‘And You Can't Find Me Nowhere’: Relocating Identity and Structure within Equality Jurisprudence
| Published date | 01 June 2000 |
| Author | Davina Cooper |
| Date | 01 June 2000 |
| DOI | http://doi.org/10.1111/1467-6478.00153 |
JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 2, JUNE 2000
ISSN: 0263-323X, pp. 249–72
‘And You Can’t Find Me Nowhere’:
Relocating Identity and Structure within Equality
Jurisprudence
1
Davina Cooper*
This paper explores key tensions in conceptualizing equality. It begins
by arguing for the equality of lives lived and then goes on to link this to
equality based on power. Yet, although equality of power seems to offer
a more radical model than approaches to equality based on resources,
satisfaction, and recognition, it nevertheless is not entirely suitable,
since it too centres equality’s subject. After addressing some of the
analytical problems a subject-centred framework raises, including how
to deal with reactionary identities and practices, the paper considers
instead a structural approach to equality. This focuses on targeting
social organizing principles, while recognizing the complex
relationship between inequalities of gender, race, sexuality, and class
and inequalities associated with unpopular viewpoints or beliefs.
Finally, using lesbian and gay sexuality as an example, the paper
considers the ways in which normative-epistemological organizing
principles – proper place and the public/private – naturalize, legitimize
but also hold the possibility of undercutting asymmetries of power.
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1 The title, ‘And you can’t find me nowhere’ comes from the civil rights song: ‘If you
miss me at the back of the bus’, traditional.
*Department of Law, Keele University, Keele, Staffordshire ST5 5BG,
England
My thanks to Jon Hiller-Goldberg, Carl Stychin, Sally Sheldon, and the reviewers of the
Journal of Law and Society for their very useful, perceptive comments, to the seminar
participants at Loughborough University, University of East London and the American
Law and Society Association for their suggestions and difficult, trenchant questions, and
to Didi Herman and Morris Kaplan for their ideas and feedback on some of the themes
explored here. Thanks also to Elizabeth Corcoran for her excellent research assistance.
INTRODUCTION
This paper has been motivated by several interconnected developments.
First, the shift away from equality within radical pluralist and post-
structuralist writing on the grounds that equality – by stressing sameness –
undermines the more important norm of diversity;
2
second, the desire, on the
left, post-1990, to place as much space as possible between progressive/
radical politics and extant narratives of egalitarian Communism; and, third,
the growing interest amongst progressive forces in social inclusion which,
with its emphasis on membership and belonging rather than parity, ousts
equality as social democracy’s primary objective. The final development
motivating this paper is somewhat different. It concerns the ongoing claims
for equality: the rhetorical, strategic, and political deployment of equality by
social movements. While in some national contexts, the discourse of rights
appears more prevalent, equality for disadvantaged or oppressed social
groups remains a powerful and important demand.
Yet, even as the issue of group equality is raised, analytical problems
emerge. Does equality mean identical treatment or can equality take account
of different needs? Does equality re-embed a hegemonic norm against which
other groups’ demands for equality are judged? And does it end up
essentializing, categorizing and disciplining those groups that deploy its
terms? More specifically, which identities and activities generate legitimate
claims to equality? Is hunting or smoking, for instance, an appropriate and
valid basis? If not, what implications does the acceptance of differential
treatment have for the aspirational attainment of a (more) equal society?
These questions – indicative of the contradictions and difficulties in
conceptualizing equality – lie at the heart of my discussion. At the same
time, I hold on to the view that equality remains vitally important. And, by
equality, I encompass individuals as well as groups. Without adopting an
asocial or atomistic approach, I am concerned that equality should not stop at
the threshold of the collective, but should apply between people regardless of
their shared or disparate identities. The aim of this paper, then, is to offer an
engagement with equality that provides a way through some of the
difficulties equality currently encounters: to provide a reconceptualization
that offers a paradigm relevant to current politics.
In order to pursue the double-move of deconstruction and reconstruction,
the paper begins by addressing the question: why equality? It then goes on
critically to consider different equality paradigms, focusing in particular on
equality of power. My argument is that models of equality which centre the
subject and her pursuit of the good-life encounter several problems. In the
first half of the paper I focus on one such problem: how does equality deal
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2 J. Flax, ‘Beyond equality: Gender, justice and difference’ in Beyond Equality and
Difference: Citizenship, Feminist Politics and Female Subjectivity, eds. G. Block and
S. James (1992).
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