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