Vol. 7 No. 4 (April 1997) pp. 183-186.

LAW'S DESIRE:  SEXUALITY AND THE LIMITS OF JUSTICE by Carl F. Stychin.  New Rutledge, 1995.  186pp.
Reviewd by Susan Burgess, Department of Political Science, University of Wisconsin - Milwaukee.

It's deja vu all over again, as Yogi Berra once said. "Ellen" is coming out in a situation comedy on ABC-TV. The right is outraged in an uproar that family oriented Disney is allowing deviant (homo)sexuality to be represented on one of its shows and concerned that it will challenge core American values. Much of the media seems resigned to the airing of the episode and rather irritated about all the attention being paid to what they think is a mediocre sitcom.
At an APSA meeting about two years ago, I was dressed in conference drag and on my way to a panel that I was chairing that had "queer" in its title. I found myself in an elevator with two middle aged white guys who were discussing whether the "proliferation" of such panels was a problem. After much discussion back and forth, one of the guys finally allowed that the emergence of more gay and lesbian panels was an inevitability, regardless of whether they thought it was a good thing or not. Conceding that maybe that was ok, but signalling his discomfort and frustration that same guy asked, "but do they have to call it *that*?" Had Carl Stychin been in the elevator, he undoubtedly would have offered up an emphatic "yes, we have to call it queer!"
 
What is queer, according to Stychin? A hip alternative for the old terms gay and lesbian? A simple reference to Queer Nation's rage based demands for greater government attention and funding during the earlier stages of the AIDS crisis? An appropriation of the mainstream's term of derision for those who deviate from the society's sexual norms? Stychin draws on these popular understandings, as well as academic queer theory in an effort to unite theory and activism in LAW'S DESIRE: SEXUALITY AND THE LIMITS OF JUSTICE.
 
Queer theory maintains that western language systems create meaning through a series of binary categories, including identity categories such as heterosexual / homosexual or straight / gay. Although the terms in these binaries appear fixed and natural, Stychin argues that they are actually contingent, socially constructed. The terms in each binary are mutually dependent such that each term gains meaning only in relation to its oppositional partner; in addition, the major term gains legitimacy from the purported deviance of the minor term. Thus, in order to be a meaningful and normal, heterosexuality needs homosexuality to exist and to be rendered deviant.
 
This construction of sexuality is naturalized through various discourses, including law. Law desires "the 'homosexual,' against whom a coherent heterosexuality can be promoted" (1). That is, in order to have a "normal" sexuality there must be an "other" sexuality (against which the first appears normal) and law seeks to find this other. Yet, despite its desire to do so, law never fully succeeds in creating air-tight fixed categories; slippage between the categories inevitably emerges in practice, creating the possibility of legal and political change. Savvy political strategy aims to highlight the slippage, thereby problematizing the "normal," and queering the boundaries of socially constructed binaries.
 
Stychin aims to do this in Chapters 2 - 7 which address the import of queer legal theory for understanding a wide variety of contemporary political and legal issues including Congressional restrictions on funding for the arts in the U.S; attempts to control the representation of homosexuality in Britain; gays in the military in the U.S. and Canada as an example of the legal construction of homosexuality and the nation-state and criminal prosecutions of sadomasochism in Britain. For example, Stychin's discussion of the controversy surrounding the "NEA Four" convincingly shows how Senator Jesse Helms' fear that homosexual representation may successfully challenge core American values by leading some heterosexuals to covert to homosexuality, unwittingly reveals heterosexuality's dependence upon a fixed and demonized category called homosexuality, as well as a deep fear that both categories are actually much more fluid and contingent than they usually are understood to be.
 
Of the middle chapters, I found Chapters Three and Four most interesting. These chapters offer a theoretical and practical critique of MacKinnonite anti-pornography legislation in the U.S and Canada, from the standpoint of gay male pornography. MacKinnon argues that when men are demeaned in gay male pornography in a manner similar to the way in which women are objectified in mainstream pornography gay men (or transsexuals or children) are feminized. Accordingly, in MacKinnon's view, gay male pornography not only demean the gay male who is portrayed as submissive or as the receiver, it also contributes to objectification of women and sex discrimination, despite the fact that women are typically not represented in such works. Stychin argues that the MacKinnon's view is based on a fixed binaristic concept of gender which assumes a false unity amongst men generally, and male viewers of pornography more specifically.
 
Using gay male sadomasochism as his prime example, Stychin argues that MacKinnon's position is problematic both theoretically as well as strategically; his choice of example is important because, for MacKinnon, heterosexual sadomasochism is the prototypical dehumanizing and objectifying sexual practice that creates and fosters male supremacy over women. Stychin claims that unlike heterosexual sadomasochism, gay male sadomasochism can reconstitute the very meaning of MacKinnon's most problematic signs and concepts (such as the phallus, dominant and submissive, penetrating and receiving), through a parody of gender and power, thus revealing contingency between the signifier and the signified as well as the lack of unity of the category "male".
 
Setting out possibilities ranging from rape to partner abuse to emotional manipulation, and deceit and coercion, Stychin argues that all relationships, sexual or otherwise, are imbued with power dynamics, some subtle and some more apparent. Thus, he contends, the possibility of abuse or dehumanization exists no more in sadomasochistic relations than it does in any other relationship, as in, teacher - student relations, for example. He argues that gay male sadomasochism presents the possibility of men celebrating submission and receiving and parodying dominance and penetration in a manner that undercuts the traditional male values of hierarchy and dominance bound up with heterosexual sadomasochistic practice. In short, Stychin believes that by lumping gay male pornography in with mainstream pornography, MacKinnon undercuts the possibility that gay male pornography may offer a site of resistance to the heterosexual male supremacist gender and sexual values she so opposes.
 
Because Stychin's argument is complex it can't be fully represented here. However, even in its complexity, it appears that the distinction between abusive and non-abusive sexual practices, sadomasochism included, centers on parties freely consenting to agreed upon behavior. Of course, MacKinnon's take on consent is that silence, especially women's silence, does not necessarily amount to agreement. I don't think Stychin would disagree. Since, according to MacKinnon, sadomasochistic pornography feminizes submissive gay men, it would seem that she would extend her take on this to include gay men. Stychin, of course, would take issue with MacKinnon's blanket inclusion of gay men in this formulation.
 
In addition, MacKinnon seems to contend that there are some practices, sadomasochism included, that one cannot consent to because they alienate that which cannot be alienated -- much the way that Locke appears to discuss the issue of slavery while establishing the grounds for limited government in his SECOND TREATISE. I don't think Stychin would agree with MacKinnon (or Locke) about this matter, but I wonder what he would say with regard to the question of his theory's import for limited government. In addition, I find it curious that Stychin (and much of queer theory, in my view) often appear to wind up back at the liberal problem of individual consent as a prerequisite of freedom or liberation.
 
I used this book this semester in a junior / senior level undergraduate constitutional theory class and students seemed to be able to handle it as well as the mainstream constitutional theory, critical race theory and feminist theory we read in the rest of the class. Stychin's critique of MacKinnon's allowed for lively discussion her model anti-pornography ordinance, and offered students an interesting alternative to the Seventh Circuit's rather different critique in AMERICAN BOOKSELLERS ASSOCIATION INC. V. HUDNUT (771 F.2d 323 affirmed mem., 475 1001).
Stychin's book is important because it is, to my knowledge, the first single-authored book length volume that explains in detail the import of queer theory for legal theory; it is well done because it raises difficult and important political and legal questions without trying to resolve them in a facile manner.
 
My only regret is that there is not much queer performativity in Stychin's mode of presentation; he takes on the painstakingly straight, deadly serious style of most mainstream oral and written scholarly presentations. I wish queer scholars would begin to parody that style, because I don't think we can effectively challenge mainstream concepts at the same time that we adopt, in an uncritical fashion, mainstream presentation styles and the social forms upon which they are based.
About that panel I chaired two years at the APSA. By Stychin's lights it really wasn't queer after all -- it was merely gay and lesbian. So maybe the joke was really on those two guys who were so uncomfortable with the usage of queer in the panel title. Maybe that panel wasn't really all that much of a challenge to heterosexuality. Maybe the proliferation of gay and lesbian panels serves to uphold the dominance of the mainstream (heterosexual) panels in a way that doesn't really upset too much of the current structure.
 
Gotta go. "Ellen" is coming on and out. It's deja vu all over again.
 


Copyright 1997 by the author