The Program on Law and Social Thought at Harvard Law School
and Women's Studies at Duke University,
in collaboration with
the Northeastern University School of Law1

The Law of Dignity / The Politics of Shame: An Inquiry into the State of Our Art on Sex, Sexuality, Gender and the Family
Fri-Sat, November 19-20, 2004

Preliminary Program and Prospectus

Herewith a Preliminary Program, along with the conference Prospectus. Please see the other attachments for a Registration form and a list of area hotels. A conference Reader has been sent out to all registrants for whom we had addresses; if you were not in that circulation, please pick up your Reader at the conference itself, or from Terry Cyr (Hauser 406). If you have questions, let Janet Halley, Libby Adler, Robyn Wiegman or Terry Cyr know: jhalley@law.harvard.edu, l.adler@neu.edu, rwiegman@duke.edu, tcyr@law.harvard.edu.

Preliminary Program
Friday, November 19

3-5 pm Workshop
The Powers of Dignity
Convenor: Brenda Cossman
HLS, Pound 335

Janet Halley, Introduction
Maria Rosaria Marella, “The NON Subversive Function of European Private Law: The Case of Harmonization of Family Law”
Kendall Thomas, “Our Brown?: Lawrence and the ‘Interest Divervence’ Dilemma”
Martha McCluskey, “Dignity, Disability, Dependence and Difference”
Prabha Kotiswaran, ‘Fallen Angels’: The Many Lives of Dignity Amongst Indian Sex Workers”
Rashmi Dyal-Chand, “Dignity as Collateral”
Jeannie Suk, “Battered Windows: Crime at Home”

6-8 pm Seminar
Screening of “Secretary”
HLS, Hauser 104; light snacks will be served.

8-10 pm Seminar, continued ...
HLS, Hauser 105; dinner will be served
Convenor: Janet Halley

Saturday, November 20

8:30 am Coffee will be served in Pound 334

9-12 am Workshop
The Productivities and Deployments of Shame
Convenor: Janet Halley

Legal Deployments of Shame
Brenda Cossman: “Obscenity, Disgust, Hip Hop and Extreme Sex"
Kate Sutherland: “Teenagers, Freak Dancing, School Regulation and Self-Regulation”
Lucy Williams, “Welfare, Subjectivity and Distribution”
Aeyal Gross, “Gender Outlaw Meets the Law”
Kevin Haynes, “Hotel America; or, Why We Depend on The Law and Politics of Strangers”
Aaron Belkin, “Stoicism, Shame and Male/Male Violence in the Military”
David Kennedy, “Military Genders”

The Politics of Shame
Andy Parker, “Throwing Voice”
Bernard Harcourt, “Reflecting on Some Queer Politics”
Robyn Wiegman, “Towards Something”
Noa Ben Asher, “The Legal Management of Intersexuality”
Richard Rambuss, “Male Masculinity”
Michael Warner, “Pleasures and Dangers of Shame”

12-2 pm Roundtable
The Poetics of Shame
Launched by: Dan Danielsen, Andrew Parker, Jules Owen, Hani Sayed, Robyn Wiegman
This will be an opportunity for everyone to participate in a general discussion of the selections from The Scarlet Letter and Portnoy’s Complaint included in the Reader.
HLS, John Chipman Grey Room, Pound 213
Lunch will be served

2:30-4:30 Workshop
pm Rationality, Irrationality and the Shame of Critique
Convenor: Libby Adler
HLS, Pound 335

Libby Adler, “Dignity, Shame and the Specter of Fascism”
Tracy Higgins, “Rationality and the Regulatory Impulse”
Philomila Tsoukala, “Shame and the Nation, Shaming the Nation”
Nathaniel Berman, “Abjection: Opposition from Within in the Age of Empire”
Duncan Kennedy, “The Shames in Critique”

4:30-5 pm Plenary Discussion
Future Directions
HLS, Pound 335

7-10:30 PARTY!
Chez Janet; a buffet dinner will be served.

Prospectus

This conference begins from the hypothesis that legal regimes have profound effects on human subjectivity: that our sense of ourselves as human, as humans with affective, psychic, erotic, spiritual lives, is produced in part by the legal orders in whose shadows we do all the things that we do. We will be thinking about the reach of legal systems from the most visible and public institutional forms to the most intimate, never-spoken moments of psychic interiority, the most delicate calibrations of the self. We will hold up for examination a particular polarity dividing human personhood, one that seems to be gaining new signification in various legal orders at the moment – dignity and shame. This is but an example of our broader concern with the ways in which legal theory and the study of particular legal regimes can help us to see legal thought and practice as a human science.

Dignity and shame sometimes seem like opposites: if you have one, you won’t have the other. But there is no necessity to this, and each term can be taken through a myriad variations that, subtly or strikingly, change its social circulation and legal possibilities: dignity, honor, pride, sanctity, the power of the “public servant”; shame, humiliation, loss of face, degradation, humility, submission, deference, abjection. We do discursive work, and legal work, in the web of meanings enabled by all these terms. What was a shameful disability can be transformed, through the institutionalization of disability rights, into a “different ability,” a shift with profound implications for selfhood and for the antidiscrimination regime. What is at stake when the action that is understood as a crime of honor in one legal regime is managed as a crime of passion in another? What happens when the gap between these different understandings begins to close, as it might, for instance, in the globalization of one or the other mode of legal thought?
Dignity is on the march in rights discourse: the right to dignity is gathering new specificity. In these new articulations an immemorial paradox of dignity is being repeated. In that paradox, dignity can indicate an intrinsic attribute of “the human” and it can be an exceptional trait: virtue. Is this an outright contradiction, or do the new rights to dignity mediate these quite different senses of the term in ways that we could call “regulatory”? Do “rights to dignity” say: “We are all dignified, and so we are all entitled to some social good” or “If you are virtuous you are dignified; and you have rights only if you are both”? Or does the instability arising from the ever-present possibility that rights to dignity will toggle between these forms constitute part of their power? What social goods have been distributed in a dignity regime, and what social goods have been recalcitrant to the call of dignity? If dignity is about virtue even some of the time, dignity regimes will surely distribute shame – shame in the form of social derogation, and shame in the form of excruciatingly acrid self-regard. Would we understand the resulting regulatory dynamic better if we: thought of it as spiritual order and read Augustine; thought of it as a humanistic moral project and read Kant; thought of it as a status regime and read Weber; thought of it as a psychic system and read Freud; thought of it as a discourse producing the human as its effect and read Foucault?

Dignity and shame are also deeply political. Black Pride; Gay Pride; Queer Nation. Social movement politics advocating change for subordinated groups manage shame in a highly equivocal way: they denounce the shame of subordination as an invidious fiction, while ratifying that it is a sustained, highly intimate, harm. Did legal regimes of various kinds help to create the need for this contradictory practice; and how were they in turn shaped by it? Political struggle understood as war – the relation of enemy to enemy – is waged with dignity, won with pride and lost in ritualized shame. The conduct of conflict and its resolution are (let’s hypothesize) processes in which legal actors manage shame and dignity. From the fall of Baghdad to the outpouring of national shame in the Unitedstatesean response to the photos issuing from Abu Graeb – from the denunciatory ambitions of war crimes tribunals to the conciliatory ones of Truth and Reconciliation Tribunals, shame is under constant management, constant political deployment. Cui bono?

Dignity as a right, or the justifying principle for a right, has new constitutional bite in Germany, South Africa, the United States, the European Union and wherever a robust human rights vocabulary is spoken. We are hoping to learn more about its rapid ascendency in widely different legal regimes: how does it travel? What elements of existing legal regimes does it strengthen; what elements does it weaken? The contingency of dignity and the calamity of shame are managed by many disparate parts of any legal system: criminal punishment, reputational and emotional-distress torts, informational privacy regimes, zero-tolerance domestic violence regimes, the geographies and archetectonics of privacy, welfare-to-work schemes – all of these elements of the legal system, and more, decide again and again what human dignity (for all) requires, and who gets to have it.

Progressive thinkers and activists, arguing for “inclusiveness,” have often attributed dignity to citizenship, membership and belonging. This kind of argument takes the risk of playing with a double-edged sword: after all, the idea of national character and racial dignity has had breathtaking social effects over the course of the last century, not all of them good. What does this legacy mean for current deployments of dignity? A legal realist might remind progressive thought that citizenship can be understood not only as a treasured form of human membership but as a regime for the geographical distribution of bodies, in which the very good of citizenship requires that there also be its opposites – the alien, the refugee, and the stateless person. Does the dignity of the former allocate something like shame to the latter? Query whether the left-multicultural celebration of “inclusiveness” has a dark side.

Dignity and shame cross sex, sexuality, gender and the family in extremely noticeable ways with consequences for the legal shape of a wide array of institutions. We can ask whether marriage has been built into social life differently if the prevailing idea about sexuality is that it is shameful than it is when sex is imagined as dignified, or when particular kinds of sex are deemed to be dignified at the expense of others. The shame attached to some intimacies, some genders, might actually increase their social value and vitalize the legal forms that grow around them. The allocation of some genders, some sexualities to the market and others to the family might be importantly indexed to the status implications of shame and dignity (and their many correlates). We are particularly interested in the shame associated with embodiment and with femininity: how does the practice of “not speaking” one’s “mother tongue,” or of living down the body’s involuntary life (the unwilling blush, the seeming fixity of one’s place and date of birth, the idea that men and women must be separated at certain bodily moments) ramify in social and legal life? Are these shames always detrimental to those who feel them? How do the social and legal orders of dignity organize and intensify them?

And finally, liberalism seems to carry two contradictory ideas about the relationship between rationality and dignity. On one hand human reason is the reason for and the sublime mode of human dignity; on the other certain intrinsic or fundamental values – these are the values of human dignity – cannot be deduced with reason and must be posited a priori, must be protected as fundamental. In the first mode, law cannot justify its power unless it can wield power rationally; in the second, law must respect the intrinsic value – the irrational, a priori value – of certain human goods and withhold them from the domains of rationality (the market, the agora) which are deemed unsuited to their dignity. Shame is never far from the surface of this paradox in liberalism: for power to show its face directly is for it to undergo the disgrace of illegitimacy; and for law to yield certain human goods up to market rationality, political allocation or critical deconstruction is to subject them to an absolute degradation. Can we come to a better understanding of the ways in which dignity and shame inflect the dangerously supplementary relation of reason and unreason, knowingness and not-knowing, “merit” and “demerit,” assertion and critique, in our continuing struggle to articulate the terms of legal thought?