.The odd function of the example that allows us to speak, however imperfectly, forone another makes disability experience possible. It is the framework of disabilitystudies that supports my own reading, a reading in which the survivor’s claim tovulnerability depends on erasing not only a woman’s voice but also her account,replacing it with two of his own—the apologia of the assisted-suicide note andthe diary that may have resulted in his conviction.

In this example, vulnerability shifts, importantly, away from disability. A classicpresentation, in which vulnerability is attached to a woman with multiple sclerosiswho is dead, is countered by an alternative, in which the reader’s sympathy (and thenarrator’s freedom from prosecution) depends on the success of the husband whohas (at least) assisted her suicide in narrating himself as vulnerable, as a victim.The writer, George E. DeLury’s, apologia follows the structure of recognitionand counter-claim: “Yes, she was vulnerable but I was more vulnerable,” and itfollows four months of prison after his guilty plea to a judge (not jury) based onhis own admission that he killed his wife. Couser suggests that DeLury’s publishedbook, But What If She Wants to Die? is an effort to supplant earlier life writing,including his actual diary, more ominously titled: “Countdown: A Daily Log ofMyrna’s Mental State and View toward Death.” Passages of the diary were releasedto the press, including:

I feel that everyone is perfectly ready to see me die for your sake, but noone is prepared to do anything for my sake. And I am dying. I have only afew years left, ten at most probably, but only two to three if my work loadcontinues as it is . . . but no one asks about my needs.

I have fallen prey to the tyranny of a victim. You are sucking my life out ofme like a vampire and nobody cares. In fact, it would appear that I amabout to be cast in the role of villain because I no longer believe in you.

55

Given this context, Couser writes: “[DeLury’s] book’s burden as an assisted suicidenote is to convince readers that it is not a ghostwritten note contrived to disguise hisauthorship of [his wife’s] suicide itself.”

56

Most effective, for me, is the way that Couser’s examples, which he situates inthe context of debilitating illness and spinal-cord injury, refuse any distinctionbetween the biological and the social. Instead, he considers event (a woman isdead, a young man has survived a diving accident) and narrative (the survivorwrites a public defence, a father presents the real work it takes to re-imagine hisson’s future in deciding whether to end his changed life) as both crucial to the con-struction of reality: not only crucial to the way we think of reality but also to what

55. Couser, supra note 53 at 155.56. Ibid at 157.

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we will allow it to be—for there is a real sense in which we will not allow to exist afuture that we cannot imagine.

Bodies and narratives are inseparable in Couser’s reading, presenting the elusivefragility not only of life but also of subjectivity. In his reading of a memoir writtenafter the author’s seventeen-year-old son’s accident, Couser observes that cardsfrom friends and family—an immediate social—and the example of disabled celeb-rities—a greater social—may have made it possible for both a parent with noexperience of disability and his newly injured teenager to imagine life after aspinal-cord injury. Couser suggests that the father’s being able to answer hisson’s question “will I have to go to a school for cripples?” with “no” is crucialto the outcome of this narrative, showing a transition in the boy’s own ability toimagine his future.

57The injured boy’s father, a lawyer (who is thus, as Couser

notes, a professional storyteller) is able to draw on the specific gains of the US dis-ability rights movement, including broader social acceptance, the very public, ifoften problematic, activism of Christopher Reeve and others, as well as legislationto support integrated education, in order to re-imagine his son’s future. In Couser’sreading, a father’s changing story changes his mind, moving him to support hisson’s altered life, instead of authorizing the withdrawal of his treatment andending his life.

58

Feminist theory, queer theory, and disability studies all make possible thisreading of biography as political in Scott’s sense. In her words, it is “political inthe sense that different actors and different meanings are contending with oneanother for control.”

59The examples of an impossible, an unproven, prop-

osition—of politicized disabled subjectivity—multiply, they propagate.

Translation into Politics

Debra Bergoffen’s article, “February 22nd, 2001: Towards a Politics of theVulnerable Body,” does not present itself as feminist disability studies. But as aconsideration of the politics and the limits of translation from one politicaldemand to another and the shifting operation of the universal, it offers disabilitytheory a suggestive, productive, example—if we choose to read it this way—ofan inquiry into the difficult relationships between universal and particular,between theory and practice. And it offers an example of a shift in “vulnerability,”in which vulnerability is detached from the particularity of female experience andattached—along with that particularity—to a new universal, one that includes thevulnerability of the sexed body.

57. G Thomas Couser, Signifying Bodies: Disability in Contemporary Life Writing (Ann Arbor, MI:University of Michigan Press, 2009) at 160, citing Richard Galli, Rescuing Jeffrey (Chapel Hill,NC: Algonquin, 2000) at 159.

58. Couser, supra note 53 at 143-53.59. Scott, supra note 3 at 1074.

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Derrida’s notion of translation into politics is his response to suggestions thatpostmodern writing—or deconstruction, in particular—is not political—useful—enough.

60It is a defence of the utility of deconstruction. Yet “translation into poli-

tics” both suggests that deconstruction is useful, and, at the same time, it suggeststhat deconstruction is never useful—that it is only political in translation. Bergoffenuses Derrida to understand the implications of a particular judgment by the UNHague war crimes tribunal, a judgment in which the court identified rape for thefirst time as a crime against humanity. The tribunal found three former BosnianSerb soldiers guilty of raping and torturing Muslim women and girls and also con-victed two of the three men for enslaving their captives. Bergoffen notes that thecourt recognized the inequality of soldier defendants and civilian victims and“immediately identified the difference between submission and consent.”

61

Bergoffen responds to critiques of postmodernism that suggest that it “[discre-dits] democratic discourse, [steals] subjectivity from women just as they were onthe brink of securing it, and [undermines] the politics of rights necessary to securingwomen’s social, economic, and political well-being.”

62But she is also responding

to postmodernism’s most famous defender, Derrida himself, who declares:“No deconstruction without democracy. No democracy without deconstruction.”

63

In reading Derrida’s theory of the event against this event, his analysis of judgmentagainst this judgment, Bergoffen effects a dual interrogation of theory and politicsin a demonstration of their mutual inextricability.

This interrogation, in which event and analysis challenge each other, is never sosimple as a direct application of theory to practice, nor so satisfactory as a completeoverturning of theory by practice. What, then, is the relation between the two?Bergoffen quotes Derrida: “[O]ur question at every moment concerns politicaltranslation. It is indeed a question of knowing the rules of translation, but first ofall of making sure that translation is possible and that everything can be translatedinto politics. Is the political a universal translating machine?”

64If the political were

a universal translating machine, what would it translate from and what would ittranslate into? What might these two things be that are outside the political?Who could operate a universal translating machine? The image of the universaltranslating machine seems to make at least two suggestions: the first is a machine

60. Derrida, supra note 4.61. Bergoffen, supra note 4 at 121, citing Carol Pateman, “Women and Consent” in Carol Pateman,

The Disorder of Women (Stanford, CA: Stanford University Press, 1989) 71. See also MarliseSimons, “Bosnian War Trial Focuses on Sex Crimes,” New York Times (16 February 2001);and Prosecutor v Kunarac, Kovac, and Vukovic, Cases IT-96-23 and IT-96-23/1-A, Judgmenton Sentence Appeal (12 June 2002) (International Criminal Tribunal for the formerYugoslavia, Appeals Chamber), online: ICTY ,http://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdf..

62. Bergoffen, supra note 4 at 122.63. Derrida, supra note 4 at 105, quoted in Bergoffen, supra note 4.64. Derrida, supra note 4 at 196, quoted in Bergoffen, supra note 4 at 127-8 [emphasis in the

original].

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that can be operated, one that Derrida can use in his book The Politics of Friendshipto translate the heteronomies of friendship into the principles of citizenship.

65The

second is a mechanism in which translation itself is automatic, inevitable, whichneeds no operator, for which no subject need take responsibility—a machine thathas no politics of its own.

Bergoffen’s reading, her translation, finds that what to Derrida seems to be priorto politics, waiting for translation, is already political. Not only that, but the desirefor something prior to politics, the desire to fix the moment at which somethingenters the political—as well as the desire for automatic, necessary, translation—isalways political. Bergoffen writes: “Patriarchy marks the woman’s body as defini-tively other and as uniquely vulnerable in its otherness.”

66Translated through this

patriarchy, Derrida’s reading cannot take us as far as the court’s. As Bergoffen putsit, “Derrida, suspicious of democracy’s juridical discourses, offers searching ana-lyses and asks for women’s patience. The problem of masculine friendship’slegacy to/for democracy must be worked through before the question of womancan be raised.”

67For Bergoffen, Derrida “buries the question of the feminine.”

68

The question of the feminine is not simply waiting for an application, or extension,of Derrida’s analysis of friendship. Instead, in Bergoffen’s own essay, it emerges asa disruptive, corrective, deconstruction of the deconstructionist’s own postpone-ments and defences. The feminist reading that destabilizes Derrida’s own apologeticinsistence on starting with the masculine works theory against reality (Derrida’sessay against the Hague’s ruling) and finds, for once—and for me, this is the bigsurprise of Bergoffen’s essay—that, in this instance, theory is more hesitant, lessbrave, and less hopeful than the real. How is this possible?

The court’s position is different from Derrida’s, since its task is at some point tostop thinking and to suspend possibility by acting, speaking, judging; his is to keepthinking, to keep open the many possibilities of the perhaps.

69In this particular

judgment, as Bergoffen’s analysis shows, the court uses the tools available to it;these tools are both necessarily subject to critique and, at the same time, available.Where Derrida is rightly suspicious of all universals, the court manages to extendthe universal to the sexed body, enacting what Butler calls a “performative contra-diction.”

70Echoing the example-structure that Gelley describes earlier, the

65. Bergoffen, supra note 4 at 127.66. Ibid at 133.67. Ibid at 123.68. Ibid.69. Of course, Derrida does offer a description of the impossible, but necessary, action of judgment

elsewhere. See Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority’” inDrucilla Cornell, Michel Rosenfeld, and David Gray Carlson, eds, Deconstruction and thePossibility of Justice (New York: Routledge, 1992) 3.

70. Bergoffen, supra note 4 at 125, citing Judith Butler, “The End of Sexual Difference?” in ElisabethBronfen and Misha Kavka, eds, Feminist Consequences: Theory for the New Century (New York:Columbia University Press, 2001) 414 at 430-1. See also Judith Butler, Excitable Speech:A Politics of the Performative (New York: Routledge, 1997).

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performative contradiction involves the tension between universal principle and par-ticular event. Butler notes that universals are the result of consensus, and theychange. The undecidability inherent in the universal is suspended in the enactmentof a particular judgment.

If the political were a universal translating machine, an unproblematic mechan-ism for which no one need take responsibility, Derrida’s masculine neuter analysiswould somehow translate itself into the feminine. Would Derrida’s analysis alsotranslate itself into disability? Where would it stop? If the political were a universaltranslating machine, surely an application, or translation, of Bergoffen’s feministcritique to disability would have made itself available at this point in the article.Instead, her reading suggests a different kind of translation, one that concentrateson tactics rather than on content, a translation not into disability or disablement,but, rather, into disability studies or disability theory.

What, then, can Bergoffen’s extended example—her analysis of the event of theUN decision—have to do with disability or with disability studies? This analysishas implications for a politics of difference as it suggests, in its consideration ofthis judgment, the possibility of recognizing vulnerable embodiment as the presen-tation of universal humanness, in acknowledging the sexed body as a presentationof the universal. In terms of content, then, Bergoffen’s article seems to beg fortranslation into disability studies. In her conclusion, Bergoffen writes:

If we pursue the logic of this ruling we discover that the politics of the vul-nerable body leads us to speak of justice in terms of the community ofthose with nothing in common. Nothing in the ruling suggests that thedifference of the woman’s sexual integrity could or should be erased.The point of the ruling is to insist that the difference be recognized andrespected. In this the court brings the Enlightenment’s universal principlesof humanity, equality, and dignity to the hope and anxiety of a politics ofthe body—perhaps.

71

But to take this conclusion as a jumping-off point for translation into disabilitywould be to hit a limit point. It seems to me that to suggest that a specific differ-ence—the sexed body—be recognized and respected is radically different fromsuggesting that difference—any difference, difference as an organizing principle,difference as an identification (or a refusal of identification) in itself—be recognizedand respected. The tension between the universal and the particular that Bergoffenraises here is important to understanding the operation—the function—of disabilityas a concept and a category. Nonetheless, in extrapolating from this example, thisspecific instance, to disability, we need to be cautious of an over-simple translation.For example, are we necessarily, always already, talking about disability when wetalk about bodies and vulnerability?

71. Bergoffen, supra note 4 at 133.

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In shifting Bergoffen’s enquiry, the assumption that talking about bodies andvulnerability means talking about disability is itself an inescapable object of disabil-ity theory. This shift demands not yet another analogy between one object andanother—between women’s bodies and disabled bodies, for example—but a recog-nition of the tension between two specifics, two sets of investments, concerns, andstrategies. These sets—we might call them feminist theory and disability theory,since there is no ready parallel to the open-ended problematic of “disability” avail-able—not only overlap one another but also support each other; they make eachother comprehensible, possible.

Disability theory needs interrogations of universals, of rights discourse, of thepolitics of identification—as well as interrogations of its own translations fromone social movement, or political discourse, to another—as themselves political.Scott’s analysis both argues for, and demonstrates, the material force of analogyand example. This force is most obvious in the context of the legal decision, butit operates, nonetheless, in more humdrum textual practices. In moving fromBergoffen’s extended example to the specificity of disability, we take up moreexamples of the strange, imperfect, operation of the far-from-universal translatingmachine that we can imagine connecting “feminist” to “queer,” to “disability,”constructing these categories just as it connects them. And the faulty productivenessof this interdisciplinary translation is, surely, comparable to the work of analogy andof example: the partial (in both senses) mapping of the familiar onto the new, themaking sense by making things make sense.

Perhaps Derrida’s translating machine, operating even as Bergoffen discredits it,is the same faulty mechanism as the robotic judge that Eve Tavor Bannet describesin her own discussion of the analogy and exemplarity inherent in law.

72In the struc-

ture of analogy that Bannet presents, it is the subjectivity, the reality—we might saythe actualization—of the judge that makes law, example, meaning possible, even asit demonstrates the impossibility of law’s perfect operation. Quoting Max Weber,Bannet writes: “The purest type of exercise of legal (or rational) authority is thatwhich employs a bureaucratic administrative staff [that makes decisions according

72. Eve Tavor Bannet, “Analogy as Translation: Wittgenstein, Derrida, and the Law of Language”(1997) 28 New Literary History 655. Bannet’s discussion echoes Gelley’s, supra note 13, ofexemplarity and law. She offers an interesting account of the “founding analogy,” in whichscientists leap from the order they attribute to God, to Newtonian mechanics to argue for thenecessity of the human sciences, so that John Locke concludes: “There is nothing in this world. . . so unstable, so uncertain, that it does not recognize authoritative and fixed laws.” JohnLocke, Questions Concerning the Law of Nature (Ithaca, NY: Cornell University Press, 1990)at 96, quoted in Bannet, ibid, at 659). See also Ellen Samuel’s interesting discussion ofanalogy in Ellen Jean Samuels, “My Body, My Closet: Invisible Disability and the Limits ofComing-Out Discourse” (2003) 9 Journal of Lesbian and Gay Studies 233, and especially thesection “The Limits of Analogy,” which introduced me to Eve Tavor Bannet’s article onanalogy and informs my own discussion.

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to] a law that can be counted on like a machine.”73

As Bergoffen demonstrates,translation takes place not through a universal machine but, rather, through patriar-chy, racism, and the unpleasant complex of the contemporary, and no discourse, ordiscipline, is immune. This is one insight that we may be able to translate relativelydirectly, when we consider the discursive strategies of disability studies, and disabil-ity theory. We should also be prepared for the possibility that this kind of translationinto interdisciplinary disability theory may, in Walter Benjamin’s terms, have anunsettling effect on its original.

74To take up Bergoffen’s analysis of the court

ruling that makes rape—violation rather than violence—a crime against humanitywill not be simply to extend her provocative, useful, reading but insteadsomehow to unsettle it, to shift its terms.

Vulnerable Subjects

Butler asks: “Who counts as human? Whose lives count as lives? And finally,What makes for a grievable life?”

75She argues for the need to reimagine the possi-

bility of community on the basis of a universal, human-defining, vulnerability andits shared exposure to loss. Butler reads the post-9/11 United States as a melan-cholic subject, one that is unable to properly mourn its notion of itself as invulner-able on home soil. Butler points out that as states and as individuals, we mournfamiliar lives more readily than unfamiliar lives. In refusing to fully recognize, togrieve, the casualties of US and US-supported military action abroad, we renderthose lives—and deaths—unreal. This “derealization,” she argues, perpetuates vio-lence.

76For Butler, vulnerability depends on recognition, a recognition through

which we open ourselves to one another and to the possibility of something differ-ent. Recognition opposes derealization. And Butler charges feminism with this taskof asserting vulnerability, of recognition, of grieving. This is a feminism that itselfmust be open—an international feminist coalition will also depend on a recognitionof vulnerability, of the vulnerability of subjects to one another.

Butler’s essay is “Violence, Mourning, Politics”; it is not “Violence, Mourning,Ethics.”

77As politics, rather than ethics, the essay’s crucial subject is not individual

deaths but, rather, the state that is refusing to recognize and to grieve them—namelythe United States. In shifting a psychoanalytic discussion away from individualAmerican psyches to the new object of the state, Butler is wary of analogy:

73. Bannet, supra note 72 at 660, quoting Max Weber, General Economic History (London: Allenand Unwin, [nd]) as quoted in David Binns, Beyond the Sociology of Conflict (New York:Macmillan, 1977) at 15.

74. Walter Benjamin, “Task of the Translator” in Hannah Arendt, ed, Illuminations: Walter BenjaminEssays and Reflections, translated by Harry Zohn (New York: Schocken Books, 1969).

75. Butler, supra note 1 at 20 [emphasis in the original].76. Ibid at 33.77. Ibid.

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I realize that it is not possible to set up easy analogies between the for-mation of the individual and the formation, say, of state-centered politicalcultures, and I caution against the use of individual psychopathology todiagnose or even simply to read the kinds of violent formations inwhich state- and non-state-centered forms of power engage. But whenwe are speaking about the “subject” we are not always speaking aboutan individual: we are speaking about a model for agency and intelligibility,one that is very often based on notions of sovereign power.

78

Parallel or not, the melancholic, violent, state that Butler describes as the post-9/11United States is surely to some extent made up of the psyches of millions ofAmericans. Yet as Butler suggests, in drawing this cautious relation, the structureof analogy cannot present the connections between these. Perhaps to ask for a tra-jectory, real or theoretical, in this web of overlaps and associations, would be to asktoo much. Instead, Butler’s presentation of individual psychopathology, model,state, subjectivity, and sovereign power in this passage suggests TheodorAdorno’s constellation structure or, perhaps, Chaim Perelman’s notion of pres-ence.

79In both of these conceptions, association itself, presentation, is a form of

argument. Subjectivity, or subjectivation, is the model par excellence of theprocess of modelling, of exemplarity. We could take Butler’s reading, too, as amodel for vulnerability and subjectivity, one that recognizes the difficulty of recog-nition and the violence that is bound up in failures of recognition, the failures ofgrieving, of mourning, of recognizing the abject. We might think of this less asanalogy than as embodiment, as actualization.

80

Martha Fineman’s articulation of vulnerability is as concerned with the state as itis with the subject; the institutions that connect the two are able to support resiliencein vulnerable subjects but, like those subjects, the institutions and the states them-selves are also vulnerable. Fineman does not follow Butler’s analogy between statesand subjects, with the state operating like a subject, so that her formulationencourages a consideration of the relations (rather than simply similarities)between states and subjects and the connecting institutions. Fineman’s conception

78. Ibid at 44-5.79. Susan Buck-Morss, The Origin of Negative Dialectics: Theodor W Adorno, Walter Benjamin and

the Frankfurt Institute (New York: Free Press, 1977) discusses Adorno’s use of “constellation”(especially at 96-110). In a constellation, the associated elements or concepts express a realcontradiction that is not resolved—in contrast to the certainty of definition. Following Adorno,for whom the truth of concepts exists not in a universal meaning but only in their particularinstantiations, Buck-Morss does not offer a definition of “constellation” but only examples.Perelman’s notion of “presence” refers to the persuasive impact of the rhetor’s bringingsomething to the attention of the audience, outside of framing them in any actual argument.Chaim Perelman’s and Olbrechts-Tyteka’s discussion is quoted in Alan G Gross and Ray DDearin, Chaim Perelman (Albany, NY: State University of New York Press, 2003) at 135-6.

80. See Samuels, supra note 28, for a careful elaboration of Butler’s use of disability imagery to figuregender, leaving disability, necessarily, in the figurative, outside analysis.

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of the vulnerable subject steps away from identity groups and the difficult spacethey occupy, or offer, between the universal and the particular. Beyond her sugges-tion that in an economy of vulnerability and resilience, identity is a social asset,Fineman asserts that because of the “shared, universal nature of vulnerability . . .the vulnerability approach might be deemed a ‘post-identity’ analysis of whatsort of protection society owes its members.”

81Fineman explicitly separates her

“vulnerable subject” from the notion of “vulnerable populations current in feministlegal theory”:

I want to claim the term “vulnerable” for its potential in describing a uni-versal, inevitable, enduring aspect of the human condition that must be atthe heart of our concept of social and state responsibility. Vulnerabilitythus freed from its limited and negative associations is a powerful concep-tual tool with the potential to define an obligation for the state to ensure aricher and more robust guarantee of equality than is currently affordedunder the equal protection model.

82

In moving from dependency to vulnerability, Fineman’s formulation necessarilymoves different experiences and groups to the centre. Inevitable dependency suggeststo the liberal subject that she or he should identify with the situation of children, forexample, since she will always have been a child. But the force of this concept, itsradical possibility, is in the shift to where it is most counter-intuitive—in the vulner-ability of subjects whose subjectivity has never, as such, been challenged or open todebate. The assertion of vulnerability in the traditional liberal subject—the adult malewhose autonomy Fineman has argued elsewhere is a social construct (we could call itan effect of power)—brings vulnerability and autonomy, knowing, action, and subjec-tivity, together.

83In the context of disability’s long-standing identification with vul-

nerability and incapacity—with, indeed, the idea of a vulnerable population—thisconstellation, this presence, is crucial.

Fineman’s articulation of vulnerability leaves me with at least two questions.First, what is the difference between vulnerability as an experience and vulnerabilityas a conceptual tool; how might it matter? And, second, what is the relationshipbetween the universal and the particular in considering vulnerability and disability;is vulnerability universal enough? Fineman observes: “Undeniably universal,human vulnerability is also particular: it is experienced uniquely by each of usand this experience is greatly influenced by the quality and quantity of resources

81. Fineman, supra note 9 at 21.82. Ibid at 8-9.83. Fineman (ibid at 2, n 2) references some of her work on dependency and autonomy that precedes

this formulation of vulnerability. Martha Albertson Fineman, The Illusion of Equality: TheRhetoric and Reality of Divorce Reform (Chicago: University of Chicago Press, 1991); MarthaAlberston Fineman, The Autonomy Myth: A Theory of Dependency (New York: New Press, 2004).

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we possess or can command.”84

We experience vulnerability in ways that challengethe argument for universality; vulnerability may be universal, but some of us aremore vulnerable than others. In separating vulnerability from vulnerable popu-lations, does Fineman’s formulation separate disability from vulnerability or doesit, in offering vulnerability as a universal, reinforce the relationship between thetwo, with disability as one of the harms that vulnerability exposes all of us to butleaves only some of us with? Eunjung Kim has cautioned against interpretationsof this concept that leave disability as the harm to which the vulnerable subjectis, well, subject.

85But is this avoidable or to be avoided?

In writing at, or through, the disciplinary juncture of critical legal theory and dis-ability studies, is it possible, or necessary, to frame disability as something otherthan a harm? Fineman at no point associates harm and disability in her analysis,but this association is unavoidable in discussions of disability. If vulnerable subjec-tivity does include vulnerability to disability as a harm, what might it mean for dis-ability theory to follow, or to participate in, Fineman’s heuristic?

Disability studies has an uneasy relationship to the notion of harm, to the nega-tive aspects of both impairment and disability.

86Any politicized model of disability

necessarily complicates, if not counters, framings of disability as harm, but thenuances of the many positions disability studies encompasses in respect to thisare sometimes lost in the need to counter the relentless collapse of the two termsoutside disability studies in work that refuses to consider the medical and socialaspects of impairment and disability as separate, if related. It is necessary that dis-ability theory pursue, rather than avoid, this discussion.

87For disability theory to

refuse to conceptualize disability as in any sense a harm would surely meanfailing to theorize disability’s complex relationship to harm, in which the interactionbetween social factors and physical (or cognitive ones) produces disability and con-stitutes some bodily variations as impairments. Emphasizing the social factors inthis production is not only politically important but also in keeping with manypeople’s experiences of disability; but failing to recognize the role of pain,injury, and degeneration is to nullify some other experiences of disability and toleave disability theory itself vulnerable to various charges.

84. Fineman, supra note 9 at 10.85. Eunjung Kim (Comment during discussion period, Workshop on Feminist Disability Theory and

the Law, Emory University School of Law, Atlanta, GA, 11-12 December 2009) [unpublished].86. See, for example, Tobin Siebers, Disability Theory (Ann Arbor, MI: University of Michigan Press,

2008).87. For an example of the debate around disability as harm, see John Harris, “One Principle and Three

Fallacies of Disability Studies,” Proceedings of the 2000-2001 Equality and Disability Symposium(2001) 27 Journal of Medical Ethics 383, where John Harris writes that his conception ofdisability is the “harmed condition conception of disability.” Although he agrees with hiscritics that people with disabilities do not usually have lives that are not worth living, he insiststhat “[d]isabilities always involve a ‘harmed condition’ of the individual and that being thecase it is never wrong to prevent the births of people with disabilities and often right so to do”(at 387).

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Writing in a different context, Ian/Janet Halley argues for “decisionism”88

andpresents the risks of deciding, of moving from ethics to politics: “We might haveto decide without knowing that our understanding of the situation is right,without knowing how our decision will play out.”

89In Halley’s analysis, to

refuse the radical possibility of theory, a possibility that following any existingmodel—even an ethical one—may preclude, is to stop short of deciding, whichis, perhaps, the only action possible for theory. And yet, the radical possibility ofdisability theory is not to set its ethical demand aside—not, in Halley’s terms, to“take a break,” as she suggests queer theory might from the constraints of a nar-rowly framed feminism—but, rather, to set it into context, into the full context ofdisability’s interdisciplinarity—one that, even in this discussion, includes disabilitystudies, feminist theory, feminist ethics, medical ethics, and feminist and queer legaltheory—and this is a partial list.

90

Following Fineman’s heuristic, then, may open new possibilities for conceptua-lizing disability in relation to vulnerability and to subjectivity. Certainly, theexample of disability operates as a forceful presentation of the possibility presentedby Fineman’s centring of vulnerable subjectivity in the context of critical legaltheory. In the (loosely) converse formulation, considering what Fineman’s notionof vulnerable subjectivity can offer disability theory means turning to the particu-larity of disability and vulnerable embodiment, vulnerable subjectivity.

Sherene Razack emphasizes the importance of such specificity in considering theimpact of feminist law reform, arguing that it cannot meet the needs of women withdisabilities unless, as she puts it, “we” non-disabled feminists critically examine theableist gaze that sees the disabled as “icons of pity.”

91Razack suggests:

[A] politics of rescue prevails when women with disabilities are seen asdoubly or triply vulnerable, as “icons of pity.” Pity is the emotional responseto vulnerability and being saved, the only outcome. How do we move frompity to respect, where we acknowledge our complicity in oppressing othersand consider how to take responsibility for the oppressive systems in whichwe as women are differently and hierarchically placed?

92

But, as Razack’s analysis of case law shows, pity is not the only response to vul-nerability. Violence is another response to vulnerability. As she puts it,

88. Janet Halley, writing sub nomine Ian Halley, “Queer Theory by Men” in Martha AlbertsonFineman, Jack E Jackson, and Adam P Romero, eds, Feminist and Queer Legal Theory:Intimate Encounters, Uncomfortable Conversations (Farnham, UK: Ashgate, 2009) 9 at 25(citing Duncan Kennedy, “A Semiotics of Critique” (2001) 22 Cardozo Law Review 1147).

89. Halley, supra note 88 at 26.90. Ibid at 23.91. Sherene H Razack, Looking White People in the Eye: Gender, Race, and Culture in Courtrooms

and Classrooms (Toronto: University of Toronto Press, 1998) at 130.92. Ibid at 132.

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“[w]omen with developmental disabilities have been constructed almost universallyas vulnerable, a social construction most often used to explain tremendous socialand sexual violence in their lives.”

93This emphasis on vulnerability—increased

rather than different vulnerability—has the dangerous effect of taking the focusaway from “those who actively and aggressively set out to sexually violate and,again [from asking about] the sources of the violence itself.”

94“At its core,”

Razack writes, “the argument of greater vulnerability invites a tautology: womenfrom historically disadvantaged groups are more vulnerable because they aremore vulnerable.”

95

Razack asserts that “[h]ierarchies among women are maintained in law through anumber of universalizing or homogenizing tropes and explanatory frameworks.”

96

How “we” argue—and how people argue on “our” behalf—makes a difference.Razack argues that the emphasis on consent and force in rape law make it difficultto draw attention to the social conditions that construct having an intellectual dis-ability as a vulnerable situation. Razack ends with the suggestion that “the storiesof women with disabilities must be told, not as stories of vulnerability, but asstories of injustice.”

97How do we translate a story of vulnerability into a story of

injustice? The “we” is important in this translation. The identification with, and rec-ognition of, difference that is a necessary part of disability studies take us some waytowards accountability, some way towards respect, but this change of “we”—fromthe able-bodied feminist scholar to the uneasy subject of disability studies—shiftsthe original discourse, making possible a broader accountability, at least in theacademy, than Razack seems to imagine. Shifting the subject position in thisproject, imagining a disabled subject position, is part of a shift from ethics topolitics.

More Vulnerable Subjects?

This accountability, this centring of a reader informed by disability studiesand disability politics, is an emerging achievement of the examples and perform-ances of disability studies. Consider, then, a few more examples of the particularityof disability’s relationship to vulnerability, in which supposedly universalist notionsof vulnerability are inverted. Couser warns of the danger of vulnerability framed asinvulnerability, pointing out that some people’s disabilities, their lack of awareness,may be represented as protecting them from the harm of a betrayal—from “psychicpain or harm to reputation”

98—which would otherwise be considered unethical. He

93. Ibid at 136 [emphasis in the original].94. Ibid at 137.95. Ibid at 138.96. Ibid at 132.97. Ibid at 156.98. Couser, supra note 53 at 23.

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observes that “if subjects—Iris Murdoch, for example—are incapable of reading thetexts their cooperation or collaboration makes possible, they may be consideredbeyond being harmed by them. Ironically, then, the assumption of their invulner-ability to harm may make them all the more prone to abuse.”

99This structure of

vulnerability as invulnerability, its refusal of the analysis that a greater accountabil-ity would demand, echoes Razack’s tautology: “[W]omen from historically disad-vantaged groups are more vulnerable because they are more vulnerable.”

100

Couser’s example of the suicide-survivor note reminds us of the impact that therepresentation of vulnerability as invulnerability—of suicide as a rational, auton-omous decision—can have in the context of disability. The survivor, DeLury,frames his account in a way that suggests the author’s familiarity with, and manipu-lation of, the conventions of disability life writing. As Couser observes, “[DeLury]claims that to blame him for Myrna’s suicide—to argue that he unduly influencedher decision—is to cast her in the role of victim and therefore to dishonour hermemory . . . to the extent that her suicide appears rational—even heroic—his assist-ance seems blameless, even admirable.”

101

Paul Longmore presents this inversion of the discourse of autonomy in his analy-sis of Larry McAfee’s 1989 petition for doctor-assisted suicide. McAfee was a ven-tilator-using, spinal cord-injured quadriplegic who was forced to live in a series ofnursing homes and even, for eight months, a hospital intensive care unit, becausethe State of Georgia refused to fund independent living. McAfee said: “You’relooked upon as a second-rate citizen . . . People say, ‘You’re using my taxes . . .You should hurry up and leave.’”

102In Longmore’s reading, the resentment and

the institutionalized obstacles that McAfee encounters in trying to live his lifestand in stark contrast to the admiration he receives for his expressed wish to die:“McAfee’s attorney asserted that ‘he’s made a rational decision,’” the judge“ruling in favor of McAfee’s request for doctor-assisted suicide expressed admira-tion for his ‘courage,’” while an expert in medical ethics “declared to the court: ‘Weacknowledge an individual’s right to autonomy, self-determination and liberty aspart of our ethical vision in this country.’”

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99. Ibid. In Couser’s examples, vulnerability not only shifts and unsettles but also, too often,expands and extends itself. Iris Murdoch, for example, begins as an example of the liberalsubject as much as of universal vulnerability. As a writer and academic, she was intelligent,capable, productive, and—in Fineman’s terms—open to harm. When harm befell her, as it sofamously did, she was open to further harm not only because she was vulnerable in a moretraditional sense—she had Alzheimer’s, she could not make her own decisions, and she couldnot work—but also because she was married to—and dependent upon—a writer, JohnBayley, who wanted to tell her story.

100. Razack, supra note 91 at 138.101. Couser, supra note 53 at 157.102. Paul Longmore, “Essay on Terminal Illness,” Electric Edge (January/February 1997), online:

Ragged Edge Online ,http://www.raggededgemagazine.com/archive/p13story.htm..103. Ibid.

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Longmore’s framing of this debate with his own experience as a history pro-fessor who also uses a ventilator and extensive assistant services because of paraly-sis (his the result of childhood polio) emphasizes the political over the ethical byshifting the subject position. Ethics demands that an external “we” respond to the“other’s” need for autonomy, but a political framing of this event centresMcAfee’s experience, locating it in an experience shared by other disabledpeople and in a social and economic context. Longmore makes an identificationwith McAfee, stating that he himself was unable to work as a professor withoutthe funded independent living supports that his community’s advocacy (and hisown) put in place in California in 1988. As he notes, he would have been unableto work in Georgia, which did not have such services.

104Here, Longmore asserts

his own vulnerability and autonomy together as inextricable from his disabilityexperience.

In the context of these examples, I am cautious of Fineman’s “setting aside” thehistory of “vulnerability.” “Vulnerability,” like “disability,” is inextricable bothfrom etymology and from new formulations, new claims. The tactical assertionthat vulnerability can be removed from its context seems almost counter-disciplin-ary, with vulnerability, like disability, continuing to operate in precisely the contextswith which we might like to dispense. Perhaps this is less a refusal of discursiveforce in general than a recognition of the discursive force of legal theory—andof law—in particular. Asserting the universality of vulnerability does not accom-plish it—not even at the level of theory—but it makes it imaginable.In Perelman’s terms, it brings it into presence.

Bergoffen’s exploration of the universal and the particular in the decision thatcentres the vulnerability of the female body leaves me wanting a presence inButler’s own articulation of universal vulnerability. This is not a call for a trans-lation of Butler’s own examples into the unrecognized lives and ungrievabledeaths of disabled people. Instead, I call for a recognition that disability hauntssuch analyses—the analyses that leave it, us, out of discussions of human-nessand of the violence with which humanity’s border is defended. An understandingof vulnerability must recognize both its universal character and its particularity,its specific operation in the present moment, in the examples that experienceoffers. At the same time, the example of vulnerability offers a demonstration ofsome of the complications that make it difficult to refer to “feminist disabilitystudies” as if “feminist” and “disability” might line up effortlessly together, eachmaking sense in the terms of the other.

In my own reading, at least, Fineman’s heuristic of the vulnerable subject andBergoffen’s analysis of the gendered universal offer something to a disabilitytheory transposed from the immediate—and urgent—concerns of its own context,

104. For a full discussion of the constraints and services that alternately prevented and made possibleLongmore’s own career, see Paul K Longmore, Why I Burned My Book and Other Essays onDisability (Philadelphia, PA: Temple University Press, 2003).

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to a more broadly interdisciplinary discourse. In this discourse, disability theory isin conversation with feminist legal theory and feminist philosophy, but this is a con-versation in which we are all prepared to take risks, to make decisions. This trans-position offers a constellation of subjectivity and subjectivation, vulnerability andvulnerable embodiment, harm, and identity—and disability. This constellation,like Butler’s difficult presentation of individual and state psychopathology, offersno clear causal relationships, no persuasive arguments; it offers only presence.But in centring disabled subjectivity, in making it imaginable—if not, perhaps,explaining it—this constellation moves from ethics to politics. Is this an extraordi-nary demand, the extraordinary demand of disability—or is it what all of us shouldask of theory?

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