Imagining the Subaltern: Mani, Nussbaum and Personal Agency

Mani's *Contentious Traditions* reveals that the debates within the British colonial government in India regarding the practice of *sati*, or widow burning, framed the issue within the context of British tolerance for local religious custom. As a consequence, government action leading up to an outright ban on the practice in 1829 concerned itself primarily with locating and accomodating a "scripturally sanctioned" and voluntary practice of ritual suicide, while outlawing practices such as coercion that were seen as contrary to, if not prohibited by, what a small group of high-caste Brahmin clerics determined constituted Hindu scripture. Given the hegemonic power ascribed to indigenous religion by the colonial authorities, as well as the legal emphasis on indentifying those circumstances in which the widow's free-will might be manipulated or overwhelmed, within official discourse "[t]he widow nowhere appears as a subject-in-action, negotiating, capitulating, accomodating, resisting. Instead, she is cast as eternal victim: either a pathetically beaten down or coerced creature or a heroic person, selflessly entering the raging flames unmindful of pain. What distinguishes the two is the question of her consent." (Mani 31). The widow is either at the mercy of her relatives and local clerics, or she is submitting to the compulsion of her faith; never is her decision concepualized as fully rationalized, and freely negotiated. One particularly interesting feature of the legal and political discussion of *sati* is the way in which, for nearly forty years, it neatly sidestepped the very difficult moral question of whether a relgious or cultural institution that requires a woman to sacrifice herself on the flames of her husband's funeral pyre, voluntarily or not, should be tolerated at all.

I would like to suggest that, within legal discourse in particular, the imagination of a subaltern--which I would identify broadly as a rhetorically constructed subjectivity that has been uniquely deprived of choice or agency with regard to a particular circumstance--such as the victimized widow in *sati* discourse, is often used to deflect legal discussions away from thorny ethical issues onto either purely legal or at least more clearly defined moral foundations. My choice of the familiar term is deliberate, because the language of legal discourse is quite often conflated with the language of advocacy, that is a language that speaks for an Other that lacks the political power or technical skill to enter into the debate him- or herself. In making this argument, I will address three areas where I believe we may observe this process in action, in the official debates surrounding the death penalty, gay and lesbian marriage, and abortion. By relating these three areas of cultural discourse on a structural level with one another as well as with the debate over *sati* as characterized by Mani, I do not mean in any way to imply a moral or social equivalence between Hindu widows, death row inmates, homosexuals and pregnant women. Rather, I want to explore how the language of agency, or lack thereof, seems to inflect similarly the discussions on each of these widely divergent social questions. In each the subaltern seems to stand in for and permit the discursive avoidance of an unspoken, and perhaps unspeakable, disruptive rhetorical subject, whose unsaid presence nonetheless continues to haunt the discourse.

Of the three subjects that I have chosen for discussion, the construction of the rhetorical subaltern in the legal and political discourse concerning the death penalty comes closest to that of the widow in the widow-burning debate. Like *sati* the state-sanctioned execution of criminals is viewed by many governments and societies as a barbaric and inhumane practice. Also, similar to *sati*, execution as a form of retribution or justice arguably receives scriptural sanction in the Judeo-Christian religious tradition that still strongly influences American governmental and social institutions. The two practices are by no means morally equivalent, yet both have been historically condemned as human rights abuses. When discussing the death penalty, the most effective legal arguments against it have centered around the figure of the wrongly convicted innocent, the victim of an imperfect and not infallible criminal justice system who, like the drugged widow forced to burn, shifts the debate to the question of flaws within the system, away from an examination of the morality of the institution itself. By focusing on the problem of what we should do about those who are convicted by mistake, we can avoid altogether the question of whether we are justified in condemning to death those who are not. And hovering behind the figures of the wrongly accused are the spectres of those who, although they may be few and far between, would rationally weigh the consequences and knowingly choose death over life imprinsonment. Some may call them sociopaths; others may call them martyrs. Even if they do not exist outside of the discourse itself, as concepts they pose such a threat that anti-death penalty advocates have fashioned a discursive vocabulary that effectively erases them. In doing so, however, they postpone a confrontation with the central issue in this debate, whether death as a criminal penalty is ever justified.

Shifing from an examination of how the figure of the rhetorical subaltern operates within a discourse that challenges the existence of a particular governmental or religious institution (e.g. *sati* or the death penalty), the next part of my discussion moves to a consideration of how the rhetorical subaltern figures within a discourse arguing in favor of the acceptance or expansion of an institution or practice. We can find such an instance in the current debate in this country about gay and lesbian marriage. For the most part, those who advocate in favor of allowing marriage or civil unions between same-sex partners hold firmly to the belief that homosexuality is a question of biology, as opposed to personal choice. Thus, in a certain sense, homosexuals are rhetorically figured as the victims of genetic destiny, rather than as subjects exercising personal agency. Without taking a position on the question of the biology and/or sociology of homosexuality, I think one may nevertheless observe how reliance on biology permits the advocate to argue that gay and lesbian unions should be permitted without appearing to sanction or approve of the so-called homosexual "lifestyle." Though this may be an effective rhetorical strategy in some situations, by refusing to confront the opponents of such unions on the issue of whether, if sexuality is a choice, the government should engage in a program of compulsory heterosexuality, it is a strategy that implicitly valorizes the (perhaps wholly theoretical) "choice" of heterosexuality. In this case, reliance upon the rhetorical subaltern allows proponents of same-sex marriage to avoid naming or addressing the possibility of an agentive sexuality that challenges traditional categories and resists accepted classifications. Regardless of whether or not sexuality is biologically determined, on a basic level it does involve the excercise of personal choice, and this debate necessarily involves the question of whether the government should be in the busincess of influencing our choices regarding sexual and life-partners.

Finally, I would like to focus upon a debate in which both sides rely on a rhetorically constructed subaltern figure. Opponents of abortion rights use the powerful figure of the unborn child in order to avoid talking about the figure of the pregnant woman. In pro-life discourse, the woman is erased. She becomes a mere vessel for the life of the *innocent* child; the implication being, of course, that the pregnant mother is *guilty*. She has engaged in sexual intercourse, as as a result, we get a rhetoric of pregnancy as punishment or consequence. Yet, abortion rights advocates also rely on a rhetorical subaltern, the woman who has become pregnant as a result of rape, incest, or failed birth control. This is the woman pro-choice advocates clearly feel comfortable protecting; she is the woman who allows them to avoid discussing the woman who uses abortion as birth control, or the woman who uses it as a means to select the sex of her children. Therefore, on the pro-choice side, too, we are left with the idea of pregnancy as consequence, and in a debate that is ostensibly about women's reproductive freedom, the language of subjective female agency is curiously under-developed, and occasionally completely absent.

In theorizing the idea of the rhetorical subaltern, I am hesitant to conclude that imagining the subaltern is an ineffective discursive strategy. The suspension of the death penalty in Illinois, judicial decisions striking down obstacles to same sex unions, and *Roe v. Wade* are all, at least in part, the result of successful deployment of the rhetorical subaltern. Legal theorists from Stanley Fish to Cass Sunstein have argued that the law is by its very nature a conservative institution, the stability of which depends upon its resistance to sweeping change through the use of highly formalized discursive strategies. Nonetheless, I think we can learn a great deal from examining what must remain unsaid in order for legal discourse to be effective. Because what remains unsaid, the thing that legal discourse talks around, might actually be the point, the reason we have a debate in the first place. Nussbaum's cultural universals have received a great deal of criticism, but I think perhaps, Nussbaum may simply be naming some of those issues that are really at the heart of many feminist debates, naming them and taking a stand on how we should decide them. In legal discourse, it seems to me that imagining the rhetorical subaltern is useful to the extent that it allows us to critique and reform institutions from the inside by imagining those who are victimized and silenced by them. In the end, however, the debate may finally come to a point at which we have to judge the value of the institution itself, and in that moment, imagining victims may be less productive than imagining ourselves as agents empowered to effect social change. I also think that, by looking at legal discourse critically, we can see where it falls short, and possibly identify those questions and concerns that it cannot address effectively because it does not yet have a vocabulary to contain them. Finding those moments of deflection, where legal discourse refuses to center on the issue at hand may provide some insight into what additional social concerns, beyond those explicitly stated, might be implicated in a particular legal decision or argument.