The Politics of Juridification

The Actor's Revenge

Mariano Croce

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781317748397
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Politics of Juridification offers a timely contribution to debates about how politics is being affected by the increasing relevance of judicial bodies to the daily administration of Western political communities. While most critical analyses portray juridification as a depoliticizing, de-democratizing transferral of political authority to the courts (whether national or international), this book centres on the workable ambivalence of such a far-reaching phenomenon. While juridification certainly intensifies the power and competences of judicial bodies to the disadvantage of representative political institutions, it cannot be easily reduced to the demise of democratic politics. By focusing on the multiple ways in which social agents make use of the law, The Politics of Juridification teases out the agential and transformative aspects of the various negotiations social agents engage with legal institutions with a view to obtaining political visibility. In particular, the book homes in on two seemingly distinct phenomena: on one hand, the regulation of sexuality and emerging kinship formations; on the other, the fragmentation of legal settings due to the claims to legal autonomy advanced by sub-state cultural and religious groups. By doing so, the book makes the case for an unexpected convergence between the struggles for legal recognition of sexual minorities and religious and cultural minorities. The conclusion is that juridification does entail normalization and favour the infiltration of law into the social realm. But because of its ambivalent nature, it can and does serve as an alternative vehicle for social change – one that attaches more importance to how social agents produce law on a daily basis and how this law permeates official legal orders.

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1 Juridification within institutions

The law of sex and kinship

This chapter is concerned with how the law is serving as a semiotic circuit where the basic notions of sexuality, family and kinship are currently being revised. In this sense, I will look not so much at the legal instruments that are being deployed by legislatures and courts to accommodate a variety of sexual lifestyles and family formations, as at the use of them that is being made by social actors who ask for legal recognition. Not only does this understanding avoid objectivist pitfalls whereby the role of social actors is effaced and the law figures as a top-down machinery driven by barely visible forces. More than that, this view emphasizes the central role that social agents are granted by contemporary legal techniques. In brief, this chapter is devoted to showing how the law juridifies by empowering those who have recourse to it. At the same time, it unearths some of the most remarkable socio-political effects of this juridification dynamic.

The core of this analysis will be what it takes for marginalized and excluded forms of sexuality and kinship to obtain what I call ‘legal speakability’. This can be described as the entrance of social agents into the legal field in order for them to make claims and negotiate rights with a view to changing their position within the social domain. The law functions as a potent mechanism of socio-political visibility as it redresses the conditions of those who suffer from a situation of social marginalization and whose voice fails to reach out to the sphere of politics. As I will illustrate, this mechanism presents us with undeniable efficacy. The examples of same-sex rights, same-sex marriage and new parenting figures will showcase the success of legal battles. However, I will make the claim that socio-political visibility through legal means comes at a price. The activity of filtering carried out by the law changes the categories by which people perceive and describe themselves. To do this, the Section 1.1 delves into the striking change undergone by same-sex rights claims. Section 1.2 critically discusses the subverting potential of new kinship formations. Section 1.3 casts some light on one of the typical strategies through which the law operates as a sieve that preserves some models of relationships and excludes others. While this is an old chestnut in legal and political theorizing, what I want to discuss here is how and to what extent this aspiration reinstates the legal lexicon as a privileged site of identity-making.

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1.1 The legal boundaries of admissible sexuality

In the last few decades, the regulation of sexual conduct and sexual relationships has been at the centre stage of social and political debates. Western societies or, more precisely, Euro-American (Strathern 2005) socio-cultural understandings of kinship and sexuality have undergone so profound a change that at present the constitutive elements of their lexicon (such as family, marriage, parenthood and many others) hardly conjure up the same images that they did 50 years ago. Other elements of kinship will be discussed later in this chapter, but there is no doubt that the main features of the Euro-American sexual imagery have been resignified (Butler 1997; Lloyd 2007; Croce 2015b). For widespread intuitions and values attached to sex and gender have been drastically revisited. The lines of conventional binaries (such as man/woman, male/female and straight/gay) have been blurred and a basic instability is believed to characterize the sphere of people’s sexuality. The rapid spread in many fields (from society at large to academia) of the term ‘queer’ is exactly intended to denote the vagueness of sexual categories and the multiplicity of sexual orientations.

To be sure, this is one of the most relevant transitions of our epoch, whose political, legal and social import is yet to be fathomed. As argued by David Schneider (1980; 1984), the initiator of so-called ‘new kinship studies’ (see Section 1.2), the sexual imagery, as well as the vocabulary of kinship that it nurtures, are nothing other than a set of ‘cultural units’ deeply ingrained in a society’s symbolic universe. These cultural units operate as cognitive instructions that social actors produce to make sense of their environment and that they are called upon to follow as they take on specific roles within social practices. Therefore, alterations in such a cognitive background result in alterations in the way social actors interact with each other and understand their own place in the world. Whether one views these alterations as an increase in tolerance and acceptance of (once despised) expressions of sexuality or – as a variety of critics whose position will be discussed shortly claim – as a redefinition of the boundaries that separate the natural from the pathologic and the respectable from the abominable, newly enacted policies on sexuality are redefining a crucial aspect of both people’s self-perception and public life. But how is this process unfolding?

Certainly, a crucial push for change was the legalization of same-sex sexuality and the recognition of same-sex unions. Not unlike kinship, the history of same-sex sexuality is a history of cultural units. Mariana Valverde (2006) suggests that these units are scarcely firm and permanent, as they are exposed to unpredictable changes. Michel Foucault’s (1978) ground-breaking investigation into the emergence of homosexuality as a specific identity category pinpointed a historical shift from a view of homosexuality as a range of acts (sodomy), which were not associated to stable types of subjectivity, to a view of homosexuality as a specific form of identity based on natural factors (for nuanced analyses see also Weeks 1990 and Halperin 2002; for a comprehensive account see Löfström 1997). Such a naturalization of homosexuality and the corresponding congealment of a set of acts into an identity category allowed homosexuals to become the subject of a variety of knowledges in both the fields of hard and social sciences. Valverde points out that today this identity category is being superseded. With the demise of comprehensive socio-political struggles and the rise of post-identity politics, the category of ‘the homosexual’ no longer serves as an epoch-making cultural unit. Lately the unit that is being used as a weapon to effect momentous social change is the respectable homosexual couple.

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On the one hand, this reflects the broad change of attitudes I have illustrated at the outset. In today’s Euro-American socio-cultural environment attraction to people of the same sex is much less stigmatized, while many lesbians, gays and bisexuals can be utterly open about their relationships and sexual preferences (I would like to note that I will use the acronym ‘LGB’ and will not mention other variations that include transgender, queer, and intersexual people because the historical as well as legal trajectories of these groups differ in some important respects from lesbian, gay, and bisexual ones – see in particular Stryker 2008). National and international media favourably portray same-sex interactions, while opinion surveys attest to growing social tolerance and acceptance towards LGB sexualities and their concerns. On the other hand, though, such cultural advances are deeply marked by the unit that has supplanted the category of the homosexual – the couple – that is accompanying the accommodation of same-sex rights and thus is shaping the new faces of state policies on family and kinship. How did this remarkable shift come about?

I believe this shift is a revealing instance of the more general process of juridification that, as I explained in the Introduction, is one of the hallmarks of the contemporary junction between the legal and the political spheres. William Eskridge (2013) effectively foregrounds how LGB people have moved from ‘outlaws’ to ‘in-laws’. I suggest that this shift should not be regarded as a movement from a condition of illegality to one of legality, but as a movement from a condition of legal unspeakability to one of legal speakability. My claim is that what matters in this context is the way in which LGB people have come to speak the legal language and to frame their concerns as users of the law. Eskridge is at pains to show that in the last decades the law has actually proved a more effective means of social change than statutory measures. His article intends to debunk the view that most often courts fail to produce significant social reform and that legal officials’ hyper-activism can even be counter-productive as it tends to bring about ‘backlash’ from energized counter-movements. If this is the case, the transition that is affecting LGB rights campaigns can help capture what is involved in the passage from legal unspeakability to legal speakability and thus in the passage from a (mainly) political to a (mainly) legal shape of social struggles.

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To explore this issue, Douglas NeJaime (2003) draws on Gary Bellow’s (1996: 309) definition of political lawyering as a ‘medium through which some of us with law training chose to respond to the need for change in an unjust world’. By doing so, NeJaime explores how legal experts engage in political struggles to effect socio-political change through law and how the means they use act back on the end they further. He points out that often lawyers find themselves constructing ‘identities in order to achieve legal reform’ (Bellow 1996: 519). While there is no doubt that the LGB community is by no means a sealed off, homogenous entity, but a polyvocal context where disagreeing visions of love, sex, relationships and kinship coexist and/or conflict, the need to lay claims to specific rights fosters the tendency to provide a unifying narrative. According to Yuvraj Joshi (2012) this narrative is modelled after the cultural unit pinpointed by Valverde, namely, the monogamous couple based on love, fidelity and mutual commitment, which confers ‘respectability’ on same-sex sexualities. Within this symbolic framework, a form of negotiation is taking place that leaves aside less acceptable aspects of same-sex sexuality and places emphasis on those that support a basic sameness between LGB and non-LGB individuals. Both NeJaime and Joshi trace this negotiation back to lawyers’ need to couch convincing claims for their clients to be granted the rights attached to existing institutions, such as marriage, parenting and adoption. As Robert Leckey (2013: 7) observes with reference to lesbian parenting in Quebec, reference to the conventional lexicon of motherhood in order for it to cover the situation of a woman with no genetic ties to the child ‘makes it likelier that she will be granted custody, an attribute of parental authority which is itself an effect of filiation’.

Based on this analysis, the shift from political to legal struggles reveals itself as a double movement eventuating in a change of the semiotic lexicon through which same-sex sexuality is cognized, recognized and self-recognized. On the one hand, in order to obtain social visibility through legal speakability, advocacy groups and lawyers frame the issue of recognition for same-sex sexuality in such a way that it may be converted into the existing legal lexicon. In this way, lesbians, gays and bisexuals are depicted as those who deserve a set of rights equal to different-sex people. Such a discursive strategy draws on the narratives of equality and sameness, whereby the unrecognition of the rights of lesbians, gays and bisexuals is not portrayed as the neglect of plural forms of sex and love, but as a breach of the principles of the liberal state. On the other hand, this strategy triggers a ‘looping effect’ (Hacking 1996; Sparti 2001), whereby the legal category that is produced to cover a given phenomenon acts back on those who use it to obtain rights. However strategic the purposes of a given category might be, its use on the part of the categorized subjects ‘set[s] up distinctions by drawing boundaries and defining salience, hence producing cognitive constraints on the audience’s identity-recognition span’ (Sparti 2001: 344).

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Against this background, it is worth looking at the historical trajectory of the shift I am touching upon. To this end, I would like to juxtapose two perceptive reconstructions of the shift in question. They cast light on different aspects and tease out different values attached to the new fashion of LGB rights battles. Eskridge (2013) and Diane Richardson (2000) reconsider the leap from the liberationism of the 1970s to present-day LGB rights struggles by advancing two typologies. Eskridge singles out three stages of political engagement and legal advocacy: uphill struggles, politics of recognition and normal politics. Richardson focuses on the types of claims that support rights battles in these stages (as far as the two typologies overlap): conduct-based, identity-based and relationship-based rights claims. Needless to say, these are generalizations that do not precisely correspond to distinct sequences of events that occurred in different geo-historical contexts. However, these two typologies help identify a key element of the trajectory at stake, that is to say, the connection between the change in LGB groups’ strategy and the change in the type of narrative that underpins it.

Eskridge explains that initially (1970–1996) struggles for LGB rights, and for the recognition of same-sex relationships above all, were uphill because of a homophobic cultural background. LGB people could not procreate and were deemed to be unable to form serious relationships similar to marriage with children. This was generally the case until the traditional association of ‘homosexuality’ with sexual promiscuity slowly began to be replaced by association with family and commitment. In a second stage (1996–2008), advocacy groups and civil society organizations came to the conclusion that equality litigations need grass-roots mobilization and efforts to make political alliances. LGB movements needed to give life to a committed politics of recognition. In a later stage (post-2008), LGB issues became issues of normal politics focused on the consequences of different relationship-recognition regimes for different groups within society. The politics of same-sex sexuality became normal because the issue of gay and lesbian relationships came to be perceived as central to the bigger question of social utility as a whole and the further question of whether the legal recognition of lesbian and gay couples could be beneficial or detrimental to it.

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On Eskridge’s reading, shifts and changes are bound up with precise historical events and landmark judicial rulings in the USA. Yet, as Richardson’s analysis illustrates, such situation-specific events are instances of a broader transformation that has affected liberal states generally. Richardson’s typology revolves around the type of claims that legal and political struggles voice. A relevant friction with Eskridge’s view emerges as to the goal of LGB struggles. Indeed, Eskridge frames the issue of same-sex recognition in terms of recognition of same-sex relationships that, in his view, are perfectly comparable with different-sex ones. The recognition of lesbians, gays and bisexuals as being capable of engaging in committed and stable relationships, he believes, dispels a few misplaced anxieties about the alleged antisocial nature of homosexuality. This view hinges on Eskridge’s conviction that gays and lesbians have always conceived of themselves as individuals apt to form couples. It follows that no major shift occurred in the self-perception of (at least the bulk of) the LGB community. In Richardson’s more critical reading, on the contrary, there was something specifically different in LGB conceptions of love and sex before the later stages that Eskridge describes. The political strategies Eskridge accounts for were animated by different concerns than the need for recognition of intimate relationships.

Richardson believes conduct-based rights claims were typical of early stages of LGB struggles before the 1990s. She points out that, as these struggles centred on the admissibility of sexual acts, they did not pursue recognition of any specific form of sexual identity. They aimed at making sure that the law might grant the right for an adult, under certain specific contexts, to engage in sexual acts with another adult. This right can hardly identify anyone as bisexual, gay or lesbian. Moreover, the understanding of sexual practices underlying these claims exerted a disruptive power on mainstream heterosexual ones. A central element at stake was not just the mere right to engage in sexual acts, but the right to gratification of sexual desire. The narrative of reproduction, so central to different-sex sexual practice, was replaced by the right to individual pleasure as well as the recognition of women’s sexual needs advocated by feminists.

A relevant change pinpointed by Richardson is the prominence attached to identity in the rights talk from the 1980s onwards. It became the spearhead of the new sexual battles when openly homosexual or pro-homosexual scientists started emphasizing the genetic connotation of both sexual difference and sexual orientation (Bleier 1984; Fausto-Sterling 1985, 2012; Keller 1995; Spanier 2005). Homosexuality came to be regarded as something inborn, unchosen and unchangeable – in short, ‘something over which they have no control’ (Spanier 2005: 33). From a nuanced understanding of identity as embedded in the flux of ongoing negotiations with available social categories and with one’s social milieu (see, for example, Hammack and Cohler 2009), sexual identity ended up being associated with the presence of a ‘gay gene’ (see, for example, Hamer and Copeland 1994). Richardson insists on the relevance to rights claims of one’s sexual identity not being chosen but affixed to nature. On the one hand, the rights discourse clung to the concept itself of citizenship, which in its turn entails a right to self-expression. If gayness is innate, LGB citizens can neither be asked to efface part of what they are nor be denied the rights and benefits associated with citizenship. On the other hand, however, such an objectified notion of identity altered the nature of LGB rights. While before they were focused on sexual pleasure and the legalization of once criminalized sexual conduct, subsequently LGB rights became a sub-species of minority rights: ‘[W]ithin the established boundaries of tolerance, a limited right to express one’s identity as a tolerated “minority”’ (Richardson 2000: 122; see also Herman 1990 and Cooper 2001).

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Nevertheless, Richardson goes on to say, a more significant change affected the context where rights are supposed to be exercised. Same-sex rights became associated with a specific relational structure, that is, the couple. As Teemu Ruskola (2005: 239) comments in his dexterous analysis of the US Supreme Court decision Lawrence v. Texas (2003), ‘one would think that homosexuals exist only in relationships, and that relationships are the only context in which homosexuals might conceivably engage in sex acts’. The epitome of the new (legally sponsored) link between same-sex sexuality and relationships is a juncture of the aforesaid decision, where the majority opinion states that ‘when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice’ (Lawrence v. Texas, Opinion of the Court, Oral Argument Transcript: 6). Expression of one’s sexuality finds room in a fourfold context comprising relationship, coupledom, privateness and choice (on this wavelength, see also the analysis of Obergefell v. Hodges in Daum 2017).

I should like to stress that the movement I am discussing should be regarded not so much as a dispute over the advantages and disadvantages of same-sex marriage as a cultural shift that occurs within a broader societal transformation. In effect, it is hard – and perhaps pointless – to seek to determine whether marriage is being beneficial or detrimental to LGB individuals and groups. The famed exchange between Tom Stoddard (1989) and Paula Ettelbrick (1989) cannot yet be adjudicated (Stein 2009). The intra-community debate is still underway and concerns issues of politics, identification and ideology, rather than strategy (Ball 2009). Stoddard espoused the approach of the civil rights movement and aimed to further the general project of obtaining equality for homosexuals. Marriage was a channel more than an end in itself. Ettelbrick was more sensitive to the reasons of erstwhile liberationist movements, who believed marriage to be part and parcel of a corrupted and d...

Table of contents

• Cover Page
• The Politics of Juridification
• Law and Politics: Continental Perspectives
• Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• 1 Juridification Within Institutions: The Law of Sex and Kinship
• 2 Juridification Without Institutions: Fragmenting the Law
• Conclusion
• Bibliography
• Index