is a focus on the interplay of performance, performativity, and the law, because it is through the collapsing of these phenomena that racial knowledge takes hold of (inhabits, choreographs, and shapes) the raced body and makes it into a racialized subject. As such, this book is about the power of performance aesthetics insofar as performance is that which transforms legal performatives into embodied realities, as much as it can be the means through which the body disrupts the interpellative trajectory of the law in order to posit and present other alternatives. The remainder of this introduction thus attempts to break down the space between performance, performativity, aesthetics, and law in the context of Asian American racialization.
Timorous Fiction: Legal Performativity and the Making of Asian Americans
So far, I have discussed the relationship of the law to performance, but I have only peripherally discussed the performativity of the law. The law is performative. It is composed of linguistic utterances and acts (statutes, policies, executive memos, judicial opinions) that do more than describe the world, because they produce a doing in it through their very utterance or inscription. In the language of J. L. Austin, Justice Harlan’s declaration that the Chinese are “a race so different” is not constative; it is performative.46 That is, Harlan did not in fact “‘describe’ or ‘report’ or constate anything at all,” because in the uttering of the phrase, he achieved the doing of something.47 Agents of the law do more than determine facts; they produce subjects through their performative utterances. As Austin observed, “a judge’s ruling makes law; a jury’s finding makes a convicted felon.”48 Harlan’s declaration must thus be understood as part of a network of performative utterances that produced and confirmed the exceptional legal status of Asian Americans by naming and simultaneously “making” them into a “race so different.” Although legal discourse masquerades as factual and descriptive, it is in fact central to the production of social meaning and reality through its enunciation.
Legal discourse forgets its own performative power, transforming a court’s performative utterance into a codified reality. Whether or not the person subject to a jury’s finding committed the felony, the jury’s finding makes him or her a convicted felon as a fact of law unless and until a higher authority intervenes to overturn this determination. As Austin warned, “Of all people, jurists should be best aware of the true state of affairs. Perhaps some now are. Yet they will succumb to their own timorous fiction, that a statement of ‘the law’ is a statement of fact.”49 But the United States has a stare decisis system, whereby a decision in a given case will determine future application of the law. In such a system, a jurist may never have to succumb to this timorous fiction because a court that makes a factually erroneous determination transforms this error into a legal fact just by uttering it. Stare decisis allows a statement of law to retroactively become a statement of fact at the exact moment that a judge’s ruling exceeds the constative function of a legal declaration in order to make law, to make a convicted felon, to make an enemy combatant, or to make Asian Americans into a race so different.
The law’s misrecognition of Bashir as an “enemy combatant” in Lidless may well have been a fiction, but this was cold comfort to the man as he suffered in his Guantánamo cell. In many ways, little has changed since Thomas Hobbes issued his famous maxim, auctoritas non veritas facit legem (authority, not truth, makes the law), and this has grave consequences for racialized subjects when they are caught up within and misrecognized by the law. Because a legal declaration announces itself as the articulation of an established legal fact at the same time that it makes the law, the legal production of subjects is neither purely constative nor purely performative but both. As Jacques Derrida argued in his analysis of the US Declaration of Independence, it is precisely the “undecidability between, let’s say, a performative structure and a constative structure, [that] is required in order to produce the sought-after effect” of giving simultaneous birth to a nation and the national subjects (“We the People”) that authorize this event.50 The law makes We the People, but, at the same time, it only comes into being as We the People play their properly cast role as We the People. In chapter 3’s analysis of performances of patriotism in the Japanese American concentration camps of World War Two, I further demonstrate how it is in performance that the people realize the constitutional being and constitutive power of the state. This occurs through embodied acts that correlate with the formal ideals of the state, such as the Constitution or the law. Performance makes the nation. It is also what makes national and racial subjects.
The juridical performative can only go so far in making us into We the People or transforming Asian America into “a race so different.” As a result, the interplay between legal performativity and embodied acts, or performances, is key to understanding how racialization occurs. By now the reader has hopefully noticed that we are gliding across the slippery ground between performativity and performance, or what Eve Kosofsky Sedgwick and Andrew Parker describe as a “generalized iterability, a pervasive theatricality common to stage and world alike.”51 The mechanisms productive of national and racial subjects are inherently theatrical, an assertion that I can best explicate through a close reading of a classic and paradigmatic example of subject production, Louis Althusser’s “Ideology and Ideological State Apparatuses.”
Describing “ideological state apparatuses” as the means by which the state reproduces a population’s “submission to the ruling ideology,” Althusser suggests that the state does not simply force itself on the subject but is most effective when it can seduce large masses of the people into willing submission.52 Tellingly, he defines the law as both a repressive state apparatus and an ideological state apparatus (it is the only state apparatus that enjoys this dual status).53 And as his paradigmatic example, he famously describes a “theoretical scene [la scène théoretique]” in which a police officer shouts out “hey you there,” and the hailed person turns around.54 Submitting to the recognition of the hail, “he [or she] becomes a subject” for the law.55 The word scène in Althusser’s description of interpellation translates as both “scene” and “stage,” figuring the act of interpellation as a dramatic act, or a staged encounter between the law and the subject. Later, he even describes his illustration as “my little theoretical theater [notre petit théâtre théoretique].”56 If we are to take seriously the metaphors by which he explains the process of interpellation, we see that “one becomes” or is “made” a subject through theatrical protocols.
Althusser is situated in a long tradition of Marxist criticism that relies on metaphors of performance. Marx himself describes commodities as circulating between “dramatis personae”; he refers to the market as a “stage,” narrates the tale of a table that is “dancing of its own free will,” and states that “the great events and characters of world history” occur as either “high tragedy” or “low farce.”57 But Althusser does more than simply invoke a rhetoric of theatricality to explain subject production; he shows us how subjection is itself a dramatic ritual. Elsewhere he even suggests that theatrical spectatorship can be a means for the making of a revolutionary, class-conscious form of subjectivity. In a short and oft-overlooked essay on the playwrights Carlo Bertolazzi and Bertolt Brecht, published in the decade before he wrote the essay on ideology, Althusser claimed that theater has the capacity for inspiring “the production of a new consciousness in the spectator” and, in the making of a new consciousness, a new mode of political subjectivity: “the play is really the production of a new spectator, an actor who starts where the performance ends, who only starts so as to complete it, but in life.”58 Through the experience of a truly revolutionary theater, Althusser’s spectator becomes an “actor” who carries the momentum of the play out into the world, performing in a fashion that will realize the play’s revolutionary ambitions, “but in life.” The language of theatricality in the process of subjection conjures a similar image, as one is made a subject for the law by performing in response and accordance to its hail. Thus, subjection is both a legal and political process as well as a theatrical and aesthetic one. Subjection occurs through performance
