The Myth of Context in Politics and Law: notes

Visions of group-based rights in political and legal theory strive to be both antiessentialist and antiuniversalist. They reject an essentialist view of the self — a view that there is a single experience common to all persons composing, for example, a particular ethnic, racial, or gender group — on the basis that a person’s identity is context-based and contingent, and cannot be defined solely by such factors as race or gender. They also reject the universalist notion of an abstract equality of persons that is at the basis of traditional conceptions of individual rights. In short, group rights are based on the recognition of particular differences among persons. Moreover, the antiessentialist and antiuniversalist aspirations of group rights parallel a jurisprudential vision that favors “contextualizing” law, or making “substance” rather than “form” its keystone. Substantive jurisprudence requires looking to the circumstances and equities of each individual case and thus is similarly premised on the recognition of particular differences among persons.

Yet there is an inconsistency between group rights and their antiessentialist and antiuniversalist foundations, which has important implications for substantive jurisprudence. This Note contends that group rights fail to be antiessentialist because they implicitly affirm the essentialist presumption that all persons of a particular race or gender share a common identity outside the context of discrimination; the substantive approach to adjudication that group rights imply likewise fails to be antiessentialist because it too relies on a conception of unified group identity. This implies that substantive jurisprudence fails to be antiuniversalist as well: like universal individual rights and rulebound formal jurisprudence, substantive jurisprudence screens out important aspects of substance, context, and identity. This difficulty brings into question the desirability of “contextualized law.”