Queer in the law: critique and postcritique

Since their inception, queer theories have had a remarkable influence on how we think of law’s effects on social reality. In particular, in the past three decades the debates and polemics that have arisen in this burgeoning subject area have shed a critical light on how the law grants social speakability and political agency to forms of sexuality and types of relationships that become ‘respectable’, insofar as they gain access to legal recognition and state protection. As this access comes at a price, queer theorists acknowledge the importance of legal recognition, but are alert to its costs. This is why they have variously explored the tacit dynamics of negotiation and adjustment that this recognition requires. This chapter homes in on such a notable contribution to the analysis of these tacit dynamics. It commences by illustrating the meaning of the queer as a signifier and why it has become such an important field of study. Although reductive, for the sake of clarity I will look at three lines of the queer lineage (to wit, Freudo-Marxism, radical constructivism and antisocial theories) and will briefly foreground how they think of law and its relation to sexuality. I will then focus almost exclusively on the second line insofar as it captures the ambivalence of legal recognition. To cut deeper into this ambivalence, I will touch upon the same sex marriage debate and will dwell on the heated contrapositions that still surround it. This discussion will tease out the fine line between resignification and assimilation; that is, how claims to legal recognition affect the law in a transformative manner and to what extent these very claims are reabsorbed into a constrictive lexicon that effaces the challenging character of same sex sexuality. The chapter will conclude by gesturing to a more recent version of the queer (postcritical queer theory), one that draws significantly from the second line but innovates it in some significant respects.