cornell - gender difference and systems theory

Enabling Paradoxes: Gender Difference and Systems TheoryAuthor(s): Drucilla CornellSource: New Literary History, Vol. 27, No. 2, Problems of Otherness: Historical andContemporary (Spring, 1996), pp. 185-197Published by: The Johns Hopkins University PressStable URL: http://www.jstor.org/stable/20057346 .

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Enabling Paradoxes:

Gender Difference and Systems Theory

Drucilla Cornell

I have argued elsewhere that there is a philosophical alliance

between Niklas Luhmann's systems theory and what I have renamed

deconstruction?the philosophy of the limit.1 This alliance turns

not only on shared philosophical roots in French phenomenology but on the replacement of grounding principles with grounding paradoxes. Luhmann explicitly argues that systems theory can have no higher level

grounding of itself beyond the analysis of the operations of the systems themselves.2 The paradox is that one only knows a system as a system from within it and by distinguishing it from other systems, but there is

no system of all systems in which we could ground the analysis of systems

theory. Derrida's philosophy of the limit, as I have interpreted it, is in

alliance with this position in two senses: first, the philosophy of the limit

is an articulation of the philosophical limit of any attempt to ground

reality in an appeal to a system of all systems or, on the contrary, in a

transcendental subjectivity. The limit of philosophy is, in Luhmann's

sense, a limit to the traditional philosophical project of grounding sociological analysis in either a normative description of a sphere of nature with a corresponding teleological conception of history or some

other conception of the ultimate system which encompasses all systems and therefore serves as the basis of the analysis of how one system is

either integrated with or distinguished from another.

Both the philosophy of the limit and systems theory also analyze social and intellectual phenomena within a concept of meaning-effects that

does not coincide with the concept of meaning as individual intention

ality. But even if we accept these as legitimate and shared philosophical

presuppositions between the philosophy of the limit and systems theory, we shall need to ask the question: What are the conditions, even if we

understand these as systems, that make a

system "appear" as a

system

rather than just as the nature of reality? Luhmann's consistent answer to

that question is to turn us back to the observer: "In the case of autopoietic (that is, self-reproducing) systems, this would mean that an observer has to focus on the self-determined and self-determining distinctions a

system uses to frame its own observations."3 For Luhmann, what is

New Literary History, 1996, 27: 185-197



186 NEW LITERARY HISTORY

observed always turns us back to the observer. He is more than aware

that since there is no reality that is just "there" outside of systems, we not

only observe reality but we also can observe the observing system?

including what we commonly think of as the individual?that is observ

ing reality. Again, to quote Luhmann: "The question then becomes:

Who is to be observed and by whom and for what reasons?" (DS 773).

My purpose in this paper is to argue that deconstruction, or the

philosophy of the limit, brings to the fore an aspect of when and how a

system becomes observable by always returning us to the relationship between meaning, semantic codes, and representation. It is this relation

ship between semantic code, systems analysis, and representation that

adds an important dimension to how and why it becomes possible to

separate out, observe, and define a system

as a system and thus "dissolve

the paradox of the world as a frameless, undistinguishable totality that

cannot be observed" (DS 775). To demonstrate my understanding that the relationship between

systems theory and the philosophy of the limit involves an analysis of the

collusion between meaning and representability, I will focus on an

analysis of the conditions under which gender can come to be observed as a

system. Of course, we already have conflict between two observers

since I observe gender as a system and Luhmann does not. The addition

then that I am insisting upon is that in order to make sense of

observability we must have some account of representability. It is

precisely such an account that the philosophy of the limit shows us is

inseparable from both the consolidation of meaning and its inherent

limit through this very consolidation. It is a consolidated world of

meaning that we "see." This consolidation is a construction, even if not

one attributable to individual intentionality. Luhmann, of course, un

derstands that the world is constructed of systems that are in turn

observed and reconstructed by observers, and that therefore all systems or at least the observers of systems in language can be deconstructed.

Once again to quote Luhmann: "It may go too far to say that language use as such is deconstructive. But

observing an observer who uses

language certainly is" (DS 769). Thus, for Luhmann, the question of how consolidated reality appears

to the observer is itself a question that will turn us back to who the

observer is and how he or she observes reality. For Luhmann, decon

struction is best understood as a second order observing precisely because it shows that the consolidation of meaning, which is a system's

"reality," disintegrates under the observation of an observer who ob

serves the system observing itself and the construction of its objects. To

quote Luhmann: "The stereotypicality of the distinction leads to the

assumption that all these systems observe the same thing, whereas



ENABLING PARADOXES 187

observing these observers shows that this is not the case. Each of them

operates within its own network. Each of them has a different path and a different future. While the distinction suggests a tight coupling of observations and reality, and implies that there is only

one observer

observing 'the same thing' and making true or false statements, a

second-order observer, observing these observers would see only loose

coupling and a lack of complete integration" (DS 764). Implicit in this

quote is Luhmann's recognition that what we see or how we see it, as

consolidated or as disintegrated, turns in part not only on the political interest of the observer but on the meaning the observer sees as either

coherent or incoherent, integrated or disintegrated. My addition is that

beyond just marking that it is the observer who sees the reality as

disintegrated rather than consolidated, we also need a more exact

understanding of how systems operate so as to

perpetuate and create

meanings and ultimately limit the representability of certain realities as

systems.

My argument is that we can best understand the possibility of a cross

fertilization between systems theory and deconstruction by demonstrat

ing how representability and meaning are intertwined so as to allow

systems to appear as systems; to show, in other words, how they

distinguish themselves or frame themselves so as to be distinct from a

frameless, undistinguishable totality that could not be observed. Gender is instead assumed as a totality so that is almost disappears as a system; it

becomes difficult for it to be represented as a system and instead is

considered, simply, as the way things

are. My argument provides

a new

dimension to the one that Luhmann himself notes in his own systems

reading of deconstruction by analyzing more thoroughly the operation of gender as a system; a system that operates to limit the possibility of the

representability of woman and, as a result, the status that can be given to

"woman" as an observer. Of course, gender is only one

example. But I

hope to show that by looking more closely at Derrida's deconstruction of

the current meaning given to gender hierarchy, we can enrich our

understanding of the relationship between deconstruction and systems

theory more

generally.

Luhmann, as I have already indicated, has argued that deconstruction is best understood as second order observing. Luhmann has described second order observing as follows: "On this level one has to observe not

simple objects but observing systems?that is, to distinguish them in the first place. One has to know which distinctions guide the observations of the observed observer and to find out if the stable objects emerge when these observations are recursively applied to their own results. Objects are therefore nothing but the eigenbehaviors of observing systems that result from using and reusing their previous distinctions" (DS 767-68).




As he also notes, "Deconstruction destroys this 'one observer-one

nature-one world' assumption. Identities, then, have to be constructed.

But by whom?" (DS 765). But nothing in Luhmann's own labeling of deconstruction as a second

order observing, however, draws explicitly the connections between

meaning, semantic codes, representability, and how aspects of "reality" can come to be observed as a system in the first place. Thus, I'm not

necessarily disagreeing, at least within the terms of Luhmann's own

systems theory, that deconstruction could be understood as involving second order observing. I am arguing that it can only be so understood if we also understand that this second order observing turns on the

contingency inherent in a world that is given to us only through

meaning-giving systems with corresponding conditions of representability. The contingency is what allows us to separate ourselves from the world

that is given to us as objective so as to be able to see it differently because we can see it as a system and as

nothing more than a

system. In the case

of gender, I will argue that it is precisely the deconstructibility of the

reality of gender that allows it to appear as a system (that is, be

represented as a system) and thus observed as such. Thus, we ironically owe to deconstruction the appearance of gender as a system precisely in

its deconstructibility. More importantly, this is what allows us, then, to

have "appear" on the stage of history the feminine observer whose

observations count enough to mark out the reality of gender as a system from other possibilities of the meaning and representability of her own

sexual difference. Such a marking out would be crucial in the effectua

tion of what Luhmann argues is the hallmark of work for modern

society, "the move to end a social order based on stratified differentia

tion" and replace it with functional differentiation."4 Such a replace ment would ultimately leave us with individuated beings not simply

encompassed by any one system that defines ultimately their status in

society.

Let me turn now to my account of why the gender divide has not only

operated as a system but has operated as a system that paradoxically limits its representability as a system and further does so to erase the

feminine other as the observer who could mark the gender system as a

system. To do so, I will provide an account of how sexual difference and

gender is understood as a semantic code that consolidates its meaning so that we inevitably "see" a world in which there are two sexes and only two sexes: a world in which the woman is defined and thus seen as the

castrated Other. It is this consolidated world of meaning, in other words, that forces us to see sexual difference in such a limited way and to see

this difference as itself a part of an order of reality different than one

based on systems as these are always implicated in the production of




meaning. To provide a systems account of the current stratified reality of

sexual difference, I will rely on the work of Jacques Lacan. Lacan's

important addition to Freud's own biologism is to turn us not to the

objects we associate with sexual difference?the body parts?but to the

system of meaning and the semantic code of desire that reinforces that

system of meaning so that we see sexual difference in a particular way that is mandated by this divide into two and only into two.5

For Lacan, the semantics of desire is consolidated by the Oedipus

complex so as to make inseparable the development of human being and the materialization of sexual difference in and through language. This inevitable materialization of human being in and through lan

guage, as this implicates the divide into gender, means that the symbolic order is itself engendered and thoroughly genderized all the way down.6

This is why, for Lacan at least, it becomes a totality from which we cannot

separate its operation as a system because it is the very foundation of the

materialization of human being in and through language. According to

Lacan, children of both sexes enter into the world of culture, and more

specifically, the signifying system we know as language, only by enduring a severe wound to their own narcissism. This wound is a result of the

recognition that the mother is not there just for them. With this

recognition comes the inevitable question: Who does mommy want if

she does not want just me?

The primordial moment of separation from the mother is literally life

threatening because of the absolute dependence of the infant on this

Other. The terror or threat that the mother presents in her separateness

initiates the struggle to overcome the dependence

or the need the

infant has of her. The move from need to demand is, in part, the infant's

expression of the resistance to vulnerability of his or her need. This

resistance will be against the mother because it is her desire that is

registered as robbing the infant of his security. Of course, this kind of

absolute security is a fantasy. The condition of this fantasy is that the

mother not be "sexed." Thus, it is inevitably associated with the pre

Oedipus phase, the period before the registration of the significance of

sexual difference. The fantasy of absolute security, then, rests on the

corresponding fantasy that the mother is whole in herself and thus a

being unscathed by desire. This fantasy figure on whom the infant is

totally dependent in its need is the imaginary phallic mother. Once the

fantasized mother/child dyad is shattered, the phallic mother remains in the imaginary as all-powerful and threatening in her power both to

bestow and take away life.

This primordial moment of separation is not only experienced

through terror and the fear of loss, it is also the gaining of an identity separate from the mother. The attempt to negotiate the ambivalence of




a loss that is also the gaining of an identity is beautifully demonstrated in

the fort/da game of Freud's grandson Ernst.7 The game enacts the

fantasy that the child is separate but still in control of the mother/Other. But this negotiation, in turn, demands an unconscious identification

with the one who is at least imagined to be able to bring the mother back

because he is the site of her desire. The narcissistically wounded infant

thus turns toward the imaginary father because the imaginary father is

whom mommy desires. But what is it that singles out the imaginary father, what is it that makes him so special? What is it, in other words, that daddy has that mommy desires that symbolizes what mommy wants?

The simple answer is the penis, but Lacanians would never put it so

simply. The identification with the imaginary father is inseparable from the

projection of the power to control the mother, to literally give her a

name and, in that sense, guarantee that she, and correspondingly the

infant, is spoken for. Already we see how in Lacan there is social and

symbolic significance to partriarchically structured relationships. It is

precisely the father's power to name that is assumed and legally enforced by a patriarchical legal system. In this sense, it is, of course, a

form of stratified differentiation since it gives the power to name to only one of the sexes and marks the woman as never fully adult because she

can never have the power to name her own lineage. The woman

achieves her status through the man as long as patrilineal lineage

governs family hierarchy. Obviously, this stratified system of differentia

tion has been disrupted by significant feminist reforms. Women can

vote, contract, and own property, but they have yet to achieve equal

status vis-?-vis kinship systems. For a Lacanian, the barrier to such

equality and a full breakdown of the stratified system of gender can be

seen as inherent in the current meaning of gender identity. Thus, Lacan

offers us an account of why Luhmann's own optimism that gender

hierarchy is a historical artefact fated to disappear is unwarranted. Of

course, the power to name is inevitably connected with the power not

only to name the infant but also to name what will come to be seen as

reality. The big Other that keeps the mother as "his," in the specific sense of stamping her with her name, is imagined as a guarantee of

identity that is established, but only precariously so, through the loss of

the fantasized mother/child dyad. But this fantasy projection only makes sense within a symbolic order that is already established as

patriarchal. The terror is that he who is not spoken for slips through the

cracks of social life into figurative nonexistence. With the crumbling of

the fantasy that the mother is phallic, with the recognition of separate ness, comes the desire to turn to the third to guarantee the infant's

identity since he can no longer count on the mother to secure his being




through unity with her. Thus, it is the name of the father and the

symbolic register of his potency that is the basis for identification with him and not the simple fact that he has a penis. The biological penis takes on the significance it does only through the identification as the

big Other that secures identity through the power to control the

mother/Other. As I've already argued, this power cannot be separated from the symbolic register established by patrilineal lineage which identifies the father as the one who names and thus as the one who secures the identity and therefore the separate being of the infant. It is the symbolic power that is read back into the penis, but as it is read back into the penis it will establish a symbolic register that is based on

patrilineal lineage and thus gives to the father, and only the father, the

power to name.

On this account, it is the symbol of the phallus and its reinforcement

by the law of patrilineal lineage that accounts for the meaning given to

the penis and the corresponding significance given to the initial sighting of sexual difference. This is an initial example of the relationship between meaning unconsciously registered as a prior citation on the one

hand and representability on the other. Sexual difference, or more

precisely the registration of feminine sexual difference as lack, would then be the result of a prior citation in the unconscious. It would be the

prior citation that would explain why there is a lack in the mother that has structural consequences for the castration

complex and why

a

woman's "sex" is seen as castration.

The lack in having is both a threat and a nostalgia because it is the

only way in which the primordial loss of the phallic mother can be

signified. Thus, the phallus stands in as a bar to the return to the phallic mother, as a

representation of what is not there, the lack in both sexes.

The phallus, however, is also unconsciously identified with the name of the father in and through the law of patrilineal lineage. On this

interpretation of how the phallus comes to be cited as the signifier of the lack in both sexes, there would be no necessary basis for the identifica tion of the phallus with the penis aside from the automatic reading of an

already registered citation and, therefore, there would be no reason for the phallus necessarily to be appropriated to the side of the masculine. In other words, there would be no biological or even representational basis for the identification of the penis with the phallus other than the

meaning that has already been given to the role of the imaginary father. It would be just a matter of reading?even if that reading were so

automatic that it would appear as inevitable. Thus, the establishment of the phallus as what Lacan calls the "transcendental signifier" is best

understood through a systems analysis of how the operations of the

meaning of the father govern over the actual family setting so as to




determine the significance that will be given to the sighting of sexual

difference by young male and female children. Given the identification

of the phallus with the imaginary father, it is masculinized only because

it is part of a system in which it is masculinized. However, the signifi cance of the masculinization of the phallus yields a differential position

ing that engenders each one of us as a man or a woman. Remember

Lacan 's famous example of how the symbolic will inevitably generate the

differentiation between the men's room and the women's room.

Deprived of the penis, the little girl is also deprived of the fantasy that

she has the phallus. She is left only with the masquerade of being the

phallus which is not to be at all. The cut from what Lacan calls the

"feminine imaginary" imposed by the name of the father and the

masculine symbolic renders woman beyond expression, beyond mean

ing. Hence, for Lacan, woman does not exist because what cannot be

expressed does not have existence. Ultimately woman, as the castrated

Other, is only the symptom or inevitable return of the truth that man is

inevitably also marked by the lack in having as he too is barred from the

phallic mother by the law of the Oedipus complex. Man endures this

symbolic castration to be "at all," in order to have his identity as a

speaking being secured by the name of the father against the ever

threatening imaginary Other. But this designation of the woman as a

symptom or as the object of man does not turn, for Lacan, on any

necessary association of woman's sex with her biological destiny. Her

objectification or, more precisely, her abjection, is the result of this

already-in-place system which functions through and is enforced by

patrilineal lineage as a system of stratified differentiation.

If we understand the circular nature of Lacan 's argument that sexual

difference will be engendered by the law of the Oedipus complex as this, in turn, is enforced by the state of differentiation between men and

women imposed by patrilineal lineage, we can begin to read Lacan as

giving us a systems analysis of gender. Of course, Lacan would deny that

this is the case because, for him, the very materialization of human

being takes place in and through a language that is necessarily engen dered by the establishment of the phallus as a transcendental signifier. Thus, it operates so pervasively through the world given to us as the

meaning effect we call human being that we could never separate ourselves from it so as to observe it as an outsider. It simply becomes the

world as we know it. Thus we are enforced to see sexual reality in this

way. But using Luhmann's terminology, we can define gender hierarchy as a self-referential system that codifies its semantic code through the

meaning given to the Oedipus complex in patrilineal lineage. In turn,

the meaning given to the Oedipus complex within this system differen

tiates the human species into two sexes, male and female, even though




the masculine is defined only against the feminine. Luhmann himself

recognizes the importance of binary codes within the systems. To quote Luhmann: "The most

important function-systems structure their com

munication through a binary, or dual, valued code that from the

viewpoint of its specific function claims universal validity and excludes

further possibility." I am arguing that gender differentiation can better

be understood to take place through the consolidation of this binary code which defines each one of us as a man or a woman and which is

inseparable from the semantics of desire that Lacan associates with the

materialization of human being in and through language. To remind those unfamiliar with Lacan's analysis of sexual difference

and, more precisely, why the feminine is excluded from the order of

meaning and, thus, of representability, let me summarize again his

understanding of the meaning of the establishment of the phallus as the

transcendental signifier. The meaning of that establishment is that

woman will be read as the castrated Other, the symptom of man. As

lack?as the castrated Other?she can have no positive, affirmative, and

thus representable characteristics that are intimately associated with the

meaning of her sex. In the place of her representability as a unique form

of human being is the fantasy of what she is in the masculine imaginary. For Lacan, that fantasy itself will be fed by the repression of the phallic mother in the unconscious. This repression creates a splitting: the

phallic mother is the ultimate object of desire and, inevitably as such, the feared, evil one. Thus, the way woman is seen is inseparable from

this fantasy structure imposed by Lacan upon both women and men as

the truth of feminine being by the meaning of sexual difference

enforced by the semantic code of desire, inseparable again from the

Oedipus complex and its symbolic meaning. The meaning of sexual

difference, then, functions as the limit of the representability of woman

in at least two important ways. First, it imposes a limit on how woman will

indeed be represented since she will be represented from within a

fantasy structure that limits the way in which she can be imagined and,

secondly, the system of gender itself, since it is invested in as what

protects man from the feared phallic other, will appear as the necessary

backdrop for his very existence. To challenge that backdrop as the

inevitable foundation of human existence, then, will inevitably be

extraordinarily threatening. Indeed, it may seem life threatening. Thus

there would be, on this analysis, fierce resistance to the representability of gender

as a system.

Let me just note briefly one example of how we could understand the

limit to representability imposed by the operation of the gender system. In Meritor Savings Bank, FSB v. Mechelle Vinson et al., the crucial circuit

court decision that established an abusive and hostile work environment




as constitutive of the wrong of sexual harassment, the Eighth Circuit Court forcefully argued that all evidence of a woman's sexual past and her style of dressing should be excluded from consideration by the court as evidence of her harassability.8 They did so on the basis that such evidence implicated a fantasy structure that gave meaning to and

represented women in a way that had no basis for enforcement in a

court of law. Justice Rehnquist, writing for the Supreme Court, argued on the contrary that such evidence was relevant as it went to the

"desirability" of the woman and the desirability of the woman is

inseparable in our law from her "harassability" (69). Women are

represented through what Lacan calls the "psychical fantasy of woman" as either good or bad girls, depending on certain characteristics. Thus, the kind of evidence that was at stake were black stockings, dangling

earrings, weight, and how many dates the woman had in the past year. Women who wore dangling earrings and black stockings were "seen" as

presenting themselves as "desirable" but "asking for it." Evidence as to

weight and lack of dates was seen as relevant to whether or not it was

credible for a woman to present herself as desirable. But the characteris

tics are given meaning only through an established grid which identifies women through unconscious fantasies which are limited in their array and diversity.

The Meritor decision exemplifies what I mean by the operation of the

system of gender which is enforced through a stratified form of

differentiation that limits the representability of woman for purposes of

the law. Thus, unfortunately, the gender system imposed upon women,

which reinforces stratified differentiation and its inseparable from the

maintenance of stratified differentiation in gender relationships in

modern society, limits the different ways in which woman as an element

in different systems could be constructed.

Derrida's intervention is not intended, in Luhmann's terms, to expose

gender as a system but to expose it as a system that is known through the

meaning effect of the foreclosure of the resymbolization of the feminine

within sexual difference. For Derrida, we see woman as the "castrated

Other" only because she is designated as such by a prior system of

meaning. Derrida shows us, in exactly Luhmann's sense of second order

observing, that the so-called "direct reality" of sexual difference is based

on a system by observing the functioning and operation of that system. He does so not simply by observing the system observing itself but by

explaining how it is possible for either a man or a woman to observe the

system as a system. He explains that possibility by demonstrating that the

establishment of the phallus as a transcendental signifier is based only on a reading of the mother's desire and that what is read can always be

reread. In Lacan 's own terms, he undermines the relationship between

significance and jouissance by showing that the semantic code of desire




does not effectively exclude the sliding of the signifier "woman" so that

she cannot slip out of the place in which she is designated as only the

castrated Other who cannot be represented.

Derrida's argument that the very slippage of language breaks up the

coherence of gender identity allows us to undermine the rigid gender divide that has made dialogue between men and women impossible and

the acceptance of violence toward women not only inevitable, but also not "serious."9 This slippage in language that always allows for the

possibility of reinterpretation is what Derrida means by iterability.10 He uses the term to indicate that the very repeatability of language implies both sameness and difference. What allows language to be repeatable is

that it can be repeated in different contexts. But if there is no context of

context, then what is repeated does not yield an identical meaning. In

this sense, if we assume that all systems are constructed in language, there could never be any pure self-referentiality because as a system seeks to perpetuate itself it would always be doing so by responding to its

irritations or symptoms and, thus, would repeat itself in a slightly different context. This, in turn, means that as it repeats itself, the system also transforms itself.

Within the context of gender hierarchy, iterability means the repeti tion compulsion of imposed gender identity can never completely foreclose transformative possibility. It is Lacan 's very insight into the

linguistic structures that construct gender identity that allows Derrida to

turn Lacan 's analysis against himself by showing how his insight into the

semantics of desire could give way to another reading.11 It is important to note here that I refer to this possibility as transformative to distinguish it from the position that would allow for shifts within the binary code itself. In other words, it is not just that we can shift the meanings of male

and female within the binary code that produces the distinction

between male and female. Such shifts would clearly be comprehensible within Luhmann's understanding of how binary codes are perpetuated by systems. Since the code cannot be separated from its meanings, this

process can never be protected from the effective undermining of the

code itself. It is precisely the undermining of the rigid code of binary

oppositions that the philosophy of the limit seeks to effect. Within the

code of the gender hierarchy, this process itself has an ethical aspiration. That aspiration is Derrida's dream of a new choreography of sexual

difference in which our singularity, not our gender, would be loved by the Other.12

Derrida's specific relevance to this understanding of "sex" is that he

deconstructs the status of the phallus. To summarize: Derrida's decon struction of the law of gender difference undermines the grounding of the phallus through a transcendental illusion which would prevent us

from seeing the system of gender hierarchy as a system. In this sense, the




deconstruction of the status of the phallus in Derrida's intervention into Lacanian psychoanalytic theory renders visible a system that validates itself as nature because its meaning has become so unshakable that we

do not see the connection that has been made unconsciously between the signifiers "masculine" and "feminine" and the signifieds they repre sent. Here we are confronted with a specific example of how the

philosophy of the limit operates ethically against a conception of limitation that presents itself as transcendentally grounded. The para

dox of the status of the phallus is ultimately what enables an explosive kind of feminism, a feminism which does not turn us back to any specific systems-meaning of woman.

For Lacan, the law of the phallus establishes woman as exactly what cannot be adequately represented in any current system of meaning and

therefore marks her as what is beyond any of the systems of meaning. This paradox serves both as a limitation to the challenges we seek in

contesting current conventional meanings of woman within systems, and as their ultimate possibility, kept open in the very paradox that the

phallus only establishes itself as the barrier to the re-representation of

the feminine sex because it operates as a barrier. Derrida demonstrates

precisely that these operations are just that, operations, and that they are therefore deconstructible. It is this deconstructibility that is insepa rable not only from the representability of the feminine other more

generally but, indeed, from the possibility of representing the feminine as

capable of observing and whose observations count and therefore

who can create a movement such as feminism which itself will be a

second order observing. Feminism demands not only that we see gender as a system and as a system that blocks the fundamental move that

Luhmann associates with modernity from stratified to functional differ

entiation, but that we see woman beyond the limitations imposed upon our reality by the system of gender. In other words, we begin to see

woman?envision her?as other than the fantasies imposed upon us by the psychical fantasies of woman. In this way, the possibility of the

feminine observer as an observer whose observations count and thus can

mark a system of gender as a system, is inseparable from the

deconstruction of the meaning of woman as the one who is observed but

is never the observer. In this manner, second order observing is

inseparable from the demonstration of the contingency of meaning that

Lacan tries to defend against in his argument for the inevitability or

retroactive performativity of the establishment of the phallus as the

transcendental signifier that guarantees the meaning of sexual differ

ence and acts as a barrier to any challenge to the meaning of gender. Thus, paradoxically, the deconstructibility of the status of the phallus

is precisely what makes gender hierarchy observable as a system and, at




the same time, allows for the rerepresentability of the feminine as other

than the observed. From the viewpoint of a feminist observer, it is

Derrida's deconstruction of the status of the phallus that allows us to see

the significance of the erasure of gender as a system at the same time

that gender can appear as a system precisely at the moment of its

deconstruction. There is an irony, then, in Luhmann's own lack of

recognition that gender is a system in that it is Luhmann himself who

recognizes that it is always from the standpoint of an observer that a

system can be understood in its operations as deconstructible. Thus, we

paradoxically owe to deconstruction the meaning of the appearance of

gender as a system precisely in its deconstructibility. And it is in this

paradox that feminism finds its explanatory power and its political

possibility.

Rutgers University

NOTES

1 See Drucilla Cornell, "The Philosophy of the Limit: Systems Theory and Feminist Legal

Reform," in Deconstruction and the Possibility of Justice, ed. Drucilla Cornell, Michel

Rosenfeld, and David Gray Carlson (New York, 1992), and "The Relevance of Time to the

Relationship between the Philosophy of the Limit and Systems Theory: The Call to Judicial

Responsibility," in The Philosophy of the Limit, ed. Drucilla Cornell (New York, 1992).

2 See Niklas Luhmann, Ecological Communication, tr. John Bednarz (Cambridge, 1989), The Differentiation of Society, tr. Stephen Holmes and Charles Larmore (New York, 1982), Love as Passion, tr. Jeremy Gaicresard and Doris L. Jones (Cambridge, Mass., 1986), "Closure and Openness: On Reality in the World of Law," in Autopoietic Law: A New

Approach to Law and Society, ed. G?nther Teuber, tr. Ian Fraser (Berlin, 1987), "Law as a

Social System," Northwestern Law Review, 83 (Fall 1988/Winter 1989), 136-50, and

"Operational Closure and Structural Coupling: The Differentiation of the Legal System," Cardozo Law Review, 13 (1992), 1419.

3 Niklas Luhmann, "Deconstruction as Second Order Observing," New Literary History, 24

(1993), 767; hereafter cited in text as DS.

4 Luhmann, Love as Passion, p. 5.

5 Jacques Lacan, Ecrits: A Selection, tr. Alan Sheridan (New York, 1977). 6 See Judith Butler, Bodies That Matter (New York, 1993) for an extended discussion of

the inseparability of the ethical, political, and material dimensions of embodiment.

7 Sigmund Freud, Beyond the Pleasure Principle, in The Standard Edition of the Complete

Psychological Works of Sigmund Freud, tr. and ed. James Strachey (London, 1920), XVIII:14.

8 Meritor Savings Bank, FSB v. Mechelle Vinson et ai, 477 U.S. 57 (1986); hereafter cited in

text.

9 Jacques Derrida and Christie V. McDonald, "Choreographies," Diacritics, 12, no. 2

(1982), 66-76.

10 See Jacques Derrida, "Signature Event Context," in his Margins of Philosophy, tr. Alan

Bass (Chicago, 1982), pp. 307-30.

11 See Jacques Derrida, The Post Card: From Socrates to Freud and Beyond, tr. Alan Bass

(Chicago, 1987). 12 See Derrida and McDonald, "Choreographies."



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