Queer Legal Theory Flashcards
1
Q
Legal Consciousness
A
- “Refers to the way that people conceive of their ‘natural’ and normal way of doing things, their habitual patterns of talk and action and their commonsense understanding of the world”… “embedded in the practical constitution of everyday life, part and parcel of the processes whereby the subject is constituted by external sociocultural forms” (Merry 1990, 5). (p. 529)
- Group knowledge of law leads to the creative application of legal principles in order to establish new law
- Population begins to comprehend legal consciousness through rights and freedoms AND a judiciary that is starting to utilize their power = produce a moment in Canadian history
- 1982 - the Charter and judicial activism
- US-style “civil rights strategy”
- Ex. Bathhouse raids (20th century)
- 1981 “Operation Soap”
- Raid of 4 bathhouses by police
- The humiliation of gay men found in bathhouses
- Smith talks about how legal consciousness goes hand and hand in judicial empowerment
- “I argue that Canada provides such extensive recognition of lesbian and gay citizens because of the impact of judicial empowerment on social movement politics and public policy in the lesbian and gay area
- In the Charter, the courts become a central place to ensure rights
2
Q
Judicial empowerment
A
- Movement of advocacy for the queer community
- Gay activism is one of the successful groups in terms of Charter movements
- In 1982, the Canadian Charter and judicial activism
- Judicial empowerment configured the growing queer movement into litigation and rights-based politics.
- Judicial activism in the Charter is practiced by judges as they hold the role of interpreting the Charter and is capable of acknowledging whether legislation is discriminatory
Judges adjudicate rights and freedoms, and they began to recognize if the law is oppressing queer individuals
Ex. the recognition of human rights + same-sex marriage
- Canadian Human Rights Act
- Same-sex marriage
- S. 13 of Canadian Charter
Miriam Smith
- Judicial empowerment: “the enhancement of the role of the judiciary in the political system and the extension of the jurisdiction of courts and legal adjudication into new areas of public policy” p. 329)
- “I argue that Canada provides such extensive recognition of lesbian and gay citizens because of the impact of judicial empowerment on social movement politics and public policy in the lesbian and gay area” (p. 328)
- In Canada, the process of legal mobilization in the lesbian and gay rights case was critically shaped by the timing of judicial empowerment, relative to the emergence of the post-Stonewall lesbian and gay movement.
- In the Charter, elected politicians would have avoided the hot button of gay rights. The impact of judicial empowerment thus has been to force lesbian and gay rights onto the political agenda in a way that defines the issue as falling within the ambit of Charter-protected human rights, rights that are increasingly sacrosanct in Canadian political culture.
3
Q
Liberal rights
A
- Over a 20-year period, judicial empowerment in Canada has encouraged and reinforced a certain type of social movement politics dedicated to liberal rights-claiming using litigation as its greatest strategic asset
Hate crimes prohibited by s. 318 & 319 of the Criminal Code of Canada
- Until very recently, trans* people have been excluded from basic rights protection
- Started to be incorporated under sex and/or ability discrimination provisions but specific trans* based provision recommended
• Provincial level: Human rights…
• At the federal level on June 15, 2017 the Senate approved the addition of gender identity and gender expression…
4
Q
Perpetrator/victim power
A
- Developed by Alan Freeman in the context of race
- Prevents us from looking at theunequal conditions that entire populations experience because it focuses on the intentional actions of individual discriminators
- Most easily recognized in liberal and rights-based frameworks as violation requiring remediation
- Law understands racist harms based on the perpetrator-victim dyad
- Law individualizes and dehistoricizes racism
- The significance of systematic racism (much harder to eradicate)
- Opportunities, property, health, and life taken away from individual victims because of thebad ideas put into action by perpetrators
- Individuation links this model to liberalism’s model of harm
Ex. Hate Crime Laws
- Spade thinks this is a problem
- Makes us think that the state is a neutral arbiter
- because the state is so fair, it will punish us to a greater degree if we commit such crime (hate crime)
Problematic:
- No deterrent effect - doesn’t stop real people from being beaten up and killed
- Gives more power to a system that criminalizes the marginalized
- merely gives power to the police, who harm racialized individuals
5
Q
Disciplinary power
A
Foucault
- In “Society Must Be Defended,” Foucault outlines disciplinary power as “anatomo-politics” which emerged in the early period of the 18th-century
- Foucault defines disciplinary power as a form of power that concentrates on the individual body
- Disciplinary power operates through norms and conventions applied to individuals, who consequently submit to standard societal customs.
Dean Spade
- Reports disciplinary power as the method in which individuals learn to become a man, a woman, brilliant, cordial, and to divert away from becoming a criminal, immoral, diseased, and more (Spade 2011, p. 104-5)
- Individuals are conditioned to follow a paradigm of acceptable identities and roles.
- Teaches us the proper way of being.
- Disciplinary power creates a division in ideologies such as heterosexuality versus homosexuality.
- The creation of classifications such as criminal, homosexual, and more ultimately construct the criterion of lawful, heterosexual, and more (Spade 2011, p. 106).
- Creation and maintenance of such categories of people (e.g., the homosexual, the criminal, the welfare dependent mother, the productive citizen, the terrorist) establish guidelines and norms (e.g., punctuality, heterosexuality, monogamy, dietary norms, racial segregation, manners, dress codes).
- These norms are enforced through internal and external policing and discipline
- Disciplinary mode of power refers to how racism, transphobia, sexism, ableism, and homophobia operate through norms that produce ideas about types of people and proper ways to be.
- These norms are enforced through internal and external policing and discipline
- The invention of various categories of proper and improper subjects is a key feature of disciplinary power that pervades society.
6
Q
Population-management power
A
- At the national level
- Fabricates ideologies about the population’s collective identity of who is acceptable by the nation’s standards, and who are categorized as the “other.”
- Operates through its regulation of the population
- Policies of national health and security
- Programs such as the criminal justice system, welfare, immigration, and more are mediums of population-management
- Markedly, this power technique promotes the enhancement of life and the standard criterion of the well-being of the population
- The nation comprehends its vulnerability when exposed to the subordinate “other” which national policies and programs present as threats to the health of the population.
Ex. White population vs. people of color, LGBT+, etc.
- Power is not primarily operating through prohibition or permission but rather through the arrangement and distribution of security and insecurity
- Distributes life chances across populations
- Includes interventions that impact the population as a whole; usually undertaken thought the logic of promoting the health or security of a nation
-The collection of standardized data across the population creates state-ness itself
population management is perhaps the
mode of power that is least comprehended and addressed through liberal claims to rights and formal legal equality. - Population-management mode of power mobilizes those standards and meanings to create policies and programs that apply generally.
