Out-law Discourse: The Criticai Politics of Material
Judgment
John M. Sloop and Kent A. Ono
In his essay, "Black Americans' Racial Uplift Ideology as 'Civilizing
Mission,'" Kevin Gaines (1993) recounts a tale from thè Atlanta Race
Riot of 1906. As Gaines notes, the riot ensued after a numberof newspapers described a séries of alleged râpes of white women by African
American men. In the name of justice, for four days, white mobs
attacked Atlanta's African American neighborhoods. During the riots, the résidents of "Darktown,"an Atlanta slum, protected their
neighborhood by fîghting off the white mob. After the battle was over,
twelve African Americanslost their lives and seventy suffered wounds,
but the homes of Darktown were secure. An observation by William
Crogman, a prominent African American educator of the time who
sustained injuries during the riot, highlights Gaines's taie: "Hère we
hâve worked and prayed and tried to make good men and women of
our colored population, and at our very doorstep the whites kill thèse
good men. But the lawless élément in our population, the élément we
hâve condemned, fights back, and it is [to] thèse people that we owe
our lives" (451).
This is not a taie to be rushed over. It is a taie that blurs the lines of
justice, leaving open the questions of good and bad, just and unjust,
célébration and condemnation. It reminds us that there are no absolutes, that it is the human condition to be caught within conflicting
logics of justice that are culturally struggled over. When Crogman
notes that there has been work and prayer to make "good men and
women of our colored population,"he is referringto the good hère as
it was prescribed by the norms and expectations of dominant white
culture. For Crogman, thè riots were a powerful moment in which he
realized that the "colored population" would never hâve the chance
to "be good" because of their position as always outside, as always
already positioned as immoral within a specifically prescribed notion of justice. It was instead the justice of the out-law, those who
were always already living by a code of justice outside of dominant
litigation, to which Crogman and others owed their lives. Moreover,
Philosophy and Rhetoric, Vol. 30, No. 1, 1997. Copyright © 1997 The Pennsylvania
State University, University Park, PA.
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51
from thè perspective of thè présent, it would be difficult not to judge
the out-laws as the ones on the "right"side of justice.
The implications of thè story become more complex as we investigate the positions of the various agents in relation to the law. The
difficulty one encounters when thinking through thè story is one endemie to ail discussions of justice and judgment to thè degree that no
one is ever completely "in" law or "out" of law; justice is always a
struggle. For example, because attacks on the African Americans took
place outside of legitimate legal procédures, the white mobs were
acting as far outside of the law as the African American "lawless élément"who fought back and protectedthe neighborhood.Indeed, both
groups of out-laws were fighting for a sensé of justice that made sensé
within their particularcommunity domains. A crucial différence between the two groups is the fact that the white vigilantes were fighting under a banner of justice endorsed by a System that would
ultimately, both subtly and overtly, protect and enforce their actions
and sanction punishments against the Darktown community. While
both groups were in some sensé operating outside of the law, there
are différent degrees of transgression, différent positions outside of
the law from which one is positioned. An out-law, as we will discuss
below, acts on behalf of his or her own community via a local logic
that, when translatéeinto the dominantSystemof judgment, is deemed
illegal, illogical, and immoral.
This paper is concerned with out-law discourses, however, rather
than with particular out-laws. That is, we are more concerned with
out-law epistemologies than with thè romantic idea of the gun-toting
cowboy. We see out-law discourses as loosely shared logics of justice, ideas of right and wrong that are différent than, although not
necessarily opposed to, a culture's dominant logics of judgment and
procédures for litigation. An out-law discourse is seen by those who
share its logic to be the correct form of judgment. While in some
cases practitioners of out-law discourses stand alone, desiring séparation from the dominant legal and moral System, other out-law discourse communities posit their sensé of justice as one that should
properly be shared by the dominant community. Hence, while some
out-law discourses do not contain an impérial impulse that moves
practitioners to enforce their judgments upon others, other out-law
discourses hâve goals that are in a broad sensé the same as that of
dominant culture- to make ail people "good people," to make ail
décisions "good décisions," according to the définitions implied by
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the logic of thè out-law's discourse community} In this essay, after
exploring the need for a discussion of judgment within postmodernity
(and poststructural theory) that is concerned with vernacularjudgments and the material needs of everyday life, we will argue for a
critical/theoretical project that investigates out-law discourses and
utilizes their logics to encounter and transform dominant notions of
judgment and justice and build inner-group solidarity.
The cultural crisis of authority
One of the impulses guiding this investigation is the pervasive observation, in both populär and académie conversations, that our era is
plagued by a scourge of indécision and relativity, a shift to a consciousness of simulation and the death of metanarratives- in short,
the "postmoderncondition." For example, on the populär front, in a
relatively récent Timemagazine editorial concerning the deadlocked
jury in the Menendez brothers' trial, editorialist Margaret Carlson
(1994) condemns the jury's inability to produce a guilty verdict and
sees this error as emblematic of a problem with contemporary culture. Carlson writes, "Victimology has turned out to be the winning
tactic of our era.... How did we go from a society that brooked no
excuses to one that embraces every explanation; from a society that
distinguished right from wrong to one that understandsail and punishes nothing?" (76). After providing a colloquiai history of
"victimology," Carlson observes that contemporary society has a
deep-seated need to displace blâme, which is évidence of a lack of a
moral foundation to guide our decision-making processes.
Willing to make judgments herself, however, Carlson blâmes the
inability to judge on today's "televisual attitude," the foremost example of which is the culture of talk shows. For her, talk shows provide public spaces for loud voices to make décisions about issues of
right and wrong, despite their common digressions either into unregulated yelling sessions or touchy-feely confessionals that allow
for a kind of public cleansing or therapy for mass audiences. Télévision plays such an important rôle in determining a public sensé of
justice, Carlson argues, that in the public's eyes the success of défense attorneys rests more on their ability to model persuasively the
style of télévision talk show hosts than on their ability to get to the
truth.The défense attorneyin the Menendez case, she notes, "was the
law as grand Oprah"(1994, 76).
OUT-LAW DISCOURSE
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What is most interesting and perhaps most familiär to us about
Carlson's article is that, while she points to évidence of a postmodern
culture devoid of metanarratives,she does not hesitate to make judgments herself, judgments with which many of her readers might universally agrée. Indeed,despite the académie and colloquiai discussions
of Generation X and of thè alleged decline of shared cultural values,
and despite the apocalyptic visions of Jean Baudrillard (1988), the
postmoderncondition is by no means complete; in fact, in some sensé,
much of the talk about it holds it at arms' length. Reflective of
Foucault's (1978) "repressive hypothesis" regarding discourses of
sexuality, the currentdebate over the groundlessness of judgment and
the decay of moral virtues only indicates the dominant place judgment continues to play in our cultural conversations. Even in decrying the lack of other judgments, Carlson is able to escape the throes
of postmodernism long enough to make a judgment of her own. As
John Caputo succinctly observes in his treatiseAgainst Ethics (1993),
"Obligationhappens"(15). Regardless of thè ultimate lack of grounding and regardless of the philosophical contingency of obligations,
"they fly up like sparks- always and everywhere, wherever you are.
Es gibt: it is a given. Obligation happens" (24). And with obligation,
cornes judgment.2
For those theorists and critics who see as one of their functions an
improvement of thè politicai conditions of everyday life, the stakes
in a discussion of judgment in an environment of theoretical and politicai indécision and ambiguityare high because this indécision seems
to occur on only one side of thè politicai spectrum (the left), leaving
the grounds of judgment open for claim by the right. That is, because
a large segment of thè politicai spectrum feels incapable of articulating its "good reasons" for a particularjudgment, any given debate is
absent a powerful and confident countervoice and, hence, community judgments corne to be made with less criticai inquiry and reflection. As Chantai Mouffe notes in speaking about the strength of the
Europeanright, "[Judgment]is much more difficult for thè moderate
right and for the left than for the radical right. I submit that the growth
of the extreme right in several countries in Europe can only be understood in the context of the deep crisis of politicai identity that confronts liberaldemocracyfollowing the loss of the traditionallandmarks
of politics" (1993, 4). While the radical right makes public judgments,
the left critieizes both its ability and its right to judge.3 In short, the
discourse of académie poststructuralthéories leads to what Lawrence
Grossberg(1992) dubs the twin crises of "représentation"(leftist theo-
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rists fear the politics of representing the other) and of "authority"
(given that there is no ultimateArchimedianpoint from which to judge
or make 'truth'Claims,theorists and critics are skittish about making
any final décisions) (359-63).
Again, the oddity of this contemporary discussion is that while
both the académie left and populär critics bemoan the death of judgment and values, everydayjudgmentscontinueto thrive,based on what
Caputo sees as an élément of the human condition. If a fuller sensé of
public discussion is to survive, ail parties within the discussion must
remember that obligation happens, that judgment happens, and that
the variety of materialjudgments that occur in everyday life offer the
possibility for counterhegemonic décisions versus postmodern indécision. Hence, it is toward an investigation of the occurrence of judgment on the level of everyday life, and thè politicai deployment of
thèse judgments, to which we direct our investigation of out-lawjudgments. Rhetorical theorists and critics are uniquely positioned to address this line of research because the study of rhetoric implies the
study of discourse and judgment on the level of everyday life; it implies, in short, a materialist's conception of judgment.4
Hence, this project is not an investigation of whatjudgment should
be; it is not directed at the création of manuals of judgment; it does
not specify particular judgments as good or bad; instead, it concerns
the drawing together of judgments made in the terrain of everyday
life and the deployment of thèse judgments and logics of judgment
elsewhere. Ultimately, we will argue that the rôle of criticai rhetoricians is to produce "materialist conceptions of judgment," using
out-law judgments to disrupt dominant logics of judgment. We will
proceed by briefly discussing contemporary poststructural théories
of judgment that claim a basis in the rhetorical tradition and that help
us explore the benefits to be gained through investigations of out-law
discourses (i.e., Jean-François Lyotard's "just gaming" and Chantai
Mouffe's "radical demoeraey") and will then outline the characteristics of out-law discourses and the implications of their investigation.
Obligation happens everywhere, even with "we theorists and critics,"
and we should not deny its cali.
Rereading phronesis: Lyotard and Mouffe
I thinkthatthe thinkerI amdosest to in this regardis Aristotle,insofar
as he recognizes- andhe does so explicitlyin the Rhetoric,as well as
in the NichomacheanEthics- thata judge worthyof thè namehas no
OUT-LAWDISCOURSE
55
true model to guide his judgments, and that the true nature of the judge
is to pronouncejudgments, and therefore prescriptions, just so, without
criteria. This is, after ail, what Aristotle calls prudence. It consists in
dispensing justice without models. It is not possible to produce a learned
discourse upon what justice is. (Lyotard 1985, 25-26)5
This increasing dissatisfaction with thè abstract universale of the Enlightenment explains the rehabilitation of the Aristotelian concept of
phronesis. This 'ethical knowledge,' distinct from the knowledge spécifie to the science (episteme), is dépendent on the ethos, the cultural
and historical conditions current in the Community,and implies a renunciation of ail présence to universality. (Mouffe 1993, 13)
In Jusî Gaming and The Différend, drawing upon Aristotle's conception of prudence, Jean-François Lyotard provides theoretical analyses of ethical Systems and epistemologies, attempting to understand
how philosophers might construct an idea of judgment without reverting back to modernist assumptions (e.g., a fîrm grounding for
judgment, metanarratives) and without falling into the postmodern
miasma of judgmental indécision. In brief, Lyotard wishes to find a
way to accent and articulate the différences between various viewpoints and to accept such différences by articulating the différend ("a
case of conflict, between [at least] two parties, that cannot be equitably resolved for lack of a rule of judgment applicable to both arguments. One side's legitimaey does not imply the other's lack of
legitimacy" [1988, xi]). Rather than beginning with a set of moral
principles, Lyotard suggests that "one's responsibility before thought
consists ... in detecting différends and in finding the (impossible)
idiom for phrasing them" (1988, 142). That is, rather than a legal
System that translates the différent "languages" (language games) of
each disputant into a single language, a unitary System of judgment,
litigation places phrases in compétition and requires a choice between
them. In addition to resolving the conflict, the décision affirms the
idiom in which the phrase is spoken and always already, and by necessity, rules in protection of order. The différend* then, is not simply
différence in judgment, but an irreconcilability between two différent logics of judgment. By insisting on eliminating ail metanarratives
of litigation and justice, Lyotard éliminâtes judgments produced prior
to actions. His position does not disregard the need for judgment,
however, but rather seeks a form of judgment that follows conflict
rather than précèdes it.6 Hence, for Lyotard, it is more important to
preserve the différend by way of not having a prédéterminée idea of
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justice (or how to get it) than it is to hâve an efficient (or liberal)
social body.7
Moreover, Lyotard suggests that critics/activists look for silences
to phrase and actively solicit conflicts in the interest of disputation.
In the absence (or ignorance) of a metalitigational principle, prescriptive rules for deciding outcomes are eradicated. Provisionai rules are
created within the context of the dispute, without ever becoming rules
of thè game of disputation.As Bill Readings, a proponentof Lyotard's
work, notes, "Indeterminate or reflective judgment is required, in
which the imagination experiments, inventing ways of understanding
the event. It is thus judgment which takes place in the explicit absence of criteria.Indeterminatejudgmentdeals with the ... event rather
than with its constative content" (1991, 106).8 Lyotard insists consensus is, and should be, impossible because consistency nécessitâtes the élimination of some positions as the basis for the affirmation
of others. Lyotard's interest, then, is with the assurance that the notion of what is just must always be open, that the différend between
disputantsmust be highlighted and allowed to flourish. Lyotardwould
hâve disputants make their cases in front of a tribunal who knows
that justice is a way of linking phrases. "In this sensé," as Readings
notes, "justice remains always in the future, yet to be determined.
The multiplicity of justice evoked by the heterogeneity of language
... is regulated by a justice of multiplicity" (125). Hence, Lyotard
proposes that the project of philosophy is to create a politics of
nonprivilege, a politics that respects the différend and does not allow
prescriptive choices of one phrase over ail others.
While Lyotard's understandingof incommensurability,of out-law
judgments, takes us a long way toward our goal of working critically
with various forms of judgment, it has a bias toward change (rather
than permanence) that we suggest needs to be reversed. While we are
certainly not championing permanence, a move to engage the préservation of some ideas critically at least momentarily, seems to us not
only more clearly reflective of how people act, but also in the best
interests of people in pain. Hence, the difficulty of Lyotard'sposition
is that its transitorynaturewould work best in a "worldwithout pain."
On the surface, chargingLyotardwith the constructionof such a world
would appear absurd.After all, it is the memory of the pain suffered
by others at Auschwitz that drives Lyotard'smove to the différend.9It
is not a failure to recognize the lived pains of past litigations that
makes Lyotard's a world without pain; instead, it is that his "theory"
OUTLAWDISCOURSE
57
of thè différend downplays thè construction of rhetorically transcendent judgments and identities built on modernist conceptions of ethics and subjectivity. In effect, Lyotardconstructs a philosophical idea
of justice rather than one built out of the material fabric of culture.
While it might be obvious for Lyotardand others standing outside of
any particulardispute to "réfute the préjudice anchored in the reader
by centuries of humanismand of 'humansciences' that there is 'man/
that there is 'language,' that the former makes use of the latter for his
own ends, and that if he does not succeed in attaining thèse ends, it is
for want of good control over language 'by means' of a 'better' language" (1988, xiii), this would not be obvious to many people struggling to maintain their existences through modernist identities.
While Lyotard's theory might make thè mere expression of what
would otherwise be silent wrongs enough, for others, those "living in
pain," expression cannot be enough; for some, only the implementation of their own System of right and wrong, their own litigation, will
suffice (see Spivak 1988, "Can the Subaltern Speak?"). In the vocabulary of Caputo, the problem cornes when one acknowledges the
necessity of judgment ("judgmenthappens") without acknowledging
the lived expérience of obligation ("obligation happens"), obligation
being a seemingly permanentstate even if it does indeed perpetually
change. When one recognizes that some people continue to hâve felt
obligations backed by their belief in overarchingmetanarratives,one
can no longer advance a theory that ignores the existence and needs
of such people. Indeed, studying the phronetic Statements and assumptions of daily life follows Lyotard's efforts to locate and speak
the as-yet-unspoken phrase.An investigation of out-law discourses is
an investigation of thèse material judgments. A materialist conception of judgment must recognize that, even while theorists and critics
become more comfortable with the de-essentialization of subjectivities, judgments continue to be made as if those subjectivities were
essential.
The position of Chantai Mouffe, represented by the quotation that
heads this section, appears towardthe beginning of The Return ofthe
Politicai, her collection of essays that continues the project initiated
in Hegemony and Socialist Strategy, and significantly, the first work
in a séries being published by Verso under the title 'Thronesi s." In
their joint work, Ernesto Laclau and Mouffe argue that progressive
values such as social democracy, once freed from foundational bases,
can be rearticulated on cultural, contingent bases. Such bases allow
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thè left to maintain a claim on values and judgments while simultaneously arguing for thè ultimate demise of metanarrativalexplanations. The move to reappropriatephronesis as the grounds upon which
such a provisionai set of claims can be articulated is an attempt to
find a cultural/community,local, based model of judgment.10
In abandoning "any kind of essentialism- either of thè totality or
of the éléments" (1993, 7) and hence undermining the universalism,
rationalism, and individualism that hâve traditionallyundergirdedliberal theory, Mouffe rethinks catégories of politicai theory such as
citizenship and pluralism. As a resuit, she constructs a theoretical
world in which disagreement is never eliminated: "In politics, the
public interest is always a matter of debate and a final agreement can
never be reached; to imagine such a situation is to dream of a society
without politics. One should not hope for the élimination of disagreement but for its Containmentwithin forms that respect the existence
of liberal démocratie institutions" (SO).11Mouffe respects pluralism
based on identity ratherthan on transcendenceand argues that a modem democracy, on any given issue, must be open to various perspectives, each coming from people who identify themselves with respect
to the particularissue.
Mouffe admits, however, that at some point, décisions will have to
be made (and législation put into play) if a community is going to
maintain itself. Hence, there will always be an external "they"to the
"we" of community acting as a definitional mirror and gadfly. She
writes, "Antagonistic forces will never disappear as politics is characterized by conflict and division. Forms of agreementcan be reached
but they are always partial and provisionai since consensus is by necessity based on acts of exclusion" (1993, 69). Like Lyotard,Mouffe
also recognizes thè ultimate groundlessness of any claim to judgment
and thè ultimate inability for any System of litigation to transcend
time and locale; however, she wisely sees the necessity of litigation
(a seeming permanent litigation) and is willing to see debate over
litigation as one way groups might create provisionai alliances to construct a better social order.
Mouffe's solution to thè problems of a démocratie society is effectively contained in her définition of citizenship as "a common
politicai identity of persons who might be engaged in many différent
purposive enterprises and with differing conceptions of the good, but
who accept submission to thè rules prescribed by thè respublica in
seeking their satisfactions and in performing their actions" (1993,
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69). Mouffe rightly emphasizes that such a définition protects the
citizen from becoming the "passiverécipient of spécifie rights . . . who
enjoys the protection of the law" (69) by instead constituting the citizen as part and parcel of the makeup of the respublica.
One could argue that Mouffe's rejection of "thè idea of a politicai
Communityunified by an objective moral order" (1993, 55) is problematic to the degree that not everyone accepts this idea at the level
of lived expérience (i.e., it "doesn't work"). That is, Bill Bennett,
Dan Quayle, Randall Terry,or Minister Louis Farrakhanwould consider thè idea that the world has no moral order a ludicrous proposition. Just as Lyotard'smodel does not aecount sufficiently for changes
that continually reshape the field of judgment, Mouffe is too willing
to place the republic and its laws before people's "lived" expérience.
For example, her "philosophy"overtly disallows particularperspectives she sees as too "partisan"for radical demoeraey. She writes,
Moderndemoeraeyrequirestheaffirmationof a certainnumberof 'values' which,like equalityandfreedom,constituteits politicaiprinciples.
It establishesa formof humancoexistencewhichrequiresa distinction
betweenthe publicandthe private,the séparationof churchandState,
andof civil andreligiouslaw....Hencethè problemposed by thè integration of a religion like Islam which does not aeeept thèse distinctions....The rise of variousformsof religious fundamentalismof
Christianoriginin the USA ... indicatethatthe dangerdoes not come
solely fromoutsidebut also fromourown tradition.The relegationof
religion to the privatesphère,which we now have to make Muslims
aeeept, was only imposed with great difficulty upon the Christian
Church.(132)
What are dangers to Mouffe are acts of survival for others. Indeed,
while we find Mouffe's argumententirely acceptable in theory, it is
her willingness to ignore, to disgregard(or, at least, not to "play up"),
the judgments made by out-law communities such as Muslims or early
Christians that seems not only to imply a willingness to ignore "lived
identities" but also to ignore the ways in which the voiees of those
out-laws may encourage "useful," "positive" changes in other communities.
Out-law discourses
While this section will concern out-law discourses and the purposes
to which critics can put the investigation of out-law discourses, we
should be careful again to note that we are not arguing that there is
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not a rôle for thè émergence of treatises dealing with how judgment
should be made, nor are we arguing against the poststructuralistassumptions that undergird thèse projects. What we are doing is suggesting thatjudgment must be understoodand discussed as it happens
materially and that such discourses, once given voice in public forums, can hâve politicai conséquences that go beyond the ideas of the
critic. Below, we will outline both the characteristics of out-law discourses and the purposes toward which their investigation could be
put.
Out-law discourses: Material and vernacular
To the degree that a theory of justice is embedded within philosophical discourse rather than that of rhetoric and the practices of everyday life, of people in action, it will act against thè very idea of
indeterminacy and the actual living we do. In his "A Materialist's
Conception of Rhetoric" (1982), Michael McGee notes that "if history matters at ail to rhetorical theory, and I am convinced that it
does, it is material history, not the history of ideas"; in effect, McGee
asks critics to corne to understandrhetoric as a practice ratherthan as
a définition and to conceive of the différence between rhetoric and
philosophy, not in terms of style versus logic, as is common in public
parlance, but in terms of material versus ideal relations (45). In turn,
we are suggesting that if judgment matters at all to rhetorical theory,
and we are convinced that it does, it is materialjudgment, not a history of the ideas aboutjudgment. In the fîrst place, then, out-law discourses concern judgments made in the practice of everyday life.
In the second place, because we are interested in logics of judgment outside of dominant Systems of judgment, we are necessarily
interested in those judgments made through vernaculardiscourse in
particularmarginalized communities with localized Systems of judgment. Out-law discourses are found in the vernacular,the practice of
everyday life, and oppose or are separate from dominant discourses.
Providing examples of out-law discourses can be tricky business
if only because, for the most part, by définition, they are not part of
the overall public discussion. There are cases, however, when, without the prompting of académie critics, out-law discourses serve local
purposes at times and at others resonate within dominant discourses,
disruptingsedimented ways of thinking, transformingdominantforms
of judgment. For example, when Malcolm X's discourse, a discourse
that grew out of an African American vernacular tradition, became
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61
readily available to the dominant public and was consumed by various communities outside of the African American community in generai and of the Muslim Community in particular, it crossed other
vernacularcommunities and spreadout to transformeven nonmarginalized groups. Regardless of intent, then, at times vernacular discourses disrupt dominant discourses and take possession of dominant communities. Even thèse disruptive practices, however, may
signify a rearticulation of a dominant discourse onto a vernacular
one. At the moment of Malcolm X's entry into the discourses of dominant society, through commodification, the complicated natureof his
identity became iconic for young African Americans just beginning
to learn about him for the first time. Hence, for young African Americans searchingfor a history of résistanceto racist oppression, Malcolm
X may represent "the hâte that hâte produced."
A similar example would be that of Monster Cody Scott's Monster: Autobiography of an LA. Gang Member, a best-selling work
that provides insights into the thought processes and values of one
raised within the gang culture of south-central Los Angeles (Shakur
1993). A readerof the text is immediately confronted with a radically
disjunctive understandingof justice, a System of values différent in
composition and order from those of the dominant culture. In effect,
in taking such texts seriously, one is placed into the position of having to recognize momentarily the contingency of one's judgment and
also one's logic of judgment, to compare it to another,and, ultimately,
either to renew or to transformone's own values and judgments.
Out-laws are discoursesor phrases in dispute, not individuaiactors
The notion of the out-law carries with it thè baggage of a history of
romanticism, the image of the gun-toting cowboy with the soft heart.
Out-law, as we are using it hère, should be taken as a description, not
of individuals, but of discourses. The task is not to seek out the ethics
of Charles Manson or judgments and sentences based on the Book of
Dahmer. Instead, we are suggesting that critics look toward an entire
body of discourse in which speakers are situated and constituted. In
his summaryarticle on the history and meaning of the term discourse,
Paul Bové, following the leads of Michel Foucault and Gilles Deleuze,
notes that discourse is made up of "the organized and regulated, as
well as the regulating and constituting, functions of language that it
studies: its aim is to describe the surface linkages between power,
knowledge, institutions, intellectuals, the control of populations, and
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thè modem state as thèse intersect in the functions of Systems of
thought"(1990, 54-55). Hence, in an attemptto understanddifférent
ways of judging actions, différent ways of understanding right and
wrong, we must turn not to individuals, but to the commonsensical
assumptions that make up the daily lives of the individuals who practice a discourse.
Because out-law discourses are indeed discourses, no individuai
is completely an out-law or an in-law. Indeed, we are ail defîned within
cultural discourses and make up a part of that discourse, and no one,
no discursive formation, is ever absolutely "in" or "out"of law but is
instead an influence in the constructionof law itself and is constructed
within the law itself. We search for out-law discourses, then, and not
out-laws. Indeed, as Laclau and Mouffe imply, if one puts one 's focus on individuals ratherthan on discourses, one makes it more likely
that a project will fail because thè failure of thè individuai implies
the failure of the discourse (1985, 132-33). Instead, by focusing on
discursive assumptions,we are focusing on an overall scheme of judgment that is outside of, yet permanently tied to, the ideas and words
of individuals.
For example, it would not be the rôle of a critic to study Monster
Cody Scott in orderto understandhis spécifie ideas or messianic prescriptions of daily life. Instead, in searching for out-law discourses,
the critic would look at the overall discourse of Scott and others in
orderto understandthe commonsense methods and values represented
in their judgments and in their routes to judgment, the local judgments and values of everyday life.
Out-law discourses are not necessarily progressive
We do not mean to suggest that out-law discourses are by necessity
progressive, hence worthy of criticai affirmation.Critics must remain
open to the possibility that the logics of judgment they find within
out-law communities might counter the forms of judgment that they
would like to see invoked within a given community. Hence, vernacular discourses of the out-law can be progressiveor regressive,depending on the goals and politics of the critic and the out-law discourses
under study. The critic must be open to listening to the logic of the
judgment of the out-law, and then, implicating himself or herself in
the judgment process itself, the critic must judge whether or not the
out-law discourse is one that he or she wants to bring to the fore,
OUT-LAW
DISCOURSE
63
wants to bring out as a criticai commentar/ that can act as a potentially disruptive practice.
Criticai out-law discourses provoke the social imaginary
We are suggesting that one possibility for the investigation of out-law
discourses is the construction of logics and forms of judgment that
disrupt commonsense ones. As we noted above, out-law discourses
can be disruptive without the aid of the critic. That is, peoples whose
identities and lives are threatenedhâve historically always found some
way to continue existing, to change it, to intervene politically through
the articulation of some idea or notion- out-laws, and out-law discourses, tend toward survival. And it is thèse automatically strategie
essentialisms, as provisionai as they may be, that oblige the out-law
to make particularjudgments and to translatethe logic of those judgments to others.12That is, when threatened symbolically or physically, a being or group will preserve its identity- either through the
création of new ways to understandexpérience (e.g., new narratives
of the future) or through physical force (e.g., the actions of the outlaws of Darktown). One of the rôles of institutional académies should
be to attempt to make those cracks and divisions evident and to aid,
through the (re)presentationof out-law discourses, the displacement
of dominant litigation with other logics of judgment.
Yet, critics are in the position, after studying various forms of
out-law judgments, to bring the out-law discourses back to others to
be used as provocateurs for the social imagination, a way to disrupt
existing Systems and logics of judgment. That is, an investigation of
judgment on a rhetorical level not only encourages the out-law to use
discourse stategically, but also encourages the critic to bring the ideas
andjudgments of the out-law back to the center, whatever that center
may be, with the hopes that such judgments, and the litigations they
imply, will disrupt the forms of judgment being made on the center.
Similar to Elspeth Probyn's "feminism with attitude," we are arguing that it is the task of those interested in rhetoric and culture to
encourage the use of rhetoric by ail, especially those who hold to
out-law discourses that the critic deems positive, in order to cultivate
a "judgmentwith attitude."Probyn notes that she is "broughtback to
the importance of the imagination.. . . In order to realize the self as a
'limit-attitude' where we work at the very edges and ends of ourselves in order to envision change, we must engage our imaginations
more fully" (1993, 6). Hence, when encountering a situation that calls
64
SLOOPAND ONO
for a dispute between two or more irreconcilable positions, we do not
suggest that it is the rôle of the philosopher or rhetorician to bear
witness to the différend',rather, one encourages others to construct
judgment as a tactic, an imaginary space in which one plays with
time by futuringjustice, rendering the justice of a particularout-law
discourse a possible model for a community 's practices of litigations
(akin to Lyotard'sfutureanterior).One does not create notes for "how
to judge" handbooks;instead, one encouragesthe use of rhetorichandbooks in order to make particular logics of judgment instructive to
the institutional practices already in play.
Moreover, in addition to promoting rhetoric as the means of persuasion, critics interested in the investigation of alternative models
of judgment might begin to highlight the logics of particularout-law
judgments. That is, in place of, or in tandem with, the study of the
rhetoric and ideology of dominant culture, one might investigate the
discourses of the vernacular,of the everydaylife of out-law discourses,
in order to bring back a logic of obligation and judgment that might
disrupt the logic and judgment of dominant cultures, dominant and
encoded Systemsof litigation. For example, understandingthe out-law
discourses used by/created by the out-laws of Darktown in 1906, and
bringing those logics to the larger public (i.e., the public satisfied
with existing Systems of litigation) in a sympathetic light, may hâve
led to changes in the public understandingof race in legal and mass
cultural domains.
This task of disruptioncan be both a criticai reading/writingproject
and an ethnographie project. In terms of a criticai reading project, we
are referring to thè movement of thè focus of analysis from dominant
mass-distributed texts (e.g., the New YorkTimes, People, CBS News)
to a criticai focus on the texts of local cultures. Ratherthan focusing
on the way in which dominant ideology is structured (an ideology
that exists in litigation), thè focus would be on thè textual residue of
out-law discourses. Once coming to understandthe judgments made
by others and the logic of thèse judgments, one is in a better position
to attempt to promote counterintuitive logics as alternatives to existing Systems of litigation. In her essay on Foucault and the function of
rhetoric, Barbara Biesecker imagines just such a space for rhetoric:
"Operatingat the level of publics but in a fashion analogous to that of
the 'spécifie intellectual,' thè criticai rhetorician's task is to 'make
thèse virtualities visible' by thè strategie and deliberate codification
of those points of résistance" (1992, 361).
OUT-LAW
DISCOURSE
65
For example, one way to widerstandculturally thè meaning of hiphop music in dominant culture would be to study "gangsta rap"
terministically, in mass-mediated discussions of its existence and usage within dominant culture. While this would go far to provide an
understandingof the rhetoric of censorship or cultural discipline, it
would do little to provide an understanding of a logic of judgment
other than that of the culture presently discussed in majorJournalsin
the academy. However, if one were to study judgments concerning
"gangsta rap" as those judgments appear in newspapers and magazines listed by such indices as the Reader's Guide to Periodical Literature and also ones that provide judgments and logics of judgment
that run counter to those prescribed by existing law and culture, critics would be able to frame alternative Systems of judgment, a litigious imaginarythat would challenge and give rise to the possibilities
of alternative litigations.
Similarly,thè rise of contemporaryethnographyallows for the radical possibility of the re-presentation of alternative Systems of judgment in politically performative terms. As Dwight Conquergood
(1992) notes in his review of contemporary ethnography (i.e., ethnography that takes other beliefs seriously but sees itself as radically
contingent), rhetoricians hâve much to gain from ethnography,"particularly understanding of the cultural constructedness of key concepts such as 'reason,' 'the rational,' 'thè logicai,' 'argument,'
'évidence,' and so forth. ... Ethnographycan help unmask the ethnocentric underpinnings of the privileging of 'reason' that has characterized rhetoric in thè West from Piato to Perelman" (81). How do
ethnographersunmask the logic of dominant culture? Ethnographers
must take various ways of judging and play with them at home, disrupting common sensé. Alternative logics, once understood, might
go far toward the displacement of existing législations, existing Systems of judgment. This politicized sophistry does not have the purpose of creating a betterinformeddominantculture, but instead serves
the purpose of transformingcultural logics as a whole.13
Conclusion: Out-laws on the run
We have attempted to suggest hère that it is the rôle of ail critics
interested in public politicai change to investigate the judgments and
forms of judgment that operate materially in various communities
and subcommunities in contemporaryculture. By investigating judg-
66
SLOOPAND ONO
ments as they occur materially, the critic pulls forth existing logics as
a space for the imagination of différent ways of operating and talking
generally. Moreover, admitting the necessity of obligation and judgment, it becomes the rôle of critics to acknowledge their positionality
within politicai structuresand to act to disruptpoliticai forces in contemporary culture. While no single out-law discourse is necessarily
résistant, ali are potentially so, when placed against more dominant
publics and given the right combination of éléments. Moreover, we
are not suggesting that any given out-law discourse could ever provide a logic that would satisfy ail communities, ail peoples. Indeed,
the logic of thè out-law must constantly be searchedfor, broughtforth,
given the opportunity to disrupt operating discourses and practices
that always work to enable and confine. The out-law always lurks in
the distance and in the forefront, challenging us to rethink our ways
of operating, our forms of judgments, our logics. It is our task to
meet the challenge of thè out-law, to investigate the reasons for our
discomfort with the out-law's judgment, and to enact différent ways
of thinking and living.
John M. Sloop
Department of CommunicationStudies & Théâtre
Vanderbilt University
Kent A. Ono
American Studies Program
and
Asian American Studies Program
University of California, Davis
Aknowledgement
Versions of this essay were previously présentée at the Ninth SCA/AFA Conference
on Argumentation, Alta, Utah, August 1995, and the "Incorporations"Conference,
University of Illinois, Urbana, March 1996. The authors would like to thank Maurice
Charland and Bruce Gronbeck for their helpful comments on the essay. John Sloop
would like to thank the University Research Council of VanderbiltUniversity for its
support of this project.
Notes
1. In his Against Eîhics (1993), Caputo draws a distinction between heteromorphism and heteronomism. Heteromorphism,représentée by theorists such as Nietzsche
and Deleuze, "is organized around a paradigm of discharge and dehiscence, of the
overflow of an ail too great fullness" (56). In heteronomism, as représentée by theorists such as Lyotard, "one is not trying to be like God, but like Abraham, under the
law, before the law, and one lets the other occupy the position of the Most High" (60).
OUT-LAW DISCOURSE
67
In heteromorphism, one generously respects others but holds oneself forth as correct.
In heteronomism, one is more in the position of always holding thè other, thè différent, as correct. As investigators of the politics of everyday life, we are arguing for a
third position, one that reflects how judgment occurs. When one sees ne 's judgments as correct, one is not generous, but wants others to acknowledge the rightness
of the judgment. Hère, then, after judging the out-law, thè rhetorician aids in the
practice of the out-law who wants others to take up his/her judgments as potential
litigation.
2. Condit (1987) makes a similar set of observations about public discussions of
morality. Condit argues that morality must be seen not as a philosophical concept, but
as something argued about in public places, Streetcorners, and coffee shops.
3. Probyn (1993) writes, "As the left continues to attack itself from within, a growing public discourse of 4new traditionalism' actively articulâtes care and community
to the New Right.... Transparentas it may seem, and as sélective as their 'caring' is,
the right's reclaiming 'fundamental' values constitutes an appealing platform" (508).
The right has located an anchor in the sea of postmodern politics that is seductive,
especially to possible converts who proclaim nonpartisanpoliticai positions. In short,
while everyone has politicai, ideological, and social Investments in how judgments
are made, those standing on traditional ground, even if that ground is only contingently "soft" and cultural, are far more likely to be effective politically.
4. We are directly playing off of McGee's "A Materialist s Conception of Rhetoric" (1982). Our position hère maintains a consistent and politicai focus on material
conditions as necessary to the production of effective theorizing.
5. We will not be debating the correctness of Lyotard's (or Mouffe's) reading of
Aristotle. Instead, we are quoting such passages in order to point out their attempts to
make explicit links to the history of rhetorical thought.
6. We celebrate the lack of closure in narrativeswithout fixed endings - a reversai
of the patriarchalrule of closure. Bennington (1994) summarizes Lyotard's position:
"For Lyotard, the situation is not that the rules already exist, with the task of artist or
architect (but also of politician and scientist ...) being to produce 'cases' fitting thèse
rules, but to Experiment', to produce cases for which thè rule must subsequently be
described by the reflexive judgment" (179).
7. It is in this sensé that Mouffe notes, "Lyotard finds it necessary to abandon
politicai liberalism in order to avoid a universalist philosophy" (1993, 9).
8. Readings (1991) exaggerates Lyotard's move toward indeterminacy by arguing
that Lyotard provides a way to affirm the study of canonical texts at the expense of
affirming marginal positions. Readings's Lyotard provides readers freedom to return
to reading the canon for its own sake. He calls for a return to a falsely idyllic past
when the canon did not representethnocentric, masculine, heterosexist, and colonialist
domination (138-39).
9. We are not talking about authorial intent hère. We are simply pointing out that
the specter of Auschwitz and Nazism in generai haunts one 's reading of The Différend.
10. As Lauclau (1988) explains in response to criticism of Hegemony and Socialist
Strategy, while traditional moral values may fail postmodern society, contemporary
critics fail "to introduce différent values" (66) that really work. In order to remedy
this lack, he défends his work with Mouffe, which is supposed to establish an ethics
without foundations:
Abandonmentof the myth of foundation does not lead to nihilism, just as uncertainty as to how an enemy will attack does not lead to passivity. It leads, rather,
to a prolifération of discursive intentions and arguments that are necessary, because there is no extradiscursive reality that discourse might simply reflect ...
Humankind, having always bowed to external forces- god, Nature, the necessary laws of History- can now, at the threshold of postmodernity, consider itself for the first time the creator and constructor of its own history. The dissolution of the myth of foundation- and the concomitant dissolution of the category
*subject*- further radicalizes the emancipatory possibilities offered by the Enlightenment and Marxism. (79-80)
68
SLOOP AND ONO
Laclau does not cali for a complete abandonmentof morals and judgments, nor does
he cali for a returnto transcendent values; instead, Laclau and Mouffe, after dissolving the "subject" and historical laws, posit a theory of politics and judgment based
upon (and constitutive of) humans.
1 1. The abandonment and/or élimination of politics, altogether, is the subject of
Readings's (1993) introduction to Politicai Writings: Jean-François Lyotard.
12. If one looks closely, one can see the judgment of the outlaw- more pointedly,
the outlaw with foresight- beginning to appear in the current theoretical landscape.
Hence, in discussions of "strategie"essentialisms, from Spivak's (1988) initial discussions of the Subaltern Studies Group (197-221) to Niranjana's (1992) advocacy
of affirmative deconstruction and, more recently, to Probyn's (1993) notion of "feminisms with attitude/* the outlaw appears.
13. In a similar fashion, Martin (1992) notes, "What can thè politicai rôle of ethnography be in attempts to achieve social change? One of the uses to which ethnography in anthropology has been put in the last several years is the détection of 'résistances,' counter-hegemonic visions and practices" (409). Such practices are then
brought back to the "center"as a form of comparison and disruption. One should also
see Conquergood's "Rethinking Ethnography" (1991) for a description of the relationship between rhetoric and ethnography, as well as the politics of ethnographie
research.
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