Mariana Valverde

That law is patriarchal has by now been amply demonstrated. The implications of this for thinking about ethics and justice are by no means clear, however. This paper canvasses some of the literature on sexual difference and justice, arguing that the evocation of the repressed femininity of law found in the work of Luce Irigaray and psychoanalytic legal theorists was and remains important for critical approaches to law and justice, but that it is now time to go beyond frameworks that re-theorize the gender binary. All traditional theories of justice have sought justice somewhere in the >depths= of Being, under >the surface=of life and/or law, and the depth/surface binary has often been aligned with the gender binary. Masculinist approaches align femininity with superficiality, while much feminist thought has tended to assume that femininity - as the repressed of law - is >deeper= and hence truer. Taking our cue from Deleuze, Foucault, and queer studies, it is argued that it is time to deconstruct the depth/surface binary as we think about ethical obligation and justice, a task which also involves deconstructing the gender binary and acknowledging that there is more than one >sexual difference=. The cultivation of an ironic sense of the simultaneous necessity and impossibility of >deep= justice (in particular, gender justice) may be facilitated, it is argued here, through a consideration of two figures. The first is the tragic figure of Antigone, traditionally regarded as the embodiment of deep feminine justice in conflict with superficial male law, but presented here as a queer persona in a play in which most of the characters are gender-bent. The second is an Old Woman that fleetingly appears in some of Nietzsche=s work, an old woman identified with skepticism, a focus on appearances, and the rejection of hermeneutics. Without imputing any feminist motives to Nietzsche, it is fruitful to read the skeptical Old Woman as inspiring us to think about justice through the ironic play of gender performance and inscription.

LIFE AND DEATH QUESTIONS: GENDER, JUSTICE, AND IRONY

That law is patriarchal and anti-woman has by now been amply demonstrated. And yet, the implications that this important insight has for the way we think about and through justice are by no means clear. One popular strategy has been to conclude that if law is a patriarchal mechanisms of masculine privilege, then justice - which is always evoked but also denied by law (Derrida 1992) - must be somehow feminine. Numerous writers have developed ways of using the established gender dichotomy to articulate the relation between law and justice, but for our purposes it is sufficient to briefly sketch two of the most popular non-sexist ways of linking justice to femininity and (inadequate, unjust) law to masculinity. The first kind of approach is exemplified by the >ethic of care= philosophy of justice. From this perspective, positive law is identified with abstract equality, formalism, rationalistic logic, and individualism - and this set of values is contrasted to the >feminine= values/practices of connectedness and relatedness. Robin West is a leading American legal philosopher promoting an >ethic of care= approach to the basic questions about justice (West 1988). At a more applied level, one also finds much legal literature that draws on Carol Gilligan=s well-known studies of ethical development among girls to promote non-antagonistic and non-individualist approaches to justice, such as alternative dispute resolution (Gilligan 1982, Menkel-Meadow 1985).

The ethic of care perspective has been developed by many people in both philosophical and popular writings about gender and justice (see for example the contributions in Held, 1995), in such a way as to usefully highlight the peculiarly masculine shape of much philosophical and legal reasoning about justice. The thinking about justice that flows out of an >ethic of care= perspective, however, reproduces one of the most basic features of both positive law and mainstream philosophies of justice: that is, the binary oppositions of reason vs. passion, work vs. pleasure, care vs. hedonism. For all that one can grant to the ethic of care advocates that changing a baby=s diapers or looking after the sick and elderly are indeed ethically significant activities, there is no reason to proceed as if justice and femininity were both antithetical to desire and pleasure.

Desire and pleasure, largely ignored within the ethic of care literature, have been at the heart of psychoanalytic reflections about justice. If the ethic of care tends to privilege >a different voice=, feminist psychoanalytic thinkers= main interest is in the exploration of a different desire. Among these, Luce Irigaray stands out as a philosopher of the ethical implications of sexual difference who has explicitly and influentially taken up a feminist standpoint (in contrast to Julia Kristeva and Jacques Derrida, who have certainly contributed greatly to feminist ethical thought but from a position largely outside feminism). For Irigaray, there is no distinct sphere of >gender justice= as distinct from other kinds or dimensions of justice. For her, to think about ethics is to think about sexual difference, and viceversa. The title of her main work on this topic, Ethique de la difference sexuelle (Irigaray 1984), is therefore redundant. This is not because she believes that women are always >the Other= of ethics and nothing but the other, a caricature of her position that is common in American feminism, but rather because for her the key question for ethical thought today is precisely the question of feminine ethical agency. As Elizabeth Grosz succinctly explains:

Like Derrida, Irigaray inherits from Emmanuel Levinas the focus on the question of alterity, the difficulty or indeed impossibility of ever doing justice to that other to whom we nevertheless owe a constant ethical obligation. And like Derrida, Irigaray=s work, however radical in gender terms, is nevertheless continuous with mainstream European ethics in emphasizing I-thou interpersonal relations. As I have argued elsewhere [LSI], Levinas= work, like philosophical ethics generally, tends to privilege the realm of interpersonal conduct to the detriment of structural and historical relations - imperialism, colonialism, and so forth. Especially in the light of the recrudescence in the 1990s of racial, religious and other group-based forms of injustice, it is worth asking whether the emphasis on the I and thou that is typical of philosophical discourse ends up making Irigaray focus far too much on interpersonal relations - especially heterosexual relations - to the detriment of larger social relations which can also be bearers of justice. Postcolonial studies and critical race theory suggest to feminists of all races that an exclusive focus on sexual difference will produce work that is inescapably ethnocentric; while queer theory, unknown when Irigaray was doing the bulk of her writing, has challenged the basic binaries of all psychoanalytic thought, including feminist psychoanalysis. The first page of Ethique de la difference sexuelle takes Heidegger=s philosophical assumption that Aour@ time has only one question to pose itself and gives it a feminist twist: sexual difference, we are told, is Athe@ question of Aour@ time. But, fifteen years after Irigaray wrote this, it has become very difficult, if not impossible, for any feminist to write as if Awe@ all know who Awe@ are, and as if there were only one sexual difference.

One can now begin to think about sexuality in non-dimorphic terms in ways that were perhaps unimaginable in the 1970s. First it was male and female; then, gay and straight; then, questions arose about the complex connections between racialized identities and sexual desire. Now, asking about sexuality, ethics, and justice necessarily involves a certain responsibility, first, to those whose sexual difference is constructed largely in racial rather than gendered terms, and secondly, to those minorities who, either playfully or by force of law, mark neither >M= nor >F= on government forms, but rather AOther@. Those newer Others are, more than >women=, the bodies upon whom sexual alterity is being refigured in our time. The more complex forms of sexual difference that have become visible in recent years deserve the same careful thought devoted in the 1970s and 1980s to what was then blithely called >sexual difference= - as if there were only one.

How can we think seriously about gender and justice while challenging the 1980s assumption that >sexual difference= can be deployed to explain or even to describe something as complex as the relation between law and justice? As an experiment in addressing a question that is unlikely to have a single answer, this essay has no particular telos. It is defined only by its beginning, and this beginning - like so many others - can only be characterized negatively, as a desire to avoid two twin >evils=. On the one hand, I wish to avoid the gliness of postmodern postfeminism - the sort of attitude that says that we need not take Irigaray=s question about ethics and difference seriously because gender no longer matters since we are all equal now and equally postfeminist and the only thing to do is to assume a world-weary ironic stance. As against such postmodern stances, one can cite Nietzsche=s argument that irony, far from being a clever invention of cynical intellectuals, is a constitutive dimension of the human world. Nietzsche saw the irony cultivated by fin-de-siècle nihilists, the postmodern intellectuals of his time, as redundant and faintly ridiculous. It is silly to pride oneself on taking up an ironic distance in respect of truth claims: the inevitable and irremediable lack of fit between the self and claims about the self, the non-identity theorized first by Hegel and later by Lacan, is not a dandyish attitude: it is a fundamental process making up the only world we can know, the human world. AEverything human deserves to be viewed ironically insofar as its origin is concened: that is why irony is so superflous in the world.@ (Nietzsche, 1986, 120). The ironic practices found later in this paper, therefore, are distinguishable from postmodern cynicism.

In avoiding the subjective stance of much postmodern writing, I do not wish to fall into the opposite tendency or habit, namely the philosophers= tendency to make either ontological, epistemological, or moral claims that are uttered as if there were a place up above the fray from which to make them. These days >hard= ontological claims about justice are rare, but many thinkers are still pursuing the quest for less >hard= but nevertheless objective and solid ethical foundations in the formal qualities of the social interaction that is supposed to generate justice (cf. the Habermasian tradition) or in the >subjugated knowledges= said to arise directly from the experience of oppressed groups.

It is not my intention here to review or evaluate the perspectives just enumerated - postmodernism, Habermasian pragmatism, identity politics. I prefer to engage in an attempt to think about justice not by first choosing a particular epistemology (standpoint theory, Habermasian pragmatism, etc) but by seeing how far we can get if we assume for the moment that epistemology as a whole - not just rationalism or objectivism or positivism or standpoint theory - is as dead as God, and for the same reasons.

Nietzsche=s figure of laughter and queer studies= figure of gender performance and parody will act as resources in this experiment to try to cultivate a stance or a habitus that - contrary to many Marxist and feminist accusations about the frivolousness of postmodernism - takes justice seriously, but remains constantly aware of the insight, first developed by Nietzsche and carried further by Gilles Deleuze, that to leave Western metaphysics really behind implies abandoning the whole quest for epistemological as well as ontological foundations. Although, like feminist thought, queer studies has arisen largely out of reflections upon experience, queer thought is not reducible to validating the experiences of minorities: it is not a form of >standpoint theory=. That is why this essay uses some fictional female figures as inspiration and material for reflection, rather than relying on the sort of historical and sociological material usually deployed by feminist and critical-race writers. From a queer perspective, gender itself is a fiction, however painfully it is inscribed - like Kafka=s penal law - on our bodies and in our souls. Nietzsche and Deleuze are therefore as queer as Foucault, if queerness is not an identity but rather a wish to work through the consequences of the death of God and the consequent death of Knowledge. Queer thought - and the queer ethics practised here - is open-ended, having no fixed content and no particular telos: queer thought is defined only by the rejection of all projects to discover and fix >the truth=.

Irigaray=s reflections about the way in which ethical practice as such has been linked with a masculine sense of the self as bounded, singular, and self-identical were developed in a purely philosophical discourse - that is, ahistorically. Alain Pottage=s use of Irigaray to address issues in theoretical discussions of justice is, significantly, also markedly unhistorical, focussing exclusively on interpersonal relations and privileging the heterosexual dyad within those (Pottage, 1994). Also drawing from Levinas= work on alterity and ethics, Derrida has recently presented a more historically grounded analysis of the way in which both ancient and modern practices of male friendship and wartime camaraderie have had the effect of gendering ethical practices that are not in and of themselves exclusive to one gender - the basic ethical practices of relating to oneself, to others (especially one=s friends) and to the actuality or possibility of death (Derrida 1997). Derrida=s work begins to apply this critique of the masculinism of ethics to the political sphere - particularly in his thoughts on the necessary masculinism of the >fraternite= that underpinned the French Revolution and continues to ground republicanism everywhere. But Derrida=s work, while of interest to political thinkers and legal writers, is mainly concerned with philosophical traditions. Living practices - the funeral eulogy in ancient Athens, the patriotic symbols of the republic in official French culture - are presented mostly with an eye to revising our view of the history of philosophy. Furthermore, Derrida=s work on friendship does amount to a critique of the masculinism of French political institutions, but there is virtually no consideration of feminist work on justice and ethics (Valverde, 1999).

A more direct engagement with the issue of possible feminist revolutions in institutions of >justice= is the work of Peter Goodrich. Goodrich has combed a number of legal sources that are of more than antiquarian interest, in that they can be read as episodes in or glimpses of Athe forgotten faces of a law that was never one@ (Goodrich, 1995, 155.) His analysis effects an original combination of Lacanian and genealogical reflections on Athe legal repression of the feminine, not simply in terms of legal doctrine but equally in terms of legal method and conceptions of justice.@ (Goodrich, 1995, 152). The repressed feminine is presented neither in >serious= philosophical terms, as it is in Irigaray=s work, nor by granting immediate theoretical significance to any particular bodily difference, as is done in much feminist work on ethics. The genre of >apocryphal history= cultivated by Goodrich manages to draw our attention to the neglected or rejected possibilities of European legal history, without entering into arguments about whether or not such interesting institutions as women=s courts of love actually existed or not (Goodrich, 1996). In this way, most of the essentialist burdens of both feminism and psychoanalysis are avoided. The effect of Goodrich=s inquiries into junctions in the history of European law at which certain feminine or queer routes were not chosen is more to destabilize masculinity and its laws than to glorify femininity or fix it in any other way.

The essay AFate as seduction: the other scene of legal judgement@, for example, is relevant to my project of thinking about gender and justice without assuming that (hetero)sexual difference is at >the root of everything=. It will considered here partly as a prolegomenon to a discussion of the fateful figure of Antigone, long considered the foremost symbol of a suppressed feminine justice.

Like similar work by Costas Douzinas and others (Douzinas and Warrington, 1994), Goodrich=s essay on fate offers a reading of the inescapable human experience of mortality as that which trips up law, which denies law=s claims to eternal and disembodied governance, undermining and exposing the fundamental legal fictions of fixed meanings, stable relations, and timeless truths. Now, exposing law=s ridiculous claims to timelessness is something that can be and has been done from a postmodern perspective - in arguments about hyperreality and the loss of meaning in today=s fluid world. The arguments developed by Douzinas and by Goodrich are more classical than postmodern, however. Rather than embracing fluidity or imagining that we live in a uniquely >postmodern= world, they have argued that decay and death have always been the repressed of law.

In a more or less Heideggerian argument, Goodrich points out that mortality is an inevitable dimension of human existence and is constitutive of ethics as such. Invoking death and remembering the inevitability of change and decay is thus not so much >taking up an attitude= in the sense that Nietzsche=s contemporaries, the nihilists, took up an attitude: it is recognizing an unavoidable experience. AIn historical terms, the imaginary status of death, its unassimilable quality or irreducibility, made the event ot meaning of death the repressed reality of the symbolic or legal form.@ (Goodrich 1993, 121.)

Putting together this argument about death/change as the repressed of law with the Irigarayian argument (adopted by Goodrich) about femininity as the repressed of ethics and justice has the effect of feminizing death itself, hence opening up possibilities for feminist explorations of the ethical implications of mortality that stand in sharp contrast to the usual assumption that facing up to death is a paradigmatically masculine ethical practice. There are different ways of facing death, however - there is the heroic masculine tradition of wartime bravery, for instance, which is not very suitable for feminist appropriation. Instead, Goodrich turns his gaze to a non-heroic and non-military figure: the fates.

The (usually feminine) fates of classic Greek tragedy enjoin us to acknowledge the unity of the future and of the past, and to attempt to do our duty even in the face of death by heeding the spectral memory that grounds - or that is - justice. For Goodrich, as for Walter Benjamin before him, the memory that grounds the work of justice is not strictly individual, and neither is it primarily located in the limited intersubjectivity a deux of the heterosexual dyad (as it is for Irigaray). Memory is always social and political; it is the memory of a people as much as that of an individual (Benjamin 1968). And, in the Benjamin-Levinas-Derrida tradition, memory is definitely not an act of individual will. Individualistic liberalism is precisely that which erases that sense of justice as collectively rooted memory.

The fates evoked by Goodrich are in many ways embodiments of the spectres of history eloquently addressed in Derrida=s Benjamimian work on the historicity of justice (Derrida 1994). As such, they invoke both that which is supra-personal, collective, rooted in a specific history and that which is most personal. The predictions of the fates require no psychological knowledge of the individual, since they are classical, pre-psychological ways of practicing responsibility, but they are always addressed to a particular individual in his or her unique dilemma. This is because the fates, like all truth tellers, can construct a narrative about a particular life only from the standpoint of its final closure. To that extent, the fates have an intimate relationship with death.

The psychic fact that people tend to repress the inevitability of their own death is thus intimately linked to the forgetting of the responsibilities of which the fates remind us - the forgetting of justice. Reflecting upon our own future death involves thinking about the shape of our individual life, a critical practice that inevitably involves imitating the fates= ability to speak, as it were, from the threshhold of our own death, the only point from which an individual life can be said to have a well-defined shape and a definite ethical meaning.

How does this reading of the ethical powers of the fates relate to the theorization of the relation between law and justice? In Goodrich=s analysis, the specific legal function of the fates is to remind law itself that it is human, not eternal, and that it too is therefore mortal. That which cannot be contained by law - that which Derrida calls justice - is precisely the fact that law is not eternal but rather subject to change and decay. In this account, law=s forgetting of its own mortality - the legal death of death, so to speak - is an important dimension of the flight from justice. And although neither Derrida nor Goodrich explore this point, it could be additionally argued that the figure of the fates helps to debunk the founding myth of liberal law: individual free will. The fates speak to individuals and enjoin them to take responsibility for their decisions, and so they do not simply represent the brute natural necessity that has always accompanied the rational liberal subject in its travels. But the fates, while addressing specific individuals, undermine the myth of the free will that law necessarily promotes to the extent that they deny the liberal subject=s illusion of being self-made and having the ability to will a future from scratch. They are profoundly antiliberal figures, whose own ambiguous temporality is not dissimilar to that evoked in Nietzsche=s call for us liberal subjects to look back and will not the future but the past.

But how does this general process - the tendency of law to repress its own mortality and deny the work of memory while propagating the anti-historical doctrine of free will - work in the particular circumstances of our present? Irigaray has an answer to this, namely that the repression of the feminine, the pre-rational and hence pre-liberal feminine, is precisely what we are called upon to explore and expose. And this fits with Goodrich=s emphasis on the feminized fates as the spectres haunting law. From their perspective, the task that our own fates impose upon us is to try to find some way of speaking about the unspoken, unconscious, repressed of law and culture, either through poetry and metaphor or through the discovery of buried historical or mythological moments in which law did speak or might have spoken in a different voice and from a different body. That has been a fruitful avenue, pursued today by scholars writing in more or less Lacanian modes about gender and justice (inter alia, Grosz 1995 and Diprose 1994).

If we take the post-Lacanian standpoint of multiple sexual differences, however - a position at the meeting point of postcolonial studies, queer thought, and the deconstruction of the subject carried out by Foucault and Deleuze - then we are led to ask what exactly is accomplished by automatically assigning the fates and their justice to the >side= of femininity. Just because the humanist illusions about the light of reason and the freedom of the individual will have been shown to be peculiarly masculine, does this mean that the ethics and aesthetics of fatality and tragedy are somehow feminine?

Antigone is the best-known and most frequently invoked image of the link between femininity, fate, and justice, the justice that constantly denounces the inadequacy of man-made law. Indeed, if one wanted to argue that justice must be feminine because law is patriarchal, a more apt example than the tragedy of Antigone could hardly be found. The tragedy has of course not always been read as a tale of two genders: Hegel=s influential reading of it, for instance, is mainly concerned with using the play to develop his theory of ethical life (Sittlichkeit) as necessarily containing both the abstract law of Creon and the concrete sense of responsibility that drives Antigone, but is nevertheless rather gender reductionist. Even in readings that background gender in favour of some other (equally binary) plot line, and even in some subtle readings that focus on that which Hegel ignores, namely that the play opens with two women, Antigone and her sister, presented as taking opposing strategies for doing justice to the memory of their dead brother (Kerruish 1996, Diprose 1993), there is a tendency to counterpose the law of the father/king to the ethical practices of woman/women. Valerie Kerruish, for instance, presents an interpretation that is typical of psychoanalytic approaches to gender and justice:

But if we are not interested in following either the ethic of care writers or feminist psychoanalytic legal theory in their attempt to explore buried feminine justice or the feminine as such; if we are interested in exploding the gender binary and proliferating forms of sexual difference and hence ethical stances, then the text of the tragedy - as opposed to the more or less Hegelian interpretations that circulate much more widely than the original tragedy - offers some interesting resources.

Let us begin with the minor characters. They share two features: they are all masculine and they are all, to a man, complete cowards. The soldiers who execute Creon=s command and bring him information are positively obsequious and only ever think about how to avoid responsibility. The anonymous male citizens, in turn, never even appear before the king. They are content to Amutter@ against Creon, Ashaking their heads in secret@ and contesting Creon=s will not publicly but Ain a rumour spread in secrecy and darkness.@ (Sophocles, 1956 10 and 21).

What about the main male character, Creon? Although usually read as representing the public law of the city-state, Creon is not shown drawing up rational and universal legal codes. He is shown only issuing a single decree pertaining to a particular person (or rather dead body). Perhaps because of this emphasis on particularity (which Hegel cannot see given his assumption that men are closer to the universal moment in both familial and political dialectics), he comes across as a feminized, weak figure whose tyranny is rooted in nothing but lack. Lack of wisdom, specifically. Like the mythical cruel queen in >Snow White=, he is constantly asking his faithful talking mirrors whether anyone in the land is more lawful than he. His denunciation of Antigone seems to have as much to do with personal prestige as with legal principle.

When Creon finds out that it is Antigone - his future daughter-in-law - who has been going beyond the city walls to perform burial rites for her brother against his decree, he decides he cannot alter his earlier command. Contrary to Hegel=s interpretation, this is not out of an abstract duty to universal principles of law, but out of a familially grounded sense of paternal authority: AIf I permit disloyalty to breed in my own house, I nurture it in strangers@ (Sophocles 1956, 20).

Antigone, by contrast, is the only truly brave character in the play. And her motives for risking her life are by no means >feminine=. First, she risks her life not to promote the ethic of care but to do homage to a death. Secondly, her sense of duty is not at all reducible to the bourgeois law of the family/household. She insists - contrary to her sister=s more sensible advice - that the burial rites must be performed publicly, not privately. She is thus a very dubious representative of the law of the household. Indeed, if anyone represents the household, it is the invisible and unnamed male citizens who mutter in their homes but do not venture out into the marketplace.

Antigone does make a stand for family loyalty. But she also stands for a masculine responsibility toward those with whom we are linked through supra-instinctive, non-natural, links of love: those who are brothers in the classic sense, and thus friends. Her actions are sister-like but they are also brother-like, and she talks about her duty to her brother in exclusively non-biological, purely ethical terms. For her as for Montaigne and all of the pairs of classic male friends evoked by Derrida, brotherhood is never natural even when it is biological: Athe brother is never a fact.@ (Derrida 1997, 159). And at the end, of course, Antigone chooses to actively end her life in a dramatic word-filled suicide rather than suffering silently unto death, thus enacting the corrageous ethos of brotherhood/friendship. All in all, there are clearly at least some grounds for regarding the play as an early instance of >gender trouble= (Butler 1990).

It could be objected that reading Antigone as performing gender trouble rather than embodying femininity is too perverse, in that fateful tragedies have their own logic and ought not to be turned into cross-dressing farces. That objection would have a great deal of force if the aim of the commentary had been to provide an account of what the tragedy meant in its own time. But my task here is not to provide a commentary on Sophocles, but rather to take apart the gender binary by deconstructing the oppositions (law vs justice, human law vs divine law, the city vs the household) that have always grounded it and given it ethical and political meanings. Turning Antigone into a cross-dressing queer farce raises an interesting question: Why is it that the great tragedies of European cultural history are not only >about= heterosexual romances and families but are - or are read as - aligning heterosexuality itself with the fundamental human tragedies of non-reconciliation with the Other and non-identity with one=s self? Heterosexuality as comedy has of course been the stock in trade of cheap romance since the 18^th century; but at the level of high culture, heterosexuality is tragic - and tragedy is, as such, heterosexual. This implicit linkage is made not only in drama and literature but also within psychoanalytic theory. If even a non-sexual tragedy, like Antigone, is nevertheless constantly read as >about= >the battle of the sexes=, this is because there is an underlying assumption that real drama, >great= tragedy, is always already contained within heterosexuality. Jonathan Dollimore, in whose work this question has been most thoroughly addressed, writes:

Christian narratives about the fall, about the impossibility of ever regaining the paradise of fulfilled desire, are always also narratives of and about heterosexuality - as are psychoanalytic narratives. Between them, Christianity and psychoanalysis have captured much of the discursive field of sexuality: but they have not totally monopolized it. We can thus ask: what possibilities might there be for a way of thinking critically about law and justice that seeks to undermine rather than to re-theorize sexual difference?

We could do worse than to start with Nietzsche, and in particular with his figure of laughter. In doing so, it would be unhelpful to simply counterpose the concern with death of fateful tragedy to the life-affirming quality of Nietzschean laughter. It would not do to get out of the gender binary only to reproduce and re-perform the parallel binary of life vs. death. So it may be appropriate to begin this reflection on laughter, irony, and the possibility of justice by remembering Nietzsche=s warning in The gay science: ALet us be on our guard against saying that death is the opposite of life; the living creature is simply a species of dead being, and a very rare species.@ (Nietzsche, 1960, 153). And if life is not the opposite of death but rather death=s eternal partner within the larger universe of what Nietzsche sometimes calls >nature=, as Daniel Conway suggests (Conway 1995), the implication for ethics is that it is pointless to argue about whether Heidegger was right in emphasizing death or Nietzsche was right in emphasizing life. As Deleuze explains, what both Nietzsche and Foucault pursued in their thinking about aesthetic ethics was the possibility inventing new modes of living including new relations to death: Al=invention de possibilités de vie qui concernent aussi bien la mort, nos rapports avec la mort@ (Deleuze, 1990, 127).

If we agree with Nietzsche that is more useful to see life not a vitalistic abstract principle counterposed to the equally abstract notion of Death, but rather as a temporary condition enjoyed by some parts of nature, then we will be less likely to identify life as such with womanhood (as many ethic of care writers tend to do) and death with masculinity. It may then be possible to take life-affirming laughter seriously without falling into vitalistic metaphysics or gender binarisms.

Laughter makes numerous appearances in Nietzsche=s texts, and the effects of laughter are by no means always the same. For present purposes it is unnecessary to do a whole inventory of forms of Nietzschean laughter: it is sufficient to focus on the understated laughter at one=s own truth claims that is generally called >irony=. Irony has always been a handy technology of skepticism - especially the serious skepticism that applies to one=s own truth claims. Irony allows us to utter a statement and deny it at the same time, without requiring any grand resolution or synthesis. Now, Nietzsche was of course one of the greatest skeptics of all time. And he used a great deal of irony in his writings, particularly those writings of the most fruitful period of his life, that that can be placed as after >getting over= his infatuation with Wagner=s romanticism but before he began to (perhaps because of his mental illness) take himself far too seriously as the anti-Christ. The gay science is one of these works, and it is, not surprisingly, full of irony in both verse and prose. The skepticism about both human and natural sciences developed in The gay science is not only that of the author/writer, however: some of his >characters= are presented as particularly good at practicing skepticism as an epistemological stance or habitus. One aphorism that (unlike others featuring female figures) has not been much discussed either in Derrida=s essay on >the feminine= in The gay science (Derrida, 1979) or in the feminist literature on Nietzsche is curious in that it ascribes the ability to practice skepticism not only to women in general but to old women in particular.

A keen interest in appearances and surfaces; the ability to dissimulate and to manipulate appearances to create >effects= ... this is of course the paradigmatically female habitus, according to the classic misogynist discourses on vanity, finery, and so forth. But is Nietzsche actually practicing misognyny? For philosophers like Plato, who believe in the existence of a >deep= and >true= world that is defined precisely as being beyond appearances, old women=s alleged skepticism about the depths and keen interest in appearances would be damning indeed. In Nietzsche=s philosophically inverted world, however, it is precisely those who, like Plato, insist on training the human gaze upon the supposed immutable depths that lie under the constantly changing world of appearances who are truly ridiculous.

And indeed, if we go back a few pages, we can see Nietzsche actually describing his own most difficult philosophical struggles in terms that effect an identification between Nietzsche at his >best= and the old women of the previous quote, thus quietly valorizing the old woman precisely because they Abelieve in the superficiality of existence as its essence.@

The entities that have been theorized by male philosophers and called >essential= (the self; substance) are but effects of the contingencies of humanity=s own unavoidable way of looking at the world. That is: humans can only ever know what things are called, not because reality is ineffable but because what is called >reality= is but an illusion constructed by the structure of grammar and by humanity=s psychic weaknesses. An important corollary of this central insight of Nietzsche=s is that we now need to begin to take names, appearances, and reputation very seriously, if we are going to replace Platonist metaphysics by the life-affirming thought of the >free spirits= that are addressed (interpellated, one might say) throughout Human, all too human.

Conventional ethics - like metaphysics - has always denounced the superficiality of >reputation=, and, since the beginning of Christianity, has regarded the Aristotelian approach to ethics as a matter of habits with great suspicion. The deep virtues of the inner soul have always been counterposed to (old women=s) concern for appearances, for how one looks in the eyes of others. Along similar lines, philosophers from Kant to Habermas have historically sought to replace the classical Greek sense of ethics as ethos, as a set of habitual practices that are literally inscribed in the body through force of repetition, with something more rational, more objective, >deeper=.

The same thoughts that led Nietzsche to question not this or that metaphysical claim but the whole project of finding truth at a metaphysical level also have the effect of destroying the traditional ethical philosophers= binary opposition of >deep truth= vs. >mere appearances=. Ethical authenticity, for Nietzsche as for Foucault, is not somewhere deep down: it consists of a certain ethos, stance, or habit, a willingness to work on and encourage what Deleuze calls Ala production de modes d=existence ou styles de vie.@ (Deleuze, 1990, 156). This Nietzschean phrase in Deleuze has its counterpart in Nietzsche=s remarkable use of the Deleuzian notion of >the fold= to validate the old-woman-like concern to preserve modesty, remain on the surface, and refrain from Baconian efforts to wring the truth out of nature. In a passage quoted by Sarah Kofman in her own experiment of using Nietzche to critique gender essentialism, Nietzsche writes:

Thus, the notorious interest in appearances and surfaces shown by aging women is not, in the particular context of Nietzsche=s work, a damning characteristic. On the contrary: although Nietzsche would be unlikely to grant to the old women much by way of self-consciousness and reflexivity, nevertheless they are indeed >free spirits= avant la lettre. They are therefore more advanced, in Nietzsche=s terms, than the male philosophers and natural scientists who have always looked for deep truths, and who have in a curious manoeuvre tended to identify the >naked= truth with the feminine body (Derrida, 1979, 88 and 96-100). Figuring truth itself as feminine (as is done in the allegorical figures found in the friezes of neoclassical monuments to masculine learning) has the effect of masculinizing both science and philosophy, and, not coincidentally, hard-wires the pursuit of truth to heterosexuality itself. The eternal feminine, Goethe=s famous >ewige weibliche=, assumed to be an object of heterosexual desire, has a constitutive effect on the truth as well as on the subjects who seek it. This cliche of Western European culture thus manages not only to naturalize heterosexuality but to construct it as epistemologically foundational.

There is an important difference, however, between the perhaps frivolous interest in surfaces attributed by Nietzsche to old women and the deconstruction of the depth/surface binary that Nietzsche himself effects. The old women prefigure Nietzche but they can never be Nietzsche (in his view, anyway). The sort of knowledge of justice that is required for a Nietzschean approach to ethical practice is somewhat different from the simple pragmatist claim that the surface is all we can know. For Nietzsche, and for Deleuze and Foucault as well, going on after the death of God is not a matter of choosing the surface over the depths but of deconstructing the opposition. This is elaborated very precisely by Deleuze in his imaginative comments about philosophy as >general dermatology=, in an interview about Foucault in which he was asked whether Paul Valery=s remark, Ale plus profond, c=est la peau@ might be a good motto for Foucaultian research methods:

Experimenting with performances and >appearances= - or, more accurately, with the >assemblages= that can no longer be called appearances if one no longer believes in an underlying >reality= - is at the heart of queer ethical reflection. Experimenting with various styles of life, ways of dressing, behaving, and presenting oneself, and perhaps more importantly, experimenting with new ways of thinking and writing, is of course what Nietzsche tried to do: to that extent one can see him - his life and his modes of writing as much as the words of his texts - as a model for queer ethics.

And yet, I would not want to wholeheartedly endorse Nietzsche as such, Nietzsche as a single figure. I would like to suggest that the most useful dimension of Nietzsche=s work, for the purposes of thinking queer thoughts about ethics and justice, is that which cultivates a certain ironic distance with respect to one=s own truth claims. There are those even within queer studies who have already begun to take themselves extremely seriously, and who, fuelled by the self-righteousness that characterizes most American battles about identity politics (Brown, 1995), fulminate against those thought to be >backward=, repressed, unenlightened, and so forth. And there is some authorization within Nietzsche=s work for that - not for identity politics, of course, but for taking up the >misunderstood genius= role and assuming it as the truth. Without going into the painful details of his personal life, it is clear that although Nietzsche was sometimes clear-headed about his own tendency to arrogance, he often had to try a little too hard to laugh, especially to laugh at himself (Nehamas 1985).Certainly, the isolation that he suffered, combined with very serious ill health, did not facilitate the cultivation of a light-hearted ironic skepticism. But perhaps it is easier for us today to laugh at ourselves, since there are a good number of relatively safe spaces in which one can do so, even if the world in general shows no signs of taking Truth less than seriously. Today it is perhaps possible to experiment with writing about justice that pursues the insight first developed by Hegel and then taken up, in a relentlessly anti-dialectical, anti-synthetic manner by Nietzsche, that there is a permanent dissonance within the self, a dissonance, a lack of self-identity, that one is not obligated to read as a a tragedy (Diprose 1993).

The recognition of non-identity, the acceptance of that >excess= within the self which cannot be sublated or reconciled or otherwise made whole, is, I would argue, precisely that which is called irony. If taken up at the level of the psyche, this amounts to little more than Lacanianism, albeit a Lacanianism taken out of its original tragic key and transposed into a more comic key. But what about the civic, political dialectic that is always as integral to ethical reflections as the dialectic of the I and thou?

This takes us back to Antigone, as it happens. The tragedy is these days usually read as an I and thou dialectic between two individuals - Creon and Antigone - but there is a strong political dimension in the original tragedy that is particularly visible if one reads the tragedy in conjunction with its sequels and prequels. Let us turn for a minute to Hegel=s famous account of the conflict between Antigone and Creon. While largely concerned with the tragedy of non-reconciliation of the universal and the particular, Hegel=s account contains a strange little passage that transposes the tragedy into an ironic key. Hegel=s account of the fateful way in which the legality of the developing city-states necessarily clashes with the ethics of family and ancestors argues that Acommunity@ creates for itself, in what it suppresses in order to constitute itself, an internal enemy: womankind. Like Foucault=s mad people, Hegel=s women play a constitutive role for the polis, in that it is their very exclusion and subordination that allows the sunny world of public law and order to emerge. Now, one would think that Hegel would consistently portray the subordination of the feminine as a tragedy - like every educated European man of his generation, he was not likely to forget the difference between a tragedy and other dramatic modes. (Engels, to give a later example, read the >historical defeat of the female sex= as a tragedy). But Hegel deliberately chooses a word that reinscribes the tragic sublime as the ironic ridiculous:

Through the unlikely vehicle of Hegel=s glimpse of young women who laugh at mature men, we are back with Nietzsche=s old women now - those female creatures who devote themselves to the here-and-now, to >the tactics of the weak=. Antigone=s ethical practice leaves what Derrida would call a >trace=, something which can never be fully appropriated and recuperated. And that feminized trace is - perhaps - what we can read into Hegel=s mysterious phrase >the everlasting irony of the community=.

Irony does not deny truth A in favour of truth B: it creates a moment of irresolution, a permanent question mark. We can thus read Hegel=s figure of the irony within community, within the realm of the ethical, as a symbol and a reminder that queer ethics is not about replacing one set of values with another, it is not about replacing a focus on >the depths= with a frivolous concern for appearances. Queer ethics seeks not to institute new codes but to act as a permanent source of irony, a resource for constantly questioning not just received truths but event the critical truths that we ourselves generate. It is thus fully deconstructive, refusing the temptation to re-ontologize the self that characterizes identity politics. The laughing young woman fleetingly evoked by Hegel does not have any identity of her own (and is thus not a resource for the ethic of care). She is simply laughing, not uttering new truths. She is not the harbinger of a new matriarchy or of a new world in which the ethic of care and the logic of liberal law have been synthesized: she is simply a reminder of the always faintly ridiculous character of the claims made by law and by >straight society=.

Let us now turn to another aphorism in The gay science that simultaneously recognizes and disavows >gender trouble= and gender parody. This aphorism appeals to the paradigmatically queer sensibility of opera and theatre, and has a title that has, to our ears at least, queer connotations.

Hearing queer voices, Nietzsche experiments with imagining a world in which women would finally be freed from the great historic burden of signification that psychoanalysis has reimposed upon them. In this theatrical universe, woman/women would no longer have to bear the burden of signifying truth, symbolizing beauty, becoming an advertisement for justice, or any other work of signification and symbolization. But they would not therefore become men or like men. They would become >superior= to sex itself, embodying Athe best in man, superior to sex.@ In this world, we might all become actors and playwrights who experiment with appearances, rather than figures and symbols with pre-inscribed meanings. It is a world that cannot even be imagined, since Freud was right to the extent that gender/sex is an inescapable destiny, for now. But, inspired by the queer sound of a contralto or a tenor, one can daydream that one might at least be able to write a play exploring the possibilities of an unreal world in which gender has ceased to matter.

Let us move towards an ending by leaving aside this playful queer aphorism to turn, with an abrupt move that may help to highlight the precariousness of the dream of a queer voice beyond gender, to a passage from Thus spoke Zarathustra that has always been taken to represent Nietzsche=s most conservative gender performance. This is the notorious passage in which Zarathustra reveals Aa little truth@ about younger women: A>You are going to women? Do not forget the whip!=@ (Nietzsche 1995, 67).

In Nietzsche=s text this text is surrounded by two sets of quotation marks (and thus should here have three sets of quotations, if that were technically possible). The words quoted are not uttered either by the book=s author or by Zarathustra (something forgotten in most commentaries): rather, they are reported to the reader by Zarathustra but attributed to - Aa little old woman@.

If we re-read the passage taking into account this double remove from Nietzsche as author, and keeping in mind the interesting role played by >old women= in the passages from The gay science cited above, it becomes possible to experiment with a new interpretation of the words. The old woman who makes a quick cameo appearance in Zarathustra is portrayed as secretly handing him a Alittle@ truth about (other?) women that Zarathustra says he has to hold Alike a baby@ for fear that it will Acry out@. Now, why is the statement about the whip made in the context of this elaborate baby-centered performance? The scenario is not very conducive to creating the impression that Zarathustra is re-creating the Socratic tale about the male philosopher reporting the >higher= truth told by the female priestess. Indeed, the deliberately ridiculous details about the truth=s baby-like status may constitute yet another one of Nietzsche=s often bad jokes at Socrates= expense.

But be that as it may, there are good grounds for doubting the >obvious= interpretation of the passage - that Nietzsche himself believes that men need to physically and brutally dominate women. Apart from the identification of truth with a baby, something else that dislodges the conventional interpretation is the fact that the old woman=s Alittle@ truth takes up very little room by comparison with the longish string of truths about women told to the old woman by Zarathustra. Zarathustra=s own truths are that man needs to be educated for war only, that woman is essentially there as recreation of the warrior, and (rather in conflict with the previous two truths), that woman does not really need or want men, she just uses men to get children. So woman=s real object of desire is not the warrior, but rather the child. And yet, the warrior is not wholly other, since: AIn a real man a child is hidden - and wants to play.@ (Nietzsche, 1995, 66).

What is (hetero) sex about, then? The woman wants a child; the man wants to be the child, to play. If we look at (hetero)sexuality as playfulness rather than as tragedy, what role might the whip have? S/m imagery was of course not as widely disseminated in Nietzsche=s time as it is today; but whips were by no means unknown in the brothels of late nineteenth-century European cities, which we know Nietzsche visisted at least once. So if we are willing to see the old woman in a different, more perverse light, AThe madam=s truth about sex@ might perhaps be an alternative title for that notorious passage. And if we were to canvass madams= views of heterosexuality - as opposed to focussing on serious literature - there is no reason to think that women would be always on the receiving end of the whip.

Whatever intentions Nietzsche might have had - whether he was directly expressing misogyny and choosing a very indirect and ambiguous format to do so, or whether he was simply playing with his audience - the fact remains that we can now read that passage differently than we might have in earlier times. Should ethical experiments involving sex toys be relegated to the field of low farce and cheap pornography? Why is there such a reluctance among feminist thinkers to imagine experiments with gender and sex that are >beyond good and evil= but are nevertheless fully ethical in the Greek sense, in the sense of working actively to constitute an ethos of freedom?

Among all queer thinkers, it is of course Foucault who has done the most to challenge us to experiment with rather than simply re-theorize all of the multifarious differences that have been repressed by the narrative of sexual difference. When he said, Asex is not a fatality: it=s a possibility for creative life@ (Foucault 1997, 163) he was referring primarily to sexual activity, but there is no reason to think that the >sex= in this passage could not be read in the sense of >gender=. But in reading sex/gender as containing yet unexplored possibilities for creative life, it is absolutely necessary to recall Nietzsche and Deleuze=s warning to not counterpose >fatality=and death to life. Sex is creative and playful, but it can and sometimes is also fateful, occasionally even fatal. Keeping both of these dimensions in mind at once is difficult: but then, nobody ever said it would be easy to seriously maintain an ironic distance with respect to our own preferences. Those who, like Derrida, have a taste for classical tragedy may need to explore our ironic, gender-troubled side. And those whose narrative about the self is largely comic may do well to remember that performativity always has limits, and that not all forms of fatality have been abolished with the rise of playful postmodern discourse.

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ENDNOTES