Juridical notions of power appear to regulate political life in purely negative terms—that is, through the limitation, prohibition, regulation, control, and even “protection” of individuals related to that political structure through the contingent and retractable operation of choices. But the subjects regulated by such structures are, by virtue of being subjected to them, formed, defined, and reproduced in accordance with the requirements of those structures. You are probably used to thinking of power, or the law, as regulating behavior, as telling you what you are not, what you may not do, where you may not go. Or, in this case, what women may not be, how they may not act, what they may not become. But subjects are also “formed, defined, and reproduced in accordance with the requirements of those structures.” What does this mean? Butler is arguing here that power not only regulates who we are not, but also forms who were are (not simply as individuals, but as groups—women, for example). Take maternity leave as an example. Women give birth, but then in many countries women are presumed to care for children, so while women may be penalized for taking time off of work to care for children, men may take bigger career risks by leaving their positions for extended child care (see Fried, Taking Time, for example). By limiting what people can do, this also creates and supports a gendered division of labor in the home, with women doing more childcare work even when new parents may have planned to share the work evenly. More time with a child may in fact strengthen that bond, develop better nurturing skills, etc. More time in the workplace may lead to promotion, higher pay, etc. And so, despite our individual choices, these “laws” may in fact create what then appears to us as natural.
Perhaps the subject, as well as the invocation of a temporal ‘before’, is constituted by the law as the fictive foundation of its own claim to legitimacy. The prevailing assumption of the ontological integrity of the subject before the law might be understood as the contemporary trace of the state of nature hypothesis, that foundationalist fable constitutive of the juridical structures of classical liberalism. The performative invocation of a nonhistorical ‘before’ becomes the foundational premise that guarantees a presocial ontology of persons who freely consent to be governed and, thereby, constitute the legitimacy of the social contract .This may be the trickiest passage in the book, so let’s take it one step at a time. “Perhaps the subject, as well as the invocation of a temporal ‘before’, is constituted by the law as the fictive foundation of its own claim to legitimacy.” Butler here is pointing to the way that we imagine a natural state before “the law”, before the labels and words that we use to define it. So that we often imagine that there is a natural male and female state in nature that is then only shaped and molded by our language, customs, and the like. This is the temporal ‘before’, the imagined natural state. Yet we have now way of knowing this “natural state”, and certainly our efforts to uncover it are marked by our cultural understanding of gender. It is, then a “fictive foundation.” When we imagine these natural male and female bodies, some of the cultural overlay looks just like something added on to a natural difference. This becomes the “foundational premise” upon which our concepts appear to us as natural and right, or perhaps in need of change, but as residing close to the world of the natural. If you’ve learned the sex/gender distinction—that sex is biology and gender is culture/social, this is what Butler is trying to undo. We can’t access that ‘sex’ except through ‘gender’, and so it exists in our imaginations and is shaped by our understanding of gender.
If one ‘is’ a woman, that is surely not all one is; the term fails to be exhaustive, not because a pregendered ‘person’ transcends the specific paraphernalia of its gender, but because gender is not always constituted coherently or consistently in different historical contexts, and because gender intersects with racial, class, ethnic, sexual, and regional modalities of discursively constituted identities. Intersectionality—the many layers and aspects of identity that are complexly intertwined—is highlighted here. To create a category ‘woman’ often ignores the widely different experiences and identities based on many other aspects of our social lives.
The presumption of a binary gender system implicitly retains the belief in a mimetic relation of gender to sex whereby gender mirrors sex or is otherwise restricted by it. Butler points back to the sex/gender distinction here, showing that the belief in a binary (2 category: male/female) gender system works under the assumption of that natural, nonhistorical notion of sex.