Butler’s notion of ‘performativity’ is most famously associated with her views on gender and is important for critical legal thinkers because performativity is deeply entangled with politics and legality. Her focus on performance has been widely influential because performance and performativity enable discussants to move beyond analyses of legal definition or status to consider the political and social discursive forces that construct and normalize legal or political practice. For Butler, performativity is not solely an extension of discourse theory as her later works suggest bodies “speak” without necessarily uttering. This brief review will provide an abbreviated history on the conceptual genesis of the term “performativity,” how Butler (re)defines and employs it, and finally how Butler’s account may be useful for critical legal thinking.

John Austin was an “ordinary language” philosopher who is credited with initiating the study into performatives. Ordinary language philosophers tend to collapse the use/meaning distinction and replace it with the notion that the meaning of a word is its use.¹Stanely Cavell, The Claim of Reason 206-7 (1972). Austin analyzed performative utterances in three parts: locution, illocution and perlocution.²J.L. Austin, How to Do Things with Words 1-11 (1962). His project, somewhat similar to late Wittgenstein’s, theorized how speech-acts do or mean things in ways other than generating true and false sentences. Although each sentence may be said to be true or false, sentences do more than provide true or false pictures of the world. For Austin a ‘performative utterance’ was a speech act that creates events or relations in the world. An example is when a bride/groom and groom/bride say “I do” at a wedding, they may then actually become married. Every utterance is a locution, the noise of an utterance when “saying something.”³Jacques Derrida, Signature Event Contest, in Limited Inc. 3-12 (1988). The illocution is the effect intended in saying something (the locution determined by social conventions in particular situations, i.e. marriage), while perlocution is the effect (upon listeners and in society) by saying something.⁴Austin, supra at 122-131.

Without going into too much nuanced details of Austin’s theory, one should attend to the distinction between performance and performative. All utterances are performed, but not all utterances are performatives. When an utterance meets the social conventions it is has felicitous uptake making it into a performative that transforms. The bride(s)/groom(s) must fit into socially constructed roles, i.e. “bride(s)/groom(s)”, that allow them to say “I do” for those utterance to enact “marriage.” Saying “I do” at a rehearsal dinner will not enact marriage. Performatives are utterances that engender formative force per the utterance (formative + per (utterance) = performative). Performatives are, even without a Butlerian slant, fecund arena for legal interrogation.

Although Butler does not strictly adhere to an Austianian notion of speech-act theory, occasionally (re)citing John Searle, Derrida and many others, the notion that speech does something beyond the intended semantic and syntactical meanings remains a central aspect of her writings.⁵Judith Butler, Bodies that Matter (1993); Excitable Speech (1997). Importantly, she combines speech act theory with a phenomenological theory of “acts,” Lacanian psychoanalysis, as well as a heavy dose of Foucault’s notions of subject formation to explain how social agents constitute and reconstitute reality through their performance of language, gesture and sign.⁶Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory (1988) 40(4) Theatre Journal 519-531; Gender Trouble (1990); The Psychic Life of Power 83 (1997). Under Butler’s account, “agency” already implies “social agency,” which is to say that someone exhibiting agency is already publicly identifiable. Performatives are then “inserted in a citational chain, and that means that the temporal conditions for making the speech act precede and exceed the momentary occasion of its enunciation.”⁷Butler, Notes Toward a Performative Theory of Assembly 176 (2015).

Early Butler focused on the production of women as subjects of feminism. Following Foucault, who argued that subjects are constructed through the juridical notions of power to produce the subjects they come to represent, Butler seeks to uncover how it is that “woman” comes to be a subject and how subject status allows one to stand before the law.⁸Gender Trouble, 2. This notion that someone comes to stand before the law through the (re)construction of subjective agency is continually explored through her texts. The “law” Butler speaks of does not necessarily mean juridical law. Instead, it could be “heterosexual law” which is a bundling of juridical and disciplinary forms of power into a discursive performance as a way of being. Throughout the course of one’s life, one reiterates performances of gender that conform to a gender norm, which has the discursive function of re-inscribing gender performatives and rendering the individual intelligibile. As such, “gender is always a doing, though not a doing by a subject who might be said to pre-exist the deed.”⁹Gender Trouble, 25.

To see how this works, consider a doctor/nurse’s announcement, “It’s a girl!” The doctor/nurse’s utterance is a performative act that initiates and constitutes that infant’s way of being in the world. One could too hastily object that the infant is sexed and is therefore a girl. That objection elides the doctor/nurse’s performative utterance that collapses sex/gender into social identity formation. Consider the terms cited in the following sentence: “the infant had female-body parts that allowed the doctor to exclaim it is a girl.” The “infant-body,” which is also called “it” before it is “girl-ed” or “boy-ed,” has no social identity. When the body is identified as “girl,” the utterance imposes “girl-ness” upon the body, therein interpellating the “infant”/”it” into “girl.” The act of the doctor/nurse is not mere performance. It is performative because the act of naming the body a “girl” also constructs “her” identity as “girl.” This is not a natural fact of the body, but a forcible “citation of a norm, one whose complex historicity is indissociable from relations of discipline, regulation, punishment’.¹⁰Bodies that Matter, 232. It is salient to Butler’s account that before being girl-ed or boy-ed the “infant-body” or “it” is also excluded from social identification by the re-iterability of the norm.

As connected with legal studies, she writes “Law is not literally internalized, but incorporated, with the consequences that bodies are produced which signify that law on and through the body.”¹¹Gender Trouble, 134-5. Law dictates the form of performance but one performs the law through their expression even if it not necessarily of their choosing. The doctor’s/nurse’s or someone else’s performative initiates a ‘script’ (or form) that “governs” and gives rise to the performance of and on the body. This does not mean one cannot reject that script and adopt a new one. Much has happened since Gender Trouble was published in 1990! The point is that the subject only remains a subject so long as they are able to reiterate oneself as an identifiable, intelligible and hence governable subject, which is dependent on the subject’s ability to reiterate performatives coherently. If one initiates a performative without a script, one that is fully outside the bounds of intelligibility, the performance or identity will be unheeded, but it does not mean they are outside the bounds of power. What renders one intelligible also demarcates what is unintelligible.

The performative naming of a body upon birth, either male/female or girl/boy, engages an artificial binary that suppresses more subversive sexual disruptions of hegemonic heteronormative discourse. However, the disciplinary apparatus that produce discourses of subjection bring about the very conditions for subverting that same apparatus. “In other words, the law turns against itself and spawns version of itself with oppose and proliferate its animating purpose.”¹²Psychic Life, 100. Those performatives, those most “injurious interpellations” may then become sites of radical reoccupation and resignification because those ‘signs/scripts/forms’ are discursively constructed.  Were gender identities fail to fit within the binary form one may enact an identity that challenges intelligibility while subverting the gender binary.

The subversive uses of performativity are manifest through citation and re-citation of the performative. It is the use of “ordinary language” in “non-ordinary” ways, or what Derrida would call “reinscription” that a term can break with discourse to engender insurrectionary potential.¹³Excitable Speech, 144-5. The iterability of the performance is generated from the citationality of the sign that allows one to ‘make trouble’ by citing or reciting the performative in ways that are contrary to or revealing of the instability of heteronormative hegemony.¹⁴See, e.g., Derrida’s Limited Inc., 7-12. Instead of saying “it’s a girl” the doctor/nurse could have uttered “it’s a lesbian!” For Butler, “the queer appropriation of the performative mimes and exposes both the binding power of the heterosexualizing law and its expropriability.”¹⁵Bodies that Matter, 232.

Although there is a subversive use, there is always the fear that (re)citing the performative either re-inscribes the heteronormative hegemony or falls outside of the intelligible. For instance, one might query whether gay marriage promotes or opposes heteronormative hegemony? One might easily say that it opposes hegemonic powers because gay marriage makes marriages gay. However, following Michael Warner, gay marriage might also make gays who marry more heteronormative thereby re-entrenching the status quo and further marginalizing those that are not yet before the law.¹⁶Michael Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life (1999). A way out of this, I think, is the notion that whatever is the status quo that gives rise to the real, the “forms” or the “scripts” that are performed giving rise to intelligible performance, is discursively constituted. This always allows for rearticulation and re-inscription.

For Butler, there are no natural bodies or bodies that pre-exist societal or cultural inscription. Unlike Arendt, who appears to believe that there are bodies that can remain private, Butler disagrees. Although a body may not be in the space of appearance, or the sphere of the polis, their exclusion from that realm is a result of discursively constructed performative effects upon the body that marginalize or exclude it. They are still “saturated” in power relations. There is no zoe to the bios or “bare life” in Agamben’s sense.¹⁷Butler, Notes, 79-80. Revealing and calling attention to that discursive operation through performances can assist in reimaging how bodies relate to one another.

The ability to continually challenge is more clearly illustrated in Butler’s later works. Where Butler’s early works are more focused on, perhaps, the individual, recent works are more on “precarity,” or the making of those who are precarious or on the margins.¹⁸See, Judith Butler & Athena Athanasiou, Dispossession: The Performative in the Political (2013); Notes Towards a Performative Theory. Again, this recites how one comes to stand before the law – or how the law disallows people to stand before it. Not everyone can come before the law, but the legal construction that acts to marginalize those who cannot come before it generates the very conditions of destabilization. While performatives enact structures of exclusion, they are the same that give rise to conditions of radical demonstration.

Performative contradictions, those speech acts that undermine their performative use in the act of speaking, demonstrate the failure of norms to be universalizing and totalizing. For instance, in terms of legal censorship, the regulation that “states what it does not want stated thwarts its own desire…that throws into question that regulation’s capacity to mean and do what it says[.]”¹⁹Excitable Speech, 130. Performative contradictions can be tactically performed to publicly destabilized pretenses of universality by highlighting it’s spatial and temporal dimensions. For instance, Butler discusses how undocumented people in Los Angeles took to the streets to sing the American National Anthem in Spanish in 2006.²⁰Judith Butler & Gayatri Chakravorty Spivak, Who Sings the Nation-State? 62-3 (2007). When so-called illegal aliens, who are “supposed” to be in the dark, appropriate a public space, especially in an “illegal public demonstration” to sing “America’s” National Anthem in Spanish, they enact multiple contradictions that interject conflicting ruptures within notions of public/private, legal/illegal, self/other, and national/non-national “ownerships.” It is the legality that makes the illegal, and the performative reclamations, possible. The performance of bodies, even those that do not or cannot sing, enact “speech” through performative contradictions in spaces and times, momentary flickers, that question who owns what and who is it one thinks one is.

Butler writes of three uses for performativity: 1) it “seeks to counter a certain kind of positivism,” which might be with regard to gender or the state, 2) it may “counter a certain metaphysical presumption about culturally constructed categories and to draw our attention to the diverse mechanisms of that construction” and 3) it is also useful in beginning to articulate the processes that produce ontological effects, or the naturalized assumptions of what constitutes reality.²¹Butler, Performative Agency, 3(2) J. Cultural Econ. 147 (2010). I also add that Butler’s account is useful for understanding how struggles for subject status interpellate individuals who seek to interpolate which may produce the unintended effect of further marginalizing those who are already precarious.

Although Butler is recognized for her influence in gender/queer studies, her work is widely influential. Performatives are generally useful to legal studies because the announcements of law are often performative. How a judge reads a verdict that has (or fails to have) performative power to transform relations is a potential object of further inquiry. When combined with Butler’s interest in the location of the social subject, questions about who may be the subject of the performative utterance, who is the speaker with the ostensibly authority to make performative utterances, or who is the unseen or unheard body not yet before the law.

Stephen Young is working on a PhD at UNSW.

Call for contributions to ‘Key Concepts’.

• 1
  Stanely Cavell, The Claim of Reason 206-7 (1972).
• 2
  J.L. Austin, How to Do Things with Words 1-11 (1962).
• 3
  Jacques Derrida, Signature Event Contest, in Limited Inc. 3-12 (1988).
• 4
  Austin, supra at 122-131.
• 5
  Judith Butler, Bodies that Matter (1993); Excitable Speech (1997).
• 6
  Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory (1988) 40(4) Theatre Journal 519-531; Gender Trouble (1990); The Psychic Life of Power 83 (1997).
• 7
  Butler, Notes Toward a Performative Theory of Assembly 176 (2015).
• 8
  Gender Trouble, 2.
• 9
  Gender Trouble, 25.
• 10
  Bodies that Matter, 232.
• 11
  Gender Trouble, 134-5.
• 12
  Psychic Life, 100.
• 13
  Excitable Speech, 144-5.
• 14
  See, e.g., Derrida’s Limited Inc., 7-12.
• 15
  Bodies that Matter, 232.
• 16
  Michael Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life (1999).
• 17
  Butler, Notes, 79-80.
• 18
  See, Judith Butler & Athena Athanasiou, Dispossession: The Performative in the Political (2013); Notes Towards a Performative Theory.
• 19
  Excitable Speech, 130.
• 20
  Judith Butler & Gayatri Chakravorty Spivak, Who Sings the Nation-State? 62-3 (2007).
• 21
  Butler, Performative Agency, 3(2) J. Cultural Econ. 147 (2010).