THE SEXUAL SUBALTERN IN CONVERSATIONS “SOMEWHERE IN BETWEEN”: LAW AND THE OLD POLITICS OF COLONIALISM

Ratna Kapur’s recent book entitled Erotic Justice proposes a new politics of postcolonialism whereby the sexual subaltern disrupts the normative principles of the universal, liberal, legal domain. Kapur traces legal strategies regarding censorship, sex-work, homosexuality, sexual harassment, trafficking and migration which travel a treacherous path, countering allegations of ‘unIndian’ and Western practice with cultural histories of ‘authentic’ sexual legitimacies, towards a new politics of desire. Kapur frames her analysis through postcolonial feminist theory as providing a tool for feminist struggle, yet distinct from and disruptive of a liberal project of global sisterhood. This review deeply values the role of the sexual subaltern which disrupts the tenets of a linear, progressive liberalism. Drawing upon Indian feminist and Western feminist perspectives, the review considers how the distinct position of the postcolonial sexual subaltern subject informs the generic role of law as a tool constructing relations of domination regarding gender, sexuality, caste, property and religion. Kapur observes that both the West and the Hindu Right have engaged with liberal legal principles. This engagement, I argue, exposes and informs law as a historical and contemporary tool of gendered legal colonialism, for sisters to disrupt across the Western and Eastern terrains.Review of Ratna Kapur’s Erotic Justice, Law and the New Politics of Postcolonialism, London: Glasshouse Press, 2005, 219 pp., ￡26, ISBN 1-90438-524-9     

La Nouvelle Vague: Epiphanies, Encounters, Events

A recent collection of essays,Feminist Perspectives on Law and Theory,is here taken as the starting point for an analysis of the political trajectory of feminist jurisprudence. The ‘new wave’ of feminism borrows much of its inspiration from continental theory – from Derrida, Deleuze and Irigaray – and has been subject to criticism for its attention to language and its turn towards culture and aesthetics. Reviewing the materialist bases of the new wave, and particularly its concern with the immediacies of the body and events, it is argued here that it represents a return to the radicalism of feminist legal theory. This revised version was published online in July 2006 with corrections to the Cover Date.     

How the Sublime Comes to Matter in Eighteenth Century Legal Discourse – an Irigarayan Critique of Hobbes, Locke and Burke

This article examines the way in which the sublime comes to matter within various eighteenth century legal discourses, particularly in the work of Thomas Hobbes, John Locke and Edmund Burke. The essay seeks also to relate the theoretical works of these philosophers and lawyers to practical legislative developments of the period, in particular, the passage of the Black Act in1726 and the Marriage Act in 1753. The sublime comes to matter to the law in this period in the sense that philosophical conceptualizations of the sublime in terms of power and transcendence become increasingly significant to representations of the nature and function of English law. Such theoretical accounts of the law as are found in the work of Hobbes, Locke, and Burke, moreover, translate into juridical practices designed to affirm the status of the law as a transcendentally sublime source of political authority in the eighteenth century. This article subjects that understanding of the law to a feminist critique that draws upon the work of the French philosopher, Luce Irigaray. It will be shown that the sublime within Western thought is generally associated with a sense of dread as to the possibility of the annihilation of consciousness. This ontological dread entails, in Jean Francois Lyotard’s terms, a recognition of the possibility of “nothing further happening” to the subject. Within Western discourse, this dread is projected onto, or made material in the form of, some ‘other’ that is, in Irigaray’s estimation, most usually feminine. Thus, the sublime comes to matter in this second, ontological sense and it is within this context that the transcendental sublime emerges as a response to a sense of dread that is projected on to some material, feminine, or feminised, ‘other’. In eighteenth century legal discourse, this ‘other’ take the form of the ‘state of nature’, or the revolutionary mob, or the revolutionary female who signifies more than anything a return to animality and chaos –an ontological and political fall from grace. The Black Act and the Marriage Act, with their shared emphasis upon the preservation of political stability and patriarchal property rights, may in this context be regarded as manifestations in the legal domain of the metaphysical principles of the transcendental sublime – with its emphasis upon an escape from, and a control of, the dreadful, feminine ‘other’. This revised version was published online in July 2006 with corrections to the Cover Date.     

More than a Woman? Embodiment and Sexual Difference in Medical Law

This article examines law’s representation of embodied female identity in the context of two medical law cases, R. v. Human Fertilisation and Embryology Authority, ex parte Blood andB v. Croydon Health Authority. Through an examination of contemporary critiques of female embodiment, in particular the work of Judith Butler, two discursive strategies are suggested for their potential to reconfigure the sexed subject within legal discourse. Firstly, the act of transgression – the flight from purportedly fixed subject positions – can be read in the case of Bloodand calls into question law’s ability to contain and sustain sexed identity as prediscursive and immutable. Secondly, the exposure of the historical formation of the female subjects of legal discourse, demonstrated through a genealogical reading of B v. Croydon Health Authority, contributes to the feminist theoretical project to destabilise traditional gender categories and enables us to think beyond the category of ‘Woman’. This revised version was published online in July 2006 with corrections to the Cover Date.     

The Ethic of Care, Female Subjectivity and Feminist Legal Scholarship

The object of this essay is to explore the central role played by the ‘ethic of care’ in debates within and beyond feminist legal theory. The author claims that the ethic of care has attracted feminist legal scholars in particular, as a means of resolving the theoretical, political and strategic difficulties to which the perceived ‘crisis of subjectivity’ in feminist theory has given rise. She argues that feminist legal scholars are peculiarly placed in relation to this crisis because of their reliance on the social ‘woman’ whose interests are the predominant concern of feminist legal engagement. With the problematisation of subjectivity, the object of feminist legal attention disappears and it is in attempts to deflect the negative political consequences of this that the ethic of care has been invoked, the author argues, unsuccessfully. The essay concludes with suggestions as to how the feminist project in law might proceed in the wake of the crisis of subjectivity and the failure of the ethic of care to resolve it. This revised version was published online in July 2006 with corrections to the Cover Date.     

Not `Social Justice': The Housing Association, the Judges, the Tenant and his Lover Fitzpatrick v. Sterling Housing Association [1997] 4 All E.R. 991; [1998] 1 F.L.R. 6 (C.A.); [1999] 4 All E.R. 705 (H.L.)

This note analyses the decision of the House of Lords in Fitzpatrick, which held that gay partners could fall within the legal definition of ‘family’ for some purposes. The note argues that despite the real (if overstated) benefits that this case bestows on gay partners in the form of legal rights, under analysis, the decision self-deconstructs to reveal that it is grounded on the principle of discrimination on the basis of sexuality. However, it is also suggested that the encounter between discursive legal reasoning (underpinned by normative heterosexuality), and aversion of the family which is ‘other’ to this discourse, is one which leaves its mark on law, as the potential undermining or deconstruction of law’s normative assumptions. The note further argues that although this decision is properly seen as a moment in the struggle for gay rights, it also serves as a reminder that the fortunes of critical theories and political movements that seek to challenge the legal paradigm of the white, heterosexual male are inextricably linked. Fitzpatrick, whatever else it is, is also an object lesson in the debt that current campaigns for gay legal rights owe to feminist critiques of, and campaigns that have successfully challenged, the role of this norm in legal discourse. This revised version was published online in July 2006 with corrections to the Cover Date.     

The `Ideal' Victim v Successful Rape Complainants: Not What You Might Expect

This article proposes that feminist legal critics need to be able to explain how some rape cases succeed in securing convictions. The means by which rape cases are routinely disqualified in the criminal justice system have received widespread attention. It is well established in feminist legal critique that female complainants are discredited if they fail to conform to an archaic stereotype of the genuine or ‘real’ rape victim. This victim is not only morally and sexually virtuous she is also cautious, unprovocative, and consistent. Defence tactics for discrediting rape testimony involve exposing the complainant's alleged failure to comply with the sexual and behavioural standards of the normative victim. This understanding of how rape complain(an)ts are disqualified is not predictive, however, of the complainants whose cases succeed in securing convictions. This article reviews some successful Australian rape cases and considers the ways in which they disturb feminist understandings of how rape complaints are discredited in the criminal justice system. It proposes that recent research analysing the discourse of rape trials provides a way of explaining the apparent discrepancies between the ‘ideal’ rape victim and successful complainants. This revised version was published online in July 2006 with corrections to the Cover Date.     

The Question of Evil and Feminist Legal Scholarship

In this article, we argue that feminist legal scholars should engage directly and explicitly with the question of evil. Part I summarises key facts surrounding the prosecution and life-long imprisonment of Myra Hindley, one of a tiny number of women involved in multiple killings of children in recent British history. Part II reviews a range of commentaries on Hindley, noting in particular the repeated use of two narratives: the first of these insists that Hindley is an icon of female evil; the second, less popular one, seeks to position her as a victim. In Part III, the article broadens out and we explain why we think feminist legal scholars should look at the question of evil. In large part, the emphasis is on anticipating the range of possible objections to this argument, and on trying to answer these objections by showing how a focus on evil might benefit feminist legal thinking – specifically in relation to the categories of perpetrator and victim and, more generally, in relation to laws motivated by a desire to secure women’s human rights.     

From Mrs. Burns To Mrs. Oxley: Do Co-habiting Women (Still) Need Marriage Law?

Following the U.K. Labour government commitment to marriage in the 1998 Green Paper ‘Supporting Families’, Barlow and Duncan produced a robust critique calling for ‘realism’ in recognising that many couples are now choosing not to marry, that too many do not make informed decisions as to whether to marry or not and that, on the basis of their survey, over 40% of respondents believed that some form of family law protection would be available to them, despite their lack of marital status. When added to a concern that economically vulnerable cohabiting women do not receive adequate protection in property law, it seemed all too obvious that the government commitment to marriage should be challenged. In fact, government policy does seem to have shifted somewhat when, partly as a tactical manoeuvre to help the passage of the Civil Partnership Act 2004 and specifically recognising concerns with the needs of economically vulnerable parties, the issue was referred to the Law Commission for England and Wales. This places the ‘realism’ arguments firmly within the reform agenda. However, this article argues that there is a need to look more closely at the arguments used by the ‘realists’, in particular at the evocation of the figure of Mrs. Burns. The more contemporary case of Oxley v. Hiscock is used to both raise questions about the socio-economic profiles of cohabitants, as well to question the presentation of property law as failing women (and family law as offering the protection they need). I argue that feminists should take a cautious approach in relation to the seemingly compelling argument that cohabitants will benefit from the extension of aspects of marriage law to cover property issues at the end of a relationship.     

What is a Fair Trial? Rape Prosecutions, Disclosure and the Human Rights Act

This article engages with the vogue for predicting the effects of the Human Rights Act 1998 by focusing on the rape prosecution and trial. The specific interest is feminist scrutiny of the right to a fair trial, particularly the concept of ‘fairness’, in light of the increasing use of disclosure rules (in Canada and England) to gain access to medical and counseling records. Transcending the two contemporary narratives of ‘victims’/women’s rights and defendants’ rights in the criminal justice system, the authors argue for the infusion of the legal debate on disclosure with feminist understandings of wider cultural debates. They suggest that an increased reflexivity about intimacy, publicity and power, leading perhaps to the development of a concept of ‘democratic publicity’ (Fraser, 1997, p. 100), might help to revision the meaning of ‘relevant’ evidence in the rape trial. They also suggest that the wide-ranging cultural debate about memory, truth and history, and the emerging commitment to experimentation in responding to massive, institutionalised human rights violations (including apartheid, war crimes and child abuse) might be of use in deepening current thinking about the rape trial and listening to the ‘voice’ of the complainant. This revised version was published online in July 2006 with corrections to the Cover Date.     

Recognising Family Diversity: the ‘Boundaries’ of <Emphasis Type="Italic">RE G</Emphasis>

In Re G, the Court of Appeal awarded a joint residence order to the appellant, who was the lesbian ex-partner of the child’s full biological mother. The award also indirectly vested the appellant, a social parent, with parental responsibility and extended a body of case law to same-sex couples, which had until now only been applied to heterosexual couples. The initial purpose of this note is to outline the legal issues of the case in the context of the framework of parental responsibility set out in the Children Act 1989, putting forward a test of ‘parental fitness’ (which focuses on active ‘care’ as its central consideration) for social parents who must appeal to the court’s discretion to obtain parental responsibility. Secondly, the note offers at once a positive reading of Re G while highlighting a number of reservations centring upon continued legal preference for the ‘sexual family’. It is argued that while the legal recognition of ‘family diversity’ and parenthood remains modelled on this ‘sexual family’, the relaxation of family ‘boundaries’ (despite legal victories such as Re G) will remain limited. Re G (Children) [2005] E.W.C.A. (Civ.) 462     

Getting tough on mothers: regulating contact and residence

This article critically examines the relationship between shared residence and contact after the breakdown of the parents’ relationship. It examines the background to the government’s main emphasis on methods of monitoring, facilitating and enforcing contact as the most efficacious method of proceeding in respect of the law reform agenda, focussing particularly on the potential impact of punitive enforcement measures on primary carers, usually mothers. The article sets the discussion within its wider cultural context in respect of fathers’ rights claims that family law currently favours mothers, and shows how recent legal developments constitute part of a package to manage post-separation relationships between parent and children. It also examines some of the emerging case law to show how the judiciary is using shared residence orders and transfer of residence to deal with protracted and very difficult contact disputes, and in ways which were not anticipated when shared residence orders were first introduced. Drawing on feminist legal commentaries the argument will be made that the use of transfer of residence and shared residence orders in these disputes is extremely worrying, especially in light of the growing body of empirical research which heralds caution. The article will conclude by suggesting that far from favouring mothers, both the law reforms and the case law effectively construct mothers as integral to the problem of contact. They are treated as the site of and solution to the ‚problem’ of contact, and the means of dealing with the problem is by increasingly punitive measures which are inappropriate in a family law context. At the same time non-residential fathers who do not uphold contact escape legal sanctions.     

“It’s New But Not <Emphasis Type="Italic">That</Emphasis> New”: On the Continued Use of Old Marx

This essay reviews Skeggs’ and Wilson’s papers in this issue of Feminist Legal Studies in terms of their development of, and departure from, ideas central to the Italian post-Marxist, post-workerist tradition; specifically their understanding that capital is increasingly converging with the production and reproduction of social life itself. I interrogate the assumed necessity to move beyond ‘the limitations of Marx’ by revealing, via the Communist Manifesto, Grundrisse and Capital, how the ideas of ‘old’ Marx can offer important engagements and interlocutions with the ‘new’ empirical phenomena explored by Skeggs and Wilson. I show how Marx’s notion of creative destruction is in tune with Wilson’s work on the erotic generativity of capitalism, and how his observations on labour-time as the measure of value illuminate the exchange and circulation of Wife Swap. Finally, I suggest that we might be wary not to lose sight of the question of resistance by regarding immaterial labour as productive labour, and thus relinquishing Marx’s conceptual tools of labour, value and capital.     

A “Quick and Dirty” Approach to Women’s Emancipation and Human Rights?<Superscript>1</Superscript>

During the past decade, women’s and human rights ‘language’ has moved from the margins to the ‘mainstream’ of international law and politics. In this paper, the author argues that while feminists and human rights activists criticise the ‘mainstream’s interpretation of women’s and human rights, ‘we’ do not question what becoming part of the mainstream and the cosmopolitan classes has meant for us. Drawing on examples of how women’s and human rights arguments have been used in the post-conflict state-building process in Afghanistan, the author attempts to show how international women’s rights and human rights advocacy campaigns planned by well-meaning humanitarians in Western capitals can backfire when implemented in politically complex environments. Dr. Sari Kouvo is a post-doctoral scholar in the Department of Law, University of Gothenburg, Sweden. She is also affiliated with the Center for Global Gender Studies at the University of Gothenburg. Dr. Kouvo has several years experience of working with human rights and gender issues in Afghanistan. The opinions expressed in this article are her own and do not represent opinions of the organisations she has worked for or is working with.     

The ‘Sharia Law Debate’ in Ontario: The Modernity/Premodernity Distinction in Legal Efforts to Protect Women from Culture

The normative figure in Western feminism remains the liberal autonomous individual of modernity. ‹Other’ women are those who have their freedom to choose restricted. Typically, ‹other’ women are those burdened by culture and hindered by their communities from entering modernity. If we remain in the terrain of thinking about women as vulnerable or imperilled, and some women as particularly imperilled, as we generally do of Muslim women, we remain squarely within the framework of patriarchy understood as abstracted from all other systems. A modernity/premodernity distinction will continue to invade any projects intending to help Muslim women. This paper shows the persistence of the modernity/premodernity distinction in contemporary debates around applying Sharia law to the settlement of family law disputes under the Arbitration Act in Ontario, Canada. I argue below that in their concern to curtail conservative and patriarchal forces within the Muslim community, Canadian feminists (both Muslim and Non-Muslim) utilized frameworks that installed a secular/religious divide that functions as a colour line, marking the difference between the modern, enlightened West, and tribal, religious Muslims. I suggest that feminist responses might have helped to sustain a new form of governmentality, one in which the productive power of the imperilled Muslim woman functions to keep in line Muslim communities at the same time that it defuses more radical feminist and anti-racist critique of conservative religious forces. I end by exploring how this effect could have been restricted.     

Sir Mark Potter And The Protection Of The Traditional Family: Why Same Sex Marriage Is (Still) A Feminist Issue

In Wilkinson v. Kitzinger, the petitioner (Susan Wilkinson) sought a declaration of her marital status, following her marriage to Celia Kitzinger in British Columbia, Canada in August 2003. The High Court refused the application, finding that their valid Canadian marriage is, in United Kingdom law, a civil partnership. In this note, I focus on Sir Mark Potter’s adjudication of the human rights issues under Articles 8, 12 and 14 of the European Convention on Human Rights (E.C.H.R.), highlighting his restatement of the ideology of the ‹traditional’ family as natural, normative and desirable. I argue that this case shows that the exclusion of same sex couples from marriage is a feminist issue, because denying same sex couples access to marriage works to sediment patriarchal ideas and re-inscribe gender roles within the family. Wilkinson v. Kitzinger [2006] E.W.H.C. (Fam.) 2022; [2006] H.R.L.R 36     

Problematic Proximities: Or Why Critiques of Gay Imperialism Matter

This article examines the issues of censorship, language and racism through a critical reflection on Peter Tatchell’s response to the critique of gay imperialism offered by Jin Haritaworn, Tamsila Tauqir and Esra Erdem. In ‘Academics smear Peter Tatchell’, we are invited to find evidence of ‘Islamophobia, racism or support for imperialist wars’ in the writings that can be downloaded from Tatchell’s website. The article shows how islamophobia and racism operate in Tatchell’s writings not necessary in the content of specific arguments but through the very form of proximities (for example in the proximity between the words ‘Islam’, ‘fundamentalism’ and ‘terror’). The article thus reflects on how racism operates in language through the repetition of associations that get ‘stuck’.     

`Subjects' of Regulation/Resistance? Postmodern Feminism and Agency in Abortion-Decision-Making

This article explores the epistemological and strategic issues facing feminists embarking upon narrative explorations into women's experiences. It considers the implications for feminist epistemology of acknowledging women's participation in dominant ideologies about their social role. Focusing upon questions of women's agency, it asks how this `conforming knowledge' might complicate postmodernist feminist notions of resisting and reconstructing law's categorisation of `Woman'. It also represents an attempt to clarify, in advance of my own analysis of women's agency in abortion decision-making, why postmodern feminists might talk to women – the `subjects' of law's constructive power. It seeks additionally to open a discussion among a wider audience of feminists about what we might do with the information uncovered through listening to women's own stories in an area pronounced upon authoritatively by a multitude of discourses. This revised version was published online in July 2006 with corrections to the Cover Date.     

Homonormative Collusions and the Subject of Rights: Reading <Emphasis Type="Italic">Terrorist Assemblages</Emphasis>

This essay provides an analytic review of Jasbir Puar’s book, Terrorist Assemblages (2007), situating her discussion and analysis of “homonationalism” within the context of recent developments in queer theory in the USA, and specifically, critiques of queer liberalism and gay imperialism; racial analyses of hetero- and homo-normative formations; and challenges to identity politics and representational frameworks that dominate LGBT studies. It takes up Puar’s interest in finding new methods and ‘reading’ practices to track certain shifts in LGBT politics and to account for alignments between (white) queerness and normative, nationalist and imperial interests. Engaging with and expanding on her analysis, this paper discusses the challenge that Terrorist Assemblage poses to the identity categories that undergird human rights campaigns, and addresses the racist and nationalist sentiments that she locates within them.     

The Dutch Homo-Emancipation Policy and its Silencing Effects on Queer Muslims

The recent Dutch homo-emancipation policy has identified religious communities, particularly within migrant populations, as a core target group in which to make homosexuality more ‘speakable’. In this article we examine the paradoxical silencing tendencies of this ‘speaking out’ policy on queer Muslim organisations in the Netherlands. We undertake this analysis as the Dutch government is perhaps unique in developing an explicit ‘homo-emancipation’ policy and is often looked to as the model for sexuality politics and legal redress in relation to inequalities on the basis of sexual orientation. We highlight how the ‘speakability’ imperative in the Dutch homo-emancipation policy reproduces a paradigmatic, ‘homonormative’ model of an ‘out’ and ‘visible’ queer sexuality that has also come to be embedded in an anti-immigrant and specifically anti-Muslim discourse in the Netherlands. Drawing on the concept of habitus, particularly in the work of Gloria Wekker, we suggest that rather than relying on a ‘speakability’ policy model, queer Muslim sexualities need to be understood in a more nuanced and intersecting way that attends to their lived realities.