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9. A representative gay political reservation about bisexuality is encapsulated in David M. Halperin’s claim that the category of queerness “invites the kind of hostile political manipulation that already is all too familiar to lesbians and gay men from the deployment of the label ‘bisexual’: it provides a means of de-gaying gayness. Like ‘bisexual,’ though for different reasons, ‘queer’ would seem to provide a ready-made instrument of homophobic disavowal: inasmuch as it reconstitutes sexual identity under the sign of the political, it has the capacity to despecify the realities of lesbian and gay oppression, obscuring what is irreducibly sexual about those practices and persons most exposed to the effects of sexual racism” (Halperin, Saint Foucault: Towards a Gay Hagiography [New York: Oxford University Press, 1995], 65). Coming from a spokesperson for queer theory, this critique of bisexuality necessarily qualifies the widespread assumption that queer betokens an expanded rubric of inclusivity for sexual minorities.

Substantial counter-arguments to this negative view of bisexuality may be found in Marjorie Garber, Vice Versa: Bisexuality and the Eroticism of Everyday Life (New York: Simon and Schuster, 1995); and Jonathan Dollimore, Sex, Literature and Censorship (Cambridge: Polity, 2001).

10. See Tim Dean, “Two Kinds of Otherness and Their Consequences,” Critical Inquiry 23:4 (Summer 1997): 910-920.

11. See Lee Edelman, Homographesis: Essays in Gay Literary and Cultural Theory (New York: Routledge, 1994) and the work of Judith Butler, who stages confrontations with the impasses of anti-identitarianism in book after book.

12. Dean, “Homosexuality and the Problem of Otherness,” in Homosexuality

and Psychoanalysis, ed. Tim Dean and Christopher Lane (Chicago:

Sameness without Identity University of Chicago Press, 2001), 120-143.

13. The term clone does not appear in a comprehensive lexicon of gay slang originally published in 1972, an omission suggesting that its earliest argot usage must have been the mid-1970s. See Bruce Rodgers, The Queens’ Vernacular (San Francisco: Straight Arrow Books, 1972); reprinted as Gay Talk: A (Sometimes Outrageous) Dictionary of Gay Slang (New York: Paragon, 1979).

14. Foucault writes: “We were right to condemn institutional monosexuality that was constricting, but the promise that we would love women as soon as we were no longer condemned for being gay was utopian. And a utopia in the dangerous sense, not because it promised good relations with women but because it was at the expense of monosexual relations. In the often-negative response some French people have toward certain types of American behavior, there is still that disapproval of monosexuality. So occasionally we hear: ‘What? How can you approve of those macho models? You’re always with men, you have mustaches and leather jackets, you wear boots, what kind of masculine image is that?’ Maybe in ten years we’ll laugh about it all. But I think in the schema of a man affirming himself as a man, there is a movement toward redefining the monosexual relation. It consists of saying, ‘Yes, we spend our time with men, we have mustaches, and we kiss each other,’ without one of the partners having to play the nelly [éphèbe] or the effeminate, fragile boy ….We have to admit this is all something very new and practically unknown in Western societies.

The Greeks never admitted love between two adult men” (Foucault, “The Social Triumph of the Sexual Will,” trans. Brendan Lemon, in Essential Works, vol. 1, 161-162, brackets in original).

15. Blue bandannas break down like this:

Worn on LEFT Worn on RIGHT Wants Head Light Blue Expert Cocksucker Sixty-Niner Robin’s Egg Blue Sixty-Nine Cop Medium Blue Cop-Sucker Fucker Navy Blue Fuckee Cock and Ball Torturor Teal Blue Cock and Ball Torturee Clearly the implications of failing to distinguish, say, light blue from teal blue can be quite dramatic. Today, however, the hanky code has fallen into desuetude, supplanted by the greater convenience and explicitness of online cruising, in which participants spell out directly what they desire.

Nevertheless, as in newspaper personals, a form of shorthand has developed in online cruise ads that is sufficiently complex to warrant the kind 136 Penumbra of translations offered by my hanky code card. For instance, Barebackcity.

com, a website for gay men who want sex without protection, offers a handy glossary covering the 60 or so abbreviations and acronymic terms that one is likely to encounter while cruising its site (see http://misc.barebackcity.com/abbreviations.asp). What fascinates me is how—whether with the hanky code or in online cruise ads—the semiotic system tends to outstrip the competence of its users, thereby verging on a specifically symbolic order in which, as Lacan says, “man is always cultivating a great many more signs than he thinks” (Lacan, The Seminar of Jacques Lacan,

Book II: The Ego in Freud’s Theory and in the Technique of Psychoanalysis (1954ed. Jacques-Alain Miller, trans. Sylvana Tomaselli [Cambridge:

Cambridge University Press, 1988], 122). That is to say, in these subcultural semiotic worlds there is an unconscious.

16. See Dean, Unlimited Intimacy: Reflections on the Subculture of Barebacking (Chicago: University of Chicago Press, 2009).

17. Bersani, Homos (Cambridge: Harvard University Press, 1995), 107.

18. For scat, piss, spit, or “heavy S&M,” wear brown, yellow, pale yellow, or black bandannas, respectively.

19. “Only an emphasis on the specifics of sameness can help us to avoid collaborating in the disciplinary tactics that would make us invisible” (Bersani, Homos, 42).

20. Bersani, The Freudian Body: Psychoanalysis and Art (New York: Columbia University Press, 1986); see also Bersani, “Is the Rectum a Grave?,” in

AIDS: Cultural Analysis/Cultural Activism, ed. Douglas Crimp (Cambridge:

MIT Press, 1988), 197-222.

21. Bersani and Ulysse Dutoit, Caravaggio’s Secrets (Cambridge: MIT Press, 1998).

22. See Parveen Adams, The Emptiness of the Image: Psychoanalysis and Sexual Differences (London: Routledge, 1996); Graham L. Hammill, Sexuality and Form: Caravaggio, Marlowe, and Bacon (Chicago: University of Chicago Press, 2000); and Joan Copjec, Imagine There’s No Woman: Ethics and Sublimation (Cambridge: MIT Press, 2002).

23. In a brilliant meditation on Ralph Waldo Emerson’s impersonality, Sharon Cameron claims that “there cannot help but be resistance to the idea of the impersonal since the consequences of the impersonal destroy being the only way we think we know it” (Cameron, “The Way of Life by Abandonment: Emerson’s Impersonal,” Critical Inquiry 25:1 [Autumn 1998]: 31). I would argue instead that the impersonal shows the extent to which the way we think we know being is mistaken. What the impersonal destroys is not being but selfhood. Having suggested how Bersani could be read as Lacanian, I am not about to suggest that we now read him as Sameness without Identity Emersonian, but rather that his work could be considered within a genealogy of impersonality that would include Emersonian philosophy.

24. Bersani, “Genital Chastity,” in Dean and Lane (eds.), 366.

25. Bersani, “Against Monogamy,” in Beyond Redemption: The Work of Leo Bersani, ed. Timothy Clark and Nicholas Royle, a special issue of Oxford Literary Review, 20:1-2 (1998): 19.

Lacan at the Limits of Legal Theory: Law, Desire, and Sovereign Violence Steven Miller


The best place to seek the concept of law is not in the theory of law itself but in the praxis of civil disobedience. More than a political strategy, civil disobedience manifests—or rather “demonstrates”—the disjunction between the existence of the law and its essence, that is, between the existence of an unjust law and the essence from which this law should derive its authority.

This disjunction has been articulated primarily in terms of the dualism of natural law theory, which holds that any given terrestrial law (“the law of the land”) ultimately derives its authority from the law of God or the moral law.

The clearest theoretical presentation of the connection between civil disobedience and the law of God occurs in Martin Luther King, Jr.’s theologicopolitical epistle, “Letter from Birmingham City Jail”:

One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws:

there are just and there are unjust laws. I would agree with Saint Augustine that “An unjust law is no law at all.” Now what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law…Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.1 In this context, the law of God has a strictly political importance; it is the name for the principle of justice (universal equality and liberty) whereby terrestrial laws can be legitimately contested. For King, in accord with the tradition of Kantian-Christian morality, this principle is inseparable from the 140 Penumbra sanctity of human personality; every law must recognize the inviolability of human personality in order to be recognized as a law of the land. Rather than standing for a value unto itself, however, the primary value of what King calls the “moral law” inheres in its function as a test of the lawfulness of positive law. The moral law can thus be reduced to the “virtue” or “sense” of justice—reduced, in other words, to the categorical imperative that unjust laws must always be actively contested. The famous opening lines of John Rawls’ A Theory of Justice (written contemporaneously with the civil rights struggles of the 1960s) articulate just such an imperative: “Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.”2 If virtue is the political actualization of morality, then civil disobedience would be the political act that manifests the sense of justice.

The absolute value of the person, however, need not be the only test of the lawfulness of the law, just as the meaning of civil disobedience need not depend upon reference to such a value. This form of political action has an import that goes beyond its theoretical justification. Civil disobedience remains a decisive and relevant practice because it manifests the possibility of legitimate contestation—the contestation of unjust state action—that does not depend upon deference to a sacred principle (be it the Good, the Person, or the Law, along with their historical corollary, the economy of private ownership). Indeed, it is my initial working hypothesis that the question of law cannot even be posed as such until it is emancipated from its traditional complicity with the economy of personhood and private ownership. On this point, my discussion follows certain basic theses of the legal thought of both Hans Kelsen and Jacques Derrida.3 The works of these seemingly incompatible thinkers are linked through their fidelity to the Kantian tradition—or rather, through their attempt to inherit the Kantian tradition in a way that takes it beyond its entrenchment in the values of personhood and property.4 The attempt to think such an emancipation of law from the property system involves two major difficulties. First, contestation: if the law can no longer be conceived on the basis of its adherence to a transcendent principle, what is the basis for its legitimate contestation—that is, a possible contestation of legalized injustice that does not abrogate fidelity to the rule of law as such? In the name of what does one contest injustice if not the inviolability of the person and his property? Second, violence: the price of affranchising the question of the law from its complicity with a legal system designed to protect private property is a more complex engagement with the relation between law and violence. Kelsen’s theory is exemplary on this point: he holds that the only possible concept of law, a concept that would transcend the relation between Lacan at the Limits of Legal Theory juridical institutions and specific politico-economic systems (capitalist or communist), would be a concept that defines law according to the horizon of its enforcement, that holds the force of law to be intrinsic to law as such.

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