Esthetics and Methods in the Study of Sexual Rights
| Published date | 01 December 2017 |
| Date | 01 December 2017 |
| Author | Jonathan Goldberg-Hiller |
| DOI | 10.1177/0964663917727343 |
| Subject Matter | Articles |
Article
Esthetics and Methods in
the Study of Sexual Rights
Jonathan Goldberg-Hiller
University of Hawai‘i, USA
Abstract
The study of sexuality has been and remains a seminal project for Social & Legal Studies.
This article utilizes the political/esthetic theory of Jacques Rancie
`re in order to explore
the dimensions of this project as an intervention in the field of sociolegal studies from the
Journal’s inception to contemporary concerns. Early studies of sexuality in the Journal
developed three methodological themes: law as deconstructable process, as con-
sequential for the performative aspects of nonessentialized identities, and as potentially
destabilized by highly mobile rights claiming. This article seeks to understand whether
this unique agenda for the study of gender, sexuality, and law remains viable. It concludes
that the nonessentialist fluidity of gender and sexuality which framed early approaches to
the study of the consequences of rights and the relationship of sexual and gender identity
requires renewed attention to the structures of race, colonialism, and imperialism
enabling and enabled by contemporary queer critique.
Keywords
Rights, sexuality, theory
Esthetics and Methods in the Study of Sexuality and Legality
It is not uncommon today to conduct our research through electronic databases, search-
ing for key words or relying on the synthetic predictive powers of Google Scholar and
other indexes to map our fields of inquiry. These digital research techniques are powerful
and focused, but they have changed the ways in which many of us read and think about
the journals that select and edit our scholarship. Journals are increasingly assessed on the
digitally derived citational ‘impact’ of individual articles. And our own reading may be
Corresponding author:
Jonathan Goldberg-Hiller, University of Hawai‘i, 2424 Maile Way, Honolulu, HI 96822, USA.
Email: hiller@hawaii.edu
Social & Legal Studies
2017, Vol. 26(6) 757–775
ªThe Author(s) 2017
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663917727343
journals.sagepub.com/home/sls
prompted by electronic ‘alerts’ that direct our attention within predetermined trajec-
tories. Often lost in this utilitarian and commodified way of seeing are the subtle mean-
ings that journal editors give to selections and collections that shape our intellectual
fields and the broader but diffuse political, social, and esthetic influences that journals
bring to the kinds of work that maintain our engagement as scholars.
As we celebrate the 25th Anniversary of Social & Legal Studies, it is hard not to look
at these subtler factors as most worthy of mention and renewed cultivation. For, while
SLS has made an enduring impact in sociolegal studies by many digitally observable
measures, its sustenance of a particularly vital and critical vision for the study of law
around which a community of scholars has collaboratively written, reviewed for peers,
and edited has – often unnoticed – built and sustained the problematics we have indivi-
dually and collectively engaged and developed. In this article, I want to reexamine the
original vision for this journal and assess its significance today for studies of sexuality
and law. Social & Legal Studies was the first sociolegal journal to extensively attend to
this area of scholarship and to explicitly embrace a queer legal and political agenda. How
productive has this framework for studying law been, and how well does it serve our
current needs as critical scholars of the law? As we mark a quarter century of scholarship
published in this journal, what intellectual vision should now guide this Journal?
This stocktaking comes at a propitious time within queer legal studies, and it high-
lights the historical arc of the journal that encompasses one of the most dramatic socio-
legal phenomena since the rights revolution (Epp, 1998). In 1993, a year after the journal
first began publication, a state constitutional challenge to the denial of a marriage license
for three same-sex couples in Hawai‘i produced the first legal acknowledgement of the
legitimacy of the claim for ‘same-sex marriage’ (Baehr v. Lewin, 1993). The Hawai‘i
Supreme Court did not find a fundamental right to same-sex marriage. Nonetheless, by
remanding the case due to a finding that the denial of a marriage license could affect the
right to be free of discrimination on account of sex (gender), the Hawai‘i court became
the first high court to acknowledge that a demand for same-sex marriage stated relevant
legal grounds. This case began a seismic rumble through American politics, inspiring
social movements in support and against as well as legislative efforts to seize control of
the issue, while the legal acknowledgment of same-sex marriage diffused internationally.
In this Journal’s 22rd year, the United States Supreme Court in Obergefell v. Hodges
(2015) ruled that same-sex marriage was a constitutional right, following statutes and
legal rulings in the Netherlands, Belgium, Spain, Canada, South Africa, and 13 other
countries. The speed of this (still ongoing) trajectory from legal idea to legal right is
remarkable on its own. Additionally, this rapid change has also catalyzed a tremendous
amount of theoretical work about social movements and the law, the biopolitical frame-
works in which rights and equality are imagined to inhere, the pathways of legal diffu-
sion, and the consequences for social justice, among many other issues that have been
central to the aims of this journal and queer activists alike. While the assessment of what
the struggle for same-sex marriage has wrought for the lives of sexual minorities is still
ongoing, the assessment of its productivity for sociolegal scholarship is important today.
What might it mean to think this assessment from the perspective of a sociolegal
journal’s critical interventions in the field of law? Max Weber argued that modern law
was driven by a logically inflected rationalization that made it increasingly autonomous
758 Social & Legal Studies 26(6)
To continue reading
Request your trial