Book Reviews
| DOI | http://doi.org/10.1111/1467-6478.00048 |
| Date | 01 June 1997 |
| Published date | 01 June 1997 |
Book Reviews
306
© Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
Critical Approaches to Sexuality and Law
Book Reviews
LAW’S DESIRE: SEXUALITY AND THE LIMITS OF JUSTICE by
CARL STYCHIN
(London: Routledge, 1995, ix and 186 pp., £13.99 pb., £40.00 hb.)
THE HOMOSEXUAL(ITY) OF LAW by LESLIE MORAN
(London: Routledge, 1996, viii and 248 pp., £16.99 pb., £50.00 hb.)
In recent years, a liberal ‘equal rights’ perspective has characterized much
of the political campaigning and legal scholarship concerned, as a normative
matter, with improving the entitlements of lesbians, gays, and other sexual
minorities. Advocates of this reformist strategy tend to see lesbians and gays
as members of a stable and clearly defined ‘minority group’, meriting equal
treatment – within the parameters of the prevailing legal/political system –
with those who fall within an equally stable heterosexual ‘majority’. By
contrast, advocates of queer theory – a rather ad hoc mixture of sociology,
metaphysics, epistemology, and liberationist political philosophy – have
tried to challenge both the notion of fixed sexualities and the efficacy of
‘assimilationist’ civil rights work.1Queer theory and critical legal scholarship
are, at least in this context, close political soulmates.2In analysing the law’s
treatment of particular sexual minorities, Stychin’s Law’s Desire and Moran’s
The Homosexual(ity) of Law seek to apply insights offered, respectively, by
each.3
While Law’s Desire tries to apply queer theory to law, its focus inevitably
moves far beyond the law itself. By considering three controversial sets of
legal issues – the regulation of pornography and sexually explicit expression;
the regulation of sado-masochistic sexual acts; and the barring of lesbians
and gays from military service – Stychin develops a general account of the
social and legal construction of sexuality and identities in Canada, the
United States of America, and the United Kingdom. This account involves
three themes (pp. 7–9). The most important is the claim that:
legal discourse is an important site for the constitution, consolidation and regulation
of sexuality and, in particular, the homo-hetero sexual division. Sexuality is socially
constructed and law participates in this process’ (p. 7).
Stychin is arguing here that law constitutes heterosexual practices and
identities as normal – and that this process requires them to be consolidated
against an ‘unnatural’ and ‘deviant’ homosexuality. The second theme is
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© Blackwell Publishers Ltd 1997
that the concept of identity is itself problematical, for in an era of
postmodernist analysis, it cannot plausibly be claimed that any identity
category is held together by fixed, essential truths. Instead, identities are
contingent and variable. This causes problems for those campaigning for
fairer social and legal treatment for lesbians and gays, who have frequently
relied on heavily essentialist accounts of lesbian or (more usually) gay
sexuality in response to conservative portrayals of gay men as predatory
threats to ‘normal’ heterosexuals. The third theme is that law naturalizes a
series of binary divisions ‘such as homo/hetero; public/private; and inside/
outside’ (p. 8), all of which are in need of deconstruction.
A large part of the book’s analysis of specific legal issues focuses on the
relationship between dominant and minority identities. Frequently, Stychin
argues, the law will intervene to defend the dominant identity from perceived
attacks by the ‘other’, although this process will usually prove futile since
identities are often forged through resistance to oppressive uses of power
(pp. 7, 35, 48–50). In the case of sexual identities, the use of law as a defence
conveys a rather curious impression of heterosexuality – as something ‘natural’,
yet immensely vulnerable to challenge. Thus, the notion of ‘promotion’ in
section 28 of the 1988 Local Government Act clearly implies that
heterosexuality is a fluid, mutable condition, and that young males run the
danger of being corrupted away from it by the seductive lure of homo-
sexuality (pp. 38, 53). A similar view, Stychin suggests, underpins the long-
standing United States military employment rules whereby service personnel
were discharged for asserting a lesbian or gay identity but not (necessarily)
if they had participated in a same-sex sexual act and had shown sufficient
contrition.4Since such rules were not concerned with so-called ‘immoral’
acts on their own, their clear target must have been the dangerously seductive
potential of openly gay personnel in an alleged bastion of heterosexuality
(pp. 94–9). Finally, the reasoning of the majority of the House of Lords in
the Brown case,5together with the attitude of the English news media towards
a spate of serial murders of gay men, indicate ‘the production through
discourse of the figure of the homosexual – sado-masochistic, polluted,
addicted to his desires, self-destructive, and yet terrifyingly seductive’
(p. 139).
On its own, this might be seen as an advanced version of the argument
that the law will always seek to uphold its vision of the social status quo.
As the book progresses, however, it becomes apparent that Stychin is making
the more radical claim that any identity – sexual, national, or military –
actually requires the presence of an outside ‘other’, often portrayed as
dangerous, in order to shore itself up (p. 105). In his discussion of the
possibility of constituting a queer (as opposed to lesbian or gay) identity,
for example, Stychin asks rhetorically whether ‘an identity can avoid creating
a series of exclusions through a set of boundaries by which the identity is
coherently constituted’ (p. 147) – an important remark revealing a fundamental
difficulty in any identity-based politics (the value of which is usually either
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